author: LEE, P.J.,

text:
    Robert E. FORREST, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01383-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.

      Joseph A. Fernald Jr., Brookhaven, attorney for appellant.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
    Before LEE, P.J., ROBERTS and CARLTON, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶1. Robert Forrest Jr. was found guilty in the Circuit Court of Lincoln County of two counts of touching a child for lustful purposes. On Count I, he was ordered to serve fifteen years in the custody of the Mississippi Department of Corrections, with twelve years to serve and three years’ probation. On Count II, he was ordered to serve a five-year suspended sentence and five years’ probation. The sentences were ordered to run consecutively with no possibility of early release or parole. Forrest was also ordered to pay court costs and a $10,000 fine. He must register as a sex offender upon his release from incarceration.

¶ 2. Forrest now appeals, asserting two issues: (1) the verdict is against the overwhelming weight of the evidence, and (2) his sentence was excessive. Finding no error, we affirm.

FACTS

¶ 3. On December 12, 2006, Sheila Hy-num, a part-time deputy with the Lincoln County Sheriffs Department, met with Mary and her parents at the Lincoln County Sheriffs Department. Mary, who was ten years old at the time, told Officer Hynum that her forty-one-year-old uncle, Forrest, had exposed himself to her and fondled her. Mary stated that she spent the night with Forrest and his wife, and Mary slept on an air mattress. According to Mary, when her aunt went to take a shower, Forrest laid down next to her and began rubbing her stomach. He then put his hand down the front of her pants. Forrest denied this'occurred. Forrest and his wife testified that Mary complained of a stomach ache. They asked her if she wanted some medicine, and she declined. Forrest’s wife testified that she left the bathroom door open while she was taking a shower so she could hear Mary and Forrest talking.

¶ 4. Mary related that on another occasion she and Forrest were riding four-wheelers. She told him that she needed to go to the bathroom. She stood on one side of the four-wheeler to urinate, and Forrest went into the woods. When she stood up and turned around, Forrest was exposing himself to her. Mary stated that Forrest told her not to tell her parents. She also stated that Forrest told her that now that she had seen him undressed he could walk around the house naked in.front of her. Forrest denied that he said this or that he intentionally exposed himself to her. Forrest testified that he told Mary to stay on one side of the four-wheeler while he urinated in the woods on the opposite side. He said Mary got up and looked in his direction, and he covered himself as quickly as possible. He said he scolded her for looking on the other side of the four-wheeler. Mary stated that she turned and looked because Forrest was talking to her.

¶5. After interviewing Mary, Officer Hynum contacted the Mississippi Department of Human Services. A family-protection specialist interviewed Mary. Bente Johnson, executive director of the Child Advocacy Center, also interviewed Mary. The interview was recorded on video tape. During the interview, Mary recounted the two incidents described above.

¶ 6. Mary testified at tidal. She again recounted the two incidents described above. She also told of a third incident in which Forrest inappropriately touched her, exposed himself, and rubbed himself against her. Mary’s mother had reported this incident to the, investigators approximately six weeks after the initial investigation took place. During this incident, Mary stated that she was lying in bed between her aunt and Forrest. She normally would have slept on the air mattress, but a friend of Forrest’s child was spending the night and using the air mattress. According to Mary, her aunt was facing the wall doing a crossword puzzle. Mary testified that Forrest put his arm around her and put his other hand in his underwear. He then rubbed his penis on her leg. According to Mary, her aunt told Forrest to get off Mary when she noticed his behavior, but then her aunt turned over and went to sleep. Forrest’s wife denied this occurred.

¶ 7. Mary’s mother and one of Mary’s teachers testified that Mary’s demeanor noticeably changed during the fall of 2006. Mary’s teacher testified that Mary became withdrawn and began to complain about physical ailments. Mary no longer wanted to visit Forrest and his wife, and she became standoffish about leaving her home. She became moody and angry. Forrest’s wife told Mary’s mother that Mary refused to ride the four-wheeler at their house. Mary’s mother found this uncharacteristic of Mary and confronted her about it. When asked why she would not ride the four-wheeler, Mary responded, “I can’t tell you; you’ll die.” Mary later told her mother about the incidents with Forrest. Forrest was found guilty of lustfully touching Mary in the bed and on the air mattress. The jury was not instructed on the incident regarding the four-wheeler.

DISCUSSION

I. WEIGHT OF THE EVIDENCE

¶ 8. Forrest argues that the verdict is not supported by the evidence because the testimony presented by the State was unreliable and contradictory.

¶ 9. The Mississippi Supreme Court has stated the standard of review regarding the weight of the evidence as follows:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.... However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather ... the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Bush v. State, 895 So.2d 886, 844 (¶ 18) (Miss.2005) (internal citations and quotations omitted). A challenge to the weight of the evidence “is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)).

¶ 10. After the initial interview on December 13, 2006, the investigation was delayed until January 2, 2007, because of the holidays. Forrest argues this gave the family an opportunity to embellish the allegations. On February 5, 2007, Mary’s mother reported that Mary had told her that Forrest inappropriately touched her while she, Forrest, and his wife were in bed together. This was the same incident Mary testified to at trial. Forrest argues that this new information was suspect because Mary did not tell Officer Hynum or the social-services investigator about the incident in the bed. Forrest also takes issue with the inability of the child to pinpoint a date when the incidents occurred. When asked how long it had been since the four-wheeler incident happened, Mary indicated it had been “a couple of months.” The indictment states that the time period of the charges was between October 1, 2006, and November 30, 2006.

¶ 11. Forrest argues that Mary’s mother manufactured testimony for Mary, and her own testimony contradicted the other witnesses’ testimonies. Forrest called Phyllis Ravencraft, a family friend, to testify. Ravencraft testified that Mary’s mother approached her in a store sometime after Christmas in 2006. Mary’s mother told Ravencraft not to go to Forrest’s house anymore because Forrest had molested Mary. Ravencraft testified that her children were present in the store as well as Mary. Ravencraft told Mary’s mother that she did not believe her, and Mary’s mother became agitated. Mary’s mother denied this conversation occurred.

¶ 12. The argument presented by Forrest amounts to a conflict in the evidence. “The jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed.” Smith v. State, 3 So.3d 815, 818 (¶ 13) (Miss.Ct.App.2009) (quoting Ford v. State, 737 So.2d 424, 425 (¶ 8) (Miss.Ct.App.1999)).

¶ 13. The jury heard testimony over the course of two days from Mary, Mary’s mother, Forrest, Forrest’s wife, the investigating officers, and other witnesses. Mary was questioned as to why she did not initially tell the investigators about the incident in the bed, and she stated that she had forgotten. The jury also heard Forrest’s argument that Mary’s mother had invented the entire story and that Mary had complied because she was scared of her mother. Weighing the evidence in the light most favorable to the verdict, we cannot find that the trial court abused its discretion in denying the motion for a new trial. The verdict is not against the overwhelming weight of the evidence, and we find that allowing it to stand would not sanction an unconscionable injustice. This issue is without merit.

II. SENTENCE

¶ 14. Forrest concedes that the sentence he received was within the statutory guidelines. However, he argues that because he had no-prior criminal history, he should not have been denied the possibility of early release or parole. This issue was not raised at the time of sentencing. It is well settled that issues not raised before the trial- court are procedurally barred on appeal. Foster v. State, 716 So.2d 538, 540 (¶7) (Miss.1998).

¶ 15. Notwithstanding the procedural- bar, we find that this issue is without merit. Forrest was found guilty of two counts of Mississippi Code Annotated section 97-5-23(1) (Rev.2006), which provides for a sentence of “not less than two (2) years nor more than fifteen (15) years.... ” “Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Hoops v. State, 681 So.2d 521, 537-38 (Miss.1996). Forrest’s convictions carried a possible thirty-year sentence. His sentence of twelve years to serve followed by three years’ probation and a five-year suspended sentence was within the statutory guidelines. Forrest argues that the trial court failed to consider statements from several witnesses asking for leniency at the sentencing hearing. He also argues that the trial court failed to consider that he had no prior crimes on his record. Forrest does not argue that the sentences were disproportionate to the crimes charged. We find Forrest’s arguments, if not procedurally barred, are also without merit. The trial court did not abuse its discretion as Forrest’s sentence was within the statutory guidelines.

¶ 16. As for Forrest’s argument that he should be eligible for- early release or parole, it is statutory that sex-crime offenders are not eligible for early release or parole. Miss.Code Ann. § 47-7-3(l)(b) (Supp.2010) (Sex-crime offenders “shall not be released on parole except for a person under the age of nineteen (19) who has been convicted under Section 97-3-67 ....”) and Miss.Code Ann. § 47-5-139(l)(d) (Rev.2004) (Sex-crime offenders are not eligible for earned-time allowance.). This issue is procedurally barred and without merit.

