author: CHANDLER, J.,

text:
    Harvey Lee WINTERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-01779-COA.
    Court of Appeals of Mississippi.
    May 2, 2006.

      Lydia Roberta Blackmon, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Harvey Lee Winters was found guilty of murder on May 17, 2003, in the Holmes County Circuit Court and was sentenced to life imprisonment. Winters now appeals.

I. WHETHER WINTER’S CONSTITUTIONAL RIGHTS WERE VIOLATED BECAUSE HE WAS DENIED AN INITIAL APPEARANCE BEFORE A MAGISTRATE

II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT JURY INSTRUCTION D-5 REGARDING CULPABLE NEGLIGENCE

III. WHETHER THE TRIAL COURT ERRED IN ALLOWING A WITNESS TO TESTIFY TO HEARSAY

IV. WHETHER THE EVIDENCE PRESENTED WAS SUFFICIENT TO SUPPORT THE VERDICT AND/OR WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE

V. WHETHER WINTER’S RECEIVED INEFFECTIVE ASSISTANCE FROM COUNSEL

VI. WHETHER WINTERS WAS DENIED A RIGHT TO FAIR TRIAL

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On October 27, 2001, several people were socializing at a night club in Holmes County including Winters, Junior Williams and Gregory Veasley, who had been dating William’s sister. An altercation ensued and Veasley was shot. Veasley was taken to a hospital in Lexington where he later died. At approximately 4:00 a.m., the morning of the shooting, Officer Sam Chambers of the Holmes County Sheriffs Department informed Winters of his rights and interviewed him. Two days later, Officer Chambers again advised Winters of his rights and talked with him again. Winters states that he pulled his gun during the fight and pointed the gun towards Veasley. Winters claimed that someone hit his arm and the gun went off and shot Veasley in the chest.

¶ 4. On January 9, 2002, Winters was indicted by a grand jury in Holmes County for the death of Veasley. Winters was tried for the crime on May 16 and 17, 2003. At trial, Williams testified that he did not observe Veasley with a gun. Williams testified that the only person he saw with a pistol was Winters and he heard Winters click the pistol. Dr. Timothy Hayne testified that Veasley died of a close, near contact gunshot wound to the chest.

LAW AND ANALYSIS

I. WHETHER WINTER’S CONSTITUTIONAL RIGHTS WERE VIOLATED BECAUSE HE WAS DENIED AN INITIAL APPEARANCE BEFORE A MAGISTRATE

¶ 5. Winters contends that his rights were violated because he was not brought in for an initial appearance before a judicial officer within forty-eight hours as required by the Uniform Rules of Circuit and County Court Rule 6.03. However, Winters did not raise this issue before the trial court. The law is clear that a trial court will not be put in error on a matter not presented for a decision. Moawad v. State, 531 So.2d 632, 634 (Miss.1988). Therefore, this issue is procedurally barred.

II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT JURY INSTRUCTION D-5 REGARDING CULPABLE NEGLIGENCE

¶ 6. Winters contends that the trial court erred in refusing to grant jury instruction D-5. The instruction stated “[cjulpable negligence is defined as the omission to do something which a reasonable, prudent person would do, or the doing of something which a reasonable, prudent person would not do, under the circumstances surrounding the particular case. Culpable negligence must be ascertained from the facts of each case.” Winters contends that the exclusion of this instruction was harmful to the defense because culpable negligence was not explained to the jury.

¶ 7. The State claims that the record is unclear as to whether or not the instruction was given and, therefore, this Court cannot assume an error from an “opaque record.” The State contends that there is no mark on jury instruction number 5 to indicate whether or not the court granted the instruction. The State claims that the instruction is in sequence with the other instructions which were granted by the court, not with those instructions that were refused or withdrawn. Additionally, the State claims that instruction D-5 was renumbered to exclude the notations of “S” and “D,” which indicates the party who submitted the instruction, and, therefore, is another indication that the instruction was given.

¶ 8. On appeal, Winters bears the burden of producing evidence to support his claims. Without a copy of the record to show that this instruction was refused and with indications to the contrary, this Court cannot assume that the court refused to give the jury instruction. Therefore, we cannot find that the court erred in refusing to grant the jury instruction.

III. WHETHER THE TRIAL COURT ERRED IN ALLOWING A WITNESS TO TESTIFY TO HEARSAY

¶ 9. Winters contends that his constitutional rights were violated because the court admitted hearsay testimony. At trial, Mary Kirkwood, the owner of the nightclub, was called to testify. On cross-examination, the State questioned Kirkwood on the events immediately after the shooting as follows:

Q: In the presence of Junior Williams, who was still inside the place after the shooting took place, didn’t you tell Harvey Lee Winters ‘you shot that boy with a gun?’
A: No. When Joyce hollered out, said, “Harvey Lee shot my nephew,” that’s when I went back in the place and told. I said, “Harvey Lee, they’re out here trying to claim that you shot Gregory.” And then he said, “I ain’t shot nobody. How can I shoot somebody?” And he went inside the place. I said, “Thank you.”
Q: You deny making that statement to Junior Williams that—
A: I didn’t make no statement to Junior Williams.

¶ 10. Thereafter, the state called Junior Williams to testify as a rebuttal witness. The district attorney asked Williams what Kirkwood said to Winters when they reentered the club. Williams responded that Kirkwood told Winters, “Harvey Lee, you shot out there and you shot that boy.” Counsel for Winters objected to the testimony. The district attorney countered that the testimony was to impeach Kirk-wood. The court overruled the objection.

¶ 11. Winters contends that the statement was inadmissible hearsay. The State contends that the testimony was offered to impeach Kirkwood and was not offered to prove the truth of the matter asserted. Mississippi Rules of Evidence 613 allows the impeachment of witnesses with their prior inconsistent statements. Everett v. State, 835 So.2d 118, 120(7) (Miss.Ct.App.2003) (holding that a party may impeach a witness by calling other witnesses who will introduce facts discrediting the pervious witness’s testimony).

¶ 12. On cross-examination, Kirkwood was given the opportunity to explain or deny the statement and counsel for Winters was afforded the opportunity to further question Kirkwood on redirect. Winters contends that “the State was allowed to use an alleged prior inconsistent statement of Mary Kirkwood under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible as a device to avoid the hearsay rule.” But there is nothing to suggest that the State did anything improper in its questioning of the witnesses.

¶ 13. This court has held “that unsworn prior inconsistent statements may be used to impeach a witness’s credibility regarding his testimony.” Moffett v. State, 456 So.2d 714, 719 (Miss.1984). This Court will not reverse the lower court ruling on the admissibility of evidence absent an abuse of discretion. Stromas v. State, 618 So.2d 116, 119 (Miss.1993). “The trial court is granted substantial leeway in controlling the admission of evidence.” Moran v. State, 822 So.2d 1074, 1077(8) (Miss.Ct.App.2002). “The discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence.” Ivy v. State, 641 So.2d 15, 18 (Miss.1994). Unless the trial court’s “discretion is so abused as to be prejudicial to the accused, this Court will not disturb the trial court’s ruling on appeal.” Hansen v. State, 592 So.2d 114, 132 (Miss. 1991). Therefore, this issue lacks merit.

