author: STEWART, J. '

text:
    STATE of Louisiana, Appellee v. Ryan D. RUSSELL, Sr., Appellant.
    No. 42,479-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2007.

      Louisiana Appellate Project by Annette F. Roach, Lake Charles, Ryan D. Russell, Sr., for Appellant.
    William R. Jones, District Attorney, Robert E. Bethard, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and PEATROSS, JJ.
   STEWART, J. '

hThe defendant, Ryan Russell, Sr. (“Russell”), was convicted of manslaughter and was sentenced to 40 years at hard labor. The defendant now appeals. Finding no merit in his claims, we affirm the defendant’s conviction and sentence.

FACTS

Most of the material facts are uncontro-verted. On August 21, 2004, the defendant shot his stepfather, John Shoebroek, twice in the head after the two men had a heated argument. The defendant and his son, Ryan, Jr. (then age 8) had been living with Shoebroek and Russell’s mother for several months prior to the shooting. Russell’s daughter, Halie (then age 6), had been living with his mother her entire life.

The events giving rise to the shooting began a few months earlier when Russell became suspicious that Shoebroek may have engaged in inappropriate behavior with Halie. Notwithstanding Shoebroek’s and Halie’s denial that anything inappropriate had occurred, Russell’s suspicions festered and ultimately led to defendant’s final confrontation with Shoebroek on August 21, 2004. On that day, Russell was watching a movie with his two children inside the home when he decided to again confront Shoebroek about his concerns. Shoebroek was outside the home near the shed apparently doing some welding work. The conversation between Russell and Shoebroek quickly escalated. Russell grabbed a .22 caliber semi-automatic rifle and shot Shoebroek once above the ear and once in the middle of the forehead. Russell claims he shot Shoebroek in | aself-defense because Shoebroek was approaching him with a machete. There were no other witnesses to the shooting.

Russell admitted that he lied to his mother, Rhonda Shoebroek, when she later asked the whereabouts of her husband. As the week passed, Ms. Shoebroek became increasingly concerned and on August 30, 2004, she went to the police to file a report. When police searched the Shoe-broek property (with Rhonda’s consent), they arrested Russell on an unrelated outstanding warrant. The next day, Shoe-broek’s body was found buried in a shallow grave in the woods near the home.

While in custody, Russell eventually waived his Miranda rights and gave both a verbal and written confession to police. He admitted killing Shoebroek, burying Shoebroek’s body, and destroying much of the evidence.

After Shoebroek’s body was unearthed, it was taken to Forensic Pathologists, Inc. in Shreveport, where an autopsy was conducted on September 2, 2004 by Caddo Parish Coroner, Dr. George McCormick, with the assistance of lab director Lisa Hayes. Dr. McCormick prepared and signed a coroner’s report confirming that Shoebroek died of two gunshot wounds to the head. Dr. McCormick died in September 2005, prior to the trial in this matter.

The defendant was charged with second degree murder. A jury trial was held October 2-4, 2006. Chief Deputy Tracy Scott of the Red River Sheriffs Office testified that he investigated the crime scene and took the defendant’s statements while he was in custody. Chief Deputy Scott read | sboth his report on the defendant’s oral confession as well as the written statement given by Russell, who also testified at trial.

The defendant admitted dragging Shoe-broek’s body approximately 390, feet from the area where the shooting was considered to have occurred and burying the body in a shallow grave. The grave was approximately three feet deep. Russell camouflaged the gravesite with dirt and leaves to make it appear consistent with its natural surroundings. At the site of the alleged confrontation, Scott'testified that there was no physical evidence of any struggle between the defendant and Shoe-broek. Russell admitted that he destroyed Shoebroek’s wallet and burned Shoe-broek’s shoes and cell phone after the killing. Russell also testified that he put the machete back in the shed and vacuumed the shell casings to hide evidence of the shooting. Chief Deputy Scott testified that a machete was found in the shed, but police were unable to collect any fingerprints from it because the material it was constructed with was not conducive to holding fingerprints.

Russell testified that he shot Shoebroek in self-defense. He identified several purported threats that Shoebroek previously directed toward others, but it was undisputed that no threats were ever directed toward Russell or his children. Russell also admitted that Shoebroek never hit him. Regarding the events of August 21, 2004, he admitted at trial that he had been drinking that day and that he drank five or six beers before his confrontation with Shoebroek. Lastly, Russell testified that when Shoebroek allegedly approached him with a machete, defendant grabbed the rifle and pressed the end of the rifle barrel against Shoebroek’s forehead to |4“push him back” and that the subsequent two gunshots were a “sudden reaction.”

The parties stipulated at trial that Shoe-broek was shot twice in the head and that he died of these gunshot wounds. The state also introduced Dr. McCormick’s coroner’s report into evidence over defendant’s objections made in both pretrial motions and at trial. The trial court held a hearing outside the presence of the jury on October 2, 2006, to determine whether the report should be excluded. After hearing testimony from Lisa Hayes, Dr. McCormick’s lab director, the trial court allowed the report:

Lisa Hayes said she remembered this case because the body was buried and badly decomposed. She said that Dr. McCormick supervised the details of the autopsy of the victim in this case. Her testimony was very convincing with regard to this case. The problem with the testimony of Lisa Hayes is that she had inconsistencies with regard to many required procedures. She admitted that many cases were done without proper supervision of Dr. McCormick. The procedures which were used by Dr. McCormick with regard to autopsies is very disturbing to this Court. Although the testimony of Lisa Hayes is not credible on numerous details, this Court can not [sic ] say anything was done wrong which could affect the outcome of this particular autopsy.
This Court has given great consideration to the decision reached in this ruling, but based on the testimony and evidence, the defendant’s motion is denied. The autopsy of Dr. McCormick is allowed into evidence.

Only portions of Dr. McCormick’s report were read to the jury by the state’s expert forensic pathologist, Dr. Frank Peretti. Specifically, Dr. Peretti gave his opinion as to Shoebroek’s death and cause of death based on his review of Dr. McCormick’s autopsy report and photographs of the bullet wounds. Defendant’s counsel had the opportunity to fully cross-examine Dr. Per-etti as to the bases of his opinions. Dr. Peretti testified that [¿the forehead wound was a tight “contact” wound, meaning that the gun barrel had been “firmly against” the victim’s head when the trigger was pulled. Dr. Peretti testified that the other gunshot wound was fired from a distance of at least two feet away.

Following trial, the jury convicted the defendant of the responsive verdict of manslaughter. On December 20, 2006, the trial court sentenced defendant to 40 years in prison at hard labor, with credit for time served. ■ The trial court denied defendant’s motions for post verdict judgment of acquittal and reconsideration of sentence. This appeal follows.

DISCUSSION

Motion for Post Verdict Judgment of Acquittal

The defendant argues that his actions in killing John Shoebroek were justified because he was in fear of receiving great bodily harm or possibly death if he did not stop the “machete-wielding” Shoebroek. Russell further contends that the state failed to meet its burden that his actions were not justified.

The state argues that the evidence supports the jury’s verdict of manslaughter and that the evidence demonstrates that the defendant’s actions were not justified.

When sufficiency of the evidence and one or more trial errors are raised as issues on appeal, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is because the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970; 67 L.Ed.2d 30 (1981), if a rational | (¡trier of fact, reviewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

La. R.S. 14:31 defines manslaughter, in pertinent part, as follows:

A. Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed;

On August 21, 2004, La. R.S. 14:20 provided, in pertinent part:

A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger |7to his own life or person if he attempted to prevent the felony without the killing.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight, not the sufficiency, of the evidence. State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, units denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, Allen v. Louisiana, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State v. Johnson, 41,428 (La.App. 2d Cir.9/27/06), 940 So.2d 711; State v. Garner, 39,731 (La.App. 2d Cir.11/17/05), 913 So.2d 874, writ denied, 2005-2567 (La.5/26/06), 930 So.2d 19. Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary include the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of the assailant’s bad character. State v. Spivey, 38,243 (La.App. 2d Cir.5/12/04), 874 So.2d 352; State v. Hardeman, 467 So.2d 1163 (La.App. 2d Cir.1985). Although there is no [^unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726 (La.1982); State v. Johnson, supra.

In this case, the defendant was found guilty of manslaughter, a lesser included offense of second degree murder. La. C. Cr. P. art. 814(A)(3). The defendant testified that he grabbed a loaded rifle, chambered it, pressed the end of the rifle’s barrel firmly against Shoebroek’s forehead, and shot Shoebroek two times in the head, inflicting fatal wounds, during a heated argument. The record demonstrates that there was sufficient evidence to support the defendant’s conviction for manslaughter, unless the state failed to prove, beyond a reasonable doubt, that the homicide was not committed in self-defense.

