author:
WALLER, Chief Justice, DICKINSON, Presiding Justice,
      RANDOLPH, Presiding Justice,

text:
    Derrick Montrell HENLEY v. STATE of Mississippi.
    No. 2013-KA-00164-SCT.
    Supreme Court of Mississippi.
    April 17, 2014.

      Edmund J. Phillips, Jr., attorney for appellant.
    Office of the Attorney General by Elliott George Flaggs, John R. Henry, Jr., attorneys for appellee.
    Before WALLER, C.J., KITCHENS and COLEMAN, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Derrick Montrell Henley appeals the verdict of a Neshoba County Circuit Court jury finding him guilty of possession of burglary tools. We find that the State failed to present sufficient evidence that Rice intended to use the tools in question to aid in the commission of a burglary. Accordingly, we reverse and render Henley’s conviction and sentence.

FACTS

¶ 2. The events of this case occurred at Central Mississippi Recycling in Philadelphia, Mississippi,- just after midnight on June 20, 2011. Central Mississippi Recycling consists of a main office building and four other buildings. The property has one main entrance and four secondary entrances. When the business is closed, the main entrance is secured by a “gate” consisting of a metal cable hanging across the driveway. When property manager Gene Luke left the property on June 19, 2011, he made sure that the gate to the main entrance was locked.

¶ 3. Due to several previous burglaries at Central Mississippi Recycling, the Philadelphia Police Department had increased its patrol of the area. Sometime after midnight on June 20, 2011, Officer Jonathan Dearing was patrolling near Central Mississippi Recycling when he noticed that the gate to the main entrance of the property had been laid on the ground. He pulled onto the property, exited his vehicle, and checked the gate. The cable appeared to have cut marks on it, and the cable clamps for the gate had been loosened, which had caused the cable to fall to the ground. Dearing returned to his vehicle, drove over the cable, and began to investigate the rest of the property. After driving around the property for some time, Dearing observed a vehicle driving with its headlights off around the side of one of the buildings. Upon noticing Dearing, the vehicle turned around, turned its lights on, and started to leave the property. Dear-ing then initiated his blue lights and stopped the vehicle approximately three hundred yards from the main entrance of the property.

¶ 4. Dearing approached the vehicle and asked the driver what he was doing on the property. The driver responded that he was looking for a place to turn around. Dearing asked the driver for identification, but the driver had none, explaining that his license had been suspended. The driver then told Dearing that his name was Derrick Henley and gave Dearing his social security number. At that point, Dear-ing noticed pliers and bolt cutters on the floor of Henley’s vehicle. Screwdrivers, wrenches, and a socket set also were found in Henley’s car. Dearing asked Henley to exit the vehicle and searched him, finding a flashlight in Henley’s pocket.

¶ 5. Henley was taken into custody and questioned by Lieutenant Dan Refre of the Philadelphia Police Department. Henley denied any involvement in any criminal activity and explained that he was merely turning around in the Central Mississippi Recycling parking lot when he was pulled over.

PROCEDURAL HISTORY

¶ 6. Henley was indicted for possession of burglary tools in violation of Section 97-17-35 of the Mississippi Code. See Miss.Code Ann. § 97-17-35 (Rev.2006). His indictment alleged that he “did willfully, unlawfully and feloniously possess tools designed to aid in the commission of a burglary, to-wit: bolt cutters, pliers and a flashlight[.]” A jury trial was held on November 7, 2012, in the Neshoba County Circuit Court. Luke, Dearing, and Refre testified for the State. The bolt cutters and pliers found in Henley’s vehicle and the flashlight found on his person were admitted into evidence during the State’s case-in-chief. At the conclusion of the State’s case-in-chief, Henley moved for a directed verdict, arguing that the State had failed to prove that he had possessed the tools with the intent to commit a burglary. The trial court overruled Henley’s motion, and Henley declined to offer any evidence in defense. During closing arguments, Henley’s attorney argued that Henley had the tools in his vehicle because he worked as a mechanic and asserted that the bolt cutters showed no signs of use. Henley also requested that the Court give a peremptory instruction, which instructed the jury to find Henley not guilty, but this request was denied.

¶ 7. The jury returned a unanimous verdict finding Henley guilty of possession of burglary tools, and the court sentenced him to five years’ imprisonment. Henley moved for a new trial, but the trial court denied his motion. Henley now appeals to this Court, arguing that the trial court erred in denying Henley’s motion for a directed verdict, his request for a peremptory instruction, and his request for a new trial. Because we find that the State’s evidence in this case was legally insufficient to secure a guilty verdict, we will discuss only Henley’s argument regarding the trial court’s denial of his motion for directed verdict and request for peremptory instruction.

STANDARD OF REVIEW

¶ 8. Both a motion for a directed verdict and a request for a peremptory instruction challenge the legal sufficiency of the evidence; thus, the standard of review for peremptory instructions and directed verdicts is the same. Wall v. State, 718 So.2d 1107, 1111 (Miss.1998). This Court reviews a challenge to the sufficiency of the evidence in the light most favorable to the State, giving the State the benefit of all favorable inferences reasonably drawn from the evidence. Graham v. State, 120 So.3d 382, 386-87 (Miss.2013) (citations omitted). “If the facts and infer-enees so considered 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. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)) (emphasis in original). We review a challenge to the sufficiency of the evidence on the last occasion that the trial court ruled on the sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). In this case, the last occasion on which the trial court ruled on the sufficiency of the evidence was in its denial of Henley’s request for a peremptory instruction.

DISCUSSION

I. Whether the trial court erred in denying Henley’s request for a peremptory instruction.

¶ 9. Henley argues that he was entitled to a peremptory instruction because the evidence presented by the State was legally insufficient to prove that he intended to use the tools in question to aid in the commission of a burglary.

¶ 10. Section 97-17-35 of the Mississippi Code makes it unlawful “for any person to have in his possession implements, tools, or instruments designed to aid in the commission of burglary, larceny or robbery[.]” Miss.Code Ann. § 97-17-35 (Rev.2006). This Court has interpreted the statute to include the following elements: “(1) adaptation and design of the tool or implement for breaking and entering; (2) possession of such tools by one with knowledge of their character, and (3) a general intent to use or employ them in breaking and entering.” Pamphlet v. State, 271 So.2d 403, 405 (Miss.1972) (citing Johnson v. State, 246 Miss. 182, 145 So.2d 156 (1962)). The elements of the design of the tool and the intent to use the tool are interrelated. Regarding the adaptation and design of the tool, this Court has held that “[I]t is not necessary that the tool or article be designed and made solely for use as a burglar’s tool.” Fuqua v. State, 246 Miss. 191, 199, 145 So.2d 152, 154 (1962). Whether the tools described in the indictment were intended to be used as burglary tools is a question for the jury. Salisbury v. State, 293 So.2d 434, 437 (Miss.1974). However, “[t]he carrying concealed about one’s person, or in one’s baggage, implements, tools, or instruments peculiarly adapted to aid in the commission of burglary, larceny or robbery, shall be prima facie evidence of intention to use them for such purpose.” Miss.Code Ann. § 97-17-35 (Rev.2006) (emphasis added). As for the defendant’s intent, this Court has held that “[ajlthough it is not necessary to show a specific intent to use the tools in a burglary, there must be evidence either that the tools have probably been recently used for the purpose of unlawfully breaking and entering or that they are about to be used for such purpose.” Pamphlet, 271 So.2d at 405 (citing McCollum v. State, 197 So.2d 252 (Miss.1967)).

¶ 11. While this Court has held that possession of ordinary tools can be punishable under Section 97-17-35, we also have recognized an “underlying harmony in our opinions as to adaptation of ordinary articles and tools used to burglarize.” Salisbury, 293 So.2d at 436 (emphasis added). “The outstanding evidence in each case [involving the possession of otherwise ordinary tools] points to at least one of the tools readily recognized as a burglary tool.” Id. For example, in Fuqua, the defendant had in his possession spotlights, a box of socket wrenches, a pair of black gloves, a large flashlight, a keyhole flashlight, and two large magnets, all of which are susceptible to innocent use. Fuqua, 246 Miss. at 197, 145 So.2d 152. However, the defendant also possessed a box of 150 skeleton keys, recognized as tools peculiarly adapted to aid in the commission of a burglary, along with a police badge and a stolen firearm. Id. at 198, 145 So.2d 152. This Court affirmed the defendant’s conviction for possession of burglary tools, finding that his unexplained possession of the numerous skeleton keys was “strong evidence that they were possessed for a felonious purpose.” Id. at 200, 145 So.2d 152. The other articles found in the defendant’s possession were described by this Court as “useful adjuncts to burglar’s tools,” and the defendant’s possession of them became unlawful when the evidence showed that the defendant intended to use them in combination with the skeleton keys and firearms for an unlawful purpose. Id. at 199, 145 So.2d 152. See also McCollum, 197 So.2d at 256 (possession of crowbars, hammers, and a bolt cutter, along with a “burglar alarm jumper,” a device used to circumvent the “setting off’ of a burglar alarm); Corn v. State, 250 Miss. 157, 159, 164 So.2d 777, 778 (1964) (possession of sledgehammer to which a chisel had been welded, a tool commonly used by burglars to break open safes).

