IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2024-KA-01091-COA
BROOKE MALLETT APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 07/17/2024
TRIAL JUDGE: HON. M. JAMES CHANEY JR.
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: JOSEPH SCOTT HEMLEBEN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: DANIELLE LOVE BURKS
DISTRICT ATTORNEY: RICHARD EARL SMITH JR.
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 09/22/2026
MOTION FOR REHEARING FILED:
BEFORE WILSON, P.J., EMFINGER AND LASSITTER ST. PÉ, JJ.
EMFINGER, J., FOR THE COURT:
¶1. After a trial in the Circuit Court of Warren County, Mississippi, Brooke Mallett was
convicted of culpable negligence manslaughter and two counts of felony child neglect. She
was sentenced to serve twenty years in the custody of the Mississippi Department of
Corrections (MDOC) for culpable negligence manslaughter and five years in MDOC custody
on each count of child neglect, with the sentences ordered to run consecutively. Mallett now
appeals.
FACTS AND PROCEDURAL HISTORY
¶2. Around 9:15 on the morning of April 21, 2023, Lynne Cox, residing at 2419 Old Highway 27 in Vicksburg, was sitting in her living room when she heard a noise inside her
house. When she turned around, she discovered a little boy in the room with her. Cox
testified that the child had come in through the front door, closed the door, and was just
standing there. She described the young boy as being barefoot, dirty, and covered in bug
bites. She asked the boy where his mother was and took him outside to try and find her. Cox
told the jury that she had a hard time understanding anything the boy was saying, and based
on her background as an educator, she believed he was autistic. Cox gave the boy some juice
and a snack and told him they would sit out on her front porch to see if anyone came looking
for him. After nobody came searching for him, Cox called 911.
¶3. About ten minutes after the 911 call, law enforcement arrived at Cox’s home, along
with personnel from the Mississippi Department of Child Protection Services (CPS). Several
deputies and the CPS worker attempted to question the boy to determine his name, the name
of his parents, and where he lived. The boy could not give much information. The responders
decided to put the boy into the CPS vehicle as they drove around to canvass the area and look
for his parents or see if he could identify his home.
¶4. Officers found what appeared to be an unoccupied home located at 2400 Old Highway
27 with a front door partially open. Deputy Kinard was the first to arrive at this address, and
he approached the door to determine if anyone was inside. While he was at the partially open
door, Kinard was able to see two adults in a bed to the left of the door. He knocked on the
door and announced himself as a law enforcement officer. The people in the bed woke up,
and Mallett answered the door wearing only a bra and panties. Kinard asked if she had a son.
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Mallett responded that she had two sons and identified the boy with the officers as her oldest
son, five-year-old Daniel.1 When asked where her other son was, Mallett went inside the
home to look for him. The male adult located in the home with Mallett was identified as
Mallett’s boyfriend, John Walker.
¶5. Mallett told the officers that her other child, Kevin, who was non-verbal, was not
inside the home, and she did not know where he was. Mallett thought that he had possibly
left the property with her mother, Amanda Mallett. After contacting Amanda, it was
determined that Kevin was not in her care. Kinard described the home where Mallett was
living as being in disarray and unclean. There was no power and no running water. There was
waste all around. Upon the realization that Kevin was missing, the officers searched the
house and the immediate area surrounding the house without success.
¶6. Lieutenant Stacy Rollison called MBI to start a missing endangered persons report
while the sheriff’s department initiated a full search response. The officers returned to Cox’s
home to look around again in case Kevin had followed Daniel to her home. The deputies did
not find any evidence that Kevin had been there. Officers expanded their search to include
the entire area surrounding the property. Sheriff Martin Pace joined the search on foot. A
little after noon, as the sheriff was walking on the bank of a small body of water, he saw a
basketball floating in the water. As he continued to look at the basketball, the sheriff saw
what turned out to be Kevin’s body floating in the algae-covered pond. As captured by
Vicksburg Police drone footage, Sheriff Pace entered the water to retrieve Kevin’s lifeless
1
Pseudonyms are used to replace the names of the minor children to protect their identities.
3
body. Once he returned to the bank, he laid Kevin down and attempted chest compressions
and to clear the airway; however, Kevin was not responsive. Paramedics arrived shortly
thereafter and determined that Kevin was deceased.
¶7. As a result of their investigation into Kevin’s disappearance, officers discovered that
Mallett had an outstanding warrant from Copiah County. By the time that Kevin’s body was
found, Mallett had already been taken into custody. Walker was also taken into custody for
child neglect. Daniel was temporarily placed into CPS custody until an investigation could
be completed.
¶8. According to the CPS worker, Daniel had feces caked onto his private areas that had
to be gently scrubbed off. After being checked out by local physicians, Daniel was
transferred to Batson Children’s Hospital in Jackson for further evaluation. Daniel tested
positive via urinalysis for methamphetamine and amphetamine while at Batson.
¶9. The following day a search warrant was executed on the residence, curtilage,
outbuildings, and vehicles located at 2400 Old Highway 27, where Mallett had been staying
with the two boys. The home did not have electricity or running water. Drug paraphernalia,
a loaded gun, many cleaning chemicals within a child’s reach, and several other safety
hazards were all noted and photographed by police during the initial search for Kevin.
Although the home had been partially cleaned prior to the search warrant, the items listed
were able to be retrieved.
¶10. After waiving her Miranda rights,2 Mallett revealed that she had been told by CPS in
2
Miranda v. Arizona, 384 U.S. 436 (1966).
4
Copiah County that her children were going to be taken away if she failed another drug test.
According to Mallett, she was afraid of failing the test, so she left Copiah County and took
her children to Warren County.3 Mallett admitted to using methamphetamine, but claimed
that she had not used it in front of the children. Mallett told Lt. Rollison that she had passed
out from having a seizure the night before the current incident. During her interrogation, the
officer brought in several items found in the house during the search for Kevin. One item
identified by Mallett appeared to be a child’s toy that had been turned into a bong. Mallett
claimed the loaded gun beside her bed was registered in her name.
¶11. Rollison attempted to get a medical history of the two boys from Mallett during the
interrogation. According to Mallett, Daniel had been diagnosed with autism. Mallett said that
Kevin was born prematurely at six months and had a lung disease that required treatments.
Kevin was nonverbal and was in the process of being tested for autism, but he had not yet
been officially diagnosed. Rollison also confronted Mallett regarding her prior history of
irresponsibility for her boys. Kevin had previously tested positive for methamphetamine after
being found wandering down a highway in Crystal Springs wearing nothing but a wet diaper.
