author: IRVING, P.J.,

text:
    Barry Lemax MELTON a/k/a Barry Melton a/k/a Barry L. Melton, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00642-COA.
    Court of Appeals of Mississippi.
    Oct. 9, 2012.
    Rehearing Denied April 2, 2013.
    Certiorari Denied July 18, 2013.

      Phillip Broadhead, Oxford, Leslie Lee, Jackson, Chelsea Crittenden, Erica Rollins, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before IRVING, P.J., RUSSELL and FAIR, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On March 2, 2011, a jury found Barry Lemax Melton guilty of possession of a controlled substance with intent to sell or distribute. The Harrison County Circuit Court sentenced Melton as a habitual offender to forty years in the custody of the Mississippi Department of Corrections. Melton filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV), which the circuit court denied. Feeling aggrieved, Melton appeals and argues that the circuit court erred in: (1) admitting evidence obtained in violation of his Fourth Amendment rights, (2) denying his motion for a new trial, (3) denying his motion for a JNOV, and (4) failing to order a mistrial.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On January 13, 2009, Officer Luis Garcia, with the Gulfport Police Department, stopped Melton’s vehicle when he made a right-hand turn without using a turn signal. When Officer Garcia approached Melton’s vehicle, he requested Melton’s driver’s license. Melton informed Officer Garcia that his driver’s license had been suspended. Officer Garcia instructed Melton to exit his vehicle. After Melton exited his vehicle, Officer Garcia asked Melton if he had any weapons. Melton responded that he had a knife and reached toward his jacket pocket. Officer Garcia told Melton not to reach for the knife and ordered him to place his hands on the vehicle. Officer Garcia then removed Melton’s knife and frisked him. He felt a bulge in Melton’s left pocket, which turned out to be a black pouch. Officer Garcia removed the pouch, opened it, and found two glass pipes. After placing Melton under arrest, Officer Garcia called a tow truck to take Melton’s vehicle to the police impound lot. At some point prior to the tow truck’s arrival, Officer Tim Adams of the Gulfport Police Department arrived on the scene to conduct an inventory search of Melton’s vehicle. Officer Adams testified that the search was conducted according to the Gulfport Police Department’s policy.

¶ 4. During the inventory search, Officer Adams discovered a black pouch on the floor next to the driver’s seat. Officer Adams opened the pouch and found two clear tubes containing a white substance and three empty plastic “baggies.” He approached Melton, who was by then secured in Officer Garcia’s vehicle, read him his Miranda rights, and asked Melton to identify the white substance. Melton told Officer Adams that the white substance was methamphetamine. Melton was then taken to the Gulfport Police Department and booked for possession of a controlled substance.

¶ 5. At the police department, Sergeant Aaron Fore interviewed Melton. During the interview, Melton stated that he had made seven grams of methamphetamine that day. He said that he had sold approximately two grams, given some away, and used approximately .5 grams before Officer Garcia arrested him. Melton also confirmed that he told Officer Garcia that his driver’s license had been suspended and that he did not use a turn signal because the signal light on the right side of his vehicle did not work. Additionally, Melton admitted that he had intentionally “stashed the dope” to keep both Officer Garcia and his companion from seeing it.

¶ 6. Dr. Thomas Pittman, who was the director of the drug-identification laboratory that weighed and tested the white substance found in Melton’s vehicle, testified that the substance weighed 1.63 grams and was methamphetamine. Sergeant Fore testified that, based on his training and experience with narcotics cases, the amount of methamphetamine possessed for personal use would be less than .25 grams.

¶ 7. Prior to trial, Melton filed a motion to suppress all evidence stemming from the traffic stop, which the circuit court denied. Melton also filed a motion in li-mine requesting that the circuit court exclude “any and all evidence that may be presented as 404(b) evidence against him” and “any and all evidence regarding any uncharged criminal actions.” The circuit court granted the motion. Nevertheless, during Sergeant Fore’s testimony, the State introduced Melton’s unredacted, audio-recorded police statement, where Melton suggested that he had committed other criminal acts.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Fourth Amendment Violation

¶ 9. Melton argues that the circuit court erred in admitting evidence stemming from the traffic stop. Melton contends that the traffic stop was illegal; thus, any evidence recovered during the stop was inadmissible.

¶ 10. Appellate courts apply a mixed standard of review to Fourth Amendment claims. Eaddy v. State, 63 So.3d 1209, 1212 (¶ 11) (Miss.2011). Determinations of reasonable suspicion or probable cause are reviewed de novo. Id. However, the circuit court’s factual findings are reviewed under the substantial-evidence and clearly-erroneous standards. Id. Here, there are no factual disputes concerning the circumstances surrounding the traffic stop. Therefore, we will only review the circuit court’s application of the law to the undisputed facts.

¶ 11. The Fourth Amendment of the United States Constitution and Article 3, Section 23 of the Mississippi Constitution prohibit unreasonable searches and seizures. Dies v. State, 926 So.2d 910, 917-18 (¶ 21) (Miss.2006). The Fourth Amendment’s reasonableness requirement extends to brief investigatory stops of a vehicle. Id. at 918 (¶ 21). The Mississippi Supreme Court has held that an investigatory stop is reasonable as long as the officer has “probable cause to believe that a traffic violation has occurred.” Moore v. State, 986 So.2d 928, 934 (¶ 19) (Miss.2008) (quoting Harrison v. State, 800 So.2d 1134, 1138 (¶ 18) (Miss.2001)). In Mississippi, the test for probable cause is the totality of the circumstances. Id. (quoting Harrison, 800 So.2d at 1138 (¶ 18)).

¶ 12. Melton contends that he was the victim of an illegal, pretextual traffic stop. The State responds that Melton’s violation of Mississippi Code Annotated section 63-3-707 (Rev.2004) provided probable cause for Officer Garcia to initiate the stop. Section 63-3-707 provides in pertinent part:

No person shall turn a vehicle from a direct course upon a highway unless and until ... after giving a clearly audible signal ... or after giving an appropriate signal in the manner provided in this article in the event any other vehicle may be affected by such movement.
A signal of intention to turn right or left shall be given continuously for a reasonable distance before turning.

(Emphasis added). Melton argues that he was not required to use a turn signal because his and Officer Garcia’s vehicles were the only vehicles on the road, and Officer Garcia’s vehicle was traveling at a safe distance behind his. We disagree.

¶ 13. Section 63-3-707 requires a driver turning right or left to give a continuous signal for a reasonable distance before turning in the event any other vehicle may be affected by such movement. Melton urges a very restrictive interpretation of section 63-7-707, focusing upon the word “affected.” Apparently, he believes that another vehicle is affected only if there is a danger of the other vehicle being involved in an accident with the non-signaling vehicle. We decline to embrace such a restrictive construction of the statute, as other prudent drivers on the highway may well be affected by the failure of a driver to signal his intention to turn, even when no accident is likely to occur as the result of the driver’s failure to give a proper signal. The fact that Officer Garcia was traveling at a safe distance behind Melton is of no moment. All drivers are required to drive just as Officer Garcia was driving because every driver is supposed to drive at a safe distance behind the preceding vehicle. Thus, Melton violated section 63-3-707 by failing to signal, even though there was no imminent threat of a collision between his vehicle and Officer Garcia’s. Accordingly, Officer Garcia had probable cause to stop Melton’s vehicle.

