author: CARLTON, J„

text:
    George Lee PARKS a/k/a George Lee Parks, III a/k/a George L. Parks, III a/k/a George Parks, III, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01607-COA
    Court of Appeals of Mississippi.
    02/07/2017
    Rehearing Denied April 4, 2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES

      ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD ■
    BEFORE GRIFFIS, P.J., BARNES . AND CARLTON, JJ. ,
   CARLTON, J„

FOR THE COURT:

.¶ 1. Pursuant to a multicount indictment, a Harrison County jury found George Parks guilty of two counts of sexual battery, one count of aggravated assault, one count of kidnapping, and one count of possession of a controlled substance. Parks now appeals his .convictions and'sentences. On appeal, he asserts the following issues: (1) whether the circuit court erred by denying his motion to dismiss the indictment; (2) whether he was improperly arraigned; (3) whether his right to a speedy trial was violated; (4) whether the circuit court erred by denying his motion for new appointed counsel; (5) whether the circuit court erred by denying his motion to suppress evidence; (6) whether the circuit court erred by allowing the State to use evidence of his prior bad acts; (7) whether he was denied the right to a public trial; (8) whether his attorney provided ineffective assistance of counsel; (9) whether prosecutorial misconduct denied him a fair trial; (10) whether the circuit court erred by granting the State’s proposed jury instruction S-6; and (11) whether the circuit court erred by denying his request' for bail pending appeal.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3.. On the evening of August 27, 2014, Officer Michael Warren of the Biloxi Police Department responded to a dispatch about a stabbing victim at Biloxi Regional Medical Center (now called Merit Health Hospital). Officer Warren proceeded to the hospital, where he interviewed the reported victim, Desiree Stringer, and photographed her injuries. Based on the information Stringer provided, officers were dispatched to Parks’s residence.

¶4. Along with others, Officer Bryan Wallace of the Biloxi Police Department responded to the dispatch to Parks’s residence. Officer Wallace testified that Parks exited the residence ánd met the officers in the front yard. Officer Wallace stated that Parks had a large amount of dried and fresh blood on his left hand, and his right hand was swollen. Officer Wallace testified that he asked whether Parks had anything in his pockets that could cause harm. After Parks answered that he, did not, Officer Wallace asked for permission to search Parks’s pockets. Officer Wallace testified that. Parks consented to the search. In Parks’s shirt pocket, Officer Wallace discovered a plastic cellophane bag containing two off-white rocks. The jury later heard expert trial testimony that the two rocks were cocaine.

¶ 5. Officer Wallace testified that he and another officer conducted a safety search of Parks’s residence to ensure that no other victims, suspects, or persons needing medical attention were inside the home. Officer Wallace stated that the safety search lasted about two minutes. During the safety search of Parks’s home, Officer Wallace observed marijuana cigarettes in plain view as well as a large amount of dried blood on the floor, the walls, and a bedroom mattress. After completing the safety search, Officer Wallace escorted Parks to the hospital to receive medical treatment for any possible injuries. Officer Wallace testified that, during the ear ride, Parks said a woman named “Paige” did his laundry and that she must have put the cocaine in his shirt pocket. The jury later heard trial testimony that one of the State’s other witnesses, a woman named Tonda Adkisson, also went by the name of “Summer Paige Williams.”

¶ 6. After obtaining a warrant, law enforcement performed a search of Parks’s residence and collected evidence. Nathan Holly, an employee of the Mississippi Forensics Laboratory, testified as an expert in forensic DNA analysis. Holly testified that he performed a DNA analysis on blood swabbed from a knife found in Parks’s residence and on blood swabbed from the back of Parks’s left hand. According to Holly, each swab contained a DNA mixture of both Parks’s and Stringer’s blood.

¶ 7. The 'jury also heard testimony from Stringer. Stringer stated that she had known Parks for approximately four years and that the two had once worked for the same cab company. Stringer testified that she had even rented a room in Parks’s house for several months about three years previously whilé she saved money to buy her own house. Stringer further testified that, on only one occasion about three- and-a-half to four, years .previously, she and Parks .had been intimate.

¶ 8. At the time of the alleged incident in August 2014, Stringer lived in Bogalusa, Louisiana, with her mother. Stringer testified that she traveled to Biloxi, Mississippi, on August 25, 2014, to stay several mights at Parks’s home and to hang out. Stringer stated that she intended to stay in Parks’s guest, bedroom. On the evening of August 26, 2014, Stringer testified that she and Parks went to pick up Adkisson, whom they both knew. Stringer testified that, upon arriving at Adkisson’s home, she went inside to get Adkisson. Stringer stated that Parks appeared irritated when .the two women returned to the car. According to Stringer, Parks was- irritated because they were not going to be able to stop by the liquor store before closing time.

¶ 9. Stringer further testified that, as she drove down- the highway, Parks accused Adkisson of hitting him -and calling him a derogatory name. However, Stringer stated,that Adkisson did neither: of these things. Stringer testified that Parks, who was sitting in' the front passenger seat, turned around and began slapping and punching Adkisson, who was seated directly behind him. Stringer -.said that she pulled over and broke up the altercation. Stringer further stated. that Parks then exited the car and began walking down the road. Stringer and Adkisson then drove back to Adkisson’s house.

. ¶ 10. Stringer testified that she decided to collect her stuff from Parks’s house and to then return to. Adkisson’s house to spend the night. However, Stringer stated that Parks was already at his, house when she arrived. According to Stringer, Parks was angry and began asking- ..Stringer questions about whether Adkisson was cheating on him, whether Adkisson loved him, and- whether Adkisson loved Stringer more than him. Stringer testified .that Parks did not like her responses and began making superficial cuts on her legs with a knife. Stringer further testified that Parks called .her names, and ordered her to stay -at his house and answer his questions. In addition, Stringer said Parks threatened to cut off her hand if she moved.

¶ 11. Despite Parks’s. threats, Stringer said that she tried to run into the laundry room that adjoined Parks’s bedroom. However, Stringer testified that Parks grabbed her by her hair, flung her to the ground, kicked her in the head three times, and cut her with the knife. Stringer further stated that Parks dragged her back into his bedroom and made her sit on the bed. She said that he then placed a television in front of the door to prevent her from leaving the bedroom. Stringer testified that she also tried to hide underneath Parks’s bed at one point. However, she said that- Parks began to jump up and down on the bed and that he stabbed her with a broken golf club, which cut her -face.

¶ 12. Stringer further testified that Parks said the cutting and the beating were really intended for Adkisson. At one point,- Stringer said Parks thought he heard the police. Stringer stated that Parks made her sit on his lap while he held the knife to her throat. Stringer testified that Parks said he would slit her throat and kill her and then kill himself.

¶ 13. Although she had her clothes on when the altercation started, Stringer testified that Parks took her clothes off. Stringer testified that Parks said he was going to have sex with her since he could not have sex with Adkisson. Stringer testified that Parks grabbed her legs, and when she would not open her legs, he cut her on the back of her legs and on her bottom to force her to open her legs. Stringer stated that Parks then put his penis in her vagina. He then grabbed her by her hair and stuck his penis in her mouth. She testified that he said he would stab her in the top of her head if she bit him.

¶ 14. Overall, Stringer estimated that Parks held her against her will and assaulted her for seventeen to nineteen hours. She testified that Parks cut her all over her body, including her head, neck, arm,-back,' knees, ankles, legs, and hands. Toward the end of the ordeal, Stringer testified that .Parks forced’ her to smoke methamphetamine. Stringer said Parks told her that she needed to smoke the methamphetamine to calm down. Stringer further testified that she began to notice she was no longer bleeding, and she thought she had become dehydrated. Stringer stated that she eventually convinced Parks that she could get Adkisson to see him. Stringer testified that Parks then cleaned up, changed clothes, and brought her some clothes to wear.

¶ 15. As they were driving to Adkisson’s house, Stringer testified that Parks told her to just take him back to his house. Stringer testified that she. refused to .go back inside Parks’s house and that he got out of the car and told her to do what she had to do: Stringer stated that she then drove immediately to the hospital.

¶ 16. Jennifer Guice, an emergency-room nurse, testified that she was working on August 27, 2014, when Stringer arrived at the hospital. Guice testified that Stringer was very weak and required urgent medical attention. Stringer told Guice that she had been beaten, stabbed, kicked, punched, and held hostage. According to Guice, Stringer had bruises, scrapes, lacerations, and dried blood all over her body. Guice further testified that Stringer’s injuries were consistent with those inflicted by a knife and a broken golf club.

¶ 17. Dr. William Kennerly, the general surgeon who treated Stringer’s wounds, testified that he closed thirty-three of the larger wounds on Stringer’s body.- Dr. Kennerly testified that the surgery lasted about an hour and a half, and then Stringer stayed in the hospital several days to recover. Dr. Kennerly stated that Stringer’s injuries appeared consistent with knife wounds. He further stated that, in his expert opinion, not all of Stringer’s wounds could have been self-inflicted.

¶ 18. During its case-in-chief, the- State presented testimony from two women— Kristin Cannata and Adkisson—who both stated that Parks had engaged in behavior toward them that was similar to-the behavior alleged by- Stringer. After both Canna-ta and Adkisson testified, the circuit court instructed the jury that the State offered the testimony only to establish Parks’s motive, intent, and, modus operandi. The circuit court further instructed the jury that it should not consider the testimony to be substantive evidence in the allegations made by Stringer. The circuit court also reminded the jury that Parks was only on trial for the crimes alleged in the indictment and not for other acts.

¶ 19. Cannata testified about two past incidents involving Parks. Cannata stated that she had gone to high school with Parks and had -known him' for twenty-seven years. Cannata testified that, on September 24, 2010, Parks held her overnight against her will at his home in Biloxi. Cannata stated that, at the time, she and Parks were friends.. Cannata testified that Parks became angry about some of her past relationships. According to Cannata, Parks took away her phone, hit her in the head and face, dragged her around by her hair, held a knife to her throat, and threatened to hit her with a hammer. Cannata also testified that she had sex with Parks during the incident because she felt, that she had-no other choice. On cross-examination, Cannata stated that the charges for this incident were dismissed.

