author: WESTBROOKS, J., FOR THE COURT: CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    Justin Bryce BROWN, Appellant v. Kristin Franklin ANSLUM, Appellee
    NO. 2017-CA-00028-COA
    Court of Appeals of Mississippi.
    July 24, 2018
    ATTORNEY FOR APPELLANT: M. JUDITH BARNETT
    ATTORNEYS FOR APPELLEE: JEFFREY BIRL RIMES SARAH, LINDSEY OTT
    EN BANC.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. This appeal arises from a custody dispute between Justin Bryce Brown and Kristin Franklin Anslum. Brown appeals the decision of the Simpson County Chancery Court awarding him and Anslum joint physical and legal custody of their minor child. After review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Brown and Anslum both lived with K.B. from the time of her birth until she was four months old; however, the two were never married. They separated on August 15, 2013. The separation spurred from an argument over free Saints football game tickets Anslum received from her boss. Because of conflicting stories, the actual events of that night are somewhat unknown.

¶ 3. Brown contends that he caught Anslum inviting another man to the game with her because he told Anslum they could not afford to attend. Anslum maintains that she was on the phone with Brown's mother asking her to babysit their minor child and Anslum's other child because Brown said he would not keep them even if he stayed home. Anslum alleges that Brown beat her up and hit her oldest daughter. However, Brown and his parents contend that Anslum knocked her head against the refrigerator and willfully fell to the floor. Further, they maintain that Anslum did not have any visible bruises after the alleged altercation.

¶ 4. After the separation, K.B. lived with Anslum from August 2013 to April 2014. In August 2013, Brown filed a complaint for determination of paternity and sole custody, and Anslum filed an answer and counter-claim, requesting sole custody of K.B. In November 2013, a temporary order was entered awarding Anslum temporary legal and physical custody subject to Brown's supervised visitation at his parents' home. However, in January 2014, Brown tested positive for methamphetamine. As a result, his right to visitation of K.B. was suspended. Subsequently, he took another drug test and passed. Then, upon the recommendation of the Guardian Ad Litem (GAL), the parties agreed to joint physical custody of K.B.

¶ 5. In both April 2014 and August 2014, Anslum was admitted to Brentwood Hospital. The first incident was because of an altercation between Anslum and her stepmother. Anslum alleged that her stepmother tried to choke her, but law enforcement reported seeing Anslum grabbing her own neck. The second incident was due to what was described as an overdose on Valium after a trip to Pensacola, Florida. It was alleged that Anslum was very intoxicated and could not adequately care for her children during the trip. However, Anslum disputes these allegations.

¶ 6. Brown's mother, Marcia, had custody of K.B. from April 2014 to August 2014 due to Anslum having a nervous breakdown and Brown failing his drug test. However, in July 2014, the GAL recommended that Brown receive the right to full custody of K.B., subject to Anslum's right to visitation every other week.

¶ 7. In 2016, Anslum's doctor gave her a good report and stated that Anslum was only on one medication at the time. Anslum also reported that her mood, maturity, and cognitive abilities had improved, and that her doctor expressed that she had consistently attended her appointments and had improved significantly.

¶ 8. In 2016, Brown was awarded temporary legal and physical custody of the minor child subject to Anslum's visitation rights. By this time, however, K.B. had already been living with Brown since August 2014-except when Brown's mother kept K.B. Anslum filed a petition for sole custody of K.B.

¶ 9. After a three-day trial, the chancellor awarded the parties joint physical and legal custody with the parties alternating their regular physical custody of K.B. Brown timely appeals.

STANDARD OF REVIEW

¶ 10. In Carter v. Escovedo , 175 So.3d 583, 585 (¶ 7) (Miss. Ct. App. 2015), this Court stated:

In child-custody decisions, the polestar consideration is the best interest of the child. We cannot substitute our judgment for the chancellor's. Instead, our standard of review is quite narrow. We only reverse child-custody determinations if the chancellor is manifestly wrong, clearly erred, or applied the wrong legal standard. When chancellors properly apply and consider the Albright[ ] factors, there is no manifest error.

(Citations omitted).

DISCUSSION

I. Whether parties have to expressly apply for joint custody in order for the chancellor to award joint custody.

¶ 11. Brown argues that the parties have to make an express "application" asking for joint custody in order for the chancellor to order joint custody. However, Brown does not cite any authority in favor of his argument outside of Mississippi Code Annotated section 93-5-24(2) - (3) (Rev. 2013). This code section states in part:

(2) Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.
(3) In other cases, joint custody may be awarded, in the discretion of the court, upon application of one or both parents.

¶ 12. This Court has held that the application of joint custody may be made by one or both parents if the arrangement is in the best interest of the child. See Crider v. Crider , 904 So.2d 142, 148 (¶ 16) (Miss. 2005). As Anslum pointed out in her brief, in irreconcilable differences cases the court may award joint custody when the parties request the court to determine custody. The Mississippi Supreme Court has held that "when parties consent in writing to the court's determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of 'joint application' in § 93-5-24(2)." Id. at 148 (¶ 15). Thus, a mere request to determine custody satisfies the "application" requirement. Id.

¶ 13. Accordingly, we find this issue is meritless.

II. Whether the chancellor improperly analyzed and applied the Albright factors.

¶ 14. Next, Brown argues that the chancellor erred in his analysis of the Albright factors. Specifically, Brown argues that the chancellor erred when weighing the following seven factors:

(1) age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which [parent] has the best parenting skills and which [parent] has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) moral fitness of the parents; and (7) other factors relevant to the parent-child relationship.

See Hollon v. Hollon , 784 So.2d 943, 947 (¶ 12) (Miss. 2001) (citing Albright , 437 So.2d at 1005 ).

¶ 15. "In order to determine whether or not the chancellor was manifestly wrong, clearly erroneous or abused his discretion in applying the Albright factors, we review the evidence and testimony presented at trial under each factor to ensure his ruling was supported by the record." Id. at (¶ 13). However, we note that the chancellor has "the ultimate discretion to weigh the evidence the way he sees fit." Johnson v. Gray , 859 So.2d 1006, 1013-14 (¶ 36) (Miss. 2003).

A. Age, Health, and Sex of the Child

¶ 16. The chancellor found this factor to be neutral because K.B.'s age would not pose as a problem for transportation. Brown asserts that the chancellor erred because he did not consider the child's stability under this factor. This Court has previously found that the chancellor may consider the child's age, health, and sex together as a single factor or separately. See Flowers v. Flowers , 90 So.3d 672, 680 (¶ 30) (Miss. Ct. App. 2012). However, Brown fails to cite any authority that supports broadening this factor to include stability. "[F]ailure to cite any authority is a procedural bar, and [the] reviewing court is under no obligation to consider the assignment." In re Estate of Forrest , 165 So.3d 548, 550 (¶ 7) (Miss. Ct. App. 2015).

¶ 17. We acknowledge that the chancellor actually considered Anslum's stability when favoring Brown in the "stability of the home environment" factor. Therefore, the chancellor did not err in finding that this factor was neutral, and this issue is meritless.

B. Continuity of Care Prior to the Separation

¶ 18. Brown disagrees with the chancellor's determination that the continuity of care factor was neutral. He does not agree that Anslum exercised primary care for approximately two years prior to Brown obtaining physical custody of K.B. Brown uses the testimony of three witnesses to support his argument: (1) his mother, Marcia, testified that both parties took care of the minor child prior to the separation; (2) Anslum's alleged ex-husband, Josh Cox, testified about his dissatisfaction with Anslum's performance as a stay-at-home mother and wife; and (3) Shirley Franklin, Anslum's grandmother, testified that others took care of the minor child while Anslum was admitted in Brentwood Hospital.

¶ 19. The chancellor has the ability to weigh the evidence as he sees fit including, "the credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation...." Brown v. Crum , 30 So.3d 1254, 1259 (¶ 16) (Miss. Ct. App. 2010) (citing Johnson , 859 So.2d at 1014 (¶ 36) ).

