IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2018-KA-01158-COA AUDREY JONES A/K/A AUDREY MARQUEZ JONES APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 05/10/2018 TRIAL JUDGE: HON. JEFF W EILL SR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES PHILLIP W

. BROADHEAD ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED - 12/17/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE BARNES, C.J., McDONALD AND C. WILSON, JJ. McDONALD, J., FOR THE COURT: ¶1. In 2018, Audrey Jones was convicted o f robbing D a v i d McCullough and Charlotte
Mears in their apartm ent and then kidnapping Charlotte by m aking her drive with him to an ATM t o withdraw m oney . For the convictions on two counts of arm ed robbery in violation of Mississippi Code Annotated section 97-3-79 (Rev. 2014), the Hinds County Circuit Court sentenced Jon e s t o a t w e n ty -f ive-y ear term , with ten y ears suspended and f if teen y ears to
serve, and a conse c u t i v e t

h i r t y - fi v e-y ear term , w ith ten y ears suspended and twenty -f ive y earsto serve, all in t he c ustody of the Mississippi Departm ent of Corrections (MDOC). The court

placed J ones on f

ive y ears o f probation f

ollowing each term

. For the kidnapping conviction in violation of M ississippi C ode Annotated section 9 7-3-53 ( Rev. 2014), the court sentenced
Jones to a thirty -f

ive-y ear term in the MDOC’s custody , w i t h t e n y ears suspended and twenty

- f ive y ears t o serve, and placed Jones o n f ive y ears of probation. The circuit court set that sentence t o run concurrently with his arm ed-robbery sentence of a thirty -f ive y ear term

. J o n e s a p peals. He argues that t he court im properly a dm itted a photographic lineup and surveillance-video evidence in violation of t he r ules of d iscovery

. He a lso claim s that he was denied a f air trial when the court a llowed the State t o present evidence of another separate crim e f o r which he h a d not been tried or convicted. Af ter reviewing the record and relevant precedent, we f

ind t hat the court erred in adm itting the evidence of the second crim e because its p robative value was substantially outweighed by the undue prejudice caused to Jones. W e theref ore reverse Jones’s convictions and sentences and rem and f or a new trial.
Facts ¶2. On April 16, 2016, a gunm an f ollowed C harlotte a nd her ex-husband and room m ate David i nto their apartm ent. The gunman ordered them to get on the f l oor while he looked through the apartm ent. H e f o und som e l aptops and bank cards and dem anded their passwords and PIN n u m

bers. Ultim ately , he ordered David into the bathroom , took David’s cell phone, and lef

t the apartm ent with Charlotte. ¶3. The gunm a n f

orced Charlotte to drive h er car to a bank and withdraw $500 f rom an ATM. This was captured on the b a n k’s surveillance video. W hen the PIN num ber that

2David h ad given f or his bank cards did not w o r k , t h e g u nm an becam e angry and said he planned to return t o the apartm ent and beat David. M eanwhile, David had lef t the bathroom and gone to other apartm e nts to f ind help. At a neighbor’s apartm ent, h e was able to call his daughter and the police. Anxious about Charlotte’s s a f e ty , David d id not wait f

or the police to arrive. He drove around to f ind her him self

. ¶4. A f ter leaving the bank, C harlotte drove according to the gunm an’s direct i o n s . H e ordered her to park, took the key s, and threatened t o kill her if she lef t the c ar. He then got
out of the car and went over a f ence. W hen Charlotte realized that she was not f ar f rom her

own apartm ent com

plex, she m

ustered t h e c o u r a g e to get out and run. She waved down a

v e hicle driven by Tam e ka Reed and Gregory Scott. They took her hom e where she f o u n d the police and her daughter. Ultima t e l y , D a v i d r eturned f rom his f utile search and was reunited with Charlotte. ¶5. David and Charlotte told the police what had happened. They described the gunm an

as a black m an w h o w o re a b lack, green and y ellow k nit cap. The police inspected Charlotte’s car and t ook f

i ngerprints. They a lso f

ingerprinted the apartm ent and the iPad that the g unm an had handled. The results of the f ingerprint tests did not com e b ack f rom the lab until the m iddle of

the trial. None of

the f ingerprints m atched Jones’s. ¶6. On April 20, 2 016, the p olice asked Charlotte to review two s epara t e p h o t ographic lineups that did n ot i nclude a picture of Jones, but s he could not identif y the gunm an in either of them

. ¶7. Incident to a subsequent robbery whose s u spect w a s captured on surveillance f ootage

3at a b ank a nd n e a r b y gas s tation, police identif ied a s uspect and a vehicle that belonged to Jones. Af

ter Jones was arrested, authorities executed a search w a r r a n t o n Jones’s hom e. They seized alm ost one hundred item s, but nothing that belonged to Charlotte or David. ¶8. On April 29, 2016, t he police asked D a v id and Charlotte to review m ore photographic lineups. Charlotte ref

used, but David went and identif i ed Jones as the gunm an. ¶9. In Novem

ber 2016, Jones was indicted a nd charged with two counts of arm ed robbery and one count of kidnapping. Jones f iled a m otion f

or discovery

that, am ong other things, requested the disclosure of all phy sical evidence that would be used against him and any exculpatory m aterial. P rior to trial, he a lso f iled a m o tion in l im ine to exclude past crim inal convictions, pending charges, and other evidence of prior bad acts. ¶10. On the f

irst d ay of the trial, May 7, 2018, the State announced that it had just acquired the ATM video showing Charlotte’s f orced withdrawal. The State also told t he court that it

was still w aiting on the test results of the f ingerprints collected f

rom an iPad at t he victim s’ hom e. The State e xp l a i n e d t hat all t he evidence was not ready because a s of the Friday bef ore, Jones was contem

plating pleading guilty

. Jones’s attorney said that he had no issue with t he late disclosure of the ATM video because it had been ref e renced i n discovery , and he just wanted to v iew it bef ore m aking an announcem ent to the court. The video showed Charlotte driving in her car up to an ATM and withdrawing m oney . I t w a s i mp o s sible to identif y who was i n the car with h er. W hen the court reconvened, Jones’s attorney announced that he was ready to proceed. ¶11. The court t hen considered J ones’s m otion to exclude e vidence of other bad acts. T he

