author: IRVING, J.,

text:
    Edward Earl PURNELL, a/k/a James Arnold, a/k/a Bubba, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-00644-COA.
    Court of Appeals of Mississippi.
    Jan. 13, 2004.
    Rehearing Denied March 30, 2004.
    Certiorari Denied July 22, 2004.

      Thomas M. Fortner, Jackson, Lynn Watkins, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Edward Earl Purnell was tried and convicted in the Circuit Court of Hinds County of attempted rape, sexual battery, auto theft, and strong arm robbery. Pur-nell appeals, asserting that the trial court erred in overruling his motion to suppress the photo lineup and the eyewitness in-court identifications of him. He also contends that the trial court erred in overruling his demurrer to the indictment and that the jury’s verdict is against the overwhelming weight of the evidence.

¶ 2. Finding no error, we affirm on all issues.

FACTS

¶ 3. On or about June 17, 2000, a man knocked on the door of eighty-year-old CP and asked to use her phone. When CP allowed the man into her house, he took her by the throat and threw her to the floor. The man demanded money and then grabbed CP, dragged her into the bedroom, and tried to have sex with her. He was unable to get an erection, and thus was unable to penetrate her vagina. He then stuck his fingers inside CP’s vagina and struck her in the eye with his fist. Thereafter, he performed oral sex on CP. The man then took CP’s car and other personal belongings before leaving the house.

¶ 4. CP gave the police a general description of the man who assaulted her. Gilbert Tillman, one of CP’s neighbors, testified that he saw a man driving CP’s car as it was leaving the scene of the crime. Another neighbor, Albert Seals, testified that he observed defendant Edward Purnell driving CP’s car the day after the attack. He also stated that he had seen Purnell walking in the neighborhood the day before the attack. Three days after the incident, a police detective presented six photographs (including a photograph of Purnell) to CP, Tillman, and Seals for possible identification of the perpetrator. Each individual identified Purnell as the attacker and the man seen driving CP’s car. The police later found CP’s car, and its tag had been removed and replaced with a stolen one. No attempts were made to locate the owner of the stolen tag found on CP’s car. A towel, cigarette butts, and fingerprints were found inside the car, but no scientific analysis was conducted on these items.

¶ 5. At trial, CP was unable to identify Purnell as her attacker, and stated that she believed the defendant present in the courtroom was not the one who attacked her. Notwithstanding, the jury returned a guilty verdict on all counts. Additional relevant facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Witness Identifications

¶ 6. Purnell contends that the trial court erred in overruling his motion to suppress the identification testimony of State’s witnesses CP, Tillman, and Seals. Purnell specifically asserts that the witnesses’ testimonies involving their photo line-up and in-eourt identifications of him should have been excluded pursuant to the factors articulated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

¶ 7. It is well-settled law that the standard of review for evaluating the admissibility of evidence at suppression hearings in pre-trial identification cases is whether substantial credible evidence supports the trial court’s findings that, considering the totality of the circumstances, the in-court identification testimony was not impermissibly tainted. Ellis v. State, 667 So.2d 599, 605 (Miss.1995). Purnell directs our attention to the cases of Hughes v. State, 820 So.2d 8 (Miss.Ct.App.2002) and Neil v. Biggers which set forth several factors to be utilized by this Court in making this determination. These factors include (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Hughes, 820 So.2d at 11(¶ 8) (citing Biggers, 409 U.S. at 199, 93 S.Ct. 375). Further, convictions based on eyewitness identifications at trial following a pretrial identification by photographs will be set aside “only if the photographic procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Bankston v. State, 391 So.2d 1005, 1007 (Miss.1980) (citing Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)).

¶ 8. In the instant case, Purnell maintains that the witnesses’ identifications were unreliable and/or suggestive since two of the victim’s neighbors only saw the side of the perpetrator’s face for three seconds. He further maintains that he was denied due process of law because the photo lineup consisted exclusively of frontal views and contained no profile views, both of which were needed for a reliable identification. In addition, Purnell argues that since CP was unable to identify him as her attacker at a pretrial hearing and at trial, testimony concerning her photo lineup identification of him should have been excluded.

¶ 9. Using Biggers’ totality of the circumstance analysis, we find nothing in the record suggesting that the identification procedure was impermissibly suggestive or unreliable. Here, CP testified that Purnell was in her house about half an hour, and that since she was pretty close to him the whole time, she could see Pur-nell’s face during the attack. As a result, she had ample time and opportunity to get a dose view of the face of the man who attacked her. Although CP did not recognize Purnell as her attacker at trial, as the prosecution points out, this was simply due to age and poor eyesight. There was also testimony that Purnell’s appearance had changed since the crime due to weight gain and a shaven head. Further, a detective investigating the crime testified that when shown photos for a possible identification three days after her attack, it only took CP seconds to identify Purnell as her attacker and that she was certain of the identification at that time. Likewise, the evidence shows that neighbors Tillman and Seals recognized Purnell when shown photos of him, and later made positive in-court identifications of him. Nothing in the record indicates that the witnesses were persuaded to pick Purnell out of the photographic line-up, or that the witness’ identifications were suggestive or unreliable. Based on the evidence presented at trial, Purnell’s argument on this issue fails.

(2) Validity of the Indictment

¶ 10. Purnell next asserts as error that the indictment failed to allege an essential element of the crime of attempted rape. Specifically, Purnell argues that count one of the indictment was defective because its language did not state that Purnell “failed in his attempt” or “was prevented from” committing the act of rape.

¶ 11. The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review. Hawthorne v. State, 751 So.2d 1090, 1092(¶8) (Miss.Ct. App.1999). An indictment serves to alert a defendant of the nature of the charge against him. Ishee v. State, 799 So.2d 70, 76(¶ 18) (Miss.2001). Thus, if the indictment reasonably provides the accused with actual notice, it is sufficient to charge the defendant with the crime. Id (¶ 19). Further, when the charge is the attempt to commit a crime, an allegation of an overt act is mandatory in the indictment. Hawthorne, 751 So.2d at 1093(¶ 13). An attempt consists of three elements: (1) an intent to commit a particular crime, (2) a direct ineffectual act done towards its commission, and (3) a failure to consummate its commission. Ishee, 799 So.2d at 73(¶ 6).

¶ 12. The indictment stated that Purnell “did willfully, unlawfully, felo-niously, and forcibly attempt to rape and ravish CP, a female fourteen years of age or above, without the consent and against the will of CP by then and there hitting her with his fists, throwing her on the bed, forcing her legs open and attempting to penetrate her vagina with his penis.” In order to charge Purnell with attempted rape, the State must show he “attempted to” have forcible sexual intercourse with the victim, but either “failed to” or was “prevented from” doing so. Here, the evidence shows that Purnell possessed the requisite intent to commit the crime of rape. He tried to force CP to have sex with him by hitting her and holding her down against her will. Purnell then began to commit the crime of rape when he forced CP’s legs open and attempted to penetrate her vagina with his penis. However, he failed to complete the crime because he was unable to get an erection, and consequently was unable to penetrate her vagina. As a result, we find that the record supports a conviction of attempted rape. We further find that the indictment was sufficient to put Purnell on notice that he was being charged with attempted rape, and the indictment specifically set forth the conduct which the State planned to use as evidence. For the foregoing reasons, this argument is without merit.

(3) Sufficiency and Weight of the Evidence

¶ 13. Finally, Purnell asserts that the trial court should have decided, as a matter of law, that the evidence presented by the state was insufficient to support a guilty verdict. He further asserts that the trial court erred in denying his motion for a directed verdict, peremptory instruction, and JNOV. Although Purnell indicates in the caption to this issue that the verdict was against the overwhelming weight of the evidence, the argument which he makes in support of the issue goes to the sufficiency and not the weight of the evidence. Therefore, we will consider the sufficiency and weight of the evidence as separate matters.

¶ 14. “The standard of review for a denial of a directed verdict, peremptory instruction, and a JNOV are identical.” Hawthorne, 835 So.2d at 21(¶ 31). A motion for a JNOY, as well as a motion for a directed verdict and request for a peremptory instruction, challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). On the issue of legal sufficiency, reversal can only occur when evidence of one or more of the elements of the charged offense is such that “reasonable and fair-minded jurors could only find the accused not guilty.” Hawthorne, 835 So.2d at 21(¶ 31).

¶ 15. Ample evidence was offered by the State in support of Purnell’s convictions. The victim testified that a man knocked on her door and asked to use her phone. When she allowed him into her house, he took her by the throat and threw her to the floor. The man then grabbed CP, dragged her into the bedroom, and proceeded to try to have sex with her. He was unsuccessful because he was unable to get an erection. He then stuck his fingers inside CP’s vagina and struck her in the eye with his fist. Thereafter, he performed oral sex on CP. The man then took CP’s car and other personal belongings before leaving the house.

¶ 16. The evidence further showed that when the police arrived, CP gave them a general description of the man who assaulted her. Gilbert Tillman, one of CP’s neighbors, testified that he saw a man driving CP’s car as it was leaving the scene of the crime. Another neighbor, Albert Seals, testified that on the day before the attack, he observed Purnell walking in the neighborhood and saw Purnell driving CP’s car the day after the attack. Three days after the incident, CP, Tillman, and Seals identified Purnell as the attacker. Further, both Tillman and Seals identified Purnell as the man seen driving CP’s car and made positive in-court identifications of Purnell.

¶ 17. We find that substantial evidence exists in the record to support Purnell’s conviction. Accepting the evidence in the light most favorable to the state, the jury was justified in finding Purnell guilty. We will now address Purnell’s assignment of error that the verdict was against the overwhelming weight of the evidence.