¶20. Cannata testified that the second incident occurred at her home in -Las Vegas,- Nevada, on December' 18, 2011, and that Parks again held her overnight against her will. Although she testified that she was struggling with the previous incident, Cannata admitted that Parks was an invited guest in her home. Cannata said that Parks became angry after her ex-husband came over to retrieve an item she had borrowed. According to Cannata, Parks hit her, pinned her on the bed, scraped scissors on her breasts and stomach, cut her stomach, punched her- repeatedly in the ribs,- and choked her. Can-nata testified that Parks broke apart the scissors and used the blades like knives. Cannata further testified that Parks masturbated on top of her while he had her pinned on the bed. On cross-examination, Cannata stated that, to the best of her knowledge, Parks faced a felony prosecution for the incident. She stated that she believed Parks took a plea deal and pled guilty: to the charge in exchange -for attending an anger-management class.

¶ 21. The State next called Adkisson to testify about Parks’s past behavior toward her. Adkisson first corroborated Stringer’s testimony that Parks hit Adkisson on the night of August 26, 2014. Adkisson claimed that she in no way provoked the attack. In addition, Adkisson testified about a previous incident where Parks- assaulted her. Adkisson stated that she had lived in Parks’s guest bedroom for a period of time. About two weeks after she moved out, Adkisson said she was collecting the remainder of her stuff from Parks’s home when he took her phone, dragged her into his bedroom, choked her, ripped off. her pants, and repeatedly smothered her with a pillow. Adkisson stated that Parks did not sexually assault her during the incident. ■ Adkisson further, testified that the incident lasted seventeen hours and that she never told the police because Parks threatened to harm her family, burn down her house,, kill her animals, kill her, and then kill himself.

¶ 22. Adkisson admitted during questioning that she had previously been charged with and convicted of felony driving under the influence. Adkisson further admitted that, when she was younger, she had harmed herself by cutting her arms. In addition, Adkisson, admitted that she had tried to commit suicide when she was younger. As previously stated, following both Adkisson’s and Cannata’s testimony, the circuit court instructed the jury on the purposes for which the testimony had been offered.

¶ 23. After the State completed its casein-chief, Parks testified on his own behalf. During direct examination, Parks testified that Adkisson had done his laundry and cleaned his house when she lived with him. Parks further testified that the cocaine Officer Wallace found in his shirt pocket was not his and that he did not know how the cocaine came to. be in his shirt pocket. In response to questions asked during cross-examination, however, Parks testified that he told law enforcement, that Adkisson must have put the cocaine in his shirt pocket when she did his laundry.

¶ 24. As to the allegations made by Stringer, Parks stated that he did accompany Stringer to pick up Adkisson on the evening of August 26, 2014. Parks testified that Adkisson called him a. derogatory name, and he admitted that , he turned around in the front seat of Stringer’s car and hit Adkisson twice in the head .and grabbed Adkisson’s hair. According to Parks, he broke his right, hand—his dominant hand—when he hit Adkisson.

¶ 25. In addition to' admitting that he hit Adkisson on the evening of August 26, 2014, Parks admitted to the two past incidents involving Cannata. Parks admitted that, on each of the two occasions, he held Cannata overnight against her will. Parks corroborated Cannata’s testimony that the first incident occurred at his home in Biloxi and that he threatened Cannata with a knife. Parks further admitted that the second incident occurred at Cannata’s home in Las Vegas and involved him cutting Cannata with a pair of scissors. .

¶ 26. Despite admitting to his past acts against Cannata, Parks denied that he assaulted Adkisson when she was moving out of his house. In addition, Parks repeatedly denied Stringer’s allegations of .sexual-battery, aggravated assault, and kidnapping. With regard to Stringer’s allegations, Parks testified that he never poked Stringer with a broken golf club or cut her with a knife. Parks further- stated that he had never before seen the knife that law enforcement found in his home. In addition-, Parks testified that-Stringer was free at all times to come and-go from his house as she pleased.

¶ 27. Following the altercation -with Ad-kisson in Stringer’s car, Parks said that he exited the car and began to walk back to his house. He stated that he eventually hailed a taxi. Parks further testified that, by the time he. arriyed back at -his house, Stringer was already there. Parks said that- he heard a noise in the bedroom and walked in:to find that Stringer had cut herself on the arms. Parks said that he also observed a glass pipe and a needle in the bedroom and knew that Stringer had a “habit.” Parks testified that, after he walked into -the .bedroom, Stringer stuck him in the hand, leg, and toe with the knife she was holding. According to Parks, he saw cuts on Stringer’s arms, legs, and back before she headed to the hospital. Parks testified that Stringer asked whether he wanted to accompany her to the hospital; however, Parks said he told Stringer that he would go to the hospital later.

¶ 28. The jury found Parks guilty of all five counts charged in his indictment. The circuit court then ordered Parks to serve the following sentences, all in the custody of the Mississippi Department of Corrections: (!) thirty years for Count I, sexual battery; (2) thirty years for Count II, sexual battery; (3) twenty years for Count III, aggravated assault; (4) thirty years for Count IV, kidnapping; and (5) three years for Count V, possession of a controlled substance. The circuit court further ordered the sentences in Counts I and II to run consecutively to one another .and the sentences in Counts III, IV, and V to run concurrently with one another and concurrently with the sentences in Counts' I and II.

¶ 29. Following his convictions and sentences, Parks filed an unsuccessful motion for a new trial or, in the -alternative, a judgment notwithstanding the verdict. Aggrieved, Parks now appeals his convictions and sentences to this Court. Parks’s attorney from the public defender’s office filed an. appellate brief raising several claims of error, and Parks filed his own supplemental brief asserting additional issues. In our review, we address the claims of error raised by both Parks and his attorney on appeal.

DISCUSSION

I. Motion to Dismiss the Indictment

¶30. The appellate courts apply de novo review to a trial court’s grant or denial of a motion to dismiss. Spencer v. State, 880 So.2d 1044, 1045 (¶ 6) (Miss. 2004). Here, Parks alleges that the circuit court should have dismissed his indictment because he was never personally served a copy. However, the record refutes Parks’s assertions.

¶,31. In pertinent part, Mississippi Code Annotated section 99-7-9 (Rev. 2016) states, “After the arrest of the person indicted, and prior to arraignment, a copy of the indictment shall be served on such person.” The record reflects that Parks was indicted on. March 23, 2015, and that on April 1, 2015, his attorney, Charlie Stewart, received service of the indictment on. Parks’s behalf. In addition, Parks admitted during the pretrial motion hearing on May 4, 2015, that the circuit-court clerk sent him a copy of his indictment after he requested the copy. The record also contains a copy of a letter Parks mailed to the circuit-court clerk, which was filed on April 30, 2015, in which Parks stated that he had received the requested copy of his indictment, Furthermore, in response to Parks’s request during the- May 4, 2015 hearing, the circuit court arraigned Parks, and Parks had his .indictment read to him .in open court before entering his plea-to. each count of his indictment. ¡

' ¶ 32. Thus, upon review of this issue, we find the record fails to support Parks’s assertions that he never received personal service of -a copy of -his indictment. We therefore find' no merit to Parks's argument that the circuit court erred by denying his motion to dismiss his indictment.

II. Arraignment

¶33. In his appellate brief, Parks also appears to assert for the first time that .he was not arraigned within thirty days of receiving his indictment. Rule 8.01 of the Uniform Rules of Circuit and County Court provides that “[arraignment, unless waived by the defendant, shall be held within thirty (30) days after the defendant is served with the indictment. ... Arraignment is deemed waived when the defendant proceeds to trial without objection.”

¶ 34. As previously discussed, Parks’s attorney received service of the indictment on April 1, 2015. At the May 4, 2015 hearing, the circuit court noted that Parks had originally signed a, waiver for his-arraignment but had since decided- to withdraw the waiver. Indeed, the record before us reflects that, in a letter filed with the circuit-court clerk on April 30, 2015, Parks informed the circuit court that he wished to formally withdraw, his waiyer of his arraignment. As a result, of Parks’s withdrawal of his waiyer, the circuit court arraigned Parks during the May 4, 2015 hearing. In addition, the record reflects that Parks never raised an objection before the circuit court as to the timing of his arraignment. As a result, we find no merit to Parks’s assertions for the first time on appeal.

. III. Right to a Speedy Trial

¶ 35. Parks also asserts that his constitutional right to a speedy trial was violated. Parks’s “claim encompasses a fact question of whether the trial delay rose from good cause.” Rowsey v. State, 188 So.3d 486, 493 (¶ 18) (Miss. 2015) (citation omitted). We uphold the trial court’s decision when based on substantial credible evidence. Id. However, “[i]f no probative evidence supports the trial court’s finding of good cause, [the appellate] [c]ourt will ordinarily reverse.” Id (citation omitted).

¶36. “The speedy-trial right attaches when ' an individual is accused.” Harris v. State, 174 So.3d 314, 318 (¶ 16) (Miss. Ct. App. 2015) (citation omitted). In addition to the constitutional right to a speedy trial, “Mississippi ... guarantees a statutory' right to a speedy trial, which requires [that] an accused be brought to trial within 270 days of arraignment unless there is a showing of good cause.” Id. (citation and internal quotation marks omitted). To analyze a speedy-trial claim, we must consider the following factors, which we apply on a case-by-case basis: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

A. Length of the Delay

¶ 37. “For speédy-trial purposes, a delay of eight (8) months or more is presumptively prejudicial.” Harris, 174 So.3d at 318 (¶ 19) (citation omitted). Parks was arrested on August 27, 2014. Almost eleven months later, at the September 22, 2015 pretrial hearing, the circuit court heard Parks’s motion to dismiss for lack of a speedy trial. Because this delay was over eight months, a presumption of prejudice arose. We must therefore consider the remaining three factors to determine whether the delay violated Parks’s right to a speedy trial. See id. at 319 (¶ 19).

