author: KING, C.J.,

text:
    Willie Lee MARTIN a/k/a/ Firetruck a/k/a Truck, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01160-COA.
    Court of Appeals of Mississippi.
    May 4, 2004.

      Daniel M. Weir, Jeffery P. Reynolds, Jackson, Benjamin Zachary Wise, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., THOMAS and MYERS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Willie Lee Martin was found guilty of capital murder by the Circuit Court of the First Judicial District of Hinds County. He was sentenced to life imprisonment without the possibility of parole in the custody of the Mississippi Department of Corrections. Aggrieved, Martin has appealed and raised the following issues which are cited verbatim:

I. The jury verdict was contrary to the overwhelming weight of the evidence.
II. The Appellant was denied his constitutional right to a speedy trial.
III. The lower court erred in not allowing defense counsel to inquire into Francis [sic] Diane Coleman’s prior armed robbery conviction.
TV. The trial court erred in permitting the in-court identification of the Appellant after an improperly suggestive station-house lineup.
V. The Appellant was denied a fair trial due to trial counsel’s inability to cross[-]examine or rebut the State’s evidence regarding the corpus delecti
VI. The court erred in failing to grant the Appellant a peremptory instruction at the close of the State’s case on the ground that the corpus delecti had not been proven beyond a reasonable doubt.
VII. The trial court denied the Appellant the basic and fundamental right to confront the witnesses against him as well as the right of cross-examination when it permitted the introduction of the testimony of Dr. Hayne, the state pathologist.
VIII. The Appellant’s right to a fan-trial was presumptively prejudiced when the trial court allowed the jurors to use notes taken during the trial during deliberations.
IX. The lower court erred when it denied Appellant’s motion for a new trial.

FACTS

¶ 2. At trial, Frances Diane Coleman, a co-defendant, testified that on the evening of November 6, 1994, she and Martin picked up Robert Charles Jones and drove to a pool hall operated by Steve Steverson on Moonbeam Street in . Jackson. According to Coleman, Jones and Martin went to the door of the pool hall. Steverson came to the door and Jones put a gun to Stever-son’s back and walked him to the car. Coleman stated that Martin drove the car.; she was on the front passenger seat; and Jones and Steverson were on the back seat.

¶ 3. Coleman testified that Martin told Steverson that he was going to straighten him out about his money. Steverson owed Martin $100. Steverson told Martin that he did not have the money but that he could go to his mother’s house (Millie R. Steverson) to get some money. Martin proceeded to Mrs. Steverson’s house. Upon arrival, Martin told Coleman to go to the door and tell Steverson’s mother that her son owed him $100 and that he would be killed if she did not give him the money. Steverson’s mother came out to the car where Jones was “beating her son with a gun.” She begged for her son’s life and indicated that she would try to get the money.

¶ 4. At this time, Steverson’s sister, Millie O. Steverson, was walking home and saw her mother talking to some people in a car. She testified that she recognized her brother’s voice coming from the back seat, but she never actually saw him. Martin told her that Steverson would be killed if they did not come up with $100. Stever-son’s sister told Martin that she would make a phone call and get the money. Initially, Martin agreed and instructed Coleman to go with Steverson’s sister to make sure that she did not call the police. Martin then changed his mind, instructed Coleman to get back in the car, and drove off.

¶ 5. According to Coleman, Martin drove them to a house on Carol Drive in Jackson. Coleman went inside the house where she remained for approximately ten minutes while Martin, Jones, and Steverson remained outside. Coleman then went outside where she saw Martin and Jones beating Steverson. She testified that Jones was hitting Steverson in the head with a brick while Martin was kicking him in the body. Coleman told Martin that “you all need to stop. [YJou’re gonna end up killing him, and he told me to go back inside of the house.” Coleman further testified that Martin and Jones then put Steverson in the trunk of the car. Coleman stated that Steverson appeared to be unconscious.

¶ 6. According to Coleman, Martin drove them to a bridge where he and Jones got Steverson out of the trunk, took his clothes off, and threw him off the embankment. Coleman stated that Martin said that “he was going to make an example out of Steve.” Coleman then heard a gunshot, but did not see Martin shoot Steverson. When Martin and Jones came back to the car, Martin drove them to another bridge where he gave Coleman the gun and told her “to throw it in the creek.”

¶ 7. On February 15, 1995, Coleman voluntarily turned herself in to the Jackson Police Department and gave a statement describing the events surrounding Stever-son’s death. Coleman was originally charged with capital murder but subsequently accepted a plea bargain, and pled guilty to kidnapping in exchange for her testimony against Martin and Jones.

¶ 8. On March 17, 1995, Johnny Taylor of the Jackson Police Department received a call regarding blocked traffic on Beasley Road. When he arrived at the scene an individual approached him and said “that he thought he had found a body in a creek” on Watkins Drive. Officer Taylor arrived at the location and saw what appeared to be the upper portion of a leg bone on top of a water pipe and a portion of a hand on the embankment. The parts recovered included “the right arm, shoulder blade, a portion of the rib cage on the right side, hips and both legs.” Two days later, a partial skull was found “approximately a half to three-quarters of a mile west” of where the body was located. Although no DNA testing was performed, Dr. Steven Hayne, a forensic pathologist, testified that “with reasonable medical certainty it’s consistent that the skull went with the lower torso.” Dr. Hayne also indicated that he observed a tattoo with the initials “S.S.” on the right arm of the body. Steverson’s mother testified that her son had a tattoo with “two arrows, two hearts and the initial[s] SS on his arm.”

¶ 9. Martin was convicted of capital murder and was sentenced to life imprisonment without parole.

ISSUES AND ANALYSIS

¶ 10. Issues one and nine are interrelated and have therefore been addressed together.

I.

Whether the verdict was against the overwhelming weight of the evidence.

¶ 11. Martin asks that the verdict be set aside and he be granted a new trial because the verdict was contrary to the overwhelming weight of the evidence. Martin asserts that the State’s case “relied heavily on hearsay testimony and questionable opinion evidence.” He also claims that the State’s case was based on “inferences and presumptions.”

¶ 12. Martin maintains that jurors were required to presume that he was in the car the night Steverson disappeared. He further argues that jurors were required to presume that Coleman had no incentive to lie about his presence or role in the incident. Martin claims to be only guilty of “assault” if Coleman’s testimony is to be believed. Martin asserts that jurors would have to presume that he “had no alibi when, in reality, his alibi witnesses had passed away while he awaited trial.”

¶ 13. Our standard of review for claims that a judgment is against the overwhelming weight of the evidence is as follows:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Baker v. State, 802 So.2d 77(¶ 14) (Miss.2001).

¶ 14. The State presented Coleman’s testimony which described the events and identified the persons involved in this matter. However, Martin argues that Coleman’s testimony about his role in the matter is not accurate. Any factual disputes are to be properly resolved by the jury and do not mandate a new trial. Benson v. State, 551 So.2d 188, 193 (Miss.1989). The jury is the sole judge of the credibility of witnesses, and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict. Billiot v. State, 454 So.2d 445, 463 (Miss.1984).

¶ 15. Having reviewed the record, we find that the jury’s verdict was not against the overwhelming weight of the evidence and does not warrant a new trial. This Court finds that this issue is lacking in merit.

. II.

Whether Martin was denied his right to a speedy trial.

¶ 1&. Martin’s attorneys did not make a request for a speedy trial. However, Martin filed a pro se motion to dismiss on December 31, 1997, where he raises the issue of his right to a speedy trial. On pro se petitions, we may give an individual the benefit of the doubt in considering a request for a speedy trial, Myers v. State, 583 So.2d 174, 176 (Miss.1991), even where we have done so, we still require that some effort be made to pursue the request, otherwise the argument will be considered waived. Jones v. State, 776 So.2d 643(¶ 17) (Miss.2000).

¶ 17. In his brief, Martin gives the following chronology of events:

Date Event

10/19/95 indicted

“ 06/17/96 arrested

07/02/96 arraigned

01/18/00 trial

¶ 18. Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) identified four factors which are to be considered in determining whether the right to a speedy trial has been denied: (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant has asserted his right to a speedy trial, and (4) whether the defendant has been prejudiced by the delay. No one factor is dis-positive; rather, they must be considered together on a case by case basis.

¶ 19. Martin claims that he was incarcerated “for a period of at least 542 days from the date of arrest and 512 days from the date of arraignment, with no continuance entered” on his behalf. A party claiming the denial of a right to a speedy trial is obligated to place before the court sufficient information to establish that he was denied a speedy trial and suffered prejudice as a result of that denial. Jones v. State, 776 So.2d 643 at (¶ 17). This information should include the reasons for delay in trial and to whom the delays are attributed. In the absence of some indication of the reason for delay, this Court has no way of attributing the delay to the State or defense. Where information regarding delays is absent in the record, it prevents this factor from being weighed against either party, unless there has been an egregious action by the State. Stokes v. State, 758 So.2d 452(¶ 18) (Miss.Ct.App.2000). The record indicates that several continuances were granted, but does not indicate which party requested the continuances or why they were granted. Because the State has the obligation to bring the defendant to trial, under these facts we weigh the delay ever so slightly against the State.

¶ 20. Martin claims prejudice from the death of an alibi witness. This Court cannot decide an issue based on assertions in the briefs alone; rather, issues must be proven by the record. Medina v. State, 688 So.2d 727, 732 (Miss.1996). On December 31, 1997, Martin filed a motion to dismiss. In that motion, Martin claims that the failure to provide him with a speedy trial was one of the reasons he could not utilize an alibi witness who died prior to trial. In his motion, Martin did not specifically state to what the alibi witness would have testified. He merely stated that he had an aunt who could confirm his whereabouts on the days in question. On October 1, 1998, an order was entered denying Martin’s motion to dismiss. While Martin claims that because of the delay in his trial an alibi witness is now deceased which impaired his defense; without greater specificity, Martin has failed to show actual prejudice which resulted from the delay. Walton v. State, 678 So.2d 645, 650 (Miss.1996). This issue is without merit.

