author: LEE, P.J.,

text:
    John Christopher BLAKENEY a/k/a John Christopher Paul Blakeney a/k/a Chris Blakeney, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-02271-COA.
    Court of Appeals of Mississippi.
    July 21, 2009.
    Rehearing Denied Dec. 1, 2009.
    Certiorari Denied March 4, 2010.

      George T. Holmes, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. John Christopher Paul Blakeney was convicted of the murder of Willie Kitchens by a jury in the Circuit Court of Jones County. Blakeney was sentenced to life in the custody of the Mississippi Department of Corrections, and if released before the full sentence is served, he must complete the Eighteenth District Circuit Court’s Community Service Program. Blakeney filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial, which was denied by the trial court. Blakeney was indicted for the murder of Willie’s wife, Anita, but the jury was deadlocked and a mistrial was declared on this charge.

¶ 2. Blakeney now appeals his conviction and sentence, asserting the following issues: (1) the trial court erred in denying his motion to suppress his confession; (2) the trial court erred in failing to grant his motion for a directed verdict; and (3) the verdict was contrary to the overwhelming weight of the evidence. Finding no merit to these issues, we affirm.

FACTS

¶ 3. On July 10, 2006, at 4:55 a.m., Trooper Holt Ross of the Mississippi Highway Safety Patrol responded to what was reported as a vehicle accident on Highway 84 East, west of Waynesboro, Mississippi. Trooper Ross arrived at the scene at approximately 5:30 a.m. and discovered a car that had been driven down a slight embankment, through a rusty fence, and had come to rest against a tree. The bodies of Anita and Willie were found in the car. A fire had been started in the backseat of the vehicle, and the windows were covered in smoke. Trooper Ross noticed fireworks in the backseat of the car. The fireworks had been ignited, but Trooper Ross could not find a lighter, matches, or anything else that could have ignited the fireworks. The two occupants of the vehicle were in the driver’s seat and front passenger seat. Both occupants were wearing seatbelts, and the airbags were not deployed. The car’s engine was not running, the gearshift was in neutral, and the car did not show signs of serious impact. A black glove was found in the car, and two containers of gasoline were found in the trunk. Trooper Ross called in the tag number of the vehicle, which showed that Willie was the owner of the vehicle.

¶ 4. Investigator Matt Ishee of the Jones County Sheriffs Department arrived at the Kitchens’s home at 6:30 a.m. the same morning. Anita and Willie lived in Jones County with their granddaughter, Wanda Blakeney, whom they had adopted as their daughter, and Wanda’s husband, John Christopher Paul Blakeney. Investigator Ishee discovered that the Kitchens’s bed had been stripped and a garbage bag containing items of clothing was on the floor in their bedroom. He also found what he described as confetti, which was actually paper fired from a Taser cartridge. The paper bore the serial number of the cartridge.

¶ 5. Wanda told law enforcement that her husband, Blakeney, had killed Willie and Anita. Law enforcement located and arrested Blakeney in Louisiana on July 10, 2006. He was detained for questioning in Louisiana until Officer Darrell Perkins, an investigator with the Mississippi Bureau of Investigation, and Deputy James Grimes, an investigator with the Jones County Sheriffs Department, picked him up on July 12 and brought him back to Jones County. Blakeney was interviewed on July 12 and July 13 and confessed that he and his wife, Wanda, killed Willie and Anita. The interviews were recorded on audio and video tape. The first interview lasted approximately three hours, and the second interview lasted approximately two hours.

¶ 6. Blakeney confessed that Wanda had incurred substantial debt from internet gambling and that she owed Willie and Anita a great deal of money. Blakeney stated that Wanda had gotten into a dispute with Willie and Anita over the money, and this led to Wanda’s idea to murder them. He told the investigators that killing Willie and Anita was Wanda’s idea, but he had helped her carry out the murders. The couple planned the murders on July 4-6, 2006. He admitted that Wanda told him to buy a Taser because Willie had a weak heai’t, and she thought the shock would kill him. Blakeney shot the Taser at the victims in their bed while they were sleeping. When the Taser did not kill either victim, Blakeney admitted that he suffocated them with a trash bag that was in the room until they were dead. He admitted to dressing the bodies to make it appear they were going to visit a relative, helping to carry the bodies to the car, driving the car while sitting on Willie’s lap, and running the car off the road. He communicated with Wanda, who was driving behind him with their two small children in the car, by walkie talkie. After running the car off the road, he tried to light it on fire with a lighter. He confessed that after the murders, Wanda drove him home, and he drove back to Denham Springs, Louisiana, where he had reserved a hotel room. At some point while Wanda was driving, Blakeney threw his clothes and the Taser out the window.

¶ 7. A receipt for a Taser was found in Blakeney’s belongings. The receipt showed that the Taser was purchased with cash in Denham Springs on July 7, 2006. Investigators went to the store and confirmed with the clerk that Blakeney had purchased the Taser. Also, video surveillance showed that it was Blakeney who had purchased the Taser. The investigators purchased a Taser that was identical to the one purchased by Blakeney. At trial, the Taser was fired to demonstrate that it ejected confetti which had the serial number of the cartridge on it.

¶ 8. Another receipt from a Walmart in Baton Rouge, Louisiana showed that later on July 7, Blakeney purchased men’s underwear, women’s beach shoes, men’s socks, men’s black jeans, and a pair of gloves. The underwear was purchased with a debit card, and the remaining items were purchased with cash a minute later. Investigators obtained a surveillance tape that identified Blakeney as the purchaser of the items. The tape was introduced into evidence at trial. Blakeney told officers that he bought the Taser to give to Wanda for protection and that he purchased the black clothing for work.

¶ 9. A third receipt was found which showed that Blakeney had paid for a room at a Holiday Inn Express in Denham Springs from July 7-10, 2006. Blakeney’s brother, Anthony, testified that he and Blakeney were in Ponchatoula, Louisiana all day on July 9, 2006, until approximately 10:30 p.m. Denham Springs is approximately 285 miles from Jones County.

I. DID THE TRIAL COURT ERR IN DENYING BLAKENEY’S MOTION TO SUPPRESS HIS CONFESSION?

¶ 10. Blakeney argues that the trial court erred in admitting his confession into evidence because it was involuntary. Blakeney recanted his confession before trial and pleaded not guilty. He argues that before being questioned about the murders, he was held for two days on a suicide watch, and during those two days, he was cold and did not have his prescribed anxiety medication, Paxil and Trazodone. Blakeney also argues that he invoked his right to counsel, but the invocation for assistance of counsel was ignored by law enforcement. Blakeney also argues that his confession was based on offers of leniency by law enforcement.

¶ 11. “[T]his Court will reverse a trial court’s finding that a confession is admissible only when an incorrect legal standard was applied, manifest error was committed, or the decision is contrary to the overwhelming weight of the evidence.” Tyler v. State, 911 So.2d 550, 554-55(¶ 17) (Miss.Ct.App.2005) (citing Stokes v. State, 797 So.2d 381, 383(¶ 3) (Miss.Ct.App.2001)). “Great deference is afforded such findings because of the judge’s unique opportunity to observe the witnesses and assess their credibility.” Carley v. State, 739 So.2d 1046, 1050(¶ 17) (Miss.Ct.App.1999). “Once the trial judge has determined at a preliminary hearing, that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal.” Id. at (¶ 18) (quoting Sills v. State, 634 So.2d 124, 126 (Miss.1994)).

¶ 12. The law regarding the voluntariness of confessions was stated in Carley, 739 So.2d at 1050(¶ 16), as follows:

The privilege against self-incrimination secured by the Fifth and Fourteenth Amendments to the U.S. Constitution and by Article 3, § 26 of the Mississippi Constitution renders an involuntary confession inadmissible. Neal v. State, 451 So.2d 743, 750 (Miss.1984); Morgan v. State, 681 So.2d 82, 87 (Miss.1996). When the voluntariness of a confession is put in issue, the burden falls on the State to prove the voluntariness of the confession beyond a reasonable doubt. Morgan, 681 So.2d at 86; Haymer v. State, 613 So.2d 837, 839 (Miss.1993). The State meets that burden by offering the testimony of those individuals having knowledge of the facts that the confession was given without threats, coercion, or offer of reward. Cox v. State, 586 So.2d 761, 763 (Miss.1991).

1. Was Blakeney denied the right to an attorney?

¶ 13. Blakeney was interrogated twice and informed each time by law enforcement of the right to counsel and the right to remain silent pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He was also read his Miranda rights when he was picked up in Louisiana. Blakeney agreed to talk to law enforcement and signed a waiver of rights. The following exchange took place between Blakeney and Officer Perkins at the beginning of Blakeney’s first interview on July 12:

[Perkins]: This is a waiver. I am going to read it to you and you can read it as well. I have read the statement of my rights and understand what my rights are and am willing to answer questions and make a statement. I do not want a lawyer at this time. I understand and know what I am doing. No promises, threats have been make [sic] to me and no pressure or cohersion of any kind has been made against me. Is that true?
[Blakeney]: So far.
[Perkins]: Ok. Do you wish to talk to me about what’s going on?
[Blakeney]: I need to talk to somebody[.] I don’t know if I need a lawyer or not.
[Perkins]: I can’t advise you if you need a lawyer or not.
[Blakeney]: I don’t.
[Perkins]: We can talk about it or we can call and have a lawyer ... but I cannot tell you which way to go.
[Blakeney]: Do I have a right to stop talking?
[Perkins]: You sure do. If you get to a certain point and you say you don’t want to talk to me any more [sic] and you want a lawyer then the interview at that time is terminated. Do you wish to talk to me?
[Blakeney]: We’ll talk.

