Biggs v. State
| Docket Number: | 2004-KA-01163-COA Linked Case(s): 2004-CT-01163-SCT ; 2004-KA-01163-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-03-2006 Opinion Author: Myers, P.J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Felony shoplifting - Prior convictions - Limiting instruction - M.R.E. 105 - M.R.E. 404(b) - Lesser-included offense instruction - Sworn jury Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Chandler, Griffis and Barnes, JJ. Non Participating Judge(s): Ishee, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 04-15-2004 Appealed from: Jackson County Circuit Court Judge: Robert P. Krebs Disposition: FELONY SHOPLIFTING- SENTENCED TO SERVE A SENTENCE OF FIVE (5) YEARS IMPRISONMENT IN THE CUSTODY OF MDOC AS A HABITUAL OFFENDER WITHOUT BENEFIT OF PAROLE OR EARLY RELEASE. CONVICTED OF FELONY SHOPLIFTING Case Number: 2002-10,198(3)(1) |
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| Party Name: | Attorney Name: | |||
| Appellant: | O'Neal Biggs |
ROSS PARKER SIMONS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. DANIEL HINCHCLIFF |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Felony shoplifting - Prior convictions - Limiting instruction - M.R.E. 105 - M.R.E. 404(b) - Lesser-included offense instruction - Sworn jury |
| Summary of the Facts: | O’Neal Biggs was convicted of felony shoplifting and sentenced to five years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Prior convictions Biggs argues that his prior shoplifting convictions should not be introduced in the guilt phase of the trial but, rather the elements of prior convictions should be decided in a bifurcated trial. This issue was addressed in Bufkin v. State, 867 So.2d 285 (Miss. Ct. App. 2004) where the court held that the prior convictions are elements of the crime that must be determined by the finder of fact beyond reasonable doubt as a part of the prosecution's case in chief. Issue 2: Limiting instruction Biggs argues that if the prior convictions are properly admitted as elements of felony shoplifting, he should have received a limiting instruction to the jury informing them for what purpose and to what extent the evidence of these prior convictions could be considered and that the trial court should have given the instruction sua sponte. M.R.E. 105 clearly places the burden of requesting a Rule 404(b) limiting instruction upon counsel. Issue 3: Lesser-included offense instruction Biggs argues that the court committed reversible error by not instructing the jury on misdemeanor shoplifting. A lesser-included-offense instruction should only be given after the trial court has carefully considered the evidence and is of the opinion that such an instruction is justified by the evidence. A presumption of validity is attached to abstracts of convictions and will suffice to meet the burden of proof required by the statute. Biggs called no witnesses, presented no evidence and did not take the stand himself to contest the validity of the abstracts or the identity of the person represented in those abstracts. Issue 4: Sworn jury Biggs argues that his conviction should be reversed due to there being no evidence in the record that the petit jury was sworn in as required by section 13-5-71. There was no objection by trial counsel to the failure to administer the oath and there is no indication from the record that the oath was not administered. In fact, the sole mention of the oath in the record indicates that the oath was administered. |
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