¶ 14. It follows then that the subsequent searches of Melton and his vehicle were lawful. Officer Garcia arrested Melton for driving with a suspended license, and he frisked Melton as a search incident to Melton’s arrest. It is well established that there is no Fourth Amendment violation when a person under lawful custodial arrest is subjected to a full search of his person. Johnson v. State, 999 So.2d 360, 366 (¶ 24) (Miss.2008). Therefore, the black pouch containing the glass pipes was admissible.

¶ 15. Additionally, the inventory search of Melton’s vehicle, during which Officer Adams discovered the methamphetamine, was conducted according to Gulfport Police Department policy and was limited to the areas of Melton’s vehicle where his property could reasonably be expected to be found. See Robinson v. State, 418 So.2d 749, 754-55 (Miss.1982) (warrantless inventory search of a vehicle is constitutionally permissible provided that it is limited in scope and conducted pursuant to standard police procedures). Accordingly, the circuit court did not err in denying Melton’s motion to suppress. This issue is without merit.

2. Motion for a New Trial

¶ 16. Melton argues that he is entitled to a new trial because the State failed to prove his intent to distribute methamphetamine. Particularly, Melton asserts that the State failed to prove that the amount of methamphetamine in his possession was not a reasonable amount to hold for personal consumption.

¶ 17. “A motion for a new trial challenges the weight of the evidence.” Knight v. State, 72 So.3d 1056, 1064 (¶ 31) (Miss.2011) (citing Bush v. State, 895 So.2d 886, 844 (¶ 18) (Miss.2005)). An appellate court will not disturb a jury’s verdict unless it “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (quoting Bush, 895 So.2d at 844 (¶ 18)). Additionally, an appellate court must view the evidence in the light most favorable to the verdict. Id. at 1065 (¶ 34).

¶ 18. Our supreme court has stated that “[t]here is no magic number as to quantity with respect to evidence of intent to distribute.” Fox v. State, 756 So.2d 753, 759 (¶ 19) (Miss.2000). However, “[wjhere the amount is greater than what one might ordinarily have for personal consumption, it does create an inference of intent to distribute.” Id. Additionally, “[i]n the case of drug sales, ... evidence of prior involvement in the drug trade [is admissible] to prove intent to distribute.” Palmer v. State, 939 So.2d 792, 795 (¶ 9) (Miss.2006) (citations omitted).

¶ 19. The State offered uncontradicted evidence that less than .25 grams of methamphetamine is the typical amount possessed for personal consumption. At the time of his arrest, Melton possessed over six times that amount. Thus, the quantity alone created an inference of Melton’s intent to distribute. Moreover, the jury heard Melton’s statement to the police in which he admitted that he was involved in the drug trade, even going so far as to classify himself as “the best cook on the Coast.” Thus, we cannot say that the jury’s verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. This issue is without merit.

3. Motion for a JNOV

¶ 20. Melton also contends that the circuit court erred in denying his motion for a JNOV because the State presented insufficient evidence that he intended to sell or distribute methamphetamine. A motion for a JNOV challenges the legal sufficiency of the evidence. Knight, 72 So.3d at 1063 (¶ 24). All credible evidence must be viewed in the light most favorable to the State. Id. An appellate court will uphold the circuit court’s ruling if:

the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test[,] it is insufficient to support a conviction. Should the facts and inferences considered in a challenge to the sufficiency of the evidence 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, the proper remedy is for the appellate court to reverse and render.

Id. (internal quotations omitted) (quoting Bush, 895 So.2d at 843 (¶ 16)).

¶ 21. Melton maintains that the amount of methamphetamine found in his possession on the day of his arrest was only indicative of personal use. As previously discussed, the State presented evidence that, at the time of his arrest, Melton possessed over six times the typical amount held for personal use. The amount alone created an inference of Melton’s intent to distribute methamphetamine. Additionally, during the inventory search of Melton’s car, police officers found baggies commonly used to package methamphetamine for sale. Furthermore, Melton admitted in his police statement that he had already sold some of the methamphetamine. Accordingly, we find that there is sufficient evidence to support the juiy’s verdict. This issue is without merit.

⅜. Mistrial

¶22. Melton argues that the circuit court should have sua sponte ordered a mistrial when the State introduced his unredacted, audio-recorded police statement because it contained evidence prohibited by the circuit court’s grant of his motion in limine. “The trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant’s case.... ” Parks v. State, 930 So.2d 383, 386 (¶ 8) (Miss.2006) (citing Tate v. State, 912 So.2d 919, 932 (¶ 41) (Miss.2005)). The circuit court’s decision to declare a mistrial is reviewed for abuse of discretion. Id.

¶ 23. After the circuit court granted Melton’s motion in limine, his counsel agreed to allow the statement into evidence without first seeking to have any portion of it redacted, even though it contained the evidence that Melton sought to have excluded, namely the fact that he had sold methamphetamine on the day of his arrest. The following exchange occurred during Sergeant Fore’s testimony:

Q: Did Mr. Melton choose to speak with you?
A: Yes, sir, he did.
Q: Was his statement that you took, was it a recorded statement?
A: Yes, sir, it was.
Q: Did he say where he had been earlier that evening?
A: Yes, he did.
Q: What did he say?
A: Mr. Melton stated to me that he had been at a friend’s house.
[ATTORNEY FOR DEFENDANT]: Judge, if I may, it’s my understanding we are going to introduce the recorded statement, I think that would be the best evidence.
[BY THE COURT]: Are we going to play the tape?
[ATTORNEY FOR THE STATE]: Yes, Your Honor.
[BY THE COURT]: Let’s get him to identify and play it.
[ATTORNEY FOR THE STATE]: Detective Fore, take a look at what’s been marked as [the] State’s Exhibit 4.... Can you tell me if you recognize this?
A: Yes, sir. It’s a compact disc containing the audio[-]reeorded statement [that] I took from Mr. Melton.
S: * ⅜
Q: Is it a fair and accurate representation of the statement that you took that day?
A: Yes, it is.
[ATTORNEY FOR THE STATE]: May I publish to the jury, Your Honor?
[BY THE COURT]: Yes, sir.

¶ 24. It is clear from this exchange that Melton’s attorney preferred that the recorded statement be played for the jury. In fact, she characterized the statement as the “best evidence” of Melton’s conversation with Sergeant Fore and did not make any additional objections to the statement. We fail to see how Melton can now argue that the circuit court abused its discretion in admitting the statement, even though the court had granted his motion in limine, when it was Melton’s attorney who urged its admission without first seeking to have the statement redacted. Accordingly, this issue is without merit.

