author: RANDOLPH, Justice,

text:
    Samuel PARRAMORE v. STATE of Mississippi.
    No. 2008-KA-00357-SCT.
    Supreme Court of Mississippi.
    March 26, 2009.

      Justin Taylor Cook and Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   RANDOLPH, Justice,

for the Court.

¶ 1. Samuel Parramore was convicted in the Circuit Court of Harrison County, Mississippi, on counts of statutory rape and unlawful touching of a child for lustful purposes. He was sentenced to forty years for the statutory-rape conviction and to ten years for the unlawful-touching conviction, to run consecutively, for a total of fifty years in the custody of the Mississippi Department of Corrections (“MDOC”). Following the denial of his “Motion for Judgment Non Obstante Verdicto or for New Trial in the Alternative,” Parramore filed notice of appeal.

FACTS AND PROCEEDINGS AT TRIAL

¶2. From February until September 2001, seven-year-old K.A.M. was left in the care of her mother’s live-in boyfriend, Par-ramore, while her mother was on U.S. Navy deployment to Guam. At trial, K.A.M., then age twelve, testified that during that period Parramore “raped” her. K.A.M. could not recall the number of times, but stated that it occurred “more than once,” and provided the jury with descriptive accounts.

¶ 3. K.A.M. recalled that each incident occurred in the evening, when she was lying in bed. On one occasion, she testified that Parramore entered her bedroom, got into bed with her, and began touching her buttocks. She stated that Parramore then rolled her over onto her back, removed her underwear, and felt around her “private part.” K.A.M. testified that Par-ramore then “put his private part into [her] private part.” While K.A.M. never actually saw Parramore’s “private part,” she was able to discern as much because she could distinguish between his hand and his “private part.” According to K.A.M., she then began “scratching, kicking, and screaming” in an effort to get Parramore away from her. In response, K.A.M. stated that Parramore “would put duct tape over her mouth or put a pillow over [her] head.” According to K.A.M., Parramore placed the tape “all around [her] head,” taped her wi'ists behind her back, and again placed his “private part” inside hers. K.A.M. testified that when it was over, Parramore would remove the tape and leave the room. On one occasion, K.A.M. stated that Parra-more apologized, explaining that his parents had done the same thing to him. She then added, “but he would keep doing it.” K.A.M. further testified that she did not immediately inform her mother of these incidents for fear of how she would react and what Parramore would do to both of them in response.

¶ 4. K.A.M. did not inform anyone of the incidents until approximately two years later, when living with her mother in Jacksonville, Florida. By this time, Parramore was no longer living with them. K.A.M. testified that her mother told her that, “[she] could tell her anything and to trust her.” After hearing this, K.A.M. informed her mother that Parramore had “raped” her. This disclosure was corroborated by K.A.M.’s mother.

¶ 5. The mother then called the Jacksonville Police Department, and a police detective spoke with K.A.M. The mother then took K.A.M. to the Children’s Crisis Center in Jacksonville where they met with forensic interviewer Stephanie Cox, who later testified as an expert witness for the State. The mother testified that K.A.M. also received counseling for approximately two years through the Family Service Center, a program provided by the Navy.

¶ 6. Cox conducted two interview sessions with K.A.M., both of which were videotaped and played before the jury. Regarding K.A.M.’s failure to report these incidents for almost two years, Cox testified that “children act different ways,” and that such a delay in reporting is not uncommon. As to K.A.M.’s behavior during the interviews, Cox testified that K.A.M. answered questions uniformly throughout and that her behavior and demeanor were consistent with that of other sexually abused children whom Cox had interviewed. Based on the consistency of her answers, Cox opined that K.A.M. had been neither influenced nor coached. On cross-examination, Cox testified that K.A.M. had differentiated between telling the truth and telling a lie, therefore, she believed K.A.M. was telling the truth. However, Cox admitted that if a child were merely telling her things that the child believed to be true, she likely would not be able to tell the difference.

¶ 7. Parramore was the sole witness for the defense. He testified that, other than a few instances when he had to discipline K.A.M., he never laid an untoward hand on her. He stated that he loved 'K.A.M. and took care of her as he would his own child. According to Parramore, he and the child’s mother met in 1999 on the Seabee base in Gulfport. They became romantically involved several months later, and began living together in late 2000. Parramore testified that there were two six-month periods when the mother was on deployment and K.A.M. was left in his care. These were, specifically, from February until September 2001, when KA.M.’s mother was deployed to Guam, and in 2002, when she was deployed to Japan. Parramore stated that during both periods, he took care of K.A.M. by feeding her, washing and ironing her clothes, and disciplining her when necessary. According to Parramore, K.A.M.’s mother ended their relationship after returning from Japan. Nonetheless, Parramore further testified that the mother suggested that he move to Jacksonville with them to help take care of K.A.M. In December 2002, Parramore moved into an apartment in Jacksonville. K.A.M. and her mother arrived the following month. Parramore testified that he saw K.A.M. and her mother almost daily, while helping the mother to fix up her house and babysitting K.A.M.

¶ 8. In March 2003, Parramore became involved with a new girlfriend, who soon became his fiancée. On August 1, 2003, Parramore testified that he called K.A.M.’s mother after she called his fiancée and made accusations against him. According to Parramore, he inquired why she was doing this and her only response was that the police were looking for him.

II9. Parramore further testified that on August 24, 2003, he was at a club with a friend when K.A.M.’s mother arrived. According to Parramore, she signaled him to call her. Later that evening, Parramore stated that K.A.M.’s mother called him and suggested that they meet to talk. According to Parramore, they subsequently met in the local Krystal’s parking lot. Parra-more testified that K.A.M.’s mother got into his vehicle and began apologizing, informing him that she wanted to marry him and have his children. According to Par-ramore, they then began “messing around,” eventually returning to his residence and engaging in “sexual contact.” Thereafter, Parramore testified that he returned her to her vehicle in the Krystal’s parking lot. When K.A.M.’s mother saw a photograph of Parramore and his fiancée on his dashboard, Parramore stated that she first asked him if that was the woman he was going to leave her for, and then told him that he was going to pay for this. At the close of Parramore’s case-in-chief, the State called K.A.M.’s mother, who denied seeing Parramore at the club or meeting him in the Krystal’s parking lot.

¶ 10. Parramore was indicted for statutory rape, pursuant to Mississippi Code Annotated Section 97 — 3—65(l)(b), and for the touching of a child for lustful purposes, pursuant to Mississippi Code Annotated Section 97-5-23(1). At trial, the jury found Parramore guilty of statutory rape and the unlawful touching of a child for lustful purposes. He was sentenced to forty years for the statutory-rape conviction and to ten years for the unlawful-touching conviction, to run consecutively, for a total of fifty years in the custody of the MDOC. Parramore subsequently filed a “Motion for Judgment Non Obstante Ver dicto or for New Trial in the Alternative,” which was denied by the circuit court. . From this ruling, Parramore now appeals.

ISSUE

¶ 11. This Court will consider:

Whether the circuit court abused its discretion in failing to grant Parramore’s motion for a new trial on the grounds that the verdict was against the overwhelming weight of the evidence.

