source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge. MURPHY, J.,

license: Public Domain

text:
    STATE of Louisiana v. Lloyd RICHARD.
    Nos. 12-KA-310, 12-KA-311.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2013.

      Ricky L. Babin, District Attorney, Donald D. Candell, Assistant District Attorney, Gonzales, LA, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT M. MURPHY, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

^Defendant, Lloyd Richard, was convicted of attempted second degree murder in violation of La. R.S. 14:27:30.1 (count one) and aggravated burglary in violation of La. R.S. 14:60 (count two). Defendant was sentenced on count one to 50 years at hard labor without benefit of parole, probation, or suspension of sentence, and on count two to a consecutive 30-year sentence at hard labor without benefit of parole, probation, or suspension of sentence. Defendant appeals his convictions and sentences.

FACTS

In the early morning hours of January 26, 2008, Ms. Alonda Dennis, the victim, had finished her night shift at St. James Hospital, where she worked from 6:00 p.m. to 6:00 a.m. After stopping at a grocery store, she arrived home at 7:04 a.m., and as she put her groceries away, she noticed that her kitchen knife was not in the kitchen, but thought nothing further. After eating a sandwich, she retired to bed and fell asleep, wrapped in her comforter. She was awakened by a black male | ^standing over her. The intruder wore a black skull cap on his head, a red bandana over his face, and gloves. The intruder jumped on her back and began trying to stab her with a knife. The victim jumped up, throwing her assailant off of her and dislodging the knife from his hand. She screamed and attempted to run away. He threw her to the floor, jumped on her back, and began punching her in the head. While receiving blows upon her head and struggling with her assailant, the victim asked her assailant, “Why you want to kill me?” He did not respond and continued beating her. As the struggle ensued, the victim managed to turn and observe her assailant’s face, by then uncovered, and she instantly recognized him.

The assailant grabbed a cord from a hairdryer nearby and attempted to place it around the victim’s neck. In an effort to keep the cord off her neck, she squeezed her assailant’s genitals, and he ran from the room. The victim then locked her bedroom door, jumped out the window, and called “9-1-1” for help.

At 8:24 a.m., Deputies Evans Joseph and Donald Hawthorne of the St. James Parish Sheriffs Office responded to the call and arrived on the scene at 9202 Central Project Street in Convent, Louisiana. They observed a female standing outside an opened window in just her bra and underwear with a bloody nose and cuts on her chin and lips. The female identified herself as Alonda Dennis and told the officers that she woke up to find Lloyd Richard in her bedroom with a knife. Deputy Joseph secured the victim in the backseat of his car while Deputy Hawthorne and he searched the premises for the suspect. In the rear of the residence, a sliding door was open, which appeared to be the suspect’s entry and exit point. The officers requested medical assistance, and an ambulance soon arrived on the scene and transported the victim to the hospital.

14Lieutenant Tyrone LaFarge arrived on the scene and learned that the suspect resided two streets over on Field Street. Lieutenant LaFarge proceeded to that residence where he spoke with Ms. Anna Canard, who also resided there. Ms. Canard informed the officers that she did not know where defendant was at the moment, but that he resided in one of the back rooms, and that they were welcome to look for him. The officers searched the residence and defendant’s room, but defendant was not present. Lieutenant LaFarge left the residence and began to search for defendant in another area. Deputy Edwin Whittington remained stationed on Field Street, where he observed a black male exit a nearby trailer and proceed toward defendant’s house. The deputy notified the lieutenant, who returned and again obtained permission from Ms. Canard to search the residence. This time, the door to defendant’s room was locked and the officers heard noise coming from inside the room. Lieutenant LaFarge ordered defendant to come out, but there was no response. Another deputy issued the order again, and the defendant opened the door and stepped out. The officers observed a scratch under defendant’s left eye and a cut on his left index finger. Defendant was detained and advised of his Miranda rights.

Detective Claude Joseph Louis, Jr., obtained a taped statement from the victim and collected evidence from her residence which included one pair of white gloves with black dots, one black skull cap, one pair of red and white Nike shoes (size 9 1/2), and a 13-inch black-handled knife. The victim initially told Detective Louis that these items were not hers and did not belong in her residence. However, at trial the victim testified that the knife reeov-ered from her bedroom was her kitchen knife.

|¡iForensic DNA analysis was performed on several of these items. Ms. Deanna Lankford, an expert in the fields of forensic biology, DNA, and DNA analysis, testified that the DNA profile obtained from the black skull cap was consistent with defendant’s DNA profile. She testified that the inside of the gloves contained genetic material from which the victim and defendant could not be excluded as possible donors. The outside of the gloves also contained genetic material which was consistent with the DNA profile of the victim and an unidentified male contributor. Lastly, Ms. Lankford testified that the genetic material found in two swabs from the knife contained a minimum of two genetic profiles. At least one of the profiles was that of an unidentified male, and the victim could not be excluded as a possible donor of this genetic material.

ASSIGNMENTS OF ERROR

In defendant’s first assignment of error, he argues that his right against double jeopardy was violated because the State utilized the same evidence to support both of his convictions. Defendant contends the evidence used to prove attempted second degree murder was the same evidence used to prove the aggravated burglary element of “with the intent to commit a felony or theft therein.” He maintains that because the only felony which he was alleged to have committed in the home was attempted murder, his right against double jeopardy precludes using the evidence of the attempted murder to support the aggravated burglary intent element.

The Fifth Amendment to the United States Constitution, as well as Article 1, § 15 of the Louisiana Constitution, prohibits placing a person twice in jeopardy of life or limb for the same offense. State v. Garcia, 10-755 (La.App. 5 Cir. 5/10/11), 66 So.3d 24, 27. The concept of double jeopardy, under both the federal and state constitutions, embodies the dual purpose of preventing both multiple punishments and multiple convictions for a single criminal wrong. Id. Thus, every double jeopardy analysis begins with the inquiry into whether a single offense or several offenses are involved. Id.

Louisiana courts utilize two tests in examining violations of double jeopardy. Garcia, supra at 27. The “distinct fact” or Blockburger test is applicable where the same act or transaction constitutes a violation of two distinct statutory provisions. Id. Using Blockburger, “the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact that the other does not.” Id.

The other test, the “same evidence test,” is primarily relied upon by Louisiana courts. Garcia, supra. The Louisiana Supreme Court explained the “same evidence test” as follows:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy for only one. The test depends on the evidence necessary for conviction, not all evidence introduced at trial. Id. (citing State v. Steele, 387 So.2d 1175, 1177 (La.1980)).

The “same evidence test” is slightly broader in concept than Blockburger, and centers on the idea that one should not be punished twice for the same course of conduct. Garcia, supra. Rather, if the evidence required to support a finding of guilt of one crime would also support a conviction for another offense, the defendant can be placed in jeopardy for only one of the two. State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324, 1329. Conversely, if one offense requires proof of additional facts which the other does not, then the accused may be tried |7and convicted on both offenses unless the gravamen of the second offense is essentially included within the offense for which he was first tried, in which case the second prosecution is barred because of former jeopardy. State v. Solomon, 379 So.2d 1078, 1079 (La.1980).

In this case, the defendant, Lloyd Richard, was charged with and convicted of aggravated burglary and attempted second degree murder. Although the bill of information does not specify whether defendant was charged with attempting a felony murder under La. R.S. 14:30.1(A)(2), or a specific intent killing under La. R.S. 14:30.1(A)(1), we conclude that defendant was charged with attempting a specific intent killing since there is no such crime as attempted second degree felony murder because attempted second degree murder requires a specific intent to kill, which is inconsistent with the felony murder theory of La. R.S. 14:30.1(A)(2). State v. Landfair, 07-751 (La.App. 5 Cir. 3/11/08), 979 So.2d 619, 622, writ denied, 08-1143 (La.1/9/09), 998 So.2d 713.

Second degree murder is defined in La. R.S. 14:30.1(A)(1) as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. To prove an attempted second degree murder, the State must establish, beyond a reasonable doubt, that the defendant specifically intended to kill a human being and that he committed an overt act in furtherance of that goal. State v. Brumfield, 04-552 (La.App. 5 Cir. 10/26/04), 887 So.2d 554, 557.

