author: CARLTON, J„ ROBERTS, J.,

text:
    Johnny THORPE a/k/a Johnny Patrick Thorpe, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-02116-COA.
    Court of Appeals of Mississippi.
    April 10, 2012.

      Johnny Thorpe, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, Attorney for Appellee.
   CARLTON, J„

for the Court:

¶ 1. Johnny Thorpe appeals the Adams County Circuit Court’s order denying his motion for post-conviction relief (PCR). Aggrieved, Thorpe raises the following assignments of error: whether (1) he was subjected to multiple punishments for the same conduct in violation of the constitutional protections against double jeopardy; (2) he received ineffective assistance of counsel; (3) he entered an involuntary, unknowing, and unintelligent plea; and (4) plain error occurred when he was charged with possession of .1 gram but less than 2 grams of methamphetamine, when the Mississippi Crime Laboratory report failed to specify the amount of methamphetamine found but simply stated “Methamphetamine, Amount: Residue.”

¶ 2. The primary issue raised in Thorpe’s PCR motion addresses whether Thorpe’s criminal conduct of felony possession of a Schedule II controlled substance, methamphetamine, constituted one continuing offense or two separate offenses. However, the record does not contain sufficient factual information to discern whether Thorpe’s conduct constituted only one offense for felony possession of methamphetamine and, if so, whether Thorpe knowingly and intelligently waived any relevant constitutional rights. Finding the record insufficient for appellate review, we must reverse and remand the case to the trial court.

FACTS

¶ 3. On January 14, 2008, an Adams County grand jury indicted Thorpe in cause number 08-KR-0026-B as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2007) on three counts: (1) possession of two or more precursor chemicals or drugs used in manufacturing a controlled substance; (2) manufacturing a Schedule II controlled substance, methamphetamine; and (3) possession of less than .1 gram of a Schedule II controlled substance, methamphetamine. Then, on July 7, 2008, Thorpe was charged, by criminal information in cause number 08-KR-0123-J, as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2007), with possession of a Schedule II controlled substance, methamphetamine, in an amount of .1 gram but less than 2 grams, under Mississippi Code Annotated section 41-29-139(c)(1)(B) (Supp.2011). The following day, on July 8, 2008, Thorpe signed a waiver of indictment for the charge in cause number 123-J.

¶ 4. On the same day, Thorpe pleaded guilty in cause number 123-J to possession of .1 gram but less than 2 grams of methamphetamine. Thorpe also pleaded guilty to count III in cause number 26-B for possession of less than .1 gram of methamphetamine. In exchange for his guilty pleas, the State agreed to drop the “life” habitual-offender charge under section 99-19-88 and also agreed to retire to file several other felony charges pending against Thorpe, including counts I and II of his indictment in cause number 26-B.

¶ 5. The trial court sentenced Thorpe as a habitual offender pursuant to section 99-19-81 to eight years in cause number 123-J, and to a consecutive term of two years in cause number 26-B, both in the custody of the Mississippi Department of Corrections (MDOC). On August 11, 2010, Thorpe filed his PCR motion in cause number 123-J, which the trial court denied. Thorpe subsequently appealed.

STANDARD OF REVIEW

¶ 6. “A trial court’s denial of a PCR motion will not be reversed absent a finding that the trial court’s decision to deny the motion was clearly erroneous.” Smith v. State, 75 So.3d 82, 82 (¶ 3) (Miss. Ct.App.2011) (citation omitted). However, we employ a de novo standard of review when reviewing issues of law. Id (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)).

DISCUSSION

¶ 7. Thorpe argues he was improperly subjected to multiple punishments for the same conduct in violation of the constitutional protections against double jeopardy. Specifically, Thorpe asserts that his charges in both cause numbers 26-B and 123-J arose from a single traffic stop in which he was a passenger in a friend’s vehicle and from the same criminal conduct of possession of methamphetamine.

¶ 8. Thorpe alleges that immediately pri- or to the traffic stop, he scooped methamphetamine out of a coffee filter with a spoon and added drops of water in the spoon to liquify the methamphetamine. Thorpe contends that, after a police car appeared to be in pursuit of the vehicle in which he was a passenger, he used the coffee filter to dab the water from the spoon’s basin. He alleges that he then crumbled and swallowed the coffee filter containing the liquified methamphetamine. Thorpe asserts that he later regurgitated the coffee filter at the hospital after being arrested and subsequently transported to Natchez Regional Medical Center. Thorpe claims that both the spoon and coffee filter contained trace residue amounts of methamphetamine which resulted in his initial indictment and conviction in cause number 26-B for the spoon residue, and the methamphetamine in the coffee filter he swallowed resulted in his subsequent waiver of indictment and conviction in cause number 123-J. Thus, Thorpe contends his conviction and sentence in cause number 123-J resulted in a second punishment for the same conduct for which he received his conviction and punishment in cause number 26-B, one “continuing” single possession of methamphetamine in violation of the Double Jeopardy Clause of the United States Constitution.

¶ 9. “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb[.]” Graves v. State, 969 So.2d 845, 847 (¶ 7) (Miss.2007) (quoting U.S. Const. amend. V). See also Miss. Const, art. 3, § 22. “This guarantee, enforceable against the states through the Fourteenth Amendment, assures three separate protections: (1) protection from a second prosecution for the same offense after acquittal, (2) protection from a second prosecution for the same offense after conviction, and (3) protection from multiple punishments for the same offense.” Graves, 969 So.2d at 847 (¶ 7).

¶ 10. As previously stated, this case concerns the protection against multiple punishments for the same offense, and we must review Thorpe’s claim that he was punished twice for the same felony possession of methamphetamine. However, the record fails to contain sufficient information for this Court to conduct such a review. The record includes Thorpe’s plea petitions in cause numbers 26-B and 123-J and the transcript of the plea hearing. However, neither the two plea petitions nor the plea colloquy reflect a factual basis or facts sufficient to distinguish the two offenses of possession of methamphetamine. Further, the record, including Thorpe’s plea petitions and plea colloquy, fails to show whether Thorpe had been advised of and voluntarily waived his constitutional guarantee against multiple punishments for the same offense. The aver-ments set forth in Thorpe’s pleadings and his own affidavit contained in the record provide the most information regarding the facts of the offenses to which Thorpe entered his guilty pleas.

f 11. “This Court may only act on the record presented to it.” Scott v. State, 24 So.3d 1039, 1041 (¶ 9) (Miss.Ct. App.2010) (citing Oakwood Homes Corp. v. Randall, 824 So.2d 1292, 1293 (¶ 4) (Miss. 2002)). An appellate court must “decide each case by the facts shown in the record, not assertions in the brief.” Id. (citation omitted). Here, we are unable to determine, based on the sparse record before us, whether Thorpe was subjected to double jeopardy, and the record on its face does not reflect whether the offenses arose from separate acts of possession or whether Thorpe’s conduct constituted one felony possession of methamphetamine. Accordingly, because we find this Court does not have before it a record sufficient to resolve the merits of these matters, we must reverse the trial court’s order denying Thorpe’s PCR motion and remand the case to the trial court with instructions to conduct an evidentiary hearing. After conducting the evidentiary hearing, the trial court should determine whether Thorpe received multiple punishments for the same criminal conduct in contravention of the double-jeopardy constitutional provisions, and if so, whether Thorpe knowingly and intelligently waived such rights. Because we find the resolution of Thorpe’s additional assignments of error stem from his double-jeopardy claim, we decline to address these additional matters in our discussion.

¶ 12. THE JUDGMENT OF THE ADAMS COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE AND RUSSELL, JJ., CONCUR. ROBERTS, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MAXWELL AND FAIR, JJ.

ROBERTS, J.,

dissenting:

¶ 13. I respectfully dissent. The majority concludes that the record “does not contain sufficient factual information to discern whether Thorpe’s conduct constituted only one offense for felony possession of methamphetamine....” I disagree; therefore, I see no need in reversing the circuit court and ordering an evidentiary hearing. Assuming all Thorpe’s claims in his PCR petition and attached affidavits and exhibits to be true, established double-jeopardy jurisprudence indicates that two separate criminal offenses of possession of a controlled substance occurred in this case. First was the possession of methamphetamine in an amount of .1 gram or less; second was possession of methamphetamine in an amount of .1 gram but less than 2 grams.

