text:
    Carl Sherman SPURLOCK, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-00843-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2008.
    Rehearing Denied May 19, 2009.
    Certiorari Denied July 23, 2009.

      W. Daniel Hincheliff, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   BARNES, J., for the Court.

¶ 1. This appeal proceeds from the Circuit Court of Lauderdale County, Mississippi and a judgment of conviction of capital murder and a mandatory sentence of life as a habitual offender without eligibility for parole against Carl Sherman Spur-lock. Finding no reversible error, we affirm.

FACTS

¶ 2. The following facts are taken from testimony presented at trial. Spurlock had been a casual acquaintance of Robert Van Morrison for many years. Both men knew Larry Finch, an antique dealer and the murder victim in this case. Morrison knew Finch previously through the antique business, and Spurlock had been to Finch’s house on more than one occasion prior to the night of the murder to borrow money or to sell flower pots.

¶ 3. On December 2, 2004, Spurlock went to Morrison’s home around 5:00 p.m., left after a brief time, but then returned and suggested that they go to Finch’s home to sell him some “stones.” Spurlock offered to split the money from the sale of the “stones” with Morrison. Morrison stated that he assumed “stones” meant arrowheads. Although Morrison gave Spurlock a plastic grocery bag for the “stones,” he never actually saw them. They walked to Finch’s home, and Finch readily let them in. Spurlock handed Finch the plastic grocery bag, and after Finch realized the bag was empty, Spur-lock began to stab him. Morrison testified that he never actually saw the knife. Spurlock also struck Finch on the head with a stick, which broke. Morrison ran out of the house, and Spurlock caught up with him about a block away. Spurlock told Morrison that he had killed Finch because he caught Spurlock trying to pick his pocket. Spurlock had Finch’s wallet which contained $160; Spurlock gave Morrison $60 and disposed of the wallet in a storm drain. Morrison testified that he later told the police that Spurlock had blood all over him. Morrison suggested that Spurlock clean up in a nearby creek to wash off some of the blood. After he did so, Spurlock left a shirt behind, and they went back to Morrison’s home. Spur-lock took a shower and borrowed clothes to wear. Spurlock then gave Morrison the rest of the clothes he had been wearing, and Morrison disposed of them in a storm drain. Later, after a drug dealer came by Morrison’s house, Spurlock gave Morrison the remaining $20 he owed him, and they headed to the liquor store where they parted ways.

¶ 4. Finch’s body was discovered the next morning in a pool of blood, and the police commenced the investigation of his murder. At the scene of the crime, there were signs of a struggle (broken chair, broken pots), a broken steak knife, and a bloody footprint. No fingerprints were found on the objects confiscated, and lab reports on the blood samples were never completed.

¶ 5. Detective Joe Hoadley, who was patrolling the neighborhood around Finch’s home, recognized Spurlock walking with another unidentified man in the vicinity on the evening of Finch’s murder. When the police received a tip connecting Morrison with the murder, Detective Hoadley stopped by Morrison’s home to question him. Detective Hoadley testified that he knew Morrison and had been to Morrison’s home previously due to suspicious activity which occurred around Morrison’s neighborhood. Although Morrison admitted to being the unidentified man walking with Spurlock, he denied any knowledge of the murder. However, after being questioned on two more occasions, Morrison finally confessed to his knowledge of the murder. He took the police to the storm drain where they recovered the clothes, which were wet but had no blood on them. The police were unable to recover Finch’s wallet. Weeks later, as family members were cleaning out Finch’s home, his cousin discovered a wallet in a decorative Halloween casket located in one of the bedrooms that Finch used for storage. The wallet contained Spurlock’s current driver’s license.

¶ 6. Spurlock and Morrison were both indicted for armed robbery/robbery and capital murder as habitual offenders. Morrison, in exchange for his testimony against Spurlock, pleaded guilty to a lesser charge of robbery and was sentenced to fourteen years. In addition, a pending burglary charge against Morrison was dismissed.

I. Whether the trial court erred in excluding certain evidence of the co-indictee’s prior convictions for impeachment purposes.

¶ 7. The standard of review regarding admission or exclusion of evidence is the abuse of discretion standard. Tate v. State, 912 So.2d 919, 924(¶9) (Miss. 2005). We will not reverse a trial court’s decision “unless a substantial right of the defendant is adversely affected by the improperly admitted or excluded evidence.” Young v. State, 981 So.2d 308, 313(¶ 17) (Miss.Ct.App.2007). Spurlock submits that the trial judge’s granting of the State’s motion in limine, to exclude Morrison’s prior felony convictions that were more than ten years old pursuant to Rule 609(b) of the Mississippi Rules of Evidence, was an abuse of discretion. Rule 609(b) states:

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by the specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(Emphasis added). Therefore, the admission into evidence of “any conviction is subject to the time limits of Rule 609(b).” Johnson v. State, 529 So.2d 577, 587 (Miss. 1988). The rationale is that “[t]he age of a conviction greatly lessens its probative value.” Fuller v. State, 910 So.2d 674, 680(¶ 15) (Miss.Ct.App.2005) (citing Jones v. State, 702 So.2d 419, 422(¶ 17) (Miss. 1997)). Spurlock argues that the trial judge incorrectly interpreted Rule 609(b) when he stated during pretrial motions:

I think that Rule 6.09[sie] says clearly that a witness can’t be impeached by a conviction that is more than ten — when more than ten years has elapsed since the day of conviction or the release of the witness from confinement, whichever occurs last....
And that’s just — the court determines the interest of justice and probative value of the conviction for it. I think that would allow the court to shorten that time, not lengthen the time.

(Emphasis added). The trial court, therefore, refused to allow Morrison to be impeached on his older convictions. The trial judge did allow one prior conviction for burglary and larceny, which was less than ten years old, to be admitted into evidence for impeachment purposes.

¶ 8. We agree with Spurlock that the trial judge misinterpreted the rule and erred in determining that the evidence of all crimes more than ten years old was inadmissible without conducting the balancing test required under Rule 609(b). The trial court automatically excluded the evidence without considering the provision of the rule following the applicable time limit. The language of the rule, “unless the court determines, in the interests of justice, that the probative value of the conviction supported by the specific facts and circumstances substantially outweighs its prejudicial effect,” means that the court must entertain any showing by the proponent that the convictions have probative value. If the proponent makes such a showing, then the trial court must make a probative/prejudicial determination. In the present case, the trial judge pretermit-ted this analysis. In this, the trial judge erred. Nevertheless, we find that, under the facts of this case, the error was harmless.

¶ 9. Before we can consider whether Morrison’s older convictions were admissible under the more exacting standard of 609(b), we must look to see whether they were admissible at all under 609(a). Rule 609(a) of the Mississippi Rules of Evidence reads as follows:

(a) General Rule. For the purpose of attacking the credibility of a witness, (1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party[.]

The comments to Rule 609 explain that the rule was amended in 2002 to take into consideration Mississippi Supreme Court decisions which “reasoned that when the impeachment by convictions is of a witness other than the accused in a criminal case there is little or no unfair prejudice which can be caused to a party. Thus, the probative value on the credibility of the witness will almost always outweigh any prejudice.” Specifically, the supreme court has interpreted Rule 609(a)(1) as “allowing full impeachment of prosecution witnesses without the requirement of a balancing test, except in extreme situations such as where the prosecution witness has a prior conviction that is both highly inflammatory and completely unrelated to the charges pending against the accused.” White v. State, 785 So.2d 1059, 1062(¶ 10) (Miss. 2001). Under the amended rule, “[cjonvic-tions offered to impeach any [nonparty] witness are admissible unless the court is persuaded by the opponent that the probative value is substantially outweighed by negative factors included in Rule 403.” M.R.E. 609 cmt.

¶ 10. Under the facts of this case, while Morrison’s older convictions may have had some probative value, three of them were identical to the more recent conviction that was admitted. Had the trial judge conducted the appropriate analysis under Rule 609(a), he may well have excluded these older convictions as being merely cumulative of the more recent burglary and larceny conviction. Further, given the age of the excluded convictions and their lessened probative value, the trial court might have also concluded that, under Rule 609(b), their probative value did not “substantially outweigh” even the minimal prejudicial effect.

¶ 11. Nevertheless, even if the older convictions should have been admitted under Rule 609, we find that their exclusion only amounted to harmless error. See Rogers v. State, 796 So.2d 1022 (Miss. 2001) (any error in not allowing defendant to impeach the witness with this prior conviction was harmless as testimony demonstrated witness’s extensive drug use); Hobson v. State, 730 So.2d 20 (Miss.1998) (exclusion of admissible prior convictions of a witness is harmless error if the defendant is still allowed the opportunity to elicit testimony to impeach). In the case before us, the trial judge allowed Morrison’s most recent conviction for burglary and larceny to be introduced into evidence. Under Fuller, this more recent conviction would have more probative value than the older convictions, which were excluded. Fuller, 910 So.2d at 680(¶ 15). In addition, the State addressed, in direct examination, that Morrison had been charged with the same crime as Spurlock and had entered a guilty plea to robbery. Morrison, through his guilty plea, admitted to robbery although he maintained that he never intended to rob Finch. Jury instruction C-6 regarding Morrison’s plea with the State was also issued which stated:

Robert Van Morrison has admitted to you that he pled guilty to the robbery of Mr. Finch and that he was an accessory after the fact to the murder of Mr. Finch. The Court instructs you that his testimony should be viewed by you with great care, caution and suspicion and you should give it such weight and credit as you deem it is entitled.

