author: FAIR, J.,

text:
    George LOMAX, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00844-COA
    Court of Appeals of Mississippi.
    02/21/2017
    Rehearing Denied June 20, 2017

      HOLMES COUNTY CIRCUIT COURT, JANNIE M. LEWIS, J.
    DAMON RAMON STEVENSON, ATTORNEY FOR APPELLANT.
    OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, ATTORNEY FOR APPELLEE.
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. George Lomax was convicted of the sexual battery of Abby, a sixteen-year-old student at the high school where Lomax was assistant principal. Lomax was accused of ordering the girl to an unoccupied room, where he instructed her to remove her clothes and had sex with her. The victim reported the incident a short time later, and Y-DNA consistent with Lomax’s was found in her underwear. Lomax was convicted, and he appeals, challenging the trial court’s decisions on jury selection and evidentiary issues. We find no error and affirm.

DISCUSSION

1.Prosecution Challenge for Cause

¶2. During voir dire, the prosecution successfully challenged for cause a juror whose niece and nephew had been represented by Lomax’s attorney in a prior felony case. On appeal, Lomax contends that this was an insufficient basis to strike the juror for cause because she maintained she could still be fair and impartial.

¶ 3. “Generally, a juror removed on a challenge for cause is one against whom a cause for challenge exists that would likely affect his competency or his impartiality at trial.” Berry v. State, 703 So.2d 269, 292 (¶85) (Miss. 1997) (citation omitted). But “[t]he selection of jurors is a judgment eall peculiarly within the province of the circuit judge, and one we will not on appeal second guess in the absence of a record showing a clear abuse of discretion.” Adkins v. Sanders, 871 So.2d 732, 740 (¶31) (Miss. 2004) (citation and internal quotation marks omitted). The “trial court is entitled to deference when its for cause strikes are reviewed because of its ability to evaluate the demeanor of potential jurors ....” Berry, 703 So.2d at 292 (¶87).

¶ 4. Contrary to Lomax’s contentions, it does not appear that the juror was struck for cause because of her family’s prior representation by Lomax’s attorney. Instead, the juror had failed to respond when the venire was questioned regarding whether a family member had been accused of a crime. She attributed this to low blood sugar and back pain.

¶ 5. Because of the juror’s failure or inability to respond to questions during voir dire and her admitted health issues that would have made it difficult for her to serve on the jury, we can find no abuse of discretion in the trial court’s decision to excuse her for cause.

2. Defense Challenge for Cause

¶ 6. Next, Lomax challenges the trial court’s refusal to remove for cause Juror 8, who had stated he was “friends with” the victim’s father. When questioned whether he could be impartial, Juror 8 stated that he could. No further information was elicited from this venireman, and the trial court refused to strike him for cause.

¶7. As noted in our discussion of the previous issue, we afford great deference to the trial court in deciding whether to remove a juror for cause. See Berry, 703 So.2d at 292 (¶85). Moreover, “[b]efore a claim related to a denial of a challenge for cause may be valid, (1) the defendant must have exhausted all of his peremptory challenges and (2) an incompetent juror must be forced by the trial court’s erroneous ruling to sit on the jury.” Burgess v. State, 178 So.3d 1266, 1276 (¶28) (Miss. 2015).

¶ 8. Lomax struck Juror 8 with a peremptory challenge, and he used all six of his peremptory challenges. But he makes no effort to show that an incompetent juror nonetheless sat on the jury. Thus, Lo-max has failed to show reversible error on this point.

3. Batson Challenge

¶ 9. Next, we address Lomax’s contention that the trial court erred in overruling his Batson challenge to the prosecutor’s use of peremptory challenges, which were alleged to have been used in a discriminatory manner against African-American males.

¶ 10. “When a Batson issue arises, the trial judge acts as the finder of fact.” Walker v. State, 815 So.2d 1209, 1215 (¶12) (Miss. 2002). Appellate courts therefore afford “great deference to a trial-court ruling on a Batson challenge.” Hughes v. State, 90 So.3d 613, 626 (¶88) (Miss. 2012).

¶ 11. Batson challenges in the trial court proceed through a three-step process:

(1) the defendant must make out a pri-ma facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose;
(2) once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial [or sexual] exclusion by offering permissible, race-neutral justifications for the strikes; and ■
(3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial [or sexual] discrimination.

Pruitt v. State, 986 So.2d 940, 942-43 (¶8) (Miss. 2008).

¶ 12. Here, the Batson challenge did not proceed, past the first step. The State tendered a jury to Lomax after using two of its six peremptory challenges, which Lo-max challenged under Batson. Both of the strikes were against black males. The panel tendered by the State consisted of eleven African-Americans (three male and eight female) and one white male. Lomax offered in support of his challenge only what was essentially a conelusory statement that the jurors could -not be struck for cause.

¶ 13. On appeal, Lomax contends that this case presents a novel question under Mississippi law — 'Whether' race/sex combinations constitute a cognizable group for Batson purposes. In Ross v. State, 16 So.3d 47, 58-60 (¶¶28-32) (Miss. Ct. App. 2009), this Court observed that the question was one of first impression in Mississippi and “a developing and divisive issue” in other courts. But the issue arose in Ross in the context of assertions of plain error and ineffective ¿ssistance of counsel, and this Court did not reach the merits of the argument. See id. at 60 (¶32). We likewise find no need to resolve the question today, because Lomax’s challenge fails even if we assume black male veniremen are a cognizable group for the purposes of this analysis.

¶ 14. “A defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. If the defendant fails to make out a prima facie case showing a discriminatory purpose, the inquiry ends,” Smith v. State, 90 So.3d 122, 132 (¶37) (Miss. Ct. App. 2012) (citations and internal quotation marks omitted).

¶ 15. Lomax bases his argument almost entirely on his unsupported assertions that the prosecutors struck two- of the three black-male veniremen offered and that the only remaining black male juror was Juror 8, who had identified himself as a “friend” of the victim’s father. But the record simply does not bear that claim out. Instead, it was observed on the record, without contradiction, that the jury tendered, by the prosecution had four males, three of whom were black, and eight black females. Otherwise, Lomax offers only the unsupported claim that there was nothing to distinguish thé struck jurors from those who were accepted by the State. This assertion seems to be manifestly false, as both of the veniremen who were struck admitted to previously having been accused or convicted of crimes — one had served three years of nonadjudicated probation for grand lar-cey, and the other had recently faced charges in a second-offense DUI. We find no abuse of discretion in the trial court’s finding that Lomax failed to make a prima facie case of discrimination in the prosecutor’s peremptory strikes.

4. Admission of Hearsay

¶ 16. Next, Lomax contends that his attorney was constitutionally ineffective in failing to object to hearsay testimony relating statements of the victim to a friend, an investigator, and an attending nurse. He also contends that admission of the statements was erroneous. We address that contention first.

¶ 17. Lomax admits that he failed to object at trial to any testimony he now complains of on appeal, but he does not argue that admitting the evidence amounted to plain error. Consequently, these contentions are barred on appeal. Redmond v. State, 66 So.3d 107, 110-11 (¶11) (Miss. 2011).

5. Ineffective Assistance of Counsel

¶ 18. The gravamen of Lomax’s complaints on these issues is his claim, that his counsel was constitutionally ineffective for failing to object to hearsay statements of the victim. The first was a short summary of the incident, related by a schoolmate of the victim. The friend was the first person the victim told about.the incident, a short time after it actually occurred. She described the victim as visibly shaken — trembling, hyperventilating, and crying. Lomax also complains about short summaries of the incident as related by the victim to a police investigator, and, a short time later, to an attending nurse. Both of these also occurred within a few hours of the incident. The nurse testified that the account given to her was for the purpose of the victim’s medical treatment, but she also described the victim as still under the stress of the incident; while she was examined, the victim looked downwards and manifested a “flat affect” (meaning a severe reduction in emotional expressiveness). Finally, Lomax complains about hearsay testimony from the victim’s friend that, some time later, the victim had stated that she was telling the truth. We note, also that the victim testified at the trial and was subject to cross-examination.

¶ 19'. The Mississippi Supreme Court'has stated:'

It is unusual for this [cjourt to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal. This is 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 .... [WJhere the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief. This Court will rule on the merits on the rare occasions 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 v. State, 863 So.2d 776, 825 (¶171) (Miss. 2003) (internal citations and quotations omitted). Here, the State expressly declines to stipulate that -the record is adequate to allow this Court to make a determination.

¶ 20. To succeed on an ineffective-assistance-of-counsel claim, Lomax must satisfy the two-pronged test laid out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476-77 (Miss. 1984). “First, the defendant must show that counsel’s performance was deficient .... Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 477 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

¶ 21. The record here does not affirmatively indicate that Lomax suffered denial of effective assistance of counsel of constitutional dimensions. Instead, it appears that much of the complainedrof hearsay was either harmless or would have fallen within the hearsay exceptions for excited utterances and statements for the purpose of medical diagnosis or treatment. See M.R.E. 804(2), (4). But because the State has not stipulated that the record is adequate for final disposition of this issue, we decline to decide it, and we deny relief without prejudice to Lomax’s right to seek post-conviction relief if he chooses to do so.