IV. WHETHER THE EVIDENCE PRESENTED WAS SUFFICIENT TO SUPPORT THE VERDICT AND/OR WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 14. Winters contends that the trial court erred in refusing to grant a judgment notwithstanding the verdict or a new trial because the evidence was insufficient to support the verdict. Winters claims that there was not enough evidence to find that Winters shot Veasley or, in the alternative, that Winters shot Veasley with deliberate design or intent to kill Veasley.

¶ 15. The applicable standard of review for testing the legal sufficiency of the evidence is that “the court must review the evidence in the light most favorable to the State, accept as true all the evidence supporting the guilty verdict, and give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). The court will reverse and order a new trial 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.” Dilworth v. State, 909 So.2d 731, 737(21) (Miss.2005).

¶ 16. Winters claims there was not enough evidence because there were inconsistencies or discrepancies in the testimony of several witnesses. However, the jury has the discretion whether to accept or reject testimony by a witness and the jury may give consideration to any or all inferences that result from the testimony. Mangum v. State, 762 So.2d 337, 342(12) (Miss.2000). Therefore, regardless of inconsistencies in testimony, the jury has the discretion to determine which testimony to believe. This Court cannot find that a reasonable jury could not find Winter’s guilty merely because of inconsistent testimony. This issue is without merit.

V. WHETHER WINTER’S RECEIVED INEFFECTIVE ASSISTANCE FROM COUNSEL

¶ 17. Winters contends that his counsel was ineffective because he failed to file critical motions, failed to subject the State’s case to a meaningful adversarial setting, failed to investigate all of the information relating to his innocence and failed to establish or preserve the record. To pursue a successful claim of ineffective assistance of counsel, the two-part test from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) applies. Winters must show that his counsel’s performance was so deficient as to constitute prejudice, and that but for the counsel’s errors the outcome in the trial court would have been different. Stevenson v. State, 798 So.2d 599, 601-02 (Miss.Ct.App.2001). “Additionally, there is a strong but rebuttable presumption that an attorney’s performance falls within a wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic.” Stevenson, 798 So.2d at 602(6) (citing Vielee v. State, 653 So.2d 920, 922 (Miss.1995)).

¶ 18. Winters claims that his trial attorney failed to submit critical motions because he did not file a motion to dismiss for Winters’ failure to receive a timely initial appearance and he did not file a motion to suppress statements Winters made to Holmes County officers. Winters contends that his trial counsel did not pursue potentially helpful witnesses and did not further investigate the facts of the case. Winters claims that his attorney failed to thoroughly question witnesses and failed to object to statements to establish or preserve the record.

¶ 19. Although Winters alleges his trial counsel was deficient, Winters has failed to show that his counsel’s performance was so deficient as to constitute prejudice, and that but for the counsel’s errors the outcome in the trial court would have been different. Id. at 601-02(5). Additionally, this Court must consider that there is a presumption that the decisions made by trial counsel are strategic. Id. at 602(6) (citing Vielee, 653 So.2d at 922). Regardless of whether trial counsel’s performance was inadequate, Winters has not shown that the outcome of the trial would have been different but for trial counsel’s deficient performance.

VI. WHETHER WINTERS WAS DENIED A RIGHT TO FAIR TRIAL

¶ 20. Winters contends that he was denied the right to a fair trial for the errors discussed above. This issue is without merit because this Court did not find errors in the issues discussed above.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Roger L. TUTOR, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00495-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.

      William Preston Knight, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Roger Tutor was convicted of murder by a Pontotoc County jury. Thereafter, the Pontotoc County Circuit Court sentenced Tutor to serve a sentence of life in the custody of the Mississippi Department of Corrections. Aggrieved, Tutor appeals and asserts that the court erred in finding him competent to stand trial.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On November 21, 2002, Tutor shot and killed his father after having an argument with him at the family farm in Ponto-toc County. After his arrest but prior to trial, Tutor claimed that he was incompetent to stand trial. On April 17, 2003, the court ordered a psychiatric examination of Tutor by the staff at the Mississippi State Hospital at Whitfield. On January 27, 2004, a report was sent to the court indicating that a majority of the examiners found that Tutor was incompetent to stand trial. Thereafter, on April 13, 2004, a competency hearing was held where the court found that Tutor was incompetent to stand trial. Tutor was then committed to the hospital at Whitfield.

¶ 4. On June 16, 2004, a new report was sent to the court indicating that the staff at Whitfield, after having observed Tutor for three months, believed that Tutor was, in fact, competent to stand trial. No competency hearing was held, but Tutor stood trial on November 30 through December 2, 2004, at the conclusion of which he was found guilty of murdering his father. Tutor testified in his own defense at trial, indicating that the shooting was either an accident or was done in self-defense. Pri- or to finalizing jury instructions, the court made the following finding of fact on the record, indicating that it found that Tutor was competent to stand trial:

No determination has ever been made by the Court as to [Tutor’s] competency, but it is my understanding that after that report, the last report of the hospital, the Defendant has instructed counsel that any questions of his competency or sanity were not [to] be raised in the course — as a defense in the course of the handling of this case.... So that the matter will not be unanswered, the Court is of the opinion that the Defendant has been restored to his competency and has participated in the trial. As a matter of fact, he testified during the course of this trial in a cogent manner and from all appearances seems to be thoroughly capable of assisting in his defense. He testified, so the Court finds that there is no question of his competency. He is in fact competent to proceed and has been through the course of this trial.

¶ 5. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

Standard of Review

¶ 6. “The standard for competence to stand trial is whether the defendant has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ and ‘has a rational as well as factual understanding of the proceedings against him.’ ” Snow v. State, 800 So.2d 472, 489(¶ 61) (Miss.2001) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). In order to stand trial, a defendant must be (1) able to understand the proceedings against him, (2) able to communicate rationally with his attorney regarding the proceedings, (3) “able to recall relevant facts,” (4) able to testify in his own defense if he so chooses, and (6) able to do all of the above in a manner “commensurate with the severity of the case.” Id. at 489(¶ 59) (quoting Howard v. State, 701 So.2d 274, 279 (Miss.1997)). We will not overturn a trial court’s determination of competency unless “the finding was manifestly against the overwhelming weight of the evidence.” Id. (quoting Emanuel v. State, 412 So.2d 1187, 1189 (Miss.1982)).

Competency Finding

¶ 7. Rule 9.06 of the Uniform Circuit and County Court Rules governs competency determinations. According to Rule 9.06, if the court “has reasonable ground to believe that the defendant is incompetent” the court “shall order” the defendant to undergo a mental examination. After the ordered examination, the court “shall conduct a hearing to determine if the defendant is competent to stand trial.” These procedures were clearly followed in this case. Upon motion by the defense, the court ordered that Tutor be given a mental examination, which ultimately indicated that Tutor was incompetent to stand trial. Thereafter, the court held a competency hearing where it determined that Tutor was, in fact, incompetent to stand trial. Tutor was then committed to a state hospital.

¶8. However, Rule 9.06 also addresses the proper procedures that should be followed when a defendant who has been found incompetent to stand trial is later found to be competent:

If at any time during such commitment, the proper official at the Mississippi State Hospital or other appropriate mental health facility shall consider that the defendant is competent to stand trial, such official shall promptly notify the court of that effect in writing, and place the defendant in the custody of the sheriff. The court shall then proceed to conduct a hearing on the competency of the defendant to stand trial.

(emphasis added). These procedures were not followed by the court below, since no competency hearing was held by the court before proceeding to trial. Although the court should have followed the proper procedures and held a second competency hearing, we find that the failure to do so in this case was harmless error.

