author: MAXWELL, J.,

text:
    Dondrego BOLTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00161-COA.
    Court of Appeals of Mississippi.
    June 12, 2012.
    Rehearing Denied Oct. 16, 2012.

      Leslie S. Lee, Jackson, Justin Taylor Cook, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Dondrego Bolton appeals his house-burglary conviction. He argues the trial court erred by not instructing the jury on the necessary elements of larceny, the underlying offense in Bolton’s burglary charge. He also claims his trial counsel was ineffective. Because we find the jury was properly instructed on the elements of burglary — the crime Bolton was convicted of — and also find Bolton’s appointed counsel was not constitutionally deficient, we affirm.

BACKGROUND FACTS

¶ 2. On March 19, 2010, Jackson Police Department officers responded to a dispatch about a burglary in progress. When they arrived at Millie Vance’s house, they caught Bolton inside the house and another man, John Caston, fleeing from the property. One of the officers testified the inside of the house appeared ransacked by someone looking for things to take. Vance’s daughter testified she lived in the house and Bolton did not have permission to be there.

¶ 3. After his arrest, Bolton admitted he broke into the house, explaining he “just needed money” and had gone in to “steal ... [something [he] could sell.” He was charged with breaking and entering a dwelling “with the intent to commit a crime therein, to wit: to take, steal, or carry away personal property of Millie Vance.”

¶ 4. At trial, Bolton testified in his own defense. He admitted he broke into the house, claiming he did so at Caston’s instigation because Caston needed money. But Bolton denied that he had intended to steal anything inside the house. The jury was instructed on both burglary of a dwelling and the lesser-included offense of trespassing. If the jury found Bolton had “trespass[ed] upon the real property of Millie Vance without any intent to commit larceny or any other crime,” it was instructed to find Bolton guilty of trespass, not burglary. To find Bolton guilty of burglary, the jury was instructed it had to find Bolton broke and entered Vance’s home “[w]ith the intent to commit the crime of larceny or any other crime.”

¶ 5. The jury found Bolton guilty of burglary, and the trial court sentenced him to twenty-five years in the custody of the Mississippi Department of Corrections. Bolton timely appealed.

DISCUSSION

I. Jury Instruction on Burglary

¶ 6. A trial court’s failure to instruct the jury on the essential elements of an offense is a “fundamental” error. Lyles v. State, 12 So.3d 532, 541-42 (¶28) (Miss. Ct.App.2009) (quoting Shaffer v. State, 740 So.2d 273, 282 (¶ 31) (Miss.1998)). Bolton asserts the trial court committed reversible error because it failed to instruct the jury on the elements of larceny. But Bolton was convicted of burglary of a dwelling, not larceny. The crime of burglary has two essential elements: “(1) the burglarious breaking and entering a dwelling, and (2) the felonious intent to commit some crime therein.” Tran v. State, 962 So.2d 1237, 1242 (¶ 19) (Miss.2007) (citing Miss.Code Ann. § 97-17-23 (Rev.2006)). “[T]he crime of burglary does not contain two separate and distinct ‘subcrimes[.]’” Booker v. State, 716 So.2d 1064,1067 (¶ 12) (Miss.1998). “Rather, the intent to commit some crime, be it a felony or a misdemeanor, is simply an element of the crime of burglary.” Id. at 1068 (¶ 12) (citing Ashley v. State, 538 So.2d 1181, 1184 (Miss.1989)).

¶ 7. Although addressing the sufficiency of an indictment, not jury instructions, the Mississippi Supreme Court in Booker found:

The allegation of the ulterior [crime] intended need not, however, be set out as fully and specifically as would be required in an indictment for the actual commission of that [crime ]. It is ordinarily sufficient to state the intended offense generally, as by alleging an intent to steal, or commit the crime of larceny, rape or arson.

Id. (quoting 13 Am.Jur.2d Burglary § 36 (1964)) (emphasis added). Bolton’s indictment charged him generally with the intent to steal. Just as, according to the supreme court in Booker, the State did not have to specifically charge all the elements of larceny in the indictment, we find the State did not have to prove — and the jury did not have to find — Bolton committed larceny. Thus, the failure to instruct the jury on the elements of larceny was not a fundamental error.

¶ 8. The trial court granted the lesser-included-offense instruction on trespassing based on the conflicting evidence about whether Bolton had intended to steal anything from Vance’s home. The jury was instructed on both burglary and trespassing, -the distinction being whether it found Bolton broke and entered Vance’s house “[w]ith the intent to commit the crime of larceny or any other crime” or instead found Bolton had gone into Vance’s house “without any intent to commit larceny or any other crime.” Any failure to expressly instruct the jury that larceny is stealing or that stealing is a crime, at most, was harmless error. See Conley v. State, 790 So.2d 773, 793 (1172) (Miss.2001) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)) (“Error is harmless if it is clear beyond a reasonable doubt that it did not contribute to the verdict.”); ef. Kolberg v. State, 829 So.2d 29, 51 (¶¶ 41-42) (Miss.2002) (finding harmless error in failure to instruct jury on the elements of felony child abuse, the underlying felony of the capital-murder charge). The jury found beyond a reasonable doubt that Bolton intended to commit a crime in Vance’s house, and the evidence about Bolton’s intent to steal from Vance supports this finding. Thus, we reject not only Bolton’s argument that the burglary jury instruction was fundamentally flawed but also his claim that his counsel was constitutionally deficient for not objecting to the instruction.

¶ 9. For the same reason, we also reject Bolton’s alternative argument, framed as an ineffective-assistance-of-counsel claim, that the verdict was the result of an impermissible constructive amendment to the indictment. See Bell v. State, 725 So.2d 836, 855-56 (¶ 61) (Miss. 1998) (finding “a constructive amendment of the indictment occurs when the jury is permitted to convict the defendant upon a factual basis that effectively modifies an essential element of the offense charged” and requires reversal “because the defendant may have been convicted on a ground not charged in the indictment” (quoting United States v. Adams, 778 F.2d 1117, 1123 (5th Cir.1985))). Based on the evidence, it is clear the jury convicted Bolton on the grounds charged in the indictment — that Bolton broke and entered the house with the intent “to take, steal, or carry away personal property of Millie Vance.”

II. Ineffective Assistance of Counsel

¶ 10. Appellate courts generally do not consider ineffective-assistance-of-counsel claims on direct appeal. However, we “will rule on the merits on the rare occasions where ‘(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.’ ” Wilcher v. State, 863 So.2d 776, 825 (¶ 171) (Miss.2003) (quoting Aguilar v. State, 847 So.2d 871, 878 (¶17) (Miss.Ct.App.2002)). Here, Bolton stipulates the record is adequate. Though the State does not address the issue of the adequacy of the record, it addresses the merits of the claim, going into detail about the record facts. Because the State has effectively stipulated to the adequacy of the record, we address Bolton’s ineffective-assistance-of-counsel claim on direct appeal.

¶ 11. To prevail on a claim of ineffective assistance of counsel, Bolton must establish: (1) his attorney’s performance was deficient, and (2) the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To qualify as deficient, an attorney’s performance must fail to meet “an objective standard of reasonableness.”- Id. at 688, 104 S.Ct. 2052. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, ... the challenged action might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052 (citation and quotations omitted). For prejudice to exist, there must be a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694,104 S.Ct. 2052.

A. Failure to Object to State’s Comments

12. Bolton argues his attorney was ineffective for failing to object to certain comments by the State during both opening statements and closing arguments. For Bolton to meet both prongs of Strickland, he must show the comments were improper and should have drawn an objection by a reasonable attorney, and the comments prejudicially affected the outcome. Id. at 687, 694, 104 S.Ct. 2052; cf. Spicer v. State, 921 So.2d 292, 318 (¶ 55) (Miss.2006) (applying the following two-part test to determine if the trial court should have granted a mistrial based on the prosecution’s comments: “(1) whether the remarks were improper, and (2) if so, whether the remarks prejudicially affected the accused’s rights”). In order for no prejudice to result, it must be “clear beyond a reasonable doubt that, absent the prosecutor’s inappropriate comments, the jury would have found the defendant guilty.” Brown v. State, 986 So.2d 270, 276 (¶ 16) (Miss.2008) (modifying the language in Spicer, 921 So.2d at 318 (¶ 55), from “the jury could have found” to “the jury would have found the defendant guilty”).

1. Opening Statement

¶ 13. During opening statements, the prosecutor told the jury: “I know that it’s possible that you all are thinking that since there’s all this evidence, why is he having a trial? But I ask that you not hold that against the State because he pled not guilty.” Bolton contends his attorney should have objected because the State had impermissibly commented on Bolton’s exercise of his right to stand trial and disregarded the presumption Bolton was innocent until proven guilty.

¶ 14. We agree these statements were improper. But we disagree the failure to object led to reversible error, preju-dicially affecting the outcome. In Moore v. State, 932 So.2d 833, 839 (¶ 19) (Miss.Ct. App.2005), the prosecutor told the jury in closing argument: “Y’all didn’t want to be here. That man put you here.” The defendant had argued the comment implied he did not have a right to put on a defense. This court agreed “there [was] no valid reason” for the prosecutor’s statement. Id. at 840 (¶ 21). But this court found no reversible error in overruling the defendant’s objection because “[t]he jury was well instructed as to Moore’s theory of self-defense, and without more, we cannot find that the district attorney’s statements negated the effectiveness of the instructions given the jury.” Id. at 840 (¶21).

¶ 15. Here, the jury was properly instructed it could not find Bolton guilty unless the State proved every element of burglary beyond a reasonable doubt. Because the improper comment in opening statement did not negate this instruction, we find no reversible error occurred. See id.; see also Goodin v. State, 787 So.2d 639, 648 (¶ 31) (Miss.2001) (finding the prosecutor’s improper instruction did not lead to an erroneous verdict because “[t]he jurors were later properly instructed again as to the presumption of innocence and the burden of proof by the trial judge”).

