author: BARNES, J.,

text:
    Christopher Michael CARPENTER a/k/a Christopher Carpenter, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00504-COA.
    Court of Appeals of Mississippi.
    Sept. 3, 2013.
    Rehearing Denied Nov. 26, 2013.
    Certiorari Denied Feb. 27, 2014.

      Justin Taylor Cook, George T. Holmes, Jackson, attorneys for appellant.

      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. Christopher Michael Carpenter was convicted on two counts of lustful touching of a child and sentenced to fifteen years on each count to be served in the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run consecutively and fifteen years to be suspended, and five years of post-release supervision. Carpenter appeals his convictions, and finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2009, Carpenter was living with his girlfriend and her seven-year-old daughter, “Hope.” On March 14, 2009, Hope stayed overnight at her aunt’s home and revealed that Carpenter had made her watch “dirt/’ movies when the two were alone. The next morning, Hope additionally told her aunt that Carpenter would tickle her, “take and hide her panties,” and make her touch his “weewee.” The aunt quickly contacted family members, including Hope’s father. Hope reiterated to her father what she had told her aunt, and he contacted the police.

¶ 3. As a result, Hope was removed from her home by the Department of Human Services (DHS) and taken to a shelter. At the request of DHS, Dr. Jule Miller, a clinical psychiatrist, interviewed Hope on March 18, 2009, to establish her emotional and mental status to determine whether she should be permanently removed from the home. During the interview, Hope told Dr. Miller the same information she had related to others-that Carpenter made her watch movies with naked people in them, told her to “rub his private part up and down,” tickled her, and took her panties away.

¶ 4. On March 4, 2010, Carpenter was convicted on two counts of touching a child for lustful purposes and sentenced to fifteen years on each count in the custody of the MDOC, with the sentences to run consecutively and fifteen years to be suspended, with five years of post-release supervision. He subsequently filed a motion for a new trial, which the circuit court denied. Carpenter now appeals his convictions to this Court, claiming that the circuit court abused its discretion in the admission of evidence and that the circuit court improperly denied his motion for a mistrial.

DISCUSSION

I. Whether the circuit court misapplied Mississippi Rule of Evidence 803(4) by admitting into evidence the interview conducted by Dr. Miller.

¶ 5. “The standard of review applied to a circuit judge’s admission or exclusion of evidence and testimony is abuse of discretion.” Quinn v. State, 97 So.3d 92, 96 (¶ 10) (Miss.Ct.App.2012) (citing Wade v. State, 583 So.2d 965, 967 (Miss.1991)). Mississippi Rule of Evidence 803(4) provides that the following hearsay statements made for the purposes of medical diagnosis or treatment are admissible:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term “medical” refers to emotional and mental health as well as physical health.

Admission of hearsay testimony under Rule 803(4) involves a two-part test: “First, the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on in treatment.” Wilson v. State, 96 So.3d 721, 727 (¶ 16) (Miss.2012) (quoting Branch v. State, 998 So.2d 411, 414 (¶10) (Miss.2008)). Carpenter claims Hope did not see Dr. Miller for purposes of a medical diagnosis or treatment; therefore, the circuit court abused its discretion allowing Hope’s statements to Dr. Miller to be allowed into evidence.

¶ 6. We find no merit to Carpenter’s claim. Dr. Miller testified that DHS requested that he interview Hope to determine whether she had been sexually abused and to determine the best course of action for her.

Q. And what was the purpose of the evaluation?
A. DHS had contacted me and said [Hope] was in their shelter. And they wanted an evaluation done to see if she was sexually abused or not. I think their concern at that moment was what are they going to do with her, and if they have to keep her in their shelter and what could they do with her. They wanted that question done.

Dr. Miller also said that Hope’s mother had contacted him two days prior to being contacted by DHS to set up an appointment.

¶ 7. Furthermore, it was important for DHS to confirm through Dr. Miller’s interview that Hope was abused by a member of her household in order to remove her from that environment. “When the victim identifies someone in her household as her abuser, these statements are ‘reasonably pertinent to treatment and, consequently, reasonably relied upon by physicians in diagnosis and treatment.’ ” Pittman v. State, 109 So.3d 599, 602 (¶ 12) (Miss.Ct.App.2013) (quoting Eakes v. State, 665 So.2d 852, 866 (Miss.1995)). “The scope of Rule 803(4) encompasses a child’s identification of a molester under the theory that part of the treatment of an abused child includes reasonable efforts to isolate the child from the abuser.” Bridgeman v. State, 58 So.3d 1208, 1215 (¶ 32) (Miss.Ct.App.2010) (citing Rowlett v. State, 791 So.2d 319, 321 (¶ 4) (Miss.Ct.App.2001)).

¶ 8. Consequently, we find no abuse of discretion in the circuit court’s ruling that Dr. Miller’s interview was admissible as a hearsay exception under Rule 803(4), as isolation of a child from her abuser is part of the treatment for that child.

II. Whether the circuit court erred in failing to make a reliability determination regarding Hope’s statements to Dr. Miller.

¶ 9. Carpenter also contends that the circuit court erred in failing to make a determination of reliability concerning Hope’s statements to Dr. Miller. Both Mississippi Rules of Evidence 803(4) (medical diagnosis/treatment, supra) and 803(25) (the “tender years” exception) require that testimony be reliable or trustworthy. Hope was seven years old at the time of the interview; therefore, she would certainly qualify as a child of tender years. Carpenter argues that the judge did not submit an “on-the-record reliability determination.”

¶ 10. We find that the record does not support Carpenter’s claim. Prior to trial, the circuit court conducted a hearing outside the presence of the jury. At the hearing, the court heard testimony not only from Hope, but also from Hope’s aunt, her father, and the deputy sheriff that handled the case. The circuit judge determined:

Considering any apparent motive on the declarant’s part to lie, the general character of the declarant, the number of persons that were present and heard the statements that were made, the spontaneity of the statements made, the timing of the declaration, the relationship between the declarant and the witnesses, the possibility of faulty recollection, the certainty of the statements made, the credibility of the persons testifying about the statements, the age and maturity level of the declarant, whether any suggestive techniques were used in eliciting the statements, and whether the declarant’s age, knowledge, and experience make it unlikely or rather the likeliness of the declarant’s statement[s] being fabricated, and in toto including or considering the time, content, and circumstances of the statements made, the court finds it provides a substantial in-dicia of reliability, and accordingly, the [Sjtate’s motion is sustained[.]

(Emphasis added). Therefore, the circuit judge clearly made an affirmative finding of reliability concerning Hope’s statements under Rule 803(25).

¶ 11. Hope’s statements in the recorded interview did not differ from Dr. Miller’s testimony and what other witnesses had testified to at trial. Hope also gave in-person testimony during the trial. In fact, defense counsel objected at trial (although not on appeal) that the interview was cumulative evidence. Accordingly, we find that the circuit court made an on-the-record finding of reliability regarding Hope’s statements and that the admission of the recorded interview into evidence was not an abuse of discretion.

III. Whether the circuit court allowed Dr. Miller to testify outside his field of expertise.

¶ 12. The circuit court admitted Dr. Miller as an expert in the field of clinical child psychiatry, to which the defense had no objection. During his testimony, Dr. Miller rendered his expert opinion that Hope displayed characteristics consistent with a child who had been sexually abused. The defense objected to this testimony, and the circuit judge overruled the objection. On appeal, Carpenter argues that since Dr. Miller was not offered as an expert in forensic examination of children, his testimony regarding whether the victim’s behavior and statements were consistent with a child who has been sexually abused was inadmissible.

¶ 13. Dr. Miller, who is board certified in child and adolescent psychiatry, stated that he had conducted numerous interviews with children who had been sexually abused.

Q. Doctor, through your education, your training, and your practice, have you had the opportunity to watch the behavior of children who suffer from all types of abuse, not just sexual abuse?
A. Yes.
Q. And have you been trained to assess those children who suffer from different types of abuse?
A. Yes.

Later, under cross-examination, he also testified:

Q. Okay. And have you had any specialized training for specifically being able to determine whether or not a child has been sexually abused?
A. That was contained in my child psychiatry training.

Dr. Miller admitted he had not attended any specialized forensic interview training; he had only received specialized training as a child psychiatrist. However, as the State notes on appeal:

While a forensic interview expert from a child advocacy center would have months of training and supervision in using the “finding words” accepted protocol, Dr. Miller had many years of medical education, internship and training, passed professional board tests, and had more than twenty years of practice in questioning and dealing with children’s problems on a daily basis.

(Emphasis added).

