author: RANDOLPH, PRESIDING JUSTICE,

text:
    Kelvin D. ASHFORD a/k/a Kelvin Ashford a/k/a Booman v. STATE of Mississippi
    NO. 2015-KA-01839-SCT
    Supreme Court of Mississippi.
    06/08/2017

      ATTORNEY. FOR APPELLANT: JOHN KEITH PERRY, JR.
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.
   RANDOLPH, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. Kelvin Ashford was indicted, tried, and found guilty by a Tate County jury on eight counts of sexual battery and two counts of fondling. Aggrieved by the judgment of conviction and resulting sentence, Ashford appeals. Finding no error, we affirm. .

FACTS AND PROCEDURAL HISTORY

¶ 2. According to N.W., her' aunt, Marjorie Willie, had an oh-agairy off-again relationship -with Kelvin Ashford for N.W.’s entire life. N.W. and Marjorie were close, they saw each other almost every day, and N.W. considered Ashford' to be like an uncle. N.W. testified that the first time anything happened between her and Ash-ford was in March or April of 2007, when she was nine years old. Ashford lay in bed with N.W., but nothing happened that first day. However, Ashford kept trying to touch N.W. For four to six months, she ran from him, but eventually she got tired of running. Ashford began touching her inappropriately in her private areas, and he did so for four to five years straight (from ages nine to fourteen).

¶ 3. In fifty pages of trial testimony, N.W. described in-detail the-sexual acts that Ashford forced her to perform during the four-to-five-year span, including numerous acts of vaginal intercourse, sodomy, fellatio, and cunnilingus. When asked how often these acts would take place, N.W. replied that it depended on how often she went to her aunt’s house or how often Ashford came to N.W.’s house. Some weeks, it was every day. Ashford regularly babysat N.W. and her brother, along with Marjorie’s children, while Marjorie and N.W.’s mother (Marionette) were working.

¶ 4. N.W. testified she did not tell anyone earlier because she did not want to experience the stress of a trial again like she experienced when she was six. On May 7, 2012—when N.W. was fourteen years old—she left a note for her mother on the refrigerator. The note informed Marionette that the reason N.W. had been behaving badly was because what happened to her a long time ago hád happened again, and it started three years after the first time. After leaving the note, N.W. finally told her mother that Ashford had been abusing her. They went to the hospital, where N.W. tested positive for a sexually transmitted disease (STD). N.W. testified that she was not otherwise sexually active at the time, so Ashford had to be the person from whom she contracted the disease. N.W. then identified a statement she had given previously to Detective Lisa Sanders, which was admitted into evidence without objection after N.W. testified that the events were clearer in her mind at the time she wrote the statement than they were at the time of trial. In the statement, N.W. claimed she was sexually abused by Ashford more than one hundred times, that he had done “sexual thing[s]” to her since she was nine years old. N.W. was asked if she was lying about Ashford because she really caught the STD from her boyfriend. She said no, that she and her boyfriend were not sexually active.

¶ 5. On cross-examination, defense counsel referenced the statement and asked N.W. what she and Ashford had done “a hundred times,” to which N.W. again described multiple sexual acts Ashford had committed against her or forced her to perform. N.W. described a time when Ash-ford sexually assaulted her in the bed while Marjorie slept beside her. N.W. tried to wake her aunt to no avail: “I bumped her and didn’t wake up, so... I patted her. She didn’t wake up.” N.W. testified it was not uncommon for the children to sleep with Marjorie on occasion. When asked where the various incidents took place, N.W. responded wherever and whenever Ashford decided. She testified the last time Ashford did anything to her was two to three months before she wrote the letter in May 2012. After the last incident, Ash-ford' began working with N.W.’s grandfather and was not at home as often. Finally, defense counsel asked N.W. to describe Ashford’s penis. She .did: “The top part of his penis has a—a—I’d say a bump, mole on top of it. It has hair around it.” Defense counsel then abandoned that line of questioning.

¶ 6. Marionette testified that she and Marjorie were close, that they saw each other regularly. She identified Ashford as Marjorie’s long-time boyfriend who used to keep her children, including N.W., every day. She testified that after she read the note from N.W., she took her to the hospital where she was diagnosed with tricho-moniasis, an STD. When Marionette informed Ashford about the allegations, he denied being with N.W. Marionette testified that she saw Ashford almost everyday, that sometimes he stayed with her when he was angry with Marjorie. He also sometimes stayed with his mother or with another woman.

¶ 7. The State then called Detective Lisa Sanders, who testified that, when she arrived at the hospital while N.W. was getting tested, Marionette was on the phone with Ashford. Sanders had Marionette put Ashford on speaker phone while Sanders prompted Marionette on what to say. After repeatedly denying ever being with N.W., Ashford stated he would help take care of the baby if N.W. was pregnant, “just out of kindness.” Sanders testified he even agreed to pay for an abortion. Ashford said he would submit to a DNA test but did not want the police involved. Four days later, Ashford went to the police station and, after signing an acknowledgment of rights form, gave a videorecorded statement to Sanders. In the video, Ashford stated he had been with Marjorie off-and-on for about fourteen years. He denied doing anything sexual with N.W., stating she never even walked in on him while he was in the bathroom or getting dressed. When told about N.W. having an STD, Ashford said he was supposed to get tested too as part of the hiring process at North Oak Hospital where he was trying to get a job. Sanders identified Exhibit 2 as the statement she took from N.W. She also testified that she had checked, and STD testing was not part of the hiring process at the hospital—that they check for only drugs and narcotics. On cross-examination, Sanders admitted that she had never asked Ash-ford to submit to any DNA or STD testing.

¶ 8. Next, the State called Dr. Olufemi Adeleye—the physician who treated N.W. at the hospital—as an expert regarding the examination, bloodwork, and results. On May 7, 2012, NW.’s chief complaint was a vaginal discharge. She told the doctor she was molested two to three months back, that she was fourteen, and that she had been molested since age nine. Dr. Adeleye diagnosed N.W. with trichomonia-sis, a disease that is spread only through sexual intercourse. He testified that tricho-moniasis is treated with a single dose of medication, which is how N.W. was treated. According to Dr. Adeleye’s testimony, one dose cures the patient. On cross-examination, Dr. Adeleye testified that he had never tested or treated Ashford for an STD, but that he could have been treated elsewhere.

¶ 9. Marjorie testified that she had dated Ashford off-and-on for ten to fifteen years and that he lived with her during that time. She testified that N.W. came to her house often, that she sometimes spent the night, and that she sometimes slept in the bed with Marjorie and Ashford. Marjorie stated she is a heavy sleeper and that it would be hard to wake her. She testified that in May 2012, she and Ashford were not having a sexual relationship “because of his infidelities.” When Marjorie told Ashford by phone about N.W.’s allegations, he was not home. He said he would come by but he never returned. He left all of his belongings in Marjorie’s house. According to Marjorie, Ashford did not work during the time he and she were together until the last six months, when he started working with her father. When asked if she felt like she needed to get tested after the allegations came out, Marjorie said, “No ... because me and Kelvin Ashford wasn’t sexually active; so why should I get tested?” On cross-examination, ■ Marjorie stated she and Ashford began having a sexual relationship when she was seventeen (sometime in 1998), but that he did not begin staying with her until 2008. She again stated that Ashford did not have a job between 20Ó8 and 2012. If Ashford worked for hospice during the times he would visit-his grandfather, Marjorie stated she did not know it. Marjorie also confirmed she knew Ashford was seeing other women 'during the time they were together. She also testified that it was not uncommon for N.W. to '.stay with her every night of the week during 2008-2010. Finally, Marjorie testified that the last time she had sex with Ashford was the middle of April 2012, two to three weeks before the allegations came out, and that she did not get tested for STDs, On redirect, Marjorie stated there were times when Ashford stayed with another woman or with his father, but that it was only a'couple of -' periods of four-to-five-days’ duration. Marjorie did hot find it impossible that Ash-ford had' sexually assaulted N.W. with' Marjorie asleep in the bed because there were times when all three of them were in the bed and Marjorie is a heavy sleeper.

■ ¶ 10. Sonya Graham, the chief executive officer of North Oak Hospital, testified that there was no record of Ashford applying for a job at the hospital and that STD testing is not part of the hiring process. The hospital tests potential employees- only for tuberculosis,, rubella, and drugs. On cross-examination, she agreed with defense -counsel' that Ashford may have gotten an application and just never turned it in, to explain the lack of record.

¶ 11, N.W.’s other aunt, Jessica Willie, testified that Ashford and Marjorie started living together in either 2008 or 2009. She stated anytime her family got together for' a function, Ashford was always there. According to her, Ashford did not work, so he stayed home cooking, cleaning, and taking care of all the children. Jessica described a time when she walked in on N.W. and Ashford laying in the bed in a “spooning” position, but on top of the covers, with space between and wearing clothes. She told Marionette and Marjorie about the incident, but they told her to leave it alone, that they did not think anything was going, on.

¶ 12. N.W.’s grandfather, Willie Willie, testified that when Marjorie was dating Ashford, he saw Ashford nearly every day. Willie stated Jessica also told him about ■the incident in the bed, but that he disregarded it as well because Jessica “likes to keep confusing and deviling going.” Willie got Ashford a job in 2012 with a mowing service. Ashford never returned to work after May 7, 2012. Willie admitted on cross-examination that he had made several statements that could been seen as death" threats toward Ashford to explain why he never retrieved his belongings or returned to work. Willie also testified that Ashford moved in with Marjorie three to four years before the allegations came out in 2012.

¶ 13. At this point, the State rested. The defense moved for a directed verdict, arguing the State had failed to meet its burden of proof. That motion was overruled.