He had also been treated in an emergency room for ingesting roach poison. These events led
to the CPS involvement in Copiah County. Rollison explained to Mallett that her lack of
supervision over the boys had led to Kevin’s death; and therefore, she was being charged
with first-degree murder and child neglect. Rollison further explained that the district
attorney could alter the charges based upon the results of drug testing. Mallett’s hair follicle
3
A warrant for her arrest had been issued on April 6, 2023, for contempt of court for failure to appear in youth court.
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test conducted post-interview was positive for amphetamine and methamphetamine.
¶12. During Kevin’s autopsy, the medical examiner noted water and aquatic plants found
inside his nasal and oral cavities, trachea, and stomach. A metal washer was also located
inside his stomach contents. Some minor contusions and abrasions to his head and arms were
also documented. Kevin’s hair follicle test was positive for amphetamine and
methamphetamine. The cause of death was ruled to be drowning, and the manner of death
was accidental.
¶13. Mallett was indicted on three counts by a grand jury in Warren County on August 31,
2023: Count I: manslaughter by culpable negligence in violation of Mississippi Code
Annotated section 97-3-47 (Rev. 2020); and Counts II and III: child neglect in violation of
Mississippi Code Annotated section 97-5-39(1)(d) (Rev. 2020) (one count for Daniel and one
count for Kevin). Prior to trial, Mallett’s counsel filed a motion in limine to preclude the
State from introducing or mentioning prior improper-character or “bad acts” evidence. A
hearing on this motion was held on June 6, 2024. During the hearing, Mallett’s counsel
suggested that Mississippi Rule of Evidence 404(b) prevented the State from mentioning
Mallett’s drug use and prior incidents with CPS. The State argued that Rule 404(b)(2)
provided an exception based upon a sequence of events leading to Kevin’s death. The court
denied the motion upon finding that such proof would tend to show that the April 21 incident
was not just a mistake or an accident. Also, Mallett’s prior acts explained why she was in
Warren County at the time of the incident and living in an abandoned building with no water
or electricity.
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¶14. A four-day trial commenced on June 10, 2024. The defense moved for a directed
verdict on the third day of trial. After hearing from the defense and prosecution, the motion
was denied. On the last day of trial, Mallett chose not to testify. Following closing
arguments, the jury was given its instructions, and the jury retired for deliberations. A short
time later, the jury returned unanimous verdicts of guilty as to all three counts.
¶15. A sentencing hearing was held on July 17, 2024. Mallett was sentenced to twenty
years for Count I, five years for Count II, and five years for Count III. These sentences were
ordered to run consecutively. Mallett was also ordered to receive long-term alcohol and drug
treatment. Finally, Mallett was required to pay $5,000 in fines and court costs. On appeal,
Mallett raises eight issues, which she maintains require reversal of her convictions.
ANALYSIS
I. Was Mallet’s indictment fatally defective?
¶16. Mississippi Rule of Criminal Procedure 14(a)(1) provides:
Elements and Notice. The indictment upon which the defendant is to be tried
shall be a plain, concise and definite written statement of the essential facts
and elements constituting the offense charged and shall fully notify the
defendant of the nature and cause of the accusation. Formal and technical
words are not necessary in an indictment, if the offense can be substantially
described without them.
Mallett contends that while Counts II and III purport to charge her with child neglect
pursuant to Mississippi Code Annotated section 97-5-39(1)(d), each count fails to charge an
essential element of the crime and, therefore, she asks this Court to reverse her convictions
on those counts. While the issue of the legal sufficiency of these counts of the indictment was
not raised before the trial court, it may be raised for the first time on appeal. See Payne v.
7
State, 282 So. 3d 432, 436 (¶13) (Miss. Ct. App. 2019).
¶17. On appeal, in support of that argument, Mallett quotes the language of section 97-5-39(1)(d), which, as of July 1, 2024, reads as follows:
If the parent has failed to provide the child with food, clothing, or shelter
necessary to sustain the life or health of the child, excluding failure caused
by financial inability unless relief services have been offered and refused
and the child is in imminent risk of harm, or the parent is unwilling to
provide reasonably necessary medical care, though that medical care does not
include recommended or optional vaccinations against childhood or any other
disease, the person may be sentenced to imprisonment in custody of the
Department of Corrections for not more than five (5) years or to payment of
a fine of not more than Five Thousand Dollars ($5,000.00), or both.
(Emphasis added). The essential element Mallett contends was missing from the indictment
is the portion emphasized above. At the time of the offense for which Mallett is charged, this
section read as follows:
If the child’s deprivation of necessary clothing, shelter, health care or
supervision appropriate to the child’s age results in substantial harm to the
child’s physical, mental or emotional health, the person may be sentenced to
imprisonment in custody of the Department of Corrections for not more than
five (5) years or to payment of a fine of not more than Five Thousand Dollars
($5,000.00), or both.
Miss. Code Ann. § 97-5-39(1)(d) (Rev. 2020); 2013 Miss. Laws ch. 483, § 1 (H.B. 1259).
Notably, the element that Mallett contends is missing from the indictment was not a part of
the statute at the time of her offense in 2023 or at the time of her trial on June 10-13, 2024.
¶18. It is well established that the statute in effect at the time of the offense controls the
prosecution of the offense. See Flowers v. State, 35 So. 3d 516, 518 (¶5) (Miss. 2010);
Wilson v. State, 967 So. 2d 32, 42 (¶22) (Miss. 2007); Cook v. State, 301 So. 3d 766, 774
(¶20) (Miss. Ct. App. 2020); Masters v. State, 285 So. 3d 192, 198 (¶22) (Miss. Ct. App.
8
2019); Miss. Code Ann. § 99-19-1 (Rev. 2020). Because the indictment contained all the
essential elements of the offense at the time the crime was committed, this issue is without
merit.
II. Was Mallett’s right to confront the witnesses against her violated?
¶19. Mallett contends that her right to confront the witnesses against her at trial in this case
was violated under the United States Constitution and the Mississippi Constitution. The State
contends that this issue is barred from consideration on appeal because it was not raised
before the trial court. Appellate counsel concedes that “[t]he closest trial counsel came to
articulating an objection pursuant to Crawford was stating that ‘It’s a document that [the
witness] was not involved in the preparation of . . . .’” See infra ¶22. This statement was
made amid counsel’s hearsay objection to the admission of CPS reports at trial. By raising
only a hearsay objection, Mallett waived all other grounds. See Triplett v. State, 264 So. 3d
808, 815 (¶25) (Miss. Ct. App. 2018) (“It is well established that ‘an objection on one or
more specific grounds constitutes a waiver of all other grounds.’” (quoting Fleming v. State,
604 So. 2d 280, 292 (Miss. 1992))). This procedural bar has been applied to Confrontation
Clause claims not raised at trial. See Ronk v. State, 172 So. 3d 1112, 1134 (¶51) (Miss. 2015).