After reviewing the record in its entirety, a rational fact-finder could have found, beyond a reasonable doubt, that there was no reasonable hypothesis that the defendant acted in self-defense based on the following facts:

• The defendant admitted that he drank five or six beers prior to the purported confrontation.
• The defendant testified at trial that he initiated the August 21, 2004, confrontation with Shoebroek.
• The testimony reveals that defendant believed Shoebroek had previously engaged in inappropriate behavior with defendant’s daughter, Halie. A rationale juror could reasonably conclude that defendant had motive for the murder and did not act in self-defense.
• Russell’s story at trial that he allowed a “machete-wielding” Shoebroek to come within arms-length (close enough for defendant to [ flbe able to place the end of the rifle barrel firmly against Shoebroek’s forehead for the first shot) is simply not logical.
• Russell’s story that he shot Shoe-broek in rapid succession is also not corroborated by Dr. Peretti’s testimony concerning the nature of the actual gunshot wounds. Based on his un-controverted expert opinion, one gunshot occurred with the gun against the victim’s head and the other gunshot was fired at a distance of at least two feet. The jury could reasonably conclude, based on the forensic evidence as well as defendant’s illogical story, that the first shot was the shot fired from a distance, inflicting the wound above the victim’s ear, and that the final shot, the “contact” wound to the forehead, was done in execution style.
• The state presented testimony that there were no signs of a physical struggle at the site of the alleged confrontation and shooting.
• The defendant admitted that for over a week he lied to both his mother and police about Shoebroek’s disappearance. Fabrication is evidence of consciousness of guilt, not self-defense. State v. King, 41,084 (La.App. 2d Cir.6/30/06), 935 So.2d 815, writ denied, 2006-1803 (La.2/16/07), 949 So.2d 411.
• The state presented much evidence of concealment (e.g., camouflaging grave, removing physical items, purposeful destruction of evidence, sanitizing crime scene, etc.), concealment which defendant admitted. Such evidence tends to prove guilty knowledge and cuts against a claim of self-defense. State v. King, supra; State v. Hudson, 33,357 (La.App. 2d Cir.5/10/00), 760 So.2d 591.
• Russell’s version of the killing at trial was contradictory in significant respects to his prior statements to police. His first version to police was that he fired both gunshots immediately after Shoebroek pulled out the machete from behind a metal table in the shed. At trial, the defendant testified that he did not shoot Shoebroek until the rifle barrel was pressed against Shoebroek’s forehead. Russell’s versions also differed as to the time he moved the body and the number of times he moved the body.

In short, the jury did not believe defendant’s version of the events. Due to the varied versions of what happened, the jury was justified in discounting any and all of defendant’s self-serving testimony concerning his claim of self-defense. Contrary to the defendant’s contention, the jury rationally could have found that the evidence presented, including the | innature of the victim’s wounds, the crime scene and his own implausible statements about the killing, established beyond a reasonable doubt that the murder was not perpetrated in self-defense.

This assignment of error lacks merit.

Unconstitutionality of La.C.Cr.P. art. 105

The defendant asserts that La. C. Cr. P. art. 105 is unconstitutional to the extent it provides a hearsay exception for the admissibility of coroners’ reports and the process verbal. He argues that the trial court erred in admitting Dr. McCormick’s report concerning the autopsy of John Shoebroek because it violated his constitutional right to confrontation and it was not proven to be trustworthy. Defendant also argues that the trial court erred by permitting Dr. Frank Peretti to give his expert opinion when such opinion was based solely on his review of the challenged coroner’s report and photos.

The state contends that defendant admitted that he shot and killed Shoebroek and thus it is illogical for defendant to challenge the introduction of the report that describes the death and cause of death. The state argues that a coroner’s report is admissible under La. C. Cr. P. art. 105 as competent evidence of the death and cause of death. The state further asserts that an expert witness may testify and use the coroner’s report in arriving at his conclusion regarding the victim’s death and cause thereof despite the fact the expert did not perform the autopsy.

As an initial matter, statutes are presumed constitutional, and any doubt is to be resolved in the statute’s favor. State v. Cunningham, 2004 200 (La.6/13/05), 903 So.2d 1110. The party challenging the constitutionality of a statute bears a heavy burden in proving that the statute is unconstitutional. Id.

The challenged statute herein, La. C. Cr. P. art. 105, provides:

In a case involving the apparent commission of a crime, the coroner shall make a written report of his investigation to the district attorney within ten days after the completion thereof. In homicide cases the coroner’s report shall certify the cause of death.
The report shall be in addition to the process verbal of an autopsy required by R.S. 33:1565. [Footnote omitted.]
A coroner’s report and a process verbal of an autopsy shall be competent evidence of death and the cause thereof, but not of any other fact.

The Sixth Amendment of the United States Constitution and Article I, § 16, of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to be confronted with the witnesses against him. The primary purpose behind this right is to secure for the defendant the opportunity for cross-examination. State v. Garner, 913 So.2d at 884; State v. Hotoph, 99-243 (La.App. 5th Cir.11/10/99), 750 So.2d 1036, writs denied, 1999-3477 & 2000-0150 (La.6/30/00), 765 So.2d 1062, 1066. Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Id.; State v. Hillard, 398 So.2d 1057 (La.1981).

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Sixth Amendment’s Confrontation Clause bars testimonial hearsay unless the witness is unavailable and the defendant had a prior opportunity to crossjexamine12 the witness. The U.S. Supreme Court expressly stated, however, that “not all hearsay implicates the Sixth Amendment’s core concerns.” Crawford v. Washington, 541 U.S. at 51, 124 S.Ct. at 1364. The Confrontation Clause applies to “witnesses” against the accused. The Court noted that its analysis of “testimony” excludes at least some hearsay exceptions, such as business records. Id., 541 U.S. at 56, 124 S.Ct. at 1354 (“[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial-for example, business records or statements in furtherance of a conspiracy.”).

By its express terms, La. C. Cr. P. art. 105 does not authorize admission of coroner’s reports to prove any facts other than death and cause of death. See, State v. Monroe, 345 So.2d 1185, 1187 (La.1977). Thus, the threshold question is whether a coroner’s report admitted only for the purpose of proving death and cause of death pursuant to Article 105 is testimonial in nature.

The proof of the death or cause of death by a coroner’s report is not proof of guilt or innocence. Generally, such evidence does not implicate the accused. It is rem ipsam evidence. State v. Holmes, 258 La. 221, 245 So.2d 707 (1971), cert. denied, Holmes v. Louisiana, 406 U.S. 909, 92 S.Ct. 1612, 31 L.Ed.2d 820 (1972). In State v. Anderson, 41,489 (La.App. 2d Cir.11/1/06), 942 So.2d 625, this court agreed with the rationale set forth in State v. Leonard, 2004-1609 (La.App. 1st Cir.4/27/05), 915 So.2d 829, reversed on other grounds, 2005-1382 (La.6/16/06), 932 So.2d 660, finding that the narrowly drawn La. C. Cr. P. art. 105 rendered the coroner’s | ^report as nontestimonial hearsay and thus admissible under Crawford, because it was admissible only for the purpose of proving death and cause of death. Courts in other states have found that coroner’s reports are generally nontesti-monial under Crawford. See, U.S. v. Feliz, 467 F.3d 227 (2nd Cir.2006), cert. denied, Erbo v. U.S., — U.S. -, 127 S.Ct. 1323, 167 L.Ed.2d 132 (2007); State v. Lackey, 280 Kan. 190, 120 P.3d 332 (2005), cert. denied, 547 U.S. 1056, 126 S.Ct. 1653, 164 L.Ed.2d 399 (2006) [overruled on other grounds, State v. Davis, 283 Kan. 569, 158 P.3d 317 (2007)]; People v. Durio, 7 Misc.3d 729, 794 N.Y.S.2d 863 (2005); Moreno Denoso v. State, 156 S.W.3d 166 (Tex.App.2005); Perkins v. State, 897 So.2d 457 (Ala.Crim.App.2004).

Because La. C. Cr. P. art. 105 is expressly limited to the admission and use of coroner’s reports only for nontestimonial purposes, the defendant has not met his burden in challenging the constitutionality of this article.

Admissibility of the Autopsy Report

The defendant contends that the trial court erred in admitting the autopsy report into evidence in this case as Ryan Russell was denied the right to cross-examine the maker of the report, it was not proven to be trustworthy, and the prosecution failed to show that the maker of the report had no incentive to mislead. He asserts that the trial court erred in denying the motion in limine.

A coroner is required to make a written report of his investigation to the district attorney in any case involving a homicide. La. C. Cr. P. art. 105. Pursuant to article 105, such a report is excepted from the hearsay rule and | umay be admitted in evidence as proof of death and the cause thereof. State v. Trahan, 576 So.2d 1, 9 (La.1990); State v. Monroe, supra; State v. Garner, supra; State v. Rhodes, 29,207 (La.App. 2d Cir.01/22/97), 688 So.2d 628, 639 (citing State v. Kelly, 375 So.2d 1344 (La.1979), writ denied, 97-0753 (La.9/26/97), 701 So.2d 980. Although it appears that Dr. McCormick performed the autopsy and prepared the report (with Lisa Hayes’ assistance), it would have been permissible for a coroner’s deputy to testify as to the victim’s death or the cause thereof, even where the testifying witness did not perform the autopsy or prepare the report. State v. Garner, supra; State v. Rhodes, supra.

