author: IRVING, J.,

text:
    Calvin JEFFERSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00239-COA.
    Court of Appeals of Mississippi.
    June 2, 2009.
    Rehearing Denied Oct. 6, 2009.
    Certiorari Denied Feb. 11, 2010.
    Benjamin Allen Súber, Attorney for Appellant.
    Office of the Attorney General by Deirdre McCrory, Attorney for Appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Following a jury trial, the Calhoun County Circuit Court convicted Calvin Jefferson of the sale of cocaine. Jefferson was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections, with four years suspended and four years of post-release supervision. He also was ordered to pay a $5,000 fine with $2,500 suspended. Aggrieved, Jefferson appeals and asserts that the verdict is against the overwhelming weight of the evidence.

¶2. We find no reversible error; thus, we affirm Jefferson’s conviction and sentence.

FACTS

¶ 3. Jefferson was indicted in August 2007 for selling cocaine in December 2005 to a confidential informant. In January 2008, Jefferson went to trial and was convicted of selling forty dollars’ worth of cocaine to the confidential informant. The confidential informant testified concerning the transaction that took place between Jefferson and him.

¶ 4. The informant stated that sometime prior to this incident, he contacted Amory Willard and Tim Hamilton about becoming a confidential informant. The informant testified that he had struggled with a drug problem for approximately seven years and that he wanted to become a confidential informant in order to conquer his drug addiction. The informant stated that he thought becoming an informant would help him kick his drug habit. He surmised that drug dealers would not sell him drugs after they found out that he had worked as a confidential informant.

¶ 5. The informant testified that on December 8, 2005, Jefferson called him several times and asked if he wanted to buy drugs. The informant stated that, at this point, he called Deputy Willard and informed him that Jefferson had called and wanted to sell the informant some drugs. According to the informant, he then met with Deputy Willard and Agent Hamilton at a remote location in Calhoun County. The informant stated that Deputy Willard and Agent Hamilton searched his person and his vehicle before equipping him with a wire and a camera. The informant also stated that recording devices were put in his vehicle. The informant testified that while at the remote location, he called Jefferson and told him that he wished to purchase forty dollars’ worth of crack cocaine and suggested that they meet at a location in town.

¶ 6. The informant then stated that he and Jefferson met at a car wash on Highway 9 and that the officers monitored their meeting from a nearby location. The informant stated that he gave the money to Jefferson and that Jefferson told him that he was going to go and get the cocaine and bring it back to him. According to the informant, Jefferson returned approximately fifteen minutes later and placed the crack cocaine on the hood of the informant’s vehicle. The informant testified that Jefferson then asked if he could have some of the drugs and that he eventually allowed Jefferson to take a piece of it. The informant further testified that he returned to the post-buy location after rebuffing an attempt by Jefferson to get the two of them to ride around and smoke crack together.

¶ 7. On cross-examination, Jefferson’s attorney pointed out that there was a possession of cocaine charge pending against the informant when the informant made the purchase from Jefferson, even though the informant had stated on direct examination that he did not have any charges pending against him when he made the buy. Jefferson’s attorney also pointed out that the crime had occurred over two years prior to Jefferson’s trial and that the informant had not been prosecuted for that crime. The informant testified that he did not agree to serve as an informant in hopes of receiving a lenient sentence in that case.

¶ 8. Further, Jefferson’s attorney asked the informant if there was any particular reason that Jefferson was selected as the person from whom to buy the drugs. The informant responded that, although he could not remember the entire conversation, he thought that Deputy Willard suggested that he try to make a buy from Jefferson. Jefferson’s attorney then questioned the informant about the informant’s extensive criminal history, including a charge of burglary, forgery, and numerous charges of writing bad checks. Jefferson’s attorney pointed out that the informant had either pleaded guilty or that the charges had been dismissed. Jefferson’s attorney also pointed out that three weeks before the informant bought the drugs from Jefferson, Deputy Willard procured the dismissal of a charge that the informant had pending against him for driving with a suspended license. Also, on cross-examination, the informant admitted that Deputy Willard had agreed to help him with outstanding tickets in exchange for his making drug buys.

¶ 9. Deputy Willard also testified at Jefferson’s trial. He stated that he was contacted by the informant, who told him that Jefferson had called him and asked him if the informant wanted to purchase drugs. Deputy Willard stated that he and Agent Hamilton met with the informant and equipped him with audio and video devices. Deputy Willard further stated that he and Agent Hamilton went to a location about a mile and a half from the car wash where they listened to what transpired between the informant and Jefferson. According to Deputy Willard, although they were able to hear, they could not see things as they unfolded. Deputy Willard stated that he heard the informant make contact with Jefferson and that the informant gave money to Jefferson. Deputy Willard then stated that Jefferson left the car wash and went to an area known as the “Quarters of Bruce.” Deputy Willard testified that Jefferson returned a short while later and tried to get into the informant’s vehicle but that the informant refused to allow him to do so. Deputy Willard stated that Jefferson then placed the rocks of cocaine on the hood of the informant’s vehicle and that the informant picked them up, but later, after constant pleas from Jefferson, allowed Jefferson to take a small piece.

¶ 10. Agent Hamilton also testified at Jefferson’s trial. He stated that on December 8, he met with the confidential informant and Deputy Willard at a “pre-buy” location. Agent Hamilton stated that he and Deputy Willard searched the informant and his vehicle and placed audio and video surveillance equipment in the informant’s vehicle. Agent Hamilton stated that he then issued the informant forty dollars to be utilized in the purchase of drugs from Jefferson. Agent Hamilton said that the informant then contacted Jefferson and arranged to meet Jefferson at the car wash. Once at the car wash, Agent Hamilton observed the informant give Jefferson forty dollars. Agent Hamilton testified that he watched Jefferson leave the car wash and travel north on Highway 9. According to Agent Hamilton, Jefferson returned to the car wash shortly thereafter and “conducted the transaction.” Agent Hamilton stated that after the transaction had been completed, he and Deputy Willard met the informant and that the informant gave the drugs to him. Agent Hamilton testified that he subsequently transported the substance to the Mississippi Crime Laboratory.

¶ 11. Grady Downey, a forensic scientist with the crime lab, testified that he examined the substance that was brought to the crime lab and determined that it was free base cocaine.

¶ 12. Jefferson testified on his own behalf and denied that he had sold drugs to the informant. However, he admitted that he had been a crack cocaine addict for approximately sixteen years and that he was still smoking cocaine. Jefferson stated that he and the informant had smoked together on numerous occasions before this incident. Jefferson recalled that the informant had called him and told him that he had drugs that he wanted to smoke and that they agreed to meet at the car wash. According to Jefferson, shortly after he arrived, he remembered that he did not have his pipe, so he left to go get it. Jefferson stated that after he returned, he attempted to get into the informant’s vehicle, but the informant would not allow him to do so. Jefferson stated that he suggested that they go somewhere to smoke the drugs but that the informant told him that he was not going anywhere. Jefferson stated that this caused him to wonder why the informant had called him if he did not want to smoke.

¶ 13. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 14. On appeal, Jefferson raises one issue: that the verdict is against the overwhelming weight of the evidence. In Brown v. State, 970 So.2d 710, 713 (¶ 8) (Miss.2007), the Mississippi Supreme Court stated:

We will disturb a jury verdict only when “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). This Court acts as a “thirteenth juror” and views the evidence in the light most favorable to the verdict. Id. (citing Herring, 691 So.2d at 957). A decision to reverse and order a new trial, “unlike a reversal based on insufficient evidence, does not mean that the acquittal was the only proper verdict.” Id. (quoting McQueen v. State, 423 So.2d 800, 803 (Miss.1982)).

¶ 15. Jefferson’s contention — that the verdict is against the overwhelming weight of the evidence — is premised on the fact that the only evidence of the exchange of money for drugs came from the informant. He points out that the video did not capture money or drugs being transferred between him and the informant. Further, Jefferson argues that the confidential informant’s testimony is not credible because he did not initially mention that he had a history of trouble with the law. Jefferson also argues that it is not clear that he actually transferred drugs to the informant.

¶ 16. We find Jefferson’s arguments unconvincing, as the testimonies of the informant, Deputy Willard, and Agent Hamilton clearly establish that Jefferson sold cocaine to the informant. Deputy Willard and Agent Hamilton testified that they listened to the transaction, and Deputy Willard stated that the video corroborates the informant’s testimony that Jefferson placed the rocks of cocaine on the hood of the informant’s vehicle after being paid forty dollars for the crack cocaine.

¶ 17. As for Jefferson’s argument that the informant’s testimony is not credible, we note that it has long been established that “[t]he jury is the trier of witness credibility.” Hicks v. State, 812 So.2d 179, 194(¶ 40) (Miss.2002) (citing Collier v. State, 711 So.2d 458, 462(¶ 18) (Miss.1998)). “Jurors are permitted to, and have a duty to, resolve conflicts in testimony they hear.” Id. (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)). Further, it is well settled that “[jurors] may believe or disbelieve, accept or reject, the utterances of a witness.” Id. (quoting Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979)). Thus, based on the reasons set forth above, we conclude that allowing Jefferson’s conviction to stand would not sanction an unconscionable injustice. Accordingly, we find no merit to this issue.