ANALYSIS

¶ 12. An individual may be found guilty of rape on the uncorroborated testimony of the prosecuting witness, where the testimony is not discredited or contradicted by other credible evidence. See Withers v. State, 907 So.2d 342, 353 (Miss. 2005) (persons accused of statutory rape “may be found guilty on the uncorroborated testimony of a single witness.”) (citation omitted); Killingsworth v. State, 374 So.2d 221, 223 (Miss.1979) (“[wjhile it is true that a conviction for rape may rest on the uncorroborated testimony of the person raped, that testimony should always be scrutinized with caution.”); Dubose v. State, 320 So.2d 773, 774 (Miss. 1975) (“the testimony of the victim of a rape may be sufficient to support a guilty verdict where the victim’s testimony is neither contradicted nor discredited by other evidence or by surrounding circumstances.”); Blade v. State, 240 Miss. 183, 188, 126 So.2d 278, 280 (1961) (the testimony of the prosecutrix in a rape case “does not need corroboration.... ”). Thus, Par-ramore does not attempt to contest the legal sufficiency of his conviction on appeal. Rather, he avers that the jury verdict was contrary to the overwhelming weight of evidence.

¶ 13. According to this Court: “[a] motion for new trial challenges the weight of the evidence. Sheffield v. State, 749 So.2d 123, 127 (Miss.1999). A reversal is warranted only if the trial court abused its discretion in denying a motion for new trial.” [Ivy v. State, 949 So.2d 748, 753 (Miss.2007)] (emphasis added). In Bush [v. State, 895 So.2d 836 (Miss.2005) ], this Court set out the standard of review for weight of the evidence, stating:

[wjhen reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So.2d 948, 957 (Miss.1997). We have stated that on a motion for new trial:
the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.
Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000).... [Tjhe evidence should be weighed in the light most favorable to the verdict. Herring, 691 So.2d at 957.

Bush, 895 So.2d at 844.

Wilkins v. State, 1 So.3d 850, 854 (Miss. 2008).

¶ 14. Parramore’s argument on appeal simply raises the same points of contention that were part of his trial defense. These include challenges regarding: the accuracy and veracity of K.A.M.’s testimony, the credibility of K.A.M.’s mother’s testimony, the two-year delay before K.A.M. reported the incidents, the fact that no one from the surrounding apartments ever responded to K.A.M.’s alleged screaming, and the absence of any physical evidence connecting him to the crime. However, Parramore fails to point to anything in the record negating the evidence presented by the State. K.A.M. provided testimony at trial, and the two videotaped sessions with Cox were consistent with her testimony. See Withers, 907 So.2d at 353 (persons accused of statutory rape “may be found guilty on the uncorroborated testimony of a single witness.”) (citation omitted). Parramore’s assertions were matters of fact for the jury to resolve. See Collier v. State, 711 So.2d 458, 462 (Miss.1998) (“[o]ur case law is axiomatic on the proposition that the jury is arbiter of the credibility of testimony.”). Unquestionably, this type of case “should always be scrutinized with caution.” Killingsworth, 374 So.2d at 223. However, while “the prosecutrix’ testimony should be scrutinized with judgment and care, ‘no [unreasonable suspicion should be indulged against the complaining witness.’ ” Smith v. State, 394 So.2d 882, 884 (Miss. 1981) (quoting Hogan v. State, 46 Miss. 274, 279 (1872)). Viewing the evidence presented “in the light most favorable to the verdict,” this Court cannot conclude that the circuit court erred in affirming the jury’s verdict, thus “sanctioning] an unconscionable injustice.” Bush, 895 So.2d at 844. In short, the evidence does not “preponderat[e] heavily against the verdict.” Id. (quoting Amiker, 796 So.2d at 947). Accordingly, this Court finds that the circuit court did not abuse its discretion in denying Parramore’s motion for new trial.

CONCLUSION

¶ 15. We affirm the order of the Circuit Court of Harrison County denying Parra-more’s “Motion for Judgment Non Obstan-te Verdicto or for New Trial in the Alternative.”

¶ 16. COUNT I: CONVICTION OF STATUTORY RAPE AND SENTENCE OF FORTY (40) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF UNLAWFUL TOUCHING OF A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES TO RUN CONSECUTIVELY FOR A TOTAL OF FIFTY (50) YEARS TO SERVE DAY FOR DAY.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.

      . K.A.M. stated that she learned the word "raped” from "several TV shows and [her] mom.”

      . K.A.M. stated that by "private parts,” she meant Parramore’s "penis” and her "vagina.”

      . According to Parramore, K.A.M.’s mother learned of this relationship in March 2003.

      . This Court notes that Parramore concedes that physical evidence is not required to support a conviction either for statutory rape or the unlawful touching of a child for lustful purposes. See Walker v. State, 878 So.2d 913, 916 (Miss.2004) (citing Winston v. State, 754 So.2d 1154, 1156 (Miss.2000)) (physical evidence is not needed “to uphold a conviction of capital rape.”). Nonetheless, he asserts that the absence thereof "is further indication of the lack of credible evidence linking [him] to the crime for which he is convicted.”


source: Caselaw Access Project

author: LAMAR, Justice, KITCHENS, Justice,

license: Public Domain

text:
    Paul Clark VALMAIN v. STATE of Mississippi.
    No. 2007-KA-01062-SCT.
    Supreme Court of Mississippi.
    April 2, 2009.

      Edmund J. Phillips, Jr., attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   LAMAR, Justice,

for the Court.

¶ 1. Paul Clark Valmain was convicted in the Neshoba County Circuit Court on one count of sexual battery for sexual penetration of a five-year-old girl by inserting his fingers into her vagina, in violation of Mississippi Code Annotated Section 97-3-95(l)(d) (Rev.2006). Valmain was sentenced to serve a term of twenty-five years in the custody of the Mississippi Department of Corrections. Valmain appeals his conviction, raising four assignments of error:

(1) the trial court erred in overruling a hearsay objection to the testimony of a nurse;
(2) the trial court erred in allowing the five-year-old victim to testify;
(3) the trial court erred in allowing a seven-year-old witness to testify; and
(4) the verdict was against the overwhelming weight of the evidence.

Finding no merit in these assignments of error, this Court affirms.

FACTS

¶ 2. Christy Allen lived with her son and daughter at her mother’s home in Philadelphia. On October 14, 2006, while she went out for the evening, Allen asked Valmain to take care of her six-year-old son, D.F., and her five-year-old daughter, C.A. Allen took the children to Valmain’s trailer around 3:30 p.m., and the children were to stay the night at Valmain’s. Allen had left the children with Valmain on prior occasions, but never to stay the night.

¶ 3. The children played outside until dinnertime, at which time Valmain took the children to the casino for dinner and arcade games. As they were leaving the casino, C.A. told Valmain that she had wet herself. On the way back to his home, Valmain took the children to Wal-Mart, where he purchased pajamas and panties for C.A.