The trial court admitted the coroner’s report pursuant to La. C. Cr. P. art. 105 only after Lisa Hayes, Dr. McCormick’s lab director who testified that she assisted during the entire Shoebroek autopsy, was questioned and cross-examined about the methods and procedures used during the Shoebroek autopsy. The record reveals that the information contained in the report was routine, descriptive, no-nanalytical, and thus, nontestimonial in nature. According to the autopsy report, John Shoebroek’s cause of death was “[m]ultiple (2) gunshot wounds of the head.” The narrative of findings recounted that the victim was “discovered in a shallow grave with two gunshot wounds of the head. Death was due to cerebral laceration.” The report then details the two gunshot wounds in the victim’s head. The report describes the location of the wounds, the injuries inflicted by each wound, whether the path of the bullets could be determined, and whether any fragments were recovered. The report does not contain any conclusion or | ^speculation concerning which gunshot was fired first. The only portion of the report that was read to the jury was read by Dr. Peretti in conjunction with Dr. Per-etti’s expert testimony as to Shoebroek’s death and cause of death, and more specifically, the nature of the gunshot wounds. Russell simply cannot articulate any legitimate basis under governing law for his argument that his confrontation clause rights were violated by the mere introduction of this particular coroner’s report.

Additionally, when the coroner’s report is admitted without the testimony of the coroner as to the authenticity of the report and when the report is cumulative evidence as to death and cause of death, there is no substantial violation of the defendant’s statutory or constitutional rights. State v. Vincent, 338 So.2d 1376 (La.1976) explains:

Neither the coroner’s testimony nor the certification of the coroner’s report was required to prove the victim’s death. That fact could be established by any competent evidence, and proof of death was made otherwise at this trial. Introduction of the coroner’s report and the copy of the process verbal of the autopsy was merely cumulative and added little to the proof of death. The defense objection is rendered even less valid by the fact that the trial judge permitted the jury to hear only those portions of the report which pertained to death, the cause of death and the time of death. La.Code Crim. Pro. art. 105; State v. Holmes, 258 La. 221, 245 So.2d 707 (1971).
* * * ⅜
Any error which occurred by the State’s failure to verify the report and the process verbal by certification, or by the testimony of the Coroner, was not a substantial violation of a statutory or constitutional right. La.Code Crim. Pro. art. 921.

State v. Vincent, supra, at 1385.

|1(iIn the case sub judice, the defendant admitted that he shot Shoe-broek twice in the head and that these gunshots killed Shoebroek. The defendant also admitted that one of the head wounds was a “contact” wound (ie., that the gun was placed firmly against Sho'ebroek’s head when it was fired). Any purported error by admitting the coroner’s report without the testimony of Dr. McCormick to authenticate the report was harmless because the coroner’s report was cumulative evidence of the victim’s uncontrovert-ed death and cause of death. See, State v. Anderson, supra.

Admissibility of Expert Testimony

The defendant asserts that the trial court erred in allowing the expert opinion of Dr. Peretti, based on the autopsy report signed by Dr. McCormick. He argues that the trial court erred in denying the motion in limine.

We find no merit in the defendant’s argument that it was improper for the trial court to allow Dr. Peretti to give his expert opinion based solely on his review of the coroner’s report and photos. This argument overlooks the fact that Dr. Peretti’s testimony was his own expert medical opinion as to Shoebroek’s death and cause thereof. As a qualified expert forensic pathologist, Dr. Peretti could testify, based on information obtained from others, as to his opinion on other issues in the case. La. C.E. art. 703; State v. Stacy, 27,136 (La.App. 2d Cir.12/22/95), 665 So.2d 390, 398, reversed on other grounds, 96-0221 (La.10/15/96), 680 So.2d 1175. The defendant fully cross-examined Dr. Peretti as to the bases of his expert opinions. The defendant has cited no authority that bars a medical expert from rendering his own expert opinion based on a review of medical records prepared by others.

A medical expert’s opinion is almost always based on some degree of hearsay, given the fact that numerous other medical personnel and records may be involved in the treatment of a patient. Indeed, this court has previously upheld the propriety of allowing expert forensic pathologist opinions based on autopsy reports prepared by others. See, State v. Garner, supra; State v. Stacy, supra. The issue is not one concerning admissibility, but rather the weight a fact finder gives to this expert testimony, dependent upon the professional’s qualifications and experience, and the facts upon which his opinion is based. State v. Garner, 913 So.2d at 885.

Therefore, the trial court did not commit reversible error in admitting the coroner’s report or by allowing Dr. Peretti’s expert opinions based solely on his review of the coroner’s report and photos.

Excessive Sentence

The defendant argues that the trial court failed to sufficiently consider the mitigating facts set forth in La. C. Cr. P. art. 894.1 in sentencing defendant. Defendant contends that his 40-year maximum sentence must be set aside, and a lesser sentence imposed, because it is excessive and is not supported by the record.

11sThe state argues that the trial court explicitly noted La. C. Cr. P. art. 894.1, and explained in detail why it was imposing the maximum sentence. The state asserts that defendant’s sentence was not excessive given the record evidence and that he should consider himself fortunate not to have been convicted for second degree murder.

The offense of manslaughter is punishable by imprisonment at hard labor for not more than 40 years. La. R.S. 14:31(B). This court’s case law on sentencing is well settled. The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered' are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the 119offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.

Second, a sentence violates La. Const, art. 1 § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in the light of the harm -done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992).

A trial court has .broad discretion to sentence. Absent a showing of manifest abuse of that discretion, this court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2d Cir.5/12/04), 873 So.2d 939.

As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Johnson, 38,415 (La.App. 2d Cir.7/14/04), 878 So.2d 869, writ denied, 2005-0589 (La.1/3/06), 920 So.2d 222; State v. Grissom, 29,718 (La.App. 2d Cir.8/20/97), 700 So.2d 541.

Prior to the December 20, 2006, sentencing hearing, defendant’s counsel filed a sentencing memorandum identifying several factors which he believed should be taken into account as mitigating factors pursuant to La. C. Cr. P. art. 894.1. Prior to imposing sentence, the trial court also held [2nan evidentiary hearing where the defense presented expert psychiatric testimony regarding defendant’s mental state.

As discussed earlier, the trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of La. C. Cr. P. art. 894.1. Moreover, there is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385. Although defendant may be correct that the trial court did not enumerate or specifically discuss by paragraph numbers the factors found in La. C. Cr. P. art. 894.1 during the sentencing hearing, the record clearly indicates that the trial court adequately considered those guidelines. In fact, the trial court explicitly stated that it considered defendant’s age, the pre-sentence investigation report (which revealed defendant’s prior adult criminal history, including a conviction for simple battery), defendant’s “Pre-Sentenc-ing Memorandum,” and the guidelines set forth in La. C. Cr. P. art. 894.1. The trial court then provided a detailed explanation for the maximum 40-year sentence:

In looking at [Article 894.1] in reference to this particular case, I think in this case to give less than [szc] jail time would deprecate the serious nature of the offense. In this particular case the offender knowingly created a risk of death or great bodily harm. The offender used actual violence in this case. The offense resulted in permanent injury, being death, and there was a dangerous weapon involved. In the defendant’s memorandum, Mr. Guillet, that you filed, you indicated a wide range of sentences. Personally, as you brought up in the pre-trial with [the assistant district attorney], I’ve seen cases where a ten year sentence in a manslaughter case may be excessive in certain circumstances. I purposefully delayed making any |g1 judgment on this particular case until after I heard the evidence. I told them in pre-trial I was still open in my mind until I heard the testimony and evidence presented in court. In this particular case, Mr. Russell, you took the life of John Shoebroek. I heard all the evidence presented at trial. Mr. Russell not only killed Mr. Shoebroek, afterwards he buried his body. It seems to me, Mr. Russell, after hearing all the evidence and listening to the testimony regarding the patterns of the bullets and the burying of the body, if there ever was a manslaughter case where the defendant should receive the maximum sentence it’s this particular case.

The remarks made by the trial court indicate that he found no mitigating circumstances. While the defendant may be correct that some of the factors mentioned by the trial court during sentencing are typical in manslaughter cases and thus would not be relevant as aggravating factors, the trial court noted other factors that justify the maximum sentence. Specifically, the judge found that defendant acted knowingly. Indeed, this reference to defendant’s state of mind, coupled with the judge’s remarks regarding the nature of the gunshot wounds (ie., two shots to the head, including a “contact” shot to the forehead) and defendant’s burial of the body, suggests that the trial court believed that defendant received great lenience from the jury by being convicted of the lesser crime of manslaughter instead of the crime charged, second degree murder. Second degree murder would have resulted in the mandatory sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence.

This court has upheld 40-year maximum sentences in manslaughter cases similar to, and even less egregious than, the instant case. In State v. Johnson, supra, a former sheriffs deputy was given 40 years for fatally | ^shooting his ex-girlfriend, once in the side and once in the head, even though he notified police and the victim’s family immediately after the shooting. There was no attempt to destroy evidence or conceal the crime. There was no record of prior criminal history.

