source: Caselaw Access Project

author: EASLEY, Justice, for the Court.

license: Public Domain

text:
    Mark HICKS v. STATE of Mississippi.
    No. 2006-KA-02086-SCT.
    Supreme Court of Mississippi.
    Dec. 6, 2007.
    Rehearing Denied Feb. 7, 2008.

      Leslie S. Lee, Jackson, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   EASLEY, Justice, for the Court.

PROCEDURAL HISTORY

¶ 1. Mark Hicks was indicted by the grand jury of Simpson County, Mississippi, on one count of aggravated assault and one count of possession of a firearm by a convicted felon. Hicks was tried and acquitted by the jury on the aggravated assault count and convicted by the jury on the count of possession of a firearm by a convicted felon. After the jury returned the guilty verdict, Hicks was adjudicated a habitual offender by the trial court. Hicks was sentenced by the trial court, the Honorable Robert G. Evans, Circuit Court Judge, presiding, to serve a term of three years in the custody of the Mississippi Department of Corrections, without the benefit of early release or parole. Hicks now appeals his conviction and sentence to this Court.

FACTS

¶2. Tambourine Hicks Travis testified that on December 19, 2005, while she was visiting her father, Joseph Hicks, her brother, Mark Hicks, came to their father’s house. Hicks was upset. Tambourine stated that Hicks “walked in and said, ‘Somebody is going to die.’ ” Hicks claimed that somebody broke into the house he was living in and stole some bread, bologna, and crackers. Tambourine testified that Hicks then went over to the far side of her father’s bed and picked up a rifle that belonged to her father. The rifle had a scope on it. Hicks loaded the rifle with bullets that were located on the entertainment center beside the bed. Tambourine stated that she watched Hicks load the rifle.

¶ 3. Tambourine followed Hicks out of the bedroom toward the kitchen. Hicks stated that Eric McDonald and Donny broke into the house and stole his bread, bologna, and crackers. Eric and Eric’s wife, Joyce McDonald, left Joseph Hicks’s house, headed toward their house. Tambourine testified that a short time later, she heard three shots fired and saw Joyce run under the car porch of Joseph Hicks’s house. Joyce came inside and asked those inside to call 911 because Hicks was shooting at them. Tambourine testified that she called 911 and yelled to Hicks that she had called the police. Hicks wiped the gun down with a rag, and he told his girlfriend to carry the gun back to his father’s house.

¶ 4. Eric testified that his uncle, Hicks, came into his grandfather’s house and made the threat that somebody was going to get killed or die. Hicks then went over to the bed and got a rifle, grabbed some shells, and started loading the gun. Hicks then went out the door. Eric stated that he and his wife, Joyce, then left the house, headed back to their house. When Hicks fired the first shot, they took cover behind their car. Eric told Joyce to go call the police. After Tambourine told Hicks that she had called the police, Hicks wiped the gun down and had his girlfriend return the gun to Joseph Hicks’s house.

¶ 5. Cindy Jensen, the Circuit Clerk of Simpson County, testified that she was subpoenaed as the custodian of the court files to bring court files numbered 7532 and 7688 with her to court. Jensen verified that the certified copy of the final judgment and sentence of the court as to defendant Mark Hicks, in cause number 7532, was a true and correct copy. Jensen stated that the judgment reflected that Mark Hicks was convicted of grand larceny on March 31, 1986. In cause number 7688, Jensen testified that the true and correct, certified copy of the judgment reflected that the defendant, Mark Hicks, was convicted of burglary on March 13, 1987. Jensen was asked to look through the actual files in cause numbers 7532 and 7688 to verify that there was neither a pardon from the governor of the State of Mississippi nor any relief from disability that would allow Mark Hicks to carry a firearm.

¶ 6. On cross-examination, Jensen testified that in cause number 7688, the burglary conviction, the file contained a social security number on the commitment order that goes to the penitentiary. She stated that she did not personally know Hicks. Then the defense asked Jensen if there was anything in the files that could identify Hicks as that Mark Hicks. Jensen responded that “the only thing contained is a date of birth and social, and it has a place for race and sex, which is black male. But there is no picture.” The defense asked Jensen, “do you know if there’s possibly another Mark Hicks out there?” Jensen responded, “I do not know that.” On re-direct, Jensen stated, “I don’t know of another Mark Hicks.”

DISCUSSION

I. Whether the trial court erred by not granting Hicks’s motion for a directed verdict or his motion for judgment notwithstanding the verdict (JNOV).

¶ 7. Hicks made a post-trial motion for JNOV, which the trial court denied. Hicks argues that the State did not prove beyond a reasonable doubt that he was a convicted felon. A motion for JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “[T]his Court properly reviews the ruling on the last occasion the challenge was made in the trial court.” Id. at 778. Here, this occurred when the trial court denied Hicks’s motion for JNOV.

¶ 8. Hicks argues that the State failed to prove beyond a reasonable doubt that Hicks was a convicted felon because the evidence presented was insufficient to establish that Hicks was the Mark Hicks convicted in court files number 7532 and 7866. The State disagrees, relying on Jensen’s testimony as to the information contained in the court file and the certified final judgment and sentence of the court in cause numbers 7532 and 7866 introduced into evidence, as well as this Court’s holding in Branning v. State, 224 So.2d 579, 580 (Miss.1969). In Branning, 224 So.2d at 580, the State sought to increase the criminal penalties against Branning, pursuant to Section 6866 Mississippi Code 1942 Annotated (Supp.1968), since this was his third offense.

¶ 9. In Branning, this Court considered whether it was error for the trial court to give the following instruction to the jury:

The Court instructs the Jury for the State of Mississippi that under the law, identity of name of the Defendant and the person previously convicted is prima facie evidence of identity of person, and if you believe from the evidence in this, beyond a reasonable doubt that the name of the Defendant in this case and the name of the person previously convicted are the same, then you would be warranted in the presumption that they are in fact the same person.

Branning, 224 So.2d at 580.

¶ 10. The Court held:

There is no merit in appellant’s criticism of the instruction granted the State that identity of name of the defendant and the person previously convicted is prima facie evidence of identity of person. The appellant did not deny his identity with the two previous convictions charged and proved; therefore, the presumption is that the appellant is one and the same person as the one previously convicted. The jury was entitled to this instruction as to the law from the court. We said in Goldsby v. State, 240 Miss. 647, 123 So.2d 429 (1960), cert, den., 365 U.S. 861, 81 S.Ct. 829, 5 L.Ed.2d 824 (1961): “Moreover, it is a well established rule of evidence and practice in this State that the identity of name of the defendant and the person previously convicted is prima facie evidence of identity of person, and, in the absence of rebutting testimony, supports a finding of such identity. McGowan v. State, 1946, 200 Miss. 270, 281, 25 So.2d 131, [suggestion of error overruled,] 26 So.2d 70.” 240 Miss, at 674, 123 So.2d at 439.

Branning, 224 So.2d at 582.

¶ 11. Similarly, in Course v. State, 461 So.2d 770, 771 (Miss.1984), this Court stated:

Clarence Course appeals from his conviction of the crime of burglary of a dwelling in the Circuit Court of the First Judicial District of Hinds County and sentence to serve ten years in the Department of Corrections. Having also found Course had been previously convicted of two separate felonies, one for armed robbery and another for burglary, all as charged in the indictment, the circuit judge sentenced Course as a habitual offender to serve the full ten years without parole, probation or reduction of sentence under Miss.Code Ann. § 99-19-81.
Course has two assignments of error, the first being that the State, simply by producing records that one “Clarence Course” was convicted of the two previous felonies, did not in and of itself identify that person as the defendant on trial. The records did furnish a presumption of such identity, however, which could have been easily overcome if erroneous. See: Branning v. State, 224 So.2d 579 (Miss.1969); Goldsby v. State, 240 Miss. 647, 123 So.2d 429, [240 Miss. 650,] 124 So.2d 297, [240 Miss. 647,] 129 So.2d 127 (1960); and 1 Wharton’s Criminal Evidence, § 103, pp. 180-82 (Torcai ed. 13th ed.1972). We do add the State would be well advised to be prepared to go further than mere records, however, especially where the name is not unusual or uncommon....

¶ 12. However, in Branning and Course, this Court addressed the question in the context of sentencing the defendant to an enhanced sentence as a habitual offender. Here, we must examine the evidence presented to determine whether the State presented sufficient evidence to support Hicks’s conviction for possession of a firearm by a convicted felon.

¶ 13. In Ivy v. State, 949 So.2d 748, 751 (Miss.2007) (internal citations omitted), this Court reiterated the standard of review for legal sufficiency as follows:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.”
However, if a review of the evidence reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient.

¶ 14. The circuit clerk, Jensen, testified that she was subpoenaed by the State to bring court files numbered 7532 and 7688 with her to court. She stated that the name of the defendant in files numbered 7532 and 7688 was Mark Hicks. According to the certified copy of the final judgments and sentences, Hicks was convicted of grand larceny on March 31, 1986, in cause number 7532, and he was convicted of burglary on March 13, 1987, in cause number 7688. Jensen testified that the court files did not contain a pardon from the governor of the State of Mississippi nor any relief from disability. Jensen stated that she did not personally know Hicks, and it was not her duty to identify Hicks. While Jensen stated that there was no picture in the court file, file number 7688 contained a social security number on the commitment order to the penitentiary. Jensen also stated that the file contained a date of birth and information listing the race and sex as a black male.