¶ 9. The doctors caring for Tutor found that he was competent to stand trial, and sent a letter to that effect to the court. The letter from the doctors who observed Tutor during his commitment specifically detailed their findings as to Tutor’s competency to stand trial:

We are unanimous in our opinion that Mr. Tutor has the sufficient present ability to consult with an attorney with a reasonable degree of rational understanding in the preparation of his defense, and that he has a rational as well as factual understanding of the nature and object of the legal proceedings against him.
We also are unanimous in our opinion that Mr. Tutor has presently, and had at the time of his arrest, the capacity to understand and knowingly, intelligently, and voluntarily to waiver [sic] or assert his constitutional rights.
Finally, we are unanimous in our opinion that on or about 21 November 2002, Mr. Tutor would have known the nature, quality, and wrongfulness of his alleged acts and would have known at that time that committing murder would be against the law.
Mr. Tutor presently is not experiencing any signs or symptoms of a major mental illness. Although he endorses numerous concerns that sound delusional, these are not generally consistent with actual delusions. Rather, it is our opinion that Mr. Tutor fabricates or grossly exaggerates symptoms of psychosis, such as his stated belief that the alleged victim, his father, had been replaced by an A1 Qaida agent. Even if these claims represent actual delusions, it is ora* opinion that he would have known that killing anyone, regardless of who they were, would have been wrong.
Mr. Tutor has not been treated with any psychiatric medications during this admission. Although he has reported delusional-sounding paranoid material, such as his report that he is, ‘the President’s field advisor ... to find the al Qaida pockets,’ this was felt both to be a product of his personality disorder, rather than a major mental disorder (and so not likely to respond to treatment with psychiatric medications) and to be fabricated or grossly exaggerated because of his legal situation, making it much more difficult for us to assess what — if any— benefit he might receive from such treatment.
Mr. Tutor appears to be of at least average intelligence and should have no difficulty communicating with his attorney in order to prepare for his legal proceedings.

(emphasis added). The letter clearly indicated that the doctors found that Tutor understood the proceedings against him and was capable of assisting his attorney in his defense. Tutor’s later testimony on the stand indicated that he was capable of taking the stand in his own defense and could recall relevant facts as needed while testifying. The court made a finding on the record indicating that it found that Tutor was competent, based both on the letter from his doctors and on the court’s observation of Tutor throughout the trial, including during his testimony on the stand. There was sufficient evidence, from the letter and from Tutor’s testimony, from which the court could find that Tutor was competent to stand trial.

¶ 10. We find nothing in the record to indicate that Tutor was not able to consult with his attorney and participate in his defense with “a reasonable degree of rational understanding.” We also note that Tutor has presented no new evidence contradicting the finding of the court and his doctors that he was competent to stand trial.

¶ 11. Finally, we note that Tutor did not object to the lack of a hearing at the trial or request one on his own, nor did he raise the issue of the competency hearing in his motion for a new trial. In fact, neither Tutor nor his attorney ever questioned the court’s determination that Tutor was, and had been, competent to stand trial and testify, despite the fact that the judge discussed his finding in front of them. Nothing indicates, and Tutor does not claim, that Tutor or his attorney were prevented from objecting to the court’s determination of Tutor’s competency without holding a competency hearing. Therefore, we note that this issue is also procedurally barred from consideration: “A trial judge cannot be put in error on a matter which was not presented to him for decision.” Reynolds v. State, 913 So.2d 290, 300(¶ 37) (Miss.2005) (quoting Pruett v. Thigpen, 665 F.Supp. 1254, 1262 (N.D.Miss.1986)).

¶ 12. Tutor points out that he received no treatment or medication while committed to the hospital after the first competency hearing. Therefore, he argues, he could not have suddenly become competent, because he had not received any treatment that would change his status. We find that this argument is without merit. The letter sent to inform the court that the doctors believed that Tutor was competent to stand trial made clear that this determination was made after having further observed Tutor’s behavior. The doctors specifically found that he “fabricated or grossly exaggerated” some of his mental problems “because of his legal situation.” In other words, the doctors observed Tutor further and came to a different determination as to his competency. The report does not allege that Tutor’s condition had changed or improved, but merely stated that the doctors had come to a different conclusion regarding his competency to stand trial. Furthermore, Tutor’s condition could have improved or changed after he was committed, even if he did not receive treatment of any kind. In other words, his mental condition could have improved on its own to the point where he was competent to stand trial without receiving any treatment whatsoever. No evidence has been produced by Tutor indicating that he could not have improved without treatment. Tutor’s argument to the contrary is without merit.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF PONTOTOC COUNTY OF CONVICTION OF MURDER AND SENTENCE TO SERVE LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PONTOTOC COUNTY.

LEE AND MYERS P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. KING, C.J., CONCURS IN-RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

        . The report clearly indicated that the incompetency determination was not unanimous.


author: BARNES, J.,

text:
    James Buster SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CA-01194-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.
    James D. Mino, attorney for appellant.
    Office of the Attorney General, by John R. Henry, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. James “Buster” Smith appeals from the judgment of the Circuit Court of Chickasaw County dismissing his motion for post-conviction relief for lack of jurisdiction. We find that the circuit court correctly applied the plain language of Mississippi Code Annotated Section 99-39-5(2) in dismissing Smith’s motion. Accordingly, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Smith was indicted on September 1, 1999, on one count of manufacture of crystal methamphetamine, and one count of possession of crystal methamphetamine with intent to distribute. Also named under both counts in the indictment was Lisa Gray. Smith pled guilty to both counts on December 7, 1999, and Gray also pled guilty. A sentencing hearing was held for Smith on June 12, 2000, at the conclusion of which he was sentenced to a term of fifteen years for each count of the indictment, with five years suspended, ten to serve, and the sentences to run concurrently. Gray was sentenced separately on March 27, 2000, to a term of fifteen years, with seven suspended and eight to serve, and was placed on the house arrest program.

¶ 3. On February 11, 2004, Smith filed the instant motion for post-conviction relief. In his motion, Smith alleged that his co-defendant Gray had produced new evidence and had been re-sentenced to the time she had already served. Smith therefore argued that there was a disparity in sentencing, and asked the court to reduce his sentence in the same manner that Gray’s had been reduced. The circuit court granted an evidentiary hearing.

¶ 4. At the hearing, the circuit court addressed the issue of the three-year statute of limitations for post-conviction motions, which had already expired at the time Smith filed his motion. Smith testified at the hearing, but introduced no new evidence regarding his conviction. Smith submitted to the court a copy of an order which resentenced Gray to the time she had already served. The copy of Gray’s order stated that Gray had been resen-tenced because of the introduction of “new evidence,” although it was not specific as to what this new evidence was.

¶ 5. At the conclusion of the hearing, the circuit judge denied Smith’s motion on the ground that it was barred by the statute of limitations. Aggrieved, Smith appeals arguing that (1) the statute of limitations found in Mississippi Code Annotated Section 99-39-5(2) is tolled when a co-defendant is resentenced and (2) there is a disparity between his sentence and the reduced sentence which was later given to Gray. We find that the trial court properly denied Smith’s motion as being procedurally barred by the statute of limitations; Smith introduced no new evidence which would remove his case from the statutory bar.