In State v. Hudson, 33,357 (La.App. 2d Cir.5/10/00), 760 So.2d 591, a 25-year-old man was given 40 years for killing a male acquaintance who made a sexual overture to him. At trial, the defendant admitted killing the victim but claimed it was done in self-defense. The defendant attempted to conceal evidence of the crime. The defendant, however, expressed remorse at sentencing. He had no record of prior criminal history.

In State v. Hall, 36,335 (La.App. 2d Cir.9/18/02), 828 So.2d 120, the defendant’s 40-year maximum sentence was upheld for killing his girlfriend with whom he had lived for 15 years. The defendant claimed it was done in self-defense, but eventually pled guilty to manslaughter. His prior criminal history included convictions for battery, theft, and simple robbery.

Considering the record and the totality of the circumstances of this case, the sentence imposed is neither grossly disproportionate to the severity of the offense of conviction nor is it shocking to the sense of justice.

These assignments are therefore without merit.

ERROR PATENT

The defendant’s brief makes reference to purported error patent for failing to waive any sentencing delays. On December 11, 2006, defendant filed a motion for post verdict judgment of acquittal. On December 20, |2⅞2006, the date set for sentencing, the trial court orally denied defendant’s motion. The trial court then proceeded to hear testimony relating to sentencing. On that same date, defendant was sentenced. It does not appear from the record that defendant expressly-waived the required 24-hour waiting period pursuant to La. C. Cr. P. art. 873. At the conclusion of the hearing and immediately before imposing the sentence, however, the trial court asked the parties if they were “ready for sentencing.” Defendant’s counsel responded: ‘Tes, your honor.”

Without even addressing the issue of whether defense counsel’s statement constituted implied waiver of the 24-hour delay see, State v. Clark, 35,272 (La.App. 2d Cir.12/5/01), 803 So.2d 280 (defense counsel’s waiver of the 24-hour delay is sufficient), defendant does not argue that he was actually prejudiced by any failure to observe the waiting period. In State v. Brogdon, 426 So.2d 158 (La.1983), the Louisiana Supreme Court held that such a failure on the part of the trial court is harmless error where the defendant does not show actual prejudice. See also, State v. Wilson, 469 So.2d 1087 (La.App. 2d Cir.1985), writ denied, 475 So.2d 778 (La.1985). In the instant case, any purported failure to observe the La. C. Cr. P. art. 873 delay was harmless error.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . Harmless error analysis begins with the premise that the evidence is otherwise sufficient to sustain the conviction if viewed from the perspective of a rational factfinder and asks whether beyond a reasonable doubt the error could not have contributed to the verdict actually returned by the defendant’s jury. State v. Haddad, 1999-1272 (La.2/29/00), 767 So.2d 682, cert. denied, 531 U.S. 1070, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001). The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).


source: Caselaw Access Project

author: CHANDLER, J., for the Court.

license: Public Domain

text:
    Willie A. MAGEE a/k/a Jim Dandy, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-02768-COA.
    Court of Appeals of Mississippi.
    March 6, 2007.
    Rehearing Denied July 17, 2007.

      Charles E. Miller, McComb, attorney for appellant.
    Office of the Attorney General, by Scott Stuart, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J., for the Court.

¶ 1. After a six-day trial in November 2003 in the Circuit Court of Walthall County, Willie A. Magee was convicted of rape and of burglary of a dwelling. The court sentenced Magee to serve thirty years for rape and to serve twenty-five years for burglary, to run consecutively, as a habitual offender, in the custody of the Mississippi Department of Corrections. Magee appeals, arguing that (1) the trial court erred in failing to grant a directed verdict as to rape and burglary, (2) the trial court erred by allowing testimony on Magee’s prior bad acts, (3) the court should have disqualified the district attorney, (4) the court should have excused a juror who read a newspaper article related to the case, (5) the trial court should have dismissed Magee’s indictment, (6) Magee’s sentence amounts to a life sentence and constitutes cruel and unusual punishment in violation of the Eighth Amendment, and (7) the trial court erred by admitting evidence of a conviction that was over ten years old.

¶ 2. Finding no error, we affirm.

FACTS

¶3. E.P., age eighty-two, owned and operated a business behind her residence in Tylertown, Mississippi. E.P. testified that, in the early morning hours of October 15, 2002, she was asleep in bed when she was awakened by someone forcefully placing a piece of cloth over her face. E.P. had difficulty breathing and told the attacker that there was money in the dresser by the bed. The attacker stated, “I didn’t come after your money, I came after you.” The attacker then ripped E.P.’s pajama top off, pulled down her pajama pants, and performed oral sex on E.P. The attacker placed a knife to E.P.’s ear and told her that he would cut her throat if she was not quiet. Then, the attacker had sexual intercourse with E.P. When the attacker was finished, he began scraping the knife tip up and down E.P.’s chest and stomach while he threatened to kill her. The attacker stated that he was not going to let E.P. see him so that he would not be sent back to prison. Then, the attacker asked E.P. where her money was. E.P. told him it was in the dresser near her bed. The attacker took a bank bag filled with cash from the dresser and departed. When E.P. heard the back door slam, she removed the cloth from her face and called 911.

¶ 4. Tylertown Police Officer Aubrey Hill was dispatched to E.P.’s residence just before 2:00 a.m. When Officer Hill arrived, he observed that E.P. was distraught and that she had injuries including bruising around her eyes, cuts on her nose, lip, and left hand, and long red lines on her stomach. E.P. told Officer Hill that she had been raped and that she had recognized the attacker’s voice as that of Willie Magee. Magee occasionally performed yard work for E.P. and had been released from prison in early 2002. E.P. testified that the bank bag contained between one and two hundred dollars in cash collected from her business.

¶ 5. In E.P.’s bedroom, Investigators Truett Simmons and Tony Rushing with the Walthall County Sheriffs Department recovered several buttons from E.P.’s pajama top as well as a pillow sham that had been placed over E.P.’s head. These items were on the bed. There were stains resembling blood on the pillow sham and bedsheet and a damp spot on the bedsheet. The pillow sham had been taken from a spare bedroom across from E.P.’s bedroom.

¶ 6. Investigator Simmons testified that he determined the attacker had entered E.P.’s house through a door off the carport which led into an interior apartment that was vacant and separate from E.P.’s living area. The apartment was divided from E.P.’s living area by a door which E.P. testified was kept locked. Deputy Simmons testified that, when he arrived, the interior door was ajar but the locking mechanism was in the locked position. Deputy Simmons observed and photographed fresh tool marks on the door latch. Deputy Simmons testified that he concluded that the interior door was opened by force.

¶7. E.P. was transported to Walthall County General Hospital where Dr. Renie Jordan examined her and performed a rape kit. Dr. Jordan testified that E.P. suffered vaginal cuts, bruising, and trauma, but that, due to E.P.’s age, she could have received such injuries from consensual sex. However, Dr. Jordan’s impression from the totality of the information before him was that E.P. had been raped.

¶ 8. The police obtained blood samples from four suspects, including Magee, whose sample was obtained pursuant to a warrant. Vaginal swabs from the rape kit were sent to the Mississippi Crime Laboratory, where they tested positive for the presence of semen. Deedra Hughes, a forensic biologist at the Mississippi Crime Laboratory, obtained DNA from each blood sample and compared the DNA from the samples with the DNA from the semen taken from E.P. Hughes testified that Ma-gee’s DNA sample matched the DNA from the semen taken from E.P.

¶ 9. Magee testified. Magee denied having raped E.P. and testified that he did not know how E.P. had been injured. Magee, age forty-six, maintained that he had been involved in a long-term sexual relationship with E.P., which had begun in 1978. Ma-gee indicated that the relationship was kept secret due to fear of community backlash because the relationship was interracial. He stated that E.P. was “like family” and that he visited E.P.’s home on a regular basis. He testified that, on the evening of October 14, he visited E.P. at her home and they engaged in consensual sex. Afterward, Magee asked E.P. to borrow money and she lent him sixty-five dollars. Magee testified that he entered and exited E.P.’s house through the front door. Ma-gee stated that he walked home from E.P.’s house and arrived at his house at around 10:15 or 10:30 p.m. Magee testified that, at around midnight, he went to his neighbor Aaron Lee Washington’s house and asked Washington for a ride to Salem to visit a friend. Washington agreed, and the two drove to the friend’s home. Ma-gee stated that he and Washington left Salem in the morning. He stated that he did not buy any cocaine that night.

