        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                            NO. 2012-KA-01066-COA

MICHAEL T. ANDERSON A/K/A MICHAEL                                   APPELLANT
ANDERSON A/K/A MICHAEL THERONE
ANDERSON

v.

STATE OF MISSISSIPPI                                                  APPELLEE


DATE OF JUDGMENT:                      03/30/2012
TRIAL JUDGE:                           HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED:             HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                OFFICE OF STATE PUBLIC DEFENDER
                                       BY: MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE:                 OFFICE OF THE ATTORNEY GENERAL
                                       BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:                     ROBERT SHULER SMITH
NATURE OF THE CASE:                    CRIMINAL - FELONY
TRIAL COURT DISPOSITION:               CONVICTED OF MURDER, AGGRAVATED
                                       ASSAULT, AND FELON IN POSSESSION
                                       OF FIREARM, AND SENTENCED AS A
                                       HABITUAL OFFENDER TO THREE LIFE
                                       SENTENCES TO BE SERVED
                                       CONSECUTIVELY IN THE CUSTODY OF
                                       THE MISSISSIPPI DEPARTMENT OF
                                       CORRECTIONS
DISPOSITION:                           AFFIRMED - 10/21/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

      CARLTON, J., FOR THE COURT:

¶1.   Michael Anderson was convicted of murder, aggravated assault, and felon in

possession of a firearm in the Hinds County Circuit Court. The trial court sentenced
Anderson to serve three life sentences without the possibility of parole in the custody of the

Mississippi Department of Corrections, one life sentence for each count in the indictment.

Anderson now appeals his conviction and sentence. Finding no error, we affirm.

                                          FACTS

¶2.    On April 10, 2009, Anderson shot and killed Drystle Sanders in front of the Triple-A

store in Jackson, Mississippi. The record reflects disputed events at the Triple-A store

culminating in the shooting death of Sanders. However, the record reflects no dispute existed

as to the activities of Sanders, Sylvester Coleman, their mothers, and Coleman’s stepbrother

during that evening, prior to driving to the Triple-A store, as well as the events occurring

subsequent to the shooting.

¶3.    Sanders and his mother, Wysia Sanders, along with Ernestine Coleman, Sylvester

Coleman, and Ernestine’s stepson, Travis Brown, spent time that evening together pleasantly

visiting and hanging out, and drove to the Triple-A store to get chips, cigarettes, and beer.

We will review the facts and events of the evening in question as set forth in the testimony

of the various witnesses.

¶4.    Coleman’s mother, Ernestine Coleman, testified that she arrived to the Sanders home

with Coleman, her son, and Travis Brown, her stepson, on the evening of April 10, 2009.

Sanders and Wysia Sanders were inside of the house. Ernestine Coleman stated that she had

been at the house for approximately thirty minutes before the group decided to go to the

Triple-A store to purchase beer and cigarettes. Ernestine Coleman testified that when the

group drove to the store, “[e]verybody was in a good mood . . . laughing, joking.” Ernestine

stated that she, Wysia Sanders, and Brown remained inside of the car, while Coleman and


                                              2
Sanders went inside to purchase beer and cigarettes.

¶5.    Another witness, Wysia Sanders, testified that on April 10, 2009, she picked up her

son, Sanders, from his job at Labor Finders around approximately 3:30 p.m. Wysia Sanders

testified that she had not seen her son all day, until she picked him up from work. Wysia

Sanders stated that after picking up Sanders, the two purchased something to eat, then

stopped by to visit a friend at the funeral home. She then dropped off Sanders at his friend’s

house to play “videos or something [and listen] to music.” Wysia Sanders stated that

Sanders’s girlfriend dropped him back off at home around 10:30 p.m. Wysia Sanders

testified that Ernestine Coleman, Coleman, and Brown then arrived at the house, and the

group “[sat] around laughing and grinning and talking.” Wysia Sanders stated that Coleman

and Sanders expressed that they wanted to purchase more cigarettes, so Ernestine Coleman

offered to drive everyone to the store. Wysia Sanders also testified that on the way to the

store, “everybody was happy.” When asked on cross-examination whether Sanders and

Coleman intended to purchase cigarettes and beer at the Triple-A, Wysia Sanders answered

“cigarettes.”

¶6.    Coleman testified that he, his mother, and stepbrother arrived at the Sanders home at

7 p.m. on April 10, 2009.1 Coleman stated that while at the house, “we sat around a little

while,” watching television. He further testified that: “We had brought a couple of beers

with us and we ran out and we was going back to the store to get some more.”

¶7.    Travis Brown testified that on the afternoon before the shooting, he, Coleman, and



       1
           Sylvester Coleman’s mother is Ernestine Coleman, and his stepbrother is Travis
Brown.

                                              3
Ernestine Coleman “[were] chilling” at home, “having fun.” The trio decided to ride around,

and ended up at the Sanders house at approximately 10 p.m. Once at the Sanders’s house,

Brown testified that the group played dominoes, and eventually decided to go to the store “to

get a few beers and get us a couple of snacks.” Brown admitted that “[w]e had a few drinks.”

