two-theory instruction in Mississippi

2018The supreme court has held that "where the case is based on purely circumstantial evidence, that the defendant is entitled to a two-theory instruction, as well as the general circumstantial-evidence instruction." Goff v. State , 14 So.3d 625 , 660 (¶ 151) (Miss. 2009).

2017The trial court is allowed to “refuse a two-theory instruction if it has granted a (general) circumstantial evidence instruction.” Id. (emphasis in original); see also Goff v. State, 14 So.3d 625, 662 (Miss.2009) (quoting Kitchens v. State, 300 So.2d 922, 926 (Miss. 1974)) (“ ‘In a case based entirely on circumstantial evidence, if an instruction is allowed that the evidence must exclude every reasonable theory" other than that of guilt, that is held to embody the essentials of the two-theory instruction, and refusal of the latter is not reversible error.’”). ¶ 41.

2009See Lynch v. State, 877 So.2d 1254, 1265 (Miss.2004) quoting State v. Rogers, 847 So.2d 858, 863 (Miss.2003) (For purposes of granting a two-theory instruction, “[a] circumstantial evidence case.... is one in which there is neither an eyewitness nor a confession to the crime.”).

2009See Lynch v. State, 877 So.2d 1254, 1265 (Miss.2004) quoting State v. Rogers, 847 So.2d 858, 863 (Miss.2003) (For purposes of granting a two-theory instruction, "[a] circumstantial evidence case.... is one in which there is neither an eyewitness nor a confession to the crime.").

2010Brown v. State, 961 So.2d 720, 728 (¶ 18) (Miss.Ct.App.2007). “[T]he court must grant a jury instruction that every reasonable hypothesis other than that of guilt must be excluded in order to convict.” Jones v. State, 797 So.2d 922, 928 (¶ 26) (Miss.2001).- However, our trial courts are not required to grant a two-theory instruction when its substance is covered by other instructions or where there is direct evidence.

2009In Jones v. State, 797 So.2d 922 (Miss.2001), this Court reversed and remanded for a new trial the capital-murder conviction of Kenneth Earl Jones for failure to give the two-theory instruction where the evidence was wholly circumstantial.

2021“To receive the two-theory instruction, the evidence must be purely circumstantial and two reasonable hypotheses or theories arising out of the evidence must be presented to the jury.” Johnson v. State, 235 So. 3d 1404, 1412 (¶24) (Miss. 2017). ¶43.

2020Ct. App. 2018); see also Johnson, 235 So. 3d at 1413 (¶27) (A two-theory instruction “need be considered only on a case-by-case basis when the jury is presented two reasonable hypotheses or theories, and the evidence is wholly circumstantial.”).

2017"A two-theory instruction instructs the jury what to do when the ‘record supports two or more hypotheses of the crime committed’ and all the evidence of the crime is circumstantial.” McI nnis v. State, 61 So.3d 872, 875 (Miss. 2011).

2013This is “a two-theory instruction, which is a specific type of circumstantial-evidence instruction.” McInnis v. State, 61 So.3d 872, 875 (¶ 11) (Miss.2011).

2009See also Parker v. State, 606 So.2d 1132, 1142 (Miss.1992) (“Because the trial judge refused to grant a two theory instruction offered by the defense in this case, the trial judge abused his discretion and this case must be remanded.”); Henderson v. State, 453 So.2d 708, 710 (Miss.1984) (“[Tjhis case should be remanded for a new trial because jury instructions required in a circumstantial evidence case were refused.”); Nester v. State, 254 Miss. 25, 29 , 179 So.2d 565, 566 (1965) (case reversed and remanded, as “[t]he evidence ... was so circumstantial as to require the giving of the two-theor

2009See also Parker v. State, 606 So.2d 1132, 1142 (Miss.1992) ("Because the trial judge refused to grant a two theory instruction offered by the defense in this case, the trial judge abused his discretion and this case must be remanded."); Henderson v. State, 453 So.2d 708, 710 (Miss.1984) ("[T]his case should be remanded for a new trial because jury instructions required in a circumstantial evidence case were refused."); Nester v. State, 254 Miss. 25, 29 , 179 So.2d 565, 566 (1965) (case reversed and remanded, as "[t]he evidence... was so circumstantial as to require the giving of the two-theory

2017The trial court is allowed to “refuse a two-theory instruction if it has granted a (general) circumstantial evidence instruction.” Id. (emphasis in original); see also Goff v. State, 14 So.3d 625, 662 (Miss.2009) (quoting Kitchens v. State, 300 So.2d 922, 926 (Miss. 1974)) (“ ‘In a case based entirely on circumstantial evidence, if an instruction is allowed that the evidence must exclude every reasonable theory" other than that of guilt, that is held to embody the essentials of the two-theory instruction, and refusal of the latter is not reversible error.’”). ¶ 41.