B. Reason for the Delay

¶ 38. “When the delay is presumptively prejudicial, the burden shifts to the State to show cause for the delay. This requires that we decide if the delay should be charged to the State or [the] defendant.” Id. at (¶20)-(internal citation,omitted). In ruling on Parks’s speedy-trial motion, the circuit court found that Parks was arraigned on May 4, 2015, and that his trial was then originally scheduled for less than three months later on July 27, 2015. The circuit court stated that, “given the heavy docket in this district, ... the multiple counts against [Parks], the workload of the public defender’s office, and ... Stewart’s involve[ment] with other clients, this [original] trial date was not unreasonable.” In addition, the circuit court noted that Parks neither requested an earlier trial date nor objected to his initial trial date;

¶ 39. The circuit court next found that Parks’s trial was rescheduled due to a pro se motion that Parks filed on June 29, 2015, about a month before his trial. In his pro se motion, Parks sought to discharge Stewart and to be appointed new counsel. The circuit court found that Parks’s motion was heard on July 28, 2015, the day after his initial trial date, at which time the circuit court denied the motion. According to the circuit court’s findings, even if Stewart had been discharged at the time Parks filed the motion on June 29, 2015, insufficient time would have existed for substitute counsel to be appointed and to adequately prepare for trial the next month on July 27, 2015..

¶ 40. The circuit court further found that the delay between Parks’s arrest and his first trial date on July 27, 2015, was not so lengthy or prejudicial as to require dismissal. The circuit court also concluded that the additional delay in Parks’s trial was attributable to Parks’s pro se filing seeking the appointment of new counsel. In addition, the circuit court found that, at the July 28, 2015 hearing on Parks’s motion for new appointed counsel, no objection was made to the rescheduling of the trial. Based on its findings, the circuit court concluded the delay in Parks’s trial was not unreasonable. The circuit court therefore determined that this factor weighed against Parks.

C. Parks’s . Assertion of His Right

¶41. The circuit court acknowledged that Parks had asserted his right to a speedy trial on multiple occasions. The circuit court therefore concluded that this factor weighed in Parks’s favor.

D. Prejudice to Parks

¶ 42. In Hams, this Court stated:

Under Barker's prejudice prong, the three relevant'interests are “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.”. Of these three, the most serious is the final one, since a defendant’s inability to adequately prepare his case “skews the fairness of the entire system.”

Harris, 174 So.3d at 320 (¶ 28) (quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182).

¶43. On appeal, Parks claims that he has suffered prejudice under all three relevant interests of this prong. He contends that his pretrial detention was oppressive; that he has suffered from anxiety and experienced weight loss; and that his incarceration prevented him from collecting evidence for his trial.

¶ 44. In Harris, this Court recognized that, though the defendant’s “pretrial incarceration was no doubt lengthy, [his] ‘incarceration alone does not constitute prejudice.’ ” Id. at (¶29) (quoting Johnson v. State, 68 So.3d 1239, 1245 (¶ 17) (Miss. 2011)). As to Parks’s claim of anxiety and weight loss, this. Court also noted in Harris that, “for this prong to favor any defendant, evidence of legitimate anxiety and concern (medical records, documentation from the jail, etc.) must exist.” Id. at (¶ 30) (quoting Johnson, 68 So.3d at 1245 (¶ 17)). However, in the present case, Parks fails to present any evidence to support his claim of anxiety-based prejudice, and we decline to “speculate about the nature of his supposed anxiety.” Id. We therefore turn our focus to Parks’s assertion that his incarceration impaired his defense.

¶ 45. The possibility that a delay in Parks’s trial impaired his ability to adequately prepare his case is the most .important concern in our determination of whether Parks suffered prejudice. See id.at (¶ 31). “Generally, proof of prejudice beyond incarceration may include such matters as the loss of evidence, death of witnesses, or staleness of the investigation.” Id. (quoting Moore v. State, 837 So.2d 794, 799 (¶ 13) (Miss. Ct. App. 2003)). Although Parks alleges that his incarceration prevented him from collecting evidence for his trial, the circuit court' found no merit to the claim. In addressing Parks’s contention, the circuit court stated:

The main thrust of [Parks’s] argument was that[,] because he was in jail, ... he’s been prevented from obtaining evidence from his home and getting some video evidence from a gas station here in Biloxi. The difficulty the court sees here is that [Parks] is bringing these issues pro se while he is represented by counsel, and these issues are brought somewhat outside of [his] counsel’s trial strategy.

¶ 46. The circuit court also found Parks’s claims of lost evidence were speculative. According to the circuit court, Parks failed to support -his contention that evidence from his home disappeared during his incarceration. The circuit court stated that Parks also failed to offer any “evidence to support the claim that there was indeed some type of evidence .,. which would be exculpatory ... or which would be useful in his trial .... ” Because the record before us reflects that Parks failed to offer any evidence to prove his assertions of an impaired defense; we find this factor weighs against Parks.

¶ 47. After considering each of the relevant factors, the circuit court concluded under the totality of the circumstances that Parks suffered no deprivation of his constitutional or statutory right to a speedy trial. Upon review, we find the record contains substantial credible evidence to support the circuit court’s decision and its subsequent, denial of Parks’s motion-to dismiss for lack of a speedy trial. See Rowsey, 188 So.3d at 493 (¶ 18). As discussed, the record reflects that Parks never objected to his initial trial date, and the additional delay in his. trial was attributable to, his pro se motion to replace his trial counsel. In addition, Parks failed to show that the delay in his trial prejudiced him. We therefore find that this assignment of error lacks merit. .

IV. Motion for New Appointed Counsel

¶ 48. Parks also asserts; on appeal that the circuit court erred by denying his motion to appoint new counsel. As our caselaw acknowledges, '“[a]n accused has the right to effective counsel but not to appointed counsel strictly of his own choosing. When a defendant seeks to have his appointed counsel removed, the sound discretion of the trial judge is invoked.” Wilson v. State, 821 So.2d 911, 914 (¶ 10) (Miss. Ct. App. 2002) (internal citations omitted).

¶ 49. During the pretrial hearing on his motion for new appointed counsel, Parks alleged that his attorney, Stewart, had failed to sufficiently communicate with him about his case. Parks further' asserted that Stewart had not subpoenaed certain individuals or requested certain business records like Parks had asked. Without revealing his trial strategy or any privileged information, Stewart informed the circuit court that he had visited and communicated with Parks about the case. Stewart also explained that he had previously discussed with Parks any issues related to Parks’s requests for subpoenas- and business information.

¶ 50. Stewart acknowledged that Parks had filed several bar complaints against him. He also stated that Parks “typically [did not] want to hear [his] thoughts” on the issues because he and Parks disagreed. Despite the differences in opinion and the bar-complaint filings, Stewart informed the circuit court-of'his belief that nothing had transpired to require his removal from the case. Stewart stated that he had “dealt with individuals in this situation many, many times.” Stewart further explained that he knew Parks’s case, had discussed the case and its issues with Parks, and had given Parks all the discovery he had received from the State. After hearing from both Parks and Stewart, the circuit court found that Stewart was a , competent attorney who had done nothing detrimental to Parks’s case. As a result, the circuit court denied Parks’s motion, to appoint new counsel.

¶51. Upon review, we find no abuse of discretion in the circuit court’s denial of Parks’s motion. See Wilson, 821 So.2d at 914 (¶ 10). The record reflects that the circuit court considered the facts and arguments presented before finding that Parks suffered no prejudice by proceeding to trial with Stewart as his appointed attorney. Although the record reflects that Stewart and Parks disagreed over trial strategy, our caselaw clearly establishes that trial strategy is left to the attorney’s sound discretion, See Nichols v. State, 27 So.3d 433, 443 (¶ 36) (Miss. Ct. App. 2009). Based on a review of the record and relevant caselaw, we find no merit to Parks’s argument regarding this issue.,

V. Motion to Suppress

¶ 52, Prior to trial, Parks moved to suppress the evidence collected by law enforcement after they obtained a search warrant. Parks contends on appeal that officers conducted an illegal safety search incident to his arrest, and he argues that any evidence subsequently collected constituted fruit of the poisonous tree. As a result, Parks asserts, that the circuit court erred by denying his motion to suppress the evidence.

¶ 53. “In reviewing the denial of a motion to suppress,' [the appellate court] must determine whether the trial court’s findings, considering the totality' of the circumstances, are supported by substantial credible evidence. Where supported by substantial credible evidence, [the appellate court] shall not disturb those findings.” Moore v. State, 933 So.2d 910, 914 (¶ 9) (Miss. 2006) (internal citations omitted). “The standard of review for the admission or suppression of evidence is abuse of discretion.” Green v. State, 183 So.3d 78, 80 (¶ 3) (Miss. Ct. App. 2015) (citation omitted).

¶ 54. “The Fourth Amendment protects ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’” Id. at (¶ 4) (quoting U.S. Const. amend. IV). “As a general rule, Warrantless searches of private property are per se unreasonable.” Jordan v. State, 995 So.2d 94, 107 (¶ 37) (Miss. 2008) (citation omitted). However, “[a] warrantless search is permissible in certain exigent circumstances if it-- can be shown that grounds existed to conduct the search that, had time permitted, would have reasonably satisfied a disinterested magistrate that a warrant should properly issue.” Vaughn v. State, 972 So.2d 56, 61 (¶ 18) (Miss. Ct. App. 2008) (citation omitted).

¶55. In, the present: oase, the circuit court found during .the-pretrial suppression hearing that, almost contemporaneously with receiving Officer Warren’s report about Stringer’s - statement, law enforcement responded to Parks’s, home, The circuit court further found that, upon arriving at Parks’s home, officers encountered Parks in his front yard. Officer Wallace testified that he observed fresh blood on Parks, which the circuit court found indicative of a recent event. Officer Wallace further stated that, after securing Parks in front of his home, he and another officer conducted a safety sweep- of the residence while a third officer remained with Parks. Officer Wallace- testified that the sweep, which took less than two minutes, was to determine whether there was anyone else in the residence, such as victims, assailants, or those needing medical attention. Based upon the totality of the circumstances, the circuit court found the safety search, of Parks’s home was constitutionally permissible and was justified under the exigent-circumstances exception.

¶ 56. Because the evidence in the record contains substantial credible evidence to support the circuit court’s findings on this issue, we find no error in the circuit court’s ruling that the safety search was permissible due to exigent circumstances. See Michigan v. Fisher, 558 U.S. 45, 47-49, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (discussing the exigent-circumstances exception). We further find no abuse of discretion in the circuit court’s, denial of Parks’s motion to suppress the evidence discovered as a result of the search. Thus, this assignment of error lacks merit.

