         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-KA-00503-COA

MALCOLM HORTON A/K/A MALCOLM                                                 APPELLANT
DEVONTE HORTON A/K/A MALCOLM
DEVONTE HORTON, JR.

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                           01/04/2016
TRIAL JUDGE:                                HON. JEFF WEILL SR.
COURT FROM WHICH APPEALED:                  HINDS COUNTY CIRCUIT COURT,
                                            FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                     OFFICE OF STATE PUBLIC DEFENDER
                                            BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: ABBIE EASON KOONCE
DISTRICT ATTORNEY:                          ROBERT SHULER SMITH
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                AFFIRMED - 01/30/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.

       BARNES, J., FOR THE COURT:

¶1.    On December 9, 2015, Malcolm Horton was convicted of armed robbery. He was

sentenced by the Hinds County Circuit Court, First Judicial District, to thirty years in the

custody of the Mississippi Department of Corrections (MDOC), with twenty years to serve,

ten years suspended, and five years of post-release supervision. The court also ordered

Horton to serve a consecutive sentence of five years for the use or display of a firearm during

the commission of a felony under Mississippi Code Annotated section 97-37-37(1) (Rev.
2006). After the trial court denied his post-trial motion, Horton appealed. Finding no error,

we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On January 11, 2012, at approximately 10:45 p.m., Officer Stephanie Burse responded

to a call regarding the attempted robbery of a Burger King on Robinson Road in Jackson,

Mississippi. The assistant manager told Officer Burse that a masked gunman wearing a black

shirt and jeans approached the restaurant while she was attempting to close; she ran back

inside and hit the panic button, thwarting the robbery. While interviewing the employee,

Officer Burse overheard a radio dispatch that a Popeyes’s restaurant on Terry Road had been

robbed.

¶3.    Officer Ken Travis responded to the call regarding the Popeyes’s robbery. He spoke

with three employees, including the manager, Tameka Cross. The employees told Officer

Travis that “they were approached by at least two males wearing black masks and black

shirts.” One employee, Nakisha Anderson, later testified that before the robbery she noticed

a “dark red” car pull up next door and saw a masked male dressed in black get out and cock

a pistol; so she and the other employee ran to a nearby store for help. Cross was forced back

into the restaurant at gunpoint to open the safe, and the robber took approximately $700.

While following Cross into the store, the gunman discharged his weapon into the air.

¶4.    Horton was arrested a few days later in connection with the robberies. On January 19,

2012, he gave a recorded video statement to Detectives Eric Smith and Delars Smith,

confessing to robbing the Popeyes and a Waffle House. Horton also gave a written statement



                                             2
to Detective Marcus Williams, in which he said he “ran up on a woman at [a] Jasco (store)

with a gun” and took her “maroon Impala.” Consistent with his video statement, Horton

stated that he had on a mask and “was in all black” and that after taking the car, he robbed

the Popeyes and a Waffle House.

¶5.    Horton was indicted on May 9, 2012. Count I alleged that he attempted to rob a

Burger King restaurant using a handgun. Count II alleged that he robbed a Popeyes’s

restaurant using a handgun. The indictment also alleged that Horton violated section 97-37-

37(1) for “having used a firearm during the commission of a felony.” A jury trial was held

on December 8-9, 2015. Horton was found guilty on Count II, but was acquitted on Count

I. At a separate sentencing hearing, the trial judge sentenced Horton to thirty years in the

custody of the MDOC, with twenty years to serve, ten years suspended, and five years of

post-release supervision. He was also ordered to serve a five-year consecutive sentence

under the firearm-enhancement statute.

¶6.    On December 17, 2015, Horton filed a motion for a judgment notwithstanding the

verdict or, in the alternative, for a new trial. The trial court denied the motion, and he now

appeals.

                                       DISCUSSION

       I.     Whether the trial court erred in denying Horton twelve
              peremptory challenges.

¶7.    During jury selection, the trial judge allowed both the defense and the State six

peremptory challenges. Defense counsel argued that Horton should be given twelve

peremptory challenges:


                                              3
       MR. ROUTH:           Your Honor mentioned earlier to the jury six strikes or
                            six peremptory challenges would be employed in this
                            case. We believe it should be [twelve]. It’s a capital
                            case where a possible sentence of life is in play. . . .

       THE COURT:           Is the State going to ask the jury to pass on sentence?

