source: Caselaw Access Project

author:
WILSON, J.,
      ISHEE, J.,

license: Public Domain

text:
    Kenneth D. MCDUFF, Jr., Appellant v. Teresa B. MCDUFF, Appellee
    NO. 2015-CA-00040-COA
    Court of Appeals of Mississippi.
    11/01/2016
    Rehearing Denied March 7, 2017

      W. BRADY KELLEMS, JOSEPH PRESTON DURR, ATTORNEYS FOR APPELLANT
    LISA JORDAN DALE, ATTORNEY FOR APPELLEE
   WILSON, J.,

FOR THE COURT:

¶ 1. This appeal arises from the denial of a motion filed by Kenneth McDuff pursuant to Rules 59 and 60 of the Mississippi Rules of Civil Procedure. Kenneth moved to set aside his property settlement agreement (PSA) with his ex-wife, Teresa, and the divorce decree that approved and incorporated the PSA. Kenneth alleges that he entered into the PSA in reliance on misrepresentations conveyed to him by a mediator during the parties’ divorce proceeding. He claims that he is entitled to set aside the PSA and divorce decree because of fraud, misrepresentation, or mistake. In the alternative, he argues that the chancellor erred by denying his motion without allowing him to conduct discovery or subpoena the mediator. We find that the chancellor did not err by denying Kenneth’s motion and therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Kenneth McDuff and Teresa McDuff owned a 380-acre tract of land in Wilkinson County that has been referred to as the “Hill property.” The McDuffs also owned an undivided twenty-five acres in a nearby hunting property on Foster Lake. The Foster Lake property’s co-owner, Dan Brown, owned an undivided 285 acres. Although Kenneth and Brown were once friends, they had a falling out, and Brown filed a petition to partite the Foster Lake property. Apparently, Brown also accused Kenneth of threatening him or his family or employees with physical violence and with a deadly weapon, and Brown’s allegations resulted in criminal charges against Kenneth. In March 2014, Brown offered to settle the partition lawsuit by buying the Hill property and the McDuffs’ interest in the Foster Lake tract for $2,000,000. However, Kenneth did not accept Brown’s offer.

¶ 8. While the partition lawsuit was pending, Teresa filed a complaint for divorce from Kenneth. In June 2014, Kenneth and Teresa participated in a mediation, which resulted in a PSA that the chancellor approved and incorporated into a divorce decree. Under the PSA, Kenneth agreed to pay Teresa a lump sum property settlement of $1,000,000, and Teresa agreed to relinquish any interest in the Hill property, the Foster Lake property, another property, and the marital domicile (except that Teresa retained one-half of the oil, gas, and mineral interest in the marital domicile property).

¶ 4. Kenneth’s attorney testified that, during the mediation, the mediator told Kenneth, “[Teresa] is on the phone with [Brown] now. [Brown] has offered to purchase the Hill property only for $2,000,000.” Neither Kenneth nor his attorney claims that the mediator specifically stated that Brown would buy the Hill property from Kenneth for $2,000,000. Rather, they inferred or assumed that Kenneth could accept Brown’s offer and sell the property to Brown for that amount. In addition, neither Kenneth nor his attorney sought to contact Brown or attempted to verify the offer or its details before Kenneth signed the PSA and the chancellor entered the divorce decree. Nonetheless, Kenneth alleges that he agreed to pay Teresa $1,000,000 and entered into the PSA in reliance on the mediator’s statement regarding Brown’s offer— and h is belief that he could accept the offer.

¶ 5. After the divorce decree was entered, Kenneth attempted, to accept Brown’s offer, but Brown responded that no such offer existed, and he declined to pay Kenneth $2,000,000 for the Hill property. Kenneth then filed a motion to set aside the PSA and the divorce decree pursuant to Rules 59 and 60 of the Mississippi Rules of Civil Procedure. Kenneth’s motion alleged “misrepresentation and misconduct by Teresa” during the mediation.

¶ 6. Brown subsequently testified that he told Teresa that he would consider buying the Hill property from her but not from Kenneth; that he probably would pay her $2,000,000; and that he would buy the property only if he could arrange a section 1031 exchange. Kenneth and his attorney testified that the mediator 'failed to disclose to.them (a) that Brown would buy the Hill property for that price only from Teresa and (b) that Brown’s offer was contingent on his ability to" arrange a section 1031 exchange. Kenneth alleges that these omissions caused him to believe— due to either misrepresentation or mistake—that Brown would buy the property from him for $2,000,000.

¶ 7. In connection with his motion under Rules 59 and 60, Kenneth served subpoenas duces tecum on Brown and Teresa and requested the court’s permission to depose Brown and Teresa. Kenneth also served a witness subpoena and a subpoena duces tecum on the mediator. Brown, Teresa, and the mediator all filed motions to quash the subpoenas, which the chancellor granted. The chancellor also denied Kenneth’s requests to conduct discovery, although he noted that he might revisit the issue after the hearing on Kenneth’s motion under Rules 59 and 60.

¶ 8. At the hearing on Kenneth’s motion to set aside the PSA and divorce decree, Kenneth and his attorney both testified regarding the mediator’s statements during the mediation. After the hearing, the chancellor denied the motion. In his accompanying opinion, the chancellor found, among other things, that Kenneth’s testimony that he relied on an offer' from Brown was “incredible,” The chancellor also found that Kenneth could have verified the terms of Brown’s offer during the mediation but failed to do so.

DISCUSSION

¶9. On appeal, Kenneth argues that the chancellor erred by denying his motion to set aside the PSA and divorce decree. In the alternative, he argues that the chancellor erred by denying the motion without allowing him to conduct discovery or subpoena the mediator to testify. We review á chancellor’s denial of a motion under Rule 59 or Rule 60 under an abuse-of-discretion standard. Hanshaw v. Hanshaw, 55 So.3d 143, 146 (¶ 8) (Miss. 2011); Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss. 1984). The same standard of review applies to the chancellor’s rulings on matters relating to discovery. Blossom v. Blossom, 66 So.3d 124, 126 (¶ 9) (Miss. 2011).

¶ 10. We find no abuse of discretion and affirm the chancellor’s ruling because no amount of discovery or additional testimony would produce evidence that would warrant setting aside the PSA and divorce decree. A party seeking to set aside a divorce decree based on fraud or mistake must prove four things:

(1) 'that the facts constituting the fraud .[or] mistake ... must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made; (2) the facts justifying the relief must be clearly and positively 'alleged as facts and must be clearly and convincingly proved; (3) the facts must not have been known to the injured party at the time of the original decree; and (4) the ignorance thereof at the time must not have been the result of the want of reasonable care- and diligence.

Rogers v. Rogers, 94 So.3d 1258, 1264 (¶ 19) (Miss. Ct. App. 2012) (quoting Manning v. Tanner, 594 So.2d 1164, 1167 (Miss. 1992)); accord Jenkins v. Jenkins, 757 So.2d 339, 343 (¶ 8) (Miss. Ct. App. 2000) (quoting Guthrie v. Guthrie, 226 Miss. 190, 84 So.2d 158, 161 (1955)); see also. Whitehead v. Johnson, 797 So.2d 317, 325 (¶ 27) (Miss. Ct. App. 2001) (“It is .... a basic tenet of the law of fraud that any reliance on an alleged fraudulent statement must be reasonable or justifiable. The law as to reliance is. the same for a claim based on a negligent misrepresentation.” (citations omitted)).

¶ 11. Kenneth cannot meet this standard even if we accept as fact his testimony that he entered into the PSA in reliance on the mistaken belief that Brown would, buy the Hill property from him for $2,000,000.. For even if that is true, Kenneth could have discovered that Brown’s offer was not open to him had he exercised “reasonable care and diligence.” Rogers, 94 So.3d at 1264 (¶ 19). Kenneth and Brown were engaged in litigation concerning a separate property, and their relationship was contentious, to put it mildly. Kenneth also knew that less than three months earlier Brown was willing to pay $2,000,000 for the Hill property only if Kenneth also gave up his interest in the Foster Lake property. Moreover, even setting aside the history between Brown and Kenneth, a real estate transaction of this significance almost always involves negotiation over terms other than price. See Transnational Ventures Inc. v. Derr Plantation Inc., 187 So.3d 185, 191-92 (¶¶ 25-27) (Miss. Ct. App. 2016).

¶ 12. Under these .circumstances, “reasonable care and diligence” would have included—at the very least—confirming with Brown that his reported offer was open to Kenneth and whether the offer involved any other terms or conditions. On appeal, Kenneth protests that it is unreasonable to suggest that he “should have suspended the mediation” to “verify the accuracy” of the mediator’s report of Brown’s offer. However, Brown was already talking to Teresa on the phone during the, mediation. If Brown’s offer was truly essential to Kenneth’s .decision to enter into the PSA, Kenneth should have at least asked to speak to Brown directly. Having failed to do so, his ignorance of the limitations of Brown’s offer is not a basis for setting aside the PSA or divorce decree.

¶ 13. In all likelihood, there was no misrepresentation. The mediator reportedly stated that Brown had “offered to purchase the Hill property only for $2,000,000,” and the evidence indicates that Brown did make such -an offer to Teresa. Kenneth’s claim that he relied on a belief that Brown’s offer was equally open to him is also dubious given that the medi- • ator never stated that. It would appear that Kenneth relied- on his own assumptions about the offer, not anything that the mediator actually said. But even setting these issues aside, the chancellor correctly denied Kenneth’s motion to set aside the PSA and divorce decree because Kenneth easily could have learned of the nature and terms of Brown’s offer had he exercised reasonable care and diligence. Therefore, we affirm..