6. Prosecutorial Misconduct

¶22. Lomax next contends that the prosecutor committed misconduct during the direct examination of the victim’s friend, to whom the victim had first disclosed the incident. The prosecutor had asked the friend how the other children at school had reacted to the victim’s allegations. Lomax objected on the grounds of relevance, and his objections were overruled. The friend answered that the other students’ responses had been negative and that they treated the victim as if she had lied. The prosecutor then (after another relevance objection) asked how the victim had felt about this, and the following exchange occurred:

Q. Did [the victim] tell you how this made her feel with kids talking [-] making fun of her and talking about her?
A. Yes, she said. She said it made her feel bad. Because she wasn’t lying. She was telling the truth, I mean.
Q. As far as your personal knowledge had Mr. Lomax done anything inappropriate around you?
[Lomax’s attorney]: Objection, Your Honor.

THE COURT: Sustained.

¶23. Lomax contends on appeal that “this question was wholly inappropriate and inflammatory and denied [him] a fair trial by implying that [he] was guilty of other misconduct.”

¶ 24. We agree that a prosecutor may not use leading questions to insinuate misconduct of the defendant, nor may she ask questions without a good faith basis. Hosford v. State, 525 So.2d 789, 793 (Miss. 1988). But in this particular instance, the prosecutor’s question may have been an attempt to clarify the witness’s prior answer as to whether the witness personally knew the victim was not lying or whether she was just relating what the victim had told her. Regardless, Lomax’s objection was sustained. “The rule is well established that when an isolated prejudicial question or comment by the prosecution is promptly objected to and the objection is sustained, and particularly when the circuit judge instructs the jury to disregard the incident, there is a presumption the action on the part of the trial court cured the error.” Smith v. State, 530 So.2d 155, 161 (Miss.1988). While the trial court did not instruct the jury to disregard that particular question, Lomax did not ask it to do so. The trial judge did, however, give jury instruction C-CR-1, which stated in relevant part that the jury “should not speculate as to possible answers to questions which the Court did not require to be answered, and ... should not draw any inference from the content of those questions.”

¶ 25. We conclude that Lomax has failed to show any reversible error on this point.

7. Exclusion of DNA Evidence

¶ 26. Finally, Lomax contends that the trial court “erred in refusing to allow evidence that the DNA testing of [the victim’s] panties revealed the presence of another male profile.” This contention is perplexing, as the trial judge appears to have made no such decision, and the jury heard the evidence Lomax claims was precluded — that in addition to Y-DNA consistent with that of Lomax, trace amounts of Y-DNA from at least two other male individuals were found on the victim’s underwear. The jury also heard that sexual contact was one possible source of the Y-DNA.

¶ 27. We find no merit to this issue.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWENTY YEARS TO SERVE, FOLLOWED BY FIVE YEARS OF SUPERVISED PROBATION AND FIVE YEARS OF UNSUPERVISED PROBATION, AND TO REGISTER AS A SEX OFFENDER, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.

      . We use fictitious names to protect the identity of minors who are victims of sexual abuse.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Lomax initially made the Batson challenge immediately after the State struck its first venireman, who was the very first venireman on the list (i.e., Juror 1). The trial judge withheld ruling on the objections until the entire panel was tendered.

      . The State’s expert testified that Y-DNA could be also transferred by casual contact, from a variety of sources including skin cells, and that the strength of the samples did not necessarily imply more significant contact.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Theotis RANDLE a/k/a Theodis Randle, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00981-COA
    Court of Appeals of Mississippi.
    02/21/2017
    Rehearing Denied June 6, 2017

      MARK ANDREW CLIETT, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY'GENERAL BY: LADONNA C. HOLLAND, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ. '
   BARNES, J.,

FOR THE COURT:

¶ 1. Theotis Randle was convicted of sexual battery by a Clay County Circuit Court jury and sentenced to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended on postrelease supervision. He appeals his conviction, claiming the evidence was insufficient , to support the verdict and that errors during the trial warrant a reversal of his conviction. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On March 9, 2010, twenty-year-old “Carol” was alone at her parents’ home after taking her father to the doctor. Her father had left the house to go to the pharmacy • with another family member. When the doorbell rang a few minutes later, Carol assumed her father had returned to retrieve his bag of prescription medications he had left behind; so she unlocked the door, turned the handle, and began to walk away with her back to the door. She then felt someone “bear hug” her from behind, and she was forced to the couch in the living room. When she managed to turn her head, she saw Randle, a handyman who occasionally worked for her grandmother. Randle pinned Carol down, shoved his elbow into her back, and used his other hand to pull down her pants and underwear. Carol initially struggled and attempted to reach for a phone, but froze in shock when Randle began to rape her. When he finished a few minutes later, he zipped his pants, told her he would “see [her] later,” and left the home.

¶ 3. Carol called her cousin, a registered nurse, who advised her to contact law enforcement and have a rape kit administered. Her grandmother and aunt arrived shortly thereafter, and Carol was taken to the sheriffs department, where she gave a statement to Deputy Ramirez Williams. She was then taken to the hospital to have a rape kit administered. Randle gave a statement to Deputy Williams the following day, denying that' he had sex with Carol. A buccal swab (DNA) was taken from Randle and sent to a laboratory. This sample from Randle matched the vaginal sample taken from Carol.

¶ 4. Randle was charged with sexual battery. At trial, Carol said she had known Randle for a few years, and he had made uncomfortable, inappropriate sexual comments toward her prior to the incident. She also recounted one incident where he “rubbed up against [her]” when she walked by him in a hallway while he was painting. She told him to not touch her, and he “backed off.” Carol told her father about Randle’s ongoing behavior approximately two to three months before the rape, and her father told Randle to leave the girl alone.

¶ 5. Randle amended his version of the event at trial, now claiming that the two had consensual sex on the day in question. He said he offered Carol $50, but he never paid her. Randle explained he initially lied to law enforcement because he was scared.

¶ 6. The jury convicted Randle of sexual battery, and he was sentenced to twenty-five years in the custody of the MDOC, with five years suspended on postrelease supervision. He filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the motion, and Randle now appeals. Finding no merit to the issues raised by Randle, we affirm the judgment.

DISCUSSION

I. Whether there was sufficient evidence to support the verdict and whether the verdict was against the overwhelming weight of the evidence.

¶ 7. The jury was instructed that if it found Randle “unlawfully, willfully, and fe-loniously, knowingly and intentionally” engaged in sexual intercourse with the victim “by inserting his penis into her vagina ... without her consent,” it was to find Randle guilty of sexual battery. Randle argues the verdict was not supported by the evidence, as there was no evidence Carol had sex against her will, noting there was no “sign of a struggle” and no evidence she resisted. He notes the absence of any evidence of any injury to her body. Randle claims the two had a prior sexual relationship and that she consented to sex.

¶8. When challenging the sufficiency of the evidence on appeal, “the issue ... is whether the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.’ ” Washington v. State, 184 So.3d 977, 981 (¶ 14) (Miss. Ct. App. 2015) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005)). “Where the evidence fails to meet this test[,] it is insufficient to support a conviction.” Id. “A challenge to the weight of the evidence[, however,] will be successful only when the verdict ‘is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Id. at 982 (¶ 21) (quoting Bush, 895 So.2d at 844 (¶ 18)). “The evidence must be viewed in the light most favorable to the verdict.” Id. (quoting Jenkins v. State, 131 So.3d 544, 551 (¶ 23) (Miss. 2013)).

¶ 9. Carol testified that she did not like Randle. Her father corroborated this testimony, stating that Carol told him Randle was bothering her and that he told Randle to stay away from his home. Ran-dle also told Deputy Williams that Carol did not like him. Carol acknowledged that while she initially struggled against Ran-dle, she did not put up much of a fight, because she was in disbelief as to what was occurring; so it is not surprising there was no mess in the home or physical injuries .to report.

¶ 10. The forensic DNA analyst who personally conducted the laboratory testing on both the sexual-assault kit and the buccal swab collected from Randle testified that sperm was detected on the vaginal swab taken from Carol, and that “sperm fraction did match that of the suspect that was submitted, Theotis Randle.” Randle initially told Deputy Williams he did not touch Carol and admitted that “me and [Carol] don’t get along.” But at trial, after the DNA evidence and laboratory results had been admitted into evidence, Randle testified that the sex was consensual and that the two had carried on a prior clandestine relationship. Randle claimed that he initially lied to Deputy Williams because he was scared. However, “[Conflicting testimony does not evince overwhelming evidence; where the verdict turns on the credibility of conflicting testimony and the credibility of the witnesses, it is the jury’s duty to resolve the conflict.” Ambrose v. State, 133 So.3d 786, 793 (¶ 23) (Miss. 2013) (quoting Brown v. State, 995 So.2d 698, 702 (¶ 13) (Miss. 2008)). As the State points out, Randle only changed his story after the DNA results were reported.

¶ 11. Accordingly, we find the sufficiency and weight of the evidence support Ran-dle’s conviction for sexual battery.

II. Whether the trial court erred in allowing Deputy Williams to remain in the courtroom, violating Mississippi Rule of Evidence 615.

