       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2013-KA-01384-COA

QUINCY FOX A/K/A QUINCY MONTRAY FOX                                     APPELLANT

v.

STATE OF MISSISSIPPI                                                      APPELLEE


DATE OF JUDGMENT:                       08/08/2013
TRIAL JUDGE:                            HON. LESTER F. WILLIAMSON JR.
COURT FROM WHICH APPEALED:              LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                 OFFICE OF STATE PUBLIC DEFENDER
                                        BY: BENJAMIN ALLEN SUBER
ATTORNEY FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                        BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                      BILBO MITCHELL
NATURE OF THE CASE:                     CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                CONVICTED OF ONE COUNT OF ARMED
                                        CARJACKING, TWO COUNTS OF
                                        KIDNAPPING, AND ONE COUNT OF
                                        ARMED ROBBERY, AND SENTENCED, AS
                                        A HABITUAL OFFENDER, TO LIFE
                                        IMPRISONMENT IN THE CUSTODY OF
                                        THE MISSISSIPPI DEPARTMENT OF
                                        CORRECTIONS, ON EACH COUNT, WITH
                                        ALL LIFE SENTENCES TO RUN
                                        CONCURRENTLY TO ONE ANOTHER,
                                        BUT CONSECUTIVELY TO ANY
                                        PREVIOUSLY IMPOSED SENTENCES
DISPOSITION:                            AFFIRMED - 11/04/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., ROBERTS AND CARLTON, JJ.

      ROBERTS, J., FOR THE COURT:

¶1.   Following his trial in the Lauderdale County Circuit Court, a jury convicted Quincy
Fox of two counts of kidnapping, one count of armed carjacking, and one count of armed

robbery. Fox was sentenced, as an habitual offender, to life imprisonment in the custody of

the Mississippi Department of Corrections (MDOC) for each count, with his sentences to run

concurrently to one another. Fox initially filed a motion for a new trial, which the circuit

court denied. Fox then filed a notice of appeal. However, over two weeks after filing a

notice of appeal, Fox filed a second motion for a new trial with the circuit court. In it, he

alleged that there was newly discovered evidence that Jessie Jones, a witness for the State

and accomplice to the crimes, received a more lenient sentence than what he testified to at

trial. The circuit court denied Fox’s second motion for a new trial, and Fox filed the present

appeal. He asks this Court to determine whether the circuit court erred in denying his second

motion for a new trial and whether the circuit court erred in allowing the State to introduce

evidence of Fox’s other crimes. Finding no error, we affirm.

                           FACTS AND PROCEDURAL HISTORY

¶2.      On August 2, 2012, Fox and his codefendant, Jones, were indicted jointly for the

armed carjacking of Robin Rosenbaum, the kidnapping of Rosenbaum and Amanda Davis,

and the armed robbery of Davis. Fox and Jones were also individually indicted, in counts

five and six, for felon in possession of a firearm.1 Fox was also indicted as a habitual

offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2007), which made

him eligible for a life sentence if he was convicted of any of the charges in his indictment.2


         1
             While Fox and Jones were co-indictees, only Fox’s trial and present appeal are at
issue.
         2
       Fox had previous convictions in Lauderdale County Circuit Court for armed robbery
and simple robbery occurring at different times and involving different victims. He had

                                                2
Fox elected to go to trial, and his trial was held in the circuit court on May 28-30, 2013. At

the beginning of the first day of his trial, the State moved for a nolle prosequi on the count

of felon in possession of a firearm, and the circuit court entered an order granting the motion.

Also on the same day, the circuit court entered an agreed order granting Fox’s motion in

limine to exclude any reference, in the jury’s presence, to Fox’s prior convictions or pending

felony charges.

