author: Judge Paula A. Brown

text:
    STATE of Louisiana v. Will NEWSOME and Aaron Henderson
    NO. 2018-K-1075
    Court of Appeal of Louisiana, Fourth Circuit.
    February 27, 2019
    Leon A. Cannizzro, Jr., District Attorney, Parish of Orleans, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, 619 White Street, New Orleans, Louisiana 70119, COUNSEL FOR RELATOR/STATE OF LOUISIANA
    Alexis Chernow, Jerry Settle, OPDLA, 1465 N. Broad Street, New Orleans, Louisiana 70119, COUNSEL FOR RESPONDENTS
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Paula A. Brown )
   Judge Paula A. Brown

The State seeks supervisory review of the district court's November 5, 2018 judgment, which granted the motions to suppress identification filed on behalf of Defendants, Will Newsome and Aaron Henderson, and found no probable cause. Finding no abuse of the district court's discretion, we grant the State's writ application, but deny relief sought.

Factual and Procedural History

On January 15, 2016, the State charged Defendants with armed robbery with a firearm and aggravated flight from an officer, respective violations of La. R.S. 14:64.3 and La. R.S. 14:108.1 ; additionally, Defendant Newsome was charged with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. Defendants pled not guilty. Thereafter, attorneys for Defendants filed pre-trial motions, including a motion to suppress and a motion for preliminary examination. The district court held the motion to suppress and probable cause hearings on October 31, 2018 and November 5, 2018.

During the hearing, Detective Chad Cockerham testified that on November 19, 2015, the New Orleans Police Department ("NOPD") investigated a reported armed robbery that occurred at approximately 8:30 p.m. in the 800 block of Forstall Street. The victim, Lester Frey, reported that he was robbed by two males who fled the scene in a blue two-door Honda Accord, with damage to the front passenger side. Detective Cockerham relayed the victim told him that the Honda approached him as he walked down the 5400 block of Royal Street. The victim saw a light-skinned black male in the passenger seat as the vehicle passed. After the victim turned onto the 800 block of Forstall Street, a dark-skinned black male subject with dreads approached him. The dark-skinned black male walked on the other side of the street, then crossed the street, produced a silver and black handgun and demanded the victim's money. The victim said, "whoa, whoa, whoa, don't shoot." Another subject, a light-skinned male, appeared and rummaged through the victim's pockets, removing cash and keys. After removing his property, the subjects fled in the Honda.

Detective Cockerham clarified the victim "stated that the subject in possession of the firearm was a dark-skinned black male with braided hair" and "specifically stated that the subject had on either a black T-shirt or a black sweatshirt, unknown bottoms" and was "approximately six feet in height." Detective Cockerham said the victim described the light-skinned subject as between five-seven and five-eight in height and "believed that that subject as well had on ... [a]dark-colored shirt or sweatshirt" and unknown bottoms.

Detective Cockerham relayed that other NOPD officers gave chase to the Honda and its occupants after the report of the robbery. After the car came to a rest, several suspects fled the vehicle near the 5400 block of North Rampart. The officers set up a one-block perimeter at that location. They detained three subjects, later identified as Albert Hagan, Tyrone Holmes, and Defendant Newsome, who were walking in an open, grassy lot inside the perimeter. Defendant Henderson and another subject, Montel Lassassier, were detained at another location outside the perimeter-in front of a residence located in the 5400 block of Burgundy. Detective Cockerham also confirmed that sometime after the detention of the subjects, the NOPD received 911 calls from a resident within the perimeter who reported noise from unknown persons emanating from under her house.

After Defendant Henderson, Defendant Newsome, and the other subjects had been taken into custody, Detective Cockerham relocated to the area where the subjects were being detained to view them. Detective Cockerham, upon viewing the five subjects, concluded that Defendant Newsome and Defendant Henderson matched the victim's physical descriptions. Detective Cockerham then spoke with the victim and "elected to have the victim relocated to Flood and Rampart Street for [him] to do a show-up identification." Detective Cockerham told the victim that he intended to take him to see if he recognized a vehicle; and after that, to see if the victim recognized two individuals. He said that they were going to the 5400 block of Rampart, the location where two subjects had fled from the Honda during the police pursuit. Detective Cockerham also admitted he informed the victim "that the robbers who robbed him had actually attempted to rob another man in the same area" that evening.

The victim immediately identified the Honda. Detective Cockerham then radioed for an officer to bring out Defendant Newsome. Detective Cockerham told the victim that he was going to show him someone that matched somewhat the description he gave based on the "twists" in the suspect's hair. Defendant Newsome was hand-cuffed, placed about ten feet in front of a police cruiser, and stood next to a police officer, with his face illuminated by light from a nearby residence and the police utilizer spotlight. When asked if the victim said "it looks like him" before identifying Defendant Newsome as the dark-skinned subject who approached him with the firearm, Detective Cockerham testified he could not recall.

After Defendant Newsome's identification, Detective Cockerham had the police bring out Defendant Henderson. Defendant Henderson was viewed under conditions similar to Defendant Newsome. The victim identified Defendant Henderson as the light-skinned subject who rummaged through his pockets. Akin to Defendant Newsome's identification, Detective Cockerham could not recall any statements the victim made upon his identification of Defendant Henderson.

During cross-examination and after being shown body camera footage, Detective Cockerham admitted the victim told him during the show-up identifications that one of the robbers had something tied around his face during the offense. Detective Cockerham could not recall which robber the victim referenced as having his face covered, he did not question the victim about this statement, nor was the statement included in his initial or supplemental report. Detective Cockerham also acknowledged that several light-skinned black men were involved in both robbery incidents.

Detective Cockerham did not present the other three detainees to the victim for identification, nor could he recall what they wore or provide a description of them. Because Defense counsel asserted some subjects were "darker-skinned" than Defendant Newsome, he later asked the district court to take judicial notice of Defendant Newsome's booking photograph-the booking photo showed the color of Defendant Newsome's skin and revealed he was wearing a black buttoned-down shirt, not a black t-shirt or black sweatshirt that Detective Cockerham said the victim had "specifically" described.

Detective Cockerham testified that the black and silver handgun recovered near the Honda after the chase tested negative for Defendant Newsome's DNA. He also confirmed the police did not recover cash or any other items taken from the victim on the persons of Defendant Newsome or Defendant Henderson.

Shirley Daniels, who described Defendant Newsome as her ex-son-in-law and father of her some of her grandchildren, testified that she braided his hair on her porch on Saint Maurice Street for about three hours on the evening of the robbery. Her grandson, Tyrone Holmes (one of the detainees), was also present. She said Defendant Newsome had come from work and was wearing his work outfit-a black buttoned-up shirt and black pants. Ms. Daniels said after she fixed them something to eat, Defendant Newsome and Mr. Holmes left her home on foot. About twenty or thirty minutes later, she said Mr. Holmes called her to say that Defendant Newsome had been detained by the police.

At the close of the hearing, the district court found no probable cause "given all of the circumstance[s] surrounding this particular arrest." In granting the motion to suppress identification, the district court opined:

Noting in particular that the timeframe in which the detective testified to[;] noting ... Mr. Henderson [sic] and Mr. Newsome were both located [in] separate places under separate circumstances; [and] noting the descriptions that were given, especially with respect to Mr. Will Newsome being a "dark-skinned" black man [,] Mr. Newsome, I may wear reading glasses, but I don't think that you are a dark-skinned black man.
Noting the various issues with respect to the other subjects that were also detained with [Defendants]; I don't know with what reasonable suspicion, but I'm noting that there were other subjects detained.
With respect to the suppression of ID, the court grants the suppression of ID noting that because there were other subjects detained, and again noting that no reasonable suspicion has really been established for detention of those subjects[,] that the show ups that were conducted were not of subjects who were familiar to the alleged victim in this particular case[;] so I think that a different process for a lineup should have been conducted.

DISCUSSION

A district court's determination regarding the admissibility of an out-of-court identification and its ruling with regard to a motion to suppress an out-of-court identification will not be disturbed absent an abuse of discretion. State v. Briley , 2013-1421, p. 15 (La. App. 4 Cir. 10/1/14), 151 So.3d 633, 643. Generally, the defendant has the burden of proof on a motion to suppress an out-of-court identification. La. C.Cr.P. art. 703(D). In order to suppress an identification, a defendant must meet a two-fold burden: the defendant must prove that the identification procedure was suggestive and that there was a substantial likelihood of misidentification as a result of the identification procedure. State v. Stovall , 2007-0343, p. 9 (La. App. 4 Cir. 2/6/08), 977 So.2d 1074, 1085 ; State v. Leger , 2005-0011, p. 59 (La. 7/10/06), 936 So.2d 108, 151.

