author: IRVING, J., for the Court.

text:
    Michael BRIDGES, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00110-COA.
    Court of Appeals of Mississippi.
    April 17, 2007.
    Rehearing Denied Jan. 15, 2008.
    Michael Bridges, Appellant, pro se.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J., for the Court.

¶ 1. Michael Bridges appeals a judgment of the Lowndes County Circuit Court dismissing his motion for post-conviction relief (PCR). He asserts (1) that his guilty plea was involuntarily entered, (2) that he received ineffective assistance of counsel, and (3) that the circuit court erred in refusing to grant his motion for an eviden-tiary hearing.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Bridges was indicted by a Lowndes County grand jury for possession of at least two precursor chemicals with intent to manufacture methamphetamine. On June 29, 2004, pursuant to a plea agreement, Bridges pleaded guilty to possession of methamphetamine precursors as a prior drug offender. The State agreed not to pursue sentencing as a habitual offender. However, the agreement provided that Bridges would be sentenced as a second and subsequent drug offender. The court sentenced him to thirty-four years in the custody of the Mississippi Department of Corrections.

¶ 4. On June 20, 2005, Bridges filed a PCR motion which was summarily dismissed by the trial court. Bridges then filed a motion for rehearing, to which he attached affidavits from his mother and father, alleging that Bridges’ attorney assured Bridges that he would receive a sentence between eight and twelve years. This motion was likewise denied.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Involuntary Guilty Plea

¶ 5. “A guilty plea will only be binding upon a criminal defendant if it is voluntary and intelligently entered.” Drennan v. State, 695 So.2d 581, 584 (Miss.1997) (quoting Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992)). In order to be voluntarily and intelligently entered, a defendant must be advised about the nature of the crime charged against him and the consequences of the guilty plea.” Id.

¶ 6. Bridges contends that his guilty plea was entered involuntarily for several reasons: (1) he pleaded guilty upon advice from his attorney that he would receive a sentence of eight to twelve years, (2) the trial court never ruled on his motion for re-sentencing, (3) the trial court failed to adequately advise him of the true nature and critical elements of the charges against him, (4) the trial court did not read the indictment into the record, (5) his thirty-four year sentence is disproportionate to the crime, (6) he was not permitted to call witnesses for rebuttal or impeachment purposes at his suppression hearing, and (7) he was not granted his right to a speedy trial.

¶ 7. The transcript of the plea hearing and the petition to plead guilty clearly belie allegations one and three. The petition states, “I recognize that if I have been told by my lawyer that I might receive probation or a light sentence, this is merely his prediction and is not binding on the Court.” In addition, the following exchange between the court and Bridges at the guilty plea hearing contradicts Bridges’ contention that his plea was not voluntarily and intelligently entered:

Q. Okay. Now, you understand that you’re giving up your right to a jury trial?
A. Yes, ma’am.
Q. You also understand that you’re giving up your constitutional right against self-incrimination; that is, your right not to testify against yourself. You understand you’re giving up that right?
A. Yes, ma’am.
Q. Okay. And you’re giving up your right to question the state’s witnesses?
A. Yes, ma’am.
Q. You’re giving up your right to make them come into court?
A. Yes, ma’am.
Q. And to testify against you?
A. Yes, ma’am.
Q. Now, under our law, you have the right to testify as a witness yourself in your own trial, but if you plead guilty, you don’t have a chance to make a decision as to whether you would or would not testify as a witness because we’re not going to have a trial. Do you understand that?
A. Yes, ma’am.
Q. And you understand that you are stating that you’re guilty of this offense of—
A. Yes, ma’am.
Q. —possession of methamphetamine precursors?
A. Yes, ma’am.
Q. Now, before a jury could find you guilty of this crime, the state would have to come to court and prove that you were guilty beyond a reasonable doubt. If you plead guilty, the state is not required to prove anything to a jury because you’re standing here saying you did it. Do you understand that?
A. Yes, ma’am.
⅝ ⅜ ⅜ ⅝
Q: Now you understand that if you plead guilty to this charge and the court accepts your plea, that the court can sentence you — the minimum sentence is 0 years and $10,000 up to 60 years and a $2 million fine?
A. Yes, ma’am.
Q: Okay. Now, Mr. Goodwin, you advised Mr. Bridges of his constitutional rights?
ATTORNEY FOR DEFENDANT: I did, your honor.
Q: And you advised him of the elements of the offense to which he is pleading guilty?
ATTORNEY FOR DEFENDANT: I did, your honor.

¶8. The transcript of the plea hearing also reflects that Bridges understood that he was entering an open plea and that the State had not made a recommendation. However, the district attorney agreed to pursue an enhanced sentence pursuant to Bridges’ status as a prior drug offender, rather than to try him as a habitual offender. The court asked Bridges if he had any questions regarding the enhanced punishment as a prior drug offender. He responded, “I really don’t understand what it — I mean, enhanced punishment. The agreement said 0 to 60 years, and I’m just leaving it up to you.” In order to ensure that Bridges fully understood the sentencing process, the court explained that it would not be required to impose a mandatory sentence; because Bridges was being sentenced as a prior drug offender, as opposed to a habitual offender.

¶ 9. The court also examined Bridges’ attorney to ensure that Bridges had been fully informed about the minimum and maximum sentences for possession of methamphetamine precursor chemicals. The trial judge asked Bridges, “[A]nd [your attorney] discussed that with you?” Bridges responded in the affirmative. Furthermore, the trial judge asked Bridges, “[D]o you have any questions about anything that’s in the document, the petition to enter a plea of guilty, that you want to ask the court about?” Bridges responded, “[N]o, ma’am.” The trial judge also asked Bridges at his sentencing hearing whether he understood that the court had the authority to enhance or double his prison term and/or fine. Bridges responded, “[Y]es, ma’am.”

¶ 10. “Solemn declarations in open court carry a strong presumption of verity.” Baker v. State, 358 So.2d 401, 403 (Miss.1978) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)). Furthermore, the Mississippi Supreme Court has stated: “when the trial court questions the defendant and explains his rights and the effects and consequences of the plea on the record, the plea is rendered voluntary despite advice given to the defendant by his attorney.” Harris v. State, 806 So.2d 1127, 1130 (¶ 9) (Miss. 2002) (citing Roland v. State, 666 So.2d 747, 750 (Miss.1995)). Thus, even if Bridges’ attorney suggested that he would likely receive a sentence between eight and twelve years, such a prediction does not render his plea involuntary.

1111. Bridges also alleges that his plea was involuntary because the trial court did not read his indictment into the record. To support his argument he cites Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). However, we find that Boykin does not stand for the proposition for which Bridges contends. Bridges argues that the United States Supreme Court held that “even a mere reading of the indictment or bill of information will not suffice as to adequately informing [sic] the defendant of the charges.” This statement does not appear in Boykin. Moreover, we are aware of no authority that requires the trial judge to read the indictment into the record at the guilty plea hearing. The judge is only required to ensure that a defendant’s plea is voluntarily and intelligently entered. As we have already concluded, the trial judge properly made such a finding despite Bridges’ contentions to the contrary.

¶ 12. Bridges also argues that his plea was involuntary because his thirty-four year sentence is “disproportionate to the crime where the average sentence for similar crimes in Lowndes County recorded during the previous two (2) years is only 4.5 years.” We note at the outset that the Mississippi Supreme Court has held that “[t]he imposition of a sentence is within the discretion of the trial court, and this Court will not review the sentence, if it is within the limits prescribed by statute.” Reynolds v. State, 585 So.2d 753, 756 (Miss.1991) (citing Reed v. State, 536 So.2d 1336, 1339 (Miss.1988)). Bridges’ sentence is certainly within the statutory limits, as this is Bridges’ third drug conviction. We point out that had the district attorney recommended that Bridges be sentenced pursuant to his status as a habitual offender, Bridges’ would have been sentenced to a mandatory term of sixty years, with no possibility of parole or reduction. Miss. Code Ann. § 99-19-81 (Rev.2000). Additionally, Bridges’ thirty-four year sentence is considerably less than the sixty-year sentence that the trial judge could have imposed.