¶ 14. Mississippi Code Annotated section 99-39-11(1) (Supp.2011) requires a circuit judge to promptly examine “[t]he original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attaek[.]” If the circuit judge concludes that 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 [circuit] judge may make an order for its dismissal and cause the petitioner to be notified.” Miss.Code Ann. § 99-39-11(2) (Supp.2011). Such an examination is equivalent to the inquiry under Mississippi Rule of Civil Procedure 12(b)(6): assuming everything in the complaint to be true, does the complaint state a claim upon which relief can be granted? In the current case, the circuit judge concluded:

The defendant was stopped on an outstanding warranty and ... the drugs which were the basis for the criminal information in 08-KR-0123-J were ingested and recovered. There were other drugs in defendant’s ear. [Thorpe] admitted this was correct. There is no basis for [Thorpe’s] assertion of double jeopardy or an unknowing or unintelli-gently entered plea.

I submit that the circuit judge was imminently correct in his legal conclusion that no double-jeopardy violation occurred.

¶ 15. First, it is significant to state exactly what the record in this case discloses. Thorpe filed his PCR petition on April 4, 2011. In his signed petition, Thorpe included two sworn affidavits signed by him. These affidavits set out, in detail, the underlying facts as claimed by Thorpe. Additionally, Thorpe attached numerous exhibits including, the following documents: (1) Michael Dossett’s statement; (2) the Natchez-Adams Metro Narcotics Unit Case Report, including numerous exhibits; (3) Mississippi Crime Lab submission sheet for evidence, including the spoon, and the corresponding Mississippi Crime Lab analysis results sheet; (4) a second Mississippi Crime Lab submission sheet for the coffee filter and the corresponding Mississippi Crime Lab analysis results sheet; (5) the search warrant for Thorpe’s home; (6) photocopies of pictures taken showing evidence discovered; (7) a certified copy of Thorpe’s indictment in cause number 08-KR-0026-B, which involves the methamphetamine found on the spoon; (8) Thorpe’s medical record from the Natchez Regional Hospital; (9) a copy of Thorpe’s petition to enter a guilty plea to the indictment in cause number 08-KR-0026-B, involving the spoon; (10) a copy of the criminal information in cause number 08-KR-0123-J, involving the coffee filter; (11) a copy of Thorpe’s waiver of indictment in cause number 08-KR-0123-J; (12) Thorpe’s guilty plea and sentencing order in the two cause numbers; (13) Thorpe’s transcribed plea colloquy from the Adams Count Circuit Court; (14) a copy of the circuit court’s order summarily denying Thorpe’s PCR petition.

f 16. Relying on the documents described above, it is necessary to provide additional facts in order to address Thorpe’s double-jeopardy claim. Thorpe and Dossett were friends and were together on the night of November 14 and early morning on November 15, 2007. Thorpe, a self-professed methamphetamine addict, had acquired a quantity of methamphetamine at Dossett’s home. Thorpe carried his methamphetamine in a coffee filter to preserve its flavor. He asked Dossett for a ride home, and Dossett agreed to drive him home. En route to Thorpe’s home, Thorpe used his “special spoon” to mix water with the methamphetamine in the coffee filter in order to consume the drugs. Unbeknownst to Thorpe, police had obtained a search warrant for Thorpe’s home and vehicle to search for methamphetamine and any paraphernalia or precursors necessary to manufacture methamphetamine. When police arrived at Thorpe’s home, he was not there; however, a person present in the home instructed officers that Thorpe was in a white Chevrolet truck belonging to Dossett. Police located Dossett’s truck and initiated a traffic stop right after Thorpe had begun mixing his methamphetamine. Thorpe saw the officers approaching the truck and hastily attempted to clean off the spoon using the coffee filter. He then swallowed the coffee filter and put the spoon in a black, nylon bag in the back of Dossett’s truck. Dossett consented to a police search of his truck in which police discovered Thorpe’s spoon with a milky substance dried, on the bottom. Thorpe admitted that the spoon was his. Police arrested Thorpe on an unrelated, pre-ex-isting shoplifting warrant and for the suspected drug residue found on the spoon. A subsequent search of Thorpe produced a syringe with a methamphetamine-like substance and other methamphetamine precursors and pills. Police transported Thorpe to the jail; however, before they arrived, Thorpe informed police that he had swallowed approximately four grams of methamphetamine and was feeling ill. He was taken by ambulance from the jail to the hospital where physicians administered vomit-inducing medication. At approximately 2:35 a.m., Thorpe regurgitated the coffee filter, and the police officer present took the coffee filter into evidence. At no point during the investigation did Thorpe provide the police with a formal statement. Dossett was given his Miranda warnings and agreed to have the police search his home. Police discovered precursor chemicals to manufacture methamphetamine in Dossett’s home. Dossett admitted that the chemicals were used by Thorpe to manufacture methamphetamine and that he and Thorpe had purchased the various precursors within the last five days. Police sent the evidence to the Mississippi Crime Lab where both the spoon and, later, the coffee filter tested positive for methamphetamine. The results sheet for the spoon was dated December 7, 2007; however, the results sheet for the coffee filter was not completed until over a month later on January 28, 2008.

¶ 17. On February 22, 2008, Thorpe and Dossett were jointly indicted in cause number 08-KR-0026-B in a three-count indictment charging them with the following: one count of possession of two or more precursor chemicals used in the manufacture of a controlled substance; one count of manufacturing a Schedule II controlled substance known as methamphetamine; and one count of possession of a quantity of Schedule II controlled substance known as methamphetamine in an amount less than .1 - gram. Thorpe was charged as a life-sentence habitual offender under Mississippi Code Annotated section 99-19-83 due to two prior felony convictions and sentences in Louisiana for attempted manslaughter and distribution of marijuana in Louisiana and two more felony convictions and sentences in Franklin County, Mississippi, for attempted theft of anhydrous ammonia and assault on a law enforcement officer. Thorpe was also under indictment for an unrelated case in cause number 07-KR-0134-A.

¶ 18. It appears from a reading of the record that Tim Cotton, Thorpe’s attorney, attempted to obtain a plea agreement disposing of all of Thorpe’s pending criminal charges. He was successful in doing so. In exchange for Thorpe’s pleading guilty to possession of the residue found on the spoon, waiving indictment for possession of the methamphetamine on the coffee filter, and pleading guilty to possession of the methamphetamine on the coffee filter, the State agreed to dismiss the other two counts in his indictment in cause number 08-KR-0026-B, dismiss an unrelated indictment in cause number 07-KR-0134-A, and significantly reduce the habitual offender charge to that under Mississippi Code Annotated section 99-19-81. Stated differently, instead of facing the possibility of receiving five mandatory life sentences as a habitual offender under Mississippi Code Annotated section 99-19-83, Thorpe could plead guilty under the agreement and reduce his possible maximum, mandatory prison sentence to twelve years (eight years for the coffee filter and four years for the spoon residue). In fact, Thorpe received only a total of ten years: eight years for the coffee filter and two years for the spoon residue. Of interest, Thorpe claims he was punished twice for the same offense of possession of methamphetamine, but in his PCR petition, he attacks the validity of only his coffee-filter possession which carried the longer eight-year sentence. Of further interest is that in Thorpe’s guilty-plea petition to the coffee-filter charge, he stated, under oath, that: “I believe that my lawyer is fully informed on all such matters. My attorney has advised me of the nature of the charge(s) and the possible defenses that I may have to the charge(s).” Obviously a valid double-jeopardy violation is a possible defense to the coffee-filter charge; yet Thorpe waived any such defenses when he agreed to plead guilty. Additionally, in Thorpe’s waiver of indictment and agreement to proceed on the bill of information, Thorpe stated, under oath, the following:

I am represented by ... counsel who has conferred with me and advised me as to the nature of the charge against me, and who has fully advised me of my rights regarding this charge, and I am freely and voluntarily executing this waiver with his approval and consent, and upon his advice.

In an almost comical conclusion to the plea colloquy before the circuit judge, we find this exchange between Thorpe and the circuit court:

THE COURT: Does the defendant have anything he cares to state either himself or through his attorney or anyone else?
THE DEFENDANT: Yes sir, I’d just like to apologize from coming back into your court again. I’ve been before you a few times and it seems like I just can’t keep from coming before you. I just want you to know — I just want to say that I didn’t plan to go and do this. I just got back on dope. I’m sorry. I appreciate you not giving me life. That’s all I have to say.
THE COURT: That’s what you were facing on one of these indictments.
THE DEFENDANT: I understand. I just — you know, I just wanted to apologize and thank you, and that’s all.