III.

Whether the trial court erred in not allowing defense counsel to inquire into Coleman’s prior armed robbery conviction.

¶ 21. Martin claims that his attorneys were not allowed to delve into Coleman’s prior armed robbery conviction during pretrial motions.

¶ 22. The State made a motion in limine to prevent Martin from eliciting information about Coleman’s prior convictions. The prior convictions were armed robbery and drug convictions. The State argued that the convictions were not probative of the truth and veracity of the witness’s testimony. The State also argued that the robbery conviction was more than ten years old. The trial court determined that there was no compelling reason to allow the convictions to be presented to the jury. The trial court noted that the exclusion of this information was upheld in the co-in-dictee’s case and would therefore be excluded in this matter. Jones v. State, 776 So.2d 643 (¶¶ 27, 28) (Miss.2000).

¶ 23. Mississippi Rule of Evidence 609(a)(b) addresses impeachment by pri- or convictions. If more than ten years have elapsed since the date of the conviction, the court must determine that the probative value of the conviction substantially outweighs its prejudicial effect and the proponent must give advance written notice of intent to the adverse party that such evidence will be used. Id. In the present case, the trial court accepted the State’s argument that the prior convictions were not probative of the truth arid veracity of the witness’s testimony. This Court does not find that the trial court’s exclusion of Coleman’s prior armed robbery conviction was an abuse of discretion.

IV.

Whether the trial court erred in permitting the in-court identification of Martin after an improperly suggestive station-house line-up.

¶ 24. Martin made a motion . to suppress the out-of-court and in-court identification of him by Millie 0. Steverson alleging that the photographic identification testified to by Millie 0. Steverson was impermissibly suggestive and that her subsequent in-court identification should not have been admitted. He claims that the “photo spread was overly suggestive and that any evidence of identification purported to Millie 0. Steverson would be tainted.” Martin asserts that his photograph was the only photograph of the eight photos presented to Ms. Steverson which had a ponytail, and by including only one photograph where a suspect had a ponytail, the photo line-up was impermissibly suggestive.

¶ 25. The State responded to Martin’s objection as follows:-

BY MR. COLLINS:. Millie 0. Steverson is here. It’s the State’s belief that she can independently identify him outside of the lineup. I believe to save time it would be better that just before she’s called this afternoon, we take a few minutes to go into that part of it and then do it. If she cannot identify him, then her testimony would still be relevant and be permissible even though she could not identify him. If she can identify him, then obviously we go forward from that stage, so my suggestion is that we just take a moment at that time and identify.

On direct examination, the State asked Millie 0. Steverson whether she recognized the driver of the car to which she said “yes” and identified Martin.

The admission of evidence rests within the discretion of the trial court. A court must consider five factors in evaluating the validity, reliability and admissibility of identification testimony: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty exhibited by the witness at the confrontation; and (5) the time between the crime and the confrontation.
The standard of review for suppression hearing findings concerning pretrial identification is “whether or not substantial credible evidence supports the trial court’s findings that, considering the totality .of the circumstances, in-court identification testimony was not imper-missibly tainted.... The appellate review should, disturb the findings of the lower court ‘only where there is an absence of substantial credible evidence supporting it.’ ”

Horne v. State, 825 So.2d 627 (¶¶ 31-32) (Miss.2002) (citations omitted).

¶ 26. Having reviewed the record, this Court finds no abuse of discretion in the admission of the evidence presented in this issue.

V.

Whether Martin was denied a fair trial due to defense counsel’s inability to cross-examine or rebut the State’s evidence regarding the corpus delecti.

¶ 27. Martin contends that the State failed to preserve the skull or a tissue sample for subsequent DNA analysis comparison to the torso. In making this allegation, Martin relies on Banks v. State, 725 So.2d 711(¶ 11) (Miss.1997), where the supreme court noted that the State’s duty to preserve evidence is limited to evidence which plays a significant role in the defense of a matter. The significance of the evidence must be apparent prior to destroying the evidence. Id. Additionally, to play a significant role in the defense, comparable evidence must not be obtainable by reasonable means. Id.

¶ 28. Dr. Steven Hayne stated that he did not perform a'DNA analysis, but material was retained to perform a DNA analysis. Dr. Hayne also indicated that at that time, the entire skull was turned over to the coroner. Dr. Hayne’s testimony indicates that an analysis of the tissue from the torso could have been obtained even without the complete skull and torso.

¶ 29. With reference to the skull and torso, unless Martin can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. Wilson v. State, 574 So.2d 1324, 1329 (Miss.1990). The record does not show proof of bad faith. Therefore, this contention lacks merit.

VI.

Whether the trial court erred in failing to grant Martin a peremptory instruction on the ground that the corpus delicti had not been proven beyond a reasonable doubt.

¶ 30. Martin argues that the State failed to prove each element of corpus delicti beyond a reasonable doubt. He asserts that the skull and torso were not conclusively matched to prove the identity or cause of death.

¶ 31. The corpus delicti which the State must show in a homicide case consists of (1) the death of a human being, and (2) a criminal agency causing the death. Hopson v. State, 615 So.2d 576, 579 (Miss.1993). The law does not require an autopsy or medical evidence to establish death. Miskelley v. State, 480 So.2d 1104, 1107 (Miss.1985). These facts are ordinarily proven by witnesses who saw the deceased after his death and testified that the deceased was dead. Id. “The criminal agency or cause of death is usually shown by witnesses who saw the homicide, or by circumstances sufficient to establish the crime to the exclusion of every other reasonable hypothesis.” Id.

¶ 32. In this matter, the State offered Coleman’s testimony that she saw Martin and Jones kicking and beating the victim. Coleman indicated that she warned Martin to stop beating Steverson because he and Jones would end up killing him. According to Coleman, Martin instructed her to get some newspaper to put in the trunk of the car, and Martin and Jones picked up Steverson and put him in the trunk. Coleman stated that they drove over a bridge where Martin and Jones took off Stever-son’s clothes and threw him over the embankment. Martin then indicated that he was going to make an example out of Steverson, after which Coleman stated that she heard a gunshot. The State offered Coleman’s testimony describing the events from Steverson’s abduction until his presumptive death.

¶ 33. The State also presented testimony from Steverson’s mother and sister, who identified Steverson’s tattoo from photographs of the recovered torso.

¶ 34. Dr. Hayne testified that the manner of death was homicide.

¶ 35. Based on the evidence presented, we cannot say that the trial court erred in denying Martin’s instruction that the corpus delicti had not been proven beyond a reasonable doubt.

VII.

Whether the trial court denied Martin his fundamental right to confront witnesses against him.

¶ 36. Martin alleges that Dr. Hayne, the forensic pathologist in this matter, “improperly consulted with and relied upon the opinions of forensic anthropologist, Dr. Ed Waldrup.” Martin maintains that this reliance prevented him from confronting and cross-examining Dr. Waldrup. Dr. Hayne stated that while Dr. Waldrup was present when he performed the autopsy and agreed with his conclusions, he reached his conclusions independently. Dr. Hayne also stated that his determinations were within the field of forensic pathology.

¶ 37. Based on a review of the record, this Court finds no violation of Martin’s fundamental right to confront witnesses as he suggests.

VIII.

Whether the trial court erred by allowing jurors in deliberations to use notes taken during trial.

¶ 38. Martin argues that allowing the jurors to take notes and use their notes during deliberations was prejudicial to his case. Martin cites Wharton v. State, 734 So.2d 985(¶ 23) (Miss.1998), where the supreme court held that “juror notes are permissible, but should not be allowed to be taken by that juror into the jury room during deliberations.”

¶ 39. In this matter, a juror asked the trial judge whether note-taking would be allowed. The trial judge responded by indicating that he would allow the jurors to take notes but that the notes would be allowed for the specific use and reference of the juror writing the notes. The trial judge indicated that the notes would not be binding on any other juror.

¶ 40. The trial court gave instruction C-6 regarding the notes taken by the jurors. Instruction C-6 states:

I have observed that some of you have been taking notes throughout the trial. It is proper and permissible under our law for jurors to take notes; however, they are to be used only by the juror who takes them as an aid to his or her memory, because each of you must recall the testimony as best you can. The notes are not binding on other jurors and should not be used as authoritative records to show other jurors, but only as an aid to the memory of the person who took them.

When this instruction was given, no objection was made by the defense. Had there been a contemporaneous objection to this instruction, it would have been considered an error at that time. The failure to make a contemporaneous objection to a jury instruction waives this issue for the purposes of appeal. Smith v. State, 724 So.2d 280 (¶ 143) (Miss.1998). A trial judge will not be found in error on a matter not presented to him for decision. Id. Additionally, Lentz v. State, 604. So.2d 243, 249 (Miss.1992), states that even where error has occurred, we will not reverse a conviction when the overwhelming weight of the evidence supports the guilty verdict.

¶ 41. However, Uniform Circuit and County Court Rule 3.14, adopted effective April 18, 2002, grants the trial court the discretion to allow note-taking by jurors and their use in deliberation. This should be considered harmless error.

¶ 42. This Court finds the error to be harmless and affirms the trial court’s decision.

¶ 43. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

BRIDGES, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR. SOUTHWICK, P.J., NOT PARTICIPATING.

      . Mississippi Rule of Evidence Rule 609(a)(b) provides: (a) General Rule. For the purpose of attacking the credibility of a witness,
      (1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party; and
      (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.
      (b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by the specific facts and circumstances. substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to .use such evidence to provide the adverse party with a fair, opportunity to contest the use of such evidence.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Timothy DUPUIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-00183-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.

      Joseph A. Fernald, Brookhaven, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

GRIFFIS, J.,

for the Court.