¶ 20. The chancellor found that there was evidence that both parties were a part of K.B.'s life, but that Anslum had exercised primary physical care for approximately a year or two as a stay-at-home mother. Therefore, the factor was neutral, and we find no error with the chancellor's finding of neutrality.

C. Parenting Skills and the Willingness and Capacity to Provide Primary Child Care

¶ 21. Brown disagrees that this factor favored him only slightly. The chancellor reasoned that Anslum had matured into a good parent and no incidents were reported in over two years. As stated above, "the chancellor has the ultimate discretion to weigh the evidence the way he sees fit." Johnson , 859 So.2d at 1013-14 (¶ 36). The chancellor chose not to hold much weight to the incidents or evidence that occurred before or in August 2014-which he had the discretion to do. Therefore, we decline to find that the chancellor erred in finding that this factor favored Brown slightly.

D. Employment of the Parent and Responsibilities of that Employment

¶ 22. The chancellor found that this factor favored Anslum because she was able to stay at home with K.B. and her other children. J.C. Warrington, Anslum's husband, testified that Anslum was a good stay-at-home mother. However, Brown argues that the chancellor erred because of the possibility of Anslum's husband leaving her without any financial support.

¶ 23. "This factor appears to be applied in two ways: either to prefer a parent who draws an income over one who does not, or, more often, to prefer a parent who works less or not at all and can therefore spend more time with his children." Owens v. Owens , 950 So.2d 202, 210 (¶ 26) (Miss. Ct. App. 2006). Although Brown would have preferred for the chancellor to have applied the factor as the former, the chancellor had the discretion to view the factor as the latter. The chancellor chose to look at employment as time away from K.B. However, the chancellor acknowledged that K.B. would be attending school soon, so it did not heavily weigh in Anslum's favor. Therefore, we find no error in the chancellor's findings regarding this issue.

E. Physical and Mental Health and Age of the Parents

¶ 24. The chancellor found this factor to be neutral because there was no evidence of Anslum's instability since August 2014. "Evidence showed that [Anslum] has a life long problem with depression which is now being successfully treated." However, Brown disagrees with the chancellor's findings.

¶ 25. The chancellor never stated that Anslum's problems were successfully treated. Rather, the chancellor noted that they were being successfully treated. Brown has misinterpreted the chancellor's words within this factor. The chancellor could have chosen to allocate more weight to this factor, but again it was within the chancellor's discretion. Johnson , 859 So.2d at 1013-14 (¶ 36). Moreover, neither the chancellor nor the GAL saw Anslum's instabilities early on as a hindrance to her ability to be a fit mother in the future. Accordingly, we find no error.

F. Moral Fitness of the Parents

¶ 26. The Court concluded that there was not any evidence to demonstrate that either party was unfit to parent K.B. But, Brown disagrees with the chancellor's findings because of Anslum's past relationships with men and inability to control her personal life. However, this Court has affirmed a chancellor's decision when the chancellor favored a parent who had issues in the past but chose to turn his or her life around. See Williams v. Stockstill , 990 So.2d 774, 778 (¶ 17) (Miss. Ct. App. 2008).

¶ 27. The chancellor stated that both parents had instability in the past, but both had settled down and appeared to have stable marital relationships. Accordingly, we find no error.

G. Other Factors Relevant to the Parent-Child Relationship

¶ 28. The Court weighed the fact that K.B. would be able to grow up with her siblings in Anslum's favor. Brown does not believe that this fact that Anslum had two other children should be a factor that weighs in her favor. This Court has previously held that "there was no requirement that the chancellor specifically address the question of siblings and custody." C.A.M.F. v. J.B.M. , 972 So.2d 656, 661 (¶ 23) (Miss. Ct. App. 2007). Further, it "is not a separate Albright factor but a question which the chancellor may consider along with the best interest of the child." Id. Therefore, this is a factor that the chancellor has the discretion to weigh as he sees fit, and we find no error.

III. Guardian Ad Litem Report and Recommendation

¶ 29. While Brown did not mention the chancellor's deviation from the GAL report, we think it is important to note that the GAL recommended that K.B.'s physical custody remain with Brown, and Anslum be given the standard visitation that usually is granted to non-custodial parents. However, the chancellor found inconsistencies between the GAL's recommendations and her testimony. The chancellor noted that the GAL voiced concerns about Anslum taking medication; however, during cross examination, the GAL admitted that there had been no incidents involving Anslum that concerned her since August 2014. Moreover, the chancellor noted that K.B. needed to be allowed to continue to bond with Anslum. As a result, the chancellor awarded joint legal and physical custody to both Brown and Anslum.

¶ 30. We have previously held that "only when the appointment of the guardian is mandatory and the chancellor disagrees with the guardian's report will we require the chancellor to summarize the guardian's recommendation and why the chancellor chose to disregard it." Tanner v. Tanner , 956 So.2d 1106, 1109 (¶ 13) (Miss. Ct. App. 2007). The chancellor properly listed and summarized the GAL recommendation and his reason for deviating.

CONCLUSION

¶ 31. Brown asserts that more of the factors should have weighed in his favor. But, the Albright factors are "not a mathematical equation." Hall v. Hall , 134 So.3d 822, 827 (¶ 19) (Miss. Ct. App. 2014) (citing Lee v. Lee , 798 So.2d 1284, 1288 (¶ 15) (Miss. 2001) ). Therefore, "the chancellor has the ultimate discretion to weigh the evidence the way he sees fit." Id.

¶ 32. Accordingly, we find that the chancellor did not err in awarding Brown and Anslum joint physical and legal custody of K.B. Further, the chancellor's on-the-record analysis was supported by substantial evidence.

¶ 33. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON AND GREENLEE, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY TINDELL, J.

CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 34. I concur with the majority's finding that no issue exists as to Brown's argument regarding the application for joint custody. However, I find that the evidence in the record fails to support the chancellor's award of joint custody of K.B. to Brown and Anslum. Since I find that the chancellor abused his discretion in awarding joint custody, I would therefore reverse and remand.

¶ 35. I submit that the chancellor erred in his findings regarding the following Albright factors, which in turn led to the chancellor's erroneous award of joint custody: continuity of care, parenting skills and willingness to provide primary child care, physical and mental health and age of the parents, and moral fitness of the parents. When reviewing an appeal of a child-custody decision, "our polestar consideration, like the chancellor's, must be the best interest of the child." O'Briant v. O'Briant , 99 So.3d 802, 805 (¶ 12) (Miss. Ct. App. 2012) ; see also Smith v. Smith , 206 So.3d 502, 512 (¶ 24) (Miss. 2016). Upon review, we cannot substitute our judgment for that of the chancellor; rather, "[w]e may only reverse a child-custody determination if the chancellor [was] manifestly wrong, clearly erred, or applied an erroneous legal standard." O'Briant , 99 So. 3d at (¶ 13). "When a chancellor properly applies and considers the child-custody factors from Albright , ... no manifest error [exists]." Id.

¶ 36. Regarding the factor of continuity of care, the chancellor found "[t]he continuity of care is neutral although the [c]ourt recognizes that [Brown] has exercised primary physical care [of K.B.] for approximately a year. Before that time, [Anslum] exercised primary physical care for approximately two years." However, the record reflects that Brown's mother, Marcia, testified that although both Anslum and Brown acted as K.B's primary care givers while they were still in a relationship, K.B. had actually "been with [Brown] the majority of the time" since their separation. Anslum's alleged former husband, Josh Cox, stated that he and Anslum moved in together a little less than a year after she and Brown separated. Cox testified that during this time, he often had to care for the children because Anslum's alcohol and substance abuse left her unable to provide care.

