                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2005-KA-02136-SCT

CHRISTINE WILSON

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          10/05/2005
TRIAL JUDGE:                               HON. SAMAC S. RICHARDSON
COURT FROM WHICH APPEALED:                 MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   JULIE ANN EPPS
                                           CYNTHIA HEWES SPEETJENS
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: DEIRDRE McCRORY
DISTRICT ATTORNEY:                         DAVID BYRD CLARK
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 10/25/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       CARLSON, JUSTICE, FOR THE COURT:

¶1.    In the Madison County Circuit Court, Christine Wilson was indicted, tried, convicted

and sentenced to the custody of the Mississippi Department of Corrections for the crime of

felony shoplifting. Aggrieved by the trial court’s entry of the final judgment of conviction

and sentence, Wilson appeals to us. Finding no reversible error, we affirm.

               FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.    Christine Wilson was indicted by a Madison County grand jury for the crime of felony

shoplifting at Dillard’s in the Northpark Mall in Ridgeland. We reveal here the relevant facts
through the testimony of the various witnesses called during Wilson’s subsequent jury trial

in the Circuit Court of Madison County, Judge Samac S. Richardson, presiding.

¶3.    On November 4, 2002, Ridgeland police officer Steve Wilson 1 was working at his

part-time job as a loss prevention officer for Dillard’s. As a loss prevention officer, Officer

Wilson’s primary duty was to look for shoplifters. Dillard’s loss prevention officers served

as either camera operators or floor operators. On this day, Officer Wilson was serving as a

floor operator when he noticed three females and a male gathering merchandise and then

carrying the merchandise to one location in the store, which was a typical modus operandi

for shoplifters. As Officer Wilson stated, “I’m not talking about a couple of items; I’m

talking about quite a few items,” which consisted mostly of leather coats and sweat suits.

With Officer Wilson’s attention understandably being focused on these four individuals, he

began to approach them while they were all together. As Officer Wilson approached them,

they began lifting their bags of merchandise in an apparent effort to leave the store. Once

these four individuals noticed Officer Wilson approaching, “they split up” with two of the

females heading toward the parking lot door of Dillard’s (and dropping the merchandise

bag), and the other female and male heading toward the mall area. Officer Wilson made a




       1
        There is no indication from the record that Christine Wilson and Officer Steve
Wilson are related. To avoid confusion in discussing the evidence, the loss prevention
officer will be referred to as “Officer Wilson,” and the defendant will be referred to as
“Wilson.”


                                              2
courtroom identification of Wilson as the woman who was with the male. Officer Wilson

noted that by then, Wilson was not carrying a merchandise bag, but the male was.

¶4.    Officer Wilson used his cell phone to call the Ridgeland Police Department for backup

and then apprehended Wilson and the male in the mall area, also recovering the bag, which

contained leather coats and sweat suits. The total value of the recovered merchandise in the

two bags was $1,100.50. On redirect examination, Officer Wilson testified as follows:

              Q. Let’s concentrate on this defendant. What specifically did
              you see this defendant do during this episode?

              A. Hold the bag open so the merchandise could be taken and
              put in the bag.

              Q.    Now, when merchandise - - a customer pays for
              merchandise, does the cash register attendant do anything with
              the sale tags?

              A. Oh, yeah. There’s - - well, we have a system. It’s a pop-
              label system. But in essence, what it amounts to is they have to
              scan the tag that’s on the merchandise. They also have to apply
              a tag. So it’s a two-tag system. None of the merchandise had
              pop-labels on the tags and none of the merchandise had that
              second, added label that the yellow label goes on there. Without
              that, it can’t be rung up.

              Q. And when this defendant was apprehended by you and the
              officers, together, did she produce a sales ticket or a receipt
              where she had paid for anything?

              A. She didn’t produce a receipt for the merchandise that we
              recovered. Now I don’t know if she had purchased anything else
              or not.

              Q. Were there any receipts found in either of the two bags - -

              A. No, sir.

                                             3
              Q. - - for the fifteen garments?

              A. No, sir.

¶5.    Timothy Harris, the male suspect, pleaded guilty to felony shoplifting and testified for

the State. By the time of Wilson’s trial, Harris was incarcerated based on his conviction.

Harris testified that he did not know Wilson on the day of the incident and did not know her

name on the day of the trial; however, he testified that he shoplifted regularly with the other

two females. Harris further testified that Wilson knew the other two females and that she

“knew what we was doing [sic]” because “she went in the store with us.” Harris testified that

the plan was to take the clothes, not pay for them, and sell them.

¶6.    According to Harris, the plan was that he would remain outside the store waiting to

be called back into the store to assist with carrying the bags of merchandise out of the store.2

Once the women “called me back in there to tote them out,” Harris went into the store and

“toted” one of the bags out of the store, at which time he was stopped by security. Harris

further testified that he did not hold the bag while the other three women were stuffing it.

Harris stated that he did not see what was happening inside the store because he was outside



       2
         We deem it imperative here to note that, while never specifically stated in the record,
a review of the record, when considered in its totality, reveals that a jury could easily come
to the conclusion that, although Harris was “outside” Dillard’s while the women were inside
shoplifting the merchandise, Harris was “outside” the store in the mall area, waiting to be
summoned by the women for assistance in carrying the bags of merchandise out of the store.
In other words, a reasonable juror could fairly infer that Harris was not outside the store in
the parking lot, totally oblivious to what was occurring inside the store. This will be
discussed in more detail, infra.