¶ 19. The double-jeopardy provisions of the United States Constitution and the Mississippi Constitution protect individuals from a second prosecution after conviction, a second prosecution after acquittal, or multiple punishments for the same offense. Thomas v. State, 711 So.2d 867, 870 (¶ 14) (Miss.1998). At issue in the current case is the double-jeopardy protection that prohibits an individual from being punished multiple times for the same offense. Thorpe’s primary argument is the sentence he received for the methamphetamine found in the coffee filter violated his constitutional right to be free from double jeopardy. He asserts that his charges arose from a single traffic stop and a single act of possession because he actually possessed only one amount of methamphetamine since the spoon residue and the amount on the coffee filter were from same source of methamphetamine. I disagree with Thorpe’s assertion and would find that there is no double-jeopardy issue in this case. The subsequent discovery of the methamphetamine in the coffee filter was after Thorpe was arrested, albeit only a few hours or less after the discovery of the methamphetamine on the spoon; therefore, these are two distinct possessions of two distinct amounts of methamphetamine.

¶ 20. When analyzing a double-jeopardy claim, Mississippi unequivocally applies the “same-elements” test outlined in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). “The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304, 52 S.Ct. 180 (citations omitted). If the two offenses cannot survive the Blockburger test, then double jeopardy has been violated. I find that since this is not a double-jeopardy issue as Thorpe asserts, the same-elements test from Blockburger is not applicable.

¶ 21. I submit that Thorpe’s argument is better described as an issue of multiplicity. Multiplicity occurs when a single offense is charged in several counts leading to the possibility of multiple punishments for a single crime. This is precisely what Thorpe is arguing. Thorpe was first charged with the violation of Mississippi Code Annotated section 41-29-139(c)(l)(A) for the methamphetamine residue found on the spoon. Section 41-29-139(c)(l)(A) provides that “[i]t is unlawful for any person knowingly or intentionally to possess any controlled substance ... [in an amount] [l]ess than one-tenth (0.1) gram or one (1) dosage unit or less.... ” For the methamphetamine found on the coffee filter, Thorpe was charged with violating Mississippi Code Annotated section 41-29-139(c)(1)(B), which states: “It is unlawful for any person knowingly or intentionally ... to possess any controlled substance ... [in the amount of] one-tenth (0.1) gram but less than two (2) grams or two (2) dosage units but less than ten (10) dosage units.... ” Thorpe asserts that the weight of methamphetamine found on the filter and the methamphetamine residue found on the spoon should have been considered in the aggregate when charging him because the methamphetamine found on the spoon and the coffee filter were from the same original source. The elements of the crime in both charges would be the same under a Blockburger analysis because the charges stem from violations of the same statute; however, “[t]he test for multiplicity is whether each count ‘requires proof of an additional fact which the other does not.’ ” United States v. Garlick, 240 F.3d 789, 795 (9th Cir.2001) (quoting Blockbur- ger, 284 U.S. at 304, 52 S.Ct. 180). Although each count implicates Thorpe violated the same statute, Thorpe was found in possession of two distinct amounts of methamphetamine at two different times and in two distinct places. On Thorpe’s own volition, motivated by his desire to conceal the methamphetamine from police, he separated the methamphetamine into two distinct amounts of methamphetamine. Additionally, he separated them in distance since one amount was found on the spoon in the truck and the other was later recovered from Thorpe in the hospital several hours later. Simply put, the methamphetamine at issue in this case was found in two distinct amounts at two separate times and at two separate locations making the possession of methamphetamine two distinct offenses. As for Thorpe’s argument that the methamphetamine residue on the spoon was from the same batch of methamphetamine found in the coffee filter, there is simply no way to determine that the methamphetamine on the spoon was, in fact, originally part of the methamphetamine in the filter. Thorpe acknowledged that he frequently used this particular spoon, so much so that he nicknamed this spoon, to prepare his methamphetamine; therefore, it is simply an impossibility to determine if the residue found on the spoon came exclusively from the coffee filter or from a prior use of the spoon on another occasion. If Thorpe had elected to go to trial, the State would have had to prove two separate sets of facts in regard to the two possessions of methamphetamine; therefore, I submit that there is no issue of multiplicity.

¶ 22. In Dixon v. State, 465 So.2d 1092, 1094 (Miss.1985), Randy Dixon was charged in a five-count indictment for the following crimes: Possession of a Schedule II controlled substance (methaqual-one), possession of a Schedule II controlled substance (meperdine), possession of a Schedule II controlled substance (sec-obarbital), possession of a Schedule IV controlled substance (diazepam), and possession of Schedule IV controlled substance (ethchlorvynol). He was found guilty on all five counts. He was sentenced to three years on each count of possession of a Schedule II controlled substance and one year on each count of possession of a Schedule IV controlled substance. Id. His sentence totaled eleven years. Police executed a search warrant for Dixon’s home to look for drugs, and when they arrived and Dixon opened the door, Dixon immediately put his hands in his pockets. Id. Police grabbed Dixon’s hand and found tablets of drugs or other contraband. Id. Shortly thereafter, Dixon requested to retrieve some cigarettes from his car, and a police officer escorted Dixon to his car. Id. at 1095. Dixon moved the car’s floor mat and the police officer saw other drugs under the car’s gas pedal. Id. at 1095. Based on the items found on his person and in his car, Dixon was charged with the above crimes. Dixon appealed his conviction and raised multiple issues. Specifically, he argued that his indictment was defective. Id. at 1094. The Mississippi Supreme Court acknowledged that “the essential elements of the crimes [of possession of a controlled substance] are the same, the only difference being in the maximum sentences. Our research has revealed no case reversed simply because the charges carried different punishments.” Id. at 1096-97. Further, “the two groups of charges carried different maximum punishments[;] the trial court recognized this by sentencing Dixon separately on each conviction.” Id. at 1097. This is precisely what the circuit court did in Thorpe’s case. The circuit judge recognized that Thorpe was charged with two possessions of two different amounts of a controlled substance and that these amounts carried differing maximum punishments. As such, Thorpe was sentenced separately for each of his possessions.

¶ 23. Additionally, although not binding on this Court, the Supreme Court of Kentucky has addressed a very similar issue. In Williams v. Kentucky, 336 S.W.3d 42, 45 (Ky.2011), Denver Ray Williams pled guilty to two counts of drug trafficking and one count of tampering with physical evidence. Williams was discovered with nineteen grams of cocaine during a controlled-drug buy, and after his arrest, he was caught attempting to swallow a plastic bag containing more cocaine. Id. at 44. He ultimately claimed that his sentence for the two drug trafficking charges was a violation of his double-jeopardy rights. Id. Kentucky’s Constitution reads similarly to Mississippi’s; however, Kentucky has a statute further elaborating on its double-jeopardy protections. The statute states:

When a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense when the offense is designed to prohibit a continuing course of conduct[,] and the defendant’s course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.

Id. at 45. (citation omitted). The Kentucky Supreme Court held that Williams “possessed two discrete quantities of cocaine — the quantity found in the car and the quantity that he tried to swallow while in the back of the cruiser.” Id. They further stated that:

Even if we assumed, solely for the sake of argument, that the cocaine that Williams tried to swallow was part of the same stash of cocaine as that found in the vehicle — each portion of cocaine assumed to be part of a single quantity of contraband — Williams is still not entitled to relief because his possession of the cocaine that he tried to swallow came after the interruption of the legal process, his arrest.

Id. Williams is factually similar to this case. Here, Thorpe was discovered possessing the methamphetamine on the spoon. He was then arrested and placed in custody in the police cruiser. It was not until hours later at the hospital when Thorpe regurgitated the contents of his stomach that police officers discovered he had swallowed an additional amount of methamphetamine. Therefore, Thorpe’s possessions were also interrupted by legal process (i.e. an arrest).

¶ 24. The State’s brief cites to numerous cases to support its primary argument that a voluntary and intelligent guilty plea waives all non-jurisdictional rights or defects incident to trial. See Bishop v. State, 812 So.2d 934, 945 (Miss.2002); Reeder v. State, 783 So.2d 711 (Miss.2001); Anderson v. State, 577 So.2d 390, 391 (Miss.1991); Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). The State also acknowledges the recent supreme court case of Rowland v. State, 42 So.3d 503, 505 (¶¶ 4-5) (Miss.2010), in which Robert Rowland’s PCR petition claiming a double-jeopardy violation was originally dismissed because it was time-barred under Mississippi Code Annotated section 99-89-5(2). The supreme court reversed and remanded the case for an evidentiary hearing on the ground that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act] UP-CCRA.” Id. at 506 (¶ 9). Rowland, however, did not overrule the principle that a voluntary and intelligent plea waives all non-jurisdictional rights or defects incident to trial. In a footnote, the supreme court did briefly address this issue by quoting the following language: “a plea of guilty to a charge does not waive a claim that— judged on its face — the charge is one which the State may not constitutionally prosecute.” Id. at 505 n. 4 (quoting Willie v. State, 738 So.2d 217, 219 (Miss.1999)). However, the crux of Rowland has no bearing on the case before us because the current case does not involve a procedural bar, and the existing record is quite adequate to properly evaluate the validity of Thorpe’s double-jeopardy claim. I would affirm the circuit court.