¶ 15. There also was sufficient evidence to support that Hicks was in possession of a weapon. Tambourine testified that she followed her brother, Hicks, into their father’s bedroom, where Hicks retrieved a rifle. She then followed Hicks' into the kitchen. She observed Hicks go outside with the gun, and she called the police when she heard the gunfire. She saw Hicks wipe down the rifle and have his girlfriend return the gun to her father’s house.

¶ 16. Eric, Hicks’s cousin, testified that he saw Hicks go over to the bed and get a rifle, grab some shells, and load the gun. Hicks then went out the door. According to Eric’s testimony, he and his wife, Joyce, left, headed back to their house. They took cover when Hicks fired the first shot. The police were called to the scene. Eric’s wife, Joyce, testified to a similar account of events.

¶ 17. The jury was called upon to review the evidence presented to determine whether the State met its burden and presented sufficient evidence to establish, beyond a reasonable doubt, each element of the offense as to each count. They were instructed by the trial court to use their good common sense and sound honest judgment in evaluating the evidence. The trial court refused the jury’s request to inform them whether Hicks’s social security number matched the circuit clerk’s files. However, the jury returned a guilty verdict on the count of possession of a firearm by a convicted felon and a not-guilty verdict on the count of aggravated assault after hearing evidence. See Ivy, 949 So.2d at 751. Considering the evidence in the light most favorable to the State, we find that there was sufficient evidence to convict Hicks for possession of a firearm by a convicted felon. See Id.

II. Jury Instruction S-4.

¶ 18. Hicks admits that no objection was offered to the trial court as to the State’s jury instruction S-4. Therefore, Hicks argues on appeal that the trial court’s giving the jury instruction amounted to plain error. To prevail under the doctrine of plain error, the defendant must show that there was error, that the error resulted in a manifest injustice, and that it affected the defendant’s fundamental rights. Williams v. State, 794 So.2d 181, 187 (Miss.2001). “This Court has found plain error in failing to instruct the jury properly....” Williams, 794 So.2d at 188 (citing Berry v. State, 728 So.2d 568, 570 (Miss.1999) (finding plain error because failure to fully instruct the jury on the elements of the crime infringes on the fundamental rights of a defendant)).

¶ 19. Jury Instruction S-4 stated:

The Court instructs the jury that it is unlawful for any person who has been convicted of a felony under the laws of the State of Mississippi, to possess any firearm unless such person has received a pardon, or has received a relief from disability pursuant to Section 925(c) of Title 18 of the United States Code or has received a certificate of rehabilitation from the Court in which he was convicted.
The Court further instructs the jury that the defendant has not received a pardon, he has not received a relief from disability pursuant to Section 925(c) of Title 18 of the United States Code and he has not received a certificate of rehabilitation from this Court; therefore, if you find beyond a reasonable doubt that on or about December 19, 2005, in Simpson County, Mississippi:
1. the defendant was a convicted felon, having been convicted of grand larceny on March 31, 1986, in Cause Number 7532 in the Circuit Court of Simpson County, Mississippi, and that he was also convicted of burglary on March 13, 1987, in Count I of Cause Number 7688 in the Circuit Court of Simpson County, Mississippi, and that,
2. on or about December 19, 2005, in Simpson County, Mississippi, the defendant had in his possession a firearm, then, on your oaths as jurors, you shall find the defendant guilty of the unlawful possession of a firearm by a convicted felon, as contained in Count II of the indictment.
You are further instructed that if the State has failed to prove any one or more of the aforementioned elements beyond a reasonable doubt, then you shall find the defendant not guilty.

¶ 20. Hicks argues that jury instruct S-4 peremptorily told the jury that Hicks had not received a pardon, a relief from a disability or a certificate of rehabilitation, thereby resulting in plain error by relieving the jury from finding each element of the offense. Mississippi Code Annotated Section 97-37-5(1) (Rev.2006) provides:

It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the United States Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.

(Emphasis added).

¶ 21. The absence of a pardon, relief from a disability, or a certificate of rehabilitation are not essential elements of the crime of possession of a firearm by a convicted felon. See Miss.Code Ann. § 97-37-5 (Rev.2006). While this Court has not considered this issue, the Court of Appeals specifically addressed this same question from a different perspective in Estes v. State, 782 So.2d 1244, 1255 (Miss.Ct.App. 2000). In Estes, the court determined that whether the defendant “received a pardon for the felony, or had not received a certificate of rehabilitation pursuant to Miss. Code Ann. § 97-37-5(c)” was an affirmative defense that was incumbent upon the defendant to raise, not an element of the offense for the State to have to prove beyond a reasonable doubt. Id. The court stated:

Moreover, proposed instruction D^l was properly refused because it did not correctly state the law. A trial court cannot be put in error for refusing an instruction that misstates the law. Willie v. State, 585 So.2d 660, 673 (Miss.1991). The portion of instruction D-4 in error required the State, in order to find him guilty, to prove that Estes, a convicted felon, had not received a pardon for the felony, or had not received a certificate of rehabilitation pursuant to Miss.Code Ann. § 97 — 37—5(e) (Rev.1994). When a fact is peculiarly within the knowledge of one of the parties so that innocence can be proven with no difficulty, the law will not render it incumbent upon the other side to prove the innocence. Miller v. State, 105 Miss. 777, 779, 63 So. 269, 269 (1913). This is an affirmative defense which would have placed the burden on Estes to establish.

Thus, it is not upon the State to prove a negative. Id.

Estes, 782 So.2d at 1255 (emphasis added).

¶22. Applying the reasoning found in Estes, this assignment of error is without merit. The trial court did not err in giving jury instruction S-4.

III. Batson.

¶ 23. On appeal, Hicks argues that the trial court erred in allowing the State to exercise its peremptory strikes against two African-American jurors. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Flowers v. State, 947 So.2d 910, 917-18 (Miss.2007), this Court recently stated the standard of review in considering the trial court’s ruling on a Batson challenge, stating:

This Court gives great deference to a trial court’s determinations under Bat-son because they are based largely on credibility. Berry v. State, 802 So.2d 1033, 1037 (Miss.2001) (citations omitted). In reviewing a claim for a Batson violation, “we will not overrule a trial court on a Batson ruling unless the record indicates that the ruling was clearly erroneous or against the overwhelming weight of the evidence.” Thorson v. State, 721 So.2d 590, 593 (Miss.1998).
In lodging a Batson claim, the party who objects to the peremptory strike “must first make a prima facie showing that race was the criteria for the exercise of the peremptory strike.” McFarland v. State, 707 So.2d 166, 171 (Miss. 1997) (citing Batson, 476 U.S. at 96-97[, 106 S.Ct. 1712]). A defendant can establish a prima facie case of discrimination by showing: (1) that he is a member of cognizable racial group; (2) that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race; (3) and the facts and circumstances raised an inference that the prosecutor used his peremptory challenges for the purpose of striking minorities. Snow v. State, 800 So.2d 472, 478 (Miss.2001). Once a prima facie case has been established, the party exercising the challenge has the burden to articulate a race-neutral explanation for excluding that potential juror. McFarland, 707 So.2d at 171. As long as discriminatory intent is not inherent in the explanation given by the prosecution, “the reason offered will be deemed race neutral.” Randall v. State, 716 So.2d 584, 588 (Miss.1998) (citation omitted). After a race-neutral explanation has been given, “the trial court must determine whether the objecting party has met its burden to prove that there has been purposeful discrimination in the exercise of the peremptory,” i.e., that the reason given was a pretext for discrimination. McFarland, 707 So.2d at 171. This Court has recognized five indicia of pretext that are relevant when analyzing the race-neutral reasons offered by the proponent of a peremptory strike, specifically:
(1) disparate treatment, that is, the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge; (2) the failure to voir dire as to the characteristic cited; ... (8) the characteristic cited is unrelated to the facts of the case; (4) lack of record support for the stated reason; and (5) group-based traits.
Manning v. State, 765 So.2d 516, 519 (Miss.2000) (citations omitted). The burden remains on the opponent of the strike to show that the race-neutral explanation given is merely a pretext for racial discrimination. Berry, 802 So.2d at 1042.

¶ 24. During jury selection, the State exercised five of its peremptory strikes against African-American jurors. Hicks only raises an assignment of error as to two jurors: Juror 12, Curtis L. Magee; and Juror 13, Barbara K. Berry. The State did not exercise peremptory strikes as to Juror 14, Brenda Weathersby, a black female; Juror 15, Willie B. Bridges, a black female; and Juror 11, Perry Brown, a black male. The record states that the composition of the jury was as follows: Juror 1, Candise Smith, white female; Juror 7, Richard Mullins, white male; Juror 9, Michael Clark, white male; Juror . 11, Perry Brown, black male; Juror 14, Brenda Weathersby, black female; Juror 15, Willie B. Bridges, black female; Juror 20, Tammy L. Collins, black female; Juror 22, Sherry A. Blackwell, white female; Juror 28, Connie S. Pruitt, white female; Juror 24, Brian M. Hull, black male; Juror 26, Rita C. Holliday, black female; Juror 29, Harry M. Williams, white male; and the alternate juror, Juror 32, Sherry M. Hubbard, white female.