                                               4
the store, waiting to be called into the store to pick up the bags. After Harris was cross-

examined by defense counsel concerning, inter alia, Harris’s inability to see what the women

were doing inside the store since he was outside the store, Harris was questioned further by

the prosecutor during the State’s redirect examination:

              Q. Mr. Harris, as you say, you were to wait outside until they
              told you to come get the bags.

              A. Right.

              Q. Who’s [sic] plan was this?

              A. Sir?

              Q. Who made that plan?

              A. It was all our plan.

                     MR. CONNER: Your Honor, we object. The
                     question calls for hearsay.

                     THE COURT:           Overruled.

              Q. Who’s [sic] plan was that?

              A. We all went to steal.

              Q. And everybody in that car - - who got in that vehicle knew
              you were about to go steal some clothes?

              A. Yes, sir, they did.

                     MR. CONNER: Object to speculation as to what
                     anyone else knew.

              Q. How is it everybody else knew?

                     THE COURT:           Overruled.

                                              5
                 A. Sir?

                 Q. How is it everybody knew?

                        MR. CONNER: Object to a fact not in evidence.

                        MR. ROGILLIO: He’s trying to get the fact into
                        evidence.

                        MR. CONNER:        The form of the question is
                        improper.

                        THE COURT:       Overruled.

                 Q. How was it that everybody knew?

                 A. Sir?

                 Q. How was it that everybody knew?

                 A. Because every - - everybody know [sic] that we work
                 together like that, you know. They know - - they know exactly
                 what we were going to the store to do. We wasn’t [sic] going to
                 watch no movie. We wasn’t [sic] going to buy nothing [sic].

¶7.    Ridgeland police officer Kevin Mathis3 arrested Wilson. Officer Mathis testified that

the clothing in the suspects’ bags still contained tags and that Wilson produced no receipt

showing that she had paid for the clothing.

¶8.    Christine Wilson took the stand in the defendant’s case-in-chief, and she identified

one of the two unknown females as her friend, Shameka Davis. Wilson also testified that she

did not know the name of the other female. Wilson further testified:




       3
           By the time of the trial, Mathis was employed by the Federal Bureau of Prisons.

                                               6
              A. Yes, sir. [Davis and I] were going to the mall - - or we were
              about to go to the mall. And she told me that she was going to
              pick up two of her friends that wanted to go to the mall with us.
              So she went and picked up Mr. Harris and the other lady. And
              when she picked them up, we went to the mall. We all went into
              Dillard’s. They went their way; I went my separate way. When
              I came back, I told - - I was talking to my friend. I told her that
              I was about to checkout, and she told me that - - she told me
              what was going to go on. So I walked - - I put my merchandise
              on the rack. I walked out of the store. I was sitting outside on
              a bench. I was waiting on her to come out of the store.

              By that time, must be about twenty minutes later, Mr. Wilson,
              the officer, he had on regular clothes, he arrested me, told me
              that - - he read me my rights. He arrested me and told me that
              he had me for shoplifting. And when he arrested me, I didn’t
              have any merchandise. I didn’t have nothing on me. All I had
              was my purse. And he checked - - he searched my purse. He
              got - - he took the money out or whatever; he put everything
              back in after he took it out. And he just - -he arrested me, and
              he took me to the police station and booked me; and, that was
              about it.

Wilson further emphasized in her testimony that she only found out about the plan to shoplift

from Davis once inside the store, and that she took no part in the shoplifting. Additionally,

she stated that she did not see anyone else shoplifting.

¶9.    After the defendant rested her case-in-chief, Officer Wilson testified briefly in the

State’s rebuttal. At the conclusion of the presentation of the evidence, the trial judge’s

reading of the jury instructions to the jury, and closing arguments of counsel, the jury

deliberated and returned a unanimous verdict finding Wilson guilty of felony shoplifting.

The trial judge promptly sentenced Wilson to five years in the custody of the Mississippi

Department of Corrections, with the last year suspended, and five years supervised probation.


                                              7
Wilson also was ordered to pay court costs in the amount of $304.50 and a $1,000 fine. A

judgment of conviction and sentence was likewise entered by the trial judge, and the trial

judge denied Wilson’s subsequently-filed motion for a new trial. Wilson timely appealed the

trial court’s final judgment and order denying post-trial motions.4

¶10.   Wilson presents three issues for this Court to decide: (1) whether the trial court erred

in granting the State’s jury instruction on aiding and abetting; (2) whether the trial court erred

in imposing a felony sentence upon Wilson; and (3) whether the trial court erred in admitting

a co-conspirator’s testimony. We will restate the issues for the sake of clarity in discussion.

       I.      WHETHER THE TRIAL COURT ERRED IN GRANTING
               THE STATE’S JURY INSTRUCTION ON AIDING AND
               ABETTING.

¶11.   We recently addressed this Court's familiar standard of review when considering

challenges to jury instructions. “The Court does not single out any instruction or take

instructions out of context; rather, the instructions are to be read together as a whole.” Spicer

v. State, 921 So. 2d 292, 313 (Miss. 2006) (quoting Parks v. State, 884 So. 2d 738, 746

(Miss. 2004) (citations omitted)). Stated differently:

       “When considering a challenge to a jury instruction on appeal, we do not
       review jury instructions in isolation; rather, we read them as a whole to
       determine if the jury was properly instructed." Burton ex rel. Bradford v.
       Barnett, 615 So. 2d 580, 583 (Miss. 1993). Similarly, this Court has stated that


       4
        Wilson was represented by the Madison County public defender at trial. The trial
court held a hearing following the trial concerning a motion to dismiss the public defender
as Wilson’s counsel at Wilson’s request. The trial court thereafter entered an order granting
the motion, and attorneys Julie Ann Epps and Cynthia Speetjens have represented Wilson
in her appeal to this Court.