¶ 18. As distinguished from a motion for a directed verdict or a JNOV, a motion for a new trial asks to vacate the judgment on the grounds related to the weight of the evidence, not sufficiency of the evidence. Smith v. State, 802 So.2d 82, 85—86(¶ 11) (Miss.2001). Our standard of review for claims that a conviction is against the overwhelming weight of the evidence or that the trial court erred in not granting a motion for a new trial has been stated as follows:

“[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.” A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction unconscionable injustice.

Todd v. State, 806 So.2d 1086, 1090(¶ ll)(Miss.2001).

¶ 19. Considering the evidence presented by the State in support of Pur-nell’s conviction, and its substantial weight against Purnell, we are not persuaded that the verdict is so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice. The record indicates that the facts and inferences in the case-at-hand strongly point toward Purnell’s guilt. Consequently, we find the trial court did not abuse its discretion denying Purnell’s motion for a new trial.

¶ 20. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT ONE, RAPE AND SENTENCE OF TEN YEARS; COUNT TWO, SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS; COUNT THREE, AUTO THEFT AND SENTENCE OF FIVE YEARS; AND COUNT FOUR, STRONG ARM ROBBERY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE SENTENCES IN COUNTS ONE, THREE, AND FOUR TO RUN CONCURRENTLY, AND THE SENTENCE IN COUNT TWO TO RUN CONSECUTIVELY TO COUNT ONE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . The name of the victim has been changed to protect her identity.


source: Caselaw Access Project

license: Public Domain

text:
    Donyale STUBBS, a/k/a Donyale Holloway, a/k/a Bean, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-00399-COA.
    Court of Appeals of Mississippi.
    Jan. 13, 2004.
    Rehearing Denied April 13, 2004.
    Certiorari Denied July 22, 2004.

      John R. Reeves, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J., IRVING, and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. A Lincoln County jury found Don-yale Stubbs guilty of the sale of cocaine. The trial judge sentenced Stubbs to nineteen years in the custody of the Mississippi Department of Corrections. Stubbs filed the usual post-trial motion for a JNOV or, in the alternative, for a new trial. This motion was denied, and Stubbs has appealed, asserting six suggestions of error. We quote them verbatim:

1. Allowing Mississippi Bureau of Narcotics Agent Vanderslice to testify that Kevin Brothern told Vander-slice that drugs could be purchased from Donyalé Stubbs is reversible error.
2. Allowing Mississippi Bureau of Narcotics Agent Vanderslice to testify that he found a lamp in Donyale Stubbs’s living room which was connected to a motion sensor in the yard is reversible error.
3. Allowing Mississippi Bureau of Narcotics Agent Vanderslice to testify that he found guns in Donyale Stubbs’s home is reversible error.
4. The State implied in closing argument that Donyale Stubbs is guilty because he did not testify, thereby violating his constitutional right to not testify without adverse inferences.
5. The State wrongly appealed to the fears and prejudices of the jury by implying that Kevin Brothern, its chief witness, would be harmed unless the jury convicts Stubbs.
6.The verdict is against the overwhelming weight of the evidence.

¶ 2. Discerning no reversible error, we affirm the trial court’s judgment.

FACTS

¶ 3. The Southwest Narcotics Enforcement Unit enlisted Kevin Brothern, a confidential informant, to aide them in buying cocaine from Donyale Stubbs. Brothern went to Southwest Narcotics Enforcement Unit’s offices in Lincoln County, Mississippi and was prepared for this operation. Brothern and his vehicle were searched. Brothern was then provided with a micro-cassette recorder, a body transmitter, and $100 in order to make the purchase.

¶ 4. When Brothern left the Southwest Narcotics Enforcement Unit’s office, he drove to the trailer where Stubbs lived. Brothern was followed by Southwest Narcotics Enforcement Unit’s agents. When Brothern arrived at Stubbs’s home, agents traveled a half mile down the road from the trailer and listened to Brothern’s actions over the body transmitter. Agents heard Brothern enter the trailer and ask for Stubbs. Agents then heard Stubbs’s voice. Brothern asked Stubbs for $100 worth of cocaine. Agents heard Stubbs leave and return within minutes. The last thing that the agents heard was Brothern counting money. After the transaction, Brothern traveled to a pre-determined location to meet the agents and give them the crack cocaine that he purchased from Stubbs.

¶ 5. Later that night, Southwest Narcotics Enforcement Unit’s agents got a search warrant for Stubbs’s home. The agents recovered the money that was previously used to purchase the cocaine. Agents also found guns and motion lights. Additional pertinent facts will be related during the discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Admissions into Evidence

¶ 6. The first five issues which Stubbs cites as error regard the admission of evidence. Stubbs argues that the trial court erroneously allowed statements of a Southwest Narcotics Enforcement Unit’s agent regarding Stubbs and the subsequent search of his home. The other issues involve alleged prosecutorial misconduct by the State. We begin our analyses with the allegations of error involving the testimony of Agent Gary Vanderslice.

¶ 7. The standard of review for this Court regarding the admissibility of evidence is abuse of discretion of the trial court and reversal may be had only where that discretion has been abused. Johnston v. State, 567 So.2d 237, 238 (Miss. 1990). Unless the trial judge’s discretion is so abused as to be prejudicial to the accused, an appellate court will not reverse. Shearer v. State, 423 So.2d 824, 826 (Miss.1983). “A review of our case law indicates that the discretion of the trial judge runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Noe v. State, 616 So.2d 298, 303 (Miss.1993) (quoting Williams v. State, 544 So.2d 782, 785 (Miss.1987)). However, the discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence. Johnston, 567 So.2d at 238.

¶ 8. Stubbs’s first argument of error concerns the testimony of Agent Vander-slice that Brothern informed him that drugs could be purchased from Stubbs. Stubbs explains that the statement was highly prejudicial and could have led the jury to believe the statement was true simply because Agent Vanderslice, a government agent, repeated what Brothern said to him.

¶ 9. Stubbs supports this argument of reversible error by citing McGowan v. State, 375 So.2d 987 (Miss.1979). In that case the supreme court found that “[a] witness may not repeat an out-of-court statement which names a defendant as the person from whom contraband may be purchased.” Id. at 990. Stubbs also quotes case law from Ratcliff v. State, 308 So.2d 225 (Miss.1975), which held that what an informant tells officers in the course of their investigation is hearsay and is inadmissible. Id. at 227. However, we find that Ratcliff does not support Stubbs’s contentions. That case goes on to explain that, “[o]ne of the well-established rules of jurisprudence in this state ... is that an accused person is entitled to be confronted with and have opportunity to cross-examine witnesses against him.” Id. (citing U.S. Const. amend. VI; Miss. Const, art. 3, § 26). Therefore, we interpret the Ratcliff holding to mean that governmental officers cannot divulge the information elicited from informants if those same informants are not available for cross-examination by the defendant, for it would violate that defendant’s right to confront his accusers. In our case, the informant, Brothern was available for cross-examination by Stubbs.

¶ 10. We do not hold that the out-of-court statements by informants to officers escape our hearsay rules. However, we recognize that there are some circumstances where an officer can testify at trial about information provided to him by informants. Those situations include statements explaining actions taken by an officer.

In Swindle [v. State, 502 So.2d 652 (Miss.1987)] the Court found that an officer’s testimony as to the substance of his conversation with an informant was offered to show the reason for the officer’s presence at the scene when it stated, “an informant’s tip is admissible to the extent required to show why an officer acted as he did and was at a particular place at a particular time.... ” It should also be noted that the Court found that the out-of-court declaration in Swindle “was not introduced for the purpose of proving the truth of the assertion ... but to show why Marshall was at the tavern on the day in question. The truth of the statement by Crenshaw to Marshall was not in issue.”

Clemons v. State, 732 So.2d 883, 888(¶21) (Miss.1999). Thus, we find that trial judge did not commit error when he allowed Agent Vanderslice to testify that Brothern stated contraband could be purchased from Stubbs, for the statement was not introduced for the purpose of proving the truth of the matter asserted but to explain how Stubbs came under investigation by the Southwest Narcotics Enforcement Unit.

¶ 11. Next, we will combine our analysis of Stubbs’s two arguments of error involving the introduction of the testimony of Agent Vanderslice regarding the motion sensor and guns which he found in Stubbs’s home. Stubbs insists that this evidence was irrelevant and its probative value, if any, was outweighed by its prejudicial effect. In regards to the motion sensor, Stubbs explains that the evidence improperly allowed the jury to believe that he was a drug dealer, otherwise why would he possess a motion sensor. Stubbs also states that the motion sensors and guns make it no more or less probable that he sold cocaine to Brothern.

¶ 12. Early in Agent Vanderslice’s testimony, he commented that he had been in narcotic enforcement for fifteen years and he had encountered several drug dealers. He further stated that drug, dealers usually have certain items to assist them in their trade. In particular, he identified such items to include weapons, security systems, money, and vehicles. Later in his testimony, outside the jury’s presence, the State informed the trial judge that it intended to question Agent Vanderslice about the security devices and weapons found in Stubbs’s home. Stubbs objected to the introduction of such evidence for he argued that it was not directly related to the charge of the sale of cocaine.

¶ 13. The trial judge made the following ruling on introduction of Agent’s Vander-slice’s testimony relating to the security devices and weapons:

BY THE COURT: Relevant evidence is evidence that tends to prove the existence of a fact that is at issue. The fact at issue today is whether or not this defendant sold drugs. It passes muster on relevancy, and then 4.03— or it passes on relevancy based on this officer’s testimony, what he said earlier, regarding the tools of the trade of a person who sells drugs. Now, under Rule 4.03 the question is whether or not the probative value is outweighed by the prejudicial nature of the evidence. It may or may not have a lot of, tremendous amount of probative value, but I don’t think there would be any prejudice—
BY THE COURT: The probative value — the prejudicial nature is just not that much. Many people have guns and lights, so it would not be unduly prejudicial. The probative value has been established by this officer, so I will overrule the objection as to those two items. ■

From examination of this colloquy, it is clear that the trial judge did not abuse his discretion. The trial judge exercised his discretion within the boundaries of the Mississippi Rules of Evidence; in particular, he performed a Rule 403 balancing test and he found that Agent Vanderslice’s testimony was more probative than prejudicial. See Johnston, 567 So.2d at 238; Noe, 616 So.2d at 303; Williams, 544 So.2d at 785. “The simple fact that probative evidence is prejudicial does not make it inadmissible. The prejudicial effect must substantially outweigh the probative value in order to render it inadmissible.” Haddox v. State, 636 So.2d 1229, 1238 (Miss.1994). That is not the case here.

