                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2016-KA-01088-SCT

MARIO RAGLAND a/k/a MARIO DARNELL
RAGLAND

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        06/30/2016
TRIAL JUDGE:                             HON. ROBERT P. CHAMBERLIN
TRIAL COURT ATTORNEYS:                   ROBERT A. CHAMOUN
                                         JENNIFER LYNN MUSSELWHITE
                                         MICHAEL DARIN VANCE
                                         JOHN W. CHAMPION
COURT FROM WHICH APPEALED:               DeSOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  OFFICE OF THE STATE PUBLIC
                                         DEFENDER
                                         BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: LISA L. BLOUNT
DISTRICT ATTORNEY:                       JOHN W. CHAMPION
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED -11/30/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      BEAM, JUSTICE, FOR THE COURT:

¶1.   A DeSoto County jury found Mario Ragland guilty of armed robbery and conspiracy

to commit armed robbery. Ragland appeals his convictions, claiming there was insufficient

evidence to support either conviction, and the jury verdicts were against the overwhelming

weight of the evidence. Ragland also claims the trial court erred in allowing accomplice
instructions to be submitted to the jury under the evidence of this case, and that those given

were either defective or incomplete.         He further contends his trial counsel was

constitutionally ineffective for failing to object to the accomplice instructions, and for

requesting an accomplice instruction on behalf of the defense that was incomplete or

incorrect.

¶2.    Finding no reversible error, we affirm.

                                          FACTS

¶3.    Shortly after 3:00 a.m. on November 17, 2014, Tamieka Campbell Manning, an

employee at the Krystal restaurant on Craft-Goodman Road in Olive Branch, Mississippi,

was cleaning the restaurant when she turned around and saw a gun in her face. A black male

wearing a blue hoodie, surgical mask, gloves, and shiny black shoes, and brandishing a black

revolver, demanded money and ordered Manning and two other Krystal employees to the

back of the restaurant, where the office and a safe was located. There, the man took Krystal

envelopes, along with a Krystal money bag, each filled with money. Afterward, the man

ordered Manning and the other Krystal employees to lie on the floor and cover their heads.

Manning saw the man leave Krystal from surveillance cameras in the office. She could not

see anything outside the Krystal. Manning reported the robbery to 911 within a minute or

two after the man left the restaurant.

¶4.    Olive Branch Police Officer David Rumbarger was on patrol in the area when he

received a dispatch at approximately 3:06 a.m. regarding a robbery that had just occurred at

the Krystal restaurant by a suspect described as a black male. Rumbarger drove to a location



                                              2
on Highway 78 where he thought a suspect might flee; positioned his patrol car, turned on

his dash camcorder, and began shining his spotlight toward oncoming traffic traveling

westbound from the area of Krystal’s location so he could see the occupants inside the

passing vehicles. Rumbarger spotted a vehicle traveling at a high rate of speed which slowed

down as it approached his location and then sped back up. Rumbarger testified that he saw

two black male occupants in the vehicle. Rumbarger said he pulled out behind the vehicle,

which “continued to pick up speed at a high rate of speed.” Rumbarger turned on his blue

lights and siren for the purpose of stopping the vehicle. Rumbarger caught up to the vehicle

as the vehicle was approaching an intersection where other vehicles were stopped at a red

light.   As Rumbarger got closer, the subject vehicle, with its turn signal activated,

maneuvered into the left turning lane, the light for which was showing green for traffic

turning left. When Rumbarger pulled up directly behind the vehicle, the vehicle then

maneuvered back into the westbound traffic lane, pulling in front of traffic still stopped at

the intersection’s red light. The vehicle proceeded through the intersection, maneuvering

across both westbound lanes and then onto the right shoulder of the highway, as though it

were about to stop. The vehicle, however, continued moving, getting back on Highway 78

until eventually pulling over approximately thirty seconds later, inside the city limits of

Memphis, Tennessee.

¶5.      Once stopped, Rumbarger ordered both occupants to remain in the vehicle with their

hands up. When backup arrived, Rumbarger ordered the driver out of the vehicle, and

another officer placed Ragland in handcuffs. The passenger subsequently was ordered out



                                             3
of the vehicle and also handcuffed. Both occupants were cooperative, according to

Rumbarger. Ragland was the driver of the vehicle, and he told Rumbarger the reason he did

not stop immediately was because the vehicles’s brakes were sticking. The passenger of the

vehicle was identified as Elbert Nichols.