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

GRIFFIS, P.J., BARNES, CARLTON AND GREENLEE, JJ., CONCUR-. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT ' SEPARATE WRITTEN OPINION.-ISHEE, J., DISSENTS WITH ' . • SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., IRVING, P.J., FAIR AND JAMES, JJ.

ISHEE, J.,

DISSENTING:

¶ 15. With regard to the majority opinion, I respectfully dissent. In 2014, Kenneth and Teresa entered into mediation regarding their divorce. An agreement was reached that included a $1,000,000 payment from Kenneth to Teresa. Kenneth agreed to pay Teresa the money based on the purchase of certain marital property by a third-party buyer for $2,000,000. The buyer’s offer was conveyed by the mediator. The chancery court later entered an order reflecting the parties’ agreement, including the $1,000,000 payment from Kenneth to Teresa. Later, the buyer’s offer was rescinded. Kenneth then contested the chancery court’s order, arguing that his payment to Teresa was contingent on the sale of the marital property that never occurred. Kenneth further asserted that the buyer’s offer was not legitimate and that the mediator and Teresa committed fraud and misrepresentation. As such, Kenneth attempted to subpoena the mediator to testify at a hearing before the chancery court regarding the alleged offer to purchase the marital property. The chancery court quashed the subpoena and eventually denied Kenneth’s requests to revisit the divorce order. Kenneth now appeals. Finding error, I would reverse and remand this case to the chancery court for further action consistent with the findings of this opinion.

STATEMENT OF FACTS

¶ 16. On June 17, 2014, Kenneth and Teresa entered into a mediation regarding the division of their marital property pursuant to their divorce proceedings. William J. Lutz served as the parties’ mediator. Kenneth, Teresa, and their respective attorneys were also present at the mediation.

¶ 17. Kenneth and Teresa owned several pieces of property, including certain property known as “the Hill property.” During the mediation, Teresa represented that she had an offer from a third-party buyer to purchase the Hill property for $2,000,000. Kenneth’s attorney testified that Lutz informed them that “[Teresa] is on the phone with [the buyer] now. He has offered to purchase the Hill property only for $2,000,000.” Neither Kenneth nor his attorney verified the buyer’s offer.

¶ 18. Nonetheless, based on the buyer’s offer, Kenneth agreed to sell the Hill property and pay Teresa $1,000,000. However, the day after the divorce was finalized, the buyer rescinded his offer. In turn, Kenneth contested the judgment of divorce, arguing that he only agreed to pay Teresa the $1,000,000 based on the sale of the Hill property even though the contingent sale was not included in the language of the divorce order. Kenneth further averred that Teresa, the buyer, and Lutz had induced him into agreeing to the payment based on fraud and misrepresentation.

¶ 19. In preparation for the hearing on the matter before the chancery court, Kenneth requested the chancery court’s leave to conduct additional limited discovery regarding the statements of Teresa, the buyer, and Lutz. The chancery court denied Kenneth’s motion. Kenneth then attempted to subpoena Teresa, the buyer, and Lutz to testify regarding the alleged terms of the sale. The chancellor quashed all three subpoenas with little explanation. When the hearing concluded, the chancellor denied Kenneth’s motion to alter or amend the ■ judgment of divorce. Aggrieved, Kenneth now appeals.

DISCUSSION

¶20. It is well settled that appellate courts are bound by a limited standard of review in domestic-relations matters. See, e.g., Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss. 1994). The Mississippi Supreme Court has held that a chancellor’s findings of fact, especially in domestic-relations cases such as the instant case, “will generally not be overturned by [the appellate court] unless they are manifestly wrong.” Fancher v. Pell, 831 So.2d 1137, 1140 (¶ 15) (Miss. 2002) (citing Nichols v. Tedder, 547 So.2d 766, 781 (Miss. 1989)). The chancellor must have been “manifestly wrong, clearly erroneous, or an erroneous legal standard [must have been] applied,” for the findings to be overturned. Montgomery v. Montgomery, 759 So.2d 1238, 1240 (¶ 5) (Miss. 2000).

¶21. In quashing the subpoenas, the chancellor provided little explanation for the quashing of Teresa and the buyer’s subpoenas and determined that the confidentiality agreement contained in the mediation agreement, in conjunction with applicable mediation rules, prevented Lutz from being subpoenaed. However, there was no hearing regarding the subpoenas, nor were the parties given an opportunity to present evidence to the chancellor regarding their positions on why the subpoenas should or should not be quashed. Kenneth asserts that because he is arguing that the judgment of divorce was procured by fraud or misrepresentation, the chancellor had a duty to hear and consider the arguments of the parties with respect to the subpoenas and the testimonies of Teresa, the buyer, and Lutz in order to properly rule on the matter.

¶ 22. We recognize our limited standard of review in this matter. However, we also acknowledge a chancellor’s obligation to make an informed decision prior to excluding evidence that may be pertinent in determining whether fraud or mistake occurred in the procurement of a judgment. Mississippi Rule of Evidence 1101(b)(1) notes that the Rules of Evidence do not apply to circumstances involving preliminary questions of fact. Specifically, Rule 1101(b)(1) states that evidentiary rules do not apply to “the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility^]” Id. In turn, Mississippi Rule of Evidence 104(a) provides: “The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible.” The comments to Rule 104(a) further note: “Oftentimes preliminary matters will involve a determination of facts.” As such, “[w]hen the judge hears evidence on these preliminary questions, he is not bound under Rule 104 to apply the [R]ules of [E]vidence.” Lastly, Mississippi Rule of Mediation for Civil Litigation VII.D. permits the chancellor “to determine, in camera, whether the facts and circumstances and context of the communications or materials sought to be disclosed warrant a protective order of the court or whether the communications or materials are subject to disclosure.”

¶ 23. The record indicates that Kenneth only requested subpoenas for Teresa, the buyer, and Lutz after the chancery court denied his motion to conduct limited discovery into the statements made by the potential witnesses during the mediation. By denying Kenneth’s request to allow discovery on this narrow issue and further quashing the subpoenas without a hearing or other informative outlet, the chancery court was without enough information on the matter to make a proper ruling. I find, at a minimum, the chancellor should have allowed for a hearing on the issue of the subpoenas and permitted an in camera review of the witnesses’ testimonies. In doing so, the chancellor would have been afforded the opportunity to hear all relative information and thereafter make a comprehensive ruling on whether or not the witnesses should have been subpoenaed. As such, I would reverse and remand the chancery court’s judgment for further action consistent with the findings of this opinion.

LEE, C.J., IRVING, P.J., FAIR AND JAMES, JJ., JOIN THIS OPINION.

      . Brown testified at a hearing in the partition lawsuit.

      . "Under 26 United States Code Service Section 1031, when property held for productive use in a trade or business or for investment is exchanged for property of like kind that is also to be held either for productive use in a trade or business or for investment, the taxes or credits normally associated with any'gain or loss are deferred.” Callicutt v. Prof'l Servs. of Potts Camp Inc., 974 So.2d 216, 217 (¶ 3) (Miss. 2007).


author: BARNES, J.,

text:
    Tavaris COLLINS a/k/a Tavaras Collins a/k/a Tavares Collins a/k/a Tavaris Franshay Collins a/k/a Tavaris F. Collins a/k/a Frog, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00848-COA
    Court of Appeals of Mississippi.
    11/01/2016
    Rehearing Denied March 14, 2017

      OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., BARNES AND ISHEE, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. After a jury trial, Tavaris Collins was convicted for the first-degree murder of Devin Mitchell, as well as two counts of possession of a weapon by a convicted felon. The trial court sentenced him, as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015), to life without the possibility of parole for the murder charge, and ten years for each of the two counts of felon in possession of a weapon, all in the custody of the Mississippi Department of Corrections (MDOC). On appeal, Collins raises two issues: whether the evidence was sufficient to convict him, and whether he received ineffective assistance of counsel. Finding no error, we affirm Collins’s convictions and sentences.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. This case stems from the early-morning shooting of sixteen-year-old Devin Mitchell in the courtyard of his cousins’ apartment in West Point, Mississippi, on January 1, 2012. On New Year’s Eve, Devin, who lived in Starkville, Mississippi, was visiting his cousins in West Point, and had gone to church with his family. They returned to his adult cousin Queenie Walker’s apartment, which was on the ground level of a four-unit building. Two apartments were on the ground floor, separated by a breezeway, and two apartments were on the second floor. Devin, his sister, and his cousins visited, watching a movie on television and eating a late dinner after church. At midnight, the cousins went outside and wished neighbors a happy new year. After thirty minutes, they went to another cousin’s apartment to play a video game. At approximately 1:30 a.m., Devin walked his cousin and sister back to Quee-nie’s apartment. Devin then went back outside to talk on his phone and socialize with his sixteen-year-old friend Porsha Ewing. He spoke to her through her bedroom •window until Queenie called him to come inside. As Devin was walking across the courtyard to Queenie’s apartment, Devin was shot in the head and killed by thirty-one-year-old Collins, who lived in his girlfriend’s apartment on the second floor.

¶ 3. Queenie did not witness the shooting, but she, her sixteen-year-old daughter Alexis, and Porsha all heard four or five gunshots fired in quick succession near the breezeway of Queenie’s apartment building. Initially, Queenie thought the sounds were fireworks. When she went back outside to look for Devin, Queenie found him lying face down and unresponsive on the sidewalk. Queenie told Alexis to call for help. Collins was standing nearby with a dark-colored handgun in his hand, acting like he was looking for someone. Collins gestured toward the bushes behind the apartments, like someone was out there, but Queenie testified there was not anyone there.

