author: BARNES, J., FOR THE COURT: WESTBROOKS, J., DISSENTING:

text:
    J.E., Natural Grandmother and General Guardian of A.C., a Minor, and C.A., Natural Mother and Next Friend of A.C., a Minor, Appellants v. JACKSON PUBLIC SCHOOL DISTRICT, Appellee
    NO. 2016-CA-01566-COA
    Court of Appeals of Mississippi.
    July 31, 2018 Rehearing Denied November 6, 2018
    ATTORNEYS FOR APPELLANTS: DAVID NEIL MCCARTY, THOMAS A. WALLER, ROBERT ALLEN SMITH JR., RIDGELAND
    ATTORNEYS FOR APPELLEE: STEVEN LLOYD LACEY, JOANNE N. SHEPHERD, JACKSON, KASHONDA LEKESHA DAY, RIDGELAND, CYDNEY JEHEIDA ARCHIE
    BEFORE LEE, C.J., BARNES AND TINDELL, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. A.C.'s mother and grandmother (the plaintiffs) sued the Jackson Public School District (JPS) under the Mississippi Tort Claims Act (MTCA) after A.C., a special-education student, was involved in a sexual encounter with another special-education student. The complaint alleged A.C. was sexually assaulted by the other student as a direct result of JPS's failure to provide proper care and supervision of its students. After a bench trial, the trial court ruled in favor of JPS, finding that JPS did not breach its general ministerial duty to supervise the students properly and that even if it had, there was no evidence that the breach was causally related to the sexual encounter. The plaintiffs appealed. We find no manifest error in the trial court's ruling and affirm.

FACTS

¶ 2. On October 9, 2013, sixteen-year-old A.C. was walking to class in the hallway of Callaway High School in Jackson, Mississippi, when she and a nineteen-year-old male student entered a bathroom and had sex. The sexual encounter was confirmed by a rape kit at a local hospital.

¶ 3. At the time of the incident, A.C. was a special-education student in the ninth grade at Callaway. She had Down Syndrome. Psychiatrist Dr. Mark Webb evaluated A.C. and found that she had a "severe intellectual disability." He testified that she was emotionally "very childlike" and functioned on the level of a five or six year old. He opined that, to a reasonable degree of medical probability, she was incapable of consenting to the sexual act. This finding is undisputed by JPS on appeal. The male student, T.H., was also a special-education student. Both A.C. and T.H. had individualized-education programs (IEP), which specified the education plan and care they were to receive at school. Per T.H.'s IEP, he had a history of behavioral issues, including stabbing another student in the head with a pencil, making obscene gestures with his tongue, using inappropriate language, and writing profanity on the board in the classroom. He was also known to "touch ... girls in their private areas whenever he thinks that [the teacher is] not aware."

¶ 4. On the day of the incident, A.C. and T.H. had been in homeroom together on the first floor and were dismissed to go to their next classes. The special-education assistant teacher testified that T.H. was not left alone with other students due to his past behavior. To keep him separated from the other students when homeroom was dismissed, the assistant teacher sent T.H. out of the classroom several minutes before the other students and to the left toward his ROTC class down the hall on the first floor. The assistant teacher testified that on the day in question, she followed her normal procedure of watching him walk to his ROTC class, and she believed he had entered the classroom, although she could not be sure because the classroom doorways are in inlets, and she could not see the door. After she believed he was in the classroom, the assistant teacher dismissed A.C. and the other students to the right to go to art class on the second floor. She testified that she watched them walk to the elevator and get on it, but she did not follow them.

¶ 5. Moments later, on the second floor, a security officer saw A.C. and T.H. near one another. T.H. was behind A.C. and stopped to high five the security officer prior to proceeding down the hallway. The security officer did not follow them. This was captured on surveillance video. T.H. and A.C. then entered the girls' bathroom around the corner, outside the view of the surveillance camera. They were missing from class for approximately twenty minutes, during which time the incident occurred. A.C. was found exiting the bathroom and adjusting her clothes by the assistant principal, who then entered the bathroom and found T.H. hiding inside. A.C.'s mother was not notified of the incident, and A.C. was sent home on the bus as usual. A.C.'s mother later learned of the incident from A.C.'s cousin, who also attended Callaway.

¶ 6. On October 7, 2014, A.C.'s mother and grandmother filed a complaint under the MTCA against JPS in the Hinds County Circuit Court, First Judicial District. The complaint alleged negligence, violation of state statutes, breach of contract, tortious breach of contract, and an argument under the theory of res ipsa loquitur. The plaintiffs alleged that JPS was under a ministerial duty to provide A.C. with an escort to and from class at school and that its failure to do so led to the sexual assault.

¶ 7. JPS raised various affirmative defenses, including immunity under the MTCA for any claims based on the performance or failure to perform a discretionary function. JPS later moved for summary judgment, and its motion was denied. A bench trial was held on August 22, 2016.

¶ 8. On October 10, 2016, the circuit court entered its final judgment in favor of JPS. The court found JPS owed A.C. a general ministerial duty but did not owe A.C. a specific ministerial duty to escort her at all times. The court further found that A.C.'s IEP did not impose upon JPS a duty to provide A.C. with an escort because the IEP contained no language requiring A.C. to be escorted. A.C.'s mother testified that she did not request an escort provision in the IEP because Callaway's former principal-whose name A.C.'s mother did not know-had orally promised her that A.C. would be escorted. The court found no duty was created by the alleged oral promise. The promise was allegedly made prior to the IEP, and the court found that to the extent the IEP was a contract, as the plaintiffs argued, prior oral promises were void unless included.

¶ 9. Because there was no specific duty to escort A.C. in the IEP or elsewhere, the court found that JPS's duty was the general ministerial duty imposed on all schools to supervise children properly. See Miss. Code Ann. § 37-9-69 (Rev. 2013). The court, as the fact finder, found that reasonable efforts had been made to supervise the students properly and keep them safe because the assistant teacher monitored the students in the hallway and reasonably believed T.H. had entered his ROTC class prior to allowing A.C. to enter the hallway. The court further found no causal relationship existed between JPS's alleged failure to supervise A.C. or T.H. and A.C.'s injuries. The plaintiffs timely appealed the trial court's ruling.

STANDARD OF REVIEW

¶ 10. "The circuit court has the sole authority for determining the credibility of witnesses when it sits as the trier of fact." Miss. Dep't of Pub. Safety v. Durn , 861 So.2d 990, 994 (¶ 7) (Miss. 2003). "A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor[,] and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence." Hinds Cty. v. Burton , 187 So.3d 1016, 1020 (¶ 11) (Miss. 2016). "A trial judge's findings of fact must be manifestly wrong and against the overwhelming weight of the evidence for an appellate court to disturb them." Id. at (¶ 13). Questions of law, including proper application of the MTCA, are reviewed de novo. Id. at (¶ 11).

ANALYSIS

I. Whether JPS breached its ministerial duty to A.C.

¶ 11. The plaintiffs argue that JPS failed in its ministerial duty to provide a safe environment and that A.C. was directly harmed as a result.

¶ 12. "The MTCA provides the exclusive civil remedy against a governmental entity for acts or omissions which give rise to a suit." Smith ex rel. Smith v. Leake Cty. Sch. Dist. , 195 So.3d 771, 774-75 (¶ 9) (Miss. 2016). "Any tort claim filed against a governmental entity or its employee shall be brought only under the MTCA," and "a school district is a governmental entity under the MTCA." Id. "Under the MTCA, sovereign immunity is waived for claims for money damages arising out of the torts of governmental entities and their employees, unless they are explicitly exempted from this waiver under Section 11-46-9(1) of the Mississippi Code." Smith , 195 So.3d at 774-75 (¶ 9). Mississippi Code Annotated section 11-46-9(1) (Rev. 2012) exempts discretionary but not ministerial duties from immunity. Smith , 195 So.3d at 774-75 (¶ 9).

¶ 13. A ministerial duty is a duty that is "positively designated ... by statute, ordinance, or regulation." Id. at 776 (¶ 17). Section 37-9-69 states that "each superintendent, principal and teacher in the public schools of this state ... shall hold the pupils to strict account for disorderly conduct at school, on the way to and from school, on the playgrounds, and during recess." The Mississippi Supreme Court has found that " Section 37-9-69 of the Mississippi Code imposes upon school districts a ministerial duty to 'use ordinary care and to take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment.' " Smith , 195 So.3d at 776 (¶ 14) (quoting Moss Point Sch. Dist. v. Stennis , 132 So.3d 1047, 1050 (¶ 13) (Miss. 2014) ). "The school is not an insurer of the safety of pupils, but has the duty of exercising ordinary care, of reasonable prudence, or of acting as a reasonable person would act under similar circumstances." Summers ex rel. Dawson v. St. Andrew's Episcopal Sch. Inc. , 759 So.2d 1203, 1213 (¶ 40) (Miss. 2000).

¶ 14. Although the trial court found JPS was under the general ministerial duty imposed on all schools by section 37-9-69 to supervise its students properly, the trial court found that no breach of this duty was shown. The trial court found that JPS took reasonable steps to minimize foreseeable risks and provide a safe environment by reasonably ensuring that T.H. was not left alone with other students. The assistant teacher testified that she was aware of T.H.'s behavioral issues, including that he had in the past touched girls in their private areas when he thought the teacher was not looking. For this reason, T.H. was dismissed from the classroom several minutes before the other students, and the assistant teacher would watch him exit homeroom and walk to his next class.

