IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-KA-00248-COA DARIUS SANTWAIN JONES A/K/A DARIUS S. JONES A/K/A DARIUS JONES, SR. A/K/A CRIP CRAZ Y A/K/A DARIUS S. JONES, SR. A/K/A DARIUS JONES APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 02/09/2017 TRIAL JUDGE: HON. JUSTIN MILLER COBB COURT FROM W HICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: BILBO MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED: 04/24/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND TINDELL, JJ. TINDELL, J., FOR THE COURT: ¶1. A Lauderdale County grand jury indicted Darius Jones on two f elony counts. Count
I charged Jones with possession of m etham phetam ine while in possession of a f irearm

. See Miss. Code Ann. §§ 41-29-139 (Supp. 2012) & 41-29- 1 5 2 ( R ev. 2013). C ount II charged possession of a f

irearm as a convicted f

elon. See Miss. Code Ann. § 97-37-5(1) (Rev. 2014).
A j ury acquit t e d J o n e s o f C ount I but convicted him o f Count I I. The Lauderdale County Circuit Court then sentenced Jones as a habitual of f e nder to ten y ears in the c ustody of theMississippi Departm ent of Corrections (MDOC) without eligibility f or p robation, parole, or early release and f

ined him $2,000. ¶2. On appeal f

rom his conviction, J o n e s a s s e r t s t h e f ollowing i ssues: (1) t here was i n s u f f icient evidence to support the verdict; (2) the verdict was against the overwhelm ing weight of the e v i d ence; (3) his vehicle was i llegally searched; a nd (4) the circuit court im p roperly instructed the jury

on his stipulation that he was a convicted f e lon. ¶3. Finding no error, we af f irm Jones’s conviction and sentence. FACTS ¶4. Around 8 :30 p.m . on October 9 , 2013, Meridian Police of f icers responded to a call about a l arge crowd gathered a t a l ocal apartm ent com p lex. By the tim e Of

f icer D ustin Allen arrived a t the scene, other o f f ice r s h a d a l r eady handcuf f ed several individuals, who were seated on a curb. Of

f icer A llen observed about eight to twelve people still standing around

a v e hicle in f

ront of the apartm ent com plex. Of f icer Allen testif

ied the area was a high-crim e

area and that the i n d i v i duals were “just loitering around the vehicle, being loud [ and] boisterous [ and] causing a d i s t u rbance.” To ensure every one’s saf ety , the police of

f icers separated the individuals and engaged them in conversation. ¶5. Of f icer Allen began to speak to Jones, who was not handcuf f ed but was s tanding by his vehicle. W hile talking to Jones, Of f i cer Allen noticed a large-caliber f irearm on top of

a b ackpack in t he driver’s seat of J ones’s vehicle. Concerned with of f icer saf ety due to the large crowd still around the vehicle, Of f icer Allen t estif

ied that he asked Jones f

or perm ission

to enter the vehicle and secure the weapon. Jones denied owning the gun or having any

2knowledge of the gun’s owner. Of f icer Allen testif

ied, however, t hat Jones gave him the car key s and granted him perm ission t o unlock the vehicle and secure t he weapon. Of f i cer Allen took the m agazine out of the gun and unloaded a round f r om the cham

b er bef ore securing the
gun inside his own v ehicle. According t o Of f icer Allen, m ore than o ne bullet was i nside the
gun. A t tria l , t h e S t ate entered the gun into evidence during Of f icer Allen’s testim ony . Of f icer Allen identif

ied the weapon as a HiPoint .45-caliber sem i-autom atic handgun. ¶6. W h ile retrieving the weapon, Of f icer Allen sm elled an o dor inside J ones’s car. Based

on his training and experience, Of f icer Allen identif

i ed the sm ell as m a rijuana. Of f i cer Allen alerted Jones to the sm ell and asked f or perm ission to f