¶ 16. Based on the evidence, we find the jury would have found Bolton guilty without the State’s comments in its opening statement. See Brown, 986 So.2d at 276 (¶ 16); cf. Thomas v. State, 14 So.3d 812, 821 (¶27) (Miss.Ct.App.2009) (finding no prejudice resulted from the State’s comment during the sentencing hearing that the trial court should “take into consideration” the fact that the defendant had exercised his right to trial, instead of pleading guilty, because the comment did not affect the trial court’s sentencing decision). Thus, Bolton has not met his burden to show he was prejudiced by his counsel’s failure to object.

2. Closing Argument

¶ 17. During closing argument, Bolton contends his attorney should have objected to the prosecutor’s comments about Bolton’s request for a lesser-included-offense instruction on trespass. Bolton contends the State was equating a trespassing conviction with a finding of not guilty — essentially telling the jury that convicting Bolton of mere trespass would “send a message” to the community that it was okay to break into people’s homes looking for property to steal.

¶ 18. In Spicer, the Mississippi Supreme Court explained why “send a message” comments are problematic: “Jurors are the representatives of the community, but must vote based on the evidence shown at trial and not in their representative capacity.” Spicer, 921 So.2d at 318 (¶ 53) (citing Williams v. State, 522 So.2d 201, 209 (Miss.1988)). In that case, the supreme court found the prosecutor’s “payback time” speech to the jury was improper because it was clearly “an attempt to use emotion to overcome possible reluctance in the jury, making a baseless appeal to the jurors that they needed to vote as representatives of the community and not based on the evidence that was before them.” Id. at (¶ 56).

¶ 19. But in Long v. State, 52 So.3d 1188, 1193-94 (¶¶ 15-20) (Miss.2011), the supreme court reached the opposite conclusion. The supreme court found the State’s comments — that the sale of drugs should be controlled and that it was important that the jury find the defendant guilty because he had sold drugs — were not “so inflammatory” that they required trial court’s sua sponte objection. Id. at 1193 (¶ 16) (quoting Spicer, 921 So.2d at 317). Instead, “the State’s remarks were simply reiterating the jury’s duty set forth in the jury instructions ... to make a finding of guilt based on the testimony and evidence presented at trial.” Id. at 1194 (¶20).

¶20. Here, while the State’s closing argument did mention the community’s crime problem, in contrast to Spicer, it was not a “baseless appeal” to the jury to ignore the evidence and vote as community members. Instead, we find the comments to be akin to those in Long. The State was making an appeal based on the evidence, urging the jurors to find Bolton guilty of burglary because the evidence supported a burglary conviction and not let Bolton “take the easy way out” by convicting him of a crime less serious than the one he committed.

¶ 21. Moreover, following closing argument, the jury was properly instructed on the evidence necessary to find Bolton guilty of burglary as opposed to trespassing. As with the State’s opening statement, we find it clear beyond a reasonable doubt that, absent these remarks, the jury would have still found Bolton guilty. See Brown, 986 So.2d at 276 (¶ 16).

¶ 22. Thus, we find Bolton cannot show under Strickland his counsel was constitutionally deficient for not objecting to these comments.

B. Failure to Object to Burglary Jury Instruction

If 23. Bolton also argues his attorney was deficient because he did not object to the “any other crimes” language added to the State’s burglary jury instruction. Bolton argues the prejudice resulting from the failure to object was two-fold: (1) the jury was not instructed on the essential elements of burglary; and (2) the jury instruction constructively amended the indictment, which was impermissible. As already discussed, the jury instruction was not fundamentally flawed, and the indictment was not improperly constructively amended. Thus, we cannot find Bqlton’s counsel was deficient or that the outcome would have differed had his counsel objected. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

¶ 24. THE JUDGMENT OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . See Miss.Code. Ann. § 97-17-41(1) (Rev. 2006) ("Every person who shall be convicted of taking and carrying away, feloniously, the personal property of another, of the value of Five Hundred Dollars ($500.00) or more, shall be guilty of grand larceny[.]”); Miss. Code. Ann. § 97-17-43(1) (Rev.2006) ("If any person shall feloniously take, steal and carry away any personal property of another under the value of Five Hundred Dollars ($500.00), he shall be guilty of petit larceny.”).

      . See Issue II.B.

      . During the jury-instruction conference, the State’s burglary jury instruction was amended to add the language "or any other crime” to match the trespassing instruction. Consequently, the State made an ore tenus motion to amend the indictment to include the "any other crime” language. While Bolton’s counsel did not object, it does not appear from the record the motion was actually granted or that the indictment was ever amended. And Bolton does not directly assert his indictment was improperly amended by the trial court. Rather, he couches the allegation in his ineffective-assistance-of-counsel argument. Thus, we consider only whether the burglary jury instruction constructively amended the indictment and whether, under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Bolton can show his counsel was ineffective for not objecting to the amendment. See Issue II.B.

      . Bolton argues his attorney should have objected to the following comments by the State:
      I do want to say, you know, the officers testified that a lot of these house burglaries occur in the city of Jackson, hundreds. And, ladies and gentlemen, if all it takes is to get on the witness stand and tell 12 people that, "Hey, I was just in the house hanging out with my buddy at somebody else's house,” and then you got caught in the house by the police, and then you confess to the crime, that you were in there to steal — if that’s all — if that's all it takes to be guilty of just trespass, then — then, we might as well stop prosecuting these crimes right now.
      I might as well just quit my job and we can’t prosecute these crimes anymore because that — that's the easy way out. That’s the way he wants out. That’s why he got on the stand and said, “I'm guilty of trespass, not just house burglary.”
      He knows he wants the easy way out. He wants y'all to give him the easy way out. And then if that's what’s done here, then, again, we might as well — we might as well not prosecute these crimes, ladies and gentlemen.


source: Caselaw Access Project

author: MAXWELL, J., RUSSELL, J.,

license: Public Domain

text:
    James L. “Buzz” MILES, Appellant v. PAUL MOAK OF RIDGELAND, INC. and Willoughby S. “Chip” Burns, Appellees.
    No. 2011-CA-00407-COA.
    Court of Appeals of Mississippi.
    Sept. 18, 2012.
    Rehearing Denied Mar. 12, 2013.
    Certiorari Denied May 23, 2013.

      James W. Nobles Jr., Jackson, attorney for appellant.
    Michael Wayne Baxter, Ridgeland, attorney for appellees.
    Before IRVING, P.J., MAXWELL, RUSSELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. James L. “Buzz” Miles took possession of a vehicle owned by Paul Moak of Ridgeland Inc. (“Moak”) and agreed to pay Moak $19,200. After nearly seven months of nonpayment, Moak initiated a criminal action against Miles. The parties reached a settlement prior to trial, and the municipal court dismissed the case. Following dismissal, Miles sued Moak and its general manager for malicious prosecution and abuse of process. Miles appeals the circuit judge’s grant of summary judgment in Moak’s favor, claiming he raised fact issues on both claims. We disagree. Because a dismissal based on a negotiated settlement is not deemed to have terminated in the accused’s favor, his malicious prosecution claim fails. Miles also fails to show a perversion of the legal process, so his abuse-of-process claim also lacks support. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2. Miles owned and operated Autoshow LLC. He had purchased used vehicles from Moak for many years. It was customary for Moak to deliver possession of a vehicle and its bill of sale to Miles prior to receiving payment. Under this arrangement, payment became due only when Moak notified Miles that title to the vehicle was ready to be picked up. The average number of days between Miles taking possession of a vehicle from Moak and Miles’s payment for that vehicle was nineteen days. The longest period of nonpayment was fifty-two days.

¶ 3. On September 30, 2008, Miles took possession of a 2006 GMC Yukon owned by Moak. There was an understanding Miles would pay Moak $19,200. As was the custom between the parties, Moak later notified Miles that title to the vehicle was ready and that full payment was expected. But Miles refused to pay Moak.

¶ 4. On April 24, 2009, after nearly seven months without payment, Willoughby S. “Chip” Burns, Moak’s general manager, contacted the Ridgeland Police Department and reported the vehicle stolen. Burns informed a Ridgeland police officer that Miles had been in possession of the vehicle for nearly seven months and had continued to ignore Moak’s demands for payment. Burns provided a written statement describing the nonpayment. Shortly thereafter, Miles was arrested and charged with embezzlement under contract under Mississippi Code Annotated section 97-23-25 (Rev.2006). Following his arrest, Miles admitted to a police officer that he had not paid Moak for the vehicle and had since sold it to a third party.

¶ 5. On July 27, 2009, Miles’s attorney initiated a settlement with Moak. Under its terms, Burns would request the charge against Miles be dismissed in exchange for full payment of the Yukon. The parties followed through with this arrangement, and the municipal court dismissed the case on July 28, 2009.

¶ 6. On April 14, 2010, Miles sued Moak for malicious prosecution and abuse of process. Moak moved for summary judgment, arguing that Miles had failed to prove three of the six essential elements of malicious prosecution, and as a result, had presented no evidence Moak or Burns had abused the legal process. The circuit court granted summary judgment in Moak’s favor on both claims and denied Miles’s cross-motion for partial summary judgment.

¶ 7. On appeal, Miles claims his lawsuit should have survived summary judgment because Moak initiated the underlying criminal action solely to collect a civil debt.

STANDARD OF REVIEW

¶8. We conduct a de novo review of a circuit court’s grant or denial of a motion for summary judgment. Lewallen v. Slawson, 822 So.2d 236, 237 (¶ 6) (Miss.2002) (citation omitted). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). In determining whether summary judgment was proper, we view the facts in the light most favorable to the non-movant. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (1112) (Miss.1999).

