author: COLEMAN, JUSTICE, FOR THE COURT: MAXWELL, JUSTICE, SPECIALLY CONCURRING: KITCHENS, PRESIDING JUSTICE, DISSENTING:

text:
    Roger Dale LATHAM v. Michele Ann LATHAM
    NO. 2017-CA-00856-SCT
    Supreme Court of Mississippi.
    January 17, 2019
    ATTORNEY FOR APPELLANT: DAVID BRIDGES
    ATTORNEY FOR APPELLEE: MARC EDWARD BRAND, JACKSON
    BEFORE RANDOLPH, P.J., COLEMAN AND CHAMBERLIN, JJ.
   COLEMAN, JUSTICE, FOR THE COURT:

¶1. Michele Ann Latham and Roger Dale Latham divorced on February 5, 2016. On March 24, 2017, Michele filed a petition for contempt against Roger, claiming that he had failed to comply with the divorce judgment. After a hearing, Chancellor John S. Grant III found Roger in constructive criminal contempt for failing to comply with several terms of the divorce judgment. Roger appeals, arguing that the chancellor erred because he did not recuse himself before finding Roger in constructive criminal contempt.

¶2. Because Roger raises the argument for the first time on appeal, it has been waived. Accordingly, the Court affirms the chancellor's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

¶3. On February 5, 2016, the chancellor granted Roger and Michele a divorce based on irreconcilable differences. On March 24, 2017, Michele filed a petition for contempt against Roger, asserting that he had failed to comply with several obligations of the marital dissolution agreement, which had been incorporated in the final divorce judgment. Michele requested that the chancellor find Roger in civil and criminal contempt. Roger was served with a Mississippi Rule of Civil Procedure 81 summons, and a hearing was set for June 12, 2017, on the petition for contempt. Roger did not file response to the petition for contempt; rather, he filed a motion for a continuance because he had a cruise vacation scheduled. The chancellor denied the motion for a continuance. Roger did not appear for the hearing.

¶4. At the hearing, Michele called three witnesses to testify in support of her petition for contempt. Michele also testified. Michele requested that the chancellor incarcerate Roger for his violations of the divorce judgment. Roger's attorney called one witness in his defense. After both parties rested, the chancellor found Roger in civil contempt and criminal contempt because he had failed to comply with certain obligations of the marital dissolution agreement. On June 14, 2018, the chancellor entered a judgment of contempt and ordered Roger to comply with certain terms of the marital dissolution agreement. The chancellor also ordered Roger incarcerated for seventy-two hours, regardless of whether he complied with the obligations set out in the order.

¶5. Roger appeals, but does not challenge the chancellor's finding of civil contempt. Furthermore, Roger does not dispute that he was guilty beyond a reasonable doubt of constructive criminal contempt; rather, Roger raises the following sole argument on appeal: "The Chancellor erred when he did not recuse himself before finding that Roger was in constructive, criminal contempt."

STANDARD OF REVIEW

¶6. Roger appeals solely from the chancellor's finding of criminal contempt. Typically, the Court reviews criminal contempt matters ab initio and determines from the record whether the alleged contemnor is guilty of contempt beyond a reasonable doubt. Dennis v. Dennis , 824 So.2d 604, 608 (¶ 7) (Miss. 2002). However, as previously noted, Roger does not challenge the contempt finding; rather, Roger raises the sole issue of whether the Chancellor erred by not recusing before finding Roger in constructive criminal contempt.

¶7. "The decision to recuse or not to recuse is one left to the sound discretion of the trial judge, so long as he applies the correct legal standards and is consistent in the application." Tubwell v. Grant , 760 So.2d 687, 689 (¶ 7) (Miss. 2000) (quoting Collins v. Joshi , 611 So.2d 898, 902 (Miss. 1992) ). The Court applies a de novo standard when reviewing procedural issues raising questions of law. Corr v. State , 97 So.3d 1211, 1213 (¶ 5) (Miss. 2012) (applying a de novo standard of review to a contempt matter when the issue was whether the chancery court did not recuse). Because the assignment of error is a question of law, the Court will apply a de novo standard of review.

DISCUSSION

¶8. Two forms of criminal contempt exist: direct and constructive. Dennis , 824 So.2d at 608 (¶ 10). "Direct contempt occurs in the presence of the court and may be dealt with immediately." Id. In contrast, constructive, or indirect, contempt occurs outside the presence of the court. Id. Here, the parties agree that the chancellor found Roger in constructive criminal contempt because his contemptuous conduct had occurred outside the presence of the chancellor. Roger does not dispute that he was guilty of criminal contempt beyond a reasonable doubt; rather, Roger contends that before the chancellor had found him in constructive criminal contempt, he had been entitled to certain procedural safeguards, including the chancellor's recusal.

A. Recusal of the Chancellor

¶9. At the trial level, Roger did not object to the chancellor's presiding over the contempt hearing by way of a motion or otherwise. "We are not required to address issues that are not objected to at trial and preserved for appeal." Dennis , 824 So.2d at 611 (¶ 18). "The failure to seek recusal generally is considered implied consent to have the judge go forward in presiding over the case." Rice v. State , 134 So.3d 292, 299 (¶ 16) (Miss. 2014).

¶10. In Tubwell , defendant Robert Tubwell argued that the circuit court had erred by failing to recuse from the case sua sponte in light of its alleged prejudice against Tubwell. Tubwell , 760 So.2d at 688-89 (¶ 5). The Court held that Tubwell's argument was barred because Tubwell had raised the assignment of error for the first time on appeal and had failed to object or to file a motion asking for the circuit court to recuse. Id. at 689 (¶ 8). The Court explained that, "[w]here the party knew of the grounds for the motion or with the exercise of reasonable diligence may have discovered those grounds, and where that party does not move timely prior to trial, the point will be deemed waived." Id.

¶11. In In re Hampton , 919 So.2d 949, 952 (¶ 1) (Miss. 2006), an attorney failed to appear for a hearing and was found in criminal contempt by the circuit judge. On appeal, the attorney argued that the circuit judge should not have presided because he was impartial, biased, and had engaged in ex parte communications. Id. at 956-57 (¶ 27). The Court held that the failure to object or to move for recusal of the circuit judge who had heard the contempt charge resulted in waiver of the argument. Id. at 957 (¶ 27).

