author: IRVING, P.J.,

text:
    Kevin Dale McCAIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01865-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.
    Rehearing Denied June 28, 2011.

      Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., MYERS and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Kevin Dale McCain was convicted in the Warren County Circuit Court of robbery and sentenced to life in the custody of the Mississippi Department of Corrections, as a habitual offender, without eligibility for parole or probation. Feeling aggrieved, McCain appeals and asserts that: (1) the State failed to prove his habitual-offender status; (2) his case should have been dismissed due to speedy-trial violations; (3) the circuit court erred in allowing a cap into evidence; and (4) the circuit court should have quashed his indictment.

¶ 2. Finding no reversible error, we affirm the judgment of the circuit court.

FACTS

¶ 3. Cheryl Jinkins was working as a teller at a Trustmark Bank in Vicksburg, Mississippi, on January 30, 2008, when she was approached by a man who handed her a note. The note stated: “I want 20000[sic] in 100s, 50s, & 20s[,] or all die.” Jinkins attempted to comply with the note’s demand. When she opened her drawer to retrieve money for the man, the bank’s silent alarm was triggered. Jinkins handed the man approximately $2,100 in cash. After the robber had received the money, he left the bank. The police officers who investigated the robbery retrieved the bank’s surveillance footage. The footage contains images of the robber, who appeared to be wearing a grey or blue jacket, blue jeans, boots, and an orange Texas Longhorns hat. Images from the surveillance footage were released to the local news media in an effort to identify the robber.

¶ 4. Approximately two hours after the robbery, Officer Rita McNair of the Men-denhall Police Department was conducting a road block on Highway 13 in Menden-hall, Mississippi, due to construction. While Officer McNair had vehicles stopped, one automobile driver drove around the road block and attempted to proceed past Officer McNair. Officer McNair stopped the vehicle, which was driven by McCain. Officer McNair arrested McCain for driving with a suspended license, failing to yield to blue lights, improper passing, and reckless driving. Officer McNair testified that she and other officers noticed that McCain “had a lot of money on him.” McCain paid almost fifteen hundred dollars in cash to bond out from the arrest and was released. The vehicle that he had driven remained impounded near Mendenhall.

¶ 5. Officer McNair was watching the evening news on January 30, 2008, when she saw a segment on the robbery. Officer McNair testified that she recognized McCain from his arrest; Officer McNair “also recognized ... the cap that he was wearing.” Investigator Robert Stewart with the Vicksburg Police Department was ultimately contacted as a result of Officer McNair’s identification.

¶ 6. The day after the robbery, McCain went to retrieve his vehicle and was arrested by Officer McNair; Officer McNair testified that McCain was wearing an orange Texas Longhorns cap at the time of his arrest. Investigator Stewart obtained a search warrant for McCain’s vehicle, and then he proceeded to search the vehicle with other officers. On the front passenger seat of the vehicle was a note that read: I want 20000[sic] in 100s, 50s, & 20s[,] or all die.” Another note reading “100s & 50s & 20s” was also found in the vehicle. McCain’s home was later searched pursuant to a search warrant. Inside, officers found clothing similar to that worn by the bank robber.

¶ 7. Investigator Troy Kimble with the Vicksburg Police Department went to the Simpson County Jail to transport McCain to Vicksburg and obtained an orange Texas Longhorns cap from the Simpson County Jail at that time. At trial, the State admitted the cap into evidence, despite an objection that the cap had not been properly authenticated and that the chain of custody had not been proven.

¶ 8. On February 7, 2008, Jinkins identified McCain from a photographic lineup that was shown to her at the Vicksburg Police Department. At trial, Jinkins identified McCain as the man who had robbed her. At trial, Jinkins also identified the note that was handed to her during the robbery. The note had been recovered from McCain’s vehicle.

¶ 9. At the conclusion of the trial, McCain was found guilty. During the sentencing hearing, the State introduced a variety of documents in an effort to prove McCain’s status as a habitual offender. The documents included certified copies of McCain’s prior convictions and a report from the Federal Bureau of Prisons. O’Neal Brown, a federal probation officer, testified at the sentencing hearing that, based on the report, McCain had served more than a year and a day for his prior convictions. The circuit court declined to make a ruling as to McCain’s habitual-offender status at the conclusion of the hearing; instead, the court gave the State a week to produce additional records proving McCain’s habitual-offender status. One week later, the State filed a report from Vincent Shaw, an employee of the Federal Bureau of Prisons, regarding McCain’s prior convictions. Three weeks later, the sentencing hearing was resumed. At its conclusion, the circuit court found that it had sufficient evidence showing McCain’s status as a habitual offender. McCain was accordingly sentenced to life imprisonment as a habitual offender, without eligibility for parole or probation.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Habitual-Offender Status

¶ 11. The document that was filed by the State after the initial sentencing hearing was sufficient to prove McCain’s habitual-offender status. That document, which was produced by the Federal Bureau of Prisons, was attached to a letter of certification. The document showed that McCain had two prior convictions for which he had served at least a year and a day for each conviction.

¶ 12. McCain complains that the State failed to introduce the newer document as an exhibit during the continued sentencing hearing. While this is true, the document, with an attached letter of certification, was filed in the circuit court. Furthermore, the circuit court took notice of the document at the second sentencing hearing.

¶ 18. Under these circumstances, we find that there is sufficient evidence to support the circuit court’s finding of McCain’s habitual-offender status. This contention of error is consequently without merit.

2. Speedy-Trial Violations

¶ 14. McCain alleges that both his constitutional and statutory rights to a speedy trial were violated. McCain was arrested on January 30, 2008, indicted on May 8, 2008, and arraigned on May 9, 2008. On July 25, 2008, the circuit court held an omnibus hearing, wherein the State indicated that the charge against McCain might be dropped in favor of federal prosecution of the robbery; the case was continued to allow the district attorney’s office time to decide whether it would continue its prosecution of McCain. On July 26, 2008, McCain sent a letter to the circuit court, which the court interpreted as a demand for a speedy trial. McCain was set for trial on September 10, 2008, but his trial was reset due to the circuit court’s docket. On February 13, 2009, McCain filed a motion to dismiss because of the alleged violation of his right to a speedy trial. The State requested that McCain’s trial be set for March 2009, which was the first court setting available. On March 10, 2009, two weeks before McCain was set to go to trial, McCain’s attorney filed a motion to withdraw, stating that irreconcilable differences had arisen between him and McCain. McCain retained a new attorney, and his case was continued for reasons that are not stated in the record. Due to the nearness in time to the date of trial, it is likely that McCain’s attorney needed more time to prepare for trial. A joint motion for continuance was filed and granted in June 2009, and McCain was finally tried on September 14, 2009.

¶ 15. For clarity’s sake, we discuss McCain’s statutory and constitutional rights separately.

a. Constitutional Right

¶ 16. The Sixth Amendment to the United States Constitution guarantees defendants “the right to a speedy and public trial.... ” U.S. Const. amend. VI. Mississippi courts utilize the factors found in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) when determining whether a defendant’s constitutional right to a speedy trial has been violated. Murray v. State, 967 So.2d 1222, 1229 (¶ 22) (Miss.2007). The factors are: “length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182). In determining whether a defendant’s constitutional right to a speedy trial has been violated, the right attaches “at the time of arrest.” Id. at 1280 (¶ 28) (quoting Atterberry v. State, 667 So.2d 622, 626 (Miss.1995)).

¶ 17. As to the factor of delay, “any delay of eight (8) months or longer is presumptively prejudicial.” Id. (quoting Noe v. State, 616 So.2d 298, 300 (Miss. 1993)). Here, McCain was arrested on January 30, 2008, and he proceeded to trial on September 14, 2009. Therefore, more than eight months passed between the time of McCain’s arrest and his trial. Therefore, the delay in bringing him to trial is presumptively prejudicial.

¶ 18. When looking at the reasons for any delays, “[a]ny delay caused by a particular party will be assessed against that party.” Thomas v. State, 48 So.3d 460, 476 (¶ 45) (Miss.2010) (citing Poole v. State, 826 So.2d 1222, 1229 (¶20) (Miss. 2002)). Additionally, “[b]ecause the State bears the burden of providing a speedy trial, it must show either a delay caused by the defendant or good cause for the delay.” Id. (citing Hersick v. State, 904 So.2d 116, 121 (¶ 7) (Miss.2004)). In Thomas, the Mississippi Supreme Court stated that delays over which the State has no control do not weigh against the State. See id. at 476 (¶¶ 45-46) (citing Fleming v. State, 604 So.2d 280, 299 (Miss.1992)). However, there are numerous cases from both the Mississippi Supreme Court and this Court stating that congested court dockets will be held against the State, but only slightly. See, e.g., Murray, 967 So.2d at 1230 (¶ 26); Houser v. State, 29 So.3d 813, 821-22 (¶ 21) (Miss.Ct.App.2009). One of the delays in this case occurred because McCain and the State had agreed to continue his trial, and we will not count those three months against the State. The delay in July 2008 apparently occurred because the State was unsure whether it was going to continue its prosecution of McCain. Therefore, we count the months between July 2008 and September 2008 against the State. The record shows no particular explanation for any other delays except the circuit court’s crowded docket. Therefore, we find that all of those delays weigh only slightly against the State. After having examined all of the delays that occurred, we find that this factor weighs only slightly toward a finding of a violation of McCain’s right to a speedy trial, as only two months out of the time that it took to bring McCain to trial can be shown to weigh significantly against the State.

