IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-KA-01356-COA JOEL JONES A/K/A JOEL DUDLEY JONES A/K/A “BLUE” APPELLANT

v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/25/2014 TRIAL JUDGE: HON. JAMES T. KITCHENS JR. COURT FROM W HICH APPEALED: LOW NDES COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES JUSTIN TAYLOR COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH DISTRICT ATTORNEY: FORREST ALLGOOD NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCED TO TW ENTY YEARS, W ITH EIGHT YEARSSUSPENDED, AND FIVE YEARS OF POSTRELEASE SUPERVISION, AND TO PAY A $1,000 FINE; AND COUNT II, AGGRAVATED ASSAULT, AND SENTENCED TO TW ENTY YEARS AND TO PAY A $1,000 FINE, W ITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED – 06/21/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WILSON, JJ. IRVING, P.J., FOR THE COURT: ¶1. Joel Jones appeals his convictions, by a j ury i n the C ircuit Court of Lowndes County ,of

two counts of

aggravated assault. Jones raises the f ollowing issues: (1) the State’s jury instruction o n accom

plice liability was an im

perm issible constructive am endm ent of the indictm ent; (2) the State presented no evidence to support the accom plic e - l i a b i l ity instruction; and (3) the trial court erred in giving t he State’s cauti o n ary i nstruction concerning accom

plice testim ony . Finding no error, we af f irm

. FACTS ¶2. O n J u l y 1 4 , 2 0 1 2 , i n C o l u mb u s, M ississippi, J ones was seen look i n g f o r a n acquaintance, A lvin Johnson (Alvin), near Ash Street. The trial testim ony showed that Jones

was looking f

or Alvin because he owed Jones m oney . Later that sam e day , Jones was seen with two other individuals, Deandre Tillm an and Tay lor C onner. They arrived at the sam e portion of Ash Street, and a f istf ight broke out b etween A lvin and Jones. T i llm an and
Conner joined the f

ight to h elp Jones, which prom p t e d Z a c h Johnson (Zach) and Alson Glenn to join in to help Alvin. Af ter the f ight ended, Jones, T illm an, and Conner lef t. About twenty m inutes later, they returned in Jones’s car. Z a ch testif ied that Jones drove “up speeding and s p i n n i n g tires,” and that Jones pointed a shotgun out the window. Another witness, Vivian Hodges, the owner of the house where t his took place, t estif ied Jones stopped in f ront of the house and stated he was g oing to “shoot u p i n t h e c r o w d ” and did not care whom he hit. Hodges told him to leave or she would call the police. He drove of f

. ¶3. Z a c h t e s t i f

i e d t hat later that e vening, they again encountered Jones, Conner, a n d Tillm an, as Z ach, Alvin, Glenn, and two o ther individuals, T om arcas Thom as and

2Dem ontrell Hodges, w ere w alking to a nearby convenience store. Jones drove toward t hem

in h is blue car, in which Conner and Tillm a n were p assengers. There i s c onf licting testim ony as to who exited the car and whether Jones or Conner pulled out a shotgun, but, during the conf rontation, Zach and T hom as were shot. Zac h w a s s h ot in t he f ace, l eaving h im
perm anently blinded. Thom as, who was standing behind Z ach, suf f ered wounds to his f

ace. ¶4. Both Zach and Thom as testif ied that Jones w as the shooter. Also, Zach’s f riend Keith Brooks testif

ied that he was nearby and saw J ones ’ s c a r s top, the headlights t urn of f , and
Jones exit the driver’s seat with a shotgun. However, Glenn testif ied only Conner had a gun. Glenn stated that, although he did not see who f i red the shot, he saw Conner with a shotgun seconds bef

ore t he s hooting took place, and that at no t im e did Conner set the gun down or give it to Jones. Tillm an, who testif ied on Jones’s behalf

, stated that Conner was the shooter and that Zach also had a gun. ¶5. Jones was indicted o n October 25, 2012, on two counts of aggravated assault and one

count of intim idating a witness. 1 The State’s theory o f t he case was that Jones was the shooter and was aided by his co-def endants, Tillm an and C onner. Although J o n e s was indicted as a principal, the State introduced a jury instruction as to accom plice liability and

a cautionary instruction concerning accom plice testim ony . Jones di d n o t object to the

accom plice instruction during the trial.