2008A two- theory instruction instructs the jury what to do when the “record supports two or more hypotheses of the crime committed” and all the evidence of the crime is circumstantial.11 This court recently has held that a trial court may refuse a two-theory instruction if it has granted a (general) circumstantial-evidence instruction.12 A circumstantial-evidence instruction provides that the State must prove the defendant guilty beyond a reasonable doubt and to the exclusion of all reasonable hypotheses consistent with innocence.13 In this case, 9 Jones v. State, 797 So. 2d 922, 927 (Miss. 2001)

2017The trial court is allowed to “refuse a two-theory instruction if it has granted a (general) circumstantial evidence instruction.” Id. (emphasis in original); see also Goff v. State, 14 So.3d 625, 662 (Miss.2009) (quoting Kitchens v. State, 300 So.2d 922, 926 (Miss. 1974)) (“ ‘In a case based entirely on circumstantial evidence, if an instruction is allowed that the evidence must exclude every reasonable theory" other than that of guilt, that is held to embody the essentials of the two-theory instruction, and refusal of the latter is not reversible error.’”). ¶ 41.

2015In 2009, the Mississippi Supreme Court addressed this issue of when failing to give a two-theory instruction would be considered reversible error and held that “[i]n a case based entirely on circumstantial evidence, if an instruction is allowed that the evidence must exclude every reasonable theory other than that of guilt, that is held to embody the essentials of the two-theory instruction^] refusal of the latter is not reversible error.” Goff v. State, 14 So.3d 625, 662-63 (¶ 162) (Miss.2009) (quoting Kitchens v. State, 300 So.2d 922 , *1209 926 (Miss.1974)).

2020“A two-theory instruction provides that when a jury has considered facts and circumstances along with all other evidence, and every reasonable theory of innocence has been excluded, the jury must resolve the case in favor of the defendant.” Evans v. State, 119 So. 3d 1084, 1086 (¶10) (Miss.

2020“A two-theory instruction provides that when a jury has considered facts and circumstances along with all other evidence, and every reasonable theory of innocence has been excluded, the jury must resolve the case in favor of the defendant.” Evans v. State, 119 So. 3d 1084, 1086 (¶10) (Miss.

2008Earlier this year, this Court addressed a similar case, and, speaking for a unanimous court, Justice Kitchens again articulated a rule for cases in which a circumstantial evidence instruction is warranted when requested by the defendant: “While evidence does not always fall neatly into one category, examples of direct evidence include an admission or confession by the defendant to ‘a significant element of the offense,’ or eyewitness testimony to the ‘gravamen of the offense’ charged.” 17 The term “gravamen” is defined as the “substantial point or essence of a claim, grievance, or complaint.”

2008Earlier this year, this Court addressed a similar case, and, speaking for a unanimous court, Justice Kitchens again articulated a rule for cases in which a circumstantial evidence instruction is warranted when requested by the defendant: “While evidence does not always fall neatly into one category, examples of direct evidence include an admission or confession by the defendant to ‘a significant element of the offense,’ or eyewitness testimony to the ‘gravamen of the offense’ charged.” 17 The term “gravamen” is defined as the “substantial point or essence of a claim, grievance, or complaint.”

2004However, in Taylor v. State, 672 So.2d 1246, 1270 (Miss.1996), we held that an admission as to an important element of the alleged crime obviates the need for a circumstantial evidence instruction.

2004However, in Taylor v. State, 672 So.2d 1246, 1270 (Miss.1996), we held that an admission as to an important element of the alleged crime obviates the need for a circumstantial evidence instruction.

2004Id. (quoting Keys v. State, 478 So.2d 266, 268 (Miss.1985)). .For purposes of , grants ing a two-theory instruction, “[a] circumstantial evidence case ... -is one in .which there is neither, an eyewitness nor a confession to the crime.” Id. at 863 (citing Mangum v. State, 762 So.2d 337, 344 (Miss.2000)).