¶ 1. The Appellant’s motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted.

¶2. Timothy Dupuis was convicted of touching a child for lustful purposes, Miss. Code Ann. § 97-5-23(1) (Rev.2000). Aggrieved by the judgment of conviction, Du-puis appeals the verdict and seeks relief in the form of a reversal of the jury’s verdict and acquittal. Finding no error, we affirm.

FACTS

¶ 3. On Easter Sunday, April 15, 2001, Bob and Susan Smith’s two daughters spent the night with his sister, Nancy Du-puis, and her husband, Timothy Dupuis. The Dupuises had two children living with them, a teenage son and a young boy. Nancy and Timothy Dupuis slept in their bedroom and the Smith girls along with the Dupuises’s youngest son slept in the living room. At some point in the evening, the Dupuises’s oldest son came home and he slept in his room.

¶ 4. The next morning around 5:30 a.m., Bob Smith received a telephone call. It was his oldest daughter, Jenny, who was under the age of fourteen. She asked to speak to her mother. When Susan took the phone, her daughter was crying and told her that, “Uncle Tim messed with me.” Susan immediately went to the Du-puises’s home and found Jenny wrapped in a blanket crying. Susan woke the other children and Nancy Dupuis, and she explained what had happened. Susan called the police and her husband and told them to meet her at the hospital.

¶ 5. When they arrived at the hospital, Jenny was interviewed and examined by a nurse and then a doctor. She told the nurse that “her uncle messed with her this morning.” Jenny told the nurse that she woke up on the couch and her uncle was rubbing her back and legs telling her she was beautiful. She said that she pretended to be asleep and he told her to spread her legs so he could feel her. Jenny told the nurse, “he started rubbing my thing and put his fingers up in me and -moved them around.” The doctor examined Jenny, and she told him what happened. He performed a pelvic examination and a urinalysis. Neither of .these test revealed any abnormalities or traüma.

¶ 6. Jenny was also interviewed by a counselor at the Children’s Advocacy Center in McComb. Again, Jenny identified Dupuis and told' the counselor he had “messed with her.”

¶ 7. Based on Jenny’s testimony, Timothy Dupuis was indicted for the crime of sexual battery, pursuant to Mississippi Code Annotated Section 97-3-95. At trial, the jury heard testimony from several witnesses for the State including the medical staff who examined Jenny, her counselor, her mother and Jenny herself. Jenny testified that Dupuis, “stuck his fingers inside my panties, inside of my private, with his finger.” Dupuis testified in his own defense along with his older son. Dupuis stated that he did not touch Jenny or molest her.

¶ 8. Both the State and Dupuis submitted a jury instruction on the form of the verdict. Both, instructions asked the jury to decide whether Dupuis was guilty of sexual battery, guilty of touching and handling a child for lustful purposes, or not guilty. The court granted the State’s version of the form of the verdict instruction and denied Dupuis’ instruction, finding it a duplicate of the State’s instruction. The jury found Dupuis guilty of touching a child for lustful purposes, pursuant to Mississippi Code Annotated § 97-5-23(1) (Rev.2000), and he was sentenced to a term of fifteen years in the custody of the Mississippi Department of Corrections.

¶ 9. Dupuis appeals to this Court asserting that (1) the verdict is against the overwhelming weight of the evidence and contrary to the instruction of law; (2) the State violated a motion in limine and the Mississippi Rules of Evidence by trying to elicit testimony of prior bad acts of Mr. Dupuis; and (3) no physical evidence or corroborating medical evidence existed to support the allegation of touching for lustful purposes. Since issues one and three challenge the weight of the evidence, they will be discussed together. On rehearing, Dupuis argues that it was plain error for the court to convict him of a crime for which he was not indicted.

ANALYSIS AND DISCUSSION OF LAW

I. Whether the verdict is against the overwhelming weight of the evidence and contrary to the instruction of law as given by the court.

¶ 10. Dupuis alleges the evidence presented by the prosecution could not have supported a guilty verdict. He asserts that no physical evidence was presented to support the assault, and the verdict was based entirely on the testimony of the victim and her report to the social worker. The Mississippi Supreme Court has often held that issues regarding the weight and credibility of evidence he with the jury. Eakes v. State, 665 So.2d 852, 872 (Miss.1995). We will reverse only where the evidence, ás to at least one of the elements of the crime charged, is such that a reasonable and fair minded juror could not find the accused guilty. Id. This Court will order a new trial only when it is convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow it would sanction an unconscionable injustice. Id. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court accepts as true all evidence which supports the verdict and will reverse only when convinced that the trial court has abused its discretion in failing to grant a new trial. Id.

¶ 11. The record indicates Dupuis filed a motion for a new trial which challenged the sufficiency of the evidence. Dupuis states in his brief the trial court denied the motion on February 4, 2002. However, the record does not show that the trial court ever entered an order denying Dupuis’s motion for a new trial. Additionally, it appears from the trial transcript that Dupuis made a motion for a directed verdict at the end of the prosecution’s case, but failed to renew his motion at the conclusion of the presentation of evidence.

¶ 12. In Harris v. State, 413 So.2d 1016, 1018 (Miss.1982), the supreme court held:

It is elemental that after a motion for directed verdict is overruled at the conclusion of the State’s evidence, and the appellant proceeds to introduce evidence in his own behalf, the point is waived. In order to preserve it,' the appellant must renew his motion for a directed verdict at the conclusion of all the evidence.

¶ 13. If any error existed in the court’s refusal to grant Dupuis a directed verdict at the close of the State’s case-in-chief, Dupuis waived it when he proceeded to present evidence on his behalf. Because Dupuis did not renew this motion by way of a motion for a directed verdict at the conclusion of the evidence or by a motion for a peremptory instruction, any objection he had to the sufficiency of the evidence was waived. Id.

¶ 14. Furthermore, while an order denying the motion for a ■ new trial was entered by the trial court, Dupuis admits that the trial court did in fact deny the motion on February 4, 2002. It is the responsibility of the movant to obtain a ruling on all motions filed by them, and the failure to obtain a ruling constitutes a waiver.. Martin v. State, 354 So.2d 1114, 1119 (Miss.1978). Consequently, this assignment of error is not properly before this Court.

II. Whether the state violated a motion in limine and the Mississippi Rules of Evidence by trying to elicit testimony of prior bad acts.

¶ 15. Dupuis asserts that a motion in limine was filed to exclude any mention of a prior conviction; however, no ruling on the motion was included in .the record on appeal. As stated earlier, it is the Appellant’s duty to obtain a ruling on his motion and to present a record which adequately reflects the alleged error. Presumably, the judge ruled on the motion; we simply do not have the benefit of his findings. “In absence of anything in the record appearing to the contrary, this Court presumes that the trial court acted properly.” Moawad v. State, 531 So.2d 632, 635 (Miss.1988).

¶ 16. From Dupuis’s brief, he contends the State tried to introduce testimony about his prior bad acts through questioning him about why his daughter no longer lives with him. He also claims the State tried to elicit this evidence from his oldest son when they cross-examined him. With regard to Dupuis’s testimony, the record shows that while his attorney objected to “the form of the question,” he did not specifically state his objection on the record, nor did he base his objection on any rule violation or motion in limine. With regard to the testimony of his son, Dupuis objected to “the line of questioning.” He never stated any rule violation' nor mentioned the motion in limine.

¶ 17. A timely objection stating the specific ground of objection is required under M.R.E. 103(a) if error is to be predicated upon a ruling which admits evidence. Oates v. State, 421 So.2d 1025, 1030 (Miss.1982); Edwards v. State, 723 So.2d 1221, 1231(¶ 38) (Miss.Ct.App.1998). We find that Dupuis failed to properly preserve the alleged error for appellate review.

¶ 18. Furthermore, even if Dupuis made a proper objection, questions about where Dupuis and his son lived, who lived with them, how many family members each had were asked on direct examination. Also, questions were asked as to who was present in the home the morning of the incident. Therefore, the State was allowed to explore the reasons for the answers on cross-examination. Moreover, Dupuis’s prior conviction was for indecent exposure. Questions by the State concerning Dupuis’s daughter are unrelated to this conviction. We fail to see how this line of questioning would have violated the motion in limine or any rule of evidence. The trial judge’s decision overruling Dupuis’s objections was proper. We find no error and affirm. -

TV. Whether it was plain error for the court to convict Dupuis of the crime of touching and handling a child for lustful purposes when he was indicted for sexual battery.

¶ 19. On rehearing, Dupuis argues that it was plain error for the trial court to convict him under the unlawful touching statute (Mississippi Code Annotated Section 97-5-23(1) (Rev.2000)) when he was indicted for the crime of sexual battery (Mississippi Code Annotated Section 97-3-95 (Rev.2000)).

¶ 20. Here, Dupuis’s counsel made no objection to the State’s form of the verdict instruction or to the State’s instruction that discussed the elements necessary to prove that Dupuis was guilty under the unlawful touching statute. We have held many times that if no contemporaneous objection is made, the error, if any, is waived. Walker v. State, 671 So.2d 581, 597 (Miss.1995). Dupuis’ failure to object would normally bar the assignment of error on appeal. However, “[t]he defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal.” Foster v. State, 639 So.2d 1263, 1289 (Miss.1994). Dupuis contends that it was plain error for the court to convict him of a crime for which he was not indicted.

¶ 21. Dupuis relies on the following language from Box v. State, 241 So.2d 158, 159 (Miss.1970):

Before a person may be punished on a felony charge the court must have jurisdiction of the charge and the person.... It is the indictment by a grand jury that gives the court jurisdiction of a felony charge and without an indictment the court has no jurisdiction to proceed in a felony ease.

Box, however, was overruled by the Mississippi Supreme Court in Jefferson v. State, 556 So.2d 1016, 1021 (Miss.1989).

