author: KITCHENS, Justice,

text:
    Thurman KIRKWOOD a/k/a Mickey v. STATE of Mississippi.
    No. 2008-CT-01349-SCT.
    Supreme Court of Mississippi.
    Jan. 20, 2011.

      Allan D. Shackelford, Clarksdale, Office of Indigent Appeals by Justin Taylor Cook, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
   ON WRIT OF CERTIORARI

KITCHENS, Justice,

for the Court:

¶ 1. Thurman Kirkwood was found guilty by a Coahoma County jury of burglary of a dwelling, grand larceny, felony fleeing, and possession of a firearm by a convicted felon. The trial judge adjudicated Kirk-wood an habitual offender as defined by Mississippi Code Section 99-19-81 (Rev. 2007) and sentenced him to the maximum imprisonment on each charge. The burglary, felony fleeing, and possession sentences were ordered to run consecutively to each other, and the grand larceny sentence was ordered to run concurrently with the other three sentences. On appeal, the Court of Appeals affirmed Kirk-wood’s convictions and sentences. Kirkwood v. State, 53 So.3d 7 (Miss.Ct.App. 2010). We granted Kirkwood’s petition for writ of certiorari to address whether the trial court erred by refusing a circumstantial evidence instruction on the house burglary and grand larceny charges. Because all the evidence of guilt of these two crimes was circumstantial, Kirkwood was entitled to a circumstantial evidence instruction; therefore, we reverse the convictions of burglary of a dwelling and grand larceny and remand the case for further proceedings in the trial court.

Facts

¶ 2. On October 11, 2007, Roy Banks of Clarksdale, Mississippi, awoke to find that his 1991 blue and grey GMC Safari van was missing. Banks’s wife called the Clarksdale Police Department to report that the van had been stolen.

¶ 3. That morning, Thurman Kirkwood appeared at W.C. Smith’s trailer in Friar’s Point, Mississippi. At trial, Smith testified that Kirkwood was driving a van, and identified Banks’s van as the one Kirkwood had been driving. According to Smith, Kirkwood was looking for work. Smith told Kirkwood that he was going to Memphis, but would be back later that day, and gave Kirkwood ten dollars. Smith testified that while he was in Memphis, he received a telephone call from Kirkwood inquiring about Smith’s whereabouts.

¶ 4. When Smith returned to his trailer that evening, he found that an outer door was broken, and that four rifles, a briefcase, and two radio scanners were missing. Smith immediately reported the burglary of his home to local police.

¶ 5. Meanwhile, Officer Steven Poer of the Clarksdale Police Department spotted Kirkwood driving the stolen van. Poer testified that he could see the driver’s face as they passed each other on the road. After verifying that the van was the same vehicle that had been reported missing by Banks’s wife, Poer attempted to stop the van by turning on his blue lights and siren. When the driver failed to stop, a high-speed chase began. Eventually, the van came to a stop, and Poer testified that he saw Kirkwood exit the stolen vehicle and run. Inside the van were the four rifles, the briefcase, and one of the radio scanners that Smith had reported missing from his trailer. Shortly thereafter, Kirkwood was apprehended in a nearby field.

¶ 6. Poer testified that one other person was in the vehicle. The passenger was a deaf and mute woman, who was unable to communicate with law enforcement officials. She was taken to the police station and eventually was released. At the time of trial, she could not be found.

¶ 7. Kirkwood testified in his own defense, claiming that he had nothing to do with stealing the van or burglarizing Smith’s trailer. According to his version of events, he had driven the van to Smith’s trailer to purchase crack cocaine. He was accompanied by three other individuals: Earnest Woods, Larry Mixon, and a woman named Blair. According to Kirkwood, his companions had been in possession of the stolen van for about a week. After he and his friends used the drugs, he claimed, they returned to Smith’s trailer to buy more. When Smith was not there, Kirk-wood called Smith to find out when he would return. Kirkwood testified that Woods and Mixon became impatient, and they decided to break into Smith’s trailer to steal the drugs. Kirkwood contended that he had warned them not to go into the trailer, and when they proceeded against his advice, Kirkwood walked away. He testified that his friends picked him up later “down the street.” According to Kirkwood, he saw a blanket covering some unidentified items in the van, but he did not know what was under the blanket. The foursome then went to Woods’s house to smoke more crack cocaine.

¶ 8. At some point, Mixon left the group, and Kirkwood testified that he, Woods, and Blair were riding around in the van when Officer Poer attempted to stop them. Kirkwood said that Woods was driving the van but managed to escape, on foot, from the police officers. According to Kirkwood, he had run because he was paranoid and high and wanted to get rid of the drugs and the crack pipe he had in his possession.

¶ 9. During the jury instruction conference, Kirkwood requested a circumstantial evidence instruction regarding the charges of grand larceny, burglary of a dwelling, and possession of a firearm by a convicted felon. The trial judge denied the instruction, reasoning that there was direct evidence to prove all the charges. Kirkwood raised the denial of a circumstantial evidence instruction, as it related to the burglary and grand larceny charges, as a point of error in his appeal. The Court of Appeals held that the trial judge did not err in denying the instruction, as there was direct proof of the crimes.

Discussion

¶ 10. “Where all the evidence tending to prove the guilt of the defendant is circumstantial, the trial court must grant a jury instruction that every reasonable hypothesis other than that of guilt must be excluded in order to convict.” Manning v. State, 735 So.2d 323, 338 (Miss.1999) (quoting Givens v. State, 618 So.2d 1313, 1318 (Miss.1993)). “Circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such a fact does exist.” Alexander v. State, 749 So.2d 1031, 1036 (Miss.1999) (quoting Keys v. State, 478 So.2d 266, 268 (Miss.1985)). While evidence does not always fall neatly into one category, examples of direct evidence include an admission or confession by the defendant to “a significant element of the offense,” or eyewitness testimony “to the gravamen of the offense charged.” Mack v. State, 481 So.2d 793, 795 (Miss.1985) (citations omitted).

¶ 11. The Court of Appeals found that there was direct evidence of burglary of a dwelling and grand larceny based on Kirk-wood’s testimony, Poer’s testimony that he had seen Kirkwood driving the van, and the evidence that Smith’s stolen property was found inside the van. Kirkwood, 53 So.3d at 21 (¶ 42). We disagree that any of this constitutes direct evidence of Kirk-wood’s guilt of the house burglary and grand larceny charges. Nothing in Kirk-wood’s testimony amounted to an admission of guilt to an essential element of either crime, and the State did not produce any eyewitness to either of those crimes. Mack v. State, 481 So.2d 793, 795 (Miss.1985).

¶ 12. The elements of burglary of a dwelling are “(1) the unlawful breaking and entering[of a dwelling]; and (2) the intent to commit some crime when entry is attained.” Parker v. State, 962 So.2d 25, 27 (Miss.2007) (quoting Edwards v. State, 800 So.2d 454, 463-64 (Miss.2001)). See Miss.Code Ann. § 97-17-23 (Rev.2006). According to Kirkwood, he did not participate in the burglary in any way, and he tried to convince his friends not to break into Smith’s trailer. Although most of the stolen items from the trailer were found in the van that Kirkwood and at least one other person occupied, there simply is no direct evidence that he committed or took part in the breaking and entering or that he intended to steal anything after breaking into and entering Smith’s trailer.

