Justus Barfield v. State of Mississippi

        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2021-KA-00660-COA

JUSTUS BARFIELD                                                             APPELLANT

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          05/13/2021
TRIAL JUDGE:                               HON. MARK SHELDON DUNCAN
COURT FROM WHICH APPEALED:                 NESHOBA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    JAMES A. WILLIAMS
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: CASEY BONNER FARMER
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISTRICT ATTORNEY:                         STEVEN S. KILGORE
DISPOSITION:                               AFFIRMED - 12/13/2022
MOTION FOR REHEARING FILED:

       BEFORE WILSON, P.J., GREENLEE AND EMFINGER, JJ.

       EMFINGER, J., FOR THE COURT:

¶1.    Justus Barfield was found guilty of accessory after the fact to murder by a jury in the

Neshoba County Circuit Court. He was sentenced to a term of twenty years in the custody

of the Mississippi Department of Corrections, with ten years to serve and the last ten years

suspended, followed by five years of supervised probation. Following the denial of his post-

trial motion for judgment notwithstanding the verdict or, in the alternative, a new trial,

Barfield filed a notice of appeal of his conviction and sentence.

                                          FACTS

¶2.    On October 20, 2019, Tyrone Broxton got a call from James Kelly who indicated that

he needed Broxton’s help. As a result, Broxton went to the Sandhill community to Kelly’s
mother’s old trailer. When he arrived, Kelly told Broxton that a couple of months earlier, his

house was robbed by DeMarquis Houston and three other men. Kelly said that the robbers

had held his children and their mother “at gunpoint.” Kelly had arranged for Joanna Brook

Gilmer to bring Houston to the trailer that night, so Kelly and Broxton went to the laundry

room in the back of the trailer to wait for them to arrive.

¶3.    Sometime after 10 p.m. that night, according to Gilmer, she picked up Houston at the

Pendleton Square Apartments. They were supposedly going to Kelly’s trailer to get high.

Kelly was supposed to meet them there and bring them some weed. When they arrived at the

trailer, it did not appear that anyone else was there, so they went into the trailer to wait.

Gilmer messaged Kelly who indicated that he was on the way. Gilmer and Houston watched

television, and they started having sex. At that point, Broxton and Kelly came out from the

back of the trailer where they had been hiding. Kelly pointed a gun at Houston and told him

to stay on the couch and not to scream, or he would kill him. While Gilmer was getting

dressed, Kelly zip-tied Houston’s hands and feet. After Gilmer left, Kelly questioned

Houston about the robbery, and Houston identified the others involved. Broxton stepped

outside to smoke, and Kelly followed a few minutes later after he put tape over Houston’s

mouth. When Broxton asked Kelly what he was going to do, Kelly said that Houston was

going to be here for a couple of days, but he also said he was going to kill him. While they

were outside talking, they heard a commotion inside the trailer. When they went inside, they

saw Houston “seizing up, rolling around like he was having a seizure.” Broxton said Houston

was still naked, zip-tied, and had duct tape on his mouth. When it was clear that Houston was



                                              2
dead, Kelly asked Broxton if he knew where to put a body. Kelly asked Broxton for help

putting the body in a freezer. When they could not find a rachet strap to secure the freezer,

Kelly told Broxton he could leave. Broxton testified that he had no further connection to the

disposition of Houston’s body after he left the trailer.

¶4.    Ian Caleb Thompson testified that in October 2019, he was living on his family’s land

with his ex-girlfriend and was working in his family’s farming business. At that time,

Barfield was unemployed and living with them. Thompson had gone to high school with

Kelly, and they continued to visit one another frequently. Thompson testified that Kelly and

Barfield were close friends and that Kelly would often visit at Thompson’s house. When

Thompson went home for lunch on October 21, 2019, Kelly was at his house visiting with

Barfield. Thompson joined them, and Kelly told them what happened with Houston and

about having Houston’s body in a freezer. He described how he had tied Houston up and that

he had thrashed around and died. Kelly told them that he needed to get rid of the body and

that he had a friend in Louisville that had a place he could hide it. After Kelly left,

Thompson and Barfield talked about what a “crazy situation” Kelly had described.

¶5.    Thompson testified that later that evening, between 8 and 9 p.m., Kelly came back to

the house with Houston’s body in the freezer in the back of his truck. Kelly wanted to hide

the body in Thompson’s pond, which was across the road from his house. According to

Thompson, Kelly asked them for their assistance. They talked for about ten to fifteen minutes

and developed a plan to put the body in the pond. Thompson said, “[W]e can do this,” and

went and got his forklift (loader). Kelly and Barfield waited for Thompson to come back.



                                              3
Thompson pulled the forklift up to the truck, and he and Kelly slid the freezer over onto the

forks. Thompson drove the forklift across the road to the pond, and Kelly and Barfield

followed along close beside the forklift. When they got to the edge of the pond, Thompson

put the pallet down; he and Kelly pushed the freezer into the pond, but it floated. When they

realized that it was not going to sink, Barfield stood on the bank of the pond and watched

while Thompson and Kelly struggled to get the freezer back on the bank.

¶6.    Once the freezer was back on the bank, Thompson testified that the three men

discussed what to do next. Thompson and Barfield told Kelly they were not going to touch

the body. After Thompson carried the forklift back to his shop, he got in his Jeep and went

back to the pond to pick up Kelly and Barfield. They all went to Thompson’s shop, and

Thompson told Kelly to “get whatever you need.” Kelly got a tarp, a strap, and other

materials. The three men then went back to the pond and dropped Kelly off so that he could

submerge the body. Thompson and Barfield went home. Kelly showed up at their house

about 3 a.m. and took a shower but left without talking to anyone.

¶7.    Thompson testified that he did not go back to the pond the next day. He stated that

because he worked in the area, he would look at the pond from a distance. He knew that

Barfield also checked the pond from time to time because they would have conversations

about it. Barfield, at some point, told Thompson that he saw something “protruding from the

water.” Barfield and Thompson went to the pond together and observed what they believed

to be a body part. Thompson then contacted Kelly and told him that he needed to come do

something because it was obvious there was something out there in the pond.