u rther s earch the v e h i c l e . Of f icer Allen t estif

ied that Jones consented t o his request. Inside the b ackpack on t he driver’s seat, Of f icer Allen discovered a digital s c a l e a nd two plastic sandwich bags that contained a cry stal-like substance. U p on conducting a f ield test on t he contents of one of the bags, Of f icer Allen determ ined the substance was m etham phetam ine. ¶7. Af ter securing both the evidence a n d J o n e s , O f f i c e r A l l e n c o n t a c t e d A g ent Christopher Pea c o c k with the Mississippi Bureau of Narcotics. Following Jones’s waiver of his rights, Agent Peacock and Of f icer Allen interviewed Jones about the item s f ound in his c a r. Of

f icer Allen testif

ied that, although Jones had previously denied having any knowledge of the g un’s owner, during the inte r v i e w J o nes claim ed his m other owned the
g u n . A gent Peacock c orroborated Of f icer Allen’s t estim o ny that Jones t old them th e g u n belonged to his m other. B o t h l aw-enf orcem e nt of

f icers f urther testif

ied that Jones never suggested som eone else had driven his car on the day of his arrest or that the backpack in the

3driver’s seat belonged to som e one else.

¶8. Jones’s a

unt, Caroly

n Lewis, testif

ied on b ehalf of the def

ense. Lewis stated that she received a phone call f

rom Jones the evening of O ctober 9, 2013. According to Lewis, she heard s om eone r epeatedly ask J ones f or perm issi on to search his car, a nd she heard Jones repeatedly ref

use to grant perm ission f

or the search. Lewis testif ied that she n ext heard the unknown person tell Jones to g et up against the car, a nd then Jones asked w h at he had done wrong and why he was being handcuf f ed. ¶9. The j ury also heard testim ony f rom Jones’s f

o rm er girlf

r i e n d , S o p h i a Tell. Tell testif i ed that she and Jones were dating on October 9, 2013, although they no longer dated

at the tim e of

the trial. According to Tell, she borrowed Jones’s car f or m ost of t he day on October 9, 2013, to run errands with h e r f r i e n d, her f

riend’s b oy f

riend, and her f

riend’s children. Af

ter f inishing the errands, Tell returned to the apartm ent com plex t hat evening. Tell stated that she saw no backpack as s he locked t he c ar. A f ter returning the car key s to Jones, Tell testif

ied that she visited a relative f or about thirty m inutes to an h our. As she lef t the relative’s apartm e nt, Tell n o ticed the com m otion at the apartm ent com plex and saw “a lot of people” standing near Jones’s car. ¶10. Tell testif

ied that s he o wned the gun f ound in J o nes’s car. Contrary to Of f icer Allen’s testim o ny that t he gun was in p lain view, Tell stated that she stored the g u n o u t o f sight underneath the d

river’s seat w hen she got into the car the m orning of October 9, 2013. Af ter leaving her relative’s apa r t m e n t that evening, Tell testif i ed t hat she s aw Jones, who was handcuf f ed and standing near his car, s peaking t o a p o l ice of f icer. According to Tell, she

4h e a r d t h e of f icer ask f or perm ission to search the car, a nd then s h e heard J ones ref u s e
consent. Af

ter Jones’s ref

us a l , T e ll stated that the o f f icer reached into J ones’s pocket, retrieved the car key s , and unlocked the car. ¶11. Jones also testif

i ed a bout the events of Octob e r 9 , 2 0 1 3

. J o n e s s t a t e d that Tell borrowed his car key s the m orning of October 9, 2 013, and then she returned the key s that evening. According t o Jones, he rem ained inside m o st of the d ay and p lay ed a video gam e with his cousin. That evening, however, Jones t estif ied t hat he and som e f

riends were standing near his car when som eone y elled, “The of f icer is around the corner.” Jones stated that, as police of

f i cers began to a rrive, som eone ran b y his car and threw a gun on the ground. Jones testif

i ed that police of

f icers then began to handcuf f a n d search people. ¶12. According to Jones’s testim ony , an of f i ce r a p p r o a c h e d h im and claim ed to sm ell