¶ 13. The crime of grand larceny is “taking and carrying away, feloniously, the personal property of another, of the value of Five Hundred Dollars ($500.00) or more.” Miss.Code Ann. § 97-17-41(1) (Rev.2006). As with the burglary charge, there was no direct evidence that Kirk-wood stole Banks’s van. That Officer Poer saw Kirkwood driving the van does not constitute direct evidence that Kirkwood feloniously took or “carried] away” the van. Miss.Code Ann. § 97-17-41(1). Without any direct evidence of either crime, Kirkwood was entitled to a circumstantial evidence instruction, and the trial court erred by refusing to instruct the jury properly.

Conclusion

¶ 14. We affirm the judgment and sentences rendered by the Coahoma County Circuit Court in Count II, felony fleeing, and Count III, possession of a firearm by a convicted felon. Because we find that there was no direct evidence that Kirk-wood committed the crimes of burglary of a dwelling or grand larceny, we reverse the judgments of the Court of Appeals and the circuit court as to Count I, burglary of a dwelling, and Count IV, grand larceny. Kirkwood’s convictions on Counts I and IV are hereby reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

¶ 15. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. COUNT I: CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, REVERSED AND REMANDED. COUNT II: CONVICTION OF FELONY FLEEING AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES IN COUNTS II AND III SHALL NOT BE REDUCED OR SUSPENDED NOR SHALL APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION DURING THE TERM OF SAID SENTENCES. SENTENCES IN COUNTS II AND III SHALL RUN CONSECUTIVELY. COUNT IV: CONVICTION OF GRAND LARCENY AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, REVERSED AND REMANDED.

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

      . The Court of Appeals mistakenly said that all four sentences were ordered to run concurrently. Kirkwood v. State, 53 So.3d 7 (¶ 1) (Miss.Ct.App.2010).

      . Contrary to the Court of Appeals’s opinion, Kirkwood did not testify that "[h]e saw his friends exit the trailer 'with a blanket with something in it.’ ” Kirkwood, 53 So.3d at 12 (¶ 7).

      . The Court of Appeals mistakenly said that Kirkwood testified that there were three other people in the van. Kirkwood, 53 So.3d at 11-12, 21 (¶¶ 7, 42).

      . Mississippi Code Section 97-17-23(1) (Rev. 2006) defines burglary of a dwelling as "breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein.”


source: Caselaw Access Project

author: GRAVES, Presiding Justice,

license: Public Domain

text:
    Richard Leon LONG v. STATE of Mississippi.
    No. 2009-KA-01861-SCT.
    Supreme Court of Mississippi.
    Jan. 20, 2011.

      Office of Indigent appeals by George T. Holmes, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before GRAVES, P.J., RANDOLPH and PIERCE, JJ.
   GRAVES, Presiding Justice,

for the Court:

¶ 1. On May 13, 2008, Richard Long was indicted for selling a controlled substance within 1,000 feet of a public park. After a one-day trial, Long was found guilty and sentenced as an habitual offender to life imprisonment without the possibility of parole. On appeal, Long raised several issues. However, because the issues lack merit, this Court affirms Long’s conviction and sentence.

FACTS AND PROCEEDINGS BELOW

¶ 2. On October 28, 2009, Long was tried for the sale of a controlled substance, dia-zepam (Valium), within 1,000 feet of a public park. At trial, Agent Jerry Rodgers of the Olive Branch Narcotics Division testified that he was acting in an undercover capacity when he met Long. At this initial meeting, Rodgers arranged to purchase Valium from Long. Rodgers also supplied Long with his phone number so that Long could contact him when the Valium pills were available. After meeting with Long, Rodgers conducted an initial investigation and discovered that Long lived approximately 100 feet from a fence that separated the Olive Branch City Park and the trailer park where the purchase would take place.

¶ 3. On January 22, 2009, Long called Rodgers to notify him that he had the pills and was ready to sell them as soon as the funds were available to Rodgers. Rodgers then notified his narcotics team that it was time to set up the controlled buy. The narcotics team wired Rodgers for audio and video, which began recording once Rodgers left to meet Long. Once Rodgers was in route to the buy location, he received a phone call from Long confirming the time and place they were to meet.

¶4. As Rodgers pulled into the trailer park, he noticed Long outside his trailer, flashing his vehicle’s lights. Rodgers parked next to Long’s vehicle. He then stepped out of his vehicle to carry out the transaction. Rodgers and Long had engaged in a short conversation when Long produced a small sack of pills. Rodgers then counted out $100 and the exchange was made. After the exchange, Long told Rodgers that he would be getting some more pills in and told Rodgers to give him a call. After the transaction was complete, Rodgers got back into his vehicle and drove off.

¶ 5. Rodgers and the narcotics team then met at the Olive Branch Narcotics Division, where the bag of pills was kept until it was delivered to the Mississippi Crime Laboratory by Officer Cliff Roberts of the Olive Branch Police Department. Once at the lab, Erik Frazure, a forensic chemist specializing in drug analysis, tested the pills Rodgers had bought from Long. Frazure concluded that the pills were, in fact, diazepam, which is sold under the trade name, Valium, a schedule IV controlled substance.

¶ 6. At trial, the prosecution rested its case-in-chief after Frazure’s testimony. The defense then moved the trial court for a directed verdict, alleging that the prosecution had failed to prove a prima facie case that Long had sold a controlled substance within 1,000 feet of a public park. The trial court subsequently denied Long’s motion, finding that the prosecution had met the requirements for the matter to go to the jury. Following the trial court’s denial, the defense rested its case-in-chief without presenting any evidence. Counsel for both sides then gave closing arguments. Subsequently, the jury found Long guilty of selling a controlled substance within 1,000 feet of a public park. The trial court then excused the jury before the sentencing phase of the trial.

¶ 7. At sentencing, the prosecution presented argument alleging that Long had been indicted as an habitual offender under Mississippi Code Section 99-19-83, citing Long’s two prior felonies: (1) sexual assault on a child, and (2) aggravated incest with his own child. See Miss. Code Ann. § 99-19-83 (Rev.2007). Regarding the conviction for aggravated incest with his own child, Long contested and argued, “I do not have a daughter. I have a 23-year-old son. I was 25 years old at the time. The girl was 17. I didn’t know it.” According to Long, the girl was not his daughter at the time of the offense, she was the daughter of a woman that he married three years later. However, the trial judge found that the certified documents from Colorado:

clearly confirm that Mr. Long has been convicted on two separate occasions arising out of two separate indictments for felony crimes, and on each crime, he was sentenced to in excess of one year in the state penitentiary.
I will note that certainly [the court] will agree with Mr. Murphy’s[, counsel for the State of Mississippi,] characterization of the case law in that at least one of those crimes constitute a crime of violence, therefore, mandating that this court sentence Mr. Long to a term of life imprisonment without the possibility of parole.

The trial court, out of precaution, proceeded by performing a proportionality analysis. The trial court stated:

I do find that this sentence is not disproportionate to the crimes committed by a person in Mr. Long’s position. First and foremost, he has committed a sale of a controlled substance, Valium, Diazep-am. He’s been convicted.... Certainly, that is in and of itself an egregious crime.... To compound that, this was done within ... well within the distance of a park, which leads to the applicable enhancement, if this were not an (Section 99 — 19—]83 case, which would double the maximum sentence.
I will note ... that he was looking at a possible 40-year sentence for the crime that he was convicted of today, that he has two prior heinous convictions, a pending indictment on a violent crime ... For those and other reasons, certainly not limited to those reasons, I find that the punishment mandated in Section 99-19-83 is not disproportionate to the sentenced imposed thereon, and therefore, Mr. Long’s sentence will be a term of life imprisonment in the Mississippi Department of Corrections to be served as a Section 99-19-83 habitual offender.