1 Jo n e s w as acq u itted o f in tim id a tin g a w itn ess; th e r ef o re, th is ap p eal f

o c u ses o n h is tw o ag g rav ated

- assau l t co n v i ctio n s. 3¶6. Jones was f ound guilty o f b o t h counts of aggravated assault. On Count I, he was sentenced to twenty y ears, wi t h eight y ears suspended, and f ive y ears of post-release supervision, and ordered to pay a $1,000 f ine. On Count II, he was s entenced to twenty y ears and ordered to pay a $1,000 f ine. The sentences w e r e o r d e r e d to r un consecutively in the custody of the Mississippi Departm ent of Corrections. This appeal f ollowed.
DISCUSSION
I. Constructive Amendment of the Indictment ¶7. J ones argues that the State’s i nstruction on accom pli c e l i a b i l i t y c o n s t r u c t i v e l y

am ended t he indictm ent because it expanded the scope under which he could be f ound guilty

. He argues that the jury instruction “gutted” his theory of def ense that he was not the shooter and deprived him

of his constitutional rights of notice and due process. ¶8. Jones was indicted o n t wo counts of a g g r a v a t e d a s s a u l t under Mississippi Code Annotated section 97-3-7(2)(a) ( Supp. 2015). Count I of the indictm ent charged that Jones “did unlawf

ully , willf ully , f eloniously , p urposely [ ,] and knowingly cause bodily injury to Tom arcus Thoma s . . . with a deadly weapon, to-wit: a shotgun, by shooting the said
Tom arcus T h o m as with s a id s hotgun; without a uthority of law and n ot in necessary self [

- ]def ense[ .]” Count I I charged t hat Jones “did unlawf ully , willf ully , f eloniously , p urposely [ ,] and knowingly cause bodily injury to Zac[ h] Johnson, a hum an being, w ith a deadly weapon, to-wit: a shotgun, by shooting the said Zac[ h ] Johnson in the f ace with said s hotgun; without authority of law and not in necessary self

- def ense[ .]” J ones argues the State’s proof at trial

4was consistent with the indictm ent—that i s, the State set out to show t hat Jones was the

principal shooter, not an accom p lice. ¶9. Jury

instruction S-5 on accom p lice liability

reads: 2
The [ c]ourt instructs the jury that the guilt o f a [ d]ef endant in a c rim i nal c ase m ay b e established without proof that the [ d ]ef e ndant p ersonally did every act constituting the of

f ense alleged. The law r ecognizes that, ordinarily , any thing a p erson can do f

o r him self m ay also be accom plished by that person t hrough the direction of another person as his or her agent, by acting in concert w ith, or under t he direc t i o n o f , a n other person or p ersons in a joint ef f ort or enterprise.
If another person is acting under the direction of the [ d ] e f e n d a n t or i f the [ d]ef endant j oins another person and p erf orm s acts w ith the intent to com m it a crim e, then the law holds the [ d]ef endant responsible f

or the acts and conduct of such other persons just a s though the [ d]ef endant had com m i tted the acts or engaged in such conduct. Bef ore the [ d]ef

endant m a y be held crim inally responsible f or the a c ts of others[ , ] it is necessary that the [ d]ef endant deli b e r a t e l y associate him self in som e way w ith t he crim e and participate in i t with the intent to bring about the crim e. Of course, m ere presence a t the scene of a crim e and k nowledge that a crim e is being com m itte d a r e not suf f icient to establish t hat the [ d]ef endant either directed or aided and abetted the crim e, unless y ou f i nd bey ond a reasonable doubt that t h e [ d]ef

endant was a p articipant and not m erely a knowing spectator.
In other words, y ou m ay n ot f ind the [ d]ef

endant guilty unless y o u f

i nd bey o nd a reasonable doubt that every elem ent of the of f ense as d ef

ined in these instructions was c o m m itted by som e person o r persons, and t hat the [ d]ef endant voluntarily participated in its com m ission with the intent to v iolate

2 T h is in stru ctio n track s th e U n ited S tates F i f th C ircu it C o u rt o f A p p eals’ p attern j u ry in stru ctio n o n aid in g a n d ab e ttin g , w h i ch o u r su p rem e co u rt ad o p t ed in M ila n o v. S ta te , 7 9 0 S o . 2 d 1 7 9 , 1 8 5 (¶2 1 ) (M i ss. 2 0 0 1 ). 5the law.

