         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-KA-01351-COA

JAMES LEE BRENT A/K/A JAMES LEE                                              APPELLANT
BRENT JR. A/K/A JAMES BRENT A/K/A
JAMES L. BRENT

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          08/29/2016
TRIAL JUDGE:                               HON. STEVE S. RATCLIFF III
COURT FROM WHICH APPEALED:                 MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: KAYLYN HAVRILLA MCCLINTON
DISTRICT ATTORNEY:                         MICHAEL GUEST
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               REVERSED, RENDERED IN PART, AND
                                           REMANDED IN PART - 05/22/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.

       GREENLEE, J., FOR THE COURT:

¶1.    A jury sitting before the Madison County Circuit Court found James Lee Brent guilty

of armed robbery, kidnapping, and possession of a firearm by a felon. For each conviction,

the circuit court sentenced Brent as a violent habitual offender to life in the custody of the

Mississippi Department of Corrections without eligibility for parole or early release. We

agree with Brent’s appointed appellate counsel that there was insufficient evidence to find

Brent guilty of possession of a firearm by a felon. We also agree that the doctrine of
retroactive misjoinder entitles Brent to a new trial on the armed robbery and kidnapping

charges. Consequently, we reverse the circuit court’s judgment, render a verdict of acquittal

regarding the felon-in-possession-of-a-firearm charge, and remand the armed robbery and

kidnapping charges to the circuit court.

                       FACTS AND PROCEDURAL HISTORY

¶2.    During the early morning hours of November 12, 2015, Rayshaun Banks was on his

third-shift lunch break from a manufacturing plant in Canton, Mississippi, when he stopped

at a gas station. According to Banks, as he was adding air to one of his tires, a man later

identified as Brent1 pressed something to the back of his head and demanded his money.

Banks said he did not have any money, so Brent ordered Banks to get in the car. With Brent

in the passenger seat, Banks drove south on I-55 and took the next exit at Gluckstadt. Banks

then drove to a bank ATM to withdraw money. Banks said he needed to get out of the car

to remove his wallet, but it was actually a pretense to run to safety and contact authorities.

¶3.    Brent drove away in Banks’s car, but he was apprehended later that morning in

Jackson. He gave a statement and denied that he robbed Banks. According to Brent, Banks

had agreed to give him a ride. Brent admitted that while they were in Banks’s car, he “put

[his] finger behind [Banks’s] ear up against [Banks’s] head” and told Banks that he was

“going to use this car tonight . . . .” But Brent also said that Banks knew he was unarmed

because Banks saw his fingers after he moved them away from Banks’s head. When asked

why Banks said Brent had a gun, Brent opined that Banks was “probably mad.”

       1
       Although Banks did not know Brent’s name, Banks said he had seen Brent at work
because Brent once worked for a factory that shared space with Banks’s employer.

                                              2
¶4.    As for why Banks drove to the ATM, Brent said that Banks was going to “get . . .

some money so [Banks could] get back to Canton.” Despite the implication that Banks was

going to let Brent have the car, Brent later admitted that he took it without Banks’s

permission. He added that he felt “bad about it, because [he knew] it wasn’t [his] property.”

¶5.    Brent was indicted and charged with armed robbery, kidnapping, and possession of

a firearm by a felon. At trial, the prosecution called Banks and three law-enforcement

officers who were involved in either Banks’s report of the events, Brent’s arrest, or the

subsequent investigation. Brent chose to testify. He essentially reiterated the version of his

events from his statement and said that Banks had agreed to give him a ride, he never had a

pistol, and Banks bolted from the car for no reason. Brent also claimed that he intended to

return Banks’s car by leaving it somewhere in Jackson. As discussed above, the jury found

him guilty of all three charges. Following his unsuccessful post-trial motion for a judgment

notwithstanding the verdict (JNOV) or a new trial, Brent appeals. Additional facts will be

discussed below as necessary.

                                       DISCUSSION

       I.     Possession of a Firearm by a Felon

¶6.    Brent argues that there was insufficient evidence to find that he willfully possessed

a firearm. He reasons that the trial court should have granted either his motion for a directed

verdict or his motion for a JNOV regarding the felon-in-possession-of-a-firearm charge,

which was designated as Count III in the indictment. In reviewing this issue, we view “the

evidence in the light most favorable to the State.” Johnson v. State, 224 So. 3d 66, 68 (¶4)



                                              3
(Miss. 2016). We will uphold the trial judge’s decision unless “the facts and inferences 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.” Id.

(internal quotation mark omitted).

