author: CARLSON, Presiding Justice, DICKINSON, Presiding Justice,

text:
    David Anthony JACKSON a/k/a David Jackson v. STATE of Mississippi.
    No. 2011-KA-00169-SCT.
    Supreme Court of Mississippi.
    June 21, 2012.

      Aafram Yaphet Sellers, Jackson, Brice Rashod White, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before CARLSON, P.J., PIERCE and KING, JJ.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. David Anthony Jackson appeals his house-burglary conviction and twenty-five-year penitentiary sentence. Finding no error, we affirm the judgment of conviction and sentence entered in the Circuit Court for the First Judicial District of Hinds County.

PROCEDURAL HISTORY

¶ 2. The Jackson home of former United States Senator and Mrs. Trent Lott was burglarized on April 27, 2009. Jackson was indicted on October 2, 2009, by the Grand Jury for the First Judicial District of Hinds County for the felonious breaking and entering of a dwelling house with the intent to take, steal, or carry away the property of the homeowner in violation of Mississippi Code Section 97-17-23 (1972, as amended). On October 18, 2010, Jackson was brought to trial in the Circuit Court for the First Judicial District of Hinds County, Judge W. Swan Yerger presiding. The State called ten witnesses and offered thirty exhibits into evidence. When the State rested, Jackson moved for a directed verdict, which was denied. The defense rested without offering any evidence. The trial court refused one of Jackson’s proposed jury instructions, D-3, which provided for the lesser-included offense of trespass. On October 21, 2010, the jury found Jackson guilty of house burglary. He was sentenced by the trial judge as a habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections.

¶ 3. On October 29, 2010, Jackson filed a Motion for Judgment Notwithstanding the Verdict, Or In The Alternative, For A New Trial. The circuit court denied this motion. Aggrieved, Jackson filed this appeal, raising three assignments of error: (1) that the evidence was insufficient to sustain his conviction, specifically that the State failed to establish Jackson’s intent to commit the crime of larceny once inside the house; (2) that the trial court erred in refusing to give Jackson’s proffered jury instruction (D-3) for the lesser-included offense of trespass; and (3) that the trial court erred in denying Jackson’s Motion for a Directed Verdict and his Motion for Judgment Notwithstanding the Verdict, or in the Alternative, for a New Trial.

FACTS

¶ 4. Since two of the three errors assigned by Jackson in today’s case pertain to the legal sufficiency of the evidence and the weight of the evidence, it is necessary that we set out the facts of this case in detail. Extensive trial testimony was delivered by a number of witnesses. Our presentation of the facts comes via the witnesses who testified for the State of Mississippi during the trial. The defendant, David Anthony Jackson, offered no evidence in his case-in-chief. Whenever we are confronted with an attack on the sufficiency of the evidence, we are required to view the evidence in the light most favorable to the prosecution. Taylor v. State, 62 So.3d 962, 965 (Miss.2011). Thus, we present the testimony of the witnesses in this light.

Deputy Charles Hamil

¶ 5. On April 27, 2009, Deputy Charles Hamil of the Hinds County Sheriffs Department was dispatched to investigate a house alarm that had gone off at the Lotts’ home in Jackson. The Lotts’ house was located approximately a mile and a half from any other dwelling and was in a wooded area. Deputy Hamil noted a blue SUV parked at the side of the road, which struck him as unusual, since the Lotts own both sides of the road. When Deputy Hamil got to the main entrance of the property, two men in a white truck came down the driveway and explained to Hamil that they had been cutting trees on the property and had noted that the house’s back door had been kicked in. Hamil did not remember the names of the two men, but from the record, it is clear that these men were Dwight McCrory and Morris Gray. Hamil asked McCrory to stay with the vehicle, and then he and Gray approached the house.

¶ 6. Hamil noted that the door had been kicked in and announced himself loudly. He checked the house thoroughly, but did not find anyone in the house. The door had been forced open, and a footprint was visible on the door. Drawers lay open, and personal property was strewn about the house, which Hamil noted was indicative of a house burglary. In particular, Hamil recalled that the gun cabinet and a study desk appeared disturbed; in the latter case, paper had been strewn everywhere.

¶ 7. McCrory, who had been standing by the SUV, called Gray, who was still with Hamil, and reported seeing a man running across the road and into the woods. Ham-il began a foot pursuit of the man through the woods. While still in the woods, Hamil was informed via radio by Deputy Kenneth Ledford, who recently had arrived at the scene, that the suspect was fleeing down the road. By the time Hamil got back to the road, other deputies had taken the suspect, later identified as Jackson, into custody.

Deputy Kenneth Ledford

¶ 8. Deputy Ledford arrived on the scene in response to a dispatch concerning Hamil’s investigation, and Hamil requested that he (Ledford) station himself next to the SUV, a Chevrolet Blazer. Ledford learned that the tag on the SUV had been issued to Carolyn Jackson, who later was discovered to be Jackson’s wife, and Led-ford found Jackson’s driver’s license in the car. Ledford stated that Captain Nathaniel Ross arrived on the scene and asked Ledford what the suspect was wearing. When Ledford relayed that he had on dark shorts, a gray shirt, and tennis shoes, Ross told Ledford that he had just seen an individual possibly fitting that description exit the woods.

¶ 9. Thereafter, the suspect crossed the road, and Ledford and another deputy, Jack Lilley, detained him. When apprehended, the suspect, Jackson, was sweaty, had leaves from the woods on his person, and had several scratches on his skin. Ledford was able to ascertain Jackson’s address, and characterized it as “nowhere near” the Lott home. When apprehended, Jackson was not carrying any stolen items.

Morris Gray

¶ 10. Morris Gray, a groundskeeper, was on the Lott property on April 27, 2009, assisting logger Dwight McCrory, who was cutting timber on the property. As the two men passed the house, they heard the burglar alarm going off. Gray also noted that a side door had been “busted open.” Gray entered the house and discovered that someone had been going through the checkbook in the bedroom, as well as the gun cabinet. Gray called Senator Lott, who informed him that the alarm automatically would shut off after fifteen minutes. With this information, after the alarm shut off, Gray was able to estimate when the break-in had occurred. Gray did not see anyone in the house, but did notice that the bathroom door was closed.

¶ 11. Shortly thereafter, Deputy Hamil arrived and asked McCrory to stay by the car and watch for the suspect, while Hamil and Gray returned to the house. Upon reentering the house with Hamil, Gray found the bathroom door open. At this point, only five or six minutes had passed since Gray had left the house after noticing that the bathroom door was closed. While searching the house, Gray got a call from McCrory indicating that someone had just crossed the road and entered the woods. Gray believed the house door had been beaten open with a stick of firewood.

Dwight McCrory

¶ 12. Dwight McCrory had entered the house with Gray before Hamil arrived. The door appeared to have been forced open, and items had been pulled out from under the gun cabinet. McCrory observed the SUV parked about 100 yards from the property. McCrory waited by the SUV, as he was instructed to do by Hamil. While waiting there, McCrory observed someone cross the road about 200 yards away and enter the woods. McCrory alerted a deputy that the suspect was passing by, and the deputies then detained and handcuffed the suspect.

Former Senator Trent Lott

¶ 13. Senator Lott was out of town when the break-in occurred, but was immediately informed that the alarm had gone off, as well as receiving a call from his friend, Morris Gray. Both his house and a smaller, adjacent guest house were broken into, and “clearly there had been some rummaging through drawers.” It appeared to Lott that the guest-house door was broken open with a fire extinguisher and that the main-house door been broken open with a piece of firewood. A window also had been broken. Lott’s effects had been moved around, which was clearly evident to him, since he identified his habits as neat and orderly. Lott did not know Jackson and did not give him permission to be in his house. Lott could not determine if anything had been stolen. Although the Lotts did not keep much money or jewelry in the house, there were items of value in the house. A check was missing from the checkbook, on which the Lotts stopped payment, but no evidence linked the check to Jackson.

Captain Nathaniel Ross

¶ 14. Captain Nathaniel Ross of the Hinds County Sheriffs Department responded to the scene after being contacted by the dispatcher. As Ross approached the scene and before he received a description of the suspect, he noticed Jackson walking down the road, dirty, scratched, and covered in leaves and grass. Ross had a brief conversation with Jackson at that point. When Ross arrived at the scene, he asked Ledford for a description of the suspect; once he had heard it, he told Ledford that he had just passed an individual matching that description on the highway. Ross was among the officers who arrested Jackson. Ross also had seen Jackson walk directly past his own car, next to which officers were standing, without stopping or approaching the vehicle. Ross did not find any stolen property in Jackson’s possession.

Investigator Jack Lilley

¶ 15. Investigator Jack Lilley of the Hinds County Sheriffs Department also responded to a dispatch concerning the house burglary. While driving to the Lott property, Lilley heard on the police radio that the suspect had been sighted running across the road. Lilley spoke to Hamil before Hamil began his foot pursuit, then Lilley himself entered the woods in a different location, looking for the suspect.

¶ 16. Lilley went through the contents of the SUV with Ledford and found Jackson’s driver’s license. Afterward, Ross arrived and told Lilley and Ledford that he had seen a man matching Jackson’s description. The three officers then drove up to Jackson and took him into custody on suspicion of house burglary. Jackson was covered in leaves and other debris, which indicated to Lilley that Jackson had been running through the woods.

¶ 17. Sometime after the arrest, Lilley investigated the Lott property and discovered a footprint on a door which had not been forced or opened. However, he discovered another door that had been forcibly broken into. Lilley entered the house and noticed that “some things had been kind of shuffled around, were in disarray.” He particularly noted that the gun cabinet and a desk in the bedroom had been disturbed. Lilley could not recover any fingerprints. Lilley found no direct physical evidence at the house or on the property linking the burglary to Jackson.

Investigator Eric Rather

¶ 18. Eric Rather, an investigator for the Hinds County Sheriffs Department, participated in the Crime Scene Unit’s investigation of this site. Rather noted a broken window in the guest house which he believed to have been broken by a fire extinguisher, since the extinguisher had released dust in the area. Shoe impressions were on the patio of the guest house. Footprints also were inside the guest house. Rather did not find any usable fingerprints.