Morrison also admitted at trial to 'having drug issues and questionable acquaintances. The jury was given explicit instructions regarding the nature and motive of Morrison’s testimony and was aware of one prior conviction of burglary and larceny against him. As in Hobson, Spurlock was given an opportunity to examine and present probative evidence to impeach Morrison’s credibility. Jurors are given the duty to resolve any conflicts in testimony and may believe, or disbelieve, any witness. Langston v. State, 791 So.2d 273, 280(¶ 14) (Miss.Ct.App.2001). It appears from the record that it would be unlikely a jury could have mistaken Morrison for an upstanding, law-abiding citizen, even without the introduction of his older convictions.

¶ 12. In addition, Spurlock was able to confront Morrison with a more probative prior conviction that was admitted and his guilty plea. Thus, we conclude if there were any violation of the Confrontation Clause by the exclusion of the older convictions, it was merely harmless error beyond a reasonable doubt. See Smith v. State, 986 So.2d 290 (Miss.2008) (admission into evidence of a statement made by a non-testifying co-defendant in violation of the Confrontation Clause can be harmless error beyond a reasonable doubt where is it merely cumulative of other overwhelming, and largely uncontroverted evidence.)

¶ 13. We find that the trial judge’s refusal to admit all of Morrison’s prior convictions was, at most, harmless error.

II. Whether the trial court erred in denying Spurlock’s motion for a judgment notwithstanding the verdict.

¶ 14. Spurlock’s second argument is that the trial court erred in denying his motion for a JNOV since there existed “no competent evidence” to find Spurlock guilty of the crime of capital murder. Spurlock contends that Morrison substantially impeached his testimony by claiming he did not commit robbery, although he pleaded guilty to robbery. Spurlock submits:

Testimony of an accomplice, even when uncorroborated, can be sufficient to support a verdict of guilt. Catchings v. State, 394 So.2d 869, 870 (Miss.1981). However, “where [accomplice testimony] is uncorroborated, it must also be reasonable, not improbable, self-contradictory or substantially impeached.” Jones v. State, 740 So.2d 904, 910(¶ 17) (Miss. 1999) (quoting Jones v. State, 368 So.2d 1265, 1267 (Miss.1979)).

Hendrix v. State, 957 So.2d 1023, 1027(¶ 8) (Miss.Ct.App.2007). However, the supreme court recognizes that a person “may be found guilty on the uncorroborated testimony of a single witness.” Doby v. State, 532 So.2d 584, 591 (Miss.1988). Spurlock also points to various contradictions in Morrison’s testimony at trial. We find the contradictions inconsequential, with some being pure speculation on the part of Spur-lock. For example, Spurlock claims that although Morrison said he gave Spurlock a bag for the “stones,” Morrison knew the bag never had arrowheads in it. No testimony or evidence supports this accusation. This Court has held:

In appeals from an overruled motion for JNOV, the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence ... consistent with guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

McAdory v. State, 772 So.2d 1107, 1109-10(¶ 6) (Miss.Ct.App.2000). It is not the task of this Court to reweigh the facts in every case to, “in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston, 791 So.2d at 280(¶ 14). Viewing the evidence in this case in a light most favorable to the State, we do not find that a reasonable fair-minded juror could have only found the accused not guilty; accordingly, we find no error in the trial judge’s denial of the motion for a JNOV.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT AS A HABITUAL OFFENDER 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 LAUD-ERDALE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE AND CARLTON, JJ., CONCUR.

ROBERTS, J., NOT PARTICIPATING.

      . A broken leg from a piece of furniture was found at the scene of the crime and was entered into evidence.

      . Morrison was convicted of three separate counts of burglary and larceny of a storehouse: one in April 1980 and two in December 1981. There was also one conviction of escape in 1985. All sentences carried a punishment of more than one year of imprisonment.

      . Morrison was convicted of burglary and larceny of a storehouse in June 1992.

      . See White v. State, 785 So.2d 1059 (Miss. 2001) (defendant’s constitutional right to confront witnesses testifying against him was violated as he never had the opportunity to cross-examine the informant regarding his prior convictions); Young v. State, 731 So.2d 1145 (Miss. 1999) (holding that it was an abuse of discretion to exclude evidence of a key witness’s prior conviction for burglary).

      . These factors are "the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” (Emphasis added).


source: Caselaw Access Project

author: ISHEE, J., for the Court.

license: Public Domain

text:
    Maurice GRAY, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CA-00160-COA.
    Court of Appeals of Mississippi.
    Nov. 25, 2008.
    Rehearing Denied April 7, 2009.
    Certiorari Denied July 23, 2009.

      Robert Sneed Laher, Corinth, Jeffrey Lynn Ellis, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before LEE, P.J., CHANDLER and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. In June 1999, Maurice Gray was found guilty in the Circuit Court of Bolivar County of murder and aggravated assault. Gray was sentenced to serve a term of life imprisonment for the murder charge and twenty years’ imprisonment for the aggravated assault charge, with the sentences to be served in the custody of the Mississippi Department of Corrections. His convictions and sentences were affirmed by this Court in November 2002, Gray v. State, 846 So.2d 260 (Miss.Ct.App.2002). After seeking and receiving permission from the Mississippi Supreme Court to proceed, Gray filed a motion for post-conviction relief with the Circuit Court of Bolivar County, alleging that he had received ineffective assistance of counsel. After a hearing on the merits, his motion for post-conviction relief was denied by the circuit court. Finding no error, we affirm the judgment of the circuit court.

STANDARD OF REVIEW

¶ 2. When evaluating a circuit court’s decision to deny a petition for post-conviction relief, this Court will not reverse its findings unless the “decision was clearly erroneous.” Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002) (citing Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999)). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

¶ 3. Gray asserts that he was denied effective assistance of counsel at the circuit court level claiming that his trial counsel, Johnnie E. Walls, Jr., failed to: (1) adequately prepare his defense, (2) file a motion for change of venue, (3) raise a timely Batson challenge during jury selection, and (4) in general, make proper objections during trial and preserve his right to appeal when filing post-trial motions.

¶ 4. Claims for ineffective assistance of counsel are reviewed under the two-prong test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476 (Miss.1984). Stevenson v. State, 798 So.2d 599, 601-02(¶ 5) (Miss.Ct.App.2001). The “test is applied with deference to counsel’s performance, considering the totality of the circumstances.” Id. at 602(¶ 6). In order to prevail, petitioner must prove that: (1) counsel’s performance was deficient, and (2) that deficiency caused prejudice to the petitioner. Booker v. State, 954 So.2d 448, 450(¶ 10) (Miss.Ct.App.2006).

(1) Failure to Adequately Prepare

¶ 5. Gray asserts that Walls was inadequately prepared to defend his case, claiming that: (1) Walls only met with him twice prior to trial; (2) he failed to transcribe an audiotape of a preliminary hearing; and (3) he failed to seek a plea agreement. At the evidentiary hearing, Walls refuted each of these allegations.

¶ 6. Gray first complains that Walls only met with him twice prior to trial. Walls testified that he does not remember exactly how many times he met with Gray, but he knew it was more than twice. According to Walls, they reviewed the discovery and discussed the case until Walls felt comfortable with Gray’s understanding of the trial and his potential testimony if he chose to testify. Walls also said that while preparing for trial, he met with Gray’s parents, girlfriend, and witnesses on numerous occasions, and the record shows that Walls subpoenaed various witnesses for trial.

¶7. Gray’s second complaint is that Walls failed to transcribe an audiotape of a preliminary hearing that was allegedly given to him by Gray’s previous attorney, Josh Bogen. Walls testified that he remembered discussing the tape with Bogen, but he did not recall having ever actually received it. Bogen submitted an affidavit confirming that while representing Gray, he recorded Gray’s preliminary hearing. Bogen was later discharged by Gray; however, according to Bogen’s affidavit, “[t]o the best of [his] recollection, [he] turned over the tape recording of Maurice Gray’s preliminary hearing to Mr. Walls after he took over the representation of Mr. Gray.” Therefore, it is unclear if Walls ever had the tape in his possession.

¶ 8. Gray’s third complaint regarding his counsel’s allegedly inadequate preparation accuses Walls of failing to seek a plea bargain. In contrast, Walls insists that he discussed the possibility of a plea bargain with the State and that opposing counsel made it very clear they would not make such an offer in this case.

¶ 9. For the foregoing reasons, we are in agreement with the circuit court that the record indicates Walls thoroughly investigated the case and was adequately prepared for trial. Gray’s allegations do not withstand the Strickland analysis. Therefore, the issue is without merit.

(2) Failures Relating to Counsel’s Trial Strategy

¶ 10. Gray also asserts that Walls’s representation was ineffective based on his alleged failures to file any pretrial motions, make proper objections during trial, preserve Gray’s right to appeal when filing post-trial motions, and make a timely Batson challenge.