4State told the court that at the t im e of Ch a r l o t t e a n d D avid’s robbery , there was a “crim e

spree” going on: there were o t her robberies i n the sam e area, a nd a kidnapping and rape occurred where the perpetrator a lso had f orced his way into people’s apartm ents, placed one into a bathroom , threatened t he other, and took bank cards. Af ter Jones’s attorney objected to any t estim ony

regarding the other cases, the State said:
W e weren’t going to go into--these were the allegations, sim ply t hat there were several open cases going on at the sam e t im e in which the description a nd the MO [ m odus operandi] of the case -- c om m ission of t he case -- were very s i mi l ar; and that i n the last c ase, i t resulted in the identif ication of th e def endant; and that’s how the arrest was f i nally m ade. The court accepted the State’s representations and denied Jones’s m o tion but cautioned the
State t o talk to it s w i t n e s s e s t o insure that they did not “blurt out what the nature of the charges were.” The State agreed, and the trial com m enced. ¶12. Testif

y ing f o r t he State were the v ictim s, David and Charlotte, t he responding police of f icer Jennif

er Avery , and Tam eka Reed, who had picked up Charlotte and driven h er hom e. David d escribed w hat happened a nd continued that h e had i dentif ied Jones a s t h e gunm an in a photographic lineup that was entered without objection. David also identif ied Jones in

court. ¶13. W h en Charlotte t estif ied, she described as a light-sk i n n e d b l a c k ma n with “little dreads on top of his head.” She said he looked nice, a nd s he could not believe he was doing this. She also identif

ied Jones in court as the gunm an. ¶14. During Charlotte’s testim ony , the State s ought t o enter the ATM video of her and the
gunm a n’s visit to the ATM. J ones’s attorney objected, not because of

any late disclosure,

5but because Charlotte, h e argued, could not authenticate the video. The court o verruled the

objection, and t he video was e n t e r ed into evidence and play ed bef ore the jury

. W hile Charlotte is clearly s hown o n the video, it is im possib l e t o d e t e rm ine the person in the passenger seat. ¶15. Charlotte a lso t estif ied that on A pril 20, 2016, she visite d p o l i c e h e a d q u arters and spoke to Detective Maurice Young. S h e s a i d she was presented a two-page p hotographic lineup but that she did not recognize any one on them

. The State then showed Charlotte a photographic lineup and sought to introduce it into evidence. 1 Jones’s a ttorney objected that

t he photographic lineup had not been provided i n discovery

. The court over r u l e d t h e objection and adm itted the second photographic lineup into evidence. The lineup itself does

not include Jones’s p i cture, a nd Charlotte testif ied that she could not identif y the gunm an in the lineup. ¶16. Reed, whom Charlotte had f lagged d own f

or a ssistance, testif

ied that when Charlotte got i n h e r c a r, Charlotte said she had been kidnaped by a m an with d reads. B ut Reed also adm itted that she did not put that in the statem ent she gave to police on the day of the crim e. ¶17. Prior to calling its next witness, outside of t he presence of the jury , t he State inf orm ed the court that the results of the f ingerprint e v idence had com e in during lunch, a nd none of the f ingerprints collected m atched Jones’s. Jones’s attorney m oved to dism iss the charges because the results had not been provided to the def ense p rior to trial. T he State arg u e d,

am ong other things, that at the beginning of the trial Jones had agreed to pr o c e e d e v en

1 U n lik e th e p h o to g rap h ic l in eu p p r e s en ted to D av id , w h ich in clu d es th e d ate it w as co m p iled , th ere is n o d ate o n th e p h o to g rap h ic lin eu p th at C h a rlo tte w as sh o w n . 6though the f ingerprint results had not y et b e en r eceived. The court took the m atter under advisem ent, but t he issue w as n e v e r revisited, and the f ingerprint evidence was never introduced. 2 ¶18. T h e S t a t e ’ s n e x t three witnesses testif ied to e v i d e n c e o b t a i n e d t h r o u g h t h e investigation of the later robbery that bore s om e sim i larities to D avid and Charlotte’s. None of t h e witnesses were i nvolved in the i nvestigation of D avid and Charlotte’s robbery , and they had not been d isclosed as potential witnesses during J o nes’s trial. Bef ore the f irst witness, Detective J am ie W hite, testif ied, Jones’s attorney objected and r em inded the court of its r u l i n g o n Jones’s m otion in lim ine concerning evidence of other bad acts. Bef ore ruling on the objection, the court asked the State to question W hite outside the presence of the jury

. Af

ter t he State com

plied, def ense counsel additionally objected that the testim ony

was prejudicial a nd unnecessary . The c ourt o verruled the objection, and the jury was brought back to hear W hite’s testim ony in f ull. ¶19. W h ite testif

ied that he w as not involved in the investigation of the c rim e against David and Charlotte, but he investigated a later robbery that occurred at the s a m e apartm ent

com plex o n A p r i l 2 5, 2 016. W hite testif ied that both robberies involved the sam e m odus operandi (MO) and he went f urther to describe w hat that MO was—nam ely , that a gunm an approached victim s f

rom outside their apartm e n ts and then f orced them i nside; that he separated victim s, putt i n g o n e in the bathroom while threatening to kill t he other; and that

2 N o n eth e less, d u r in g d ef

ens e c ouns el’s clo sin g arg u m en t , h e n o ted t h e S tate’s f ailu re to p ro d u ce f

in g e rp rin t ev id e n ce to th e j u r y , say in g , am o n g o th er th in g s, “If th e S tate f o u n d M r. Jo n e s’s f

i n g erp rin t s in th at car o r in th e h o u se, w h y d id n ’t y o u h ear ab o u t it? ” 7he took item s like debit cards and dem anded that the victim s disclose the PIN num bers. ¶20. W h ite w ent f

urther to testif

y about his investigation o f the later r obbery

. The victim s of that robbery had described the gunm an’s clothing a nd later provided W hit e their bank

statem ents. From the s t atem e nts, W hite determ ined that som e o ne had attem pted t o withdraw

m oney f rom a BankPlus ATM on Adkins Road in Jackson. W hite then secured surveillance
f ootage f rom BankPlus and f

rom a gas station across the street. 3 ¶21. W h ite t estif

ied that t he person d e p i c t e d i n t he ATM video was w earing a jacket sim ilar to the o ne described by the victim s of t he later robbery

. From the g as station video, again using the victim s’ description of the jacket the gunm an wore, W hite identif ied the ty pe

o f c a r h e concluded the suspect drove. From f urther investigation about the car, polic e identif ied and arrested Jones. Jones’s a t t o r n e y renewed his objections to the tapes, which

were again overruled, a nd both videos were play e d f or the jury

. A s the videos were being play ed, W hite described the events depicted in them

. The ATM video clearly s h owed the
f ace of t he individual attem p ting to m ake the withdrawals. Af ter W hite blurted out that the individual was Jones, def ense counsel objected. The court sustained th e o b j e c t i o n and instructed the jury

to disregard W hite’s com m ent. ¶22. In addition to testif y ing to the content of the videos that were shown to the jury , W hite
f urther pointed out that the person in the A TM video wore a t -shi r t t h a t s a id “ Tuesday Morning” on it. Tuesday Morning is a retail store, and W hite testif i ed that he f

ollowed up

3 D u rin g th e p ro f

f er, Jo n es’s atto rn ey v ig o ro u sly o b j ected to th e in tro d u ctio n o f th ese tap es b ecau se th ey h ad n o t b een p ro v id ed to Jo n es b e f o r e t r i a l