¶ 15. The assistant teacher testified that on the day in question, she watched him walk to his ROTC class and believed he had entered the classroom, although she could not be sure because the classroom doorways are in inlets, and she could not see the door. She saw him enter the inlet. After she believed he was in the classroom, the assistant teacher dismissed A.C. and the other students to the right to go as a group to art class on the second floor. She testified that she watched them walk to the elevator and get on it, but she did not follow them. The trial court found this procedure sufficient to satisfy the general ministerial duty to minimize foreseeable risks and provide a safe environment. The trial court further found that the general ministerial duty did not include a duty to escort special-needs students to and from class or the bathroom.

¶ 16. The plaintiffs argue that A.C.'s IEP created a ministerial duty for A.C. to be escorted at school. Because A.C. was a special-education student, she was under an annually renewed IEP that was developed by JPS and A.C.'s mother. The IEP specified the education plan and care A.C. was to receive at school. A.C.'s mother signed the IEP annually. The plaintiffs argue that the IEP was a contract, and JPS's failure to provide an escort was a breach of the contract. However, the IEP undisputedly contained no provision requiring A.C. to be escorted. The trial court noted that by law, a student's parent and the school must meet to form the IEP, and the parent must sign and agree to the IEP. See 20 U.S.C. § 1414(d) (2002) ; Miss. Code Ann. § 37-23-137 (Rev. 2013). The parent may appeal if unhappy with the IEP. 20 U.S.C. § 1415(f) (2002). A.C.'s mother had signed the IEP each year, saying she had reviewed it. A.C.'s IEP contained other written provisions A.C.'s mother was concerned about, but contained no provision about an escort. No appeal was taken of the IEP. Thus, we find no error in the trial court's finding that the IEP did not create a ministerial duty to escort A.C.

¶ 17. Next, the plaintiffs argue the Code of Ethics applicable to all licensed educators imposed on JPS a duty to protect A.C. from T.H. The Code of Ethics states that it is unethical for a licensed educator to fail to "provide appropriate supervision of students and reasonable disciplinary actions." Miss. Educator Code of Ethics & Standards of Conduct 1.2(e). It further provides that it is unethical for a licensed educator to "commit[ ] any act of ... child endangerment." Id. at 4.2(b). The Code of Ethics is not mentioned in the trial court's final judgment. It was introduced into evidence during Principal William Trammell's testimony. We find that the Code of Ethics mirrors the duties set out in section 37-9-69. Again, as interpreted by our supreme court, section 37-9-69 requires a public school to "use ordinary care and to take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment." Smith , 195 So.3d at 776 (¶ 14). There is no evidence that the Code of Ethic's requirement of "appropriate supervision" meant that A.C. must be constantly escorted at school; nor is there support for the argument that a licensed educator at Callaway committed an act of child endangerment. We find that the trial court appropriately considered the standard set by the supreme court and that the Code of Ethics did not create additional ministerial duties not addressed by the trial court.

¶ 18. Finally, the plaintiffs cite A.C.'s lack of intellectual ability and T.H.'s history of behavioral issues and argue that JPS per se breached its ministerial duty because A.C. ended up alone and in a sexual encounter with T.H. No law supports the argument that the fact that a sexual encounter occurred on school property is a per se breach of duty. This issue is without merit.

II. Whether JPS took reasonable steps to minimize foreseeable risks.

¶ 19. The plaintiffs argue that JPS failed to take steps to minimize the foreseeable risk that T.H. would harm A.C.

¶ 20. The plaintiffs cite to testimony from A.C.'s art teacher that A.C. was "always" escorted to class, and when she did not arrive at art class on the day in question, the art teacher asked a student escort where A.C. was. They also cite testimony that according to A.C.'s IEP, she could only follow one-step directions and should not have been expected to find her way to her next class unescorted. They further point to the special-education assistant teacher's testimony that T.H. was never to be left alone with other students and that T.H. had a history of touching "girls in their private areas" when he thought no one was looking.

¶ 21. We cannot find the trial court erred in finding the school took reasonable steps to minimize any foreseeable risks. The only evidence that T.H. had a violent past was in his IEP, which said that T.H. stabbed another student with a pencil nine years earlier. There is no other history of violence. The record does show that T.H. had made obscene gestures with his tongue and would touch girls inappropriately if he thought the teacher was not looking. But the trial court found that JPS used ordinary care to minimize any foreseeable risk of T.H. being alone with other students by dismissing T.H. from class before the other students and watching the students walk to class to ensure T.H. was not with the other students. There was nothing in the record to indicate that T.H. had ever attempted to leave his class to harm another student.

¶ 22. As stated, the trial judge, sitting as the fact finder, was charged with weighing the testimony and judging the credibility of the witnesses. We cannot find the trial court manifestly erred in finding that JPS did what was required to minimize foreseeable risks. Further, there is no evidence that T.H.'s leaving class or his and A.C.'s entering a bathroom and engaging in a sexual encounter was foreseeable. This issue is without merit.

III. Whether JPS failed to hold T.H. to "strict account."

¶ 23. Section 37-9-69 states that "superintendents, principals and teachers shall hold the pupils to strict account for disorderly conduct at school, on the way to and from school, on the playgrounds, and during recess." (Emphasis added). The plaintiffs argue that JPS knew T.H. had a history of violence and failed to hold him to "strict account." It is undisputed that JPS was under a statutory, ministerial duty to hold its students "to strict account for disorderly conduct" while the students were in JPS's care. See id. Again, our supreme court has held this to mean that schools must "use ordinary care and ... take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment." Smith , 195 So.3d at 776 (¶ 14).

¶ 24. The plaintiffs argue that T.H. was not held to strict account because he was allowed to "roam the hallways." However, T.H. was not given permission to roam the hallways. Rather, the teacher and assistant teacher made reasonable efforts to ensure T.H. went to his next class and to keep T.H. separate from other students due to his behavioral issues. On the day in question, the assistant teacher watched T.H. walk to his ROTC class, and the trial court found that the assistant teacher's belief that T.H. had entered the classroom was reasonable. A security guard saw T.H. on the second floor when T.H. was supposed to be in class on the first floor. However, the security guard testified that he did not know the students' class schedules, so he had no cause for concern. Further, as shown by the school's surveillance video, T.H. and A.C. were not alone together when seen by the security officer. Rather, A.C. was walking in front of T.H. and a third student was walking near them. T.H. and A.C. were not interacting with one another when seen by the security officer.

¶ 25. There is no evidence JPS failed to hold T.H. to strict account. JPS was required to "use ordinary care and to take reasonable steps to minimize foreseeable risks to students." Id. As the trial judge found in his role as the fact finder, T.H.'s behavioral issues were acknowledged, and JPS took reasonable steps to keep him separate from other students to minimize foreseeable risks. The trial judge's findings are supported by substantial, credible, and reasonable evidence. This issue is without merit.

IV. Whether the school's alleged oral promise that A.C. would be escorted at school created a ministerial duty to provide an escort.

¶ 26. The plaintiffs argue that in 2012, prior to A.C. starting school at Callaway, Callaway's principal promised them a person had been hired to escort special-needs students. The plaintiffs argue this promise was an oral contract that created a ministerial duty to escort A.C. A.C.'s mother testified: "I talked to the principal.... [W]hen I called the school and asked them, they said that the special needs kids are escorted by an adult." She stated that she also met with a man in person who she believed to be the principal, and he made the same assurance. A.C.'s mother did not know the name of the person she spoke with on the phone or met in person. A.C.'s grandmother also testified that she called the school and spoke with a man who identified himself as the principal. She testified that she volunteered to escort A.C. at school, but was told that an adult had been hired to escort special-needs students. She likewise did not know the name of the person who told her this information. The former principal was not called as a witnesses at trial. Trammell became principal at Callaway in 2013.

¶ 27. Even assuming this oral promise was made, the IEP, to the extent it is a contract as argued by the plaintiffs, voided the prior oral promise. See Hayne v. The Doctors Co. , 145 So.3d 1175, 1183 (¶ 20) (Miss. 2014) ("A written contract cannot be varied by prior oral agreements. Moreover, as an evidentiary matter, parol evidence to vary the terms of a written contract is inadmissible."). Extrinsic evidence may be considered if a provision in a contract is ambiguous. Linde Health Care Staffing Inc. v. Claiborne Cty. Hosp. , 198 So.3d 318, 325 (¶ 28) (Miss. 2016). However, there was no allegation that the IEP

was ambiguous. Rather, the plaintiffs sought to add a term to the IEP that did not exist.

¶ 28. Notwithstanding, A.C.'s mother's and grandmother's testimony that an escort would be provided was contradicted by Callaway's principal at the time of the incident, as well as A.C.'s teacher and assistant teacher. Trammell, Callaway's principal at the time of the incident, testified that there was no general requirement that special-needs students receive escorts; rather, this responsibility would have to be contained in the student's IEP. The special-education teacher and assistant teacher both testified that special-education students were escorted to their classrooms at the beginning of the school year to ensure they knew where to go, and then for a short period after that, they would be "shadowed" to make sure they could find their way. After the initial orientation period, the students were sent to their next class as a group. This procedure was again followed after long school breaks, such as Christmas break, to ensure the students remembered their routes.

¶ 29. Since a written contract cannot be varied by a prior oral agreement, the alleged oral promise that A.C. would be provided with an escort is of no effect. Further, even if the oral promise were not void, it was the trial judge's role as the fact finder to weigh the testimony and witness credibility. The testimony regarding JPS's policy to provide escorts to special-needs students was conflicting. The judge weighed the evidence in favor of JPS. We cannot find manifest error in the judge's findings.