MAXWELL AND FAIR, JJ„ JOIN THIS OPINION.

      . We note that Thorpe alleges his trial counsel rendered ineffective assistance by advising him to enter guilty pleas to charges that subjected him to double jeopardy in violation of his constitutional rights.

      . See generally Rowland v. State, 42 So.3d 503 (Miss.2010).

      . Dossett was the owner and driver of the white Chevrolet truck in which Thorpe was a passenger the night of his arrest.

      . In United States v. Ansaldi, 372 F.3d 118, 125 n. 3 (2d Cir.2004) (internal citations omitted), the United States Court of Appeals for the Second Circuit held:
      Ordinarily, courts apply the so-called "Blockburger test,” to determine whether or not two charged offenses constitute different crimes. That analysis is inappropriate in this case, because there is only one statute at issue, and so, nothing to compare. Rather than determining whether one act falls within two distinct statutes, as in Blockburger, we are asking whether two acts constitute one statutory offense.


source: Caselaw Access Project

author: ISHEE, J„

license: Public Domain

text:
    Marcus VAUGHN, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00176-COA.
    Court of Appeals of Mississippi.
    April 10, 2012.

      Marcus Vaughn, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   ISHEE, J„

for the Court:

¶ 1. In 2008, Marcus Vaughn pleaded guilty in the Tunica County Circuit Court to one count of manslaughter and one count of possession of a firearm by a convicted felon. For the manslaughter conviction, the circuit court sentenced him as a habitual offender to twenty years in the custody of the Mississippi Department of Corrections (MDOC). The circuit court also sentenced him to ten years in the custody of the MDOC for possession of a firearm by a convicted felon, with the sentence to run consecutively to his twenty-year sentence for manslaughter. In 2009, Vaughn filed a motion for post-conviction relief (PCR) in the circuit court, which was denied. Aggrieved, he appeals claiming (1) the circuit court erred in failing to grant an evidentiary hearing on his PCR motion; (2) his guilty pleas were not entered voluntarily and intelligently; and (3) he received constitutionally ineffective assistance of counsel. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In February 2008, Vaughn was indicted by a grand jury in the circuit court as a habitual offender for the murder of Troyze Woodard and as a non-habitual offender for possession of a firearm by a convicted felon. Vaughn had been convicted of four prior felonies, including two convictions for possession of illegal narcotics and two convictions for automobile burglary. During plea negotiations, the State offered Vaughn a reduction on his murder charge to reflect a charge for manslaughter instead. Vaughn claims his attorney advised him that under a manslaughter charge, the maximum sentence would be twenty years in the custody of the MDOC, but that he would be eligible for early release after serving eighty-five percent of his ultimate sentence. Vaughn also asserts his attorney told him he would be mandatorily sentenced to the ten-year maximum sentence for possession of a firearm by a felon.

¶ 3. Vaughn pleaded guilty in the circuit court to manslaughter as a habitual offender and possession of a firearm by a felon. Because he was a habitual offender, he received a mandatory twenty-year sentence in the custody of the MDOC without the possibility of parole, probation, or any early release for the manslaughter charge. He received ten years in the custody of the MDOC for possession of a firearm by a felon, to be served consecutively to his twenty-year sentence.

¶ 4. In 2009, Vaughn filed a PCR motion in the circuit court claiming, among other things, his attorney improperly advised him as to the possibilities of his sentence. The PCR motion was denied. Aggrieved Vaughn appeals, asserting the circuit court erred by failing to conduct an evidentiary hearing on his PCR motion; his guilty pleas were not voluntarily and intelligently entered; and he was denied effective assistance of counsel. Finding no error, we affirm.

DISCUSSION

I. Evidentiary Hearing

¶ 5. We will not overturn a circuit court’s denial of a PCR motion unless its factual findings are clearly erroneous. Russell v. State, 44 So.3d 431, 434 (¶ 5) (Miss.Ct.App.2010) (citation omitted). When analyzing a PCR motion, the circuit court must “review the ‘original motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack’ to determine whether the defendant has proven the merit of the allegations by a preponderance of the evidence.” Id. at 434 (¶ 6) (quoting Cross v. State, 964 So.2d 535, 537 (¶ 8) (Miss.Ct.App.2007)). “An evidentiary-hearing is not necessary where the allegations in a petition for post-conviction relief are specific and conclusory. An evidentia-ry hearing in [such a] case will not reveal anything which has not been adequately presented in [the] petition.” Cole v. State, 666 So.2d 767, 777 (Miss.1995) (citation omitted). “The trial court is not required to grant an evidentiary hearing on every petition it entertains.” Byrne v. State, 30 So.3d 1264, 1266 (¶ 7) (Miss.Ct.App.2010) (quotation omitted).

¶ 6. Here, the circuit court’s order denying Vaughn’s PCR motion reflects that the circuit court analyzed Vaughn’s motion and all pertinent documents before ruling against his claim. In the ten-page order, the circuit court cited passages from Vaughn's plea-hearing transcript and specific quotes from his PCR motion. It is evident from the circuit court’s detailed analysis that the court properly reviewed Vaughn’s case before denying his PCR motion.

¶ 7. Furthermore, the circuit court determined that Vaughn clearly failed to establish a prima facie case for his allegations. In so concluding, the circuit court again used Vaughn’s direct quotes from his plea hearing and PCR motion in determining that he could not support his claims. Likewise, our review of the record negates a showing that an evidentiary hearing was required. This issue is without merit.

II. Guilty Pleas

¶ 8. When reviewing the volun-tariness of guilty pleas, an appellate court “will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.” Walton v. State, 16 So.3d 66, 70 (¶ 8) (Miss.Ct.App.2009) (quoting House v. State, 754 So.2d 1147, 1152 (¶ 24) (Miss.1999)). Additionally, “[t]he burden of proving that a guilty plea is involuntary is on the defendant and must be proven by [a] preponderance of the evidence.” Id. (quotation omitted). “To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.” Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009) (citation omitted).

¶ 9. Vaughn argues his attorney misinformed him as to the amount of time he would ultimately serve in prison and, thus, he did not enter his guilty plea voluntarily and intelligently. Vaughn claims he was told he would be eligible for early release after serving eighty-five percent of his twenty-year sentence for manslaughter, but that he would have to serve his entire ten-year sentence for illegally possessing a firearm. The record reflects differently. Vaughn was sentenced to twenty years for manslaughter as a habitual offender and cannot, under the habitual offender statute, be granted an early release. See Miss.Code Ann. § 99-19-81 (Rev.2007). However, once he completes his sentence for the manslaughter conviction, he may be eligible for early release on the ten-year consecutive sentence for possession of a firearm by a felon. As such, Vaughn’s total thirty-year sentence may be eligible for reduction after he serves twenty years.

¶ 10. Vaughn alleges he was told by his attorney that he would be eligible for early release on the twenty-year sentence for manslaughter. In support thereof, Vaughn attached to his PCR motion affidavits from his mother and his sister alleging Vaughn’s attorney told one or both of them that Vaughn would be eligible for early release on the twenty-year sentence. Vaughn then compares his case to Myers v. State, 583 So.2d 174 (Miss.1991).

¶ 11. In Myers, Timothy Myers was indicted for aggravated assault and advised by his attorney that if he took the case to trial, he would likely receive a sentence of twenty-five years but if he pleaded guilty he would receive less than twelve years. Id. at 175. After Myers pleaded guilty, the circuit judge sentenced him to sixteen years in the custody of the MDOC. Id. Myers filed a PCR motion and attached affidavits from his mother and sister, who were present in the meeting with Myers’s attorney when he was informed he faced up to twenty-five years in the custody of the MDOC if he went to trial but less than twelve years in the custody of the MDOC if he pleaded guilty. Id.

¶ 12. In reversing and remanding Myers’s case for further proceedings, the Mississippi Supreme Court stated: “The relevant distinction is between a ‘generalized prediction’ and a ‘firm representation’ of such lesser sentence.” Id. at 177 (quoting Sanders v. State, 440 So.2d 278, 287 (Miss.1983) (superseded by statute on other grounds)). The supreme court determined that a firm representation was made to Myers that he would be sentenced to less than twelve years in the custody of the MDOC. Id.