VI. Prior Bad Acts

¶ 57. Parks argues that the circuit court erred by admitting evidence of his prior bad acts. Parks asserts that Cannata’s and Adkisson’s testimony about his prior bad acts was inadmissible character evidence that unfairly prejudiced him. He therefore asks this Court to reverse his convictions and sentences and to remand the case for a new trial.

¶ 58. As previously stated, we review the circuit court’s admission of evidence for abuse of discretion. Stone v. State, 94 So.3d 1078, 1081 (¶ 9) (Miss. 2012). “Although a judge has broad discretion in admitting evidence, evidence of a crime other than the one for which the accused is being tried generally will not be admissible.” See Hargett v. State, 62 So.3d 950, 953 (¶ 8) (Miss. 2011) (citations omitted). Before admitting any evidence of a defendant’s prior bad acts, the circuit court must find (1) the evidence is offered for a permissible purpose under Rule 404(b) of the Mississippi Rules of Evidence, and (2) the evidence’s probative value outweighs its prejudicial effect under Rule 403 of the Mississippi Rules of Evidence. Welde v. State, 3 So.3d 113, 117 (¶ 15) (Miss. 2009).

¶ 59. Prior-bad-acts evidence is inadmissible to prove the defendant’s character to show that he acted in conformity therewith. M.R.E. 404(b)(1). However, such evidence may be admissible if offered for some other permissible purpose, such as proof of the defendant’s.“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” M.R.E. 404(b)(2); see also Welde, 3 So.3d at 117 (¶ 15) (discussing the two-pronged test for determining whether prior-bad-acts evidence is admissible under Rules 403 and 404(b)).

¶ 60. In the present case, the State made a pretrial motion pursuant to Rule 404(b) to admit Cannata’s and Adkisson’s testimony about Parks’s prior bad acts. The State sought to admit Cannata’s and Adkisson’s testimony about several different incidents where Parks held the women against their will, assaulted them, and threatened them. Upon hearing arguments.on the motion, the circuit court found that the State sought to admit the evidence for the specific purposes of showing Parks’s motive, intent, and modus operandi. In discussing the State’s motion, the circuit court found the State only wished to introduce the evidence for these three limited purposes and was not trying to use a “shotgun approach” to admit the evidence. The circuit court further stated that, although Rule 404(b) fails to specifically list modus operandi as an exception, this was “a legitimate and judicially recognized purpose.” See Fisher v. State, 532 So.2d 992, 999-1000 (Miss. 1988) (holding that evidence of the defendant’s modus operandi was admissible under Rule 404(b)).

¶ 61. The circuit court found that the State’s proffered evidence alleged that Parks was at one time friends with the reported victims, who were both female. The proffered evidence further provided that Parks held the women against their will at a time when the women were alone with Parks. The evidence showed that Parks physically assaulted the women by using his hands and feet and that he did not allow the women to leave the place where the assault occurred. Furthermore, the circuit court found the proffered evidence tended to show that, if sexual abuse occurred, it occurred by force, and if no such abuse occurred, it was an acquiescence by Parks due to the fear of the alleged victim, The circuit court also found the evidence showed that Parks used a knife or other sharp object to threaten or harm his victims. Based on these similarities, the circuit court found that the facts were substantially similar in each incident. The circuit court further determined that the evidence was admissible under Rule 404(b) to show Parks’s motive, intent, and modus operand!

¶ 62. After finding the evidence was admissible under Rule 404(b), the circuit court next considered whether, under Rule 403, the evidence’s probative value substantially outweighed the danger of unfair prejudice to Parks. The circuit court stated:

Based upon the ... proffer I’ve heard, the court does not find this evidence to be substantially outweighed by the danger of unfair prejudice. In fact, the similarities of these cases in my mind [do] not create any unfair prejudice, but provide[ ] relevant admissible evidence, both under [Rules] 404(b) and 403, and the court will allow that [Rule] 404(b) testimony - that I’ve heard by way of proffer into the record, and [the court] will provide, without it being asked for, a proper limiting instruction to the jury.

¶ 63. The record reflects that the circuit court followed the proper two-pronged analysis to determine whether the evidence was “relevant to prove a material issue other than the defendant’s character” and whether the evidence’s “probative value ... outweigh[ed] the prejudicial effect.” Welde, 3 So.3d at 117 (¶ 15) (citation omitted). Because the circuit court considered the evidence’s admissibility under Rule 404(b) and then filtered the evidence through Rule 403’s balancing test, we find no abuse of discretion by the circuit court’s decision to admit the evidence. As a result, this issue lacks merit.

VIL Right to a Public Trial

¶ 64. “The Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution guarantee a defendant the right to a public trial.” Lewis v. State, 140 So.3d 1290, 1293-94 (¶ 13) (Miss. Ct. App. 2014). Parks claims his right to a public trial was violated when his friend, Amber Andrews, was escorted out of the courtroom. However, the record fails to support Parks’s assertions underlying this assignment of error.

¶ 65. During Parks’s trial, the circuit court conducted a hearing outside the jury’s presence that included the following discussion:

The Court: [S]heriffs, do you all know who that person was that came through the courtroom and created the disturbance ... ?
Deputy John Kelly: After I got her out the door[,] she claimed that she’s known [Parks] for a while[,] and she didn’t appreciate what he is going through. She was trying to speak to his attorney.
The Court: Do you anticipate her coming back, wanting to come back to the - courtroom?
Mr. Damion Reese: Judge, she’s been advised by me not to come in the courtroom. She said her name was Amber. She said she is a friend of ... Parks. She said she read • and saw some stuff in the paper[,] and it disturbed her[,] and she said that .... Parks wasn’t like that. I advised her ,.., after the sheriff had advised her, that she could not be disrupting the courtroom. She did say she wanted to speak with'. Mr. Stewart[,'Parks’s at> torney]. I told her she had to wait out there[,] and ... she wanted to leave her number. I said[,] if you did, he probably wouldn’t be able to call you until after trial. So if you wanted to have a seat, at some break or point' in time[,] he may be able to speak to you, I don’t know. But she is not coming back in the courtroom.
The Court: The court’s observation was that she walked' down the aisle of the courtroom with stride and strut that was disruptive to me, and I suspect to the ... jurors, and when I made eye contact with her, she waved at me like I knew who she was[,] and she was trying to make contact with defense counsel, and [she] moved about the courtroom rather disruptively. And I think [she] moved a time or two again before she voluntarily left and was escorted finally out by some security. So I think she was disruptive, and I want the record to reflect that. In the instance you see her and she, wants to come back in, she is to remain outfside] until I can have a- word with her outside the presence of the jury. As it relates to her involvement and .wanting to discuss anything with [the] defense, that’s as between them.

¶ 66. Thus, the record reflects that Andrews was not kicked out of the court’ room as Parks now contends but that she left of her own accord after creating a disruption. Furthermore, the record fails to reflect.that the circuit .court excluded any member of the public, including Andrews, from attending Parks’s trial. As our precedent recognizes, “[t]he term ‘public trial’ contemplated by our Federal and State Constitutions is a trial [that] is not secret and one that the-public is free to attend. To a great extent[,] it is a relative term[,] and its meaning depends largely on the circumstances of each particular- case.” Norwood v. State, 258 So.2d 756, 763 (Miss. 1972) (citation omitted), Furthermore, the Mississippi Supreme Court has held that the exclusion of one person from the courtroom does not violate the' defendant’s right to a public trial, Young v. State, 352 So.2d 815, 818 (Miss. 1977). The record here fails to -support Parks’s contention that the circuit court denied him a public trial. We therefore find that this argument lacks merit.

VIII. Ineffective Assistance of Counsel

¶ 67, Parks also argues that his attorney rendered ineffective assistance of counsel. To prevail on his claim of ineffective assistance of .counsel, Parks must show that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 68. Parks’s assertions surround his attorney’s alleged failure to interview or to call a potential defense witness. However, Parks-fails to show what, if any, relevant testimony the potential witness could have offered in his case; In addition,'Parks fails to show that his- attorney; • Stewart, rendered a deficient performance or that he, Parks, was prejudiced by any such alleged deficiency. As a result, we find that Parks fails to meet either prong of the Strieklmd test. This issue therefore lacks merit. •

IX, Prosecutorial Misconduct

¶ 69. Parks’s argument in support of this assignment of error pertains to the State’s closing argument. Parks contends that the State- exceeded the facts in evidence, and he argues the State’s closing was inflammatory. However, Parks did not raise any objection to the State’s closing argument at trial. As a result, this issue is procedurally barred and is not properly before this Court for review. See Pruitt v. State, 122 So.3d 806, 809 (¶ 10) (Miss. Ct. App. 2013) (stating that the failure to raise a contemporaneous objection waives an'issue for appeal). We therefore decline to address this issue.

X. Jury Instruction S-6

¶ 70. Parks further asserts that the circuit court erred by granting jury instruction S-6. Instruction S-6 stated, “The [e]ourt instructs the jury that the uncorroborated testimony of a sex-crime victim is sufficient to support a conviction if accepted as true by the finder of fact.” We review the circuit court’s grant of a proposed jury instruction for abuse of discretion. Quinn v. State, 191 So.3d 1227, 1231-32 (¶ 18) (Miss. 2016). In addition, we review the jury instructions as a whole, and where they “fairly announce the law of the case and create no injustice,” we will find no reversible error. Id. at 1232 (¶ 18) (citation omitted).

¶ 71. Here, jury instruction S-6 did not comment on the weight of the evidence or tell the jury how to weigh the credibility of Stringer’s testimony. Nor did the instruction mention any aspect of Stringer’s testimony relative to a determination of credibility. Compare Bester v. State, 212 Miss. 641, 646, 55 So.2d 379, 380 (1951) (finding that a granted jury instruction was objectionable because the instruction- commented on the weight of the evidence and singled out and gave undue emphasis and prominence to certain portions of a wit-ness’s testimony). Instead, instruction S-6, simply conveyed to the jury that, if they found Stringer’s testimony- true, even if no corroborating evidence existed, they could find that the testimony supported Parks’s conviction. See Lee v. State, 242 Miss. 97, 106, 134 So.2d 145, 149 (1961) (stating that a rape victim’s evidence was sufficient to sustain a conviction without corroboration where the testimony was “consistent with the surrounding circumstances and conditions shown by the evidence” (citations omitted)). -Furthermore, jury instructions S-1 and S-2 informed the jury that they were to consider the evidence to determine whether the State proved that Parks committed the crimes charged beyond a reasonable doubt.