Aggravated burglary is defined in La. R.S. 14:60 as the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender: (1) is armed with a dangerous weapon; or (2) after entering arms himself with a dangerous weapon; or (3) commits a battery upon any person while in such place, or in entering or leaving such place. In order to prove aggravated |8burglary, the State must prove beyond a reasonable doubt that the defendant made an unauthorized entry into an inhabited dwelling with the intent to commit a felony or theft. State v. Manning, 44,403 (La.App. 2 Cir. 6/24/09), 15 So.3d 1204, 1210, writ denied, 09-1749 (La.4/5/10), 31 So.3d 355. Completion of the intended felony or theft is not a necessary element of a burglary; the mere unauthorized entry with the intent to do so suffices. In addition, the State must prove beyond a reasonable doubt the existence of one of the three aggravating factors. Id.

Defendant argues that his right against double jeopardy was violated because the same evidence was required to support both of defendant’s convictions. He contends that the evidence supporting defendant’s attempted murder conviction was the same evidence used to satisfy the aggravated burglary element of “with the intent to commit a felony or any theft therein.” Defendant contends that because there was no evidence that a theft was committed since nothing was taken from the victim’s home, defendant did not intend to commit a theft. Hence, the aggravated burglary must be supported by the intent to commit a felony. Since the evidence indicates defendant attempted to kill the victim, the only felony defendant must have intended was murder.

We disagree. Defendant’s argument focuses on the lack of evidence of a theft, but the lack of evidence of an actual theft does not necessarily mean that defendant did not intend to commit a theft. In this case, the jury could have reasonably concluded from the evidence that defendant entered with the specific intent to commit a theft therein, but did not complete the intended theft, perhaps because the victim was home, or because of her vigorous resistance.

Specific intent is a state of mind, and as such, need not be proven as a fact but may be inferred from the circumstances and actions of the defendant. State v. Poupart, 11-710 (La.App. 5 Cir. 2/28/12), 88 So.3d 1132, 1138, writ denied, 12-705 (La.10/8/12), 98 So.3d 867. The victim, Ms. Dennis, testified that in the days leading up to January 26, 2008, she had seen defendant riding a bicycle around her residence, appearing, in her opinion, to case it for a burglary.

There is also evidence from which the jury could have concluded that defendant entered with the specific intent to commit a felony other than the murder of the victim. The defendant entered the victim’s home masked and wearing gloves. At this point, the jury could have reasonably concluded that defendant’s intentional concealment of his face and fingerprints was evidence that defendant intended to commit some felony or theft once inside, without any evidence of the attempted murder which followed. The Louisiana Supreme Court has recognized that the crime of burglary is complete upon the unauthorized entry with the intent to commit the crime, whereas the intended crime does not occur until actually committed. State v. Solomon, 379 So.2d 1078 (La.1980).

Considering the totality of evidence at trial, it would not be unreasonable for a jury to conclude that defendant intended to commit a theft. Furthermore, from defendant’s actions in entering the victim’s home masked and arming himself, it would not be unreasonable to conclude that defendant intended to commit any number of felonies other than murder, such as aggravated assault, aggravated battery, aggravated rape, other crimes of personal violence, or other felonies.

We do not find that the evidence used to prove defendant’s attempted murder conviction was also required to prove the burglary element “with the intent | l0to commit a felony or any theft therein.” The Louisiana Supreme Court has recognized that specific criminal intent to commit a felony or theft may be inferred from the circumstances, as long as there is some evidence that the defendant actively desired to commit a felony or theft. See State v. Ricks, 428 So.2d 794, 796 (La.1983). Considering the evidence of defendant’s behavior after unlawfully entering the victim’s residence, it is reasonable to infer and conclude that defendant had the specific intent to commit a theft or felony exclusive of the attempted murder, and without additional evidence, such as a completed crime, as defendant contends. When evidence at trial of one crime is not needed to prove an element of another crime, or when an accused commits separate and distinct offenses during the same criminal episode or transaction, the offender may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy.

Garcia, supra, is completely distinguishable from the present case. In Garcia, the defendant was convicted of attempted first degree murder, which required proof of one of several aggravating circumstances. The aggravating circumstance which the State proved was that the attempted murder occurred while in the commission of an armed robbery. Thus, armed robbery and the complete evidence thereof was an element of the offense of attempted first degree murder. The same evidence and facts proved the armed robbery of which Garcia was also convicted. It was therefore clear that the same facts and evidence which proved the same elements of armed robbery for the purpose of convicting Garcia of attempted second degree murder could not be used to convict Garcia of a second crime, the |narmed robbery itself. It is well-settled that double jeopardy precludes conviction of felony murder or attempted felony murder, and also of the underlying felony.

In the present case, commission of an attempted second degree murder is not an element of the aggravated burglary; only the intent to commit a felony or theft is necessary. When the defendant entered the residence with the intent to commit a felony or theft (as the jury concluded), the crime of aggravated burglary was complete. Subsequent acts constituting attempted second degree murder were “distinct facts” constituting a separate crime not precluded by the double jeopardy prohibition. Further, because the element of intent to commit a felony is distinct from commission of the felony, evidence of defendant’s intent to commit second degree murder, or the attempt thereof, could be used to satisfy that element of burglary without precluding prosecution of the attempted second degree murder itself. See also State v. Bridgewater, 98-658, 726 So.2d 987 (La.App. 5 Cir. 12/16/98), in which convictions for both aggravated burglary and for the armed robbery which occurred during the unauthorized entry did not constitute double jeopardy.

We therefore conclude that defendant’s aggravated burglary and attempted second degree murder convictions are not based on the same conduct, but were two separate and distinct offenses committed during the same criminal episode. Evidence of the crime of aggravated burglary was sufficient when defendant entered the victim’s home masked and armed himself with a knife. The attempted murder did not occur until defendant actually attacked the victim. These were two separate and distinct offenses, supported by corresponding separate and distinct facts. The evidence required to support defendant’s attempted murder conviction, which was defendant’s attempts to stab and strangle the victim, would not have been sufficient to convict defendant of aggravated burglary, where aggravated 112burglary requires additional elements such as an unauthorized entry. Likewise, the evidence required to support defendant’s aggravated burglary conviction, which was defendant’s unauthorized entry with a felonious intent, evidenced by his being masked and arming himself with a knife, would not have been sufficient to convict defendant of attempted murder, which requires a specific intent to kill. In this case, defendant could have been convicted of either offense without evidence of the other. Pursuant to the “same evidence test,” we find that defendant was neither convicted nor punished twice for the same conduct. Compare State v. Archield, 09-1116 (La.App. 3 Cir. 4/7/10), 34 So.3d 434, writ denied, 10-1146 (La.5/20/11), 63 So.3d 972.

Accordingly, we find that defendant’s attempted second degree murder conviction does not bar a conviction of aggravated burglary on the grounds that the defendant would be placed twice in jeopardy for the same offense. This assignment of error lacks merit.

In his second assignment of error, defendant argues that the trial court erred in imposing sentence on his aggravated burglary conviction without benefit of parole. We agree.

At the time of the offense, La. R.S. 14:60 provided: “Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.”

At sentencing, the court stated:

[I]t is the sentence of this Court that Lloyd Richard be committed to the Louisiana Department of Corrections for 50 years at hard labor for the offense of attempted second degree murder and 30 years at hard labor for the offense of aggravated burglary, to run consecutive with |1seach other. The sentence is to be without benefit of parole, probation, or suspension of sentence but with credit for time served.