¶6.    Olive Branch Detective Aaron Curtis assisted in the investigation of the Krystal

robbery. Curtis responded to Krystal, where he watched surveillance video of the robbery.

He then went to the location of the traffic stop, where Memphis police were then assisting.

Curtis testified that Nichols’s clothes matched the clothes of the individual shown on

Krystal’s video surveillance.

¶7.    Curtis photographed evidence as Memphis police inventoried the inside of the vehicle.

They found a money bag and envelopes taken from Krystal inside the glove compartment,

and a Krystal envelope on the passenger-side floorboard; a Colt .38 revolver in the center

console, a round of ammunition on the floorboard, blue latex gloves, and surgical masks.

Latex gloves also were found on Ragland which matched the gloves worn by the suspect

inside Krystal, according to the surveillance video.

¶8.    Ragland and Nichols were arrested and taken to the Memphis Police Department.

Detectives interviewed Ragland after he was read his Miranda rights.1 Ragland denied

being at the Krystal or knowing anything about the robbery. He said Nichols had picked him

up from an apartment where he had stayed the night. Ragland told detectives Nichols came

to the apartment and stayed for a minute, before the two left in the vehicle in which Nichols



       1
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                             4
had arrived, with Ragland driving because Nichols was tired. Shortly thereafter, police

pulled them over.

¶9.    After the State’s case-in-chief at trial, the defense moved for a directed verdict, which

the trial court denied. Ragland thereafter testified in his own defense. According to

Ragland, he was with a girl named Camille Patterson at an apartment complex on Stateline

Road. Around 11:00 p.m., Ragland called Nichols asking for a ride home because he had to

be at work early the next morning. Ragland said he worked as a custodian at the Shelby

County Schools, and his job required him to wear gloves. Ragland testified Nichols got to

the apartment around 3:00 a.m. and came inside the apartment, where they talked for about

ten minutes before he and Ragland left. Nichols asked Ragland to drive because Nichols said

he had been driving all day and was tired. Ragland could not remember the name of the

apartment complex but said it was on Stateline Road.

¶10.   When asked about being stopped by the police, Ragland said that, as the police vehicle

approached them from behind, he was in the process of slowing down to make a left-hand

turn and he noticed the vehicle’s brakes were sticking. Therefore, he continued through the

intersection and then merged in front of the traffic sitting at the intersection’s red light.

Ragland said he had no idea there was money in the glove compartment and a gun in the

console. Ragland testified that he asked the officer if he could get his girl to come down to

the traffic stop to tell them he had just left her apartment. But the officer told Ragland he

was messing with a crime scene. Ragland said no one mentioned the robbery until he was

taken to the Memphis Police Department.



                                               5
¶11.   Ragland told the jury that he called Patterson on a cell phone while sitting in the back

of the police vehicle. He said Patterson went to the scene of the traffic stop and sat across

the street watching, and that the police would not allow her to come over and tell them

Ragland had just left her apartment. Ragland said he told officers how they could get in

touch with her, but they did not care to and never asked for her address in Memphis.

According to Ragland, Patterson could not attend his trial as a witness because she was shot

in the head two to three days after Ragland’s arrest.

¶12.   On rebuttal, Lieutenant Joshua Mucciarone testified on behalf of the State.

Mucciarone said that, as a patrol officer, he is familiar with the streets and apartment

complexes located in the area off Stateline Road. He marked the location on a map of

Krystal entered into evidence, showing the location of the traffic stop and the location of two

apartment complexes in the area. According to Mucciarone, it is 3.5 miles from Krystal to

Plantation Apartment Complex, and it takes approximately seven minutes to drive the

distance. And it is 4.7 miles from that complex back to the location where Rumbarger first

spotted the suspect’s vehicle, a distance that takes about ten to twelve minutes to drive.

¶13.   Mucciarone, who was on patrol the morning of the Krystal robbery, assisted

Rumbarger at the scene of the traffic stop. Mucciarone said he handcuffed Ragland and

placed him in the back of the police vehicle. He said no one came to the scene on behalf of

Ragland, and he did not see Ragland speak to anyone.

