text:
    Janice Herrington WARD, William Lloyd Ward, Jr., Rita Collins, Deceased, and Linda Stennett, Appellants v. TRIMAC INVESTMENTS, LLC, Appellee.
    No. 2009-CA-02025-COA.
    Court of Appeals of Mississippi.
    March 22, 2011.
    Rehearing Denied Oct. 18, 2011.
    Certiorari Denied Jan. 26, 2012.

      Terry L. Caves, Laurel, Frank D. Montague Jr., Hattiesburg, attorneys for appellants.
    Richard Anthony Filce, attorney for ap-pellee.
    IRVING, P.J., MYERS and MAXWELL, JJ.
   MYERS, J.,

for the Court:

¶ 1. Trimac Investments, LLC owns an eighty-acre tract of land in Forrest County, Mississippi. The Trimac property is surrounded by land owned by others, and it has no direct access to a public road. Trimac sought a right-of-way so it could harvest timber on the property. It brought suit in the County Court of Forrest County to establish a private road over the properties of Janice Ward, William Ward, Rita Collins, and Linda Sten-nett (collectively the Wards). Trimac proceeded under Mississippi Code Annotated section 65-7-201 (Rev.2005), which permits a private road to be established over another’s land if necessary for ingress and egress.

¶ 2. The county court awarded Trimac the private road it sought over the Wards’ properties. The court made the following findings of fact:

A pre-existing road bed is established on the proposed access while the alternative routes have no existing roads and are, more or less, trails;
The proposed access road is in a direct, that is, near straight line to the public road while suggested alternatives are less direct routes [or] more winding routes;
The proposed access road is the shortest distance to the public road with the next shortest possible route three to four times as long and much more inconvenient;
The proposed access road is on the western property boundary, which would cause minimal disruption to existing improvements. Other suggested alternative routes would require cutting through and across other landowners’ properties;
The proposed route is across the most accessible terrain, while the next two closest alternative routes (over Jarrell or Parker property) contain low, drainage areas or “sloughs” which would require drainage ways or possibly bridges for an appropriate ground surface for a road; [and]
The proposed access road has already been used in the past to access the property.

The county court concluded Trimac had demonstrated a reasonable necessity for the private road.

¶ 3. On appeal, the Wards present two significant arguments that this was in error. First, they contend that Trimac failed to prove it did not have an alternative — if less convenient — route to access its property through an implied easement over a neighboring parcel owned by Lynda Jarrell. Second, the Wards argue Trimac failed to show it had attempted to purchase a right-of-way from the other surrounding landowners before bringing suit. After reviewing the record and the controlling law, we find both contentions meritorious, so we reverse and render the county court’s judgment.

DISCUSSION

¶ 4. Article 4, section 110 of the Mississippi Constitution provides constitutional authority for the taking of property for private roads:

The Legislature may provide, by general law, for condemning rights of way for private roads, where necessary for ingress and egress by the party applying, on due compensation being first made to the owner of the property; but such rights of way shall not be provided for in incorporated cities and towns.

Section 65-7-201 of the Mississippi Code Annotated states:

When any person shall desire to have a private road laid out through the land of another, when necessary for ingress and egress, he shall apply by petition, stating the facts and reasons, to the special court of eminent domain created under Section 11-27-3 of the county where the land or part of it is located, and the case shall proceed as nearly as possible as provided in Title 11, Chapter 27 for the condemnation of private property for public use. The court sitting without a jury shall determine the reasonableness of the application. The owner of the property shall be a necessary party to the proceedings. If the court finds in favor of the petitioner, all damages that the jury determines the landowner should be compensated for shall be assessed against and shall be paid by the person applying for the private road, and he shall pay all the costs and expenses incurred in the proceedings.

Thus, a private road may be established on another’s property only where necessary for ingress and egress to a land-locked parcel.

¶ 5. The petitioner carries the burden of proving the proposed private road is necessary. Hooks v. George County, 748 So.2d 678, 683 (¶ 27) (Miss.1999). The showing required is only that the right of way is “reasonably necessary,” as opposed to absolutely necessary. Quinn v. Holly, 244 Miss. 808, 813, 146 So.2d 357, 359 (1962). However, although absolute necessity need not be shown, “real necessi ty” is still required, and a private road may not be granted for convenience or to save expense. Ganier v. Mansour, 766 So.2d 3, 7 (¶ 14) (Miss.Ct.App.2000).

¶ 6. To show necessity, our law requires both a showing that the property has no access to the public road and that the party seeking the private road has attempted to secure a right of way by contract or grant. Rotenberry v. Renfro, 214 So.2d 275, 278 (Miss.1968). “[T]he landlocked landowner must allege and show that he has been unable to obtain a reasonable right-of-way from all of the surrounding property owners.” Id.

¶ 7. While Trimac did claim to have attempted to purchase a right-of-way from the Wards, it is undisputed that it made no effort to obtain one from the other surrounding landowners. The record shows that there were numerous other potential paths to a public road: Carl Parker owned a large tract of land to the west, which abutted Eastabutchie Road to the southwest and County Line Road to the northwest; Lynda Jarrell owned property with access to Eastabutchie Road to the southeast; Cooper Rounsaville owned property to the northeast with access to County Line Road; and Frederick McCollough owned property to the north without apparent access to any public roads but abutting nine properties owned by different individuals, each with access to County Line Road. Nicholas McClendon, Trimac’s chief of operations, admitted in his testimony that, with the exception of the Jar-rell property, Trimac had not investigated potential rights-of-way across the other surrounding properties. McClendon also admitted that Trimac had not attempted to purchase a right-of-way from any of these other surrounding landowners. Trimac apparently did not consider these potential alternatives because none had an existing road leading to its property.

¶ 8. The county court’s opinion was largely focused on where the access to Trimac’s property should be located. The county court stated that the question before it was “not so much whether Trimac is entitled to a road giving access ... to its property, but where that road should be located.” The court concluded that the proposed road was the “most reasonable” access to the Trimac property because the other potential routes were “longer, more expensive, and less convenient.”

¶ 9. Although the Wards dispute the finding, the record overwhelmingly supports the county court’s conclusion that the proposed road is the most reasonable access to the Trimac property. If Trimac had proven that a private road was necessary to access its property, and the only question before the county court was where that road should be located, we could not disturb this finding. However, it is distinct from the issue of whether a private road is necessary in the first place.

¶ 10. Again, to show necessity, the party seeking a private road is required to show it has been unable to otherwise obtain a reasonable right-of-way from all of the surrounding property owners. Rotenberry, 214 So.2d at 278. It is plain from the record that Trimac did not meet this requirement. The facts that these potential routes would be longer, more expensive, and less convenient than the proposed road over the Wards’ properties do not amount to a showing that these alternatives were unreasonable. As the Mississippi Supreme Court has explained:

The statute does not contemplate granting one citizen or corporation a right of way through the property of another citizen or corporation as a matter of mere convenience or as a mere matter of saving expense. There must be real necessity before private property can be invaded by a citizen for private purposes, if that can be done at all. The right to the control and use of one’s property is a sacred right, not to be lightly invaded or disturbed.

Whitefort v. Homochitto Lumber Co., 130 Miss. 14, 26, 93 So. 437, 439 (1922). Thus, Trimac was not relieved of its obligation to seek a voluntary right-of-way from other surrounding landowners with a simple showing that the alternatives would be more expensive or less convenient than its preferred route. Instead, Trimac had to show that these potential alternatives were unreasonable, that is, that they “involve disproportionate expense and inconvenience.” Evanna Plantation, Inc. v. Thomas, 999 So.2d 442, 446 (¶ 12) (Miss.Ct.App.2009). “An alternative would involve disproportionate expense and inconvenience if the expense of making the means of access available would exceed the entire value of the property to which access was sought.” Id. (citation and quotations omitted). That showing was not made.

¶ 11. The county court did suggest that the potential routes over the Jarrell and Parker properties were unsuitable because of a “slough” or lowland area. The supreme court has held that a potential access requiring the construction of a bridge (over a drainage canal or a river) is unreasonable. Rotenberry, 214 So.2d at 278. The proof in this case is not comparable to Rotenberry. Jarrell testified that her property was impassable by logging trucks in its present state, but she did not give competent testimony as to what improvements would be required or what they would cost. The only evidence about the lowland on the Parker property came from Jarrell, and she just described it as a “slough,” without further elaboration. This evidence is simply insufficient to show that- these potential routes are unreasonable.

¶ 12. On appeal, Trimac contends that the requirement to offer to purchase a right-of-way from surrounding landowners is impractical because it would require it to “seek routes over an infinite number of possible paths to an infinite number of distant roads.” This contention is plainly without merit. From the record, it appears that other than the Wards, there are exactly four surrounding landowners. It is hardly impossible for Trimac to prove either that access through these properties is so impractical as to be unreasonable or that it cannot be obtained through grant or contract.

¶ 13. Trimac also contends that its failure to seek alternative routes was an affirmative defense and that the Wards waived it by not raising it in their answer, but it cites to no relevant authority for that proposition. It is also plainly without merit: the showing of reasonable necessity is part of Trimac’s burden of proof. That Trimac failed to meet its burden of proof is not an affirmative defense. Moreover, Trimac alleged in its complaint that it had attempted to acquire an easement by contract and had been unsuccessful. This was specifically denied by the Wards in their answers, and it was more than sufficient to put Trimac on notice of the defense.

¶ 14. This case also presents the question of a potential easement over the Jarrell property. At trial, the Wards attempted to prove that Trimac had an easement by necessity over the Jarrell property, by showing that the Trimac property and the Jarrell property had been under common ownership in the past. Our precedent is clear that, if Trimac had an easement allowing it access to its property, the Trimac property is not landlocked and a statutory private road cannot be granted. “A determination that another easement was reasonably necessary requires a finding that an existing easement is unusable.” Gibbes v. Hinds County Bd. of Supervisors, 952 So.2d 1011, 1015 (¶ 10) (Miss.Ct. App.2007).