Since the trial court in this case restricted the benefits on defendant’s aggravated burglary sentence in contravention of La. R.S. 14:60, we amend the sentence to delete the restrictions on benefits, and order the trial court to correct the commitment. La.C.Cr.P. art. 882; State v. Lipton, 02-162, (La.App. 5 Cir. 9/30/03), 857 So.2d 1162, 1163, writ denied, 03-3058 (La.2/20/04), 866 So.2d 818. We further remand this matter and order the clerk of the trial court to transmit the original of the corrected commitment to the officer in charge of the institution to which defendant has been sentenced. La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

In defendant’s third assignment of error, he argues that the trial court erred in imposing his sentences consecutively. This Court has held that the failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Hunter, 10-552 (La.App. 5 Cir. 1/11/11), 59 So.3d 1270, 1272; State v. Alvarez, 08-558 (La.App. 5 Cir. 8/31/10), 47 So.3d 1018, 1022; State v. Fuller, 07-319 (La.App. 5 Cir. 2/19/08), 980 So.2d 45, 50, writ denied, 08-0705 (La.10/10/08), 993 So.2d 1282. This Court has also held that when the consecutive nature of sentences is not specifically raised in the trial court, then the issue is not included in the bare constitutional excessive review, and the defendant is precluded from raising the issue on appeal. State v. Escobar-Rivera, 11-496 (La.App. 5 Cir. 1/24/12), 90 So.3d 1, 8, writ denied, 12-0409 (La.5/25/12), 90 So.3d 411; State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 593, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468, cert. denied, Jacobs v. Louisiana, — U.S. -, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012); State v. Williams, 10-265 (La.App. 5 Cir. 11/9/10), 54 So.3d 98, 103. The record in this case reflects that defendant failed to file a motion to reconsider sentence and failed to specifically object to the consecutive nature of his sentences. Accordingly, we find that defendant is not entitled to review of the consecutive nature of his sentences on this appeal.

To the extent defendant challenges the constitutional excessiveness of his sentences, we consider the following. The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, (La.1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334, (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Dorsey, 07-67, (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332, (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court’s sentencing discretion, three factors are considered: (1) the nature of the lacrime; (2) the nature and background of the offender; and (3) the sentence imposed for similar crimes by the same court and other courts. Pearson, Id. at 656.

Defendant’s sentence is within the statutory limits. At the time of the offenses, La. R.S. 14:60 provided: “Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.” Defendant was sentenced to 30 years on his aggravated burglary conviction. La. R.S. 14:30.1 provided: “Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.” La. R.S. 14:27(D)(l)(a) provided: “If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.” Defendant was sentenced to 50 years on his attempted second degree murder conviction.

Considering the nature of the crime, the record reflects that defendant committed a premeditated act, as evidenced by his attempts to obscure his identity, and broke into the victim’s home, armed himself, and violently attacked the victim.

The next factor is the nature and background of defendant and his criminal history. The pre-sentence investigation report indicates that the defendant’s criminal history is extensive, dating back to 1979, including numerous crimes against the person and several crimes of violence.

Lastly, similar sentences have been upheld for similar crimes by this court and other courts. See for example State v. Williams, 11-0414 (La.App. 4 Cir. 2/29/12), 85 So.3d 759, 762, writ denied, 12-0708 (La.9/21/12), 98 So.3d 326 and State v. Robicheaux, 03-1063 (La.App. 5 Cir. 12/30/03), 865 So.2d 149, writ denied, 04-0381 (La.6/25/04), 876 So.2d 830.

lifiWe find that the record supports the sentences imposed and that the trial court did not abuse its discretion in imposing these sentences. This allegation of error lacks merit.

ERROR PATENT DISCUSSION

We have reviewed the record for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

CONCLUSION

For the above discussed reasons, we affirm the defendant’s convictions. We further affirm the defendant’s sentence of 50 years without benefit of probation, parole or suspension of sentence for his conviction for attempted second degree murder. We amend his 30 year sentence for aggravated burglary to delete the restrictions on benefits, and as amended, affirm the sentence. We further remand this .matter to order the trial court to transmit the original of the corrected commitment to the officer in charge of the institution to which defendant has been sentenced.

CONVICTIONS AFFIRMED; SENTENCE AFFIRMED IN PART, AMENDED IN PART, AND AS AMENDED, AFFIRMED. CASE REMANDED.

MURPHY, J., dissents with reasons.

MURPHY, J.,

dissents with reasons.

Li respectfully dissent; under the facts of this consolidated case, relating to the events of January 28, 2008, the State relied on the same evidence to support defendant Lloyd Richard’s convictions of attempted second degree murder and aggravated burglary, thus violating double jeopardy protections of the United States and Louisiana constitutions. U.S. Const. Amend. 5; La. Const. Art. 1, § 15.

In State v. Garcia, 10-755 (La.App. 5 Cir. 5/10/11), 66 So.3d 24. this Court set forth two tests to be employed in analyzing violations of double jeopardy: the “distinct fact” or Blockburger test; or the “same evidence” test. State v. Williams, 07-931 (La.2/26/08), 978 So.2d 895.

Here, the evidence presented to support the “intent to commit a felony or theft therein” element of aggravated burglary-defendant’s attempts to kill the victim-was the same evidence presented to prove attempted second degree murder. Under these limited facts, the State concedes that the prohibition against double jeopardy precluded using the evidence of defendant’s attempts to kill the victim to support both the attempted murder charge and aggravated burglary’s intent to “commit a felony” element:

Aggravated Burglary
La. R.S. 14:60
(1) Unauthorized entry &
(2) Of an inhabited dwelling &
(3) Person present &
(4) Is or becomes armed or commits a battery &
(5) With specific intent to commit a felony or theft therein.

1 gThe majority contends that Garcia is distinguishable as it relates to a double jeopardy violation based on attempted first degree murder (defendant shot cashier in leg and then shot her two more times before taking cash) having the same underlying facts of armed robbery (defendant took cash from cashier while armed with a firearm), the other charge in that case. This case, the majority argues, has a distinct felony of aggravated burglary that was proven when the defendant broke into the house and armed himself before committing the crime of attempted second degree murder, the other charge in this case.

To the contrary, I find a Garcia analysis of the underlying predicate in the aggravated burglary charge is on point here, in that the facts that were used to prove up the “intended” felony for aggravated burglary, attempting to kill the victim, were the same facts that were used to convict the defendant of attempted second degree murder. The majority seems to fail to appreciate aggravated burglary’s separate specific intent requirement: to commit a theft or felony therein. To use the required felony for aggravated burglary while at the same time charging him with attempted second degree murder patently violates Garcia, supra. The majority reasons as if the defendant had been charged and convicted of attempted second degree murder and unauthorized entry of an inhabited dwelling, La. R.S. 14:62.8, or attempted second degree murder and unauthorized use of a movable, La. R.S. 14:68, additional available offenses which have no intent to commit a felony or theft therein element. As the State did not so charge, no theft was committed, and the State relied on the same facts of attempted second degree murder on both charges, I find that the defendant was twice put in jeopardy for the same facts.

|sThe majority correctly states that the underlying felony predicate for aggravated burglary need not be stated, but it certainly must exist and have been prosecutable as a distinct felony. Consider when the underlying offense is not stated but is distinct nonetheless. In State v. Coates, 27,287, (La.App. 2 Cir. 9/27/95), 661 So.2d 571, 576, writ denied, 95-2613 (La.2/28/96), 668 So.2d 365, the Second Circuit affirmed defendant Coates’s convictions for manslaughter and second degree kidnapping, holding that the conviction for second degree kidnapping, after the previous plea to manslaughter, did not violate double jeopardy as argued by the defense. The appellate court reasoned that the State was not confined to using second degree kidnapping as the underlying felony for the amended charge of manslaughter, but could have used armed robbery or aggravated battery. The facts therein supported either of those additional charges, although the underlying felony predicate was unstated. The court recognized that “defendant’s argument rests upon the assumption that second degree kidnapping was the predicate felony for a conviction of manslaughter.” Id. In fact, the State had other unstated felonies available. The Coates Court further recognized, however, that despite the State’s having other unstated felonies available, “[djouble jeopardy would exist if the State conceded or the record showed that second degree kidnapping was the basis for Coates’s manslaughter plea.” (Emphasis added).

