author: BEAM, JUSTICE, KING, JUSTICE,

text:
    Mario RAGLAND a/k/a Mario Darnell Ragland v. STATE of Mississippi
    NO. 2016-KA-01088-SCT
    Supreme Court of Mississippi.
    11/30/2017

      TRIAL COURT ATTORNEYS: ROBERT A. CHAMOUN JENNIFER LYNN MUSSELWHITE MICHAEL DARIN VANCE JOHN W. CHAMPION
    ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT
   BEAM, JUSTICE,

FOR THE COURT:

¶ 1. A DeSoto County jury found Mario Ragland guilty of armed robbery and conspiracy to commit armed robbery, Ragland appeals his convictions, claiming there was insufficient evidence to support either conviction, and the jury verdicts were against the overwhelming weight of the evidence. Ragland also claims the trial court erred in allowing accomplice instructions to be submitted to the jury under the evidence of this case, and that those given were either defective or incomplete. He further contends his trial counsel was constitutionally ineffective for failing to object to the accomplice instructions, and for requesting an accomplice instruction on behalf of the defense that was incomplete or incorrect.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Shortly after 3:00 a.m. on November 17, 2014, Tamieka Campbell Manning, an employee at the Krystal restaurant on Craft-Goodman Road in Olive Branch, Mississippi, was cleaning the restaurant when she turned around and saw a gun in her face. A black male wearing a blue hoodie, surgical mask, gloves, and shiny black shoes, and brandishing a black revolver, demanded money and ordered Manning’and two other Krystal employees to the back of the restaurant, where the office and a safe was located. There, the man took Krystal envelopes, along with a Krystal money bag, each filled with money. Afterward, the man ordered Manning and the other Krystal employees to lie on the floor and cover their heads. Manning saw the man leave Krystal from surveillance cameras in the office. She could not see anything outside the Krystal. Manning reported the robbery to 911 within a minute or two after the man left the restaurant.

¶ 4. Olive Branch Police Officer' David Rumbarger was on patrol in the area when he received a dispatch at approximately 3:06 a.m. regarding a robbery that had just occurred at the Krystal restaurant by a suspect described as a black male. Rum-barger drove to a location on Highway 78 where he thought a suspect might flee; positioned his patrol car, turned on his dash camcorder, and began shining his spotlight toward oncoming traffic traveling westbound from the area of Krystal’s location so he could see the occupants inside the passing vehicles. Rumbarger spotted a vehicle traveling at a high rate of speed which slowed down as it approached his location and then sped back up. Rumbar-ger testified that he saw two black male occupants in the vehicle. Rumbarger said he pulled out behind the vehicle, which “continued to pick up speed at a high rate of speed.” Rumbarger turned on his blue lights and siren for the purpose of stopping the vehicle. Rumbarger caught up to the vehicle as the vehicle was approaching an intersection where other vehicles were stopped at a red light. As Rumbarger got closer, the subject vehicle, with its turn signal activated, maneuvered into the left turning lane, the light for which was showing green for traffic turning left. When Rumbarger pulled up directly behind the vehicle, the vehicle then maneuvered back into the westbound traffic lane, pulling in front of traffic still stopped at the intersection’s red light. The vehicle proceeded through the intersection, maneuvering across both westbound lanes and then onto the right shoulder of the highway, as though it were about to stop. The vehicle, however, continued moving, getting back on Highway 78 until eventually pulling over approximately thirty seconds later, inside the city limits of Memphis, Tennessee.

¶ 5. Once stopped, Rumbarger ordered both occupants to remain in the vehicle with their hands up.- When backup arrived, Rumbarger ordered the driver out of the vehicle, and another officer placed Ragland in handcuffs. The passenger subsequently was ordered out of the vehicle and also handcuffed. Both occupants were cooperative, according to Rumbarger. Ragland was the driver of the vehicle, and he told Rumbarger the reason he did not stop immediately was because the vehicles’s brakes were sticking. The passenger of the vehicle was identified - as Elbert Nichols.

.¶ 6. Olive Branch Detective Aaron Curtis assisted in the investigation of the Krystal robbery. .Curtis responded to Krystal, where he watched surveillance video of the robbery. He then went to the location of the traffic stop, where Memphis police were then assisting. Curtis testified that Nichols’s clothes matched the clothes of the individual shown on Krystal’s video surveillance.

¶7. Curtis photographed evidence as. Memphis police inventoried the inside of the vehicle. They found a money bag and envelopes taken from Krystal inside the glove compartment, and a Krystal envelope on the passenger-side floorboard; a Colt .38 revolver in the center console, a round of ammunition on the floorboard, blue latex gloves, and surgical masks. Latex gloves also were found on Ragland which matched the gloves worn by the suspect inside Krystal, according to the surveillance video.'

¶ 8. Ragland and Nichols were arrested and taken to the Memphis Police Depart^ ment. Detectives interviewed Ragland after he was read his Miranda rights. Ragland denied being at the Krystal or knowing anything about the robbery. He said Nichols had picked him up from an apartment where he had stayed the night. Ragland told detectives Nichols came to the apartment and stayed for a minute, before the two left in the vehicle in which Nichols had arrived, with Ragland driving because Nichols was. .tired. Shortly thereafter, police pulled them over.

' ¶ 9. After the. State’s case-in-chief at trial, the defense moved for a directed verdict, which the trial court denied. Ragland thereafter testified in his own defense. According to Ragland, he was with a girl named Camille Patterson at an apartment complex on Stateline Road, Around 11:00 p.m., Ragland called Nichols asking for a ride home because he had to be at work early,.the next morning, Ragland said’,he worked as a custodian at the Shelby County Schools, and his job required him to wear gloves. Ragland testified Nichols got to the apartment around 3:00 a.m. and came inside the apartment, where they talked for about ten minutes before he and Ragland left. Nichols asked Ragland to drive because Nichols said he had been driving all day and was tired. Ragland could not remember the name of the apartment complex but said it was on Stateline Road.

¶ 10. When asked about being stopped by the police, Ragland said that, as the police vehicle approached them from behind, he was in the process of slowing down to make a left-hand turn and he noticed the vehicle’s brakes were sticking. Therefore, he continued through the intersection and then merged in front of the traffic sitting at the intersection’s red light. Ragland said he had no idea there was money in the glove compartment and a gun in the console. Ragland testified that he asked the officer if he could get his girl to come down to the traffic stop to tell them he had just left her apartment. But the officer told Ragland he was messing with a crime scene. Ragland said no one mentioned the robbery until he was taken to the Memphis Police Department.

¶ 11. Ragland told the jury that he called Patterson on a cell phone while sitting in the back of the police vehicle. He said Patterson went to the scene of the traffic stop and sat across the street watching, and that the police would not allow her to come over and tell them Ragland had just left her apartment. Ragland said he told officers how they could get in touch with her, but they did not care to and never asked for her address in Memphis. According to Ragland, Patterson could not attend his trial as a witness because she was shot in the head two to three days after Rag-land’s arrest.

¶12, On rebuttal, Lieutenant Joshua Mueciarone testified on behalf of the State, Mueciarone said that, as a patrol officer, he is familiar with the streets and apartment complexes located in the area off Stateline Road, He marked the location on a map of Krystal entered into evidence, showing the location of the traffic stop and the location of two apartment complexes in the area. According to Mucciarone, it is 3.5 miles from Krystal to Plantation Apartment Complex, and it takes approximately seven minutes to drive the distance. And it is 4.7 miles from that complex back to the location where Rumbarger first spotted the suspect’s vehicle, a distance that takes about ten to twelve minutes to drive.

¶ 13. Mucciarone, who was on patrol the morning of the Krystal robbery, assisted Rumbarger at the scene of the traffic stop. Mucciarone said he handcuffed Ragland and placed him in the back of the police vehicle. He said no one came to the scene on behalf of Ragland, and he did not see Ragland speak to anyone.

DISCUSSION

I. Sufficiency of the Evidence; Weight of the Evidence

¶14. Ragland claims the evidence presented at trial was insufficient to support his convictions for armed robbery and conspiracy, and the jury’s verdicts for. each conviction were against the overwhelming weight of the evidence. Ragland contends the State’s theory for the armed-robbery count was that Ragland had aided and abetted Nichols in carrying out the armed robbery at Krystal. And for the conspiracy count, the State argued that he and Nichols had entered into a common plan to commit armed robbery, knowingly intending to further that plan. But Ragland submits the State’s case against him was based entirely on circumstantial evidence, which requires a reviewing court to scrutinize the jury’s verdict more closely. Rag-land maintains that his presence in an automobile with Nichols proves nothing.' Ragland argues the State’s evidence does not reasonably exclude the hypothesis that Nichols picked him (Ragland) up at an apartment complex after Nichols committed the robbery and that he (Ragland) had no knowledge of the robbery. Ragland maintains that his own testimony supports a reasonable hypothesis consistent with innocence, and the jury’s verdicts in this case are so contrary to the credible evi-, dence presented in support of that hypothesis that a miscarriage of justice would result were the verdicts affirmed.

¶ 15. When assessing the legal sufficiency of a conviction, a reviewing court determines “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime’beyond a reasonable doubt.” Cotton v. State, 144 So.3d 137, 142 (Miss. 2014). This Court will reverse and render a conviction “[i]f facts and inferences considered by the Court point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendánt was guilty.” Edwards v. State, 469 So.2d 68, 70 (Miss. 1985).

