author: GREENLEE, J., FOR THE COURT:

text:
    Rickarius KIMBLE a/k/a Richarius Kimble, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00071-COA
    Court of Appeals of Mississippi.
    September 18, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD, Jackson
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. A Bolivar County jury found Rickarius Kimble guilty of rape. Kimble was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended and five years of supervised probation. Kimble appeals, challenging the sufficiency and weight of the evidence and asserting that he received ineffective assistance of counsel. We affirm Kimble's conviction and sentence.

PROCEDURAL BACKGROUND

¶ 2. On August 29, 2016, a Bolivar County grand jury indicted Kimble for Count One, burglary, in violation of Mississippi Code Annotated section 97-17-23 (Rev. 2014), and Count Two, forcible sexual intercourse in violation of Mississippi Code Annotated section 97-3-65(4)(a) (Rev. 2014). Trial commenced on October 10, 2016. After the State's case-in-chief, Kimble moved for a directed verdict, which the trial court denied. At the close of all evidence, Kimble's counsel renewed his motion and requested a peremptory instruction directing a verdict for the defendant for both burglary and rape. The trial court denied the instruction as to both counts. Following trial, the jury found Kimble not guilty of burglary, but guilty of rape. On appeal, Kimble argues that the jury's verdict as to rape was contrary to the sufficiency and weight of the evidence.

FACTS

¶ 3. In September 2015, Lakeisha Adams was living in a trailer in Benoit, Mississippi, with her son and her boyfriend, Jeremy Franklin. On the night of September 4, Franklin was working out of town, and Adams returned home with her son at approximately 10 p.m. When Adams arrived at her front door, she found herself locked out; her only key went to the doorknob, and someone had locked the deadbolt. Suspecting a break-in, Adams called the police and her stepfather, Sidney Taylor. Taylor arrived first and walked around the trailer, finding Adams's back door unlocked and slightly open. When the police arrived, Adams reported the break-in.

¶ 4. Before she went to bed that night, Adams made sure that all of the doors were locked. She also placed a pair of scissors in her son's bedroom window and a chair under the front doorknob to prevent anyone from entering the trailer. Adams testified that after she fell asleep, she heard a noise, jumped out of bed, and grabbed the loaded gun she kept in her bedroom. Before she was able to look for a possible intruder, Kimble attacked her.

¶ 5. Adams said that Kimble tackled her, grabbed her arm, took her gun away from her, and knocked her through the television stand in her bedroom. Then, he grabbed her around the throat and dragged her to the living room. Adams testified that in the living room, Kimble pointed out that he was wearing all black clothes and blue hospital gloves. Kimble stated, "B****, I came here to do this," and he told Adams to take her underwear off. Adams testified that she was only wearing a shirt and underwear at the time and that she eventually pulled her underwear down after Kimble grabbed her by the hair and pushed her face down on the living-room couch. Adams further testified that she tried to stall for time by asking Kimble whether he had a condom. Kimble produced a condom and made her put it on him. Then, Kimble made her lean over the couch, and he put his penis inside her vagina and allegedly raped her. Adams testified that as Kimble was raping her, the condom came off and Kimble had her put it back on. Kimble resumed the alleged assault, but his penis kept slipping out, so he made Adams lie on her back and forcibly performed oral sex on her. He then made her face the couch but realized the condom had broken. Adams said Kimble laughed and opened some paper towels and tissues, which he used to wipe himself with. He then handed Adams a paper towel, which she wiped herself with.

¶ 6. Adams said that after Kimble raped her, he sat on her furniture and told her, "[N]o face, no case, but you saw my face, so I [have] to kill you." He said "[I]t's either me or ... you" and "I ain't going to jail." Kimble asked Adams to give him bullets, and when Adams responded that she did not have any, Kimble said "B****, if I go in here and there's no bullets in the drawer, I'm gonna kill you." Adams said Kimble never checked the drawer for bullets.

¶ 7. Kimble supposedly told Adams that a person called "Gingerbread" said a person called Franklin owed a person called "Sambo" money, and Kimble had been sent to kill her. Adams testified that she knew a "Gingerbread" but not a "Sambo." Adams said she offered Kimble money, but he stated, "I don't want your money"; "I supposed to did this s**** and been gone." Kimble then took Adams's phone and called someone. He told Adams the person he spoke with "told him to leave and come back the next day and burn [them] up." Adams asked Kimble if he was going to come back, but he said, "No." Adams said Kimble touched a can of roach spray before he left.

¶ 8. Adams testified that after Kimble left, she got her child, looked for her keys, went to her mother and stepfather's apartment, and called Taylor to open the door. Adams stated that during the assault, her son was in her bedroom screaming but never came out of the bedroom. Adams said that when she drove to her mother and stepfather's apartment, she took her gun with her. She said that she found her gun on her living-room floor. Taylor testified that Adams arrived at his house a little after 6 a.m., and was "crying, hooping and hollering, [with] hair all over her head." Taylor called the police.

¶ 9. Deputies Johnathan Trotter, Michael Honorable, and Youlander Harris, with the Bolivar County Sheriff's Department, responded to the call. Deputy Trotter testified that when he arrived at Taylor's residence, Adams was giving a statement to Deputy Harris. He observed that Adams was "real shaky" and was crying. Adams told the officers that she had been assaulted at her home. Deputy Trotter then called Investigator Michael Williams, who instructed Deputy Trotter to gather Adams's clothes from her home and ensure that Adams visited the hospital to have a sexual assault exam.

¶ 10. Deputy Trotter testified that he and the other deputies accompanied Adams to her trailer. He said they walked through the trailer, looking to see where Kimble entered. Deputy Trotter said he observed that in one of the bedrooms, the blinds had been removed, and a pair of scissors were lying under the window behind a dresser. Trotter said that below the window outside, he saw a child's toy car that had a dusty footprint on it. Trotter stated that it looked like somebody had used it "to maybe ... get up, inside of the house." Deputy Trotter acknowledged that although the window's blinds were damaged, neither the window itself nor the frame was damaged.

¶ 11. Investigator Williams testified that he likewise reported to Adams's home to secure the scene, take photographs, and collect evidence. Investigator Williams said that he photographed and secured several items Kimble may have touched, including a paper towel, a pair of gloves, a condom, a can of insect spray, and a role of duct tape. The pictures were admitted into evidence. Investigator Williams further testified that he also collected a loaded gun. He did not testify as to where, how or from whom he obtained the gun. It too was admitted into evidence.

¶ 12. Deputy Harris took Adams to the Bolivar County Medical Center, where Nurse Lee Levingston was working. Levingston testified that Adams told her she had been assaulted, choked, and raped, so Levingston conducted a sexual assault exam to collect any evidence. Levingston first completed a physical examination of Adams, which did not reveal any redness, bruising, scrapes, abrasions, cuts, or lacerations on Adams's body. Levingston stated that in many instances bruises may not appear until the day after an injury occurs. As part of the sexual assault exam, swabs were taken from Adams's labia and vagina. When Adams arrived home from the hospital, she noticed that she had carpet burns on her knee, a cut on her finger, and bruises on her lower back and buttocks. Adams had her boyfriend, Franklin take pictures of these injuries, and the pictures were admitted into evidence.

¶ 13. Meanwhile, police began searching for Kimble. Near the end of his shift, Deputy Trotter received a dispatch call informing him that Adams's family members had located Kimble and "were chasing him through the town." Roughly an hour later, Deputy Trotter apprehended Kimble.

¶ 14. While in custody, Kimble gave a statement to police in which he initially denied knowing Adams and going to her trailer. Later in his statement, Kimble told the police that Adams gave him her trailer keys. Kimble stated that he went to Adams's trailer, the door was unlocked, and Adams let him in. When the police suggested that Kimble's "DNA may have been left behind" in the trailer, Kimble said that he and Adams had a secret relationship. Kimble also described Adams's gun in detail.

¶ 15. Kimble gave his written consent to provide DNA samples to investigators with the Bolivar County Sheriff's Department, and his signed consent form was admitted into evidence. His DNA sample, along with the swabs from Adams's sexual assault exam, was given to the Mississippi Crime Lab to perform DNA analysis. A forensic DNA analyst testified that he performed tests on the swabs and could not exclude Kimble as a possible contributor to the male DNA found on Adams's vaginal swabs. The analyst further testified that the odds that the DNA was not Kimble's were approximately one in ten billion.

¶ 16. Kimble called Police Chief Billie Williams of the Benoit Police Department, and his father, Richard Lawrence in his defense. Chief Williams testified that after the alleged rape, he purchased Adams's trailer from her parents. Chief Williams said that after purchasing the trailer, he changed the doorknob lock and the deadbolt lock on the front door. He said that he had never opened or tried to unlock the back door. Chief Williams testified that a few days before trial, Kimble's father, Lawrence, contacted him and asked for permission to test a key on the trailer's back door. Chief Williams told Lawrence he would have to obtain the present occupant's permission.

¶ 17. Lawrence testified that three days after Kimble's arrest, Kimble called him and asked him to look for a set of keys. Lawrence found the keys in a pair of Kimble's pants at his house. A week before trial, Lawrence went to Adams's old trailer and tried to use the keys on the back door. Lawrence testified that one of the keys fit inside the back deadbolt lock, but it would not turn. He used a key on the lower doorknob lock; it went inside, and the knob turned. Lawrence explained that he turned the knob a bit, but he did not open the door or go inside the trailer because someone currently lived there. Lawrence testified that it was his opinion that he could have opened the door, although he was not certain. He said that the door was seemingly jammed because the door or lock was bent, but the key did allow him to turn the knob when he inserted it.