¶7.    To prove the charge at issue, the prosecution had to present proof beyond a reasonable

doubt that Brent had previously been convicted of a felony and he willfully possessed a

firearm. See Body v. State, 147 So. 3d 890, 892 (¶11) (Miss. Ct. App. 2014). After initial

hesitation by Brent’s trial counsel, the parties ultimately stipulated that Brent had a prior

felony conviction. Thus, this issue hinges on whether there was sufficient evidence that

Brent possessed a firearm.

¶8.    Banks testified that he “felt like a gun was in the back of [his] head[,]” but he did not

“know if it was a pipe or a stick or whatever.” He added that whatever he felt against his

head, it “didn’t feel like a finger.” When asked why he took the Gluckstadt exit, Banks

answered: “Because [Brent] had a gun on me, and I wanted to do what he said.” He later

clarified that he did not see a firearm when he was in the car with Brent.

¶9.    Arguing that there was sufficient evidence to convict Brent, the State quotes Sanders

v. State, 162 So. 3d 868, 870 (¶11) (Miss. Ct. App. 2015), for the principle that “the absence

of physical evidence does not negate a conviction where there is testimonial evidence.” In

Sanders, the defendant was convicted of attempted armed robbery and possession of a

firearm by a felon. Id. at 869 (¶1). He was recognized “[w]hile brandishing a gun” as he

tried to rob a restaurant where he worked. Id. at (¶2). When authorities stopped him, they



                                               4
did not find “the handgun used in the . . . attempted robbery.” Id. at (¶4). Even so, three

witnesses “testified about the attempted robbery.” Id. at (¶5). One witness testified “that

when she said Sanders’s name, he lowered his gun . . . .” Id. at 870 (¶13) (emphasis added).

As such, this Court found no merit to Sanders’s claim that the guilty verdicts were contrary

to the weight of the evidence. Id. at 871 (¶22). Brent’s case is unlike Sanders because there

were no witnesses who saw Brent with a firearm.

¶10.   The State also relies on Johnson v. State, 132 So. 3d 616 (Miss. Ct. App. 2013). The

defendant in that case was convicted of possession of a firearm by a felon after at least three

people saw him with one. Id. at 619-20 (¶¶4, 7). Johnson said that he shot someone in self-

defense and he led authorities to the pistol that he used. Id. at 619 (¶5). While discussing

the propriety of a sentencing enhancement for using or displaying a firearm during the

commission of a felony, this Court said that “[i]t cannot be denied that one can possess a

firearm without using or displaying it.” Id. at 627 (¶38). This Court went on to hold that the

circuit court erred by applying the sentence enhancement without allowing the jury “to

determine if Johnson had used or displayed the firearm that he possessed in the commission

of a felony.” Id. But Johnson does not stand for the principle that a conviction for

possession of a firearm by a felon will be upheld without evidence that the accused actually

or constructively possessed a firearm.

¶11.   Here, there was simply no evidence that Brent possessed a firearm. Banks

unequivocally testified that he never saw Brent with one. In the light most favorable to the

State, there was evidence that Banks thought Brent might have had a pistol. That is, the



                                              5
evidence was that Brent put something to Banks’s head, and Banks complied with Brent’s

demands because he could not be sure that Brent did not have a pistol. Although such

behavior could result in some form of criminal liability,2 it is insufficient to prove beyond a

reasonable doubt that Brent was guilty of Count III. Thus, we reverse the circuit court’s

judgment regarding that charge and render a judgment in Brent’s favor.

       II.    Retroactive Misjoinder

¶12.   In 2003, the circuit court entered a judgment of conviction after Brent pled guilty to

two counts of armed robbery. Two years later, the circuit court entered another judgment of

conviction after Brent pled guilty to two counts of perjury. Before jury selection, the

prosecution announced that it was willing to stipulate to Brent’s status as a felon.

Alternatively, the prosecution planned to introduce one of the judgments of conviction; thus,

the jury would learn that Brent had previously been convicted of two felonies.

¶13.   Anticipating that the prosecution would not be able to present any evidence that Brent

possessed a firearm, Brent’s trial attorney moved to sever the charges. In other words,

Brent’s attorney asked the circuit court to try Brent solely for armed robbery and kidnapping

at that time, and then try Brent for Count III at a later date. Brent’s attorney reasoned that

it would be overly prejudicial for the jury to learn that Brent had previously been convicted

of a felony when it was unlikely that the prosecution would be able to prove that Brent

possessed a firearm.