An identification procedure is suggestive, if during the procedure, the witness' attention is unduly focused on the defendant. State v. Robinson , 386 So.2d 1374, 1377 (La. 1980). The facts of this case unquestionably demonstrate that the "show-up" identification procedure employed by NOPD was suggestive, in that it unduly focused attention on Defendants. Therefore, we must turn to the next prong-whether Defendants proved the suggestive identification presented a substantial likelihood of misidentification.

The U.S. Supreme Court, in Neil v. Biggers , 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), outlined five factors to be considered when determining whether a suggestive identification presented a substantial likelihood of misidentification: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. "Against these factors is to be weighed the corrupting effect of the suggestive identification itself." Manson v. Brathwaite , 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

With regards to the first and second factors-the victim's opportunity to view the assailants at the time of the offense and his degree of attention-the record reflects the robbery occurred at night in the 800 block of Forstall, where the lighting was minimal from the street lights. One of the perpetrators had his face covered. The robbery occurred fairly quickly and the victim's attention was divided between the two perpetrators in the brief encounter.

The third factor-the accuracy of the prior description- reveals some fluidity in Detective Cockerham's account of the description the victim gave of the perpetrators. As to Defendant Newsome, Detective Cockerham used the words "dreads," "twists," and "braids" interchangeably to reference the victim's description of the gunman's hairstyle. Detective Cockerham also testified the victim said the gunman specifically wore either a black t-shirt or sweatshirt, whereas Ms. Daniel's testimony and Defendant's booking photograph, of which the trial court took judicial notice, indicated Defendant Newsome wore a black buttoned-down shirt. The district court also took judicial notice that Mr. Newsome was not a "dark-skinned man." The victim could not describe the bottoms of either perpetrator. Moreover, Detective Cockerham did not consider that at least one of the perpetrator's faces was covered when he selected Defendants Newsome and Henderson to appear in the show-up identification. Neither Defendant Newsome nor Defendant Henderson were presented in the show-up line up with any covering on their faces before being identified by the victim.

The fourth factor-the level of certainty expressed by the victim at the show-up identifications-remains largely unknown.

Based upon police body camera footage, before the victim positively identified both Defendants, the victim told Detective Cockerham that one of the robbers had his face covered. This statement was not included in any of Detective Cockerham's reports. Detective Cockerham could not recall if the victim told him that the Defendants looked like the robbers before they were identified.

As to the fifth factor-the time between the crime and the confrontation-Detective Cockerham testified the victim identified Defendants approximately thirty minutes after the robbery.

The relatively short amount of time between the robbery and Defendants' identification has been found sufficient to support a reliable identification. See State v. Everridge , 523 So.2d 879, 881 (La. App. 4 Cir. 1988). However, the other four factors contain sufficient indicia of unreliability. In weighing these factors against the corrupting effect of the suggestive identification, we cannot say the district court abused its discretion in granting Defendants' motion to suppress.

Absent a reliable identification of Defendants and based on the totality of the facts, which included, but were not limited to: (1) police officers did not describe or identify the number of occupants who fled the Honda during the police pursuit; (2) Defendants Newsome and Henderson were detained in different locations with different persons; (3) no cash or other robbery items were found on Defendants; (4) other 911 calls from a resident within the perimeter of noise from unknown persons under her house at the time of Defendants' detention; and (5) no DNA evidence connected Defendants to the robbery, we also find no abuse of the district court's discretion in finding no probable cause.

CONCLUSION

The writ application is granted. We find no abuse of the district court's discretion in granting Defendants' motions to suppress and finding no probable cause. Accordingly, the relief the State seeks is denied.

WRIT GRANTED; RELIEF DENIED

LOBRANO, J., DISSENTS AND ASSIGNS REASONS.

I respectively dissent from the majority's writ disposition that affirmed the district court's judgment suppressing the out of court, "one-on-one show up" identifications of the defendants, Will Newsome and Aaron Henderson ("Defendants"). I find that the district court erred; thus, I would grant the writ filed by the State, vacate the judgment suppressing the identifications and the finding of no probable cause, and remand for further proceedings.

From my review, I find that Defendants failed to prove, under the totality of the circumstances, that there was a substantial likelihood of their misidentifications. The district court abused its discretion in granting Defendants' motion to suppress and not allowing the admission at trial of the out-of-court, "one-on-one show up" identifications. The lower court and the majority placed an undue burden of proof on the State, which is not required at a pre-trial hearing on a motion to suppress an identification. See La. C. Cr. P. art 703 (D).

An out-of-court "one-on-one show up" concerns "an identification procedure that takes place shortly after a crime is committed, usually at the scene of the crime or the apprehension of a suspect, whereby a victim is asked whether the victim recognizes a person suspected to be the perpetrator of a crime against the victim."

State v. Brown , 09-0884, p. 3 (La.App. 4 Cir. 3/31/10), 36 So.3d 974, 978, quoting State v. Harold , 03-0649, p. 6 (La.App. 4 Cir. 11/12/03), 861 So.2d 262, 265, n. 2. "Such procedures are permissible when, for example, the accused is apprehended within a short time after the offense and is returned to the scene of the crime for immediate identification, because, under appropriate circumstances, a prompt in-the-field identification promotes accuracy and expedites the release of innocent suspects." Brown , 09-0884, pp. 5-6, 36 So.2d at 979.

This court, however, has rejected the idea that one-on-one identifications are suggestive per se or inherently suggestive. In State v. Green , 10-0791, pp. 8-9 (La.App. 4 Cir. 9/28/11), 84 So.3d 573, 580, we recognized that one-on-one identifications are generally not favored, although such identification procedures are permissible under certain circumstances where a "substantial likelihood of misidentification" is not present:

One-on-one identifications are permissible, for example, when the accused is apprehended within a relatively short period of time after the occurrence of the crime and is returned to the scene for immediate identification. Immediate confrontation assures the reliability of the identification-given that the perpetrator's appearance is fresh in the witness's mind-lessens the possibility that the perpetrator's clothes or appearance will be changed, and insures early release of innocent subjects. However, a one-on-one identification procedure is not suggestive per se. Thus, it necessarily follows that a one-on-one identification does not unduly focus the witness's attention on the accused, per se.
In addition to suggestiveness, a defendant must prove that there was a substantial likelihood of misidentification as a result of the identification procedure. Despite the existence of a suggestive pretrial identification, an identification may be permissible if there does not exist a "very substantial likelihood of irreparable misidentification." [Citations omitted.]

In Brown , 09-0884, p. 4, 36 So.3d at 978, we stated:

The constitutional basis for a motion to suppress an out-of-court identification is found in the Due Process protections of the United States Constitution's Fifth and Fourteenth Amendments. See Neil v. Biggers , 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In a motion to suppress, "the burden of proof is on the defendant to prove the ground of his motion ..." La.C.Cr.P. art. 703 D. Accordingly, the defendant bears the burden of proof on a motion to suppress an out-of-court identification. State v. Stovall , 07-0343, p. 16 (La.App. 4 Cir. 2/6/08), 977 So.2d 1074, 1084. The burden of proof does not shift to the prosecution as it does in the context of determining the admissibility of evidence of a purported confession or due to a defendant's assertion that his rights have been violated after he has made an initial showing of a reasonable expectation of privacy and a warrantless search or seizure. See State v. Williams , 07-700, p. 8 (La.App. 4 Cir. 2/13/08), 977 So.2d 1101, 1109 (the prosecution must establish the admissibility of a purported confession by showing that it was voluntarily made), and State v. Bazile , 386 So.2d 349, 353 (La.1980) (on a motion to suppress, the burden of proof shifts to the prosecution to prove the admissibility of evidence once the defendant makes an initial showing that his rights have been violated by a warrantless search).
To prevail on such a motion, the defendant must show two things: that the identification procedure was suggestive, and, having substantiated that, he must show that there was substantial likelihood of misidentification as a result of the suggestive identification procedure. State v. Higgins , 03-1980, p. 19 (La. 4/1/05), 898 So.2d 1219, 1231-32. Accordingly, even where the defendant has proven, or the court has presumed, the suggestiveness of an identification process, to carry his burden the defendant must also show that there was a substantial likelihood of misidentification as a result of the procedure. State v. Prudholm , 446 So.2d 729, 738 (La.1984) ; see also State v. Robinson , 09-0922 (La.App. 4 Cir. 3/10/10), --- So.3d ----, 2010 WL 830964. It is the likelihood of misidentification that violates due process, not suggestibility by itself, and thus the mere fact that an identification is unduly suggestive is not sufficient to establish its inadmissibility. State v. Harold , supra , 03-0649 at p. 6, 861 So.2d at 266.