¶ 19. In the July 2008 letter that McCain sent to the circuit court, McCain wrote:

I am writing concerning my incarceration here at Warren Co. Jail. If you recall[,] I appeared before you on Fri. July 25 for my ominous [sic] hearing, and I am represented by Louis Field. There was [sic] some issues I wanted to address but was unable to do so.
I have been here since Jan. 28[sic], and approximately two months ago I was informed by my attorney that the State was not going to prosecute my case due to the fact that the Feds were also charging me in the same matter, since no motions were filed on my behalf yesterday or any new date set[,] I now sit here with no court date and the State has no intention in [sic] prosecuting my case. I got the impression that my attorney and the DA were avoiding the issue. I think a reminder to Mr. Smith, from you, would set things in motion, respectfully requested of course!
Like you said, “There is no sense in me eating up the county’s food.”

We find no fault with the circuit court’s decision to view this letter as a demand for a speedy trial, as McCain requested that the court “set things in motion.” Therefore, we find that McCain asserted his right to a speedy trial. This factor weighs in favor of a finding that McCain’s right to a speedy trial was violated.

¶ 20. Finally, we find that the factor of whether prejudice occurred weighs heavily in favor of the State. As stated in Thomas:

When analyzing the prejudice prong under Barker, [an appellate court] considers: (1) the “actual prejudice to the accused in defending his case, and (2) interference with the defendant’s liberty.” Brengettcy [v. State], 794 So.2d [987,] 994 [ (¶ 20) (Miss.2001) ] (quoting Perry v. State, 637 So.2d 871, 876 (Miss. 1994)). [An appellate court] considers three interests when analyzing whether a defendant has suffered prejudice for a lengthy delay in the speedy-trial context: “(1) preventing ‘oppressive pretrial incarceration!;] (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired.” IcL (citing Barker, 407 U.S. at 632, 92 S.Ct. 2182).

Thomas, 48 So.3d at 476 (¶ 49). McCain provides no explicit examples of how the delay in bringing him to trial prejudiced his defense, other than to state that his incarceration caused him anxiety and “inherently prejudiced” his defense. Having reviewed the record, we can find no evidence to show that McCain was prejudiced by the delay in bringing him to trial.

¶ 21. Although three of the four Barker factors weigh somewhat in McCain’s favor, we nonetheless find that his constitutional right to a speedy trial was not violated since there is no evidence that his case was prejudiced in any way by the delay in bringing him to trial, a factor that weighs heavily in the State’s favor.

b. Statutory Right

¶ 22. McCain also asserts that his statutory right to a speedy trial- was violated. Section 99-17-1 of the Mississippi Code Annotated (Rev.2007), states that criminal cases should be tried within 270 days after a defendant has been arraigned. “When the accused is not tried within 270 days of his arraignment, the State has the burden of establishing good cause for the delay since the accused is under no duty to bring himself to trial.” Jenkins v. State, 947 So.2d 270, 275 (¶ 9) (Miss.2006) (citing Herring v. State, 691 So.2d 948, 953 (Miss.1997); Perry v. State, 419 So.2d 194, 199 (Miss.1982)).

¶23. McCain was arraigned on May 9, 2008, and tried on September 14, 2009. Therefore, more than 270 days had passed between the time of his arraignment and trial. However, good cause exists for all but two months of the delay. One delay was caused by McCain’s agreement to a continuance, and the rest of the delays were apparently caused by the circuit court’s congested docket. Delays caused by factors such as a crowded court docket constitute good cause. Id. at 275-76 (¶ 10) (citing Herring, 691 So.2d at 953). Therefore, McCain’s statutory right to a speedy trial was not violated.

¶ 24. This contention of error is without merit.

3. Admission of Cap into Evidence

¶25. In his third contention of error, McCain complains about the entry into evidence of a Texas Longhorns cap, which was admitted as exhibit S-24. McCain contends that the cap was not properly authenticated in accordance with Rule 901 of the Mississippi Rules of Evidence because the chain of custody was not established. We review the circuit court’s decision to admit the cap into evidence under an abuse-of-discretion standard. Williams v. State, 35 So.3d 480, 488 (¶ 25) (Miss.2010).

¶ 26. The relevant portion of Rule 901 states: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The Mississippi Supreme Court has stated the following standard related to authentication of evidence and chain of custody:

Our precedent is clear that “Mississippi law has never required a proponent of evidence to produce every handler of evidence.” Ellis v. State, 934 So.2d 1000, 1005 [ (¶ 21) ] (Miss.2006). In order for the defendant to show a break in the chain of custody, there must be an “indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.” Spann v. State, 771 So.2d 883, 894 [ (¶ 26) ] (Miss. 2000). The defendant has the burden of proving tampering or substitution of the evidence, and “a mere suggestion that substitution could possibly have occurred does not meet the burden of showing probable substitution.” Ellis, 934 So.2d at 100 [6 (¶ 21) ].

Deeds v. State, 27 So.3d 1135, 1142 (¶ 20) (Miss.2009).

¶ 27. To be thorough, we quote at length from Investigator Kimble’s testimony when the State introduced the cap into evidence:

Q. I hand you this and ask if you can identify that?
A. Yes, sir. This is my evidentiary item No. 8 which is a bag that was taken of the [sic] Texas Longhorn[s] hat, baseball[-]type cap that was worn by the suspect.
Q. And whose handwriting is on that bag?
A. That’s my handwriting on the bag.
Q. Who recovered that item?
A. I recovered this item. Well, this item was actually recovered by the Simpson County jailer and the item was transferred over to my possession from there.
Q. Did you receive that from the Simpson County jailer?
A. Yes, sir, I did.
Q. Can you open that bag for us, please?
[DEFENSE ATTORNEY]: Your Hon- or, I would like to object. May we approach the bench?
[COURT]: Yes, sir.
(THE FOLLOWING PROCEEDINGS WERE HAD AND HEARD AT THE BENCH OUTSIDE THE HEARING OF THE JURY PANEL).
[DEFENSE ATTORNEY]: He’s testified that he received that out of the regular chain of custody. And he has nothing else to tie this to the Defendant. They need to explain to the jury how they received this.
[COURT]: Tell me a little bit more on how he got this and where he got it from.
[PROSECUTOR]: Once he searched the home he went back to the Sharkey [sic] County Sheriff’s] Department where Mr. Kevin McCain—
[COURT]: Mendenhall?
[PROSECUTOR]: I mean, yeah, I’m sorry, Simpson County Sheriff[’s] Department. Mr. McCain had been arrested earlier at the time he had attempted to come and get his vehicle back. Ms. McNair testified yesterday that he was still wearing that same baseball cap on the morning that he came back to get his vehicle. So we have that officer saying that when he appeared he had the—
[COURT]: I’m trying to get how Men-denhall got it.
[PROSECUTOR]: He was arrested.
[COURT]: He was under arrest at that time?
[PROSECUTOR]: Yeah, they arrested him when he came back to pick the vehicle up. So he was arrested based upon—
[COURT]: Well, I need a little bit more. I need some predicate from him on how he got it and where did he get it from.
(THE FOLLOWING PROCEEDINGS WERE HAD AND HEARD IN OPEN COURT WITHIN THE HEARING OF THE JURY PANEL).
Q. Lets [sic] go back for a second. How did you become aware that the suspect of the Trustmark National Bank had been found in Simpson County?
A. A call was made to Lieutenant Robert Stewart as Chief of Investigations by Mr. Barlow[,] the Chief of Simpson County, Mendenhall PD. Officer McNair, Rita McNair, made a traffic stop for a traffic violation of Mr. McCain and once she called back and made contact with Lieutenant Stewartf,] it was advised that the suspect that was listed by the media as being the bank robber was wearing the same items—
[DEFENSE ATTORNEY]: Objections [sic], Your Honor, it sounds like hearsay.
[COURT]: Overruled.
A. [ — ] Was wearing the same items that [sic] when I arrested him that the photo was shown from the media.
Q. Were you aware of where the Defendant was when you arrived in Simpson County the next morning?
A. Not his exact location. My understanding was that he had been released and hew as [sic] to come back to pick up the vehicle once the towing service was open.
Q. Based upon your investigation[,] were you aware of what happened when he came back to pick up the vehicle?
A. Yes, sir, he was placed in custody by Chief Barlow and Rita McNair.
Q. And were you aware of where he remained until he was brought back to Vicksburg?
A. Yes, sir, he was incarcerated in Simpson County.
Q. Now, who, if anyone, did you talk with about the personal items that Mr. McCain had on him at the time of his arrest when you arrived at Simpson County, Mississippi?
[DEFENSE ATTORNEY]: Objection, Your Honor, hearsay.
[COURT]: Overruled.
A. That would have been the officer that made the initial arrest, Rita McNair, as well as Lieutenant Robert Stewart. We were all there together.
Q. And after you searched the home of Mr. McCain, what did you do next?
A. After obtaining items of evidenee[,] which were the boots and the actual windbreaker[-]type jacket[,] we returned back to Simpson County Jail from Pedal [sic] to interview Mr. McCain or to pick him up and take him back to Vicksburg.
Q. Did you acquire any items that were being held of Mr. McCain’s at the time that you acquired Mr. McCain to take him back to Vicksburg?
A. Yes, sir, I did. And those were his personal possessions^] which included a Texas Longhorn, orange in color, baseball[-]type cap. I think a black wallet and all of his personal possessions that he had turned into the—
Q. And from where did you receive those?
A. From the Simpson County [J]ail.
Q. And I’ll ask you again can you identify those—
[DEFENSE ATTORNEY]: Your Hon- or [,] I’m going to renew by [sic] objection.
[COURT]: Well, let me see what he says is in that bag first.
[DEFENSE ATTORNEY]: Well, Your Honor, I object to have [sic] anything put before the jury at this point and time until the chain of custody has been established.
[COURT]: Well, I don’t know what he said he retrieved. I don’t know what is in that bag, that is what I’m saying.
[DEFENSE ATTORNEY]: Then I would ask for a hearing outside the presence of the jury then to have that brought forth.
[COURT]: Well, I think you made your motion[,] and I ruled that your objection is overruled as to the chain of custody at this point.
Q. And can you identify what is in that bag?
A. Yes, sir. It is an orange in color Texas Longhorn[s] logo baseball cap.
Q. And where did you obtain that?
A. From the Simpson County Jail.
[DEFENSE ATTORNEY]: Your Hon- or, I object. It did not come from the Defendant.
[COURT]: Well, I understand your objection[,] and I have ruled that-come from who?
[DEFENSE ATTORNEY]: The Defendant.
[COURT]: Overruled.
Q. Can you open that, please, sir?
(WITNESS OPENS BAG).
Q. Can you identify what was in that package?
A. Yes, sir. It’s a[sic] orange in color Texas Longhorn[s] logo baseball cap.
Q. And did you personally recover that from the Simpson County lockup?
A. Yes, sir.
Q. And what other items did you recover at the time you recovered that hat?
A. I think it was a black wallet[,] and I have to look at my notes.
(WITNESS CHECKS HIS NOTES).
A. I stand corrected. This was the only item that actually I recovered. The wallet was actually recovered from the passenger seat. I stand corrected on that.
Q. All right.
[PROSECUTOR]: Your Honor, we would ask that this be marked as an exhibit to the witnesses] testimony.
[COURT]: The same objection?
[DEFENSE ATTORNEY]: Yes, Your Honor.
[COURT]: It will be marked as Exhibit No. 24.