¶ 4. Valmain then took the children back to his trailer and took C.A. into the bathroom. He directed C.A. to undress herself and proceeded to bathe her with a bath cloth, while she stood in front of the sink. C.A. testified that, during the bathing, Val-main put his fingers through holes in the bath cloth and placed his fingers in her “private parts.” D.F. testified that he entered the bathroom and saw Valmain touching his naked sister “in her private parts” through the holes in the bath cloth. At trial, both C.A. and D.F. identified Valmain during their testimony.

¶ 5. Allen testified that after staying the night with Valmain, C.A. was whiny, kept urinating on herself, and did not want males to touch her. Allen went to Dusty Brown, a counselor at C.A.’s school, for advice. Brown interviewed C.A., and as a result, contacted Mary Judon of the Department of Human Services. C.A. was taken by her mother on October 17, 2006, to Rush Foundation Hospital in Meridian, where she was examined by Shalotta Sharp, a registered nurse and sexual-assault examiner. A final interview of C.A. was conducted on October 20, 2006, by Carla Horne, forensic interviewer and counselor at Wesley House in Meridian.

¶ 6. Nurse Sharp testified that her examination revealed two V-shaped clefts in the hymen, along with irritation and reddening of the labia minora, vestibule, and hymen. Nurse Sharp further testified that these conditions were caused by some type of trauma to the area, possibly penetration of the area by fingers, and were not likely caused by the child herself.

¶ 7. Valmain testified that he did give C.A. a bath with a washcloth, during which he wiped down her face, chest, arms, legs, and vaginal area. Valmain maintained that there were no holes in the washcloth and that he did not do anything other than what was reasonable to bathe C.A. Val-main testified that he had no idea why C.A. or anyone else would have concocted the story about the incident.

PROCEDURAL HISTORY

¶ 8. Paul Clark Valmain was indicted on one count of sexual battery. Following a trial and a jury verdict of guilty, Valmain was sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections. Valmain now appeals to this Court, raising four assignments of error, listed supra.

ANALYSIS

I. Whether the trial court erred in overruling Valmain’s hearsay objection to the testimony of Nurse Sharp.

¶ 9. “This Court reviews the trial court’s decision to admit or exclude evidence under an abuse of discretion standard of review.” Smith v. State, 986 So.2d 290, 295 (Miss.2008) (citations omitted). When reviewing a question of law, this Court employs a de novo standard of review. DeLoach v. State, 722 So.2d 512, 518 (Miss.1998) (citations omitted).

¶ 10. Shalotta Sharp, R.N., was called by the state to testify. Sharp, a nurse and sexual-assault examiner from Rush Foundation Hospital in Meridian, testified as an expert in the field of sexual-assault examination.

¶ 11. During direct examination, Sharp was asked to testify as to the medical history she had obtained with regard to C.A. Defense counsel objected, and the court overruled the objection and allowed Sharp to testify, on the basis that a medical history is an exception to the hearsay rule. Sharp then testified as follows:

A. The patient presented with the mother stating that she had been babysat by a neighbor, and upon coming home from this neighbor, complained of a genital pain. The mother questioned the child — I’m sorry. The school counselor, the child had revealed to the school counselor that she had been touched inappropriately, and the mother had stated that the child had genital pain and some behavior changes and that DHS was contacted and she was referred for an exam.
Q. Did the history also determine or advise you as to who this neighbor was?
A. Yes.
Q. And who was the neighbor?
A. Paul Valmain.

¶ 12. Valmain asserts on appeal that the trial court erred in allowing Allen’s out-of-court statements to Nurse Sharp as statements made for the purposes of medical diagnosis and treatment under Mississippi Rule of Evidence 808(4). Valmain contends that the medical-history exception to the hearsay rule does not extend to statements naming the perpetrator of a sexual battery who does not reside in the same household as the victim. Valmain argues, alternatively, that the medical-history exception does not apply to Allen’s statement regarding the victim’s history, because Allen was not the patient.

A. Whether statements made by one other than the patient may fall under the exception.

¶ 13. Valmain asserts that Mississippi Rule of Evidence 803(4) does not apply, because the declarant who gave the medical history was the mother of the victim, not the victim herself. Whether statements made by one other than the patient are covered by Rule 803(4) is an issue of first impression for this Court. Mississippi Rule of Evidence 803(4) provides an exception to the hearsay rule for:

[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness....

Miss. R. Evid. 803(4).

¶ 14. First, we note that nothing in the plain language of Rule 803(4) restricts its application to statements made by the patient to a treating physician. To the contrary, we find that Rule 803(4) “casts its net wider than the patient-physician relationship.” In re B.R., 270 Neb. 685, 708 N.W.2d 586, 591 (2005).

¶ 15. Our finding is supported by a majority of the state and federal courts which have addressed the question. The Ninth Circuit Court of Appeals has held that “in most circumstances, we believe that statements to a doctor by a parent of an injured child could easily qualify as a statement for the purpose of obtaining a proper medical diagnosis.” United States v. Yazzie, 59 F.3d 807, 813 (9th Cir.1995). The Supreme Court of Nebraska has stated that “[ujnder the federal and Nebraska rules of evidence, statements admissible under the medical diagnosis and treatment exception are not restricted to statements made by the patient and the statements need not be made to a physician.” In re B.R., 708 N.W.2d at 591 (citing Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d 319 (1994)). The court went on to hold that the declarant need not be the patient, finding that a foster mother’s statements made to a therapist, regarding the condition of her foster son, were not precluded from admissibility under Nebraska Revised Statute Section 27-803(3). Id. The Fifth Circuit Court of Appeals has noted that the rule “does not always require that the out-of-court statements refer to the condition of the declarant.” Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 272 (5th Cir.1991). The fact that information obtained via a medical history comes from the patient’s mother “does not affect the admissibility of the statements therein.” Sandoval v. State of Texas, 52 S.W.3d 851, 857 (Tex.App.2001).

¶ 16. The underlying principle of the Rule 803(4) hearsay exception is that statements made to physicians are highly likely to be truthful. The reliability of those statements “is assured by the likelihood that the patient believes that the effectiveness of the treatment depends on the accuracy of the information provided to the doctor, which may be termed a ‘selfish treatment motivation.’ ” Broun, et al., McCormick on Evidence 2 § 277, 284 (6th ed.2006).

¶ 17. It is not uncommon for parents to relay the medical histories of them children to physicians for diagnostic and treatment purposes. “In some circumstances where a parent is giving the information to assist in the diagnosis and treatment of the child, we think the reliability of the statements is very high.” Sandoval v. State of Texas, 52 S.W.3d at 857. Indeed, parents have the same “selfish treatment motivation” when providing information about them child to a physician for diagnosis or treatment as they would if providing information for their own diagnosis or treatment. Accordingly, we find that the trial court did not abuse its discretion in admitting the mother’s statements made to the nurse who was examining her child.

B. Whether a statement identifying the perpetrator may fall under the exception.

¶ 18. This Court has applied a two-part test for determining whether a statement indicating fault can qualify as an exception under Mississippi Rule of Evidence 803(4). Jones v. State, 606 So.2d 1051 (Miss.1992)! “First, the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment.” Id. at 1056 (citing U.S. v. Renville, 779 F.2d 430, 436 (8th Cir.1985)).