                                     DISCUSSION

       I. Sufficiency of the Evidence; Weight of the Evidence



                                              6
¶14.   Ragland claims the evidence presented at trial was insufficient to support his

convictions for armed robbery and conspiracy, and the jury’s verdicts for each conviction

were against the overwhelming weight of the evidence. Ragland contends the State’s theory

for the armed-robbery count was that Ragland had aided and abetted Nichols in carrying out

the armed robbery at Krystal. And for the conspiracy count, the State argued that he and

Nichols had entered into a common plan to commit armed robbery, knowingly intending to

further that plan. But Ragland submits the State’s case against him was based entirely on

circumstantial evidence, which requires a reviewing court to scrutinize the jury’s verdict

more closely. Ragland maintains that his presence in an automobile with Nichols proves

nothing. Ragland argues the State’s evidence does not reasonably exclude the hypothesis that

Nichols picked him (Ragland) up at an apartment complex after Nichols committed the

robbery and that he (Ragland) had no knowledge of the robbery. Ragland maintains that his

own testimony supports a reasonable hypothesis consistent with innocence, and the jury’s

verdicts in this case are so contrary to the credible evidence presented in support of that

hypothesis that a miscarriage of justice would result were the verdicts affirmed.

¶15.   When assessing the legal sufficiency of a conviction, a reviewing court determines

“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.” Cotton v. State, 144 So. 3d 137, 142 (Miss. 2014). This Court will reverse and

render a conviction “[i]f facts and inferences considered by the Court point in favor of the

defendant on any element of the offense with sufficient force that reasonable men could not



                                              7
have found beyond a reasonable doubt that the defendant was guilty.” Edwards v. State, 469

So. 2d 68, 70 (Miss. 1985).

¶16.   When reviewing a trial court’s denial of a defendant’s motion for a new trial

challenging the weight of the evidence, we will not disturb the jury’s guilty verdict unless

the record before this Court demonstrates that the verdict is “so contrary to the overwhelming

weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

Miller v. State, 980 So. 2d 927, 929 (Miss. 2008). “In determining whether a jury verdict is

against the overwhelming weight of the evidence, this Court must accept as true the evidence

which supports the verdict and will reverse only when convinced that the circuit court has

abused its discretion in failing to grant a new trial.” Id. (quoting Boone v. State, 973 So. 2d

237, 243 (Miss. 2008)).

¶17.   In support of his claim that the State failed to prove its case with sufficient evidence,

and that his presence in the vehicle with Nichols is not proof of the commission of any crime,

Ragland cites the following cases: McRee v. State, 732 So. 2d 246 (Miss. 1999); Corbin v.

State, 585 So. 2d 713 (Miss. 1991); Shepherd v. State, 403 So. 2d 1287 (Miss. 1981); and

McClain v. State, 198 Miss. 831, 24 So. 2d 15 (1945).

¶18.   In McClain, this Court reversed and rendered a defendant’s conviction for grand

larceny of an automobile, where the only evidence presented was a thumbprint of the

defendant found on the vehicle’s rear-view mirror by authorities after recovering the stolen

vehicle. McClain, 198 Miss. at 836-37, 24 So. 2d at 16. McClain held that, while the

thumbprint was conclusive evidence of the defendant’s identity and presence in the vehicle,



                                               8
it alone was not “equivalent to evidence of guilt of a particular crime.” McClain explained:

“No witness testified to having seen appellant in Clarksdale on the night the car was stolen,

or on the day it was recovered; and, as stated, there is no evidence in the record of any kind

as to when, or under what circumstances, this print was made on the rear-view mirror.”

¶19.   Shepherd reversed and rendered a burglary conviction, finding that the evidence

presented justified no more than a suspicion. Shepherd, 403 So. 2d at 1288. Property

consisting of knives and other various items was stolen from an auto parts store some time

during the night. Id. at 1287-88. That same night, before anyone had discovered the

burglary, officers patrolling the area noticed the defendant’s truck parked in an alley next to

a laundromat located a few hundred yards from the auto parts store. Id. at 1288. The officers

stopped and spoke to the defendant, who told them he was there to wash his clothes. The

officers did not see any clothes, and they saw that the defendant had a new knife which he

said he had bought recently in Mobile. The officers did not arrest the defendant, nor did they

take his knife. The next day after the burglary was discovered, one of the officers who had

spoken to the defendant the night before found numerous knives stolen from the auto parts

store, of the same brand the defendant was carrying, wrapped in a shirt lying next to the

laundromat. During the investigation, officers brought the defendant’s brother in for

questioning. He gave a written statement that the shirt found by the officers was “one that

my brother, Danny, had wore.” At trial, however, when called by the State as a witness, the

brother denied the shirt found and presented at trial was his brother’s. Id.