¶ 25. The trial court required race-neutral reasons for the State’s exercise of its peremptory challenges. As to Juror 12, Curtis L. McGee, the record shows that the State provided the following reason for striking the juror:

He’s got a brother-in-law in the penitentiary, and when I was talking to him, he was inattentive to me. But I noticed, when Daniel [defense counsel] was talking to him, he was looking at Daniel and looking at the defendant and grinning.

The defense argued that Juror 12 looked attentive and that the State had not struck Juror 9, a white juror whose uncle was in jail, or Juror 10, a white juror who had a son-in-law who had been in jail. After hearing arguments, the trial court stated:

[T]hose two coupled together makes it a race|7]gender[-]neutral [reason]. The Supreme Court has said that inattentiveness alone is adequate to strike a juror or is a neutral reason for striking a juror. So I’ll allow that one to stand.

¶26. The State also exercised a peremptory strike against Juror 13, Barbara K. Berry. The State provided the following reason for striking Juror 13:

She stated that she had heard of a Defendant Hicks, and when she was asked would that affect her decision, she was shaking her head no before the question was even gotten out of the questioner’s mouth. And she answered too quick to the fact that her-I mean, she was not affected by-or her vote would not be affected by her having heard of Hicks. Now for the record, 14 is a black female, 15 is a black female, 11 is a black male. So I haven’t struck all blacks.

The defense stated that the State did not strike Juror 3, who stated that he knew Hicks, but the defense counsel acknowledged that he did not recall Juror 3 responding too quickly to the questioner. The trial court found:

Well, I think answering too quickly could show a predisposition. So I’ll give you the benefit of the doubt on that, Mr. Bowen, and will let the strike stand.

¶ 27. “The trial judge acts as finder of fact when a Batson issue arises.” Lynch v. State, 877 So.2d 1254, 1270 (Miss. 2004). “The race neutral explanations must be viewed in the light most favorable to the trial court’s findings.” Walker v. State, 815 So.2d 1209, 1214 (Miss.2002). “This Court has set out a non-exhaustive list of race-neutral reasons for the exercise of peremptory challenges: ‘living in a “high crime” area, body language, demeanor, prosecutor’s distrust of the juror, inconsistency between oral responses and juror’s card, criminal history of juror or relative, social work and other types of employment, and religious beliefs.’ ” Lynch, 877 So.2d at 1271-72 (quoting Walker, 815 So.2d at 1215) (emphasis added).

¶ 28. “Inattentiveness alone has been accepted as a race-neutral explanation for the exercise of a peremptory strike.” Home v. State, 825 So.2d 627, 636 (Miss. 2002) (citing Puckett v. State, 788 So.2d 752, 760 (Miss.2001)). While this Court has never held that answering too quickly is a race-neutral reason for striking a juror, the State contends answering too quickly is akin to inattentiveness. That is, the juror is not interested enough to allow the questioner to complete his or her question before answering the question. Here, the trial court found that Juror 13’s answering too quickly could indicate a predisposition, and the State was entitled to the benefit of that doubt. See Lynch, 877 So.2d at 1271-72 (a juror’s body language and demeanor are race-neutral reasons); see also Walker, 815 So.2d at 1215.

¶ 29. The record demonstrates that the trial court made a sincere, bona fide effort to properly weigh and examine the race-neutral reasons provided by the State. Nothing in the record reveals that the trial court abused its discretion in finding that the State provided race-neutral reasons for striking Jurors 12 and 13.

CONCLUSION

¶ 30. The judgment of the Circuit Court of Simpson County, Mississippi, is affirmed.

¶ 31. CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF

THREE (3) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCE SHALL NOT BE REDUCED OR SUSPENDED NOR SHALL THE APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION.

SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Eric McDonald is Hicks’s and Tambourine's nephew, and Donny is their cousin.

      . Joyce McDonald also testified to a similar account of events as provided by Tambourine and Eric.

      . Jensen stated that she had worked in the circuit clerks’ office since November of 1984, first as a deputy clerk and then as the circuit clerk.

      . Neither the State nor the defense asked Jensen to state the social security number that was listed in the court file.

      . Juror 10 did not serve on the jury.

      . Juror 3 did not serve on the jury.


author: RANDOLPH, Justice, for the Court.

text:
    Deandre DAMPIER v. STATE of Mississippi.
    No. 2006-KA-01792-SCT.
    Supreme Court of Mississippi.
    Jan. 24, 2008.

      Kelsey Levoil Rushing, Ramel Lemar Cotton, Jackson, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before SMITH, C.J., CARLSON and RANDOLPH, JJ.
   RANDOLPH, Justice, for the Court.

¶ 1. Deandre Dampier was charged with the capital murder of Harry McGuffee, Jr. (“McGuffee”) during the commission of a robbery. Dampier was found guilty by a jury. The circuit court sentenced him to serve a term of life imprisonment without the possibility of parole, as Dampier was a minor.

FACTS

¶2. According to Dampier’s July 23, 2004, statement, Jermaine Rogers (“Jermaine”):

called me [on July 6, 2004] and he told me that he wanted me to come help him pick up these cars_■ [H]e said Five Star [Auto Sales (“Five Star”) ].... Then I said how you gonna get ‘em and he said I’m gonna buy ‘em.... Then he said, [h]ow we gonna do is, I’m gonna get you to drive me up there, then I’m gonna get you to go to the store and park the ear. Naw, that my [Dampier’s] girlfriend [Tamesha McClendon] stays close over. I said take the cars to her house which is Indian Creek Apartments.

On July 7, 2004, Mark Dwayne Hankins loaned his .22 pistol to Jermaine, his neighbor at Eastside Manor Apartments in Ma-gee. Hankins testified that Jermaine claimed he needed the gun because “he was going fishing and there were snakes and alligators where he was going.”

¶ 3. Clarissa Rogers (“Clarissa”), Jermaine’s wife, testified that on July 8, 2004, at approximately 9:30 a.m., Jermaine stated he was going to apply for a new job and left in their Toyota Corolla. From there, Jermaine drove to Dampier’s residence. When Dampier observed the gun on Jermaine, he asked “why’d you got your pistol with you? He said no reason.” Dampier then drove the Corolla to Five Star with Jermaine in the passenger seat.

¶ 4. McGuffee owned and operated Five Star, a used car dealership located on Highway 49. At 11:04 a.m., McGuffee made a phone call to his wife, Charlotte McGuffee (“Charlotte”), from Five Star. According to Charlotte:

[w]e were talking about what the plans were for the day, and I heard the alarm go off. Someone had pulled right into the driveway.[] ... I said, “I’d better let you go because it sounds like you have a customer.”

Captain Andrew Barrett of the Florence Police Department testified that in Dampier’s July 9, 2004, interview, he stated “at Five Star ... he went to turn into the parking lot, and [Jermaine] told him, ‘... you need to stop right here at this gate,’ blocking the gate.” Thereafter:

Dampier stated ... that [Jermaine] got out of the vehicle, went inside the building, came back out with Mr. McGuffee, and they were standing there looking at the green [Ford] Mustang. They had lifted the hood on the green Mustang,[] and [Dampier] stated that [Jermaine] waved at him, indicating, “[o]kay, you can leave,” and that he drove [the Corolla] from there back to [McClendon’s] ... apartment at Indian Creek Apartments, which is south on 49 from Five Star Auto.... [] [H]e waited there until [Jermaine] showed up in the green Mustang.

¶ 5. According to Dampier’s July 9, 2004, statement, at McClendon’s apartment, he:

told her about what was goto’ on down there[, Jermaine] wanted me to come get these cars for him and stuff, I told her that he had a pistol.[] I didn’t know he say what he was gonna do with it, he said he wouldn’t gonna do nothing with it, so within no time, [Jermaine] came back, he picked me up [in the Mustang].

Upon arriving back at Five Star, Dampier stated that:

I’m th[i]nking everythang’s alright ... I got ... the Jeep and we drove off, got ready to drive off and [Jermaine] closed the gate and ... he told me that the man, was ... in a hurry so I’m th[i]nk-ing the man was in a hurry, whatever so [Jermaine] closed the gate so we leave....

Joe Ishee testified that he drove past Five Star at around 11:25 a.m. and noticed “a big colored man closing the gate. When I come by there he was closing that white gate, and he went through there. And there was an SUV, a dark-colored vehicle there.” Jermaine then drove off the car lot in the Mustang and Dampier followed him southbound on Highway 49 in the Jeep.

¶ 6. Surveillance video subsequently was retrieved by law enforcement from Hot Wheels Auto, which is located south of Five Star, on the southbound side of Highway 49. That video was sent to Richard Vorder Bruegge, Ph.D., who works in the Forensic Audio Video and Image Analysis Unit of the FBI in Quantico, Virginia. At trial, Dr. Vorder Bruegge was accepted as an expert in forensic image analysis and video analysis. After reviewing the video, Dr. Vorder Bruegge limited his focus to southbound traffic, as the video quality severely limited any conclusions regarding northbound vehicles. Regarding the green Mustang, Dr. Vorder Bruegge concluded that if it “came down in that period from 11:00 to 12:00, then it was at ... 11:25:32.” As to the black Jeep, Dr. Vorder Bruegge “found two instances in which there was a vehicle that was consistent. ... One of them is at 11:25:42, and the other one was at 11:23.” Ultimately, Dr. Vorder Bruegge concluded that if the black Jeep followed the green Mustang, as Dampier claimed, it did so at 11:25:42.