¶ 14. In Burbank v. State, 800 So.2d 540, 545 (¶ 11) (Miss.Ct.App.2001), this Court found no error in a clinical psychologist’s testimony, under Rule 803(4), that the result of her assessment “was consistent with a child that had been sexually abused.” We held: “This conclusion is proper and within the scope of expert testimony.” Id. During the interview, Dr. Miller asked Hope open-ended questions and tried to establish a rapport with the child. There is nothing to suggest that he specifically questioned her with the motive to elicit information for legal purposes. Dr. Miller did not testify as to the truth of Hope’s statements or as to whether she had, in fact, been sexually abused. Rather, he confirmed, based on his expertise and education, that her behavior was “consistent with other children that had been sexually abused.”

¶ 15. Thus, we find that the circuit court did not abuse its discretion in admitting Dr. Miller’s testimony, as it was within the scope of his expert-witness designation.

IV. Whether the circuit court erred in not granting the defense’s motion for a mistrial due to the fact that a juror fell asleep during the trial.

¶ 16. Carpenter claims that the circuit court should have declared a mistrial because one of the jurors was sleeping during presentation of the audio evidence of Hope’s interview with Dr. Miller. After the playing of the audio recording, defense counsel noted to the court that several jurors had been asleep during the playing of the recording. The circuit judge observed that Juror Three “did appear, in the court’s opinion, to be sleeping.” He denied the motion for a mistrial, but stated that he reserved the right to rule on the issue later. Carpenter argues on appeal: “The [circuit] court took into consideration whether to replace the sleeping juror with an alternate, but never ruled.”

¶ 17. The Mississippi Supreme Court has stated that a sleeping juror is a matter of “great concern” to the courts. See Church v. Massey, 697 So.2d 407, 414 (Miss.1997).

[However, t]his Court will not lightly interfere with a finding of fact made by the [circuit] judge in a criminal case, and it will reverse only when it is satisfied that the [circuit] court has erred in holding a juror competent, when this Court is clearly of the opinion that he was not a competent juror.

Id. (quoting Woodward v. State, 533 So.2d 418, 424 (Miss.1988) (vacated in part on other grounds)). In the present case, the record reflects that following the conclusion of testimony, the circuit judge appropriately replaced the sleeping juror with an alternate juror. See Miss.Code Ann. § 13-5-67 (Rev.2012) (“Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties.”). Therefore, we find that the circuit judge properly exercised his discretion in excusing Juror Three and replacing him with an alternate juror. This assignment of error is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF COUNTS I AND II, TOUCHING OF A CHILD FOR LUSTFUL PURPOSES, AND SENTENCES OF FIFTEEN YEARS FOR EACH COUNT, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . The name of the victim has been changed to protect her identity.

      . Furthermore, the failure to make an affirmative finding under either Rule 803(4) or Rule 803(25) does not warrant an automatic reversal. In Anthony v. State, 23 So.3d 611, 619 (¶ 38) (Miss.Ct.App.2009), this Court stated:
      [T]he circuit court failed to make an affirmative finding that the statements in the abuse record were made under circumstances substantially indicating trustworthiness. However, this Court has held that a [circuit] court’s failure to make a finding of "substantial indicia of reliability” under the “tender-years exception,” was not reversible error where there was sufficient evidence in the record supporting a finding of reliability. Sharp v. State, 862 So.2d 576, 580 (¶ 15) (Miss.Ct.App.2004). Likewise, we find the circuit court should not be reversed for failure to affirmatively find trustworthiness pursuant to [Rule] 803(4) under such circumstances. Since, taking the record as a whole, there is sufficient evidence to support a finding of trustworthiness, we find that admission of the abuse record was not reversible error.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Michael Wayne DEES a/k/a Wayne Dees a/k/a Michael Dewayne Dees a/k/a Michael W. Dees, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00641-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2013.
    Rehearing Denied Feb. 25, 2014.

      Office of State Public Defender by Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In March 2012, Michael Dees was convicted in the Desoto County Circuit Court of possession of morphine in an amount less than ten grams but more than two grams. Due to his prior convictions, he was sentenced as a habitual offender. He is currently serving an eight-year sentence in the custody of the Mississippi Department of Corrections (MDOC), without eligibility for early release or a reduction in his sentence. Aggrieved by the circuit court’s denial of his motion for a new trial, he appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On the morning of July 15, 2011, Dees and his brother, Steven, were pulled over in Southaven, Mississippi, by Southa-ven Police Officer Roy Hurst. Officer Hurst testified that the Southaven Police Department had received a complaint alleging a vehicle fitting Dees’s vehicle’s description was being driven recklessly. Officer Hurst then spotted Dees’s vehicle, with Steven at the wheel and Dees in the passenger’s seat. Officer Hurst testified that because Steven was not wearing a seat belt, he initiated a traffic stop.

¶ 3. As he approached the vehicle, Officer Hurst noticed excessive movement from both Steven and Dees. He also noticed that both men were sweating profusely. After informing the men why he had pulled them over, Office Hurst asked for Steven’s driver’s license and proof of insurance. Steven did not have either.

¶ 4. Officer Hurst then requested that both men exit the vehicle. Noticing that the men were still engaging in nervous behavior, he asked if he could search the vehicle. Steven consented to the search. However, prior to searching the vehicle, Officer Hurst did a safety pat down of the men. At that time, he discovered a syringe containing residue he suspected was narcotic residue in Dees’s pocket. He then searched the vehicle and discovered a pill bottle wedged into the back seat cushions., Officer Hurst removed the bottle from the vehicle. When Dees saw Officer Hurst with the bottle, he stated that the pills and the bottle were his. The bottle contained eight assorted pills. Officer Hurst identified several of the pills as Schedule II narcotics, and quickly notified his superior officer. Detective Lance Shepard, a narcotics detective with the police department, was sent to assist Officer Hurst. After being briefed by Officer Hurst, Detective Shepard processed the scene.

¶ 5. Dees was taken into custody. Detective Shepard testified that during questioning, Dees told him that the bottle and the pills both belonged to him. Detective Shepard testified that Dees further stated he had suffered injuries several years pri- or from an accident and had gotten the pills from a friend. Dees indicated that he took the pills in order to reduce his pain level. Dees also admitted that he injected the pills with the syringe that Officer Hurst had discovered in Dees’s pocket.

¶ 6. The pills were sent to the Mississippi Crime Laboratory. Eric Frazier, a forensic scientist specializing in controlled-substance analysis, received the pills for analysis. After testing, Frazier determined that the pills were morphine, a Schedule II drug.

¶ 7. Dees was indicted by a grand jury for possession of morphine in an amount less than ten units but more than two units. The indictment was later amended to reflect Dees’s status as a habitual offender due to two separate felony convictions in Tennessee. Dees pleaded not guilty. The trial began on February 27, 2012.

¶ 8. Officer Hurst, Detective Shepard, and Frazier testified on behalf of the State. Dees and his sister, Debra White, testified for the defense. White stated that she observed Dees and Steven on the morning of the incident. She recalled seeing Steven counting out pills and placing them in a bottle that looked identical to the bottle Officer Hurst discovered in the vehicle. She testified that she never saw Dees handle the pills, nor did she believe Dees knew Steven had the pills. Dees also testified that the pills were not his. He stated that he knew Steven was on parole and was afraid Steven would be sent back to prison if the authorities discovered that the pills were Steven’s. He testified that he was attempting to protect his brother by lying to the authorities about his ownership of the pills.

¶ 9. After deliberations, the jury returned a guilty verdict. Dees filed a motion for a new trial, stating the evidence clearly showed that the pills were Steven’s. The circuit court denied the motion. Dees was sentenced to eight years in the custody of the MDOC. Due to his status as a habitual offender, he is not eligible for early release or any reduction in his sentence. He now appeals the circuit court’s order denying his motion for a new trial.

DISCUSSION

1110. A motion for a new trial challenges the weight of the evidence. Bush v. State, 895 So.2d 886, 844 (¶ 18) (Miss.2005). In reviewing the denial of a motion for a new trial, we analyze the circuit court’s decision under an abuse-of-discretion standard. Vaughn v. State, 972 So.2d 56, 59 (¶ 11) (Miss.Ct.App.2008) (citing Dilworth v. State, 909 So.2d 731, 736 (¶ 17) (Miss.2005)). We will only overturn a circuit court’s decision to deny a motion for a new trial when a verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted).

¶ 11. Dees asserts that although he told authorities that the pills and the bottle were his, he corrected his statement during his testimony at trial. He claims that his testimony, wherein he claimed he had lied to authorities to protect his brother and that the pills were actually not his, outweighs the other evidence against him. He also argues he is exonerated by White’s testimony that she saw Steven counting the pills and placing them in the bottle.

¶ 12. However, Officer Hurst and Detective Shepard both testified that Dees admitted to them the pills and the bottle were his. Officer Hurst also discovered a syringe on Dees’s person, which Dees later admitted to Detective Shepard he used to inject the pills. In sum, this is a witness-credibility issue.