¶ 13. In the instant case, Vaughn was aware of the maximum sentences he was facing on both charges against him. He was also aware that he was classified as a habitual offender regarding the manslaughter charge. The circuit court advised Vaughn prior to entering his plea that he would not be eligible for early release from his twenty-year sentence for manslaughter. However, assuming ar-guendo that Vaughn’s attorney advised him that he would be eligible for early release on the twenty-year sentence, this ease remains distinguishable from Myers because Vaughn’s attorney never told him he would face a lesser sentence by pleading guilty. The actual time Vaughn faced in his sentencing was never disputed. Vaughn knew he faced a twenty-year sentence. It is the possibility of early release after conviction in which he bases his argument. Nonetheless, the supreme court has held “that a mere expectation or hope, however reasonable, of a lesser sentence than might be meted out after conviction upon trial by jury will generally not be sufficient to entitle a petitioner to relief in cases such as this.” Id. (quoting Sanders, 440 So.2d at 287).

¶ 14. Additionally, as noted by the circuit court, Vaughn’s plea-hearing transcript clearly reflects a dialogue between the circuit judge and Vaughn regarding Vaughn’s charges, the corresponding sentences, and the availability or prohibition of early release for the sentences on both charges. The transcript states:

The State: There is a recommendation. That recommendation would be twenty years in the custody of the [MDOC] as an eighty-one habitual offender on the first count to the lesser[-]included offense of manslaughter. On the second count, ten years not as an habitual offender, to run consecutive to that first count....
The Court: Mr. Vaughn, you have heard the statement of the Assistant District Attorney that his office recommends as to ... the lesser[-]included offense of manslaughter ... that you be sentenced to serve a term of twenty years in an institution under the supervision and control of the [MDOC]. That’s twenty years in prison as an eighty-one habitual. That means that you will not be eligible for parole or probation or any other reduction of sentence with regard to that count. And as to [possession of a firearm by a felon], their office recommends that you receive a sentence of ten years, but that sentence be imposed as a non-habitual. Although, it will be imposed or they recommend that it be imposed consecutive to the sentence imposed in [the manslaughter charge]. That is, it will begin after you complete the sentence [for manslaughter]. Now, my question to you, sir: Has anybody led you to believe that the State would recommend anything different from what he just said?
Mr. Vaughn: No, sir.
The Court: Do you understand that the maximum sentence on a charge of manslaughter is, in fact, twenty years?
Mr. Vaughn: Yes, sir.
The Court: Do you understand that the maximum sentence on the charge of felon in possession of a firearm is, in fact, ten years?
Mr. Vaughn: Yes, sir.

The circuit court then asked Vaughn if he was still willing to enter guilty pleas to both charges, to which Vaughn responded affirmatively.

¶ 15. Vaughn also executed a sworn plea petition prior to the plea hearing wherein he acknowledged his desire to plead guilty “to the crime[s] of [m]an-slaughter as [an] eighty-one habitual [and] possession of a weapon by a convicted felon, [as a]non-habitual.” Vaughn further stated in the plea petition that as a result of “lea [sic] bargaining,” he recognized the State would recommend: “Manslaughter-twenty years as an eighty-one habitual offender. Felon in possession of firearm-ten years non-habitual.”

¶ 16. We have held: “Solemn declarations made in open court carry a strong presumption of verity.” Jones v. State, 885 So.2d 83, 87 (¶ 8) (Miss.Ct.App. 2004) (citation omitted). Furthermore, a “plea petition [is] not an oral statement in open court, but it [is] a sworn document presumptively prepared with an appreciation of its fateful consequences. [A] plea petition, similarly to statements in open court, may be used to discredit post-plea allegations.” Ward v. State, 879 So.2d 452, 455 (¶ 11) (Miss.Ct.App.2003).

¶ 17. Vaughn stated both in his plea petition and in open court that he understood the sentences being imposed upon him for both the crime of manslaughter and the crime of possession of a firearm by a felon. As such, we find this issue to be meritless.

III. Assistance of Counsel

¶ 18. It is well settled that in order for a defendant to prevail on an ineffeetive-assistance-of-counsel claim, he or she must “show by a preponderance of the evidence (1) that counsel’s performance was deficient, and (2) [that] but for the deficiencies, the trial court outcome would have been different.” Jones v. State, 976 So.2d 407, 410-11 (¶ 6) (Miss.Ct.App.2008) (quoting Ward v. State, 914 So.2d 332, 336 (¶ 12) (Miss.Ct.App.2005)). Additionally, under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial....” Finally, “a presumption exists that the attorney’s conduct was adequate.” Hull v. State, 983 So.2d 331, 333-34 (¶ 11) (Miss.Ct.App.2007) (citing Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001)).

¶ 19. Vaughn claims that because his counsel allegedly misinformed him as to the possibility of early release on his sentences, he was denied effective assistance of counsel in entering his guilty pleas. As discussed above, we find no merit to his argument that his guilty pleas were involuntarily or unintelligently entered. Vaughn asserted in his plea petition and again in open court that he understood the ramifications of pleading guilty to both charges. He was questioned regarding his understanding of the consequences of pleading guilty. He told the circuit court that he was aware he would have to serve the entire twenty-year sentence on his manslaughter conviction if he pleaded guilty. He also acknowledged his status as a habitual offender on the manslaughter charge and the prohibition against early release.

¶ 20. Vaughn’s statements to the circuit court and his plea petition reflect an understanding of the consequences he faced in pleading guilty to manslaughter and possession of a firearm by a felon. As such, we find no merit to his argument that his counsel improperly explained his potential sentences for both charges. Even if he had been misinformed by his attorney as to a possible early release, the circuit court clearly outlined the ramifications of his pleas. Accordingly, Vaughn fails to establish a prima facie case for ineffective assistance of counsel. This issue is without merit.

¶ 21. THE JUDGMENT OF THE TU-NICA COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.


author: ISHEE, J.,

text:
    Michael Anthony FOUNTAIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01038-COA.
    Court of Appeals of Mississippi.
    April 10, 2012.

      Clare Sekul Hornsby, Calvin D. Taylor, Steven Benjamin Dick, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Michael Fountain was convicted in the Jackson County Circuit Court of four counts of sexual battery; sentenced to thirty years for each count with the sentences to run concurrently with one another, all in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation; and fined $10,000 for each count. Fountain appeals his conviction arguing: (1) the trial court abused its discretion by allowing KU.’s testimony under the exceptions in Mississippi Rule of Evidence 404(b); (2) the trial court abused its discretion by excluding evidence of M.G.’s false allegation against her step-brother, Chad Gol-lott; (3) there was plain error in two of the jury instructions given by the trial court; and (4) the verdict is contrary to the overwhelming weight of the evidence and is not supported by sufficient evidence. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2006, M.G. lived with her father, Danny Gollott, her father’s then-girlfriend, Michelle Surian, and her half-brother, Destín Gollott. M.G. knew Fountain because he was her cousin. He also worked with M.G.’s grandmother at a family business, and Fountain’s mother, Iris, lived next to M.G.’s grandmother. Fountain bought M.G. presents, including a cell phone and an Ipod; he also occasionally gave her money. M.G. began to spend time with Fountain at his house, at the warehouse where he worked, and at Iris’s house. M.G. stated that when she first began spending time with Fountain, she and Fountain ate pizza and watched television at Fountain’s house.

¶ 3. M.G. testified that Fountain began sexually abusing her after she confided in him that her half-brother, Destín, had sexually assaulted her. M.G. was nine years old at the time. The sexual abuse by Fountain occurred at Fountain’s house, his office at the warehouse, and at Iris’s house. According to M.G., it was during the initial stages of abuse that Fountain told her about his sexual relations with his step-daughter, K.U. He also showed M.G. sexually explicit vidéos of K.U. in addition to various other nude photographs. M.G. testified that Fountain had sexual intercourse with her, that he had placed his mouth on her vagina, and that he had inserted his penis into her mouth. She also testified to the use of vibrators during the sexual abuse and to his use of condoms.

¶ 4. In early 2008, M.G. told Surian, her father’s then-girlfriend, that Destín had sexually assaulted her. Surian then took M.G. to the emergency room. After the emergency-room visit, M.G. revealed to Surian that Fountain had been sexually assaulting her. M.G. was then removed from her home by the Department of Human Services (DHS).