¶ 15. Our analysis of this issue is complicated because the easement in this case was not proven to exist. An easement by necessity requires more than a showing that the landlocked parcel was once under common ownership with the other; it arises only if the property became landlocked when the common ownership was severed. Evanna, Plantation, 999 So.2d at 445-46 (¶ 11). “An easement by necessity arises by operation of law when part of a commonly-owned tract of land is severed in a way that renders either portion of the property inaccessible except by passing over the other portion or by trespassing on the lands of another.” Id. at 446 (¶ 11).

¶ 16. Trimac contends that the Wards waived this issue by failing to prove the existence of the easement. According to Trimac, the Wards should have brought Jarrell into the suit and put on proof to establish Trimac’s right to an easement over her property, in order to prevent their property from being taken in its place.

¶ 17. It would not only be inequitable to allow Trimac to sit on its potential right to an easement, it is also contrary to established precedent. Again, the burden falls on Trimac to prove that its property is landlocked; it must show that it has no right-of-way and cannot obtain one from the other property owners. Rotenberry, 214 So.2d at 278. We hold that this burden includes not only that an offer to purchase a right-of-way, but also a showing that there is no preexisting right to an easement by necessity. That, again, was not made in this case.

¶ 18. Under the private road statute, Trimac was required to show both that its property was physically landlocked and that it was unable to secure a reasonable right-of-way to a public road through neighboring properties. Because Trimac failed to meet this burden of proof, the county court erred in taking the Wards’ property for a private road. We reverse and render its judgment.

¶ 19. THE JUDGMENT OF THE COUNTY COURT OF FORREST COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. LEE, C.J., NOT PARTICIPATING.

      . McClendon did discuss a potential route over the Jarrell property, which had an already existing path from the public road to the Trimac property. However, he dismissed the Jarrell route as impractical because it was longer than the proposed road and most of its length was largely unimproved.


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    Eric TURNER, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00601-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.
    Rehearing Denied Oct. 4, 2011.
    Certiorari Denied Jan. 26, 2012.

      Eric Turner, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of Eric Turner’s motion for post-conviction relief, which the Chickasaw County Circuit Court summarily denied. Turner filed the motion after his post-release supervision was revoked. Turner contends that the circuit court erred in denying the motion because the evidence adduced at the revocation hearing was insufficient to support the revocation of his post-release supervision.

¶ 2. We find no error; therefore, we affirm the circuit court’s judgment.

FACTS

¶ 3. On March 23, 2004, Turner pleaded guilty to sale of cocaine and was sentenced to eight years in the custody of the Mississippi Department of Corrections (MDOC), with seven years suspended and five years of post-release supervision. Sometime later, Turner was released on post-release supervision.

¶ 4. On May 4, 2009, the circuit court revoked Turner’s post-release supervision and sentenced him to serve seven years in the MDOC’s custody. The basis for the revocation was Turner possessing a firearm and using it to shoot Troy Jefferson, Turner’s acquaintance.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. “When reviewing a lower court’s decision to deny a petition for post-conviction relieff, an appellate court] will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, when questions of law are raised!,] the applicable standard of review is de novo.” Presley v. State, 48 So.3d 526, 528-29 (¶ 10) (Miss.2010) (quoting Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)).

¶ 7. Turner essentially argues that the circuit court erred because the State failed to prove that Turner committed the acts that were delineated in the petition to revoke his post-release supervision. In his brief, Turner states: “The records and revocation[-]hearing transcript are completely void of a scintilla of evidence proving that Appellant had possession of a firearm....”

¶ 8. At the revocation hearing, Jefferson stated under oath that:

I got a call from [Turner], and I was going downtown to the store. I went by his house to see what he wanted, and he just pulled a gun out on me and snapped the gun two times. It didn’t go off. I jumped out of the car with him and went and got back in my car, and he got out and shot me.

Although Jefferson was unsure as to why Turner had shot him, he noted that Turner had claimed that Jefferson owed Turner money. Turner presented a string of witnesses, most of whom were related to or friends with him. The essence of the witnesses’ statements was that none of them had observed Jefferson at Turner’s grandmother’s house, the location of the alleged shooting, on the day in question. Based on the conflicting evidence, we find that the circuit court did not err in determining that Jefferson was more credible than Turner’s witnesses. The mere fact that Turner presented the testimonies of multiple witnesses does not serve to invalidate Jefferson’s contradictory testimony.

¶ 9. Turner also complains that the circuit court did not “provide a written statement as to the evidence relied on and reasons for revoking his post[-]release supervision and suspended sentence.” As support that such a statement was required, Turner relies on Grayson v. State, 648 So.2d 1129, 1133-84 (Miss.1994). Although the Grayson court noted that a circuit court should make factual findings when revoking probation or parole, it also stated: “[A] court’s failure to make written findings for revoking probation does not deny a probationer due process where the court’s oral opinion is contained in the record and indicates the evidence relied upon, as well as the reasons for revocation.” Id. at 1134 (quoting State v. Murray, 28 Wash.App. 897, 627 P.2d 115, 117 (1981)).

¶ 10. When it revoked Turner’s post-release supervision, the circuit court stated:

[COURT]: [Turner’s witnesses] certainly tell a different story than the State’s case; and they witnessed nothing.
They should have been within hearing of any gunshot at your grandmother’s house, but faulty hearing may be some result of some family connection.
But the [c]ourt is satisfied that the State has met its burden of proving that you violated your probation in the manner alleged by your probation officer, and the [c]ourt imposes the previously suspended sentence to be served in an institution to be designated by the Department of Corrections. Good luck to you.
[DEFENDANT]: I have one question. How was it that the State proved that I committed the crime whenever it was my word against Troy Jefferson’s, which we both are convicted felons. He just got out of prison in April just like I did.
[COURT]: He doesn’t need to get shot any more than you do.

From the above, it is clear that the circuit court based its factual findings on the testimonies provided by the various witnesses. Under Grayson, the circuit court consequently met its obligation of informing Turner regarding the factual basis for the revocation.

¶ 11. Turner’s arguments are without merit, and we therefore affirm the circuit court’s judgment.

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

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, JJ., CONCUR. RUSSELL, J., NOT PARTICIPATING.

      . Although Jefferson stated that the shooting took place at Turner’s house, it is apparent from the rest of the testimonies and other documents in the record that the shooting took place at Turner’s grandmother's house.


author: IRVING, P. J.,

text:
    Richard PARTAIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00896-COA.
    Court of Appeals of Mississippi.
    Aug. 23, 2011.
    Rehearing Denied Nov. 8, 2011.
    Certiorari Denied Jan. 26, 2012.

      Richard Partain, appellant, pro se.
    Office of the Attorney General By W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   IRVING, P. J.,

for the Court.

¶ 1. On August 12, 2008, Richard Partain pleaded guilty to manslaughter by culpable negligence. Following his plea, the DeSo-to County Circuit Court sentenced Partain to twenty years in the custody of the Mississippi Department of Corrections, with fifteen years to serve, five years suspended, and five years of post-release supervision. The circuit court also ordered Par-tain to pay $48,713.36 in restitution. On September 11, 2009, Partain filed a motion for post-conviction relief (PCR), which the circuit court dismissed. Feeling aggrieved, Partain appeals and argues that: (1) his guilty plea was involuntary; (2) he received ineffective assistance of counsel; and (3) the circuit court’s factual findings were clearly erroneous.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On January 15, 2008, a DeSoto County grand jury returned a two-count indictment against Partain. Count one charged Partain, pursuant to Mississippi Code Annotated section 63-11-30(5) (Supp. 2010), with negligently causing the death of Lillian Esrey while operating a vehicle under the influence of intoxicating liquor that impaired his ability to operate the vehicle. Count two charged him with possession of Oxycodone. On August 12, 2008, the circuit court entered an order remanding both counts of the indictment to the files, and the State filed a bill of information charging Partain, pursuant to Mississippi Code Annotated section 97-3-47 (Rev.2006), with manslaughter by culpable negligence. On the same day, Partain signed a waiver of indictment and consented to proceed on the bill of information for the charge of manslaughter by culpable negligence.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. A circuit court may dismiss a PCR motion without an evidentiary hearing where “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....” Miss.Code Ann. § 99-39-11(2) (Supp.2010). An appellate court will not reverse a circuit court’s dismissal of a PCR motion unless the circuit court’s decision was clearly erroneous. Means v. State, 43 So.3d 438, 441 (¶ 6) (Miss.2010). However, questions of law are reviewed de novo. Id.

1. Involuntary Guilty Plea

¶ 6. Partain argues that his guilty plea is invalid because it was involuntary. Specifically, Partain alleges that he was not informed of the elements of the charge against him or the consequences of his guilty plea. He also alleges that his attorney coerced him into pleading guilty.

¶ 7. “A valid guilty plea must represent a voluntary and intelligent choice by the defendant among the alternative courses of action available.” Hannah v. State, 943 So.2d 20, 25 (¶ 11) (Miss.2006) (citing Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). When determining whether a plea is voluntary, an appellate court considers whether “the trial court [advised] 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) (citing Harris v. State, 806 So.2d 1127, 1130 (¶ 9) (Miss.2002)).

a. Elements of Charge

¶ 8. During his plea hearing, the circuit court explained to Partain that he had been charged with manslaughter by culpable negligence. The circuit court asked Partain if he understood the charge that he was pleading guilty to, and Partain stated under oath that he did. We note that the circuit court did not recite the elements of manslaughter by culpable negligence. However, when the circuit court asked the State to summarize its proof at the plea hearing, the State offered the following:

[BY THE PROSECUTOR]: If this matter were to go to trial, the State would be prepared to prove beyond a reasonable doubt[,] with credible and admissible evidence[,] that on or about October 28th of 2007, this Defendant, Richard Partain, did willfully, unlawfully, feloniously-willfully and feloniously kill one Lillian Esrey, a human being, by culpable negligence and without authority of law.