¶ 9. Summary judgment must be granted when the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial.” Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (¶ 16) (Miss.Ct. App.2009) (citing Grisham v. John Q. Long V.F.W. Post, No. 1057, Inc., 519 So.2d 413, 416 (Miss.1988)). To withstand summary judgment, the nonmoving party must produce significant probative evidence of a genuine issue for trial. Id. (citing Price v. Purdue Pharm. Co., 920 So.2d 479, 485 (¶ 16) (Miss.2006)).

DISCUSSION

I. Malicious-Prosecution Claim

¶ 10. To succeed on a claim for malicious prosecution, a plaintiff must prove six elements:

(1) the institution of a proceeding; (2) by, or at the insistence of the defendant; (3) the termination of such proceeding in the plaintiffs favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding; and (6) the suffering of the injury or damage as a result of the prosecution.

Robinson v. Hill City Oil Co., 2 So.3d 661, 665 (¶ 9) (Miss.Ct.App.2008) (quoting McClinton v. Delta Pride Catfish, Inc., 792 So.2d 968, 973 (¶ 8) (Miss.2001)). Failure to prove any element by a preponderance of the evidence is fatal to the plaintiffs claim. Perkins v. WaV-Mart Stores, Inc., 46 So.3d 839, 845 (¶ 10) (Miss.Ct.App.2010) (citing Robinson, 2 So.3d at 665 (¶ 9)).

A. Lack of Probable Cause

¶ 11. An action for malicious prosecution will not lie if probable cause exists for the initiation of criminal proceedings. Hudson v. Palmer, 977 So.2d 369, 381 (¶ 33) (Miss.Ct.App.2007). “Probable cause is determined from the facts apparent to the observer when prosecution is initiated.” Van v. Grand Casinos of Miss., Inc., 767 So.2d 1014, 1019-20 (¶ 14) (Miss.2000) (quoting Moon v. Condere Corp., 690 So.2d 1191, 1195 (Miss.1997)). To establish “[pjrobable cause requires the concurrence of (1) a subjective element— an honest belief in the guilt of the person accused, and (2) an objective element— reasonable grounds for such beliefs.” Strong v. Nicholson, 580 So.2d 1288, 1294 (Miss.1991) (citing Benjamin v. Hooper Elec. Supply Co., 568 So.2d 1182, 1190 (Miss.1990); Royal Oil Co. v. Wells, 500 So.2d 439, 443 (Miss.1986)). If the instigator of the action reasonably believed he had a good chance of establishing his case to the judge or jury’s satisfaction, probable cause exists. Owens v. Kroger Co., 430 So.2d 843, 846 (Miss.1983).

¶ 12. In his deposition, Moak’s owner explained his company’s ultimate goal in initiating criminal proceedings was to report a stolen vehicle, not to collect a civil debt. We note that before the Yukon episode, Miles delivered payment to Moak on average within nineteen days. The lag had never exceeded fifty-two days after receiving notification that title to a vehicle was ready to be picked up. Undisputed evidence established Miles ignored or refused Moak’s demands for payment for nearly seven months before Moak sought criminal action. And when questioned by police following his arrest, Miles admitted he had not paid Moak for the vehicle because of insufficient funds and had since sold it to a third party.

¶ 13. We find Miles’s conduct was far enough removed from the parties’ normal business practice that a reasonable person would conclude he committed some sort of crime. Thus, Miles failed to present sufficient evidence of a lack of probable cause for the criminal proceeding.

B. Termination of the Criminal Action

¶ 14. A claim for malicious prosecution also requires a “termination” of the proceedings in the plaintiffs favor. Robinson, 2 So.3d at 665 (¶ 9). Not all dismissals qualify as favorable termination for purposes of malicious-prosecution actions. Stewart v. Se. Foods, Inc., 688 So.2d 733, 737 n. 2 (Miss.1996). To constitute favorable termination in this context, “the dismissal of criminal proceedings must reflect on the merits of the criminal action.” Bearden v. BellSouth Telecomm., Inc., 29 So.3d 761, 764 (¶ 10) (Miss.2010) (citing Van v. Grand Casinos of Miss., Inc., 724 So.2d 889, 893 (¶ 15) (Miss.1998)). A criminal proceeding terminates in favor of the accused “only when [the] final disposition is such as to indicate [his] innocence.” Id. at 764 (¶ 11) (quoting Restatement (Second) of Torts § 660 cmt. a (1977)).

¶ 15. Under Mississippi law, “dismissal reached as a result of a voluntary settlement or compromise does not constitute a termination in favor of the accused.” Van, 724 So.2d at 892 (¶ 11) (citing Jones v. Donald Co., 137 Miss. 602, 602, 102 So. 540, 540 (1925); Stewart, 688 So.2d at 737 n. 2). In a factually similar case, the United States Court of Appeals for the Fifth Circuit held that dismissal of embezzlement charges following an agreement to pay for the allegedly embezzled items does not constitute favorable termination. Brabham v. O’Reilly Auto., Inc., 274 Fed. Appx. 373, 376 (5th Cir.2008) (unpublished).

¶ 16. Here, there is no dispute that Miles, through his attorney, initiated a compromise settlement with Moak. In a letter dated July 27, 2009, Miles's attorney confirmed that, in exchange for full payment of the Yukon, Moak would ask the municipal court to dismiss the embezzlement charge against Miles. Moak ultimately received payment, and the court agreed to dismiss the case. The dismissal resulted from the parties’ compromise and does not establish Miles’s innocence of the charge. Thus, the dismissal of Miles’s embezzlement charge does not qualify as a favorable termination.

C. Malice

¶ 17. Malice refers to the defendant’s objective in bringing the criminal proceeding. See Nassar v. Concordia Rod & Gun Club, Inc., 682 So.2d 1035, 1042 (Miss.1996) (citing Strong, 580 So.2d at 1293). In the context of a malicious-prosecution claim, malice “occurs when the primary purpose of prosecuting is one other than ‘bringing an offender to justice.’” Coleman v. Smith, 914 So.2d 807, 811-12 (¶ 12) (Miss.Ct.App.2005) (quoting Strong, 580 So.2d at 1293). Unlike probable cause, the malice inquiry focuses primarily on the defendant’s subjective state of mind at the time he filed the criminal action. See Page v. Wiggins, 595 So.2d 1291, 1293 (Miss. 1992).

¶ 18. Miles argues Moak and Burns initiated the criminal charge to collect a civil debt, not to bring Miles to justice. But there is no record evidence to support his contention. Miles failed to offer any evidence that Moak or Bums threatened him with criminal charges as a means to coerce payment. Nor is there evidence that Moak solicited Miles to pay in exchange for dismissal of the embezzlement charge. As previously discussed, Miles initiated the settlement discussion and agreed to a mercy dismissal. Therefore, we find Miles failed to prove malice on the part of Moak or Burns.

¶ 19. Based on Miles’s failure to prove three of the six essential elements of malicious prosecution, we find the circuit court properly granted summary judgment in Moak’s favor.

II. Abuse-of-Process Claim

¶ 20. To maintain an abuse-of-process claim, the plaintiff must prove the following elements by a preponderance of the evidence: (1) the defendant made an illegal use of process, (2) the defendant had an ulterior motive for exercising such illegal use of process, and (3) damage resulted from the perverted use of process. Ayles ex rel. Allen v. Allen, 907 So.2d 800, 303 (¶ 10) (Miss.2005) (citing McLain v. West Side Bone & Joint Ctr., 656 So.2d 119, 123 (Miss.1995)). “An action for abuse of process differs from an action for malicious prosecution in that the latter is concerned with maliciously causing process to issue, while the former is concerned with the improper use of process after it has been issued.” State ex rel. Foster v. Turner, 319 So.2d 233, 236 (Miss.1975). The “crucial element of [abuse of process] is the intent to abuse the privileges of the legal system.” Allen, 907 So.2d at 303 (¶ 10) (citing McLain, 656 So.2d at 123).

¶ 21. We find Miles fails to show any perversion or unauthorized use of any legal process. Moak lawfully initiated the embezzlement action. Although Miles claims Moak abused the criminal process to collect a civil debt, Moak had probable cause to believe Miles’s nonpayment constituted a crime. Because Miles fails to show any improper use of process, we find summary judgment was proper on this claim.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. RUSSELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

RUSSELL, J.,

concurring in part and dissenting in part:

¶ 23. I agree with the majority’s holding regarding Miles’s malicious-prosecution claim. The majority also finds that the trial court properly granted Moak’s motion for summary judgment because Miles failed to establish the three elements necessary for an abuse-of-process claim. In my view, (1) Moak made an illegal use of a legal process; (2) it had an ulterior motive; and (3) damage resulted from its improper use of process. Therefore, I respectfully dissent.

¶ 24. A trial court’s grant of summary judgment is reviewed de novo. Hubbard v. Wansley, 954 So.2d 951, 956 (¶ 9) (Miss. 2007). Summary judgment will be granted only when there is no genuine issue of material fact to be decided, and the moving party is therefore entitled to judgment as a matter of law. See Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss.2005). “To withstand summary judgment, the party opposing the motion must present sufficient proof to establish each element of each claim.” Mortem v. City of Shelby, 984 So.2d 323, 330 (¶ 14) (Miss.Ct.App. 2007) (citing Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987).

¶ 25. According to our supreme court, the “crucial element” of an abuse-of-process claim “is the intent to abuse the privileges of the legal system.” Ayles ex rel. Allen v. Allen, 907 So.2d 300, 303 (¶ 10) (Miss.2005) (citing McLain v. West Side Bone & Joint Ctr., 656 So.2d 119, 123 (Miss.1995)). In this case, Moak asserts that it reported what it believed to be a crime, motivated only by the desire to see that justice was done. However, the record indicates otherwise. That is, Moak’s ulterior motive in exercising such an illegal, or improper, use of process was to receive payment for a civil debt.