¶ 13. It is well settled that “[t]he jury determines the weight and credibility of witness testimony.” Nelson v. State, 10 So.3d 898, 905 (¶ 29) (Miss.2009). As such, it was within the jury’s province to determine whose testimony was the most credible. In addition to the testimonies of Officer Hurst, Detective Shepard, and Frazier, physical evidence in the form of the syringe was found in Dees’s pocket. As such, we cannot find that the testimonies of Dees and White outweighed those of Officer Hurst, Detective Shepard, and Frazier, as well as the physical evidence presented. The jury was in the proper position of deciding whom to believe. We will not overturn its decision. Likewise, we will not overturn the circuit court’s denial of Dees’s motion for a new trial. This issue is without merit.

¶ 14. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE AS A HABITUAL OFFENDER OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


author: FAIR, J.,

text:
    Albert Lewis WATTS a/k/a Albert L. Watts, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01838-COA.
    Court of Appeals of Mississippi.
    Feb. 25, 2014.

      Edmund J. Phillips Jr., Newton, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., BARNES and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Albert Watts was convicted of armed robbery and sentenced to life imprisonment as a habitual offender. On appeal, Watts argues: (1) the trial court erred in not declaring a mistrial or instructing the jury to disregard the testimony of State witness Judice Eubanks, and (2) the trial court improperly sentenced him as a habitual offender. We affirm Watts’s conviction but remand for resentencing.

FACTS

¶ 2. On November 25, 2011, Maria Luna was the only employee working the cash register at the U-Stop convenience store in Carthage, Mississippi. Luna had her two daughters with her inside the store. Sometime after 6 p.m., Jose Pla-sencia entered the store and asked to use the restroom. When Plasencia came back to return the key, Watts entered the store. Watts had a screwdriver in his hand and had the hood on his sweatshirt pulled over his head. Holding the screwdriver, Watts demanded money and threatened to take Luna’s children if she did not cooperate. At Watts’s command, Luna opened the cash register and the safe. She then ran outside the store with her children and called the police. Carthage police officers arrived and talked to Luna about what happened. Later that day, the police showed Luna a photo lineup. She identified Watts as the man with the screwdriver. Watts was arrested and charged with armed robbery.

¶ 3. Luna testified at trial and identified Watts again in the courtroom as the man with the screwdriver. The State also subpoenaed Eubanks, the girlfriend of Pla-sencia. Eubanks testified that, on the day of the robbery, Plasencia and Watts were at her house drinking and smoking. Watts asked her and Plasencia to drive him to the store; both men went inside while she remained in the van. She said Plasencia then walked outside and told her that Watts was robbing the place. At that time, Eubanks saw a lady and two young girls walk outside the store. She testified that shortly thereafter, Watts walked out of the store and entered the van. During cross-examination, Eubanks stated that she did not see anything that occurred inside the store. Toward the end of her cross-examination, she admitted that she had consumed “half a case” and a bottle of wine before she testified. On redirect, Eubanks testified that her testimony was consistent with the statement she gave police on the day of the robbery. On recross, she admitted that she also had been drinking the day of the robbery. Neither the State nor defense counsel made any objections. At the close of her testimony, the judge ordered Eubanks to serve three days in jail and pay a $100 fine.

¶ 4. On September 5, 2012, Watts was convicted and sentenced as a habitual offender to life imprisonment, without the possibility of parole, probation, or suspension or reduction of his sentence under Mississippi Code Annotated section 99-19-83 (Rev.2007). Watts now appeals.

DISCUSSION

1. Eubanks’s Testimony
¶ 5. Watts argues that the trial court denied him a fundamentally fair trial by failing to declare a mistrial based on the following testimony by Eubanks during cross-examination, or to instruct the jury to disregard the testimony:
Q: When you were in Court earlier today, you left the Court and went home?
A: Yes, sir. Reason why, because when they called Jose [Plasencia’s] name and stuff, I asked Kevin Cross do I have to be here, and Kevin told me no, so that’s the reason I left.
Q: And you’ve been back at your house during this time?
A: Yes, sir.
Q: Okay. Have you had anything to drink today?
A: Oh, yes, sir. I told the police that when they got me a while ago, because I am an alcoholic and I ain’t going to deny it from the heart and I’m not going to deny it from you.
Q: Okay. How much have you had to drink today?
A: I done drunk like a half a case and wine.
Q: Half a case and wine?
A: Yes, sir.

¶ 6. “[Wjhen anything transpires during the trial that would tend to prejudice the rights of [the] defendant, he must ask the trial court for a mistrial upon the happening of such occurrence when the same is of such [a] nature as would entitle him to a mistrial.” Smith v. State, 90 So.3d 122, 126 (¶ 9) (Miss.Ct.App.2012) (quoting Blackwell v. State, 44 So.2d 409, 410 (Miss.1950)). Additionally, this Court has held that “[a] contemporaneous motion for a mistrial ‘is critical because it allows the judge to avert a mistrial, if possible, by admonishing the jury to disregard the utterance.’” Id. (quoting Knight v. State, 751 So.2d 1144, 1154 (¶ 26) (Miss.Ct.App.1999)). As the State points out, at no point did Watts move for a mistrial or object to Eubanks’s testimony. “Failure to raise an issue at trial bars consideration on an appellate level.” Birkhead v. State, 57 So.3d 1223, 1237 (¶ 48) (Miss.2011) (quoting Walker v. State, 913 So.2d 198, 217 (¶ 49) (Miss.2005)).

¶ 7. Although Watts fails to offer applicable support for his assertion that he was denied the right to a fundamentally fair trial, he does cite to Griffin v. State, 557 So.2d 542, 552 (Miss.1990), in support of his argument that reversal is required absent any objection at the trial court level. In Griffin, the court stated that where the prosecutor comments on the defendant’s right not to testify, reversal may be required even absent a contemporaneous objection. However, Watts is not alleging the State made prejudicial comments regarding Watts’s right not to testify. Watts instead argues that Eubanks’s testimony denied him the right to a fundamentally fair trial. For the foregoing reasons, we find that Watts is procedurally barred from raising this issue on appeal.

2. Watts’s Habitual-Offender Sentence

¶ 8. Watts also claims that the trial court erred in sentencing him as a habitual offender under section 99-19-83, because the State failed to prove that he served separate terms of at least one year on each of his prior convictions. In Long v. State, 52 So.3d 1188, 1195-96 (¶ 26) (Miss.2011), our supreme court stated:

Pursuant to Mississippi Code Section 99-19-83, the maximum term of life imprisonment will be imposed if the State can prove beyond a reasonable doubt that the defendant has previously been convicted of two or more felonies on charges separately brought and arising out of separate indictments at different times, that the defendant was sentenced to and served separate terms of one year or more in any state or federal penal institution, and that at least one such felony was a crime of violence.

Long, 52 So.3d at 1195-96 (¶ 26) (upholding habitual-offender enhancement where State showed defendant had been convicted of three felonies on two separate occasions and had served separate terms of more than one year in prison on each conviction). “An essential [element] of ... section [99-19-83] is that the defendant shall have served at least one year under each sentence.” Ellis v. State, 485 So.2d 1062, 1064 (Miss.1986).

¶ 9. The State introduced into evidence certified copies of two sentencing orders. On December 16, 1992, Watts pled guilty to two charges arising out of separate indictments — burglary of a storehouse and robbery. The State concedes that it was required to show evidence of the length of time served for each conviction. Because the State did not prove beyond a reasonable doubt that Watts served a term of at least one year on each sentence, this Court finds that the trial court erred in sentencing Watts as a habitual offender under section 99-19-83. Accordingly, we reverse and remand for resentencing under Mississippi Code Annotated section 99-19-81. See Ellis, 485 So.2d at 1064.

U10. THE JUDGEMENT OF THE LEAKE COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY IS AFFIRMED. THE SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS REVERSED, AND THIS CASE IS REMANDED FOR RESEN-TENCING CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND LEAKE COUNTY.

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

      . At the end of the day, the judge allowed Eubanks to go home and waived the fine.


author: GRIFFIS, P. J.,

text:
    Arthur K. COLLINS, Appellant v. Myra Helen COLLINS, Appellee.
    No. 2012-CA-01059-COA.
    Court of Appeals of Mississippi.
    Feb. 25, 2014.

      Jeanine M. Carafello, M. Judith Barnett, attorneys for appellant.
    J. Edward Rainer, Brandon, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   GRIFFIS, P. J.,

for the Court:

¶ 1. Arthur Collins appeals the modification of his separate-maintenance payments. Arthur argues that the chancellor erred when he increased his monthly payments and awarded attorney’s fees. We find no error and affirm.

FACTS

¶ 2. Arthur and Myra Helen Collins were married on August 12, 1967. One son was born during their marriage; he is now an adult. Myra is twelve years older than Arthur.

¶ 3. Arthur and Myra separated in March 1998, while living in Rankin County, Mississippi. Arthur began living with another woman.