¶ 14. The defense’s ■ first witness was Ruby-Tate, Ashford’s mother. She testified that Ashford had stayed with her in 2007 and that all his belongings were at her house. Ashford had stayed with her the first foravto-six months of 2008 because she had been recovering from a heart attack. In June 2009, Ashford began staying with his grandfather some because his grandfather had Parkinson’s and Alzheimer’s Diseases, but he continued his residence at Ruby’s. According to Ruby, Ash-ford dated Shirley Mabrey for two years beginning in 2007. He then dated Tina Gardner off and on for about two -years. Ruby first heard Marjorie’s name in 2009 or 2010 when Ashford began spending the night at Marjorie’s. Ruby testified Ashford stayed with another girlfriend, a different Tina, from 2010 to 2012. Ruby was asked if Ashford worked between 2007 and 2012. She responded that he worked for hospice and a lawn service. But she testified he worked for hospice for only about six months. While he was working with hospice, he stayed with his grandfather during the day and returned to Ruby’s at night “every day.” She testified he worked in lawn service during the summers of 2010 and 2011.

¶ 15. Next, Ashford’s aunt, Gail Hawkins, testified that from sometime in 2007 to sometime in 2008, Ashford was in and out, helping take care of her father, who suffered from Parkinson’s and Alzheimer’s. Ashford sometimes sat with him during the day, sometimes at night, just whenever he was needed. Gail testified that most nights, Ashford stayed with her helping take care of her father. During the day he was “in and out, back and forth.” Gail stated she had seen Marjorie, Kelvin, and the children together at Walmart on occasion, but that to her knowledge, he had continued living with Ruby.

¶ 16. Ashford’s sister, Crystal Burton, testified he dated Mabrey until 2008, followed by Tina Gardner and Tina Draper. She said he dated Marjorie as well, but that it Was just an “occasional relationship.” He dated Gardner for two years and then dated Draper and Marjorie -at> the same time. According to Crystal, Ashford worked with hospice in 2007 keeping their grandfather and at some point worked in construction with Tony Jones. Crystal said she knew the Willies very well, that-the children called her Aunt Crystal, but that Ashford never had stayed with Marjorie. Crystal testified that Marjorie had told her Marjorie was going to get tested for STDs. According to Crystal, Marjorie had 'told her that she went to the health department and “didn’t have anything.” On cross-examination, Crystal stated she never told law enforcement officials about Marjorie saying she had tested negative for STDs because no one had asked. However, she claimed she told defense counsel back in 2012 when Ashford first sought representation.

¶ 17. The defense then called Tina Draper, who testified that she had dated Ash-ford from April 2010 to August 2012. During that time, Ashford typically stayed with Ruby during the week and with Draper on the weekends. Occasionally, Draper would pick up Ashford at Marjorie’s house. Draper testified that she ánd Ashford were sexually active during that time but that she never had ah STD and never knew Ashford to have one. During the time they dated, Draper knew Ashford worked for a lawn service. Draper testified she sometimes picked up Ashford at Marjorie’s because he kept the children there. Draper said' she was sexually active only with Ashford and that she tested negative for STDs in July 2012.

IT 18. Finally, Ashford testified in his own defense. According to Ashford, he was living with Ruby in 2007 until late 2010 when he began living with Draper. He denied ever staying continuously with Marjorie. However, he admitted to staying at Marjorie’s during the week in 2011 and 2012 because it was closer and more convenient for him to get to work from Marjorie’s. During that time, he was working seasonally for the lawn service. Ashford testified that on May 7, 2012, he had gone with one of Marionette’s relatives to get an application at North Oaks Hospital. While there, Marionette called the relative to pick up N.W. from school. The relative left the hospital, picked up N.W. at school, and came back to the hospital to get Ashford. Ashford took the application with him and was dropped off at Marjorie’s. A friend picked him up and he left. He was gone when he got the call from Marjorie about N.W.’s allegations. Ashford stayed in Tuni-ca until Crystal told him Detective Sanders wanted to talk to him. He went to the police station and gave a recorded statement. According to Ashford, in the early 2000s, he was working for Metro Foods. Then he went to Lucite International as a forklift operator. After that, he worked in construction for Tony Jones before taking a job at Walmart in Batesville, where he worked in -loss-prevention before being promoted to service manager of the tire and lube express. However, he later testified that, at the time of his arrest on December 19, 2012, he was working at Tri-Lakes Hospital. When he got out on bond, he went to work at Walmart, first in the garden center, then in loss-prevention, and finally as tire and lube service manager.

¶ 19. Ashford denied having any sexual or inappropriate contact with N.W. He stated Marjorie was easy to wake up. He denied ever sleeping in the same bed with N.W., regardless of whether Marjorie was present or not. He stated he saw N.W. only on holidays, birthdays, and other spe-dal occasions. He denied ever having an STD. Ashford testified he never spent any time in 2007, 2008, or 2009 with Marjorie. In 2010, he and Marjorie started talking. Though he was still seeing and staying with Draper, he started going to Marjorie’s during the week to be closer to work. According to Ashford, he never volunteered to keep any of the children and was never alone with N.W. However, he did admit to taking Marionette and her children to Le Bonheur and driving back with just N.W. in the car. This occurred in either January or February of 2012, when N.W. was fourteen years old. He denied trying to mess with or touch her in any way or that they were having sex going down the road. On cross-examination, Ash-ford denied ever being alone with N.W. He admitted that N.W. had spent the night at Marjorie’s with Ashford present. He reasserted that he did not see Marjorie until 2010 and that, even then, they were simply “sex partners.” He testified he started working for the seasonal lawn service in 2011 and worked in construction as needed for Tony Jones before that. Ashford denied ever agreeing to pay for an abortion but admitted to agreeing to help “in any way possible.”

¶ 20. After Ashford’s testimony, the defense rested. Following deliberations, the jury found Ashford guilty on all counts. Ashford then filed a motion on April 28, 2015, for judgment notwithstanding the verdict (JNOV) as to count three or in the alternative, a motion for new trial. In the motion, Ashford alleged that the verdict was not supported by evidence, that it was contrary to the weight of the evidence, and that he had newly discovered evidence that would produce a different result at a new trial. Ashford alleged that, following trial, N.W. posted on Facebook that she had been forced to lie. Two days later, he filed a motion requesting a subpoena duces te-cum directed to Facebook to produce Fa-cebook pages belonging to N.W., Marionette, Marjorie, and Jessica.

¶21. A hearing was held on June 10, 2015, regarding the post-trial motions. At that first post-trial hearing, the trial court granted the motion for a subpoena duces tecum and held the motion for JNOV or new trial in abeyance per Ashford’s request. At that hearing, Ashford offered a post he attributed to N.W. “wherein she recants her testimony and says that she was lying.” Ashford also claimed to have text messages from Jessica describing a scheme to have him convicted for leaving Marjorie for another woman. According to Ashford’s counsel, the Facebook post was provided by some third party to Ashford’s wife, who was hospitalized in Tennessee and unable to attend the hearing. The State countered that if questioned, N.W. would deny making the post' alluded to by Ashford. In. regard to the subpoena requested, the State requested that the subpoena be expanded to include Crystal’s Facebook page, for Crystal had acknowledged the existence of fake profiles to create drama between the families. That request also was granted. The court granted the subpoena duces tecum in the interest of justice so the evidence could be “properly explored and given whatever value it ought to be given.” The subpoena was issued on July 7, 2015.

¶ 22. Facebook responded to the subpoena duces tecum by letter dated July 16, 2015, informing defense counsel that the Stored Communications Act exempted it from state subpoena powers. In the same correspondence, Facebook informed her of two alternative means of retrieving the information sought: (1) subpoena the information directly from the individual users or (2) work with the prosecutor to secure a search warrant. Ashford chose to issue subpoenas directly to Marjorie, Jessica, Marionette, and N.W. The trial court granted that request on October 7, 2015. The respondents were to produce the requested pages to the court on October 16, 2015.

¶23. At the October 16 hearing, Ash-ford’s counsel acknowledged receipt of the information- requested in the motion for subpoenas duces tecum from everyone except N.W. The State informed the court that N.W.’s Facebook pages had been placed in the court file. When those pages could not be found in the court file, the State provided Ashford a printout of N.W.’s Facebook page that Detective Sanders had obtained voluntarily from N.W. after Ashford filed his first motion for JNOV or new trial on April 28, 2015. The State had N.W. review the pages produced by Detective Sanders to determine if they were identical to those N.W. had brought to the court that day and that N.W. would testify that they were identical. Defense counsel took issue with those pages. The court specifically asked N.W. if she had brought her pages to court that day. She said she did, and she had given them either to Sanders or to the prosecutor. The court then inquired of the prosecutor what she had done with N.W.’s pages. She replied that she had furnished N.W.’s pages to the sheriff at Ashford’s counsel’s request. Ashford’s counsel confirmed the State’s version of events.

¶ 24. No further action was taken that day other than setting Ashford’s sentencing hearing for October 27—eleven days later. The court unequivocally stated that the 27th was for sentencing only and imposed an October 20 deadline for filing any other matters. No other motions or matters were brought to the court’s attention by the October 20 deadline.

¶ 25. On the 27th, the court opened the hearing by stating,

The last time we were here, which I believe was October 16, the court announced that all discovery or any other matters pertaining to this case would be brought on or before the 20th. Nothing’s been brought to my attention by the 20th, so the court is ready for sentencing.

