author: WINDHORST, J.

text:
    Dale Anthony HUNTER v. Michael D. TERREBONE and ANPAC Louisiana Insurance Company
    NO. 18-CA-134
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, DALE AND DIANNE HUNTER, Jacqueline F. Maloney, Metairie, Erin A. Fisher
    COUNSEL FOR DEFENDANT/APPELLEE, MICHAEL D. TERREBONE & ANPAC LOUISIANA INSURANCE COMPANY, James R. Nieset, Jr., Kristopher Michael Gould, Jade E. Ennis, New Orleans.
    Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

Appellant, Dale Anthony Hunter ("Mr. Hunter" or "plaintiff"), seeks review of the jury verdict, in his favor and against appellees, Michael Terrebonne ("Mr. Terrebonne") and ANPAC Louisiana Insurance Company ("ANPAC"), awarding him $35,000.00 in general damages and $280.00 for past medical expenses. For the following reasons, we affirm the jury verdict.

FACTS AND PROCEDURAL HISTORY

On July 14, 2012, Mr. Hunter and Mr. Terrebonne played golf together with a foursome at the Avondale TPC Golf Course in Jefferson Parish, Louisiana. After making a bad shot, Mr. Terrebonne got upset and threw his golf club. The golf club flew through the air, sailed off to the left, and hit Mr. Hunter above his right knee on the front right portion of his thigh. Although Mr. Hunter initially fell to the ground in pain after the incident, he was able to finish playing the remaining fourteen holes of golf.

Mr. Hunter filed suit against Mr. Terrebonne and his liability insurer, ANPAC, alleging that he sustained serious injuries to his "right leg, right thigh, right knee, right calf, right lower extremity and other serious injuries to his mind and body." Mr. Hunter sought damages for pain and suffering, medical expenses, loss of income, and loss of earning capacity. The case proceeded to trial.

At trial, Mr. Hunter and his wife testified that the day after the incident, he was in severe pain, his entire leg was severely bruised, and that he could barely walk. Plaintiff, however, did not seek medical treatment until a few days after the trauma at an urgent care facility. The doctor at this facility told him he had suffered a trauma and suggested he have it examined by his regular doctor. About two weeks after the incident, on August 1, 2012, Mr. Hunter saw his regular doctor, Dr. Daniel Gallagher, an orthopedic surgeon.

Prior to this incident, Dr. Gallagher had treated plaintiff since at least 2006 for left knee pain caused by chronic tendonitis and since 2009 for right knee pain caused by arthritis. Medical records indicate that in 2009, Mr. Hunter's right knee had signs of a degenerative meniscus, which means it was not in normal condition. Dr. Gallagher's deposition was introduced into evidence at trial.

Dr. Gallagher testified that, on August 1, 2012, he found, based on his examination Mr. Hunter's right knee, that it was "basically the same" as during previous visits and that, although there was tenderness, there was no indication of a meniscus tear in the right knee at this visit. Medical records from this visit indicate Mr. Hunter had right knee pain, right thigh pain and swelling and ecchymosis in the right thigh. Dr. Gallagher testified that he thought Mr. Hunter's injury was "simply a contusion from being struck" and that this "was the cause of his thigh and knee pain."

Soon after Mr. Hunter saw Dr. Gallagher, Hurricane Isaac struck the New Orleans area, and the evidence showed that Mr. Hunter had to prepare his home for the hurricane. According to medical records, after the hurricane, Mr. Hunter had an MRI and saw Dr. Gallagher again on September 10, 2012. At this visit, Mr. Hunter told Dr. Gallagher "he had increased pain and swelling in the right knee with hurricane activity." Plaintiff's first post-Isaac examination did reveal new findings, including more tenderness and a positive McMurray test, which is used to test for damage or tears to the meniscus. The MRI showed a ligament strain and a medial meniscus tear which had not been there before.

As to whether the golf trauma aggravated or was related to the arthritis and the tear, Dr. Gallagher testified as follows: "It's hard to say. When you have a direct blow to the body, the body reacts to that. And what I would picture would be some sort of a twisting motion to the knee in reaction to being struck or trying to avoid being struck. That twisting motion could have been what caused the degenerative meniscus to finally tear and flare up and aggravate the preexisting arthritis as well." Dr. Gallagher also testified that the hurricane preparation activity could have caused a meniscus tear if he suffered a twisting motion while working. Dr. Gallagher performed surgery on Mr. Hunter's knee on October 2, 2012.

In February 2013, Dr. Gallagher referred Mr. Hunter to Dr. Timothy Finney, a sports medicine specialist, because his knee was not improving. Dr. Finney testified that he thought the meniscus tear was caused by the golf injury because the MRI from before this incident and after this incident changed in that the MRI showed a meniscus tear after the golf incident. He also testified that the direct blow didn't cause the meniscus tear, but he thought Mr. Hunter reported stumbling and twisting, and that a twisting injury can usually cause a meniscus tear. In addition, Dr. Finney testified that the hurricane preparation activity could also cause a meniscus tear. Although Dr. Finney believed, based on information available to him, that the golf trauma caused the meniscus tear, he further testified that Mr. Hunter's arthritic knee condition was ongoing, that the golf club aggravated it, and that not all of Mr. Hunter's ongoing knee problems were related to that incident.

Two eyewitnesses to the golf incident testified at trial. When questioned about how Mr. Hunter fell after being hit by the golf club, Mr. Errol Martin testified that he fell to the back and to the side and then laid on his back. In this regard, Mr. Barry Thibodeaux also testified that after being hit by the club, Mr. Hunter kind of laid back on his back and that he would not classify it as a fall.

After a trial, the jury concluded that Mr. Terrebonne's conduct caused injury to Mr. Hunter and awarded Mr. Hunter $280.00 in medical expenses and $35,000 in general damages. The jury declined to award damages for future medical expenses, lost wages or loss of earning capacity. Judgment was entered in accordance with the jury interrogatories. Mr. Hunter filed a motion for judgment notwithstanding the verdict, which the trial court denied. Mr. Hunter now appeals, contending the jury erred in failing to award all of his past medical expenses, future medical expenses, lost wages, loss of earning capacity and an abusively low amount of general damages. For the following reasons, we affirm the jury verdict.

LAW AND ANALYSIS

Medical Expenses

Mr. Hunter contends that there is no reasonable basis for the jury's award of $280.00 in special damages for past medical expenses given that he submitted past medical expenses totaling $66,812.94 for injuries caused by the golf club trauma. The defense asserts that Mr. Hunter gave inconsistent accounts of his own alleged injuries, and that the jury awarded only those believed to be caused by the golf trauma, namely those to the right thigh and not the right knee. Based on the following, we affirm the jury's medical expenses award.

In a personal injury suit, the plaintiff bears the burden of proving a causal connection between the accident and the alleged injuries. Stevenson v. Serth, 14-846 (La. App. 5 Cir. 3/25/15), 169 So.3d 612, 615, citing Stoll v. Allstate Ins. Co. , 11-1006, (La. 5/8/12), 95 So.3d 1089, 1095. The test for determining the causal relationship between the accident and subsequent injuries is whether the plaintiff proved, through medical testimony, that it was more probable than not that the accident caused the subsequent injuries. Mart v. Hill , 505 So.2d 1120, 1127-1128 (La. 1987).

In making conclusions, the factfinder is not bound to accept a plaintiff's perception, or any witness' perception, of the nature and extent of plaintiff's injuries. Ladner v. Gov't Employees' Insurance Co ., 08-0323 (La. App. 4 Cir. 10/8/08), 992 So.2d 1098, 1102, writ denied , 08-2864 (La. 2/6/09), 999 So.2d 783. The factfinder can reject all of the testimony of any witness or may accept part and reject part of a witness' testimony. Stevenson, 169 So.3d at 616. When findings are based on credibility determinations, the manifest error or clearly wrong standard applies and demands great deference to the factfinder's conclusions, for only the factfinder can be aware of the variations in demeanor and tone that bear so heavily on the veracity of the witness' testimony. Id.

Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, where conflict exists in the testimony. Purvis v. Jefferson Par. Hosp. Serv., 16-434 (La. App. 5 Cir. 12/21/16), 209 So.3d 363, 372-73, citing Goudia v. Mann, 11-960 (La. App. 5 Cir. 5/22/12), 98 So.3d 364, 372, writ denied, 12-1423 (La. 10/8/12), 99 So.3d 1007. The factfinder evaluates the credibility of both expert and lay witnesses to determine the most credible evidence. Id.

Medical records indicate plaintiff first sought medical evaluation for the golf trauma to his right thigh a few days after the trauma from an urgent care facility, and then saw his regular doctor, Dr. Gallagher, approximately two weeks later. Prior to this incident, Dr. Gallagher had treated plaintiff for right knee pain since 2009. Dr. Gallagher testified that at the first visit following the golf incident, plaintiff's right knee was "basically the same" as during previous visits and that there was no indication of a meniscus tear in the right knee at this visit.

At trial, the defense argued that the meniscus tear to plaintiff's knee was caused by his hurricane preparation work. Dr. Gallagher first examined plaintiff after the golf trauma on August 1, 2012. Soon thereafter, Hurricane Isaac struck the area, and plaintiff had to prepare his home for the hurricane. According to medical records, plaintiff saw Dr. Gallagher again after the hurricane and told Dr. Gallagher he had increased knee symptoms after the hurricane. Indeed, plaintiff's first post-Isaac examination showed new findings, including more tenderness and a positive McMurray test, which is used to test for damage or tears to the meniscus. Both medical experts, Dr. Gallagher and Dr. Finley, testified that the hurricane activity could cause a meniscus tear.