¶ 17. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, TOUCHING A CHILD FOR LUSTFUL PURPOSES, AND SENTENCE OF FIFTEEN YEARS WITH TWELVE YEARS TO SERVE AND THREE YEARS OF PROBATION, AND COUNT II, TOUCHING A CHILD FOR LUSTFUL PURPOSES, AND SENTENCE OF FIVE YEARS SUSPENDED AND FIVE YEARS OF PROBATION, WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH NO POSSIBILITY OF EARLY RELEASE OR PAROLE, AND TO PAY A $10,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The Court of Appeals declines to identify minor victims of sexual crimes. In the interest of the child's privacy, the minor's name has been substituted with an alias.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Larry Press WELLS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KP-00842-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.

      Larry Press Wells, Appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   KING, C.J.,

for the Court:

¶ 1. At the conclusion of his April 29, 2009, trial, Larry Press Wells was convicted in the Circuit Court of Harrison County of possession of cocaine with intent to transfer and was sentenced as a habitual offender to sixty years in the custody of the Mississippi Department of Corrections (MDOC), without eligibility for probation or parole. Aggrieved, Wells appeals his conviction and sentence, raising nine issues:

I. Whether the circuit court erred by denying his motion for a directed verdict and motion for a new trial;
II. Whether the circuit court erred by allowing the State to amend the indictment, charging him as a habitual offender;
III: Whether the circuit court erred by allowing the State to amend the indictment, charging him as a prior drug offender;
IV: Whether the circuit court erred by allowing the State to amend the indictment multiple times;
V: Whether he was denied his right to a speedy trial;
VI: Whether his sixty-year sentence constitutes cruel and unusual punishment;
VII: Whether the circuit court erred by denying his motion to suppress evidence;
VIII: Whether he received ineffective assistance of counsel; and
IX: Whether there was cumulative error that requires reversal.

Finding no error, we affirm Wells’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 24, 2007, the Gulfport Police Department conducted several undercover drug buys in the Magnolia Grove neighborhood of Gulfport, Mississippi. Undercover police officer Michael Guynes testified regarding what transpired that day with the defendant Wells.

¶ 3. For the undercover operation, Officer Guynes was given a car, $50 in marked bills, a tape recorder, and two crack pipes, which were used as props. Officer Guynes met Wells on the corner of 26th Street and Roberts Avenue and asked Wells for $40 worth of crack cocaine. According to Officer Guynes, Wells then got into the car with him, directed him to an apartment complex, and instructed him to park behind some shrubs. Officer Guynes testified that he gave Wells $40. Then, Wells got out of the car and walked behind the shrubs.

¶4. Officer Guynes testified that when Wells returned, he grabbed a crack pipe and put some of the drugs into it. Officer Guynes asked Wells to give him his share of the drugs. In response, Wells asked Officer Guynes if he wanted to smoke some of the drugs before receiving his share. Officer Guynes told Wells that he did not want to smoke at that time and again asked for his drugs. Wells did not oblige. Next, Officer Guynes gave the take-down signal, alerting the other police officers to arrest Wells.

¶ 5. Officer Mark Joseph testified regarding Wells’s arrest. After hearing the take-down signal, the police officers moved in to arrest Wells. Officer Joseph testified that he opened the passenger’s door of the car, grabbed Wells by his right wrist, pulled Wells to the ground, and handcuffed him. When Officer Joseph handcuffed Wells, he saw a glass pipe, a $20 bill, and a rock-like substance on the ground in close proximity to Wells. Officer Joseph gave these items to Detective Bradley Walker, who marked the evidence and sent it to the Mississippi Crime Laboratory for examination.

¶ 6. John Moran, a forensic scientist for the Mississippi Crime Laboratory, tested the evidence. He testified that the substance was determined to be cocaine, weighing less than a tenth of a gram.

¶ 7. Based on this evidence, a jury in the Harrison County Circuit Court convicted Wells of possession of cocaine with intent to transfer. Prior to trial, the State filed motions to amend the indictment to charge Wells as a habitual offender (filed October 11, 2007) and as a prior drug offender (filed April 24, 2009). The circuit court granted the State’s motions. Accordingly, the circuit court sentenced Wells as a habitual offender-and as a prior drug offender to sixty years in the custody of the MDOC. Wells filed a motion for a judgment notwithstanding the 'verdict (JNOV) or, alternatively, a new trial. The circuit court denied the post-trial motions. Aggrieved, Wells timely filed his notice of appeal.

ANALYSIS

I. Sufficiency and Weight of the Evidence

¶ 8. Wells argues that the verdict is against the overwhelming weight of the evidence, and he argues that there was no evidence that he intended to transfer the cocaine to Officer Guynes. The State argues that the evidence was sufficient for a reasonable jury to find Wells guilty of possession with intent to transfer.

¶ 9. Wells combines his arguments regarding the weight of the evidence and the legal sufficiency of the evidence. Because these are two distinct issues, we discuss each separately.

A. Sufficiency of the Evidence

¶ 10. A motion for a directed verdict and a motion for a JNOV challenge the legal sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶16) (Miss.2005). The circuit court must view all of the credible evidence, which is consistent with the defendant’s guilt, in the light most favorable to the State. See id. at (¶ 17). On appeal, we will not disturb the circuit court’s ruling if “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.’ ” Id. at (¶ 16) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)).

¶ 11. Wells argues that the State failed to prove that he intended to sell, transfer, or distribute drugs as required under Mississippi Code Annotated section 41-29-139(a)(1) (Rev.2009) because: (1) no one saw him purchase the drugs; (2) he already had the drugs on his person; and (3) he did not give Officer Guynes the drugs. Thus, Wells maintains that he could only be guilty of possession of cocaine.

¶ 12. Wells admits that he had possession of cocaine, but he denies that he purchased the- cocaine from another person to sell to Officer Guynes. We find that it is immaterial whether Wells actually purchased the cocaine from a third party. The true inquiry is whether Wells intended to sell, transfer, or deliver the cocaine to Officer Guynes. Wells did not physically transfer any cocaine to Officer Guynes. But “[a] defendant can commit the crime of possession with intent to transfer without having actually transferred any cocaine.” Vaxter v. State, 744 So.2d 846, 849 (1121) (Miss.Ct.App.1999).

¶ 13. Wells assured Officer Guynes that he could obtain $40 worth of cocaine for him and directed Officer Guynes to a location where Wells got out of the car. Wells returned to the car with cocaine, put the cocaine in a crack pipe, and offered it to Officer Guynes to smoke. Viewing this evidence in the light most favorable to the State, we find that a reasonable juror could have found beyond a reasonable doubt that Wells intended to transfer/deliver cocaine to Officer Guynes. Accordingly, we find that the circuit court did not err by denying Wells’s motion for a directed verdict and his motion for a JNOV. This issue is without merit.

B. Weight of the Evidence

¶ 14. A motion for a new trial challenges the weight of the evidence. Bush, 895 So.2d at 844 (¶ 18). On appeal, we will not disturb the circuit court’s denial of a motion for a new trial unless “[the verdict] is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id.

¶ 15. Wells argues that he did not intend to sell, transfer, or distribute any cocaine to Officer Guynes. Instead, Wells claims that he only intended to smoke the cocaine himself. As noted above, although Wells did not physically give Officer Guynes the cocaine, his actions indicated that he intended to do so. Viewing the evidence in the light most favorable to the verdict, we cannot say that the verdict was against the overwhelming weight of the evidence. Accordingly, we find that the circuit court did not err by denying Wells’s motion for a new trial. This issue is without merit.

II. Amendment to the Indictment:

Habitual Status

¶ 16. Next, Wells argues that the circuit court erred by allowing the State to amend his indictment to charge him as a habitual offender. Specifically, Wells argues that the amendment to the indictment failed to specify whether his previous convictions occurred in the First or the Second Judicial District of Harrison County. The State argues that this issue is procedurally barred from review because it was not raised before the circuit court. In the alternative, the State argues that the amendment to the indictment satisfied the requirements of Uniform Rule of Circuit and County Court 11.03(1).

¶ 17. Wells failed to raise this issue before the circuit court. Thus, it is procedurally barred from review. Fannings v. State, 997 So.2d 953, 963 (¶35) (Miss.Ct.App.2008). Despite this procedural bar, we find that Wells’s argument is without merit.

¶ 18. Rule 11.03(1) provides that:

In cases involving enhanced punishment for subsequent offenses under state statutes:
1. The indictment must include both the principal charge and a charge of previous convictions. The indictment must allege with particularity the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous conviction, and the date of judgment.