¶ 13. We find that Bridges’ guilty plea waives his last two arguments: that his plea is rendered involuntary and unconstitutional because he was not allowed to call witnesses for rebuttal and/or impeachment purposes during his suppression hearing and that he was denied the right to a speedy trial. In Anderson v. State, 577 So.2d 390, 391 (Miss.1991) (citing Ellzey v. State, 196 So.2d 889, 892 (Miss.1967)), the Mississippi Supreme Court held that “a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.” Moreover, the court specifically noted that the right to a speedy trial can be waived or forfeited, whether the origin be statutory or constitutional. Id.

¶ 14. Our review of the transcripts of the suppression, plea, and sentencing hearings reveals that the trial judge thoroughly examined Bridges and properly determined that he understood the consequences of his guilty plea and that the plea was knowingly, voluntarily, and intelligently entered. Thus, we find no merit to this issue.

2. Ineffective Assistance of Counsel

¶ 15. To be successful on an ineffective assistance of counsel claim, Bridges is required to show that his attorney was deficient and that he was prejudiced by that deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It is incumbent upon Bridges to show that his attorney’s errors were so serious that he did not receive “ ‘counsel’ guaranteed [to him] by the Sixth Amendment.” Id.

¶ 16. Bridges argues that his counsel was ineffective during his suppression hearing, sentencing hearing, and “during the plea process itself.” Because we have already discussed Bridges’ contention that he pleaded guilty based on promises made by his trial counsel, we need not repeat that discussion here. We will address only the allegations concerning counsel’s conduct during the suppression hearing.

¶ 17. Bridges contends that his counsel was ineffective during his suppression hearing by failing: (1) to “raise an objection to the fact that the State did not secure an arrest warrant in Coahoma County where the original arrest was made,” (2) to question witnesses about the arrest warrant after informing Bridges that the State could not produce the arrest warrant from Coahoma County, (3) to properly attack the validity and legality of the search warrant and the affidavit for the search warrant, (4) to challenge the search warrant and accompanying affidavit regarding its description of the things to be seized, and (5) to object to “the fact that the magistrate was not provided with a substantial basis for determining the existence of probable cause.”

¶ 18. We note that Bridges did not assert that his counsel was derelict in representing him at any point during the suppression, plea, or sentencing hearings. At his plea hearing, the trial judge asked Bridges, “[A]re you dissatisfied in any manner with the services rendered to you by [your attorney]?” Bridges answered, “[N]o, ma’am.” In addition, Bridges was afforded the opportunity to voice his dissatisfaction at the sentencing hearing. The court stated, “[N]ow, Mr. Bridges, [attorney for defendant] was appointed to represent you as your attorney. Are you satisfied with his services in this proceeding?” Bridges responded, “[Y]es, ma’am.” Moreover, this Court cannot understand why Bridges would not have brought this matter to the court’s attention when he was asked if he had anything he wished to say before the court imposed its sentence. Instead, Bridges used this opportunity to ask the court for leniency. Thus, this Court cannot agree that Bridges was denied effective assistance of counsel. This issue is without merit.

3. Evidentiary Hearing

¶ 19. Bridges contends that his motion for an evidentiary hearing should have been granted. The Post Conviction Collateral Relief Act provides: “If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.” Miss.Code Ann. § 99-39-11(2) (Rev.2000). We cannot discern any merit to any of the allegations made by Bridges; thus, he is not entitled to an evidentiary hearing.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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

      . Although Bridges filed a motion to reconsider his sentence, he failed to present this issue to the trial court in his PCR; thus, this issue is procedurally barred. Evans v. State, 725 So.2d 613, 632(¶ 2) (Miss.1997).

      . Bridges has prior felony convictions in Mississippi and Alabama.

      . Mississippi Code Annotated section 41-29-147 (Rev.2005) provides in part: "Except as otherwise provided in Section 41-29-142, any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.”

        . The maximum sentence for possession of two or more precursor chemicals for the manufacture of methamphetamine is thirty years. Miss.Code Ann. § 41-29-313 (Rev. 2005). As a second and subsequent offender, Bridges’ sentence could be doubled for a maximum of sixty years. Miss.Code Ann. § 41-29-147 (Rev.2005).


source: Caselaw Access Project

author: CHANDLER, J., for the Court.

license: Public Domain

text:
    Jeffrey B. HARVEY a/k/a Jeffrey Harvey, Appellant v. STATE of Mississippi, Appellee. Jeffrey B. Harvey a/k/a Jeffrey Harvey, Appellant v. State of Mississippi, Appellee.
    Nos. 2006-CP-00553-COA, 2006-CP-00585-COA.
    Court of Appeals of Mississippi.
    June 26, 2007.
    Rehearing Denied Nov. 20, 2007.

      Jeffrey B. Harvey, Appellant, pro se.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J., for the Court.

¶ 1. At a hearing in the Circuit Court of Tate County on April 15, 2004, Jeffrey B. Harvey pled guilty to two Tate County charges of uttering a forgery and to two DeSoto County charges of uttering a forgery. For each count, the court sentenced Harvey to ten years, with seven years to serve and three years on post-release supervision, with all four sentences to run concurrently. Subsequently, Harvey filed motions for post-conviction relief (PCRs) in Tate and DeSoto Counties. In both PCRs, Harvey argued that the court erred in sentencing him as a habitual offender because the State had not proven his habitual offender status. The circuit courts summarily dismissed the PCRs. In these consolidated appeals, we review the summary dismissal of Harvey’s two PCRs.

FACTS

¶ 2. Harvey was indicted in Tate County for two counts of uttering a forgery and in DeSoto County for nine counts of uttering a forgery. Both indictments charged Harvey as a violent habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev.2000). Harvey entered petitions to plead guilty to the two Tate County charges and to two DeSoto County charges as a non-violent habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2000). The Circuit Court of Tate County, Judge Andrew C. Baker presiding, accepted Harvey’s guilty pleas to the two Tate County and two DeSoto County charges.

¶ 3. At the sentencing portion of the hearing, certified copies of pen packs were admitted into evidence as “Exhibit 1.” The pen packs showed Harvey’s prior convictions in Tennessee of rape and two counts of robbery with a deadly weapon for which he received three concurrent ten-year sentences; a federal conviction of using a stolen credit card and sentence of nineteen months in the custody of the United States Department of Prisons and two years’ supervised release; and several convictions in Illinois including attempted murder and armed robbery with concurrent twenty-two year sentences, attempted escape with a three-year sentence, and three controlled substances convictions with concurrent four-year sentences. The pen packs included copies of the judgments of conviction for each crime. Exhibit 1 was the only exhibit to the plea hearing and was reviewed by the court in sentencing Harvey as a habitual offender on both the Tate County charges and the DeSoto County charges.

¶ 4. Harvey filed separate motions for post-conviction relief from the Tate County and DeSoto County convictions. In both motions, he argued that there was insufficient evidence of his prior convictions to establish his habitual offender status and he requested to be re-sentenced as a non-habitual offender. The Circuit Courts of Tate and DeSoto Counties, Judge Andrew C. Baker presiding, dismissed the PCRs. Judge Baker found from his review of the records that certified copies of pen-packs had been admitted into evidence establishing Harvey as a habitual offender and, therefore, it plainly appeared that Harvey was entitled to no relief.