¶12. The ground that Roger asserts on appeal had warranted recusal was known prior to his contempt hearing. As such, Roger consented to the chancellor's ruling on Michele's petition for contempt. See Rice , 134 So.3d at 299 (¶ 16). Because Roger failed to object or to seek recusal of the chancellor at the trial level, we hold that his recusal argument has been waived. See In re Hampton , 919 So.2d at 956-57 (¶ 27) ; Tubwell , 760 So.2d at 689 (¶¶ 8-9).

¶13. The dissent suggests that Roger had no notice that he may be subject to the chancellor's finding of constructive criminal contempt. Notwithstanding the record support that Roger did have notice, we find noteworthy that Roger did not argue lack of notice at the contempt hearing, nor did Roger file a motion to set aside the finding of criminal contempt based on any new revelation that he had been subjected to criminal contempt by surprise. Furthermore, on appeal, Roger does not argue that he lacked notice that he might be found in constructive criminal contempt.

¶14. "One of the most fundamental and long established rules of law in Mississippi is that the Mississippi Supreme Court will not review matters on appeal that were not raised at the trial court level." Miss. Transp. Comm'n v. Adams ex rel. Adams , 197 So.3d 406, 416 (¶ 30) (2016) ; see also Whittington v. H.T. Cottam Co. , 158 Miss. 847, 130 So. 745, 749 (Miss. 1930) ("If th[e] [C]ourt will decide correctly the questions presented and briefed in cases, it will be doing well, without going out on a hunt for other questions.").

¶15. "Most importantly, [Roger] allowed the chancellor to adjudicate his rights." Dennis v. Dennis , 824 So.2d 604, 611 (¶ 18) (Miss. 2002) (holding that the contemnor waived claims of defective service and violation of due process when he objected for the first time on appeal). In Dennis , the Court enforced the well-established principle that

We are not required to address issues that are not objected to at trial and preserved for appeal. Caston v. State , 823 So.2d 473, 503 (Miss. 2002) (citing Gatlin v. State , 724 So.2d 359, 369 (Miss. 1998) ("If no contemporaneous objection is made, the error, if any, is waived."); Carr v. State , 655 So.2d 824, 832 (Miss. 1995) (appellate court is under no obligation to review an assignment of error when an objection was not made or when an objection was untimely) ). See also EEOC v. Local 28 of the Sheet Metal Workers Int'l Ass'n , 247 F.3d 333 (2d Cir. 2001) (contemnor waived claim that its due process rights were violated where it did not raise a due process argument until after court had rendered its decision); Peterson v. Highland Music, Inc. , 140 F.3d 1313 (9th Cir. 1998) (contemnor waived claim of due process violations where he failed to raise a due process objection before the court).

Dennis , 824 So.2d at 611 (¶ 18).

¶16. Even assuming Roger had raised lack of notice as an assignment of error on appeal, as the dissent now advocates, lack of notice remains subject to waiver. The Court has written that, "[w]here a party does not waive proper notice of a contempt action, we have reversed the contempt finding and remanded the matter to the chancery court." Hanshaw v. Hanshaw , 55 So.3d 143, 146 (¶ 9) (Miss. 2011). In In re Spencer , 985 So.2d 330, 340 (¶ 34) (Miss. 2008), the Court held that a contemnor waived her right to notice and specification of the charge against her because she did not raise an objection to her lack of notice or specification of the charges at the hearing on contempt and sanctions. The position advocated by the dissent suffers the same deficiency.

¶17. The reason why Roger has not raised lack of notice at any level is apparent from the record. Put simply, the record refutes the dissent's suggestion that Roger was not aware of the constructive criminal contempt charges pending against him. Michele's petition for contempt stated that the chancellor had previously entered an order on January 20, 2017, requiring compliance with the divorce judgment and warning that "failure to strictly comply with the terms of th[e] [o]rder shall be enforceable by the contempt powers of this [chancery c]ourt." "[T]he ability to punish for criminal contempt is derived from the inherent powers of the court." Purvis v. Purvis , 657 So.2d 794, 798 (Miss. 1994).

¶18. Michele's petition also included a request that "Roger suffer such punishment as th[e] [chancellor] deems reasonable and proper under the circumstances." (Emphasis added.) The dissent excludes Michele's specific request in its recitation of the petition's requests for relief. "Criminal contempt penalties ... are designed to punish the defendant for disobedience of a court order; punishment is for past offenses and does not terminate upon compliance with court order." Dennis , 824 So.2d at 608 (¶ 10). In Moulds v. Bradley , 791 So.2d 220, 225 (¶ 9) (Miss. 2001), the Court held that the record clearly supported the alleged contemnor's assertion that he was not provided any notice that he would be tried for criminal contempt because the petitioner's attorney had expressly requested that the alleged contemnor not be incarcerated. Unlike Moulds , in the case sub judice , Michele testified at the contempt hearing and specifically requested that the chancellor order that Roger be jailed as a consequence of his contempt.

¶19. Undoubtedly, Roger had notice that he had violated a term of the divorce judgment, which could only have been remedied by the chancellor's imposing a sanction of punishment so as to constitute constructive criminal contempt. For example, Michele's petition for contempt alleged, inter alia , that Roger was in contempt of the divorce judgment by staying overnight with a member of the opposite sex not related by blood or marriage to him in the presence of their minor children. After hearing the evidence, the chancellor found Roger guilty of the alleged conduct. Obviously, Roger could not have purged himself of the impermissible overnight stays, which the chancellor found had already occurred.

¶20. Roger's assignment of error is limited to whether our caselaw mandates that judges recuse sua sponte in every case involving constructive criminal contempt. For the foregoing reasons, the assignment of error has been waived. Had Roger properly preserved the issue, Justice Maxwell's well reasoned specially concurring opinion explains why sua sponte recusal is not mandatory in all constructive criminal contempt cases.