STANDARD OF REVIEW

¶ 6. Our standard of review on motions for post-conviction relief in which an evidentiary hearing was held is the clearly erroneous standard. Johns v. State, 926 So.2d 188, 194(¶29) (Miss.2006) (citing Reynolds v. State, 521 So.2d 914, 918 (Miss.1988)). However, on questions of law, our standard of review is de novo. Pace v. State, 770 So.2d 1052, 1053(¶4) (Miss.Ct.App.2000).

ISSUES AND ANALYSIS

I. Whether the three-year statute of limitations on motions for post-conviction relief is tolled by the resen-tencing of a co-defendant.

¶ 7. Smith argues that the statute of limitations should be tolled from the date that his co-defendant was resen-tenced. In support of his argument, Smith analogizes civil cases where statutes of limitation only begin to run from the date that the cause of action accrues. Thus, Smith states that the “cause of action,” disparate sentencing, “accrued” on the date that Gray was resentenced. Smith also argues that the statute should be tolled under the precedent of Puckett v. State, 834 So.2d 676, 678(¶ 11) (Miss.2000), which held that “when a party is prohibited from exercising his right to proceed by circumstances, which are clearly beyond his control and rise to such a dimension as to implicate due process and fundamental fairness, the Court may and should toll the limitations for the period of the impairment.” Thus, Smith argues that, because his sentence was disparate from that of Gray following her resentencing, this disparate sentence violated his due process rights, and was a constitutional issue which justified tolling of the statute.

¶ 8. We reject Smith’s arguments. Mississippi Code Annotated Section 99-39-5(2) provides, in relevant part:

A motion for relief under this article shall be made within three (3) years after the time in which the prisoner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction. Excepted from this three-year statute of limitations are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.

The statute is plain and unambiguous. It specifically provides that the three year time period begins to run from one of three dates: the date of dismissal of a prisoner’s direct appeal, the date of a judgment of conviction or sentence has expired, or, in the case of a guilty plea, the date of the judgment of conviction. In the instant case, Smith pled guilty. Thus, the statute began to run from the date of the judgment of conviction, which was entered at Smith’s sentencing hearing on June 12, 2000. When Smith filed his motion for post-conviction relief on February 11, 2004, it was time-barred, and the trial judge properly dismissed it on that ground.

¶ 9. Smith offers no Mississippi cases which support his contention that the statute should be tolled from the date that his co-defendant was resentenced. This being the case, we decline to carve out the exception he seeks. The only exceptions to the date on which the three-year period begins are provided in the statute:

[T]hose cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.

In this case, Smith has not cited an intervening decision which would adversely affect the outcome of his conviction. Nor has he introduced any new evidence not reasonably discoverable at the time of trial which would have impacted his plea or conviction. All of Smith’s testimony related to evidence which was available at the time of his guilty plea. Because he introduced no new evidence, such an argument is improper on a motion for post-conviction relief. Smith alludes to new evidence which was introduced at Gray’s evidentiary hearing, and which apparently was the basis for Gray’s sentence being reduced, but he does not specifically state what this evidence was. Rather, Smith’s entire testimony at the evidentiary hearing appears to be nothing more than a denial of guilt.

¶ 10. Finally, we reject Smith’s argument that the statute should be tolled pursuant to Puckett v. State because his motion involves the constitutional ground of due process. The court in Puckett was faced with a prisoner who had been convicted of capital murder and sentenced to death. Puckett, 884 So.2d at 676(¶ 2). Due to circumstances beyond his control, the prisoner had not been able to file his motion for post-conviction relief within the one-year statute of limitation in section 99-39-5(2). Id. at 679(¶ 14). The Mississippi Supreme Court, commenting on the federal rule, stated that the doctrine of equitable tolling of the statute of limitations “should only be applied in rare and exceptional circumstances.” Id. at (¶ 13). “The doctrine may be applied when a movant filed in untimely fashion due to extraordinary circumstances which are both beyond his control and unavoidable even in the exercise of due diligence.” Id. (citing Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999)). The court also held that “[wjhile other jurisdictions have applied the doctrine of equitable tolling to non-capital cases, we do not do so today; the fact that Puckett is under a sentence of death and subject to a shortened one year statute of limitations weighs heavily in this decision.” Id. at (¶ 17).

¶ 11. The instant case clearly does not involve a prisoner who has been convicted of a capital crime and sentenced to death. Further, Smith has not shown that he did not file his motion within the applicable statutory time period due to extraordinary circumstances that were beyond his control. In fact, Smith had approximately nine months in which to file his motion between the time that Gray was resen-tenced and the time when the three-year statutory period expired. For these reasons, Puckett is simply inapplicable, and we decline to extend that narrow ruling to the instant case.

II. Whether Smith was sentenced disparately from his co-defendant.

¶ 12. Smith argues that the reduced sentence given to Gray was disparate when compared to the original sentence given to him. He therefore argues that this court should require the trial court to review “the proportionality of his sentence.” In support of his argument, Smith cites McGilvery v. State, 497 So.2d 67, 69 (Miss.1986).

¶ 13. We find McGilvery to be inapplicable to the case at hand. In McGilvery, the court was concerned that a defendant who had insisted upon a jury trial was sentenced to a longer prison sentence than a co-defendant who had pled guilty. McGilvery, 497 So.2d at 69. The court noted that, if the trial court imposed a harsher sentence on the defendant who had insisted on the jury trial as punishment for not agreeing to a plea, then the harsher sentence would be a disincentive to the defendant’s demanding a jury trial, and this would impermissibly infringe on his Sixth Amendment right to trial by jury. Id. Although the court in McGilvery did not overturn the sentence of the defendant who had insisted on a jury trial, it did remand with instructions that the trial court “state for the record appropriate reasons for the disparity” in sentencing. Id.

¶ 14. In the instant case, however, both defendants pled guilty. At no point did Smith insist upon a jury trial. In this respect, the instant case is analogous to Leverette v. State, 812 So.2d 241, 245(¶ 17) (Miss.Ct.App.2002), which involved a defendant who asserted “error simply because his sentence [was] longer than his co-indictee’s sentence.” In Leverette, both defendants had pled guilty. Id. We noted that “[i]f a defendant who insists on a trial receives a harsher sentence than does a co-defendant who pled guilty, that can raise significant Sixth Amendment issues regarding the unfettered right to a jury trial.” Id. (citing Lawson v. State, 748 So.2d 96, 99-100 (Miss.1999); McGilvery v. State, 540 So.2d 41, 42 (Miss.1989)). We found, however, that those Sixth Amendment concerns were not present because both of the defendants had pled guilty. Id. Likewise, the sentencing in this case raises no Sixth Amendment issues because Smith never asserted his right to a jury trial. This argument is without merit.

¶ 15. Accordingly, we affirm the judgment of the circuit court dismissing Smith’s motion.

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

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

      . At the evidentiary hearing, Smith's attorney argued that the resentencing of his co-defendant was an "intervening decision.” This argument has not been advanced on appeal.


author: MYERS, P.J.,

text:
    Donnell JUDGE, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00975-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.

      Donnell Judge, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. On February 25, 2005, Donnell Judge filed a motion for post-conviction relief to clarify his sentence in the Circuit Court of Warren County. The circuit court denied the motion. Aggrieved by the circuit court’s ruling, Judge appeals. Finding no error, we affirm the circuit court’s ruling.