The State announced ready. Ashford’s counsel responded to the court that she had filed a motion to withdraw on the 21st (after the 20th deadline) because a dispute had arisen between her and Ashford on that date and that Ashford was unwilling to take her advice any longer. Particularly, counsel stated that had she known that the situation would arise, she would have filed it on the 20th, “but it didn’t arise before the 21st.” The court denied the motion to withdraw and instructed the State to pro- • ceed: ■

[The State]: I didn’t'know if [defense counsel] was going to go through her post-trial motions first, Your Honor.
The Court: I announced the other day that we would have sentencing today.
[The State]: Yes, sir.
The Court: That’s all I’m going-to hear today is sentencing. I’m not going to hear post-trial motions. I’m not going to hear any other motions. I!m not going to hear anything but sentencing.
[The State]: Yes, sir.
The Court: I set a date. I meant what I said last time. All right. -
[The State]: Will the Court' entertain witnesses, Your Honor, or just argument?
The Court: I’ll allow witnesses if it pertains to sentencing.

¶26. The State called N.W., who testified her trial testimony was true, that she had not recanted her trial testimony, and that she had not posted anything on Face-book about lying during trial. When questioned regarding the impact of Ashford’s crimes on her as the victim, she explained to the court that she was being ridiculed at school, that she feared men, and that she felt “worthless” as a result of what Ash-ford had done to her. She requested he' receive the maximum penalty. On cross-examination, N.W. identified Faeebook printouts without the alleged recantation as her pages, and. denied posting what Ashford claimed she had. N.W. further maintained that Ashford did not work when he was seeing Marjorie in 20Ó7. On cross-examination, defense counsel had her review .a document purportedly showing that Ashford had worked for or through Select Staffing from December 6, 2006, to January 7, 2008. On redirect, the State presented N.W. with printouts containing the same text identified in footnote 10 but with different pictures and different picture locations. N.W. agreed that, while she was the person in the pictures, those printouts were not from her Facebook page. She testified she had seen three other accounts purporting to be hers, but she did not create or post any of them. N.W. also pointed out that when she typed a person’s name in Facebook that she was Mends with, Facebook would automatically bold that person’s name. N.W. stated she was friends with Jessica on Facebook. However, in .the disputed posts containing the text identified in footnote 10, Jessica’s name was not bolded.

¶27. Marionette testified that at some point, she received a phone call from someone identifying herself as Amanda Bailey, claiming to be from the district attorney’s office, and requesting N.W.’s Facebook information, age, and teachers’ names. She claimed she did not know an Amanda Bailey, did not know if she worked at the district attorney’s office, and did not check to see if she worked there. With that, the State rested.

¶ 28. Ashford countered with his sister, Crystal Burton. Crystal testified that Ash-ford had resided with Marjorie off-and-on, but she did not know the actual length of time. She also stated Ashford worked off- and-on at Walmart, doing landscaping, and with Tony Jones. She did not recall him being with Select Staffing. While he worked with hospice with their grandfather, he was staying some with the grandfather, some with Ruby, and some with Marjorie. She then testified to seeing the contested recantation post on Facebook. She also stated that an envelope was left on her car two days after trial containing an anonymous note which described a scheme to get Ashford convicted because he was cheating on Marjorie. Also contained in the envelope was a photocopy of a phone open to text messages implying that Ashford* may be innocent “but no one will ever know.” The messages also stated ,“[t]hat mf playboy .won’t hurt my sis again.” Crystal believed the phone number the messages came from belonged to Jessica because the number matched the one Jessica posted as her phone number on Facebook.

¶ 29. Crystal testified she gave the packet to defense counsel two days after receiving it, but that she had no idea where it came from or whose phone was depicted in the photocopy. She stated she took the documents to Detective Sanders the week before the- sentencing hearing to try and get them fingerprinted. According to Crystal, defense counsel was supposed to be trying to get the phone records from the number in the photos. On cross-examination, it was pointed out that there were no reply messages in the text chain. Crystal stated she believed the person who owned the phone had deleted their messages before copying. Crystal admitted to posting on Facebook an. acknowledgment that someone had created a fake profile “to keep up drama.” Again, Ashford’s wife allegedly was ill and unavailable.to testify as to how she first acquired the contested recantation post.

¶30. Just before defense counsel began to redirect .Crystal, the .court interjected:

Y’all would, do me a great service if y’all would get off all this Facebook stuff. I don’t know what good it’s doing. This is not a motion for a new trial. This is .not a motion to set aside a verdict, I don’t know where we’re going with all this, but y’all would service me greatly if you would go on and get off this Facebook.

The defense rested.

¶ 31. The trial court sentenced Ashford to twenty years each on counts one through four and six through nine, and five years each- on counts five and ten. The sentence for count five was to run consecutively to count one. All other sentences ran concurrently. The court denied Ashford’s post-trial motions. Subsequently, by agreed order, Ashford received substituted trial counsel, who also filed a new motion for JNOV or, in the alternative, motion for new trial. That motion likewise was denied. .Ashford appealed.

ISSUES

¶ 32. Ashford raises the following issues on appeal, which have been restated for clarity:

I. Whether the trial court erred in -its consideration of the evidence Ash- . ford sought to present during post-trial hearings.
II. Whether the evidence presented at trial was sufficient to support the verdict.
III. Whether the verdict was against the overwhelming weight of the evidence. :
IV. Whether Ashford received ineffective assistance of counsel.

ANALYSIS

I. Wdiether the trial court erred in its consideration of the evidencé Ash-ford sought to present during post-trial hearings. '

1133. We review a trial court’s denial of a motion for new trial based on newly discovered evidence for an abuse of discretion. Moore v. State, 508 So.2d 666, 668-69 (Miss. 1987).

If perjury was committed, the defendant will be entitled to a new trial only if four factors are met. First, it must appear that the perjured testimony will probably change the result if a new trial is granted. Second, the perjury -must have been discovered after the trial. Third, the perjury must not have been discoverable before the trial by the exercise of due diligence. Fourth, the perjury must be on an issue that is material to the case and not be merely cumulative or impeaching.

Brown v. State, 890 So.2d 901, 917 (Miss. 2004).

¶ 34. Ashford argues the trial court abused its discretion when it failed to consider evidence that N.W. committed perjury and takes issue with the language used by the trial court in its order. Specifically, the order reads as follows:

This day this matter came on for hearing upon the Defendant’s Motion for J.N.O.V. or, in the Alternative, Motion for New Trial in the above styled and numbered cause; and the Court, after hearing argument of counsel, and being fully advised in the premises, is of the opinion that said motion is not we}l taken and should be overruled.

Ashford argues that, because defense counsel was cut off from presenting further Facebook evidence during the sentencing hearing, the trial court did not in fact hear argument of counsel and was not fully advised in the premises. According to Ashford, the trial court denied his motion based on a partial presentation of the evidence and thus abused its discretion.

1135. We find the trial court based its ruling on the evidence received throughout the proceedings, up to and including all filings and argument presented to the court on or before the October 20, 2015, deadline. The court was explicit that the hearing on October 27 was a- sentencing hearing. The court gave the parties until October 20 to file any additional motions or bring any other matters to the court’s attention. Furthermore, defense counsel’s statement that she would have presented her motion to withdraw by the twentieth had the issue arisen in time further evidences her understanding that all nonsen-tencing matters were due on or before October 20, 2015. At the hearing on the twenty-seventh, the court again made clear that it was there for sentencing and sentencing only. The court gave counsel for both sides considerable leeway when they began introducing evidence of Facebook and alleged recantation. In time, however, the court reminded the attorneys that they were not there arguing a motion for a new trial or to set aside the verdict and that it did not see how the Facebook evidence was relevant to sentencing.

¶ 36. Prior to October 20, the trial court had been provided a copy of the alleged recantation post and a copy of Marjorie’s, Jessica’s, Marionette’s, and N.W.’s Face-book pages. At the prior hearing on June 10, the court had been informed that N.W. would deny making the alleged recantation statement and that Crystal, Ashford’s sister, had knowledge of fake Facebook pages being created to “continue an ongoing drama between these two families.”

¶ 37. Throughout these proceedings, the court was informed that N.W. had denied creating the posts averred by Ashford to be the basis for his motion for a new trial. Thus, the trial court did not err in denying Ashford’s motion for a new trial based on newly discovered evidence. Whether based on the information before the court by the October 20 deadline, or including that which was developed at the October 27 sentencing hearing (there being no substantive difference), Ashford never established any newly discovered evidence. We cannot say that the result would be different if a new trial were granted. See Brown, 890 So.2d at 917; see also Howell v. State, 989 So.2d 372, 384 (Miss. 2008) (“As a general rule, recanted testimony is exceedingly unreliable, and is regarded with suspicion; and it is the right and duty of the court to deny a new trial where it is not satisfied that such testimony is true.”). Here, no recanted testimony was established.

¶ 38. As to Ashford’s argument that the trial court had erred in enforcing the October 20 deadline, this Court affirmed a trial court’s ability and authority to enforce known deadlines: “It may be that people will miss fewer trains if they know the engineer will leave without them rather than delay even a few seconds.... At some point the train must leave.” Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1042 (Miss. 2003) (quoting Guaranty Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 388-89 (Miss. 1987)). While the Court was addressing enforcement of scheduling orders, the language is aptly suited to the case at bar.

II. Whether the evidence presented at trial was sufficient to support the verdict.

¶ 39. We review challenges to the legal sufficiency of the evidence de novo. Brooks v. State, 203 So.3d 1134, 1137 (Miss. 2016). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.

¶ 40. Ashford argues the State failed to prove that he penetrated N.W.’s vagina as charged in counts one and six. As to counts seven through ten, he argues the State failed to prove he fondled or sexually battered N.W. while she was fourteen years old. And regarding count nine, Ashford further argues the State failed to prove he had performed oral sex on N.W.