¶ 18. THE JUDGMENT OF THE CALHOUN COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FOUR YEARS SUSPENDED AND FOUR YEARS OF POST-RELEASE SUPERVISION AND TO PAY A FINE OF $5,000 WITH $2,500 SUSPENDED IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CALHOUN COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Willard was a deputy sheriff at the time that the confidential informant contacted him, and Hamilton is an agent with the Mississippi Bureau of Narcotics.

      . The informant stated that he had known Jefferson for approximately a year prior to this incident.

      . Prior to trial, Deputy Willard and Agent Hamilton watched the video in its entirety.

      . Jefferson stated that it was not unusual for the informant to call him because he was aware that the informant preferred not to smoke drugs alone. Jefferson also stated that the informant would often call him and ask if he wanted to smoke drugs with the informant.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Robert REED, Jennifer Reed, Along With Federal Insurance Company, as Subrogee of Directional Drilling Contractors, LLC, Appellants, v. D & D DRILLING & EXPLORATION, INC. and James Polk, Appellees.
    No. 2008-CA-01148-COA.
    Court of Appeals of Mississippi.
    June 9, 2009.
    Rehearing Denied Nov. 10, 2009.
    Certiorari Denied Feb. 11, 2010.

      Alex Jay Shook, Joseph A. Ziemianski, Jason S. Schulze, attorneys for appellants.
    Donna Marie Meehan, Michael D. Simmons, Jackson, attorneys for appellees.
    Before MYERS, P.J., IRVING AND ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Robert Reed, his wife, and his insurance company sued D & D Drilling and its employee James Polk after Polk allegedly injured Reed by negligently releasing a come-along on an oil rig in Lamar County, Mississippi. The trial court granted summary judgment to the defendants. Finding error, we reverse and remand.

FACTS

¶ 2. Reed was an employee of DDC, a subcontractor that specialized in directional drilling. D & D was another subcontractor that owned the rig itself and was responsible for ordinary day-to-day drilling operations at the well. The general contractor is no longer a party to the suit.

¶ 3. On the day of the accident, Reed was supervising directional drilling on the rig. The plaintiffs alleged that Reed directed Polk, a crewman, to release a come-along “one' notch at a time,” but Polk instead struck it with a hammer, releasing it suddenly. This caused the come-along to strike Reed repeatedly, leaving him severely injured. Polk, who was also injured, denied striking the come-along.

¶ 4. The plaintiffs sued under two theories: negligence and premises liability. The defendants filed a motion for summary judgment, which the trial court granted.

STANDARD OF REVIEW

¶ 5. We review a trial court’s disposition of a motion for summary judgment de novo. Treasure Bay Corp. v. Ricard, 967 So.2d 1235, 1238(¶ 10) (Miss.2007). This Court “examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So.2d 977, 979(¶ 7) (Miss.2001) (citation omitted). The moving party has the burden of demonstrating that no genuine issue of material facts exists, and the nonmoving party must be given the benefit of the doubt concerning the existence of a material fact. Id.

DISCUSSION

¶ 6. The trial court, taking this as a premises liability case only, held that the plaintiffs’ claims were barred under two doctrines: the intimately connected doctrine, see Vu v. Clayton, 765 So.2d 1253, 1255 (¶¶ 7-8) (Miss.2000), and the knowledge of the danger doctrine. See Diamond Int’l Corp. v. May, 445 So.2d 832, 835 (Miss.1984). Each of these doctrines, however, applies only to so-called passive negligence, that is, a dangerous condition of the property. See Hoffman v. Planters Gin Co., 358 So.2d 1008, 1012-13 (Miss.1978). Simply put, this is not a premises liability case, and defenses to premises liability do not apply. See Presswood v. Cook, 658 So.2d 859, 862 (Miss.1995). “Action or inaction by the possessor (of the land) with knowledge of an individual’s presence in an operation of some device is a question of negligence.” Id. (citations and internal quotations omitted).

¶7. Turning to the question of Polk’s negligence, it is apparent that the trial court erred in granting summary judgment to the defendants. The plaintiffs produced evidence that Polk, an employee of D & D acting within the scope of his employment, negligently struck the come-along, injuring Reed. Accordingly, the issue of Polk’s negligence is a question for a jury.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES.

KING, C.J., LEE, P.J., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.


author: LEE, P.J.,

text:
    Michael Gene RAY a/k/a Mike, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00401-COA.
    Court of Appeals of Mississippi.
    June 23, 2009.
    Rehearing Denied Nov. 24, 2009.
    Certiorari Denied Feb. 11, 2010.

      Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General, by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. A jury in the Lowndes County Circuit Court found Michael Gene Ray guilty of murder. Ray was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Ray subsequently filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The motion was denied, and Ray filed this appeal. In his appeal, Ray raises several issues, which we state verbatim:

(1) Whether the trial court erred when it overruled the appellant’s motion for JNOV because the actions of the appellant were clearly in line with Mississippi statutory law allowing for excusable homicide in cases of self-defense.
(2) Whether the trial court erred when it overruled the appellant’s motion for a new trial because the overwhelming weight of the evidence pointed towards excusable homicide in self-defense and not murder.
(3) In the alternative, whether the trial court erred when it failed to grant [the] appellant his motion for a new trial on the grounds that [the] overwhelming weight of the evidence pointed towards manslaughter rather than murder.
(4) In the alternative, whether the trial court erred when it denied the appellant’s motion for a JNOV because the evidence was insufficient to support a verdict of murder, and instead, support a verdict of manslaughter.
(5) Whether the circuit court erred in failing to properly consider the appellant’s motion to dismiss for a violation of his statutory right to a speedy trial.
(6) Whether the circuit court erred in failing to properly consider the appellant’s motion to dismiss for a violation of his constitutional right to a speedy trial.
(7) Whether trial counsel’s ineffectiveness deprived [the] appellant of his constitutionally mandated right to a fair trial.

FACTS

¶2. On June 17, 2005, Danny Hudson (Hudson) was drinking alcohol at the Slab House, a bar in Caledonia, Mississippi. Ray and his mother, Doris Ray, lived in a trailer diagonally across the road from the Slab House. Ray’s sister, Sheila Ray (Sheila), was Hudson’s girlfriend at the time of his death, and Sheila, along with Alicia, her daughter with Hudson, also lived in the trailer with Ray and Doris.

¶ 3. Doris was the bartender at the Slab House and began her shift that day at approximately 4:00 p.m. Doris testified that Hudson and Sheila came into the bar sometime after her shift started. At one point, Sheila became angry with Hudson for speaking with another woman and left the bar. Renee Taylor, a patron at the Slab House, testified that she saw Sheila slap Hudson. Hudson eventually followed Sheila home, and she testified that he kicked in the trailer door. Sheila testified that she failed to notify the police of this during the investigation of Hudson’s death. The two talked for a while, began fighting again, left the trailer, and headed to the bar. Sheila testified that Hudson tried to prevent her from entering the bar by grabbing her hair. However, Doris testified that Hudson had Sheila by the arm, not her hair. Thresa Sorrells, a Slab House patron, also testified that Hudson was holding Sheila by her shirt and not her hair.

¶ 4. Sheila eventually went home and told Ray about her altercation with Hudson. Sheila went inside the trailer. Ray testified that he went to confront Hudson and carried a piece of pipe with him. Ray stated that he carried the pipe to let Hudson know “I was coming after him.” According to Ray, Hudson tackled him, kicked him twice, and busted his lip. James Wright, the owner of the Slab House, broke up the fight. Wright took the pipe away from Ray and threw it in a dumpster. Wright testified that Hudson was not holding a weapon. Mark Boch, a patron at the Slab House, assisted Wright in breaking up the fight. Boch testified that he never saw any blows; it looked like Hudson and Ray were wrestling. Wright and Boch testified that Hudson and Ray left the scene without any further incident.

¶ 5. At one point, Hudson came back to the Slab House looking for Sheila and Alicia. Doris testified that she told him they were at the house, but he should leave them alone. At trial, Doris stated that she heard Hudson say to Wright, “I’m gonna kill that son-of-a-bitch.” Doris failed to mention this statement to the police, and Wright stated that he did not see Hudson again after he broke up the fight.