Because Mallett did not raise an objection based upon her right to confront the witnesses
against her during pretrial hearings, at trial, or in her post-trial motion, this issue is
procedurally barred from consideration on appeal. See Patterson v. State, 422 So. 3d 1062,
1069 (¶32) (Miss. Ct. App. 2025).
¶20. However, just as in Patterson, Mallett’s appellate counsel asks that we conduct a plain
9
error analysis. In Patterson, this Court stated:
“For the plain-error doctrine to apply, there must have been an error that
resulted in a manifest miscarriage of justice or seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Conners v. State, 92
So. 3d 676, 682 (¶15) (Miss. 2012); see also Phillips v. State, No. 2023-KA01218-SCT, 2025 WL 798347, at *4 (¶22) (Miss. Mar. 13, 2025) (discussing
the plain-error doctrine in the Confrontation Clause context).
Id. at (¶33).
¶21. Mallett’s appellate argument on this issue is directed at the trial testimony of Shirlene
Hill, a CPS employee in Warren County. Hill testified that, as a part of her investigation of
the events for which Mallett was being tried, she reviewed CPS records of prior events that
occurred in Copiah County concerning Mallett and her children. The CPS reports concerning
incidents occurring in Copiah County on February 26, 2022, and March 24, 2023, as well as
Hill’s testimony concerning the contents of these reports, were admitted over the objection
of Mallett’s trial counsel on other grounds. The issue presented in this assignment of error
is not the admissibility of Hill’s testimony and the reports over Mallett’s objection on other
grounds, but whether Mallett’s confrontation rights were violated by their admission.
¶22. In Johnson v. State, 155 So. 3d 733, 739 (¶10) (Miss. 2014), the supreme court stated:
“In Crawford v. Washington, the United States Supreme Court held that
testimonial statements of witnesses absent from trial can be admitted, in
accordance with common law, only where the declarant is unavailable and the
defendant had a prior opportunity to cross-examine.” Smith, 986 So. 2d at 296
(citing Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1364, 158
L. Ed. 2d 177 (2004)) (emphasis in original). The Supreme Court
distinguished between testimonial and nontestimonial statements, and this
Court adopted the distinction: “[n]ontestimonial hearsay is subject to
evidentiary rules concerning reliability,” while “testimonial hearsay must
be filtered through the Confrontation Clause.” Smith, 986 So. 2d at 296-97
(citing Crawford, 541 U.S. at 68, 124 S. Ct. 1354).
10
(Emphasis added). Thus, we must first decide whether the information from the CPS reports
constituted testimonial or non-testimonial statements.
¶23. State’s Exhibit 13 is a copy of the CPS report of an incident that occurred on February
26, 2022, in Copiah County. The report by Copiah County CPS worker Marquita Smith
showed that Kevin, Mallett’s then two-year old child, was found walking on Highway 27 in
the cold, wearing only a soiled diaper. Mallett told Smith that Kevin had been asleep in the
bed with her and that she did not know how he got out of the house. Mallett and her mother,
Amanda, who was present in the home, told Smith they believed a visitor may have opened
the door for Kevin and allowed him to go outside by himself. Ultimately, the report shows
that Mallett and Amanda passed a drug screen and that additional locks and safety gates were
installed at the suggestion of CPS. Smith recommended that the investigation be closed and
noted that no other services were needed at the time.
¶24. State’s Exhibit 15 is a copy of a CPS report, again by Smith, of an incident that
occurred on March 24, 2023, in Copiah County. Apparently, Kevin was at his 85-year-old
great-grandmother’s house and ingested a small amount of roach killer. The greatgrandmother said she immediately rinsed out his mouth and carried him back to Mallett.
Mallett then called an ambulance, and Kevin ended up at Batson Children’s Hospital in
Jackson. During Kevin’s treatment, it was discovered that Kevin tested positive for
amphetamines and methamphetamine. Smith told Mallett about the positive tests after Kevin
was back at home with his mother. Mallett told Smith she did not know why Kevin would
have tested positive for methamphetamine. Smith advised Mallett that she would have to
11
contact the judge because these were grounds for the judge to order that the children be taken
into CPS custody. Smith then advised Mallett and Amanda that they had to appear for a drug
screen by 3 p.m. that day, March 28, 2023, or she would have to contact the judge concerning
taking the children into CPS custody. After Mallett failed to appear for the drug screen, and
after CPS was unable to locate the family for several days, Smith contacted the judge, who
then issued a warrant for Mallett’s arrest. Smith’s report concludes by stating that she is
substantiating the allegations of abuse and/or neglect. Because the family could not be
located and a warrant had been issued, Smith recommended that the investigation be closed.
¶25. Mallett argues that statements contained in the admitted exhibits were “unquestionably
testimonial.” She contends that through Hill’s testimony and the exhibits, “the State was able
to put before the jury unchallenged allegations that, on historical occasions outside the charge
in the indictment, Mallett, was a bad mother, addicted to drugs, let her child eat poison, let
her child wander away from the house, was ordered to take a drug test and that a warrant was
issued for her arrest.” Therefore, Mallett concludes that the admission of such evidence in
violation of her right of confrontation cannot be harmless error and that her convictions must
be reversed.
¶26. The State maintains that the statements in the CPS reports were non-testimonial
because they were not generated to be used in a criminal prosecution against Mallett;
therefore, their admission did not violate Mallett’s confrontation rights. The State argues that
the purpose of CPS, pursuant to section 43-15-5, is to “administer or supervise all public
child welfare services.” In other words, CPS has a duty to protect and provide care for
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children in need.
¶27. In our determination of whether the statements at issue are testimonial or nontestimonial, we are guided by the words of the United States Supreme Court in Ohio v. Clark,
576 U.S. 237, 245-46 (2015):
In the end, the question is whether, in light of all the circumstances, viewed
objectively, the “primary purpose” of the conversation was to “creat[e] an
out-of-court substitute for trial testimony.”
Thus, under our precedents, a statement cannot fall within the Confrontation
Clause unless its primary purpose was testimonial. “Where no such primary
purpose exists, the admissibility of a statement is the concern of state and
federal rules of evidence, not the Confrontation Clause.”