¶ 8. On November 3, 2009, Long filed his motion for judgment notwithstanding the verdict or for a new trial. On December 9, 2009, the trial court denied Long’s motion. Thereafter, Long timely filed his appeal.

DISCUSSION

¶ 9. Long raises five issues on appeal:

(1)Whether the verdict is against the overwhelming weight of the evidence;
(2) Whether inflammatory closing argument by the State requires a new trial;
(3) Whether the State presented competent proof of the alleged sale within 1,000 feet of a public park;
(4) Whether the trial court should have developed more proof regarding Long’s prior convictions at sentencing; and
(5) Whether Long’s sentence is illegal or otherwise unconstitutionally disproportionate.

¶ 10. Based on the record before this Court, we affirm Long’s conviction and sentence.

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

¶ 11. In determining whether a jury verdict is against the overwhelming weight of the evidence, “this Court will only overturn a jury verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Boyd v. State, 977 So.2d 329, 336 (Miss.2008) (citing Taggart v. State, 957 So.2d 981, 987 (Miss.2007)). When making this determination, “the evidence should be weighed in the light most favorable to the verdict.” Bush v. State, 895 So.2d 836, 844 (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). If, in viewing the evidence in the light most favorable to the verdict, allowing the verdict to stand would constitute an unconscionable injustice, the proper remedy is to grant a new trial. Bush, 895 So.2d at 844-845.

¶ 12. Viewing the evidence in the light most favorable to the State and resolving all reasonable inferences in favor of the State, this Court finds that the jury verdict was not against the overwhelming weight of the evidence. The surveillance video makes clear the fact that Long sold Valium to Rodgers on January 22, 2009, at the location alleged in the indictment.

¶ 13. Long argued that the surveillance video was unreliable because it did not show any drugs or money being exchanged and the alleged seller was shown only for a brief moment. Although the man selling the Valium was shown on the video for only a brief moment, Rodgers testified that the man on the video was Long. Furthermore, while no money or drugs are seen on the video, Rodgers testified that he counted out $100 and exchanged the money for the pills. The pills were then delivered to the Mississippi Crime Laboratory, where Erik Frazure determined that the pills were, in fact, Valium, a controlled substance.

¶ 14. Although the surveillance video fails to show any money or drugs being exchanged, Rodgers testified that Long sold Valium to him for $100. Therefore, this Court finds that the verdict is not against the overwhelming weight of the evidence. Accordingly, we affirm the trial court’s denial of Long’s motion for judgment notwithstanding the verdict and for a new trial.

II. Whether inflammatory closing argument by the State requires a new trial.

¶ 15. Long complains that the prosecutor’s closing remarks equated to a “send-a-message” argument, which this Court consistently has held to be improper. Brown v. State, 986 So.2d 270 (Miss.2008). The language specifically complained of reads as follows:

You know, its not a murder case, but the sale of drugs, the illegal sale of drugs is important, ladies and gentlemen. It’s important to control it, and you do so by stopping those that get caught selling drugs illegally, which is exactly what this man did. The defendant sold drugs illegally and — and he’s guilty, and it’s time for him to be held accountable. He’s selling drugs near a park as you pass through on your way to I don’t know where.... I’m just glad we caught him when we did.

¶ 16. “Depending upon the facts and circumstances of each case, ‘send-a-message’ arguments may — standing alone — constitute reversible error.” Brown, 986 So.2d at 275. In determining whether the argument complained of constituted an improper “send-a-message” argument, this Court will apply the two-prong test set forth in Spicer v. State, 921 So.2d 292 (Miss.2006). However, the Court must first determine whether defense counsel objected to the statement. Id. at 317. (Spicer further provided that, despite the absence of objection, this Court will not proeedurally bar the issue where “the send-a-message argument was so ‘inflammatory’ that the trial judge should have objected on his own motion.”) Id. Next, this Court must determine whether, in light of the surrounding circumstances, defense counsel invited the statement. Id. at 318.

¶ 17. If the appellant can pass these threshold inquires, Spicer states that this “Court must determine (1) whether the remarks were improper, and (2) if so, whether the remarks prejudicially affected the accused’s rights.” Id. To clarify the Spicer test, Brown provided, “to meet the second prong of the test, we hold that it must be clear beyond a reasonable doubt that, absent the prosecutor’s inappropriate comments, the jury would have found the defendant guilty.” Brown, 986 So.2d at 276 (emphasis original).

¶ 18. To explain the problem with “send-a-message” arguments, this Court stated:

The jurors are representatives of the community in one sense, but they are not to vote in a representative capacity. Each juror is to apply the law to the evidence and vote accordingly. The issue which each juror must resolve is not whether or not he or she wishes to “send a message” but whether or not he or she believes the defendant to be guilty of the crime charged. The jury is an arm of the State but it is not an arm of the prosecution. The State includes both the prosecution and the accused. The function of the jury is to weigh the evidence and determine the facts. When the prosecution wishes to send a message they should employ Western Union. Mississippi jurors are not messenger boys.

Williams v. State, 522 So.2d 201, 209 (Miss.1988).

¶ 19. This Court finds that Long cannot pass the threshold inquiries set forth in Spicer, and therefore, Long’s assignment of error is without merit. Admittedly, Long failed to object during the State’s closing argument. Also, the statement was not so “inflammatory that the trial judge should have objected on his own motion.” Spicer, 921 So.2d at 317. In this case, the statement complained of does not rise to the level of those statements which this Court has found to be improper. See, e.g., Payton v. State, 785 So.2d 267, 270 (Miss.1999); Evans v. State, 725 So.2d 613, 675 (Miss.1997); Chase v. State, 699 So.2d 521, 537 (Miss.1997); Wilcher v. State, 697 So.2d 1123, 1139 (Miss.1997); Hunter v. State, 684 So.2d 625, 637 (Miss.1996); Williams v. State, 522 So.2d 201, 209 (Miss.1988).

¶ 20. In this case, the State’s remarks were simply reiterating the jury’s duty set forth in the jury instructions. The members of the jury were charged with the duty to make a finding of guilt based on the testimony and evidence presented at trial. By stating that the illegal sale of drugs must be controlled, “which is exactly what [Long] did,” the State was suggesting that the jury find Long guilty if they believed that the evidence and testimony had proved that Long sold drugs illegally. Therefore, the State’s closing remarks, taken in context, were not “so ‘inflammatory’ that the trial judge should have objected on his own motion.” Spicer, 921 So.2d at 317 (quoting Payton, 785 So.2d at 270). Accordingly, we find Long’s assignment of error to be without merit.

III. Whether the State presented competent proof of the alleged sale within 1,000 feet of a public park.

¶ 21. Here, Long claims that the State did not present sufficient evidence that the alleged sale occurred within 1,000 feet of a public park. However, Long’s claim is actually two-fold. Although Long contends that the State failed to present competent evidence that the sale occurred within 1,000 feet of a public park, the basis of that claim is that the testimony provided by the State’s star witness was insufficient because he did not have personal knowledge that the sale occurred within 1,000 feet of a public park. Thus, Long claims that Rodgers “cannot testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.” M.R.E. 602.

¶ 22. In considering whether the evidence was sufficient to uphold the jury’s verdict, this Court must determine whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush, 895 So.2d at 843 (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). “The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush, 895 So.2d at 843 (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 23. Considering the evidence in the light most favorable to the State, this Court finds that there was sufficient evidence to convict Long of selling a controlled substance within 1,000 feet of a public park. When asked what property borders the trailer park where Long sold Rodgers the Valium, Rodgers testified that the trailer park “meets up right there at the city park, the public park that we have in Olive Branch. It’s about 100 feet right behind [Long’s] house.” Rodgers further testified that the park is used for softball, fishing, walking, and “just city park stuff.” The State also published the surveillance video to the jury while Rodgers explained that the bright lights seen in the background were the lights from the city park’s softball fields. He further explained that the line seen running perpendicular to the softball field lights was the fence that separates the trailer park and the city park ninety-six feet away from the sale location.