¶ 6. Ray testified that he was sitting on a picnic bench near the trailer when he saw Hudson walking across the street toward him. Ray stated that Hudson picked up a rock and threw it at him, hitting him in the head and arm. Ray testified that he then picked up a knife, and as Hudson was attempting to throw another rock at him, he stabbed Hudson in the side. Ray then turned, entered the trailer, washed up, and left the scene. Alicia testified that she saw Hudson throw a rock at Ray, but Ray had a knife in his hand before Hudson picked up the rock. Taylor testified that she saw Ray with a large steak knife. Taylor testified that she attempted to stop the fight, but Ray turned to her with the knife and told her to shut her mouth. Taylor stated that Ray then turned to Hudson and stabbed him in the side. Taylor said that Hudson then grabbed his side, took a couple of steps, and fell to one knee. Taylor testified that Hudson was not holding anything in his hands nor was he advancing upon Ray. Ray stated that Hudson had backed him up to the trailer steps, but Taylor testified that the stabbing occurred in the gravel area near the road. There was blood spatter on the gravel near the road close to the area where Taylor said the stabbing had occurred.

¶ 7. Sheila testified that Hudson kept advancing on Ray. Sheila also stated that Hudson was holding a rock, but she failed to include this in her statement to the police. Sheila stated that she was not aware at first that Hudson had been stabbed. When Hudson fell to the ground, Sheila attempted to retrieve his wallet because she had been told it contained marijuana. Hudson was taken to the hospital where he died the next morning.

¶ 8. The knife used by Ray was never found. Dr. Steven Hayne, a pathologist, testified that Hudson had died from a massive intra-abdominal hemorrhage. Dr. Hayne stated that the knife penetrated Hudson’s spleen, kidney, and pancreas, and the blade was approximately five and one-half to six inches long. Ray turned himself in at the Lowndes County Sheriffs Department the next morning.

DISCUSSION

I. DID THE TRIAL COURT ERR IN FAILING TO GRANT RAY’S MOTION FOR A JNOV BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE MURDER CONVICTION?

II. DID THE TRIAL COURT ERR IN FAILING TO GRANT RAY’S MOTION FOR A JNOV BECAUSE THE EVIDENCE ONLY SUPPORTED A CONVICTION FOR MANSLAUGHTER?

¶ 9. Ray contends that the trial court erred in failing to grant his motion for a JNOV because the evidence was insufficient to support his murder conviction and because the evidence only supported a manslaughter conviction. A motion for a JNOV challenges the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.’ ” Id. (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the crime existed, this Court will affirm the denial of a motion for a JNOV. Id. If we find that reasonable, fair-minded jurors could have concluded that the defendant was guilty of the accused crime, the evidence will be deemed sufficient. Id.

¶ 10. Ray specifically contends that the State failed to prove that his actions were not in necessary self-defense or that he acted with deliberate design to commit the murder. Ray was indicted pursuant to Mississippi Code Annotated section 97-3-19 (Rev.2006), which states, in pertinent part, that “(1) [t]he killing of a human being without the authority of law by any means or in any manner shall be murder ... (a) [w]hen done with deliberate design to effect the death of the person killed.... ” The indictment tracked the statutory language adding the following phrase: “and not in necessary self[-]defense.”

¶ 11. Ray cites to two specific statutes to support his argument. Mississippi Code Annotated section 97-3-17 (Rev. 2006) provides that a homicide “shall be excusable: (a) [w]hen committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intend’ Mississippi Code Annotated section 97-3-15 (Rev.2006) states, in pertinent part, the following:

(1) The killing of a human being by the act, procurement or omission of another shall be justifiable in the following cases:
(e) When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling, in any occupied vehicle, in any place of business, in any place of employment or in the immediate premises thereof in which such person shall be;
(f) When committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished ....

¶ 12. Manslaughter is defined as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense....” Miss. Code Ann. § 97-3-35 (Rev.2006).

¶ 13. Ray claims that the facts support either excusable or justifiable homicide or manslaughter, namely because of the prior altercation between him and Hudson and because of the testimony that two landscaping rocks had been moved, thus proving that Hudson intended to harm him. However, we find that the facts were conflicting and, at best, created a question for the jury. Ray admitted that, prior to the stabbing, he went to confront Hudson and was carrying a pipe to get Hudson’s attention. Doris’s statement that she heard Hudson tell Wright that he was going to kill Ray was not supported by Wright’s testimony. Taylor consistently testified that Ray and Hudson were each standing his ground and not advancing upon each other. Taylor, as well as the physical evidence, contradict Ray’s testimony that Hudson backed him up to the trailer steps, implying that Ray had no choice but to stab Hudson. Taylor stated that as she attempted to talk to Ray and Hudson, Ray turned to her, told her to be quiet, then turned back to Hudson and stabbed him. Alicia testified that Ray had picked up the knife before Hudson picked up a rock. Taylor testified that Hudson was not holding anything at the time of the stabbing. Furthermore, Ray left the scene immediately after the stabbing, creating the impression for the jury that he knew Hudson was no longer a threat. The jury was instructed to consider whether the killing of Hudson was murder, manslaughter, or committed in self-defense. We find that the jury had sufficient evidence to convict Ray of murder. This issue is without merit.

III. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE BECAUSE THE EVIDENCE PROVED SELF-DEFENSE AND NOT MURDER?

IV. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE BECAUSE THE EVIDENCE SUPPORTED A MANSLAUGHTER CONVICTION?

¶ 14. Ray next argues that the overwhelming weight of the evidence did not support a murder conviction. Specifically, Ray contends that the evidence supported his claim of self-defense. In the alternative, Ray contends that the evidence supports imperfect-self-defense manslaughter or heat-of-passion manslaughter. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18). “[T]he evidence should be weighed in the light most favorable to the verdict.” Id

¶ 15. “A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, ‘unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.’ ” Id (quoting McQueen v. State, 423 So.2d 800, 803 (Miss.1982)). Rather, it means that this Court, sitting as the “thirteenth juror,” simply disagrees with the jury’s resolution of the conflicting testimony. Id

¶ 16. Viewing the evidence in the light most favorable to the verdict, we find that the verdict was not against the overwhelming weight of the evidence. As previously stated, the testimony at trial presented a factual dispute for the jury’s resolution. The jury found Taylor’s testimony to be credible and Ray’s attempts to establish a self-defense theory to be contradictory.

1117. Ray cites to Mississippi Code Annotated section 97-3-31 (Rev.2006), which provides for a manslaughter conviction when an individual unnecessarily kills another while resisting an effort by the other to commit a felony. However, weighing the evidence in the light most favorable to the verdict, there was conflicting testimony as to whether Hudson was attempting to commit a felony. There was testimony that: Hudson was walking to Ray’s house; he was unarmed; and he was not making any aggressive gestures or remarks to suggest to Ray that he was planning to harm Ray.

¶ 18. Ray also claims that the evidence overwhelmingly supported a “heat-of-passion” manslaughter conviction. Our case law has defined heat of passion as follows:

A state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Clemons v. State, 952 So.2d 314, 319(¶ 14) (Miss.Ct.App.2007). There was no evidence that Ray was acting in a state of violent and uncontrollable rage. Ray only attempted to show that he was afraid of Hudson and acted in self-defense. We find that this issue is without merit.

V.DID THE TRIAL COURT ERR IN DENYING RAY’S MOTION TO DISMISS FOR A VIOLATION OF HIS STATUTORY RIGHT TO A SPEEDY TRIAL?

¶ 19. Ray contends that the trial court erred in denying his motion to dismiss for a violation of his statutory right to a speedy trial. Our standard of review in claims of speedy trial violations is as follows:

Review of a speedy trial claim encompasses the fact question of whether the trial delay rose from good cause. Under [the appellate court’s] standard of review, [the appellate court] will uphold a decision based on substantial, credible evidence. If no probative evidence supports the trial court’s finding of good cause, [the appellate court] will ordinarily reverse. The [S]tate bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion.

DeLoach v. State, 722 So.2d 512, 516(¶ 12) (Miss.1998) (citations omitted). Ray states that his statutory right to a speedy trial was violated pursuant to Mississippi Code Annotated section 99-17-1 (Rev.2007), which states as follows:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

Ray’s arraignment hearing was on August 18, 2005. Due to various continuances by Ray, including an almost two-year wait for a mental examination, and other matters, Ray was not tried until February 21, 2008, well past the 270-day deadline. However, we have held that if a defendant fails to raise the statutory right to a speedy trial within 270 days of his arraignment, he acquiesces to the delay. Mims v. State, 856 So.2d 518, 522(¶ 11) (Miss.Ct.App.2003); Malone v. State, 829 So.2d 1253, 1257(¶ 11) (Miss.Ct.App.2002). See also Walton v. State, 678 So.2d 645, 649-50 (Miss.1996). Ray filed his first motion to dismiss for failure to provide a speedy trial on September 24, 2007. This argument is without merit.

VI. DID THE TRIAL COURT ERR IN DENYING RAY’S MOTION TO DISMISS FOR A VIOLATION OF HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL?