¶ 26. It is undisputed that Miles acquired the vehicle through the normal course of business with Moak. The terms of the sale of the Yukon were in accordance with the custom and practice in the wholesale used car business in Mississippi: (1) the seller delivers possession of the motor vehicle and keys to the vehicle, along with a bill of sale; (2) no payment is expected at the time of sale since the title documents for the vehicle usually are not in the hands of the seller; (3) payment for the motor vehicle is expected at the time the title is tendered to the buyer; and (4) in the meantime, the buyer has the authority to sell the vehicle to third persons and deliver to them the necessary application for title, allowing the third party to obtain license plates and file the application.

¶ 27. Within ninety days of the transaction, on December 15, 2008, Moak submitted a claim to Western Surety Co. to collect on Mile’s surety bond. In the claim, Moak did not allege that Miles had stolen the vehicle. Rather, Moak admitted that the purpose of the claim was to collect payment. On February 17, 2009, CNA Surety responded, stating that if the Moak was still holding title of the vehicle, then Moak could recover payment. Again on April 24, 2009, CNA Surety sent a letter stating that until CNA Surety received a claim for the title of the vehicle, CNA Surety would not be able to assist Moak. However, it does not appear that Moak ever tendered the title to CNA Surety or Western Surety Co. to process for payment. Instead, Moak turned to the criminal process to collect the civil debt.

¶28. Also, Burns reported the vehicle to the Ridgeland Police Department as “stolen.” When questioned under oath, Burns admitted that although he had filed criminal charges, he did not intend for Miles to be arrested. Burns further admitted that he did not intend for Miles to go to jail. Additionally, while the vehicle was reported as stolen, Moak did not file an insurance claim with its carrier, and the record indicates that Moak had no expectation of the return of the vehicle. The record is silent as to why Moak would not want Miles arrested or sent to jail if Moak believed that a crime had occurred. Additionally, by reporting the vehicle as stolen, it would be reasonable to expect the car to be returned. Instead, Moak’s actions reflect use of the criminal process to coerce Miles into providing payment.

¶ 29. Finally, while it was Miles’s attorney who initiated the compromise to dismiss the criminal charges upon payment for the vehicle, the record indicates that if Miles’s attorney had not contacted Moak, Moak would have allowed the court to go forward with the criminal proceedings. These actions further indicate that Moak’s primary motive was to obtain payment for the vehicle, not to see that justice was done.

¶ 30. It is clear from the record that Moak’s ulterior motive was to receive payment of a civil debt, thus satisfying the second element of an abuse-of-process claim. And it is well established “that the use of criminal process ... in an effort to collect a civil debt will support an action for abuse of process,” in turn satisfying the first element of an abuse-of-process claim. McComett v. City of Jackson, Miss., 489 F.Supp.2d 605, 610 (S.D.Miss. 2006). Because Miles suffered damages as a result of this improper use of process, he established the three elements to support a claim for abuse of process. I submit that the record evidence presents, at the very least, a genuine issue for the fact-finder precluding summary judgment.

¶ 31. Based on the discussion above, I would reverse summary judgment and remand for further proceedings on this issue.

      . Section 97-23-25 provides:
      If any person shall fraudulently appropriate personal property or money which has been delivered to him on deposit, or to be carried or repaired, or on any other contract or trust by which he was bound to deliver or return the thing received or its proceeds, on conviction, he shall be punished by imprisonment in the penitentiary not more than ten years, or be fined not more than one thousand dollars and imprisoned in the county jail not more than one year, or either.

      . Miles also asserted claims of negligence and gross negligence but does not appeal the circuit court’s dismissal those claims.

      . I refer to the Appellees collectively as "Moak," unless specified otherwise.


author: CARLTON, J„

text:
    Larry R. WILBANKS, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01831-COA.
    Court of Appeals of Mississippi.
    Dec. 4, 2012.
    Rehearing Denied May 7, 2013.

      Larry R. Wilbanks, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J„

for the Court:

¶ 1. Larry R. Wilbanks appeals the judgment of the Alcorn County Circuit Court dismissing his motion for post-conviction relief (PCR) as a successive writ. Wil-banks raises the following assignments of error: whether (1) he failed to enter an intelligent, knowing, and voluntary guilty plea; (2) his confession to law-enforcement officers was coerced and should have been suppressed; (3) his trial counsel rendered ineffective assistance; and (4) he received an illegal sentence. Finding no error, we affirm.

FACTS

¶ 2. A grand jury before the Alcorn County Circuit Court indicted Wilbanks for burglary of a dwelling with intent to commit robbery (count I), as well as the rape (count II) and sexual battery (count III) of Elva Smith. Smith was over the age of sixty-five years old when these felonies occurred, which qualified Wilbanks for enhanced sentencing under Mississippi Code Annotated section 99-19-357 (Rev. 2007).

¶ 3. On April 8, 2005, Wilbanks pled guilty to burglary (count I) and rape (count II). Wilbanks also pled guilty to sexual battery (count III) pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Wilbanks waived his right to a jury trial for the sentencing proceedings. On July 21, 2005, after a sentencing hearing, the circuit court imposed upon Wilbanks three enhanced sentences of fifty years (count I), sixty years (count II), and sixty years (count III) to serve in the custody of the Mississippi Department of Corrections (MDOC). The court ordered the sentences to run consecutively.

¶ 4. Wilbanks has previously filed a PCR motion, which the circuit court denied on December 7, 2007. In the circuit court’s December 2007 order, the court found no merit to Wilbanks’s claims of improper police procedures, involuntary plea, illegal and excessive sentence, and ineffective assistance of counsel.

¶ 5. On September 13, 2011, Wilbanks filed another PCR motion. The circuit court dismissed the PCR motion, finding the motion barred as a successive writ. In making its findings, the court noted that Wilbanks alleged basically the same errors raised in his previous PCR motion.

¶ 6. Wilbanks now appeals.

STANDARD OF REVIEW

¶ 7. “When reviewing a [circuit] court’s denial or dismissal of a motion for post-conviction relief, we "will reverse the judgment of the [circuit] court only if its factual findings are clearly erroneous; however, we review the circuit court’s legal conclusions under a de novo standard of review.” Grogan v. State, 89 So.3d 617, 619-20 (¶ 5) (Miss.Ct.App.2011) (citation omitted).

DISCUSSION

I. SUCCESSIVE WRIT

¶ 8. The Uniform Post-Conviction Collateral Relief Act (UPCCRA) generally bars successive motions from this Court’s review. White v. State, 59 So.3d 633, 635 (¶ 6) (Miss.Ct.App.2011). Under Mississippi Code Annotated séction 99-39-23(6) (Supp.2012), “all successive motions are barred if the prisoner has previously filed a PCR motion.” Evans v. State, 75 So.3d 1119, 1120 (¶ 5) (Miss.Ct.App.2011).

¶ 9. Wilbanks’s present PCR motion is a successive writ because it is at least his second PCR motion. As noted by the circuit court, Wilbanks alleged in his prior PCR motion basically the same errors asserted in this appeal.

¶ 10. Accordingly, we must look to see whether an exception to the procedural bar applies.

II. EXCEPTIONS

¶ 11. The movant bears the burden of showing that he satisfies a statutory exception. White, 59 So.3d at 635 (¶8) (citation omitted). “Exceptions to this statutory bar exist in cases where ‘an intervening decision of the United States Supreme Court or the Mississippi Supreme Court’ adversely affects the outcome of the prisoner’s conviction or sentence, or where new evidence, not reasonably discoverable at trial, ‘has surfaced which would have caused a different result in the conviction or sentence.’ ” Bradley v. State, 89 So.3d 82, 83 (¶4) (Miss.Ct.App.2012). “A third ‘exception requires the prisoner to show that either his sentence has expired or his parole, probation or conditional release has been unlawfully revoked.’ ” Id. Additionally, “errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.” Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010). However, mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar. Chandler v. State, 44 So.3d 442, 444 (¶ 8) (Miss.Ct.App.2010). At least some basis must appear for the truth of the claim before this Court will waive the procedural bar. Id.

¶ 12. In an attempt to circumvent the statutory bar, Wilbanks argues the following: he failed to enter an intelligent, knowing, and voluntary guilty plea; law-enforcement officers coerced his confession; he received ineffective assistance of counsel; and he received an illegal sentence. The circuit court addressed basically the same errors asserted in this appeal in the circuit court’s ruling upon Wilbanks’s previous PCR motion in 2007. Furthermore, Wilbanks’s newest PCR motion fails to overcome the successive-writ bar.

¶ 13. The record in the present case belies all of Wilbanks’s claims. The plea colloquy shows that Wilbanks entered knowing, voluntary, and intelligent pleas, and it evidences a factual basis for the pleas. The plea colloquy also reflects that Wilbanks knowingly waived his constitutional rights, and that he stated under oath that he was satisfied with his attorney’s services and advice. The record shows no evidence of police coercion, as alleged by Wilbanks. At his plea hearing, Wilbanks admitted under oath that he had committed the crimes of burglary and rape. Upon reviewing the evidence with his trial counsel, Wilbanks also admitted that sufficient evidence existed for the State to prove the sexual-battery charge to a jury, and that he entered his plea of guilty because he believed the plea was in his best interest.