Under Manson v. Brathwaite , 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), the factors which courts must examine to determine, from the totality of the circumstances, whether the suggestive identification presents a substantial likelihood of misidentification include: 1) the witness's opportunity to view the criminal at the time of the crime; 2) the witness's degree of attention; 3) the accuracy of his prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation.

In this case, applying the Manson factors, no substantial likelihood of misidentification exists as a result of the one-on-one identification procedure. It is undisputed that the victim got a good look at his assailants. Although the robbery took place at night, it is uncontroverted that the area outside the victim's home was equipped with lighting that allowed the victim to get a good look at the perpetrators' faces such that the likelihood of misidentification was not substanital. Defendants fit the description provided by the victim who also positively identified the abandoned Honda Accord as the vehicle used in the commission of the robbery. He further identified Newsome (dark-skinned black male with braided hair) as the person who pointed a gun in his face demanding his belongings and Henderson (lighted-skinned male) as the person who had rummaged through his pockets. The victim was certain Defendants were the perpetrators of the robbery, and the time between the crime and the identification, approximately 30 minutes, was short enough for memory of the perpetrators' appearance to be in his mind. All of these factors establish that the identifications of Defendants were reliable and no substantial likelihood of misidentification was present.

Under such circumstances, the district court erred in not allowing a jury to weigh the victim's out-of-court identifications of Defendants. As the United States Supreme Court noted in Manson v. Brathwaite , supra , 432 U.S. at 116, 97 S.Ct. 2243 :

We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.

Brown , 09-0884, p. 10, 36 So.3d at 981.

Thus, I find that the district court erred in granting Defendants' motion to suppress.

I would grant the State's writ, vacate the judgment suppressing the identifications and the finding of no probable cause, and remand for further proceedings.

      Detective Cockerham initially testified that four people were detained in the grassy lot. He said he learned Defendant Newsome had exited the perimeter and had been detained after Defendant Newsome had attempted to enter the 5400 Burgundy Street residence without permission. However, defense counsel introduced body camera footage from other officers wherein the aunt of Montel Lassassier stated that Mr. Lassassier lived at 5400 Burgundy Street. Detective Cockerham did not have on a body camera. After Detective Cockerham viewed the body camera footage, he agreed with defense counsel's statement that the body camera footage indicated Mr. Lassassier and Defendant Henderson were detained while exiting, not entering, the 5400 Burgundy Street residence.

      Detective Cockerham testified that approximately five minutes after the victim's reported robbery, a second robbery incident was reported in the same area at 6122 Dauphine Street. The second victim, Conrad Bailey, also referenced a blue Honda used in his robbery attempt. Mr. Bailey described the perpetrator as a tall, skinny light-skinned black male, wearing a gray sweatshirt and holding a black and silver gun. The perpetrator had on blue or black pants, a gray leather cap, and had his shirt pulled up over his face. The perpetrator did not take any items from Mr. Bailey. He ran back to the Honda and got in the passenger seat after Mr. Bailey stated that neither he nor his companion had their wallets. Detective Cockerham verified that Mr. Bailey did not identify Defendant Henderson, who was presented in a similar show-up identification, as the person who tried to rob him. However, Mr. Bailey did identify the Honda. Sometime later, Mr. Bailey said he knew Defendant Newsome and excluded him as the robber. The district court sustained the State's objection to defense counsel's attempt to have Mr. Bailey testify at the motions hearing. The State agreed that Mr. Bailey and the victim in the present matter "described two totally different people;" consequently, the State ultimately determined the robberies were two separate incidents and did not charge Defendants herein with the robbery of Mr. Bailey.

      Detective Cockerham initially testified that only Mr. Bailey, the second robbery victim, stated that the robber had something tied around his face. See fn. 2.

      Detective Cockerham testified on direct examination that the victim told him the robbers took cash and his keys. Upon cross-examination, he acknowledged that his report documented that the robbers took only an unspecified amount of cash.


source: Caselaw Access Project

author: GREENLEE, J., FOR THE COURT: BARNES, J., CONCURRING IN PART AND DISSENTING IN PART:

license: Public Domain

text:
    James Edward PRYOR, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00516-COA
    Court of Appeals of Mississippi.
    August 28, 2018 Rehearing Denied November 27, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, Jackson
    BEFORE GRIFFIS, P.J., CARLTON, WILSON AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. James Edward Pryor challenges his conviction for driving a vehicle while under the influence of an impairing substance at an aggravated level (DUI).

¶ 2. The Jones County Circuit Court sentenced him to twenty-one years with four years suspended, with seventeen years to serve in the custody of the Mississippi Department of Corrections, followed by four years of post-release supervision. Pryor moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The court denied his motion, and Pryor appeals.

¶ 3. He alleges that: (1) evidence was insufficient to support the guilty verdict; (2) the jury was not properly instructed on the elements of aggravated DUI; (3) the circuit court erred when it allowed an accident reconstructionist to testify; (4) his ineffective-assistance-of-counsel claim should be preserved; and (5) the circuit court erred when it denied his motion to suppress evidence. We affirm the circuit court's judgment.

FACTS AND PROCEDURAL HISTORY

¶ 4. On a summer evening in 2013, a nurse was driving home from work when she noticed a black truck hurriedly approaching her from behind. Concerned by the driver's erratic behavior, she cautiously slowed, allowing the black truck to pass.

¶ 5. The black truck then swerved and rear-ended the tan truck driving ahead of the nurse. The collision pushed the tan truck off the road where it rolled several times and pinned one of its passengers beneath it. The nurse pulled over and called 911.

¶ 6. The black truck stopped, and its driver, Pryor, emerged. The nurse asked him to sit or lie down until help came, but he refused and repeatedly walked back and forth to his truck.

¶ 7. A patrolman with the Mississippi Department of Public Safety soon arrived and spoke with Pryor. He saw Pryor's staggered walk, heard his slurred speech, and smelled his breath. Pryor told him that he drank alcohol that day and did not remember the accident. The patrolman took Pryor to a nearby hospital, where a warrant permitted Pryor's blood to be drawn several hours later. The blood sample was sent to a crime lab.

¶ 8. Later, another patrolman measured and documented the debris. This patrolman also served as an accident reconstructionist. He reviewed photographs, took notes, and wrote a report. He later testified at trial as an expert.

¶ 9. Over the next several months, the crime lab tested Pryor's blood, and the pinned passenger underwent eight surgeries. The blood sample tested positively for both alcohol and methamphetamine. At the time of trial, the injured passenger-bedridden for nearly a year-could no longer work at his former construction job and struggled to work as a motel housekeeper once a week.

¶ 10. In March 2017, a jury found Pryor guilty of an aggravated DUI offense. The circuit court sentenced him to twenty-one years with four years suspended, with seventeen years to serve, followed by four years of post-release supervision. Pryor then moved for a JNOV or, in the alternative, a new trial, which the circuit court denied. He appeals.

DISCUSSION

I. Was evidence sufficient to support the guilty verdict?

¶ 11. To determine whether evidence is sufficient to sustain a conviction in Mississippi, we ask "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." Brown v. State , 217 So.3d 805, 807 (¶ 5) (Miss. Ct. App. 2017) (citing Jackson v. Virginia , 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). An aggravated DUI conviction in Mississippi stems from the following:

It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; (b) is under the influence of any other substance which has impaired such person's ability to operate a motor vehicle; ... [or] (d) is under the influence of any drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substances Law ....

Miss. Code Ann. § 63-11-30(1) (Rev. 2012). It further requires that:

Every person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another or mutilates, disfigures, permanently disables or destroys the tongue, eye, lip, nose or any other limb, organ or member of another ....

Miss. Code Ann. § 63-11-30(5) (Rev. 2012).

¶ 12. Pryor does not dispute that evidence was sufficient to find that he negligently caused permanent disability to the tan truck's pinned passenger. That victim underwent eight surgeries and still cannot return to his former occupation. He can barely work as a motel housekeeper once a week.

