Lead Opinion
for the Court:
¶ 1. Ted W. Stone was convicted of the aggravated assault of Carolyn Stone and was sentenced to twenty years’ incarceration and a $4,000 fine. Having carefully considered the record and the briefs filed on behalf of Ted Stone and the State, we discern no error. Accordingly, we affirm Stone’s conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶ 2. Ted Stone (“Stone”), Kay Stone Hill, and Carolyn Stone are the children of Seretha Stone. A grand jury indicted Stone for the aggravated assault of Carolyn Stone on July 26, 2010. Stone’s jury trial began on October 5, 2010, in Itawam-ba County Circuit Court. Due to prior threats and assaults, Carolyn previously had obtained a restraining order requiring Stone to stay off her property. However, on June 7, 2010, Stone entered Carolyn’s house.
¶ 3. Carolyn, Kay, and Seretha testified to the following events: Stone pushed his way past Seretha and into the house. Once in the house, he sat in a chair in the living room. Carolyn then entered the room and stood behind a recliner. Seretha left the room to avoid interfering in the conversation between Carolyn and Stone. Without provocation, Stone began beating Carolyn with his walking cane. Upon hearing a noise in the living room, Seretha returned to see Stone beating Carolyn. Seretha grabbed the cane and tried to take it away from Stone. As she was pulling on the cane, the rubber tip came off. Kay attempted to thwart the attack by striking Stone with a cordless telephone. Stone pushed her into a chair. Kay ran outside and called the police. Seretha testified that, after the scuffle, Stone “turned around and left and we called 911[,]” but that the police were already on their way because of Kay’s call.
¶ 4. Stone offered a different account at trial. He testified that Seretha allowed him to enter the house. He sat in a chair in the living room, and was talking with Kay when Carolyn entered the room and began berating Seretha for allowing Stone to enter the house and arguing with Stone about the ownership of the house. Carolyn initiated the violence when she picked up the cordless phone and began striking Stone with it. He told her to stop, but she continued. He hit a footstool with his cane, at which point he conjectured thát the cane’s rubber tip must have fallen off. He then hit Carolyn “as hard as [he] could” in an attempt to get her away from him. He then agreed to leave, and, as he was limping out with his cane, Carolyn pushed him. As he was falling, he again hit her with the cane, this time causing her head to bleed. He testified that he awoke on the floor some time later and left the house immediately.
¶ 5. Carolyn also testified that, between 2002 and 2005, Stone had slapped her; hit her in the face with a flyswatter; held a baseball bat over her head while she was in bed while threatening to “beat [her] to a pulp” and kill her; and threatened to stalk, kill, and beat her with a hammer. In January 2005, Carolyn obtained a restraining order prohibiting Stone from entering
¶ 6. At trial, the State sought to introduce into evidence Stone’s multiple threats and attacks of Carolyn to prove motive, intent, preparation, plan, knowledge, and absence of mistake or accident. The State asserted that evidence of these threats and prior assaults was necessary to reveal the complete story of the crime for which Stone was being tried. The trial court agreed, and, after determining that the evidence was more probative than prejudicial, allowed the State to introduce evidence of Stone’s prior bad acts. After the State had presented its case in chief, Stone’s counsel moved for a directed verdict, arguing only that the State had not proven that Stone had manifested indifference to human life. The trial judge denied the motion for a directed verdict. After receiving proper instruction from the court, the jury returned a guilty verdict of aggravated assault. Stone was sentenced to twenty years, with four years suspended, and a fine of $4,000. The court denied Stone’s motion for judgment notwithstanding the verdict.
ISSUES
¶ 7. Stone’s appellate counsel raised the following issues:
(1)Whether the trial court erred in denying Stone’s motion for a directed verdict, because the State did not present sufficient evidence for the jury to find Stone guilty of aggravated assault.
(2)Whether the trial court erred in admitting evidence of Stone’s prior bad acts.
¶ 8. Subsequently, Stone filed an inartful pro-se supplemental brief. Stone apologized “to the Court ... for [his] inclusion of facts which may be deemed inadmissible in consequence of their absence from the record.... ” The supplemental brief raised four issues:
(1) “Ineffectual Assistance of Counsel” for trial counsel’s failure to seek a change of venue, failure to challenge an ex-parte order excusing Assistant District Attorney Dennis Farris from testifying, failure to subpoena several witnesses that Stone had requested be called, and failure to subpoena Stone’s medical records.
(2) A claimed Miranda2 violation related to Stone’s apology to Carolyn during his preliminary hearing, a recording of which was admitted at trial and played for the jury.