¶ 9. This Court has previously held that a prosecutor’s on-the-record statement of the elements of the crime charged sufficiently informs a defendant of the elements of the crime. Williams v. State, 31 So.3d 69, 79 (¶ 28) (Miss.Ct.App.2010). In Williams, the circuit court failed to advise Jason Williams of the elements of the crimes that he had pleaded guilty to, and it failed to “ask defense counsel whether they had advised Williams of the elements.” Id. at 77 (¶ 22). Additionally, Williams’s plea petitions “did not set forth the elements of the crimes.” Id. However, at the plea hearing, the prosecutor made an on-the-record recitation of the essential elements of the crimes charged. Id. at 79 (¶¶ 29-30). This Court stated that “we see no constitutional infirmity with the elements of the crime to which a defendant wishes to plead guilty having being explained to the defendant by the prosecutor rather than the judge at a plea hearing.” Id. at 79 (¶ 28).

¶ 10. We see no reason to hold differently here. The prosecutor’s on-the-record statement at the plea hearing, which was made in front of both Partain and his attorney, contained all of the statutory elements of manslaughter by culpable negligence, which are “an unlawful killing by the culpable negligence of another.”. Id. at (¶ 30) (quoting Ramage v. State, 914 So.2d 274, 276 (¶5) (Miss.Ct.App.2005)). Accordingly, we find that the prosecutor’s statements made in open court sufficiently informed Partain of the charge against him. This issue is without merit.

b. Consequences of Plea

¶ 11. Partain also alleges that the circuit court failed to inform him of the consequences of his guilty plea. However, Partain’s allegation is not supported by the record. During the plea hearing, the circuit court explained to Partain that by pleading guilty, he would waive his right to a trial by jury, right to confront adverse witnesses, and right to protection against self-incrimination. The circuit court asked Partain whether he understood that he was waiving these rights by pleading guilty, and he indicated that he did. The circuit court also explained the maximum and minimum sentences associated with manslaughter by culpable negligence, and Partain stated that he understood the possible sentences. Based on our review of the transcript from the plea hearing, we find that Partain understood the consequences of his guilty plea. This issue is without merit.

c. Coercion

¶ 12. Finally, Partain argues that his attorney coerced him into pleading guilty. However, other than the assertions in his brief, Partain has presented no evidence that his plea was coerced. Furthermore, during his plea hearing, Partain stated under oath that he had not been threatened or coerced into pleading guilty. Additionally, in his plea petition, Partain declared that he had freely and voluntarily entered his guilty plea. Based on his sworn answers during his plea hearing and within his plea petition, Partain entered his plea voluntarily, knowingly, and intelligently. This issue is without merit.

2. Ineffective Assistance of Counsel

¶ 13. Partain argues that he received ineffective assistance of counsel because his attorneys failed to secure a preliminary hearing, to schedule a hearing on his motion to suppress evidence, and to investigate his case adequately.

¶ 14. To succeed in a challenge to the effectiveness of counsel, Partain must satisfy the two-prong test announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong requires that the defendant show that “counsel’s representation fell below an objective standard of reasonableness.” Hannah, 943 So.2d at 24 (¶ 6) (citing Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). Under the second prong, “the defendant must show [that] there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different:” Id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). In the-context of guilty-plea proceedings, the second prong requires a showing “that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty, would have insisted on going to trial, and the outcome would have been different.” Id. at (¶ 7).

a. Preliminary Hearing

¶ 15. Partain contends that he received ineffective assistance of counsel because his attorneys failed to secure a preliminary hearing. Based on the record, there is no evidence that William Travis, Partain’s court-appointed counsel, attempted to secure a preliminary hearing. Partain’s retained attorney, Jefferson Gilder, requested a preliminary hearing in conjunction with a writ of habeas corpus. However, at the time Gilder filed the writ, Partain had already been indicted by a grand jury. Under Rule 6.05 of the Uniform Rules of Circuit and County Court, “[a] defendant who has been indicted by a grand jury shall not be entitled to a preliminary hearing.”

¶ 16. Partain contends that Travis’s and Gilder’s failure to secure a preliminary hearing prior to his indictment constitutes ineffectiveness. However, Par-tain fails to provide evidence of how counsels’ alleged ineffectiveness prejudiced him. Furthermore, Partain’s valid guilty plea operates as a waiver of “all non-jurisdictional rights or defects which are incident to trial,” including a preliminary hearing. Cummings v. State, 827 So.2d 14, 16-17 (¶ 6) (Miss.Ct.App.2002) (quoting Anderson v. State, 577 So.2d 390, 391 (Miss.1991)). As previously discussed, Partain entered a valid guilty plea; therefore, he waived his right to a preliminary hearing. Furthermore, Partain has failed to show how counsels’ alleged ineffectiveness prejudiced him, as required under Strickland. As such, this issue is without merit.

b. Motion to Suppress

¶ 17. Partain further argues that Gilder was deficient for failing to schedule a hearing on his motion to suppress evidence of a blood test. Gilder filed a motion to suppress on April 11, 2008; however, the circuit court noted in its order dismissing Partain’s PCR motion that the motion to suppress was never scheduled for a hearing.

¶ 18. Both the motion to suppress and the PCR motion alleged that Partain’s blood was taken in violation of his constitutional rights. This Court has previously held that “[a] valid guilty plea waives the defendant’s right to make certain constitutional challenges, including those under the Fourth Amendment.” Battaya v. State, 861 So.2d 364, 366 (¶ 5) (Miss.Ct.App.2003) (citations omitted). In Battaya, William Battaya alleged in his PCR motion that his arrest was illegal because the police lacked a warrant or probable cause. Id. at 365 (¶ 3). Additionally, Battaya alleged that his counsel was deficient for failing to inform him that his arrest was illegal. Id. at 367 (¶ 16). This Court held that Battaya’s valid guilty plea waived his constitutional challenges to his arrest as well as the related challenge to his counsel’s effectiveness. Id. at 367-68 (¶¶ 16-17). Applying the holding in Battaya, Partain waived his right to challenge the constitutionality of the blood specimen when he pleaded guilty. Consequently, he cannot challenge the effectiveness of his counsel for failing to schedule a hearing on the motion to suppress the blood specimen. This issue is without merit.

c. Failure to Investigate

¶ 19. Partain alleges that Gilder failed to perform an adequate investigation of his case. Specially, Partain argues that Gilder failed to interview witnesses identified only as “Dawn” and “Don.” According to Par-tain, Dawn was an eyewitness to the car accident between Partain and Esrey and would have testified that Partain did not cause the accident. Don was Partain’s friend who would have testified that Par-tain was not intoxicated at the time of the car accident. Partain admits in his brief that he could not locate these witnesses to obtain their affidavits. Nonetheless, he contends that Gilder was ineffective for failing to interview these witnesses.

¶ 20. “[F]or a failure[-]to[-]investigate claim to rise to ineffective assistance of counsel, the defendant must state with particularity what the investigation would have revealed and how it would have altered the outcome.” Wilkins v. State, 57 So.3d 19, 22 (¶ 7) (Miss.Ct.App.2010) (citing Johnson v. State, 987 So.2d 501, 504 (¶ 15) (Miss.Ct.App.2008)). Furthermore, counsel’s failure to investigate, without more, does not constitute ineffectiveness. Id.

¶ 21. By Partain’s own admission, he has failed to provide this Court with affidavits indicating what these witnesses would have testified to. In fact, Partain has failed to offer a single affidavit in support of his ineffective-assistance-of-counsel claims. Furthermore, Partain failed to list these possible witnesses in his PCR motion. Partain’s PCR motion merely contained a general allegation that Gilder had failed to perform an adequate investigation of his case. This Court has consistently held that a “defendant must allege facts pointing toward counsel’s deficient performance with ‘specificity and detail.’ ” Mason v. State, 42 So.3d 629, 633 (¶ 11) (Miss.Ct.App.2010) (quoting Kinney v. State, 737 So.2d 1038, 1041 (¶ 8) (Miss.Ct.App.1999)). This issue is without merit.

¶ 22. In his brief, Partain asserts various other deficiencies regarding the representation that he received. However, because these issues were not raised in his PCR motion, they are procedurally barred. Foster v. State, 716 So.2d 538, 540 (¶9) (Miss.1998).

3. Circuit Court’s Fact Finding

¶ 23. As mentioned above, Partain filed a motion to suppress a blood specimen, which he alleges was not taken in accordance with the requirements of Mississippi’s implied-consent law and was in violation of his constitutional rights. In its order dismissing Partain’s PCR motion, the circuit court noted that the motion to suppress the blood specimen was never scheduled for a hearing. However, it concluded that the lack of a hearing was of no moment since the charges of possession of Oxycodone and D.U.I. death were remanded to the files, and therefore, “[t]he offer of proof given by the State did not include proof of the blood test.”

¶ 24. Partain contends that the circuit court erred when it found that the State’s offer of proof did not include proof of the blood test. In support of his contention, Partain points to the plea hearing wherein the State summarized its proof and stated:

[T]he facts would show that some people were behind Mr. Partain in Horn Lake, Mississippi. They followed him to [U.S.] 51 at Church [Rd]. They called the police because they felt that he was intoxicated. He was driving erratically and in the wrong lane. Ultimately, more [people] called 911.... [H]e was driving negligently by driving in the wrong lane of traffic. Officers got there and [smelled] an intoxicating liquor, and they [ultimately took] his BAC.

