author: WALLER, Chief Justice, for the Court: KING, Justice, COLEMAN, Justice,

text:
    Mark MATTHEWS a/k/a Mark David Mathews a/k/a Mark D. Mathews a/k/a Mark David Matthews a/k/a Mark Mathews v. CITY OF MADISON, Mississippi.
    No. 2012-CT-01528-SCT.
    Supreme Court of Mississippi.
    July 31, 2014.

      Chris N.K. Ganner, attorney for appellant.
    John Hedglin, attorney for appellee.
   ON WRIT OF CERTIORARI

WALLER, Chief Justice, for the Court:

. ¶ 1. Mark Matthews was convicted of simple assault and disorderly conduct in Madison County Municipal Court. The decision subsequently was affirmed on appeal by the County Court of Madison County and the Madison County Circuit Court. The Court of Appeals found no error and also affirmed. Matthews v. City of Madison, 143 So.3d 579, 582-83, 2013 WL 5184708, *2 (¶ 11) (Miss.Ct.App. Sept.17, 2013). While the result reached by the Court of Appeals is correct, we granted certiorari to clarify the proper burden of proof when the Castle Doctrine is asserted as a defense.

FACTS AND PROCEDURAL HISTORY

¶ 2. The following facts are taken from the Court of Appeals opinion:

¶ 2. Matthews and Brittany Sullivan had a daughter, Macy Kate, in 2008. Because they were not married, custody arrangements were established by a final judgment of filiation and support filed in Madison County Chancery Court, granting joint legal and physical custody to both parents. The custody agreement provided that Matthews had custody of Macy Kate on Wednesday nights and was to return her “the next morning at 7:30 a.m. or such time [that accommodated] both [parents’] travel to work.”
¶ 3. On the morning of Thursday, May 26, 2011, Matthews arrived at Brittany’s residence, which was also the residence of her mother, Pam Sullivan, to drop off Macy Kate. Matthews parked his vehicle at the curb, because he was required to park on the street and stay off the Sullivans’ property as a result of a trespassing conviction from a year earlier. Pam exited the house, and Matthews asked Pam where Brittany was. Pam testified that she told him that Brittany had spent the night at her grandparents’ house because she did not want to see Matthews. Pam walked to the rear passenger door of the vehicle and opened it to unbuckle Macy Kate from her car seat. Matthews, who had exited the vehicle, slammed the door on Pam, pinning her in the door. After a struggle, Pam freed herself from the door, removed Macy Kate, and walked onto her property, where Matthews was not allowed to go....
¶ 5. Pam filed an affidavit against Matthews for assault. Matthews was convicted of simple assault and disorderly conduct in the City of Madison Municipal Court.
¶ 6. Matthews appealed to the County Court of Madison County. After a bench trial de novo, Matthews was found guilty of simple assault under Mississippi Code Annotated section 97-3-7(l)(a) (Rev. 2006) and disorderly conduct for refusing to comply with a police officer’s request under Mississippi Code Annotated section 97-35-7(1) (Rev. 2006).

Matthews v. City of Madison, 143 So.3d 579, 581-82, 2013 WL 5184708, *1-2 (Miss.Ct.App. Sept.17, 2013).

¶ 3. The Madison County Circuit Court affirmed the county court and found, in part, that the Castle Doctrine did not apply, therefore, Matthews was not entitled to the statutory presumption. On appeal to the Court of Appeals, Matthews argued that the county court had erred because it had failed to apply the Castle Doctrine. Id. at 582-83, 2013 WL 5184708, at *2. Specifically, Matthews asserted “that under the Castle Doctrine, the assault was justified to prevent Pam from kidnaping his child.” Id. The Court of Appeals stated that “[t]he statute requires that the ‘person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm....’” Id. (quoting Miss.Code Ann. § 97-3-15(3) (Rev. 2006)). “No evidence was presented that Matthews had feared imminent death or great bodily harm to himself or Macy Kate.” Id. at 583, 2013 WL 5184708, at *2. Therefore, the Court of Appeals found the county court did not err in refusing to apply the doctrine. Id. at 583-84, 2013 WL 5184708, at *3.

DISCUSSION

¶ 4. When reviewing the findings of a county-court judge sitting in a bench trial without a jury, we will reverse only if his or her findings are manifestly in error or clearly wrong. Pride Oil Co., Inc. v. Tommy Brooks Oil Co., 761 So.2d 187, 193 (Miss.2000) (quoting Amerson v. State, 648 So.2d 58, 60 (Miss.1994)). “The trial judge has sole authority to determine the credibility of a witness when sitting as the trier of fact in a bench trial.” Pride Oil Co., 761 So.2d at 193. We will affirm a trial judge sitting without a jury on a question of fact unless substantial evidence shows the trial judge was manifestly wrong. Id.

¶ 5. In his petition for certiorari, Matthews argues the Court of Appeals findings regarding the application of the Castle Doctrine are in conflict with this Court’s prior decisions. Matthews states that the statute’s presumption justifying defensive force has no requirement for proof that he be in “reasonable fear” before using defensive force. See, e.g., Newell v. State, 49 So.3d 66, 68-69 (Miss.2010).

¶ 6. The City of Madison argued in its supplemental brief that the Castle Doctrine does not apply to this case because it deals with “justifiable homicide.” Whether the Castle Doctrine may be applied as a defense to a charge of simple assault is a matter of first impression for this Court. The Legislature adopted the Castle Doctrine in 2006, and it was codified at Mississippi Code Section 97 — 3—15(3)—(4), See Miss. Laws 2006, Ch. 492, § 1 (eff. July 1, 2006). Since the passage of the law, we have had the occasion to interpret the Castle Doctrine only when deadly force was used. See White v. State, 127 So.3d 170 (Miss.2013); Sanders v. State, 77 So.3d 484 (Miss.2012); Maye v. State, 49 So.3d 1124 (Miss.2010); Newell v. State, 49 So.3d 66 (Miss.2010). Interpreting the doctrine for the first time, this Court stated that there are two prongs to Mississippi’s Castle Doctrine. See Newell, 49 So.3d at 74. In the case before us, subsection (4) does not apply because it deals with the use of “deadly force under subsection (l)(e) or (f).... ” Miss.Code Ann. § 97-3-15(4) (Rev. 2006).

¶ 7. The other prong requires the trier of fact to look to the circumstances listed in subsection (3), which states in pertinent part that an individual “who uses defensive force shall be presumed to have reasonably feared ... the commission of a felony upon him ... against a vehicle which he was occupying ... if the person against whom the defensive force was used, was in the process of forcibly entering ... [an] occupied vehicle.... ” Miss.Code Ann. § 97-3-15(3) (Rev. 2006) (emphasis added). Thus, the presumption in subsection (3) applies to any use of defensive force if it is under one of the circumstances listed in that subsection, not only deadly force.

¶ 8. Matthews argues that the felony being committed was kidnapping; he was in a place he had a right to be and was not the initial aggressor and was not engaged in any unlawful acts; therefore, the lower court should have applied the statutory presumption to justify Matthews’s reaction. The Court of Appeals found the presumption did not apply to Matthews because there was no evidence that Matthews was in fear of imminent death or great bodily harm to him or Macy Kate. Matthews, 143 So.3d at 582-84, 2013 WL 5184708, at ⅝2-3. The language used by the Court of Appeals is in error. We find the application of the presumption does not depend on the existence of reasonable fear in the defendant; rather, the presumption applies if one of the circumstances in subsection (3) is met. See Newell v. State, 49 So.3d 66 (Miss.2010).

¶ 9. In Newell, this Court found the defendant was entitled to a jury instruction on the Castle Doctrine’s statutory presumption. Newell, 49 So.3d at 78. There, Newell claimed that he had shot the victim after the victim threatened him, tried to remove him from his truck, threatened to stab him, and then reached for a knife. Id. at 68-69. In interpreting Section 97-3-15(3), we found that, if the occupant of a vehicle is still in danger after exiting the vehicle and is “still in the immediate premises thereof, he should be allowed to use reasonable force to defend against the danger and still be presumed to have acted in reasonable fear of imminent death or great bodily danger.” Id. at 76-77. This Court held further that, if the trier of fact believed Newell’s story of the circumstances that led to the shooting, “he would have been entitled to the presumption in Section 97-3-15(3).” Id. at 77.

¶ 10. The in Newell was then faced with the task of deciding whether a jury instruction that was denied properly defined the statutory presumption in Section 97-3-15(3). Id. The Court found that the second paragraph of the proposed instruction properly tracked the language of the Castle Doctrine’s new presumption. Id. In so finding, the Court held that “the jury should have been instructed that, if it believed Newell’s version of the events surrounding the altercation ... then it should presume that Newell used defensive force ... because he reasonably feared ... the commission of a felony upon ... the vehicle which he was occupying.” Id. at 78 (quoting Miss.Code Ann. § 97-3-15(3) (Rev. 2006)) (emphasis added). Importantly, the Court went on to note that, if the jury had been instructed properly, “the jury may have come to a different conclusion regarding the reasonableness and necessity of Newell’s action ... which would have given more weight to [his] self-defense claims.” Id. (emphasis added). Thus, the holding implies that, although Newell should have been entitled to a presumption if the jury believed him, this presumption could have been rebutted, as the trier of fact must still weigh the reasonableness of the action in light of the presumption.

¶ 11. The Matthews/Pam altercation before us obviously differs from Newell. We find the Castle Doctrine defense does not apply to the facts presented here. The Final Judgment entered by the chancery court, which set out Matthews’s and Brittany’s obligations regarding child support, custody, and visitation, stated that on Wednesdays, Mark was to pick up his daughter “from day care or Brittany’s place of residence” and return her the next morning. The chancery court’s order stated Brittany’s place of residence was Pam’s home. Pam testified that she had Brittany’s permission to get the child and that this had occurred on multiple occasions. She alleged that she approached the car, opened the door to take the child following Matthews’s scheduled visitation, and this is when the incident occurred. Pam was within her right, as the county-court judge found, to retrieve Macy Kate from Matthew’s car. Thus, under these facts, the trial court did not abuse its discretion in finding Matthews guilty of simple assault.

