IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2018-KA-00811-COA KEVIN LADEX T ER CARTER A/K/A “DECK” A/K/A KEVIN CARTER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 05/09/2018 TRIAL JUDGE: HON. JOSEPH H. LOPER JR. COURT FROM W HICH APPEALED: W INSTON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 10/01/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., McDONALD AND McCARTY, JJ. McDONALD, J., FOR THE COURT: ¶1. Kevin Ladexter Carter was convicted of second degree m urder, aggravated as s a ult, and f elon in p ossession of a f

irearm in the c i rcuit c ourt o f Wi n s t o n C o unty , M ississippi. Carter w as sentenced to serve f orty y ears on the second-degree m urder charge, twenty y ears

on the a ggravated-assault c harge, a nd ten y e ars on the f irearm charge, with the sentences running consecutively

. Carter appeals, claim ing e rror in the a dm ission of prior incidents of dom estic violence between him and the deceased. Finding no error, we a f f i rm the convictions and sentences.FACTS AND PROCEDURAL HISTORY

¶2. Angela Collier and Delisa J oy ce A ills were co-workers, f riends, and room m ates who lived in a t railer next door to Collier’s grandm other. Collier (age 40) and C arter had an onagain-of f -again relationship since they were t eenagers. But the rel a tionship h ad grown increasingly abusive, culm inating in Carter’s s hooting and killing C ollier on February 12, 2017. ¶3. On that evening, Aills was woken by a scream . Collier and Carter were a rguing in the bathroom and, grabbing a pocket knif e she kept on her TV, Aills r an t o C o l l ier’s call f or help. 1 She f

o und Collier on the f

loor of the bathroom and Carter with a rif le. Aills attem

pted
to stab Carter with her knif e so she could get C ollier out. Aills said C a r t e r h i t her in the shoulder with the stock of the gun. He then hit her in the f ace and stom

p ed and kicked her when she f

ell t o the f l oor, causing her severe f

a c ial injuries. 2 W hen Collier tried to intervene, Carter s tarted beating her a s well. Aills m anaged to g et out of the trailer, and she ran next door f or help. ¶4. Johnny Shum aker, Collier’s uncle, who lived with his m other in a t railer on the sam e property , cam e to A ills’s aid. 3 H e said he thought h e heard thunde r and “a ‘pow’ like lightning.” He saw Aills com e staggering across t he y ard, bleeding f rom her ey es. She told

1 A ills testif

ied th a t sh e an d C o llier k ep t n o w eap o n s o n th e p rem ises o th er th an A i lls’s p o ck et k n if

e . C o llier’s u n cle, Jo h n n y S h u m ak er, a l s o t e s t if ied th at C o llier f

eared g u n s an d w o u l d n o t ev e n tak e o n e th at w as o f f ered to h er to p ro tect h e rself

. 2 C arter’s b eatin g cru sh ed A ills’s ey e so ck ets an d sin u s cav ities.

3 A ills an d S h u m ak e r d ated at o n e p o i n t in tim e. 2Shum a ker that Carter had shot Collier and Shum aker called the police. 4 Shum a ker and Aills

returned to the trailer to f

ind Collier in the bedroom , bleeding heavily f rom a gunshot wound
to her l e g a n d u nable to com m unicate. Carter had lef

t t he scene. Em ergency p ersonnel arrived and transported Collier to the hospital where she died f rom the gunshot wound. ¶5. Both Aills and Shum a ker testif ied about prior dom e stic-violence incidents they had witnessed between C arter and Collier. A m onth earlier, on N ew Year’s Eve, Collier had run into Aills’s bedroom f

o r h elp. Carter f

ollowed her with a .40 caliber gun, which he had cocked. Aills lay on top of Collier to protect her. Shum aker, who was also present, heard Carter threaten Collier, say i ng he was going t o “bust [ h er] [ e xpletive] h ead.” Carter also said that he w ould kill C ollier a nd it was only A ill s’s and Shum aker’s presence t hat saved her “this tim e.” Shum a ker was able to get Carter out of the bedroom and Collier f iled dom estic abuse charges against Carter in justice court. 5 ¶6. On another occasion, Shum aker s a i d t h a t C o l l i er ran t o h is h ouse s cream ing that Carter was “

jum ping on h er.” Shum aker s aw Carter, who w as drunk, pursuing Collier with

a two-by

- f

our. Carter told Collier that he was “f ixing to bust [ her] [ e xpletive] head.” Carter then s a id he “knew how to get her” and he d o u s e d C o llier’s car with gasoline. He was prepared to set it on f

ire, but he ran when Collier called the police. ¶7. Shum aker testif

ied to another incident the sum m er bef ore, when Shum aker showed

4 A ills testif

ied th at sh e d id n o t h ear a g u n sh o t an d C o llier h ad n o t b e e n sh o t w h en sh e lef t t h e trailer t o seek h elp

. H o w ev er, sh e ad m itted th a t a t t h e tim e h er h ead w as rin g i n g f ro m h er in j u ries.