¶ 19. This Court has held that “the identity of the child’s sexual abuser was pertinent .to treatment, therefore reasonably relied upon by the treating physician, although the perpetrator was not a member of the child’s household.” Hennington v. State, 702 So.2d 403, 413 (Miss.1997) (citing Doe v. Doe, 644 So.2d 1199 (Miss. 1994)).

¶ 20. In Hennington, this Court took the opportunity to “set forth definite guidelines regarding the admission of hearsay testimony under Miss. R. Evid. 803(4) as to the identification of the perpetrator in a sexual abuse case.” Id. at 414. Noting that “the paramount concern in treatment of sexual abuse is to ensure that a child is not returned to the environment that fostered, allowed, or permitted the abuse,” this Court held:

[H] ear say testimony identifying the perpetrator is admissible under Miss. R. Evid. 803(4) regardless of whether he or she is a member of the child’s immediate household. The overriding question making the inquiry necessary is, “Will the perpetrator have access to the child in the future that would allow the sexual abuse to continue?” Because the inquiry is necessary for treatment, the answer is admissible under the rule.

Id. at 415.

¶ 21. Although Valmain was not an immediate family member living in the same home as C.A., the record shows that he saw the victim and her brother “pretty much on a daily basis.” The record reveals that Valmain visited the children’s home often, helping bathe and dress the children. Allen testified that Valmain was a friend and that she had left the children with him on other occasions. Valmain testified that he was a part of the kids’ lives. In Henningtmi, this Court noted that “although the perpetrator was not an immediate family member living in the same home as the child, the record shows that Hen-nington frequented the home of the child.” Id. at 415. The same certainly can be said for Valmain. Because he would have access to the child in the future that would allow the sexual abuse to continue, this Court finds that the identification of Val-main was admissible under Mississippi Rule of Evidence 803(4).

II. Whether the court erred in allowing the victim and her brother to testify-

¶ 22. Valmain challenges the court’s ruling allowing C.A. and her brother to testify, asserting that them testimony failed to establish that they understood the meaning of truthfulness.

¶ 23. Mississippi Rule of Evidence 601 governs the competency of witnesses, providing that every person is competent to be a witness unless incompetent or otherwise restricted by rule. The competency of a child witness is in the sound discretion of the trial judge. Mohr v. State, 584 So.2d 426, 431 (Miss.1991).

¶ 24. This Court generally has allowed children of tender years to testify, so long as they are deemed competent. Id. “Before allowing the child to testify, the judge should determine ‘that the child has the ability to perceive and remember events, to understand and answer questions intelligently and to comprehend and accept the importance of truthfulness.’” Id. at 431 (quoting House v. State, 445 So.2d 815, 827 (Miss.1984)).

A. The testimony of C.A.

¶ 25. Before allowing the victim to testify, the court held a competency hearing outside the presence of the jury. C.A. testified that she knew the difference between telling the truth and telling a story, and she knew that she was supposed to tell the truth. During the hearing, the prosecutor examined C.A. concerning the facts and circumstances surrounding the case. After the hearing, the trial court made the following finding regarding C.A.’s competency to testify:

The child is five years old and is an intelligent child for five years old. She understood the questions of Mr. Brooks and her responses were immediate and prompt. Then the child testified as to the conduct of this Defendant without being prompted or urged in any way. There was no suggestion made by the questions of Mr. Brooks, so I feel like that even though she is five years old, she has considerable reliability.

C.A.’s testimony regarding the sexual assault and the surrounding events was consistent in both the hearing and before the jury. Before the jury, C.A. reiterated that she knew what it meant to tell the truth, going so far as stating that if you don’t tell the truth, you “go to jail.”

¶ 26. Throughout her testimony, C.A. proved that she was intelligent, had the ability to understand and answer questions, and understood the importance of truthfulness. For these reasons, this Court finds that the trial court did not err in allowing C.A. to testify.

B. The testimony of D.F.

¶ 27. The court also held a competency hearing outside the presence of the jury before allowing D.F. to testify. During the hearing, D.F., seven years old, testified that he knew the difference between telling the truth and not telling the truth, stating that you can get in trouble for not telling the truth. D.F. testified that he would tell the truth. D.F. also was questioned about what he had observed in Val-main’s bathroom on the night in question. After the hearing, the trial court made the same finding with D.F. as with C.A., stating:

I am of the opinion that his testimony has the indicia of credibility. Considering his age, considering his intelligence and his demeanor, it appears that he is very understanding and is well mature and developed for a seven year old; that he understands the proceeding; he understands the penalty for falsehood and he is willing to testify as to the truth.

¶ 28. A study of D.F.’s testimony clearly shows that he was intelligent, that he had the ability to understand and answer questions, and that he understood the importance of truthfulness. Further, D.F.’s testimony was consistent in both the competency hearing and in his testimony before the jury. We find, therefore, that the trial court did not abuse its discretion in permitting D.F. to testify.

III. Whether the verdict was against the overwhelming weight of the evidence.

¶ 29. Finally, Valmain argues that the guilty verdict returned by the jury is against the overwhelming weight of the evidence, and therefore, the verdict should be overturned. Valmain asserts that the evidence presented could not have supported a finding that the prosecution had proven the elements of the offense charged beyond a reasonable doubt.

¶ 30. The standard of review applied to claims that a conviction is against the overwhelming weight of the evidence is as follows:

[This Court] must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction unconscionable injustice.

Todd v. State, 806 So.2d 1086, 1090 (Miss. 2001). “There is a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to this Court.” King v. State, 857 So.2d 702, 731 (Miss. 2003) (citing Branch v. State, 347 So.2d 957, 958 (Miss.1977)).

¶31. A review of the record reveals that evidence supporting the jury’s verdict was presented throughout the trial. The victim testified that Valmain put his fingers in her private parts. The testimony was corroborated by the victim’s brother, who witnessed the incident. The victim and her brother both identified Valmain in court. The victim’s testimony was further corroborated by Nurse Sharp, who described the injuries to the victim’s hymen as being consistent with injuries due to trauma and penetration. The victim’s mother testified as to the changes she observed in the victim’s physical and psychological condition after her overnight visit at Valmain’s trailer.

¶ 32. On the witness stand, Valmain denied penetrating C.A.’s vagina. This testimony, however, merely created an issue of fact for the jury to resolve. “The jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Mohr v. State, 584 So.2d 426, 431 (Miss.1991).

¶ 33. This Court finds that the circuit court did not err in denying Valmain’s motion for a new trial, as the verdict was not so contrary to the overwhelming weight of the evidence as to sanction unconscionable injustice.

CONCLUSION

¶ 34. Finding that Valmain’s arguments are without merit, we affirm the verdict and sentence of the Circuit Court of Nesh-oba County.

¶ 35. CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.

KITCHENS, Justice,

Dissenting:

¶36. Because I cannot embrace this case’s extension of our well-established hearsay exceptions, I respectfully dissent from today’s decision.