¶ 18. Kimble testified on his own behalf. Kimble testified that he saw Adams twice on September 4, 2015: once at a local Quick Mart and once at the library. He testified that he saw Adams at the Quick Mart around 11 a.m., had a friendly conversation with her, and invited her to a football game that night. Kimble said that Adams told him she was already going to the game with some friends. Kimble testified that he saw Adams in front of the library at about 4 p.m., and they spoke again. Kimble further testified that Adams told him that she would be home after the football game. He said Adams gave him the keys to her trailer and told him they would unlock her back door. Kimble said he had met Adams through her boyfriend, Franklin, whom he had visited at Adams's trailer. Kimble testified that he knew Franklin was out of town that evening.

¶ 19. Kimble testified that he went to Adams's trailer while Adams was at the football game, and he tried to use the keys to see if they worked. He went to a club until it closed at about 2:00 a.m. and then walked to Adams's trailer. Kimble said that he used the keys Adams gave him to enter the back door around 2:30 a.m. He said that Adams got out of bed; they talked in the living room; and they had consensual sex. He said that he used a condom that Adams gave him, claiming that it was Adams's idea. He also testified that the condom broke during sex. Kimble said that after they had sex, he used Adams's phone to call another girl-one of Adams's friends-and Adams got mad and snatched her phone.

¶ 20. Kimble initially testified that he did not know whether Adams owned a gun, and he denied telling officers that she did. Later in his testimony, Kimble said that when he was at Adams's trailer, she showed him a gun for some unknown reason. Kimble testified that Adams's son was in her bedroom and that the television set in the bedroom fell while he and Adams were in the living room having sex. Kimble acknowledged that he touched the condom wrapper, a glove, and a can of insect spray in the trailer. He testified that he did not touch the duct tape. Kimble denied telling Adams to wipe herself off after they had sex, and he testified that he did not see her wipe herself off. Kimble explained that his stepfather, who is also Adams's cousin, uses the name "Gingerbread." Kimble said he did not know a person called "Sambo." Kimble also explained that he initially denied knowing Adams and going to her trailer because he feared that if he told the police that he and Adams had sex, the police would believe it was rape, as Adams alleged.

¶ 21. Adams denied seeing Kimble or speaking with him earlier in the day, and she denied giving Kimble the keys to her trailer. She also denied that the sex was consensual. Adams testified that she only knew of Kimble because they lived in the same town.

¶ 22. Following deliberations, the jury found Kimble not guilty of burglary but guilty of rape. Kimble has timely appealed.

ANALYSIS

I. Sufficiency and Weight of the Evidence

¶ 23. On appeal, Kimble challenges the sufficiency and weight of the evidence concerning his rape conviction.

A. Sufficiency

¶ 24. Following the close of the State's case, Kimble moved for a directed verdict on both burglary and rape. After the close of all evidence, Kimble renewed his motion and requested a peremptory instruction directing the jury to find for him on both charges, which the trial court denied. On appeal, Kimble claims the evidence was insufficient to support his rape conviction, arguing that "Adams' testimony was improbable, unreasonable[,] and contradictory."

¶ 25. "The standard of review for a denial of a directed verdict, peremptory instruction, and a JNOV are identical." Vaughn v. State , 926 So.2d 269, 271 (¶ 4) (Miss. Ct. App. 2006). "A motion for a directed verdict and request for a peremptory instruction challenge the legal sufficiency of the evidence." Id. (citing McClain v. State , 625 So.2d 774, 778 (Miss.1993) ). On appeal, we review the trial court's finding regarding the sufficiency of the evidence at the time the motion for a directed verdict or request for a peremptory instruction is denied. Id. "[T]he 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), overruled on other grounds by Little v. State , 233 So.3d 288 (Miss. 2017). The issue is not whether we would have found Kimble guilty based on the evidence at trial; rather, his conviction must be affirmed if there was enough evidence for "any rational trier of fact" to have returned a guilty verdict. Id.

¶ 26. The State had to prove that Kimble had forcible sexual intercourse with Adams to convict him of rape under Mississippi Code Annotated section 97-3-65(4)(a) (Rev. 2014). Kimble argues no juror could have found him guilty beyond a reasonable doubt because Adams's testimony was exceedingly "improbable, unreasonable[,] and contradictory." In support of this argument, Kimble references a number of alleged inconsistencies in the record.

¶ 27. It is well settled that "the jury is the final arbiter of a witness's credibility." Collins v. State , 97 So.3d 1247, 1251 (¶ 14) (Miss. Ct. App. 2012) (quoting Morgan v. State , 681 So.2d 82, 93 (Miss. 1996) ). Further, "[o]ur system of justice allows the jury to make logical and reasonable inferences and presumptions." Edwards v. State , 167 So.3d 1286, 1289 (¶ 22) (Miss. Ct. App. 2014). "From these reasonable inferences, even if jurors could have come to different conclusions on each element of the crime, the evidence remains sufficient." Id. at 1289-90 (¶ 22).

¶ 28. We do not find that the inconsistencies Kimble alleges merit reversal. Viewing the evidence in the light most favorable to the State and giving the State the benefit of all reasonable inferences, the jury could have found Kimble guilty of rape beyond a reasonable doubt. Thus, we find the evidence was sufficient to support the jury's verdict.

B. Weight

¶ 29. In reviewing the weight of the evidence in favor of the verdict, "we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Swanagan v. State , 229 So.3d 698, 705 (¶ 26) (Miss. 2017). Kimble again claims that Adams's testimony was improbable, unreasonable, and contradictory. He argues the evidence is more consistent with his theory that Adams had consensual sex but claimed rape to avoid being exposed for cheating on her boyfriend. Because Kimble did not file a motion for a new trial, he is procedurally barred from challenging the weight of the evidence on appeal. See Price v. State , 749 So.2d 1188, 1199 (¶ 38) (Miss. Ct. App. 1999) ("The matter of evidentiary weight is waived by the failure to move for a new trial.").

¶ 30. Nevertheless, we will consider this issue. Having taken the opportunity to review the evidence, we find that the jury's verdict is not against the overwhelming weight of the evidence. We reiterate that the jury sits as a trier of fact and is charged with resolving conflicts in evidence. Price v. State , 847 So.2d 290, 294 (¶ 18) (Miss. Ct. App. 2003). Kimble's theory was submitted to the jury at trial, and the jury had the opportunity to consider any inconsistencies in the evidence. We find that allowing the jury's verdict to stand would not sanction an unconscionable injustice. This issue is without merit.

II. Ineffective Assistance of Counsel

¶ 31. Kimble alternatively complains that his trial counsel provided ineffective assistance by failing to file a motion for a new trial, thereby procedurally barring him from challenging the weight of the State's evidence.

¶ 32. As a preliminary matter, Kimble failed to follow Mississippi Rule of Appellate Procedure 28(a)(3), which requires that each issue be separately numbered in a statement of the issues. M.R.A.P. 28(a)(3) ; see also Leake v. Leake , 196 So.3d 1115, 1117 (¶ 6) (Miss. Ct. App. 2016). "Failure to present an issue in this fashion bars the issue for appellate review." Id. Nevertheless, we will consider Kimble's claim.

¶ 33. To establish ineffective assistance of counsel, Kimble must prove: (1) his attorney's performance was deficient, and (2) the deficiency was prejudicial. Strickland v. Washington , 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "To determine whether the counsel's performance was both deficient and prejudicial, this Court examines the totality of the circumstances, keeping in mind that a strong but rebuttable presumption exists that a counsel's conduct falls within the wide range of reasonable professional assistance." Williams v. State , 228 So.3d 949, 952 (¶ 13) (Miss. Ct. App. 2017) (internal quotation mark omitted). Accordingly, we will find the counsel's performance deficient only where there is a reasonable probability that, but for the counsel's errors, the outcome would have been different. Holland v. State , 656 So.2d 1192, 1197 (Miss. 1995).

¶ 34. We will address an ineffective-assistance-of-counsel claim on direct appeal only 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." Wynn v. State , 964 So.2d 1196, 1200 (¶ 9) (Miss. Ct. App. 2007) (quoting Wilcher v. State , 863 So. 2d 776, 825 (¶ 171) (Miss. 2003) ). If the record is inadequate to address the claim on direct appeal, we will dismiss the claim without prejudice, preserving Kimble's right to raise his claim in a properly filed motion for post-conviction relief. Sandlin v. State , 156 So.3d 813, 819 (¶ 20) (Miss. 2013).

¶ 35. Here, the record is adequate for review because Kimble's argument that his trial counsel provided ineffective assistance by failing to file a motion for a new trial depends on the record and weight of the evidence at trial. Kimble's argument is based on facts fully apparent from the appellate record, therefore we proceed to review it.

¶ 36. The Mississippi Supreme Court has found that a defense attorney's failure to file a post-trial motion challenging the weight of the evidence constituted deficient performance. Parker v. State , 30 So.3d 1222, 1235 (¶ 48) (Miss. 2010). In Parker , defense counsel moved for a directed verdict at the close of all evidence that preserved the defendant's sufficiency argument but rendered deficient performance by failing to file a post-trial motion challenging the weight of the evidence. See id. Because the verdict was not against the overwhelming weight of the evidence, the Court held that Parker was not prejudiced by the error. Id. at (¶ 49). Recently, in Pace v. State , 242 So.3d 107, 118 (¶ 31) (Miss. 2018), the supreme court found that counsel rendered deficient performance by failing to file post-trial JNOV and new trial motions, but the deficiency had not prejudiced Pace because the sufficiency and weight of the evidence were such that there was no reasonable probability that either motion would have been granted.

¶ 37. As in Parker and Pace , Kimble's counsel failed to file a post-trial motion attacking the weight of the evidence. Nonetheless, Kimble has not shown that any prejudice resulted because, as explained above, the jury's verdict was not against the overwhelming weight of the evidence. Thus, we find Kimble has not shown that trial counsel's failure to file a motion for a new trial violated his constitutional right to effective assistance of counsel.