5 T h e S tate h ad C o llier’s af f id av it o n th is in c i d en t f

ro m j u stice co u r t b u t it d ecid ed n o t to in tro d u ce it at trial. 3Carter a photo o n his phone. C ollier believed it was a picture of a wom an, and she and

Carter began arguing. C ollier ran into the trailer, and Carter barred the b ack door. He then
went i n the f

ront door, and Sh u ma ker could s ee and hear them f ighting. S hum aker also testif i ed a bout another incident that occurred on Mother’s Day of 2016, when C ollier hugged cousins visiting f

rom N ebraska. Carter becam e enraged and slapped Collier. Shum aker saw her the next day , and she had noticeable bruises on her head. ¶8. Shum aker also testif ied that he had helped Collier change the locks on the trailer three tim es to keep C arter out. They placed double locks o n t he w ater-heater closet because Carter had com e in that way

as well. They

also nailed windows shut. ¶9. Af ter the shooting, b ut bef

o re Carter was apprehended, Carter called S hum aker three tim es. At f

irst Carter denied shooting Collier, but i n the third call, he adm itted he did it but that he not m ean to kill her. Moreover, while being transported t o the courthouse, the driver overheard Carter telling o ther inm ates that he did not d eliberately kill Collier—that “it was an accident.” ¶10. A grand jury of W i nston County , Mississippi, indicted Carter f or the m urder o f Collier and the assault on Aills. They also charged him with f elony possession of a f

irearm under Mississippi Code Annotated section 97-37-5(1) (Rev. 2 0 1 4 ) b ecause Carter had been previously

convicted of

com m ercial burglary

in 1999. ¶11. Prior to trial, Carter m oved to exclude testim ony a bout o ther acts o f violence against Collier. The court heard t h e testim ony , excluded a n i ncident that Shum aker had not personally

witnessed, but adm itted the testim ony ref e rred to above.

4¶12. At trial, Aills and Shum aker testif ied about the events on the night Collier was killed and about the other incidents of dom estic abuse. The m edical exam iner testif i ed that Collier had extensive bruising all o ver her body , including broken ribs on both sides, as w ell as the gunshot wound f

rom which she di ed. Law enf orcem ent of

f icers (including the transport driver) testif

ied about their investigation and Carter’s statem e nts. ¶13. Carter testif

ied as well. He adm itted that he and Collier w ere arguing in the bathroom when Aills c am e in and tried to stab him with her knif e. He said he hit Aills and Collier tried
to stop him

. Carter then hit Collier while h e tried to tell her that A ills h ad a knif e. He said Collier then tried t o get the knif e f rom Aills but that Aills t hen got f ree and cam e af

ter Carter again. Carter said h e t o o k the toilet seat and hit Aills in the f ace. He said that Collier intervened again a nd that he h i t her with the toilet seat as well. Collier m anaged to push h im
out of the bathroom , a nd Carter said he reached by the washer f or a rif l e that he had brought to the trailer a f

ew w eeks earlier. Carter stated that he cam e back in the bathroom to try to get Aills to put the k

nif e down. Collier, who was toweling of f Aills’s bleeding f

ace, saw the

r i f l e and grabbed it f

rom him

. C arter hit Collier in the f ace to get her to release it

. C a r t e r said Aills got up and joined in the struggle f or the gun when i t accidentally went of f in the bathroom , injuring Collier in the leg. Carter testif ied that he told Aills t o c all 911, but she had no m inutes on her phone. At this point, Carter said that Aills told him to leave while she got help. S o he lef

t. Regarding Aills’s a nd Shum aker’s testim ony of other acts of violence, Carter said they

were either lies or exaggerations. But he adm itted that h e and Collier had

a violent past and that she had pressed charges against him . He had no explanation f or the