                                              9
¶20.   In assessing the sufficiency of the evidence, the Shepherd Court concluded that it

amounted to “no more than a suspicion.” Id. Shepherd noted that no one had testified that

the shirt found by authorities “was the shirt the defendant was wearing the day of the crime,

or whether he had a shirt on” when officers saw him the night of the crime. Id. One of the

two officers who had encountered the defendant that night did not testify at trial, and the

other could not remember at trial. Id. Shepherd then reiterated that “Courts cannot permit

a conviction to stand based merely upon suspicion, Wooldridge v. State, 274 So. 2d 131

(Miss. 1973).” Shepherd, 403 So. 2d at 1288.

¶21.   Corbin reversed and rendered a burglary conviction, where the defendant was alleged

to have broken into a small grocery store sometime during the evening. Corbin, 585 So. 2d

713. Similar to McClain, the Corbin majority found the only proof of the defendant’s guilt

was fingerprint evidence taken from cigarette cartons allegedly stolen from the grocery store.

Id. at 715-16. The record evidence in Corbin showed that the same evening the grocery store

was burglarized, and before the burglary was discovered, a patrol officer had happened upon

an unidentified black male walking down the street a couple of blocks from the grocery store.

Id. at 714. As the officer approached him, the man dropped various items he was carrying

and ran. The items were later identified as goods taken from the grocery store and were

processed for fingerprints. Four latent prints taken from the cigarette cartons were matched

to the defendant. Id.

¶22.   Citing McClain, the Corbin Court found these facts alone did not prove the defendant

was the person who unlawfully entered the grocery store with intent to steal merchandise.



                                             10
Corbin noted that no fingerprints were recovered from the store to place the defendant at the

scene, and nothing else was presented to focus the possibilities of the fingerprints being

concurrent with the burglary. Id. at 715-16.

¶23.   Lastly, in McRee, this Court reversed and rendered a burglary conviction of a

dwelling, affirmed by the Court of Appeals, which was based entirely on circumstantial

evidence. McRee, 732 So. 2d 246. There, a residence allegedly was broken into on a Sunday

morning while the residents were at church. Id. at 247-48. Neighbors reportedly saw two

white males driving around the neighborhood that same morning in a vehicle later

determined to be the defendant’s. Id. One of the neighbors saw the vehicle drive past the

residence twice. Another neighbor saw the defendant drive onto the residence’s property and

up to the shop located on the side of the residence, and tap his horn. Id. at 248. The

neighbor confronted the defendant and asked him what he was doing there. The defendant

said he was looking for a girl named “Shanna.” After being told that “Shanna” did not live

there, the defendant left and did not return. When the homeowners returned from church,

they found their house had been forcibly entered and that a pocketknife was missing from

inside the home. Id.

¶24.   In reviewing the State’s evidence, the McRee Court found that, when viewed in the

light most favorable to the State, the evidence gave “equal or nearly equal circumstantial

support to a theory of guilt and a theory of innocence of the crime charged.” Id. at 250

(quoting Shields v. State, 702 So. 2d 380, 382 (Miss. 1997)). Specifically, the McRee Court

found the circumstantial evidence in the case was insufficient to prove the defendant was



                                             11
involved in the burglary to the exclusion of any other reasonable hypothesis, “particularly the

statements given by [the defendant] to the neighbor and later to law enforcement that he was

in the area looking for a young lady named Shanna.” Id. Therefore, “a reasonable jury must

necessarily have entertained a reasonable doubt.” Id. (citation omitted).

¶25.   We find McRee, Corbin, Shepherd, and McClain distinguishable from the case

before us. First, unlike in those cases, substantial direct evidence was presented in this case

as to who actually perpetrated the crime, and when it occurred. There never was any real

question at trial that Nichols was the person who committed the robbery inside the Krystal

restaurant at approximately 3:00 a.m. on November 17. Second, while Ragland’s alleged

participation in the crimes charged was predicated wholly on circumstantial evidence, that

evidence as a whole sufficiently negated any other reasonable hypothesis or theory of

innocence in the case.