¶3.    The State called Davis to testify first.       According to her testimony, she and

Rosenbaum were nurses who were teaching a class for the Rush Hospital Education

Department on the night of January 10, 2012. As they were leaving the facility after 11 p.m.,

they stood near Rosenbaum’s vehicle talking. Davis testified “[t]he next thing that happened

was somebody came behind me, and there was a gun in . . . [Rosenbaum’s] face.” Davis

explained that there were two men, one taller than the other, wearing blue jeans and hoodies,

with the taller one holding the gun. Davis never saw any of the men’s facial features besides

their eyes, because the hoodies covered their faces. Davis and Rosenbaum gave the men

their purses and keys, because they wanted to avoid getting in the car with the men. Davis

and Rosenbaum did not have any money in their purses, so Davis told the men she would get

money from the ATM if they would let them leave.              Davis and Rosenbaum got in

Rosenbaum’s car with the men after the gun was again pointed in their faces. Davis said that

she was afraid the men would shoot them if they did not get in the vehicle. The men, with

the shorter man driving Rosenbaum’s car, drove to a bank where Davis handed the taller



served over five years in custody for each. On January 10, 2012, Fox was on a suspended
sentence and probation for these prior violent felonies.

                                               3
man, who was sitting with her in the back seat, her debit card and her PIN number. The taller

man then handed the other man the gun, while he got out of the car to use the ATM. He was

unsuccessful in withdrawing money, so he went back to get Davis out of the car too. Davis

was able to withdraw $500, which was the maximum she could withdraw from the ATM per

day. The bank’s surveillance video captured images as the withdrawal occurred. Davis

further testified that “[t]he guy in the back seat with me was the one running the show.”

After Davis withdrew the money, the two men took the money, and they stood outside of the

car talking to one another while Davis and Rosenbaum were in the car. Davis said, “I looked

down. [Rosenbaum] said something to me, and when I looked back, they were gone.” In

addition to the $500, the men also took Davis’s cell phone and keys. Davis and Rosenbaum

walked to a nearby gas station, where they were able to use another person’s cell phone to

call the police.

¶4.    Rosenbaum also testified and corroborated much of Davis’s testimony. She added

that when the women refused to get into the car with the men, the taller man with the gun,

“racked that gun and put it in my face and told me B----, get in the car or I’ll shoot you.”

And it was only at that point that the women agreed to get into the car. Additionally, both

Rosenbaum and Davis identified a gun as one that looked like the one the taller man was

holding at the time of crimes. Neither could definitively say it was the same. Rosenbaum

also testified that after Davis gave them $500 from the ATM, the men talked and then told

the women they could leave, which they did because the men still had the keys to the car.

According to her testimony, both men were wearing ski masks with the hoodies pulled tight

around their faces, and she was unable to see their faces. The taller man with the gun was


                                             4
wearing a dark-colored ski mask, and the other man was wearing a tan-colored ski mask.

¶5.    Jones testified next for the State. According to his testimony, he and Fox were in the

Family Dollar store parking lot a week later, on the evening of January 17, 2012, when

Officer Patrick Gale of the Meridian Police Department, who testified to these events later

at trial, pulled in the parking lot to talk with them. Officer Gale testified that when he pulled

in to the parking lot, one of the men, later identified as Fox, dropped something to the

ground. Officer Gale frisked Jones and Fox, and he discovered a gun in Fox’s coat pocket.

At that point, both Jones and Fox ran from Officer Gale. Jones was apprehended, but Fox

managed to escape. Fox was later apprehended by officers at an address given to them by

Jones. Fox was the current boyfriend of Jones’s girlfriend’s daughter, whom Jones often

referred to as his stepdaughter. Officers also questioned Jones about the incident that

occurred on January 10, 2012, and Jones admitted that he and Fox were the ones responsible

for the crimes. His testimony regarding the events that night were that he and Fox were

walking when Fox saw Davis and Rosenbaum. Fox told Jones, “there [are] two ladies over

there, I got to get them.” They put on the ski masks and approached the women. Jones

testified that Fox had the gun and immediately told the women to get into the car, calling one

of them a “B----.” Jones corroborated Davis’s and Rosenbaum’s testimony that they were

taken to an ATM where Fox got out of the vehicle to get money from the ATM, but was

unable to do so without Davis’s assistance. Jones testified that once Davis got the money

from the ATM, Fox took the money and Davis’s cell phone. Jones also positively identified

the gun Officer Gale recovered from Fox as the gun that was used on the night of January 10,

2012, for the armed robbery, armed carjacking, and kidnappings.