¶ 22. Recently, in Pittman v. State, 836 So.2d 779, 786 (¶ 32) (Miss.Ct.App.2002), we held:

The Supreme Court recently examined whether there are lesser-included offenses to statutory rape and concluded that there might not be. “The lustful touching of a child under fourteen is not necessarily a lesser included offense of statutory rape. Lustful touching is, however, a lesser related offense.” Richardson v. State, 767 So.2d 195, 200 (Miss.2000). The elements of a lesser, non-included offense are not all contained in the greater. Therefore, such an offense is not automatically charged in an indictment charging the greater. Miss.Code Ann. § 99-19-5 (Rev.2000). When a defendant requests a lesser non-included offense instruction, the absence of an indictment on that offense is waived. Griffin v. State, 533 So.2d 444, 448 n. 2 (Miss.1988).

¶ 23. In Friley v. State, 856 So.2d 654, 656(¶ 6) (Miss.Ct.App.2003), this Court held that unlawful touching is not a lesser-included offense of sexual battery. However, in Friley, Raymond Friley was indicted for sexual battery, and the State offered jury instructions on the crimes of sexual battery and unlawful touching. Id. at 655(¶ 5). The court allowed both instructions to be given and held that unlawful touching was a lesser-included offense of sexual battery. Id. at 656(¶ 6). Friley objected to this instruction. Id. at 657(¶ 13). This Court reversed and rendered, finding “no reason or legal authority to allow this lesser offense instruction. The prosecutor and the trial court confused the jury by allowing them to consider an erroneous instruction. We find that to allow Friley to be convicted of a crime for which he was never charged would create an injustice.” Id. at 656(118).

¶24. The difference in the outcome of Friley and this case is due to our holding in Pittman. Here, Dupuis submitted an instruction that allowed the jury to consider unlawful touching as a lesser offense. In Friley, this Court determined that the defendant objected to the instruction. Id. at 657(¶ 13). Here, Dupuis did not object. Instead, Dupuis offered an instruction on the form of verdict that asked the jury to determine whether he was (a) guilty of the crime of sexual battery, (b) guilty of the lesser crime of touching and handling a child for lustful purposes, or (c) not guilty. It is apparent that Dupuis decided, as a matter of trial strategy, that he wanted the jury to have the option of finding him guilty of the lesser offense of unlawful touching. Accordingly, the lack of an indictment on the offense of unlawful touching was waived. Pittman, 836 So.2d at 786 (¶ 32).

¶ 25. In Brady v. State, 722 So.2d 151, 160-161 (¶ 38) (Miss.Ct.App.1998), we held:

In Gangl v. State, 539 So.2d 132, 136-37 (Miss.1989) the Mississippi Supreme Court stated that the evidentiary standards for granting a lesser-offense instruction and a lesser-included offense instruction are the same. That court stated:
The better rule in cases such as this is that the defendant may request an instruction regarding any offense carrying a lesser punishment if the lesser offense arises out of a nucleus of operative fact common with the factual scenario giving rise to the charge laid in the indictment. See Griffin v. State, 533 So.2d 444, 447-48 (Miss.1988).
Of course, lesser offense instructions should not be granted indiscriminately, and only where there is an evidentiary basis in the record, (citations omitted). The evidentiary standard is the same as for lesser included offense instructions, and is laid out in Harper v. State, supra, [478 So.2d 1017] at 1021 [(Miss.1985)]. Consequently, where as in the instant case, the evidence warrants it, the accused is entitled as a matter of right, upon proper request, to a lesser offense instruction the same as he would be entitled to a lesser included offense instruction. Griffin v. State, supra.

¶ 26. Here, there was a common nucleus of operative facts and the record contained an evidentiary basis for the court to grant an instruction on the lesser offense of unlawful touching. Dupuis offered an instruction that would allow the jury to find him guilty of a lesser offense. Accordingly, the trial court did not commit plain error when it granted Dupuis the lesser offense instruction, which he was entitled as a matter of right.

¶27. Therefore, we find no error and affirm.

¶ 28. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF TOUCHING A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN YEARS, TO SERVE THE FIRST 168 MONTHS CONSECUTIVELY AND DAY-FOR-DAY, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND THE REMAINING ONE YEAR SUSPENDED FOR FIVE YEARS’ PROBATION AND A $5,000 FINE IS AFFIRMED. COST OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES, AND . SOUTHWICK, P.JJ., THOMAS, LEE, MYERS AND CHANDLER, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.

      . Mississippi Code Annotated Section 97-5-23(1) has been identified and referred to by many different names. Regardless of whether it is described as the unlawful touching statute, the molestation statute, the child fondling statute, or the gratification of lust statute, Section 97-5-23(1) makes it unlawful for:
      Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child's consent, ..., shall be guilty of a felony and, upon conviction thereof, shall ... be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years,....

      . The names of the victim and her family have been changed in this opinion to protect their identity.

      . Under the sexual battery statutes, Mississippi Code Annotated Section 97-3-95 et seq., Dupuis faced "life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years.” Miss.Code Ann. § 97-3-101(3)(Rev.2000). Under the unlawful touching statute, Dupuis faced imprisonment of "not less than two (2) years nor more than fifteen (15) years.” Miss.Code. Ann. § 97-5-23(1) (Rev.2000).


author: BRIDGES, P.J.,

text:
    Jeff BOONE, Appellant, v. HERCULES, INC., Appellee.
    No. 2003-CP-01252-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.

      Jeff Boone, Appellant, pro se.
    Dorrance Aultman, Gulfport, Chadwick Lester Shook, attorneys for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   BRIDGES, P.J.,

for the Court.

¶ 1. Jeff Boone filed his initial complaint in the Circuit Court of Lamar County, Mississippi, and Hercules, Inc.’s motion for summary judgment was granted after the completion of discovery. Boone was allowed to supplement his complaint and offerings of proof by the trial judge but a second summary judgment was granted.

¶ 2. This Court will not rely on the brief and reply brief of Jeff Boone for this appeal due to Boone’s failure to comply with the proper format as specified under Rule 28(c) of the Mississippi Rules of Appellate Procedure and his failure to cite any legal authority whatsoever supporting his arguments as required under Jones v. Howell, 827 So.2d 691, 702(¶ 40) (Miss.2002). This Court will consider the issues on appeal of its own accord and rely upon its own legal analysis of those issues. Boone’s appeal is now considered on the following issue:

STATEMENT OF THE ISSUES

¶ 3. Hercules, in disagreement with the numerous and varied issues appealed by Boone in his pro se brief, submitted a singular issue for the court to consider on appeal as allowed under Rule 28(b) of the Mississippi Rules of Appellate Procedure. This court will consider the singular issue raised by Hercules.

I. WHETHER THE TRIAL COURT’S ORDER GRANTING HERCULES SUMMARY JUDGMENT SHOULD BE AFFIRMED?

FACTS

¶ 4. Boone and Hercules had entered into numerous harvesting contracts over the course of their business relationship. Boone brought a breach of contract action against Hercules after Hercules failed to give the stumps and pinewood hauled in by Boone the highest possible grade. The price per load is determined by the grade level of the load. Pursuant to the contract entered into by the parties, the determination of the grade can be done by either a visual inspection method or by reliance on the rosin content. Boone claims the determination of the load’s grade by visual inspection is inaccurate and should be discredited by the court.

¶ 5. Boone was represented by counsel at all times until the filing of this appeal. The first motion for summary judgment was granted in favor of Hercules because the contract terms between the parties were clear and unambiguous and Boone could not establish proof of a contract breach. The trial court allowed Boone an additional sixty days to secure expert testimony establishing a question of fact. After this additional time Boone filed two affidavits and amended his complaint.

¶ 6. The trial court did not find the amendments by Boone sufficient to establish or create a genuine issue of material fact primarily because one of Boone’s affi-ants was a disgruntled ex-Hercules employee who was indicted for defrauding it. Therefore, the second motion for summary judgment was granted in favor of Hercules.

ANALYSIS

¶ 7. In reviewing orders of summary judgment, this Court proceeds de novo. Cities of Oxford v. Northeast Miss. Elec. Power Ass’n, 704 So.2d 59, 64(¶ 10) (Miss.1997). If the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, this Court will not reverse. M.R.C. P. 56.

I. WHETHER THE TRIAL COURT’S ORDER GRANTING HERCULES SUMMARY JUDGMENT SHOULD BE AFFIRMED?

¶ 8. The trial judge in his order held the terms of the contract to be unambiguous, that Boone failed to prove a breach occurred and that Boone failed to prove any actual damages other than speculative damages. The judge reasoned that according to the proof given by Boone the jurors would have to determine all loads delivered to Hercules by Boone would have to be “A-grade” in order for there to be actual damages. Boone presented no evidence of the grade of his loads of stumps but would require the jury to infer this in conjunction with their finding Hercules did not assign grades to the stumps in good faith.

¶ 9. The requisite proof for determining damages is that “they may be recovered only where and to the extent that the evidence removes their quantum from the realm of speculation and conjecture and transports it through the twilight zone and into the daylight of reasonable certainty.” Sentinel Industrial Contracting Corp. v. Kimmins, 743 So.2d 954, 966-67(¶ 32) (Miss.1999) (citing Wall v. Swilley, 562 So.2d 1252, 1256 (Miss.1990)). “The rule that damages, if uncertain, cannot be recovered, applies to their nature, and not to their extent. If the damage is certain, the fact that its extent is uncertain does not prevent a recovery.” Id. (citing Bill-ups Petroleum Co. v. Hardin’s Bakeries Corp., 217 Miss. 24, 37, 63 So.2d 543, 548 (1953)). Boone’s damages are more than speculative but are also contingent upon the jury’s determination that Hercules did not act in good faith.