¶ 11. It is well settled that “there is a strong but rebuttable presumption that an attorney’s performance falls within a wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic.” Stevenson, 798 So.2d at 602(¶ 6). The defendant may overcome this presumption if they are able to demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Plummer v. State, 966 So.2d 186, 190(¶ 13) (Miss.Ct.App.2007) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2062). However, “[w]ith respect to the overall performance of the attorney, counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.” Jackson v. State, 815 So.2d 1196, 1200(¶ 8) (Miss. 2002) (internal quotation omitted). Similarly, we have held that “[t]he decision to make or not make a Batson challenge falls within trial counsel’s trial strategy and the wide latitude given him, to which appellate courts must defer.” Walker v. State, 823 So.2d 557, 565(¶ 23) (Miss.Ct.App.2002) (quoting Hall v. State, 735 So.2d 1124, 1128(¶ 12) (Miss.Ct.App.1999)).

¶ 12. While testifying at the evidentiary hearing, Walls explained that the decisions he made while representing Gray were strategic. His testimony is supported by the record, which shows that Walls filed a motion for discovery and made numerous objections to matters throughout the trial. Gray thought that Walls should have requested to sever the charges and to change venue. Walls countered that he did not think the charges would be severed given that the murder and aggravated assault for which Gray was charged occurred at exactly the same time and location. Walls also discussed the option with Gray and his family of moving to a different venue, but Walls did not think Gray would be unfairly prejudiced in Bolivar County by the pretrial publicity because only three jurors from the panel of thirty-nine said they had previously heard about the case when asked during voir dire. With regard to his alleged failure to raise a Batson challenge, Walls believed the jury, which consisted of seven African Americans and five Caucasians, was a fair racial and gender mix for that county. He actually did raise a Batson challenge, but it was after the State challenged one of his strikes. Finally, Walls asserted, and the record shows, that he did make timely objections to the issues which he felt had merit. Again, we agree with the circuit court and find that Walls’s performance fell well within the range of reasonable professional assistance. There was no wrongdoing or negligence on the part of Walls. This issue is without merit.

¶ 13. In reviewing the record, it is clear that Gray failed to meet the requirements set forth by Strickland regarding any of Walls’s alleged deficiencies. Accordingly, we affirm the circuit court’s ruling that Walls’s performance was more than adequate and find that Gray’s claim that he received ineffective assistance of counsel is wholly without merit.

¶ 14. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.

ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ., CONCUR.

      . The term 'prejudice” is defined as meaning "that the proceedings would have resulted in a different outcome but for the deficiency of counsel.” Booker v. State, 954 So.2d 448, 450—51 (¶ 10) (Miss.Ct.App.2006).


author: GRIFFIS, J., for the Court.

text:
    Jimmy Ray TURNER, Appellant v. James B. EVERETT, Appellee.
    No. 2006-CP-01593-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2008.
    Rehearing Denied May 19, 2009.
    Certiorari Denied July 30, 2009.
    Jimmy Ray Turner, appellant, pro se.
    James B. Everett, Decatur, appellee, pro se.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Jimmy Ray Turner filed a claim that alleged his attorney, James B. Everett, committed legal malpractice when Everett represented Turner in a murder trial. After numerous pro se motions were filed by Turner, a special judge dismissed Turner’s suit for the failure to effectuate service of process within 120 days after filing the complaint. Turner now appeals. We find that Turner failed to file a proper notice of appeal from a final judgment. Thus, this Court lacks jurisdiction to consider this appeal. Accordingly, Turner’s appeal is dismissed.

FACTS

¶ 2. In 1999, Turner was convicted of murdering his wife and was sentenced to serve a term of life in the custody of the Mississippi Department of Corrections. On November 24, 2003, Turner, acting pro se, filed a civil lawsuit that alleged that Everett had committed legal malpractice when Everett defended him during his murder trial. Turner simultaneously filed an application to proceed in forma pauper-is.

¶ 3. Turner claims to have forwarded a summons to the Smith County Circuit Clerk on April 28, 2004-five months after the filing of his complaint; however, he did not include the fee for service of process. On June 10, 2004, Turner received a letter from the Smith County Circuit Clerk that stated: “I have been informed by Judge Evans that we will not be allowed to file anything else on this case until court costs are paid in full.... If you would like to proceed you may send $95.00 court costs and [$]25.00 per summons to be served.”

¶ 4. The Honorable Robert Evans, circuit judge in this matter, denied Turner’s motion to proceed in forma pauperis on August 19, 2004, because the accounting records provided by the Mississippi State Penitentiary showed that Turner had funds available to him.

¶ 5. On October 18, 2004, Brenda Purser paid the $95 court filing fee on Turner’s behalf. However, no fee to issue a summons was paid. In fact, Turner did not send the $25 fee until July or August 2005. The exact date of the money order is illegible. That money order was returned to Turner because the circuit clerk was unable to find a summons. No summons or complaint was ever served on the defendant.

¶ 6. Turner filed a motion to recuse Judge Evans which was initially denied. Turner then filed a motion to show cause arguing that Judge Evans should recuse himself because he presided over Turner’s criminal case. Subsequently, Judge Evans issued an order recusing himself from this case on September 7, 2006. The Honorable Joseph C. Webster was appointed as special judge by the Mississippi Supreme Court.

¶ 7. Turner was given a hearing to show cause as to why he did not effectuate service within 120 days as required by Rule 4(h) of the Mississippi Rules of Civil Procedure. He failed to do so, and the circuit court, stating that ignorance of the rules does not amount to good cause, dismissed Turner’s legal malpractice action against Everett on July 23, 2007.

¶ 8. Turner filed his first notice of appeal in this case on September 7, 2006. In that notice of appeal, he sought relief from the circuit court’s order entered on August 8, 2006 — the order initially denying his motion for Judge Evans to recuse himself. On September 19, 2006, Turner filed a second notice of appeal. That notice did not specify which order or judgment was being appealed. It instead requested that Judge Evans remove his “prejudicial comments” contained in his September 7, 2006, order in which he recused himself from the case.

¶ 9. In his brief submitted to this Court, Turner argues the following issues: (1) the circuit clerk’s office abused its discretion by not issuing a summons in this case; (2) Judge Evans abused his discretion by not dismissing this complaint in 2004 before the statute of limitations had run; (3) the circuit clerk’s office abused its discretion by not filing any of his documenting motions in 2004 and 2005; (4) Judge Evans abused his discretion in not adjudicating him a pauper or allowing him to put a lien on his inmate account under Mississippi Code Annotated section 47-5-76 (Supp. 2006); (5) he was prejudiced when Judge Evans delayed ordering his recusal; and (6) the circuit court should have appointed counsel for him.

ANALYSIS

¶ 10. This appeal may be decided based on the resolution of the question of whether Turner filed a proper notice of appeal from a final judgment of the circuit court.

¶ 11. The supreme court has held that “pro se litigants must be held to substantially the same standards of litigation conduct as members of the bar.” Perry v. Andy, 858 So.2d 143, 146(¶ 13) (Miss.2003). Even considering the challenges that Turner faced by proceeding without an attorney, we find that this appeal is simply not properly before this Court.

¶ 12. Mississippi Code Annotated section 11-51-3 (Rev.2002) states that “[a]n appeal may be taken to the Supreme Court from anj final judgment of a circuit or chancery court in a civil case, not being a judgment by default, by any of the parties or legal representatives of such parties .... ” (Emphasis added). This section expressly limits the jurisdiction of this Court to the review of final judgments. Banks v. City Fin. Co., 825 So.2d 642, 644(¶ 9) (Miss.2002). Further, “[t]o be a final decree appealable under section 11-51-3, the decree must be final as to all parties and all issues.” Am. Empire Life Ins. Co. v. Skil-Craft Builders, Inc., 291 So.2d 735, 736 (Miss.1974) (citing Mid-South Paving Co. v. State Highway Comm’n, 197 Miss. 751, 766-67, 20 So.2d 834, 835 (1945)).

¶ 13. In Turner’s first notice of appeal, he stated that he was appealing Judge Evans’s order denying his motion for recu-sal. This notice of appeal was rendered moot because Judge Evans recused himself in an order entered the same day that the notice of appeal was filed.

¶ 14. In Turner’s second notice of appeal, he seems to have appealed Judge Evans’s order granting his motion for recusal. He did not ask for relief from that order; instead, he asked that certain language in the order be removed. Neither notice of appeal mentioned the special circuit judge’s final order of dismissal as both notices of appeal preceded the final order.

¶ 15. We find that Turner has failed to seek relief from a final judgment in this matter. Both orders from which Turner filed a notice of appeal each dealt with the recusal of Judge Evans and are in no way final as to the issues of this case. As such, this Court lacks jurisdiction to address Turner’s numerous assignments of error. Accordingly, this appeal is dismissed.