. T h e S tate said th at its in v estig a to r h ad j u st b r o u g h t th e b an k A T M v id eo in th at m o rn in g . T h e c o u r t o v erru led Jo n es’s o b

j ectio n . 8with the store and learned that Jones had previously worked there. ¶23. W h ite went o n t o t e s t i f y that during the investigation of the latter robbery , a search

warrant w a s obtained f

or J ones’s apartm ent. Am ong t he item s f ound w as the jacket that
W h ite testif

ied w as the jacket worn by the suspect in the second robbery

. W hite identif ied the jacket itself

, which was adm itted into evidence over Jones’s objection. ¶24. W h i t e t

h e n testif ied t hat af ter Jones was arrested, authorities contacted the Mississippi
Bureau o f Investigation, which has access to driver’s license records, to g et a photo of Jones. Authorities then created a six person photographic lineup to be presented to t he victim s of the latter robbery

. N otably , W hite was never shown the l ineup that was presented to David to determ ine whether it was the one that W hite had generated. ¶25. On cross-exam ination, W hite a dm itted that the gas station video, the se c o n d A T M video, the pictures taken during t he search, and the jacket were evidence obtained f or another

case altogether—not the case being tried. W hite also adm itted that he was not s ure if any of the item s retrieved f

rom the search were stolen f

r om Charlotte and David. ¶26. The State n ext called Crim e Scene Investigator Mam ie B arrett, who co n d u c t e d the search of Jones’s apartm ent incident to the investigation of the latte r r o b b e r y . Barrett testif i ed t hat on April 28, 2016, she was tasked with executing a s earch warrant a t the hom e of Audrey Jones. The State sought to enter photographs of the apartm ent and its contents,

a n d J ones objected that the photographs were irrelevant. The court took out f o u r photographs depicting several guns f ound in the a

partm e n t, as w ell as photographs of Jones’s car, but overruled Jones’s objection and allowed the rest. The f orty pictures that rem ained

9depicted clothing, a pill bottle with som eone else’s nam e on it, i Pads, a n A p p l e laptop,

several watches, an iron, an X b o x g a m e sy stem with som eone else’s nam e and address on it, m oney , and sunglasses. Also included was a picture of a sm all handgun; h owever, it was

never identif

ied by D avid or Charlotte as the one that the gunm an used w hen he robbed them

. B arrett t estif

ied that the s erial num

bers of the electronics she f ound in Jones’s apartm ent did

not m atch those of

any known stolen item s in any case. ¶27. The State also called Of f icer Dejohn Arterberry , who testif ied that on A pril 28, 2016, he had viewed the surveillance video f rom the gas station tha t was obtained in the investigation of the later r obbery

. Arterberry s a w what the car looked like and began looking around various a

partm ent com

plexes in the area o f t h e robbery until he f o und the vehicle.
He was told the apartm ent num ber of the owner and A rterberry proceeded there. He knocked

on t h e door, and a y oung black m ale opened it. Arterberry asked h im if he owned the vehicle, and the y oung m a n t r i e d t o close and lock the door. Of f icers t hen entered and apprehended Jones. 4 ¶28. Af ter the State rested, the def ense c alled no witnesses, and Jones elected not to testif y . The jury instructions included a lim iting instruction regarding the use o f evidence of other bad acts. The jury

deliberated and f

ound Jones guilty

of all charges. ¶29. Jones f

iled a m o tion f

or judgm ent notwithstanding the verdict or, in the alternative,

a new trial in which he stated, am ong other things, that during discovery he was not provided with C harlotte’s statem ents taken by t he police and that t he court had erroneously adm itted

4 Jo n es’s co n tin u in g o b

j e ctio n to th e t estim o n y o f Wh ite, B arrett an d A rterb erry w as n o ted b y th e co u rt. 1 0W h ite’s testim ony a bout “other unindicted a nd u nrelated alleged crim es.” The court denied
J o n e s ’ s mo t ion. Jones n ow appeals and argues (1) t hat evidence of the Charlotte’s photographic lineup a nd the s urveil l a nce v ideos and other evidence f rom the later robbery should have been e xcluded because they were not produced during discovery and (2) that the adm ission of

other-bad-acts evidence violated his right to a f air trial.
Standard of Review ¶30. In d e t e r mi n i n g whether a trial court m ade an erroneous ruling on the adm ission or suppression of evidence, we em ploy a n abuse-of

-discretion standard. Cole v. State , 126 So. 3d 880, 883 (¶13) (Miss. 2013). “[ J] u d i c i a l d i s c r etion is not b oundless but is d ef ined as a sound j udgm ent which is not e xercised a r b i trarily , but with regard to w hat is right and equitable in circum s tances and l aw, and which is directed by the reasoning conscience of the trial judge to just result.” S anford v. Dudley , 196 So. 3d 1106, 1112 (¶19) (Miss. Ct. App. 2016). An abuse of d iscretion m ay be f ound where “the reviewing court has a def inite and
f irm conviction that the c ourt below com m itted a clear error of j u d g m e n t and in the conclusion it reached upon a w eighing of the relevant f actors.” Magee v. State , 231 So. 3d 243, 2 49 (¶12) (Miss. Ct. A pp. 2017). T h e r e versal of a trial court’s r uling requires a showing that the adm ission or e x c l u sion o f evidence resulted in prejudice or harm to the def ense. Pittman v. State , 904 So. 2d 1185, 1193 (¶18) (Miss. C t. App. 2004). W e review
f or Conf r ontation C lause errors de novo. Smith v. State , 986 So. 2d 290, 2 96 (¶18) (Miss. 2008).

1 1Discussion

¶31. Even though Jones also argues d iscovery v iolations occurred, we f ind that the court’s

error in the adm ission of evidence relating to the later robbery is dispositive o f this appeal.
Jones contends, and we agree, that the evidence a nd testim ony relating to the second robbery

was inadm issible u nder Mississippi Rule of Evidence 403. The court allowed testim ony and evidence that we f

ind was based in large p art o n inadm issible h earsay testim ony f rom Detective W hite that denied Jones his constitutional right to c onf ront the witnesses against him

. The probative value of evidence f

rom the latter robbery

as presented was outweighed by the unf

air prejudice to Jones. This is not a n instan c e o f harm less error but one that warrants reversal.
I. Sum m ary of the Relevant Law ¶32. To be adm itted, evidence m ust f irst b e r elevant to the issues in the case. Pittman , 904
So. 2d at 1193 ( ¶18) (Miss. Ct. App. 2004). Mississippi Rule of Evidence 401 states that evidence is relevant if i t has a tendency to m ake a f a c t m ore or less probable than it would be without the evidence and if it is of consequence in determ ining the case. “A cornerstone of evidence adm issibility is its relevance. Evidence is r elevant if it tends to m ake a f act m ore

or less probable and that f a ct is consequential in determ ining the c a se.” Phillips v
. State , No. 2017-KA-00901-COA, 2019 W L 2511572, at *4 (Miss. Ct. App. June 18, 2019). ¶33. As a g e n e r a l rule, evidence of a crim e other than the one f or which the accused is being tried is not adm issible. L adner v. State , 584 So. 2d 743, 758 (Mis s . 1991) (“The general rule is that evidence m ust be lim i ted to the crim inal activity charged i n the indictm ent