¶ 25. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION AS A HABITUAL OFFENDER OF POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO SELL OR DISTRIBUTE AND SENTENCE OF FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. RUSSELL, J., CONCURS IN RESULT ONLY.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Melton was traveling with Sharon Lott. Lott was also arrested on the day of the incident.

      . Rule 404(b) of the Mississippi Rules of Evidence.


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Ricky ARCHER a/k/a Ricky D. Archer a/k/a “Slick”, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01127-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2012.
    Rehearing Denied April 9, 2013.
    Certiorari Denied July 18, 2013.

      Julie Ann Epps, Canton, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., CARLTON and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Ricky Archer was convicted of fondling and statutory rape of his daughter, “Abby.” Archer was sentenced to sixteen years imprisonment on the rape count and two years for the fondling, with the sentences to run concurrently. On appeal he raises eleven varied issues. As we find no reversible error, we affirm Archer’s convictions and sentences.

FACTS

¶ 2. In 2006, Abby was twelve years old and in the fifth grade. Her parents were unmarried, and she lived with her father. Abby testified that one evening, Archer picked her up from a visit with her mother. Archer was drunk, and he drove around instead of taking them home. He asked Abby whether she had developed underarm and pubic hair. Eventually, Archer pulled to the side of the road and undressed Abby. After demanding and receiving assurances that she would not tell her mother, Archer began touching Abby and put his fingers into her vagina. Archer then drove to a more secluded place in Morgan City, Mississippi, where he had sex with Abby. Archer had sex with Abby again that night after they finally returned home. In her testimony Abby also recounted several other times Archer had sex with her, including two occasions where he did it in front of one of her sisters.

¶ 3. Abby’s older sisters, “Betty” and “Claire,” each testified that Archer had sex with Abby in their presence. Betty testified that Archer drove her and Abby to a secluded place where he had sex with Abby to introduce Betty to the idea of having sex with him, and then he had sex with Betty. Claire testified to a similar incident. Archer made statements to the effect that he was teaching the girls how to have sex. According to Abby, Archer continued to have sex with her for years after the first incident.

¶ 4. Abby did not disclose the abuse until 2008. She first told her mother, who did not respond because she was intoxicated at the time. Later, Abby told her aunt, who reported it to the authorities. At the time of trial in 2010, Abby was fifteen, Betty was eighteen, and Claire was twenty.

¶ 5. For the defense, Archer’s niece testified that Abby had told her the abuse did not happen and that she wanted her father to get out of jail. Archer also called his son to testify to a similar statement. Archer’s theory of the case was that Abby was angry with his discipline and had accused him at the prompting of her maternal aunt, who had allegedly threatened that Abby would be sent to a foster home if she did not testily.

¶ 6. The indictment alleged that Archer committed statutory rape and fondling between August 1, 2006, and June 31, 2007. Archer was convicted of both counts, and he appeals.

DISCUSSION

¶ 7. Archer enumerates eleven issues on appeal, which we have reorganized somewhat for our analysis.

1. Sufficiency of the Evidence

¶ 8. In his first issue, Archer alleges there was insufficient evidence to support his conviction. “[T]he critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quotations omitted). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 9. The linchpin of Archer’s argument is Mississippi Code Annotated section 97-3-69 (Rev.2006), which appears to require corroboration of the prosecutrix’s testimony to support a statutory rape conviction. In recent years, however, the Mississippi Supreme Court has unambiguously held that the statute requires corroboration only if the victim’s testimony is discredited or contradicted by other credible evidence. Anderson v. State, 62 So.3d 927, 943 (¶ 55) (Miss.2011); Poole v. State, 46 So.3d 290, 294 (¶ 25) & n. 9 (Miss.2010); Parramore v. State, 5 So.3d 1074, 1077-78 (¶ 12) (Miss.2009); Withers v. State, 907 So.2d 342, 353 (¶ 32) (Miss.2005). Archer relies on older cases to support his argument, ignoring the supreme court’s more recent holdings. We are bound by that precedent.

¶ 10. At any rate, this discussion is academic because Abby’s testimony was corroborated by her two sisters. Archer argues that their testimony is not credible, but the concerns he raises — the girls’ reluctance to come forward, prior denials of abuse, and alleged minor inconsistencies in the testimony — were properly left to the jury. “The law is clear that the weight and credibility to give to the evidence are within the province of the jury.” Victory v. State, 83 So.3d 370, 375 (¶ 22) (Miss.2012).

¶ 11. We find Archer’s convictions supported by sufficient evidence.

2. Weight of the Evidence

¶ 12. A challenge to the weight of the evidence will be successful only when the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18).

¶ 13. The evidence must be viewed in the light most favorable to the verdict, and a new trial should be granted “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. The motion for a new trial is entrusted to the trial judge, who had a first-hand view of the trial. “[R]eversal is warranted only if the trial court abused its discretion....” Ivy v. State, 949 So.2d 748, 753 (¶ 21) (Miss.2007).

¶ 14. Archer argues that the absence of physical evidence and his attacks on the credibility of the victims require reversal. Again, however, credibility was a question for the jury. See Victory, 83 So.3d at 375 (¶ 22). As an appellate court reviewing a cold record, we cannot say the trial court abused its discretion in denying the motion for a new trial. We do not find the verdict against the overwhelming weight of the evidence.

3. Cross-examination; Impeachment; Misconduct

¶ 15. Only two witnesses testified for Archer — Latonya Edwards, his niece, and “Little Ricky” Archer, his son. Both recounted that Abby had denied the abuse some time after Archer’s arrest. Under this umbrella, Archer complains of the prosecutor’s cross-examinations and makes certain arguments regarding the testimony.

A. Latonya Edwards

¶ 16. During his cross-examination of Edwards, the prosecutor asked about an interview she had with him the day before, the first day of the trial. The prosecutor repeatedly contended that Edwards had told him only that Abby said she wanted her father to get out of jail. According to the prosecutor, Edwards had not mentioned Abby also denied a sexual relationship with her father. Edwards disputed the prosecutor’s account. The prosecutor then repeated his account several times and asserted that two other people — an investigator and an intern — were present during the interview. The prosecutor, through his questions, insinuated they would contradict Edwards’s testimony.

¶ 17. On appeal, Archer argues the prosecutor lacked a factual basis for the questions asked in his cross-examination of Edwards because he did not call any witnesses in rebuttal to substantiate his assertions about what Edwards had omitted from the interview.