The testimony reflecting the activities throughout the evening reflect that no dispute exists

that Sanders, along with Coleman and Brown, consumed some beer together while hanging

out that evening.

                                          The Store

¶8.    Different witnesses perceived different pieces of the events occurring at the Triple-A

store that culminated in the shooting death of Sanders. At the Triple-A, Anderson (the

appellant) maintains that he was outside of the store when Sanders and Coleman walked into

the store. Ernestine Coleman, Brown, and Wysia Sanders all testified that they remained

inside their car while Sanders and Coleman went into the store to buy beer and snacks.

¶9.    Anderson testified that he “spoke with a hand gesture” to the two women in the car,

and according to Anderson, the women did not speak to him. Anderson testified that he went

into the store and spoke to the clerk. He testified that he told the clerk that he felt he needed

to clean up his act because the women had looked at him like he was “from another planet.”

Anderson testified that after his conversation with the clerk, Sanders told him that the women

were his and Coleman’s mothers.

¶10.   However, the record reflects Coleman’s testimony that he possessed no recollection

of speaking to Anderson in the store, and Coleman also testified that he recalled Sanders

exited the store before Coleman.        Coleman’s testimony reflects that he recalled no


                                               4
conversation with Anderson inside of the store, but Anderson testified differently, providing

that Sanders seemed agitated and stormed out of the store with Coleman. Anderson testified

that after he purchased his items, he then exited the store. Upon leaving the store, Anderson

provided testimony claiming that he was hit in the back of the head and knocked to the

ground. Anderson also testified that he raised up his hands to protect his head, and that he

was hit again. Anderson testified that after he was hit the second time, a gun fell to the

ground. Anderson testified that he grabbed the gun and testified that he then shot Sanders

in self-defense. Anderson testified that after shooting Sanders, he walked home to his

mother’s house. Curiously, the police investigation of the shooting revealed two different

types of bullet casings, fired from two different guns, at the scene, and trial testimony reflects

that no witnesses saw Sanders with a gun.

¶11.   With respect to Sanders’s companion in the store, Coleman testified that when he

walked out of the Triple-A Store, he saw Sanders and another man “tussling.” Shots were

fired, and Coleman heard a gunshot and saw Sanders fall to the ground. Coleman testified

that the shooter, later identified as Anderson, then turned and pointed the gun at him

(Coleman). Anderson fired at Coleman as Coleman started running away from the store and

out of the parking lot. Coleman testified that he fled after he saw Anderson shoot Sanders,

and he testified that his mother, Ernestine, drove away and picked him up on a nearby street,

around the corner. The group in the car (Coleman, Ernestine, Brown, and Wysia Sanders)

then returned to the store to check on Sanders. Coleman explained that as he, his mother,

Wysia Sanders, and Brown drove back to the store to check on Sanders, they passed

Anderson as he was walking “the opposite way from the store” on Ridgeway Street.


                                                5
Coleman testified that as the car approached the store, Anderson began shooting at the car

as he walked down Ridgeway Street away from the store.

¶12.   The record reflects that the store clerk had already exited the store to check on

Sanders, as well. The record shows that Sanders suffered several gunshot wounds, and was

pronounced dead on the scene by law enforcement and medical personnel. Investigators

recovered five spent 9 millimeter cartridge casings on and around Sanders’s body, and found

two more spent 9 millimeter cartridge casings 120 feet away from Sanders’s body. Brian

McIntyre, a forensic scientist at the Mississippi Crime Laboratory, testified that the casings

were fired from two separate guns — all five casings recovered from on and around

Sanders’s body were fired from one gun, and the two casings located 120 feet from Sanders’s

body were fired from a second gun.

¶13.   With respect to events subsequent to the shooting, off-duty Jackson Police Department

Investigator Garland Ward was exiting the establishment next door to the Triple-A Store at

the time of the murder. Ward testified that he was walking to his vehicle when he heard a

commotion in the nearby lot. He heard two shots, saw Sanders fall to the ground, and saw

Anderson standing over Sanders, lying on the ground, aiming the gun at him. Ward saw

Coleman running from the store yelling at the occupants of a car to “get down.” Ward

immediately called another investigator and heard more shots while he was on the phone.

When he looked back toward the scene, he testified that he saw Anderson walking off away

from the store and down the road. Ward later identified Anderson from a photo lineup.

¶14.   Another witness at the shooting, Stephen Johnson, testified that he was driving past

the convenience store when he saw Sanders lying on the ground. As Johnson pulled in to the


                                              6
lot, he saw Anderson stand over Sanders and fire two more shots. Johnson stated that he and

Anderson made eye contact, and then Johnson witnessed Anderson walking off. Then, as

Johnson pulled out of the lot, he testified that he saw a woman walk out of the store. Johnson

testified that the woman went up to Sanders’s body and “looked at it, leaned over, and

walked back inside the store.” At trial, Johnson identified Anderson as the shooter.