¶ 16. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . We note that Turner argued for relief from the final order in his brief on appeal, even though he did not mention this order in either of his notices of appeal. Mississippi Rule of Appellate Procedure 3(c) states in pertinent part, that: "The notice of appeal shall specify the party or parties taking the appeal and the party or parties against whom the appeal is taken, and shall designate as a whole or in part the judgment or order appealed from." (Emphasis added). Clearly, Turner failed to designate that he was appealing the final order in this case. It is true that this error may be overlooked in instances where "the basis of the appeal was abundantly clear” from the brief. See K.D.F. v. J.L.H., 933 So.2d 971, 974 n. 2 (Miss.2006). However, that cannot be the result when, as here, the notices of appeal were filed more than ten months prior to the entry of final judgment.


author: CARLTON, J., for the Court.

text:
    Joseph STEVENSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-01229-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2008.
    Rehearing Denied April 21, 2009.
    Certiorari Denied July 30, 2009.
    Martin A. Kilpatrick, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., IRVING, and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. A Washington County grand jury indicted Joseph Stevenson for the statutory rape of S.S. in violation of Mississippi Code Annotated section 97-3-65(1)(b) (Rev.2007). After a jury trial in the Washington County Circuit Court, Stevenson was convicted and sentenced to serve a life sentence in the custody of the Mississippi Department of Corrections (MDOC). Stevenson now appeals his conviction and sentence. Finding no reversible error in the trial court, we affirm.

FACTS

¶ 2. This case stems from several sexual encounters between S.S., a minor, and Stevenson in June 2004, when S.S. was eleven years old. Stevenson was a friend to S.S.’s family and visited frequently in their home. S.S. knew Stevenson because he and her mother, Leigh, were friends. Stevenson would sometimes help Leigh by driving S.S. and her younger brother back and forth to school.

¶ 3. S.S. testified at the trial. She stated that Stevenson would sometimes tell her that he loved her and he would marry her when she “got big.” S.S. stated that Stevenson had been in their home on at least four occasions when her mother was not home. On the first occasion, S.S. testified that she had allowed Stevenson to come into the home while her mother was away and her younger brother was asleep. S.S. testified that on that occasion, Stevenson showed her a “sex movie” that he had brought to the house with him. As the two watched the movie together, Stevenson assured S.S. that the woman in the movie “was not hurting.” Stevenson was only in the home a short time before leaving. S.S. estimated that he was there for three minutes. S.S. did not tell her mother that Stevenson had been in the house.

¶ 4. S.S. testified that Stevenson came to the home a second time, several days later, while her mother was away and her younger brother was asleep. S.S. let Stevenson come into the home. S.S. and Stevenson sat beside each other on the couch. S.S. testified that at that point, Stevenson “started feeling of me.” S.S. and Stevenson then had sex on the couch. S.S. testified that she was scared, but she had sex with Stevenson anyway because she loved him. Stevenson left before Leigh returned home from the store. S.S. did not tell her mother that Stevenson had been in the house.

¶ 5. Stevenson visited S.S. a third time while Leigh was across the street helping a sick neighbor. S.S. testified that on this night, Stevenson “rubbed his thing on my private part,” but the two did not have sex. S.S. explained that when she said “his thing” she was referring to Stevenson’s penis. Leigh did not return to the home until after Stevenson left. Again, S.S. did not tell her mother that Stevenson had been in the home while she was away.

¶ 6. S.S. testified that Stevenson came to the house a fourth time when her mother was away. Stevenson parked his car outside S.S.’s bedroom window. He knocked at her window, and S.S. allowed him to come in through the front door. Stevenson and S.S. had sex on the couch. Stevenson left before Leigh returned home.

¶ 7. Leigh testified that she first learned of the abuse after checking caller ID and noticing that Stevenson had called while she was away. When she questioned S.S. about the phone call, S.S. began to cry. She then told her mother that she and Stevenson had been having sex. Leigh testified that as a result of her daughter’s revelation, she called the Greenville Police Department. Leigh testified that she subsequently filed charges against Stevenson for the statutory rape of S.S. She did not take S.S. to see medical professionals at that time.

¶ 8. Leigh testified that a little over one week after finding out about Stevenson’s abuse of S.S., she walked into S.S.’s room and caught her talking to Stevenson on the phone. She overheard S.S. telling Stevenson that her mother did not leave the house anymore and that S.S. missed Stevenson and loved him. In response, Leigh “snapped and ... whipped her.” Leigh testified that she learned from S.S. that she had been with Stevenson earlier that night. Leigh looked between S.S.’s legs and noticed a “thick film” on her vagina. Leigh took S.S. to the Delta Regional Medical Center emergency room the next morning for an examination. S.S. admitted during her trial testimony that she had initially told her mother and grandmother that she had not had sex with Stevenson. S.S. explained that she was dishonest about the abuse initially because she did not want anybody to get in trouble.

¶ 9. The hospital contacted the Green-ville Police Department. Veronica Velasquez, a criminal investigator with the Greenville Police Department, met S.S. and her mother at the hospital. Velasquez testified that S.S. told her that she and her mother’s friend had performed oral sex on each other and “messed around.” Velasquez testified that S.S. told her the assault had taken place several weeks before. Velasquez contacted the Department of Human Services (DHS), which sent a social worker to meet with S.S. as well. Velasquez directed the hospital to conduct a rape kit on S.S. The rape kit was completed and sent to Reliagene Technologies for testing.

¶ 10. Linda Buck, the nurse who treated S.S. at the hospital, testified that she gathered the evidence for the rape kit. Buck testified that when she asked S.S., for purposes of completing the rape kit, whether there had been any penetration of her vagina, S.S. said there had been “attempted” penetration. When asked whether there had been any penetration of the mouth, S.S. again replied, “attempted.” S.S. told Buck that she last had sexual contact with Stevenson the day before being taken to the hospital. Dr. William Braken, the emergency room physician, testified that the tests performed on S.S. in the emergency room revealed non-motile sperm within S.S.’s vaginal vault. Dr. Braken testified that finding sperm within the vaginal vault indicated that there had been penetration of the vagina.

¶ 11. Huma Nasir, a forensic scientist and DNA analyst with Reliagene Technologies, testified regarding her analysis of the evidence obtained from the rape kit. She testified that she found seminal fluid on the swabs taken from S.S.’s vagina and vulva. One of the swabs of S.S.’s vulva revealed two sperm cells. Nasir was unable to obtain a DNA sample from the sperm cells because of the small number of sperm found. Nasir testified that she would need approximately fifteen or twenty sperm cells to extract a usable DNA sample.

¶ 12. At the close of the State’s case, Stevenson moved for a directed verdict of acquittal; his motion was denied. Stevenson then testified on his own behalf. He testified that he and Leigh had been involved in a sexual relationship for approximately two years. He testified that Leigh wanted him to move in with her, but he refused. Stevenson testified that he thought S.S. lied when she testified that he had abused her because Leigh would beat her if she told the truth. After his testimony, Stevenson renewed his motion for a directed verdict, and it was denied. The jury found Stevenson guilty, and he was sentenced to life imprisonment. Stevenson filed a motion for new trial on June 6, 2007, which was denied by the trial judge.

¶ 13. Stevenson raises one issue for our consideration on appeal. He argues that the trial court committed reversible error when it admitted evidence of seminal fluid found inside the victim even though it had not been identified through DNA testing as Stevenson’s. Within that argument, Stevenson implies that the jury’s verdict was against the overwhelming weight of the evidence. After consideration of both issues, we find no error and affirm Stevenson’s conviction and sentence.

DISCUSSION

I. Whether the chancellor erred in admitting evidence of seminal fluid and sperm found inside the victim’s body.

¶ 14. Stevenson argues that the trial judge erred in admitting the evidence that seminal fluid and sperm were found inside S.S.’s body because that evidence was not connected to Stevenson through a DNA comparison. Stevenson claims the prejudicial effect of the evidence outweighed its probative value and should have been excluded.

¶ 15. We review challenges to the admission or exclusion of evidence under an abuse of discretion standard, and we may reverse only when the trial judge has abused his discretion. Stubbs v. State, 878 So.2d 130, 134(¶ 7) (Miss.Ct.App.2004). “However, the discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence.” Id.

¶ 16. Rule 401 of the Mississippi Rules of Evidence defines relevant evidence as follows:

“Relevant Evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Stevenson admits that the evidence was relevant; however, he argues that under Rule 403 of the Mississippi Rules of Evidence, the evidence should have been excluded. Rule 403 allows for the exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time, stating:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Stevenson argues that the probative value of the seminal-fluid evidence and testimony was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and was misleading to the jury.

¶ 17. Our supreme court held in Cox v. State, 849 So.2d 1257, 1269(¶ 39) (Miss. 2003), that the trial judge is not required to exclude evidence when the probative value is outweighed by the prejudicial effect of such evidence. The supreme court stated:

[E]ven when the trial court determines under Rule 403 that prejudice substantially outweighs the probative value of particular evidence, it remains within the court’s discretion to determine whether to exclude the evidence, since Rule 403 does not mandate such an exclusion but rather states that the evidence may be excluded .... Our task as an appellate court reviewing a Rule 403 determination is not to engage anew in the Rule 403 balancing process. Rather, [the appellate court] must simply determine whether the trial court abused its discretion in weighing the factors and admitting or excluding the evidence.