CONCLUSION

¶ 38. We hold that the evidence was sufficient to support Kimble's rape conviction. Notwithstanding the procedural bar to Kimble's weight-of-the-evidence challenge, we find that the weight of the evidence was sufficient to support the jury's verdict. Therefore, Kimble's argument that his counsel provided ineffective assistance by failing to challenge the weight of the evidence is without merit. We accordingly affirm Kimble's conviction.

¶ 39. AFFIRMED.

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

      Adams testified that she did not see the gun on the living-room floor until after Kimble left. She said that the last time she saw it was when Kimble dragged her to the couch.

      In his police statement, Kimble claimed that Adams let him in, and he did not need to use the keys she gave him.


source: Caselaw Access Project

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

license: Public Domain

text:
    Martin Blake PUGH a/k/a Martin B. Pugh a/k/a Blake Pugh a/k/a Martin Pugh, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00538-COA
    Court of Appeals of Mississippi.
    September 18, 2018
    ATTORNEYS FOR APPELLANT: JOHN T. LAMAR JR., SENATOBIA, TAYLOR A. HECK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, JACKSON
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. This case involves the alleged sexual battery of an unconscious seventeen-year-old girl by three young men, one of whom recorded a portion of the sexual conduct on Snapchat. Martin Blake Pugh, Jayland Christipher Brittmon, and Matthew Anderson Craddock were indicted on the charges of conspiracy to commit sexual battery and sexual battery of an incapacitated person. Craddock was further indicted on the charge of depicting a child under the age of eighteen years engaging in sexual conduct.

¶ 2. Brittmon subsequently pleaded guilty to the conspiracy charge and to the reduced charge of simple assault. Craddock pleaded guilty to aggravated assault. Pugh proceeded to trial and was found guilty of both conspiracy to commit sexual battery and sexual battery of an incapacitated person.

¶ 3. Pugh was sentenced to serve one year in the custody of the Mississippi Department of Corrections (MDOC), with six months suspended, followed by four years and six months of post-release supervision on the conspiracy charge, and one year in the custody of the MDOC, with one year suspended, on the sexual battery charge, to run concurrently with the sentence for conspiracy. He was ordered to pay $200 restitution to the District Attorney; $1,763 restitution to the DeSoto County Circuit Court Clerk; a $500 fine; $100 to the Crime Victim Compensation Fund; and all court costs. Pugh was further ordered to register as a sex offender upon his release from incarceration.

¶ 4. Pugh now appeals and argues: (1) the circuit court erroneously admitted into evidence the Snapchat video as well as various text-message conversations among the parties, (2) there is insufficient evidence to support his conviction of conspiracy to commit sexual battery, and (3) the numerous evidentiary errors amount to cumulative error and mandate reversal. We find no error and affirm.

FACTS

¶ 5. On April 5, 2015, at approximately 3:00 a.m., Drew Kazemba received a Snapchat video from Craddock that showed "two guys having sex with a girl [who] looked unconscious, and it was a black guy and then there was a white guy on the other end having oral sex with her." Kazemba saved the video because the girl looked unconscious. He showed the video to his mother and ultimately turned the video in to Marshall County law enforcement.

¶ 6. At trial, Kazemba testified that Craddock admitted to being one of the guys in the video and identified the unconscious-looking girl as Gina Warren. The Snapchat video was offered and admitted into evidence as Exhibit 1, with no objection by Pugh.

¶ 7. Following Kazemba's testimony, Brittmon testified regarding the events of the night. Brittmon explained that on the night of Saturday, April 4, 2015, he, along with Pugh, Craddock, Kate Hill, and Blake Conner, went to a party in Byhalia. Gina, Brittmon's close friend, was also at the party and, according to Brittmon, spent most of the time flirting with Conner. Brittmon stated he did not see Gina flirt with Pugh or Craddock.

¶ 8. Later that night, Gina asked Brittmon for a ride to Hannah Ferguson's house. Brittmon, Pugh, Craddock, Hill, Conner, and Gina subsequently left the party around midnight. Brittmon testified that at the time they left the party, Gina was "pretty drunk." They dropped Hill off at her house and decided to go to Waffle House to eat. However, Brittmon explained that once they arrived at Waffle House, they "decided not [to eat] after [they] had to help [Gina] inside - [s]he couldn't make it alone to the restroom, so [they] decided just to leave." However, they did not take Gina to Hannah Ferguson's house "[b]ecause at one point [Gina] stated she didn't want to go, and then [they] figured it would be easier for [them] to just go to [Brittmon's] house and not to worry about it."

¶ 9. When they got to Brittmon's house, Conner got in his car and left. Brittmon stated that they "[had] to pretty much help [Gina] inside" as she was "still in the same condition." Once inside Brittmon's house, Brittmon, Pugh, Craddock, and Gina went to Brittmon's bedroom. Although they were going to send Gina upstairs, Gina "jumped in bed and got undressed." Brittmon and Pugh then got in the bed with Gina. Craddock was on the floor or in an adjoining bathroom.

¶ 10. According to Brittmon, Gina unbuckled Pugh's pants and began performing oral sex on him. Brittmon was about to tell them to get out when Gina grabbed his hand and stuck it in her pants. Brittmon stated they all "start[ed] messing around" and "pretty much all three had sex with [Gina] at some point throughout the night." Brittmon explained that Craddock got involved "randomly throughout the escapade." Brittmon had sex with Gina first, then Pugh, then Craddock, and then Brittmon had sex with Gina again for a second time. The Snapchat video, previously admitted into evidence, was then published to the jury.

¶ 11. Following publication of the video, Brittmon testified that there was no break in the time period while the three men were having sex with Gina. Instead, "[i]t happen[ed] all at the same time."

¶ 12. Brittmon further testified that he recalled seeing a flashlight but did not realize that it was a Snapchat video. Brittmon learned of the Snapchat video "[o]nce everything [w]as finished" and he checked his phone. Brittmon agreed that the video was received shortly after the incident occurred.

¶ 13. Following the incident, Brittmon and Pugh took Craddock home. Brittmon testified that they discussed the video at one point but did not talk about it a lot. However, Brittmon stated that Pugh was aware of the video at that time. After Brittmon and Pugh dropped off Craddock, they returned to Brittmon's house and went to sleep.

¶ 14. The next morning, Gina woke up and asked why her clothes were off. Brittmon told her that she had gotten hot. Neither Brittmon nor Pugh advised Gina that they had had sex.

¶ 15. Several hours later, Gina texted Brittmon and the following conversation occurred:

Gina: Hey! Thanks [f]or letting me crash at your house.
Brittmon: [H]aha no problem. [B]ut I gotta tell you somethin[g].. we kinda had sex last night and I feel so bad about it. I wouldn't have done it but you kept grabbin at my wang lol[.] I wanted to tell you this morning but you didn't remember and that made me feel even worse. [B]ut you deserve to know the truth.
Gina: You're not joking are you?
Brittmon: [U]nfortunately I'm not[.]
Gina: Shit happens don't worry about it[.]
Brittmon: [C]ool beans[.]
Gina: [Brittmon,] are you sure you aren't just making this up because I swear to God I got there[,] threw up[,] and went to bed[?]
Brittmon: Why would I make this up haha[?]
Gina: Idk a joke[.]
Brittmon: [L]ol[,] no as much as I wish it was[.]

¶ 16. Gina again texted Brittmon on Monday, April 6, 2015, and asked about the Snapchat video. Their conversation was as follows:

Gina: [Brittmon,] wtf is this[?]
Brittmon: [Craddock] probably made up a story cus that did not happen.
Gina: Was he even at your house? ? Hannah [F]erguson apparently said there is a video of me or something but I don't believe it[.] I know you wouldn't let something like this happen to me [Brittmon]. I'm already disappointed with me and you because obviously I was plastered[,] but if this shit is true I'm probably going to be pissed[.]
Brittmon: [Y]eah that dickhead walked in with his [message was cutoff.]

Brittmon explained that he told Gina that Craddock walked in on them while they were having sex and took a video on his phone.

¶ 17. Following his text-message conversation with Gina, Brittmon texted Craddock and Pugh and advised that people were aware of the Snapchat video. The following group discussion occurred:

