                           IN THE SUPREME COURT OF MISSISSIPPI

                                        NO. 2004-KA-01463-SCT

WILLIE RUSHING

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                                  12/03/2003
TRIAL JUDGE:                                       HON. JAMES T. KITCHENS, JR.
COURT FROM WHICH APPEALED:                         LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                            CARRIE A. JOURDAN
ATTORNEY FOR APPELLEE:                             OFFICE OF THE ATTORNEY GENERAL
                                                   BY: JOSE BENJAMIN SIMO
DISTRICT ATTORNEY:                                 FORREST ALLGOOD
NATURE OF THE CASE:                                CRIMINAL - FELONY
DISPOSITION:                                       AFFIRMED - 09/22/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




        BEFORE WALLER, P.J., EASLEY AND CARLSON, JJ.

        CARLSON, JUSTICE, FOR THE COURT:

¶1.     Willie Rushing went to trial in Lowndes County Circuit Court on a multi-count

indictment charging him with several acts of prescription forgery.                Following a jury verdict

finding Rushing guilty as to three counts of prescription forgery, the trial court entered

judgments consistent with the verdicts, subsequently sentenced Rushing as a drug recidivist to

three 10-year sentences to be served consecutively, and denied post-trial motions.                Rushing

now appeals to us from the trial court’s denial of his motion for a judgment notwithstanding

the verdicts, or in the alternative, for a new trial. Finding no reversible error, we affirm.
                      FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.     On September 23, 2002, a man walked into Family Pharmacy in Columbus and

presented the on-duty pharmacist, Billy Bailey, with a purported prescription from Dr. Jim

Smith for Larry Somes for OxyContin, 40 milligrams.1                  Bailey would later identify Willie

Rushing as the man who presented this prescription to him. Bailey recognized Rushing’s face

because Rushing had previously been in the pharmacy to have valid prescriptions filled. Bailey

filled this prescription.      Approximately two months later, on November 25, 2002, Rushing

again went to Family Pharmacy in Columbus and presented Bailey with a purported

prescription from Dr. Jim Smith for Larry Somes for OxyContin, 40 milligrams.                     Once again,

the prescription was filled.

¶3.     On February 18, 2003,2 Rushing appeared at the Wal-Mart Pharmacy in Columbus and

presented to the on-duty pharmacist, Van Miles, a purported prescription from Dr. Jim Smith3

for Susan Rushing for Lortab, 7.5 milligrams.4             Rushing had likewise had valid prescriptions

previously filled at Wal-Mart; however, on this date, Miles became suspicious.                There were at


        1
        OxyContin is a very strong narcotic pain reliever similar to morphine. OxyContin contains oxycodone,
thus making it a Schedule II drug. Miss. Code Ann. § 41-29-115(A)(a)(1)(xiv) (Rev. 2001).

        2
         Although the record reveals confusing testimony as to whether the date was February 12, 2003, or
February 18, 2003, the later-to-be proven forged prescription, which was entered into evidence as Exhibit 1,
contains the date February 18, 2003.

        3
         This prescription, like the two prescriptions presented to Billy Bailey, had a heading of “Kemper
Family Medical Clinic” in DeKalb. Miles did not know at the time the identity of the doctor since he could
not read the signature on the prescription, but he later learned that day that the doctor in question was indeed
Dr. Jim Smith of DeKalb.

        4
        Lortab is a pain reliever which contains hydrocodone, thus making it a Schedule II drug. Miss. Code
Ann. § 41-29-115(A)(a)(1)(x) (Rev. 2001).

                                                       2
least two concerns Miles had about this prescription.           As Miles stated at trial, “[t]he refill

looks like it’s been wrote (sic) over and looks like it’s a photocopy underneath it.” Also, when

Miles keyed the doctor’s DEA number into the computer, the DEA number was not valid.                  The

DEA number on the prescription was AS 3465902. Therefore, Miles telephoned the Kemper

Family Medical Clinic in DeKalb; however, the facility was closed.5            Miles knew a pharmacist

in DeKalb and thus telephoned this pharmacist who confirmed that Dr. Jim Smith of DeKalb

would be the doctor associated with Kemper Family Medical Clinic.                   Upon obtaining Dr.

Smith’s telephone number from the DeKalb pharmacist, Miles telephoned Dr. Smith at his

home. Dr. Smith stated that his DEA number was AS 3465982. Miles then pulled from the

file a valid prescription which Rushing had previously brought in to be filled, and it indeed

contained DEA number AS 3465982, but, according to Miles, the “8" could have easily been

mistaken for a “0.” After conducting this inquiry, Miles informed Rushing that he would not

fill the prescription. Rushing then requested Miles to return this prescription he had attempted

to have filled, and Miles refused. When this seemed to not satisfy Rushing, Miles told Rushing

that “I can keep the prescription or we can call the law right here right now and y’all can talk

it out.” Rushing left.

¶4.     Unbeknownst to Rushing, after he left Miles and the Wal-Mart Pharmacy that day,

Miles telephoned the Narcotics Division of the Columbus Police Department to alert law

enforcement     as to Rushing’s suspicious activities.            The Columbus P.D. immediately

        5
           Although Miles testified that this event occurred on a Saturday; neither February 12, 2003, nor
February 18, 2003, fell on a Saturday. However, Miles firmly believed that the first occurrence about which
he testified was on a Saturday, thus the reason for the Kemper Family Medical Clinic being closed.

