                       IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2004-KA-01412-SCT

ANTHONY JONES

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                           06/15/2004
TRIAL JUDGE:                                HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED:                  WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     THOMAS PERRY SETSER
ATTORNEYS FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                            BY: DEIRDRE McCRORY
DISTRICT ATTORNEY:                          G. GILMORE MARTIN
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                AFFIRMED - 02/02/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       CARLSON, JUSTICE, FOR THE COURT:

¶1.    On October 28, 2003, a Warren County grand jury indicted Anthony Jones on charges

of aggravated assault, kidnapping, and unlawful possession of a firearm after having been

convicted of a felony. Jones was also charged as a habitual offender pursuant to the provisions

of Miss. Code Ann. Section 99-19-81.       A subsequent trial resulted in the jury finding Jones

guilty on all three counts of the indictment, and circuit court Judge Frank G. Vollor then

sentenced Jones as a habitual offender to serve consecutive terms of twenty, thirty and three

years, respectively, in the custody of the Mississippi Department of Corrections.   After Judge

Vollor denied his motion for a judgment notwithstanding the verdict, or, in the alternative, for
a new trial, Jones perfected this appeal, alleging that multiple errors occurred at his trial.

Finding Jones’s assignments of error to be without merit, we affirm the final judgment of

conviction and sentences imposed by the Circuit Court of Warren County.

                         FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.      Taquelia Thomas was employed as a transportation driver for the Mississippi

Department of Human Services (MDHS) and her friend, Keisha Smith, was one of Thomas’s

regular passengers.       On September 6, 2003, Smith requested that Thomas drive over to her

apartment.     Unbeknownst to Thomas, her ex-boyfriend, Anthony Jones, was also at Smith’s

apartment, and Jones had convinced Smith to invite Thomas to come to Smith’s apartment.

When Thomas arrived, Smith walked out to meet her on the street and engaged her in

conversation through the van’s driver side window.       According to the testimony of both Smith

and Thomas, before they knew what was happening, Jones rushed the van and began climbing

his way through the open driver’s side window.          In an effort to escape Jones’s aggression,

Thomas placed the MDHS van in reverse, backed down the street, and drove over a curb almost

striking a light pole.

¶3.      Despite Thomas’s efforts to get away, Jones was able to secure himself in the passenger

seat of the van.         Although the struggle inside the van continued from the time the van left

Smith’s residence until the time it returned, Thomas managed to drive the van back up the street

and in front of Smith’s house, where a group of onlookers had gathered. Testimony reveals that,

upon their return, Jones had Thomas in a headlock and was trying to convince her to drive away.

According to Smith, it was at this point that she intervened by reaching into the stopped van and

                                                   2
taking the keys out of the ignition. Smith testified further that she ultimately talked Jones into

letting Thomas go and leaving the neighborhood. While Jones admits to climbing into the van,

he maintains that once he saw Thomas was frightened, he apologized to her and left.

¶4.    On the following day, September 7, 2003, Thomas went to her mother’s house at 2706

Washington Street.     According to Thomas’s testimony, she was leaving her mother’s house

when she was accosted by Jones who grabbed her, placed a gun to the left side of her head and

threatened to shoot her if she screamed. Thomas maintains that Jones then snatched her keys,

and physically forced her into her van against her will. Importantly, Thomas testified that she

did not want to get into the van with Jones, but did so because Jones had a gun to her head and

was holding her around the neck.

¶5.    While making his escape, with Thomas in the passenger seat next to him, Jones

hurriedly backed out of the driveway. As Jones reached the street and prepared to place the van

into drive, Thomas escaped. This brief pause at the end of her mother’s driveway had afforded

Thomas the opportunity to jump from the passenger door and run from the van.

¶6.    Eddie Butler was driving south on Washington Street that day when he saw Thomas’s

MDHS van backing out of her mother’s driveway.            According to Butler’s account, he saw

Thomas jump from the van and take off running in a direction that was parallel to the cars on

the street, but not in traffic. Butler’s testimony revealed that he then saw the van swing back

around and head east so as to catch Thomas, and Butler further noted that it looked like the van

driver was really trying to hurt somebody. On re-direct examination, Butler specifically stated

that “the van swung back like a perfect hit, to catch the young lady with the hood....” Butler

                                                  3
likewise testified that Jones hit Thomas with the van, delivering a blow that picked Thomas up

on to the hood of the van and pinned her against the windshield. Butler also testified that Jones

drove the van, with Thomas on the hood, into a brick and wrought iron fence.

¶7.     After Butler exited his truck and ran over to assist Thomas, he found Thomas laying in

between the brick support columns of the fence, covered in rubble.             Butler thought she was

dead.   He noted that the truck ultimately careened into a parking lot in close proximity to the

accident scene.