¶ 24. In light of these facts, we find that Rodgers did have personal knowledge that the park was, in fact, a “public park” and that Long sold Rodgers a controlled substance within 1,000 feet of a public park. Furthermore, this Court finds that any rational juror could have found beyond a reasonable doubt that all the elements had been met by the State in proving the sale of a controlled substance within 1,000 feet of a public park. Accordingly, this Court finds Long’s argument and assignment of error to be without merit.

TV. Whether the trial court erred in sentencing Long as a violent offender under Mississippi Code Section 99-19-83.

¶ 25. Mississippi Code Section 99-19-83 provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss.Code Ann. § 99-19-83 (Rev.2007).

¶ 26. It is well-settled in this state that sentencing is within the complete discretion of the trial court. Hoops v. State, 681 So.2d 521, 537-538 (Miss.1996) (citing Reynolds v. State, 585 So.2d 753, 756 (Miss.1991)). “Further, the general rule in this state is that a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.” Id. at 538 (citing Fleming v. State, 604 So.2d 280, 302 (Miss.1992)). Pursuant to Mississippi Code Section 99-19-83, the maximum term of life imprisonment will be imposed if the State can prove beyond a reasonable doubt that the defendant has previously been convicted of two or more felonies on charges separately brought and arising out of separate indictments at different times, that the defendant was sentenced to and served separate terms of one year or more in any state or federal penal institution, and that at least one such felony was a crime of violence. (Bradley v. State, 934 So.2d 1018, 1028 (Miss.Ct.App.2005), reh’g denied, cert. denied, 933 So.2d 982 (Miss.2006)). “The most common method of demonstrating prior convictions for enhancement purposes is by introducing original or certified copies of commitment papers.” Davis v. State, 995 So.2d 767, 774 (Miss.Ct.App.2008) (quoting Frazier v. State, 907 So.2d 985, 991 (Miss.Ct.App. 2005)). Based on the State’s presentation of evidence, the trial court did not abuse its discretion in sentencing Long as an habitual offender to life imprisonment.

¶ 27. At sentencing, the State presented the trial court with certified copies of Long’s commitment papers from the State of Colorado showing that Long had been convicted of three felonies on two separate occasions and had served separate terms of more than one year each in prison. On May 24, 1996, Long was found guilty of two counts of sexual assault on a child, and was sentenced to six years in prison for each conviction, with the sentences to run concurrently. The sentencing court’s order stated that Long had committed the offenses charged on January 25, 1991. These same documents also reflect that Long pleaded guilty to aggravated incest with his own child in Adams County, Colorado, on February 25, 1998, with an offense date of September 28, 1989. Long subsequently was sentenced to twelve years in prison for aggravated incest with his own child.

¶ 28. In addition, Long admits to having been convicted of these three felonies. However, Long argues that his Colorado conviction for sexual assault of a child was consensual sex with a seventeen-year-old. He further argues that the alleged victim in his Colorado conviction for aggravated incest with his own child was not his daughter. Thus, Long takes the position that the trial court erred by not fully investigating the nature of his prior convictions, which were the basis of his sentence as an habitual offender.

¶ 29. Citing U.S. v. Vigil, 334 F.3d 1215 (10th Cir.2003), the State argued that, according to Colorado state law and federal law, aggravated incest constitutes a crime of violence. In Vigil, the district court determined that Colorado’s aggravated incest statute contained “as an element the threatened use of physical force....The district court determined, however, that the requisite threat of force was implied whenever a parent inflicts sexual penetration on his or her child.” Vigil, 334 F.3d at 1219. Vigil also noted that “psychological brutalization is inherent in an offense like this and incest and rape are in the same category as both being crimes of violence inherently whether or not raw force is used.” Id. at 1220 (quoting U.S. v. Passi 62 F.3d 1278, 1282 (10th Cir.1995)). The Vigil court found that even consent by the child-victim would not eliminate the risk of physical harm and that the age of the victim was immaterial. Vigil, 334 F.3d at 1223-1224. Thus, the Vigil court held that aggravated incest constituted a “crime of violence.” Id.

¶ 30. Therefore, it is the opinion of this Court that the State presented sufficient evidence to make the requisite showing that Long previously had been convicted of two or more felonies on charges separately brought and arising out of separate indictments at different times, that Long was sentenced to and served separate terms of one year or more in Colorado’s penal institution, and that at least one conviction was for a crime of violence. Because sentencing is within the complete discretion of the trial court, this Court finds that the trial court did not err in sentencing Long as an habitual offender under Mississippi Code Section 99-19-88.

V. Whether Long’s sentence is unconstitutionally disproportionate.

¶31. Long now challenges his sentence, claiming that life in prison without the possibility of parole for the sale of a controlled substance within 1,000 feet of a public park is unconstitutionally disproportionate and constitutes cruel and unusual punishment. Recently, in Cummings v. State, our Court of Appeals found:

[a]s a general rule, a sentence that does not exceed the maximum period of time allowed by statute will not be disturbed on appeal. Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992). A sentence that is “grossly disproportionate” to the crime committed is subject to attack on Eighth Amendment grounds applying the proportionality test from Solem v. Helm, 463 U.S. 277, 290-291, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); but see Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (the Solem test should only apply when a comparison of the crime to the sentence leads to an inference of gross disproportionality).

Cummings, 29 So.3d 859, 861 (Miss.Ct.App.2010). Also, this Court “has consistently held that sentences under the habitual-offender statute do not constitute cruel and unusual punishment.” Id. (citing Huntley v. State, 524 So.2d 572, 575 (Miss.1988); Jackson v. State, 483 So.2d 1353, 1355 (Miss.1986); Baker v. State, 394 So.2d 1376, 1378-79 (Miss.1981)). While the Cummings court held that Cummings’s life sentence did not give rise to the inference of gross disproportionality, and thus, there was no need for an Eighth Amendment proportionality test, this Court notes that the trial court in the case before us conducted a proportionality analysis. Cummings, 29 So.3d at 861. After conducting the proportionality analysis, the trial court found that Long’s life sentence was not unconstitutionally disproportionate. Id.

CONCLUSION

¶32. For the foregoing reasons, this Court finds that Long’s conviction was not against the overwhelming weight of the evidence and that the State presented competent proof that the sale occurred within 1,000 feet of a public park. We further find that Long’s sentence complies with Mississippi Code Section 99-19-83, is not unconstitutionally disproportionate and does not constitute cruel and unusual punishment under the Eighth Amendment. Therefore, we affirm the conviction by the Circuit Court of DeSoto County, as well as the sentence it imposed.

¶ 33. CONVICTION OF THE SALE OF A CONTROLLED SUBSTANCE, DIAZEPAM, WITHIN ONE THOUSAND (1000) FEET OF THE REAL PROPERTY OF A PARK AND SENTENCE OF LIFE IMPRISONMENT, WITHOUT THE ELIGIBILITY FOR PAROLE, AS A HABITUAL OFFENDER UNDER M.C.A. SECTION 99-19-83, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. APPELLANT SHALL PAY ALL COSTS OF COURT, $1,000 FINE PAYABLE WITHIN NINETY DAYS (90) FROM HIS RELEASE FROM INCARCERATION SHOULD THAT EVER OCCUR. APPELLANT SHALL BE GIVEN 250 DAYS CREDIT FOR TIME SERVED.