¶ 18. A prosecutor must always have a good faith basis for questions asked on cross-examination. Hosford v. State, 525 So.2d 789, 793 (Miss.1988). This means that the questions must be grounded in fact; the prosecutor is not required to produce extrinsic evidence in support of every cross-examination on prior inconsistent statements. See Harrison v. State, 534 So.2d 175, 178-179 (Miss.1988); Foster v. State, 508 So.2d 1111, 1115 (Miss.1987), overruled on other grounds by Powell v. State, 806 So.2d 1069, 1080 (¶ 33) (Miss.2001). See also 4 B. Weinstein & M.A. Berger, Weinstein’s Federal Evidence § 613.05[1] (2d. ed.2012).

¶ 19. Cross-examination that is unfairly prejudicial to the defendant can be error, however. For example, in Walker v. State, 740 So.2d 873, 885 (¶ 46) (Miss.1999), the prosecutor asked questions, couched as impeachment, that insinuated uncharged bad acts of the defendant— membership in a gang and threatening a witness with gang retaliation. See also Hosford, 525 So.2d at 790-94 (asking defendant whether he had sexually molested his stepchildren); Flowers v. State, 842 So.2d 531, 552 (¶ 58) (Miss.2003) (asking three defense witnesses whether they had harassed an eyewitness and told her to lie).

¶ 20. Similarly, “counsel may not use prior inconsistent statements as a guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible.” Flowers v. State, 773 So.2d 309, 326 (¶ 58) (Miss.2000) (quotations omitted) (emphasis in original). In Flowers, the prosecutor asked a witness whether she had told another person that she gave the defendant shoes like those worn by the killer. The witness denied making the statement, but the supposed impeaching witness was never asked to substantiate the prosecutor’s question. This was prejudicial error because the prosecutor cannot use impeachment “merely as a subterfuge to place incriminating hearsay before the jury.” Harrison, 534 So.2d at 178-79 (Miss.1988).

¶ 21. Archer has not shown that the prosecutor’s cross-examination rose to the level of unfair prejudice illustrated by the above cases. Moreover, his contention that the prosecutor lacked a factual basis is unsupported by the record because Edwards equivocated in her testimony on redirect. The following exchange occurred:

A. [Abby] had told me her daddy never did nothing [sic] to her.
Q. Did you tell that to [the prosecutor] yesterday?
A. Yes. No, I told him that she was ready for her daddy to come home.
Q. Okay. What else did you tell [him] yesterday, when I came in the room?
[objection omitted]
Q. Do you recall talking to [the prosecutor] after I came in the room?
A. No.

Edwards’s equivocation provided a sufficient factual basis for the prosecutor’s questions, as inconsistency goes to the weight of the testimony rather than its sufficiency as evidence. See Jamison v. Barnes, 8 So.3d 238, 245 (¶ 17) (Miss.Ct.App.2008).

¶ 22. That is not to say that we condone the line of questioning. There is some merit to Archer’s claim that the prosecutor essentially offered unsworn testimony through his assertions on cross-examination. That was improper. See Foster v. State, 639 So.2d 1263, 1289 (Miss.1994). But Archer did not object at trial, and the failure to offer a contemporaneous objection waives this issue for appeal. See Caston v. State, 823 So.2d 473, 503 (¶ 102) (Miss.2002). “An appellate court is under no obligation to review an assignment of error when an objection was not made or when an objection was untimely.” Id.

¶ 23. Archer argues that we should consider this argument under plain error, which “is properly utilized for correcting obvious instances of injustice or misapplied law.” Smith v. State, 986 So.2d 290, 294 (¶ 10) (Miss.2008) (quotations omitted). However, the jury was properly instructed to base its verdict only on the evidence before it. Considering that, defense counsel’s opportunity to object, the relatively benign subject matter of the prosecutor’s statements, and Edwards’s subsequent equivocation, we find that the prosecutor’s questioning was not unfairly prejudicial and does not warrant review as plain error.

¶ 24. We find no reversible error in the cross-examination of Edwards.

B. Little Ricky Archer

¶ 25. Archer contends that the prosecutor’s cross-examination and arguments relating to Little Ricky’s testimony misled the jury. Little Ricky testified that both Abby and Betty had told him the abuse never happened. On cross, the prosecutor asked Little Ricky whether he had mentioned this when “first asked” during the interview. Little Ricky admitted he had not, but he explained he had been cut off by aggressive questioning from the State’s investigator. The prosecutor then asked whether a Mr. Miller, the defense attorney’s investigator, had told Little Ricky not to discuss the case with the prosecution. At this point, Archer objected. During a bench conference on the objection, the trial judge expressed concern that the prosecutor’s earlier question was misleading given that the prosecutor admitted Little Ricky had — later in the interview — given the whole substance of his in-court testimony. When the cross-examination recommenced, Little Ricky admitted someone had told him not to speak with anyone regarding the case, but he denied ever identifying this person as the defense investigator. Little Ricky testified he believed the appropriate time to come forward was the trial. He was equivocal about whether he had spoken to either of Archer’s prior defense attorneys.

¶ 26. Archer’s argument on appeal is that the prosecutor confused the jury by never clearly bringing out on cross-examination that, during the pretrial interview with the prosecutor, Little Ricky had eventually disclosed Abby’s denial. Instead, the prosecutor focused on Little Ricky’s failure to come forward until the trial. The prosecutor also argued repeatedly that Little Ricky had not come forward “until today,” implying that Little Ricky had not mentioned Abby’s denials during his interview with the prosecutor the day before (the first day of the trial). According to Archer, the prosecutor’s questioning and argument were confusing to the jury.

¶ 27. This issue is procedurally barred because Archer failed to object on these grounds to the prosecutor’s questions and arguments. Caston, 823 So.2d at 503 (¶ 102). If Archer felt the cross-examination was confusing or left a mistaken idea in the minds of the jury, he had the chance to clarify the testimony on redirect. He did not attempt do so. Again, we find that the error, if any, does not rise to the level of plain error.

C. Failure to Come Forward Arguments

¶28. Finally, Archer argues that the prosecutor committed reversible error by insinuating that Little Ricky and Latonya Edwards had a duty to come forward to the authorities with their exculpatory testimony. The prosecutor repeatedly contended that this made their testimony less credible. Again, Archer failed to object at trial and must travel, if at all, under plain error.

¶ 29. Archer’s first argument is that the trial court was required to make an initial bench determination of the reason for the witnesses’ silence before it could be used in the trial. However, all of the authorities offered are from the State of New York. Archer makes no effort to support this claim with Mississippi authority, nor does he argue for a change in Mississippi law. We cannot base our decision on foreign authority standing by itself, and thus Archer’s claim fails for a want of relevant authority. See M.R.A.P. 28(a)(6); Rhoda v. Weathers, 87 So.3d 1067, 1072 (¶ 22) (Miss.Ct.App.2011), rev’d on other grounds, 87 So.3d 1036 (Miss.2012) (“Rule 28 does not simply require a party to mention authority; the authority must be used to develop the argument in a meaningful way.”).