¶ 28. Under the deference with which we treat the circuit court’s decision, we find that there was a sufficient basis for the admission of the cap into evidence. Officer Kimble testified that he retrieved the cap directly from the Simpson County Jail at the same time he took McCain from the jail. Officer McNair testified that McCain was wearing the cap when he was arrested at the impound lot. The circuit court did not abuse its discretion in admitting the cap into evidence.

¶ 29. Furthermore, even if the circuit court had erred in admitting the cap into evidence, that error would be harmless at worst, as there is overwhelming evidence of McCain’s guilt. See Clark v. State, 891 So.2d 186, 142 (¶ 30) (Miss.2004). That evidence includes an eyewitness identification and the discovery of the demand note in McCain’s vehicle. The jury also viewed video footage of the bank robbery and had the opportunity to observe McCain in court.

Jp. Indictment

¶ 30. In his final contention of error, McCain argues that the circuit court erred when it declined to quash his indictment. McCain’s specific contention is that his indictment “was not stamped ‘filed’ as required by Section 99-7-9.”

¶ 31. Although McCain filed a pro se motion challenging his indictment, that motion did not explicitly raise the issue of whether “filed” was stamped on his indictment. Rather, the motion stated, among other things:

That this Court entered an order on Dec[.] 12, 2008[,] to reflect the date of the indictment to Jan[.] 30, 2008.... That the indictment prior to amendment was invalid in that it was not properly filed by the circuit clerk of Warren Co. and that this Court was not within its jurisdiction to amend said indictment.

However, the circuit court and the State interpreted this motion as an attack on the indictment for failing to contain the word “filed.” McCain did not file his motion prior to trial; rather, the motion was filed on September 15, 2009, after his trial had begun on September 14, 2009.

¶ 32. The placement, or lack thereof, of “filed” on the indictment is undoubtedly an error of form, not substance. See Jones v. State, 356 So.2d 1182, 1184 (Miss.1978). And because that error occurred on the face of the indictment, McCain was required to lodge an objection to the indictment prior to the commencement of his trial. Miss.Code Ann. § 99-7-21 (Rev. 2007). Therefore, McCain did not raise the issue timely, and this contention of error is procedurally barred.

¶ 33. Procedural bar notwithstanding, the presence of “filed” on the indictment was a matter of form. As the circuit court noted, the indictment was presented to a grand jury and later provided to McCain. There is no doubt that McCain was informed of the nature of the charges against him. Therefore, a procedural error on the indictment is an insufficient reason to reverse his conviction, which is in accord with the overwhelming weight of the evidence at trial.

¶ 34. This contention of error is also without merit.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY OF CONVICTION OF ROBBERY 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 WARREN COUNTY.

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


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Kenneth Dewayne HUNT, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00902-COA.
    Court of Appeals of Mississippi.
    April 12, 2011.
    Rehearing Denied Dec. 13, 2011.
    Certiorari Denied March 8, 2012.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. Kenneth Dewayne Hunt was convicted in the Lowndes County Circuit Court on May 18, 2010, of statutory rape. Hunt was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Hunt appeals, arguing that: (1) a witness for the State improperly testified about Hunt’s post-arrest silence; (2) a witness for the State improperly testified about a youth court adjudication of the victim; and (3) the jury’s verdict is against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In October 2007, a Lowndes County Department of Human Services (DHS) social worker responded to a call concerning two girls, J.B., fifteen years old, and her older sister S.B., sixteen years old. Both girls lived with their mother in a trailer outside Columbus, Mississippi.

¶ 3. In 2003, J.B., S.B., their mother, and Hunt lived in Kansas. With the mother’s consent, Hunt began sleeping with J.B., who was eleven years old at the time. Hunt began molesting J.B. shortly thereafter. Throughout moves to Florida, Texas, and eventually Mississippi, Hunt continued to molest J.B., forced her to perform fellatio, and eventually forced her to engage in sexual intercourse. S.B. knew Hunt was sexually abusing J.B., and while the mother did not testify at trial, J.B. testified that she told her mother of the abuse, but her mother did nothing to stop it. Additionally, J.B. was never enrolled in school after the second grade. In 2003, they all moved to Columbus, Mississippi, where they resided until Hunt moved to Louisiana in 2006. Hunt raped J.B. throughout these three years.

¶ 4. After interviewing J.B., Lowndes County Sheriffs Department Investigator Ryan Rickert contacted law enforcement in Denham Springs, Louisiana, in an initially unsuccessful attempt to locate Hunt. Hunt was apprehended sometime in 2009. After a two-day trial on May 17 and 18, 2010, the jury found Hunt guilty of statutory rape. At the trial, both J.B. and S.B. testified, and at that time, they were respectively eighteen and twenty years old. Hunt was fifty-five years old at the time of trial. The circuit court sentenced Hunt to twenty-five years in the custody of the MDOC.

DISCUSSION

I. Post>-Trial Motions

¶ 5. The record contains an order denying the motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. However, the order is the usual summary denial, and it does not detail the specific grounds that Hunt raised. The record does not contain a motion for a new trial or a JNOV, nor does the transcript show that such a motion was made before the circuit court ore tenus. “It is elementary that a party seeking reversal of the judgment of a trial court must present this court with a record adequate to show that an error of reversible proportions has been committed and that the point has been procedurally preserved.” Hansen v. State, 592 So.2d 114, 127 (Miss.1991) (citation omitted). The presence of an order denying a motion for a new trial or a JNOV does not permit an appellate court to assume that issues here raised on appeal were enumerated in a motion that does not appear in the record. “This Court cannot assign error to actions not made a part of the record.” Qualls v. State, 947 So.2d 365, 370 (¶ 12) (Miss.Ct.App.2007). “It is the responsibility of the appellant to designate the record pursuant to Rule 10(b) of the Mississippi Rules of Appellate Procedure in a manner sufficient to allow this Court to review the appellant’s issues.” Walker v. State, 49 So.3d 658, 659 (¶ 6) (Miss.Ct.App.2010) (citing Austin v. State, 971 So.2d 1286, 1287 n. 1 (Miss.Ct.App.2008)). An appellate court cannot find error unless the issue was raised before the trial court. Id. (¶ 7).

¶ 6. We have no choice but to find that the issues raised in this appeal on the merits are not properly before this Court; therefore, the issues were waived by the failure to present this Court with the substance of the motion for new trial or a JNOV.

II. Hunt’s Post-Arrest Silence

¶ 7. Hunt argues that the circuit court erred in denying his request for a mistrial after a witness for the State testified to Hunt’s post-arrest, pre-Miranda silence. The objectionable testimony occurred during the State’s direct examination of Investigator Rickert. Investigator Rickert testified that Hunt did not give him a statement while being processed after Hunt’s arrest.

¶ 8. The Fifth Amendment to the United States Constitution provides: “No person ... shall be compelled in any criminal case to be a witness against himself.” The Fourteenth Amendment incorporates this right to the states. Chamberlin v. State, 989 So.2d 820, 332 (¶ 35) (Miss.2008). The applicable provision in the Mississippi Constitution provides that: “In all criminal prosecutions the accused ... shall not be compelled to give evidence against himself.” Miss. Const, art. 3, § 26. The United States Supreme Court has held that improper comments about a defendant’s silence may deprive a defendant of his right to due process. Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

¶ 9. Hunt argues that the State improperly used his post-arrest, pre-Mi-randa silence to support its case-in-chief against a non-testifying defendant. When a defendant chooses to testify, his post-arrest, pr e-Miranda silence can be admissible for impeachment purposes, but when a defendant invokes his right to not testify, such silence is not admissible to create an inference of guilt. McGrone v. State, 807 So.2d 1232, 1235 (¶ 10) (Miss.2002). During the testimony of Investigator Rickert, the State asked whether Hunt had made any statements after he was arrested. Investigator Rickert answered that Hunt did not. The record reflects that the witness’s testimony with regard to Hunt’s silence was brief, consisting only of the word “no,” and the State immediately tendered the witness. Defense counsel did not object and move for a mistrial until after cross-examining Investigator Rickert. The testimony was as follows:

Q. Did you ever get to meet with the defendant?
A. He was apprehended sometime in 2009. I spoke with him briefly while I was trying to process him.
Q. Did he give a statement?
A. No.
BY MR. JACKSON: Tender the witness, Your Honor.
BY THE COURT: Any questions?
BY MR. GOODWIN: Yes, Your Honor.