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

      . Rodgers and the narcotics team did not arrest Long immediately. Instead, Rodgers conducted a more extensive investigation because he wanted to find out who was supplying Long. After a month of investigating, Rodgers concluded that Long was ordering the pills through the mail, so he decided it was time to arrest Long.

      . While the video does not show money being exchanged for the pills, the audio portion of the video reveals the sound of money being counted and pills rattling.

      . While this issue pertains only to whether or not the sentence enhancement under Mississippi Code Section 41-29-142 applies, it should be noted that this issue is considered an essential element that must be submitted to the jury and proven beyond a reasonable doubt. See Miss.Code Ann. § 41-29-142 (Rev.2009); Brown v. State, 995 So.2d 698 (Miss.2008) (discussing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)).

      . Colo.Rev.Stat. § 18-6-302(l)(b).


author: MYERS, P.J.,

text:
    Leonard DOUGALEWICZ, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00533-COA.
    Court of Appeals of Mississippi.
    July 20, 2010.
    Rehearing Denied Nov. 9, 2010.
    Certiorari Denied Feb. 3, 2011.

      Thomas W. Powell, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., IRVING and MAXWELL, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. Leonard Dougalewicz was convicted of the murder of his friend, Bobby Linds-ley. The Hinds County Circuit Court sentenced Dougalewicz as a habitual offender to serve a term of life in the custody of the Mississippi Department of Corrections. Dougalewicz appeals his conviction and sentence, arguing that: (1) the trial court erred in admitting his statement to police into evidence; (2) the trial court should have granted his motion for a directed verdict of acquittal on the murder charge; and (3) the jury’s verdict is against the overwhelming weight of the evidence. Finding no error, we affirm Dougalewicz’s conviction and sentence.

FACTS

¶ 2. On Sunday, February 8, 2004, a friend found Lindsley, a self-employed exterminator, dead in his mobile home at 1500 Linde Drive in Jackson, Mississippi. The door to the residence was unlocked, and the television and lights were on. Lindsley had head wounds; facial bruises and lacerations; his jaw was broken; and his arms were bruised with what appeared to be defensive wounds. Linds-ley’s body was found in the living room of the trailer on the floor with one leg on a chair. Another chair was lying on its side. A splintered stick was found near the body, broken in pieces and stained with what appeared to be blood. Subsequent tests revealed that Lindsley’s blood-alcohol content was 0.28 percent, but no other drags or medications were detected. The cause of death was determined to be blunt force trauma to the head.

¶ 3. A pack of Marlboro Reds cigarettes and two packs of Marlboro Lights were recovered from the scene along with various other items. Testimony at trial indicated that Dougalewicz preferred Marlboro Reds but would occasionally smoke Lights. Lindsley’s pickup truck was outside, locked, with the keys in the ignition. Lindsley, who was self-employed, was known to carry money and to pay for things with cash, but no paper money was found on his person or in his belongings. Testimony at trial indicated that Douga-lewiez was known to carry a stick in his vehicle, but after the murder it had been replaced with a small bat.

¶ 4. Dougalewicz became a “person of interest” after it was discovered that he was one of the last persons seen with Lindsley. Lindsley and Dougalewicz were both frequent patrons at Hideaway Lounge on South Gallatin Street in Jackson, and they had been seen leaving together on Friday, February 6, 2004. Lindsley had dated Dougalewicz’s mother, and testimony at trial indicated that the two were friends and that Dougalewicz would occasionally stay with Lindsley. Dougalewicz was interviewed by the Jackson Police Department on March 11, 2004. After signing a Miranda waiver, Douga-lewicz told the detectives that he had been at Hideaway on Friday afternoon, went home at approximately 4:00 p.m., and then went back to the bar after dropping his car off at Lindsley’s trailer. Dougalewicz said he left Hideaway at approximately 8:30 p.m., went home, woke up the next day, went to work, and came home that afternoon and went to sleep. Dougalewicz said his mother woke him up on Sunday and told him that Lindsley had been found beaten to death. Dougalewicz told police that he did not kill Lindsley and that he had cried when he learned Lindsley had been killed. After the interview, Douga-lewicz was released.

¶ 5. Dan Bearden testified for the State. He stated that he, Dougalewicz, and Lindsley were drinking beer at Hideaway on February 6, 2004. As Lindsley played a video game, Dougalewicz told Bearden that he planned to rob Lindsley. After trying to talk Dougalewicz out of it, Bear-den informed Lindsley of what Dougalew-icz planned, although Bearden was not sure if Lindsley had taken him seriously. Dougalewicz and Lindsley left the bar together, and Lindsley was last seen alive leaving another bar with Dougalewicz that night.

¶ 6. Bearden had worked out of town for the week following Lindsley’s murder. He did not learn of the murder until after he returned home. Bearden later encountered Dougalewicz at a bar and accused him of killing Lindsley. Dougalewicz inquired as to what Bearden knew. After Bearden reminded Dougalewicz of their prior conversation, Dougalewicz presented four or five hundred dollars in cash and offered it to Bearden to “keep [his] mouth shut.” Bearden rudely refused the money. Bearden discovered a few days later that a $25,000 reward had been offered for information pertaining to Lindsley’s death. Bearden then gave a statement to police.

¶ 7. After the Bearden interview, Douga-lewicz was charged with capital murder. He was questioned by the detectives from the Jackson Police Department a second time on May 13, 2004. Dougalewicz signed a second Miranda waiver, and he gave another statement. Dougalewicz stated that after drinking he had returned to Lindsley’s trailer, drunk, and had laid down on a bed to sleep. Dougalewicz admitted that he had beaten Lindsley, with his fists, after the intoxicated Lindsley had surprised him with untoward and possibly confused sexual advances as Dougalewicz slept. Dougalewicz stated that he had believed Lindsley was alive but unconscious when he left. Dougalewicz averred in his statement that he had not robbed Lindsley or taken anything from the residence.

¶ 8. Dougalewicz was subsequently tried and convicted of murder and sentenced to life as a habitual offender. This appeal followed.

DISCUSSION

1. Admissibility of Dougalewicz’s Second Statement

¶ 9. Dougalewicz argues that his second statement was not voluntary and therefore should have been suppressed by the trial court. He contends that he was coerced or induced to give an incriminating statement by an apparent offer from the interviewing detective to reduce the charges against him from capital murder to murder, if he admitted that he had killed Lindsley without robbing him.

¶ 10. In Armstead v. State, 978 So.2d 642, 645-46 (¶ 11) (Miss.2008), the supreme court stated:

The State must prove beyond a reasonable doubt all facts prerequisite to the admissibility of a confession. As the trier of fact, the trial judge must first determine whether the defendant was advised of his Miranda rights. The trial judge must then ascertain, based on the totality of the circumstances, whether the defendant’s statement was freely and voluntarily given, and was not the result of force, threat, or intimidation. If the statement is admitted, this Court will not reverse so long as the finding is based on appropriate principles of law and supported by substantial evidence.

(Internal citations and quotations omitted). Reviewing courts will not disturb the trial court’s finding that a confession is admissible unless “convinced that such a finding was manifestly wrong and/or against the overwhelming weight of the evidence.” Morales v. State, 990 So.2d 273, 277-78 (¶ 16) (Miss.Ct.App.2008) (quoting Martin v. State, 854 So.2d 1004, 1007 (¶4) (Miss.2003)). The State’s burden of proving beyond a reasonable doubt that the defendant’s confession was voluntarily given is met and a prima facie case established when an officer involved in the interview testifies that the confession was voluntarily made without threats, coercion, or offers of reward. Id. at 278 (¶ 18).