¶ 12. After direct examination of Deputy Williams, the jury was sent out at defense counsel’s request so the defense could set up some equipment that it intended to use during cross-examination. When the State realized defense counsel was intending to introduce the audio recording of the victim’s statement as a prior inconsistent statement, it objected that the proper foundation had not been laid. While counsel argued over the statement’s admissibility, Deputy Williams remained on the witness stand, until defense counsel asked that he be removed.

BY [DEFENSE COUNSEL]: Your Honor, I would say that I don’t think [Deputy] Williams is supposed to be here while this is going on.
BY THE COURT: I don’t know of any reasons why a witness couldn’t hear the arguments of the attorneys.
BY [DEFENSE COUNSEL]: Because he could hear the testimony of a prior witness of what—what was stated by my colleague.
BY THE COURT: Are you saying it’s a violation of the rule of sequestration of witnesses? Is that what—
BY [DEFENSE COUNSEL]: Yes, Your Honor.

While he did not think the witness’s presence violated the rule, the trial judge did excuse Deputy Williams out of “a super, abundance of caution.”

¶ 13. Randle now argues that leaving Deputy Williams on the stand while the-attorneys discussed the admissibility of the victim’s statement was a violation of Mis-, sissippi Rule of Evidence 615, which provides: “At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony.” We find no merit to this claim. The rule’s purpose is to “exercise a restraint on witnesses ‘tailoring’ their testimony to that of earlier witnesses and aid in detecting testimony that is less than candid.’ ” Avery v. State, 119 So.3d 317, 319 (¶ 7) (Miss. 2013) (quoting Douglas v. State, 525 So.2d 1312, 1316 (Miss. 1988)). “Simply put, Rule 615 guards against ‘falsification, inaccuracy, and collusion.’” Id. (quoting M.R.E. 615 cmt.). Deputy Williams was not present during the testimony of another witness.

¶ 14. Randle claims Deputy Williams was allowed to hear what Carol had “testified to,” but the qnly specific comment made by the prosecution addressed whether she had used the word “fight” in her statement, and her comment that she tried to “fight him off.” The supreme court has held that, absent a showing of prejudice, reversal on appeal for violation of the rule is not warranted. Douglas, 525 So.2d at 1318. Randle has failed to show how he was prejudiced by Deputy Williams’s presence on the stand during the attorneys’ discussion. Furthermore, defense counsel was granted his remedy — the trial judge excused Deputy Williams for the remainder of counsel’s arguments. We find no merit to Randle’s argument,

III. Whether the trial court erred in limiting a witness’s testimony and stating that the State is entitled to a fair trial.

¶15. After the State rested,, defense counsel put the State on notice that a defense witness, Roy Hamilton, would testify that Randle and Carol had a prior sexual relationship. The' State objected to the proffered' téstimony, as Hamilton was only listed as á potential character witness in discovery,- and the defense acknowledged it'had hot disclosed to the State the substance of Hamilton’s testimony. Determining that the proffer of Hamilton as a fact witness constituted a discovery violation, the trial court ruled that Hamilton could only testify as - a character witness; he was excluded from testifying about an alleged relationship between the defendant and the victim.

¶ 16. Randle claims the trial court’s ruling was “improper.” However, this claim is moot, since Hamilton never appeared in court to testify. Regardless, we, find no error in • the court’s ruling. “[T]he rules of discovery are to prevent trial by ambush.” Kindred v. Columbus Country Club Inc., 918 So.2d 1281, 1285 (¶ 9) (Miss. 2005) (citing Busick v. St. John, 856 So.2d 304, 320 (¶ 65) (Miss. 2003)). “Procedural rules are ‘designed to assure to the maximum extent practicable that cases are decided on their merits, not the fact that one 'party calls a surprise witness and catches the other with his pants down.’ ” Id. (quoting Broadhead v. Bonita Lakes Mall Ltd. P’ship, 702 So.2d 92, 102 (¶ 36) (Miss. 1997)).

¶ 17. Randle further argues that in ruling to limit Hamilton’s testimony, the trial court prejudiced Randle’s defense by commenting:

The defendant has a right to a fair trial, but the State also has a right to a fair trial, and in this instance the [c]ourt specifically finds that lesser sanctions or lesser courses of action, other than limiting the witness’s testimony, would deprive the State of its right to a fair trial[.] ... [T]he time necessary to properly investigate this surprise witness’s testimony is not reasonably available to the State, and therefore there is extreme prejudice and unfair surprise in this case.

(Emphasis added). Randle argues this was an inaccurate statement of law. While the State agrees that it has no constitutional right to a fair trial, it notes that this comment by the trial judge was merely that — a comment. We agree. The court’s ruling was based on a violation of the court’s rules of discovery and Mississippi Rule of Evidence 412(c)(1)(A)-(C), which provides that a defendant who intends to offer evidence of a victim’s past sexual behavior must “make a motion accompanied by an offer of proof describing the evidence ... [,] file the written motion and offer of proof at least 15 days before trial, unless the court sets a later time ... [, and] serve all parties and the victim.” Furthermore, the jury was not present during the court’s ruling; so we fail to see how this comment prejudiced Randle’s defense. Therefore, we find this claim is without merit.

IV. Whether trial counsel’s performance constituted ineffective assistance of counsel.

¶ 18. Randle asserts several claims of ineffective assistance of counsel on direct appeal: (1) trial counsel’s failure to adequately cross-examine witnesses; (2) trial counsel’s discovery violations related to Hamilton’s testimony and the failure to file a pretrial motion under Rule 412; (3) trial counsel’s failure to move for a mistrial when Deputy Williams testified that the sheriffs office had accidentally deleted the crime-scene photos; and (4) trial counsel’s failure to request a jury instruction giving a presumption that any information in the photos would be presumed to be in Ran-dle’s favor.

¶ 19. “Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings,” as the appellate court’s review “is limited to the trial court record[,] ... and there may be instances in which insufficient evidence exists within the record to address the claim adequately.” Archer v. State, 986 So.2d 951, 955 (¶ 15) (Miss. 2008) (citing Wilcher v. State, 863 So,2d 776, 825 (¶ 171) (Miss. 2003)). “[T]his Court may only consider the merits if ‘(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.’” Barber v. State, 143 So.3d 586, 595 (¶ 29) (Miss. Ct. App. 2013) (quoting Wilcher, 863 So.2d at 825 (¶ 171)). The proper procedure in such a case “is to deny relief, preserving the defendant’s right to argue the issue through a petition for post-conviction relief.” Archer, 986 So.2d at 955 (¶ 15) (citing Read v. State, 430 So.2d 832, 837 (Miss. 1983)).

¶ 20. The State expressly declines to stipulate that the record is adequate to consider Randle’s claim, but .it argues, in the alternative, that “Randle’s claim lacks merit[.]” Because Randle has failed to show “ineffectiveness of constitutional dimensions,” and the State has not stipulated the record is adequate to address Randle’s claims, we dismiss his claim of ineffective assistance of counsel without prejudice to Randle’s ability to raise it in postconviction proceedings.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED ON POSTRELEASE SUPERVISION, AND TO REGISTER AS A SEX OFFENDER, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . We are using a pseudonym in place of the victim's real name to protect her identity.

      . Although Randle tides this issue in his brief as the verdict being against the overwhelming weight of the evidence, which would warrant a new trial, his substantive legal argument only addresses the sufficiency of the evidence, which is a different standard of review. Therefore, for the sake of thoroughness, we will address both the sufficiency and weight of the evidence.

      . The Mississippi Rules of Evidence were restyled in 2016 "to make them more easily understood and to make style and terminology consistent throughout the rules.” M.R.E. 615 advisory committee’s note. While we are quoting the most recent version of Rule 615, the substance of the rule is the same.


text:
    Terrell Patrick Corvette HOPPER a/k/a Terrell P. Hopper a/k/a Patrick, Appellant v. STATE of Mississippi, Appellee
    NO. 2014-KA-01273-COA CONSOLIDATED WITH 2005-KA-00526-COA
    2006-KA-01607-COA
    Court of Appeals of Mississippi.
    03/28/2017

      COAHOMA COUNTY CIRCUIT COURT, LARRY O. LEWIS, J.
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK

      ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. The Mississippi Supreme Court has granted out-of-time appeals of two convictions rendered more than ten years ago. We address Hopper’s claims on direct appeal in accordance with the supreme court’s order. Hopper’s attorney originally submitted a single issue — that he is entitled to new. trials because he received constitutionally ineffective assistance of counsel. Hopper has since filed a pro se supplemental brief asserting other issues.