STANDARD OF REVIEW

¶ 5. A movant for post-conviction relief bears the burden of proof of entitlement to relief by the preponderance of the evidence. Miss.Code Ann. § 99-39-23(7) (Supp.2006). Pursuant to Mississippi Code Annotated section 99-39-11(2) (Rev. 2000), the trial court may summarily dismiss a motion for post-conviction relief if “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” This Court will affirm the lower court’s summary dismissal of a PCR if the petitioner has failed to demonstrate “ ‘a claim procedurally alive substantially] showing denial of a state or federal right....’” Young v. State, 731 So.2d 1120, 1122(¶ 9) (Miss.1999) (quoting Myers v. State, 583 So.2d 174, 176 (Miss. 1991)). We will reverse any fact-findings made by the trial court only when those findings are clearly erroneous. Boddie v. State, 875 So.2d 180, 183(¶ 6) (Miss.2004). We review all questions of law de novo. Id.

LAW AND ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED IN SENTENCING HARVEY AS A HABITUAL OFFENDER?

¶ 6. Harvey argues that the State failed to prove his habitual offender status beyond a reasonable doubt. Section 99-19-81 provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to 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.

The State bears the burden to prove the defendant’s habitual offender status beyond a reasonable doubt by producing sufficient evidence that the defendant was “convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times” and for which the defendant was sentenced to separate terms of at least one year’s imprisonment. Vince v. State, 844 So.2d 510, 517(¶22) (Miss.Ct.App.2003). Certified copies of pen packs have been deemed competent evidence of prior convictions for the purposes of the habitual offender statutes. Frazier v. State, 907 So.2d 985, 991(¶ 16) (Miss.Ct.App.2005).

¶ 7. Harvey attached a copy of the Tennessee pen pack to his appellate brief which he contends was the only pen pack admitted into evidence against him. Harvey argues that only his Tennessee convictions were before the circuit court and that those convictions did not constitute charges “separately brought and arising out of separate incidents at different times.” Miss.Code Ann. § 99-19-81. Therefore, Harvey argues, there was insufficient evidence to establish his habitual offender status. Harvey requests that this Court reverse and remand these cases for him to be re-sentenced as a non-habitual offender.

¶8. Included in the appellate record of Harvey’s DeSoto County conviction and labeled “Exhibit 1” is a copy of the Tennessee pen pack without the other pen packs attached. However, the appellate record of Harvey’s Tate County conviction includes a copy of all the pen-packs labeled “Exhibit 1.” The transcript of Harvey’s single plea hearing on both convictions indicates that only one exhibit, “Exhibit 1,” was admitted during the sentencing phase. Before Exhibit 1 was received into evidence, the State acknowledged that some of the dates of conviction shown by the pen packs varied from those charged in the indictments and moved to amend the indictments. The court granted the motion to amend the indictments as to form to correct the errors. It is manifest from the plea hearing transcript and Tate County’s record of “Exhibit 1” that the Tennessee, federal, and Illinois pen packs were admitted into evidence against Harvey collectively as “Exhibit 1” and were considered by the circuit court in finding Harvey was a habitual offender. The pen packs revealed multiple convictions with over one-year sentences upon charges separately brought and arising out of separate incidents at different times. This proof was more than sufficient to establish Harvey as a habitual offender. Miss.Code Ann. § 99-19-81. Judge Baker did not err in summarily dismissing Harvey’s PCRs.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


text:
    Marquette RANDOLPH, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02233-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2007.
    Rehearing Denied Jan. 22, 2008.

      Herbert H. Klein, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   IRVING, J., for the Court.

¶ 1. Marquette Randolph was convicted by a jury of attempted possession of more than thirty grams of cocaine and was sentenced by the Jones County Circuit Court to twenty years with five years suspended and fifteen years to serve in the custody of the Mississippi Department of Corrections. Aggrieved, he appeals and asserts the following issues, which we quote verbatim:

I. The Trial Court erred in denying the Motion to Suppress Evidence.
II. The Trial Court erred in preventing cross-examination regarding fingerprinting analysis.
III. The Trial Court erred in preventing Defendant from presenting his theory of defense.
IV. The Trial Court erred in preventing Defendant from testifying regarding his earlier statements.
V. The Trial Court erred in giving State’s Jury Instruction “S-l-A” without the circumstantial evidence language and in refusing Defendant’s Jury Instructions “D^l”, “D-5”, “D-8”, “D-10”, “D-ll”, “D-12”, and “D-13” containing circumstantial evidence language.
VI. The Trial Court erred in giving State’s Jury Instruction “S-2” as a lesser included offense instruction.
VII. The Trial Court erred in allowing the Assistant District Attorney to make inflammatory statements during closing argument.
VTII. The Trial Court erred in overruling Defendant’s Motion for [a] New Trial or in the Alternative Judgment Notwithstanding the Verdict.
IX. The cumulative effect of the errors committed by the Trial Court were [sic] of a prejudicial effect and prevented the Defendant from receiving a fair trial.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On July 8, 2003, Randolph drove his blue Ford Crown Victoria to the home of Terrence Shanks, located on Bartlett Street in Laurel, Mississippi. Randolph parked his vehicle on the street in front of Shanks’s home. Shanks approached Randolph’s car and sat in the passenger’s seat. As they sat in Randolph’s car, Randolph attempted to convince Shanks to give him one-half gram of cocaine on credit.

¶ 4. During this time, Trea Staples and Mitchell Van Syckel, narcotics agents with the Laurel Police Department at the time of the incident, were conducting surveillance of the area. The officers noticed that Randolph’s car was parked facing eastbound in the westbound lane of traffic. The officers passed Randolph’s car and continued down the street before turning around and parking their unmarked Ford Expedition nose to nose with Randolph’s car. The officers exited their vehicle and approached Randolph’s car. At this point, Shanks exited Randolph’s car, emptied a beer bottle onto the street, and threw the bottle into a nearby garbage can. The City of Laurel has an ordinance prohibiting public possession of open containers of alcohol. According to Staples, while he was speaking with Shanks about Shanks’s violation of the open container ordinance, he noticed that Van Syckel had become involved in a foot pursuit with Randolph, so he radioed for backup to assist Van Syckel.

¶ 5. Van Syckel testified that as he approached Randolph’s car he observed Randolph moving in the driver’s seat. As a result, Van Syckel suspected that Randolph was either retrieving something from underneath his seat, or trying to hide something under the seat. Concerned, Van Syckel hurried to the driver’s door and instructed Randolph to exit the vehicle. At this point, Van Syckel noticed two clear plastic bags sitting on the seat that contained what appeared to be a powdery white substance.

¶ 6. Randolph fled the scene and Van Syckel gave chase. In short order, Van Syckel caught Randolph, handcuffed him, and waited for a patrol officer to arrive. When an officer arrived, Van Syckel put Randolph in the patrol car and walked back to where Randolph’s car was parked.

¶ 7. While Van Syckel was involved in the foot pursuit with Randolph, Staples took Shanks into custody. Staples escorted Shanks over to the driver’s side of Randolph’s car. Staples testified that the door to the car was open, and that he also saw two bags that contained a white powdery substance sitting on the front seat. Staples also stated that a pat down of Shanks revealed that he had $1,300 in his pants pocket.