¶8.     Johnny Thomas (no relation to the victim, Taquelia Thomas) was also traveling south

on Washington Street at the time of the incident in question and had stopped to help. Thomas

testified that when he came upon the scene, he saw a man standing over a woman with a gun.

Recognizing the man to be the son of Billy Ray Warren, Mr. Thomas approached Jones and

tapped him on the shoulder. He noted that when he did this Jones quickly fled the scene.

¶9.     Taquelia Thomas was taken by ambulance to the hospital, where she spent six to seven

weeks recuperating from her injuries.     It is without dispute that the injuries Thomas suffered

were severe. Thomas had abrasions on her head just under her hairline and on her left arm. She

sustained a clavicle fracture, a severe pelvic injury, a broken wrist, lacerated kidneys and lungs

and had to have a piece of the wrought iron fence removed from her leg.

¶10.    Anthony Jones’s testimony was inconsistent with the events as recounted by the State’s

witnesses.    Jones testified that Thomas entered the van voluntarily and jumped out.

Importantly, Jones maintained that he never displayed a gun to Thomas and that he did not know

that he had hit Thomas with the MDHS van until he got out of the wrecked van.

                                                  4
                                             DISCUSSION

        I.      WHETHER THE CIRCUIT COURT ERRED BY DENYING
                JONES’S MOTION FOR A JUDGMENT NOTWITHSTANDING
                THE VERDICT, OR IN THE ALTERNATIVE, FOR A NEW TRIAL

¶11.    After the jury returned a verdict finding Jones guilty of aggravated assault, kidnapping

and possession of a firearm by a convicted felon, the trial judge imposed consecutive

sentences of twenty, thirty and three years, respectively, all to be served without the benefit

of parole, probation or early release, pursuant to the provisions of Miss. Code Ann. Section

99-19-81.      Jones filed a motion for a judgment notwithstanding the verdict, or in the

alternative, for a new trial, which motion was subsequently denied by the trial court.

¶12.    Jones appropriately combined his request for a j.n.o.v. and a new trial into one motion.

However, while both the trial court and, ultimately, the appellate court, might be called upon

to address a post-trial motion containing both a request for a judgment notwithstanding the

verdict, and an alternative request for a new trial, we certainly recognize the altogether

different legal standards applied to each.      A motion for a judgment notwithstanding the verdict

tests the legal sufficiency of the evidence supporting the verdict while the motion for a new

trial is admittedly “an altogether different animal.” Jesco, Inc. v. Whitehead, 451 So.2d 706,

713-14 (Miss. 1984) (Robertson, J., specially concurring).            Recently, in Dilworth v. State,

909 So.2d 731 (Miss. 2005), we reiterated the standard applied to a motion challenging a

verdict based on the legal sufficiency of the evidence:

        In Carr v. State, 208 So.2d 886, 889 (Miss. 1968), we stated that in considering
        whether the evidence is sufficient to sustain a conviction in the face of a motion
        for directed verdict or for judgment notwithstanding the verdict, the critical

                                                     5
        inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the]
        accused committed the act charged, and that he did so under such circumstances
        that every element of the offense existed; and where the evidence fails to meet
        this test it is insufficient to support a conviction.’ However, this inquiry does
        not require a court to
                 ‘ask itself whether it believes that the evidence at the trial
                 established guilt beyond a reasonable doubt.’ Instead, the relevant
                 question is whether, after viewing the evidence in the light most
                 favorable to the prosecution, any rational trier of fact could have
                 found the essential elements of the crime beyond a reasonable
                 doubt.
        Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
        (citations omitted) (emphasis in original).        Should the facts and inferences
        considered in a challenge to the sufficiency of the evidence ‘point in favor of
        the defendant on any element of the offense with sufficient force that
        reasonable men could not have found beyond a reasonable doubt that the
        defendant was guilty,’ the proper remedy is for the appellate court to reverse and
        render[, i.e. reverse and discharge]. Edwards v. State, 469 So.2d 68, 70 (Miss.
        1985) (citing May v. State, 460 So.2d 778, 781 (Miss. 1984)); see also Dycus
        v. State, 875 So.2d 140, 164 (Miss. 2004). However, if a review of the evidence
        reveals that it is of such quality and weight that, ‘having in mind the beyond a
        reasonable doubt burden of proof standard, reasonable fair-minded men in the
        exercise of impartial judgment might reach different conclusions on every
        element of the offense,’ the evidence will be deemed to have been sufficient.

Dilworth v. State, 909 So.2d 731, 736 (Miss. 2005) (quoting Bush v. State, 895 So.2d 836,

843 (Miss. 2005)).