                                                8
       "[i]n determining whether error lies in the granting or refusal of various
       instructions, the instructions actually given must be read as a whole. When so
       read, if the instructions fairly announce the law of the case and create no
       injustice, no reversible error will be found." Coleman v. State, 697 So. 2d 777,
       782 (Miss. 1997) (quoting Collins v. State, 691 So. 2d 918 (Miss. 1997)). In
       other words, if all instructions taken as a whole fairly, but not necessarily
       perfectly, announce the applicable rules of law, no error results.

Milano v. State, 790 So. 2d 179, 184 (Miss. 2001).

¶12.   Wilson argues that an improper jury instruction was granted. The objectionable jury

instruction was tendered to the Court as the State’s instruction number S-4, and once given

by the trial judge, the instruction was designated for the record by the trial judge as Jury

Instruction No. 5. This instruction stated:

       The Court instructs the jury that if you find from the evidence that the crime
       of shoplifting was committed in this case; each person who was present,
       consenting to the commission of the crime and doing any act which aided,
       assisted or encouraged the crime, is guilty to the same extent as if he
       committed the whole crime.

(Emphasis added). Wilson argues in her brief to this Court:

       The obvious flaw in the instruction is that it does not require that Christine
       knowingly, intentionally or willfully do an act to aid, assist or encourage the
       crime. Rather, it allows the jury to convict her if the others committed the
       crime, she knew of it but was merely present and did an act which incidentally
       assisted or encouraged the crime even though she may have had not [sic] intent
       to further the crime.

(Emphasis in original). We fail to see the distinction between the language “knowingly,

intentionally or willfully do an act to aid, assist or encourage the crime,” and “present,




                                              9
consenting 5 to the commission of the crime and doing any act which aided, assisted or

encouraged the crime.” In order for Wilson, as a co-conspirator, to be present and consenting

to the commission of the crime of shoplifting, she must have known of the crime to be

perpetrated and intentionally and willfully participated in some element of the completed

crime. We upheld similar language in a jury instruction in Kelly v. State, 493 So. 2d 356,

359 (Miss. 1986):

       The court instructs the jury that each person present at the time, and consenting
       to and encouraging the commission of a crime, and knowingly, wilfully and
       feloniously doing any act which is an ingredient to the crime, or immediately
       connected with it, or leading to its commission, is as much a principal as if he
       had with his own hand committed the whole offense; and if you believe from
       the evidence, beyond a reasonable doubt, that the Defendant, Ike Lee Kelly,
       did wilfully, knowingly, unlawfully and feloniously do any act which is an
       ingredient of the crime of armed robbery or immediately connected with it, or
       leading to its commission, then and in that event, you should find the
       Defendant guilty as charged.

Id. (Emphasis in original).

¶13.   Obviously, in Kelly, we approved of the word “consenting,” and the language of the

jury instruction in the case sub judice, notwithstanding the omission of the phrase

“knowingly, intentionally or willfully,” meets our requirement that a jury instruction not

simply state that a defendant merely approved of the crime. Keeping in mind the admonition

that we must read and consider the jury instructions as a whole to determine if the jury was

properly instructed on the applicable law, in addition to Jury Instruction No. 5 given in



       5
       To consent to an act means “to agree (to do something) . . . . to give permission,
approval, or assent.” Webster’s New World Dictionary 296 (3d college ed.1988).

                                              10
today’s case, the jury also received from the trial court Jury Instruction No. 2, which stated

in pertinent part that the defendant was presumed innocent and before the jury could find the

defendant guilty of the crime charged, the State had to prove each and every element of the

crime beyond a reasonable doubt. Jury Instruction No. 3, the “elements” instruction,

informed the jury that before the jury could find Wilson guilty of the crime of felony

shoplifting, the jury had to find that Wilson “(1) did wilfully, unlawfully and feloniously take

possession of merchandise held by and offered or displayed for sale by Dillard’s Department

Store, (2) having a total value over $250.00, (3) with the intention and purpose of converting

such merchandise to her own use without paying the merchant’s stated price,” and that if the

State “failed to prove any one or more of [these] elements beyond a reasonable doubt,” the

jury “shall find [Wilson] not guilty.”

¶14.   With these various jury instructions before us in the case sub judice, we return to Jury

Instruction No. 5. The first phrase of this instruction states: “The Court instructs the jury that

if you find from the evidence that the crime of shoplifting was committed in this case”; thus,

before the jury could consider the remainder of the instruction, it had to find from the

evidence that the crime of shoplifting had been committed. In order to find that the crime

of felony shoplifting had been committed, the jury had to find that the State had proven

beyond a reasonable doubt each of the three elements of the crime of felony shoplifting as

set out in Jury Instruction No. 3. In reading Jury Instruction No. 5 in conjunction with Jury

Instruction No. 3 and the other jury instructions, if the jury found that the crime of shoplifting

was committed in this case, then the jury was to consider the remainder of Jury Instruction

                                               11
No. 5, which stated: “each person who was present, consenting to the commission of the

crime and doing any act which aided, assisted or encouraged the crime, is guilty to the same

extent as if he committed the whole crime.”