In the instant matter, the State has made such a factual concession, specifying that it “adduced no evidence of any other felony ... other than attempted murder.” After relying on this same evidence for both convictions, the State conceded in this case that it “failed to adduce ^sufficient evidence to convict the defendant of [the separate offense] of aggravated burglary.” No other potential felonies were available under the facts of this case.

The record is replete with the reliance on the same facts to convict defendant on both counts.

STATE IN OPENING:
We are going to prove to you beyond a reasonable doubt that Mr. Lloyd Richard, the gentleman sitting right here, broke into the home of Ms. At-onda Dennis and tried to kill her. And how I’m going to prove that, ladies and gentlemen, is you’ll hear witnesses come from the stand. We are going to call witnesses that will establish in no uncertain terms that on January 26, 2008 at 98202 Central Project Street in Convent, Louisiana the home of Ms. Dennis that Mr. Richard broke in and attempted to kill that lady. (R., p. 307).
* * *
DEFENSE’S CROSS-EXAM OF MS. DENNIS:
Q. So after the incident, was there anything missing from your house?
A. No, he did not steal a thing. He was not there for that. He was there to do just what he tried to do that was to kill me. (R., p. 428).
* * *
STATE’S REBUTTAL ARGUMENT:
It’s an all or nothing case in my opinion. Either he tried to kill her or he didn’t. Either he broke in the house or he didn’t. I see a big hill. And the hill is Ms. Dennis saying I saw the guy, I knew who he was. He was trying to kill me. He was in my house. He didn’t have permission, and he tried to kill me. (R., p. 522).
Ladies and gentlemen, as I indicated I think it’s clear as a bell that there is proof beyond a reasonable doubt the Mr. Lloyd did what is alleged he’s done. He broke into the lady’s home, and she indicated he didn’t have permission. He tried to kill her. That can’t happen. He tried to kill her. Beyond a reasonable doubt that is there. I don’t think there is anything we can do about it. It’s done. She survived. He had a tiger by the tail that he could not handle. He’s a small fellow. And he attacked this lady and she fought for her life. (R., pp. 523-24).

| sThe record demonstrates that the testimony, evidence, and argument focus on the single felony of attempted second degree murder.

Double jeopardy protects against multiple punishments for the same offense. U.S. Const. Amend. 5; La. Const. Art. 1 § 15; La. C.Cr. P. art. 591. It can be raised at any time, even on appeal. La. C.Cr.P. arts. 532(1), 591, 594; State v. Lefeure, 00-1142, p. 8 (La.App. 5 Cir. 1/30/01), 778 So.2d 744, 750, writ denied, 01-1440 (La.9/21/01), 797 So.2d 669; and State v. Austin, 04-993 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, writ denied, 05-0830 (La.11/28/05), 916 So.2d 143 (a plea of double jeopardy- had been considered first time on appeal).

As a general rule, “the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.” La. C.Cr.P. art. 61. After conviction, the District Attorney is authorized to dismiss an indictment or count thereof on grounds of arrest of judgment under La.C.Cr.P. art. 692(2); double jeopardy is specifically listed as one of eight grounds to arrest judgment. La.C.Cr.P. art. 859(6). Because this Court is authorized to review double jeopardy violations, even on appeal, by force of logic, it should now consider the State’s concession as to the evidence presented. See Coates, supra. Briefs are not part of the record; here, however, the State responded to the appeal on July 27, 2012 conceding the facts presented by the defendant on the constitutional issue currently pending before this Court. This concession in is addition to the nature of the evidence and argument presented on the record at trial.

The Fifth Circuit holding in State v. Lefeure, sivpra, distinguishes between offenses relying on the same facts and thus violating double | jeopardy protections and offenses relying on different facts which do not violate double jeopardy protections. In Lefeure, the defendant was charged with three offenses: armed robbery of the salesperson at a daiquiri shop; aggravated burglary of the store; and second degree kidnapping of the same armed robbery victim. This Court found that convictions of armed robbery and aggravated burglary did not violate double jeopardy as the aggravated burglary was completed (unauthorized entry into store, with intent to commit a felony therein, while armed with a gun), before the armed robbery (defendant forced employee at gunpoint to turn over money) was then committed. Id. at 751. This Court found, however, that as to the convictions for armed robbery and second degree kidnapping, the result was different, since the same evidence to support the conviction of armed robbery was used to support the conviction of second degree kidnapping. Id. at 752. The Fifth Circuit ruled that under the “same evidence” test, as set forth in Garcia, 66 So.3d at 27, the two were the same offense:

[w]hen defendant entered Cox’s vehicle armed with a dangerous weapon and forced Cox to drive him somewhere, he simultaneously committed the acts which could have supported a conviction for either offense.... In presenting the facts to prove one offense, the other offense is simultaneously established. Therefore, since the same evidence will support a conviction for either offense, the Defendant cannot be put in jeopardy for the two separate offenses. Lefeure, 778 So.2d at 753.

The instant case is on point with the finding of double jeopardy in Lefeure. The same evidence of defendant’s entering Alonda Dennis’s dwelling without authorization and arming himself with a dangerous weapon, with intent to commit murder — the felony intent element of aggravated burglary as stipulated by the State-supports convictions for both offenses, aggravated burglary and attempted second degree murder.

| r,See also State v. Miller, 571 So.2d 603 (La.1990) (person acquitted of attempted rape could not subsequently be prosecuted for simple kidnapping where one element of the simple kidnapping allegation was the intent to commit the rape); State v. Burton, 649 So.2d 694 (La.App. 3 Cir.1994) (conviction of second degree kidnapping and attempted forcible rape impermissible); State v. Lockhart, 457 So.2d 176 (La.App. 2 Cir.1984) (under facts of the case a prosecution for attempted forcible rape was precluded by a previous prosecution for aggravated burglary); and State v. Powell, 598 So.2d 454 (La.App. 2 Cir.1992), writ denied, 605 So.2d 1089 (La.1992) (armed robbery conviction and aggravated battery conviction violated double jeopardy as evidence of the robbery also proved the battery).

Based on the above, in my review of the trial record and the State’s concession, the same evidence was used to support both convictions. Defendant here was subjected to double jeopardy. Thus, in addressing assignment of error number one, I would vacate the conviction and the sentence of the less severely punishable offense of aggravated burglary and affirm the conviction and sentence of the more severely punishable offense of attempted second degree murder. See State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990). This would then moot the sentencing issues presented in assignments of error two and three.

      . Defendant was known to the victim because he had dated her sister.

        . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The State, in brief, concedes to defendant’s argument. Despite the State’s concession, we address this issue and find it without merit.

      . Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932).

      . In Solomon, the Louisiana Supreme Court was faced with the issue of whether the defendant’s convictions of simple burglary and theft constituted double jeopardy. The defendant had broken into a police officer’s vehicle and stolen a watch. Id.., 379 So.2d at 1079. The court applied the "same evidence” test and concluded that there was no double jeopardy violation. Id., 379 So.2d at 1079-80. The court explained "... that the exact same evidence is not required for a conviction of the defendant on both the burglary and theft charges because a conviction of burglary requires the additional proof of an unauthorized entry with the intent to commit a felony or theft therein." Id. The court found that the two charges were not based on the exact same conduct, explaining that ”[t]he crime of burglary was completed upon entry into the car with the intent to commit the theft therein, whereas the theft did not occur until the defendant actually took the watch from the glove compartment.” Id., 379 So.2d at 1080. The court concluded ”[t]his distinction makes it clear that the burglary of the automobile and the theft of the watch were two separate and distinct offenses and therefore, the conviction of one would not bar a conviction on the other on the grounds that the defendant would be placed twice in jeopardy for the same offense.” Id.

        . In Ricks, the defendant’s conviction of attempted simple burglary of an inhabited dwelling was overturned by the Louisiana Supreme Court on the grounds that there was no evidence to indicate the defendant had the intent to commit a felony or theft therein when the defendant was unarmed, carried no burglary tools, and did not steal or attempt to steal anything. Id., 428 So.2d at 795-97. In this case, unlike Ricks, defendant, who was masked, armed himself upon entering the victim’s residence, from which a jury could conclude that the requisite intent existed.