B. Michele's Request for Attorneys' Fees

¶21. The chancellor ordered Roger to pay $2,500 in attorneys' fees as part of the contempt judgment. Buried at the conclusion of Michele's brief is a one sentence request that the Court award her one-half of the attorneys' fees that had been awarded by the chancellor. Specifically, without any citation of authority and without any citation of the record, she writes, "Further, Appellee requests to be awarded one-half of the attorney's fees awarded by the trial court, or twelve hundred and fifty dollars ($1,250)."

¶22. When a prevailing party requests attorneys' fees on appeal, "[t]ypically, th[e] Court awards attorney fees on appeal in an amount equal to half the amount awarded at trial." Huseth v. Huseth , 135 So.3d 846, 861 (¶ 47) (Miss. 2014). Because such an award may not be fair and equitable in all cases, the Court has written that the "better practice" would be for a party seeking attorneys' fees on appeal "to file a motion in th[e] Court, supported by affidavits and time records that establish the actual fees expended on appeal." Hatfield v. Deer Haven Homeowners Ass'n, Inc. , 234 So.3d 1269, 1277 (¶ 30) (Miss. 2017).

¶23. While the Court has declared that the better practice would be for a party seeking attorneys' fees on appeal to file a motion in the Court, we now clarify that Rule 27(a) of the Mississippi Rules of Appellate Procedure requires it. Here, Michele did not file a motion requesting attorneys' fees on appeal; rather she buried a one sentence request in her brief. Such requests do not comport with the Mississippi Rules of Appellate Procedure. Rule 27(a) provides, in pertinent part,

(a) Content of Motions; Response. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, and shall set forth the order or relief sought. If a motion is supported by briefs, affidavits, or other papers, they shall be served and filed with the motion.

M.R.A.P. 27 (emphasis added).

¶24. Because Michele failed to make a viable request for relief under Rule 27, we decline to consider her request. While the Court has suggested that the better practice for a party seeking attorneys' fees on appeal is to file a motion pursuant to Rule 27(a), we hold that, henceforth, such requests must comply with Rule 27(a).

CONCLUSION

¶25. Because Roger waived his recusal argument by failing to raise it at the trial level, we affirm the chancellor's judgment. Because Michele failed to make a viable request for attorneys' fees on appeal, the Court declines to consider the request.

¶26. AFFIRMED .

RANDOLPH, P.J., BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. MAXWELL, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., COLEMAN, BEAM, CHAMBERLIN AND ISHEE, J J. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. WALLER, C.J., NOT PARTICIPATING.

MAXWELL, JUSTICE, SPECIALLY CONCURRING:

¶27. I agree with the majority that, by not requesting that the chancellor recuse, Roger has waived this issue on appeal. But given Roger's argument, I find it would be helpful to Roger-as well as the bench and bar-to explain why, in this particular constructive-criminal-contempt case, Roger had to request the chancellor recuse to preserve this issue.

¶28. Part of Roger's argument is that recusal could not be waived. He suggests it was the chancellor's duty to recuse sua sponte given the nature of the contempt. As Roger sees it, our caselaw mandates judges recuse in every case involving constructive criminal contempt. Roger's view hinges on his reading of two cases- Cooper Tire & Rubber Co. v. McGill , 890 So.2d 859, 868 (Miss. 2004), and In re Smith , 926 So.2d 878, 888 (Miss. 2006). He argues that, when read together, the cases "extend" the requirement to recuse sua sponte in any case involving constructive criminal contempt. But a closer look shows that neither case alters this Court's well-established standard for when a judge must recuse in a constructive-criminal-contempt case. Instead, both cases maintain that "[i]t is necessary for that individual to be tried by another judge in cases of constructive contempt where the trial judge has substantial personal involvement in the prosecution ." Smith , 926 So.2d at 888 (emphasis added) (quoting In re Williamson , 838 So.2d 226, 238 (Miss. 2002) ); see also Cooper Tire , 890 So.2d at 869.

¶29. In other words, it is not simply the nature of the contempt that mandates recusal.

Indeed, the constructive criminal nature of the contempt is just part of the inquiry. The judge must also have "substantial personal involvement in the prosecution" to trigger the due-process requirement that the matter be tried by another judge. Corr v. State , 97 So.3d 1211, 1215 (Miss. 2012) (quoting Graves v. State , 66 So.3d 148, 151 (Miss. 2011) ). "Examples of 'substantial personal involvement in the prosecution warranting recusal include cases where the trial judge acts as a 'one-man grand jury;' where the trial judge is 'instrumental in the initiation of the constructive-contempt proceedings;' and where the trial judge 'acts as prosecutor and judge.' " Id. (quoting Graves , 66 So.3d at 154 ). E.g. , Corr , 97 So.3d at 1215 (holding that the chancellor had substantial personal involvement because he initiated the contempt proceeding when he issued show-cause orders); In re Williamson , 838 So.2d at 238 (holding that the chancellor had substantial personal involvement because he was a material witness in the contempt proceeding).

¶30. Here, Roger does not even argue the chancellor had substantial personal involvement in the prosecution of the contempt proceeding-a proceeding admittedly initiated by his wife. Nor does the record support such a finding. So the chancellor was not required to recuse sua sponte . As the majority explains, recusal was discretionary. And the chancellor can hardly be said to have abused his discretion by not recusing when he was never asked to do so.

RANDOLPH, P.J., COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., JOIN THIS OPINION.

KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶31. Roger Dale Latham received no notice that he might be held in constructive criminal contempt, thus he had no reason to seek recusal of the trial judge. Therefore, I respectfully dissent.

¶32. The waiver rule does not and cannot apply when the defendant is without notice that he or she is at risk of being held in constructive criminal contempt, and no decision of this Court holds otherwise. Constructive criminal contempt proceedings address "actions [that] are committed beyond the presence of the court." Purvis v. Purvis , 657 So.2d 794, 797 (Miss. 1994). As such, and as noted by this Court in In re McDonald , 98 So.3d 1040, 1044 (Miss. 2012), defendants in constructive criminal contempt proceedings are "entitled to certain due-process safeguards, including the recusal of [the trial court] and notice of the specific criminal charges against them."