Id. (citing Baldwin v. State, 784 So.2d 148, 156(¶ 27) (Miss.2001)).

¶ 18. Stevenson relies on Walker v. State, 878 So.2d 913, 918(¶ 23) (Miss.2004), for the proposition that his conviction should be reversed. In Walker, the supreme court reversed Freddie Walker’s conviction for statutory rape because the trial court admitted a towel which had been soiled with semen. Id. The supreme court found that the soiled towel had not been properly authenticated and could not be positively connected to Walker, despite the victim’s testimony that she saw him clean himself with the towel and then hide the towel in her room. Id. at 915(¶ 15). The supreme court found that the admission of the towel failed the unfair prejudice standard set forth in Rule 403, stating: “With no direct link to the accused, a soiled towel would tend to mislead, confuse, and incite prejudice in the jury, especially in a capital rape trial involving a 13-year-old victim.” Id. at 916(¶ 15).

¶ 19. In Walker, no testing was conducted on the soiled towel, except tests to confirm that there was in fact semen on the towel. Walker, 878 So.2d at 917(¶ 19). With no attempt to scientifically link the semen on the towel to Walker, the prosecution offered the towel into evidence as being stained with Walker’s semen. Id. at 916(¶ 16). Furthermore, the semen was linked to an assault that occurred more than two years earlier and which was not included in the indictment. Id. at 915(¶ 8). The case at bar is clearly distinguishable.

¶ 20. In Stevenson’s case, forensic testing was conducted. However, no DNA sample could be obtained from the sample taken from S.S.’s body. Furthermore, the semen in Stevenson’s case was found inside S.S.’s body the day after the two had allegedly last had sex. The State connected the semen found inside S.S. with Stevenson through the victim’s testimony. Furthermore, the State did not present the semen evidence to the court as being Stevenson’s semen. The State presented the semen evidence as proof that S.S. had engaged in sexual intercourse before being taken to the hospital.

¶ 21. The semen evidence was relevant and more probative than prejudicial, and it made the State’s theory of the case more probable. In Baldwin, the supreme court upheld Clint Baldwin’s capital murder conviction despite his argument, among others, that the trial court improperly admitted DNA evidence which excluded Baldwin, but implicated his brother, in the rape and murder of the victim. Baldwin, 784 So.2d at 156(¶ 25). Baldwin argued that the evidence was more prejudicial than probative and that the trial court erred in allowing it to be presented. Id. The supreme court held that the trial judge did not abuse his discretion in allowing the evidence because the evidence made the State’s theory of the case more probable and was consistent with the witnesses’ testimony that Baldwin’s brother raped the victim as Baldwin watched. Id. at (¶ 28).

¶ 22. Likewise, the evidence offered against Stevenson made the State’s case more probable than it would have been without the evidence. The probative value of the evidence outweighed any prejudice to Stevenson. The semen evidence corroborated S.S.’s testimony that she had sex with Stevenson the day before being taken to the hospital. That same testimony of the victim connected the semen recovered to Stevenson. We find that the trial judge did not abuse his discretion in allowing the State to present the semen evidence. This issue is without merit.

II. Whether the jury verdict was against the overwhelming weight of the evidence.

¶ 23. Though he did not formally brief the issue, Stevenson implied throughout his brief that the jury’s verdict was against the overwhelming weight of the evidence. After trial, Stevenson filed a motion for a new trial, arguing that the verdict was against the overwhelming weight of the evidence. That motion was denied.

¶ 24. Our standard of review for arguments that a jury verdict was against the overwhelming weight of the evidence is as follows:

[T]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction unconscionable injustice. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Price v. State, 898 So.2d 641, 652(¶ 26) (Miss.2005) (internal quotations and citations omitted).

¶ 25. Stevenson focuses most of his argument on the fact that S.S. made inconsistent statements to her family, to the investigators, to her social worker, and to hospital staff. He also argues that S.S.’s claims were unsubstantiated and uncorroborated, because the semen found inside S.S.’s vaginal vault could not be positively identified through scientific testing as being his.

¶ 26. In Price, Price argued that his conviction should be reversed because of inconsistencies in the victim’s statements to family members and investigators. Price, 898 So.2d at 651(¶ 23). The victim had, during two separate interviews with her DHS social worker, insisted that Price had not touched her in any inappropriate way. Id. at 646(¶ 6). Price further argued that the State had presented no corroborating medical or physical evidence to support the statutory rape charges against him. Id. The supreme court held that “the unsubstantiated and uncorroborated testimony of a victim is sufficient to support a guilty verdict if that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with conduct of one who has been victimized by a sex crime.” Id. at 651(¶ 23) (citations omitted). The supreme court further held that any questions regarding the credibility of the victim’s testimony were to be resolved by the jury. Id. at 652(¶25) (citing Schuck v. State, 865 So.2d 1111, 1124(¶37) (Miss. 2003)).

¶ 27. The supreme court upheld a conviction in a similar case in Winston v. State, 754 So.2d 1154, 1155(¶ 1) (Miss. 1999). In Winston, the defendant was convicted of capital rape under Mississippi Code Annotated section 97-3-65(1) (1994). Id. The victim, a thirteen-year-old girl, was examined by a doctor following the rape; the doctor determined that she had engaged in intercourse hours before the examination. Id. at (¶ 3). However, the rape kit, which was completed, revealed no evidence to identify Winston. Id. Winston argued on appeal that the evidence did not support his conviction. Id. at 1156(¶ 5). He argued that the victim’s statements were contradicted by her initial denial that Winston had assaulted her, as well as by another witness’s testimony regarding the timing of the incident. Id. at (¶¶ 6-7). As in Price, the supreme court upheld the conviction and found that “the credibility of the witnesses’ testimony and resolution of conflicting testimony was for the jury to determine.” Id. at (¶ 7) (citing Collier v. State, 711 So.2d 458, 462(¶ 18) (Miss.1998)).

¶28. Like the victim in Winston, S.S. did make inconsistent statements; however, she explained in her testimony that she initially lied because she was scared and did not want anyone to get into trouble. Despite her inconsistent statements, S.S. consistently named Stevenson as the person with whom she had sex. See Goss v. State, 413 So.2d 1033, 1035-36 (Miss.1982).

¶ 29. Taking as true the evidence which supports the verdict, including the statements of S.S., her mother, the DHS social worker, the doctor who examined S.S., and the nurse who completed the rape kit, we find that the jury’s finding that Stevenson was guilty of the statutory rape of S.S. is not “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction ‘unconscionable injustice.’ ” Price, 898 So.2d at 652(¶ 26). This issue is without merit.

¶ 30. For the reasons stated above, we affirm the judgment of the trial court.

¶ 31. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. KING, C.J., NOT PARTICIPATING.

      . To protect the identity of the minor victim, we will use initials, rather than her name, throughout this opinion,

      . We have also substituted a fictitious name for S.S.’s mother to further protect the identity of the minor victim.

      . Leigh testified that she and Stevenson were only friends; Stevenson testified that they had been sexually involved for more than two years.


author: KING, C.J., for the Court.

text:
    Bobby L. TRAVIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-00236-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2008.
    Rehearing Denied May 12, 2009.
    Certiorari Denied July 30, 2009.

      Virginia Lynn Watkins, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appel-lee.
    Before KING, C.J., IRVING and CHANDLER, JJ.
   KING, C.J., for the Court.

¶ 1. Bobby L. Travis was convicted of burglary of the home of a Jackson resident and sentenced to a term of twenty-five years in the custody of the Mississippi Department of Corrections with fifteen years to serve, ten years suspended, and five years of supervised probation.

¶ 2. He raises two issues on appeal: (1) that the trial court erred in denying his motion to dismiss for failure to provide a speedy trial and (2) that the trial court erred in denying his motion for a new trial as the weight of the evidence was insufficient to sustain the jury’s verdict.

¶ 3. Finding no error in the proceedings below, we affirm.

FACTS

¶ 4. Boris Hines, the manager of the Green Hill Apartments at 355 Green Hill Place in Jackson, was brutally attacked in his apartment following a home invasion on May 6, 2003. His arms and legs were bound, and a plastic bag was placed over his head by two men who pushed their way into the apartment when his roommate, Quala Watson, opened the door. Watson was lured to the door by a telephone call from an unknown female who told Hines that someone was trying to break into Watson’s car. The men wore ski masks and wielded guns. Hines was thrown on the bed by the men, who stated that he “owed the boss” $5,000. Hines denied owing anyone money. Hines said that he was struck and was beaten by the men with their fists and guns. Hines said that as he lay helpless and in fear of his life, he heard the men ransacking his apartment. The men took him to the living room, sat him down, wrapped him in a sheet or a blanket, and put a laundry basket over his head. They led him outside and stuffed him in the trunk of a car and drove away. They rode for less than an hour and then stopped. Hines said he could hear the two men talking while they were riding around, but he was unable to recognize the voices or tell what they were saying. When the car stopped they took Hines out of the trunk. One of the men again told Hines that he owed the boss money and said, “we’re going to show you how we do it in New Orleans.” At that point a gun was fired. Hines testified that he was not hit by the gunshot. Hines testified he was terrified because he was still bound, completely covered, and was having difficulty breathing. The men then placed him in another vehicle along with Watson. They rode for a short time and then the men left Hines alone in a car on Redwood Avenue in Jackson. Having waited long enough to insure that the men were gone, Hines broke free and went to a nearby home and called the police. The police arrived and took him back to his apartment; Watson was there. Hines found that the apartment was in shambles and that his computer, DVD/VCR, thirty-four videotapes, and some crystal had been stolen. The robbers had taken his keys, which included the keys to all of the apartments in the complex, and they had taken Watson’s keys. Hines described his injuries as broken teeth and a “busted” lip from being hit, and a cut in the back of his head. Hines was never able to identify the assailants. They wore ski masks, and they covered his head during the entire ordeal. He did note that one was tall and one was short.