                                               5
¶6.    Jones also informed the jury that his testimony was the truth and was consistent with

the version of events he told police officers, but he was offered a deal from the State if he

testified against Fox. He explained that he was offered, as part of a plea deal, forty years in

the custody of the MDOC, with twenty years suspended. He believed he would serve twenty

years with the first ten being served day-for-day, and then he believed he would be eligible

for earned-time release on the other half. Additionally, he would be placed on five years of

probation. On cross-examination, Jones acknowledged that he was a previously convicted

felon and would receive life sentences if he went to trial and was convicted of any of the

charges stemming from the crimes of January 10, 2012. He further acknowledged that part

of his plea deal required that he testify truthfully and consistently with his previous

statements or he would lose his plea deal. However, he denied that this was the reason he

testified the way he did. Jones was also cross-examined on letters purportedly written by him

while he was in jail; however, he denied ever writing the letters.

¶7.    On redirect examination by the State, Jones was asked why Fox was the first name

that came to his head when he was being interrogated by the police. Jones responded:

“Because when we got arrested, Detective Manning [(sic)] had brung [(sic)] his name up.

Detective Manning said he [(Fox)] was on papers for two armed robbery charges.” Fox

immediately requested a bench conference, following which the jury was excused to the jury

room. Fox moved for a mistrial based upon Jones’s statement that Fox was “on papers for

two armed robbery charges,” as it violated the judge’s order on the motion in limine not to

make any reference to Fox’s prior or pending felony charges. The circuit court admonished

Jones to refrain from any reference to Fox’s prior bad acts. The circuit court further noted


                                              6
that it did not believe the testimony was intentional on the part of the State or Jones, and that

Jones “felt like [he] was being responsive. . . . I don’t think the jury thought anything about

it, given the tone of voice that was spoken.” Additionally, in overruling the motion for a

mistrial, the circuit court said: “I don’t think it was prejudicial to the point where a mistrial

is required. However, . . . I will admonish the jury to disregard any reference to any

revocation or any other . . . papers . . . for two armed robberies.” He also gave Fox the option

to decline giving the jury the instruction to disregard if he felt that it would emphasize it

further, which Fox refused. The circuit court directed the jury to “totally disregard any

reference to ‘papers’ as it refers to [Fox].” The jury was polled and unanimously affirmed

that they could disregard the statement.

¶8.    As noted above, Officer Gale also testified for the State. He testified that he received

a call from police dispatch to investigate two suspicious males in the parking lot of the

Family Dollar store on Highway 45. According to him, when he approached the men in the

parking lot on January 17, 2012, he saw Fox drop something. This item was later recovered

by Officer Gale, and it was a ski mask and a “doo-rag.” The 9mm Smith and Wesson gun

Officer Gale recovered from Fox’s coat pocket was introduced and entered into evidence

during his testimony. Following Officer Gale’s testimony, the State rested its case-in-chief,

and Fox moved for a directed verdict, specifically as to the armed-carjacking charge. The

circuit court overruled Fox’s motion for a directed verdict.

¶9.    Fox called his first witness: August Fox, his sister. August testified that on January

10, 2012, she drove Fox to Meridian for him to meet his girlfriend; she was with him the

entire day at their mother’s house; and she also drove him home that same night. When


                                               7
pressed by the State on cross-examination as to why she would be able to remember that day

so clearly as opposed to other days, August stated she remembered that she was off work that

day, spending time with her children, and “whatever me and my children do, I remember

those days.” The State then asked when her next day off after January 10, 2012, was.

August responded it was probably January 15, 2012, but it was just a guess.

¶10.   Fox called several other witnesses, all fellow inmates. Elton Fairley testified that he

was in an adjoining zone to Jones and overheard Jones talking to Kenneth Jordan through a

steel door separating the zones. Fairley testified he overheard Jones tell Jordan that he

committed the crimes with someone named Wayne. Fairley also testified that he saw a letter

Jones passed to Jordan through the side of the door that Jones was going to send an attorney.

However, Fairley further explained that he could not see through the door to know it was

Jones that passed the letter, but he could recognize his voice. Jacoby Pickett testified next.

He stated he did not know Fox, even though they were in the same zone in the jail, but he

knew Jones from outside of jail, and they would talk through the door separating the zones.

According to Pickett, Jones told him he committed a crime that he also blamed on Fox, and

Jones was planning on writing a letter to the State informing it that Fox was not involved.