m arijuana. Jones stated t hat h e told t h e o f f icer h e did not sm oke and that he had no

m arijuana in his possession. In response to t he of f i cer’s request to search him , Jones said that he consented. However, Jones testif ied that he ref

used the of

f icer’s request to s earch his

car because he had not been i n the car the entire d ay , and he had no idea what m ight be inside the car. ¶13. Jone s t e s t i f

i e d that the of

f icer placed h im in handcuf f s and seated him on the curb bef ore proceeding t o search his car without consent. According to Jones, the of f icer never

m entioned seeing a gun but i nstead wanted to k now what was inside a backpack on the back

seat of Jones’s car. Jones testif ied that, upon f

inding the s c ale and two b ags o f drugs inside the backpack, the of

f icer searched the car again and f ound the gun underneath the car seat.

5Although Jones testif ied that the gun belonged to Tell, he denied knowi n g the b ackpack’s

owner. Furtherm ore, Jones t estif ied that he had no idea t he gun, the backpack, or the backpack’s contents were in his car. He f urther denied e v er telling Of f icer Allen and Agent Peacock that the gun belonged to his m other. ¶14. Af ter learning Jones w as a convicted f e lon, the of

f icers placed Jones i nto a patrol car. As t he of f icers did so, Jones testif

ied that they realized his phone was on an active call to his

aunt. Jones stated t hat t he of f icers took his phone and term inated the call. A t t h e police station, J ones testif

ied that he n ever gave a statem ent to Of f i cer Allen a nd Agent P eacock and that Agent Peacock never a sked him about a gun. Instead, Jones stated that Agent Peacock tried t o g et him to “set up som e body else on a bust charge[ ,]” and that, w hen Jones ref used, Agent Peacock threatened to charge him “with every

t hing.” ¶15. Af ter the def ense rested, t he State recalled Of f icer Allen as a rebuttal witness. During rebuttal, Of

f icer Allen reiterated that, while talking to J ones o n O ctober 9 , 2013, he observed

a gun in plain sight in Jones’s c ar. Prior to seeing the gun, Of f icer Allen testif

ied t hat he had

no reason to search Jones’s c a r . O f f icer Allen f

urther testif

ied that he r eceived Jones’s
perm ission b e f

o re searching the car. Af ter returning to t he police station, Of f icer Allen stated that he and Agent P eacock interviewed Jones. O f f icer Allen testif

ied that Jones gave

a statem ent during t he interview, a nd he denied that either he or Agent Peacock threatened
Jones or m ade prom ises to induce Jones to waive his rights. ¶16. The jury acquitte d J o n e s o f C o u n t I , p o s s e s s ion of m etham phetam ine while in possession of a f

irearm , b ut f

ound him guilty of Count II, possession of a f i r e a r m as a

6convicted f elon. The circuit court sentenc e d J o n e s as a habitual of f ender to t en y ears in MDOC’s custody without eligibility f or probation, parole, or ea r l y r e l ease a nd f ined h im $2,000. Jones f

iled an unsuccessf

ul m otion f

or a judgm ent notwithstanding the verdict or, in the alternative, a new trial. Aggrieved, Jones appeals. DISCUSSION I. Sufficiency of the Evidence ¶17. J o n e s c o n t ends insuf f icient evidence s upported his c onviction f or possession o f

a f irearm as a convicted f

elon. W hen reviewing a challenge to the l egal suf f i ciency of the evidence: [ T]he r elevant question is whether, af ter viewing the evidence in the light m ost f avorable to the prosecutio n , any rational t rier of f act could have f

ound the essential elem ents of the crim e be y o n d a reasonable doubt. W here the f acts and i nf erences p oint in f

avor o f t h e def

endant on any elem ent of the of f ense with suf f icient f orce that reasonable jurors coul d n o t have f ound bey ond a reasonable doubt t hat the def endant was guilty , the proper rem edy is to r everse a n d render. However, i f reasonable f a ir-m inded j urors in the exercise o f im p artial judgm ent m ight r each dif f e r ent c o nclusions on every e lem ent of the of f ense, the evidence will be deem ed to have been suf f icient. Topps v
. S

tate , 227 So. 3d 1177, 1180 (¶5) ( M i s s . Ct. App. 2017) (internal citations and quotation m arks om itted). ¶18. As discussed, Count II of Jones’s indict m e n t c h arged him with being a c onvicted f elon in possession o f a f

irearm in violation of section 97-37-5(1). The State was required to prove that, on the date charged in t he indictm ent, J ones (1) possessed a f i rearm and (2) had been previously convicted of a f elony