¶ 12. In each of the cases cited above, the defendant’s concealed possession of a tool peculiarly designed to aid in the commission of a burglary — skeleton keys, a burglar alarm jumper, a modified sledgehammer — served as prima facie evidence of the defendant’s intent to use that tool in the commission of a burglary. However, this Court has never affirmed a defendant’s conviction for possessing burglary tools in a case where the evidence did not point to at least one tool peculiarly designed as a burglary tool. The Court of Appeals has affirmed a defendant’s conviction in such a case, but only upon proof that the defendant actually had committed a burglary. Peters v. State, 920 So.2d 1050, 1058 (Miss.Ct.App.2006). In Peters, the defendant was charged with possession of burglary tools, and with the burglary of two county-owned mechanic shops. Id. Police officers recovered a small crowbar, wire cutters, vice grips, two screwdrivers, and a pair of sunglasses from the defendant’s vehicle. Id. At the defendant’s trial, a shop employee testified that the sunglasses belonged to him and had gone missing after the burglary. Id. He also recognized the wire cutters and screwdrivers as tools used in the shop, but he did not recognize the crowbar. Id. The State also presented an expert witness who testified that shoeprints found at the crime scenes possessed “all the class characteristics” of the shoes the defendant was wearing when he was arrested. Id. On appeal, the defendant argued that the crowbar he possessed was an ordinary tool, and that the State had failed to prove that he intended to use the crowbar for an unlawful purpose. Id. at 1054. The Court of Appeals rejected this argument, finding that the State’s evidence was sufficient “to show beyond a reasonable doubt that Peters possessed the crowbar knowing of its character, and that he intended to use, or had in fact used the crowbar to burglarize the county property.” Id. at 1055.

¶ 13. This Court has reversed a defendant’s conviction based on the State’s failure to prove the element of felonious intent where the defendant possessed only ordinary tools. Pamphlet v. State, 271 So.2d 403 (Miss.1972). In Pamphlet, a tow-truck operator was towing the defendant’s car out of a ditch when he noticed various tools inside the vehicle. Id. at 403-404. The truck operator informed a police officer of what he had seen in the vehicle. Id. at 404. The officer arrived at the scene, observed the tools inside the vehicle, and placed the defendant under arrest. Id. The officer then searched the car and found a pistol and some ammunition in the trunk. Id. The defendant was convicted of possession of burglary tools, but this Court reversed the conviction, finding that the State had presented no evidence showing that the defendant had intended to use the tools to commit a burglary. Id. The officer was not investigating a burglary, there was no evidence of an attempted burglary, and there was no proof that the defendant had used the tools found in his vehicle for any unlawful purpose or that he had intended to do so. Id. The evidence presented to the jury proved only that the defendant had unconcealed, ordinary tools lying on the back seat and floorboard of his car. Id. at 405. Because the State had presented insufficient evidence of felonious intent, this Court held that the trial court had erred in refusing to give the defendant’s peremptory instruction. Id. at 404.

¶ 14. Viewing the evidence in the light most favorable to the prosecution, we find that the evidence in this case is more akin to Pamphlet than Peters. Henley does not contest his possession of the tools in question, but none of the tools he possessed was peculiarly adapted to be used as a burglary tool. Therefore, the State was required to present more specific evidence “either that the tools have probably been recently used for the purpose of unlawfully breaking and entering or that they are about to be used for such purpose.” Pamphlet, 271 So.2d at 404. We find that the State presented no such proof. Dearing was not investigating a burglary, nor was there any evidence of an attempted burglary, when Henley was discovered on the property. The State presented evidence that the gate to the property’s front entrance had cut marks on it, but there was no proof that Henley’s bolt cutters, or any bolt cutters for that matter, had produced the cut marks. Henley’s presence on the property after business hours may raise suspicion, but this evidence alone fails to prove that he intended to use the tools in question to aid in the commission of a burglary. Unlike the defendant in Peters, who was found in possession of stolen property and whose shoes matched prints at the scene of a burglary, Henley was simply found in his vehicle with unconcealed tools that any mechanic or handyman would likely possess. The jury could only speculate regarding Henley’s intent for possessing those tools. After reviewing the record in this case, we find that the State failed to present sufficient evidence “revealfing] circumstances from which it may be inferred beyond a reasonable doubt that [Henley] intended that he ... use the article or articles in aid of [a] burglary or other similar crime.” Fuqua, 246 Miss. at 199, 145 So.2d 152. Accordingly, we find that the trial court should have granted Henley’s request for a peremptory instruction.

II. Whether the trial court erred in denying Henley’s motion for new trial.

¶ 15. Because we are reversing the trial court’s judgment based on the sufficiency of the evidence, it is unnecessary to discuss the weight of the evidence in this case.

CONCLUSION

¶ 16. Because the State failed to present evidence sufficient to prove Henley’s felonious intent beyond a reasonable doubt, we reverse and render Henley’s conviction and sentence.

¶ 17. REVERSED AND RENDERED.

KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., LAMAR AND PIERCE, JJ. RANDOLPH, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., LAMAR AND PIERCE, JJ.

DICKINSON, Presiding Justice,

dissenting:

¶ 18. Because the State presented sufficient evidence to sustain a conviction for possession of burglary tools, I respectfully dissent.

¶ 19. When we review the sufficiency of the evidence to support a criminal conviction, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences which may be drawn from the evidence. Because this case involves the possession of ordinary tools — as opposed to tools specifically designed to effectuate burglaries — the majority concludes that the State failed to prove felonious intent by showing “either that the tools have probably been recently used for the purpose of unlawfully breaking and entering or that they are about to be used for such purpose.”

¶ 20. But the majority errs by ignoring the considerable circumstantial evidence of felonious intent presented by the State. Dearing located Derrick Henley trespassing on the property of Central Mississippi Recycling in the middle of the night. Henley was driving around the property with his headlights off, and the property’s main entrance gate — a gate that ordinarily is closed at the end of the work day — had been loosened to allow entry. When Henley saw Dearing, Henley attempted to leave the property, coming to a stop three hundred yards from the entrance, where Dearing found Henley in possession of pliers, bolt cutters, screwdrivers, wrenches, and a socket set.

¶ 21. Henley attempted to explain his presence on the property by claiming that he needed a place to turn around. But a reasonable jury could find that the State refuted Henley’s story with the circumstantial evidence stated above. And while the majority is correct to state that a mechanic may very well have all of the tools Henley possessed in his car, a reasonable jury could find an innocent explanation unreasonable because Henley possessed those tools while trespassing in the middle of the night. Further, the jury was justified in finding criminal intent from the fact that Henley attempted to leave the property upon seeing law enforcement personnel.

¶ 22. This Court repeatedly has held that the State may prove the intent to distribute a controlled substance through nothing more than the amount possessed. Certainly, the plethora of incriminating circumstantial evidence in this case is sufficient.

RANDOLPH, P.J., LAMAR AND PIERCE, JJ., JOIN THIS OPINION.

RANDOLPH, Presiding Justice,

dissenting:

¶ 28. Our standard of review for a challenge to the sufficiency of evidence has been repeated so often that supporting citations serve little value-we review the evidence in the light most favorable to the State. Today’s majority fails to follow this established rule. I respectfully dissent.

¶ 24. Henley was indicted under Mississippi Code Section 97-17-35 for “willfully, unlawfully and feloniously possessing] tools designed to aid in the commission of a burglary, to-wit: bolt cutters, pliers and a flashlight_” See Miss.Code Ann. § 97-17-35 (Rev.2006). Those tools are designed for a lawful use, but a tool “may be designed for a lawful use and still be a burglar’s tool.” Fuqua v. State, 246 Miss. 191, 145 So.2d 152, 154 (1962). Thus, Henley’s possession of bolt cutters, pliers, and a flashlight “may or may not be unlawful ... depending on whether the evidence reveals circumstances from which it may be inferred beyond a reasonable doubt that [Henley] intended” to use those tools “in aid of burglary or some other similar crime.” Id. at 155 (emphasis added). The evidence is “sufficient if the circumstances justify the inference that the [tools] were possessed for such criminal purpose.” Id. After the trial court rejected Henley’s motion for a directed verdict, a jury found him guilty of the crime charged based on the circumstances surrounding his possession of the tools. Subsequently, the trial court denied Henley’s motion for a new trial which challenged his conviction on the same grounds.

¶ 25. The circumstances surrounding Henley’s apprehension in the middle of the night at Central Mississippi Recycling in Philadelphia, Mississippi, were sufficiently established at trial. The facility manager testified that, at the close of business prior to Henley’s arrest, he secured the entrance to the facility with a cable and lock. After midnight that same evening, Philadelphia police officer Jonathan Dearing was patrolling the area and noticed that the cable was down. Upon closer investigation, Dearing observed that the “cable ... appeared to [have] fresh cut marks on it” and “the cable clamps had been loosened.” Dearing entered the facility and “observed a vehicle ... coming around the side of [a] building with its headlights off[,]” more than 300 yards from the entrance. Upon spotting Dearing’s patrol car, Henley turned his headlights on and attempted to exit.

¶ 26. Dearing testified that, after stopping the vehicle more than 300 yards from the gate, he approached the defendant’s vehicle and saw “a pair of pliers on the center floorboard ... and, on the passenger’s side floorboard, [he] noticed a pair of bolt cutters.” He testified that both were within Henley’s reach. Dearing further testified that, upon searching Henley, he “found ... a small flashlight in his front left pocket.” Henley’s only explanation for his presence at that location and time was that he was lost and looking for a place to turn around — an explanation reasonable jurors and the trial court obviously rejected, perhaps based on Henley’s driving without his headlights on after midnight at a distance of more than 300 yards from the front gate and testimony that there was “plenty of room” to turn around at the gate without entering the property.