¶15.   Ernestine testified that after driving away from the Triple-A after Sanders was shot,

she picked up Coleman down the street and around the corner from the store. After he got

in the car, Ernestine drove back to the store. She testified that as they drove back to the store,

she witnessed Anderson “coming on the side of the store walking, shooting. . . . [H]e was

shooting at my car or us.”

¶16.   Brown, Ernestine’s stepson and Coleman’s stepbrother, testified that he was sitting

in the car outside of the Triple-A while Coleman and Sanders were in the store. Brown

looked up and witnessed Anderson and Sanders “tussling” outside of the store. Brown

instructed his stepmother to open the door, and began helping her locate the locks on the car

door. Brown testified that he heard gunshots, looked up, and saw Sanders fall. Brown

testified that he then witnessed Anderson start shooting at Coleman. Brown stated that

Coleman instructed Brown, Ernestine Coleman, and Wysia Sanders to drive away from the

store, and Coleman followed, running after them. Brown testified that they stopped the car

on the next street so that Coleman could get in, and then they made a block around the store

in order to go back and check on Sanders. As the group in the car drove back towards the

store, they passed Anderson on Ridgeway Street. Brown testified that Anderson was walking

down Ridgeway Street in the direction away from the store. Anderson fired shots at the


                                                7
passing car containing Ernestine Coleman, Wysia Sanders, Coleman, and Brown. Brown

testified that Anderson continued walking on Ridgeway Street and away from the store,

providing Brown, Coleman, Wysia Sanders, and Ernestine Coleman a chance to go back to

the store and check on Sanders.

                            Evidence of Alcohol Consumption

¶17.   We turn to acknowledge the facts relevant to Anderson’s assignment of error related

to exclusion of the victim’s post-mortem blood-alcohol results. As previously stated,

Coleman’s mother, Ernestine Coleman, testified that she, Coleman, and Brown had only been

at the Sanders residence for approximately thirty minutes before the group decided to go to

the Triple-A store to purchase beer and cigarettes. Ernestine Coleman testified that when the

group drove to the store, “[e]verybody was in a good mood . . . laughing, joking.” When

asked by the defense whether “Sanders had something to drink prior” to the shooting, the

State objected, and the trial court sustained the objection. The defense also read portions of

Ernestine Coleman’s statement, given to police on April 11, 2009, the day after the shooting,

into evidence, describing that she, Wysia Sanders, Sanders, Brown, and Coleman arrived to

the Triple-A a little after 10 p.m. on April 10, 2009. As previously stated, the record reflects

Brown and Coleman both testified that they drank beer with Sanders that evening, prior to

the shooting, and drove to the Triple-A store with the intent to purchase more beer.

¶18.   The jury also heard testimony from Ward; Officers Charles Taylor, Darryl Stasher,

Quincy Russell, and Kimberly Brown of the Jackson Police Department; Deputy Donald

Rhodes of the Hinds County Sheriff’s Department; Brian McIntyre, a forensic scientist at the

Mississippi Crime Laboratory; Jacob Burchfield, a forensic chemist in the Trace Evidence


                                               8
Section of the Mississippi Crime Laboratory; and Dr. Amy McMaster, a forensic pathologist.

The trial court refused to admit Sanders’s post-mortem blood-alcohol content into evidence.

The jury convicted Anderson of murder, aggravated assault, and felon in possession of a

firearm. The trial court sentenced Anderson as a habitual offender to three life sentences.

¶19.   Anderson now appeals, claiming the following assignments of error: (1) the trial court

erred in giving a flight instruction to the jury; (2) the trial court erred in giving jury

instruction S-7, which prevented Anderson from having his theory of self-defense submitted

to the jury on the felon-in-possession-of-a-firearm charge; and (3) the trial court erred in

refusing to allow evidence of Sanders’s blood-alcohol level at the time of his autopsy.

                                STANDARD OF REVIEW

¶20.   This Court gives “abuse-of-discretion deference to the trial judge's decision” with

regard to giving or refusing jury instructions. Flowers v. State, 51 So. 3d 911, 912 (¶5)

(Miss. 2010). In determining if any error occurred regarding the jury instructions presented

at trial, the instructions given must be read as a whole. Sheffield v. State, 844 So. 2d 519, 524

(¶12) (Miss. Ct. App. 2003) (citing Turner v. State, 721 So. 2d 642, 648 (¶21) (Miss. 1998)).

No reversible error will be found where the jury instructions fairly announce the law of the

case and create no injustice. Johnson v. State, 908 So. 2d 758, 764 (¶20) (Miss. 2005) (citing

Williams v. State, 863 So. 2d 63, 65 (¶5) (Miss. Ct. App. 2003)). “A defendant is entitled to

have jury instructions given which present his theory of the case; however, this entitlement

is limited in that the court may refuse an instruction which incorrectly states the law, is

covered fairly elsewhere in the instructions, or is without foundation in the evidence.”