. See Rogers v. S

tate , 130 So. 3d 5 44, 548 (¶18) (Miss. Ct. App. 2013). Because J ones la c k ed actual possession of the gun f ound in his car, the State

7pursued a conviction under t he theory of co n s t ructive possession. To m eet its evidentiary

burden, the State h ad to present “ suf f icient f acts to w arrant a f

inding t hat the def

endant was

aware of t h e p resence and character of the particular [ item ] and was intentionally and consciously

in possession of

it.” Glidden v. State , 74 So. 3d 353, 355 ( ¶5) ( Miss. Ct. App. 2010) (citation om itted). Proxim ity alone, without the presence of other incrim inating circum stances, is insuf

f icient t o establish constructive possession. Id. Instead, the State had to show that Jones had dom i nion over or control of the gun. Id. ¶19. Mississippi ca s e l a w g i v e s t h e j u r y t h e r e s p o nsibility o f resolving questions of conf licting evidence and witness credibility

. Topps , 227 So. 3d at 1181 (¶13). Af t er hearing the testim ony in the present case, t he jury clearly r esolved any such conf licts i n f avor of the State. The trial testim o ny ref lected no d ispute a s t o t h e f o llowing f

acts: (1) while at the apartm ent com

plex, Of f icer Allen discovered a gun inside a vehicle; (2) Jones owned the car in which the gun was f

ound; (3) Jones was standing in the vicinity of his car when Of

f icer Allen approached him ; (4) Jones’s car was locked when Of f icer Allen arrived; (5) Jones had the key s to the locked car in his possession; and (6) Jones was a convicted f elon. ¶20. Of f icer Allen testif

ied that, while talking to Jones beside Jones’s car, he observed a
gun i n p lain sight. Of

f icer Allen stated the gun was clearly visible on top of

a backpack in the driver’s seat, and Jones h ad s o le possession of the k ey s to the locked car. According to Of f icer Allen, Jones claim ed at the scene t hat h e neither owned the g un n or knew to whom the gun belonged. However, Of f icer Allen testif

ied that, during a s ubsequent interview with Agent Peacock and Of

f icer Allen, Jones alleged t he gun belonged t o his m other. Agent

8Peacock corroborated Of f i cer Allen’s testim ony that Jones t old them his m other o wned the
gun. Both law-enf

o rcem ent o f

f i c e rs f urther t estif

ied that Jones never asserted during the interview that Tell or any one else had driven his car that day

. ¶21. Reviewing t he evidence in the light m ost f avor a b l e t o t h e State, we conclude that reasonable f

a i r - minded jurors could have f ound the State proved the essential elem ents of constructive possession bey ond a reasonable d oubt. See Topp s , 2 27 So. 3d at 1180 (¶5).
B e c a u s e a rational t rier of f act c ould have concluded that Jones exercised dom inion or control over the gun f

ound in his nearby locked car, we f ind suf f icient evidence supported the verdict. W e theref

o re f ind no m erit to this assignm ent of error. II. Weight of the Evidence ¶22. Jones also asserts t hat the verdict was a g a i n s t t h e o v e r w h e l mi n g weight of the evidence. W hen reviewing a challenge to the weight of the evidence, this C ourt d isturbs the verdict only if “it is so contrary to the overwhelm ing weight of the evidence that t o allow it