1 2a n d evidence of o ther crim es m ust be excluded.”). “ The accused in f airness c an only b e expected to me e t t he accusations of t he indictm ent, and is f a vored throughout with the
presum ption of innocence of even those accusations.” R. P. Davis, Adm issibility in Robbery Prosecution of

Evidence of

Other Robberies, 42 A.L.R.2d 854 § 3 (Supp. 2019). ¶34. Mis s i s s i p p i Rule of E vidence 404(b) prescribes when o ther bad acts evidence m ay and

m ay not be used: (1) Prohibited Uses. Evidence of a crim e, wrong, or other act is not adm issible to prove a person’s character in order to show that on a p articular occasion the person ac t e d in accordance w ith the character. (2) Perm itted U ses. This evidence m ay be adm i ssible f o r another purpose, s u ch as pro v i n g m o tive, opportunity , intent, preparation, plan, knowledge, identity , absence of m istak e , or lack of accident. Evidence of other bad acts i s o n l y adm issible if i t is relevant to an issue in the case being tried and if t h e prosecutor clearly a rticulates the alternative purpose f or the e vidence, showing that a Rule 404(b) exception is m et. Strickland v. State , 220 So. 3d 1027, 1033-34 (¶¶15-16) (Miss. Ct. App. 2016). ¶35. But e vidence that m ay be adm issible under Rules 401 and 404(b)(2) is s till subject

to the Rule 403 balancing test. Pitchford v. State , 4 5 S o. 3d 216, 246 (¶125) (Miss. 2010). Rule 403 provides: The c ourt m ay exclude relevant evidence if its p robative value i s substantially outweighed by a danger of one or m ore of the f ollowing: unf

ai r p r e j u d ice, conf using the issues, m isleading the j ury , undue delay , was t i n g t im e, or needlessly

presenting cum

ulative evidence. Thus, t h e c o u r t m

u st balance the probative value of the otherwise adm issible bad-acts

1 3evidence against, am ong other things, its unf air prejudice to the def

endant. The m ore probative the evidence i s, the less likely it is that a [ R ule] 403 f actor w ill be o f suf

f icient consequence to s ubstantially outweigh the p ro b a t i v e v a l u e . On the other hand, the less probative value the evidence has, the l ess signif icant the 403 f

actor would have to be to justif y exclusion.
Brown v. State , 749 So. 2d 204, 210 (¶10) (Miss. Ct. App. 1999). ¶36. W h en e vidence of other b ad acts is adm issible, the trial court m u st give a n instruction

to the jury explaining the lim ited purposes f or which that e vidence m ay be c onsidered. Anderson v. Sta t e , 2 0 1 8 -KA-00312-COA, 2019 W L 4267754, a t *4 (¶16) (Miss. Ct. App. Septem ber 10, 2019) (citing D erouen v. State , 994 So. 2d 748, 756 (¶20) (Miss. 2008)). But “if the inadm issible testim ony is so dam aging t h a t i t s e f f ect upon the jury could not be adeq u a t e l y tem

pered by adm o nition or instruction; the t rial court should g rant a m istrial.”
Brown , 749 So. 2d at 209 (¶7). ¶37. Finally , reversal is required only where the court’s abuse o f discretion can be shown to cause prejudice to the def endant. Franklin v. State , 136 So. 3d 1021, 1028 (¶22) (Miss. 2014). S u c h p r e

judice can be shown if a def endant is denied his constitutional right to conf ront the witnesses against h im

. Smith v. State , 986 So. 2d 290, 294 (¶10) (Miss. 2008). Each case m

ust stand on its o wn f

acts in determ ini n g whether particular error c onstitutes reversible error. Carleton v. State , 425 So. 2d 1 036, 1 041 (Miss. 1983), overruled on other
g r o u nds by Payton v. State , 785 S o. 2d 267, 270 (¶11) (Miss. 1999); Henderson v. Stat e , 403 So. 2d 139, 140 (Miss. 1981).

B. Application of the Law ¶38. In this case, Jones f iled a pretrial m o tion in l im ine to exclude any evidence of

other

1 4crim es or bad a cts. The c ourt heard argum ent bef o re the trial began. The State argued that the evidenc e f

r o m t he l atter robbery was adm issible under R u le 404(b) because: (1) the evidence w a s n e c e s s a r y to explain to the jury how Jones’s photo cam e t o be included in David’s photo lineup; and (2) the evidence showed an MO sim ilar to the arm ed robbery at issue. The court accepted the S tate’s reasons and denied the m otion with the caveat that the
State’s w itnesses could not give s p e c i f i c s of the second crim e. W e f ind t hat W hite’s narrative of the evidence in the latter robbery was based on hearsay statem ents of the victim s

w h o d i d not t estif

y at trial. The adm ission o f that hearsay e v idence denied J ones hi s constitutional right of conf rontation. Further, the court’s adm ission of testim ony and other evidence concerning the later r obbery wa s a n a b use of its discretion because the unf air prejudice to Jones substantially outweighed the probative value of the evidence adm itted.
1. Im perm issible Hearsay and N a rrative in W hite’s T e s t i m o n y V i o l a t e d J o n e s ’ s R i g h t t o Conf rontation ¶39. The testim o nial hearsay contained in W hite’s testim ony about the later robbery

is troubles o me . Mississippi Rule of Evidence 801(c) def ines “hearsay ” as “a statem ent that: (1) t he declarant does not m ake while testif y ing at the current t rial or h earing; and (2) a party of f ers in evidence to prove the truth of the m atter asserted in the statem ent.” For exam ple, in a f elony child a

buse case, German v. State , 3 0 S o. 3d 348, 352 (¶10) (Miss. Ct. App. 2009), the investigating detective was asked a bout the injuries he observed and he r esponded that “y ou will see the redness w hich was d escribed to m e by the doctors as blood beginning to pool behind her ey e lids.” W e f ound this to be hearsay

. Id. at (¶12).

1 5¶40. The adm issibility of law enf orcem ent’s testim ony that ref ers to victim s’ statem ents depends on whether it is of f ered to prove a f

act (testim onial hearsay ) or whether it is of f ered

m erely to show w hy the of f icer a cted as he did (nontestim onial hearsay ). I n Birkley v. State , 203 So. 3d 689, 696 (¶16) ( Miss. Ct. App. 2016), an of f icer investigating a s t o r e r obbery testif i ed that he showed the store’s surveillance-tape photo to another of f icer, who identif

ied the s uspect as s o m eone he had stopped f o r warrants. W e f

ound thi s t e s t i mony was adm issible b ecause “it explained an of f icer’s course of i nvestigation o r motivation f or the

next investigatory step by that of f icer.” Id. B ut when testim ony is given to prove the truth of a f act, the of

f icer’s ref erence to statem ents m ade t o him by the v ictim s becom es inadm issible t e stim onial hearsay which m ust be f iltered through the Conf

rontation Clause.
See Smith v. State , 986 So. 2 d 290, 297 ( ¶ 2 0 ) ( M i s s . 2008). The United States Suprem e Court has noted that “there are f e w subjects, perhaps, upon which this Court and other courts have been m ore nearly u n a n i m o u s than in the expressions of belief that the right of

c o n fr o n t a t i o n a

nd cross-exam ination is an essential and f undam ental requirem ent f or t h e k i n d of f a i r trial which is this country ’ s constitutional goal.” Lee v. Illinois , 476 U.S. 530, 540 (1986). ¶41. In this case, had J ones been on trial f or the later robbery , W hite’s hearsay t estim ony about what the victim s told him m ay have been admi s s i b l e t o show how it directed him in the i nvestigation o f that crim e. But even then the victim s of that c r im e would need to testif y
at trial. I n Anderson v. S

t ate , 1 S o. 3d 9 05, 914-15 (¶¶24, 2 7) (Miss. Ct. App. 2008), we held that an of f icer could testif

y to the descriptions g iven by the aggravated-assault victim s who had identif

ied Anderson as the s hooter when the of f icer was putting t ogether a photo lineup 1 6f

or the case because not only he, but also the victim s, testif ied at trial. W e c autioned that “where the out-of