¶ 12. The trial-court judge, as trier of fact, noted on the record that he found Pam’s testimony to be more credible than Matthews’s, and that, based on the evidence, “the State has proven beyond a reasonable doubt” that Matthews committed simple assault upon Pam. We do not find any abuse of discretion on the part of the trial judge. Matthews is correct, insofar as the Court of Appeals’ language incorrectly states that the Castle Doctrine’s presumption justifying defensive force requires proof that he be in “reasonable fear” before using defensive force. This Court finds that Matthews was not entitled to the presumption.

CONCLUSION

¶ 13. We find that the result reached by the Court of Appeals and the trial court is correct. However, we write only to correct the language used in the Court of Appeals opinion and to clarify the proper burden of proof when a defendant asserts the Castle Doctrine as a defense. The judgments of the Court of Appeals and the Madison County Circuit Court are affirmed.

If 14. CONVICTION OF SIMPLE ASSAULT AND SENTENCE OF 180 DAYS, WITH THIRTY (30) DAYS TO SERVE AND 150 DAYS SUSPENDED FOR TWO (2) YEARS, WITH CONDITIONS, AND PAY A FINE OF $190, AFFIRMED. CONVICTION OF DISORDERLY CONDUCT AND SENTENCE OF 180 DAYS, WITH FIVE (5) DAYS TO SERVE AND 175 DAYS SUSPENDED FOR TWO (2) YEARS, WITH CONDITIONS, AND PAY A FINE OF $160, AFFIRMED. SENTENCES SHALL RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE SHERIFF OF MADISON COUNTY.

DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS AND CHANDLER, JJ. COLEMAN, J„ CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION. RANDOLPH, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

KING, Justice,

specially concurring:

¶ 15. I agree that Matthews’s convictions should be affirmed; however, I write separately to address this Court’s critique of the Court of Appeals’s discussion of the presumption available to a defendant under the “Castle Doctrine,” as codified in Mississippi Code Section 97-3-15. Miss. Code Ann. § 97-3-15(3) (Rev. 2008). The language in the Court of Appeals opinion that is criticized by the majority states: “The statute requires that the ‘person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm....’ No evidence was presented that Matthews feared imminent death or great bodily harm to himself or to Macy Kate. Therefore, the county court did not err in refusing to apply the castle doctrine, as there was not sufficient evidence to support the doctrine’s application.” Matthews v. City of Madison, 143 So.3d 579, 583, 2013 WL 5184708, at *2 (¶ 11) (Miss.Ct.App.2013) (emphasis added) (internal citations omitted).

¶ 16. When the Court of Appeals’ language is read in conjunction with Matthews’s trial testimony, and the language taken in the context of that testimony, it becomes clear that what the Court of Appeals intended to address was the burden of proof to obtain the presumption of the “Castle Doctrine.” I agree with the majority that the emphasized language taken in a vacuum is misleading; however, I am concerned that the majority’s critique of that language is also misleading. While the majority correctly confronts the issue that the “Castle Doctrine” only applies when one of the circumstances of Section 97-3-15(3) is met, the majority fails to address the initial burden of proof for application of the presumption arising from the “Castle Doctrine.” As a result of that failure by the majority, one might conclude that no burden of proof is associated with the application of that presumption. In fact, that failure by the majority would seem to suggest that application of the presumption arising under the “Castle Doctrine” is the product of legal abiogen-esis.

¶ 17. As with any presumption, the party seeking to avail himself of that presumption bears the burden of proving its applicability. See Strong v. State, 600 So.2d 199, 203 (Miss.1992). Section 97-3-15(3) provides that “[a] person who uses defensive force shall be” entitled to the Castle Doctrine presumption if the defensive force was employed in one of the circumstances outlined. Miss.Code Ann. § 97-3-15(3) (Rev. 2008) (emphasis added). Thus, before examining whether one of the circumstances in subsection (3) is met, the initial inquiry must be whether the person adequately proved he was using defensive force. In the present case, it was consequently Matthews’s initial burden to prove that he used defensive force, and then that he used such defensive force in a circumstance covered by the “Castle Doctrine.” The trial judge, sitting as the trier of fact, found that Matthews failed to meet his burden of proof, as he failed to put forth evidence that the force he used was defensive. While not stated with clarity, I believe that this is the same conclusion reached by the Court of Appeals. Thus, I write separately to clarify that a defendant must initially show that he was using defensive force to avail himself of the “Castle Doctrine.”

DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS AND CHANDLER, JJ„ JOIN THIS OPINION.

COLEMAN, Justice,

concurring in result only:

¶ 18. I agree with the result reached by the majority, but, with respect, I disagree with its reasoning. Based on the plain, unambiguous language of Mississippi Code Section 97-3-15, I am compelled to conclude that the Castle Doctrine applies only when a killing of a human being has occurred. I fear the majority expands the Castle Doctrine beyond the scope designated by the Legislature and therefore leads the Court beyond the scope of its constitutionally designated duty as an appellate court. “[T]he courts are without the right to substitute their judgment for that of the Legislature as to the wisdom and policy of the act and must enforce it, unless it appears beyond all reasonable doubt to violate the Constitution.” 5K Farms, Inc. v. Miss. Dep’t of Revenue, 94 So.3d 221, 227 (¶ 21) (Miss.2012) (quoting Pathfinder Coach Div. of Superior Coach Carp. v. Cottrell, 216 Miss. 358, 362, 62 So.2d 383, 385 (1953)).

¶ 19. Section 97-3-15 defines instances in which the killing of a human being is justified. It reads, quite simply, “The killing of a human being by the act, procurement or omission of another shall be justifiable in. the following cases ...” and then enumerates eight instances in which a killing is justified. Miss.Code Ann. § 97-3-15(1) (Rev. 2006). Two of the eight, found in subsections (l)(e) and (l)(f), read as follows:

(e) When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling, in any occupied vehicle, in any place of business, in any place of employment or in the immediate premises thereof in which such person shall be;
(f) When committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished; ....

Miss.Code Ann. § 97-3-15(l)(e), (f) (Rev. 2006). Accordingly, a killing is justified when committed under conditions consistent with those I quote above. Nothing in the statute appears to extend the justification to any other crime or event other than the killing of a human being.

¶ 20. I now turn to Section 97-3-15(3), wherein the Legislature codified what is popularly known as the Castle Doctrine, and which the majority would extend beyond the parameters of a justified killing. See Lawson v. Honeywell Int’l, Inc., 75 So.3d 1024, 1030 (¶ 17) (Miss.2011) (“This Court ‘cannot ... add to the plain meaning of the statute or presume that the legislature failed to state something other than what was plainly stated.’ ”) (quoting His Way Homes, Inc. v. Miss. Gaming Comm’n, 733 So.2d 764, 769 (¶ 20) (Miss.1999)). In the first six words, Subsection 3 creates a presumption in favor of a “person” who “uses defensive force.” So far, nothing in the subsection by itself appears to limit the presumption to a person who has killed another, but the codification of the Castle Doctrine neither ends there nor exists in a vacuum. The presumption in question is that the person who uses defensive force is presumed to have

reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling, or against a vehicle which he was occupying, or against his business or place of employment or the immediate premises of such business or place of employment, if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle, business, place of employment or the immediate premises thereof or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person’s will from that dwelling, occupied vehicle, business, place of employment or the immediate premises thereof and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred.

Miss.Code Ann. § 97-3-15(3) (Rev. 2006).

¶ 21. The events listed in Subsection 3, quoted immediately above, that the person using force is presumed reasonably to have feared are the very same events listed in Subsection (l)(e) that justify the killing of another human being but that justify nothing else, at least not by operation of Section 97-3-15. “This Court follows the long-standing maxim of statutory construction that ‘the Legislature’s intention must be determined by the total language of the statute and not from a segment considered apart from the remainder!)]’ ” Lawson, 75 So.3d at 1029 (¶ 15) (quoting Manufab, Inc. v. Miss. State Tax Comm’n, 808 So.2d 947, 949 (¶ 5) (Miss.2002)). Because of the choice of the Legislature to so closely tie the circumstances that trigger the presumption to the circumstances that justify a killing, I cannot agree with the majority’s conclusion that they have application where no killing occurred. “The Court looks to the whole of a statute to avoid adhering to one sentence or phrase of statute in a way that skews its true meaning.” Lawson, 75 So.3d at 1029 (¶ 15). Also, “[i]n interpreting any part of a statute this Court will first look to the statute as a whole to ensure its meaning is not taken out of context.” 32 Pitt Bulldogs and Other Prop. v. County of Prentiss, 808 So.2d 971, 974 (¶13) (Miss.2002). With respect, I am of the opinion that the majority reaches its conclusion by focusing too closely on Subsection 3 to the exclusion of the remainder of the statute and thereby takes the meaning of Subsection 3 out of the context in which the Legislature chose to place it. See also Kerr-McGee Chem. Corp. v. Buelow, 670 So.2d 12, 17 (Miss.1995) (“When interpreting a statute, ‘[t]he proper way to determine the real intent of the legislature is to study the words used by it in context.’”) (quoting Back-Acres Country Club, Inc. v. Miss. State Tax Comm’n, 216 So.2d 531, 534 (Miss.1968)).

¶22. Accordingly, where the majority holds the Castle Doctrine does not apply because Pam had permission to enter Mark’s car and take Macy Kate, I would hold the Castle Doctrine does not apply because no killing of a human being occurred.

      . Subsection (1) and (2) of Section 97-3-15 deal with the ‘‘killing of a human being” and are inapplicable to the case sub judice. As discussed infra, subsection (4) is inapplicable because it relates to the "use of deadly force under subsection (l)(e) or (f).“ In addition, subsection (5) is inapplicable because it deals with civil cases. See Miss.Code Ann. § 97-3-15 (Rev. 2006).