Byrom v. State, 863 So. 2d 836, 874 (¶129) (Miss. 2003) (quoting Heidel v. State, 587 So.


                                               9
2d 835, 842 (Miss. 1991)). Jury instructions are within the sound discretion of the trial court.

Goodin v. State, 787 So. 2d 639, 657 (¶60) (Miss. 2001).

¶21.   A trial judge possesses a great deal of discretion as to the relevancy and admissibility

of evidence. Gilley v. State, 748 So. 2d 123, 126 (¶5) (Miss. 1999). Unless the judge abuses

his discretion so as to be prejudicial to the accused, the Court will not reverse this ruling. Id.

                                        DISCUSSION

       I.      Flight Instruction

¶22.   Anderson argues that the trial court erred in giving instruction S-6, a flight instruction,

to the jury, thus allowing the jury to infer guilt from the act of Anderson’s purported flight

from the scene of the shooting. Anderson submits that he objected to the State’s flight

instruction, arguing that because he raised self-defense as his defense theory at trial, then the

trial court erred in giving the flight instruction.

¶23.   The instruction presented to the jury herein stated:

       “Flight” is a circumstance from which guilty knowledge and/or fear of arrest
       may be inferred. If you believe from the evidence in this case beyond a
       reasonable doubt that . . . [Anderson] did flee or go into hiding, such flight or
       hiding is to be considered in connection with all other evidence in this case.
       You will determine from all the facts whether such flight or hiding was from
       a conscious sense of guilt or whether it was caused by other things and give it
       such weight as you think it is entitled to in determining the guilt or innocence
       of [Anderson].

¶24.   In reviewing this assignment of error, we acknowledge that this Court applies an

abuse-of-discretion standard for reviewing a trial court’s decision to give or refuse jury

instructions. Flowers, 51 So. 3d at 912 (¶5). When reviewing the giving or refusal of jury

instructions, this Court reads the instructions as a whole, rather than singling out any one



                                               10
instruction or taking the instructions out of context. In turning to precedent to assist in our

review, we find that in Fuselier v. State, 468 So. 2d 45, 56-57 (Miss. 1985), the supreme

court explained that “an instruction that flight may be considered as a circumstance of guilt

or guilty knowledge is appropriate only where that flight is unexplained and somehow

probative of guilt or guilty knowledge.”     The supreme court adopted the following two-

prong test to determine whether an instruction that flight may be considered is proper: “(1)

Only unexplained flight merits a flight instruction; and (2) Flight instructions are to be given

only in cases where that circumstance has considerable probative value.” Tran v. State, 681

So. 2d 514, 519 (Miss. 1996) (citations omitted).

¶25.   In this case, the record shows that Anderson presented no evidence of an existing

threat at the Triple-A store at the time when he walked away from the store, down Ridgeway

Street, after shooting Sanders on the store’s sidewalk. The record reflects that the store clerk

exited the store and checked on Sanders after Anderson walked off, and that witnesses Ward

and Johnson also saw Anderson walk off from the store after shooting Sanders. The record

shows Anderson left the store premises after Coleman ran off, and after the car with

Ernestine, Wysia, and Brown drove off. Additionally, Coleman and the occupants of the car

testified that as they returned to the store to check on Sanders, they spotted Anderson

walking down the street and away from the store.

¶26.   In applying the law to the facts herein, we turn to precedent for guidance. In Tran,

the supreme court held the facts of that specific case failed to fall within either of the

circumstances where a flight instruction would be appropriate. Tran, 681 So. 2d at 519.

Instructive to the issues raised by Anderson, the supreme court explained that “Tran's flight


                                              11
was explained by both himself and his co-defendant—they were fleeing to avoid retribution

from the friends of [the victim].” Id. The Tran court relied upon Banks v. State, 631 So. 2d

748, 751 (Miss. 1994), which held: “[W]here the person against whom self-defense has been

exercised is still alive and has the back up support of other persons, flight seems logical and

necessary.” Tran, 681 So. 2d at 519. The supreme court determined that since “Tran was

arguing self-defense and the jury heard the testimony on Tran's flight, it was free to draw its

own conclusions as to the flight significance.” Id. In Tran, the court found under these facts

that the flight seemed logical and necessary in light of the self-defense argument and the facts

of necessity raised therein. Id. The Tran court remanded the case back to the trial court,

holding that it was clearly reversible error to give the flight instruction and call undue

attention to Tran’s flight. Id.

¶27.   Also, significant to the resolution of the issue before us in the instant case, in the

opinion of Shumpert v. State, 935 So. 2d 962, 970 (¶28) (Miss. 2006), the supreme court

observed that the defendant therein, Shumpert, claimed that he ran to avoid being hurt by the

victim, and this explanation constituted the only explanation Shumpert offered for fleeing

from the scene of that crime. However, the supreme court acknowledged that Shumpert also

stated the victim did nothing to threaten or harm Shumpert. Trial testimony also provided

evidence that the victim never threatened or harmed Shumpert. The supreme court ultimately

found in Shumpert that the trial court did not err in giving the flight instruction because:

“All of this evidence supports the contention that the flight was not explained by any reason

other than consciousness of guilt. The trial court agreed and [gave] the flight instruction, and

it did not err in doing so.” Id.