¶ 7. In Dampier’s July 23, 2004, statement, he noted that Jermaine pulled over to the side of the road soon after leaving Five Star, followed by Dampier, and “took the tag off the Jeep and the Mustang and put both of ‘em in the trunk of the Mustang.” Soon thereafter, Jermaine pulled off the road again, claiming that the car was running hot, and proceeded to the home of Claude Holloway. Dampier stated that Holloway was not home, .therefore, they left the Mustang there and returned to Eastside Manor Apartments in the Jeep.

¶ 8. Allen Lewis discovered McGuffee’s lifeless body. Lewis’s emergency call was received at 11:50 a.m., and the first dispatch unit arrived by 12:01 p.m. According to Barrett, McGuffee “had two gunshot wounds to the forehead, ... an exit wound to his cheek, ... a gunshot wound in his left eye, and another one in the back of his head that was the entrance wound.” An autopsy confirmed four gunshot wounds caused McGuffee’s death. Upon arriving at the scene, Charlotte informed the police that the Mustang was missing from the car lot, and Barrett then determined that keys were missing to “[a] green Ford Mustang and a black Jeep Cherokee.”

¶ 9. Clarissa testified that Jermaine arrived at Eastside Manor Apartments with Dampier at approximately 12:30 p.m. According to Clarissa:

I asked Jermaine where were the keys to my car so that I could go ahead and leave for work. And he pulled a key out of his pocket and he kind of threw it on the couch, but it had a yellow tag on it. I read the tag, and it said that it was a 1996 Jeep Cherokee that was black.... So I looked out the window at the vehicle, and I said, “[w]here did you get this from?” I said, “[y]ou didn’t steal this, did you?”
He said, “[n]o.”[] He said, “[m]y aunt was going to help me get a loan and she did to get you a better vehicle.”[]

Furthermore, Clarissa testified that Jermaine said:

“my car broke down on Mary Grove, so I need to go and get it.” ...
Then he pulled out another key, and it had a yellow tag on it, and it said Ford Mustang....
So I asked him for the paperwork on the vehicles.... I asked him where was my car. And he said it was in Florence at [Dampier’s] girlfriend’s apartment. I told him that I wanted to see the paperwork. He said he would bring it to my job. And I told him no ... I would see it when I got off that night.

Clarissa then drove Jermaine and Dampier to Auto Zone in the Jeep and proceeded to her workplace.

¶ 10. At Auto Zone, Jermaine purchased a new fan belt and a wrench. Thereafter, Clarissa’s sister, April, transported Jermaine and Dampier to the Mustang at Holloway’s home. After fixing the belt, Jermaine and Dampier drove back to Eastside Manor Apartments in the Mustang.

¶ 11. At the apartment, Dampier stated that Jermaine requested that he fill out the title applications “cause his wife knew his handwriting.” Dampier further claimed that Jermaine signed McGuffee’s name on both title applications. After receiving a phone call, Jermaine informed Dampier that McGuffee “had been shot. And so like that I, what’d they kill him for. He told me that they found some drugs on him and they had stole a Crown Vic from his lot.” Dampier then accompanied Jermaine when he returned the gun to Han-kins.

¶ 12. On her way to work, Clarissa passed Five Star and noticed “a lot of police and ... the news.” This was significant to her as Jermaine “told me that he got the Mustang from that dealership.” At work, Clarissa learned about the incident at Five Star and left work early, returning to Eastside Manor Apartments. At the apartment, Clarissa demanded that Jermaine and Dampier show her the paperwork related to the vehicles. As Jermaine had told Clarissa that the paperwork was in the Corolla, Clarissa drove them to McClendon’s apartment in the Jeep, and Jermaine then gave her some handwritten titles which Clarissa testified did not “look right.” Thereafter, Clarissa returned to Eastside Manor Apartments in the Jeep, while Jermaine took Dampier home in the Corolla, before proceeding back to the apartment complex himself.

¶ 13. According to Barrett, at around 11:00 p.m.:

I got a phone call from Rankin County dispatch, who stated that there was a man who had contacted them named Claude Holloway. He ... stated that he knew who was driving the green Mustang that he had seen on the news, that his name was Jermaine. He did not know the last name at the time, but he knew he lived in Eastside Apartments ....

Officers from the Magee Police Department and the Florence Police Department then proceeded to Eastside Manor Apartments, where they observed the Mustang and the Jeep side-by-side in parking spaces directly below Jermaine’s apartment. In the apartment, Barrett testified that Jermaine:

walked over to the kitchen drawer ... pulled out some applications for titles ... and handed them to me. I immediately noticed they were handwritten. I noticed there were different spellings on the titles for Mr. McGuffee’s name. I also noticed that the VIN number was the same on both applications for titles for the Jeep and the Mustang.

While Jermaine insisted that he purchased the vehicles on July 6, 2004, a subsequent call to McGuffee’s family revealed that Five Star had not been open for business that day. Jermaine was then taken into custody and transported to the Magee Police Department.

¶ 14. In the early morning hours of July 9, 2004, Hankins called the Florence Police Department, informed them that his gun may have been used in the incident at Five Star, and delivered the gun and its spent casings to police. Subsequently, officers proceeded to the home of Dampier’s father, were granted permission to search, and then transported Dampier to the Florence Police Department. At the police department, Barrett took Dampier’s initial statement.

¶ 15. On February 9, 2005, Jermaine and Dampier were indicted in the Circuit Court of Rankin County for capital murder and conspiracy to commit murder. On August 29, 2006, Dampier’s jury trial commenced. At trial, the State offered the testimony of Kenneth Harth, who was an inmate in the Rankin County jail from January 7, 2004, until November 10, 2004, and was housed in the same cell block as Dampier. Harth testified that Dampier:

got to telling me what had happened in his situation and why he was there. And he told me that he and [Jermaine] had planned a robbery, and that [Jermaine] had knew the man that owned the car lot, and that they were in need for some money, and that [Jermaine] promised him that he would get a truck out of the deal.... And he told me that in the process of the robbery, that he had taken cash and that he had taken a cell phone, and that he had drove ... a Jeep Cherokee, off the lot of the car dealership.

While Jermaine did the shooting, Dampier told Harth that he “was the one ... who was supposed to carry out the robbery and ... the murder, and [Jermaine], I guess, assumed that he could do it and they were going to have to kill the man because the man knew [Jermaine].”

¶ 16. The jury found Dampier guilty of capital murder. The circuit judge then sentenced Dampier to “life without parole[,]” adding that “this sentence is as justified as any of them that I’ve ever handed down.”

ISSUES

¶ 17. This Court will consider:

(1) Whether Dampier was entitled to a representative jury venire.

(2) Whether the crime scene photographs were overly prejudicial.

(3) Whether the circuit court erred in refusing to give a lesser-offense instruction.

(4) Whether the circuit court erred in refusing Dampier’s Instruction D-4.

(5) Whether the circuit court erred in granting State’s Instruction S-6 and refusing Dampier’s Instruction D-10.

(6) Whether the circuit court committed reversible error in granting only one of Dampier’s proposed jury instructions.

(7) Whether the comments made by the State in closing argument were plain error.

ANALYSIS

I. Whether Dampier was entitled to a representative jury venire.

¶ 18. African-Americans compose roughly eighteen percent of Rankin County’s population. At trial, Dampier argued that the jury venire lacked fair representation, as there was only one African-American among its thirty-eight members. Specifically, Dampier’s argument is “not necessarily the process in which they were chosen per se. It is the outcome of that process.... ” Carol Swilley, the Rankin County Circuit Clerk, testified that “because of the new ... State Election Management System program, all 82 counties in the state of Mississippi are using the same jury selection program.... [T]he system is set up to follow exactly what the code section says.” As such, the 12,000 available names in Rankin County, which in no way identify race, were “randomly drawn through the computer into the jury pool.” The circuit court concluded that:

there has been just no showing of purposeful discrimination. And I believe that the testimony provided by Ms. Swil-ley — I don’t know quite frankly what more that the circuit clerk’s office can do in relation to having an impartial venire drawn. So that being the case, I’m going to take your motion as a motion to quash the entire venire, and it will be denied.

¶ 19. On appeal, Dampier argues that the discriminatory effect alone “was prejudicial and the case should be reversed.” The State initially responds that this issue “is procedurally barred because of failure to cite legal authority to support [Dampier’s] argument....” Next, in addressing the merits, the State argues that Dampier cannot establish a prima facie case that the cross-section requirement was violated as “the testimony of the Rankin County Circuit Clerk which described the process by which potential jurors are randomly selected by computer shows that systematic exclusion of any racial group would be virtually impossible.”

¶ 20. This Court finds this issue procedurally barred as “the failure to cite authority in support of an argument eliminates our obligation to review the issue.” Glasper v. State, 914 So.2d 708, 726 (Miss.2005) (citing Byrom v. State, 868 So.2d 836, 868 (Miss.2003)).