¶ 8. When Van Syckel arrived back at the original scene, he noticed that the two bags that were on Randolph’s seat had been moved to the roof of the car. Van Syckel returned the bags to the driver’s seat and took pictures of them. • Sergeant Layne Bounds of the Laurel Police Department conducted an inventory search of Randolph’s car, during which he found three additional bags also containing a white powdery substance between the driver’s seat and the “hump” that is located in the center of the car.

¶ 9. Later, Staples and Van Syckel obtained a search warrant and searched Shanks’s house. As a result of the search, they found clear plastic sandwich bags, a set of scales, money, and money wrappers. According to Staples, sandwich bags similar to the bags found in Shanks’s house are sometimes used to package and sell units of cocaine. Testing revealed that all of the bags found in Randolph’s car contained cocaine. The five bags of cocaine weighed a total of 120.36 grams.

¶ 10. On July 21, 2004, the Jones County Grand Jury returned an indictment against Randolph and charged him with possession of approximately 120.36 grams of cocaine. Randolph filed a motion to suppress the admission of, among other things, the bags of cocaine, arguing that the evidence was obtained due to an illegal arrest and an illegal search and seizure. On October 13, 2005, Randolph went to trial. After jury selection, Randolph’s counsel brought his unresolved motion to suppress to the court’s attention. The court conducted a suppression hearing and overruled Randolph’s motion.

¶ 11. Randolph took the stand and testified on his own behalf. Randolph stated that in July 2003, he was addicted to cocaine, was unemployed, and was dependent on his family for financial assistance. Specifically, he testified that on July 8, 2003, he attempted to get Shanks to “[g]ive [him] some cocaine on credit.” Randolph testified that he is not guilty of possession of cocaine because he attempted to get cocaine, but failed to do so because he was interrupted by Staples and Van Syckel. The court allowed the State to submit an attempted possession instruction to the jury. Jury instruction S-2 instructed the jury that it could convict Randolph of attempted possession of cocaine if it found that Randolph was not guilty of possession of cocaine. Randolph objected, but the court allowed the instruction over his objection. Thereafter, Randolph was convicted by the jury of attempted possession of cocaine.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Motion to Suppress

¶ 13. “In reviewing the denial of a motion to suppress, this Court looks to determine whether the trial court’s findings, considering the totality of the circumstances, are supported by substantial credible evidence.” Jim v. State, 911 So.2d 658, 660(¶ 9) (Miss.Ct.App.2005) (citing Evans v. State, 823 So.2d 617, 621 (¶ 18) (Miss.Ct.App.2002)). “Where supported by substantial credible evidence, this Court shall not disturb those findings.” Id.

¶ 14. As previously stated, Randolph filed a motion to suppress evidence. In that motion, he argued that the evidence seized from his car was inadmissible as fruit of the poisonous tree. Randolph contends that Staples and Van Syckel approached his car without probable cause or reasonable suspicion. The State responded, and the trial judge agreed that Randolph’s car was parked illegally. However, the State has not pointed to any ordinance or statute making it illegal to park on the street in front of a house in a residential neighborhood. Despite the State’s failure to cite any authority for its position, we agree that Randolph was ille-gaily parked, since Mississippi Code Annotated section 63-3-907 (Rev.2004) requires all vehicles stopped or parked upon a roadway, where there is an adjacent curb, to be parked “with the right-hand wheels of such vehicle parallel with and within twelve inches of the right-hand curb.”

¶ 15. In INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), the United States Supreme Court held that:

Although we have yet to rule directly on whether mere questioning of an individual by a police official, without more, can amount to a seizure under the Fourth Amendment, our recent decision in [Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ] plainly implies that interrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.

The court further held, “police questioning, by itself, is unlikely to result in a Fourth Amendment violation.” Id.

¶ 16. Therefore, if officers are not prohibited from approaching a person and interrogating him relating to his identity, it seems only logical that officers have the inherent authority to approach a vehicle parked on a public street, even one that is parked legally. Randolph’s act of fleeing the scene and Shanks’s act of pouring out the beer gave the officers probable cause to believe that the men were involved in illegal activity. We find no merit to this issue.

2. Cross-Examination Regarding Fingerprint Analysis

¶ 17. This Court reviews a trial court’s decision to exclude evidence pursuant to an abuse of discretion standard. Stallworth v. State, 797 So.2d 905, 908(¶ 8) (Miss.2001) (citing Floyd v. City of Crystal Springs, 749 So.2d 110, 113(¶ 12) (Miss. 1999)).

¶ 18. In this issue, Randolph argues that the trial court abused its discretion by prohibiting his attorney from cross-examining Staples regarding whether officers conducted a fingerprint analysis of the bags of cocaine. The following exchange occurred during the cross-examination of Staples:

Q. Did you send [the bags of cocaine] off to the crime lab for fingerprints?
A. I don’t recall if they were analyzed for latent prints or not.
Q. You didn’t request it though.
[ATTORNEY FOR STATE]: Your Honor, I’m going to object to this. He stipulated. We didn’t go into it because he stipulated that was cocaine found in the car.
THE COURT: Sustained.

¶ 19. Randolph based his defense on the theory that he only attempted to possess cocaine, but never actually possessed cocaine. According to Randolph, the cocaine belonged to Shanks; therefore, possession and ownership of the cocaine were central issues. Randolph’s question was relevant to determine whether anyone examined the bags of cocaine for fingerprints, and if so, whether Randolph’s fingerprints were discovered. “ ‘Relevant Evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. Whether Randolph’s fingerprints appeared on the bag tends to make it more or less probable that he possessed the cocaine, either actually or constructively.

¶ 20. We agree that the trial court erred in refusing to allow Randolph’s attorney the opportunity to cross-examine Staples about whether the bags of cocaine were analyzed for latent fingerprints. However, even had the most favorable testimony possible been elicited regarding the fingerprints, that evidence would have had no bearing on Randolph’s attempt conviction. Furthermore, we find that the error was harmless because Randolph was convicted of attempting to possess cocaine, and he admitted that he met with Shanks in an attempt to get Shanks to give him cocaine on credit.

3. Search of Shanks’s House

¶ 21. As in the previous issue, this issue also arises from Randolph’s cross-examination of Staples. Specifically, this issue concerns the trial court’s decision to prohibit Randolph from demonstrating that Shanks was a cocaine dealer and that Randolph was an abuser of cocaine. Randolph claims that he intended to show that Shanks had paraphernalia indicative of his status as a cocaine dealer in his house. Randolph’s attorney attempted to ask Staples about the search of Shanks’s house: “And y’all conducted a search of [Shanks’s] home?” Staples answered, “That’s correct.” The State objected and stated, “Your Honor, I’m going to object to moving on past this incident to a search of somebody’s house that’s not on trial.” The trial court sustained the State’s objection.

¶ 22. Randolph’s attorney then stated, “Your Honor, if I may, this goes to the heart of our defense. There was— may I be heard outside the presence of the jury?” The trial court allowed Randolph’s attorney to approach the bench. According to the record, a bench conference occurred, but the conference was not reported and it does not appear in the record. Regardless, the trial court allowed Randolph’s attorney to make a proffer. During this proffer, Staples stated that the search of Shanks’s home uncovered bags similar to the bags found in Randolph’s car, a digital set of scales, money, and $1,000 bank bands, which are used to wrap money. After Randolph’s attorney concluded his proffer, he stated:

[ATTORNEY FOR DEFENDANT]: Your Honor, when we attempted on cross-examination to go into the search warrant, our defense is that the drugs in the car belonged to and were possessed by Terrance Shanks to the exclusion of Marquette Randolph. They obtained evidence in the home of Terrance Shanks that corroborates and verifies our defense that all that dope belonged to Terrance Shanks to the exclusion of Marquette Randolph. To not be able to further our defense that it’s not his dope makes it impossible for us to put forth a complete defense.
THE COURT: My ruling stands. It’s two different venues. One, as you call it, one set of dope or one amount of dope, where it was versus where another amount of dope was. You have a co-indictment here, but you also asked that there be a severance. And there’s been a severance. Whatever Shanks’ dope has nothing to do with the dope in this case. This man is being tried based on his involvement in the dope at hand.