FACTS

¶.2. Hopper has provided a thorough procedural history and set of facts on appeal:

Procedural History of Trial 1
On June 3, 2003, a Coahoma County [g]rand [j]ury returned a multi-count indictment against Terrell Patrick Corvette Hopper ... and Patrick Parker, charging Hopper with aggravated assault and aggravated assault of a law enforcement officer and Patrick Parker with accessory after the fact.
Hopper was arraigned on June 13, 2003, represented by Charles McPherson. The case was assigned to the Honorable Circuit Court Judge- Larry O. Lewis. A little over one month after his arraignment, Hopper and Parker were tried together. Hopper was convicted of both counts, and- Parker was acquitted. Hopper was sentenced to twenty years for aggravated assault and thirty years for aggravated assault against a law enforcement officer, to run consecutively. Hopper filed his motion for a new trial on August 25, 2003. That motion was denied on November 12, 2003.
Procedural History of Trial 2
On June 3, 2003, a Coahoma County [g]rand |j]ury returned a multi-count indictment against [Hopper,] ... charging [him] with armed robbery, kidnaping, and nine counts of aggravated assault against a law enforcement officer.
Hopper was arraigned on June 13,- 2003, [and again] represented by [McPherson], The case was assigned to [Judge] Lewis. On November IQ, 2003, Hopper was brought to trial and ultimately acquitted of three counts of aggravated assault, but convicted of six counts of aggravated assault. Hopper was sentenced to serve a total of thirty years concurrent on all counts of aggravated assault and thirty-seven years on armed robbery, to be served consecutive to Hopper’s sentences in Trial 1, for a total of eighty-seven years putting the two trials’ sentences together.
Hopper filed his motion for a new trial on December 6, 2003. That motion was denied on December 10, 2003.
Additional Procedural History
This Court originally docketed the appeals of Trials 1 and 2 as 2006-KA[-0]1607 and 2005-KA-[00]526, respectively. Because Hopper’s attorney never proceeded with his appeal, both appeals were dismissed. The cases languished until, through a series of post-convietion[-]relief and habeas petitions, the Mississippi Supreme Court allowed Hopper to proceed in an out[-]of[-]time appeal, and consolidated both trials into this cause number. The Supreme Court appointed the Indigent Appeals Division of the Office of State Public Defender. This case was subsequently assigned to [this Court].
Facts of Trial 1
On August 16th, 2002, in Friars Point, Mississippi, Doyle Hunter was in front of a local store when he was shot by [Hopper]. Hunter was hit in the face and in the shoulder blade. Hunter was transported to a hospital in Memphis and lived. Earlier that night Hunter and Hopper had a disagreement. Hunter was intoxicated. Hunter testified that he “didn’t think” that the argument was over drugs and denied being in a gang. Hopper, however, testified that Hunter had told him that Chief Anthony Smith [of the Friars Point Police Department] wanted to see Hopper.
The afternoon of the next day, Chief [ ] Smith ... having developed Hopper as a suspect in the shooting of Hunter, spotted who he believed to be Hopper. Chief Smith parked his vehicle, and, when he reached over to put his keys in his passenger seat, Chief Smith was shot through the lower neck, near his shoulder. When Chief Smith turned, he saw Hopper with a gun pointed towards him. Chief Smith yelled for a passerby, and directed him to use the radio to call the sheriffs department ... By the time Chief Smith regained his faculties, Hopper had already fled the scene.
That evening, authorities communicated with [ ] Parker, who told them that Hopper had stopped by Parker’s residence. Police attempted to arrest Hopper at Parker’s house, but were unable to, the circumstances of which resulted in the charges in Hopper’s second trial, discussed below.
Hopper was eventually apprehended at his grandmother’s house. He was found hiding in a trunk. Police recovered a 9mm handgun. Hopper stipulated that the weapon was assigned to and used by Officer John Martin Harris with the Friars Point Police Department.
He was interviewed while at the hospital. Hopper had been shot prior to his arrest. Investigators testified that Hopper told them that Hopper had shot both Chief Smith and [ ] Hunter.
Hopper testified that on the night of [ ] Hunter’s shooting, [ ] Hunter was speaking to him about some drugs missing from Chief Smith ... Hopper then realized that Joseph Brown had a gun in his face. Hopper and Edwin Brown, who was also there, wrestled over the gun and it accidently went off, hitting Hunter. In his testimony, Hopper flatly denied shooting Hunter.
Hopper testified that he, Hunter, Marcus Williams, and Edwin Brown were selling drugs. Hopper wished to stop selling drugs, because “it was getting too deep.” Hopper testified that 15 kilos of cocaine had gone missing, and that he was being accused of stealing it. Hopper testified that the Friars Point Police Department was in the business of selling drugs, and Chief Smith and he had “made transactions” in the past.
Hopper admitted to shooting Chief Smith, but claimed to do so because if Chief Smith had taken him into custody, Hopper believed he would not make it to the jail and would be killed. Hopper testified that later that evening, he went to Parker’s house when Parker was not there ....
Facts of Trial 2
In the early morning hours of August 18, 2002, Coahoma Sheriff Andrew Thompson was called to Parker’s house where police believed they had located Hopper. When he arrived, it became apparent that two officers had been shot.
Officer Harris had gone to the house to speak with Parker. Parker was initially uncooperative, but agreed to go with officers. Parker asked if he could secure the residence, and Officer Harris and Deputy Victor Randall followed him, with guns drawn, because it was dark inside. Otha Hunter and Oliver Mitchell were also on the porch at the time. Officer Harris told Deputy Randall to cover the right side of the house, and Harris was to take the left. Officer Harris testified that he took three to four steps into the house and shots rang out. Officer Harris saw that he was hit in the right elbow. After going to the hospital, he learned that he had been hit three times. Officer Harris testified he never fired a shot. Deputy Randall[, who] was behind Officer Harris, tried to grab him, but was shot himself. Deputy Randall backed out of the house, and Hopper shut the door and placed a piece of furniture in front of it. Hopper took Harris’s gun, his extra magazine, and his handheld radio. Officer Harris testified that at one point Hopper tried to drag Officer Harris to the door to be released, but he could not because Hopper had been injured.
Hopper had taken a police radio and was screaming over the radio. While Officer Harris was down, several shots were fired from the house, striking several vehicles. Eventually, law enforcement tried to enter the house using a stack, where several officers line up in a row behind a shield. When officers used the battering ram on the door, nothing happened. After using the ram again, it became apparent that something was against the door. At that point, shots rang out, hitting the shield.
[Several officers hid behind a shield], with Deputy Neil Mitchell ... and Officer Kenny Scott in the back. Both [Deputy] Mitchell and [Officer] Scott were shot. Deputy Mitchell testified that while he was behind the shield, shots rang out, and he was'hit in the right leg. Eventually, Officer Harris had 911 call the law enforcement outside to let them know that Hopper had left the house .... Police recovered a [.]40 caliber pistol from the house. The parties stipulated that the firearm was Hopper’s. As noted above, Hopper was eventually arrested at his grandmother’s house. Because he was shot, he was taken to the hospital, where he received treatment. In a statement to police, he admitted to shooting Officer Harris’s 9mm handgun. At Hopper’s grandmother’s [house] police found a 9mm pistol. The parties stipulated that the pistol was that of Officer Harris.
Hopper testified that he was in Parker’s house “trying to lay low,” because he felt that his life was in danger. Hopper testified [that] when authorities were entering the house, he heard them yell[,] “Sheriffs Department,” but before Hopper could raise his hands, Deputy Randall began to open fire, shooting Hopper in the arm, and Officer Harris in the back. Hopper testified that when the next group of officers attempted to enter the house, they, too, fired first. Hopper testified that he explained to Harris his fears of the Friars Point Police Chief, because of his involvement in the drug trade. Eventually, Hopper [handed] the phone to Officer Harris ... and left the house.

(Internal citations omitted).

DISCUSSION'

¶3. Hopper’s attorney makes various assertions on appeal regarding Hopper’s ineffective-assistance-of-counsel claim: (1) in trial one, his attorney erred in .failing to' request an accident instruction; (2) in trial one, his attorney failed to move to sever his trial with codefendant Patrick Parker; (3) his attorney failed to object to inadmissible evidence;. (4) his attorney failed to move for a change of venue; and (5) his attorney failed to provide adequate representation. Hopper filed a pro se supplemental brief, including the following issues: (6) forensic expert Dave Zeliffis testimony violated the Confrontation Clause and was prejudicial; (7) the State withheld exculpatory evidence; (8) his indictments were defective; and (9) he was denied a speedy trial. We address each contention below.

¶ 4. To- prove his counsel was -ineffective, Hopper must show (1) his counsel’s performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. 2052, A strong but rebut-table presumption exists that counsel’s performance was effective. Gilley v. State, 748 So.2d 123, 129 (¶ 20) (Miss. 1999). “To overcome this presumption, ‘the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,’ ” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

1. Jury Instruction

¶ 5. Hopper first argues that his counsel erred in failing to request an accident instruction, “While a defendant is entitled to jury instructions that support his theory of the case, even where that theory is based solely on the defendant’s own testimony, an evidentiary basis must still exist for the jury instruction.” Laurent v. State, 94 So.3d 1232, 1235 (¶ 13) (Miss. Ct. App. 2012). Here, Hopper stated that, in an altercation with Hunter, the gun “accidentally” went off several times. He also stated that he shot Chief Smith because of a “conspiracy” between the police force and other drug dealers in the area. However, “[s]imply saying that you shot in self-defense or that the shooting was an accident [without other corroborating evidence] does not provide a defendant with an automatic right to instructions thereon.” Robinson v. State, 726 So.2d 189, 194 (¶ 19) (Miss. Ct. App. 1998). Without any evidentiary basis, Hopper’s counsel would have no reason to request such an instruction. Hopper’s first argument fails.

2. Severance of Trials

¶ 6. Hopper and Parker had different representation in a joint trial. Hopper argues his counsel was ineffective for "failing to request severance of their trials.