t o stand would s anction an unconscionable injustice.” R oberts v. S tate , 229 So. 3d 1060, 1068 ( ¶29) ( Miss. Ct. App. 2017). Furtherm or e, we r eview the e vidence in the light m ost f avorable to the verdict. Id. ¶23. Through O f

f i c e r A l l e n ’ s t e s t i mo n y , the State presented evidence that Jones, a convicted f

elon, was standing next to his car when Of f icer Allen a

pproached and observed

a g un in plain sight on the driver’s seat. Of f icer Allen’s testim ony f

urther r ef lected that the

car was locked and that Jones had the key s to the car in his possession. Although the def ense presented a dif

f erent version of events, as previously discussed, t he jury resolves a ny issues

9of witness cr e d i b i l ity and conf licting testim ony . See Topps , 227 So. 3d at 1181 (¶13) (“Conf licting testim ony does n ot evince overwhelm ing evidence; where the verdict turns on the credib i l i t y o f conf

licting testim ony and the credibility of the witnesses, it is the jury ’s duty to r esolve the conf

lict.” (quoting Brown v
. State , 995 So. 2d 698, 702 (¶13) (Miss. 2008))). ¶24. Af ter reviewing the evidence in the light m ost f avorable to the v erdict, we cannot say that allowing the verdict to stand would sanction an unconscionable injustice. As a result, we f ind this issue lacks m erit.
III. Illegal Search ¶25. J o n e s n ext argues that Of f icer Allen illegally searched his car and seized the g u n f ound inside the car. According to Jones, he never consented to the search, and Of f i cer Allen lacked probable cause or reasonable suspicion to conduct the search. This Court reviews de

novo the trial court’s determ inations of reasonable suspicion and p robable cause. Gillett v. S t a t e , 56 So. 3d 469, 482 (¶21) (Miss. 2 010). However, o ur “de novo review is lim ited to the trial c o u rt’s decision based on historical f acts reviewed u nder the substantial evidence and clearly erroneous standards.” May v. State , 2 22 So. 3d 1074, 1078 ( ¶6) (Miss. Ct. App. 2016) (internal quotation m arks om itted). ¶26. As the May court explained: Th e F o u rth Am e ndm ent of the United States Constitution and Article 3, Section 23 of the Mississippi Constitution guarantee a person’s right to be f ree f rom unreasonable searches and seizures. As a general rule, our state and f ederal Constitutions p r o h i bit searches without a valid warrant unless an excep t i o n a p p lies. T he S tate bears t he burden to show t hat a warrantless search f alls under one of the perm issible exceptions. If no exception i s f ound,

1 0the evidence seized as a result of the sear c h s h o u l d b e suppressed as f ruit of the poisonous tree. A search is not unreasonable when it is based on probable cause. One ex c e p t i on to the warrant requirem ent is consent. Also excepted f rom the warrant requirem ent are item s within a police of f i cer’s plain v iew or plain f eel.

. . . . To p rovide an exception to the warrant requirem ent, a person’s consent to search m

ust be k n owing and voluntary

. For consent to be given k nowingly , the person searched m

ust be aware he has the legal right t o r e f u s e. Voluntariness is determ ined f rom the t otality o f t he circum stances. Factors to consider are[ :] [ W ]hether the circum stances were coercive, occurred w h i le in the custody of law enf

orcem ent or occurred in the cou r se of a station[ -]house investigation. The court m ust al s o l o ok t o the individual’s m aturity , im pre s sionability , experience[ ,] and e ducation. Further, the court should consider whether t h e person was excited, under the inf l uence of drugs or alcohol, or m e ntally i ncom

p e tent. If the consent o ccurred while the def e ndant was being generally cooperative, the consent is m ore likely to be voluntary

. . . . Id. at 1078-79 (¶¶7-9) (internal citations and quotation m a r ks om itted). “[ T]he trial judge