¶ 10. In this case, Hunt did not raise a contemporaneous objection, and he requested a mistrial only after cross-examining the witness. In the absence of a contemporaneous objection from defense counsel, there is no ground for a mistrial. “It is incumbent on the party asserting error to make a contemporaneous objection and obtain a ruling in order to preserve the objection.” Brown v. State, 965 So.2d 1023, 1029 (¶ 24) (Miss.2007) (citing Billiot v. State, 454 So.2d 445, 456 (Miss.1984)). The circuit court found that the circumstances were “fairly innocuous” and unlikely to create prejudice against Hunt. As a result, the circuit court overruled the motion and offered a curative instruction, which defense counsel declined in favor of re-asserting his request for a mistrial.

¶ 11. The decision of “[wjhether to declare a mistrial is committed to the sound discretion of the trial court.” Brent v. State, 632 So.2d 936, 941 (Miss.1994); see also Bass v. State, 597 So.2d 182, 191 (Miss.1992). It is of course impermissible for the State to comment upon a defendant’s choice to remain silent. Doyle, 426 U.S. at 618, 96 S.Ct. 2240; Robinson v. State, 40 So.3d 570, 574 (¶14) (Miss.Ct.App.2009). Nevertheless, the United States Supreme Court has also held that any error in permitting a prosecutor to comment on the defendant’s right to remain silent is subject to harmless-error review. Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The proper inquiry turns on whether, absent the improper statements, it is clear beyond a reasonable doubt that the jury would still have found the defendant guilty. Id. (citing Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). In this case, J.B., who was eighteen years old at the time of trial, provided clear, consistent, and graphic testimony as to the long-term sexual abuse she suffered at the hands of Hunt. S.B., who was twenty years old at the time of trial, testified she witnessed Hunt having sexual intercourse with J.B. And while Hunt had no duty to present any evidence tending to show his innocence, the record shows that the defense did not call any witness to contradict the evidence put forth by the State.

¶ 12. Based on the overwhelming evidence of Hunt’s guilt, we find that the testimony of Investigator Rickert is harmless error, even if it had not been waived by the failure to include in the record the specific issues raised in a motion for a new trial or a JNOV, as well as the failure to offer a contemporaneous objection to Investigator Rickert’s testimony. There is no merit to this issue.

III. Youth Court Adjudication

¶ 13. Hunt argues that it was improper and prejudicial for the jury to hear that J.B. and S.B. had been adjudicated to be abused children in a youth court proceeding. “[T]he Youth Court Act prohibits use of an adjudication of the Youth Court for impeachment purposes in any court.” Evans v. State, 422 So.2d 737, 745 (Miss. 1982). See Miss.Code Ann. § 43-21-101 (Rev.2009) et seq.

¶ 14. In this case, the State called a social worker to testify about the course of events to explain how the abuse was discovered and how the criminal investigation commenced. The State asked the social worker: “After the investigation was complete, what happened to the girls?” The social worker responded: “They were — we had a hearing, and they were adjudicated to be abused children.” Hunt raised a contemporaneous objection. The circuit court sustained the objection and instructed the jury to disregard the testimony.

¶ 15. “Absent unusual circumstances, where objection is sustained to improper questioning or testimony, and the jury is admonished to disregard the question or testimony, we will not find error.” Wright v. State, 540 So.2d 1, 4 (Miss.1989). When an objection is sustained and a jury is instructed to disregard the objectionable testimony, no prejudicial error results. Pearson v. State, 790 So.2d 879, 880 (¶ 6) (Miss.Ct.App.2001). It is presumed that juries follow the instructions of the trial court. Washington v. State, 957 So.2d 426, 429 (¶ 16) (Miss.Ct.App.2007) (citing Edwards v. State, 737 So.2d 275, 319 (¶ 159) (Miss.1999)). Therefore, while the testimony was improper, the circuit court correctly sustained the objection and offered a curative instruction. As such, there was no error. Furthermore, there is an irony to Hunt’s seeking a reversal of his conviction on this issue, because during cross-examination of S.B., who testified just prior to the social worker, Hunt’s attorney himself ventured into this improper territory. Hunt’s attorney attempted to impeach S.B.’s motives for reporting the statutory rape to DHS because she wanted to be separated from her mother. The following question was asked:

Q: Ma’am, you would agree with me that when you testified that you-or when you worked with the Department of Human Services and the sheriffs office and through the youth court system that you wanted to be separated from your mother.

Before S.B. could answer, the circuit judge summoned Hunt’s attorney to the bench and delivered a pointed rebuke and instructed him to avoid any further mention to any youth court proceeding.

¶ 16. This issue was waived by the failure to include in the record whether this issue was a basis for a motion for a new trial or a JNOV. Further, because the circuit court sustained the objection and instructed the jury to disregard, no error occurred. This issue is without merit.

IV. Weight of the Evidence

¶ 17. Hunt’s brief states that he raises the issue of the weight of the evidence, although in his actual discussion of the issue what he appears to be raising is sufficiency of the evidence. As such, we will discuss both issues.

18. Hunt argues that there was no testimony specifically indicating penetration as required by Mississippi Code Annotated section § 97-3-65(l)(b) (Supp.2010). Hunt contends that J.B.’s testimony that she had intercourse with Hunt is insufficient to satisfy this element because she failed to specify that sexual intercourse entailed penetration. Hunt also argues that there was no corroborating evidence or physical evidence indicating penetration. In determining if a verdict is supported by sufficient evidence, the standard of review is whether when the evidence is viewed 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. Ivy v. State, 949 So.2d 748, 751 (¶ 14) (Miss.2007). In this case, even if the issue was not waived by the failure to include in the record the issues raised in a motion for new trial or a JNOV, it is very clear that J.B.’s testimony established the element of penetration. Hunt’s argument is that the J.B.’s repeated testimony concerning being forced into having “sexual intercourse” with Hunt is insufficient because she did not expressly state “penetration” had occurred. Hunt’s trial counsel repeatedly used the term “sexual intercourse” as involving penetration. There is no ambiguity in this record. The verdict was supported by sufficient evidence.

¶ 19. In determining an issue of whether the weight of the evidence supports a verdict, the standard of review is that an appellate court will only disturb a verdict if the verdict is so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would sanction an unconscionable injustice. Id. at 753 (¶ 21). In this case, all of the evidence introduced pointed toward Hunt’s guilt. Therefore, even if the issue was not waived by the failure to include in the record the issues raised in a motion for new trial or a JNOV, the verdict is not against the weight of the evidence.

¶ 20. This issue was waived by the failure to include a copy of the post-trial motion and the post-trial issues raised in the circuit court. Further, even without waiver, this issue is without merit.

¶ 21. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE, PROBATION, OR EARLY RELEASE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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

      . Fictional names are used for the victim and her sister to protect their identities.


author: BARNES, J.,

text:
    Joshua MOORE, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00077-COA.
    Court of Appeals of Mississippi.
    July 26, 2011.
    Rehearing Denied Feb. 28, 2012.

      Benjamin A. Súber, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, Attorney for Appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. After a trial in the Marion County Circuit Court, a jury found Joshua Moore guilty of conspiracy to commit armed robbery, six counts of armed robbery, and manslaughter. Moore was sentenced to five years for the conspiracy charge, twenty years for each armed-robbery charges, and twenty years for the manslaughter charge, all in the custody of the Mississippi Department of Corrections (MDOC), with the conspiracy, one armed-robbery count, and manslaughter charge to run consecutively to each other, and the other charges to run concurrently with the one armed-robbery count for a total of forty-five years to serve. Moore now appeals, arguing that the trial court should have declared a mistrial on two occasions: when the court discovered that two admitted exhibits were not given to the jury during deliberations, and when the prosecution elicited hearsay testimony regarding what the decedent stated after being shot. Additionally, Moore argues that the evidence is insufficient to support a conviction for the armed robbery of Ernest Ratliff. Finding no reversible error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. On the evening of March 18, 2007, Leon Andrews had approximately twelve individuals at his home to shoot dice in Columbia, Mississippi. The gamblers were in the game room, which was a separate building from Andrews’s house. At approximately 10:15 p.m., two men with dark stockings over their heads burst into the game room. One of the men said “stop playing,” raised a gun, and fired it. Everyone was ordered to get on the floor. The two men demanded everyone’s money or they would kill someone. The gamblers put their money on or near a pool table in the room. At least two other shots were fired during the robbery. Before leaving, the two robbers forced the gamblers to remove their clothes. Once the robbers left, most of the gamblers quickly exited the game room, leaving through the window or door. At some point during the robbery, Flowers was shot; later he was pronounced dead at the hospital. Several individuals at the dice game identified the two robbers as Moore and Carlos Varnado.

¶ 3. Law-enforcement investigators located the two suspects. Search warrants were secured for Moore’s residence, where Moore and Varnado had been prior to their arrest. A .22 revolver, a .40-caliber pistol, clothing items, and a black hose-type head covering were recovered from the residence. Later, a second search warrant was issued for the same address, where a .380 pistol, which was located buried in the yard, was recovered. The investigators also found in the woods nearby some clothing that had been taken during the robbery and Andrews’s cellular telephone.

¶4. At trial, several individuals at the dice game testified for the State. Andrews testified that one of the two robbers was heavy-set and wore a brown stocking over his head. He had a small non-black handgun, which he shot three times. One of the men also took a little cash and Andrews’s cellular telephone when it started ringing during the robbery. After the incident had occurred and all the gamblers left the game room, Andrews went right back into the building and saw Flowers lying on the floor; Flowers’s brother, David Holmes, was holding Flowers. Andrews, however, could not say who had shot Flowers. Andrews also testified that after the robbers left the game room, he heard another individual “out there shooting” several times.