(Citations omitted). Based upon our review of the reports, we find that the statements
contained in the CPS records were non-testimonial statements because the primary purpose
of CPS’s actions during their investigations was to protect children, not to prosecute potential
criminal offenses. These nontestimonial statements did not trigger the Confrontation Clause.
See Garlington v. State, 349 So. 3d 782, 807-08 (¶90) (Miss. Ct. App. 2022).
III. Did the trial court err by admitting improper character evidence?
¶28. Mallett contends that the CPS reports from Copiah County and Hill’s testimony were
erroneously admitted into evidence. Mallett makes several arguments to support her
contention that the trial court erred by admitting evidence of her prior acts pursuant to
Mississippi Rule of Evidence (MRE) 404(b)(2). She first argues that such evidence was not
relevant and should have been excluded pursuant to MRE 401. She then argues that should
this Court find that the evidence was relevant, then the trial court should have excluded the
evidence pursuant to MRE 403 because the probative value of such evidence was
13
substantially outweighed by the danger of unfair prejudice to Mallett. She then argues that
the evidence complained of was improper character evidence pursuant to MRE 404(a)(1).
She contends the State used such evidence to show that she had been a bad mother in the past
and that, therefore, she was a bad mother on the date of the crimes for which she was being
tried. Mallett also argues that the trial court improperly admitted the evidence pursuant to
MRE 404(b)(2) to show an absence of mistake or accident and in order to tell the complete
story. Mallett concludes by arguing that the trial court erred by failing to conduct an “on-therecord” balancing test pursuant MRE 403.
¶29. The evidence that Mallett contends was erroneously admitted was the CPS reports set
forth above and Hill’s testimony concerning the contents of the reports. In some parts of her
arguments on this issue, Mallett also points to evidence found at the abandoned house they
were staying in when the children wandered away. She contends that this evidence
improperly implies that she was using drugs. We address Mallett’s claims below.
A. Was the evidence relevant to the issues presented at trial?
¶30. Mallett contends that evidence of her prior conduct set out in the CPS reports is not
relevant to the conduct charged to have occurred on April 21, 2023. She argues that “while
it may be intuitive in child neglect cases to consider conduct and conditions over a range of
time, here, the grand jury limited the charge to a single day.” Whether there was evidence
that Mallett was a “bad mom” in the past “is not ‘of consequence’ in determining whether
Mallett committed culpable negligence manslaughter and child neglect on April 21, 2023.”
Mallett concludes by stating “any argument that it is relevant is merely propensity evidence
14
in poor disguise.” Mallett cites no authority in support of this portion of her argument.
¶31. In any event, MRE 401 provides:
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be
without the evidence; and
(b) the fact is of consequence in determining the case.
Polk v. State, 422 So. 3d 1072, 1078-79 (¶14) (Miss. Ct. App. 2025), addressed the
admission of evidence under the rule:
Issues regarding “[t]he relevancy and admissibility of evidence are well within
the trial court’s discretion, and reversal may be had only where that discretion
has been abused.” [Davis v. State, 399 So. 3d 966, 970 (¶12) (Miss. Ct. App.
2025)] (quoting Ross [v. State], 308 So. 3d [885] 889 (¶10) [Miss. Ct. App.
2020]). “Evidence is relevant if . . . it has any tendency to make a fact more or
less probable than it would be without the evidence[,] and the fact is of
consequence in determining the case.” MRE 401. “Rule 401 is construed
broadly in favor of admitting evidence with even slight probative value.” Pugh
v. State, 270 So. 3d 949, 958 (¶34) (Miss. Ct. App. 2018) (quoting Ross v.
State, 954 So. 2d 968, 993 (¶44) (Miss. 2007)).
¶32. The State argued before the trial court, and here on appeal, that the evidence of these
prior events tends to show that what happened on April 21, 2023, was not the result of a
simple mistake or mere accident. These prior events support the State’s claim that Kevin died
as a result of Mallett’s culpable negligence. As stated in the jury instructions, this evidence
aids in showing that Mallett’s actions on April 21, 2023, constituted “negligence of a degree
so gross as to be tantamount to a wanton disregard, or utter indifference to, the safety of
[Kevin’s] life.”
¶33. The trial court heard these same arguments and ruled that the evidence was admissible
15
to show that what happened in Warren County on April 21, 2023, was “not just a mistake or
accident” and to show the complete story of how they were living in Warren County in an
abandoned house, without water and electricity. We find that the trial court did not abuse its
discretion by admitting the CPS reports and testimony concerning the reports.
B. Were the CPS reports improper character evidence pursuant to
MRE 404(a)(1)?
¶34. Mallett contends that the CPS reports and testimony concerning the reports should
have been excluded pursuant to MRE 404(a)(1). In Tate v. State, 331 So. 3d 57, 62 (¶13)
(Miss. Ct. App. 2021), this Court found:
With limited exceptions, the Mississippi Rules of Evidence prohibit the use of
“[e]vidence of a person’s character or character trait” to prove that “the person
acted in accordance with the character or trait.” MRE 404(a)(1). The circuit
court determined the evidence of Tate’s prior conviction was admissible under
Mississippi Rule of Evidence 404(b)(2), which provides, “This evidence may
be admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.”
While Mallett contends that the reports constitute improper “propensity” evidence, the trial
court found that the evidence was admissible under MRE 404(b)(2). As will be discussed
below, we find that the trial court did not abuse its discretion by admitting this evidence.
C. Did the trial court err by admitting the reports pursuant to MRE
404(b)(2)?
¶35. The CPS reports show that within fourteen months of Kevin’s death, Mallett had been
investigated twice for a failure to properly supervise her young children. The first time she
was investigated, she was asleep with Kevin, and, somehow, he got out of bed in his diaper,
left the house, and was found wandering down a highway, unsupervised. Mallett was
16
instructed to take additional safety measures in her home, and the case was closed. The
second time Mallett was investigated was when Kevin ingested roach poison while in the
care of his great-grandmother. However, during his treatment at the hospital he tested
positive for amphetamine and methamphetamine. When Mallett was told that this test result
was a basis to remove her children from her custody and that she was required to take a drug
screen, Mallett fled, with her children, to an abandoned house in Warren County that did not
have electricity or running water.
¶36. On April 21, 2023, after both her boys wandered away from the dilapidated residence,
Mallett was found asleep in bed with her boyfriend, and a meth pipe was found in the bed
with them. The older child, Daniel, was taken to the hospital for treatment and tested positive
for amphetamine and methamphetamine. The younger child, Kevin, was found dead in a
pond. As part of the autopsy, Kevin tested positive for amphetamine and methamphetamine.
Both Mallett and her boyfriend tested positive for amphetamine and methamphetamine.