¶ 41. Slight penetration of the vulva or labia is sufficient to constitute penetration. Bateman v. State, 125 So.3d 616, 623 (Miss. 2013). The jury received evidence detailing the sexual acts Ashford committed against N.W. or forced her to perform. Her testimony was supported by her prior statement to Detective Sanders, which was admitted into evidence without objection. The record contains more than sufficient evidence to dispel the defendant’s argument and supports his convictions. In addition to her description of the sexual acts, N.W. stated the last time she and Ashford had sexual contact was two to three months prior to her May 7, 2012, statement. As further evidence of vaginal penetration, N.W. was diagnosed with an STD that .caused her to have a vaginal discharge. She testified the only, person with whom she was sexually active was Ashford. Dr, Adeleye testified, the STD could be transferred only thrpugh sexual intercourse.

¶ 42. N.W. testified Ashford first started toüching and sexually abusing her when she was nine years old, and that the abuse had continued for four to five years straight, from ages.nine to fourteen. She said he had touched her with his hand and his penis, and that he had kissed her vagina. In her statement, N.W. indicated the last time she and Ashford were sexually active was two to three months prior to May 2012, which would have occurred during a time when N.W. was fourteen years old. In addition to testifying that the acts occurred continuously from the time she was nine to fourteen years old, she also stated she and Ashford had had some sexual contact together more than a hundred times. N.W. alleged she and Ashford had some sexual contact in a car going down the road. And Ashford admitted tó being in the car alone with N.W. in either January or February of 2012.

¶ 43. We find that, viewing the evidence in the light most favorable to the verdict, the verdict was supported by substantial evidence.

III. Whether the verdict was against the overwhelming weight of the evidence.

¶44. We review'the denial of a motion for a new trial based on an objection to the weight of the evidence for an abuse of discretion and “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Kirk v. State, 160 So.3d 685, 697 (Miss. 2015).

¶45. Ashford argues N.W.’s version of events was simply incredible. For one, he asserts it cannot be believed that he had sex with N.W. while Marjorie and two other children were in the bed with them, nor that he sexually assaulted her in every room of the house while people were present. Second, he finds it preposterous that he committed sexual acts against N.W. every single day from 2007 through March or April of 2012. He also argues N.W.’s testimony that he did, not work was' contradicted by his trial witnesses. Finally, he argues the fact that Marjorie and Draper did not contract an STD from him belies N.W.’s allegations.

¶46. Ashford mischaracterizes N.W.’s testimony. When describing the incident in which Ashford sexually assaulted N.W. while Marjorie also was in the bed, N.W. never said any other people were in the bed with them. She did say that, on occasion, the other children slept in the bed with Marjorie as well. Marjorie confirmed that sometimes the other children slept with her, and that there were times when she, N.W., and Ashford slept in the bed together. While Ashford testified Marjorie was easy to .awaken, both N.W. and Marjorie testified'she was a heavy sleeper. N.W. said she patted and bumped Marjorie but she did not wake up. Marjorie stated she. would be hard to wake up. According to N.W.’s testimony, sometimes there were people in other parts -of the house while Ashford was sexually abusing her; sometimes it was just the two of them. But when people were present, they were in other parts of the house or outside playing.

¶ 47. Nor do we understand N.W.’s testimony to be that Ashford abused her every single day. She stated he committed sexual acts against her more' than a hundred times—considerably less than every day for four to five years. We read N.W.’s testimony to be that Ashford committed the acts every chance he had—when he was around N.W. and when the opportunity presented itself. As to his work history, all agreed that Ashford worked for a seasonal lawn service in 2011 and 2012. Ash-ford’s witnesses testified he worked in hospice for about six months in 2008, but even his own mother remembered him working-for hospice and the lawn service only between 2007 and 2012.

¶ 48. Crystal, Ashford’s sister, said that Marjorie said she had gotten tested and was negative. However, Marjorie testified that she never got tested. Draper did not testify as to the last time she and Ashford had sex but -stated she got tested in July 2012. Dr. Adeleye testified that the STD could be treated and cured with a single dose of medication. Though Adeleye did not treat Ashford, he testified he easily could have been treated elsewhere.

¶49. The crux of Ashford’s weight-of-the-evidence argument hinges on witness credibility. “This Court has also held that it is in the province of the jury to determine the credibility of witnesses. Any questions regarding the weight and worth of witness testimony or witness credibility are for the jury to resolve.” Williams v. State, 757 So.2d 953, 957 (Miss. 1999) (internal citations omitted). Viewed in the light most favorable to the verdict, the evidence does not preponderate so heavily against the verdict that to,allow it to stand would sanction an unconscionable result.

IV. Whether Ashford received ineffective assistance of counsel.

¶50. To succeed on an ineffective-assistance-of-counsel claim, the defendant must show that (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense, Puckett v. State, 879 So.2d 920, 935 (Miss. 2004) (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984)). “There is a strong but rebut-table presumption that trial counsel was competent and performed within the wide range of reasonable conduct expected from counsel.” Wilson v. State, 194 So.3d 855, 862 (Miss. 2016). The burden is on the petitioner to rebut the presumption by showing that counsel’s performance did not meet the constitutional standard established in Strickland. Id.

¶ 51. Ashford alleges his trial counsel provided ineffective assistance by (1) failing to investigate newly, discovered evidence after trial, (2) failing to present testimony of Ashford’s work history during trial, (3) failing to present evidence on post-trial motions by the October 20 deadline, and (4) eliciting damaging testimony on N.W.’s cross-examination. Ashford argues defense counsel’s failure to obtain search warrants to get posts from Face-book and the phone records of the phone number that purportedly sent text messages concerning a scheme to get Ashford convicted was constitutionally deficient performance. According to Ashford, counsel’s decision “prejudicially affected the outcome of his post-trial motions as a whole, by wholly eliminating his opportunity to present possibly exculpatory evidence.”

¶ 52. These claims are without merit. Ashford claims the text messages carné from Jessica. At the sentencing hearing, Crystal testified she knew the number was Jessica’s because it matched her phone number on Facebook. There was no evidence or testimony to the contrary. At the same time, trial testimony established that Jessica had a reputation for causing drama and stirring up trouble. As for counsel’s failure to secure a search warrant for Fa-cebook, Facebook’s counsel informed defense counsel that she could either secure a search warrant for the corporate office or subpoena the records from the individual users. Defense counsel chose the latter option. Facebook provided Ashford’s counsel with two options to obtain the information. She chose one of those options. We find counsel’s decision did not amount to deficient performance, nor has Ashford shown the prejudice required by Strickland.

¶ 53. Ashford argues defense counsel should have presented the Select Staffing documents during trial instead of waiting until the sentencing hearing. Had the documents of which Ashford now complains been admitted into evidence, they offer no probative or relevant information which would exonerate him from the crimes for which he was convicted. Other testimony reveals large gaps of undisputed, long-term unemployment. Counsel’s failure to present the Select Staffing documents during trial does not establish ineffective assistance.

¶ 54. To the extent Ashford argues counsel’s failure to present additional evidence to the trial court by the October 20, 2015, deadline was ineffective assistance, neither, the deficient-performance nor the prejudice prong has been satisfied. As discussed in Issue I, N.W. denied posting a recantation. Furthermore, the State presented evidence that fake profiles of N.W. existed. Ashford failed to offer “newly discovered evidence” sufficient to warrant the granting of a new trial. He offered no substantive evidence to support a claim of newly discovered evidence. The trial court conducted three separate post-trial hearings—culminating in a sentencing hearing. At the first hearing, defense counsel and the trial court had been informed that N.W. would deny making the post in which she allegedly recanted her trial testimony. N.W. was available to testify to that effect. Thus, defense counsel knew that the post would, at best, serve only to contest N.W.’s testimony. At the second hearing, not only were N.W.’s original Fa-cebook pages provided to Ashford by the State through Detective Sanders, Ashford also received Facebook pages from Jessica, Marionette, and Marjorie. The court gave Ashford an additional four days to review the documents and to file any additional motions. We find defense counsel’s decision not to continue pursuing a new trial based on a disputed recantation post—soundly denied by the alleged recan-ter—does not amount to ineffective assistance of counsel. See Liddell v. State, 7 So.3d 217, 219-20 (Miss. 2009) (“In considering a claim of ineffective assistance of counsel, an appellate court must strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance, and the challenged act or omission might be considered sound trial strategy. In other words, defense counsel is presumed competent.”).

¶55. Finally, Ashford argues defense counsel’s cross-examination of N.W. amounted to ineffective assistance of counsel by establishing the only evidence in the record that pointed to vaginal penetration and age. Particularly, Ashford faults defense counsel for asking N.W. to describe his penis without asking Ashford to confirm or deny that description.

¶ 56. However, during cross-examination, counsel essentially questioned N.W. line-by-line on her statement to Detective Sanders, which already had been admitted into evidence. Thus, that part of the cross-examination did not add anything that was not already before the jury. Ashford repeatedly denied having any sexual contact with N.W. and stated she never saw him naked. If that were so, N.W. would not have been able to describe his penis when asked by defense counsel. But she did. Ashford faults defense counsel for not asking him to confirm or deny that description. Yet he fails to tell this Court how his description would differ from that given by N.W. Not knowing what his answer to that question would be, we cannot say that counsel’s actions prejudiced his ■ defense.

CONCLUSION

¶ 57. For the reasons stated, we find Ashford’s claims of error are without merit. The judgment and sentences of the Tate County Circuit Court are affirmed.