Next, Fox called Demarkeio Pritchett. Pritchett testified that he knew Fox and Jones, and

that he was in the same zone as Fox. Pritchett said that Jones told him Fox was not with him

at the time of the crimes and was not involved. Pritchett also testified that Jones showed him

a letter he had written to recant his statement that Fox was involved. Pritchett never

personally read any letter Jones sent through the door. On cross-examination, Pritchett

testified that Jones told him he committed the crimes by himself. Lavon Tucker also


                                              8
testified; however, his testimony was that he and Jones talked about his charges, but Jones

never mentioned Fox. Fox voluntarily chose not to testify.

¶11.   The State called Jones on rebuttal. Jones testified that he did not know Fairley,

Pickett, Pritchett, or Tucker. And he said he never had a conversation with any of them and

denied sliding any letter through a door.

¶12.   After hearing all the testimony and evidence presented, the jury deliberated and

returned a verdict finding Fox guilty on all counts. Prior to his sentencing, Fox filed a

motion for a new trial, which the circuit court denied on June 11, 2013. Fox was sentenced

on August 8, 2013, as a habitual offender pursuant to section 99-19-83, to life in the custody

of the MDOC on each of the four counts. Fox’s life sentences were ordered to run

concurrently to one another, but consecutively to previously imposed sentences. The

sentencing orders were filed on August 9, 2013. Fox filed his notice of appeal on August 13,

2013, and the record was designated. Then, on August 29, 2013, Fox filed a second motion

for a new trial. In it, he claimed that Jones’s testimony was instrumental in Fox’s conviction.

Jones testified at trial that his sentence would be forty years, with twenty suspended, ten

years to serve day-for-day, and eligibility for earned-release supervision after that, and Fox

claims the sentence Jones actually received would subject Jones to no more than fifteen years

of initial incarceration.3 Further, Fox claimed he was “never notified that [Jones’s] offer

would change based on how well he testified for the State.” According to the motion, Fox



       3
         Attached to Fox’s second motion was a copy of Jones’s sworn guilty-plea petition
filed on August 15, 2013. In it, Jones offered to plead guilty to armed robbery in an open
or blind plea, with the State recommending a maximum, or “cap,” of fifteen years to initially
serve, but the ultimate sentence would be decided by the circuit court.

                                              9
was not provided a meaningful opportunity to confront Jones; the State committed discovery

violations by failing to inform Fox of Jones’s sentencing change; and Fox was denied his

right to a fair trial. The circuit court summarily denied Fox’s second motion for a new trial

on August 29, 2013.

¶13.   On appeal, Fox raises two issues:

       I.     The [circuit] court erred in [denying Fox’s motion for a mistrial after]
              allowing the [State] to elicit evidence of crimes other than the crimes
              charged in the indictment.

       II.    The [circuit] court erred in denying Fox’s motion for a new trial based
              on the newly[]discovered reduced sentence of his alleged accomplice.

                                        ANALYSIS

       I.     ADMISSION OF EVIDENCE OF OTHER BAD ACTS

¶14.   Fox first argues that the circuit court erred in failing to grant a mistrial when, in

response to the State’s question as to why Fox’s name came up during interrogation, Jones

testified that the police brought up Fox’s name because he was “on papers” for two other

crimes. “Whether to grant a motion for a mistrial is within the sound discretion of the trial

court. The standard of review for denial of a motion for [a] mistrial is abuse of discretion.”

Gunn v. State, 56 So. 3d 568, 571 (¶14) (Miss. 2011) (quoting Caston v. State, 823 So. 2d

473, 492 (¶54) (Miss. 2002)).

¶15.   Prior to trial, the circuit court entered an agreed order granting Fox’s motion in limine

to exclude references to any of Fox’s prior convictions or pending felony charges. The

following dialogue took place during the State’s redirect of Jones:

       STATE:         Now, in response to one of Ms. McNair’s questions[,] she said
                      did you implicate or say that Quincy Fox was with you, and that

                                              10
                      was the first name that came to your head, and you agreed with
                      her?

       JONES:         Yes, ma’am.

       STATE:         Why was that the first name that came to your head?