¶ 27. Viewing the evidence in the light most favorable to the State, sufficient evidence established that Henley entered the property with bolt cutters, pliers, and flashlight for a criminal purpose. Henley was found after midnight on property where he had no lawful right to be — property which earlier had been secured by a cable that was subsequently found on the ground with “fresh cut marks” and the “cable clamps loosened.” He was found riding around the facility in the middle of the night with his headlights off, and, upon seeing Dearing’s patrol car, he attempted to exit. The bolt cutters and pliers were on the front floorboard of Henley’s car, and the flashlight was found in his pants pocket, all within accessible reach. Thus, I would affirm the trial court’s conviction and sentence.

DICKINSON, P.J., LAMAR AND PIERCE, JJ., JOIN THIS OPINION.

      . This Court noted that cases from other jurisdictions reveal that possession of skeleton keys probably has resulted in more convictions for possession of burglary tools than any other implement. Fuqua, 246 Miss. at 200, 145 So.2d 152.

      . Bateman v. State, 125 So.3d 616, 623, 624 (Miss.2013).

      . Maj. Op. ¶ 10 (quoting Pamphlet v. State, 271 So.2d 403, 405 (Miss.1972)) (citing McCollum v. State, 197 So.2d 252 (Miss.1967)).

        . Keys v. State, 478 So.2d 266, 268 (Miss.1985) (citing Bryant v. State, 427 So.2d 131, 132 (Miss.1983)).


source: Caselaw Access Project

author: PIERCE, Justice,

license: Public Domain

text:
    Charles FERGUSON a/k/a Charles Furguson a/k/a Charles Ferguson, Jr. a/k/a C.J. v. STATE of Mississippi.
    No. 2012-CT-00417-SCT.
    Supreme Court of Mississippi.
    April 17, 2014.
    Office of State Public Defender by George T. Holmes, Mark Andrew Cliett, attorneys for appellant.
    Office of the Attorney General by Elliott George Flaggs, John R. Henry, Jr., attorneys for appellee.
   PIERCE, Justice,

for the Court:

¶ 1. Charles Ferguson rode as a backseat passenger from Starkville, Mississippi, to West Point, Mississippi, with Lazeric Yarbrough and Oratio Robinson, unaware of Yarbrough’s and Robinson’s intent to purchase marijuana once in West Point. On their return to Starkville, the men approached a Mississippi Highway Patrol checkpoint in Lowndes County, Mississippi. Ferguson testified at trial that, as they approached the checkpoint, Yarbrough, a front-seat passenger in the vehicle, opened the door and threw the bag of marijuana from the vehicle. The officers at the checkpoint watched as the bag was thrown from the vehicle and subsequently arrested all three men. Ferguson was indicted in 2010 for possession of marijuana in an amount greater than 250 grams but less than 500 grams, with the intent to distribute pursuant to Mississippi Code Section 41-29-139. Miss.Code Ann. § 41-29-139 (Rev.2013).

¶ 2. Trial on the matter commenced February 16, 2012, in the Circuit Court of Lowndes County, Mississippi. After the jury was empaneled, the trial court recessed for lunch. Once the trial court reconvened, the State presented that it had learned during the break that Ferguson was a habitual offender, and it had just then filed its motion to amend the indictment to reflect his habitual-offender status under Mississippi Code Section 99-19-81. Miss.Code Ann. § 99-19-81 (Rev.2007). The trial court moved forward with a hearing on the State’s motion to amend the indictment pursuant to Uniform Rule of Circuit and County Court 7.09. URCCC 7.09. Defense counsel argued that, because of the timing of the motion, an amendment would unfairly prejudice Ferguson. The trial court recessed to give defense counsel an opportunity to speak with Ferguson concerning the implications of habitual-offender status. During the recess, the State communicated its plea offer to Ferguson for his consideration.

¶ 3. Thereafter, the trial court ruled that it would allow the amendment, and it stated that defense counsel had conferred with Ferguson for “approximately 40 minutes since the motion was made.” Ferguson, an indigent defendant, addressed the trial court, seeking permission to hire his own attorney. The trial court ruled that Ferguson had two years prior to trial to hire an attorney, and further, he did not show that he was now able to afford an attorney. An additional “brief recess” was taken to give Ferguson and defense counsel one last chance to confer. Ferguson chose to reject the State’s plea offer.

¶ 4. Once Ferguson rejected the State’s offer, the State moved forward with presenting its case-in-chief. Ferguson presented his defense the following day, and trial concluded with closing arguments by both parties. That same day, Ferguson was convicted of the lesser-included offense of possession of marijuana in an amount of 250 grams but less than 500 grams, pursuant to Mississippi Code Section 41-29-139(c)(2)(D). Miss.Code Ann. § 41-29-139(c)(2)(D) (Rev.2013). Immediately thereafter, Ferguson was sentenced to serve eight years as a habitual offender.

¶ 5. Ferguson appealed his conviction to the Mississippi Supreme Court, and his case was assigned to the Mississippi Court of Appeals. On appeal, he argued that: (1) the verdict was against the sufficiency of the evidence; (2) the trial court erred in allowing the indictment to be amended after jury selection had been completed; (3) the trial court erred in denying his motion for a continuance; and (4) his counsel was ineffective. Finding no error, the Court of Appeals affirmed Ferguson’s conviction.

¶ 6. This Court granted Ferguson’s petition for writ of certiorari, which raised the following issues:

I. Whether the court erred in allowing the indictment to be amended to reflect habitual-offender status after jury selection had been completed.
II. If the amendment to the indictment to reflect habitual-offender status was proper, whether the court erred in denying Ferguson’s ore terms motion for a continuance to hire an attorney.

¶ 7. On appeal to this Court, Ferguson raised only the preceding two issues and did not appeal his conviction. Finding that the amendment to the indictment was untimely, we will discuss only the first issue.

STANDARD OF REVIEW

¶ 8. Whether the trial court erred by allowing the indictment to be amended on the day of trial is an issue of law that is reviewed de novo. Jackson v. State, 943 So.2d 746, 749 (Miss.Ct.App.2006) (citing Peterson v. State, 671 So.2d 647, 652 (Miss.1996) (overruled on other grounds)).

ANALYSIS

Whether the court erred in allowing the indictment to be amended to reflect habitual-offender status after jury selection had been completed.

¶ 9. Ferguson argues that amending the indictment was impermissible because the State failed to give pretrial notice. Ferguson cites this Court’s holding in Gowdy v. State to support his argument. Gowdy v. State, 56 So.3d 540, 544 — 46 (Miss.2010). In the instant case, the State sought to amend the indictment during trial, after the jury was empaneled. This Court’s opinion in Boyd v. State provides the controlling law for the case before us. Boyd v. State, 113 So.3d 1252 (Miss.2013).

¶ 10. Uniform Rule of Circuit and County Court 7.09 allows indictments to be amended to charge a defendant as a habitual offender. URCCC 7.09. Even though Rule 7.09 is silent regarding the timing of an amendment, it stipulates that the defendant must be “afforded a fair opportunity to present a defense and not [be] unfairly surprised.” Gowdy, 56 So.3d at 545 (quoting URCCC 7.09).

¶ 11. Boyd addressed what constitutes adequate notice, such that the defendant will have a “fair opportunity to present a defense” and will not be “unfairly surprised.” Boyd, 113 So.3d at 1255 (citing URCCC 7.09). This Court clarified that “... adequate notice is achieved through formal pleadings which include the specific amendment to be offered and which are filed sufficiently in advance of trial.... ” Boyd, 113 So.3d at 1256.

¶ 12. As in this case, the State first announced its intent to seek enhanced sentencing on the day of Boyd’s trial. Boyd, 113 So.3d at 1253. The State did not file its motion to amend Boyd’s indictment until the sentencing hearing. Boyd, 113 So.3d at 1254. This Court held that Boyd had not been afforded sufficient notice of the State’s intent to amend the indictment. As previously stated, the State filed its motion to amend the indictment during the afternoon recess. Ferguson sought a continuance in order to hire an attorney rather than continue with his appointed counsel, but he was denied any type of continuance. Ferguson and his counsel were given a short period of time to consider the change in the indictment and the plea offer by the State. Opening arguments began immediately after the hearing on the motion to amend the indictment, and Ferguson was convicted and sentenced by the end of the following day.

¶ 13. McCain v. State provided that a case-by-case determination should be used when adhering to the specifications of Rule 7.09. McCain v. State, 81 So.3d 1055, 1061 (Miss.2012). Accordingly, we find that Ferguson was unfairly surprised by the timing of the motion, and he was not given adequate notice consistent with the requirements of Rule 7.09 or this Court’s holding in Boyd v. State. URCCC 7.09; Boyd, 113 So.3d at 1256.