In Wells’s indictment, the principal offense was listed as possession of cocaine with intent to transfer. The amendment also listed Wells’s two previous convictions: (1) Wells pled guilty in the Circuit Court of Harrison County on May 10, 1993, for felony transfer of a controlled substance and was sentenced to three years; and (2) Wells pled guilty in the Circuit Court of Harrison County on May 10, 1993, for uttering a forgery and was sentenced to three years.

¶ Í9. In accordance with Rule 11.03(1), the habitual portion of Wells’s indictment included the nature of his convictions, the dates of judgment, and the state jurisdiction of those previous convictions. The rule does not require the State to indicate whether the convictions were obtained in the First or the Second Judicial District of Harrison County, and Wells has failed to provide this Court with any authority in support of his argument. Thus, we determine that Wells’s indictment complied with Rule 11.03(1) and sufficiently charged Wells as a habitual offender. This argument is without merit.

III. Amendment to the Indictment: Prior-Drug-Offender Enhancement

¶ 20. Wells argues that the circuit court erred by allowing the State to amend his indictment to charge him as a prior drug offender under Mississippi Code Annotated section 41-29-147 (Rev.2009). Again, Wells argues that the amendment was defective because the State did not specify whether his previous drug conviction was obtained in the First or the Second Judicial District of Harrison County. In addition, Wells argues that'the circuit court did not make an on-the-record finding that he was a habitual offender and a prior drug offender. Wells also argues that the State should have sought the sentence enhancement at the same time that it sought to charge him as a habitual offender.

A. First or Second Judicial District of Harrison County

¶ 21. We addressed Wells’s argument that the State was required to list whether his prior convictions occurred in the First or the Second Judicial District of Harrison County in his previous assignment of error. For the reasons stated above, we find that this argument is without merit.

B. Finding of Habitual and Prior-Drug-Offender Enhancement

¶ 22. “For this Court to affirm an enhanced sentence ..., the trial court’s basis for imposing the sentence must’ appear in the record on appeal.” Short v. State, 929 So.2d 420, 426 (¶ 17) (Miss.Ct.App.2006). Wells argues that the circuit court did not make an on-the-record finding that he was a habitual offender and a prior drug offender. The record belies his assertion.

¶ 23. During Wells’s sentencing hearing, the State presented the circuit court with certified copies of Wells’s pen pack from the MDOC. The pen pack evidenced that Wells had four prior felony convictions — one for uttering a forgery and three for the sale of a controlled substance. The circuit court only allowed the State to amend Wells’s indictment to reflect the two prior convictions the State raised in its motion: (1) Wells pled guilty in the Circuit Court of Harrison County on May 10, 1993, to felony transfer of a controlled substance and was sentenced to three years; and (2) Wells pled guilty in the Circuit Court of Harrison County on May 10, 1993, to uttering a forgery and was sentenced to three years. The indictments for those felonies were included in the pen pack and showed that the charges arose out of separate incidents.

¶ 24. The circuit court noted that Wells had been previously convicted of two felony crimes, had served at least one year for each crime, and had been previously convicted of a drug-related crime; thus, Wells was eligible for a sentence enhancement. Based on the foregoing, we determine that the circuit court made an on-the-record finding that Wells was indeed a habitual offender and a prior drug offender. This argument is without merit.

C. Timing of the Amendment

¶ 25. Wells contends that the State’s amendment to charge him as a prior drug offender was tardy and that the State should have sought this amendment at the same time.that it sought to charge him as a habitual offender. Wells was indicted on October 1, 2007. The State sought to amend Wells’s indictment to charge him as a habitual offender on October 11, 2007. A hearing on the motion was held on November 9, 2007, in which Wells’s trial counsel objected to the amendment. On November 19, 2007, the circuit court entered an order granting the State’s motion to amend the indictment.

¶ 26. Before Wells’s trial, the State sought to amend his indictment to charge him as a prior drug offender on April 24, 2009. A hearing was held on the motion on April 29, 2009, right before opening statements in the case, and Wells’s trial counsel objected to the amendment. At that time, the circuit court orally granted the State’s amendment; the order granting the amendment was later entered the following day on April 30, 2009.

¶ 27. Uniform Rule of Circuit and County Court 7.09 provides, in pertinent part, that “[a]ll indictments may be amended ... to charge the defendant as a habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement....” Such an amendment is allowed so long as “the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” Id. In accordance with Rule 7.09, this Court has held that an amendment requested on the day of the trial to add an enhanced penalty was proper where the defendant was apprised of the charge pending against him, was not unfairly surprised, and was afforded a fair opportunity to present his defense. Williams v. State, 766 So.2d 815, 816-18 (¶¶-5-10) (Miss.Ct.App.2000).

¶ 28. Prior to Wells’s trial, the State had filed motions to amend the indictment to charge Wells as a habitual offender (filed October 11, 2007) and as a prior drug offender (filed April 24, 2009). Before the State sought to enhance his penalty for being a prior drug offender, Wells was aware that he was being charged as a habitual offender. In addition, Wells was aware that one of his previous offenses was a drug-related offense. We find that the amendment to the indictment did not affect Wells’s opportunity to present his defense. Thus, the circuit court did not err by allowing the State to amend Wells’s indictment, charging him as a prior drug offender. This argument is without merit.

IV. Amendment to the Indictment

¶ 29. Wells argues that the circuit court erred by allowing the State to amend his indictment multiple times. However, Wells has failed to provide any relevant authority in support of his position. “When an appellant fails to cite authority for an argument, a procedural bar operates, and this Court is not obligated to consider that argument.” Graves v. State, 914 So.2d 788, 798 (¶ 34) (Miss.Ct.App.2005) (citing White v. State, 818 So.2d 369, 371 (¶ 7) (Miss.Ct.App.2002)). As a result, we find that this argument is procedurally barred from review.

V. Speedy-Trial Violation

¶ 30. Next, Wells argues that he was denied his constitutional right to a speedy trial. The State argues that Wells failed to bring his motion to the circuit court’s attention, and there was no proof of prejudice to the defense.

¶ 31. The Sixth and Fourteenth Amendments to the United States Constitution, along with Article 3, Section 26 of the Mississippi Constitution, guarantee a defendant’s fundamental right to a speedy trial. Thomas v. State, 48 So.3d 460, 474 (¶ 38) (Miss.2010). When determining whether a defendant’s right to a speedy trial has been violated, the circuit court must consider the four factors established by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972): “(1) length of delay, (2) reason for delay, (3) defendant’s assertion of his right to speedy trial, and (4) prejudice to the defendant.” Thomas, 48 So.3d. at 475 (¶41) (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182). “[N]o one factor is outcome determinative.” Bonds v. State, 938 So.2d 352, 356 (¶ 9) (Miss.Ct.App.2006). Because each analysis is fact specific, we will uphold the circuit court’s decision as long as it is supported by substantial evidence. Thomas, 48 So.3d at 474-75 (¶ 39).

¶ 32. Wb must note that the circuit court never ruled on Wells’s motion to dismiss for a speedy-trial violation. Because a speedy-trial violation affects a defendant’s constitutional rights, we will review Wells’s claim to determine whether the circuit court committed plain error by not ruling on Wells’s claim. See Johnson v. State, 9 So.3d 413, 416 (¶8) (Miss.Ct.App.2008). Although we conclude that the circuit court did not err, we will address the merits of Wells’s claim.

A. Length of the Delay

¶ 33. The constitutional right to a speedy trial begins when the defendant is accused of a crime. Felder v. State, 831 So.2d 562, 567 (¶ 8) (Miss.Ct.App.2002). In this case, Wells’s right to a speedy trial began on the date of his arrest — May 24, 2007. Wells was indicted on October 1, 2007. Thereafter, Wells filed a demand for a speedy trial and a motion to dismiss for a speedy-trial violation on October 25, 2007. The circuit court did not rule on Wells’s motion.

¶ 34. A delay of eight months or more between the date of arrest and the trial is considered to be presumptively prejudicial. Poole v. State, 826 So.2d 1222, 1229 (¶ 19) (Miss.2002). Wells’s trial did not begin until April 29, 2009; thus, the delay is presumptively prejudicial. But the Court’s inquiry does not end here.