¶ 13. It is the element contained in subsection (1) with which Pryor quarrels. He asserts that the jury did not indicate whether it based its verdict on the intoxicant being the L-isomer or the D-isomer of methamphetamine, asserting one of those intoxicants-L-isomer-cannot cause impairment. Therefore, he reasons that the State did not prove the element of impairment beyond a reasonable doubt.

¶ 14. Testimonial evidence indicates Pryor drove erratically-a clear sign of impairment. A patrolman noticed other obvious signs, including staggered walk, slurred speech, and odorous breath. Pryor even admitted to drinking and stated that he did not remember the accident. Also, the nurse testified about her observations of Pryor's driving, the wreck itself, and Pryor's behavior on the roadside. Understandably, Pryor declines to address this testimonial evidence in his argument.

¶ 15. On the other hand, the jury did not specify upon which intoxicant it based its verdict, nor was it instructed to do so. However, we presume that jurors follow the court's instructions. Stubbs v. State , 878 So.2d 130, 137 (¶ 19) (Miss. Ct. App. 2004). And we will not reverse the verdict for "mere want of form, so long as the jury's intent can be understood in a reasonably clear manner." Campbell v. State , 164 So.3d 519, 521 (¶ 6) (Miss. Ct. App. 2015) (internal quotation marks omitted) (quoting Jordan v. State , 912 So.2d 800, 814 (¶ 35) (Miss. 2005) ).

¶ 16. We note that the jury was instructed on the charge of aggravated DUI. The instruction tracked the indictment and the statute, and as the jury had sufficient evidence to find that Pryor was under the influence of intoxicating liquor or methamphetamine that impaired his ability to operate a motor vehicle, the jury did not have to find that a specific isomer was present.

¶ 17. In fact, the statute even states that one can be convicted if he is under the influence of "any other substance," not just liquor or controlled substances, such as methamphetamine. Indeed, this court has upheld a verdict under that statute in which the defendant was found impaired by anxiety medication. Roberts v. State , 229 So.3d 1060, 1068 (¶ 28) (Miss. Ct. App. 2017).

¶ 18. Considering the evidence in the light most favorable to the State, a rational trier of fact could have found Pryor guilty of the charge of aggravated DUI. Therefore, we find sufficient evidence exists to support the verdict. Thus, the circuit court properly denied Pryor's motion for a JNOV.

II. Was the jury properly instructed on the elements of aggravated DUI?

¶ 19. Pryor did not object to the jury instructions on the charge of aggravated DUI at trial. This failure results in a procedural bar on appeal "unless it amounts to plain error." Berry v. State , 728 So.2d 568, 571 (¶ 6) (Miss. 1999) (citing Sanders v. State , 678 So.2d 663, 670 (Miss. 1996) ).

¶ 20. The plain error doctrine requires that error exists and that the error "resulted in a manifest miscarriage of justice." Walters v. State , 206 So.3d 524, 530 (¶ 16) (Miss. 2016) (quoting Williams v. State , 794 So.2d 181, 187 (¶ 23) (Miss. 2001) ). For it to apply, we must find that (1) the circuit court deviated from a legal rule, (2) "the error is plain, clear, or obvious," and (3) the error "prejudiced the outcome of the trial." Id. (quoting McGee v. State , 953 So.2d 211, 215 (¶ 8) (Miss. 2007) ).

¶ 21. The circuit court gave Instruction D-4A, which provided:

If you find from the evidence in this case beyond a reasonable doubt that:
1. The indictment in this case occurred on or about the 29th day of June, 2013, in the First Judicial District of Jones County, Mississippi,
2. James Edward Pryor drove or operating a motor vehicle; and
3. negligently caused an accident which resulted in the mutilation or disfigurement to Jaime Mendez's leg by crashing his motor vehicle into the rear of the motor vehicle in which Jaime Mendez was a passenger; and
4. at the time, James Edward Pryor was driving or operating the defendant's vehicle under the influence of methamphetamine and/or alcohol or combination thereof which impaired his ability to drive;
then you shall find the defendant guilty as charged.
If the State has failed to prove any one or more of the above elements beyond a reasonable doubt, then you shall find James Edward Pryor not guilty.

¶ 22. This instruction aligns with essential elements of an aggravated DUI conviction under section 63-11-30(5), which we stated before.

¶ 23. But Pryor does not insist that the circuit court gave the wrong instructions; rather, he asserts that the circuit court erred in not further defining the terms "mutilation" or "disfigurement" for the jury. He contends that these terms are ones of art and because the circuit court did not instruct the jury as to their precise legal meanings, the circuit court did not give proper instructions.

¶ 24. However, we find that even without the circuit court giving some specialized meaning to the terms "mutilation" or "disfigurement," the jury could reasonably concur that the terms applied to Pryor's case based on the presented evidence. This alleged failure did not prejudice the trial's outcome. Again, the circuit court properly denied Pryor's posttrial motion.

III. Did the circuit court err when it allowed the accident reconstructionist to testify?

¶ 25. We must first determine if Pryor's claim is procedurally alive. We find that it is not. He did not object to the accident reconstructionist's testimony at trial. This failure results in a procedural bar on appeal. Tate v. State , 912 So.2d 919, 928 (¶ 27) (Miss. 2005) (citing Wilcher v. State , 479 So.2d 710, 712 (Miss. 1985) ).

¶ 26. Notwithstanding that bar, we find it, at best, could only be harmless error. Pryor asserts that the circuit court's failure to tender the accident reconstructionist as an expert witness should have resulted in his inability to testify. But even without the expert testimony, the jury could have determined the accident's specifics based on other testimonial evidence. This issue is without merit.

IV. Should we preserve Pryor's ineffective-assistance-of-counsel claim?

¶ 27. Pryor asks this court-in a footnote under the section that details the accident reconstructionist's testimony-that "the issue of ineffective assistance of counsel be preserved." Because his attorney failed to object at trial to the accident reconstructionist's testimony, Pryor asks this court to preserve his ineffective-assistance-of-counsel issue for review on a postconviction relief proceeding, despite the procedural bars already discussed.

¶ 28. This request is appropriate. "[G]enerally, ineffective-assistance-of-counsel claims are more appropriately brought during [postconviction] proceedings." Dartez v. State , 177 So.3d 420, 422-23 (¶ 18) (Miss. 2015) (citing Archer v. State , 986 So.2d 951, 955 (¶¶ 15-16) (Miss. 2008) ). The supreme court has explained that

[a]n appellate court is limited to the trial-court record in its review of the claim(s), and there may be instances in which insufficient evidence and/or information exists within the record to address the claim adequately. In such a case, the appropriate procedure is to deny relief, preserving the defendant's right to argue the issue through a petition for [postconviction] relief (PCR).

Id. at 423 (¶ 18) (citation omitted). Here, the record on appeal is insufficient to review the claim. Thus, Pryor may seek the Mississippi Supreme Court's leave to raise this claim in a PCR motion. See Miss. Code Ann. § 99-39-7 (Rev. 2015).

V. Did the circuit court err when it denied Pryor's motion to suppress evidence?

¶ 29. In determining whether a circuit court erred in denying a motion to suppress evidence, we apply an abuse-of-discretion standard. Mariner Health Care Inc. v. Estate of Edwards ex rel. Turner , 964 So.2d 1138, 1149 (¶ 25) (Miss. 2007) (citing Whitten v. Cox , 799 So.2d 1, 13 (¶ 27) (Miss. 2000) ). Under this standard, we will affirm the circuit court's decision unless there is a definite and firm conviction that it committed a clear error of judgment in the conclusion it reached upon weighing relevant factors. Plaxico v. Michael , 735 So.2d 1036, 1039 (¶ 11) (Miss. 1999) (citing Cooper v. State Farm Fire & Cas. Co. , 568 So.2d 687, 692 (Miss. 1990) ).

¶ 30. Pryor asserts that the circuit court erred in its denial because: (1) the court neither accounted for federal regulations that exempt Schedule II controlled substances nor considered Mississippi caselaw that allegedly exempts L-isomer produced by Vicks VapoInhalers; and (2) the State acted in bad faith when it allowed the lab to destroy Pryor's blood sample.