Brittmon: CRADDOCK[,] WHY DOES [GINA] KNOW ABOUT THE SNAPCHAT
YOU FUCKIN IDIOT[?] YOU ARE GETTING YOUR ASS BEAT[.]
Craddock: How does she know? ? I didn't tell anyone[.]
Brittmon: [Y]our stupid sent it to people and they fuckin talk you dumb piece of shit[.] [S]omeone mentioned the snap[.] [F]uck you [Craddock;] we ain't even cool[.] I told her u walked in while me and her were fuckin just [to] fuck with me and got it on snap[;] that's it[.]
Craddock: [redacted for the jury]
Brittmon: [A]lready did ya fuck[.] [W]ho the fuck did you send it too[?]
Craddock: I don't think [Gina] knows. And hold on let me look[.]
Brittmon: I hate you[.]
Craddock: No you don't.
Brittmon: [N]o seriously[,] fuck you[.]
Craddock: I didn't know anyone would talk bruh.
Brittmon: [I]t's high school that's all you motherfuckers do[.]
Craddock: I don't.
Brittmon: [C]all [Gina] right now and tell her y[ou] made that up ... otherwise ur cut off[.]
Pugh: God damn kid fucking grow up[.]
Brittmon: [redacted for the jury]
Craddock: Wth[.] Hold on I'm texting [Gina.]
Brittmon: [Y]ou wouldn't be chill either if you were me ya douche. [T]ell your friends to SHUT THE FUCK UP.
Craddock: She said "Okay thank you so much [Craddock] I appreciate it." It's fine.
Brittmon: [Y]ou think this is gonna be the end of it?
Craddock: It better be or [w]hoever ran their mouth will get their ass kicked[.]
Brittmon: [T]ell her you had your dick out or some bull shit[.]
Craddock: No I can't change the story.
Brittmon: [C]us so many people know obviously dick face[.]
Craddock: Then she'll know something's up.
Brittmon: [W]hat is she saying to you[?]
Craddock: [redacted for the jury]
Brittmon: [redacted for the jury]
Brittmon: [T]ell everyone you told to shut the fuck up right now or ur dead[.]
Craddock: I did. I only sent it to my close "friends" so I must have some fake friends[.] Deny it[.]
Brittmon: [I]dk yet bruh no reply[.] [Pugh is gonna call Hannah and tell her the story that he [t]old [Gina.]
Craddock: But what is Hannah gonna do[?]
Brittmon: [O]h tell her parents ... some shit we don't need[.] [M]y phones on 2%[.]
Craddock: [Gina] doesn't believe them. And I promise if I found out who ran their mouth I'll tell [you all] and we can jump them[.]
Brittmon: I'm not tryna beat somebodies ass, I want you to find out and tell them to shut their fucking mouths. [H]ow many people did you send this to[,] like goddamnit kid.
Craddock: 7. And they are all "close" to me but not[.]
Craddock: She read?
Brittmon: [H]er receipt ain't on so idk[.]
Craddock: I gotcha. I think we will be okay[.]
Brittmon: I'm just tryna put it behind me[.]
Craddock: Me too[.]
Brittmon: [UR] not allowed to be on snapchat around me[.]
Craddock: I have [a]nd I think [Gina] [i]s taking care of Hannah[.]
Brittmon: I texted Hannah myself and sent some bullshit[.]
Craddock: Stick to the I walked in[.]
Brittmon: [D]uh[.]
Craddock: Tell me what she says[.] What did she say to you?

¶ 18. Brittmon testified that following the group discussion, he thought they were in the clear. However, he was subsequently contacted by a police officer and interviewed. Brittmon stated he initially told the police officer "a story about how [he] wasn't originally aware of Snapchat, and then how [Craddock] just came in at some point and filmed [him] having sex with [Gina]." Brittmon admitted to the officer that he, Craddock, and Pugh all had sex with Gina, but he maintained that Gina initiated it. When asked by the officer why Gina looked unconscious in the video, Brittmon advised, "because she was fucked up."

¶ 19. Importantly, Brittmon testified that he did not believe Gina was competent enough to give consent. Brittmon acknowledged that in the Snapchat video, Gina was not reaching for Craddock's penis or trying to put his penis in her mouth. Instead, Craddock was holding his own penis and trying to put his penis in Gina's mouth. Brittmon stated Gina was not pushing Craddock's penis away because "[s]he was in a state of mind not able to properly respond."

¶ 20. The State's last witness was Gina. Gina testified that she had never met Pugh before that night but that he was dating one of her friends, Hill. Gina further testified that although she and Brittmon were friends, she had never had a sexual relationship with him and did not desire to have one. Gina admitted that she drank at the party and stated she felt drunk and woozy in the car after the party. Gina testified that the last thing she remembers from that night was throwing up in a dark bathroom in an unknown location. She had no recollection of going to Waffle House.

¶ 21. Gina first learned of the Snapchat video from a friend. Gina stated that Brittmon, Pugh, and Craddock subsequently contacted her. She explained that Brittmon did not tell her that she had had sex with Pugh or Craddock, Pugh told her that she was "being flirty" but did not advise that they had had sex, and Craddock did not advise her that they had had sex.

¶ 22. Gina denied initiating sex with Brittmon, Pugh, or Craddock. She said that Brittmon, Pugh, and Craddock told her that "it could go away if [she] said it was consensual."

¶ 23. Hill testified on behalf of Pugh and stated that on the night in question, Gina was "drinking excessively" at the party, and referred to Gina as a "lightweight." Hill explained that the group left the party no later than 2:30 a.m. because she had to be home around 3:00 a.m. According to Hill, Gina appeared to be okay at the party and seemed coherent during the car ride after the party. Hill stated she had no concerns for Gina's safety. However, Hill acknowledged that after the party, she was dropped off first and did not know what subsequently happened.

¶ 24. Pugh testified in his own defense and admitted that he got drunk at the party. He further admitted that he and Gina had sex for "a couple of minutes" right after she performed oral sex on him. Specifically, Pugh explained that Brittmon had sex with Gina first while Gina performed oral sex on him, then he had sex with Gina. Afterwards, Pugh got on the floor and went to bed.

¶ 25. Pugh recalled seeing Craddock in Brittmon's bedroom that night, but stated he did not know about the Snapchat video until they turned the lights on and he checked his phone. Pugh acknowledged that Gina was "drunk" and "acting wild" but stated at no time while at Brittmon's house or before did Gina seem to be incoherent.

¶ 26. Following his convictions and sentence, Pugh filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court denied. Pugh timely appealed.

ANALYSIS

I. Admission of Evidence

¶ 27. Pugh first argues the circuit court erred in its admission of the Snapchat video and the various text-message conversations among the parties. We separately address each evidentiary issue, but we note that the standard of review is the same.

¶ 28. "The admission or suppression of evidence is within the sound discretion of the [circuit court] and will not be reversed unless there is an abuse of that discretion." Sturkey v. State , 946 So.2d 790, 794 (¶ 11) (Miss. Ct. App. 2006). "We will only reverse under that standard if the admission of the evidence results in prejudice or harm to the opposing party, or if it adversely affects a substantial right of the party." Id.

a. Snapchat Video

¶ 29. Pugh asserts "[t]he Snapchat video was inadmissible for multiple reasons." However, we find this issue is procedurally barred. Pugh did not object to the admission of the Snapchat video at trial. "[F]ailure to make a contemporaneous objection waives an issue for purposes of appeal." Boyd v. State , 175 So.3d 1, 4 (¶ 13) (Miss. 2015). Because Pugh did not object to the admission into evidence of the Snapchat video, he is procedurally barred from raising its admission as an issue on appeal.

¶ 30. Notwithstanding the procedural bar, we find this issue is meritless. Pugh first argues the video was not authenticated. Mississippi Rule of Evidence 901(a) provides for the authentication of evidence as a condition precedent to admission. Pursuant to Rule 901(a), "[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is."

¶ 31. Here, the record shows Kazemba reviewed the Snapchat video prior to taking the witness stand and testified that the video fairly and accurately represented what he received from Craddock. Kazemba testified that Craddock was one of his Snapchat contacts and explained how he was able to save the video upon receipt. Kazemba further testified that Craddock and Gina were two of the individuals in the video and that Gina "looked unconscious."

¶ 32. Additionally, both Brittmon and Pugh admitted to having sex with Gina and testified that they received the Snapchat video from Craddock shortly after the incident occurred when they checked their phones. Moreover, Brittmon testified that he remembered seeing a flashlight while he was having sex with Gina, but he did not realize it was a Snapchat video.

¶ 33. Overall, we find the State produced sufficient evidence to support a finding that the Snapchat video admitted into evidence at trial was what the State claimed it was-that is, a Snapchat video from Craddock depicting the alleged sexual battery of Gina. Accordingly, the Snapchat video was properly authenticated.

¶ 34. Pugh next argues the video was irrelevant because the State never established a timeline or when Craddock recorded the video. Under Mississippi Rule of Evidence 401, evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the case." " Rule 401 is construed broadly in favor of admitting evidence with even slight probative value." Ross v. State , 954 So.2d 968, 993 (¶ 44) (Miss. 2007).

¶ 35. Here, the video is relevant because it shows Gina's condition during the incident and corroborates the State's testimony regarding the incident. Pugh asserts "the State only narrowed the timeline ... to sometime between shortly after midnight and 3 a.m." and notes that "in a case where the charge is sexual battery of an incapacitated person, even seconds make a huge difference when determining whether someone is incapacitated or not." However, such assertion does not affect the relevancy of the video. Pugh's argument regarding the three-hour time frame was addressed during trial and was for the jury to consider and resolve.

¶ 36. Pugh last argues "any probative value the video had was substantially outweighed by the danger of unfair prejudice and/or misleading the jury." Mississippi Rule of Evidence 403 is considered the ultimate filter through which all evidence must pass. Palmer v. State , 939 So.2d 792, 795 (¶ 10) (Miss. 2006). Under Rule 403, relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."

¶ 37. Pugh claims "the jury certainly could have gone into deliberations with the (mis)understanding that [he] was one of the males in the video and/or that the video was taken during the time period that [he] had sexual contact with Gina." However, Kazemba testified that the video showed "two guys having sex with [Gina] ... a black guy and ... a white guy." As previously noted, Brittmon is a black male. Although Craddock and Pugh are both white males, Kazemba testified that Craddock, not Pugh, was in the video. Thus, the testimony makes clear that Pugh was not in the video.

¶ 38. Regardless, Pugh admitted to having sex with Gina that night, and the testimony shows that Pugh had sex with Gina at or around the same time as Brittmon and Craddock. Simply because Pugh was not actually recorded and/or depicted in the Snapchat video is of no consequence.

¶ 39. We find the Snapchat video was "in some way related or linked to the crime charged." See Goree v. State , 748 So.2d 829, 838 (¶ 19) (Miss. Ct. App. 1999) (When determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice to the defendant, "[t]he key issue remains whether [the evidence] was in some way related or linked to the crime charged."). As a result, its admission did not violate Rule 403.