                                                    3
commenced an investigation of Rushing. Not lacking in persistence, Rushing returned to the

Wal-Mart Pharmacy on March 17, 2003, to get a prescription refilled.               Unfortunately for

Rushing, the ever-vigilant Van Miles was once again the on-duty pharmacist. Miles telephoned

the police and before the police arrived, Rushing left the store and Miles followed him out.

When Miles spotted a police officer, he hollered “there he goes,” pointing to Rushing,

whereupon Rushing was arrested and immediately Mirandized by Sergeant Larry Taylor, a

narcotics officer with the Columbus Police Department.        After being advised of his Miranda

rights,6 Lt. Peavey, who was also there on the scene, then inquired of Rushing as to what mode

of transportation he had used to get to Wal-Mart. Rushing, who was approaching a black vehicle

parked in the handicap zone with the engine running and the windshield wipers on, replied that

a man had driven him to Wal-Mart in a while Monte Carlo. Not being overly impressed with

Rushing’s response, Lt. Peavey ran a tag check on the black vehicle, which resulted in their

learning on the scene that the black car was registered to Susan Rushing, Willie Rushing’s wife,

who was in the car at the time, and who had just herself been released from prison.              Upon

conducting a search incident to Rushing’s arrest, the police found $5,886 in cash and various

pills on Rushing’s person, and upon conducting a search of the black vehicle, the police also

found six blank prescription forms on the back seat. One of the prescription forms contained

hand-writing and was covered with correction fluid to cover the writing. The other five blank

prescription forms appeared to be photocopies of the first.


        6
        Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See Manix v. State, 895
So.2d 167, 180 (Miss. 2005).

                                                   4
¶5.      After Rushing’s arrest, further investigation by law enforcement led Corporal Spence

Wallingford, a Columbus P.D. Narcotics Division officer, to the Family Pharmacy where he

learned from pharmacist Billy Bailey of the prescriptions which were filled for Rushing on

September 23, 2002, and November 25, 2002.         These two prescriptions were retrieved from

Bailey by Corporal Wallingford.

¶6.      On August 11, 2003, the Lowndes County Grand Jury handed down a four-count

indictment against Willie Rushing. The indictment alleged, inter alia, that Rushing, in Lowndes

County, Mississippi, did unlawfully, wilfully, and feloniously, knowingly and intentionally

transfer and deliver a forged prescription to (1) Van Miles on February 18, 2003 – Count 1;

(2) Van Miles on March 17, 2003 – Count 2; Bill Bailey on September 23, 2002 – Count 3;

and, Bill Bailey on November 25, 2002 – Count 4. On the day of trial, November 20, 2003,

Rushing, through counsel, filed a motion to sever counts.      Prior to commencement of voir

dire, the trial judge conferred with counsel regarding pre-trial matters, at which time Rushing’s

counsel informed the trial court of the just-filed motion to sever.      In response, the State,

through the assistant district attorney, informed the trial court and defense counsel, that the

State would not call up Count 2 for trial, but the State did oppose the motion to sever as to

Counts 1, 3 and 4, which the State argued could appropriately be tried together in accordance

with statute, uniform rule and case law.     The trial court denied Rushing’s motion to sever

counts, and also, over Rushing’s objection, the trial court granted the State’s motion to amend

the indictment to charge Rushing as a drug recidivist under Miss. Code Ann. § 41-29-147 (Rev.

2001).

                                               5
¶7.     The case proceeded to trial as to Counts 1, 3 and 4.          In addition to pharmacists Van

Miles and Billy Bailey, and police officers Larry Taylor and Spence Wallingford, the State also

called Dr. Jim Smith, who confirmed that Rushing had been his patient for several years. Dr.

Smith recalled prescribing Lorcet 10/650, a pain pill, for Rushing, and possibly also Lortab

7.5. However when presented with Exhibit No. 1 (the February 18, 2003 prescription), Exhibit

No. 2 (the September 23, 2002 prescription), and Exhibit No. 3 (the November 19, 2002

prescription passed on November 25, 2002), Dr. Smith unequivocally stated that his signature

did not appear on these prescriptions, his DEA number did not appear on these prescriptions,

and he did not write or authorize these prescriptions.

¶8.     In Rushing’s case-in-chief, Wallingford, Taylor, and Miles were called to testify and

Rushing testified in his own behalf.          Rushing basically testified that the pharmacist, Billy

Bailey, simply misidentified him as the person who passed these forged prescriptions to him

because Larry Somes (the “patient” listed on the two prescriptions) was about the same age and

build as Rushing. As to the prescription for Susan Rushing which was presented to Van Miles

on February 18, 2003, Rushing stated that Susan was outside in the car at the time and it was

not unusual for he and Susan to have each other’s prescriptions filled. Rushing stated that if,

on February 18, 2003, he presented a forged prescription to Bailey, it was because he did not

have his reading glasses with him.       Specifically, as to all three prescriptions, Rushing testified:

        Q. Did you knowingly pass a forged prescription for anyone?

        A. Knowingly, I never took one. As you see, I wear glasses, and if I was handed
        one to take in, it could have been a possibility because I wouldn’t know Dr.