¶37. The trial court found that the CPS reports concerning prior incidents where Kevin was
not properly supervised and tested positive for amphetamine and methamphetamine were
admissible to show that Mallett’s failure to supervise the boys on April 21, 2023, was not just
a simple mistake or accident. The court further found that the admission of the reports was
necessary to tell the complete story. In Hunter v. State, 411 So. 3d 125, 129 (¶20) (Miss.
2025), the supreme court explained:
“This Court has held that ‘proof of another crime or act’ is allowed ‘when it
is so interrelated to the charged crime that it constitutes either a single
transaction or occurrence or a closely related series of transactions or
occurrences.’” Anderson v. State, 359 So. 3d 637, 644 (Miss. 2023) (quoting
17
Brown v. State, 890 So. 2d 901, 912 (Miss. 2004)). “Evidence of other bad acts
is admissible in order to tell a complete story to avoid confusion among
jurors.” Simmons v. State, 805 So. 2d 452, 481 (Miss. 2001) (citing Ballenger
v. State, 667 So. 2d 1242, 1256 (Miss. 1995)). “[W]hen dealing with closely
related acts, the State ‘has a legitimate interest in telling a rational and
coherent story of what happened[.]’” Newell v. State, 175 So. 3d 1260, 1276
(Miss. 2015) (alterations in original) (internal quotation marks omitted)
(quoting Welde v. State, 3 So. 3d 113, 117 (Miss. 2009)).
We find that the trial court did not abuse its discretion by admitting the CPS reports and
testimony concerning those reports.
D. Did the trial court err by failing to exclude evidence of the prior
bad acts pursuant to MRE 403?
¶38. Mallett contends that the trial court should have excluded the questioned evidence
pursuant to MRE 403, which states:
The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.
Our standard of review of a trial court’s admission or exclusion of evidence under MRE 403
is set forth in Wallace v. State, 369 So. 3d 83, 89 (¶19) (Miss. Ct. App. 2023):
Furthermore, relevant evidence should not be excluded under Rule 403 unless
its “probative value is substantially outweighed by the danger of unfair
prejudice.” MRE 403 (emphasis added). “Even then, exclusion is permissive,
not mandatory. That decision is committed to the broad discretion of the trial
judge, and our standard of review is highly deferential.” Curry v. State, 202
So. 3d 294, 298-99 (¶13) (Miss. Ct. App. 2016) (ellipsis omitted). “Rule 403’s
scope is narrow, [and] it is an extraordinary measure that should be used very
sparingly.” Id. at 298 (¶13) (quotation marks omitted).
¶39. Mallett argues that evidence of prior incidents in which CPS conducted investigations
and evidence of her prior drug use and positive drug screens were irrelevant to the charges
18
here and were prejudicial to her case. While Mallett’s counsel never mentioned MRE 403
during his arguments before the trial court, he was clearly arguing that any relevance her
prior conduct may have to the present case was unfairly prejudicial to Mallett. It is equally
clear from the trial transcript that the trial judge considered Mallett’s arguments yet found
that evidence should be admitted. After hearing all the arguments by Mallett and the State,
the trial court found that the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice to Mallett. Under our “highly deferential”
standard of review, we find that the trial court did not abuse its “broad discretion” by
admitting the evidence.
¶40. Mallett also asserts on appeal that her convictions should be reversed because the trial
court failed to perform an “on-the-record” balancing test required by Rule 403. However, in
Jones v. State, 920 So. 2d 465, 476 (¶34) (Miss. 2006), the supreme court reasoned:
In asserting that his due process rights were violated when the trial court judge
failed to perform an on-the-record Rule 403 balancing test, Jones has
misapprehended the nature of our rules of evidence and the discretion afforded
to trial judges when applying these rules. Accordingly, while we clearly
interpret the rules of evidence as requiring that all otherwise admissible
evidence be “filtered” through the balancing test set forth in Rule 403, we do
not interpret this requirement to be a regimented procedure that must be
explicitly performed on pain of reversal. Though this Court certainly expects
trial judges to have considered Rule 403 in making their evidentiary rulings,
we certainly do not predicate the soundness of these determinations on the
express use of magic words. From a practical standpoint, even though this
issue in today’s case was initially addressed at a motion hearing, quite often
the trial judge is required to make Rule 403 rulings from the bench with a
witness on the stand, a jury in the box, and a lawyer on the floor making an
objection. It follows that our review depends on the evidence and not the
judge, and while a judge’s on-the-record analysis is recommended as it
serves to fortify the judge’s position for purposes of review, the lack of
such analysis is harmless unless we deem the evidence to be patently
19
prejudicial. The judge’s failure to perform an on-the-record Rule 403 analysis
in no way affected Jones’s rights. Moreover, the evidence of the September 6
incident was properly admitted as its probative value was not substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury. Miss. R. Evid. 403. We, therefore, find this issue to be
without merit.
(Emphasis added). Because we find that the trial court did not err by admitting the
complained-of evidence, the failure of the trial judge to express his balancing of interests on
the record is harmless.
E. Did the trial court err by failing to give a contemporaneous
limiting instruction pursuant to MRE 105?
¶41. Mallett contends that the trial court erred by failing to follow MRE 105, which states:
If the court admits evidence that is admissible against a party or for a
purpose—but not against another party or for another purpose—the court,
unless expressly waived or rebutted, shall restrict the evidence to its proper
scope, contemporaneously instruct the jury accordingly, and give a written
instruction if requested.
The record shows that Mallett did not request a limiting instruction, either at the time the
evidence was admitted or during the jury instruction conference. In any event, in a similar
situation in Durr v. State, 385 So. 3d 776, 787 (¶31) (Miss. Ct. App. 2023), this Court stated:
Durr’s trial counsel did not request a limiting instruction at the time the
affidavit was admitted or during the jury instruction conference. Further, the
issue was not raised in the motion for a new trial. We have previously
addressed the failure to give a limiting instruction in Lowe v. State, 333 So. 3d
626, 633 (¶20) (Miss. Ct. App. 2022):
Lowe also asserts that “the jury was not provided a limiting instruction
explaining the proper and improper purposes for which it may consider the
evidence.” Mississippi Rule of Evidence 105 states:
If the court admits evidence that is admissible against a party or
for a purpose—but not against another party or for another
20
purpose—the court, unless expressly waived or rebutted, shall
restrict the evidence to its proper scope, contemporaneously
instruct the jury accordingly, and give a written instruction if
requested.