¶10. Jones f

ailed t o object t o instruction S-5 at trial. O ur suprem e court has repeatedly held “that an o f

f ended party ’s f

ailure to object to jury instructions at trial procedurally bars the issue on appeal.” N

eal v
. State , 15 So. 3d 388, 3 97 (¶13) (Miss. 2009) (quoting Smith v. State , 835 So. 2d 927, 939 (¶34) (Miss. 2002)). Theref ore, this issue is procedurally barred. ¶11. Notwithstanding t he procedural bar, we f ind this issue is without m erit. As explained by the suprem e court: A constructive am endm ent of an indictm ent o ccurs when the jury is perm itted to convict the d ef

endant upon a f

actual basis t h a t e f

f ectively m odif

ies an essential elem e nt of the of f ense charged. A constructive am e n dm ent of an indict ment is reversible per se. Reversal is autom atic because the def endant m ay have been convicted on a ground not charged in the indictm ent. Graham v. State , 185 S o. 3d 992, 10 0 1 (¶25) ( Miss. 2016) (citations om itted). However, “[ n]ot all variances between t he indictm ent and instructions constitute a con s t r u c tive

am endm ent.” Id. Rather, the court on appeal m ust consider “ whether the variance is such

as to substantially alter the e lem ents o f proof necessary f or a c onviction.” Id. This Court has specif ically f ound, under f

acts sim ilar to the p resent case, that i f the e vidence supports an

accom plice-liability j ury instruction, the instruction i s p e r mi ssible and does not
const r u ctively am end the indictm ent. Johnson v. State , 956 So. 2d 358, 3 62-66 (¶¶7-18) (Miss. Ct. App. 2007). ¶12. In Johnson , J am es Johnson, sim i l a r l y t o Jones, argued “ that the trial j udge erred by [ giv]ing a jury instruction which

. . . enlarged his liability by allowing the jury to convict h im

6of capital m urder even if the j u r y did not believe that Johnson was the actual triggerm an.” Id. at 362 (¶9). Johnson asserted that the ac c o mplice-liability instruction was im proper because “neither the indictm ent, which charged [ him ] as a principal, nor the State’s theory of liability during its c ase-in-chief gave him notice that he m ay be f ound guilty based on an

accom plice theory of guilt.” Id. This Court f ound no m erit to Johnson’s c l aim , since under the statutory language of Mississippi Code A nnotated section 97

- 1

- 3 ( R e v. 2 006), “an
accessory to any f

elony , bef o re the f act, shall be deem ed a n d considered a principal, and shall be indicted a nd punished as such[ .]” Johnson , 956 So. 2 d at 363 (¶12) (quoting Miss. Code
Ann. § 97-1-3). W e held that “[ t]he clear language of section 97-1-3, as well a s the holdings of b o th this Court and the Mississippi S u p r e me Court interpreting and apply ing that provision, provide[ s] suf f icient n otice to f

e lony def e ndants that although they ma y be indicted as a principal, a j ury instruction based on accom plice liability i s proper, provided that ‘the evidence presented supports the i nstruction g i v e n.’” Johnson , 956 So. 2d at 363 (¶12) (quoting Pratt v. State , 870 So. 2d 1241, 1250 (¶28) (Miss. Ct. App. 2004)). ¶13. Based on our established caselaw, an accom plice instruction is not prohibited sim ply because accom

plice liability is not charged i n the indictm ent. W h en the given j u ry “instructions f

airly announce the law of the case and create no injustice, no reversible error will b e f ound.” W i lliams v. State , 803 So. 2d 1159, 1161 (¶7) ( Miss. 2001). Because our law

states that an accom

plice to a f

elony bef ore the f act is liable as a principal, w e f ind that the indictm ent was not constructively am ended by the accom plice-liability jury instruction and