                                                    6
          Smith’s wasn’t the same handwriting if I had done that, but I don’t recall doing
          that.

Rushing also admitted, however, that he could not dispute Dr. Smith’s testimony that he (Dr.

Smith) did not write the three prescriptions in question because, in Rushing’s opinion, Dr.

Smith was “a good man.” Rushing explained the large amount of cash found on his person at

the time of his arrest by stating that he bought and sold cars, and he dealt in cash, thus it was

not unusual for him to carry around as much as $25,000 in cash. Rushing also testified that he

did not know anything about the blank prescription forms found in Susan Rushing’s vehicle at

the time of his arrest.      Although Rushing lived in Savannah, Tennessee, he found nothing

unusual in having a physician in DeKalb, Mississippi, and filling prescriptions in Columbus,

Mississippi. In fact, Rushing admitted that on the day he was arrested, he and Susan had driven

from Savannah, Tennessee, to the Wal-Mart Pharmacy in Columbus, Mississippi, to have the

prescription filled.

¶9.       After the State’s rebuttal, the trial judge’s reading of the instructions to the jury, and

closing arguments from counsel, the jury retired to deliberate and in due course returned

verdicts of guilty as to all three counts of prescription forgery.    Although the maximum term

of imprisonment for prescription forgery is five years, since Rushing was charged as a drug

recidivist pursuant to statute, the trial court doubled the term of imprisonment and sentenced

Rushing, inter alia, to serve three 10-year sentences to run consecutively.        See Miss. Code

Ann. § 41-29-147 (Rev. 2001).         After the denial of post-trial motions, Rushing perfected his

appeal.



                                                  7
                                          DISCUSSION

¶10.     Rushing, through counsel, assigns as error the trial court’s denial of his motion to sever

counts, and the trial court’s rulings on certain jury instructions. However, during the pendency

of this appeal, Rushing filed with us a pro se application to proceed in the trial court on a post-

conviction relief (PCR) motion. See Miss. Code Ann. §§ 99-39-1 et seq. (Rev. 2000). In his

PCR motion, Rushing claims that his convictions and sentences are illegal and that he received

ineffective assistance of counsel. Rushing subsequently filed a motion for voluntary dismissal,

without prejudice, correctly acknowledging that his application to proceed in the trial court on

a PCR motion was premature since his case was still pending on direct appeal. See Miss. Code

Ann. §§ 99-39-7, -27 (Rev. 2000). See also Connell v. State, 691 So.2d 1004, 1006 (Miss.

1997).    Thus, by an order previously entered by this Court, Rushing’s motion to dismiss his

PCR motion has been granted. Accordingly, we need not discuss Rushing’s pro se assertions

contained in his PCR motion. Likewise, we note that approximately four months after filing

his application to proceed in the trial court on a PCR motion, Rushing filed with us a document

entitled “Application for Leave to File Pro Se Supplemental Appellant Brief;” however, by

prior order, this application was denied. I. WHETHER THE TRIAL COURT ERRED IN
DENYING RUSHING’S MOTION TO SEVER COUNTS IN THE MULTI-COUNT
INDICTMENT.

¶11.     Rushing asserts that the trial judge improperly denied his motion to sever the counts

in his indictment which had the practical effect of disallowing a separate trial before a different

jury as to each count. Rushing also asserts that this Court should apply a different standard of




                                                 8
review because of a procedural error committed by the trial court in conducting the pre-trial

hearing on the motion to sever.

¶12.    For issues of severance, this Court applies an abuse of discretion standard of review.

Brawner v. State, 872 So.2d 1, 6-7 (Miss. 2004). However, Rushing argues that in his case

today, this Court should apply a de novo standard of review because the trial court improperly

placed the burden on him to go forward at the pre-trial hearing on the motion to sever counts,

even though the State is required at such a hearing to present a prima facie case that the multi-

count indictment meets the requirements of the applicable statute and our case law.

¶13.    Mississippi law allows for both multi-count indictments and multi-offense trials under

certain circumstances.      In trials concerning multi-count indictments, severance is unnecessary

in Mississippi if the acts or transactions are connected together as part of a common scheme

or plan and if the indictment was otherwise proper.         Miss. Code Ann. § 99-7-2 (Rev. 2000)

states in pertinent part:

        (1) Two (2) or more offenses which are triable in the same court may be
        charged in the same indictment with a separate count for each offense if: (a) the
        offenses are based on the same act or transaction; or (b) the offenses are based
        on two (2) or more acts or transactions connected together or constituting parts
        of a common scheme or plan.

        (2) Where two (2) or more offenses are properly charged in separate counts of
        a single indictment, all such charges may be tried in a single proceeding.

The Mississippi Uniform Rules of Circuit and County Court Practice (URCCC) likewise

address multi-count indictments. The provisions of URCCC 7.07 (A.) & (B.) are identical to

the above statutory language. It is no surprise that the State and Rushing disagree as to whether


                                                   9
the multiple counts in the indictment were proper, or whether the circumstances of the

offenses warranted severance of the counts, thus necessitating a separate jury trial for each

count.