- court s tatem e nt is “ testim onial ” in nature, the statem ent is generally not adm issible unless the declarant is unavailable to testif y in court, and the def

endant has had

a prior opportunity to cross-exam ine him or her. Id

. at 914-15 (¶25) (citi n g C r a w f o rd v. W ashington , 541 U.S. 3 6 , 5 9 ( 2 004)). In Anderson , we f ound the def

endant had the

o p p o rtunity to cross-exam ine the victim s a s well as the of f i cer, so t he of

f icer’s testimo n y about their assailant’s d escription was not adm itted t o p rove the t ruth of the m atter, but to explain the next step in the of f icer’s investigation. Id . at 915 (¶27). ¶42. Unlike the testim ony in Anderson , W hite’s t estim o ny r egarding his investigation of

t h e l a t t e r robbery was given the prove a key f act—that m an shown in the ATM and gas
sta t i o n v i d eos was the perpetrator of the later robbery

. W i thout t he victim s of the latter robbery testif y ing to this f

act, W hite’s assertion am o unts to testim onial hearsay

. ¶43. This extends to W hite’s testim ony concerning the jacket w orn by the gunm an and the bank s tatem ents belonging to the victim s of the later robbery

. W h ite testif ied that the victim s of the later robbery described the jacket as gray and patchy w ith a g r e e n liner. W hite also testi f i e d that he i dentif

i ed the ATM used by the second gunm an f rom the victim s’ card

statem ents. W hite’s testim ony about both the j acket and the card statem e nts was o f f ered f or the truth of t he m atters a sserted. At one point, while showing the ATM video, W hite pointed

out to the jury that the j acket t he s uspect was wearing m atched the description given by the victim s o f the l ater robbery

. 5 T heref ore, W h ite’s testim o ny that Jones’s jacket was the sam e

5 D ef en se c o u n s el o b

j ected to Wh i te’s t e s t i mo n y d u rin g th e p ro f f er an d th e co u rt ack n o w led g ed h is co n t in u in g o b j ectio n w h en Wh ite testif i ed b ef o re t h e j u ry . A l th o u g h n o t 1 7jacket worn by the perpetrator o f the later r obbery , and that the person m aking the w ithdrawal

at the ATM was that gunm an, was rank testim o nial hearsay to prove these critical f

acts. ¶44. M o r e o v e r , W h i t e ’ s n a r r a t i v e o f t he videos and h is c o m m ents on the evidence introduced was also im

perm issible because, interspersed with hearsay f rom t he victim s of the later robbery , it also included W hite’s personal i nterpretation of w hat the jury was watching.
It is perm issi b l e f

or a witness to narrate v ideo evidence when the narration sim ply describes what is occurring in the video, but it is im perm issible if

the w i tness attem

pts to place his own subjective interpretation of ev e n t s transpiring in t he video based on nothing b ey ond the witness' s own i nspection of the contents of

the videotape. Land v. State , 198 So. 3d 388, 391(¶9) (Miss. Ct. App. 2016) (internal quotation m arks

om itted. ¶45. W h ite identif

ied t he individual shown in the gas station video as the gunm an in later

ex p licit l y raised , w e f

in d th at J o n e s’s co n tin u i n g o b j e ctio n to all e v id en ce ad m itted co n cern i n g th e l ater ro b b ery en c o m p a ssed an o b

j e c tio n o n th e b asis o f h earsay . T h u s th e issu e is n o t p ro ced u r ally b arred , S m ith v. S ta te , 9 2 5 S o . 2 d 8 2 5 , 8 3 5 (¶2 6 ) (M iss. 2 0 0 6 ). E v en if i t w ere, w e m a y still co n sid er it u n d er th e “p lain erro r d o ctrin e . ” S ta rr v. S ta te , 9 9 7 S o . 2 d 2 6 2 , 2 6 6 (¶1 1 ) (M iss. C t. A p p . 2 0 0 8 )

. “ U n d e r th e p lain -erro r d o c trin e, w e can reco g n i ze o b v io u s e rro r [ th at] w as n o t p ro p erly raised b y th e d ef en d a n t o n ap p eal, an d w h ich af f ects a d ef en d a n t’s f u n d am en tal, su b stan tiv e rig h t.” F u llilo v e v
. S ta te , 1 0 1 S o . 3 d 6 6 9 , 6 7 5 (¶2 1 ) ( 2 0 1 2 ) (in tern a l q u o tatio n m ark s o m itted ). T h e p lain -erro r d o c trin e m u st b e ap p l ied o n ly w h en ce r t a i n co n d itio n s are m et, su ch a s w h en a v io latio n “serio u sly af f ects th e f airn ess, in teg rity o r p u b lic rep u t a tio n o f j u d icial p ro ceed in g s.” S ta rr , 9 9 7 S o . 2 d at 2 6 6 (¶1 2 )

. A d d itio n a lly , “ [ p ] lain -erro r r ev iew is p ro p erly u tilized f o r ‘co rrectin g o b v i o u s in stan ces o f in

j u stice o r m isap p lied law .’” B o w d ry v. S ta t e , 1 5 8 S o . 3 d 3 5 4 , 3 5 6 (¶6 ) (M iss. C t

. A p p . 2 0 1 4 ) (q u o tin g S m ith , 9 8 6 S o . 2 d a t

2 9 4 (¶1 0 )). “T o d e term in e if p l ain erro r h as o c c u r r e d , w e m

u s t d e term in e if th e trial co u rt h as d e v i ated f r o m a leg al ru le, w h eth er t h at e r r o r is p lain , clear o r o b v io u s, an d w h eth er th e erro r h as p rej u d iced t h e o u t co m e o f t h e trial.” B o w d

ry, 1 5 8 S o . 3 d a t 3 5 6 (¶7 ) (citin g H u rt v. S ta te , 3 4 S o . 3 d 1 1 9 1 , 1 1 9 7 (¶1 7 ) (M iss. C t

. A p p . 2 0 0 9 ) ). H ere w e f in d th e trial co u rt d id d e v iate f ro m th e ru les o f ev id en ce in a llo w in g Wh ite’s in ad m issib le he a r s a y t estim o n y an d th at th is erro r is c lear an d p rej u d iced th e o u t co m e o f

Jo n es’s trial. 1 8robbery

because W hite concluded he was wearing the jacket described by the victim s: Q. Det e c t i v e , I’m gonna play the video. I’m gonna be asking y ou som e questions a

bout them as I play them

. Just sort of describe f or m e what is happening.