7that Jones was not deprived of notice or due process. ¶14. W e f

ind Jones’s argu me n t t h a t t h e a c c o m plice-liability instruction constructively

am ended t he indictm ent is procedurally barred and, alternatively , without m erit. However, bef ore we decide whether the jury instruction w as properly g iven, we m ust f irst determ ine whether the evidence presented at trial supported the instruction.
II. Evidence Supporting the Accomplice-Liability Jury Instruction ¶15. “Jury instructions are within the discretion of the trial c ourt[ ,] and the settled standard of review is abuse of discretion.” Campbell v. State , 125 So. 3d 46, 55 ( ¶25) (Miss. 2013).
In r eviewing challenges to j ury instruc t i o n s , the instructions m u st be read as a whole. Id.
“W hen so read, i f the instructions f airly announce the l aw of the case and create no injustice,

no reversible error will be f ound.” W

illiams , 803 So. 2d at 1161 (¶7). The trial court m ay ref use an instruction if it is “ without f oundation in the evidence.” Johnson , 956 So. 2d at 362 (¶7). ¶16. Jones asserts the accom plice-liability i nstruction was not supported by the evidence,

as the State’s case-in-chief centered on its theory

that Jones was the shooter. A gain, Jones did not object to the jury instruction and is now procedurally b arred f rom doing s o . See Neal , 15 So. 3 d at 3 9 7 (¶13). Notwithstanding, we f i n d J o n e s’s assertion is without m erit. Conf l icting testim ony was presented as to who carried o ut the assaults on Z a ch and Thom as. Both Zach and Thom as testif i ed that Jones was the shooter. However, Glenn and Tillm an testif i ed Conner was the only one with a weapon. Further, Jones’s def ense at trial was that

8Conner was the shooter and that this was supported by the s t a t e crim e l ab’s report, which

indicated the presence of

gunshot residue on Conner’s hands, but not Jones’s. ¶17. G i v e n t h e c o n f

l i c t i n g testim ony and Jones’s own theory of def ense, t h e r e w a s evidence to support the accom plice-liability jury i nstruction. “[ A]ny person who is present
at the com m ission of a c rim inal of f ense a n d a ids, counsels, or encourages a nother in the

com m ission of that of

f e nse i s an ‘aider and abettor’ and is equally guilty with the principal of f ender.” Hooker v. State , 716 So. 2d 1104, 1110 (¶19) (Miss. 1998). T here was no dispute that J ones was present at the scene of the shooting. There was also n o dispute that Jones was involved in the altercation earlier in the day and was the driver of the car that a pproached and
f led f r om t he scene o f the shooting. Further, Jones, Conner, a n d Tillm a n were f ound together in Jones’s car shortly af

ter the shooting and arrested. I t was f or the jury to determ ine whether
Jones a cted as an accom

plice o r principal t o the shootings. See Flynt v. State , 183 So. 3d 1,
10 (¶20) (Miss. 2015) (“Factual disputes are properly resolved by a jury [ .] ” )

. As the evidence p resented supported the accom pli c e -liability jury instruction, we cannot f ind the trial court abused its discretion in giving the instruction. This issue is without m erit

. III. Cautionary Jury Instruction on Accomplice Testimony ¶18. Jones argues that the c a u t i o nary instruction r equested by t he State and given by the

t r i a l c o u r t on Tillm an’s accom p lice t estim o ny was i m

perm issible. Jones argues that the instruction was im

proper and unnecessary because Tillm an’s test i m ony was corroborated.
He f urther argues that t he instruction was unwarranted because Tillm an had n othing to gain