¶ 58. COUNT I: CONVICTION OF SEXUAL BATTERY OF A CHILD UNDER THE AGE OF FOURTEEN (14) AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF SEXUAL BATTERY OF A CHILD UNDER THE AGE OF FOURTEEN (14) AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF SEXUAL BATTERY OF A CHILD UNDER THE AGE OF FOURTEEN (14) AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IV: CONVICTION OF SEXUAL BATTERY OF A CHILD UNDER THE AGE OF FOURTEEN (14) AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT V: CONVICTION OF FONDLING AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT VI: CONVICTION OF SEXUAL BATTERY OF A CHILD AT LEAST FOURTEEN (14) BUT UNDER SIXTEEN (16) YEARS OF AGE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT VII: CONVICTION OF SEXUAL BATTERY OF A CHILD AT LEAST FOURTEEN (14) BUT UNDER SIXTEEN (16) YEARS OF AGE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT VIII: CONVICTION OF SEXUAL BATTERY OF A CHILD AT LEAST FOURTEEN (14) BUT UNDER SIXTEEN (16) YEARS OF AGE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IX: CONVICTION OF SEXUAL BATTERY OF A CHILD AT LEAST FOURTEEN (14) BUT UNDER SIXTEEN (16) YEARS OF AGE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT X: CONVICTION OF FONDLING AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES IN COUNTS II, III, IV, VI, VII, VIII, IX, AND X ARE TO BE SERVED CONCURRENTLY WITH SENTENCE IN COUNT- I. SENTENCE IN COUNT V IS. TO BE SERVED CONSECUTIVELY TO SENTENCE IN COUNT I. SENTENCES IN VIH AND X ARE TO BE SERVED CONCURRENTLY WITH SENTENCE IN COUNT V. IN COUNT I, APPELLANT SHALL PAY $1,000 TO THE MISSISSIPPI CHILDREN’S TRUST FUND, $1,000 FINE, $200 TO THE DISTRICT ATTORNEY’S OFFICE AND ALL COURT COSTS. APPELLANT SHALL RECEIVE CREDIT FOR 276 DAYS SERVED WHILE AWAITING TRIAL.

WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

      . Initials will be used in place of the child-victim’s full name. N.W. was seventeen years old at the time of trial.

      . Ashford is often referred to throughout the record by his nickname, "Boóman.”

      .Given the specific nature of this case and the age of the victim, suffice it to say that we have thoroughly reviewed the record, which discloses that the jury heard evidence that Ashford took liberties against this young lady encompassing multiple types of sexual abuse.

      . Marionette is often referred to throughout the record by her nickname, "Nikki.”

      . N.W. had been molested by another individual when she was six years old.

      . The video was admitted into evidence without objection as Exhibit 5 and was played to the jury.

      . Marionette likewise had testified earlier that Jessica “like[s] to keep up messing; so we didn’t believe her,” She confirmed that “keep up messing” meant "trying to stir'Something up.”'

      . Each count described specific acts of sexual battery and fondling at specific ages—the details of which are not necessary to relate in this opinion.

      . 18 U.S.C. § 2701, etseq.

      . . The post at issue allegedly read:
      1 don’t care what happen to me. I hate this other person inside of me. -1 am tired of all the nightmares an no sleep because I were made to lie. I am mad at jessica for posting stuff. This is not about me it about her. No one listen. I didnt want to -go to court and lie on booman. I was happy it got thrown out at first because I didnt want people talking about me.Jessica fault. I just want some peace. Yall are the one who make me want to hurt myself. I ask jessica to take it down but she wont
      Sentencing Exhibit 2 (errors in original).

      . The State objected based on relevance and was overruled. Then the State objected based on authenticity, which went unanswered. The document was not entered into evidence and is not in the record.

      . Marionette did not say whether she gave the person N.W.’s information.

      . The subpoenas directed the pages to be delivered to the trial court. The court was in possession of the pages at the post-trial-motion hearing on October 16.

      . N.W. turned fourteen on January 20, 2012.

      . At the sentencing hearing, N.W. testified that she did not create the post.

      . As we find no errors, any claim by Ashford of cumulative error is without merit. See Harris v. State, 970 So.2d 151, 157 (Miss. 2007).


source: Caselaw Access Project

author: DICKINSON, PRESIDING JUSTICE,

license: Public Domain

text:
    Melvin POTTS a/k/a Melvin Joshua Potts a/k/a Melvin J. Potts v. STATE of Mississippi
    NO. 2015-KA-01377-SCT
    Supreme Court of Mississippi.
    06/08/2017

      ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HIN-CHCLIFF, GEORGE T. HOLMES, MELVIN POTTS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER
    BEFORE DICKINSON, P.J., COLEMAN AND BEAM, JJ.
   DICKINSON, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. Melvin Potts appeals his convictions of first-degree murder and motor-vehicle theft, arguing that the trial judge erred by-providing additional instructions to the jury, not declaring a mistrial when the jury stated it was deadlocked, and granting and refusing certain jury instructions. Potts further argues that insufficient evidence supported his conviction, and that his conviction was against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 21, 2014, Georgia Courtney received a phone call from Jackson State University informing her that her cousin— Dr. Garrick Shelton—had not shown up for work. Courtney went to Shelton’s home, where she found him dead. The Madison Police Department investigated and developed Melvin Potts as a person of interest, after his mother’s cell phone number appeared on Shelton’s recent phone records.

¶ 3. Potts’s mother told the police that Potts had used her cell phone and gave the police his address and description. The police were unable to locate Potts at his apartment but learned from neighbors that Potts had been seen with a large bandage on his hand, and that he had been driving a car that had broken down in front of a nearby apartment building.

¶4. Potts was located, arrested, and transported to the Madison Police Department. He was indicted for first-degree murder and motor-vehicle theft. At trial, Officer Jack David Williams testified that he found a knife on the floor of the bedroom where Shelton’s body was located and a large bloodstain on the bed’s comforter.

¶ 5. Rodney Erikson—captain of the Madison Police Department—testified that drops of blood were found on Shelton’s carport as well as on and around a knife on the kitchen floor. He further testified that police found a bullet hole entering the wall of the dining room and a “projectile” by the dining room table. Erikson testified that when he entered the bedroom containing Shelton’s body, he saw a pair of broken glasses laying on the floor. He also observed an area on the dresser where items appeared to be missing, a shell casing, and a bloody knife with a broken tip. Erikson testified that Shelton’s car and cell phone were missing from his home.

¶ 6. Detective Jon Cooley testified that, when interviewed, Potts stated that he had met Shelton on a website called “Tagged” about a month before the killing. Potts told Cooley that Shelton had picked him up and they had gone to Shelton’s home. Potts stated that he had been in the living room and Shelton had been in the kitchen when Shelton saw Potts had a'gun. Potts told Cooley that Shelton had then grabbed a knife, left the kitchen, and told Potts to. leave. According to Cooley, Potts told contradictory stories about how he had ended up in the. bedroom. One story was that he had followed Shelton to the bedroom sometime after Shelton left. Another story was that Shelton had “shot” to the bedroom and Potts had “shot” after |iim.

¶7. Cooley further testified that Potts had provided multiple stories to explain why he had stabbed Shelton. Potts first told Cooley that he had told Shelton he wanted to leave and Shelton “ran up on him.” Cooley testified that Potts also said he had been afraid Shelton was going to call the police. Cooley told the jury that Potts later said he had panicked and shot Shelton and then stabbed him with the knife. Cooley further stated that at one point Potts said Shelton had cut him with the knife. • ■

¶'8. Additionally, Cooley testified that Potts claimed to have shot Shelton in the chest, and he had stuck to this story after being told. otherwise. He further stated that Potts had admitted he had taken Shelton’s car, television, and game console. According to Cooley, Potts had said he had taken the game console for his little brother. When Cooley asked Potts why he did not call 911, Potts said he had been worried about the history of the gun. Finally, Cooley testified that Potts had sold the gun that was used in the shooting.

¶ 9. On cross-examination, Cooley stated that there were times in the interview when Potts said he had gone to the door of Shelton’s home as if to leave. Cooley also admitted that Potts .consistently had said, that he had shot Shelton only after Shelton cut him.

¶10. Erin Barnhart—the Deputy Chief Medical' Examiner—testified ■ that Shelton had been shot in1 the back, stabbed eighteen times, and -died as a result of “sharp forced injuries.” According to Barnhart, the eighteen knife wounds generally were on Shelton’s head and arms. She stated that several of the wounds resulted in fractures to Shelton’s cheekbone' and skull, and one resulted in the transection of two arteries in his’arm. Finally, Barnhart stated that she found a “metallic fragment adherent to [Shelton’s] skull.”

¶ 11; Joe Heflin—a forensic biologist for the Mississippi State Crime Lab—testified that blood found on the knife was “consistent with the [DNA] reference sample of Garrick Shelton.” He further testified that the droplets of blood found outside Shelton’s home “were consistent with the sample of ... Potts.”

¶12. Following the state’s case-in-chief, Potts moved for a directed verdict, which was denied. Thereafter, he testified in his own defense. Potts testified that Shelton had picked him up in Jackson, on May 21, 2014, and had brought him to his home in Madison County to engage in oral sex. According to Potts, Shelton saw that he had a firearm and became uncomfortable. Thereafter, Shelton grabbed a- knife from the kitchen and retréated to one of the bedrooms. Potts stated that he eventually had gone to the bedroom, and Shelton had asked him' to leave his home. Potts told the jury he had taken a nonthreatening step toward Shelton, and thereafter Shelton had “charged” him and cut his hand, Potts explained that he had become angry and “it came to [his] mind that [his] life was being threatened,” so he shot Shelton. He further stated that Shelton got up after being shot and came toward him. Thereafter, the two men began “tussling” over the knife, and during this altercation, Potts killed Shelton.