¶4. Collins returned up the stairs and sat on the threshold of the doorway to his apartment. Queenie, screaming for help, went to her apartment to call 911. As law enforcement arrived, Collins reemerged from his apartment and told Queenie “I will do you one better,” laying a different gun than the one he was previously carrying on the concrete next to Devin’s body. It was later identified as a TEC-9-.22 caliber semiautomatic pistol.

¶ 5. Officer Jeremy Bell of the West Point Police Department responded to the scene first at approximately 3 a.m. Quee-nie and Collins both waved him down. Queenie was “very excited” and yelled to Officer Bell: “He’s sixteen. He’s been shot.” Collins told Officer Bell he had fired some shots toward the wooded area near the apartments using the .22-caliber pistol on the pavement; however, Collins could not describe the number of alleged shooters or what they were wearing. Collins told Officer Bell the shooters were running from the building into the woods. Initially, Collins stated he fired his gun while “at the back of the stairs in the breezeway,” but a few minutes later, he stated that he was standing in the complex’s courtyard when he fired the shots. He changed his story a third time to explain that during an exchange of gunfire, he walked past Devin and shot toward the courtyard at individuals who were running away. Officer Bell rolled Devin’s body over, and saw that Devin had been shot in the head and was unarmed. Collins did not know Devin, and stated he fired the shots because he heard someone else shooting. However, Collins never told Officer Bell that anyone had shot at him.

¶ 6. A large crowd began to gather; so Collins was transported from the scene for safety. On the way to the police station, Collins asked Officer Bell, “do you think my gun did it?” At the station, he gave a fourth version of the shooting, stating he was at the back of the stairs and shot toward the parking lot. He also added that one of the shooters was wearing blue jeans and a black hoodie, the same clothing that Devin was wearing.

¶ 7. At the scene, Queenie told lead investigator Albert Lee that the TEC-9 firearm found beside Devin’s body did not appear to be the firearm Collins used in the shooting. Obtaining a warrant, investigators searched Collins’s apartment and found a .38-caliber revolver and shell casing hidden in the attic, near the crawlspace entrance. The revolver contained four empty shell casings. No further evidence was recovered from the scene. A projectile was recovered from Devin’s skull, but was too damaged to compare to samples from the two guns recovered.

¶ 8. Initially, Collins invoked his right to remain silent, but the next day, at his mother’s urging, Collins gave a statement to Officer Gary Turner, which was recorded and played for the jury at trial. In the statement, Collins mentioned several times that he was “very paranoid,” and had been for the past three months, which his mother and sister could confirm. He claimed unidentified individuals and vehicles had been following him for several weeks, but he did not know why. Later, Collins admitted that he had consumed beer and marijuana the night of the murder. During the interview Collins sounded disturbed, mumbling and repeating himself: ‘Tou know what I’m saying? I’m gonna get them ber fore they get me to be real honest, with you. You know what I’m saying, you know what I’m saying?” Collins admitted to firing shots at the apartment after he heard a pop and saw a “little dude,” who was watching him, put a hood on his head. Collins shot multiple times—in the direction of the “dude” and out in the woods. Collins also admitted, that he had two different guns, a ,38-caliber revolver and a .22 semiautomatic pistol, and that he initially shot the .38, and then the ,22, which jammed on him. Collins admitted to Officer Turner that he did not mean to shoot Devin—Collins was just trying to “spook” whoever was trying to hurt him. At the end of the interview, Collins expressed regret over the shooting of the “little boy,” stating the victim “was at the wrong place [at the] wrong time.” Investigator Leé believed Collins to be paranoid. ’

¶ 9. A three-count indictment was returned against Collins for deliberate-design (first-degree) murder, and two counts of possession of a weapon by a felon. The trial court granted a change of venue from Clay County to Union County, as the victim was a well-known and well-liked football player at Starkville High School. The trial court also ordered a psychological evaluation of Collins.

¶10. The psychological evaluation, performed by Dr. Criss Lott, was filed with the trial court, and a competency hearing was held. The report showed that while Collins had some mental illnesses, none would prevent him from being able to assist his attorney, or understand the nature and consequences of his actions. At trial, Dr. Lott testified for the defense. He noted that, at the time of the shooting, Collins was quite paranoid and possibly delusional, but he was not legally insane. That-is, he knew the nature and quality of his actions, and the wrongfulness of shooting someone for no reason, although his judgment may have been impaired.

¶ 11. For Count I, the jury was instructed on first-degree murder, second-degree murder, culpable-negligence manslaughter, self-defense, and “imperfect” self-defense. Collins was found guilty of first-degree murder and both counts of felon in possession of a,firearm.

ANALYSIS.. .

I. Sufficiency of the Evidence

¶ 12, Collins’s motion for a directed verdict challenging the sufficiency of the evidence was denied by the trial court. Collins now argues that the State failed to prove the element of deliberate design; therefore, his first-degree-murder conviction should be reversed, and the direct-remand rule applied so that he can be sentenced for second-degree murder.

¶ 13. In reviewing the sufficiency of the evidence, “the 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.” Nolan v. State, 61 So.3d 887, 893 (¶24) (Miss. 2011) (quoting Bush v. State, 895 So.2d 836, 843 (¶16) (Miss. 2005)). All evidence consistent with the defendant’s guilt will be accepted as true, together with all favorable inferences that may be reasonably drawn from the evidence. Robinson v. State, 940 So.2d 235, 240 (¶13) (Miss. 2006) (citation omitted).

¶ 14. First-degree murder is defined as the killing of a human being “with deliberate design to effect the death of the person killed Miss. Code Ann. § 97-3-19(l)(a). In Mississippi, “deliberate design” and “malice aforethought” are considered synonymous terms, and both “connote an intent to kill.” Sands v. State, 62 So.3d 374, 378 (¶24) (Miss. 2011) (quoting Wilson v. State, 936 So.2d 357, 363-64 (¶17) (Miss. 2006)). “This intent may be ‘formed quickly,’ even ‘moments before the act’ and may be inferred from the use of a deadly weapon.” Id. at 378-79 (¶24). “[I]n-tent may be proven ... by showing the acts of the person involved at the time, and ... the circumstances surrounding the incident.” Boyd v. State, 977 So.2d 329, 335 (¶23) (Miss. 2008) (citation omitted). Intent is a question of fact gleaned by the jury. Id. (quoting Wheat v. State, 420 So.2d 229, 238 (Miss. 1982)).

¶ 15. The jury was instructed that to find Collins guilty of first-degree murder, it must find he “unlawfully/ willfully, and feloniously, with malice aforethought kill[ed] and murder[ed] Devin Mitchell, without authority of law and not in necessary self-defense.” If the jury found Collins not guilty of first-degree murder, it was instructed to consider the lesser-included offense of second-degree murder. Second-degree murder is killing “done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated, design to effect the death of any particular individual .... ” Miss. Code Ann. § 97-3-19(l)(b). The jury was instructed that if it found Collins not guilty of second-degree murder, it could consider whether Collins was guilty of- culpable-negligence manslaughter. The jury could also consider imperfect-self-defense manslaughter.

¶ 16. Collins claims that the State failed to present evidence that he intended to shoot Devin. Thus, Collins argues he is guilty, at most, of second-degree murder, which does not require an intent to kill an individual, but only “an act eminently dangerous to others and evincing a depraved heart.” Collins contends he shot in the direction of where he heard shots fired, but not specifically at Devin.

•¶ 17, We are not persuaded by this-argument. Thé jury could find proof beyond a reasonable doubt of the element of deliberate design or malice aforethought by Collins’s acts and the circumstances at the time-of.the killing. Collins shot several times in quick succession with a deadly weapon, in many different directions. He' admitted in his interview he intentionally shot multiple times in the direction of Devin, who he thought was “after him.” Collins also stated he was trying to “spook” the hooded “little dude,” which the jury could have reasonably identified as Devin. Even though Collins was ambiguously trying to “get them before they get me,” his paranoia at the time of the shooting did not relieve him of culpability for Devin’s, murder. He claimed he heard a pop before he opened fire, but he never claimed anyone shot at him; so there is no evidence of self-defense. Further, three. witnesses claimed there was no gunfire or fireworks directly preceding the shooting. Collins changed his story several times about where he was standing when he fired his weapon. He also identified the shooter as wearing the same clothing Devin was wearing that-night.

If 18. Viewing the evidence in the light most favorable to the State, there was sufficient proof of the elements of first-degree murder, including deliberate design, beyond a reasonable doubt, to convict Collins.

II. Ineffective Assistance of Counsel

¶ 19. Collins argues that he received ineffective assistance of counsel because defense counsel failed to stipulate to prior convictions for purposes of Counts II and III, and failed to object to certain prejudicial prior-bad-act evidence.

While this Court may consider the merits of a claim of ineffective assistance of counsel raised for the first time on direct appeal, it is unusual to do so because “we are limited to the trial court record in our review of the claim and there is usually insufficient evidence within the record to evaluate the claim.”

Ragland v. State, 50 So.3d 1041, 1044 (¶8) (Miss. Ct. App. 2010) (quoting Wilcher v. State, 863 So.2d 776, 825 (¶171) (Miss. 2003)). The appropriate conclusion is usually “to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief.” Aguilar v. State, 847 So.2d 871, 878 (¶17) (Miss. Ct. App. 2003) (citing Read v. State, 430 So.2d 832, 837 (Miss. 1983)). We will reach the merits on an ineffective-assistance claim only in instances where “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Wilcher, 863 So.2d at 825 (¶171). Here, the State stipulated that the record is adequate to allow this Court to address Collins’s claim.