¶33. The majority relies on two decisions of this Court that are plainly distinguishable. The majority first cites this Court's opinion in Tubwell v. Grant for the proposition that Tubwell's failure to object to the judge's ruling on his case resulted in his waiving his recusal objection. Tubwell v. Grant , 760 So.2d 687 (Miss. 2000). However, Tubwell has nothing to do with a judge's exercise of his contempt powers without notice. The trial court dismissed the prisoner's complaint as frivolous and noted that the prisoner already had been barred by the United States District Courts from filing any additional petitions in the United States Court of Appeals for the Fifth Circuit. Id. On appeal, Tubwell asserted that the trial judge should have recused himself from deciding the issue on the merits. This Court held that because Tubwell had failed to object contemporaneously or to file a motion for the trial court to recuse, Tubwell had waived such an objection. Id. at 689. However, at no time was constructive criminal contempt an issue, nor was Tubwell found in contempt.

¶34. The majority also cites In re Hampton , 919 So.2d 949, 957 (Miss. 2006), which involved an attorney who filed a petition for a writ of prohibition and then failed to appear at the scheduled hearing. After the trial court asked the attorney why she had missed a hearing about which she repeatedly had been reminded, the attorney failed to take responsibility for her conduct and suggested that the trial court was to blame for the confusion. Id. at 953. As a result, Hampton was held in direct criminal contempt. Id. at 954. This case has no application to the present case because Hampton was found guilty of direct criminal contempt. Acts of direct criminal contempt "may be handled by the sitting judge instantly." Id. at 956 (quoting Terry v. State , 718 So.2d 1097, 1104 (Miss. 1998) ). In both In re McDonald , 98 So.3d 1040 (Miss. 2012), and Corr v. State , 97 So.3d 1211 (Miss. 2012), neither defendant sought the contemporaneous recusal of the trial court at the contempt hearing. Regardless, in both cases, this Court found that, because the matter concerned constructive criminal contempt, "the chancellor was required to recuse himself[.]" In re McDonald , 98 So.3d at 1045 ; Corr , 97 So.3d at 1215.

¶35. The only issue of which Roger Dale Latham had notice was civil contempt. As stated in Michele Ann Latham's Petition for Contempt,

13
Michele requests that Roger be adjudicated in contempt of this Court and that he shall suffer such punishment as this Court deems proper until he has purged himself of contempt.
....
14
....
Moreover, Roger's actions constitute willful and contumacious contempt of this Court, and, therefore, this Court should award Michele attorney's fees and all costs of court. Wherefore, premises considered, the Petitioner, Michele Ann Latham, prays that this her Petition for Contempt be received and filed and that upon a hearing hearof this Court will grant the following relief:
(c) require Roger to purge himself of contempt by abiding by the terms of this Court's January 20, 2017 Order;
(d) require Roger to purge himself of contempt by abiding by all of the terms of the provisions of the Judgment of Divorce and Martial Dissolution Agreement;
(e) require Roger to purge himself of contempt by paying Michele the $25,000 owed to her according to the terms of the Marital Dissolution Agreement;
(f) require Roger to purge himself of contempt by paying Michele her share of recovery from the BP claim;
(g) require Roger to purge himself of contempt by paying Michele his 65% of the minor children's medical, doctor, hospital, optical, counseling, dental, opthalmic, orthodontic, psychological, psychiatric, vision and prescription drug expenses which are not reimbursed by insurance.
....
(i) and for such other relief as which she may be entitled.

(Emphasis added.)

¶36. Civil contempt actions seek only to compel the contemnor to compliance with what he or she was ordered to do. "In civil contempt cases, the contemnor can discharge the contempt by 'paying the costs and expenses and doing what he had previously refused to do.' ... In other words, 'he carries the keys of his prison in his own pocket.' " Common Cause of Miss. v. Smith , 548 So.2d 412, 415 (Miss. 1989).

This principle was reinforced in Purvis , in which this Court held,

If the primary purpose is to enforce the rights of private party litigants, or to enforce compliance with a court order, the contempt is civil. One may be jailed or fined for civil contempt[;] however, the contemnor must be relieved of the penalty when he performs the required act.

Purvis , 657 So.2d at 796-97.

¶37. For indirect criminal contempt, we require notice of the charges, a statement of the specific conduct alleged to be contemptuous, and a hearing. Corr , 97 So.3d at 1216 ; Moulds v. Bradley , 791 So.2d 220, 225 (Miss. 2001) ("Without notice of [constructive] criminal contempt sanctions, [the accused's] due process rights were violated."); Purvis , 657 So.2d at 798 ("constructive contempt requires a specification of charges, notice and a hearing.")

¶38. Further, the transcript plainly shows that the judgment for constructive criminal contempt was the independent act of the trial court. Here, the chancellor's own comments at the contempt hearing reveal that his involvement was substantial. Upon finding Roger Dale Latham in criminal contempt, the chancellor explicitly stated his reasoning for doing so:

The Court: The Lathams have been litigating before this Court for quite some time . They were divorced in February of 2016, and they had a sizeable estate, but you see over here all people are the same.
...
The Court: It's very clear to this Court that Mr. Latham has demonstrated a cavalier attitude towards the judgments of this Court, and therefore, to the Court itself. It is without a doubt disconcerting to this Court when someone just obviously and for no good reason disobeys the judgment of this Court which has the force of law.

(Emphasis added.)

¶39. Upon being asked for clarification by defense counsel, the Chancellor clarified his reasoning for finding Roger in criminal contempt, as opposed to a lesser sentence:

[Defense]: If I may ask a question, Your Honor?
The Court: Yes, sir.
[Defense]: What I think I'm hearing you say is 72 hours in jail regardless? No matter what?
The Court: Regardless. No - no get out of jail free card. He goes immediately to the Rankin County jail for 72 hours. And if he comes back here having violated this Court's judgment again, I'm not going to be so lenient with him. He's going to spend ten days in full and he's probably going to get a good bit more.
[Defense]: Yes, sir.
The Court: I'm tired of this. There's no need in it. It has been ridiculous having to address all these issues which were so plainly stated in the prior judgments of this Court.