¶ 4. In 1998, Myra filed a complaint for separate maintenance. Arthur filed a counterclaim for divorce on the ground of habitual cruel and inhuman treatment. In 2001, the chancellor entered an order granting Myra separate maintenance and denying Arthur’s counterclaim for divorce. Myra was awarded monthly separate maintenance in the amount of $1,250. Arthur was ordered to pay the $420 monthly mortgage payment on the house, pay Myra’s monthly health-insurance premium, and maintain a $25,000 life-insurance policy for her benefit. Myra was also awarded the use and possession of the home and automobile, and the furniture, appliances, and other items of personal property located at the home. When the order was entered, Myra received a monthly Social Security benefit of $142.

¶ 5. On December 29, 2010, Myra filed a petition for modification of the separate-maintenance order. Myra asked the court to increase the monthly separate-maintenance payment, award attorney’s fees, and make other modifications.

¶'6. By order entered on May 8, 2012, the chancellor modified the separate-maintenance order and granted the following relief: the monthly separate-maintenance award to Myra from Arthur was increased to $2,250 per month (beginning April 1, 2012); Arthur was ordered to pay Myra’s Medicare supplemental health-insurance premium of $182 per month; Myra was awarded a judgment against Arthur in the sum of $1,546 for arrearage for the insurance premiums; and Myra was awarded attorney’s fees in the sum of $4,234.74. Arthur now appeals this order.

STANDARD OF REVIEW

¶ 7. We review domestic-relations matters under the limited substantial-evidence or manifest-error rule. Evans v. Evans, 994 So.2d 765, 768 (¶ 9) (Miss.2008) (citing Giannaris v. Giannaris, 960 So.2d 462, 467 (¶ 8) (Miss.2007)). A chancellor’s findings of fact will not be disturbed on appeal when “supported by credible evidence and not manifestly •wrong.” Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990).

ANALYSIS

I. The chancellor did not err in granting Myra’s request for an wpward modification of the amount of separate maintenance.

¶ 8. Arthur argues that it was error for the chancellor to grant an upward modification of separate maintenance to Myra. He claims that the chancellor failed to consider the factors addressed in Crenshaw v. Crenshaw, 767 So.2d 272, 276 (¶ 18) (Miss.Ct.App.2000). Arthur asserts that the upward modification of the award is depleting his estate and has made it almost impossible for him to save money to buy a personal vehicle for himself when he retires. Arthur also claims that the upward modification of the award has created a “windfall” for Myra, because she now has significantly more income and assets and less expenses than she had at the time of the separate-maintenance order in 2001.

¶ 9. Myra responds that the chancellor did not err in increasing the separate-maintenance payments, because Arthur is able to pay the increase and maintain a reasonable standard of living.

¶ 10. In Kennedy v. Kennedy, 650 So.2d 1362, 1368 (Miss.1995), the supreme court compared the modification of separate-maintenance awards to the modification of child-support payments. The party that seeks to modify the chancellor’s order “must demonstrate a ‘substantial and material change in the circumstances of one of the interested parties arising subsequent to the entry of the decree sought to be modified.’ ” Id. (quoting McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994)).

¶ 11. Here, based on the evidence presented, the chancellor determined that a modification was necessary. The chancellor concluded that Myra’s expenses had greatly increased since 2001. The chancellor considered the health, earning capacity, entire source of income, and taxes of both parties. The chancellor carefully examined Myra’s reasonable needs and available resources (such as the use of the home, automobile, and furnishings), Arthur’s necessary living expenses, his assets, and other relevant factors. As a result, the chancellor determined that there had been a material change of circumstances that required an upward modification of the separate-maintenance order. The chancellor granted the relief discussed above.

¶ 12. The chancellor’s findings also noted that the goal of separate maintenance is to provide the normal support a spouse would have received in the intact marriage without unduly depleting the other’s estate. See Thompson v. Thompson, 527 So.2d 617, 622 (Miss.1988). Also, in King v. King, 246 Miss. 798, 802, 152 So.2d 889, 890-91 (1963), the supreme court held that “[a] decree for separate maintenance does not end the marriage. It in effect commands the husband to resume cohabitation with his wife, or in default thereof, to provide for her suitable maintenance until there may be a reconciliation.” See also Kennedy, 650 So.2d at 1367.

¶ 13. When the 2001 order was entered, Myra received Social Security benefits of $142. On October 1, 2011, Arthur began to receive Social Security benefits in the amount of $2,360; and Myra’s monthly benefit had increased to $1,095. Arthur argues that Myra’s current Social Security benefit of $1,095 and the revised separate-maintenance award of $2,250 allows her an “astounding” monthly income of $3,345, with monthly living expenses of $2,549.10. Myra is left with $795.90 in disposable income. Arthur’s income was $6,938.00, with living expenses of $1,845, leaving $5,093 in disposable income. Thus, his payments to Myra take 44% of his disposable income.

¶ 14. The chancellor applied the factors from Crenshaw to determine whether an increase in payment was necessary. The chancellor found that Arthur’s estate was not depleted, and it is not near depletion. We find that the chancellor’s judgment was supported by credible evidence and was not manifestly wrong. Therefore, we affirm the chancellor’s findings on this issue.

II. The chancellor did not err in awarding attorney’s fees to Myra.

¶ 15. Arthur next argues that it was error to award Myra attorney’s fees in the amount of $4,234.74. Arthur claims that because this is not a contempt action and there was no finding of Myra’s inability to pay, the chancellor may not award the entire amount of attorney’s fees sought.

¶ 16. In Labella v. Labella, 122 So.2d 472, 475 (¶ 12) (Miss.1998), the supreme court found that one of the parties “clearly established an inability to pay because she was unemployed at the time of trial and her only income was in the form of unemployment benefits.” The court noted that “[t]he general rule is that if a party is financially able to pay his attorney's] fees[,] he should do so, though this is a matter which is entrusted to chancellor’s sound discretion.” Id. at (¶ 13) (quoting Anderson v. Anderson, 692 So.2d 65, 74 (Miss.1997)). Also, in Hammett v. Woods, 602 So.2d 825, 830 (Miss.1992), the supreme court ruled that “[w]here the record shows an inability to pay and a disparity in the relative financial positions of the parties, we find no error” in awarding attorney fees. Here, the lower court found that “[Myra] has proven that she has an inability to pay and that [Arthur] has the much, much greater ability to pay attorney’s fees, and therefore an award of fees is appropriate in this modification proceeding.”

¶ 17. We find no error in the chancellor’s decision to award Myra attorney’s fees. We therefore affirm the chancellor’s judgment.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ„ CONCUR. JAMES, J„ CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . "[T]he court must consider [the paying spouse's] right to lead as normal a life as possible with a decent standard of living.” Crenshaw, 767 So.2d at 276 (¶ 18). This Court also noted the other considerations:
      (1) the health of the husband and his earning capacity;
      (2) the health of the wife and her earning capacity;
      (3) the entire source of income of both parties;
      (4) the reasonable needs of the wife;
      (5) the reasonable needs of the child;
      (6) the necessary living expenses of the husband;
      (7) the estimated amount of income taxes the respective parties must pay on their incomes;
      (8) the fact that the wife has the free use of the home, furnishings, and automobile, and
      (9) such other facts and circumstances bearing on the subject that might be shown by the evidence.

        Id. (quoting Brendel v. Brendel, 566 So.2d 1269, 1272 (Miss.1990); Brabham v. Brabham, 226 Miss. 165, 176, 84 So.2d 147, 153 (1955)).


author: MAXWELL, J.,

text:
    Aundrey Douglas HILL a/k/a Aundrey D. Hill a/k/a Aundrey Hill, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01386-COA.
    Court of Appeals of Mississippi.
    Feb. 25, 2014.

      Aundrey Douglas Hill, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Aundrey Hill appeals the denial of post-conviction relief (PCR) from his 2008 guilty plea to possessing stolen property and his sentence as a habitual offender. His challenge focuses on the sufficiency with which his qualifying convictions were pled in the habitual-offender portion of his indictment. After review, we find his challenge fails for both procedural and substantive reasons. First, his post-conviction attack is barred since it is untimely and subsequent to an earlier PCR motion. And second, while his indictment did not list the judgment dates of his prior convictions, the convictions were sufficiently pled to give notice of the predicate convictions relied on to support a habitual-offender sentence. We thus affirm.

Facts and Procedural History

¶2. On March 8, 2008, a grand jury charged Hill with possessing stolen property. The indictment, which charged Hill as a habitual offender, listed five prior felony convictions. On December 4, 2008, Hill pled guilty to the stolen-property charge and was sentenced as a habitual offender to serve ten years, with five years suspended — the specific sentence he and the State had negotiated.

¶ 3. On March 18, 2011, Hill filed a PCR motion seeking to vacate the habitual-offender portion of his sentence, which the circuit judge summarily dismissed. While Hill opted not to appeal the dismissal, over a year later, he filed a pro se motion for leave to file a PCR motion in the trial court. And on July 26, 2012, the Mississippi Supreme Court entered an order dismissing Hill’s motion.