5extent of

Collier’s injuries that the m edical exam iner had f ound. ¶14. The jury f

ound Cart e r g u i l t y o f s e c o n d

- d e g r e e m urder, aggravated assault, and possession of a f

irearm by a f

elon. The court sentenced him o n all three counts and denied Carter’s m otion f

or a new trial. C arter appeal s , c l a i m ing that the court erred in adm itting testim o ny of prior bad acts. STANDARD OF REVIEW ¶15. This court reviews a trial court’s ruling on the adm issibility of e vidence only upon a showing of abuse of discretion. L ewis v. State , 198 S o. 3d 431, 43 3 ( ¶ 7) (Miss. Ct. App. 2016). The trial judge enjoy s a great deal of discretion as to the relevancy and adm issibility of evidence, and this Court will not reverse the trial court' s ruling unless t he j udge a buses this discretion so as to be prejudicial to the accused.” Id

. a t 433-34 (¶7) (internal quotation m arks

om itted) (quoting Shaw v. State , 915 So. 2d 442, 445 (¶8) (Miss. 2005)). DISCUSSION ¶16. Carter contends that the court erred in allowing Shum aker and Aills to testif y about the prior incidents of dom estic violence between Carter a n d C ollier and, specif i cally , that the
court f ai l e d t o conduct the balancing test required in Mississippi Rule o f Evidence 403 on the record bef

o re allowing such testim ony . W e do not agree. ¶17. In g eneral, evidence of a def endant’s prior bad a cts is not adm issible under Rule 404 of the Mississippi Rules of E v i d e n c e i f entered to prove that the d ef endant acted in accordance with h is ch a r acter. The rule specif i cally states that “[ e]vidence of a crim e, wrong, or other act is not adm issible to prove a person’s character in order to show that on

6a p articular occasion the person acted in accordance with the character.” M.R.E. 404(b)(1).

But the rule does allow s uch evidence to b e adm i tted “f or another purpose, such as proving

m otive, opportunity , intent, preparation, plan, knowledge, identity , absence of m istak e, or lack of accident.” M .R.E. 4 04(b)(2). In addition, proof of other act s m ay be necessary f or the State to present a rational and coherent story about what happened even if it m ay reveal or suggest other crim es. Jones v. State , 920 So. 2d 465, 474 (¶29) (Miss. 2006). ¶18. Although evidence is perm issible under Rule 404(b)(2), it m ay still b e excluded if its probative value is o utweighed by un f a i r prejudice and other specif ic reasons identif

ied in Mississippi Rule o f Evidence 403: “The court m ay exclude relevant evidence if its probative value is substantially o u tweighed by a d a n g er of o ne or m ore o f the f ollowing: unf

air prejudice, conf

using the i ssues, m isleading the jury , undue d elay , wasting tim e , or needlessly presenting cum

ulative evi d e n c e . ” I n Pitchford v
. State , 45 So. 3d 2 16, 246 (¶155) (Miss. 2010), the Mississippi Suprem e C ourt held that the Rule 404(b) exceptions are subject to a Rule 403 balancing test. ¶19. Carter does n o t a r g u e t h a t h is prior abuse of Collier is not a proper R ule 404(b)(2) exception. W e indicated as m uch in Marbra v. State , 904 So. 2d 1 169, 1175 (¶23) (Miss. Ct. App. 2004), where we held that evidence of a ten-y ear pattern of d om estic violence against the m urder victim

was adm issible to show it was not an a c cident but a com m on schem e of phy sical violence. Here, Carter testif ied that the s hooting was an accident and said the sam e
to Shum aker and the transport driver. Theref ore, the State argues, and C arte r does not dispute, t hat testim ony of Carter’s prior abusive acts f ell under Rule 4 04(b)(2)’s list of

7perm issible uses.

¶20. But Carter takes issue w ith the court’s f ailure to say in i ts r

uling o n the record that it had perf orm ed the Rule 403 balancing test—i.e., t hat i t h ad weighed the probative value of this testim ony against the prejudicial im pact on Carter’s d ef

ense. Wh ile t he court did not specif ically say that it h a d , t h e r e c ord shows t hat Carter’s counsel argued to the court the prejudicial i m

p a ct of this testim ony

to Carter’s def

ense. In r esponse, the State argued that the prior dom estic-violence testim ony was n ot of f ered to show Carter was acting according
to his character, but to show h i s m otive and intent and t hat this shooting was n ot an accident. The State provided the Court with the Marbra o pinion as well as Moss v
. State , 727 So. 2d 720 (Miss. Ct. App. 1998). I n Moss , where the def endant shot and killed his wif e, the court adm itted testim ony f

rom three witnesses about Moss’s threats t hat h e was “ going to kill that b----” as well as the victim ’s statem ents to others prior to her death that Moss had b eaten and abused her. Moss , 727 So. 2d a t 724 (¶¶15-17). W e af f irm ed the c ourt’s actions, s a y ing that the evidence was n ot introduced to prove M oss’s character, but “to s h ow the escalating level of violence, culm inating in the crim e of m urder.” I d