Further, it can be concluded from the record that the jury could have questioned some of plaintiff's testimony. The medical evidence established that for the golf incident to cause a meniscus tear, plaintiff would have had to suffer a twisting type injury, and not just a direct injury. Although plaintiff testified at trial that he suffered a violent twisting injury, he did not describe it as twisting in his deposition. In addition, the eyewitnesses who testified at trial did not describe any twisting motion by plaintiff when he fell.

Moreover, both medical experts testified that given plaintiff's knee condition before the golf incident, he likely would have suffered from knee problems regardless of the golf trauma. Specifically, the medical records showed that plaintiff had a history of arthritis in his right knee and degeneration of the meniscus dating back to 2009. The medical testimony indicated that plaintiff's ongoing arthritic process continually progressed over time and required extensive treatment, while the golf trauma caused a short term injury.

Based on the testimony and evidence, reasonable persons could reach different conclusions as to whether the golf incident caused the meniscus tear to plaintiff's right knee or only an injury to plaintiff's right thigh. The jury chose to accept the defense's version, which is that the hurricane activity caused the meniscus tear to plaintiff's knee and the aggravated arthritis, while the golf trauma only injured the right thigh. The record does not show that the facts and testimony so overwhelmingly favor plaintiff's assertion that reasonable persons could not have rendered a verdict in favor of defendants. Thus, we do not find the jury's award of $280.00 in medical expenses or its refusal to award future medical expenses manifestly erroneous.

Lost Wages and Loss of Earning Capacity

Plaintiff also asserts the jury erred in not awarding him lost wages or loss of earning capacity damages. A plaintiff seeking damages for lost wages bears the burden of proving lost earnings, as well as the duration of time missed from work due to the accident. Purvis, 209 So.3d at 378. To obtain an award for future lost wages or earning capacity, a plaintiff must present medical evidence indicating with reasonable certainty that there exists a residual disability causally related to the accident. Id.

The jury found that plaintiff failed to prove that he lost any work due to the golf trauma to his right thigh or any residual disability causally related to the incident. Plaintiff did not introduce any wage record, tax records or other documentation establishing pre-injury and post-injury earnings. There was inconsistent testimony regarding one disaster clean-up contract that plaintiff allegedly could not accept because of his injuries. Further, there was no medical testimony that plaintiff was unable to work or had any residual disability limiting his ability to work.

Accordingly, considering the evidence and testimony, we cannot conclude that the jury's finding that plaintiff did not prove he was entitled to past or future lost wages, or loss of earning capacity to be manifestly erroneous. Thus, we find no error in the jury's denial of plaintiff's claims for lost wages or loss of earning capacity. This assignment of error is without merit.

General Damages

Mr. Hunter claims that the jury's general damage award of $35,000 is abusively low considering his injuries. The assessment of the appropriate amount of general damages, by a trial judge or jury, is a determination of fact, one entitled to great deference on review. Joseph v. Netherlands Ins. Co., 15-549 (La. App. 5 Cir. 2/24/16), 187 So.3d 517, 519. In reviewing a general damage award, Louisiana appellate courts do not consider what they think is an appropriate award, but rather review the exercise of discretion by the trier of fact. Id. Before a court of appeal can disturb an award made by a fact finder, the record must clearly reveal that the trier of fact abused its discretion in making its award. Thibodeaux v. Donnell, 16-570 (La. 1/20/17), 219 So.3d 274, 278.

The jury verdict indicates the jury found that plaintiff, as a result of the golf trauma, suffered a right thigh bruise, which only required two doctor visits. In addition, Dr. Finney testified that the golf trauma likely caused a short term injury. Given the conservative medical treatment associated with the injury at issue here, we find the record does not clearly reveal that the jury awarded an abusively low amount of general damages. Therefore, this assignment of error lacks merit.

Motion for Judgment Notwithstanding the Verdict/New Trial

Plaintiff argues that the trial court erred in denying his post-trial motions for JNOV and/or new trial on the issue of quantum and/or additur.

In reviewing the denial of a motion for judgment notwithstanding the verdict, this Court has stated the following:

JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that when there is a jury, the jury is the trier of fact.

Buckheister v. U.S. Envtl. Servs., L.L.C., 11-1148 (La. App. 5 Cir. 5/31/12), 97 So.3d 414, 420-21, writ denied, 12-1462 (La. 10/8/12), 98 So.3d 861.

As discussed above, having reviewed the testimony and evidence presented at trial, we find that reasonable persons could reach different conclusions as to whether the golf incident caused plaintiff's knee problems or only an injury to plaintiff's right thigh. The jury verdict indicates the jury found the defense's position more reasonable, specifically that the golf trauma only injured plaintiff's right thigh. The record does not show that the facts and testimony so overwhelmingly favor plaintiff's position that reasonable persons could not have rendered a verdict in favor of defendants. Accordingly, we find no error in the trial court's denial of plaintiff's motion for judgment notwithstanding the verdict.

Plaintiff further argues that the trial court erred in denying the motions for new trial on the sole issue of quantum and/or additur. La. C.C.P. art. 1814 provides a procedure for additur or remittitur of the verdict or judgment in cases tried before a jury when the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only. Buckheister v. U.S. Envtl. Servs., L.L.C., supra. For the reasons discussed above relative to the jury's damage award, and the refusal to award certain damages, the record does not support a finding that the jury's award was so inadequate that a new trial should be granted. We therefore find no error in the trial court's denial of plaintiff's motion for new trial.

CONCLUSION

For the foregoing reasons, we affirm the jury's verdict.

AFFIRMED

      Defendants did not appeal the amount of the general damage award.


source: Caselaw Access Project

author: COLEMAN, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Timothy L. NUNN a/k/a Timothy Louis Nunn a/k/a Timothy Andre Nunn a/k/a Timothy Johnson v. STATE of Mississippi
    NO. 2018-KA-00198-SCT
    Supreme Court of Mississippi.
    February 14, 2019
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN T. COOK, GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA AINSWORTH, JACKSON
    BEFORE KITCHENS AND KING, P.JJ., AND COLEMAN, J.
   COLEMAN, JUSTICE, FOR THE COURT:

¶1. A Harrison County jury found Timothy Nunn guilty of unlawful possession of a firearm by a convicted felon. The trial court sentenced Nunn as a habitual offender under Mississippi Code Section 99-19-81 (Supp. 2018) to ten years without the possibility of parole or early release. Nunn filed a notice of appeal following the trial court's denial of his motion for a new trial. Finding no arguable issue to raise on appeal, Nunn's appellate attorney filed a brief in accordance with Lindsey v. State , 939 So.2d 743 (Miss. 2005). Discerning no reversible error or issue warranting supplemental briefing, we affirm Nunn's conviction and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

¶2. On January 27, 2015, Detectives Joey Wuest and Larry McCook of the Gulfport Police Department observed Nunn driving without a seatbelt. The detectives initiated a traffic stop, but Nunn continued to drive for several blocks. Detective Wuest observed Nunn reaching toward the passenger area and backseat of the vehicle. After Nunn had stopped his vehicle, Detective Wuest approached the passenger side of the vehicle, while Detective McCook approached the driver's side of the vehicle.

¶3. Detective Wuest saw a firearm on the rear center of the floorboard. Officer Wuest notified Detective McCook about the firearm. Meanwhile, Nunn exited the vehicle and approached Detective McCook. Nunn was handcuffed immediately. In addition to Nunn, a male passenger was seated in the front passenger seat, and a female occupant was seated in the back seat. The two passengers were ordered to exit the vehicle, and the loaded firearm was recovered from the vehicle.

¶4. Nunn was arrested and interviewed at the Gulfport Police Department by Detectives Clayton Fulks and McCook. Nunn told the detectives that he knew the firearm was in the vehicle before he had been stopped by Detectives Wuest and McCook. Nunn admitted that he possessed the firearm. Nunn told the detectives that he handed the firearm to the passenger in the back seat. An audio recording of the interview was admitted into evidence and played for the jury.

¶5. Detective Fulks testified that Nunn had admitted that he knew the firearm was in the vehicle before being stopped. Detective Fulks also testified that Nunn acknowledged that he had handed the gun to a passenger in the vehicle.

¶6. Detective Wuest identified Nunn as the driver of the vehicle he had stopped on January 27, 2015. Detective Wuest also identified the firearm and rounds recovered from the rear floorboard of the vehicle. The firearm was tested at the Mississippi Forensics Laboratory, and it was determined that it was fully functional. The parties stipulated that Nunn was a convicted felon.

¶7. Nunn testified in his defense. Nunn testified that he had lied to law enforcement during his interview. Nunn also testified that he did not know the firearm was in the vehicle and that the firearm did not belong to him.

¶8. The jury found Nunn guilty of unlawful possession of a firearm by a convicted felon. The trial court sentenced Nunn as a habitual offender under Section 99-19-81 to ten years.

¶9. Nunn's appellate counsel filed a brief consistent with Lindsey , asserting that no arguable issues could be appealed. Nunn's appellate counsel served a copy of the brief on Nunn and requested that Nunn be allowed to file a pro se appellate brief. The Court granted appellate counsel's request and afforded Nunn the opportunity to file a pro se brief. Nunn failed to file a pro se brief.

ANALYSIS

¶10. Nunn's appellate counsel has complied with the Court's procedure set forth in Lindsey . Under Lindsey , the Court also has a duty to conduct an independent review of the record to determine whether any arguable issue is apparent, and, if so, to require supplemental briefing. Bowlin v. State , 154 So.3d 883, 886 (¶ 9) (Miss. 2015).