      . In Archield, the defendant was convicted of aggravated rape and aggravated burglary. In that case, the defendant entered the house, without permission, hit the victim and held a vase over her head and threatened to hit her with it. He then sexually assaulted her. On appeal, the court found no violation of double jeopardy, finding that the defendant could have been convicted of aggravated rape without proof that an aggravated burglary occurred and that he could have been convicted of aggravated burglary without proof that the rape occurred.

      . In Lipton, the defendant pled guilty to one count of aggravated burglary, in addition to ten other offenses. At sentencing, after imposing sentence on each count, the trial judge pronounced that the "sentence is without benefit of probation, parole or suspension of sentence.” Id., at 1167. On appeal, this Court noted that not all of the offenses, in-eluding aggravated burglary, could be imposed without benefits. Id., at 1167. As a result, the court found the sentence on the aggravated burglary conviction, in addition to some others, was illegal, amended the sentences to delete the restrictions on benefits, and ordered the trial court to correct the commitment. Id., at 1167.

      . Under La. R.S. 31(A)(2)(a), manslaughter is:
      (2) A homicide committed, without any intent to cause death or great bodily harm (a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person.”
      (Emphasis added).

      . In its brief, the State explicitly:
      acknowledges that defendant's convictions for aggravated burglary and attempt second degree murder violate the prohibition against double jeopardy under the facts and circumstances adduced at trial herein. (State's Br. at 8).
      [T]he State adduced no evidence of any other felony committed inside Ms. Dennis' home other than attempted murder. Accordingly, the State would agree that it failed to adduce sufficient evidence to convict defendant of aggravated burglary. (State's Br. at 11).


author: CARLTON, J.,

text:
    Earnest STRIBLING, Appellant v. RUSHING’S, INC., Appellee.
    No. 2011-CA-01444-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2013.
    Rehearing Denied June 11, 2013.
    Joe N. Tatum, attorney for appellant.
    Arthur F. Jernigan Jr., Ridgeland, Samuel E.L. Anderson, attorneys for appellee.
    Before GRIFFIS, P.J., CARLTON and FAIR, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Earnest Stribling appeals the Hinds County Circuit Court’s decision granting summary judgment in favor of Stirling Properties Inc. and Rushing’s Inc. (collectively, Rushing’s). Finding no error, we affirm.

FACTS

¶ 2. On November 26, 2008, Stribling and his girlfriend, Elizabeth Veal, entered the Piggly Wiggly on Meadowbrook Road in Jackson, Mississippi. While inside the store, Michael Bolden, a Piggly Wiggly store clerk, allegedly approached Stribling about purchasing a watch. Stribling expressed interest in purchasing the watch, so Bolden walked outside into the parking lot. Stribling followed. Stribling alleges that when he arrived at Bolden’s car, Bol-den turned around and shot Stribling. As result of the incident, Stribling was hospitalized and underwent two surgeries.

¶ 3. On January 29, 2010, Stribling filed suit against Rushing’s, Inc., the owner and operator of the Piggly Wiggly store, and also Stirling Properties, Inc., on the theory of premises liability. In his complaint, Stribling alleged that Rushing’s, Inc. and Stirling Properties failed in their duty to make their premises reasonably safe and failed to take reasonable security precautions to protect their customers from foreseeable harm. Stribling also claimed that the negligent “actions and inactions” of Rushing’s, Inc. and Stirling Properties caused Stribling pain, suffering, and injuries.

¶4. Both Rushing’s, Inc. and Stirling Properties moved for summary judgment, which the circuit judge granted based on the lack of proof of either foreseeability or proximate cause. In his opinion, the circuit judge found that Stribling was an invitee. The circuit judge determined that Stribling failed to present evidence in support of his negligence claim sufficient to raise a dispute of material fact. The circuit judge also held that Stribling had failed to show any facts that would have placed Piggly Wiggly or Stirling Properties on notice, actual or constructive, that Bolden allegedly possessed a violent nature; that an atmosphere of violence existed on the premises; or that any danger to Stribling existed.

STANDARD OF REVIEW

¶ 5. We review the circuit court’s grant of summary judgment de novo. Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 464 (¶ 3) (Miss.Ct.App.2003) (citing Young v. Wendy’s Int'l., Inc., 840 So.2d 782, 783 (¶ 3) (Miss.Ct.App.2003)). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. at 464-65 (¶ 3) (quoting Piggly Wiggly of Greenwood, Inc. v. Fipps, 809 So.2d 722, 725 (¶ 9) (Miss.Ct.App.2001)); M.R.C.P. 56(c). This Court views the evidence in the light most favorable to the nonmovant. Byrne, 877 So.2d at 465 (¶ 3) (citing Young, 840 So.2d at 784 (¶ 7)).

¶ 6. “To survive summary judgment, the non-moving party must offer ‘significant probative evidence demonstrating the existence of a triable issue of fact.’ ” Id. (quoting Young, 840 So.2d at 784 (¶ 5)). When a motion for summary judgment is made and supported:

an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [Mississippi Rule of Civil Procedure 56], must set forth specific facts showing that there is a genuine issue for trial.

M.R.C.P. 56(e).

DISCUSSION

I. Premises Liability

¶ 7. Stribling argues that the circuit judge erred in granting summary judgment in favor of Rushing’s. He claims that sufficient facts existed to create a question for the jury on whether Rushing’s negligently breached a duty to Stribling and whether that negligent breach caused Stribling’s injuries. Stribling states that an employer may be liable to a third person for the employer’s negligence in hiring or retaining an incompetent or unfit employee. Stribling alleges that the circuit court failed to consider or address Bol-den’s long list of arrests.

¶ 8. Stribling also claims that had Anderson Hayes, the manager at Piggly Wiggly, performed a criminal background check on Bolden prior to hiring him, Hayes would have discovered Bolden’s criminal record, which included arrests for several felonies. Stribling claims that Bol-den’s felony history would have prevented Hayes from hiring Bolden and placing Bol-den in a position to lure and shoot Stri-bling on November 26, 2008. Stribling argues that the circuit court should have allowed him to present his case to a jury to determine whether Rushing’s, through Hayes, was negligent in hiring Bolden, and whether Hayes’s negligence constituted the proximate cause of Stribling’s injuries.

¶ 9. The first step in a premises-liability action is to determine the status of the injured party. As stated, the circuit judge found that since Stribling entered Piggly Wiggly as a customer, Stribling thus constituted an invitee for premises-liability purposes. In Mississippi, business owners possess a duty to invitees to exercise reasonable care to keep the business premises in a “reasonably safe condition.” Jacox v. Circus Circus Miss., Inc., 908 So.2d 181, 184 (¶ 7) (Miss.Ct.App.2005) (citing Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988)). In addition, a premises owner must employ reasonable care to protect an invitee from “reasonably foreseeable injuries at the hands of another.” Newell v. S. Jitney Jungle Co., 830 So.2d 621, 623 (¶ 6) (Miss.2002).

¶ 10. The Mississippi Supreme Court has explained that an assault on the premises is reasonably foreseeable if the defendant had either: (1) “actual or constructive knowledge of the assailant’s violent nature,” or (2) “actual or constructive knowledge an atmosphere of violence existed on the premises.” Id. at (¶ 7). In assessing the “atmosphere of violence” prong, the supreme court has stated that relevant factors include “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises,” and “the frequency of criminal activity on the premises.” Corley v. Evans, 835 So.2d 30, 38-39 (¶ 26) (Miss.2003) (quoting Gatewood v. Sampson, 812 So.2d 212, 220 (¶ 14) (Miss.2002)).

¶ 11. Rushing’s claims it neither knew nor had reason to believe Bolden possessed any dangerous qualities, and asserts that Stribling failed to raise facts to show any genuine issue of material fact in support of his claims for liability. The record shows that Bolden worked at Pig-gly Wiggly for more than a year without incident in his employment record. Rushing’s also argues that the record contains no evidentiary facts establishing that Bol-den acted while in the course and scope of his employment at Piggly Wiggly, stating that prior to the confrontation in the parking lot, Bolden had clocked out and left Piggy Wiggly at his usual time for the day. Rushing’s further submits that the incident allegedly occurred outside of the store (in the parking lot), and therefore no evidence exists supporting Stribling’s claim that the incident occurred on the actual premises owned and operated by Rushing’s.