      . We note that Matthews’s argument is misplaced in that he quotes the language in subsection (4) regarding who was the initial aggressor and whether he or she was engaged in unlawful activity. See supra note 1.


source: Caselaw Access Project

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

license: Public Domain

text:
    Mark MATTHEWS a/k/a Mark David Mathews a/k/a Mark D. Mathews a/k/a Mark David Matthews a/k/a Mark Mathews, Appellant v. CITY OF MADISON, Mississippi, Appellee.
    No. 2012-KM-01528-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.
    Rehearing Denied Dec. 10, 2013.

      Chris N.K. Ganner, attorney for appellant.
    John Hedglin, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   LEE, C.J., for the Court:

¶ 1. This appeal arises from Mark Matthews’s convictions of simple assault and disorderly conduct in Madison County Municipal Court. Matthews appealed to the County Court of Madison County. After a bench trial de novo, Matthews was again convicted of simple assault and disorderly conduct. He then appealed to the Madison County Circuit Court, which affirmed the conviction. This appeal followed.

FACTS AND PROCEDURAL HISTORY

¶ 2. Matthews and Brittany Sullivan had a daughter, Macy Kate, in 2008. Because they were not married, custody arrangements were established by a final judgment of filiation and support filed in Madison County Chancery Court, granting joint legal and physical custody to both parents. The custody agreement provided that Matthews had custody of Macy Kate on Wednesday nights and was to return her “the next morning at 7:30 a.m. or such time [that accommodated] both [parents’] travel to work.”

¶ 3. On the morning of Thursday, May 26, 2011, Matthews arrived at Brittany’s residence, which was also the residence of her mother, Pam Sullivan, to drop off Macy Kate. Matthews parked his vehicle at the curb, because he was required to park on the street and stay off the Sulli-vans’ property as a result of a trespassing conviction from a year earlier. Pam exited the house, and Matthews asked Pam where Brittany was. Pam testified that she told him that Brittany had spent the night at her grandparents’ house. Pam walked to the rear passenger door of the vehicle and opened it to unbuckle Macy Kate from her car seat. Matthews, who had exited the vehicle, slammed the door on Pam, pinning her in the door. After a struggle, Pam freed herself from the door, removed Macy Kate, and walked onto her property, where Matthews was not allowed to go.

¶4. Pam called Madison Police Officer Mike Brown, who lived across the street. Matthews called the Madison police and reported that there had been domestic violence. Officer Brown arrived to the Sulli-vans’ property, and shortly thereafter, Madison Police Officer Ryan Wigley arrived. Officer Wigley approached Pam to begin his investigation; then, Matthews approached Officers Brown and Wigley and Pam. Officer Wigley ordered Matthews to return to his vehicle. While returning to his vehicle, Matthews began making a phone call on his cell phone. Officer Wigley ordered Matthews to not use his phone. Matthews responded that Officer Wigley could not prevent him from using his phone. Officer Wigley testified that he instructed Matthews not to use his cell phone as a safety precaution, as he did not know who Matthews was calling or why Matthews was making the phone call. As a result of Matthews’s refusal to stop using his cell phone, Officer Wigley arrested him for disorderly conduct.

¶ 5. Pam filed an affidavit against Matthews for assault. Matthews was convicted of simple assault and disorderly conduct in the City of Madison Municipal Court.

¶ 6. Matthews appealed to the County Court of Madison County. After a bench trial de novo, Matthews was found guilty of simple assault under Mississippi Code Annotated section 97-3-7(l)(a) (Rev.2006) and disorderly conduct for refusing to comply with a police officer’s request under Mississippi Code Annotated section 97-35-7(1) (Rev.2006). For the assault count, Matthews was sentenced to 180 days in the custody of the Sheriff of Madison County, with 150 days suspended. And for the disorderly-conduct count, he was sentenced to 180 days in the custody of the Sheriff of Madison County, with 175 days suspended. Both sentences were on the condition that Matthews complete an anger-management course and two years of unsupervised probation. Matthews’s sentences were ordered to run consecutively to each other and consecutively to any other sentence he was serving or may be required to serve in the future on other charges. In addition, Matthews was ordered to pay a $190 fine for the assault count, a $160 fine for the disorderly-conduct count, and all court costs and fees.

¶ 7. Matthews appealed to the Madison County Circuit Court, arguing (1) there was insufficient proof of simple assault, and the county court erred by failing to apply the castle doctrine; (2) there was insufficient evidence of disorderly conduct; (3) the weight of the evidence failed to support either conviction; and (4) the county court erred in excluding defense evidence. The circuit court affirmed the county court’s conviction. Matthews appealed to this Court, raising the same four issues that were raised in the circuit court.

DISCUSSION

I. ASSAULT

¶ 8. For the City of Madison (City) to prove that Matthews committed simple assault, it was required to show that he: “(a) attempted] to cause or purposely, knowingly!,] or recklessly eause[d] bodily injury to [Pam]; (b) negligently cause[d] bodily injury to [Pam] with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempted] by physical menace to put [Pam] in fear of imminent serious bodily harm.... ” Miss. Code Ann. § 97-3-7(l)(a).

A. Sufficiency of the Evidence

¶ 9. Matthews asserts that the county court should have sustained his motion for a directed verdict or a judgment of acquittal notwithstanding the verdict (JNOV), and that the evidence was not sufficient to convict him for assault.

¶ 10. This Court reviews a denial of a motion for a directed verdict and a denial of a JNOV under the same standard of review. Grihim v. State, 760 So.2d 865, 866 (¶ 6) (Miss.Ct.App.2000). “Appeals from [the denial of a] motion for [a] JNOV or directed verdict necessarily invoke a challenge to the sufficiency of the evidence.” Id. By moving for a JNOV, the defendant challenges the sufficiency of the evidence and asks “the court to hold, as a matter of law, that the verdict may not stand.” Tait v. State, 669 So.2d 85, 88 (Miss.1996) (citing May v. State, 460 So.2d 778, 780-81 (Miss.1984)). Then, the trial court “must consider all of the evidence— not just the evidence which supports the State’s case — in the light most favorable to the State.” May, 460 So.2d at 781. “[T]his Court will reverse and render only if the facts and inferences point in favor of the defendant on any element of the offense with sufficient force that [a] reasonable [finder of fact] could not have found beyond a reasonable doubt that the defendant was guilty[.]” Hughes v. State, 983 So.2d 270, 275-76 (¶ 10) (Miss.2008) (quoting Brown v. State, 965 So.2d 1023, 1030 (¶ 25) (Miss.2007)) (quotations omitted). “When reviewing the decision of a trial judge sitting without a jury, we give the judge ‘the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.’ ” Beal v. State, 958 So.2d 254, 256 (¶ 6) (Miss.Ct.App.2007) (quoting Johns v. State, 926 So.2d 188, 202 (¶ 70) (Miss.2006)).

¶ 11. Matthews does not argue that he did not assault Pam; however, he asserts that under the castle doctrine, the assault was justified to prevent Pam from kidnapping his child. Mississippi Code Annotated section 97-3-15(3) (Rev.2006) provides a defense for a person who uses force against another committing a felony upon him or another “if the person against whom the defensive force was used[ ] was in the process of unlawfully and forcibly entering ... [an] occupied vehicle.... ” Matthews argues that the felony Pam was committing was kidnapping. The statute requires that the “person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm.... ” Miss.Code Ann. § 97-3-15(3). No evidence was presented that Matthews feared imminent death or great bodily harm to himself or to Macy Kate. Therefore, the county court did not err in refusing to apply the castle doctrine, as there was not sufficient evidence to support the doctrine’s application.

¶ 12. Both Matthews and Pam testified that Matthews pinned Pam in the door of his vehicle. Pam testified that she called out in pain several times. Pam also testified that she had bruises as a result of the incident. Viewing the evidence in the light most favorable to the City, none of the “facts and inferences point in favor of [Matthews] on any element of the offense -” Hughes, 983 So.2d at 275 (¶ 10) (internal quotations omitted). This issue is without merit.

B. Weight of the Evidence

¶ 13. When a party raises an objection to the verdict based on the weight of the evidence, this Court views the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). The verdict will only be disturbed “when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Amiker v. Drugs for Less Inc., 796 So.2d 942, 947 (¶ 18) (Miss. 2000).

¶ 14. Matthews argues that the overwhelming weight of the evidence does not support the verdict for simple assault. Relying on Reynolds v. State, 818 So.2d 1287 (Miss.Ct.App.2002), Matthews argues that there must be proof of bodily injury. In Reynolds, the arresting officer stated that while being arrested, “Reyonolds swung at him with a closed fist and landed ... ‘a glancing blow.’ ” Id. at 1288 (¶ 2). However, the officer never testified that he felt pain from the blow or that he was injured in any way. Id. In fact, “[o]n direct examination by the prosecuting attorney, the officer said only that ‘it was just a glancing blow. No major injuries. I had no bruising.’” Id. The Reynolds Court, citing Murrell v. State, 655 So.2d 881, 883 (Miss.1995), noted that “the State must prove that the victim suffered bodily injury.” Reynolds, 818 So.2d at 1288 (¶ 3). Finding Murrell controlling, the Court stated, “Even a glancing blow with a fist is capable of producing pain, but, as the Murrell court pointed out, ‘either the officer suffered pain or he did not and it is a simple task to ask him.’ ” Id. (quoting Murrell, 655 So.2d at 885).

¶ 15. Here, Pam testified that she screamed out in pain while being pinned in the door and that she told Matthews that he had hurt her. She also stated that she had bruises on her shoulder and down the side of her arm and had the skin scraped off her finger. There was ample testimony presented that Pam had suffered bodily injury, as required by Murrell, 655 So.2d at 883, and Reynolds, 818 So.2d at 1288 (¶ 3).

¶ 16. Viewing the evidence in the light most favorable to the verdict, it cannot be said that allowing the guilty verdict to stand would be an unconscionable injustice. This issue is without merit.