The granting or refusing of severance of defendants in cases not involving the death penalty shall be in the discretion of the trial judge. The court may, on motion of the [S]tate or defendant, grant a severance of offenses whenever:
1. If before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
2.If during trial, upon the consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense,

URCCC 9.03.

¶ 7. “Where all the evidence at trial went to the guilt of both [defendants] and not to one more than the other, it is not error to try the defendants jointly.” Buggs v. State, 754 So.2d 569, 573 (¶ 16) (Miss. 2000). The record shows that Parker was indicted as accessory after, the fact. Parker’s theory of defense was that he was under duress, with Hopper pointing a gun at his back. Hopper stated that he never had a gun to Parker’s back and that he only saw Parker for a few seconds right when he fled the scene. Because the decision whether to move for severance was within the purview of trial strategy, Hopper’s claim fails. See Cox v. State, 793 So.2d 591, 600 (¶ 41) (Miss. 2001).

3.Evidence

¶8. Hopper next argues that his counsel was ineffective in failing to object to evidence introduced in each trial regarding the incidents of the other trial. Specifically he refers to (1) defense counsel’s stipulation in trial one that the gun recovered at Hopper’s arrest belonged to Officer Harris; and (2) defense counsel’s failure to object in trial two to references to the allegations in trial one. Hopper claims the evidence was more prejudicial than probative and should have been excluded under Mississippi Rule of Evidence 403.

¶ 9. “With 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[-]assistanee[-] of[-]counsel claim.” Shinn v. State, 174 So.3d 961, 965 (¶ 10) (Miss. Ct. App. 2015) (citation omitted). Hopper essentially argues that the stipulation of Officer Harris’s gun in trial one was prejudicial because Hopper was charged with Officer Harris’s assault in trial two. Although Hopper had two separate trials, the charged crimes stemmed from the same sequence of events. It is plausible that defense counsel stipulated to the gun in trial one because the officer who testified was simply testifying about the gun he recovered after Hopper’s arrest.

¶ 10. “We presume that decisions not to object to testimony were strategic if they fairly can be characterized as such.” Id. at 967 (¶ 15). The “references” in trial two to the events of trial one occurred in the State’s opening statement and Officer Thompson’s testimony. Both of these references were almobt unavoidable given the nexus between the crimes. We find defense counsel’s decisions fell within the ambit of-trial strategy. Thus, Hopper’s argument fails.

4.Change of Venue

¶ 11. Hopper’s next claim focuses on his attorney’s failure, to move for a change of venue, despite the local publicity surrounding both cases. Specifically, he refers to the voir dire in trial two, when the judge and defense counsel noted that the entire venire knew about the facts of the case.

¶ 12. Our supreme court has held that defense counsel is under no duty to attempt to transfer venue and, therefore, the decision not to would fall within the realm of strategy. Faraga v. State, 514 So.2d 295, 307 (Miss. 1987) (citing Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). In Faraga, the entire venire had heard of the case due to pretrial publicity. Id. Faraga argued that his counsel was ineffective for failing to move -for a change of venue. Id. The court ultimately held that trial strategy and the overwhelming evidence kept Faraga from meeting either prong of the Strickland analysis. Id. For the same reasons, Hopper’s claim fails.

5. Defense Counsel’s Representation

¶ 13. Hopper contends that his attorney failed to provide any “meaningful” representation. “The right to effective counsel does not entitle the defendant to have an attorney who makes no mistakes at trial. The defendant just has a right to have competent counsel.” Bell v. State, 879 So.2d 423, 439 (¶ 50) (Miss. 2004). To say there was overwhelming evidence to convict Hopper at both trials is an understatement. At the first trial, over twenty witnesses testified on the State’s behalf, including both victims. Fourteen witnesses, including the wounded officers, testified for the State at the second trial. It is highly improbable that, but for any of counsel’s alleged professional errors, the outcome of Hopper’s trials would have been any different. Even so, it is fully apparent from the record that Hopper received effective assistance of counsel.

6. Dave ZelifPs Expert Testimony

¶ 14. In Hopper’s supplemental brief, he argues that forensic expert Dave Zeliff s testimony violated the Confrontation Clause and was prejudicial. Zeliff, a chief technician of the Mississippi Crime Laboratory, testified about the projectiles that were removed from police vehicles at the crime scene. Zeliff was present at the crime scene and recovered multiple projectiles, but not all. At trial, both parties stipulated to the following:

A bullet projectile was recovered by Arthur Chancellor with the Mississippi Crime Laboratory from the driver’s side door of the Coahoma County Sheriffs Department vehicle number 4. Said bullet, which is exhibit 87, was analyzed at the Mississippi Crime Laboratory, was found to have been fired by the pistol, which is exhibit 2, previously testified as being Officer Harrises] service weapon.

¶ 15. Hopper claims that his inability to cross-examine the technician who actually recovered this bullet violated the Confrontation Clause. Hopper made no objection at trial and has therefore waived the issue on appeal. See Jenkins v. State, 102 So.3d 273, 283 (¶ 30) (Miss. Ct. App. 2011). Procedural bar notwithstanding, our supreme court held in McGowen v. State, 859 So.2d 320, 339 (¶ 68) (Miss. 2003), that, “when the testifying witness is a court-accepted expert in the relevant field who participated in the analysis in some capacity, ... then the testifying witness’s testimony does not violate a defendant’s Sixth Amendment rights.” Zeliff was in charge of the crime scene and processed the crime scene. He clearly participated in the analysis of the evidence recovered. Thus, we cannot say Hopper’s Sixth Amendment rights were violated. Further, Hopper has failed to show how he was prejudiced by the stipulation or Zeliff s testimony.

7.Exculpatory Evidence

¶ 16. Hopper next claims that the State withheld exculpatory evidence, notably that the gun Hopper used was registered to Joseph Brown. His contention is simply not true. In both trials, Agent Joey Hall testified that, after running a check on the gun, he discovered Brown was the sole, original owner. He further explained that Brown bought the gun for Hopper and gave it to Hopper shortly thereafter. Hopper also testified to the same effect. Consequently, his argument lacks any merit.

8. Defective Indictment

¶ 17. Hopper also claims that his aggravated-assault indictments were defective because they did not specify “serious” bodily injury. Both indictments stated that Hopper caused bodily injury with a deadly weapon (specifically, a pistol). When Hopper was indicted in 2003, Mississippi Code Annotated section 97 — 3—7(2)(b) (Rev. 2002) read, in pertinent part:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.

¶ 18. Hopper’s claim is nearly identical to that of the defendant in Russell v. State, 924 So.2d 604 (Miss. Ct. App. 2006). In that case, the court stated that “[i]t is clear from the plain language of section 97-3-7(2)(b) that a defendant can be found guilty of aggravated assault if, with the aid of a deadly weapon, he attempts to cause or purposely or knowingly causes any degree of ‘bodily injury.’ ” Russell, 924 So.2d at 607 (¶ 6). Thus, the court held that “an indictment charging aggravated assault pursuant to section 97-3-7(2)(b) must only allege that the defendant purposefully or knowingly caused or attempted to cause bodily injury to another with a deadly weapon.” Russell, 924 So.2d at 607 (¶ 6). Hopper’s claim fails.

9. Speedy Trial

¶ 19. For the first time on appeal, Hopper argues that he was denied the right to a speedy trial. Thé balancing test set forth in Barker v. Wingo, 407 U.S. 614, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), applies when a defendant’s constitutional right to a speedy trial is questioned. Ellis v. State, 141 So.3d 415, 418 (¶ 8) (Miss. Ct. App. 2013). The test consists of four factors: “(1) the length of the delay, (2) the reason for the delay, (3) whether the defendant has asserted his right to a speedy trial, and (4) whether the defendant was prejudiced by the delay.” Id. (quoting Noe v. State, 616 So.2d 298, 300 (Miss. 1993) (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182)). “The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Id. (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182. A delay of eight months or longer is presumptively prejudicial. Noe, 616 So.2d at 300. Hopper committed the crimes in August 2002, was indicted in June 2003, and had his trials in July 2003 and November 2003. So there was roughly an eleven-month delay for the first trial and a fifteen-month delay for the second.

¶ 20. When the speedy-trial issue is raised for the first time on appeal, we must determine whether plain-error review is applicable, i.e., whether an “error of the trial court has impacted upon a fundamental right.” Sanders v. State, 678 So.2d 663, 670 (Miss. 1996). See also Morgan v. State, 793 So.2d 615, 617 (¶ 19) (Miss. 2001) (Plain-error review is applicable when the error is “so fundamental that it generates a miscarriage of justice[.]”). In Dora v. State, 986 So.2d 917, 924-26 (¶¶ 15-20) (Miss. 2008), the Mississippi Supreme Court noted that Dora tried to “leapfrog” over the required plain-error analysis by making assertions under the Barker factors. The court ultimately found that there was no plain error and that a defendant’s failure to raise the issue of speedy trial with the trial court had waived the issue on direct appeal. Id.

¶ 21. Hopper has in .no way shown how his delay resulted in a miscarriage of justice. Similarly to the defendant in Dora, Hopper 'failed to raise a speedy-trial issue at trial, making his claim on direct appeal procedurally barred. See also Ellis, 141 So.3d at 418 (¶ 8). However, we dismiss Hopper’s claim without prejudice so that he may raise it as an ineffective-assistance-of-counsel claim in a post-conviction relief motion, if he so chooses.