                                             4
¶8.    Thompson further testified that Kelly did not offer him or Barfield anything for their

help. He confirmed that the pond is in Neshoba County. On cross-examination, in response

to leading questions, Thompson testified that Barfield did not drive the forklift, did not touch

the freezer, did not drive any vehicle, did not pick the pond as the location to put the body,

did not assist in putting the freezer in the pond, did not choose the tarp or straps, and did not

call Kelly and tell him to come back after they saw a body part. Thompson said that Barfield

did nothing himself, physically, to put the body in the pond.

¶9.    On re-direct examination, Thompson confirmed that Barfield was the first person

Kelly talked to about the need to get rid of the body. Thompson reaffirmed that they were all

together throughout the period he testified about on direct examination. He confirmed that

he and Barfield checked the pond in the days and weeks after the incident. He again stated

that it was Barfield who first saw Houston’s body floating in the pond.

¶10.   Investigator Derek Wyatt of the Neshoba County Sheriff’s Department was assigned

to the case of Houston’s disappearance. Suspects were developed through Crime Stoppers

and letters received by law enforcement. Kelly and Broxton were the primary persons of

interest. Wyatt discovered that Kelly was wearing a court-ordered GPS monitoring device

during the period of Houston’s disappearance. A search warrant was served upon the

monitoring company, and law enforcement obtained timed-location information for Kelly

during the relevant time period based upon witness interviews. This led the investigation to

Kelly’s trailer where Wyatt found all the flooring had been ripped out and placed in a burn

pit. Some tips had said that Houston’s body was in a pond or a lake. Also from the GPS



                                               5
information, several ponds were identified in the general area of Kelly’s trailer. Wyatt

testified that the information placed Kelly at “[Thompson’s] residence, all around the chicken

houses, all around the shop, and the GPS actually put his monitor out in the water in the

pond.” Wyatt testified that the information shows Kelly was in this area from about 9:30 p.m.

to almost 2:30 a.m. on October 21-22, 2019.

¶11.   Neshoba County Sheriff Eric Clark testified that when he took office in January 2020,

he assumed the responsibility for the ongoing investigation into Houston’s disappearance.

Based upon information obtained during Wyatt’s investigation, Sheriff Clark testified that

a search warrant was obtained for a pond on Thompson’s property in February 2020. Law

enforcement used two six-inch pumps and started removing the water from the pond.

Houston’s body was found wrapped in a tarp and attached to a feed trough. The body and the

trough had been submerged by the use of forty-five-pound dumbbell weights, cinder blocks,

and other things used to weigh it down.

¶12.   At the time of Barfield’s trial, Kelly was awaiting trial on a charge of capital murder.

Gilmer and Broxton had already pled guilty to manslaughter, and Thompson had pled guilty

to accessory after the fact of murder. Barfield was tried, and the jury found him guilty of

accessory after the fact to murder. He appealed his conviction and raised eight assignments

of error, which we address separately below.

                                        ANALYSIS

       I.     Was the evidence legally sufficient to prove Barfield guilty as an
              accessory after the fact to murder?

¶13.   Barfield contends that the evidence at trial showed that Barfield was merely present


                                              6
during the events described above. He contends that there was no evidence that he planned

or participated with the others in placing Houston’s body in the freezer and into the pond. He

contends that the proof showed only that he was physically present while others discussed

what to do and then placed Houston’s body in the pond. Therefore, Barfield contends, the

evidence was legally insufficient to support the conviction.

¶14.   In Buchanan v. State, 

, 630 (¶49) (Miss. 2021), the supreme court

described the standard of review of this issue as follows:

       This Court reviews de novo a trial court’s ruling on the legal sufficiency of the
       evidence.” Haynes v. State, 

 [(¶6)] (Miss. 2018) (citing
       Brooks v. State, 

 [(¶11)] (Miss. 2016)). “When
       reviewing a case for sufficiency of the evidence, ‘all credible evidence that
       is consistent with guilt must be accepted as true, and the State is given the
       benefit of all favorable inferences that may be reasonably drawn from the
       evidence.’” 

 (alterations in original) (internal quotation marks omitted)
       (quoting Burrows v. State, 

 [(¶9)] (Miss. 2007)). “We
       examine the evidence in the light most favorable to the State, while keeping
       in mind the beyond-a-reasonable-doubt burden of proof standard.” 

 (citing
       Dees v. State, 

 (Miss. 2013)). This burden must be satisfied
       with evidence, not speculation or conjecture. Edwards v. State, 

 (Miss. 1985); Sisk v. State, 

 (Miss. 1974). “Should
       the facts and inferences . . . ‘point in favor of the defendant on any element of
       the offense with sufficient force that reasonable men could not have found
       beyond a reasonable doubt that the defendant was guilty,’ the proper remedy
       is for the appellate court to reverse and render.” Haynes, 

       (internal quotation marks omitted) (quoting Brown v. State, 

 (Miss. 2007)).

(Emphasis added).

¶15.   As stated above, we must consider as true all evidence consistent with Barfield’s guilt,

and the State must be given the benefit of all reasonable inferences that can be drawn from

the evidence. Considering Thompson’s testimony in the light most favorable to the verdict,



                                              7
Barfield knew that Kelly had murdered Houston and that he had put Houston’s body in a

freezer. When Kelly showed up at the residence of Thompson and Barfield with Houston’s

body in a freezer on the back of his truck, they were all involved in a discussion about what

to do with the body. While it may not have been Barfield’s idea to put the body in the pond,

he deliberately associated himself with the crime by walking with Barfield and Kelly, every

step of the way, as the body was carried to and placed in the pond. Thompson testified that

when they left the house area with the body on the forklift, they all knew they were going to

put the body in the pond and all three were participating in the process. When the freezer did

not sink, all three were involved in a discussion about what to do next. Although Thompson

and Barfield would not touch the body, they were with Kelly as he gathered the items he

needed to submerge the body in the pond. Thompson and Barfield were together when they

carried Kelly back to the pond and dropped him off so he could conceal the body. Thereafter,

Thompson and Barfield watched the pond to see if the body floated up. When Barfield saw

a body part sticking out of the water, he told Thompson, who called Kelly to come fix the

situation. When questioned by law enforcement, Barfield concealed what he knew about the

hidden body.