¶ 4. Though he had no authority to do so, on August 8, 2012, Hill filed a second PCR motion, which the circuit judge dismissed as time-barred and successive-writ barred. Hill appealed.

Discussion

¶ 5. “We review the dismissal of a PCR motion under an abuse-of-discretion standard.” Williams v. State, 110 So.3d 840, 842 (¶ 11) (Miss.Ct.App.2013). Reversal is proper only “if the circuit court’s decision was clearly erroneous.” Id. “We review questions of law de novo.” Id.

I. Time-Bar

¶ 6. While Hill insists his second PCR motion was timely, we disagree. When a defendant challenges his or her indictment after a guilty plea, the PCR motion must be filed within three years of entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2) (Supp.2013). Hill pled guilty on December 4, 2008, and the court entered the judgment of conviction that day. Because Hill waited over three years before filing his August 3, 2012 PCR challenge, the PCR motion was properly dismissed as time-barred.

II. Successive-Writ Bar

¶7. We also find Hill’s present PCR motion was properly dismissed as a successive writ. Under Mississippi Code Annotated section 99-39-23(6) (Supp.2013), an order dismissing or denying a PCR motion is a final judgment that bars a second or successive PCR motion. And here, Hill filed his recent PCR challenge after the circuit judge had already dismissed Hill’s first PCR motion on April 15, 2011. So Hill’s PCR attack is also subsequent-writ barred.

III. Defective Indictment

¶ 8. Dispositive procedural snags aside, we find Hill’s PCR challenge to his indictment also fails on substantive grounds. We acknowledge that an indictment should list “the date of judgments” of prior convictions relied on to support a habitual-offender sentence. But the mere omission of the judgment dates of prior qualifying convictions does not necessarily render a habitual-offender charge fatally defective. Indeed, the central concern is not technical pleading, but instead the sufficiency of notice.

¶ 9. Both our supreme court and this court have upheld habitual-offender sentences where the indictment failed to strictly comply with Uniform Rule of Circuit and County Court 11.03’s requirement of listing judgment dates of predicate offenses. In Benson v. State, 551 So.2d 188, 196 (Miss.1989), the supreme court upheld a habitual-offender sentence where the indictment lacked prior judgment dates but listed the jurisdictions where the convictions were obtained and described the defendant’s prior offenses, identifying cause numbers and sentences for each offense. While the dates of the judgments were “not specifically stated in the indictment,” the other information, particularly “the cause number, afforded the defendant access to the date of the judgment.” Id. The omissions in Benson were not fatal because “information pertaining to the date of the judgment was substantially set forth in the indictment and ... sufficient information was afforded the defendant to inform him of the specific prior convictions upon which the State relied for enhanced punishment to comply with due process.” Id.

¶ 10. This court recently reached a similar result where judgment dates were omitted from an indictment but the remaining information gave sufficient notice of prior convictions supporting a habitual-offender charge. See Mitchell v. State, 58 So.3d 59, 61 (¶ 10) (Miss.Ct.App.2011) (indictment is not fatally defective for failure to include judgment dates where other information describing predicate offenses is sufficiently specific to identify judgment dates for purposes of enhanced sentence); see also Thomas v. State, 99 So.3d 1169, 1173 (¶ 14) (Miss.Ct.App.2012). Here, Hill’s indictment described five prior felony convictions. The adjudicating court' is listed for all five convictions. For four of the five listed felonies, the indictment specified the nature of the crimes—a conviction for sale of a controlled substance, two grand-larceny convictions, and one conviction for food-stamp fraud. The cause number and specific sentence were given for the first three underlying crimes. And the fourth and fifth cited convictions generally mention their related sentences.

¶ 11. After review, we find the indictment sufficiently described the prior convictions—only two of which were necessary—to put Hill on notice of, and afford him access to, the dates of his prior convictions. See Miss.Code Ann. § 99-19-81. Thus, his indictment was not defective.

IV. Bifurcated Hearing and Summary Dismissal of PCR Motion

¶ 12. Hill also suggests the circuit court’s failure to conduct a bifurcated hearing about his prior convictions under Rule 11.03(2)-(3) requires his guilty plea and sentence be vacated. We disagree. This court has previously held that a “petitioner’s status as a habitual offender can be established at the entry of a guilty plea, making it unnecessary to have a separate bifurcated hearing.” Loden v. State, 58 So.3d 27, 29 (¶ 8) (Miss.Ct.App.2011) (citing Keyes v. State, 549 So.2d 949, 951 (Miss.1989)). At the plea hearing, the judge mentioned the indictment’s recitation of Hill’s prior convictions and asked Hill if he understood he was charged as a habitual offender and would receive an enhanced “day-for-day” sentence. And Hill maintained that he understood he faced an enhanced sentence.

¶ 13. After review, we find a bifurcated sentencing hearing was unnecessary where Hill failed to challenge the predicate convictions when they were mentioned during his guilty plea. Further undermining his PCR challenge to his sentence is the fact his negotiated sentence was in line with the State’s agreed recommendation, and was only half of the ten-year mandatory sentence that is required by statute.

¶ 14. Because it was apparent from the face of Hill’s PCR motion that it was time-barred, successive-writ barred, and without merit, no hearing was necessary. See Miss.Code Ann. § 99-39-11(2) (Supp.2013). We affirm.

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

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

      . A defendant convicted as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007), as Hill was here, "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.” Here, the underlying felony— possession of more than $500 worth of stolen property — has a ten-year statutory maximum sentence. See Miss.Code Ann. § 97-17-70(4) (Supp.2013). So the circuit judge was required to sentence Hill to ten years' imprisonment, not five. But we need not address this issue because neither side has raised the mandatory nature of the sentence.

      . Under Uniform Rule of Circuit and County Court 11.03(1), in cases involving enhanced punishment for subsequent offenses, the indictment must particularly allege “the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous conviction, and the date of judgment." (Emphasis added).

      . Those convictions were:
      (1)[Hill] was convicted in the Circuit Court of Lafayette County, Mississippi, of the felony crime of sale of a controlled substance in cause number LK93-236 and was sentenced to serve a term of five (5) years[’] imprisonment;
      (2) [Hill] was convicted in the Circuit Court of Lafayette County, Mississippi, of the felony crime of grand larceny in cause number LKO-122 and was sentenced to serve a term of ten (10) years[’] imprisonment with five (5) years suspended and two (2) years[’] post[-]release supervision;
      (3) [Hill] was convicted in the Circuit Court of Lafayette County, Mississippi, of the felony crime of grand larceny in cause number LKO-122 and was sentenced to serve a term of ten (10) years[’] imprisonment with five (5) years suspended and two (2) yearsf] post[-]release supervision;
      (4) [Hill] was convicted in the Circuit Court of Pontotoc County, Mississippi, of a felony crime and served concurrent penitentiary time with the sentences detailed in subparagraphs 2 and 3 above;
      (5) [Hill] was convicted in the United States District Court for [the] Northern District of Mississippi, of the felony crime of food[-]stamp fraud and served more than a one (1) year term of imprisonment for this crime[.]

      . Additionally, Hill’s guilty-plea petition states; "I have not previously been convicted of any felony, exceptf:] ... see the continnation [sic] of the indictment." He also wrote that it was his understanding that the district attorney would recommend to the court that he receive "10 years, 5 suspended with 5 to serve habitual time, 2 years[’] supervised release thereafter.” (Emphasis added).


author: ROBERTS, J.,

text:
    Timothy STRATTON a/k/a Timothy W. Stratton, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01010-COA.
    Court of Appeals of Mississippi.
    Feb. 25, 2014.
    Justin Michael Taylor, attorney for appellant.

      Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Lee County Circuit Court found Timothy Stratton guilty of two counts of sexual battery. The circuit court sentenced Stratton to two concurrent sentences of life in the custody of the Mississippi Department of Corrections (MDOC). Stratton appeals and claims that the circuit court erred when it denied his motion for a continuance. Stratton also claims the circuit court erred when it allowed the prosecution to make an improper closing argument. Finally, Stratton claims that this Court should reverse the circuit court’s judgment and remand this matter for a new trial based on the cumulative effect of the alleged errors. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Between January and September 2010, Alison and her two siblings lived in Tupelo, Mississippi, with Stratton and his wife, Shirley. Shirley is Alison’s grandmother. Stratton is her step-grandfather. Although Alison was twelve years old when she and her siblings began living with Shirley and Stratton, she functioned at approximately a second-or third-grade level. Consequently, Alison was placed in special-education classes.

¶ 3. Since 2008, Takisha McQueen, a support therapist employed by Region III Mental Health Center, had seen Alison once or twice a week during the school year. During early September 2010, Alison told McQueen that Stratton had rubbed her breasts and performed oral sex on her, and that she had performed oral sex on him at his direction. Alison’s revelation was unsolicited. McQueen had Alison repeat her accusation for Alison’s special-education teacher, Aleda Grissett. McQueen notified the Lee County Department of Human Services. Law enforcement was also notified. Ellen Steele, a forensic interviewer with the Family Resource Center in Tupelo, interviewed Alison.