¶ 37. “The hearsay rule and its exceptions effect a delicate balance between the twin towering goals of the trial process: truth and fairness.” Hall v. State, 539 So.2d 1338, 1346 (Miss.1989). All exceptions to the general prohibition against hearsay, no matter their foundations, strain against the goal of fairness. The application of a hearsay exception in a criminal case, by its very nature, is a state-sanctioned abrogation of the right to confrontation guaranteed by the Sixth Amendment and Article 3, Section 26, of the Mississippi Constitution. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Therefore, whenever this Court condones hearsay, we ought to do so with the highest possible degree of care and thoughtfulness.

¶ 38. I do not suggest that today’s majority is proceeding otherwise. To the contrary, the majority reaches its conclusion only after a thoughtful analysis, supported by careful legal reasoning and persuasive authority from a diverse sample of jurisdictions.

¶ 39. Still, I cannot concur with its conclusion. By holding that Mississippi Rule of Evidence 803(4) permits a witness to testify to hearsay statements attributed to a child, delivered to the witness by a parent, the majority has added a new link to the hearsay chain that the courts of this state must accept and apply. If the reliability of hearsay evidence, as the eminent Chief Justice John Marshall wrote nearly two centuries ago, by its very nature suffers an “intrinsic weakness,” Queen v. Hepburn, 11 U.S. 290, 296, 3 L.Ed. 348, 7 Cranch 290 (1813), then the brand of secondhand hearsay permitted by today’s decision is afflicted by even less reliability than traditional hearsay. Indeed, given that none of our heretofore-recognized hearsay exceptions appears to contemplate secondhand hearsay, see Mississippi Rule of Evidence 803(1-25), today’s decision introduces to Mississippi’s jurisprudence the least reliable testimony permitted by the Rules of Evidence.

¶ 40. I understand that Rule 803(4) is written in broad language that does not explicitly limit its scope to statements uttered by a medical patient. But Rule 803(4)’s attention to “medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof’ clearly implies that this hearsay exception sets its limits at statements imparted by the person experiencing the described symptoms, pain, or sensations. Therefore, I would hold that the learned trial judge committed reversible error when he permitted Nurse Sharp to testify to statements supposedly uttered by the child but conveyed to the nurse by the mother.

¶ 41. Moreover, the record in this case makes clear that the majority need not stretch Rule 803(4) as far as it does. The Rules of Evidence, as they were generally understood before today’s decision, forbade neither the nurse (through the medical-diagnosis exception) nor the mother (through Rule 803(25)’s tender-years exception) from testifying to statements made by the child. Furthermore, they did not forbid the nurse from testifying to the observations she made during her examination, because such evidence clearly is not a statement and therefore is not hearsay. See Miss. R. Evid. 801. Accordingly, the State’s case would not have suffered from the absence of the testimony in question.

¶ 42. Instead, today’s decision visits suffering upon the state and federal right to confrontation. Therefore, I dissent.

CHANDLER, J., JOINS THIS OPINION.

      . The trial court noted "the witness has pointed to a spot between her legs where it's connected to her upper torso, which would be the area of the vagina.”

      . The trial court noted "the witness has pointed to a spot between his legs which would be the area of the vagina of a female.”

      . Defense counsel's specific objection was "Your Honor, I object to what the mother told her.”

      . This is so despite the U.S. Supreme Court’s holding in Crawford, 541 U.S. 36, 124 S.Ct. 1354, because the child testified at trial. Had she not done so, the admission of this evidence would have violated the defendant’s right to confront his accuser, as Justice Sca-lia’s majority opinion in Crawford makes clear.


author: BARNES, J.,

text:
    Skilah ANDERSON, Appellant v. STATE of Mississippi, Appellee Corey Bryant, Appellant v. State of Mississippi, Appellee Garner Lee Brister, Jr., a/k/a Duke, Appellant v. State of Mississippi, Appellee.
    Nos. 2004-KA-01852-COA, 2004-KA-00527-COA, 2004-KA-01858-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2007.
    Rehearing Denied Dec. 9, 2008.
    Certiorari Denied April 9, 2009.

      Lisa Mishune Ross, Jackson, Thomas W. Powell, Bernard Jones, Bolton, Imhotep Alkebu-Lan, attorneys for appellants.

      Office of the Attorney General by Jacob Ray, Deshun Terrell Martin, attorneys for Appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. This case comes on appeal from the Circuit Court of Hinds County of the capital mur.der convictions and sentences of life imprisonment without parole of Ski-lah Anderson, Corey Bryant and Garner Brister, Jr. Anderson and Bryant were also convicted of armed robbery and sentenced to life imprisonment without parole to run concurrently with the other life sentence. From these convictions, Anderson, Bryant, and Brister, now appeal. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On June 25, 2002, Skilah Anderson (age seventeen), Corey Bryant (age nineteen), and Garner Brister, Jr. (age sixteen) traveled in Brister’s car to Gun Works, Inc. (Gun Works), which was located on Raymond Road in Jackson, Mississippi. Once there, they circled the store a few times and then parked behind the store. Bryant entered Gun Works, followed quickly by Anderson. Upon entering, Bryant confronted Paul Robinson, an employee, and shot him. While Bryant and Anderson were gathering guns and ammunition, Charles Withers, a customer, entered the store to have a gun repaired. Bryant and Anderson pointed their guns at Withers, made him get down on the floor, and stole his wallet and cell phone. Bryant and Anderson loaded Brister’s car with the stolen merchandise, which was in a pillowcase and some boxes, and went to Brister’s house. Withers, in the meantime, went to find Robinson, whom he found on the floor unresponsive. Withers contacted the police who quickly arrived on the scene. Robinson was transported to the hospital where he was pronounced dead.

¶ 3. Later that day, Officer Gary Moore received a tip from an informant that some stolen guns were being sold in one of the parks in the downtown area of Jackson. Upon arrival, he briefly questioned Anderson, who was at the scene, but let him go. The next day, Officer Moore went to Anderson’s home to question him regarding the Gun Works incident. Again, Officer Moore left telling Anderson he would likely be back for more questioning. Officer Moore later returned to Anderson’s home and asked to take him to the police station for further questioning. After Anderson was in the patrol car, he stated to Officer Moore that he knew he was in trouble but he was not the shooter. At this point, Officer Moore testified that he contacted his supervisor, gave Anderson his Miranda rights and transported Anderson to the precinct. At the station, Anderson gave a statement to detectives regarding his participation in the Gun Works robbery. It was during this line of questioning that the police learned of Bryant’s involvement and the location of some of the stolen merchandise. Bryant was then brought to the police precinct for questioning. Bryant gave a statement in which he confessed to his participation in the Gun Works robbery. The police, based on the information they received, retrieved a stolen weapon from the home of LaShaun Jones. Jones told the police, and later testified at trial, that he had obtained this weapon from Brister. The police brought Brister in the next day for questioning. Brister gave a statement regarding his involvement in the robbery which stated that he only drove the getaway car and never entered the store.