¶ 72. Based upon a review of the record and Mississippi , precedent, we find no abuse of discretion in the circuit court’s grant of jury instruction S-6. As a result, we find this assignment of error lacks merit.

XI. Request for an Appeal Bond

¶73. Parks next argues that the circuit court erred by denying his request for an appeal bond. In November 2015, Parks, first sought release pending the outcome of his appeal. The circuit court denied Parks’s request on November 20, 2015, As required by statute, the circuit court placed in the record its reasons for denying Parks’s appeal bond. See Miss. Code Ann. § 99-35-115(2)(b) (Rev. 2015). In its order, the circuit, court stated the following:

Parks has not shown by clear and convincing evidence that his release “would not constitute a special danger to any other person or to the community ... and that a condition or a combination of conditions' may be placed on release that will reasonably assure [his] appearance ... as required. ...” Further,-at his sentencing hearing, the. [c]ourt determined that Parks is a special danger to the victim in this case. Moreover, the peculiar circumstances of the extremely violent nature of this case, in this [c]ourt’s opinion, render postconviction bail wholly inappropriate.

(Quoting Miss. Code Ann. § 99-35-115(2)(a) (Rev. 2015)).

¶74. This Court reviews a trial court’s denial of an appeal bond for abuse of discretion. Woods v. State, 965 So.2d 725, 731 (¶ 18) (Miss. Ct. App. 2007). Here, the circuit court followed the statutory requirements of section 99-35-115 in evaluating Parks’s request for an appeal bond. The circuit court found that Parks failed to prove that his release would not constitute a special danger to another person or to the community. In addition, the circuit court noted its previous finding that Parks represented a special danger to Stringer. The record supports the circuit court’s findings, and we therefore find no abuse of discretion. Thus, this assignment of error lacks merit.

¶ 75. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, OF CONVICTION OF COUNT I, SEXUAL BATTERY, AND SENTENCE OF THIRTY YEARS; COUNT II, SEXUAL BATTERY, AND SENTENCE OF THIRTY YEARS; COUNT III, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS; COUNT IV, KIDNAPPING, AND SENTENCE OF THIRTY YEARS; AND COUNT V, POSSESSION OF A CONTROLLED SUBSTANCE, AND SENTENCE OF THREE YEARS; WITH THE SENTENCES IN COUNTS I AND II TO RUN CONSECUTIVELY TO ONE ANOTHER, AND WITH THE SENTENCES IN COUNTS III, IV, AND V TO RUN CONCURRENTLY WITH ONE ANOTHER AND CONCURRENTLY WITH THE SENTENCES IN COUNTS I AND II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . See Miss. Code Ann. § 41-29-139(c)(1) (Rev. 2013); Miss. Code Ann. § 97-3-7(2)(a) (Rev. 2014); Miss. Code Ann. § 97-3-53 (Rev. 2014); Miss. Code Ann. § 97-3-95(1)(a) (Rev. 2014).

      .- The Indigent Appeals Division of the Office of State Public Defender filed an appellate brief on Paries’s behalf. Parks also filed his own supplemental appellate brief asserting additional issues,


source: Caselaw Access Project

author: GRIFFIS, P.J., CARLTON, J„

license: Public Domain

text:
    Kenny STEWART a/k/a Kenny Cordell Stewart, Appellant v. STATE of Mississippi, Appellee
    NO. 2014-KA-01520-COA
    Court of Appeals of Mississippi.
    02/07/2017
    Rehearing Denied June 27, 2017

      OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN, GEORGE T. HOLMES, AAFRAM YAPHET SELLERS, ATTORNEYS FOR APPELLANT

      OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLE-BEN,. JASON L. DAVIS, ATTORNEYS FOR APPELLEE
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. Kenny Stewart appeals his conviction of sexual battery and molestation; Based on the facts of this case, we find molestation is a lesser-included offense of and merges with sexual battery. Therefore, we affirm in part, and reverse and render in part.

FACTS AND PROCEDURAL HISTORY

¶2. On August 2, 2013, Monica Lewis went to work and left her children at home with Stewart, her boyfriend. Shortly after she arrived at work, Lewis noticed a stain on her clothes and returned home to change.. When she got home, Lewis realized her nine-year-old daughter, M.L., was not in her bedroom, As a result, Lewis went to the bedroom she shared with Stewart and saw that the door was closed. When Lewis opened the door and turned on the light, she discovered M.L. in bed with Stewart. Specifically, M.L, was in the bed, on her back, with her hands behind her head. Stewart was in the bed, on his stomach, with his head between M.L.’s legs.

¶ 3. Stewart was indicted on Count I, sexual battery, and Count II, molestation. A jury trial was held during which M.L., Lewis, and an investigator with the Vicksburg Police Department testified. M.L. testified that on the morning in question, she went into her mother’s bedroom to look for a remote control. She found the remote and took it back to her bedroom. Later, M.L, returned to her mother’s bedroom to help Stewart look for a video-game accessory. Stewart asked M.L. to look on the bed under the pillow for the accessory. When she did not find it, Stewart asked M.L. to lie on her back in the bed and to take off her underwear. M.L. testified she could not see Stewart because he was under the covers, but felt Stewart’s tongue on her vagina and also felt his tongue inside of her vagina.

¶ 4. At the close of the State’s case-in-chief, Stewart moved for a directed verdict, which the circuit court denied. Stewart then rested. The jury returned a verdict of guilty on both counts. As to Count I, sexual battery, Stewart was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections, with twenty years to serve, five years suspended, followed by five years of post-release supervision. As to Count II, molestation, Stewart was sentenced to seven years - in the custody of the Mississippi Department of Corrections, with two years to serve, five years suspended, followed by five years of post-release supervision. The circuit court ordered the sentences to run consecutively, and further ordered Stewart to register as a sex offender upon release.

¶ 5. Stewart filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied. On appeal,. Stewart argues: (1) the indictment failed to allege sufficient facts to put him on notice of the charges against him and to protect him from double jeopardy, and (2) the circuit court erred in failing to. dismiss Count II of the indictment.

ANALYSIS

I. Whether the indictment failed to allege sufficient facts to put Steivart on notice of the charges against him and to protect him from double jeopardy,

¶ 6. Stewart asserts the indictment against him was insufficient “because it failed to allege specific facts to fairly inform him of the charges against which he must defend, and it lacked specific facts to enable him to plead double jeopardy in a future prosecution.” Stewart raises this issue for the first time on appeal. However, his failure to challenge the sufficiency of the indictment at the. circuit-court level does not bar us from considering the issue on appeal. See Williams v. State, 169 So.3d 932, 935 (¶ 8) (Miss. Ct. App. 2014) (“[I]t is settled that objections to the sufficiency of an indictment may be raised for the first time on appeal.”).

¶7. The legal sufficiency of an indictment is reviewed de novo. Id. at (¶ 7). The purpose of an indictment is

to inform the defendant with some measure of certainty as to the nature of the charges brought against him so that he may have a reasonable opportunity to prepare an effective defense and to enable him to effectively assert his constitutional right against double jeopardy in the event of a future prosecution for the same offense.

Moses v. State, 795 So.2d 569, 571 (¶ 13) (Miss. Ct. App. 2001).

¶ 8. Count I of the indictment is entitled “Sexual Battery Victim Under Age 14” and alleges Stewart:

[O]n or about August 2, 2013, in the County aforesaid, and within the jurisdiction of [the circuit c]ourt did willfully, unlawfully and feloniously engage in sexual penetration with a child[,] M.L.[,] who was under the age of 14 years, whose-date of birth was September 9, 2003[,] and who was twenty-four (24) or more months younger than said defendant[,] whose date of birth was September 16, 1984, in violation of Mississippi [Code Annotated section] 97-3-95(1)(d) [ (Rev. 2006) ], contrary to the statute in such cases made and provided, and against the peace and. .dignity of the State of Mississippi. - - ,

Count II-of the indictment is entitled “Molesting” and alleges Stewart:

[O]n or about August 2, in the’County aforesaid, and within the jurisdiction of [the circuit c]ourt.did willfully,.unlawfully, and feloniously, being a person above the age of eighteen (18) years, for .the purpose of gratifying his lust or indulging his depraved, licentious sexual desires, did handle, touch or rub with- -his hands or other parts of his body or some member thereof M.L., a child under sixteen (16) years of age, in violation of [Mississippi - Code Annotated s]ection 97-5-23 [ (Rev. 2006) ], contrary to the statute in such cases made and provided, and against the peace and dignity of the State of-Mississippi.

¶9. The indictment specifies each offense and ’corresponding statute, provides the date and location of each offense, identifies the victim and the -ages of the victim and the defendant, and notes that the acts. were, committed willfully, unlawfully, and feloniously. We find the indictment provided sufficient facts to notify Stewart of the charges against him and to enable him to plead double jeopardy in-the event of a future prosecution for the same offense. . .

II. Whether the circuit court erred in failing to dismiss Count II of the indictment.

¶ 10. Stewart next asserts the circuit court erred in failing to dismiss. Count II of. the indictment since there was no evidence to support a separate act of molesta-: tion. Stewart argues “[b]ecause [molestation] is a lesser-included offense of sexual battery, and because there was no testimony that [he] committed any other act of touching, the molesting, charge merges with the sexual battery charge.” Stewart claims his separate convictions of sexual battery and molestation amount to multiple punishments for the same offense, in violation of his constitutional right against double jeopardy.

¶ 11. “We apply a de novo standard of review to claims of double jeopardy.” Woods v. State, 30 So.3d 362, 365 (¶ 8) (Miss. Ct. App. 2009) (citation omitted). “The constitutional protection at issue, commonly known as the double-jeopardy clause, is enforceable against the states through the Fourteenth Amendment.” Id. “Its protection prohibits, inter alia, multiple punishments for the same offense.” Id. “[W]here sufficient evidence exits to support- separate and distinct acts of fondling and sexual battery, separate indictable charges can properly stand- -without implicating jeopardy issues ... even if the criminal acts are closely connected or based op a common nucleus of fact[.]” Faulkner v. State, 109 So.3d 142, 148 (¶ 21) (Miss. Ct. App. 2013).