9f

rom testif y ing. ¶19. “[ T]he jury is to regard t he testim o ny o f c o - c o n s p i r a t o r s w i t h g reat caution and suspicion.” W

illiams v. State , 32 So. 3d 486, 490 (¶12) (Miss. 2010). The decision whether

to give a cautionary instruction i s within the t rial judge’s discretion. Id. However, “such an instruction is required when the accom plice’s testim ony is the sole basis f or the conviction, and the def

endant’s guilt is not clearly proven.” Id. ¶20. The S-6 c autionary instruction concerning accom plice t estim o ny , which was objected to by Jones, states: The [ c]ourt instructs the [ j]ury that [ Tillm an] is a n alleged accom plice in this case. The [ c]ourt has already instructed y ou that y ou, a s jurors, a r e t he sole judges o f t h e w eight and c redit to be assigned the testim o ny and s u pporting evi d e n c e o f each witness who has testif ied in this c ase. However, since [ Tillm an] is an a lleged accom plice in t his case, any testim ony of [ Tillm an] which y ou f

i nd to be u ncorroborated by other e vidence should be viewed with great caution a nd suspicion if y ou f ind such uncorroborated t estim ony t o be unreasonable, self

[ -]contradictory [ ,] or substantially im peached. ¶21. Tillm an’s testim ony t hat Conner, not Jones, was holding the shotgun at the tim e of the shooting was corroborated by G lenn’s testim ony . Glenn testif i e d c o nsistently that only
Conner had a gun. Jones a rgues that because Tillm an’s testim ony r egarding the s hooting was corroborated, t he cautionary instruction should have been ref used. H e f

urther argues that it is usually the def

e ndant, not the State, w ho seeks a cautionary instruction to protect against wrongf ul conviction, and that it is inappropriate f o r the State to request and b e g i v en such

an instruction, given that t he State c a n s c r utinize accom plice testim ony through crossexam ination.
1 0¶22. W e cannot f i nd t he trial court was p rohibited f rom giving the cautionary i nstruction because Tillm an’s te s t i mo n y regarding t he shooter w as corroborated or because the instruction was requested by the State. W hile our caselaw states that a cautionary i nstruction

m ust be given w hen the accom plice testim ony is u ncorroborated, there is no authority f or the
pro p o s i tion that such a n instruction m u st be r ef

used if the testim ony h appens to be corroborated. Rather, this Court has held that “if the accom plice’s testim ony is corroborated, whether to give the cautionary instruction is w ithin the trial judge’s d iscretion.” Stribling v. State , 81 So. 3d 1155, 1161 (¶25) (Miss. Ct. App. 2011). ¶23. Regardless, the language of th e j u r y i n s truction f ocused on a n y part o f

Tillm an’s testim o ny that the jury m a y have f ound t o b e uncorroborated, s t ating, “ any testim ony of [ Tillm an] which y ou f

ind to be uncorro b o r a t e d by other evidence should be v iewed with great caution and suspicion[ .]” Further, although Jones argues that T illm a n had nothing to gain f rom his t estim ony , the State contends that he m ay have ga i n ed reciprocal testim ony f rom J ones, which could have served as his m o tivation to testif y . Theref ore, t he S tate asserts that his testim o n y should b e given the sam e scrutiny as if he were testif y ing f or the State against Jo n e s. W e c annot f ind that the trial judge abused his discretion in giving the

c a u tionary instruction as to Tillm an’s accom p lice testim ony . This i ssue i s without m erit

. Accordingly , we af

f irm

. ¶24. T H E J U D G M E N T O F T HE LOWNDES COUNTY CIRCUIT C OURT O F CONVICTION OF C OUNT I, AGGRAVATED A SSAULT , AND SENTENCE OF TWENTY YEARS, WITH EIGHT YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $1,000 F INE; AND C O U N T I I,
1 1AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS AND TO PAY

A $1,000 FINE, WITH THE SENTE N C E S T O RUN CONSECUTIVELY IN THE CUSTODY OF THE M ISSISSIPPI DEPARTMENT OF CORREC T I O NS, IS AFFIRMED. ALL COSTS OF THIS APPEA L A R E A S SESSED TO LOWNDES COUNTY. LEE, C .J., GRIFFIS, P . J . , B A R N E S , I S H E E , C A R L T O N, FAIR, WILSON AND GREENLEE, JJ., CONCUR. JAMES, J., C ONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

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