¶ 20. Ray argues that his constitutional right to a speedy trial was violated under the factors set out by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Since there is no set amount of time within which a defendant must be brought to trial, the United States Supreme Court has developed a balancing test to determine whether a defendant’s constitutional rights to a speedy trial have been violated. See Barker, 407 U.S. at 530, 92 S.Ct. 2182. The four factors to be considered together and balanced are: (1) the length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Id. at 530-32, 92 S.Ct. 2182; Stark v. State, 911 So.2d 447, 450(¶ 7) (Miss.2005).

A. Length of the delay

¶ 21. Under Barker, “[t]he length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. In Mississippi, any delay from the date of arrest, indictment, or information until trial exceeding eight months is presumptively prejudicial. Stark, 911 So.2d at 449-50(¶ 7); Smith v. State, 550 So.2d 406, 408 (Miss.1989). Ray was arraigned on August 18, 2005, and his trial finally occurred on February 21, 2008. Since the delay exceeds eight months, it is presumptively prejudicial, and the cause of the delay must be analyzed under the remaining Barker factors.

B.Reason for the delay

¶ 22. “Once a delay is found to be presumptively prejudicial, the burden of proof shifts to the State to show cause for the delay.” Stark, 911 So.2d at 450(¶ 11). The appellate court must determine whether the delay should be charged to the State or the defendant. Id. Since the burden is on the State to provide a defendant with a speedy trial, this factor is weighed against the State unless it can show either that the delay was caused by the defendant or that the delay was for a good cause. Id.; Wiley v. State, 582 So.2d 1008, 1012 (Miss.1991).

¶ 23. The majority of the delay was the result of an agreed order for Ray to have a mental examination conducted by the Mississippi State Hospital. The agreed order granting the continuance for the examination was filed on September 2, 2005, and the authorities at the hospital notified the trial court on October 4, 2007, that Ray was competent to stand trial. The examination was delayed during that time due to the hospital’s assertion that they had not received certain information necessary to conduct the examination. Some of the information needed was to be provided by Ray and/or his attorney. While waiting for the mental examination, there were several “master orders of continuance” in the record as well as another agreed order of continuance filed on November 19, 2007, after the examination was completed. “Several occurrences may justify a delay in a criminal case, one of these being ‘well-taken’ motions for continuance.” Flora v. State, 925 So.2d 797, 815(¶ 63) (Miss.2006). Although it took approximately two years for the competency examination to be completed, we cannot count that time against the State because Ray requested the examination. Ray also requested the November 19, 2007, continuance. We find that the delays were for good cause or mainly caused by Ray.

C. Assertion of the right to speedy trial

¶ 24. On September 24, 2007, Ray filed a pro se motion to dismiss charges for failure to provide a speedy trial. On November 9, 2007, Ray’s attorney filed a motion for a speedy trial. On December 12, 2007, Ray filed a motion for a speedy trial. We note that Ray filed this last motion after his continuance had been granted and a trial date had been set for February 19, 2008. In Adams v. State, 583 So.2d 165, 169-70 (Miss.1991), the supreme court held that a demand for dismissal coupled with a demand for instant trial was insufficient to weigh the third Barker prong in defendant’s favor where the motion came after the bulk of the delay had elapsed. Ray’s first motion to dismiss was filed over two years after he was indicted. Ray’s motion for a speedy trial was first filed ten days prior to seeking a continuance and next filed after a trial date had been set. We find this factor weighs against Ray.

D. Prejudice to the Defendant

¶ 25. The supreme court has identified three main considerations in determining whether the accused has been prejudiced by a lengthy delay: “(1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired.” Jefferson v. State, 818 So.2d 1099, 1108(¶ 21) (Miss.2002) (internal quotations omitted). “Generally, proof of prejudice entails the loss of evidence, death of witnesses, or staleness of an investigation.” Sharp v. State, 786 So.2d 372, 381(¶ 19) (Miss.2001). Ray’s chief argument is that the delay of the competency examination amounts to oppressive pretrial incarceration. Ray contends that the letters he wrote complaining about his lengthy incarceration prove his anxiety and concern. Ray was incarcerated for a lengthy time, but it was a result of his request for a mental exam and the various requests for continuances. Ray also fails to point to any specific injury to his ability to prepare his defense.

¶ 26. While not considering lightly that a delay did exist, we recognize that: most of the delay was attributable to Ray; Ray filed his motions for a speedy trial after the bulk of time had elapsed; and Ray has failed to show he suffered any actual prejudice due to the delay. Thus, we cannot find that Ray’s constitutional right to a speedy trial was violated. This issue is without merit.

VII. WAS RAY’S TRIAL COUNSEL INEFFECTIVE?

¶ 27. In his final issue on appeal, Ray contends that his trial counsel was ineffective. For a defendant to successfully prove ineffective assistance of counsel, the defendant must show that the counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When a defendant raises an ineffective assistance of counsel claim on direct appeal, the question before this Court is whether the judge, as a matter of law, had a duty to declare a mistrial or order a new trial sua sponte on the basis of trial counsel’s performance. Colenburg v. State, 735 So.2d 1099, 1102(¶ 8) (Miss.Ct.App.1999).

¶28. Ray claims that his trial counsel had never tried a murder case before being appointed to represent him and that the trial court should have appointed co-counsel to assist with the trial. The docket sheet shows that Donna Smith was appointed as co-counsel on October 13, 2005. Smith signed part of Ray’s patient information that was sent to the hospital and filed in the trial court on March 2, 2006. There is no other mention of Smith in the record or in the trial transcripts. Ray concedes that this objection on its face does not prove ineffective assistance of counsel, but that this fact is relevant to his other concerns.

¶29. Ray states that his trial counsel was ineffective in asking for a continuance on November 19, 2007. We fail to see how asking for a continuance in this instance constitutes a deficient performance. Even so, Ray fails to show how this prejudiced his defense.

¶ 30. Ray contends that his trial counsel was ineffective by conceding that Ray killed Hudson. However, since Ray’s defense was that he killed Hudson in self-defense, we find trial counsel’s statement to be a tactical decision. Ray finally contends that his trial counsel vouched for the credibility of Dr. Hayne’s testimony when trial counsel asked Dr. Hayne the following:

I’m a country lawyer. And you’re a — if I might say — brilliant medical technologist or expert. Could you put this in language that Mama can understand? Can you tell me precisely — or where I can understand it and hopefully the ladies and gentlemen of the jury, did he just stick him?

Ray’s trial counsel was asking Dr. Hayne to discuss the type of wound inflicted upon Hudson. We fail to see how this question to Dr. Hayne, the State’s expert who was accepted by the defense, shows a deficient performance by Ray’s trial counsel, much less any prejudice resulting therefrom. This issue is without merit.

¶ 31. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


text:
    Kenneth HILL and Teresa Hill, Appellants, v. Wayne E. JOHNSON and Molly N. Johnson, Appellees.
    No. 2008-CA-00643-COA.
    Court of Appeals of Mississippi.
    July 21, 2009.
    Rehearing Denied Dec. 8, 2009.
    Certiorari Denied Feb. 11, 2010.

      Rex F. Sanderson, Houston, attorney for appellants.

      T. Jackson Lyons, Jackson, James M. Hood, Houston, attorneys for appellees.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Wayne and Molly Johnson (collectively, the Johnsons) filed suit in the Chickasaw County Chancery Court against Kenneth and Teresa Hill (collectively, the Hills) over a strip of land between their properties. After conducting a two-day trial, the chancellor found that the John-sons owned the property in question. Aggrieved from the chancellor’s finding, the Hills appeal arguing that: (1) the chancellor erred in her findings of fact; (2) the chancellor erred in her conclusions of law; and (3) the chancellor erred in failing to grant their motion for a new trial. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1984, the Johnsons acquired a farm in Chickasaw County from Morgan Davis’s heirs. The farm contained approximately eighty acres in section 22, township 13 south, range 3 east. The southeast corner of this property also served as the southeast corner of section 22. The warranty deed conveying the property to the Johnsons was subject to an exclusive easement to Jean M. Smith for purposes of ingress and egress.

¶ 3. In 2000, the Hills purchased approximately twenty acres of land that was directly south of the Johnsons’ land. Their land was mainly located in the northeast quarter of section 27, township 13, range 3 east, and a small portion in section 26. This land was previously owned by Howard Davis. To the east of each of these parcels of land is the Soctahoma Creek and the Tombigbee National Forest.

¶ 4. The two sections of land have a shared boundary line to the south of the Johnsons’ property in section 22 and to the north of the Hills’ property in section 27. The southeast corner of section 27 is also the northeast corner of section 22. In between these parcels of land is what was commonly referred to as a “field road.” The “field road” runs more or less in an east-west direction between the two sections. Each party is claiming that their property includes the “field road.”