¶ 4. Stratton was arrested and indicted for two counts of sexual battery. He pled “not guilty.” On May 21, 2012, Stratton’s two-day trial began. The prosecution called Investigator Donna Franks of the Lee County Sheriffs Department, who testified regarding her role in the investigation. The prosecution also called McQueen and Grissett. They testified that Alison was developmentally disabled, and she functioned at the approximate level of a child in elementary school. They further testified regarding Alison’s accusation that Stratton had touched her inappropriately. According to Grissett, Alison said that Stratton had fondled her breasts and performed oral sex on her, and that Alison had performed oral sex on Stratton. Grissett testified that Alison had gestured to demonstrate the act of performing oral sex on Stratton. McQueen and Grissett also relayed the graphic and detailed descriptions that Alison had used to describe ejaculation.

¶ 5. Next, the prosecution called Steele, who had conducted the forensic interview of Alison. During Steele’s testimony, the prosecution played the recording of Steele’s forensic interview. Without belaboring the graphic nature of Alison’s description, it should suffice to say that Alison relayed that Stratton had touched her inappropriately, performed oral sex on her, and directed her to perform oral sex on him. Alison also indicated that Stratton had watched pornography with her. Alison testified after Steele. Alison reiterated her consistent version of events. She testified that Stratton had engaged in some form of inappropriate behavior with her approximately eight times.

¶ 6. Finally, the prosecution called Paul Howell, the chief investigator for the Lee County District Attorney’s Office. Howell testified regarding Alison’s revelation that Stratton had scars on his lower pelvis and the side of his penis. Howell also testified that he had photographed Stratton. Howell confirmed that Stratton bore two scars that matched Alison’s description, and they were only visible if one was in very close proximity to Stratton. The inference was that Alison could have only identified Stratton’s scars if she had been intimately close to his groin. The prosecution introduced the pictures of Stratton’s scars during Howell’s testimony. The prosecution rested after Howell testified.

¶ 7. Stratton chose to testify. He denied that he had ever touched Alison inappropriately. Stratton suggested that Alison’s allegations were related to the fact that he and her older brother did not get along well. Stratton admitted that he had scars on his pelvis and his penis. According to Stratton, the scar on his pelvis was caused by his belt over time, and the scar on his penis occurred when he zipped his pants during his childhood. Stratton testified that Alison must have seen the scars when she barged into his room while he was dressing himself.

¶ 8. Next, Stratton’s wife, Shirley, testified on his behalf. Shirley did not believe that Stratton had touched Alison inappropriately. She testified that Alison made up her allegations because of the disruptive relationship between Stratton and Alison’s older brother. Shirley could not explain why Alison was able to describe sexual behavior in graphic detail. Although Stratton did not deny that he had a scar on the side of his penis, Shirley testified that he did not have any such marks. She implied that the prosecution had altered Howell’s photographs to corroborate Alison’s false recollection. Shirley also testified that she took photographs of Stratton’s pelvis and penis. According to Shirley, her photographs indicated that Stratton did not have any identifiable scars on his pelvis or the side of his penis. Those photographs were introduced into evidence during Shirley’s testimony.

¶ 9. Next, Stratton called Jason Gunn. Gunn is Shirley’s son by a previous marriage. According to Gunn, he had stayed at Shirley and Stratton’s house while Alison and her siblings lived with them. Gunn testified that he had not observed any inappropriate behavior between Strat-ton and Alison. Gunn further testified that he had asked Alison about the allegations against Stratton, and she had denied that anything inappropriate had happened. However, Gunn explained that he had asked Alison about the allegations before her revelation to McQueen and Grissett. It was unclear why Gunn felt the need to ask Alison whether Stratton had touched her inappropriately before Alison’s allegations actually came to light.

¶ 10. Afterwards, Stratton called six character witnesses who all testified that they had not witnessed anything inappropriate about the relationship between Stratton and Alison. They also testified that Stratton had a reputation for truthfulness in his community. Those witnesses included one of Stratton’s next-door neighbors, the minister of his church, Shirley’s brother, his stepfather, his mother, and a friend of the family. After Stratton rested, the prosecution rested its case without calling any rebuttal witnesses.

¶ 11. As previously mentioned, the jury found Stratton guilty of both counts of sexual battery. The circuit court sentenced Stratton to two concurrent sentences of life in the custody of the MDOC. Following his unsuccessful post-trial motions, Stratton appeals.

ANALYSIS

I. CONTINUANCE

¶ 12. On April 30, 2012, the prosecution interviewed Alison in an effort to prepare her for Stratton’s upcoming trial. For the first time, Alison revealed that Stratton had a scar directly above the pubic area of his groin, and a distinctive scar on his penis. On May 3, 2012, the prosecution obtained a search warrant to photograph Stratton’s groin. The prosecution’s photographs corroborated Alison’s claims.

¶ 13. On May 8, 2012, the prosecution provided Stratton’s attorney with its photographs and an outline of Alison’s anticipated testimony regarding Stratton’s scars. Stratton’s trial was scheduled for May 21, 2012. Four days before trial, Stratton moved for a continuance, and the circuit court heard his motion that same day. According to Stratton’s attorney, he needed more time to prepare for the fact that Alison could identify Stratton’s scars. Stratton’s attorney also said that he was contemplating hiring an expert witness to examine Stratton’s scars. The circuit court denied Stratton’s motion on the basis that Alison’s awareness of Stratton’s sears did “not involve a medical issue ... [that] would necessitate expert testimony.”

¶ 14. On the day of trial, Stratton moved to prohibit the prosecution from introducing evidence that Alison could identify Stratton’s scars. According to Stratton’s attorney, he had “not had time to properly prepare a defense to that information.” The circuit court denied Stratton’s motion in limine because “there would be no purpose served by continuing this case because of the late production of these pictures.” The circuit court further noted that “this was not something in the file that [the prosecution] failed to disclose.”

¶ 15. On appeal, Stratton does not claim that the circuit court erred when it denied his motion in limine. However, he claims that the circuit court erred when it denied his motion for a continuance. We are mindful that the decision to grant or deny a motion for a continuance is within the circuit court’s sound discretion. Harden v. State, 59 So.3d 594, 601 (¶ 13) (Miss.2011). An appellate court “will reverse the denial of a continuance only when it appears that manifest injustice resulted from the decision.” Id.

¶ 16. Rule 9.04(A) of the Uniform Rules of Circuit and County Court requires that prosecutors disclose certain evidence that “is known or by the exercise of due diligence may become known to the prosecution.” The rule specifies that the prosecution must disclose the “[n]ames and addresses of all witnesses in chief proposed to be offered by the prosecution at trial, together with a copy of the contents of any statement ... and the substance of any oral statement made by any such witness[.]” URCCC 9.04(A)(1). Additionally, prosecutors must disclose “photographs relevant to the case or which may be offered in evidence[.]” URCCC 9.04(A)(5). If the prosecution fails to fulfill its disclosure obligations, a circuit court “may ... grant a continuance, or enter such other order as it deems just under the circumstances.” URCCC 9.04(1).

¶ 17. We find that the circuit court did not abuse its discretion when it denied Stratton’s request for a continuance. The Mississippi Supreme Court has held that “[t]he question of whether defendant had a reasonable opportunity to prepare to confront the [prosecution’s] evidence at trial depends upon the particular facts and circumstances of each case.” Traylor v. State, 582 So.2d 1003, 1006 (Miss.1991). As previously mentioned, the prosecution first became aware that Alison could identify Stratton’s scars on April 80, 2012. The prosecution quickly obtained a search warrant and executed it. Stratton was certainly aware that the prosecution had photographed his groin. Approximately eight days after the prosecution first became aware that Alison could identify Stratton’s scars, it supplemented its discovery responses. That was thirteen days before Stratton’s trial. The prosecution informed Stratton’s attorney that it planned to present evidence that Alison could identify his scars. The prosecution also provided the pictures that it planned to introduce into evidence. Nothing suggests that the prosecution sought to obtain a tactical advantage based on the timing of its disclosure. Instead, the prosecution made Stratton and his attorney aware of its intent as soon as it was able to do so. It was within the circuit court’s discretion to find that Stratton had a reasonable opportunity to prepare to confront the evidence that Alison could identify his scars.