¶ 40. Overall, we find the Snapchat video was properly authenticated and relevant, and its probative value was not substantially outweighed by the danger of unfair prejudice or misleading the jury. Accordingly, the circuit court did not abuse its discretion in the admission of the Snapchat video.

b. Text-message Conversations Between Brittmon and Gina

¶ 41. Exhibits 2 and 3 are text-message conversations between Brittmon and Gina sent and received April 5th and 6th, after the incident occurred. Pugh argues "Exhibits 2 and 3 are classic examples of hearsay for which the State provided no exception." As with the Snapchat video, Pugh failed to object to the admission of Exhibits 2 and 3 at trial. Thus, Pugh's claim regarding the admissibility of the exhibits is procedurally barred. Boyd , 175 So.3d at 4 (¶ 13).

¶ 42. Regardless of the procedural bar, we do not find that any prejudice or harm resulted from the admission of Exhibits 2 and 3. Sturkey , 946 So.2d at 794 (¶ 11). Both Brittmon and Gina testified at trial and advised the jury about what happened that night, the condition Gina was in at the time, and the discovery of the Snapchat video. Exhibits 2 and 3 do not provide new or additional information. Instead, the same information included in the exhibits was offered through Brittmon and Gina's testimony. Thus, any error in the admission of Exhibits 2 and 3 was harmless. See Reynolds v. State , 136 So.3d 452, 459 (¶ 22) (Miss. Ct. App. 2014) (finding that there was no hearsay issue, but if there was, any error would be harmless, since the witness testified to the same event at trial).

c. Text-message Conversation Among Brittmon, Craddock, and Pugh

¶ 43. Exhibit 4 is thirteen pages of text messages among Brittmon, Craddock, and Pugh sent and received after the incident occurred. Pugh claims Exhibit 4 is inadmissible hearsay and should have been excluded.

¶ 44. The State offered Exhibit 4 in support of the conspiracy charge. Prior to trial, Pugh objected to the admission of Exhibit 4 "based on the fact that [Craddock] ha[d] previously pled guilty to aggravated assault and, therefore, ... is not a true coconspirator and [Exhibit 4] would be hearsay as [it] relates to [Craddock]." The circuit court overruled the objection at that time but advised defense counsel that it would revisit the issue when the evidence was offered. When the State sought to admit Exhibit 4 at trial, defense counsel objected based "on [the] previous objection." The circuit court allowed the State to develop the evidence outside the presence of the jury. Thereafter, the circuit court overruled the objection.

¶ 45. On appeal, Pugh does not reassert that Craddock was not a true coconspirator in light of his guilty plea. Instead, Pugh now claims the circuit court failed to follow the requisite procedure for the admission of a coconspirator's testimony. However, Pugh did not raise this issue prior to or during trial, and he did not include this issue in his posttrial motions.

¶ 46. "Issues raised for the first time on appeal are procedurally barred from review as they have not first been addressed by the [circuit] court." Jackson v. State , 856 So.2d 412, 415 (¶ 12) (Miss. Ct. App. 2003). "As an appellate court, we cannot find that a [circuit court] committed reversible error on a matter not brought before [it] to consider." Id. Moreover, an objection cannot be enlarged on appeal to include an omission not objected to at trial. McGarrh v. State , 249 Miss. 247, 276, 148 So.2d 494, 506 (1963). Because Pugh's argument on appeal differs from the objection raised at trial, we find it to be procedurally barred.

¶ 47. Notwithstanding the procedural bar, we find Exhibit 4 is admissible under Mississippi Rule of Evidence 801.

Pursuant to Rule 801(c), a hearsay statement is one that "(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." However, "[s]tatements made after the completed act pertaining to a coverup of that act" are admissible under Rule 801(d)(2)(E). Williamson v. State , 512 So.2d 868, 879 (Miss. 1987), overruled on other grounds by Hansen v. State , 592 So.2d 114, 134 (Miss. 1991).

¶ 48. Here, the statements included in Exhibit 4 were made after the alleged sexual battery occurred and pertained to a coverup of that act. At trial, Brittmon acknowledged that during the text-message conversation, he, Craddock, and Pugh discussed the fact that everyone knew about the Snapchat video. Importantly, Brittmon acknowledged that they discussed what they needed to do "to prevent anyone else from finding out about what actually happened that night." Brittmon stated that following the group discussion, they thought they were "in the clear." As noted in Williamson , one of the objectives of any conspiracy is to avoid arrest and prosecution. Id. Accordingly, contrary to Pugh's assertion, the statements included in Exhibit 4 are not inadmissible hearsay.

d. Conner's Text Message to Gina

¶ 49. At trial, Brittmon testified that the group went to Waffle House after they left the party. Brittmon stated they were going to eat, but "decided not to after [they] had to help [Gina] inside." Brittmon explained that "[Gina] couldn't make it alone to the restroom, so [they] decided just to leave."

¶ 50. During Pugh's direct testimony, he was questioned about Gina's condition at Waffle House. Pugh acknowledged that Gina went to the bathroom, but stated he did not see Gina stumbling or staggering, and that no one had to help her to the car. With regard to Brittmon's testimony, Pugh stated, "until yesterday [when Brittmon testified], that was never - no one ever said that."

¶ 51. On cross-examination, Pugh again testified that no one ever said Gina had trouble at Waffle House or needed help to the restroom. The State then asked Pugh, "[s]o is it not true that Blake Conner texted Gina and said [she] almost passed out when [they] were at Waffle House?" Defense counsel objected based on hearsay. The circuit court overruled the objection because Pugh was "on cross-examination."

¶ 52. The State continued its questioning until defense counsel again objected and a bench conference was held. Following the bench conference, the circuit court sustained the objection and allowed counsel the opportunity to lay a foundation for the line of questioning. The State then asked Pugh, "What did you mean on direct when you said no one had ever said that before?" Pugh explained that "[n]o one's ever said [Gina] needed help getting out of Waffle House ... I've talked to Blake Conner ... [h]e never saw it ... I've never heard it until yesterday when you asked [Brittmon] about it." Defense counsel then objected as follows:

Once again, the initial question was - his initial statement was that nobody had ever said anything about [Gina] having to be helped out of Waffle House to the car. Now we're trying to back door into some type of hearsay about the alleged text that this individual, that [Pugh] did not see.

The circuit judge responded, "Well, if he doesn't know, he can certainly say he doesn't know. I'll overrule the objection."

At that point, the State advised it would move on to a different line of questioning.

¶ 53. Pugh argues the State's reference to Conner's text message to Gina was inadmissible hearsay. We disagree. A review of the record shows that the State was not offering the statement to prove the truth of the matter asserted (i.e. that Gina almost passed out at Waffle House). Instead, the State referenced Conner's statement to show that, despite Pugh's testimony, someone other than Brittmon had stated that Gina had trouble at Waffle House. "[S]tatements can be offered solely for the purpose of demonstrating that they were said...." Fair v. State , 766 So.2d 787, 791 (¶ 9) (Miss. Ct. App. 2000) (citing Gayten v. State , 595 So.2d 409 (Miss. 1992) ).

¶ 54. Regardless, any error in the admission of the statement was harmless. An error is considered harmless "if the same result would have been reached had [it] not existed." White v. State , 48 So.3d 454, 458 (¶ 17) (Miss. 2010). Conner's text message challenged Pugh's testimony that no one ever said Gina had trouble at Waffle House. However, Pugh testified that Gina was drunk that night; Brittmon testified Gina was drunk at Waffle House, which was why they left; and Gina testified she was drunk and did not remember going to Waffle House. Thus, even if the statement was erroneously admitted, such error was harmless as there was already testimony before the jury regarding Gina's condition at Waffle House.

II. Sufficiency of the Evidence of Conspiracy

¶ 55. Pugh next argues the State did not present sufficient evidence of a conspiracy. Thus, Pugh claims the circuit court erred in denying his motion for a JNOV.

¶ 56. When "reviewing a case for sufficiency of the evidence, this Court considers each element of the offense and reviews all of the evidence in the light most favorable to the verdict." Lenoir v. State , 224 So.3d 85, 90 (¶ 18) (Miss. 2017). "[We] must accept as true all credible evidence consistent with guilt" and "give the State the benefit of all favorable inferences that may reasonably be drawn from the evidence." Id. at 90-91 (¶ 18) (internal quotation mark omitted). "[We] may reverse only when, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty." Id. at 91 (¶ 18). "Thus, if any rational trier of fact could have found each and every one of the elements of the crime beyond a reasonable doubt, when viewing the evidence in the light most favorable to the prosecution, the verdict must stand." Id.

¶ 57. Under Mississippi Code Annotated section 97-1-1(1)(a) (Rev. 2014), a conspiracy occurs "[i]f two (2) or more persons conspire ... [t]o commit a crime ...." "An alleged conspirator's participation in a conspiracy may be proved entirely by circumstantial evidence." Graham v. State , 120 So.3d 382, 388 (¶ 19) (Miss. 2013). "However, there must exist some evidence that a defendant has associated himself with the venture in some fashion, participated in it as something that he wished to bring about, or sought by his action to make it succeed." Id. "[N]o express agreement is required; an agreement can be inferred from the surrounding circumstances, such as the declarations, acts and conduct of the alleged conspirators." Id. Even without explicit testimony concerning a conspiracy, the jury can still infer from the circumstances that a conspiracy existed. Humphrey v. State , 74 So.3d 923, 926 (¶ 12) (Miss. Ct. App. 2011).

¶ 58. Here, we find sufficient evidence was presented to allow a jury to infer that a conspiracy existed. Brittmon testified that when he, Pugh, Craddock, and Gina arrived at his house, they had to help Gina inside due to her condition. At that point, Gina got into Brittmon's bed and got undressed. Although there was an empty bedroom upstairs, Brittmon and Pugh got in the bed with Gina. Craddock was nearby, either on the bedroom floor or in the adjoining bathroom. Brittmon testified that he, Pugh, and Craddock "pretty much had sex with [Gina] at some point throughout the night." Brittmon further testified there was never a break where they left and came back later. Instead, "[i]t happen[ed] all at the same time." The next morning, when Gina asked why her clothes were off, neither Brittmon nor Pugh advised Gina of the sexual intercourse. Instead, she was told that she had gotten hot.