2. Prosecutoñal Misconduct

¶ 14. The next issue we examine is Stubbs’s assertion that the State violated his right to a fair and impartial trial by remarks it made in its closing argument. During the closing arguments, the State made the following statement: “This case turns on which witness you all believe. You heard from Gary [Vanderslice] and you heard from Kevin [Brothern], It is your job as jurors to decide who is telling the truth and how much is the truth.”

¶ 15. Stubbs argues that these arguments would be acceptable if both he and the State called separate witnesses to testify. Stubbs did not testify, nor did he call any witnesses. Thus, Stubbs explains that the State’s comments, considered in the light of the fact that he did not call any defense witnesses, led the jury to believe that, since the State called three witnesses and he none, then he must have done what the State said he did.

¶ 16. Conversely, the State asserts that Stubbs did not object to the remarks and must rely on the plain error doctrine. See Watts v. State, 733 So.2d 214, 233(¶ 53) (Miss.1999). The Watts court held that “where it was alleged that the prosecutor made improper comments during both opening and closing arguments as well as while examining witnesses, but no objections were raised at trial, the defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal.” Id.

¶ 17. We do not find the plain error doctrine applicable to the case sub judice. We recognize that “prosecutors are prohibited from making direct comments on the defendant’s failure to testify; they are also precluded from referring to the defendant’s failure to testify by innuendo and insinuation.” Jones v. State, 669 So.2d 1383, 1390 (Miss.1995). However, a broad latitude is allowed to attorneys in their arguments, and it is well established that it is error to argue statements of facts which are not in the evidence or not necessarily inferable. Tubb v. State, 217 Miss. 741, 744, 64 So.2d 911, 912 (Miss.1953).

Counsel is not required to be logical in [his] argument; he is not required to draw sound conclusions, or to have a perfect argument measured by logical and rhetorical rules; his function is to draw conclusions and inferences from evidence on behalf of his client in whatever he deems proper, so long as he does not become abusive and go outside the confines of the record.

Johnson v. State, 416 So.2d 383, 391 (Miss. 1982).

¶ 18. We find that the State’s remarks regarding the jury’s duty to weigh the testimony of Agent Vanderslice and Brothern did not violate Stubbs’s right to not testify. “There is a difference between a comment on the defendant’s failure to testify and a comment on the failure to put on a successful defense.” Jones, 669 So.2d at 1390. “Moreover, the State is entitled to comment on the lack of any defense, and such comment will not be construed as a reference to a defendant’s failure to testify by innuendo and insinuation.” Id. In this present matter, the State did not by innuendo, insinuation or inference violate Stubbs’s Fifth Amendment right.

¶ 19. Furthermore, “[w]here serious and irreparable damage has not resulted, the judge should cure or remedy the situation by admonishing the jury then and there to disregard the impropriety.” Alexander v. State, 602 So.2d 1180, 1182-1183 (Miss.1992). Assuming arguendo the comments were improper, we conclude that the trial judge’s “admonishments cured any prejudicial effect and that the jurors disregarded the comments as instructed.” Id. Here, the trial judge instructed the jury in jury instruction C-l that “arguments, statements and remarks of counsel are intended to help you understand the evidence and apply the law, but are not evidence. If any argument, statement or remark has no basis in the evidence, then you should disregard that argument, statement, or remark.” We presume “that jurors follow the instructions of the court. To presume otherwise would be to render the jury system inoperable.” Moore v. State, 787 So.2d 1282, 1291(¶30) (Miss. 2001). We find that the comment by the State was a reasonable argument and not improper.

¶ 20. We note that Stubbs briefly addresses his trial attorney’s failure to contemporaneously object to the State’s closing argument as being ineffective assistance of counsel. However, Stubbs did not argue this issue to the trial court, nor does he cite authority in support of such error. Therefore, because of Stubbs’s failings in these two respects, we find this contention is proeedurally barred. Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988); Magee v. State, 542 So.2d 228, 234 (Miss.1989).

¶21. Stubbs makes another argument under the umbrella of prosecutorial misconduct. Stubbs claims that the State wrongly appealed to the fear and prejudices of the jury by implying that Broth-ern would be harmed unless the jury convicted Stubbs. During the direct examination of Brothern by the State, the following transpired:

BY THE STATE: How do you [Broth-ern] feel about testifying today?
BROTHERN: I feel kind of scared, you know, I don’t feel scared about testifying, I feel scared about the after effects of it. Informants have been known to be killed, you know.
BY THE DEFENSE: Your honor, I would like to object to the and move that it be stricken. That is not relevant to this case. That is just a general opinion that he is expressing— there has been no foundation for him to—
BY THE COURT: —Sustained. And that last comment will be stricken from the record. Ladies and gentlemen, you will disregard the last comment.
* * *
BY THE COURT: ... You [jury] will disregard the last response. If you will disregard that in your deliberations, will you please raise your hand. If you will disregard that last response, will you please raise your hand. All right. Let the record reflect that is a[sic] unanimous show of hands. Proceed.

Additionally, Stubbs alleges that the State made the inference in its closing argument that Brothern would be harmed by Stubbs if the jury did not convict Stubbs. Specifically, Stubbs asserts error as a result of the following comments:

Kevin [Brothern] has to come back into the Lincoln County Community where Donyale [Stubbs] also lives after testifying against Donyale [Stubbs]. I think you all can draw your reasonable conclusions as to what that situation is like. What he could have said is Michael did it, Michael lives in Jackson, or wherever Michael is. He doesn’t have to go back and face Michael. Why would he finger Donyale [Stubbs]? He’s safer fingering Michael, isn’t he. But he didn’t. He is telling you the truth, and that — he just didn’t quite have the words, he was easily confused, but that is the testimony you have heard today, and I’m telling you it is the truth. That is what happened that night.

We find no merit to Stubbs’s contentions.

¶ 22. First, we note that this allegation addresses supposedly inflammatory statements by the State, and the thrust of such allegation comes from the closing argument. We will not repeat our previous analysis but point out that Stubbs did not make any contemporaneous objection and that the trial judge admonished the jury to follow the instructions of the trial court. Nevertheless, we briefly examine the contents of the allegedly inflammatory statements.

Any allegedly improper prosecutorial comment must be evaluated in context, taking into consideration the circumstances of the case when deciding the comment’s propriety. The test for determining if improper argument by the prosecutor to the jury requires reversal is whether the natural and probable effect of the improper argument of the prosecuting attorney is to create an unjust prejudice against the accused as to result in a decision influenced by the prejudice so created. Prosecutors are afforded the right to argue anything in the State’s closing argument presented as evidence.... Prosecutors should refrain from doing or saying anything that would tend to cause the jury to disfavor the defendant due to matters other than evidence relative to the crime.

Dancer v. State, 721 So.2d 583, 589(¶ 31) (Miss.1998). Our supreme court has held “that appealing to the fears of jurors is impermissible. An argument suggesting the ‘frightening’ prospect of a defendant going free is likewise inappropriate.” Id. at (¶ 32).

¶ 23. Stubbs cites the Dancer case to support his contention that the State’s remarks were improper. In Dancer, the State, during its closing argument, asserted the following, “Ladies and gentlemen, there are no other options. Either he [Dancer] is criminally responsible for his act or he walks out the doors of this courtroom to your neighborhood.” Id. at 589(¶ 28). The Dancer court found:

[T]he prosecutor was not arguing a statement of fact that was in evidence or that was even relevant to the issue before the jury — Dancer’s guilt or innocence. The statement was made with the intent to frighten the jurors, and such a tactic is impermissible. Still, albeit improper the comment does not constitute reversible error. ... [T]he test to determine whether an improper argument by a prosecutor requires reversal is whether the natural and probable effect of the improper argument of the prosecuting attorney is to create an unjust prejudice against the accused as to result in a decision influenced by the prejudice so created. In Clemons v. State, 320 So.2d 368, 372 (Miss.1975), we explained that we would not withhold a reversal where prosecutorial comments are so inflammatory that in the judgment of this Court they influenced the verdict of the jury and therefore prevented a fair trial.

Id. at 590 (¶¶ 33-34) (citation omitted) (emphasis added). Hence, the facts of Dancer are not analogous to the facts here.

¶ 24. We find that the prosecutor’s comment was not an appeal to the fears of the jury. The State was merely making an argument to buttress the credibility of Brothern to the jury. This is demonstrated in the State’s comment, “He is telling you the truth.”

S. Weight and Sufficiency of the Evidence

¶ 25. Stubbs contends that the jury’s verdict is against the overwhelming weight of the evidence. “In determining whether a jury’s verdict is against the overwhelming weight of the evidence, [an appellate] court must accept as true the 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.” Herring v. State, 691 So.2d 948, 957 (Miss. 1997) (citing Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989)). “Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will [an appellate] court disturb it on appeal.” Id. (citing Benson v. State, 551 So.2d 188, 193 (Miss.1989)). “Thus, the scope of review on this issue is limited in that all evidence must be construed in the light most favorable to the verdict.” Id. (citing Mitchell v. State, 572 So.2d 865, 867 (Miss.1990)).