¶14.     Corley v. State, 584 So. 2d 769, 772 (Miss. 1991), offers guidance to our trial courts

concerning the appropriate pre-trial procedure to follow when confronted with a motion to

sever offenses in a multi-count indictment.   In a Corley hearing, the State carries the burden

to make out a prima facie case showing the offenses charged are within the language of the

statute. Id. at 772. If the State meets its initial burden, the defendant may thereafter rebut the

State’s case by showing the “offenses were separate and distinct acts or transactions.” Id. In

Corley, this Court laid out three cornerstone considerations for the trial court: “whether the

time period between the occurrences is insignificant, whether the evidence proving each count

would be admissible to prove each of the other counts, and whether the crimes are interwoven.”

Id. By way of a footnote, we also stated that the issue of whether these offenses might be

admissible pursuant to Miss. R. Evid. 404(b) was totally irrelevant to the trial court’s

consideration of a motion to sever offenses in a multi-count indictment.       Id. n.1.   We will

review the trial court’s decision under an abuse of discretion standard if the trial court did in

fact follow this procedure. Id. Turning to today’s case, in relying on Miss. Code Ann. § 99-7-

2(2), the State argued at the pre-trial motion hearing that all three counts could appropriately

be tried together.   While not exactly following the procedural guidelines suggested in Corley,

the trial court nonetheless heard from counsel for the State and Rushing, and in due course



                                               10
denied Rushing’s motion to sever offenses and allowed the trial to proceed to trial on all three

counts.

¶15.      We stated in Corley: “If a trial court follows [the correct] procedure, this Court will

review the trial court’s decision under the abuse of discretion standard giving due deference

to the trial court’s findings.” Id. at 772 (citing McCarty v. State, 554 So.2d 909, 916 (Miss.

1989)). To fully address this issue, we refer to the record of the proceedings when this

outstanding motion to sever counts was brought to the trial court’s attention shortly before

commencement of voir dire on the morning of trial.            The following occurred outside the

presence of the jury venire:

          BY THE COURT: All right. Since we do have a copy of the defendant’s motion
          to sever, we can argue that one first and hear on that one first. Are you ready to
          proceed on your motion, Ms. Jourdan [defense counsel]?

          BY [DEFENSE COUNSEL]: Thank you, your Honor. Your Honor, I want to be
          sure that I’m understanding the State’s position correctly so that I don’t misstate
          anything. I think Ms. Hayes-Ellis [prosecutor] advised me that she would not be
          proceeding on Count 2; is that correct?

          BY [PROSECUTOR]: That’s correct.         Your Honor, today the State intends to
          prosecute on Counts 1, 3, and 4.

          BY THE COURT: All right.

          BY [DEFENSE COUNSEL]: Your Honor, let me begin by saying that I filed a
          fairly brief motion to sever, so I’m going to spend a little bit of time expounding
          on it for the Court. First of all, your Honor....

Rushing asserts that the trial judge placed the burden on him to show why the offenses in the

multi-count indictment should be severed when the trial judge commenced the hearing by

inquiring of defense counsel as to “her position on severance.”         This assertion is incorrect.

                                                 11
A fair reading of the record reveals that all the trial judge did was to ask defense counsel if she

was “ready to proceed” on the motion to sever. The trial judge did not place upon Rushing the

burden of proving why the offenses should be severed.              Rushing, through counsel, chose to

take the lead and argue the motion first to the trial judge. There was no objection lodged by

Rushing’s counsel at the time, and in fact, Rushing’s counsel unhesitatingly commenced her

presentation of the motion when asked by the trial court if she was ready to proceed on the

motion.     A close reading of the record also reveals that the trial judge asked questions of

counsel for both the State and Rushing, and in fact, Rushing got two chances to argue to the

trial judge, with the prosecutor’s argument being sandwiched in between Rushing’s two

arguments. After the presentation by counsel for the State and Rushing, the trial judge issued

a detailed bench ruling on Rushing’s motion to sever, wherein he stated, inter alia:

          The factors the Court must look at when confronted with a severance issue is the
          time period between the offenses, whether the evidence proving each offense
          would be admissible to prove the other counts, and whether the offenses are
          interwoven. Here the State seeks to try Count 1 of an indictment that the
          allegation is this occurred on or about the 18th day of February, 2003; Count 3
          that the allegation is that this occurred on or about the 23rd day of September,
          2002; and Count 4 that it occurred on or about the 25th day of November, 2002.
          You’re talking from the 23rd day of September of 2002 until the 18th of
          February, 2003, essentially about five months. All of these are alleged to have
          occurred within about a five-month time period, the three that the State is
          seeking to try. That is not an overly long time period. It’s not as if this has
          occurred over the course of years. Five months is a relatively short period of
          time.

          The second factor the Court may consider or must consider is whether evidence
          proving each offense would be admissible to prove the other counts. While the
          Court does not know this case, but what I’ve heard from both and what I can tell
          from the indictment is the same doctor is apparently going to be a witness in all
          three counts. One pharmacist is a witness in at least two of the three counts and

                                                    12
        then there is yet another pharmacist who is in Count 1, but the allegation was in
        Count 2 that he was also in that. The State has indicated they are not going to
        proceed on Count 2. It seems to be a fairly small universe of witnesses that will
        be called in this case to try this case.