CONCLUSION

¶ 14. The trial court erred in allowing the amendment to the indictment, because Ferguson did not receive proper notice and was unfairly surprised. Accordingly, we reverse in part the judgments of the Court of Appeals and trial court. We vacate only the portion of Ferguson’s sentence that is based on his status as an habitual offender pursuant to Mississippi Code Section 99-19-81. Miss.Code Ann. § 99-19-81 (Rev.2013). We remand the case to the Lowndes County Circuit Court for resentencing consistent with Mississippi Code Section 41-29-139(c)(2)(D), which provides that Ferguson shall be sentenced to “... not less than two (2) years nor more than eight (8) years and by a fine of not more than Fifty Thousand Dollars ($50,000.00).” Miss.Code Ann. § 41-29-139(c)(2)(D) (Rev.2013).

¶ 15. REVERSED IN PART; VACATED IN PART AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . Mississippi Code Section 99-19-81 states:
      Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.
      Miss.Code Ann. § 99-19-8 Í (Rev.2007).

      . "All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement .... Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” URCCC Rule 7.09.


author: KING, Justice,

text:
    Scott D. SMITH a/k/a Scott Dreux Smith a/k/a Scott Smith v. STATE of Mississippi.
    No. 2012-CT-00218-SCT.
    Supreme Court of Mississippi.
    April 17, 2014.

      Office of State Public Defender by Justin Taylor Cook, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Lisa L. Blount, John R. Henry, Jr., attorneys for appellee.
   ON WRIT OF CERTIORARI

KING, Justice,

for the Court:

¶ 1. Scott Smith was convicted of capital murder for the death of seventeen-month-old Ally Waldrop and sentenced to life without the possibility of parole. Smith appealed his conviction to the Court of Appeals, arguing that the trial court erred in admitting several Facebook messages into evidence and that the testimony of an investigator violated the Confrontation Clause. The Court of Appeals found no reversible error and affirmed. Smith filed a Petition for Certiorari arguing that the Court of Appeals erred in holding that the Facebook messages were sufficiently authenticated, that the Court of Appeals erred by finding that an email from Face-book was not inadmissible hearsay, and that the Court of Appeals erroneously applied a harmless-error analysis to the violation of Smith’s confrontation rights. We granted certiorari. On certiorari, we limit our review to Smith’s claim that the Face-book messages were not sufficiently authenticated. We find that Smith’s claim has merit; however, because the error was harmless, we affirm Smith’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. Some of the following facts and history were adopted from the Court of Appeals’ opinion. Smith married Jenny Waldrop on April 16, 2010. Waldrop had two children, two-or three-year-old Ethan and seventeen-month-old Ally, from a previous relationship. Waldrop worked at the Subway located in the local Walmart. Because they had only one vehicle, Smith typically drove Waldrop to and from work. Smith would care for Ethan and Ally while Waldrop was at work.

¶ 3. On May 28, 2010, Smith took Wal-drop to work at 4:00 p.m. Ethan and Ally were with him in the car, and Ally did not have any head injuries. At about 8:00 that evening, Smith called Waldrop at work and told her that Ethan had hit Ally on the head with an iron. He called Waldrop again around 9:00 p.m. and told her that Ethan had hit Ally again with the iron, and that Ally had consequently fallen backward into the wall. Smith then told Waldrop that he had called the hospital and that the hospital told him to watch Ally, and also that he had called his aunt, a nurse, and that one of his aunt’s 'friends was on the way to the house to check on Ally. At about 9:30, Smith called Waldrop again to inform her that a nurse had examined Ally and that she was fine.

¶ 4. Waldrop got off of work around 10:00 p.m. Her manager testified that she clocked out at 10:08 p.m. Waldrop testified that, at about 10:10 p.m., Smith had yet to arrive to pick her up. She called Smith and he informed her that the car had broken down and that he was on his way. Waldrop testified that when Smith arrived, the children were not with him. One of Waldrop’s co-workers also testified that she observed Smith pick up Waldrop at about 10:10 p.m. and that the children were not with him. Waldrop testified that Smith told her that he had already put the children to bed. As soon as they returned home, Waldrop went to check on the children and found that Ally was not breathing, her eyes were half-closed, and she had a knot on her head. At that point, Waldrop testified that she started screaming for Smith to call 9-1-1.

¶ 5. An ambulance was dispatched at 10:19 p.m. and arrived at the residence at 10:21 p.m. Matt Lee, an EMT paramedic with Wayne General Hospital, testified that he responded to the 9-1-1 call on May 28, 2010. He testified that he could not find Ally’s pulse nor could he see respira-tions, so he attempted to intubate her. Lee testified that he was unable to intu-bate her because the scene became unsafe. He stated that Smith began to use vulgar language and questioned why they were not at the hospital yet. The ambulance left for the hospital and arrived at Wayne General Hospital at 10:26 p.m.

¶ 6. Jennifer Williams, the Wayne General Hospital emergency room nurse, testified that on May 28, 2010, she received a phone call at approximately 8:00 p.m. asking what to do for a young child who was struck in the head with an iron by a sibling. Williams testified that at approximately 10:00 or 10:30 that night, she received a one-year-old child in the emergency room with the symptoms reminiscent of those described in the 8:00 p.m. phone call. She testified that the patient was bluish, pale, not breathing, and unresponsive when she arrived. She also testified that the patient had various stages of bruising in various places on the body, including several bruises to the head.

¶ 7. Wesley Waites, a criminal investigator with the Waynesboro Police Department, testified that he responded to a call from the hospital regarding Ally’s death. Waites testified that Ally had numerous bruises all over her body and that a portion of the back of her head was soft and spongy. Waites testified that Smith informed him that the injuries were caused by Ethan hitting Ally in the forehead with an iron, and Ally falling four to six inches into the wall, striking the back of her head. Waites asked Smith if he would give a blood sample, and Smith refused. Waites proceeded to get a search.warrant for a blood test for Smith and was able to have his blood drawn at approximately 6:30 a.m. on May 29, 2010. Shan Hales with the Mississippi Crime Laboratory testified that the crime lab performed an alcohol analysis and a drug screen on Smith’s blood and the blood contained .06% ethyl alcohol. Hales opined that a person’s body generally eliminates alcohol at a rate of approximately .02% per hour, with the elimination rate range spanning from .01% to .03% per hour.

¶ 8. Waites testified that he went to the residence at which Ally was injured and did not find any blood or indentations on any of the walls. He also recovered an iron from on top of a washing machine. Waites testified that he did not see any blood on the iron.

¶ 9. Waites and another investigator interviewed Smith at the police station for nearly two hours. This interview was videotaped, and a DVD recording of the interview was entered into evidence without objection. During the interview, Smith maintained his story that Ethan had hit Ally with an iron, and that he did not know how her other injuries occurred, nor did he know how the severe nature of the injuries occurred. He maintained that Ally was “fine” during his custody. Importantly, he admitted multiple times that he was the sole custodian of Ally during the evening of May 28, 2010, when the injury occurred, and that no other adults were in Ally’s presence that evening, until Waldrop got off work at about 10:00 p.m.

¶ 10. Dr. Adele Lewis, the pathologist who performed Ally’s autopsy, testified at length about the injuries Ally suffered. She testified that her external examination revealed that Ally had “multiple injuries to her head, to her face, behind her ears, to her chest, to her upper thigh, and to her vagina,” many of which “occurred at or around the time of her death.” Ten photographs of these injuries were admitted into evidence. Dr. Lewis also testified that some of the injuries were in locations that were “very unusual for an accidental injury to a child.” Additionally, some of the scrapes and bruises were older. Dr. Lewis testified that the internal examination of Ally revealed “a great deal of bruising all over the child’s scalp, on the underneath of her scalp. She also had multiple fractures of her skull. She also had bleeding on her brain, some bleeding behind her eyes, and injuries to her brain.” As to the head injuries, she opined that “[i]t takes a great deal of force to produce that sort of injury.... [Children] don’t sustain injuries like this in the course of their normal, everyday lives. It takes a person with the strength and coordination of an adult to inflict this type of injury.” (Emphasis added.) She then stated her medical opinion that it was impossible for a two-or three-year-old child to inflict those kinds of injury on another:

Q: Is it possible — is it medically possible, in your opinion, for a two-and-a-half or three-year-old child to inflict those kinds of injuries on another with some sort of instrument or weapon?
A: No.
Q: That is not medically possible?
A: Not in my opinion, no.

¶ 11. Dr. Lewis also revealed that the internal examination confirmed that the bruising to Ally’s chest and thigh were recent, and that “the blood extended into the deep, soft tissue of the body.” She further found that Ally had no heart or lung disease “or anything else wrong with her,” and that the autopsy revealed no “other reason to explain her death.” She also found nothing in her toxicology work to explain Ally’s death.

¶ 12. Dr. Lewis concluded to a reasonable degree of medical certainty that the manner of Ally’s death was homicide and that the cause of death was blunt-force injuries to the head. She noted that the bruising that did not contribute directly to Ally’s death was “significant not so much as the cause of death, which is, obviously, the severe injuries to the child’s head, but to the manner of death and to showing that many of these injuries were not accidental in nature and that they appear to be inflicted.” She again opined that a two- or three-year-old child could not have caused the injuries responsible for Ally’s death:

Q: ... It has been or it was alleged or told that the child was standing approximately four to six inches from a wall in the home when a two-and-a-half to three-year-old sibling hit her with an iron, a clothes iron, in the head not once, but twice. The child fell back and hit the wall from that distance. My question to you is, is that — the injuries that you saw, is that medically possible for that to have occurred?
A: That story is not consistent with the injuries I saw with this child.
Q: And why not?
A: Again, these injuries were inflicted by someone with the strength and coordination of an adult. A small toddler child — this was a 17-month-old child — is not going to be able to generate enough force just falling backwards four to six inches into a wall in order to inflict those injuries on her head. And similarly, a three-year-old child is not going to be able to wield an iron with enough force to inflict this sort of injury.
Q: So you’re confident that this is a homicide?
A: Yes, I am.