FACTS

¶ 2. Judge was caught selling cocaine while he was on post-release supervision for a conviction of a previous crime. In March 2001, he was sentenced to serve five years in the custody of the Mississippi Department of Corrections for the cocaine conviction. His post-release supervision was rescinded; therefore, he began to serve the remaining seven years for the previous crime. The sentences were to run consecutively.

DISCUSSION

¶ 3. Post-conviction collateral relief is “to provide prisoners with a procedure, limited in nature, to review those objections, defenses, claims, questions, issues, or errors which in practical reality could not have been or should not have been raised at trial or on direct appeal.” Miss. Code Ann. Section 99-39-3(2) (Rev.2000). Post-conviction relief is not the same or a substitute for direct appeal. See Cole v. State, 666 So.2d 767, 772-73 (Miss.1995).

STANDARD OF REVIEW

¶4. This Court will not disturb the trial court’s factual findings, when reviewing a decision to deny a petition for post-conviction relief, unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). However, the applicable standard of review is de novo where questions of law are raised. Id. at 598(¶ 6).

¶ 5. “The Mississippi Uniform Post-Conviction Collateral Relief Act provides the exclusive and uniform procedure for the collateral review of convictions and sentences in the state.” Walker v. State, 555 So.2d 738, 741 (Miss.1990). Since Judge’s motion collaterally attacks his sentence, it falls under the Uniform Post-Conviction Relief Act. According to Mississippi Code Annotated Section 99-39-5 (Rev.2000), there is a three-year statute of limitations for a prisoner to file a petition for post-conviction relief. Wright v. State, 821 So.2d 141(¶3) (Miss.Ct.App.2000). Mississippi Code Annotated Section 99-39-5(2) (Supp.2005) sets forth certain exceptions which if the prisoner can demonstrate will override the three year limitation, those exceptions include: an intervening decision by either the United States Supreme Court or the Mississippi Supreme Court which would have actually adversely affected the outcome of the prisoner’s conviction or sentence; prisoner’s possession of evidence which was not reasonably discoverable at the time of the trial but had such evidence been introduced at trial it would have caused a different result; and prisoner claims that his sentence has expired or his probation, parole or conditional release have been unlawfully revoked. Judge’s claim does not fall within these exceptions. Judge’s motion was filed well beyond the three year limitation prescribed in Mississippi Code Annotated Section 99-39-5 and we find that none of the exceptions apply; therefore, we find no error in the trial court’s ruling.

¶ 6. Furthermore, we would point out that according to Mississippi Code Annotated Section 99-19-21 (Rev.2000), when a convicted felon is sentenced for a crime he committed while he was on supervised release for committing a previous crime, the two sentences cannot run concurrently, they must run consecutively.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: ROBERTS, J.,

text:
    Todd D. DAVIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00604-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.

      Antwayn Lavell Patrick, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. On February 24, 2005, a jury sitting before the Holmes County Circuit Court found Todd Davis guilty of three counts of sexual battery under Section 97-3-95(2) of the Mississippi Code. Post-trial, Davis filed an unsuccessful motion for judgment notwithstanding the verdict or for a new trial. Aggrieved, Davis appeals and raises four issues, listed verbatim:

I. WHETHER THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?
II. WHETHER THE DEFENSE COUNSEL REPRESENTATION WAS SO INADEQUATE AND INEFFECTIVE WHEN HE FAILED TO CROSS-EXAMINE THE VICTIM, SUBPOENA RECORDS WHICH DETERMINED THAT THE VICTIM WAS NOT MOLESTED AND SUBPOENA THE WITNESS WHICH WOULD HAVE SHOWED THE MOTHER WHO REPORTED THE MOLESTATION BIAS TOWARDS THE APPELLANT?
III. WETHER THE STATE CLOSING ARGUMENTS WERE SO PREJUDICED WHEN HE SAID THAT THIS CASE IS ALL ABOUT HOMOSEXUALITY AND EVEN O.J. ATTEMPTED TO LOOK FOR THE PURPORTED REAL KILLER?
IV.THE CUMULATIVE ERRORS IN THIS CASE DENIED TODD DAVIS A RIGHT TO A FAIR TRIAL.

Finding no error in Davis’s convictions, we affirm. However, for inconsistencies in Davis’s sentencing, which we will discuss in detail below, we remand this matter to the circuit court for clarification of Davis’s sentences.

FACTS AND PROCEDURAL HISTORY

¶ 2. Todd Davis and Josha Fields had a four year old son, Jack. Jack lived with Josha during the week and spent weekends with Davis. For approximately three weeks in February, Jack told Josha that his “behind was itching.” Josha assumed that Jack was not cleaning himself properly, as Jack seemed to feel better after Josha bathed him. However, on Wednesday, February 25, 2004, Josha examined Jack and found what to her appeared as indications that Jack had been molested. Josha asked Jack if anyone had been touching him. First, Jack implicated his two-year-old cousin. Josha thought Jack was not being truthful with her so she asked him again. Jack then told his mother that Davis “sucked on my thing like it was a bottle.” Jack also told Josha that Davis “put his fingers in my bootie” and that Davis “stuck his thing in his behind.”

¶ 3. Alarmed, Josha took Jack to see her mother, Sheila Murray. At Josha’s request, Jack told his grandmother exactly what he told Josha. Sheila and Josha took Jack to the emergency room at the Mont-fort Jones Hospital in Kosciusko, Mississippi.

¶ 4. That same day, Glenda Nail, a social worker employed by the Attala County Department of Human Services, received a telephone call from the Montfort Jones emergency room. The hospital requested that a social worker come to the hospital and interview Jack. Nail responded and took Ruth Eden, a fellow social worker, and Jamie Burks, a student intern. Nail and Eden interviewed Jack. Jack told them Davis “stuck his fingers in his boo-tie.” Eden asked Jack if anything else happened. Jack told them that Davis “put his thing in his mouth.” When asked to identify his “thing,” Jack “grabbed his own penis.” Jack told them that Davis “sucked on it like it was a bottle.”

¶ 5. Jack’s allegations notwithstanding, the emergency room physician found no conclusive indications of trauma and no conclusive indications of molestation. Jo-sha was unsatisfied with the emergency room physician’s conclusions. Josha was especially dissatisfied that the emergency room physician did not interview Jack. To that end, Josha sought a second opinion.

¶ 6. Apparently, Josha took Jack to the Attala County Health Department because Dr. Betty Turner testified that, on Thursday, February 26, 2004, the health department contacted her and requested that she examine Jack for possible molestation. Dr. Turner, a pediatrician at the Kosciusko Medical Center, examined Jack and found that the “skin around [Jack’s] rectum was red and irritated and ... [Jack] had several fairly fresh lacerations in the rectum.” According to Dr. Turner, those lacerations were consistent with sexual penetration. Dr. Turner’s opinion was that Jack had been molested or sodomized, but she found no DNA evidence. Jack also indicated that Davis touched him inappropriately.