¶16.   The dissent agrees with Barfield that the evidence was legally insufficient to support

his conviction for accessory after the fact to murder. The dissent posits that “one may be

convicted of a felony from minimal action, but not from a complete lack of action.” The

dissent argues that the evidence in this case proves only that Barfield was present when

Houston’s body was hidden in the pond. We disagree.



                                              8
¶17.   The State’s theory of the case was that Barfield was guilty of “aiding and abetting”

Thompson and Kelly in concealing Houston’s body to assist Kelly in avoiding arrest and

prosecution for the murder of Houston. In Pointer v. State, 

 (¶12) (Miss.

Ct. App. 2016), this Court explained:

       To be convicted as an accessory before the fact—i.e., as an aider and
       abettor—a person must have done something to “incite, encourage, or assist
       the actual perpetrator in the commission of the crime.” Vaughn v. State, 

 (¶11) (Miss. 1998) (quoting Malone v. State, 

 (Miss.1986)). This can be done through “acts, words, signs, motions,
       or any conduct which unmistakably evinces a design to encourage, incite
       or approve of the crime, or even by being present, with the intention of
       giving assistance, if necessary, though such assistance may not be called
       into requisition.” McDowell v. State, 

 (¶21) (Miss. Ct.
       App. 2007) (quoting Swinford v. State, 

 (Miss.1995)).
       However, “the mere presence of a person is not sufficient even though such
       person might have approved of the crime.” 

 (quoting Griffin v. State, 

 (Miss.1974)).

(Emphasis added). As noted above, the evidence shows that Barfield was included in all the

conversations, over several hours, leading up to the effort to conceal Houston’s body in the

pond. He was present with Thompson and Kelly at several locations as they worked toward

concealing the body. While Barfield may not have touched the body and may not have

gotten into the pond, the jury could reasonably infer that he did not stand mute during all the

conversations and activities. He kept himself in a position to help in other ways should he

have been called upon. Barfield’s intent to assist can be inferred by his continued presence

throughout the effort to conceal the body, rather than staying at the house when the body

was being carried to the pond.

¶18.   After the body was placed in the pond, it was Barfield who alerted Thompson that



                                              9
a portion of the body could be seen in the pond. This allowed Thompson to call Kelly, who

apparently was able to re-submerge the body. Additionally, when law enforcement

questioned him after the body was discovered, Barfield failed to disclose what he knew

about how the body came to be in the pond. The jury could infer that, by his silence, Barfield

was protecting himself, as well as Kelly. In Gray v. State, 

, 198 (¶12) (Miss.

Ct. App. 2021), we acknowledged:

       We note that a jury may also infer participation based on one's presence,
       companionship, and conduct before and after the offense. Hubbard v. State,
       

 (Miss. 1966).

If we accept, as we must, that all credible evidence consistent with Barfield’s guilt is true,

and “the State is given the benefit of all favorable inferences that may be reasonably drawn

from the evidence,” we find that the evidence is legally sufficient for a jury to find Barfield

guilty beyond a reasonable doubt.

       II.    Did the trial court commit plain error by giving an erroneous
              “aiding and abetting” instruction?

¶19.   Barfield argues that it was plain error for the trial judge not to instruct the jury that it

must first find beyond a reasonable doubt that Barfield “had entered into a common scheme,

design and joint enterprise to assist in the concealment of Houston’s body.” Barfield argues

on appeal that before the jury could “utilize” Jury Instruction S-3, they should have been

required to find that there was a plan. He argues that the jury was not instructed that they

must first find that he and Thompson “formed a common design to aid and assist Kelly by

concealing Houston’s body in the pond.” He argues again, as he did in the first issue that

there was no proof that he did anything.


                                               10
¶20.   Instruction S-3 was given by the trial judge without objection by Barfield. In fact,

Barfield’s trial counsel specifically stated that he had no objection to the instruction. On

appeal, recognizing that no contemporaneous objection was made at trial, Barfield asks this

Court to consider this issue under a plain error analysis. Concerning the plain error doctrine,

this Court stated in Blocton v. State, 

, 393 (¶33) (Miss. Ct. App. 2022):

       Although no objection was made to Investigator Meyers’ testimony at trial, we
       may still review the circuit court’s decision under the plain-error doctrine. See
       Mitchell v. State, 

 (¶8) (Miss. Ct. App. 2001). “Under the
       plain-error doctrine, we can recognize obvious error which was not properly
       raised by the defendant . . . and which affects a defendant’s ‘fundamental,
       substantive right.’” Conners v. State, 

 (¶15) (Miss. 2012)
       (quoting Smith v. State, 

 (¶10) (Miss. 2008)). “For the
       plain-error [rule] to apply, there must have been an error that resulted in a
       manifest miscarriage of justice or “seriously affect[s] the fairness, integrity or
       public reputation of judicial proceedings.” 

 (quoting Brown v. State, 

 (¶21) (Miss. 2008)).

¶21.   Instruction S-3 read as follows:

       The Court instructs the Jury that the guilt of a defendant in a criminal case may
       be established without proof that the defendant personally did every act
       constituting the offense alleged. The law recognizes that ordinarily, anything
       a person can do for himself or herself may also be accomplished by that person
       through the direction of another person as his or her agent, by acting in concert
       with, or under the direction of, another person or persons in joint effort or
       enterprise.

       If another person is acting under the direction of the defendant or if the
       defendant joins another person and performs acts with the intent to commit a
       crime, then the law holds the defendant responsible for the acts and conduct
       of such other persons just as though the defendant had committed the acts or
       engaged in such conduct.

       Before any defendant may be held criminally responsible for the acts of others
       it is necessary that the accused deliberately associate himself or herself in some
       way with the crime and participate in it with the intent to bring about the
       crime.

                                              11
       Of course, mere presence at the scene of the crime and knowledge that the
       crime is being committed are not sufficient to establish that the defendant
       either directed or aided and abetted the crime unless you find beyond a
       reasonable doubt that the defendant was a participant and not merely a
       knowing spectator.