¶ 30. As stated, the trial judge in a bench trial has the "sole authority" for weighing the testimony and determining witness credibility. Durn , 861 So.2d at 994 (¶ 7). We give deference to his findings and will not reverse when those findings are supported by substantial, credible, and reasonable evidence. Burton , 187 So.3d at 1020 (¶ 11). The trial judge's findings will only be reversed if manifestly wrong and against the overwhelming weight of the evidence. Id. at (¶ 13). The trial judge weighed the evidence in his role as the fact finder, and we cannot say that his findings are manifestly wrong or unsupported by the record. Therefore, we affirm the trial court's ruling in favor of JPS.

¶ 31. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE AND TINDELL, JJ., CONCUR. WESTBROOKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

WESTBROOKS, J., DISSENTING:

¶ 32. I respectfully dissent from the majority. On the day of the incident, A.C. and T.H. were in the same homeroom class. T.H. was prompted to leave class before the other students as the school was aware of his violent and disruptive behavior and did not want him alone with any other students. The teacher's assistant testified that she watched him walk down the hall toward his ROTC class, but she could not see if he went into the classroom because of a wall pillar blocking her view. Moments later, the remaining students, including A.C., were released to go to art class. The teacher's assistant testified that she watched them get on the elevator to go to the second floor to their class.

¶ 33. T.H. and A.C. were seen in the hall by the security officer who testified to seeing them near each other, unsupervised, and he did nothing. Immediately after, the two students went into the restroom and had sexual intercourse. The parents and grandparents of A.C. brought a claim against Jackson Public School District (JPS), alleging that A.C. was sexually assaulted by T.H. as a direct result of JPS's failure to provide proper care and supervision of the students. The trial court weighed the evidence and found that JPS did not breach its ministerial duty to supervise, and that if they did, there was no evidence that directly linked their breach and the sexual encounter together. The majority agrees; however, I do not share the same sentiment.

¶ 34. The majority states that there is no provision or duty imposed on the school that requires the teachers to escort each student to and from class. The governmental function of the school is ministerial, and section 37-9-69 of the Mississippi Code imposes a duty on all schools to supervise its students properly. See Smith v. Leake Cty. Sch. Dist. , 195 So.3d 771, 781 (¶ 36) (Miss. 2016). The majority is correct, however, that the school does have a duty to use ordinary care in controlling and disciplining students while also providing a safe environment. In this present case, there were three instances where the students were unsupervised: when T.H. was released to go to his ROTC class, when the students were put on the elevator, and when T.H. and A.C. were alone in the hallway together.

¶ 35. "There is no liability predicated on lack of supervision where the event in connection with the injury occurred is not reasonably foreseeable." Henderson ex rel. Henderson v. Simpson Cty. Pub. Sch. Dist. , 847 So.2d 856, 857 (¶ 3) (Miss. 2003). Henderson, a junior-high student, was taunted and injured by another student named Price, in the presence of their teacher. Henderson , 847 So.2d at 857 (¶ 2). As a result, Henderson's guardians brought a negligence action against the Simpson County Public School District. Id. The trial court granted summary judgment in favor of the school because there was "no issue of material fact surrounding foreseeability" and there was no evidence that the school district had any knowledge that Price had violent tendencies or that he had behavioral issues in the past. See id. at 857 (¶ 4). Henderson appealed and the Supreme Court found that "several material facts existed and that summary judgement was improper." Id. at (¶ 5). The Court found that "there [wa]s still an issue of fact as to whether the teacher had adequate time and, indeed, a duty, to intervene in the situation while Price was standing over Henderson brandishing his fist for at least one minute." Id. at 858 (¶ 5). The teacher's inaction to supervise her class beared on the question of ordinary care as in this present case. Id. at 858 (¶ 6).

¶ 36. T.H. had a history of causing harm to other students and displaying obscene sexual gestures; he should have been escorted to class, not A.C. Furthermore, T.H.'s behavioral history put the school on notice, which explains why he was not allowed to be released with the other students in the class. Jackson Public School (JPS) was aware of the possibility of an incident and could have reasonably foreseen T.H. causing injury to another student. Likewise, the principal testified that the security officer's duties include patrolling the hallway and reporting anything suspicions to the administrators or his supervisor. The security officer failed to act within the scope of his duties when he did not report seeing T.H. and A.C. in the hallway. In addition, JPS did not inform the security officer that he should monitor T.H. and, like Henderson , JPS's inaction to supervise the students bears on the question of ordinary care.

¶ 37. "[T]he school is not an insurer of the safety of pupils, but has the duty as variously described, of exercising ordinary care, of reasonable prudence, or of acting as a reasonable person would act under similar circumstances." Levandoski v. Jackson Cty. Sch. Dist. , 328 So.2d 339, 342 (Miss. 1976). When the security officer saw T.H. and A.C. alone in the hallway, unsupervised, he failed to act as a reasonable person would when he failed to alert a teacher or staff member. Moreover, JPS failed to inform the security officer of whom to monitor closely, failed to use ordinary care in controlling T.H, and failed to provide a safe environment for A.C. For the aforementioned reasons, I find that the circuit judge's findings were manifestly wrong. See Pearl River County v. Bethea , 196 So.3d 1012, 1014-15 (¶ 10) (Miss. Ct. App. 2015) (providing standard of review).

      Initials are substituted to protect the privacy of the parties involved.

      The complaint also named as defendants the JPS Board of Trustees, Callaway High School, the Mississippi Department of Education, and Callaway's principal and several teachers, individually and in their capacities as JPS employees. Prior to trial, the trial court granted summary judgment in favor of the Mississippi Department of Education, and the individually named defendants were granted qualified immunity. Thus, we only address the issues raised against JPS, as it is the sole appellee in this appeal.

      While not at issue here, we recognize that the Mississippi Supreme Court recently overruled Brantley v. City of Horn Lake , 152 So.3d 1106 (Miss. 2014). Wilcher v. Lincoln Cty. Bd. of Supervisors , 243 So.3d 177, 182 (¶ 13) (Miss. 2018). In Brantley , the supreme court abandoned the two-part, public-policy function test for determining whether a governmental action was ministerial or discretionary in nature. Id. The decision in Wilcher overruled Brantley and its line of cases, and it reinstated the two-part, public-policy function test. Id. at 185 (¶ 23).


source: Caselaw Access Project

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

license: Public Domain

text:
    Samuel Terrail YOUNG Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00832-COA
    Court of Appeals of Mississippi.
    September 4, 2018 Rehearing Denied November 13, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN, SAMUEL TERRAIL YOUNG JR. (PRO SE)
    ATTORNEY FOR APPELLEE: BILLY L. GORE, JACKSON
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. Samuel Terrail Young Jr. was indicted by a Madison County grand jury of one count of sexual battery and one count of burglary. Following a jury trial in the Madison County Circuit Court, the jury found Young guilty of the sexual-battery charge and not guilty of the burglary charge. He was sentenced as a violent habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015) to life imprisonment without eligibility for parole in the custody of the Mississippi Department of Corrections. Through his appointed appellate counsel, Young appeals his conviction, arguing (1) he received ineffective assistance of counsel, and (2) the trial court erred in denying his motion for mistrial. Young also filed a pro se brief asserting numerous additional issues that we also address. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 28, 2015, Michelle Brickner was doing laundry at her apartment in Ridgeland, Mississippi, when she was attacked and raped. She testified that she had been in the living room and laundry room. She then walked into her bathroom and saw a man standing in her bedroom. Brickner stated she noticed the window and blinds were pulled up, which she had not done. When she saw the man, she screamed and tried to run, but he tackled her to the ground. Brickner stated the man covered her mouth and told her not to scream or he would kill her.

¶ 3. Brickner testified that the man proceeded to question her regarding her age, ethnicity, marital status, and how long she had lived in the apartment. She stated that at no point did she get a good look at his face because he would not allow her to and continued to threaten to kill her if she looked at him. The man took off his pants and told Brickner to perform oral sex on him. A few minutes later, he told her to remove her clothes, and he raped her. Brickner stated that the rape began in the bedroom, and at some point, the man moved her into the living room. He penetrated her vaginally and then attempted to penetrate her anally. Brickner stated that she screamed, and the man again threatened to kill her. He penetrated her again vaginally until he eventually ejaculated. Following the rape, the man forced Brickner to bathe several times. She testified that he used her facial cleanser and used his hands and fingers to try and clean inside of her vagina. He also refilled and emptied the tub several times. Before he left her apartment, the man told Brickner if she called the police he would kill her.

¶ 4. Brickner stated she got out of the tub about ten minutes after the man left and called her boyfriend, who convinced her to call the police. When the police arrived, she described what had happened in the apartment. She stated the only description she was able to give the police was that the attacker was a taller black male. After talking with the police, Brickner went to Baptist Hospital in Jackson, Mississippi, where she had a sexual-assault kit performed by Dr. Ronnie Ali. Dr. Ali, an expert in emergency medicine, testified at trial that he observed bruising on Brickner's arm, legs, and buttocks, which was included in his report. The report also noted blood on Brickner's underwear. Dr. Ali also reported swelling of the rectum, indicating penetration, as well as swelling and bruising of the vagina. During the exam, Dr. Ali noted a significant amount of semen inside the vagina. Dr. Ali opined that the combination of the swelling of the vagina and amount of semen indicated that the sexual encounter was "fresh" or "acute."

¶ 5. Investigator Leslie Owens with the Ridgeland Police Department was called to Brickner's apartment. She developed Young as a suspect after DNA testing from the semen recovered from Brickner's sexual-assault exam matched Young's DNA profile stored in a database of convicted felons. Investigator Owens also determined that Young lived in an apartment complex near Brickner's apartment and testified it would take approximately one minute on foot to travel between the two apartments.