¶ 16. When reviewing a trial court’s denial of a defendant’s motion for a new trial challenging the weight of the evidence, we will not disturb the jury’s guilty verdict unless the record before this Court demonstrates that the verdict is “só contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Miller v. State, 980 So.2d 927, 929 (Miss. 2008). “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the. circuit court has abused its discretion in failing to grant a new trial.” Id. (quoting Boone v. State, 973 So.2d 237, 243 (Miss. 2008)).

¶ 17. In support of his claim that the State failed to prove its case with sufficient evidence, and that his presence in the vehicle with Nichols is not proof of the commission of any crime, Ragland cites the following cases: McRee v. State, 732 So.2d 246 (Miss. 1999); Corbin v. State, 585 So.2d 713 (Miss. 1991); Shepherd v. State, 403 So.2d 1287 (Miss. 1981); and McLain v. State, 198 Miss. 831, 24 So.2d 15 (1945).

¶ 18. In McLain, this Court reversed and rendered a defendant’s conviction for grand larceny of an automobile, where the only evidence presented was a thumbprint of the defendant found on the vehicle’s rear-view mirror by authorities after recovering the stolen vehicle. McLain, 198 Miss. at 836-37, 24 So.2d at 16. McLain held that, while the thumbprint was conclusive evidence of the defendant’s identity and presence in the vehicle, it alone was not “equivalent to evidence of guilt of a particular crime.” McLain explained: “No witness testified to having seen appellant in Clarksdale on the night the car was stolen, or on the day it was recovered; and, as stated, there is no evidence in the record of any kind as to when, or under what circumstances, this print was made on the rear-view mirror.”

¶ 19. Shepherd reversed and rendered a burglary conviction, finding that the evidence presented justified no more than a suspicion. Shepherd, 403 So.2d at 1288. Property consisting of knives and other various items was stolen from an auto parts store some time during the night. Id. at 1287-88. That same night, before anyone had discovered the burglary, officers patrolling the area noticed the defendant’s truck parked in an alley next to a laundromat located a few hundred yards from the auto parts store. Id. at 1288. The officers stopped and spoke to the defendant, who told them he was there to wash his clothes. The officers did not see any clothes, and they saw that the defendant had a new knife which he said he had bought recently in Mobile. The officers did not arrest the defendant, nor did they take his knife. The next day after the burglary was discovered, one of the officers who had spoken to the defendant the night before found numerous knives stolen from the auto parts store, of the same brand the defendant was carrying, wrapped in a shirt lying next to the laundromat. During the investigation, officers brought the defendant’s brother in for questioning. He gave a written statement that the shirt found by the officers was “one that my brother, Danny, had wore.” At trial, however, when called by the State as a witness, the brother denied the shirt found and presented at trial was his brother’s. Id.

¶ 20. In assessing the sufficiency of the evidence, the Shepherd Court concluded that it amounted to “no more than a suspicion.” Id. Shepherd noted that no one had testified that the shirt found by authorities “was the shirt the defendant was wearing the day of the crime, or whether he had a shirt on” when officers saw him the night of the crime. Id. One of the two officers who had encountered the defendant that night did not testify at trial, and the other could not remember at trial. Id. Shepherd then reiterated that “Courts cannot permit a conviction to stand based merely upon suspicion, Wooldridge v. State, 274 So.2d 131 (Miss. 1973).” Shepherd, 403 So.2d at 1288.

¶ 21. Corbin reversed and rendered a burglary conviction, where the defendant was alleged to have broken into a small grocery store sometime during the evening. Corbin, 585 So.2d 713. Similar to McLain, the Corbin majority found the only proof of the defendant’s guilt was fingerprint evidence taken from cigarette cartons allegedly stolen from the grocery store. Id. at 715-16. The record evidence in Corbin showed that the same evening the grocery store was burglarized, and before the burglary was discovered, a pa-tool officer had happened upon an unidentified black male walking down the street a couple of blocks from the grocery .store. Id. at 714. As the officer approached him, the man dropped various items he was carrying and ran. The items were later identified as goods taken from the grocery store and were processed for fingerprints. Four latent prints taken from the cigarette cartons were matched to the defendant. Id.

¶ 22. Citing McLain, the Corbin Court found these facts alone did not prove the defendant was the person who unlawfully entered the grocery store with intent to steal merchandise. Corbin noted that no fingerprints were recovered from the store to place the defendant at the scene, and nothing else was presented to focus the possibilities of the fingerprints being concurrent with the burglary. Id. at 715-16.

¶23. Lastly, in McRee, this Court reversed and rendered a burglary conviction of a dwelling, affirmed by the Court of Appeals, which was based entirely on circumstantial evidence. McRee, 732 So.2d 246. There, a residence allegedly was broken into on a Sunday morning while the residents were at church. Id. at 247-48. Neighbors reportedly saw two white males driving around the neighborhood that same morning in a vehicle later determined to be the defendant’s. Id. One of the neighbors saw the vehicle drive past the residence twice. Another neighbor saw the defendant drive onto the residence’s property and up to the shop located on the side of the residence, and tap his horn. Id. at 248. The neighbor confronted the defendant and asked him what he was doing there. The defendant said he was looking for a girl named “Shanna.” After being told that “Shanna” did not live there, the defendant left and did not return. When the homeowners returned from church, they found their house had been forcibly entered and that a -pocketknife was missing from inside the home. Id.

¶ 24. In reviewing the State’s evidence, the McRee Court found that, when viewed in the light most favorable to the State, the evidence gave “equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged.” Id. at 250 (quoting Shields v. State, 702 So.2d 380, 382 (Miss. 1997)). Specifically, the McRee Court found the circumstantial evidence in the case was insufficient to' prove the defendant was involved in the burglary to the exclusion of any other reasonable hypothesis, “particularly the statements given by [the defendant] to the neighbor and later to law enforcement that he was in the area looking for a young lady named Shanna.” Id. Therefore, “a reasonable jury must necessarily have entertained a reasonable doubt.” Id. (citation omitted).

¶ 25. We find McRee, Corbin, Shepherd, and McLain distinguishable from the case before us. First, unlike in those cases, substantial direct evidence was presented in this case as to who actually perpetrated the crime, and when it occurred. There never was any real question at trial that Nichols was the person who committed the robbery inside the Krystal restaurant at approximately 3:00 a.m. on November 17. Second, while Ragland’s alleged participation in the crimes charged was predicated wholly on circumstantial evidence, ’that evidence as a whole sufficiently negated any other reasonable hypothesis or theory of innocence in the case,

¶ 26. The vehicle Ragland was driving, in which Nichols was a passenger, was pulled over by authorities at approximately 3:11 a.m'. Recovered from the vehicle were a Colt .38 revolver, latex gloves and surgical masks, ammunition, and an envelope, along with a money bag from Krystal. Latex gloves, similar to those used by Nichols, also were found on Ragland’s person.

¶ 27. Ragland told authorities he had not been to Krystal, and he did not know a gun was in the vehicle or that the vehicle’s glove compartment contained an envelope of money from Krystal. Photographs taken of interior of the vehicle and later submitted to the jury showed latex gloves and a Krystal envelope ' on the. passenger-side floorboard. The photographs showed surgical masks located in plain view in a compartment above the vehicle’s gear shift, ammunition on the passenger-side floorboard, a money bag taken from Krystal located in the glove compartment, and a revolver sitting in the yehicle’s center console.

¶28. According to Ragland’s testimony at trial, Nichols had picked him up from an apartment complex somewhere on State-line Road shortly after 3:00 a.m. Nichols came inside the apartment, where they talked for about ten minutes. When Rag-land and Nichols left the apartment, Nichols asked Ragland to drive. Shortly after leaving the apartment complex, they were pulled over by law enforcement.

. ¶ 29. Ragland maintains on appeal that the jury was required, to accept this version of events because it presents a reasonable hypothesis consistent with innocence. We disagree.

¶ 30, During its case-in-chief, and again on rebuttal following the defense’s casein-chief, the prosecution presented evidence that no apartments complexes are located near Krystal. According to Rum-barger, who pulled Ragland over, “[r]ela-tive to the time, there’s no way that anyone could get to an apartment complex between when I came in contact with them and travel from Krystals.” According to Mucciarone, it is 3.5 miles from Krystal to the nearest apartment complex and it takes approximately seven minutes to drive the distance. And it is 4.7 miles from that complex back to the location where Rumbarger first spotted the suspects vehicle, a distance that takes about ten to twelve minutes to drive. ■

¶ 31. From the facts and circumstances of this case, the jury rationally could And that Ragland’s explanation to authorities and his claim at trial, that Nichols had just picked him up from an apartment complex, was implausible and false. The temporal proximity between the reported armed robbery and the time Ragland' and Nichols were stopped by authorities leads to a reasonable inference that Ragland was with Nichols at Krystal at the time of the armed, robbery and before it occurred. And, based on the evidence found inside the vehicle, the jury reasonably could infer that Ragland was in possession of latex gloves found on his person for the same reason Nichols lyas-in possession of his: to participate in an armed robbery planned and carried out at Krystal.

.¶ 32. Based on our review of the record, the proof in this case supports a reasonable conclusion that Ragland and Nichols had a pre-arranged plan to rob Krystal, and that Ragland aided and abetted Nichols in carrying out the armed robbery itself.

¶ 33. Further, the evidence does not “preponderate heavily” against the jury’s guilty verdicts such that allowing the verdicts to stand “would sanction an unconscionable injustice.” Flynt v. State, 183 So.3d 1, 11 (Miss. 2015). The jury is the judge of the weight and credibility of the witnesses’ testimony, and it is free to reject all or some of each witness’s testimony. Johnson v. State, 477 So.2d 196, 206-07 (Miss. 1985).