¶ 37. The chancellor held that the parenting skills factor "favor the father only slightly," explaining that Anslum made bad choices "early on in [K.B.]'s life." The chancellor opined that "evidence indicates that [Anslum] has since matured into a good parent and no such incidents have been reported in over two years." However, as stated, Josh Cox's testimony reflects that Anslum struggled with alcohol and substance abuse issues during the period of February 2014 until approximately May 2014, showing a lack of stability. The record reflects that at the time of trial, Anslum still received treatment for her anxiety from Dr. Joseph Kwentus, a psychiatrist. The record also reflects that Anslum had three children by three different men and that Anslum became pregnant by Warrington after only knowing him five or six months. Based on my review of the record, this factor clearly favors Brown.

¶ 38. The chancellor found that the willingness and capacity to provide child care "favors [Anslum,] who is a stay at home mom." The chancellor stated, however, that "both parents and their spouses are willing to care for [K.B.] and have extended families who are also willing to step in and help when needed." The chancellor also stated that he considered Warrington's testimony that "he intends to obtain a larger home for his family in order to have more space for the children." Brown, however, testified at trial that when he and Anslum lived together, he was the person who generally bathed and dressed K.B. on a daily basis. Brown also stated that during this time, he would take off work and care for K.B. as needed. Brown testified that he is currently employed in a job that provides him with sufficient income to care for K.B. Brown asserted that his job provides him with the flexibility to take off work and care for K.B. if needed. Brown also testified that K.B. was "a daddy's girl," and he explained that the two are very close. I therefore submit that this factor favors Brown.

¶ 39. The chancellor held that the factor regarding the physical and mental health of the parents was neutral, explaining that "[w]hile there is evidence of some instability early on, particularly with [Anslum], the testimony of the GAL at trial showed that since August 2014, there have been no further incidents that would indicate that she would be an unfit mother or that she was continuing in her previous irresponsible behavior. Evidence showed that [Anslum] has a life[-]long problem with depression which is now being successfully treated." Trial testimony reflects that prior to August 2014, Anslum suffered from anxiety and depression and abused alcohol and controlled substances. Testimony also reflects that in the years after her separation from Brown, Anslum required treatment at Brentwood Hospital on two occasions, including treatment for a drug overdose in August 2014. Anslum admitted at trial that she currently takes Valium and Enalapril to treat her anxiety and a panic disorder. The GAL also testified at trial, and set forth in her report to the chancellor, a description of two altercations where Anslum faked injuries and attempted to make it appear that someone hurt her. I submit that the record reflects that this factor favors Brown and that the record fails to support the chancellor's finding of this factor as neutral.

¶ 40. Regarding the moral-fitness factor, the chancellor stated that "[e]arly on in this case, it appeared that moral fitness would have favored [Brown]." The chancellor acknowledged Anslum's prior instability but held that "since she met and married J.C. Warrington, [Anslum] seems to have settled down." The chancellor ultimately concluded that "there was no evidence presented that showed [Anslum] to be morally unfit to be a mother to [K.B.]. Neither was there any evidence presented that would disqualify [Brown] from being morally fit to parent [K.B.]." However, as stated, trial testimony shows that for years Anslum abused alcohol and controlled substances, and she has even overdosed on drugs on more than one occasion since her separation from Brown. Anslum also currently suffers from anxiety and receives medical treatment. As stated, the record also reflects that Anslum had three children by three different men and that Anslum became pregnant by Warrington after only knowing him five or six months. The record reflects that the evidence shows this factor clearly favors Brown.

¶ 41. The GAL testified that based on her observations of K.B., both parties, and the homes of both parties, she recommended that Brown should have permanent primary physical custody of K.B. The GAL explained that Brown's home "is stable. It's adequate. That's where she's been. Bryce has been stable and he has been able to provide for her. She is in a day care setting which provides her a routine. It provides her education to help her to prepare for what lies ahead in kindergarten and the rest of her education." The GAL opined that K.B. "should certainly have visitation" with Anslum, though.

¶ 42. Regarding the GAL's report and recommendation, the chancellor set forth in his judgment that he "must disagree with the conclusions and recommendations as written." The chancellor explained that he felt inconsistencies existed between the GAL's report and her trial testimony. In acknowledging the importance of bonding with other siblings, the chancellor also opined that he felt that the GAL "has not given enough consideration to the entire family dynamic when making her recommendations." However, upon review of the record, I do not find the GAL's report inconsistent with the GAL's testimony or lacking in consideration of the entire family dynamic.

¶ 43. The chancellor also stated that "[w]hile not a deciding factor in the [c]ourt's decision, it is also noted that [K.B.] is a young female child and should be allowed more time to continue to bond with her mother." The record shows that K.B. was born on April 15, 2013, and she was three years old at the time of trial. Although the chancellor did not expressly name the tender-doctrine in his opinion, we recognize that "[a]ccording to the tender-years doctrine, if a child is of such tender age as to require the mother's care for [her] physical welfare, [she] should be awarded to the mother's custody." Montgomery v. Montgomery , 20 So.3d 39, 44 (¶ 22) (Miss. Ct. App. 2009) (internal quotation marks omitted). However, the supreme court has held that "the tender years doctrine has all but been subsumed into the Albright analysis." Lackey v. Fuller , 755 So.2d 1083, 1089 (¶ 30) (Miss. 2000). Now, "the age of a child is simply one of the factors that we consider in determining the best interests of the child." Id.

¶ 44. A review of the evidence in the record fails to support the findings of the chancellor and fails to support the award of joint custody. After my review of the record, I find that the chancellor erred in his application of several Albright factors. I would therefore reverse the chancellor's award of joint custody of K.B. to Brown and Anslum and remand for further proceedings consistent with this opinion.

TINDELL, J., JOINS THIS OPINION.

      To protect the minor child's confidentiality, we will refer to the child throughout this opinion as "K.B."

      Brown testified that he believed that Anslum was taking Xanax, Adderall, Trazodone, Hydrocodone, and Ambien. Anslum testified that at one point in time she had been prescribed Diazepam, Seroquel, Enalapril, Valium, and Anipryl. However, Anslum maintains that almost all of the prescriptions required a doctor's visit to retrieve them.

      Albright v. Albright , 437 So.2d 1003 (Miss. 1983).

      At the close of the trial, the chancellor asked whether there were any incidents between August 2014 and October 20, 2016, that showed or illustrated that the Court should find Anslum to be an unfit mother. The GAL responded "no." Further, the chancellor asked whether there were any evidence of irresponsibility, incidents of intoxication, drug impairment, or any fights or anything of the like. The GAL answered in the negative again. No one brought forth any additional evidence to the contrary.

      Albright v. Albright , 437 So.2d 1003, 1005 (Miss. 1983).


source: Caselaw Access Project

author: BARNES, J., FOR THE COURT:

license: Public Domain

text:
    Edward HOUSE a/k/a Edward Earl House, Appellant v. Pelicia HALL and Warden Frank Shaw, Appellees
    NO. 2017-CP-01018-COA
    Court of Appeals of Mississippi.
    July 24, 2018
    ATTORNEY FOR APPELLANT: EDWARD HOUSE (PRO SE)
    ATTORNEY FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN, JACKSON
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. The Lauderdale County Circuit Court dismissed Edward House's motion for post-conviction relief (PCR), determining that it lacked jurisdiction because it was not the county where House's convictions had originated. Finding the PCR motion was not properly filed in Lauderdale County, we affirm the circuit court's judgment of dismissal.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 7, 1993, House pleaded guilty to manslaughter and robbery with a deadly weapon in Panola County Circuit Court. For the robbery conviction, he was sentenced to ten years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for "parole, probation, good time, earned time, early release or any other administrative reduction in sentence." He was sentenced to twenty years for the manslaughter conviction, with the sentence to run consecutively to the sentence imposed for robbery.