2004For purposes of granting a two-theory instruction, "[a] circumstantial evidence case ... is one in which there is neither an eyewitness nor a confession to the crime." Id. at 863 (citing Mangum v. State, 762 So.2d 337, 344 (Miss.2000)).

2015Moise argues that he “should have been entitled to a two-theory instruction, as well as the general circumstantial-evidence instruction.” In support of his argument both at trial and in his brief, Moise cites Henderson v. State, 453 So.2d 708 (Miss.1984), which held that a trial court had erred in refusing to give both the general circumstantial-evidence instruction and the “two-theory” instruction.

2009See also Parker v. State, 606 So.2d 1132, 1142 (Miss.1992) (“Because the trial judge refused to grant a two theory instruction offered by the defense in this case, the trial judge abused his discretion and this case must be remanded.”); Henderson v. State, 453 So.2d 708, 710 (Miss.1984) (“[Tjhis case should be remanded for a new trial because jury instructions required in a circumstantial evidence case were refused.”); Nester v. State, 254 Miss. 25, 29 , 179 So.2d 565, 566 (1965) (case reversed and remanded, as “[t]he evidence ... was so circumstantial as to require the giving of the two-theor

2009See Lynch v. State, 877 So.2d 1254, 1265 (Miss.2004) quoting State v. Rogers, 847 So.2d 858, 863 (Miss.2003) (For purposes of granting a two-theory instruction, “[a] circumstantial evidence case.... is one in which there is neither an eyewitness nor a confession to the crime.”).

2009See Lynch v. State, 877 So.2d 1254, 1265 (Miss.2004) quoting State v. Rogers, 847 So.2d 858, 863 (Miss.2003) (For purposes of granting a two-theory instruction, "[a] circumstantial evidence case.... is one in which there is neither an eyewitness nor a confession to the crime.").

2020Shelton, 214 So. 3d at 258 (¶40).

2020Id. at (¶41).

2009See also Parker v. State, 606 So.2d 1132, 1142 (Miss.1992) (“Because the trial judge refused to grant a two theory instruction offered by the defense in this case, the trial judge abused his discretion and this case must be remanded.”); Henderson v. State, 453 So.2d 708, 710 (Miss.1984) (“[Tjhis case should be remanded for a new trial because jury instructions required in a circumstantial evidence case were refused.”); Nester v. State, 254 Miss. 25, 29 , 179 So.2d 565, 566 (1965) (case reversed and remanded, as “[t]he evidence ... was so circumstantial as to require the giving of the two-theor

2009See also Parker v. State, 606 So.2d 1132, 1142 (Miss.1992) (“Because the trial judge refused to grant a two theory instruction offered by the defense in this case, the trial judge abused his discretion and this case must be remanded.”); Henderson v. State, 453 So.2d 708, 710 (Miss.1984) (“[Tjhis case should be remanded for a new trial because jury instructions required in a circumstantial evidence case were refused.”); Nester v. State, 254 Miss. 25, 29 , 179 So.2d 565, 566 (1965) (case reversed and remanded, as “[t]he evidence ... was so circumstantial as to require the giving of the two-theor

2009See also Jones v. State, 183 Miss. 408 , 184 So. 810 (1938) (determining that the two-theory instruction, when correctly drawn, is not applicable to cases resting on direct testimony). ¶ 156.

2009See also Jones v. State, 183 Miss. 408 , 184 So. 810 (1938) (determining that the two-theory instruction, when correctly drawn, is not applicable to cases resting on direct testimony). ¶ 156.

2009Yarbrough, 202 Miss. 820, 830 , 32 So.2d 436, 440 (1947) (emphasis added).

2009Yarbrough, 202 Miss. 820, 830 , 32 So.2d 436, 440 (1947) (emphasis added).

2009Yarbrough, nevertheless left the two-theory instruction (if drawn correctly) in place and affirmed the trial court’s denial of the instruction on the basis that the case did not rest entirely upon circumstantial evidence and that the defendant had been granted the general circumstantial-evidence instruction, “to the exclusion of every reasonable hypothesis.” Id.; see also Lott v. State, 204 Miss. 610 , 37 So.2d 782 (1948) (affirming the trial court’s denial of a requested two-theory instruction in Thompson phraseology). ¶ 157.