       MR. SMITH:           No, Your Honor. We’re not seeking life and we’re not
                            gonna instruct the jury in that regard. I believe they have
                            to be the ones who sentence to life for armed robbery.

       THE COURT:           All right.

       MR. SMITH:           We believe six is appropriate since we’re not seeking
                            life.

       THE COURT:           I agree.

                            ....

                            Well life is not a possibility, Mr. Routh. And I’m
                            looking at [Uniform Rules of Circuit and County Court]
                            Rule 10.01.[1] It says in felony cases not involving the
                            possible sentence of death or life imprisonment, the
                            defendant and the prosecution shall have six peremptory
                            challenges with the selection of [twelve] jurors. And I
                            believe that supports my ruling.

Defense counsel continued to assert, however, that because armed robbery carries a possible

life sentence, the court should allow twelve peremptory challenges, and he moved for a

mistrial. The trial judge denied the motion.

¶8.    Horton claims that the trial court’s ruling was an abuse of discretion. The State

responds that because Horton was not facing life imprisonment, he was not entitled to twelve

       1
         We note that the Uniform Rules of Circuit and County Court relating to criminal
practice have been supplanted by the Mississippi Rules of Criminal Procedure, effective July
1, 2017. But because the former rules were still in effect during Horton’s trial, Rule 10.01
is applicable to his case.

                                               4
peremptory challenges. Mississippi Code Annotated section 99-17-3 (Rev. 2015) provides

in part: “In capital cases the defendant and the [S]tate shall each be allowed twelve

peremptory challenges. In cases not capital the accused and the [S]tate each shall be allowed

six peremptory challenges; but all peremptory challenges by the [S]tate shall be made before

the juror is presented to the prisoner.” We acknowledge that armed robbery is a capital

offense. “Capital cases,” as defined in Mississippi Code Annotated section 1-3-4 (Rev.

2005), are “criminal cases, offenses, and crimes punishable by death or imprisonment for life

in the state penitentiary.” Mississippi Code Annotated section 97-3-79 (Rev. 2012), in turn,

provides:

       Every person who shall feloniously take or attempt to take from the person or
       from the presence the personal property of another and against his will by
       violence to his person or by putting such person in fear of immediate injury to
       his person by the exhibition of a deadly weapon shall be guilty of robbery and,
       upon conviction, shall be imprisoned for life in the state penitentiary if the
       penalty is so fixed by the jury; and in cases where the jury fails to fix the
       penalty at imprisonment for life in the state penitentiary the court shall fix the
       penalty at imprisonment in the state penitentiary for any term not less than
       three (3) years.

(Emphasis added). Thus, the crime of armed robbery does carry the possibility of a life

sentence “if the penalty is so fixed by the jury.”

¶9.    By agreeing not to pass sentencing to the jury, the State never sought a life sentence

for Horton. Since Horton’s trial, the Mississippi Supreme Court, in Bester v. State, 188 So.

3d 526, 529-30 (¶¶9-12) (Miss. 2016), upheld a trial court’s sentence of life imprisonment

for forcible rape absent a jury recommendation, as the applicable statute allowed the court

to fix a penalty “for any term.” This Court has applied Bester to affirm a trial judge’s



                                               5
sentencing of a defendant convicted of armed robbery to a term of life absent a jury’s

recommendation, as section 97-3-79 contains similar language allowing the trial court to “fix

the penalty at imprisonment in the state penitentiary for any term not less than three (3)

years.” See Young v. State, 2016-CP-00542-COA, 2017 WL 4386676, at **2-4 (¶¶7-9) (Oct.

31, 2017). It is evident from the record, however, that the trial judge, in this case, never

contemplated the possibility of imposing a life sentence. As the trial judge noted, Rule 10.01

provided in part: “In felony cases not involving the possible sentence of death or life

imprisonment, the defendant and the prosecution shall have six (6) peremptory challenges

for the selection of the twelve regular jurors. These challenges may not be used in the

selection of an alternate juror or jurors.”2 (Emphasis added).

¶10.   Therefore, we rely on the controlling language of Rule 10.01 in our determination of

this issue.   Since there was no possibility that Horton would be sentenced to life

imprisonment by a jury, and Bester (and its progeny) had not yet raised the possibility that

the trial court could impose such a sentence, we find the trial court’s ruling that Horton was

only entitled to six peremptory challenges was not an abuse of discretion.