Investigator Trey Brister

¶ 19. Investigator Trey Brister of the Hind’s County Sheriffs Department collected Jackson’s U.S. Polo Association brand tennis shoes worn the day of the crime, and established the chain of custody. The shoes were turned over to an expert-so that he could compare them to the prints from the crime scene. No footprints, to Brister’s knowledge, were found in the main house, but only in the guest house.

Paul Sherman Wilkerson, Jr.

¶ 20. Paul Sherman Wilkerson, Jr., a Mississippi Crime Laboratory employee, is a graduate of the FBI National Academy and has attended numerous courses in footwear identification, including the FBI footwear identification course. Wilkerson is certified by the International Association for Identification as a footwear examiner, and also is certified as a forensic photographer by the International Association for Identification. Wilkerson has been qualified as an expert in the courts of the State of Mississippi more than 100 times.

1121. Wilkerson compared the prints from Jackson’s footwear to those photographed at the crime scene. He determined that the prints had the same outsole imprint, a finding which incorporated an examination of both the physical characteristics of the outsole and the physical wear upon it. Wilkerson had tested several thousand pairs of shoes, and this was the only time that he had tested shoes of this brand (U.S. Polo Association). In this case, the prints he tested all had the same physical size, outsole design, and degree of wear.

¶ 22. Wilkerson conceded that it was possible that another shoe of the same size, outsole design, and degree of wear had made the shoe impression. While Wilkerson stated that the photographs were of good quality, the footprint impressions were too indistinct for Wilkerson to determine that Jackson’s shoes and only Jackson’s shoes could have left them.

DISCUSSION

¶ 23. While we will address all issues raised by Jackson, we have chosen to organize our analysis differently from his three issues as presented. Since motions for a directed verdict and motions for judgment notwithstanding the verdict both attack the legal sufficiency of the evidence, we have analyzed these issues together with Jackson’s general contention of insufficiency of the evidence; the Motion for a New Trial, which addresses a different standard, is considered separately.

I. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION FOR A DIRECTED VERDICT AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT DUE TO THE INSUFFICIENCY OF THE EVIDENCE.

¶ 24. Jackson argues that the evidence against him was not legally sufficient to sustain a conviction for house burglary, due to the fact that the evidence did not support a finding that he had the intent to commit the crime of larceny once inside the Lotts’ house. Therefore, Jackson argues that the State failed to prove all of the requisite elements of the crime of house burglary — specifically, to prove that Jackson had the intent to commit the crime of larceny. We disagree. Ample, indeed overwhelming, evidence supported the trial court’s finding that Jackson had the intent to commit larceny once inside the Lotts’ home.

¶ 25. We also address here Jackson’s argument that the trial court erred in denying Jackson’s Motion for a Directed Verdict and in denying his Motion for a Judgment Notwithstanding the Verdict. Motions for a directed verdict and motions for judgment notwithstanding the verdict both attack the legal sufficiency of the evidence. Knight v. State, 72 So.3d 1056, 1063 (Miss.2011) (citing Bush v. State, 895 So.2d 836, 843 (Miss.2005)).

When considering a trial court’s denial of a motion for judgment notwithstanding the verdict, the standard of review is de novo. Poole v. Avara, 908 So.2d 716, 726 (Miss.2005). The trial court must view the evidence in the light most favorable to the non-moving party and look only to the sufficiency, and not the weight of the evidence. Id.

Gilmer v. State, 955 So.2d 829, 833 (Miss.2007). Since the sufficiency of the evidence is the key inquiry here, we address these arguments together. A Motion for a New Trial, on the other hand, addresses the overwhelming weight of the evidence, and therefore, that issue will be considered separately.

¶ 26. The grand-jury indictment against Jackson alleges, in pertinent part:

[O]n or about the 27th day of April, 2009 ... [Jackson] did willfully, unlawfully and feloniously break and enter, in the day or night, the dwelling house of Trent Lott, located at ... Jackson, Mississippi, with the intent to commit a crime therein, to-wit: to take, steal or carry away personal property of the homeowner therein, in the First Judicial District of Hinds County, Mississippi, in violation of Mississippi Code Annotated 97-17-23 (1972), as amended....

The statute under which Jackson was indicted, Mississippi Code Section 97-17-23 (Rev. 2006), as amended in 2008, states in pertinent part:

(1) Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by commitment to the custody of the Department of Corrections for not less than three (3) years nor more than twenty-five (25) years.

Miss.Code Ann. § 97-17-23 (Supp.2011).

¶ 27. Burglary of a dwelling has two elements: (1) unlawful breaking and entering, and (2) intent to commit a crime therein. Kirkwood v. State, 52 So.3d 1184, 1187 (Miss.2011). Felonious intent is an issue of fact which falls within the exclusive province of the jury. Croft v. State, 992 So.2d 1151, 1158 (Miss.2008) (citation omitted). Intent may be proved by circumstantial evidence. Franklin v. State, 676 So.2d 287, 289 (Miss.1996) (citing Stinson v. State, 375 So.2d 235, 236 (Miss.1979)) (citations omitted). This Court has held as follows:

Some presumptions are to be indulged in against one who enters a building unbidden at a late hour of night, else the burglar caught without booty might escape the penalties of the law. People are not accustomed in the nighttime to enter homes of others, when asleep, with innocent purposes. The usual object is theft; and this is the inference ordinarily to be drawn in the absence of explanation from breaking and entering at night accompanied by flight when discovered, even though nothing has been taken.

Brown v. State, 799 So.2d 870, 872 (Miss.2001) (citing Nichols v. State, 207 Miss. 291, 296-97, 42 So.2d 201, 202-03 (1949)).

¶ 28. In this case, the evidence showed that Jackson had parked his car away from the Lott house but on the Lott property. The window of the guest house was broken, apparently with a fire extinguisher, and the guest house had been rummaged through. At the main house, a footprint was found on a door, indicating that someone had attempted to kick down the door with a foot. Another door was broken down, apparently with a piece of firewood. The main house also had been rummaged through, with drawers and the gun cabinet opened, various items strewn around, and a check from the checkbook missing.

¶ 29. When Gray first entered the house, the alarm, which went off for only fifteen minutes after being triggered, was still going off, and the bathroom door was closed. When he returned with a deputy five or six minutes later, the bathroom door was open. A few minutes later, Jackson was seen crossing the road and disappearing into the woods. He walked right past his own car, next to which officers were standing. He later was apprehended and found scratched, dirty, and covered in leaves. Shoe-print analysis showed that the individual who had entered and rummaged through both houses had shoes of the same brand, size, and degree of wear as Jackson. Jackson does not advance the argument that another individual may have committed the crime.

¶ 30. The jury had the right to make the logical inference that Jackson broke and entered the Lotts’ main house and guest house with the intent to commit larceny. Law-abiding citizens do not break into the homes of people they do not know and rummage through their effects, then flee when their actions are discovered. The evidence at trial was sufficient to prove that Jackson had such intent, and the jury so determined after assessing the credibility of each witness and the evidence presented. Indeed, it strains credulity to argue that Jackson broke into the Lotts’ house and rummaged through their personal effects without the intent to commit larceny. The evidence was sufficient to support the verdict; therefore, we find no error in the trial court’s denial of Jackson’s Motion for Directed Verdict, and Jackson’s Motion for Judgment Notwithstanding the Verdict.

II. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION FOR A NEW TRIAL.

¶ 81. The Motion for a New Trial presents a distinct issue that addresses the overwhelming weight of the evidence. When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, this Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d at 844 (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). A motion for a new trial is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked “only in exceptional cases when the evidence preponderates heavily against the verdict.” Page v. State, 64 So.3d 482, 488 (Miss.2011) (citing Bush, 895 So.2d at 844 (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (Miss.2000))). “[T]he evidence should be weighed in the light most favorable to the verdict.” Bush, 895 So.2d at 844 (citation omitted).

¶ 32. We have discussed at length, supra, the evidence presented against Jackson at trial. Without discussing the evidence again concerning Jackson’s “weight of the evidence” argument under this issue, suffice it to state here that, from the record before us, we cannot find that the verdict was against the overwhelming weight of the evidence, nor that allowing the verdict to stand would sanction an unconscionable injustice. Therefore, the trial court acted within its discretion in denying Jackson’s Motion for a New Trial. That being the case, we find that this argument is without merit.

III. WHETHER THE TRIAL COURT ERRED IN DENYING PROPOSED JURY INSTRUCTION NUMBER D-3.

¶ 33. Jackson claims that the circuit court erred in refusing his proposed jury instruction number D-3, instructing the jury on the lesser-included offense of trespass. Jackson argues that it was reversible error not to grant this instruction, since the State did not prove that he had the intent to commit a felony while on the Lott property.

¶ 34. Where there exists a claim that a defendant “was entitled to a lesser-included offense instruction, we conduct [a] de novo review, as this is a question of law.” Downs v. State, 962 So.2d 1255, 1258 (Miss.2007) (citation omitted). This Court has stated:

The question is not whether the evidence was sufficient so that a rational jury could have found beyond a reasonable doubt that [the defendant] broke into the [victim’s] home with intent to [commit a crime] but whether the evidence is so clear that no reasonable juror could have accepted [the defendant’s] theory that his intent to [commit a crime] was formed after he was in the house....
[A] lesser included offense instruction should be granted unless the trial judge — and ultimately this Court — can say, taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser-included offense (and conversely not guilty of at least one essential element of the principal charge).

Harper v. State, 478 So.2d 1017, 1021 (Miss.1985). “The general rule with regard to jury instructions is that the trial court has considerable discretion when instructing the jury....” Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450, 474 (Miss.2010). “Only where the evidence could only justify a conviction of the principal charge should a lesser offense instruction be refused.” Ford v. State, 975 So.2d 859, 864 (Miss.2008) (citing Mease v. State, 539 So.2d 1324, 1330 (Miss.1989) (emphasis in original) (citations omitted)). “[A] trial judge may refuse a proposed jury instruction that is an incorrect statement of the law, repeats a theory covered in other instructions, or has no proper foundation in the evidence before the court.” Utz, 32 So.3d at 474, (citing Investor Res. Services, Inc. v. Cato, 15 So.3d 412, 423 (Miss.2009)).