¶ 14. At the suppression hearing, Blakeney testified that he requested an attorney before the interview started, but he was told by Officer Perkins that he was not entitled to an attorney until after he was indicted. Blakeney also argues that the investigators repeatedly discouraged him from requesting an attorney by making statements such as, “I’ll be here with ya, ... I ain’t gonna let nothing happen to ya,” and “if you need somebody to lean on I’ll be there.” The State called Officer Perkins, Deputy Ishee, and Deputy Grimes to testify at the suppression hearing. All three testified that Blakeney showed no sign of intoxication or inability to understand his rights when he was in them custody. Officer Perkins testified that he made no threats or promises to Blakeney. He also testified that he did not tell Blakeney that he could not have an attorney before he was indicted. Officer Perkins admitted to telling Blakeney that he would not let anything happen to him, but he testified that he meant he would not let Blakeney be physically harmed.

¶ 15. After reviewing the testimony from the suppression hearing, we find that Blakeney’s statements — “I need to talk to somebody.”; “I don’t know if I need a lawyer or not.”; and “Do I have the right to stop talking?” — were at best ambiguous requests for an attorney. We also find that the investigators did not overstep constitutional parameters in following up on these statements with further questions regarding this statement. In Holland v. State, 587 So.2d 848, 856 (Miss.1991), the supreme court determined that the defendant’s question — “Don’t you think I need a lawyer?” — was an ambiguous invocation of his right to counsel and the police detective’s follow-up questions were within constitutional parameters. The officers reminded the defendant of his right to counsel and that if he did not want to talk to them he did not have to continue with the interview. Id. at 858. The defendant responded, “Ok,” that “he would talk to them.” Id. The officers again advised the defendant of his rights, which he again waived before confessing. Id. at 854.

¶ 16. When Blakeney made the statement, “I don’t know if I need an attorney or not,” Officer Perkins reminded him that he could ask for an attorney and the interview would be terminated. Blakeney responded, “We’ll talk.” The investigators repeatedly told Blakeney throughout both interviews that he could stop talking and call an attorney. The investigators also told Blakeney several times that they could not advise him whether or not he needed an attorney. As for Blakeney’s assertion that Officer Perkins told him he could not have an attorney until after he was indicted, we find that even if taken as true, this was clarified at the beginning of the first interview when Blakeney signed the waiver of rights. Therefore, we find that the trial court did not err in finding that Blakeney did not invoke his right to counsel. This issue is without merit.

2. Was Blakeney’s confession coerced?

¶ 17. Blakeney testified that he was told by sheriffs deputies that they had him “red handed” and that he would get the death penalty. Blakeney argues that the investigators used deceptive practices and implied that he was totally dependent on them for any assistance. Blakeney argues that they used his love for his wife against him by telling him that his wife had confessed and blamed everything on him.

¶ 18. Regarding a possible death-penalty sentence, Officer Perkins told Blakeney:

There’s two counts of charges of murder on Wanda and they’re gonna upgrade them to Capital Murder. And there’s two charges of counts of murder on Chris Blakeney and they are going to upgrade them to Capital Murder. Capital Murder is bad. You can sit on death row for years. Or you can have two consecutive life sentences. Or if the DA feels it [he] can reduce it or jack it up. What ever [sic][he] want[s] to do.

The investigators also told Blakeney that it was in his best interest to talk and that if they could show the judge that Blakeney was willing to talk to them it would help him out. The investigators also offered him smokeless tobacco when he asked for it, which Blakeney argues was a ploy to make him confess.

¶ 19. Officer Perkins, Deputy Grimes, and Deputy Ishee testified at the suppression hearing that they did not threaten Blakeney or make any promise of leniency. When the investigators asked Blakeney during his second interview whether he was coerced or manipulated into confessing, Blakeney responded, “no, other than scaling the hell out of me, no.” Blakeney then compared his position to how his deck hands must feel when he, as boat captain, is in front of them. At the suppression hearing, Blakeney testified that he stated he was coerced and manipulated into confessing because he was intimidated by the officers and that he would not have confessed otherwise. Blakeney also argues that he was refused medical care. Blake-ney asked, “Do they let doctors come visit people?” The investigator’s response was that Blakeney would have to talk to an attorney about that, but that it might create a “difficult situation” if Blakeney wanted to continue talking to law enforcement.

¶ 20. Giving deference to the trial court’s ruling at the suppression hearing, we find that the trial court did not err in denying Blakeney’s motion to suppress his confession. We find that the proof established beyond a reasonable doubt that: Blakeney was given his Miranda rights; he understood his rights; he freely signed a waiver of his rights; and he freely, voluntarily, knowingly, and intelligently waived his constitutional rights without any threats, promises, or coercion by the investigators. Therefore, we find that this issue is without merit.

II. DID THE TRIAL COURT ERR IN DENYING BLAKENEY’S MOTION FOR A DIRECTED VERDICT OR, IN THE ALTERNATIVE, A NEW TRIAL?

¶ 21. Blakeney argues that his conviction was based solely on his confession, which was uncorroborated. Thus, he argues that his conviction should be reversed and rendered or, in the alternative, a new trial should be granted.

¶ 22. In reviewing the denial of a motion for a directed verdict, “all of the evidence on behalf of the [S]tate must be taken as true, together with any reasonable inferences, and, if there is sufficient evidence to support a verdict of guilty, the motion for a directed verdict must be overruled.” Gibson v. State, 503 So.2d 230, 232 (Miss.1987). Our standard of review concerning the granting of a new trial is well settled. “[W]e will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). The appellate court sits as a hypothetical “thirteenth juror.” Id. If, in this position, the Court disagrees with the verdict of the jury, “the proper remedy is to grant a new trial.” Id.

¶ 23. Murder is defined as “[t]he killing of a human being without the authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being....” Miss.Code Ann. § 97-3-19(l)(a) (Rev.2006).

¶ 24. Blakeney argues that without his confession, the State had no evidence to show that he committed either murder. He argued that he was not in Jones County at the time of the murders. Blakeney’s brother, Anthony, testified that Blakeney was in Denham Springs, Louisiana, which is approximately 285 miles from Jones County, Mississippi, on the night before the murder. However, Anthony could not testify as to Blakeney’s whereabouts after 10:30 p.m. Telephone records indicated that his phone registered on a tower in Denham Springs at 2:07 a.m. and 7:40 a.m. The call received at 2:07 a.m. lasted for approximately one hour. The State offered testimony that Blakeney’s cell phone had an automatic answering feature that would allow the phone to answer itself when a call was made to it. The call made on Blakeney’s cell phone at 7:40 a.m. was to his brother.

¶ 25. It was undisputed that Blakeney purchased a Taser four days before the murders. An identical Taser was fired at trial, and the jury was shown that the serial number on the type of Taser that Blakeney purchased matched the serial number on the confetti shot out of the Taser fired in the Kitchens’s bedroom. Blakeney argued that he was not the one who shot the Taser, but that he had given it to his wife for protection.

¶ 26. Blakeney also presented evidence that DNA testing was done on hair follicles found under the fingernails of the victims, and that the follicles did not belong to Blakeney. The State, however, argued that the hair follicles could have belonged to Wanda or that they could have been unrelated to the murder.

¶ 27. We find that Blakeney’s arguments presented a factual dispute for the jury to resolve. As we have consistently held, the jury is charged with the responsibility of resolving factual disputes. Brown v. State, 934 So.2d 1039, 1044(¶ 18) (Miss.Ct.App.2006). Furthermore, we cannot find that the jury’s verdict was so contrary to the overwhelming weight of the evidence as to amount to an unconscionable injustice. Also, taking the evidence in the light most favorable to the State, we find that the trial court did not err in denying Blakeney’s motion for a directed verdict. Therefore, we find this issue to be without merit.

¶ 28. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

KING, C.J., MYERS, P.J, IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. ISHEE,J., NOT PARTICIPATING.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Michael Jerome WILLIAMS, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00800-COA.
    Court of Appeals of Mississippi.
    Aug. 18, 2009.
    Rehearing Denied Dec. 8, 2009.
    Certiorari Denied March 4, 2010.

      Virginia Lynn Watkins, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. A jury sitting before the Hinds County Circuit Court found Michael Jerome Williams, Jr., guilty of two counts of capital murder and one count of possession of a firearm by a prior convicted felon. For the two counts of capital murder, the circuit court sentenced Williams to two concurrent sentences of life without the possibility of parole. For possession of a firearm by a prior convicted felon, the circuit court sentenced Williams to three years in the custody of the Mississippi Department of Corrections (MDOC) to run concurrently with Williams’s two concurrent life sentences. Aggrieved, Williams appeals and claims that the circuit court erred when it excluded evidence that he attempted to commit suicide after he shot the two murder victims in this case. Additionally, Williams claims the evidence against him was legally insufficient to convict him of either count of capital murder. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. This case is the result of the murders of Latanya Thompson and Calvin Jennings on November 20, 2005. Latanya and Williams had been romantically involved for approximately ten years before they split up sometime in the summer of 2005. Although they were never married, Latanya and Williams had three children together. A few months prior to November 2005, Latanya and her three children moved into a home with her friend, Tawan-da Hedge, and Tawanda’s children. Later, Latanya’s brother, Zachary Thompson, moved in the house with Latanya, Tawan-da, and the children.

¶ 3. Despite them breakup, Williams continued to visit Latanya and their three children. In the early morning hours of November 20, 2005, Williams drove by La-tanya’s house in Hinds County, Mississippi. According to Williams, he wanted to stop by her house to tell her how much he loved her. However, Williams saw an unfamiliar car parked at Latanya’s house.

¶ 4. Williams stopped his car, got out, and knocked on Latanya’s front door. No one answered. Williams then looked through the window to Latanya’s bedroom. Williams saw Latanya in her bed. He did not recognize the man lying next to her.

¶ 5. Williams went to his car and armed himself with a revolver. He then returned to the front door and knocked again. Zachary, who had been sleeping on the living room sofa, heard the knocking. La-tanya told Zachary not to open the door because it was Williams that was knocking. Undeterred, Williams knocked louder. When no one answered the door, Williams kicked the door in.