       II.    Whether the trial court erred in enhancing Horton’s sentence
              under section 97-37-37(1).

¶11.   The trial court ordered Horton to serve a separate five-year consecutive sentence




       2
        To the extent that Rule 10.01 (now Mississippi Rules of Criminal Procedure Rule
18.3(c)(1)(A)(i-ii)) might be read as narrowing the provisions of section 99-17-3, the rule
controls over the statute regarding matters of judicial procedure. See State v. Delaney, 52
So. 3d 348, 351 (¶11) (Miss. 2011) (“[W]hen a statute conflicts with this Court’s rules
regarding matters of judicial procedure, our rules control.”).

                                              6
under the firearm-enhancement statute, section 97-37-37(1).3 Because the jury was not

instructed to find he “used or displayed” a firearm during the commission of a felony, Horton

contends that the trial court erred in imposing the enhanced sentence.

¶12.   However, Jury Instruction S-2 instructed the jury that it should find Horton guilty of

armed robbery if he willfully, unlawfully, and feloniously took money from Cross “by

violence to her person or putting [] Cross in fear of immediate injury to her person by the

exhibition of a deadly weapon, to wit: a handgun.” (Emphasis added). Thus, the jury

instruction’s language clearly stated that in order to convict Horton of armed robbery, the

jury had to find, among other things, that he exhibited a deadly weapon. Section 97-37-37(1)

likewise requires that Horton use or display a firearm during the commission of any felony

before receiving the statutorily enhanced penalty. As the jury found beyond a reasonable

doubt that Horton used a “deadly weapon, to-wit; a handgun,” during the robbery of Cross,

this finding satisfies the essential elements of section 97-37-37(1). See Johnson v. State, 44

So. 3d 365, 367 (¶9) (Miss. 2010) (finding the jury decided each element of the enhanced-

penalty statute when it found Laharrison Johnson guilty of armed robbery by use of a firearm,

and section 97-37-37(1) required a determination of no additional factor not already decided

by the jury).

       3
           Section 97-37-37(1) provides:

       Except to the extent that a greater minimum sentence is otherwise provided by
       any other provision of law, any person who uses or displays a firearm during
       the commission of any felony shall, in addition to the punishment provided for
       such felony, be sentenced to an additional term of imprisonment in the custody
       of the Department of Corrections of five (5) years, which sentence shall not
       be reduced or suspended.

                                              7
¶13.   Horton also claims that sentencing him under section 97-37-37(1) subjected him to

double jeopardy. However, our Court has previously rejected this argument, finding “that

sentence-enhancement statutes under which additional terms of imprisonment are imposed

do not trigger double-jeopardy violations.” Lewis v. State, 112 So. 3d 1092, 1097 (¶15)

(Miss. Ct. App. 2013). The statute “merely imposes an elevated sentence for use or display

of a firearm during the commission of a felony, and it does not delineate an independent

substantive offense.” Id. Our supreme court has further concluded: “The Legislature

intended for these two punishments to apply to the same offense, therefore there is no

double-jeopardy concern.” Taylor v. State, 137 So. 3d 283, 288 (¶17) (Miss. 2014). We find

no merit to Horton’s claim.

       III.   Whether the trial court erred in admitting evidence of other bad
              acts.

¶14.   Horton argues that the trial court erred in allowing the State to present evidence of

other bad acts, specifically “an uncharged and unproven carjacking and armed robbery of a

Waffle House,” and that “the admission of this evidence prejudiced his substantial right to

a fair trial,” violating Mississippi Rules of Evidence 404(b), 403, and 105. The admission

or exclusion of evidence by the trial court is reviewed for abuse of discretion. Thompson v.

State, 157 So. 3d 844, 851 (¶20) (Miss. Ct. App. 2015). We will reverse the court’s decision

“only if such discretion has been abused and a substantial right of a party has been affected.”

Id.

¶15.   On October 5, 2015, Horton filed a motion requesting a redaction of a portion of his

written statement to police, in which he stated he robbed a Waffle House and committed an


                                              8
armed carjacking of someone driving a maroon Impala. At a pretrial-motions hearing,

defense counsel argued that this portion of Horton’s statement was “prejudicial, and . . . not

probative to any proof in the State’s case in chief in these two cases.” But defense counsel

did acknowledge that the incidents were “in close proximity.” The motion was held in

abeyance.

