IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-00898-COA GREGORY LORENZ O PRITCHETT A/K/A GREGORY PRITCHETT A/K/A GREGORY L. PRITCHETT APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 05/13/2015 TRIAL JUDGE: HON. LISA P. DODSON COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ERIN ELIZABETH PRIDGEN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF SALE OF COCAINE AND SENTENCED AS A SUBSEQUENT DRUG OFFENDER TO SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS W I THOUT THE POSSIBILITY OF PAROLE DISPOSITION: AFFIRMED: 09/27/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Gregory Lorenzo Pritchett appeals h is conviction of the sale of less than two gram s of cocaine in violation o f M ississippi Code Annotated section 41-29-139(a)(1) (Supp. 2015). Pritchett claim s t he Harrison County C i r c u i t C o u r t erred in allowing the State to presentevidence of a prior conviction in order to show his i ntent. Because the record supports the

trial court’s f

inding that the prior c onviction was adm issible in a lim ited capacity , we af f irm the trial court’s judgm ent. FACTS ¶2. In May 2014, the B i loxi Police Departm ent c o nducted m ultiple undercover drug
pu r c h a s e s a s part of a d

rug interdiction sting. On May 30, 2014, Of f icer Tif f any Menotti traveled undercover to a h ouse at 268 Brown Street, where she contacted Pritchett, whom she recognized f

rom a previous undercover drug purchas e a t the s a m e house. Pritchett asked Of f icer Menotti if she s m o k ed “hard,” which she knew to m ean crack cocaine. Of f icer Menotti r esponded that she did not, but she w as looking to purchase som e f or her husband. Of f icer M enotti and Pritchett a greed upon a p rice of f orty d ollars f

or two rocks o f what she believed to b e crack cocaine. Of f icer Menotti paid Pritchett, took the two rocks, and lef t 268 Brown Street. ¶3. Pritchett was indicted on Novem ber 17, 2014, f

or the s ale or transf

e r of less than two
gram s of cocaine in violation of

section 41-29-139(a)(1). The indictm e nt also alleged that Pritchett was eligible f

or enhanced sentencing as a subsequent drug of f ender as set f

orth in Mississippi Code Annotated sect i o n 4 1

- 2 9-147 (Supp. 2 015). Pritchett had f ourteen prior f elony convictions, nine of

which were f

or the sale or transf

er of a controlled substance. ¶4. On April 21, 2 015, the State notif ied Pritchett that it i ntended to introduce his prior convictions during its case-in-chief pursuant t o M i s s i s sippi Rule of Evidence 404(b). Pritchett f

iled a m otion i n lim ine and a m otion to s uppress , r e q u e s t i n g that any prior

2convictions not be adm itted as evidence at trial.

¶5. Af ter conducting a hearing on the evidentiary issues, the trial judge allowed the State

to i ntroduce the prior conviction f rom 2002 f

o r the lim ited purpose of proving that Pritchett intended to transf

er a c o n t r o l l e d substance. T he trial judge also allowed testim ony f rom Of f icer M enotti regarding two of h er prior encounters with Pritchett, but only to state that she had seen Pritchett bef

ore at 268 Brown Street. ¶6. At trial, the jury f

ound Pritchett guilty of the transf er of a c ontrolled substance. Due

to h is prior convictions, Pritchett was subject t o an enhanced sentencing a s a subsequent drug of f ender. The trial c ourt sentenced Pritchett t o s ixteen y e a rs in the custody of the Mississippi
D e p a r t me n t of Corrections, without the possibility o f parole or probation. Af ter trial , Pritchett f iled a m otion f

o r a new trial or, in the alternative, a j udgm ent notwithstanding the verdict (JNOV) and a pro se m otion f or reconsideration of his sentence. T h e t r i a l court denied these m otions. Pritchett now appeals. S TANDARD OF REVIEW ¶7. “The standard of review regarding the adm ission or exclusion of evidence is abuse of discretion.” Terrell v. State , 952 So. 2d 998, 1 005 (¶31) (Miss. Ct. App. 2 006) (citing Burton

v. State , 8 7 5 So. 2d 1120, 1122 (¶6) (Miss. C t. App. 2004)). “Abuse o f discretion will only be f ound where a def

endant shows clear prejudice f rom an undue lack of c o nstraint on the prosecution or undue constraint on the def e n se.” Id

. The Mississippi S uprem e C ourt has held that even if error occurs, the judgm e nt i s not r eversed u nless “the error a dversely af f ects

a substantial right o f the party

. ” C o l e v. State , 126 So. 3d 880, 8 83 (¶13) (Miss. 2013).

3Furtherm o re, trial judges are af f o rded a high level of d iscretion as to the relevancy and adm issibility

of evidence. Id

. ANALYSIS ¶8. Pritchett argues that t he trial court erred when it allowed the State t o introduce his prior conviction f

r om 2002 f

or transf er of a controlled substance. P ritchett also contends that it was error to allow Of

f i cer Menotti to testif

y about a prior encounter with Pritchett at 268 Brown Street.
I. W hether t he t rial court erred in p ermitting e vidence of Pritchett’s prior drug conviction. ¶9. Pritchett asserts t hat the trial court erred in a llowing the jury to hear inf orm ation about

a prior conviction. Pritchett was p reviously convicted of transf er of a c ontrolled s ubstance

on March 11, 2002. He claim s that the p rior conviction was irrelevant and s e r v e d only to prejudice the jury against him