¶ 10. Washington testified that he went to sleep around midnight and was awakened some time later by a visit from Ma-gee. Washington was uncertain as to the time but stated that he was sleeping deeply when awakened. Magee asked Washington for a ride to Salem. According to Washington, Magee told him that he had found a purse and that he had money with which to purchase crack cocaine from Washington. Washington stated that he sold Magee sixty dollars’ worth of crack cocaine. Then, Washington drove Magee to the friend’s house in Salem. Washington testified that, over the next few hours, Magee bought more cocaine from Washington. Washington stated that they left the house at about 5:00 a.m. and drove to the truck stop in Tylertown. There, Ma-gee bought gas. Washington thought that Magee spent a total of approximately $130 over the course of the morning. Washington further testified that he was incarcerated with Magee shortly before Magee’s trial. At that time, Washington asked Ma-gee if he had done the crime charged, and Magee responded, “Well, man, I f-d her and I had took her purse.” On rebuttal, E.P. testified that she had never had a sexual relationship with Magee, that he had not been “like family” to her, and that she did not regularly invite him to her home but had hired him on an occasional basis to perform yard work.

¶ 11. The trial court instructed the jury that it could consider Magee’s alleged purchase of crack cocaine from Washington only in considering Magee’s motive, intent, preparation, plan, knowledge, or identity as the perpetrator of the charged crimes. The jury found Magee guilty of rape and burglary but did not impose a life sentence. The court sentenced Magee as a habitual offender to consecutive sentences of thirty years for rape and twenty-five years for burglary.

LAW AND ANALYSIS

I. THE EVIDENCE IS INSUFFICIENT TO SUPPORT A CONVICTION PURSUANT TO THE INDICTMENT AND RELEVANT LAW. THE LOWER COURT ERRED IN NOT GRANTING A DIRECTED VERDICT.

¶ 12. At the close of the State’s evidence, Magee moved for a directed verdict on the charges of rape and burglary. The trial court denied the motion, and Magee put on evidence in his defense. Magee argues that the denial.of a directed verdict was error because the evidence was insufficient to sustain a conviction.

¶ 13. A motion for a directed verdict or a JNOV or a request for a peremptory instruction attacks the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). When a defendant’s motion for a directed verdict is overruled at the conclusion of the State’s evidence, and the defendant then introduces evidence on his own behalf, the defendant has waived an appeal of the denial of a directed verdict. Holland v. State, 656 So.2d 1192, 1197 (Miss.1995). While Magee did not renew the motion for a directed verdict at the close of evidence or move for a JNOV, he did request a peremptory instruction, which was denied by the trial court. Magee’s request for a peremptory instruction preserved his challenge to the sufficiency of the evidence for appeal. Id.

¶ 14. When the sufficiency of the evidence is challenged on appeal, this Court reviews the trial court’s ruling as of the last occasion the sufficiency challenge was made. McClain, 625 So.2d at 778. In this case, that occasion was the trial court’s denial of Magee’s request for a peremptory instruction. In determining whether the evidence was sufficient to sustain a conviction, the relevant question is whether the evidence was such that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In considering this question, we view the .evidence in the light most favorable to the prosecution. Id. We must reverse and render if the facts and inferences “point in favor of the' defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.” Id. The evidence will be found sufficient if a reasonable jury, applying the beyond a reasonable doubt- standard, might reach different conclusions on each element of the offense. Id. (citing Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). The jury is charged with assessing the weight and credibility of the evidence and with resolving conflicts in the evidence. Latiker v. State, 918 So.2d 68, 73(¶ 12) (Miss.2005).

¶ 15. Magee was convicted of forcible, rape, which is codified .at Mississippi Code Annotated section 97-3-65(4) (Rev. 2006), and is defined as “havfing] forcible sexual intercourse with any person.” A person may be found guilty of rape on the uncorroborated word of the victim if that testimony is not discredited or contradicted by other credible evidence. Green v. State, 887 So.2d 840, 845-46(¶ 13) (Miss.Ct.App.2004). The victim’s physical and mental condition following the incident have been accepted as corroborating evidence, including the fact that the victim immediately reported the rape. Id.

¶ 16. At the trial, Magee admitted that he had sexual intercourse with E.P), but' asserted that the sex was consensual and not forcible. On appeal, he argues that there was insufficient evidence that the sex was forcible. Magee especially points to Dr. Jordan’s testimony that, due to E.P.’s age, her vaginal injuries could have resulted from rape or from consensual sex.

¶ 17. Viewing the evidence in the light most favorable tó the verdict, there was sufficient evidence to enable a reasonable juror to have found beyond a reasonable doubt that Magee had forcible sexual intercourse with E.P. As the finders of fact, the jury was entitled to accept the testimony of E.P. and to reject that of Magee. Moore v. State, 933 So.2d 910, 922(¶ 43) (Miss.2006). E.P. testified that the sex was forcible, not consensual. Her testimony fulfilled all of the essential elements required to establish a case of forcible rape. See Otis v. State, 418 So.2d 65, 67 (Miss.1982). And, E.P.’s testimony was corroborated by her physical and mental condition and the surrounding circumstances. According to E.P.’s testimony, she called the police immediately after Ma-gee’s departure. E.P. bore injuries consistent with her allegation of having been forcibly attacked. All of the law enforcement officers and hospital personnel involved observed that E.P.’s injuries were fresh and that she was upset and anxious. And, while Dr. Jordan was unable to discern whether E.P.’s vaginal injuries were indicative of forcible sexual intercourse, Dr. Jordan never testified that her injuries were inconsistent with rape. The import of Dr. Jordan’s testimony was a matter for the jury to weigh. Moreover, the physical evidence, such as the damp sheet and Dr. Jordan’s examination of E.P., tended to show that Magee’s sexual encounter with E.P. occurred in the early morning hours of October 15, as described by E.P., and not between 8:00 p.m. and 10:30 p.m. on October 14, as Magee testified.

¶ 18. Magee also argues that the evidence of burglary of a dwelling was insufficient. Magee contends that there was no evidence of a breaking because the police were unable to determine a forcible entry point. Considering the evidence in the light most favorable to the verdict, the evidence was sufficient to enable a reasonable jury to find the elements of breaking and entering beyond a reasonable doubt. There was evidence that Magee entered an outer door and then an interior door to access E.P.’s living area. E.P. testified that both the outer door and the interior door had been locked when she went to sleep that night. Investigator Simmons testified that he determined that Magee had entered the house through a closed door on the porch leading into the apartment. Investigator Simmons found a set of keys inside the apartment that he thought Magee had found outside and used to enter the apartment door. Investigator Simmons testified that the inner door leading from the apartment into E.P.’s living area bore signs of having been forced open. He testified that when police arrived the door was ajar, the locking mechanism was in the locked position, and the latch bore fresh scratch marks. Any effort, however slight, such as the turning of a door knob to enter, constitutes a breaking. Alford v. State, 656 So.2d 1186, 1190 (Miss.1995). Thus, the act of opening a closed, unlocked door is sufficient to establish the breaking element of burglary. Moore, 933 So.2d at 922(¶ 41). There was sufficient evidence supporting the element of breaking.

¶ 19. Magee further argues that there was no evidence that he entered E.P.’s house with the intent to commit a crime therein. Magee’s indictment charged Magee with breaking and entering E.P.’s dwelling house with the intent to steal. The evidence that Magee completed the underlying crime by taking a bag of money from EJP.’s dresser tended to show that he entered E.P.’s house with the intent to steal. Anderson v. State, 749 So.2d 283, 286(¶ 14) (Miss.Ct.App.1999). Though this point is not urged by Magee, we recognize that the testimony by E.P. that Magee stated, “I didn’t come after your money, I came after you,” tended to show that Magee broke and entered with the intent to commit rape. Whether the accused had a specific intent is a fact question for the jury. Duplantis v. State, 708 So.2d 1327, 1341(¶ 64) (Miss.1998). “Unless one expresses his intent, the only method by which intent may be proven is by showing the acts of the person involved at the time in question, and by showing the circumstances surrounding the incident.” Id. at 1342(¶ 65). Notwithstanding Ma-gee’s statement to E.P., the issue of Ma-gee’s specific intent was a jury question, and the evidence surrounding Magee’s theft of the money was sufficient to enable a reasonable jury to find that Magee harbored the intent to steal when he broke and entered the residence.

II. THE LOWER COURT ERRED BY NOT DISMISSING THE INDICTMENT OR GRANTING A MISTRIAL WHEN IT ALLOWED THE TESTIMONY OF PRIOR BAD ACTS OF THE ACCUSED STEALING A CHURCH AIR CONDITIONER.

¶20. Magee called Officer Glen Allen. During direct examination, Ma-gee’s counsel questioned Officer Allen about his prior statements about the investigation. The following ensued:

Q. So in that last hearing, you did not answer or that you did not inform, in the motion hearing, provide any of this information, is that correct?
A. The last hearing, if my memory serves me correctly, it was a motion on when was Mr. Magee arrested. The last motion hearing I was involved in.
Q. And that was a suppression hearing, is that right?
A. It was one of the very first ones about was he, on the charge of an air conditioner, church burglary or was he on the charge of the actual rape case.