. . . is best able to a djudge the credibility of those testif y ing[ , and w]hen t he testim ony on the issue is conf

licting, as indeed it usually i s, the trial court is the principal eva luator of credibility .” Milliorn v. S tate , 755 So. 2d 1 217, 1221 (¶13) (Miss. Ct. App. 1999) (citation

om itted). ¶27. B a s e d o n t h e t o t a l ity of the circum s tances, we f ind substantial credible eviden c e supports the circuit court’s determ ination that Jones k nowingly and voluntarily consented to Of f icer Allen’s request to unlock the car and retrieve the gun. Of f i cer Allen testif

ied that,

1 1by the tim e he arrived at th e a p a r t m ent com plex the e vening of O ctober 9, 2013, other of f icers had arrived and handcuf f ed several individuals, who were s e a t e d on a curb. However, Of

f icer Allen testif

i ed that about eight t o twelve people who were not handcuf f ed

were still standing a round a v ehicle. According to Of f icer Allen, the area was a high-crim e
area, and these i ndividuals were being loud and b oisterous and creating a disturbance. Still concerned with every one’s saf et y , the of

f icers separated these rem aining i ndividuals and began to talk to them

. W hile speaking to Jones next to Jones’s c ar, Of f icer Al l en testif

ied he observed a large-caliber handgun in plain sight on the d river’s seat. Because h e rem ained concerned about of

f icer saf ety , Of f icer Allen asked Jones f

or perm i ssion to enter the car and secure the gun. ¶28. Of f icer Allen’s testim o ny ref lected t hat Jones was gener a l l y c o o p e r a t i v e with his request to retrieve the gun. Of f icer Allen s tated t hat Jones, who was not handcuf f ed during their e x change, voluntarily of f ered his car key s so that Of f icer A llen could enter t he locked

car. The record a lso ref

lected no eviden c e t h a t Jones was in any way im paired at the t im e of the conversation, and J ones raises no such argum ent on appeal. In f act, both Of

f i cer Allen and Agent Peacock testif

ied that Jones specif

ically told them a m edical condition prevented him f rom consum ing alcohol or drugs. Furtherm ore, as the circuit court noted in its bench ruling, Jones possessed experience and f am i liarity with t he crim inal-justice sy stem due to his prior f elony conviction. ¶29. Because substantial credible evidence supports the c ircuit c ourt’s determ i nation that Jones consented to Of

f icer Allen’s search, we f

ind this assignm ent of

error lacks m erit.

1 2IV. Jury Instruction

¶30. Jones asserts the circuit court i m p roperly instructed the jury regarding his stipulation that he had a prior f

elony conviction. A t trial, without a ny objection f

rom the def ense, the State asked the circuit court to give the stipulation to the jury a f t er opening statem ents. Thus, f ollowing opening statem ents, the circuit court instructed the jury that J ones “does stipulate that he has at least one prior f e lony conviction prior to the date of O ctober the 9th, 2013.” ¶31. D u r i n g t h e j u r y - i n s t r u c t i o n c o n fe r e n c e , t

h e State subm itted proposed instruction S-8A

. As am ended, the jury

instruction read: The [ c]ourt i nstructs the [ j ]ury that the State and the D ef endant h a v e agreed and stipulated that the [ D ]ef endant had at least one v a l i d f e lony conviction prior to the date of the charged of f ense i n this case; theref

ore, y ou shall consider t hat f

act to have been proven bey ond a reasonable doubt a s to Count II[ , possession of

a f i rearm by a convicted f

e lon]. Objecting to the proposed instruction, Jones’s attorney argued that he had stipulated to the existence of a f

act but had never agreed to relieve the State o f i ts burden t o prove an elem ent of the crim e bey o n d a reasonable d oubt. A f ter considering the parties’ argum e n ts, the circuit

court f ou n d t h e d e f

e nse had clearly stipulated t o Jones’s prior f elony conviction as part of its trial strategy

. The circuit court theref ore granted proposed jury instruction S-8A.

a. Perem ptory Instruction ¶32. On appeal, Jones renews his t rial objectio n t h a t i n s t r u c t i o n S