¶ 35. Implicit in every conviction of burglary is the finding that the defendant committed a trespass. Wilson v. State, 639 So.2d 1326, 1331 (Miss.1994) (citing Anderson v. State, 290 So.2d 628, 628-29 (Miss.1974)). From the language of his proffered jury instruction on the lesser-included offense, and from the argument in his brief, it is clear that Jackson sought a jury instruction on trespass under Mississippi Code Section 97-17-87 (Rev. 2006), one of several statutes that address trespass. But Section 97-17-87 is merely a “catch-all” statute which states in pertinent part:

(1) Any person who shall be guilty of a willful or malicious trespass upon the real or personal property of another, for which no other penalty is prescribed, shall, upon conviction, be fined not exceeding Five Hundred Dollars ($500.00), or imprisoned not longer than six (6) months in the county jail, or both.

The reader is not informed as to what acts constitute “willful or malicious trespass.” The only reference to any trespass statute found in Jackson’s brief is Section 97-17-87. In his brief, Jackson states “[t]he elements of trespass include willfully and maliciously entering another’s property without permission or remaining on his or her property after being told to leave. Miss.Code Ann. § 97-17-87 (Rev. 2000).” However, a reading of the statute above reveals that the elements “without permission or remaining on his or her property after being told to leave” are not found in Section 97-17-87. The pertinent portion of proffered Jury Instruction D-3 reads:

The Court instructs the jury that Trespass is a lesser-included offense of burglary. The elements of trespass include willfully and maliciously entering another’s property without permission or remaining on his or her property after being told to leave.

¶ 36. With this being said on the proffered trespass instruction, which was denied by the trial judge, we now look at the evidence before the trial judge at the time he considered the issue of whether to grant or deny Jury Instruction D-3. Here, as discussed above in consideration of the first issue, the evidence is overwhelming that Jackson broke into the Lott home with the intent to commit larceny. The fact that the evidence is merely circumstantial is no bar to this finding. Franklin, 676 So.2d at 289. The inference ordinarily to be drawn from an unexplained breaking and entering into the home of another person unknown to the defendant, followed by rummaging through the victim’s effects and fleeing upon discovery, is that the defendant had the intent to commit larceny. Brown, 799 So.2d at 872. In contrast, the inference that Jackson was merely a trespasser without other criminal intent is not reasonable under these facts.

¶ 37. Jackson specifically argues that this case is similar to Alford v. State, 656 So.2d 1186, 1192 (Miss.1995). In that case Alford was indicted for house burglary with the intent to commit the crime of assault once inside the house. Alford had entered the home of an alleged acquaintance late at night. A thirteen-year-old girl whom he encountered therein was startled by Alford’s presence and screamed. Alford grabbed the girl’s arm in an effort to calm her down so that the girl’s grandmother would not be awakened by her screams. Alford, 656 So.2d at 1188-89. This Court found that merely pulling the arm was not sufficient to prove that the defendant had the necessary intent to commit the assault. Id. at 1190. The case was therefore remanded for re-sentencing on the lesser-included offense of trespass. Id. at 1192.

¶ 38. We find Alford to be inapposite to the instant case. Jackson, unlike Alford, is not alleged to have known his victims, the Lotts. Furthermore, in Alford, there was no proof indicating that Alford’s intent to commit the assault arose prior to the break-in. In contrast, it strains credulity to argue that Jackson broke into the relatively isolated house of the Lotts and only thereafter developed an intent to commit a larceny.

¶ 39. Jackson also relies on Warren v. State, 709 So.2d 415, 425 (Miss.1998), in which this Court held that a defendant indicted for voyeurism was entitled to a jury instruction on the lesser-included offense of trespass. In Warren, the indictment alleged that Warren peeped through a window of the house of the victim, James, with a lewd, licentious, and indecent purpose. Warren, 709 So.2d at 417. However, this Court found that James’s testimony revealed only that Warren had threatened her life and the lives of her children on the night in question, not that he had a lewd, licentious, or indecent purpose. Id. Jackson notes that in that case, Warren argued that he was not even on the defendant’s property at the time that this Court found him to be entitled to a trespass instruction as a lesser-included offense of voyeurism. Id. at 420.

¶ 40. However, we do not find Warren to be applicable. Burglary is a very different crime from voyeurism. Furthermore, in Warren, this Court found that “there was evidence to support the lesser included instruction on trespassing, and the instruction should have been given.” Id. This Court found discrepancies in the victim’s statement. Id. at 419. The jury could have “decided to believe everything that [victim] James stated except that portion of her testimony suggesting [defendant] Warren’s lewd purpose.” Id. at 420. In this case, as discussed above, no reasonable jury would have found that Jackson’s sole crime was trespass without the intent to commit larceny. Accordingly, Warren provides no support for Jackson’s argument under the facts of the instant case.

¶ 41. We find, taking the evidence in the light most favorable to Jackson, and considering all reasonable favorable inferences which may be drawn in favor of Jackson from the evidence, that no reasonable jury could find Jackson guilty only of the lesser-included offense of trespass, and conversely not guilty of at least one essential element of the principal charge of house burglary. See Harper, 478 So.2d at 1021. As a result, there was no basis in the evidence for an instruction on trespass as a lesser-included offense, and thus, the trial court did not commit error in refusing this trespass instruction.

CONCLUSION

¶42. Based on today’s discussion, we conclude that the jury’s verdict finding David Anthony Jackson guilty of the crime of burglary of a dwelling house with the intent to commit the crime of larceny once inside, is supported by legally sufficient evidence and that the verdict is not contrary to the weight of the evidence. Likewise, the evidence did not support a grant of the proffered lesser-included-crime instruction on trespass. Thus the judgment of conviction and sentence entered by the Circuit Court for the First Judicial District of Hinds County is affirmed.

¶ 43. CONVICTION OF HOUSE BURGLARY AND SENTENCE OF TWENTY-FIVE (25) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. UPON RELEASE, THE APPELLANT SHALL PAY ALL COSTS OF COURT, ASSESSMENTS, AND TAXES, EXCEPT AS RELIEVED BY LAW FOR INDIGENTS. SENTENCE SHALL NOT BE REDUCED OR SUSPENDED, NOR SHALL THE APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION. SENTENCE IN THIS CAUSE SHALL RUN CONSECUTIVELY TO ANY OTHER SENTENCES IMPOSED UPON THE APPELLANT BY ANY COURT.

WALLER, C.J., RANDOLPH, LAMAR, CHANDLER, PIERCE AND KING, JJ„ CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.

DICKINSON, Presiding Justice,

dissenting:

¶ 44. While I agree that the evidence could support a jury verdict, I also believe that a reasonable juror — viewing all the evidence in the light most favorable to Jackson, and assuming all reasonable inferences in his favor-could have found him guilty of trespass, and not burglary. And that entitled him to a lesser-included— offense instruction for trespass.

¶ 45. Even though there was evidence that Jackson “rummaged” in places where valuables were located, none was taken. Furthermore, the Lotts found nothing missing from their home, and when Jackson was located soon after the incident, he had nothing that belonged to the Lotts. These facts, standing alone, prove nothing conclusive. But the question is whether a juror — adopting the inferences most favorable to Jackson — could reasonably believe that the State failed to meet its burden of proof. And since trespass is a lesser-included offense of burglary, Jackson was entitled to such an instruction. I therefore respectfully dissent.

KITCHENS, J., JOINS THIS OPINION.

      . Most likely, Jackson's counsel had in mind Mississippi Code Section 97-17-85 (Rev. 2006).

      . See Warren v. State, 709 So.2d 415 (Miss.1998) (reversing a defendant’s conviction where the trial court denied the defendant an instruction on the lesser-included offense of trespass).


source: Caselaw Access Project

author: RANDOLPH, Justice,

license: Public Domain

text:
    Rene C. LEVARIO v. STATE of Mississippi.
    No. 2010-IA-02028-SCT.
    Supreme Court of Mississippi.
    June 21, 2012.

      Calvin D. Taylor, attorney for appellant.
    Office of the Attorney General by Tanya L. Hasbrouck, attorney for appellee.
    Before DICKINSON, P.J., RANDOLPH and PIERCE, JJ.
   RANDOLPH, Justice,

for the Court:

¶ 1. This appeal is from an order of the Jackson County Circuit Court overruling Rene. C. Levario’s motion to dismiss an indictment charging him with felony Driving Under the Influence (DUI) Causing Death. We affirm the circuit court.

¶ 2. On July 26, 2008, Levario was involved in an automobile accident that resulted in the death of Gary Coulliette. At the scene, Levario received five traffic tickets, one of them for driving under the influence (DUI). The DUI ticket was never signed by the clerk of court. On July 28, 2008, the officer who issued the tickets submitted a handwritten affidavit charging Levario with felony DUI Causing Death for the July 26 incident.

¶ 3. On July 28, 2008, Levario posted $25,000 bond for felony DUI Causing Death. On August 18, 2008, he pleaded not guilty to felony DUI Causing Death in the Jackson County Justice Court, and his case was continued to October 23, 2008. On October 23, 2008, Levario again appeared in the Jackson County Justice Court and was convicted of felony DUI Causing Death. He was ordered to pay a $300 fíne and to attend Mississippi Alcohol Safety Education Program (“MASEP”) classes.

¶ 4. On May 1, 2009, the State filed a “Motion to Set Aside Criminal Judgment” in justice court, arguing that the justice court had no jurisdiction to accept Levar-io’s guilty plea on a charge of felony DUI Causing Death. After conducting a hearing on the issue, the justice court issued an order setting aside the conviction, finding that Levario had pleaded guilty to felony DUI Causing Death and that the felony charge had not been reduced to a misdemeanor.