Partain has misinterpreted the circuit court’s order. Partain pleaded guilty to manslaughter by culpable negligence rather than to causing death while operating a motor vehicle under the influence of intoxicating liquor that impaired his ability to operate the vehicle. While intoxication may be considered in cases involving manslaughter by culpable negligence, “intoxication[,] within itselfl,] is not the ultimate question in a culpable[-]negligence suit.” McGrew v. State, 469 So.2d 95, 97 (Miss. 1985). Presumably, the circuit court intended to point out that a blood test proving intoxication was not required for Par-tain to be found guilty of manslaughter by culpable negligence. Even if we were to accept Partain’s reading of the circuit court’s order of dismissal, we fail to see how the circuit court’s finding amounts to anything more than harmless error. Pitchford v. State, 45 So.3d 216, 235 (¶ 71) (Miss.2010) (holding that an error is harmless where “the same result would have been reached had it not existed”) (citations omitted). This issue is without merit.

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

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.

      . Partain was represented by two attorneys over the course of the proceedings. On February 5, 2008, the circuit court appointed William Travis as Partain’s counsel. According to Partain, prior to Travis’s appointment, he had retained Jefferson Gilder as his attorney. On February 15, 2008, the circuit court ordered that Gilder be substituted as Partain’s counsel. Partain argues that the acts and omissions of both attorneys resulted in ineffective assistance of counsel.

      . Partain’s original indictment charged him with violating Mississippi Code Annotated section 63-11-30(5), which provides, in pertinent part, that:
      Every person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who[,] in a negligent mannerf,] causes the death of another or mutilates, disfigures, permanently disables or destroys the tongue, eye, lip, nose or any other limb, organ[,] or member of another shall, upon conviction, be guilty of a separate felony for each such death, mutilation, disfigurement[,] or other injury and shall be committed to the custody of the State Department of Corrections for a period of time of not less than five (5) years and not to exceed twenty-five (25) years for each such death, mutilation, disfigurement or other injury....
      Subsection (1) of section 63-11-30(1) states, in pertinent part, that:
      It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; (b) is under the influence of any other substance which has impaired such person’s ability to operate a motor vehicle; (c) has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age to purchase alcoholic beverages under state law, or two one-hundredths percent (.02%) or more for persons who are below the legal age to purchase alcoholic beverages under state law, in the person’s blood based upon grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath....


author: ISHEE, J.,

text:
    Paulette L. KNIGHT, Appellant v. PICAYUNE TIRE SERVICES, INC., Appellee.
    No. 2010-CA-00844-COA.
    Court of Appeals of Mississippi.
    Sept. 13, 2011.
    Rehearing Denied Jan. 24, 2012.

      James M. Priest Jr., attorney for appellant.
    Dorrance “Dee” Aultman Jr., attorney for appellee.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In November 2008, Paulette L. Knight filed suit in the Pearl River County Circuit Court against Picayune Tire Services, Inc. (Picayune Tire) asserting negligence claims related to a 2005 incident wherein Knight fell in Picayune Tire’s parking lot and allegedly suffered injuries. After discovery was conducted, Picayune Tire filed a motion for summary judgment, which the circuit court granted. In its order, the circuit court noted that Knight had entered and exited the premises multiple times before her fall, and Knight could not specifically identify the location of her fall in the photographs, nor did she observe what had caused her fall. Furthermore, Knight failed to present proof of any substance or condition in the parking lot that contributed to her fall and which should have been removed by Picayune Tire. As such, the circuit court determined that Knight’s fall was unrelated to Picayune Tire; rather, it was due to Knight’s failure to observe the conditions of the parking lot at the time of the accident. The case was dismissed on April 13, 2010. Aggrieved, Knight now appeals. Finding no error, we affirm.

FACTS

¶ 2. On December 10, 2005, Knight parked her vehicle in Picayune Tire’s parking lot, exited her vehicle, and entered the store. Shortly thereafter, Knight exited the store and walked back to her vehicle to retrieve her wallet. As she began her return to the store, she asserts that she tripped over something in the parking lot and fell. Knight alleges to have suffered injuries to her back and knees. She filed suit against Picayune Tire in the circuit court in November 2008, claiming that Picayune Tire either created or knew about a dangerous condition that caused or contributed to Knight’s fall in the parking lot and failed to warn Knight of the condition.

¶ 3. During discovery, Picayune Tire deposed Knight. In the deposition, Knight testified that nothing was obstructing her view while she was walking in the area where she fell. She further stated that although she could have looked at the path on which she was walking, she never looked down at the ground as she returned to the store; instead, she continually looked toward the storefront. Knight also admitted that she did not notice anything wrong with the pavement at any time prior to or during the incident, because she had entered and exited the store immediately prior to her fall without any problem. Finally, Knight did not see anything in particular that would have caused her to fall; however, she stated that something “made [her] start stumbling,” and she “tripped.”

¶ 4. Picayune Tire subsequently filed a motion for summary judgment, asserting that no genuine issues of material fact existed and that Knight had not established any facts supporting her claim that the parking lot in question was unreasonably dangerous. Specifically, Picayune Tire argued that the evidence showed the following: (1) Knight had walked through the area in question two times prior to her fall; (2) Knight’s vision of the area was never blocked during the incident; (3) Knight was not observing the area upon which she was walking as she returned to the store; and (4) a crack or uneven asphalt in a parking lot is not a dangerous condition.

¶ 5. After the circuit court reviewed the motion and Knight’s response, the circuit court held a hearing on the matter. The circuit court then granted Picayune Tire’s motion and dismissed the case in an order dated April 13, 2010. In the order, the circuit court noted that Picayune Tire’s factual assertions were supported by Knight’s testimony. The circuit court also stated that the parking lot in question is a typical, common parking lot, and the minor cracks in the asphalt and concrete are not unreasonably dangerous, but they are of the type that one would normally encounter in asphalt or concrete parking lots. The circuit court further held that Knight had not presented any claim or proof “of any type of foreign substance or foreign material, which should have been removed by [Picayune Tire], which caused or contributed to [Knight’s] fall.” The circuit court determined that any conditions which might have been present in the parking lot were “open and obvious.”

¶ 6. Knight timely filed an appeal, claiming the circuit coui't erred in granting summary judgment because genuine issues of material fact existed as to whether an unreasonably dangerous condition was present in Picayune Tire’s parking lot. Finding no error, we affirm the circuit court’s judgment.

DISCUSSION

¶ 7. The Mississippi Supreme Court has held that an appellate court “reviews a trial court’s grant or denial of a motion for summary judgment or a motion to dismiss under a de novo standard.” Copiah County v. Oliver, 51 So.3d 205, 207 (¶ 7) (Miss.2011) (citation omitted). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995) (quoting M.R.C.P. 56(c)). “[W]hen a party, opposing summary judgment on a claim or defense as to which that party will bear the burden of proof at trial, fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987).

¶ 8. Here, Knight has failed to establish that an unreasonably dangerous condition caused or contributed to her fall. Knight had walked through the parking lot from her vehicle to the store and then back to her vehicle without incident two times immediately prior to her fall. Although Knight asserts in her brief that a “seam” in an “irregularly shaped concrete patch” caused her to fall, the record does not support this contention. By her own testimony, Knight has admitted that she cannot identify exactly where she fell in the parking lot or what caused her to “trip,” and she was not observing the ground upon which she was walking prior to or during the fall. Accordingly, Knight has not established that an irregularity in the parking lot created an unreasonably dangerous condition which caused her to become injured.

¶ 9. The circuit court correctly stated that “Mississippi has long recognized that normally encountered dangers such as curves, sidewalks!,] and steps are not hazardous conditions. Often [such pathways] contain crack and changes in elevation; and[,] as such[,] they do not become hazardous conditions simply because they contain minor imperfections or defects.” See, e.g., City of Greenville v. Laury, 172 Miss. 118, 159 So. 121, 122 (1935); City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, 183-85 (1915); Bond v. City of Long Beach, 908 So.2d 879, 882 (¶¶ 7-9) (Miss. Ct.App.2005). As such, we cannot find any genuine issue of material fact that would preclude summary judgment. Accordingly, we affirm the circuit court’s judgment.

¶10. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: GRIFFIS, P.J.,

text:
    Nicholas McBRIDE, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KP-00381-COA.
    Court of Appeals of Mississippi.
    Sept. 27, 2011.
    Rehearing Denied Jan. 10, 2012.

      Nicholas McBride, appellant, pro se.
    Office of the Attorney General By Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Nicholas McBride appeals his conviction of statutory rape under Mississippi Code Annotated section 97 — 3—65(l)(b) (Supp.2010). McBride claims that there was insufficient evidence to support the jury’s verdict for two reasons: (1) the State failed to establish his age and the age of the victim; and (2) the State failed to prove that his actions constituted sexual intercourse as defined by statute. We find no error and affirm.

FACTS

¶ 2. In June 2009, thirteen-year-old Lauren and her cousin went to Riant Marshall’s house in Clarksdale, Mississippi. McBride was living with Marshall at the time. Lauren testified that nothing happened the first time she met McBride. But when Lauren went back to the house a second time, she and McBride had sex. Lauren testified that it was her understanding that McBride was nineteen years old. Lauren also testified that when McBride asked about her age, she told him that she was sixteen years old.

¶ 3. Lauren’s mother testified that she took Lauren to a women’s clinic sometime in June or July, because Lauren had experienced excessive bleeding. During this visit, Lauren’s mother learned that Lauren was sexually active. In August, Lauren’s mother contacted the police.

¶ 4. Corporal Kendrick Walker, with the Clarksdale Police Department, investigated the alleged statutory rape. He interviewed McBride. McBride admitted that Lauren had gotten into his bed with him, and they had sex.