¶ 12. Under Mississippi law, sexual battery and molestation are separate and distinct criminal offenses. However, “molestation may be a lesser-included offense to some types of sexual battery.” Friley v. State, 879 So.2d 1031, 1034 (¶ 12) (Miss. 2004). In Friley, the nine-year-old victim was swimming in her grandmother’s pool when Friley “cornered her, placed a plastic bag in front of her face, put his hand in the bottom of her swimsuit, and inserted his finger into her vagina.” Id. at 1032 (¶ 2). Friley was indicted on the charge of sexual battery, but was ultimately convicted of molestation. Id. at 1032-33 (¶ 4). On' appeal, the Mississippi Supreme Court upheld Friley’s conviction and found that, ünder certain circumstances, “[w]here penetration has been achieved by touching a child under the age of 14, molestation is a lesser-included offense of sexual battery.” Id. at 1035 (¶ 18).

¶ 13. At trial, M.L: testified as follows:

Q. So did you feel his tongue on your vagina?
A. Yes.-
Q. Okay. Did you ever feel his tongue inside of your vagina?
A. Yes.
Q. Did you feel his tongue moving at all?
A. Yes.

The State argues M.L’s testimony sufficiently established two separate offenses. We disagree. “The State simply may not obtain convictions on separate, independent multiple charges without offering separate and independent proof to sustain each charge.” Clemons v. State, 482 So.2d 1102, 1106 (Miss. 1985). While the testimony shows Stewart touched and penetrated M.L.’s vagina, there was no testimony the two acts .occurred separately. In other words, there is no evidence of a touching separate from Stewart’s penetration of M.L.’s vagina with his tongue. Thus, as in Friley, penetration was achieved by touching.

¶ 14. In an attempt to distinguish Friley, the State relies on Mosby v. State, 134 So.3d 850 (Miss. Ct. App. 2014), and Faulkner v. State, 109 So.3d 142 (Miss. Ct. App. 2013). However, each of these cases involves separate and distinct sexual acts. In Mosby, -the victim’s testimony established two distinct criminal acts “in that Mosby both fondled her breast and digitally penetrated her vagina.” Mosby, 134 So.3d at 857 (¶ 25). In Faulkner, Faulkner admitted he made A.F. touch his penis on numerous occasions and also claimed to have participated in a separate act of penetration by putting A.F.’s penis in his mouth. Faulkner, 109 So.3d at 148 (¶ 23).

¶ 15. The dissent correctly notes that under section 97-5-23, evidence of the unlawful touching of a child can be of any part of the child’s body as long as there is sufficient proof of the requisite lustful intent or licentious sexual desire. The dissent asserts the record reflects evidence that Stewart grabbed M.L’s arm to put her in the bed for his licentious sexual desires or his lustful intent. It is this act, the unlawful touching of M.L.’s arm, that the dissent claims supports a conviction of molestation.

¶ 16. The evidence on which the dissent relies is from M.L,’s statement to the Vicksburg Police Department. .On cross-examination, M.L. was shown a transcribed copy of the statement she made to the police. M.L. acknowledged that in her statement to the police, she stated Stewart “grabbed her by the arm and told her to get in the bed.”

¶ 17. At no point during the trial did the State claim Stewart molested M.L. by touching or grabbing her arm. Instead, the State’s position throughout the trial was that Stewart molested M.L. by touching her vagina. In response to Stewart’s motion for a directed verdict as to molestation, the State did not cite or reference the grabbing of M.L’s arm. Instead, the State relied on M.L.’s trial testimony that she felt Stewart’s tongue on her vagina. Additionally, during closing arguments to the jury, the State again relied on M.L.’s testimony that she felt Stewart’s tongue on her vagina as evidence of molestation. Moreover, on appeal, the State cites M.L’s testimony that she felt Stewart’s tongue on her vagina as- support for Stewart’s conviction of. molestation. Thus, -at every stage of litigation, the State has relied on M.L.’s testimony that she felt Stewart’s tongue on her vagina as evidence of molestation. .

¶ 18. Now, for the first time, the dissent seeks to create a new argument for the State, that being the unlawful touching of M.L.’s arm. Although Stewart was aware of M.L.’s statement to the police, Stewart was never given notice that such facts would be the basis of thé State’s molestation claim. More importantly, Stewart was never given the opportunity to defend such an allegation, as it was never raised at trial. Instead, the entirety of the State’s case was based on the theory that M.L. felt Stewart’s tongue on and inside her vagina. Thus, it is not reasonable to infer that Stewart was guilty of the unlawful touching of M.L.’s arm when no such allegation was submitted or even referenced to the jury.

¶ 19. Additionally, the verdict indicates the jury gave more weight and credibility to M.L.’s trial testimony, as opposed to' her statement to the police, since the jury found Stewart guilty of both molestation and sexual battery. Had the jury believed M.L.’s statement to the police, then there would be. no evidence to support, the charge of sexual battery since M.L. never told the police that she felt Stewart’s tongue inside of her vagina. Thus, although the dissent relies heavily on evidence.from M.L.’s ■ statement to the police, we find such reliance is misplaced.

¶ 20. We do not find sufficient evidence exists to support separate and distinct acts of molestation and sexual battery. Instead, as in Friley, the evidence shows. penetration was achieved by touching a child under the age of fourteen, Thus, based on the facts of this case, molestation is a lesser-included offense and merges with the sexual-battery charge, As a result, Stewart’s conviction of Count II, molestation, violates the. Double-Jeopardy Clause. Accordingly, the judgment of the Circuit Court of Warren County is affirmed as to Count I, sexual battery, but reversed and rendered as to. Count II, molestation.

¶ 21; THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SEXUAL BATTERY, AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF . THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWENTY YEARS TO SERVE, FIVE YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO REGISTER AS A SEX OFFENDER, IS AFFIRMED. THE JUDGMENT OF CONVICTION OF COUNT II, MOLESTATION, AND SENTENCE OF SEVEN YEARS, IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, FAIR, WILSON AND GÉEENLEE JJ., CONCUR. CARLTON, J„ CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. WESTBROOKS, J., NOT PARTICIPATING.

CARLTON, J„

CONCURRING IN' PART AND DISSENTING IN PART:

¶ 22.1 concur in part and dissent in part because I would affirm both of Stewart’s convictions and the judgment of the trial court. I concur with the majority in affirming Stewart’s conviction in Count'I of his indictment for the charge of sexual battery. I however dissent from the decision of the majority to reverse Stewart’s conviction for molestation of a child under the age of sixteen. See Miss. Code Ann. § 97-5-23 (Rev. 2014). The majority reverses and renders Stewart’s conviction in Count II of his indictment for molestation after finding insufficient evidence existed to support separate and distinct acts of molestation and sexual battery. The majority finds that Count II herein merged with Count I, and in so doing, the majority ignores the evidence in the record supporting Count II, This separate opinion addresses both the sufficiency of the .evidence supporting Count II, and the sufficiency of Count II of the indictment,

¶ 23. In his appellate brief, Stewart argues that no evidence exists to support a separate act of molestation, and he further asserts that Count II of his indictment, molestation,, should thex-efore merge with the sexual-battery charge in Count I. Like the majority, Stewart’s argument is misplaced-in that he fails to consider all of the evidence in the record submitted to the jury for consideration in determining ‘his guilt as to both counts. In this case, the standard of review that applies on appeal clearly requires that we review “a challenge to the sufficiency of the-evidence in the light most favorable to the State, giving the State the benefit of all favorable inferences reasonably drawn from the evidence.” Henley v. State, 136 So.3d 413, 415 (¶ 8) (Miss. 2014). Our standard of review requires that we review all of the evidence in the record, not just some of it, in the light most favorable to the State. We must reverse and render “[i]f the facts and inferences so considered point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty[.]” Id, at 415-16. (¶ 8). Moreover, Stewart’s indictment placed him on sufficient notice of the charge of violating section 97-5-23 because it alleged that he “did handle, touch[,] or rub with his hands” M.L.’s body in violation of the statute and with requisite intent.

¶ 24. The record reflects' that the jury was properly instructed on the applicable law as to the elements of the offenses charged in both Counts I and II. As stated, a review of all of the evidence in the record also reflects sufficient evidence to support Stewart’s convictions for both offenses charged, sexual battery and molestation. Regarding the evidence for the conviction for sexual battery, the testimony shows that M.L. was nine years old when these offenses occurred. M.L.’s testimony at trial reflects that Stewart penetrated M.L.’s vagina with his tongue. M.L. testified that she felt his tongue on and inside of her vagina, and she also testified that she felt Stewart’s tongue moving around.

¶ 25. The majority considers only a part of M.L.’s testimony.- However, M.L. also admitted on defense cross-examination that she told police that right before Stewart touched her vagina with his tongue, Stewart had also grabbed her arm and told her to get in the bed:

Q: Now, down here it says, Lieutenant Williams, asked you, “Okay. So when you went back in there, you sat on the floor and watched television. And then what happened?” And you say, “He grabbed me by the arm and told me to get in the bed,” right?
A: Yes.
Q: But before your' testimony was that you went into - the bedroom and watched TV; is that 'correct?
A: Yes.

The context of M.L.’s testimony at trial shows that she did not deny previously telling police officers that Stewart grabbed her' arm to put her in bed for sex, and her testimony further reflects M.L.’s affirmation that Stewart indeed grabbed her arm. The jury is permitted to draw any reasonable inferences from all the evidence presented in the case, Lambert v. State, 101 So.3d 1172, 1177 (¶ 17) (Miss. Ct. App. 2012). A review of the evidence in the record as a whole that was submitted for the jury’s consideration shows sufficient evidence of acts separate and distinct from the offense of sexual battery, wherein Stewart placed his tongue on and in M.L.’s Vagina.