¶ 5. Hines testified that, as the apartment manager, he was having problems with Travis regarding his payment of rent. Travis and his girlfriend moved into the apartment complex about two to three months before the incident. They paid the deposit and moved into the apartment. Hines told Travis that he would pro rate his rent. When it came time to pay the rent, Hines said that Travis would not pay it. Hines said that he started leaving notes asking Travis to see him. After Travis ignored the notes, Hines decided rather than lose his job as the apartment manager it was necessary to evict Travis. Hines testified that he gave Travis a final notice, and approximately the first of the next week, the home invasion happened.

¶ 6. Jackson Police Officer Letisha Gibbs was dispatched to Hines’s apartment as a result of Hines’s call. As she entered the complex, she saw an oncoming red extended cab pickup truck slow its speed and then shut off its headlights. The driver slumped down into the seat so as not to be seen. Deeming this suspicious, the officer ordered the driver to put his hands out of the window. As she approached the car, she saw a handgun on the seat beside the driver. The driver was identified as seventeen-year-old Earltavious Markee Jones. Jones was dressed in a black jumpsuit; the officer found a blue ski mask and a cell phone in Jones’s pockets. After ordering Jones out of the truck, Officer Gibbs discovered that he had been sitting on top of a second handgun. In securing the weapon, the officer found five bullets and one spent cartridge. The officer then noticed a pillowcase filled with VCR tapes on the floorboard of the truck. She also found a computer hard drive. Another officer arrived on the scene and advised Officer Gibbs that the items found in the truck had been reported stolen by Hines. Back at his apartment, Hines identified the recovered items. Officer Gibbs described Hines as shaky. She said that he looked frightened, and he was so upset “he really didn’t know how to talk.” She described him as bloody all over, with a “busted” lip, a cut on his back, and bruises on his wrists and back.

¶ 7. Jones, Travis’s cousin, was indicted along with Travis for burglary of a dwelling and kidnaping in connection with the incident. Jones lived on Redwood Avenue in Jackson with his aunt. Jones pled guilty to the charge of burglary of a dwelling and was awaiting sentencing at the time of Travis’s trial. For his guilty plea to the house burglary charge and his testimony against Travis, the kidnaping charge against Jones was dropped.

¶ 8. Jones testified that on the night of the incident he, Travis, and an individual named David, whom he did not know, were going to spend the night with Travis at his apartment, which was in the Green Hill apartments-next door to the victim, Hines. The three left Travis’s sister’s house to go to Travis’s apartment in a red Nissan truck that Travis drove. He said when Travis got to his apartment, he found that the electricity was off. Travis told Jones he would get some items from his apartment and go back to his sister’s house. According to Jones, Travis got out of the truck, pulled a .38 caliber pistol from under the seat, and, along with David, went to the apartment that was later identified as that of Hines. Jones stated when someone came to the door, Travis and David ran in with the weapon and stayed inside the apartment for about fifteen minutes.

¶ 9. Jones stated that he remained in the truck. Jones said that Travis and David were dressed in all black clothing and were escorting a man and.a woman out of the apartment. He said the hands of the man and woman were tied, and there was something across their eyes. Jones said he did not see Travis and David put a mask on before entering the apartment, nor did he see them wearing masks when they came out with the couple. According to Jones, the man was put on the back seat of the truck, and they attempted to put the female in the back of the pickup with Jones, so he got out. Jones said he was unaware that they were going to kidnap people that night, and it was only when Travis and David brought the two people out that he realized what was going on. Jones said after placing them in the truck, Travis and David took off leaving him standing on the side of the apartment building.

¶ 10. After about an hour, Jones said Travis, David, and the female came back. The female was still bound, and her eyes were still covered. Jones heard Travis tell the female that she would not be hurt if she cooperated. He said Travis told her that all she had to do was to call Hines’s father and tell him that Hines owed Travis $5,000. Jones said they stayed in the apartment for about ten minutes, while he remained outside. According to Jones, Travis and David returned to the truck with four laundry bags “full of stuff’ that were put on the back of the truck. Jones said that Travis told him the stuff had come out of Travis’s apartment. The female did not come back with them. Travis retrieved an automobile from the other side of the building. He then told David to drive the pickup truck back to his sister’s house. However, David refused because he did not know the owner of the vehicle. At that point, Jones volunteered to drive the truck back to Travis’s sister’s house, even though he did not have a driver’s license. Travis and David left in the automobile. Jones smoked a cigarette, then got in the truck, and left about five minutes later. While leaving, he saw a police officer approaching. Jones was approached by Officer Gibbs who found the two guns and the laundry bags full of items in the truck and placed him under arrest. Jones was taken to the police station where he gave a statement to Detective Keith Denson. Detective Denson testified that he responded to a home invasion call, meaning that there had been a burglary as well as a possible armed robbery and assault. Upon arrival, he noticed a red Nissan pickup truck. Denson testified that Hines’s apartment was in disarray with items turned over and scattered throughout the apartment. The detective said that Watson was at the apartment when he arrived, but Hines had not yet arrived. After talking to Jones, Detective Denson said the police had two possible suspects: Travis and a man known only as David. Travis, who was thirty-three years old at the time of the crime, turned himself in on charges connected with the case on August 13, 2003. The detective said that police never determined David’s identity. Detective Denson said that policemen from another precinct transported Hines back to his apartment shortly after Denson got there. They picked Hines up from a location on Redwood Avenue where he said he had escaped from an automobile. The detective said that when the police went to the site they found an abandoned automobile in front of an abandoned house. He said that inside the car were a sheet, an electrical cord, and a bloody T-shirt, consistent with someone being assaulted. The detective also said that there was a Ford Festiva automobile parked on the street directly in front of the apartment building which belonged to Travis. Inside the vehicle in plain view was a dark colored ski mask. Detective Denson said he received a search warrant for the car and inside were found a set of keys to all of the apartments in the complex, a set of keys that belonged to Watson, and a set of crystal ware, all items that had been reported stolen.

¶ 11. Travis did not testify at trial and called only two witnesses. He recalled Detective Denson who testified that fingerprints lifted from the Nissan pickup matched neither Travis nor Jones. Travis called Jackson Police Officer Charles Taylor who testified that he processed the crime scene at 335 Green Hill Place. He said that he collected evidence from a red 1998 Nissan Frontier pickup that included a Dell computer keyboard, two computer speakers, a computer mouse, a power cord, an IBM computer and monitor, a blue knit mask, thirty-four videotapes, and a pillowcase. He also collected a palm print from the vehicle that did not match Travis or Jones. He described Hines’s apartment as appearing “ransacked” with dresser drawers pulled out and clothes on the floor. The officer testified that he could see empty spaces where a VCR and a computer had been. Officer Taylor also processed the Redwood Avenue location where a car was abandoned. He said the abandoned car was a 1990 gray or silver Buick Century and he did not take any fingerprints. Officer Taylor said that fingerprints were not taken from the apartment.

¶ 12. The jury returned a not guilty verdict on the kidnaping charge against Travis and a guilty verdict on the burglary of a dwelling charge. The trial court denied posttrial motions, and this appeal ensued.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DENYING TRAVIS’S MOTION TO DISMISS FOR FAILURE TO GRANT A SPEEDY TRIAL.

¶ 13. In his first argument, Travis alleges that the trial court erred in denying his claims of violation of his state and federal constitutional rights to a speedy trial. He notes that he filed a pro se “Motion for Dismissal” on January 13, 2005, in which he pointed out that he was arrested on August 13, 2003, and twenty-one months later, he still had not been tried. Citing Smith v. State, 550 So.2d 406, 407 (Miss.1989), the motion said that any delay of eight months from arrest to trial is presumptively prejudicial and asked the trial court to dismiss the charges against Travis.

¶ 14. The motion was not brought on for hearing until his trial date, August 9, 2006. The defense counsel called Travis to testify about the delay. Travis confirmed the date of his arrest, August 13, 2003; the date of his indictment, June 8, 2004; and his arraignment date of August 2, 2004. He said that his job prior to his arrest was as an in-state and out-of-state truck driver. Because of the charges, he was unable to leave the state to make runs, thus affecting his ability to make a living. He also testified that two witnesses who could provide him with an alibi had died during the pendency of the charges against him.

¶ 15. Ruling from the bench, the trial judge denied the motion. He determined that Travis had failed to pursue the motion to a decision; therefore, it was abandoned pursuant to Rule 2.04 of the Uniform Rules of Circuit and County Court. The judge said that an alternative reason for the denial was that Travis had a hearing on January 25, 2005, before another judge and that he was released on bond the next day.