¶13.    By contrast, in considering a motion for a new trial, different criteria must be

considered and applied. “That as a matter of law the motion for judgment notwithstanding the

verdict must be overruled and denied in no way affects and little informs the trial judge

regarding his disposition of the motion for a new trial.” Jesco, 451 So.2d at 714 (Robertson,

J., specially concurring).     As with a j.n.o.v. motion, our law is well-settled concerning our

review of the trial court’s denial of a motion for a new trial:


                                                       6
        A motion for a new trial, however, falls within a lower standard of review than
        does that for a judgment notwithstanding the verdict. Id. at 127.1 A motion for
        a new trial simply challenges the weight of the evidence. Id. This Court has
        explained that it will reverse the trial court’s denial of a motion for a new trial
        only if, by doing so, the court abused its discretion. Id. (quoting Gleeton v.
        State, 716 So.2d at 1088). “We will not order a new trial unless convinced that
        the verdict is so contrary to the overwhelming weight of the evidence that, to
        allow it to stand, would be to sanction an unconscionable injustice.” Id. (quoting
        Groseclose v. State, 440 So.2d 297, 300 (Miss. 1983)). This Court has also
        explained that factual disputes are properly resolved by a jury and do not
        mandate a new trial. McNeal v. State, 617 So.2d 999, 1009 (Miss. 1993).
        Holloway v. State, 809 So.2d 598, 605-06 (¶¶ 21-22) (Miss. 2000).

Ginn v. State, 860 So.2d 675, 685 (Miss. 2003). See also Bush v. State, 895 So.2d 836, 844

(Miss. 2005), and URCCC 10.05.

¶14.    As in any case in which the trial court has appropriately denied a motion for a directed

verdict, and allowed the case to be submitted to the jury, our case today no doubt has

conflicting testimony.   However, our mandated appellate review does not require, indeed, does

not permit, this Court to decide from conflicting evidence what verdict we would have

rendered had we been the jury deciding this case.     In applying the appropriate standard when

considering whether the trial court properly denied a motion for a new trial, reversal is

warranted only if the trial court abused its discretion in denying the motion for new trial.

Dilworth v. State, 909 So.2d 731, 737 (Miss. 2005) (citing Howell v. State, 860 So.2d 704,

764 (Miss. 2003); Edwards v. State, 800 So.2d 454, 464 (Miss. 2001); Sheffield v. State,

749 So.2d 123, 127 (Miss. 1999)).        Accordingly, this Court defers to the discretion of the

trial judge, and “[w]e will not order a new trial unless convinced that the verdict is so contrary

        1
         Sheffield v. State, 749 So.2d 123 (Miss. 1999).

                                                7
to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an

unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 300 (Miss. 1983).         Reversal

according to the above stated standard, unlike reversal based on insufficient evidence, does not

imply that acquittal was the only proper verdict. Bush v. State, 895 So.2d 836, 844 (Miss.

2005). This being said, the power to grant a new trial should be invoked only in exceptional

cases where the evidence preponderates heavily against the verdict. Id. (citing Amiker v. Drugs

for Less, Inc., 796 So.2d 942, 947 (Miss. 2000)).

¶15.   Having set forth the standards under which a trial court proceeds when considering the

sufficiency of the proof submitted at trial and the viability of the jury verdict rendered, we now

consider what the State was required to prove at trial in order to make out its case for a

conviction.   Accordingly, because the law presumes every person charged with a criminal

offense is innocent, the prosecution carries the burden of proving all elements of the charged

offenses beyond a reasonable doubt. It follows that this presumption of innocence attends the

defendant throughout the trial and prevails at its close unless and until this presumption is

overcome by evidence which satisfies the jury of the defendant’s guilt beyond a reasonable

doubt. Jones v. State, --- So.2d ---, 2005 WL 1712995 (Miss. 2005).

¶16.   The first count charged Jones with aggravated assault.     The State was thus required to

present evidence showing that Jones did purposefully or knowingly cause serious bodily harm

to Thomas by running over her with the MDHS van in violation of Miss. Code Ann. Section 97-

3-7(2)(b). In choosing to charge Jones under section (b) of the aggravated assault statute, the



                                                8
State assumed the burden of proving that Jones intended to hit Thomas with the van. While it

was uncontested that Jones was driving the van and that Thomas suffered life-threatening

injuries when she was struck by the van, a factual dispute arose at trial as to whether Jones

aimed the van at Thomas before striking her, or whether Jones inadvertently swerved into

Thomas while trying to close the passenger door which Thomas had left ajar after jumping out

of the van.      Jones claims that the State failed to prove its case and that a judgment

notwithstanding the verdict, or in the alternative, a new trial, was appropriate since the State had

allegedly failed to prove Jones’s specific intent.