Randolph contends that the trial court erred. We disagree. The fact that drug paraphernalia was found in Shanks’s home is irrelevant, and does not tend to prove that the drugs found in Randolph’s car belonged to Shanks and not to Randolph. However, assuming that such testimony was relevant, we find this error to be harmless. As previously stated, Randolph was convicted of attempted possession of cocaine. Randolph, by his own admission, testified that he was trying to possess cocaine from Shanks at the time the officers approached his car. Thus, this issue lacks merit.

A Randolph’s Prior Statements

¶ 23. On direct examination Randolph attempted to testify about an exchange that occurred between Randolph and Shanks after they had bonded out of jail. The record reflects the following:

Q. Now, you were booked and then you bonded out?
A. Yes.
Q. Okay. Did you have an opportunity to see Terrance Shanks after that? A. Yes. After — we actually was bonded out together. And that’s when I saw him, after we bonded out.
Q. Did you speak with him?
A. Yes.
Q. What did you ask him?
A. I asked him was he—

The State objected and the trial court sustained the objection. Randolph argued that his attorney was simply trying to elicit from Randolph what he asked Shanks and not what Shanks said to Randolph. Again, the trial court sustained the objection and stated, “[w]hat good would it do if he can’t answer what [Shanks] said. I sustain.”

¶ 24. We find no abuse of discretion. Randolph argues that his response would not have been hearsay pursuant to Rule 801(d)(1)(B) of the Mississippi Rules of Evidence which provides that a statement is not hearsay if:

The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.

However, we do not find Rule 801(d)(1)(B) applicable to the facts of this case because the testimony was not offered “to rebut an express or implied charge against Randolph of recent fabrication or improper influence or motive.” Nevertheless, if Randolph’s own statement, made prior to trial, was offered for the truth of the matter asserted within it, it would be hearsay. As we read the record and the trial judge’s ruling, it was Shanks’s response to Randolph, not Randolph’s question to Shanks that Randolph sought to have admitted. Randolph was not attempting to prove the truth of the contents of his question to Shanks, but rather Shanks’s response to the question. Presumably, Randolph would have testified about some exculpatory statement made by Shanks after their arrest. However, Randolph’s testimony about what Shanks said to him in response to his question would have been hearsay. Therefore, allowing the jury to hear what Randolph asked Shanks would not have benefitted Randolph because he actually wanted to get Shanks’s response before the jury. Thus, although Randolph’s prior statement would not have been hearsay, the trial judge’s refusal to allow it to come into evidence resulted in no prejudice to Randolph. As such, we find no merit to this issue.

5. Denial of Circumstantial Evidence Instructions

¶ 25. Randolph argues that the trial court erred in granting the State’s instructions, which did not include circumstantial evidence language, and in denying his instructions which did include such language. The State contends that a circumstantial evidence instruction was unnecessary because “[t]here was testimony of eyewitnesses who saw [Randolph] in control and dominion of the vehicle in which cocaine was found.” Specifically, the State argues that “[t]his was direct evidence.” We disagree. The eyewitness testimony only tended to prove that Randolph was making movements in the driver’s seat shortly before Van Syckel approached Randolph’s car. Therefore, we find that the trial court erred in refusing to allow circumstantial evidence language to be included in the jury instructions. Nevertheless, Randolph was convicted of attempted possession, and there was direct evidence of the attempt in the form of his admission to attempting to possess cocaine from Shanks. Therefore, we again find the trial court’s error to be harmless, as Randolph was convicted of attempted possession. There is no merit to this issue.

6. Lesser Included Offense Instruction

¶ 26. In this issue, we understand Randolph’s argument to be similar to the argument in his previous issue, in that he contends that the State’s jury instruction, S-2, should have contained circumstantial evidence language. Instruction S-2 reads as follows:

The Court instructs the jury that if you fail to find beyond a reasonable doubt that the defendant, MARQUETTE RANDOLPH, possessed the cocaine in question, then and only then you must consider the lesser included offense of attempted possession of cocaine.
The Court further instructs the jury that the defendant, MARQUETTE RANDOLPH, is guilty of attempted possession of cocaine if you find from the evidence in this case beyond a reasonable doubt that MARQUETTE RANDOLPH met with Terrance Shanks by driving to meet him for the purpose of purchasing cocaine, more than thirty (30) grams, and that he was prevented from making the cocaine purchase only because of the arrival of Laurel Narcotic Police Officers.
If the State has failed to prove beyond a reasonable doubt that the defendant, MARQUETTE RANDOLPH, attempted to purchase cocaine, more than thirty (30) grams, and he was prevented from doing so by the arrival of Laurel Narcotic Police Officers, then you shall find him not guilty of attempted possession of cocaine more than thirty (30) grams.

Randolph makes several arguments in this issue: (1) that there was no evidentiary basis for the attempt instruction, because he was only trying to possess one-half gram, and not more than thirty grams, as stated in the instruction, (2) that attempt is not a lesser-included offense of possession, and (3) that he cannot be convicted of attempt when the crime charged in his indictment was possession of cocaine.

¶27. Mississippi Code Annotated section 99-19-5(1) (Supp.2006) provides:

On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or if any attempt to commit the same offense, or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose.

Thus, section 99-19-5 makes clear that a jury may find a defendant guilty of the offense as charged, or any attempt to commit the same offense, or the jury may find him guilty of an inferior offense on an indictment for any offense. Therefore, this issue lacks merit.

7. Improper Statements by Prosecution

¶ 28. Randolph contends that the following references made by the State during its closing argument unduly influenced the jury:

You know, I just listen rabbit trail, rabbit trail, rabbit trail. Talk about who moved the dope. I didn’t kill the woman. I know she was in my back seat, but turn me loose. The cops moved the body and put it back.
[ATTORNEY FOR DEFENDANT]: Objection, Your Honor. He’s talking about murder now.
[ATTORNEY FOR THE STATE]: I’m giving an example.
THE COURT: Keep your argument within the facts of the case. [ATTORNEY FOR THE STATE]: Well, let’s just say I got 100 pounds of cocaine on the back seat.
[ATTORNEY FOR DEFENDANT]: Again, Your Honor, that’s outside. 100 pounds, what are we talking about? 100 pounds of cocaine.
THE COURT: Stick to the facts.
* * * *
[ATTORNEY FOR STATE]: His defense in this case is, I didn’t commit a crime. The cops caught me before I could do it. Boy, that’s a new one, ain’t it. I didn’t rob the bank. They stopped me before I could do it. I didn’t shoot the woman. They stopped me before I cold [sic] do it.
[ATTORNEY FOR DEFENDANT]: Objection, Your Honor. Talking about robbing banks and—
[ATTORNEY FOR STATE]: I didn’t do this. I didn’t do anything.
THE COURT: Ya’ll want me to rule on it or just blab on? I’m up here for a purpose. When somebody makes an objection, you stop and let me make the proper ruling. Overruled. Go ahead.

¶29. “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.” Slaughter v. State, 815 So.2d 1122, 1130(¶ 45) (Miss.2002) (citing Sheppard v. State, 777 So.2d 659, 660(¶ 7) (Miss.2000)).