¶ 11. The trial court held a hearing on Dougalewicz’s motion to suppress the second statement. Detective Eric Smith with the Jackson Police Department was the only witness who testified. Detective Smith testified he and another detective had interviewed Dougalewicz on May 13, 2004, after Dougalewicz was arrested. Detective Smith stated that he had read Dougalewicz the Miranda warnings and that Dougalewicz had signed a Miranda waiver prior to the interview. Detective Smith further testified that he had not threatened Dougalewicz or used any type of coercion to obtain the statement. Detective Smith testified that the statement was voluntarily given.

¶ 12. On cross-examination and redirect, Detective Smith elaborated further. He testified:

After I presented Mr. Dougalewicz with the capital murder affidavit, he read it. He asked me what [does] this mean. I said, it means that you’re being charged with capital murder. And he said, well, what can I get. I said, it’s punishable by either the death penalty or life in prison.

Detective Smith then explained the difference between capital murder and murder, stating that capital murder “would include some other felony like arm[ed] robbery.” Dougalewicz then gave his second statement, as we have outlined it above. After a brief recitation of the circumstances surrounding the statement, it began with “I did not take anything from [Lindsley].” After Dougalewicz concluded the statement, Detective Smith told him the charge would likely be reduced from capital murder to murder “due to the fact that he confessed to the murder and in his confession he did not admit to taking anything from Mr. Lindsey [sic].” Detective Smith specifically denied, however, that he had offered or promised Dougalewicz a reduced charge in exchange for the admissions.

¶ 13. In Morales, 990 So.2d at 278 (¶ 18), we stated that:

The State’s burden of proving beyond a reasonable doubt that an inculpatory statement was voluntarily given “is met and a prima facie case established by the testimony of an officer, or other persons having knowledge of the facts, that the confession was voluntarily made without threats, coercion, or offers of reward.”

(Quoting Martin, 854 So.2d at 1006-07 (¶ 4)). Detective Smith’s testimony at the suppression hearing met this prima facie burden. Dougalewicz argues that he was “given the impression of hope of reward by a reduction of the charges against him from capital murder to murder” and that he was “induced into making an involuntary statement ... to avoid the greater crime of capital murder.”

¶ 14. The supreme court, however, has held that this analysis “does not require sweeping inquiries into the state of mind of a criminal defendant who has confessed. Coercive police action is a necessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment.” Martin, 854 So.2d at 1007 (¶ 4) (internal citations and quotations omitted). Dougalewicz argues that the circumstances of the interview suggested an implied police promise to reduce the charges, but Detective Smith specifically denied that any offer, express or implied, existed to reduce the charges. Moreover, Dougalewicz was initially charged with capital murder, and nothing in the record suggests that this charge was unwarranted. It appears much more likely that Dougalewicz’s admissions were calculated to avoid prosecution of the crime with which he was charged. This would not render his statement suspect or involuntary. The trial court’s finding that Dougalewicz’s second statement was voluntary is supported by substantial credible evidence. This issue is without merit.

2. Weathersby Rule

¶ 15. In his second issue, Dougalewicz argues that he was entitled to a directed verdict based on the holding in Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933). There, the supreme court held:

[W]here the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the [SJtate, or by the physical facts or by the facts of common knowledge.

Id. (citations omitted).

¶ 16. This argument is without merit because Dougalewicz did not testify at trial, and he did not offer eyewitness testimony. Garrett v. State, 921 So.2d 288, 291 (¶¶ 12-14) (Miss.2006) (“[TJhis Court has never held that an unsworn statement to police may be used for purposes of a Weathersby analysis.”). Moreover, Weath-ersby has no application “where the accused initially denies the act.” Barfield v. State, 22 So.3d 1175, 1185 (¶33) (Miss.2009) (citation and internal quotations omitted). Weathersby is likewise inapplicable where the defendant’s version of the killing is “contradicted by physical facts.” Id. Dougalewicz’s version of the events was that he had beaten Lindsley with his fists. However, the medical examiner testified that the injuries did not appear to have been caused by bare hands; instead, they were consistent with repeated strikes from a hard, blunt object. A bloody, broken stick was found at the scene. This issue is without merit.

3. Weight of the Evidence

¶ 17. In his final issue, Dougalewicz argues that the jury’s verdict is against the overwhelming weight of the evidence. He urges that this Court should reverse and remand for a new trial or, in the alternative, render a conviction for manslaughter.

¶ 18. “The jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed.” Smith v. State, 3 So.3d 815, 818 (¶ 13) (Miss.Ct.App.2009) (quoting Ford v. State, 737 So.2d 424, 425 (¶8) (Miss.Ct.App. 1999)). The supreme court has discussed appellate review of the weight of the evidence supporting a jury’s verdict, stating:

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

Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (internal citations and quotations omitted). The court has cautioned, however, that a challenge to the weight of the evidence “is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)).

¶ 19. Reviewing the evidence as we have outlined it above, we do not find the jury’s verdict against the overwhelming weight of the evidence, nor do we find that manslaughter was the only verdict a reasonable jury could have reached. Douga-lewicz initially denied any involvement in the killing, and his second statement’s version of the events was contradicted by physical evidence and witness testimony. Bearden testified that Dougalewicz had stated his intention to rob the victim prior to the killing. Dougalewicz did call Bear-den’s credibility into question, but only to the extent that it created a factual question for the jury. “The jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Nix v. State, 8 So.3d 141, 146 (¶ 26) (Miss.2009) (quoting Mohr v. State, 584 So.2d 426, 431 (Miss.1991)). This issue is without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF MURDER AND SENTENCE AS A HABITUAL OFFENDER OF LIFE 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 THE APPELLANT.

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

      . Lindsley was stated to prefer Marlboro Lights "shorts”; it is unclear from the record whether the two packs of Marlboro Lights recovered from the scene were "shorts."

      . Bearden's testimony suggested that Douga-lewicz might have been intoxicated at the time he stated his intent to rob Lindsley.

      . Dougalewicz stated that neither he nor Lindsley were homosexuals. He stated that he “[didn’t] think [Lindsley] knew what he was doing.”


author: GRIFFIS, J.,

text:
    Carlos F. JACKSON a/k/a Los, Appellant, v. STATE of Mississippi, Appellee.
    No. 2009-KA-00173-COA.
    Court of Appeals of Mississippi.
    Sept. 28, 2010.
    Rehearing Denied Jan. 11, 2011.

      Daniel Ellis Morris, Cleveland, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. Carlos Jackson was convicted of two counts of sexual battery and one count each of aggravated assault, armed robbery, and burglary of a dwelling. On appeal, Jackson argues: (1) the trial court erred during his sentencing phase because it used evidence outside of the evidence introduced during the trial, and his sentence was excessive; (2) the trial court erred in allowing the testimony of Sunday Montague; (3) the trial court erred in granting the State’s Batson challenges; (4) his counsel’s performance was ineffective; and (5) the cumulative effect of all the errors requires a reversal. We find no error and affirm.

FACTS

¶ 2. In the early morning hours of June 10, 2007, Jackson kicked in the back door of Chris Carroll (Carroll) and Deneciya Reynolds’s (Reynolds) apartment while the couple and their two children slept. He disguised himself by wrapping a t-shirt around his face. Once inside, he grabbed a knife out of the kitchen drawer.

¶ 3. He then walked to the couple’s bedroom, broke through the door, and entered. He demanded money. Reynolds and Carroll awoke. Jackson cut Carroll’s hand with his knife and then demanded that Carroll go into the bathroom. He took Reynolds into another room where the children were asleep. He ripped Reynolds’s clothes and forced her to perform oral sex on him. Then, he forced her to receive oral sex from him.