¶ 30. The only Mississippi authority cited by Archer is Hickson v. State, 697 So.2d 391 (Miss.1997), but that case does not hold that cross-examination on a failure to come forward with exculpatory evidence is always prohibited. That argument has been made before and rejected; this Court has interpreted Hickson only to “restrict impeachment of witnesses by silence to adequate cross-examination.” Estes v. State, 782 So.2d 1244, 1253 (¶¶ 19-20) (Miss.Ct.App.2000) (emphasis added). The cross-examination of Hickson’s wife was unfair not because it pointed out that she had failed to come forward, but because the jury was never informed of spousal privilege. Id.; Hickson, 697 So.2d at 398 n. 7.

¶ 31. Cross-examination on prior silence is not prohibited where it is fair and adequate. Powell v. State, 662 So.2d 1095, 1100 (Miss.1995); Estes, 782 So.2d at 1253 (¶ 20). We do not find the prosecutor’s arguments to be plain error because this is not an “obvious instance[ ] of injustice or misapplied law.” Smith, 986 So.2d at 294 (¶ 10). We conclude that this issue is procedurally barred.

4. Prosecutor’s Closing Argument

¶ 32. Archer challenges several statements made by the prosecutor in his closing argument.

A. Corroboration

¶ 33. Archer contends that the prosecutor erred in arguing to the jury that Abby’s testimony did not require corroboration to support a conviction. According to Archer, the prosecutor both misstated the law and overstepped his bounds by instructing the jury on the law.

¶ 34. Once again, Archer failed to object at trial, and this issue is barred as a result. Caston, 823 So.2d at 503 (¶ 102). Contemporaneous objections are required “so that the [trial] court may, when possible, correct the error with proper instructions to the jury.” Baker v. State, 327 So.2d 288, 292-93 (Miss.1976).

¶ 35. We have previously rejected Archer’s argument that Mississippi law requires corroboration to support a statutory rape conviction. His contention that the prosecutor misled the jury in stating otherwise is barred and without merit.

¶36. As to Archer’s second argument, we agree that “it is the province of the trial judge to announce the law to the jury.” Clemons v. State, 320 So.2d 368, 372 (Miss.1975). The jury was not instructed by the trial court one way or the other on the corroboration requirement. If the State desired such an instruction, it should have submitted it in writing for the court’s consideration. See URCCC 3.07. Nonetheless, no reversible error resulted because the prosecutor correctly stated the law and did not contradict the instructions of the court. See Harris v. State, 207 Miss. 241, 249, 42 So.2d 183, 185 (1949).

¶ 37. This issue is procedurally barred and without merit.

B. Failure to Testify

¶ 38. The prosecutor stated during his rebuttal closing argument that the testimony of Abby, Betty, and Claire was “unrebutted” and had not been impeached. According to Archer, since he was the only one who could have contradicted their testimony, this was an inferential comment on his decision not to testify and amounts to reversible error.

¶ 39. Archer did not object on these grounds at trial, and the issue is again procedurally barred on appeal.

¶ 40. Notwithstanding the procedural bar, we will address the merits of Archer’s claim. First of all, Archer’s assertion that he is the only one who could have rebutted the girls’ testimony is false, given that there were two other people present during the incidents involving Betty and Claire. Second, Archer simply has the law wrong. He relies on Whigham v. State, 611 So.2d 988 (Miss.1992), a case that has been overruled. In Wright v. State, 958 So.2d 158, 164 (¶ 14) (Miss.2007), the Mississippi Supreme Court stated:

This Court has repeatedly held that attorneys on both sides are allowed wide latitude in their closing arguments and that there is an obvious difference between a comment on the defendant’s failure to testify and a comment on defendant’s failure to put on a credible defense.

The supreme court noted that its prior decisions to the contrary were based on a since-repealed Mississippi statute and a United States Supreme Court decision that had been abrogated by subsequent decisions of that court. Id. at 164-65 (¶¶ 16-20). The aberrant Mississippi eases (including Whigham) were overruled. Id. at 166 (¶ 21).

¶ 41. The Wright court retained the rule that a prosecutor may not argue that the defendant’s failure to testify is substantive evidence of his guilt, but it permitted the prosecution to “fairly re-sponde] to an argument of the defendant by adverting to [his] silence.” Id. at 166 (¶ 20) (quoting United States v. Robinson, 485 U.S. 25, 34, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988)). Arguments of the prosecutor must be “viewed in context, taking into consideration the circumstances of the case.” Curry v. State, 939 So.2d 785, 789 (¶ 13) (Miss.2006).

¶ 42. Here, the prosecutor’s comments were made during his rebuttal, in response to Archer’s attacks on the girls’ testimony. The argument accurately reflected the facts in evidence and was a fair response to Archer’s defense. This issue is procedurally barred and, notwithstanding the bar, without merit.

C. Abby’s Motive to Come Forward

¶ 43. Next, Archer contends the prosecutor committed reversible error by arguing that Abby had come forward to protect her baby sister, “Delores,” from Archer. The prosecutor was recalling Abby’s testimony to that effect.

¶44. Archer’s failure to object means that this issue can again only be considered, if at all, under plain error. He relies on West v. State, 485 So.2d 681, 689-90 (Miss.1985), a death penalty case that bears little resemblance to the one at bar. West was accused of raping and murdering a fifty-four-year-old woman. Several children witnessed him running from the scene of the crime, and it was apparent to the jury that one of them was afraid of the defendant. During his closing argument, the prosecutor insinuated that if West was not convicted, he would harm the children who had testified against him. The prosecutor began listing off the children’s names, stating “Caprice is still out there,” and so forth, drawing an objection. This, together with other misconduct and the heightened standard of review in death penalty cases, mandated reversal. Archer also cites another death penalty case, Lester v. State, 692 So.2d 755 (Miss.1997) (overruled on other grounds), where a defendant was accused of sexually abusing his daughter and beating her to death. The prosecutor contended that the only reason the defendant had not abused another daughter was that he had no access to the child since she was three months of age. This was found to be error, and Lester’s conviction and sentence were reversed on a finding of numerous other errors in the trial. Id. at 781, 802.

¶ 45. We find these cases in-apposite, as the comments did not result in an unfair trial. “It is well-settled that counsel is allowed considerable latitude in the argument of cases and is limited not only to the facts presented in evidence, but also to deduction and conclusions he may reasonably draw therefrom, and the application of the law to the facts.” Sanders v. State, 801 So.2d 694, 704 (¶ 39) (Miss.2001) (citations and quotations omitted). “[WJhere the argument does not result in unjust prejudice against the accused as to result in a decision influenced by the prejudice so created, [a reviewing court] will find it harmless.” Id. (citations and quotations omitted).

¶ 46. It is readily apparent from the record that the prosecutor’s purpose was not to inflame the jury with irrelevant or otherwise inadmissible speculation. Instead, he was responding to Archer’s defense by reminding the jury of Abby’s testimony about why she had finally come forward. We do not find this unfairly prejudicial. This issue is procedurally barred and without merit.