II. DISORDERLY CONDUCT

¶ 17. Under section 97 — 35—7(l)(i), Matthews was guilty of disorderly conduct if the City proved that, with intent to breach the peace, he “fail[ed] or refuse[d] to promptly comply with or obey a request, command, or order of a law enforcement officer, having the authority to then and there arrest any person for a violation of the law....” While the subsection of the statute with which Matthews was charged was never stated, it was clear from the police report and the testimony by Officer Wigley that the City was attempting to prove disorderly conduct under subsection (l)(i), which states a person’s conduct is disorderly if he “refrain[ed] from acting or doing as ordered, requested or commanded by said officer to avoid any breach of the peace....”

A. Sufficiency of the Evidence

¶ 18. As stated above, this Court will consider all of the evidence “in the light most favorable to the State,” and “will reverse and render only if the facts and inferences point in favor of the defendant on any element of the offense with sufficient force that [a] reasonable [finder of fact] could not have found beyond a reasonable doubt that the defendant was guilty[.]” May, 460 So.2d at 781; Hughes, 983 So.2d at 275-76 (¶ 10) (citations and quotations omitted).

¶ 19. Officer Wigley stated that he responded to the call. He began his investigation by interviewing Pam. As Matthews approached, Officer Wigley instructed him to return to his car and to refrain from using his cell phone. Although Matthews began to return to his car, Matthews testified that he refused to refrain from using his cell phone. When he failed to comply with Officer Wiglets order, he was arrested. From the evidence presented, a reasonable finder of fact could have found beyond a reasonable doubt that Matthews was guilty of disorderly conduct. This issue is without merit.

B. Weight of the Evidence

¶ 20. On appeal, Matthews contends that the weight of the evidence does not establish the disobeying of a reasonable command during a breach of the peace. Officer Wigley testified that he instructed Matthews not to use his cell phone for the officers’ safety and for the safety of everyone at the scene. When Matthews failed to comply, Officer Wigley stated, he arrested Matthews “for officer safety and the safety of everyone there.”

¶ 21. Viewing the evidence in the light most favorable to the verdict, it cannot be said that allowing the guilty verdict to stand would be an unconscionable injustice. ' Therefore, this issue is without merit.

III. EXCLUSION OF EVIDENCE

¶ 22. Matthews asserts that the trial court erred in excluding a copy of the Madison Police Department dispatch report of the incident. The trial court sustained the City’s objection that Matthews had not disclosed the report through reciprocal discovery. Matthews argues that because the City had originally provided that document, he did not perceive a duty to “re-disclose it.” On appeal, the circuit court found this to be harmless error.

¶ 23. When reviewing the admissibility of evidence, this Court will only reverse “when an abuse of discretion resulting in prejudice to the accused occurs.” Hayes v. State, 803 So.2d 473, 475 (¶4) (Miss.Ct.App.2001) (quoting Clemons v. State, 732 So.2d 883, 887-88 (¶ 18) (Miss.1999)).

-¶ 24. Uniform Rule of Circuit and County Court 9.04(1) states that if a party fails to timely disclose evidence and the opposing party object's, the trial court can proceed in three ways:

(1) the court can allow the surprised party a reasonable opportunity to examine the newly produced evidence;
(2) if after the surprised party reviews the new evidence, the party claims unfair surprise and “seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary ■ for the defense to meet the non-disclosed evidence or grant a mistrial”; or
(3) the party can withdraw the evidence.

URCCC 9.04.

¶ 25. When Rule 9.04 is violated, the error is considered harmless “unless it affirmatively appears from the entire record that the violation caused a miscarriage of justice.” Payton v. State, 897 So.2d 921, 942 (¶ 67) (Miss.2003) (internal citations omitted). Although the trial court’s exclusion of the police report was a violation of Rule 9.04, the error is harmless because Matthews testified to the contents of the report. It cannot be said that the exclusion of the police report caused a miscarriage of justice. This issue is without merit.

¶ 26. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SIMPLE ASSAULT, AND SENTENCE OF 180 DAYS, WITH THIRTY DAYS TO SERVE AND 150 DAYS SUSPENDED FOR TWO YEARS, AND TO PAY A FINE OF $190; AND COUNT II, DISORDERLY CONDUCT, AND SENTENCE OF 180 DAYS, WITH FIVE DAYS TO SERVE AND 175 DAYS SUSPENDED FOR TWO YEARS, AND TO PAY A FINE OF $160, WITH THE SENTENCES IN COUNTS I AND II TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE SHERIFF OF MADISON COUNTY, MISSISSIPPI, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. BARNES AND MAXWELL, JJ., CONCUR IN PART AND IN THE RESULT. IRVING, P.J., AND JAMES, J., CONCUR IN PART AND DISSENT IN PART.


author: CARLTON, J„ for the Court:

text:
    Daniel F. BARBER, Jr. a/k/a Daniel F. Barber a/k/a Daniel Barber a/k/a Daniel Barber, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00903-COA.
    Court of Appeals of Mississippi.
    Oct. 22, 2013.
    Rehearing Denied May 6, 2014.
    Certiorari Denied July 31, 2014.

      Office of State Public Defender by Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   CARLTON, J„ for the Court:

¶ 1. Daniel F. Barber Jr. was convicted of murder and sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). On appeal, Barber argues a new trial is warranted because (1) the prosecutor presented evidence of crimes not before the jury; (2) a police officer, who was not an expert on ballistics, was allowed to testify about bullet trajectory; (3) the verdict was against the weight of the evidence; (4) the trial court abused its discretion in admitting or excluding certain evidence; (5) the prosecutor asked leading questions meant to elicit inadmissible or false testimony; and (6) his trial and appellate counsel were ineffective. Finding no error, we affirm.

FACTS

¶2. On December 20, 2007, the Pearl Police Department responded to reports of gunfire on Boston Road in Pearl, Mississippi. When officers arrived, Patrick Spears, Barber’s cousin, was found lying in the road, with gunshot wounds to his face and chest. Spears was transported to the hospital, where he died. Police searched Spears’s pockets, looking for identification. None was found, but a straw and a small bag filled with a cocaine-like substance were discovered. Police detained two witnesses: Jonathan Hopson and his girlfriend, Aisha Walker, both seventeen years old.

¶ 3. Hopson testified that he and Walker had asked Spears for a ride from Pearl to Jackson, Mississippi, the day of the murder. Spears agreed, but said he first needed to go “through Pearson,” which is also in Pearl. Spears drove a short distance to Boston Road, where the three encountered Barber walking in the road. Spears, Hopson, and Barber are cousins, but Hopson and Barber had not expected to see Spears that day. Hopson testified that Barber waived them down in the road, and Spears stopped the car. When Barber approached the driver’s side window, Barber quietly looked into the car, then hit Spears in the face. Spears got out of the car, and Walker, who was sitting in the back seat, followed in an attempt to discourage Spears and Barber from fighting. Hopson testified that he had known Barber all his life, and Barber’s behavior was not “normal,” but rather it seemed “like he was on something.” Walker also noticed that Barber “had a crazy look on his face.” Walker testified that after Spears exited the car, Barber immediately “pulled a gun out and shot [Spears] like four or five times.” When the first gunshot rang out, Hopson, who was still sitting in the front passenger seat of the car, jumped behind the wheel and drove away. Hopson testified he fled out of fear that Barber would shoot him next. Hopson drove around the block and returned within a few minutes. Walker remained at the scene, where she and a neighbor contacted police. Both Walker and Hopson testified that Spears was unarmed, and police found no weapon at the crime scene.

¶4. Barber gave a different version of the events surrounding the shooting. According to Barber, Spears drove up to him, yelling obscenities from the car window. Spears then stopped the car and told Barber to come closer. When Barber approached the car, Spears reached out the window and shoved him. Barber shoved back, then took “three or four steps” away from the car. According to Barber, Spears exited the car and kept “attacking [him,] talking about he gotta gun and drawing in his pocket.” Believing Spears was going to kill him, Barber drew his gun, closed his eyes, and began shooting. Spears fell to the ground and dropped his gun. As Spears reached for the gun, Barber shot him again to prevent Spears from firing at him as he walked away. Barber then left the scene.

¶ 5. Barber was found later that day in Jackson and arrested. When asked why he fled the scene, Barber explained that he was afraid of being arrested, even though he had shot Spears in self-defense.

¶ 6. Barber was indicted for Spears’s murder and found guilty by a jury in the Rankin County Circuit Court. He was sentenced to life in the custody of the MDOC. Barber filed a motion for a judgment notwithstanding the verdict or new trial, which the trial court denied. Barber now appeals.

DISCUSSION

I. Evidence of Other Crimes

¶ 7. Barber argues he is entitled to a new trial because the State impermis-sibly presented evidence of three uncharged crimes that occurred in relation to Barber’s arrest for murder. “[T]he admission of evidence is within the discretion of the trial court, and courts have been instructed to construe the Mississippi Rules of Evidence in favor of admission.” Ross v. State, 954 So.2d 968, 995 (¶ 51) (Miss.2007). “[R]eversal is appropriate only when a trial court commits an abuse of discretion resulting in prejudice to the accused.” Id. at 992 (¶ 44).

¶ 8. After the murder, Barber went to Jackson, where he knocked on a female’s door and asked to use her phone to call for a ride. The homeowner said no, and an argument ensued. Officer Michael Mooney with the Jackson Police Department responded to the disturbance. Officer Mooney asked Barber for identification. Barber stated that he did not have any identification with him, but that his name was “Chris Moore.” While waiting for dispatch to run the Social Security number given to him by Barber, Officer Mooney frisked him for weapons. Despite Barber’s insistence that he was unarmed, Officer Mooney found a loaded revolver, five bullets, and five spent shell casings. At this point, dispatch returned the information matching the' Social Security number given, and it did not belong to Barber. Officer Mooney then questioned the homeowner, who identified Barber and stated that Barber was from Pearl. Officer Mooney contacted the Pearl Police Department and learned that Barber was wanted for Spears’s murder. Barber was turned over to the custody of the Pearl Police Department.