¶ 6. Latanya confronted Williams and attempted to stop him, but he simply pushed her aside and proceeded to her bedroom. Williams shot Calvin in the chest at close range. Calvin managed to run out of Latanya’s bedroom, through the living room, and across the street. As he ran, Calvin exclaimed, “he shot me.” Williams later testified that he attempted to pursue Calvin, but he could not find him. Calvin ran to Shamika Whitlock’s house. Calvin knocked on the door, but Whitlock would not open the door. However, Whitlock called the police and reported that Calvin had been shot. Tragically, Calvin died at the scene.

¶ 7. When Williams could not find Calvin, he turned his attention toward Latan-ya. Williams found her behind her bedroom door. Williams then shot Latanya once in her chest. Latanya fell to the floor. According to Williams, Latanya said, “Mike, you’re killing me.” Williams testified that he said, “[b]aby, I’m sorry,” and then, undeterred, he shot her twice in the head.

¶ 8. Zachary had attempted to catch up to Calvin. When Zachary heard shots coming from the house, Zachary ran back to the house. Zachary encountered Williams, who was still armed with the revolver. Williams ran out of the house, got into his car, and drove away. Zachary went inside the house and found Latanya behind her bedroom door.

¶ 9. Williams was later indicted for two counts of capital murder during the commission of burglary of a dwelling and one count of possession of a firearm by a prior convicted felon. Williams pled not guilty and went to trial. Additional facts will be discussed in greater detail in the analysis portion of this opinion. The jury found Williams guilty of both counts of capital murder and the single count of possession of a firearm by a prior convicted felon. Williams appeals.

ANALYSIS

I. EVIDENCE OF ATTEMPTED SUICIDE

¶ 10. At trial, Williams sought to present evidence that he attempted suicide after he killed Calvin and Latanya. The prosecution objected and argued that Williams attempted suicide was inadmissible because his state of mind after he shot and killed Calvin and Latanya was irrelevant. The circuit court sustained the prosecution’s objection and refused to allow Williams to reveal to the jury that he attempted to kill himself after he had killed Calvin and Latanya.

¶ 11. Outside the presence of the jury, Williams presented proffered testimony from his mother, Beverly Williams. During the proffer, Beverly testified that on the morning of November 20, 2005, Williams had entered her apartment with a pistol to his temple. According to Beverly, Williams pulled the trigger, but the pistol failed to fire. During Williams’s testimony, he testified that he went to Beverly’s house after he had left the home of an unidentified friend.

¶ 12. Williams appeals and claims the circuit court committed reversible error when it refused to allow him to present evidence of his attempted suicide. The relevance and admission or exclusion of evidence is a matter of the trial court’s discretion which will be reversed only for an abuse of that discretion which results in prejudice to a party. Shearer v. State, 423 So.2d 824, 826-27 (Miss.1982). According to Williams, his attempted suicide “is certainly relevant to his state of mind during the tragic shootings that claimed the lives of Latanya ... and Calvin.... ” We disagree.

¶ 13. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. M.R.E. 401. Evidence that is irrelevant is inadmissible. M.R.E. 402. In essence, Williams claims the circuit court prohibited him from presenting evidence that would have corroborated his defense theory. That is, Williams argues that his attempted suicide bolstered his argument that he acted in the heat of passion. This Court has defined heat of passion as follows:

a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror. The passion felt by the person committing the act should be superinduced by some insult, provocation, or injury, which would naturally and instantly produce, in the minds of ordinarily constituted men, the highest degree of exasperation.

Booze v. State, 942 So.2d 272, 274(¶ 9) (Miss.Ct.App.2006) (quoting McClendon v. State, 748 So.2d 814, 817(¶ 13) (Miss.Ct. App.1999)). Williams’s attempted suicide after he killed Calvin and Latanya does not tend to make it more probable that he acted in the heat of passion at the time he killed them. While Williams’s attempted suicide can arguably be viewed as evidence that he regretted his actions, under the circumstances, it does not tend to make it more probable that he acted in the heat of passion when he killed Calvin and Latan-ya. Williams could have had the same regret after acting in a completely deliberative and lucid state of mind. Accordingly, his attempted suicide has no probative value. Additionally, the circuit court’s decision did not cause Williams to suffer undue prejudice. Williams was able to introduce his heat-of-passion theory through other evidence. Williams testified that he saw “this guy laying [sic] on my side of the bed, man. And man, I snapped. It was like (indicating sound).... It’s like two seashells on the inside of your (indicating sound).” Finally, the circuit court granted instruction S-3, which was a heat-of-passion manslaughter instruction. Based on the foregoing considerations, we find that this issue is without merit.

II. SUFFICIENCY OF THE EVIDENCE

¶ 14. Williams claims the evidence against him was legally insufficient to convict him of both Latanya’s murder and Calvin’s murder. Williams last challenged the sufficiency of the evidence in his post-trial motion for a judgment notwithstanding the verdict (JNOV)- A motion for a JNOV is a challenge of the sufficiency of the evidence. Jefferson v. State, 818 So.2d 1099, 1111(¶ 30) (Miss.2002). “A motion for directed verdict challenges the legal sufficiency of the evidence.” Booze, 942 So.2d at 274(¶ 7). Our review of the sufficiency of the evidence “is limited to whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed, and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. (internal quotations omitted). “After viewing the evidence in the light most favorable to the State, the evidence is sufficient if any rational trier of fact could have found the defendant committed each element of the crime beyond a reasonable doubt.” Id.

¶ 15. Williams was accused of two counts of capital murder in violation of Mississippi Code Annotated section 97-3-19(2)(e) (Rev.2006). Williams claims the prosecution presented legally insufficient evidence that he acted with deliberate design. “The killing of a human being without the authority of law by any means or in any manner shall be murder ... [w]hen done with deliberate design to effect the death of the person killed.... ” Miss.Code Ann. § 97-3-19(l)(a) (Rev.2006).

¶ 16. Williams claims there was no evidence that he acted with deliberate design because he “did not walk up to the house with his gun, ready for violence. It was not until he saw [Latanya] with someone else [that he] ‘snapped’ and went to his car, retrieved his gun, and kicked in the door.” However, Williams did not act when he first saw Calvin in Latanya’s bed. Instead, Williams went to his car, retrieved his revolver, knocked on the front door, kicked it in when no one answered, pushed past Latanya, shot Calvin, pursued him briefly, found Latanya, shot her once in the chest, responded to her final words with an apology, and then shot her twice in the head.

¶ 17. In Booze, this Court held that there was sufficient evidence of deliberate design where a defendant left the scene of an altercation, went and retrieved a pistol, returned to the scene of the altercation, and then shot and killed a victim. Booze, 942 So.2d at 275(¶ 12). Likewise, based on the evidence presented, we find that the evidence was legally sufficient to convict Williams of the murder of Latanya and Calvin. Accordingly, we find no merit to this issue.

¶ 18. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNTS I AND II, CAPITAL MURDER, AND SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE FOR EACH COUNT, AND COUNT III, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF THREE YEARS, WITH ALL SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., LEE AND MYERS, P.JJ, IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR.


author: IRVING, J,

text:
    Alexander WOMACK and Maurice Womack, Appellants, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00144-COA.
    Court of Appeals of Mississippi.
    Aug. 25, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied March 4, 2010.

      Benjamin Allen Súber, for Appellants.
    Office of the Attorney General By Laura Hogan Tedder, for Appellee.
    Before MYERS, P.J, IRVING and ROBERTS, JJ.
   IRVING, J,

for the Court.

¶ 1. Alexander and Maurice Womack were convicted in the Simpson County Circuit Court of attempted armed robbery and sentenced to serve five years in the custody of the Mississippi Department of Corrections. Aggrieved, Alexander and Maurice assert: (1) that the circuit court erred when it allowed the State to use unverifiable pretextual reasoning for using all six of its peremptory strikes against African American jurors and (2) that the trial court erred in denying their motion for a new trial because the verdict was against the overwhelming weight of the evidence.

¶2. Finding no reversible error, we affirm the judgment of the circuit court.

FACTS

¶ 8. On December 30, 2006, Alexander and Maurice were arrested for attempted armed robbery of the Exxon Truck Stop located on Highway 49 in D’Lo, Mississippi. They were indicted on March 5, 2007, and a trial was held on September 20, 2007.

¶ 4. During voir dire, the State struck six jurors: Amber Bagley, David Green, William McGee, Charles Smith, Tiffany Norwood, and Charles Ayers, all of whom are members of the African American race. The State struck five of the six jurors for being inattentive and struck the sixth juror because he did not honestly respond to one of the State’s questions.

¶ 5. During the State’s case-in-chief, Officer Kenney Kennedy, the town marshal for the town of D’Lo, testified that in the early morning hours of December 30, 2006, he was driving his patrol car and making his rounds when he decided to patrol around the Exxon Truck Stop. Officer Kennedy stated that as he was about to turn into the truck stop, he noticed a vehicle parked on the side of the building and that this struck him as odd. He further stated that he noticed a man standing outside of the vehicle and that the man’s face appeared to be covered. According to Officer Kennedy, he chose to turn into a second entrance of the truck stop, so that he could go around the building to get a better view of the vehicle without being noticed by its occupants. Once he got a better view, Officer Kennedy saw that the man standing outside of the car, later determined to be Alexander, and a man in the driver’s seat, later determined to be Maurice, were both wearing red scarves around their faces. Officer Kennedy stated that Alexander “had something down along his side” and that he began walking toward the front of the store. Officer Kennedy further stated that Alexander looked over and saw him, and this caused Alexander to spin around and walk back toward the vehicle. Officer Kennedy testified that once Alexander made it back to the car, “[Alexander] knelt down and threw the object under the car and [Officer Kennedy] could hear a metallic metal sound hitting under the car.” According to Officer Kennedy, Alexander stood up and began walking briskly toward the front of the store.

¶ 6. Officer Kennedy testified that he positioned his patrol car in order to see what Alexander had thrown under the car. After shining his headlights under the car, he noticed that “it was a long barrel type shotgun.” Officer Kennedy stated that at that point, Maurice got out of the car and attempted to walk to the front of the store but that he instructed him to get down on the ground. Officer Kennedy arrested Maurice and called for back up.