¶ 10. Boone does not offer evidence proving the contract between the parties was misconstrued or even inaccurate to the agreed upon terms. The only evidence offered by Boone was the testimony of a disgruntled ex-employee and his opinion that the method of determining the grade was inaccurate, neither of which were sufficient to create a question as to an issue of material fact.

¶ 11. We will not consider any allegations Boone makes against his former attorney, but rather will allow those to be considered with Boone’s complaint to the Mississippi Bar since they have no bearing on the outcome of this case.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., THOMAS, LEE, IRVING, MYERS, AND CHANDLER, JJ., CONCUR. SOUTHWICK, P.J., CONCURS IN RESULT ONLY. GRIFFIS, J., NOT PARTICIPATING.


text:
    Jeffrey JOHNSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-00541-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.
    Michael Duane Mitchell, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   BRIDGES, P.J.,

for the Court.

¶ 1. Jeffrey Johnson was indicted for the crime of burglary of an occupied dwelling in violation of Mississippi Code Annotated section 97-17-23 (Rev.2000). In the Circuit Court of the Second Judicial District of Jones County, a trial was held and the jury returned a verdict of guilty. Johnson was then sentenced to a term of twenty five years in the custody of the Mississippi Department of Corrections, with fifteen years suspended. Johnson’s motions for judgment notwithstanding the verdict and for new trial were denied and now he appeals to this Court on the following issue:

STATEMENT OF THE ISSUE

I. DID THE TRIAL COURT ERR IN FAILING TO GRANT A NEW TRIAL BASED UPON THE IMPROPER ADMISSION OF AN EXHIBIT INTO EVIDENCE AFTER BOTH THE STATE AND DEFENSE HAD RESTED AND THE JURY WAS IN DELIBERATION?

FACTS

¶ 2. In February of 2002, after responding to a call, the Laurel Police Department found Johnson in the home of Aquarious Lindsey. Apparently Johnson had climbed into the second floor bedroom of the home while Ms. Lindsey was downstairs. The police recovered some money and a lady’s ring from Johnson but Ms. Lindsey never identified them as belonging to her. Then the police brought Johnson into custody where he confessed to the crime while being videotaped.

¶ 3. During the trial the videotape and a transcript of the tape were shown to the jury. The videotape was properly identified and admitted into evidence while the transcript of the tape was only identified and not admitted. Since the transcript was not admitted into evidence it was not in the jury room when deliberations began. While deliberating, the jury requested the transcript and Judge Billy Joe Landrum, over the objection of defense counsel, allowed the admission of the transcript into evidence and into the jury room after the close of both parties’ case in chief.

ANALYSIS

I. DID THE TRIAL COURT ERR IN FAILING TO GRANT A NEW TRIAL BASED UPON THE IMPROPER ADMISSION OF AN EXHIBIT INTO EVIDENCE AFTER BOTH THE STATE AND DEFENSE HAD RESTED AND THE JURY WAS IN DELIBERATION?

¶ 4. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss.1997). “Ordinarily, the reopening of a case after it has been submitted to the jury and before verdict for the purpose of receiving further evidence is a matter addressed to the sound judicial discretion of the trial court.” Sturdivant v. State, 745 So.2d 240, 243(¶ 15) (Miss.1999) (citing Lee v. State, 201 Miss. 423, 29 So.2d 211 (1947)). “This rule imports a requirement that a cogent reason be found to exist which demands reopening in order that justice may be done. Moreover, when a case is reopened for the reception of further evidence, it must be done in such a manner that the rights of all parties will be protected and ample opportunity afforded them for cross examination or rebuttal, and even for requesting additional instructions, if the matters introduced should reasonably require them.” Perkins v. State, 253 Miss. 652, 178 So.2d 694, 696 (1965).

¶ 5. In Lee v. State, 383 So.2d 821(Miss.1980), this Court allowed the State to reopen its case. The jury had retired and took into the jury room, along with other physical evidence, State’s Exhibit A, an investigative report. The jury discovered that page three of the report was missing, and so informed the trial judge, who ordered the cause to be reopened to explain the omission. The agent testified that the page was inadvertently omitted. Lee’s counsel was afforded an opportunity to cross-examine and did engage in lengthy cross-examination of the agent. This Court determined that the trial judge did not abuse his discretion in reopening the case for this one purpose, and there was no indication that Lee was prejudiced by such action. Id.

¶ 6. The case at hand is similar to Lee in that no wholly new substantive evidence was permitted after the close of arguments. In Lee the court allowed an additional page to be admitted in order to make the report complete. The transcript the judge allowed in this case had already been seen by the jurors and the tape from which it was made was properly introduced into evidence and available for the jurors to see. No new information whatsoever was given to the jury by allowing this transcript to be admitted.

¶ 7. The objection to the admission by Johnson was that the transcript was not made by someone present during the taping of the confession and that in fact the tape was made by someone without personal knowledge of the confession. Judge Landrum in his response to this objection noted that Johnson did not object that the transcript was inaccurate or incorrect when it was initially shown to the jury and therefore allowing the transcript to be admitted into evidence was simply a housekeeping matter. Johnson remarked that he failed to object because the transcript was never offered for admittance.

¶ 8. The Court has viewed the tape and the voices are clear and audible so inaccuracies would be noticeable to the jurors and anyone. Any error which may occur through an inaccurate transcript would be harmless. The Court concludes that allowing the transcript into evidence was done for a cognitive reason and was done in such a way that the rights of neither party were infringed. The Court finds it was not an abuse of discretion to allow the transcript to be admitted into evidence after jury deliberations had begun.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF CONVICTION OF BURGLARY OF AN OCCUPIED DWELLING AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIFTEEN YEARS SUSPENDED IS AFFIRMED. ALL COSTS ARE ASSESSED TO JONES COUNTY.

KING, C.J., SOUTHWICK, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    John W. SANDERSON, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-00539-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.

      John R. White, McComb, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   BRIDGES, P.J.,

for the Court.

¶ 1. John W. Sanderson, Jr. was indicted by the Alcorn County grand jury on one count of sexual battery and one count of statutory rape. Sanderson was later tried and found guilty. He was sentenced to a term of life and twenty years, respectively, in custody of Mississippi Department of Corrections. It is from that conviction and sentence, he now appeals to this Court.

¶ 2. The appellant’s issues are stated verbatim.

STATEMENT OF THE ISSUES

I. THE JURY VERDICT IN THIS CASE WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

II. TRACY JOHNSON’S TESTIMONY REGARDING THE ALLEGED ASSAULT CHANGED FOLLOWING NUMEROUS UNSUPERVISED VISITATIONS BY DEBBIE JOHNSON.

III. THE TRIAL COURT ERRED IN ADMITTING HEARSAY STATEMENTS PURSUANT TO MISSISSIPPI RULES OF EVIDENCE 803(25) SINCE ADMITTED STATEMENTS WERE NOT SPONTANEOUS AND DID NOT HAVE SUFFICIENT INDICIA OF RELIABILITY.

FACTS

¶ 3. On February 9, 2001, the victim, Lulu, a ten year old, was residing in Alcorn County with her mother, Annie Sue; her mother’s boyfriend, John W. Sanderson, Jr., the defendant; her brother, Elmo.; her half sister, Betty Lou; and her step brother, Kermit. During the night of February 9th or early morning hours of February 10, 2001, Alcorn County police officers were called to the Sander-son home. The call, concerning a domestic dispute, was made by the victim’s mother from a neighbor’s home. Alcorn County police officers responded to the call and later transported Annie Sue and her children, Elmo, Betty Lou and Lulu to the sheriffs office.

¶ 4. The sheriffs office summoned Debbie Gann, a social worker from the Department of Human Services (DHS). According to the record, Annie Sue informed police and Gann that she and Sanderson had been in a fight and that she had packed her clothes to leave. Annie Sue stated that Sanderson told her she could not leave unless she had sex with his fifteen-year-old son, Kermit, and he (Sander-son) had sex with Annie Sue’s ten-year-old daughter, Lulu. Annie Sue said that she did have sex with Kermit and that Sander-son touched her daughter, Lulu, in her vagina with his tongue and “put his penis in her.” She also admitted that she was in the room with Sanderson and her daughter when the act occurred. Annie Sue and Lulu were immediately transported to Magnolia Hospital emergency room where an examination and rape kit was performed on Lulu by medical personnel including Dr. Glen Bennett and nurse Tila Johnson. Dr. Bennett’s report stated that he saw no evidence of sexual abuse and that Lulu had no trauma to the vaginal area.

¶ 5. Lulu, Elmo, and Betty Lou were taken into the custody of the Department of Human Services on February 10, 2001 and were later placed in foster care. During the investigation of the case, Annie Sue was allowed unlimited, unsupervised visitation with Lulu at the DHS offices. Over the next several months and during the time Annie Sue was making unsupervised visits to Lulu, Lulu began adding details of the assault which were inconsistent with her initial statements.

¶ 6. On approximately April 19, 2001, Gann transported Lulu to' the Mantachie Clinic for an evaluation by Dr. Linda Chi-dester.

¶ 7. John Sanderson, Jr., was charged with one count of sexual assault and one count of statutory rape on January 8, 2002. During trial, which took place on February 10-13, 2003, Lulu, who was twelve years old at the time of trial, testified that on the date and place in question, she saw Sand-erson, “put his private, in my mama’s private.” Sanderson then turned his attention to Lulu, who “went under the bed” and then tried “to go through the door.” Sanderson slapped both Annie Sue and Lulu. Lulu also testified that Sanderson “put his tongue in my private and licked it.” He then put his “private” into her “private,” causing her pain.

¶ 8. Betty Lou, who is two years younger than Lulu, testified at the trial that she saw Lulu, Annie Sue and Sanderson in Annie Sue’s bedroom that afternoon. She also stated that at one point she heard Lulu “screaming and crying” and that Lulu seemed to be “upset” for the rest of the day and night.