¶ 3. On October 20, 2004, House entered a guilty plea in Sunflower County Circuit Court to conspiracy and taking contraband onto penitentiary grounds. The court ordered House to serve five years for the conspiracy conviction, with one year to serve, four years of post-release supervision (PRS), and a $3,000 fine. For taking contraband onto penitentiary grounds, he was sentenced to three years without eligibility for probation, parole, suspension of sentence, or earned time. The sentence was to run consecutively to the conspiracy sentence, as well as any other sentence currently being served.

¶ 4. Subsequently, House pleaded guilty to aggravated assault in Sunflower County Circuit Court on February 10, 2010, and he was sentenced to twenty years in the custody of the MDOC, with fifteen years to serve and five years on PRS. This sentence was to run concurrently with his 1993 Panola County sentences.

¶ 5. On December 7, 2011, House filed a request through the MDOC's Administrative Remedy Program (ARP), asserting the MDOC had erred in the computation of his sentences. Denying his request, the MDOC responded that House's most recent sentence for aggravated assault was to run concurrently with his other sentences "beginning the date the crime was committed"-June 25, 2007. It also noted that while House was serving his three-year sentence for contraband, he was removed from trusty status, but he would be reinstated to trusty status upon completion of that sentence. Aggrieved, House filed a second-step request, which the MDOC denied citing the same reasoning. House filed a habeas corpus appeal with the Mississippi Supreme Court on July 5, 2012. Because House had not appealed the MDOC's decision to the circuit court, the Mississippi Supreme Court dismissed the appeal for lack of jurisdiction.

¶ 6. Years later, on February 22, 2016, House filed another first-step ARP request, again arguing that his sentences were not computed correctly and claiming that he had completed his sentences. The MDOC responded that his file "ha[d] been reviewed and it ha[d] been determined that [his] file [was] correct." Unsatisfied with the response, House filed a second-step request alleging he should be eligible for parole. The MDOC denied his request, stating that although he had been eligible for parole on the manslaughter offense, the other charges were not parole-eligible, and his "current earliest eligibility date of release would be for [earned release supervision] and that date, as of today is 11/03/2017." On August 19, 2016, House filed another ARP-this time arguing that the MDOC made him serve his three-year sentence for contraband on prison grounds twice; thus, depriving him of trusty time from August 2013 to August 2016.

¶ 7. On October 17, 2016, House filed a PCR motion (Cause No. 2016-0294) in Sunflower County Circuit Court, reiterating his argument from his August 19, 2016 ARP request. Because House's motion was an appeal from the MDOC's ARP decision, Sunflower County found it had no jurisdiction over the matter and remanded the case to Lauderdale County where House was incarcerated. The record does not indicate any action taken by Lauderdale County Circuit Court with regard to this PCR motion. On February 24, 2017, House filed an interlocutory appeal of the Sunflower County's order to the supreme court (Cause No. 2017-M-252), asserting the action was a PCR because it involves "an issue of the Petitioner being incarcerated after he has completed all of his sentences which is an issue that falls squarely under [ Mississippi Code Annotated section] 99-39-1 [ (Rev. 2015) ]"; therefore, Sunflower County was the "only proper county for jurisdiction because it is the county that convicted him." The supreme court summarily denied House's interlocutory appeal.

¶ 8. On June 27, 2017, House filed a "Petition for Writ of Habeas Corpus" against the MDOC in Lauderdale County Circuit Court (Cause No. 17-CV-083(C) ), alleging he had completed his sentences and, thus, was being held in custody illegally. Lauderdale County dismissed for lack of jurisdiction, holding that House's motion "is a claim for post-conviction relief and therefore must be presented to the appropriate sentencing court," which is Sunflower County. House appeals the circuit court's dismissal of his motion.

DISCUSSION

¶ 9. The issue on appeal is whether the Lauderdale County Circuit Court erred in dismissing House's June 27, 2017 PCR motion for lack of jurisdiction. A circuit court's dismissal of a PCR motion will not be reversed on appeal "absent a finding that the decision was clearly erroneous." Weeks v. State , 139 So.3d 727, 729 (¶ 5) (Miss. Ct. App. 2013) (citing Whetstone v. State , 109 So.3d 616, 618 (¶ 6) (Miss. Ct. App. 2013) ). "However, we review questions of law, such as jurisdiction, utilizing a de novo standard of review." Id.

¶ 10. The MDOC submits that House's PCR motion is procedurally time-barred and barred as a successive writ (noting his 2016 PCR motion filed in Sunflower County). However, one statutory exception to the time bar or successive-writ bar is when a PCR movant demonstrates that either his sentence has expired or his parole, probation, or conditional release has been unlawfully revoked. Miss. Code Ann. §§ 99-39-5(2)(a)(b) & 99-39-23(6) (Rev. 2015). Since House's claim is that his sentences have expired, his motion would constitute an exception to any procedural bar.

¶ 11. Nevertheless, we find no error in the circuit court's ruling that it did not have jurisdiction. In his motion, House argued that his 2010 aggravated-assault sentence had expired because it was to run concurrently with his 1993 thirty-year sentence, and he was being detained in custody illegally. Because House was asserting a PCR claim, his motion should have been filed in Sunflower County, where his conviction originated. "[A] PCR motion is properly filed in the county where the prisoner was convicted, not where the prisoner is incarcerated." Nelson v. Bingham , 116 So.3d 172, 174 (¶ 6) (Miss. Ct. App. 2013) (citing Maston v. State , 768 So.2d 354, 355 (¶¶ 4-5) (Miss. Ct. App. 2000) ).

¶ 12. Accordingly, as no circuit court has ruled on House's claims, this Court does not have jurisdiction to consider the merits. See Graham v. State , 85 So.3d 847, 851 (¶ 7) (Miss. 2012) (holding "it was improper for the Court of Appeals to rule on the merits of [the petitioner's] motion without the circuit court doing so first, as the circuit court had exclusive, original jurisdiction"). House has never filed this specific claim-that his sentence has expired-before the proper court. He first raised the issue on interlocutory appeal from the Sunflower County's ARP decision. Next, he raised it in this PCR action in Lauderdale County where he was incarcerated, not the county where he was convicted. This claim must be brought by a PCR motion in Sunflower County, where he was convicted. Therefore, we affirm the circuit court's dismissal of House's PCR motion for lack of jurisdiction without prejudice to House's right to file a motion in the proper court.

¶ 13. AFFIRMED.

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

      As noted, House's motion filed in Sunflower County on October 17, 2016, only asserted error in the computation of his three-year sentence for taking contraband onto prison grounds in regard to his qualification for trusty time. It was not until House filed this interlocutory appeal with the supreme court that he raised the claim that he had served all his sentences and was being unlawfully detained. Thus, we find House's assertion that he brought identical issues in both circuit courts is incorrect.

      The defendants were MDOC Commissioner Pelicia Hall and MDOC Warden Frank Shaw. We will refer to them collectively as the MDOC.

      In a supplemental filing pursuant to Mississippi Rule of Appellate Procedure 28(k), the MDOC contends that House's appeal is moot as he was transferred to earned release supervision (ERS) on November 22, 2017. However, because an inmate under ERS is still considered an inmate under the jurisdiction of the MDOC, and may be required to serve the remainder of his sentence(s) upon a violation of ERS conditions, we do not find that the issue of the computation of his sentences is moot. See Miss. Code Ann. § 47-5-138(6) (Rev. 2015).


author: GRIFFIS, P.J., FOR THE COURT:

text:
    Chad SANDERS a/k/a Chad Rael Sanders a/k/a Chad R. Sanders, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00205-COA
    Court of Appeals of Mississippi.
    July 24, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN A. SUBER, GEORGE T. HOLMES, Jackson
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, Jackson
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Chad Sanders was convicted of first-degree murder and possession of a firearm by a convicted felon. Sanders was sentenced to life for the first-degree murder charge and five years for possession of a firearm by a convicted felon, with the sentences to run consecutively. He was ordered to pay a $7,000 fine, restitution in the amount of $6,500 to the Crime Victim's Compensation Fund, and all court costs.