¶ 34. This issue is without merit;

II. Whether accomplice instructions should have beep given or whether those given were ineffective or incomplete.

¶ 35. Ragland contends the following instructions were either unsupported by the evidence or failed to conform with requirements of Milano v. State, 790 So.2d 179 (Miss. 2001).

Instruction 11 (S-4): Participation in an armed robbery is sufficient to make one a principal in the crime regardless of whether that participant was the person holding the weapon.
Instruction 12 (S—5): One who willfully, unlawfully, and feloniously aids, abets, assists, or otherwise encourages the commission of a crime is just as guilty under the law as if he or she had committed the whole crime with his or her own hand.
Instruction 15 (D-3): An accomplice is a person who intentionally and voluntarily joins with another person in committing a crime.

¶ 36. The State contends that Rag-land is procedurally barred from complaining about these instructions because he did not object to the State’s instructions at trial and submitted his own accomplice instruction.

¶37. This Court repeatedly has held “that an offended party’s failure to object to jury instructions at trial procedurally bars the issue on appeal.” Neal v. State, 15 So.3d 388, 397 (Miss. 2009) (quoting Smith v. State, 835 So.2d 927, 939 (Miss. 2002)). Further, a defendant will not be heard on appeal to complain about a jury instruction given at his request. Musselwhite v. State, 212 Miss. 526, 54 So.2d 911 (1951); Long v. State, 163 Miss. 535, 141 So. 591 (1932). Therefore, Ragland is left to a claim of plain error, review of which is subject to this Court’s discretion, procedural bar notwithstanding. Thomas v. State, 126 So.3d 877, 879 (Miss. 2013).

¶38. Ragland maintains that the State’s entirely circumstantial evidence against him is an important factor in this case. Ragland cites Brazile v. State, 514 So.2d 325 (Miss. 1987), in which the defendant and his codefendant were arrested when they were discovered speeding from the scene of a store burglary. After a seventeen-mile chase, their vehicle was stopped. The. defendant was the driver and his codefendant was the passenger. New clothing, complete with hangers and price tags, was piled in the back seat of the car and in the trunk. The price tags indicated that the clothing had come from- the- store just burglarized. At trial, the trial court provided an aiding-and-abetting jury instruction at the State’s request. Id. at 325-26, ■

¶ 39. The Brazile Court held that the instruction constituted reversible error and remanded the case for a new trial. Id. at 326. Brazile found that, even though sufficient- circumstantial evidence showed that both defendants were piesent and actually participated in the commission of the burglary, there was “no evidence that either of the defendants aided or abetted the other.” Id. Brazile further found the instruction ■ awkward and misleading as written because it appeared to allow the ■jury to determine that, if both defendants committed the crime, only the defendant, Clovis Brazile, could be found guilty. Id. The instruction also erroneously implied that neither’ .defendant needed to have been present at the- burglary to be found guilty. Id.

¶40. We find Brazile■ inapplicable in Ragland’s case. Unlike Brazile, the evidence supported that Ragland aided and .abetted Nichols, who, as already discussed, was shown to be the actual perpetrator of the Krystal armed robbery. Such was not the case in Brazile, in which no evidence was presented as to who actually committed the alleged burglary. - Id. at 325-26. Here, having already found that the State presented sufficient evidence that Ragland aided or abetted Nichols in the commission of the armed robbery at -Krystal, we find no merit in Ragland’s claim that an accomplice instruction was not supported by the evidence in this case.

¶41. As to the complained-of instructions themselves, Ragland contends they failed to conform with the requirements of Milano, in which this Court adopted the Fifth Circuit’s “Pattern Jury Instruction on Aiding and Abetting” in order to cure confusion over the issue.

¶ 42. In Milano, this Court found error with jury instructions submitted in the case that permitted the jury to find the defendant guilty as an aider or abettor if the defendant “did any act which is an element of the crime.” Milano, 790 So.2d at 184-85. Milano instructed that the problem with such an instruction is that it could be perceived as relieving the State of its burden of proof as to every element of the crime charged beyond a reasonable doubt. Id.

¶ 43. But, while the Milano Court found the complained-of instructions in the case before it erroneous, the instructions nonetheless constituted harmless error when read together with other instructions that properly stated the law and set forth all the elements of the offense the State had to prove beyond a reasonable doubt. Id.

¶ 44. Here, Ragland acknowledges that a proper elemental instruction can cure a defective aiding-and-abetting instruction. But he contends that jury instruction ten, the elemental instruction setting forth the elements of armed robbery, exacerbated the incorrect accomplice instructions rather than cured them, because instruction ten references jury instruction nine, which Ragland contends is an elemental instruction for conspiracy.

¶45. Ragland argues that, at a minimum, the cross-referencing of these instructions confused or misled the jury. And when read together, instructions nine and ten also created a circumstance in which the jury could have found that, if Ragland committed the crime of conspiracy, then he automatically was guilty of armed robbery.

¶ 46. We disagree. As the State points out, while instruction nine discusses conspiracy, it is not an elemental instruction. The elemental instruction for the crime of conspiracy was set forth in jury instruction eight. Instruction nine, however, instructs the jury that if it found Ragland and Nichols conspired to commit armed robbery, it might consider the acts and statements of either man committed in furtherance of the robbery as the acts, statements, and declarations of each. Instruction nine’s last paragraph directs the jury as follows:

Therefore, if you find from the evidence in this case, beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis other than that of guilty, that on or about • November 17, 2014, [Ragland] conspired with [Nichols] to commit the crime of Armed Robbery, then you may consider the acts, state- • ments and declarations of [Ragland] or [Nichols] committed in furtherance of the crime as the acts, statements and/or declarations of each.

¶ 47. We agree with the State that when read together, instructions nine and ten did not create a circumstance that, if the jury found Ragland committed the crime of conspiracy, -he then also was guilty of the crime of armed robbery. Instruction ten still required the jury to find from the evidence that Ragland committed all the elements of armed robbery, and if the State “failed to prove any one or more of these elements beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis other than that of guilt, then you shall find the Defendant not guilty.”

¶ 48. Here, we find that when read together, instructions nine, ten, eleven, twelve and fifteen do not constitute plain error.

III. Ineffective Assistance of Counsel

¶ 49. Ragland’s appellate counsel claims trial counsel was constitutionally ineffective for failing to object to the State’s accomplice instructions 'and for submitting a deficient accomplice instruction of his own. For reasons just discussed, this was not ineffective assistance of counsel.

¶ 50. Ragland also has submitted a pro se reply brief, asserting additional ineffee-tive-assistance-of-coimsel claims. The record on appeal, however, does not allow us to address these additional claims on the merits.

¶ 51. Generally, ineffective-assistance-of-counsel claims aré more appropriately brought in a post-conviction proceeding. Archer v. State, 986 So.2d 951, 955 (Miss. 2008). On direct appeal, a reviewing court is limited to the trial-court record, which often times contains insufficient evidence to address an ineffectiveness claim adequately. Id.

¶ 52. That is the case here with Rag-land’s ineffectiveness claim(s). Therefore, we- dismiss Ragland’s ineffective-assistance-of-counsel claim(s) without prejudice, preserving Ragland’s right to bring the claim(s) in a properly filed motion for post-conviction relief, if he so chooses.

CONCLUSION

¶ 58. For- the aforementioned reasons, we affirm Ragland’s convictions of armed robbery and conspiracy to commit armed robbery.

¶ 54. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL AND ISHEE, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J. CHAMBERLIN, J., NOT PARTICIPATING.

KING, JUSTICE,

DISSENTING:

¶ 55. Because insufficient evidence exists to support Ragland’s convictions, I would reverse and render his convictions. I therefore respectfully dissent.

• ¶56. Regarding Ragland’s armed robbery charges, the State conceded that Ragland was not the individual who entered and robbed Krystal; instead, it argued that Ragland was an aider and abettor. A person “who is present at the commission of a criminal offense and aids, counsels,, or encourages another in the commission of that offense is an ‘aider and abettor’ and is equally guilty with the principal offender.” Swinford v. State, 653 So.2d 912, 915 (Miss. 1995) (internal quotations omitted). So to convict Ragland for armed robbery, the State had to prove beyond a reasonable doubt that Ragland was .both present at the robbery’s commission and that, he aided, counseled, or encouraged Nichols in the commission of the robbery.

¶57. The State "did produce sufficient evidence that Nichols ' robbed Krystal. Moreover, due to the evidence regarding the short time frame between the robbery and the stop, the State put forth sufficient evidence to support a finding that Nichols did not pick Ragland up after the robbery as Ragland had informed law enforcement. While these facts may be sufficient to establish that Ragland was an accessory after the. fact to the robbery, they are plainly insufficient to establish beyond a reasonable doubt that Ragland aided and abetted Nichols in thq armed robbery.

¶58. The pertinent question here is whether, when the evidence is viewed “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.” Cotton v. State, 144 So.3d 137, 142 (Miss. 2014) (internal quotations omitted). The State failed to put forth any evidence of an act it contends Ragland committed to aid, counsel, or encourage the armed robbery. Instead, it asked the jury to speculate that because Ragland was with Nichols after the crime occurred, because some evidence indicated that Ragland may have known about the crime after the crime occurred, and because some evidence existed that Ragland may have helped Nichols after the crime occurred, Ragland therefore must have aided and.abetted Nichols in committing the crime.