(3) “There was no use of a ‘deadly weapon’ nor intent to inflict ‘serious bodily injury.’ ”
(4) “Illegal and disparate sentence.”
ANALYSIS
I. Standards of Review
¶ 9. “This Court reviews the denial of a motion for a directed verdict de novo.” Parker v. State,
¶ 10. First, we direct our attention to the pro-se claims.
¶ 11. We decline to address Stone’s ineffective-assistance claim, because it contains numerous allegations outside the record. This Court has long held that it cannot consider that which is not in the record. See, e.g., State v. Cummings,
III. Stone’s claim of a Miranda violation is procedurally barred, because he never asserted it at trial.
¶ 12. Stone never asserted a Miranda violation at trial. “[Tjhis Court has ... consistently held that errors raised for the first time on appeal will not be considered .... ” Stockstill v. State,
IV. Stone’s sentence of twenty years’ imprisonment with four years suspended and a $4,000 fine was not illegal.
¶ 13. Imposing a sentence of twenty years’ imprisonment with four years suspended and a $4,000 fine was within the trial court’s statutory authority for the crime of which Stone was convicted. Mississippi Code Section 97-3-7(2) provides that a defendant convicted of aggravated assault “upon a person who is sixty-five (65) years of age or older or a person who is a vulnerable adult,” may be punished by a fine of up to $5,000 and up to thirty years’ imprisonment. Miss.Code Ann. § 97-3-7(2) (Rev.2006). As the record reveals that Carolyn was seventy-three years old at the time of the aggravated assault, Stone’s sentence was within the statutory limits for the aggravated assault of a person who is sixty-five years of age or older. Accordingly, this argument is without merit.
V. The pro-se argument that there was no use of a deadly weapon or intent to inflict serious bodily injury is repetitive of an issue raised by appellate counsel.
¶ 14. The pro-se argument that there was no use of a deadly weapon or intent to inflict serious bodily injury is essentially the same as the argument of Stone’s counsel that the trial court erroneously denied a directed verdict for the State’s failure to prove all elements of aggravated assault. Therefore, our analysis of this pro-se argument is merged with our analysis of appellate counsel’s argument in the following section. See infra ¶¶ 15-17.
¶ 15. We find that the trial court did not err in denying Stone’s motion for a directed verdict, because the evidence was more than sufficient for the jury to find Stone guilty of aggravated assault. Stone argues on appeal that the State failed to prove the essential elements required for an aggravated-assault conviction. He asserts that the walking cane with which he beat Carolyn is not a deadly weapon, her injuries were not serious enough for an aggravated-assault conviction, and the State offered no evidence of circumstances manifesting extreme indifference to human life.
¶ 16. Stone’s claims are without merit. Stone relies on Brooks v. State,
¶ 17. A case more closely analogous is Simmons v. State, in which the court found that a pen used to stab a victim in the neck was a deadly weapon. Simmons v. State,
VII. The trial court did not err in admitting evidence of Stone’s prior threats and assaults of Carolyn.
¶ 18. We find that the trial judge did not abuse his discretion in admitting evidence of Stone’s history of threats and violence directed toward his sister “for motive, for opportunity, for his intent, his preparation, his plan and what he was going to do, and knowledge, he’s the one that did it for the purpose of his identity and certainly absence of mistake or accident on his part.” All relevant evidence is generally admissible, absent an exception. Miss. R. Evid. 402. Evidence is relevant when it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Miss. R. Evid. 401. This definition is extremely broad, so that evidence is relevant and should be admitted “if the evidence has any probative value at all.” Adcock v. Miss. Transp. Comm’n,
[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Miss. R. Evid. 404(b). To determine whether evidence of prior bad acts is admissible under these rules, we use a two-pronged analysis: “[t]he evidence offered must (1) be relevant to prove a material issue other than the defendant’s character; and (2) the probative value of the evidence must outweigh the prejudicial effect ... [as] required by Mississippi Rule of Evidence 403....” Welde v. State,
¶ 19. We find that the trial court did not abuse its discretion in finding that the evidence of Stone’s prior threats and assaults of Carolyn was relevant to prove noncharacter issues, including an element of aggravated assault with a deadly weapon.
(1) the defendant attempted to cause or purposely or knowingly caused
(2) bodily injury to another
(3) with a deadly weapon or other means likely to produce death or serious bodily harm.