D. Presumption of Innocence

¶ 47. During his closing argument, the prosecutor stated:

Now, we promised in the first part of this case, I said, Now, ya’ll, I want to make sure this defendant gets a fair trial, he was presumed innocent, and at that stage of the game he was. But now he’s not. He’s no longer presumed innocent, because the evidence against him as been laid out to take away that presumption of innocence, to show the light of day of what happened and who this defendant is and what he did to these children. It’s out for y’all to make a decision on this case.

¶ 48. In this instance, we agree with Archer that prosecutor’s remarks were improper. We found nearly identical comments to be error — albeit harmless — in McCoy v. State, 954 So.2d 479, 488 (¶ 29) (Miss.Ct.App.2007). The State was free to argue that it had overcome the presumption of innocence, but it was wrong to suggest the presumption no longer attached once the evidentiary portion of the trial was completed. Archer was presumed innocent until the jury decided the State had met its burden of proof beyond a reasonable doubt.

¶ 49. However, finding that the comments were error is not the end of our analysis. Because Archer did not object at trial, he must travel under plain error, which is, again, “properly utilized for correcting obvious instances of injustice or misapplied law.” Smith v. State, 986 So.2d 290, 294 (¶ 10) (Miss.2008) (quotations omitted).

¶ 50. It appears the prosecutor was trying to explain that the State had overcome the presumption of innocence, not deliberately attempting to mislead or confuse the jury. Archer’s failure to object prevented the trial court from explicitly correcting the prosecutor’s remarks, though defense counsel did use her own argument to repeatedly remind the jury that the burden of proof remained with the State. The trial court also properly instructed the jury on the nature of closing arguments, and it specifically instructed that the presumption of innocence “stays with the defendant throughout the trial.” Considering all of that, we do not find that the prosecutor’s comments were so unfairly prejudicial as to reach the level of plain error. This issue is likewise procedurally barred and without merit.

5. Other Bad Acts Evidence

¶ 51. Under this umbrella, Archer contends the trial court erred in allowing the testimony of Betty and Claire, who each testified that Archer had sex with them after they witnessed him having sex with Abby. According to Archer, this violated Mississippi Rule of Evidence 404(b), which prohibits the use of other bad acts “to prove the character of a person in order to show that he acted in conformity therewith,” as well as Mississippi Rule of Evidence 403, which prohibits otherwise admissible evidence when its probative value is substantially outweighed by the danger of unfair prejudice.

¶52. The admission of evidence is within the discretion of the trial court and can only be reversed on appeal if that discretion has been abused. Eckman v. Moore, 876 So.2d 975, 984 (¶ 31) (Miss.2004). Even “[w]here such error is found, [an appellate court] will not reverse unless the error adversely affects a substantial right of a party.” Tate v. State, 912 So.2d 919, 926 (¶ 16) (Miss.2005) (quotations omitted).

A. Rule ⅛0⅛

¶ 53. “Usually, evidence of another crime or prior bad act is not admissible.” Simmons v. State, 813 So.2d 710, 716 (¶ 30) (Miss.2002). Rule 404(b) enumerates certain exceptions to that general rule: evidence of other bad acts may be admissible for other purposes “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Another non-character purpose is to “tell the complete story so as not to confuse the jury.” Underwood v. State, 708 So.2d 18, 32 (¶ 41) (Miss.1998) (quotation omitted). Evidence of other bad acts is also admissible “where the offense charged and that offered to be proved are so interrelated as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences.” Id. (citation omitted).

¶ 54. Archer acknowledges this authority, but he nonetheless argues the jury did not need to hear that Betty and Claire had been raped. He contends the jury could instead have been instructed not to speculate why the other girls were present when Abby was raped. This argument is simply contrary to the law of this State. The prosecution has a “legitimate interest in telling a rational and coherent story of what happened.” Brown v. State, 483 So.2d 328, 330 (Miss.1986). The testimony of Betty and Claire’s rapes provided evidence of Archer’s motive and was needed for the jury to understand the girls’ demeanor on the stand and their reluctance to come forward.

¶ 55. Betty and Claire witnessed Abby being raped because they, too, were raped at the same time. This was simply too intertwined with the charges against Archer to be kept from the jury. We find no abuse of discretion in allowing their testimony.

B. Rule ⅛03

¶ 56. Archer contends, in the alternative, that Betty and Claire’s testimony was too prejudicial to be admitted under Rule 403, which states:

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.

Archer also faults the trial court for not making on-the-record findings under this rule.

¶ 57. All otherwise-admissible evidence must be filtered through Rule 403. Jones v. State, 920 So.2d 465, 476 (¶ 34) (Miss.2006). When the trial court admits other bad acts evidence under Rule 404(b), it should make an on-the-record Rule 403 finding that the probative value is not substantially outweighed by the danger of unfair prejudice. Tate, 912 So.2d at 926 (¶ 16). However, even in 404(b) cases, “our review depends on the evidence and not the judge, and while a judge’s on-the-record analysis is recommended as it serves to fortify the judge’s position for pui’poses of review, the lack of such analysis is harmless unless we deem the evidence to be patently prejudicial.” Jones, 920 So.2d at 476 (¶ 34). “It is inherent that nearly all evidence is prejudicial to a party in one way or another. The inquiry as it regards admissibility is whether that prejudice is unfair.” Abrams v. Marlin Firearms Co., 838 So.2d 975, 981 (¶ 22) (Miss.2003).

¶ 58. Archer’s allegation of unfair prejudice focuses on the necessity of defending against three allegations of sexual abuse when he was only on trial for one. He relies on Flowers v. State, 842 So.2d 531, 543 (¶ 35) (Miss.2003), where the supreme court reversed Flowers’s conviction for one murder after finding “a tactical scheme by the State to try Flowers for all four murders” committed during a single killing spree. The other murders were relevant, but the State “went too far” by introducing excessively detailed and often cumulative evidence relating to the other three victims. See id. at 543-550 (¶¶ 35-51). Evidence that went beyond what was necessary to tell the whole story of the killing spree was irrelevant under Rule 403. Id. at 550 (¶ 51).

¶ 59. In today’s case, we find that the prosecution did not introduce excessive evidence of the other rapes. Archer is correct that the prosecutor did occasionally lump the girls together in his closing arguments. For the most part, however, this was used for the legitimate purpose of explaining Archer’s motive for having sex with Abby in front of the other girls. The State did not go too far like it did in Flowers.

¶ 60. We find no abuse of discretion in the trial court’s admission of the other victims’ testimony.

6. Instruction on Unanimity

¶ 61. Archer argues that the trial court failed to instruct the jury that its verdict had to be unanimous. No objection was made on these grounds during the trial, nor was any additional instruction offered by Archer, perhaps because the court itself instructed the jury to that effect.