¶ 9. Barber argues that any evidence of the alleged uncharged offenses— false pretense for lying about his name and identity, unlawful possession of a concealed weapon, and possession of a stolen firearm—was inadmissible bad-act testimony and was unfairly prejudicial. Mississippi Rule of Evidence 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

While evidence of other crimes or bad acts is not usually admissible, an exception exists “where [the evidence] is necessary to show identity, knowledge, intent, [or] motive[;] or to prove scienter.” Simmons v. State, 813 So.2d 710, 716 (¶ 30) (Miss.2002). Another exception exists where the evidence is necessary “to tell the complete story so as not to confuse the jury.” Id.

¶ 10. Officer Mooney’s testimony was not admitted to prove that Barber committed other crimes the day of the murder, or that Barber possessed a propensity toward criminal activity. Rather, the testimony was admitted to tell the jury a complete story as to how Barber was taken into the State’s custody; where Barber went after the murder; and his state of mind when he was arrested. Officer Mooney’s testimony revealed that Barber fled to Jackson from Pearl after shooting Spears; Barber possessed a weapon that matched the type used to kill Spears when law enforcement encountered him in Jackson the same day; he possessed bullets and shell casings that matched those found at the crime scene; and he appeared “nervous” and lied about his identity when approached by law enforcement in Jackson on the day of the shooting in Pearl. Therefore, Officer Mooney’s testimony did not violate Rule 404(b), and the testimony was admissible for other relevant purposes. See Simmons, 813 So.2d at 716 (¶ 30).

¶ 11. In addition, the evidence was more probative than prejudicial under Mississippi Rule of Evidence 403. Barber argues that Officer Mooney’s testimony was highly prejudicial because its only purpose was to show Barber was a criminal, and that the testimony had “minimal” probative value since Barber admitted he shot Spears. We disagree. We find the probative value of giving the jury a complete account of Barber’s arrest outweighed any unfair prejudice. Therefore, the testimony was properly admitted.

II. Ballistic Evidence

¶ 12. Barber argues that Sergeant Jerry Adair, an investigator with the Pearl Police Department, was not qualified under Mississippi Rule of Evidence 702 to testify about the significance of bullet-impact marks found at the crime scene, and that the admission of his testimony was reversible error.

¶ 13. Rule 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

¶ 14. At trial, Sergeant Adair gave his opinion as to his personal observations of the bullet-impact marks at the crime scene. As to State Exhibit 14, a photograph taken by Sergeant Adair of an impact mark, he testified: “From my experience ... as a firearms instructor^] it looked as if someone was holding a weapon, if not pointed directly down, but close[,] at an angle and fired directly down to make this impact into the asphalt.” As to State Exhibit 16, a photograph taken by Sergeant Adair of “an expended piece of ball ammunition,” he testified that “like the other one ... the weapon had to be fired....” At this point an objection was made to Sergeant Adair’s qualifications. The objection was sustained, and a voir dire examination was conducted. Sergeant Adair testified that he had received firearms training, but he was not a certified expert. The State then clarified that it was not seeking to present expert-witness testimony under Rule 702, but rather lay-witness testimony under Mississippi Rule of Evidence 701. The objection was overruled.

¶ 15. Rule 701 states:

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

¶ 16. Sergeant Adair’s testimony was “not based on scientific, technical, or other specialized knowledge.” Id. He simply gave his opinion based upon his personal observations of the scene as to where the bullets appeared to have impacted the ground and where he recovered the shell casings. This testimony required no expert certification. Sergeant Adair’s testimony was “rationally based on [his] perception[s]” at the crime scene and was “helpful to the clear understanding of the testimony or the determination of a fact in issue.” Id.

¶ 17. Since “[t]he relevancy and admissibility of evidence are largely within the discretion of the trial court,” the trial court’s decision will only be reversed “where that discretion has been abused.” Johnston v. State, 567 So.2d 287, 238 (Miss.1990). The record supports the trial court’s ruling that Sergeant Adair simply gave his personal observations of the crime scene. We find no abuse of discretion by the trial court in finding that Sergeant Adair’s testimony was admissible under Rule 701. This issue is without merit.

III. Weight of the Evidence

¶ 18. In his pro se brief, Barber argues the verdict was against the weight of the evidence because of the conflicting testimonies at trial. He argues the jury should have found him not guilty based on self-defense, or, at the most, found him guilty of manslaughter.

¶ 19. When reviewing a challenge to the weight of the evidence, an appellate court “will only disturb a [jury’s] verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). “[T]he evidence should be weighed in the light most favorable to the verdict.” Id.

¶ 20. Barber contends that on the day of the murder, he was walking in his neighborhood when Spears, who was “high on alcohol and cocaine,” “came looking for him.” Barber claims he shot Spears in self-defense after Spears threatened him with a gun. Barber asserts that he was not under the influence of drugs or alcohol at the time. To the contrary, Hopson and Walker testified that Barber was the aggressor and appeared to be “on something.” Also, neither Walker nor Hopson saw Spears with a gun, and no gun was found at the crime scene. Barber counters that no gun was found because Hop-son disposed of it when he fled the scene and drove around the block. Barber also asserts that law enforcement failed to search the area where Hopson drove. However, Barber’s own testimony contradicts this theory, since Barber testified that he saw Spears’s gun on the ground after Hopson drove away. Alternatively, Barber contends that regardless of whether or not Spears possessed a gun, Spears represented to Barber that he possessed a gun, and Barber had the right to defend himself.

¶ 21. “[Wjhere the verdict turns on the credibility of conflicting testimony and the credibility of the witnesses, it is the jury’s duty to resolve the conflict.” Brown v. State, 995 So.2d 698, 702 (¶ 13) (Miss.2008) (quoting Nicholson v. State, 523 So.2d 68, 71 (Miss.1988)). The jury chose to resolve the conflicting evidence in favor of the State. Taking the evidence in the light most favorable to the verdict, we cannot find the jury’s verdict was against the weight of the evidence, or that allowing it to stand would “sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). This issue is without merit.

IV. Admission and Exclusion of Evidence

¶ 22. In this assignment of error, Barber, pro se, argues that the trial judge erred in admitting or excluding certain evidence. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the [appellate court] will not reverse this ruling.” Hargett v. State, 62 So.3d 950, 952-53 (¶7) (Miss.2011) (quoting Price v. State, 898 So.2d 641, 653 (¶29) (Miss.2005)).

¶ 23. First, Barber argues the trial court erred in excluding one of his witnesses, Sheryl Mitchell, who would have testified as to Spears’s violent tendencies while under the influence of cocaine and/or alcohol. A review of Barber’s proffer of Mitchell’s testimony shows a lack of foundation for its admission into evidence. Although usually irrelevant, evidence of a victim’s character may be admissible “where the defendant claims that the victim was the initial aggressor and that the defendant’s actions were in the nature of self-defense.” M.R.E. 404(a) cmt. Mitchell’s knowledge of Spears’s character while using cocaine and/or alcohol was not relevant to show Barber’s knowledge of such, because no evidence in the record lays the foundation that Barber possessed such knowledge or belief. Mitchell’s proffered testimony asserted her knowledge and belief, but did not indicate she told Barber her belief about Spears’s tendencies toward violence. Further, Barber testified and provided no evidence that he believed Spears to be violent while using cocaine or alcohol. “In order to admit evidence of the violent character of [the] deceased as bearing on the apprehension of danger by the accused, it must appear to have been known to him.... ” Freeman v. State, 204 So.2d 842, 844 (Miss.1967). Mitchell’s proffered testimony lacked a sufficient evidentiary foundation for admission since the proffered testimony failed to show Barber believed Spears to be violent when using cocaine or alcohol. The record therefore shows no error or abuse of discretion by the trial court’s finding Barber failed to provide a sufficient evidentiary foundation to allow the proffered testimony by Mitchell regarding the victim’s character. Our standard of review of the trial court’s admission or exclusion of evidence is abuse of discretion, and we find that the record shows no abuse of discretion by the trial court in excluding Mitchell as a witness. See Hargett, 62 So.Sd at 952-53 (¶ 7).

¶ 24. Second, Barber argues the trial court erred in allowing into evidence a photograph of a bullet on the sidewalk in front of Barber’s home. Barber asserts that any evidence regarding the bullet was irrelevant since it had no connection to the crime. No testimony was given regarding the bullet other than its location. We find the trial court did not abuse its discretion in overruling Barber’s objection at trial. The photograph was taken as part of the investigatory process, and Barber has made no argument that the photograph prejudiced his defense.

¶ 25. Third, Barber argues that the State was allowed to shift the burden of proof by asking a witness if the defense had requested a gunshot-residue test on Spears. Forensic expert David Whitehead of the Mississippi Crime Laboratory testified that he “did not test the victim’s [gunshot-residue] kit” because “[t]here was not a request made for that analysis.” On cross-examination, Barber’s counsel asked questions suggesting that the police should have requested a gun-shot-residue test. On redirect examination, the State sought to clarify whether the defense had requested the test. Whitehead stated that they had not. As Whitehead had already stated no request was made from either side, there was no harm in the State asking this question. This issue is without merit.

¶ 26. Fourth, Barber asserts the trial court abused its discretion in allowing Dr. Steven Hayne to testify as an expert in forensic pathology. In Edmonds v. State, 955 So.2d 787, 792 (¶ 8) (Miss.2007), the Mississippi Supreme Court held that “Dr. Hayne is qualified to proffer expert opinions in forensic pathology[.]” Barber does not assert any specific error in Dr. Hayne’s findings. Thus, this argument is without merit.

¶ 27. Finally, Barber asserts the trial court allowed the State to introduce an expert report that was not provided to him in discovery. The report, which was prepared by Steve Byrd of the Mississippi Crime Laboratory, compared spent shell casings found at the crime scene to those from a test fire done at the crime lab. A dispute arose at trial over whether the defense had received the report. Barber’s counsel was given an opportunity to review the report. The judge then asked: “Does it prejudice your case in any way? Do you need a continuance so that you can examine this report?” Barber’s counsel replied, “No, your Honor.” Thus, even if the State failed to submit the report in discovery, Barber’s counsel was allowed to review the report, and the judge offered a continuance, which met the requirements of Uniform Rule of Circuit and County Court 9.04(1). This issue is without merit.