CONCLUSION

¶ 22. We find Hopper received effective assistance of counsel. We also find Hopper’s claims in his supplemental brief áre without merit. Therefore, we affirm.

¶ 23. THE JUDGMENTS OP THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION IN CAUSE NO, 2003-0005 OF COUNT I, AGGRAVATED ASSAULT, AND COUNT II, AGGRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICER, AND SENTENCE OF TWENTY YEARS ON COUNT I AND THIRTY YEARS ON COUNT II, TO RUN CONSECUTIVELY; AND CONVICTION IN CAUSE NO. 2003-0006 OF COUNT IV, ARMED ROBBERY, AND SENTENCE OF THIRTY-SEVEN YEARS, TO RUN CONSECUTIVELY TO THE SENTENCES IN CAUSE NO. 2003-0005; AND COUNTS II, V, VI, VIII, AND IX, AGGRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICER, AND SENTENCE ON EACH COUNT OF THIRTY YEARS, TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT IV, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, WILSON AND WESTBROOKS, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.

      . The State argues that Hopper's claims would be best brought on a post-conviction-relief motion rather than a direct appeal. A reviewing court may address an ineffective-assistance-of-counsel claim on direct appeal if the issues presented are ‘.‘based on facts fully apparent from the record,” Archer v. State, 986 So.2d 951, 955 (¶ 16) (Miss. 2008) (citing M.R.A.P. 22(b)). The record before us is sufficient to decide all of Hopper’s claims.

      . Docket number 2014-KA-01273-COA is the direct appeal of Coahoma County Circuit Court criminal cause numbers 2003-0006 and 2003-0005. The dismissed appeals, docket numbers 2005-KA-00526-COA and 2006-KA-01607-COA, have been consolidated with this appeal for record purposes only.


author: ISHEE, J.,

text:
    Charles O'NEAL, Appellant v. Tracy Sykes BLALOCK and Robert Allen Sykes, Appellees
    NO. 2015-CA-01445-COA
    Court of Appeals of Mississippi.
    05/02/2017

      ATTORNEY FOR APPELLANT: CLARENCE MCDONALD LELAND
    ATTORNEYS FOR APPELLEES: RENEE H. BERRY, JOHN T. ARMSTRONG JR.
    BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. In December 2013, Tracy Sykes Blalock and Robert Allen Sykes brought suit against Charles O’Neal in the Copiah County Chancery Court to quiet and confirm title in land on which O’Neal was encroaching. O’Neal responded by claiming ownership of the disputed land through adverse possession. Following trial, the chancery court entered a final judgment holding that O’Neal had failed to prove his claim of adverse possession by clear and convincing evidence. O’Neal timely appealed. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On September 19,1990, O’Neal purchased approximately 255.8 acres of land in Copiah County. Prior to the completion of O’Neal’s purchase, he had the land surveyed by Harold King, a registered land surveyor. O’Neal then had a deed prepared based upon King’s survey, which he properly recorded, and to which the King survey was attached. Though this case was initiated on December 23, 2013 by Blalock and Sykes as a complaint to quiet and confirm title, the parties elected to proceed with O’Neal’s claim for adverse possession, as it would likely be dispositive to the outcome of the ease. , .

¶ 3. At trial, O’Neal testified that while King performed the survey, he aided by bulldozing a road along the southern boundary of the property. O’Neal further testified that, out of respect for the adjacent landowners, the road was constructed to favor the north side of the southern boundary line surveyed by King. In addition to the dozing of the road, O’Neal stated that at the time of the survey, King also blazed a red, painted line, which was maintained for “years and years.” He testified that he personally observed King place each survey pin in every corner of his property, including point 7, which abuts the' western right-of-way of Highway '27, and is a primary area of dispute among the parties. O’Neal asserted that he relied entirely on King’s placement of the pins for the boundaries of his property, and believed those pins to be within the calls 'of his deed.

¶4. .Following the dozing of the road, O’Neal stated that he conducted a variety of acts upon his land, including planting food plots, building a deer stand, hunting, fishing, ATV operation, and inviting others to participate in the same. O’Neal had several different witnesses offer testimony to this ..effect on his behalf. O’Neal also admitted that while the southern boundary of his property was to follow a due east-west line, unstable terrain and a lake caused his road to deviate from its initially straight course; O’Neal reiterated, however, that he favored the “inside” of his boundary line at all times. No fence was ever built along the southern border surveyed by King.

¶5. In 2006, O’Neal founded Copiah Creek Camping and Recreation LLC. The business consisted of charging admission for those seeking to ride ATVs along the road created by O’Neal, including the disputed area, as well as other portions of his acreage. The “tremendous” volume of ATV traffic resulted in the forming of a “mud pit” where -the road ■ was once flat. The “mud pit” is a long ditch located below ground level, and the primary area of dispute among the parties, as it sits north of O’Neal’s road, but south of the boundary line claimed by Blalock. The “mud pit” also rests east of the “borrow pit,” which is the area where O’Neal’s road begins its deviation to the south when following the road in a west-to-east path.

¶ 6. Blalock inherited the property directly south of O’Neal’s on October 23, 2003, Dale Blalock, Tracy’s husband, testified that in 2011, he and O’Neal traversed the property border, west to east, and that O’Neal admitted he-was encroaching upon the Blalocks’ land at several points. And in May 2013, prior to a timber sale, the. Blalocks had Hunter Newman, a registered surveyor, perform a survey of their property. Newman’s survey showed the Blalocks claimed a total of 129.97 acres. Newman reviewed the King survey, and determined that of the seven pins allegedly placed by King in 1990, only pins 1, 2, and 4 coincided with Newman’s measurements.

¶ 7. As. such, the placement of pins 6 and 7 — shown to Newman by O’Neal himself— reflected a southerly encroachment of approximately 122.38 feet onto the Blalocks’ land. Newman further testified that for pins 6 and 7 to be accurate, both his and hang’s surveys would have to be entirely inaccurate at a multitude of other locations, which Newman asserted was highly unlikely. Newman further testified that King made no mention of pins 6 and 7 on his survey, which would be against industry custom if King' did in fact set those pins in 1990. Thus, when reviewing the King and Newman surveys together, there were at least two common aspects supporting O’Neal’s testimony: (1) that, in general, O’Neal bulldozed a road north of King’s southerly survey line; and (2) that his road was not entirely straight.

¶ 8. In addition to testimony regarding his and King’s surveys, Newman stated that he relied upon aerial photographs from winter 2006 and summer 2012 to help determine the location of O’Neal’s road in the area of dispute. The-winter 2006 photograph was of a higher resolution than the summer 2012 photograph, and did not show any such road in the area of dispute, as alleged by O’Neal. In contrast, however, the lower-resolution summer 2012 photograph did show the “mud pit” and road. O’Neal testified that for the twenty-three years he had possessed his land, he had.no knowledge of the encroachment before the instant case was filed in December 2Q13.

¶ 9. Based upon Newman’s testimony, the chancellor determined that neither the legal descriptions of the two properties nor the common boundary line was in dispute. Rather, the sole area of relevance pertaining to O’Neal’s claim for adverse possession was the 122.38-foot portion of land encroaching on the Blalocks’ side of the boundary line — referred to as the “mud pit” and “borrow pit.” Finding that O’Neal had failed to prove each essential element of adverse possession by clear and convincing evidence for the portion of disputed land, the chancellor dismissed O’Neal’s claim. O’Neal timely perfected his appeal. Finding no error on the part of the chancellor, we-affirm.

STANDARD OF REVIEW

¶ 10. “This Court will not disturb the findings of a chancellor unless those findings were manifestly in error,: clearly erroneous, or ,.. the result of the application of an erroneous legal standard.” Knight v. Covington Cty., 27 So.3d 1163, 1167 (¶ 14) (Miss. Ct. App. 2009). “Where there is substantial evidence to support a chancellor’s findings, [an appellate c]ourt is without the authority to disturb a chancellor’s conclusions, although it might have found otherwise as an original matter.” Keener Props., LLC v. Wilson, 912 So.2d 954, 956 (¶ 3) (Miss. 2005). A chancery court’s interpretation and application of law, however, is reviewed under a de novo standard. Id.

DISCUSSION

¶ 11. O’Neal contends on appeal that the chancellor erred in his application of the facts to the law by finding that O’Neal had failed to satisfy his burden of proving adverse possession by clear and convincing evidence. Reviewing the record before this Court, we disagree.

¶ 12. Mississippi Code Annotated section 15-1-13(1) (Rev. 2012) sets forth the following:

(1) Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title[.]

¶ 13, Thus, for a claimant to establish title by adverse possession, each of the following six elements must be proven by clear and convincing evidence. “For possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Roberts v. Young’s Creek Inv. Inc., 118 So.3d 665, 669 (¶ 7) (Miss. Ct. App. 2013) (citing Blackburn v. Wong, 904 So.2d 134, 136 (¶ 15) (Miss. 2004)). The claimant bears the burden of proving adverse possession by clear and convincing evidence. Scott v. Anderson-Tully Co., 154 So.3d 910, 916 (¶ 14) (Miss. Ct. App. 2015). “Clear and convincing evidence is such a high standard of proof that even the overwhelming weight of the evidence does not rise to the same level.” Massey v. Lambert, 84 So.3d 846, 848 (¶ 7) (Miss. Ct. App. 2012) (citation omitted) (citing In re C.B., 574 So.2d 1369, 1375 (Miss. 1990)).