(Emphasis added.)

¶40. In matters of constructive criminal contempt, a trial judge's recusal is mandatory. As this Court held in Corr , "[w]e conclude that the contempt proceedings were for constructive [ ] criminal contempt, and, therefore, the chancellor was required to recuse himself from the contempt proceedings and issue Rule 81 process giving [the accused] notice of the criminal charges against them." Corr , 97 So.3d at 1216 ; see also In re McDonald , 98 So.3d at 1045 ("[T]he chancellor was required to recuse himself and to issue [ Rule 81 ] summonses to the [d]efendants giving them notice of the criminal contempt charges against them.").

¶41. For these reasons, I respectfully dissent.

KING, J., JOINS THIS OPINION.

      Michele had filed two previous petitions for contempt against Roger following the final judgment.

      In constructive criminal contempt cases "[w]here the judge whose court or order is offended has substantial personal involvement in the bringing and prosecution of the criminal contempt proceedings, he may not adjudge the defendant's guilt." Cook v. State , 483 So.2d 371, 376 (Miss. 1986). The Cook Court qualified its holding: "We do not wish here to be understood as saying that any personal involvement in initiating criminal contempt proceedings disqualifies a judge." Id. n.6. Under Cook , and as further explained in Justice Maxwell's specially concurring opinion, sua sponte recusal is not mandatory in all constructive criminal contempt cases.

      In the federal system, the Fifth Circuit Court of Appeals also has held that, "[f]or notice of criminal contempt to be valid, it should indicate the criminal nature of the proceeding." In re Rumaker , 646 F.2d 870, 873 (5th Cir. 1980).


source: Caselaw Access Project

author: CARLTON, J., FOR THE COURT:

license: Public Domain

text:
    Todd Michael CLAVERIE a/k/a Todd M. Claverie a/k/a Todd Claverie, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00433-COA
    Court of Appeals of Mississippi.
    March 13, 2018 Rehearing Denied October 2, 2018
    ATTORNEY FOR APPELLANT: TODD MICHAEL CLAVERIE (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Todd Michael Claverie appeals the Harrison County Circuit Court's denial of his motion for post-conviction relief (PCR), seeking to have his post-release supervision (PRS) reinstated based upon his "full acquittal" of a sexual-battery charge brought against him while he was on PRS. Claverie asserts, pro se, that: (1) his PRS should be reinstated because he was acquitted of the sexual-battery felony that served, in part, as the basis for his PRS revocation; and (2) even if he had violated other conditions of his PRS, the circuit court exceeded its authority under Mississippi Code Annotated section 47-7-37(5) (Rev. 2015) when it imposed the full remainder of the suspended portion of his sentence at the revocation hearing. Finding no error in the circuit court's denial of Claverie's PCR motion, we affirm. The record reflects sufficient evidence supporting the circuit court's authority to impose the remainder of Claverie's sentence under section 47-7-37.1 (Rev. 2015) and under 47-7-37(5)(b) for the commission of multiple technical violations.

STATEMENT OF FACTS

¶ 2. In December 2012, Claverie was indicted for possession of marijuana with the intent to transfer or distribute. On September 3, 2013, he pled guilty to that charge and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), suspended for time served, with three years' PRS pursuant to Mississippi Code Annotated section 47-7-34 (Rev. 2015). The order entered on September 3 set out specific terms and conditions of Claverie's PRS, including the condition that Claverie commit no offense against the laws of Mississippi or any other state or the United States.

¶ 3. Claverie was arrested and charged with sexual battery in January 2015. The State filed a petition to revoke his PRS on February 13, 2015, with an amended petition filed on February 23. In its revocation petition, the State itemized four PRS violations as follows:

Condition a: (Commit no offense against the laws of this state or any state of the United States). Offender was arrested by the Jackson County Sheriff's Department and charged with one count of sexual battery.
Condition d: (Report to supervising officer as directed). Offender missed reporting dates in the months of October, November, [and] December 2014 and January 2015.
Condition k: (Supervision Fees) Offender [is] in arrears of $160, offender missed payments for November, December 2014 & February 2015, but last payment was 1/7/15 for $60.
Conditions n & o: (Court Fines & Payments). Offender has a balance of $407.50; last payment was on 2-11-14 for $2[,]000.

Claverie waived his right to a preliminary PRS revocation hearing, and on April 20, 2015, a revocation hearing was conducted before the circuit court. Claverie was represented by counsel.

¶ 4. At the hearing, the circuit court first questioned Claverie on whether he admitted or denied the violations itemized in the State's revocation petition. Claverie, through counsel, admitted to being arrested for sexual battery as to condition (a). Claverie denied condition (d) (failing to report in October, November, and December 2014 and January 2015) because he claimed he was put on quarterly reporting. As for condition (k), failing to pay the $55 monthly supervision fee, the circuit court noted at the hearing that "[i]f you absconded, you're not paying [and] they're saying you owe some money to the probation field office." Continuing, the circuit court said that because Claverie denied he had failed to report, the court likewise took that to mean that Claverie also denied failing to pay his supervision fees. Claverie affirmed that interpretation, and thus denied that he violated condition (k). Claverie also denied any failure to pay court fines and costs (conditions (n) and (o) ), but testified that he had a remaining balance of $400 of a $2,400 fine.

¶ 5. The State then presented its case, first addressing Claverie's sexual-battery charge in violation of condition (a) of the PRS order. The State called Sergeant Kristin McElwain, a detective with the Jackson County Sheriff's Department who, at the time, was investigating Claverie's sexual-battery charge against the victim, H.T. She testified that her investigation began based on a report from school officials that H.T. had reported to her principal that she was being sexually assaulted by her stepfather, Claverie. The detective interviewed H.T., who told her that she was being sexually assaulted by Claverie beginning at the age of twelve, continuing until his arrest four years later, and including penetration beginning at age fourteen by penis and fingers along with fellatio and oral sexual battery. Additionally, the detective testified that she had spoken with eight witnesses who corroborated H.T.'s story, and she also had corroborating physical evidence. Sergeant McElwain also testified that she had interviewed another alleged victim, a former neighbor, who was present during the sexual assault at issue here. She then advised the circuit court that, at the time of the hearing, Claverie's case had been bound over to the Jackson County grand jury.