However, “Rule 105 only requires the judge to offer a limiting instruction,
which the defendant is free to ‘waive.’” Curry v. State, 202 So. 3d 294, 299
(¶16) (Miss. Ct. App. 2016) (citing MRE 105). In this instance, defense
counsel did not request a written limiting instruction. Further, when the trial
judge failed to instruct the jury contemporaneously with the admission of the
statement, defense counsel did not call the matter to the judge’s attention. Had
he done so, any error could have been rectified at that time. “A trial judge
cannot be put in error on a matter which was not presented to him for
decision.” Reynolds v. State, 913 So. 2d 290, 300 (¶37) (Miss. 2005). We
further find the absence of any limiting instruction by the court did not deprive
Lowe of a fair trial. See Curry, 202 So. 3d at 299 (¶16) (recognizing “that the
erroneous denial of a limiting instruction is harmless error unless it deprives
the defendant of a fair trial”) (citing Robinson v. State, 940 So. 2d 235, 239
(¶11) (Miss. 2006)). Therefore, we find this argument is without merit.
(Emphasis added). Because the same is true here, we find that this issue is without merit.
IV. Did the trial court err by giving defective jury instructions?
¶42. Mallett acknowledges that trial counsel failed to raise a contemporaneous objection
to certain instructions during the jury instruction conference. Therefore, on appeal, Mallett
requests this Court to consider the culpable negligence manslaughter instructions and the
child neglect instructions using the doctrine of plain error. We address the latter first. Mallett
contends that the child neglect instructions omitted an essential element of the crime. As
discussed above, Mallett relies upon the language from the amended statute to support this
argument as to the instruction. See supra ¶¶16-18. For the reasons set forth above, there is
no error as to the child neglect instructions.
¶43. As to the culpable negligence manslaughter instructions, Mallett contends the
21
instructions “failed to identify what action or inaction of Mallett’s was the proximate cause
of [Kevin’s] death constituting culpable negligence.” Mallett exclusively relies upon this
court’s decision in Edwards v. State, 755 So. 2d 443, 446 (¶12) (Miss. Ct. App. 1999), to
support her argument. In that case, the parents’ convictions for culpable negligence
manslaughter in the death of their four-year-old son were reversed and rendered. Id. at 448-49 (¶¶21-23). We find the indictment, instructions, and evidence in Edwards to be
substantially different than those found in the present case.
¶44. In Edwards, this Court noted that the language of the indictment simply repeated the
language found in the statute. Id. at 445 (¶3). While there was no question that the indictment
was legally sufficient, because the issue was the sufficiency of the evidence, the court then
stated:
Because of the form of the indictment, the particular facts relied on by the
State to substantiate a charge of culpable negligence must be found elsewhere.
We will consider the evidence presented by the State separately as to each of
these defendants.
Id.
¶45. This Court first gave a brief synopsis of the facts of the case:
John and Margie Edwards, together with their three children and a number of
friends, went on a camping and boating excursion in Scott County. The
participants set up a camping area on a sandbar on the Pearl River. They
engaged in such activities as swimming and boating and had built a campfire
on the sandbar. Tragically, at about 2:00 a.m., Michael Edwards, the four year
old child of the defendants, was discovered to be missing. The child’s body
was recovered from the river early the next morning and the cause of death
was determined to be fresh water drowning.
Id. at 444 (¶2). The court went on to note that the evidence showed that at the time the child
22
was discovered missing, the father had left the campsite to go boating in the company of
several others. Id. at 445 (¶4). The mother was sitting by the campfire dealing with an injury
to her ten-year-old daughter’s foot. Id. at (¶5). The testimony showed that other adult
members of the group were taking the child into the water. Id. According to witnesses, the
child was last seen on the shoulders of another adult, but when that adult emerged from the
water, the witnesses did not see the child. Id.
¶46. While Edwards described the indictment as “bare-bones,” this Court noted, “[T]hat
does not permit the State to convict without some coherent theory of its case supported by
the underlying evidence to support that theory.” Id. at (¶7). This Court went on to note that
the State did not outline its theory of the case before calling witnesses because there were no
opening statements. The court also noted that in response to a motion for a directed verdict
at the close of the State’s case, the State argued that the parents had
the responsibility to shoulder the burden to make sure the child is not out in
pitch black dark at 2:00 o’clock in the morning, swimming in an area where
the current apparently was swift enough to almost drag another one of their
older children into the water to drown.
Id. at 446 (¶8). The State in Edwards also argued to the jury that the parents’ failure to
require the child to wear a flotation device and the father’s decision to leave the child on the
sandbar and take a boat ride were sufficient facts to find the parents guilty of culpable
negligence manslaughter. Id. The court then addressed the State’s closing argument, where
it argued:
taking this young child on this excursion near a river without adequate lighting
and without requiring the child to have on a flotation device was, of itself,
such negligence as would rise to the level of criminal culpable negligence.
23
Id. at (¶10). The court continued its analysis by looking at the jury instructions. In reviewing
the instructions given to the jury, the court found:
Again, in its requested instructions, the State wholly failed to articulate a
coherent fact-based theory of culpable negligence. None of the instructions
even purport to set forth any specific act or failure to act by either of these
defendants that would, if established by the proof, support a finding of
culpable negligence. Instead, the jury was merely given a definition of
culpable negligence in the most general terms and then told that, if they
concluded that the defendants caused Michael’s death by culpable negligence,
it was their duty to convict.
Id. While this Court noted the instructions were clearly erroneous, we also found the
evidence against the parents was legally insufficient, reversed their convictions and rendered
judgment in favor of the appellants.
¶47. In the present case, the indictment was not “bare-bones” and did set forth a factual
basis for the charge. The indictment alleged that Mallett was culpably negligent “by
negligently failing to properly supervise, care for, and protect said child culminating in said
child wandering away from home and drowning, resulting in his death.” The jury instruction
containing the elements required the jury to find Mallett guilty beyond a reasonable doubt
repeated the same language. We find the State presented a coherent theory that began in the
State’s opening statement and continued through its presentation of evidence and closing
arguments. As will be discussed below, the evidence was legally sufficient to support the
convictions of culpable negligence manslaughter, and we find that jury instructions were not
given in error.
V. Was the evidence legally sufficient to support Mallett’s
convictions?
24
¶48. In Jones v. State, 380 So. 3d 974, 980 (¶13) (Miss. Ct. App. 2024), this Court
described our standard of review for such claims:
We review a challenge to “the legal sufficiency of the evidence” de novo, but
the evidence must be “viewed in a light most favorable to the State.” Johnson
v. State, 904 So. 2d 162, 166 (¶7) (Miss. 2005). This means that “all credible
evidence supporting a defendant's guilt should be accepted as true, and all
favorable inferences drawn from the evidence must be reconciled in the
prosecution's favor.” Id. “We determine if any rational juror could have found
the essential elements of the crime beyond a reasonable doubt.” Williams v.