       In other words, you may not find any defendant guilty unless you find beyond
       a reasonable doubt that every element of the offense as defined in these
       instructions was committed by some person or persons, and that the defendant
       voluntarily participated in its commission with the intent to violate the law.

This identical instruction was adopted by Mississippi Supreme Court for use in aiding and

abetting cases. See Milano v. State, 

 (¶¶21-22) (Miss. 2001).

¶22.   Barfield and Thompson were jointly indicted in this matter as accessories after the fact

to murder. The indictment alleges that Barfield and Thompson assisted Kelly to avoid arrest

and conceal evidence at a time when they knew Kelly had committed murder. The indictment

further alleges that they did this by assisting Kelly in “concealing and disposing of the

deceased body of Demarquis Houston.” The proof shows that Barfield, Thompson and Kelly

were all together for a significant period of time on the evening in question. There was

testimony of discussions between the three men concerning the disposition of Houston’s

body as well as testimony that all three were together when Houston’s body was carried from

Kelly’s truck and was first placed in the pond. When the freezer would not stay submerged,

all three were together when Kelly obtained the material he ultimately used to conceal the

body in the pond. There is also testimony that when Barfield saw a body part above the water

that he told Thompson, who then called Kelly to fix the situation. While no one person took

all the acts necessary to conceal the body and keep it concealed, the law provides that all who

knowingly participated in the endeavor of concealing the body are criminally liable. While

                                              12
certainly there was conflicting testimony over the extent of Barfield’s involvement, that was

an issue for the jury to resolve. However, the trial judge committed no error in giving Jury

Instruction S-3.

       III.   Did the trial judge err by failing to properly instruct the jury
              concerning accomplice testimony?

¶23.   Barfield argues that this Court should find that the trial court committed plain error

by its instruction concerning accomplice testimony. Barfield contends that the jury should

have been instructed that only the “uncorroborated” portions of Thompson’s testimony be

viewed with great caution and suspicion. Instead, the instruction given by the trial court

required the jury to view all of Thompson’s testimony in that manner. Because Barfield’s

testimony corroborated favorable portions of Thompson’s testimony, he argues that the trial

court erred by instructing the jury to view all of Thompson’s testimony in the same manner.

¶24.   This issue was resolved by the Mississippi Supreme Court in Jones v. State, 

 (¶36) (Miss. 2016):

       We hold that the trial court erred in instructing the jury that, in order to
       disregard the accomplice’s testimony, first it had to find the testimony to be
       uncorroborated and, second that it had to find the accomplice testimony to be
       unreasonable, self-contradictory, or substantially impeached. We clarify that
       those standards are legal determinations for the trial court to make in
       determining, first, whether to grant the cautionary accomplice instruction and,
       second, whether to grant or deny a motion for a directed verdict and/or a
       motion for a judgment notwithstanding the verdict.

(Emphasis added). The court then went further and mandated the form of instruction to be

given when the trial court finds critical portions of an accomplice’s testimony to be

uncorroborated:



                                             13
       The standards having been clarified, we approve the use of the following
       accomplice jury instruction:

              During the course of his testimony in this trial, the witness John
              Doe claimed to have participated with the defendant in [the
              crime for which the defendant is on trial]. Doe is an admitted
              accomplice, and, as such, the jury should consider his testimony
              with great caution and suspicion. The jury is the sole judge of
              the credibility and the believability of all the witnesses, and it is
              for the jury to decide how much weight and worth, if any, to
              give the testimony of the witnesses, including Doe. As you
              consider Doe’s testimony, you may accept such portions, if any,
              that you deem credible, and reject such portions, if any, that you
              do not deem worthy of belief.

       The above instruction is to be given in future cases upon the trial court’s
       determination that the accomplice’s testimony was uncorroborated. See
       Williams [v. State], 32 So. 3d [486,] 491 [(Miss. 2010)].

Jones, 203 So. 3d at 612 (¶35) (emphasis added).

¶25.   In the present case, the defense requested an accomplice instruction, which the trial

court refused because the instruction did not comply with the instruction in Jones. The trial

judge asked both sides for authority that addressed the situation where part of the accomplice

testimony is corroborated and part is not. Neither side produced a case exactly on point. In

any event, the trial court found that “the part that is uncorroborated is really the heart of the

case.” Having made the “legal determination” that was required, the trial judge advised the

defense that if Barfield would submit an instruction that conforms with Jones, it would be

given. The defense complied and the trial court gave Jury Instruction D-8A, which is

identical to the instruction that the supreme court mandated in Jones. The trial court did not

err by giving this instruction.

       IV.    Did the trial court err by its refusal to instruct the jury that

                                               14
               Barfield had no duty to reveal to the police that he knew where
               Houston’s body was concealed?

¶26.   Barfield contends that the trial court erred by refusing the proposed defense

instructions D-10 and D-11. These instructions, Barfield contends, were necessary to show

that he had no duty to report that Kelly and Thompson hid a dead body in the pond. There

was an extensive discussion of these instructions in chambers. The trial judge pointed out

that Barfield, charged with being an accessory after the fact of murder, was alleged to have

“assisted James Walter Kelly to avoid arrest and conceal evidence.” The judge discussed that

“conceal may mean hide it under this table or in a pond, but it also means not to tell, keep it

secret.” The trial judge acknowledged that if you simply see a crime committed and do not

call the police, you have not committed a crime. The State argued that that concept was

covered in other instructions. Barfield’s counsel agreed that while one of the State’s

instructions informed the jury that “mere presence alone is not a crime,” it was still important

for the jury to know that Barfield had no duty to report it to law enforcement. The trial court

ruled that the relevant issue was adequately covered by other instructions.

¶27.   Barfield cites Hye v. State, 

 (¶28) (Miss. 2015), for the

proposition that the failure to report a crime is not a criminal offense because “Mississippi

does not recognize misprision of felonies.” However, he does not cite a case where such an

instruction has been given, especially in an accessory-after-the-fact case.