¶26.   The vehicle Ragland was driving, in which Nichols was a passenger, was pulled over

by authorities at approximately 3:11 a.m. Recovered from the vehicle were a Colt .38

revolver, latex gloves and surgical masks, ammunition, and an envelope, along with a money

bag from Krystal. Latex gloves, similar to those used by Nichols, also were found on

Ragland’s person.

¶27.   Ragland told authorities he had not been to Krystal, and he did not know a gun was

in the vehicle or that the vehicle’s glove compartment contained an envelope of money from

Krystal. Photographs taken of interior of the vehicle and later submitted to the jury showed

latex gloves and a Krystal envelope on the passenger-side floorboard. The photographs



                                              12
showed surgical masks located in plain view in a compartment above the vehicle’s gear shift,

ammunition on the passenger-side floorboard, a money bag taken from Krystal located in the

glove compartment, and a revolver sitting in the vehicle’s center console.

¶28.   According to Ragland’s testimony at trial, Nichols had picked him up from an

apartment complex somewhere on Stateline Road shortly after 3:00 a.m. Nichols came inside

the apartment, where they talked for about ten minutes. When Ragland and Nichols left the

apartment, Nichols asked Ragland to drive. Shortly after leaving the apartment complex,

they were pulled over by law enforcement.

¶29.   Ragland maintains on appeal that the jury was required to accept this version of events

because it presents a reasonable hypothesis consistent with innocence. We disagree.

¶30.   During its case-in-chief, and again on rebuttal following the defense’s case-in-chief,

the prosecution presented evidence that no apartments complexes are located near Krystal.

According to Rumbarger, who pulled Ragland over, “[r]elative to the time, there’s no way

that anyone could get to an apartment complex between when I came in contact with them

and travel from Krystals.” According to Mucciarone, it is 3.5 miles from Krystal to the

nearest apartment complex and it takes approximately seven minutes to drive the distance.

And it is 4.7 miles from that complex back to the location where Rumbarger first spotted the

suspect’s vehicle, a distance that takes about ten to twelve minutes to drive.

¶31.   From the facts and circumstances of this case, the jury rationally could find that

Ragland’s explanation to authorities and his claim at trial, that Nichols had just picked him

up from an apartment complex, was implausible and false. The temporal proximity between



                                             13
the reported armed robbery and the time Ragland and Nichols were stopped by authorities

leads to a reasonable inference that Ragland was with Nichols at Krystal at the time of the

armed robbery and before it occurred. And, based on the evidence found inside the vehicle,

the jury reasonably could infer that Ragland was in possession of latex gloves found on his

person for the same reason Nichols was in possession of his: to participate in an armed

robbery planned and carried out at Krystal.

¶32.   Based on our review of the record, the proof in this case supports a reasonable

conclusion that Ragland and Nichols had a pre-arranged plan to rob Krystal, and that Ragland

aided and abetted Nichols in carrying out the armed robbery itself.

¶33.   Further, the evidence does not “preponderate heavily” against the jury’s guilty verdicts

such that allowing the verdicts to stand “would sanction an unconscionable injustice.” Flynt

v. State, 183 So. 3d 1, 11 (Miss. 2015). The jury is the judge of the weight and credibility

of the witnesses’ testimony, and it is free to reject all or some of each witness’s testimony.

Johnson v. State, 477 So. 2d 196, 206-07 (Miss. 1985).

¶34.   This issue is without merit.

       II. Whether accomplice instructions should have been given or whether
       those given were ineffective or incomplete.

¶35.   Ragland contends the following instructions were either unsupported by the evidence

or failed to conform with requirements of Milano v. State, 790 So. 2d 179 (Miss. 2001).

       Instruction 11 (S-4): Participation in an armed robbery is sufficient to make
       one a principal in the crime regardless of whether that participant was the
       person holding the weapon.




                                              14
       Instruction 12 (S-5): One who willfully, unlawfully, and feloniously aids,
       abets, assists, or otherwise encourages the commission of a crime is just as
       guilty under the law as if he or she had committed the whole crime with his or
       her own hand.

       Instruction 15 (D-3): An accomplice is a person who intentionally and
       voluntarily joins with another person in committing a crime.

¶36.   The State contends that Ragland is procedurally barred from complaining about these

instructions because he did not object to the State’s instructions at trial and submitted his own

accomplice instruction.