¶ 5. On October 13, 2009, the Jackson County Grand Jury returned an indictment charging Levario with felony DUI Causing Death for the July 26, 2008, incident. On April 29, 2010, Levario filed a Motion to Dismiss in Jackson County Circuit Court, claiming double jeopardy. The circuit court overruled the motion, and Le-vario appealed that decision.

ISSUES

¶ 6. This Court will address the following issues:

1. Whether double jeopardy prohibited the State from indicting and prosecuting Levario for felony DUI Causing Death in circuit court, because of an earlier DUI conviction in justice court that had been set aside.
2. Whether the State violated Levario’s due-process rights in seeking to set aside his conviction in justice court and in prosecuting him in circuit court for felony DUI Causing Death.

ANALYSIS

I. Standard of Review

¶ 7. “We apply a de novo review to claims of double jeopardy and to questions of law.” Foreman v. State, 51 So.3d 957, 960 (Miss.2011).

II. Double jeopardy did not prohibit the State from indicting and prosecuting Levario for felony DUI Causing Death in circuit court, because the justice court did not have jurisdiction to convict him of the felony.

¶ 8. Levario was not placed in double jeopardy when he was convicted of felony DUI Causing Death by the justice court, which lacked jurisdiction for the felony conviction, and subsequently was indicted for the same offense by a circuit court, which did have felony jurisdiction. Both “the double-jeopardy clause of the Fifth Amendment to the United States Constitution and Article 3, Section 22 of the Mississippi Constitution of 1890 ... guarantee!] to each citizen that he shall not twice be placed in jeopardy for the same offense!,]” and this Court “constructs] the double jeopardy clause of our Constitution consistent with authoritative constructions of the Constitution of the United States.” Foreman, 51 So.3d at 960 (citations omitted). The double-jeopardy clause of the Mississippi Constitution provides that:

No person’s life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.

Miss. Const, art. 3, § 22 (emphasis added). “It has long been settled in this state that a party who has been tried and convicted by a court not having jurisdiction of the offense cannot plead former jeopardy if subsequently indicted for the same offense in a court having jurisdiction thereof.” John v. State, 347 So.2d 959, 963 (Miss.1977) (citing Montross v. State, 61 Miss. 429 (1883)), rev’d on other grounds, 437 U.S. 634, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978). More recently, Justice James W. Kitchens sagely observed that “former jeopardy is not implicated when the court which first tried the accused lacked jurisdiction finally to adjudicate all of the pending charges, for ‘a court without jurisdiction to try the person for the crime charged cannot place the accused in jeopardy.’ ” Watts v. State, 78 So.3d 901, 903 (Miss.2012) (citation omitted). The Watts Court further found that, “[b]ecause the justice court lacked jurisdiction to try the pending felony charge, [the defendant] could not be acquitted or convicted in justice court and later succeed in asserting former jeopardy as a bar to the already-pending felony charge in circuit court.” Id. (citations omitted). Thus, if the justice court lacked jurisdiction for its conviction of Levario, he could not assert double jeopardy to avoid subsequent indictment and prosecution in circuit court.

¶ 9. The justice court did not have jurisdiction for its conviction of Levario, because the sole DUI charge in justice court was felony DUI Causing Death. Justice courts have jurisdiction over misdemeanors, not felonies. Miss.Code Ann. § 99-33-1(2) (Rev. 2007). Levario was never charged with misdemeanor DUI First Offense. Although he was issued a ticket for a misdemeanor DUI offense, the clerk never signed the affidavit on the ticket. Instead, the officer who issued the ticket executed a separate affidavit charging Le-vario with felony DUI Causing Death. Further, the justice court could not have reduced the felony charge and convicted Levario of a misdemeanor,, as only circuit courts have jurisdiction to reduce a felony charge to a misdemeanor. See Miss.Code Ann. § 99-33-1(3) (providing that “[a] circuit court grand jury, after an evidentia-ry determination, may remand any case that may be tried as a felony or misdemeanor, and which it deems should be tried as a misdemeanor, to justice ... court to be tried as a misdemeanor.”) (emphasis added). Thus, the sole charge was felony DUI Causing Death, and the justice court had no jurisdiction either to convict Levario of the felony or to reduce the charge and convict him of a misdemeanor. Because the justice court had no jurisdiction for its conviction of Levario, that conviction did not preclude the State from indicting and prosecuting Levario in circuit court for felony DUI Causing Death.

III. The State did not violate Levar-io’s due-process rights in seeking to set aside his conviction in justice court and in prosecuting him in circuit court.

¶ 10. Levario makes four due-process arguments: (1) the State did not have a right to appeal the justice court’s judgment; (2) the State’s filing of its motion to set aside the conviction was untimely, in violation of unnamed “filing deadlines which would certainly have passed ... ”; (3) the “Order Setting Aside Criminal Judgment” that the State submitted to the justice court was an improper ex parte communication; and (4) the State engaged in prosecutorial vindictiveness. None of his arguments has merit.

¶ 11. We need not address whether the State had a right to appeal the justice court’s judgment, for the State did not appeal that judgment; rather, the State filed a motion in justice court to set aside the conviction. The proceedings to set aside the conviction in justice court (which Levario mischaracterizes as an appeal) were procedurally proper. Mississippi Code Section 9-11-33 provides, in relevant part, that:

[a] justice court judge may set aside any proceeding or judgment in a case conducted before such judge upon a written order as may be just and proper after a proceeding in which the judge determines that good cause has been shown to support such order.

Miss.Code Ann. § 9-11-33 (Rev. 2002). The justice court complied with this statute when it set aside Levario’s conviction in a written order after holding a hearing on the State’s motion to set aside the conviction.

¶ 12. We next address Levario’s argument that the State’s filing of its motion to set aside the conviction was untimely and violated unnamed “filing deadlines which would certainly have passed.... ” This argument fails, because Mississippi Code Section 9-11-33 does not impose filing deadlines or timing requirements.

¶ 13. Levario’s argument that the “Order Setting Aside Criminal Judgment” was an improper ex parte communication likewise fails. The State’s order did not constitute impermissible ex parte contact, because it did not communicate any position on the merits, and no party stood to gain a procedural or tactical advantage because of it. See Miss.Code of Judicial Conduct, Canon 3(B)(7) (“A judge shall not initiate, permit, or consider ex parte communications ... except that ... ex parte communications for ... administrative purposes ... that do not deal with substantive matters or issues on the merits are authorized[,] provided ... the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication .... ”).

¶ 14. Finally, Levario seeks to apply the doctrine of prosecutorial vindictiveness to protect his “fundamental right to plead guiltyt,]” arguing that the State acted vindictively and sought “to punish him ... for exercising his right to accept his punishment.” We find the doctrine inapplicable, because Levario had no right to plead guilty to the charged felony in justice court, as discussed above. See supra, Section II. Thus, we conclude that Levario has not proven any violation of his due-process rights.

CONCLUSION

¶ 15. Accordingly, we affirm the order of the Jackson County Circuit Court overruling Levario’s motion to dismiss and remand the case to the Jackson County Circuit Court for further proceedings consistent with this opinion.

¶ 16. AFFIRMED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . The other four tickets were for no proof of liability insurance, following too closely, expired driver’s license, and expired motor vehicle inspection sticker.

      . As the pending charge was felony DUI Causing Death, that is the only offense of which Levario could have been convicted. However, Levario argues that “no action was taken on the affidavit charging the felony DUI causing death[,]” and that the sentence of a fine and MASEP classes "could only have resulted from a resolution of the DUI misdemeanor. ...” Additional evidence in the record provides that Levario paid $601.50 (the $300 fine plus various court fees) on account of a "DUI 1st Offense.” In subsequent testimony before the justice court, the local attorney who represented the State at the October 23, 2008, proceeding stated that the felony charge had been reduced to a misdemeanor during the October 23, 2008, proceeding and that Levario had pleaded guilty to the misdemeanor. Whether the justice court convicted Levario of the felony or reduced the felony charge and convicted Levario of a misdemeanor is of no legal import, for the justice court did not have jurisdiction either to convict him of a felony or to reduce a felony charge, as discussed below. See infra, Analysis section II.

      . No statutory provision gives justice courts the authority or jurisdiction to reduce a felony charge to a misdemeanor.

      . The order read, in relevant part, as follows: "Levario pled guilty before this Court to the charge of Felony Driving Under the Influence Causing Death / Misdemeanor Driving Under the Influence and that said charge was / was not reduced to a misdemeanor prior to said plea ... [,]” and showed that the judge circled "Felony Driving Under the Influence Causing Death " and "was not [.]”

      . See Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), for a discussion of the doctrine of prosecutorial vindictiveness.


author: CHANDLER, Justice,

text:
    Carla HUGHES a/k/a Carla A. Hughes v. STATE of Mississippi.
    No. 2010-KA-01609-SCT.
    Supreme Court of Mississippi.
    June 21, 2012.

      Brandon I. Dorsey, Johnnie E. Walls, Jr., Clarksdale, attorneys for appellant.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. A Madison County jury convicted Carla Hughes of two counts of capital murder. The jury declined to impose the death penalty, and the Circuit Court of Madison County imposed two sentences of life imprisonment without the possibility of parole, with both sentences to run concurrently. Hughes raises six issues on appeal:

I. Whether the jury committed misconduct by submitting a note to the judge during deliberations asking whether the State could have called Hughes to the stand.
II. Whether the verdicts are against the overwhelming weight of the evidence.
III. Whether the trial court erred during jury selection when it denied one of Hughes’s peremptory challenges.
IV. Whether the trial court erred by denying the motion to suppress the evidence found in Hughes’s house.
V. Whether the trial court erred in overruling Hughes’s motion for a directed verdict.
VI. Whether the trial court erred by admitting DNA evidence from a pair of TredSafe shoes.

¶ 2. Finding no error, we affirm the judgment of the Circuit Court of Madison County.

FACTS

¶ 3. Hughes was convicted of two counts of capital murder for the murder of Avis Banks and her unborn son. Hughes had been having an affair with Keyon Pittman, Banks’s fiancé. Pittman and Banks lived together in Ridgeland, Mississippi.