¶ 5. Brandon Grindle testified he could identify the robbers as Moore and Varna-do. Grindle claimed he recognized Moore from his size, and he could see through the brown stocking that Moore wore over his face. He also recognized Moore’s braids in his hair, and Moore’s accent was different than a Marion County accent. During the robbery, both robbers were aggressive, with Moore more aggressive than Varna-do; however, Varnado fired the first shot. Moore had a chrome .380 handgun, and Varnado had an automatic revolver. Grin-dle claimed they ordered everybody to “get down,” took their money, and then acted as if they were going to leave while constantly firing shots. Then they ordered every one to remove their clothing. Grindle noted that Chris Thompson, or “Black,” who was at the dice game, never took off his clothes or put any money on the pool table. Grindle did not know Flowers was shot until “it was all said and done”; then he heard Flowers say he had been shot. Grindle testified that after the robbers left and as the gamblers were exiting the building, an individual named Steven Buckley fired several shots.

¶ 6. Ratliff could also identify the robbers as Moore and Varnado, because he could see their faces through the stockings. Moore was heavy-set. He testified that the robbers did not make any threats while they were in the building, only “trash talking.” He claims three shots were fired during the robbery. He noted that nothing was taken from him, because he had lost all his money in the dice game. Ratliff testified that after he escaped through a window, he heard Holmes “hollering about his brother being shot”; so he and a few of the gamblers went back in to the game room to investigate the situation until law enforcement arrived.

¶ 7. During Holmes’s direct examination by the State, he testified that during the incident, but after several shots had been fired and everybody had gotten down on the floor, Flowers told him: “One of those boys just shot me.” Defense counsel promptly moved for a mistrial because the deceased Flowers could not be cross-examined. The trial judge denied the motion.

¶ 8. Dr. Steven Hayne testified for the State as an expert in forensic pathology. During Flowers’s autopsy, one bullet was recovered from his right chest cavity. There was one entry point for the gunshot wound in the left flank and no exit point. No powder residue was found on the wound track itself, which would indicate this was not a contact gunshot wound. The bullet traveled through Flowers’s stomach, diaphragm, left lung, and heart. The bullet was recovered from Flowers’s right lung. Dr. Hayne estimated Flowers probably would have lived a few minutes after having been shot, but his death would have been relatively quick. Flowers bled to death internally, with one-half of his blood found in different cavities of his body. Additionally, a photograph of Flowers’s head, which was taken before the autopsy, was entered into evidence (Exhibit 28), over the defense counsel’s objection, during Dr. Hayne’s testimony.

¶ 9. Carl Fullilove with the Mississippi Crime Laboratory was qualified as an expert for the State in the areas of firearms and tool-mark identification. He performed tests and comparisons on the three .380-shell casings that were collected from the game room floor and the .380 handgun which was found buried under a tree at Moore’s residence. Fullilove could neither confirm nor deny that the shell casings were fired by the .380 handgun which was recovered. However, Fullilove compared the projectile recovered from Flowers’s body with the .380 handgun and concluded that the projectile was fired by the .380 handgun found at Moore’s residence.

¶ 10. An eighteen-minute-long videotaped interview of Moore, taken on March 19, 2007, by law enforcement, was also entered into evidence. Moore is shown wearing braids and beads in his hair during the interview. Moore stated that the entire robbery was Black’s idea. He stated he fired his gun three times, but he did not admit that he had shot Flowers. He claimed he fired twice at the ceiling, and he fired a third time as he was running out of the building after the robbery, fleeing the premises. However, he was not sure where the third shot landed. He was unaware anyone had been shot until Black later told him. He also admitted that after the incident, he buried his gun under a tree upon returning to his residence.

¶ 11. After the State had rested its case-in-chief, a document was entered into evidence (Exhibit 31) by way of an agreement between the prosecution and the defense. It was a written statement by Investigator Anne Mitchell with the Marion County Sheriffs Department stating that she had received an anonymous call on February 1, 2008. The statement reads as follows:

I[,] Anne Mitchell[,] received a call from a black male stating he wanted to report a murder. Caller stated that he could not give his name or phone number and could not meet me anywhere to talk for fear of his own life. He stated to me that the victim was Lorenzo Flowers and the murder happened March 18, 2007. He then told me that “Munt” is the one that shot Flowers but does not know his real name. He stated that “Munt” is Flowers oldest brother. He then told me he couldn’t talk but would call me back, then hung up.

This statement was the only piece of evidence admitted during the defense’s casein-chief. The statement was referred to by both the State and the defense during their closing arguments.

¶ 12. The jury found Moore guilty of one count of conspiracy to commit armed robbery and six counts of armed robbery. While Moore had been indicted for capital murder, the jury found him guilty only of manslaughter, a lesser-included offense of capital murder. The jury could not unanimously agree to a sentence of life for the counts of armed robbery.

¶ 13. After the jury was dismissed and had vacated the courtroom, it came to the attention of the trial court that two exhibits (out of a total of thirty-one exhibits) had not been sent to the jury room for the jury’s consideration: Exhibits 28 and 31— the photograph of the decedent and the statement by Investigator Mitchell, respectively. The trial court, noting that the jury had not ever requested these two exhibits, stated that the error would not have altered the verdict; thus, it was ruled harmless error. Defense counsel objected and moved for a mistrial. After Moore was found guilty, his motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, claimed that the omission of Exhibit 31 from the jury’s deliberations was highly prejudicial to his defense; therefore, he should receive a new trial. The trial court denied the motion, and Moore timely appealed.

ANALYSIS

1. Trial Exhibits

¶ 14. Moore argues that the trial court erred in not declaring a mistrial when it was discovered that during deliberations, the jury had not been provided two exhibits — the photograph of the decedent Flowers (Exhibit 28) and the statement by Investigator Mitchell (Exhibit 31) — both of which had been admitted into evidence. Moore claims he was prejudiced, and the trial court’s error resulted in a defective verdict; therefore, he is entitled to a new trial.

¶ 15. Mississippi statutory law and court rules address exhibits and jury deliberations. Mississippi Code Annotated section 99-17-37 (Rev.2007) provides that “[a]ll papers read in evidence ... may be carried from the bar by the jury.” Likewise, Rule 3.10 of the Uniform Rules of Circuit and County Court states: “The court shall permit the jury, upon retiring for deliberation, to take to the jury room the instructions and exhibits and writings which have been received in evidence.... ” Rule 3.10 has been held “within reason, mandatory.” Pettit v. State, 569 So.2d 678, 680 (Miss.1990). However, on appeal an error of this sort may be deemed harmless, as in Pettit and Williams v. State, 40 So.3d 630 (Miss.Ct.App.2010).

¶ 16. In Pettit, the trial court did not allow the jury to take the State’s exhibit, a tape recording of a drug transaction, back to the jury room during deliberations. However, the error was found harmless because the exhibit was of poor quality, and the jury had already heard it once in its entirety and parts of the tape a second time. Pettit, 569 So.2d at 680.

¶ 17. During deliberations in Williams, the jury sent the trial judge a note requesting the photographic “six-pack” lineup that had included the defendant and which had been entered into evidence. Williams, 40 So.3d at 635 (¶ 19). The victim had identified her attacker from this lineup after the attacker had been arrested on an unrelated charge several months after her attack. Id. at 633 (¶ 7). The trial judge informed the State and the defense that he had sent the jury two exhibits with a note attached stating that the exhibits should have been sent to them. Neither party objected until a post-trial hearing, when it was discussed that the trial judge never sent to the jury a side-profile photograph of the defendant, which should have been with the six-pack photographic lineup. Id. at 635 (¶ 19). The victim had initially identified the defendant shortly after the attack by this side-profile photograph, which was in a database. Id. at 638 (¶ 7). The defendant argued the omission was reversible error, but this Court disagreed, finding the error harmless. Id. at 635-36 (¶¶ 19-20).

¶ 18. Here, there is no dispute that the failure to transfer the two exhibits from the courtroom to the jury-deliberation room was inadvertent, as in Williams, and that the jury was not able to consider them during its deliberations. Because the photograph of the decedent Flowers was entered into evidence for the identification of Flowers during the forensic pathologist’s testimony, we find this exclusion harmless error. It did not prejudice Moore’s defense.

¶ 19. The inadvertent exclusion to the jury deliberations of the statement by Investigator Mitchell is harmless as well. The substance of the statement was that Investigator Mitchell had received a call from an anonymous source indicating that Moore did not shoot the decedent; rather, “Munt” did. While the statement is hearsay, it was entered by way of an agreement between the State and the defense after the State had rested its case-in-chief. The State stipulated that if Investigator Mitchell were to testify, she would say what was contained in the exhibit. However, the State stressed it was not stipulating that the contents of the report were valid. The defense explained that they were admitting the document “[f]or what it’s worth.” During closing arguments, both the State and the defense referred to the statement and its contents. The prosecutor stated:

There is a statement in here from Anne Mitchell, who is a detective. It has no relevance to the case. It’s connected somewhat. The statement says, on this certain day, I got an anonymous phone call. An anonymous phone call? We’re letting evidence come in about an anonymous phone call? The guy said, I can’t come in and tell you, because I might get killed over it. It wasn’t Joshua Moore. It was Munt. Munt is a nickname for David Holmes. And that’s in evidence, because the defense wanted it in evidence.