¶ 26. Stubbs criticizes the evidence presented at trial. First, he attacks Broth-ern’s credibility by pointing out that Brothern is an admitted drug user. Second, he comments that the micro-cassette recorder that Brothern was carrying during his drug buy did not record anything. Agent Vanderslice and Brothern explained that the record button was accidently turned off. Stubbs argues that this accidental turning off the micro-cassette recorder is incredulous and unbelievable. Third, Stubbs, emphasizes Brothern’s testimony that the cocaine offered at trial looked different from the cocaine he purchased from Stubbs. Fourth, Stubbs claims that there were two other people in the trailer at the time Brothern claims to have purchased the cocaine from him. Lastly, Stubbs points out that the money Brothern used to purchase the cocaine was found in Tiffany Coleman’s, Stubbs’s girlfriend, pockets. Thus, Stubbs concludes that the evidence was insufficient to support a guilty verdict.

¶ 27. We find that Stubbs’s assertions of error regarding the weight and sufficiency of the evidence are without merit. The jury heard the evidence and found against Stubbs. We emphasize that it is the jury’s duty to weigh witness credibility. Pate v. State, 419 So.2d 1324, 1326 (Miss.1982). Obviously, the jury gave weight to Brothern’s testimony, and we will not second-guess it. Furthermore, Stubbs’s conviction does not rest on Broth-ern’s testimony alone. Agent Vanderslice attested that he was familiar with Stubbs’s voice and heard the sale transaction over Brothern’s body transmitter. Agent Vanderslice explained that he first met Stubbs in 1995 and subsequently had several chances to talk to Stubbs through interviews and personal conversations. The jury determined that from the evidence presented at trial that Stubbs committed the crime of selling cocaine. This Court will not substitute its judgment for that of the jury. Without a doubt, reasonable persons could find Stubbs guilty on the evidence presented.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF CONVICTION OF THE SALE OF COCAINE AND SENTENCE OF NINETEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE LAST FIVE YEARS TO BE SERVED ON POST RELEASE SUPERVISION, AND FINE OF $5,000, $120 IN RESTITUTION, AND $500 IN ATTORNEY’S FEES, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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


text:
    Christopher LANCASTER, Sr., a/k/a Chris Lancaster, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00050-COA.
    Court of Appeals of Mississippi.
    Jan. 13, 2004.
    Rehearing Denied May 4, 2004.
    Certiorari Denied July 22, 2004.

      Cynthia Ann Stewart, Jackson, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Christopher Lancaster was convicted of capital murder by a jury in the Circuit Court of Simpson County and sentenced to life without the possibility of parole in the Mississippi Department of Corrections. Feeling aggrieved by this decision, Lancaster presents the following four issues on appeal: (1) whether the indictment is void because it fails to set forth the essential elements of the underlying offense of burglary and/or assault, (2) whether the trial court improperly granted instruction numbers S-4 and S-5A, (3) whether the trial court erred in failing to grant an instruction to the jury that both Allison and Christopher Lancaster were the parents of Christopher Lancaster, Jr. and neither had the right to keep him from the other, and (4) whether the charge of capital murder in this case violates the federal and state constitutional prohibitions against excessive punishments.

¶ 2. Ascertaining no error, we affirm.

FACTS

¶ 3. On May 29, 1999, Christopher Lancaster obtained a ride from Jackson, Mississippi to Simpson County in search of his wife, Allison Lancaster, and his toddler son, Christopher, Jr. Upon obtaining directions to his mother-in-law’s trailer home, he drove to the home and abruptly entered the home. A struggle ensued wherein Allison shot Christopher. Upon grabbing the child while Christopher was temporarily disabled, Allison exited the home and ran toward a neighbor’s house. Before she reached her destination, Christopher caught up with her, snatched the child from her arms, and shot her multiple times.

¶ 4. Lancaster was indicted for, and convicted of, capital murder. His motion for a JNOV or, in the alternative, a new trial was denied, leading to this appeal.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Sufficiency of the Indictment

¶ 5. The pertinent part of the indictment charging Lancaster alleged that he engaged in the following:

[That] on or about the 29th day of May, A. D., 1999, [Lancaster] did then and there willfully, unlawfully and felo-niously with or without any design to effect death, kill Allison Lancaster while in the commission of the crime of burglary as set forth by Section 97-17-33 of the Mississippi Code of 1972, annotated, in that on or about May 29, 1999 in Simpson County, Mississippi, Chris Lancaster did willfully, unlawfully, felo-niously and burglariously break and enter a trailer belonging to Rusty May and in which trailer valuable things were kept for use, said Chris Lancaster having the intent to commit an assault therein, in violation of Section 97-3-19(2)(e) of the Mississippi Code of 1972, annotated, as amended....

¶ 6. Lancaster first asserts that the indictment fails to make clear whether the predicate offense, burglary, involves larceny or an assault.

¶ 7. We find no merit in Lancaster’s argument. The indictment plainly states that Lancaster was charged with killing Allison “while in the commission of the crime of burglary as set forth by section 97-17-33 of the Mississippi Code of 1972.” This language unequivocally expresses that Lancaster was charged with murder while engaged in the underlying crime of burglary. Moreover, the language of “intent to commit an assault therein” specifically satisfies the “intent to commit a crime” element of burglary. While the indictment includes the language of “in which trailer valuable things were kept for use,” this language is superfluous, as nothing in the indictment hints that Lancaster stole anything from the trailer of Rusty May. The said language specifically describes the trailer which was broken and entered into and in no way modifies “the intent to commit a crime” language of the indictment which is reflective of the burglary statute.

¶ 8. Lancaster secondly argues that the indictment fails to set out the elements of burglary. He first acknowledges that his indictment charges that he broke and entered into the trailer home with the “intent to commit an assault.” However, he explains that this language is insufficient to charge an underlying crime for the burglary because, as opposed to such crimes as simple assault or aggravated assault, there is no such crime as an “assault.” Lancaster states that since a burglary indictment requires a breaking and entering with “intent to commit a crime,” the indictment fails to charge capital murder during the course of a burglary.

¶ 9. The indictment must be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him. Peterson v. State, 671 So.2d 647, 653-54 (Miss.1996); URCCC 7.06. Generally, whether an indictment in the language of the statute is sufficient, or whether other words or acts are necessary to properly charge the commission of a crime is dependent upon the nature of the offense and the terms in which it is described by the statute. Jones v. State, 856 So.2d 285, 289(¶12) (Miss. 2003). If the statute fully and clearly defines the offense, the language of the statute is sufficient to provide notice of the crime charged. Id. (citing Johnson v. State, 475 So.2d 1136, 1139 (Miss.1985)).

¶ 10. We find that Lancaster’s contention is wholly without merit. The language of the indictment explicitly mirrors the burglary statute of Mississippi Code Annotated section 97-17-33, as it states, “(Lancaster) did willfully, unlawfully, felo-niously and burglariously break and enter a trailer ... having the intent to commit an assault therein.” Moreover, the language of “intent to commit assault” has been held to be valid in an indictment to depict the predicate crime for burglary. See Booker v. State, 716 So.2d 1064, 1068(1112) (Miss.1998) (Indictment which charged defendant with burglary with the intent to commit assault provided sufficient notice of the charges against him.)

¶ 11. Finally, Lancaster asserts that his indictment failed to set forth the essential elements of the crime of assault. He explains that it did not indicate what sort of assault, what degree of bodily injury or the intended victim of said assault. According to Booker:

The rule is well established, however, that even though in burglary and statutory housebreaking the intent, as defined by the law, is simply to commit a felony, it is not sufficient for the indictment to use these general words; the particular felony intended must be specified. The allegation of the ulterior felony intended need not, however, be set out as fully and specifically as would be required in an indictment for the actual commission of that felony. It is ordinarily sufficient to state the intended offense generally, as by alleging an intent to steal, or commit the crime of larceny, rape or arson.

Booker, 716 So.2d 1064, 1068(¶ 12) (citing 13 Am.Jur.2d Burglary § 36 (1964)). We, therefore, find that it was not necessary for the State to supply the elements of assault, as it was used as the underlying intent crime of burglary. Moreover, we find, that in the case sub judice, Lancaster was sufficiently informed of the underlying felony and the essential facts constituting the offense of capital murder.

2. Jury Instructions S-I and S-5A

¶ 12. Lancaster argues that the court improperly granted jury instructions S-4 and S-5A. He explains that the instructions allowed the State to try him on both capital murder, simple murder, and manslaughter. He further asserts that the State lacked a “cohesive theory” in its prosecution. According to Lancaster, there was no way to fashion a defense as he was denied the ability to defend himself.

¶ 13. We see no merit in Lancaster’s contentions. Jury instructions S-4 and S-5A only concerned simple murder and the obligation of the jury, if the evidence so supported, to find Lancaster guilty of simple murder. This Court fails to see how the trial court’s granting of this jury instruction obstructed Lancaster’s ability to prepare his defense. It was the purpose of the indictment to give notice to Lancaster of the charge against him, and, as we have already determined, the indictment in the case sub judice was sufficient to achieve that purpose. We, therefore, see no prejudice against Lancaster in this regard.

3. Parental Instruction

¶ 14. Lancaster asserts that the trial court erred when it failed to grant an instruction to the jury that both Allison and Christopher were the parents of Junior and that neither had the right to keep him from the other. He explains that the jury could have easily labored under the misapprehension that it was improper for Christopher to seek out his child. He proclaims that such an instruction is consistent with the law and that the denial of this instruction denied him the right to present his defense.

¶ 15. We find no merit in Lancaster’s contention on this issue. The evidence demonstrates that Lancaster proposed this impromptu parental instruction during a review of jury instructions by both counsel and the judge. Upon the trial judge’s denial of his proposal, Lancaster immediately retorted, “Judge I do suggest for the record there is a statute to the effect that both parents are considered equal guardians of the child.” While making this assertion, Lancaster presented no specific authority to support his proposal then, and does not now, give legal support for his argument of the necessity for the instruction.