        Finally, the last factor that the Court looks at is whether the offenses are
        interwoven.     They are the same offense.         They are obtaining controlled
        substances apparently by fraud and it does seem that this would militate, quite
        frankly, in favor of trying these together because it’s not like he’s charged with
        murder that occurred February of 2003 and in 2002 of September he’s charged
        with child abuse or child molestation or rape or something totally different. The
        State has alleged that there is a common scheme or plan. That is something that
        the Court is supposed to look at and that’s what the Mississippi Supreme Court
        has said in Ott versus State, 722 So2d 576. That’s a 1998 Mississippi case. The
        allegation here is that there is some kind of scheme or plan that Mr. Rushing had
        adopted to be able to cash or to distribute these prescriptions. The defendant
        argues that he has separate offenses – some that he was allowed to pass; some
        he did not pass. The Court does not see how trying these together will deprive
        him of those defenses.

The trial court again observed that these three offenses occurred within a five-month period,

and the trial court likewise observed that the evidence concerning each of these three offenses

would involve basically the same witnesses, and that all three offenses were alleged to have

occurred within the city limits of Columbus. In the end, the trial court denied Rushing’s motion

to sever. From our review of the record, we can thus conclude with confidence that the trial

court did not misapply our recommended procedures as discussed in Corley.                Therefore, we

will review the trial court’s decision on Rushing’s motion to sever under an abuse of discretion

standard, affording due deference to the trial court’s findings. Corley, 584 So.2d at 772.

¶16.    In discussing the propriety of the trial court’s denial of Rushing’s motion to sever, we

find that the trial court properly allowed the single trial based on the merits of the arguments

after weighing the three Corley considerations.        First, for a multi-count trial to be proper, the

                                                  13
trial judge must determine that the time period between the occurrences is insignificant.   The

time period involved here is five months. The trial judge found that five months was “not an

overly long time period.”   Rushing argues otherwise, citing numerous cases where this Court

dealt with shorter time periods involving different offenses in multi-count indictments.    See,

e.g., Patrick v. State, 754 So. 2d 1194 (Miss. 2000) (separate counts of burglary, armed

robbery, aggravated assault, and grand larceny occurring within seven hours of each other were

properly tried together); Ott v. State, 722 So. 2d 576 (Miss. 1998) (multi-counts of drug

offenses occurring in one day were properly tried together); McCarty v. State, 554 So. 2d 909

(Miss. 1989) (trial judge abused his discretion by refusing to sever two counts of burglary

committed two days apart and on two different homes); Gray v. State, 549 So. 2d 1316 (Miss.

1989) (eight counts of making harassing phone calls committed on different victims with

different subject matter and occurring two weeks apart were not part of a common scheme or

plan).    Rushing even cites two cases with comparable or longer time periods than the one

involved here. In Eakes v. State, 665 So. 2d 852, 861-62 (Miss. 1995), we found five months

between the first and last counts of sexual crimes insignificant where only one victim was

involved, but also considered that the crimes were the “same type of act.” In Allman v. State,

571 So. 2d 244, 248-49 (Miss. 1990), this Court found a nine-month time span did not justify

severance when the acts of child rape were committed by the same defendant upon the same

victim.




                                              14
¶17.   Rushing attempts to distinguish these cases from the facts in his case by pointing out

that there were common victims in the above-mentioned cases, whereas, in his case, there was

no common victim and thus the five-month time frame becomes more significant. Whether the

victim is common to all crimes has never alone been a factor to determine questions of trials

involving multi-count indictments.    Additionally, the fact that the pharmacy or manufacturer

of the prescription drugs lost no money when these prescriptions were obtained through

forgery is an immaterial consideration here.   Though five months may be too long a period of

time for certain crimes to retain their character as being part of a common scheme or plan, this

is not so in this case. The five-month time frame does not alone warrant severance in this case

when the first two offenses are almost identical and the third offense bears such a strong

resemblance to the first two.   Combined with the evidence of blank prescriptions forms found

at the scene, the five-month span is insufficient to say the offenses were separate and distinct

actions or transactions. While we agree with Rushing that “there is no bright line test as to the

amount of time that is significant or insignificant” when considering motions to sever

counts/offenses, we refuse to attempt to create a bright line test where the law clearly views

the time together with the other factors.   Rushing   also concedes, “The time factor has to be

looked at with regard to the totality of the events.” When reading the Corley factors together

with regard to the totality of the events, the trial judge did not abuse his discretion in finding

that five months was not such a significant amount of time so as to require severance. The first

Corley consideration is met.