Defense counsel responded:

[The prosecutor] brought up a piece of evidence that was tendered in the investigative part of this written by a lady named Anne Mitchell. At least it was signed by her. And it says that she got an anonymous call from a man in February of 2008 ... that someone else was involved in this shooting....
Now, I will readily admit they don’t say that — I believe that [the prosecutor] said Munt. They don’t say that he intentionally shot him. I wasn’t there. I don’t know. I’d like to know. He can’t help it if it’s an accident, okay? But somebody should have followed up on that ... somebody should have gone to Mr. Holmes .... and said ... we all understand that in the fray if something happens. We understand, but somebody should have done that a year and seven months ago, or however long it’s been; they didn’t.
I’m not going to read the letter to you, but the document speaks for itself, okay? And nobody is accusing Mr. Holmes of anything, but somebody should have followed up and said, hey, it was an accident or whatever happened. We needed that question answered.

(Emphasis added). Based upon Pettit, Williams, and strength of the prosecution’s case, we find it harmless error for Investigator Mitchell’s statement to be inadvertently excluded from jury deliberations. The .380 handgun buried in Moore’s yard was undisputably his, and the evidence proved the bullet, which was retrieved from Flowers’s body, was fired from the .380 handgun found in Moore’s yard. The defense offered no explanation of how, if “Munt” killed Flowers as stated by the anonymous caller, “Munt” did it with the gun Moore admitted he had buried under the tree in his own yard. Defense counsel did not even argue at trial that the anonymous caller’s information was a truthful statement, but merely that it should have been investigated. Obviously, this statement was considered very weak evidence by the defense. Thus, Moore’s defense cannot be considered prejudiced by the inadvertent exclusion of this statement from the jury-deliberation room. Its exclusion was harmless error. This issue does not merit reversal.

2. Dying Declaration

¶ 20. Moore argues that the trial court erroneously denied his motion for a mistrial after the State elicited hearsay testimony from Holmes. We note the defense did not specifically object to the statement as hearsay until this appeal. During Holmes’s direct examination, when he was testifying as to what occurred during the armed robbery, he stated that everybody got down on the floor, and Flowers told him “[o]ne of those boys just shot me.” Defense counsel promptly moved for a mistrial because he could not cross-examine the victim to determine which “boy”— Moore or Varnado — had shot the victim; thus, he argued the statement was highly prejudicial to Moore. The trial judge denied the motion for a mistrial and allowed the hearsay statement as a dying declaration by the victim.

¶ 21. The standard of review for the admission of testimonial evidence is an abuse of discretion, and such admissions are left to the sound discretion of the trial judge. Any error warrants reversal only when the abuse of discretion prejudices the accused. Trotter v. State, 9 So.3d 402, 407 (¶ 9) (Miss.Ct.App.2008). Dying declarations are an exception to the exclusion of hearsay statements under Mississippi Rule of Evidence 804(b)(2). Such a declaration is defined as “a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.” M.R.E. 804(b)(2). The statement is considered a dying declaration if: “1. The wounded person is in ex-tremis and dies after making the statement, 2. The person realizes that he is mortally wounded, and 3. He has no hope of recovery.” Trotter, 9 So.3d at 407 (¶ 9) (citing Watts v. State, 492 So.2d 1281, 1287 (Miss.1986)).

¶ 22. The case at hand is very similar to Trotter, where this Court found no error with the trial court’s admission of hearsay testimony into evidence as a dying declaration. Id. at (¶ 11). In Trotter, a law-enforcement officer was allowed to testify that, upon finding the victim shot in a doorway, the victim told him the defendant had shot him. Id. at (¶ 9). This Court stated that in this situation it could be inferred the victim knew he was dying. Id. at (¶ 11). “[K]nowledge of impending death may be inferred from the nature and extent of the wound inflicted upon the victim” without any expressed declaration of the victim to show “he was sensible of impending death.” Id. at (¶ 11) (citing Watts, 492 So.2d at 1287-88).

¶ 23. Here, as in Trotter, it can be inferred from the situation that at the time Flowers made the statement to Holmes, Flowers knew of his impending death and had no hope of recovery even if he did not specifically declare it. As Dr. Hayne testified, Flowers had been shot through the heart, and the bullet was lodged in his lung cavity. He was profusely bleeding internally, and while he might not have passed away immediately after being shot, he did shortly thereafter. One of the officers that first responded to the dispatch call stated Flowers was lying on his back on the floor in the game room, and he did not appear conscious. Another officer testified that Flowers was pronounced dead upon his arrival at the hospital. We find because of the circumstances surrounding Flowers’s shooting, the trial court did not err in admitting Holmes’s testimony about Flowers’s dying declaration.

3. Sufficiency of the Evidence of the Armed Robbery of Ratliff

¶ 24. Moore argues that there was insufficient evidence to support a conviction for the armed robbery of Ratliff because the evidence shows nothing was taken from Ratliff. Thus, Moore claims the trial court erred in denying his motion for a directed verdict or JNOV.

¶ 25. A motion for a directed verdict and JNOV challenges the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). The critical inquiry “is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). If the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” this Court must reverse and render. Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss. 1985)). However, if the evidence is such that, “ ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient.” Id.

¶ 26. Mississippi Code Annotated section 97-3-79 (Rev.2006) provides the elements of armed robbery:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery....

(Emphasis added). Moore claims that because Ratliff claimed he was not robbed of anything and no threats were made by the robbers, Moore cannot be guilty of the armed robbery of Ratliff. We disagree.

¶ 27. At trial, Ratliff testified that two armed, masked men, whom he identified as Moore and Varnado, kicked in the door to the game room. They hollered and ordered everyone on the floor while firing a firearm once into the air. Ratliff acknowledged that Moore and Varnado were serious about robbing the men in the room and then proceeded to take their money. While Ratliff did not lose any money to the robbers because he did not have any at that time, already having lost all of his money in the dice game, he admitted that Moore and Varnado had attempted to rob him and he was “scared for his life.”

¶ 28. Because the evidence shows Moore attempted to take the property of Ratliff in a violent matter against his will, there is sufficient evidence of guilt of armed robbery. A rational trier of fact could find the essential elements of armed robbery were met beyond a reasonable doubt. This issue is without merit.

CONCLUSION

¶ 29. Because Moore was not prejudiced by the inadvertent exclusion of two exhibits from the jury deliberations, the error was harmless. It can be inferred from the situation surrounding Flowers’s shooting that he knew of his impending death when he made the statement to Holmes that one of the two robbers had shot him; thus, the admission of this hearsay statement under the dying declaration exception of Rule 804(b)(2) was not error. Finally, there was sufficient evidence of guilt for the armed robbery of Ratliff. Finding no reversible error, we affirm Moore’s convictions and sentences.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY OF CONVICTION OF COUNT I, CONSPIRACY TO COMMIT ARMED ROBBERY, AND SENTENCE OF FIVE YEARS; COUNTS II, III, IV, V, VI, AND VII, ARMED ROBBERY, AND SENTENCE OF TWENTY YEARS FOR EACH COUNT; AND COUNT VIII, MANSLAUGHTER, AND SENTENCE OF TWENTY YEARS, WITH THE SENTENCES IN COUNTS I, II, AND VIII TO RUN CONSECUTIVELY, AND WITH THE SENTENCES IN COUNTS III, IV, V, VI, AND VII TO RUN CONCURRENTLY WITH COUNT II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A $1,000 FINE, HIS PART OF $6,725 IN RESTITUTION, AND HIS PART OF A $4,500 FEE TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, ROBERTS, CARLTON AND RUSSELL, JJ„ CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT.

      . Testimony at trial established "Munt” is David Holmes’s nickname.

      . Earlier in his testimony Holmes had identified Moore and Varnado as the men who kicked in the door of the game room.


author: GRIFFIS, P.J.,

text:
    Janice STRIBLING, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01420-COA.
    Court of Appeals of Mississippi.
    Aug. 16, 2011.
    Rehearing Denied Dec. 18, 2011.
    Certiorari Denied March 8, 2012.

      Julie Ann Epps, Canton, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Janice Stribling was convicted in the Neshoba County Circuit Court of three counts of selling cocaine. On appeal, she argues that: (1) the trial judge erred when he allowed the State to play only parts of surreptitious video recordings of the cocaine sales for the jury instead of the entire recordings; (2) the trial judge erred when he refused to instruct the jury to take the testimony of a confidential informant with “great care and caution” and to “look upon it with distrust and suspicion”; (8) the State wrongfully tried her on a multi-count indictment for separate and distinct offenses; and (4) there was insufficient evidence to support her conviction or, alternatively, that the jury’s verdict is against the overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 2. In 2007, a confidential informant named Barry Battle worked with officers from the Mississippi Bureau of Narcotics (MBN) and the Neshoba County Sheriffs Office in a sting operation. Battle made three separate purchases of crack cocaine from Stribling in Philadelphia, Mississippi.

¶ 3. Officer James Gregory of the MBN testified that Battle received $100 for every purchase he made from a drug dealer. According to Battle, by the time he participated in the sting against Stribling, he had served as an informant for eleven years.

¶ 4. Officer Gregory testified that on January 18, 2007, he and Deputy Sheriff Grant Myers met with Battle in Philadelphia to arrange a drug purchase from Stri-bling. At the “pre-buy meeting,” pursuant to standard procedure, Officer Gregory and Deputy Myers searched Battle’s person and car to ensure that he did not already possess drugs. The purpose of such a search was to provide greater confidence that any drugs returned to them by Battle after the purchase were obtained from Stribling.

¶ 5. There was conflicting testimony about the thoroughness of the search. On cross-examination, Officer Gregory admitted that he did not search Battle’s underwear, shoes, socks, or bodily orifices. Also, when asked to list the parts of Battle’s car that were searched, Officer Gregory failed to mention the ash tray, and he further admitted that he did not search the car’s hubcaps. In contrast, Battle testified that: Officer Gregory did search his shoes and socks; he “felt of’ his underwear and orifices; and he did search the car’s ashtray. Battle confirmed that Officer Gregory did not search the car’s hubcaps.