¶ 6. Joseph Heflin, a DNA analyst with the Mississippi Forensics Laboratory, testified that he was able to develop a DNA profile from the vaginal swabs taken from Brickner's sexual-assault kit. The profile was run against DNA in a database and returned a match to Young's DNA. Heflin testified that the likelihood the DNA would match another unrelated person's DNA profile was greater than one in ten billion.

¶ 7. Pierre Pryor Jr., a friend of Young's, testified that he was with Young on June 26, 2015, at Young's apartment. He stated the two were just talking. According to Pryor, Young asked where all the women were, and Pryor told Young to check "backpage.com." Pryor stated that Young used a computer to go to the website and then asked Pryor to leave for a little while because a girl from the website was coming by. Pryor waited outside in his car, and he testified that he saw a Chinese woman in her late twenties knock on Young's door. (Brickner was of Asian descent.) He stated the woman stayed in the apartment around thirty minutes before she left, seemingly upset because she slammed the door. Pryor stated he could not remember where Young's apartment was, whether or not it was on the first floor or upstairs, and was playing games on his phone when he saw the woman. Brickner denied ever using "backpage.com" and stated she had never heard of it prior to the investigation. She also denied using any other dating or meeting app to meet Young, and that she had never met him before, and that the sexual encounter was not consensual.

¶ 8. Young's cousin, Jasmine Haden, testified that Young was with her in Memphis, Tennessee, where she was living on the weekend Brickner was raped. Haden testified that Young was at her house in Memphis around 9:00 p.m. on June 28, 2015, and they had a cookout with several others that Sunday evening. Young introduced evidence of two Facebook posts Haden made. The first was posted on June 27, 2015, stating, "yay, my cousin here. Me so happy[,]" and Haden had tagged Young in the post. The second was posted on June 29, 2015, stating, "I miss you already, cuz." There were no posts made on June 28, 2015, the date of the sexual assault.

¶ 9. Richard Meeks testified that he saw Young in Memphis, and the two had drinks at a club on Beale Street the evening of Saturday, June 27, 2015. Meeks testified that afterwards, they went back to his house and played dominoes. He also testified that the next day, Sunday, June 28, 2015, they were at a fish fry at Haden's house. Meeks testified that Young was still at Haden's home in Memphis when he left around 8:30 or 9:00 p.m.

¶ 10. The jury found Young guilty of sexual battery. He now appeals his conviction, arguing (1) he received ineffective assistance of counsel, and (2) the trial court erred by denying his motion for mistrial.

DISCUSSION

I. Ineffective-Assistance Claim

¶ 11. In his first issue on appeal, Young argues that he received ineffective assistance of counsel because his counsel did not file a motion to introduce evidence of Brickner's sexual history. Young's appellate counsel acknowledges that under Mississippi Rule of Evidence 412, evidence of sexual behavior or reputation of a sexual-assault victim is generally not admissible. Young argues, however, that he meets an exception under Rule 412(b)(1)(A)-(B) to prove that someone other than the defendant was the source of semen or that the encounter was consensual. Young argues he was unable to present evidence supporting his theory of defense because his counsel failed to follow the procedures required under Rule 412 by not filing a written motion describing the evidence at least fifteen days before trial. M.R.E. 412(c)(1)(A)-(B).

¶ 12. 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) ). Young asks this Court on direct appeal to consider the merits of his ineffective-assistance claim, and the State stipulates that the record is adequate for this Court to make such a finding. As such, we will consider the merits of his claim.

¶ 13. 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) ).

¶ 14. The record demonstrates that Young's counsel failed to comply with the procedures under Rule 412 because she was unaware of the requirements. The State filed a motion in limine on September 7, 2016, to exclude any evidence of Brickner's past sexual behavior. At a motions hearing on November 21, 2016, the trial court addressed the State's motion to exclude and asked Young's counsel if she intended to introduce evidence of Brickner's past sexual behavior. Young's counsel indicated that she intended to do so, but when questioned by the trial court about whether she had filed the proper motions, she stated she had not and that she was unaware of the fifteen-day notice requirement. The trial court indicated that the evidence would likely be inadmissible under the rule but gave Young's counsel the opportunity to provide something showing why an exception should apply. The next day, on November 22, 2016, Young's counsel filed a motion to offer evidence of the victim's past sexual behavior. The motion was denied during a pretrial hearing the morning of trial prior to voir dire.

¶ 15. Because the record clearly demonstrates Young's counsel's failure to timely file the notice and motion to introduce evidence of Brickner's past sexual behavior was due to oversight and unawareness by her own admission, we cannot presume the decision was strategic. However, our inquiry does not end there. Again, to demonstrate a claim of ineffective assistance of counsel, Young must show that his counsel's performance was deficient, and that this deficiency prejudiced his defense-that is, a reasonable probability that, but for the deficiency, the result of the proceeding would have been different. Renfrow , 202 So.3d at 636 (¶ 7).

¶ 16. We find that Young has failed to prove that but-for his counsel's failure to timely file the fifteen-day notice and motion, the result would have been different. We note that the admission or exclusion of evidence is within the sound discretion of the trial court. Bell v. Stevenson , 158 So.3d 1229, 1237 (¶ 24) (Miss. Ct. App. 2015). Given that the admission of evidence is a matter of discretion, there is no indication in the record that had the motion been timely filed, it would have been granted. Further, the trial court allowed Young's counsel to make a showing as to why the evidence should be admitted notwithstanding her failure to comply with the Rule's notice requirement. Rule 412 states that once the motion is timely made and notice procedures are complied with, a hearing must be held to determine the admissibility of the evidence, as well as to determine whether the probative value of relevant evidence outweighs the danger of unfair prejudice. M.R.E. 412(c)(2). The record does not indicate that even if Young's counsel timely filed the motion that the trial court would have found the offer of proof sufficient for a hearing; conducted a hearing; determined the evidence to be admissible; determined the evidence to be more probative than prejudicial; or admitted the evidence. As such, Young has failed to demonstrate "that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Renfrow , 202 So.3d at 636 (¶ 7). This issue is without merit.

II. Motion for Mistrial

¶ 17. Young also argues that the trial court erred by failing to grant his motion for mistrial after certain remarks were made by the prosecutor during closing arguments. Young refers to the following statement made by the State at the beginning of its closing statement: "In June of 2002, I went on my senior trip to Mexico and I was kidnapped and held at gunpoint by three men -." The prosecutor's statement was cut off by Young's counsel's objection. Young argues that these comments by the prosecutor improperly bolstered Brickner's testimony by "essentially [telling] the jury that because the same thing had happened to the prosecutor, they could believe Brickner's testimony and overlook the fact that she was not able to give a physical description of the man who raped her."

¶ 18. Young's counsel immediately objected to the statement and moved for mistrial. The trial court held an on-the-record bench conference where the prosecutor explained that she was going to finish her statement by saying that when she went to the police station, she could not give any facial identity of the men, and that "just because you're a victim of a crime does not mean that you can give a perfect identification of your attacker." The trial court overruled the motion for mistrial but instructed the jury that certain things were not in evidence and should not be relied on as in evidence. The trial court then admonished the prosecutor to get to her point about identification. The prosecutor continued, "What I'm trying to say is, sometimes it's hard to identify people when you're in a stressful situation. It was hard for me and sometimes it can be hard for people when they're asked to give a perfect identification of a person who is attacking them."

¶ 19. "The decision to grant or not grant a mistrial lies within the sound discretion of the trial court and is reviewed for abuse of discretion." Straight v. State , 205 So.3d 1089, 1092 (¶ 10) (Miss. Ct. App. 2016). "If error 'substantially and irreparably' prejudices the defendant's case, then the trial court must grant a mistrial." Id. "Any allegedly improper prosecutorial comments must be considered in context, considering the circumstances of the case, when deciding on their propriety." Batiste v. State , 121 So.3d 808, 834 (¶ 39) (Miss. 2013). "Even if the comment was improper, it would not constitute grounds for reversal unless the natural and probable effect of the prosecuting attorney's improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice." Id. (internal quotation mark omitted). The Mississippi Supreme Court "has held that a trial judge is best suited to determine the prejudicial effect of an objectionable remark and is given considerable discretion in deciding whether the remark is so prejudicial as to merit a mistrial." Ford v. State , 206 So.3d 486, 491 (¶ 14) (Miss. 2016). "Unless 'serious and irreparable damage' results from an improper comment, the judge should 'admonish the jury then and there to disregard the improper comment.' " Id.

¶ 20. We do not find that the trial court abused its discretion in denying Young's motion for mistrial based on the prosecutor's remarks. The prosecutor's remarks did not substantially and irreparably prejudice Young's case. The remarks were immediately objected to and the trial judge immediately heard argument on the objection at a bench conference. Then, the trial judge immediately instructed the jury that it should not rely on things not in evidence, and advised the prosecutor that she should get to the point about identification and nothing else, which she did. This issue is without merit.

III. Young's Supplemental Brief

¶ 21. In addition to the issues presented on appeal by Young's appellate counsel, Young filed a supplemental brief arguing several additional issues which we address in turn.

A. Batson Challenge

¶ 22. Young asserts that the trial court erred when it allowed the prosecutor to exclude jurors who did not have a college degree. Young asserts the strikes violated Batson , "directly limit[ing] the number of African American jurors able to serve on his jury" for the "sole purpose of discriminating against jurors on the basis race."

¶ 23. "The trial judge acts as finder of fact when a Batson issue arises." Allen v. State , 235 So.3d 168, 171 (¶ 7) (Miss. Ct. App. 2017). "We will not overrule a trial court on a Batson ruling unless the record indicates that the ruling was clearly erroneous or against the overwhelming weight of the evidence." Id.