¶ 31. Pryor relies on Crosswhite v. State , 732 So.2d 856 (Miss. 1998), in his assertion that our caselaw exempts L-isomer methamphetamine in Vicks VapoInhalers. But he misses an important distinction: The court in Crosswhite acknowledged that L-isomer methamphetamine, when contained in Vicks VapoInhalers, is exempted from the controlled substances list. Id. at 859 (¶ 7). However, Crosswhite held that when the methamphetamine was reduced from its presence in the Vicks VapoInhalers into another form, the L-isomer of methamphetamine is not exempted from the controlled substances list. Id. at 860 (¶ 10). Here, Pryor had no Vicks VapoInhalers in his possession.

¶ 32. Thus, we find that the circuit court appropriately reviewed the applicable statute and applicable caselaw. It determined that there is no differentiation between L-isomer and D-isomer of methamphetamine when considering the statute upon which the conviction is based. We agree.

¶ 33. Pryor also asserts that the State acted in bad faith when it allowed the lab to destroy his blood sample. But we find that the circuit court appropriately applied Childs v. State , 133 So.3d 348, 349-51 (¶¶ 10-11) (Miss. 2013). The circuit court determined that it was not "clear that [Pryor's blood sample] had exculpatory value at the time the report was rendered in the six months notice was given." The State even admitted that it did not know about the isomeric differentiation, and, if it did, then it would have tested his blood sample further. We also see no differentiation in whether the methamphetamine was one isomer or another or both as the crime on which the verdict was based merely requires that a substance has impaired his ability to drive. We affirm the circuit court's judgment.

CONCLUSION

¶ 34. We find that the evidence was sufficient to support the guilty verdict, the jury was properly instructed on the elements of the charge of aggravated DUI, the circuit court did not err when it allowed an accident reconstructionist to testify, and the circuit court did not err when it denied his motion to suppress evidence. We do, however, preserve his ineffective-assistance-of-counsel claim. Thus, we affirm the circuit court's judgment.

¶ 35. AFFIRMED.

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

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

¶ 36. While I concur with the majority's determination of the merits, I cannot agree with the majority's decision to preserve the issue of ineffective assistance of counsel with respect to counsel's failure to object to the accident reconstructionist's testimony. As the majority found, admission of that testimony was "at best ... harmless error"; thus, Pryor cannot demonstrate actual prejudice under the second prong of Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 37. Accordingly, I would affirm the judgment, but deny Pryor's request to preserve his right to bring an ineffective-assistance-of-counsel claim with regard to counsel's failure to object to the testimony by the accident reconstructionist.

      See infra ¶ 21.

      See supra ¶ 11.

      Under Strickland , a defendant "must show that counsel's performance was deficient, and ... that the deficient performance prejudiced the defense." Walker v. State , 863 So.2d 1, 11, 16 (¶¶ 15, 39) (Miss. 2003) (Because the granting of a jury instruction was "at most harmless error," the defendant could not "demonstrate actual prejudice" under Strickland .)


author: FAIR, J., FOR THE COURT:

text:
    David NICHOLS a/k/a David Sydney Nichols a/k/a David Sidney Nichols, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-01292-COA
    Court of Appeals of Mississippi.
    November 6, 2018 Rehearing Denied January 15, 2019
    ATTORNEY FOR APPELLANT: DAVID NICHOLS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. In 2004, David Nichols pleaded guilty to two counts of murder and was sentenced to serve two life sentences in the custody of the Mississippi Department of Corrections. Three years later, he filed his first motion for post-conviction relief (PCR), which was denied. He appealed, and the denial was affirmed in Nichols v. State , 994 So.2d 236 (Miss. Ct. App. 2008). In 2011, he filed a second unsuccessful PCR motion. Nichols v. State , 120 So.3d 433 (Miss. Ct. App. 2013).

¶ 2. Nichols filed a third PCR motion in 2016, which was denied and is now the subject of this appeal. Finding no error, we affirm.

FACTS

¶ 3. Nichols styled his third action as a motion for recusal/change of venue because he alleged wrongdoing by the State and because the judge assigned to rule on his motion was an assistant district attorney when Nichols was prosecuted. Nichols further claimed that false evidence was used to obtain a conviction, that his guilty plea was involuntarily entered, and that his counsel was ineffective. He also requested an evidentiary hearing.

¶ 4. As the assigned judge stated in his recusal order, he "did not participate in the prosecution, conviction[,] or sentencing of [Nichols] in any way or capacity during his employment with the Office of the District Attorney." Nor was he the original trial judge, though he had dismissed Nichols's second PCR as successive and time-barred. In any event, he recused himself in this case "out of an abundance of caution and in order to avoid any appearance of impropriety[.]" After the case was reassigned, the replacement circuit judge dismissed Nichols's motion-treating it as a third PCR motion-without an evidentiary hearing.

STANDARD OF REVIEW

¶ 5. A circuit court may summarily dismiss a PCR motion without an evidentiary hearing "[i]f it plainly appears from the face of the motion, any annexed exhibits[,] and the prior proceedings in the case that the movant is not entitled to any relief ...." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). And "this [C]ourt will affirm the summary dismissal of a PCR motion [unless the appellant shows] a claim is procedurally alive substantially showing the denial of a state or federal right." Pinkney v. State , 192 So.3d 337, 341-42 (¶ 13) (Miss. Ct. App. 2015) (internal quotation marks omitted).

¶ 6. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young v. State , 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999).

DISCUSSION

¶ 7. At the outset, we note that this is Nichols's third PCR motion. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), the dismissal of a PCR motion is a final judgment and acts as a bar to a second, or successive, motion. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). "Essentially, [a movant] is granted one bite at the apple when requesting post-conviction relief." Dobbs v. State , 18 So.3d 295, 298 (¶ 9) (Miss. Ct. App. 2009).

¶ 8. Since successive motions are not allowed, "[a] person who requests post-conviction relief is obligated to place before the court all claims known to him and/or of which he should have had knowledge." Salter v. State , 184 So.3d 944, 951 (¶ 24) (Miss. Ct. App. 2015). "The failure to do so results in a loss of his claims for a second or successive petition." Id. Nichols's third PCR motion raises many of the same issues as his first. Because the issues in Nichols's third PCR motion could have been raised in his first (or second) PCR motion, the circuit judge properly treated the third PCR motion as a successive writ.

¶ 9. The UPCCRA also states that, in the instance of a guilty plea, a PCR motion shall be made within three years after the entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2). Nichols filed his third PCR motion on October 18, 2016-approximately twelve and a half years after he pleaded guilty on April 14, 2004. So his motion is also time-barred.

¶ 10. We acknowledge that "errors affecting fundamental constitutional rights are excepted from the procedural bars." See Rowland v. State , 42 So.3d 503, 507 (¶ 12) (Miss. 2010). "Only four fundamental-rights exceptions have been expressly found to survive procedural bars: (1) the right against double jeopardy; (2) the right to be free from an illegal sentence; (3) the right to due process at sentencing; and (4) the right not to be subject to ex post facto laws." Carter v. State , 203 So.3d 730, 731 (¶ 7) (Miss. Ct. App. 2016) (internal quotation marks omitted). The Mississippi Supreme Court has clarified that "merely asserting a constitutional-right violation is insufficient to overcome the procedural bars." Fluker v. State , 170 So.3d 471, 475 (¶ 11) (Miss. 2015). Additionally, "there must at least appear to be some basis for the truth of the claim of a fundamental-constitutional-rights violation." Evans v. State , 115 So.3d 879, 881 (¶ 3) (Miss. Ct. App. 2013) (internal quotation marks omitted). Nichols's claims do not implicate any fundamental-constitutional-rights violations.

¶ 11. Finally, although Nichols has attached several new documents to his appellant's brief, these documents were not presented to the circuit court during the post-conviction proceedings. For that reason, this Court does not consider them. See Hampton v. State, 148 So.3d 1038, 1042 (¶ 11) (Miss. Ct. App. 2013).

¶ 12. AFFIRMED.