¶ 6. The State also addressed Claverie's denial of condition (d), that he missed reporting dates in October, November, and December 2014 and January 2015. Officer Rashad Conerly, with MDOC, testified that from his review of MDOC records he saw no evidence that Claverie had reported in any of the months at issue, nor was he informed that Claverie had been placed on quarterly probation. Additionally, Officer Conerly testified that even if Claverie had been reporting on a quarterly basis, Claverie would have been required to report during the four-month period from October 2014 to January 2015. If Claverie had reported, it would have been noted in MDOC's system, and there was no evidence that he had done so.

¶ 7. The State did not put on evidence relating to conditions (k), (n), or (o) at the revocation hearing, stating that Claverie had admitted to violating these "failure to pay" conditions. At the close of the State's case, Claverie offered no witnesses. He also offered no testimony or proof that he had paid the $55 monthly supervision fee to MDOC for the months of November and December 2014 and February 2015, as required under condition (k); nor did he offer any evidence to rebut the information in the State's February 23, 2015 revocation petition that Claverie had violated conditions (n) and (o) because he had not made the required $50 monthly payments on the court costs and fines that he owed since February 11, 2014.

¶ 8. The circuit court then called Claverie to the bench and explained that based on the evidence it heard relating to condition (a) (Claverie's sexual-battery charge) and the testimony regarding Claverie's failure to report as required under condition (d), there was a sufficient basis, by a preponderance of the evidence, to revoke Claverie's PRS. The circuit court imposed the original fifteen-year sentence, with credit for all time served, and entered its revocation order on April 22, 2015.

¶ 9. On October 7, 2015, the Jackson County grand jury returned a ten-count indictment setting forth the sexual battery and related charges against Claverie, including: five counts of sexual battery; two counts of touching a child with lustful purposes; two counts of tampering with a witness (charging that Claverie attempted to induce H.T.'s two half-sisters to falsely testify that H.T. said she lied about Claverie's actions against her); and one count of intimidating a witness (charging that Claverie sent intimidating and threatening messages to H.T.).

¶ 10. On August 5, 2016, a jury found Claverie guilty of three felonies-two counts of tampering with a witness and one count of intimidating a witness, H.T. The State nol prossed one count of sexual battery against Claverie, and the jury acquitted Claverie of the other sexual-battery/lustful-touching charges. Claverie was sentenced to seven years in MDOC custody. The sentencing order was entered on September 15, 2016.

¶ 11. On January 11, 2017, Claverie filed a five-sentence pleading styled "Brief of the Appellant," requesting "post-conviction relief" based only upon his "full acquittal [of] the false allegations made against him" regarding the sexual-battery charge. Claverie attached to his PCR motion the following exhibits: (A) the entry of the nolle prosequi as to Count IV only (the sexual-battery charge that he penetrated H.T.'s vagina with his tongue) and the jury verdict from the trial on the sexual-battery and related charges; and (B) the transcript of the April 20, 2015 revocation hearing. Claverie's PCR motion was unsworn.

¶ 12. By order of the circuit court, the State filed a response to Claverie's PCR motion and attached to that response the following exhibits: (A) the ten-count indictment returned on October 7, 2015, delineating the sexual-battery and other related charges against Claverie; and (B) the sentencing order entered September 15, 2016, following Claverie's sexual-battery trial, together with the entry of nolle prosequi as to Count IV only.

¶ 13. On March 6, 2017, the circuit court entered a detailed order denying Claverie's PCR motion. The circuit court judge that conducted Claverie's revocation hearing was the same judge that ruled on Claverie's PCR motion, and he specifically noted in his order that he had conducted a full evidentiary hearing on April 20, 2015, on Claverie's alleged PRS violations. In its order denying Claverie's PCR motion, the circuit court summarized Sergeant McElwain's testimony at the revocation hearing regarding her investigation of the sexual-battery charge against Claverie; and the circuit court also noted the testimony of the MDOC officer "who testified that Claverie missed his required reporting dates in the months of October, November, [and] December of 2014 and January of 2015."

¶ 14. Regarding Claverie's subsequent acquittal on the sexual-battery charge, the circuit court observed that although a jury acquitted Claverie on this charge, which "served, in part, as the basis of the Amended Petition for Revocation[,] Claverie was, however, convicted of other felony charges that post-dated his revocation hearing but stemmed from the sexual[-] battery charge at issue here."

¶ 15. Based upon "a thorough review of the record in this case," the circuit court denied Claverie's PCR motion, noting that "[a]lthough Claverie was subsequently acquitted of the felony charge that served, in part, as the basis of the Amended Petition, the State offered sufficient proof at the revocation hearing that Claverie violated the terms and conditions of his [PRS] as outlined in the Amended Petition, which included violations other than the felony charge." The circuit court cited legal authorities supporting its decision, observing that "[e]vidence for revocation of probation does not have to be beyond a reasonable doubt. Ray v. State , 229 So.2d 579 [, 581] (Miss. 1969) ; Morgan v. State , 995 So.2d 787 [, 790 (¶ ]9) (Miss. Ct. App. 2008)." Continuing, the circuit court held that "[b]ecause of this lower evidentiary standard applicable in revocation hearings, Claverie's later acquittal at trial does not per se preclude his revocation stemming from the acts constituting the same crimes. Elkins v. State , 116 So.3d [185, 188 ¶ ]12 (Miss. Ct. App. 2013) ; see also Moore v. Ruth , 556 So. 2d [1059, 1061-62 (Miss. 1990) ]."

¶ 16. Claverie appealed pro se on March 23, 2017. He argues on appeal that: (1) his PRS should be reinstated because he was acquitted of the sexual-battery felony that served, in part, as the basis for the State's revocation petition; and (2) even if he had violated other conditions of his PRS, the circuit court exceeded its authority under section 47-7-37(5) when it imposed the full remainder of the suspended portion of his sentence at the revocation hearing.