¶ 35. Thereafter, the following orders/motions were filed:

.1. On November 5, 2007, the trial court entered an order appointing Wells’s trial counsel and resetting the case .for March 10, 2008.
2. The trial court filed a motion and order for continuance on February 18, 2008, to reschedule Wells’s trial date because the judges had can-celled the docket for that week. The case was reset to commence on May 12, 2008.
3. On May 23, 2008, the defense filed a motion for a continuance because Wells was to have surgery. In this motion, Wells stated that he waived his right to a speedy trial from this date until October 6, 2008, the new trial date.
4. October 6, 2008, the defense filed a second motion for a continuance, stating that both judges of the First Judicial District of Harrison County had previously prosecuted Wells. In this motion, Wells stated that he waived his right to a speedy trial from this date until January 26, 2009.
5. On January 29, 2009, the defense and the State filed a joint motion for a continuance, stating that Wells was seeking additional time to subpoena witnesses. Wells stated that he waived his right to a speedy trial from this date until March 23, 2009.
6. The last motion for a continuance was filed by the defense on March 25, 2009, stating that Wells would not be available for medical reasons. In this motion, Wells stated that he waived his right to a speedy trial from this date until April 28, 2009, the new trial date.

¶ 36. Based on our review of the record, the delay attributable to the State is from May 24, 2007, the date of Wells’s arrest, to February 18, 2008, the date of the trial court’s motion and order for a continuance. Because the approximately nine-month delay is presumptively prejudicial, further analysis under Barker is required. Thomas, 48 So.3d at 475 (¶ 43).

B. Reason for the Delay

¶ 37. Any delay attributable to the State will be charged against the State, and any delay attributable to Wells will be charged against him. Poole, 826 So.2d at 1229 (¶ 20). “The State bears the risk of non-persuasion regarding the reason for delay and must show whether the defendant caused the delay or that good cause existed for the delay.” Id. (citing Fleming v. State, 604 So.2d 280, 299 (Miss.1992)).

¶ 38. Because Wells’s motion for a speedy trial was not brought on for hearing, the record is void of any explanation given by the State for the delay from May 24, 2007, to February 18, 2008. But the Court’s review of the record shows that Wells’s trial counsel was not appointed until November, 5, 2007, and the trial was reset to commence on March 10, 2008. We see no evidence of deliberate delay on behalf of the State, and Wells makes no claim of deliberate delay.

¶ 39. The delay from February 2008 to April 2009, when the trial commenced, is fully explained. Aside from the circuit court’s motion for a continuance, Wells filed the remaining motions, and he waived his right to a speedy trial in those motions. “[Wjhen the defendant causes a delay, he cannot complain and obtain relief.” McNeal v. State, 911 So.2d 582, 585 (¶ 10) (Miss.Ct.App.2005). Thus, this factor weighs against Wells.

C. Wells’s Assertion of His Right to a Speedy Trial

¶ 40. “A defendant ‘has no duty to bring himself to trial.... ’ Still he gains far more points under this prong of the Barker test where he has demanded a speedy trial.” Thomas, 48 So.3d at 476 (¶47) (citation omitted). Wells made a demand for a speedy trial on October 25, 2007, approximately five months after his arrest. On the same day, though somewhat premature, Wells filed a motion to dismiss for a speedy-trial violation. Thus, we find that Wells asserted his right to a speedy trial.

D. Prejudice to Wells

¶ 41. When determining whether the defendant suffered prejudice under Barker, this Court weighs the following interests: “(1) the prevention of oppressive pre trial incarceration, (2) limitation of the possibility of impairment of defense, and (3) the minimization of anxiety and concern of the accused.” Id. at 586, 92 S.Ct. 2182 (¶ 14) (quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182). Limiting the possibility of the impairment of the defense is the most important consideration. Bonds, 938 So.2d at 358 (¶ 16).

¶42. Besides Wells’s bare assertions, there is no evidence that persuades this Court that Wells suffered great prejudice due to his pretrial incarceration or from anxiety. Regarding prejudice to the defense, the most important issue, Wells only argues that the delay in trial allowed the State to amend his indictment twice, seeking an enhanced penalty. As previously ruled, we find that the circuit court did not err by allowing the State to amend the indictment. Also, the record shows that Wells’s trial counsel did object and had an opportunity to be heard on both motions to amend the indictment.

¶ 43. After considering the totality of the circumstances surrounding Wells’s speedy-trial claim, we rule that his constitutional right to a speedy trial was not violated. This argument is without merit.

VI. Cruel and Unusual Punishment

¶ 44. Wells argues that the circuit court should have conducted a proportionality analysis because his enhanced sentence of sixty years as a habitual offender and a prior drug offender constitutes cruel and unusual punishment and is clearly disproportionate to the offense. Conversely, the State argues that the circuit court was not obligated to conduct a proportionality analysis because there is no inference of gross disproportionality between Wells’s sentence and the crime charged, and Wells’s sentence is within the statutory limits.

¶ 45. In support of his argument, Wells relies on Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In Solem, the United States Supreme Court set forth three criteria for circuit courts to consider when conducting a proportionality analysis: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Id. at 290-91, 103 S.Ct. 3001. However, “[t]he Solem analysis is applied only in rare cases where ‘a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross dispropor-tionality.’ ” Hudderson v. State, 941 So.2d 221, 224 (¶ 9) (Miss.Ct.App.2006) (quoting Ewing v. California, 538 U.S. 11, 30, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003)). If the sentence given by the circuit court is within the statutory guidelines, it will generally be affirmed. Id. (citing Tate v. State, 912 So.2d 919, 933-34 (¶¶ 50-53) (Miss.2005)).

¶ 46. In Hudderson, this Court affirmed a defendant’s sixty-year sentence for a sale of cocaine conviction because: (1) it was proven that the defendant was a habitual offender and a prior drug offender, and (2) his sentence did not exceed the statutory guidelines. Id. at 224 (¶¶ 8-9). In this case, Wells was charged with possession of cocaine with intent to transfer, which carries a maximum sentence of thirty years in prison. Miss.Code Ann. § 41-29—139(b)(1). The circuit court sentenced Wells as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007), and he met the requirements to be sentenced to the maximum term of imprisonment prescribed for his crime. Wells’s sentence-was also enhanced under Mississippi Code Annotated section 41-29-147 (Rev.2009), which' allows the circuit court' to double the sentence for a subsequent drug offense. Thus, by law, the circuit court was authorized to double Wells’s sentence from thirty years in prison to sixty years in prison.

¶ 47. Because Wells’s sentence does not exceed the statutory limits, we affirm his sentence and find that a proportionately analysis is not required. This argument is without merit.

VII. Motion to Suppress Evidence

¶ 48. Next, Wells argues that the circuit court erred by denying his motion to suppress the videotape documenting his alleged crime because: (1) Officer Guynes did not read Wells his Miranda warnings, and (2) the State did not provide him a transcript of the videotaped conversation.

¶ 49. The admissibility of evidence rests within the circuit court’s sound discretion. Thames v. State, 5 So.3d 1178, 1187 (¶ 28) (Miss.Ct.App.2009). We will not disturb the circuit court’s ruling absent a finding of an abuse of discretion. Id.

¶ 50. Wells contends that the videotape should have been suppressed because Officer Guynes did not read him his Miranda warnings when he returned to the car with the cocaine. However, “the Miranda warnings are required whenever a suspect is actually under arrest.” Griffin v. State, 339 So.2d 550, 553 (Miss.1976) (citation omitted). This appeal involves an undercover drug bust conducted by the police. When Wells returned to the car with the cocaine, he was not under arrest at that time. “Law enforcement officers are under no constitutional duty to call a halt to criminal investigation the moment they have the minimum evidence to establish probable cause.” Id. at 554 (citing Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966)). Thus, there was no obligation for Officer Guynes to give Wells his Miranda warnings as soon as Wells had returned to the car with the cocaine.

¶ 51. Next, Wells argues that the videotape should have been suppressed because the State failed to provide him a transcript of the recording. Officer Guynes testified regarding what transpired during the undercover drug bust, and the videotape was played for the jury. The record suggests that parts of the videotape were inaudible. However, Wells does not claim that he disagrees with any of Officer Guynes’s testimony regarding what transpired during the undercover drug bust. Wells has failed to provide this Court with any authority to support his argument that the State was required to provide a transcript of the recording. “A party’s failure to provide authority for its claims on appeal relieves [the appellate court] from having to consider the issue.” Latiker v. State, 918 So.2d 68, 76 (¶ 19) (Miss.2005).

¶ 52. Hence, we find that the circuit court did not err by denying Wells’s motion to suppress the videotape. This argument is without merit.

VIII. Ineffective Assistance of Counsel

¶ 53. Wells contends that his indictment was defective because the State failed to state in which judicial district of Harrison County his previous convictions were obtained, and the State was allowed to amend his indictment twice. Because Wells’s trial counsel failed to object to these alleged deficiencies in the indictment, Wells argues that his trial counsel was ineffective.