¶ 14. Additionally, the record includes the transcript from the sentencing hearing, which reflects that Wilbanks voluntarily and intelligently waived his right to a jury trial at a separate sentencing hearing that dealt with the factual basis for the enhancement of his sentences. See Miss. Code Ann. § 99-19-355. The sentences imposed by the circuit court at the sentencing hearing fall within the statutory limits for burglary, rape, and sexual battery. See Woods v. State, 71 So.3d 1241, 1246 (¶ 15) (Miss.Ct.App.2011) (“An appellate court generally will not disturb a sentence where it does not exceed the statutory maximum.”); see also Miss.Code Ann. §§ 97-17-23 (Supp.2012), 97-3-65 (Supp. 2012), 97-3-101 (Rev.2006). Further, the circuit court found that sufficient evidence existed for finding that Wilbanks qualified for enhanced sentencing. See Miss.Code Ann. § 99-19-357. Wilbanks’s assignments of error are without merit.

CONCLUSION

¶ 15. Since Wilbanks failed to present any evidence to move his PCR motion beyond the procedural bar, the circuit court committed no error in dismissing his PCR motion as barred as a successive writ.

¶ 16. THE JUDGMENT OF THE AL-CORN COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ALCORN COUNTY.

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

      . See Miss.Code Ann. §§ 99-19-355 (Rev. 2007), 99-19-357.


text:
    Jeffery WEBB, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00405-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    Rehearing Denied May 21, 2013.

      Merrida Coxwell, Jackson, Michael Eric Brown, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Under Mississippi Rule of Evidence 803(25), the “tender-years exception” to the hearsay rule, a witness may testify about statements “made by a child of tender years describing any act of sexual contact performed with or on the child.” Before admitting this testimony, the trial judge must conduct a hearing outside the jury’s presence and make two findings— (1) the child was of tender years when she made the statement, and (2) the statement has substantial indicia of reliability.

¶ 2. At Jeffrey Webb’s trial, Webb’s victim testified that he sexually abused her from the time she was eleven until she was fourteen, ultimately raping her. Ten other witnesses, recounted what the victim had told them about Webb’s abusive acts. On appeal, Webb challenges the testimony of these ten witnesses, which was admitted under the tender-years exception, and claims his convictions of sexual battery, statutory rape, and gratification of lust must be reversed.

¶ B. While the trial judge made the required findings of the victim’s tender age and the reliability of her statements, he did so after hearing from only two of the hearsay witnesses — the eight other witnesses testified without first proffering their testimony in a hearing outside the jury’s presence. Though the appropriate method for evaluating such testimony required an on-the-record proffer of the additional witnesses’ testimony outside the jury’s presence before determining the statements they recounted were reliable, we find the failure to do so here, at most, harmless error. Even absent this testimony, there was strong evidence of Webb’s guilt, which heavily outweighed any prejudice created by not proffering the witnesses’ testimony on the record. We affirm.

Background

¶ 4. One morning at school choir practice, Pierre found fellow high-school freshman Hope crying. When Pierre asked her what was wrong, Hope revealed she had been raped by her mother’s boyfriend, Jeffrey Webb, the day before. Hope had previously confided in Pierre that Webb had been sexually abusing her but begged Pierre not to tell anyone. This time Pierre informed the school counselor, Heather Norton. Norton contacted the Department of Human Services (DHS) and Hope’s mother, Tashanda.

¶ 5. A forensic interviewer with the Mississippi Child Advocacy Center (MCAC) interviewed Hope. Her taped interview revealed that, starting when Hope was eleven, Webb — who was the father of Hope’s three younger siblings and lived with Hope’s family — began sneaking into Hope’s room at night and rubbing, kissing, and licking her in inappropriate places. Wanting to protect her mother and siblings, Hope kept the sexual abuse from her family. However, she confided in her friend Amber soon after the abuse began. The abuse continued, and when she was thirteen, Hope mentioned it to two other friends, Morgan and Alaya. By the end of the investigation, Hope, who was then fourteen, had described Webb’s three years of sexual abuse to eleven people— including her doctor, a social worker, and the police officer investigating her allegations.

¶ 6. Webb was charged in a three-count indictment with sexual battery, statutory rape, and gratification of lust by fondling a child. And the State sought to offer testimony from the eleven people Hope had told about the sexual abuse. In a pretrial hearing, MCAC interviewer Rachel Daniels testified about Hope’s forensic interview. The interview, which was conducted when Hope was fourteen, concerned the sexual abuse and Hope’s reporting of Webb’s acts. A video of the interview was introduced at the hearing. Hope’s mother, Tashanda, also testified, as did Hope. The trial judge determined: (1) Hope was a child of tender years at the time she made statements about the abuse; and (2) the time, content, and circumstances of her statements provided substantial indicia of reliability. The trial judge found the testimony about Hope’s statements concerning the abuse admissible under Rule 803(25).

¶ 7. At the pretrial hearing, the judge remarked that the State intended to call other witnesses in addition to Tashanda and Daniels to testify about Hope’s disclosures. The judge assured Webb’s counsel he would have an opportunity, prior to these witnesses testifying before, the jury, to (1) conduct voir dire and (2) object based on hearsay. The first morning of trial, prior to jury selection, the judge again discussed with the State and Webb’s counsel how these additional witnesses would be handled. But after the jury was empaneled, apparently there was an off-the-record conference between the judge, the State, and Webb’s counsel. Based on that conference, the judge stated for the record, ‘We initially were going to have the proffer of testimony of various witnesses prior to the beginning of trial. And by agreement of counsel, we’re not going to do so.” (Emphasis added). The judge asked the State and Webb’s counsel, “And is that clear enough for the record for you?” But only the State responded, acknowledging Webb’s “continuing objection” to the hearsay witnesses.

¶ 8. Hope testified at trial. During her testimony, the video of her MCAC interview was introduced and played to the jury. In addition, the State called ten witnesses who recounted Hope’s disclosures about Webb’s sexual abuse.

¶ 9. The State also called Dr. Darden North, the gynecologist who treated Hope when she was fourteen. Dr. North testified Hope’s hymen had been torn, indicating sexual intercourse, and repeated Hope’s and Tashanda’s statements that Webb had forced intercourse with Hope. Additionally, Sergeant Jeff Myers of the JPD testified about Webb’s investigation, and DNA analyst Kathryn Moyse testified about the physical evidence. (Neither Sergeant Myers’s nor Moyse’s testimony is challenged on appeal.)

¶ 10. The jury found Webb guilty of sexual battery, statutory rape, and gratification of lust. The Hinds County Circuit Court sentenced Webb to consecutive sentences of thirty years, thirty years, and fifteen years, respectively. Webb timely appealed.

Discussion

¶ 11. All of Webb’s issues on appeal— (1) the allegedly inadmissible and cumulative hearsay, (2) the challenge to the weight of the evidence, and (3) the allegations of ineffective assistance of counsel— are based on the admission of the corroborative witnesses’ testimony. We acknowledge their testimony recounting what Hope told them about Webb’s sexual abuse (and, in Dr. North’s case, what Tashanda also told him), offered by, the State to prove Webb had in fact abused Hope, was undoubtedly hearsay. See M.R.E. 801(c) (defining “hearsay”). But the question is — was it admissible hearsay?

¶ 12. Hearsay is inadmissible unless the law provides an exception. M.R.E. 802; see M.R.E. 803 (exceptions that apply regardless of whether the declarant is available to testify); M.R.E. 804 (exceptions that apply only when declarant is “unavailable” to testify). In this case, two exceptions were employed — Rule 803(4)’s exception for “[sjtatements made for purposes of medical diagnosis or treatment” and Rule 803(25)’s exception for “statement[s] made by a child of tender years describing any act of sexual contact performed with or on the child by another[.]” M.R.E. 803(4) <& (25). Webb argues both exceptions were misapplied, entitling him to a new trial.

¶ 13. We review the admission of evidence for abuse of discretion. Palmer v. State, 986 So.2d 328, 331 (¶ 12) (Miss.Ct. App.2007). And our review shows no errors warranting a new trial.

I. Corroborative Testimony

A. Medical-Diagnosis Exception

¶ 14. The trial judge admitted Dr. North’s testimony, which contained hearsay statements from both Hope and Tash-anda, through the medical-diagnosis exception. See M.R.E. 803(4). Webb concedes Hope’s statements were admissible but insists Tashanda’s statements to Dr. North were outside the scope of Rule 803(4) because Tashanda was not Dr. North’s patient.'

¶ 15. The Mississippi Supreme Court rejected this argument in Valmain v. State, 5 So.3d 1079, 1083-84 (¶¶ 13-17) (Miss.2009). In Valmain, the supreme court found that, because “Rule 803(4) ‘casts its net wider than the patient-physician relationship,’ ” the trial judge had discretion to admit statements made by the child’s mother for purposes of medical diagnosis. Id. at 1083 (¶ 14) (quoting In re B.R., 270 Neb. 685, 708 N.W.2d 586, 591 (2005)). We likewise find no abuse of discretion in the trial court’s admitting Tash-anda’s hearsay statements through Dr. North. Though she was not in a patient-physician relationship with Dr. North, Tashanda told Dr. North about Webb’s sexual abuse for purposes of Hope’s medical diagnosis. Thus, her statements fall within the exception found in Rule 803(4). See Davis v. State, 878 So.2d 1020,1024-25 (¶ 14) (Miss.Ct.App.2004) (holding that statements about child sexual abuse, including “the identity of the perpetrator,” fall within the scope of Rule 803(4)).

B. Tender-Years Exception

¶ 16. The trial judge found Hope’s statements to the other corroborative witnesses were admissible through Rule 803(25), the tender-years exception. Rule 803(25) permits the admission of “[a] statement made by a child of tender years describing any act of sexual contact performed with or on the child by another[.]” Under Rule 803(25):

(1) the trial judge must find the child was of tender years when she made the statement;
(2) in a hearing outside of the jury’s presence, the trial judge must find the statement has substantial indicia of reliability; and
(3) the child must testify (or be “unavailable as a witness,” which triggers additional requirements).