¶11. In the case sub judice , the State proved the requisite elements of unlawful possession of a firearm as defined in Mississippi Code Section 97-37-5 (Rev. 2014). The State also proved that Nunn is a habitual offender under Section 99-19-81. After reviewing the record and transcript, we discern no reversible error and find no viable issues to be argued on Nunn's behalf on appeal. Accordingly, we affirm Nunn's conviction and sentence.

¶12. AFFIRMED.

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


author: BARNES, J., FOR THE COURT:

text:
    Herman JACKSON Jr. a/k/a Herman Jackson III a/k/a Main a/k/a Main Love a/k/a Herman Jackson, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01240-COA
    Court of Appeals of Mississippi.
    July 17, 2018 Rehearing Denied October 23, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER, GEORGE T. HOLMES, JACKSON, JUSTIN T. COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, JACKSON
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. A Coahoma County jury convicted Herman Jackson of possession of marijuana of more than thirty grams but less than one kilogram with intent to sell, transfer, barter, distribute, or dispense. The trial court sentenced him to ten years in the custody of the Mississippi Department of Corrections (MDOC) as a subsequent drug offender and as a non-violent habitual offender. Jackson now appeals, raising several issues through his counsel and pro se. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In June 2013, a confidential informant (CI) told narcotics agents with the Clarksdale Police Department that Jackson possessed a large amount of marijuana and that he was selling it out of his home at 343-B Bolivar Street. Officers considered the CI reliable because the informant had provided information in numerous prior cases and was instrumental in helping to obtain prior convictions. Officers presented the CI's information to a judge and obtained a warrant to search Jackson's house. Officers then conducted "loose surveillance" on the house for approximately twenty-four hours, during which time Jackson did not enter or leave the house. Shortly thereafter, Jackson was seen driving within three blocks of his home. Knowing there was an active warrant for Jackson's arrest due to unpaid municipal fines, officers stopped him and transported him to 343-B Bolivar Street. Officers informed Jackson they were going to search his home. When asked for a key, Jackson stated he did not have one. Officers therefore kicked the door in and conducted a thorough search of the home while Jackson remained in the patrol car.

¶ 3. Even though the home was modest, numerous surveillance cameras were mounted outside to record the house's exterior area. Inside, there was a digital video recorder (DVR) connected to the video-surveillance system, showing the exterior of the house on four split screens on a monitor in real-time. On a living-room sofa, two clear plastic baggies containing a green leafy substance were found, as well as a significant amount of the same substance and some packaging materials in the bedroom on a dresser. Officers also seized from the bedroom a box of sandwich baggies, a set of digital scales, and the DVR system found in the closet. Additionally, they recovered several utility bills that were addressed to Jackson at this address, and Jackson's social-security card, which was lying on a living-room table. A ceramic container on top of the refrigerator in the kitchen was filled with sandwich baggies and a green leafy substance. Female clothing and cosmetics were also observed in the home, indicating a female apparently lived at the residence; however, a male's pair of pants was also observed and photographed.

¶ 4. After the search, Jackson was transported to the Clarksdale Police Department and booked. Jackson requested to use the telephone and made three calls, all of which were recorded without his knowledge and later admitted into evidence at trial. During the calls, Jackson made several statements indicating the house that the officers searched and the drugs were his. While officers did not witness the telephone calls, one officer identified Jackson's voice from the recordings.

¶ 5. A Coahoma County grand jury indicted Jackson for possessing more than thirty grams but less than one kilogram of marijuana with intent to distribute, in violation of Mississippi Code Annotated section 41-29-139(b)(1) (Rev. 2013). He was also indicted as a subsequent offender under Mississippi Code Annotated section 41-29-147 (Rev. 2013) and as a non-violent habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015).

¶ 6. At trial, narcotics officers testified to the amount of marijuana seized. Eric Frazure, a forensic chemist at the Mississippi Crime Lab accepted as an expert in drug analysis, testified that based on his testing, the green leafy substance seized was marijuana. The jury was instructed on both the charged offense and the lesser-included crime of simple possession of marijuana in an amount of more than 250 grams but less than 500 grams. The jury found Jackson guilty as charged, and he was sentenced to ten years in the custody of the MDOC.

¶ 7. Additional facts will be discussed as they relate to the issues raised.

ANALYSIS

¶ 8. On appeal, counsel for Jackson raises six issues. Jackson's pro se brief supplements his appellate counsel's arguments and raises four more separate issues. We shall discuss each in turn, consolidating where issues overlap.

I. Police Department Telephone Calls

¶ 9. Jackson argues the trial court erred in denying his motion to suppress recordings of three telephone calls he made at the Clarksdale Police Department, which were admitted into evidence, because he claims the State's attempts to authenticate the recordings were insufficient. During these telephone calls, Jackson identified the house and the marijuana as his property. Jackson claims there was no evidentiary foundation for the conversation because no one at the police department testified that the machinery was in proper working order while recording, and no one was listening to the conversation to make sure it was accurately recorded.

¶ 10. The standard of review for the admissibility of evidence is abuse of discretion. Stromas v. State , 618 So.2d 116, 119 (Miss. 1993). Evidence must be relevant and properly authenticated to be admitted at trial. Id. at 118 (citing M.R.E. 401 & 901 ). "Authentication of evidence requires the offering party to lay a proper foundation." Riley v. State , 126 So.3d 1007, 1009 (¶ 7) (Miss. Ct. App. 2013) (quoting Wilson v. State , 775 So.2d 735, 740 (¶ 11) (Miss. Ct. App. 2000) ). The applicable version of Mississippi Rule of Evidence 901(a) provides that authentication is sufficient when it "support[s] a finding that the matter in question is what its proponent claims." One means of authenticating evidence "is through the testimony of a witness with knowledge 'that [an item] is what it is claimed to be.' " Riley , 126 So.3d at 1009 (¶ 7) (quoting M.R.E. 901(b)(1) ). Further, the applicable Rule 901(b) gives several examples of evidence that can be used for authentication in different circumstances:

(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
(6) Telephone Conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called
....
(9) Process or System. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

M.R.E. 901(b)(5)-(6), (9) (emphasis added).

¶ 11. The State satisfied the authentication requirement through the testimony of Officer Carl Hinton, who testified he was familiar with Jackson's voice on the recording, and identified it as his. Jackson argues this was insufficient to lay a proper foundation, but we disagree. Officer Hinton transported Jackson to the station and booked him, then Officer Hinton allowed Jackson to make three telephone calls. While Officer Hinton did not overhear the calls, he and Jackson were the only individuals in the area when the calls were made, and he observed Jackson ending a call. Further, Cindy Doss, an administrator with the police department, testified that all incoming and outgoing telephone calls at the police station are recorded. She explained the process for obtaining a copy of the recordings and that she made a copy of Jackson's telephone calls as requested by the investigators.

¶ 12. In support of his argument, Jackson cites Conway v. State , 915 So.2d 521, 526 (¶ 19) (Miss. Ct. App. 2005), where this Court found an edited videotape was admitted without proper authentication because the officer who testified to authenticate the footage never actually witnessed the crime scene. However, the admission of the videotape was deemed harmless error due to the overwhelming evidence of the defendant's guilt. Id. at (¶ 20). We find Conway is inapplicable here because Officer Hinton's identifying testimony was based on information within his knowledge-Jackson's voice-whereas in Conway the video was of the crime scene and never viewed by the authenticating officer.

¶ 13. We find the State's citation to Broadhead v. State , 981 So.2d 320 (Miss. Ct. App. 2007) analogous to this situation. There, the defendant argued that the admission of her recorded phone call from jail was improperly admitted because the State's authentication of the recordings was insufficient. Id. at 326 (¶ 24). Similar to this case, the State authenticated the recording through an officer testifying he was familiar with the defendant's voice and identified her voice in the recording. Id. at 327 (¶ 25). The officer also testified he was familiar with the phone system that recorded the inmates' calls. Id. Here, Officer Hinton identified Jackson's voice, and Doss testified about the process for obtaining copies of the recorded phone calls. The Broadhead court also cited Conway as inapplicable because an officer was familiar with the defendant's voice. Id. at (¶ 26). Furthermore, we are not persuaded by Jackson's argument that a telephone-call recording system is analogous to an Intoxilyzer machine or a radar device.

¶ 14. Additionally, in his pro se brief, Jackson argues that the recordings should have been suppressed because they were obtained in violation of the Fourth Amendment. However, this argument is procedurally barred because it was not presented before the trial court. See Bates v. State , 879 So.2d 519, 522 (¶ 7) (Miss. Ct. App. 2004). Regardless of the procedural bar, the issue is without merit. A person may only challenge an intrusion to his or her right to privacy where the person "would objectively and reasonably expect privacy." Pierre v. State , 607 So.2d 43, 52 (Miss. 1992) (citing Katz v. United States , 389 U.S. 347, 351-52, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). In Pierre , there was no reasonable expectation of privacy under the Fourth Amendment for a telephone conversation by a defendant in custody, when she confessed to a crime while on the phone with her brother in an open room as police officers sat nearby. Id. at 51-52. "The expectations of privacy of an individual taken into police custody" are necessarily diminished. Maryland v. King , 569 U.S. 435, 462, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013). The same principle would apply here. Jackson did not have a reasonable expectation of privacy for his telephone calls because he was in custody and being monitored.