¶ 2. Sanders subsequently filed a motion for a judgment notwithstanding the verdict (JNOV) and a motion for a new trial, which the circuit court denied. Sanders now appeals and argues an insufficiency of the evidence and ineffective assistance of counsel. Upon review, we find no error and affirm.

I. Sufficiency of the Evidence

¶ 3. Sanders first argues the evidence is insufficient to support his convictions. "A motion for [a JNOV] implicates the sufficiency of the evidence." Lenoir v. State , 224 So.3d 85, 90 (¶ 18) (Miss. 2017). When reviewing a case for sufficiency of the evidence, "[t]his Court considers each element of the offense and reviews all of the evidence in the light most favorable to the verdict." Id. "[We] must accept as true all credible evidence consistent with guilt" and "give the State the benefit of all favorable inferences that may reasonably be drawn from the evidence." Id. at 90-91 (¶ 18) (internal quotation mark omitted). "[We] may reverse only when, 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. at 91 (¶ 18) (internal quotation mark omitted). "Thus, if any rational trier of fact could have found each and every one of the elements of the crime beyond a reasonable doubt, when viewing the evidence in the light most favorable to the prosecution, the verdict must stand." Id.

a. First-degree Murder

¶ 4. Sanders was convicted of the first-degree murder of Timothy Butler. First-degree murder is defined as "[t]he killing of a human being without the authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being." Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2017).

¶ 5. Sanders claims "the State failed to prove that [his] actions ... cause[d] [Butler's] death." However, the trial testimony shows that two people, Andrew Barnes and Kevin Brown, witnessed Sanders shoot and kill Butler. Barnes testified that he heard multiple gunshots and saw Sanders shoot Butler. According to Barnes, prior to the shooting, Butler was outside of Sanders's house, leaning against a car, facing Sanders and talking to him. Barnes explained that Butler put his hands up defensively to shield himself from the bullets, but "was steady going down." Additionally, Brown testified that he heard multiple gunshots and saw Butler "scrambling for his life ... trying to get away from [Sanders]." However, according to Brown, "[Sanders] was pursuing [Butler], [trying] to kill him." Brown testified that even as Sanders jogged away, Sanders continued to look at Butler as if "to make sure [Butler] wasn't moving."

¶ 6. Dr. John Davis, a forensic pathologist and deputy chief medical examiner, confirmed that Butler's death was caused by multiple gunshot wounds. Dr. Davis opined that Butler's death was a homicide. Specifically, Dr. Davis testified that Butler received two gunshot wounds to his head, one to the left side and one to the back of his head. Additionally, there was a gunshot wound to Butler's left chest that proceeded upward into his neck and severed his spinal cord, and a "more superficial gunshot wound involving his left index and thick finger and thumb."

¶ 7. Dr. Davis's testimony that one of the bullets entered through the back of Butler's head supports the testimony of Barnes and Brown that Butler was trying to get away from Sanders. Also, Dr. Davis's testimony regarding Butler's superficial gunshot wound to his fingers is consistent with the testimony that Butler acted defensively in response to the gunshots. Thus, the testimonies of Barnes, Brown, and Dr. Davis support a finding that Sanders did unlawfully kill and murder Butler in the first degree.

¶ 8. Sanders asserts Brown's testimony conflicts with the testimony of Olga Bell. Specifically, Sanders asserts, "[t]he fact that the State's witness ... Bell testified that there was no one at the body of the victim when she arrived does not corroborate ... Brown's testimony that he went to the body after hearing the gunshots." Sanders argues "[t]his conflicting testimony ... weakens the sufficiency of the State's argument as to what actually happened during the incident, resulting in ... a reasonable doubt that [Sanders] did in fact fatally wound [Butler]." We disagree.

¶ 9. Bell testified that on the night of the shooting, she and her brother were at her parents' house when she heard three to four gunshots. Bell and her brother went outside and saw Sanders standing in the yard. They subsequently proceeded to check on Butler, who was lying in the street near Sanders's house. Bell, who is in the medical field, checked Butler's pulse and realized he was dead. Bell explained that, at that time, she and her brother were the only ones at the scene with Butler's body. However, Bell saw Brown walking up towards them, crying. Bell stated Brown was walking from an area where Barnes's mother lives.

¶ 10. Brown testified that after the shooting, he went to help Butler, but got scared and ran to Barnes's mother's house. However, shortly thereafter, Brown returned to the scene. Brown recalled seeing Bell and her brother, but could not "recall whether it was when [he] returned or before [he] left that [he] saw them." Thus, despite Sanders's assertion, Bell's and Brown's testimonies do not appear to conflict. Regardless, any "[c]onflicts in the evidence are for the jury to resolve." Williams v. State , 64 So.3d 1029, 1033 (¶ 13) (Miss. Ct. App. 2011).

¶ 11. Sanders further asserts Brown's testimony is inconsistent with the testimony of Dr. Davis. Specifically, Sanders claims Brown's testimony that Sanders was "close" to Butler at the time of the shooting conflicts with Dr. Davis's testimony that Butler's injuries "were indeterminate range or distant range gunshot wounds." However, it is undisputed that Butler died from multiple gunshot wounds. Brown testified that after the shooting began, Butler tried to get away from Sanders. Indeed, one of Butler's gunshot wounds was to the back of his head. Thus, the record shows that Sanders's proximity to Butler at the time each shot was fired varied. Nevertheless, the alleged conflicting testimony was considered and resolved by the jury. Thus, Sanders's claim fails.

¶ 12. Considering the evidence in the light most favorable to the State, we find sufficient evidence exists to support Sanders's conviction of first-degree murder. Thus, the circuit court properly denied Sanders's motion for a JNOV on this issue.

b. Possession of a Firearm by a Convicted Felon

¶ 13. "In order to prove the crime of possession of a firearm by a convicted felon, the State must simply prove two things: (1) the defendant was in possession of a firearm, and (2) the defendant had been convicted of a felony crime." Cooley v. State , 14 So.3d 63, 66 (¶ 13) (Miss. Ct. App. 2008). Here, the record shows Sanders had been convicted of a felony crime, specifically, the distribution of a controlled substance. The record further shows both Barnes and Brown saw Sanders shoot Butler. Moreover, Johnnie Young testified that shortly after the shooting, he saw Sanders carrying a black revolver.

¶ 14. According to Young, Sanders approached him and asked for his cell phone. Young stated he gave Sanders his cell phone because Sanders was holding a gun. Sanders claims Young's testimony is insufficient to establish the element of possession since Young had consumed alcohol prior to observing Sanders with a revolver.

¶ 15. Young testified that he, along with his cousin, Bell's brother, and Sanders rode around earlier that morning and drank beer, but split up "before 12:00 [noon]." Although Young admitted to drinking one, twenty-four ounce Budweiser earlier in the day, the shooting occurred that night around 9:00 p.m. Thus, it is unlikely that alcohol consumed prior to noon would have affected Young's memory and judgment that night. Nevertheless, "[i]t is the role of the jury to evaluate the veracity of [the] witnesses." Montana v. State , 822 So.2d 954, 965 (¶ 51) (Miss. 2002). The jury heard testimony from three men who saw Sanders with a gun. It was the jury's province to determine the credibility of those witnesses and to resolve any conflicts in the evidence. Id.

¶ 16. We find sufficient evidence exists to support Sanders's conviction of possession of a firearm by a convicted felon. As such, we do not find the circuit court erred in denying the motion for a JNOV.

II. Ineffective Assistance of Counsel

¶ 17. Sanders further argues he received ineffective assistance of counsel. Sanders asserts his trial counsel failed to comply with Uniform Circuit Court Rule 9.04, which caused his expert witness's testimony to be excluded. According to Sanders, his expert witness was going to testify that he did not kill Butler and did not stand over Butler and shoot him. Sanders claims that had his expert witness been permitted to testify, such testimony would have established reasonable doubt such that a jury would not have convicted him.

