IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-KA-01019-COA
KENNETH RAY AINSWORTH A/K/A APPELLANT
KENNETH AINSWORTH A/K/A KENNETH R.
AINSWORTH
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/04/2016
TRIAL JUDGE: HON. LISA P. DODSON
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KAYLYN HAVRILLA MCCLINTON
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF A
CONTROLLED SUBSTANCE WITH
INTENT TO DISTRIBUTE AND
SENTENCED AS A HABITUAL
OFFENDER, WITH AN ENHANCED
PENALTY, TO TWENTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
WITHOUT ELIGIBILITY FOR PAROLE
DISPOSITION: AFFIRMED - 07/25/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1. On May 26, 2015, a grand jury indicted Kenneth Ray Ainsworth for possession of a
controlled substance with intent to distribute in violation of Mississippi Code Annotated
section 41-29-139(a)(1) (Rev. 2013). A jury convicted Ainsworth of the charge on May 4,
2016. Then, on May 11, 2016, the Harrison County Circuit Court, Second Judicial District,
sentenced Ainsworth as a habitual offender under Mississippi Code Annotated section 99-19-
81 (Rev. 2015), with an enhanced penalty under Mississippi Code Annotated section 41-29-
147 (Rev. 2013). The trial court ordered Ainsworth to serve twenty years in the custody of
the Mississippi Department of Corrections without the possibility of parole. On June 27,
2016, the trial court denied Ainsworth’s motion for a new trial or an acquittal
notwithstanding the verdict. Aggrieved by his conviction and sentence and the denial of his
posttrial motion, Ainsworth timely appeals.
¶2. On appeal, Ainsworth raises the following issues: (1) whether the trial court erred in
issuing a supplemental jury instruction; (2) whether the trial court erred in instructing the jury
to continue deliberations in light of the jury’s note indicating unanimous agreement as to a
lesser-included charge; and (3) whether his attorney was ineffective for failing to object to
the supplemental jury instruction.
¶3. Finding no error, we affirm Ainsworth’s conviction and sentence.
FACTS
¶4. Due to the nature of the claims Ainsworth raises, the underlying facts of his
indictment for possession of a controlled substance with intent to distribute are not at issue
in this appeal. Instead, the relevant facts of Ainsworth’s appeal relate to a supplemental jury
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instruction the trial court issued in response to a note from the jury during the jury’s
deliberations.
¶5. Following closing arguments in Ainsworth’s trial, the trial court excused the jury to
begin deliberations. Over two hours later, the trial court received a note from the jury that
read as follows:
Kenneth Ray Ainsworth
Guilty of Possession of a Controlled Substance 2 [grams] - 10 [grams] Cocaine
12 [Jurors] For
Guilty of Possession of a Controlled Substance with Intent to Distribute 2
[grams] - 10 [grams] of Cocaine
11 [Jurors] For[,] 1 Against
There is no agreement on Not Guilty with Intent to Distribute.
¶6. The trial court stated on the record that it was unsure how to handle the jury’s note and
that it had advised the attorneys for both parties of the note’s contents. The trial court
summarized its perceived problem with the jury’s note as follows:
[T]he [jurors are] not unanimous with regard to the charge of possession with
intent[,] but . . . they have gone on to deliberate as to the lesser[-]included
charge.
And it’s my understanding that the jury instruction as drafted[,] and my
understanding generally of the law[,] is that [the jurors] must consider the
actual charge, being possession with intent, and . . . only if they find Mr.
Ainsworth not guilty of that charge are they then to proceed to the
lesser[-]included crime of possession.
Both parties’ attorneys agreed with the court’s summary.
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¶7. The trial court proposed to give a Sharplin1 instruction but opined that the instruction
might not sufficiently “address the issue that appears to be troubling the jury.” The trial court
acknowledged that the jury had not followed proper procedure in voting. After conferring
with the parties’ attorneys, who agreed to the court’s proposed course of action and
supplemental instruction, the trial court further instructed the jury as follows: “So[,] first of
all, I’ll remind you that all of your instructions are to be considered as a whole. I’m going
to give you two additional instructions. So[,] if you will pay attention to these two [in
addition] to the ones you already have.” First, the trial court delivered the Sharplin
instruction. Next, the trial court delivered the following supplemental instruction, which was
an agreed-upon modified version of a previously delivered instruction:
As instructed prior to beginning your deliberations, it is your duty to
accept the law given to you by the [c]ourt, and if the facts and the law warrant
a conviction of the crime of Possession of [a] Controlled Substance with
Intent, then it is your duty to make such finding uninfluenced by your power
to find a lesser offense. This provision is not designed to relieve you from the
performance of an unpleasant duty. It is included to prevent a failure of justice
if the evidence fails to prove the original charge but does justify a verdict for
the lesser crime.
Therefore, if you find the Defendant, Kenneth Ray Ainsworth, not
guilty of Possession of [a] Controlled Substance with Intent, then you shall
proceed with your deliberations to decide whether the State has proved beyond
a reasonable doubt all of the elements of the lesser crime of Possession of [a]
Controlled Substance.[2]
1
See Sharplin v. State, 330 So. 2d 591, 596 (Miss. 1976).
2
The previously delivered instruction omitted “as instructed prior to beginning your
deliberations” and contained at the conclusion of the instruction the elements of the crime
of possession of a controlled substance.