¶ 59. The majority argues that the evidence regarding the time it took to get from Krystal to- the apartment complex “lends to a reasonable inference that Rag-land was with Nichols at Krystal at the time of the armed robbery, and before it occurred.” Yet, it is undisputed that Nichols was the lone robber inside the Krystal. At best, this evidence leads to a reasonable inference that Ragland was in the car at the time Nichols robbed Krystal; yet, nothing in that inference shows how Rag-land acted to aid, counsel, or encourage the armed robbery. Indeed, nothing in that inference shows that Ragland even had knowledge that Nichols intended to commit the robbery before it occurred. For example, Nichols’s revolver could have easily been concealed from Ragland before the robbery. Yet, the majority would convict a person simply for an inference that, shortly before a crime, the person was in the presence of someone else who committed that crime. The majority also points to the evidence in the car and that latex gloves were found on Ragland’s person as evidence that he planned to participate in the armed robbery. The evidence in the car consisted of the proceeds of the robbery and items that could have easily been concealed from Ragland prior to the robbery. Thus, at best, the evidence in the car leads to an inference that Ragland knew of the robbery after it occurred. But nothing about this evidence points to how Ragland acted to aid, counsel, or encourage the armed robbery, or that he even knew it was going to occur. The latex gloves likewise could easily have been given to Rag-land after the robbery in case he handled its proceeds. And in any event, finding latex gloves on the person of a custodian, standing alone, is hardly sufficient evidence to convict Ragland of armed robbery and conspiracy.

¶ 60. “In circumstantial evidence cases, the State is required to prove the defendant’s guilt not only beyond a reasonable doubt, but to the exclusion of every reasonable hypothesis consistent with - innocence.” McRee v. State, 732 So.2d 246, 250 (Miss. 1999). As the majority admits, this case is “predicated wholly on circumstantial evidence.” Maj. Op. at ¶ 25. This evidence, namely -that items indicating the completion of a crime were in Ragland’s line of sight and that the timeline of events indicates that Ragland was likely with' Nichols before the robbery, is plainly not sufficient to exclude every reasonable hypothesis consistent with innocence. One reasonable hypothesis consistent with innocence for the crimes charged is that Ragland became aware that Nichols committed a robbery only after the completion of the robbery. “This evidence viewed in the light more favorable to the State[] gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged.” Id. (internal quotations omitted). “Thus, a reasonable jury must necessarily have entertained a reasonable doubt.” Id. (internal quotations and alterations omitted). The evidence was therefore insufficient to convict Ragland of armed robbery as an aider and abettor. .

¶ 61. Nor was the evidence sufficient to convict Ragland of conspiracy to commit armed robbery, which required the State to prove beyond a reasonable doubt that Ragland entered into an agreement to commit the armed robbery. See Miss. Code Ann. § 97-1-1 (Rev.. 2014). In the same way that the State failed to show any act Ragland committed to aid or abet the armed robbery, it likewise failed to introduce evidence that Ragland agreed to anything, except perhaps to Nichols’s flight after the crime.

¶ 62. Because the State’s evidence was woefully insufficient to convict Ragland of armed robbery or conspiracy to commit armed robbery, I would reverse and render his convictions.

KITCHENS, P.J., JOINS THIS OPINION."

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

      . The instruction is as follows:
      The guilt of a defendant in a criminal case may be established without proof that the , defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by that person through the direction of another person as his or her agent, by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.
      If another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of such other persons just as though the defendant had committed the acts or engaged in such conduct.
      Before any defendant may be held criminally responsible for the acts of others it is necessaiy that the accused deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.
      Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.
      In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

        Milano, 790 So.2d at 185 (quoting Fifth Circuit Pattern Jury Instructions (Criminal) 2.06 (Aiding and Abetting) (Agency) (1998)).

      . Ragland was not charged with accessory after the fact. See Miss. Code Ann. § 97—1—5 (Rev. 2014).


source: Caselaw Access Project

author: KITCHENS, PRESIDING JUSTICE,

license: Public Domain

text:
    Maurice BROWN v. STATE of Mississippi
    NO. 2016-KA-01333-SCT
    Supreme Court of Mississippi.
    12/07/2017

      ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SU-BER, GEORGE T. HOLMES
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARAWAKELANDBYRD
    BEFORE RANDOLPH, P.J., KITCHENS, P.J., AND BEAM, J.
   KITCHENS, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. On the morning of July 30, 2015, Maurice Brown entered the home from which Mattie Moore, the neighborhood “candy lady,” sold candy, chips, soda pops, cigarettes, and other knick-knacks. Mattie Moore’s granddaughter, who lived with her grandmother, was startled from her sleep when her grandmother loudly called her name. A young African-American man, whom the granddaughter, Cheramie Moore, later identified from a photograph lineup as Maurice Brown, appeared in the doorway to her bedroom with a shotgun in hand. The man demanded that Cheramie Moore “give me the stuff’ and she produced about a hundred dollars from a nearby drawer. Maurice Brown handed the cash to his brother, Jonathan Brown, who had come up behind him holding a cigar box which belonged to Mattie Moore. With Maurice Brown still pointing his gun in Cheramie Moore’s direction, the pair backed down the hall toward a door to the outside. Maurice Brown was indicted for two counts of armed robbery. After trial in the Circuit Court of the First Judicial District of Hinds County, Maurice Brown was convicted of the first count, the armed robbery of Cheramie Moore, and was acquitted of the second count, the armed robbery of Mattie Moore. He was sentenced to a prison term of twenty-seven years. On appeal, Maurice Brown argues that the evidence was insufficient to support his conviction for armed robbery. Because his contention is meritless, we affirm.

STATEMENT OF THE FACTS

¶2. Eighty-one-year-old Mattie Moore lived on Harry S. Truman Drive in Jackson, Mississippi, with her granddaughter, Cheramie Moore, and her grandson, James Warren, also known as “Blue Jean.” To supplement her income, Mattie Moore sold sundries, including candy, chips, soda pops, and cigarettes, from her home to people in the neighborhood.

¶3. On the morning of July 30, 2015, Cheramie Moore, who worked at St. Dominic Hospital as a nurse on the oncology floor and had been released at 7:00 a.m. from a twelve-hour shift, returned to the home she shared with her grandmother and fell asleep. She was startled awake by the sound of her wheelchair-bound grandmother loudly calling her name. A young African-American man met Cheramie Moore at the door to her bedroom wielding a shotgun. When the man ordered Chera-mie Moore to “give me the stuff,” she produced about a hundred dollars from a nearby drawer. Cheramie Moore recognized the man from the neighborhood and later identified him from a photograph lineup as Maurice Brown. She testified that Maurice Brown’s brother, Jonathan Brown, whom she also later identified in a photograph lineup, “came up behind” Maurice Brown with a cigar box in hand. Maurice Brown then handed Jonathan Brown the cash. The cigar box belonged to Mattie Moore and Cheramie Moore stated that her grandmother kept rolled-up change in the box.

¶ 4.' Cheramie Moore testified that Maurice Brown pointed the shotgun at her and at her grandmother and that his doing so placed her “in a state of sheer panic” and in “fear[] for [her] life.” According to Cheramie Moore, Maurice Brown “kind of stood there for a moment” and he and Jonathan Brown “kind of backed away slowly.” She continued: “[t]hey kept the gun on me but they kind of backed away toward the door” and, “[a]s they were exiting our hallway they kind of did, like, this motion towards me and my grandmother.” She clarified that “Maurice still had the gun in his hand” and that “Jonathan was on the side of him.”

¶ 5. When the pair left, Cheramie Moore called 911. Officer James Roberts, who at the time was employed by the Jackson Police Department Robbery Homicide Division, was called to the scene to investigate. Officer Roberts interviewed Mattie and Cheramie Moore. Officer Roberts’s investigation led him to the home of Antoinette Brown, who informed him that the description “sounded like her nephews.”

¶ 6. A photographic lineup then was prepared which included a photograph of Maurice Brown. According to Detective Corey Jenkins, a Jackson Police Department Robbery Homicide Detective, Chera-mie Moore identified Maurice Brown from the photographic lineup as the person who had robbed her and her grandmother. Detective Jenkins testified that he did not show the photo lineup to Mattie Moore because she was considered legally blind.

¶ 7. Maurice Brown was indicted for two counts of armed robbery pursuant to Mississippi Code Section 97-3-79 (Rev. 2014) on January 21, 2016. Prior to Maurice Brown’s trial and unrelated to the facts of this case, Mattie Moore died; her funeral took place the Saturday before trial began.

¶ 8. Maurice Brown was tried in the Circuit Court of the First Judicial District of Hinds County from August 8-10, 2016. At the conclusion of the State’s cáse, Maurice Brown filed a Motion for a Directed Verdict, which the trial court denied.

¶ 9. Jonathan Brown, Maurice Brown’s brother, testified as a witness for the defense and gave an account of the events of July 30, 2015, which differed from Chera-mie Moore’s version. Jonathan Brown, who was under indictment, waived his Fifth Amendment privilege against self-incrimination. He testified that he and his brother went to the Moore residence to confront Blue Jean about an inappropriate remark Blue Jean allegedly had made in reference to the Browns’ ninth-grade sister’s figure. Blue Jean was not there, and, according to Jonathan Brown, Mattie Moore, the candy lady, who was sitting in the driveway, asked him to help her into the house. Jonathan Brown said he had been to the candy lady’s house before. He continued that his brother, Maurice Brown, “came to open the door.” According to Jonathan Brown, when Mattie Moore turned her head, he—Jonathan Brown—stole a cigar box and two packs of cigarettes. He stated that his brother, Maurice Brown, “was standing in the doorway,” but that when he first went into Mattie Moore’s house, his brother had been in the driveway. Jonathan Brown testified that he ran out of the house without paying for the items, that the cigar box he stole contained twenty-two dollars, and that neither he nor his brother had a gun.