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

      In his first PCR motion, Nichols claimed that: "(1) no factual basis for his plea was established; (2) his counsel was ineffective; (3) the trial court erred in failing to conduct an evidentiary hearing; and (4) the cumulative errors require reversal." Nichols , 994 So.2d at 237 (¶ 2).


author: GREENLEE, J., FOR THE COURT:

text:
    Darryl METCALF a/k/a Peanut, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01083-COA
    Court of Appeals of Mississippi.
    February 12, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN
    EN BANC.
   GREENLEE, J., FOR THE COURT:

¶1. Darryl Metcalf was found guilty of two counts of sexual battery, attempted sexual battery, and fondling. The Coahoma County Circuit Court sentenced him to fifteen years for fondling and twenty years for each of the other convictions. Because all of the sentences were set to run concurrently, the circuit court effectively sentenced Metcalf to twenty years in the custody of the Mississippi Department of Corrections. Metcalf appeals. His appointed counsel argues that the circuit court erred by (1) excluding one of Metcalf's witnesses and (2) giving jury instructions that constructively amended two counts in the indictment. Counsel also argues that Metcalf's trial counsel was ineffective. Metcalf has filed a supplemental pro se brief. After thorough review of the issues before us, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. This case stems from Metcalf's contact with M.W., who was four years old during the events that led to Metcalf's conviction. M.W. lived with his mother, Deborah, and two siblings. Metcalf was twenty-four, and his family called him "Peanut." He lived with M.W.'s great-grandmother, Maggie, who cared for M.W. while his mother had to work.

¶3. On May 15, 2008, Deborah was preparing to go celebrate M.W.'s birthday when someone called from Maggie's apartment and asked Deborah to stop and pick up M.W.'s gifts. When M.W. learned that they would be stopping by Maggie's apartment, M.W. shut himself in his bedroom. A short time later, Deborah found M.W. crying in the corner. M.W. then told Deborah that "Peanut was messing" with him. According to Deborah, M.W. then elaborated that Peanut "sucked his penis, bit his penis, tried to put his penis in [M.W.'s] mouth ... and was messing with his butt." After relaying M.W.'s revelation to Maggie, Deborah went to the police department and filed a report.

¶4. Authorities arranged Sarah Ward's forensic interview of M.W. Ward later reported that "M.W. did not provide any information or statements to corroborate the suspicion that he may have been sexually abused." Through her report, Ward recommended that "M.W. participate in psychotherapy for further assessment of possible sexual abuse." M.W. was referred to Shirley Long, a therapist at Region One Mental Health Center in Clarksdale, Mississippi. Long conducted twelve sessions with M.W. during the course of nearly a year. According to Long, M.W. told her that "Peanut touched his ears, nose and mouth, and put [M.W.'s] 'ding-a-ling' in Peanut's mouth until it hurt," "Peanut tried to make [M.W.] put Peanut's penis in his mouth, but [M.W.] wouldn't open his mouth," Metcalf inserted an object into M.W.'s anus, and Peanut "took a gun from under the TV and put it to his head and told him he would kill him if he told anybody what he had done to him."

¶5. Metcalf was indicted on December 7, 2009, and charged with two counts of sexual battery, one count of attempted sexual battery, and one count of fondling. The indictment originally alleged that the offenses occurred between January and March 2008. Metcalf's trial was delayed for a significant period after the defense successfully moved for a mental competency evaluation.

¶6. In November 2015, the prosecution moved to amend the indictment to allege that the offenses occurred between January 1, 2008, and May 15, 2008. As the prosecution noted, the "date of disclosure was May 15, 2008 ... [, and] all discovery tendered to the defense contemplates this date as the day when M.W.'s mother first became aware of the sexual abuse allegedly committed by" Metcalf. On January 14, 2016, the circuit court granted the prosecution's motion over the defense's objection. During the same hearing, the circuit court conducted a competency hearing. Based on testimony from Dr. Amanda Gugliano and Dr. Reb McMichael, the circuit court held that Metcalf was competent to stand trial.

¶7. Additionally, defense counsel noted that he was unable to find Ward, who no longer worked at the Family Crisis Center where she interviewed M.W. Defense counsel announced that he would try to introduce her report into evidence if he could not find Ward, and the prosecution noted the procedural difficulty involved with defense counsel's plan. The circuit court ultimately took the parties' positions under advisement.

¶8. Five days later, the defense requested a continuance so that it could continue looking for Ward. The prosecution objected, noting the various delays already incurred, including the setback caused by Metcalf's competency hearing. The circuit court granted the continuance and appointed an investigator to help defense counsel find Ward.

¶9. On May 18, 2016, the parties finally convened for Metcalf's trial. Before the prosecution began its case-in-chief, the circuit court heard the prosecution's motion to introduce M.W.'s testimony through Deborah and Long. After hearing their proffered testimonies, the circuit court granted the prosecution's motion.

¶10. The prosecution first called Assistant Police Chief Robbie Linley, of the Clarksdale Police Department, who, in 2008, was a captain supervisor of the department's Investigative Services Division. Chief Linley testified that he took over the investigation of Metcalf's case from another investigator who resigned. He further testified that during the investigation, it was established that Metcalf went by the nickname "Peanut," and that at the time of the crime, Metcalf was twenty-four years old. Chief Linley stated that in 2008, M.W. was four years old. Chief Linley also provided an in-court identification of Metcalf.

¶11. Next, Investigator Myette Dawson testified that he had been employed with the Clarksdale Police Department in 2008 and was the original investigator of Metcalf's case. Investigator Dawson testified that he spoke with Deborah and made an initial report concerning the abuse allegations on May 16, 2008. He said that after speaking with Deborah, he referred M.W. for a forensic interview at the Family Crisis Center. Investigator Dawson confirmed M.W.'s and Metcalf's ages at the time of the incident.

¶12. The State next called Deborah to testify. She testified about M.W.'s disclosure of sexual abuse, including that M.W.

told her that "Peanut" "sucked his penis, bit his penis, tried to put his penis in [M.W.'s] mouth ... and was messing with his butt." Deborah also testified that M.W. had been negatively affected by the event, and often wet his bed and bit his arm. She identified Metcalf as the defendant.

¶13. Long testified about her treatment of M.W. and the disclosures M.W. made during therapy sessions, including that "Peanut" touched M.W.'s ears, nose, and mouth; put M.W.'s penis in his mouth; inserted an object into M.W.'s anus; and held a gun to M.W.'s head and threatened to kill M.W. if he told anyone about these actions. Long further testified that M.W.'s version of events remained consistent over his twelve-session treatment.

¶14. M.W. was the last witness to testify for the State. He testified that he was twelve years old and was born in May 2004. M.W. identified Metcalf as the person who molested him and whom he knew as "Peanut." M.W. testified that Metcalf molested him when he was four years old at his grandmother's house in Willow Park. According to M.W., he was exiting the restroom when Metcalf grabbed him and took him to a back room. Metcalf put his fingers to M.W.'s lips, and tried to make him suck his penis. M.W. said that when he refused, Metcalf pulled down his pants and bit his penis. M.W. also testified that Metcalf put a gun to his head and said that if he told anyone what had happened, Metcalf would shoot him. M.W. could not say exactly what Metcalf inserted into his anus because he was turned the other way.

¶15. Following M.W.'s testimony, the prosecution rested. Metcalf moved for a directed verdict, which the circuit court denied. Then, trial was adjourned.

¶16. On the second morning of trial, May 19, 2016, the parties met in chambers to discuss a matter brought by the defense. During the meeting in chambers, the defense informed the circuit court that Ward had contacted him on the previous evening and said she would be available to testify the next day, on May 20. Defense asked the circuit court to delay trial until then. After hearing arguments from both parties, the trial court ultimately excluded Ward from testifying because Ward was not properly subpoenaed and was therefore not subject to the circuit court's authority, and because Ward's name was neither included on the witness list nor disclosed during voir dire. Further, the circuit court noted that it had appointed the defense an investigator at the State's expense on January 27, 2017, to assist the defense's location of Ward, and that after hearing from the defense, the circuit court did not "believe a diligent effort was made to locate Ms. Ward."

¶17. Next, the defense moved to admit statements Deborah made to Long during M.W.'s initial intake; namely, that M.W. did not disclose sexual abuse during his forensic interview. After hearing arguments from counsel, the circuit court ruled that the statements could be admitted pursuant to Mississippi Rule of Evidence 803(4) as statements made for the purpose of medical diagnosis or treatment.

¶18. The defense then proceeded with its case-in-chief, recalling Long to testify. When asked what information she received from Deborah regarding M.W.'s forensic interview, Long testified that Deborah told her that M.W. did not disclose any abuse to Ward because Ward referred to Metcalf by his given name, rather than "Peanut," the name M.W. knew him by.

¶19. Metcalf testified in his own defense. Metcalf categorically denied committing the allegations of abuse against him. During cross-examination, he admitted that his family and M.W. referred to him as "Peanut."

¶20. After the defense rested, it renewed its motion for a directed verdict, which the circuit court denied. Outside the presence of the jury, the defense gave a proffer of Ward's forensic interview of M.W., which was marked as Exhibit 1.