¶ 4. Pittman met Hughes in August 2006 at Chastain Middle School, where they both were teachers. They became friends and began a sexual relationship. Pittman testified that Banks had been unaware of his relationship with Hughes. According to Pittman, Hughes had remained in the relationship despite her knowledge that Pittman planned to marry Banks and that Banks was pregnant with his child. Pittman said Hughes had referred to him as her “future husband” when they were around Hughes’s friends and relatives. Pittman also testified that Hughes had been unhappy that Pittman would not leave Banks. Pittman testified that he repeatedly had told Hughes that he was not going to leave Banks to be with her, even when Hughes believed that she was pregnant. He said that on one occasion, Hughes had started to drive to Pittman’s and Banks’s house to reveal her affair with Pittman, but Pittman had stopped her by threatening to call the police. Hughes had known where Pittman and Banks lived because she had been there on three prior occasions.

¶ 5. The Saturday after Thanksgiving 2006, Pittman and Banks were in Picayune, Mississippi, visiting Banks’s family. That day, Hughes and Pittman met at a hotel in Picayune. Because Pittman would not stay out late to be with Hughes, the evening ended on a bad note. On Sunday, Hughes told Pittman that “from this point on some things are going to change.” Pittman testified that, for the next few days, their relationship was more distant.

¶ 6. Four days later, on the afternoon of November 29, 2006, Pittman dropped off groceries at Hughes’s house to keep cool in her refrigerator while he coached basketball practice at Chastain Middle School. Pittman left Hughes’s house around 5:10 p.m. or 5:15 p.m.; practice began around 5:30 p.m. that evening and lasted until 7:30 p.m. or 7:45 p.m. Pittman spoke to Banks at 5:12 p.m. and at 5:36 p.m. that evening, when Banks was driving home from work. After practice, Pittman returned to Hughes’s house to pick up his groceries and noticed that Hughes was unusually quiet.

¶ 7. Pittman stayed at Hughes’s house for twenty to thirty minutes, leaving at about 8:30 p.m. While Pittman drove home, he called Banks, but she did not answer, and Pittman became concerned. When Pittman arrived home, he pulled into his normal parking spot and used the garage-door opener to enter the house through the garage. He saw Banks lying in a pool of blood on the garage floor next to her car. He ran into the garage and tried to rouse Banks, but she did not respond. Pittman quickly checked the house to see if anyone was there and then ran next door, where a neighbor called 911. When the police arrived at 8:46 p.m., Pittman was in the garage holding Banks’s body. The police ordered Pittman away from Banks and conducted a search of the residence. The paramedics arrived to treat Banks, but she was dead.

¶8. The police investigation concluded that Banks had arrived home between 5:50 p.m. and 6:00 p.m, and that she had been killed shortly thereafter. The autopsy performed on Banks revealed that she was shot four times, stabbed three times, and slashed once. Three of the four gunshot wounds were fatal. The stab wounds were not fatal, and may have occurred postmortem. All the bullets were from a .38 caliber weapon. The autopsy also confirmed that Banks had been in her second trimester of pregnancy, carrying a male fetus. Because the baby had died from maternal demise, his death was classified as a homicide.

¶ 9. The police collected several pieces of evidence during their investigation. The initial search of Pittman’s house revealed that the back door had been forced open. There were two shoe prints on the exterior side of the glass door where it appeared that the perpetrator had kicked the door. There were blood smears along the wall and light-switch plate. The door between the house and the garage was open, and there was a dent in the sheetrock where the doorknob had struck the wall. There was a bullet hole in the lower left corner of the garage door, but no shell casings were found. While it appeared that there had been a burglary, nothing was missing from the house. The police took a smear of the blood found on the light-switch plate, and took photographs of the shoe prints on the exterior glass door. They also lifted an impression of the shoe print from the glass door.

¶ 10. Pittman gave a statement at the police station. His clothes were photographed because they had blood on them. His hands were processed for gunshot residue, and each hand had a single particle on it. An expert witness testified that those particles could have come from touching Banks’s body. Pittman remained a suspect in the homicide until the investigation established that he had been at Chastain Middle School at the time of the murder. Pittman’s cell-phone records indicated that he had not been in the vicinity of his house during the time the murder occurred. Witnesses who had been at Chastain Middle School during basketball practice verified that Pittman had been at the school when the murder had occurred.

¶ 11. Employees at Chastain Middle School told police that Pittman had several girlfriends, including Hughes. Police initially talked to Hughes at Chastain Middle School on December 1, 2006. In this initial statement, Hughes said that she and Pittman were just friends. But Hughes gave another statement at the police station that evening in which she admitted that she had a sexual relationship with Pittman. Hughes also said that she did not own or have access to a gun. However, it was established Hughes had a gun on the day that the homicide occurred. Hughes’s cousin, Patrick Nash, testified that, on November 26, 2006, Hughes had asked him to borrow a weapon for protection because of attempted break-ins at her house. He said he had loaned Hughes a Rossi .38 caliber gun with five bullets inside it, and a three-and-a-half-to-four-inch-long folding hunting knife. Nash said that he showed Hughes how to use the gun. He gave Hughes no additional bullets.

¶ 12. After her interview with police, on the evening of December 1, 2006, Hughes returned the Rossi .38 caliber gun, and Nash noticed that no bullets were in it. Hughes did not return the knife. Nash became uneasy because Hughes had called him on the night of the murder and mentioned that someone had killed Pittman’s girlfriend. Later, Hughes’s uncle, James Nash, asked Hughes if the gun had been involved in Banks’s murder. James testified that, in response, Hughes “kind of dropped her head and shrugged her shoulders, and I took that to be ‘I really don’t know1 or affirmative.”

¶ 13. Nash turned the Rossi .38 caliber gun over to the police on December 5, 2006. Hughes was arrested on December 6, 2006, on a charge of accessory after the fact. After Hughes’s arrest, Detective John Neal obtained a search warrant to search her house, which was executed on December 8, 2006. The police specifically were looking for six things:

1) Any firearm, ammunition, shell casing, bullet projectile or packaging for any firearm, ammunition, shell casing or bullet projectile.
2) Any tool or instrument with a folding blade which may be used to puncture, stab, slice or cut.
3) Any article of clothing which may contain evidence of blood or blood stains.
4) Any type of footwear which may contain the impression design as indicated in Exhibit “A.”
5) Any glove which may contain physical evidence of blood or blood stains.
6) Any notes, papers, documents or any form of written communication which may establish a relationship between Carla Hughes and Keyon Pittman.

A picture of the shoe-print impression taken from the crime scene was attached to the search warrant as Exhibit A. The police seized three items during the search: a pair of women’s size ten TredSafe shoes, a photograph of Pittman that was in the master bedroom night stand, and a handwritten note/poem with the initials K.P. on it. The shoes had a tread pattern that appeared to match the shoe prints from the crime scene.

¶ 14. The shoes and the Rossi .38 caliber gun were sent to the Mississippi Crime Laboratory for testing. Testing showed that the tread pattern on the soles of the shoes matched the impressions lifted from the crime scene. Test projectiles from the Rossi .38 caliber gun were compared to the projectiles that were removed from Banks’s body and revealed that the gun had fired the bullets that had killed Banks.

¶ 15. Cell-phone records from Hughes’s cell phone were admitted into evidence. Mark Winstead, a radio-frequency engineer with Cellular South, testified about the cell-phone records. The records identified the cell towers from which Hughes’s calls had originated and terminated. Win-stead testified that each cell tower has a certain geographical range. He testified that a cell tower that became overloaded with calls would not transmit a call to a different tower, but would block the call. He prepared a map that was admitted into evidence showing the geographical range of cell towers in the relevant area. The Pittman/Banks home was within the geographical range of a certain cell tower located on Lake Harbor Drive in Ridge-land. That cell tower had a two-mile radius. The records showed that, at 5:37 p.m., Hughes had answered a call within the range of that cell tower. She had terminated the call within the range of that cell tower. The records further showed that, at 6:04 p.m, Hughes had placed a call within the range of that cell tower, and had terminated the call within the range of that cell tower. Hughes’s next cell-phone activity, at 6:07 p.m., was outside the range of that cell tower. The prosecution argued that this evidence placed Hughes near the Banks/Pittman home at the time of the murders.

¶ 16. Thomas Gandy, a radio-frequency engineer for AT & T Mobility, testified about the cell-phone records of Pittman and Banks. The records showed Banks’s last call at 5:36 p.m. was in an area consistent her with traveling toward her home. Pittman’s calls from between 5:12 p.m. and 7:18 p.m. were all associated with the cell-tower coverage including Hughes’s house and Chastain Middle School, but not including his home. His calls from between 8:41 p.m. and 8:56 p.m. all were associated with the cell tower that covered his home.

¶ 17. Detective Neal testified that investigators determined from Hughes’s cellphone records that she had been within the vicinity of a cell tower near Pittman’s and Banks’s home between just after 5:30 p.m. and just after 6:00 p.m. In contrast, Pittman’s cell records showed that he had made calls in the vicinity of a cell tower near Chastain Middle School during that time frame. Because police had determined that Banks’s murder had occurred shortly after her arrival home, between 5:50 p.m. and 6:00 p.m., these cell-phone records implicated Hughes.

¶ 18. On December 8, 2006, the police upgraded the charges against Hughes to two counts of capital murder. Hughes was indicted on July 30, 2008, for two counts of capital murder under Mississippi Code Section 97-3-19(2)(e), for killing Avis Banks and her unborn child while committing a burglary with the intent to commit assault. Hughes’s trial began in October 2009.

¶ 19. Hughes did not testify. In defense, she attempted to implicate Pittman. Hughes showed that, at one time, Pittman had a key to her house. He had admitted that he had borrowed Hughes’s shoes occasionally. One defense witness testified that Pittman had not been inside the gym during the entirety of basketball practice as Pittman had stated; however, that witness was impeached with his earlier statement to the police that Pittman had been present during the entire practice. A friend of Hughes who lived inside the range of the cell-phone tower near the Pittman/Banks home testified that, to her knowledge, Hughes had not visited her house that night. No other evidence explained Hughes’s presence inside the range of the cell tower near the Pittman/Banks home at the time of the murders.