¶ 24. The use of "peremptory strikes is 'subject to the commands of the Equal Protection Clause' ..., [which] prohibits using peremptory strikes to engage in racial discrimination." H.A.S. Elec. Contractors Inc. v. Hemphill Const. Co. , 232 So.3d 117, 122-23 (¶ 13) (Miss. 2016) (quoting Batson v. Kentucky , 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ). "To safeguard against racial discrimination in jury selection, the United States Supreme Court in Batson established a three-step process." Id. at 123 (¶ 14).

First, the party objecting to the use of a peremptory strike has the burden to make a prima facie case that race was the criterion for the strike. Second, if the objecting party makes such a showing, the burden shifts to the striking party to state a race-neutral reason for the strike. Third, after the striking party offers its race-neutral explanation, the court must determine if the objecting party met its burden to prove purposeful discrimination in the exercise of the peremptory strike-that the stated reason for the strike was merely a pretext for discrimination.

Id.

¶ 25. The record demonstrates that Young's trial counsel moved for a Batson challenge and alleged that the prosecutor used her strikes to exclude a disproportionate number of black jurors. During the Batson hearing, Young's counsel argued that the prosecutor struck six black jurors and only struck two white jurors. The trial court found that Young's counsel made a prima facie showing that the strikes were utilized by the State in a racially discriminative manner. Accordingly, the trial court required the State to state a race-neutral reason for the strikes. The State explained that it struck any jurors that did not possess greater than a high school education arguing that because the case involved significant DNA evidence, that a higher level of education would be beneficial to any juror. The trial court found that the education-level explanation was a valid, race-neutral reason. Young's counsel stated the reason was merely pretext for race but did not offer any further rebuttal. The trial court noted on the record that it had "looked at each of the [twelve] jurors that were tendered and each of [twelve], the whites and blacks, had at least a college degree." The trial court also noted that the education-level reason resulted in the striking of three whites and four blacks. The trial court found that the strikes were not a pretext for racial discrimination and allowed the strikes to stand.

¶ 26. In this case, the trial court properly followed the process set forth in Batson to determine whether the strikes were used with purposeful discriminatory intent. This Court has previously affirmed a trial court's decision that education level is a valid, race-neutral reason for a juror strike where the State indicated its desire for "as much education as possible." See Jackson v. State , 5 So.3d 1144, 1148 (¶ 14) (Miss. Ct. App. 2008). "Given the great deference that we afford the trial court's Batson determinations, we do not disturb the trial court's finding that there was no purposeful discrimination." Id.

B. Sufficiency of the Evidence

¶ 27. Young also states that the trial court erred when it allowed his guilty verdict on the sexual-battery charge to stand, arguing it was inconsistent with the jury's verdict of acquittal on the burglary charge. This issue was raised in a post-trial motion for a judgment notwithstanding the verdict (JNOV) as well as motion for a new trial. It now seems in Young's supplemental brief that he attempts to raise a sufficiency-of-the-evidence argument as to the sexual-battery conviction.

¶ 28. 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 (¶ 19) (Miss. Ct. App. 2017). "A motion for 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).

¶ 29. "When a defendant charged in a multi-count indictment is convicted on some counts while acquitted of others, the appellate inquiry is limited to a determination of whether the evidence is legally sufficient to support the counts on which a conviction is returned. What the jury did with the remaining counts is immaterial." Grant v. State , 198 So.3d 400, 406 (¶ 21) (Miss. Ct. App. 2016) (internal quotation mark omitted).

¶ 30. Here, the jury found Young guilty of sexual battery in violation of Mississippi Code Annotated section 97-3-95(1)(a) (Rev. 2014), which states "(1) A person is guilty of sexual battery if he or she engages in sexual penetration with: (a) Another person without his or her consent[.]"

¶ 31. With regard to the legal sufficiency of the evidence, Brickner testified that she did not consent to sexual contact with Young; the sexual-assault exam performed within hours after the encounter revealed bruising to Brickner's arms, legs, and buttocks, and bruising and swelling to her vagina and rectum, indicating penetration. The sexual-assault exam also revealed a large amount of semen, with the DNA analysis implicating Young, with a chance of one in ten billion that the DNA would match another unrelated person. As such, there is substantial evidence to support the verdict of guilty on the sexual-battery count. We affirm the trial court's decision to deny Young's post-trial motion for a JNOV. This issue is without merit.

C. Illegal Sentence

¶ 32. Young argues that his sentence of life imprisonment is cruel and unusual punishment because it exceeds a "life sentence" based on a calculation of his life expectancy, and is therefore, an illegal sentence. He also argues that the State did not give proper notice of its intent to charge Young as a habitual offender, and thus his habitual-offender status is improper.

¶ 33. "Under Uniform Rule of Circuit and County Court Practice 7.09, an indictment may be amended to charge the defendant as a habitual offender if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised." Lofton v. State , 248 So.3d 798, 812, 2018 WL 1957312, at *10 (¶ 54) (Miss. 2018). The record reflects that the State filed a motion to amend the indictment to charge Young as a habitual offender on June 17, 2016. The motion was argued on November 21, 2016, and the State specifically detailed two of Young's prior felony convictions that resulted in a sentence of one year or more. Finally, the hearing to determine Young's habitual-offender status was held on December 5, 2016-after his conviction. It cannot be said that Young was not given a fair opportunity to prepare and present a defense, or that he was unfairly surprised in regard to his habitual-offender status. This issue is without merit.

¶ 34. In regard to his cruel-and-unusual-punishment argument, Young was sentenced to life imprisonment as a violent habitual offender under section 99-19-83. During a pre-sentencing hearing, the State proved Young's habitual offender status. "[T]he Mississippi Supreme Court [has] stated, this is not the first time that Mississippi's habitual offender statute has been challenged as cruel and unusual punishment. [The supreme court] has consistently held that sentences under Mississippi Code Annotated section 99-19-83 do not constitute cruel and unusual punishment." Bonner v. State , 962 So.2d 606, 611 (¶ 19) (Miss. Ct. App. 2006) (quoting Huntley v. State , 524 So.2d 572 (Miss. 1988) ). This issue is without merit.

D. Prayer in Courtroom

¶ 35. Young argues that he is entitled to a mistrial based on the fact the trial judge opened courtroom with a prayer prior to jury venire. This was done prior to trial and Young's counsel moved to quash the jury panel based on the prayer. The trial judge denied Young's motion to quash. Young now appeals.

¶ 36. "A jury panel should not be quashed unless the defendant can show that the failure to comply with the statute amounts to actual fraud, prejudice, or such a flagrant violation of duty as to amount to fraud." Cooper v. State , 200 So.3d 1065, 1072 (¶ 25) (Miss. Ct. App. 2016). Here, Young does not show how the prayer violated the jury-selection statute ( Mississippi Code Annotated section 13-5-87 (Rev. 2012) ) or resulted in fraud or prejudice. This issue is without merit.

¶ 37. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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

      Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).


author: WILSON, J., FOR THE COURT:

text:
    Willie D. TRIPLETT, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00629-COA
    Court of Appeals of Mississippi.
    September 4, 2018 Rehearing Denied December 18, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, JACKSON
    BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Willie Triplett was convicted of burglary of a church following a jury trial in the Neshoba County Circuit Court. On appeal, Triplett argues that his confession should have been suppressed pursuant to the Fourth Amendment to the United States Constitution because he was arrested without "probable cause" and his subsequent confession was "obtained by exploitation of his illegal arrest." However, Triplett did not raise this issue at trial. Rather, the trial judge found that Triplett's confession was voluntary and admissible under the Fifth Amendment and Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Triplett did not raise a further objection based on an allegedly illegal arrest.

¶ 2. It is well established that "an objection on one or more specific grounds constitutes a waiver of all other grounds." Fleming v. State , 604 So.2d 280, 292 (Miss. 1992) ; see Evans v. State , 275 So.2d 83, 85 (Miss. 1973) (holding that defendant "effectively waived" any objection to his confession based on an allegedly illegal arrest because at trial he only argued that the confession was not voluntary). We conclude that Triplett waived any objection based on an allegedly illegal arrest because he did not raise that issue at trial.

¶ 3. Triplett also argues that the evidence was insufficient to convict him and that the verdict was against the overwhelming weight of the evidence. However, these arguments are based in part on Triplett's procedurally barred claim that his confession should have been suppressed as the product of an illegal arrest.

Taking Triplett's confession into account, there is sufficient evidence to sustain the conviction, and the verdict was not against the overwhelming weight of the evidence. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 4. On August 31, 2016, Investigator Ralph Sciple of the Neshoba County Sheriff's Department received a phone call from Gerald Beam, the owner of a local pawn shop. Beam told Sciple that a black man had just tried to pawn a Mantis tiller. Beam suspected that the tiller was stolen, although the record does not indicate why Beam was suspicious. Beam gave Sciple the tag number for the vehicle that the man was driving, a large white SUV. Sciple determined that the SUV, a 2006 Chevrolet Suburban, was registered to Darry and Elizabeth Williams.

¶ 5. The Williamses lived on the Choctaw Indian Reservation, so Sciple contacted Captain Robert York of the Choctaw Police Department. York said he knew the Williamses and also knew "that there was a black male [at their house] from time to time." York used the information that Sciple provided him to obtain a search warrant from the Choctaw Tribal Court. Sciple testified that the search warrant covered the Williamses' SUV and residence and any other buildings on their property. Sciple testified that he "was hoping to find some stolen property in the SUV."

¶ 6. Choctaw police executed the search warrant at the Williamses' home on September 1. Sciple was not present when the search began, but he arrived shortly thereafter. When Sciple arrived, York had handcuffed a black man (Triplett) and was talking to him "off to the side." Elizabeth Williams also was present.