                                                15
¶18.   Second, the trial judge must determine if the evidence proving each count would be

admissible to prove each of the other counts. As the State correctly points out, the source of

evidence in this case is limited.         The witnesses consisted of the arresting officer, the

investigating officer, the two pharmacists, and Dr. Smith.        All the witnesses except the two

pharmacists were witnesses for all three counts of the indictment. One pharmacist testified

concerning Count 1, while the other pharmacist testified as to Counts 3 and 4. The total

physical evidence at trial consisted of the blank prescription forms, one valid prescription, the

forged prescriptions given to Miles and Bailey, and various pills found on Rushing at the time

of the arrest.   All of this physical evidence would have been admissible in any single trial of

one of these counts if the offenses had been severed. As this Court pointed out in Ott, the

Mississippi Rules of Evidence allow the admissibility of evidence of other offenses to prove

intent, preparation, and plan. 722 So. 2d at 581. “Evidence of other crimes, wrongs, or acts

is not admissible to prove the character of a person in order to show that he acted in

conformity therewith.    It may, however, be admissible for other purposes such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Miss. R. Evid. 404(b). Without question, the total evidence in this case would have

been admissible in separate trials of each count. The second Corley consideration is met.

¶19.   Finally, the trial judge must find that the crimes are interwoven.           Succinctly stated,

these counts involve too many similar factors when viewed together, to be anything but clearly

linked and part of the same common scheme or plan. The crimes here are clearly interwoven.




                                                 16
See Neal v. State, 451 So.2d 743, 758-59 (Miss. 1984).           The third Corley consideration is

thus met.

¶20.     In Corley, this Court was clear concerning its policy against trying unrelated counts in

a single trial.

         We have been, and remain, unwilling to allow separate and distinct offenses to
         be tried in the same criminal proceeding. We do so in order to avoid potential
         problems of a jury finding a defendant guilty on one unproven count due to proof
         of guilt on another, or convicting a defendant based upon the weight of the
         charged offenses, or upon the cumulative effect of the evidence.

584 So. 2d at 772. This Court remains faithful to the principle that a jury should not find the

defendant guilty of at least one offense, simply because he is charged with so many. However,

this strong policy consideration is not in danger here. The evidence offered at trial by the State

was not to establish that guilt of one offense automatically equals guilt of all of the offenses,

but rather to show a common scheme or plan on Rushing’s part.           Simply put, these offenses

were separate and distinct acts or transactions in this case.

¶21.     For these reasons, we find that the trial court did not abuse its discretion in refusing to

sever the three counts of forged prescription as alleged in Rushing’s indictment.         Therefore,

we find this issue to be without merit.

         II.      WHETHER THE TRIAL COURT ERRED IN ITS
                  INSTRUCTIONS TO THE JURY SO AS TO PREJUDICE
                  RUSHING’S RIGHTS TO A FAIR TRIAL.

¶22.     Rushing asserts that the trial court erred in granting Instruction S-5 as submitted by the

State, and that the trial court further erred in failing to sua sponte give a limiting (cautionary)

instruction informing the jury as to the limited purpose for which the jury could consider the

                                                    17
evidence concerning the two prescription drugs found on Rushing’s person at the time of his

arrest.

          A. Trial court’s granting of Instruction No. S-5.

¶23.      Rushing complains of an aiding and abetting instruction (No. S-5) which was submitted

by the State and granted by the trial court. Instruction No. S-5 stated:

          The Court instructs the Jury that under the laws of Mississippi anyone who aids,
          assists, or encourages in the commission of a crime is deemed a principal to
          that crime, and is just as guilty as if he committed the crime himself. Therefore,
          if you find from the evidence in this case beyond a reasonable doubt that the
          defendant, WILLIE RUSHING, aided, assisted and encouraged another or others
          in the forgery of the prescriptions by carrying those prescriptions to the various
          pharmacists and presenting them to be filled, then the defendant is a principal
          to those offenses under the laws of the State of Mississippi.

¶24.      In reviewing a trial court’s grant or denial of jury instructions, our standard of review

is that we do not read the jury instructions in isolation, but instead we read them as a whole.

No one instruction is to be read alone or taken out of context. Young v. State, 891 So.2d 813,

819 (Miss. 2005); Hawthorne v. State, 835 So.2d 14, 20 (Miss. 2003); Woodham v. State,

800 So.2d 1148, 1156 (Miss. 2001). “A defendant is entitled to have jury instructions given

which present his theory of the case.        However the trial judge may also properly refuse the

instructions if he finds them to incorrectly state the law or to repeat a theory fairly covered

in another instruction or to be without proper foundation in the evidence of the case.” Young,

891 So.2d at 819-20 (quoting Howell v. State, 860 So.2d 704, 761 (Miss. 2003) (quoting

Thomas v. State, 818 So.2d 335, 349 (Miss. 2002) and Humphrey v. State, 759 So.2d 368,

380 (Miss. 2000)).      When reading the instructions as a whole, we must determine whether the


                                                   18
jury was properly instructed. Burton ex rel. Bradford v. Barnett, 615 So.2d 580, 583 (Miss.

1993). This proposition stands even when one specific instruction is arguably faulty.      “Defects

in specific instructions do not require reversal ‘where all instructions taken as a whole fairly

– although not perfectly – announce the applicable primary rules of law.’”            Id. (citations

omitted).

¶25.    In reading not only Instruction No. S-5, but all the jury instructions, as a whole, it is

clear that Rushing’s jury was not unfairly or erroneously instructed.     The record of the jury

instruction conference reveals that when the trial judge called up Instruction No. S-5 for

discussion, the following occurred:

        BY [DEFENSE COUNSEL]: Um, your Honor, I believe I would object to this
        because I don’t think there’s evidence in the case to support this jury instruction.