¶ 7. Officer Kennedy stated that he remembered the temperature of the morning of the incident because it was warmer than typical December weather. He remembered wearing a short-sleeved shirt and a pair of jeans. He testified that Alexander was wearing a dark overcoat, blue jeans, dark-colored shoes, a ski mask, and a bandana around his face on the morning of the incident. He further testified that Maurice was wearing a light-colored sweatshirt, jeans, shoes, and a bandana around his face.

¶ 8. Deputies Marvin Miller and Bernard Gunter with the Simpson County Sheriffs Department testified that they responded to Officer Kennedy’s call for assistance. Both deputies corroborated Officer Kennedy’s testimony about what Alexander and Maurice wore on the morning of the incident. Each deputy stated that they wore short-sleeved shirts that morning because of the warm weather.

¶ 9. Additional facts, as necessary, will be discussed during the analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 10. As previously mentioned, the State exercised peremptory challenges against six potential jurors of the African American race. Alexander and Maurice assert that the trial court erred in allowing the State to exercise its peremptory challenges against these potential jurors and argue that these challenges were pretextual.

¶ 11. In Carter v. State, 799 So.2d 40, 46 (¶¶ 21-27) (Miss.2001), our supreme court thoroughly discussed peremptory challenges and the necessary procedure for resolving disputes regarding alleged pretextual challenges:

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that a peremptory challenge cannot be used to exclude venire-persons from jury service based on their race. A peremptory challenge based on race constitutes a violation of due process. Id., 476 U.S. at 98, 106 S.Ct. at 1723-24.
The necessary steps to resolve a peremptory challenge based upon Batson are cited in Stewart v. State, 662 So.2d 552, 557-58 (Miss.1995) as follows:
1. The party objecting to the peremptory challenge must first make a prima facie showing that race was the criteria for the exercise of the peremptory challenge.
2. If this initial showing is successful, the party desiring to exercise the challenge has the burden to offer a race-neutral explanation for striking the potential juror.
3. The trial court must then determine whether the objecting party has met their burden to prove there has been purposeful discrimination in the exercise of peremptory challenges.
⅜ * * * * *
In Woodward [v. State], this Court stated the “next step is to determine whether the prosecution met its burden of showing sufficient race-neutral explanations for its strikes.” 726 So.2d [524,] 529-30 [ (Miss.1997) ]. “A peremptory challenge does not have to be supported by the same degree of justification required for a challenge for cause.” Stewart, 662 So.2d at 558. It is not necessary to meet the same standard of examination as a challenge for cause for a peremptory challenges, [sic]. Id.
[The Mississippi Supreme Court] has held that the trial judge is afforded great deference in determining if the expressed reasons for exclusion of a ve-nire-person from the challenged party is [sic] in [fact] race-neutral. Tanner v. State, 764 So.2d 385, 393 (Miss.2000). In Stewart, [the Mississippi Supreme Court] held that “one of the reasons the trial cowt is granted such deference in a Batson issue is because the demeanor-of the attorney making the challenge is often the best evidence on the issue of race neutrality.” [Stewart,] 662 So.2d at 559. Furthermore, the determination of discriminatory intent will likely turn on a trial judge’s evaluation of a presenter’s credibility and whether an explanation should be believed. Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991). In Stewart, [the Mississippi Supreme Court] also held that “despite the importance of demeanor evidence, the trial court must consider all the relevant circumstances, such as the way prior peremptory strikes have been used and the nature of the questions poised on voir dire.” [Stewart,] 662 So.2d at 559 (citing Griffin v. State, 607 So.2d 1197, 1202 (Miss.1992)). A reversal will only occur if the factual findings of the trial judge appear to be “clearly erroneous or against the overwhelming weight of the evidence.” Tanner, 764 So.2d at 393 (citing Stewart, 662 So.2d at 558; Davis v. State, 551 So.2d 165, 171 (Miss.1989)).

(Emphasis added).

¶ 12. In the case sub judice, the circuit court made a prima facie determination and required the State to present its race-neutral reasons for challenging the six potential jurors. Ultimately, the circuit court accepted the race-neutral reasons put forth by the State. As to each of the State’s peremptory challenges, the record reflects the discussion and the circuit court’s findings:

THE COURT: Amber Bagley.
[PROSECUTOR]: Strike.
[ATTORNEY FOR DEFENDANTS]: We’re gonna ask for Batson on that, Your Honor, whenever you get ready.
THE COURT: Okay. Excuse me.
[PROSECUTOR]: Do you want to do the Batson one at a time or just all when we get through, Judge?
THE COURT: I can do it now, if you want. Give me her race, gender and reason, please.
[PROSECUTOR]: The race is black. The gender is female. Even yesterday, Judge, when I was talking, she was not attentive. Especially today, she was not attentive. And I feel that’s the reason I’m striking her.
THE COURT: [Attorney for Defendants], do you have any evidence or argument to rebut that?
[ATTORNEY FOR DEFENDANTS]: Your Honor, she seemed — first of all, I believe that’s pretextual. She looked very observant to me in listening in. She was fully aware and actually shook her head on what I asked the jury on several occasions.
THE COURT: [Prosecutor], any response?
[PROSECUTOR]: No, sir. Just from mine [sic] yesterday and today, when I was either making my opening statement or doing my voir dire, you know, she was looking off and inattentive, is what I was saying.
THE COURT: If she was attentive to the defense attorney and not attentive to the prosecutor, that would be all the more reason for the [S]tate to strike her. Are any of the jurors you’ve accepted black females?
[PROSECUTOR]: Yes, Your Honor. Number 8 is a black female.
[ATTORNEY FOR DEFENDANTS]: No. I’ve got her — No. 8 is white.
[PROSECUTOR]: Excúseme. I’m sorry, Your Honor.
THE COURT: Are any of the jurors that you’ve accepted white females — I mean black females? Pardon me.
[ATTORNEY FOR DEFENDANTS]: Okay. There it is. I’m sorry. There it is.
THE COURT: Which one?
[PROSECUTOR]: Number 6.
THE COURT: Number 6 is a—
[PROSECUTOR]: Yes, sir.
THE COURT: Is that a female? Wilk-ie?
[ATTORNEY FOR DEFENDANTS]: Uh-huh.
THE COURT: Okay. An unusual name for a female. All right. With that observation, the strike will be allowed.
[PROSECUTOR]: Okay.
THE COURT: ... [I]t’s my finding it is a race, gender neutral reason and therefore it will be allowed. To the State, No. 10, David Green.
[PROSECUTOR]: Judge, David Green has been a juror before. He has a son — I asked this question yesterday; he did not respond to it. But he was on the jury last year. And I’ve checked with the sheriff; he has a son that has served time, and I think possibly that David may have also. He did not respond to that question. So that’s the reason I’m striking him.
THE COURT: Strike him.
[ATTORNEY FOR DEFENDANTS]: Your Honor, we again raise Batson. Because there were several people that said they—
THE COURT: She can’t hear /all.
[ATTORNEY FOR DEFENDANTS]: I’m sorry. There were several on the jury — white, black — where they had had family members in the jail — that had served time in prison. I’m sorry.
THE COURT: Well, that doesn’t exclude them.
[PROSECUTOR]: This man did not respond to that question, Your Honor.
THE COURT: What’s his race?
[PROSECUTOR]: He is a black male.
THE COURT: All right. If he has been convicted of a felony himself or a family member has, that certainly is a race gender [sic] neutral reason. Do you have anything to rebut that, [Attorney for Defendants]?
[ATTORNEY FOR DEFENDANTS]: Other than he did not respond, Your Honor, and that was clearly asked.
THE COURT: Then that’s the reason to strike him, if you got knowledge and you didn’t respond.
THE COURT: Number 16, William McGee.
[PROSECUTOR]: Your Honor, both yesterday and today Mr. Magee [sic], even in my opening statement today, beside being inattentive, he has a kind of a scowl look when I’m talking. It's—
THE COURT: Show me what he did.
[PROSECUTOR]: Kind of like this. It wasn’t a nod and a smile like some jurors do to you. And it seemed like when [Attorney for Defendant] was talking, he showed more attention. He kind of puts his head to the side and—
[ATTORNEY FOR DEFENDANTS]: Again, Your Honor, I—
THE COURT: What’s his race?
[PROSECUTOR]: His race is black male.
THE COURT: Okay. [Attorney for Defendants].
[ATTORNEY FOR DEFENDANTS]: Your Honor, I spoke with Mr. McGee. Obviously, we went to high school together. We weren’t close friends. So he remembered me when I didn’t remember him. He seemed very attentive. And I didn’t notice any scowling on the part of the State. And that was exactly the reason I said earlier and said the more reason not to strike, Your Honor. That’s more reason to leave him on. I think that’s just purely pretextual in trying to strike him on the grounds of race.
[PROSECUTOR]: And, Your Honor, I think that might have some part as to why he was paying more attention or looking — -more attention when [Attorney for Defendants] was speaking. He went to school with [Attorney for Defendants].
THE COURT: What African-males have you accepted?
[ATTORNEY FOR DEFENDANTS]: None. He’s struck them all.
[PROSECUTOR]: None, so far, Your Honor.
THE COURT: I’m going to allow the strike and find that it’s race-neutral. Because Mr. McGee attended school with defense counsel, that’s a valid reason to strike.
* * * * * ⅜
THE COURT: Okay. We are one short. You owe one more, [Prosecutor]. Charles Smith, 22.
[PROSECUTOR]: Your Honor, I’ve already struck one forklift operator and—
THE COURT: You sure did.
[PROSECUTOR]: — I would strike No. 22.
THE COURT: Okay.
[ATTORNEY FOR DEFENDANTS]: Your Honor, we again raise the Bat-son challenge again, because it’s pre-textual. Because again, he’s another black male.
THE COURT: All right, [Prosecutor], Gender, race[?]
[PROSECUTOR]: Charles Smith is a black male.
THE COURT: Reason?
[PROSECUTOR]: Well, there’s actually two reasons, Your Honor. First, I’ve already struck one forklift operator, and also in the last two days, Mr. Smith has not shown attention while I asked questions.
THE COURT: Okay. [Attorney for Defendants].
[ATTORNEY FOR DEFENDANTS]: Your Honor, I think he paid attention. He was fine. He was honest. We just again think it’s pretextual.
THE COURT: All right. I find it’s a race-neutral reason. Inattentiveness has been approved by our supreme court. So I will allow the strike.
[PROSECUTOR]: And also he’s a forklift operator.
THE COURT: Right, a forklift operator as well. 23 to the State, Tiffany Nor-wood.
[PROSECUTOR]: Strike, Your Honor.
THE COURT: 24, Charles Ayers to the State.
[PROSECUTOR]: Strike, Your Honor.
[ATTORNEY FOR DEFENDANTS]: Again, raise Batson on both. Both are black, one female and one male.
THE COURT: All right. Race gender reason for No. 23.
[PROSECUTOR]: Your Honor, No. 23 is a black female. She works with the department of corrections. And young people that work with the department of corrections — I feel [sic] is the type work whereas they develop a sympathy for it. So one working with the department of corrections, they could possibly be involved with them, and that’s the reason I’m striking her.
THE COURT: [Attorney for Defendants].
[ATTORNEY FOR DEFENDANTS]: Your Honor, I’ve never heard such a pretextual argument in my life. She works with the department of corrections, deals with these guys, and they lose sympathy for them because they get tired of hearing about it.
THE COURT: [Prosecutor].
[PROSECUTOR]: I guess it kind of goes along with engineers, Judge. I mean, that — I’m striking all people that work with the department of corrections on this panel. Also, as she— yesterday she was sitting there on the front row, right. She was inattentive yesterday and also today.
THE COURT: I’m going to allow the strike. I find it’s [a] race-neutral reason. Number 25 to the State, Randy Nichols. You are out of challenges.
[ATTORNEY FOR DEFENDANTS]: How about Charles Ayers?
THE COURT: Oh, Charles, Ayers. Pardon me. Excuse me.
[PROSECUTOR]: Charles Ayers is a black male. He was employed with the City of Jackson.
[ATTORNEY FOR DEFENDANTS]: He’s striking everybody that works with the City of Jackson.
THE COURT: Don’t interrupt.
[ATTORNEY FOR DEFENDANTS]: I’m sorry, Your Honor.
THE COURT: Don’t do that again.
[PROSECUTOR]: And again the reason is Mr. Ayers, yesterday and today on this panel, was inattentive to when I was asking questions and during my opening statement today.
THE COURT: [Attorney for Defendants].
[ATTORNEY FOR DEFENDANTS]: Your Honor, I think, again it’s just pretextual.
THE COURT: I’m going to allow the strike. Again, the supreme court has shown that inattentiveness is a general reason for a strike.