¶ 4. Carroll left the bathroom, and Jackson attempted to tie him up with a television cord. Carroll fought Jackson. While Jackson and Carroll fought, Reynolds grabbed one of her children and fled the apartment. Jackson saw Reynolds leaving and ran after her. Reynolds ran into Patrick Andrews’s apartment across the hall, and Jackson followed her into the other apartment. Carroll followed Jackson, and the two men continued to fight.

¶ 5. A neighbor, Andrews, broke up the fight, and Jackson fled the apartment. Carroll and a group of other men chased Jackson. He hid in the woods next to the apartment complex until the police arrived and arrested him. He was indicted and pleaded not guilty by reason of insanity.

¶ 6. During voir dire, all five of the defense’s peremptory challenges were made on Caucasians. The State noted for the record that “each strike the defense has made has been against members of the white race.” The trial court reviewed the five peremptory challenges. The defense listed race-neutral reasons for each strike.

¶ 7. The defense challenged two of the jurors because both were in the medical field. The defense’s stated race-neutral reason for the challenges was because the jurors might be “swayed by [their] own education and training as opposed to the testimony and medical opinions that the respective doctors will testify to.” The trial court denied both peremptory challenges, finding that it was not a proper race-neutral reason because the defense could pose certain questions during voir dire to determine if the ladies believed that it would have been difficult not to be swayed by medical training and education as opposed to considering the testimony of the expert in the medical field.

¶ 8. The defense challenged another juror because he was a mail carrier, and its race-neutral reason was as follows: “I have had life experience with mail carriers[,] and I don’t value their judgment.” The trial court denied the challenge because it found the reason to not be sufficiently race neutral.

¶ 9. At trial, Jackson did not dispute the evidence offered by the State; however, he argued that he was insane at the time he had committed the crimes. The defense’s lay witnesses were Jackson’s parents, Frank Tate and Wayne Dowdy. The defense’s expert witness, Dr. Timothy Summers, testified that in his opinion Jackson did not have the mental capacity to differentiate between right and wrong and to understand the consequences of his actions on June 10, 2007.

¶ 10. The State called Dr. Chris Lott and Sunday Montague as rebuttal witnesses. Dr. Lott testified that he believed that Jackson had mental issues but that Jackson could differentiate between right and wrong and that he understood the consequences of his actions on June 10, 2007.

¶ 11. Montague testified that she had dated Jackson for a couple of years. She testified that she had seen Jackson use cocaine at least a dozen times within six months to a year prior to the incident. The last time that she saw him use cocaine was three days prior to the incident. She testified that Jackson was usually a very calm person; but after he used cocaine, his personality changed, and he would become very upset and act crazy.

¶ 12. The jury found Jackson was sane at the time he committed the crimes and found him guilty of all five charges. The trial court denied his post-trial motion for a new trial.

ANALYSIS

1. Whether the trial court erred in deciding Jackson’s sentence.

¶ 13. Jackson argues that the trial court erred during the sentencing phase because it considered evidence outside of the evidence introduced at trial, and it did not consider Jackson’s mental defects. He claims that his sentence is excessive and in violation of the Eighth Amendment because he is legally mentally retarded. He offers only his assertion and does not cite any authority.

¶ 14. “Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Beamon v. State, 9 So.3d 376, 380 (¶ 11) (Miss.2009) (quoting Wall v. State, 718 So.2d 1107, 1114 (¶ 29) (Miss.1998)). The supreme court has held “that a sentence that is within the statutorily defined parameters of the crime, usually is upheld and not considered cruel and unusual punishment.” Id. (citing Barnwell v. State, 567 So.2d 215, 222 (Miss.1990)).

¶ 15. We evaluate the maximum sentence allowed by law against the sentence given. For the two counts of sexual battery, the maximum sentence for each count of sexual battery is thirty years. Jackson was sentenced to serve twenty years for each count of sexual battery. Miss.Code Ann. § 97-3-101 (Rev.2006). For aggravated assault, the maximum sentence is twenty years. Jackson was sentenced to ten years for aggravated assault. Miss. Code Ann. § 97-3-7(2) (Supp.2009). For armed robbery, the minimum sentence is three years, and the maximum sentence is life. Jackson was sentenced to serve fifteen years for armed robbery. Miss.Code Ann. § 97-3-79 (Rev.2006). For burglary of a dwelling, the maximum sentence is twenty-five years. Jackson was sentenced to serve fifteen years for burglary of a dwelling. Miss.Code Ann. § 97-17-23 (Supp.2009). The trial court also directed that each sentence was to run consecutively.

¶ 16. Because Jackson’s sentence was within the statutory guidelines, this Court has no legal basis to regard Jackson’s sentences as excessive or to find that the trial court abused its discretion. Further, Jackson’s brief asserts that the sentencing was improper because of Jackson’s mental retardation and insanity. The question of Jackson’s sanity, at the time of the crime, was a question of fact that was determined by the jury. As to Jackson’s allegation that he was mentally retarded, there was a reference to the fact that Jackson may be mildly retarded. However, that issue was not raised or presented to the trial court. Further, during the sentencing hearing, Jackson’s attorney only asked for the court’s “mercy” and did not raise any issue as to his possible mental retardation as a mitigating factor in his sentence. Finally, Jackson argues that the trial court erred when it did not require a pre-sentencing investigation. However, there is no evidence that Jackson requested any form of pre-sentencing investigation. Accordingly, this issue has no merit.

2. Whether the trial court erred in allowing the testimony of Sunday Montague.

¶ 17. Jackson contends that Montague’s testimony prejudiced Jackson because the State failed to list her as a witness and because she was not properly sequestered during trial. The State responds that it had no duty to disclose its potential list of rebuttal witnesses and that there is no proof that Montague was in the courtroom during the testimony of any other witness.

¶ 18. Uniform Rule of Circuit and County Court 9.04 requires the State to disclose to the defense the names and addresses of all witnesses for the State’s case-in-chief, along with any written or recorded statements. The State has no duty to disclose the names of possible rebuttal witnesses unless the State has requested a notice of alibi defense. Burnside v. State, 912 So.2d 1018, 1026 (¶ 18) (Miss.Ct.App.2005).

¶ 19. Defense counsel learned what Montague’s testimony would be the morning that she was called to be a rebuttal witness. The defense objected to her being called because of the “untimely disclosure of her identity.” The trial court overruled the objection, and the prosecutor explained that until the day before calling Montague the State believed that the defense’s expert, Dr. Summers, would affirmatively testify to Jackson’s alcohol and drug addiction. When Dr. Summers did not testify to that conclusion, the State called a rebuttal witness to provide testimony that she had personally watched the defendant use cocaine and that she had personally observed the effects of cocaine on defendant as recently as three days prior to the commission of the crime.

¶ 20. Here, the evidence offered through Montague to overcome the insanity defense was rebuttal evidence; thus, allowing a witness, who was first disclosed on morning of trial, to testify was not a discovery violation.

¶ 21. The purpose of the witness-sequestration rule is to prevent a witness from adapting his/her testimony to previous testimony. Douglas v. State, 525 So.2d 1312, 1316 (Miss.1988) (citing Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976)). When a party invokes the rule, the trial court must apply it; the trial court has no discretion. Finley v. State, 725 So.2d 226, 233 (¶ 22) (Miss.1998). The witness-sequestration rule applies to rebuttal witnesses. Id.