¶ 15. Relatedly, Jackson argues that Mississippi Code Annotated section 41-29-507 (Rev. 2013) was violated. This code section is part of the Interception of Wire or Oral Communications Act, and provides that "[n]o person, agency ... or political subdivision of the state, other than the Bureau of Narcotics, is authorized ... to own, possess, install, operate or monitor an electronic, mechanical or other device." However, the bureau "may be assisted by an investigative or law enforcement officer in the operation and monitoring of an interception ... [of communication], provided an agent of the Bureau of Narcotics is present at all times." Miss. Code Ann. § 41-29-509(1) (Rev. 2013). This specific issue was also not raised below, and accordingly, is procedurally barred. Bates , 879 So.2d at 522 (¶ 7). In spite of the bar, again, Jackson would not have a reasonable expectation of privacy while in custody using a jailhouse telephone. Section 41-29-501 defines the terms of the Act. " 'Oral communication' means an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. " Miss. Code Ann. § 41-29-501(j) (Rev. 2013).

¶ 16. In United States v. Van Poyck , 77 F.3d 285 (9th Cir. 1996), the defendant, upon arrival at a detention center, called several friends and made incriminating statements. The detention center recorded and selectively monitored all inmate telephone conversations and required inmates, upon arrival, to sign a form consenting to the monitoring. Signs were also posted above the telephones stating the telephones would be monitored. Id. at 287. The defendant challenged the detention center's recording policy under the Fourth Amendment. Id. at 290. The United States Court of Appeals for the Ninth Circuit stated that "[t]he Fourth Amendment is not triggered unless the state intrudes on an area 'in which there is a constitutionally protected reasonable expectation of privacy.' " That expectation "exists only if (1) the defendant has an 'actual subjective expectation of privacy' in the place searched and (2) society is objectively prepared to recognize that expectation." Id. at 290 (quoting United States v. Davis , 932 F.2d 752, 756 (9th Cir. 1991) ). The Ninth Circuit found that neither expectation existed, holding "any expectation of privacy in outbound calls from prison is not objectively reasonable and ... the Fourth Amendment is therefore not triggered by the routine taping of such calls." Id. at 290-91. See United States v. Gangi , 57 F. App'x 809 (10th Cir. 2003) (unpublished)

(following Van Poyck , 77 F.3d at 290-91 for the proposition that the Fourth Amendment is not triggered by jail-telephone calls when no sign is posted over telephone because there is no objective expectation of privacy in outbound calls from prison); United States v. Robinson , No. 08-60179-CR, 2008 WL 5381824, at *14 (S.D. Fla. Dec. 19, 2008) (following Van Poyck , 77 F.3d at 290-91 for the proposition that there is no expectation of privacy for a defendant's voluntary jail-telephone calls when notice is posted near the telephone that calls are recorded and monitored); State v. Martin , No. 2017-UP-246, 2017 WL 4641406, at *2 (S.C. Ct. App. 2017) (following Van Poyck , 77 F.3d at 290-91 for the proposition that the defendant had neither subjective nor objective expectation of privacy when jail-telephone calls were monitored; he was notified of it; and prisoners have severely curtailed privacy rights to preserve jail security). Here, Jackson claims he was not advised that his telephone calls would be recorded; therefore, he might present a question of whether he had a subjective expectation of privacy; however, under Van Poyck , we find that such expectation is not justified under these circumstances.

¶ 17. Further, Jackson has not proved that the Act applies to the Clarksdale Police Department as Mississippi Code Annotated section 41-29-535 (Rev. 2013) exempts "a subscriber to a telephone operated by a communication common carrier and who intercepts a communication on a telephone to which he subscribes." The Clarksdale Police Department may well be the "subscriber" to the telephone at issue.

¶ 18. Accordingly, the trial court did not abuse its discretion by admitting the properly authenticated telephone recordings into evidence.

II. Search Warrant

¶ 19. Jackson claims the trial court erred in denying Jackson's motion to suppress evidence obtained through an unlawful search warrant. He argues that the warrant was based on unreliable facts from the CI, the information was stale, and the magistrate issuing the warrant was not neutral. We shall discuss each argument in turn.

A. Unreliable Facts

¶ 20. At the hearing on his motion to suppress, Jackson argued that the search warrant was invalid because it was based on unreliable facts and circumstances in violation of the Fourth Amendment. Jackson also argued that the affidavit of underlying facts and circumstances was deficient as it inadequately described the property to be seized.

¶ 21. This Court reviews the admission or exclusion of evidence under an abuse of discretion. Cooper v. State , 93 So.3d 898, 900 (¶ 6) (Miss. Ct. App. 2012). The review for the issuance of a warrant is not de novo, but "whether the judge had a substantial basis for concluding that probable cause existed. The standard for determining the existence of probable cause for a search warrant based on an informant is the totality of the circumstances." Id. (citations and internal quotation marks omitted). "In determining whether there was a substantial basis for probable cause, we look at both the 'facts and circumstances set forth in the affidavit for the search warrant and sworn oral testimony presented to the issuing judge.' " Id. at 901 (¶ 8). The "substantial basis" standard is met "where the affidavit contains a statement that an officer has successfully used a confidential informant to prosecute criminal allegations in the past," and the "affidavit contains corroborating evidence to show a confidential informer is truthful and reliable."

Roebuck v. State , 915 So.2d 1132, 1137 (¶ 15) (Miss. Ct. App. 2005).

¶ 22. In this case, the search warrant's affidavit of facts and underlying circumstances stated:

INTRODUCTION
There is probable cause to believe that there is [m]arijuana located in the residence of 343 Bolivar Street duplex B, in Clarksdale, Coahoma County, Mississippi. A very ... reliable confidential informant observed a quantity of [m]arijuana at 343 Bolivar Street duplex B.
DETAILS
A very reliable confidential informant went to 343 Bolivar Street duplex B and observed a quantity of [m]arijuana. Present at the residence was Herman Jackson Jr; A.K.A. "Main Love." This informant has provided information and assistance for more than four (4) years, and his/her information has resulted in numerous drug seizures and several arrests on drug charges and numerous convictions in State Courts.

The document was prepared and sworn to on June 18, 2013, by Officer Ricky Bridges, Captain of the Narcotics Special Operations Unit, and Sergeant Gary Smith of the same unit in front of the Clarksdale municipal court judge.

¶ 23. Jackson claims the reliability of the CI was not corroborated by an independent reliable source. We disagree. The documents presented in support of the search warrant contained statements sufficient to show the CI was "very reliable." Further, at the hearing, Captain Bridges testified that he had used the CI for several years, and the information was "always reliable," leading to several arrests. Under the totality of the circumstances, there was sufficient evidence of the CI's veracity, and the trial judge had a substantial basis for concluding that probable cause existed.

¶ 24. Regarding whether the affidavit sufficiently described the property to be seized, the Mississippi Supreme Court "has repeatedly held descriptions in search warrants are sufficient if the places and things to be searched are designated in such a manner that the officer making the search may locate them with reasonable certainty." Williams v. State , 583 So.2d 620, 624 (Miss. 1991). "For property other than what is illicit or contraband, the thing or things to be seized must be described with some particularity." Sutton v. State , 238 So.3d 1150, 1157 (¶ 24) (Miss. 2018) (quoting Conn v. State , 251 Miss 488, 496, 170 So.2d 20, 24 (1964) ). Here, the affidavit stated the search would be for marijuana, and items such as packaging, notes, weapons, calendars, utility bills, currency, and other particular things too numerous to list here. This argument is without merit.

B. Staleness

¶ 25. Additionally, Jackson argues pro se that the search warrant was stale because the supporting affidavit did not include the time or date that the CI observed marijuana at the residence, or when the CI related the information to the affiants-Captain Bridges and Sergeant Smith.

¶ 26. The State responds that this issue is procedurally barred because it was not raised before the trial court. See Bates , 879 So.2d at 522 (¶ 7). However, it was. While the term "stale" was not used at the suppression hearing, defense counsel argued that the warrant was invalid because the time and date the drugs were observed and the information was relayed to the officers was unknown, which is the same argument Jackson raises now on appeal. Although the issue is not barred, we find it without merit.

¶ 27. Jackson is correct that staleness of information may be a defect in probable cause for a search warrant. See Flake v. State , 948 So.2d 493, 496 (¶ 9) (Miss. Ct. App. 2007). "When a warrant supports a search, the reviewing court must [e]nsure that the issuing magistrate had a substantial basis for concluding that probable cause existed." Jones v. State , 724 So.2d 427, 429 (¶ 8) (Miss. Ct. App. 1998) (citing Pipkins v. State , 592 So.2d 947, 949 (Miss. 1991) ).

Probable cause is a practical inquiry, a function of the totality of the circumstances in each particular case .... Objectivity is the key, for the information supporting probable cause must be such that would lead a reasonably competent issuing magistrate to believe that evidence will be found . The statements in the affidavit as well as any sworn oral testimony presented to the issuing magistrate will be considered.

Id. (emphasis added) (citing Williams , 583 So.2d at 622 ). "The determination of factual currency in the affidavit for a search warrant [is] but one factor in the totality of the circumstances for establishing the existence of probable cause." Flake , 948 So.2d at 496 (¶ 9).

¶ 28. During the suppression hearing, defense counsel recounted information from the Clarksdale Police Department Report, which is not in the record, and admitted that this same information was presented to the Clarksdale municipal judge to secure the search warrant. On June 18, 2013, Captain Bridges and Sergeant Smith "received credible information from a reliable confidential informant that Jackson was in possession of several pounds of marijuana" that "was being stored at 343B Bolivar Street, known to be Jackson's residence." (Emphasis added.)