        BY THE COURT: State?

        BY [PROSECUTOR]: In response your Honor, the defendant, if I understand his
        defense in this case to Count 1 is that I didn’t do it, but if I did do it, I did it
        because my wife gave it to me and I took it in there.

        BY [DEFENSE COUNSEL]: Your Honor, he was asked that question point blank
        and he said no.

        BY THE COURT: The Court recalls the testimony being that he did not pass
        these scrips, but then he indicated on cross-examination that if he did take them
        in there and if they had been forged, someone else would have been done it (sic)
        but he got these scrips from his wife; and he also unsolicited indicated to the
        jury that his wife had just gotten out of the penitentiary for doing this same
        thing. That was unsolicited when you asked him on direct examination.

        BY [DEFENSE COUNSEL]: Your Honor, but the burden of proof is on the State
        and the State is seeking a jury instruction on something that they didn’t produce
        any evidence or any witnesses of any conspiracy at all.


                                                19
       BY THE COURT: I know, but the evidence seemed to have come from your
       client. Whether it comes on direct examination by the State’s witnesses or by
       the defense witnesses, at the end of the case I’ve got to look at all the evidence
       that’s before the jury and the jury – now, he was very careful to say, I’m not
       accusing her of doing this, but he said she’s the one that took me to the store to
       get these drugs and she’s the one that handed me these prescriptions, and oh, by
       the way, she just got out of prison for doing this same thing. Not in that
       particular order, but that was the gist of his testimony. I find that there is
       sufficient evidence that a jury could find this and I will give this instruction.

¶26.   The trial court correctly recalled the gist of Rushing’s testimony.   At least as to Count

1, regarding the passing of the prescription to pharmacist Van Miles on February 18, 2003,

without Instruction No. S-5, the jury could have been left confused as to the legal culpability

of Rushing under our state law since the jury knew that Susan was outside in the car and

Rushing was at least inferentially trying to leave the impression with the jury that he was acting

on behalf of Susan. Instruction No. S-5 was not peremptory in nature, and it did not mandate

the jury’s finding of guilt if the jury found Rushing to have aided and assisted others (such as

Susan). This instruction only explained to the jury that an aider and abetter was deemed under

our law to be a principal to the offense. The instruction informed the jury that if the jury found

from the evidence beyond a reasonable doubt that Rushing “aided, assisted and encouraged

another or others in the forgery of prescriptions by carrying those prescriptions to the various

pharmacists and presenting them to be filled,” then Rushing was a principal to the offenses

under Mississippi law.

¶27.   Instruction Nos. S-2, S-3 and S-4 were the elements instructions for the three indicted

crimes, and these three instructions were identical in their language, except for the date of the

offense and the name of the pharmacist. Instruction No. S-2 was the elements instruction for

                                               20
the February 18, 2003, encounter with Van Miles at Wal-Mart. Via this instruction, the jury

was informed that in order to find Rushing guilty of passing a forged prescription on this

occasion, the jury had to find from the evidence beyond a reasonable doubt that Rushing did

“unlawfully, wilfully, feloniously, knowingly and intentionally transfer and deliver to Van

Miles, a pharmacist, a prescription upon which the name of Dr. Jim Smith, a licensed medical

practitioner, had been forged.”

¶28.    The jury was informed, inter alia, by way of Instruction No. C.01, that the jury was “not

to single out one instruction alone as stating the law, but you must consider these instructions

as a whole.” The jury was also informed via Instruction No. S-1 (the form of the verdict), that

as to each of the three counts, the jury must consider each count separately, that each count

was a separate case, and that separate verdicts of either guilty or not guilty (or unable to reach

a verdict) should be rendered in each count.

¶29.    All of the instructions, when read together and considered as a whole, make it clear that

Rushing was to be found “guilty as charged” only if the jury found beyond a reasonable doubt

that Rushing committed all of the elements of the crime of prescription forgery, namely that

he “knowingly or intentionally” passed a “forged prescription of a practitioner” to the

pharmacists involved in this case. See Miss. Code Ann. § 41-29-144(2) (Rev. 2001). We find,

without question, that the jury instructions in this case, when read together, appropriately

informed the jury of the applicable law.       Even if we were to find by some stretch of the

imagination any error in Instruction No. S-5, which we do not, this Court has held that failure

of one instruction to set out properly a necessary element of a crime is not error when the

                                                 21
element is correctly included in other instructions.    Gray v. State, 487 So. 2d 1304, 1308

(Miss. 1986).

¶30.    For the foregoing reasons, we find that the trial court appropriately granted Instruction

No. S-5; therefore this issue is without merit.