Palmer, 986 So.2d at 331 (¶ 11) (citing M.R.E. 803(25)).

¶ 17. Hope testified at trial, clearly meeting the third element. What Webb challenges is the first and second elements. Concerning Tashanda and Daniels, who testified at the pretrial hearing, Webb argues the trial judge’s findings based on their testimony were erroneous. As to the other Rule 803(25) witnesses, Webb argues the trial judge failed to make findings of Hope’s tender years and the reliability of her statements to them.

1. Finding Hope Was of Tender Years

¶ 18. The second element of Rule 803(25) — whether Hope was a child of tender years when she made statements about Webb’s abuse — considers Hope’s mental and emotional age at the time she made the statements, not at the time she testified at trial. Marshall v. State, 812 So.2d 1068, 1075 (¶ 20) (Miss.Ct.App.2001) (citing McGowan v. State, 742 So.2d 1183, 1186 (¶ 18) (Miss.Ct.App.1999)). Rule 803(25) does not “set a specific age criterion” for when a child is of tender years. Veas ley v. State, 735 So.2d 432, 436 (¶ 14) (Miss.1999). So for guidance, our supreme court has created an age-based presumption. Under this rebuttable presumption, a child under twelve years is presumed to be of tender years. But a case-specific determination must be made when deciding whether children twelve years or older are of tender years. Id. at 436-37 (¶ 16). “This determination should be made on the record and based on a factual finding as to the victim’s mental and emotional age.” Id. at 437 (¶ 16).

¶ 19. Hope was eleven when she confided in Amber, which carries the presumption of tender years. But because Hope was twelve or older when she reported Webb’s abuse to everyone else, the trial judge had to make an on-the-record determination, based on factual findings, that her mental and emotional age was of tender years.

¶ 20. We find the trial judge made such a case-specific determination. After listening to Hope’s, Tashanda’s, and Daniels’s testimony, and watching the MCAC video-recorded interview of Hope, the trial judge made the on-the-record finding that Hope’s mental and emotional age at the time she reported Webb’s abusive acts was one of tender years. Because the trial judge supported his findings with substantial evidence, we reject Webb’s argument that this finding was an abuse of discretion.

21. We also reject Webb’s argument that this finding did not apply to the other corroborative witnesses because they did not testify at the pretrial hearing. Hope was the same age when she talked to her mother and the MCAC as she was when she reported abuse to Pierre, Norton, Weathersby, Skinner, and Detective Bacon. And Hope was a year younger when she told Morgan and Alaya. It defies logic to suggest the trial judge would have found, for tender-years purposes, Hope was actually “older” at the time she made statements to these other witnesses. Further, Hope herself, through the MCAC interview, described the circumstances in which she confided in each corroborating witness, from which the trial judge could deduce her mental and emotional age at those times.

¶ 22. Because the trial judge considered Hope’s age at the time she made all statements about the abuse, we find Veas ley’s requirement of a case-specific determination of tender years was met.

2. Reliability of Hope’s Statements

¶ 23. For the third element of Rule 803(25) — whether Hope’s statements have substantial indicia of reliability — the trial judge had to “make an overall determination [that Hope,] the child declarant[,] was particularly likely to be telling the truth[.]” Hennington v. State, 702 So.2d 403, 415-16 (¶ 54) (Miss.1997) (quoting Griffith v. State, 584 So.2d 383, 388 (Miss. 1991)). As the rule and its official comment states, this finding should be made: (1) “on the record,” M.R.E. 803(25) cmt., (2) “in a hearing conducted outside the presence of the jury.” M.R.E. 803(25). Consequently, both the Mississippi Supreme Court and this court have held the failure to conduct a separate reliability hearing and make an on-the-record finding about the reliability of the statements is error — albeit potentially harmless error. Rogers v. State, 95 So.3d 623, 629 (¶ 19) (Miss.2012) (applying harmless-error analysis when State conceded there was no separate hearing outside the jury’s presence and no reliability finding); Klauk v. State, 940 So.2d 954, 956-57 (¶¶ 6-8) (Miss. Ct.App.2006) (applying harmless-error analysis to absence of on-the-record finding of statements’ reliability).

¶24. To make this on-the-record finding, the trial judge must consider twelve factors, which are listed in Rule 803(25)’s official comment. But we have held that a sufficient on-the-record finding of reliability does not require “each factor be listed and discussed separately by the trial judge.” Bosarge v. State, 786 So.2d 426, 437 (¶ 32) (Miss.Ct.App.2001).

¶25. After the separate hearing in which Hope, Tashanda, and Daniels testified, the trial judge made the overall finding that Hope was particularly likely to be telling the truth about Webb’s sexually abusing her. This finding was on the record. And while the judge did not list each reliability factor, he stated for the record that he had carefully considered each of them. He also emphasized several factors that weighed in his decision that Hope’s statements were reliable: (1) Tashanda testified Hope told the truth on regular occasions; (2) Daniels testified Hope seemed credible and that her statements were consistent with a child who has been sexually abused; and (3) Hopes own video-recorded statement that was introduced at the hearing appeared to be spontaneously made and consistent with the statements she had made to others. Further, the judge specifically found there was no motive for Hope to make up the allegations — instead, Hope for years tried to cover up Webb’s actions to protect her mother. See Veasley, 735 So.2d at 436 (¶ 11) (excusing a child-abuse victim’s delay in “making the complaint . -.. [when] it is caused by fear or other equally effective circumstances” (citation omitted)). Because the trial judge supported his finding with substantial evidence, we find no abuse of discretion in his finding Hope’s statements to the corroborating witnesses were reliable.

¶ 26. The trial judge found there were “indeed substantial indicia of reliability concerning all these statements” — not just the ones to Tashanda and Daniels. Webb asserts that, because there was no way for the trial judge to know Hope’s statements to the other corroborating witnesses were reliable until he heard from those witnesses in a hearing outside the jury’s presence, the failure to proffer these witnesses’ testimony was reversible error.

¶ 27. First, we note the lack of a proffer, was at the State and Webb’s counsel’s consent. But since that consent was apparently given in an off-the-record conference, we hesitate to find waiver, especially since the State acknowledged Webb’s continuing objection to the hearsay testimony.

¶ 28. Second, despite no on-the-record proffer, the record does show the trial judge ■ was apprised of the statements Hope made to these other witnesses. Hope herself testified at the pretrial hearing — in person and through her MCAC interview — about these statements. And the judge found these additional statements were reliable because they were consistent with Hope’s disclosures to her mother and the MCAC. We acknowledge one of the twelve reliability factors is “the credibility of the person testifying about the statements.” M.R.E. 803(25) cmt. And without a proffer, the trial judge could not weigh the corroborative witnesses’ credibility prior to their testifying. But this factor is but one of twelve, which all drive at “whether the child declarant was particularly likely to be telling the truth when the statements] [were] made.” Hennington, 702 So.2d at 415 (¶ 54). Because we find the trial judge, through evidence presented at the pretrial hearing, had sufficient evidence to admit Hope’s statements to all the witnesses through the< tender-years exception, we find no error.

3. Harmless Error

¶ 29. Even if it was error to admit these additional witnesses’ testimony without first considering it in a separate hearing, we find such error harmless.

¶ 30. In Klauk, this court applied harmless-error analysis to the failure to conduct an on-the-record finding of indicia of reliability. Klauk, 940 So.2d at 956-57 (¶ 7) (citing Veasley, 735 So.2d at 437 (¶ 17)). Under the harmless-error test, this court “must determine whether the weight of the evidence against the defendant is sufficient to outweigh the harm done by allowing admission of the evidence.” Veasley, 735 So.2d at 437 (¶ 17) (quoting Fuselier v. State, 702 So.2d 388, 391 (¶ 9) (Miss.1997)). In Klauk, we found, even without the hearsay testimony, the victim’s testimony was sufficient to convict the perpetrator. Klauk, 940 So.2d at 957 (¶ 8).

¶ 31. Here, even without the tender-years witnesses whose testimony was not proffered, there was strong evidence against Webb. Hope testified that, beginning when she was eleven, “[Webb] would touch [her] inappropriately” on her private areas. “These things” went on for three years, progressing to oral sex. Hope admitted she hid Webb’s actions from her mother: “I knew that she was in love with this man, she had three kids by him, and I didn’t want to disrupt the family like that.” But Hope broke her silence when Webb raped her. Hope described the assault to the jury:

Jeff had called me up to the den and [said] that he wanted to talk to me, which he actually didn’t, and he told me to get on the floor. And I pushed him. He just told me to just get on the floor. And that’s when he pulled my pants down and he tried to, well he did ... rape[ ] me.

The jury also watched the video of Hope’s interview with the MCAC, whose admission is not in dispute. And they heard corroborating testimony by Tashanda and Daniels. Dr. North testified Hope’s hymen was torn — an indicator of intercourse. Sergeant Myers and Moyse also testified about the physical evidence implicating Webb.

¶ 32. Since the weight of the remaining evidence heavily outweighs any harm done by applying the tender-years doctrine without first proffering the testimony of the corroborating witnesses, we find no reversible error.

C. Weight of the Evidence

¶ 33. For the same reason, we reject Webb’s argument that the jury’s verdict was contrary to the overwhelming weight of the evidence. “[W]e will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). No such injustice would be present here. Weighing the above evidence in the light most favorable to the verdict, we find the weight of the evidence supports Webb’s conviction of all three crimes.

D. Cumulative Evidence

¶ 34. We also reject Webb’s argument that, because the corroborative evidence was cumulative to Hope’s testimony, the trial judge abused his discretion in admitting this evidence. Not only is this argument waived, it also lacks merit.