¶ 13. On direct examination, - Potts also admitted that he had taken Shelton’s car, television, game console, and video games. He testified, that he took Shelton’s car because he “didn’t feel safe” in Shelton’s home and “the key was in [his] sight.” He stated that he took the television, game console, and games because his fingerprints were on them.

¶ 14. On cross-examination, Potts admitted that Shelton had told him to leave multiple times. Potts also admitted that he had gotten angry after Shelton cut him, and at that time, Potts had been blocking the entrance to' the bedroom. Finally, Potts admitted that he could have gotten up and left the bedroom át any time.

¶ 15. At the close of the evidence, Potts ■renewed his motion for a directed verdict and moved for an application of the Weathersby rule; both of these motions were denied. The jury was then instructed on first-degree murder, second-degree murder, heat-of-passion manslaughter, and imperfect-self-defense manslaughter. The jury found Potts guilty of first-degree murder and motor-vehicle theft. The trial judge sentenced him to serve a life sentence for first-degree murder and a concurrent, ten-year sentence for motor vehicle theft. Potts filed a motion for a judgment notwithstanding, the verdict (JNOV), or in the alternative, a new trial, which was denied.

¶ 16. Potts now appeals, arguing that the trial judge erred by (1) providing additional instructions to the jury, (2) not declaring a mistrial when the jury stated it was deadlocked, and (3) granting and refusing certain jury instructions. Potts further argues that there was insufficient evidence to support his conviction and his conviction was against the overwhelming weight of the evidence.

ANALYSIS

I. The trial judge did not err in answering a question from the jury.

¶ 17. After roughly three hours of deliberations, the jury sent a note to the trial judge which stated: “What is the next step if we cannot unanimously find that the State has failed to prove all the elements of murder first degree?” The trial judge— with agreement from the State and the defense—questioned the jury foreperson regarding the jury’s deliberations. The jury foreperson indicated that the jury had reached a unanimous verdict on Count II, motor-vehicle theft, but not Count I, first-degree murder.

¶ 18. The following exchange took place between the trial judge and the jury foreperson regarding the first-degree-murder charge:

THE COURT: All right. Now as it relates- to Count I, I have the question here that you sent out, but right now I’m interested in this. As to Count I, during the course of your deliberations, have you taken more than - one vote?
MADAM FOREPERSON: Yes, sir.
THE COURT: Okay. And without telling me whether or not whether it’s guilty 'or not guilty or the numeric— what the breakdown is, during the course of your deliberations, have those numbers progressed to the point that you may reach—that you’ve gotten closer to a unanimous verdict?
MADAM FOREPERSON:’ I can say that we have. The stipulations are—
THE COURT: So it has progressed, the numbers have changed—
MADAM FOREPERSON: Yes, sir.
THE COURT: —closer toward a .unanimous one, -one way or the other?
.MADAM FOREPERSON: Right. But it’s not—
THE COURT: Okay. Now the question I’ve got for you is this. Do you think further deliberations can result in a unanimous verdict one way or the other on the issue of first degree murder?
MADAM FOREPERSON: ■ On the issue of the first degree charge?
THE COURT: Right.
MADAM FOREPERSON: No, sir. ■
THE COURT: All right, Thank you. I’m going to ask, if you will, return to the jury-room for a moment.

¶19. Following this exchange,' the trial judge and counsel for the State and defense discussed how the jury’s question should be answered. The State requested a Sharplin instruction and further deliberations. The defense opined that further deliberations were not necessary because the jury did not understand how to move past first-degree murder to consider lesser-included offenses. On agreement of both parties, the trial court sent the following response to the jury: “Pursuant to Instruction Number 8, you may not proceed to consider lesser charges unless you unanimously find that the State has failed to prove all of the elements of murder first degree.”

¶ 20. On appeal, Potts contends that the trial judge erred by not declaring a mistrial after he received notice that the jury was deadlocked. We find that the jury foreperson was not speaking as a representative of the jury when she stated further deliberations would not help. Instead, she was simply stating her own opinion in response to the judge’s question. Because she was not speaking for the entire jury at the time, this Court finds that the foreperson’s statement was not a report of a deadlocked jury.

¶ 21. Potts further argues that the trial judge erred in answering the jury’s question because he gave an additional instruction to the jury. The record reveals that Potts was given a number of opportunities to object to the trial judge’s response to the jury question, but he never did. This Court repeatedly has held that a failure to object contemporaneously at trial forfeits an issue on appeal. Because Potts failed to object, we find that he may not raise this issue on appeal.

II. The trial judge did not err in instructing the jury.

¶ 22. Potts next argues that the trial judge erred when he (1) granted instruction 8 regarding first-degree murder and the lesser-included offenses; (2) refused instruction D-2' regarding malice aforethought; (3) granted instruction C-6 regarding self-defense; and (4) refused instruction D-10 regarding reasonable doubt. “This Court reviews jury instructions under an abuse of discretion standard.” Additionally, the instructions must be read as a whole to determine if the jury was properly instructed. This Court will not reverse if the given instructions “ ‘fairly announce the law of the case and create no injustice.’ ”

Instruction 8

¶23. Instruction 8 was an “acquit first” instruction requiring the jury to decide unanimously that the State had failed to prove first-degree murder before considering lesser-included offenses. It also instructed the jury on first-degree murder, second-degree murder, heat-of-passion manslaughter, and imperfect-self-defense manslaughter. On appeal, Potts argues that it was error for the trial judge to include all four crimes in one instruction, and the instruction “caused a misconception of the law.” We find that his argument is without merit.

¶24. This Court never has addressed whether the charged offense and all of the lesser-included offenses can be included in the same jury instruction. However, the Court of Appeals has approved an acquit-first jury instruction containing the charged offense of aggravated assault and the lesser-included offense of simple assault. Further, this Court has approved the same “acquit first” language found in instruction 8. Finally, the language in the jury instruction accurately tracked the requisite elements of all the offenses contained in the instruction. So we find that the instruction did not misconstrue the law, and it was not error to include the charged offense and all lesser-included offenses' in one instruction.

Instruction D-2

¶25. Next, Potts argues that the trial judge erred by refusing his proffered instruction defining malice aforethought. We find that this issue is without merit because the definition of malice aforethought was adequately covered in given instruction C-7.

¶ 26. Jury instruction C-7 defined deliberate design and provided:

The court instructs the jury that “deliberate design” as it is used in these instructions, means an intent to kill without authority of law, and not being legally justifiable, or legally excusable. “Deliberate” always indicates full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences. “Design” means to calculate, plan, or contemplate. “Deliberate design” to kill a person may be formed very quickly, and perhaps only moments before the act of killing the person. However, a “deliberate design” can not be formed at the very moment of the fatal act.

¶27. The jury instruction additionally stated that “[t]he Court further instructs the jury that ‘deliberate design’ and ‘malice aforethought’ as used in these instructions have the same meaning.” This Court has long stated that “ ‘malice aforethought, premeditated design, and deliberate design all mean the same thing,’ ” and are “ ‘[d]ef-initionally ... synonymous.’ ” Additionally, this Court: has held that “synonymous phrases or interchangeable words may be used in a jury instruction and the jury still be properly instructed.” So the trial judge did not err by refusing Potts’s instruction because deliberate design was adequately defined in the giyen instruction.

Instruction C-6

¶28. Potts next argues that the trial judge erred when he granted jury instruction C-6 because it gave a wrongful interpretation of Mississippi’s justifiable homicide statute. However, the record reveals that Potts did not object to jury instruction C-6. This Court repeatedly has held that the failure to object contemporaneously to jury instructions at trial “ ‘procedurally bars the issue on appeal.’ ” Because' Potts failed to object to jury instruction C- 6, he is procedurally barred from raising this issue on appeal. ■

Instruction D-10

¶ 29. Finally, Potts argues that the trial judge erred when he failed to give his proposed instruction regarding reasonable doubt. But the record reveals this instruction was withdrawn by Potts’s attorney because reasonable doubt was adequately covered in other instructions. This Court “will not hold the trial court in. error for failing to give a withdrawn instruction.” So Potts is procedurally barred from raising this issue on appeal. ■

II. There was sufficient evidence to convict Potts and the verdict was not against the overwhelming weight of the evidence.

¶ 30. Potts next argues that the trial court erred when it denied his motion for a directed verdict.at the close of the prosecution’s ease-in-chief and the close of trial. “ ‘This Court reviews a trial court’s grant or denial of a motion for a directed verdict de novo.’

¶ 31. A motion for a directed verdict challenges the legal sufficiency of the evidence presented to the jury. When assessing the legal sufficiency of a conviction, this Court determines “ “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” We must reverse a conviction “[i]f facts and inferences considered by the Court ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.’ ”

¶32. Mississippi Code Section 97-3-19(l)(a) defines first-degree murder as “[t]he killing of a human being without the .authority of law by any means or in any manner ... when done with deliberate design to effect the death of the person killed, or of any human being.” Under Mississippi law, deliberate design “connotes an intent to kill.” This intent “‘may be formed very quickly, and perhaps only moments before the act of consummating the. intent.’ ” Additionally, where the defendant has not expressed his intent, “ ‘the only method by which intent may be proven is by showing the acts of the person involved at the time, and by showing the circumstances surrounding the incident.’ ”

¶ 33. “The jury is allowed ‘to draw reasonable inferences from facts based on experience and common sense.’”- “Further, ‘the jury is the sole judge of the credibility of witnesses, and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict.’ ”

¶ 34. Viewing the evidence “in the light most favorable to the prosecution,” we find that sufficient evidence supported the jury’s verdict of first-degree murder. The evidence presented shows that Potts chose to stay in Shelton’s home after being asked to leave numerous times. Further, Potts went into the bedroom knowing Shelton was uncomfortable and had a knife. Potts also admitted that he could have left the bedroom at any time.