¶ 18. To prove ineffective assistance of counsel, Sanders must show: (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "We look at the totality of the circumstances to determine whether counsel's [performance was] both deficient and prejudicial." Dartez v. State , 177 So.3d 420, 423 (¶ 19) (Miss. 2015). "[A] presumption exists that an attorney's performance falls within the wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic." Braggs v. State , 121 So.3d 269, 273 (¶ 11) (Miss. Ct. App. 2013). "Only where it is reasonably probable that, but for the attorney's errors, the outcome would have been different, will we find that counsel's performance was deficient." Dartez , 177 So.3d at 423 (¶ 19).

¶ 19. "[G]enerally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings." Bell v. State , 202 So.3d 1239, 1242 (¶ 12) (Miss. 2016). This Court may address "ineffective-assistance-of-counsel claims on direct appeal only where (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demeanor of witnesses, etc., are not needed." Id.

¶ 20. The record does not affirmatively show ineffectiveness of constitutional dimensions. Additionally, there is no stipulation by the parties that the record is adequate to address this claim. In fact, the State asserts that "this issue would best be reviewed in a motion for postconviction relief rather than on direct appeal." Thus, we are unable to adequately and properly address Sanders's ineffective-assistance-of-counsel claim on direct appeal. We therefore deny this issue without prejudice to afford Sanders the option to pursue his claim in a post-conviction proceeding. See Williams v. State , 228 So.3d 949, 952-53 (¶ 14) (Miss. Ct. App. 2017) ("[Appellant]'s ineffective-assistance-of-counsel claim is more appropriately brought during postconviction proceedings, and we therefore deny relief without prejudice as to [his] right to pursue this claim during postconviction proceedings.").

CONCLUSION

¶ 21. We find sufficient evidence to support Sanders's convictions of first-degree murder and possession of a firearm by a convicted felon. Sanders's ineffective-assistance-of-counsel claim is denied without prejudice. The judgment of the Pike County Circuit Court is affirmed.

¶ 22. AFFIRMED.

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


author: CARLTON, J., FOR THE COURT:

text:
    Desmond Jamar PATTERSON a/k/a Desmund Patterson, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00564-COA
    Court of Appeals of Mississippi.
    July 31, 2018
    ATTORNEY FOR APPELLANT: WILLIAM C. STENNETT, Tupelo
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JASON L. DAVIS, ABBIE EASON KOONCE, Jackson
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. An Alcorn County jury convicted Desmond Patterson of the attempted murder of Kelin Edgeston. The trial court sentenced Patterson to forty years in the custody of the Mississippi Department of Corrections, with ten years suspended. Patterson now appeals his conviction and sentence, arguing that the jury verdict is against the overwhelming weight of the evidence and that the trial court erred in allowing testimony regarding Patterson's Facebook account into evidence. Finding no error, we affirm the trial court's judgment.

FACTS

¶ 2. Patterson was indicted for the attempted murder of Edgeston stemming from an April 15, 2016 altercation in Corinth, Mississippi. During the altercation, Patterson allegedly fired a gun in Edgeston's direction. Edgeston fled, and Patterson followed him. Patterson hit Edgeston in the back of the head with the gun and allegedly fired two additional shots, injuring Edgeston.

¶ 3. At a trial held February 27, 2017 through March 3, 2017, the jury heard testimony from Corinth Police Department officers who responded to the 911 call reporting the shooting. The jury also heard testimony from witnesses to the shooting, as well as testimony from the surgeon who treated Edgeston's injuries. Edgeston and Patterson both testified.

¶ 4. Edgeston testified that he had known Patterson for approximately a year and half prior to the shooting. According to Edgeston, the two men started out as friends, but then "things went ... sour." Edgeston explained that he and Patterson had disagreements regarding their work at Sonic, and they both were eventually fired. Edgeston testified that after he and Patterson were fired, his situation with Patterson escalated-Patterson began threatening to kill him and even pulled a gun on him. Edgeston also testified about two incidents that occurred prior to the shooting: one when Patterson saw Edgeston drive past him and Patterson fired a gunshot in the air, and another one at a child's birthday party where Patterson pulled a gun on Edgeston, held it to his face, and threatened to kill him. Edgeston also testified that he reported Patterson's threats to a police officer.

¶ 5. Regarding the events surrounding the shooting, Edgeston testified that on the afternoon of April 15, 2016, he was visiting with a friend about some CDs. Edgeston saw Patterson walking toward him with a gun, and Patterson started firing at Edgeston. Edgeston testified that Patterson pointed the gun "directly" at him, and Edgeston ran to get away from Patterson. Edgeston stated that he spotted a car across the street with the door open, so he ran to the car for cover. Edgeston got on his knees behind the car door and asked Patterson why he was shooting at him. Edgeston stated that Patterson then "smacked [him] in the back of the head" and the gun went off, firing a shot. Patterson then stood over Edgeston while Edgeston "begged for [his] life." Edgeston testified that while he was on the ground, Patterson then fired another shot toward his head. Edgeston testified that during the incident, he was unarmed. He further testified that he did not even own a gun.

¶ 6. Tyesha Gunn, Patterson's cousin, testified that around 3 p.m. on April 15, 2016, she and her sister, Zharia Cobbs, and their friends Latonya Holland and a man named Evoris, were driving around town. Gunn saw Patterson walking toward "the projects." Patterson flagged Gunn down and asked to ride with her. Patterson entered the vehicle and said "drive and then I'll let you know when I'll get out." Gunn testified that she could tell that Patterson was drunk. Gunn stated that she let Patterson out of the vehicle "close to the projects on Mitchell Street." She observed Patterson pull out a gun and walk toward a house. Gunn testified that she did not know that Patterson had a gun with him until she saw him pull it out after he exited her vehicle. Gunn testified that she also saw Edgeston on the street. Accordingly to Gunn, Patterson fired multiple gunshots in Edgeston's direction. Gunn explained, however, that although Patterson fired the shots toward Edgeston, he did not aim "like he was trying to shoot him"; rather, like he was trying to get Edgeston's attention. Gunn testified that Edgeston looked scared and started running. Gunn testified that Cobbs and Holland tried to stop Patterson and pull him back into the vehicle, but they were unsuccessful.

¶ 7. Gunn testified that Edgeston ran and hid next to a car, and then he got down on his knees on the ground. Gunn stated that she did not ever see Edgeston with a gun. Gunn recounted that Patterson then stood over Edgeston and "shot him a couple of times." Gunn later explained that although she heard the gunshots and saw Patterson standing over Edgeston, she did not actually see Patterson shoot Edgeston. Gunn also stated that she did not witness Patterson strike Edgeston with the gun.

¶ 8. Officer Timothy Boggs testified that on April 15, 2016, he was working for the Corinth Police Department and received a radio call regarding a shooting on Mitchell Street. Boggs responded to the call and was the first police officer on the scene. Officer Boggs testified that when he arrived at the scene of the shooting, he observed a man helping a second man get inside of a vehicle. Boggs described the second man as "bloody from head to toe," and he observed that the second man appeared to be bleeding from his head. Officer Boggs approached the two men to find out what happened. The first man told him "I've got to take [the second man] to the hospital. I've got to get him to the hospital." Officer Boggs called his dispatcher, reported the tag number of the vehicle carrying the bloody man, and informed the dispatcher that the vehicle was heading to the hospital. Officer Boggs testified that he next secured the crime scene. At the scene, he observed blood on the ground, along with a cup and a magazine from a gun.

¶ 9. Detective Jerry Rogers of the Corinth Police Department also responded to the call about the shooting. Detective Rogers testified that by the time he arrived, Officer Boggs had already secured the area and taped off the crime scene. Detective Rogers testified that he observed blood on the driveway and a magazine from a handgun, as well as a .40 caliber live round on the driveway.