¶16.   At trial, the State moved for the admission of Horton’s statements to police, arguing

the crimes “constitute[d] a single transaction or occurrence,” and it would “have a difficult

time telling a rational and coherent story of the events of the night without being able to

explain that the car was used in the commission of this crime.” After reviewing Horton’s

video statement, the trial judge allowed the State to introduce the video into evidence,

finding:

       On [the video,] the defendant discusses two armed robberies; one at the
       Popeyes and another at the Waffle House which occurred very close in time
       – on the same date apparently – and were clearly part of a common scheme or
       transaction, and thus will be admissible under Mississippi Rule of Evidence
       404(b). . . . [R]edacting statements about the Waffle House robbery from the
       audio/videotape would no doubt be confusing to the jurors in this matter, and
       leave the audio/videotape in a disjointed and incoherent state.

However, the trial court did not allow Horton’s written statement, as no evidence had linked

the armed carjacking to the robberies. The court did state it would revisit the issue if such

evidence was introduced.

¶17.   After defense counsel referenced the carjacking during her opening statement, the

State objected, arguing the reference opened the door to testimony about the carjacking from

Detective Williams. The trial court sustained the objection, but did not rule on the



                                              9
admissibility of Horton’s written statement. However, after Anderson testified that she saw

a “dark red car” pull up next to the Popeyes and saw a man dressed all in black get out of the

car with a gun, the State again moved to admit Horton’s written statement and testimony by

Detective Williams. The trial judge determined at that point that the reference in opening

statements by defense counsel, coupled with Anderson’s testimony, rendered evidence as to

the armed carjacking “fair game consistent with [his] ruling as it concerns 404(b) evidence.”

Noting that “[w]ithout that evidence I believe it would be confusing to the jury,” the trial

judge allowed Horton’s written statement to be admitted into evidence.

              A.     Rule 404(b)

¶18.   Horton contends that the evidence of the stolen maroon Impala and the robbery of the

Waffle House “was not necessary for the State to prove that the Popeyes and/or Burger King

was robbed.” Horton also claims the State’s use of this evidence was a “tactical scheme” to

prejudice his defense.

¶19.   Rule 404(b)(1-2) provides:

       Evidence of a crime, wrong, or other act is not admissible to prove a person’s
       character in order to show that on a particular occasion the person acted in
       accordance with the character . . . [However, t]his evidence may be admissible
       for another purpose, such as proving motive, opportunity, intent, preparation,
       plan, knowledge, identity, absence of mistake, or lack of accident.

The State asserts that since the robberies of the Popeyes and Waffle House occurred on the

same evening within a short time of one another, the evidence was admissible “to show

Horton’s plan and motive in committing a string of armed robberies.” In his video statement

to the detectives, Horton confessed that he and two other men robbed the Popeyes, then



                                             10
proceeded to the Waffle House to commit another robbery. “Proof of another crime or act

is allowed when it is so interrelated to the charged crime that it constitutes either a single

transaction or occurrence or a closely related series of transactions or occurrences.” Price

v. State, 898 So. 2d 641, 653 (¶30) (Miss. 2005) (citing Brown v. State, 890 So. 2d 901, 912

(¶32) (Miss. 2004)). “[T]he State has a legitimate interest in telling a rational and coherent

story of what happened . . .[, and w]here substantially necessary to present to the jury the

complete story of the crime, evidence or testimony may be given even though it may reveal

or suggest other crimes.” Davis v. State, 40 So. 3d 525, 530 (¶18) (Miss. 2010) (quoting

Brown v State, 483 So. 2d 328, 330 (Miss. 1986)).

¶20.   We also agree with the State’s argument that the evidence was relevant to prove

Horton’s identity. Anderson, a Popeyes’s employee, testified that she saw men pull up next

to the restaurant in a “dark red” car and a man step out with a gun. Accordingly, we find no

abuse of discretion in the trial judge’s determination that it was necessary for the jury to hear

Horton’s statements because that evidence told the entire story of what transpired that

evening and corroborated Anderson’s testimony about the “dark red” car.