¶ 5. At trial, McBride did not dispute that he had told Corporal Walker he had sex with Lauren. However, he claimed that he was nervous during the interview and failed to define what he meant by the term “sex.” He testified that his use of the word “sex” meant that he had only ejaculated on Lauren’s stomach. McBride denied that there had been any penetration.

¶ 6. The jury found McBride guilty of statutory rape. McBride was sentenced to twenty years in the custody of the Mississippi Department of Corrections, with five years to serve and fifteen years suspended. McBride was also placed on five years of supervised probation. The circuit court denied McBride’s motion for a judgment notwithstanding the verdict or, alternatively, a new trial.

ANALYSIS

Whether there was sufficient evidence to support McBride’s conviction of statutory rape.

¶ 7. McBride argues that the State presented insufficient evidence of his age, Lauren’s age, and that his actions constituted sexual intercourse as defined by statute. In reviewing a challenge of legal sufficiency, this Court must determine whether any rational juror could have found that the State proved each and every element of the crime charged beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). The State must be given the benefit of all reasonable inferences that may be drawn from the evidence. Christian v. State, 859 So.2d 1068, 1071 (¶ 12) (Miss.Ct.App.2003) (citation omitted).

1. Age

¶ 8. McBride claims that the State failed to prove by sufficient evidence that Lauren was under the age of fourteen because the only evidence of Lauren’s age was presented through her own testimony. He also contends that the State failed to prove that he was twenty-four or more months older than Lauren. Again, he claims that Lauren’s testimony alone was not sufficient to establish his age.

¶ 9. Section 97—3—65(l)(b) sets out the following elements that the State must prove for the crime of statutory rape:

(1) The crime of statutory rape is committed when:
(b) A person of any age has sexual intercourse with a child who:
(i) Is under the age of fourteen (14) years;
(ii) Is twenty-four (24) or more months younger than the person; and
(iii) Is not the person’s spouse.

The State was required to prove that Lauren was under the age of fourteen and that McBride was twenty-four or more months older than her.

¶ 10. Lauren testified that her birthday was January 30, 1996. This would have made Lauren thirteen years old on the date of the alleged statutory rape. Laura also testified that McBride was nineteen years old at the time:

Q: Did you find out how old he [McBride] was?
A: Yes.
Q: To your understanding, how old was he or was he at that time?
A: 19.

¶ 11. McBride now claims that Lauren did not have actual knowledge of his age; instead, he argues that Lauren heard his age from her cousin, which would make her testimony inadmissible hearsay. Lauren did not testify that someone told her McBride’s age. She stated that, to her understanding, he was nineteen years old. McBride made no objection to her statement of his age. Without a contemporaneous objection as to hearsay, McBride may not present such argument on appeal. Bailey v. State, 960 So.2d 583, 588 (¶ 19) (Miss.Ct.App.2007).

¶ 12. Age may be adequately proven by testimony. Wright v. State, 856 So.2d 341, 344 (¶ 9) (Miss.Ct.App.2003) (citing Taylor v. State, 744 So.2d 306, 319 (¶ 54) (Miss.Ct.App.1999)). Lauren gave uncontradicted testimony about her age and McBride’s age. McBride made no objection regarding either age. See Rogers v. State, 928 So.2d 831, 835 (¶ 14) (Miss.2006). It was then the jury’s province to determine the credibility of Lauren’s testimony. Verner v. State, 812 So.2d 1147, 1150 (¶ 7) (Miss.Ct.App.2002).

¶ 13. The jury found that Lauren’s testimony was credible evidence that she was under fourteen years of age and that McBride was twenty-four or more months older than her at the time the two had sexual intercourse. This issue has no merit.

2. Sexual Intercourse

¶ 14. McBride also contends that the State failed to prove that he had sexual intercourse with Lauren as that term is defined in section 97-3-65(6), i.e. penetration. The statute states the following:

For the purposes of this section, “sexual intercourse” shall mean a joining of the sexual organs of a male and female human being in which the penis of the male is inserted into the vagina of the female or the penetration of the sexual organs of a male or female human being in which the penis or an object is inserted into the genitals, anus or perineum of a male or female.

Miss.Code Ann. § 97-3-65(6) (Supp.2010).

¶ 15. First, McBride claims that, although he admitted that he “had sex” with Lauren, he did not mean that penetration occurred. He testified that he used the term “sex” to mean that he ejaculated onto her stomach. He claimed to have been too nervous during the investigation to explain himself to Corporal Walker. Conversely, Lauren testified that McBride penetrated her vagina with his penis. It was properly left to the jury to weigh the credibility of Lauren’s testimony against McBride’s alternate definition of the term “sex.” And Lauren’s testimony alone, as the victim of a sex crime, was sufficient to support a guilty verdict where her testimony was not discredited or contradicted by other credible evidence. Miley v. State, 935 So.2d 998, 1001 (¶ 10) (Miss.2006).

¶ 16. Second, McBride argues that he could not have penetrated Lauren because she had gonorrhea and he did not. At trial, Lauren testified that she tested positive for gonorrhea in August 2009. McBride testified that he had never had gonorrhea. There was no medical evidence presented to support McBride’s claim. This was further evidence for the jury to consider when it determined whose story to believe. McBride’s claim that he has never had gonorrhea does not mean that there was insufficient evidence for the jury to conclude that he had sexual intercourse with Lauren.

¶ 17. Viewing the evidence in the light most favorable to the State, we find that sufficient evidence existed to support the jury’s verdict. Therefore, we find no merit to McBride’s appeal and affirm the circuit court’s judgment.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS TO SERVE, FIFTEEN YEARS SUSPENDED AND FIVE YEARS OF SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

LEE, C.J., IRVING, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.

      . A fictitious name is used to protect the identity of the victim.


text:
    Terry Lee TRUELOVE, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01040-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2011.
    Rehearing Denied Jan. 24, 2012.
    Donna Sue Smith, Leslie S. Lee, Jackson, Brenda Jackson Patterson, attorneys for appellant.
    Office of the Attorney General, by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. After repeatedly beating his live-in girlfriend, Sheena Dison, Terry Truelove was found guilty of two counts of domestic violence-aggravated assault. Truelove was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC), for each count, with fifteen years of the sentence in Count II to run concurrently with the sentence in Count I, and five years of the sentence in Count II to run consecutively to the sentence in Count I, for a total of twenty-five years to serve, all as a habitual offender, without eligibility for probation or parole. Aggrieved, Truelove appeals his conviction, claiming that the evidence was insufficient to prove that he caused serious bodily injury, which was a necessary element of domestic violence-aggravated assault. Therefore, he asserts the circuit court erred by denying his motion for a directed verdict. Finding no error, we affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Truelove and Dison began dating in June 2009, and they moved in together in Steens, Mississippi, shortly thereafter. On August 17, 2009, Truelove struck Dison in the face and head and punched her in the nose, stomach, side, and face. He also threatened to kill her with a knife. After the beating, Truelove forced Dison to lie down with him in the bed and threatened to kill her if she left. However, Dison escaped the home by climbing through a bedroom window after Truelove went to sleep. She suffered a broken nose and concussion, and she had numerous bruises and scratches all over her body.

¶ 3. However, Dison and Truelove soon reconciled and moved back in together. A few weeks later on September 7, 2009, they had another altercation, wherein Truelove punched Dison in the head and all over her body with his fists, grabbed her by her hair, cut her with a small metal object, and strangled her. Dison eventually escaped and was rescued by an off-duty police officer. From this altercation, Di-son suffered a broken rib, a loose tooth, and bruises and cuts all over her body.

¶ 4. The original indictment from a Lowndes County grand jury on October 20, 2009, charged Truelove with two counts of domestic violence-aggravated assault and one count of kidnapping. For the first charge of domestic violence-aggravated assault, the indictment stated that Truelove did “unlawfully, feloniouslyt,] purposely, and knowingly, cause serious bodily injury to Sheena Dison, a person with whom he had a current dating relationship, by punching ... Dison in the face and head, [and] breaking her nose.... ” The second charge of domestic violence-aggravated assault stated that Truelove did “unlawfully, feloniouslyt,] purposely, and knowingly, cause serious bodily injury to Sheena Di-son, a person with whom he had a current dating relationship, by striking ... Dison about her body, [and] fracturing one of her ribs....”

¶ 5. On May 20, 2010, the State moved to amend the indictment to include habitual-offender language pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2007). Truelove had previously been convicted in Arizona for attempted aggravated assault and sentenced in 2004 to serve ten years in prison, but he received a suspended sentence and was placed on probation. However, the probation was revoked on June 9, 2006, and Truelove served two and a half years in the Arizona Department of Corrections. Truelove also had been convicted of grand theft of lost property in California and sentenced in 1994 to serve a term of one year and four months in the custody of the California Department of Corrections and Rehabilitation (CDCR). He also had a conviction in California in 1994 of unlawful driving or taking of a vehicle, for which he was sentenced to serve one year and four months in the custody of the CDCR, and another conviction in California in 1989 for selling marijuana or hashish, for which he served two years in the custody of the CDCR.

¶ 6. At trial, Dison testified that on August 17, 2009, she awoke early that morning, got out of bed, went into the living room to turn the television off, but while doing so, she heard a noise outside. She went out the back door to investigate, but did not see anything. After returning to the house, she discovered that Truelove was not in bed, so she began looking for him. She went back outside and encountered Truelove, who told her: “Now you’re going to have to kill me.” Truelove then ran up to Dison, grabbed her hair, pulled her down, and began punching her.