2009Yarbrough, nevertheless left the two-theory instruction (if drawn correctly) in place and affirmed the trial court’s denial of the instruction on the basis that the case did not rest entirely upon circumstantial evidence and that the defendant had been granted the general circumstantial-evidence instruction, “to the exclusion of every reasonable hypothesis.” Id.; see also Lott v. State, 204 Miss. 610 , 37 So.2d 782 (1948) (affirming the trial court’s denial of a requested two-theory instruction in Thompson phraseology). ¶ 157.

2009Fisher v. State, 150 Miss. 206, 227-28 , 116 So. 746, 750-51 (1928) (emphasis added)(citing Runn els, Roux, Saucier, Wiley, and Brady); cf. Williams v. State, 163 Miss. 475, 482 , 142 So. 471, 472 (1932) (without commenting on Thompson, holding that our trial courts are not required to give a two-theory instruction when its substance is covered by other instructions). ¶ 155.

2009Fisher v. State, 150 Miss. 206, 227-28 , 116 So. 746, 750-51 (1928) (emphasis added)(citing Runn els, Roux, Saucier, Wiley, and Brady); cf. Williams v. State, 163 Miss. 475, 482 , 142 So. 471, 472 (1932) (without commenting on Thompson, holding that our trial courts are not required to give a two-theory instruction when its substance is covered by other instructions). ¶ 155.

2009Fisher v. State, 150 Miss. 206, 227-28 , 116 So. 746, 750-51 (1928) (emphasis added)(citing Runn els, Roux, Saucier, Wiley, and Brady); cf. Williams v. State, 163 Miss. 475, 482 , 142 So. 471, 472 (1932) (without commenting on Thompson, holding that our trial courts are not required to give a two-theory instruction when its substance is covered by other instructions). ¶ 155.

2009Fisher v. State, 150 Miss. 206, 227-28 , 116 So. 746, 750-51 (1928) (emphasis added)(citing Runn els, Roux, Saucier, Wiley, and Brady); cf. Williams v. State, 163 Miss. 475, 482 , 142 So. 471, 472 (1932) (without commenting on Thompson, holding that our trial courts are not required to give a two-theory instruction when its substance is covered by other instructions). ¶ 155.

2009In Simmons v. State, 208 Miss. 523 , 44 So.2d 857, 858-59 (1950), we affirmed the trial court’s denial of the two-theory instruction, on a finding that the case was not circumstantial.

2009In Simmons v. State, 208 Miss. 523 , 44 So.2d 857, 858-59 (1950), we affirmed the trial court’s denial of the two-theory instruction, on a finding that the case was not circumstantial.

2020In Johnson v. State, 999 So. 2d 360, 366 (¶27) (Miss. 2008), the defendant asserted a claim of ineffective assistance of counsel for failure to ask for a circumstantial-evidence instruction, arguing that the evidence in the case was completely circumstantial because there were no eyewitnesses and no confession.

2017We review the refusal “of a jury instruction under an abuse-of-discretion standard.” Burleson v. State, 166 So.3d 499, 509 (Miss. 2015) (quoting McInnis v. State, 61 So.3d 872, 875 (Miss. 2011)).

2013See Pitts v. State, 241 So.2d 668, 670 (Miss.1970) (citation omitted). ¶ 11.

2010Brown v. State, 961 So.2d 720, 728 (¶ 18) (Miss.Ct.App.2007). “[T]he court must grant a jury instruction that every reasonable hypothesis other than that of guilt must be excluded in order to convict.” Jones v. State, 797 So.2d 922, 928 (¶ 26) (Miss.2001).- However, our trial courts are not required to grant a two-theory instruction when its substance is covered by other instructions or where there is direct evidence.

2010Brown v. State, 961 So.2d 720, 728 (¶ 18) (Miss.Ct.App.2007). “[T]he court must grant a jury instruction that every reasonable hypothesis other than that of guilt must be excluded in order to convict.” Jones v. State, 797 So.2d 922, 928 (¶ 26) (Miss.2001).- However, our trial courts are not required to grant a two-theory instruction when its substance is covered by other instructions or where there is direct evidence.

2009See, e.g., Gibson v. State, 91 Ala. 64 , 9 So. 171 (1891) (A charge which instructs the jury that, if the evidence is susceptible of two reasonable constructions, one of which is consistent with the defendant's innocence, it is their duty to adopt that construction, is calculated to' confuse and mislead, andl is properly refused.) .