Miss.Code Ann. § 97-3-7(2) (Rev.2000) (emphasis added). Evidence of other threats and assaults of Carolyn before the assault at issue was probative in determining that Stone purposely or knowingly acted on this occasion. The evidence was also probative for other noncharacter purposes, including Stone’s intent, motive,
¶ 20. We likewise find that the trial court did not abuse its considerable discretion in finding that the probative value of the evidence outweighed its prejudicial ef-feet. The question on review is not whether this Court would have admitted the evidence, but whether the trial court abused its discretion in doing so, for “the exclusion of prejudicial evidence is permissive; that is, if a trial court determines that the prejudicial effect of evidence substantially outweighs its probative value, it is not obligated to exclude the evidence, but may do so at its discretion.” Ross v. State,
it appears to me they’re offering it for all of them, for motive, for opportunity, for his intent, his preparation, his plan and what he was going to do, and knowledge, he’s the one that did it for the purpose of this identity, and certainly absence of mistake or accident on his part. I think it goes to show all of them. And it’s not being offered to show character.
Looking at Rule 403 and 404 and performing a balancing test the Court finds that since it is the same victim that the State is alleging in this case that was assaulted that the bad acts all resulted against the same victim before, the Court finds that it is more probative than prejudicial and the Court is going to allow the prior bad acts in.
Thus, the trial judge conducted the Rule 408 balancing test and relied on his own sound judgment to reach the conclusion that the evidence was admissible. As trial courts are not required to exclude evidence upon applying the test and finding that the prejudicial impact of the evidence outweighs its probative value, we cannot conclude that the judge abused his extensive discretion in admitting evidence of Stone’s prior bad acts.
¶ 21. Moreover, even if the trial court had erroneously admitted the evidence, its error would not warrant reversal. “Unless this judicial discretion is so abused as to be prejudicial to the accused, we will not reverse [the trial judge’s] ruling.” Irby v. State,
CONCLUSION
¶ 22. Finding no error by the trial court, we decline to reverse Stone’s conviction. Accordingly, we affirm Stone’s conviction and sentence in the Itawamba County Circuit Court.
¶ 23. CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FOUR (4) YEARS SUSPENDED, WITH CONDITIONS, AND A FINE OF $4,000.00, AFFIRMED. APPELLANT SHALL BE GIVEN CREDIT FOR TIME SERVED.
Notes
. A 911 call, in which Kay told the operator that she, her sister, and her mother had been attacked, was played for the jury.
. Miranda v. Arizona,
. At trial, Stone argued only that the State had not proven circumstances manifesting extreme indifference to human life.
. That the multiple instances of aggression toward Carolyn occurred some years prior to
. "Motive” has been defined as "some inner drive, impulse, intention, etc. that causes a person to do something or act in a certain way....” See Powers v. Vista Chem. Co.,
. Evidence of prior threats and assaults of the same victim, Carolyn, could support an inference of a common plan, scheme, or system that Stone used repeatedly to control, abuse, and assault Carolyn. See People v. Sabin,
. We note that, while Justice Chandler does not address Rule 401, he seems to agree that the evidence was relevant under that rule, but faults the trial court for its Rule 404(b) and Rule 403 analysis.
. While Justice Chandler maintains that the trial court was required to identify the exception that applies and "find that the evidence is probative of each 404(b) exception it finds applicable[,]” our caselaw reveals that failure to identify and separately evaluate evidence for each 404(b) other purpose does not require reversal. See Gore v. State,
Concurrence Opinion
concurring in part and in result:
¶ 24. As stated by the majority, Carolyn Stone testified “that between 2002 and 2005, Ted Stone had slapped her; hit her in the face with a flyswatter; held a baseball bat over her head while she was in bed while threatening to ‘beat [her] to a pulp’ and kill her; and threatened to stalk, kill, and beat her with a hammer.” The trial judge held these prior bad acts were admissible
for motive, for opportunity, for his intent, his preparation, his plan and what he was going to do, and knowledge, he’s the one that did it for the purpose of his identity and certainly absence of mistake or accident on his part.
¶25. The problem here, as Justice Chandler points out in his dissent, is that Ted’s prior bad acts were obviously not admissible for all these purposes. For instance, I find irrational the argument that Ted’s “motive” for hitting Carolyn with the cane in 2010 was that he had hit her eight years before. While proof that Carolyn had hit Ted on a prior occasion might have provided Ted with a motive, I cannot imagine the prosecutor attempting to persuade the jury that his reason for wanting to hit Carolyn with the cane was that he had hit her before.
¶ 26. Lawyers frequently attempt to persuade judges to admit character evidence by saying something similar to the following: “Judge, we’re offering this under 404(b) for motive, opportunity, intent, preparation, plan, knowledge, identity and absence of mistake.” Unfortunately, many judges are persuaded by this improper argument without first requiring the proffering lawyer to identify and explain the alternative purpose of the evidence. As stated in an excellent law school evidence text:
Contrary to actual practice, by some attorneys and judges, [the Rule 404(b) ] list [of potential alternative purposes] is not a mantra, the formulaic chanting of which magically opens the door to the introduction of otherwise inadmissible character evidence at trial.9
¶ 27. That clearly is exactly what happened here. The prosecutor chanted the mantra, the door magically opened, and the trial judge admitted the improper character evidence.