¶ 5. On January 12, 2007, the Johnsons filed suit against the Hills seeking confirmation of title providing that they own the “field road,” injunctive relief against the Hills, and for actual and punitive damages. There was a parade of witnesses at trial. Harold Dendy, a surveyor, testified for the Hills. He stated that a monument placed by the soil conservation service and forestry service (forestry monument) served as the corner between section 22 and 27. This would put the section boundary line north of the “field road” and place the “field road” in the Hills’ property. The Johnsons called Sam Jaynes as their surveyor. He stated that the true section corner was 26.75 feet south of the monument. He stated that the section boundary line ran more or less along a fence on the south side of the “field road.” This would place the “field road” on the John-sons’ property. In addition to the parties, several long-time residents of the area testified. Many of them stated that the fence on the south side of the “field road” was always accepted as the boundary line between the two parcels-Morgan Davis owned the land north of the fence, and Howard Davis owned the land to the south of the fence.

¶ 6. At the end of the trial, the chancellor found that fence line on the south side of the “field road” served as the property line between the two parcels and, furthermore, that the Johnsons and their predecessors had gained title to the “field road” up to the south fence line through adverse possession. The Hills filed a motion to amend the chancellor’s findings of fact, which the chancellor denied. Thereafter, the Hills filed a motion for a new trial, which was also denied by the chancellor. The Hills now appeal the chancellor’s ruling.

STANDARD OF REVIEW

¶ 7. The supreme court in Ballard v. Commercial Bank of DeKalb, 991 So.2d 1201, 1204-05(¶ 13) (Miss.2008) provided our standard of review for the chancellor’s ruling:

This Court has a limited standard of review in examining and considering the decisions of a chancellor. The [appellate court] will not disturb the findings of the chancellor unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Thus, where there is substantial evidence to support the chancellor’s findings, [the appellate court] is without the authority to disturb his [or her] conclusions, although this Court might have found otherwise as an original matter.

(Internal citations omitted).

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN ITS FINDINGS OF FACT.

¶8. The Hills claim that the trial court made eleven findings of fact that are not supported by the evidence. We will address the findings of fact as a whole. See Bonderer v. Robinson, 502 So.2d 314, 316 (Miss.1986).

¶ 9. The trial court found the following: the fence on the south side of the “field road” served as the property line between the Johnsons’ and the Hills’ properties; the Johnsons owned the “field road” and the land up to a fence on the south side of the “field road”; and the Hills’ property started at the fence and ran south from that point.

¶ 10. One of the main cruxes of the Hills’ argument is based on the testimony of their surveyor. The Hills’ surveyor, Dendy, testified that, based upon his work, the shared section corner between the two properties was a forestry monument. Using this as his starting point, he ultimately concluded that the section line was north of the “field road” which placed the “field road” in the Hills’ property. However, Dendy undermined himself during his testimony. He stated that he settled with the forestry monument as his starting point because he could not find other forms of monuments designating the boundary line for the section corner. He also stated that it is likely the monument is not in its original place. Furthermore, he testified that he was not certain the monument served as the southeast corner of section 27, which is part of the Johnsons’ property.

¶ 11. The trial court deferred to the Johnsons’ surveyor, Jaynes. While surveying the subject land, Jaynes used global positioning satellites and infrared measuring devices in addition to the original plat maps for the area. Jaynes concluded that the forestry monument was 26.75 feet north of the original marker and corner. His survey revealed that the section line on the south side of section 27 ran very close to the fence on the south side of the “field road.” He ultimately concluded that the “field road” lies in the Johnsons’ property.

¶ 12. Jaynes’s findings were corroborated by other non-party witnesses. Raymond Davis grew up in the area. He testified that it was his understanding that Morgan Davis owned the property north of the fence, and Howard Davis owned the property south of the fence. Likewise, Allie Smith, who also grew up in the area, testified that the Johnsons owned the “field road” and the property to the north, and Howard Davis owned the property to the south. John Passons provided the most support for Jaynes’s findings. Pas-sons leased the land, which is now the Johnsons’ property, from Morgan Davis for four years immediately prior to the Johnsons’ purchase of the farm. He stated that while he was on the property, a big rain washed out part of the creek. Included in this wash-out was the original monument marker and a bridge leading across the Soctahoma Creek. He stated that the original monument was farther south, near Howard Davis’s land. He went on to testify that the fence on the south side of the “field road” had always been accepted as the property line.

¶ 13. The Hills’ witnesses were all interested parties in the subject land. In addition to the Hills testifying, Kenneth Hill’s father and both grantors of the property to the Hills testified. Each of them testified that they believed the “field road” lies within the Hills’ property. The trial court found the Johnsons’ witnesses to be more credible. We cannot fault the chancellor’s assessment, as all of the Johnsons’s witnesses, but one, were uninterested, non-parties to the present suit.

¶ 14. It is apparent from the chancellor’s opinion and judgment that she considered all the relevant and pertinent evidence. The evidence overwhelmingly supported her conclusion that the “field road” belonged to the Johnsons and their predecessor in title, Morgan Davis. We cannot say that the chancellor committed manifest error in her factual findings. Therefore, this issue is without merit.

II. WHETHER THE CHANCELLOR ERRED IN HER CONCLUSIONS OF LAW.

¶ 15. The Hills argue that the chancellor erred in her conclusions of law that the Johnsons and their predecessor in title claimed title to the “field road” and the land up to the south fence through adverse possession. They claim that the cases relied on by the chancellor are distinguishable from the present case, and that the chancellor should have relied on Dendy’s survey rather than Jaynes’s survey.

¶ 16. One may acquire property legally titled in another through an action to quiet title and after having established by clear and convincing evidence the elements of adverse possession, found in Mississippi Code Annotated section 15-1-13 (Rev.2003) and articulated by our supreme court in Rice v. Pritchard, 611 So.2d 869, 871 (Miss.1992), before a chancery court of proper jurisdiction. Apperson v. White, 950 So.2d 1113, 1116(¶ 5) (Miss.Ct.App.2007). Mississippi adopted a six-part test for determining whether adverse possession has occurred: “for possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Id. (citation omitted).

¶ 17. Essential to the analysis in the present case is that Mississippi allows tacking when “successive occupants are in privity with each other.” Buford v. Logue, 882 So.2d 594, 606(¶ 43) (Miss.Ct.App.2002). “Privity may be established or created by conveyance, agreement, or understanding which in fact transfers possession.” Id. The Johnsons meet the requirement of tacking because they were conveyed Morgan Davis’s property via warranty deeds.

¶ 18. We will discuss each factor of adverse possession separately.

1. Claim, of Ownership

¶ 19. In the end, the ultimate question is whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder on notice that the lands are held under an adverse claim of ownership. Apperson, 950 So.2d at 1117(¶ 7). The chancellor found that the Johnsons and their predecessor in title had established a claim of right through planting and harvesting trees, leasing the land to others, and bush-hogging the “field road” continuously.

¶20. We find substantial evidence in the record to support the chancellor’s finding that the Johnsons claimed ownership of the “field road.” Wayne Johnson testified that he had planted trees on his land, and the only way to get to that area was by using the “field road.” He also testified that he would use the “field road” to harvest the trees once the Hills removed their blockade. Furthermore, Passons and Sam Gore both testified that they had leased the property from Morgan Davis and the Johnsons respectively, and they used the “field road” during their lease periods. Finally, Lamar Beatty testified that he had bushhogged the “field road” for the Johnsons on two separate occasions since the Johnsons had purchased the property.

¶ 21. The most substantial evidence of a possessory act by Morgan Davis was the erection of the fence on the south side of the “field road.” “[T]he existence of an old fence, including disputed land in with the land of the claimant, [is] strong evidence of the elements required to prove adverse possession.” Id. at 1117(¶ 9). There was extensive testimony about this fence and how long it had existed on the south side of the “field road.” All the witnesses who grew up in the area recalled the fence being on the south side of the “field road” sixty to seventy years ago. This recollection was corroborated by surveyor Jaynes. He testified that the fence was embedded in several “large” trees on the south side of the “field road” evidencing, in his opinion, that the fence had been there for approximately sixty years. This Court has stated that “proof of the longevity of the fence’s existence could be found in the barbed-wire having grown deeply into the trees at various points.” Id.

¶ 22. We find that the acts performed by Morgan Davis and the Johnsons were sufficient to “fly their flag” over the “field road” and put Howard Davis and the Hills on notice that they are claiming ownership to it.

¾. Actual or Hostile

¶ 28. “The actual or hostile occupation of land necessary to constitute adverse possession requires a corporeal occupation, accompanied by a manifest intention to hold and continue to hold the property against the claim of all other persons, and adverse to the rights of the true owner.” Id. at 1118(¶ 12) (cit-mg Magee v. Magee, 37 Miss. 138, 153 (1859)).

¶ 24. In the case at bar, there was no testimony that Morgan Davis or the John-sons had given permission to Howard Daws or the Hills to use the “field road.” The evidence presented showed that Morgan Davis and the Johnsons had used the “field road” continuously and uninterrupted. Additionally, we find that the posses-sory acts of bushhogging the “field road,” leasing the property to others, and walking and driving on the road are sufficient to meet this element of adverse possession.