¶ 13. It appears from the circuit court’s ruling on each peremptory challenge that it determined that Alexander and Maurice failed to prove that there was purposeful discrimination. These determinations fall squarely within the discretion of the circuit court, which will not be reversed except upon a showing of clear error. Tanner, 764 So.2d at 393(¶ 14) (citing Stewart, 662 So.2d at 558). As mentioned above, “the demeanor of the attorney making the challenge is often the best evidence on the issue of race neutrality.” Stewart, 662 So.2d at 559. Here, the circuit court observed the demeanor of the prosecutor and concluded that the reasons set forth by the State were not pretextual. After reviewing the record, we cannot say that this conclusion was clearly erroneous. Therefore, this issue is without merit.

1! 14. Next, Alexander and Maurice assert that the circuit court erred by denying their motion for a new trial because the jury’s verdict is against the overwhelming weight of the evidence. Specifically, they argue that besides the testimony of Officer Kennedy, the State presented no evidence that they had any intent to rob the truck stop.

¶ 15. We follow a well established standard for determining whether a verdict is against the overwhelming weight of the evidence:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So.2d 948, 957 (Miss.1997). The evidence should be weighed in the light most favorable to the verdict. Id.

Nelson v. State, 10 So.3d 898, 908(41) (Miss.2009) (quoting Jones v. State, 904 So.2d 149(14) (Miss.2005)).

¶ 16. Regarding the intent for Alexander and Maurice to rob the truck stop, Officer Kennedy’s testimony supports the verdict. He testified that he saw Alexander walk half-way toward the store’s entrance with an object that was later determined to be a shotgun. He further testified that Alexander and Maurice had bandanas over their faces and that the car was parked in a suspicious area of the truck stop’s property. Accordingly, reasonable jurors could have found Alexander and Maurice guilty of attempted armed robbery. Allowing the verdict to stand will not sanction an unconscionable injustice. Therefore, this contention of error is without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF SIMPSON COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SIMPSON COUNTY.

LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . We note here that earlier during voir dire, the attorney for the defendants struck all engineers because he "[does] not like engineers on juries.”


text:
    John GALES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-02253-COA.
    Court of Appeals of Mississippi.
    Sept. 22, 2009.
    Rehearing Denied Feb. 9, 2010.

      Phillip Broadhead, Oxford, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, P.J., ROBERTS and MAXWELL, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. A DeSoto County Circuit Court jury found John Gales guilty of possessing 250 pills containing pseudoephedrine and/or ephedrine knowing, or under circumstances where one reasonably should know, that the pseudoephedrine and/or ephedrine would be used to unlawfully manufacture a controlled substance in violation of Mississippi Code Annotated section 41-29-313 (Rev.2005). Gales was also found guilty of one count of conspiracy to possess pseudoephedrine and/or ephedrine knowing, or under circumstances where one reasonably should know, that the pseu-doephedrine and/or ephedrine would be used to unlawfully manufacture a controlled substance in violation of Mississippi Code Annotated section 97-1-1 (a) (Supp. 2008). Gales was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007) to serve five years for each count, with the sentences to be served consecutively in the custody of the Mississippi Department of Corrections (MDOC) and to pay a fine of $1,000. He appeals, asserting four suggestions of error:

(1) The trial court abused its discretion in allowing the State to present expert testimony regarding the manufacture of methamphetamine.
(2) The trial court erred when it denied Gales’s motion for a new trial.
(3) The trial court erred when it denied Gales’s motion for a judgment notwithstanding the verdict (JNOV).
(4) The trial court erred by allowing the State to present evidence of Gales’s pri- or drug-related conviction.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 25, 2005, Gales and Denise Horn drove from Des Arc, Arkansas to Horn Lake, Mississippi supposedly to go to a casino and find Horn’s boyfriend. However, along the way, Gales, the driver of Horn’s vehicle, stopped at three or four Walgreens stores in order for Horn to purchase cold medications containing pseu-doephedrine and/or ephedrine. Their pseudoephedrine shopping spree ended at the Walgreens located at Highway 51 and Goodman Road in Horn Lake.

¶ 3. After Horn purchased the medicine containing the pseudoephedrine at the Highway 51 and Goodman Road Wal-greens, pharmacist John Bienvenue called the Horn Lake Police Department and reported Horn’s purchases. Bienvenue had been notified by the employees of other Walgreens stores in the area that Horn had been purchasing the same medicine at the other stores. Bienvenue testified that he and other pharmacists and pharmacy employees “were very suspicious of any purchase of pseudoephedrine products.” When purchasing the products, Horn was required to sign a log and present identification at each pharmacy.

¶ 4. When contacting the Horn Lake police, Bienvenue described Horn as a blonde white female wearing a navy blue shirt and blue jeans. Bienvenue also followed Horn out of the store and noted what kind of car she was getting into, as well as recording the car’s tag number. He reported this information to the Horn Lake Police Department. Officer Robert Riggs was called to the Walgreens, and as he was entering the parking lot, he noticed a woman that matched the description given by Bienvenue sitting in the passenger seat of a white Mazda 626.

¶ 5. As Officer Riggs entered the store’s parking lot, he observed both Gales and Horn take notice of him. After seeing Gales and Horn, Officer Riggs ran a check on the vehicle’s tag number, and he became aware that the car and the tag number were the same as Bienvenue had reported to the police.

¶ 6. Officer Riggs followed Gales and Horn after they left the Walgreens parking lot, and while following them, he observed a flurry of movements between the two. Officer Riggs testified that Gales and Horn kept leaning toward each other, and Horn appeared to be leaning over, as if to retrieve something from the floorboard of the passenger side of the vehicle. Gales and Horn continued these movements the entire time Officer Riggs followed them. After following them for a short distance, Officer Riggs pulled them over in the parking lot of a Supervalue store located on Highway 51 in Horn Lake. Horn continued to reach down in front of her.

¶ 7. As soon as Gales stopped the vehicle, he quickly got out of the vehicle and started walking toward Officer Riggs, but Horn remained in the car. Officer Riggs instructed Gales to get back into the vehicle. Gales had no driver’s license or identification, nor was he able to present a registration for the vehicle. At that time, Officer Riggs instructed Gales to get out of the car again, and Officer Riggs testified that, during this time, Gales was acting very nervous: He was pacing back and forth, raising his arms above his head, and answering questions inappropriately. For example, when Officer Riggs asked Gales where he was from and why he had stopped at Walgreens, Gales quickly answered that he had done nothing wrong, and Officer Riggs could check him and the car. No pills or contraband were found on Gales’s person. It was later learned that the vehicle belonged to Horn.

¶ 8. During this time, Officer Fikes, who was in training with Officer Riggs, was questioning Horn outside the vehicle. Officer Riggs testified that Horn “had what appeared to be some white pills in her hand, and she was ... standing ... [with] her legs tucked together like she was trying to [keep] something from possibly falling ... down her pants.” Officer Riggs gained Horn’s consent to search her, and then, Officer Riggs had Officer Fikes perform the search. He requested that Officer Fikes search Horn because Officer Fikes was a woman. While Officer Fikes was searching Horn, Officer Riggs noticed an abnormal “bulge” in the front of Horn’s pants, and he brought it to Officer Fikes’s attention. The “bulge” turned out to be a white plastic bag containing nearly three hundred white pills. The pills were later determined to contain pseudoephedrine and/or ephedrine. In addition to the cache of pills found on Horn’s person, the police officers found a pipe used for smoking drugs, more pills on the passenger side floorboard of the vehicle, and empty pill packages or “blister packs,” which normally contain the cold pills, stuffed between the front seats of the car.