                                              12
¶28.   In applying precedent to the facts of the instant case, the State herein argues that

Anderson never provided a reasonable explanation for his flight from the murder scene.2 The

record reflects that Anderson testified that after he shot Sanders, he walked to his mother’s

house. As reflected by the statement of facts herein, the record shows that various witnesses

also testified at trial as to the circumstances after the shooting, and their testimony reflected

no evidence of any existing threat to Anderson prior to departing from the Triple-A store

where Sanders lay dying.

¶29.   As previously noted, Coleman testified that after he saw Anderson shoot Sanders,

Coleman fled from the store, and Ernestine also drove away from the store with Wysia and

Brown. Ernestine picked up her son on a nearby street. After Anderson left the store, the

group then returned to the store to check on Sanders. As Coleman, Ernestine Coleman,

Wysia Sanders, and Brown drove back toward the store to check on Sanders, they passed

Anderson as he was walking down Ridgeway Street “the opposite way from the store.” The

record reflects that they passed him on Ridgeway Street, and Coleman testified that Anderson

then pointed the weapon back towards the store and towards their car, firing the gun at them.

¶30.   As previously stated in the review of the facts herein, the record reflects other

testimony, including the testimony from witnesses Ward and Johnson, supporting the flight




       2
         See also States v. State, 88 So. 3d 749, 758 (¶38) (Miss. 2012). In States, the
supreme court found the trial court’s error in giving a flight instruction to be harmless error
due to the overwhelming evidence of the defendant’s guilt. Id. The States court explained:
“An error is harmless if it is clear beyond a reasonable doubt that it did not contribute to the
verdict.” Id. (citations and internal punctuation omitted). In States, the supreme court held
that based on the overwhelming evidence of the defendant’s guilt, the trial court’s error in
giving the flight instruction did not contribute to the guilty verdict. Id.

                                               13
instruction. The record shows that Johnson pulled back in to the lot to check on the victim

when he saw Anderson stand over Sanders and fire two more shots. Johnson stated that he

and Anderson made eye contact, and then Johnson witnessed Anderson walking off from the

store where Sanders lay dying on the sidewalk and parking area. The record shows that

Coleman fled on foot and Wysia Sanders, Ernestine Coleman, and Travis Brown drove off

away from the store prior to the point when Anderson began walking away from the store

down Ridgeway Street. Also, as previously acknowledged, Johnson stated that a woman

then walked out of the store, went up to Sanders’s body, and “looked at it, leaned over, and

walked back inside the store.”

¶31.   After our review of the facts of this case and applicable law, we find that in this case,

as in Shumpert, the record reflects no abuse of discretion occurred by the trial court’s giving

of the flight instruction herein.3

       II.      Felon in Possession of a Firearm

¶32.   Anderson next argues that the trial court erred in giving instruction S-7, which stated:

“The court instructs the jury that self-defense is not a viable defense to possession of a

firearm by a convicted felon.” See Miss. Code Ann. § 97-37-5 (Rev. 2014) (convicted felon

may not possess a firearm). Anderson asserts that the trial court committed reversible error

by preventing his theory of self-defense from being submitted to the jury on the felon-in-

possession-of-firearm charge. Anderson’s argument confuses the defense of necessity with

that of self-defense.




       3
           See Flowers, 51 So. 3d at 912 (¶5).

                                                 14
¶33.   Anderson argues that his theory of defense consisted of arguing that Sanders and

Coleman acted as the initial aggressors, and that Anderson possessed the gun out of

necessity. We acknowledge, however, that Anderson failed to request that the jury be

instructed on the defense of necessity, and we further acknowledge that the facts in the record

fail to support a necessity instruction. Anderson testified that after he exited the Triple-A

store, he was hit in the head and fell to one knee. Anderson stated that he was hit again, and

then “the gun fell the third time that he tried to hit me.” Anderson testified that he grabbed

the gun and “was trying to point and shoot at the same time.” The record reflects no

testimony showing that Sanders possessed a firearm or weapon when Anderson shot him.

¶34.   In this assignment of error, Anderson acknowledges that self-defense fails to

constitute a valid defense to the charge of felon in possession of a firearm. See Williams v.

State, 953 So. 2d 260, 263 (¶8) (Miss. Ct. App. 2006). Anderson’s argument, however,

asserts that the trial court’s refusal of a self-defense instruction prevented the jury from

considering whether Anderson acted out of necessity, and that necessity constitutes a valid

defense to this offense. He cites to Williams, 953 So. 2d at 263-64 (¶9), wherein the supreme

court held that necessity is a valid defense for the charge of felon in possession of a firearm.

The Williams Court held that “in order to be entitled to a defense of necessity, the defendant

must prove the following: (1) the act charged was done to prevent a significant evil, (2) there

was no adequate alternative, and (3) the harm caused was not disproportionate to the harm

avoided.” Id.

