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IN THE COURT OF APPEALS 12/17/96 OF THE STATE OF MISSISSIPPI
NO. 94-KA-00076 COA DARILE LEE JOHNSON a/k/a RONNIE THOMAS APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. EUGENE BOGEN COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CHERYL C. GRIFFIN ATTORNEYS FOR APPELLEE: OFFICE OF ATTORNEY GENERAL BY: DEWITT ALLRED ASSISTANT DISTRICT ATTORNEY: JOYCE I. CHILES NATURE OF THE CASE: CRIMINAL TRIAL COURT DISPOSITION: CONVICTED OF CONSPIRACY TO COMMIT BURGLARY AND BURGLARY, SENTENCED AS HABITUAL OFFENDER TO 5 AND 7 YEARS RESPECTIVELY, TO RUN CONSECUTIVELY AND WITHOUT PAROLE

BEFORE THOMAS, P.J., BARBER, McMILLIN, AND SOUTHWICK, JJ.

SOUTHWICK, J., FOR THE COURT:

Darile Johnson was convicted in Washington County Circuit Court of conspiracy to commit burglary and burglary as a habitual offender. He received a five year and a seven year sentence, to be served consecutively and without the possibility of parole. Johnson appeals arguing that the verdict was against the overwhelming weight of the evidence, that the jury was not properly instructed, and that he was denied a fair trial due to the cumulative effect of the errors. Finding these arguments without merit, we affirm. FACTS Calvin Gales often slept inside of the T & G game room, an establishment in Greenville which Gales managed. He slept there because of frequent burglaries occurring in that area. Gales hoped that if criminals found out he was sleeping in the game room, they would not attempt to burglarize it. Unaware that Gales was inside the game room, Johnson and two teenage boys went to the game room to burglarize it on May 13, 1993 at about 5:00 a.m. Gales testified that he had gotten up to go to the restroom when he heard noises as if someone was breaking into the building. As he headed to the telephone to call the police, Johnson and one of the other boys had already opened the door to the game room. Johnson was holding a tire iron. Upon seeing Gales, the boys started backing out of the door. As the boys tried to run, Gales shot at them. One of the bullets struck Johnson, who was arrested later that day at a hospital in Cleveland. Gales positively identified Johnson as the burglar who had come in the business carrying the tire iron. There was dispute as to whether Johnson ever entered the building, but there was testimony he opened the door. DISCUSSION 1. Overwhelming Weight of Evidence Johnson argues that because there were inconsistencies in testimonies at trial concerning whether or not he entered the game room, the state failed to prove every element of burglary, namely "entering." He contends, therefore, that the most he could have been convicted of is attempted burglary and that because attempt to commit a crime is an offense separate from the completed offense, the court erred in overruling his motion for directed verdict because he was indicted for burglary and not attempt. However, Section 99-19-5 reads: On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose.

Miss. Code Ann.

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