¶ 13. Witnesses testified that Ally had been injured while in Smith’s sole custody before. Waldrop testified that, a few weeks before Ally’s death, Ally was injured while Smith was caring for her, and Smith informed Waldrop that Ally had fallen down the stairs. Waldrop’s boss, Sara Gardner, testified that she noticed bruising on Ally’s face and legs on May 21, 2010, and every day thereafter that she saw Ally. She testified that she asked Wal-drop what had happened to Ally and that Waldrop told her that Scott said Ally fell down the stairs. Gardner also testified that Scott was present when Waldrop told her this.

¶ 14. Additionally, several people testified that Smith complained about Ally and wanted her gone. Waldrop testified that Smith wanted her to find someone else to care for Ally and that his primary complaint was that she cried a lot. Terri Nettles, a friend of Waldrop’s, testified that Smith “said it was they [sic] would probably be better if Ally would just quit screaming and crying.” Nettles testified that Ally did indeed scream and cry, because she was teething. Paula Chafin, with whom Smith, Waldrop, Ethan, and Ally lived for two or three weeks during May 2010, testified that Smith kept the children while Waldrop was at work and that “the little girl stayed in the bed most of the time.” She testified that she and Waldrop had a discussion about whether Chafin would take Ally, and that Waldrop did not want to get rid of Ally.

¶ 15. To that end, the State introduced two Facebook messages and one email notification containing a Facebook message. Two of the messages purported to be from Smith to Waldrop. The third message was from Waldrop to Smith. Two of the Face-book messages introduced were cut off at the right margin, thus giving an incomplete account of what the messages contained. Aside from the eliminated right margin, the Facebook messages purported to contain conversations regarding the marriage between Smith and Waldrop, the fights they were having, and the problems with Ally that Smith had, specifically with how much she cried. One of the messages purporting to be authored by Smith noted that “[I] feel my temper building and [I] know [I] will hurt someone, they are playing with fire and have no clue.” To authenticate the letters, Waldrop testified that she and Smith would write letters to each other on Facebook. She further testified as follows:

Q: Did he — did he give you indications in your Facebook discussions or letters, ... that he wanted it to be just the three of you, you, Ethan, and him, and not Ally?
A: Yes, sir.
Q: Did he indicate to you in those communications that he felt like he was, for a lack of a better term, about to boil over with anger?
A: Yes, sir.
Q: Jenny, I am going to show you copies of three documents, and I want you to look at these and tell me if you can identify what they are.
A: It’s my Facebook messages.
Q: It’s Page 1 — it’s three pages. What is the second page?
A: It’s my Facebook letter to him.
Q: And?
A: His Facebook letter to me.
Q: So the first short one—
A: —was his.
Q: The second one is yours. And the last one is his?
A: Yes, sir.

At this point in the testimony, Smith objected to the admission of the Facebook messages into evidence as hearsay and as not being properly authenticated. The trial court overruled the objection, and the Facebook messages were admitted.

¶ 16. The jury convicted Smith of capital murder, and the trial court sentenced him to life without parole. Smith filed a motion for judgment notwithstanding the verdict (JNOV) and/or a motion for a new trial, which the trial court denied. Smith then appealed his conviction to the Court of Appeals, arguing that the trial court erred in admitting the Facebook messages because they were not authenticated and were hearsay, and that certain testimony by Waites violated the Confrontation Clause. The Court of Appeals found that the Facebook messages were properly authenticated. It found that Waldrop’s testimony properly authenticated the Face-book messages, relying on Kearley v. State, 843 So.2d 66 (Miss.Ct.App.2003). Smith filed a petition for writ of certiorari with this Court, which we granted. M.R.A.P. 17. On certiorari, we limit our review to the question of whether the two Facebook messages sent from Smith to Waldrop were properly authenticated, a question of first impression with this Court. See Guice v. State, 952 So.2d 129, 133 (Miss.2007) (Supreme Court “unquestionably” has the authority to limit the issues on review).

ANALYSIS

¶ 17. We review the admission of evidence for abuse of discretion. Young v. Guild, 7 So.3d 251, 262 (Miss.2009). Moreover, this Court will not reverse a conviction unless the trial court abused its discretion in a manner that was prejudicial to the accused. Sewell v. State, 721 So.2d 129, 138 (Miss.1998).

¶ 18. Mississippi Rule of Evidence 901 governs the requirements of authentication of evidence, stating that the authentication requirement “is satisfied by-evidence sufficient to support a finding that the matter in question is what its proponent claims.” M.R.E. 901(a). Authentication is a condition precedent to admissibility. Id. A party must make a prima facie showing of authenticity, and then the evidence goes to the jury, which ultimately will determine the evidence’s authenticity. Young, 7 So.3d at 262. Rule 901 gives examples of how the authentication requirement may be met:

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be.
(4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

M.R.E. 901(b)(1) & (4). Electronic evidence may be authenticated by the traditional means, and is adequately covered by the current rules of evidence. See State v. Eleck, 130 Conn.App. 632, 23 A.3d 818, 823 (2011). However, “the circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium.” Id.

¶ 19. The authentication of social media poses unique issues regarding what is required to make a prima facie showing that the matter is what the proponent claims. Creating a Facebook account is easy. Mil-lier, Samantha L., Note, The FaceBook Frontier: Responding to the Changing Face of Privacy on the Internet, 97 Ky. L.J. 541, 544 (2008-09). “[AJnyone at least thirteen years old with a valid e-mail address could create a profile.” Petrashek, Nathan, The Fourth Amendment and the Brave New World of Online Social Networking, 93 Marq. L.Rev. 1495, 1506 (Summer 2010). To create a profile, a person must go to www.facebook.com, enter his or her full name, birth date, and email address, and register a password. Facebook then sends a confirmation link to the registered e-mail, which the person must click on to complete registration. Miller, 97 Ky. L.J. at 544. Not only can anyone create a profile and masquerade as another person, but such a risk is amplified when a person creates a real profile without the realization that third parties can “mine” their personal data. Id. at 542. Friends and strangers alike may have “access to family photos, intimate details about one’s likes and dislikes, hobbies, employer details, and other personal information,” and, consequently, “the desire to share information with one’s friends may also expose users to unknown third parties who may misuse their information.” Id. at 542-43 (describing a study done by an internet security company using “Freddi Staur,” a toy frog with a Facebook account, who “friended” several people on Facebook and was able to access their personal information). Thus, concern over authentication arises “because anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password,” and, consequently, “[t]he potential for fabricating or tampering with electronically stored information on a social networking sight” is high, and poses challenges to authenticating printouts from the website. Griffin v. State, 419 Md. 343, 19 A.3d 415, 421-22 (2011); see also Eleck, 130 Conn.App. 632, 23 A.3d at 822 (“an electronic communication, such as a Facebook message, ... could be generated by someone other than the named sender”); Campbell v. State, 382 S.W.3d 545, 550 (Tex.App.2012) (“Fa-cebook presents an authentication concern that is twofold. First, because anyone can establish a fictitious profile under any name, the person viewing the profile has no way of knowing whether the profile is legitimate. Second, because a person may gain access to another person’s account by obtaining the user’s name and password, the person viewing communications on or from an account profile cannot be certain that the author is in fact the profile owner.” (internal citations omitted)).

¶ 20. Because of the special concerns regarding fabrication, “the fact that an electronic communication on its face purports to originate from a certain person’s social networking account is generally insufficient standing alone to authenticate that person as the author of the communications.” Campbell, 382 S.W.3d at 550 (citing Tienda v. State, 358 S.W.3d 633 (Tex.Crim.App.2012) (“That an email on its face purports to come from a certain person’s email address, that the respondent in an internet chat room dialogue purports to identify himself, or that a text message emanates from a cell phone number assigned to the purported author — none of these circumstances, without more, has typically been regarded as sufficient to support a finding of authenticity.”)). Therefore, something more than simply a name and small, blurry photograph purporting to be Smith is needed to identify the Facebook account as his in the first place.

¶ 21. The ease with which defendants and alleged victims alike could fabricate a social media account to corroborate a story necessitates more than a simple name and photograph to sufficiently link the communication to the purported author under Rule 901. The court in Tienda surveyed cases and noted what that “something more” may be to adequately present a prima facie case of authentication. Tienda, 358 S.W.3d at 639-41. For example, the purported sender admits authorship, the purported sender is seen composing the communication, business records of an internet service provider or cell phone company show that the communication originated from the purported sender’s personal computer or cell phone under circumstances in which it is reasonable to believe that only the purported sender would have access to the computer or cell phone, the communication contains information that only the purported sender could be expected to know, the purported sender responds to an exchange in such a way as to indicate circumstantially that he was in fact the author of the communication, or other circumstances peculiar to the particular case may suffice to establish a prima facie showing of authenticity. Id.; see also Griffin, 419 Md. 343, 19 A.3d at 427-28 (social media may be authenticated by testimony from the purported author, by searching the purported author’s computer and examining the computer’s internet history and hard drive, or by obtaining information directly from the social networking website that links the profile and posting to the purported author); Commonwealth v. Williams, 456 Mass. 857, 926 N.E.2d 1162 (2010) (social media was not properly authenticated where there was no testimony “regarding how secure such a Web page is, who can access a Myspace Web page, whether codes are needed for such access, etc.”).