¶ 10. The jury found Maurice Brown guilty of the first count of armed robbery, the armed robbery of Cheramie Moore, and acquitted him of the second count, the armed robbery of Mattie .Moore. A sentencing hearing was held on August. 25, 2016, Brown received a twenty-seven-year sentence. His Motion for Judgment Notwithstanding the Verdict, or, in the Alternative, for a New Trial, was denied.

¶ 11. The sole issue Maurice Brown raises on appeal is whether the evidence was sufficient to support the guilty verdict.

STANDARD OF REVIEW

¶ 12. This Court has held that, in reviewing whether sufficient evidence exists to support a verdict, the “critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’” Bush v. State, 895 So.2d 836, 843 (Miss. 2005), abrogated on other grounds by Little v. State, 2017 WL 4546740 (Miss. Oct. 12, 2017), (quoting Carr v. State, 208 So.2d 886, 889 (Miss. 1968)). “-‘[T]he relevant question is whether, after viewing the evidence in.the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Bush, 895 So.2d at 843 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 13. This Court continued:

Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render.

Bush, 895 So.2d at 843 (quoting Edwards v. State, 469 So.2d 68, 70 (Miss. 1985)). But if the evidence “is of such quality and weight” that, “ ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ ” the evidence will-be deemed to have been sufficient.” Id. (quoting Edwards, 469 So.2d at 70).

DISCUSSION

¶ 14.' Thé elements of armed robbery are:

“(1) a felonious taking or attempt to take; (2) from the person or from the presence; (8) the personal property of another; (4) against his will; (5) by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.”

Lenoir v. State, 224 So.3d 85, 91 (Miss. 2017) (quoting Cowart v. State, 178 So.3d 651, 666 (Miss. 2015) (citing Miss. Code Ann. § 97-3-79 (Rev. 2014))).

¶ 15. Maurice Brown claims on appeal that the evidence to support his conviction was insufficient because Jonathan Brown testified that he, not Maurice Brown, took items from Mattie Moore and that neither of them had a gun. Maurice Brown points out that he “was only identified by [Cheramie] Moore at trial as the person that took the money from her at gun point.”

¶ 16. But Cheramie Moore testified that she had been startled awake by the sound of her grandmother’s loudly calling her name, that Maurice Brown had met her at the door to her bedroom with a shotgun in hand, that Maurice Brown had instructed her to give him “the stuff,” whereupon she had produced about a hundred dollars in cash. Cheramie Moore continued that Maurice Brown’s brother, Jonathan Brown, “came up behind” Maurice Brown holding Mattie Moore’s cigar box, in which she kept rolled-up change. Maurice Brown handed his brother the cash and kept the shotgun pointed at Cheramie Moore. The pair then backed down the hallway slowly, toward the door. Cheramie Moore testified that Maurice Brown pointed the shotgun at her and that his doing so placed her “in a state of sheer panic” and in “fear[] for [her] life.”

¶ 17. According to Cheramie Moore’s testimony, Maurice Brown took from her person and presence property belonging to her and to.her grandmother against her will by putting her in fear of immediate injury, by the exhibition of a shotgun. Her testimony supports each element of the crime of armed robbery. “[Vjiewing 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, 895 So.2d at 843 (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781).

¶ 18. Maurice Brown argues that the jury should have- discarded Cheramie Moore’s testimony in favor of Jonathan Brown’s. But a testimonial conflict is not enough to overcome a jury’s verdict:

This Court has' held that “we do- not reverse criminal cases where there is a straight issue of fact, or a conflict in the facts; juries are impaneled for the very purpose of passing upon such questions of disputed fact, and we do not intend to invade the province and prerogative of ' the jury.”

Hales v. State, 933 So.2d 962, 968 (Miss. 2006) (quoting Hyde v. State, 413 So.2d 1042, 1044 (Miss. 1982)). Here, “if this Court were to reverse the verdict in this matter the province and prerogative of the jury would certainly be invaded.” Hales, 933 So.2d at 969. Moreover, this Court has held that:

The testimony of a single uncorroborated'witness is sufficient to sustain a conviction, Holt v. State, 186 Miss. 727, 191 So. 673 (1939), Ragland v. State, 403 So.2d 146 (Miss. 1981), even though there may be more than one person testifying to the contrary, Freeland v. State, 285 So.2d 895 (Miss. 1973); Clanton v. State, 279 So.2d 599 (Miss. 1973).

Williams v. State, 512 So.2d 666, 670 (Miss. 1987). The jury was entitled to believe Cheramie Moore’s version of events and to reject Jonathan Brown’s.

¶ 19. Maurice Brown argues also that no physical evidence connected him to the crime, though “[fjinger prints were taken.” But “[t]he absence of physical evidence does not negate a conviction where there is testimonial evidence.” Lenoir, 224 So.3d at 94 (quoting Burleson v. State, 166 So.3d 499, 512 (Miss. 2015)).

CONCLUSION

¶ 20. Because the evidence was sufficient to support Maurice Brown’s conviction for the armed robbery of Cheramie Moore, this Court affirms his conviction and sentence.

¶ 21. AFFIRMED.

RANDOLPH, P.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.

      . Jonathan Brown appears to have been indicted for a separate crime. His lawyer stated that he had advised "Jonathan Brown that he has a pending case against him in this courtroom, I've advised him that obviously, even though he's not indicted as a codefendant to his brother in this case, that he is [for] all [intents and] purposes a codefendant in this case.” :


author: CHAMBERLIN, JUSTICE,

text:
    Xavier Collins JOHNSON a/k/a Xavier Johnson v. STATE of Mississippi
    NO. 2016-KA-01020-SCT
    Supreme Court of Mississippi.
    12/07/2017

      ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: ERIN E. BRIGGS, GEORGE T. HOLMES
    ATTORNEY FOR ÁPPÉLLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KATY GERBER
   CHAMBERLIN, JUSTICE,

FOR THE COURT:

¶1. A Madison County jury convicted Xavier Collins Johnson of (1) burglary of a dwelling;' (2) aggravated assault; and (3) conspiracy ''to commit credit-card fraud. The trial judge' sentenced Johnson as a habitual offender under Mississippi Code Section 99-19-81 (Rev. 2015), and Johnson’s sentences for the burglary and assault counts were enhanced because the victim was over the age of sixty-five. Johnson appeals, raising seven issues. We affirm Johnson’s convictions for the reasons provided herein.

FACTS AND PROCEDURE

¶ 2. Bobby and Ann Hall (Mr. and Mrs. Hall) were an elderly couple, in their seventies, residing in the city of Canton. On July 30, 2014, following his daily routine, Mr. Hall awoke at 5:30 a.m,, turned on the coffee pot and went outside to get the newspaper. Mr. Hall does not remember anything after he went outside to get the newspaper. Mrs. Hall awoke at 6:15 a.m., and she went to the kitchen. Although she noticed that the newspaper was still in the driveway, she believed her husband was in the garden. She then proceeded to get dressed, and when she returned to the kitchen and picked up her purse, she noticed it was lighter than usual. Suspecting that something was wrong, Mrs. Hall began searching for Mr. Hall, and upon walking outside, she found him lying in the driveway with a bloody face. Mr. Hall had a pulse but was unresponsive. Mrs. Hall also saw her credit cards scattered across the driveway.

¶ 3. After Mrs. Hall called 911, Mr. Hall was airlifted to University of Mississippi Medical Center where he was diagnosed with a traumatic brain injury, which was consistent with an assault. Mr. Hall remained in a coma for five weeks, and he returned home three months after the incident. He can no longer drive his truck or RV and is unable to walk without the assistance of a cane.

¶4. The credit-card company notified Mrs. Hall of several fraudulent charges, and she forwarded this information to law-enforcement officials. After an investigation, the police arrested Ashley Williams for the fraudulent use of Mrs. Hall’s credit card. Williams first told police officials that she had found the card in a crack in her house, but she later admitted that Xavier Johnson had given her the card. According to Williams, Johnson had told her that the card had belonged to his girlfriend and that he wanted to help her out. Johnson, however, requested half of the cash Williams could retrieve from the card.

¶ 5. Law-enforcement officials arrested Johnson on August 4, 2014. Nine months later, on May 6, 2015, Johnson was indicted for: (1) burglary of a dwelling, in violation of Mississippi Code Section 97-17-23 (Rev. 2014); (2) aggravated assault, in violation of Mississippi Code Sections 97-3-7(2)(a)(i) (Supp. 2016) and 97-3-7(14)(c) (Supp. 2016); and (3) conspiracy to commit credit-card fraud, in violation of Mississippi Code Sections 97-19-21 (Rev. 2014) and 97-1-1 (Rev. 2014). The grand jury also indicted Johnson as a habitual offender and subjected him to enhanced punishments for the burglary and aggravated-assault counts. Johnson waived arraignment, was appointed counsel, and pleaded not guilty.

¶ 6. In August 2015, Investigator Robert Winn of the Madison County District Attorney’s Office conducted a search of Velma Glass’s home. Glass is Johnson’s grand- ■ mother, and Johnson lived with Glass prior to his arrest. Winn did not have a warrant to search Glass’s house, but, according to Winn, Glass permitted him to search her home upon request. During the search, Winn collected numerous articles of clothing that belonged to Johnson, including a pair of black Nike shoes. A forensic DNA analyst tested the items collected and found the presence of human blood on the right Nike shoe. The analyst also made a DNA comparison of the blood to a buccal swab taken from Mr. Hall and confirmed that the blood on the shoe was from Mr. Hall.

¶7. On November 30, 2015, Johnson’s jury trial commenced. Mr. Hall testified that Johnson previously had been to his house on several occasions. One week before the incident, Johnson had helped Mr. Hall move a freezer and some cabinets out of his house. On the day before the attack on Mr. Hall, Johnson washed and waxed half of Mr. Hall’s RV. Johnson was supposed to return the next day to finish the other half.