¶ 16. Moreover, we also do not find, nor does Lancaster explain how, the denial of this instruction denied him the right to present his defense. This case did not involve a question of whether Lancaster had a right to possession of the child, but involved whether Lancaster committed capital murder while breaking and entering a trailer that did not belong to him. Moreover, even if Lancaster had a right to the child, any such right would not have carried with it a right to break and enter the trailer and murder the child’s mother.

A Charge of Capital Murder as Viola-tive of Prohibition Against Excessive Punishment

¶ 17. Lancaster next argues that the charge of capital murder in this case violates the federal and state constitutional prohibitions against excessive punishment. While Lancaster cites Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) and Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), as supporting legal authority for this proposition, we find nothing in those cases to support Lancaster’s arguments. Moreover, Lancaster brings forth this issue for the first time in his appeal. An issue not raised before the trial court may not be raised for the first time on appeal. Cole ex rel. Cole v. Buckner, 819 So.2d 527, 530(¶ 9) (Miss.2002).

¶ 18. The judgment of the trial court is affirmed in all respects.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF SIMPSON COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SIMPSON COUNTY.

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

      . Mississippi Code Annotated section 97-17-33 (Rev.2000) states:

        (1) Every person who shall he convicted of breaking and entering, in the day or night, any shop, store, booth, tent, warehouse, or other building or private room or office therein, water vessel, commercial or pleasure craft, ship, steamboat, flatboat, railroad car, automobile, truck or trailer in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony, or who shall be convicted of breaking and entering in the day or night time, any building within the curtilage of a dwelling house,, not joined to, immediately connected with or forming a part thereof, shall be guilty of burglary, and imprisoned in the penitentiary not more than seven (7) years, (emphasis added).


author: GRIFFIS, J.,

text:
    Broderick Barshawn POWELL and Markieves Raymond McAffee, a/k/a Markives Raymond McAfee, Appellants v. STATE of Mississippi, Appellee.
    No. 2002-KA-01071-COA.
    Court of Appeals of Mississippi.
    Jan. 20, 2004.
    Rehearing Denied May 4, 2004.
    Certiorari Denied July 29, 2004.

      James A. Williams, Meridian, attorney for appellants.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Broderick Barshawn Powell and Markieves Raymond McAffee appeal their conviction for robbery by use of a deadly weapon. They were sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections and pay restitution of $2,400. In their appeal, Powell and McAffee contend that (1) jury instruction C-9 was improper and warrants a new trial, (2) in-court identifications by Boyd were inadmissable, (3) the trial judge erred when he admitted evidence that McAffee participated in an attempted robbery at a Popeye’s restaurant, (4) Powell and McAffee were denied a fair trial because the State was allowed to put on evidence of a prior inconsistent statement, (5) the verdict was against the overwhelming weight of the evidence, and (6) Powell and McAffee were denied effective assistance of counsel. We find no error and affirm.

FACTS

¶ 2. On June 22, 2001, Joseph Boyd and Cora Brown were robbed as they closed the Ryan’s Restaurant in Meridian. Boyd was the assistant manager, and Brown was an employee. Around midnight, as Boyd was locking the door, two men appeared and told them to get down and give them their money. The two men were wearing bandanas partially covering their faces and each man had a gun.

¶ 3. One of the men told Boyd and Brown to go back inside and open the safe. All four went inside. Boyd turned off the alarm, but activated the ambush code. The code alerted the alarm company that a robbery was in progress. Boyd opened the door to the office, and the men told him to open the safe. One of the men took all the money from the safe. The two men then left the restaurant. An officer from the Meridian Police Department arrived approximately five minutes later.

¶ 4. The grand jury indicted Broderick Barshawn Powell and Markieves Raymond McAfee for robbery by the exhibition of a deadly weapon. At trial, Boyd testified that one of the men was around six feet tall and weighed approximately three hundred pounds. The other man was shorter, around five foot six inches and weighed approximately one hundred and twenty five pounds. Boyd testified that the taller man had a rifle, and the shorter man carried a revolver.

¶ 5. Three days after the robbery, the police brought Boyd twelve photographs of potential suspects. Boyd was not able to identify the robbers from the photographs. Boyd testified that he was concerned that he might not be able to make a positive identification because the two men were wearing bandanas covering their mouth and nose.

¶ 6. Later, Boyd was shown photographs again at the police station. This time he was able to identify one of the men. Boyd testified that the second time he looked at the photos, he concentrated on the upper portion of the men’s faces. He testified that he could identify the shorter man because this man had really thick dark eyebrows and short hair. Boyd testified that he was sure he identified the shorter man, which he later discovered was McAf-fee. At trial, Boyd identified McAffee as the shorter man.

¶ 7. Boyd also testified that he recognized Powell from the pictures shown to him by the police, but not from his own recollection. Boyd testified that Powell had the same build as the taller man who robbed him.

¶ 8. Helen Earl was McAffee’s girlfriend. She testified that, on the afternoon before the robbery, McAffee told her he needed money and did not have a job. Earl testified that McAffee later told her that, he had money. Earl testified that over the next several days McAffee purchased a car stereo and an outfit.

¶ 9. Rhonda Toole was Helen Earl’s sister. She testified that she was at home in her room the night before the robbery. She heard McAffee tell Dennis Earl that he and his cousin where going to rob Popeye’s. Toole also testified that, on the night after the robbery, Powell and McAf-fee were bragging about robbing Ryan’s Restaurant. During their comments about the robbery, Powell and McAffee did not say how much money they stole, but they were showing jewelry, clothing and shoes that they had purchased. According to Toole, Powell and McAffee said that they parked their car at K-Mart, walked to Ryan’s, and waited for “the man to come out.” Toole testified that Powell and McAffee claimed that they pulled a gun on the man and told him to go back inside.

¶ 10. Yolanda Easley was a friend of Powell and McAffee. She testified that, on the night of the robbery, about 10:00 p.m., she and Powell were going to the store. McAffee drove up and asked Powell if they were “going to do that thing.” Powell told Easley that he would be back and left with McAffee.

¶ 11. A few nights later, Easley saw Powell at a club. Easley testified that Powell had a new watch and bracelet. Easley testified that she heard Powell tell Toreno Griffen that he and McAffee took $2,700 at the robbery at Ryan’s.

¶ 12. The jury found Powell and McAf-fee guilty of robbery by use of a deadly weapon. Powell and McAffee were sentenced to twenty-five years in the custody of the MDOC and to pay restitution of $2,700.

ANALYSIS

I. Whether the trial judge erred in giving jury instruction C — 9.

¶ 13. Powell and McAffee claim the trial judge erred when he charged the jury with instruction C-9. This instruction stated that the jury could find McAffee guilty if it found he acted alone or with another when he robbed Ryan’s.

¶ 14. At trial, Powell and McAffee failed to object to this instruction. If no contemporaneous objection is made, the error, if any, is waived. Walker v. State, 671 So.2d 581, 597 (Miss.1995). Accordingly, we find that Powell and McAffee failed to preserve this issue on appeal.

¶ 15. Notwithstanding the procedural bar, this issue is without merit. Instruction C — 10 is worded in a manner similar to C-9. The only difference is that C-10 allowed the jury to find Powell guilty if he acted alone or with another. There was no prejudice in the use of these instructions. The instructions correctly told the jury what it must find when it evaluated the evidence before it. We find no error and affirm.

II. Whether the defendants were denied a fair trial when an in-court identification is allowed where no valid out of court identification has been made of either defendant.

A. Whether Boyd’s in-court identification of Powell denied him a fair trial.

¶ 16. Powell and McAffee argue the trial judge erred when Boyd was allowed to identify Powell during the trial. The basis for this claim is Boyd’s inability to identify Powell in the photographic lineup. Powell and McAffee argue the court should have held a hearing outside the presence of the jury to determine the admissibility of Boyd’s identification of Powell.

¶ 17. At trial, Boyd admitted that he did not identify Powell from the photographs shown to him by the police. The prosecutor then asked Boyd if Powell appeared to have the same build as the large man who robbed him. Defense counsel objected to the speculative nature of this question. The judge overruled the objection, and Boyd was allowed to answer. Boyd affirmatively testified that Powell had the same build as the larger man who robbed him.

¶ 18. Again, Powell and McAfee failed to preserve this issue for appeal because they did not object on the ground they now argue. Stringer v. State, 279 So.2d 156, 158 (Miss.1973). Even had they objected, this issue is without merit. Boyd did not identify Powell as the man who robbed him. He simply observed that Powell’s build was similar to the taller man. This observation did not rise to the level of an identification. Boyd even stated that he could not say from his own personal recollection if Powell was one of the men who robbed him. Accordingly, this issue is without merit.

B. Whether’s Boyd’s identification of McAffee from photos was imper-missibly suggested by law enforcement

¶ 19. On the witness stand, Boyd testified that he could identify McAffee from the photos because he had “really thick dark eyebrows.” McAffee claims that this characteristic singled him out from the other photographs. No objection was made to Boyd’s identification of McAf-fee. The defendant waives his objection to an in-court identification when he fails to object at trial. Fleming v. State, 604 So.2d 280, 302 (Miss.1992). Furthermore, since no offer of proof was made as to the other- photographs, this Court cannot determine if one photo was more prejudicial than the others. Accordingly, this issue is without merit.

III. Whether the trial court erred in admitting evidence that McAffee planned an attempted robbery at Popeye’s Restaurant

¶20. The prosecution planned to call Rhonda Toole to testify that McAffee planned to rob a Popeye’s Restaurant. McAffee and Powell moved the court to exclude Toole from testifying and argued that Toole’s testimony was inadmissible under Mississippi Rules of Evidence 402 and 404.

¶ 21. Evidence of other bad acts committed by a defendant is not generally admissible as a part of the State’s case-in-chief. Neal v. State, 451 So.2d 743, 758 (Miss.1984). Mississippi Rule of Evidence 404(b) provides “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent....”