¶ 59. Additionally, the various exhibits, including certain text messages, show Gina's surprise when learning of the incident, as well as Brittmon, Pugh, and Craddock's attempt to explain and coverup the incident. Notably, Pugh advised Craddock, "if you're gonna do shit with us[,] part of that is not broadcasting it to all your dumbass friends that are gonna tell everyone ... [y]ou made a young mistake...." Moreover, Gina testified that Brittmon, Pugh, and Craddock told her that if she would say that the sex was consensual, all of this would go away.

¶ 60. Overall, we find sufficient evidence exists to support Pugh's conviction of conspiracy to commit sexual battery. Accordingly, the circuit court did not err in denying Pugh's motion for a JNOV.

III. Cumulative Error

¶ 61. Pugh last argues "the numerous evidentiary errors in this case amount to cumulative error that mandates reversal." "The cumulative error doctrine stems from the doctrine of harmless error, which holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial." Thompson v. State , 990 So.2d 265, 270 (¶ 12) (Miss. Ct. App. 2008).

¶ 62. Here, we do not find that Pugh was deprived of a fundamentally fair trial by the cumulative effect of any individual errors. Accordingly, we affirm the judgment of the DeSoto County Circuit Court.

¶ 63. AFFIRMED.

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

      The record shows Brittmon is a black male born in 1995; Pugh and Craddock are both white males, born in 1996, and in 1998, respectively.

      For privacy purposes, we substitute a fictitious name for the minor victim.

      The text-message conversation was offered and admitted into evidence as Exhibit 2, with no objection by Pugh.

      The text messages were offered and admitted into evidence as Exhibit 3, with no objection from Pugh.

      The group discussion was admitted into evidence as Exhibit 4. The pages of Exhibit 4 appear to be out of order. We include the text-message conversation in the order it appears in the record.

      We note that Pugh's witness, Hill, testified that they left the party no later than 2:30 a.m., thereby narrowing the timeline.

      This text-message conversation was offered by Pugh and admitted into evidence as Exhibit 7.


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

text:
    Devin SHEPHERD a/k/a Devin Ray Shepherd, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00837-COA
    Court of Appeals of Mississippi.
    September 18, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN A. SUBER, GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, JACKSON
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. Following a jury trial in the Circuit Court of DeSoto County, Mississippi, Devin Shepherd was convicted of home-invasion burglary in violation of Mississippi Code Annotated section 97-17-23(1) - (2) (Rev. 2014) and sentenced to serve seven years in the custody of the Mississippi Department of Corrections, with four years suspended upon completion of an anger-management program and a drug-and-alcohol treatment program, and with three years of postrelease supervision. Shepherd was credited with time served while awaiting trial. He was ordered to pay fines and court costs and also ordered to have no contact with the victim or the victim's family. Shepherd now appeals his conviction. Finding no error, we affirm.

FACTS

¶ 2. On January 11, 2016, Officer Christopher Rainbolt with the Southaven Police Department responded to a dispatch call to 2207 Colonial Hills Drive in Southaven, Mississippi. When Officer Rainbolt arrived, he spoke with Eva Steverson, the owner of the residence, who made the 911 call. Officer Rainbolt investigated the scene and learned that Shepherd had entered Eva's home and was beating on the door threatening Franklin Steverson, Eva's grandson. Officer Rainbolt noticed and took pictures of a busted door frame and door to the Steverson residence, damage to the laundry room-door, and a broken bedroom window. Officer Rainbolt found Shepherd two blocks away from the home.

¶ 3. At Shepherd's trial, Eva testified that she lived with her husband and with her grandson, Franklin. On the date of the burglary, Eva heard her door slam and then heard beating on one of the bedroom doors. She went to the bedroom door where she saw Shepherd beating on the door and telling Franklin "come out of there," and that he was "going to kill him." Eva testified that she told Shepherd to leave her home and that she was going to call the police. Then, Shepherd ran down the hall in front of Eva and punched one of her doors, breaking two slated pieces. He also went out to the den door and "kicked it and punched the trim around it." Eva stated that Shepherd told her he was going to kill her grandson. Eva also testified regarding an incident with Shepherd two days prior to the burglary. On January 9, 2016, Shepherd was on her front porch, and she told him to leave. She stated that Franklin was drinking a cup of coffee on the porch, and Shepherd started beating on him. Eva told Shepherd to stop, and he pushed her. Franklin then stabbed Shepherd in the leg with a kitchen knife. Eva testified that she was scared of Shepherd for Franklin.

¶ 4. Franklin also testified at Shepherd's trial. According to Franklin, he knew Shepherd only as an acquaintance since eighth grade, but the two were not friends because Shepherd "was always a bully." Franklin stated that he never invited Shepherd to his house, and that his grandparents told Shepherd to leave every time he came over. Franklin stated that Shepherd forced himself around Franklin and that his grandparents did not allow Shepherd over and had called the police on him before. Franklin testified that on the day of the burglary, Shepherd "jerked open the screen door" which was "locked, but he jerked it out of place." Franklin was standing in the hallway when he saw Shepherd had entered the house. Franklin stated he ran to his room because Shepherd was "coming back to retaliate, to kill me." Franklin put a wooden board under his bedroom-door handle and said that Shepherd "started beating on the door, and he said he was going to kill me multiple times." Because Shepherd could not get in Franklin's room from inside the house, Shepherd ran outside to the window and kicked the window. He was not able to knock out the window but broke the glass. Franklin believed that Shepherd was there to retaliate for an altercation that happened on January 9, 2016. According to Franklin, two days prior to the burglary, Shepherd showed up at the Steverson house uninvited. Franklin told him to leave, but Shepherd refused. Franklin testified that Shepherd smirked at him and started punching him in the face. Eva witnessed the event and became very upset, and then Shepherd pushed Eva. Franklin stated he grabbed a kitchen knife and stabbed Shepherd in the leg. Shepherd continued to hit Franklin in the face and would not leave the house. Franklin threw some things at Shepherd. The police were called, but no charges were pressed. Franklin stated he hoped that Shepherd would "leave [him] alone and not come back, but he did." Franklin testified that he believed Shepherd came back on January 11, 2016, to retaliate for the incident two days prior, and that he was afraid Shepherd was going to kill him.

¶ 5. Shepherd also testified on his own behalf. He stated that he and Franklin had been close friends for years who simply "got into an argument." He said that he spent a lot of time at the Steverson house, that he "h[u]ng out with them quite frequently," and that he and Franklin smoked weed together. Shepherd admitted he went to the Steverson house drunk on the date of the burglary incident and entered without knocking. He also admitted to breaking the window when he left but blamed it on being drunk. He stated he made "a bad decision to go over there," that he "trespassed," and "maybe vandali[zed]," but he denied that he committed burglary.

¶ 6. The jury found Shepherd guilty of home-invasion burglary. He now appeals his conviction arguing (1) that there was insufficient evidence to support his conviction and (2) that the verdict was against the overwhelming weight of the evidence.

DISCUSSION

I. Sufficiency of the Evidence

¶ 7. Shepherd argues that there was insufficient evidence to support the guilty verdict for burglary, and therefore, the trial court erred by denying his motion for a judgment notwithstanding the verdict (JNOV).

¶ 8. This Court's standard of review for a trial court's grant or denial of a motion for a JNOV is de novo. Estate of Gardner v. Gardner , 228 So.3d 921 (¶ 19) (Miss. Ct. App. 2017). A motion for a JNOV challenges the legal sufficiency of the evidence, and where there is substantial evidence to support the verdict, we will affirm the denial of a JNOV. InTown Lessee Assocs. 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).

¶ 9. Shepherd was charged and convicted of burglary under Mississippi Code Annotated section 97-17-23(1) - (2). " Section 97-17-23(1) sets out the elements the State must prove to convict a defendant of burglary. Those elements are: (1) the unlawful breaking and entering of a dwelling and (2) the intent to commit some crime therein." Johnson v. State , 235 So.3d 1404, 1410 (¶ 13) (Miss. 2017). Section 97-17-23(2) enhances the minimum penalty when burglary is committed "under circumstances likely to terrorize any person who is actually occupying the house at the time of the criminal invasion of the premises." Johnson v. State , 242 So.3d 145, 165 (¶ 42) (Miss. Ct. App. 2017).

¶ 10. Now on appeal, Shepherd states that the evidence was insufficient to meet the first element of burglary-breaking and entering. He argues that because there was evidence that Shepherd had been to the Steverson home on numerous occasions, he did not unlawfully enter the house on the date of the burglary. But, both Eva and Franklin testified that Shepherd was not invited to the house on the day of the burglary. Franklin stated that Shepherd "jerked open" the screen door-pulling it out of place even though it was locked-and entered the home. Eva testified that she heard the door slam and someone enter the house, indicating force. By Shepherd's own admission, he entered the house without knocking and without permission. The supreme court has defined breaking as "any act or force, however[ ] slight, employed to effect an entrance through any usual or unusual place of ingress, whether open, partly open, or closed." Johnson , 235 So.3d at 1410 (¶ 14) (internal quotation marks omitted).

¶ 11. Here, having accepted as true all the evidence favorable to the State, the evidence with regard to the element of breaking and entering is not such that reasonable and fair-minded jurors could only have found Shepherd not guilty. Rather, reasonable and fair-minded jurors could have found from the evidence that Shepherd unlawfully broke and entered the Steverson home.