. . . . A. Okay

. S o what y ou’re seeing there is the suspect vehicle p ulling up. . . . If y ou’ l l w a t c h w h e n he gets out, y ou can s ee the inside lining o f his jacket. It’s that l ime-green yellow color that the v ictim’s [ sic ] described. As w ell as y ou can see the red Tuesday Morning sh irt hanging o ut; whenever he g ets out o f the car to walk o ver to the ATM. (Em phasis added). ¶46. Through this testim ony , W hite was relay ing to the jury what the victim s of the later robbery a l legedly told him and his conclusion that the j ack e t i n the video w as i n f act the jacket worn by the gunm an d uring the later robbery

. B ut only the victim s could testif y that it was i n f act t he sam e jacket. The State persisted, however, to present W h ite’s conclusions as f a ct: Q. Okay . I’m

gonna start it again, and y o u can tell us as we’re seeing it.
A. You can see t he lining o f t he jacket there; the splotchy gray jacket, and y ou can kind of

see the red of the Tuesday Morning shirt. Q. W here -- do y ou now know where he’s heading to?
A. Yeah. H e’s headed across the street. Y ou can see h e g oes across the Street to the ATM across the street. And then y o u’ve got the t im estam p on the ATM where he m a kes transactions. A n d y o u can see his f a ce and every thing, clearly , f

rom the ATM cam era. ¶47. The State then m o ved on to the ATM video: Q. Okay

. I’m gonna pla y f or y ou the [ A TM video]. And if y ou can just kind of do what we just did bef

ore, answer any q

uestions about it.

1 9A. Okay

.

(W hereupon video play ed.) Q. Okay . So what are we looking at?
A. That’s M r. Jones. He’s g onna take the credit cards out there. A nd y ou can see - - Def ense counsel: Objection, Your Honor. . . .
Jones’s attorney , o bjected to W hite’s identif y ing Jones as the perpetrator of t he l ater robbery

. The court instructed the jury to disregard W hite’s com m ent, but t he dam age had been done. The State continued: Q. Okay , Detective.
A. Yes, m a’am

. Q. Now, if

y ou can look and tell us what we’re looking at?
A. That’s the suspect there. You can see the Tuesday Morning shirt right there. He’s got the j acket on as he gets out o f t he car. The glasses i n the scene look like t he sam e glasses that we f ound when we executed the search warrant on his apartm ent. . . . Thus, W hite concluded that t he glasses f ound in Jones’s apartm e nt were the glasses worn by the individual that W hite had identif ied as the perpetrator of

the later robbery

. ¶48. Finally , when s hown a photo of a j acket f ound i n Jones’s apartm ent, W hite o pined that it was in f act the jacket worn by

the gunm an in the later robbery : Q. I’m gonna show y ou a picture that’s been pre v i o u s l y introduced into evidence.

. . . Can y ou tell m e if y ou recognize t hat photograph. D o y ou recognize that photograph?
A. That’s the jacket t hat he was wearing. I got kind of e xcited w henever we saw that in the closet, because it’s the jacket that’s in the video, it’s the jacket that t hey described. A n d t h at’s just hanging there in his 2 0closet. It was just perf ect. . . . ¶49. Jones’s right to c on f r o n t t h e w i t n e s s e s a gainst him was violated when the State presented im

perm issible testim onial hearsay about key elem ents of the latter robbery through
W h ite, instead o f calling the a c t u al v ictim s as witnesses. The Conf rontation Clause in the Sixth A m endm ent of the U nited States Constitution, in the relevant part, provides as f ollows:
“In all crim i nal prosecutions, the accused shall enjoy the ri g h t

. . . t o b e conf ronted with witnesses against him

. . . .” The adm issibility

of such evidence is governed by the United
States Suprem e Court’s r ationale in Crawford v. W ashington , 541 U.S. 36, 6 8-69 (2004), in which the Court held that the out-of -court statem ents by witnesses that a r e t e s t i m onial in

nature a r e barred, under the Conf rontation C lause, unless the witnesses are a vailable at trial,

or if unavailable, t he d ef

endants had a prior opportunity to cross-exam ine the witnesses, and irrespective of whether such statem ents a re d eem ed reliable by the court. Crawford , 541 U.S.

at 68-69. “W here testim o n i a l statem ents are involved, we do not think the Fram ers m eant
to leave the Sixth Am e ndm ent’s protection to t he v agaries of the rules of evidence, m uch less

to am orphous n o tions of ‘reliability .’” Id

. at 60. In Crawford , the statem ent at issue was one given by the accused’s w if e to law enf

orcem ent; in f

i nding that i t should h ave been excluded, the Suprem e C ourt said, “The Fram ers would be a stounded to learn that ex parte testim ony could be adm itted against a c rim inal d ef endant because i t w as elicited b y ‘neutral’
governm e n t of

f icers. But even if the court’s assessm e n t of the of f icer’s m otives was accurate, it say s nothing a bout [ the accused’s wif

e ’s] pe r c eption of her situation. Only

cross-exam ination could reveal that.” Id

. at 66. ¶50. W e ll bef

o re Crawford , our suprem e court h eld that “[ t]he right of c onf rontation and 2 1cross-exam ination e x t e n d s t o and includes t he right to f ully cross-exam i ne the w itness on
every m aterial point relating to the issue to be d eterm ined that would have beari n g o n the credibility of the witness a nd the weight and worth of h is testim ony .” Myers v. State , 296 So.
2 d 6 9 5 , 700 (Miss. 1974). Here, when W hite’s testim ony and t he evidence o f th e l a t e r robbery w as adm itted, Jones w as denied his right to conf ront and cross-exam ine the real witnesses against him , the victim s in the later robbery

.