¶ 5. In April 2008, a Jackson County grand jury indicted Fountain on four counts of sexual battery occurring from January 1, 2006, through January 18, 2008. Prior to trial, both the State and Fountain filed motions in limine. The State sought to exclude evidence of M.G.’s past allegations of sexual abuse by persons other than Fountain. The trial court excluded the evidence based on Fountain’s failure to comply with the notice requirements in Mississippi Rule of Evidence 412(c). In his motion in limine, Fountain sought to exclude evidence of prior acts of a sexual nature with his step-daughter, K.U. The trial court denied Fountain’s motion and permitted the evidence under Mississippi Rule of Evidence 404(b). A jury trial then began on May 25, 2010.

¶ 6. The jury heard the testimony of Terry Hines, an investigator with the Ocean Springs Police Department. He testified regarding the search of Fountain’s residence. During the execution of the search warrant, police officers found vibrators and nude photos in a dresser where M.Q. described they would be located. The officers also found condoms in Fountain’s bathroom and night stand. Although no videos of K.U. were found, the closet shelf on which M.G. said they would be located appeared to have had items recently removed. Investigator Hines also described Fountain’s nipple piercing, which M.G. had disclosed during her testimony.

¶ 7. The jury also heard the testimony of two nurses, Melanie Gaston and Edwina Roland, who had examined M.G. on separate occasions. Gaston, a nurse practitioner at Biloxi Regional Medical Center, examined M.G. on January 18, 2008. M.G. arrived at the hospital complaining of a headache, gastric burning, and leg pain. Gaston then performed a visual gynecological exam of M.G. based on her complaints of gastric burning. Gaston noted M.G.’s hymen was not intact, but there was no swelling, nor any bruising, tears, abscesses, or blisters. However, according to Ga-ston, this was not unusual “because the last [instance of sexual abuse] was two weeks [prior to the exam] or greater.” Gaston was referring to the alleged abuse by Destín. Because of this testimony, the trial court allowed testimony about M.G.’s accusations against Destín.

¶ 8. Roland, a registered nurse at Kees-ler Medical Center, examined M.G. on January 28, 2008, per the request of DHS. Roland also found no evidence of trauma. However, M.G. did reveal to Roland that she was assaulted by Fountain and Destín. M.G. also told Roland that Fountain videotaped her using a vibrator on several occasions.

¶ 9. K.U. also testified during the trial. She testified that she began to live with Fountain after he and her mother had divorced. According to K.U., Fountain began sexually abusing her when she was in the fifth grade. She testified the inappropriate behavior began as playing, which led to touching and feeling, and eventually progressed to sex. In addition, K.U. testified she would occasionally see Fountain watching pornography and masturbating in the living room. When she walked in the living room on those occasions, Fountain did not stop what he was doing. She further acknowledged the abuse continued until she was in her twenties.

¶ 10. Fountain took the stand in his own defense. He denied M.G.’s allegation and also denied any sexual abuse of K.U. He said a sexual relationship with K.U. began after she had graduated high school. Fountain admitted he was alone with M.G. on several occasions, bought her some gifts, and gave her money. He further testified that M.G. knew where the vibrators and nude photographs were located in his house because she liked to look in drawers. Fountain did not remember M.G. telling him about the alleged sexual assault by Destín, and he claimed that M.G. fabricated stories.

¶ 11. The jury convicted Fountain of four counts of sexual battery. He was sentenced to thirty years for each count with the sentences to run concurrently with one another, all in the custody of the MDOC without eligibility for parole or probation. In addition, he was ordered to pay fines in the amount of $10,000 for each count. Fountain now appeals.

DISCUSSION

¶ 12. On appeal, Fountain argues: (1) the trial court abused its discretion by allowing K.U.’s testimony under the exceptions in Mississippi Rule of Evidence 404(b); (2) the trial court abused its discretion by excluding evidence of M.G.’s false allegation against her step-brother, Chad; (3) there is plain error in two of the jury instructions given by the trial court; and (4) the verdict is contrary to the overwhelming weight of the evidence and is not supported by sufficient evidence.

I. Admission of Prior Alleged Acts of Misconduct

¶ 13. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the [appellate court] will not reverse this ruling.” Gore v. State, 37 So.3d 1178, 1183 (¶ 13) (Miss. 2010) (quoting Price v. State, 898 So.2d 641, 653 (¶29) (Miss.2005)).

¶ 14. Fountain asserts the trial court abused its discretion by admitting the testimony of K.U. in which she spoke about Fountain’s prior sexual abuse. He makes the following arguments regarding the introduction of this evidence: (1) the Mississippi Supreme Court’s holding in Derouen v. State, 994 So.2d 748 (Miss.2008), does not render this type of evidence per se admissible; (2) the prejudicial effect of the testimony greatly outweighs any probative value; (3) the limiting jury instruction did not eliminate the prejudice inherent in the testimony; (4) the allegations were too remote in time and dissimilar in detail to be relevant to the current charge; and (5) the testimony violated his right to a fair trial.

¶ 15. Prior to trial, Fountain filed a motion in limine seeking to prohibit the State from introducing evidence of his pri- or sexual acts with K.U. In KU.’s testimony, she alleged Fountain began to sexually abuse her when she was in the fifth grade, and the sexual acts continued until adulthood, at which point the relationship became consensual. The State sought to introduce the evidence under the standard announced in Derouen. Fountain claimed M.G.’s accusations have no connection to K.U.’s testimony, and K.U.’s testimony would only serve to show he acted in conformity with his prior acts. He further argued the probative value of the testimony is substantially outweighed by the danger of unfair prejudice. The trial court denied Fountain’s motion in limine. The trial court found KU.’s testimony was relevant to the current case and its probative value was not substantially outweighed by the danger of unfair prejudice.

A. Derouen Standard

¶ 16. In Derouen, the Mississippi Supreme Court held that evidence of a sexual offense other than the one charged, involving a victim other than the victim of the charged offense, “if properly admitted under Rule 404(b), filtered through Rule 403, and accompanied by an appropriately-drafted limiting or cautionary instruction to the jury, should not be considered per se error.” Derouen, 994 So.2d at 756 (¶ 20). Derouen overruled the holding in Mitchell v. State, 539 So.2d 1366 (Miss. 1989), later reaffirmed in Lambert v. State, 724 So.2d 392 (Miss.1998), which had found the admission of this type of evidence was per se reversible error. Derouen, 994 So.2d at 754 (¶ 17) (citing Lambert, 724 So.2d at 394 (¶ 7)). In overruling those cases, the supreme court stated: “[W]e find that our holding in Mitchell, reaffirmed in Lambert, does irreversible harm to the most innocent and defenseless in society — our young children.” Id. at 755-56 (¶ 18). The supreme court further acknowledged the standard established in those cases had “eliminat[ed] the balancing test required under Rule 403 ... [which] is totally contrary to our rules of evidence and well-established case law.” Id. at 756 (¶ 18) (citations omitted).

¶ 17. Fountain argues that although the holding in Derouen removed the per-se-inadmissibility standard regarding evidence of a separate sexual offense involving a different victim, Derouen does not render that type of evidence per se admissible. We agree with Fountain that it is clear Derouen did not make this type of evidence per se admissible. The Der-ouen standard states the evidence is only admissible “if properly admitted under Rule 404(b), filtered through Rule 403, and accompanied by an appropriately-drafted limiting or cautionary instruction to the jury.” Id. at (¶ 20). In the instant case, the trial court followed the standard announced in Derouen and properly admitted the evidence.

¶ 18. The evidence was properly admitted under Rule 404(b). Rule 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In deciding to admit KU.’s testimony, the trial judge stated:

The nature of the sex abuse, sexual activity testified to by [K.U.] is similar in nature as to the use of pornography or the existence of pornography, and [Fountain’s] interest in pornography, [and it is] consistent [with] the use of condoms in statements by the victim. I believe it’s relevant to the issues of the licentious nature of [Fountain] in the charges lodged here. I think it would be relevant to [the] opportunity of [Fountain] to engage in such conduct. It would be corroborative of the statements and some of the testimony of the victim here, as I’ve been informed of.

Under Rule 404(b), KU.’s testimony could not be presented to show “conformity therewith.” However, the testimony could be used to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” M.R.E. 404(b). There are several similarities between the two allegations of abuse: both victims were the same age when the abuse took place; Fountain gave both of the victims gifts and money; and several of the sexual acts were the same. The abuse of M.G. also began around the same time K.U. left for college. Furthermore, Fountain used his abuse of K.U. to groom M.G. as part of his general preparation or plan. As the trial judge noted, the licentious nature of the allegations show a motive to engage in the type of activity alleged. Thus, this evidence is permitted under Rule 404(b).