V. Prosecutorial Misconduct

¶ 28. Barber, pro se, argues that the prosecutor: asked leading questions meant to elicit hearsay testimony and pri- or-bad-act testimony; vouched for the credibility of a State witness; allowed Dr. Hayne to testify, knowing that he was unqualified; and “badgered” and attempted to confuse Barber during cross-examination. No objection was made to any of Barber’s alleged errors; therefore, his arguments are procedurally barred. See Johnson v. State, 44 So.3d 365, 366 (¶ 6) (Miss.2010) (“It is well-established that failure to raise an issue at trial procedurally bars review on appeal.”). Despite the procedural bar, this Court has reviewed the record and found no merit to Barber’s assertion of prosecutorial misconduct. This issue is without merit.

VI. Ineffective Assistance of Trial and Appellate Counsel

¶ 29. Barber asserts his trial and appellate attorneys were ineffective. To prove ineffective assistance of counsel, Barber must show that (1) his “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced [his] defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “[T]here is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance.” Willis v. State, 66 So.3d 740, 745 (¶ 21) (Miss.Ct.App.2011) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Barber is raising his ineffective-assistanee-of-counsel claim on direct appeal, rather than though a post-conviction-relief motion. Therefore, this Court may only consider the merits if “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Wilcher v. State, 863 So.2d 776, 825 (¶ 171) (Miss.2003).

¶ 30. Barber argues his trial counsel failed to file a suppression motion based on an illegal search and seizure; failed to cross-examine the arresting officer on the illegal search and seizure; failed to interview certain potential witnesses; failed to make certain objections; and failed to question the trial court’s sentence pronouncement. These decisions were matters of trial strategy, which do “not generally amount to ineffective assistance of counsel.” Rogers v. State, 85 So.3d 293, 297 (¶ 16) (Miss.2012). Barber has not shown any “ineffectiveness of constitutional dimensions,” and the parties have not stipulated that the record is adequate for this Court’s review. Wilcher, 863 So.2d at 825 (¶ 171). Therefore, we find no merit to this argument.

¶ 31. Barber’s argument regarding his appellate counsel’s failure to adequately review the record and identify certain issues is not appropriate for direct appeal. Because “[t]he standard of acceptable performance by an attorney is the same for appellate performance as it is for trial performance,” Barber “must show both professional error and resulting ’prejudice.” Williams v. State, 722 So.2d 447, 450-51 (¶ 12) (Miss.1998) (emphasis added). It is impossible for Barber to show resulting prejudice before knowing the outcome of his appeal. Thus, we will not address this argument.

¶ 32. The judgment of the trial court is affirmed.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. BARNES AND JAMES, JJ, CONCUR IN PART AND IN THE RESULT.

      . The Office of the State Public Defender, Indigent Appeals Division, has filed a brief on Barber’s behalf, raising issues one and two. The remaining issues are raised by Barber, proceeding pro se. Mississippi Rule of Appellate Procedure 28(b) allows a criminal appellant to file a pro se supplemental brief to address "issues not raised by counsel.” The brief must conform with our rules of appellate procedure, and must be based on the record. Id. Rule 28(b) is based on Article 3, Section 26 of the Mississippi Constitution, which states that “[i]n all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both[.]” To the extent Barber's pro se arguments overlap with those of counsel, they have been combined.

      . Mississippi Rule of Evidence 403 states that 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.”

      . Also under this assignment of error, Barber argues that the trial court's oral pronouncement sentencing him to "life” is in conflict with MDOC records, which reflect a sentence of life "without the benefit of parole.” This issue is not appropriate for direct appeal, but is better suited for an administrative proceeding through the MDOC or a post-conviction-relief motion.


author: GRIFFIS, P. J., for the Court:

text:
    Thomas Nathan PICKETT a/k/a Nathan a/k/a Thomas N. Pickett a/k/a Thomas Pickett, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00939-COA.
    Court of Appeals of Mississippi.
    Nov. 12, 2013.
    Rehearing Denied April 29, 2014.
    Certiorari Denied July 31, 2014.

      Jason Todd Barrett, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.

      Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P. J., for the Court:

¶ 1. Thomas Nathan Pickett appeals his sexual-battery conviction. He argues that: the trial court erred in allowing the testimony of James, a minor, under Mississippi Rule of Evidence 803(24); the trial court erred in allowing the testimony of Brandy, a minor, under Mississippi Rule of Evidence 803(25); the trial court erred in accepting Gwen Stephens as an expert witness; and the cumulative effect of the numerous errors in the trial denied Pickett his fundamental right to a fair trial. We find no error and affirm.

FACTS

¶ 2. In 2011, Pickett resided with Dawn (his wife), Brandy (his stepdaughter), James (his son), and Amanda (his daughter). At the time of the trial, Brandy was thirteen, James was nine, and Amanda was seven.

¶ 3. On February 26, 2011, the family had spent the afternoon fishing. After returning home, Pickett cooked for the family. After dinner, Amanda, who has a physical handicap, went to sleep in her parents’ bedroom while the rest of the family watched television in the living room. Pickett told Dawn that he was going to the store to buy cigarettes. Dawn complained that Pickett never spent any time with the kids, because his job required him to be gone for days at a time, so she offered to go buy the cigarettes for him. At this point, the testimony begins to vary.

¶ 4. Pickett testified that he was watching television on the couch with his son when Dawn returned. Dawn asked him where Brandy was, and he told her that Brandy was in her bedroom. Pickett said that he then walked to the bathroom, and when he started out, Dawn was standing at the door with a gun alleging that her mother told her that he had done bad things to Brandy. Pickett denied all wrongdoing and left the house.

¶ 5. Dawn testified that when she returned home from the store after purchasing cigarettes and gas, she saw James in the recliner watching television, but Brandy and Pickett were not in the room. She testified that James asked her, “How come Daddy is always in the back with [Brandy] when you leave?” Dawn then testified that she found Brandy’s bedroom door shut, and when she attempted to open the door, she was only able to get it partially open. She testified that the door was immediately slammed back in her face, so she tried to open it again and was able to open it.

¶ 6. Dawn then testified that she found Brandy kneeling on the floor facing Pickett, and his pants and underwear were pulled down around his knees. Dawn asked him what was going on, and he said, “Nothing.” Dawn testified that Brandy said that Pickett made her do nasty things. Dawn then testified that she attempted to get Pickett out of the house, and he continued to deny everything and tried to grab her phone. Brandy then called Dawn’s mother, and Dawn grabbed a gun to try and scare Pickett out of the house. Dawn testified that Pickett grabbed the gun and held it towards her. Pickett finally left the house. Dawn then took the kids to her mother’s house, and they contacted the authorities.

¶ 7. Cora Robinson, an employee of the Mississippi Department of Human Services, interviewed Brandy. Brandy told Robinson that Pickett, her stepfather, began sexually abusing her when she was seven or eight years old, and she never told anyone because Pickett had threatened to kill her and her family if she did. Brandy also told Robinson that, on the night in question, she was sitting on the couch when her mom left to buy cigarettes. Pickett walked toward the kitchen and began motioning for her to go to her room. She tried to ignore him, and he whispered for her to go to her room, and she finally went.

¶ 8. Robinson referred Dawn to Stephens, a licensed clinical social worker, for Brandy’s therapy. Stephens diagnosed Brandy with post-traumatic stress disorder and noted that Brandy suffered from migraines, nightmares, and gastric problems.

¶ 9. Pickett was indicted for the crime of sexual battery in violation of section 97-3-95 of the Mississippi Code Annotated (Rev. 2006). A jury returned a verdict of guilty, and Pickett was convicted of sexual battery. Pickett was sentenced to serve forty years, with ten years suspended, in the custody of the Mississippi Department of Corrections and five years of post-release supervision. Pickett’s post-trial motions were denied.

ANALYSIS

I. James’s Testimony

¶ 10. Pickett argues that it was error to allow James to testify at trial. However, James did not actually testify as a witness at trial. Instead, the following occurred during Dawn’s direct examination:

State: What, if anything, did you do after you came into the room?
Dawn: When I come through the house, my son stopped me and asked me ...
Defense counsel: Judge, I’m going to object what her son asked.
Court: Well, Counsel, it’s hard to know whether it’s hearsay without hearing it.
State: Let me ask another question. You went back to [Brandy’s] room, correct?
Dawn: Yes, that’s correct.
State: Was that based on a statement that you heard?
Dawn: Yes.
State: May I approach, Your Honor[?] Counselor?

At that point, a sidebar took place where the following exchange occurred:

State: Your Honor, the statement is a hearsay statement but that is the very reason she went back there. I think she has testified that is the reason. The statement was, “Why do[ ] [Brandy] and Daddy go to the back every time you leave?” And that’s why she immediately went back to the back. The State’s going to offer it not for the truth of the matter asserted but the reason why she went back to the back.
Court: The little boy said that?
State: Yes, sir.
Court: ... How old was the child?
State: Eight at the time.
Court: [Under] Rule 803 exception 24[,] ... I’m going to allow it. Ask it under that exception.

The State then resumed its direct examination of Pickett, as follows:

State: Ms. Pickett, when you came in, the first person you came in contact with was [James], correct?
Dawn: That’s correct.
State: What, if anything, did he say when you came in?
Dawn: He told me, well, asked me, “how come Daddy is always in the back with [Brandy] when you leave?”

¶ 11. Pickett argues that it was an abuse of the trial court’s discretion to allow Dawn to testify about what James said to her because it was hearsay. Further, Pickett argues that the State did not did not offer a scintilla of evidence that such hearsay testimony was reliable or trustworthy, and the trial court did not make a factual finding of the same. As a result, Pickett asks this Court to find that it was reversible error for the trial court to admit the statement under Rule 803(24).