¶28.   In Sherron v. State, 

 (Miss. Ct. App. 2006), this Court dealt with a

similar issue. In that case, the defendant, the victim’s mother, was charged as an accessory

after the fact to her then-husband’s statutory rape of his stepdaughter. 

 (¶1). After the


                                               15
victim learned that she was pregnant, she obtained an abortion with the permission and

assistance of her mother. 

 The minor child’s mother and the stepfather drove her to have

the abortion. 

 (¶10). Two months later, other relatives took the victim to the police

to report the offense. 

 at (¶12).

¶29.   The mother was charged as an accessory after the fact because it was alleged that she

concealed her husband’s crime when she took her child out of state to have an abortion. 

 (¶37). The State had to prove that the mother did this with the intent to enable her

husband “to escape or avoid arrest, trial, conviction or punishment” after he committed

statutory rape. 

 at (¶38). She argued that she did this in support of her minor daughter and

that she had no duty to make a report to law enforcement. She requested a jury instruction

to inform the jury that she had no duty to report the crime committed against her daughter.

 (¶49). The instruction was denied by the trial court. 

 In considering this issue on

appeal, this Court held:

       If the trial judge had instructed the jury that it is not illegal to neglect to report
       the fact that a husband committed statutory rape against his daughter, the jury
       could have taken that instruction to mean that it is, likewise, not illegal to
       conceal the rape. The instruction would have tended to cause jurors to believe
       that the substance of the prosecution’s allegation was a legal act. The question
       here is whether the instruction would tend in its emphasis to mislead the jurors
       on the actual legal questions before them. It was reasonable to conclude that
       it would.

 at (¶51).1

¶30.   The trial judge was also concerned that the instruction could be confusing to the jury.

       1
         This Court noted that “[a]dditionally, and more importantly,” there are statutory
obligations to report child sexual abuse. 

 at (¶52). There was no statutory-reporting
requirement identified to be applicable in the present case.

                                                16
He also believed the point was covered by other instructions. Again, Jury Instruction S-3

informed the jury, in part, as follows:

       Of course, mere presence at the scene of the crime and knowledge that the
       crime is being committed are not sufficient to establish that the defendant
       either directed or aided and abetted the crime unless you find beyond a
       reasonable doubt that the defendant was a participant and not merely a
       knowing spectator.

(Emphasis added). In Pulliam v. State, 

, 1193 (¶27) (Miss. Ct. App. 2020),

this Court stated:

       We review the decision to give or refuse a jury instruction for abuse of
       discretion. Newell [v. State], 49 So. 3d [66,] 73 (¶20) [(Miss. 2010)]. “The jury
       instructions are to be read as a whole, with no one instruction to be read alone
       or taken out of context.” Blanden v. State, 

, 1210 (¶21) (Miss.
       Ct. App. 2018) (quoting Watkins v. State, 

 (¶16) (Miss.
       2012)). “No reversible error exists if the instructions fairly, though not
       perfectly, announce the law of the case and create no injustice.” Ambrose v.
       State, 

 (¶236) (Miss. 2018) (quoting Ronk v. State, 

 (¶20) (Miss. 2015)).

When all the instructions are read together, we find that the jury was adequately instructed

on this issue. This assignment of error is not persuasive.

       V.     Did the trial court err by instructing the jury as to the definitions
              of “conceal” and “participate”?

¶31.   Barfield contends that the trial court erred by instructing the jury as to the definitions

of “conceal,” “assist,” and “participate.” At trial Barfield objected to the definition of

“conceal” on the basis that it was misleading. He argues on appeal that this court should find

that the trial court committed plain error by giving Instruction S-4. He seems to argue that

giving the instruction was error based on the arguments he advances in Parts II and IV above.

Because Barfield offered no meaningful argument as to any specific problem with the

                                              17
definitions, he has not shown how he was adversely affected or prejudiced by the definitions.

Because he has not cited any relevant authority to support his contention, we find this issue

is procedurally barred. See Walker v. State, 

, 365 (¶101) (Miss. Ct. App.

2021); M.R.A.P. 28(a)(7).

       VI.    Did the trial court err by allowing improper redirect and rebuttal
              testimony?

¶32.   Barfield argues that the trial court allowed the State to improperly question Thompson

on re-direct examination as to matters that the State had covered in its direct examination and

were outside the scope of what was covered in cross-examination. Barfield objected on that

basis at trial and the trial judge overruled the objection stating, “You asked him about Mr.

Barfield’s participation – your objection is overruled.”

¶33.   Concerning the scope of redirect examination, the court explained in Bernard v. State,

, 313 (¶47) (Miss. 2019):

       “The scope of re-direct examination, while largely within the discretion of the
       trial court, is limited to matters brought out during cross-examination.” Conley
       v. State, 

 (Miss. 2001) (quoting Blue v. State, 

 (Miss. 1996), overruled on other grounds by King v. State, 

 (Miss. 2001)). Generally, if a witness’s credibility on a matter is
       questioned during cross-examination, opposing counsel may address that same
       matter on redirect. Bell v. State, 

 (Miss. 1998); White
       v. State, 

 (Miss. Ct. App. 2008).

In the present case, Barfield’s cross-examination of Thompson covered many of the same

facts that were brought out during the State’s direct examination. On direct examination,

Thompson testified that all three men were involved in the discussions about what to do with

the body. They all went together to the pond knowing they were going to place Houston’s



                                              18
body in the pond. When the freezer did not sink, they all went together to Thompson’s shop

where Kelly obtained the materials he needed to submerge the body. Barfield then went with

Thompson to drop Kelly off at the pond so that Kelly could sink the body in the pond.

Barfield later saw a portion of the body sticking out of the pond. He told Thompson who then

called Kelly to come take care of the situation.

¶34.   The leading questions asked on cross-examination covered many of these same

actions but were asked in a manner to minimize Barfield’s participation in placing Houston’s

body in the pond. The trial court correctly ruled that questions concerning Barfield’s

participation were proper on redirect. When the State asked Thompson whether Barfield and

Kelly continued to be good friends after the incident, the defense objected that it was outside

the scope of cross-examination and the trial court sustained the objection. We find that the

trial court properly limited the scope of the redirect examination of Thompson to matters

covered during cross-examination.