¶ 54. Issues of ineffective assistance of counsel are generally not reviewed on direct appeal. Payton v. State, 41 So.3d 713, 719 (¶ 23) (Miss.Ct.App.2009). But the Court may consider the issues if the following criteria are met: “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial court.” Id. (quoting Graves, 914 So.2d at 798 (¶ 35)).

¶ 55. The record before this Court does not affirmatively show ineffective assistance of counsel of constitutional dimensions, and the parties have not stipulated that the record is adequate to allow this Court to consider the issue. Thus, we dismiss Wells’s claim of ineffective assistance of counsel without prejudice so that he may raise his claim in a properly filed motion for post-conviction relief, if he so chooses.

IX. Cumulative Error

¶ 56. Wells argues that the cumulative effect of the errors of the circuit court is grounds for reversal. Under the cumulative-error doctrine, “individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Thompson v. State, 990 So.2d 265, 270 (¶ 12) (Miss.Ct.App.2008) (quoting Harris v. State, 970 So.2d 151, 157 (¶24) (Miss.2007)). But where the Court does not find any reversible error in part, there can be no reversible error to the whole. Id.

¶ 57. Because we have not found any reversible error in Wells’s case, there can be no reversal based on the cumulative-error doctrine. This issue is without merit.

¶ 58. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF POSSESSION OF COCAINE WITH INTENT TO TRANSFER AND SENTENCE AS A HABITUAL OFFENDER OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE IS. AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ„ CONCUR. IRVING AND ROBERTS, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN . OPINION.


text:
    Carl Douglas NECAISE, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01710-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.

      Carl Douglas Necaise, Appellant, pro se.
    Office of the Attorney General by Scott Stuart, Jackson, attorney for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   KING, C.J.,

for the Court:

¶ 1. On November 7, 2007, the Harrison County Circuit Court revoked Carl Douglas Necaise’s post-release supervision for entering a casino, consuming an alcoholic beverage at the casino, and playing $27,000 at the casino. Necaise filed a motion for post-conviction relief, arguing . that his post-release supervision was unlawfully revoked. The circuit court denied the motion. Now, Necaise appeals arguing that his post-release supervision was unlawfully revoked because: (1) his post-release-supervision conditions did not prohibit him from visiting casinos; (2) he was actually drinking a non-alcoholic beer at the casino; and (3) his friends, not him, used his casino player’s card to gamble. We find that the circuit court erred by revoking Necaise’s post-release supervision because: (1) the prohibition against entering a casino was not listed as a condition of his post-release supervision; and (2) the evidence was insufficient to prove that Necaise more likely than not violated his post-release supervision by drinking an alcoholic beverage. However, we affirm the circuit court’s decision to revoke Necaise’s post-release supervision for misleading the circuit court regarding his inability to pay his supervision fees.

FACTS AND PROCEDURAL HISTORY

¶2. In December 2002, Necaise pled guilty in the Circuit Court of Harrison County to touching a child for lustful purposes. Necaise testified that he was under the influence of alcohol when he touched the child. The circuit court noted that Necaise had two prior felony convictions for driving under the influence, but the circuit court declined to enroll Necaise in an alcohol-treatment program. Necaise was sentenced to twelve years in the custody of the Mississippi Department of Corrections (MDOC), with nine years suspended and three years of post-release supervision. The conditions of Necaise’s post-release supervision stated, in part, that:

(a) Defendant shall hereafter commit no offense against the laws of this or any state of the United States, or of the United States;
(b) Avoid injurious and vicious habits;
(c) Avoid persons or places of disreputable or harmful character;
(d) Report to the supervising officer as directed;
(e) Permit the supervising officer to visit in [his] home or elsewhere;
(f) Work faithfully at suitable employment so far as possible;
(h) Remain within the State of Mississippi unless authorized to leave on proper application ...;
(i) Support dependents;
(J) That I do hereby waive extradition to the State of Mississippi from any jurisdiction'in or outside of the United States where defendant may be found and will not contest any effort by any jurisdiction to return defendant to the State of Mississippi;
(k) Shall pay to the Department of Corrections the sum of $30.00 per month by certified check or money order, until discharged from supervision
(l) .And, further, that defendant shall pay . court costs, $10.00 C.V.C.F., $1,500 fine, pay $100 per month on costs beginning 60 days after release from custody and every thirty days thereafter until all costs are paid in full;
(m) Defendant cannot possess any type of weapon;
(n) Submit ... to any type of breath, saliva or urine chemical analysis test, the purpose of which is to detect the possible presence of alcohol or a controlled substance prohibited or controlled by any law of the State of Mississippi or the United States;
(o) The defendant must register as a sex offender upon release from custody with the Department of Safety.

Because of Necaise’s limited income, the circuit court waived his post-release-supervision fees.

¶ 3. On September 20, 2007, the State filed a petition to revoke Necaise’s post-release supervision on the grounds that: (1) he entered a casino; (2) he consumed alcoholic beverages at the casino; and (3) he spent $27,000 at the casino. A hearing on the matter was held on November 5, 2007. During the hearing, Necaise argued that he had only drank an O’Doul’s, which is a non-alcoholic beer; he had only played the “free play” at the casino; and he had let other people use his player’s card. Ne-caise also argued that: “I was never told that I couldn’t go to the boat, and I never got anything saying that, to the casino [sic].”

¶4. Officer Eugene Dufrene, Necaise’s probation officer, testified that he had smelled alcohol on Necaise’s breath one day; but since he did not have a Breathalyzer, he could not test Necaise. Officer Dufrene testifiéd that this occurrence made him suspicious, and he began to investigate Necaise. During his investigation, Officer Dufrene contacted the Mississippi Gaming Commission and discovered that Necaise had visited the Island View Casino. Officer Dufrene testified that he had obtained evidence, such as videotape and photographs, of Necaise at the casino. He had also obtained Necaise’s player’s card records. Officer Dufrene testified that he had asked several waitresses at the casino whether they served non-alcoholic beer, and the waitresses said that they did not have non-alcoholic beer “because nobody really orders them.”

¶ 5. Finding that Necaise had violated the terms of his post-release supervision, the circuit court revoked Necaise’s post-release supervision and modified his sentence. Necaise’s sentence was modified to nine years in the custody of the MDOC, with seven years suspended, two years of house arrest, and three years of post-release supervision. The circuit court gave Necaise new post-release-supervision conditions. In these new conditions, the circuit court specifically instructed Necaise that he was not to possess or use alcoholic beverages, and he was not to “visit gambling places or associate with persons of bad reputation.” Soon thereafter, Necaise filed a motion to reconsider, and the circuit court denied the motion.

¶ 6. On January 13, 2009, Necaise filed a motion for post-conviction relief. In the motion, Necaise argued that his post-release supervision was unlawfully revoked because his post-release-supervision conditions did not state that he could not visit casinos, and the prohibition bears no relation to his crime. The circuit court denied Necaise’s motion for post-conviction relief. Aggrieved, Necaise timely filed his notice of appeal.

ANALYSIS

¶ 7. “When reviewing a lower court’s decision to deny a [motion] for post-conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” King v. State, 936 So.2d 481, 485 (¶ 13) (Miss.Ct.App.2006) (quoting Gatewood v. State, 909 So.2d 754, 756 (¶3) (Miss.Ct.App.2005)). However, questions of law are reviewed de novo. Id.

¶ 8. Necaise challenges whether his post-release supervision was unlawfully revoked under Mississippi Code Annotated section 99-39-5(h) (Rev.2007). Necaise argues that his post-release-supervision conditions did not state that he could not visit casinos, and the prohibition bears no relation to his crime. Conversely, the State argues that the evidence supports the circuit court’s finding that Necaise more likely than not violated the terms of his post-release supervision because: (1) Necaise failed to avoid injurious and vicious habits; (2) he failed to avoid places of disreputable or harmful character; and (3) he perpetrated a fraud against the circuit court, claiming that he could not pay his supervision fees.

¶ 9. The circuit court is responsible for specifying the terms and conditions upon which post-release supervision or a suspended sentence are contingent. Artis v. State, 643 So.2d 533, 536 (Miss.1994). Mississippi Code Annotated section 47-7-35(1) (Rev.2004) provides the following:

(1) The courts referred to in Section 47-7-33 or 47-7-34 shall determine the terms and conditions of probation or post-release supervision and may alter or modify, at any time during the period of probation or post-release supervision, the conditions and may include among them the following or any other:
That the offender shall:
(a) Commit no offense against the laws of this or any other state of the United States, or of the United States;
(b) Avoid injurious or vicious habits;
(c) Avoid persons or places of disreputable or harmful character;
(d) Report to the probation and parole officer as directed;
(e) Permit the probation and parole officer to visit him at home or elsewhere;
(f) Work faithfully at suitable employment so far as possible;
(g) Remain within a specified area;
(h) Pay his fine in one (1) or several sums;
(i) Support his dependents;
(j) Submit, as provided in Section 47-5-601, to any type of breath, saliva or urine chemical analysis test, the purpose of which is to detect the possible presence of alcohol or a substance prohibited or controlled "by ■any law of the State of Mississippi or the United States;
(k) Register as a sex offender if so required under Title 45, Chapter 33.