¶ 7. On April 28, 2004, the Holmes County Grand Jury returned an indictment against Davis and charged him with three counts of sexual battery under Section 97-3-95(2) of the Mississippi Code. An order dated May 26, 2004, reflects that Davis pled not guilty to the charges. Davis was tried on February 24, 2005. Before the prosecution presented any testimony before the jury, the circuit court conducted a hearing to determine whether statements that Jack made to other witnesses would be admissible under M.R.E. 803(25), the “tender years” exception. The circuit court heard testimony from Josha, Sheila Murray, Glenda Nail, and Deputy Sam Chambers. Afterwards, the circuit court held:

The Court, after hearing testimony of the witnesses out of the presence of the jury, finds that, due to the child’s age at a time of the alleged incident, the child’s lack of knowledge of sexual behavior and lack of experience at age four, and the contents of the statements, in that the child described the sexual misconduct that was alleged to have been perpetrated upon him.... This Court, therefore, finds that because of the timing of the statement, the detailed contents of the statement, and the circumstances surrounding the statement, that the child, at the time of this incident, was of tender years, and that the statements allegedly made to the witnesses provide additional reliability and they are therefore admissible pursuant to Rule 803(25) of the Mississippi Rules of Evidence.

¶ 8. The circuit court then considered whether Jack was competent to testify. Jack was five at the time of trial. The circuit court questioned Jack and allowed the prosecution and Davis’s attorney an opportunity to question Jack. Afterwards, the circuit court found that Jack was competent to testify.

¶ 9. The prosecution called Jack as its first witness. The prosecution’s examination proceeded as follows:

Q. [Jack], I just have a couple of questions for you. Okay? Do you know Todd Davis?
A. Yes.
Q. Who is Todd Davis?
A. My daddy.
Q. Okay. Did Todd Davis do something to you?
A. Yes.
Q. Did you tell your mother about that?
A. Yes.
Q. Did you tell her the truth?
A. Yes.

Davis waived cross-examination of Jack.

¶ 10. The prosecution then presented testimony from Josha, Sheila Murray, Dr. Turner, and Glenda Nail. They each testified that, according to Jack, Davis touched Jack inappropriately. Additionally, Dr. Turner testified that she found physical indications that Jack had been molested. However, Dr. Turner found no evidence that specifically pointed to Davis.

¶ 11. Davis took the stand and testified that he did not molest Jack. Davis claimed that, the weekend of February 21-22, Jack spent the majority of that weekend with Davis’s sister, Sherrell Riley. Davis testified that Sherrell had children and that Jack enjoyed playing with them. According to Davis, Jack stayed with Sherrell in Goodman, Mississippi, while he and his girlfriend, Katrina Wright, went to Jackson.

¶ 12. Davis next called his sister, Sher-rell Riley. Sherrell testified that, on Friday, February 20, 2004, Davis took Jack to her house and that Jack stayed with her that entire weekend. Next, Davis called his mother, Katherine Davis. Katherine testified that Davis lived with her, that Sherrell lived next door, and that Jack stayed with Sherrell on Friday, February 21st and Saturday, February 22nd. Davis then called his girlfriend, Katrina Wright. Katrina testified that she was with Davis on Friday, February 20th. According to Katrina, on Friday, she and Davis went out to eat at approximately 6:30 p.m. and returned home around 10:00 p.m. She also testified that, on Saturday, she and Davis left around 7:00 p.m. and drove to Jackson. Katrina stated that she dropped Davis off at his house around midnight. On cross-examination, Katrina testified that she was not with Davis the entire weekend. Davis then called four character witnesses. Those witnesses testified that Davis had a good reputation in the community in which he lived.

¶ 13. As mentioned, the jury found Davis guilty of all three counts of sexual battery. Posttrial, Davis filed unsuccessful motions for JNOV and for a new trial. Aggrieved, Davis appeals. We turn to his allegations.

ANALYSIS

I. WHETHER THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 14. In alleging that the verdict was against the overwhelming weight of the evidence, Davis appeals the circuit court’s decision to overrule his motion for a new trial. “A motion for a new trial seeks to vacate the judgment on grounds related to the weight, not sufficiency, of the evidence.” Verner v. State, 812 So.2d 1147(¶ 6) (Miss.Ct.App.2002). “A motion for a new trial is addressed to the trial court’s sound discretion.” Fleming v. State, 732 So.2d 172(¶ 37) (Miss.1999).

¶ 15. On appeal, we must consider all of the evidence, not just the evidence which supports the State’s case, in the light most favorable to the State. May v. State, 460 So.2d 778, 781 (Miss.1984). Accordingly, “[t]his Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Smith v. State, 868 So.2d 1048(¶ 11) (Miss.Ct.App.2004). Rather, “this Court must consider all the evidence, not just that supporting the case for the prosecution, in the light most consistent with the verdict, and give the State all favorable inferences which may be drawn from that evidence.” Fleming, 732 So.2d at (¶ 38).

¶ 16. Davis raises six points to suggest that the verdict was against the weight of the evidence. First, Davis submits that “[t]he State’s witnesses only testified what the minor child stated to them after the child probably was coached by the mother, Josha Field.” In effect, Davis alleges that Josha fabricated the allegations. Davis raised this allegation at trial, but no evidence suggested that Josha coached Jack.

¶ 17. Second, Davis points out that Jack first implicated his two-year-old cousin as the perpetrator of the physical injuries to his rectum. Though he does not say so, it seems that Davis attacks the credibility of Jack’s allegations. That is, Davis suggests that because Jack implicated his cousin, who obviously could not have molested him, then the allegations were not credible. We are prohibited from weighing credibility on appeal. “Matters regarding the credibility and weight to be accorded the evidence are to be resolved by the jury.” Verner, 812 So.2d at (¶ 7).

¶ 18. Third, Davis notes that the emergency room physician found no indications that Jack had been molested. Davis is correct. The emergency room physician conducted an exam and found the results inconclusive. As such, the emergency room physician could not conclude that the allegations were true and, likewise, could not conclude that the allegations were false. Be that as it may, Dr. Turner testified that she found lacerations to Jack’s rectum consistent with molestation. Accordingly, the jury heard conflicting evidence from two examinations. One examination found inconclusive results, and the other concluded that Jack had been molested. “Where there is conflicting testimony, the jury is the judge of the credibility of the witnesses.” Bessent v. State, 808 So.2d 979(¶ 21) (Miss.Ct.App.2001).

¶ 19. Fourth, Davis states, “there were testimony by the defense witnesses that Josha had much animosity towards Davis.” Davis seems to claim that Josha was a scorned woman and that she coached Jack or otherwise created -the charges against Davis. When Davis testified, he alleged that Josha felt animosity towards him because he would not purchase a vehicle for her. Katrina also suggested that Josha placed a threatening letter on her vehicle. Davis’s allegations amount to an attack on Josha’s credibility. However, those instances never progressed beyond allegations, as Josha testified that she was not angry at Davis based on his refusal to purchase a vehicle for her and that she did not place that letter on Katrina’s vehicle. Again, the jury weighed Josha’s credibility and we are not at liberty to invade that particular consideration, reserved as a province of the jury.

¶ 20. Fifth, Davis points out that Josha testified that “she had gone through this before with [Jack].” Josha made that statement on direct examination during the circuit court’s hearing on whether Jack’s statements would be admissible under the tender years exception to the hearsay rule. In particular, Josha referenced the fact that she was unsatisfied with the emergency room physician’s conclusion. Josha said, “Being as I had went through this before with [Jack], I wasn’t taking his opinion on that.” The prosecutor then asked, “you said you had been through it before about other medical matter [sic] with [Jack]?” Josha answered, “Uh-huh. Him being fondled with.”