¶ 18. Furthermore, the request for a continuance was based on the concept that Stratton’s attorney wanted a medical expert to examine Stratton’s scars. But Stratton’s attorney never elaborated regarding how he expected a medical expert to contribute to Stratton’s defense. It was within the circuit court’s discretion to find that it was unnecessary for a medical expert to opine on the presence of Stratton’s scars and the fact that Alison could identify them. It appears highly unlikely that a medical expert would have been able to provide the jury with any insight as to why Alison was able to identify and describe scars on Stratton’s lower pelvis and the side of his penis when she could have only seen those scars upon close inspection. Moreover, Stratton’s wife, Shirley, produced her own photographs of Stratton’s groin to attempt to illustrate that he did not have any identifiable scars. Because Stratton had no reasonable, articulable need for additional time, and there was no reason to conclude that the timing of the prosecution’s disclosure was to obtain a tactical advantage, we find that the circuit court acted within its discretion when it denied Stratton’s request for a continuance. Furthermore, the circuit court’s decision did not result in manifest injustice. There is no merit to this issue.

II. CLOSING ARGUMENT

¶ 19. During Stratton’s closing argument, his attorney stated:

What I did was ask Ms. Shirley Strat-ton, “I want you to go home with [Strat-ton], and I want you to do an inspection[] as only a wife can” — remember, this is his wife — “you take some photographs and you bring them back here.” ... You know she did an inspection[ ] as only a wife can. And she sat right there on that stand and told you she did not see any marks, and the photographs that she made are for your judgment. You take a look at them.

During the rebuttal portion of the prosecution’s closing argument, the prosecutor said:

You can see on these photographs — they have dates on them. And the dates are wrong. [That j]ust shows you what we are dealing with, the kind of folks we are dealing with, these kind of folks we are dealing with. These photographs have dates on them. Well, what they did, is they went and took some photographs on one day, right after we took ours, maybe three or four days after we took ours.... They didn’t like what they had. And then they went back two days later and took some more photographs. The dates are right there on them.

Stratton’s attorney objected and said, “That’s not in evidence.” The prosecution disagreed. The circuit court overruled the objection and said: “[T]he jury will recall what’s in evidence and what is not.”

¶20. Later, the prosecution said that Alison “has been horribly abused. Horribly. And the only people in the whole world that can protect her are you twelve people.” Stratton’s attorney interjected and said: “[T]hat was improper, telling the jury that they have got to protect this child in the community. That’s improper argument....” The circuit court stated that “the lawyers on either side in any case are granted ... a great deal of leeway in their final arguments to the jury, and if that’s an objection, it’s overruled.”

¶ 21. Stratton claims the circuit court erred when it overruled the objections to the prosecution’s statements. According to Stratton, the prosecution’s statements were inflammatory and improper comments on the evidence. Although Stratton never requested a limiting instruction, he argues that the circuit court committed reversible error when it did not sua sponte give such an instruction.

¶ 22. Our review involves a two-prong test. First, we must determine whether the prosecution’s remarks were improper. O’Connor v. State, 120 So.3d 390, 399 (¶ 25) (Miss.2013). If we find that the prosecution’s remarks were improper, then we must then determine “whether the remarks prejudicially affected the accused’s rights.” Id. We are mindful that the circuit court is “in the best position to determine if an allegedly] improper comment had a prejudicial effect; and therefore, absent an abuse of that discretion, [its] ruling will stand.” Holliman v. State, 79 So.3d 496, 500 (¶ 17) (Miss.2011). We note that “[attorneys have wide latitude in closing arguments.” Byrd v. State, 977 So.2d 405, 410 (¶ 14) (Miss.Ct.App.2008). Additionally, “any allegedly] improper comment must be viewed in context, taking the circumstances of the case into consideration.” Id.

¶ 23. In his appellate brief, Stratton claims that both comments at issue “were improper under current Mississippi case law.” Stratton cites Sheppard v. State, 777 So.2d 659, 661 (¶ 7) (Miss.2000), for the principle that prosecutors are prohibited from using tactics that are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury. Stratton further cites Sheppard for the principle that attorneys cannot state facts that are not in evidence.

¶ 24. In Sheppard, a prosecutor’s closing argument included the statement that “if the jury voted to acquit, he wanted them to call him and explain their rationale [for] finding the defense witnesses credible, so he could explain it to the victim’s family.” Id. at (¶ 6). The supreme court held that “[t]he natural and probable effect of the prosecutor’s improper statements was the creation in the minds of the jurors of an extra-legal burden of accountability to the State prejudicial to the rights of the accused.” Id. at 662 (¶ 10). We do not find that either of the statements at issue is comparable to the improper statement in Sheppard. Although the prosecution appealed to the jury to protect the victim, and the jury’s function was to determine whether there was evidence beyond a reasonable doubt that Stratton was guilty of the charges against him, we do not find that the prosecution’s comments prejudi-cially affected Stratton’s rights. The circuit court instructed the jurors that they must base their decision on the evidence, and they “should not be influenced by bias, sympathy, or prejudice.” It is “well-settled law [that] jurors are presumed to follow the instructions given by the court.” Harris v. State, 37 So.3d 1237, 1247 (¶ 37) (Miss.Ct.App.2010). However, we caution prosecutors to be mindful of the supreme court’s warning that “[a]n appeal to emotion or for sympathy for a victim can reach a point at which it is prejudicial.” Bell v. State, 725 So.2d 836, 851 (¶ 40) (Miss.1998).

¶ 25. Regarding the prosecution’s comments about the dates that appeared on the photographs, we note that those photographs had been introduced into evidence. “During closing argument, a lawyer is entitled to argue his or her case drawing all rational inferences that come from the evidence presented in the courtroom.” Easter v. State, 83 So.3d 442, 443 (¶ 5) (Miss.Ct.App.2011). The dates were on the photographs. The prosecution was allowed to draw rational inferences from the dates. It was not irrational to compare the dates on the photographs that Stratton introduced and infer that he took more photographs because he was unsatisfied with the initial ones. Additionally, the circuit court instructed the jury that “[arguments, statements, and remarks of counsel are intended to help you understand the evidence and apply the law, but [they] are not evidence.” We do not find that the prosecution’s remarks about the dates on the photographs in evidence prejudicially affected Stratton’s rights. It follows that this issue is meritless.

III. CUMULATIVE EFFECT OF ERRORS

¶ 26. Finally, Stratton claims that the cumulative effect of the errors at trial mandates that he receive a new trial. We have not found that the circuit court committed any errors. It follows that there can be no cumulative effect of errors that do not exist. Brown v. State, 890 So.2d 901, 922 (¶ 84) (Miss.2004). Consequently, there is no merit to this issue.

¶ 27. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF SEXUAL BATTERY AND SENTENCE ON EACH COUNT OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCES TO RUN CONCURRENTLY WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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

      . We use a fictitious name to protect the victim's identity.

      . According to Alison’s special-education teacher, Alison functioned at the approximate level of a six-or seven-year-old.


author: LEE, C.J.,

text:
    Ryan Quincy PUGH a/k/a Ryan Pugh, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01899-COA.
    Court of Appeals of Mississippi.
    Feb. 25, 2014.

      Ryan Quincy Pugh, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   LEE, C.J.,

for the Court:

¶ 1. This appeal arises from the dismissal of a motion for modification of sentence. The trial court dismissed the motion for lack of jurisdiction because the term of court in which Ryan Quincy Pugh was sentenced had expired. Pugh now appeals, arguing (1) the trial court erred in dismissing his motion for lack of jurisdiction; (2) his trial counsel was ineffective; and (3) the trial court erred in sentencing him to supervised post-release supervision rather than unsupervised post-release supervision. While Pugh raises three issues on appeal, the only issue properly before this Court is the trial court’s dismissal of Pugh’s motion for modification of sentence for lack of jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 9, 2009, Pugh was indicted by a Madison County grand jury for possession of more than ten but less than twenty dosage units of methylenedioxy-methamphetamine (MDMA) and for possession of a firearm by a previously convicted felon. After plea negotiations, Pugh pleaded guilty to a lesser charge of possession of more than two but less than ten dosage units of MDMA. The State agreed that the firearm count would be nolle prossed.

¶ 3. At Pugh’s plea hearing on August 10, 2009, the State recommended that Pugh be sentenced to five years in the custody of the Mississippi Department of Corrections (MDOC), with Pugh to be released after having served fourteen and one-half months; five years of unsupervised post-release supervision; and a $1,000 fine. The State also recommended that this sentence run concurrently with his federal sentence for which he had eight remaining years to serve in federal custody. The trial court accepted the State’s recommendation. On August 12, 2009, the trial court entered a judgment of conviction and “sentence instanter,” sentencing Pugh to five years in MDOC custody, with Pugh being released after serving fourteen and one-half months, followed by five years of supervised post-release supervision. This sentence was to run concurrently with Pugh’s federal sentence. The trial court also ordered Pugh to pay court costs and a $1,000 fine.