¶37.   This Court repeatedly has held “that an offended party’s failure to object to jury

instructions at trial procedurally bars the issue on appeal.” Neal v. State, 15 So. 3d 388, 397

(Miss. 2009) (quoting Smith v. State, 835 So. 2d 927, 939 (Miss. 2002)). Further, a

defendant will not be heard on appeal to complain about a jury instruction given at his

request. Musselwhite v. State, 212 Miss. 526, 54 So. 2d 911 (1951); Long v. State, 163

Miss. 535, 141 So. 591 (1932). Therefore, Ragland is left to a claim of plain error, review

of which is subject to this Court’s discretion, procedural bar notwithstanding. Thomas v.

State, 126 So. 3d 877, 879 (Miss. 2013).

¶38.   Ragland maintains that the State’s entirely circumstantial evidence against him is an

important factor in this case. Ragland cites Brazile v. State, 514 So. 2d 325 (Miss. 1987),

in which the defendant and his codefendant were arrested when they were discovered

speeding from the scene of a store burglary. After a seventeen-mile chase, their vehicle was

stopped. The defendant was the driver and his codefendant was the passenger. New

clothing, complete with hangers and price tags, was piled in the back seat of the car and in



                                               15
the trunk. The price tags indicated that the clothing had come from the store just burglarized.

At trial, the trial court provided an aiding-and-abetting jury instruction at the State’s request.

Id. at 325-26.

¶39.    The Brazile Court held that the instruction constituted reversible error and remanded

the case for a new trial. Id. at 326. Brazile found that, even though sufficient circumstantial

evidence showed that both defendants were present and actually participated in the

commission of the burglary, there was “no evidence that either of the defendants aided or

abetted the other.” Id. Brazile further found the instruction awkward and misleading as

written because it appeared to allow the jury to determine that, if both defendants committed

the crime, only the defendant, Clovis Brazile, could be found guilty. Id. The instruction also

erroneously implied that neither defendant needed to have been present at the burglary to be

found guilty. Id.

¶40.    We find Brazile inapplicable in Ragland’s case.          Unlike Brazile, the evidence

supported that Ragland aided and abetted Nichols, who, as already discussed, was shown to

be the actual perpetrator of the Krystal armed robbery. Such was not the case in Brazile, in

which no evidence was presented as to who actually committed the alleged burglary. Id. at

325-26. Here, having already found that the State presented sufficient evidence that Ragland

aided or abetted Nichols in the commission of the armed robbery at Krystal, we find no merit

in Ragland’s claim that an accomplice instruction was not supported by the evidence in this

case.




                                               16
¶41.   As to the complained-of instructions themselves, Ragland contends they failed to

conform with the requirements of Milano, in which this Court adopted the Fifth Circuit’s

“Pattern Jury Instruction on Aiding and Abetting” in order to cure confusion over the issue.2

¶42.   In Milano, this Court found error with jury instructions submitted in the case that

permitted the jury to find the defendant guilty as an aider or abettor if the defendant “did any



       2
           The instruction is as follows:

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

       If another person is acting under the direction of the defendant or if the
       defendant joins another person and performs acts with the intent to commit a
       crime, then the law holds the defendant responsible for the acts and conduct
       of such other persons just as though the defendant had committed the acts or
       engaged in such conduct.

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

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

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

Milano, 790 So. 2d at 185 (quoting Fifth Circuit Pattern Jury Instructions (Criminal) 2.06
(Aiding and Abetting) (Agency) (1998)).

                                              17
act which is an element of the crime.” Milano, 790 So. 2d at 184-85. Milano instructed that

the problem with such an instruction is that it could be perceived as relieving the State of its

burden of proof as to every element of the crime charged beyond a reasonable doubt. Id.

¶43.   But, while the Milano Court found the complained-of instructions in the case before

it erroneous, the instructions nonetheless constituted harmless error when read together with

other instructions that properly stated the law and set forth all the elements of the offense the

State had to prove beyond a reasonable doubt. Id.

¶44.   Here, Ragland acknowledges that a proper elemental instruction can cure a defective

aiding-and-abetting instruction. But he contends that jury instruction ten, the elemental

instruction setting forth the elements of armed robbery, exacerbated the incorrect accomplice

instructions rather than cured them, because instruction ten references jury instruction nine,

which Ragland contends is an elemental instruction for conspiracy.