- 8 A am ounted to a
perem ptory jury instruction and i m properly s hif

ted the State’s burden of proof on an essential elem ent of

the crim e. As a result, Jones asks this Court to reverse his conviction. ¶33. In Rogers , the grand jury indicted R.L. Rogers f

o r arm ed r obbery and possession of

1 3a f

irearm as a convicted f

elon. Rogers , 13 0 S o . 3d a t 546 (¶6). To avoid a n y p rejudicial ef f ect f rom the jury learning that Rogers was a convicted f elon, the def

ense stipulated that
R o g e r s had a prior f

elony c onviction. I

d. The parties a greed that, rather than a nnou n c i n g the stipulation t o the j ury prior to or during the trial, the stipulation would a ppear in one of the def e nse’s proposed jury instructions. Id. at 547 ( ¶11). Following his conviction, Rogers
ap p e a l e d a n d asserted f

o r the f irst tim e that the State never proved h e possessed a prior f elony conviction. Id. at (¶14). ¶34. In addressing the im pact of the parties’ stipulation on Rogers’s prior crim inal history , this Court explained: “[ A] stipulation entered into between t he parties has the ef f ect of r em oving a question of f

act f rom the jury ’s consideration. Neither par t y need p resent evidence or s how proof o f the existence of such f acts that are contained within the stipulation.” [ State v. Flippen , 477 S.E.2d 1 58, 16 5 ( 1 9 96).] “In other words, the stipulation is substituted f or proof , and it dispenses w ith the need f or evidence.” Id. Sim ilarly , the Mississippi Suprem e Court has held that the ef f ect of a stipulation to an elem ent of a crim e is that the e l e me n t i s conclusively established without the S tate having to subm i t f urther proof to the f act-f inder. Rogers , 130 So. 3d at 550 (¶22). ¶35. As in Rogers , the State and def ense explicitly stipulated that Jones possessed a prior f e lony conviction. Furtherm o re, the parties agreed to h ave the circuit court announce th e stipulation to the j ury , which occurred a f t er o p e n i n g s t atem e n ts. By agreeing to the stipulation, Jones “conceded that the prosecution did not have to prove that h e had previously been convicted of a f

e lony

. In return, [ J ones] avoided the possible p rejudicial e f f ect of the jury ’s awareness of his specif ic prior bad acts

. . . t hat the prosecution intended to introduce.”

1 4Id. at 5 51 (¶24). A ccordingly , we f ind no m e r i t to Jones’s argum ent t hat instruction S-8A im p roperly relieved t he State of proving every e l e m ent of the crim e charged bey ond a reasonable doubt.

b. Lim iting Instruction ¶36. At trial, n either party requested a lim i ting i nstruction f or p roposed instruction S-8A, and the circuit court did not give one sua sponte. On appeal , h owever, Jones contends f or the f irst tim e t hat the circuit court erred by gi v ing instruction S-8A w ithout any

accom pany ing language to lim it “the jurors’ use of the stipulation.” ¶37. The suprem e court has previously stated:
W h ere evidence of

a prior conviction is a necessary elem ent of

the crim e f

or which the def

e ndant is on trial (i.e., p ossession of f irea r m by a c onvicted f elon), but evidence of the specif ic nature o f the crim e f

o r w hich the def

endant was previously convicted (i.e., arm e d robbery ), is not an essential elem ent of the crim e f

or w hich the d e f

endant is on trial, as it is in D UI c a ses, th e t r ial court should accept a def endant’s of

f er t o stipulate and g rant a lim iting instruction.
W illiams v. State , 991 So. 2d 593, 605-06 (¶40) (Miss. 2008). ¶38. Count II o f Jones’s i n d i c t me n t c h a r g e d h i m w i t h p o s s e ssion of a f irearm as a convicted f

elon, a crim e that requires no s pecif ic evidence of the nature of the prior f elony