¶ 28. What should have been done here is not complicated. Each noncharacter purpose listed in Rule 404(b) “has a particular set of proof requirements that must be met before evidence can be introduced under that category.”
If Rule 404(b) is used as a pretext for the introduction and misuse of character evidence at trial, the potential prejudice to the accused is substantial. The jury could decide the ease based on propensity evidence, short-circuiting the burden of proof and effectively holding the accused liable for all his past misdeeds. The constraints posed by Rule 404(a) and Rule 405 could, moreover, prevent the accused from mounting an effective defense by first requiring him to identify a pertinent character trait to defend andthen limiting him to proof by reputation or opinion testimony. 11
¶29. While I believe the trial judge committed error in failing to require the prosecutor to identify and explain the particular noncharacter purpose of the evidence before admitting the evidence of Ted’s prior bad acts, the evidence of Stone’s guilt was overwhelming, so the error was harmless. I therefore join the majority’s result, but not its reasoning.
LAMAR AND CHANDLER, JJ., JOIN THIS OPINION IN PART.
. Christopher W. Behan, Evidence and the Advocate: A Conceptual Approach to Learning Evidence 173 (2012).
. Id.
. Id.
Dissenting Opinion
dissenting:
¶ 30. I respectfully dissent. I would find that the trial court’s admission of Stone’s prior bad acts under Mississippi Rules of Evidence 404(b) and 403 constituted an abuse of discretion. The State made no effort to specify which Rule 404(b) exception applied, and then the trial court erroneously found that all of them applied. For this reason, the trial court’s balancing of prejudice with probative value under Rule 403 was flawed. The error in admitting Stone’s prior bad acts was not harmless because Stone was forced to testify to attempt to mitigate the prior-bad-acts evidence. Therefore, I would reverse and remand for a new trial.
¶ 31. I restate the evidence of Stone’s prior bad acts that was admitted at his trial. While the crime occurred in 2010, all of the prior bad acts occurred in 2005 or earlier. The victim, Stone’s sister Carolyn, testified that she and Stone had begun to have problems in 2002 or 2003. She testified that, at that time, Stone had made threats that he was going to stalk her and beat her with a hammer; that he had behaved in an angry and explosive manner; and that he had destroyed her property, including a painting. His other sister, Kay, testified that Stone had made threatening phone calls. Kay and Carolyn testified about an incident in which Carolyn was' in bed, and Stone had threatened to “beat her to a pulp” with a baseball bat. Stone retreated when Kay approached him wielding an iron skillet. According to Kay, this incident had occurred five or six years earlier; Carolyn said it had occurred in 2003. Carolyn also testified that, about four or five years ago, Stone had slapped her in the face, once with his hand and another time with a flyswatter.
¶ 32. I further observe that repeated reference was made throughout the trial to a restraining order which Carolyn asserted she had taken out against Stone. Kay, Seretha, and Carolyn all testified that Stone’s 2010 visit had violated this restraining order. A copy of the “restraining order” was admitted into evidence. A review of this document shows that the order actually consisted of Stone’s January 24, 2005, conviction for trespass and suspended sentence of six months, with the condition that he refrain from entering upon any of the lands or buildings of Carolyn, except for his own residence. Obviously, this six-month suspended sentence no longer was in effect in 2010, and Stone’s 2010 visit was not in violation of a restraining order.
¶ 33. The State filed a motion to allow evidence of Stone’s prior bad acts under Mississippi Rule of Evidence 404(b), which provides:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
¶ 35. At the hearing, the State argued that the evidence of Stone’s prior bad acts was admissible to show proof of every listed purpose in Rule 404(b): motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. The State also argued that evidence of Stone’s prior bad acts was necessary to present a rational and coherent story of the crime, to show why Carolyn and Kay had been afraid of Stone, and to explain why there was a restraining order against Stone.
¶ 36. Stone objected. He argued that the State had to specify which of the Rule 404(b) exceptions applied to the prior-bad-acts evidence. He argued that the prior bad acts were irrelevant because the elements of aggravated assault did not require the State to prove that the Carolyn had been afraid of Stone, because the 2005 and earlier incidents were too remote in time to be relevant to Stone’s intent in 2010, and because the “restraining order” actually was a conviction for criminal trespass with a conditional suspended sentence. In rebuttal, the State argued that, because a restraining order had been in place against Stone, the prior bad acts were not too remote in time. The State further argued that, without describing Carolyn’s fear in the past, it would be impossible for the State to present a rational and coherent story of what occurred in 2010.