¶ 10. Investigator Heather Russell of the Corinth Police Department testified that she interviewed approximately five witnesses at the crime scene, including Cotanga Franklin, who witnessed the entire event. The witnesses informed Investigator Russell that they heard multiple gunshots, and they identified Patterson as the shooter. Investigator Russell also interviewed Edgeston in the hospital, and he identified Patterson as the person who shot him.

¶ 11. Investigator Russell also interviewed Patterson. Investigator Russell testified that Patterson denied shooting Edgeston, but he admitted to possessing a gun and striking Edgeston in the head with the gun. Investigator Russell stated at trial that Edgeston's medical records showed that Edgeston was hit in the back of the head with a gun and that two bullets grazed his head. According to Investigator Russell, Patterson also informed her where he had stored the gun used in the altercation, and officers were able to recover it. During cross-examination, Investigator Russell testified that Patterson told her that he purchased the gun for protection "from the beef that he and [Edgeston] had had with one another."

¶ 12. Investigator Russell also testified that during her interview with Patterson, he pulled up his Facebook account on a computer and showed it to her. Investigator Russell then obtained a search warrant for Patterson's Facebook account. After obtaining the search warrant, Investigator Russell went to Facebook's law enforcement portal, verified that she was a certified law enforcement officer, and also verified that she was making an official request for records. Investigator Russell then received access to Patterson's account, including his messages. At trial, the State entered Facebook messages sent by Patterson into evidence, without objection by the defense. In all of the messages presented at trial, Patterson admitted to wanting to kill Edgeston, and he detailed the events surrounding the shooting.

¶ 13. Cotanga Franklin testified that she lived in a house on Mitchell Street during April 2016. Franklin testified that around 3 p.m. on April 15, 2016, she heard two gunshots. Franklin stated that she then looked out of her door and "noticed [Patterson] walking down the street with a gun in his hand." Franklin testified that Patterson pointed the gun "across the street where [Edgeston] was [standing]." According to Franklin, Patterson fired the gun again in Edgeston's direction as he approached. Edgeston then "got on his knees" with Patterson standing over him. Edgeston called out "Please don't shoot me. No, [Patterson], please don't shoot me." Patterson "swung the pistol and hit [Edgeston] in the head," and the gun fired. Franklin testified that it looked like Patterson "was struggling with the gun," and then he pointed it at Edgeston again and "fired it directly at him." At that point, Franklin went to wrap her shirt around Edgeston's head to stop the bleeding. Patterson left the scene, and Franklin testified that "[h]e just looked like he had frustration in his eyes."

¶ 14. Franklin also testified about an incident a week prior to the shooting, where she and several other neighbors witnessed Patterson get in Edgeston's face, put a gun to Edgeston's head, and ask him "what was that [Edgeston] was talking [about]." Franklin testified that Patterson informed Edgeston, "I'll shoot you, I'll kill you.... I'll kill you and your kids." Edgeston did not have a gun, and he held up his hands while Patterson held the gun to his head. Edgeston also informed Franklin that Patterson had "shot [his gun] in the air behind him."

¶ 15. Dr. Andy Holley, the State's expert witness in the field of general surgery and trauma care, was working at Magnolia Regional Health Center on April 15, 2016, and provided treatment for Edgeston. Dr. Holley testified that Edgeston's two wounds on the top of his head were consistent with gunshot wounds. Dr. Holley also testified that Edgeston's wound on the back of his head was consistent with trauma, whether a fall or blunt force from a strike.

¶ 16. Latonya Holland, Patterson's cousin, testified for the defense. Holland stated that on the afternoon of April 15, 2016, she, Gunn, Cobbs, and another man were driving around Corinth and spotted Patterson. Patterson waved them down, and he got inside of the car with them. Holland testified that they eventually dropped Patterson off at a street "coming into the projects." Patterson started walking down the street. Cobbs exited the vehicle and ran down the street after Patterson, calling out to him and asking him to come back. Holland testified that she ran after Patterson and Cobbs. Holland stated that she saw Patterson approaching Edgeston, and she did not realize Patterson had a gun until he pulled it out and started firing it "directly at [Edgeston]." Holland observed Edgeston run behind a car to hide. Patterson then hit Edgeston on the head with the gun, and the gun went off, firing a shot.

¶ 17. Patterson testified in his own defense. According to Patterson, he and Edgeston worked together at Sonic. Their relationship started out friendly, but disagreements at work led to the two men getting fired. Patterson testified that after they were fired, he heard Edgeston drive his car past Patterson's house "trying to make loud noises with the tires." Patterson testified that on another occasion, Edgeston drove by Patterson's house, stopped his car, squealed his tires, and fired gunshots in the air. Patterson testified that he had several other interactions with Edgeston where Edgeston possessed a gun. Patterson stated that as a result of these interactions, he purchased a gun for protection from Edgeston.

¶ 18. The jury returned a guilty verdict, and on March 3, 2017, the trial court sentenced Patterson to forty years in the custody of the MDOC, with ten years suspended. The trial court also sentenced Patterson to five years of postrelease supervision upon his release, and ordered him to pay $431.50 in court costs, a $1,000 fine, $200 to the Corinth Police Department's investigative fund, $125 to Magnolia Surgical Group, $423 to Magnolia Imaging Center, $660 to Magnolia Physicians Services, and $8,539.50 to Magnolia Hospital.

¶ 19. After Patterson was convicted and sentenced, Patterson's trial counsel filed a motion requesting to withdraw and asking the trial court to appoint Patterson with counsel on appeal. The trial court entered an order appointing the Indigent Appeals Division of the Office of State Public Defender to represent Patterson and allowed Patterson time to file an out-of-time appeal.

¶ 20. On April 28, 2017, Patterson filed his notice appealing his conviction and sentence, as well as the denial of his posttrial motions. However, the record reflects that Patterson failed to file any posttrial motions. On September 20, 2017, Patterson's counsel from Indigent Appeals filed a motion to withdraw and substitute counsel. This Court entered an order granting that motion on September 28, 2017. Patterson's current appellate counsel subsequently entered his notice of appearance in the case.

DISCUSSION

I. Weight and Sufficiency of the Evidence

¶ 21. Patterson first argues that the jury's verdict finding him guilty of attempted murder is against the overwhelming weight of the evidence presented at trial. In his brief, Patterson also appears to challenge the sufficiency of the evidence. We will therefore address both standards.

¶ 22. "When reviewing a challenge to the weight of the evidence, the Court will disturb a jury verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Jones v. State , 154 So.3d 872, 880 (¶ 24) (Miss. 2014) (internal quotation mark omitted ). We review the evidence in the light most favorable to the verdict. Roberts v. State , 229 So.3d 1060, 1068 (¶ 29) (Miss. Ct. App. 2017).

¶ 23. When testing the sufficiency of the evidence on appeal, we apply a de novo standard of review. Brooks v. State , 203 So.3d 1134, 1137 (¶ 11) (Miss. 2016). "The relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Hearn v. State , 3 So.3d 722, 740 (¶ 54) (Miss. 2008) (citation omitted). We also view the evidence in the light most favorable to the State. Henley v. State , 136 So.3d 413, 415 (¶ 8) (Miss. 2014).

¶ 24. As a procedural matter, we must first address whether Patterson's claims are properly before us on appeal. After the State rested its case-in-chief, defense counsel moved for a directed verdict, arguing that the State failed to meet its burden of proof. Defense counsel explained that although the State presented testimony from its witnesses and also Patterson's Facebook messages, the State presented very little physical evidence to prove that Patterson was guilty of attempted murder. The trial court denied the defense's motion, ruling as follows:

Looking at the evidence most favorable to the nonmoving party, the [c]ourt is of the opinion the State has made a prima facie case of attempted murder. The evidence is such that the [c]ourt finds the State's made an overwhelming case of attempted murder as far as the charge going forward and will be a question of fact to be presented to the [j]ury.