¶ 7. No Mantis tiller was found during the search. However, as police searched the SUV, they found two Peavey speakers, a Peavey mixer, a wireless connector, a microphone, and a bag of cables. No one at the residence claimed ownership or knowledge of the sound equipment. Sciple testified that the "first thing [he] noticed" about the equipment was that it looked like it "didn't belong" in the SUV. Sciple thought that the equipment looked like it might be used in a church. There had not been any report of a church burglary at that point. Nonetheless, Sciple photographed and took custody of the equipment "in case something did come up regarding stolen items." Triplett was also taken into custody at that time.

¶ 8. Three days later, on Sunday, September 4, the pastor at the East Philadelphia Church of God, Reverend Charles Hardy, discovered that speakers and other sound equipment were missing from the church. He called the sheriff's department to report a possible burglary. Hardy testified that worship services are held at the church only the first and third Sundays of each month, but Sunday School is taught each Sunday. Hardy believed that the equipment was stolen during the previous week because no one reported that anything was missing when the church was open for Sunday School on August 28. However, Hardy could not say for certain when the equipment was taken. Hardy also testified that there was a broken window in the back of the church, which he thought was the burglar's point of entry.

Hardy thought that the burglar probably left the church through the back door, since he would have been carrying heavy sound equipment. Hardy said that several people had keys to the church, including himself, a custodian, his daughter, and possibly others. After reporting the crime, Hardy went to the sheriff's department and identified the sound equipment that was found in the Williamses' SUV as the church's sound equipment.

¶ 9. On September 7, Sciple interviewed Triplett about the church burglary. By this point, Triplett had been in custody for seven days. Sciple advised Triplett of his Miranda rights, and Triplett signed a waiver of rights form. Triplett signed a written statement that stated in full: "I Willie Triplett did break into chruch [sic] & took goods."

¶ 10. Triplett was indicted for burglary of a church, and his case proceeded to trial. During the trial, two suppression hearings were held outside the presence of the jury. During the first hearing, the State first called Darry Williams, who testified that his daughter, Amelia, does not live at his house permanently but "comes and goes," and Triplett had spent the night there with her. Williams also testified that on occasion Amelia and Triplett had taken the keys to his SUV and driven the SUV, but neither of them owned or had permission to use it. Next, Sciple testified about the tip he received from Beam and the search of the Williamses' SUV. Sciple also testified that Triplett did not have any ownership interest in the SUV or the Williamses' residence. Finally, Triplett testified that he stayed at the Williamses' house frequently between May and August, except for a period in July and August when he had been "locked up" in jail "for old fines." However, Triplett admitted that he did not own the Williamses' SUV.

¶ 11. At the conclusion of the testimony during the first suppression hearing, Triplett's trial counsel orally "move[d] ... to suppress inferences that ... the pictures of the [stolen sound equipment] be used against Mr. Triplett because they were seized from the house that he was living at whether or not he owned an ownership interest in that house." Triplett's counsel also asked "to suppress any evidence of a connection between Mr. Triplett and the [photographs of the stolen sound equipment]." After counsel made his oral motion, the following exchange occurred:

Trial judge: Suppress any inferences?
Defense counsel: Suppress any testimony that Mr. Triplett - after Mr. Triplett was arrested on this, ... the police took a statement from Mr. Triplett regarding these items that we believe the State would seek to introduce at a later date. If Mr. Triplett was not arrested in connection with these items initially, then he would not have been in custody to have given a statement.
Trial judge: Okay. I want to be sure I understand that at this juncture, the statement - we are not there.
Defense counsel: Right. We are not there yet.
Trial judge: We are not even talking about that yet. Right now you are asking that the suppression be for any inference related to Mr. Triplett and the items that have been introduced into evidence, pictures of them?
Defense counsel: Yes, sir, Your Honor.

¶ 12. In response to Triplett's motion, the State argued that Triplett did "not have any standing to object" to the search because he did not own the vehicle or the property on which it was parked. The State argued that a defendant does not have Fourth Amendment rights with respect to "the search of a third person's premises or property." The State also emphasized that the equipment was found in the vehicle and Triplett "was not even in the vehicle" when it was searched.

¶ 13. The trial judge then asked whether Triplett's counsel had any rebuttal. Triplett's counsel argued that Triplett had standing because he used the home "as a residence," even if he did not own it. Counsel argued, "I don't think the question is an ownership interest. I think the question is ... whether he used [the home] as a residence."

¶ 14. The trial judge then found that Amelia and Triplett had used the SUV only "without permission" and that Triplett was essentially a "sporadic guest" at the Williamses' home. The judge then denied the motion to suppress, ruling as follows:

I am not persuaded that [Triplett] has standing to challenge the search or search warrant .... I did not discern any evidence ... concerning any claim whatsoever by [Triplett] to the white Chevrolet Suburban.... I am not persuaded [that Triplett] had any property interest whatsoever in the residence .... I don't think he had any reasonable expectation of privacy at that residence, so your motion to suppress is overruled.

¶ 15. A second suppression hearing was held just before Sciple testified about Triplett's confession. Sciple testified that he interviewed Triplett on September 7. Triplett signed a Miranda waiver before the interview began. Triplett had been in jail for about seven days and did not appear to be under the influence of drugs or alcohol. Sciple testified that he did not threaten Triplett, promise him leniency, or suggest that things would be better for him if he gave a statement. According to Sciple, as he and Triplett talked about the church burglary, Triplett "starting talking about his girlfriend." Triplett eventually stated, "I'm just going to take all responsibility and I am going to make a statement." Triplett then wrote out and signed the confession that was admitted into evidence at trial.

¶ 16. On cross-examination, Triplett's trial counsel began by asking Sciple what "led [him] to believe that [Triplett] was not under the influence of any drugs when he confessed." Counsel next asked Sciple whether it was "possible" that Triplett "could have gotten drugs back in the jail." Trial counsel also asked Sciple whether Triplett appeared to be taking the blame for his girlfriend and whether Triplett ever sought to recant his confession. Sciple was confident that Triplett was not under the influence and that Triplett was involved in the burglary, although he conceded that Triplett's girlfriend may have been involved as well. Sciple testified that Triplett never approached him in an effort to recant, and he never heard that Triplett wanted to recant.

¶ 17. Triplett testified again during the second suppression hearing. Triplett claimed that he had gotten some marijuana in jail and was high when he confessed. He also claimed that he told Sciple that he would "take the blame" for the burglary even though he "didn't do it." Triplett acknowledged that he signed his written statement, but he claimed that Sciple wrote out the brief statement for him. Triplett testified that he later regretted his confession and made numerous requests to talk to Sciple, but Sciple "never would speak to [him]." On cross-examination, Triplett stated that, when he confessed, "all [he] was in jail for was petty larceny and false pretense."

¶ 18. After Sciple testified briefly in rebuttal, the trial judge asked whether Triplett's trial counsel wished to be heard in argument. Trial counsel stated that he would "just rest on [his] motion." The trial judge then denied Triplett's motion to suppress his confession. The judge's ruling from the bench included a detailed discussion of the testimony and the reasons for his ruling. Specifically, the trial judge found that Triplett knowingly, freely, and voluntarily waived his Miranda rights. The judge also found that Triplett's confession was voluntary and that he was not under the influence at the time. At the conclusion of his ruling, the judge asked, "Can y'all think of anything else we need to consider on the record before we get back in front of the jury in this case?" Triplett's trial counsel stated, "No, Your Honor, I don't believe there is."

¶ 19. After the second suppression hearing, Sciple completed his testimony before the jury, and the State rested its case. Triplett rested without testifying or calling any witnesses. The jury found Triplett guilty of burglarizing the church. The trial judge sentenced Triplett as a nonviolent habitual offender to fourteen years in the custody of the Department of Corrections.

¶ 20. Triplett filed a motion for a new trial in which he argued, inter alia, that the court erred by "admitting evidence, testimony and a statement from [Triplett] that was gained by an improper search warrant to the premises where [Triplett] was residing, while denying [Triplett the] right to question the search warrant." Triplett's motion for a new trial was denied, and he filed a timely notice of appeal. On appeal, as noted above, Triplett argues that his confession should have been suppressed because it was "obtained by exploitation of his illegal arrest." In response, the State argues that Triplett waived this issue because he did not raise it in the trial court. After examining the record, this Court ordered the State and Triplett's appellate counsel to confer with trial counsel to determine whether any written motion to suppress was filed or provided to the trial judge and whether there was any other ore tenus motion to suppress that is not reflected in the transcript. The State and Triplett's appellate counsel subsequently filed a joint response stating that they had conferred with trial counsel and that there was no written motion or any other oral motion.

ANALYSIS

I. Confession

¶ 21. On appeal, Triplett abandons the arguments that he made during the two suppression hearings in the trial court. He no longer challenges the search warrant, the search of the Williamses' SUV, or the voluntariness of his confession. Rather, Triplett argues that he was arrested without a warrant and without "probable cause," and he then argues that his "confession was an inadmissible fruit obtained by exploitation of his illegal arrest." The problem with Triplett's argument on appeal is that it he did not make it at trial.

¶ 22. As discussed above, there were two mid-trial suppression hearings. The only subject of the first hearing was the search of the Williamses' SUV. The only issue addressed or argued during that hearing was whether Triplett even had standing to object to the search of the vehicle. Near the end of that hearing, Triplett's trial counsel briefly mentioned Triplett's arrest and statement, but he did so in connection with the items seized from the SUV. And, more important, when the trial judge asked for clarification, Triplett's trial counsel clearly stated, "[w]e are not there yet." That is, counsel expressly recognized that the first suppression hearing only addressed the search of the SUV, not Triplett's confession.