¶ 62. It is true that the verdict of the jury must be unanimous in a criminal trial, and the jury should be so instructed. See, e.g., Fulgham v. State, 46 So.3d 315, 324 (¶ 23) (Miss.2010). Reviewing all of the instructions given in this case, we are satisfied the jury was properly instructed. C-l instructed the jury that “[t]he verdict must represent the thoughtful judgment of each juror.... Each of you must decide this case for yourself.” It concluded: “All twelve of you must agree on a verdict before you can return it ... as the verdict of the jury.” C-2 stated that the jurors were not “to reveal to any person ... how the jury stands ... until after you have reached a unanimous verdict.” Moreover, the jury was polled after the verdict was read, and each juror confirmed that the verdict of the jury was his or her individual verdict.

¶ 63. This issue is both procedurally barred and without merit.

7. Merger; Double Jeopardy

¶ 64. Archer next contends that convictions for both fondling and statutory rape have essentially punished him twice for the same crime. For authority, he relies on Minor v. State, 62 So.3d 1002, 1004 (¶ 8) (Miss.Ct.App.2011), where this Court found that charges of sexual battery and gratification of lust merged when there was only proof of a single incident of touching by the defendant. This was required because it was “impossible ... for Minor to have committed sexual battery without also having committed the crime of gratification of lust.” Id. The Constitution does not allow multiple punishments for the same offense; “[a] conviction can withstand a double-jeopardy analysis only if each offense contains an element not contained in the other.” Id. at 1004-1005 (¶ 9). “[T]he test ... is whether each provision requires proof of a fact which the other does not.” Graves v. State, 969 So.2d 845, 847 (¶ 9) (Miss.2007) (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).

¶ 65. We need not address whether fondling and statutory rape merge because the charges did not stem from the same act or transaction. Abby testified that Archer touched her on the side of the road. He then drove to another, more secluded location, where he had sex with her. These are distinct acts separated by time and place. Moreover, there was evidence establishing several other instances of sexual intercourse during the time period alleged in the indictment.

¶ 66. Archer was not punished twice for the same act. This issue is without merit.

8. Ineffective Assistance of Counsel

¶ 67. Finally, Archer contends he received constitutionally ineffective assistance of counsel. He points only to trial counsel’s “failure to object to many of the errors alleged” that potentially waived issues for appeal. Archer does not provide further specificity or discussion.

¶ 68. Archer is represented by new counsel on appeal. Mississippi Rule of Appellate Procedure 22(b) provides:

Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record. Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings.

The comment to Rule 22(b) specifically states that “claims of ineffective assistance of counsel for failure to object to evidence offered by the state or to argument by the state must be raised on direct appeal.” Id. Such claims can be fully apparent from the trial record. See Conners v. State, 92 So.3d 676, 686 (¶ 23) (Miss.2012). Moreover, Archer has been represented by new counsel since shortly after his conviction, and his appellate counsel raised the same issues of ineffective assistance in Archer’s motion for a new trial, presenting him an opportunity to introduce supporting evidence into the trial record. Consequently we find Archer’s ineffective assistance of counsel claim fully apparent from the record and ripe for consideration on direct appeal.

¶ 69. To prove ineffective assistance of counsel, Archer must show that (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Id. at 689. “Defense counsel is presumed competent.” Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001). “[T]he defendant must overcome the presumption' that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (citations and quotations omitted).

¶ 70. “The failure of counsel to make certain objections may fall within the ambit of trial strategy, and therefore may not give rise to a claim for ineffective assistance of counsel.” Nix v. State, 8 So.3d 141, 144 (¶ 13) (Miss.2009). Given Archer’s cursory treatment of this issue, we find that he has failed to meet his burden under Strickland. This issue is without merit.

¶ 71. THE JUDGMENT OF THE LE-FLORE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, STATUTORY RAPE, AND SENTENCE OF TWENTY YEARS WITH SIXTEEN YEARS TO SERVE AND FOUR YEARS OF POST-RELEASE SUPERVISION; AND COUNT II, FONDLING, AND SENTENCE OF TWO YEARS; WITH THE SENTENCES TO BE SERVED CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LE-FLORE COUNTY.

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

      . This Court uses pseudonyms to protect the confidentiality of minors in sexual abuse cases.

      . It is not clear whether Betty and Claire are Archer’s natural children, but they testified he was regarded as a father or stepfather.

      . Immediately before the trial began, the prosecutor objected to Edwards and Little Ricky testifying, contending they were surprise witnesses. The objection was never ruled upon and appears to have been abandoned.

      . From elsewhere in the record, we know the investigator's full name is Wayne Miller, but it was not mentioned before the jury.


text:
    Gregory WILDER, a/k/a Gregory Okeith Wilder, Appellant, v. STATE of Mississippi, Appellee.
    No. 2011-KA-01244-COA.
    Court of Appeals of Mississippi.
    Nov. 6, 2012.
    Rehearing Denied April 9, 2013.
    Certiorari Denied July 18, 2013.

      Mollie Marie McMillin, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Gregory Wilder was convicted of murder in the Madison County Circuit Court. He appeals, challenging the sufficiency and weight of the evidence, asserting error in exclusion of the testimony of a potential defense witness, and claiming ineffective assistance of counsel. Finding that the verdict was supported by the evidence, that exclusion of the defense witness was within the trial court’s discretion, and that the record is insufficient to review Wilder’s ineffective-assistance-of-counsel claim, we affirm.

FACTS

¶ 2. Around midnight, Dequarius Luck-ett and Tarmarus Hudson got into a fist fight at the Kangaroo gas station in Canton. There was a large group of people gathered at the station, and when Luckett and Hudson began fighting, several other people joined in. One was Wilder. Others included Daniel Thomas and Daron Henry. The fight ended abruptly when Thomas was shot in the chest and killed by Wilder.

¶ 3. Thomas was attempting to stop the fight between Wilder and Henry when a shot was fired by someone, not identified in the record, and people began to scatter. Alexis Washington testified that Wilder shot Thomas after the fight had ended. Marketta Washington confirmed her sister’s version of events but did not see Wilder shoot Thomas. After hearing the second shot, Marketta turned to see Wilder pointing a gun down at Thomas, who was lying on the ground. Wilder said, “I told you to let me go,” and left the gas station.

¶ 4. Cedric Hartwell claimed that the three men, Wilder, Thomas, and Henry, were fighting at the time of the shooting. He heard Wilder call out for Thomas and Henry to stop hitting him. Henry agreed that he and Thomas were fighting Wilder but stated that they stopped after hearing the first gunshot. He did not see Wilder shoot Thomas but thought Wilder “probably shot backwards.”

¶ 5. Wilder testified that he only got involved to get his friend, Hudson, out of the fight. Wilder was attacked from behind, fell to the ground, and could not get up. Someone was hitting him in the head. Though he told his attacker to get off of him, the assault continued. After hearing the first gunshot, he could not take it anymore and pulled a gun out of his waistband. He fired over his shoulder to get his attacker off of his back. Wilder did not know who he was aiming at but was afraid he would get shot or badly beaten if he did not do something.