¶ 20. The jury found Hughes guilty of two counts of capital murder. The trial court imposed two sentences of life in the custody of the Mississippi Department of Corrections without the possibility of parole.

ANALYSIS

I. WHETHER THE JURY COMMITTED MISCONDUCT BY SUBMITTING A NOTE TO THE JUDGE DURING DELIBERATIONS ASKING WHETHER THE STATE COULD HAVE CALLED HUGHES TO THE STAND.

¶ 21. The trial judge instructed the jury that it was not to consider Hughes’s failure to testify as evidence of either guilt or innocence. During deliberations, the jury submitted a note to the trial court stating “Mould the State have called Carla Hughes to the stand?” Hughes’s attorney proposed that the court instruct the jury that the State had no power to call her to the stand. But, upon the agreement of the defense and the prosecution, the trial court instructed the jury to see Jury Instruction Number Four, which stated that:

The Court instructs the jury that the fact that Carla Hughes, did not take the witness stand and testify cannot be considered by you for any purpose, and no inference whatsoever can be drawn against Carla Hughes, because of her decision not to take the stand and testify. The law gives every person charged with a crime the absolute and unqualified privilege of not testifying, if they so choose, and the law further requires that no inference adverse to that person can be drawn by you, the jury, because of her decision not to testify.

¶ 22. Hughes filed a motion for a judgment notwithstanding the verdict, or alternatively, a new trial. Hughes argued that the jury’s note showed that the jury erroneously had considered Hughes’s failure to testify. The trial court denied Hughes’s motion for a new trial on this ground because the trial court had instructed the jury in accordance with the parties’ agreed-upon response.

¶23. On appeal, Hughes argues that the note showed that the jury disregarded the court’s instructions not to consider Hughes’s failure to testify, constituting jury misconduct. She argues the note shows that the jury drew an adverse inference of guilt from Hughes’s exercise of her right to remain silent guaranteed by the Fifth Amendment to the United States Constitution. See U.S. Const., amend. V. Hughes argues that the jury misconduct gives rise to a presumption of prejudice, entitling her to a new trial. The State argues that the note did not show jury misconduct, because jurors are presumed to follow court instructions in the absence of evidence to the contrary. The State further argues that the note’s purpose may have been to assist the jury in determining whether the State had failed to support its case by not calling Hughes as a witness. The State also argues that there is no proof the jury actually considered Hughes’s failure to testify in determining guilt.

¶24. This issue is procedurally barred. As the State argues, when a party fails to make a contemporaneous objection, the appellate court is under no obligation to review the assignment of error. Caston v. State, 823 So.2d 473, 503 (Miss.2002). In this case, when the jury’s note was submitted to the court, Hughes did not object or move for a mistrial on the basis of jury misconduct. Instead, the defense and prosecution agreed that the court should instruct the jury to see Jury Instruction Number Four.

¶ 25. Hughes argues that she preserved the issue of jury misconduct for appeal by raising it in her motion for a judgment notwithstanding the verdict or a new trial. This Court has held that “if an appellant raises for review an issue not raised in the pleadings, transcript, or rulings, the appellant must have preserved the issue by raising it in a motion for new trial.” Page v. State, 64 So.3d 482, 489 (Miss.2011) (quoting Collins v. State, 594 So.2d 29, 36 (Miss.1992)). This gives the trial judge an opportunity to consider the alleged error before appeal. Id. Thus, a party must preserve the issue that the verdict was against the overwhelming weight of the evidence with a motion for a new trial. Carey v. State, 80 So.3d 131, 136 (Miss.Ct.App.2012). However, a party need not reassert an issue in a motion for a new trial when the facts surrounding the alleged error in the trial court’s ruling are fully apparent from the record. Harden v. State, 59 So.3d 594, 601 (Miss.2011). But “[rjaising objections in a motion for new trial which should have been made at trial has never been thought to cure the failure to object at the proper time.” Smith v. State, 797 So.2d 854, 856 (Miss.2001).

¶ 26. While a party may, in a motion for a new trial, preserve an issue for appeal that was not raised in the pleadings, transcript, or rulings, a motion for a new trial is not an opportunity to revive an issue which the party waived by failing to make a contemporaneous objection. Id. Here, the defense did not object or request a mistrial when the court received the jury’s note questioning the State’s ability to have called Hughes. Instead, the defense agreed to the trial court’s response to the jury’s note. Hughes raised the issue for the first time in her motion for a new trial. Accordingly, the trial court denied relief. This issue is procedurally barred due to the lack of a contemporaneous objection. Caston, 823 So.2d at 503. Notwithstanding the procedural bar, there was no error, because the jury is presumed to follow the instructions of the trial court. Grayson v. State, 879 So.2d 1008, 1020 (Miss.2004) (quoting Williams v. State, 684 So.2d 1179 (Miss.1996)). Jury Instruction Number Four was a correct statement of the law. Because the trial court properly referred the jury to Jury Instruction Number Four, and we presume that the jurors followed that instruction, the issue is without merit.

II. WHETHER THE VERDICTS WERE AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 27. Hughes argues that the verdicts were against the overwhelming weight of the evidence. Hughes argues that there was no direct evidence that she committed the murders. She complains that no eyewitness saw her shoot Banks, and there was no evidence that she and Banks knew each other, no evidence that she fired the murder weapon or wore the TredSafe shoes, and no evidence that she was in or around the Pittman/Banks home during the time of the murder. The State argues that the great weight of the circumstantial evidence supported the guilty verdicts.

¶ 28. Hughes challenged the weight of the evidence in her motion for a new trial. The trial court denied the motion. When reviewing a challenge to the weight of the evidence, this Court will not overturn a verdict unless it “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Osborne v. State, 54 So.3d 841, 846 (Miss.2011) (quoting Bush v. State, 895 So.2d 836, 844 (Miss.2005)). “A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, ‘unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.’ ” Bush, 895 So.2d at 844. “Rather, as the ‘thirteenth juror,’ the court simply disagrees with the jury’s resolution of the conflicting testimony.” Id. Reversal will occur only in exceptional cases where the evidence preponderates heavily against the verdict. Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000)).

¶ 29. We find that the verdict was not against the overwhelming weight of the evidence. The State established that Hughes had a motive for killing Banks. Hughes was upset that Pittman would not leave Banks to be with her, and once before had attempted to confront Banks. Hughes referred to Pittman as her future husband when they were around her family. Four days before the murders, Hughes and Pittman had an argument, and Hughes had said that “from this point on some things are going to change.”

¶ 30. Pittman testified that Hughes knew where Banks lived because she had been to the Pittman/Banks home on three prior occasions. Pittman also testified that Hughes knew what Banks looked like because she had seen Banks once at the airport and once at the school. Cell-phone records placed Hughes in the vicinity of the Pittman/Banks home at the time of the murder. Pittman’s cell-phone records tended to confirm his presence at Chastain Middle School during the relevant time.

¶ 31. Nash verified that he had loaned Hughes a knife and a .38 caliber Rossi handgun loaded with five bullets on November 26, 2006, three days before the murder, and Hughes had returned the empty gun on December 1, 2006, after her police interview. Five bullets were found at the crime scene — four in Banks’s body, and one in the garage door. Ballistics testing confirmed that the gun Hughes had borrowed from Nash was the murder weapon.

¶ 32. Shoes with a sole matching the tread impression found on the glass door of the Banks/Pittman home were found in Hughes’s house. While Pittman admitted that he had worn Hughes’s shoes, the police verified that he had been wearing a pair of lace-up Cole Haan-brand shoes on the night of the murders. His closet was checked that night for shoes matching the footwear impression, and none were found. And DNA testing showed that Banks’s blood was on the shoes taken from Hughes’s closet.

¶ 33. The evidence did not preponderate so heavily against the verdicts that an unconscionable injustice would result from allowing the verdicts to stand. The verdicts were not against the overwhelming weight of the evidence.

III. WHETHER THE COURT ERRED BY DENYING ONE OF HUGHES’S PEREMPTORY CHALLENGES.

¶ 34. Hughes exercised one of her peremptory challenges on juror number thirty-two because that juror had expressed concerns about being away from work during jury service. The State made a Bat-son challenge, because Hughes had exercised five peremptory strikes on white men. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court denied Hughes’s peremptory challenge, finding it was a pretext for discrimination, because Hughes had not exercised strikes on other jurors with similar concerns. On appeal, Hughes argues that the trial court’s finding of pretext was clearly erroneous, entitling her to a new trial.

¶ 35. A defendant has a right to be tried by a jury selected on the basis of nondiscriminatory criteria. Ryals v. State, 794 So.2d 161, 165 (Miss.2001). Batson established that the Equal Protection Clause of the United States Constitution prohibits racial discrimination through the use of peremptory challenges. Batson, 476 U.S. at 79, 106 S.Ct. at 1719. Under J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 114 S.Ct. 1419, 1421, 128 L.Ed.2d 89 (1994), a party likewise may not base a peremptory challenge on gender. Batson, J.E.B., and their progeny established that the trial court must follow a three-step inquiry to determine whether there is a discriminatory reason for a peremptory challenge. Pitchford v. State, 45 So.3d 216, 224 (Miss.2010).

First, the party objecting to the peremptory strike of a potential juror must make a prima facie showing that race was the criterion for the strike. Second, upon such a showing, the burden shifts to the [other party] to articulate a race-neutral reason for excluding that particular juror. Finally, after a race-neutral explanation has been offered ... the trial court must determine whether the objecting party has met its burden to prove that there has been purposeful discrimination in the exercise of the peremptory strike, i.e., that the reason given was a pretext for discrimination.

Id. (citing Flowers v. State, 947 So.2d 910, 917 (Miss.2007)). A prima facie case can be shown “by demonstrating that the percentage of ... peremptory strikes exercised on members of the protected class was significantly higher than the percentage of members of the protected class in the venire.” Id. at 225 (citing Strickland v. State, 980 So.2d 908, 916 n. 1 (Miss.2008)).