The circuit court followed the language of section 47-7-35(1) when constructing Ne-caise’s post-release-supervision conditions, with a few additions.

¶ 10. The circuit court may revoke a person’s post-release supervision “upon a showing that the defendant ‘more likely than not’ violated the terms of [post-release supervision].” Morgan v. State, 995 So.2d 787, 790 (¶9) (Miss.Ct.App.2008) (quoting Younger v. State, 749 So.2d 219, 222 (¶ 12) (Miss.Ct.App.1999)). However, “it is necessary for that court to base its revocation on the violation of the clear terms and conditions of the suspended sentence.” Artis, 643 So.2d at 537.

¶ 11. In Artis, the defendant was convicted of armed robbery and manslaughter. He was sentenced to twenty-five years, with twenty years suspended, on the armed-robbery charge; and he was sentenced to twenty years, with fifteen years suspended on the manslaughter charge, with the sentences ordered to run concurrently. Id. The circuit court did not impose a period of probation. Id. Artis’s probation was later revoked, and he filed an out-of-time appeal, arguing that the revocation was improper because there was no probation period or probation conditions imposed on his suspended sentence. Id. at 535. The Mississippi Supreme Court determined that because the circuit court failed to state explicitly any conditions upon Artis’s suspended sentence, Ar-tis’s suspended sentence could not be revoked. Id. at 585-38.

¶ 12. Artis stands for the proposition that the circuit court must articulate conditions of probation or post-release supervision. Clearly, Artis is distinguishable from this case because absolutely no probation conditions were articulated in Artis, while at least some post-release-supervision conditions were articulated in this case. The question we must answer now is whether these conditions were sufficient to notify Necaise that he could not visit a casino.

¶ 13. There are no Mississippi cases that specifically address whether a prohibition against visiting a casino is an appropriate condition of probation or post-release .supervision. However, there have been at least two instances where a prohibition on casinos or gambling was imposed as a condition of probation. For instance in Leonard v. State, 271 So.2d 445 (Miss.1973), a probationer’s suspended sentence and probation were revoked for numerous violations, including being at a disreputable place — a juke joint where drinking and illegal gambling took place. Id. at 446.

¶ 14. Also in Welch v. State, 958 So.2d 1288, 1291 (¶ 8) (Miss.Ct.App.2007), the circuit court specifically informed the defendant during his guilty plea hearing that his probation could be revoked for visiting a casino. In this case, we take issue with the fact that Necaise was not specifically instructed to avoid casinos. Thus, we look to other jurisdictions for guidance.

A. Prohibited Legal Conduct

¶ 15. In State v. Weisberg, 473 N.W.2d 381, 382 (Minn.Ct.App.1991), the defendant was initially convicted of an illegal gambling-related offense. The circuit court gave him an oral warning not to gamble. Id. at 382-83. But his written sentencing order only stated that he was to remain a law-abiding citizen and to not have any same or similar offenses. Id. Later, the defendant’s probation was revoked after he was acquitted on a charge of sports bookmaking “by reason of mental deficiency.” Id. at 382. The Minnesota Court of Appeals reversed the revocation, finding that while a circuit court may proscribe acts that are not criminal, the defendant was not given adequate warning of the legal conduct which may have been prohibited by the circuit court’s oral warning. Id. at 382-83. The defendant’s written probation conditions were considerably narrower. Id. at 383. This case stands for the proposition that a court may prohibit legal conduct in conditions of probation or post-release supervision. But the condition must be specifically stated to give the defendant proper notice of what conduct is prohibited.

B. Nexus to the Crime

¶ 16. In State v. Hinkle, 344 Mont. 236, 186 P.3d 1279, 1280-81 (¶¶ 1-8) (2008), a youth offender had his probation revoked and was transferred to adult-probation supervision. One of his new probation conditions prohibited him from entering a casino. Id. at 1281 (¶ 9). The defendant argued that the condition was illegal because there was no nexus between his crime — negligent homicide — and the restriction on entry into casinos. Id. at 1282 (¶ 18). The Supreme Court of Montana stated that “a sentencing judge may impose a particular condition of probation so long as the condition has a nexus to either the offense for which the offender is being sentenced, or to the offender himself or herself.” Id. at (¶ 19) (citation omitted). The court noted that the defendant’s conviction of negligent homicide resulted from his mishandling of a firearm, which evidenced “a conscious disregard of a risk involving a gross deviation from a reasonable standard of conduct.” Id. at (¶ 20). Witnesses also testified that the defendant was “reckless and foolhardy, unable to appreciate risks and hazards, and predisposed to pursue perilous ventures.” Id. Based on this evidence, the court ruled that the defendant was “vulnerable to the pitfalls of irresponsible gambling,” making the casino condition appropriate. Id. The difference between Hinkle and this case is that the condition prohibiting Hinkle from entering a casino was specifically stated as one of his nineteen probation conditions. In addition, Hinkle’s casino prohibition was explained as an offender-related condition of probation.

¶ 17. In an unpublished Ohio case, the defendant was participating in a “gambling game” for boaters when his boat struck the victim’s boat, killing the man. State v. Mastronardi, 2002 WL 91280, *1 (Ohio Ct.App. 6 Dist.2002). The defendant was convicted of involuntary manslaughter. Id. at n. 1. He later filed a motion for “shock probation,” which was granted. Id. During the hearing, the circuit court verbally instructed the defendant of his probation conditions, one of which precluded him from frequenting any gambling establishment; and this condition was included in his written probation conditions. Id. The defendant’s probation was later revoked for entering a casino in Ontario, Canada. Id. The defendant challenged the revocation, arguing, in pertinent part, that: (1) the condition was not related to his crime; and (2) a casino is a legal establishment, and it is unlawful to revoke his probation for a lawful act. Id. at *2-3, The court upheld the revocation of probation. On the first issue, the court ruled that the condition was related to the crime because the defendant was gambling when he killed the victim. Id. at ⅜2. On the second issue, the court ruled that “[t]he problem with appellant’s entering the casino is not the legality or illegality of the act, but that he clearly was prohibited by the conditions of his probation from doing so.” Id. at *3. Once again, this case is distinguishable from Necaise’s case because the court in Mastronardi specifically prohibited the defendant from frequenting casinos in the terms of his probation.

C. Adequate Warning

¶ 18. The State maintains that the post-release-supervision condition instructing Necaise to “avoid injurious and vicious habits” and to “avoid places of disreputable or harmful character” sufficiently notified Necaise to stay away from casinos. As the case law indicates, it is appropriate for the circuit court to preclude a defendant from doing a legal act so long as it bears a nexus to his crime of conviction, and he is given adequate notice of the prohibition. But we do not see a nexus between Necaise’s conviction for touching a child for lustful purposes and the prohibition on visiting a casino; and most importantly, the circuit court did not give- Necaise adequate warning that his post-release supervision could be revoked for visiting a casino. The circuit court must put the condition in writing. After revoking Necaise’s post-release supervision, the circuit court specifically included the casino prohibition in Necaise’s new post-release-supervision conditions. Thus, this is a fairly simple task for our circuit courts to complete. Accordingly, we determine that the circuit court’s decision to revoke Necaise’s post-release supervision for visiting a casino was reversible error.

D. Alcoholic Beverages

¶ 19. Because Necaise admitted tliat he was intoxicated when he committed his crime, we rule that there is a nexus between Necaise’s conviction of touching a child for lustful purposes and' his post-release-supervision condition prohibiting him from drinking alcoholic beverages. In its petition to revoke- Necaise’s post-release supervision, the State claimed that Necaise was drinking beer at the casino. Necaise argued that he was drinking O’Doul’s, which is a non-alcoholic beer. Officer Dufrene testified that he asked the waitresses whether they sold O’Doul’s beer, and the waitresses indicated that “nobody really orders them.” Officer Du-frene also provided video evidence and still shots of Necaise at the casino carrying a can. This is not evidence that Necaise was drinking an alcoholic beverage.