¶ 25. The record shows that Patterson failed to renew his motion for a directed verdict at the close of the evidence. We recognize that

[w]hen the defendant proceeds with his case after the [S]tate rests and the court overrules the defendant's motion for a directed verdict, the defendant waives the appeal of the denial of his motion for a directed verdict unless he renews his motion for a directed verdict at the conclusion of all of the evidence.

Darnell v. State , 202 So.3d 281, 285 (¶ 13) (Miss. Ct. App. 2016) (quoting Holland v. State , 656 So.2d 1192, 1197 (Miss. 1995) ) (internal quotation mark omitted). "In the absence of a renewal of the directed-verdict motion, a request for a peremptory instruction, or a motion for a [judgment notwithstanding the verdict], an appellant has waived the sufficiency error on appeal." Id. The record shows that Patterson also failed to request a peremptory instruction or file posttrial motions. Patterson is therefore barred from challenging the sufficiency of the evidence on appeal.

¶ 26. Additionally, the record reflects that Patterson failed to file a motion for a new trial. As a result, Patterson is also barred from challenging the weight of the evidence on appeal. Id. at (¶ 14).

¶ 27. Procedural bar notwithstanding, our review of the record shows that the State presented sufficient evidence at trial to support the jury's verdict of guilty. This issue lacks merit.

II. Admission of Facebook Messages into Evidence

¶ 28. Patterson next claims that the trial court committed plain error by allowing testimony regarding Patterson's Facebook entries to be entered into evidence at trial. Patterson states that he testified at trial that his Facebook messages were not true and that he only wrote them in order to "look good." Patterson asserts that the prejudicial value of the untrue statements made in his Facebook messages outweighs the probative value, and therefore the trial court's admission of the Facebook messages amounted to plain error.

¶ 29. The record reflects that during its preliminary instructions to the jury, the trial court explained that the State and the defense had agreed upon various exhibits that would be entered into evidence, including records from Patterson's Facebook account. The record reflects no objection by the defense to the admission of the records from Patterson's account, including his Facebook messages, at any point prior to or during the trial. The record also reflects no objection by the defense to Investigator Russell's testimony regarding Patterson's Facebook messages.

¶ 30. We review a trial court's admission of evidence for an abuse of discretion. Debrow v. State , 972 So.2d 550, 552 (¶ 6) (Miss. 2007). However, when a defendant fails to make a contemporaneous objection to the introduction of evidence at trial, he waives that assignment of error on appeal. Johnson v. State , 904 So.2d 162, 170 (¶ 23) (Miss. 2005). The defendant must then "rely on plain error to raise the assignment on appeal." Id. Since Patterson failed to make a contemporaneous objection to Investigator Russell's testimony regarding his Facebook messages or the trial court's admission of Patterson's Facebook account into evidence, we will review this issue for plain error. We recognize that "[a]n error is deemed plain error when the substantive rights of a defendant are affected." Id. (internal quotation marks omitted). The supreme court has held that "in order to determine if plain error has occurred, we must determine if the trial court has deviated from a legal rule, whether that error is plain, clear, or obvious, and whether the error has prejudiced the outcome of the trial." Green v. State , 183 So.3d 28, 31 (¶ 6) (Miss. 2016) (internal quotation mark omitted).

¶ 31. At trial, Investigator Russell testified that during her investigation into the shooting, she was informed that Patterson had posted a message through his Facebook account two days prior to the shooting and tagged Edgeston in the post. Investigator Russell testified that she logged on to Facebook, pulled up Patterson's account, and read the post. The State entered the post into evidence, and Investigator Russell read the post to the jury:

[Edgeston,] I thought I let [you] ... know but I see u still out here running my name like a ... bitch ... I see [I'm gonna] have to touch your for u to really find out who the fuck u playin[g.] No more talk[,] see me bitch ... and for everybody [who] see[s] this and [Edgeston] act like he don't see please let him know what[']s up[, I] ain't got no time to be playin[g,] [I'm gonna] get this shit over wit[h].

¶ 32. According to Investigator Russell, Edgeston responded to Patterson's post, writing as follows:

I'm a family man. Drama not needed. My kids and the one on the way [are going to] have the[ir] daddy around to look up to with no worries. This black on black ignorant shit [is] for the birds. You see where it got us both, jobless for this ignorance, knock[ed] down once again. I ain[']t fucking with you so why [are] you fuck[ing] wit[h] me. Be the bigger man. [L]ord knows I[']m tryin[g].

¶ 33. Investigator Russell testified that when she interviewed Patterson, she asked him about his Facebook post. Investigator Russell stated that Patterson then accessed his Facebook account and showed it to her. Investigator Russell testified that after interviewing Patterson, she obtained a search warrant for Patterson's Facebook account. She then requested the records of Patterson's account through Facebook's law enforcement portal. Investigator Russell confirmed that the records had been attested to by the custodian of the records at Facebook as being a true and accurate document of Patterson's account.

¶ 34. The State introduced several conversations between Patterson and his friends, sent via Patterson's Facebook account. Investigator Russell testified that prior to the April 15, 2016 shooting, Patterson sent a Facebook message to someone threatening to "shoot [Edgeston's] car up." Investigator Russell also testified that in a message sent by Patterson the day after the shooting, he told a friend, "I shot a [man] yesterday."

¶ 35. Investigator Russell testified as to another message Patterson sent the day after the shooting where he explained that before the shooting, Edgeston "put a gun in my face wit[h] my son in the car and go say [f]uck yo son I'll shoot him too[.] I told [Edgeston] just like this u let me pull off without pullin[g] that trigger I'm killing u and I meant that[.]" In the message, Patterson stated that on the day of the shooting, he saw Edgeston. Edgeston called out a profanity to Patterson, so Patterson "turn[ed] up and started dumping at [Edgeston. H]e ran and fell by the car and I smacked him wit[h] the pistol and he started [r]ollin[g] for what reason[.]" Patterson then admitted "I shot that bitch in the head[.]" Investigator Russell testified that she believed the phrase "started dumping" meant that Patterson fired multiple rounds at Edgeston.

¶ 36. The State entered in additional Facebook messages between Patterson and his friends, and in all of these messages, Patterson admitted that he shot Edgeston and had been threatening to do so for weeks, and also provided details about the crime.

¶ 37. At trial, Patterson denied trying to shoot Edgeston or attempting to murder him. When asked by defense counsel why he sent Facebook messages stating otherwise, Patterson responded "I don't know. I was just ... upset and I was just talking ... [and] trying to make myself look good[.]"

¶ 38. Upon review, we find no plain error in the trial court's admission of Patterson's Facebook records into evidence or Investigator Russell's testimony regarding Patterson's Facebook messages. Patterson was afforded the opportunity to testify in his own defense at trial. During his testimony, Patterson denied the veracity of the messages. See Clark v. State , 122 So.3d 129, 134 (¶ 16) (Miss. Ct. App. 2013). Jurors are tasked with evaluating the credibility of the witnesses at trial, and in so doing, "jurors are allowed latitude in deriving facts from each witness's assertions[ ] and ... must determine the value of the conflicting testimony introduced during the trial." Flowers v. State , 144 So.3d 188, 196 (¶ 26) (Miss. Ct. App. 2014). This issue lacks merit.

¶ 39. AFFIRMED.

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

      Patterson was indicted for attempted murder pursuant to Mississippi Code Annotated section 97-1-7 (Rev. 2014).

      Gunn also stated that Edgeston is married to her cousin.

      Our review of the record reflects no issue regarding the authentication of Patterson's Facebook account. See Boyd v. State , 175 So.3d 1, 4-5 (¶¶ 14-16) (Miss. 2015).