¶17.    In Harris v. State, 642 So.2d 1325 (Miss. 1994), a drug dealer attempted to run over

an undercover police officer with a car in an effort to escape a drug bust. The defendant was

charged with attempted aggravated assault, and the State undertook the burden of proving the

drug dealer’s specific intent in order to secure conviction.   Focusing on the intent element, this

Court stated “[i]ntent, being a state of mind, is rarely susceptible of direct proof, but ordinarily

must be inferred from the acts and conduct of the party and the facts and circumstances

attending them.” Id. at 1327 (citing Thames v. State, 221 Miss. 573, 577, 73 So.2d 134, 136

(1954)).

¶18.    In Harris, just as with today’s case, there was undisputed evidence that Harris did hit

a police officer; however, there was disputed evidence as to whether Harris did so

intentionally.   Faced with this conflict in the evidence, this Court stated that the evidence

adduced was such that fair-minded jurors might reach different conclusions as to the issue of

intent. 642 So.2d at 1327.       Accordingly, Harris’s version that he never intended to run over

                                                     9
anyone, and never knew he had, when contrasted with testimony that Harris left his lane of

travel to accomplish the hit and even attempted to run over the police officer a second time,

created a disputed question of fact for evaluation by the jury. Id.

¶19.    Turning to today’s case, the State supported its charge of aggravated assault against

Jones with the eyewitness testimony of Eddie Butler. Butler testified that he saw the MDHS

van pull out of the driveway at the house of Thomas’s mother.         Butler also observed Thomas

jump out of the van and the van turning back around heading east to catch Thomas. Butler

specifically observed that the van swung back in such a fashion so as to accomplish a “perfect

hit” on the woman in flight.

¶20.    Butler’s testimony, when coupled with the undisputed facts, clearly proved the element

of intent necessary to support the State’s charge of aggravated assault. Moreover, based on all

the testimony offered at trial, a juror could easily conclude beyond a reasonable doubt that

Jones intentionally hit Thomas with the van. Thus, a grant of a j.n.o.v. or a new trial would have

been inappropriate because the State supported all elements of the offense with sufficient

evidence.

¶21.    The second count of kidnapping required the State to prove that Jones seized Thomas

with the intent to confine or imprison her against her will pursuant to Miss. Code Ann. Section

97-3-53.     Jones maintains that the State’s only evidence of kidnapping is the testimony of

Thomas, which was directly contradicted by Jones and is not credible inasmuch as Thomas has

a history of shoplifting and providing false information. Accordingly, he argues that the weight




                                                   10
of the evidence does not permit a reasonable fair minded jury to believe that Thomas was

indeed kidnapped.

¶22.    We have held that the jury is charged with the duty of judging credibility. Jackson v.

State, 614 So.2d 965, 972 (Miss. 1993) (citing Harris v. State, 527 So.2d 647, 649 (Miss.

1988); Groseclose, 440 So.2d at 300). In             Jackson, we acknowledged the critical importance

of deferring to the province of the jury as the fact-finder:

        Jurors are permitted, indeed have the duty, to resolve the conflicts in the
        testimony they hear. They may believe or disbelieve, accept or reject, the
        utterances of any witness. No formula dictates the manner in which jurors
        resolve conflicting testimony into findings of fact sufficient to support their
        verdict. That resolution results from the jurors hearing and observing the
        witnesses as they testify, augmented by the composite reasoning of twelve
        individuals sworn to return a true verdict. A reviewing court cannot and need not
        determine with exactitude which witness or what testimony the jury believed or
        disbelieved in arriving at its verdict. It is enough that the conflicting evidence
        presented a factual dispute for jury resolution.

Jackson v. State, 614 So.2d 965, 972 (Miss. 1993) (citing Gandy v. State, 373 So.2d 1042,

1045 (Miss. 1979)).

¶23.    While the jury most assuredly relied on the testimony of Thomas in determining the

requisite elements of kidnapping, the jury was also privy to the whole of trial testimony in

order to determine Thomas’s credibility and that of Jones’s conflicting testimony.

Accordingly, this was a case of conflicting evidence presented to a jury on a factual dispute,

and the jury obviously resolved the credibility issues against Jones.          Additionally, there is

corroborating testimony regarding the surrounding circumstances that Jones was in possession

of a gun on the date of the incident, and that Thomas jumped from her own van and took flight.


                                                     11
Johnny Thomas also testified that as he traveled down Washington Street, he saw a man (whom

he knew as Billy Ray Warren’s son – Jones) standing over a woman (Thomas) with a gun. All

this having been said, the testimony of Taquelia Thomas and Johnny Thomas was not only

sufficient to submit the kidnapping charge to the jury, it was also sufficient to support a jury’s

decision to convict Jones of kidnapping.