¶35.   After Barfield testified in his own defense, the State re-called Thompson in rebuttal.

Barfield did not object to Thompson being recalled to the stand. However, during the State’s

direct examination of Thompson in rebuttal, Barfield objected that “this was covered under

direct examination in the State’s case-in-chief.” The State responded to the objection by

stating “Yes sir, Your Honor, it was. It is proper rebuttal testimony in that it’s been refuted

in the Defense’s case in chief . . . .” The trial judge indicated that he understood and

overruled the objection.

¶36.   Thompson’s rebuttal testimony was brief and did not bring up new matters that were



                                              19
not covered in the State’s case-in-chief. However, the testimony was in direct response to

Barfield’s testimony concerning the events at issue and was offered to rebut Barfield’s

testimony. See Willis v. State, 

, 1006 (¶18) (Miss. 2020) (“The State is

permitted to present rebuttal testimony . . . to ‘explain, repel, counteract or disprove’

evidence offered by the defense.” (quoting Williams v. State, 

 (Miss.

1989))).

¶37.   This is not a situation where new substantive evidence was admitted in rebuttal. It is

not a situation where Barfield was not prepared to respond to such testimony. Barfield had

the opportunity to cross-examine Thompson and did not seek surrebuttal. The trial judge did

not abuse his discretion by allowing Thompson’s rebuttal testimony.

       VII.   Did the trial court err by allowing the testimony of Broxton and
              Thompson that they had pled guilty to charges of manslaughter
              and accessory after the fact to murder, respectively?

¶38.   While Barfield recognizes that there was no objection to their testimony at trial,

Barfield contends that the trial court committed plain error by allowing the State’s witnesses,

Gilmer, Broxton, and Thompson, to testify that they had pled guilty to manslaughter (Broxton

and Gilmer) and accessory after the fact to murder (Thompson). Barfield had the opportunity

to cross-examine each of these witnesses. In considering a similar argument, this Court held

in Harper v. State, 

 (¶¶25-26) (Miss. Ct. App. 2012):

       A co-defendant’s guilty plea or conviction is generally inadmissible “because
       such plea of guilty or conviction is no evidence of the guilt of the party being
       tried.” Buckley v. State, 

 (Miss. 1969). However, further
       analysis is required to determine if plain error occurred. “[A] party who fails
       to make a contemporaneous objection at trial must rely on plain error to raise
       the issue on appeal, because otherwise it is procedurally barred.” Parker v.

                                              20
       State, 

 (¶14) (Miss. 2010). The plain-error doctrine
       permits the appellate court to review an “obvious error which was not
       properly raised by the defendant on appeal, and which affects a defendant’s
       ‘fundamental, substantive right.’” Smith v. State, 

 (¶10)
       (Miss. 2008).

       We cannot find Debra’s statement was plain error. Debra testified at trial and
       was available to be cross-examined on her guilty plea. This Court has
       suggested that a defendant’s opportunity to question a co-indictee regarding
       his or her guilty plea weighs against a finding of error regarding the admission
       of evidence regarding those same guilty pleas. Palm v. State, 

 (¶4) (Miss. Ct. App.1998). In White v. State, 

 (Miss.
       1993), the Mississippi Supreme Court found no reversible error where a
       co-indictee testified about his involvement in the crime and evidence of the
       same co-indictee’s guilty plea was introduced at trial. Further, Debra pleaded
       guilty rather than being found guilty by a jury. Evidence of a guilty plea does
       not carry the same danger of prejudice as evidence of a jury verdict of guilt.
       Clemons v. State, 

 (¶29) (Miss. 1999).

¶39.   Just as in Harper, each of the witnesses here had pled guilty to their part in the death

of Houston. The testimony of Broxton and Gilmer was necessary to prove that Houston was

murdered, and neither offered any testimony that inculpated Barfield. In any event, just as

in Harper, we find this issue is procedurally barred because there was no objection at trial.

Because we find that the admission of this testimony did not affect Barfield’s fundamental

or substantive rights or cause a manifest miscarriage of justice, the claim of plain error fails.

       VIII. Was the verdict against the overwhelming weight of the evidence?

¶40.   Under this assignment of error, Barfield maintains that an unconscionable injustice

has occurred in this case. Without restating any particular argument, he simply states his

“prior discussions show [that] the evidence supporting a verdict of guilty was singularly

weak and not obtained through a proof of the elements that are required.” We have already

addressed Barfield’s contention that the evidence was legally insufficient. We will now


                                               21
address his claim that the verdict was against the overwhelming weight of the evidence.

¶41.   Our standard of review for challenges to the weight of the evidence is set forth in

Wayne v. State, 

, 715 (¶39) (Miss. Ct. App. 2022):

       When reviewing a challenge to the weight of the evidence, the Court will
       disturb a jury verdict only when it is so contrary to the overwhelming weight
       of the evidence that to allow it to stand would sanction an unconscionable
       injustice.” Jones [v. State], 154 So. 3d [872,] 880 [(¶24) (Miss. 2014)]
       (internal quotation mark omitted). In making a determination on this issue,
       “[w]e review the evidence in the light most favorable to the verdict . . . and
       review the trial court’s denial of a motion for a new trial under an
       abuse-of-discretion standard.” Wilson [v. State], 276 So. 3d [1241,] 1260
       [(¶48) (Miss. Ct. App. 2018)] (citation omitted). In so doing, we bear in mind
       that “[w]hen evidence or testimony conflicts, the jury is the sole judge of the
       weight and worth of evidence and witness credibility.” Williams v. State, 

, 160 (¶17) (Miss. 2019).

¶42. Throughout his brief, Barfield maintains that his conviction was improper because he

was a mere spectator and that he did nothing to assist anyone in concealing Houston’s body.