¶ 36. In the second step of the inquiry, “the issue is the facial validity of the [party’s] explanation. Unless a discriminatory intent is inherent in the ... explanation, the reason offered will be deemed race neutral.” Lynch v. State, 877 So.2d 1254, 1271 (Miss.2004) (quoting Randall v. State, 716 So.2d 584, 588 (Miss.1998)). “[R]ace neutral explanations must be viewed in the light most favorable to the trial court’s findings.” Id. at 1270 (quoting Walker v. State, 815 So.2d 1209, 1215 (Miss.2002)). A juror’s reluctance to serve or preoccupation with matters outside the courtroom are valid race-neutral reasons for exercising a peremptory challenge. Id. at 1274 (citing Manning v. State, 735 So.2d 323, 340 (Miss.1999)). Also, a juror’s concern that jury service will interfere with his or her employment is a race-neutral reason for exercising a peremptory strike. Id. at 1275.

¶ 37. In the third step, the opposing party may attempt to refute the other party’s race/gender-neutral reason by showing that the reason was a pretext for discrimination. The Court has identified five “indicia of pretext” that may belie a race/gender-neutral reason for a strike:

(1) disparate treatment, that is, the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge;
(2) the failure to voir dire as to the characteristic cited; ... (3) the characteristic cited is unrelated to the facts of the case; (4) lack of record support for the stated reason; and (5) group-based traits.

Id. at 1272 (quoting Manning v. State, 765 So.2d 516, 519 (Miss.2000)). In attempting to refute a race/gender-neutral reason, the opposing party may “point[ ] out that similar claims can be made about non-excluded jurors.’ ” McFarland v. State, 707 So.2d 166, 172 (Miss.1997) (citing U.S. v. Bentley-Smith, 2 F.3d 1368, 1373-74 (5th Cir.1993)). While disparate treatment is strong evidence of discriminatory intent, it is not necessarily dispositive of discriminatory treatment. Lynch, 877 So.2d at 1274 (citing Berry v. State, 802 So.2d 1033, 1039 (Miss.2001)); see also Chamberlin v. State, 55 So.3d 1046, 1050-51 (Miss.2011). “Where multiple reasons lead to a peremptory strike, the fact that other jurors may have some of the individual characteristics of the challenged juror does not demonstrate that the reasons assigned are pre-textual.” Lynch, 877 So.2d at 1274 (quoting Berry, 802 So.2d at 1040).

¶ 38. This Court affords great deference to a trial-court ruling on a Batson challenge. Pitchford, 45 So.3d at 226 (quoting Lynch, 877 So.2d at 1270). “This is true because ‘the demeanor of the attorney making the challenge is often the best evidence on the issue of race neutrality.’ ” Lynch, 877 So.2d at 1271. We will not overturn the trial court’s ruling unless it was clearly erroneous or against the overwhelming weight of the evidence. Pitchford, 45 So.3d at 226 (quoting Lynch, 877 So.2d at 1270).

¶ 39. We find that the trial court did not err by denying Hughes’s peremptory challenge of juror number thirty-two. Hughes exercised five peremptory strikes against white males. The State raised a Batson challenge, arguing that Hughes’s strikes were made on the basis of race and gender discrimination. The trial court required Hughes to state race and gender-neutral reasons for the strikes. Counsel for Hughes said that, after the trial court had allowed the State’s peremptory challenges, few African-Americans were left. The trial court allowed three of Hughes’s strikes, finding that there were race/gender-neutral reasons for striking those jurors, but found that Hughes’s reasons for striking jurors number twenty-two and thirty-two were pretextual. The trial court found that Hughes’s reason for the strike of juror number twenty-two was a pretext for discrimination, because, although Hughes’s articulated race/gender-neutral reason was that the juror was unresponsive during voir dire, the juror had responded to some questions.

¶ 40. Hughes’s articulated race/gender-neutral reason for striking juror number thirty-two was that the juror had expressed concern about being away from his job and unable to send job-related emails while sequestered. Under Lynch, juror number thirty-two’s concern for his employment was a race/gender-neutral reason for the strike. Lynch, 877 So.2d at 1275. But the State successfully showed that the reason was pretextual because Hughes had not exercised peremptory challenges on female jurors with similar concerns about the effect of sequestration on their responsibilities. For example, juror number four said she did not want to be sequestered because she was scheduled to speak at a conference and she was the only person who could give the presentation. Juror number nine stated that she would be heartbroken if jury service caused her to miss a reunion and a fundraiser. Juror number thirteen stated that sequestration would be a problem because she was supposed to take care of her grandchildren. Juror number twenty-three was concerned about missing her night classes. Of these four jurors, three were white females, and juror number thirteen was an African-American female.

¶ 41. Because Hughes had not exercised peremptory challenges on other jurors with similar concerns, the trial court found that Hughes’s articulated race/gender-neutral reason was a pretext for discrimination. While multiple reasons for the strike could have overcome Hughes’s disparate treatment of jurors number four, nine, thirteen, twenty-three, and thirty-two, Hughes struck juror number thirty-two for the single reason that he was concerned about the effect of sequestration on his job. See Lynch, 877 So.2d at 1274. Hughes did not challenge female jurors with similar concerns about the effect of sequestration on their responsibilities. The trial court also found that Hughes’s reason was pretextual because juror number thirty-two had said that being sequestered would not be a problem for him because he would be able to forward his work emails to another employee. Therefore, the trial court also found a lack of record support for Hughes’s contention that she struck juror number thirty-two because of his concern about his work responsibilities. Affording deference to the trial court’s determination, we hold that the trial court’s finding of pretext concerning Hughes’s strike of juror number thirty-two was not clearly erroneous or against the overwhelming weight of the evidence.

IV. WHETHER THE COURT ERRED IN DENYING THE MOTION TO SUPPRESS EVIDENCE FOUND IN THE SEARCH OF HUGHES’S HOME.

¶ 42. Hughes moved to suppi’ess the evidence obtained in the search of her house on the ground that the séarch warrant was issued without probable cause. After a hearing, the trial court overruled the motion. Hughes argues that the search violated her constitutional right of protection from illegal search and seizure because there was no probable cause to issue the search warrant.

¶ 43. The Fourth Amendment to the United States Constitution and Article 3, Section 23 of the Mississippi Constitution protect an individual’s right of freedom from unreasonable searches and seizures. U.S. Const, amend. IV; Miss. Const, art. 3, § 23. When requesting a search warrant, the State must rely on facts that are sufficient to “warrant a [person] of reasonable caution in the belief that the action taken was appropriate.” Davis v. State, 660 So.2d 1228, 1238 (Miss.1995) (quoting Carney v. State, 525 So.2d 776, 783 (Miss.1988)). “[P]robable cause exists when the facts and circumstances within an officer’s knowledge are ‘sufficient to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.’ ” Roach v. State, 7 So.3d 911, 917 (Miss.2009) (citing State v. Woods, 866 So.2d 422, 426 (Miss.2003)). This Court has held that the issuing court must consider the totality of the circumstances in making the determination of probable cause. Lee v. State, 435 So.2d 674, 676 (Miss.1983) (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. (quoting Gates, 462 U.S. at 238-39, 103 S.Ct. at 2317). In determining whether the issuance of a search warrant was proper, this Court reviews whether there was a substantial basis for the conclusion that probable cause existed. Roach, 7 So.3d at 917 (quoting Gates, 462 U.S. 213, 238-39, 103 S.Ct. at 2317 (1983)).

¶ 44. During Hughes’s trial, the defense objected to the evidence obtained in the search warrant executed on Hughes’s house. The defense argued that the affidavit and “Underlying Facts and Circumstances” sheet submitted when Detective Neal applied for the warrant did not state sufficient facts to support a finding of probable cause that would permit the judge to issue the warrant. After a suppression hearing, the trial judge overruled the defense’s objection, finding that the affidavit, facts sheet, and oral testimony given before the municipal judge supported the finding of probable cause to search Hughes’s house. The defense made a continuing objection to all the evidence obtained from the search warrant, including the TredSafe shoes.

¶ 45. On appeal, Hughes argues that the trial court’s ruling was error because the municipal judge had lacked a substantial basis for the finding of probable cause. In particular, she points to the trial testimony of Detective Frank Dillard, who said that he had no evidence that Hughes actually had worn the TredSafe shoes on November 29, 2006. We review the evidence that was before the municipal judge. When Detective John Neal applied for the search warrant, the municipal judge reviewed Detective Neal’s “Underlying Facts and Circumstances” sheet requesting the warrant and heard oral testimony from Detective Neal. The “Underlying Facts and Circumstances” sheet recited information about the crime scene and the police’s suspicion of Hughes after she voluntarily admitted to having a romantic relationship with Pittman. The sheet also included a crucial piece of evidence — Nash’s information that he had loaned a folding knife and a fully loaded five-shot Rossi .38 caliber gun to Hughes on November 26, 2006, and that Hughes had returned the empty gun on December 1, two days after the murder. Nash had turned that weapon over to the police. Detective Neal testified that he had explained orally to the municipal judge that the police had reason to believe that the gun Nash had submitted was involved in the murder because the autopsy had revealed that Banks’s wounds were caused by the same or similar caliber weapon.

¶ 46. We hold that the trial court did not err by finding that the municipal judge had a substantial basis for the finding of probable cause to issue the search warrant. The police had a weapon in custody that linked Hughes to the murders, and Hughes had a motive for killing Banks. Considering the totality of the circumstances, the facts and circumstances outlined in the “Underlying Facts and Circumstances” sheet, along with Detective Neal’s “Affidavit for Search Warrant” and oral testimony, a person of reasonable caution could conclude there was a probability that evidence of the crime was located at Hughes’s house. Therefore, the trial court did not err by overruling the motion to suppress and admitting the evidence obtained in the search of Hughes’s house.