¶24.    The third charge against Jones, possession of a firearm by a convicted felon, required

the State to prove from the evidence that on the date in question, Jones, as a prior convicted

felon, willfully possessed a firearm. At trial the disputed element of this offense was whether

Jones was in possession of a handgun on September 7, 2003. The State not only presented two

witnesses attesting to the fact that Jones was in possession of a firearm, the State also

introduced Jones’s handgun into evidence with additional proof that the gun was recovered

when Jones was arrested at someone else’s residence at 1706 Martha Street.          This Hi-Point

9 millimeter pistol was also unequivocally identified by Thomas at trial as the pistol that Jones

had held against her head on the date in question. At the time of its recovery, the clip, with six

unspent rounds, was in the pistol. In his defense, Jones offered only his denial of possession

of the weapon.     Clearly, there was sufficient evidence on this issue for any reasonable juror

to find that Jones was in possession of the firearm at the time of his arrest. From the record,

it is clear that both post-trial motions concerning the charge of possession of a firearm by a

convicted felon were appropriately denied.

¶25.    In sum, when we view all the evidence in the light most favorable to the State, we can

unhesitatingly conclude that any reasonable, rational and fair-minded juror could have found

                                               12
from this evidence that the State of Mississippi had proved, beyond a reasonable doubt, each

and every element of each of the three crimes for which Jones was on trial. Stated differently,

we are certainly unable to state that from this evidence, with respect to one or more of the

elements of the crimes charged, any reasonable and fair-minded juror in the exercise of sound

judgment could only find Jones not guilty of these charges. Also, from the record before us,

we are certainly unable to find that the trial judge abused his discretion in denying the motion

for a new trial; therefore, the verdict of the jury is beyond our authority to disturb.

¶26.     Thus, we find that Jones’s assignment of error as to the trial judge’s denial of both his

motion for a judgment notwithstanding the verdict, and his motion for a new trial, are without

merit.

         II.     WHETHER THE TRIAL COURT ERRED WHEN IT ALLOWED
                 EVIDENCE OF THE DEFENDANT’S ACTIONS ON THE DAY
                 PRIOR TO THE INCIDENT IN QUESTION

¶27.     Prior to trial, the State filed a motion in limine asking the circuit court to allow

evidence showing that Jones assaulted Thomas on September 6, 2003. In its motion, the State

argued that this evidence, which concerned a related event which took place just one day before

the incident for which Jones was ultimately indicted, was admissible under Miss. R. Evid.

404(b) to establish motive, intent, plan and absence of mistake or accident. At the hearing on

this motion, Jones asserted the evidence was inadmissible because the acts were too far

removed from the charged conduct; that the State was improperly attempting to offer evidence

of another crime; and, that the acts of September 6, 2003, were not part of the res gestae of

the crime.

                                                     13
¶28.   Miss. R. Evid. 404(b) specifically provides:

       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.

We have expounded upon the well-defined exceptions to this rule and stated:

       Proof of another crime is admissible where the offense charged and that offered
       to be proved are so interrelated as to constitute a single transaction or
       occurrence or a closely related series of transactions or occurrences. Such
       proof of another crime is also admissible where it is necessary to identify the
       defendant, where it is material to prove motive, and there is an apparent relation
       or connection between the act proposed to be proved and that charged, where the
       accusation involves a series of criminal acts which must be proved to make out
       the offense, or where it is necessary to prove scienter or guilty knowledge.
       Neal, 451 So.2d at 758-59 (citations omitted)....

Underwood v. State, 708 So.2d 18, 31-32 (Miss. 1998).

¶29.   In Ballenger v. State, 667 So.2d 1242, 1257 (Miss. 1995), we explained further:

       [T]he State has a “legitimate interest in telling a rational and coherent story of
       what happened....” Turner v. State, 478 So.2d 300, 301 (Miss. 1985); Neal v.
       State, 451 So.2d 743, 759 (Miss. 1984). Where 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. State v.
       Villavicencio, 95 Ariz. 199, 388 P.2d 245 (1964).

Ballenger, 667 So.2d at 1257 (citing Brown v. State, 483 So.2d 328, 330 (Miss. 1986)).

¶30.   The evidence stemming from Jones’s September 6 assault on Thomas is clearly

admissible under the exceptions to Rule 404(b).       Not only are Jones’s actions relevant to his

motive for tracking Thomas down and assaulting her again the following day, they also directly

pertain to the continuing act of violence to the extent that Jones ultimately accomplished a


                                                 14
series of interrelated criminal acts which began the day before on September 6. To hold this

evidence inadmissible as evidence of a prior bad act would be to hamstring the State in the

presentation of the complete story of Jones’s crime.         The evidence of the incident of

September 6 was not offered to show Jones’s character or that he was acting in conformity

with a particular character trait. Instead this evidence was offered as part of the very actions

for which he was indicted.     Thus, we find this issue to be without merit as it relates to

admissibility under Miss. R. Evid. 404(b).     However, further discussion is necessary on the

ultimate issue of admissibility of this evidence pursuant to Miss. R. Evid. 403.             This

discussion continues below.