¶ 19. Derouen also requires that the trial court perform a Rule 403 balancing test before admitting the evidence. Rule 403 states: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” In this case, the trial court conducted the requisite balancing test and determined the testimony should be allowed.

¶ 20. In Derouen, when discussing the admissibility of evidence of this nature, the supreme court cites the dissent in Lambert in its entirety. In arguing its probative value outweighs the danger of unfair prejudice, the dissent in Lambert stated the following:

Sex crimes against children are furtive, secret events usually lacking evidence other than the conflicting testimony of the defendant and the victim. The only viable proof of motive, intent, plan, knowledge, identity or absence of mistake or accident may be the pattern of abuse suffered by others at the hands of the defendant.

Lambert, 724 So.2d at 395 (¶ 14) (Mills, J., dissenting, joined by Roberts and Smith, JJ.). Thus, the necessity of this type of evidence in cases involving sex crimes against children establishes their probative value. In most instances, as in the case at hand, evidence of a sexual offense other than the one charged, by a victim other than the victim of the charged offense, is the only evidence to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” M.R.E. 404(b). In this case, M.G. testified that the first time Fountain had sexual intercourse with her, Fountain told M.G. he had done the same thing to K.U. when she was nine. He also showed M.G. several explicit videos of K.U. This established his plan or preparation in using his abuse of K.U. to further his abuse of others. Furthermore, his prior actions show a motive to engage in the type of act alleged. These facts could not be established without K.U.’s testimony. Thus, the probative value of the evidence outweighs any prejudicial effect the evidence may possess.

¶ 21. Finally, the trial court, after deciding to admit the testimony, issued an appropriately drafted limiting or cautionary instruction to the jury. The trial court issued the following jury instruction:

The court instructs the Jury that the testimony of other acts as to a child which is not the subject of the Indictment being charged in this case is not evidence that the Defendant actually committed the crime charged herein or that the Defendant has a certain character and he acted in conformity therewith. Rather, the evidence, if proven beyond a reasonable doubt, may be considered, if you so determine, as to the Defendant’s motive, opportunity, intent, preparation^] and/or plan to commit the act for which he stands charged.

Fountain argues that in cases involving evidence of a separate bad act of a sexual nature against a different child, even a properly drawn limiting instruction cannot be followed by jurors. This argument is flawed. Under Fountain’s argument, no limiting instruction would ever suffice in cases involving evidence of prior sexual acts against a victim other than the one bringing the current charges. This is clearly untrue. Otherwise, the supreme court in Derouen would not have made the limiting jury instruction a requirement in admitting this type of evidence. Thus, we find the trial court issued the type of appropriate limiting instruction intended by Derouen. This issue is without merit.

B. Relevance of Prior Acts

¶ 22. Fountain next argues the allegations in K.U.’s testimony were too remote in time to be relevant to the current case. The abuse alleged by K.U. occurred between sixteen and seventeen years prior to the trial in the instant case. In Gore v. State, 37 So.3d 1178 (Miss.2010), the supreme court allowed evidence of the defendant’s prior sexual abuse of a different victim that occurred seven years before the abuse of the victim in the case. The Gore court cited the following cases from various jurisdictions: United States v. Hadley, 918 F.2d 848 (9th Cir.1990) (admitted evidence of other crimes occurring up to fifteen years prior to the crime for which the defendant was charged); Ex parte Register, 680 So.2d 225 (Ala.1994) (allowed testimony of defendant’s daughter regarding improper conduct that occurred seven to nine years previously); State v. Jackson, 625 So.2d 146 (La.1993) (permitted evidence of other crimes that occurred twenty-four years previously); State v. Driggers, 554 So.2d 720 (La.Ct.App.1989) (allowed admission of evidence of other acts that had occurred seven to twenty-six years previously). In Driggers, the Louisiana Court of Appeals reasoned that “even though the other[-]crimes evidence may appear to be remote in time in some instances, the incidents are all within the same time period in terms of the victims’ lives because all of the victims were essentially pre-pubescent.” Gore, 37 So.3d at 1186 (¶ 19) (quoting Driggers, 554 So.2d at 727). Based on the age of the M.G. and K.U. when the abuse occurred, the timing of the abuse of M.G. in relation to K.U. leaving for college, and the overwhelming amount of case law, we find KU.’s testimony was not too remote in time to be relevant.

¶ 23. Fountain further argues the assertions in KU.’s testimony were too dissimilar to M.G.’s case to permit admission. However, several facts within the testimony of each victim are similar in nature. There are also consistencies in the manner in which the abuse occurred. In both instances of abuse, the victims were approximately the same age; in both cases Fountain bought the victims presents and gave them money; and in both cases Fountain used pornography. Also, as discussed above, Fountain used his pri- or abuse of K.U. to aid in his abuse of M.G. Small variations in the type of abuse, such as using a vibrator in one instance and not in the other, will not make the two cases too dissimilar to be relevant. Accordingly, we find HU.’s testimony relevant to the current charge.

C. Fair Trial

¶ 24. In Fountain’s final argument regarding K.U.’s testimony, he claims the testimony violated his right to a fair trial. First, Fountain discusses the emotional impact of her testimony. He asserts the testimony about her dependence on Fountain and her emotional reaction when testifying about the abuse in support of this argument. Next, he argues KU.’s testimony regarding his masturbation and use of pornography was irrelevant and inflamed the jury. Finally, he argues K.U.’s testimony was the most compelling evidence against him, and the State used it as a key piece of evidence of his guilt.

¶ 25. To begin, Fountain cites no legal authority in his argument relating to his right to a fair trial. “Failure to cite relevant authority obviates the appellate court’s obligation to review such issues.” Simmons v. State, 805 So.2d 452, 487 (¶ 90) (Miss.2001) (citing Williams v. State, 708 So.2d 1358, 1362-63 (Miss.1998)). Furthermore, we have already addressed the relevance and admissibility of the testimony. The testimony was properly admitted and did not violate Fountain’s right to a fair trial. This issue is without merit.

II. Exclusion of False Allegations

¶ 26. Prior to trial, the State filed a motion in limine seeking to exclude the introduction of evidence regarding M.G.’s past allegations of sexual assault against persons other than Fountain. M.G. previously reported that her half-brother, Des-tín Gollott, had raped her and that her step-brother, Chad Gollott, had assaulted her. Fountain sought to introduce this evidence under Mississippi Rule of Evidence 412(b)(2)(c) as a false allegation by M.G. of a past sexual offense. The State moved to exclude the evidence under Rule 412(c). Rule 412(c)(1) requires the party seeking to admit such evidence to file a written motion no later than fifteen days before trial, unless the “evidence is newly discovered and could not have been obtained earlier through the exercise of due diligencef.]”

¶ 27. During discovery, the State provided Fountain with information regarding M.G.’s prior accusations. However, Fountain argued the evidence he sought to introduce was newly discovered because he did not receive Chad’s videotaped denial of the accusation until one day before trial and, therefore, he was unable to meet the fifteen-day notice requirement. Although Fountain argued the false allegations made by M.G. were newly discovered evidence, the trial court held the evidence was not newly discovered. The trial court stated: “It is conceded that the fact of this allegation was previously disclosed in discovery, and the fact that the alleged perpetrator denied the same adds little to the argument in favor of its admission.” The trial court found that Fountain failed to comply with the requirements of Rule 412(c). Therefore, the trial court granted the State’s motion in limine.

¶ 28. During the trial, M.G.’s accusations against Destín were introduced when the evidence became relevant during the testimony of medical personnel. Thus, on appeal, Fountain only argues the trial court erred by excluding evidence of M.G.’s supposedly false allegation against Chad. Citing Williams v. State, 54 So.3d 212 (Miss.2011), Fountain argues the exclusion of evidence tending to support his theory of defense is too harsh a sanction for discovery violations, without the trial court finding he failed to disclose the evidence with the intent to gain a tactical advantage. However, “[t]he admission or exclusion of evidence constitutes reversible error only where a party can show prejudice or harm.” Id. at 216 (¶ 14) (citing Ross v. State, 954 So.2d 968, 1001 (Miss. 2007)).