¶21. On cross-examination, the prosecutor asked Officer Allen: “Counsel asked you, he asked you if the defendant was being, if he was being held on the theft of the church air conditioner or the rape charge.” Before Officer Allen answered, counsel for Magee objected on the ground that he had not asked Allen on direct examination whether Magee was being held on a theft charge or a rape charge. The court agreed and sustained the objection. . Magee moved for a mistrial. The trial court denied the motion, but instructed the jury to disregard the prosecutor’s question and asked the jury if it would disregard the last question. The jury responded with a unanimous show of hands.

¶ 22., On appeal, Magee argues that the trial court’s ruling violated Mississippi Rule of Evidence 404(b), which provides that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Magee did not object to the prosecutor’s question on Rule 404(b) grounds and thus this argument is procedurally barred. Rodgers v. State, 777 So.2d 673, 675-76(¶ 8) (Miss.Ct.App.2000).

¶ 23. Notwithstanding the procedural bar, this issue is without merit. Magee had already elicited from Officer Allen evidence that Magee had been charged with theft of an air conditioner. “It is axiomatic that a defendant cannot complain on appeal concerning evidence that he himself brought out at trial.” Hobson v. State, 730 So.2d 20, 25 (Miss.1998). Because Officer Allen never answered the State’s question about the charge, no additional evidence concerning the air conditioner theft charge was brought out by the State. As for any prejudice from the State’s question itself, the trial court instructed the jury to disregard the State’s question, and it is presumed that the jury follows the instructions of the trial court. Id. Magee has failed to show error.

III. THE COURT SHOULD HAVE GRANTED THE MOTION TO DISQUALIFY THE DISTRICT ATTORNEY.

¶ 24. The Walthall County district attorney was one of two prosecutors who participated in Magee’s trial. Prior to the trial, on July 7, 2003, Magee filed a motion to disqualify the district attorney on the ground that Magee’s counsel had initiated a civil rights lawsuit on behalf of another client against the district attorney in federal court. Magee asserts that the case was pending at the time of Magee’s trial, and argues that the district attorney should have been disqualified due to concern over any conduct which could erode public confidence in the judicial system.

¶ 25. Magee’s motion to disqualify the district attorney and the State’s response to his motion appear in the record. A pre-trial hearing occurred on August 1, 2003, during which Magee brought several of his motions to the attention of the trial court but did not raise the motion to disqualify the district attorney. Magee has not directed this Court to the trial court’s ruling on the motion. If Magee ever obtained a ruling on the motion from the lower court, the ruling is not apparent from the record on appeal. It is the mov-ant’s responsibility to obtain a ruling on a motion from the trial court, and the mov-ant’s failure to pursue a ruling on a motion constitutes a waiver. Byrom v. State, 863 So.2d 836, 851(¶ 27) (Miss.2003). By failing to pursue a ruling on the motion from the trial court, Magee abandoned the motion and waived this issue for appeal.

IV. THE TRIAL COURT ERRED BY NOT EXCUSING A JUROR WHO READ A NEWSPAPER ARTICLE RELATED TO THE CASE.

¶ 26. On the morning of the third day of trial, the court informed the jury that a newspaper article about the case had appeared in the Enterprise-Journal, a MeComb, Mississippi newspaper. The court noted that it had neglected to instruct the jury the previous day not to read any newspaper coverage of the case. One juror, Juror Wallace, admitted to having read the article, and Magee moved to dismiss the case. The court indicated that it would revisit the matter at the conclusion of cross-examination of a witness.

¶ 27. Later that day, out of the presence of the other jurors, the court instructed Juror Wallace not to discuss the article with the other jurors and allowed the prosecutor and Magee’s counsel to thoroughly question Juror Wallace about the article. Juror Wallace stated that he had skimmed part of the article and did not learn anything about the case that he had not already learned during the proceedings. Juror Wallace stated that he had read about the venire and the composition of the jury that was selected. Juror Wallace stated that he did not read anything about Magee or Magee’s defense. He also stated that the article had not helped him understand the case and that he could remain fair and impartial to both Magee and the State. After the questioning of Juror Wallace, Magee moved to have the article made a part of the record. Then, the trial proceeded.

¶ 28. On appeal, Magee argues that the trial court’s failure to excuse Juror Wallace constituted reversible error. The Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to a fair trial before an impartial jury. Earley v. State, 595 So.2d 430, 431 n. 1 (Miss.1992). “The- judicial determination of whether a juror is fair and impartial will not be set aside unless such determination is clearly wrong.” Smith v. State, 802 So.2d 82, 86(¶ 15) (Miss.2001).

¶ 29. Magee relies upon Earley in arguing that the trial court abused its discretion in failing to dismiss Juror Wallace. In Earley, the trial court, before adjourning the trial for the day, forgot to instruct the jury not to read anything about the case. Earley, 595 So.2d at 431. The next day an article about the case appeared on the front page of the newspaper. Id. While the first page of the article contained information to which the jury had been exposed during the trial, the second page of the article contained information about proceedings held outside the jury’s presence. Id. The trial court polled the jury about the article. Id. One juror had read only the article’s headline. Id. Three jurors admitted to having “seen,” “glanced at,” or “skimmed” the article. Id. These three jurors stated that they could be fair and impartial. Id. The court questioned all four jurors further and determined that only one juror had read the second page of the article. Id. The court excused that juror, and the other three were allowed to remain. Id.

¶ 30. Earley moved for a mistrial, which was denied by the trial court. Id. at 432. On appeal, the supreme court affirmed. Id. The court found that the court properly dismissed the juror who had read the second page of the article and that there was no showing that the other three jurors had been exposed to information they had not previously received during the trial. Id. As in Earley, in this case, the court’s inquiry revealed that Juror Wallace had not received any information from the article which he had not already received during the voir dire proceedings. Juror Wallace stated that he remained fair and impartial and would not discuss the article with the other jurors. The trial court’s failure to excuse Juror Wallace was not clearly wrong.

V. WHETHER MAGEE WAS INDICTED UNDER THE WRONG STATUTE.

¶ 31. Count Two of Magee’s indictment set out the essential elements of forcible rape as codified at Mississippi Code Annotated section 97-3-65(4)(a) (Rev.2006). However, the indictment erroneously cited to section 97-3-65(3), which contains the sentencing for statutory rape, rather than section 97-3-65(4)(a), which codifies the crime of forcible rape. For the first time on appeal, Magee argues that the indictment’s citation to the wrong statutory subsection mandates reversal.

¶ 32. This issue was decided adversely to Magee in Culp v. State, 933 So.2d 264, 277-78 (Miss.2005). Culp’s indictment charged him with violating subsection -97-3-64(3) but set out the essential elements of forcible rape. Id. at 277(¶ 40). Culp initially raised the error on appeal. Id. at 278(¶42). The supreme court observed that the purpose of an indictment is to afford the defendant with notice of the crime charged and the facts underlying the crime charged. Id. at 277(¶ 40). Citation to a specific statute is not required to afford adequate notice to the defendant. Id. At the trial, Culp had confronted the charges of forcible rape and not those of statutory rape. Id. at 277(¶41). Therefore, Culp had been adequately apprised of the charges against him and the' court treated the citation to the incorrect subsection as a typographical error that was a matter of form, not substance. Id. at 277-78 (¶¶ 40-42). Pursuant to Culp, this issue is without merit.

VI. THE COURT ERRED BY NOT DISMISSING THE INDICTMENT FOR FAILURE TO COMPLY WITH RULE 6.03.

¶33. ■ Magee was questioned at the police station the day after the rape. A warrant' for a blood sample from Magee was issued on October 16, 2002. Magee was indicted for rape and burglary on February 3, 2008. In a cursory argument, Magee contends that during the police questioning he was held in jail for forty-eight hours without an initial appearance in violation of Uniform Rule of Circuit and County Court 6.03. Magee alleges that during his time in jail he was questioned, required to give a DNA sample, and denied his right to counsel.

¶ 34. Rule 6.03 provides that persons in custody shall be taken without unnecessary delay and within forty-eight hours of arrest before a judicial officer or another authorized person for an initial appearance. At the initial appearance, the judicial officer or other authorized person shall, among other tasks, advise the accused of his rights, amend the formal charge if necessary, inform the defendant of the formal charge, and ascertain that probable cause existed for an arrest made without a warrant. URCCC 6.03. Even if an initial appearance occurred within forty-eight hours of arrest, “a defendant’s constitutional rights have been violated if he can show that the hearing was delayed for an impermissible purpose, such as ‘gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake.’ ” Wilson v. State, 923 So.2d 1039, 1042(¶ 10) (Miss.Ct.App.2005) (quoting County of Riverside v. McLaughlin, 500 U.S. 44, 66, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991)).

¶ 35. In Magee’s argument, he fails to cite to the record or explain how his argument is' supported by the record. The following is the evidence pertaining to Ma-gee’s arrest that the Court has located in the record. Officer Stacey Cotten testified in a proffer that when Magee was questioned about the rape and burglary Magee had been arrested and held on church burglary and possession of stolen property charges. There was a discussion between the court and counsel which indicated that the police questioned Magee about the rape and burglary while Magee was being held on other charges and that Magee was afforded a timely preliminary hearing on those charges. There is an order denying Magee’s motion to dismiss for lack of a timely initial appearance on the rape and burglary charges. The order does not provide further facts or explain why the motion was denied. Magee has provided in~ adequaté argument supported by citations to the record to establish a violation of the initial appearance rule.