¶ 29. The key inquiry is whether the magistrate had a substantial basis to believe marijuana would be found at the address. Jones , 724 So.2d at 429 (¶ 8). We find he did. While we are not privy to the exact facts, if any, the officers related to the magistrate, in addition to those contained in the affidavit, there is no indication that any of the information was stale. We understand the hesitancy of law enforcement to disclose in the affidavit a specific date the CI observed the interior of a certain residence, as that could lead to the possible identification of the CI. Here, the CI had been used numerous times, had been "in the system" for over four years, and had been proved reliable. This lends to the affiants' conclusion that marijuana was located in the residence. Further, a "quantity of marijuana" had been observed by the CI. The police report as read by defense counsel indicated "several pounds" of marijuana was being stored at the residence. Even if the CI had observed the marijuana some days previously, there would be a likelihood that some would still be present, given the quantity observed. As timing is but one factor to establish probable cause, Flake , 948 So.2d at 496 (¶ 9), we cannot say as a matter of law the affidavit was insufficient or that the magistrate erred in issuing the search warrant.

C. Neutral Magistrate

¶ 30. Finally, Jackson argues pro se that the search warrant was not valid because it was not signed by a neutral and detached magistrate. Jackson claimed that because he had pleaded guilty to a prior misdemeanor possession-of-marijuana charge before the same municipal judge, that judge could not be neutral at a later date.

¶ 31. Jackson did not present this argument before the trial court; therefore, he is procedurally barred from raising the issue for the first time here. In addition, the argument is without merit. While "[i]t is well-settled that an individual issuing a warrant must be a detached and neutral magistrate," here there is no evidence in the record indicating the municipal judge was not detached and neutral based on prior dealings with Jackson. Mitchell v. State , 931 So.2d 639, 642 (¶ 7) (Miss. Ct. App. 2006). This issue is without merit.

III. Evidence Tampering

¶ 32. Next, Jackson argues that the trial court erred in denying his motion to suppress evidence due to law enforcement allegedly tampering with the marijuana seized from his house.

¶ 33. The applicable version of Mississippi Rule of Evidence 901(a) states that in order "[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." The proponent must also "show no reasonable inference of material tampering with, or substitution of, the evidence; however, Mississippi law has never required a proponent of evidence to produce every handler of evidence." Ellis v. State , 934 So.2d 1000, 1005 (¶ 21) (Miss. 2006). "The defendant has the burden of proving tampering or substitution of the evidence, and 'a mere suggestion ...' " of substitution is insufficient. Deeds v. State , 27 So.3d 1135, 1142 (¶ 20) (Miss. 2010).

¶ 34. In Jackson's motion to suppress, he claimed there was a discrepancy between the weight of the marijuana that was allegedly recovered from the residence, and the weight submitted to the Mississippi Crime Laboratory. Attached to his motion was Officer Hinton's arrest report and Sergeant Smith's certified report to the crime lab on the amount of marijuana to be submitted for analysis totaling nineteen baggies. The trial court found the motion raised a chain-of-custody issue and held it in abeyance.

¶ 35. At trial, defense counsel modified his argument from weight to amount, seeking to show that more marijuana baggies (nineteen) were submitted to the crime lab than were recovered from the house (nine). In support of his argument, defense counsel attempted to prove that only nine baggies of marijuana were shown in photographs taken by Sergeant Smith at the scene. On cross-examination, the following colloquy occurred between defense counsel and Captain Bridges:

[DEFENSE COUNSEL]: And Mr. Smith, in your presence, took the photographs of those things that you identified as bags containing a green leafy substance; is that correct?
[CAPTAIN BRIDGES]: Yes, sir.
Q: And he took photographs of every item or every bag that appeared to contain a green leafy substance; is that correct?
A: Yes, sir. I think Smith took all the photographs that day.

During the cross-examination of Sergeant Smith, defense counsel had him count every distinct baggie containing the "green leafy substance" that he could visibly identify from the photographs presented, which totaled nine baggies. However, Sergeant Smith testified there were "baggies inside of the bigger baggies," and he was only testifying about the number of baggies clearly visible from the individual photographs. Sergeant Smith also confirmed that his report to the crime lab had a total of nineteen baggies submitted for testing. He testified in great detail as to what he submitted to the lab, as documented in his report, which totaled nineteen baggies: exhibit one was two clear plastic baggies; exhibit two was two large and five small baggies; and exhibit three was two large baggies and eight small baggies. Frazure, a forensic chemist at the crime lab, also testified about the submission of the same number of baggies for each exhibit, with a total net weight of 258.3 grams, which lab tests confirmed was marijuana.

¶ 36. Despite this testimony, in Jackson's motion for judgment notwithstanding the verdict or, in the alternative, a new trial, he continued to argue that the evidence was unlawfully tampered with by members of the Narcotics Division of the Clarksdale Police Department, because more marijuana was submitted to the crime lab "than was supposedly seized from the home." The motion stated that a witness, presumably Sergeant Smith, "candidly admitted" seizing nine baggies of marijuana but submitted nineteen baggies to the lab for testing.

¶ 37. We are not persuaded by Jackson's argument of evidence tampering. There is no "candid admission" by any witness that only nine baggies of marijuana were seized from the house, only that nine baggies can be seen in the photographs. Further, Captain Bridges did not indisputably agree that a photograph was taken of every gram and baggie of marijuana, but merely that Sergeant Smith was the photographer that day.

¶ 38. The fact that all of the baggies could not be seen from the photographs does not mean that nineteen baggies of marijuana were not recovered from the house. The testimony implies that the baggies collected were the same number of baggies tested. The testimony of Officers Bridges, Smith, and Frazier did not support evidence tampering. Rule 901(a) was satisfied; the green leafy substance was proven to be marijuana. Jackson does not meet his burden of proving evidence tampering.

IV. Sufficiency of the Evidence

¶ 39. Relatedly, Jackson argues that the evidence is insufficient to support the verdict because the statutory weight requirement was not met due to the alleged tampering of the marijuana. He also argues pro se that the State failed to meet its circumstantial-evidence burden.

¶ 40. The relevant inquiry to the sufficiency of the evidence is whether, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (abrogated on other grounds by Little v. State , 233 So.3d 288 (Miss. 2017) ). All credible evidence consistent with the defendant's guilt will be accepted as true, together with all favorable inferences that may be reasonably drawn from the evidence. Robinson v. State , 940 So.2d 235, 239-40 (¶ 13) (Miss. 2006) (citing McClain v. State , 625 So.2d 774, 778 (Miss. 1993) ). The State is allowed to prove crimes solely by circumstantial evidence, but such evidence must be "sufficient to prove the defendant's guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence." Fleming v. State , 604 So.2d 280, 288 (Miss. 1992). However, in a circumstantial-evidence case, we must scrutinize the jury's verdict more closely. Madden v. State , 42 So.3d 566, 569 (¶ 9) (Miss. Ct. App. 2010). Still, "the intent to sell or deliver contraband may be established by inference from circumstantial evidence." Jowers v. State , 593 So.2d 46, 47 (Miss. 1992).

¶ 41. Since we found Jackson's argument on evidence tampering without merit, this argument is without merit as well. The evidence showed over 250 grams of marijuana was seized from Jackson's residence. This evidence is sufficient to prove the weight requirement element beyond a reasonable doubt.

¶ 42. There was also sufficient evidence presented to support the jury's finding that Jackson possessed and intended to sell the marijuana. The drug was found throughout the house in various stages of being packaged-divided in multiple and different size baggies. Also seized was a package of sandwich baggies consistent with those used to store the marijuana at the residence, a blue plastic tray with a green leafy substance and residue, fifteen small clear plastic baggies (some with green leafy residue), one cloth bag with residue, a Walmart bag with residue, and a digital scale indicating Jackson was measuring the marijuana for sale. Further, the elaborate surveillance system on the modest house, complete with cameras, a DVR, and a live-feed flat-screen monitor, indicated Jackson was involved in the drug trade. During one of Jackson's recorded telephone calls at the police station played to the jury, Jackson told an individual to "[g]o to the spot ... under that tub, is a green box. It got some racks in it, man. Get it. Go over there now man. You need to stop doing what you['re] doing now and go over there and get it." Possession of a large amount of money-hidden-also indicated Jackson was selling the marijuana. The jury was given the lesser-included offense instruction of simple possession but elected to convict Jackson of the greater crime. There was sufficient evidence for the jury to draw a reasonable inference of possession of marijuana with intent to sell, to the exclusion of every reasonable hypothesis consistent with innocence.

¶ 43. Additionally, in his pro se brief, Jackson argues the State failed to prove he lived at the residence or constructively possessed the marijuana because officers did not see him entering or leaving the residence on the day of the search, and he denied having keys to the house. Even so, the State presented evidence to show that several utility bills were addressed to Jackson at the house's address. Further, in the telephone calls from the police station, Jackson speaks of the house as his. Even though Jackson pointed to evidence showing he did not live at the residence, "factual disputes are properly resolved by the jury ...." Moore v. State , 859 So.2d 379, 385 (¶ 26) (Miss. 2003). A rational trier of fact could find beyond a reasonable doubt that Jackson resided, and had dominion and control, over the residence at 343-B Bolivar Street.

V. Motion for Recusal

¶ 44. Jackson contends that the trial court erred in denying his motion for recusal. Jackson requested the trial judge recuse himself due to Jackson's involvement in a fight with a Coahoma County Sheriff's Department deputy in a prior case in 2006. Jackson claims he was assaulted by the deputy in front of the judge during his arraignment proceedings. The trial judge denied the motion, claiming he had no recollection of the altercation; therefore, it could not bear on his impartiality during Jackson's trial.