STANDARD OF REVIEW

¶ 17. "A circuit court's denial of post-conviction relief will not be reversed absent a finding that the court's decision was clearly erroneous." Elkins v. State , 188 So.3d 613, 615 (¶ 7) (Miss. Ct. App. 2016). "But when issues of law are raised, the proper standard of review is de novo. Id.

DISCUSSION

I. Unsworn PCR Motion

¶ 18. In its appellee's brief, the State asserts that Claverie's PCR motion was properly denied because his motion was unsworn, in violation of several requirements under Mississippi Code Annotated section 99-39-9(1) and (3) (Rev. 2015). Specifically, Claverie's PCR motion did not have "[a] separate statement of the specific facts which are within the personal knowledge of the petitioner and which shall be sworn to by the petitioner" (see § 99-39-9(1)(d) ), nor was the motion "verified by the oath of the petitioner" (see Miss. Code Ann. § 99-39-9(3) (Rev. 2015) ).

¶ 19. In reply, Claverie acknowledged that his motion was unsworn and attached a sworn version of his PCR motion to his appellant's reply brief. Claverie also noted in his reply that the circuit court did not deny his PCR motion on this basis. He further asserts that the circuit court was obligated to inform him of the deficiencies in his motion to allow him to fix it and proceed with his motion.

¶ 20. The State cites Hooghe v. State , 187 So.3d 682 (Miss. Ct. App. 2016), in support of its argument that dismissal is appropriate here. There the movant filed an unsworn PCR motion, and the circuit court dismissed it pursuant to Mississippi Code Annotated section 99-39-11(2) (Rev. 2015) because "it plainly appear[ed] that [Hooghe was] not entitled to any relief[.]" Hooghe , 187 So.3d at 682-83 (¶ 3). We affirmed, without prejudice, "so that Hooghe [could] refile a procedurally proper PCR motion with the circuit court within the applicable statute of limitations." Id. at 682 (¶ 1). In so holding, we observed that "[a]lthough this Court has often acknowledged that meritorious claims of pro se petitioners will not be avoided based on inartfully drafted pleadings, we have instructed that petitioners, even if proceeding pro se, must comply with the dictates of section 99-39-9(1)(d)-(e)." Hooghe , 187 So.3d at 683 (¶ 5). In this case, we need not reach this issue because we find no error in the circuit court's denial of Claverie's PCR motion without an evidentiary hearing.

II. Assertions in Claverie's PCR Motion

¶ 21. Claverie requested post-conviction relief in the circuit court based only upon his "full acquittal [of] the false allegations made against him" regarding the sexual-battery charge. He makes the same argument on appeal, asserting that his PRS should be reinstated because he was acquitted of the sexual-battery felony that served, in part, as the basis for the circuit court's revocation order. We disagree, and for all the reasons below affirm the circuit court's denial of Claverie's PCR motion.

a. Evidentiary Hearing

¶ 22. Finding that Claverie failed to show he was entitled to any relief, the circuit court summarily denied his PCR motion without an evidentiary hearing. This Court recognizes that a "circuit court may dismiss a PCR motion without an evidentiary hearing where 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." Lott v. State , 217 So.3d 791, 793 (¶ 7) (Miss. Ct. App. 2017) (quoting Pickle v. State , 115 So.3d 896, 899 (¶ 12) (Miss. Ct. App. 2013) ); see also Miss. Code Ann. § 99-39-11(2) (Rev. 2015).

¶ 23. In the light of the circuit court's detailed order denying Claverie's PCR motion, the extensive record reviewed by the circuit court, and the fact that the same circuit court judge who denied Claverie's PCR motion also conducted Claverie's revocation hearing, we find no error in the circuit court's decision to rule upon Claverie's PCR motion without an evidentiary hearing.

¶ 24. As addressed above, Claverie's PCR motion included the following exhibits in support of his argument that he had been acquitted on the sexual-battery charge that was one basis for his PRS revocation: (A) the entry of the nolle prosequi as to Count IV only (one of the five sexual-battery charges) and the jury verdict acquitting Claverie on the other sexual-battery/lustful-touching charges; and (B) the transcript of the April 20, 2015 revocation hearing.

¶ 25. Upon review of Claverie's PCR motion, the circuit court took the further precaution of ordering the State to file a response to Claverie's PCR motion. See Miss. Code Ann. § 99-39-11(3). The State promptly complied. The State's response included these additional exhibits to complete the picture of what occurred after Claverie's revocation hearing: (A) the ten-count indictment returned on October 7, 2015, which included, in addition to the sexual-battery and lustful-touching counts, two counts of tampering with a witness and one count of intimidating a witness; and (B) the sentencing order entered September 15, 2016, showing that Claverie was found guilty and sentenced to seven years in the custody of MDOC on the three related felonies of tampering with a witness and intimidating a witness, H.T.

¶ 26. The circuit court's detailed order demonstrates its careful review of the record before it. Further, as we discuss below, we find that the circuit court's denial of Claverie's PCR motion is consistent with and supported by the evidence and testimony presented in the record. Accordingly, any challenge seeking to reverse the circuit court's decision based on the lack of an evidentiary hearing on Claverie's PCR motion is without merit. See Hunt v. State , 874 So.2d 448, 452 (¶¶ 12-14) (Miss. Ct. App. 2004).

b. Evidence Presented at the Revocation Hearing

¶ 27. This Court has consistently held "that the amount of evidence presented at a revocation hearing must be enough to show that the defendant more likely than not violated probation." Jackson v. State , 157 So.3d 105, 107-08 (¶ 13) (Miss. Ct. App. 2015) (quoting Younger v. State , 749 So.2d 219, 222 (¶ 13) (Miss. Ct. App. 1999) ) (internal quotation marks omitted). Regarding Claverie's acquittal on the sexual-battery charges, in particular, "a conviction is not necessary to revoke probation." Fairley v. State , 138 So.3d 280, 282 (¶ 4) (Miss. Ct. App. 2014). As we recognized in Elkins , "even when a parolee is acquitted in a criminal proceeding, this 'does not per se preclude parole revocation predicated upon facts and circumstances giving rise to the criminal charge.' " Elkins , 188 So.3d at 615 (¶ 8) (quoting Williams v. Castilla , 585 So.2d 761, 764 (Miss. 1991) ). We find that the circuit court did not err in denying Claverie's PCR motion and determining that sufficient information was before it to support the revocation of Claverie's suspended sentence.

i. Violation of condition (a)-Claverie's sexual-battery charge

¶ 28. Claverie asserts that his post-revocation acquittal of all sexual-battery-related charges is a "new fact" that justifies vacating his PRS revocation. We disagree. There is ample evidence in the record to support the circuit court's determination that Claverie more likely than not violated condition (a) of his PRS order, which required that he not commit any offense against state or federal law.