4
The trial court then excused the jury to continue its deliberations, and the jury returned over
an hour later with a verdict that read: “We, the jury[,] find the Defendant, Kenneth Ray
Ainsworth, guilty of Possession of [a] Controlled Substance with Intent [to Distribute].”
¶8. The trial court entered a final judgment and sentenced Ainsworth accordingly.
Ainsworth then filed an unsuccessful motion for a new trial or an acquittal notwithstanding
the verdict. Aggrieved by his conviction and sentence and the denial of his posttrial motion,
Ainsworth appeals.
STANDARD OF REVIEW
¶9. “A trial court has authority to give supplemental instructions to a jury[,] and the
decision to do so is reviewed under an abuse-of-discretion standard.” Hughes v. State, 983
So. 2d 270, 280 (¶41) (Miss. 2008) (citing Mickell v. State, 735 So. 2d 1031, 1033 (¶7)
(Miss. 1999)). As the Mickell court stated:
The appropriate standard of review regarding supplemental jury instructions
. . . “is not whether the circuit judge ruled contrary to what one of us might
have ruled, not whether he was ‘right’ or ‘wrong’ in our view, but whether he
abused his discretion. And, unless the trial [judge] based his decision on an
erroneous view of the law, we are not authorized to reverse for an abuse of
discretion unless we find it was ‘arbitrary and clearly erroneous.’”
Mickell, 735 So. 2d at 1033 (¶7) (quoting Westbrook v. State, 658 So. 2d 847, 851 (Miss.
1995)).
¶10. However, because Ainsworth failed to raise contemporaneous objections at trial to the
supplemental jury instructions, he “must rely on plain error to raise the issue[s] on appeal,
because otherwise [they are] procedurally barred.” Parker v. State, 30 So. 3d 1222, 1227
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(¶14) (Miss. 2010) (citing Walker v. State, 913 So. 2d 198, 216 (¶45) (Miss. 2005)). “Plain
error exists where such error affects the defendant’s substantive/fundamental rights, even
though no objection was made at trial.” Id. “Applying the plain-error rule, the [appellate
court] must determine: (1) whether the trial court deviated from a legal rule; (2) whether the
error is plain, clear, or obvious; and (3) whether the error prejudiced the outcome of the
trial.” Willie v. State, 204 So. 3d 1268, 1279 (¶29) (Miss. 2016) (citing Foster v. State, 148
So. 3d 1012, 1018 (¶20) (Miss. 2014)). “Only if the error ‘resulted in a manifest miscarriage
of justice’ will reversal occur.” Id. (quoting Foster, 148 So. 3d at 1018 (¶20)).
DISCUSSION
I. Whether the trial court erred in issuing a supplemental jury
instruction.
II. Whether the trial court erred in instructing the jury to continue
deliberations in light of the jury’s note indicating unanimous
agreement as to a lesser-included charge.
¶11. In Ainsworth’s first two assignments of error, he asserts that the trial court erred in
issuing a supplemental instruction and in issuing the Sharplin instruction.3 However the
record reflects that, during the jury’s deliberations, the defense not only failed to raise a
contemporaneous objection to the Sharplin charge issued by the trial court but also agreed
to the supplemental instruction. The record further reflects that the trial court was within its
discretion when it issued a Sharplin charge in accordance with Rule 3.10 of the Uniform
3
See Sharplin, 330 So. 2d at 596; see also Edlin v. State, 523 So. 2d 42, 44 (Miss.
1988) (discussing the issuance of a Sharplin instruction).
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Rules of Circuit and County Court Practice, and the supplemental instructions agreed upon
by the defense were consistent with that charge.4 Therefore, this issue is procedurally barred
since the defense failed to preserve it through a contemporaneous objection and failed to
raise the issue in posttrial motions. See McCoy v. State, 878 So. 2d 167, 174-75 (¶21) (Miss.
Ct. App. 2004).
III. Whether Ainsworth’s attorney was ineffective for failing to object
to the supplemental jury instruction.
¶12. In his third assignment of error, Ainsworth asserts that his attorney provided
ineffective assistance by agreeing to and failing to object to the supplemental instruction.
Decisions that fall within the scope of trial strategy fail to give rise to an ineffective-
assistance-of-counsel claim. Spicer v. State, 973 So. 2d 184, 203 (¶69) (Miss. 2007).5 Thus,
Ainsworth has failed to show by a preponderance of the evidence that his attorney’s
performance at trial was defective or that it constituted ineffective assistance of counsel. We
therefore find this assignment of error lacks merit.
¶13. Based upon the foregoing, we affirm the judgment of the trial court.
¶14. AFFIRMED.
4
See Thornton v. State, 841 So. 2d 170, 176-78 (¶¶30-37) (Miss. Ct. App. 2003)
(finding no abuse of discretion in the trial court’s issuance of a supplemental instruction
after the jury’s deliberations had begun).
5
See also Strickland v. Washington, 466 U.S. 668, 687 (1984) (providing that the
following criteria must be met by a preponderance of the evidence to establish ineffective
assistance of counsel: (1) counsel’s performance was defective; and (2) the defect was so
prejudicial that it prevented the defendant from receiving a fair trial).
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LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.
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