¶15.   Returning to the evidence, which we view in the light most favorable to the jury

verdict, Officer Wilson observed suspicious activities at Dillard’s involving four persons, one

of whom was Christine Wilson. When he approached the location where the four suspects

were standing along with the merchandise which they had “gathered,” they scattered, with

Wilson departing Dillard’s into the mall area along with Harris, who had one of the bags of

stolen merchandise. This bag of merchandise did not have the second tag or label which the

cash register attendant applied to the merchandise upon it’s being “rung up.” Likewise, no

one could produce a sales ticket or receipt for the merchandise found in the bag. Officer

Wilson’s version of the facts as to the contents and status of the merchandise found in the

bags was verified by Ridgeland police officer Kevin Mathis. Certainly, from this evidence,

the jury was justified in finding that the crime of felony shoplifting had been committed and

that Wilson “was present, consenting to the commission of the crime and doing any act

which aided, assisted or encouraged the crime.” Even though she did not stuff every item

of merchandise into the two bags, and personally carry the two bags of merchandise, worth

more than $1,100, from Dillard’s without paying for the merchandise, she clearly acted in

concert with the other three shoplifters. Jury Instruction No. 5 in no way lessened the

responsibility of the jury in returning a guilty verdict against Wilson only if each and every




                                              12
element of the crime of felony shoplifting was proven beyond a reasonable doubt as to

Wilson.

¶16.   With this being said, we acknowledge that our case law reveals that one of the main

concerns raised by defendants to aiding and abetting instructions similar to today’s Jury

Instruction No. 5 is that, contrary to the general “elements of the crime” instruction in which

the jury is always informed that the State must prove beyond a reasonable doubt each and

every element of the crime charged, such an instruction as submitted and given in Kelly

diminishes the responsibility of the jury in that the jury can find a defendant guilty of the

charged offense even if the defendant is proven to be guilty of committing only one element

of the offense. We addressed these concerns in Kelly:

       The appellant contends that this instruction would allow conviction of
       someone who is merely present at the time of the crime but had no intent to
       commit the crime. It is a well-established rule that the jury instructions actually
       given must be read as a whole. Norman v. State, 385 So.2d 1298, 1303 (Miss.
       1980). In the instant case, the court gave instruction S-1, which properly
       instructed the jury as to the elements of the crime, the burden of proof, and the
       requisite intent. Based upon the above, the jury could have properly found the
       appellant guilty of armed robbery from the instructions given. See also White
       v. State, 330 So.2d 877, 879 (Miss. 1976) (jury instruction substantially
       identical to S-2 was approved by this Court). It is suggested that the words
       "element of" be substituted hereafter for "ingredient to" in the instruction.

Kelly, 493 So. 2d at 359.

¶17.   Wilson also argues that because Jury Instruction No. 5 is incompatible with the Fifth

Circuit’s Pattern Jury Instruction on Aiding and Abetting which we prospectively adopted

in Milano v. State, 790 So. 2d 179 (Miss. 2001), the giving of Jury Instruction No. 5 in

today’s case was plain error.      In Milano, this Court upheld Timothy John Milano’s

                                               13
conviction of capital murder and kidnapping. We thoroughly addressed aiding and abetting

instructions, and although lengthy, we quote extensively from Milano since this language is

instructive and critical to today’s discussion on this issue:

       The first issue presented to this Court is whether jury instructions S-13 and S-
       14, read together with the other instructions, fairly announced the law. We find
       that they did.

       Over the objection of defense counsel, the trial court allowed instructions S-13
       and S-14 on aiding and abetting. These instructions are identical, except that
       S-13 applies to capital murder and S-14 applies to kidnaping, the relevant text
       of which is set out below:

              If you believe from the evidence beyond a reasonable doubt that
              the Defendant, Timothy John Milano, did willfully, unlawfully
              and feloniously do any act which is an element of (capital
              murder/kidnaping) with which he is charged, or, immediately
              connected with it, or, leading to its commission, then and in that
              event, you should find the Defendant guilty of (capital
              murder/kidnaping).

       (Emphasis added). The problem with these instructions is that they allow for
       a guilty verdict if the defendant did "any act which is an element" of the crime.

       Contrary to these instructions, there were three instructions preceding these
       two that specifically addressed the burden of the State. For example, S-4, S-6-
       A, and S-7 each provide that "if the State has failed to prove any one or more
       of the above elements beyond a reasonable doubt, then you shall find the
       Defendant not guilty of [the crime]." Each jury instruction that specifically
       addressed the crimes charged also specifically stated that the State must prove
       every element of the crime beyond a reasonable doubt or the defendant is to
       be found not guilty.

       In Hornburger v. State, 650 So. 2d 510, 515 (Miss. 1995), this Court held that
       the jury was improperly instructed by a similar aiding and abetting instruction.
       However, when the instruction was read together with other instructions
       presented to the jury, the instructions adequately informed the jury of the law
       which made the improper instruction harmless error. Id. See also Gray v.
       State, 487 So. 2d 1304, 1308 (Miss. 1986) (when instructions are read

                                              14
together, no error can be predicated on failure of one instruction to set out
properly a necessary element of the crime, where the element was included
correctly in other instructions).

Milano argues that recently similar instructions have been found to be
reversible error. In Berry v. State, 728 So. 2d 568, 571 (Miss. 1999), this Court
examined a jury instruction regarding the crime of aiding and abetting the
transfer of cocaine. The jury instructions in Berry contained language
substantively identical to the above instructions, except that the named crime
was transfer of cocaine. However, in Berry, this Court stated, "in this case,
however, we find that reading the instructions as a whole did not cure the error
resulting from the improper instruction." Id. at 570.