¶ 45. Canon 3(E)(1)(a) of the Code of Judicial Conduct explains the rule concerning judicial disqualification: "Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances ... including but not limited to instances where ... the judge has a personal bias or prejudice concerning a party ...." See also UCRCCC Rule 1.15 (giving procedure for motions for recusal of judges). The decision to recuse is left to the sound discretion of the trial judge, as long as the correct legal standards are consistently applied. Jackson v. State , 962 So.2d 649, 663 (¶ 29) (Miss. Ct. App. 2007). "On appeal, a trial judge is presumed to be qualified and unbiased and this presumption may only be overcome by evidence which produces a reasonable doubt about the validity of the presumption." Id.

¶ 46. The trial judge did not abuse his discretion in denying Jackson's request for recusal. The judge did not even recall the 2006 incident in the courtroom; therefore, a reasonable person would not question the judge's impartiality. Further, Jackson has provided no specific evidence to indicate the trial judge was biased or unqualified, except his own numerous speculative comments. The fact the judge ruled against him on certain motions or jury instructions is insufficient. See id. at (¶ 31). The record does not indicate that the trial judge held any bias against Jackson during the trial or in his rulings. This issue is without merit.

VI. Cumulative Error

¶ 47. Jackson argues that the cumulative effect of various errors deprived him of a fundamentally fair trial.

The cumulative error doctrine stems from the doctrine of harmless error which holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial. However, where there was no error in part, there can be no reversible error to the whole.

Harris v. State , 970 So.2d 151, 157 (¶ 24) (Miss. 2007) (citations and internal quotation marks omitted). Here, since there were no errors, harmless or otherwise, there was no cumulative error.

VII. Ineffective Assistance of Counsel

¶ 48. Jackson, arguing pro se, claims one of his defense counsel was ineffective because counsel allegedly "guaranteed" that Jackson would not have to go to trial since the State would be unable to prove that he possessed marijuana. Additionally, he claims counsel incorrectly told him the marijuana obtained from the search warrant would be excluded, as would be the telephone calls made at the police station.

¶ 49. "When a party raises an ineffective assistance of counsel claim on direct appeal, the proper resolution is to deny relief without prejudice to the defendant's right to assert the same claim in a post-conviction relief proceeding." Graves v. State , 914 So.2d 788, 798 (¶ 35) (Miss. Ct. App. 2005). This Court will "reach the merits on an ineffective assistance of counsel issue on direct appeal only if '(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.' " Id. The record does not support Jackson's contentions or affirmatively show ineffectiveness of constitutional dimensions. Further, the parties have not entered any relevant stipulation. Accordingly, this Court denies relief without prejudice to Jackson's right to request permission to pursue the issue in a motion for post-conviction relief.

VIII. Prosecutorial Misconduct

¶ 50. Arguing pro se, Jackson claims the State committed prosecutorial misconduct. However, at trial his counsel made no such objections. It is well established that "the failure to make a contemporaneous objection serves as a waiver of any error" and is procedurally barred. Washington v. State , 957 So.2d 426, 429 (¶ 13) (Miss. Ct. App. 2007). To avoid the procedural bar, Jackson argues that the prosecutor's conduct was "so exceptionally flagrant that it constitute[d] plain error, and [could be] grounds for reversal even if the defendant did not object to it." See United States v. Carroll , 26 F.3d 1380, 1385 n.6 (6th Cir. 1994).

¶ 51. Jackson discusses numerous witnesses he contends were allowed to present "false testimony" during various times, including Sergeant Smith at the grand jury proceedings, as well as prosecutorial misstatements made during opening and closing statements at trial, all of which allegedly prejudiced him. He argues against the admission of the State's "false" evidence and testimony showing he lived at the house, the nineteen baggies of marijuana, and his outstanding arrest warrant.

¶ 52. Prosecutors are allowed "wide latitude" in their arguments, "limiting them not only to facts, but also to deductions and conclusions which may be drawn therefrom, and to the application of the law to those facts." Holly v. State , 716 So.2d 979, 988 (¶ 33) (Miss. 1998). "Even when a prosecutor has made an impermissible comment ... a showing of prejudice [is required] to warrant reversal." Outerbridge v. State , 947 So.2d 279, 286 (¶ 23) (Miss. 2006).

¶ 53. Here, the record does not indicate that the State presented any "false evidence"-Jackson's arguments about the residence, baggies of marijuana, and outstanding arrest warrant have all been previously discussed in other issues and found without merit. Moreover, prosecutors are not limited only to the facts, but any reasonable conclusions that can be drawn from them. Finally, the prosecutor's opening or closing statements contained no statements that were impermissible, "exceptionally flagrant," or prejudicial to Jackson. This issue is without merit.

IX. State's Evidence

¶ 54. Before trial, Jackson moved to suppress the evidence obtained by the issuance of the search warrant because it was allegedly issued unlawfully. Now, for the first time on appeal, Jackson argues pro se that the State knowingly used false evidence and "perjured testimony" at the pre-trial suppression hearing; therefore, the trial court should have suppressed the evidence. This argument is procedurally barred because it was not presented before the trial court. See Bates , 879 So.2d at 522 (¶ 7). Moreover, it is without merit.

¶ 55. Jackson claims Captain Bridges's testimony at the suppression hearing was false and Bridges later committed perjury at trial because his testimony "changed" to mislead the jury into believing Jackson was the only person who had access to the residence. Also, Jackson argues that he was arrested based on an invalid outstanding warrant. However, as previously discussed, the trial court denied Jackson's motion to suppress the evidence because the search was conducted under a valid warrant. Also, Jackson's arguments about false testimony are not supported by the record and are without merit.

X. Confidential Informant

¶ 56. Jackson argues pro se that the trial court erred in denying his request for disclosure of the CI's identity. However, it is well established that "the disclosure of an informer who is not a material witness to the guilt or innocence of the accused, is within the sound discretion of the trial court." Breckenridge v. State , 472 So.2d 373, 377 (Miss. 1985). Here, the CI was not a material witness but alerted law enforcement to the fact that a large quantity of marijuana could be found in Jackson's residence. Therefore, disclosure of the CI's identity was not necessary, and this issue is without merit.

XI. Sentence

¶ 57. Jackson claims that the trial court abused its discretion in declining to reduce Jackson's sentence under Mississippi Code Annotated section 41-29-139(h) (Supp. 2014). This code section gives the trial judge discretion to mitigate a sentence by twenty-five percent or more, if the person is "convicted of an offense under this section that requires the judge to impose a prison sentence which cannot be suspended or reduced and is ineligible for probation or parole ...." Id.

¶ 58. Jackson was originally indicted as a non-violent habitual offender under section 99-19-81 and as a subsequent drug offender under section 41-29-147. However, the State later moved to amend the indictment, and an order was entered allowing Jackson to be sentenced under either section 99-19-81, or as a violent habitual offender section 99-19-83, meaning he could face a life sentence under the latter statute.

¶ 59. Moreover, in June 2013, at the time Jackson committed the offense, the maximum sentence he could receive if convicted as a non-violent habitual and subsequent drug offender was sixty years. See Miss. Code Ann. §§ 41-29-139(b)(1), 41-29-147 (Rev. 2013). However, in 2014 the Legislature amended the drug-trafficking statute, and the maximum sentence for the same offense would be ten years. See Miss. Code Ann. § 41-29-139(b)(2)(A)(2) (Supp. 2016).

¶ 60. At the sentencing hearing, the State noted that it would agree to Jackson being sentenced under section 99-19-81, relieving him of a life sentence under section 99-19-83. Additionally, the State agreed that Jackson should receive the benefit of being sentenced under the amended sentencing statutes, reducing his potential sentence from sixty to ten years. Because the sentencing recommendations by the State were reasonable, the trial court decided not to reduce Jackson's sentence under section 41-29-139(h). We find no error in this regard.

¶ 61. The judgment and sentence of the circuit court are affirmed.

¶ 62. AFFIRMED.

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

      Jackson was previously convicted by a jury for possession of cocaine and marijuana in February 2007. He appealed pro se, raising many of the same issues. This Court affirmed his conviction and sentence in Jackson v. State , 1 So.3d 921 (Miss. Ct. App. 2008).

      On appeal, Jackson is represented by the Office of State Public Defender, but he also filed a pro se initial brief and reply brief. Rule 28(b) of the Mississippi Rules of Appellate Procedure authorizes an appellant in a criminal appeal to file a pro se supplemental brief and raise "issues not addressed by counsel, but such issues must be based on the record."

      Captain Bridges testified that "loose surveillance" means the officers were "staying in the area, but not completely visible the whole time." He explained that they cannot sit close to a residence in a high-crime area because it will disclose that the "narcs are looking at my house"; therefore, the officers move around while watching the residence.

      Jackson, pro se, claims officers created a "false warrant" to cover up an illegal traffic stop, but a valid warrant for overdue fines is included in the record. He also claims the police report was falsified, but there is no legitimate evidence to support this contention.

      Jackson maintained the house is not his residence despite evidence to the contrary.

      All incoming and outgoing telephone calls at the station are recorded.

      At one point, Jackson, pro se, disputes the statute under which he was charged. However, we note that the statute was amended and the changes became effective in July 2017. Jackson was charged and convicted under the statute as it was written in December 2013, which may be the source of his confusion. Jackson also claims the district attorney produced false evidence to indict and convict him, which will be discussed in the third issue.

      The trial court granted the State's request to amend Jackson's indictment, permitting him to be sentenced under either habitual offender statute section 99-19-81 or -83 because Jackson had been convicted of a crime of violence-two counts of aggravated assault in 1996. Jackson was ultimately sentenced under section 99-19-81, thereby avoiding a mandatory life sentence.