¶20. The test for an ineffective-assistance-of-counsel claim is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Brown v. State, 798 So.2d 481, 493 (¶14) (Miss. 2001) (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). A defendant “must prove, under the totality of the circumstances that (1) his attorney’s performance was defective and (2) the deficiency deprived the defendant of a fair trial.” Carr v. State, 873 So.2d 991, 1003 (¶27) (Miss. 2004) (citing Hiter v. State, 660 So.2d 961, 965 (Miss. 1995)). “Prejudice” in this instance means that but for counsel’s errors, there is a reasonable probability that the outcome of the trial would have been different. Brown v. State, 798 So.2d 481, 493-94 (¶14) (Miss. 2001) (citation omitted). There is a “strong but rebuttable presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” Hiter, 660 So.2d at 965.

¶ 21. Without objection from defense counsel, after opening statements, the State entered an order into evidence showing Collins had a prior felony conviction for aggravated assault in 1998. On appeal, Collins argues that his trial counsel was ineffective for not stipulating to his status as a previously convicted felon in order to prove the first element of the charge of felon in possession of a firearm. However, as the State points out, this decision has been found to be a reasonable trial strategy. Generally, actions which fall under acceptable “trial strategy” include failure to call certain witnesses and make certain objections, and do not necessarily render counsel’s actions ineffective. Cole v. State, 666 So.2d 767, 777 (Miss. 1995). This Court has stated that stipulating to the prior felony could give “the jury the impression that the defen[se] had some reason to hide facts of the prior cases from them.” Williams v. State, 819 So.2d 532, 538 (¶18) (Miss. Ct. App. 2002). Moreover, there is always “a strong, yet rebuttable, presumption that the actions by defense counsel are reasonably strategic.” Id. (citing Cole, 666 So.2d at 775). The decision not to stipulate to a prior felony was neither deficient nor prejudicial to Collins, and was reasonable trial strategy under the circumstances.

¶ 22. Collins also argues that his trial counsel was ineffective for failing to object to Dr. Lott’s testimony of Collins’s prior bad acts. Mississippi Rule of Evidence 404(b)(1) prohibits the introduction into evidence of a defendant’s other crimes or bad acts “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” However, evidence of other crimes or bad acts may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” M.R.E. 404(b)(2). The reason this type of evidence is not admissible “is to prevent the State from raising the inferences that the accused has committed other crimes and is therefore likely to be guilty of the offense charged.” Denham v. State, 966 So.2d 894, 898 (¶18) (Miss. Ct. App. 2007) (citing White v. State, 842 So.2d 565, 573 (¶24) (Miss. 2003)).

¶ 23. Here, Dr. Lott, the sole defense witness, testified to information contained in his psychological evaluation report, which was marked for identification purposes but never entered into evidence. During direct examination, it was Dr. Lott’s opinion that Collins was paranoid and possibly delusional during the shooting. Dr. Lott explained that part of his opinion was based on Collins’s history of “conduct-disorder” behavior. On cross-examination, specific information was elicited from Dr. Lott and his report that Collins had some outstanding warrants for malicious mischief and domestic violence, suspension from school for fighting, shooting his stepfather for hitting his mother, and generally a long-term history of impulsive and aggressive behaviors beginning as early as adolescence. The defense did not object to this testimony.

¶ 24. Through Dr. Lott’s testimony, the defense attempted to establish that, while Collins was not legally insane, he was delusional during the shooting. Dr. Lott also suspected that Collins was delusional during some of these prior acts; however, he admitted there was no way to know unless someone had evaluated Collins at that time, and there was no record of such. The State appeared to be trying to show that the history of bad acts could not be attributed to a history of mental disorders, because there was none—thereby undermining Dr. Lott’s opinion that Collins was delusional. The questioning on bad acts was not to imply guilt for the current crime. Furthermore, failure to object to the testimony is not deficient performance by counsel, and here did not rise to the level of prejudice to change the outcome of the trial. The record does not support Collins’s claim of ineffective assistance of counsel.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY OF CONVICTION OF COUNT I, MURDER, AND SENTENCE OF LIFE; AND COUNTS II AND III, POSSESSION OF A WEAPON BY A CONVICTED FELON, AND SENTENCE OF TEN YEARS FOR EACH COUNT, WITH ALL SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY. '

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . The Mississippi Legislature designatecl deliberate-design murder as first-degree murder, and depraved-heart murder as second-degree murder, effective July 1, 2013,. See Miss. Code Ann, § 97—3—19(1)(a)—(b) (Rev. 2014).

      . Under the direct-remand rule, "when a conviction is reversed due to insufficient evidence, 'no new trial is required and the defendant may be remanded for re-sentencing on the lesser included offense where proof establishes the lesser offense," Hill v. State, 929 So.2d 338, 341 (¶10) (Miss. Ct. App. 2005) (quoting Shields v. State, 722 So.2d 584, 585 (¶7) (Miss. 1998)).


author: GREENLEE, J.,

text:
    Felton MARTIN, Jr. a/k/a Felton Martin, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CA-00153-COA
    Court of Appeals of Mississippi.
    11/08/2016
    Rehearing Denied March 21, 2017
    Certiorari Denied June 22, 2017

      ATTORNEYS FOR APPELLANT: DAVID NEIL MCCARTY, GRAHAM PATRICK CARNER
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: WILSON DOUGLAS MINOR, JASON L. DAVIS, LEE DAVIS THAMES JR.
    BEFORE LEE, C.J., WILSON AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. This is an appeal from Hinds County Circuit Court’s judgment in favor of the State of Mississippi, denying Felton Martin Jr.’s claim for compensation under Mississippi’s wrongful-conviction and restitution statute. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On January' 31, 1997, Martin was found guilty of constructive possession of marijuana with intent to distribute under Mississippi Code Annotated section 41-29-139(a)(1) (Supp. 2016). On September 6, 2001, the Mississippi Supreme Court reversed and rendered Martin’s conviction, holding that the State failed to prove'beyond a reasonable doubt that Martin constructively possessed the more-than one-half pound of marijuana recovered at the scene by the police. Martin v. State, 804 So.2d 967, 970 (¶¶ 12-14) (Miss. 2001) (Justice Smith, joined by Justices Waller and Easley, dissented). Martin served a total of five years and eleven,days in prison.

¶ 3. On July 1, 2009, the, Mississippi Legislature enacted the wrongful-conviction and 'restitution statute, which allows those convicted and subsequently exonerated to make a restitution claim when the convicted person has actually served a sentence. The statute allows the wrongfully convicted to recover if he proves that he was actually innocent by a preponderance of the evidence. Miss. Code Ann. § 11-44-7(1) (Rev. 2012). On June 27, 2012, Martin filed a - restitution claim in Hinds-County Circuit Court for his five years and eleven days in prison prior to his release. Pursuant to the statute, • a one-day bench trial ensued on January 20,2015. ■

¶ 4, At Martin’s civil restitution trial, he testified that early on the Thursday morning of his arrest, he was at his home when Darrin Fox, with whom he had a falling out in the months prior, came to his house and asked Martin to look at a car Fox was considering purchasing. Martin testified that they went to look at .the ear, but that Fox did not purchase it. Martin testified that after looking at the car he went with Fox to the gas station and purchased a six-pack. of beer. While at the gas station, Martin testified that he received what he described as a “911” page requesting his mechanic services. Martin testified that instead of proceeding to the mechanic services requested by the page, he continued with Fox to his mother’s residence. Martin testified that he went into the home to offer Fox’s mother a beer. Martin admitted that he knew Fox’s mother was not typically home during the day. Once inside the home, Martin testified that he opened a beer for himself and put the remaining beers in the refrigerator after having offered them to the other persons in the house. Martin testified that he arrived at the home no later than 10:30 a.m. that day.

¶5. Also, Martin proffered four witnesses, through their live testimony and their deposition testimony. All four witnesses were arrested with Martin at the subject home, and they all testified that Martin did not touch any marijuana, that the marijuana was not his, that he did not sell marijuana, that he did not buy marijuana, that he did not possess marijuana, that he did not cut marijuana that day, and that he was at the home anywhere from thirty seconds to four minutes prior to the police entering the home. Martin’s own testimony reiterated these assertions. Further, Martin testified that, when the police entered the home, he was at the refrigerator and had just opened a beer, and not at the kitchen island where the marijuana was being cut and bagged.

¶ 6. Detective Richard Nations, Officer Preston Carter, and Officer Mike Cox, all of the Jackson Police Department on the day of Martin’s arrest, testified on behalf of the State. Upon entering the home to execute a valid search warrant, Detective Nations proceeded to the kitchen while Officers Carter and Cox proceeded to the back of the house. Detective Nations testified that upon entering the kitchen, he observed Martin standing at the kitchen island, with Martin’s hand stretched out over a bowl filled with small packages of marijuana, and that it appeared to Detective Nations that Martin had either just put a package of marijuana in the bowl or was in the process of reaching into the bowl to grab a package of marijuana.

¶7. Detective Nations, Officer Carter, and Officer Cox testified that they arrived at the house at 12:00 p.m. that day. Martin had testified that he arrived at the home no later than 10:30 a.m. that morning. Based on the testimony of Martin and his witnesses, the police would have arrived no later than 10:34 a.m. Neither Martin nor any of his witnesses offered any explanation for the eighty-six- to eighty-nine-and-one-half-minute discrepancy between their accounts of events that day and the testimony of all three officers of the time the officers arrived at the home.

¶8. On January 30, 2015, the circuit court ruled in favor of the State and denied Martin’s claim, finding that Martin did not meet his burden of proving his innocence by a preponderance of the evidence and that “Martin’s behavior [did] not comport with actual innocence.” That same day, Martin appealed the circuit court’s decision to this Court.