‘¶ 26.'The majority’s claim that Stewart lacked sufficient’ notice of the offense charged in Count II is misplaced. “Our review of the legal sufficiency óf an indictment is 'an issue of law, and therefore is reviewed de novo.” Berry v. State, 996 So.2d 782, 785-86 (¶ 8) (Miss. 2008). The molestation charge in Count II of the indictment in this ease clearly provides that “for the purpose of gratifying his lust or indulging his depravéd, licentious sexual desires, [Stewart] did handle, touchl,] or rub with his hands oí other parts of his body some member thereof of M.L., a child under sixteen (16) years of age, in violation of ... [Mississippi Code Annotated] section 97-5-23.” (Emphasis added). Contrary to the assertion of the majority, I submit that Stewart’s indictment tracked the language, including the elements, of section 97-5-23, and also sufficiently placed him on notice that his action of grabbing M.L.’s arm to instruct her to get in the bed to have sex with him could indeed be used to support the charge of molestation. Moreover, contrary to the assertion of the majority, in accordance with jurisprudence, the plain,language of the applicable statute, section 97-5-23, is violated by a touching of any part of the body of the victim when accomplished with the requisite lustful or licentious sexual intent.

¶ 27. The Mississippi Supreme Court has established that “[f]ondling involves and requires proof of offensive touching” and lustful or licentious sexual desire. Goodnite v. State, 799 So.2d 64, 68 (¶ 23) (Miss. 2001). Additionally, evidence of a “lustful, licentious sexual desire ... may -be inferred by a jury from behavior a witness describes.” McDonald v. State, 816 So.2d 1032, 1034 (¶ 8) (Miss. Ct. App. 2002). The instructions in this case informed the jury that Stewart was guilty of the charged molestation if the jury found from the evidence that the following elements occurred beyond a reasonable doubt: that Stewart was eighteen years old or older; that M.L. was less than sixteen years old; that Stewart unlawfully touched, handled, or rubbed M.L. with his hands or any part of his body; and that Stewart did so for the purpose of gratifying his lust, or for the purpose of indulging his depraved licentious sexual desires.

¶28. However, our standard of review requires a review of all of the evidence in the record “in the light most favorable to the verdict,” and the record contains additional evidence and inferences of acts, distinct from Stewart’s sexual battery of M.L.’s vagina with his tongue, showing Stewart violated section 97-5-23(1) by grabbing M.L.’s arm to put her into the bed for sex. See King v. State, 47 So.3d 658, 663 (¶ 11) (Miss. 2010); Nix v. State, 8 So.3d 141, 144 (¶ 15) (Miss. 2009). Hence, Stewart’s'conviction for molestation in this case is supported by evidence and related inferences of his unlawful touching or handling of the arm of M.L., a child under the age of sixteen years of age, to put her in bed for sex to satisfy his lustful intent and his depraved licentious sexual desires.

      . We use the child’s initials to protect her identity.

      . • For simplicity and ease of reading, we refer •to the separate opinion as the. "dissent” even though it concurs in part with our opinion.

      . The complete statement was not introduced at trial and was not included in the record on appeal. Thus, we are unable to review- the complete statement, only those portions of the statement discussed by Stewart’s counsel at trial.

      . The purpose of the police statement was to show the inconsistencies in M.L.’s testimony, since, during her statement to the pólice, M.L. never mentioned that she felt Stewart's tongue on her vagina or inside of her vagina. In fact, M.L. did not mention the act at all.

      . At trial, M.L. testified that she did not remember Stewart grabbing her arm and telling her to get in the bed, and further testified that Stewart did not ask her to have sex with him.

      . According to the investigator who testified, this case was originally investigated as one of sexual battery.

      . See Warren v. State, 187 So.3d 616, 624-25 (¶¶ 17-19) (Miss. 2016) (The supreme court found that the appellant was not prejudiced by the State's failure to specify the controlled substance in the indictment, and the supreme court observed the mandatory discovery requirements of Uniform Rule of Circuit and County Court 9.04(A)); Price v. State, 898 So.2d 641, 654 (¶ 32) (Miss. 2005); Terry v. State, 26 So.3d 378, 381-82 (¶¶ 11, 17) (Miss. Ct. App. 2009).

      . Section 97-5-23(1) provides, in pertinent part:
      Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, or with any object, any child under the age of sixteen (16) years, with or without the child’s consent, ... shall be guilty of a felony.

      . Stewart also received discovery in this'case that included M.L.’s prior statement to the police.


author: LEE, C.J.,

text:
    THE PENNINGTON GROUP, LLC, Joe Pennington, Helen Pennington, and Pennibunkport Investments, LLC, Appellants v. PRIORITYONE BANK, Appellee
    NO. 2015-CA-01173-COA
    Court of Appeals of Mississippi.
    02/07/2017

      ATTORNEYS FOR APPELLANTS: SEAN A. MILNER, STEVEN PRICE NIXON
    ATTORNEY FOR APPELLEE: DEREK ANDREW HENDERSON
   LEE, C.J.,

FOR THE COURT:

¶ 1. The Rankin County Chancery Court found that PriorityOne Bank held a first lien position over Helen Pennington, and that the foreclosure conducted by Helen was subject to PriorityOne’s priority position. Finding no. reversible error, we affirm, . , , ;

FACTS AND PROCEDURAL HISTORY

¶ 2, On June 10, 2008, The Pennington Group LLC (TPG) executed a deed of trust to PriorityOne Bank, pledging a certain tract of real property located in Rankin County, Mississippi, to secure the debt of Ridgeview Homes LLC for the amount of $80,454. On February 17, 2009, TPG executed a second deed of trust to Priori-tyOne, again pledging the same property to secure the debt of Ridgeview Homes for the amount of $151,129. And on October 31, 2011, TPG executed a third deed of trust to PriorityOne, pledging the same property to secure the debt of Depco Holdings LLC for the amount of $143,066.55. David Pennington signed' all three deeds of trust as a manager of TPG. David was also a member and manager of both Ridgeview Homes and Depco Holdings. Depco Holdings was also listed as a member and manager of' Ridgeview Homes. All three deeds of trusts were recorded in the Rankin County Chancery Clerk’s Office.

¶ 3. On November 9, 2011, TPG executed four deeds of trust to Helen, David’s mother, pledging the same property to secure the debt of TPG for the following amounts: $19,875.36; $56,000; $27,000; and $27,322.33. Each of the four deeds of trust indicated that interest on these loans began accruing on a date prior to November . 9, 2011—one dated as far back as December 22, 2005. There is no record, however, of any loan, promissory note, or check corresponding with these debts. These four deeds of trust were signed by Joe Pennington (Joe), David’s father and Helen’s husband, as a manager and member of TPG. The deeds were recorded on the same date, November 9, 2011, in the Rankin County Chancery Clerk’s Office.

¶4. Depco Holdings defaulted on the 2011 PriorityOne loan. Consequently, Pri-orityOne instituted - foreclosure proceedings in July 2012. It is undisputed that at that time, PriorityOne held first lien position on the subject property, and Helen held second lien position. The foreclosure sale of the. subject, property was scheduled for August 23, 2012. During the bench trial, Joe Allbritton (Allbritton),,senior vice president and loan officer at PriorityOne, testified that Joe approached him and requested that PriorityOne not follow through with the foreclosure. Allbritton also testified that Joe’s request stemmed from the fact that TPG owned the subject property, and Joe owned TPG. According to Allbritton, Joe hoped he could, “clean [the property], up and perhaps sell the lots.”'

¶ 5. . At Joe’s request, ‘PriorityOne stopped the-foreclosure and. issued -a $160,837.46 loan to TPG: Allbritton testified that the amount reflected the unpaid sums of-Depco Holdings, minus "interest Joe requested not to pay. On behalf of TPG, Joe executed a promissory note to PriorityOne Bank on August 22, 2012, which listed the same subject property as collateral for the loan: The promissory note also read: “Borrowerac knowledges this Note is secured by 1st Deed of Trust covering [the subject property].” Allbritton testified that- PriorityOne did not actually receive any cash money in this transaction with Joe. Rather, as part of the transaction, Joe signed a “Disbursement Request and Authorization” form on behalf of TPG, indicating how the funds were to be applied. Specifically, the form indicated that $160,607.46 was the “amount paid to others on-Borrower’s behalf.” The document also indicated that the “specific purpose of the loan is: [a] REFINANCE OF BUSINESS DEBT.” TPG also executed a deed of trust dated August 22, 2012, in favor of Priority? One, pledging the same property as security-interest for the loan. The deed of-trust was signed by Joe and recorded on August 23, 2012.

¶6. In November 2013, PriorityOne received notice that Helen was foreclosing on the subject property. PriorityOne notified Helen that it retained first lien position by way of its 2008, 2009, 2011, and 2012 deeds of trust, and that any foreclosure sale of the property was subject to PriorityOne’s priority position. Helen responded that she held first lien priority, and she continued with foreclosure proceedings. The foreclosure sale took place on December 5, 2013. The winning bidder was Pennibunkport Investments LLC, which was created the same date of the foreclosure sale. Helen was the sole member and manager of Pen-nibunkport.

¶ 7. PriorityOne filed suit against TPG, Joe, Helen, and Pennibunkport. The chancellor held that PriorityOne had first lien position by virtue of its 2008, 2009, 2011, and 2012 deeds of trust, and therefore, the foreclosure conducted by Helen was subject to PriorityOne’s priority. The Pen-ningtons appeal, and we have condensed their- issues as follows: (1) whether the chancellor erred in finding that Priority-One held first lien position over Helen, and (2) whether the chancellor erred in finding that the entire proceeds of the 2012 Priori-tyOne loan were used to pay the 2008, 2009, and 2011 loans, and (3) whether the chancellor erred in- finding that all of the debtors in this- case were family.

STANDARD OF REVIEW

¶ 8. This Court reviews a chancellor’s factual findings under an abuse-of-discretion standard. Stokes v. Campbell, 794 So.2d 1045, 1047-48 (¶ 9) (Miss. Ct. App. 2001) (citations omitted). “The chancellor’s findings will not be disturbed upon review unless the chancellor was manifestly wrong, clearly erroneous or applied an incorrect legal standard.” Id. We review questions of law de novo. Graves v. Dudley Maples, L.P., 950 So.2d 1017, 1020 (¶ 14) (Miss. 2007).