¶ 22. “If prior bad acts evidence falls within a 404(b) exception, its prejudicial effect must still be weighed against its probative value to determine admissibility under Mississippi Rule of Evidence 403.” Underwood v. State, 708 So.2d 18, 32(¶ 41) (Miss.1998). The Mississippi Supreme Court has required that when evidence is offered under M.R.E. 404(b) and there is an objection which is overruled, the objection is deemed an invocation of the right to a balancing analysis under Rule 403 and a limiting instruction. Robinson v. State, 735 So.2d 208, 210(¶ 4) (Miss.1999).

¶ 23. Here, the trial judge properly followed the required procedure. Upon the defense motion, the trial judge held that “Mr. McAffee makes oral statements of what he was going to do and he ended up robbing Ryan’s. I don’t know what he intended for that language to mean only that it was said. So, I think it is more probative than prejudicial, and I will deny the motion.” The judge instructed the jury not to consider the testimony as a substitute for proof that McAffee committed the Ryan’s robbery.

¶ 24. The supreme court has held that we “accord the Circuit Court a certain leeway. The weighing and balancing task assigned by Rule 403 is not one susceptible of mechanical performance. It requires judgment and because such the law gives the Circuit Court discretion.” Jenkins v. State, 507 So.2d 89, 93 (Miss.1987). Here, we find no abuse of discretion by the trial judge. Toole’s testimony was properly allowed. This assignment of error is without merit.

IV. Whether or not Powell and McAf-fee were denied a fair trial when the prosecution was allowed to put on evidence of a prior inconsistent statement.

¶25. During her testimony, Rhonda Toole contested a few portions of her statement given to Detective J.C. Boswell. To discredit her, the prosecution attempted to admit her statement into evidence. The judge refused to allow it. The prosecution called Detective Boswell to establish the procedure followed when he takes a witness’s statement. Detective Boswell testified that he asked Toole questions, and then typed her answers into the computer. He then printed out a copy and asked Toole to read it. Detective Boswell testified that he asked Toole to initial each answer, indicating that the words were hers and that it was the truth. Detective Boswell testified that Toole did this and voiced no problems with the statement’s accuracy.

¶ 26. However, on cross-examination, the defense began to question Detective Boswell about the substance of the statement. The prosecution objected, and the judge warned the defense that it was about to “open the door” by questioning Detective Boswell on the content of Toole’s statement. The defense replied, “I mean, that’s fíne” and proceeded to question Detective Boswell about the content of the statement.

¶ 27. On re-direct, the prosecution again tried to have the statement admitted into evidence. The trial judge again denied this request. However, the prosecution was allowed to question Detective Boswell about the content of Toole’s statement. The defense did not object to the re-direct examination.

¶ 28. On appeal, Powell and McAffee argue that they were denied a fair trial because Detective Boswell was allowed to testify about Toole’s inconsistent statements. The supreme court has held that where opposing counsel “opens the door,” the prosecution may enter and develop a matter in great detail. Jefferson v. State, 386 So.2d 200, 202 (Miss.1980). If a defendant opens the door to a line of testimony, ordinarily he may not complain about the prosecutor’s decision to accept the benevolent invitation to cross the threshold. United States v. Delk, 586 F.2d 513, 516 (5th Cir.1978). Furthermore, it is not error if the district attorney elicits hearsay statements that are provoked by defense counsel’s previous questioning of that witness on the same subject matter. Fairley v. State, 349 So.2d 1050, 1052 (Miss.1977).

¶ 29. Here, defense counsel questioned Detective Boswell about the content of Toole’s statements. The judge even warned the defense that it was about to “open the door,” and the defense counsel replied that it was “fine.” Powell and McAffee cannot now complain that they did not receive a fair trial because the prosecution was also allowed to question Detective Boswell about the content of Toole’s statement. Accordingly, this issue is without merit.

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

¶ 30. Powell and McAffee assert that the verdict was against the overwhelming weight of the evidence. The applicable standard of review is stated 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, 81 (¶ 14) (Miss.2001) (quoting Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998)).

¶ 31. At trial, the defense presented no credible evidence tending to demonstrate the innocence of Powell and McAffee. The defense offered no reasonable explanation for their actions.

¶ 32. The jury heard the testimony of several witnesses that implicated Powell and McAffee. McAffee was identified by Boyd as the shorter man who had a revolver. Helen Earl testified that McAffee told her he needed money and did not have a job. Helen Earl testified that the same night McAffee told her he had money and bought a car stereo and an outfit over the next several days.

¶ 33. Rhonda Toole testified that on the day before the robbery, she heard McAffee tell Dennis Earl that he and his cousin where going to rob Popeye’s. Toole also testified that on the night after the robbery, Powell and McAffee were bragging about robbing Ryan’s Restaurant. They did not say how much money they stole, but they were showing jewelry, clothing and shoes that they had purchased. Toole also testified that Powell and McAffee said they parked their car at K-Mart, walked to Ryan’s, and waited for “the man to come out.” Toole testified that Powell and McAffee said they pulled a gun on the man and told him to go back inside.

¶ 34. Yolanda Easley testified that on the night of the robbery, about 10:00 p.m., she and Powell were going to the store. McAffee drove up and asked Powell if they were “going to do that thing.” Powell told Easley that he would be back and left with McAffee.

¶35. Easley saw Powell a few nights later at a club. She said he had a new watch and bracelet. Easley testified that she heard Powell tell Toreno Griffen that he and McAffee took $2,700 at the robbery at Ryan’s.

¶ 36. The identification of one of the robbers by Boyd, the statements made by Powell and McAffee to others, and their behavior after the robbery are sufficient to sustain a finding by a reasonable minded jury that Powell and McAffee committed armed robbery. Accepting as true all evidence favorable to the State, this Court is compelled to conclude that the evidence was of such weight to support the jury’s findings. We do not find that the evidence in favor of the defendants was overwhelmingly contrary to the verdict. Therefore, we find this assignment of error to be without merit.

VI. Whether Powell and McAffee were denied effective assistance of counsel.

¶ 37. Powell and McAffee claim they were denied effective assistance of counsel. In reviewing a claim of ineffective assistance of counsel, the defendant must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced him in such a way that he was denied a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The deficiency is assessed by looking at the totality of the circumstances. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). An appellate court applies “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Burns v. State, 813 So.2d 668, 673(¶ 14) (Miss.2001).

¶ 38. In reviewing the complaints about trial counsel, Powell and McAfee have not met their burden. Powell and McAffee argue that their attorney did not properly object to in-court identifications. This was not so. Their counsel placed evidence before the jury that both witnesses had failed to identify Powell.

¶ 39. Powell and McAffee also argue that their attorney should have objected to the admittance of testimony concerning the botched Popeye’s robbery. Their counsel did object to this testimony. The objection was overruled.

¶ 40. Finally, Powell and McAffee claim that while their counsel did object to hearsay, there were times when hearsay came in without objections. To support this claim, Powell and McAffee fail to state with specificity when and where counsel failed to make objections. Therefore, we find that Powell and McAffee have not met their burden of demonstrating deficient performance and resulting prejudice. We find this issue to be without merit.

¶ 41. Accordingly, the judgment of the Circuit Court of Lauderdale County is affirmed.

¶ 42. THE JUDGMENT OP THE CIRCUIT COURT OF LAUDERDALE COUNTY OP CONVICTION OF BRO-DERICK BARSHAWN POWELL OP ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE YEARS AND RESTITUTION OF $2,400; AND CONVICTION OF MARKIEVES RAYMOND MCAFFEE OF ARMED ROBBERY AND SENTENCE OF FIFTEEN YEARS AND RESTITUTION OF $2,400, BOTH IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS ARE ASSESSED TO LAUDER-DALE COUNTY.

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

      . Toole testified she could not pronounce the cousin’s name, but that she knew Powell was not McAffee’s cousin.


author: CHANDLER, J., IRVING, J.,

text:
    Travis Ledell CHAMBERS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01266-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2004.
    Rehearing Denied April 13, 2004.
    Certiorari Denied July 22, 2004.

      Leslie D. Roussell, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   CHANDLER, J.,

for the Court.

¶ 1. Travis L. Chambers was convicted for the crime of sale of cocaine within fifteen hundred feet of a church in Waynesboro, Mississippi. Chambers was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections as a prior convicted felon. Following the trial, Chambers’ motions for a JNOV or in the alternative, a new trial were denied by the trial court. Feeling aggrieved, Chambers appeals the following errors:

I.THE DISTRICT ATTORNEY VIOLATED BATSON BY USING HIS PEREMPTORY CHALLENGES TO PURPOSEFULLY STRIKE AFRICAN AMERICANS FROM THE JURY POOL, EVEN THOUGH THE RACE NEUTRAL REASONS GIVEN FOR THE STRIKES APPLIED TO WHITES WHOM THE STATE ACCEPTED.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE STATE OF MISSISSIPPI TO INTRODUCE THE ALLEGED COCAINE INTO EVIDENCE OVER THE OBJECTION OF THE DEFENDANT.

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO GRANT A DIRECTED VERDICT AND THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 2. Finding the issues raised by Chambers without merit, we affirm the trial court’s rulings.

FACTS

¶ 3. On September 12, 2001, undercover officer Chad McElvin and confidential informant Karen Gibbs met in Wayne County, Mississippi in order to purchase narcotics from drug violators in Waynesboro, Mississippi. Gibbs’ automobile was wired with audio and video equipment in order to record the transactions. As Gibbs turned down Central Avenue in Waynesboro, Mississippi three African American males approached the automobile and offered to sell them some crack cocaine. Two males each gave Gibbs a rock-like substance in exchange for forty dollars. McElvin and Gibbs left Central Avenue and proceeded to a post-buy location where they handed the substances to Officer Martin Over-street, who is the Commander of the South Mississippi Narcotics Task Force.