¶ 22. In Eleck, the defendant sought to impeach a state witness with a Facebook message purporting to be from the witness. Eleck, 130 Conn.App. 632, 23 A.3d at 820. The message was from a Face-book account bearing a user name matching the name of the witness. Id. The defendant testified that the account profile contained photographs and other entries identifying the witness as the holder of the account, and that after the witness testified, the account had removed the defendant as a “friend.” Id. at 821. The messages also contained a vague statement that the “past is the past,” which the defendant argued was a reference to the assault he was alleged to have committed. Id. at 820 n. 2, 824. The witness testified that the Facebook account was indeed hers, but she denied sending the messages, testifying that someone had “hacked” into her Facebook account two to three weeks prior, and had changed her password such that she had subsequently been unable to access it. Id. at 820. The court held that, although the suggestion that the witness did not author the messages because the account was “hacked” was “dubious under the particular facts at hand, given that the messages were sent before the alleged hacking of the account took place, [the witness’s] testimony highlights the general lack of security of the medium.” Id. at 824. Thus, the court found that the defendant did not offer the proper foundational proof to authenticate that the messages came from the witness, and not simply from her Facebook account. Id.

¶ 23. In United States v. Jackson, the defendant attempted to introduce website postings from two white supremacist websites to exonerate herself, in an attempt to prove that these white supremacist groups, and not the defendant, sent the racist hate mail that the defendant was accused of sending. United States v. Jackson, 208 F.3d 633, 636-37 (7th Cir.2000). The court stated that to authenticate the website postings, the defendant “needed to show that the web postings in which the white supremacist groups took responsibility for the racist mailings actually were posted by the groups, as opposed to being slipped onto the groups’ web sites by [the defendant] herself, who was a skilled computer user.” Id. at 638. The court found that the defendant was unable to so authenticate the website postings. Id.

¶ 24. Similarly, in this case, the State failed to provide evidence sufficient to support a finding that the Facebook messages from Smith were what the State claimed. The State failed to make a prima facie case that the Facebook profile from which the messages came belonged to Smith, as the only information tying the Facebook account to Smith was that the messages purported to be from a “Scott Smith” and were accompanied by a very small, grainy, low-quality photograph that we can only assume purported to be Smith. No other identifying information from the Facebook profile, such as date of birth, interests, hometown, or the like, was provided.

¶ 25. The State likewise failed to make a prima facie case that the messages were actually sent by Smith. The only information tying the actual messages to Smith was Waldrop’s testimony that they were Smith’s messages to her. This does not suffice as the testimony of a witness with knowledge, because the State utterly failed to provide any information as to the basis of her purported knowledge. She did not testify as to how she knew that the Face-book account was Smith’s, nor did she testify as to how she knew that Smith actually authored the Facebook messages. Furthermore, the information contained in the Facebook messages was known not only to Smith, but to Waldrop and apparently to several of her friends and family members. Additionally, the messages provided do not appear to be part of the same conversation; thus it does not appear that Smith’s messages are replying to anything in Waldrop’s message. Also, no testimony regarding the security of or access to Smith’s Facebook account was elicited. Indeed, cases in which romantic partners have accessed social networking accounts illustrate the susceptibility of social media accounts to security breaches. See Campbell, 382 S.W.3d at 552 (defendant and his girlfriend, the victim, were the only ones who had access to his Facebook account, however, his girlfriend testified that she could not access the account at the time the messages were sent and she did not send the messages to herself); Simmons v. Commonwealth, 2013 WL 674721, at *1 (Ky. Feb. 21, 2013) (law enforcement officers obtained sexually suggestive messages between an adult and a middle-school student because the adult’s girlfriend accessed his Facebook account when he ended their relationship).

¶ 26. The trial court therefore abused its discretion by admitting the Fa-cebook messages purporting to be from Smith’s account, because these messages were not properly authenticated. Sufficient evidence tying both the Facebook profile and the Facebook message to Smith does not exist. However, our inquiry does not end there. Errors in the admission of evidence are subject to a harmless-error analysis. Young v. State, 99 So.3d 159, 165 (Miss.2012).

¶ 27. Harmless-error analysis prevents “setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.” Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We do not reverse a conviction for an erroneous evidentiary ruling unless “the error adversely affects a substantial right of a party,” or in other words, unless the ruling prejudiced the accused. Young, 99 So.3d at 165 (internal quotations omitted). Thus, where it is “clear beyond a reasonable doubt that the error did not contribute to the verdict,” we need not reverse the conviction. Id. (internal quotations and alterations omitted).

¶ 28. The evidence of Smith’s guilt is overwhelming. Most importantly, Smith admitted being in sole custody of Ally during the time in which she suffered the fatal injuries, and he admitted that no other adults were even in Ally’s presence during that time. Moreover, Dr. Lewis testified as to her medical opinion that Ally’s injuries were not accidental and could not have been inflicted by a child, but must have been inflicted by an adult. Additionally, Waldrop testified as to the sequence of events on the evening of Ally’s death. Waldrop’s co-worker, Nurse Williams, EMT Lee, and Officer Waites also testified as to the events of the night of Ally’s death, and their versions were substantially the same as Waldrop’s version. Waites testified that he did not observe any blood on the iron retrieved from Smith’s and Waldrop’s house, nor did he observe any blood or indentations on the wall. Williams, Lee, and Waites also testified regarding the extent of Ally’s injuries, and the jury viewed photographic evidence of her injuries. Additionally, Waldrop, Gardner, Nettles, and Chafin testified regarding Smith’s problems with Ally, and regarding Ally having been injured before while in Smith’s sole custody. The jury also viewed Smith’s nearly-two-hour interview with the police, in which he repeatedly admitted to being the only adult in Ally’s presence on the night of May 28, 2010. Furthermore, the jury was presented with evidence that Smith’s blood alcohol level was .06% approximately eight hours after Ally was transported to the hospital, and heard testimony that alcohol metabolizes out of the blood at a rate of between .01% to .03% per hour. It also heard his statement to police that he had only one-half of a glass of wine at least ten or more hours before his blood was taken. Given this overwhelming evidence of guilt, particularly Smith’s admission to being Ally’s sole custodian at the time she was injured in conjunction with Dr. Lewis’s medical opinion that only an adult could have inflicted such injuries, the admission of the Facebook messages from Scott was harmless beyond a reasonable doubt.

CONCLUSION

¶ 29. We find that the Court of Appeals erred to the extent that it found that the Facebook messages purporting to be from Smith were properly authenticated. However, because the admission of these two Facebook messages into evidence was harmless beyond a reasonable doubt, we affirm the Wayne County Circuit Court’s judgment of conviction for capital murder.

¶ 80. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND VACATED IN PART. THE JUDGMENT OF THE WAYNE COUNTY CIRCUIT COURT IS AFFIRMED. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF SUSPENSION, REDUCTION, PROBATION, PAROLE, EARNED TIME, GOOD TIME, OR ANY TYPE OF EARLY RELEASE, AFFIRMED. APPELLANT SHALL PAY COURT COSTS OF $434.50 AND IS GIVEN CREDIT FOR 601 DAYS JAIL CREDIT.

WALLER, C.J., DICKINSON AND RANDOLPH, P JJ., LAMAR, KITCHENS, CHANDLER AND COLEMAN, JJ., CONCUR. PIERCE, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . She is also referred to in the record as Jena Waldrop and Jena Smith.

      . The record is unclear as to whether Ethan was two or three at the time of Ally’s death.

      . Waldrop testified that this story was Smith’s explanation for Ally’s injuries, and Smith also explained that this had occurred in his nearly-two-hour interview with the police. A DVD of the interview was admitted into evidence without objection.

      . Jennifer Williams, a registered nurse at Wayne General Hospital, testified that she received a telephone call at approximately 8:00 p.m. on May 28, 2010, from a woman with a deep voice who informed her that her son had hit her daughter on the head with an iron. The caller wanted to know if the child should be brought to the emergency room. Williams testified that she informed the caller that she could not offer a diagnosis over the phone, but would be happy to examine the child in the emergency room.

      . The co-worker admitted that her boss had helped her word her statement to the police, but that it was true that the children were not with Smith when he picked Waldrop up from work.

      . In his interview with the police, Smith stated that he left the house to pick up Waldrop at 9:55 p.m. He stated that the car shut off at a stop light, but that it started back up immediately. He claimed that the children were with him when he picked Waldrop up, and that they then returned to the house. He claimed that Waldrop took the children inside, then began screaming for him to call 9-1-1.

      . In his interview with police, Smith stated that the sum total of his alcohol consumption on the evening of May 28, 2010, was about one-half of a glass of wine, which he mixed with Kool-Aid.

      . She testified that those injuries had likely occurred within six to twelve hours of Ally’s death.