3. Open, Notorious, and Visible

¶ 25. The Johnsons and Morgan Davis did not attempt to hide their use of the “field road.” The fence on the south side of the “field road” was a “clear and visible indicator” of their occupation and use of the “field road.” Id. at (¶ 13). As correctly observed by the chancellor, the John-sons walked the road, drove on the road, and bushhogged the road, among other things. Furthermore, there was testimony that Morgan Davis, Passons, and Gore all used the “field road” in their farming operations. These acts were easily discoverable by Howard Davis and the Hills.

V Continuous and Uninterrupted for Ten Years

¶26. The Johnsons acquired Morgan Davis’s farm in 1984. The Johnsons continuously used the “field road” until 2004, when the Hills placed a blockade on the road claiming ownership, creating the present claim. Prior to the Johnsons, Morgan Davis continuously used this road uninterrupted for approximately fifty years. Therefore, we find that the chancellor was provided with sufficient evidence that the Johnsons and their predecessor in title used the “field road” far in excess of the ten-year statutory requirement.

5. Exclusive

¶ 27. “ ‘Exclusive use’ does not mean that no one else may use the property.” Id. at 1119(¶ 15) (citing Moran v. Sims, 873 So.2d 1067, 1069(¶ 10) (Miss.Ct.App.2004)). “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.” Id. “Exclusive use is at the most basic level the intent of actual and hostile possession.” Id.

¶ 28. The evidence presented showed that Howard Davis’s use of the “field road” was, at best, scant. Conversely, there was a plethora of evidence that Morgan Davis and the Johnsons used the “field road.” They walked the road, drove on the road, bushhogged the road, and allowed leasees to use the road during their lease period.

6. Peaceful

¶ 29. “The mere existence of a dispute over the use of land does not present an obstacle to satisfy the element of peaceful use.” Id. at (¶ 16). “Simple disputes often arise between neighboring landowners, but do not rise to the level of destroying the peaceful existence between them.” Id. (citing Dieck v. Landry, 796 So.2d 1004, 1009(¶ 15) (Miss.2001)).

¶ 30. There was no evidence presented that Morgan Davis and Howard Davis ever had any conflicts over the “field road.” The only evidence presented that Howard Davis and the Johnsons had any non-peaceful existence was when Howard Davis confronted Passons once about using the “field road” when he voiced his displeasure with Passons placing a cable across the “field road” to prevent people from coming onto his property. Howard Davis’s concern was that hunters should be able to access to the “field road” to cross the property. Passons told him that he was going to keep the cable up and that Howard Davis would have to allow the hunters to use his property, which Howard Davis did. However, this one-time, conflict was resolved without any further disagreements between Passons and Howard Davis. Additionally, no evidence was presented that any discord existed between the Johnsons and Howard Davis with regard to the “field road.”

¶ 31. The evidence presented to the trial court clearly established each element of adverse possession. Therefore, we find that the chancellor did not err in finding that the Johnsons and their predecessor in title claimed title to the “field road” through adverse possession. Accordingly, this issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING THE HILLS’ MOTION FOR A NEW TRIAL.

¶82. The Hills argue that the trial court erroneously found that Gore stated that the fence on the south side of the “field road” was the property line. The Hills argue the trial court relied on this misstatement in its determination.

¶ 33. “The standard of review for considering a trial court’s decision denying a motion for a new trial is whether the trial court abused it[s] discretion.” Smith v. Crawford, 937 So.2d 446, 447(¶ 5) (Miss.2006) (citations omitted).

¶ 34. Upon our review of the record, we find the trial court did not abuse its discretion by not granting the Hills a new trial. Gore testified that at one point, he simultaneously leased both the Johnsons’ place and Howard Davis’s place. He stated that he leased everything from Howard Davis except for the “field road.” He went on to testify that there was no dispute about using the road.

¶ 35. The chancellor weighed this testimony with the other testimony regarding the “field road” and the fence, and she found that the evidence supported a finding that the Johnsons owned the “field road.” Moreover, as we stated in Issue I, the evidence overwhelmingly indicated that the Johnsons and their predecessor in title had established title to the “field road,” and any error was only harmless error as it did not result in a miscarriage of justice. See supra note 2. Accordingly, this issue is without merit.

¶ 36. THE JUDGMENT OF THE CHICKASAW COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Jean M. Smith owned the neighboring property to the Johnsons' property.

      . Several of the alleged errors regarding the findings of facts are generalizations and inferences of the testimonies given or misstatements of the parties and actions involved. We find that these errors constitute harmless error as they have no bearing on the ultimate disposition of this case. See Mathews v. Hale, 767 So.2d 231, 234(¶ 9) (Miss.Ct.App.2000). We only note them for thoroughness.

      . Because we have extinguished the Hills’ issue regarding the surveyors, we will focus our attention on whether a claim for adverse possession was established.

      . It is immaterial that Morgan Davis granted an easement on the property, as "possession may be exclusive notwithstanding the land is subject to right which are mere easements.” 2 C.J.S. Adverse Possession § 62 (2003).


author: CARLTON, J.,

text:
    Lonzie Earl NICHOLS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-02256-COA.
    Court of Appeals of Mississippi.
    July 21, 2009.
    Rehearing Denied Nov. 10, 2009.
    Certiorari Denied Feb. 11, 2010.

      Jim Waide, Tupelo, Attorney for Appellant.
    Office of the Attorney General by Charles W. Maris, Attorney for Appellee.
    Before KING, C.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Lonzie Earl Nichols was convicted in the Clay County Circuit Court for the murder of Kiki Johnson. He was sentenced to life in the custody of the Mississippi Department of Corrections.

¶ 2. Nichols argues on appeal that he is, at most, guilty of manslaughter. He asks this Court to reverse his murder conviction and remand his case for sentencing for the crime of manslaughter. We find no error and affirm Nichols’s conviction and sentence for murder.

FACTS

¶ 3. On July 26, 2004, Johnson, Roshon-da Shields, and Nikki Jones spent the evening drinking beer at Terry Baptist’s home in Crawford, Mississippi. With Jones driving, the three women left Crawford around 2:00 a.m., traveling north on Highway 45 in Jones’s car. Jones and Nichols had recently ended a seven-year relationship, and Jones had begun dating Baptist.

¶4. After the women got on Highway 45, Shields saw Nichols’s car approaching them from behind. Nichols flashed his headlights at the women and tried to convince Jones to stop her car. Nichols even pulled up beside their car in his effort to persuade Jones to pull over. Jones refused to stop her car. Nichols then passed Jones’s car and drove ahead of them on Highway 45. Jones continued driving northbound on Highway 45. Nichols exited Highway 45 and then pulled onto the on-ramp for Highway 45 to wait for Jones’s car to pass.

¶ 5. According to Shields’s testimony, Nichols suddenly reappeared behind the women. Nichols then crashed his car into the back of Jones’s car, causing Jones to lose control of her vehicle. The vehicle rolled over after the crash, and Johnson was ejected from the vehicle. She died at the scene. Shields suffered severe injuries as a result of the collision and subsequent rollover; thus, she has no other memory regarding the incident.

¶ 6. A Clay County grand jury indicted Nichols for depraved-heart murder pursuant to Mississippi Code Annotated section 97-8-19 (Rev.2006). After trial, the jury convicted Nichols of murder. He was sentenced to life in the custody of the Mississippi Department of Corrections.

¶ 7. Nichols now appeals his conviction and sentence. Nichols raises the following assignments of error: (1) the evidence presented at trial is insufficient to support a murder conviction; (2) the trial court’s failure to define “depraved heart” for the jury constituted plain error; (3) his punishment for murder rather than manslaughter violates the Equal Protection and Due Process clauses of the Fourteenth Amendment to the United States Constitution; (4) the trial court allowed inadmissible hearsay testimony; and (5) he received ineffective assistance of counsel. Finding no error, we affirm Nichols’s conviction and sentence.

DISCUSSION

I. Whether the verdict was supported by sufficient evidence.

¶ 8. Nichols argues that the evidence presented by the State was insufficient to support a conviction of depraved-heart murder. Nichols contends that the evidence presented against him at trial was sufficient to support only a manslaughter conviction. To support this assignment of error, Nichols points out that the State’s witnesses and the defense witnesses presented two different theories of the events leading up to the collision between Nichols’s car and Jones’s car. Further, Nichols argues that the State’s expert witness gave opinion testimony that lacked a scientific basis. Nichols argues under this assignment of error that the evidence presented against him at trial supports a conviction of culpable-negligence manslaughter, not a conviction for murder. Nichols would have this Court reverse his conviction and remand for sentencing for manslaughter.

¶ 9. This Court has articulated the following standard of review in challenges to the sufficiency of the evidence:

In reviewing whether the evidence supporting a jury verdict is legally sufficient, this Court does not determine whether from the evidence we would have voted to convict or acquit. Rather, we view the evidence in the light most favorable to the prosecution and determine whether a rational juror could have concluded beyond a reasonable doubt that all elements of the crime were satisfied. The proper remedy for insufficient evidence is for the Court to reverse and render.