¶ 4. The audio and video tapes were then removed from the automobile. The videotape was later shown to another Waynes-boro police officer, Leonard Frost, who viewed the tape, and identified Chambers as a seller of the substance. Frost testified that he knew Chambers and his parents from his years on the police force which enabled Frost to identify Chambers on the videotape. The undercover officer, Chad McElvin, also identified Chambers as a seller of the illegal substances through a photographic lineup. Officer Overstreet testified that the drugs were sold within a tenth of a mile of a church on Central Avenue.

¶ 5. Chambers was tried and convicted for sale of cocaine within fifteen hundred feet of a church. He was sentenced to serve a term of twenty years in the Mississippi Department of Corrections.

I. DID THE DISTRICT ATTORNEY VIOLATE BATSON BY USING HIS PEREMPTORY CHALLENGES TO PURPOSEFULLY STRIKE AFRICAN AMERICANS FROM THE JURY POOL, EVEN THOUGH THE RACE NEUTRAL REASONS GIVEN FOR THE STRIKES APPLIED TO WHITES WHOM THE STATE ACCEPTED?

¶ 6. Chambers claims that the proscriptions against using peremptory jury challenges for racially-motivated reasons, as announced in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), were violated when the State used four of its permitted six challenges to exclude African American jurors. Chambers argues that the race-neutral reasons offered by the State were a pretext to hide the State’s true purpose of excluding African American jurors. During voir dire at Chambers’ trial, both Caucasian and African American jurors answered questions that they had relatives in their families who were prior convicted felons or had pending felony charges. Chambers argues that the striking of African American jurors on the basis of a prior felony record violated Batson because Caucasian jurors whose family members included felons were not struck from the panel.

¶ 7. Batson provides the court with procedures to follow in detecting the use of peremptory challenges to remove members of an identified racial group from jury service based on their racial classification. Batson, 476 U.S. at 96, 106 S.Ct. 1712. Traditionally, under Batson, in order for the defendant to raise a prima facie case that the prosecution has improperly struck a potential juror on the basis, of race, it must be shown (1) that he is “a member of a cognizable racial group,” and that the prosecution has “exercised peremptory challenges to remove from the venire members of the defendant’s race”; (2) that the defendant is entitled to rely on the fact that peremptory challenges allow “those to discriminate who are of a mind to discriminate”; and (3) that “these facts and any other relevant circumstances raise an inference that the [State] used that practice to exclude the veniremen from the petit jury on account of their race.” Id. The trial court should consider all relevant circumstances in determining whether the defendant has made the requisite prima facie showing of discrimination. Id. If the trial court determines that the defendant has made a prima facie showing of discrimination, the burden then shifts to the State to announce race-neutral reasons for the exclusion of those people from the venire. Id. at 97, 106 S.Ct. 1712.

¶ 8. This Court points out that the Mississippi Supreme Court has adopted the United States Supreme Court’s decision in Powers v. Ohio, 499 U.S. 400, 415, 111 S.Ct. 1364, 113 L.Ed.2d 411, (1991), which found contrary to Batson, that people of the same race are not required for racially based challenges. In Puckett v. State 788 So.2d 752 (¶ 10) (Miss.2001) the court wrote:

that a defendant may object to racially-based exercises of peremptory challenges whether or not the excluded jurors and the defendant are of the same race. This holding, in essence, eliminates the first two factors required by Batson. Bush v. State, 585 So.2d 1262, 1267-68 (Miss.1991). Thus, the pivotal question is “whether the opponent of the strike has met the burden of showing that proponent has engaged in a pattern of strikes based on race or gender, or in other words ‘the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ ” Randall v. State, 716 So.2d 584, 587 (Miss.1998) (quoting Batson, 476 U.S. at 94, 106 S.Ct. at 1721).

¶ 9. The defendant is also allowed to rebut the reasons offered by the State. Bush v. State, 585 So.2d 1262, 1268 (Miss. 1991). However, if the defendant offers no rebuttal, the trial court is to only examine the reasons given by the State. Id. The Mississippi Supreme Court requires the trial court to make findings of fact on the record to support the court’s ultimate ruling on a Batson challenge. Hatten v. State, 628 So.2d 294, 298 (Miss.1993). When these findings are subjected to review on appeal, the standard for appellate review is that the appellate court may not intercede unless the trial court’s findings appear clearly erroneous or against the overwhelming weight of the evidence. Id. at 299.

¶ 10. The Court now turns to the facts of this particular case. Because Chambers’ case was not a capital case, the State was given six peremptory challenges in the selection of a jury. The State used five challenges, four of which were exercised against African American venire members. After the State had exercised peremptory challenges to remove the African American venire members, the trial judge asked the State to give its reasons for striking those potential jurors. The State offered the following reasons for those four prospective jurors.

¶ 11. Prospective juror number three was struck as a potential juror by the State because Chambers’ attorney had represented her daughter in a legal matter. The legal representation by defense counsel occurred approximately a year before Chambers’ trial. The defense offered no rebuttal to the State’s reason for striking this person.

¶ 12. Prospective juror number six or a member of her immediate family had a pending felony charge in Wayne County, Mississippi and the Waynesboro Police were involved. The State argued that it did not want a juror on the panel with a pending felony drug charge. The defense offered no rebuttal to the State’s reason for dismissing the prospective juror.

¶ 13. Prospective juror number sixteen gave no verbal comments to the questions asked during the voir dire of the jury. The State used a strike against her based on recommendations from local law enforcement. The local officers knew this prospective juror had numerous relatives who had been charged, convicted or who were suspected of drug activity. The defense offered no rebuttal other than questioning whether the State had done the same thing with the Caucasian panel members. The trial judge accepted the reasons given by the State as neutral and nonpre-textual.

¶ 14. Prospective juror number twenty-one had a family member who was convicted in Wayne County, Mississippi of felony DUI third offense. Law enforcement informed the State that this prospective juror allegedly had relatives in the illegal drug business. In response, the defense argued that the State had allowed juror number twenty to remain on the panel even though his relative was convicted of a crime in Wayne County, Mississippi approximately two years earlier. The State responded that law enforcement recommended choosing number twenty despite the family member’s felony charge. The defense offered no rebuttal to the response given by the State.

¶ 15. Prospective juror twenty-five is a Caucasian who was chosen as an alternate for the jury. Her family member or close friend was convicted of burglary in Wayne County, Mississippi. She said she could be impartial and stated that she had no hard feelings against law enforcement. The defense offered no rebuttal to the tendering of number twenty-five as an alternate to the jury.

¶ 16. Prospective juror number twenty-seven is a Caucasian who was chosen as an alternate for the jury. Her family member or close Mend was convicted of a drug crime in Oklahoma. She said she could be impartial and believed the drug offender was treated fairly by law enforcement. Defense counsel offered no rebuttal to the tendering of number twenty-five as an alternate juror.

¶ 17. Chambers asks this Court to reverse the trial court’s rulings as to the four prospective jurors. Therefore, the facts and circumstances must raise an inference that the prosecutor used his peremptory challenges for a discriminatory purpose. Even though the State used only four of the six strikes available, African Americans remained as prospective jurors. As finally selected, the jury panel included Caucasians and African Americans.

¶ 18. The defendant failed to show the State used the challenges in a discriminatory manner. The facts reveal two of the individuals were excluded because they had a pending felony charge or a family member who had a felony charge that involved drugs. The other person was struck because Chambers’ counsel had represented her daughter in an earlier proceeding.

¶ 19. Although three Caucasians remained on the jury panel as jufors or alternates, there is no evidence the State’s selection of these individuals was pretextual. As previously stated, one person was allowed to serve on the jury panel although he had a family member with a felony record. However, the State explained that law enforcement recommended selecting that person even though one of his family members had a felony conviction. The district attorney stated that he relies on local law enforcement to aid in the selection of jurors because he does not live in Waynesboro, Mississippi. Chambers’ counsel offered no rebuttal to the reason given by the State for selecting this person.

¶ 20. The trial court asked each party if there was any additional information to put in the record before the trial began. Chambers’ counsel proceeded to argue a motion in limine and at no time was a challenge raised regarding the selection of the alternate jurors. The two alternate jurors had relatives with felony convictions against them, but Chambers made no objection to these jurors serving as alternates. Although the two alternate jurors had family members who were previously convicted of a crime, none of the relatives had pending charges nor was there any evidence the relatives were presently involved in the illegal drug business. The alternate jurors were not required to replace a selected jury member.

¶ 21. Our standard of review requires a reversal only if the factual findings of the trial judge are “clearly erroneous or against the overwhelming weight of the evidence.” Tanner v. State, 764 So.2d 385 (¶ 14) (Miss.2000). Any determination made by a trial judge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, (1986), is accorded great deference because it is “based, in a large part, on credibility.” Coleman v. State, 697 So.2d 777, 785 (Miss.1997). Chambers failed to establish any inference of purposeful racial discrimination. “The law does not proscribe the mere incidental exclusion of blacks from a jury.” Govan v. State, 591 So.2d 428, 430 (Miss.1991). After reviewing the record as a whole there are no facts which would show the State excluded jurors based on race. This issue is without merit.

II. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY ALLOWING THE STATE OF MISSISSIPPI TO INTRODUCE THE ALLEGED COCAINE INTO EVIDENCE OVER THE OBJECTION OF THE DEFENDANT?

¶22. Chambers argues that the cocaine and the laboratory test results should not be admissible. First, he points out that the crime lab assistant, Brandi Goodman, testified that she tested two rocks of cocaine. However, the evidence submission form from the crime laboratory stated that Chambers’ evidence was in a “sealed clear plastic bag containing an off-white colored rock like substance.” Chambers argues there is no valid chain of custody because the crime lab submission form indicated one rock while the testimony at trial indicated two rocks. Second, Chambers points out that the State’s undercover officer Chad McElvin, who was with the confidential informant when the actual buy was made, testified that he purchased two rocks of what he believed to be crack cocaine and Martin Overstreet, Commander of the South Mississippi Narcotics Task Force, testified that he submitted two pieces of rock cocaine to the crime lab. The discrepancies in the number of rocks submitted, Chambers argues, create a presumption that the evidence was tampered with in some way, thus destroying the probative value of the evidence.

