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Bufkin v. State3/9/2004
oplifting.
. Bufkin contends on appeal that this was error and that the proper way to handle the matter of prior convictions was to bifurcate the trial with the trial court making the necessary determinations regarding the prior convictions as a part of the sentencing phase of the trial. She argues that permitting the jury to learn of her prior convictions hopelessly prejudiced her in the eyes of the jury and raised the possibility that the jury would convict upon reaching the conclusion that her prior conduct had demonstrated a propensity for such criminal activity. Bufkin claims that this constituted a violation of Mississippi Rule of Evidence 404(b), which prohibits the admission of evidence of prior bad acts for that purpose.
. This issue is without merit. In the first place, it is procedurally barred since, at trial, Bufkin only objected to introduction of the prior convictions on the ground that one was too remote in time. As to the other conviction, Bufkin's counsel stated that, "We have no objection to it." An objection to proposed evidence must be timely. Entergy Miss., Inc. v. Bolden , 854 So. 2d 1051, 1058 ( ) (Miss. 2003). The objecting party must also state with some degree of certainty the ground on which the objection is made, and a failure to articulate some other available ground acts as a waiver as to the unstated basis. Materials Transp. Co. v. Newman , 656 So. 2d 1199, 1203 (Miss. 1995).
. Even were there no procedural bar, we find no merit in the argument. Felony shoplifting is somewhat akin to felony driving under the influence in that both rely on multiple prior convictions for the same offending conduct in order to raise the level of offense from a misdemeanor to a felony. The Mississippi Supreme Court has plainly stated that, in the matter of DUI offenses, 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. Rigby v. State , 826 So. 2d 694, 700 ( ) (Miss. 2002).
. In this instance, the trial court attempted to deal with the problems arising under Rule 404(b) by instructing the jury as follows:
The Court instructs the jury that before you can find the Defendant guilty of the crime for which she is being tried, you must find that she has twice previously been convicted of the crimes of shoplifting within the last seven years, and you may not consider evidence of other crimes as evidence of her guilt in this case.
. Mississippi Rule of Evidence 105 authorizes the court, when evidence is admissible for one purpose but not for another, to "restrict the evidence to its proper scope and instruct the jury accordingly." M.R.E. 105. The jury is presumed to follow the instructions given to it by the trial court. Johnson v. State , 475 So. 2d 1136, 1142 (Miss. 1985).
. We conclude that the matter of Bufkin's prior convictions was handled properly by the trial court and that this issue on appeal is without merit.
. THE JUDGMENT OF THE CIRCUIT COURT OF NESHOBA COUNTY OF CONVICTION OF FELONY SHOPLIFTING, THIRD OR SUBSEQUENT OFFENSE, AND SENTENCE OF FOUR YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.
KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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