       2
         See Dambrell v. State, 903 So. 2d 681, 683 (¶6) (Miss. 2005) (“[W]hen a defendant
makes an overt act and a reasonable person would believe that a deadly weapon is present,
there is no requirement that a victim must actually see the deadly weapon in order to” find
the defendant guilty of armed robbery.).

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¶14.   Like Brent’s attorney, the prosecution expected Banks to testify that “he believed he

felt a weapon on the back of his head. And he believed [Brent] had the weapon, but [Banks]

never saw the weapon . . . .” However, the prosecution argued that it would be “a jury

question” regarding whether Banks’s testimony would be sufficient to find Brent guilty of

Count III. After further discussion, Brent’s attorney remained adamant that he would not

stipulate to Brent’s status as a prior felon. Counsel argued that:

       [i]f the State goes forward with all three counts of the indictment and there’s
       proof of a felony conviction, if there is no gun, there is no jury question. We
       get a directed verdict, and if we get a directed verdict and the jury has heard
       about the prior felony conviction, that evidence would be inadmissible in the
       absence of Count [III] of the indictment.

       There are two remedies. One is to allow the State to go forward, put on some
       proof of a prior conviction, fail to put on proof of a gun, and then give
       cautionary instructions to the jury that they should ignore the prior felony
       conviction. Well, once that’s out of the box, it’s out. The cat’s out of the bag.
       The remedy . . . is to sever [Count III] of the indictment for a separate trial, and
       our motion is for a severance of that [C]ount away from these other two, that
       would fix it. That would fix it without the possibility of prejudice to the jury.

The circuit judge ultimately denied Brent’s severance motion. Although Brent’s attorney

initially refused to stipulate that Brent was a prior convicted felon, counsel later changed his

mind. During its case-in-chief, the prosecution read a stipulation that Brent had previously

been convicted of an unspecified felony.

¶15.   Brent now claims that his convictions for armed robbery and kidnapping should be

reversed based on the doctrine of “retroactive misjoinder.” “[R]etroactive misjoinder ‘occurs

when a trial or appellate court determines that while joinder of two or more counts against

a defendant was initially proper, one or more of those counts should be vacated.” Reynolds



                                                7
v. State, 227 So. 3d 428, 433-34 (¶23) (Miss. Ct. App. 2017) (quoting Williams v. State, 37

So. 3d 717, 721 (¶9) (Miss. Ct. App. 2010)). “[A] defendant in such a case is entitled to a

new trial on the remaining count(s) if he can show that he suffered clear and compelling

prejudice as a result of the evidence introduced to support the vacated count.” Id. at 434

(¶23) (internal quotation mark omitted). “The strength of the State’s case against the

defendant on the remaining count[s], the specific evidence presented in connection with the

vacated count, and other pertinent details of the defendant’s case and trial should be analyzed

in determining if the defendant was prejudiced.” Id. at 434 (¶26).

¶16.   Assuming that Brent was being tried for armed robbery and kidnapping and he would

not have chosen to testify, the prosecution would not have been able to introduce evidence

of Brent’s status as a prior convicted felon.3 Evidence of Brent’s status caused him to suffer

clear and compelling prejudice. To prove armed robbery and kidnapping, the prosecution

relied nearly entirely on Banks’s testimony. Based on the flight instruction, the jury could

have derived some degree of probative value from the fact that Brent fled from Officer

Mashanna Johnson of the Jackson Police Department when she encountered him. And when

Investigator Terence Ware of the Canton Police Department testified, he discussed Brent’s

statement, which certainly contained practical inconsistencies that could have caused the jury

       3
        If Brent chose to testify in a hypothetical trial on the armed robbery and kidnapping
charges, the prosecution probably would have been allowed to impeach his credibility by
cross-examining him regarding his prior perjury convictions. See M.R.E. 609; Hodges v.
State, 743 So. 2d 319, 326 (¶42) (Miss. 1999) (“[T]he jury was also free to consider [the
accused’s] prior conviction for perjury in weighing the truthfulness of his testimony.”);
Fuselier v. State, 702 So. 2d 388, 394 (¶19) (Miss. 1997) (explaining that a witness may be
cross-examined regarding a prior perjury conviction and “the jury should be allowed to
make the final determination of the credibility and weight of the witness’s testimony”).

                                              8
to doubt Brent’s credibility. In his statement, Brent admitted that he put his fingers to

Banks’s head while they were both in the car, but Brent also said that Banks saw that he was

unarmed. Though not to the extent of the case in Williams, the prosecution’s case against

Brent was primarily a “swearing match” between him and Banks, and “the credibility of both

individuals was of the utmost importance . . . .” See Williams, 37 So. 3d at 727 (¶31).