¶ 30. It is well established that “attorneys are allowed wide latitude in closing arguments.” Id. at 1132(¶ 55) (citing Holly v. State, 716 So.2d 979, 988(¶33) (Miss.1998)). In Ahmad v. State, 603 So.2d 843, 846 (Miss.1992), the Mississippi Supreme Court held that “the court should ... be very careful in limiting free play of ideas, imagery, and personalities of counsel in their argument to [a] jury.” Moreover, the Ahmad court stated, “any allegedly improper prosecutorial comment must be considered in context, considering the circumstances of the case, when deciding on their propriety.” Id. Furthermore, the Mississippi Supreme Court has held that “[t]he trial judge is in the best position a[sic] to determine if an alleged objectionable remark has a prejudicial effect.” Slaughter, 815 So.2d at 1132(¶ 55) (citing Roundtree v. State, 568 So.2d 1173, 1177 (Miss.1990)).

¶ 31. As is readily apparent from the above exchange, the trial judge overruled the objections, while instructing the State to stick to the facts of the case. This issue lacks merit, as we cannot conclude that the natural and probable effect of the State’s argument was to create unjust prejudice against Randolph.

¶ 32. Randolph also argues that the State improperly made a “send the message” argument to the jury in its closing argument. We note at the outset that this issue is procedurally barred due to Randolph’s failure to object at trial. “In order to preserve an issue for appeal, counsel must object. The failure to object acts as a waiver.” Havard v. State, 928 So.2d 771, 791(¶ 34) (Miss.2006) (quoting Carr v. State, 873 So.2d 991, 1004(¶35) (Miss.2004)). Procedural bar notwithstanding, we address this issue on its merits.

¶ 33. Randolph contends that this case should be reversed because of the following statements made by the prosecutor:

This crap, this cocaine is in your community. If you want people like him to keep on doing it, you can turn him loose.
⅜ $ ⅜ *
We don’t need to allow that kind of mess to happen. You do what you think is right, not what me or him [sic], for community and we’ll be satisfied.

¶ 34. We agree with Randolph that the State’s “send a message” argument was improper. However, in light of Randolph’s admission, and his failure to object, we conclude that this error was harmless.

8. Sentencing

¶ 35. Randolph contends that the trial court erroneously sentenced him based on facts which were not presented at trial. Specifically, Randolph argues that “the [t]rial [c]ourt allowed and considered evidence that the [defendant purchased large amounts of baking soda commonly used to cut cocaine and to cook crack.” Randolph also argues that the court considered evidence that demonstrated that he was “one of the major cocaine players in Laurel, Mississippi.”

¶ 36. Our review of the record reveals that these statements were made after Randolph’s attorney told the court that Randolph had been “clean and sober” since his arrest. Thus, the State was offering a rebuttal to the defense’s claim. Furthermore, we point out that there is nothing in the record that indicates that the trial judge took this information into consideration when he sentenced Randolph. This issue lacks merit.

9. Sufficiency and Weight of the Evidence

¶ 37. Randolph complains about the denial of his motion for a judgment notwithstanding the verdict and the denial of his motion for a new trial. A motion for a judgment notwithstanding the verdict challenges the legal sufficiency of the evidence presented at trial. Foster v. State, 919 So.2d 12, 15(¶ 14) (Miss.2005). The Mississippi Supreme Court has held that in cases where the facts point overwhelmingly in favor of the appellant “that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render.” Id. (quoting Cmty. Bank v. Courtney, 884 So.2d 767, 772(¶ 9) (Miss.2004)). However, the Court also stated that “if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.” Id. In making this determination, we “consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence.” Id.

¶ 38. Applying this standard to the facts in the present case, we find that the evidence was sufficient to sustain Randolph’s conviction. The evidence is clear that Randolph attempted to possess cocaine from Shanks. The testimony of Staples and Van Syckel, as well as Randolph’s own admission, prohibits us from reaching a contrary conclusion. Therefore, we find that a reasonable jury could find Randolph guilty beyond a reasonable doubt of attempted possession of more than thirty grams of cocaine.

¶ 39. A motion for a new trial challenges the weight of the evidence used to sustain the conviction. Carter v. State, 743 So.2d 985, 989(¶25) (Miss.1999). “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.” Id. (quoting Herring v. State, 691 So.2d 948, 957 (Miss. 1997)). This Court will only reverse a trial court’s decision where there has been an abuse of discretion. Id.

¶ 40. The evidence presented to the jury in Randolph’s defense was that the cocaine belonged to Shanks, and Randolph merely attempted to possess one-half gram of cocaine. It is well established that issues of weight and credibility lie with the jury. Eakes v. State, 665 So.2d 852, 872 (Miss.1995) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). Staples, Van Syckel, and Randolph testified before the jury, who apparently found Randolph’s testimony only partially credible. This is clear because the jury found that Randolph attempted to possess more than thirty grams of cocaine, rather than the one-half gram that he claimed. We find that allowing Randolph’s conviction to stand will not “sanction an unconscionable injustice.” Accordingly, we find no merit to this issue.

10. Cumulative Error
¶ 41. Randolph contends that the cumulative effect of the trial court’s errors denied him the right to a fair trial. We disagree. The Mississippi Supreme Court has held that “individual errors, not reversible m themselves, may combine with other errors to make up reversible error.” Byrom v. State, 868 So.2d 836, 847(¶ 12) (Miss. 2003) (citing Hansen v. State, 592 So.2d 114, 142 (Miss.1991)). Therefore, we must consider “whether the cumulative effect of all errors committed during the trial deprived the defendant of a fundamentally fair and impartial trial.” Id. We find no reversible error, as the harmless errors taken in the aggregate, did not deprive Randolph the right to a fair and impartial trial. This issue lacks merit.

¶ 42. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF CONVICTION OF ATTEMPTED POSSESSION OF MORE THAN THIRTY GRAMS OF COCAINE AND SENTENCE OF TWENTY YEARS, WITH FIVE YEARS SUSPENDED, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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

      . The State cites Mississippi Code Annotated section 63-3-211 (Rev.2004), which regulates the enactment of traffic regulations by local authorities. This section, however, does not prohibit parking on the street in a residential neighborhood.


author: BARNES, J., for the Court.

text:
    Gregory CHAMBERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KM-01101-COA.
    Court of Appeals of Mississippi.
    Oct. 9, 2007.

      Linton Cook Kilpatrick, Greenville, Martin A. Kilpatrick, attorneys for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

BARNES, J., for the Court.

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

¶ 2.\ Gregory Chambers was indicted on the charge of aggravated assault on a law enforcement officer. During argument for jury instructions, Chambers requested a jury instruction for the lesser-included offense of resisting arrest, a request which the trial court granted. The jury thereafter returned a verdict of not guilty on the simple assault charge, but guilty for resisting arrest. Aggrieved by the jury’s verdict, Chambers appeals, raising the following single issue for our review: whether the trial court erred by refusing to grant his motion for judgment notwithstanding the verdict (“JNOV”). Chambers asserts that denial of his motion for JNOV was error because his conviction for resisting arrest was inconsistent with his acquittal of simple assault on a law enforcement officer. We disagree and, therefore, affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 3. In the early morning hours of April 19, 2003, Agent Stan Bagley, director of the Central Delta Drug Task Force (“CDDTF”), was working in Hollandale, Mississippi, patrolling various night clubs located in that town. Agent Bagley and two other CDDTF agents had been assisting officers in another county serve search warrants earlier that evening. After assisting these officers, Bagley decided that he and the other two CDDTF agents would “go through some of the clubs” located in Hollandale before they went home. The agents walked in and out of clubs located on a street referred to as “Blue Front” and then prepared to leave the area.