¶ 29. We have previously upheld the exclusion of testimony based on Rule 412 violations of the same nature as is present in this case. In Lofton v. State, 818 So.2d 1229, 1233 (¶ 14) (Miss.Ct.App.2002), the defendant, Matthew Lofton, sought to introduce evidence under Rule 412(b)(2)(C), that the victim, M.M., had previously accused her father of fondling her, an allegation the victim later told the grand jury was untrue. M.M. later explained the reason she had denied the allegation and confirmed the allegations as true. Id. The trial court excluded the evidence because Lofton failed to comply with the fifteen-day notice requirement in Rule 412(c). Id. at 1233 (¶ 15). On appeal, this Court affirmed the exclusion of the evidence finding the trial court’s exclusion of the evidence “could not have affected the judgment and therefore is not reversible error.” Id. at 1235 (¶22) (citation omitted).

¶ 30. In Levy v. State, 724 So.2d 405, 408 (¶ 18) (Miss.Ct.App.1998), the defendant sought to introduce evidence of the victim’s past sexual behavior. The trial court excluded the evidence. Id. On appeal, this Court held the trial court’s exclusion of the evidence was not reversible error because of the defendant’s failure to give timely notice or qualify for a procedural exception under Rule 412(c). Id. at 409 (¶ 19).

¶ 31. Fountain admittedly did not comply with the fifteen-day notice requirement of Rule 412(c). He also does not fall within one of the procedural exceptions. Although he argues the videotape of Chad denying the allegations is newly discovered evidence, we find the evidence of M.G.’s allegation against Chad was not newly discovered evidence. Furthermore, the tape adds little, if any, value to Fountain’s defense. The accusations against Chad were not the only source of evidence to support Fountain’s theory of defense. M.G.’s allegations against Destín served the same purpose, and those allegations were introduced during the trial. Thus, the exclusion of Chad’s testimony did not prejudice or harm Fountain’s theory of defense. The jury returned a guilty verdict despite hearing other evidence of M.G.’s prior allegations of abuse.

¶ 32. We find the exclusion of this evidence did not prejudice Fountain or affect the judgment rendered in this case; therefore, it is not reversible error. Accordingly, this issue is without merit.

III. Jury Instructions

¶ 33. Fountain argues the trial court committed plain error in two of the jury instructions given. When considering a challenge to a jury instruction on appeal, “this Court does not review jury instructions in isolation; instead, jury instructions are reviewed as a whole.” Morgan v. State, 995 So.2d 812, 816 (¶ 12) (Miss.Ct. App.2008) (citations omitted). “Accordingly, this Court will not find reversible error where, when read as a whole, the jury instructions ‘fairly announce the law of the case and create no injustice.’ ” Id. (quoting Foley v. State, 914 So.2d 677, 686 (¶ 14) (Miss.2005)).

¶ 84. Fountain did not object to either instruction during the trial. However, he argues the instruction should be reviewed under the plain-error doctrine. Appellate courts will “only address[ ] issues on plain[-]error review when the error of the trial court has impacted upon a fundamental right of the defendant.” Sanders v. State, 678 So.2d 663, 670 (Miss.1996). Thus, the plain-error doctrine’s two-part test requires: “(i) an error at the trial level[,] and (ii) such an error resulted in a manifest miscarriage of justice.” Stephens v. State, 911 So.2d 424, 432 (¶ 19) (Miss.2005) (citation omitted).

A. Response to Jurors’ Question

¶ 35. Fountain argues the trial court erred in its response to a question by the jury. During deliberations the jury sent the trial judge a note that said: “Can we get a copy of testimony of [M.G.]?” The trial judge responded: “It is not possible to provide the jury a transcript of any testimony. Please rely upon the collective recollection of the jury and continue your deliberations.” Fountain claims the trial court’s response to the jury question “directed the individual jurors to acquiesce to the collective will of the other jurors.” We find the trial court’s instruction did not affect Fountain’s fundamental rights and, thus, does not constitute a manifest miscarriage of justice. The importance of the response was to inform the jury it would not be provided with a transcript of M.G.’s testimony. Fountain provides no authority to support his interpretation of the trial court’s instruction of the jury. Furthermore, nothing in the instruction indicates the trial court directed the individual jurors to submit to the will of the jury as a whole. The trial court’s response to the jury question does not constitute plain error, and this issue is without merit.

B. Jury Instruction

¶36. Fountain also argues the trial court improperly granted jury instruction 12. The jury instruction read as follows:

The Court instructs the Jury that under the law of the State of Mississippi a child under the age of fourteen (14) cannot give consent to the crime of Sexual Battery. Therefore[,] the child’s consent or lack of consent is not a material issue to your decision on Defendant’s guilt or innocence.

Fountain argues jury instruction 12 presumed an act of sexual battery had occurred by introducing the defense of consent, a defense Fountain did not present at trial. We find the jury instruction was not plain error. The instruction was reasonable in light of the evidence in this case. Based on the evidence, the jury could have assumed that there was no evidence presented to suggest M.G. attempted to stop the sexual assault. There was, however, evidence that M.G. had conformed to some of Fountains suggestions, such as shaving her pubic hair. In addition, K.U.’s testimony regarding the continuation of her relationship with Fountain into adulthood could have indicated some level of consent was involved in the sexual abuse. Jury instruction 12 simply instructed the jury that even if it believed M.G. consented to the assault, she was legally unable to do so. The jury instruction was not plain error. Accordingly, we find this issue to be without merit.

IV. Motions for a Directed Verdict, JNOV, and New Trial

¶ 37. In his final assignment of error, Fountain argues the trial court erred by denying his motions for a directed verdict, JNOV or, alternatively, a new trial. He argues his motions should have been granted because the verdict was contrary to the overwhelming weight of the evidence, and the evidence presented was insufficient to support the conviction.

¶ 38. Fountain was convicted of sexual battery under Mississippi Code Annotated section 97-3-95(l)(d) (Rev.2006), which states: “A person is guilty of sexual battery if he or she engages in sexual penetration with ... [a] child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.”

A. Motion for a New Trial

¶ 39. A motion for a new trial challenges the weight of the evidence. Bush v. State, 895 So.2d 836, 844 (¶18) (Miss.2005). “[W]e 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.” Id. (citation omitted). On appeal, “the evidence should be weighed in the light most favorable to the verdict.” Id. (citation omitted). “When this Court analyzes a jury’s verdict to determine whether it goes against the overwhelming weight of the evidence, we must keep in mind that the jury is the ultimate finder of fact.” Reeves v. State, 825 So.2d 77, 80 (¶ 8) (Miss.Ct.App.2002).

¶ 40. In the instant case, the State provided ample evidence of sexual battery, and the jury’s verdict does not present an “unconscionable injustice.” The jury heard testimony from M.G. detailing her sexual abuse at the hands of Fountain, including penetration. The jury also heard the testimony of Investigator Hines, who stated that M.G. knew where certain items would be located in Fountain’s home. Those items included vibrators and nude photographs. In addition, K.U. testified to her prior sexual abuse by Fountain, thus establishing a motive to commit the crime.

¶ 41. A jury is entitled to believe or disbelieve the testimony of any witness. Moore v. State, 969 So.2d 153, 156 (¶ 11) (Miss.Ct.App.2007). In this case, the jury choose to believe the testimony of M.G. and other evidence that supported her allegations. Furthermore, the jury was entitled to disbelieve Fountain’s testimony in which he denied the allegations of both M.G. and K.U. We do not find the jury’s decision was against the overwhelming weight of credible evidence, nor does it constitute an unconscionable injustice. This issue is without merit.

B. Motion for Directed Verdict or for a JNOV

¶ 42. A motion for a directed verdict or for a JNOV implicates the sufficiency of the evidence. Bush, 895 So.2d at 843 (¶ 16). In reviewing a motion for a directed verdict or for a JNOV, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 43. As discussed above, the State provided sufficient evidence to support the jury’s verdict. Fountain argues the evidence was insufficient because the State did not produce any DNA evidence to prove the abuse. In fact, the items from Fountain’s house were tested, and no DNA evidence from M.G. was present. While DNA evidence certainly supports a conviction, it is not absolutely necessary to support a guilty verdict. Because of the inherent secrecy involved in child-abuse cases, there is often little evidence other than the child’s testimony to support conviction. To require DNA evidence in these cases would virtually abolish crimes involving child abuse. Furthermore, M.G.’s testimony that condoms were used explains the lack of DNA on items found within Fountain’s home. For the foregoing reasons, we find this issue is without merit.

¶ 44. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF FOUR COUNTS OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS FOR EACH COUNT WITH THE SENTENCES TO RUN CONCURRENTLY ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION AND TO PAY A $10,000 FINE FOR EACH COUNT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Actual names are not revealed in sexual-abuse cases.

      . We note that Surian later married Gollott and changed her last name; however, for the purposes of this opinion, we refer to her as Surian.