¶ 35. Webb argues the trial judge erred by failing to conduct the balancing test of Mississippi Rule of Evidence 403, which permits the trial judge to exclude admissible evidence “if its probative value is substantially outweighed ... by considerations of ... needless presentation of cumulative evidence.” But Webb never asked the trial judge to consider the cumulative nature of the testimony because he made no Rule 403 objection at trial. With the exception of Alaya, Webb’s only objection to the corroborative witnesses’ testimony was that it was inadmissible hearsay, not that it was needlessly cumulative. See Rodgers v. State, 777 So.2d 673, 675 (¶8) (Miss.Ct.App.2000) (citation omitted) (holding an “objection on one ground at trial waives all other grounds on appeal”). “It is well-settled law that ‘objections to the admissibility of evidence must specifically state the grounds, otherwise the objection is waived.’ ” Id. (quoting Oates v. State, 421 So.2d 1025,1030 (Miss.1982)).

¶ 36. The only witness for which Webb did not waive a cumulativeness objection is Alaya — and the reason Webb objected was that Alaya was present when Hope told her friend Morgan about Webb’s abuse, and Morgan had just testified. Because the trial judge overruled the objection after considering its probative value, we find no abuse of discretion in admitting Alaya’s testimony.

¶ 37. Further, the supreme court has held: “Where corroborative evidence exists and the hearsay evidence is merely cumulative, the admission may be held to be harmless.” Young v. State, 679 So.2d 198, 203 (Miss.1996) (citing Jones v. State, 606 So.2d 1051, 1057 (Miss.1992)). So the fact that the corroborative witnesses’ testimony was cumulative to Hope’s testimony, instead of compounding any error, as Webb argues, actually contributed to the harmlessness of its admission.

¶ 38. Hope had to testify to satisfy Rule 803(25). Thus, her testimony, contrary to Webb’s assertions, qualified rather than disqualified the other witnesses’ hearsay testimony for admission through the tender-years exception.

II. Ineffective Assistance of Counsel

¶39. Webb additionally argues his trial counsel was ineffective for (1) failing to object to the hearsay evidence, which was also cumulative, and (2) “general errors and omissions.” Since the trial record is insufficient to evaluate Webb’s claim, we deny the claim without consideration, preserving the claim for a motion for post-conviction relief. See Aguilar v. State, 847 So.2d 871, 878 (¶ 17) (Miss.Ct. App.2002) (citing Read v. State, 430 So.2d 832, 837 (Miss.1983)).

¶40. Webb acknowledges this court’s general practice of not considering claims of ineffective assistance of counsel on direct appeal, where there is usually insufficient evidence in the trial record to evaluate the claim. See id. (citing Edwards v. State, 797 So.2d 1049, 1060 (¶ 30) (Miss.Ct. App.2001)). But he argues his direct appeal presents one of the “rare occasions” where we can rule on the merits of the claims.

41. We only consider an ineffective-assistance-of-counsel claim on direct appeal when: “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Id. (quoting Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct. App.1999)). While Webb stipulates the record is adequate, the State does not. With no stipulation by both parties and no apparent “ineffectiveness of constitutional dimensions” in the trial record, we will not address the merits of Webb’s claims — particularly when Webb is claiming his counsel did not adequately object to the hearsay witnesses, and the bench conference in which his counsel agreed to admit the tender-years witnesses without a proffer is not part of the trial record.

1142. We affirm.

¶ 43. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SEXUAL BATTERY, AND SENTENCE OF THIRTY YEARS; COUNT II, STATUTORY RAPE, AND SENTENCE OF THIRTY YEARS; AND COUNT III, GRATIFICATION OF LUST, AND SENTENCE OF FIFTEEN YEARS, WITH ALL SENTENCES TO RUN CONSECUTIVELY, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Hope is a fictitious name, used due to the young age of the victim and the nature of the crimes against her. To further protect her, only the first names of her friends and mother are used.

      . These ten witnesses were:
      (1) Amber (friend in whom Hope confided when Hope was eleven),
      (2) Morgan (friend in whom Hope confided when Hope was thirteen),
      (3) Alaya (friend in whom Hope confided when Hope was thirteen),
      (4) Pierre (friend in whom Hope confided when Hope was fourteen),
      (5) Norton (school counselor in whom Hope confided when Hope was fourteen),
      (6) Tashanda (Hope's mother in whom Hope confided when Hope was fourteen),

        (7) Daniels (interviewer with MCAC, where Hope was interviewed when Hope was fourteen),
      (8) Monica Weathersby (DHS family-protection specialist who interviewed Hope when she was fourteen),
      (9) Carlotta Bacon (child-protection detective for the Jackson Police Department (JPD), who interviewed Hope when she was fourteen), and
      (10) Jennifer Skinner (a clinical social worker who interviewed Hope when she was fourteen).

      . These factors, often referred to as the Wright factors, e.g., Hennington, 702 So.2d at 415-17 (¶¶ 54, 62) (citing Idaho v. Wright, 497 U.S. 805, 821-22, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)), include:
      (1) whether there is an apparent motive on declarant’s part to lie;
      (2) the general character of the declarant;
      (3) whether more than one person heard the statements;
      (4) whether the statements were made spontaneously;
      (5) the timing of the declarations;
      (6) the relationship between the declarant and the witness;
      (7) the possibility of the declarant’s faulty recollection is remote;
      (8) certainty that the statements were made;
      (9) the credibility of the person testifying about the statements;
      (10) the age or maturity of the declarant;
      (11) whether suggestive techniques were used in eliciting the statement; and
      (12) whether the declarant’s age, knowledge, and experience make it unlikely that the declarant fabricated.
      M.R.E. 803(25) cmt.


author: RUSSELL, J.,

text:
    Hulen S. PERILLOUX a/k/a Hulen Stanley Perilloux, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01405-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    Rehearing Denied May 21, 2013.

      Leslie S. Lee, Jackson, Karl Crawford Hightower, George T. Holmes, Jackson, Phillip Broadhead, Oxford, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before IRVING, P.J., BARNES and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Hulen Stanley Perilloux was indicted for three counts of fondling in November 2010. Perilloux was tried before a jury in the Pearl River County Circuit Court, convicted of all three charges, and sentenced to fifteen years on each count to run concurrently. Perilloux appeals his conviction and asserts that the circuit court erred by: (1) admitting cumulative and prejudicial evidence without conducting a proper Rule 403 balancing test; (2) denying his motion to set aside the jury’s verdict for legal insufficiency, or alternatively, denying his motion for a new trial where the verdict was against the overwhelming weight of the evidence; and (3) giving the prosecution’s jury instruction where the instruction contained an incorrect statement of the law, was without foundation in the evidence, and was designed to inflame passion and invoke sympathy during deliberations. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. G.R. and A.R. live in Floresville, Texas, with their father. However, both children stay with their grandmother, Judith Perilloux (Judith), and their step-grandfather (Perilloux) every summer in Picayune, Mississippi. In June 2010, G.R. and A.R. stayed in Mississippi for approximately three weeks.

¶ 3. On June 28, 2010, Perilloux was arrested after Judith filed a complaint alleging that Perilloux had sexually assaulted G.R., and on November 19, 2010, a Pearl River County grand jury indicted Perilloux on three counts of fondling. Per-illoux was subsequently tried before a jury in the Pearl River County Circuit Court.

¶4. At the close of the prosecution’s case-in-chief, Perilloux motioned for a directed verdict, which was denied. The defense then rested its case-in-chief without calling any witnesses. On August 26, 2011, the jury returned a guilty verdict on all three counts, and on August 31, 2011, the circuit court sentenced Perilloux to fifteen years on each count, to run concurrently. On September 2, 2011, Perilloux filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied. On September 20, 2011, Perilloux filed notice of this appeal.

DISCUSSION

I. Whether the circuit court erred when it admitted cumulative and prejudicial testimony without conducting a proper Rule 403 balancing test.

¶ 5. Perilloux argues that the circuit court erred in admitting cumulative and prejudicial testimony without conducting a proper Rule 403 balancing test, thus denying him a fair trial. We disagree.

¶ 6, Mississippi Rule of Evidence 403 provides: “[Ejvidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” “This determination on admissibility is highly discretionary because Rule 403 ‘does not mandate exclusion but rather provides that the evidence may be excluded.’ ” Hudson v. State, 977 So.2d 344, 347 (¶ 17) (Miss.Ct.App.2007) (quoting Jones v. State, 904 So.2d 149, 152 (¶7) (Miss. 2001)). “Our review is confined to ‘simply determining] whether the trial court abused its discretion in weighing the factors and in admitting or excluding the evidence.’ ” Id. “A Rule 403 analysis ‘asks only that a judge rely on his/her own sound judgment.’ ” Hudson, 977 So.2d at 347 (¶ 17) (quoting Jones v. State, 920 So.2d 465, 476-77 (¶ 33) (Miss. 2006)). Furthermore, our supreme court stated in Jones: “[W]e do not interpret this requirement to be a regimented procedure[.] Though this Court certainly expects trial judges to have considered Rule 403 in making their evidentiary rulings, we certainly do not predicate the soundness of these determinations on the express use of magic words[.]” Jones, 920 So.2d at 476 (¶ 34); see also Hoops v. State, 681 So.2d 521, 581 (Miss.1996) (finding that although the trial judge “failed to use the ‘magic words’ that he did not find the danger of unfair prejudice to substantially outweigh the probative value of [the] evidence, he implicitly made that determination.”).

¶ 7. Perilloux argues that the circuit court abused its discretion in allowing G.R. to testify eight times that Perilloux “touched [him] in the middle part.” He argues that such testimony was both cumulative and prejudicial. However, we must note that it was only after the eighth statement that Perilloux objected, and his objection was to the prejudicial nature of G.R.’s testimony. Because Perilloux did not object to the cumulative nature of the testimony, we will not address that issue on appeal. The statement that Perilloux touched G.R. in the “middle part” when used to describe the part of the body touched by Perilloux is not prejudicial. It cannot be forgotten that one reference to each occurrence in the three-count indictment would be more than one-third of the eight references cited by Perilloux. The record reflects the court’s efforts to weigh the probative value of the witness’s testimony against any prejudicial impact. The circuit court did not abuse its discretion in admitting G.R.’s testimony.