In Lester v. State, 744 So. 2d 757, 760 (Miss. 1999), this Court also reversed
a case based on similar jury instructions. As in Berry, this Court found that,
"there is nothing in the other instructions which cures this." Id. However, in
this case, there were three preceding instructions that properly placed the
burden on the State to prove every element of the crime. The jury was fully
instructed that if all the elements were not proven beyond a reasonable doubt,
Milano was to be found not guilty. Accordingly, the jury could not have been
confused when all instructions were considered and read together. We thus
find the error harmless.

The same problematic jury instruction used in Hornburger, Berry, and Lester
is once again before this Court. To avoid any further confusion, today, we
prospectively adopt the Fifth Circuit's Pattern Jury Instruction on Aiding and
Abetting due to continuing litigation and confusion over this issue. The use of
this instruction should cure future problems regarding this issue. The
instruction is as follows:

       The guilt of a defendant in a criminal case may be established
       without proof that the defendant personally did every act
       constituting the offense alleged. The law recognizes that,
       ordinarily, anything a person can do for himself may also be
       accomplished by that person through the direction of another
       person as his or her agent, by acting in concert with, or under the
       direction of, another person or persons in a joint effort or
       enterprise.

       If another person is acting under the direction of the defendant
       or if the defendant joins another person and performs acts with

                                       15
              the intent to commit a crime, then the law holds the defendant
              responsible for the acts and conduct of such other persons just
              as though the defendant had committed the acts or engaged in
              such conduct.

              Before any defendant may be held criminally responsible for the
              acts of others it is necessary that the accused deliberately
              associate himself in some way with the crime and participate in
              it with the intent to bring about the crime.

              Of course, mere presence at the scene of a crime and knowledge
              that a crime is being committed are not sufficient to establish
              that a defendant either directed or aided and abetted the crime
              unless you find beyond a reasonable doubt that the defendant
              was a participant and not merely a knowing spectator.

              In other words, you may not find any defendant guilty unless
              you find beyond a reasonable doubt that every element of the
              offense as defined in these instructions was committed by some
              person or persons, and that the defendant voluntarily
              participated in its commission with the intent to violate the law.

       Fifth Cir. Pattern Jury Instructions (Criminal) 2.06 (Aiding and Abetting)
       (Agency) (1998).

       For the above reasons, we find that jury instructions S-13 and S-14 were
       erroneous. However, read with the other instructions which properly stated the
       law and required the jury to find that all elements of the offense had been
       proven before Milano could be found guilty, this error was harmless.

Milano, 790 So. 2d at 184-185, ¶¶15-22 (Miss. 2001) (emphasis in original).

¶18.   In sum, the jury instructions in today’s case, when read as a whole, clearly required

the jury to find Wilson guilty only if the State met its burden of proof on each element of the

crime. Again, our longstanding rule is to read jury instructions as a whole to determine if the

jury was erroneously instructed. Savory, 954 So. 2d at 932. Even though Jury Instruction

No. 5 was not in the form which we prospectively adopted in Milano, from the record before

                                              16
us, we find no error, much less reversible error, in the trial court’s giving of Jury Instruction

No. 5, when we read this instruction along with all the other jury instructions which were

given. See also Duncan v. State, 939 So. 2d 772, 779-81 (Miss. 2006) (trial court held not

in error for granting jury instruction virtually identical to one approved in Milano);

Brengettcy v. State, 794 So. 2d 987, 997-98 (Miss. 2001) (post-Milano decision of this Court

approving aiding and abetting instruction not in the form adopted in Milano, distinguishing

Berry v. State, 728 So. 2d 568, 570-71 (Miss. 1999), and Liggins v. State, 726 So. 2d 180,

184-85 (Miss. 1998)).6 As we stated in Brengettcy, “[t]he error which led to reversal in

Liggins is simply not present here.” Brengettcy, 794 So. 2d at 998.

¶19.   While we again remind the trial bench and bar of the aiding and abetting instruction

which we adopted in Milano in order to cure future problems, we find, based on the reasons

stated, that this issue is without merit.

       II.     WHETHER THE TRIAL COURT ERRED IN IMPOSING
               A FELONY SENTENCE UPON WILSON.

¶20.   “This issue presents a question of law, for which the standard of review is de novo.”

DeLoach v. State, 722 So. 2d 512, 518 (Miss. 1998) (citing Rose v. State, 586 So. 2d 746,

751 (Miss. 1991); Harrison County v. City of Gulfport, 557 So. 2d 780, 784 (Miss. 1990)).




       6
       Contrary to today’s case, the objectionable instructions in Berry and Liggins clearly
allowed the jury to find the defendants guilty if only one element of the principal offense
was proven.

                                               17
¶21.   Wilson argues that the trial court erred in sentencing her, thus entitling her to a new

sentencing hearing. Wilson was indicted on May 23, 2003, for the November 4, 2002, crime

of felony shoplifting pursuant to Mississippi Code Annotated section 97-23-93, which stated:

       A person convicted of shoplifting merchandise for which the merchant’s stated
       price exceeds Two Hundred Fifty Dollars ($250.00) shall be guilty of a felony
       and, upon conviction, punished as provided in Section 97-17-41 for the offense
       of grand larceny.

Miss. Code Ann. § 97-23-93(7) (2002). The statute subsequently was amended by the

Legislature after Wilson was indicted but prior to her trial. Miss. Code Ann. § 97-23-93, as

amended, states:

       A person convicted of shoplifting merchandise for which the merchant’s stated
       price exceeds Five Hundred Dollars ($500.00) shall be guilty of a felony and,
       upon conviction, punished as provided in Section 97-17-41 for the offense of
       grand larceny.