¶45.   Ragland argues that, at a minimum, the cross-referencing of these instructions

confused or misled the jury. And when read together, instructions nine and ten also created

a circumstance in which the jury could have found that, if Ragland committed the crime of

conspiracy, then he automatically was guilty of armed robbery.

¶46.   We disagree. As the State points out, while instruction nine discusses conspiracy, it

is not an elemental instruction. The elemental instruction for the crime of conspiracy was

set forth in jury instruction eight. Instruction nine, however, instructs the jury that if it found

Ragland and Nichols conspired to commit armed robbery, it might consider the acts and




                                                18
statements of either man committed in furtherance of the robbery as the acts, statements, and

declarations of each. Instruction nine’s last paragraph directs the jury as follows:

       Therefore, if you find from the evidence in this case, beyond a reasonable
       doubt, and to the exclusion of every other reasonable hypothesis other than that
       of guilty, that on or about November 17, 2014, [Ragland] conspired with
       [Nichols] to commit the crime of Armed Robbery, then you may consider the
       acts, statements and declarations of [Ragland] or [Nichols] committed in
       furtherance of the crime as the acts, statements and/or declarations of each.

¶47.   We agree with the State that when read together, instructions nine and ten did not

create a circumstance that, if the jury found Ragland committed the crime of conspiracy, he

then also was guilty of the crime of armed robbery. Instruction ten still required the jury to

find from the evidence that Ragland committed all the elements of armed robbery, and if the

State “failed to prove any one or more of these elements beyond a reasonable doubt and to

the exclusion of every other reasonable hypothesis other than that of guilt, then you shall find

the Defendant not guilty.”

¶48.   Here, we find that when read together, instructions nine, ten, eleven, twelve and

fifteen do not constitute plain error.

       III. Ineffective Assistance of Counsel

¶49.   Ragland’s appellate counsel claims trial counsel was constitutionally ineffective for

failing to object to the State’s accomplice instructions and for submitting a deficient

accomplice instruction of his own. For reasons just discussed, this was not ineffective

assistance of counsel.




                                              19
¶50.   Ragland also has submitted a pro se reply brief, asserting additional ineffective-

assistance-of-counsel claims. The record on appeal, however, does not allow us to address

these additional claims on the merits.

¶51.   Generally, ineffective-assistance-of-counsel claims are more appropriately brought

in a post-conviction proceeding. Archer v. State, 986 So. 2d 951, 955 (Miss. 2008). On

direct appeal, a reviewing court is limited to the trial-court record, which often times contains

insufficient evidence to address an ineffectiveness claim adequately. Id.

¶52.   That is the case here with Ragland’s ineffectiveness claim(s). Therefore, we dismiss

Ragland’s ineffective-assistance-of-counsel claim(s) without prejudice, preserving Ragland’s

right to bring the claim(s) in a properly filed motion for post-conviction relief, if he so

chooses.

                                     CONCLUSION

¶53.   For the aforementioned reasons, we affirm Ragland’s convictions of armed robbery

and conspiracy to commit armed robbery.

¶54.   AFFIRMED.

     WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL AND ISHEE, JJ.,
CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY KITCHENS, P.J. CHAMBERLIN, J., NOT PARTICIPATING.


       KING, JUSTICE, DISSENTING:

¶55.   Because insufficient evidence exists to support Ragland’s convictions, I would reverse

and render his convictions. I therefore respectfully dissent.




                                               20
¶56.   Regarding Ragland’s armed robbery charges, the State conceded that Ragland was not

the individual who entered and robbed Krystal; instead, it argued that Ragland was an aider

and abettor. A person “who is present at the commission of a criminal offense and aids,

counsels, or encourages another in the commission of that offense is an ‘aider and abettor’

and is equally guilty with the principal offender.” Swinford v. State, 653 So. 2d 912, 915

(Miss. 1995) (internal quotations omitted). So to convict Ragland for armed robbery, the

State had to prove beyond a reasonable doubt that Ragland was both present at the robbery’s

commission and that he aided, counseled, or encouraged Nichols in the commission of the

robbery.

¶57.   The State did produce sufficient evidence that Nichols robbed Krystal. Moreover, due

to the evidence regarding the short time frame between the robbery and the stop, the State

put forth sufficient evidence to support a finding that Nichols did not pick Ragland up after

the robbery as Ragland had informed law enforcement. While these facts may be sufficient

to establish that Ragland was an accessory after the fact3 to the robbery, they are plainly

insufficient to establish beyond a reasonable doubt that Ragland aided and abetted Nichols

in the armed robbery.