       III.    WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO
               CONDUCT AN ON-THE-RECORD BALANCING TEST
               PURSUANT TO MISS. R. EVID. 403

¶31.   Jones asserts that he has been denied his due process rights and is entitled to a new trial

based on the trial court’s failure to perform an on-the-record balancing test pursuant to Miss.

R. Evid. 403. In support of this argument, Jones claims that      Smith v. State, 656 So.2d 95

(Miss. 1995), overruled in part, Brown v. State, 890 So.2d 901 (Miss. 2004) (abandoning

Smith’s requirement that a trial judge sua sponte give a limiting instruction), requires a trial

court to consider whether the probative value of questionable evidence is substantially

outweighed by the danger of unfair prejudice.        Specifically, Jones argues he was unfairly

prejudiced when the trial court failed to perform an on-the-record Rule 403 analysis and thus

improperly allowed the evidence stemming from his September 6 assault on Thomas.



                                               15
¶32.   Once proof of other crimes or acts of a defendant are deemed admissible pursuant to

the exceptions found in Miss. R. Evid. 404(b), this otherwise admissible evidence must still

survive the required balancing test pursuant to the provisions of Miss. R. Evid. 403.

Accordingly, just as with any evidence otherwise admissible under any other evidentiary rule,

evidence which is deemed admissible pursuant to Rule 404(b) may still be excluded if its

probative value is substantially outweighed by the danger of its resultant unfair prejudice. This

Court has consistently recognized the broad sweeping effect of Rule 403:

       To be sure, evidence admissible under Rule 404(b) is also subject to the
       prejudice test of Rule 403; that is, even though the Circuit Court considered the
       evidence at issue admissible under Rule 404(b), it was still required by Rule 403
       to consider whether its probative value on the issues of motive, opportunity and
       intent was substantially outweighed by the danger of unfair prejudice. In this
       sense Rule 403 is an ultimate filter through which all otherwise admissible
       evidence must pass. Watts, 635 So.2d at 1368 (quoting Jenkins v. State, 507
       So.2d 89, 93 (Miss. 1987)). Consequently, “[t]his rule necessarily vests in the
       Circuit Court a certain amount of discretion.” Hart v. State, 637 So.2d 1329,
       1336 (Miss. 1994) (quoting Stokes v. State, 548 So.2d 118, 125 (Miss. 1989)).

Hoops v. State, 681 So.2d 521, 530-31 (Miss. 1996).

¶33.   When reviewing evidentiary determinations, this Court necessarily accords broad

discretion to our trial courts. In Jenkins v. State, 507 So.2d 89 (Miss. 1987), we explored the

reasoning behind our deference and stated that, as a matter of institutional necessity, we must

accord certain leeway to the circuit court. Id. at 93. Moreover, the weighing and balancing task

required by Rule 403 is not one susceptible of mechanical performance as it asks only that a

judge rely on his/her own sound judgment. Id. As such, the law gives the trial court discretion.

Id.


                                                 16
¶34.    In asserting that his due process rights were violated when the trial court judge failed

to perform an on-the-record Rule 403 balancing test, Jones has misapprehended the nature of

our rules of evidence and the discretion afforded to trial judges when applying these rules.

Accordingly, while 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.          From a practical standpoint, even though

this issue in today’s case was initially addressed at a motion hearing, quite often the trial judge

is required to make Rule 403 rulings from the bench with a witness on the stand, a jury in the

box, and a lawyer on the floor making an objection. 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.                The judge’s failure to

perform an on-the-record Rule 403 analysis in no way affected Jones’s rights.            Moreover, the

evidence of the September 6 incident was properly admitted as its probative value was not

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

misleading the jury. Miss. R. Evid. 403. We, therefore, find this issue to be without merit.

        IV.     WHETHER THE TRIAL COURT ERRED IN ADMITTING
                PHOTOGRAPHS OF THE VICTIM’S INJURIES



                                                   17
¶35.    Over Jones’s objection, the trial court allowed the State to enter photographs depicting

Thomas’ injuries and listed them as State’s exhibits 6, 7, 8, 9, 10 and 11. Jones contends that

admitting this evidence constituted reversible error to the extent the photographs were

unnecessarily gruesome and highly prejudicial.        This Court recently once again discussed the

well-familiar standard of review on the issue of admissibility of photographs in Johnson v.