Miss. Code Ann. § 97-23-93 (7) (Rev. 2006). This amendment effectively made the charge

of shoplifting merchandise over $250 in value but not more than $500 in value to be a

misdemeanor rather than a felony. Wilson argues that, according to Daniels v. State, 742 So.

2d 1140 (Miss. 1999), she should be sentenced as a misdemeanant instead of a felon. Wilson

further argues that the jury made a finding only that she shoplifted merchandise with a value

of more than $250 rather than the required $500 based upon Jury Instruction No. 3.

¶22.   Wilson’s argument is misplaced. In Daniels, the defendant committed the crime of

capital rape, which at the time of the commission of the crime, carried a mandatory

punishment of death or life imprisonment. Id. at 1144. The statute was amended effective

from and after July 1, 1998, and the sentencing in Daniels occurred on August 24, 1998.

                                             18
Based on prior decisions of this Court, the trial court was under the belief that it had to

sentence the defendant under the statute in effect at the time of the commission of the crime.

Id. at 1144-45. In applying Mississippi Code Annotated section 99-19-33, and in an effort

to clarify our prior cases, we stated:

       [W]hen a statute is amended to provide for a lesser penalty, and the
       amendment takes effect before sentencing, the trial court must sentence
       according to the statute as amended. Any precedent holding otherwise is in
       error.

Id. at 1145 (emphasis added).       However, section 99-19-33 and Daniels stand for the

proposition that when the statutory penalty for a particular crime is legislatively reduced after

the date of the commission of the crime but before the date of sentencing, the trial court must

sentence the defendant under the amended statute. Such a proposition is a far cry from

today’s case where we are not dealing with an amended sentencing statute, but instead an

amended statute as it relates to the elements of the criminal offense. One of the elements of

the amended felony shoplifting statute now requires that the stolen merchandise have a stated

price which exceeds $500 in value, as opposed to $250 in value. Thus section 99-19-33 and

Daniels are totally irrelevant to today’s discussion. In the case sub judice, only the elements

of the crime of felony shoplifting changed and not the penalty, which has remained the same

during this amendment process. Wilson was properly convicted based upon Mississippi

Code Annotated section 97-23-93 as it existed on November 4, 2002, the date of the crime.

This issue is without merit.




                                               19
       III.   WHETHER THE TRIAL COURT ERRED IN ADMITTING
              IMPERMISSIBLE HEARSAY.

¶23.   "Relevancy and admissibility of evidence are largely within the discretion of the trial

court, and reversal may be had only where that discretion has been abused." McIntosh v.

State, 917 So. 2d 78, 82 (Miss. 2005) (quoting Price v. State, 898 So. 2d 641, 653 (Miss.

2005); White v. State, 742 So. 2d 1126, 1134 (Miss. 1999)). "Furthermore, the trial court's

discretion must be exercised within the scope of the Mississippi Rules of Evidence, and

reversal will be appropriate only when an abuse of discretion resulting in prejudice to the

accused occurs." Id. (quoting Price, 898 So. 2d at 653; White, 742 So. 2d at 1134). "A trial

judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence.

Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will

not reverse this ruling." Id. (quoting Price, 898 So. 2d at 653; Walker v. State, 878 So. 2d

913, 915 (Miss. 2004); Jefferson v. State, 818 So. 2d 1099, 1104 (Miss. 2002)).

¶24.   Wilson finds objectionable Harris’s testimony concerning what the three women were

doing inside the store while he was outside the store, as well as Wilson’s knowledge of the

overall plan to commit the crime of shoplifting. According to Wilson, this was improper

testimony, to which Wilson’s counsel objected. Wilson argues in her brief to this Court:

       [T]he prosecution introduced no evidence whatsoever to show how Harris
       came to his conclusion about [Wilson]’s knowledge. For example, there is no
       evidence that the four discussed the plan while en route to Dillard’s. There is
       no evidence that Harris’ [sic] conclusion is based on anything other than
       unsupported opinion or that it was not derived from what someone else, rather
       than [Wilson], told him.



                                             20
Thus, Wilson argues that Harris’s testimony was inadmissible hearsay and that no hearsay

exception exists to allow this testimony to be heard by the jury. Wilson further argues that

this inadmissible hearsay testimony was so prejudicial as to warrant a new trial because the

testimony was the only direct evidence of Wilson’s knowledge of and intent to shoplift.

¶25.   We first note that while Wilson complains of Harris’s inability to see what the three

women were doing inside the store since Harris was “outside” the store, the fact is that Harris

was in the mall area looking back into the store. Just because Harris was not physically

inside the store, Harris was not prevented from observing activity inside the store. We note

a portion of Harris’s testimony, to which there was no objection:

              Q. Well, what did you observe [Wilson] doing?
              A. Pulling the clothes.
              Q. And, then, did what with the clothes?
              A. I don’t know what she did with them. She was just with the
              other girls pulling the clothes.
              Q. Did you see who put the clothes in the bag?
              A. No, because I was outside.

From this testimony, the jury reasonably could have inferred from the evidence that Harris

had at least some view of the activities occurring in the store. On the other hand, the record

reveals that Harris testified on several occasions that he was not in the store, and thus he did

not see the actions of any of the three females. However, the cold, hard facts are that when

we consider Officer Wilson’s eye-witness testimony as to what he observed the suspects

doing, including Christine Wilson, Harris’s testimony was cumulative, at best.             The

admissibility of evidence “is left to the sound discretion of the trial court within the

boundaries of the Mississippi Rules of Evidence,” and on appeal, the trial court’s ruling on

                                              21
the admissibility of evidence will not be deemed to be error unless the trial court has abused

its discretion. Harris v. State, 861 So. 2d 1003, 1018 (Miss. 2003) Additionally, “[s]uch

error will warrant reversal only when the abuse of discretion has resulted in prejudice to the

accused.” Id. (citing Parker v. State, 606 So. 2d 1132, 1137-38 (Miss. 1992)).