¶ 35. And after shooting Shelton in the back, Potts stayed in the house and continued fighting rather than leaving the home. A reasonable juror could conclude that Potts formed the required intent in the moments before he shot and stabbed Shelton eighteen times. Additionally, after killing Shelton—rather than calling the police—Potts stole Shelton’s television and game console in an effort to remove his fingerprints from, the home. Although Potts testified he was acting in self-defense, the jury was free to disregard his version of events if it thought his testimony was not credible.

¶ 36. Potts also argues that the jury’s, verdict was against the overwhelming. weight of the evidence. When the weight of the evidence is challenged, this Court will not disturb a jury’s verdict unless “ ‘it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” “This occurs only if reasonable men could not have found the defendant guilty based on the evidence when it is viewed in the iight most- favorable to .the verdict.” Based on the evidence" discussed above, we conclude that Potts’s conviction was not against-the overwhelming weight of the evidence.

CONCLUSION

¶ 37. The trial judge did not err by answering a question from the jury or in instructing the jury. Further Potts’s conviction was supported by sufficient evidence and was not against the overwhelming weight of the evidence. Accordingly, we affirm.

¶ 38. COUNT I: CONVICTION OF MURDER-FIRST DEGREE AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF MOTOR VEHICLE THEFT AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THE SENTENCES IMPOSED SHALL RUN CONCURRENTLY WITH EACH OTHER. ALL TIME SERVED IN PRE-TRIAL DETAINMENT IS CREDITED AGAINST THIS SENTENCE.

WALLER, C.J., RANDOLPH, P.J.,: KITCHENS, KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

      . Weathersby v. State, 165 Miss 207, 147 So. 481 (1933) ("[W]here the defendant or-the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material- particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.").

        .Sharplin v. State, 330 So.2d 591, 596 (Miss. 1976) (A trial judge may give one of two instructions after learning that a jury cannot reach a unanimous decision. The judge may instruct the jury to "[pjlease continue your deliberations,” or the judge may state:
      I know that it is possible for honest men and women to have honest different opinions about the facts of a case, but, if it is possible to reconcile your differences of opinion and decide this case, then you should do so. Accordingly, I remind you that the court originally instructed you that the verdict of the jury must represent the considered judgment of each juror. It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous, but do not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Please continue your deliberations.

      . See Hall v. State, 201 So.3d 424, 428 (Miss. 2016).

      . Roby v. State, 183 So.3d 857, 872 (Miss. 2016) (citing Thompson v. State, 119 So.3d 1007, 1009 (Miss. 2013)).

      . Id. (citing Johnson v. State, 908 So.2d 758, 764 (Miss. 2005)).

      . Id. (citing Johnson, 908 So.2d at 764).

      . White v. State, 149 So.3d 556 (Miss. Ct. App. 2014).

      . See Fulgham v. State, 46 So.3d 315, 330 (Miss. 2010).

      . See Banyard v. State, 47 So.3d 676, 681 (Miss. 2010) (quoting Young v. Guild, 7 So.3d 251, 259 (Miss. 2009)) ("'While a party is entitled to jury instructions that present his theory of the case, this entitlement is limited; the trial court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.’ ”) (emphasis added).

        .Tran v. State, 681 So.2d 514, 517 (Miss. 1996) (quoting Windham v. State, 602 So.2d 798, 801 (Miss. 1992); Blanks v. State, 542 So.2d 222, 227 (Miss. 1989)).

      . Lancaster v. State, 472 So.2d 363, 366 (Miss 1985) (citing Erving v. State, 427 So.2d 701 (Miss. 1983)).

      . See Tran, 681 So.2d at 517.

      . Wilson v. State, 194 So.3d 855, 861 (Miss. 2016) (quoting Neal v. State, 15 So.3d 388, 397 (Miss. 2009)).

      . Pitchford v. State, 45 So.3d 216, 248 (Miss. 2010).

      . Graham v. State, 185 So.3d 992, 998 (Miss. 2016) (quoting Solanki v. Ervin, 21 So.3d 552, 556 (Miss. 2009)).

      . Id. (citing Franklin v. State, 676 So.2d 287, 288 (Miss. 1996)).

      . Id. (quoting Bush v. State, 895 So.2d 836, 843 (Miss. 2005)).

      . Id. (quoting Bush, 895 So.2d at 843).

      . Miss. Code Ann. § 97—3—19(l)(a) (Supp. 2016).

      . Holliman v. State, 178 So.3d 689, 698 (Miss. 2015) (citing Wilson v. State, 936 So.2d 357, 363-64 (Miss. 2006)).

      . Id. (quoting Jones v. State, 154 So.3d 872, 880 (Miss. 2014)).

      . Id. (quoting Boyd v. State, 977 So.2d 329, 335 (Miss. 2008)).

      . Bowser v. State, 182 So.3d 425, 431 (Miss. 2015) (quoting Howell v. State, 860 So.2d 704, 739 (Miss. 2003)).

      . Id. (quoting Nicholson v. State, 523 So.2d 68, 70 (Miss. 1988)).

      . Clemons v. State, 199 So.3d 670 (Miss. 2016) (citing Bush, 895 So.2d at 844)).

      . Cotton v. State, 144 So.3d 137, 142-143 (Miss. 2014) (citing Bush, 895 So.2d at 844).


author: KING, JUSTICE,

text:
    TUNICA COUNTY DEMOCRATIC EXECUTIVE COMMITTEE v. Craig JONES and William Pegram
    NO. 2016-EC-00400-SCT
    Supreme Court of Mississippi.
    06/15/2017

      ATTORNEY FOR APPELLANT: JAMES KEVIN LITTLETON, III
    ATTORNEYS FOR APPELLEES: JAMIE FERGUSON JACKS, CHARLES BUCKLEY GRAVES, JR.
    BEFORE DICKINSON, P.J., KING AND CHAMBERLIN, JJ.
   KING, JUSTICE,

FOR THE COURT:

¶ 1. Craig Jones filed a petition for judicial review of the Tunica County Democratic Executive Committee’s (TCDEC) decision that he was not qualified to run in its primary for Tunica County Board of Supervisors, Beat Five position. The trial eourt found that Jones’s name should be on the primary ballot. TCDEC appealed, but failed to prosecute the appeal and kept Jones’s name off the primary ballot. The trial court then vacated the primary election one day before the general election, which took place and which was won by an independent candidate. Jones then petitioned under Mississippi Rule of Civil Procedure 60 for relief from the judgment vacating the primary election, which the trial court granted. Because the trial court lacked authority to enter the second and third orders, as no election contest was ever filed, this Court vacates those orders and notes that the uncoptested election results currently stand.

FACTS AND PROCEDURAL HISTORY

¶2. On March 17, 2015, Jones filed a petition for judicial review of the decision of the TCDEC that he was not qualified to run for the position of county supervisor. His petition was assigned Cause Number 2015-0033. This Court appointed Judge Henry Lackey to hear cause number 2015-0033, stating that he was appointed “to preside over the matter herein involved.” On May 21, 2015, the court found that Jones was qualified to be a candidate, overruled the decision of the TCDEC, and directed that Jones’s name be placed on the primary ballot. The TCDEC appealed to this Court on May 27, 2015. On June 11, 2015, Mildred Conley, the chairperson of the TCDEC, sent a letter to the Tunica County Circuit Court clerk stating that Jones “shall no longer appear on the upcoming election ballots until a Supreme Court ruling has been reached. We are therefore requesting that these names be removed effective immediately upon this notification. Once the names have been removed we will then sign off on the ballots.”

¶ 3. On June 24, 2015, the Clerk of this Court sent a deficiency notice to the TCDEC stating that if the appeal costs were not paid, the record designation was not filed, and the certificate of compliance was not filed within fourteen days, this Court would dismiss the appeal for failure to prosecute it. On July 16, 2015, the Clerk of this ■ Court consequently dismissed the. appeal for failure to pay the costs of the appeal. On July 28, 2015, the TCDEC filed a motion for reconsideration. The primary election was held on August 4, 2015, with-, out Jones on the ballot. McKinley Daley, won that primary. On August 19, 2015, Jones filed a Mption to Dismiss Appeal .and for Award of Damages. On August 21, 2015, this Court ordered the TCDEC to respond to-Jones’s motion. The TCDEC did not file a response. On August 26, 2015, a panel of this Court thus denied the TCDEC’s motion for reconsideration and found that the mandate should issue on the prior dismissal of the appeal. The mandate issued on September 3,2015.

¶4. On October 12, 2015, Jones filed a Petition to Vacate the Primary Election-for Beat 5 Supervisor and to Set a Special Election in Cause No. 2015-0038. He argued that the TCDEC failed to follow proper procedure under Mississippi Code Section 23-15-961, and that the court should consequently vacate the nomination of Daley and order a special election for the Democratic nominee for Beat Five supervisor of Tunica County. On October 26, 2015, the court ordered that the election and nomination of Daley as the Democratic nominee be vacated and that a special election “be held in the manner and time required by law by the Tunica County Democratic Executive Committee, with Craig Jones and all other qualified candidates, on the ballot, on such date as the Governor’s Office shall call or set.” The order was filed ori November 2, 2015. The general election was held November 3, 2015, with Daley and independent candidate William Pegram on the ballot. Pe-gram won the general election by a vote of 334 to 323. Because the Democratic primary had been vacated by the circuit court order, the Board of Supervisors refused to seat Pegram, and instead appointed Daley as interim board member for Beat Five. Neither the TCDEC nor Daley filed an election challenge to the general election.