¶ 12. In his order granting summary judgment, the circuit judge found:

[Stribling] has failed to show that there was a confrontation or even an argument between Bolden and Stribling inside the store, or any other facts, that would have put Piggly Wiggly or Stirling Properties on notice, actual or constructive, that Bolden allegedly had a violent nature, that an atmosphere of violence existed on the premises[,] or that there was any danger to [Stribling], The affidavit of Dr. Michael Clay Smith, [Stribling’s] expert witness, failed to identify any facts that would place Pig-gly Wiggly on notice of a potential danger to Stribling so as to create any duty to take any further action to protect its patrons, including [Stribling], from Bol-den’s potential conduct.
This Court further finds that [Stribling] failed to establish legally sufficient proof that any alleged breach of duty by [Rushing’s] was the proximate cause of the injuries to [Stribling],

¶ 13. After reviewing the evidence in the light most favorable to Stribling, the nonmovant, we find no error in the circuit judge’s determination that Stribling failed to show any genuine issue of material fact in support of his argument that the incident took place on premises owned or controlled by Rushing’s; that Bolden’s conduct or a dangerous situation was reasonably foreseeable to Rushing’s at the time; or that Rushing’s negligently breached its duty to Stribling, the invitee.

II. Failure to Train

¶ 14. Stribling next claims that he is entitled to a jury trial on the issue of whether Rushing’s negligence in allegedly failing to train Bolden proximately caused Stribling’s injuries. Specifically, Stribling argues that Rushing’s negligently failed to train Bolden in customer relations, and thus Bolden took advantage of his job and used his position as an opportunity to “peddle his own wares” to customers at Piggly Wiggly.

¶ 15. Stribling cites to the United States Court of Appeals for the Fifth Circuit case of Foradori v. Harris, 523 F.3d 477 (5th Cir.2008), in support of his argument. In Foradori, an off-duty Captain D’s restaurant employee challenged a customer, Michael Foradori, to a fight. Id. at 481-82. The two engaged in a fifteen to twenty minute loud and heated verbal argument inside the restaurant. Id. at 482. Unlike the present case, the manager in Foradori heard and observed the confrontation. Id. The manager ordered the employee and Foradori outside. Id. As soon as Foradori reached the edge of the parking lot, another restaurant employee unexpectedly punched Foradori from behind. Id. at 491. Foradori’s fall from an elevated embankment rendered him unconscious and resulted in him breaking his neck. Id. at 482. The Fifth Circuit ultimately found:

Captain D’s had a duty to control its off-duty employees ... so as to protect patrons like Foradori from any foreseeable unreasonable risk of harm created by those employees, because those employees’ conduct occurred on Captain D’s premises, and the jury reasonably could have found that Captain D’s manager knew or had reason to know that she had the ability to control them, and knew or should have known of the necessity and opportunity for exercising such control.

Id. at 492. In its analysis, the Fifth Circuit further stated:

[A]n employer who engages in an enterprise is under a duty to anticipate and to guard against the reasonably expected human traits and episodes of its employees within its industry to prevent undue risk of harm to third persons or to other employees; and is likewise required to make such reasonable regulations as the size or complexity of its business may require.

Id. at 494. Under this authority, the Fifth Circuit held the district court properly submitted to the jury the issues of Captain D’s alleged failure to adequately train, supervise, and regulate its employees, as well as its alleged failure to control the actions of its employee. Id. at 491, 494-97.

¶ 16. Regarding the present case, we find significant that the Foradori court held that reasonable minds could differ over the question of whether Captain D’s acts or omissions resulted in a foreseeable harm. Id. at 496-97. Foradori’s facts are clearly distinguishable from those before us. In Foradori, there was no factual dispute that the employee “challenged Fo-radori to a fight in full view and hearing of [the restaurant manager] inside the restaurant for 15 to 20 minutes[.]” Id. at 491. The manager in Foradori also ordered the two to go outside “without investigating, intervening or taking any precaution to protect Foradori.” Id. The manager in Foradori possessed awareness of the employee’s confrontation before sending the employee and Foradori outside of the restaurant, thereby creating a foreseeable risk of harm to Foradori by that off-duty employee. Id. at 496-97.

¶ 17. In the present case, Bolden’s criminal history contained in the record before us reflects that Bolden was not convicted of any of the charges in his prior arrests. The record also contains no evidence that Bolden was ever convicted of any crimes prior to being hired by Piggly Wiggly, or prior to the subject incident. Further, the Mississippi Criminal History Record provided to us reflects that none of the listed prior arrests against Bolden concerned any violent conduct, crimes against a person, or felony charges prior to his employment at Piggy Wiggly. In Holmes v. Campbell Properties, Inc., 47 So.3d 721 (Miss.Ct.App.2010), this Court addressed a similar issue wherein the appellant asserted a claim of negligent hiring and failure to adequately train employees. The Holmes court distinguished its facts from Foradori and found that summary judgment was proper where the employer “had no reason to know or anticipate its employee would behave in ... a violent manner”; “no contradicting evidence of prior actual or constructive knowledge of [the employee’s] violent nature”; and no “indication of any actual or constructive knowledge that an atmosphere of violence existed at the [place of employment].” Id. at 729 (¶ 28).

¶ 18. Taking all evidence in the light most favorable to Stribling, we find no error in the circuit judge’s finding that no genuine issue of material fact existed to support Stribling’s negligence claims. The record reflects that Stribling failed to present evidence sufficient to raise a genuine issue of material fact. , Stribling provided no facts showing that Hayes failed to adequately train, supervise, or regulate Bolden; or that Rushing’s knew or should have known of a foreseeable unreasonable risk of harm to others created by Bolden. Accordingly, we affirm the circuit court’s grant of summary judgment in favor of Rushing’s.

¶ 19. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.

      . In Hoffman v. Planters Gin Co., 358 So.2d 1008, 1011 (Miss.1978), the Mississippi Supreme Court held "[a]s to status, an invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage."


author: ROBERTS, J.,

text:
    Pinkie PULLIAM a/k/a Pinky Pulliam a/k/a Pinky Pullum, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01150-COA.
    Court of Appeals of Mississippi.
    Jan. 15, 2013.
    Rehearing Denied June 11, 2013.

      George T. Holmes, Jackson, Phillip Broadhead, Oxford, attorneys for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Union County Circuit Court found Pinkie Pul-liam guilty of two counts of selling cocaine. Pulliam appeals and claims the circuit court erred when it overruled his objection after the prosecution used peremptory strikes to remove the last three “minority” members of the venire. Pul-liam also claims the circuit court erred when it initially overruled his objection to a law-enforcement officer’s testimony that people who use drugs commonly smoke “Black & Mild” cigars. Although the circuit court later reversed itself and instructed the jury that it was to disregard that testimony, Pulliam claims the circuit court’s instruction did not remedy its error. Finally, Pulliam argues that there was insufficient evidence to support both of the jury’s verdicts. Alternatively, Pul-liam claims the verdicts are contrary to the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2009, Clinton Bailey acted as a confidential informant for the New Albany Police Department. Bailey called Officer Chris Glasson of the New Albany Police Department and informed him that he had an opportunity to buy cocaine from Pul-liam. Bailey borrowed Pulliam’s car and met with two law-enforcement officers: Officer Mike Erby of the New Albany Police Department and Deputy Jeff Chism of the Union County Sheriffs Department. Deputy Chism searched the car Pulliam was driving and Officer Erby searched Bailey. Deputy Chism placed video-surveillance equipment in Pulliam’s car while Officer Erby placed clandestine audio and video equipment on Bailey. The law-enforcement officers gave Bailey sixty dollars to buy cocaine. Bailey then went and bought sixty dollars’ worth of crack cocaine from Pulliam. After the exchange, Bailey drove Pulliam’s car back to meet with Officer Erby and Deputy Chism. Bailey surrendered the cocaine to the law-enforcement officers, who placed it in an evidence bag.