¶ 21. Procedural bar notwithstanding, this Court also finds that this issue is without merit. Dampier cites Craft v. State, 380 So.2d 251, 255 (Miss.1980), for the proposition that discriminatory effect will suffice, even in the absence of discriminatory intent. A review of Craft reveals no such statement. Craft supports the proposition that a discriminatory effect in the context of “persistent absence of under-representation of a race on juries raises a prima facie case of discrimination.” Id. (citations omitted). No evidence of such is presented here.

¶ 22. In Haynes v. State, 934 So.2d 983, 986 (Miss.2006), this Court outlined the necessary elements for establishing “a violation of the right to an impartial jury representing a fair cross-section of the community....” Id. As in Haynes, “the venire from which the jury was selected was produced by a computer which randomly selected names from the voter rolls of Rankin County.” Id. Furthermore, Dampier “objected only to the results of the selection process, not the manner in which the jury was drawn.” Id. at 987. As such, Dampier “has failed to make a showing of any of the prima facie elements,” and this Court concludes that this argument is without merit. Id.

II. Whether the crime scene photographs were overly prejudicial.

¶ 23. At trial, Dampier objected to the admission of multiple crime scene photographs. Regarding State’s Exhibits 21 through 29, Dampier argued that:

it is uncontested that [McGuffee] was killed[,] ... was shot[,] ... [and] was in the building, lying on the floor. We have ... testimony from the person who ... found him [Lewis]. The prejudicial effect of this highly outweighs the probative value that it might have since it is uncontested.

The State responded that:

the testimony shows that, number one, this was a bloody scene. There’s been some statements on cross[-]examination that we have Mr. McGuffee’s blood on [Jermaine]. Those pictures are necessary to show it was a bloody scene at the area in front of the desk and the splatter away from the body was not that great. That would explain the absence of blood on [Dampier]. That’s what we expect the officer to testify, about the blood splatter. Further, the position of the body is important and ha[s] evidentiary value. The finding of the bullet fragments have evidentiary value.

The circuit court admitted the photographs, concluding that “[u]nder the 403 standard, the probative value is not outweighed by the prejudicial effect.”

¶ 24. Regarding State’s Exhibits 56 and 57, counsel for Dampier stated “we’re just restating our other argument that it’s more prejudicial than probative, and at this point it appears to be merely cumulative because there are similar photos taken.” As to Exhibit 56, the circuit court found that “doing the balancing test ... this does show the location of the bullet fragment relative to the victim. The probative value is not substantially outweighed by the prejudicial effect. That one will be admitted.... ” Addressing Exhibit 57, the circuit court concluded that the photograph would aid the State’s argument that the body had been moved and found that “the probative value is not substantially outweighed by the prejudicial effect. ...”

¶25. Mississippi Rule of Evidence 403 provides, in pertinent part, that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of ... needless presentation of cumulative evidence.” Miss. R. Evid. 403 (emphasis added). “The admission of photographs is a matter left to the sound discretion of the trial judge and ... his decision favoring admissibility will not be disturbed absent a dear abuse of that judicial discretion.” Noe v. State, 616 So.2d 298, 303 (Miss. 1993) (citing Gardner v. State, 573 So.2d 716 (Miss.1990)) (emphasis added). The discretion of the trial judge is “almost unlimited ... regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Noe, 616 So.2d at 303 (quoting Williams v. State, 544 So.2d 782, 785 (Miss.1987)). So long as a photograph “has probative value and its introduction serves a meaningful evidentiary purpose[,]” it may still be admissible despite being “gruesome, grisly, unpleasant, or even inflammatory.” Id. (citations omitted). In this case, the trial court’s burden was substantially lessened, as the photographs failed to exhibit elements of gruesomeness. Compare to McNeal v. State, 551 So.2d 151 (Miss.1989) (solitary instance of photographs being held prejudicial involving a close-up photograph of a partly decomposed, maggot-infested skull). “Photographs are considered to have evi-dentiary value in the following instances: (1) aid in describing the circumstances of the killing; (2) describe the location of the body and cause of death; (3) supplement or [clarify] witness testimony.” McIntosh v. State, 917 So.2d 78, 84 (Miss.2005) (quoting Spann v. State, 771 So.2d 883, 895 (Miss.2000)).

¶ 26. The circuit court applied the test of Mississippi Rule of Evidence 403 to each of the photographs and determined that the probative value was not substantially outweighed by the prejudicial effect. The circuit court also noted a meaningful evi-dentiary purpose and probative value of each specific photograph. Therefore, this Court finds that the circuit court did not abuse its discretion in their admission. See Noe, 616 So.2d at 303. Accordingly, this issue is without merit.

III. Whether the circuit court erred in refusing to give a lesser-offense instruction.

¶ 27. Proposed Instruction D-2 provided that:

[t]he Court instructs the jury that an accessory after the fad is one who conceals, receives, aids or assists any person, knowing that such person has committed a felony, with intent to enable such person to escape or avoid arrest, trial, conviction or punishment, after the commission of such felony.
If you should find beyond a reasonable doubt that [Dampier] concealed, received, relieved, aided or assisted any person, knowing that such person had committed a felony, with the intent to enable such person to escape or avoid arrest, trial, conviction or punishment, after the commission of such felony, then you may return a verdict of guilty of accessory after the fact.

(Emphasis added). Following the State’s objection, the circuit court refused the instruction for lack of evidence to “support a verdict of the lesser included.” In so finding, the circuit court determined that:

all the way through [Dampier’s] statement not only did he maintain his innocence that he didn’t have anything to do with it, he maintained that he didn’t even know that it happened up until that time of that interview.... [I]f he takes that position, I don’t know what evidence there is in the record that would support the lesser included verdict.

¶ 28. Accessory after the fact is a separate and distinct crime from capital murder and, as such, the issue is whether Dampier is entitled to a “lesser-offense,” not a “lesser-included-offense,” instruction. See Byrom, 863 So.2d at 874. The evidentiary standard for lesser-offense instructions is the same as for lesser-included offense instructions. See Gangl v. State, 539 So.2d 132, 136-37 (Miss.1989). “To be entitled to a lesser-included offense instruction, [the defendant] must point to evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of the lesser included offense.” Ladnier v. State, 878 So.2d 926, 932 (Miss.2004) (citing Toliver v. State, 600 So.2d 186, 192 (Miss.1992)). See also Gangl, 539 So.2d at 136 (“lesser offense instructions should not be granted indiscriminately, and only where there is an evidentiary basis in the record.”). “One cannot be both a principal in the crime and an accessory after the fact.” Mangum v. State, 762 So.2d 337, 343 (Miss.2000) (quoting Hoops v. State, 681 So.2d 521, 534 (Miss.1996)) (emphasis added). The elements of accessory after the fact are:

(1) a completed felony has been committed; (2) the accused concealed, received, relieved, aided, or assisted a felon, knowing that such person had committed a felony; and (3) such assistance or aid was rendered with the intent to enable such felon to escape or avoid arrest, trial, conviction, or punishment after the commission of such felony.

Byrom, 863 So.2d at 874-75 (citing Miss. Code Ann. § 97-1-5 (Rev.2006)). To find Dampier guilty of capital murder, the jury did not need to find he was the shooter. See Randall v. State, 716 So.2d 584, 590 (Miss.1998). In fact, “[e]very person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such-” Miss.Code Ann. § 97-1-3 (Rev.2006) (emphasis added).

¶29. Lesser-offense instructions should be granted only where an evidentia-ry basis exists for them. See Gangl, 539 So.2d at 136-37. In the case sub judice, the evidence presented raises only the issue of Dampier’s role as a principal, not an accessory after the fact. According to Dampier’s own statement, he discussed going to Five Star with Jermaine on July 6, 2004. Moreover, he stated that he observed the gun on Jermaine on July 8, 2004, but believed Jermaine was not going to use it. He further stated that he became uncomfortable about the incident only later that evening, but remained unaware that any felony had been committed. By contrast, the State presented evidence, via the combination of Harth’s testimony and Dampier’s admission of blocking the Five Star gate, driving off the Five Star lot in the Jeep, and filling out the forged title applications, that Dampier was a principal in the crime. In either case, whether Dampier was ignorant, as he alleges, or was a principal by statute, an accessory-after-the-fact instruction lacked an eviden-tiary basis. Therefore, this Court concludes that this issue is without merit and the circuit court did not err in refusing Instruction D-2.

IV. Whether the circuit court erred in refusing Dampier’s Instruction D-4.

¶ 30. Proposed Instruction D-4 provided that:

[e]ach fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.

The State objected, arguing that “[Instruction] S-l[] requires us to prove each of those elements beyond a reasonable doubt. To the extent that this tries to do anything more than this, it is inappropriate.” The circuit court refused Instruction D-4 “because I believe it’s cumulative. But also relative to that last paragraph, I think that’s an incorrect statement of the law.” (Emphasis added).