¶ 21. It is important to realize that the jury was not in the courtroom during the hearing on the admissibility of Jack’s statements under the tender years exception. During Josha’s actual testimony, Jo-sha did not mention any previous molestation that Jack might have suffered. The jury did not hear that testimony, much less apply it to their analysis of the weight of the evidence. As such, it is not appropriate to consider whether it somehow affects the weight of the evidence.

¶ 22. Finally, Davis submits that Jack did not specifically testify that Davis molested him and that no physical evidence specifically indicated that he molested Jack. Davis is correct. Jack did not specifically implicate Davis during Jack’s brief testimony. Joshua, however, testified that Jack told her that Davis molested him. Sheila Murray also testified that Jack told her Davis molested him. Glenda Nail and Dr. Turner offered similar testimony. Davis does not raise an issue as to whether those multiple instances of hearsay testimony were proper. Accordingly, the jury heard evidence, albeit in the form of hearsay testimony, that Davis molested Jack. Even the testimony of a single uncorroborated witness can sustain a conviction even though there may be more than one witness testifying to the contrary. Verner, 812 So.2d at (¶ 7). As such, we find no reversible error based on the weight of the evidence.

II. WHETHER THE DEFENSE COUNSEL REPRESENTATION WAS SO INADEQUATE AND INEFFECTIVE WHEN HE FAILED TO CROSS-EXAMINE THE VICTIM, SUBPOENA RECORDS WHICH DETERMINED THAT THE VICTIM WAS NOT MOLESTED AND SUBPOENA THE WITNESS WHICH WOULD HAVE SHOWED THE MOTHER WHO REPORTED THE MOLESTATION BIAS TOWARDS THE APPELLANT?

¶ 23. In this issue, Davis claims he received ineffective assistance of counsel because his attorney failed to cross-examine the victim, failed to subpoena records, and failed to subpoena witnesses. When a party raises an ineffective assistance of counsel claim on direct appeal, the proper resolution is to deny relief without prejudice to the defendant’s right to assert the same claim in a post-conviction relief proceeding. Pittman v. State, 836 So.2d 779(¶ 38) (Miss.Ct.App.2002). “We should reach the merits on an ineffective assistance of counsel issue on direct appeal only if ‘(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.’ ” Id. at (¶ 39) (quoting Colenburg v. State, 735 So.2d 1099, 1101 (Miss.Ct.App.1999)). If we do not consider the issue due to the state of the record, assuming we affirm the conviction, Davis may raise his ineffective assistance of counsel claim in post-conviction relief proceeding. Id. The parties have not entered any such stipulation, and the record does not affirmatively show ineffectiveness of constitutional dimensions. Accordingly, Davis may raise his ineffective assistance of counsel claim in a post-conviction relief proceeding.

III. WETHER THE STATE CLOSING ARGUMENTS WERE SO PREJUDICED WHEN HE SAID THAT THIS CASE IS ALL ABOUT HOMOSEXUALITY AND EVEN O.J. ATTEMPTED TO LOOK FOR THE PURPORTED REAL KILLER?

¶ 24. Davis claims that prosecuto-rial misconduct occurred based on two comments during closing arguments. First, Davis complains about the prosecutor’s comment that:

This is a case concerning homosexuality. Okay? This is what it is. Having sex with somebody of the same sex is homosexuality. Why couldn’t he get a male to come up here from the community his age? I mean why didn’t you hear any character witnesses from male persons his age telling you what kind of a good fellow he was? He’s been here his whole life! You know, that’s—-I thought of that, you know.

¶ 25. According to Davis, “These statements were stated to the jury at the beginning of the State closing arguments. To make these statements, one can only make one conclusion. The State wanted to create prejudice an unduly influence the jury. The State flamed the jury by inciting their prejudice against homosexuality.”

¶ 26. Second, Davis complains about the prosecutor’s statement, “You know, heck, even during the O.J. Trial, O.J. was going to try to find the real killer after the trial was over with. Todd Davis wasn’t even concerned about finding the real perpetrator .... ” (emphasis in original). Davis asserts, “The pervasive nature of improper comments, remarks and innuendo of prejudice against Appellant Davis that he could not receive a fair trial. Based on this fact, this cause should be reversed and remanded for a new trial.”

¶ 27. However, Davis did not object to either of these statements. When a defendant fails to contemporaneously object at trial, the issue is procedurally barred on appeal. Brown v. State, 907 So.2d 336(1112) (Miss.2005).

IV. THE CUMULATIVE ERRORS IN THIS CASE DENIED TODD DAVIS A RIGHT TO A FAIR TRIAL.

¶ 28. Davis claims that we should reverse based on the cumulative effect of errors. However, we have found no error, so there can certainly be no cumulative effect.

SENTENCING

¶ 29. The jury found Davis guilty of three counts of sexual battery under Miss.Code Ann. § 97-3-5(2). As such, the jury returned three separate verdicts of guilt against Davis. The circuit court sentenced Davis “to serve ten (10) years in the Mississippi Department of Corrections.” Pursuant to Miss.Code Ann. § 99-7-2(3) (Rev.2000), “When a defendant is convicted of two (2) or more offenses charged in separate counts of an indictment, the court shall impose separate sentences for each such conviction.” (emphasis added).

¶ 30. As it stands, the circuit court could have sentenced Davis to ten years for count one, ten years for count two, and ten years for count three and then set counts two and three to run concurrent to count one or the circuit court could have suspended the sentences in counts two and three. There are a number of ways the circuit court could have computed Davis’s sentence, but no particular method was set forth.

¶ 31. The issue of Davis’s sentencing was not raised on appeal. Generally, Mississippi Rule of Appellate Procedure 28(a)(3) prohibits this Court’s review of any issue not argued on appeal. However, M.R.A.P. 28(a)(3) provides an exception allowing that “the court may, at its option, notice a plain error not identified or distinctly specified.” There are certain exceptions carved out to procedural bars where there is a question that a party’s fundamental rights have been violated. Ethridge, v. State, 800 So.2d 1221(¶ 7) (Miss.Ct.App.2001) (citing Sneed v. State, 722 So.2d 1255, 1257(¶ 7) (Miss.1998)).

¶ 32. “According to the Mississippi Supreme Court, the reviewing court may address issues as plain error when the trial court has impacted upon a fundamental right of the defendant.” Moore v. State, 755 So.2d 1276(¶ 9) (Miss.Ct.App.2000) (internal citations omitted). “The right to be free from an illegal sentence has been found to be fundamental.” Ethridge, 800 So.2d at (¶ 7) (citing Sneed, 722 So.2d at (¶ 7)). Because the circuit court simply sentenced Davis “to serve ten (10) years” and did not distinguish that sentence among the three charges for which Davis was convicted, we find plain error and therefore remand this matter to the circuit court for appropriate sentencing. On remand, the circuit court should bear in mind “that once a circuit or county court exercises its option to impose a definite sentence it cannot subsequently set that sentence aside and impose a greater sentence.” Eastman v. State, 909 So.2d 171(¶ 12) (Miss.Ct.App.2005) (quoting Leonard v. State, 271 So.2d 445, 447 (Miss.1973)).

¶ 33. THE JUDGMENT OF THE HOLMES COUNTY CIRCUIT COURT OF CONVICTION OF COUNTS I, II, AND III IS AFFIRMED. THIS MATTER IS REMANDED TO THE CIRCUIT COURT FOR CLARIFICATION OF SENTENCE NOT INCONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . We use a fictitious name to maintain the child's anonymity.


text:
    Glenn BECKHAM, Appellant v. GENERAL MOTORS CORPORATION, Appellee.
    No. 2004-CA-02275-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.

