IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-KA-01086-COA JOSHUA CHANCE WARREN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 07/07/2017 TRIAL JUDGE: HON. CHRISTOPHER A. COLLINS COURT FROM W HICH APPEALED: NESHOBA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA BLOUNT DISTRICT ATTORNEY: MARK SHELDON DUNCAN NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 08/28/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ. LEE, C.J., FOR THE COURT: ¶1. In this direct appeal, we m ust determ ine w hether Joshua W arren’s trial counsel was inef f ective f or f ailing to request a cautionary instruction about the reliability of accom plice testim o ny . Finding no error, we af f irm

. PROCEDURAL HISTORY ¶2. W a rren was convicted o f grand larceny by a jury in the Neshoba County Circuit Court. He w as s entenced as a habitual of f ender to serve f

ive y e a rs in the custody of t he Mississippi Departm ent of C orrections. He was also o rdered t o p a y a $2,000 f ine and $2,250 in restitution. W arren f

iled a posttrial m otion requesting a new trial, which t he t rial courtdenied. He now appeals, asserting that his trial counsel was inef f ective. FACTS ¶3. Irene Eakes testif

ied t hat on August 20, 2016, her granddaughter, Kassie W oods, and W a rren cam e to her house. T h e two had been driven there by Debra Fox, w ho rem ained in the car. W oods w as reporting t o a drug-rehabilitation center t he n ext day a nd n eeded Eakes’s help to prepare. Eakes stated that the two were in her house f o r a r ound one hour and that both were out of her sight at dif f erent tim es. She s a w W arren place her phone’s c harger in his pocket and conf

r onted him

. She testif

ied that she becam e w orried W arren would take her phone. At one tim e she saw b oth W oods and W arren go i nto her bedroom

. At another tim e, she was getting W arren a drink at h is request and noticed that W oods disappeared f or a short tim e. Later, several hours af ter W arren a nd W oods lef t her house, Eakes realized that seven rings were m i ssing f

rom her bedroom

. She e stim ated the total v alue of t he seven rings was approxim a tely $4,500. Eakes called the Neshoba County Sherif f ’s Departm ent (NCSD) to report her rings m issing, suspecting that W oods and W arren had taken them

. ¶4. W o ods testif

ied that she and W arren planned to steal Eakes’s rings. She stated that the plan was f

or W a rren to distract Eakes whi l e s h e s t ole the rings. Af ter leaving Eakes’s house, W oods gave W arren the r ings and told him to sell them

. They ended up t rading m ost of the rings f

or drug s a n d mo ney . W oods adm ittedly lied in her initial statem ent to law

e n f o rcem ent. She told them that she and W arren planned t o steal the rings b ut t h a t s h e distracted Eakes while W arren stole the rings. During t rial, W oods adm itted to receiving a plea deal in exchange f

or testif y ing against W arren. W oods also testif i ed that W arren later

2sent her a letter w hile she was in rehab, stating t hat he still had s o m e of the rings and would

pawn them

while he was in North Mississippi. ¶5. Debra Fox testif

ied that she drove W arren and W oods to Eakes’s house. She did not know the two were planning to rob Eakes. W hen the two got b ack i nto her c ar and asked her f or a ride to the pawnshop, she declined. She heard the two m ention the m oney , stating “I do know that the jewelry was m entioned,

. . . but I never saw it.” F ox said W arren later told her that they had sold the rings f or drugs and m oney . On cross-exam ination, F ox s tated she heard W arren ask W o ods if he was going to get into trouble. ¶6. Kevin B ay singer, an investigator w i t h t h e N C S D , t estif ied t hat h e conducted the investigation. Investigator Bay singer testif ied that Eakes suspected W arren a nd W oods had stolen her rings. He stated that the rings were never recovered. ¶7. W a rren testif

ied in his own def

ense. He stated that he did not know of W oods’s plan
to steal Eakes ’ s r i n g s . H e said W oods told him the rings were given to her by either her mother or Eakes. H e said he did take the rings t o a local pawnshop to ge t a p r i c e a n d adm ittedly sold o n e f

or $20 to $25 when the two w ent to a casino that night. He testif ied that he put the other rings in a bag in the trunk o f the car belonging to t h e p e r s on who drove W o ods to rehab the next day

. DISCUSSION ¶8. W e f

i r s t n o t e “ t h a t , generally , inef f e ctive-assistance-of

- counsel c l aim s are m ore appropriately brought during [ p os tconviction] proceedings.” Dartez v. State , 177 So. 3d 420, 422-23 (¶18) (Miss. 2015) (citing Archer v. State , 9 86 So. 2 d 951, 955 (¶15) ( Miss. 2008)).

3The suprem e court has explained that

[ a ]n appellate court is lim ited to the trial-court record in its review of th e claim (s), and t here m ay be instances in w hich i nsuf f icient evid e n c e and/or inf orm ation exists w ithin the record to address the c laim adequately

. In such a c a se, the appropriate p rocedure is to deny relief , preserving the def

endant’s right to argue the issue through a petition f o r [ postconviction] relief

(PCR). Id. at 4 23 (¶8). But, an inef f ective-assistance-of

-counsel claim

can be addressed on direct

a p p e a l w h e n “ ( 1 ) t

h e record af

f i rm atively shows inef

f ectiveness of const i t

u t i o n a l d i m e n s i o n s ,

or (2) t he parties stipulate that the record is adequate to allow t he appellate court to m ake the f inding without consideration of the f indings o f f

act o f t he t rial j udge.” J

ohnson v. State , 196 So. 3d 973, 975 (¶7) (Miss. C t. App. 2015). In t he case bef ore us, both parties did not stipulate that the record is adequate f or this Court t o m ake a f

inding on direct appeal. Thus, the proper inquiry is whether the record af f irm atively shows that W arren was denied ef f ective assistance of counsel of constitutional dim ensions. See M.R.A.P. 22(b). ¶9. W a rren argues that the St a t e ’ s c a s e r e s t e d e n t i r e l y u p o n t h e u n c o r r oborated

accom plice testim ony of W oods; t hus, a cautionary instruction was m andatory

. “Although granting a cautionary instruction r egarding the testim ony of an accom p lice is w ithin the trial judge’s discr e t i o n , s uch an instruction is r equired when the a ccom plice’s testim ony is the sole basis f or the conviction, a nd the def endant’s guilt is not clearly proven.” W illiams v. State , 32 So. 3d 486, 490 (¶12) (Miss. 2010). ¶10. W e cannot say f

rom a review of the record bef ore us t hat W arren’s trial c ounsel was def icient in a constitutional sense. There w as testim ony other than W oods’s testim ony ty ing W a rren t o the crim e . Eakes’s testim o ny places W arren a t her house and, at one point, in her

4bedroom

. Eakes thought W arren h ad distracted her so that W oods could steal her rings. Fox

stated that W a rren t old her h e had sold som e of the rings f or drugs and m oney . This issue is without m erit. ¶11. AFFIRMED. IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, W ILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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