¶ 23. Admissibility of evidence, in the context of the issue now before us, is governed by the provisions of Mississippi Rule of Evidence 901(a), which requires the proponent to produce “evidence sufficient to support a finding that the matter in question is what its proponents claim.” M.R.E. 901(a). The pertinent question regarding chain of custody is “whether there is any indication of tampering or substitution of evidence.” Wells v. State, 604 So.2d 271, 277 (Miss.1992). Issues involving the chain of custody of evidence are left to the sound discretion of the trial court. Doby v. State, 532 So.2d 584, 588 (Miss.1988). An appellate court “will not reverse the trial court’s ruling except where this discretion has been ‘so abused as to be prejudicial to the defendant.’ ” Lambert v. State, 462 So.2d 308, 312 (Miss. 1984). The record reveals no such abuse of discretion.

¶24. The State contends the material produced at trial was the same material its undercover agent purchased from a person identified as Chambers. Through witnesses the State showed the chain of custody from the undercover agent, Chad McElvin, to the head of the narcotics task force, Martin Overstreet, who sealed the material and placed it into a secure evidence vault at the Mississippi Task Force Narcotics Office. From there, Officer Overstreet retrieved the material in the same sealed bag and delivered the material to the state crime lab, where lab employee, Jamie Bush, signed for receipt of the sealed material. This lab employee did not testify at trial. Rather, another lab employee, Brandi Goodman, who did the actual testing of the substance testified that she received the bag in a sealed condition and that she broke the seal for purposes of retrieving the material for chemical analysis, after which she re-sealed the remaining material. Subsequent testimony showed this resealed material was returned to Wayne County in the form in which it was offered into evidence at trial. There is a presumption of regularity favoring chain of custody conducted by police officers. Barnes v. State, 763 So.2d 216 (¶ 16) (Miss.Ct.App.2000).

¶ 25. As a part of the chain of custody, Chambers questions the number of cocaine rocks obtained during the drug transaction when compared to the evidence submission form of the crime lab. He argues there is a question as to whether the cocaine substance here is the same as that obtained during the actual drug transaction with undercover officer Chad McElvin. Chambers asserts that the evidence may have been commingled or confused with evidence obtained from other drug transactions.

¶ 26. The record reflects that the substance submitted to the lab was sealed and marked for identification. The seal and the identifying marks were intact when received at the lab, and showed no signs of tampering. Because there was no indication of tampering, the trial court correctly admitted the evidence. Goodman testified that she viewed the evidence bag shortly before taking the stand and noticed that it contained three small rocks. A logical explanation is the rocks broke into multiple pieces during the handling, testing and transporting of the substance.

¶ 27. The State met the requirement of Rule 901(a) with substantial proof the material tested at the crime laboratory was the same material obtained by the undercover agent and Martin Overstreet on September 12, 2001. The defendant’s claim that the physical evidence or the test results should have been excluded is without merit.

III. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY FAILING TO GRANT A DIRECTED VERDICT AND WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 28. Motions for directed verdict and motions for JNOV are for the purpose of challenging the legal sufficiency of the evidence. Noe v. State, 616 So.2d 298, 302 (Miss.1993); Strong v. State, 600 So.2d 199, 201 (Miss.1992). In reviewing the sufficiency of the evidence questions, the court is required to view the evidence in the light favorable to the State, giving it the benefit of all reasonable inferences which may be drawn from the evidence, and accepting as true that evidence which supports guilt. McClain v. State, 625 So.2d 774, 778 (Miss.1993). It must not weigh the evidence or its credibility as that is the province of the jury. Id. The court may only reverse if the evidence is such that fair-minded jurors could only find the defendant not guilty. Id.

¶ 29. According to the above standard of review, this Court looks at the evidence in the light most favorable to the verdict. The evidence supports a finding that Chambers committed the crime of selling cocaine within fifteen hundred feet of a church. Chambers was identified by the undercover officer as one of the persons that sold the cocaine. There is a videotape of the transaction. Two law enforcement officers testified that the drug transaction had occurred within fifteen hundred feet of a church. One officer testified that he measured the distance from the church with the odometer on his car and the other officer said he measured it with an instrument designed for that purpose. This is sufficient evidence to support the jury’s verdict.

¶30. 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, 81 (¶ 14) (Miss.2001) (quoting Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998)). Considering all of the evidence in the record and giving the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence, the jury’s finding that Chambers was guilty of selling cocaine within fifteen hundred feet of a church does not create an unconscionable injustice. Therefore, this issue is without merit.

¶ 31. THE JUDGMENT OF THE WAYNE COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF COCAINE WITHIN 1500 FEET OF A CHURCH AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $5,000 IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO WAYNE COUNTY.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, MYERS AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J.

IRVING, J.,

Concurring in Part, Dissenting in Part:

¶ 32. I agree with the court’s resolution of issues two and three. However, I disagree with its resolution of issue one. Therefore, I dissent from that portion of the majority opinion which finds that Bat-son was not violated when the State struck prospective African American jurors who had relatives that were convicted felons but did not strike prospective Caucasian jurors who also had relatives that were convicted felons. I believe that the reasons given by the State for the disparate treatment was clearly pretextual and that the trial court abused its discretion in allowing the State to strike the African American jurors while keeping Caucasian jurors who were similarly situated. Therefore, I respectfully dissent on this issue.

¶ 33. The venire was composed of four African Americans. The State struck all of them. Juror number three was struck because defense counsel had represented her daughter a year earlier. Jurors numbers six, sixteen, and twenty-one allegedly were struck because they had either a Mend or family member who was either a convicted felon or had charges pending, yet the State did not strike jurors numbers twenty, twenty-five and twenty-seven, all Caucasians, who also had a friend or family member that had been convicted of a felon. In explaining why he did not strike one of the Caucasian jurors, juror number twenty, the prosecutor explained:

Judge, I did allow 20 on there. The reason I allowed 20 on there is because again — obviously, the record doesn’t reflect it, but I don’t live in Waynesboro, I live in Meridian. And I rely to a large extent on the narcotics officers and law enforcement to tell me about what they know about individual people. And I was told that Mr. Trigg would be a good juror for us in spite of his relative’s problems.

¶ 34. Earlier in the voir dire, in response to a question as to whether anyone on the venire panel had been convicted of a felony in the past or had a close friend or family member who had been convicted, the following exchanged occurred:

(By the prosecutor) Raise your cards and I will get to you one by one. Okay. Juror number 20, Mr. Trigg. Was that here in Waynesboro?
A. Yes.
Q. About how long ago?
A. Two and a half years.
Q. Do you remember the kind of crime?
A. I do. I would rather not say.
Q. Okay. Was it a drug crime?
A. No.
Q. It was some other kind of crime?
A. Yes.
Q. Do you feel that person was treated unfairly in any way by law enforcement or the prosecutors?
A. No.
Q. Do you have any hard feelings about it or feel it would affect you because our office prosecuted that person?
A. No.

¶ 35. Jurors numbers twenty-one and twenty-four, two African American females responded to the same series of questions as did Juror Trigg. In the case of juror twenty-one, she said that the friend or family member had been convicted of a third offense of DUI. Juror twenty-four said that the friend or family member had been convicted of a burglary. Both jurors testified as did Juror Trigg that they did not think the relative or friend had been treated unfairly by the prosecution, that they harbored no hard feelings toward the prosecution, and that they would not be affected by the fact that their relative or friend had been prosecuted.

¶ 36. In addition to keeping Juror Trigg, a Caucasian male, the State also kept jurors numbers twenty-five and twenty-seven, both Caucasian females. In the ease of juror number twenty-five, the friend or family member had been convicted of burglary, but in the case of juror number twenty-seven, the friend or family member had been convicted of a drug crime. Jurors numbers twenty-five and twenty-seven served as alternates.

¶ 37. It is true, as the majority points out, that Chambers did not object to jurors numbers twenty-five and twenty-seven and that neither of these jurors actually served on the jury. However, that observation misses the point. The importance of these jurors lies not in the fact that no objection was made to their serving nor in the fact that they did not serve, but in the fact that the State accepted them but rejected African Americans who were similarly situated. Perhaps, the defense wanted these jurors as well. That the defense also may have wanted these jurors and therefore did not object to the State’s keeping them did not vitiate the fact that the State was accepting Caucasian jurors who were in the same posture as the African American jurors that it was rejecting. This demonstrated that the State’s strikes were indeed pretextual. Moreover, when these two jurors were accepted, the trial court had already ruled earlier that a prima facie case had been established that the State was using its peremptory challenges in violation of Batson.

¶ 38. The majority also observes that neither of the Caucasian alternates had family members who had pending charges or were presently involved in the drug business. The inference here is that all the African American jurors who were struck had family members with pending drug charges or were presently involved in the drug business. The record does not support this inference. First, there were only two African American jurors, jurors numbers six .and sixteen, who allegedly had a friend or family member with pending drug charges. Jurors numbers twenty-one and twenty-four were in the exact same posture as were jurors numbers twenty, twenty-five, and twenty-seven.

¶ 39. To find that the State’s peremptory strikes of jurors numbers twenty-one and twenty-four were not pretextual is to find that it is acceptable to discriminate on the basis of race between two sets of jurors, one African American and the other Caucasian, as long as law enforcement vouches for the fairness of the Caucasian set. I do not believe Batson permits such result. Therefore, I respectfully dissent.

KING, P.J., JOINS THIS SEPARATE WRITTEN OPINION.