¶ 4. Anderson, Bryant, and Brister were each indicted for violations of Mississippi Code Annotated sections 97-3-19(2)(e) (Rev.2000) (capital murder) and 97-3-79 (Rev.2000) (armed robbery). Motions for severance were filed shortly before trial which the trial judge denied. Bryant also filed a motion to suppress the confessions by all three defendants. A motion to reconsider severance was made by Bryant on July 15, 2004. The motion to reconsider severance and the motion to suppress were both denied during the pre-trial hearing. On July 19, 2004, Bryant, Anderson, and Brister were tried jointly on one count each of capital murder of Paul Robinson and one count each of armed robbery of Charles Withers. At trial, the jury found Anderson and Bryant guilty of capital murder and armed robbery. Brister was also found guilty of capital murder, but not guilty of armed robbery. The trial judge sentenced Anderson and Bryant to life without the possibility of parole for both counts, with both sentences to run concurrently. Brister was sentenced to life without the possibility of parole. Anderson, Bryant and Brister, now appeal from these convictions.

I. WHETHER THE TRIAL COURT ERRED IN ITS REFUSAL TO SEVER THE TRIAL.

¶ 5. As Anderson, Bryant, and Bris-ter all assert in their briefs that the trial court’s denial of the motions to sever trial was error, we will address the denial as a single issue applicable to all three appellants.

¶ 6. A trial court’s denial of a motion to sever a trial will not be overturned absent abuse of discretion. King v. State, 857 So.2d 702, 716(¶ 19) (Miss.2003). Rule 9.03 of the Uniform Circuit and County Court Rules states, “[t]he granting or refusing of severance of defendants in cases not involving the death penalty shall be in the discretion of the trial judge.” The Mississippi Supreme Court has stated that “[w]hen the evidence at trial goes equally to the guilt of both defendants, and not to one more than the other, it is not error to try the defendants jointly.” King, 857 So.2d at 716 (citing Johnson v. State, 512 So.2d 1246, 1254 (Miss.1987)).

¶ 7. In a joint trial where the accused moves for severance because the prosecution intends to introduce a confession given by a co-defendant, implicating the accused, the trial judge should require the State to elect among a joint trial in which the statement is excluded, a joint trial in which the statement is admitted, but the portion implicating the accused is deleted, or agree to a severance. Walker v. State, 430 So.2d 418, 421 (Miss.1983). In the case before us, the trial court redacted the confessions by all three defendants to eliminate any reference to their co-defendants by name. At trial, all three defendants objected to the introduction of the redacted statements of their co-defendants by a motion to suppress evidence, citing the issues raised in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Bruton states that there are instances where redaction and limiting instructions are not an “adequate substitute for petitioner’s constitutional right of cross-examination.” Id. at 137, 88 S.Ct. 1620. However, under Gray v. Maryland, 523 U.S. 185, 191, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), the United States Supreme Court outlined when the admission of a co-defendant’s confession will not violate the Confrontation Clause. The Confrontation Clause of the Sixth Amendment of the United States Constitution “is not violated by the admission of a nontesti-fying co-defendant’s confession” at a joint criminal trial, even though the defendant is linked to the confession by other evidence properly admitted against the defendant at the joint trial, in two circumstances: (1) when the co-defendant’s “confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence”; and (2) where the jury is given a proper limiting instruction not to use the co-defendant’s confession against the defendant. Id.

¶8. In the present case, while the defendants argued at the severance hearing that redactions would be insufficient, none of the defendants objected to any specific errors in the redactions. However, Brister argues in his brief to this Court that the redactions were insufficient due to the fact that Bryant’s statement used the term “we” which was suggestive of the other’s involvement. Not all confessions should be excluded, “only those confessions which are incriminating to the defendant on their face.” Bynum v. State, 929 So.2d 324, 332(¶ 21) (Miss.Ct.App. 2005). Using the word “we” did not facially incriminate any of the other defendants. Further, had Brister presented his objection to the specific redactions at trial, it could have been cured. We find that he waived any challenge to the specific manner in which the redactions were made.

¶ 9. Bryant contends that failure to sever was error in that Brister’s and Anderson’s statements exculpate them and implicate Bryant. Our review of the statements of each defendant reveals that each admitted to a role in the events which resulted in the death of Robinson. Bryant admitted to having fired the gun and made no allegation that either of the other defendants fired the shot which killed Robinson. While the statements of Brister and Anderson do reflect more minor roles in the shooting, they do not exculpate the defendants, nor do they contradict the statement made by Bryant. Accordingly we find his argument without merit.

¶ 10. We conclude that the trial judge did not abuse her discretion in denying the motions to sever the trial and allowing the introduction of the redacted statements of the defendants. However, under Gray, we must also address a second element in order to determine whether the defendants’ rights under the Confrontation Clause were violated: adequacy of the limiting instruction.

II. WHETHER THE TRIAL COURT GAYE PROPER LIMITING INSTRUCTIONS TO JURY REGARDING CONFESSIONS BY DEFENDANTS.

¶ 11. The standard of review for the grant or denial of jury instructions is that jury instructions are to be read together and taken as a whole with no one instruction taken out of context. Chandler v. State, 946 So.2d 355, 360(¶21) (Miss. 2006). A defendant is entitled to have jury instructions given which present his theory of the case; however, the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Id. Mississippi Rule of Evidence 105, which addresses limited admissibility of evidence, offers limiting instructions as a cure in some instances where testimony is introduced at trial which may affect one party but not the other. Buggs v. State, 754 So.2d 569, 575(¶27) (Miss.Ct.App. 2000). In the case before us, the trial court redacted all mention of the co-defendants’ names in each of the defendants’ confessions and gave a limiting instruction to the jury. However, the limiting instruction in this case did not properly meet the requirements set forth by the United States Supreme Court in Gray. The limiting instruction in this case, Jury Instruction No. 7, read:

The Court has allowed certain written statements of the defendants to be placed in evidence during this trial. Certain material was inappropriate for the jury’s consideration and had to be redacted (deleted) from some or all of these documents.
You are instructed that you may not draw any inferences from the redacted material and that you shall not speculate or guess as to the contents thereof. You should wholly ignore such material, as it has no evidentiary value in this trial.

We find the limiting instruction given here inadequate in that it did not instruct the jury only to consider the statement against the defendant who made it. See Gray, 532 U.S. at 191, 121 S.Ct. 1446. Our review of the record reflects that none of the defendants made any objections to the limiting instruction given to the jury. In fact, the limiting instruction given at trial had been subject to modifications by counsel for Bryant. “Failure to make a contemporaneous objection waives the issue on appeal.” Swington v. State, 742 So.2d 1106, 1112(1114) (Miss.1999). Therefore, the issue of the adequacy of the limiting instruction is procedurally barred from our review.

¶ 12. Although no objection was made at trial to the limiting instruction given to the jury, this issue evolved during appeal based upon the motion to sever. Accordingly, we requested supplemental briefing on this issue and now fully consider the parties’ arguments under the plain error doctrine. Such review “is necessary when a party’s fundamental rights are affected, and the error results in a manifest miscarriage of justice.” McGee v. State, 953 So.2d 211, 215(¶ 8) (Miss.2007) (citation omitted). In order to determine if there is plain error, we must determine if the trial court “deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial.” Id. (citations omitted).