. S e e i d

. ; T i mms v. State , 54 S o. 3d 310, 3 16 (¶18) (Miss. Ct. App. 2011). In its appell a t e brief , the S tate a dm its that trial courts should g e n erally give a lim iting instruction in cases such as this one. See W

illiams , 9 91 So. 2 d at 605-06 (¶40). H owever, the State f urther argues that the circuit court’s f ailure to do so here am ounted to harm less error. ¶39. Although the d ef ense o bjected t o i n s t r u c t i o n S

- 8 A d u r i n g t h e jury -instruction

1 5c onf

erence, it never requested t he lim iting instruction Jones n ow argues h e should ha v e received. See Harper v. S tate , 478 So. 2d 1017, 1025 (Miss. 1985) (“[ T]he lower court m ay
not be put in error f

o r f a ilure t o instruct t he jury on any point o f l a w u n l e s s s p ecif ically

r e q u e s ted in w riting to do s o.” (citing Newell v. State , 308 So. 2d 7 1, 78 (Miss. 1975))).
Even assum ing the c ircuit c ourt erred by not giving a lim iting instruction sua sponte, we f ind
any such error to be harm less. ¶40. Mississippi caselaw recognizes that, in m any instances, a def

endant m ay not want a lim iting instruction because the instruction “m ay actually ‘f ocus the j ury ’s attention’ on . . . potentially

prejudicial testim ony

[ or evidence].” Curry v. State , 202 So. 3d 2 94, 299 (¶16) (Miss. Ct. App. 2016) (quoting Tate v. State , 9 12 So. 2d 919, 928 (¶28) (Miss. 2005)). “Jury instructions that ref

erence p rior ar r e sts and convictions m ay b e counterproductive to the def endant. W hile serving to lim it the j u ry ’s consideration of the prior wrongs, such instructions a l s o r e mind and e m p hasize t o the jury that the def e ndant com m itted prior bad acts.” T ate , 912 So. 2d at 928 (¶28). ¶41. Based u

pon a review of relevant c aselaw, we cannot say that the absence o f a lim i ting instruction in this case rendered Jones’s trial f undam entally unf

a ir. 1 Cf. Robinson v. State , 9 4 0 S o . 2 d 2 3 5 , 239 (¶11) (Miss. 2006) (f inding the denial of a lim iting i nstruction to b e harm less error unless the decision deprives t he def endant of a f

a ir trial); Curry , 202 So. 3d

a t 2 9 9 (¶16) (f

inding n o reversible error f rom the t rial court’s f

ailure to give a lim i t i n g

1 A s th e r e c o r d ref

lects, th e lack o f a lim itin g in stru c tio n am o u n ts to n o th in g m o re th an h arm less erro r sin ce th e j u ry co n sid ered Jo n es’s stip u l atio n r eg a r d in g h is p rio r f elo n y co n v ictio n b u t still acq u itted h im o f C o u n t I. 1 6instruction sua sponte). As a result, we f ind this assignm ent of e r

ror lacks m erit.

c. Ineffective Assistance of Counsel ¶42. Alternatively , Jones asserts his trial attorney rendered inef f ective assistance by

f ailing

to r equest a lim iting i nstruction. To prove i n ef f ective assistance, J ones m ust show (1) his attorney ’s perf

orm ance w as d e f

icient, and (2) the def

iciency prejudiced him

. See S trickland
v. W ashington , 466 U.S. 668, 687 (1984). Jones f ails to satisf

y this test. ¶43. “W e presum e that counsel’s decision not to request a lim iting instruction was within the am bit of trial strategy

. This p resum ption i s appropriate given that

. . . such a n i nstruction has the p otential to do the def e ndant m ore harm than good.” Curry , 202 So. 3 d at 301 (¶24) (internal citation om itted). Furtherm ore, a s p r e v i o u sly discussed, we f i nd the lack of a lim iting i nstruction in this c ase f ailed to deprive Jones o f a f air trial. W e t heref

o re f ind this
argum ent lacks m erit. CONCLUSION ¶44. Finding no error, we af f irm Jones’s conviction and sentence. ¶45. AFFIRMED. LEE, C .J., IRVING A ND GRIFFIS, P.JJ., B ARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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