VII. WHETHER THE SENTENCE WAS TANTAMOUNT TO A LIFE SENTENCE AND CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT AND IS DISPROPORTIONATE UNDER THE EIGHTH AMENDMENT.

¶ 36. Magee argues that his consecutive sentences of thirty years for rape and twenty-five years for burglary to be served as a habitual offender are grossly disproportionate to the crimes and constitute cruel and unusual punishment in violation of the Eighth Amendment. Sentencing is generally within the discretion of the trial judge. White v. State, 742 So.2d 1126, 1136(¶ 41) (Miss.1999). As a general rule, a sentence that does not exceed the statutory maximum for the crime will not be disturbed on appeal. Nichols v. State, 826 So.2d 1288, 1290(¶10) (Miss.2002). But, when a threshold comparison of the crime to the sentence leads to an inference of “gross disproportionality,” the reviewing court will conduct a proportionality analysis using the three factors from Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Hoops v. State, 681 So.2d 521, 538 (Miss.1996) (citing Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)). These factors include: (1) the gravity of the offense and the harshness of the penalty, (2) a comparison with the sentences imposed on other criminals in the same jurisdiction, and (3) a comparison with the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 291-92, 103 S.Ct. 3001.

¶ 37. Magee argues that his sentence was grossly disproportionate to his crimes. Magee also complains that, given his age at sentencing, his punishment amounted to a life sentence. The court sentenced Magee as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2000), which provides for a sentence of “the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.” For the rape conviction, the jury did not fix the penalty at life imprisonment, requiring the trial court to fix the penalty “at any term as the court, in its discretion, may determine.” Miss.Code Ann. § 97-3-65(4)(a) (Rev. 2006). The court imposed a thirty-year term. The court imposed a consecutive twenty-five year sentence, the maximum penalty for burglary of a dwelling. Miss. Code Ann. § 97-17-23 (Rev.2006). Thus, the trial court imposed sentences within the statutory limits for Magee’s crimes. When a series of sentences is imposed, the total of the sentences may exceed the defendant’s actuarial life expectancy. Erwin v. State, 557 So.2d 799, 803 (Miss.1990). We find that a threshold comparison of Magee’s sentence with his crimes does not raise an inference of gross disproportionality that would trigger the Solem proportionality analysis.

VIII. THE LOWER COURT ERRED BY ALLOWING THE STATE TO INTRODUCE EVIDENCE OF A CONVICTION THAT WAS OVER TEN YEARS OLD.

¶ 38. Magee’s sister, Betty Walker, testified on behalf of Magee. On direct examination, Walker stated that she had been close with Magee since childhood. She opined that Magee was a good, honest person who had never been violent and had never been in trouble with the law. The State sought to cross-examine Walker with evidence of Magee’s convictions in 1997 for conspiracy to distribute cocaine and in 1980 for possession of stolen property.

¶ 39. Pursuant to Mississippi Rule of Evidence 405, the trial court permitted the State, over Magee’s objection, to ask Walker whether she was aware of each conviction. Accordingly, the State asked Walker whether she was aware that Ma-gee had been convicted in 1980 of receiving stolen property; Walker said she had been unaware of that conviction. Walker admitted that she did know of Magee’s 1997 conviction for conspiracy to distribute cocaine. Later, Magee’s counsel elicited testimony from Magee concerning the 1980 conviction and the State put on rebuttal evidence.

¶ 40. On appeal, Magee argues that the 1980 conviction was inadmissible under Mississippi Rule of Evidence 609 because the conviction was over ten years old. The methods of proving character are governed by Mississippi Rule of Evidence 405. Rule 405(a) provides: “In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.” Pursuant to Mississippi Rule of Evidence 404(a)(1), the accused may offer evidence of his own pertinent character trait. If the accused opens the door by presenting evidence of his character as a good and law-abiding citizen, then the prosecution is entitled to “rebut the same.” M.R.E. 404(a)(1); Booker v. State, 745 So.2d 850, 853(¶ 8) (Miss.Ct.App.1999). A prior conviction is a specific act of conduct that is admissible to rebut the accused’s evidence that he is a peaceable, law-abiding citizen. Booker, 745 So.2d at 853(¶ 8). A prior conviction is admissible to rebut the accused’s evidence of his peaceable, law-abiding character even though the conviction would not be admissible for credibility impeachment under Rule 609. Id. at 853(¶ 7).

¶ 41. In this case, Magee’s counsel elicited testimony from Walker indicating that Magee was a peaceable, law-abiding citizen. The prosecution was entitled to rebut Walker’s testimony about Magee’s peaceful and law-abiding character with evidence of Magee’s 1980 conviction for possession of stolen property. The trial court’s admission of the conviction was not an abuse of discretion.

¶ 42. THE JUDGMENT OF THE CIRCUIT COURT OF WALTHALL COUNTY OF CONVICTION OF COUNT I OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE YEARS, AND COUNT II OF RAPE AND SENTENCE OF THIRTY YEARS, WITH SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND AS A HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WALT-HALL COUNTY.

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

      . We have changed the victim’s name to protect her privacy.


author: ISHEE, J., for the Court.

text:
    Johnny Larond PLUMMER, a/k/a Ron Plummer, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01885-COA.
    Court of Appeals of Mississippi.
    March 20, 2007.
    Rehearing Denied July 31, 2007.

      Johnny Larond Plummer, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. Johnny Larond Plummer pled guilty to statutory rape in the Circuit Court of Clarke County. Plummer was sentenced to serve twenty years, with ten years suspended and five years of post-release supervision, in the custody of the Mississippi Department of Corrections, and to pay court costs and lab fees, as well as a fíne in the amount of $10,000. Plummer’s pro se motion for post-conviction relief was dismissed by the circuit court. Aggrieved by the court’s decision, Plummer appeals. Finding no error, we affirm.

FACTS

¶2. On September 3, 2003, Plummer was indicted by a Clarke County grand jury for feloniously engaging in sexual intercourse with a female child under the age of fourteen on or about May 27, 2002. At the time the statutory rape occurred, Plummer was approximately forty years old.

¶ 3. James N. Potuk, Plummer’s appointed counsel, assisted Plummer in filling out a petition to enter a plea of guilty. In the petition, Plummer acknowledged that he was entering a blind plea to the crime of statutory rape, and that, if convicted, he could be sentenced from zero to thirty years and/or a fine in the amount of zero to $10,000. Plummer also acknowledged that he read and understood the constitutional rights he waived by pleading guilty and that he was entering a plea of guilty freely and voluntarily. Furthermore, Plummer acknowledged that his attorney was fully informed as to all of the facts and circumstances surrounding his case and that he did all that anyone could do to counsel and assist him.

¶4. The circuit court accepted Plum-mer’s guilty plea during a hearing held on December 16, 2003. He testified that he understood the crime with which he was charged, as well as any possible defenses, and that he could possibly receive a sentence from zero to thirty years and a fíne from zero to $10,000. Plummer further testified that he and his attorney reviewed his petition to enter a plea of guilty and that he understood the information contained in the petition. The judge then explained to Plummer that he possessed the following rights: (1) the right not to plead guilty; (2) the right to a speedy public trial by a jury; (3) the presumption of innocence; (4) the right to confront his accusers; (5) the right to testify in his own defense, if he chose to do so; and (6) the right to have legal representation throughout his trial and appeal. The judge further explained to Plummer that by entering a plea of guilty, he waived the aforementioned rights. Plummer responded that he understood. The judge also explained that he was not bound by any recommendation, and that he could sentence Plummer anywhere from the minimum to the maximum sentence. Plummer testified that no one forced him into pleading guilty. He also testified that his attorney went over his case .with him, and that he was satisfied with the advice and assistance of his attorney.

¶ 5. During the hearing, Plummer admitted that, on May 27, 2002, he had sexual intercourse with a female child under the age of fourteen, and that, as a result, he was the father of the child’s baby. Plum-mer testified that he had sexual intercourse with the child at a hotel in Meridian, which is located in Lauderdale County. Plummer admitted, however, that he had given a written statement to the police that he had sexual intercourse with the child while in his vehicle in Pachuta, Clarke County. Nonetheless, Plummer further stated that he picked the child up in Pachuta, and then drove to Lauderdale County before engaging in sexual intercourse. The court then asked Plummer whether he understood that he was charged with having sexual intercourse in Clarke County not in Lauderdale County, and whether he still wanted to plead guilty. Plummer replied that he still wanted to plead guilty.