¶ 13. In this case, we find that failure to instruct the jury not to consider the statements of the other co-defendants constituted a deviation from the clear legal rule set forth in Gmy. However, upon independent review of the record, we find no prejudice to the outcome of the trial, much less a “manifest miscarriage of justice.” We do not find that the jury could have only convicted any of the defendants based upon the statements of his co-defendants. Taken separately, the confession of each defendant is sufficient to evidence his participation in the capital murder of Robinson. According to Mississippi Code Annotated section 97-1-3, “[o]ne who aids, abets and assists in the commission of a crime is indictable and subject to the same punishment as a principal.” Anderson v. State, 397 So.2d 81, 84 (Miss.1981) (citation omitted).

¶ 14. The issue which most closely identifies a possible misuse of the statements was raised by Anderson, who contended that there was no evidence that Robinson was placed in fear during the robbery. We find that only one confession, that of Bryant, presented evidence that Robinson may have been placed in fear for his life during the commission of the robbery, which formed the underlying offense for the capital murder charge. Mississippi Code Annotated section 97-3-73 (Rev.2006) states, “[e]very person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.” (Emphasis added). In dealing with the element of fear “it must be the fear under duress of which the owner parts with possession.” Glenn v. State, 439 So.2d 678, 680 (Miss. 1983) (quoting Crocker v. State, 272 So.2d 664, 665 (Miss.1973)). Other than Bryant’s confession, no other evidence, either forensic or testimonial, was given to show any indication that Robinson was put in fear as the robbery was taking place. According to police reports, Robinson was shot in the back, and Withers entered after Robinson had already been shot. Anderson and Brister both stated that they were not present during the shooting and never saw Robinson. However, we must also consider the alternative element: the force or violence committed upon Robinson in the course of the robbery. To constitute robbery, it is not necessary that the person robbed must have been first in fear of his person or property; “[i]f the goods be taken either by violence, or by putting the owner in fear, it is sufficient to render the felonious taking a robbery.” McDaniel v. State, (8 S. & M.) 16 Miss. 401, 418 (1847). Separate from the individual confessions, evidence at trial showed that Robinson was shot during the robbery of Gun Works which satisfies the element of force against the victim. We additionally note that whether Robinson was conscious at the time that the property was taken is not relevant. There is nothing in Mississippi Code Annotated section 97-3-73 that suggests the victim must be aware that his or her personal property is being taken, and a victim’s lack of awareness due to a perpetrator’s actions does not take him outside of the robbery statute. Wheeler v. State, 826 So.2d 731, 735(¶ 9) (Miss.2002).

¶ 15. Although we find the limiting instruction to the jury was not sufficient under Gray, we find no prejudice or manifest injustice resulted as to any of the defendants. Each defendant gave sufficient evidence of his individual participation in the robbery of Gun Works in his separate statements to support a capital murder charge. Bryant admitted to firing four shots once he went into the store. Anderson, in his confession, stated that he went into the store and took several weapons from the store in a cardboard box. He also noted that he heard gun shots prior to entering the store. Brister’s confession showed that he drove two others to Gun Works and that when he heard the gun shots, he “kinda knew what they were doing.” He also admitted that he had heard others discussing robbing Gun Works prior to the robbery and that he was aware he was behind Gun Works when he parked. Aside from the defendant’s individual confessions, there was also other evidence presented which showed that Robinson was subject to a violent act during the robbery. Therefore, we find that the submission of the limiting instruction, although inadequate, resulted in no prejudicial error.

¶ 16. We now review Anderson’s, Bryant’s, and Brister’s individual assertions of error, which have not been previously addressed.

ANDERSON

III. WHETHER COMMENTS MADE BY COUNSEL FOR BRISTER WERE PREJUDICIAL AND WARRANTED A MISTRIAL.

¶ 17. During the closing arguments before the jury, counsel for Brister said, “[a]nd I think you would agree with me that your verdicts on Corey Bryant and Skilah Anderson are pretty easy. You know that they are guilty.” Anderson’s counsel objected to the statement, and the trial court sustained the objection. However, when counsel for Anderson moved for a mistrial, the trial judge denied the motion, stating that she had already instructed the jury to disregard the attorney’s statements. “The judge is provided considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared,” and if no “serious and irreparable damage” has resulted, the trial judge should admonish the jury at that time to “disregard the impropriety,” which the judge did in this instance. See Carpenter v. State, 910 So.2d 528, 534(¶ 23) (Miss.2005) (citing Roundtree v. State, 568 So.2d 1173, 1177 (Miss. 1990)). Therefore, we find no merit in Anderson’s claim and affirm the trial court’s refusal to grant a mistrial based on statements made during closing arguments.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 18. Anderson claims that he was prejudiced by trial counsel’s failure to request an instruction on simple murder and the lesser-included offense of robbery, which is grand larceny. To succeed on a claim of ineffectiveness of counsel, it must be shown that “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Ross v. State, 954 So.2d 968, 1003(¶77) (Miss.2007) (citation omitted). The time-honored test for claims of ineffective assistance of counsel was set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a defendant must show the counsel’s performance was deficient. Id. at 694, 104 S.Ct. 2052. To establish deficient performance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Ross, 954 So.2d at 1003(¶ 78). Second, “a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the trial would have been different.” Id.

¶ 19. Anderson’s argument regarding ineffective assistance of counsel parallels his contention regarding the lack of evidence that Robinson had been placed in fear during the course of the robbery. As previously stated, if a taking of property is effectuated by violence or force upon the victim, such action is sufficient to constitute a robbery. McDaniel, 16 Miss. (8 S. & M.) at 401. Accordingly, as Anderson was an admitted participant in the robbery of Gun Works, we find there was sufficient evidence presented to support a conviction of capital murder against Anderson. Therefore, we cannot find deficient performance on the part of Anderson’s counsel.

V. WHETHER THE SENTENCE IMPOSED BY THE TRIAL COURT CONSTITUTED CRUEL AND UNUSUAL PUNISHMENT.

¶ 20. Anderson asserts that his sentence of life imprisonment without parole was so harsh that it constituted cruel and unusual punishment. If a sentence is “grossly disproportionate” to the crime committed, it is “subject to attack on the grounds that it violates the Eighth Amendment prohibition of cruel and unusual punishment.” Tate v. State, 912 So.2d 919, 933(¶ 49) (Miss.2005) (citation omitted). Generally, if a sentence does not exceed the maximum term allowed by statute, we will not disturb it upon appeal. Stromas v. State, 618 So.2d 116, 122 (Miss. 1993).

Though no sentence is “per se” constitutional, this Court, in the context of our habitual statutes, as well as in sentencing other offenders, has recognized the broad authority of the legislature and trial court in this area and has repeatedly held that where a sentence is within prescribed statutory limits, it will generally be upheld and not regarded as cruel and unusual.

Barnwell v. State, 567 So.2d 215, 222 (Miss.1990) (citations omitted). Anderson’s conviction of capital murder carried with it the sentence of either life imprisonment, life imprisonment without parole, or death. The State did not request the death penalty against any of the three defendants.

Miss.Code Ann. § 99-19-101(1) states in pertinent part that “upon conviction or adjudication of guilty of a defendant of capital murder or other capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death, life imprisonment without eligibility for parole, or life imprisonment.” Miss.Code Ann. § 47 — Y—3(l)(f) states “no person shall be eligible for parole who is charged, tried, convicted and sentenced to life imprisonment under the provisions of Section 99-19-101.” The reading of these statutes together indicate that a defendant on trial for capital murder may only be sentenced to death or life imprisonment without the eligibility of parole. According to § 47 — 7—3(l)(f), there is no longer the possibility of life imprisonment.