¶ 9. Officer Riggs testified that both Gales and Horn were issued a Miranda warning, and they both stated that they understood their rights. Officer Riggs further testified that Gales told him that he and Horn had traveled to Mississippi to buy Wal-phed to take back to Arkansas, so they could trade it for money or drugs. Officers Shawn May and Todd Baggett, both narcotics agents, were called to the scene. Officer May testified that he too issued a Miranda warning before speaking with Gales. Officer Baggett testified that although he did not issue a Miranda warning to Gales, he asked Officer Riggs, prior to talking to Gales, whether or not one had been issued; he was informed that one had been issued. Officer Baggett transported Gales to the Horn Lake Police Department.

¶ 10. While en route to the police station, Gales told Officer Baggett the same thing he told Officer Riggs: that “he came down [to Mississippi] to buy pills to take back to Arkansas.” He went on to tell Officer Baggett that the pills were to trade for money or drugs. In fact, Gales told the police that he was going to receive $100 for driving Horn to Mississippi, and Horn was going to receive methamphetamine. He also told Officer Riggs that Horn Lake was a familiar area for him to purchase pseudoephedrine. Although willing to confess to procuring the pills to take back to Arkansas, Gales told the officers that he was not a methamphetamine “cook.” At trial, expert testimony established that “cooks” are those who utilize the pseudoephedrine and/or ephedrine, as well as other precursor chemicals, to manufacture methamphetamine.

¶ 11. After being arrested, Horn, gave a voluntary written statement to the Horn Lake Police Department concerning her involvement in purchasing the pseu-doephedrine pills. She stated: “I came today to Mississippi to buy Wal-phed to take back to Arkansas to sell [to] someone to make money that [I] needed. Not for the reason to cook them myself.”

¶ 12. Gales went to trial on the above-stated charges on December 6, 2007. In contradiction to what he told Officers Riggs, May, and Baggett on July 25, 2005, Gales testified that he did not know that Horn was stopping at numerous stores to purchase pseudoephedrine. Rather, he claimed that she asked him to take her to a casino to meet her boyfriend, who was a methamphetamine “cook,” and he stopped at the drug stores for her to purchase medicine she needed for cancer treatment. Gales testified that he began to get suspicious of Horn’s actions after she did not get the medicine she supposedly needed after the two stopped at a second or third Walgreens. Despite the numerous stops and the close proximity of the two, Gales testified that he was not aware of, nor had he seen, the hundreds of pills Horn purchased. He claimed that she must have been putting them in her large purse.

¶ 13. Gales testified that he had been a drug addict since he was fifteen or sixteen years old, and that he could be called a “dope fiend.” Gales was thirty-eight at the time of trial. Also, the State entered evidence of Gales’s two prior felony convictions in the Circuit Court of White County, Arkansas, one of which was a conviction of conspiracy to possess drug paraphernalia with intent to manufacture methamphetamine.

¶ 14. Following a guilty verdict by the jury, a hearing for post-trial motions and sentencing was had on December 17, 2007. Gales filed a motion for a JNOV and a motion for a new trial. The motions were denied on December 17, 2007, and Gales was sentenced to five years for both charges, with the sentences to run consecutively, as well as ordered to pay a $1,000 fine. Aggrieved, Gales now appeals.

ANALYSIS

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING EXPERT TESTIMONY REGARDING THE MANUFACTURE OF METHAMPHETAMINE.

¶ 15. Gales argues that the trial court erred by allowing expert testimony regarding the manufacture of methamphetamine. He asserts that it was highly inflammatory and prejudicial, and it did nothing more than confuse, inflame, and prejudice the jury. We disagree.

¶ 16. “It is well-settled that the admission of expert testimony is within the sound discretion of the trial judge. Furthermore, this Court will not reverse a trial court’s decision to admit expert testimony ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’ ” Lima v. State, 7 So.3d 903, 907(¶ 14) (Miss.2009) (citing Bishop v. State, 982 So.2d 371, 380(¶ 33) (Miss.2008)).

¶ 17. According to experts, methamphetamine, or crystal meth, is not difficult to make. The ingredients can be taken from widely-available, and otherwise legal, products such as flashlight batteries and non-prescription sinus and cold medications. Burchfield, v. State, 892 So.2d 191, 193 (¶ 1) (Miss.2004). “This unfortunate fact led our Legislature to enact several laws which, under certain circumstances, criminalize the possession of large quantities of one or more of these ingredients.” Id. However, possession alone is not sufficient: The State must prove that Gales knew, or reasonably should have known, that the pseudoephedrine pills were going to be used to unlawfully manufacture a controlled substance. Miss.Code Ann. § 41 — 29—313(1)(a)(I) (Rev.2005). The State simply met this burden.

¶ 18. At trial, Officer Kyle Hodge, who had been a narcotics agent for approximately nine years, was called as an expert to testify about the manufacture of methamphetamine. He described the ingredients and steps necessary to produce methamphetamine. Gales’s counsel objected to the testimony arguing that Gales was not charged with manufacturing methamphetamine, and he argued that any testimony about the manufacture of the drug would be unnecessary and would unfairly prejudice Gales. The objection was overruled, and Gales maintains this argument on appeal. We find, however, that the trial judge did not err in allowing the expert testimony.

¶ 19. The State correctly asserts that Burchfield v. State, 892 So.2d 191 (Miss.2004) is directly on point with the case at bar. In Burchfield, two defendants, who had also driven from Arkansas to the very same Walgreens in Horn Lake to purchase methamphetamine precursors, made the same argument as Gales concerning expert testimony related to the manufacture of methamphetamine. Id. at 195(¶ 12). In Burchfield, the supreme court stated that one of the elements necessary for the State to prove was that the defendant knew, or reasonably should have known, that the ephedrine would be used to manufacture a controlled substance. Id. at 195-96(¶ 15). In Burchfield, the supreme court acknowledged that the expert was properly qualified to provide the testimony regarding the manufacture of methamphetamine, in order to prove that Burchfield knew, or reasonably should have known, that the ephedrine or pseudoephedrine would be used to make an illegal substance. Id. The coui't went on to state that the expert went no further than was necessary to demonstrate a link between the pseudoephedrine found in the car and the defendant’s statement that he intended to sell the pills and manufacture a controlled substance. Id. Officer Hodge’s testimony in the instant case is the same.

¶ 20. We have thoroughly evaluated the record, and we have determined that Officer Hodge simply gave a thorough explanation of the four-step process in which methamphetamine “cooks” manufacture the illegal substance. He also explained that, since the laws have changed relating to the purchase of methamphetamine precursors, the “meth cooks” no longer ride around to purchase the items themselves. He testified that it was common for them to pay people to purchase the pills for them. He discussed how “meth cooks” were familiar with the laws that the legislatures of most states have enacted in an attempt to combat the proliferation of methamphetamine labs and production. He did nothing more than explain some of the actions that transpire in the illegal drug community. However, it appears from the record, Gales and Horn were unaware that Mississippi had enacted its precursor-possession statute, Mississippi Code Annotated section 41-29-313, because they both seemed eager to confess to the possession of pseudoephedrine, but they were emphatic that they were not going to “cook” it themselves. In any event, Gales’s argument concerning the prejudicial nature of the expert testimony virtually mirrors the one made by Burch-field, and just as in Burchfield, this assignment of error is without merit.

II. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED GALES’S MOTION FOR A NEW TRIAL.

1121. Gales claims that the jury verdict is against the overwhelming weight of the evidence, and the instant case should be reversed and remanded for a new trial. We disagree. “This Court[] sits as a ‘thirteenth juror’ [when] determining whether a jury verdict is against the overwhelming weight of the evidence.” Jenkins v. State, 947 So.2d 270, 277(¶ 24) (Miss.2006).

[We must] accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Id. (citation and quotation omitted). Sitting as the thirteenth juror, we will recap the evidence presented to the jury, in order to illustrate that the verdict is not against the overwhelming weight of the evidence.

¶ 22. The jury heard Bienvenue testily that Horn, Gales’s traveling companion, had been to other Walgreens in Horn Lake and purchased medicines that contained pseudoephedrine and/or ephedrine. Bienvenue also testified that he and other pharmacists in the area had become very suspicious of persons purchasing those types of medicines because of the change in the law, which regulated the sale and purchase of those drugs.

¶ 23. Following Bienvenue’s testimony, the jury heard Officer Riggs testify that he encountered Gales and Horn shortly after Bienvenue notified the Horn Lake Police Department of Horn’s repeated purchases of pseudoephedrine and/or ephedrine. Officer Riggs testified that he encountered them in the same vehicle that Bienvenue had reported to the police. Officer Riggs further testified that, while he was following them, he witnessed the two moving about within the car in an unusual manner. Officer Riggs also testified that, immediately after he pulled Gales over, Gales quickly got out of the car and walked toward Officer Riggs’s car, rather than waiting for Officer Riggs to approach his vehicle. However, Horn made no attempt to leave the vehicle. The jury could certainly infer from this behavior that Gales was attempting to provide Horn an opportunity to hide the pills that she had just purchased.

¶ 24. The jury was told how Gales appeared very nervous, and he was quick to respond to Officer Riggs’s question about why he and Horn were a Walgreens in the Horn Lake area by stating that he had done nothing wrong. Also, Gales was quick to tell Officer Riggs that he could search him and the car, rather than giving a purpose for their presence as Officer Riggs had requested. The jury heard Officer Riggs, Officer May, and Officer Bag-gett testify that Gales admitted to them that he had driven Horn to the area in order to purchase pseudoephedrine to take back to Arkansas to trade for money or drugs.