¶ 16. The trial judge then proceeded to conduct a Barker analysis to determine whether Travis’s right to a speedy trial had been violated. Barker v. Wingo, 407 U.S. 514, 529-34, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Barker factors, which must be balanced in light of the totality of the circumstances when determining whether there was a violation of the speedy trial right, are: (1) the length of the delay, (2) reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant resulting from the delay. Id. at 530, 92 S.Ct. 2182.

¶ 17. The court used the date of Travis’s arraignment, August 2, 2004, as the beginning date for its analysis. The court found that the time from August 2, 2004, to November 16, 2004, the date originally set for trial, should not count against the State because the trial date was set during the arraignment without objection from Travis’s then-retained counsel. The court said that on September 9, 2004, after Travis had the Hinds County Public Defender’s Office appointed as his counsel, the public defender moved for the case to be reset for May 19, 2005. Considering this, the trial judge found that the time between September 9, 2004, until May 19, 2005, should not be counted against the State as the delay was a result of a request' from the defense. The court said that the next event was Travis’s filing of his pro se motion for dismissal on January 18, 2005. The trial judge noted his previous ruling that the motion was abandoned pursuant to URCCC 2.04, but he found that even if the motion had been heard, it would have been denied as the entire delay was charged against the defendant. The trial court noted that Travis was released on bail on January 26, 2005, the day after his motion to set/reduce bond was heard.

¶ 18. The next event referenced by the trial judge was November 22, 2005, when the case was reset for trial to begin on February 22, 2006. The court took judicial notice of its docket during that time frame and stated that the reason for the delay was the court’s crowded docket. The judge said that the trial of other cases prohibited Travis from going to trial on February 22 and that on February 22, 2006, he was trying one of many “so-called gang related cases” involving multiple defendants. The judge held that the reason for the delay for the period from February 22, 2006, to the date of the actual trial, August 9, 2006, was caused by the crowded court docket.

¶ 19. The trial court found that Travis had not asserted his right to a speedy trial and that fact mitigated against him. “While it is true that a defendant does not have the responsibility to bring himself to trial, the appellate courts have consistently ruled that the lack of a request or demand or assertion of the right to a speedy trial is a factor to be weighted against the defendant or at least it mitigates against the delay that might otherwise be charged to the State,” the judge said.

¶ 20. Considering the fourth factor of the Barker analysis — prejudice to a defendant due to the delay — the trial court found that two things were presented by Travis as prejudice. The first was Travis’s testimony that he was unable to drive' a truck out of the state which adversely affected his ability to earn a living as a truck driver. The trial judge said that he had reviewed the order setting conditional bond, and there was no such condition in the bond order that provided that the defendant could not leave the state. Therefore, he found no prejudice as to this matter. The second claimed prejudice was that two alibi witnesses, Odell Harris and a Mr. Booker both of the New Orleans area, had died prior to trial. The judge said that his review of the court file showed that no subpoenas were ever issued for the two men, nor had their names been provided to the State prior to trial. The judge said that subpoenas were not the only way to have witnesses appear at trial. However, the judge stated that he could only find that this was done to gain a tactical advantage. In that event, the judge found that even if the witnesses were at the trial that day, they would not be allowed to testify under the rules of reciprocal discovery. Thus, the trial court ruled there was no prejudice to Travis on this issue.

¶ 21. Allegations of speedy trial violations are examined and determined on a case-by-case basis looking at the facts of each case. Sharp v. State, 786 So.2d 372, 377(¶ 4) (Miss.2001). A criminal defendant’s constitutional right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution. This right attaches, and the time begins to run, upon the defendant’s arrest. Black v. State, 724 So.2d 996, 1001(¶ 14) (Miss.Ct.App.1998). The Sixth Amendment to the United States Constitution entitled Travis to a “speedy and public trial.” U.S. Const. amend. VI. The United States Supreme Court has observed that “the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage.” Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The constitutional right is applied to the states through the Fourteenth Amendment. Id. at 222-23, 87 S.Ct. 988. The Supreme Court has observed that the speedy trial right serves a threefold purpose: (1) to protect the accused against oppressive pretrial imprisonment, (2) to minimize the accused’s anxiety and public suspicion due to the unresolved criminal charge, and (3) to limit the possibility of a long delay that will impair the defendant’s ability to defend himself. United States v. Loud Hawk, 474 U.S. 302, 312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (citing United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)). Thus, the protection given by the right to a speedy trial is against arbitrary and oppressive delays in prosecution.

¶ 22. The length of the delay is a triggering mechanism in that until there is some delay which is presumptively prejudicial, there is no necessity to inquire about the other Barker factors. Murray v. State, 967 So.2d 1222, 1230(¶ 23) (Miss. 2007). The supreme court has held that any delay of eight months or longer is presumptively prejudicial. Id. We find that the time between the arrest of Travis on August 13, 2003, and his trial on August 9, 2006, was a period of nearly thirty-six months and, thus, was presumptively prejudicial. When the constitutional right attaches, we are required to apply the balancing test set out in Barker to determine if the speedy trial right has been denied.

¶ 23. The Mississippi Constitution also guarantees a criminal defendant the right to a speedy trial which attaches at the time of arrest. Miss. Const. Art. 3, § 26. The State is statutorily required to bring a defendant to trial within 270 days of arraignment “[u]nless good cause [can] be shown, and a continuance duly granted by the court.” Miss.Code Ann. § 99-17-1 (Rev.2007). Unlike the constitutional right, which attaches at arrest, the state statutory right attaches at arraignment. Id. The time between the arraignment of Travis on August 2, 2004, and his trial on August 9, 2006, was a period of twenty-four months and, thus, was presumptively prejudicial. Since each requires an application of the Barker factors, we will examine the state and federal rights together.

¶ 24. The State bears the burden of proving good cause for the speedy trial delay and, thus, bears the risk of non-persuasion. Flores v. State, 574 So.2d 1314, 1318 (Miss.1990). Good cause is a factual finding that is not different from any other finding of fact; thus, an appellate court should not disturb the finding of fact when it is based upon substantial evidence identified from the record. McGhee v. State, 657 So.2d 799, 803 (Miss.1995).

¶ 25. The trial court did not perform an analysis for a violation of Travis’s constitutional right to a speedy trial. We reach this conclusion because the trial judge began his analysis with the date of the arraignment as required under the state statute and not by using the date of arrest as required by the federal and state constitutions. Thus, the court did not review or determine the reasons for the delay in bringing Travis to trial from the date of his arrest, August 13, 2003, to the date of arraignment, August 2, 2004, a period of almost one year. During the pretrial hearing on the motion for speedy trial, neither Travis’s counsel nor the prosecutor directly addressed the constitutional speedy trial rights. Travis’s counsel brought to the court’s attention the fact that the incident happened in May 2003 and that Travis turned himself in in August 2003. Then “for whatever reason” Travis was not brought before a grand jury until the March 2004 term — resulting in an indictment filed on June 8, 2004. In the appellant’s brief and the reply brief, the attorney for Travis notes that this time was not allocated by the trial court and argues that under the authority of Jenkins v. State, 607 So.2d 1137, 1139 (Miss.1992), the time should be counted against the State. The State does not address this point in its appellee’s brief.

¶ 26. We must agree with Travis. The responsibility to bring a defendant to trial is upon the State, since a defendant has no duty to bring himself to trial. Id. Where the record is silent regarding the reason for the delay, then the time is counted against the State because the State bears the risk of non-persuasion on the good cause issue. Vickery v. State, 535 So.2d 1371, 1375 (Miss.1988). Since the State bears the burden of proving good cause for the nearly one-year delay and the record is silent as to the cause for the delay, we find that this time weighs against the State. Because the time period is more than eight months in length, we find that it is presumptively prejudicial. However, our analysis does not stop here. Once there is a finding that the delay is presumptively prejudicial, the burden shifts to the State to produce evidence justifying the delay and to persuade the trial court of the legitimacy of these reasons. DeLoach v. State, 722 So.2d 512, 517(¶ 17) (Miss.1998). We must look at the whole period between Travis’s arrest and his trial and then “engage in a difficult and sensitive balancing process.” Barker, 407 U.S. at 533, 92 S.Ct. 2182.

¶ 27. The accused’s assertion of or failure to assert the right to a speedy trial is one of the factors to be considered in an inquiry of whether the speedy trial right was denied. Although a defendant does not have an obligation to bring himself to trial, he will earn points on his side of the ledger when he has made a demand for a speedy trial. Stevens v. State, 808 So.2d 908, 917(¶ 22) (Miss.2000). Travis claims that he asserted his right to a speedy trial by filing the motion for dismissal on January 13, 2005. In Summers v. State, 914 So.2d 245, 253(¶ 20) (Miss.Ct.App.2005), this Court held that a demand for dismissal for violation of the right to a speedy trial is not the same as a demand for a speedy trial. In Perry v. State, 637 So.2d 871, 875 (Miss.1994), the court said that the motion to dismiss seeks discharge of the defendant, not a speedy trial for him. We are not allowed, therefore, to count in Travis’s favor his pretrial motion seeking dismissal of the charges. We find that Travis did not request a speedy trial, but instead he asked that the charges be dismissed against him because of an alleged lack of speedy trial. Thus, this factor weighs in favor of the State.