¶35.   A review of precedent relevant to the charge at issue and self-defense reflects that in

Roberson v. State, 19 So. 3d 95, 101 (¶9) (Miss. Ct. App. 2009), the defendant, a convicted


                                              15
felon, argued that he possessed a weapon based on his alleged belief that he was in imminent

and immediate danger of being killed by the victim. This Court found no merit to this

argument, acknowledging that “self-defense is not a viable defense to possession of a firearm

by a convicted felon.”     Id. (quoting Williams, 953 So. 2d at 263 (¶8)). Consistent with

precedent, the State argues that self-defense is not a valid defense to the charge of felon in

possession of a firearm. The State further asserts that this issue is not properly before this

Court because Anderson never requested a necessity instruction at trial. As previously

acknowledged, the record indeed reflects that the defense objected to the judge’s instruction

in S-7 informing the jury that self-defense failed to constitute a defense to possession of a

firearm by a convicted felon. However, the defense never requested a necessity instruction.4

¶36.   A review of precedent as well as section 97-37-5, which defines the offense of felon

in possession of a firearm, reflects that the State correctly argues that self-defense fails to

constitute a defense to that crime.5 Clearly, the statute establishing the offense, section 97-

37-5, contains no self-defense exception. Therefore in this case, the trial court properly

instructed the jury that self-defense failed to constitute a defense to the charge against

Anderson for the charged offense of felon in possession of a firearm.

¶37.   Furthermore, as acknowledged, necessity indeed provides a valid defense to the

offense of felon in possession of a firearm, but as also acknowledged, the record must contain

an evidentiary foundation to support the defense. See Williams, 953 So. 2d at 263-64 (¶9);



       4
        Instruction S-7 stated: “The court instructs the jury that self-defense is not a viable
defense to possession of a firearm by a convicted felon.”
       5
           See Williams, 953 So. 2d at 263-64 (¶9).

                                              16
Lenard v. State, 828 So. 2d 232, 237 (¶25) (Miss. Ct. App. 2002). With respect to the

required evidentiary foundation, the supreme court has found the defense of necessity

available only where the defendant reasonably acts out of fear of imminent danger of death

or serious bodily harm to himself or others. Stodghill v. State, 892 So. 2d 236, 238 (¶8)

(Miss. 2005). As previously discussed, the supreme court established that in order to support

an instruction on necessity, the defendant must prove the following: “(1) the act charged was

done to prevent a significant evil, (2) there was no adequate alternative, and (3) the harm

caused was not disproportionate to the harm avoided.” Williams, 953 So. 2d at 263-64 (¶9).

¶38.   Instructive to the case before us, in Williams, the supreme court found that the

necessity instruction was not justified in that case because Williams failed to show that no

adequate alternative existed but to possess the gun. Id. at 264 (¶10). In this case, Anderson

not only failed to request an instruction on the necessity defense, but the record also fails to

support any evidentiary basis for instructing the jury on the necessity defense since Anderson

failed to show that no adequate alternative was available other than possessing the firearm

he used to shoot Sanders, when Sanders was unarmed.

¶39.   In finding no merit to this assignment of error, we acknowledge that the trial court

gave a self-defense instruction on Anderson’s right to use reasonable force to defend himself.

We find no error in the trial court’s instructions to the jury regarding self-defense and the

offense of felon in possession of a firearm.6

       III.     Sanders’s Blood-Alcohol Content




       6
           Goodin, 787 So. 2d at 657 (¶60).

                                                17
¶40.   Anderson finally argues that the trial court erred in refusing to allow the defense to

introduce evidence of Sanders’s blood-alcohol level at the time of his autopsy. Anderson

asserts that such evidence was relevant to show Sanders’s state of mind at the time of the

shooting and that Anderson felt threatened by Sanders.

¶41.   Generally, evidence of a victim's character is irrelevant. M.R.E. 404(a)(2). We

recognize that the comment to this rule, however, states that in limited instances, the

character of a victim may be relevant “where the defendant claims that the victim was the

initial aggressor and that the defendant's actions were in the nature of self-defense.” M.R.E.

404 cmt. In order to present this evidence, however, the defendant must offer evidence of

an overt act of aggression perpetrated against him by the victim. Id. (citing Freeman v. State,

204 So. 2d 842 (Miss. 1967)). Once the act is proven, the defendant may then offer proof

of the victim's character. Id.; see Shinall v. State, 199 So. 2d 251, 258 (Miss. 1967). We

recognize that no matter how relevant the evidence, the trial court may exclude the evidence

when unfair prejudice outweighs its probative value. M.R.E. 403. See Rouster v. State, 981

So. 2d 314, 320 (¶17) (Miss. Ct. App. 2007) (The trial court properly excluded evidence of

the victim’s intoxication by balancing its probative and prejudicial effects under Rule 403.).