¶8. The State also called Williams to testify. In addition to testifying about the above-mentioned statements she gave to the police, Williams stated that Johnson had borrowed her car the night before the assault on Mr.- Hall, and Johnson had agreed to take Williams’s mother to work at 6:00 a.m. the next morning. When Johnson arrived at Williams’s house, she stated that he “was looking sweaty and nervous and he [sic] shaking his right hand.” Johnson then asked for baby wipes and used them to wipe blood off his right knuckles. Williams further testified that Johnson had blood on his right sock and foot. Williams told the jury that Johnson took off black Nike shoes, threw his socks away, and put •his shoes back on. Williams also testified about a conversation she had with Johnson prior to trial when the two were in the same police car on the way to court. Williams asked Johnson why he had placed Mr. and Mrs. Hall’s cell phones under her house, to which Johnson responded: “I shouldn’t have done it.” Later when Williams and Johnson were at the courthouse, Johnson told Williams: “[I]f his wife would have woke up, [I] would have shot her in the head[.]”

¶ 9. After closing arguments, Johnson requested a two-theory jury instruction, which the trial judge refused. The jury subsequently convicted Johnson on all three counts. Johnson was sentenced to fifty years for the burglary, forty years for the aggravated assault, and five years for the conspiracy to commit credit-card fraud, each sentence to run consecutively. Johnson filed a motion for a new trial or, alternatively, for judgment notwithstanding the verdict, which the trial judge also denied. Johnson appealed.

STATEMENT OF THE ISSUES

¶ 10. Johnson raises seven issues on appeal, two through appointed counsel from the Indigent Appeal Division of the Office of the State Public Defender, and five through a pro se supplemental brief. The issues have been restated for clarity.

I. Whether the evidence was sufficient to support the breaking element of Johnson’s burglary conviction.
II. Whether the trial judge abused his discretion by failing to grant Johnson’s requested two-theory jury instruction.
III. Whether Johnson’s counsel was ineffective.
IV. Whether the indictment is void due to failure to charge Johnson with an essential element of the statute and/or crime, and whether the statutes are vague, ambiguous, or unconstitutional as applied;
V. Whether Johnson was denied his due-process right to an initial appearance according to Rule 6.03 of the Uniform Rules of Circuit and County Court Practice.
VI. Whether Johnson was denied his due-process right to an arraignment according to Rule 8.01 of the Uniform Rules of Circuit and County Court Practice.
VII. Whether Johnson’s speedy-trial rights were violated.

DISCUSSION

I. Whether the evidence was sufficient to support the breaking element of Johnson’s burglary conviction.

¶ 11. Johnson, through counsel, first asserts that the State failed to provide sufficient evidence for the “breaking” element of his' burglary conviction. Johnson argues that there was no testimony about whether Mr. Hall closed the door on his way to get the newspaper., If Mr. Hall had left the door open and Johnson had walked through the open door, Johnson claims that the breaking element could not be satisfied absent a finding of “constructive” breaking. Finally, Johnson asserts there is no evidence of constructive breaking because “there is no one that Johnson could have threaten, [sic] deceived, or tricked into allowing him permission into the home.”

¶ 12. The standard of .review for a challenge to the sufficiency of the evidence is de novo. Brooks v. State, 203 So.3d 1134, 1137 (Miss. 2016). In applying de novo review, we determine .“whether, after viewing the evidence in the light most favorable, to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Warren v. State, 187 So.3d 616, 627 (Miss. 2016)). The State is given the benefit of “all reasonable inferences that may be drawn” from the evidence. Warwick v. State, 179 So.3d 1069, 1073 (Miss. 2015).

¶ 13. Mississippi Code Section 97-17-23(1) sets out the elements.the State must prove to convict a defendant of burglary. Those elements are: (1) the unlawful breaking and entering of a dwelling and (2) the intent to commit some crime therein. Miss. Code Ann. § 97-17-23(1) (Rev. 2014). “ [B]reaking’ can be actual or constructive.” Templeton v. State, 725 So.2d 764, 766 (Miss. 1998).

¶ 14. This Court has defined actual breaking as “any act or force, however, slight, ‘employed to effect an entrance through any usual or unusual place of ingress, whether open, partly • open,' or closed.’ ” id. (quoting Smith v. State, 499 So.2d 750, 752 (Miss. 1986)). Constructive breaking occurs when entrance is “obtained in consequence of violence commenced or threatened by defendant.” Id. (quoting Smith, 499 So.2d at 752-53); see also Ross v. State, 603 So.2d 857, 865 (Miss. 1992) (“Constructive breaking may occur when a defendant gains entry by becoming violent or threatening violence.”).-Additionally, constructive breaking may be found “where an entry is effected by fraud or intimidation.” Id* (citing Holderfield v. State, 215 Miss. 564, 61 So.2d 385, 386 (1952)).

¶ 15. Johnson points to a Court of Appeals decision for the proposition that “the mere act of walking through a raised, open garage door does not constitute an ‘act or force, however slight, employed to effect an entrance’ and'is not a ‘breaking.’” Ladd v. State, 87 So.3d 1108 (Miss. Ct. App. 2012). He then correlates the facts at hand to those from Ladd, concluding that “walking through an open-door is not, by itself, sufficient force to constitute a breaking.”

¶ 16. While no evidence was presented supporting the proposition that Mr. Hall left the door open when he went to fetch the newspaper, the same can be said about whether Mr. Hall closed the door. However, regardless of whether Johnson entered an open, shut, or partially closed door, sufficient evidence was presented to show a constructive breaking. In Christmas v. State, this Court found that “[b]y Holding a gun to [the victim’s] head and forcing her into the home, [the defendant] met Mississippi’s éstáblished standard for constructive breaking[.]” Christmas v. State, 10 So.3d 413, 422 (Miss. 2009). Further, in Ross, this Court stated:

Either Ross’s brandishing of a weapon, (threatening violence), or grabbing and pushing the complainant (actual force), satisfies the element of breaking and entering. It does not matter how much Johnson had opened the door to speak with Ross. She did not let him in.- He forced his way in.

Ross, 603 So.2d at 865. Thus, aside from considering whéther an access to the home was open or closed, this Court has stated numerous times that actual force or threatening violence constitutes a constructive breaking. See id.; see also Christmas, 10 So.3d at 422.

¶ 17. The Christmas Court went on to state that a specific definition of constructive breaking was not required, whereby “an instruction on the constituent elements of burglary” was given. Id. at 422. The Christmas Court further held that “instructions in a criminal case which follow the language of a pertinent statute are sufficient.” Christmas, 10 So.3d at 422 (quoting Rubenstein v. State, 941 So.2d 735, 772 (Miss. 2006) (internal quotations omitted)).

¶ 18. Here, the jury instruction on breaking followed verbatim the language cited and upheld by the Christmas Court. See Christmas, 10 So.3d at 422. The instruction defined a breaking as “... any act or force, however slight, employed to effect an entrance through any usual or unusual place of ingress, whether open, partially open or closed.” The jury instructions correctly instructed the jury on the constituent elements of a constructive breaking. Cf. Watson, 123 So.3d at 448 (Lamar, J., concurring) (holding a new trial was mandated due to the jury instruction erroneously stating the law on breaking, as opposed to omitting an instruction on constructive breaking). Under the instant facts, .the omission of a specifically stated constructive-breaking instruction did ■ not negate the fact “that the. jury received adequate instructions regarding this offense.” Christmas, 10 So.3d at 422.

¶ 19. Further, it is worth’noting that in both Christmas and Ross, the defendants displayed a weapon at the victim’s doorstep, thereby forcing the victim to open the door and' allow entrance. Christmas, 10 So.3d at 416; Ross, 603 So.2d at 865. The import from Christmas and Ross is that a constructive breaking is focused on the fact that actual force was used to remove an obstacle and gain entrance into the house, regardless of the specific location of the assault. , - •• • . , .

¶ 20. Considering the facts in the light most-favorable to the State, Johnson forcefully removed an obstacle—Mr. Hall—to gain entrance into the Halls’ house. Indeed, the jury convicted Johnson of assaulting Mr. Hall, and he suffered a traumatic brain injury as a result of the attack. Thus, Johnson’s entrance was “obtained in consequence of violence commenced” - by Johnson. Templeton, 725 So.2d at 766.

1121. Thus, for the above reasons, we hold that the State' presented sufficient evidence for the “breaking” element of Johnson’s burglary conviction.

II. Whether the trial judge abused his discretion by failing to grant Johnson’s requested two-theory jury instruction.

¶ 22. Johnson next argues that the trial judge erred by refusing Instruction D-6, a two—theory jury instruction. Johnson argues that both his aggravated-assault and burglary convictions were based on purely circumstantial evidence. A two-theory jury instruction is an instruction given, where -appropriate, only in cases in which the evidence is entirely circumstantial. It is different from a general circumstantial-evidence instruction. Therefore, Johnson argued that he was entitled to the two-theory instruction. It is different from a general circumstantial-evidence instruction. Hence, Johnson argued that he was entitled to the two-theory instruction.

¶ 23. We review the refusal “of a jury instruction under an abuse-of-discretion standard.” Burleson v. State, 166 So.3d 499, 509 (Miss. 2015) (quoting McInnis v. State, 61 So.3d 872, 875 (Miss. 2011)). A trial judge “may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or refuse a jury instruction that is without foundation in the evidence.” McInnis, 61 So.3d at 875 (quoting Jones v. State, 797 So.2d 922, 927 (Miss. 2001)). “[W]hen serious doubt exists as to whether an instruction should be included, the doubt should be resolved in favor of the accused.” Burleson, 166 So.3d at 509 (citations omitted).