On direct examination at trial, Barfield does not contradict all of Thompson’s testimony, but

his testimony does conflict with Thompson in several significant areas. Barfield denied that

Kelly told him and Thompson about the kidnapping and murder of Houston the first time

Kelly came to their residence. Instead, he testified that Thompson and Kelly drove off

together. Barfield denied that he and Thompson discussed the “crazy situation” Kelly told

about Houston’s murder. When Kelly came back that night with a freezer on the back of his

truck, Barfield testified that he knew nothing about a body being in the freezer. He said there

was no discussion at that time about what to do with the freezer, that Thompson just went

and got the forklift. Barfield said Kelly and Thompson got the freezer off the truck and

drilled holes in the freezer while he watched. Barfield admits that he walked behind the

                                              22
forklift while Thompson drove it, with the freezer, to the pond. He watched as Thompson and

Kelly placed the freezer in the pond, but he did nothing to help them. He continued to watch

as Thompson and Kelly got into the pond and tried to put their weight on it to get it to sink.

He described that when they brought it back to the bank that they were upset that it would

not sink. Barfield denied that there was any conversation about what to do next. According

to Barfield, Thompson took the forklift back across the street, and, in Barfield’s version of

events, when Thompson came back with the Jeep, only Thompson and Kelly went to the shop

together. Barfield said he went back to the house. Barfield testified that he never went back

to the pond, that he could not see the pond from the residence and that he was not keeping

a watch on the pond. Finally, Barfield denied telling Thompson that he saw something

floating in the pond and never had a conversation with Thompson or Kelly about seeing

something in the pond.

¶43.   On cross-examination, Barfield denied that anyone ever told him that there was a body

in the freezer. He only “suspected” something was not right. He thought it was suspicious

that they drilled holes in the freezer. He never asked them what they were doing as he

watched. He testified that he only “suspected” there was a body in the freezer because there

was a freezer on the back of the truck, at night, and they were drilling holes in it. But still,

at that point, Barfield maintained that neither Thompson nor Kelly told him what was going

on. He never heard either of them say there was a body in the freezer. He never heard anyone

say that Kelly had killed Houston. When Kelly opened the freezer before putting it into the

pond, a terrible smell came out, and, according to Barfield, that is when he first knew there



                                              23
was a body in the freezer. According to Barfield’s testimony, when Thompson and Kelly

were trying to sink the freezer in the pond, he knew there was a body in it. Again, Barfield

testified that he “never again laid eyes” on that pond after that night. Less than a month later,

Barfield moved out of state. When Barfield was interviewed by the Sheriff’s department after

the body was found, he did not tell them what he knew about the body being placed into the

pond. He said it was because “they didn’t ask me about it.”

¶44.   It was for the jury to resolve the conflicts in the testimony of Barfield and Thompson.

In Eubanks v. State, 

, 911(¶48) (Miss. 2022), the supreme court explained:

       [W]hen the evidence is conflicting, the jury will be the sole judge of the
       credibility of witnesses and the weight and worth of their testimony. This wise
       rule applies with equal force to the state’s witnesses and the appellant’s
       witnesses, including the appellant himself. We have repeatedly held that in a
       criminal prosecution the jury may accept the testimony of some witnesses and
       reject that of others, and that they may accept in part and reject in part the
       evidence on behalf of the state or on behalf of the accused. In other words, the
       credibility of witnesses is not for the reviewing court.

(Citations omitted). The jury heard the evidence, was properly instructed as to the law, and

returned a verdict of guilty of accessory after the fact of murder. When viewing the evidence

in the light most favorable to the verdict, we do not find that allowing this jury’s verdict to

stand would sanction an unconscionable injustice.

                                       CONCLUSION

¶45.   We find that the assignments of error raised by Barfield present no reversible error

and that his conviction and sentence should be affirmed.

¶46.   AFFIRMED.

       BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, LAWRENCE

                                               24
AND SMITH, JJ., CONCUR. McDONALD, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION. McCARTY, J., DISSENTS WITH SEPARATE WRITTEN
OPINION, JOINED BY WESTBROOKS AND McDONALD, JJ.

       McCARTY, J., DISSENTING:

¶47.   Just being present at the scene of a crime—without more—is not a crime. And that

is all Justus Barfield ever did here. Since this alone cannot meet the burden of proof required

for a conviction of accessory after the fact, I respectfully dissent.

¶48.   The proof in this case is not in dispute. James Kelly murdered a man. In an effort to

hide the body, he enlisted his friend Caleb Thompson. At this time, Justus Barfield was

Thompson’s roommate. While Kelly told Thompson the details of the murder, Justus sat by.

Kelly then told Thompson he might have somewhere to hide the body. Thompson instead

offered, “Well, my pond’s across the road, and we can do this,” referring to hiding the body

in the pond.

¶49.   Later that same night, Kelly went back to Thompson’s house. At that time, Justus sat

in his bedroom “playing Fortnite or Madden” on his Xbox. Kelly and Thompson knocked

on his door and told him to “come outside.”

¶50.   While still in his pajamas, Justus walked outside and noticed there was a deep freezer

“on the back of [Kelly’s] truck.” Thompson “walked up [to the truck] and let the tailgate

down.” After Kelly and Thompson realized they needed more help with the heavy lifting,

Thompson went to “get his loader.”

¶51.   Justus stayed behind at the house. He would later testify he was not even “sure what

a loader was.” It was not until Thompson came back that he “realized it was a forklift.”



                                              25
Kelly then helped Thompson load the deep freezer onto the forks of the forklift. After

loading it, the duo began drilling holes into the deep freezer.

¶52.   Meanwhile, in the words of Thompson, Justus did “nothing.” He simply stood “five

to ten feet” away from the two men as they worked.

¶53.   After the freezer was loaded and the holes were drilled, the two men started the

journey to the pond, with Thompson operating the forklift. Justus “just walk[ed] along with”

the two men, never expressing any desire to help. Nor did the men give any commands or

orders to him to do anything or to help.

¶54.   Once they got to the pond, Kelly and Thompson together pushed the forklift to the

edge of the pond. Having never made any hand gestures or even guided the loader, Barfield

just “stood there and observed” the duo as they worked. The two men did it all on their own.

Justus still did nothing.

¶55.   Thompson waded into the water and waited for Kelly to push the deep freezer in.

Then Kelly got in and “pushed [the freezer] farther out.” While the two men were in the

water, Justus stood on the banks of the pond. Since it was nighttime, he “couldn’t see them,

but [he] could hear . . . the water splashing.” He never got into the water. In fact, according

to Thompson, Justus even told him he “wouldn’t get into the water.”