¶42.   Prior to the trial, the trial judge heard arguments on the State’s motion to exclude

Sanders’s blood-alcohol level. The judge ruled that “at this point, it is not admissible,” but

advised that “it might become admissible during the trial as to the victim’s state of mind, but

it would have to be something additional offered by the defendant in order for this to become

relevant.”

¶43.   At the close of the State’s evidence, the defense asked the trial judge for an


                                              18
opportunity to question a witness regarding whether it appeared that alcohol affected

Sanders’s actions and statements on the day of the shooting. The trial court explained that,

generally, the character of the victim is not admissible. The trial court ultimately ruled that

Sanders’s blood-alcohol content at the time of his death was not relevant to the case, and

found that “any prejudicial effect far outweighs any probative value, if there would be any.”

The trial court stated that it would, however, allow testimony from any witnesses who

observed Sanders drinking, and the observations of these witnesses.

¶44.   Anderson maintains that he shot Sanders in self-defense. He argues that the trial

court’s refusal to allow evidence of Sanders’s blood-alcohol content at the time he was shot

is reversible error. In support of his argument, Anderson cites to Newell v. State, 49 So. 3d

66, 73 (¶18) (Miss. 2010), where the supreme court found reversible error where the trial

court refused to allow evidence of the deceased’s toxicology report in a murder case where

the defendant claimed self-defense.

¶45.   We further acknowledge that precedent reflects that the supreme court has held that

intoxication evidence offered for the purpose of giving rise to the victim’s motive or

intention, or the defendant’s belief in the imminence of his danger, is admissible as long as

its relevance has been established by the time the evidence is offered. Newell, 49 So. 3d at

73 (¶16). See also Byrd v. State, 154 Miss. 742, 123 So. 867, 869 (1929). In Newell, the

defendant claimed the trial court erred improperly refused to allow evidence of the victim’s

toxicology results. Newell, 49 So. 3d at 72 (¶14). During the trial in Newell, the defendant

attempted to cross-examine the forensic pathologist regarding the victim’s blood toxicology,

but the trial court excluded it. Id. The trial court explained that evidence of the victim’s


                                              19
toxicology was irrelevant because, at the time the forensic pathologist testified, no evidence

had been brought forth to show any violent action or behavior by the victim. Id. at (¶15).

The supreme court found, however, that at the time the forensic pathologist testified, the

relevance of the victim’s toxicology results had been established, explaining:

       The jury obviously knew that [the defendant] was on trial for fatally shooting
       [the victim], and it already had heard that the shooting had occurred soon after
       [the victim]'s allegedly aggressive and violent behavior, evidence of which had
       been presented through testimony by [witnesses] present at the stand-off. [So,
       the victim’s] toxicology results were relevant to show “all the circumstances
       under which the fatal difficulty occurred, and which would in any manner . .
       . indicate the mental state of the deceased.” . . . Therefore, the exclusion of
       [victim]'s toxicology results was an abuse of discretion, because the relevance
       of that evidence had been established at the time [the forensic pathologist] took
       the stand.

Id. at 73 (¶17) (internal citations omitted).

¶46.   The supreme court ultimately found that the exclusion of the toxicology evidence

amounted to reversible error, stating:

       [The defendant’s] theory of the case was self-defense, and evidence of [the
       victim’s] toxicology could have affected the jury's understanding of [the
       victim’s] motive or intention and [the defendant’s] belief in the imminence of
       his danger. So the exclusion of the evidence prevented [the defendant] from
       fully presenting his theory of the case to the jury and thus adversely affected
       his right to a fair trial.

Id. at (¶18).

¶47.   In this case now before us, the State asserts that no evidence was presented at trial

reflecting that Sanders had been aggressive or violent at the time of the murder, or that

Sanders had ever displayed violent or aggressive behavior in the past towards Anderson or

anyone else after consuming alcohol.            The State claims that the present case is

distinguishable from Newell, because in Newell, when the defendant attempted to put on


                                                20
evidence of the victim’s intoxication, evidence had already been presented showing that the

victim acted violently at the time of the killing. Id. The State argues that no evidence was

presented to indicate that Sanders in any way provoked Anderson prior to the murder, and

thus Sanders’s state of mind was not relevant at the time Anderson sought to introduce

evidence of Sanders’s blood-alcohol level. See Rouster v. State, 981 So. 2d 314, 318-20

(¶¶10-17) (Miss. Ct. App. 2007) (victim’s character not relevant at the time the evidence was

offered by Rouster).