¶ 8. Perilloux also argues that the circuit court erred in admitting testimony consistent with G.R.’s statements through three additional witnesses: (1) A.R., (2) Judith, and (3) Detective Christa Groom. Perilloux again argues that the testimony from these witnesses was both cumulative and prejudicial. However, we recognize that “the State has a ‘legitimate interest in telling a rational and coherent story of what happened!.]’” Brown v. State, 483 So.2d 328, 330 (Miss.1986) (quoting Turner v. State, 478 So.2d 300, 301 (Miss.1985)). Because the statements of the three additional witnesses were necessary to tell a rational and coherent story of what happened, the circuit court did not abuse its discretion in admitting the testimony of these -witnesses.

9. Finally, Perilloux argues that the circuit court erred in not conducting a proper Rule 403 balancing test. Specifically, Perilloux argues that the circuit court abused its discretion when it allowed the testimony without balancing the danger of unfair prejudice against the testimony’s probative value. However, as stated, no magic words are required when conducting a Rule 403 balancing test. In Hoops, although the trial judge “failed to use the ‘magic words’ that he did not find the danger of unfair prejudice to substantially outweigh the probative value of [the] evidence,” our supreme court reasoned that “a Rule 403 analysis was implicitly conducted by the trial court because the trial court heard argumentfs] from both parties on the subject before ruling that the evidence was admissible!.]” Hudson, 977 So.2d at 351 (¶ 37). Here, the circuit court judge considered the testimony from each witness and heard arguments from both parties before ruling that the evidence was admissible. Therefore, the circuit court did not fail to conduct a proper Rule 403 balancing test.

¶ 10. Because the circuit court did not err in admitting G.R.’s testimony or the testimony of the three additional witnesses, and because the circuit court conducted a proper Rule 403 balancing test, Perilloux was not denied his right to a fair trial. Therefore, we find this issue to be without merit.

II. Whether the circuit court erred when it denied Perilloux’s motion to set aside the jury’s verdict for legal insufficiency or, alternatively, when it denied his motion for a new trial where the verdict was against the overwhelming weight of the evidence.

¶ 11. Perilloux argues that the prosecution did not present a legally sufficient case, and therefore, the circuit court erred in denying him a directed verdict. In the alternative, Perilloux argues that the overwhelming weight of the evidence did not support the jury’s verdict, and therefore, the circuit court erred in denying his motion for a new trial. We disagree with both arguments.

A. Legal Insufficiency

¶ 12. Perilloux argues that the circuit court erred when it denied his motion to set aside the jury’s verdict for legal insufficiency. Specifically, Perilloux argues that no evidence was presented that he fondled G.R. on three separate occasions.

¶ 13. “When reviewing a case for sufficiency of the evidence, ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Ford v. State, 975 So.2d 859, 869 (¶ 35) (Miss. 2008) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)).

¶ 14. At trial, G.R. testified that Peril-loux touched him while he was in the bed, on the couch, and on the pallet:

Q. When he would touch you, where would you be?
A. In the bed, on the couch, or on the pallet.
Q. Did he touch you while you were in all three of those places?
A. Yes, ma’am.

1.A.R.’s testimony

¶ 15. Corroborating G.R.’s testimony, A.R. testified that she and G.R. would usually sleep in the front bedroom; however, when their cousin visited, G.R. would sleep on the couch or on a pallet. A.R. stated that in the mornings, Perilloux would wake her up and tell her to go sleep with Judith, leaving G.R. alone in the bedroom. A.R. further testified that one night, while she and G.R. were play fighting, G.R. told her that he knew something about Perilloux. At that point, G.R. told A.R. about Perilloux touching him in the “middle part,” and A.R. insisted that G.R. tell Judith the following morning.

2.Judith’s testimony

¶ 16. Judith testified that on Saturday, June 26, 2010, G.R. told her that Perilloux had touched him in the “middle part.” Judith then testified as to the sequence of events that took place. Judith stated that she and G.R. confronted Perilloux that afternoon, and on Sunday, June 27, 2010, she filed a complaint of sexual assault with the Picayune Police Department.

3.Detective Groom’s testimony

¶ 17. Detective Christa Groom, investigating officer for the Pearl River County Sheriffs Department, testified that she was assigned to investigate the case, and on Monday, June 28, 2010, she met with both Judith and G.R. Detective Groom further testified that during the investigation, G.R. told her that Perilloux had touched him in the “middle part.” At the conclusion of the investigation, Detective Groom obtained a warrant, and Perilloux was arrested.

¶ 18. Our supreme court has held: “[T]he unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where the testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime.” Cross v. State, 759 So.2d 354, 356 (¶ 11) (Miss.1999) (citing McKinney v. State, 521 So.2d 898, 899 (Miss.1988)). Viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Furthermore, a reasonable trier of fact could have found that three separate incidents of fondling had occurred: once in the bed, once on the couch, and once on the pallet. Therefore, Perilloux’s argument that the prosecution did not present a legally sufficient case is without merit.

B. Weight of the Evidence

¶ 19. In the alternative, Perilloux argues that the circuit court erred when it denied his motion for a new trial where the verdict was against the overwhelming weight of the evidence. Perilloux contends that the evidence against him was so weak that it justified a new trial. However, Perilloux contradicts his own argument for legal insufficiency with his argument that there was, in fact, evidence that fondling occurred on three separate occasions but that the only evidence of this was G.R.’s testimony.

¶ 20. “[T]he unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where the testimony is not discredited or contradicted by other credible evidence!.]” Cross, 759 So.2d at B56 (¶ 11) (citing McKinney, 521 So.2d at 899). Furthermore, “it is ... within the province of the jury to determine the credibility of witnesses.” Id. at (¶ 12). Here, G.R.’s testimony was neither discredited nor contradicted by other evidence.

¶ 21. “We review the trial court’s denial of a motion for a new trial under the abuse of discretion standard of review.” Lafont v. State, 9 So.3d 1143, 1144 (¶ 6) (Miss.Ct.App.2008) (citing Dunn v. State, 891 So.2d 822, 826 (¶24) (Miss. 2005)). “On appeal, ‘[w]e will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Id. at 1145 (¶ 6) (quoting Bush, 895 So.2d at 844 (¶ 18)). Because it would not sanction an unconscionable injustice to uphold the verdict, this Court finds the verdict is not against the overwhelming weight of the evidence.

III. Whether the circuit court erred when it gave the prosecution’s jury instruction where the instruction contained an incorrect statement of the law, was without foundation in the evidence, and was designed to inflame passion and invoke sympathy during jury deliberations.

¶ 22. Perilloux argues that the circuit court erred in giving a jury instruction that was an incorrect statement of law, without foundation in the evidence, and designed to inflame passion and invoke sympathy during jury deliberations. We disagree.

¶23. “We review [jury] instructions as a whole ‘to determine if the jury was properly instructed,’ giving abuse-of-discretion deference to the trial judge’s decision.” Flowers v. State, 51 So.3d 911, 912 (¶ 5) (Miss.2010) (citation omitted). “[I]f the instructions fairly announce the law and create no injustice, no reversible error will be found.” Walker v. State, 913 So.2d 198, 232 (If 124) (Miss. 2005) (citing Collins v. State, 691 So.2d 918, 922 (Miss.1997)). “ ‘[D]efects in specific instructions will not mandate reversal when all of the instructions, taken as a whole fairly — although not perfectly — announce the applicable primary rules of law.’ ” Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450, 474 (¶ 78) (Miss. 2010).

¶ 24. The jury instruction at issue reads as follows:

THE COURT INSTRUCTS THE JURY THAT IT IS IMMATERIAL WHETHER THE CHILD MOLESTATION CHARGED WAS ACCOMPLISHED BY FORCE OR VIOLENCE OR AGAINST THE WILL OF [G.R.], OR WHETHER [G.R.] RESISTED, BECAUSE [G.R.] WAS UNDER THE AGE OF CONSENT.

¶ 25. Perilloux argues that this instruction was improper because the words “force and violence” are not part of the relevant statute. However, we find that the jury instruction merely added an additional element, as force and violence are not required to prove fondling. Furthermore, after reviewing the jury instructions as a whole, we find that the instructions fairly and adequately state the law. For these reasons, we find this issue to be without merit.

CONCLUSION

¶ 26. Because we find Perilloux’s claims to be without merit, we affirm the judgment of the Pearl River County Circuit Court.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY OF CONVICTION OF COUNT I, FONDLING, AND SENTENCE OF FIFTEEN YEARS; COUNT II, FONDLING, AND SENTENCE OF FIFTEEN YEARS; AND COUNT III, FONDLING, AND SENTENCE OF FIFTEEN YEARS, WITH THE SENTENCES IN ALL COUNTS TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

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

      . To protect the identities of the children, we have substituted initials in place of their names.

      . There is a discrepancy as to the exact dates: June 4-28, 2010, or June 5-27, 2010.

      . "Middle part” was specifically identified by G.R. as that part of his body below the waist where he used the bathroom.

      . Perilloux objected to both the cumulative and prejudicial nature of the testimony with respect to A.R.’s testimony. However, as to Judith's and Detective Groom's testimony, Perilloux only objected to the cumulative nature of the testimony.

      . Mississippi Code Annotated section 97-5-23 (Rev.2006) reads in pertinent part:
      Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child’s consent, or a mentally defective, mentally incapacitated or physically helpless person as defined in section 97-3-97, shall be guilty of a felony[.]