¶ 9. Debbie Gann, the social worker and investigator for DHS, testified that she first interviewed Lulu who was “a small little ten-year old girl” who “had a speech problem ... and ... hearing aids.” Gann testified that Lulu told her that Sanderson “had pulled her pants down, that he had tried to hurt her, that he touched her with his month[mouth] and with his tongue and that he touched her with his penis.” Subsequently, Annie Sue confirmed Lulu’s story, and added the details concerning Hermit. Gann stated that “during the next two months that the children were in [the] custody” of DHS, Lulu “continued to tell her the same thing.” Over the course of these weeks, Lulu “had gotten to know” Gann and “was a little more comfortable” talking to her. Because of Lulu’s persistence about incident, Gann “made an appointment with Dr. Linda Chidester for a sexual abuse exam” for Lulu.

¶'10. Dr. Chidester, accepted by the court as an expert in the field of family medicine with specialized knowledge and training in the field of child sexual abuse, had interviewed Lulu and performed a physical examination on her. Lulu told Dr. Chidester that Sanderson “touched her vaginal area” with what “was between his legs,” and that “[i]t felt bad and she cried.” Dr. Chidester observed that Lulu’s hymen was “completely torn all the way through at five o’clock.” Her vaginal opening was approximately fifteen millimeters, fifty percent larger than the average for her age. When she was asked whether she had an opinion based on reasonable medical certainty that Lulu had been sexually penetrated, Dr Chidester answered, ‘Tes, I do.” Asked to give that opinion, she testified, “that [Lula] was vaginally penetrated. And based on her physical exam, there is no question that she was vaginally penetrated. Based on her history, it was the result of her being molested.”

¶ 11. On cross-examination, Dr. Chides-ter testified that she believed Lulu had been sexually abused although she could not state the time frame for any alleged abuse. Additionally, Dr. Chidester admitted that she failed to properly fill out her forms regarding the examination. She could state only that the penetration did not occur within approximately twenty-four hours of the date of the exam. Dr. Chidester’s inventory of behaviors, associated with sexual abuse and physical examination, indicated no evidence of sexual abuse with the exception of what she perceived to be a slight tear in the victim’s hymen. Additionally, approximately ninety-six percent of patients with questionnaire results similar to Lulu’s would be confirmed non-abused.

¶ 12. Missy Jackson, a social worker, conducted a forensic interview of Lulu on June 28, 2001. Jackson recounted this interview at trial as follows, in pertinent part:

When asked why she was taken out of her home, she bowed her head and softly stated, ‘one night in mom’s room, dad hurt me.’ When asked who she meant when she said dad, she stated John. When asked how John hurt her, she stated, ‘daddy pulled my pants down.’ When asked to tell me more, she stated, ‘he told me to pull my pants down, but he pulled them down. Mom held my hand while my dad pulled my pants down. He kept hurting me. ■ -
She was sobbing, very distraught. At one point in the interview I had to stop the questioning ....

¶ 13. Ana Paunovic, who was accepted by the court as an expert in the field of molecular biology and forensic DNA analysis, also testified at the trial. She testified that, in her expert opinion, the genetic profile of the sperm extracted from Lulu’s panties was “consistent with the suspect as the major contributor.”

¶ 14. Additionally, Sanderson and his son, Kermit, both testified that the story alleged by Annie Sue regarding the events of February 9, 2001, was false. Sanderson testified that he did not engage in any sexual conduct with Lulu. Kermit testified that he was not forced and did not have sexual intercourse with Annie Sue.

¶ 15. Following the trial, Sanderson was found guilty on both counts of the indictment and sentenced to life and twenty years in the Department of Corrections.

ANALYSIS

I.THE JURY VERDICT IN THIS CASE WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 16. Sanderson argues that the jury’s verdict was against the overwhelming weight of the evidence and he believes that there would be a serious miscarriage of justice if the verdicts were allowed to stand.

¶ 17. The Mississippi Supreme Court has held that “[t]he jury is charged with the responsibility of weighing and considering the conflicting evidence and credibility of the witnesses and determining whose testimony should be believed.” McClain v. State, 625 So.2d 774, 781 (Miss. 1993).' This Court will reverse only for an abuse of discretion and, on review, will accept as true all evidence favorable to the' State. Id. “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that - to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Collins v. State, 757 So.2d 335, 337(¶5) (Miss.Ct.App.2000) (quoting Dudley v. State, 719 So.2d 180, 182 (¶ 8) (Miss.1998)).

¶ 18. In the present case, the jury heard the witnesses and the evidence and arguments presented by both the State and the defense. The question of Sander-son’s guilt was for the jury to decide. The jury’s decision to believe the State’s evidence and witnesses was well within its discretion. Moreover, the jury was within its power to weigh the evidence and the credibility of the witnesses’s testimony and to convict Sanderson. The jury verdict was not so contrary to the overwhelming weight of the evidence that, to allow it to stand, would have been to promote an unconscionable injustice.

II. TRACY JOHNSON’S TESTIMONY REGARDING THE ALLEGED ASSAULT CHANGED FOLLOWING NUMEROUS 'UNSUPERVISED VISITATIONS BY DEBBIE JOHNSON.

¶ 19. This statement does not raise a question for appellate review.

III. THE TRIAL COURT ERRED IN ADMITTING HEARSAY STATEMENTS PURSUANT TO MISSISSIPPI RULES OF EVIDENCE 803(25) SINCE ADMITTED STATEMENTS WERE NOT SPONTANEOUS AND DID NOT HAVE SUFFICIENT INDICIA OF RELIABILITY.

¶ 20. Sanderson also argues that the trial court erred in admitting hearsay statements pursuant to Mississippi Rules of Evidence 803(25) since admitted statements were not spontaneous. While he concedes that the trial court did conduct a hearing outside the presence of the jury, he claims that the trial court erred in finding that sufficient indicia of reliability was present.

¶ 21. With regards to the admission or exclusion of evidence, the law in Mississippi is well established that a trial judge has discretion to either accept or reject evidence offered. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936(¶ 7) (Miss.2002); see Austin v. State, 784 So.2d 186, 193 (¶ 23) (Miss.2001). “That discretion must be exercised within the scope of the Mississippi Rules of Evidence, and reversal will only be had when an abuse of discretion results in prejudice to the accused,” Austin, 784 So.2d at 193-94 (¶ 23).

¶ 22. Mississippi Rule of Evidence 803(25), which is an exception to the hearsay rule and is called the tender years exception, provides:

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

¶ 23. The Rule’s comment lists several factors that the trial court should examine to determine if there is sufficient indicia of reliability. The factors include:

(1) whether there is an apparent motive on declarant’s part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declar-ant’s age, knowledge, and experience make it unlikely that the declarant fabricated.

See also Idaho v. Wright, 497 U.S. 805, 821-22, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). The comment for Rule 803(25) also states that “a finding that there is a substantial indicia of reliability should be made on the record.”

¶ 24. The tender years exception applies to this case because, although the minor was twelve years of age at the time of trial, she was ten years of age at the time the incident occurred. The Mississippi Supreme Court has stated that “there is a rebuttable presumption that a child under the age of twelve is of tender years.” Veasley v. State, 735 So.2d 432, 436(¶ 16) (Miss.1999). The trial judge determined that, based on his understanding of her age, the apparent state of her social development, her demeanor, insofar as the witnesses who have appeared and testified are concerned, Lulu certainly qualified under the tender years exception.

¶ 25. In the case sub judiee, the trial judge found the testimony admissible under Rule 803(25). The judge conducted the required hearing, outside the presence of the jury. He accepted testimony and made extensive findings as to the factors necessary to ascertain the veracity of the declarant’s testimony. The judge found that there was no motive to lie, that the -witnesses’s character was not in dispute, that the statements were spontaneous and not coerced, and that the witnesses’s' testimony was credible.

¶ 26. We find that the trial judge followed the proper procedure required by Rule 803(25) of the Mississippi Rules of Evidence. Therefore, the trial judge did not abuse his discretion in allowing the testimony. We find this assignment of error is without merit.

¶ 27. THE JUDGMENT OF THE AL-CORN CIRCUIT COURT OF CONVICTION OF COUNT I SEXUAL BATTERY AND SENTENCE OF LIFE; COUNT II STATUTORY RAPE AND SENTENCE OF TWENTY YEARS TO RUN CONSECUTIVELY TO SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND ORDER TO REGISTER AS A SEX OFFENDER IN THE EVENT OF HIS RELEASE IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., CONCURS IN RESULT ONLY.

      . Because this case involved -a minor, fictitious names were used in this opinion.

      . With .respect to this incident, Annie Sue pled guilty to charges of accessory before the fact to sexual battery and statutory rape.

      . The questionnaire contained a SASA abreve score which is a sexual abuse inventory. In a study done, a researcher found that there were ten behaviors that seemed to be associated with sexual abuse. For the results, if one answers "yes” to three or less, ninety-six percent of the time, that person is confirmed not abused. If one answers "yes” to three or more, seventy-seven percent of the time, that person is confirmed abused. In the present case, there was only one marked "yes.”


text:
    T. Mitchell KALOM, Appellant, v. Darryl Ford BRADY, Dawn Lynn Brady and Jackson County, Mississippi Board of Supervisors, Appellees.
    No. 2003-CA-00150-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.

      Wayne L. Hengen, Biloxi, attorney for appellant.
    Mark H. Watts, Robin Reid Boswell, Pascagoula, attorneys for appellees.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   BRIDGES, P.J.,

for the Court.

¶ 1. T. Mitchell Kalom (Kalom) petitioned the Jackson County Board of Supervisors (Board) for a private way over the land of several adjoining neighbors. The Board heard the petition and the objections of the adjoining land owners and denied the petition. Kalom then appealed the Board’s decision to the Jackson County Circuit Court where the decision was affirmed. From the circuit court’s decision Kalom now appeals on a single issue.