¶ 12. The trial court is entitled to a considerable amount of discretion in deciding the admissibility of evidence and will be overturned on appeal only upon a finding of abuse of discretion. Quimby v. State, 604 So.2d 741, 747 (Miss.1992).

¶ 13. Mississippi Rule of Evidence 801(c) defines “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 802 provides that “[h]earsay is not admissible except as provided by law.” Rule 803(24) provides that the following is not excluded by the hearsay rule:

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

The Comment adds that “[w]hile [this rule allows] for judicial discretion, [it does] not permit an unfettered discretion which could ultimately devour the hearsay rule. Before admitting statements under this rule, the judge must make a finding that the statements being offered are sufficiently trustworthy and reliable.”

¶ 14. In response, the State argues that it was not error to allow this testimony in evidence because it was not hearsay. James’s statement to Dawn was not offered to prove the “truth of the matter” that Pickett always took Brandy to the back, but instead was offered to show why Dawn went back to Brandy’s bedroom. The State claims that the fact that the trial court found the statement admissible on other grounds does not require this Court to find that the trial court erred in its admission of the testimony. In Towner v. State, 837 So.2d 221, 225 (¶ 9) (Miss.Ct.App.2003), this Court held:

It is the customary practice, in the name of judicial economy, for an appellate court to affirm the trial court if the right results is reached even though for the wrong reason. Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993). We do not reverse where the trial court reaches the right result even when we conclude that this result was reached for the wrong reason. Booker v. State, 745 So.2d 850, 856 [ (¶ 18) ] (Miss.Ct.App.1998) (citing Carter v. State, 167 Miss. 331, 342, 145 So. 739, 741 (1933)).

¶ 15. Accordingly, we find that Dawn’s testimony about what James said was admissible evidence. The trial court incorrectly identified the evidence as hearsay but reached the correct result. Dawn’s testimony about what James told her was not hearsay, because it was not admitted to prove the truth of the matter asserted; rather, it was admitted only to show why Dawn did what she did, i.e., went to the back room. We find no merit to this issue.

II. Brandy’s Testimony

¶ 16. Pickett next argues that it was error to allow Brandy’s testimony at trial. Although Brandy testified at the trial, Pickett’s concern, here, is that Robinson was allowed to testify about what Brandy told her during her interview. Pickett objected to the testimony. The State argued that the testimony was admissible under Mississippi Rule of Evidence 803(3). After argument, the trial court excused the jury and conducted a hearing under Mississippi Rule of Evidence 803(25).

¶ 17. At the conclusion of the hearing, the court ruled:

Alright. The hearing has been conducted. The court finds that the minor child’s testimony should be admitted as an exception to the hearsay rule. The court specifically makes the following findings: that the child was at first hesitant and then became relaxed; that the child had been taken out of the alleged dangerous situation, as she had been moved into another home before the statement was given; that the child had a nervous affect initially; that the child was able to recount with substantial detail not only the events alleged in this indictment but a number of other events, including at least two other occasions where the defendant sought to have or had oral sex with her and one event where he sought to have intercourse with her; that the questions asked of the child were largely non-leading; that the child knew the details that an ordinary ■ twelve-year-old would not know. The court finds that no one else was present when the interview was conducted. The court finds that there is no evidence before the court of this child being coached or coerced with regard to her testimony; that there is no evidence that this child fabricated the testimony; that the court has no evidence of any motive that the child might have to lie or to make this testimony up[;] and that at all times, that her affect was at all times appropriate with regard to her testimony. Therefore, the court finds that the child’s description of the sexual acts as contemplated in Rule 803 subsection (25) — in addition, that the State does intend to call the child as a witness during the trial of this matter, and the court finds that that testimony is admissible under 803(25).

¶ 18. Thereafter, Robinson testified as follows:

State: If you would, please, tell the ladies and gentlemen of the jury what [Brandy] told you concerning Nathan Pickett when you interviewed her on February 27.
Robinson: Concerning Nathan Pickett, that she hated him for what he was doing to her.
State: What, if anything, did she tell you he was doing to her?
Robinson: That he was doing nasty things such as putting his thing in her mouth.
State: What, if anything else, did she describe to you as a nasty thing? Robinson: The mucus.
State: In her words how did she say anything about mucus?
Robinson: The mucus that was coming from his thing that he would make her swallow it but that particular night she did not swallow it, that she spit it out.
State: And you said she said it was coming from [his] “thing.” What was she referring to as a “thing?”
Robinson: Coming from his thing.
State: His thing.
Robinson: His penis.
State: Alright. Was anyone else with you when you interviewed her?
Robinson: No.
State: Just you and her?
Robinson: Yes.
State: What, if anything else, did she describe to you?
Robinson: The truck incidents, the abuse when they w[ere] hunting. What truck incident?
State: What truck incident?
Robinson: When they would be in a truck, oral sex would take place.
State: Why would they be in a truck?
Robinson: That was the transportation to get back home.
State What, if any, other events of a sexual nature did she describe between herself and Nathan Pickett?
Robinson: Being in their bathroom, being in her stepdad and her mother[’s] bathroom.
State: What happened there?
Robinson: He attempted to try to have intercourse with her.
State: Is “intercourse” your word or hers?
Robinson: I believe it’s mine.
State: The jury wasn’t in here earlier, so when he attempted to have intercourse, what did she say he attempted to do?
Robinson: By putting her against the wall and have her pull her panties down.
State: And then what?
Robinson: And his penis touch her private area.
State: What, if anything, did she tell you about how the incident on February 26 stopped?
Robinson: That incident, according to her, stopped when her mother arrived back from the store and she walked down the hall, saw her bedroom door closed, [Brandy] bedroom door closed, and she slammed it open and she observed what was taking place and that’s how that....
Defense counsel: I’m going to object to what the mama told her.
State: No, this is what [Brandy] ...
Court: Overruled. It’s the testimony of the child....
Robinson: This is what [Brandy] told me.
State: Okay, go ahead. So the mama opened the door and then what?
Robinson: Her mother slammed the door open and that’s when she observed the scene.
State: And where did they go from there, meaning, [Brandy] and her mom.
Robinson: [Brandy], her mother and the two other children left the trailer house and went to the motherf’s].. home for safety, for the children’s safety and well[-]being.
State: When she was telling you about various things that had happened, what, if anything, did she tell you about how old she was when the first thing happened between her and Mr. Pickett of a sexual nature. Robinson: She stated that she was about seven or eight years old.

¶ 19. Pickett contends that the trial court’s reliance on Robinson’s testimony as to what Brandy allegedly said about the incident should not pass the suffieiency-of-reliability test under Rule 803(25). Pickett claims that, at a minimum, the trial court should have conducted an in-camera hearing or meeting in chambers with Brandy, whose testimony was being offered. As such, Pickett concludes that Robinson’s determination of what she believed was reliable in Brandy’s statements creates an impression that Robinson is a human lie-detector test. Further, Pickett argues that Brandy had a motive to lie, and her statements made to Robinson were not spontaneous.

¶ 20. Once again, we review the trial court’s decision on the admission of evidence for abuse of discretion. Smith v. State, 989 So.2d 973, 983 (¶ 33) (Miss.Ct.App.2008). Mississippi Rule of Evidence 803(25) provides:

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness....

The Comment lists multiple factors that the trial court should consider to determine if the statement is substantially reliable:

(1) whether there is an apparent motive on declarant’s part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declar-ant’s age, knowledge, and experience make it unlikely that the declarant fabricated. Corroborating evidence may not be used as ... indicia of reliability.

M.R.E. 803(25) cmt.

¶ 21. As required by Rule 803(25), the trial court held a hearing, outside the presence of the jury, to determine whether the statements made had substantial indi-cia of reliability. The trial court found that Brandy was of tender years when she made the statement, as she was twelve years old, and Robinson was examined in regard to her meetings with Brandy after the alleged incident. The trial court found that Brandy’s statements to Robinson had substantial indicia of reliability, and Brandy testified at trial. Because all of the requirements for the residual exception of Rule 803(25) were met, Pickett’s argument that the trial court erred in allowing the testimony fails. We find no merit to this issue.

III. Acceptance of Stephens as Expert Witness

¶ 22. Pickett asserts that the trial court erred in accepting Stephens as an expert, pursuant to Mississippi Rule of Evidence 702. Pickett contends that Stephens’s methodology for arriving at her opinion cannot be tested for reliability and is based entirely upon Stephens’s subjective belief. Pickett argues that: (1) Stephens has never previously testified in a criminal court, (2) Stephens admitted that Dawn had participated in some of the interviewing sessions, (3) Stephens admitted that her answers were derived from Brandy’s responses, and Stephens never followed up with anyone to ascertain whether the statements were truthful, (4) Stephens was never informed that Pickett had recently disciplined Brandy, (5) Stephens never visited the home where the allegations were said to have occurred, and (6) Stephens attributed health issues to the alleged incident but was never informed that these health concerns had existed prior to the incident.

¶23. Mississippi Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The supreme court has established the gate-keeping responsibility of the trial court to determine whether the expert testimony is relevant and reliable. In Anderson v. State, 62 So.3d 927, 936 (¶ 23) (Miss.2011), the supreme court ruled that “[t]he admission of expert testimony is within the sound discretion of the trial judge.” Additionally, in Henry v. State, 484 So.2d 1012, 1014 (Miss.1986) (quoting Hollingsworth v. Bovaird Supply Co., 465 So.2d 311, 314-15 (Miss.1985)), the court held that “[t]he trial judge is called upon to exercise his sound discretion in determining whether the witness is legitimately qualified as an expert in the applicable fields of scientific knowledge.” Further, the court ruled that “[i]t is not necessary that one offering to testify as an expert be infall[i]ble or possess the highest degree of skill; it is sufficient if that person possesses] peculiar knowledge or information regarding the relevant subject matter which is not likely to be possessed by laymen.” Henry, 484 So.2d at 1015 (citing Glens Falls Ins. Co. v. Linwood Elevator, 241 Miss.400, 130 So.2d 262 (1961); Wallace v. State, 203 Miss. 504, 35 So.2d 703 (1948); Floyd v. State, 166 Miss. 15, 148 So. 226 (1933)).

