DATE OF JUDGMENT: 02/20/96 TRIAL JUDGE: HON. JOSEPH H. LOPER, JR. COURT FROM WHICH APPEALED: GRENADA COUNTY CIRCUIT COURT
TRIAL COURT DISPOSITION: CT I SALE OR TRANSFER OF LESS THAN ONE OUNCE OF MARIJUANA: CT II SALE OR TRANSFER OF COCAINE A SCHEDULE II CONTROLLED SUBSTANCE: CT I 3 YRS; CT II 40 YRS; CT 1 AND CT II UNDER THE SENTENCE ENHANCEMENT PROVISION; CT I CONCURRENT TO CT II
Before Thomas, P.j., King, And Payne, JJ.
The opinion of the court was delivered by: Payne, J., For The Court
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
NATURE OF THE CASE: CRIMINAL - FELONY
Rayford Moss, Jr., was convicted of one count of sale of marijuana and one count of sale of cocaine. The trial court sentenced Moss under the enhancement statute to serve a term of three years in count I and a term of forty years in count II. The sentences are to be served in the custody of the Mississippi Department of Corrections with the sentence in count I to run concurrently to the sentence in count II. Moss's motion for JNOV or, in the alternative, a new trial was denied. Finding no error, we affirm the judgment of the circuit court.
As part of an undercover operation, police officer David Porter and the confidential informant, Paul Shelton, went to the residence of Rayford Moss for the purpose of purchasing narcotics. Officer Porter was wired with a body transmitter and his automobile was equipped with surveillance equipment. Upon arrival at Moss's house, Shelton motioned for Guy Flowers, who was standing outside of Moss's house, to come over to the vehicle. Shelton asked Flowers where Moss was and informed him that he and Porter wanted to purchase narcotics. Shelton then went inside the house and shortly thereafter, returned to get Porter. The testimony indicated that once inside the house, Shelton introduced Porter to Moss and that Porter then gave Moss $160 for a leafy substance that later tested positive for marijuana. Porter next inquired about purchasing cocaine, and Moss instructed him to come back later to get the cocaine. Several hours later, Porter returned to Moss's house where he, Flowers, and Moss went into a back room in the house. Porter testified that Moss gave him a large rock of cocaine and that Moss instructed Porter to give the money to Flowers. Porter testified that he then gave Flowers $500 in cash.
Approximately two months later, Shelton encountered Moss at a convenience store. Shelton testified that Moss asked him to come to his house to which he complied. Shelton stated that when they got to Moss's house, Shelton, Moss, Moss's cousin, Rayford Eskridge, and Flowers got into Moss's car and went to a car wash in Oakland. Shelton testified that Moss then demanded to know "who was that man name on those papers." Shelton stated that when he replied that he did not know, Moss and Flowers assaulted him and demanded that he talk.
Following the State's case, Moss chose not to present any evidence in his own behalf. The jury subsequently returned a verdict of guilty for the sale of marijuana and the sale of cocaine. Feeling aggrieved, Moss filed this appeal asserting two issues.
I. WHETHER THE TRIAL COURT ERRED IN FAILING TO GIVE A LIMITING INSTRUCTION.
Moss takes issue with the testimony of Paul Shelton in which Shelton related the details of the alleged assault on his person by Moss two months after the drug transaction for which Moss is being tried. At trial, Moss objected to the admission of Shelton's testimony regarding the assault on the ground that Mississippi Rules of Evidence 404(b) and 403 prohibited the admission of this type of testimony. The trial court overruled the objection stating that the testimony was proof of guilty knowledge and that the evidence was more probative than prejudicial. On appeal, Moss does not argue that the trial court erred in admitting the testimony but that the trial court erred in failing to give a limiting instruction. Moss argues that wherever an objection based on 404(b) is overruled, the court must, sua sponte, give a limiting instruction should the evidence prove to be admissible under the 403 balancing test.
The State argues that any error in failing to give a limiting instruction was harmless at best in light of the overwhelming weight of the evidence against Moss. We agree. Moss is correct that a limiting instruction should have been given sua sponte by the ...