       JONES:         Because when we got arrested[,] Detective Manning [(sic)] had
                      brung [(sic)] his name up. Detective Manning said he [(Fox)]
                      was on papers for two armed robbery charges.

Immediately, Fox requested a bench conference, the jury was excused, and Fox moved for

a mistrial for the violation of the motion in limine ruling. In denying the motion for a

mistrial, the circuit court stated:

       [W]hat we are dealing with here is somebody [(Jones)] that you have proven
       quite clear has been totally immersed in the criminal justice system since 1990,
       and here we are in 2013. . . . I don’t believe what I heard was an intentional
       thing. I think it was something that he felt like was being responsive. . . . I
       don’t think the jury thought anything about it given the tone of voice that was
       spoken.

       I understand the motion; however, I don’t think it was prejudicial to the point
       where a mistrial is required.

The circuit court instructed the lay witness, Jones, to avoid any other mention of Fox’s prior

convictions or pending felony charges. The circuit court also admonished the jury “to totally

disregard any reference to ‘papers’ as it refers to [Fox].” The jury was polled, and each juror

affirmed he or she could disregard the statement.

¶16.   As we found in Hancock v. State, 964 So. 2d 1167, 1179 (¶27) (Miss. Ct. App. 2007)

(quoting Hobson v. State, 730 So. 2d 20, 24 (¶10) (Miss. 1998), “[w]here the witness refers

briefly to another crime, and the testimony was not purposely elicited by the district attorney

to prove the defendant's character, no reversible error occurs.” A “trial judge should declare



                                              11
a mistrial when a procedural error results in substantial and irreparable prejudice to the

accused.” Pittman v. State, 928 So. 2d 244, 249 (¶11) (Miss. Ct. App. 2006) (citing Gardner

v. State, 792 So. 2d 1000, 1003 (¶5) (Miss. Ct. App. 2001)). “When serious damage does not

result, the judge should admonish the jury to disregard the impropriety.” Id. at (¶12) (citing

Hoops v. State, 681 So. 2d 521, 528 (Miss. 1996)). And “[i]t is presumed that the jury

followed the instruction of the trial judge to disregard the remark.” Id. (citing Dennis v.

State, 555 So. 2d 679, 682-83 (Miss. 1989)).

¶17.   Jones’s singular and brief reference to Fox’s criminal record was not the result of the

State’s attempt to elicit evidence excluded by the motion in limine. The circuit court then

instructed the jury to disregard the statement, which the jury agreed it could and would do.

We do not see that Fox was seriously damaged by the statement, or that some substantial or

irreparable prejudice occurred. Our analysis of the record before us provides no evidence

that the circuit court abused its discretion in denying Fox’s motion for a mistrial.

¶18.   This issue is without merit.

       II.    DENIAL OF FOX’S SECOND MOTION FOR A NEW TRIAL

¶19.   Fox next argues that the circuit court erred in denying his second motion for a new

trial based on the alleged change in Jones’s sentence from what he testified to at trial. Fox

filed his first motion for a new trial on June 10, 2013. The circuit court denied this motion

on June 11, 2013. Fox was then sentenced on August 8, 2013, and he filed his notice of

appeal on August 13, 2013. Fox did not filed his second motion for a new trial until August

29, 2013, which was after the date he filed his notice of appeal. It is well settled that “the

filing of the notice of appeal perfected the appeal and divested the lower court of


                                             12
jurisdiction.” Estes v. State, 782 So. 2d 1244, 1248 (¶2) (Miss. Ct. App. 2000) (citing Martin

v. State, 732 So. 2d 847, 851 (Miss. 1998)). Because the circuit court lacked jurisdiction to

consider Fox’s second motion for a new trial, we also lack jurisdiction to consider the

motion.

¶20. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY
OF CONVICTION OF ONE COUNT OF ARMED CARJACKING, TWO COUNTS
OF KIDNAPPING, AND ONE COUNT OF ARMED ROBBERY AND SENTENCE
AS A HABITUAL OFFENDER OF LIFE IMPRISONMENT ON EACH COUNT,
WITH ALL SENTENCES TO RUN CONCURRENTLY TO ONE ANOTHER AND
CONSECUTIVELY TO PREVIOUSLY IMPOSED SENTENCES, IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

   LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.




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