¶ 6. Following the search, Officer Gregory and Deputy Myers equipped Battle with an audiovisual recording device so that the transaction could be recorded. They also equipped him with a live audio transmitter so that they could simultaneously monitor the events as they occurred. They then gave Battle money to make the purchase and sent him on the buy. Battle was alone in his car as he drove from the pre-buy meeting to the purchase site.

¶ 7. Officer Gregory testified that he and Deputy Myers followed Battle in their own car, but they could not get too close or they would jeopardize the operation and Battle’s safety. Officer Gregory admitted on cross-examination that he often lost sight of Battle while Battle was en route to the purchase site. Officer Gregory further admitted that, during the purchase, he and Deputy Myers were parked across the street and did not have a line of sight to the purchase location. Officer Gregory testified that the live audio feed was of poor quality and that it was often impossible to tell who was speaking or what was said.

¶ 8. The January 18th audiovisual recording starts at the pre-buy meeting just as Battle gets in his car to drive to the purchase site. During the drive, the camera is pointed toward Battle’s glove compartment. The viewer cannot see Battle. Various noises can be heard, including Battle’s car stereo, but none of the noises seem important or unusual. Battle arrives at the purchase site, which he later identified in his testimony as a mobile home at Southside Trailer Park in Philadelphia. A woman, who Battle later identified as Stri-bling, approaches the driver-side window of his car. She asks, “What you want?” Battle responds, “Oh, forty.” He then enters the mobile home where he stands around while Stribling goes into another room and shuts the door. She emerges a few moments later and puts three or four small objects on the kitchen counter. It appears that Battle then takes possession of the objects and hands Stribling cash. Battle then leaves the mobile home and meets with Officer Gregory and Deputy Myers.

¶ 9. Officer Gregory testified that Battle returned from the purchase site with what appeared to be three rocks of crack cocaine. The crime laboratory later confirmed that the rocks contained .81 gram of cocaine base.

¶ 10. According to Officer Gregory and Battle, this same procedure was followed on January 25, 2007, and on March 29, 2007. According to them, on both of those occasions, Battle purchased what appeared to be crack cocaine from Stribling.

¶ 11. The January 25th audiovisual recording starts as Battle leaves the pre-buy meeting. During the drive to the purchase site, the camera is pointed at Battle’s gearshift. The viewer cannot see Battle. All that can be heard are road noises and Battle’s car stereo. Battle arrives at the purchase site and enters a mobile home, which he later identified as the same mobile home from the January 18th purchase. He tells Stribling, “I need a four-zero.” She makes a phone call and then leaves the mobile home for a while. She returns a few moments later and places three or four small objects on the kitchen counter. It appears Battle takes possession of the objects and hands her cash.

¶ 12. The March 29th audiovisual recording starts as Battle leaves the pre-buy meeting. During the drive to the purchase site, the camera is again pointed at the car’s glove compartment, and nothing important is seen or heard. Battle meets with Stribling in a parking lot, which Battle later identified in his testimony as the parking lot for Hillcrest Apartments in Philadelphia. Battle stays in his car. Stribling approaches the passenger-side window. The camera swings wildly from side to side, and it is not clear what transpires in this recording, except it does appear that Battle hands Stribling cash toward the end of their conversation.

¶ 13. Officer Gregory testified that on January 25 and March 29, he and Battle met after the purchases. At those times, Battle handed over what appeared to be rocks of crack cocaine. The crime laboratory later confirmed that the rocks obtained on January 25 contained .5 gram of cocaine base. The rocks obtained on March 29 contained .2 gram of cocaine base.

¶ 14. Stribling was convicted of three counts of selling a Schedule II controlled substance in violation of Mississippi Code Annotated section 41 — 29—139(a)(1) (Rev. 2009). She was sentenced to ten years on count one, two years on count two, and one year on count three for a total of thirteen years. The sentences were ordered to run consecutively, with the entire sentence served in the custody of the Mississippi Department of Corrections. Her appeal was deflected to this Court for our review.

ANALYSIS

1. Whether the trial judge erred when he refused to require the State to play the entire video recordings.

¶ 15. The State, in its case-in-chief, admitted the video recordings into evidence. The State then played for the jury only those parts of the recordings that showed the drug transactions. The trial judge denied Stribling’s request that the entire video recordings be played at that time. On appeal, Stribling argues that under Mississippi Rule of Evidence 106, she was entitled to have the State play the entire video recordings.

¶ 16. The trial judge decided that the omitted parts of the recordings were not relevant and that, if played, they would merely waste time. Indeed, our review of the recordings shows that during Battle’s drives from the pre-buy meetings to the purchase sites and then from the purchase sites to the post-buy meetings, the camera was pointed at either Battle’s gearshift or his glove compartment. The viewer can neither see nor hear anything of any consequence.

¶ 17. However, Stribling argues that these seemingly immaterial parts of the recordings would have supported her theory of defense. Her theory was that the State failed to establish that the drugs Battle delivered to Officer Gregory were obtained from her. She argued that Battle could have already had the drugs in his possession, or he could have obtained them from someone or somewhere else en route to or from the purchase sites. Indeed, the recordings do not rule out that theory. As Officer Gregory conceded on cross-examination, since the recordings do not show what Battle was doing during the drives, he conceivably could have retrieved the drugs from a hidden location or obtained the drugs elsewhere en route.

¶ 18. Rule 106 provides:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

While the rule only refers to writings or recorded statements, in Wells v. State, 604 So.2d 271, 277-78 (Miss.1992), the Mississippi Supreme Court indicated that the rule is applicable to video recordings like the ones at issue here. In Wells, the State played only parts of a surveillance tape that showed the defendant embezzling funds from her employer. Id. at 277. The defendant asked that the entire recording be played, and the trial judge denied the request. Id. On appeal, the supreme court affirmed the trial judge’s decision, in part, because the defendant cited no authority for her assignment of error. Id. Significantly, the supreme court noted that the defendant “ma[de] no claim under [Rule] 106 (rule of completeness).” Id. Therefore, we will assume for the purposes of our analysis that the rule is applicable in this context.

¶ 19. In this case, there were two reasons the trial judge could have used to refuse to require the State to play the entire recordings. First, he could have found, under Rule 106, that the omitted parts did not “in fairness [have] to be considered contemporaneously with” the parts that were played. Alternatively, he could have found — and it appears he did— that, under Mississippi Rule of Evidence 403, the probative value of the omitted parts was substantially outweighed by considerations of waste of time.

¶ 20. This Court has reviewed the recordings in their entirety, and we find that the trial judge did not abuse his discretion when he allowed the State to play only certain excerpts. There are approximately thirty minutes of recorded video that show nothing more than Battle’s gearshift or glove compartment while he was driving to the purchase sites. The trial judge properly exercised his discretion under Mississippi Rule of Evidence 403 and declined to compel the State to play the entire recordings. That decision was not in error.

¶ 21. In Wells, the supreme court held: Clearly, there was no abuse of discretion by the trial judge’s refusal to make the jury a captive audience for four hours of videotape, much of it consisting of Wells standing at a store counter reading a magazine, applying lotion to her legs, or various other activities to pass the time of day in between customers.

Wells, 604 So.2d at 278. The omitted parts of the recordings at issue are similarly superfluous. Furthermore, the supreme court noted in Wells that the defense could have played the entire recordings in its own case-in-chief. Id. at 277. Likewise, in this case, Stribling could have played the omitted parts during her case-in-chief. However, Stri-bling rested without presenting any evidence.

¶ 22. In addition, even if this Court were to find that the trial judge erred under Rule 106, it would be harmless error. “When the weight of the evidence against the defendant is overwhelming, such error is harmless.” Conway v. State, 915 So.2d 521, 526 (¶20) (Miss.Ct.App.2005) (citation omitted). As we discuss below, we find that the evidence against Stribling was overwhelming. Accordingly, this issue has no merit.

2. Whether the trial judge erred when he denied Stribling’s proffered cautionary jury instruction on the testimony of a confidential informant.

¶ 23. Stribling argues that the trial judge erred when he failed to instruct the jury to consider the testimony of Battle, the confidential informant, with caution. She proffered the following jury instruction, which was denied by the trial judge:

The Court instructs the jury that the law looks with suspicion and distrust on the testimony of an alleged accomplice or informant, and requires the jury to [weigh] that testimony with great care and suspicion. You should [weigh] the testimony from an alleged accomplice or informant, and passing on what weight, if any, you should give this testimony, you should [weigh] it with great care and caution, and look upon it with distrust and suspicion.

¶ 24. This exact instruction was at issue in the case of Denson v. State, 858 So.2d 209 (Miss.Ct.App.2003). In that case, a confidential informant who was equipped with an audio-recording device purchased drugs from the defendant. Id at 210 (¶ 2). The informant later testified against the defendant at trial, and the audio recording was admitted into evidence. The defendant requested the cautionary jury instruction recited above. Id at 210 (¶ 3). The trial judge denied the instruction, and this Court affirmed the trial judge’s decision. Id at 210 (¶ 8). We stated:

[A] cautionary instruction is not absolutely required in every case involving the testimony of a [confidential informant], even when there is evidence of potential bias on the part of that witness in favor of the State; especially where the testimony of the witness finds corroboration in other evidence. In the case now before us, there was substantial evidence presented by the State, including an audiotape of the transaction, that corroborated much of the witness’s testimony, and we are satisfied that the court did not err when it refused the above-quoted instruction.