¶ 12. Shepherd also argues there was insufficient evidence to establish that he intended to assault Franklin. The indictment specifically charged that Shepherd broke and entered with the intent to commit the crime of attempted assault. Shepherd argues that this element was not established because he did not possess a weapon and that Franklin admitted he was not hit or assaulted.

¶ 13. "An attempt to commit a crime consists of three elements: (1) an intent to commit a particular crime, (2) a direct ineffectual act done toward its commission, and (3) the failure to consummate its commission." Craig v. State , 201 So.3d 1108, 1111 (¶ 9) (Miss. Ct. App. 2016) (quoting Brooks v. State , 18 So.3d 833, 841 (¶ 33) (Miss. 2009) ).

¶ 14. In the instant case, there was testimony that Shepherd was beating on Franklin's bedroom door and threatened to kill him. Shepherd admitted he broke Franklin's bedroom window. Eva testified that Shepherd told her he was going to kill Franklin. In addition, Officer Rainbolt's testimony and photographic evidence supported Eva and Franklin's testimony. Accepting this evidence as true, along with all reasonably-drawn inferences, reasonable and fair-minded jurors could have concluded that Shepherd's verbal threats coupled with the overt act of beating on Franklin's bedroom door and breaking his window evidenced his intent to assault Franklin.

¶ 15. The evidence in this case was sufficient for the jury to find the State had proved both elements of burglary beyond a reasonable doubt. This issue is without merit.

II. Weight of the Evidence

¶ 16. Shepherd also argues that the verdict was against the overwhelming weight of the evidence, and therefore, the trial court erred when it denied his motion for a new trial.

¶ 17. "A new trial based on the weight of the evidence should be granted only in exceptional cases in which the evidence preponderates heavily against the verdict." Watson v. State , 205 So.3d 1094, 1095 (¶ 5) (Miss. Ct. App. 2016) (internal quotation mark omitted). "When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Doss v. State , 212 So.3d 886, 890 (¶ 13) (Miss. Ct. App. 2016). "The evidence is viewed in the light most favorable to the verdict." Id. "[R]eversal is warranted only if the trial court abused its discretion in denying [the] motion for a new trial." Watson , 205 So.3d at 1095 (¶ 6).

¶ 18. Here, Shepherd argues that the verdict is "clearly against the overwhelming weight of the evidence," because "at most, [his] case is a trespass." For support, he points to the testimony that he and Franklin had known each other since eighth grade, that they had smoked weed together, and claims he was "a constant fixture at the home of Franklin." But, based on the evidence previously described and viewed in the light most favorable to the verdict, we cannot find that the verdict is contrary to the overwhelming weight of the evidence or that allowing the verdict to stand would sanction an unconscionable injustice. This issue is without merit.

¶ 19. AFFIRMED.

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


author: BARNES, J., FOR THE COURT:

text:
    Edward William SPEIGHTS III, Appellant v. Kimberly Daniels SPEIGHTS, Appellee
    NO. 2016-CA-01691-COA
    Court of Appeals of Mississippi.
    September 18, 2018
    ATTORNEY FOR APPELLANT: RENEE M. PORTER
    ATTORNEY FOR APPELLEE: S. CHRISTOPHER FARRIS
    EN BANC.
   BARNES, J., FOR THE COURT:

¶ 1. Edward Speights ("Trey") appeals the judgment of the Chancery Court of Jefferson Davis County, which granted Kimberly Speights a divorce on the ground of habitual drunkenness and divided the marital property. On appeal, Trey claims the chancery court erred in failing to make findings of fact and conclusions of law on the divorce, as well as allowing Trey's parents "to act as his de facto attorneys" for the division of marital assets at trial, when Trey failed to appear. Trey also argues the chancery court erred in failing to order the parties to submit a Uniform Chancery Court Rule 8.05 financial disclosure form. Regarding the property division, Trey contends the chancery court failed to make a distinction between marital and non-marital property, and failed to support its decision with findings of fact under the Ferguson factors.

¶ 2. We affirm the grant of divorce on the ground of habitual drunkenness. We also find no error in the role of Trey's parents at the trial. However, we reverse and remand on the issue of property division, in order for the chancery court to make findings of fact under Ferguson , and for the parties to file Rule 8.05 financial disclosure forms to assist and support the chancellor in making those findings.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. Kimberly and Trey married in 2004 and separated in December 2015. No children were born of the marriage. In January 2016, Kimberly filed for divorce from Trey on the grounds of habitual cruel and inhuman treatment, excessive drug use, habitual drunkenness, or, alternatively, irreconcilable differences. Kimberly requested Trey continue to be restrained from threatening and harassing her under an order similar to an already-issued Justice Court Domestic Abuse Protective Order. The complaint was properly served on Trey on January 21, 2016, along with a Mississippi Rule of Civil Procedure 81 summons to appear at the hearing on February 3, 2016.

¶ 4. On that date, the trial was continued until March 2, 2016. The protection order was extended as well. On February 19, 2016, Trey answered the complaint through counsel. The March 2 trial was continued again. On June 28, 2016, another summons was issued for Trey to appear at the trial, which was reset for August 8, 2016. Trey was served with the summons on July 7, 2016. Trey's attorney moved to withdraw because Trey "failed to obey the requests of [his] attorney." The motion to withdraw was granted.

¶ 5. On August 8, 2016, an order was entered continuing the trial until September 21, 2016. Trey was properly served with a summons on September 11, 2016, but he failed to appear at the trial. Testifying at the trial on September 21 were Kimberly and Trey's parents. At the end of the witness's testimony, the chancellor granted Kimberly a divorce on the ground of habitual drunkenness without further comment.

¶ 6. On October 4, 2016, the judgment of divorce was entered, as well as a qualified-domestic-relations order (QDRO), dividing Trey's retirement benefits from his roofing business. The chancellor explained that he distributed the marital property based upon lists presented to the court as exhibits that were signed by Trey's parents, but the record is void of analysis of the Ferguson factors. Kimberly was awarded $52,500 of Trey's employee pension plan. Trey was also ordered to pay $17,259.87 in credit-card debt and permanently restrained from having any contact with Kimberly.

¶ 7. On October 24, 2016, an appearance form was entered for Trey's new attorney, along with a motion for an extension to appeal and relief under Mississippi Rule of Civil Procedure 59. The extension was granted, and Trey timely filed his notice of appeal.

STANDARD OF REVIEW

¶ 8. The scope of review in domestic cases is limited to the substantial evidence rule. Jundoosing v. Jundoosing , 826 So.2d 85, 88 (¶ 10) (Miss. 2002). The findings of the chancellor will be upheld unless those findings were manifestly wrong or clearly erroneous. Id. However, this Court will not hesitate to reverse if the chancellor's decision is manifestly wrong, or the court applied an erroneous legal standard. Owen v. Owen , 928 So.2d 156, 160 (¶ 11) (Miss. 2006).

ANALYSIS

I. Divorce Based upon Habitual Drunkenness

¶ 9. Trey claims the chancery court erred in granting Kimberly a divorce on the ground of habitual drunkenness because the chancellor did not make specific findings of fact and conclusions of law. He also argues that Kimberly did not meet her burden of proving habitual drunkenness.

¶ 10. Habitual drunkenness is a fault-based ground for divorce provided by Mississippi Code Annotated section 93-5-1 (Rev. 2013). Similar to the ground of excessive drug use, to receive a divorce, the "plaintiff should prove that the defendant was habitually, or frequently, drunk, that the drinking adversely affected the marriage, and that the habit continued at the time of the divorce trial." Deborah H. Bell, Bell on Mississippi Family Law § 4.02[6] (2005); see Sproles v. Sproles , 782 So.2d 742, 747-48 (¶ 20) (Miss. 2001). The chancery court sits as the trier of fact and "has the primary authority and responsibility to assess the credibility of the witnesses." Sproles , 782 So.2d at 746 (¶ 12).

¶ 11. Although not specifically raised as a point of error by Trey, there was no error in the chancellor's proceeding with the trial in Trey's absence because Trey had been properly served with notice. Kimberly was still required, however, to prove the alleged ground, even in the absence of a defense by Trey. See Turner v. Turner , 73 So.3d 576, 583 (¶ 30) (Miss. Ct. App. 2011) (citing Lindsey v. Lindsey , 818 So.2d 1191, 1194 (¶ 13) (Miss. 2002) ). "If that is done, the chancellor has authority to grant the divorce despite the absence of the defendant." Carlisle v. Carlisle , 11 So.3d 142, 145 (¶ 12) (Miss. Ct. App. 2009) (quoting Stinson v. Stinson , 738 So.2d 1259, 1263 (¶ 15) (Miss. Ct. App. 1999) ).

¶ 12. Although Trey is correct that the chancellor failed to make specific findings of fact or conclusions of law regarding the grant of divorce based on habitual drunkenness, we do not find error. Trey failed to make any motion or complaint before the chancery court raising this issue. "A divorce judgment entered when a party fails to appear is 'a special kind of default judgment.' " Lee v. Lee , 78 So.3d 326, 328 (¶ 7) (Miss. 2012) (quoting Mayoza v. Mayoza , 526 So.2d 547, 548 (Miss. 1988) ). In order to obtain relief from such a judgment, absent parties must raise any requests or objections in a post-trial motion under Mississippi Rule of Civil Procedure 52, 59, or 60. Id. Although the "absent party" in Lee did not even file an answer, as Trey did, the same principles apply. Trey could have filed a motion to make or amend findings of fact under Mississippi Rule of Civil Procedure 52 and Mississippi Rule of Chancery Court 4.01, but he failed to do so. Further, Trey did not file a Rule 59 motion for a new trial or to alter or amend the judgment, or a Rule 60 motion for relief from judgment under the Mississippi Rules of Civil Procedure. The record is void of any attempt by Trey before, during, or after the judgment of divorce to request findings of fact regarding the grounds for divorce. Accordingly, we cannot find the chancery court erred in failing to make such findings when Trey did not request them.