. The State responds that t he trial court properly f ound that the prior conviction could b e adm itted into evidence f or a l i m i t e d p u rpose under R ule 404(b), which states: “Evidence of other crim es, wrongs, or acts is n o t a d missible to prove the character of a p erson in or d e r to show that he acted i n conf orm ity t herewith. It may, however, be admissible for other p urposes s u ch as . . . intent , preparation, plan, knowledge, identity , or absence of

m istake or accident.” (Em phasis added). ¶10. Generally , inf

orm ation about a def

endant ’ s p a s t c o n

v i c t i o n s i s i n a d

m i s s able to prevent the inf erence that because the accused has com m itted other crim es, he is likely g uilty of the of f ense charged. W

hite v
. State , 842 So. 2d 565, 573 (¶24) (Miss. 2013). However, if there is a valid alternative purpose f or the evidence, it m ay b e introduced subject to analy sis under

4Mississippi Rule of Evidence 403. Rule 403 requires a judge to b alance the probative value

of the potential evidence against the prejudice t hat would b e incurred if t he e vidence were adm itted. W

hite, 842 So. 2 d at 573 (¶25). If a trial judge determ ines the probative v alue outweighs the prejudicial ef f ect, the evidence w ill be adm itted, provided the jury is given a lim iting instruction regarding the evidence in question. Id. “The evidence of f ered m ust (1) be relevant to prove a m aterial issue other than the def enda n t ’ s c haracter, and (2) the probative value of the evidence m ust outweigh t he prejudicial ef f ect.” Davis v. S

tate , 40 So. 3d 525, 530 (¶16) (Miss. 2 0 1 0 )

. R u l e 403 does not m andate exclusion o f potentially prejudicial evidence, but rather provides that the evidence m a y b e excluded. Jones v. State , 904 So. 2d 149, 152 (¶7) (Miss. 2005). ¶11. The trial court addressed the prior-conviction evidence in the pretrial m otion hearings and c o nducted the proper Rule 403 balancing test. The State argues it w as proper to introduce the evidence in a very lim ited capacity , s t a t i n g s i mply that Pritchett had a prior

con v i c t i o n f

o r the e xact sam e crim e, which shows t hat h e possessed the r equired intent to transf er a controlled substance. The trial court also instructed t he jury that Pritchett’s prior conviction could not be used to ascertain his guilt in this case. ¶12. Additionally , this Court has held that erroneous a dmi ssions of prior convictions constitute h arm less error where the sam e result would have been reached without the challenged convictions. McDonald v. State , 13 0 So. 3d 102, 111 (¶28) (Miss. Ct. App. 2013). The evidence of Pritchett’s guilt was extensive and i n c l u d ed police ey ewitness testim o ny and audio recordings of the transaction. Thus, even i f a n error occurred, the error

5w a s h a r

m less. The Court f

inds that the trial court did not abuse i ts discretion in adm itting the evidence of

Pritchett’s prior conviction. This issue is without m erit.
II. W hether the trial cou r t e r r ed in allowing testimony about Pritchett’s previous encounter with Officer Menotti. ¶13. Pritchett f

u rther contends that the trial court e rroneously perm itted tes t i m ony f rom Of f icer Menotti regarding her previous encounter with Pritchett. Of f icer Menotti testif

ied

at trial a bout a prior encounter with Pritchett at 268 Brown Street on May 12, 2014. Pritchett objected and c laim ed Of

f icer Menotti’s testim ony

would unduly p rejudice the jury against him and allow t hem to hear t estim ony of m ultiple e ncounters ending in t he sale of cocaine, which would result in him being tried f or two separate crim es. ¶14. This Cou r t h a s held that the adm ission o f testim ony by a police o f f icer of prior

encounters unrelated to the c harge of transf er of a controlled s u

bstance was not an abuse of discretion. B ell v. S

tate , 906 S o. 2d 30, 32-33 (¶8) (Miss. Ct. App. 2004). Of f icer Menotti did not go into detail about her prior encounter w ith P ritchett o n May 1 2. She sim ply stated that she knew Pritchett because she previously encountered him at 268 Brown Street on May 12, 2014. Additionally , the suprem e court h as h e l d t h a t “[ r]epeated sales o f narcotics in a short span of tim e have been held to constitute part of a com m on schem e or plan under the applicable statute.” W

atkins v. State , 8 74 So. 2d 486, 4 90 (¶19) (Miss. Ct. App. 2004) (citing Ott v. State , 722 So. 2d 576, 581 (¶23) (Miss. 1998)). As such, this Court f inds the trial court properly a dm itted Of

f icer Menotti’s testim ony regarding her p re v i o us e ncounter with Pritchett. This issue is without m erit. ¶15. THE JUDGMENT OF TH E CIRCUIT COURT OF HARRISON C OUNTY,

6SECOND JUDICIAL DISTRICT, OF CONVICTION OF THE SALE OF COCAINE

AND SENTENCE AS A SUBSEQUENT DRUG OFFENDER OF SIX T EEN YEARS IN THE CUSTODY OF THE MIS S ISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE O R PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY. LEE, C.J., B ARNES, ISHEE, CA R L T O N, FAIR, JAMES AND GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT W I T H O U T S E P A R

A T E W R I T T E N O P I N I O N . I R

V I N G , P . J . , D I S S E N T S W I T H O U T SEPARATE WRITTEN OPINION.

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