¶ 20. As previously stated, the circuit court may revoke a defendant’s post-release supervision upon a showing that the defendant more likely than not violated the conditions of his post-release supervision. Morgan, 995 So.2d at 790 (¶ 9). Because of the State’s lack of evidence, we conclude that the evidence was insufficient to prove that Necaise more likely than not violated his post-release supervision. Thus, we reverse the revocation of Necaise’s post-release supervision on this ground.

E. Waiver of Supervision Fees

¶ 21. Next, we determine that the evidence was sufficient for the circuit court to.revoke Necaise’s post-release supervision on the ground that Necaise misled the circuit court regarding his inability to pay his supervision fees. Because Necaise claimed that he was financially unable to pay his supervision fees, the circuit court waived the fees. According to Necaise’s player’s card records, he gambled nearly $27,000 at the casino. There is no evidence regarding in what time frame the $27,000 was spent. However, during the evidentiary hearing, the following exchange occurred:

COURT: Do you remember June the 29th of '07? Let me just pick one of the dates out in this financial run, Mr. Necaise.
NECAISE: Yes, sir.
COURT: Do you remember being there that day?
NECAISE: Yes, sir.
COURT: Do you remember how much you lost?
NECAISE: Well, I played the free play.
COURT: Well, the free play cost you $2,413.29.

Necaise went on to explain that his friends use his player’s card sometimes. To refute Necaise’s testimony, Officer Dufrene provided the circuit court with video and still shots of Necaise inserting bills into a slot machine. The circuit court expressed its distaste regarding how Necaise claimed that he did not have enough money to pay his supervision fees, but instead spent thousands of dollars at the casino.

¶ 22. Based on our review of the record, we find that the evidence is sufficient to prove that Necaise, more likely than not, misled the circuit court regarding his inability to pay his supervision fees. Thus, we determine that the circuit court did not err by revoking Necaise’s post-release supervision on this ground.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED IN PART AND REVERSED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


author: MAXWELL, J.,

text:
    Keith BOYDA, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01891-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.

      W. Daniel Hinchcliff, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., ISHEE, ROBERTS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. A jury in the Stone County Circuit Court found Keith Boyda guilty of murdering his wife. On appeal, Boyda raises a weight-of-the-evidence argument challenging the jury’s rejection of his insanity defense. We find sufficient evidence supporting the State’s position that Boyda understood right from wrong, including the testimony of two expert witnesses. Finding no merit to Boyda’s remaining arguments that the circuit court committed error in several evidentiary rulings, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On April 26, 2005, Boyda and his wife argued for much of the afternoon in their home in Wiggins, Mississippi. Boyda at some point placed his 9-millimeter pistol in the waistband of his pants and went out to the front porch. Once outside, he fired several rounds from the pistol. He then re-entered the house, pulled his wife from the couch, and fired four 9-millimeter rounds into her shoulder, chest and back. Their fifteen-year-old daughter, Theresa Boyda, witnessed the shooting.

¶ 3. After the shooting, Boyda left the scene in his vehicle with Theresa and brought along a .22-caliber rifle. He made several stops. He first stopped at his neighbor’s house. But when the neighbor threatened to call the police, he drove Theresa to the nearby home of one of her friends, J.C. While there, Theresa told J.C. that Boyda had just shot her mother. Meanwhile, J.C.’s mother, Melissa Scott, overheard Boyda admit to someone on the telephone, “She’s dead. She’s dead.” After hanging up, Boyda told Scott that he had killed his wife. As Boyda was leaving, he told Scott that she “could call the cops now.”

¶4. Boyda and Theresa then departed for Boyda’s mother’s home in ■ Gulfport, Mississippi. Before arriving, Boyda told Theresa that he “was sorry for everything” he had done. Boyda was eventually apprehended by the police at a gas station in D’Iberville, Mississippi.

¶ 5. Four expert witnesses testified about Boyda’s legal sanity. The defense offered two expert witnesses, one in the field of clinical psychology and the other a forensic psychiatrist. Both testified that at the time of the offense, Boyda was M’Naghten insane. In rebuttal, the State offered testimony from two experts — one in forensic psychology and the other in forensic psychiatry. Both testified that Boyda was legally sane when he killed his wife.

¶ 6. The jury convicted Boyda of murder, and the circuit court sentenced him to life imprisonment. On appeal, he argues: (1) the verdict is against the overwhelming weight of the evidence, and (2) the trial court’s evidentiary rulings prevented him from developing his theory of defense.

DISCUSSION

I. Weight of the Evidence

¶ 7. Boyda argues the verdict cannot stand because the weight of the evidence supports that Boyda was M’Naghten insane. He points to the following. First, after Boyda shot his wife in the presence of his daughter Theresa, he asked Theresa, “What should we do about Mommy?” Second,. Boyda’s counsel claims. Boyda “went visiting” with his daughter following the shooting, which no legally sane person would have done. Third, Boyda points to testimony that he talked to the turtles in his yard and that he claimed he “invented the air conditioning in his house,” among other unusual statements, as evidence he was not sane when he shot his wife.

¶ 8. When reviewing a claim based on the weight of the evidence, we evaluate the evidence in the light most favorable to the verdict and “will only disturb [the] verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). We must accept as true all evidence consistent with the defendant’s guilt, along with any reasonable inferences that might be drawn from the evidence. Young v. State, 891 So.2d 813, 821 (¶ 21) (Miss.2005). An appellate court’s authority to grant a new trial based on the weight of the evidence should only “be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18).

A. M’Naghten

¶ 9. Mississippi follows the classic M’Naghten test to determine a criminal defendant’s sanity.

To establish a defense on the ground of insanity, it must be clearly proved that at the time of committing of the act the accused was laboring under such defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing, or (2) if he did know it, that he did not know that what he was doing was wrong. More succinctly, the test for insanity is whether the defendant was unable to distinguish right from wrong at the time the act was committed.

Roundtree v. State, 568 So.2d 1173, 1181 (Miss.1990) (internal citations and quotations omitted). Once the defendant raises a reasonable doubt as to his sanity, the State then must prove the defendant’s sanity beyond a reasonable doubt. Id. The jury determines the issue of insanity. Id. In making its decision, “the jury may accept or reject expert and lay testimony.” Id.

B. Expert Testimony

¶ 10. In Crawford v. State, 787 So.2d 1236 (Miss.2001), the Mississippi Supreme Court held that the jury verdict was not against weight of the evidence where one defense expert found the defendant M’Naghten insane, but the State’s two rebuttal experts found the defendant legally sane. Id. at 1243 (¶¶ 27-30). The supreme court reasoned when “there is testimony on both sides of the issue” of the defendant’s sanity, “a jury’s verdict [on that issue] is essentially conclusive and unreviewable.” Id. at (¶ 29). The court further explained: “[[Institutional and practical considerations mandate that in insanity defense cases, perhaps more than any other, a jury’s verdict ought to be given great respect and deference.” Id.

¶ 11. We are confronted with a similar “battle of the experts.” The defense offered Dr. Erin Skaff, who testified as an expert in clinical psychology, and Dr. Ren-nie Culver, who testified as an expert in forensic psychiatry. Dr. Skaff examined Boyda in July 2006 and diagnosed him as a paranoid schizophrenic. She believed to a reasonable degree of psychological certainty that Boyda did not know right from wrong when he shot his wife. Dr. Culver examined Boyda on April 3, 2006, and reported Boyda had a “psychotic disorder not otherwise specified.” At trial, he agreed with Dr. Skaff that Boyda had paranoid schizophrenia and was M’Naghten insane.

¶ 12. The State called two expert witnesses in rebuttal. Forensic psychologist Dr. Gilbert Macvaugh testified to a reasonable degree of psychological certainty that Boyda did not suffer from a major mental illness, such as schizophrenia, that impaired his ability to distinguish right from wrong. But Dr. Macvaugh explained that Boyda might suffer from paranoid personality disorder or narcissistic personality-disorder. Dr. Macvaugh pointed out that Boyda has never been treated for paranoid schizophrenia for forty years of his life, and it is very unusual for someone Boyda’s age to suddenly develop symptoms. Dr. Reb McMichael testified as an expert in forensic psychiatry, and he largely agreed with Dr. Macvaugh’s opinions. He echoed that Boyda did not have schizophrenia, but rather a personality disorder. Dr. McMi-chael agreed with Dr. Macvaugh that Boy-da knew the distinction between right and wrong when he killed his wife.