¶ 31. Dampier asserts that Instruction D-4 “addresses inference testimony” and was denied, while Instruction S-5, effectively stating that “an inference can be drawn that [Dampier] participated in the capital murder because he may have been in possession of a stolen vehicle[,]” was granted. As such, Dampier argues that the circuit court committed reversible error by “allow[ing] the [S]tate to argue that possession of a stolen vehicle gives the inference, but ... not allowing] [Dampier] the opportunity to argue that all inferences have to be proven beyond a reasonable doubt.” The State responds that Dampier’s argument is without merit, as the substance of Instruction D-4 was fairly covered in other instructions, and Instruction S-5 was identical to the approved instruction in Hams v. State, 908 So.2d 868, 872 (Miss.Ct.App.2005).

¶ 32. This Court has stated that:

“[w]hen considering a challenge to a jury instruction on appeal, we do not review jury instructions in isolation; rather, we read them as a whole to determine if the jury was properly instructed” Burton ex rel. Bradford v. Barnett, 615 So.2d 580, 583 (Miss.1993). Similarly, this Court has stated that “[i]n determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Coleman v. State, 697 So.2d 777, 782 (Miss.1997) (quoting Collins v. State, 691 So.2d 918 (Miss.1997)). In other words, if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.

Milano v. State, 790 So.2d 179, 184 (Miss. 2001) (emphasis added). This Court finds that the reasonable-doubt standard was adequately addressed in Instruction S-l, which required each capital murder element to be proved beyond a reasonable doubt. As Instruction S-l “fairly announce[s] the law” on reasonable doubt and, therefore, “create[s] no injustice,” Coleman, 697 So.2d at 782, this Court concludes that the circuit court did not err in refusing Instruction D-4 as “cumulative.” Accordingly, this issue is without merit.

V. Whether the circuit court erred in granting State’s Instruction S-6 and refusing Dampier’s Instruction D-10.

¶ 33. Proposed Instruction D-10 provided that:

[t]he law permits evidence of certain persons who are termed expert. Experts may testify to their opinions derived from their knowledge of particular matters. However, the ultimate weight to be given to expert testimony is a question to be determined by you. The testimony of any expert, like that of any other witness, is to be received by you and given such weight only as you think it is properly entitled to receive. You are not bound by the opinion testimony of any witness, expert or otherwise.

In response, the State submitted Instruction S-6, which stated:

[y]ou will recall that individuals have testified as experts in this case. You should consider each expert opinion received in evidence in this case and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or that the opinion is outweighed by other evidence, then you may disregard the opinion entirely.

(Emphasis added). In support thereof, the State provided that “the instruction ... submitted as S-6 comes out of Jones v. State, 918 So.2d 1220[, 1228-29 (Miss. 2005) ]. I basically took that language out of the instruction that was approved in that case.” While objecting to Instruction S-6, counsel for Dampier acknowledged that “I don’t have the case that supports D-10 because there was a misunderstanding with me.” Thereafter, the circuit court granted Instruction S-6 and refused Instruction D-10.

¶ 34. On appeal, Dampier argues that the circuit court “abused its discretion in denying D-10 and substituting i[t] for S-6,” in that:

instead of allowing the jurors to simply weigh the testimony of each expert and give it weight they think it deserves, [Instruction S-6] instructs them in part that they may disregard expert testimony because of education and experience. This is crucial because this trial rested heavily on the testimony of the video experts. [Dampier’s] expert was a professional photographer and videogra-pher who had done consulting work that was mostly civil. The State’s expert worked for [the FBI], By being allowed to substitute the instructions, the State was able to suggest to the jury that Dampier’s expert’s testimony could be disregarded because of training and experience. []

The State responds that:

Dampier cites absolutely no case law, nor gives any rational explanation, to support a finding that [Ijnstruction S-6 was in any way erroneously given. Furthermore, when the trial court asked each side for authority to support their similar instructions regarding expert testimony, the State provided the trial court with citations, while defense counsel failed to provide authority to support his instruction based on some “misunderstanding with me.”

(Citation omitted).

¶ 35. This Court finds that Instruction S-6 “fairly announce[s] the law of the case” on weighing expert testimony and, therefore, “create[s] no injustice.” Coleman, 697 So.2d at 782. Therefore, we conclude that this issue is without merit and the circuit court did not err in refusing Instruction D-10 and granting Instruction S-6.

VI. Whether the circuit court committed reversible error in granting only one of Dampier’s proposed jury instructions.

¶ 36. The circuit court refused all of Dampier’s proposed instructions, except for Instruction D-l, regarding Dampier’s constitutional right not to testify. Dampier now contends that the circuit court erred in denying ten of the eleven jury instructions he offered, adding that Instructions D-4 and D-6 were among the refused instructions, despite being model jury instructions. In response, the State maintains that “this issue is so meritless as to be frivolous. If a defendant submits twenty jury instructions which are fairly covered elsewhere, without foundation in the evidence, or incorrect statements of law, then all twenty instructions will be properly refused.”

¶ 37. Preliminarily, this Court finds this issue procedurally barred as Dampier fails to cite any authority in support of his argument. See Glasper, 914 So.2d at 726. Procedural bar notwithstanding, this Court concludes that because the granted instructions “taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.” Mi-lano, 790 So.2d at 184. Accordingly, this issue is without merit.

VII. Whether the comments made by the State in closing argument were plain error.

¶ 38. In closing argument, counsel for the State made the following statements:

I suspect that sometime that afternoon whenever they came back from Magee, Clarissa, Jermaine, and Deandre to Tamesha’s apartment, and Clarissa and Jermaine went back south, I suspect if they had not done it before, that there was a conversation that “I’m going to say you were over there, and I’ll say I drove the Toyota over here and you weren’t even involved, Tamesha. I’ll just say I drove the Toyota over here, and he came and picked me up in the Mustang. That gets you off the scene and takes me off the scene while the man is being killed. I’ll say we don’t know nothing about it. Okay?” Is that the defense? Well, we have something to prove that that’s a lie.
Is there any possibility that they were giving Clarissa that Jeep to satisfy her to keep her from going to the police?
That paperwork that afternoon was nothing more than to try to get [Clarissa] to not go to the police. That’s what that was about, because she was pushing it.

Dampier now argues that these comments were:

without any foundation at all. It was completely made for the sole purpose of inflaming the sentiments of the jury. It had no basis in facts presented at trial. While [Dampier] did not make an objection at trial, the comments were so outrageous that the trial court should have objected on its own motion. Because the comment was so inflammatory, this case should be reversed.

The State responds that the comments:

of which Dampier complains amount to no more than the State properly arguing its theory of the case and making deductions and conclusions based on the evidence presented. The comments were in no way improper. Furthermore, they could not have prejudiced Dampier as they did not concern his obvious guilt. Rather, the statements relate to the involvement of Dampier’s confederates.

Alternatively, the State argues that if the prosecutor’s comments were improper, they did not prejudice Dampier, and the error was harmless.

¶ 39. “In general, the failure to object to the prosecution’s statements in closing argument constitutes a procedural bar.... However, in extreme cases, a failure to object to questions which were vio-lative of a constitutional right will not act as a procedural bar to consideration.” Ross v. State, 954 So.2d 968, 1001-1002 (Miss.2007) (citations omitted). Absent the application of a procedural bar, this Court has stated that:

[attorneys are allowed a wide latitude in arguing their eases to the jury. However, prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury. Hi-ter v. State, 660 So.2d 961, 966 (Miss. 1995). The standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created. Ormond v. State, 599 So.2d 951, 961 (Miss.1992).

Sheppard v. State, 111 So.2d 659, 661 (Miss.2000) (emphasis added). See also Brown v. State, 907 So.2d 336, 341 (Miss. 2005). In closing argument, that “wide latitude” extends “not only to the facts presented in evidence, but also to deduction and conclusions he may reasonably draw therefrom, and the application of the law to the facts.” Sanders v. State, 801 So.2d 694, 704 (Miss.2001) (quoting Wells v. State, 698 So.2d 497, 506 (Miss.1997)). However, “[a]rguing statements of fact which are not in evidence or necessarily inferable from facts in evidence is error when those statements are prejudicial.” Ross, 954 So.2d at 1002 (citations omitted).

¶ 40. Preliminarily, this Court concludes that Dampier’s failure to object to the now-disputed comments in closing argument creates a procedural bar, as those comments did not infringe upon Dampier’s constitutional rights. See Ross, 954 So.2d at 1001. Assuming arguendo that the procedural bar is inapplicable, this Court must determine (1) whether the individual comments constituted “improper argument” and (2) if so, whether that “improper argument” created “unjust prejudice” against Dampier. Sheppard, 111 So.2d at 661. Applying that standard, “[w]e find the substance of th[ese] argument[s] is not out-of-bounds for closing arguments; so there is no plain error to be found there either.” Minor v. State, 831 So.2d 1116, 1123 (Miss. 2002).

¶ 41. This Court finds that one reasonably could infer that the use of forged title applications to deter Clarissa from contacting the police could be argued as a logical deduction from the evidence presented. Immediately after asking Jermaine and Dampier if they stole the vehicles, Clarissa demanded “to see the paperwork.” Jermaine first told her that the paperwork was at McClendon’s apartment and then had Dampier fill out the blank title applications because Clarissa “knew his handwriting.” Given that testimony, this comment was well within the “wide latitude” extended to attorneys in closing argument. Id.