¶ 25. The jury heard how there were pseudoephedrine pills strewn about the car in which Gales was found; it is inconsequential that they were found on the passenger’s floorboard rather than the driver’s floorboard. Further, the jury heard how the police found empty “blister packs,” in which the cold pills were normally contained, stuffed between the driver’s seat and the passenger’s seat of the car. The jury heard that Gales’s companion, Horn, was found with a plastic bag containing nearly 300 pills stuffed down the front of her pants. Although Gales testified that he never saw the pills that Horn was purchasing and that she must have been putting them in her large purse, as a hypothetical thirteenth juror, we find that it seems implausible that Gales suffered from such tunnel vision as to not notice Horn popping out approximately 800 pills from their “blister packs,” placing them in a plastic bag, and then stuffing that bag down in the front of her pants, all while seated next to him.

1126. In contradiction to the police officers’ testimonies concerning his statements, Gales testified that he believed Horn was purchasing medicine because she had cancer. However, the jury heard him reluctantly admit that he and Horn, who were residents of and traveling from Arkansas, drove past numerous drug stores before hopping from pharmacy to pharmacy in Horn Lake to purchase cold medicine. In his brief to this Court, Gales argues that the instant case is simply a matter of “he said, he said.” We find this argument unavailing.

¶ 27. The jury is charged with the duty of assessing the credibility of witnesses. Thompson ex rel. Thompson v. Lee County Sch. Dist., 925 So.2d 57, 70(1119) (Miss.2006). Therefore, “[ejonflicting testimony does not evince ovenvhelming evidence; [rather][,j ‘where the verdict turns on the credibility of conflicting testimony and the credibility of the witnesses, it is the jury’s duty to resolve the conflict.” Brown v. State, 995 So.2d 698, 702(¶ 18) (Miss.2008) (citing Nicholson v. State, 523 So.2d 68, 71 (Miss.1988)) (emphasis added).

¶ 28. The record reveals that the evidence presented to the jury was much more than a “he said, he said” conundrum. In the instant case, the jury heard three police officers state under oath that Gales was found in a vehicle with Horn who had an illegal amount of pseudoephedrine and/or ephedrine pills, and Gales admitted to each of the officers that he drove Horn to purchase the pills to sell for the unlawful manufacture of methamphetamine.

¶ 29. Additionally, the jury received credible testimony about the manufacturing of methamphetamine and also about the activities of drug addicts and manufacturers in the Horn Lake area. Officer May, who stated that he frequently investigates methamphetamine cases, testified that the Horn Lake police had encountered so many problems in the area, that the police had begun to refer to it as “crystal alley.” He explained that this was due to the high number of drug dealers, manufacturers, and/or addicts, who would come to the area to purchase the precursors because there were numerous stores, such as Walgreens, Wal-Mart, and Rite-Aid, where a person could procure everything needed to produce methamphetamine. Officer May discussed how the problem was “so prevalent that ... numerous pharmacy employees ... had [his] cell number, and they would ... just call him personally when they had a suspicious person purchase large amounts of pseu-doephedrine.” He also explained that many of the people the police encountered purchasing precursors in the Horn Lake area were from Arkansas.

¶ 30. Gales argues that Officer May’s testimony and his reference to the area as “crystal alley” was highly prejudicial, and its admission amounted to error. We disagree. We do not conduct a de novo review on the admissibility of evidence under Mississippi Rule of Evidence 403. Jones v. State, 904 So.2d 149, 152(¶ 7) (Miss.2005). Rather, “[o]ur review is confined to ‘simply determine whether the trial court abused its discretion in weighing the factors and in admitting or excluding the evidence.’ ” Hudson v. State, 977 So.2d 344, 347(¶ 17) (Miss.Ct.App.2007) (citing Jones v. State, 904 So.2d 149, 152(¶ 7) (Miss.2005)). “A Rule 403 analysis asks only that a judge rely on his/her own sound judgment.” Id. (Quoting Jones v. State, 920 So.2d 465, 476-77(¶ 33) (Miss.2006)).

¶ 31. At trial, Gales’s counsel objected to Officer May’s testimony arguing that it was speculative. The trial judge required the State to lay a foundation for Officer May’s testimony. After that, he allowed the testimony based upon Officer May’s experience as a narcotics officer. Gales’s counsel then had the opportunity to cross-examine Officer May and establish that Officer May had not encountered, nor investigated Gales prior to the incident on July 25, 2005. We find the judgment of the trial judge to be sound, and we do not find that he abused his disei*etion by allowing the testimony.

¶ 32. Also, against Gales’s objection, the jury learned that he had been convicted of virtually the same crime in Arkansas. We will discuss the admission of this evidence further under issue four, but it was certainly a fact that the jurors had before them when they were weighing the evidence.

¶ 33. Finally, in testimony that appears quite damaging, Gales testified that a methamphetamine addict would seek to get to know the methamphetamine “cook” or dealer, rather than someone “on a street corner,” in order to attain “better” drugs at a cheaper price. He acknowledged that he was an addict, and that was how he came to know Horn and her boyfriend — a methamphetamine “cook.” The jury heard Gales admit that he and Horn were on their way to meet this “cook.” We find ample evidence in the record to verify that the jury’s verdict is not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Accordingly, this issue is without merit.

III. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED GALES’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT (JNOV).

¶ 34. The standard of review when considering the sufficiency of evidence is well settled:

[When] considering whether the evidence is sufficient to sustain a conviction in the face of a motion for a directed verdict or for a judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test[,] it is insufficient to support a conviction. However, this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (internal citations and quotations omitted). “Jury verdicts will not be disturbed except under the most dire of circumstances.” Brown, 995 So.2d at 701(¶ 8) (citation omitted).

¶ 35. The cornerstone of Gales’s argument is that he was not physically in possession of the pills containing pseu-doephedrine and/or ephedrine. The fact that the pills were not found on Gales’s person, as they were on his companion, does not defeat the State’s assertion that he was in possession of the pills. The supreme court has held that:

What constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of “possession” is a question which is not susceptible of a specific rule. However, there must be sufficient facts to warrant a finding that [the] defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

Curry v. State, 249 So.2d 414, 416 (Miss.1971) (emphasis added).

¶ 36. In Dampeer v. State, 989 So.2d 462, 465(¶ 11) (Miss.Ct.App.2008), a case which is analogous to the case at bar, the police witnessed the defendant throw away a pill bottle containing drugs after he saw the police officer coming toward him. The police officer retrieved the bottle within minutes as well as observed the actions of the defendant. Id. This Court found that the police officer’s observance of the defendant’s behavior was legally sufficient to find that the defendant had been in possession of the drugs, although the defendant was not in possession of the drugs at the time he was apprehended. Id. at (¶ 12). The same is true in the case at bar.

¶ 37. Bienvenue established that Horn had purchased pseudoephedrine at three or four pharmacies. Officer Riggs encountered Gales and Horn right after they left the Walgreens where Bienvenue worked. Officer Riggs observed the frenetic movements happening between Gales and Horn inside the vehicle after they knew that Officer Riggs was following them, and the pills and their empty packages were found in the vehicle immediately after Gales and Horn exited the vehicle. Also, Horn, who was seated beside Gales in the vehicle, was found with a plastic bag containing approximately 300 pills stuffed down the front of her pants. Just as in Dampeer, in the case at bar there were sufficient facts to warrant a finding that Gales was not only aware of the presence of the cold medicine containing the pseudoephedrine and/or ephedrine, but also, he was intentionally and consciously in possession of it.

¶ 38. We further address the conflicting testimonies of Gales and the police officers. Not one, but three police officers testified that Gales admitted his participation in the pill-buying scheme. However, Gales later disallowed his statements to Officers Riggs, May, and Baggett and, in essence, accused the officers of either poor memory or dishonesty. Therefore, we must determine whether the officers’ testimonies maintained them credibility and competency, and whether the testimonies were legally sufficient to prove the elements of the crime for which Gales was charged.

¶ 39. In Buie v. State, 761 So.2d 892 (Miss.Ct.App.2000), which involves constructive possession and a disputed confession, is applicable to the case at bar. After drugs, weapons, and large sums of cash were discovered in what was believed to be Buie’s bedroom, Buie turned himself in to police and confessed that the drugs were his. Id. at 893 (¶¶ 2-3). Buie later denied the confession. Id. at (¶ 3). This Court stated that “Buie’s attack on [the] [d]etec-tive’s ... veracity does not remove her testimony from the realm of competent evidence; instead, it conjures a credibility issue on the worth of her testimony.” Id. at 894(¶ 10). We went on to state that “[t]he jury has the prerogative to pass upon the weight and worth of all the testimony.” Id. (citation omitted). Just as in Buie, the jury had the opportunity to weigh all of the testimony. Obviously, the jury resolved the credibility issue and conflicting testimony in' favor of the police.

¶ 40. Considering the evidence in the light most favorable to the State, we find the evidence was legally sufficient to convict Gales of both possessing illegal amounts of pseudoephedrine with the intent to use them in an unlawful manner and conspiracy to possess pseudoephedrine in violation of Mississippi Code Annotated Section 97 — 1—1(a). Accordingly, this issue is without merit.

IV. WHETHER THE TRIAL COURT ERRED BY ALLOWING EVIDENCE OF GALES’S PRIOR DRUG-RELATED CONVICTION.

¶ 41. Asserting that the trial judge erred by allowing his “pen pack” into evidence, which verified that Gales was previously convicted of possessing drug paraphernalia with the intent to manufacture methamphetamine, Gales extensively argues that Mississippi Rule of Evidence 609 and Peterson v. State, 518 So.2d 632, 636 (Miss.1987) require that a trial judge make an on-the-record determination that the probative value of a prior conviction outweighs its prejudicial effect before admitting any evidence of a prior conviction. He asserts that the trial judge erred by failing to comply with the Peterson on-the-record balancing test. We do not dispute Gales’s understanding of Rule 609 or Peterson. However, his reliance on these authorities is misplaced since the record is clear that the tidal judge allowed the admission of Gales’s past conviction under Mississippi Rule of Evidence 404(b) in order to address the issue of Gales’s knowledge and intent, and not to impeach him under Rule 609 or attack his credibility.