¶58.   The pertinent question here is whether, when the evidence is viewed “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.” Cotton v. State, 144 So. 3d 137, 142 (Miss. 2014)

(internal quotations omitted). The State failed to put forth any evidence of an act it contends

       3
       Ragland was not charged with accessory after the fact. See Miss. Code Ann. § 97-1-
5 (Rev. 2014).

                                              21
Ragland committed to aid, counsel, or encourage the armed robbery. Instead, it asked the

jury to speculate that because Ragland was with Nichols after the crime occurred, because

some evidence indicated that Ragland may have known about the crime after the crime

occurred, and because some evidence existed that Ragland may have helped Nichols after

the crime occurred, Ragland therefore must have aided and abetted Nichols in committing

the crime.

¶59.   The majority argues that the evidence regarding the time it took to get from Krystal

to the apartment complex “lends to a reasonable inference that Ragland was with Nichols at

Krystal at the time of the armed robbery, and before it occurred.” Yet, it is undisputed that

Nichols was the lone robber inside the Krystal. At best, this evidence leads to a reasonable

inference that Ragland was in the car at the time Nichols robbed Krystal; yet, nothing in that

inference shows how Ragland acted to aid, counsel, or encourage the armed robbery. Indeed,

nothing in that inference shows that Ragland even had knowledge that Nichols intended to

commit the robbery before it occurred. For example, Nichols’s revolver could have easily

been concealed from Ragland before the robbery. Yet, the majority would convict a person

simply for an inference that, shortly before a crime, the person was in the presence of

someone else who committed that crime. The majority also points to the evidence in the car

and that latex gloves were found on Ragland’s person as evidence that he planned to

participate in the armed robbery. The evidence in the car consisted of the proceeds of the

robbery and items that could have easily been concealed from Ragland prior to the robbery.

Thus, at best, the evidence in the car leads to an inference that Ragland knew of the robbery



                                             22
after it occurred. But nothing about this evidence points to how Ragland acted to aid,

counsel, or encourage the armed robbery, or that he even knew it was going to occur. The

latex gloves likewise could easily have been given to Ragland after the robbery in case he

handled its proceeds. And in any event, finding latex gloves on the person of a custodian,

standing alone, is hardly sufficient evidence to convict Ragland of armed robbery and

conspiracy.

¶60.   “In circumstantial evidence cases, the State is required to prove the defendant’s guilt

not only beyond a reasonable doubt, but to the exclusion of every reasonable hypothesis

consistent with innocence.” McRee v. State, 732 So. 2d 246, 250 (Miss. 1999). As the

majority admits, this case is “predicated wholly on circumstantial evidence.” Maj. Op. at

¶25. This evidence, namely that items indicating the completion of a crime were in

Ragland’s line of sight and that the timeline of events indicates that Ragland was likely with

Nichols before the robbery, is plainly not sufficient to exclude every reasonable hypothesis

consistent with innocence. One reasonable hypothesis consistent with innocence for the

crimes charged is that Ragland became aware that Nichols committed a robbery only after

the completion of the robbery. “This evidence viewed in the light more favorable to the

State[] gives equal or nearly equal circumstantial support to a theory of guilt and a theory of

innocence of the crime charged.” Id. (internal quotations omitted). “Thus, a reasonable jury

must necessarily have entertained a reasonable doubt.” Id. (internal quotations and

alterations omitted). The evidence was therefore insufficient to convict Ragland of armed

robbery as an aider and abettor.



                                              23
¶61.   Nor was the evidence sufficient to convict Ragland of conspiracy to commit armed

robbery, which required the State to prove beyond a reasonable doubt that Ragland entered

into an agreement to commit the armed robbery. See Miss. Code Ann. § 97-1-1 (Rev. 2014).

In the same way that the State failed to show any act Ragland committed to aid or abet the

armed robbery, it likewise failed to introduce evidence that Ragland agreed to anything,

except perhaps to Nichols’s flight after the crime.

¶62.   Because the State’s evidence was woefully insufficient to convict Ragland of armed

robbery or conspiracy to commit armed robbery, I would reverse and render his convictions.

       KITCHENS, P.J., JOINS THIS OPINION.




                                             24