¶ 4. Pugh was discharged from MDOC custody on August 31, 2009. He then returned to the Federal Correctional Complex in Yazoo City, Mississippi, to serve the remaining portion of his federal sentence. On September 27, 2012, Pugh filed a motion in the trial court seeking modification of his sentence because the Federal Correctional Complex had not credited him for his time served in MDOC custody. This failure to credit Pugh for his MDOC time served essentially caused the remainder of Pugh’s federal sentence to run consecutively to, rather than concurrently with, his MDOC sentence. The trial court subsequently dismissed the motion for lack of jurisdiction because the term of court in which Pugh was sentenced had expired.

STANDARD OF REVIEW

¶ 5. Jurisdictional matters involve a question of law; thus the standard of review is de novo. Payne v. State, 966 So.2d 1266, 1269 (¶ 7) (Miss.Ct.App.2007).

DISCUSSION

¶ 6. Trial courts, in most circumstances, lack jurisdiction to resentence convicted felons. Creel v. State, 944 So.2d 891, 893 (¶ 6) (Miss.2006). The Mississippi Supreme Court has held that “once the case has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its judgment.” Miss. Comm’n of Judicial Performance v. Russell, 691 So.2d 929, 943 (Miss.1997) (internal quotations omitted). Pugh was sentenced on August 10, 2009. He did not file his motion for modification of sentence until September 27, 2012 — over three years later. Since the term of court in which Pugh was sentenced had ended, the trial court was powerless to change its judgment. Therefore, this issue is without merit.

¶ 7. As for the two other issues Pugh raises on appeal, these issues were not raised in the trial court and, therefore, are not appropriately before this Court. See Walker v. State, 823 So.2d 557, 561 (¶ 6) (Miss.Ct.App.2002) (failure to raise issue at trial court level bars consideration at appellate level). If Pugh so chooses, he may raise these claims in a properly filed petition for post-conviction relief. Small v. State, 81 So.3d 1179, 1181 (¶ 9) (Miss.Ct.App.2011).

¶ 8. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

IRVING AND GRIFFIS, P JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.

      . Pugh was convicted in the Southern District of Mississippi of armed carjacking and use of a firearm in a crime of violence, and was sentenced to ten years and one month in federal custody, followed by three years of probation.

      . Although the plea recommendation was for unsupervised post-release supervision, Pugh was sentenced to supervised post-release supervision.


text:
    Sedrick Bernard PRICE a/k/a Sedrick B. Price a/k/a Sedrick Price, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01846-COA.
    Court of Appeals of Mississippi.
    Feb. 25, 2014.
    Sedrick Bernard Price, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2006, Sedrick Bernard Price pleaded guilty in the Harrison County Circuit Court to the transfer of a controlled substance. He was sentenced to ten years, with nine years suspended, and three years to be served on probation, all within the custody of the Mississippi Department of Corrections (MDOC). In 2007, Price was placed on probation. Following several arrests, the Mississippi Probation Office filed a petition to revoke Price’s probation on May 29, 2009. A revocation hearing was held on August 15, 2011, and Price was ordered to serve the nine years previously suspended. Subsequently, Price filed a motion for post-conviction relief (PCR), which was denied. Price now appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On October 16, 2006, Price pleaded guilty to the transfer of a controlled substance. After being released from prison on probation in July 2007, Price moved to Florida. In 2009, Price was arrested in Florida on two separate occasions for driving with a suspended or revoked license and dealing in stolen property. Subsequently, the Mississippi Probation Office filed a petition on May 29, 2009, to revoke Price’s probation, citing these two Florida arrests. On October 29, 2010, the petition was amended to reflect additional charges of driving with a suspended or revoked license, a charge of possession of cocaine, and a charge of possession of a controlled substance. The charges were brought in Florida and Price was later incarcerated.

¶ 3. Price was returned from Florida to Mississippi during his Florida incarceration for a probation-revocation hearing held on August 15, 2011. During the hearing, Price admitted to the charges, and the circuit court found that Price had violated the terms of his probation. As such, Price’s probation was revoked, and he was ordered to serve the nine years previously suspended on his 2006 conviction of transfer of a controlled substance. Subsequently, Price filed a PCR motion, which was denied. Aggrieved, Price now appeals.

DISCUSSION

¶ 4. A circuit court’s denial of a PCR motion will not be disturbed unless the decision was 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 are reviewed de novo. Id.

¶ 5. Price argues that the circuit court erred in denying his PCR motion. He contends that the circuit court did not have the authority to revoke his probation and reinstate his suspended sentence, because his probation had expired by the time it was revoked. Price’s probation began in July 2007 and was revoked in August 2011.

¶ 6. “Probation may be lawfully revoked beyond the probationary period if a revocation petition is filed prior to the end of the probationary period — an act deemed to ‘toll’ the running of the probationary period — and the State acts on the petition within a reasonable time.” Leech v. State, 994 So.2d 850, 853 (¶ 14) (Miss.Ct.App.2008). “If this were not the law, then a probationer who violates his probation on the last day of the five [5] year period would have to be caught and given a hearing that day or his probation could not be revoked. Such reasoning would be absurd and is not the law.” Jackson v. State, 483 So.2d 1353, 1356 (Miss.1986). The petition to revoke Price’s probation was filed on May 29, 2009, well within the three-year period of Price’s probation. Therefore, Price’s probationary period had been tolled. A question remains, however, as to whether the State acted on the petition within a reasonable time.

¶ 7. In Leech, this Court found that “the determination of whether the State has reasonably pursued revocation is a fact-sensitive inquiry that should be made with considerations of practicality in mind.” Leech, 994 So.2d at 855 (¶ 19). Just prior to Price’s revocation hearing in August 2011, Price was incarcerated in Florida for various charges that led to the revocation of his probation. The circuit court found that the State had acted within a reasonable amount of time, considering Price’s incarceration in another jurisdiction at that time.

¶ 8. We agree. Accordingly, we find that the circuit court did not err in denying Price’s PCR motion since his probation had been lawfully revoked. This issue is without merit. We affirm the judgment of the circuit court.

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

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


text:
    John Thomas RAINEY, Jr. a/k/a John T. Rainey, Jr. a/k/a John T. Rainey a/k/a John Rainey, Jr. a/k/a John Rainey, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00349-COA.
    Court of Appeals of Mississippi.
    Feb. 25, 2014.

      John Thomas Rainey Jr., appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. In November 1995, John Thomas Rainey Jr. pleaded guilty to aggravated assault on a law enforcement officer. The DeSoto County Circuit Court sentenced Rainey to twenty years, with sixteen years suspended and four years to serve in the custody of the Mississippi Department of Corrections (MDOC). Rainey was sentenced as a habitual offender, and his suspended sentence was conditioned upon his future good behavior. Rainey was released from custody in May 1999.

¶ 2. In May 2008, the State filed a petition to revoke Rainey’s suspended sentence. Rainey had been convicted of a felony and indicted on five additional felony charges. After a hearing, the trial court revoked Rainey’s suspended sentence and ordered him to serve the remaining sixteen years of his sentence.

¶ 3. In September 2012, Rainey filed a motion for post-conviction relief (PCR). The trial court dismissed Rainey’s motion. Rainey now appeals, asserting the following: (1) the sentencing court failed to inform him of the conditions of his probation; and (2) he was denied the right to confrontation when receiving his sentence as a habitual offender. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App.2012).

DISCUSSION

I. CONDITIONS OF PROBATION

¶ 5. In his first issue, Rainey argues the sentencing court failed to inform him of the conditions of his probation. During his plea colloquy, the trial court informed Rainey that a portion of his sentence would be suspended “pending [Rai-ney’s] future good behavior.” Rainey was informed that after being released from prison, he would be under the jurisdiction of the DeSoto County Circuit Court for the suspended portion of his sentence. The trial court further informed Rainey that “future criminal conduct” would violate the terms of his suspended sentence, thereby forcing him to serve the remainder of his sentence in prison.

¶ 6. The record is clear that Rainey was informed his suspended sentence could be revoked if he were to engage in any criminal conduct. Rainey engaged in criminal conduct; thus, his suspended sentence was revoked. We find no error by the trial court in ruling the revocation was legally imposed. This issue is without merit.

II. RIGHT TO CONFRONTATION

¶ 7. In his other issue on appeal, Rainey argues he was denied the right to confrontation when receiving his sentence as a habitual offender. Rainey contends the “author” of the penitentiary packets (pen packs) produced at the plea hearing to prove his habitual-offender status should have been present at the hearing. We first note that this issue was not raised before the trial court; thus, it is barred from our review. Fluker v. State, 17 So.3d 181, 183 (¶ 5) (Miss.Ct.App.2009). Regardless of the bar, this constitutional challenge has been rejected. In Frazier v. State, 907 So.2d 985, 998 (¶ 43) (Miss.Ct.App.2005), this Court held that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), did not apply to self-authenticating documents such as pen packs admitted under Mississippi Rule of Evidence 902. This issue is without merit.

¶ 8. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

      . We note that the time-bar on filing motions for post-conviction relief does not apply to unlawful revocations. See Miss.Code Ann. § 99—39—5(2)(b) (Supp.2013).