. at 725 (¶19). Both cases also discuss the need f

or the trial court to c onsider the Rule 403 balancing test b e f o r e a d mi t t i ng the testim o ny . Although the court here did not specif ically m ention Rule 403, the record shows that the court reviewed both cases and argum e nts of counsel prior to m aking its ruling. ¶21. Carter m akes the s am e a rgum ent attem pted by the def

endant in Jones

. There, the triallevel court allowed testim ony a bout the def

endant’s p rior assault on the m urder victim

. Jones argued, am ong other things, that the court had f ailed to perf

orm an on-the-record Rule 403

8analy sis, and because of this the court had im properly adm itted the evidence. The suprem e
court disagreed a nd f

ound no error by the trial court. Af t er noting the broad d iscretion given
to our trial courts in evidentiary determ inations, the Court said t hat the Rule 4 03 b alancing task “is not one susceptible o f m echanical perf orm ance as i t asks onl y t h a t a judge rely on his/her own sound judgm ent.” Jones , 920 So. 2d at 476 (¶33)

. The Court s pecif ically addressed Jones’s argum ent, say ing: In asserting that his due process rights were violated when the trial c o urt judge f ailed to perf

orm an on- t h e -record Rule 403 balancing test, Jones h as m isapprehended the nature of o ur r ules of evidence a nd the discretion af f orded t o trial judges when apply ing these r ules.

. . . [ W ]e do not interpret t h i s requirem ent to be a regim ented procedure that m ust be e xplicitly perf

orm ed on pain of reversal. Though this Court c ertainly expects trial judges to have considered Rule 4 03 in m aking their evidentiary rulings, we certainly do not predicate the s oundness of these determ inations on the expre s s use of m agic words.

. . . [ W ]hil e a judge’s on-the-record analy sis i s recom m ended as it serves to f

ortif y the judge’s position f

or purposes of

review, the lack of

such analy sis is h a r m less unless we deem t he evidence to be patently prejudicial. The j udge’s f

ailure to perf

orm an on-the-record Rule 403 analy sis in no way af f ected J ones’s rights.

. . . W e, theref ore, f ind this issue to be without m erit. Id . at (¶34). ¶22. In Brink v. State , 888 So. 2 d 4 3 7 , 4 5 1 ( ¶ 4 2 ) (Miss. Ct. App. 2 004), the def endant sim ilarly a rgued that the trial court had abused i ts discretion by f a i ling to conduct an on-therecord balancing of the probative value and the prejudice of photographic evidence. The trial
court there, l ike Carter’s c ourt here, heard argum ent and ruled. W e held there, a s we do now, that the t rial court’s f

a ilure t o articulate the balancing on the record d id not require reversal. Id

. (citing Hodge v
. State , 801 So. 2d 762, 7 72 (¶32) (Miss. Ct. App. 2001)). Most recently ,

we applied the s am e reasoning in Horton v
. State , 253 So. 3d 334 (Miss. C t

. A p p. 2018).

9There the def endant challenged the adm ission of a n uncharged and unproven carjacking and robbery where the perpetrator wore the sam e c olored m ask and drove the sam e c o lored car

as Horton. Id

. at 339 ( ¶14). W e acknowledged that the trial court did not c o nduct a n on-therecord balancing test but “a circuit court’s f ailure to state Rule 403’s ‘m agic words’ does not

m ean t hat the court did not consider 403’s requirem ent or that the c o urt e rred in its decision on adm i ssibility .” Id

. at 341 (¶22). ¶23. Apply ing the above precedent to th i s c a s e , w e f ind no e r ror in the court’s f

ailure to conduct an on-the-record balancing test. The evidence was n ot “patently prejudicial” and we f ind that the circuit court did not abuse its discretion in the a dm ission o f Carter’s prior acts of dom estic violence against the victim

. CONCLUSION ¶24. F i n d i n g n o merit to his claim s of error b y the trial court, w e a f f i r m C a r t e r ’ s convictions and sentences. ¶25. AFFIRMED. BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, LAWRENCE, M c CARTY AND C. WILSON, JJ., CONCUR.

1 0