1. Under Claim of Ownership

¶ 14. When determining whether an adverse possessor has staked a proper claim of ownership, the relevant inquiry is “whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder on notice that the lands are held under an adverse claim of ownership.” Hill v. Johnson, 27 So.3d 426, 431 (¶ 19) (Miss. Ct. App. 2009) (citing Apperson v. White, 950 So.2d 1113, 1117 (¶ 7) (Miss. Ct. App. 2007)). “Adverse possession of ‘wild’ or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands.” Apperson, 950 So.2d at 1117 (¶ 8). As such, “the chancellor must look to the quality and not the quantity of the acts indicative of possession.” Id. “A party claiming land by adverse possession ... enclosing] the piece of property with a fence is a factor to be considered in determining if adverse possession occurred.” Buford v. Logue, 832 So.2d 594, 602 (¶ 23) (Miss. Ct. App. 2002).

¶ 15. At the outset, the chancellor specifically noted that the road allegedly built by O’Neal in 1990 did not encroach on the Blalock property until one crossed the “borrow pit” and approached the “mud pit,” heading in a west-to-east direction. As such, the chancellor held that any acts of ownership taking place west of the “borrow pit” would not sufficiently pláce an owner on notice of an encroachment, and therefore, were irrelevant. Thus, the only area where O’Neal’s “flag” may have been flown was the 122.38-foot southerly deviance consisting of the “borrow pit” and “mud pit.”

¶ 16. Here, the chancellor found that O’Neal had failed to clearly and convincingly satisfy this first element by highlighting a variety of problems with O’Neal’s evidence. To begin, the chancellor noted that pin 7 — allegedly placed by King in 1990 — was located in a set of bushes, no photographs of the pin were introduced into evidence, and there was no testimony that the area surrounding the pin was clearly visible. Moreover, the chancellor noted that, heading from the westernmost point of the boundary line in an easterly direction, the southerly encroachment did not begin until after approximately 1,000 to 1,200 feet — raising the issue of whether an owner could reasonably perceive a 122.38-foot southerly deviance when traversing such a distance. The chancellor noted further that even O’Neal knew his southern border was a due east-west line, but believed the “pins were within the calls of his deed.”

¶ 17. The chancellor next made light of the fact that several of the witnesses testified that O’Neal’s road could not be seen from Highway 27; no photographs of the road were entered into evidence. Therefore, the chancellor concluded that the southern property owner could not have seen the road from Highway 27, nor pin 7 located in the bushes. Furthermore, many of the acts or claims of ownership asserted by O’Neal pertained to his invitees rather than the public at large. In addition, there was no photographic evidence of the alleged painted line marking the boundary, nor any indication that O’Neal maintained the painted boundary. Adding to these considerations, the chancellor found that O’Neal had not had the disputed area of land assessed to him or paid taxes on it, in large part due to O’Neal’s belief that the encroaching area was within the calls of his deed. See Nosser v. Buford, 852 So.2d 57, 61 (¶ 17) (Miss. Ct. App. 2002) (holding payment of taxes is but one incident to possession, though not dispositive).

¶ 18. Most crucial to the chancellor’s findings on this element, however, were the 2006 and 2012 aerial photographs upon which Newman relied to locate O’Neal’s road. Testimony offered on behalf of O’Neal maintained that the road was both easily visible (though, not from Highway 27) and large enough to “drive a car down it.” It is undisputed that the summer 2012 aerial photograph clearly reveals the “mud pit” in the northeast corner of the Blalock property, the area of dispute. The aerial photograph taken during winter of 2006, however, illustrates no such road or “mud pit.” The chancellor found this conspicuous, as the 2006 photograph was of a higher-quality resolution and presented a clearer representation of the land due to less foliage. Though the chancellor did not find that the photographs equated to an entire absence of the road, he did find that the road was “not as obvious as represented, or something used to ‘fly a flag’ of ownership to one inspecting the property, and in particular the area of the ‘borrow pit’ [and] ‘mud pit.’ ”

¶ 19. Reviewing this evidence in light of the deferential standard accorded a chancellor’s findings, we cannot hold that the chancellor erred, as there was sufficient evidence to support the finding that O’Neal did not satisfy this element by clear and convincing evidence.

2. Actual or Hostile

¶20. “Possession is defined as effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses,” Roberts, 118 So.3d at 670 (¶ 10). “Possession is hostile and adverse when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed.” Id. (citing Wicker v. Harvey, 937 So.2d 983, 993-94 (¶ 34) (Miss. Ct. App. 2006)). “[T]he adverse possessor ... must present some proof that [his] occupation of the record owner’s property was hostile, and that the record owner— aware of the adverse possessor’s hostile occupation — took no action to prevent adverse possession.” Double J Farmlands, Inc. v. Paradise Baptist Church, 999 So.2d 826, 829 (¶ 15) (Miss. 2008). “The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession.” Roberts, 118 So.3d at 670 (¶ 10) (citing Apperson, 950 So.2d at 1118 (¶ 12)).

¶ 21. In this case, to classify O’Neal’s possession as “hostile” would require that he maintained control of a definite area “visible to the eye or perceptible to the senses.” See id. To reiterate — as the chancellor did — the focus of our inquiry pertains to the areas in controversy, the “borrow pit” and the “mud pit.” Thus, only acts taken with respect to this disputed land, and any control affected visible to one’s eye, are relevant. With these principles in mind, the chancellor found that pin 7 was not open and obvious, as it was located in the bushes, and no photographs were introduced to rebut such a conclusion. And while there was testimony regarding a deer stand allegedly built on the area in dispute, O’Neal’s witnesses stated that the stand was not visible from Highway 27, and Newman testified to seeing mere remnants of the deer stand when he conducted his May 2013 survey. Again, however, the chancellor’s findings under this element were based primarily upon the 2006 and 2012 aerial photographs, which showed that the “mud pit” had not come into being until after 2006. As the original complaint in this matter was filed in December 2013, within the prescribed ten-year statutory period to claim adverse possession, we find sufficient evidence in the-record to support the chancellor’s holding that O’Neal did not satisfy the element of hostility by clear and convincing evidence.

3. Open, Notorious, and Visible

¶ 22. “In addition to the requirements that possession be under a claim of ownership and hostile, possession must also be open, notorious, and visible.” Roberts, 118 So.3d at 671 (¶ 13). Therefore, the possessor “must unfurl his flag-on the land, and keep it flying, so that the actual owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.” Id. (quoting Wicker, 937 So.2d at 994 (¶ 35)). “A claim of adverse possession cannot begin unless the landowner has actual or constructive knowledge that there is an adverse claim against his property.” Dean v. Slade, 63 So.3d 1230, 1237 (¶ 28) (Miss. Ct. App. 2010).

¶23. The chancellor found that the testimony presented in this case did not prove by clear and convincing evidence that- O’Neal had unfurled his flag on the land, and kept if flying, such that Blalock would have actual or constructive knowledge of O’Neal’s presence. Testimony varied with regard to whether the road or deer stand was clearly visible from Highway 27, and if so, whether the stand was located in the actual area of controversy. Furthermore, there was no evidence that any hunting or fishing took place on the disputed land, and again, whether such activity was observable from Highway 27. In addition, the formal entry from Highway 27 onto O’Neal’s property was not located at pin 7, but rather at pin 6 (approximately 660 feet north of pin 7). Lastly, the chancellor found that “prior to Co-piah Creek Camping and Recreation ..., the controversial area was indistinguishable from the land on either side of the boundary, but for the road[.]” We agree with these findings, and hold that O’Neal did not prove this element by clear and convincing evidence.

4. Continuous and Uninterrupted for a Period of Ten Years

¶24. Mississippi Code Annotated section 15-1-13' requires continuous and uninterrupted possession of a disputed property for at least ten years. See Miss. Code Ann. § 15-1-13. “[Occasional use of someone else’s property without an enclosure does not pass the test of adverse possession. Ellison v. Meek, 820 So.2d 730, 736 (¶ 21) (Miss. Ct. App. 2002). “Sporadic use of another’s property does not constitute open and notorious possession,” Id.

¶ 25. O’Neal contends that he has continuously and uninterruptedly possessed the area of land in dispute since the alleged building of his road in 1990. We disagree. The record reveals that the “mud pit” did not come into existence until after 2006, following the creation of Copiah Creek Camping and Recreation, which invited “tremendous” amounts of ATV activity. Though ATV use in the “mud pit” area has been visible, continuous, and uninterrupted since 2006, it has not been present for the requisite ten years prescribed by statute. Moreover, no fence or entryway was erected in this area, and any activity that took place prior to 2006 was occasional at best. Thus, this element is not satisfied- by clear and convincing evidence, and we find the chancellor had sufficient evidence to support this finding.