              B.      Rule 403

¶21.   Horton claims that the trial court erred in admitting the evidence “because the

probative value of this evidence, if any, was substantially outweighed by the danger of unfair

prejudice and confusion of the issues” under Rule 403.4 If evidence is admissible under Rule

       4
         Rule 403 provides: “The court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”

                                               11
404(b), “it still must pass through Rule 403, which is the ‘ultimate filter through which all

otherwise admissible evidence must pass.’” Stone, 94 So. 3d at 1089 (¶34) (quoting McKee

v. State, 791 So. 2d 804, 810 (¶22) (Miss. 2001)).

¶22.   Admittedly, the trial judge did not conduct an on-the-record balancing test under Rule

403. However, “a circuit court’s failure to state Rule 403’s ‘magic words’ does not mean

that the court did not consider Rule 403’s requirements or that the court erred in its decision

on admissibility.” Corser v. State, 147 So. 3d 357, 360 (¶14) (Miss. Ct. App. 2013) (citing

Tate v. State, 20 So. 3d 623, 639 (¶40) (Miss. 2009)). In Jones v. State, 920 So. 2d 465, 476

(¶34) (Miss. 2006), the supreme court explained:

       [W]hile we clearly interpret the rules of evidence as requiring that all
       otherwise admissible evidence be “filtered” through the balancing test set forth
       in Rule 403, we do not interpret this requirement to be a regimented procedure
       that must be explicitly performed on pain of reversal. Though this Court
       certainly expects trial judges to have considered Rule 403 in making their
       evidentiary rulings, we certainly do not predicate the soundness of these
       determinations on the express use of magic words. . . . It follows that our
       review depends on the evidence and not the judge, and while a judge’s on-the-
       record analysis is recommended as it serves to fortify the judge’s position for
       purposes of review, the lack of such analysis is harmless unless we deem the
       evidence to be patently prejudicial.

As the State argues, the record shows that the trial judge thoroughly considered the

implications of admitting or excluding this evidence, hearing lengthy arguments from both

the defense and the State, and even initially excluding the written statement from evidence

until defense counsel’s reference to the carjacking and Anderson’s testimony about the car.

In any event, any error in admitting the evidence regarding the carjacking and Waffle House

was harmless. Horton confessed in both statements to robbing the Popeyes. Therefore, we



                                              12
find the trial court’s admission of evidence of Horton’s statements regarding the carjacking

and Waffle House was not an abuse of discretion, as the evidence’s probative value was not

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury.

              C.       Rule 105

¶23.   As amended on July 1, 2015, Rule 105 states:

       If the court admits evidence that is admissible against a party or for a purpose
       – but not against another party or for another purpose – the court, unless
       expressly waived or rebutted, shall restrict the evidence to its proper scope,
       contemporaneously instruct the jury accordingly, and give a written instruction
       if requested.

Horton asserts that the trial court should have restricted evidence of the carjacking and

Waffle House robbery “to its proper purpose.” While Horton acknowledges that he did not

request the court to give a limiting instruction, he claims that he did not “expressly waive[]

the requirement that the trial court contemporaneously instruct the jury as to the proper

purpose of the other bad acts evidence.”

¶24.   We find no merit to this claim. This Court has held that “even as amended, Rule 105

only requires the judge to offer a limiting instruction, which the defendant is free to ‘waive.’”

Curry v. State, 202 So. 3d 294, 299 (¶16) (Miss. Ct. App. 2016) (citing M.R.E. 105). In fact,

“the defendant may not want such an instruction because it may actually ‘focus the jury’s

attention’ on the potentially prejudicial testimony.” Id. (quoting Tate v. State, 912 So. 2d

919, 928 (¶28) (Miss. 2005)). We concluded in Curry:

       [Jemarcus] Curry’s claim on appeal that he was prejudiced because such an
       instruction was not given is highly speculative. Curry’s attorney presumably

                                               13
       knew that such an instruction was available upon request, but he did not ask
       for it. Under the circumstances, we cannot say that the absence of a limiting
       instruction deprived Curry of a fair trial. See Robinson v. State, 940 So. 2d
       235, 239 (¶11) (Miss. 2006) (holding that the erroneous denial of a limiting
       instruction is harmless error unless it deprives the defendant of a fair trial).

Id. Likewise, Horton’s attorney did not request a limiting instruction, and we find the

absence of any limiting instruction by the court did not deprive Horton of a fair trial.

¶25.   Accordingly, we affirm Horton’s conviction and sentence.

¶26.   AFFIRMED.

     LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN PART
AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.




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