¶21. As previously mentioned, the jury found Metcalf guilty of both counts of sexual battery, attempted sexual battery, and fondling. The circuit court denied Metcalf's motion for a judgment notwithstanding the verdict (JNOV) or in the alternative, a motion for a new trial. Metcalf has timely appealed.

ANALYSIS

I. Sarah Ward

¶22. "Trial judges have wide latitude in deciding whether to grant continuances, and that decision is left to the sound discretion of the trial judge." Miles v. State , 249 So.3d 362, 368 (¶ 32) (Miss. 2018). "Denial of a continuance is not reversible unless manifest injustice appears to have resulted from the denial." Id. Here, the circuit court's denial of the request to continue trial was not an abuse of discretion, and no manifest injustice resulted from the denial of the postponement.

¶23. Mississippi Code Annotated section 99-15-29 (Rev. 2015) governs whether counsel is entitled to a continuance due to an absent witness. Section 99-15-29 requires that counsel file an affidavit setting forth, among other things, that he has "used due diligence to procure ... the presence of the absent witness ... stating in what such diligence consists, and that the continuance is not sought for delay only, but that justice may be done." "Embraced therein is the requirement that counsel has made a timely effort to place the absent witness under a subpoena." Triplett v. State , 666 So.2d 1356, 1361 (Miss. 1995) ; see also Pinson v. State , 518 So.2d 1220, 1222 (Miss. 1988) ; Watson v. State , 465 So.2d 1025, 1030 (Miss. 1985). "Failure of counsel to issue subpoenas even for friendly, favorable witnesses is perilous, because if for some reason the witness fails to appear, a pre-requisite for continuance is that he or she is either under process or a reasonable effort has been made to serve him or her with a subpoena." Triplett , 666 So.2d at 1361.

¶24. In McClendon v. State , 335 So.2d 887, 889 (Miss. 1976), the Mississippi Supreme Court affirmed the denial of the defense's ore tenus motion for a delay due to an unsubpoenaed absent witness where there was no formal motion for a continuance or postponement as required by statute. The McClendon court stated:

As noted in Black's Law Dictionary 1250 (4th ed. 1951), "pleading was anciently carried on ore tenus, at the bar of the court." Exigencies which arise during the course of present day court trials are often rightly met with such pleadings, but the substance and content of such pleadings required by a statute cannot be ignored. Here, had the ore tenus motion (not conforming with the statutory requirements) been upheld, appellant would have been allowed to accomplish with such a deficient informal pleading what this Court has repeatedly held could not be done except by a written sworn motion.

McClendon , 335 So.2d at 889 ; see also Gatlin v. State , 219 Miss. 167, 171-72, 68 So.2d 291, 292 (1953) ; Douglas v. State , 212 Miss. 176, 180-81, 54 So.2d 254, 255-56 (1951) (affirming convictions where there was no formal motion for a continuance or postponement as required by statute).

¶25. The record reveals that the defense made an unsworn motion ore tenus to postpone trial until the next day. The circuit court declined to delay trial for several reasons: Ward was not properly served with a subpoena; the defense was not diligent in its efforts to locate Ward; and Ward's name was stricken from the witness list. Under these facts, we cannot say the circuit court abused its discretion in denying the motion. Further, there is no indication that Metcalf suffered a manifest injustice resulting from the denial of a continuance because the substance of Ward's report-that M.W. did not report any instance of sexual abuse during his forensic intake interview-was covered in Long's testimony. This issue is without merit.

II. Variance Between Indictment and Jury Instruction 7

¶26. On appeal, Metcalf claims for the first time that the circuit court constructively amended Counts One and Four of the indictment against him when it gave Jury Instruction 7, an elements-instruction that addressed each count in the indictment.

A. Count One: Sexual Battery

¶27. Count One charged Metcalf with violating Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014) by sexually penetrating M.W., who was under fourteen years old, by inserting his penis into M.W.'s anal opening. Jury Instruction 7 allowed the jury to convict Metcalf of sexual battery upon a finding that Metcalf inserted his "penis and/or object" into M.W.'s anal opening. According to Metcalf, the inclusion of the words "and/or object" broadened the grounds for conviction and lessened the prosecution's burden of proof.

¶28. Metcalf did not object to Instruction 7 as constructively amending Count One; in result, he has waived this issue. See Faulkner v. State , 109 So.3d 142, 146 (¶ 12) (Miss. Ct. App. 2013) (explaining that failure to object to a variance between an indictment and a jury instruction renders the issue procedurally barred on appeal). Accordingly, we can review Metcalf's claim only for plain error. See Young v. State , 194 So.3d 904, 910 (¶ 20) (Miss. Ct. App. 2016).

¶29. In this instance, the instruction was not erroneous, let alone plainly erroneous. As the State points out, this Court has held that "the particular method of achieving sexual penetration is not an element of the offense of sexual battery." Id. at (¶ 21) (internal quotation marks omitted). " 'Sexual penetration' includes cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person's body by any part of a person's body, and insertion of any object into the genital or anal openings of another person's body." Miss. Code Ann. § 97-3-97(a) (Rev. 2014). The jury unanimously convicted Metcalf of sexually penetrating M.W., which is the essence of the offense of sexual battery. See Young , 194 So.3d at 910 (¶ 21). Accordingly, Metcalf's challenge to this portion of Jury Instruction 7 is without merit.

B. Count Four: Fondling

¶30. Count Four charged Metcalf with violating Mississippi Code Annotated section 97-5-23 (Rev. 2014) by touching or rubbing M.W.'s private parts with his hands for the purpose of gratifying his lust or indulging in his sexual desires. Jury Instruction 7 did not reference M.W.'s private parts; it allowed the jury to convict Metcalf of fondling if it found that Metcalf handled, touched, or rubbed M.W. with his hands, any part of his body, or with any object. Metcalf argues Jury Instruction 7 broadened the grounds for conviction by allowing the jury to convict Metcalf "for touching [M.W.]'s ear or face with a hand."

¶31. The record reveals that the language in Jury Instruction 7 pertaining to Count Four was revised at Metcalf's request.

The relevant portion of the prosecution's proposed jury instruction allowed the jury to convict on Count Four if it found Metcalf "handle[d], touch[ed] or rub[bed] with his hands the private parts of M.W. ..." During the jury instruction conference, defense counsel objected to the Count Four in the instruction and recommended that it track the statute. The trial court acquiesced:

[DEFENSE] Yeah. We were objecting to S1-A, Count IV. I believe that based on the language contained in the instruction, it does not set out [ ] an offense under the law.
....
[COURT] Mr. Tisdell, what is your recommendation, that it track the statute?
[DEFENSE] Yes, ma'am.
....
[COURT] Okay. So we're going to ... track the statute, "handle, touch or rub with hands any part of his body or any member of the body with an object, a male child under the age of 14 years."
[DEFENSE] (INDICATED BY NODDING HEAD.)

¶32. "It is axiomatic that a defendant cannot complain on appeal of alleged errors invited or induced by himself." Thomas v. State , 249 So.3d 331, 347 (¶ 55) (Miss. 2018) (internal quotation omitted); see also Harris v. State , 861 So.2d 1003, 1015 (¶ 24) (Miss. 2003) ; Buford v. State , 372 So.2d 254, 256 (Miss. 1979) (applying the invited-error doctrine to jury instructions). We decline to find error where the defendant objects to an elements instruction, succeeds on his objection, and then complains about the revision he proposed. The invited-error doctrine prohibits us from considering this issue; thus, we affirm.

III. Ineffective Assistance of Counsel

¶33. Metcalf argues that his trial counsel was constitutionally ineffective for "failing to secure Ward['s] presence at trial and failing to lay the foundation to introduce Ward's report to impeach Deborah and [M.W.]."

¶34. "A claim of ineffective assistance of counsel requires proof that counsel's performance was objectively deficient and that the defendant suffered prejudice as a result." Worth v. State , 223 So.3d 844, 849 (¶ 17) (Miss. Ct. App. 2017) (emphasis added) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). "Under Strickland 's first prong, the defendant must overcome a strong but rebuttable presumption that counsel's performance falls within the wide range of reasonable professional assistance." Id. "To overcome this presumption, '[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Smiley v. State , 815 So.2d 1140, 1146-47 (¶ 25) (Miss. 2002) (quoting Schmitt v. State , 560 So.2d 148, 154 (Miss. 1990) ).