State, 285 So. 3d 156, 159 (¶11) (Miss. 2019). “We are not required to
decide—and in fact we must refrain from deciding—whether we think the
State proved the elements.” Poole v. State, 46 So. 3d 290, 293-94 (¶20) (Miss.
2010). Rather, we must affirm the conviction as long as there is sufficient
evidence for a rational juror to find that the State proved all the elements of the
offense. Id.
We address the evidence admitted in support of the convictions separately below.
A. Culpable Negligence Manslaughter
¶49. In Edwards v. State, 357 So. 3d 1120, 1127 (¶22) (Miss. Ct. App. 2022), this Court
identified the elements of proof required for culpable negligence manslaughter:
Mississippi Code Annotated section 97-3-47 (Rev. 2014) defines manslaughter
as the “killing of a human being, by the act, procurement, or culpable
negligence of another, and without authority of law, not provided for in this
title . . . .” “The statutory elements of culpable-negligence manslaughter are
‘an unlawful killing by the culpable negligence of another.’” Wise v. State, 263
So. 3d 668, 675 (¶30) (Miss. Ct. App. 2018).
¶50. Mallett contends that the State failed to produce proof that rises to the level of
culpable negligence. Mallett agrees that the jury was properly instructed as to the definition
of culpable negligence. Jury Instruction S-4 stated:
The Court instructs the jury that the term “culpable negligence” as used in
other instructions of the Court, means negligence of a degree so gross as to be
tantamount to a wanton disregard, or utter indifference to, the safety of human
25
life.
Mallett contends that the State put on no proof of any action or omission by Mallett that even
approaches such a degree of negligence. Mallett argues:
Does sleeping while being a single parent constitute negligence of a degree so
gross as to be tantamount to a wanton disregard, or utter indifference to, the
safety of human life”[?] Sleeping is a fundamental biological process that is
necessary to sustain human life. Parents are humans. Therefore, parents must
sleep.
¶51. The State points to proof admitted at trial that Mallett was well aware that Kevin
could escape a house and wander off into dangerous conditions because it had happened
before. The CPS report from a year earlier showed that Kevin was found walking down a
highway in nothing but a soiled diaper. CPS recommended additional precautions be taken,
which included more locks on doors and more child gates, to keep Kevin, who was nonverbal and being evaluated for autism, safe. Instead, Mallett moved to an abandoned house
without electricity, water, or the safety measures recommended by CPS. Further, Kevin and
his brother wandered away from this house without Mallett knowing it. The inference from
the evidence was that they had been gone for some time before Mallett even knew they were
missing. When law enforcement found Mallett, she was passed out in bed with her boyfriend,
and a meth pipe was found in the bed in which they were sleeping. Other drug paraphernalia
was also found in the house. Mallett, her boyfriend, and both boys tested positive for
methamphetamine. The evidence further showed that they were in this house because Mallett
was afraid the boys would be taken from her if she failed to pass a drug screen that she had
been ordered to take in Copiah County.
26
¶52. We find that from the evidence admitted at trial and the reasonable inferences that
could be drawn therefrom, reasonable jurors could find beyond a reasonable doubt that
Mallett’s continued drug use and her flight from Copiah County to place the boys in an
unsafe environment in Warren County evidenced an utter indifference to the safety of human
life and that Kevin died as a result of his mother’s conduct.
B. Child Neglect in Counts II and III
¶53. Mallett continues to argue that the indictment in Counts II and III charged her with
medical neglect. As discussed above, this is simply incorrect. The medical neglect language
was added by amendment to this Code section and did not go into effect until well over a
year after the conduct for which Mallett was charged here. Her arguments concerning the
insufficiency of the evidence to prove medical neglect are without merit.
¶54. As to Count II, Mallett makes no other argument to show any deficiency in the
evidence to prove child neglect. In any event, as discussed above, the evidence was sufficient
to prove that Mallett was Kevin’s mother and that Kevin was under eighteen years of age.
The evidence showed that Kevin’s death was caused by drowning in Warren County on April
21, 2023. The circumstances that existed at the abandoned house they were staying in were
sufficient for the jury to find that Mallett was not providing adequate safety for Kevin and
his brother. Most importantly, however, the evidence was legally sufficient to show that
Mallett was not providing proper care and supervision for Kevin, which led to his death.
Direct and circumstantial evidence showed that Mallett was passed out with her boyfriend
and tested positive for methamphetamine. She was not then capable of providing the care and
27
supervision that Kevin obviously needed. She had apparently left a home where additional
safety measures had been put in place to protect Kevin and took him to an abandoned house
without adequate safety measures. The evidence was sufficient to prove Mallett was not then
providing “proper care and supervision” for a child of Kevin’s age and condition. This is
especially true since she was unconscious and incapable of providing such care. This issue
is without merit.
¶55. As to Count III, the bulk of Mallett’s argument is based on medical neglect and the
failure to prove that she had the financial ability to do better for her boys. As noted above,
this was not an element of proof for child neglect as charged in Count III. She also argues
that the State did not produce any evidence that Mallett “failed to provide food, clothing, or
shelter necessary to sustain the life and health of [Daniel].” She further argues that there was
no proof that her acts or omissions caused Daniel any “substantial harm” as charged in the
indictment. Mallett concedes, however, that the proof from multiple medical experts showed
Daniel suffered from mild dehydration, insect bites, bruises, and dental decay and was dirty
and disheveled. Additionally, Mallett also concedes that one expert testified Daniel tested
positive for methamphetamine and amphetamine.
¶56. In addition to the testimony from the experts noted above, the State points to evidence
that Daniel, a five-year-old with autism wandered unsupervised away from the abandoned
house where they were staying and was found inside Lynne Cox’s home, some distance
away. The evidence shows that he was barefoot, had bug bites and bruises, and had dried
feces on his bottom and genitals when he was found by Cox.
28
¶57. Again, we find the evidence was legally sufficient to show that Mallett was Daniel’s
mother and that Daniel was under the age of eighteen. According to the evidence, Daniel was
found in Cox’s home in Warren County. As noted above, the evidence was sufficient to show
that Mallett had failed to properly care for and supervise an autistic five-year-old Daniel. We
find that Daniel’s various conditions described above were sufficient for the jury to find that
Mallett’s acts or omissions had caused him substantial harm. This issue is without merit.
VI. Do Mallett’s convictions and sentences violate her constitutional
protection against double jeopardy?