Davis v. State, 914 So.2d 200, 205(¶ 21) (Miss.Ct.App.2005) (citing Flowers v. State, 842 So.2d 531, 556-57(¶77) (Miss. 2003)). Therefore, the only possible sentence for conviction of capital murder committed after July 1, 1994, other than the death penalty, would be life without parole, and the trial judge may impose this sentence without formally returning the matter to the jury for sentencing. Id. at 206(¶ 23). We find that Anderson’s sentence under his conviction of capital murder not only fell within the prescribed statutory limits but was the only sentence which could have been imposed; accordingly it does not constitute cruel and unusual punishment.

BRISTER

VI. WHETHER THE TRIAL COURT ERRED IN ITS FAILURE TO GIVE A THEORY OF DEFENSE INSTRUCTION WHICH UNDULY PREJUDICED BRISTER.

¶ 21. Brister asserts that it was error to deny his requested jury instructions D(Br)-12 and 12(a) as a defendant is entitled to have instructions on his theory of the case presented to the jury if there is foundation in the evidence. Graves v. State, 761 So.2d 950, 956(¶ 18) (Miss.Ct.App.2000). “Jury instructions are to be read together and taken as a whole with no one instruction taken out of context.” Heidel v. State, 587 So.2d 835, 842 (Miss.1991) (citations omitted). A trial court may “refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id*

¶ 22. Both jury instructions referred to by Brister set forth a theory of accessory-after-the-fact. “To warrant the lesser-included offense instruction, a defendant must point to some evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of the lesser-included offense.” Armstrong v. State, 828 So.2d 239, 242(¶ 11) (Miss.Ct.App.2002) (citation omitted). While the trial court denied Brister’s admission of these specific jury instructions, it noted that instructions submitted to the jury set forth the test that if one of the elements of the capital murder charge was not met, the jury should find Brister not guilty. In addition, there was no evidence present to support such an instruction. Someone present at the commission of a criminal offense who aids, counsels, or encourages another in the commission of that offense is considered an “aider and abettor” and is equally guilty with the principal offender. Hoops v. State, 681 So.2d 521, 533 (Miss.1996). “The primary distinction between the accessory-before-the-fact and an aider and abettor is the actual or constructive presence of the party. If a person was actually or constructively present at the offense, due to his participation he is an aider and abettor.” Id. (Citation omitted.) “One cannot be both a principal in the crime and an accessory after the fact” Id. at 534 (citations omitted). As already noted, Brister admitted in his statement that he drove two other men to Gun Works and, while waiting for them after they went inside, he heard gun shots. He also admitted to knowledge that the others had been planning the robbery prior to that day.

¶ 23. Brister also submits that the trial court should have given a circumstantial evidence instruction on his behalf. “When all of the evidence tending to prove the guilt of a defendant is circumstantial, the trial court must grant a jury instruction that every reasonable hypothesis other than guilt must be excluded in order to convict.” Ross, 954 So.2d at 1009 (¶ 100) (citations omitted). However, if there is direct evidence before the jury, “then a circumstantial evidence instruction is inappropriate.” Id. (citing Ladner v. State, 584 So.2d 743, 750 (Miss.1991)). Direct evidence can include confessions by defendants, including admissions to a person other than a law enforcement officer. Id. Brister voluntarily gave a statement admitting his participation in the Gun Works robbery to law enforcement.

¶ 24. Therefore, we find the trial court did not err by denying Brister’s jury instructions as there was no evidence to support such an instruction. We also find no error in denying a circumstantial evidence instruction as there was direct evidence presented linking Brister to the crime.

BRYANT

VII. WHETHER THE TRIAL COMMITTED REVERSIBLE ERROR WHEN IT PERMITTED A WITNESS TO IDENTIFY BRYANT AT TRIAL.

¶ 25. Bryant argues that Wither’s identification of him at trial was “highly prejudicial” as Withers was unable to identify Bryant during the confrontation two years prior to trial, and this constituted reversible error. “A trial court’s ruling on the admissibility of a witness identification is reviewed for clear error.” Bell v. State, 847 So.2d 880, 885(¶ 14) (Miss.Ct.App.2002) (citing Neil v. Biggers, 409 U.S. 188, 200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)).

¶ 26. However, we agree with the State in its assertion that no such identification actually took place. Withers was asked if he recognized anyone in the courtroom in connection with the incident. Although he did say that he thought maybe Bryant was a participant, he went on to admit that he could not “identify them definitely to be honest.” “[T]he credibility of witnesses is not for the reviewing court, but only for the jury.” Sturdivant v. State, 745 So.2d 240, 248(¶35) (Miss.1999). In this case, Bryant’s conviction was not a result of Wither’s statement that he thought Bryant may have been one of the robbers, but based on Bryant’s own admission of guilt. Therefore, we find that the trial judge did not commit reversible error by letting the witness attempt to give an in-court identification of Bryant.

CONCLUSION

¶ 27. Although we find the trial court did not err in its denial of the motions to sever the trial, we do find that the judge failed to give appropriate limiting instructions to the jury regarding the defendants’ individual confessions. However, as this error did not result in a “manifest miscarriage of justice” to Anderson, Bryant or Brister, we affirm the convictions of Anderson, Bryant and Brister of the capital murder of Paul Robinson and Bryant’s and Anderson’s convictions of the armed robbery of Charles Withers.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF THE CONVICTIONS OF CAPITAL MURDER OF DEFENDANTS SKILAH ANDERSON, COREY BRYANT AND GARNER BRISTER, JR. AND SENTENCES OF LIFE IMPRISONMENT WITHOUT PAROLE; AND THE ARMED ROBBERY CONVICTIONS OF ANDERSON AND BRYANT AND SENTENCES OF LIFE IMPRISONMENT WITHOUT PAROLE TO RUN CONCURRENTLY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . The State never sought the death penalty against die tiiree defendants in this case.

      . Bryant filed his motion to sever on June 25, 2004. Brister filed his motion for severance on July 2, 2004. We have nothing on record to note when or if Anderson filed a motion to sever. However, the court denied all motions to sever on July 13, 2004, basing its ruling on the fact the motions were not filed in a timely manner and there was no testimony exculpating any individual in the confessions.

      . In Bryant's statement, he said that when they went into the store “the white man (Robinson) said 'oh s**t’ and he went for a gun.”-

      . When a defendant has been found guilty by a jury, our appellate authority is limited, and the verdict should not be overturned if there is evidence in the record from which the jury could have found or reasonably inferred each element of the offense. Wade v. State, 748 So.2d 771, 774(¶ 8) (Miss.1999). Anderson’s contention that he was entitled to a judgment notwithstanding the verdict based upon this issue is thus without merit. Similarly, his argument that Withers's inability to identify him at trial as one of the robbers entitles him to JNOV is also rejected. Anderson's confession identifies him as one of the robbers despite Withers’s inability to do so.