        B. Trial court’s failure to sua sponte give a limiting (cautionary) instruction.

¶31.    In the final two paragraphs of his brief, Rushing raises an issue of the trial judge’s being

required to submit limiting instructions sua sponte to the jury regarding the evidence of the

prescription drugs found on his person at the time of the arrest. In making his assertion that

the trial judge should have sua sponte given a limiting instruction to the jury, Rushing relies

on Smith v. State, 656 So. 2d 95, 99 (Miss. 1995), where this Court held that admission of

evidence of prior acts allowed pursuant to Miss. R. Evid. 404(b) required the trial judge in

certain circumstances to sua sponte instruct the jury as to the limited consideration that the

jury may give to such evidence. However, Rushing acknowledges our recent decision in Brown

v. State, 890 So.2d 901, 913 (Miss. 2004), overruling Smith as to the requirement of the trial

judge to sua sponte give a limiting instruction after receiving Miss. R. Evid. 404(b) evidence.




¶32.    In Smith, we see the culmination of this Court’s long struggle with convictions secured

under our “possession (of drugs) with intent (to sale/distribute) laws.” See Miss. Code Ann.

§ 41-29-139(a) (Supp. 2004). How does the State reach into a defendant’s mind and prove

intent? In Smith, we stated:



                                                  22
        Nevertheless, we must be mindful of our rules. We have promulgated M.R.E.
        105 which clearly contemplates that restrictive instructions be given upon
        request and as the Comment acknowledges, that in the absence of a request,
        there is no error. M.R.E. 105 and Comment. We are loath to reverse for plain
        error in the face of a rule so clear. We say for the future, however, that
        wherever 404(b) evidence is offered and there is an objection which is
        overruled, the objection shall be deemed an invocation of the right to MRE 403
        balancing analysis and a limiting instruction. The court shall conduct an MRE
        analysis and, if the evidence passes that hurdle, give a limiting instruction unless
        the party objecting to the evidence objects to giving the limiting instruction.

656 So.2d at 100.         While there is no doubt that this Court in Smith was focusing on cases

involving evidence of prior drug sales of a defendant to prove the “intent” element of

“possession of drugs with intent to sale/distribute,” the language in Smith is admittedly

unqualified as to its applicability in all cases involving Rule 404(b) evidence.       However, in

Brown, we once and for all laid this issue to rest when we stated:

        Today we abandon Smith’s requirement that a judge issue a sua sponte limiting
        instruction and return to the clear language of Rule 105. The rule clearly places
        the burden of requesting a Rule 404(b) limiting instruction upon counsel. The
        rule is controlling, and to the extent that Smith and its progeny contradict that
        plain language they are overruled.

890 So.2d at 913.

¶33.    Rushing reads Brown correctly to note that it changed the rule pronounced in Smith,

but argues that Smith was still in effect at the time of his trial and thus required the trial court

in today’s case to sua sponte give a limiting instruction to the jury regarding the 404(b)

evidence found on his person at the time of the arrest, namely the actual prescription drugs.

However, there is one problem with Rushing’s request.           Here is the sum total of Rushing’s

argument on this issue:


                                                  23
        The trial court did not give a limiting instruction related to this evidence. This
        trial was conducted November 20th and 21st, 2003. At that time, the opinion in
        Brown v. State, 890 So.2d 901 (Miss. 2004), had not been issued. Therefore,
        the law that required the trial court to sua sponte give a limiting instruction,
        regardless of whether the Defendant requested such an instruction, mandated by
        Smith v. State, 656 So.2d 95 (Miss. 1995), was still the law applicable to the
        trial court. The Supreme Court, until the Brown decision, had reversed some
        convictions based on the absence of the limiting instruction relying on the
        mandate in Smith. Brown, in plain language, overrules Smith and its progeny,
        and re-established the rule that the burden of seeking a Rule 404(b) limiting
        instruction was on defense counsel. As this area of the law has proven unsettled,
        the Defendant seeks to preserve this error in case this Court re-establishes the
        Smith or similar rule.

In essence, Rushing requests that we now engage in a “retroactive/prospective” discussion to

determine whether Brown or Smith applies to his case; however, while we know what Rushing

requests of us, he offers no citation to any authority, much less any relevant authority to

undergird his position. We have repeatedly held that when a party on appeal raises an issue for

us to consider but nonetheless fails to cite any authority to support his or her argument on this

issue, we need not consider it. Byrom v. State, 863 So.2d 836, 880 (Miss. 2003) (quoting

Simmons v. State, 805 So.2d 452, 487 (Miss. 2001) (citing Williams v. State, 708 So.2d

1358, 1362-63 (Miss. 1998)). See also Brown v. State, 798 So.2d 481, 494 (Miss. 2001);

Evans v. State, 725 So.2d 613, 691-92 (Miss. 1997).               Accordingly, we decline Rushing’s

invitation to engage in a retroactive/prospective analysis to ascertain the applicability or

inapplicability of Smith or Brown to his case. This issue is thus without merit.




                                                   24
                                     CONCLUSION

¶34.   For the foregoing reasons, the Lowndes County Circuit Court’s judgment is affirmed.

¶35. CONVICTION OF THREE COUNTS OF PRESCRIPTION FORGERY AND
SENTENCE OF TEN (10) YEARS FOR EACH COUNT IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, PAY A FINE OF $1,000 FOR EACH
COUNT AND ALL COSTS OF COURT FOR EACH COUNT,                AFFIRMED.
SENTENCES SHALL RUN CONSECUTIVELY.

    SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, DICKINSON AND
RANDOLPH, JJ., CONCUR.       GRAVES, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.




                                           25