¶24. Stephens testified that her methodology was based on information gathered from her client though an interview. She explained in detail how she used the information gathered in her interviews to reach a diagnosis. This Court addressed this issue in Carter v. State, 996 So.2d 112 (Miss.Ct.App.2008). There, the defendant argued that the testimony of an expert in forensic interviewing and child abuse, and the testimony of a forensic interviewer with the Children’s Advocacy Center, should not have been allowed because “their testimonies cannot be tested and Daubert specifically lists testability as a factor.” Id. at 116-17 (¶ 15). The Court held that “the accuracy of forensic interviewing is largely untestable, and that Daubert factor therefore does not apply when determining the admissibility of such an expert’s testimony.” Id. at 117 (¶ 16). The Court also noted there have been other cases where such testimony has been accepted as admissible. Id. at (¶ 17).

¶ 25. Here, we find no reason for a different result. We do not find that the trial court abused its discretion by accepting Stephens as an expert witness and allowing her to testify. We find no merit to this issue.

IV. Cumulative Error

¶26. Under this issue, Pickett argues that the trial court erred when it allowed the prosecutor to use prejudicial inflammatory language. During the cross-examination of Pickett, the following exchange occurred in the presence of the jury:

State: Why would she say that?
Pickett: Because she didn’t want me to have my young[’]uns. She wanted to keep my young[’]uns from me.
State: She’s giving you visitation, dude, how is that even....
Pickett: After three months of taking me to court to fight for my young[’]uns.
State: That’s not plausible. You’re looking for excuses.
Pickett: No sir, I’m not looking for excuses.
State: You’re looking for excuses because you remember that kid and you put. your f* * *ing penis in her mouth.
Defense Counsel: Your Honor, I would object to that. He’s being argumentative with him.
Court: I’m going to allow him to answer that ... and then move on.

¶ 27. Pickett argues that although counsel may have wide discretion during cross-examination, the prosecutor’s question was “highly prejudicial, argumentative and delivered for the sole purpose of inflaming the jury.” As authority to reverse the conviction on this issue, Pickett cites to the following principle—“If a combination of specific errors, harmless in each instance, accrued so that a defendant was denied a fair trial, we will reverse based on cumulative error.” Kolberg v. State, 829 So.2d 29 (¶ 181) (Miss.2002).

¶ 28. In Baine v. State, 604 So.2d 249, 256 (Miss.1992), the court stated that “[t]his Court has repeatedly and consistently held that such action [ (instruction to the jury to disregard testimony)] is sufficient to remove any prejudice resulting from the improper testimony.” See also Dennis v. State, 555 So.2d 679, 682-83 (Miss.1989) (improper speculative testimony rendered non-prejudicial when trial court sustained objection and instructed jury to disregard testimony); Wright v. State, 540 So.2d 1, 4 (Miss.1989) (“Absent unusual circumstances, where [an] objection is sustained to improper questioning or testimony, and the jury is admonished to disregard the question or testimony, we will not find error.”); Marks v. State, 532 So.2d 976, 982 (Miss.1988) (refusal to grant mistrial was proper where trial court sustained objection and instructed jury to disregard improper testimony); see also Smith v. State, 530 So.2d 155, 161 (Miss.1988). However, the supreme court has also held that

[t]he trial judge, however, is in the best position to determine if a remark is truly prejudicial, and is given considerable discretion to determine whether a remark creates irreparable prejudice necessitating a mistrial. Where the remark creates no irreparable prejudice, then the trial court should admonish the jury to disregard the improper remark.

Baine, 604 So.2d at 257 (quoting Reynolds v. State, 585 So.2d 753, 755 (Miss.1991)).

¶ 29. Here, it appears that the prosecutor got caught in the heat of battle during the cross-examination of Pickett. While we recognize that the prosecutor’s statement lacked the professionalism expected of a prosecutor for the State of Mississippi, we also note that Pickett’s counsel did not ask the trial court for a limiting instruction, an admonishment, or any sanction against the prosecutor. Instead, Pickett’s objection was simply that he was “being argumentative.” We certainly do not condone the prosecutor’s question. However, we find that this improper question did not rise to such a level of prejudice as to warrant reversible error. There was sufficient evidence presented to the jury to support their findings. Accordingly, we find no error as to this issue.

¶ 30. Having found no error in the issues presented, we affirm the judgment of conviction.

¶ 31. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS SUSPENDED AND THIRTY YEARS TO SERVE, AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $10,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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

      . Dawn is now his ex-wife.

      . Because of the nature of the charge, the names of the minors involved have been changed to protect their identities.

      .At the time of the crime, Amanda shared a bedroom with her parents.

      . Mississippi Rule of Evidence 803(3) is a hearsay exception for "Then Existing Mental, Emotional, or Physical Condition.”


author: ISHEE, J., for the Court:

text:
    Jabariakias CUNNINGHAM a/k/a Jabariakias Kentez Cunningham a/k/a Jabariakias K. Cunningham a/k/a Jaboriakias “Knunch” Cunningham, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00418-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.
    Rehearing Denied April 15, 2014.
    Certiorari Denied July 31, 2014.
    Office of State Public Defender by Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   ISHEE, J., for the Court:

¶ 1. In 2012, Jabariakias Cunningham was convicted in the Lowndes County Circuit Court of armed robbery and aggravated assault. The circuit court sentenced him as a habitual offender to two consecutive twenty-year sentences in the custody of the Mississippi Department of Corrections (MDOC). Cunningham filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The circuit court denied the motion. Aggrieved, Cunningham now appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On January 17, 2011, Ahmed Osman and Larry Fulton were working at Naem Grocery Store in Artesia, Mississippi. Osman recalled that around 7:00 p.m., Cunningham and three others entered the store, and Cunningham purchased a soda and chips with a one-hundred-dollar bill. The four men left the store, but two of the men returned around 9:45 that evening. Osman later identified Cunningham as one of the two men who had returned.

¶ 3. Osman stated that after the two men entered the store, Cunningham jumped onto the counter near the cash register, pointed a gun at the ceiling, and fired it one time. Osman later identified the other man with Cunningham as Troyal Williams. Williams took money from the cash register and Osman’s wallet. Osman stated that Cunningham fired the gun at the ceiling a second time, and the two men left.

¶ 4. Shaketa Hill, an Artesia resident who knew Cunningham and Williams, was at a park across the street from the store at the time of the incident. She testified that she saw Williams walking from the store and saw Cunningham waiting for Williams outside of the store sometime around 10:00 p.m. She also testified that two days after the incident, she was walking past a group of men, which included Cunningham, and she heard Cunningham talking about the robbery.

¶ 5. Nancy Cunningham, Cunningham’s grandmother, testified that Cunningham, Williams, and several others were at her house for dinner on the night in question. She gave Cunningham a one-hundred-dollar bill and asked him to get change for the bill at the store so that she could pay a water bill. Cunningham, Williams, and a few others complied, and returned shortly thereafter with the change, soda, and chips. Nancy stated that the group ate dinner, and the boys then walked out to a shed on her property, where they played video games. Nancy also testified that Cunningham left around 8:45 p.m., and she did not see him again that night.

¶ 6. Cunningham’s mother, Barbara Sherman, was also at Nancy’s house for dinner on the night in question. She testified that Javoris Snell, a friend of Cunningham’s, arrived at Nancy’s house around 8:40 after dinner, just as Sherman was leaving. Sherman stated she saw Cunningham come out of the house to meet Snell, and did not see the men again that night.

¶ 7. Snell testified that he picked up Cunningham from Nancy’s house around 8:30 and that they went to Snell’s house. Snell stated that they visited at his house until around 9:40, when he took Cunningham to Cunningham’s house, which was located approximately one block from the store. Snell’s girlfriend, Kanika Logan, corroborated this series of events by testifying that when she walked outside Snell’s house at 9:30 to smoke a cigarette, she saw Cunningham getting into Snell’s car.

¶ 8. Officers Tony Perkins and Sonny Sanders, with the Lowndes County Sheriffs Department, responded to the crime scene. After interviewing several individuals that night, they went to Nancy’s house in search of Cunningham. They testified that Cunningham was not there.

¶ 9. Cunningham was soon indicted for armed robbery and aggravated assault. The trial took place on February 29, 2012. The jury returned a guilty verdict on both counts, and Cunningham now appeals.

DISCUSSION

¶ 10. The case of Lindsey v. State, 939 So.2d 743 (Miss.2005), governs this appeal. In Lindsey, the Mississippi Supreme Court promulgated procedures an attorney must follow when the “appellate counsel represents an indigent criminal defendant and does not believe his or her client’s case presents any arguable issues on appeal.” Id. at 748 (¶ 18). When this situation arises, an attorney must:

(1) ... [F]ile and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(l)-(4), (7);
(2) ... [C]ertify [in the brief] that there are no arguable issues supporting the client’s appeal, and [that the attorney] has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding the arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing^ and]
(3) ... [S]end a copy of the brief to the defendant, inform the [defendant] that counsel could find no arguable issues in the record, and advise the [defendant] of his or her right to file a pro se brief.

Lindsey, 939 So.2d at 748 (¶ 18) (citations omitted).

¶ 11. Cunningham’s counsel has complied with the requirements of Lindsey. Counsel further petitions this Court for an extension of time for Cunningham to submit a pro se brief. However, having reviewed the record, we cannot find any arguable issue for appeal or reversible error committed at the trial level. As such, the request for more time is denied. We affirm Cunningham’s conviction and sentence.

¶ 12. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND AGGRAVATED ASSAULT AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY YEARS FOR EACH COUNT, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, WITH THE SENTENCES TO RUN CONSECUTIVELY, AND TO PAY A $1,000 FINE FOR EACH COUNT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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