¶ 42. As to the comment regarding whether there was “any possibility that” Jermaine and Dampier were giving Clarissa the Jeep as incentive not to contact the police, this Court finds nothing improper. When Clarissa asked for the keys to the Corolla, Jermaine immediately gave her the keys to the Jeep. According to Harth’s testimony, however, Jermaine promised Dampier that “he would get a truck out of the deal.” The form of the question posed by the State in closing argument is only whether “any possibility” existed that Clarissa was given the Jeep in an attempt to encourage her inaction. Based upon the evidence presented, the argument could be made that one logically could deduce giving Clarissa the Jeep originally intended for Dampier was an attempt to dissuade her from contacting the police. Accordingly, this Court concludes that this comment was within the “wide latitude” extended to attorneys in closing argument.

¶ 43. Finally, this Court addresses the comment suggesting a possible conspiratorial conversation between Dampier and McClendon. Dr. Vorder Bruegge testified that if the green Mustang “came down [Highway 49] in that period from 11:00 to 12:00, then it was at ... 11:25:32.” Dr. Vorder Bruegge further testified that if the black Jeep followed the green Mustang, as Dampier claimed, then it did so ten seconds later at 11:25:42. If a trier of fact accepted that testimony, he or she could conclude that Jermaine did not pick up Dampier at McClendon’s apartment before returning to Five Star for the Jeep. That testimony suggests that Dampier remained at Five Star for the entire nineteen-minute time frame between the end of Charlotte’s conversation with McGuffee and the point at which the vehicles left the Five Star lot. As such, the Corolla necessarily would have been brought to McClen-don’s apartment by a third party. The circuit judge stated that “[i]t seems rather clear to me that [Dampier] and [Jermaine] were let out at the dealership and committed the crime that they did, and then got in the two vehicles and headed south.” Therefore, we conclude that the substance of the comment lies within an acceptable range of deductions and conclusions which reasonably may be drawn from the facts presented in evidence. See Sanders, 801 So.2d at 704. Such comments encourage deductive reasoning by a jury, as opposed to speculation. Thus, no plain error is present.

CONCLUSION

¶ 44. Accordingly, this Court affirms the final judgment and sentence of the Circuit Court of Rankin County as to Dampier.

¶ 45. CONVICTION OF CAPITAL MURDER AND SENTENCE TO SERVE A TERM OF LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON AND LAMAR, JJ„ CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

      . Dampier was sixteen years old at the time.

      . Charlotte further testified that the fact that the alarm did not stop indicated ''[t]hat somebody pulled up and blocked the gate.”

      . Rebecca Wood testified that she drove past Five Star "around 11:00 [a.m.]” Originally, Wood intended to go in "to make a payment,” but because "there was a medium blue-colored car parked in the driveway that was kind of cross-ways ... I didn't stop, I just kept going.” Wood also observed that "McGuffee was standing out front of a Mustang with the hood up with a black gentleman's back to 49.”

      . According to Investigator Greg Eklund of the Rankin County Sheriff's Office, Five Star is 1.8 miles, or a "three minute” drive, from Indian Creek Apartments.

      . In his July 23, 2004, statement, Dampier claimed that he informed McClendon that Jermaine had a gun, and that he felt uncomfortable about the situation, only later that evening.

      . According to Barrett, the surveillance video did not show “anything at Five Star. Just only north and southbound traffic that particular time of day.”

      . Robert Breithaupt, owner of Breithaupt Southern Images Photography and Video, was tendered by Dampier, and subsequently accepted, as an expert in video analysis. Breithaupt did not limit his conclusions to southbound vehicles.

      . By contrast, Breithaupt concluded that a vehicle consistent with the green Mustang was traveling southbound at 11:18 a.m. and northbound at 11:22 a.m.

      . By contrast, Holloway testified that he was home and informed Jermaine that ”[y]our car’s fan belt is broke....” When Holloway advised Jermaine that he should "come around back behind the house and put some water in it[,]” Jermaine told him, " ‘I don’t have time to put water in it.’ ” A young man was present and "driving the Jeep Cherokee.”

      . Additionally, McGuffee’s wallet was not located at the crime scene despite the fact that he was known always to carry a wallet and cash.

      . Clarissa also testified that Dampier denied stealing the vehicle.

      . By contrast, Dampier’s statements provide that Jermaine informed Clarissa that he stole the money ($8,500) from his employer, Quality Foods.

      . Eklund testified that Dampier’s fingerprints were found on the fan belt case, a wrench, and “a tool that was used to ... try or attempt to put the belt on.”

      .Clarissa testified that "I remember seeing that Mustang there, and I don’t remember seeing the Jeep there, but before Jermaine had looked at that Mustang and we couldn't afford what Mr. McGuffee was asking.”

      . A DNA match of McGuffee’s blood was later found on a pair of Nike Air Jordans seized from Jermaine’s apartment.

      . Jermaine pleaded guilty in October 2005 and is presently serving a life sentence. Based upon Dr. Vorder Bruegge’s report, an arrest warrant was issued for McClendon, and she also was charged with capital murder.

      . At trial, the State decided to go forward on the capital murder charge only and did not seek the death penalty due to "the fact that [Dampier] was 16 at the time of the offense.”

      . Following a conviction for grand larceny and drug possession.

      . According to Harth, he did not strike a deal in giving information to police. He claimed that after completion of his sentence in Mississippi, he returned to jail in his home state of Tennessee, as suspended time was revoked on his prior felony convictions for habitual driving without a valid license.

      . Initially, there were four African-Americans among fifty-three members prior to individuals being excused.

      . Regarding the photographs composing State’s Exhibits 50 through 57, the circuit court found that the probative value was not substantially outweighed by the prejudicial ef-feet.

      .Instruction S-l states:
      [Dampier] has been charged by indictment with the felony crime of capital murder. If you find from the evidence in this case beyond a reasonable doubt that [Dampier], on or about July 8, 2004, in Rankin County, Mississippi, did willfully, unlawfully, and feloniously, with deliberate design and of his malice aforethought, then and there, kill and murder Harry McGuffee, Jr., a human being, by shooting him in the head, when engaged in the commission of a robbery, then you shall find [Dampier] guilty as charged.

        If the prosecution has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find [Dam-pier] not guilty of capital murder.

      (Emphasis added).

      . Instruction S-5 stated "[t]he Court instructs the jury that the possession of property recently stolen is a circumstance which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt.”

      . This Court does not address the State's erroneous argument that the issue is procedurally barred by virtue of the fact that Instruction D-4 is not included in the Clerk’s Papers. That instruction is contained within the record in Court Exhibit I.

      . This Court adds that Instruction S-5 "fairly announces the law[,]” Coleman, 697 So.2d at 782, and was properly granted by the circuit court. See Harris, 908 So.2d at 872.

      . This Court finds Dampier’s argument regarding expert stipulations to be procedurally barred as he failed to request an appropriate instruction thereon. See Towner v. State, Jib So.2d 251, 255 (Miss.Ct.App.1998) (citing Ballenger v. State, 667 So.2d 1242, 1252 (Miss. 1995)).

      . This Court does not address the State’s erroneous argument that this issue is procedurally barred by virtue of the fact that Instruction D-10 is not included in the record. That instruction is contained within the record in Court Exhibit 1.

      . Instruction S-6 is identical to the granted instruction in Jones. See Jones, 918 So.2d at 1228-29.

      . This Court does not address the State’s erroneous argument that this issue is procedurally barred by virtue of the fact that Dam-pier's instructions are not included in the record. Those instructions are contained in Court Exhibit 1.

      . An arrest warrant was issued for McClen-don, and she was charged with capital murder.

      . Furthermore, this Court notes that Jury Instruction No. 11 guided the jury in assessing the closing arguments, stating:
      [t]hey should not intentionally try to mislead you. However, if their recollection of the evidence differs from what your recollection is, you must follow your own recollection. If any argument, statement or remark has no basis in the evidence, then you should disregard that argument, statement or remark.

      (Emphasis added).


text:
    Gregory BOONE v. STATE of Mississippi.
    No. 2006-KA-00081-SCT.
    Supreme Court of Mississippi.
    Jan. 24, 2008.

      John R. McNeal, Jr., Jackson, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SMITH, C.J., CARLSON and RANDOLPH, JJ.
   RANDOLPH, Justice, for the Court.

STATEMENT OF THE CASE

¶ 1. Gregory Boone, a/k/a Cameo Barnes, (“Boone”), was indicted by a grand jury in the Circuit Court of the First Judicial District of Hinds County for gratification of lust with a child under the age of sixteen in violation of Miss.Code Ann. Sect. 97-5-23 (Rev.2006). After trial on November 7-8, 2005, Boone was found guilty by a jury. Boone was sentenced to fifteen years, with ten suspended and five to serve, and two years probation.

¶ 2. Subsequent to the jury verdict and sentencing, Boone filed a Motion for Judgment Notwithstanding the Verdict, or in the Alternative, a New Trial, which the trial court denied. Boone timely filed this appeal and presents the following issues to the Court:

I. Whether the court erred as a matter of law in denying Boone’s Motion for Continuance based on the substitution of counsel.
II. Whether the court erred in failing to grant Boone’s Motion for Directed Verdict.
III. Whether the court erred in failing to grant Boone’s Motion for Judgment Notwithstanding the Verdict or in the Alternative a New Trial.
IV. Whether the verdict of the jury was against the overwhelming weight of the evidence.