STATEMENT OF THE ISSUE

I. WHETHER THE JACKSON COUNTY BOARD OF SUPERVISORS WAS ARBITRARY AND CAPRICIOUS IN DENYING HIS PETITION FOR PRIVATE WAY? '

FACTS

¶ 2. In April of 2000, Kalom purchased' a forty acre parcel of land in Vancleave, Jackson County, Mississippi, by special warranty deed. This piece of property is landlocked from public roads. A year and a half later Kalom petitioned the Board requesting a private way for ingress and egress naming twenty neighboring landowners as respondents. In particular Ka-lom requested a fifty foot wide and six hundred sixty foot long private way, in a south-west direction, along the property lines of Darryl and Dawn Brady and Curtis Davis. A private way in this direction would connect with a way that already exists over the property of Curtis Davis. The private way on Davis’s property was created, used, owned and maintained by a dozen adjacent landowners.

¶ 3. Kalom testified that his plans for the property were to manage timber and hunting. However, through its discussion with Kalom the Board discovered Kalom also intended to subdivide the property for as many as five homes. He also stated that his reasoning for requesting the private way from the southern part of his property was that it is a shorter distance to the public road and from that route additional bridges and structures would not have to be constructed.

¶ 4. The opposing landowners offered as proof the fact that Kalom sent letters to the adjacent land owners on the north, west, and south boundaries of his land Henry Havens, Kenneth Papania and Darryl Brady respectively. In these letters Kalom did not offer to purchase a private way from those land owners but rather notified them that if they did not give him an easement he would go to the Board. Kalom also sent a letter to Curtis Davis whose land was farther south of his property just beyond Darryl Brady. Davis’s land would also have to be crossed and already had a private way. Kalom also did not offer to purchase a right to use the existing private way even though the dozen or so users of the road had spent thousands of dollars creating and maintaining the private road. James Davis who owns the property adjacent to Ka-lom’s on the eastern boundary was never contacted.

¶ 5. Kalom also proposed the route to run from the north of his property in a westerly direction along the property of Henry Havens but it is boggy and contained no dry access. Any other way created from the north through the Havens’ property would bisect the property. The route suggested to run from the west of his property would have bisected the property of Kenneth Papania going through the location were the Papania’s hoped to build a home. The route considered to the east was not reasonable since it contained a branch of the Bluff Creek and would be more difficult to construct a road.

¶ 6. Additional testimony offered by those opposed was that the northern route was shorter than his proposed southern route. The southern route would run directly over Curtis Davis’s driveway. The eastern route would cross only one property owner before it entered sixteenth section land with public roads. James Brady’s land was fenced-in pasture land for his cattle and creating a private way would require him to remove his fence. Also, the property on the southern boundary, James Brady’s, was the only property bordering Kalom that had a dwelling on it.

ANALYSIS

¶ 7. The standard of review when reviewing a Board’s decision “is substantial evidence, the same standard which applies in appeals from decisions of administrative agencies and Boards.” Wilkinson County Bd. of Supervisors v. Quality Farms, 767 So.2d 1007, 1009(¶8) (Miss. 2000) (citing Barnes v. Bd. of Supervisors, 553 So.2d 508, 511 (Miss.1989)). “The decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency’s scope or powers; or violated the constitutional or statutory rights of the aggrieved party.” Id. (citing Bd. of Law Enforcement Officers Standards & Training v. Butler, 672 So.2d 1196, 1199 (Miss. 1996)). Substantial evidence is “such relevant evidence as reasonable minds might accept as adequate to support a conclusion,” more than a “mere scintilla” of evidence. Id. (citing Johnson v. Ferguson, 435 So.2d 1191, 1195 (Miss.1983)).

I. WHETHER THE JACKSON COUNTY BOARD OF SUPERVISORS WAS ARBITRARY AND CAPRICIOUS IN DENYING HIS PETITION FOR PRIVATE WAY?

¶ 8. Kalom asserts the Board was arbitrary and capricious in its reasoning for denying his petition. Kalom’s request to disturb and invade the property of another is considerable. This State has always held the right to use and control one’s property as sacred. Whitefort v. Homochitto Lumber Co., 130 Miss. 14, 93 So. 437, 439 (1922). Whitefort established the burden Kalom had to prove under Mississippi Code Annotated section 65-7-201 holding: “The statute does not contemplate granting one citizen or corporation a right of way through the property of another citizen or corporation as a matter of mere convenience or as a mere matter of saving expense. There must be real necessity before private property can be invaded by a citizen for private purposes, if that can be done at all.” Id. The Board in its decision found Kalom failed to prove his proposed private way was reasonably necessary and not merely for convenience.

¶ 9. “An administrative agency’s decision is arbitrary if not done according to reason or judgment, but dependent on the will alone. An action is capricious if done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles.” Miss. State Dept. of Health v. Natchez, 743 So.2d 973, 977(¶ 13) (Miss.1999). The Board’s reasoning for its unanimous decision was that there were other routes through which Kalom could gain access to a public road but that Kalom failed to present sufficient evidence that his proposed route was the least intrusive to the current owners and the most reasonable to Kalom. The Board further reinforced its ruling by stating that no proof, other than his own statements, was offered by Kalom regarding the infeasibility of alternate routes.

¶ 10. The decision of the Board would require Kalom to prove that the areas to the north were boggy and would require a bridge. That the only possible road to the west would bisect the location where the Papania’s wished to build their home. Also, all routes to the east would have to cross the Bluff Creek which would also require a road. Kalom could have easily attained such proof by having an expert walk the tract and give his opinion regarding the ease or difficulty of constructing a road, such proof Kalom did not provide. This decision by the Board was done with reason and judgment and in regard for the surrounding facts and principles and lack of proof. Kalom’s claim that the Board’s decision was arbitrary and capricious fails.

¶ 11. On a procedural note the Court would like to bring to the parties’ attention that the procedural requirements of Mississippi Code Annotated section 65-7-201 have been changed since this case was heard in the Circuit Court of Jackson County. Effective April 20, 2003, any petition for private way through the land of another should be brought through an action in eminent domain. Therefore, any future attempts by Kalom to establish a private way for his property should begin by filing his petition with the special court of eminent domain for Jackson County.

¶ 12. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., SOUTHWICK, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    Michael GILMORE a/k/a Michael Deshawn Gilmore a/k/a Mac, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01869-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.

      William C. Trotter, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   BRIDGES, P.J.,

for the Court.

¶ 1. The Grand Jury of Washington County indicted Michael Gilmore for the offenses of capital murder and sexual battery. A jury trial followed in which the jury returned a verdict of “guilty.” Gilmore received a sentence of life in prison without the possibility of parole on the capital murder charge and life in prison for the sexual battery charge, with the sentences to run consecutively. Following the trial court’s denial of his motion for a directed verdict, motion for a new trial and JNOV, he now appeals to this Court.

STATEMENT OF THE ISSUES

I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT A DIRECTED VERDICT OR A J.N.O.V.

II. WHETHER THE JURY’S VERDICT WAS BASED ON THE . OVERWHELMING WEIGHT OF THE EVIDENCE.

III. WHETHER THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE STATEMENT OF GILMORE TO THE POLICE OFFICERS ON NOVEMBER, 2,1999.

IV. WHETHER THE TRIAL COURT ERRED IN FAILING TO SEND THE JURY QUESTIONNAIRE TO VENIRE PERSONS IN SUFFICIENT TIME TO BE OF BENEFIT TO COUNSEL.

V. WHETHER THE TRIAL COURT ERRED IN ADMITTING THE AUTOPSY PICTURES OF THE VICTIM. .

VI. WHETHER THE TRIAL COURT ERRED IN THE GUILT PHASE DURING CLOSING ARGUMENTS OF THE PROSECUTION IN ALLOWING THE STATE TO PLACE THE BURDEN OF PROOF ON GILMORE TO PRODUCE EVIDENCE.

FACTS

¶ 2. Y.S., a two year old, lived with her mother, her younger brother and her mother’s boyfriend, the defendant, Michael Gilmore. On November 1, 1999, the child’s mother woke up and left for work around 8:50 to 8:55 a.m, leaving the two children alone with Gilmore. When the child’s mother came home later that day she found the child in bed with burns on her back and immediately took her to the hospital. Police officers from the Green-ville Police Department were called to King’s Daughters Hospital, in Greenville, Mississippi, to investigate the death of the child, who was dead on arrival. In a statement made by Gilmore, he stated that the child was burned by hot water from a pot she pulled off the stove and that he was the only adult in the house when she was burned. He also denied doing anything to the child. The State alleges that when the mother left to go to work, the child was fine, but by noon that same day the child was dead of blunt force' trauma. It is also alleged that the child had been burned with boiling water and was sexually battered.

ANALYSIS

I. WHETHER' THE TRIAL COURT ERRED IN REFUSING TO GRANT A DIRECTED VERDICT OR A J.N.O.V.

¶ 3. With regards to Gilmore’s first issue, he argues that the trial court committed reversible error when it failed to grant his motions for a directed verdict, or in the alternative, JNOV. He claims that the evidence was simply insufficient to sustain a verdict of guilty in his case and requires a reversal. Specifically, Gilmore claims there were no eyewitnesses, Gilmore voluntarily submitted to physical tests and never fled the scene. As for the sexual battery, he claims that the police turned a blind eye to the fact that there were three adults in the house with the victim,’ up and until approximately 9:40 a.m. on the day of Y.S.’s death.

¶ 4. With regards to motions for directed verdict and also a JNOV, our standard of review is as follows:

Sufficiency questions are raised in motions for directed verdict and also in JNOV motions. McClain v. State, 625 So.2d 774, 778 (Miss.1993). Where a defendant moves for a JNOV or a directed verdict, the 'trial court considers all of the credible evidence consistent with the defendant’s guilt, giving the prosecution the benefit of all favorable inferences that may be reasonably drawn from this evidence. Id. This Court is authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could not find the accused guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987.)