2. Rule 403 Balancing Test ¶51. Even if W hite’s testim ony did not contain inadm i ssible hears a y a n d n a r r a tive, and

even if the evidence of the later robbery qualif ied as a Rule 404(b)(2) exception, it f ails to
pass the R

ule 403 balancing test. To reiterate, Rule 403 a llows courts to exclude o therwise relevant evidence if its probative v alue is substantially outweighed b y the danger o f , am ong other things, unf

air prejudice to the def

endant. In B irkley , we held: The r eason f

or Rule 404(b) is to prevent the State f r om raising the inf

erence that the accused has com m i tted other crim es and is theref ore likely to be guilty of the of f ense charged. The adm ission of Birkley ’s prior arm e d robber i es under R ule 404(b) w as m ore prejudicial than probative a n d c onstitutes reversible error, and we rem and f or a new trial consistent with this opinion. Birkley , 203 So. 3d at 695 (¶13). There, Birkley challenge d t h e adm i ssion of his prior
convictions of arm ed robbery

. Here, Jones had not even been charged f o r, let alone c onvicted of , the latter robbery

. ¶52. Clearly , the State here was try ing t wo cases in o ne. The M ississippi Suprem e Court condem ned such a t rial strategy in Flowers v
. State , 773 So. 2d 309 (Miss. 2 0 0 0 )

. There, Flowers was accused of

killing f our people in a f

urniture store f

ire. Id

. at 312 (¶5). W hen Flowers a s ked f

or the cases to be consolidated f or t rial, the State o bjected and t rial p roceeded 2 2on t h e mu r d e r of Bertha Tardy

. I d. But throughout the trial, the State elicited testim ony about all f

our victim s. Id. at 318-22 (¶¶26-39). Photographs of other v ictim s were entered into evidence even though Tardy ’s bod y was f o und som e distance f

r om the others. Id

. at 320-21 ( ¶31). O ne witness w as a sked to describe the sounds one dy i ng victim m a de, id . at 322 ( ¶38); another witness was asked about s h ell casings f ound near other v ictim s. Id

. at 323 (¶42). Our suprem e court said:
W e f ail to see any probativ e v a l u e o f the testim ony and exhibits rem otely relevant to the indictm ent charging capital m ur d e r o f Tardy

. The e vidence, both testim ony and exhibits, is irrelevant. It appears that the only reason such photographs, slides and accom p any ing testim ony unrelated to Tardy ’s m urder were of f ered by the prosecution was t o show that Flowers, in f act, killed f

o ur people rather than only one. W e can only conclude that the a dm ission o f such evidence was highly

prejudicial to Flowers. Id

. ( ¶43). Further, the Suprem e Court recognized that of ten cases are s o inter-connected as
to be part o f the sam e transaction, but the case bef ore it w a s not one of those cases. Id

. at 324 (¶47). The Court concluded: Here, we f

ind that while any one of t he single incidents com plained about by Flowers, standing alone constitutes reversible error, y e t the cum ulative ef f ect of t he prosecutor’s p attern of repeatedly citing to the killing of the o ther three victim s throughout the guilt phase proceedings leads us t o h old that Flowers was absolutely

denied a f

u ndam ental right to a f

air trial. Id . at 325 (¶52). ¶53. Sim ilarly , in the case at hand, we f ind that Jones was d enied a f air trial. T he testim ony concerning the later robbery was not needed; the State h ad two witnesses, Charlotte and David, who identif

ied J ones a s the gunm an. The only e v i d e n c e e ntered relating to Charlotte’s and David’s robbery was their testim ony , the brief testim ony of the responding of f icer to their ro b b e r y a n d t h a t of the driver who picked up C harlotte, the photos of 2 3Charlotte and David’s a partm ent and Charlotte’s c ar, the photo l ineups, and the ATM video showing Charlotte m aking a withdrawal. E v e r y t hing else dealt with the latter robbery , including tes t im ony f

rom W hite and two other of f icers, the second A TM video, the gas station video, f

orty photos of item s taken i n the search of J ones’s apartm ent, including one depicting a gun t hat no one identif ied as the weapon used during the r obberies c harged in the indictm ent, f

ourteen photos of Jones’s car, and the jacket. M ost i m portantly , the victim s of the later r obbery d id not testif y to any of the phy sical evidence or to identif y Jones as the person who robbed them

. Thus, Jones was denied his right t o conf r ont and cross-exam ine them

. Balancing any probative value of this evidence against its prejudice to the def ense, we f ind that a ll testim ony related to t he later robbery s h ould have b een excluded under R ule 403.
3. Prejudicial Error ¶54. Wh e n f

a c e d w i t h an error, this Court m ust review the record de novo to determ ine whether reversal is warranted. W illiams v. State , 991 So. 2d 593, 599 (¶20) (Miss. 2008).
“Harm less errors are those w hich in the setting of a p articular case are so unim portant and insignif icant that they m a y , consistent w ith the Federal Constitution, b e d eem e d h a r ml e ss,
not requiring autom atic reversal of the conviction.” Id. “Error is harm less when it is trivial,
f orm al, or m erely a cadem ic, and not prejudicial to the substantial rights of the party assigning it, and w here it in no way a f f e cts the f

inal o utcom e of t he case.” Bell v. State , 2017-KA-01280-COA, 2019 WL 2754819, at *11 ((Miss. Ct. App. July 2, 2019). In addition, “ individual errors, which are not reversible in them selves, m ay com bine w ith other

e r r o r s to m ake u

p reversible error, where the cum ulative e f f ect of all e rrors d eprive s t h e def endant of a f

undam entally f

air trial.” Ross v. State , 954 So. 2d 9 68, 1018 ( ¶138) (Miss.

2 42007).

¶55. Relevant f

a ctors in determ ining whether an error is h arm l ess o r p rejudicial in a case of cum u lative errors include “ w hether t he i ssue of innocence o r guilt is close, the quantity and character of the error, a nd t he gravity of the crim e charged.” Id

. For exam ple, i n Gilmore

v. State , 119 S o. 3d 278, 283 (¶2) (Miss. 2013). Gilm ore f ought with the victi m o ver proceeds f

rom a concert and shot h im

. On cross-exam ination, the State questioned Gilm ore about h is conviction f

or sim p le a ssault that had occurred in Louisiana f i ve y ears bef

ore. Id

. at 288 (¶22). U ltim ately , Gilm ore was f o und guilty of aggravated assault and appealed. Id.

at 284 (¶7). Our suprem e court f o und that the Louisiana conviction was not adm issible. Id. at 290 (¶30). The court went f urther and f

ound the error not to be harm less, say ing: the aggravated-assault cha r g e i s a grave of f ense f or which Gilm ore was sentenced to twenty y ears’ im prisonm ent. T he S tate acknowledges that it, not Gilm ore, f

irst sought t o put Gilm ore’s character at issue by asking whether he was a violent person i n order to im peach him with his p rior conviction. As the State candidly points o u t in i ts brief , we have held previously t hat such “im peach me n t i s im

p erm issible and grounds f or reversal a nd r em and.” The introduction of G ilm ore’s prior battery conviction was not harm l ess error, and Gilm ore is entitled to a new trial on b oth the aggrav a t e d

- a s s ault and f elony -possession charges. Id . at 291 (¶37) (citation om itted). ¶56. The s uprem e c ourt r eached a sim ilar result i n Baskin v. State , 145 So. 3 d 601, 606-07 (¶31) (Miss. 2014), where i t held that th e erroneous adm i ssion of a conviction f or im p eachm ent purposes was r e v e r s i b l e error. B askin had been charged with possession of cocaine and presented a witness in his d e f e nse whose testim ony c o ntradicted that of law enf orcem ent. Id