      . Photograph one showed a large bruise and scrape near the back of Ally’s head. Photograph two showed a fresh, recent bruise on the inner part of the upper thigh, a location that is very unusual for an accidental injury to a child. Photograph three showed a large, recent bruise on Ally's left cheek, another very unusual location for an accidental injury to a child. Photograph four showed a very large bruise over the right side of the head and some bruising on both sides of the upper parts of Ally's chest, all of which occurred at or around the time of death. Photograph five showed a bruise over Ally’s left eye that appeared to be at least two days old. Photograph six showed a scrape to her nose that appeared to be older. Photograph seven also showed the bruise on Ally’s thigh. Photograph eight showed bruising on Ally’s shoulders that occurred at or around the time of death. Photograph nine showed tears around Ally’s vagina that occurred at or around the time of death. Photograph ten showed the bruise on the back of her head from another angle, and also a bruise behind her right ear that occurred at or around the time of death.

      . For clarity, this Court will refer to all three documents as “Facebook messages.’’

      . The Court of Appeals found that the email notification itself was not hearsay because it was an automated process. Moreover, it found that the content of the two messages sent by Smith were admissions by a party-opponent. It determined that Waldrop’s message to Smith "could be” hearsay, but that any error in its admission was harmless because Waldrop testified as to the same matters and because overwhelming evidence supported the conviction. We do not review the Court of Appeals’ holding on this issue.

      . Waites testified that the State Crime Lab did not find any fingerprints on the iron. The analyst who performed the fingerprint analysis did not testily. The Court of Appeals found that 1) this issue was procedurally barred because the defense did not object on confrontation grounds; 2) and that even if there was plain error allowing review, the error was harmless. We do not review the Court of Appeals’ holding on this issue.

      .We do not review the Court of Appeals decision on the authenticity of the message from Waldrop to Smith, because Waldrop admitted in her testimony that she had authored that message.

      . No testimony or other evidence exists that this photograph is indeed of Smith.


author: LEE, C.J.,

text:
    Charles FERGUSON a/k/a Charles Furguson a/k/a Charles Ferguson, Jr. a/k/a C J, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00417-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Rehearing Denied Nov. 5, 2013.

      Mark Andrew Cliett, West Point, attorney for appellant.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   LEE, C.J.,

for the Court:

¶ 1. On January 31, 2010, Charles Ferguson and Lazeric Yarbrough rode with Oratio Robinson from Starkville, Mississippi, to West Point, Mississippi. While on the way, Ferguson learned that Robinson was driving to West Point to purchase marijuana. When they arrived in West Point, Robinson purchased the marijuana and then stopped at the Soco gas station. Yarbrough and Robinson went inside the gas station, while Ferguson remained in the backseat of the car with the marijuana. Once Yarbrough and Robinson returned to the car, Robinson drove back to Starkville.

¶ 2. On the return trip to Starkville, the men came to a Mississippi Highway Patrol checkpoint on the on-ramp of Highway 82 in Lowndes County, Mississippi. As they approached the checkpoint, Yarbrough opened the passenger door of the two-door car, and one of the men threw the marijuana from the car. Officer Justin Rollins saw a white Wal-Mart sack thrown from the passenger side of the car. When Officer Rollins stopped the car and asked Robinson for his driver’s license and proof of insurance, he smelled a strong odor of marijuana coming from the car. Officer Justin Alsup, who was at the checkpoint as well, retrieved the Wal-Mart sack that had been thrown from the ear. Once Officer Alsup looked inside the bag and saw what he believed to be marijuana, he informed Officer Rollins to remove the men from the car and arrest them.

¶ 8. Ferguson was indicted for possession of marijuana in an amount of 250 grams but less than 500 grams with the intent to distribute. After a jury trial in Lowndes County Circuit Court on February 16 and 17, 2012, the jury returned a unanimous verdict convicting Ferguson of possession of marijuana in an amount of 250 grams but less than 500 grams. Ferguson was sentenced as a habitual offender and ordered to serve eight years in the custody of the Mississippi Department of Corrections with no eligibility for parole or probation and to pay a $50,000 fine and all court costs.

DISCUSSION

¶4. Ferguson now appeals, arguing (1) the verdict was against the sufficiency of the evidence; (2) the trial court erred in allowing the indictment to be amended after jury selection had been completed; (3) the trial court erred in denying his motion for a continuance; and (4) his counsel was ineffective. Finding no error, we affirm.

I. SUFFICIENCY OF THE EVIDENCE

¶ 5. While Ferguson styles this issue as a challenge to the weight of the evidence, he argues that the evidence was insufficient to prove he had dominion or control over the marijuana.

¶ 6. When a party moves for a directed verdict or a judgment notwithstanding the verdict, the party has challenged the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). If the jury has returned a guilty verdict, this Court is “not at liberty to direct that the defendant be discharged[,] short of a conclusion on our part that [taking] the evidence ... in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty.” Pharr v. State, 465 So.2d 294, 301 (Miss.1984).

¶ 7. Ferguson was convicted of possession of marijuana in an amount of 250 grams but less than 500 grams under Mississippi Code Annotated section 41-29-139(c)(2)(D) (Supp.2012). The Mississippi Supreme Court has stated for a conviction of possession of a controlled substance to stand, “there must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Glidden v. State, 74 So.3d 342, 345-46 (¶ 12) (Miss.2011) (internal citations omitted). However, this possession “need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself it is not adequate in the absence of other incriminating circumstances.” Cheatham v. State, 12 So.3d 598, 601 (¶ 7) (Miss.Ct.App.2009) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)).

¶ 8. On the way to West Point, Ferguson was informed that Robinson’s purpose for driving to West Point was to purchase drugs. While testifying, Ferguson stated that he had previously smoked marijuana and knew that the substance Robinson purchased was marijuana. Ferguson testified that he could have gotten out of the car and called someone to pick him up instead of traveling back to Stark-ville with Robinson and Yarbrough. Also, Ferguson confessed that he was in the car alone with the marijuana while Robinson and Yarbrough were inside the gas station and that he could have done anything with the marijuana during that time. Additionally, Yarbrough testified that the marijuana was in the back seat near where Ferguson was sitting and that Ferguson threw the marijuana out of the car at the checkpoint.

¶ 9. Viewing the evidence in the light most favorable to the verdict, a reasonable juror could find beyond a reasonable doubt that Ferguson was guilty. Therefore, this issue is without merit.

II. AMENDMENT OF INDICTMENT

¶ 10. Ferguson asserts that the trial court erred in amending the indictment after jury selection had been completed to charge Ferguson as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007).

¶ 11. Uniform Circuit and County Court Rule 7.09 allows for amending an indictment to charge the defendant as a habitual offender; however, the rule states that the “[ajmendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” Ferguson cites to Gowdy v. State, 56 So.3d 540 (Miss.2010), to support his contention that the amendment was impermissible. However, in Gowdy, the amendment occurred after Gowdy had been convicted. Id. at 544-45 (¶ 15). Here, the amendment happened prior to trial. The rule does not limit when the amendment may occur, but it does require the defendant be given “a fair opportunity to present a defense and ... not [be] unfairly surprised.” URCCC 7.09.

¶ 12. Ferguson argues that we should look at the State’s motion to amend as “something similar to newly discovered evidence,” and either suppress the evidence or declare a mistrial. Yet Ferguson fails to cite any case law to support this contention. “Failure to cite relevant authority obviates the appellate court’s obligation to review such issues.” Simmons v. State, 805 So.2d 452, 487 (¶ 90) (Miss.2001).

III. MOTION FOR CONTINUANCE

¶ 13. After the trial court granted the State’s motion to amend the indictment, Ferguson requested a continuance so that he could retain counsel, instead of using the counsel that the trial court had appointed him after it determined him to be indigent. Ferguson claims that the trial court erred in denying his motion to continue and that such denial was a manifest injustice. This Court has previously held that a defendant “is procedurally barred from raising this on appeal, because ‘the denial of a continuance is not an issue reviewable on appeal where the denial of the continuance is not assigned as a ground for a new trial in the defendant’s post-trial motion for a new trial.’ ” Johnson v. State, 926 So.2d 246, 251 (¶ 14) (Miss.Ct.App.2005) (quoting Crawford v. State, 787 So.2d 1236, 1242 (¶25) (Miss.2001)).

¶ 14. In his motion for a new trial, Ferguson only states that the “verdict was contrary to law and against the overwhelming weight of the evidence.” Ferguson fails to assert any error regarding the trial court’s denial of his motion for a continuance. Even excusing the procedural bar, the trial court did not err in denying Ferguson’s motion.

¶ 15. This Court will only reverse the trial court’s denial of a motion for continuance if it is “shown to have resulted in manifest injustice.” Smiley v. State, 815 So.2d 1140, 1144 (¶ 14) (Miss.2002) (citations omitted). Ferguson moved for a continuance to hire new counsel. When the trial court asked him if he had the financial means to do so, Ferguson stated that he had money from his income tax return and that he could borrow the money from his girlfriend. The trial court stated that it was not convinced of Ferguson’s ability to hire new counsel, noting specifically that he had previously attested that he was indigent and that if he had received a windfall, he had an obligation to inform the court, which he never did. The trial court also noted that Ferguson had plenty of time to hire new counsel in the two years prior to trial.