¶ 3. Nineteen days later, Bailey again informed authorities that he had an opportunity to buy cocaine from Pulliam. After a nearly identical pre-buy meeting, Bailey and the car he was driving were wired with surveillance equipment. Authorities again provided Pulliam with sixty dollars to buy cocaine. Following the transaction, Bailey met with Officer Erby and Officer Glasson. As before, Bailey gave the officers the cocaine that he had bought from Pulliam.

¶ 4. Pulliam was later indicted and charged with two counts of selling cocaine. Pulliam went to trial on June 14, 2011. Pertinent facts and procedural matters will be discussed in greater detail below. Suffice it to say, the jury found Pulliam guilty of both counts. The circuit court sentenced Pulliam to two concurrent sentences of thirty years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended and twenty-five years to serve. For count II, the circuit court also ordered that Pulliam serve five years of post-release supervision. Following unsuccessful motions for a judgment notwithstanding the verdict (JNOV) and a new trial, Pulliam appeals.

ANALYSIS

I. THE JURY PANEL

¶ 5. Pulliam, who is African American, claims the circuit court erred when it overruled his objections after the prosecution used its peremptory strikes on two of the three African American members of the venire and another member of the venire who was described as a “minority.” The record does not indicate exactly how many people were summoned for jury duty, but there were forty-three people on the veni-re. Three members of the venire were African American. One potential juror, Lakshan Fernando, indicated that he had been born in Sri Lanka. However, he was also described as Hispanic. Pulliam’s attorney moved “to basically re-draw a veni-re” because there was a “lack of minorities” on the venire.

¶ 6. Phyliss Stanford, the Union County Circuit Clerk, testified that the venire was drawn by sending a letter to randomly selected people from the Union County voter rolls. Stanford further testified that 16.2% of Union County residents qualified as “minorities.” Although less than ten percent of the venire met that description, the circuit court found that there was no evidence of systematic exclusion of people who could be described as “minorities” from the venire. Accordingly, the circuit court overruled Pulliam’s motion to quash the entire venire.

¶ 7. However, the circuit court agreed to reshuffle the order of the venire because the three African American prospective jurors were listed as prospective jurors 29, 41, and 43. Commendably, the circuit court memorialized its reshuffling methodology for the record. The circuit court stated:

Pursuant to the [c]ourt’s ruling, the jury venire was reshuffled. It could not be done by computer and, therefore, it was done by hand. The names of the individuals on the venire were folded and placed in a box. A top was placed on the box and the box was shuffled several times to make sure the names were distributed at random. The [cjourt was present during this process, as well as the defendant and his attorney and the attorneys from the State. There was no objection to the process ..., and I will ask if there’s any objection now....

Neither the prosecution nor Pulliam’s attorney objected. After the reshuffling process, the African American members of the venire were listed as prospective jurors 15, 17, and 24. Fernando became prospective juror 18.

¶ 8. Following voir dire, the circuit court excused prospective juror 15, Barbara Cox, because her mother was scheduled to have surgery, and Cox needed to be with her mother. Accordingly, there were two African Americans on the venire. Fernando also remained on the venire.

¶ 9. Pulliam and the prosecution each had six peremptory strikes. The prosecution used its first peremptory strike on a Caucasian member of the venire. However, the prosecution exercised its second peremptory strike on prospective juror 17, Pamela Ball. After the prosecution used its third peremptory strike on prospective juror 18, Fernando, Pulliam’s trial attorney objected “to the State’s use of a p[er]emp-tory under Batson [v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)].”

¶ 10. Although the prosecution did not concede that Pulliam had demonstrated a prima facie case of purposeful discrimination, the prosecution explained why it had exercised peremptory strikes on Ball and Fernando. The prosecution’s explanations are discussed in greater detail below. The circuit court found that Pulliam had not demonstrated a prima facie case of purposeful discrimination. The circuit court further found that the prosecution’s explanations were race-neutral.

¶ 11. The prosecution tendered the ve-nire to Pulliam, whose trial attorney exercised five peremptory strikes on Caucasian members of the venire. After Pulliam tendered the venire back to the prosecution, it exercised its fourth peremptory strike on prospective juror 24, Glorius Keys, the final African American member of the venire. Pulliam’s trial attorney raised another Batson objection. Again, the prosecution explained the basis for using a peremptory challenge on Keys without conceding that Pulliam had demonstrated a prima facie case of purposeful discrimination. The circuit court again held that Pulliam had not demonstrated a prima facie case of purposeful discrimination, and even if he had, the prosecution’s explanation for striking Keys was race-neutral.

¶ 12. Pulliam claims the circuit court erred when it overruled his Batson objections. According to Pulliam, the circuit court erred “in not following proper Bat-son procedure.” Finally, Pulliam claims the circuit court “further compounded the error when [it] refused to give [Fernando] an official work excuse.” However, the record reflects that the circuit court specifically told Fernando that it would issue a work excuse in the event that Fernando was selected as a member of the jury. In other words, the record does not support Pulliam’s claim that the circuit court refused to provide Fernando with a work excuse.

¶ 13. “A peremptory strike may not be used to exclude a potential juror based on race as such a strike violates constitutional guarantees of equal protection.” Golden v. State, 984 So.2d 1026, 1030 (¶ 13) (Miss.Ct.App.2008) (citation omitted). The Mississippi Supreme Court has instructed:

[A] Batson challenge to a peremptory strike should proceed as follows. First, the defendant must establish a prima facie case of discrimination in the selection of jury members. The prosecution then has the burden of stating a racially neutral reason for the challenged strike. If the State gives a racially neutral explanation, the defendant can rebut the explanation. Finally, the trial court must make a factual finding to determine if the prosecution engaged in purposeful discrimination. If the defendant fails to rebut, the trial judge must base his decision on the reasons given by the State.

Birkhead v. State, 57 So.3d 1223, 1229 (¶ 22) (Miss.2011) (citations omitted). “[T]he pivotal question is whether the opponent of the strike has met the burden of showing that [the] proponent has engaged in a pattern of strikes based on race or gender[.]” Puckett v. State, 788 So.2d 752, 757 (¶ 10) (Miss.2001) (citations and internal quotation omitted). “[I]n other words, [we must determine whether] the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Id.

¶ 14. We need not consider whether the circuit court erred when it declined to find that Pulliam had demonstrated a prima facie case of purposeful discrimination. When the prosecution explains its use of peremptory challenges, it is immaterial whether there is a prima facie demonstration of purposeful discrimination. Golden, 984 So.2d at 1030 (¶ 15) (citing Burnett v. Fulton, 854 So.2d 1010, 1014 (¶ 9) (Miss.2003)).

¶ 15. The prosecution noted that prospective juror 17, Ball, knew Pulliam and his family. She also knew at least three witnesses. Knowing the defendant or the defendant’s family is a valid race-neutral reason for striking a prospective juror. Flowers v. State, 947 So.2d 910, 922 (¶ 26) (Miss.2007).

¶ 16. The prosecutor explained that he used a peremptory challenge on Fernando because Fernando was concerned that he could not get permission to miss work from his employer in Memphis, Tennessee. The prosecutor said he did not want anyone on the jury who was more interested in being somewhere else. Striking a prospective juror whose demeanor indicates that he is hostile to being in court is also sufficiently race-neutral. See Davis v. State, 660 So.2d 1228, 1242 (Miss.1995) (citation omitted). Later, the prosecution further explained that it also appeared that Fernando had difficulty comprehending that the circuit court could give him an excuse from work. According to the prosecutor, Fernando “wasn’t able to comprehend exactly what was going on.” A prospective juror’s responses indicating a lack of understanding has been held to be a valid race-neutral reason for exercising a peremptory strike. See Perry v. State, 637 So.2d 871, 874 (Miss.1994). Finally, the prosecution explained that it used a peremptory challenge on prospective juror 24, Keys, because Keys was “looking to be off the jury[, and she was] telling everybody that wanted to hear that she was moving and didn’t want to be here.” Additionally, the prosecution noted that Keys was related to one of Pulliam’s witnesses. We do not find that the circuit court abused its discretion when it found that the prosecution’s explanations were race-neutral and non-pretextual.