Readus v. State, 997 So.2d 941, 944(¶ 18) (Miss.Ct.App.2008) (internal citations omitted).

¶ 10. Viewing the evidence in the light most favorable to the prosecution, we find ample evidence in the record to support Nichols’s conviction for murder. Shields’s testimony supported the State’s contention that Nichols intentionally rear-ended Jones’s car. Shields testified that Nichols “kept following real close up on us, and that’s when he went into us.... He was on her bumper.... She lost control, and all of us just started screaming.”

¶ 11. The State’s expert witness, Trooper Larry Smith, corroborated Shields’s testimony. Trooper Smith testified, based on his reconstruction of the accident, that Jones’s car was traveling at approximately sixty miles per hour at the time of the collision and that Nichols’s car was traveling at approximately ninety-six miles per hour. Trooper Smith testified that the marks the two cars left on the highway indicated that Nichols’s car rear-ended Jones’s car, and that Jones had not applied her brakes prior to the collision.

¶ 12. Baptist testified that he spoke on the phone with Jones approximately three different times during her drive from his home in Crawford before the collision occurred. His testimony supports the State’s theory of the case. Baptist testified that Jones seemed “scared” when he talked to her, and that the other women in the car were screaming and seemed scared. Baptist testified that “[Jones] was saying that [Nichols] was trying to get her to pull over but she wouldn’t pull over.... Like I said, [Johnson]-they went to screaming, then I just heard a crash. That was it.”

¶ 13. We have carefully reviewed the record in this case. Examining the evidence in a light favorable to the prosecution, we find that a rational juror could find Nichols guilty of depraved-heart murder beyond a reasonable doubt. This Court has noted that factual disputes at trial “are properly resolved by the jury and do not mandate a new trial.” Jones v. State, 791 So.2d 891, 895(¶ 12) (Miss.Ct.App.2001) (quoting Benson v. State, 551 So.2d 188, 193 (Miss.1989)). Therefore, this issue is without merit.

II. Whether the trial court erred in failing to define “depraved heart” in the jury instructions.

¶ 14. Nichols alleges in his second assignment of error that the trial court’s failure to define the term “depraved heart” for the jury constitutes reversible error, because it left the jury to speculate regarding the difference between depraved-heart murder and culpable-negligence manslaughter. This Court has articulated the following standard of review for challenges to jury instructions: “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Johnson v. State, 823 So.2d 582, 584(¶ 4) (Miss.Ct.App.2002) (citation omitted).

¶ 15. The trial court gave the jury the following instruction for deliberations:

The Court instructs the Jury that if you find from the evidence in this case beyond a reasonable doubt that on or about July 27, 2004, the Defendant, Lon-zie Nichols, did, unlawfully, willfully, and feloniously,
—kill Kiki Johnson, a human being, —without authority of law and not in necessary self-defense,
—while engaged in the commission of an act imminently dangerous to others and evincing a depraved heart, disregarding the value of human life,
—whether or not he had any intention of actually killing any person, then you shall find the Defendant guilty as charged of Murder.
If you unanimously find that the State has failed to prove any of the above elements of the crime of Murder, you may proceed in your deliberations to consider the lesser charge of Manslaughter.
The Court instructs the Jury that the killing of a human being by the act, procurement or culpable negligence of another is Manslaughter.
Therefore, if you find from the evidence in this case beyond a reasonable doubt, that on or about July 27, 2004, the Defendant, Lonzie Nichols, unlawfully, willfully[,] and feloniously,
—caused the death of Kiki Johnson, a human being,
—by any act,
—procurement,
—or culpable negligence that exhibited or manifested a wanton or reckless disregard for the safety of human life,
—but done without a depraved heart, without authority of law, and not in necessary self[-]defense, then you shall find the Defendant guilty of the lesser[-]included charge of Manslaughter.
If the State has failed to prove any one or more of the above elements of Manslaughter beyond a reasonable doubt, then you should find the Defendant not guilty.

(Emphasis added).

¶ 16. Nichols argues that under the trial court’s instructions, whether he was guilty of depraved-heart murder or culpable-negligence manslaughter depended solely on whether he had a “depraved heart” at the time of the collision. Therefore, he argues that the trial court should have instructed the jury on the definition of “depraved heart.”

¶ 17. Nichols did not object to the jury instructions at trial, nor did he offer an instruction defining the term “depraved heart.” Ordinarily, a “party’s failure to object to jury instructions at trial procedurally bars the issue on appeal.” Hawthorne v. State, 835 So.2d 14, 19(¶ 20) (Miss.2003) (citing Walker v. State, 729 So.2d 197, 202(¶ 19) (Miss.1998)). However, in cases where a party fails to raise an objection in the trial court, he may still assert the error on appeal by arguing that it constitutes plain error. Waldon v. State, 749 So.2d 262, 267(¶ 14) (Miss.Ct.App.1999) (citing Brown v. State, 690 So.2d 276, 297 (Miss.1996)). In order to show plain error and prevail on this assignment of error, Nichols must show that a substantial right was affected by the trial court’s failure to define “depraved heart” for the jury. See id. We find that Nichols failed to meet this burden.

¶ 18. Mississippi Code Annotated section 97-3-19(l)(b) (Rev.2006) provides the following definition of depraved-heart murder:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual[.]

¶ 19. The second part of the jury instruction set forth the elements of manslaughter for the jury. Mississippi Code Annotated section 97-3-47 (Rev.2006) defines manslaughter as follows: “Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.” The instructions given to the jury adequately tracked the language of the murder and manslaughter statutes and contained language setting forth the differing degrees of culpability required for each offense. See McDowell v. State, 984 So.2d 1003, 1013(¶ 34) (Miss.Ct.App.2007). Moreover, upon the defense’s request, the trial court instructed the jury as to the definition of culpable negligence and also as to the excuse of accident. These instructions were requested by the defense and appear to place emphasis or attention strategically on the lesser offense of manslaughter and the exonerating excuse of accident.

¶ 20. In Montana v. State, 822 So.2d 954, 966-67(¶ 55) (Miss.2002), the supreme court upheld Joseph Scott Montana’s depraved-heart murder conviction, despite his challenges to a jury instruction nearly identical to the instruction in the case before this Court. The supreme court found no merit to Montana’s argument that the trial court erred in granting a jury instruction which failed to define “depraved heart” in the murder portion and “negligence” or “gross negligence” in the manslaughter portion of the instruction. Id. The supreme court stated the following regarding Montana’s argument:

This argument is without merit. The instruction speaks of a depraved heart as a disregard for human life. The instruction also states that the negligence required was “gross” negligence, which was properly defined as conduct “so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life.”

Id.

¶ 21. Like the jury instruction in Montana, the instruction given to the jury in Nichols’s case informed the jury that to find Nichols guilty of depraved-heart murder, they had to find that he caused Johnson’s death “while engaged in the commission of an act imminently dangerous to others and evincing a depraved heart, disregarding the value of human life. ...” (Emphasis added). Likewise, to find Nichols guilty of the lesser offense of manslaughter, the jury had to find that Nichols caused Johnson’s death “by any act, procurement, or culpable negligence that exhibited or manifested a wanton or reckless disregard for the safety of human life, but done without a depraved heart....” (Emphasis added).

¶ 22. The supreme court has articulated the following standard of review on challenges to jury instructions:

This Court does not review instructions in isolation. If the instructions given provide correct statements of the law and are supported by the evidence, there is no prejudice to the defendant. In determining whether reversible error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the ease and create no injustice, no reversible error will be found.

Johnson v. State, 792 So.2d 253, 258(¶ 16) (Miss.2001). Therefore, in viewing the jury instructions actually given as a whole, including an instruction on depraved-heart murder that tracks the statutory language found in section 97-3-19, we cannot find the lack of further definition of depraved-heart murder to be error in this case. Furthermore, we find no duty of the trial court to give, sua sponte, further definition of depraved-heart murder to the jury. This issue is without merit.

III. Whether punishing Nichols for depraved-heart murder when the same conduct constitutes culpable-negligence manslaughter violates his rights under the Equal Protection and Due Process Clauses of the United States Constitution and Article 3, Section 14 of the Mississippi Constitution.

¶ 23. In his third assignment of error, Nichols alleges that culpable-negligence manslaughter and depraved-heart murder are indistinguishable. Under Mississippi Code Annotated section 97-3-21 (Rev.2006), a conviction for murder carries a mandatory life sentence. A conviction for manslaughter, on the other hand, carries a maximum sentence of twenty years pursuant to Mississippi Code Annotated section 97-3-25 (Rev.2006).