DISCUSSION

¶ 9. The question on appeal is whether the circuit court erred when it found that Martin failed to prove by a preponderance of the evidence that he did not possess marijuana with intent to distribute. Section 11-44-7(1) provides that the claimant must prove by a preponderance of the evidence that he did not commit the felony for which he was convicted. To prove a claim by a preponderance of the evidence, one must prove that his claim is more likely true than not true. Hickman v. State ex rel. Miss. Dep’t of Pub. Safety, 592 So.2d 44, 46 (Miss. 1991). The findings of a circuit-court judge sitting in a bench trial without a jury are reviewed under the same standard as a chancellor in that the reviewing court will not disturb the circuit court’s findings unless they are manifestly wrong or clearly erroneous, or the court applied an erroneous legal standard. City of Jackson v. Lewis, 153 So.3d 689, 693 (¶ 4) (Miss. 2014).

I. Possession of Marijuana with Intent to Distribute

¶ 10. On appeal, Martin asserts he did not possess marijuana with intent to distribute. “Possession of a controlled substance may be actual or constructive." Hymes v. State, 121 So.3d 938, 945 (¶ 27) (Miss. Ct. App. 2013) (citing Johnson v. State, 81 So.3d 1020, 1023 (¶ 27) (Miss. 2011)). “There must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Id. (citing Hudson v. State, 30 So.3d 1199, 1203 (¶ 10) (Miss. 2010)). Constructive possession is established when the defendant did not own the premises but was sufficiently tied to the drugs found there by placing himself in the midst of items implicating his participation in the processing of the substance. Knight v. State, 72 So.3d 1056, 1063 (¶ 26) (Miss. 2011) (quoting Dixon v. State, 953 So.2d 1108, 1113 (¶ 11) (Miss. 2007)).

¶ 11. Martin admitted that he was voluntarily in a home in which marijuana was actually being cut and bagged for distribution. Further, Detective Nations testified that upon entry, he observed Martin at the kitchen island with his hand outstretched, hovering over the bowl of marijuana with packaged bags of marijuana in it, and that it appeared to Detective Nations that Martin had either just placed a package of marijuana in the bowl, or that he was reaching for a package of marijuana. Detective Nations further testified that there was another bowl on the island of loose marijuana along with scissors for cutting the marijuana.

II. Witness Testimony

¶ 12. Witness testimony and a deposition statement that was admitted and read into the record were the only evidence considered at the restitution trial. “The trial judge has sole authority to determine the credibility of a witness when sitting as the trier of fact in a bench trial.” Matthews v. City of Madison, 143 So.3d 571, 573 (¶ 4) (Miss. 2014). “[The Court] will affirm a trial judge sitting without a jury on a question of fact unless substantial evidence shows the trial judge was manifestly wrong.” Id.

¶ 13. The circuit court found issue -with Martin testifying that he arrived at the house at 10:30 a.m. and was only there for a few minutes before police arrived, while the police did not execute the search warrant until 12:00 p.m. The court also found that it was inclined to believe Detective Nations when he testified that Martin and Fox were the only individuals in the kitchen when he entered, both were standing around the kitchen island, Fox had scissors and was cutting marijuana, and Martin was standing over a bowl of bagged marijuana and looked like he had either just placed a package of marijuana in it or was reaching for a package of marijuana.

¶ 14. In deciding Martin’s restitution case, the trial judge found the State’s witnesses, particularly Detective Nations, credible and Martin and his witnesses not credible. Findings of credibility are within a judge’s sound discretion when sitting as the fact-finder. Hymes, 121 So.3d at 944 (¶ 22) (citing Jones v. State, 920 So.2d 465, 472-73 (¶ 22) (Miss. 2006)) (“It is within the province of the [fact-finder] to decide which witnesses are credible and to resolve the conflicts in the testimony' that [it] hearts].”). On review, We find no manifest error in the trial judge’s weighing of the witnesses’ testimony,

¶ 15. Based on the record, we And Martin fails to present sufficient evidence to demonstrate -that he, more likely than not, did not constructively possess any marijuar na recovered from Fox’s home. Therefore, we agree with the circuit-court judge that Martin failed to prove by a preponderance of the evidence that he was actually inno=-cent and find Martin’s claim is without merit.

CONCLUSION

¶ 16. We affirm the Hinds County Circuit Court’s judgment denying Martin’s claim for wrongful-conviction restitution.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS P.JJ., ISHEE, CARLTON, FAIR, JAMES AND WILSON, JJ„ CONCUR. BARNES, J., NOT PARTICIPATING.

      . See also United States v. Mackey, 249 Fed. Appx. 420, 425 (6th Cir. 2007) (“The position of Mackey’s outstretched hands near the marijuana, scales, and baggies suggests that he was handling and packaging marijuana just prior to the officers’ entry[.]”j.


author: WILSON, J.,

text:
    Robert Andy PINTER, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01029-COA
    Court of Appeals of Mississippi.
    06/06/2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER N. AÍKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY T. GERBER
    BEFORE IRVING, P. J., FAIR AND WILSON, JJ. .
   WILSON, J.,

FOR THE COURT: -

¶ 1. Robert Andy Pinter was convicted of possession of at least one-tenth of a gram but less than two grams of methamphetamine, possession of less than thirty grams of marijuana, and possession of less than 100 dosage units of alprazolam (Xa-nax) and sentenced to serve a total of four years in the custody of the Mississippi Department of Corrections (MDOC) as a habitual offender. On appeal, Pinter argues that (1) Ris wife’s testimony that he had been known- to use marijuana and methamphetamine rises to the level of plain error or ineffective assistance of counsel; (2) the trial judge erred in denying his motion to suppress evidence of the drugs at issue and his alleged statement to police; (3) the evidence is insufficient to support the conviction or, alternatively, the verdict was against the overwhelming weight of the' evidence; and (4) his sentence as a habitual offender is illegal and plain error.

¶ 2. We find no error in Pinter’s trial and therefore affirm his convictions. We also hold that the trial court did not commit plain error by finding that Pinter is a habitual offender. Therefore, we also affirm Pinter’s sentence as a habitual offender on Count I, possession of methamphetamine. However, the State concedes error insofar as .the trial court sentenced Pinter as a habitual offender on Count III, possession of alprazolam, a misdemeanor offense that is outside the scope of the habitual offender statute. Therefore, we remand for resentencing on Count III only.

FACTS

¶ 3. On June 15, 2015, at approximately 10:45 a.m., Sebastopol Chief of Police Daniel Ogletree was observing traffic on Highway 21 from the parking lot of the Car-quest across from the Piggly Wiggly in Sebastopol. A Nissan Sentra passed by, and Chief Ogletree observed that its driver was not wearing a seatbelt, so he initiated a traffic stop. Chief Ogletree approached the vehicle, explained the reason for the stop, and asked the driver for his license. The driver, Pinter, said that the seatbelt was broken and that his license was suspended. Pinter gave Chief Ogletree his Mississippi Identification Card. Chief Ogletree called the Scott County Sheriffs Department, confirmed that Pinter’s license was suspended, and also learned that there was an active warrant for Pinter’s arrest. Chief Ogletree then placed Pinter in handcuffs and' under arrest and moved Pinter to the backseat of his patrol car.

¶4. Chief Ogletree then conducted an inventory search of the Sentra, In .the trunk, he found two- bags containing a crystal-like substance that was later determined to be methamphetamine, with a total combined weight of about half a gram; two bags containing a green leafy substance, later determined to be marijuana, with a total combined weight of approximately twenty-two grams; and a bag containing twenty-five pills, later determined to be alprazolam (Xanax). The drugs were on top of a large, open tool bag.. Chief Ogletree testified that he returned to. his patrol car and read Pinter his Miranda rights from a card that Chief Ogletree kept in his wallet. Chief Ogletree testified that Pinter listened and then stated that he understood his rights. Pinter did not ask for a lawyer or invoke his right to remain silent. Chief Ogletree showed Pinter the drugs and asked why he had them in the trunk of the car. According to Chief Ogletree, Pinter responded that “he liked the way that it made him feel whfen he ... used the drugs.”

¶ 5. Pinter was indicted for possession of at least one-tenth of a gram but less'than two grams of methamphetamine, possession of less than thirty .grams of marijuana, and possession of less than 100 dosage units of alprazolam. His case proceeded to a jury trial on June 6, 2016. Chief Ogletree and a forensic scientist from the Mississippi Crime Laboratory testified for the State.

¶ 6. After the State rested, Pinter’s wife, Hope Pinter, testified that she and Pinter lived in a camper on a lot outside of Sebas-topol. Hope’s mother and sister and their families also lived on the lot in a separate camper and trailer. A total of nine adults lived on the lot, and all had access to and drove the Sentra, which was registered tb Hope’s mother. Hope testified that her sister and her sister’s boyfriend had used the car the night before Pinter’s arrest 'and had returned that morning. On cross-examination, Hope acknowledged that Pinter worked in construction and owned a large bag of tools. Without objection, she also testified as follows:

Q. Has your husband been known to use weed—marijuana?
A. Uh-huh.
Q. He does?
A. Uh-huh.
Q. Xanax?.
A. No.
Q. Never seen him use Xanax before?
A. No.
Q. Never, not once?
A. No.
Q. Methamphetamine?
A, Yes, sir,

¶7. Pinter then took the stand in his own defense. Pinter testified that he did not see Chief Ogletree remove the drugs from the,Sentra, and he denied that the drugs belonged to him. Pinter also denied that he owned a tool bag. He testified that he only owned a “tool apron.” Pinter also denied that Chief Ogletree read him his Miranda rights or that he ever told Chief Ogletree that the drugs were his or that they made him feel good. Pinter testified that the Sentra belonged to his mother-in-law and that he only used it when he needed it. He testified on direct examination that he had used marijuana and methamphetamine. On cross-examination, he also admitted that he had used Xanax in the past. Pinter claimed that he had “no knowledge” whatsoever as to who owned the drugs at issue in this case.