¶24. Recently, the Court stated that “[a] two-theory instruction instructs the jury what to do when the ‘record supports two or more hypotheses of the crime committed’ and all the evidence of the crime .is circumstantial.’” McInnis, 61 So.3d at 875 (quoting Goff v. State, 14 So.3d 625, 677-78 (Miss. 2009) (Waller, C.J., dissenting)). Mclnnis correctly iterated a point that consistently has been overlooked in our two-theory caselaw. To receive the two-theory instruction, the evidence must be purely circumstantial and two reasonable hypotheses or theories arising out of the evidence must be presented to the jury. See Goff, 14 So.3d at 677-78 (Waller, C.J., dissenting); Thompson v. State, 83 Miss. 287, 35 So. 689, 690 (1904). In other words, in order to receive the two-theory, special, circumstantial-evidence instruction, two reasonable hypotheses or theories must be presented to the jury: one theory showing how the evidence illustrates the defendant’s innocence and the other theory showing how the same evidence illustrates the defendant’s guilt.

¶ 25. Further, as stated above, as with other jury instructions, it is within the trial judge’s discretion _ to grant a two-theory jury instruction, and it is subject to an abuse-of-discretion standard of review.

¶26. Turning to the instant case, the State presented the following evidence to show Johnson’s guilt: (1) eyewitness testimony from Williams that Johnson had given her Mrs. Hall’s stolen credit card; (2) testimony from Williams that on the morning of the assault Johnson had bloody knuckles and blood on his right foot; (3) DNA evidence showing that Mr. Hall’s blood was on- Johnson’s right shoe; (4) testimony that Johnson would have shot Mrs. Hall in the head had she awakened; and (5) testimony that Johnson had been at Mr. Hall’s house the day before the assault and was supposed to return the next day. Johnson failed to use the evidence to present a second competing theory. He merely maintained that he did not commit the crime. To argue that the same evidence supports two different theories is not the same as here, where Johnson simply argued he did not commit the crime but failed to point to evidence that specifically can be read to support this argument. Thus, he did not present a second theory or hypotheses based in the evidence.

¶27. We hold that no error occurred when the trial court refused to grant Johnson’s proposed two-theory instruction. Such an instruction need be considered only on a case-by-case basis when the jury is presented two reasonable hypotheses or theories, and the evidence, is wholly circumstantial. Further, the decision to grant a two-theory instruction' rests in the sound discretion of the trial court.

III. Whether Johnson’s counsel was ineffective.

¶28. In his pro se supplemental brief, Johnson asserts that he received ineffective assistance of counsel for four reasons: (1) Failure to filé certain pretrial motions; (2) no meaningful objections throughout trial; (3) failure to object to the State’s jury instructions; and (4) failure to cross-examine certain witnesses effectively on certain points.

¶ 29. “Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings.” Archer v. State, 986 So.2d 951, 955 (Miss. 2008). On direct appeal, this Court is bound by the record in its review “and there may be instances in which insufficient evidence exists within the record to address the claim adequately.” Id. (citing Wilcher v. State, 863 So.2d 776, 825 (Miss. 2003)). In such cases, the defendant’s “ineffective-assistance-of-counsel claim is dismissed without prejudice,” and the defendant “will be allowed, if he chooses, to file an appropriate post-conviction proceeding raising the ineffective-assistance-of-counsel issue.” Archer, 986 So.2d at 957.

¶ 30. Here, the record does not affirmatively show ineffectiveness of counsel, and neither party has stipulated that the record is inadequate to address this claim. See Bell v. State, 202 So.3d 1239, 1242 (Miss. 2016). Therefore, we dismiss this claim without prejudice to allow Johnson to bring it in a later, post-conviction-relief proceeding.

IV. Whether the indictment is void due to failure to charge Johnson with an essential element of the statute and/or crime, and whether the statutes are vague, ambiguous, or unconstitutional as applied.

¶ 31. For the first time on appeal, Johnson also. attacks each statute under which he was indicted, as well as portions of his indictment. None of the following arguments in this issue was pre-. sented to the trial judge and therefore all are procedurally barred. See Patrick v. State, 754 So.2d 1194, 1195-96 (Miss. 2000). Johnson, however, requests this Court to review these arguments under plain-error review. “A review under the plain error doctrine is necessary when a party’s fundamental rights are affected, and the error results in a manifest miscarriage of justice.” McGee v. State, 953 So.2d. 211, 215 (Miss. 2007). Further, “[u]nder the plain-error doctrine, we can recognize obvious error which was not properly raised by the defendant on appeal, and which affects a defendant’s fundamental, substantive right.” Smith v. State, 986 So.2d 290, 294 (Miss. 2008) (internal quotation omitted). It is best used for “ ‘correcting obvious instances of injustice or misapplied law.’ ” Id. (quoting Newport v. Fact Concerts, 453 U.S. 247, 256, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981)). As stated in detail below, we' hold that, under plain-error review, the instant issue is without merit.

¶ 32.' In Count I of the indictment, the grand jury charged Johnson with burglary violating Mississippi Code Section 97-17-23. Johnson argues that the statute applies only to a “convicted” person, not a “charged” person. Because he had not been convicted at the time he was indicted,Johnson asserts that the indictment on this count is void, and he argues that the statute also should be voiced for vagueness. This Court holds these arguments to be nonsensical and without merit. The elements of the statute still must be satisfied for one to be convicted of the crime, not charged. Further, we hold the statute sufficiently prescribes what behavior constitutes the crime of burglary. Therefore, the issues with Count I do not raise to the level of plain error, and they are without merit.

¶ 33. In Count II of the indictment, the grand jury charged Johnson with aggravated assault under Mississippi Code Section 97-3-7(2)(a). Johnson makes three arguments with regard to Count II. We hold that none of the three arguments rises to the level of plain error, and therefore, all are without merit.

¶ 34. First, he argues that the indictment failed to inclúde the essential element “with a deadly weapon or other means likely to produce death or serious bodily harm.” This element applies to subsection (2)(a)(ii), and Johnson was indicted under subsection (2)(a) (i). Further, the statute contains a list of possible charges separated by “or.” Thus, section (2)(a)(i) is not dependent on (2)(a)(ii) for someone to be charged with aggravated assault. Second, he argues the statute is unconstitutional under the Equal Protection Clause because it uses , the word “he” and therefore treats one group (males) unequally with another. The use of the masculine pronoun in the statute does not treat one group unequally. Miss. Code Ann. § 1-3-17 (Rev. 2014) (“Words in the masculine gender shall embrace a female as well as a male, unless a contrary intention may be manifest.”). Third, he argues the statute is unconstitutional because it presumes guilt at an attempt, in violation of the presumption of innocence. The fact that a person may be found guilty of an assault by attempting the unlawful conduct, however, does not create a presumption of guilt until proven Innocent. A person may be charged with the crime of attempting to commit a crime. Bucklew v. State, 206 So.2d 200, 202 (Miss. 1968). Therefore, the issues with Count II do not rise to the level of plain error, and they are without merit.

¶35. In Count III of his indictment, Johnson was indicted for conspiracy to commit credit-card fraud in violation of Mississippi Code Sections 97-19-21 and 97-1-1. First, Johnson argues, citing Williams v. State, 169 So.3d 932 (Miss. 2014), that the indictment is legally insufficient because it is. factually vague and ambiguous and fails to provide the specific subsection under which he was charged. Second, Johnson presents a sufficiency-of-the-evidence claim, arguing that the State put on no proof for the charge of conspiracy to commit credit-card fraud. We hold that neither of these arguments rises to the level of plain error, and therefore, both are without merit.

¶36. First, in Williams, the Court of Appeals- reversed Williams’s conviction, finding that the statute provided “myriad ways a person could violate the statute,” and the indictment failed “to provide sufficient facts to properly notify Williams of the charge.” Williams, 169 So.3d at 936-937. Here, although multiple ways to "be convicted of conspiracy and credit-card fraud exist under these statutes, unlike Williams, the instant indictment provided specific facts notifying Johnson of the charge against him and his alleged violations of the statutes. Therefore, this issue with Count III does not rise to the level of plain error.

¶ 37. Second, turning to Johnson’s sufficiency-of-the-evidence claim, Williams testified that Johnson gave her a credit card with Mrs. Hall’s name on it and that he asked for half of the cash Williams could retrieve from the card. Williams further testified that the credit card was used on multiple occasions and that, after the credit , card was declined several times, Johnson told her to throw the card away. These facts, taken in- the light most favorable to the State, show that a rational juror could have found all of the above-mentioned elements for; this conspiracy charge. Therefore, this issue with Count III also fails to .rise to the level of plain error.

V. Whether Johnson was denied his due-process right to an initial appearance according to Rule 6.03 of the Uniform Rules of Circuit and County Court Fractice.

¶ 38. For the first time on appeal, Johnson asserts that he was not given an initial appearance until ten months after his arrest, in violation of Rule 6.03 of the Uniform Rules of Circuit and County Court Practice. Under Rule 6.03, every person in custody is entitled to an initial appearance within forty:eight hours of arrest. See URCCC 6.03. Johnson asserts that he was arrested on August 4, 2014, but he did not receive an initial appearance until more than nine months later, on May 21, 2015. However, the record is silent as to when Johnson had his initial appearance.