¶58. Our standard of review for claims of double jeopardy is as set out in Fox v. State, 412
So. 3d 426, 441-42 (¶54) (Miss. Ct. App. 2024):
“[W]e apply a de novo standard of review to claims of double jeopardy.”
Woods v. State, 30 So. 3d 362, 365 (¶8) (Miss. Ct. App. 2009) (citing Boyd v.
State, 977 So. 2d 329, 334 (¶14) (Miss. 2008)). In addressing the double
jeopardy claim we use the “same elements test” set out by the United States
Supreme Court. Ivey v. State, 134 So. 3d 796, 798 (¶5) (Miss. Ct. App. 2013).
“The applicable rule is that, where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.” Blockburger v.
United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)[.]
We must start our review by looking at the charges as they are in the indictment. Mallett was
charged with manslaughter by culpable negligence in Count I, and the indictment stated in
part that on or about April 21, 2023, Mallett
did unlawfully and feloniously kill [Kevin] by his/her act, procurement, or
culpable negligence without authority of law, by negligently failing to properly
supervise, care for, and protect said child culminating in said child wandering
away from home and drowning, resulting in his death. . . .
And in Count II, the indictment charged Mallett with child neglect, stating in part:
29
did feloniously while being the parent, legal guardian or caretaker of a child
under the age of eighteen (18) years, to-wit: [Kevin], a child age three (3), did
intentionally, knowingly or recklessly commit acts or omit the performance of
duties which acts or omissions contributed to the neglect of any child by
failing to properly care for and/or properly supervise said child, including
depravation of necessary clothing, shelter, health care or supervision
appropriate to the child’s age, which resulted in substantial harm to said child’s
physical, mental or emotional health. . . .
¶59. Mallett contends that her conviction of manslaughter by culpable negligence in Count
I and her conviction of child neglect in Count II violate her constitutional protection against
double jeopardy. Mallett acknowledges in her brief that this issue was not raised before the
trial court and again asks this Court to consider the issue as a matter of plain error. Mallett
contends that Counts I and II charged the same conduct by Mallett and that the conduct was
limited by the indictment to actions or omissions by Mallett on April 21, 2023. Mallett
concludes her argument on appeal by arguing that “Count [II] properly served as a lesserincluded offense of Count [I]. In other words, it was the neglect charged in Count [II] that
resulted in the death charged in Count [I].”
¶60. The State counters by arguing that Count I required proof that Mallett acted with
culpable negligence, while Count II required proof that Mallett acted intentionally,
knowingly, or recklessly. Further, the State contends that Count I required proof that Mallett
failed to properly supervise Kevin, which resulted in Kevin wandering away from the house
and drowning, while Count II required proof that Mallett deprived Kevin of necessary
clothing, shelter, healthcare, or supervision. Also, the State asserts that Count I requires proof
that Mallett’s acts or omissions caused Kevin’s death, while Count II required only that
Mallett’s conduct resulted in harm to Kevin’s physical, mental, or emotional health. Citing
30
Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975), the State concludes that because
each charge requires proof of an element the other does not, there is no violation of the
prohibition against double jeopardy, even if there is a substantial overlap in the proof offered
to establish the two crimes.
¶61. After our de novo review of the charges and the essential elements of the crimes
charged in Counts I and II, we find that each requires proof of an element the other does not.
Count I required proof that Kevin died, while Count II did not require such proof. Count II
required proof that Mallett was Kevin’s parent and that Kevin was under eighteen years of
age—neither of which is required in Count I. Pursuant to United States v. Dixon, 509 U.S.
688, 704 (1993), the same conduct may be used to support two separate criminal convictions
so long as each of the charges pass the Blockburger test. Because each count required proof
of an element not required by the other, we find Mallett’s claim of double jeopardy fails.
VII. Was Mallett denied effective assistance of counsel at trial?
¶62. In reliance upon Strickland v. Washington, 466 U.S. 668, 686 (1984), Mallett’s new
counsel on appeal lists twenty-eight failures by her trial counsel, which Mallett contends
shows that trial counsel’s performance was deficient and prejudiced her defense. The State
argues that the appellate record is inadequate to allow this Court to review all of Mallett’s
claims in this regard. We agree. In Jones v. State, 432 So. 3d 946, 960 (¶54) (Miss. Ct. App.
2026), this Court stated:
“[G]enerally, ineffective assistance of counsel claims are more appropriately
brought during post-conviction proceedings.” Dartez v. State, 177 So. 3d 420,
422-23 (¶18) (Miss. 2015). “We will reach the merits on an ineffectiveassistance [of counsel] claim only in instances where (1) the record
31
affirmatively shows ineffectiveness of constitutional dimensions, or (2) the
parties stipulate that the record is adequate to allow the appellate court to make
the finding without consideration of the findings of fact of the trial judge.”
Collins v. State, 221 So. 3d 366, 372 (¶19) (Miss. Ct. App. 2016). “This Court
has also resolved ineffective-assistance-of-counsel claims on direct appeal
when the record affirmatively shows that the claims are without merit.”
Carnley v. State, 348 So. 3d 1071, 1079 (¶38) (Miss. Ct. App. 2022).
Because we find that the appellate record is not adequate to decide this issue on direct appeal,
we dismiss this claim without prejudice to Mallett’s right to raise this issue in a timely and
properly filed motion for post-conviction collateral relief, if she so chooses. Id. at 961 (¶62).
VIII. Does cumulative error require reversal of Mallett’s convictions?
¶63. Mallett contends that even if the above assignments of error, taken alone, do not
constitute reversible error, the cumulative effect of all these errors “deprived Mallett of her
fundamental right to a fair trial and warrant reversal.” A similar argument was made in
Morrow v. State, 275 So. 3d 77, 85 (¶31) (Miss. 2019), where the supreme court stated:
Morrow argues that the cumulative effect of multiple errors requires reversal
under the cumulative error doctrine. While harmless error alone is not
reversible, when more than one harmless error occurs at the trial level, the
errors might have the cumulative effect of depriving a defendant of a fair trial.
Wilson v. State, 21 So. 3d 572, 591 (¶58) (Miss. 2009). Because no cumulative
harmless errors require reversal, the cumulative error doctrine is inapplicable.
The cumulative error doctrine is not applicable here; therefore, this issue is without merit.
CONCLUSION
¶64. For the reasons set forth above, we affirm Mallett’s convictions and sentences.
¶65. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS,
McDONALD, LAWRENCE, McCARTY, WEDDLE AND LASSITTER ST. PÉ, JJ.,
CONCUR.
32