DISCUSSION

I. Priority

¶ 9. The Penningtons argue that the chancellor erred when he held that PriorityOne had a priority lien position over Helen. Though the chancellor did not give a rationale for his holding, the Penning-tons suggest that the chancellor found the 2012 PriorityOne loan to be a renewal of its previous loans, particularly given the chancellor’s citation to Smith v. Childress, 119 Miss. 20, 80 So. 345, 346 (1919) (holding that a subsequent loan made as a renewal of a prior loan will keep the priority date of the deed of trust from the prior loan and prevail over an intervening lien holder). We decline to state whether the 2012 PriorityOne loan was a renewal as there was no renewal language in any of the loan documents. The ultimate issue— whether PriorityOne held first lien position—is an issue of law, which we review de novo.

¶ 10. In Mississippi, the priority positions of deeds of trusts are “governed by the priority in time of the filing of the several instruments.” Miss. Code Ann. § 89-5-5 (Rev. 2011). A “deed of trust shall take' effect,' as to all creditors and subsequent purchasers for a valuable consideration without notice, only from the time when delivered to the clerk .... ” Id. In other words, first in time is first in right. Cmty. Tr. Bank of Miss. v. First Nat’l Bank of Clarksdale, 150 So.3d 683, 687 (¶ 10) (Miss. 2014). Here, it is undisputed by the parties that PriorityOne filed its 2008, 2009, and 2011 deeds of trust prior to Helen filing her four deeds of trust in 2011. It is further undisputed that at the time Helen filed her four deeds of trust, PriorityOne held priority lien position over Helen. Then in 2012, PriorityOne issued another loan and filed a fourth deed of trust, calling into. question its priority position.

¶ 11. Notwithstanding that both parties focus their arguments on whether the 2012 loan renewed the 2011 loan and deed of trust, to the extent that the 2012 PriorityOne deed of trust is secondary to Helen’s deed of trust by virtue of the filing date, we find that equitable subrogation applies.

¶ 12. Equitable subrogation, which has been recognized and its application encouraged by the Mississippi Supreme Court, is the “doctrine whereby a court may ... substitute a later-filed lien into the primary lien[-]holder position on a tract of real estate, such that the substitute creditor succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities.” Id. at (¶ 11) (internal quotations marks and citations omitted). The supreme court has offered the following guidance on equitable subrogation:

When determining whether equitable subrogation should apply, the controlling consideration is the actual facts. The question is: What is natural justice under the actual facts of the situation? Ultimately, determining whether equitable subrogation applies is done on a case-by-case basis. Above all, subrogation must be equitable to the parties involved. The determination of whether subrogation is applicable is a factual determination of each particular case with consideration of fairness and justice as its guiding principles. The doctrine of subrogation is one of equity and benevolence; its basis is the doing of complete, essential, and perfect justice between the parties, without regard to form, and its object is the prevention of injustice. It does not .rest on contract, but.upon principles of natural equity. Accordingly, although certain factors may weigh more heavily for or against subrogation, ultimately it is awarded only after carefully weighing all -of the facts and circumstances and deciding what the fairest result would be. ■;

Id. at 687-88 (¶ 12) (internal citations and quotations omitted).

¶ 13. With those guiding principles in mind, the relevant facts we must consider are as follows. The 2012 PriorityOne loan was secured by a corresponding deed of trust for the same property. This property was owned by the same owner and allowed to be pledged by the same person for the debt of a family member’s company. Also, the 2012 PriorityOne loan promissory note explicitly stated,“Borrower acknowledges this Note is secured by [first] Deed of Trust covering [the subject property],” indicating PriorityOne’s continued priority lien position. Joe, in an effort to stop Pri-orityOne’s foreclosure on TPG’s property, authorized the 2012 loan amount to be applied toward the debt of his son David’s company, as a “refinance” of, business debt. The 2012 PriorityOne loan amount represented the unpaid sums owed by David’s company, minus interest Joe requested not to pay.

¶ 14. Additionally relevant is that PriorityOne never cancelled its 2008, 2009, or 2011 deeds of trust. While it is true Mississippi Code Annotated section 89-5-21 (Rev. 2011) requires a creditor to cancel its deed of trust upon its receipt of full payment of the money due by the deed of trust, we find the following language from the supreme court to be instructive:

It would'be anomalous indeed to hold that a secured creditor loses.his priority position when he refinances a debt such as this; It is true [section) 89-5-21 ... requirés [a secured creditor] to cancel its deed of trust upon its receipt of full payment of the money due by the mortgage-or deed of trust .... The [subsequent loan] no doubt “paid” the earlier note in a formalistic sense, but it was hardly “full payment” within the language of the deed of trust nor the statutory imperatives .... Out of an abundance of precaution, [the creditor]— while leaving the [previous] deed of trust uncancelled and unsatisfied—took new deeds of trust' [in subsequent years]. No sensible reason is offered why we should seize on this added security precaution and thereby render [the creditor]' less secure.

Shutze v. Credithrift of Am., Inc., 607 So.2d 55, 60 (Miss. 1992) (emphasis added) (internal citation omitted).

¶ 15. Helen testified at trial that she was aware that the property had been pledged to PriorityOne at the time she took her four deeds of trust. She also testified that she knew her husband, Joe, had met with PriorityOne to stop the foreclosure. Nevertheless, Helen foreclosed on the property owned by her husband’s company, only for the property to be bought by a company owned by Helen herself. Under the particular facts of this case, it would be inequitable to hold that PriorityOne loses its priority lien position to Helen, the wife and mother of all the debtors to whom Priori-tyOne showed favor by stopping its foreclosure proceedings and issuing another loan—a loan whose specific purpose was to refinance the business debt of a family member’s company.

¶ 16. Again, though no rationale is stated, it appears the chancellor reached his decision by finding the 2012 loan to be a renewal. We do not say whether the 2012 loan was a renewal. However, we note that a “chancellor will be affirmed where he reaches a correct result under the law and facts, though for a wrong reason.” Reed v. Weathers Refrigeration & Air Conditioning Inc., 759 So.2d 521, 526 (¶ 17) (Miss. Ct. App. 2000) (quoting Estate of Johnson v. Adkins, 513 So.2d 922, 926 (Miss. 1987)). Moreover, “if the judgment of [the] court can be sustained for any reason, it must be affirmed, and even though the trial judge based it upon the wrong, legal reason.” Id. (emphasis in original)(quoting Patel v. Telerent Leasing Carp., 574 So.2d 3, 6 (Miss. 1990)). Here, we find that the chancellor reached the correct conclusion for all the aforementioned reasons. As such, we affirm the chancellor’s finding that PriorityOne has a priority lien over that of Helen by virtue of its 2008, 2009, 2011, and 2012 deeds of trust, and that the foreclosure conducted by Helen was subject to the first priority lien position of PriorityOne.

II. Proceeds of the 2012 PriorityOne Loan

¶ 17. The chancellor found that the “entire proceeds of the [the 2012 Priority-One] loan were used to pay the debts secured by the [d]eeds of [t]rusts dated June 10, 2008, February 6, 2009, and October 11, 2011.” But the Penningtons argue that it is clear, from testimony and evidence at trial that “the proceeds from [the PriorityOne 2012] loan to [TPG] were used for the sole purpose of paying off the [PriorityOne 2011] loan to [Depco Holdings].” There was,, in fact, documentation indicating that the 2012 loan was used to pay off the 2011 loan; But Allbritton testified that PriorityOne was not paid on the 2008, 2009, and 2011 deeds of trust and, as a result, pursued foreclosure, reflecting a continued existence of the indebtedness on all three loans. Allbritton further .testified that the “loan was not paid off’ - and “no collateral [was] released at all,”

¶ 18. We note that “[o]ur appellate review is considered in the light most favorable to the party -who-found favor in the chancellor’s ruling.” Elchos v. Haas, 178 So.3d 1183, 1187 (¶ 3) (Miss. 2015) (citing Bright v. Michel, 242 Miss. 738, 743, 137 So.2d 155 (1962)). “If conflicting testimony is presented, all testimony favoring the [prevailing party) must be accepted, along with all permissible inferences which the. chancellor could draw from the proof and circumstances, becoming established facts.” Id. “Moreover, since the chancellor is best able to determine the credibility of the witnesses’ testimony, it is not [an appellate court’s] province to undermine the chancellor’s authority by replacing the chancellor’s judgment with our own,” In re Estate of Garter, 912 So.2d 138, 143 (¶ 18) (Miss. 2005).

¶ 19. In the instant case, the chancellor’s finding was supported by substantial credible evidence. None of the three prior deeds of trust were ever cancelled to reflect their satisfaction, and foreclosure proceedings were initiated under- the 2011 deed of trust-indicating Depco Holdings’ continued indebtedness. PriorityOne testified that it never received any funds from David, and the loans were not paid off. Given the evidence before the chancellor, we cannot say that the chancellor erred in finding that the entire proceeds from the 2012 loan were used to pay the debts of the prior three deeds of trust. This issue is without merit.

III. Relationship of the Parties

¶20. The Penningtons also argue that the record does not support the chancellor’s finding that “all of the debtors herein are family undoubtedly].” We are not persuaded. At trial, Joe testified that he was the. owner of TPG, and he allowed the subject property to be pledged as collateral. The 2008, 2009, and 2011 deeds of trust, which pledged the subject property to PriorityOne, were all signed by David to secure the indebtedness of Ridgeview Homes and Depco Holdings. PriorityOne’s counsel represented to the chancellor that both Ridgeview Homes and Depco Holdings were Joe’s son David’s companies. This assertion was not contradicted at trial or on appeal. In response to PriorityOne’s complaint, the Penningtons admitted David was the member, manager, and principal of Depco Holdings. And though the Penningtons strongly contend that there is no evidence that Ridgeview Homes was also one of David’s companies, records from the Secretary of State’s Office demonstrate that David was in fact the owner. See May v. State, 240 Miss. 361, 127 So.2d 423, 426 (1961) (An appellate court “may take judicial notice of the official records of the Secretary of State.”). The Penningtons’ response also admitted that David was Helen’s son, and. at trial, Helen testified that Joe was her husband.

¶21. All of the deeds of trust in this ease, whether executed-to PriorityOne or to Helen, listed the same property as collateral to secure the debts of David’s companies, Ridgeview Homes and Depco Holdings, or Joe’s company, TPG. The chancellor did not commit manifest error by finding that “all of the debtors herein are family undoubtedly].” This issue is without merit.

¶22. THE JUDGMENT OF THE RANKIN COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THI§ APPEAL ARE ASSESSED TO THE APPELLANTS.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.