¶ 37. The trial court admitted the evidence of prior bad acts, stating that:
[R]egarding [the State] not identifying which one of the factors under 404 they’re seeking to do it for, it appears to me they’re offering it for all of them, for motive, for opportunity, for his intent, his preparation, his plan and what he was going to do, and knowledge, he’s the one that did it for the purpose of his identity, and certainly absence of mistake or accident on his part. I think it goes to show all of them. And it’s not being offered to show character.
The trial court further found that the evidence was not more prejudicial than probative under Mississippi Rule of Evidence 403, because all of the acts had involved the victim of the crime for which Stone was on trial. The trial court offered to give a limiting instruction, but Stone’s counsel did not request one at the jury-instruction conference.
¶ 39. Rule 404(b) “exists to prevent the State from suggesting that, since a defendant has committed other crimes previously, the probability is greater that he is also guilty of the offense for which he is presently charged.” Robinson v. State,
The evidence offered must (1) be relevant to prove a material issue other than the defendant’s character; and (2) the probative value of the evidence must outweigh the prejudicial effect. The second part of this analysis is required by Mississippi Rule of Evidence 403, as Rule 403 is the ultimate filter through which all otherwise admissible evidence must pass.
Welde v. State,
¶ 40. In Hargett v. State,
¶ 41. As in Hargett, here, the trial court broadly applied all the Rule 404(b) exceptions by finding that the prior-bad-acts evidence was admissible for every exception. The trial court specifically addressed only two of those eight exceptions, identity and absence of mistake or accident. The court found that the prior-bad-acts evidence was relevant to identify Stone as the perpetrator. This finding was error, because Stone’s identity as the perpetrator was not in issue. The trial court also found that the prior-bad-acts evidence showed absence of mistake or accident. However, mistake or accident also was not in issue. Stone did not claim mistake or accident as a defense, and none of the evidence submitted by either party suggested that Stone had injured Carolyn by mistake or by accident. The trial court did not explain how the other exceptions applied, or why the probative value of the evidence for each Rule 404(b) purpose outweighed its prejudicial effect.
¶ 42. While the majority lists motive, intent, and absence of mistake or accident as the applicable exceptions, it likewise
¶ 43. I would find that, because the trial court overestimated the probative value by erroneously finding all the Rule 404(b) exceptions applicable, its balancing of the probative value versus prejudicial effect under Rule 408 was flawed and entitled to no deference. I would find that the probative value of the evidence to show motive was substantially outweighed by the prejudicial effect under Rule 403. In my opinion, the only conceivable nonchar-acter purpose for the evidence of Stone’s prior conduct toward Carolyn was to show that Stone was motivated by anger at his sister. But while the aggravated assault at issue occurred in 2010, the prior bad acts had occurred at least five years earlier. Contrary to the State’s argument, no restraining order was in place against Stone at the time of the aggravated assault. And Stone’s prior acts of threatening and slapping his sister five years previously had no apparent connection with his actions in 2010. For example, there was no showing that Stone’s reasons for his anger toward Carolyn in 2005 persisted into 2010.
¶ 44. In contrast, the prejudice to Stone was substantial. The evidence of Stone’s prior bad acts was thoroughly explored during the testimony of every family member who testified against Stone. These family members also testified numerous times that Stone’s presence at the house in 2010 had violated a restraining order. But as previously explained, there actually was no restraining order against Stone at that time. The prior-bad-acts evidence suggested a decision on an impermissible basis: that, because of Stone’s prior conflicts with his sister in which he had threatened and slapped her, he was more likely to be guilty of the charged assault. Further, the evidence of Stone’s propensity for conflict with his sister, along with the erroneous evidence that Stone had violated a restraining order, was the type of evidence with a strong tendency to prejudice the jury by playing on their emotions and sympathies. There is a substantial danger
¶ 45. Finally, I would And that the admission of Stone’s prior bad acts was not harmless error. This Court has held that an error will be deemed harmless if the same result would have been reached without the error. Tate v. State,
KITCHENS AND KING, JJ., JOIN THIS OPINION. DICKINSON, P.J., JOINS IN PART.
. This Court has held that whether to request a limiting instruction concerning Rule 404(b) evidence, and thereby draw the jury’s attention to the evidence, is a matter of trial
. The majority finds that the remoteness of prior bad acts evidence is a matter for the jury to weigh. It cites a case affirming the admission of prior acts of child molestation in a child-molestation case. Gore v. State,