State, 908 So.2d 100 (Miss. 2005), and stated that “the admissibility of photographs generally

lies within the sound discretion of the trial court; and, absent an abuse of discretion, the court’s

decision will be upheld on appeal.” Id. at 106 (citing Jackson v. State, 784 So.2d 180, 182-83

(Miss. 2001); Taylor v. State, 672 So.2d 1246, 1270 (Miss. 1996)). In Scott v. State, 878

So.2d 933 (Miss. 2004), we held:

        [T]he admissibility of pictures of gruesome crime scenes is within the sound
        discretion of the trial court. Chatman v. State, 761 So.2d 851, 854 (Miss.
        2001). Reversal of the trial court will occur only where there is a clear abuse
        of discretion. Id.; Davis v. State, 551 So.2d 165, 173 (Miss. 1989). “The
        discretion of the trial judge ‘runs toward almost unlimited admissibility
        regardless of the gruesomeness, repetitiveness, and the extenuation of probative
        value.’” Spann v. State, 771 So.2d 883, 895 (Miss. 2000) (quoting Williams v.
        State, 544 So.2d 782, 785 (Miss. 1987)). Some probative value is the only
        requirement needed in order to support a trial judge's decision to admit
        photographs into evidence. Jordan v. State, 728 So.2d 1088, 1094 (Miss.
        1998).

Id. at 985.

¶36.    In the case sub judice, the decision to allow the photographs depicting Thomas’s

injuries was clearly within the broad discretion afforded to the trial court. While Jones readily

admits that the injuries sustained by Thomas were serious, the mere fact that the defense is



                                                 18
willing to stipulate what the prosecution hopes to prove by admitting photographs into evidence

does not bar the photographs’ admissibility.      Simmons v. State, 805 So.2d 452, 485 (Miss.

2001).        The State had the responsibility of presenting a credible story to the jury which

accurately depicted the events and the injuries which resulted from the incident that occurred

on September 7, 2003. To this end, there is little doubt that the photographs had probative

value inasmuch as they provided substantial support to the testimony offered by the State’s

witnesses.       Finding it was clearly within the discretion of the trial judge to allow the

photographs into evidence, we hold this issue is without merit.

         V.       WHETHER THE TRIAL COURT ERRED BY NOT GIVING THE
                  JURY A CIRCUMSTANTIAL EVIDENCE INSTRUCTION

¶37.     Jones assigns error to the prosecution’s failure to support the intent element of the

aggravated assault charge with concrete evidence.            Moreover, Jones claims that the only

evidence produced regarding his intent to commit aggravated assault was circumstantial and

that the circuit court committed reversible error when it refused to submit instruction D-6 as

a two-theory or circumstantial evidence instruction.2


         2
          Instruction D-6 stated:

         The Court instructs the jury that the defendant, Anthony Jones, is never required
         to prove his innocence, and in order for him to be acquitted it is not necessary
         the jury be satisfied in their (sic) mind he is in fact innocent, but whenever there
         arises out of the evidence a reasonable probability that he is innocent, then he
         is entitled to an acquittal for reasonable probability of innocence is always
         reasonable doubt of guilt. In other words, although the theory that hi (sic) is
         guilty is more reasonable that (sic) the theory that hi (sic) is innocent, yet, if
         there arises out of the evidence, and there is supported by the evidence, any
         reasonable theory under which the defendant may probably be innocent, he is

                                                   19
¶38.   It is well-settled that a circumstantial evidence instruction “should be given only when

the prosecution is without a confession or eyewitness to the gravamen of the offense charged.”

Leedom v. State, 796 So.2d 1010, 1020 (Miss. 2001). In Keys v. State, 478 So.2d 266, 267

(Miss. 1985), we explained this premise:

       It is the law in this state that, where the evidence for the prosecution is wholly
       circumstantial in nature, the accused is entitled upon request to have the jury
       instructed that, before they may convict, they must find that each element of the
       offense has been established beyond a reasonable doubt and to the exclusion of
       every reasonable hypothesis consistent with innocence. See, e.g., Billiot v.
       State, 454 So.2d 445, 461-62 (Miss. 1984). There is, to be sure, loose talk in
       some of our cases to the effect that the circumstantial evidence instruction must
       be given where only one of the elements of the offense charged is established
       circumstantially. See, e.g., Collins v. State, 447 So.2d 645, 646 (Miss. 1984);
       King v. State, 315 So.2d 925, 926 (Miss. 1975); Love v. State, 208 So.2d 755,
       757 (Miss. 1968). A correct statement is that the instruction must be given only
       where the prosecution is without a confession and wholly without eye witnesses
       to the gravamen of the offense charged.