¶ 16. Ferguson simply raises the blanket assertion that “the manifest injustice is that [he] is now sentenced to serve eight (8) years as an [sic] habitual offender, without the possibility of parole.” Ferguson fails to offer any showing of manifest injustice. The trial court was within its discretion to deny the motion for continuance because Ferguson had attested to being indigent, had failed to offer proof that he now could afford to hire new counsel, and had failed to retain new counsel in the two years prior to trial. This issue is without merit.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 17. Ferguson argues that his counsel was ineffective by failing to object to the admissibility of the picture of a text message sent to his phone after the arrest, by conceding that Ferguson was guilty of possession, and by failing to ask the jury to find Ferguson not guilty.

¶ 18. To succeed on a claim of ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficiency was prejudicial. Commodore v. State, 994 So.2d 864, 872 (¶ 15) (Miss.Ct.App.2008) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The performance must be so deficient “that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). Also, the defendant must show that the prejudice was so great that a reasonable probability existed that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 872 (¶ 16) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “Furthermore, the merits of an ineffective-assistance-of-counsel claim on direct appeal should be addressed only when (1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Robinson v. State, 68 So.3d 721, 723 (¶ 10) (Miss.Ct.App.2011). This Court has stated:

The question presented is not whether trial counsel was or was not ineffective but whether the trial judge, as a matter of law, had a duty to declare a mistrial or to order a new trial, sua sponte on the basis of trial counsel’s performance. “Inadequacy of counsel” refers to representation that is so lacking in competence that the trial judge has the duty to correct it so as to prevent a mockery of justice.

Jackson v. State, 78 So.3d 1176, 1181 (¶ 20) (Miss.Ct.App.2011) (citations omitted).

¶ 19. From a reading of the record, we find no obvious deficiencies that would have required the trial court to declare a mistrial. As a result, we deny relief on this issue without prejudice, so that Ferguson, if he so chooses, may present his claims of ineffective assistance of counsel in a petition for post-conviction relief.

¶ 20. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF MARIJUANA IN AN AMOUNT GREATER THAN 250 GRAMS BUT LESS THAN 500 GRAMS AND SENTENCE AS A HABITUAL OFFENDER OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION AND A $50,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: BARNES, J.,

text:
    Willie MARSHALL, Jr. a/k/a Willie Marshall, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00694-COA.
    Court of Appeals of Mississippi.
    Sept. 3, 2013.
    Rehearing Denied Feb. 11, 2014.

      Willie Marshall Jr., appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. Willie Marshall Jr. was indicted by a Bolivar County grand jury on April 29, 1986, for possession of cocaine with intent to sell pursuant to Mississippi Code Annotated section 41-29-139 (Supp.1985). The indictment noted that Marshall was to be charged as a habitual offender under Mississippi Code Annotated section 99-19-81 (Supp.1985) and listed twenty prior convictions with sentences of one year or more to support the classification. On September 22, 1986, Marshall pleaded guilty to the charge, and the circuit court sentenced him to the maximum penalty of thirty years in the custody of the Mississippi Department of Corrections and a $1,000,000 fine.

¶ 2. On December 15, 2011, Marshall filed a motion for post-conviction relief (PCR) with the Bolivar County Circuit Court. In the PCR motion, Marshall claimed: (1) he was denied due process, as the indictment failed to specifically provide the amount of cocaine and, therefore, failed to allege an essential element of the crime; (2) he was denied due process because the habitual-offender language in the indictment was preceded by the phrase “against the peace and dignity of the State”; and (3) his sentence exceeds the maximum allowed by law. As observed by the circuit court in its order, Marshall has sought relief from his 1986 conviction “in almost every possible legal forum during the past twenty-five years,” which normally would procedurally bar the claims in his PCR motion from review. See Miss.Code Ann. § 99-39-23(6) (Supp.2012). He is also well outside the three-year statute of limitations for filing a PCR motion. See Miss.Code Ann. § , 99-39-5(2) (Supp. 2012). However, the circuit court declined “to apply procedural bars to any claim that involve[d] a fundamental right” and addressed the merits of Marshall’s claims. The circuit judge concluded that “all of Marshall’s claims are either without merit, have been waived, or are procedurally barred.” Accordingly, the circuit court denied the PCR motion on February 6, 2012.

¶ 3. On appeal, Marshall cites fourteen assignments of error; however, as noted above, only three issues were contained in his PCR motion before the circuit court. “[A] defendant who fails to raise an issue in his motion for post-conviction relief before the trial court may not raise that issue for the first time on appeal.” Fluker v. State, 17 So.3d 181, 183 (¶ 5) (Miss.Ct.App.2009) (citing Gardner v. State, 531 So.2d 805, 808-09 (Miss.1988)). Therefore, we will review only those issues addressed by the circuit court.

STANDARD OF REVIEW

¶ 4. “When reviewing a denial of a PCR motion, this Court will not reverse the circuit court’s factual findings unless they are clearly erroneous.” Bell v. State, 105 So.3d 401, 403 (¶ 5) (Miss.Ct.App.2012) (citing Smith v. State, 12 So.3d 563, 564 (¶ 4) (Miss.Ct.App.2009)). Questions of law, however, are reviewed de novo. Id.

DISCUSSION

I. Whether the indictment failed to contain an essential element of the charged offense.

¶ 5. In his motion, Marshall claimed that “the indictment failed to provide the nature and cause of the accusation, namely ‘two (2) grams but less than ten (10) grams,’ ” and this failure affected his fundamental right of due process. Marshall cited Hampton v. State, 860 So.2d 827 (Miss.Ct.App.2003), to support his claim. In Hampton, this Court held “that the nature and quantity of the drug involved is an essential element of the crime that must be alleged in the indictment and proven beyond a reasonable doubt at trial.” Id. at 828 (¶ 5).

¶ 6. However, as the circuit court noted in its order, our holding from Hampton has been clarified in more recent decisions. In Fair v. State, 93 So.3d 56, 58 (¶ 7) (Miss.Ct.App.2012), this Court stated:

Under Mississippi law, “the penalty for the sale of cocaine is the same regardless of the quantity sold.” Smith v. State, 973 So.2d 1003, 1007 (¶ 10) (Miss.Ct.App.2007); see also Miss.Code Ann. § 41-29-139(a)(l), (b)(1). Therefore, “the amount of cocaine sold is not an essential element of the crime.” Smith, 973 So.2d at 1007 (¶ 10) (citing Williams v. State, 821 So.2d 883, 887 (¶ 16) (Miss.Ct.App.2002)). As such, an indictment is not defective for failing to list a quantity of cocaine in the context of a sale of cocaine charge. Id. at 1006-07 (¶ 10). In fact, Mississippi law is clear that a quantity or amount of cocaine is not required to be listed in the indictment for a charge of sale of cocaine.

Accordingly, we find no error in the circuit court’s finding that this claim was without merit.

II. Whether the language of the indictment rendered it fatally defective.

¶ 7. Marshall notes that the portion of the indictment that charged him as a habitual offender came after the language “against the peace and dignity of the state.” In McNeal v. State, 658 So.2d 1345 (Miss.1995), Michael McNeal asserted this identical argument made by Marshall. The McNeal court held that “a criminal indictment must conclude ‘against the peace and dignity of the state,’ ” and as a result, McNeal’s habitual-offender status was vacated. Id. at 1350 (quotation marks omitted).

¶ 8. However, shortly thereafter, in Brandau v. State, 662 So.2d 1051 (Miss.1995), the supreme court declined to extend its holding in McNeal, finding that the defendant’s failure to object to the form of the indictment waived the issue. Id. at 1054-55. In Voyles v. State, 822 So.2d 353, 358 (¶¶ 20-22) (Miss.Ct.App. 2002), this Court considered this issue and found that the failure to object to language in the indictment waived the issue. More recently, the Supreme Court has stated “that the inclusion of the habitual offender portion of an indictment after the words ‘against the peace and dignity of the State of Mississippi’ does not affect a fundamental right and may be waived on appeal.” Ross v. State, 954 So.2d 968, 1015 (¶ 126) (Miss.2007) (citing Crawford v. State, 716 So.2d 1028, 1050-51 (¶83) (Miss.1998) (superseded on other grounds)).

¶ 9. McKenzie did not object to the form of the indictment; therefore, we agree with the circuit judge’s finding that Marshall waived this issue and is not entitled to relief on this claim.

III. Whether his sentence and fine exceeded the maximum allowed by law.

¶ 10. In his PCR motion to the circuit court, Marshall argued that his sentence and fine exceeded the maximum allowed by statute. A petitioner’s “right to be free from an illegal sentence is a fundamental right”; thus, it is not subject to the three-year statute of limitations for filing a PCR motion. Desemar v. State, 99 So.3d 279, 281 (¶ 7) (Miss.Ct.App.2012) (citations omitted).

¶ 11. Marshall abandons this claim on appeal. Regardless, we agree with the circuit court that there is no merit to this claim. Marshall pleaded guilty to possession of cocaine with intent to sell. Section 41 — 29—139(b)(1) states that any person convicted of possession of a Schedule II controlled substance (in this case, cocaine) “may, upon conviction, be imprisoned for not more than thirty (30) years and shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars ($1,000,000.00), or both[.]” As Marshall was charged as a habitual offender, the circuit judge had no discretion in sentencing; he was required to subject Marshall to the maximum sentence provided by law.

¶ 12. Accordingly, we find no error in the circuit court’s denial of Marshall’s PCR motion.

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

LEE, C.J, IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.