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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 95-KA-01335 COA LUCAS ROMERO JONES A/K/A LUCAS ROMARO JONES A/K/A MELVIN JONES v. STATE OF MISSISSIPPI APPELLANT

APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: DISTRICT ATTORNEY: NATURE OF THE CASE: TRIAL COURT DISPOSITION: 03/09/95 HON. JERRY OWEN TERRY, SR. CIRCUIT COURT OF HARRISON COUNTY THOMAS A. PRITCHARD OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS RUFUS ALLDREDGE CRIMINAL - FELONY CONVICTION OF CT.1 BURGLARY, CT.II AGGRAVATED ASSAULT AND SENTENCES OF FIVE AND SEVENTEEN YEARS TO RUN CONCURRENTLY AND TO BE SERVED IN THE CUSTODY OF MDOC AND TO PAY RESTITUTION IN THE AMOUNT OF $5,000 AFFIRMED - 11/18/97

DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

12/9/97

BEFORE McMILLIN, P.J., KING, AND PAYNE, JJ. PAYNE, J., FOR THE COURT: Lucas Romero Jones was convicted of count I burglary and count II aggravated assault. The trial court sentenced Jones to serve a term of five years for burglary and a term of seventeen years for

aggravated assault in the custody of the Mississippi Department of Corrections with the sentences to run concurrently. Additionally, Jones was ordered to pay $5,000 in restitution. Jones's motion for JNOV or, in the alternative, a new trial was denied. We find that none of Jones's issues on appeal has merit and therefore affirm. FACTS On August 2, 1993, Wade Dickerson, the victim, went to his girlfriend's apartment. Upon arrival, Dickerson noticed that the front door jam was broken, and he smelled marijuana. Shortly thereafter, a black man exited the apartment. Dickerson testified that Jones and another black man then began to chase him and that Jones fired three shots at Dickerson who was struck in his hand, thigh, and head. Dickerson testified that he recognized Jones as the man from whom he purchased a pendant a few days earlier. Dickerson also testified that he picked Jones's picture out of a photo line-up provided by the police. At trial, Dickerson unequivocally identified Jones as the same man who shot him on August 2. Detective Grimes of the Biloxi Police Department corroborated Dickerson's testimony regarding the photo line-up. Detective Grimes testified further that he investigated the scene of the shooting and found several .22 caliber shell casings. At a later date, Grimes arrested Jones who was in possession of a Jennings .22 caliber handgun. The shell casings and the gun were sent to the crime lab for comparison. Steve Byrd, a forensic scientist, testified that the casings and the gun matched. Jones testified in his own behalf. Jones indicated that he did not know Dickerson and that he had never sold any jewelry to Dickerson. Jones testified further that the gun found on his person when he was arrested was a gun that he had purchased on or about August 23, 1993. Jones stated that he had never fired the gun. Jones was subsequently convicted by a jury for burglary and aggravated assault. Feeling aggrieved, Jones filed this appeal asserting two issues. ANALYSIS I. WHETHER THE TRIAL COURT MATERIALLY ERRED WHEN IT REFUSED TO GRANT DEFENSE INSTRUCTION NUMBER D-8. Instruction D-8 reads as follows: The Court instructs the jury that if you find from the evidence that the defendant, Lucas Romero Jones, did not on August 2, 1994 [sic], break and enter a certain apartment building in Biloxi, Harrison County, Mississippi and leased to Raquel Welch but was apprehended by law enforcement authorities being in possession of such weapon after buying it from another individual several months before the incident, then you shall find the defendant not guilty of burglary. Jones argues that Instruction D-8 was the only instruction that contained his theory of the case and that failure to give the instruction deprived the jury from being instructed as to that theory. Jones contends that none of the other instructions addressed his contention that he had purchased the gun at a point in time and under circumstances unrelated to the burglary. The State argues that Instruction D-8 contradicts Jones's testimony that he bought the gun several

weeks after the shooting. Thus, the State argues, that the trial court correctly refused the instruction as an improper and inaccurate comment on the evidence. The State contends that the jury, through other instructions, was adequately instructed on the law. The standard for reviewing jury instructions is well established. Mississippi law allows the trial judge to instruct the jury upon principles of law applicable to the case either at the request of a party, Miss. Code Ann.

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