¶ 42. “Evidentiary issues are decided under an abuse of discretion standard.” Bone v. State, 914 So.2d 209, 213(¶ 15) (Miss.Ct.App.2005) (citing Lindsey v. State, 754 So.2d 506, 511(¶ 23) (Miss.Ct.App.1999)). “A case may be reversed based on the admission of evidence only if the admission results in prejudice and harm or the admission affects a substantial right of a party.” Id. (citing Smith v. State, 839 So.2d 489, 495(¶ 8) (Miss.2003)).

¶ 43. Character evidence is not admissible to prove that one acted in conformity therewith. M.R.E. 404(a). Further, “[e]vidence of another crime or prior bad act is not usually admissible.” Bone, 914 So.2d at 213(¶ 16) (citing Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995)). “However, according to Rule 404(b), evidence of other crimes or bad acts may be admissible to prove identity, knowledge, intent, motive or to prove scienter.” Id. (citing Simmons v. State, 813 So.2d 710, 716(¶ 30) (Miss.2002)).

¶ 44. If the trial court finds that the evidence is admissible under Rule 404(b), it must still consider whether the evidence passes the Rule 403 filter. Simmons, 813 So.2d at 716(¶ 33) (citation omitted). Rule 403 states that even “relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

¶ 45. In response to Gales’s objection to the admission of evidence of his prior conviction, the State specifically said the evidence of Gales’s prior conviction for conspiracy to possess pseudoephedrine and/or ephedrine with the intent to manufacture methamphetamine was being offered under Rule 404(b) to prove knowledge and intent. Likewise, the record clearly reveals that the trial judge allowed the admission of the evidence under Rule 404(b), and that he performed a Rule 403 balancing test. The trial judge stated the following:

I don’t think it would be disputed by anyone that [the] evidence is prejudicial to Mr. Gales. However, the Court will note under 404(b) that it goes, in the Court’s opinion, even more to the issue of knowledge as to what those pills would be used for and also as to Mr. Gales’[s] intent. The State does have to prove that Mr. Gales knew ... [,] or under circumstances where he reasonably should [have] know[n][,] that it would be used in the unlawful manufacture of a controlled substance. His prior conviction of ... possession with intent to manufacture a controlled substance[,] being the same controlled substance, methamphetamine, ... is absolutely probative of the issues set forth by the State and specifically as to one of the required elements of the offense, which must proven.
Likewise, the ... Court finds under [Rule] 403 that the probative nature of this evidence is not outweighed by its prejudicial effect, and further, given the elements of the crime and what must be proven[,] ... especially ... the intent and knowledge ... [,] the Court finds that the probative value of this evidence in fact outweighs any prejudicial effect, and it will be allowed.

Despite the trial judge’s analysis, Gales argues that the absence of a limiting instruction to the jury “alone should have required exclusion of the prior conviction.” This assertion is incorrect. “[T]he Mississippi Supreme Court [has] abandoned the requirement that trial judges issue a sua sponte limiting instruction when evidence is admitted for a limited purpose.” Dao v. State, 984 So.2d 352, 362(¶ 35) (Miss.Ct.App.2007) (citing Brown v. State, 890 So.2d 901, 913(¶ 36) (Miss.2004)).

¶ 46. In Brown, the supreme court held that “[t]he burden should properly be upon the trial counsel to request a limiting instruction.” Brown, 890 So.2d at 913(¶ 36). Mississippi Rule of Evidence 105 states: “When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” (Emphasis added). “The rule clearly places the burden of requesting a Rule 404(b) limiting instruction upon counsel.” Brown, 890 So.2d at 913(¶ 36). Moreover, the supreme court has recognized that “[i]n many instances a limiting instruction from the bench can actually focus a jury’s attention on the sensitive testimony.” Id. at (¶ 35). “[I]t is not per se prejudicial to a defendant if a jury simply hears an isolated instance of a crime or bad act in the course of a trial.” Id.

¶ 47. Additionally, the State told the jury during its closing argument that the jury “[could] use [Gales’s] previous conviction to help establish that he knew or should have known what those pills were going to be used for.” Gales’s argument that the jury could do nothing but use this evidence as proof that Gales committed the crime in the instant case, is unsupported. Furthermore, the evidence contained in Gales’s “pen pack” was not the first mention of Gales’s prior experience with the law. Gales testified that he became uneasy after Horn left the second Walgreens without her cancer medication because he “had been in trouble before.” He also acknowledged that Arkansas had revoked his parole after he was arrested in Mississippi because of the incident in the instant case. Gales testified: “I turned myself in in Arkansas because they revoked my parole and probation because I caught charges up here. So I’ve [served] ... ten months in the county jail, [and] six months in [an] Arkansas prison.”

¶ 48. The jury was alerted to Gales’s legal history before they retired to deliberate with documentation of his prior conviction in hand. Moreover, although Gales objected to the evidence, he did not request a limiting instruction, so this issue is procedurally barred, as it was not initially raised at the trial court level. Dao, 984 So.2d at 362(¶ 35) (citing Field v. State, 856 So.2d 492, 493(¶ 5) (Miss.Ct.App.2003)). This issue is without merit.

¶ 49. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF COUNT I, CONSPIRACY TO POSSESS 250 DOSAGE UNITS OF PSEUDOEPHEDRINE AND/OR EPHEDRINE, AND SENTENCE AS A HABITUAL OFFENDER OF FIVE YEARS, AND COUNT II, UNLAWFUL POSSESSION OF PSEU-DOEPHEDRINE AND/OR EPHEDRINE, AND SENTENCE OF FIVE YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A $1,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR.

      . Testimony established that there were actually 307 pills found in Gales’s companion’s possession or in the vehicle occupied by Gales. Mississippi Code Annotated section 41-29 — 313(2)(c)(i) (Rev.2005) makes it unlawful for an individual to purchase, possess, transfer, or distribute 250 dosage units of pseu-doephedrine with the intent that they be used to unlawfully manufacture methamphetamine.

      . At trial, it was intimated that Gales and Horn stopped at other Horn Lake stores and/or pharmacies, but Gales denied such action.

      . The record does not reflect Officer Fikes's first name.

      . Defendants must be informed of the right to consult with an attorney before and during questioning and the right against self-incrimination prior to questioning by police; defendants must not only understand these rights, but they must voluntarily waive those rights. Miranda v. Arizona, 384 U.S. 436, 467-75, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Officer Riggs and Officer Shawn May testified that they actually read Gales and Horn their Miranda rights from a small white card they carried in their wallets.

      . Wal-phed is a cold and/or allergy medicine that contains pseudoephedrine and/or ephedrine.

      . Mississippi Code Annotated section 41-29-313 makes possession of precursor drugs or chemicals unlawful if the person in possession of the precursors intends to use them to manufacture methamphetamine. See Green v. State, 880 So.2d 377, 380(¶ 11) (Miss.Ct.App.2004). Section 41-29-313 lists the types of drugs or chemicals which are considered precursor drugs, and pseudoephedrine and/or ephedrine are among the items listed. “The term 'precursor drug or chemical’ means a drug or chemical that, in addition to legitimate uses, may be used in manufacturing a controlled substance....” Miss.Code Ann. § 41-29-313(1)(b).

      . We do not set out to survey all of the states that have enacted similar precursor statutes, but it is apparent that Officer Hodges was correct in his testimony concerning the changing laws within the region around the time Gales and Horn were arrested. We look at the law in some of the states surrounding Arkansas — Gales’s home state. Arkansas Code Annotated section 5-64-1101 (2005) states in part: "It is unlawful for any person to possess more than five grams (5g) of ephedrine or nine grams (9g) of pseudoephed-rine or phenylpropanolamine, or their salts, optical isomers, and salts of optical isomers, alone or in a mixture”; section 5-64-1102 addresses the possession of pseudoephedrine with the intent to manufacture methamphetamine; and section 5-64-1103 regulates the sale of pseudoephedrine and/or ephedrine.
      Likewise, Tennessee enacted the Meth-Free Tennessee Act of 2005, and Tennessee Code Annotated sections 39-17-431 and 39-17-433 (2005) regulate the sale of pseudoephedrine and ephedrine precursors, as well as making the possession of the products, with the intent to utilize them in the production of methamphetamine, illegal. Oklahoma Statute Annotated title 63 sections 2-332 and 2-333 were enacted in 2002 and amended in 2003. Louisiana's precursor statute, Louisiana Revised Statute Annotated section 40:962.1.2 (2005) has been repealed by Louisiana’s Legislative Act No. 314 (2009). However, the Act does not eliminate or minimize the efforts of the legislature to prevent the possession of these precursors with the intent to manufacture methamphetamine. Rather, the Act enhances those efforts by legislating that there be a central computerized database to monitor the sale of pseudoephedrine and/or ephedrine throughout the state. It is clear, there were changes in many states' laws during or around 2005, and the legislative war on methamphetamine continues.

      . Officer Riggs testified that Gales told him dial Horn was his girlfriend, but Gales denied that statement at trial.

      . Mississippi Code Annotated section 41-29-315 (Rev.2005) establishes restrictions on the purchase and sale of certain methamphetamine precursors, as well as the penalties that may be assessed for violations of this section. Section 41 — 29—315(2)(a) provides that "[a] retail establishment or individual shall not transfer, sell, deliver, distribute, dispense or provide to a customer in a single retail sales transaction: (i) More than two (2) packages of any compound, mixture or preparation containing pseudoephedrine or ephedrine.’’ Section 41-29-315(4) states that ''[n]o retailer may sell to any person any product or products containing pseudoephedrine or ephedrine unless the retailer requires the purchaser to display photo identification in order to complete the purchase.”

      . The factors that a trial judge should consider when ruling on the admissibility of evidence under Mississippi Rule of Evidence 609 are: (1) the impeachment value of the prior crime (2) the point in time of the conviction and the witness’ subsequent history (3) the similarity between the past crime and the charged crime (4) the importance of the defendant's testimony, and (5) the centrality of the credibility issue. Peterson, 518 So.2d at 636 (citation omitted).