¶ 8. The jury found Pinter guilty on all three counts. At Pinter’s sentencing hearing, the State offered to introduce certified copies of judgments reflecting seven prior felony convictions: two for grand larceny, three for burglary of a dwelling, and one each for aggravated assault and escape from a jail. Pinter’s counsel specifically stated that he did not object to the admission of the documents, but the documents were never formally admitted into evidence. The court then found that Pinter was a habitual offender, see Miss. Code Ann. § 99-19-81 (Rev. 2015), and sentenced him to serve a total of four years in MDOC custody, without eligibility for probation or parole. Pinter subsequently filed a motion for a new trial, which was denied, and a notice of appeal.

ANALYSIS

¶ 9. As stated at the outset of this opinion, Pinter raises four issues on appeal. We address these issues, three of which include two sub-issues, below.

I. Pinter’s Prior Drug Use

¶ 10. Pinter first argues that the admission of his wife’s testimony that he had “been known to use” marijuana and methamphetamine (see supra ¶ 6) constitutes plain error or that his attorney’s failure to object to these questions constitutes ineffective assistance of counsel. For the reasons that follow, we conclude that the testimony does not rise to the level of plain error. We decline to address any ineffective assistance claim without prejudice to Pinter’s right to raise the issue in a properly filed motion for post-conviction relief.

A. Plain Error

¶ 11. Pinter argues that evidence of his prior drug use was inadmissible under Mississippi Rules of Evidence 404(b) and 403 and that the trial court committed “plain error” by failing to sua sponte direct Pinter’s wife not to answer questions on the subject. We conclude that Pinter fails to demonstrate “plain error” for multiple reasons.

¶ 12. First, “in order to determine if plain error has occurred, we must determine if the trial court has deviated from a legal rule, whether that error is plain, clear, or obvious, and whether the error has prejudiced the outcome of the trial.” Green v. State, 183 So.3d 28, 31 (¶ 6) (Miss. 2016) (emphasis added; brackets and quotation marks omitted). We recently addressed a similar claim of “plain error” based on hearsay testimony admitted without a contemporaneous objection. There, we stated:

No “legal rule” requires a trial judge to exclude hearsay in the absence of an objection. Trial judges are not expected to strike or exclude hearsay sua sponte. Whether to object is a decision left to the discretion of counsel, who may have strategic reasons for not objecting.... [A] trial judge [is not required] to insert herself into the role of counsel and sua sponte raise hearsay objections on the defendant’s behalf (or risk subsequent reversal based on “plain error”). Because no “legal rule” requires that of a trial judge, the judge in this ease committed no error—plain or otherwise—by not acting sua sponte to prevent or strike [hearsay] testimony.

Shaheed v. State, 205 So.3d 1105, 1112 (¶ 21) (Miss. Ct. App. 2016).

¶ 13. The same reasoning applies to testimony about Pinter’s prior drug use. Such testimony may be admissible depending on its purpose, see M.R.E. 404(b)(2), and whether to object to it “is a decision left to the discretion of [trial] counsel, who may have strategic reasons for not objecting.” Shaheed, 205 So.3d at 1112 (¶ 21). As such, the trial judge in this case did not deviate from any “legal rule” by not inserting himself into the role of defense counsel and striking or prohibiting the testimony sua sponte. No error, plain or otherwise, was committed.

¶ 14. Moreover, precisely because there was no objection, we cannot say whether Hope’s testimony might have been elicited for a permissible purpose. Even if there had been a contemporaneous objection, evidence of Pinter’s prior drug use could have been admitted for any purpose other than proving his character in order to show that he acted in conformity therewith. M.R.E. 404(b). “When, as here, a defendant does not physically possess the illegal drugs, the State must prove constructive possession of the drugs in order to prevail.” Glidden v. State, 74 So.3d 342, 345 (¶ 12) (Miss. 2011). “To support a conviction for possession of a controlled substance, there must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Id. (quoting McClellan v. State, 34 So.3d 548, 553 (¶ 15) (Miss. 2010)) (emphasis added; quotation marks and brackets omitted). Thus, for example, it is conceivable that evidence of Pinter’s familiarity with the controlled substances at issue would have been relevant and admissible to show his awareness of the character of the contents of the bags, which were readily observable in the trunk of the car. Therefore, we also cannot say that it “is plain, clear, or obvious” that the evidence would have been inadmissible, had there been a proper objection. Green, 183 So.3d at 31 (¶ 6) (brackets omitted). This also forecloses any claim of “plain error.” Id.

¶ 15. Finally, when Pinter took the stand, his own attorney elicited the same testimony—that he had used marijuana and methamphetamine in the past. “[A] criminal defendant who fails to object to evidence introduced by the State may still have the issue reviewed on appeal for plain error. However, a criminal defendant who affirmatively introduces evidence himself may not then complain on appeal that he introduced that evidence.” Pascagoula-Gautier Sch. Dist. v. Bd. of Supervisors of Jackson Cty., 212 So.3d 742, 750 n.9 (Miss. 2016) (emphasis added; internal citation omitted); see also Fleming v. State, 604 So.2d 280, 289 (Miss. 1992) (“It is axiomatic that a defendant cannot complain on appeal concerning evidence that he himself brought out at trial.”). As noted above, a defendant claiming plain error must also show that the alleged error “prejudiced the outcome of the trial.” Green, 183 So.3d at 31 (¶ 6). Pinter cannot make the requisite showing of prejudice because his own attorney .separately elicited the same testimony,

¶ 16. For each of the foregoing reasons, Hope’s testimony about Pinter’s prior drug use was not “plain error.”

B. Ineffective Assistance

¶ 17. Pinter also argues that his trial counsel provided ineffective assistance by failing to object to the State’s questions about his prior drug use and then' eliciting the same testimony from him. To prevail on such a claim, a defendant must show not only that counsel’s performance fell below the minimum constitutional standard of Strickland v. Washington, 466 U.S. 668, 686-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), but also that counsel’s errors were prejudicial, i.e., “so serious that they deprived the defendant of a fair trial, that being a trial with a reliable result.” Harvard v. State, 928 So.2d 771, 781 (¶ 8) (Miss. 2006). “If either prong is not met, the claim fails.” Id.

¶ 18. Ordinarily, claims of ineffective assistance should be raised in a motion for post-conviction relief, not on direct appeal. As this Court has summarized: .

It is unusual* for this Court to consider a claim'of ineffective assistance of counsel when the claim is made on direct appeal because there is usually insufficient evidence within the record to evaluate the claim. Because an appellate court is limited to the trial record on direct appeal, issues of ineffective assistance of counsel are more appropriate in a motion for post-conviction relief. We may address such claims on direct ¡appeal only if the issues are based op facts fully apparent from the record. If the record is not sufficient to address the claims on direct appeal, the Court should dismiss the claims without prejudice, preserving the defendant’s right to raise the claims later in a properly filed motion for post-convietion relief.

Johnson v. State, 191 So.3d 732, 735-36 (¶ 13) (Miss. Ct. App. 2015), cert. denied, 202 So.3d 209 (Miss. 2016), cert. denied, - U.S. -, 137 S.Ct. 670, 196 L.Ed.2d 556 (2017) (citations, quotation marks, and alterations omitted).

¶ 19. Our Supreme Court has stated that, “[w]ith respect to the overall performance of the attorney, ‘counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections falls within, the ambit of trial strategy’ and cannot give rise to an ineffective assistance of counsel claim.” Carr v. State, 873 So.2d 991, 1003 (¶ 27) (Miss. 2004) (quoting Cole v. State, 666 So.2d 767, 777 (Miss. 1995)). On the record before us, we do not know whether trial counsel had strategic reasons for not objecting to the State’s questions to Hope or eliciting the same testimony from Pinter, As noted above, we also do not know whether the State could have articulated a proper purpose for the questions if an objection had been made. Under these circumstances, consistent with our usual practice, we decline to address Pinter’s ineffective assistance claim on direct' appeal. Cf. Webb v. State, 113 So.3d 592, 602 (¶ 41) (Miss. Ct. App. 2012) (declining to address a claim of ineffective assistance based on a failure to object‘to hearsay testimony because the reasons that counsel did not object were unclear from the record on direct appeal). We do so without prejudice to Pinter’s right to raise the issue in a motion for post-conviction relief.

II. Motion to Suppress

¶ 20. Pinter next argues that the trial judge committed reversible error by denying his motion to suppress his confession to Chief Ogletree and the drugs found in the Sentra. Pinter argues that his confession should have been excluded’ because the State failed to prove that the confession was voluntary or obtained in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He alleges that the warrantless search of the Sentra violated the Fourth Amendment to the United States Constitution. We address these issues in turn.

A. Miranda

¶21. “The voluntariness óf a waiver, or of a confession, is a factual inquiry that must be determined by the trial judge from the totality of the circumstances.” Houston v. State, 170 So.3d 542, 545 (¶ 12) (Miss. Ct. App. 2014) (citing Gavin v. State, 473 So.2d 952, 954 (Miss. 1985)). “This Court will not reverse a trial court’s finding that a confession was voluntary and admissible as long as the trial court applied the correct principles of law, and the finding is factually supported by the evidence.” Id. (citing Greenlee v. State, 725 So.2d 816, 825 (¶ 21) (Miss. 1998)). “Further, where there is conflicting evidence about a confession’s admissibility, this Court ‘wilt not disturb the trial court’s finding unless it appears clearly contrary to the overwhelming weight of the evidence.’” Id. (quoting Wiley v. State, 465 So.2d 318, 320 (Miss. 1985)).