      At the time of his arrest, Jackson was charged with possession of marijuana under thirty grams but not over 250 grams under section 41-29-139(c)(2)(C). In his motion to suppress filed in February 2015, he claims that while nineteen baggies were recovered from the residence as a result of the search warrant, only eighteen baggies were delivered to the lab, where it was determined the weight of the marijuana was over 250 grams, not under 250 grams as Officer Hinton had found. Jackson requested the evidence be suppressed due to this weight discrepancy, which counsel claimed caused Jackson's initial charge to be elevated from a misdemeanor to a felony. Jackson was ultimately indicted for possession with intent to distribute more than thirty grams but less than one kilogram under section 41-29-139(b)(1), and Jackson's argument related to this issue focused more on the number of baggies, not the weight.

      As the State notes, however, on appeal Jackson is no longer raising a chain-of-custody issue.

      In his pro se brief, Jackson claims these utility bills, as well as his social-security card, were "false evidence" created by the district attorney, and the testimony by Captain Bridges and Sergeant Smith about finding these documents was false as well. No evidence, however, supports these contentions.

      Jackson also raised this argument against the same judge in his prior appeal on yet another charge. We found that issue without merit as well. Jackson , 1 So.3d at 927-28 (¶¶ 16-18).


author: LEE, C.J., FOR THE COURT:

text:
    La'Darrian MCCRAY a/k/a Ladarrian A. McCray a/k/a Ladarrian McCray a/k/a D.J., Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01592-COA
    Court of Appeals of Mississippi.
    July 17, 2018 Rehearing Denied October 23, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: ERIN ELIZABETH BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART, JACKSON
    BEFORE LEE, C.J., BARNES AND TINDELL, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. Following a jury trial in the Hinds County Circuit Court, La'Darrian "D.J." McCray was convicted of first-degree murder and attempted aggravated assault. McCray was sentenced to life imprisonment for the murder conviction and twenty years for the aggravated-assault conviction, with the sentences ordered to run concurrently in the Mississippi Department of Corrections. In this direct appeal, McCray argues that he (1) received ineffective assistance of counsel, and (2) the trial court erred by denying his motion for a judgment notwithstanding the verdict (JNOV) with respect to the aggravated-assault conviction. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In the early morning hours of October 17, 2014, Glentez Brown was shot several times and killed at his apartment complex in Jackson, Mississippi. At trial, Brown's wife, Ashley, testified that on the evening of the shooting, Brown was driving his cousin, Wesley Gray, home and then driving around their three-month-old infant son, trying to calm his crying and help him fall asleep. Ashley spoke to Brown on the phone and told him to come home because the baby was not falling asleep. A few minutes later, Ashley heard gunshots and went and looked out the window where she saw a man wearing a gray hoodie and dark jeans walk past her window with a gun in his right hand. She testified that she was able to see his face clearly, but she did not recognize or know him. Ashley saw that the couple's vehicle was present, indicating that Brown had returned with the baby. She also saw a silver truck fleeing the apartments.

¶ 3. Ashley opened her apartment door, which was located on the second floor, and heard her son screaming. She looked down the stairs and saw her husband and son lying on the ground covered in blood. Ashley went down to them, but went back upstairs to the apartment to let her daughter know her father had been shot, and to get her phone. She went back downstairs again to her husband and son and called 911. Ashley picked up her baby and checked Brown's pulse and then returned upstairs to call family members and friends. Ashley's neighbor, Latricia Dent, came out and offered to take the baby for her, and so Dent took the baby back to her own apartment.

¶ 4. Ashley called Brown's brother, Joseph, several times trying to get in touch with him. After five calls, she finally reached him by phone and told him that Brown was dead. Joseph, along with two of his friends, and his ex-girlfriend, Lezert "Pumpkin" Edwards, arrived at the apartment. At some point after Joseph and Edwards arrived, Ashley was in the ambulance while her son was being checked for injuries. The baby was not injured.

¶ 5. While in the ambulance with the baby, Ashley saw a man pass by outside the ambulance, and she asked Edwards, who was standing outside the doors of the ambulance, who the man was. Ashley testified that she asked who the man was because he was the same man she had seen pass by her apartment window with a gun immediately after hearing gunshots. The man was no longer wearing a hoodie and now had on glasses. Edwards replied that the man was "D.J." (McCray). Ashley later learned that McCray was friends with Joseph. Ashley admitted both during the investigation and at trial that Brown was a drug dealer, but denied that he was fighting or at odds with anyone. She also testified that she did not immediately report McCray as the man with a gun to the police at the scene for fear of her and her children's safety.

¶ 6. Dent, Ashley's neighbor, also testified at trial that she heard gunshots and went outside where she saw a man and a baby on the ground. She went back inside and awoke her brother, and he called 911. When Dent went back outside, she saw Ashley holding the baby and vomiting. Ashley handed Dent the baby, and Dent took the baby back into her apartment and kept him for Ashley. She examined the baby and described that he was covered with blood and a white meaty substance on his face, in his hair, mouth, and clothes, but that she saw no physical marks or injury to his body. She also testified that the baby screamed continuously from the time she took him from Ashley to the time he was examined in the ambulance-approximately two-and-a-half hours.

¶ 7. Edwards testified that on the evening of the shooting she was at a local nightclub and later saw Joseph there too. Edwards testified that she had broken up with Joseph earlier that day due to his drug use and behavior. Within five to ten minutes of seeing Joseph at the nightclub, he told her that they had to leave because Brown had been killed. Edwards rode separately to Ashley's apartment. She stated that when she arrived, Joseph was already there, along with his friends, "Red" and McCray. She stated that later on at the scene, while she was standing at the ambulance with Ashley, Ashley asked her who the man was near the ambulance. Edwards corroborated that Ashley told her he looked like the man she had seen earlier leaving the scene. Edwards stated that she told McCray what Ashley had said and that McCray left the scene shortly thereafter.

¶ 8. Detective Jermaine Magee with the Jackson Police Department testified that he was dispatched to the scene in the early morning hours where he discovered Brown's "lifeless motionless body lying on floor on the ground near a stairwell." He stated that there were baby items and shell casings next to Brown. Shortly after receiving the call about the shooting, a call came in reporting a silver truck burning in a nearby area. Detective Magee briefly interviewed Ashley at the scene, and she described what had transpired, including seeing an individual running from the scene with a gun in his hand, but she did not report the identity of the man. Detective Magee then spoke with Ashley on the phone the next day and she told him she knew who had killed Brown, but she would not reveal the identity over the phone because she was in fear for her life. They spoke again by phone on October 19, 2013, and Ashley disclosed McCray's identity to Detective Magee. On October 20, 2013, after Ashley was able to move herself and her children out of her apartment, Detective Magee interviewed her in person, and she again gave an account of what happened on the night of the shooting. She was then given an opportunity to view a six-person photographic lineup where she selected the person she saw running from the scene with a gun. The person she identified was McCray.

¶ 9. Dr. Lisa Funte, Deputy Chief Medical Examiner for the State of Mississippi, conducted an autopsy on Brown. She testified that Brown suffered several gunshot wounds and died as a result.

¶ 10. Following a jury trial, McCray was convicted of first-degree murder of Brown and of attempted aggravated assault of the baby. McCray now appeals.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 11. In his first issue, McCray argues that he received ineffective assistance of counsel denying his right to a fair trial because his attorney failed to request a circumstantial-evidence jury instruction. McCray contends the evidence presented by the State was purely circumstantial and the jury was not properly instructed. "A circumstantial-evidence case is one where the State is 'without a confession and wholly without eyewitnesses to the gravamen of the offense charged.' " Carson v. State , 125 So.3d 104, 106 (¶ 5) (Miss. Ct. App. 2013) (quoting Garrett v. State , 921 So.2d 288, 291 (¶ 17) (Miss. 2006) ). "The term 'gravamen' is defined as the 'substantial point or essence of a claim, grievance, or complaint.' " Id. (quoting McInnis v. State , 61 So.3d 872, 876 (¶ 13) (Miss. 2011) ). McCray argues that because there was no confession and no eyewitnesses to Brown's shooting, he was entitled to a circumstantial-evidence jury instruction to instruct the jury that it could not render a guilty verdict unless the State proved his guilt "beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence." (Citing Keys v. State , 478 So.2d 266, 267 (Miss. 1985) ).

¶ 12. McCray also argues that his defense attorney rendered ineffective assistance of counsel by withdrawing his motion for a new trial. At trial, McCray's attorney filed a motion for JNOV, or in the alternative, a new trial. His attorney withdrew the motion for a new trial and stated the defense would proceed on the motion for a JNOV. McCray argues that the withdrawal of the motion deprived the trial court the opportunity to review the weight of the evidence. "The contention that the verdict is against the overwhelming weight of the evidence must first be raised in the defendant's motion for a new trial." Hunter v. State , 187 So.3d 674, 678 (¶ 13) (Miss. Ct. App. 2016) (quoting Beckum v. State , 917 So.2d 808, 813 (¶ 14) (Miss. Ct. App. 2005) ). "A claim that the verdict was against the weight of the evidence must be first presented to the trial court since that court is best positioned to make an informed decision as to such issue, having had the benefit of hearing the evidence first-hand." Id. (quoting Collins v. State , 858 So.2d 217, 218-19 (¶ 5) (Miss. Ct. App. 2003) ).

¶ 13. A claim for ineffective assistance of counsel should only be addressed on direct appeal where "(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge." Reed v. State , 204 So.3d 785, 789 (¶ 16) (Miss. Ct. App. 2016) (quoting Johnson v. State , 196 So.3d 973, 975 (¶ 7) (Miss. Ct. App. 2015) ). The parties here do not stipulate that the record is adequate for the appellate court to make a finding on direct appeal. "Thus, the only proper inquiry is whether the record affirmatively shows that [the defendant] was denied effective assistance of counsel." Id. "Where the record cannot support an ineffective-assistance-of-counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for [postconviction relief]." Id. (quoting Johnson , 196 So.3d at 975 (¶ 8) ).