Keys v. State, 478 So.2d 266, 267 (Miss. 1985).

¶39.   Jones clearly misinterprets the law of this state in regards to circumstantial evidence.

According to his theory, virtually every case would require an instruction delineating the

hypothetical nature of the State’s case.           Additionally, “this Court has...distinguished the

element of intent from other elements by allowing the State to use circumstantial evidence to

prove intent, without the circumstantial evidence instruction.” Hunt v. State, 687 So.2d 1154,

1162 (Miss. 1996) (citing Jones v. State, 635 So.2d 884, 886-87 (Miss. 1994)).

¶40.   For these reasons, we find that this issue is without merit.



       entitled to be acquitted.

                                                   20
        VI.     WHETHER JONES’S ATTORNEY WAS INEFFECTIVE FOR NOT
                PRESENTING EVIDENCE OF THE VICTIM’S UNCHARGED
                MISCONDUCT FOR FORGING THE DEFENDANT’S
                SIGNATURE AND PRESENTING FALSE INFORMATION TO THE
                MISSISSIPPI DEPARTMENT OF HUMAN SERVICES

¶41.    Jones submits a pro se argument to this Court claiming that his counsel at trial

performed ineffectively to the extent he did not attempt to admit evidence of Thomas’s alleged

fraudulent dealings with MDHS. To this end, Jones, who allegedly watched Thomas’s children

during the day, contends that Thomas, without his knowledge, fraudulently filed a report with

MDHS and claimed that Jones was running a day-care service which entitled him to

compensation from MDHS. According to Jones, Thomas’s actions resulted in her fraudulently

receiving money from MDHS.             Jones further alleges that had his attorney presented this

evidence at trial, he would have been exonerated.

¶42.    In Rankin v. State, 636 So.2d 652 (Miss. 1994), we enunciated the application of

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to claims

asserting ineffective assistance of counsel:

        The Strickland test requires a showing that counsel’s performance was
        sufficiently deficient to constitute prejudice to the defense. McQuarter, 574
        So.2d at 687. The defendant has the burden of proof on both prongs. Id. A
        strong but rebuttable presumption, that counsel’s performance falls within the
        wide range of reasonable professional assistance, exists.          McQuarter, 574
        So.2d at 687; Waldrop, 506 So.2d at 275. The defendant must show that but for
        his attorney’s errors, there is a reasonable probability that he would have
        received a different result in the trial court. Nicolaou v. State, 612 So.2d 1080,
        1086 (Miss. 1992); Ahmad a/k/a Coleman v. State, 603 So.2d 843, 848 (Miss.
        1992).



                                                    21
Rankin, 636 So.2d at 656.

¶43.    Jones’s claim that he should be afforded a new trial based on his lawyer’s failure to

submit this questionable evidence of Thomas’s dealings with MDHS, clearly fails to hurdle the

high standards by which we review ineffective assistance of counsel claims.           Moreover,

Strickland clearly obviates Jones’s evidentiary claim to the extent that the evidence, which he

proposes should have been submitted, was, at the very least, irrelevant. To this end, Jones can

not even meet the first prong set forth by Strickland and demonstrate to this Court that his

trial lawyer even committed error. All of this having been said, it follows that, even assuming

arguendo that the performance of Jones’s trial counsel was deficient, Jones’s claim

unquestionably falls well short of meeting Strickland’s important second prong which

requires Jones to demonstrate that but for his lawyer’s error he would have prevailed at trial.

As such, this pro se issue is wholly without merit.

                                            CONCLUSION

¶44.    Finding Jones’s assignments of error to be without merit for the reasons stated, we

affirm the Warren County Circuit Court’s final judgment of conviction for the crimes of

aggravated assault, kidnapping, and possession of a firearm by a convicted felon, and sentences

of consecutive terms of twenty, thirty, and three years, respectively, as a habitual offender, in

the custody of the Mississippi Department of Corrections.

¶45. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF
TWENTY (20) YEARS, WITHOUT HOPE OF PAROLE OR PROBATION AS AN
HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF KIDNAPPING AND


                                                      22
SENTENCE OF THIRTY (30) YEARS, WITHOUT HOPE OF PAROLE OR
PROBATION AS AN HABITUAL OFFENDER, IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.       COUNT III:
CONVICTION OF CARRYING A WEAPON AFTER A FELONY CONVICTION AND
SENTENCE OF THREE (3) YEARS, WITHOUT HOPE OF PAROLE OR PROBATION
AS AN HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED.       SENTENCES SHALL RUN
CONSECUTIVELY.

     SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY AND DICKINSON, JJ.,
CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ AND RANDOLPH, JJ.,
NOT PARTICIPATING.




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