¶ 22. As noted above, Chief Ogletree testified that he read Pinter his Miranda rights, and Pinter “stated that he did understand” those rights. Pinter5 denied that this occurred, but the trial judge obviously found Chief Ogletree’s testimony more credible, and Pinter does not challenge that credibility -determination in this- appeal. Rather, Pinter argues that even if he “stated that he did understand” his rights, that did not amount to a valid waiver of those rights.

¶ 23. Pinter’s argument is without merit. In Houston, supra, this Court held that the defendant’s confession was admissible because he confessed after he was advised of his Miranda rights and stated “that he understood his rights,” even though he then “refused to sign [a] Miranda waiver.” Houston, 170 So.3d at 544, 546 (¶¶ 5, 13-14). Likewise in this case, Chief Ogletree testified that Pinter voluntarily confessed after being advised of his rights and indicating that he understood those rights. Pinter’s confession is no.t inadmissible simply because he did not expressly state orally or in writing that he “waived” his right to counsel or his right to remain silent. Odom v. State, 769 So.2d 189, 196 (¶ 20) (Miss. Ct. App. 2000) (“That Odom did not waive his rights in writing is of nó consequence since the lack of a written waiver does not invalidate the waiver.”). As the United States Supreme Court has explained:

An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably ... necessary ... to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.... [M]ere silence is not enough. That does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights.... [I]n at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.

North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (emphasis added).

¶ 24. Consistent with iSutler and Houston, the trial judge did not err in finding that Pinter’s confession was voluntary and admissible. The confession immediately followed Pinter’s express statement that he understood the Miranda rights that had just been read to him. This supports the conclusion that Pinter voluntarily waived his rights.

B. Fourth Amendment

¶ 25. Pinter next argues that the trial judge committed reversible error by denying his motion to suppress the methamphetamine, marijuana, and Xanax found in the trunk of the Sentra. The State responds that the search of the car was a valid “inventory search.”

¶26. “In reviewing the denial of a motion to suppress, we must determine whether the trial court’s findings, considering the totality of the circumstances, are supported by substantial credible evidence.” Gore v. State, 37 So.3d 1178, 1188 (¶ 25) (Miss. 2010) (quoting Moore v. State, 933 So.2d 910, 914 (¶ 9) (Miss. 2006)). “Where supported by substantial credible evidence, this Court shall not disturb those findings.” Moore, 933 So.2d at 914 (¶ 9). “Review of the record is not limited to evidence presented to the trial judge at the suppression hearing; this Court may look to the entire record to determine whether the trial judge’s findings are supported by substantial evidence.” Galloway v. State, 122 So. 3d 614, 669 (¶ 181) (Miss. 2013).

¶27. “It is common practice for the police to conduct an inventory of the contents of vehicles they have taken into their custody or are about to impound.” 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 7.4(a) (5th ed. 2010). “Inventory searches have two purposes: to protect the vehicle and the property in it, and to safeguard the police or other officers from claims of lost possessions.” United States v. Ducker, 491 F.2d 1190, 1192 (5th Cir. 1974) (quoted in LaFave, supra); accord Black v. State, 418 So.2d 819, 821 (Miss. 1982). An inventory search may also serve to “protect[] the police from danger.” Green v. State, 183 So.3d 78, 82 (¶ 9) (Miss. Ct. App. 2015), aff'd, 183 So.3d 28 (Miss. 2016) (quoting United States v. Lage, 183 F.3d 374, 380 (5th Cir. 1999)). Such a search is reasonable and consistent with the Fourth Amendment when “it is clear that the procedure used is a valid inventory and is not merely a pretext for a search, whether or not there is some suspicion that contraband or other evidence may be found.” Ducker, 491 F.3d at 1192. Our “Supreme Court [has] held that ‘it is permissible for officers to conduct an inventory search of a vehicle when the circumstances require it to be impounded.’ ” Logan v. State, 987 So.2d 1027, 1031 (¶ 14) (Miss. Ct. App. 2008) (quoting Black, 418 So.2d at 821) (brackets omitted). Our Supreme Court has also held that a valid inventory search may extend to the locked trunk of a car. See Robinson v. State, 418 So.2d 749, 755-56 (Miss. 1982).

¶28. This Court has also recognized that police may conduct an inventory search “while the vehicle is still on the highway awaiting towing” and that the search “does not offend Fourth Amendment principles so long as [it] is made pursuant to standard police procedures and for the purpose of protecting the car and its contents.” O’Connell v. State, 933 So.2d 306, 309 (¶ 10) (Miss. Ct. App. 2005) (quoting United States v. Como, 53 F.3d 87, 92 (5th Cir. 1995)) (quotation marks omitted). “If there is no showing [that the police acted in] bad faith or for the sole purpose of investigation, evidence discovered during an inventory search is admissible.” Id. at (¶ 11) (quoting United States v. Gallo, 927 F.2d 815, 819 (5th Cir. 1991)). Moreover, “there is no requirement that the prosecution submit evidence of written procedures for inventory searches; testimony regarding reliance on standardized procedures is sufficient.” Id. at (¶ 12) (citing Como, 53 F.3d at 92); see also Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) (holding that “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence” but may be carried out based on an “established routine” of the law enforcement agency).

¶ 29. On appeal, Pinter does not dispute that he was validly placed under arrest based on the outstanding warrant for his arrest. Nor does he dispute that the circumstances of his arrest required that the car be towed, as there were no other adults in the car with Pinter. Because the car was about to be towed, it was not unreasonable and did not violate the Fourth Amendment for Chief Ogletree to search the vehicle to determine whether it contained any valuable contents that needed to be safeguarded. Logan, 987 So.2d at 1031 (¶ 14). Pinter’s only argument on appeal is that the inventory search was not “conducted pursuant to standard, routine police procedures” and was a mere “pretext concealing an investigatory police motive.” Mitchell v. State, 792 So.2d 192, 206-07 (¶ 59) (Miss. 2001).

¶ 30. We conclude that the trial judge’s finding that the search was a valid inventory search was supported by the evidence. Chief Ogletree testified that the search was an inventory search and that its purpose was to determine whether there was anything “valuable inside the vehicle.” Chief Ogletree also testified that it was his normal practice to conduct an inventory search when he made an arrest in the course of a traffic stop. As noted above, the State is not required to introduce proof of written procedures; testimony regarding standard practices is sufficient. O’Connell, 933 So.2d at 309 (¶ 12). Pinter argues that Chief Ogletree only testified as to his standard procedure and “did not testify that this was the Police Department’s standardized procedure.” However, this argument ignores that Chief Ogletree was the chief of police for the town of Sebasto-pol at the time of the arrest. There is nothing in the record to suggest that the standard practice of the Sebastopol Chief of Police was not the standard practice of the Sebastopol Police Department.

¶ 31. “If there is no showing [that the police acted in] bad faith or for the sole purpose of investigation, evidence discovered during an inventory search is admissible.” Id. at (¶ 11) (quoting Gallo, 927 F.2d at 819). There was no such showing in this case. “[C]onsidering the totality of the circumstances,” we conclude that the trial judge’s findings “are supported by substantial credible evidence.” Gore, 37 So.3d at 1188 (¶ 25) (quoting Moore, 933 So.2d at 914 (¶ 9)).

III. Weight and Sufficiency of the Evidence

¶ 32. Pinter next argues that he is entitled to a judgment of acquittal or, alternatively, a new trial because the State presented insufficient evidence to sustain the conviction or, alternatively, the verdict is against the overwhelming weight of the evidence. Specifically, Pinter argues that there was insufficient evidence of “incriminating circumstances” to establish that he had constructive possession of the illegal drugs, especially, since he was not the owner of the Nissan Sentra. The State responds that the evidence—including Pinter’s own statement to Chief Ogletree and Hope’s testimony that he worked in construction and owned a tool bag—was more than sufficient to uphold the verdict and conviction.

1133. The applicable standards of review are well settled. When the defendant challenges the sufficiency of the evidence, “the relevant question is whether,after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The issue on appeal is not whether we would have found Pinter guilty based on the evidence presented at trial; rather, his conviction. must be affirmed if. there was enough evidence for “any rational trier of fact” to have rendered a guilty verdict. Id. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice,” Id. at 844 (¶ 18). The evidence must be “[vjiewed in ‘ the light most favorable to the verdict,” and we will affirm unless “[t]he trial court ... abuse[d] its discretion in denying a new trial[.]" Id. at (¶ 19).

¶34. Pinter argues that the State was required to present evidence of “incriminating circumstances” other than mere “physical proximity” in order to convict him on a theory of “constructive possession” of the drugs at issue. Curry v. State, 249 So.2d 414, 416 (Miss. 1971). He then argues that his statement to Chief Ogle-tree is not an “incriminating circumstance,” reasoning that he only said that “he liked the way that [the drugs] made him feel” and did not admit to actual ownership or possession of the drugs.

¶ 35. We disagree. Chief Ogletree testified that he asked Pinter only one question, which was “why he [(Pinter)] had ... multiple types of drugs together” (emphasis added). A rational trier of fact certainly could have interpreted Pinter’s response to the question as a confession that the drugs belonged to him. In addition, Chief Ogletree testified that the drugs were found at the top of an open bag of tools in the trunk of the car, and Hope testified that Pinter worked in construction and owned a large tool bag. Thus, the State presented evidence that a crime was committed and'that Pinter effectively confessed to it. This is sufficient evidence to sustain the verdict. See, e.g., Cotton v. State, 675 So.2d 308, 313 (Miss. 1996) (explaining that a confession corroborated by “independent proof’ of the “body or substance of the crime” is sufficient to prove guilt beyond a reasonable doubt). For the same reasons, the verdict was not against the overwhelming weight of the evidence, and the trial judge did not sanction an injustice or abuse his discretion by denying Pinter’s motion for a new trial.