¶17.   Having already stipulated to his status as a previously convicted felon, Brent chose

to testify in his defense. During cross-examination, Brent admitted that he had two prior

perjury convictions and, as stated by the prosecution, “two other convictions on top of the

perjury . . . .” Brent also described himself as a “crackhead” during cross-examination and

responded affirmatively when the prosecution asked him if he tried to deceive Officer

Johnson during her foot pursuit by claiming that he had just left a home in the vicinity of the

chase. Thus, Brent’s case was prejudiced to at least some degree by his decision to testify

and expose himself to cross-examination on the subjects discussed above, but subsequent

events showed that Brent’s attorney would have advised Brent not to testify if the jury had

not already heard that Brent had previously been convicted of a felony.

¶18.   After both sides rested, Brent renewed his motion for a directed verdict related to

Count III. The prosecution initially argued against the motion, but later offered to drop

Count III and proceed on the armed robbery and kidnapping charges. Brent’s attorney

responded by moving for a mistrial and arguing that he would have advised Brent not to

testify if Brent had not been charged with Count III. More specifically, Brent’s attorney

argued that if Brent had not been facing the charges in Count III:



                                              9
       It would have altered our defense strategy to the point that I would have
       recommended that Mr. Brent not testify. The only reason that it became
       worthwhile for him to testify was because the jury already knew that he was
       a prior convicted felon, and that never would have been presented to the jury.
       I moved the Court to sever that charge yesterday. I told the Court yesterday I
       thought that would have fixed the problem. It would have prevented the
       situation we’re in now. And now that jury has to go back to a jury room with
       us having stipulated that he was a prior convicted felon, and they never would
       have heard about it if we hadn’t stipulated to it because Mr. Brent would not
       have testified.

The prosecution countered by withdrawing its motion to drop Count III. Even so, it is clear

that but for defense counsel’s argument the prosecution would have been willing to drop

Count III. Moreover, all parties expected that Banks would testify that he never saw a

firearm in Brent’s possession, and Banks later testified consistent with that expectation.

After careful consideration of the precise circumstances of this case, we conclude that the

evidence of Brent’s status as a prior convicted felon caused him to experience clear and

compelling prejudice to the degree that a new trial is necessary on the armed robbery and

kidnapping charges. We remand those charges to the circuit court.

                                       CONCLUSION

¶19.   There was insufficient evidence to find that Brent possessed a firearm, so we reverse

the circuit court’s judgment on Count III and render a verdict in Brent’s favor regarding that

charge. We also conclude that the doctrine of retroactive misjoinder necessitates that Brent

receive a new trial on the armed robbery and kidnapping charges, so we remand them to the

circuit court. We find that our resolution of these two issues makes it unnecessary to discuss

the last issue that appellate counsel raises in her brief or the five issues that Brent raises in

his pro se supplemental brief.


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¶20.   REVERSED, RENDERED IN PART, AND REMANDED IN PART.

       LEE, C.J., IRVING, P.J., BARNES, FAIR, WESTBROOKS AND TINDELL,
JJ., CONCUR. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION,
JOINED BY CARLTON AND WILSON, JJ.

       GRIFFIS, P.J., DISSENTING:

¶21.   Because I would affirm the conviction under Count III, I respectfully dissent.

¶22.   There was no direct evidence by a witness who saw the gun. However, “the absence

of physical evidence does not negate a conviction where there is testimonial evidence.”

Sanders v. State, 162 So. 3d 868, 870 (¶11) (Miss. Ct. App. 2015). Here, Banks testified he

felt something like a gun on the back of his head. He said that he believed Brent possessed

a gun because it felt hard against his skull. Banks insisted that it did not feel like a finger.

“[O]ne can possess a firearm without using or displaying it.” Johnson v. State, 132 So. 3d

616, 627 (¶38) (Miss. Ct. App. 2013).

¶23.   In my opinion, even though Banks never saw Brent’s gun, Banks clearly testified that

he thought Brent possessed a gun because Brent pressed something hard, unlike an opposable

thumb or finger, against the back of his skull and threatened him. From this testimony, a

rational juror could have found the State proved the element of possession. Accordingly, I

find that there was sufficient evidence to support the conviction and the trial court did not

err when it denied Brent’s motion for a directed verdict regarding Count III.

       CARLTON AND WILSON, JJ., JOIN THIS OPINION.




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