¶ 14. In an ineffective-assistance-of-counsel claim,

a defendant must show that: (1) his counsel's performance was deficient, and (2) this deficiency prejudiced his defense. The burden of proof rests with the defendant to prove both prongs. Under Strickland ,[ ] there is a strong presumption that counsel's performance falls within the range of reasonable professional assistance. To overcome this presumption, the defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.

Renfrow v. State , 202 So.3d 633, 636 (¶ 7) (Miss. Ct. App. 2016) (quoting Maggitt v. State , 26 So.3d 363, 365 (¶ 12) (Miss. Ct. App. 2009) ). There is also a presumption that decisions made by defense counsel are strategic, and this Court "will not second-guess counsel's decisions that fairly may be characterized as strategic." Shinn v. State , 174 So.3d 961, 966 (¶ 12) (Miss. Ct. App. 2015). Finally, we look "at the totality of circumstances to determine whether counsel's efforts were both deficient and prejudicial." Howell v. State , 163 So.3d 240, 259 (¶ 49) (Miss. 2014) (quoting Williams v. State , 73 So.3d 1125, 1129 (¶ 12) (Miss. 2011) ).

A. Circumstantial-Evidence Jury Instruction

¶ 15. McCray argues that this case was wholly circumstantial. The State argues that McCray was not entitled to a circumstantial-evidence jury instruction because there was both direct and circumstantial evidence. However, "[d]irect evidence that a crime was committed without direct evidence that the defendant committed the crime, is not enough to defeat a circumstantial evidence instruction." Turner v. State , 945 So.2d 992, 1002 (¶ 33) (Miss. Ct. App. 2007). Stated differently, "direct evidence that avoids the instruction must directly and not by inference implicate the accused and not just show that there has been a crime." Price v. State , 749 So.2d 1188, 1194 (¶ 16) (Miss. Ct. App. 1999).

¶ 16. The supreme court has defined circumstantial evidence as "evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist." McInnis , 61 So.3d at 875 (¶ 11). "A circumstantial evidence instruction must be given when the prosecution is without a confession and without eyewitnesses to the gravamen of the offense charged." Turner , 945 So.2d at 1002 (¶ 33).

¶ 17. In the instant case there was no direct evidence-eyewitness or confession-that McCray shot and killed Brown. The evidence presented placed McCray at the crime scene with a gun immediately after Brown was shot-giving rise to the logical inference that McCray shot Brown. Thus, the case was wholly circumstantial. "If the only direct evidence in a homicide case is testimony that a witness heard a gunshot and then saw the victim fall dead, the case that proves the guilt of a specific defendant is still wholly circumstantial." Price , 749 So.2d at 1193 (¶ 16) (citing Hooker v. State , 716 So.2d 1104, 1107 (Miss. 1998) ). "Failure to request a circumstantial evidence instruction, when the evidence against one's client is wholly circumstantial falls below the standard of reasonable professional assistance." Turner , 945 So.2d 992 at 1002 (¶ 33). Therefore, McCray's counsel's performance was deficient for failing to request a circumstantial jury instruction. McCray has met this first prong of Strickland , but our inquiry does not end here.

¶ 18. Under the second prong of Strickland , McCray must show that deficiency prejudiced his defense. Renfrow , 202 So.3d at 636 (¶ 7) (quoting Maggitt , 26 So.3d at 365 (¶ 12) ). For prejudice to exist, there must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. That is, "the reviewing court must determine whether the insufficiency had a 'reasonable probability' of affecting the outcome of the case." Carson v. State , 212 So.3d 22, 27 (¶ 17) (Miss. 2016) (citing Strickland , 466 U.S. at 695, 104 S.Ct. 2052 ) ). "A 'reasonable probability'

means that the confidence of the court in the outcome is undermined, not that it is certain that the verdict would have been different." Id.

¶ 19. McCray's counsel was deficient in failing to request the circumstantial-evidence instruction that would have increased the burden of proof on the State. However, we find that McCray fails to show how his counsel's failure to request the circumstantial-evidence jury instruction prejudiced his defense so that "the result of the proceeding would have been different." "Circumstantial evidence in a criminal case is entitled to as much weight as any other kind of evidence, and, in fact, 'a conviction may be had on circumstantial evidence alone.' " Williams v. State , 122 So.3d 105, 108-09 (¶ 17) (Miss. Ct. App. 2013) (quoting Tolbert v. State , 407 So.2d 815, 820 (Miss. 1981) ).

¶ 20. We cannot say that the trial record affirmatively shows ineffective assistance of counsel of constitutional dimensions. Accordingly, we decline to rule on the claim, in order to preserve his right to argue the issue in a PCR motion.

B. Motion for a New Trial

¶ 21. McCray also argues that he received ineffective assistance of counsel because his defense attorney withdrew the motion for a new trial. "A motion for a new trial challenges the weight of the evidence." Leonard v. State , 972 So.2d 24, 30 (¶ 22) (Miss. Ct. App. 2008). A motion for a new trial "must be first presented to the trial court since that court is best positioned to make an informed decision as to such issue, having had the benefit of hearing the evidence first-hand." Allen v. State , 200 So.3d 1100, 1101 (¶ 3) (Miss. Ct. App. 2016).

¶ 22. A reading of the transcript shows that during the sentencing hearing, the trial judge asked McCray's defense counsel whether the motion she was arguing was "to be considered a motion for new trial or, in the alternative, for a suspended sentence?" McCray's counsel indicated that she would "withdraw the new trial from that motion, and ... address it in the JNOV." She further stated she would "stand by the portion of that motion" which referred to a motion for a suspended sentence. McCray's counsel subsequently filed a motion for "Motion For Judgment Non Obstante Verdicto (JNOV) or, in the alternative, A New Trial" which addressed the weight of the evidence. As such, a motion for a new trial challenging the weight of the evidence was presented to the trial court for its consideration. This issue is without merit.

II. Motion for JNOV

¶ 23. In his final issue on appeal, McCray argues that the trial court erred when it denied his motion for a JNOV because the evidence was insufficient to sustain a conviction of aggravated assault. Specifically, McCray argues that there was no proof that he possessed the intent required for attempted aggravated assault, and the trial court should have granted his motion.

¶ 24. This Court's standard of review for a trial court's grant or denial of a motion for JNOV is de novo. Estate of Gardner v. Gardner , 228 So.3d 921, 926 (¶ 19) (Miss. Ct. App. 2017). A motion for a JNOV challenges the legal sufficiency of the evidence, and where there is substantial evidence to support the verdict, we will affirm the denial of a JNOV. InTown Lessee Assoc. LLC v. Howard , 67 So.3d 711, 718 (¶ 22) (Miss. 2011). "Substantial evidence is information of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions."

Bryant v. State , 151 So.3d 1025, 1029 (¶ 13) (Miss. Ct. App. 2014) (quoting Daniels v. State , 107 So.3d 961, 963 (¶ 10) (Miss. 2013) ). "When reviewing a motion for a JNOV, the trial judge is required to accept as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the defendant." Id. at (¶ 14) (internal quotation mark omitted). "We will reverse only where with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair minded jurors could only find the accused not guilty." Id. (internal quotation marks omitted).

¶ 25. Mississippi Code Annotated section 97-3-7(2)(a)(ii) (Rev. 2014) states that a person is guilty of aggravated assault if he "attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm ...." "An attempt to commit a crime consists of three elements: (1) an intent to commit a particular crime, (2) a direct ineffectual act done toward its commission, and (3) the failure to consummate its commission." Craig v. State , 201 So.3d 1108, 1111 (¶ 9) (Miss. Ct. App. 2016) (quoting Brooks v. State , 18 So.3d 833, 841 (¶ 33) (Miss. 2009) ). "For an attempt crime, an intent to commit the particular crime must be established." Id. at 1114 (¶ 18). "Intent may be established by inference from circumstantial evidence." Parish v. State , 203 So.3d 718, 723 (¶ 19) (Miss. Ct. App. 2016). "Circumstantial evidence in a criminal case is entitled to as much weight as any other kind of evidence, and, in fact, 'a conviction may be had on circumstantial evidence alone.' " Williams , 122 So.3d at 108-09 (¶ 17) (quoting Tolbert v. State , 407 So.2d 815, 820 (Miss. 1981) ). We note that "the jury may draw any reasonable inferences from all the evidence in the case." Id. at 108 (¶ 17) (quoting Anthony v. State , 23 So.3d 611, 623 (¶ 53) (Miss. Ct. App. 2009) ).

¶ 26. Having accepted as true all the evidence favorable to the State, the evidence is not such that reasonable and fair-minded jurors could only have found McCray not guilty. Rather, reasonable and fair-minded jurors could have inferred from the evidence that McCray shot Brown; that Brown was holding his infant son when he was shot multiple times; and that McCray thus possessed the intent to commit aggravated assault, that is he attempted to inflict serious bodily injury with a deadly weapon-namely a gun, upon the baby. Because the evidence is not such that reasonable and fair minded jurors could only find McCray not guilty, we affirm the trial court's decision. The trial court did not err by denying McCray's motion for a JNOV.

¶ 27. AFFIRMED.

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

      McCray was also indicted for arson, but the trial court granted the defense's motion for a directed verdict. The jury accordingly returned a verdict of "not guilty" with respect to the arson charge.

      Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).