¶ 13. Although the chancellor made no specific findings of fact, there was sufficient evidence provided at the trial in the form of testimony from Kimberly and Trey's parents to prove habitual drunkenness. Kimberly testified that during the last year of their marriage, while they were living in Boca Raton, Florida, Trey was drinking "a lot." She also related times when Trey discontinued drinking and had severe alcohol withdrawal symptoms, such as seizures and tremors. During one drinking-related incident in March 2015, Trey threw Kimberly against a wall and threatened to kill her and the dog, but she ran to the neighbors' home and spent the night. During another incident, Trey had a wreck and was charged with "enhanced DUI." After the wreck he could not find his vehicle and did not even know the county in which the incident occurred. After using Kimberly's vehicle to search for his truck, Trey came home drunk, carrying a bottle of vodka behind his arms. During this period, Kimberly described him as "out of control." She and a friend tried to "get him some help." They took him to a physician who told Trey "he needed to go to rehab"; however, Trey continued to drink. Kimberly left him when he became verbally and physically abusive.

¶ 14. Kimberly testified that Trey's parents and uncle attempted an intervention in Florida, but "it did not go well." Another time, Kimberly and her best friend arranged for Trey to attend a rehabilitation and detoxification facility. Trey agreed to go, but then he refused to stay. He called a taxi-cab and stopped by a liquor store on the way home. Trey agreed to return but again did not stay. He came home drunk, telling Kimberly he bought a car on her credit card. He never returned to rehab, and his parents brought him home to Mississippi from Florida.

¶ 15. Kimberly also moved back to Mississippi. She testified Trey continued to drink and take prescription narcotics. After he threatened to kill her, Kimberly obtained a protective order against him; however, Trey violated the order and was arrested. She described him during this time as "erratic and scary." Kimberly was able to testify that Trey was still drinking at the time of trial because recently he had been calling her friends in the early morning hours leaving incomprehensible messages.

¶ 16. Trey's father, Edward Speights Jr. (Edward Jr.), testified that Trey had been suffering from an "alcohol addiction" for the past two years, and was currently suffering from it. Trey lived in a camp house next to their home. Edward Jr. corroborated Kimberly's testimony about the family's intervention attempts. Edward Jr. confirmed Trey was "incapable of functioning." He did not know if Trey would ever again be agreeable to any sort of alcohol-addiction treatment. Trey's mother testified that she agreed with everything Edward Jr. stated.

¶ 17. This testimony was sufficient evidence to grant Kimberly a divorce on the ground of habitual drunkenness. It showed Trey's alcohol consumption was frequent, negatively impacted the marriage, and continued until the time of trial. Furthermore, the chancellor, as the trier of fact, was in the best position to determine the credibility of the witnesses. See Bowen v. Bowen , 982 So.2d 385, 395 (¶ 42) (Miss. 2008). The chancery court did not err in this regard.

II. Trey's Parents as "De Facto Attorneys"

¶ 18. Trey argues that the chancery court erred in allowing his parents to act as his "de facto" attorneys during the trial for the division of marital assets, violating his due-process rights. He accurately asserts that his parents are not qualified to practice law under Mississippi Code Annotated sections 73-3-2(2) or 73-3-31 (Rev. 2017), nor has he executed a power of attorney giving them such authority. For this reason, he claims the case should be reversed and remanded.

¶ 19. Trey's complaint is based upon lists of personal-property compiled by his parents that were to be attached to the judgment. At trial during the discussion of property division, since Trey was not present, Kimberly's attorney, Christopher Farris, confirmed that he had "discussed" with Trey's parents "a division of the marital estate." Farris then proceeded to discuss the details of the division. He mentioned handwritten lists of personal property which would be attached to the judgment as exhibits. The judgment also stated the personal-property distribution was "based off of lists presented to the court as Exhibits 1 and 2" signed by Kimberly and Trey's parents.

¶ 20. Trey's parents were present and participated in the trial as witnesses, but we do not find the chancery court improperly allowed Trey's parents to exercise authority over the property distribution, or that they acted as "de facto attorneys." Trey's parents did not "negotiate" the distribution of property, as Trey now contends. In fact, Trey's parents did not offer any testimony regarding the property distribution, only the lists offered through Kimberly's counsel. Trey's absence indicates he was either incapable or uninterested in participating in the trial, or he would have been present. In lieu of having absolutely no say in the property distribution, Trey's parents stepped forward and created lists of property belonging to each party to expedite the process. This issue is without merit.

III. Rule 8.05 Financial Disclosures

¶ 21. Trey contends that it was error for the chancellor to attempt to distribute the marital estate without requiring both parties to file financial disclosure forms under Uniform Chancery Court Rule 8.05. Trey contends that because of this failure, there was no information upon which the court could make a determination of marital and nonmarital assets, and a subsequent equitable division of the marital assets. We agree.

¶ 22. Rule 8.05 requires "each party in every domestic case involving economic issues and/or property division" to provide a "detailed written statement of actual income and expenses and assets and liabilities." The parties must submit their income-tax returns for the preceding year and a general statement of employment history and earnings from the inception of the marriage or from the date of divorce, depending on the type of action. The rule also states that financial statements are not necessary if excused by court order for good cause shown. "It is vital to the effective administration of justice in the domestic relations arena that chancellors undertake this task while in possession of accurate financial information." Trim v. Trim , 33 So.3d 471, 478 (¶ 16) (Miss. 2010).

¶ 23. At trial, no mention was made of Rule 8.05 forms. In her appellate brief, Kimberly states that the issue is without merit "because the parties had already exchanged financial affidavits during the discovery process." Yet, no Rule 8.05 forms are in the record, and there is no indication on the chancery-court docket that any financial forms were exchanged, filed, or excused. However, Trey does not suggest, and we do not find, that there was any fraudulent intent by either party in failing to comply with this rule.

¶ 24. Citing Luse v. Luse , 992 So.2d 659 (Miss. Ct. App. 2008), Kimberly argues that this issue is waived since Trey did not appear at the proceedings. We disagree. In Luse , the appellant, John Luse, argued that the chancery court erred in failing to require the parties to file Rule 8.05 statements; therefore, there was no documentation in the record regarding ownership of the property or any evidence justifying the court's division of property.

Luse , 992 So.2d at 664 (¶ 16). The chancellor had stated in her findings that because child support and alimony were not at issue, and John failed to appear, the chancery court waived the Rule 8.05 disclosures. Id. at (¶ 19). This Court found no error in that regard, and that John, in failing to defend the suit in the chancery court, was attempting to do so on appeal, which was improper. Id. at (¶¶ 18-19).

¶ 25. However, Luse is distinguishable. While John "never responded to the complaint or entered an appearance in the court," here, Trey took the actions of hiring counsel and timely answered the complaint, but he did not appear further. Id. at 660 (¶ 3). Therefore, we cannot say that Trey waived this issue. Because we are reversing and remanding on the property division, as explained below, on remand the chancery court should require both parties to complete and file Rule 8.05 financial forms.

IV. Property Division

¶ 26. Trey contends that the chancery court erred in failing to make findings of fact regarding the equitable distribution of the marital property under the Ferguson factors. We agree.

¶ 27. "To equitably divide property, the chancellor must: (1) classify the parties' assets as marital or separate, (2) value those assets, and (3) equitably divide the marital assets [based upon the Ferguson factors]." Anderson v. Anderson , 174 So.3d 925, 929 (¶ 8) (Miss. Ct. App. 2015). Although the chancellor need not evaluate every Ferguson factor, the chancellor must consider the factors relevant to the case, on the record, in every case. Sproles , 782 So.2d at 748 (¶ 25) ; Heimert v. Heimert , 101 So.3d 181, 187 (¶ 24) (Miss. Ct. App. 2012) (citing Lowrey v. Lowrey , 25 So.3d 274, 280 (¶ 7) (Miss. 2009) ). The policy consideration behind this requirement is "not only essential for appellate purposes," but to provide trial courts "a checklist to assist in the accuracy of their rulings ... [and to] reduce[ ] unintended errors that may affect the court's ultimate decision. The absence of an analysis of these factors and failure to apply the law to the facts at hand create error." Id.

¶ 28. Trey is correct that there were no findings of fact by the chancery court regarding the distribution of marital assets. There was no discussion about which assets were marital, and the record is devoid of any mention of the Ferguson factors. Kimberly argues that these findings were not necessary because Trey did not appear, citing Luse in support. Again, we find Luse distinguishable because Trey actually did answer the complaint and denied Kimberly's allegations regarding accumulation and division of marital property. Although the court was entitled to proceed with trial because Trey did not appear, the court was still required to make the necessary findings for the property distribution.

CONCLUSION

¶ 29. We affirm the grant of divorce to Kimberly on the ground of habitual drunkenness. However, we reverse and remand on the issue of property distribution, in order for the parties to file Rule 8.05 financial disclosures, and for the chancellor to make specific findings of fact and conclusions of law consistent with Ferguson .

¶ 30. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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

      Ferguson v. Ferguson , 639 So.2d 921 (Miss. 1994).

      Both the trial transcript and the judgment of divorce inaccurately state that the trial was held on August 21, 2016, which was a Sunday. Trey explains in his appellate-reply brief that he moved the chancery court to correct this clerical error, which was so ordered.

      Trey offers no reason for his failure to appear.

      These exhibits were not included in the record.

      Trey responds that "there is no proof he received the judgment timely" in order to file a post-trial motion within the ten-day deadline. However, there is no proof that he did not receive a copy of the judgment within ten days of its entry. This argument is without merit.

      These exhibits were not attached to the judgment or made a part of the record.