FACTS

¶ 3. On the weekend of March 13th and 14th, 2004, AB, who was eleven years of age at the time, was at home, along with her sister, BB, age ten. The two girls were watched by a baby-sitter, as their mother did not get off work until 11:15 p.m. on March 13, 2004. When their mother arrived home around 11:30 p.m., AB and BB were in their brother’s bedroom, because it had a television, which was left on while the girls went to sleep.

¶ 4. Their mother testified she received a call from Boone that evening asking if he could spend the night at her home. She told Boone he could spend the night because he had no place to go, as his home had recently burned. Boone spent the night at the house “from time to time” as he and the girls’ mother were “intimate friends.” Soon after the call, Boone arrived at her home. They talked for a few minutes, and Boone made sexual advances toward her, which she rebuffed. Boone continued to make advances. She then fell asleep on the couch in the living room.

¶ 5. AB testified she and BB were in the bed with the television on. AB said she was awakened in the middle of the night because someone was rubbing her breasts and buttocks and was rubbing his penis against her legs, with his legs wrapped around her. AB testified she did not see the person who was rubbing and touching her.

¶ 6. After this person left the room, AB went into the living room where her mother was sleeping on the couch. She woke her mother and told her what happened. Her mother testified AB was “shaking like a leaf on a tree,” saying, “somebody is in my room ... I’m scared. Somebody is in my room. They’re touching me.... ” Her mother then turned on the lights and searched the bedroom, including the closet. She also verified that the bedroom window was locked. No intruder was found. She then went to her own bedroom and, seeing Boone asleep in her bed, then climbed into bed. She testified nothing “went on between” her and Boone that night. Boone was wrapped in a comforter. When she awoke the next morning, she discovered Boone was naked.

¶ 7. AB testified after her mother searched the bedroom that night, she went back in the bedroom and roused BB. AB relayed to her sister that someone had been in the room touching her. BB testified AB was acting “scared and terrified” and “was shaking” when she informed BB of what happened. AB testified that she then turned on the light and the sisters stayed up the entire night.

¶ 8. BB testified that she awoke during the night and saw Boone in the bedroom, but that she was not scared of him because she had known him for two or three years and “because that’s my mama’s friend and I didn’t think he was going to do anything.” BB stated she saw him when she “turned over and opened her eyes” and because “he walked across the TV. I could see because the light on the TV showed.” BB confirmed it was Boone, because “I could see him because his ears and his head shape” and his “ears are pointed at the top.”

¶ 9. Their mother testified that the next morning, the family was getting dressed for church and she asked the girls to again relay what happened the previous night. The girls told her again what happened, but they would not tell her who had touched AB, as Boone was still present in the family’s home. Their mother stated BB continued to say, “I know what I saw in the TV.” She confronted Boone and told him she knew her children would not lie to her, and that she “knew something happened.” Since he was the only male in the house, she said to Boone, “I know you did something.” She told Boone she was going to call the police. Boone maintained he did not touch AB.

¶ 10. After their mother told Boone she would call the police, he began to gather his things to leave, but Boone could not find his driver’s license. Their mother stated she found Boone’s license “a day or two later” on her bedroom floor and turned it in to the Jackson Police Department.

¶ 11. An officer from the Jackson Police Department took an initial statement from the mother regarding the incident. The officer testified after he met with the mother, he turned the case over to the sex crimes unit.

¶ 12. Boone called one witness in his defense, Lonnie McGill (“McGill”), a rap artist. McGill testified Boone wanted to get into the music business and that they were recording the weekend of March 13th and 14th, 2004. McGill testified he and Boone were in the recording studio from Saturday afternoon until 3:00 or 4:00 in the morning on Sunday. McGill testified Boone drove them both to McGill’s house where they spent the night. McGill testified Boone slept on his couch and they woke up Sunday morning and went back to the recording studio. McGill testified Boone was in his presence from Saturday afternoon until Sunday.

ANALYSIS

I.Whether the trial court erred as a matter of law in denying Boone’s Motion for Continuance based on the substitution of counsel.

¶ 13. “The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be reversed unless the decision results in manifest injustice.” Ross v. State, 954 So.2d 968, 1007 (Miss.2007) (citation omitted).

¶ 14. Boone was initially represented by a Hinds County assistant public defender in this matter, but he subsequently hired an attorney. Boone submits the trial court erred by denying his Motion for Continuance as he obtained this new counsel a few weeks prior to trial. The record contains an Agreed Order Allowing Counsel to Withdraw and Substituting Counsel for the Defendant filed one month prior to trial.

¶ 15. However, after thorough review of the clerk’s papers and transcript, this Court did not find a motion for continuance, written or oral, made by Boone and further did not find the denial of same. At the start of trial, the State asked to have one extra day to review witness testimony, but was denied. When asked if the Defense was prepared to go forward, counsel for Boone responded, “yes.”

¶ 16. “We have on many occasions held that we must decide each case by the facts shown in the record, not assertions in the brief, however sincere counsel may be in those assertions. Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them.” Barnwell v. State, 702 So.2d 132, 1997 Miss. LEXIS 495, *7-8 (Miss. October 9, 1997).

¶ 17. There is no evidence in the record of a motion for continuance. Therefore, this issue has no merit.

II. Whether the court erred in failing to grant Boone’s Motion for Directed Verdict.

III. Whether the court erred in failing to grant Boone’s Motion for Judgment Notwithstanding the Verdict or in the Alternative a New Trial.

¶ 18. The aforementioned issues presented by Boone have been combined, as their standards of review are overlapping.

A motion for a directed verdict and a motion for a judgment notwithstanding the verdict challenge the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (Miss.2005). When reviewing a case for sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The evidence must show “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). If, keeping in mind the reasonable-doubt standard, “reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

A motion for a new trial, on the other hand, challenges the weight of the evidence. Id. at 844. We will disturb a jury verdict only when “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). This Court acts as a “thirteenth juror” and views the evidence in the light most favorable to the verdict.... Id. (citing Herring, 691 So.2d at 957).

Brown v. State, 970 So.2d 710, 712-713 (Miss.2007).

¶ 19. Boone asserts the trial court erred in denying his Motion for Directed Verdict made at the close of the State’s case-in-chief, and that it further erred in denying his Motion for Directed Verdict, and his Motion for Judgment Notwithstanding the Verdict or in the Alternative, Motion for new Trial. Boone claims the evidence was confusing and contradictory, and that the State failed to make a prima facie case for gratification of lust. However, Boone provides no argument as to how the evidence failed to be sufficient to prove the offense of gratification of lust. In his brief, Boone only states, “the evidence, at best, was confusing and contradictory and in no way rose to the level of reasonable doubt.”

¶20. While Boone did in fact present an alibi witness, review of the testimony by this witness and the witnesses provided by the State does not show that the evidence “so considered [was] such that reasonable and fair-minded jurors could only find the accused not guilty.” Bell v. State, 963 So.2d 1124, 1129 (Miss.2007). Further, the evidence presented by the State was such that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush, 895 So.2d at 843. Therefore, the trial court did not err in denying Boone’s Motion for Directed Verdict or his Motion for Judgment Notwithstanding the Verdict, or in the Alternative Motion for New Trial.

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

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 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 this Court disturb it on appeal.

Herring v. State, 691 So.2d 948, 957 (Miss. 1997) (internal citations omitted).

¶ 21. As stated supra, Boone presented McGill as an alibi witness in order to show he was not present in AB’s home when the incident occurred. However, the State presented conflicting testimony from AB, BB and their mother.

¶ 22. The jury was presented with testimony from both sides and rendered its decision accordingly.

Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject, the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into findings of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augmented by the composite reasoning of twelve individuals sworn to return a true verdict. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution.

Givens v. State, 967 So.2d 1, 7 (Miss.2007) (citing Jones v. State, 920 So.2d 465, 472-73 (Miss.2006)).

¶ 23. Based on the testimony presented, the Court finds that the “verdict is [not] so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Herring, 691 So.2d at 957 (emphasis added).

CONCLUSION

¶ 24. Issue I has no merit, as there was no Motion for Continuance, whether written or verbal. Regarding Issues II, III and IV, the State presented evidence which would allow reasonable and fair-minded jurors to reach the verdict rendered in the case sub judice. The verdict of the trial court is therefore affirmed.

¶ 25. CONVICTION OF GRATIFICATION OF LUST AND SENTENCE OF FIFTEEN (15) YEARS, TEN (10) YEARS SUSPENDED, FIVE (5) YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS SUPERVISED PROBATION AND TWO (2) YEARS POST RELEASE SUPERVISION, AFFIRMED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, GRAVES, DICKINSON AND LAMAR, JJ., CONCUR.

      . Alias initials are used as the victim and her sister were minors at the time of the crime and at the time of trial.

      . He was not at home this weekend.

      . Miss.Code Ann. Sect. 97-5-23(1) (Rev.2006) states: (1) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child's consent, or a mentally defective, mentally incapacitated or physically helpless person as defined in Section 97-3-97, shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court.