¶56.   After working hard to submerge the freezer, the two men realized it just wouldn’t

sink. “So they [started] to come back to the bank with the freezer, like one of them pushing

and one of them pulling” it. Justus didn’t help, and the two men didn’t ask him to.

¶57.   Angry that their initial plan failed, Thompson took Kelly to get extra tools to attempt



                                              26
to sink the freezer. Thompson “drove his loader back to the house.” Once he made it home,

he “got his Jeep” and took Kelly across the street to his “new shop” to get the extra tools.

Kelly got tarps and straps. Like every other time, Justus didn’t touch the tools or help.

¶58.   Afterward, Thompson and Justus went back to the house. Kelly stayed with the

freezer; he tried to hide it again later that night.

¶59.   Days later, Justus “noticed that something had floated up” in the pond. He talked to

Thompson about what he saw. Justus didn’t take any action or gave any advice about the

freezer in the pond. But Thompson did. He called Kelly and told him that he “needed to

come back because it was obvious that something was out there.” Justus said absolutely

nothing to Kelly, nor did he assist him in any way.

¶60.   Even though he never acted in any way, Justus was arrested and ultimately convicted

as an accessory after the fact to murder. For walking alongside two men as they committed

a crime, he was sentenced to twenty years with ten years to serve.

¶61.   Our caselaw is well established regarding the sufficiency of evidence. “[T]he 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.” Carpenter v. State, 

, 1275 (¶26) (Miss. Ct. App. 2021) (emphasis

added). “When we address a challenge to the sufficiency of the evidence, all credible

evidence of guilt must be taken as true, and the State is entitled to all reasonable inferences

that may be drawn therefrom.” Id.

¶62.   Furthermore, “[t]his Court must reverse and render if the facts and inferences so



                                                27
considered point in favor of the defendant on any element of the offense with sufficient force

that reasonable men could not have found beyond a reasonable doubt that the defendant was

guilty.” Washington v. State, 

, 438 (¶27) (Miss. Ct. App. 2020) (emphasis

added).

¶63.   Justus was charged under Mississippi Code Annotated section 97-1-5 (Rev. 2014).

For the jury to find him guilty as an accessory after the fact to murder, the State had to prove

beyond a reasonable doubt that “(1) a completed felony has been committed; (2) . . . the

accused concealed, received, relieved, aided or assisted a felon, knowing that such person

had committed a felony; and (3) . . . such aid or assistance was rendered with intent to enable

such felon to escape or avoid arrest, trial, conviction or punishment after the commission of

such felony.” Thompson v. State, 

, 1233-34 (¶7) (Miss. Ct. App. 2020)

(emphasis added).

¶64.   Of those three elements, the only one the State proved was the first—that someone

was murdered. But there was no proof Justus aided or assisted either of the two men or that

he provided any assistance to them to help them avoid arrest or punishment. Indeed, the

testimony was that he had even declined to help wade into the pond to help push the freezer

farther out.

¶65.   Nor did the testimony of one of the two men who did commit a felony support a guilty

verdict. During cross-examination, Thompson testified Justus never actually helped. And

this testimony remained unchanged throughout the entire trial.

       Q.      And Mr. Barfield did not touch the freezer at all; correct?



                                              28
       A.     Correct.

       ....

       Q.     And he didn’t pick the pond as the location to put a body in; correct?

       A.     Correct.

       Q.     He did not choose the tarp or the straps; correct?

       A.     Correct.

       ....

       Q.     And, in fact, your testimony is you called - - after some period of time,
              after this night, you’re the one that called and talked to [Kelly] to let
              him know he needed to come back; correct?

       A.     Correct.

       ....

       Q.     So whatever conversation that was had that day, Justus Barfield wasn’t
              conspiring with James Walker Kelly and yourself - -

       A.     To put a body in the pond, no.

(Emphasis added).

¶66.   Furthermore, Thompson testified under oath Justus didn’t even help in the one way

someone not physically helping could—by keeping a lookout.

       Q.     Justus Barfield wasn’t assigned as a lookout to make sure someone
              wasn’t - - was seen out of that house, was he?

       A.     No.

¶67.   The majority affirms Barfield’s conviction because he “deliberately associated”

himself with the crime by “walking” with the two men. But walking is not a crime. The



                                             29
Legislature requires more proof to meet the elements of this crime. Barfield’s presence alone

does not meet the burden he “concealed, received, relieved, aided or assisted” Kelly or

Thompson in hiding the body—especially when all of the evidence says he did nothing at all.

Thompson, 302 So. 3d at 1233-34 (¶7).

¶68.   In sum, there was absolutely no evidence that it was Barfield’s plan to hide the freezer

in the pond. There is no evidence he assisted in transporting the freezer to the pond. There

is also no evidence he assisted in placing the deep freezer into the pond. There is no

evidence he got into the water or guided the two men in their efforts to sink the freezer.

Furthermore, there is no evidence he stayed in contact with Kelly—the man ultimately

responsible for killing a man and hiding his body.

¶69.   All we have is undisputed testimony from both Thompson and Justus that he did

nothing. Even after the State attempted to elicit testimony to establish Barfield helped the

two men, Thompson testified his opinion “doesn’t change.” He still testified Justus did

nothing to help dispose or conceal the body. Indeed, Justus even refused on one occasion to

help—telling Thompson he would not get into the pond to help. At that point, he couldn’t

even see what was going on, since it was dark.

¶70.   Without evidence to support Barfield’s conviction, “reasonable men could not have

found beyond a reasonable doubt the defendant was guilty.” Washington, 298 So. 3d at 438

(¶27). When presented with a defendant who has neither assisted nor aided in the

commission of a felony, the only path is to reverse. One may be convicted of a felony from

minimal action, but not from a complete lack of action.



                                             30
¶71.   Because all three elements of accessory after the fact were not proved beyond a

reasonable doubt, I respectfully dissent.

       WESTBROOKS AND McDONALD, JJ., JOIN THIS OPINION.




                                            31