¶ 7. Truelove eventually stopped hitting her and went inside. Dison got up and went back in the house to retrieve her belongings so she could leave. However, Truelove told her she could not leave, grabbed her by her hair again, and resumed beating her. The fight made its way into the bedroom, and Truelove punched Dison in the nose so hard that her nose began to bleed profusely, splattering large clots of blood on the carpet and bedding. Truelove then told Dison to clean up the mess she had made. When she went into the bathroom to clean up, Truelove went into the kitchen and came out with a knife. At this point, his son, Terry, who had been staying at the house, ran out of his room and grabbed the knife from Truelove’s hand.

¶ 8. Truelove then went back into the bedroom and ordered Dison to “lay down.” She tried to get up once, but Truelove told her he would kill her if she left. Dison waited until Truelove fell asleep and escaped through a bedroom window. Dison ran until she came to a country store, where she saw a man who looked familiar. He drove Dison to her grandmother’s house. Dison went to the Winfield emergency room, where she was treated by Dr. Michael Baker. At the hospital, Dison was diagnosed with a fractured nose and a concussion.

¶ 9. A few days later, Truelove and Di-son reconciled and they began living together again. Truelove promised Dison that he would cut down on his drinking and apologized to her. However, on September 7, 2009, another altercation took place. Dison came home from work that evening, and some of Truelove’s friends were at the house. Dison came home from work and was in the kitchen when Truelove came in to talk to her. She noticed that his eyes were larger than normal and that he had a “wild look.” She accused Truelove of smoking crack cocaine, and he slapped her on the top of her head and pushed her. Dison then turned around and sprayed Truelove with pepper spray a co-worker had given her.

¶ 10. She ran out of the house to tell the people sitting outside that Truelove had just hit her. One of the men, Truelove’s uncle, simply got up and left the residence. The other men did nothing to help her. When she went back inside the house to get her purse and leave, she saw Truelove exiting the bathroom, where he had been trying to wash off the pepper spray. Truelove immediately ran over to Dison and began pulling her by the hair and hitting her again.

¶ 11. Truelove dragged Dison to the bedroom, threw her on the bed, got on top of her, and began choking her. She testified that she thought at this point that she was going to die because she could not breathe or call for help. She noticed the pepper spray lying on the bed, so she grabbed it and gave Truelove a full dose of the spray in his face. Truelove jumped off Dison and scrambled to the door to attempt to prevent her from leaving. Dison then bit Truelove’s hand, pushed him out of the way, and ran out of the house to the front yard.

¶ 12. Dison’s purse was still in the living room, so she asked Truelove’s son, Terry, who was outside, to go back in to get it. As Terry was retrieving the purse, Dison was in the front yard, using the water hose to attempt to wash off some of the pepper spray that had accidentally been sprayed on her. Truelove ran back outside, pushed Dison down, kicked her, and dragged her by her hair back into the house. Terry tried to pull Truelove off of Dison, while Truelove kicked Dison in the head, and hit her with a small metal object across her back, neck, and one of her ears. Dison begged Truelove to release her, and he said he would allow her to leave only after she cleaned up the mess of blood and pepper spray on the floor.

¶ 13. Dison pretended to clean up the floor, but when Truelove went into another room, she ran to the bedroom, found her tennis shoes, and put them on. She grabbed her purse, bolted out the front door, and ran down the road. A truck with a man and his wife inside saw Dison running and stopped to give her a ride. The man, Lamar Peacock, was an off-duty officer with the Columbus Police Department. He testified that he almost ran over Dison as she was running, bloodied and wet, down the road. When their truck pulled over to help her, Dison told the Peacocks that her boyfriend had just beaten her. They urged her to report the incident to the police.

¶ 14. The couple took Dison back to her place of employment and helped her call the police and an ambulance. Dison stated that she did not want to go to the hospital, because all she wanted to do was “just lay down and go to sleep.” She testified that an emergency medical technician (EMT) told her that she probably had a concussion after he saw blood running out of her ears and her eyes “rolling off from the light” when he shone a flashlight into her eyes. She also stated that she felt a horrible pain in her lungs when she tried to breathe and had bruising around her ribs. After the EMT cleaned her up, the police took photographs of her injuries. The next day, after a recommendation from a police detective handling the case, Dison sought medical treatment at the Millport Family Practice Clinic. She waited to see the doctor, but the doctor was unable to see her that day. She did not make a follow-up appointment, nor did she seek further medical care.

¶ 15. Deputy Todd Mistrot, with the Lowndes County Sheriffs Department, testified he responded to the 911 call on September 7, 2009. He saw the bruises, blood, and red marks on Dison’s body. Deputy Mistrot went with other officers to Truelove’s house to investigate. When they arrived at the house, one of the officers saw, through the bedroom window, a man changing bloody sheets. Truelove answered the door to the house, and Deputy Mistrot arrested him. Deputy Mistrot took the sheets and pillows from the bed to preserve them as evidence, and he took multiple photographs of the crime scene. Blood was on the walls, window casing, door frame, carpet, and sheets in the bedroom. Deputy Mistrot stated that the “sheets and the pillows were pretty well soaked with blood.” He also stated that he saw a trail of blood in the hallway leading to the bedroom. Dr. Baker, Dison’s treating physician after the first beating, also testified. He stated that a CT scan showed that Dison had a fractured nose. She also had numerous bruises on her body and a concussion.

¶ 16. On the witness stand, Truelove gave a different account of both events. He claimed that he broke Dison’s nose by accident in early August 2009, not on August 17, 2009, when he threw back his elbow to get away from his dog that had jumped on the couch. Truelove claimed that they were sitting on the couch playing fetch with his dog, a pit bull. The dog jumped up on Truelove and scared him, and as he jerked his elbow back, he accidentally hit Dison in the face, who was sitting next to him.

¶ 17. Truelove also claimed that Dison sought medical attention after the incident for the sole purpose of securing drugs because she was an addict. Dison had been smoking methamphetamine with her friends earlier that night. Truelove went to sleep, but he woke up in the middle of the night to find Dison “tweaking” from the effects of the drug. She ran out the back door of the house, but came back in and accused Truelove of being in the bathroom with another woman. Truelove said they had words, but they went back to bed. When he woke up the next morning, Dison had stolen the money in Truelove’s wallet, along with some of his prescription medications, and she had left the house. A few days after she left, Dison spoke to Truelove on the phone. During the conversation, he apologized and asked her to come back home.

¶ 18. On the night of September 7, 2009, Truelove testified that Dison came home from work and accused him of being high on drugs because his eyes were bulging. Truelove stated that his eyes regularly bulged because he had hyperthyroidism. He stated that Dison sprayed him with pepper spray, and he went into the bathroom to wash it off. As he was washing himself in the bathtub, Dison came in and tried to spray him again. He finally got out of the tub and protected himself by restraining Dison with a shower curtain. He told Dison to clean up the mess and open the windows to get the smell out. While he went to the bedroom to change clothes, Dison was in the front yard, talking to Terry and smoking cigarettes. Di-son soon came back into the house and resumed her attack with the pepper spray. He went back to the bathroom to wash off, and Dison grabbed her shoes and purse and ran out of the house.

¶ 19. The prosecution introduced into evidence pictures of the house, with blood splattered on the walls, door frames, bed linens, and floors. While responding to questions about the photographs showing the condition of the home’s interior after the altercation, Truelove claimed that the blood on the sheets was from Dison’s menstruation. He also stated that the pepper spray was a dark orange color, similar to the color of blood, and that the photographs depicted pepper spray on the sheets, door frame, and walls, and not blood. Truelove further admitted to hitting Dison in September 2009, but he insisted he did not punch her with his fists, choke her, or drag her through the house by her hair. He also admitted he had hit Dison on other occasions.

¶20. The prosecution also introduced into evidence photographs of Dison’s injuries from the September 2009 beating. Truelove claimed that because Dison was Caucasian, she bruised easily. The photographs showed Dison with a busted lip, black eye, red marks around her throat and neck, fingernail marks around her neck and shoulders, bruising on her legs and torso, and dried blood around one of her ears. When asked about Dison’s black eye, Truelove stated that it was make-up, and not the result of an injury. He also claimed that the picture of blood coming out of Dison’s ear was due to a tumor she had behind her ear, not due to any injuries he might have inflicted. He further opined that the scratches and bruises shown on the photographs were due to Dison being restrained by the shower curtain when he was trying to subdue her from spraying him with pepper spray.

¶ 21. After the State concluded its casein-chief, Truelove moved for a directed verdict, which the circuit court denied. After all of the evidence had been presented for both sides, the jury delivered a guilty verdict on the two counts of domestic violence-aggravated assault, but it acquitted Truelove on the charge of kidnapping.

DISCUSSION

¶ 22. Truelove argues that the circuit court erred by denying his motion for a directed verdict, because the State failed to prove that he had inflicted serious bodily injury upon Dison. He claims that a broken nose, concussion, and broken rib are not serious, life-threatening injuries, and the State did not submit proper medical proof to support a finding that Dison suffered from a broken rib.

¶ 23. Our standard of review of a denial of a motion for a directed verdict is clear. If upon our review, 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,” then we will not hesitate to affirm a trial court’s denial of a motion for a directed verdict. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The question is not whether this Court finds that the evidence established Truelove’s guilt beyond a reasonable doubt, but 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. (citation omitted).

¶ 24. Considering the evidence in the light most favorable to the State, we find that there was sufficient evidence to convict Truelove. Domestic violence-aggravated assault is covered by two applicable subsections under Mississippi Code Annotated section 97-3-7 (Supp.2011). Section 97-3-7(2) provides:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[.]

In addition, section 97-3-7(4) states:

A person is guilty of aggravated domestic violence who commits aggravated assault as described in subsection (2) of this section against, or who strangles, or attempts to strangle ... a person who has a current or former dating relationship with the defendant.... For the purposes of this section, “strangle” means to restrict the flow of oxygen or blood by intentionally applying pressure on the neck or throat of another person by any means.