¶ 6. Though he left the scene, Wilder turned himself in to the Canton Police Department later that same day. His attorney provided police with Wilder’s pistol. Lieutenant Kelvin McKenzie testified that when Wilder was booked, he had no visible injuries other than a few scrapes on his knees.

¶ 7. Dr. Steven Hayne performed the autopsy and found that Thomas had no injuries on his body except for the gunshot wound that killed him. He stated that Thomas was shot from very close range and that the bullet traveled at a slightly downward angle in the body. After a three-day trial, the jury found Wilder guilty of murder, and the trial court denied his motion for a judgment notwithstanding the verdict.

DISCUSSION

1. Sufficiency of the Evidence

¶ 8. “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). If the evidence is of such quality and weight that “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 9. Wilder was convicted of murder under section 97-3-19(1) of the Mississippi Code Annotated (Rev.2006). Because he raised self-defense, it was the State’s burden to prove, beyond a reasonable doubt, that he did not act in necessary self-defense. See Heidel v. State, 587 So.2d 835, 843 (Miss.1991). The killing of a human being is justified when committed in the lawful defense of one’s own person where there is a reasonable ground to apprehend imminent and great personal injury. See Miss.Code Ann. § 97-3-15(l)(f) (Rev.2006). “A successful self-defense argument requires that the jury believe that it was objectively reasonable for the defendant to believe he was in danger of imminent death or serious bodily harm.” Livingston v. State, 943 So.2d 66, 71 (¶ 13) (Miss.Ct.App.2006). The question of whether the defendant acted in self-defense is a question for the jury to resolve. See Dubose v. State, 919 So.2d 5, 7 (¶ 11) (Miss.2005).

¶ 10. Considering the evidence in the light most favorable to the State, we find that there was sufficient evidence to convict Wilder of murder. Wilder admitted that he fired a gun without knowing at whom he was aiming. It is uncontested that he shot and killed Thomas, who was unarmed. Testimony conflicted as to whether the two men were involved in a physical fight before the shooting. There were no bruises or abrasions on Thomas aside from the gunshot wound, and Wilder’s only reported injuries were two scraped knees. The jury is the ultimate finder of fact “and is free to aecept or reject all or some of the testimony given by each witness.” Meshell v. State, 506 So.2d 989, 992 (Miss.1987). From the verdict, it is clear the jury rejected Wilder’s self-defense claim. Viewing the evidence in the light most favorable to the State, we find that a rational juror could have found that the State proved the essential elements of murder beyond a reasonable doubt.

¶ 11. Wilder argues that the evidence presented will only support a conviction of manslaughter and urges this Court to reverse and render his conviction. As we find that the verdict was supported by sufficient evidence, we find that Wilder’s argument lacks merit.

2. Weight of the Evidence

¶ 12. “When reviewing a denial of a motion for new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted). We will weigh the evidence in the light most favorable to the verdict. Id. (quoting Herring v. State, 691 So.2d 948, 957 (Miss.1997)). “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (citing Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)).

¶ 13. Viewing the evidence in the light most favorable to the verdict, we cannot say that an unconscionable injustice resulted from the jury’s verdict. Wilder argues that the State failed to prove that he did not act in necessary self-defense and points to his own testimony along with that of Henry and Hartwell to support his claims. However, the Washington sisters supplied conflicting testimony, and Dr. Hayne and Lieutenant McKenzie stated that neither Wilder nor Thomas had any bruising, cuts, or abrasions on their hands or faces. As we have pointed out, it was the jury’s province to weigh this evidence and determine if Wilder shot Thomas in self-defense. See Webster v. State, 817 So.2d 515, 519 (¶ 14) (Miss.2002). A factual question was created. This Court will not reweigh the facts or “go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Reeves v. State, 825 So.2d 77, 80 (¶ 8) (Miss.Ct.App.2002)(emphasis added). We find no basis for doubting the verdict.

3. Potential Defense Witness

¶ 14. Wilder argues that the trial judge erred in excluding the testimony of Brandon Robinson. On the second day of trial, defense counsel notified the judge and the State that Brandon Robinson was ready to testify as a witness for the defense. Robinson had not made himself known to defense counsel until after the first day of trial. However, Robinson contacted Wilder shortly after the shooting and offered to testify. Wilder failed to share this information with his attorney. After holding a bench conference, the trial judge excluded the witness and determined that Wilder’s failure to disclose Robinson was willful and motivated by a desire to obtain a tactical advantage.

¶ 15. The admission or suppression of evidence is reviewed for abuse of discretion. Miss. Transp. Comm’n. v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss.2003). We will affirm the trial court’s decision unless it was arbitrary and clearly erroneous. See Williams v. State, 54 So.3d 212, 213 (¶ 5) (Miss.2011). The circuit court may exclude evidence where discovery violations are willful or motivated by the desire to gain a tactical advantage. Coleman v. State, 749 So.2d 1003, 1007 (¶ 9) (Miss.1999).

¶ 16. Under Uniform Rule of Circuit and County Court 9.04, a defendant has a duty to promptly disclose the names and addresses of all witnesses to the prosecutor. In Morris v. State, 927 So.2d 744, 746-47 (¶¶ 7-9) (Miss.2006), the Mississippi Supreme Court affirmed a finding that a discovery violation was willful where the defendant gave the State a list of witnesses the morning trial began. Similarly, Wilder did not provide the State with Robinson’s name until the second day of trial. Wilder presented no reason for this delay. He had been working with the same attorney from the time he was arrested. He was out on bond before trial, and he knew shortly after the shooting that Robinson was a potential witness. Further, the trial judge found that Robinson’s testimony would be cumulative. The trial judge’s decision was neither arbitrary nor clearly erroneous. Therefore, we find that the trial court did not abuse its discretion in excluding Robinson’s testimony.

4. Ineffective Assistance of Counsel

¶ 17. Issues of ineffective assistance of counsel are generally not reviewed on direct appeal. See Shumaker v. State, 956 So.2d 1078, 1084 (¶ 10) (Miss.Ct.App.2007). This Court will reach the merits of an ineffective-assistance-of-counsel claim on direct appeal only when (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties have stipulated that the record is adequate to allow the appellate court to make a finding. See Read v. State, 430 So.2d 832, 841 (Miss.1983). When raised on direct appeal, this inquiry must be strictly confined to the record. See id.

¶ 18. Neither criterion has been satisfied in this case. Therefore, we dismiss Wilder’s claim of ineffective assistance of counsel without prejudice so that he may raise his claim in a properly filed motion for post-conviction relief, if he so chooses. See Franklin v. State, 72 So.3d 1129, 1140 (¶ 51) (Miss.Ct.App.2011).

¶ 19. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . This shot was not fired by Wilder. Only two casings were recovered from the scene, one from a .380 pistol and one from the 9mm pistol Wilder used to shoot Thomas.