¶26.   Concerning the plan to shoplift, Harris testified, inter alia, over objection, that “[i]t

was all our plan” to steal, that “[w]e all went to steal,” and that everybody in the car

(including Wilson) knew about the plan “[b]ecause every - - everybody know [sic] that we

work together like that, you know. They know - - they know [sic] exactly what we were

going to the store to do. We wasn’t [sic] going to watch no movie.” We wasn’t [sic] going

to buy nothing.”

¶27.   In Williamson v. State, 512 So. 2d 868, 878-79 (Miss. 1987), we stated:

       In Peoples v. State, 501 So. 2d 424 (Miss. 1987), we again recognized that
       among co-conspirators there must be a recognition that they are entering into
       a common plan knowingly intending to further its common purpose. There
       need not be a formal or express agreement and the existence of any such
       agreement necessarily may be inferred from the circumstances, particularly the
       declarations, acts, and conduct of the alleged conspirator. Mere association
       with a conspirator is not enough -- "there must exist some evidence that the
       defendant has associated himself with the venture in some fashion, participated
       in it as something that he wished to bring about, or sought by his actions to
       make it succeed." Peoples, 501 So. 2d at 428. One conspirator need not be
       aware of all the details of the conspiracy in order to be found to have agreed
       to participate in the conspiracy. U.S. v. Riccobene, 709 F.2d 214, cert. denied,
       464 U.S. 849, 104 S. Ct. 157, 78 L. Ed. 2d 514 (3rd Cir. 1983); U.S. v.
       Jannotti, 729 F.2d 213 (5th Cir. 1984). Once a conspiracy is established co-
       conspirators [sic] statements made in the course of and in furtherance of the
       conspiracy are admissible against each conspirator, notwithstanding the
       confrontation clause or hearsay rule. Mitchell v. State, 495 So. 2d 5, 11 (Miss.
       1986); see also, Miss. R. Evi[d]. 801(d)(2) (E).


                                              22
Id. at 878-79. With this in mind, there was sufficient evidence in the record that a conspiracy

to shoplift existed among Harris, Wilson and the other two females. From the evidence and

the reasonable inferences which may be drawn from the evidence, all viewed in the light

most favorable to the State of Mississippi, the jury was informed that: (1) Wilson knew one

of the other two females as Shameka; (2) on the day in question, Wilson was at Shameka’s

house when they decided to go to the mall; (3) when they left in Shameka’s car headed to the

mall, Shameka mentioned there were two friends (Harris and the other woman) who wanted

to go to the mall with them; (4) Harris, Shameka, Wilson and the unknown female all went

into Dillard’s; (5) according to Officer Wilson, all three females were gathering merchandise

and carrying the merchandise to a common location in the store, and when Officer Wilson

approached the four individuals, “they split up” with two of the females heading toward one

door to the parking lot, and the male (Harris) and the other female (Wilson) heading out into

the mall area; and (6) the bag carried out by Harris when he and Wilson exited the store

contained stolen merchandise.

¶28.   All testimony offered by Harris as to who knew what regarding the plan to shoplift,

related to acts and conduct which occurred “during the course and in furtherance of the

conspiracy” at a time when Wilson, from the evidence and reasonable inferences drawn from

the evidence, could be deemed to be a co-conspirator. Williamson, 512 So. 2d at 878. See

also Bush v. State, 895 So. 2d 836, 845-47 (Miss. 2005).

¶29.   With this having been said, we disagree with the State’s assertion that Harris’s “we-

all-went-to-steal” testimony was admissible under Mississippi Rules of Evidence

                                              23
801(d)(2)(E), concerning statements by a co-conspirator during the course and in furtherance

of the conspiracy. We emphasize here that Wilson offered a hearsay objection to Harris’s

testimony that: “[i]t was all our plan” to steal, that “[w]e all went to steal,” and that

everybody in the car knew about the plan “[b]ecause every - - everybody know [sic] that we

work together like that, you know. They know - - they know [sic] exactly what we were

going to the store to do. We wasn’t [sic] going to watch no movie.” We wasn’t [sic] going

to buy nothing.” Simply stated, this testimony is not hearsay under Mississippi Rules of

Evidence. 801(a)(1) or (2). Further, the evidence was both relevant and admissible under

Mississippi Rules of Evidence 401, 402 and 403, so that the jury could consider this evidence

along with the other evidence, including Officer Wilson’s eye-witness testimony as to what

he personally observed the three women doing inside Dillard’s.

¶30.   Based on these reasons, the trial court did not abuse its discretion in allowing Harris’s

testimony as to the “plan to steal.” We thus find this issue to be without merit.

                                      CONCLUSION

¶31.   For the reasons stated, the Madison County Circuit Court’s judgment of conviction

and sentence entered against Christine Wilson is affirmed.

¶32. CONVICTION OF FELONY SHOPLIFTING AND SENTENCE OF FIVE (5)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH THE LAST YEAR SUSPENDED, AND FIVE (5) YEARS
SUPERVISED PROBATION, WITH CONDITIONS, AFFIRMED. APPELLANT
SHALL PAY COURT COSTS IN THE AMOUNT OF $304.50 AND A FINE OF
$1,000.00.