Serious bodily injury is that “which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Buffington v. State, 824 So.2d 576, 580 (¶ 15) (Miss.2002). While Truelove maintains that a broken nose and concussion are not serious injuries, case law and common sense do not support his argument.

¶ 25. First, a broken nose has been found to constitute a serious bodily injury. Ames v. State, 17 So.3d 130, 137 (¶¶ 30-31) (Miss.2009). Dr. Baker testified that Di-son suffered a broken nose from the first altercation, and Officer Peacock stated that when he picked up Dison after the second altercation, her nose was still crooked. Proof of the broken nose alone was enough to support a claim of serious bodily injury. However, Dr. Baker also characterized her “mild” concussion as being a “closed-head trauma.” Common sense necessitates a finding that a “closed-head” trauma is a serious bodily injury. Therefore, we find Truelove’s issue regarding the first count of domestic violence-aggravated assault is without merit.

¶ 26. Truelove further asserts that the State failed to provide medical proof that Dison suffered a broken rib from the second altercation. Dison testified that Truelove beat and kicked her in the ribs. After the beating, she could barely breathe, and when she tried to take a breath, her lungs felt like they could not hold any more air. Photographic evidence shows bruising around Dison’s ribs. Officer Peacock testified that when he found Dison, she told him that she was having trouble breathing and that her sides were hurting. In addition, Deputy Mistrot testified that when he saw Dison that night, she had both old and new bruises around her rib cage. Dison informed Deputy Mistrot that Truelove had beaten and kicked her in the ribs, and she was having trouble breathing. The EMT also noted, upon his examination of Dison, that the area around her rib cage was very tender.

¶ 27. After reviewing the entire record, we find that the testimony regarding Di-son’s assertions that Truelove beat and kicked her in the ribs, her experience of severe pain and difficulty breathing after the beating, and the photographic evidence showing bruising and redness around her ribs support a finding that Truelove was guilty of domestic violence-aggravated assault for the September 2009 beating. Thus, this issue is also without merit.

¶ 28. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF COUNTS I AND II, DOMESTIC VIOLENCE-AGGRAVATED ASSAULT, AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY YEARS FOR EACH COUNT, WITH FIFTEEN YEARS OF EACH COUNT TO RUN CONCURRENTLY AND FIVE YEARS OF THE SENTENCE FOR COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE FOR COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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


text:
    George Albert HUDSON Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KP-00796-COA.
    Court of Appeals of Mississippi.
    Oct. 18, 2011.
    Rehearing Denied Jan. 24, 2012.

      George Albert Hudson Jr., appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., MAXWELL and RUSSELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On May 15, 2009, a Lincoln County grand jury indicted George Albert Hudson Jr. for armed robbery and aggravated assault. On January 4, 2010, the State filed a motion to amend the indictment based on Hudson’s habitual-offender status, which the Lincoln County Circuit Court granted. At trial, the jury found Hudson not guilty of armed robbery, but guilty of aggravated assault. The circuit court sentenced Hudson as a habitual offender to twenty years in the custody of the Mississippi Department of Corrections (MDOC), without eligibility for parole or probation. Hudson filed a post-trial motion for a new trial or, in the alternative, for a judgment notwithstanding the verdict, which the circuit court denied.

¶ 2. Feeling aggrieved, Hudson appeals and argues that: (1) the circuit court erred in failing to issue a cautionary instruction to the jury regarding the victim’s testimony; (2) the circuit court erred in failing to admit the victim’s criminal record into evidence; (3) his indictment was illegal; (4) his sentence is illegal; (5) the circuit court erred in allowing the jury’s verdict to stand where Hudson was convicted of aggravated assault and acquitted of armed robbery; (6) the circuit court erred in failing to grant a change of venue based on pretrial publicity; (7) the circuit court erred in failing to inform him of his right to testify; and (8) the cumulative effect of the above errors deprived him of his right to a fair trial.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. On July 11, 2008, Chad Moak and his girlfriend, Leslie Rutledge, stopped at the A-l Quick Stop in Lincoln County, Mississippi, to buy candy for their children, who were riding in the car with them. Moak testified that as he exited the store, he saw Hudson parked next to his car. According to Moak, he had known Hudson since kindergarten. Moak testified that when he approached Hudson’s car to speak to him, Hudson pulled out a gun and told him, “Get in, or I’m going to shoot you.” Moak got into the car with Hudson, and they drove to a nearby trailer park. At the trailer park, Moak testified that Hudson said, “Give me the money, or I’m going to shoot you.” Moak had cashed his economic stimulus check from the Internal Revenue Service that day and testified that he had between $600 and $700 dollars with him. Moak testified that he gave Hudson the money, and Hudson shot him in the chest.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Cautionary Instruction

¶ 6. Hudson contends that the circuit court erred in failing to grant a cautionary instruction for Moak’s testimony given that, at the time of the trial, Moak was incarcerated for possession of marijuana. However, the record is void of any request for a cautionary instruction by Hudson. The Mississippi Supreme Court has held that “[a] trial court has no duty to give unrequested instructions.” King v. State, 857 So.2d 702, 717 (¶24) (Miss.2003). Because Hudson failed to request a cautionary instruction at trial, he is procedurally barred from raising the issue on appeal. Id.

¶7. Procedural bar notwithstanding, Hudson was not entitled to a cautionary instruction. While our supreme court has highlighted the importance of cautionary instructions when testimony is offered by accomplices or “jail-house snitches,” it has never required such an instruction where the victim was incarcerated for an unrelated crime. See Williams v. State, 32 So.3d 486, 492 (¶ 21) (Miss.2010) (stating that accomplice testimony should be “looked upon with suspicion and distrust”); Sherrell v. State, 622 So.2d 1233, 1236 (Miss.1993) (warning that “jailhouse[-]snitch” testimony should be viewed with caution and suspicion). This issue lacks merit.

2. Victim’s Criminal Record

¶ 8. Hudson also contends that the circuit court erred when it failed to admit Moak’s criminal record into evidence. Again, based on our review of the record, there is no indication that Hudson sought to introduce such evidence at trial. Our supreme court has consistently held that a circuit court “cannot be held to err on an issue not presented to it for decision.” Pitchford v. State, 45 So.3d 216, 232 (¶ 57) (Miss.2010). Because Hudson never sought to introduce Moak’s criminal record into evidence, he is procedurally barred from raising the issue on appeal.

¶ 9. Procedural bar notwithstanding, evidence of Moak’s criminal record would have been inadmissible character evidence. While evidence of a victim’s character is generally irrelevant, it may be introduced in limited circumstances under Rule 404(a)(2) of the Mississippi Rules of Evidence. One such circumstance would be “where the defendant claims that the victim was the initial aggressor and that the defendant’s actions were in the nature of self-defense.” M.R.E. 404 cmt. Hudson has not alleged that he shot Moak in self-defense. Therefore, we see no basis for admitting Moak’s criminal record into evidence, especially where Hudson cross-examined Moak regarding his criminal activity, and Moak admitted that he was currently in the custody of the MDOC for possession of marijuana. This issue lacks merit.

3. Illegal Indictment

¶ 10. Hudson argues that his mul-ti-count indictment, charging him with armed robbery and aggravated assault, was illegal. Hudson takes issue with the fact that the charges from the multi-count indictment arose from a single act. However, as Hudson points out in his brief, the State filed the multi-count indictment pursuant to Mississippi Code Annotated section 99-7-2(1) (Rev.2007), which states:

Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.

Based on the plain language of section 99-7-2(1), it was not illegal for the State to file a multi-count indictment charging Hudson with armed robbery and aggravated assault. Section 99 — 7—(l)(a) specifically permits crimes stemming from the same act or transaction to be charged in the same indictment. Based on Moak’s testimony, Hudson shot him after he robbed him of his economic stimulus check (i.e. Hudson’s criminal acts arose from the same act or transaction). This assignment of error is without merit.

¶ 11. Hudson also contends that his indictment is illegal because it failed to apprise him of the charges he faced and prevented him from preparing a proper defense. However, the record completely belies this contention. The indictment tracks the language of the statutes proscribing armed robbery and aggravated assault and cites the applicable statutes. Our supreme court has held that “as a general rule, an indictment which tracks the language of a criminal statute is sufficient to inform the defendant of the charge against him.” Neal v. State, 15 So.3d 388, 397 (¶ 14) (Miss.2009) (quoting Jordan v. State, 995 So.2d 94, 109 (¶ 47) (Miss.2008)).

¶ 12. We note that on January 4, 2010, the State filed a motion to amend the indictment to allege that Hudson was a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007), which the circuit court granted. Rule 7.09 of the Uniform Rules of Circuit and County Court provides:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an [sic] 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.... Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

Therefore, “an indictment may be amended to charge an offender as a habitual offender only if the offender is given a ‘fair opportunity to present a defense and is not unfairly surprised.’ ” Wilson v. State, 935 So.2d 945, 949 (¶ 10) (Miss.2006) (quoting URCCC 7.09). The State put Hudson on notice that it sought to allege habitual-offender status months before trial. The circuit court granted the motion on April 21, 2010 — over a month prior to trial. As such, Hudson cannot complain that his amended indictment precluded him from presenting a defense or resulted in unfair surprise. This issue is without merit.

A Illegal Sentence

¶ 13. Hudson argues that the sentence imposed on him is illegal because it does not allow for parole or probation. As mentioned above, Hudson was eligible for an enhanced sentence as a habitual offender. As a habitual offender, the circuit court was required to sentence Hudson to the maximum term of imprisonment for aggravated assault — twenty years— without eligibility for parole or probation. Miss.Code Ann. § 99-19-81. “The general rule in Mississippi is that [an appellate court] will not disturb a sentence that does not exceed the maximum term allowed by the statute.” Thomas v. State, 48 So.3d 460, 478 (¶ 56) (Miss.2010) (citing Isom v. State, 928 So.2d 840, 850 (¶ 41) (Miss. 2006)). Because Hudson’s sentence does not exceed the maximum term allowed for aggravated assault, it will not be disturbed on appeal. This issue is without merit.