      Austin R. Nimocks, Biloxi, attorney for appellant.
    Gene D. Berry, Jackson, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Glenn Beckham lost control of his vehicle on October 11, 2000, striking a culvert and severely injuring himself. On January 3, 2003, Beckham filed a lawsuit alleging that General Motors Corporation (“GM”) was negligent in that the air bag installed in his vehicle failed to deploy and that GM breached express and implied warranties of fitness for use. After a three day trial, the jury returned a verdict in favor of GM. Aggrieved by this, Beck-ham now appeals. Finding no error, we affirm.

FACTS

¶ 2. While driving, Beckham waved at a friend and lost control of his 2000 GMC Sierra pickup truck. The truck crossed the opposite lane of travel and collided with a drain culvert on the opposite side of the road causing the truck to possibly become airborne, land on the other side of the culvert and face the opposite direction. At no time throughout the accident did the air bag of Beckham’s truck deploy. As a result, Beckham suffered several injuries, one of which was a severe laceration to his forehead.

¶ 3. Beckham hired Chris Gilley, an accident reconstructionist and mechanical engineer, to reconstruct the accident and, if possible, explain why the air bag did not deploy. Subsequent to voir dire and an offer of proof, the lower court ruled that Gilley was not an expert in either biome-chanics or air bags, and could not give his opinion as to air bag operation. Gilley was allowed to give his expert opinion as it pertained to accident reconstruction and mechanical engineering. The details of Gilley’s testimony, voir dire and the lower court’s decision excluding parts of his testimony will be discussed below.

¶ 4. At the conclusion of the jury’s deliberations, they returned a verdict for GM and the lower court entered a judgment on that verdict. Believing he was denied a fair trial as a result of the exclusion, Beck-ham Files this appeal.

ANALYSIS AND DISCUSSION

¶ 5. The standard of review for the lower court’s admission or suppression of evidence, to include expert testimony, is an abuse of discretion standard. Tunica County v. Matthews, 926 So.2d 209(¶ 5) (Miss.2006). In order for us to find that the lower court abused its discretion, its decision must have been arbitrary and clearly erroneous. Id.

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN EXCLUDING PORTIONS OF GIL-LEY’S TESTIMONY.

¶ 6. Beckham argues that the exclusion of portions of Gilley’s testimony constituted reversible error and, in light of the relevant standard, asserts that the lower court abused its discretion in doing so. Specifically, Beckham asserts that Gilley should have been allowed to testify as to the “various components of the air bag system, explain how they worked, and talk about how the data from the different forces ... were utilized by the air bag system ...”

¶ 7. An expert witness must possess that skill, knowledge or experience in the field in which he purports to render expert testimony to make it appear that his opinion or inference will probably aid the trier in its search for truth. Seal v. Miller, 605 So.2d 240, 247 (Miss.1992). This is not to say that the purported expert possess knowledge and experience of the highest degree, only peculiar knowledge regarding the “relevant subject matter which is not likely to be possessed by laymen.” Id., (citing Henry v. State, 484 So.2d 1012 (Miss.1986) (citations omitted)). Further, a trial court may restrict an expert’s testimony to matters within his or her area of expertise. Cowart v. State, 910 So.2d 726(¶ 15) (Miss.Ct.App.2005). If it is found that the trial court did, in fact, abuse its discretion, the case will only be reversed if it is shown that the error resulting from the abuse of discretion resulted in actual prejudice or a substantial right of the aggrieved party being adversely affected. Windmon v. Marshall, 926 So.2d 867(¶ 38) (Miss.2006) (citing Busick v. St. John, 856 So.2d 304(¶47) (Miss.2003) (citations omitted)).

¶ 8. Given this legal backdrop, we now turn to Gilley’s pertinent qualifications. Gilley’s educational background included a bachelor’s degree in mechanical engineering and a masters of business administration with an emphasis in econometrics. Previous to Gilley beginning his own engineering firm, he worked for several years in a variety of engineering positions for other employers. Namely, Gilley worked as a quality assurance engineer, a field manager for a large equipment firm where he set-up and serviced “electro-me-chanical” machines, and as a forensic engineer during several construction projects. While running his own firm during the seven years preceding his trial testimony, Gilley had completed or was working on ten to eleven cases involving vehicular accidents that involved reconstruction. Additionally, Gilley completed a two month accident reconstruction course during his investigation of Beckham’s vehicle. Lastly, Gilley testified that this was his first alleged air bag defect case, but because of his engineering background he understood the air bag, its components and how it operated. During voir dire by opposing counsel, Gilley testified that he had never designed or tested an air bag or components of an air bag system. At the conclusion of voir dire Gilley was accepted as an expert in accident reconstruction and mechanical engineering.

¶ 9. After extensive questioning by the trial court, he was allowed to testify, over objection, to many points paramount to Beckham’s case. He testified that, after examining the multitude of documents GM supplied him regarding the various tests they conducted concerning air bag deployment, the delta V, or change in velocity, required for deployment of an air bag in the type of vehicle Beckham was driving at the time of the accident was sixteen miles per hour. At that delta V, Gilley testified he identified 100% deployment in GM’s testing. Next, Gilley told the jury that he calculated the delta V of the accident in question to be twenty-nine miles per hour at the point of first impact. He further testified that at that moment, based off of the GM tests he reviewed, the air bag should have deployed. He was further allowed to testify that it was his opinion that Beckham received the cut to his forehead as a result of striking the steering wheel. As it usually turns out with battling experts, GM’s expert contradicted this testimony.

¶ 10. Gilley was not allowed to testify as to how the air bag components worked or how the various forces at work during Beckham’s accident influenced the air bag’s operation. Additionally, Gilley was not allowed to testify regarding what Beckham’s injuries would have been if the air bag had deployed. As his experience and educational background indicate, this was not an abuse of judicial discretion. This was Gilley’s first case involving an allegedly defective air bag, and while that by itself is not fatal, his lack of history in working with or studying the internal workings of an am bag module east doubt on his expertise in such an area. Additionally, even if Gilley was deemed an expert in air bag module operation, Beckham’s plea would still fail as, based on Gilley’s allowed testimony, Beckham suffered no prejudice as a result of the lower court’s limitations set on Gilley’s testimony. While he did generally describe the internal workings of an air bag module during the proffer, Gilley himself indicated that he was only using that information to determine if the air bag should have fired or not. As stated supra, he testified that based on the data he received from GM and his calculations of the accident, the air bag should have fired. Exclusion of the additional information regarding a technical description of air bag operation did not deny Beckham a fair trial.

¶ 11. The question concerning Gilley’s testimony of Beckham’s probable injuries had the air bag deployed is also without merit, and likely moot based on the discussion supra. Gilley offered no specific instances of educational or practical experiences in regard to biomechanics other than generally touching on the subject in his course of study and practice of accident reconstruction. Based upon that, we can not say that the trial court clearly abused its discretion in excluding the testimony.

¶ 12. We find that the trial court did not abuse its discretion in limiting Gilley’s testimony, and, therefore, we affirm the final judgment as entered by the Circuit Court of Jackson County in favor of General Motors Corporation and against Glenn Beckham.

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

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ„ CONCUR. KING, C.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.