¶22. The defense failed to object to Montague testifying at trial on the ground that she was not properly sequestered during trial. Also, there is no evidence in the record to show that Montague was in the courtroom during previous testimony. Accordingly, this issue is procedurally barred and without merit.

3. Whether the trial court erred in granting the State’s Batson challenges.

¶23. Jackson claims that the State failed to make a prima facie case to prove that race was the controlling issue in the use of the defense’s peremptory challenges. This Court gives great deference to the trial court’s findings of whether or not a peremptory challenge was race neutral. Manning v. State, 765 So.2d 516, 519 (¶ 8) (Miss.2000).

¶ 24. In Batson, the United States Supreme Court established a three-part test for a party to make out a prima facie case of purposeful discrimination in jury selection. Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The objecting party must show that:

(a) he is a member of a cognizable racial group;
(b) the non-objecting party exercised peremptory challenges to remove venire members of the defendant’s race; and
(c) these facts and any other relevant circumstances raise an inference that the non-objecting party used that practice to exclude the veniremen from the petit jury on account of their race.

See id. at 96, 106 S.Ct. 1712.

¶ 25. Once the objecting party does so, the non-objecting party is then required to provide a race-neutral reason for exercising the challenge. Id. at 97, 106 S.Ct. 1712. The court may accept the reasons given and allow the challenge. Whether an objecting party has presented a prima facie case is a determination of fact, and the trial judge is afforded great discretion in evaluating whether the objecting party has met this burden. Thorson v. State, 721 So.2d 590, 593 (¶ 4) (Miss.1998). However, once a party “has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” Estate of Jones v. Phillips ex rel. Phillips, 992 So.2d 1131, 1143 (¶ 27) (Miss.2008) (citation omitted).

¶ 26. Here, the defense exercised all of its peremptory challenges on Caucasians. Subsequently, the following exchange occurred:

By the State: Judge, the State wants to note that each strike the defense has made has been against members of the white race.
By the Court: Alright.
By the Defense: I challenged Mr. Greer and Ms. Oliver because they’re both registered nurses with a nursing history. ...

Without objecting and without prompting by the trial court, the defense provided a race-neutral reason for each peremptory challenge. The trial court did not directly rule on whether or not the State made a prima facie showing of purposeful discrimination. The trial court ruled on the ultimate issue of the race-neutral reasons as they were offered by the defense.

¶ 27. In this appeal, Jackson argues that the State “did not make a prima facie case to prove that race was the controlling issue in the challenge.” Indeed, the State had the burden to make a prima facie case that the defense exercised its peremptory challenges on the basis of race before a Batson hearing was necessary. Batson, 476 U.S. at 94, 106 S.Ct. 1712. However, because the Jackson’s counsel offered his race-neutral reasons for the strikes before the trial court ruled on the question of intentional discrimination, the preliminary issue of whether the State made a prima facie case was waived by Jackson and is now moot. In his brief, Jackson argues that he had “good reason to challenge” one juror because he was a mail carrier and that he had previously accepted white jurors. However, Jackson provides no authority for his position. Accordingly, we cannot say the trial judge abused his discretion. This issue lacks merit.

Ip. Whether the 'performance of Jackson’s counsel was ineffective.

¶ 28. Jackson asserts that his counsel’s performance was ineffective. To prove ineffective assistance of counsel, Jackson must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Jackson to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. “[T]he defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001) (citations omitted). To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

¶ 29. Furthermore, the merits of an ineffective-assistanee-of-counsel claim on direct appeal should be addressed only when: “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999). If this Court does not reverse on other grounds and is unable to conclude that the defendant’s counsel was constitutionally ineffective, it should affirm “without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.” Id. Review on direct appeal of an ineffective-assistance-of-counsel claim is confined strictly to the record. Id. at 1102 (¶ 6).

¶ 30. Jackson claims that his counsel was ineffective due to counsel: (a) putting the defense’s expert witness, Dr. Summers, on the stand while Dr. Summers was allegedly intoxicated; (b) arguing the defense of insanity; and (c) not spending enough time on voir dire.

A. Defense Counsel Calling Dr. Summers as an Expert Witness

¶ 31. Jackson contends that Dr. Summers was intoxicated and that his defense counsel should not have put Dr. Summers on the stand. He claims that Dr. Summers’s demeanor and incoherence were the basis for the jury’s verdict.

¶ 32. Upon review of the record, it is unclear that these assertions amount to ineffective assistance of counsel. “ ‘[C]ounsel’s failure to file certain motions, call certain witnesses, ask certain questions, or make certain objections fall[s] within the ambit of trial strategy’ and do not give rise to an ineffective[-]assistance[-]of[-]counsel claim.” Pruitt v. State, 807 So.2d 1236, 1240 (¶ 8) (Miss.2002). Although Dr. Summers had been hit in the head with a chair a few days before trial and had suffered from some numbness in part of his face, nothing in the record supports Jackson’s claim that he was intoxicated. Further, Jackson has not proven that the outcome of the case was prejudiced by Dr. Summers’s testimony, especially in light of the overwhelming weight of evidence against him, including the testimonies of Reynolds and Carroll.

B. Defense Counsel’s Trial Strategy

¶ 33. Jackson asserts that he did not have the mental capacity to choose what his trial strategy should have been. Jackson claims that he and his parents did not agree with the defense, but his counsel assured them that the defense of insanity was the best defense.

¶ 34. Defense’s strategy to argue that Jackson was insane falls under the ambit of trial strategy and does not give rise to ineffective assistance of counsel. Also, Jackson fails to show how the outcome of the case was prejudiced by defense counsel’s strategy.

C. Voir Dire

¶ 35. Jackson contends that had defense counsel spent more time on voir dire, he would have laid the proper foundation for the defense’s peremptory challenge; therefore, the jury would have found Jackson not guilty.

¶ 36. “Generally ... an attorney’s actions during voir dire ... [are] a matter of trial strategy, which ‘cannot be the basis for a claim of ineffective assistance of counsel unless counsel’s tactics are shown to be so ill chosen that it permeates the entire trial with obvious unfairness.’ ” Harrell v. State, 947 So.2d 309, 315 (¶ 21) (Miss.2007) (quoting Burns, 813 So.2d at 675-76 (¶ 22)). While defense counsel could have asked more questions of the medical professionals on venire about their abilities to accept the medical testimony presented, this action did not make the entire trial unfair to Jackson. Jackson offers no evidence to show that his attorney’s performance during voir dire was so inadequate that the outcome of the trial would not have been the same.

¶ 37. We find that the record before us on appeal is insufficient to affirmatively show ineffective assistance of counsel of constitutional dimensions. As such, ■ we deny relief on this issue without prejudice so that Jackson may present an ineffective-assistance-of-counsel claim in a properly filed motion for post-conviction collateral relief, if he so chooses.

5. Whether cumulative error warrants reversal.

¶ 38. Finally, Jackson argues that this Court should grant his requested relief based on the cumulative errors committed at the trial. However, we have found that all of Jackson’s assignments of error are without merit. “As there was no reversible error in any part, so there is no reversible error to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss.1987). Accordingly, this issue is also without merit.

¶ 39. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTION OF COUNTS I AND II, SEXUAL BATTERY, AND SENTENCE OF TWENTY YEARS FOR EACH COUNT; COUNT III, AGGRAVATED ASSAULT, AND SENTENCE OF TEN YEARS; COUNT IV, ARMED ROBBERY, AND SENTENCE OF FIFTEEN YEARS; AND COUNT V, BURGLARY OF A DWELLING, AND SENTENCE OF FIFTEEN YEARS, ALL TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A $5,000 FINE FOR EACH COUNT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT. IRVING, J., NOT PARTICIPATING.