¶ 17. Furthermore, “[t]he burden remains on the opponent of the strike to show that the race-neutral explanation given is merely a pretext for racial discrimination.” Golden, 984 So.2d at 1030 (¶ 13) (quoting Flowers, 947 So.2d at 917 (¶ 9)). When a defendant fails to rebut the prosecution’s race-neutral reasons for a peremptory strike, “the trial judge may base his decision only on the reasons given by the [prosecution].” Id. at 1030 (¶ 15) (quoting Coleman v. State, 697 So.2d 777, 786 (Miss.1997)). Pulliam did not rebut the prosecution’s race-neutral explanations.

¶ 18. According to the Mississippi Supreme Court, “on appellate review, a trial court’s determinations under Batson are accorded great deference because they are largely based on credibility.” Birkhead, 57 So.3d at 1229 (¶22). We may only reverse if the circuit court’s decisions under Batson were clearly erroneous. Id. Pulliam declined to rebut the prosecution’s race-neutral explanations for its peremptory strikes. Based on the record before us and our obligation to defer to the circuit court, we do not find that the circuit court erred when it overruled Pulliam’s Batson objections. There is no merit to this issue.

II. “BLACK & MILD” CIGARS

¶ 19. During Officer Glasson’s direct testimony, the prosecution played the video transmissions of Bailey’s “buys” from Pulliam. Officer Glasson testified that he saw Pulliam holding money and a cigar during one of the videos. On cross-examination, Pulliam’s trial attorney attempted to demonstrate that Officer Glasson could not testify for certain that Pulliam was holding money and a cigar. When the prosecution questioned Officer Glasson on redirect, the following exchange occurred:

Q. Based on your training and experience and your observation there, what’s that in the hand of Pinkie Pulliam?
A. It looks like money and a Black & Mild cigar.
Q. What’s a Black & Mild cigar?
A. That’s a cigar that comes in a single pack that you can buy pretty much anywhere that’s got a white tip and [is] approximately four or five inches long, about the size of a pen.
Q. About the size of a pen, cylinder shape?
A. With a white tip.
Q. White tip. Are Black & Mild cigars common based on your training and experience of people who use crack cocaine?
A. They’re common.
BY [PULLIAM’S TRIAL ATTORNEY]: Objection, your Honor.
BY THE COURT: Overruled, if he knows.
A. In my experience, they’re common with people who use narcotics.

¶ 20. The prosecution called Officer Erby after Officer Glasson testified. After Officer Erby testified on direct examination, the circuit court announced that the jury would be excused for its afternoon recess. However, the circuit court also made the following announcement:

I have another matter before the jury. Ladies and gentlemen, earlier, Officer Glasson was testifying and a question was asked concerning what appeared to be a cigar in the hands of Mr. Pulliam. An objection was made by counsel for the defendant prior to [Officer] Glasson giving his opinion that it was customary for drug dealers to use that type of cigar, if, in fact, it was one.
I have reconsidered my ruling and the Court is sustaining the objection and I am directing you to disregard the question and the answer in regard to drug dealers having a propensity to use a certain type of cigar. Do you understand what I’m telling you?

The record reflects that the jury panel “nod[ded] affirmatively.” The circuit court then asked, “Is there anyone who will not abide by my instructions in this regard? I would like to see your hand[.]” According to the transcript, there was no response. Finally, the circuit court stated:

I take it then all of you will follow my instructions in this matter. Also I want you to understand if you believe that Mr. Pulliam was holding a cigar, that is not evidence that he was dealing in drugs nor that he had a propensity to deal in drugs. Do you understand what I’m telling you?

Again, the transcript indicates that the jury panel nodded affirmatively.

¶ 21. Pulliam argues that the circuit court erred when it overruled his unspecified objection to Officer Glasson’s testimony. Pulliam further argues that the circuit court’s subsequent instructions were insufficient to cure its earlier error. According to Pulliam, he is entitled to a new trial based on the circuit court’s error. We are mindful the circuit judge “enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the [appellate court] will not reverse this ruling.” Shaw v. State, 915 So.2d 442, 445 (¶ 8) (Miss.2005).

¶ 22. We do not find that the circuit court committed reversible error. ‘Where no serious and irreparable damage was engendered by an improper remark, a curative instruction is deemed sufficient to remove the taint from the minds of the jurors.” Clark v. State, 40 So.3d 531, 539 (¶ 16) (Miss.2010). “Juries are presumed to follow the instructions given to them by the court.” Id. All members of the jury indicated that they would disregard Officer Glasson’s testimony that it was common for drug users to smoke Black & Mild cigars. Additionally, Pulliam was charged with selling drugs rather than possessing or using drugs. Whatever minimal prejudice Officer Glasson’s testimony caused was mitigated by the circuit court’s curative instruction. We find no merit to this issue.

III. SUFFICIENCY OF THE EVIDENCE

¶ 23. As our Mississippi Supreme Court has stated:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for [a] directed verdict or for [a] judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] 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.... [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. Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.

Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (internal citations and quotations omitted). However, this Court will determine that there was sufficient evidence to sustain the jury’s verdict if the evidence was “of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense[.]” Id. (internal citations and quotations omitted).

¶ 24. The law-enforcement officers testified that prior to both sales, they had searched Bailey and the vehicles he was driving. Bailey was then outfitted with surveillance equipment. The law-enforcement officers gave Bailey money to buy cocaine. Bailey did not have cocaine before he went and met with Pulliam. When Bailey returned to the law-enforcement officers, he had cocaine but none of the money he had received. Bailey testified that he bought cocaine from Pulliam twice. Alicia Waldrop, a forensic scientist, confirmed that the substances were cocaine. Although the surveillance equipment did not capture every spoken word during the brief interactions between Bailey and Pulliam, the equipment tended to corroborate Bailey’s testimony that he and Pulliam exchanged money for cocaine. The jury heard testimony that Bailey had financial and liberty interests in acting as a confidential informant. Be that as it may, the jury is the sole judge of the credibility of witnesses, and “the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict.” Hollins v. State, 799 So.2d 118, 122 (¶ 10) (Miss.Ct.App.2001). The prosecution was not obligated to present evidence that Pulliam was guilty beyond a shadow of a doubt. There was sufficient evidence to support the jury’s conclusion that Pulliam was guilty of selling cocaine to Bailey on two different occasions. Consequently, we find no merit to this issue.

IV. WEIGHT OF THE EVIDENCE

¶ 25. We are mindful that as we review the circuit court’s decision to deny a motion for a new trial, 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, 895 So.2d at 844 (¶ 18). The supreme court has further instructed that when reviewing a trial court’s decision to deny a motion for a new trial:

The motion ... 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 in which the evidence preponderates heavily against the verdict. However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the ground[ ] 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. Rather, ... the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Id. (footnote and internal citations and quotations omitted).

¶ 26. For the reasons expressed in our analysis of the sufficiency of the evidence, we do not find that it would sanction an unconscionable injustice to allow Pulliam’s convictions to stand. Viewed in the light most favorable to the jury’s verdicts, we do not find that the verdicts were contrary to the overwhelming weight of the evidence. It follows that we find no merit to this issue.

¶ 27. THE JUDGMENT OF THE UNION COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SALE OF COCAINE, AND SENTENCE OF THIRTY YEARS, WITH FIVE YEARS SUSPENDED AND TWENTY-FIVE YEARS TO SERVE; AND COUNT II, SALE OF COCAINE, AND SENTENCE OF THIRTY YEARS, WITH FIVE YEARS SUSPENDED AND TWENTY-FIVE YEARS TO SERVE FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION, TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO UNION COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.

      . Law students Joanna Satcher and Tiffany Speegle contributed to Pulliam’s brief under the supervision of Professor Phillip W. Broad-head, director of the Criminal Appeals Clinic at the University of Mississippi School of Law.