IV. Sentence as a Habitual Offender

A. Habitual Offender Status

¶ 36. Pinter next argues that the trial court erred by sentencing him as a habitual offender because the State failed to introduce competent evidence to prove his habitual offender status. Specifically, Pinter argues that although the transcript of the sentencing hearing reflects that the State offered certified judgments of several felony convictions and sentences, the documents were not formally admitted into evidence and therefore cannot support his sentence as a habitual offender under section 99-19-81, Although Pinter did not raise this issue in the trial court, -he argues that the claim is not procedurally barred because the trial court committed “plain error” and imposed an illegal sentence.

¶ 37. Pinter relies primarily on Grayer v. State, 120 So.3d 964, 969 (¶¶ 16-19) (Miss. 2013). In Grayer, the Court held that “[t]o sentence a defendant as a habitual offender, all that is required is that the accused be properly indicted as [a] habitual offender, that the prosecution prove the prior offenses by competent evidence, and that the defendant be given a reasonable opportunity to challenge the prosecutor’s proof.” Id. at (¶ 18) (quotation marks and brackets omitted). At Grayer’s sentencing hearing, “the State informed the circuit court that it had certified copies of Grayer’s prior convictions and had provided copies to Grayer and his counsel,” but the State “failed to place the certified copies into the record or to offer any evidence to support Grayer’s habitual-offender status, other than a recitation of his prior felony convictions.” Id. at (¶ 19). The Supreme Court held that “the State failed to prove Grayer’s prior convictions by competent evidence” and, therefore, the circuit court committed “plain error” by sentencing Grayer as a habitual offender. Id.; accord Hull v. State, 174 So.3d 887, 900-02 (¶¶ 41-48) (Miss. Ct. App. 2015).

¶ 38. However, in Carr v. State, 178 So.3d 344 (Miss. Ct. App. 2014), aff'd, 178 So.3d 320 (Miss. 2015), this Court held .that the trial judge did not commit plain error by sentencing Carr as a habitual offender because “the State moved for ... qopies of [Carr’s prior] convictions to be admitted,” and “Carr did not object.” Carr, 178 So.3d at 348 (¶ 11). Although “the trial court never formally admitted the convictions into the. record,” this Court held that Carr’s.sentence as a habitual offender did not rise to •the level of “plain error” because the error—the failure to.formally admit the documents into evidence—did not “seriously affect[ ] the fairness, integrity or public reputation of judicial proceedings.” Id. (quoting Weems v. State, 63 So.3d 579, 584 (¶ 32) (Miss. Ct. App. 2010)). in so holding, we emphasized that “Carr [did] not take issue with the admissibility or validity of the convictions, only that the proper procedure was not followed.” Id. at 348-49 (¶ 12).

¶39. At Pinter’s sentencing hearing, counsel for the State first stated that he had in his possession and “would submit for the Court’s consideration” “a certified, self-authenticating copy of the judgment” of conviction for two felonies (grand larceny and burglary of a dwelling)'. Counsel recited the cause numbers, dates, and sentences associated with those convictions. Pinter’s attorney confirmed 'to the court that he had a copy of the judgment and that he “accepted] this as a certified copy.” The State then stated that it had and “would submit” a “certified ..., self-authenticating” copy of a judgment showing three additional felony convictions (aggravated assault, grand larceny, and escape from jail). Again, the State provided cause numbers, dates, and sentences for each conviction. Defense counsel confirmed that he had been provided and had reviewed copies of this judgment as well. The Court then asked, “So no objection to its admission?” And defense counsel confirmed: “No objection.” Finally, the State offered that it “would submit” a “certified” and “self-authenticating” copy of a judgment showing two additional convictions for residential burglaries. The State again recited cause numbers, dates, and sentences imposed. The trial judge then asked defense counsel, “No objection?” And defense counsel confirmed, “No objection.” The court then sentenced Pinter as a habitual offender, again without objection by Pinter.

¶ 40. The State argues that on the specific facts of this case, Grayer is distinguishable, Carr is controlling, and Pinter’s sentence is not plain error. We agree. In Grayer, counsel for the State recited Grayer’s prior convictions and stated that he had copies but “failed to place the certified copies into the record or to offer any evidence to support Grayer’s habitual-offender status.” Grayer, 120 So.3d at 969 (¶ 19) (emphasis added); see also Hull, 174 So.3d at 901-02 (¶ 47) (distinguishing Carr on the ground that “the State made no ... motion” to admit certified copies of Hull’s convictions). In contrast, similar to Carr, the transcript of Pinter’s sentencing hearing shows that the State intended to offer as evidence certified copies of judgments showing seven prior felony convictions. In addition, Pinter’s attorney specifically confirmed that he had been provided with and had reviewed the convictions and did not object to their admission. As in Carr, the fact that the “the trial court never formally admitted the convictions into the record” was an oversight, Carr, 178 So.3d at 348 (¶ 11), but it was not a “manifest miscarriage of justice.” Walters v. State, 206 So.3d 524, 530 (¶ 16) (Miss. 2016) (holding that a court will reverse based on “plain error” only if the “error ... resulted in a manifest miscarriage of justice”). Had Pinter raised this issue in the-trial court, the issue could have been addressed quickly and easily, and Pinter would have no argument on appeal. As in Carr, under these circumstances, we conclude that the oversight and Pinter’s sentence as a habitual offender do not “seriously affect[ ] the fairness, integrity or public reputation of [the] judicial proceedings.” Carr, 178 So.3d at 348 (¶ 11) (quoting Weems, 63 So.3d at 584 (¶ 13)).

B. Habitual Offender Sentence on Count III

¶ 41. As a final alternative argument, Pinter contends that the trial court committed plain error by sentencing him as a habitual offender on Count III, possession of alprazolam, because that offense was only a misdemeanor. See Miss. Code Ann. § 41-29-139(c)(3)(A) (providing that simple possession of less than 100 dosage units of a Schedule III, IV, or V controlled substance “is a misdemeanor and publishable by [confinement of] not more than one ... year”). The habitual offender statute provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss. Code Ann. § 99-19-81 (emphasis added).

¶ 42. Based on the plain language of the statute, the State concedes that the trial court erred by sentencing Pinter as a habitual offender on Count III, a misdemean- or offense. We accept the State’s confession of error, vacate Pinter’s sentence on Count III only, and remand for the circuit court to sentence him on Count III as a non-habitual offender.

CONCLUSION

¶ 43. In summary, we hold that the admission of testimony regarding Pinter’s prior drug use was not plain error, that the trial judge did not err by denying Pinter’s motion to suppress the drugs at issue or Pinter’s statement to Chief Ogle-tree, that there was sufficient evidence to support the conviction, that the jury’s verdict was not against the weight of the evidence, and that Pinter’s sentence as a habitual offender on Count I was not plain error or a manifest miscarriage of justice. Therefore, we affirm Pinter’s convictions and the sentences imposed on Count I and Count II. However, Pinter should not have been sentenced as a habitual offender on Count III, a misdemeanor offense. Therefore, we vacate that sentence and remand for resentencing on Count III only. We also decline to address Pinter’s claim of ineffective assistance of counsel; we do so without prejudice to his right to raise such a claim in a properly filed motion for post-conviction relief.

¶ 44. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND VACATED AND REMANDED IN PART. THE CONVICTIONS OF COUNT I, POSSESSION OF AT LEAST ONE-TENTH BUT LESS THAN TWO GRAMS OF METHAMPHETAMINE, COUNT II, POSSESSION OF LESS THAN THIRTY GRAMS OF MARIJUANA, AND COUNT III, POSSESSION OF LESS THAN 100 DOSAGE UNITS OF AL-PRAZOLAM, ARE AFFIRMED, AND THE SENTENCES FOR COUNTS I AND II OF THREE YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR REDUCTION OF SENTENCE, AND TO PAY FINES OF $2,000 AND $250, ARE AFFIRMED. THE SENTENCE FOR COUNT III IS VACATED, AND THIS CASE IS REMANDED FOR RESEN-TENCING ON COUNT III ONLY. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . See Miss. Code Ann. § 41-29-139(c)(1)(B) (Supp. 2016) (providing that simple possession of more than one-tenth grams but less than two grams of a Schedule 1 or II substance other than marijuana is punishable by imprisonment for not more than three years); id. § 41-29-139(c)(2)(A) (providing that simple possession of less than thirty grams of marijuana is a misdemeanor punishable by a fine of $100 to $250); id. § 41-29-139(c)(3)(A) (providing that simple possession of less than 100 dosage units of a Schedule III, IV, or V substance is a misdemeanor punishable by confinement of not more than one year).

      . Pinter may not file such a motion in the circuit court until he first obtains permission from the Mississippi Supreme Court." See Miss. Code Ann. § 99-39-7 (Rev. 20-15).

      . Only Pinter’s nephew, who was about ten years old, was with him. Chief Ogletree called another officer to come and get the child.

      . The State also argues that Pinter waived his weight-of-the-evidence argument because his new trial motion was untimely. However, the State acknowledges that Pinter preserved his challenge to the sufficiency of the evidence. We will consider both of these closely related issues, notwithstanding the possible procedural bar to one.

      . On writ of certiorari, the Supreme Court "limit[ed] the question on review to whether [its] decision in [Gowdy v. State, 56 So.3d 540 (Miss. 2010)] applies retroactively.” Carr, 178 So.3d at 321 (¶ 6) (citing M.R.A.P. 17(h)).