¶ 13. Boyda contends the State’s experts had to ignore their own testing, which did not detect malingering of schizophrenia symptoms. Yet Boyda had full opportunity to challenge this alleged inconsistency on cross-examination. Dr. Mac-vaugh explained that just because Boyda did not score in a range to suggest malingering at the time of the exam did not mean that he was not malingering at other times. Dr. Macvaugh’s conclusions were based in part on an interview, which occurred subsequent to the testing. During the interview, Boyda claimed he had no memory of the shooting. However, he told at least two other individuals about it immediately after it occurred, which Dr. Macvaugh concluded suggested malingering. In addition, Dr. McMichael considered notes from a nurse who attended to Boyda at the jail. The nurse’s notes reflected Boyda’s symptoms became “more obvious and dramatic right before a court appearance” and subsided once the court appearance was over, which Dr. McMicha-el found inconsistent with schizophrenia.

¶ 14. Boyda argues his inquiry to his daughter immediately following the shooting concerning what to do about “Mommy” shows convincingly that he was M’Naghten insane. But viewing the evidence in a light most favorable to the verdict, this statement could just as easily be interpreted as a solicitation of advice about the next course of action.

¶ 15. Boyda also claims his behavior after the shooting, which he characterizes as “visiting,” convincingly supports his insanity theory. However, his actions also support an inference of flight. In cases where the defendant has plead insanity, various other jurisdictions have held that a jury may draw an inference of guilt from the accused’s flight immediately following the commission of the crime. See Flenory v. State, 588 So.2d 940, 942 (Ala.Crim.App.1991) (“[T]he conduct of the appellant and his demeanor immediately following the criminal activity can provide an inference of sanity.”); Cunningham v. State, 426 So.2d 484, 490 (Ala.Crim.App.1982) (In insanity cases, “[f]light from justice, and its analogous conduct, [are] deemed indicative of a consciousness of guilt.”); Wallin v. State, 285 Ga.App. 377, 646 S.E.2d 484, 489 (2007) (finding no prejudice in ineffective-assistance-of-counsel claim in part because “flight can serve as evidence of defendant’s consciousness of guilt” in insanity cases) (citation and internal quotations omitted); Welborn v. Commonwealth, 157 S.W.3d 608, 615 (Ky.2005) (In insanity cases, “[fllight and attempt at concealment are circumstantial evidence of guilt because they suggest a guilty state of mind.”).

¶ 16. Following the shooting, Boyda demanded that Theresa, the only eyewitness to the shooting, leave from the scene with him. He armed himself with a .22 rifle, then took Theresa to the nearest neighbor’s house. When the neighbor threatened to call the police, they left. Theresa then suggested that they go to her friend J.C.’s home, hoping that he could help get her out of her predicament. Upon arrival, Boyda admitted to Melissa Scott that he had shot his wife and, notably, told, her that she “could call the cops now.” When Boyda decided to leave, Theresa asked to remain with J.C. and Scott, but Boyda refused her request. Boyda and Theresa then got back on the road.

¶ 17. According to Theresa, Boyda eventually pulled over and stopped the vehicle on a road resembling a “pathway.” Boyda told her, “I’m sorry for everything I’ve done.” After speaking to Theresa for one or two hours, Boyda got back onto the highway to drive to his mother’s house in Gulfport. Police ultimately apprehended him when he stopped at a D’Iberville gas station.

¶ 18. We are not persuaded that' reasonable jurors must have concluded that Boyda’s behavior and statements directly following the shooting evidenced he was legally insane. Rather, the jury was certainly free to reasonably infer that by arming himself with a rifle, leaving the scene, and making several stops, Boyda was conscious of his guilt and was fleeing from the scene. We further note that Boyda apologized to his daughter for “everything,” and he refused to let her, the only eyewitness to the crime, leave, even after she requested to do so.

¶ 19. Given the expert testimony and circumstantial evidence supporting Boy-da’s legal sanity, we find that it was reasonable for the jury to find Boyda guilty of murder. We are unable to say that this is an exceptional case where the evidence preponderates heavily against the verdict. Nor do we find that allowing the verdict to stand would sanction an unconscionable injustice. Therefore, we conclude that the verdict is not against the overwhelming weight of the evidence.

II. Evidentiary Rulings

¶ 20. Boyda next claims the circuit court erred in limiting the testimony of his brother, Kyle Boyda. The excluded testimony pertains to Boyda’s behavior after the April 2005 shooting. Boyda’s trial counsel made an offer of proof, which suggests Kyle would have testified, among other things, that Boyda thought the FBI was trying to poison him and that local officials in Stone County were conspiring against him. Some of the testimony concerns behavior that occurred over four years after the shooting.

¶21. At trial, defense counsel argued this testimony was relevant to the question of whether Boyda had regained his sanity after committing the crime. On appeal, Boyda’s counsel raises a different argument. He now claims the excluded testimony is relevant to whether Boyda was insane when he committed the crime.

¶ 22. This court has held that an argument not raised in the trial court will not be considered on appeal. Dimaio v. State, 951 So.2d 581, 587 (¶ 14) (Miss.Ct.App.2006) (citing Thorson v. State, 895 So.2d 85, 104 (¶ 43) (Miss.2004)) (declining to discuss the merits of the trial court’s refusal of a jury instruction because appellate counsel raised an entirely different argument than trial counsel); Aguilar v. State, 847 So.2d 871, 880 (¶ 23) (Miss.Ct.App.2002) (citing Holland v. State, 587 So.2d 848, 868 n. 18 (Miss.1991)) (argument that the trial court improperly excluded evidence was procedurally barred where the basis of the argument was different on appeal); see also Ponder v. State, 335 So.2d 885, 886 (Miss.1976) (“A trial judge cannot be put in error on a matter which was not presented to him for decision.”); cf. Thompson v. State, 33 So.3d 542, 547 (¶ 15) (Miss.Ct.App.2010) (citing Swington v. State, 742 So.2d 1106, 1110 (¶ 9) (Miss.1999)) (“[A]n objection based on one specific ground waives all other possible grounds.”); Kiker v. State, 919 So.2d 190, 199 (¶ 34) (Miss.Ct.App.2005) (quoting Brown v. State, 682 So.2d 340, 350 (Miss.1996)) (“An objection at trial cannot be enlarged in a reviewing court to embrace an omission not complained of at trial”). The ground on which Boyda wished to admit the disputed evidence was rendered moot by the jury’s guilty verdict. Because his new argument that the evidence is relevant to his sanity at the time of the offense was not before the trial court, it is procedurally barred.

¶ 23. Still we note his claim lacks merit. Kyle, as a lay "witness, was precluded from stating an opinion as to Boyda’s sanity at the time he killed his wife based upon Boyda’s post-shooting behavior. See Baggett v. State, 793 So.2d 630, 635 (¶ 14) (Miss.2001) (quoting Russell v. State, 729 So.2d 781, 786 (Miss.1997)). We point out that Dr. Skaff spoke with Boyda’s brothers and considered information gathered from them in forming her opinions. And Dr. Skaff s testimony largely covered the same behavior included in the proffered testimony. Also, during Dr. Macvaugh’s cross-examination, Boyda’s attorney questioned him about much of this same behavior. Further, Kyle was permitted to testify fully regarding Boyda’s bizarre behavior prior to the shooting. If any error was committed in the exclusion of Kyle’s testimony, it was harmless. Jackson v. State, 594 So.2d 20, 25 (Miss.1992) (A trial court’s “admission or exclusion of evidence must result in prejudice and harm, if a cause is to be reversed on that account.”).

¶ 24. Boyda next claims that he was prejudiced by the State asking “irrelevant” questions about Dr. Skaff not being licensed to practice in Mississippi. However, Boyda’s trial counsel did not object to this line of questioning at trial. Thus, he failed to preserve this issue for appeal. See Jordan v. State, 995 So.2d 94, 111 (¶ 55) (Miss.2008). Boyda also failed to raise this issue in his motion for a new trial, which serves as an additional procedural bar to our review. See Watts v. State, 492 So.2d 1281, 1291 (Miss.1986) (citing Pool v. State, 483 So.2d 331, 336 (Miss.1986)).

¶ 25. Boyda finally contends the circuit court erred by excluding Dr. Skaff s resume. Because Boyda was given ample opportunity to, and did, bolster Dr. Skaff s qualifications through questioning, we find no error in the exclusion of her resume. See Herrington v. Spell, 692 So.2d 93, 103 (Miss.1997), overruled on other grounds Whittington v. Mason, 905 So.2d 1261 (Miss.2005).

¶ 26. Finding no reversible error, we affirm Boyda’s conviction and sentence.

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

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

      . The record is not clear what J.C.’s last name is.

      . See Miss.Code Ann. § 99-13-7(1) (Supp. 2010) ("When any person is indicted for an offense and acquitted on the ground of insanity, the jury rendering the verdict shall state in the verdict that ground and whether the accused has since been restored to his sanity and whether he is dangerous to the community.").