Holmes v. State, 798 So.2d 533, 538 (¶ 18) (Miss.2001).

¶ 5. Motions for directed verdict and motions for JNOV are both for the purpose of challenging the legal sufficiency of the evidence. Noe v. State, 616 So.2d 298, 302 (Miss.1993); McClain, 625 So.2d at 778. See also Strong v. State, 600 So.2d 199, 201 (Miss.1992).

¶ 6. Our standard of review regarding the legal sufficiency of the evidence is as follows:

[W]e must, with respect to each element of the offense, consider all of the evidence—not just the evidence which supports the case for the prosecution—in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Wetz, 503 So.2d at 808.

¶ 7. The court in Billiot stated that the “jury is the sole judge of the credibility of witnesses, and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict.” Billiot v. State, 454 So.2d 445, 463 (Miss.1984). This Court may not make an assessment on the credibility of the trial witnesses as this task is one for the. jury. Kinzey v. State, 498 So.2d 814, 818 (Miss.1986).

¶ 8. According to the above standard of review, this Court looks at the evidence in the light most favorable to the verdict. We do not have the responsibility of reweighing the evidence to determine which witnesses we believe had the most credibility. All of the evidence points to the fact that Gilmore committed capital murder and sexual battery. There is no merit to this issue

II. WHETHER THE JURY’S VERDICT WAS BASED ON THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 9. Gilmore also argues that the verdict was against the overwhelming weight of the evidence. “He argues further that even though the evidence was laid out in front of them, the jury refused to consider it [sic].”

¶ 10. When discussing whether the verdict is against the overwhelming weight of the evidence, the standard of review is abuse of discretion in failing to grant a new trial. In Montana v. State, the Mississippi Supreme Court stated:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.

Montana v. State, 822 So.2d 954, 967-68 (¶ 61) (Miss.2002) (citation omitted).

¶ 11. The record reflects evidence, through DNA evidence and Gilmore’s own confession, that Gilmore was guilty of capital murder and sexual battery. The record presents substantial evidence to support the verdict; therefore, we find this issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE STATEMENT OF GILMORE TO THE POLICE OFFICERS ON NOVEMBER, 2,1999.

¶ 12. Gilmore raised the issue of whether his confession was voluntarily given because when interviewed by the investigating officers and upon his signing a waiver of the Miranda rights, he claims a check mark was placed upon the form indicating that he did not wish to give a statement without an attorney. He later, but prior to the trial of this case, filed a motion to suppress the statement given by him and sought a hearing thereon. This hearing was also videotaped and later transcribed. The record indicates that a hearing was held but only one of the three investigating officers (or officers present at the signing of the confession) was present. While the record states the reason for one of the officer’s absence as being a change in job and movement to another state, the record does indicate, however, that the State gave a reason excusing one of the officers at that time but did not give a reason as to the other. The record is devoid of why the third officer could not be summoned and the record is also devoid of any testimony by the defendant in his behalf. Gilmore claims that the testimony given by the one officer on cross-examination was sufficient to be rebuttal as required by Malone v. State, 829 So.2d 1253, 1257-58 (Miss.Ct.App.2002); see also Kelly v. State, 735 So.2d 1071, 1077 (Miss.Ct.App.1999); Mettetal v. State, 602 So.2d 864, 867-68 (Miss.1992); Lesley v. State, 606 So.2d 1084, 1091 (Miss.1992).

¶ 13. The applicable burden of proof for proving the voluntariness of a confession was set out in Agee v. State, 185 So.2d 671, 673 (Miss.1966), where the court held that:

The State had the burden of proving the voluntariness of a confession. This burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. This makes out a prima facie case for the State on the question of voluntariness. When objection is made to the introduction of the confession, the accused is entitled to a preliminary hearing on the question of the admissibility of the confession. This hearing is conducted in the absence of the jury ... [W]hen, after the State has made out a prima facie case as to the voluntariness of the confession, the accused offers testimony that violence, threats of violence, or offers of reward induced the confession, then the State must offer all the officers who were present when the accused was questioned and when the confession was signed, or give an adequate reason for the absence of any such witness,

(citations omitted). In Thorson v. State, 653 So.2d 876, 888 (Miss.1994), the Mississippi Supreme Court maintained that the procedure enunciated in Agee still remains good law in this state.

¶ 14. Gilmore claims that his cross-examination of the witness at the suppression hearing was sufficient to be rebuttal as required by the above stated law. However, this is not the case. According to established case law, the defendant must offer testimony that the confession was not voluntary. Agee, 185 So.2d at 673; also see Abram v. State, 606 So.2d 1015, 1029-30 (Miss.1992); Cox v. State, 586 So.2d 761, 763 (Miss.1991); Scott v. State, 382 So.2d 1091, 1092 (Miss.1980). Since Gilmore never rebuts the State’s prima facie case in the case sub judice, the State was not required to produce every witness that was present during the questioning and confession.

¶ 15. Therefore, this Court finds this issue to be without merit.

IV.WHETHER THE TRIAL COURT ERRED IN FAILING TO SEND THE JURY QUESTIONNAIRE TO VENIRE PERSONS IN SUFFICIENT TIME TO BE OF BENEFIT TO COUNSEL.

¶ 16. Gilmore claims that the trial court failed to send the jury questionnaire to venire persons in sufficient time to be of benefit to counsel in voir dire. However, Gilmore fails to present any legal authority to support his claim.

¶ 17. In Mississippi, it is well established that this Court is not required to address any issue that is not supported by reasons and authority. Hoops v. State, 681 So.2d 521, 535 (Miss.1996) (citing Pate v. State, 419 So.2d 1324, 1325-26 (Miss. 1982)). Furthermore, the requirements for the argument in an appellate brief are stated in Mississippi Rules of Appellate Procedure 28(a)(l)(6): “The argument shall contain the contentions of appellate with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied upon.”

¶ 18. Gilmore’s brief fails to cite any relevant authority to support his position. Accordingly, we hold that this issue is proeedurally barred.

V. WHETHER THE TRIAL COURT ERRED IN ADMITTING THE AUTOPSY PICTURES .OF THE VICTIM.

¶ 19. Gilmore contends that the trial court erred in .admitting, photographs of the victim at trial.

¶ 20. In McClee v. Simmons, this Court stated that “it is a well settled rule that this Court will only consider facts within the trial record. This Court does not rely on assertions made in briefs, but only on facts preserved within a -record certified by law.” McClee v. Simmons, 834 So.2d 61, 64-65 (¶ 12) (Miss.Ct.App.2002). The Mississippi Supreme Court has also addressed this issue and has. stated that “the appellant has the duty of insuring that the record contains sufficient evidence to support his assignments of error on appeal.” Oakwood Homes Corp. v. Randall, 824 So.2d 1292, 1293 (¶ 4) (Miss.2002).

¶ 21. The record shows that four photos were admitted into evidence. However, the pictures and/or any exhibits to which Gilmore objected, are not part of the record on appeal and this Court does not have the benefit of seeing what the trial judge saw or what was shown to the jury. It is the appellant’s duty to present a complete record on appeal and to include items of which he is complaining so that this Court may review the alleged error. Gilmore has failed to place the necessary record pertaining to his assignment of error before us, and we are therefore, unable to consider his assignment of error. Therefore, the trial court’s decision is affirmed as to this issue.

VI. WHETHER THE TRIAL COURT ERRED IN THE GUILT PHASE DURING CLOSING ARGUMENTS OF THE PROSECUTION IN ALLOWING THE STATE TO PLACE THE BURDEN OF PROOF ON GILMORE TO PRODUCE EVIDENCE.

¶ 22. Finally, Gilmore claims that the trial court erred in the guilt phase during closing arguments of the prosecution in allowing the State to place the burden of proof on Gilmore to produce evidence. The defense, in its closing argument, implicated that the State had not put on all of the evidence and had left some of it at the crime lab and that they also had not met their burden of proof beyond a reasonable doubt. The prosecutor, in his final argument to the jury, rebutted the arguments made by the defense, and argued that all the evidence was subject to subpoena by the defendant, who could have requested anything that was tested by the crime lab. The State’s argument is as followed:

Carlton (DA): Let me see if I can touch on a few things that have been raised in this case.
No. 1. I don’t have any apology to make for the manner and method that this case has been presented or tried.
No. 2. Everything that’s in the Crime Laboratory is subject to subpoena. If they [the defense] wanted it here, all they got to do is say, “Judge, issue this subpoena and bring it here.”
Trotter (Defense Counsel): Your honor, I object to that. That places a burden on us which we don’t have.
The Court: The objection is overruled. Carlton: If they want it here, they can get it here. So my point is this — to talk about what’s not here is not fair. Let’s talk about what is here....

¶ 23. It is well established in Mississippi that the standard of review applied to lawyer misconduct during opening statements or closing arguments is “whether the natural and probable effect of the misconduct is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Flowers v. State, 842 So.2d 531 (Miss.2003); Davis v. State, 660 So.2d 1228, 1248 (Miss.1995); Johnson v. State, 596 So.2d 865, 869 (Miss.1992).

¶24. Where a closing argument does not result in unjust prejudice against the accused as to result in a decision influenced by the prejudice so created, this Court will find it harmless. Mooneyham v. State, 842 So.2d 579, (Miss.Ct.App.2002).

1Í25. In the closing arguments of the case sub judice, the prosecutor’s making a point in an attempt to rebut arguments made by the defense in its closing arguments was not so prejudicial that reversal is warranted. Therefore, we find no merit to this issue.

¶ 26. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT POSSIBILITY OF PAROLE; COUNT II SEXUAL BATTERY AND SENTENCE OF LIFE TO RUN CONSECUTIVELY TO SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

KING, C.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., CONCURS IN RESULT ONLY.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)