5. Acqvittal

¶ 14. Hudson argues that armed robbery encompasses the elements of aggravated assault, and, therefore, his acquittal of armed robbery precludes his conviction for aggravated assault. We disagree. Aggravated assault is defined as “attempting] to cause or purposely or knowingly causing] bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm....” Miss.Code Ann. § 97-3-7(2)(b) (Supp.2011). However, armed robbery is defined as “feloniously taking] or attempting] to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.... ” Miss.Code Ann. § 97-3-79 (Rev.2006). Given the statutory definitions of these crimes, we find no merit in Hudson’s argument that the crime of aggravated assault is encompassed by armed robbery. A jury could certainly find Hudson guilty of aggravated assault even if it did not find him guilty of armed robbery because the statutory elements of the two crimes differ. See Davis v. State, 750 So.2d 552, 564 (¶¶ 48-49) (Miss.Ct.App.1999) (holding that armed robbery and aggravated assault are “two legally separate, distinct crimes” requiring proof of different elements). Accordingly, Hudson’s acquittal of armed robbery does not warrant reversal of his aggravated-assault conviction. This issue is without merit.

6. Change of Venue

¶ 15. Hudson contends that the circuit court erred when it failed to grant a change of venue. However, based on our review of the record, there is no evidence that Hudson sought a change of venue. As stated above, the circuit court “cannot be held to err on an issue not presented to it for decision.” Pitchford, 45 So.3d at 232 (¶ 57). As such, this assignment of error is without merit.

7. Right to Testify

¶ 16. Hudson alleges that the circuit court did not advise him of his right to testify or not to testify. However, the record completely belies Hudson’s allegation. At trial, the circuit court advised Hudson of his right to testify as follows:

BY THE COURT: Mr. Hudson, if you would approach, please.... Before I swear you in, let me assure you that I’m not going to ask you anything about the case or the facts of the case, I’m only going to inquire, make sure that you understand your right to testify and your right not to testify in this case.... And if, during any of this — if, during this discussion, you wish to stop and talk to your attorney at any time, you may do so. All right?
BY HUDSON: Yes, sir.
BY THE COURT: Okay. Mr. Hudson, you’ve been here, this is your trial today, and I just want to make sure [that] you understand that the law gives you certain rights, and particularly I want to discuss with you right now your right to testify.
You have the right to testify. You have the right to take the stand and testify in your own defense. The law also gives you the right not to testify. You don’t have to testify, and you don’t have to offer any evidence at all. The burden of proof is on the State. You have both of those rights. If you choose not to testify, the State can’t comment on that. They can’t comment to the jury or point out the fact that you did not take the stand and testify. If you do testify, you will be subject to cross-examination. Just like when the State put on witnesses, your attorney had an opportunity to cross-examine them. And if you took the stand, the State would have an opportunity to cross-examine you. The choice as to whether or not you wish to testify is yours to make, but once made can’t be unmade. In other words, once you take the stand and testify, you can’t then decide [that] you don’t want to testify. And if you give up the chance to present evidence, once your side rests[,] you can’t decide then, [“]oh, I think I want to testify.[”] Once the case is over, that decision’s been made. You understand that?
BY HUDSON: Yes, sir.
BY THE COURT: Okay. The decision is yours to make. It’s one that you should make. You should make it after consultation and discussion with your attorney, but it’s ultimately your decision. You understand that?
BY HUDSON: Yes, sir.
¶ 17. Following the above exchange between Hudson and the circuit court, the court allowed Hudson to consult with his attorney. After consulting with his attorney, Hudson decided not to testify. Based on the above, we hold that the circuit court adequately advised Hudson of his right to testify. This issue is without merit.

8. Cumulative Error

¶ 18. Finally, Hudson argues that the cumulative effect of the above alleged errors, deprived him of his right to a fair trial. An appellate court “may reverse a conviction and/or sentence based upon the cumulative effect of errors that independently would not require reversal.” Anderson v. State, 62 So.3d 927, 944 (¶ 62) (Miss.2011) (quoting Goff v. State, 14 So.3d 625, 672 (¶ 210) (Miss.2009)). However, in the present case, we have found no error. Consequently, Hudson’s allegation of cumulative eiTor is without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.

      . Rule 404(a)(2) states:
      (a) Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in
      conformity therewith on a particular occasion, except:

      (2) Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution to rebut evidence that the victim was the first aggressorf.]

      . The indictment reads, in pertinent part, as follows:
      George Albert Hudson, Jr. did wilfully, unlawfully, and feloniously take from the person or presence of Chad Timothy Moak, against his will, cash moneyf,] which was the personal property of Chad Timothy Moak, by putting the said Timothy Chad Moak [sic] in fear of immediate injury to his person by the display and exhibition of a deadly weapon, to wit; a pistol, contrary to and in violation of Section 97-3-79 of the Mississippi Code of 1972, this being count one of the indictment[.]

      George Albert Hudson, Jr. did wilfully, unlawfully, feloniously, and purposely or knowingfly] cause bodily injury to one Chad Timothy Moak, with a deadly weapon, to wit; a pistol, contrary to and in violation of Section 97-3-7 of the Mississippi Code of 1972, this being count two of the indictment. ...

      . Hudson had previously been convicted of grand larceny, burglary of a dwelling, voyeurism, and uttering a forgery.


text:
    William Dewayne SAVELL a/k/a Dewayne Savell, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01866-COA.
    Court of Appeals of Mississippi.
    Oct. 25, 2011.
    Rehearing Denied Jan. 24, 2012.

      William Dewayne Saveli, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. William Dewayne Saveli filed a “Petition for an Order of Disinterment for Autopsy” in the Circuit Court of Neshoba County. The circuit court treated it as a motion for post-conviction collateral relief and dismissed the motion. We find no error and affirm the dismissal.

FACTS

¶ 2. On September 25, 2004, Saveli was convicted of murder under Mississippi Code Annotated section 97-3-21 (Rev. 2006). He was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Saveli appealed to the Mississippi Supreme Court, and the appeal was deflected to this Court. We affirmed his conviction and sentence on May 9, 2006. Savell v. State, 928 So.2d 961, 974 (¶ 4) (Miss.Ct.App.2006).

¶ 3. On April 16, 2007, Saveli filed his application for leave to proceed in the trial court on a motion for post-conviction collateral relief with the supreme court. On May 9, 2007, the supreme court denied the motion.

¶ 4. On September 15, 2008, Saveli filed his second application for leave to proceed with the supreme court. By order dated October 7, 2008, the supreme court dismissed the application as procedurally barred as a successive writ. The supreme court also held that “any future filings may subject Saveli to sanctions.”

¶ 5. On September 10, 2009, Saveli filed his “Petition for an Order of Disinterment for Autopsy.” In the petition, Saveli asked the circuit court to order disinterment of the victim Mandy Davis’s body to determine if the manner of death was homicide. Previously, Dr. Steven Hayne had determined Davis’s cause of death to be nine stab wounds to the chest, but it is unclear if the manner of death was certified as a homicide in Dr. Hayne’s report. Saveli argued that a second autopsy is necessary to sustain his murder conviction because the manner of death must be designated as a homicide for him to be criminally liable for Davis’s death.

¶ 6. On October 4, 2010, Saveli filed yet another application for leave to proceed with the supreme court. The supreme court dismissed the application after it found: Saveli’s arguments were without merit; the application was time-barred; and since it was his third application, it was also procedurally barred as a successive writ. The supreme court sanctioned Saveli by requiring him to pay one hundred dollars.

¶ 7. On October 15, 2010, the circuit court entered an order that dismissed the motion for failure to obtain leave from the supreme court as required by Mississippi Code Annotated section 99-39-7 (Supp. 2010). Saveli now appeals.

ANALYSIS

¶ 8. Saveli’s case was appealed on the merits to the supreme court. The appeal was deflected to this Court for consideration. This Court affirmed the conviction. Saveli did not file a petition for writ of certiorari with the Mississippi Supreme Court. He did file a petition for writ of certiorari with the United States Supreme Court, and it was denied. Savell v. Mississippi, — U.S. -, 131 S.Ct. 2143, 179 L.Ed.2d 899.

¶ 9. Jurisdiction over any subsequent filing for post-conviction collateral relief is vested in the Mississippi Supreme Court. Mississippi Code Annotated section 99-39-7 provides:

The motion under this chapter shall be filed as an original civil action in the trial court, except in cases in which the prisoner’s conviction and sentence have been appealed to the Supreme Court of Mississippi and there affirmed or the appeal dismissed. Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the justices of the Supreme Court of Mississippi.

Saveli’s conviction and sentence were affirmed by this Court on direct appeal; therefore, the motion shall not be filed in the trial court until it is first presented to a quorum of the justices of the supreme court and an order granted allowing the filing of the motion for post-conviction collateral relief in circuit court. Id.

¶ 10. Accordingly, the Mississippi Supreme Court has initial jurisdiction over a post-conviction proceeding where the appellate court is the one that last exercised jurisdiction in the case. See Evans v. State, 485 So.2d 276, 283 (Miss.1986). Without permission from the supreme court, Saveli had no right to proceed before the circuit court. Accordingly, we affirm the circuit court’s dismissal of the motion for lack of jurisdiction.

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

LEE, C.J., IRVING, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ, CONCUR.

      . We note that Saveli's fourth application for leave to proceed in the trial court is currently pending in the supreme court.