¶ 23. Moreover, during the second suppression hearing, Triplett never raised any objection based on an allegedly illegal arrest. Indeed, the circumstances and basis for Triplett's arrest were not addressed at any point during the hearing. Rather, the second hearing focused entirely on the circumstances of Triplett's statement, which he gave a week after his arrest. Triplett claimed that he was high when he confessed, that he told Sciple that the confession was false, and that he later attempted to recant the confession. The point of Triplett's testimony was to suggest that his Miranda waiver and confession were not knowing and voluntary. However, the trial judge found otherwise and explained his reasoning in a detailed bench ruling addressing the waiver and the voluntariness of the confession. At the conclusion of the judge's ruling, the trial judge specifically asked whether there was "anything else" that he needed "to consider on the record" before the trial resumed. If Triplett wanted to object to the confession based on an allegedly illegal arrest, that would have been the time to do it. However, his attorney told the court that there were no other issues left to be addressed.

¶ 24. Finally, Triplett's post-trial motion for a new trial did not argue that his confession was the product of an illegal arrest. Rather, Triplett's new trial motion reasserted that the "search warrant" was improper and that the trial judge erred by finding that he lacked standing to challenge the warrant.

¶ 25. It is well established that "an objection on one or more specific grounds constitutes a waiver of all other grounds." Fleming , 604 So.2d at 292. "Constitutional arguments not asserted at trial are waived." Id. "This Court cannot find that a trial judge committed reversible error on a matter not brought before him or her to consider." Smith v. State , 986 So.2d 290, 295 (¶ 13) (Miss. 2008). Thus, in Evans v. State , 275 So.2d 83 (Miss. 1973), the Supreme Court held that the defendant "effectively waived" any claim that his arrest was illegal when, as in this case, his only argument at trial was that his confession was involuntary. Id. at 85.

¶ 26. The same is true here. At trial, Triplett clearly made a Fifth Amendment-based objection to his confession, arguing that the Miranda waiver and confession itself were not voluntary. However, he never alleged that his confession was the product of an illegal arrest. Indeed, the circumstances of his arrest were never discussed during the hearing on the motion to suppress his statement. Accordingly, we hold that Triplett is procedurally barred from raising that issue for the first time on appeal.

¶ 27. This case is a good illustration of why we do not address issues that were not raised at trial. Because Triplett did not make this argument at trial, there are several underlying or subsidiary factual and legal issues that the record simply does not address. Because there was no evidence or argument on these issues, the trial court likewise did not make any relevant findings or rulings, and this Court is in no position to do so on appeal.

¶ 28. To begin with, Triplett's argument on appeal simply assumes that he was arrested without a warrant. It is true that there is no mention in the record of an arrest warrant. However, because Triplett never challenged the arrest, there was never a need for the State to explain the basis for the arrest. Moreover, during the second suppression hearing, Triplett testified that when he confessed to Sciple he "was in jail for ... petty larceny and false pretense." Thus, it is possible that Triplett was arrested and in jail on some unrelated charge at the time he confessed. If Triplett was arrested pursuant to a preexisting and valid warrant on another charge, then the arrest was lawful, see, e.g. , Utah v. Strieff , --- U.S. ----, 136 S.Ct. 2056, 2062-63, 195 L.Ed.2d 400 (2016), which would defeat any claim that Triplett's confession was a product of an illegal arrest. We do not know whether there was a warrant in this case because Triplett never raised the issue at trial.

¶ 29. Moreover, even if we were to assume that Triplett was arrested without a warrant, that still would not answer the question whether the arrest was valid. A police officer can make an arrest without a warrant if he has probable cause to believe (a) that a felony has been committed and (b) that the person to be arrested is the one who committed it. State v. Woods , 866 So.2d 422, 425 (¶ 10) (Miss. 2003) ; Jones v. State , 993 So.2d 386, 391-92 (¶ 10) (Miss. Ct. App. 2008). Probable cause is

a practical, non-technical concept, based upon the conventional considerations of every day life on which reasonable and prudent men, not legal technicians, act. It arises when the facts and circumstances within an officer's knowledge, or of which he has reasonably trustworthy information, are sufficient to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.

Woods , 866 So.2d at 426 (¶ 11) (quoting Strode v. State , 231 So.2d 779, 782 (Miss. 1970) ).

¶ 30. On appeal, "[w]e apply a 'mixed' standard of review to this issue." Bondegard v. State , 81 So.3d 1181, 1185 (¶ 12) (Miss. Ct. App. 2011) (quoting Eaddy v. State , 63 So.3d 1209, 1212 (¶ 11) (Miss. 2011) ). We review de novo the question whether there was probable cause for the warrantless arrest. Id. (citing Eaddy , 63 So.3d at 1212 (¶ 11) ). However, we review the trial judge's findings regarding the underlying "historical facts ... under the substantial evidence and clearly erroneous standards." Id. (quoting Eaddy , 63 So.3d at 1212 (¶ 11) ).

¶ 31. In this case, because Triplett did not argue at trial that he was arrested without probable cause, the State was never called upon to articulate the basis for the arrest. Moreover, the trial judge was never called upon to make any findings of fact concerning the facts and circumstances of the arrest. Nor was the trial judge required to determine whether there was probable cause for the arrest. Thus, there are no relevant findings or rulings for this Court to review on appeal.

¶ 32. Lastly, even if we were to assume that Triplett was arrested without a warrant and without probable cause, that still would not resolve the question whether Triplett's later confession was admissible. "The mere fact that a defendant confesses while in custody following an illegal arrest does not per se render the confession inadmissible." Henry v. State , 486 So.2d 1209, 1213 (Miss. 1986). Rather, the confession is admissible if it is "sufficiently an act of free will to purge the primary taint" of the illegal arrest. Brown v. Illinois , 422 U.S. 590, 602, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (quoting Wong Sun v. United States , 371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ). "The question whether a confession is the product of a free will ... must be answered on the facts of each case. No single fact is dispositive." Id. at 603, 95 S.Ct. 2254. A proper Miranda warning is "an important factor ... in determining whether the confession [was] obtained by exploitation of an illegal arrest." Henry , 486 So.2d at 1213 (quoting Brown , 422 U.S. at 603, 95 S.Ct. 2254 ). "Other Brown factors which ought to be considered are (1) the temporal proximity of the arrest and the confession; (2) the presence of intervening circumstances; (3) the purpose and flagrancy of the official misconduct, i.e., the making of the illegal arrest; and (4) any other circumstances that seem relevant." Id. (quoting Hall v. State , 427 So.2d 957, 959-60 (Miss. 1983) ); see Brown , 422 U.S. at 603, 95 S.Ct. 2254.

¶ 33. Thus, if a defendant moves to suppress a confession as an exploitation of an illegal arrest, the trial judge must make findings of fact relevant to these " Brown factors," and the judge must then determine whether the confession was a product of the defendant's "free will" based on the "circumstantial evidence" and the "totality of the circumstances." See Keller v. State , 138 So.3d 817, 851-52 (¶¶ 79-82) (Miss. 2014). On appeal, we apply a deferential standard of review to the trial judge's findings of fact and ruling. See id. at 852 (¶ 82) ; Catledge v. State , 174 So.3d 293, 295-98 (¶¶ 2-10) (Miss. Ct. App. 2015).

¶ 34. In this case, because Triplett never alleged that his confession was the product of an illegal arrest, the trial judge did not make any findings of fact relevant to the Brown factors, other than to note that Triplett received a proper Miranda warning prior to his confession. Nor did the trial judge make an ultimate finding as to whether Triplett's confession was a product of his own "free will" despite his (allegedly) illegal arrest. Again, Triplett did not raise the issue, so there is no decision for us to review on appeal.

¶ 35. In summary, because Triplett did not challenge his arrest in the trial court, the State had no reason to present evidence to show that the arrest was valid. Nor did the State need to show that the confession was admissible under Brown 's multi-factor test. In addition, the trial judge had no reason to make findings or fact or conclusions of law regarding the existence of a warrant or probable cause, the circumstances of Triplett's confession, or whether the confession was a product of Triplett's "free will." Accordingly, the record is insufficient, and there are no relevant findings or rulings for this Court to review on appeal. For these reasons, and consistent with our general rule, Triplett's failure to raise this issue at trial bars him from doing so for the first time on appeal. Fleming , 604 So.2d at 292 ; Evans , 275 So.2d at 85. Triplett acknowledged his Miranda rights before he confessed to the burglary, and there is substantial evidence to support the trial judge's ruling that the confession was voluntary. Therefore, the trial judge did not abuse his discretion in admitting Triplett's confession.

II. Sufficiency and Weight of the Evidence

¶ 36. Triplett also argues that there was insufficient evidence to support his conviction and that the jury's verdict is against the overwhelming weight of the evidence. When this Court reviews a challenge to the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (quoting Jackson v. Virginia , 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ), abrogated on other grounds by Little v. State , 233 So.3d 288, 291-92 (¶¶ 14-20) (Miss. 2017).

¶ 37. We "review the trial court's decision to grant or deny a new trial for an abuse of discretion." Little , 233 So.3d at 292 (¶ 21). We must weigh the evidence in the light most favorable to the jury's verdict. Id. We will set aside the verdict only if "it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id. "We do not make independent resolutions of conflicting evidence ..., reweigh the evidence[,] or make witness-credibility determinations." Id. at (¶ 20) (citation omitted). The "credibility of witnesses and the weight and worth of their testimony" are issues for the jury to decide. Id.