5. Exclusive

¶26. “Exclusive • possession means that the possessor ‘evinces an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising [the] dominion of a sole owner.’” Roberts, 118 So.3d at 671 (¶ 15) (quoting Wicker, 937 So.2d at 995 (¶ 40)). “It does not mean that no one else can use the property.” Id. “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.” Id. (citing Moran v. Sims, 873 So.2d 1067, 1069 (¶ 10) (Miss. Ct. App. 2004)).

¶ 27. O’Neal presented a plethora of testimony regarding actions that he and his invitees took on his property as a whole; however, O’Neal failed to prove by clear and convincing evidence that he took exclusive actions on the area encompassing the “borrow pit” and “mud pit.” As discussed above, the “mud pit” meets the exclusivity criteria, but only since 2006. Before the “mud pit,” no such exclusive actions on the land in controversy were proven by clear and convincing evidence. Therefore, we agree with the chancellor’s findings under this prong.

6. Peaceful

¶ 28. “An adverse possessor’s use of a claimed property must be-peaceful.” Scott, 154 So.3d at 915 (¶ 28); see also Miss. Code Ann. § 15-1-13. This Court has held that “expected disputes associated with the use or ownership of the property are not indicative of the possession not being peaceful.” Roberts, 118 So.3d at 671 (¶ 16). Here, .the record does not reflect any dispute arising among the parties until the instant case was filed in 2013.

CONCLUSION

¶29. The chancery court found that O’Neal failed to establish, by clear and convincing evidence, each element of his adverse-possession claim. Reviewing the record, we find that the chancellor had sufficient evidence to correctly apply the facts to the law and reach his conclusion. As such, we find the chancellor did not abuse his discretion and affirm.

¶ 30. THE JUDGMENT OF THE CO-PIAH COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Monuments demarcating property boundaries.

      . King’s pins 1 and 2 relate to the westernmost points- of O’Neal's parcel, while pin 4 relates to the most eastern-by-northeast point of O'Neal’s parcel.


text:
    Kevin Leigh WILLIAMS a/k/a Kevin Williams, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CA-00762-COA
    Court of Appeals of Mississippi.
    05/16/2017

      COPIAH COUNTY CIRCUIT COURT, HON. LAMAR PICKARD, J.
    ATTORNEYS FOR APPELLANT: ROBERT FRED LINGOLD JR., HAD-LEY ELIZABETH GABLE
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: WILSON DOUGLAS MINOR
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. In 2013, Kevin Williams was found guilty of failing to register as a sex offender. This Court later reversed his conviction based on an insufficient indictment. See Williams v. State, 169 So.3d 932, 933 (¶ 1) (Miss. Ct. App. 2014). Williams then requested compensation under the Mississippi Wrongful Conviction Act. See Miss. Code Ann. §§ 11-44-1 to -15 (Rev. 2012). At the close of trial, the circuit court held that Williams had failed to meet the statute’s requirements and ruled in favor of the State. Finding no error, we affirm.

FACTS

¶2. On August 1, 2008, Williams was indicted for sexual battery of a fourteen-year-old female child by a Hinds County grand jury. He pled guilty to one count of sexual battery and was sentenced to serve twenty years, with nineteen years and three months suspended. As a result of his guilty plea, Williams was required to register as a sex offender with the Mississippi Department of Public Safety. See Miss. Code Ann. § 45-33-25 (Rev. 2015). When Williams registered, he listed an address in Crystal Springs, Mississippi, as his primary residential address. Officer Greg Farrell was assigned as Williams’s probation officer.

¶ 3. On September 10, 2012, Officer Farrell went to the address provided. Williams, 169 So.3d at 934 (¶ 4). Williams was not there. Id. Following his visit, Officer Farrell completed a violation report, forwarded it to Williams’s county of conviction, and notified Copiah County Sheriffs Department Investigator Tommy Roberts. Id.

¶4. Investigator Roberts went to the address to determine whether Williams was living there and whether he was in violation of his registration duties as a convicted sex offender. Id. at (¶ 5). He spoke with Williams’s brother, Chris, who said that Williams did not live there. Id. Investigator Roberts testified that he first went to the home on September 4, 2012, and again on September 18, 2012. Id.

¶ 5. On September 18, 2012, Williams was arrested for failure to register as a sex offender. He was detained in the Copi-ah County Detention Center on December 26, 2012, and convicted on March 12, 2013. This Court reversed his conviction in July 2014, and Williams was released a few weeks later.

STANDARD OF REVIEW

¶ 6. “A circuit court judge sitting without a jury is afforded the same deference as a chancellor.” City of Jackson v. Lewis, 153 So.3d 689, 693 (¶ 4) (Miss. 2014) (quoting City of Jackson v. Sandifer, 107 So.3d 978, 983 (¶ 16) (Miss. 2013)). An appellate court will not disturb “a circuit court’s findings following a bench trial unless the findings ‘are manifestly wrong [or] clearly erroneous, or an erroneous legal standard was applied.’ ” Id. (quoting Sandifer, 107 So.3d at 983 (¶ 16)). Further, those “findings ‘are safe on appeal where they are supported by substantial, credible, and reasonable evidence.’” Id. (quoting City of Jackson v. Law, 65 So.3d 821, 826 (¶ 15) (Miss. 2011)).

DISCUSSION

¶ 7. The Mississippi Wrongful Conviction Act, Mississippi Code Annotated sections 11-44-1 through -15, became effective on July 1, 2009. Section 11-44-1 reads:

The Legislature finds that innocent persons who have been wrongly convicted of felony crimes and subsequently imprisoned have been uniquely victimized, have distinct problems reentering society, and should be compensated. In light of the particular and substantial horror of being imprisoned for a crime one did not commit, the Legislature intends by enactment of the provisions of this chapter that innocent people who are wrongfully convicted be able to receive monetary compensation.

To succeed, a claimant must prove by a preponderance of the evidence that:

(a) He was convicted of one or more felonies and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence; and
(i) He has been pardoned for the felony or felonies for which he was sentenced and which are the grounds for the complaint and the pardon is based on the innocence of the claimant which must be affirmatively stated in the pardon; or
(ii) His judgment of conviction was reversed or vacated; and
1. The accusatory instrument was dismissed or nol prossed; or
2. If a new trial'was ordered, he was found not guilty at the new trial; and
(b) He did not commit the felony or felonies for which he was sentenced and which are the grounds for the complaint, or the acts or omissions for which he was sentenced did not constitute a felony; and
(c) He did not commit or suborn perjury, or fabricate evidence to bring about his conviction.

Id. § 11-44-7(1). Unlike a criminal trial, the claimant in a civil action is no longer entitled to a presumption of innocence, and the State does not have the burden of proof. Isaac v. State, 187 So.3d 1009, 1012 (¶ 11) (Miss. 2016), If the claimant meets his burden, he is entitled to “Fifty Thousand Dollars ($50,000.00) for each year of incarceration regardless of the number of felonies for which [he] was convicted” and reasonable attorney’s fees. Miss. Code Ann. § 11-44-7(2).

¶ 8. The issue on appeal is whether the circuit court' erred in finding Williams failed to prove by a preponderance of the evidence that he did not commit the crime of failing to register as a sex offender. See id. Williams testified on his own behalf, claiming he continuously lived at the reported Crystal Springs address from- the time he got out of jail until September 18, 2012. He also testified two of his brothers lived with him.. According to Williams, sometime in 2012, his brother who lived in Hazlehurst called him. and said that he needed to get in touch with Investigator Robérts. He chose not to because he “hadn’t seen [Investigator Roberts] yet.” After he rested his case, Williams submitted a copy of this Court’s opinion reversing his conviction.

¶ 9. The State introduced the transcript from Williams’s criminal trial containing Officer Farrell’s and Investigator Roberts’s testimony. Investigator Roberts repeated his testimony at the civil trial, stating that, when he went to visit Williams twice at his registered address (September 11 and September 18), he was not there. He added that he spoke with Williams’s brother Chris both times. On his second visit, he recorded video of. his conversation with Chris. The recording, which had been admitted at Williams’s criminal trial, was admitted into evidence over Williams’s objection. On the recording, Chris said Williams was not living there and that he had not seen or heard from Williams since September 4. We further note that Williams did not call either of his brothers to testify. The circuit court, as fact-finder, was therefore free to presume that their testimony would haye been adverse to Williams and favorable to the . State. See Hawkins v. Rye, 233 Miss. 132, 101 So.2d 516, 518 (1958).

¶ 10, Following the trial, the court made the following findings of -fact: Williams was arrested for failure to register as a sex offender, his conviction was later reversed and- his indictment dismissed, he was not present at the claimed residence at any time when Officer Farrell and Investigator Roberts visited,- and Williams was aware Investigator Roberts was looking for him to verify his address. The court ultimately found that Williams had failed to show by a preponderance of the evidence that he was wrongfully convicted, as required in section 11-44—7(1)(b). We find substantial evidence to support the circuit court’s ruling in favor of the State.

¶ 11. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.

      . In Williams’s criminal appeal, this Court noted the inconsistencies of Officer Farrell’s and Investigator Roberts’s dates. Williams, 169 So.3d at 934 n.3. Officer Farrell testified that he did not meet Williams until September 5, 2012, and that he did not go to the home until September 10, 2012. Id. Investigator Roberts testified that he first went to the home on September 4, 2012, after he heard of the possible violation from Officer Farrell. Id.