V. WHETHER THE COURT ERRED IN OVERRULING HUGHES’S MOTION FOR A DIRECTED VERDICT.

¶ 47. Hughes argues that the trial court erred by denying her motion for a directed verdict on the capital-murder charges. Hughes argues that the State failed to prove the underlying crime of burglary, because the State did not prove that Hughes was at the Pittman/Banks home that evening. When reviewing a trial court’s ruling on the sufficiency of the evidence, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Bush v. State, 895 So.2d 836, 843 (Miss.2005). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 843 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). If the facts and inferences point in favor of the defendant with sufficient force that reasonable persons could not have found the defendant guilty beyond a reasonable doubt, then the reviewing court must reverse and render. Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). But if reasonable persons might reach different conclusions on every element of the offense, then the court will affirm. Id.

¶ 48. “A capital murder conviction under Miss.Code Ann. § 97-3-19(2)(e) must be supported by evidence legally sufficient to support a conviction of both the murder and the underlying felony, had either been charged alone.” Spicer v. State, 921 So.2d 292, 311 (Miss.2006). Hughes was indicted under Mississippi Code Section 97-3-19(2)(e) for two counts of capital murder while “engaged in the commission . of the crime of burglary, in that she did willfully, unlawfully, felo-niously and burglariously break and enter into the dwelling house of [Banks], with the intent to commit the crime of assault therein....” See Miss.Code Ann. § 97-3-19(2)(e) (Rev.2006). The crime of burglary requires the breaking and entering of a dwelling house of another with the intent to commit some crime therein. Miss.Code. Ann. § 97-17-23(1) (Rev.2006).

¶ 49. Even though Hughes correctly argues that there was no direct evidence of burglary, direct evidence is unnecessary to support a conviction when the circumstantial evidence is sufficient to establish guilt beyond a reasonable doubt. Neal v. State, 805 So.2d 520, 526 (Miss.2002) (quoting Campbell v. State, 798 So.2d 524, 528-29 (Miss.2001)). Circumstantial evidence need not exclude every possible doubt, but should exclude every other reasonable hypothesis consistent with innocence. Id. As in cases involving direct evidence, in cases based on circumstantial evidence, it is the jury’s role to weigh the evidence and resolve any conflicts therein. Goff v. State, 14 So.3d 625, 650 (Miss.2009).

¶ 50. We find that there was sufficient evidence to permit a rational trier of fact to have found the essential elements of burglary beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. As discussed in Issue II, there was ample circumstantial evidence that Hughes broke and entered the Pittman/Banks home for the purpose of assaulting Banks. Hughes had a motive for harming Banks because Hughes was upset about Banks’s relationship with Pittman. Hughes knew where Banks lived because she had been to her house before. Cell-phone records placed Hughes in the vicinity of the Pittman/Banks home during the time of the murder. The murder weapon was linked to Hughes through Nash, who had loaned the loaded gun to Hughes a few days before the murders and had received the empty gun back from Hughes two days after the murders. The elements of breaking and entering were shown by police testimony describing how the rear door to the Pittman/Banks home had been forced open. And shoes matching the footwear impression made on the rear door of the Pittman/Banks home were found in Hughes’s closet, and Banks’s blood was found on the shoes.

¶ 51. Viewing the evidence in the light most favorable to the verdicts, the facts and inferences from the circumstantial evidence could lead a reasonable jury to find that Hughes was guilty of the two counts of capital murder beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. There was sufficient evidence to support the guilty verdicts, and the trial court did not err by denying Hughes’s motion for a directed verdict.

VI. WHETHER THE COURT ERRED BY ADMITTING DNA EVIDENCE FROM THE TRED-SAFE SHOES.

¶ 52. Hughes argues that the State did not show an unbroken chain of custody of the TredSafe shoes and that the trial court erred by admitting the results of the DNA testing of the TredSafe shoes performed by Dr. Bo Scales. This testing established that Banks’s blood was on the shoes. An argument that the State failed to establish the chain of custody is a challenge to the authenticity of the evidence. Deeds v. State, 27 So.3d 1135, 1142 (Miss.2009). Rule 901 of the Mississippi Rules of Evidence states that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” M.R.E. 901(a). “In order for the defendant to show a break in the chain of custody, there must be an ‘indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.’” Deeds, 27 So.3d at 1142 (quoting Spann v. State, 771 So.2d 883, 894 (Miss.2000)). A mere suggestion that tampering possibly could have occurred does not satisfy the defendant’s burden. Id. This Court reviews a trial court’s admission or exclusion of evidence for abuse of discretion. Ellis v. State, 934 So.2d 1000, 1004 (Miss.2006).

¶ 53. The State argues that Hughes is procedurally barred from raising this issue because she did not contemporaneously object to the admission of the DNA evidence obtained from the TredSafe shoes. A contemporaneous objection is necessary to preserve an error for appellate review. Smith v. State, 797 So.2d 854, 856 (Miss.2001) (quoting Smith v. State, 530 So.2d 155, 161-62 (Miss.1988)). Hughes counters that she preserved the issue by raising it in her motion for a new trial. As previously discussed in Issue I, “[rjaising objections in a motion for new trial which should have been made at trial has never been thought to cure the failure to object at the proper time.” Id. We note that, at the trial, Hughes did object to the admission of the DNA evidence obtained from the shoes, and moved for a mistrial, but not until after the State had rested its case-in-ehief and the trial court had denied Hughes’s motion for a directed verdict. The trial court found that Hughes’s objection was untimely, and Hughes does not challenge this ruling on appeal. This issue is procedurally barred due to the lack of a contemporaneous objection.

¶ 54. Notwithstanding the procedural bar, this issue is without merit. No evidence supported an “indication or reasonable inference of probable tampering” that would have supported the exclusion of the TredSafe shoes. The State established the chain of custody for the relevant times as follows. The Mississippi Crime Laboratory’s test of the shoes was negative for the presence of blood. The chain-of-custody form shows that the Mississippi Crime Laboratory had custody of the shoes from December 13, 2006, through April 4, 2007, when an officer with the Ridgeland Police Department retrieved the shoes to store them in the evidence vault. On October 16, 2008, Assistant District Attorney Rebecca Mansell, Detective Brian Myers, and the evidence custodian opened the evidence bag, and Detective Myers visually inspected the shoes. When he noticed tiny spots that appeared to be blood on the side of a shoe sole, Mansell decided that the shoes needed to be tested for blood and DNA a second time. The shoes were released to Mansell. Detective Myers could not recall resealing the evidence bag, but he testified that it was policy for the evidence custodian to reseal the package and sign over the seal to prevent tampering.

¶ 55. On October 21, 2008, Greg Ek-lund, an investigator with the district attorney’s office, submitted the shoes to Scales Biological Laboratory for testing. The submission form stated “sealed evidence bag opened by Ridgeland P.D. Detective Brian Myers in presence of ADA Rebecca Mansell. Then transported to SBL by DA. Inv. Eklund.” A box was checked on the form indicating that the seals were intact. Dr. Scales’s testing revealed that Banks’s blood was present on the side of a shoe sole.

¶ 56. Hughes argues that two problems establish a break in the chain of custody. First, Hughes argues that, because the first round of testing by the Mississippi Crime Laboratory was negative for the presence of blood, but the second round of testing by Dr. Seales was positive, there must have been tampering that deposited Banks’s blood on the shoes between testings. Second, Hughes argues that tampering is more likely because Dr. Scales testified that he received the shoes in a box without the wrapping, which arrived the next day.

¶ 57. The State provided an explanation for the second test of the shoes. During the first round of testing at the Mississippi Crime Laboratory, the upper sides and tops of the shoes were tested to prevent disturbing evidence on the soles of the shoes that would have inhibited the footwear impression testing. The spots of blood later identified on the shoes were on the side of the sole, which previously had not been tested. Dr. Scales testified that these spots were very difficult to see with the naked eye, but were “obvious” when viewed under a microscope. Dr. Scales testified that it would have been virtually impossible for Banks’s blood to have been transferred to the shoes at his lab because his lab did not possess a liquid sample of Banks’s blood, but only a stain of her dried blood on a card. He also testified that, typically, the lab would not accept an unsealed sample. While it appears irregular that Dr. Scales received the shoes in a box without wrapping, that fact alone is not enough to establish more than a mere suggestion that tampering or contamination of the shoes occurred. And under Deeds, a mere suggestion is not enough to establish a reasonable inference of probable tampering.

CONCLUSION

¶ 58. Hughes’s issues are without merit. The evidence was sufficient to support the verdicts, and the verdicts were not against the overwhelming weight of the evidence. The trial court did not err by denying one of Hughes’s peremptory challenges, and it did not err by denying Hughes’s motion to suppress the evidence obtained in the search of Hughes’s house. Hughes’s arguments based on jury misconduct and the trial court’s admission of DNA evidence from the TredSafe shoes are procedurally barred for lack of a contemporaneous objection. We affirm the judgment of the Circuit Court of Madison County.

¶ 59. COUNT I: CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE POSSIBILITY OF PAROLE, AFFIRMED. COUNT II: CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE POSSIBILITY OF PAROLE, AFFIRMED. THE SENTENCES IMPOSED SHALL RUN CONCURRENTLY WITH EACH OTHER.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.

      . Tests revealed that Hughes was not, in fact, pregnant.

      . According to Pittman, it was customary for Banks to stop and pick up the mail when she arrived home from work, and then pull in the garage and close the garage door before getting out of her car.

      .Banks’s purse, pieces of mail, and some keys were scattered next to Banks’s body, suggesting that she had just arrived home when she was killed.

      . One shot went through Banks’s left buttock and abdomen, one went into her lower left chest wall and into her lung, and one was through the back of her head behind her left ear. Powder burns on Banks’s skin indicated that the shot through the head was made from close proximity.

      . Several spellings of "TredSafe” appear in the record, including Tred-Safe and Tread Safe. This Court uses TredSafe, which is the correct spelling, according to the box in which the shoes were found at Hughes's house.

      . The State used nine of its peremptory challenges, including five on African-Americans. The State was able to articulate race-neutral reasons for each of those strikes when the defense raised a Batson challenge, and the court allowed each strike.

      . On appeal, Hughes does not challenge the trial court’s finding of pretext regarding juror number twenty-two.