¶ 5. The TCDEC then requested on November 19, 2015, that Governor. Phil Bryant set a special election.. Governor Bryant declined to do so, noting in a letter dated December 7, 2015, that Section 23-15-961, the procedural vehicle through which the challenge was made in this case, did hot provide any authority for the Gov-: ernor to set a special election. On December 16, 2015, the TCDEC filed an Emergency Motion for Clarification and Stay, which Jones opposed, arguing that to grant the motion would effectively unseat Pegram, and that Pegram should be joined in the suit. On the same day that he filed his response opposing the TCDEC’s motion, Jones filed a Motion to Set Aside Order. In it, he noted that the relief sought in the cause was pursuant to Section 23-15-961, and that the court was without authority to vacate the primary or to order a new election. He also noted that the relief granted in the November 2, 2015, order is not permitted by law. Jones consequently requested pursuant to Mississippi Rule of Civil Procedure 60 that the court enter an order setting aside its Order Vacating the Primary Election for Beat Five Supervisor and Setting a Special Election. On January 20, 2016, Pegram filed a motion to intervene, in the action. On February 18, 2016, the circuit court found “sufficient justification under Rule 60 of the Mississippi Rule's- of Civil Procedure to set aside the November 2, 2015 Order calling for a special election.” The court reasoned that -Jones had withdrawn all challenges, so it would be inequitable to .order a special election for. Jones when Jones was no longer asserting his “rights” to a special election, that the TCDEC cannot argue for a special election for Jones when its position throughout the litigation was that Jones was unqualified to run, that the court did not know that an independent candidate was on the general election ballot at the time of its November 2, 2015, order, and that no election contest had been filed'. The court further found that Pegram was the duly’ elected' supervisor and that Daley should be removed from the seat immediately.

¶ 6. The TCDEC appeals this decision to this Court, this, time prosecuting its appeal. It argues that 1) the trial court exceeded the. authority granted it for all actions after it entered its order regarding Jones’s original petition for review; 2) the trial court had no authority to vacate the primary election; 3) the trial court had no authority to vacate its order vacating the primary; 4) the trial court lacked authority to find Mildred Conley in contempt a second time; 5) Jones never filed an election contest under Sections 23.-15-921 and 23-15-927, thus the trial court was without authority to vacate the primary election; 6). the trial court lacked authority to declare Pegram as the winner of the general election; 7) the trial court lacked authority to grant Pegram’s motion to intervene; 8) the only way to restore fairness and equity is to order a special election for the position of Supervisor for Beat Five. We will combine and rearrange these issues for-clarity and brevity.

ANALYSIS

¶ 7. In a candidate qualification case, this Court reviews questions of law de novo and reviews the. trial court’s findings of fact for manifest error. Hale v. State Democratic Exec. Comm., 168 So.3d 946, 951 (Miss. 2015).

1. Whether the trial court had the authority to issue the November 2, 2015, and February 18, 2016, orders.

¶8. As all parties vociferously emphasize, Jones filed a petition for judicial review under Mississippi Code Section 23-15—961. Section 23-15-961 provides that a “party aggrieved by the action or inaction of the appropriate executive committee” regarding the qualifications of a candidate for nomination in a party primary may file a petition'for judicial review in the circuit court; Miss. Code Ann. § 23—15—961(1)—(4) (Rev. 2015). The original petition with the executive committee must be filed within ten days after .the qualifying deadline, and the petition for judicial review must be filed no later -than fifteen days after the petition was originally filed with the executive committee, meaning that all challenges to qualifications must be filed -within twen-. ty-five days after the qualifying deadline. Miss. Code Ann. § 23-15-961(1), (4) (Rev. 2016). The power of the trial judge’s determination is statutorily limited to “determining] whether the candidate whose qualifications have been challenged is legally qualified-to have.his name placed upon the ballot in question.” Miss. Code Ann. § 23-15-961(5) (Rev. 2015). The aggrieved .party may file an appeal with the Supreme Court within three days of the circuit, court judgment. Miss. Code Ann. § 23-15-961(6) (Rev. 2015). “The Supreme Court shall have the .authority to grant such relief as is appropriate under the circumstances.” Id. The statute provides that this procedure “shall be the sole and only manner in which the qualifications of a candidate seeking public office as a party nominee may be challenged prior to the time of his nomination or election.” Miss. Code Ann. § 23-15-961(7) (Rev. 2015) (emphasis added). “After a party nominee has been elected to public office, the election may be challenged as otherwise provided by law.” Id.

¶ 9. Mississippi Code Section 23-15-921 provides the procedural vehicle to challenge a primary election after it has occurred.

Except as otherwise provided by Section 23-15-961, a person desiring to contest the election of another person returned as the nominee of the party to any county or county district office ... may, within twenty (20) days after the primary election, file a petition with the secretary, or any member of the county executive committee in the county in which the election was held, setting forth the grounds upon which the primary election is contested!!]

Miss. Code Ann. § 23-15-921 (Rev. 2015). Section 23-15-927 provides for judicial review of executive committee action or inaction following a contest, and provides that such a petition for judicial review must bear the certificate of two practicing attorneys who state that they have each made a full independent investigation, and they believe the protest and petition should be sustained. Miss. Code Ann. § 23-15-927 (Rev. 2015). Section 23-15-951 provides the procedure to contest a general election. Miss. Code Ann. § 23-15-951 (Rev. 2015).

¶ 10. Jones filed a petition for judicial review under Section 23-15-961. The trial court followed the missive of the statute and this Court’s appointment and determined that Jones should be on the ballot in the Democratic primary. The statute gives the trial court no authority to vacate any elections or order special elections. Indeed, the statutory scheme provides a different vehicle through which to make a challenge once an election, primary or general, has occurred. No such election contest was filed by anyone in this case regarding either the primary or the general election. This Court has noted that “the statutory provision is the exclusive remedy for deciding election contest issues.” In re Wilbourn, 590 So.2d 1381, 1386 (Miss. 1991). Deciding that a primary election that has occurred is invalid because of the failure to follow a court order regarding qualifications is an election contest issue. See id.

¶ 11. Moreover, this Court appointed Judge Lackey to hear the qualifications matter, which he heard and concluded. The circuit court had no authority under Section 23-15-961 to vacate the primary and order a new primary election. The circuit court’s third order vacated the second order under Rule 60 for the primary reason that Jones no longer wanted the result he asked for in the second order, and declared Pegram as the Beat Five supervisor and ordered that he have all rights and privileges thereto. While it seems appropriate that the November 2, 2015, order be subject to Rule 60, the circuit court went further in the February 18, 2016, order than simply granting Rule 60 relief from the November 2, 2015, order. It affirmatively ordered that Pegram be seated and be the Beat Five supervisor, something it had no authority to do under Section 23-15-961.

¶ 12. It appears that the second and third orders went beyond the circuit court’s authority under the statute and Judge Lackey’s authority under his appointment by this Court. No one filed an election contest for either the primary or the general election. The TCDEC argues that the equitable thing to do would be to order a new election for Beat Five supervisor. This argument fails for several straightforward reasons: 1) the TCDEC did not file an election contest to the general election; 2) with no election contest filed, this Court has no authority to order a new election; 3) the TCDEC has argued vociferously that Judge Lackey had no authority to order a new election after the primary because Jones did not file an election challenge, and its argument that this Court has the authority to order a new election without the TCDEC having filed an election contest is consequently inconsistent; and 4) the TCDEC failed to prosecute its original appeal, thus the TCDEC is essentially the root cause of this confusion.

¶ 13. Because the circuit court went further than a simple Rule 60 order in its third order, this Court vacates the November 2, 2015, and February 18, 2016, orders, and clarifies that, because no election contests were filed, the uncontested election results currently stand.

2. Whether the trial court had authority to find Conley in contempt a second time.

¶ 14. The record gives absolutely no indication that the trial court .found Conley in contempt a second time. The hearing transcript indicates a desire on the part of the judge to do so and an indication that further hearings would occur, but the record contains no indication that this came to fruition. Indeed, the TCDEC’s brief indicates that Conley was not actually held in contempt, stating that “it is clear that there is an intent by the Court to sanction Mildred Conley twice for conduct .... ” (Emphasis added.) This Court does not issue advisory opinions. Hughes v. Hosemann, 68 So.3d 1260, 1263 (Miss. 2011).

3. Whether the trial court lacked authority to grant Pegram’s motion to intervene.

¶ 15. Because this Court vacates the circuit court’s second and third orders, this issue is moot and this Court need not address it.

CONCLUSION

¶ 16, The trial court had no authority to order a special election under Section 23-15-961. Nor does this Court have the authority to order a special election, given that no election contest has been filed, and the original appeal under Section 23-15-961 was not prosecuted. This Court vacates the November 2, 2015, and February 18, 2016, orders and we note that the uncontested election results currently stand.

¶ 17. VACATED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

      . Rule 60 provides for relief from judgment where the judgment is void, it is no longer equitable that the judgment should have prospective application, or any other reason justifying relief from the judgment. M.R.C.P. 60(b)(4)-(6).

      . "This Court further finds that Mr. William Pegram is the duly elected District 5 Supervisor for Tunica County, that Mr. Pegram should be afforded all benefits of that position including all compensation and benefits due to him since January 1, 2016 and that Mr. McKinley Daley should be removed from the District 5 Supervisor seat immediately.”