¶ 24. Nichols’s argument that depraved-heart murder and culpable-negligence manslaughter are indistinguishable provides the basis for his equal protection argument and is essentially the same as his argument that the evidence against him was legally insufficient to support his conviction. Nichols’s argument fails, however, as the supreme court has previously held that depraved-heart murder and culpable-negligence manslaughter are separate crimes with differing states of culpability. Windham v. State, 602 So.2d 798, 801 (Miss.1992). In Windham, the supreme court distinguished the two crimes with the following statement: “Depraved-heart murder and culpable-negligence manslaughter are distinguishable simply by degree of mental state of culpability. In short, depraved-heart murder involves a higher degree of recklessness from which malice or deliberate design may be implied.” Id.

¶ 25. Though depraved-heart murder and culpable-negligence manslaughter share some elements, the murder statute differs from the manslaughter statute in the level of culpability necessary to complete the crimes. See id. Although Nichols does not argue that his conviction for murder rather than manslaughter constituted double jeopardy, we find the test established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), instructive in determining whether, as Nichols alleges, depraved-heart murder and culpable-negligence manslaughter are indistinguishable crimes.

In Ramage v. State, 914 So.2d 274, 276(¶ 4) (Miss.Ct.App.2005), this Court explained the Blockburger test as follows:

Where a defendant is charged with violating two or more separate statutory provisions, this test “requires an inquiry into whether each offense charged requires proof of an element not contained in the other.” Blockburger, 284 U.S. at 299, 52 S.Ct. 180. Where the same elements are required by each, they are considered the same offense, and double jeopardy bars additional punishment. Id. However, where different elements are required by each offense, double jeopardy does not prevent prosecution and punishment for both offenses. Id.; see also Houston [v. State], 887 So.2d [808,] [] 814(¶ 24) [(Miss.Ct.App.2004) ] (“[A] criminal defendant may be prosecuted for more than one statutory offense arising out of a basic set of facts where each offense charged requires proof of a different element”).

¶26. In finding Nichols guilty of depraved-heart murder rather than culpable-negligence manslaughter, the jury had to determine that Nichols’s conduct indicated that he acted with a depraved heart while disregarding the value of human life. In order to find Nichols guilty of manslaughter, the jury had to find that Nichols acted negligently and showed a disregard for the safety of human life. Thus, we find that Nichols’s argument that the same conduct constituted both manslaughter and depraved-heart murder fails. Therefore, this issue is without merit.

IV. Whether the trial court erred in admitting hearsay testimony.

¶ 27. Nichols’s fourth assignment of error alleges that the trial judge erred in allowing certain testimony from witnesses that Nichols claims amounted to inadmissible hearsay testimony. We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Smith v. State, 986 So.2d 290, 295(¶ 12) (Miss.2008).

¶28. First, Nichols argues that Baptist’s testimony, regarding statements Baptist overheard Johnson make while Baptist was on the phone with Jones, should have been excluded from evidence as inadmissible hearsay. At trial, Baptist testified that Jones was “scared” before the collision with Nichols, and she did not want to pull her car over. He further testified that he heard Johnson in the background stating, “This crazy blank, blank, blank going to run us ... trying to run us off the road.” Nichols made an objection to Baptist’s testimony, which the trial court overruled on the basis that the State offered the statement to show the state of mind of Jones and Johnson.

¶ 29. The trial court did not err in allowing Baptist’s testimony to show the women’s then-existing state of mind. Mississippi Rule of Evidence 808 provides exceptions to the hearsay rule, even when the declarant is available as a witness. Rule 803 provides, in part, the following exceptions:

(1) Present Sense Impression. A statement describing or explaining an event or condition made while the de-clarant was perceiving the event or condition or immediately thereafter.
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of [a] declarant’s will.

¶ 30. The trial judge allowed the statements as evidence of the women’s state of mind communicated as the women experienced the events leading up to the collision. We find no abuse of discretion in the trial judge’s admission of Baptist’s testimony. See Wright v. State, 958 So.2d 158, 167-68(¶ 26) (Miss.2007) (finding no error in trial court’s admission of a rape victim’s out-of-court statement made immediately after the rape, because under Rule 803(1) and (3), the statements were not excluded by the hearsay rule).

¶ 31. Nichols further claims that the State offered hearsay testimony from Shields to prove that Jones was fearful of Nichols prior to the incident. The State questioned Shields regarding a previous incident between Nichols and Jones. However, the trial judge sustained Nichols’s objections and prevented Shields from testifying about the incident.

¶ 32. Mississippi Rule of Evidence 801(c) defines hearsay as “a statement, other than one made by the declar-ant while testifying at the trial or the hearing, offered in evidence to prove the truth of the matter asserted.” We find that the State failed to elicit this testimony, despite attempts to admit the testimony. Shields testified that she believed Jones feared Nichols based on Shields’s personal knowledge of Jones and of the statements made by Jones regarding the prior incident between Nichols and Jones. However, Shields never testified regarding what Jones actually told her. Furthermore, we find that the State’s attempts to introduce this testimony by Shields was an effort to show Jones’s state of mind, not to prove the truth of the matter asserted in any previous statement. Thus, the attempted testimony by Shields does not meet the definition of hearsay. See M.R.E. 801(c).

¶ 33. We find no abuse of discretion in the trial court’s ruling to admit the testimony. Baptist’s testimony falls under the exceptions to the hearsay rule enumerated in Rule 803, and Shield’s testimony does not satisfy the definition of hearsay in Rule 801(c) to be excluded. This issue is without merit.

Y. Whether Nichols received ineffective assistance of counsel.

¶ 34. Nichols’s final assignment of error alleges that he received ineffective assistance of counsel at trial. To support this contention, Nichols offers the following examples of his trial counsel’s perceived deficiencies: (1) trial counsel failed to object to the testimony from the State’s expert witness; (2) trial counsel failed to request an instruction defining “depraved heart”; (3) trial counsel failed to call certain witnesses for the defense; and (4) trial counsel failed to argue that the evidence justified only a manslaughter conviction.

¶ 35. For an ineffective assistance of counsel claim to succeed, a defendant must satisfy the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Stringer v. State, 627 So.2d 326, 328 (Miss.1993). The test requires that the defendant first show that counsel was deficient; he must then show that the deficiency prejudiced his defense. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). Further, the defendant must overcome a “strong but rebutta-ble presumption that counsel’s conduct falls within a broad range of reasonable professional assistance.” Id. (citing Gilli-ard v. State, 462 So.2d 710, 714 (Miss.1985)).

¶ 36. Upon review, the record reflects no deficiencies on the part of the trial counsel. This Court has held that the “[e]onduct of trial counsel is measured toward the view that he has wide latitudinal discretion in effectuating reasonable representation on behalf of his client and that the decisions made at trial are strategic.” Scott v. State, 742 So.2d 1190, 1195(¶ 10) (Miss.Ct.App.1999) (citing Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). Furthermore, “[c]ounsel’s choice of whether or not to file certain motions, call certain witnesses, ask certain questions, or make certain objections fall[s] within the ambit of trial strategy.” Id. at 1196(¶ 14) (citations omitted). This Court rarely second guesses trial counsel regarding matters of trial strategy. Shorter v. State, 946 So.2d 815, 819(¶ 15) (Miss.Ct.App.2007).

¶ 37. Even if trial counsel were deficient, Nichols still fails to satisfy the second prong of the Strickland test, which requires a showing that counsel’s deficient performance prejudiced his defense. To satisfy this part of the test, Nichols would have to show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Ransom v. State, 919 So.2d 887, 890(¶ 12) (Miss.2005) quoting Foster v. State, 687 So.2d 1124, 1130 (Miss.1996). The deficiencies Nichols alleges do not rise to this level.

¶ 38. Our review of the record as a whole, without any further factual inquiry, reflects no obvious deficient performance, on the face of the record, by Nichols’s trial counsel. A determination as to whether defense counsel’s failure to pursue a defense strategy or call certain witnesses affected the outcome of the trial would involve factual inquiries that are not obvious on the face of the cold record on direct appeal. Williams v. State, 791 So.2d 895, 898-99 (Miss.Ct.App.2001). We find, in this situation, where the record reflects no obvious ineffective assistance of counsel on the face of the record that the better practice is to deny relief on direct appeal without prejudice to Nichols’s right to pursue relief in a post-conviction relief proceeding. Id. In a post-conviction relief proceeding, Nichols would have an opportunity to submit affidavits in support of his petition with factual information for the trial court to evaluate. Id. This would permit the trial court to more accurately assess the prejudice, if any, to the defense by counsel’s alleged deficiencies that are not evident from our review of a cold record. This issue is without merit.

¶ 39. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND MAXWELL, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT.

      . Nichols testified that he wanted to talk to Jones about resuming their relationship. Nichols and Jones did resume their relationship and married before Nichols's trial.

      . Nichols was not charged with murder and manslaughter. Rather, the jury was instructed to consider the lesser-included offense of manslaughter in the event that they found Nichols not guilty of murder.