. at 6 02 (¶5). The State was allowed to im peach t h e w i t n e s s w i t h a prior

m isdem eanor conviction f or em bezzlem ent and larceny

. Id

. at 604 (¶19). Finding this to be

2 5reversible error, the suprem e court said, “[ w]e cannot say that it is a pparent f rom the record that a f air-m inded jury

could have reached no other result than guilty when the State relied

on directly contradicted test i mo n y a n d the trial judge’s error directly af f ected that jury ’s perception o f t he contradicting witness’s credibility

. ” I d

. a t 6 06-07 (¶31). The case was

rem anded f

or a new trial. ¶57. H e r e , we f

ind t he court’s error in adm itting W hite’s testim onial h e a r s a y a n d t h e phy sical evidence of the later robbery is not h arm l ess but r eversible error because it violated
Jones’s constitut i o n a l right to c onf rontation and because its probative value was substantially outweighed by t he unf

air prejudice to Jones. This inadm issible evidence was not trivial or academ ic, but was a m ajor part of the State’s case against Jones t hat a f f ected the f

inal result.
W h ile a jury m ay have convicted Jones without the im p erm issible evidence, i t is im possible

to say t hat the jury was not unduly inf luenced by the sheer v olum e of evidence about the later robbery that was entered. There was no f ingerprint testim ony presented, and no item s f ound in Jones’s apartm ent that c ould be linked to David or C h a r l o tte. Moreover, the m anner of the presentation of the evidence of the later robbery (i.e., “proving” that Jones com m itted it through a detective’s c onclusion-f raught testim o ny rather than through testim ony of the victim s) violated Jones’s c o n s t i t u t i onal right to conf ront the w itnesses against him

. “The right t o conf

rontation

. . . f

orces the witness to subm it to cross-exam ination, the greatest legal engine ever invented f

o r the discovery of t ruth [ a nd] perm its the j ury that is to d ecide the def endant’s f ate to observe the dem eanor of the w itness m aking his statem e n t, t h u s aiding the jury in assessing his credibility .” Smith , 986 So. 2d a t 296 (¶19) (quoting Lee v. Illinois , 476 U.S. 530, 5 40 ( 1 9 8 6 ) )

. Denial of this constitutional right weighs heavily towards 2 6reversal. Finally , Jones was charged with two c o u n t s o f a r med robbery and one count of

kidnapping—grave of

f enses indeed—and he was ef f ectively s e ntenced to at l east f orty y ears in prison. If

we im pose such a sentence on an individual, it m ust com e as a result of a f air trial. A c c o r dingly , we f ind that the trial court’s error in adm itting evidence of the later robbery was not harm less but warrants reversal.
CONCLUSION ¶58. F o r t h e a b o v e r easons, we hereby reverse J ones’s convictions and sent e n c e s a n d

rem and his case f

o r a new trial. ¶59. REVERSED AND REMANDED.
B A R N E S , C . J ., GREENLEE, WESTBR O O K S , L A W R E N C E , M c C A R T Y A N D C. WILSON, JJ., CONCUR. J. WILSON, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPA R ATE WRITTEN OPINION. CARLTON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY TINDELL, J. CARLTON, P.J., DISSENTING: ¶60. I respectf

ully dissent f

rom the m ajority ’s f

i nding that the t rial court erred in adm itting evidence relating to t he later robbery

. The m ajority f ound that this adm i ss i o n o f e v i d e nce denied Jones his constitutional right t o conf rontation and the probative v alue o f the evidence adm itted was substantially outweighed by the prejudice to Jones. I disagree. ¶61. On appeal, “[ w ]e review the trial c o u r t ’ s a d mi s s ion o f evidence f or an abuse of discretion.” Johnson v. State , 252 So. 3d 50, 53 (¶7) (Miss. Ct. App. 2018). “W e will not

reverse the trial c ourt’s evidentiary ruling unless the error adversely af f ects a s ubstantial right of a party .” Id

. ¶62. Mississippi R

ule of Evidence 404(b) provides that “ [ e ]vidence of crim es, wrongs, or

2 7acts is n ot adm i ssible to prove the character of a person in order t o s how that he acted in

conf orm i ty therewith.” However, “[ e]viden c e o f prior bad acts m ay be adm issible if its probative value outweighs its prejudicial ef f ect and if it is o f

f ered “f o r other purposes such

as proof o f m otive, o pportunity , intent, p reparation, plan, k nowledge, identity , or absence of

m istake or accident.” Birkley v. State , 2 0 3 S o . 3 d 689, 692-93 (¶8) (Miss. Ct. App. 2016) (quoting M .R.E. 4 04(b)); see also Fisher v. State , 532 So. 2d 992, 999-1000 (Miss

. 1988) (holding that evidence of the def endant’s m odus operandi (MO) w as adm i ssible under Rule 404(b)); W

ilson v. State , 149 So. 3d 544, 553 (¶35) (Miss. Ct. App. 2014). ¶63. In a hearing on Jones’s p r etrial mo t i o n i n l im ine to exclude any evidence of other crim es or bad a cts, the S tate argued that the evidence f rom the later robbery was adm issible under Rule 404(b) because (1) the e vidence was necessary to e xplain h ow Jones’s photograph cam e to be included in David ’ s p h o t o line-up and (2) the evidence showed an MO sim ilar to that during the robbery that led to the charge s a g ainst Jones. Af ter hearing
argum ents f

rom the parties, the trial court ultim ately denied Jones’s m otion in lim ine. ¶64. A t t r i a l , the State called Detective W hite to testif y regarding eviden c e o b t a i n e d through his investigation of the later robbery . Prior to Detective W hite’s testim ony , Jones objected a nd rem inded the t rial court of its ruling on his mo t i o n i n lim ine. T he trial court then h eard argum ents f

rom the parties as to wheth e r , u n d er Mississippi Rule of Evidence 403, the e v idence’s probative value substantially o utweighed the danger o f u nf air prejudice

to Jones. The t rial court ultim ately determ i ned that the evidence f rom t he later robbery was “appropriate [ Rule] 404(b) evidence.” The t rial court explained t h a t t he e v idence in the

e arlier and later crim e s involved “[ t]he sam e apartm e nt c o m plex, the sam e m ethod of 2 8operation, the s a m e opportunities, plan, i dentity

. . . . Im portantly , they ’re so close in tim e: April 16, April 17, April 26; and that’s extrem e ly im portant.” ¶65. Af ter m y revi e w , I f

i n d n o abuse of discretion by the trial court in ruling that the evidence f

rom the later robbery constituted a dm issible evidence under Rule 4 04(b) to show

an MO sim ilar to that in the r obbery that led to the charges against Jones. In the alternative,
I f i nd that any error suf

f ered was h arm less, as the State asserts that David’s identif i cation of
Jones in a photo line-up is m ore than enough o verwhelm ing evidence of Jones’s guilt. See Johnson , 252 So. 3d a t 53 ( ¶7); Robbins v. State , 235 So. 3d 205, 209 (¶11) (Miss. Ct. App. 2017) (f inding any error in the adm ission of Rule 404(b) evidence t o be harm less where the evidence of the def

endant’s guilt was overwhelm ing). I respectf ully dissent, and I would af f irm Jones’s convictions. TINDELL, J., JOINS THIS OPINION.

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