¶ 4. There was a construction company building located almost directly across the street from one of the “Blue Front” clubs. Agent Bagley noticed a light in this building as he was leaving the area in his truck. Agent Bagley testified that he believed this construction building to be vacant and was unaware of anyone residing in the building at that time. The fact that a light was on in a building he believed to be vacant aroused Bagley’s suspicion; a car parked in front of the building aroused his suspicion further. Agent Bagley made a U-turn in the street and pulled in behind the parked car. Bagley then radioed the other two CDDTF agents to come to his location so that he would not be alone as he investigated. Agent Bagley was about to run a license plate check on the parked car when he noticed two men approaching his truck. Agent Bagley rolled his driver’s side window down and asked the two men if he could help them, to which one of the two men stated, “No.” Bagley then exited his vehicle as he did not want to be trapped in his truck. Bagley testified that one of the two men, Gregory Chambers, stepped toward him and struck him in the chest, causing Bagley to stumble back several steps. Agent Bagley testified that he then stepped back toward Chambers with intentions of placing Chambers under arrest, but Chambers struck Bagley again, this time on the left side of his face. The other two CDDTF agents had arrived by this point, and together, the three agents placed the struggling Chambers in handcuffs and under arrest.

¶ 5. Chambers was initially charged with aggravated assault on a law enforcement officer. However, Chambers’s indictment was amended to reflect a charge of simple assault on a law enforcement officer, as both sides conceded that the evidence would not support the aggravated assault charge. At trial, both sides introduced eyewitness testimony. For the State, CDDTF Agents Bagley, Jimmy Branning, and Rick McDaniel testified that Chambers initiated the physical confrontation. Chambers introduced the testimony of Harvey Topps, Karen Willis, and Latoya Williams to bolster his own testimony that it was Agent Bagley who initiated the physical confrontation. After the close of all testimony, Chambers requested and received an instruction for resisting arrest. The jury thereafter returned a verdict of not guilty for the simple assault charge, but guilty for resisting arrest.

¶ 6. Chambers’s post-trial motion for judgment notwithstanding the verdict, or new trial was denied. The trial court sentenced Chambers to six months in the county jail. Chambers perfected this appeal, asserting one issue for our review. So that we do not misstate Chambers’s argument, we quote verbatim Chambers’s “Summary of the Argument”:

In this appeal, the Appellant submits that the verdict of guilty as to resisting arrest was inconsistent with the jury’s not-guilty verdict as to assault on a law enforcement officer, upon the logic that the jury’s acquittal is an implicit finding that the arrest was unlawful. If an individual has the right to resist an unlawful arrest, the jury could not make a determination that the defendant was guilty of resisting an arrest that they also determined was unlawful under the circumstances herein. Accordingly, a J.N.O.V. should have been entered by the Circuit Court.

We find no merit in Chambers’s argument and therefore affirm the judgment of the trial court.

STANDARD OF REVIEW

¶ 7. A motion for JNOV challenges the legal sufficiency of the evidence presented at trial. Seeling v. State, 844 So.2d 439, 443(¶8) (Miss.2003). The standard applicable to our review of a trial court’s denial of JNOV requires that we view all evidence in the light most favorable to the State, and the State is entitled to all favorable inferences that may reasonably be drawn from the evidence. Id. According to the Mississippi Supreme Court:

The critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] 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.

Hubbard v. State, 938 So.2d 287, 289(¶8) (Miss.2006) (quoting Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005)).

¶ 8. We will reverse and render only where “the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a guilty verdict.” Seeling, 844 So.2d at 443(¶ 8). We must affirm where there is substantial evidence of such a nature that fair-minded and reasonable jurors exercising impartial judgment might have reached different conclusions. Id.

DISCUSSION

¶ 9. Chambers argues on appeal that it was inconsistent for the jury to find him guilty of resisting arrest yet not guilty of simple assault on a law enforcement officer. According to section 97-3-7 of the Mississippi Code, a person is guilty of simple assault upon a law enforcement officer if he “attempts to cause or purposely, knowingly or recklessly causes bodily injury to ... a law enforcement officer [who is] acting within the scope of his duty, office or employment....” Miss.Code Ann. § 97-3-7 (Rev.2000). Resisting arrest occurs when a person obstructs or resists his lawful arrest, by force, violence, threats, or in any other manner. Miss.Code Ann. § 97-9-73 (Rev.2000).

¶ 10. Chambers asserts that the jury implicitly found that the arrest was unlawful by acquitting him of the simple assault charge. By this finding, Chambers argues that he could not have been found guilty of resisting arrest when the arrest he allegedly resisted was unlawful. We find this argument to be flawed for two reasons. First, the jury could have found Chambers not guilty of simple assault on a police officer for any number of reasons. The crime of simple assault on a police officer contains additional elements not present in the crime of resisting arrest. If the jury was not convinced, beyond a reasonable doubt, of any single element of simple assault, then it was bound to acquit Chambers of the indicted charge. Notwithstanding the fact that simple assault on a police officer contains additional elements, Chambers asserts that since the arrest, which he resisted, was made pursuant to the alleged simple assault on agent Bagley, then “one can only presume that the jury found that the evidence was insufficient to prove either that (A) Bagley was within the scope of his employment at the time he made the arrest, or (B) that Bagley initiated the confrontation without a lawful justification.... ” Even assuming, without deciding, that these two “presumptions” exhaust all possible inferences from the jury’s verdict finding Chambers not guilty of simple assault, we are not persuaded that reversal is warranted.

¶ 11. In Hubbard v. State, 938 So.2d 287, 291(¶ 16) (Miss.Ct.App.2006), this Court held that “an inconsistent verdict, in and of itself, is insufficient to reverse a criminal conviction.” Id. (citing George v. State, 752 So.2d 440, 443(¶20) (Miss.Ct. App.1999)). In Hubbard, the evidence demonstrated that more than one officer was involved in an altercation with the defendant, yet the jury found the defendant guilty of aggravated assault on only one officer. The defendant there made the same argument that Chambers asserts in the instant case — that acquittal on one charge proves that the evidence was insufficient for a conviction on the other. Id. at 291(¶ 15). We rejected the defendant’s argument in Hubbard, offering the following excerpt from a United States Supreme Court opinion to support our decision:

[Ijnconsistent verdicts-even verdicts that acquit on a predicate offense while convicting on the compound offense-should not be interpreted as a windfall to the Government at the defendant’s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. But in such situations the Government has no recourse if it wishes to correct the jury’s error; the Government is precluded from appealing or otherwise upsetting such an acquittal by the Constitution’s Double Jeopardy Clause.
Inconsistent verdicts therefore present a situation where “error,” in the sense that the jury has not followed the court’s instructions, most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course.
[Tjhere is no reason to vacate the respondent’s conviction merely because the verdicts cannot rationally be reconciled. Respondent is given the benefit of [his] acquittal on the counts on which [he] was acquitted, and it is neither irrational nor illogical to require [him] to accept the burden of [his] conviction on the counts on which the jury convicted.

Id. at 291 (¶ 16) (quoting United States v. Powell, 469 U.S. 57, 65, 69, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (citations omitted)).

¶ 12. Regardless of whether the jury in the instant case chose to convict Chambers of resisting arrest rather than simple assault on a police officer “through mistake, compromise, or lenity,” we could only speculate as to what, if any, evidence a jury found to be insufficient for a conviction on the latter charge. We cannot rely on such speculation as a basis to reverse Chambers’s conviction. Rather, as noted in Powell, “independent appellate review of the sufficiency of the evidence” for the charge for which Chambers was convicted “provides adequate protection from juror irrationality or error.” See id. (citing Powell, 469 U.S. at 67, 105 S.Ct. 471). We turn now to the question of whether there was sufficient evidence to support the jury’s verdict convicting Chambers of resisting arrest.