¶39, “This Court declines to consider matters which were never presented or argued in the trial court and' are not part of the record before us today.” Hampton v. State, 148 So.3d 992, 995 (Miss. 2014). Further, “[i]ssues cannot be decided based on assertions from the briefs alone.” Id, at 995; see also Miss. R. App. P. 28(b) (“[A pro se supplemental brief in a criminal appeal] may address issues not raised by counsel, but such issues must be based on the record.”). Because this issue contains an allegation outside of the record, we decline to address it.

VI. Whether Johnson was denied his due-process right to an arraignment according to Rule 8.01 of the Uniform Rules of Circuit and County Court Practice.

¶ 40. For the first time on appeal, Johnson claims three violations in regard to his arraignment and trial date. First, he was not arraigned within thirty days after being served with the indictment. Second, the trial judge did not enter an order setting a trial date within sixty days of his arraignment. Third, he was not brought to trial within 270 days following his arraignment. Again, the instant claimed violations were not brought before the trial court, and they do not rise to the level of plain error. See McGee, 953 So.2d at 215; Patrick, 754 So.2d at 1195-96.

¶ 41. Under Uniform Rule of Circuit and County Court Practice 8.01:

Arraignment, unless waived by the defendant, shall be held within thirty (30) days after the defendant is served with the indictment. At or within sixty (60) days, of arraignment (or waiver thereof), the court shall enter an order setting a date for trial. Unless good cause be shown ... an accused shall be brought to trial no later than two hundred seventy (270) days following arraignment (or waiver thereof).

Id. The record reveals that Johnson was indicted on May 6, 2015. On May 21, 2015, fifteen days later, the record shows that Johnson waived arraignment and that the trial judge entered an order setting a date for trial. Johnson’s trial began on November 30, 2015, which was within the 270-day period. Thus, as concluded above, this claim is barred.

VII. Whether Johnson’s constitutional speedy-trial right was violated.

¶42. Lastly, and again for the first time on appeal, Johnson asserts that his constitutional right to a speedy trial was violated. As stated above, when a defendant presents such a claim for the first time on appeal, the error must rise to the level of plain error, meaning the defendant’s fundamental right was violated. Dora v. State, 986 So.2d 917, 924 (Miss. 2008) (quoting Sanders v. State, 678 So.2d 663, 670 (Miss. 1996)) (citation omitted).

¶43. Johnson does not address the fact that this issue was not brought up in the trial court; rather, like the defendant in Dora, Johnson “seeks to leapfrog over the required plain-error analysis by making Barker[ ] genre assertions .... ” Id. at 925. Within the framework of plain-error review, the Barker factors are: the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker, 407 U.S. at 530, 92 S.Ct. 2182.

¶44. The following are the pertinent dates for this analysis:

A.Length of the Delay

¶ 45. “The constitutional right to a speedy trial attaches ‘at the time of a formal indictment or information or else the actual restraints imposed by arrest and holding to a criminal charge.’ ” Rowsey v. State, 188 So.3d 486, 495 (Miss. 2015). The delay in this case between Johnson’s arrest and the start of trial was approximately 483 days, which is presumptively prejudicial. See Graham v. State, 185 So.3d 992, 1005 (Miss. 2016) (showing that a delay of eight months or more is presumptively prejudicial).

B.Reason for Delay

¶ 46. Once a presumption of prejudice is shown, “the burden of persuasion must shift to the State to show good reason for the delay.” Id. at 1005-06. When the State deliberately attempts to delay trial, this factor “should weigh heavily against the State[.]” Id. at 1006. “[T]he absence of intentional delay,” such as negligence on behalf of the prosecution, also weighs against the State, though not as heavily. Perry v. State, 637 So.2d 871, 875 (Miss. 1994). Here, the State admits that the record is void as to why there is more than a nine-month delay in the time between Johnson’s arrest and his indictment. However, because Johnson never brought up this issue in the trial court, the State was never on notice to explain such delay on the record.

¶ 47. Although the record does not give a reason for the delay, Johnson suggests that the record implicitly shows that the prosecution was waiting to gather more evidence before indicting him. He points to the DNA evidence found in his grandmother’s home, arguing that it wasn’t until then that the State indicted him and set a trial date. This argument fails, however, because the investigator, Winn, did not find this evidence until August 2015, nearly three months after Johnson was indicted. In sum, the record shows no evidence of a deliberate attempt to delay Johnson’s trial.

C.Defendant’s Assertion of Right

¶48. The record gives no indication that Johnson ever asserted his right to a speedy trial. On appeal, Johnson argues that the Court should depart from considering the instant factor while analyzing speedy-trial claims. The United States Supreme Court has held, “The defendant’s assertion of his speedy trial right ... is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker, 407 U.S. at 531-32, 92 S.Ct. 2182. When a defendant fails to assert this right, it is “difficult for a defendant to prove that he was denied a speedy trial.” Id. at 532, 92 S.Ct. 2182. Therefore, we decline to depart from this factor, and it weighs against Johnson.

D. Prejudice to the Defendant

¶ 49. “Under the prejudice prong of Barker, the Court is to consider prejudice to the defendant, bearing in mind three interests: (1) prevent oppressive pretrial incarceration; (2) minimize anxiety and concern of the accused; and (3) limit the possibility that the defense will be impaired.” Johnson v. State, 68 So.3d 1239, 1244 (Miss. 2011). “Generally, proof of prejudice entails the loss of evidence, the death of witnesses, or the staleness of an investigation.” Jenkins v. State, 947 So.2d 270, 277 (Miss. 2006). Further, the Jenkins Court stated that “a defendant’s assertion of prejudice attributable solely to incarceration, with no other harm, typically is not sufficient to warrant reversal.” Id. at 277.

. ¶ 50. The record is void of any inference that evidence was lost, witnesses died or evidence went stale. Further, the majority of Johnson’s assertions for this factor solely center around his alleged anxiety from being incarcerated. No evidence, however, exists supporting this alleged anxiety. See Johnson, 68 So.3d at 1245 (“In order for this prong to favor any defendant, evidence of legitimate anxiety and concern (medical records, documentation from the jail, etc., must exist.”).

¶ 51. After considering all of the above-mentioned factors, no plain error exists showing that Johnson’s constitutional speedy-trial ■ right was' violated. No evidence indicates that the delay was deliberate. Further, the record provides no indication that Johnson demanded a speedy trial or suffered any prejudice. Thus, the issue is without merit.

CONCLUSION

¶ 52. For the reasons fully expounded upon above, the Court holds the following: (1) the evidence was sufficient to support the breaking element of Johnson’s burglary conviction; (2) the trial court did not abuse its discretion by failing to grant Johnson’s two-theory jury instruction; (3) Johnson’s claim of ineffective assistance of counsel is dismissed without prejudice; (4) the indictment was proper and the applicable statutes were not vague, ambiguous, or unconstitutionally applied; (5) Johnson was not denied his due-process right to an initial appearance; (6) Johnson was not denied his due-process right to an arraignment; and (7) Johnson’s speedy-trial rights were not violated. Thus, Johnson’s convictions and sentences are affirmed.

¶ 53. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL, BEAM AND ISHEE, JJ„ CONCUR.

      . The name on the stolen card was “Ann P. Hall.” See Exhibit 4. The police also arrested Williams’s sister, Kimberly Williams, for fraudulent use of Ms. Hall’s credit card.

      . The bloody socks were not introduced into evidence.

      . Mr. and Mrs. Hall’s cell phones were not submitted into evidence at trial.

      . A majority of the Court agreed with this conclusion in Ladd, See Watson v. State, 123 So.3d 446 (Miss. 2013) (“We agree with the Court of Appeals in Ladd, that merely walking through an open door does not satisfy the 'breaking’ requirement for burglary of a dwelling.”).

      . Johnson did not request a jury instruction that specifically defined “constructive breaking.”

      . The Mississippi Legislature has determined aggravated assault, as provided in Section 97-3-7(2)(a) and (b) and Section 97-3-4(a), to be a crime of violence. See also Miss. Code Ann. § 97-3-2(c) (Rev. 2014).

      .The parties use the term “two-interpretation” instead of "two-theory.” “Two-theory” jury instruction can be used interchangeably with “two-interpretation,” and the majority of this Court’s caselaw uses "two-theory.”

      . Refused Instruction D-6 stated as follows:
      The Court instructs the Jury that if it [sic] there be any fact or circumstance in this case susceptible of two interpretations, on [sic] favorable and the other unfavorable to the defendant, and when the jury has considered such fact or circumstance with all the other evidence, if there is a reasonable doubt as to the correct interpretation, then you must resolve such doubt in favor of the defendant and place upon such fact or circumstance the interpretation favorable to the defendant and place upon such fact or circumstance the interpretation to the defendant.

      . As Johnson did not request a general circumstantial-evidence instruction and tire two-theory instruction is not otherwise warranted, the issue of the wisdom or necessity of granting a circumstantial-evidence instruction at all is not properly before the Court, and at this time, it is not addressed. The general circumstantial-evidence instruction states:
      The court instructs the jury that if the State has relied on circumstantial evidence to establish its theory of guilt of the defendant, ■ then the evidence for the State must be so strong as to establish the guilt of the defendant, not only beyond a reasonable doubt, but the evidence must be so strong as to exclude every other reasonable hypothesis other than that of guilt.
      Miss, Practice Jury Instructions Criminal § 1:20 (2d ed. 2016).

      .Johnson does not challenge that the State asserted direct evidence of the count for conspiracy to commit credit-card fraud.

      . Johnson had two separate attorneys work on his case during the proceedings below: L. Abraham Rowe and Wesley Thomas Evans. Rowe represented Johnson throughout the majority of the pre-trial proceedings but, because of a personal issue, Rowe had to step away as counsel. Evans represented Johnson at trial.

      . Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).