¶ 28. When we examine the time from arraignment to trial in this case, we find that the trial court’s analysis and findings regarding the other reasons for delay are supported by substantial evidence. Beginning with the date of Travis’s arraignment, August 2, 2004, until the date originally set for trial November 16, 2004, the trial court found that the time should count against Travis since his counsel had not objected to the trial date. Likewise, we agree that the time from September 9, 2004, until May 19, 2005, should be counted against Travis since his defense counsel requested the delay. The rest of the time until the actual date of the trial the trial court found to be due to an overcrowded docket and weighed this slightly against the State. The trial court noted for the record his and the other trial judges’ crowded trial calendars. We have held that delays due to crowded dockets are not weighed heavily against the State. Skaggs v. State, 676 So.2d 897, 901 (Miss.1996). While lamentable, it is nonetheless true that courts in the more populated areas of our state maintain a criminal docket which is so large that delay in bringing defendants to trial is a rueful byproduct.

¶ 29. The final Barker factor is prejudice to the defendant. On this point, Travis makes two claims of prejudice. The first is that he was unable to make a living when he was released on bond because he was not allowed by the bond to drive out of state. The trial court examined the bond and found no provision which kept Travis from pursuing his occupation as a truck driver. The bond was made a part of the record and is substantial evidence to support the trial judge’s decision. Travis’s second claim of prejudice is that two alibi witnesses died prior to trial. The alleged witnesses were Harris and Booker, both of the New Orleans area, who both died during the first part of 2006. The trial court noted that the record contained no subpoena for these witnesses although the judge said subpoenas would not be required for witnesses to attend. The court also noted that the names of the witnesses were never provided to the prosecution “in spite of the fact that, according to the defendant, they showed up several times when the case was set for trial.” The court found that the defendant’s failure to supply the names was done to gain a tactical advantage and, thus, was a violation of reciprocal discovery rules. “[E]ven if the witnesses were here to testify today, they would not be allowed to testify under the rules of reciprocal discovery,” the trial judge said.

¶ 30. Rule 9.04 of the Uniform Rules of Circuit and County Court imposes upon a defendant requesting discovery a reciprocal duty to disclose to the prosecution the names and addresses of any trial witness. URCCC 9.04(C)(1). The rule allows a trial judge who finds that witnesses have not been disclosed to take certain actions including to “enter such other order as it deems just under the circumstances.” URCCC 9.04(1). Exclusion of evidence for a discovery violation is an extreme sanction and is only appropriate where the defendant’s discovery violation was willful and motivated by a desire to obtain a tactical advantage. Ross v. State, 954 So.2d 968, 1000(¶ 65) (Miss.2007). The first time that either the State or the trial court heard of the witnesses, Harris and Booker, was on the day of the trial. There were two motions for discovery, one filed by Travis’s retained counsel on June 30, 2004, and the other by the public defender’s office on September 9, 2004. Therefore, Travis incurred an obligation to provide reciprocal discovery.

¶ 31. We find there was substantial evidence to support the trial court’s finding that Travis’s failure was a violation of reciprocal discovery, and these witnesses should have been excluded.

¶ 32. When we apply the Barker test and consider all of the balancing factors, we find that the nearly one-year delay is charged to the State, while the remainder of time until trial is either weighed against the defendant or not weighed heavily against the State. We find no error in the trial court’s determination that Travis did not suffer undue prejudice. Based upon these facts, we find that there was substantial evidence to support the trial court’s decision that Travis’s constitutional and statutory speedy trial rights were not violated. Thus, we find no merit in this alleged error.

II. WHETHER THE TRIAL COURT ERRED IN DENYING TRAVIS’S MOTION FOR A NEW TRIAL AND MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT.

A. New Trial

¶ 33. Travis argues that his conviction hinges on tenuous evidence and virtually no direct evidence. He claims that although Hines explicitly described his kidnaping and the burglary of his home, he was unable to identify Travis as the one who was involved. Travis also minimizes the testimony of his young cousin, Jones, pointing to inconsistencies in his testimony.

¶ 34. Travis entreats us to sit as the thirteenth juror and find that allowing Travis’s conviction to stand would sanction an unconscionable injustice. Dilworth v. State, 909 So.2d 731, 737-38 (¶¶ 21-23) (Miss.2005).

¶ 35. A motion for a new trial challenges the weight of the evidence, and a reversal is warranted only if the trial court abused its discretion in denying the motion for a new trial. Id. at 737(¶ 20). It is only in the exceptional case where the evidence preponderates heavily against the verdict that the trial court should invade the province of the jury and grant a new trial. Hodgin v. State, 964 So.2d 492, 497(¶22) (Miss.2007). The verdict must be “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Dilworth, 909 So.2d at 737(¶ 21) (citation omitted).

¶ 36. It is true that while Hines’s testimony detailed his brutal kidnaping and the burglary of his apartment, he was unable to identify his assailants. However, Hines’s testimony regarding Travis’s motive for the crime was clearly set out. Hines testified that as the apartment manager he had been having trouble with Travis refusing to pay his rent. Travis ignored numerous notes from Hines to pay. Hines determined he had to evict Travis. Hines testified that he gave Travis a final notice at the end of one week, and the home invasion happened shortly thereafter.

¶ 37. As to other evidence which pointed to Travis’s guilt, there was the extensive testimony of Jones who testified that he saw Travis and another man push into Hines’s apartment with guns and then bring two people out with their hands bound and eyes blindfolded. He said he saw Travis and the other man put the male and female victims in the truck in which Jones had been sitting and drive off. Jones said he got out of the truck and did not leave with the group. He said that after the woman was brought back to the apartment, he heard Travis tell her he would not hurt her if she cooperated. Jones testified that Travis brought four laundry bags full of items from the apartment and placed them in the back of the truck. Addition items taken from the apartment were also found in an automobile belonging to Travis. Detective Den-son testified that during the investigation he looked into the automobile and saw a dark-colored ski mask. After securing a search warrant for the automobile, the police found the keys to all of the apartments, Watson’s keys, and a set of crystal-all items which Hines and Watson identified as theirs. Thus, we find that the trial judge did not abuse his discretion when he overruled the motion for a new trial. This issue is without merit.

B. Judgment Notwithstanding the Verdict

¶ 38. The crime for which Travis was found guilty, burglary of an inhabited dwelling, is found in Mississippi Code Annotated section 97-17-23 (rev.2006). At the time of his indictment the statute read as follows:

Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by imprisonment in the Penitentiary not less than three (3) years nor more than twenty-five (25) years.

Miss.Code Ann. § 97-17-23.

¶ 39. A motion for a directed verdict or a JNOV attacks the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). In considering the sufficiency, we view the evidence in the light most favorable to the prosecution. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss. 2005). We must reverse and render if the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.” Id. However, the evidence will be found sufficient if reasonable jurors, applying the beyond a reasonable doubt standard, might reach different conclusions on each element of the offense. Id. (citing Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). Another salient rule is that it is the jury not the trial court or this Court which is charged with assessing the weight and credibility of the evidence and with resolving conflicts in the evidence. Latiker v. State, 918 So.2d 68, 73(¶ 12) (Miss.2005).

¶ 40. We find that in viewing the evidence in the light most favorable to the State that there was sufficient evidence to support Travis’s guilt of house burglary. Jones testified that he saw Travis and another man push their way into Hines’s apartment with guns and then lead a man and woman whose hands were tied and their eyes covered out of the apartment and then take the two victims away. Travis was at odds with Hines because Hines was about to evict him for not paying his rent. Jones testified that he saw Travis put four laundry bags full of items from the apartment into the back of a truck Travis was driving. Further, the police detective found items from the apartment and a ski mask in a car belonging to Travis that was parked at the scene of the crime. This evidence meets every element of the crime of house burglary. Therefore, we find that this issue is without merit.

¶ 41. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TEN YEARS SUSPENDED AND FIVE YEARS OF SUPERVISED PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Initially Travis was represented by retained counsel, but when his mother could no longer pay the lawyer, the attorney was allowed to withdraw as counsel. The Hinds County Public Defender's Office was appointed to represent Travis, but the motion at issue was filed by him pro se.

      . "It is the duty of the movant, when a motion or other pleading is filed ... to pursue said motion to hearing and decision by the court. Failure to pursue a pretrial motion to hearing and decision before trial is deemed an abandonment of that motion." URCCC 2.04.

      . No first name was supplied for Mr. Booker.

      . The State argues in its appellee’s brief that the only issue before the Court is an alleged violation of Travis's constitutional right to a speedy trial. The State argues that Travis is procedurally barred from arguing a violation of his state statutory right as he did not raise that issue at the trial level. We disagree with the State in that the only speedy trial right that was examined by the trial court was the state statutory right.

      . Section 97-17-23 was amended in 2008, effective July 1, 2008. 2008 Miss. Laws chapter 307 § 1. The amendment is not relevant for our discussion.