Id

¶ 25. In this case, Stribling argues for an extension of the rule announced by the Mississippi Supreme Court in Williams v. State, 32 So.3d 486 (Miss.2010). In Williams, the supreme court held that a trial judge must give a cautionary instruction for an accomplice’s testimony when that testimony is uncorroborated by other evidence. Id at 491 (¶ 17). The supreme court further held that neither the testimony of another accomplice nor the testimony of a confidential informant can provide the requisite corroboration. Id. at 492 (¶ 21). The supreme court stated that “both accomplice and informant testimony are, ‘by [their] very nature, looked upon with suspicion and distrust.’ ” Id. (quoting Austin v. State, 784 So.2d 186, 193 (¶ 21) (Miss.2001)). However, if the accomplice’s testimony is corroborated, whether to give the cautionary instruction is within the trial judge’s discretion. Id at 490 (¶ 12).

¶ 26. Assuming for the sake of argument that this rule extends to the testimony of a confidential informant, it would not require a cautionary instruction in this case because Battle’s testimony was corroborated by the video recordings. He testified that he purchased crack cocaine from Stribling on three separate occasions. Three video recordings were admitted into evidence that strongly support that testimony. In two of the videos, Stribling places three or four small objects on the kitchen counter; Battle takes possession of the objects; and he then hands her cash. In the other video, he hands her cash through his ear window. In addition, much of the conversation that occurs between Battle and Stribling in the videos is consistent with drug purchases.

¶ 27. Therefore, under Williams, whether to give the cautionary instruction would have been within the trial judge’s discretion. Based on our review of the record, the trial judge did not abuse that discretion by denying the proffered instruction. Accordingly, this issue has no merit.

3. Whether the trial judge erred when he did not, sua sponte, sever the three counts in the indictment

¶ 28. Next, Stribling argues that the trial judge committed plain error when he allowed the State to prosecute her on a multi-count indictment. She argues that the three sales of cocaine were separate and distinct offenses that should not have been tried in the same proceeding.

¶29. Mississippi Code Annotated section 99-7-2(1) (Rev.2007) provides:

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

Uniform Rule of Circuit and County Court 7.07(A) adopts, verbatim, the language of the statute. When considering whether a multi-count indictment is proper, the Mississippi Supreme Court requires application of the following so-called Corley considerations:

[ (1) ] whether the time period between the occurrences is insignificant!;] [ (2) ] whether the evidence proving each count would be admissible to prove each of the other counts[;] [ (3) ] and whether the crimes are interwoven.

Rushing v. State, 911 So.2d 526, 533 (¶ 14) (Miss.2005) (quoting Corley v. State, 584 So.2d 769, 772 (Miss.1991)).

¶ 30. If a criminal defendant believes that the State has wrongfully proceeded on a multi-count indictment, he or she should ñle a motion to sever the offenses. Id. The trial judge would then hear the motion. Id. The burden would be on the State to make a prima facie showing that the multi-count indictment is proper under the statute. Id. If that showing is made, the defendant would then have an opportunity to rebut. Id. The trial judge would then make his ruling. On appeal, the trial judge’s ruling would be reviewed under an abuse-of-discretion standard of review. Id.

¶ 31. In this case, Stribling did not move to sever the offenses or raise the issue of severance in any way. Therefore, this issue is procedurally barred unless the trial judge committed plain error when he did not, sua sponte, sever the offenses. Patrick v. State, 754 So.2d 1194, 1195-96 (¶¶ 7, 12) (Miss.2000). Only an error that affects the defendant’s substantial rights rises to the level of plain error. Id. We find that this does not rise to the level of plain error; therefore, the issue is procedurally barred.

¶ 32. Notwithstanding the procedural bar, the issue is also without merit. In Rushing, the supreme court found that the trial judge did not abuse his discretion when he denied the defendant’s motion to sever. Rushing, 911 So.2d at 537 (¶ 21). The defendant was charged in a multi-count indictment with three counts of prescription forgery. Id. He had successfully passed two forged prescriptions to one pharmacist. Id. at 528-29 (¶ 2). When he tried to pass another forged prescription to a different pharmacist, his fraud was discovered. Id. at 529 (¶ 3). The three offenses were committed over the span of five months. Id. at 535-36 (¶ 17).

¶ 33. The supreme court applied the three Corley considerations recited above. The court found that five months was not a significant enough time span to require severance. Id. Also, there was substantial overlap in the State’s evidence for all three offenses and that evidence would have been admissible in separate trials for each offense. Id. at 586 (¶ 18). Lastly, the offenses “were clearly linked and part of the same common scheme or plan”; therefore, the offenses were “clearly interwoven.” Id. at 536 (¶ 19).

¶ 34. Likewise, had the trial judge denied a motion by Stribling to sever her offenses, we would not find the trial judge’s decision to be an abuse of discretion. There were only two months between the first and last sales of cocaine. Also, there was substantial overlap in the evidence for each offense. All three offenses, if tried separately, would have required the testimonies of Battle and Gregory. Furthermore, the three cocaine sales, like the three prescription forgeries in Rushing, were “clearly linked and part of the same common scheme or plan.” They formed parts of a common scheme or plan to distribute cocaine for profit. Therefore, the multi-count indictment was proper.

¶ 35. Stribling argues that Mississippi Rule of Evidence 404(b) would prevent the State from introducing evidence of the other two sales of cocaine in a separate trial for just one of the sales; therefore, the second Corley consideration is not satisfied. That Corley consideration provides: “whether the evidence proving each count would be admissible to prove each of the other counts.” Corley, 584 So.2d at 772. Stribling argues that, because that Corley consideration is not satisfied, the three counts should have been severed.

¶ 36. However, the supreme court did not refer to the Corley considerations as “elements.” The court did not hold that, if one of the considerations is unsatisfied, severance is mandatory. In Corley, the court stated that “particular attention” should be paid to the three considerations. Id. In Rushing, they were referred to as “cornerstone considerations.” Rushing, 911 So.2d at 533 (¶ 14). In Golden v. State, 968 So.2d 378, 384 (¶ 19) (Miss.2007), they were referred to as factors that should be “taken together as a whole.” So long as the trial judge follows the proper procedure and considers the Corley factors, whether to sever the offenses is within his discretion. Rushing, 911 So.2d at 533 (¶ 14). Therefore, the mere fact that Rule 404(b) might have operated to exclude evidence of Stribling’s other cocaine sales in a separate, trial for one of the sales does not mean that severance was mandatory.

¶ 37. In conclusion, this issue is procedurally barred because Stribling failed to move to sever the offenses. Notwithstanding the procedural bar, the issue is also without merit.

A Whether the evidence was sufficient to support Stribling’s conviction and whether the verdict is against the overwhelming weight of the evidence.

¶ 38. Lastly, Stribling argues that there was insufficient evidence to support her conviction or, alternatively, that the jury’s verdict is against the overwhelming weight of the evidence. Specifically, she argues that the only direct evidence tying her to the crime was Battle’s testimony. She further argues that paid confidential informants like Battle are inherently unreliable witnesses and that their testimonies should not suffice for conviction.

¶ 39. When reviewing the sufficiency of the evidence, we examine the evidence in the light most favorable to the State to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). When reviewing a claim that the verdict is against the overwhelming 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.” Id. at 844 (¶ 18) (citation omitted).

¶ 40. Stribling’s argument that the testimony of a paid confidential informant cannot sustain a conviction is not supported by Mississippi law. In Boles v. State, 744 So.2d 349 (Miss.Ct.App.1999), this Court affirmed the defendant’s conviction, which was obtained in large part due to the testimony of a paid confidential informant. We stated:

The fact that the confidential informant was being paid for his services is certainly a matter that the jury may consider in weighing what credibility to assign to the informant’s testimony, but that fact does not necessarily render the informant’s testimony inherently unbelievable. ... The jurors, sitting as finders of fact, are charged with the responsibility of listening to all the evidence, including impeachment evidence that might affect a particular witness’s credibility, and then determining what weight and worth to assign to the evidence. McClain v. State, 625 So.2d 774, 781 (Miss.1993).

Id. at 351 (¶ 8). Here, the fact that Battle was a paid informant was revealed. The jury was fully aware of this fact. In spite of this fact, the jury chose to believe Battle’s testimony. This Court is not persuaded that it should disturb the jury’s factual findings.

¶ 41. Furthermore, in Williams, the supreme court reaffirmed the rule that the testimony of an accomplice, standing alone, is sufficient to support a conviction so long as that testimony is not “unreasonable, self contradictory or substantially impeached.” Williams, 32 So.3d at 490 (¶ 14) (quoting Ballenger v. State, 667 So.2d 1242, 1253 (Miss.1995)). Stribling argues throughout her brief that a confidential informant’s testimony should be treated the same under the law as an accomplice’s testimony. If we accepted that proposition, Battle’s testimony, standing alone, would be sufficient to support Stribling’s conviction because his testimony was not unreasonable, self contradictory, or substantially impeached.

¶ 42. Even so, in this case, we are not faced with a conviction based solely on Battle’s testimony. His testimony was substantially corroborated by the video recordings. Despite Stribling’s arguments to the contrary, these recordings lend enormous support to Battle’s testimony that he purchased crack cocaine from Stri-bling on three occasions.

¶ 43. Accordingly, we find that there was sufficient evidence from which a rational juror could find beyond a reasonable doubt that all the elements necessary to convict Stribling on three counts of selling cocaine were present. In addition, we do not find that the verdict is against the overwhelming weight of the evidence. These issues are without merit.

¶ 44. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF THREE COUNTS OF THE SALE OF COCAINE AND SENTENCES OF TEN YEARS ON COUNT I, TWO YEARS ON COUNT II, AND ONE YEAR ON COUNT III, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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