¶48.     In Rouster, this Court held that the proposed testimony on the victim’s possible

intoxication failed to constitute an exception to inadmissible character evidence for two

reasons: (1) at the time the defense counsel attempted to elicit this testimony, Rouster had

not claimed self-defense or established that the victim was the initial aggressor, and, thus it

was irrelevant at that point in the trial, and (2) no evidence was presented that marijuana

smoking is linked with a propensity for violence, either generally or regarding the victim

specifically. Id. at 319 (¶¶15-16). In Rouster, this Court recognized that, regarding the

victim’s intoxication, modern caselaw “emphasizes not whether the victim is intoxicated, but

the victim's propensity for violence at the time of the crime.” Id. at 320 (¶17). See Farmer

v. State, 770 So. 2d 953, 958 (¶16) (Miss. 2000) (holding it was proper to exclude testimony

of     victim's   blood-alcohol   content   because   relevancy   not   established    at   time

introduced—testimony also excluded that would have shown victim's tendency towards

violence when drunk); Huggins v. State, 911 So. 2d 614, 618 (¶¶ 9-12) (Miss. Ct. App. 2005)

(holding it was proper to exclude testimony of victim's alcohol intoxication—no evidence

provided that victim's character was to behave violently, drunk or sober).            The Court


                                               21
explained that “[t]he purpose of introducing the character evidence of the victim's

intoxication is to further the defendant's self-defense claim by proving the victim, who had

a propensity for violence, became more violent after intoxication.” Rouster, 981 So. 2d at

320 (¶17).

¶49.   In applying the law to this assignment of error, we are mindful that the admission or

exclusion of evidence by the trial court is reviewed for abuse of discretion, absent plain error.

Gilley, 748 So. 2d at 126 (¶5). In the present case, the record shows that Anderson tried to

introduce the evidence at the close of the State’s case-in-chief. By this point, Coleman and

Brown had provided testimony that Sanders had been drinking beer with them prior to the

incident, and Coleman testified that he and Sanders entered the store with the intent to

purchase more beer. Anderson testified in his own defense, and he stated that when he first

encountered Sanders in the store on the night of the incident, he “thought [Sanders] was just

a drunk.” The record is undisputed that Sanders had consumed beer prior to going to the

store to purchase more beer. The record reflects no evidence to show that Sanders became

violent, or possessed a propensity for violence, when drunk.

¶50.   Anderson testified that he received a blow to the head as he exited the store and that

Sanders possessed a gun that fell from his hand. Without commenting on the weight or

credibility of this testimony from Anderson, we acknowledge that this testimony by

Anderson provides some evidence that Sanders acted as an initial aggressor, opening the door

to Sanders’s character for violence. Newell, 49 So. 3d at 73 (¶16). However, evidence in the

record clearly reflects that the jury already received evidence at trial that Sanders consumed

beer that evening while hanging out with Coleman and Brown, and that they went to the


                                               22
Triple-A store to buy more beer. Hence, the jury received evidence as to Sanders’s alcohol

consumption prior to the shooting. As stated, no evidence presented at trial reflects Sanders

possessed a propensity for violence when drinking, or that Anderson was aware of any

propensity for violence by Sanders. Therefore, even if the alcohol consumption was

determined to be relevant to Sanders’s character or state of mind, we find no error in the trial

court’s exclusion of Sanders’s blood-alcohol content, since the excluded evidence of blood-

alcohol content was cumulative to other direct testimony from eyewitnesses as to Sanders’s

alcohol consumption prior to the shooting.7 Stated otherwise, the toxicology results were

cumulative to the witness testimony in the record establishing that Sanders had been drinking

that evening and went to the store to get more beer. See Weeks v. State, 493 So. 2d 1280,

1284-85 (Miss. 1986); see also Ross v. State, 954 So. 2d 968, 994 (¶48) (Miss. 2007)

(“Evidence may be excluded under [Rule] 403 if it is merely cumulative.”).

¶51.   After our review of the record, we find no abuse of discretion in the exclusion of

evidence concerning Sanders’s blood-alcohol content.8 Accordingly, we affirm Anderson’s

conviction and sentence.

¶52.   THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF

       7
         We find no abuse of discretion in the trial court’s exclusion of the blood-alcohol-
content report since such evidence was cumulative to evidence presented at trial showing
Sanders drank beer the evening of the shooting. However, we also acknowledge: “Errors
in the admission of evidence are subject to a harmless error analysis because, as is often said,
a defendant is entitled to a fair trial, not a perfect one. An error is harmless when the same
result would have been reached had it not existed.” James v. State, 124 So. 3d 693, 699
(¶18) (Miss. Ct. App. 2013) (internal citations and quotations omitted).
       8
         See Harper v. State, 102 So. 3d 1154, 1161 (¶21) (Miss. Ct. App. 2012) (“[A]n
appellate court may affirm a trial court['s decision] if the correct result is reached, even if the
trial court reached the result for the wrong reasons.”) (citation omitted).

                                                23
CONVICTION OF MURDER, AGGRAVATED ASSAULT, AND FELON IN
POSSESSION OF A FIREARM AND SENTENCE, AS A HABITUAL OFFENDER,
OF THREE LIFE SENTENCES TO BE SERVED CONSECUTIVELY IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED.   ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS
COUNTY.

    LEE, C.J., IRVING, P.J., ISHEE, ROBERTS AND FAIR, JJ., CONCUR.
GRIFFIS, P.J., BARNES AND MAXWELL, JJ., CONCUR IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN
PART WITHOUT SEPARATE WRITTEN OPINION.




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