¶35. While this Court may consider the merits of a claim for ineffective assistance of counsel raised for the first time on direct appeal, it is unusual to do so because "we are limited to the trial court record in our review of the claim and there is usually insufficient evidence within the record to evaluate the claim." Ragland v. State , 50 So.3d 1041, 1044 (¶ 8) (Miss. Ct. App. 2010). The appropriate conclusion is usually "to deny relief, preserving the defendant's right to argue the same issue through a petition for post-conviction relief." Aguilar v. State , 847 So.2d 871, 878 (¶ 17) (Miss. Ct. App. 2002) (citing Read v. State , 430 So.2d 832, 837 (Miss. 1983) ). We will reach the merits on an ineffective-assistance claim only in instances 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." Wilcher v. State , 863 So.2d 776, 825 (¶ 171) (Miss. 2003).

¶36. In this case, the record does not affirmatively show ineffectiveness of constitutional dimensions, and the State does not stipulate that the record is adequate to review this issue. We therefore dismiss Metcalf's ineffective-assistance-of-counsel claim without prejudice so that he may pursue the claim in a properly filed motion for post-conviction relief. See Miss. Code Ann. § 99-39-7 (Rev. 2015).

IV. Metcalf's Pro Se Supplemental Brief

¶37. Metcalf's brief suggests that he intends to raise one "Supplemental Issue" that he describes as follows: "Ask for dismissal/A perceived discovery 'violation.' " Even after carefully reviewing Metcalf's pro se supplemental brief, it is exceedingly difficult to understand his argument.

¶38. Where an appellant proceeds pro se, this Court takes that fact into account so that any meritorious claim is not lost due to inartful drafting. Gatewood v. State , 909 So.2d 754, 756 (¶ 4) (Miss. Ct. App. 2005). "However, we are also mindful that pro se parties should be held to the same rules of procedure and substantive law as represented parties." Bessent v. Clark , 974 So.2d 928, 932 (¶ 14) (Miss. Ct. App. 2007).

¶39. The State interprets Metcalf's brief as though he raised two new issues: (1) whether Metcalf's trial counsel was constitutionally ineffective for failing to object to the amendment of his indictment and (2) whether the trial court erred by failing to conduct a hearing pursuant to Rule 803(25). In doing our best to understand Metcalf's meaning, we agree that his brief raised these issues. We further note that in his supplemental reply brief, Metcalf did not disagree with the State's framing of his issues.

A. Ineffective Assistance

¶40. First, Metcalf seems to claim that his trial counsel was constitutionally ineffective for failing to object to the amendment of his indictment. Because a review of the record reveals that Metcalf's counsel did in fact object to the indictment's amendment, we find Metcalf's claim is without merit.

¶41. On November 17, 2016, the State filed a motion to amend the indictment pursuant to Rule 7.09 of the Uniform Rules of Circuit and County Court Practice to correct the dates of the crime. As it originally stood, the indictment alleged that the crimes occurred on or between January 2008 and March 2008. The State moved to amend the indictment to allege that the crimes occurred on or between January 1, 2008 and May 15, 2008, as "the date of disclosure was May 15, 2008 ... [, and] all discovery tendered to the defense contemplates this date as the day when M.W.'s mother first became aware of the sexual abuse ...." The circuit court heard arguments on the prosecution's motion on January 14, 2016. During the hearing, Metcalf's trial counsel objected to and argued against the State's motion to amend the indictment. The circuit court ultimately allowed the amendment, finding it was one of form rather than substance. In light of trial counsel's objection, Metcalf's claim fails under Strickland . See Strickland , 466 U.S. at 687, 104 S.Ct. 2052.

B. 803(25) Hearing

¶42. Hearsay is inadmissible unless the law provides an exception. M.R.E. 802 ; see M.R.E. 803 (exceptions that apply regardless of whether the declarant is available to testify); M.R.E. 804 (exceptions that apply only when declarant is "unavailable" to testify). This issue concerns Rule 803(25)'s exception for "statement(s) made by a child of tender years describing any act of sexual contact with or by another[.]" M.R.E. 803(25). Under Rule 803(25), such statements are admissible if:

(A) the court-after a hearing outside the jury's presence-determines that the statement's time, content, and circumstances provide substantial indicia of reliability; and
(B) the child either:
(i) testifies; or
(ii) is unavailable as a witness, and other evidence corroborates the act.

¶43. Metcalf argues that "the trial court erred in allowing [Long][,] a forensic psychologist[,] to testify ... as the trial court made no findings as to the reliability of the hearsay statement and did not conduct a hearing outside the presence of the jury as required by" Rule 803(25).

¶44. We review the admission of evidence for abuse of discretion. Palmer v. State , 986 So.2d 328, 331 (¶ 12) (Miss. Ct. App. 2007). Contrary to Metcalf's assertion, the circuit court held a hearing outside the presence of the jury and made detailed on-the-record findings concerning M.W.'s statements to Long.

¶45. On May 18, 2016, the circuit court conducted a hearing outside the presence of the jury concerning the State's "Motion to Offer MRE 803(25) Evidence." During this time, the circuit court heard proffered testimony from Long, the therapist who began treating M.W. in July 2008, as well as M.W.'s mother, Deborah. After receiving the testimony and hearing argument from counsel, the circuit court found that M.W., who was four years old at the time he made statements to Long and Deborah concerning sexual abuse, was a child of tender years. In her on-the-record finding, the trial judge stated:

Based on Ms. Long's educational and professional background, the court finds that she is a credible witness.
She testified that she first saw M.W. ... in July of 2008, for 11 sessions; and with the initial session that was for 12 sessions. The amended indictment alleges the dates of the sexual battery to have occurred between January 2008 to May 2008.
And with M.W. first consulting with Ms. Long in July, the Court finds that his conversations with her were in close proximity to the alleged events.
Ms. Long testified that throughout the 12 sessions with M.W. ... his testimony was consistent and did not change, and she believes M.W. ... was a credible witness. And as a trained professional, the Court finds that she can make that determination.
She also indicated that she did not know of any motive that the child would have had to be untruthful.
When asked if M.W. ... was prompted ... to tell of the alleged sexual abuse, [Long] simply stated that she said to the child, "Tell me what happened," and the child commenced to tell what happened.
Based on this testimony there is absolutely no suggestive technique used, whatsoever, to elicit the allegations from M.W. ... and, therefore, the Court finds that the events, as related to Ms. Long by M.W. ... are reliable, and she will be able to testify as to these events in court.
As to [Deborah], the Court finds that M.W.'s initial conversation with his mother regarding the alleged abuse was a spontaneous one. They were preparing for a birthday party, and when he learned that he had to return to the location of the alleged events, he started to exhibit strange behavior by locking himself into a room.
It was not until the mother managed to kick the door in that the child revealed to her why he did not wish to go to the location.
Based on the testimony and all of the events surrounding it as related through the testimony, these accounts ... [are] more probable to be true.
At the time he made the statements, it was close to the alleged abuse[.] The amended indictment states the date of the abuse to be January 2008 until May of 2008, and it was ... [on] May 15th when M.W. ... first told these events to his mother. And, because of the close proximity in time, the Court finds that his recollection is probably accurate.
There is no motive as to why M.W. ... would lie about this occurrence. And the way in which M.W. ... revealed these episodes to his mother indicates that they are not concocted or fabricated.

¶46. As the trial judge conducted a hearing outside the jury's presence and made detailed findings on the record in accordance with Rule 803(25), we find this issue is without merit.

CONCLUSION

¶47. The circuit court committed no reversible error in its rulings below. Therefore, we affirm Metcalf's convictions and sentences. We also preserve his right to raise his ineffective-assistance-of-counsel claim regarding Ward's presence and the use of her report for cross-examination purposes in a properly filed motion for post-conviction relief. See Knight v. State , 72 So.3d 1056, 1062 (¶ 22) (Miss. 2011).

¶48. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR.

      To protect the identity of the minor child, we substitute initials for his name.

      According to the State, Metcalf also claimed that the trial court should have allowed Ward to testify, and Jury Instruction 7 constructively amended Counts One and Four of Metcalf's indictment. The State is correct that Metcalf was prohibited from reiterating issues that his appointed appellate counsel had already raised. See M.R.A.P. 28(b) ("An appellant in a criminal appeal may file a pro se supplemental brief ... address[ing] issues not raised by counsel ...."). (Emphasis added). Having fully addressed these issues already, we decline to revisit them.