¶ 6. On February 25, 2004, Plummer was sentenced to serve twenty years, with ten years suspended and five years of post-release supervision, in the custody of the Mississippi Department of Corrections. Plummer was also sentenced to pay court costs in the amount of $246.50, lab fees in the amount of $300, and a fine in the amount of $10,000. Plummer filed a pro se motion for post-conviction relief on November 3, 2004. The circuit court entered an order dismissing Plummer’s motion on June 14, 2005. Plummer appeals, asserting the following issues for this Court’s review: (1) whether the trial court had subject matter jurisdiction; (2) whether Plummer received ineffective assistance of counsel; (3) whether the trial court erred by improperly increasing Plummer’s fine from $10,000 to $10,546.50; and (4) whether the trial court erred in referring to Plummer as “Ron” during sentencing.

STANDARD OF REVIEW

¶ 7. When reviewing the denial of a motion for post-conviction relief, we will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Pace v. State, 770 So.2d 1052, 1053(¶4) (Miss.Ct.App.2000) (citing Terry v. State, 755 So.2d 41, 42(¶4) (Miss.Ct.App.1999)). Where questions of law are raised, however, the applicable standard of review is de novo. Id.

ISSUES AND ANALYSIS

I. Whether the trial court had subject matter jurisdiction.

¶ 8. Plummer asserts that the trial court lacked subject matter jurisdiction because the crime occurred in Lauderdale County rather than Clarke County. In addressing this issue, we first note that Plummer’s argument actually challenges the sufficiency of the State’s evidence of venue, rather than subject matter jurisdiction. Nevertheless, “[i]n criminal cases, venue is jurisdictional, must be proved, and may be raised for the first time on appeal.” McBride v. State 934 So.2d 1033, 1035(¶ 10) (Miss.Ct.App.2006) (citing Hensley v. State, 912 So.2d 1083, 1086(¶ 12) (Miss.Ct.App.2005)). “Where there is sufficient evidence to lead a reasonable trier of fact to conclude that part or all of the crime occurred in the county where the case is being tried, then evidence of venue is sufficient.” Id. (citing Hill v. State, 797 So.2d 914, 916(¶ 10) (Miss.2001)).

¶ 9. During the guilty plea hearing, Plummer stated that he was at a hotel in Meridian when he had sexual intercourse with the child. His earlier statement to the police, however, was that they had sex in his car in Pachuta. The court asked Plum-mer why he gave a written statement to the police that the sexual intercourse occurred in his vehicle, which was parked outside of his cousin’s house in Pachuta in Clarke County. Plummer replied that he picked up the child in Pachuta and then drove to Lauderdale County. The court then asked Plummer whether he understood that he was charged with having sexual intercourse in Clarke County not in Lauderdale County, and whether he still wanted to plead guilty. Plummer replied that he still wanted to plead guilty.

¶ 10. Mississippi Code Annotated section 99-11-19 (Rev.2000) provides the following:

[w]hen an offense is committed partly in one county and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun.

Plummer testified that he picked the child up in Pachuta and drove her to Lauderdale County, where they had sexual intercourse. Therefore, whether the crime actually occurred in whole or in part in Clarke County, by Plummer’s own admission the means by which he accomplished the crime at least commenced in Clarke County when he picked up his young victim to have sex with her. Consequently, we find that Plummer’s testimony during the guilty plea hearing constituted sufficient evidence to lead a reasonable trier of fact to conclude that part or all of the crime occurred in Clarke County. We further find that the Circuit Court of Clarke County had jurisdiction and venue of this case.

¶ 11. As stated above, Plummer seems to confuse, the issue of jurisdiction with that of venue when he argues the trial was improper in Clarke County. Nevertheless, the judge addressed this issue during the plea hearing when he asked Plummer whether he wished to take issue with the discrepancy. Plummer did not. Instead he wanted to go ahead and plead guilty. Furthermore, the Lauderdale and Clarke counties are part of the same circuit court district. A change of venue would not alter the outcome of this case. Had he been reindicted in Lauderdale County, the trial would have been before the same court with the same judges. This issue is without merit.

II. Whether Plummer received ineffective assistance of counsel.

¶ 12. Under this assignment of error, Plummer asserts that the “counsel and trial judge had a conflict of interest in this case because of the age difference between the alleged victim and [Plummer].” Plum-mer further asserts that the transcript and record were “falsified” because “there are words added and words taken out.” Regarding ineffective assistance of counsel, Plummer maintains that he was prejudiced by his attorney’s deficient performance because his attorney “used lies and deceit” to induce him to sign the petition to enter a plea of guilty. Consequently, Plummer additionally argues that his guilty plea was not made voluntarily or intelligently because his attorney, as well as the trial judge, induced him to enter the plea.

¶ 13. The standard of review for a claim of ineffective assistance of counsel was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To bring a successful claim for ineffective assistance of counsel, pursuant to the court’s ruling in Strickland, the defendant must prove that his attorney’s overall performance was deficient and that this deficiency deprived him of a fair trial. Id. at 689, 104 S.Ct. 2052; Moore v. State, 676 So.2d 244, 246 (Miss.1996) (citing Perkins v. State, 487 So.2d 791, 793 (Miss.1986)). We must be mindful of the “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.” Covington v. State, 909 So.2d 160, 162(¶ 4) (Miss.Ct.App.2005) (quoting Stevenson v. State, 798 So.2d 599, 602(¶ 6) (Miss.Ct.App.2001)). To overcome this presumption, the defendant must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Woodson v. State, 845 So.2d 740, 742(¶ 9) (Miss.Ct.App.2003).

¶ 14. We find nothing in the record to support Plummer’s claim that he received ineffective assistance of counsel. In the petition to enter a plea of guilty, Plummer acknowledged that his attorney was fully informed as to all of the facts and circumstances surrounding his case and that he did all that anyone could do to counsel and assist him. Furthermore, during the guilty plea hearing, Plummer testified that his attorney went over his ease and reviewed the petition with him, and that his attorney explained to him the crime of statutory rape, as well as possible defenses. Plummer further testified that he was satisfied with the legal advice and help provided by his attorney.

¶ 15. We give “[gjreat weight

... to statements made under oath and in open court during sentencing.” Sanchez v. State, 913 So.2d 1024, 1027(¶8) (Miss.Ct.App.2005) (quoting Young v. State, 731 So.2d 1120, 1123(¶ 12) (Miss.1999)). Statements made during guilty plea hearings are made under oath; as such, “[tjhere should be a strong presumption of validity.” Id. (quoting Mowdy v. State, 638 So.2d 738, 743 (Miss.1994)). Consequently, we find that Plummer has failed to show that his attorney’s overall performance was deficient, and that this deficiency deprived him of a fair trial. This issue is without merit.

¶ 16. Under this assignment of error, Plummer also asserts that his guilty plea was coerced and involuntary. A guilty plea is voluntary and intelligent only if the defendant has been advised “concerning the nature of the charge against him and the consequences of the plea.” Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992) (citing Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991)). More specifically, the defendant must be informed that by pleading guilty he waives the following: (1) the right to a jury trial; (2) the right to confront adverse witnesses; and (3) the right to protection against self-incrimination. Id. (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). Pursuant to Rule 8.04(A)(4)(b) of the Uniform Rules of Circuit and County Court Practice, the trial court must also “inquire and determine ... [t]hat the accused understands ... the maximum and minimum penalties provided by law.”

¶ 17. During the guilty plea hearing, Plummer testified that he understood the crime with which he was charged, as well as any possible defenses he might have, and that he could possibly receive a sentence from zero to thirty years and a fine from zero to $10,000. Plummer also testified that he understood that by pleading guilty he waived the following guarantees: (1) the right not to plead guilty; (2) the right to a speedy public trial by a jury; (3) the presumption of innocence; (4) the right to confront his accusers; (5) the right to testify in his own defense, if he chose to do so; and (6) the right to have legal representation throughout his trial and appeal. Plummer testified that he understood that the judge was not bound by any recommendation, and that he could be sentenced anywhere from the minimum to the maximum sentence. Plummer also testified that no one forced him into pleading guilty. It should also be noted that, in the petition to enter a plea of guilty, Plummer acknowledged that he read and understood the constitutional rights he waived by pleading guilty and that he was entering a plea of guilty freely and voluntarily. Consequently, we find that the' circuit court did not err in dismissing Plummer’s motion for post-conviction relief as to this issue.

III. Whether the trial court erred by improperly increasing Plum-mer’s fine from $10,000 to $10,-546.50.

¶ 18. This issue was not raised in Plummer’s original motion for post-conviction relief. Therefore, we decline to address this issue, as it may not be raised for the first time on appeal. Gardner v. State, 531 So.2d 805, 809 (Miss.1988) (citing Colurn v. State, 431 So.2d 1111, 1114 (Miss.1983)).

IV. Whether the trial court erred in referring to Plummer as “Ron” during sentencing.

¶ 19. Under this assignment of error, Plummer takes issue with the inclusion of the alias, “Ron Plummer,” in the indictment. Plummer asserts that the trial court erred because it never established that “Ron Plummer” was an alias used by Johnny Plummer.

¶20. The indictment clearly charges Johnny Larond Plummer with statutory rape. Moreover, the sentencing order is styled “State of Mississippi v.s. Johnny Larond Plummer.” This issue is wholly without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, CARLTON, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.