¶ 13. To prove that Chambers resisted arrest on the night in question, the State was required to prove that (1) Officer Bagley was attempting a lawful arrest, and (2) Chambers resisted or obstructed his arrest by force, threats, violence, or any other means. See Miss.Code Ann. § 97-9-73 (Rev.2006). The only dispute as to the first element is whether the arrest was lawful. “The offense of resisting arrest presupposes a lawful arrest. A person has a right to use reasonable force to resist an unlawful arrest.” Brendle v. City of Houston, 759 So.2d 1274,1284(¶ 33) (Miss.Ct.App.2000) (quoting Taylor v. State, 396 So.2d 39, 42 (Miss.1981)). Chambers’s entire argument on appeal is posited in the context of the jury’s inconsistent verdicts. In this regard, Chambers does not argue that, given the appellate standard of review, the evidence in this case was insufficient to convict Chambers; rather, Chambers’s argument is that “one can only presume that the jury found that the evidence was insufficient to prove” that the arrest was lawful. Despite Chambers’s very narrow argument on this issue, an argument which we have found to be wholly without merit, we will nonetheless conduct an “independent appellate review of the sufficiency of the evidence” to ensure that there was no “juror irrationality or error.” See Hubbard, 938 So.2d at 291 (¶ 16).

¶ 14. Chambers contends that the jury must have found insufficient evidence that the arrest was lawful. According to

Chambers, this determination could have been based on a lack of evidence that “(A) Bagley was within the scope of his employment at the time he made the arrest, or (B) that Bagley initiated the confrontation without a lawful justification, and that any physical contact that Appellant made upon Bagley was a consequence of self-defense.” As to whether Bagley was acting within the scope of his employment at the time the arrest was initiated, Agent Bagley and the other two arresting CDDTF agents testified that they had been assisting officers in another county serving search warrants earlier that evening and that the three agents decided that they would “go through some of the clubs” located in Hol-landale before they went home. Bagley testified further that after leaving a club on “Blue Front,” he pulled in behind a parked car in order to investigate what he thought were suspicious circumstances. Chambers himself admitted that he knew Bagley was an officer, and he also testified that he saw Bagley earlier in the evening with Hollandale police officers, as is demonstrated by the following excerpts from Chambers’s testimony at trial:

Q. Well, was there more than one occasion when you saw Mr. Topps? [sic]
A. I seen Bagley when he was up there at Blue Front with the Hollandale police. It was right at the same time, so after Bagley had left, you know, everybody was out there talking.
They was talking about how, you know, Bagley went up in there, and he was talking to some guy, so I had left. My car was already parked over at the construction place.
Q. Mr. Chambers, just to get this very clear, did you at any time shove Bagley in the chest with your hands?
A. No, sir, I did not shove Bagley in his chest at all at nary a time for the simple fact that I knew that he was an officer. I did not. I did not shove him in his chest. I did not make no forces whatsoever.
Q. I believe your statement was that you knew that Stan Bagley was an officer; is that right?
A. Yeah.
Q. You knew where he worked; isn’t that correct?
A. I wasn’t for sure if he still worked there or not. Do you want to ask me some more questions?
Q. I sure do. Thank you, sir....

We find that the record contains substantial evidence that Bagley was acting within the scope of his employment at the time the arrest was made and, further, that Chambers was aware of this fact.

¶ 15. On the question of who initiated the physical confrontation, the State asserts that it was Chambers, while Chambers points to Bagley as being the initial aggressor. In addition to his own testimony, Chambers introduced the testimony of three witnesses to corroborate his version of the events, while the prosecution offered the testimony of Agents Bagley, Branning, and McDaniel to support its position. While we acknowledge that this issue was disputed at trial, it was within the province of the jury to resolve this dispute. Accordingly, it is not for this Court to second guess the jury’s resolution of the conflicting testimony, as it is well established that “the jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Howery v. State, 809 So.2d 761, 763(¶ 7) (Miss.Ct.App.2002) (quoting Meshell v. State, 506 So.2d 989, 991 (Miss.1987)). Apparently, the jury chose to believe the version offered by the State’s witnesses in finding Chambers guilty of resisting arrest. The fact that Chambers produced corroborating witnesses does not preclude the jury from disregarding the testimony of those witnesses. It is well settled that “[t]he ‘testimony of a single uncorroborated witness is sufficient to sustain a conviction ... even though there may be more than one person testifying to the contrary.’ ” Id. at 764(¶ 7) (quoting Williams v. State, 512 So.2d 666, 670 (Miss.1987)).

¶ 16. The State was also required to prove that “Chambers resisted or obstructed his arrest by force, threats, violence, or any other means.” Agent Bran-ning testified that after Chambers struck Bagley in the chest, Bagley “came back forward to place Mr. Chambers under arrest. At that time, Mr. Chambers hit [Bagley] on the left side of his face with a closed fist.” Branning testified further that Branning “tried to detain [Chambers] to get him in handcuffs [but] [h]e was putting up a fierce struggle at the time.” As discussed above, the jury is the trier of fact, and the testimony of Branning, even if contradicted by all of Chambers’s witnesses, was sufficient to support this element of resisting arrest. Drawing all reasonable inferences from Branning’s

testimony, as we must do when reviewing the sufficiency of evidence, we conclude that it was reasonable for a jury to find that Chambers’s “fierce struggle” while the agents attempted to place Chambers in handcuffs amounted to resistance or obstruction of his arrest by “force, threats, violence, or any other means.”

CONCLUSION

¶ 17. We find that Chambers’s assignment of error is without merit. Even if the jury’s verdict finding him guilty of resisting arrest is inconsistent with its verdict finding him not guilty of simple assault on a police officer, this inconsistency, without more, is not grounds for reversal. Our review of the record reveals that the jury was presented with substantial evidence to support Chambers’s conviction of resisting arrest. For these reasons, it was not error for the trial court to deny Chambers’s motion for JNOV. Accordingly, we affirm the judgment of the trial court.

¶ 18. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF RESISTING ARREST AND SENTENCE OF SIX MONTHS IN THE COUNTY JAIL IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The State later amended the indictment to simple assault upon a law enforcement officer.

      . We reiterate that we are not persuaded that Chambers's conviction of resisting arrest in this case is logically inconsistent with his acquittal of simple assault. However, since the rule regarding inconsistent verdicts is applicable in situations where there is no question that a jury’s verdicts are logically inconsistent, i.e., where the defendant is convicted of the compound offense yet acquitted of a predicate offense, we need not resolve this issue. See, e.g., Curry v. State, 939 So.2d 785, 791(¶20) (Miss.2006) (declining to address specific legal issues regarding the interplay between the crimes at issue "[b]ecause reviewing the sufficiency of the evidence provides enough protection against an arbitrary verdict ...).”

      . Bagley testified at trial that, "[a]s far as I know, we're on duty 24 hours a day.” There is nothing in the record to contradict this testimony.

      . Counsel for Chambers objected to the testimony of earlier witnesses when it appeared that their testimony was about to describe what happened during the arrest itself. Chambers’s counsel successfully argued that this testimony was not relevant to the issue of whether Chambers assaulted Agent Bagley. Chambers’s counsel did not, however, assert this objection during Branning’s testimony, nor does the record indicate that Chambers attempted to exclude evidence that Chambers resisted arrest by asserting a continuing objection or through a motion in limine. Furthermore, it was Chambers who requested the jury instruction for resisting arrest during conference on jury instructions.