¶ 38. In part, Triplett argues that the evidence was insufficient to convict him because his confession should have been suppressed. To that extent, his argument fails for the reasons already discussed above. Triplett also argues that there was evidence that he falsely confessed to protect his girlfriend; that his confession was too vague and conclusory to be considered credible; and that the State failed to prove when the burglary occurred or that there was an actual "breaking." Finally, Triplett asserts that there was nothing to establish that he actually or constructively possessed the equipment, only that he was nearby when police found it.

¶ 39. Triplett's weight and sufficiency arguments are without merit. "[R]ecanted or not," Triplett's confession that he burglarized the church was "direct evidence" that he burglarized the church. States v. State , 88 So.3d 749, 757 (¶ 34) (Miss. 2012). Moreover, Triplett specifically confessed that he "did break into" the church. Triplett's confession and the other facts in evidence were sufficient to support the verdict and the conviction.

CONCLUSION

¶ 40. Triplett waived his claim that his confession was "obtained by exploitation of his illegal arrest" because he did not raise the issue in the trial court, and there is sufficient evidence to support the jury's verdict and Triplett's conviction for burglary of a church.

¶ 41. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND TINDELL, JJ., CONCUR. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      The warrant was not presented at trial and is not included in the record.

      A photograph of the broken window, which had been boarded up, was admitted into evidence at trial. The photograph also shows broken glass on the ground outside the church.

      Sciple testified that Triplett wrote and signed the statement. Triplett acknowledged that he signed the statement but testified that Sciple wrote the statement for him.

      The only witnesses who testified before the jury were Reverend Hardy, Sciple, and an investigator from the sheriff's department who responded to Hardy's call about a possible burglary at the church.

      See Miss. Code Ann. § 97-17-33(2) (Rev. 2014) (providing that a conviction for burglary of a church shall be punishable by imprisonment for not more than fourteen years); Miss. Code Ann. § 99-19-81 (Rev. 2015) (providing that any person convicted of a felony as a nonviolent habitual offender "shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation").

      Although we mention Triplett's new trial motion, "a motion for a new trial is not an opportunity to revive an issue which the party waived by failing to make a contemporaneous objection." Hughes v. State , 90 So.3d 613, 624 (¶ 26) (Miss. 2012).

      There is no clear explanation in the record as to why Triplett was arrested. As discussed above, Sciple testified that the sound equipment looked like the type that might be used in a church, but there was no report of a church burglary at the time of Triplett's arrest. Because Triplett failed to raise this issue at trial, the record is insufficient for us to address the issue on appeal. However, our opinion does not preclude Triplett from raising the issue as part of a claim of ineffective assistance of counsel in a properly filed motion for post-conviction relief. See Battle v. State , No. 2016-KA-00534, --- So.3d ----, ----, 2018 WL 1805262, at *4 (¶¶ 17-20) (Miss. Ct. App. Apr. 17, 2018).

      "[B]reaking and entering" of the church is an essential element of the offense. Miss. Code Ann. § 97-17-33(2). "Any effort, however slight, such as the turning of a door knob to enter, constitutes a breaking ...." Alford v. State , 656 So.2d 1186, 1190 (Miss. 1995).


author: FAIR, J., FOR THE COURT:

text:
    James C. GRAHAM, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00336-COA
    Court of Appeals of Mississippi.
    October 2, 2018 Rehearing Denied December 4, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, Jackson
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Early one morning, thirteen-year-old Betty told her school bus driver that her father, James Graham, had sexually abused her the night before. Betty said Graham entered the bathroom while she was showering and, later that night, came in to her bedroom and forced her to perform oral sex on him. According to Betty, she threw up beside her bed afterwards.

¶ 2. Graham was prosecuted for one count each of sexual battery and gratification of lust. At trial, both Graham and his wife testified Graham left their bedroom only twice that night, once to use the bathroom and once to get a drink from the refrigerator. Graham denied ever going into Betty's bedroom. Graham's wife testified she knew of his movements the entire night because they had stayed up all night doing drugs.

¶ 3. The jury found Graham not guilty of sexual battery, but it convicted him of gratification of lust. Graham was sentenced to fifteen years in the custody of the Mississippi Department of Corrections, without eligibility for parole.

¶ 4. On appeal, Graham claims the circuit court erred in two respects. First, he claims the trial court erred in admitting four separate statements made by Betty after the incident without holding a hearing to determine whether she was of tender years. See M.R.E. 803(25). Second, Graham claims he received ineffective assistance of counsel at trial.

DISCUSSION

1. Tender-Years Hearing

¶ 5. The standard of review for the admission or exclusion of hearsay evidence is abuse of discretion. White v. State , 48 So.3d 454, 456 (¶ 9) (Miss. 2010). Reversible error may only be found where the trial court's abuse of discretion has affected a substantial right of a defendant and where the defendant raised an objection or made an offer of proof at trial. Lynch v. State , 877 So.2d 1254, 1281 (¶ 86) (Miss. 2004).

¶ 6. Graham made no objection to the statements at trial. Still, on appeal, he contends the trial court was required to hold a hearing and determine that Betty was of tender years and that the time, content, and circumstances of her statements provided substantial indicia of reliability before it could admit her out-of-court statements. For this argument, Graham relies on Nunnery v. State , 126 So.3d 105 (Miss. Ct. App. 2013), where this Court held that the trial court committed error-albeit harmless error-in failing to conduct a tender-years hearing. Id. at 109 (¶¶ 12-13). We observed that Nunnery had filed a motion in limine to exclude the out-of-court statements, but she also "failed to raise [the issue] at the pretrial motions hearing and failed to object on that basis during [the witness's] testimony." Still, we held-without any further analysis or explanation-that under the particular facts of that case the trial court should have held a tender-years hearing. Id. at (¶ 12).

¶ 7. It is not clear what Nunnery did to preserve the issue for appeal, but, at the very least, she filed a motion in limine challenging the evidence. See id. Graham filed no such motion, and his case is distinguishable on that basis alone. But we take this opportunity to clarify that statements from a child in a sex-abuse case are no different than any other statements that are allegedly hearsay when it comes to the contemporaneous objection rule-there is a contemporaneous objection rule, and it will be enforced. A contemporaneous objection must be made at trial in order to preserve the issue for appeal. Smith v. State , 530 So.2d 155, 162 (Miss. 1988). And an objection or a motion, standing alone, will not preserve the issue for appeal unless the party pursues it to a ruling by the trial court: "It is the responsibility of the movant to obtain a ruling on all motions filed by him, and the failure to obtain a ruling constitutes a waiver." Clayton v. State , 893 So.2d 246, 249 (¶ 15) (Miss. Ct. App. 2004) (quoting Martin v. State , 354 So.2d 1114, 1119 (Miss. 1978) ). Likewise, "[i]t is the duty of a trial counsel ... to promptly make objections and insist upon a ruling by the trial court." Keller v. State , 138 So. 3d 817, 864 (¶ 127) (Miss. 2014).

¶ 8. Graham's concerns with the hearsay testimony could be addressed, if at all, for plain error. See Keithley v. State , 111 So.3d 1202, 1204 (¶ 8) (Miss. 2013). "To constitute plain error, the trial court must have deviated from a legal rule, the error must be plain, clear or obvious, and the error must have prejudiced the outcome of the trial." Id. With regard to hearsay evidence, we have held that there can be no plain error because "[n]o legal rule requires a trial judge to exclude hearsay in the absence of an objection," and "[t]rial judges are not expected to strike or exclude hearsay sua sponte." Shaheed v. State , 205 So.3d 1105, 1112 (¶ 21) (Miss. Ct. App. 2016) (internal quotation marks omitted). We further observed in Shaheed that "[w]hether to object is a decision left to the discretion of counsel, who may have strategic reasons for not objecting." Id. Indeed, that appears to be exactly what happened here: Graham's attorney did not object to the statements because he wanted to use the apparent inconsistencies between them to attack Betty's credibility.

¶ 9. Absent a contemporaneous objection, the trial court was not required to hold a tender-years hearing nor make factual findings related to whether the tender-years exception applied, and we cannot find plain error in the unopposed admission of hearsay statements. This issue is without merit.

2. Ineffective Assistance of Counsel

¶ 10. Graham claims he received ineffective assistance of counsel at trial. In support of his claim, Graham argues his attorney was ineffective in not objecting to hearsay testimony and eliciting testimony that Graham may have previously been arrested for rape in the past.

¶ 11. Typically, claims of ineffective assistance should be raised in a motion for post-conviction relief, not on direct appeal. Pinter v. State , 221 So.3d 378, 386 (¶ 18) (Miss. Ct. App. 2017). "Because an appellate court is limited to the trial record on direct appeal, issues of ineffective assistance of counsel are more appropriate in a motion for post-conviction relief." Id. (quoting Johnson v. State , 191 So.3d 732, 735-36 (¶ 13) (Miss. Ct. App. 2015) ). "With respect to the overall performance of the attorney, 'counsel's choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall[s] within the ambit of trial strategy' and cannot give rise to an ineffective assistance of counsel claim." Carr v. State , 873 So.2d 991, 1003 (¶ 27) (Miss. 2004) (quoting Cole v. State , 666 So.2d 767, 777 (Miss. 1995) ).

¶ 12. As we explained in the prior issue, Graham's attorney's decision not to object to the victim's various statements appears to have been trial strategy. The same appears to be true for the allegation of prior rape charges; the attorney tried to show that the victim had falsely alleged Graham had been previously charged or arrested for rape. Still, the facts surrounding these issues are not fully apparent from the record, and they are better suited for a motion for post-conviction relief. We deny relief on Graham's ineffective assistance claims on direct appeal without prejudice to file a future motion for post-conviction relief.

¶ 13. AFFIRMED.

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

      Because she is a minor, we will refer to the child as "Betty" to protect her identity.