                                              24
    SMITH, C.J., WALLER, P.J., EASLEY, RANDOLPH AND LAMAR, JJ.,
CONCUR. DICKINSON, J., CONCURS IN RESULT ONLY. DIAZ, P.J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.


       DIAZ, PRESIDING JUSTICE, DISSENTING:

¶33.   I cannot join the majority for a number of reasons: (1) the aiding and abetting

instruction was in error and saying otherwise overrules our precedent in Milano v. State; (2)

Harris’s testimony was inadmissible because it was without foundation; and (3) it was error

to sentence Wilson under the prior statute.

       (1) The Trial Court Erred by Failing to Give the Proper Aiding and
       Abetting Instruction.

¶34.   First, no amount of quoting Milano can hide that the majority has overruled that case

in favor of two-decades-old precedent. Milano clearly states that the aiding and abetting jury

instructions were “erroneous.” Milano v. State, 790 So. 2d 179, 185 (Miss. 2001). Today’s

opinion, on the other hand, finds “no error.” Thus, the Court’s reminder to use the Fifth

Circuit’s instruction means nothing if we will find no error at all.

¶35.   Second, Kelly cannot be interpreted to find that the jury instruction in question “meets

our requirement that a jury instruction not simply state that a defendant merely approved of

the crime.” Kelly v. State, 493 So. 2d 356 (Miss. 1986). In Kelly, the instruction at least

required that the defendant do “any act which is an ingredient to the crime” with the requisite

intent (i.e., “knowingly, wilfully and feloniously”). The jury instructions in the present case

merely require that the defendant do “any act,” intended or not: “each person who was

present, consenting to the commission of the crime and doing any act which aided, assisted

                                              25
or encouraged the crime, is guilty to the same extent as if he committed the whole crime.”

(emphasis supplied).

¶36.   It is simply not enough that the defendant know of and approve of the crime to be

guilty as an accessory. Vaughn v. State, 712 So. 2d 721, 724 (Miss. 1998) (citing Griffin

v. State, 293 So. 2d 810, 812 (Miss. 1974)). One who is an accessory before the fact or one

who aids and abets must “do something that will incite, encourage, or assist the actual

perpetrator in the commission of the crime . . . [or] participate in the design of the felony.”

Id. (quoting Malone v. State, 486 So. 2d 360, 363-64 (Miss. 1986)).          Because the jury

instruction only required that Wilson be present and approve of the crime, the instruction was

erroneous, and the trial court should have given the proper aiding and abetting instruction

adopted in Milano. Milano, 790 So. 2d at 185 (quoting Fifth Cir. Pattern Jury Instructions

(Criminal) 2.06 (Aiding and Abetting) (Agency) (1998)).

       (2) Harris’s Testimony was Inadmissible.

¶37.   I agree that Harris’s testimony that “everybody knew” they were shoplifting was not

hearsay but for different reasons. First, hearsay must be a statement, and “a ‘statement’ is

(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him

as an assertion.” M.R.E. 801(a). Harris never testified that anyone made any statement

about their intentions to shoplift or that there was any sort of nonverbal conduct evidencing

such an intent. Second, even if a statement were at issue, Harris’s statements were made on

the stand, not “during the course and in furtherance of the conspiracy,” as required under

Rule 801(d)(2)(E).

                                              26
¶38.   The issue here is that there was simply no foundation for Harris’s testimony.7 He was

offering an opinion as to every person's state of mind before the crime, but he offered nothing

upon which he could have reasonably relied for this opinion. “A witness may not testify to

a matter unless evidence is introduced sufficient to support a finding that he has personal

knowledge of the matter.” M.R.E. 602. Additionally, “testimony in the form of opinions or

inferences is limited to those opinions or inferences which are rationally based on the

perception of the witness . . . .” M.R.E. 701. Until the crime was underway, there was no

rational basis for Harris’s opinion that they “all went to steal,” and the objections should have

been sustained.

¶39.   The majority also confuses the abuse-of-discretion standard with the standard used

for weight or sufficiency of the evidence arguments. The majority finds no reversible error

by “considering the evidence in the light most favorable to the verdict” and finding there was

“sufficient evidence” to support a conviction. This is not the standard. The question is

whether the trial judge abused his discretion, resulting in prejudice to the accused. Parker

v. State, 606 So. 2d 1132 (Miss. 1992) (citations omitted). The trial judge must also exercise

his or her discretion within the rules of evidence. Id. Because there was no foundation for

Harris’s testimony that Wilson intended to shoplift, in violation of Rules 602 and 701, and




       7
        While the majority notes that the defense objected based on hearsay, there were also
objections because the questions called for speculation as they were based on facts not in
evidence.

                                               27
because this goes to prove an essential element of the crime, Wilson was certainly prejudiced

by the admission of this testimony.

       (3) Wilson Should be Sentenced Under the Amended Statute.

¶40.   Finally, the majority finds Section 99-19-33 and Daniels v. State “totally irrelevant”

to and a “far cry” from the present case because the amendment changed an element of the

crime and not the sentence. In my opinion, the amendment has everything to do with

sentencing, and it was error for Wilson to be sentenced under the prior statute. However,

because the evidence valued the goods at roughly $1,100, the jury could not have reasonably

found that the value was less than $500, and thus, the error in sentencing was harmless.

                                        Conclusion.

¶41.   Although the error in sentencing was harmless, the errors in the jury instructions and

the admission of Harris’s testimony as to Wilson’s state of mind were significant and warrant

reversal. For these reasons, I would reverse and remand the case for a new trial.

       GRAVES, J., JOINS THIS OPINION.




                                             28