¶ 29. In its order denying post-conviction relief, the circuit court detailed Sergeant McElwain's testimony at the revocation hearing regarding her investigation of the sexual-battery charge against Claverie as follows:

At the [revocation] hearing, [this] [c]ourt heard testimony from a detective with the Jackson County Sheriff's Department who, at the time, was investigating Claverie's sexual[-]battery charge. The detective testified that the alleged victim had informed her that she was being sexually assaulted by Claverie, her stepfather, and that the abuse began at the age of twelve, continued until his arrest four years later, and included penetration beginning at age fourteen by penis and fingers along with fellatio and oral sexual battery. The detective further testified that she had since spoken with eight witnesses [who] corroborated the alleged victim's story, as did the physical evidence in the case. The detective also testified that she had interviewed another alleged victim, a former neighbor, who was present during the sexual assault at issue here. The detective advised the [c]ourt that, at the time of the hearing, Claverie's case had been bound over to the Jackson County grand jury.

¶ 30. The circuit court also reviewed post-revocation evidence that further supports its determination that Claverie had violated the terms and conditions of his PRS, including condition (a). The record contains Claverie's subsequent ten-count indictment, which included five counts of sexual battery and two counts of touching a child with lustful purposes. "An indictment is a determination by a grand jury that probable cause exists to hold the person indicted for trial." Bodne v. King , 835 So.2d 52, 59 (¶ 25) (Miss. 2003) (citing Stevenson v. State , 244 So.2d 30, 33 (Miss. 1971) ). The ten-count indictment, the evidence provided by Sergeant McElwain at the revocation hearing, and the subsequent related felony convictions further support the circuit court's determination that Claverie more likely than not violated condition (a) of his PRS order.

¶ 31. As the circuit court observed in its order denying Claverie's PCR motion, although a jury acquitted Claverie on the sexual-battery/lustful-touching charges, "Claverie was, however, convicted of other felony charges that post-dated his revocation hearing but stemmed from the sexual[-]battery charge at issue here." As described above, Claverie was convicted of two counts of witness tampering and one count of intimidating a witness. These felony convictions arose out of the same facts and circumstances as Claverie's sexual battery against H.T.; directly relate to that charge; and further demonstrate that reasonable relaxed grounds outside of Claverie's sexual-battery charge exist to support revoking his PRS. See Elkins , 188 So.3d at 615-16 (¶¶ 8, 13).

ii. Violation of condition (d)-failure to report to field probation officer in October, November, and December 2014 and January 2015

¶ 32. There likewise was sufficient evidence in the record before the circuit court to show that Claverie more likely than not violated condition (d) of the PRS order, which required that he report to his supervising officer as directed. As the circuit court stated in its order denying Claverie's PCR motion, the court had heard from an MDOC officer at the revocation hearing "who testified that Claverie missed his required reporting dates in the months of October, November, [and] December of 2014 and January of 2015." Claverie claims he was put on quarterly reporting during this time period, but as noted above, MDOC Officer Conerly testified that he was never informed that Claverie had been placed on quarterly probation. Additionally, even if Claverie had been reporting on a quarterly basis, Officer Conerly testified that Claverie would have been required to report during the four-month period from October 2014 to January 2015. There was no record that he did.

iii. Violation of condition (k)-failure to pay $55 per month supervision fees for November and December 2014 and February 2015

¶ 33. The record reflects that Claverie did not address condition (k) (requiring payment of a $55 monthly supervision fee) in his PCR motion, and on appeal merely asserts that he "was able to make [his supervision-fee] payment for the month of January [2015]." This information, however, is not helpful to Claverie because the violation he is cited for results from his failure to pay his monthly supervision fee for the months of November and December 2014 and February 2015. Claverie does not assert that he made these payments, and therefore he has waived any argument that he did not violate condition (k). In re B.A.H. , 225 So.3d 1220, 1239 (¶ 62) (Miss. Ct. App. 2016) (citing Sanders v. State , 678 So.2d 663, 670 (Miss. 1996) ).

¶ 34. We also find that there was sufficient evidence before the circuit court to find Claverie violated this condition of his PRS order. We acknowledge that at the revocation hearing Claverie denied violating condition (k), but this was in the context of his denial of his failure to report to his supervising officer under condition (d). As addressed above, the circuit court ultimately found that Claverie failed to meet his reporting requirements under condition (d). As the circuit court explained to Claverie at the revocation hearing, condition (k) "corresponds with condition [ (d) ]. If you absconded, you're not paying." Claverie did not testify or offer any evidence at the hearing that he had made the November and December 2014 and February 2015 supervision-fee payments at issue. We find that the circumstances described above, taken together, are sufficient to find that Claverie more likely than not violated condition (k) of the PRS order.

iv. Violation of conditions (n) and (o)-failure to pay fines and court costs

¶ 35. We also find that there was sufficient evidence in the record that Claverie more likely than not violated conditions (n) and (o) of the PRS order, which assessed fines and court costs against him for $2,400 and required that he pay $50 per month, beginning October 4, 2013, until all amounts were paid in full. Claverie testified at the April 20, 2015 revocation hearing that he "had a balance of $400 of a $2[,]400 fine," and he raises that same point in his appellant's brief. In the State's February 23, 2015 revocation petition, the State claimed that Claverie owed $407.50 and that his last payment had been on February 11, 2014. In short, the court costs and fines Claverie owed had not been paid in full, and Claverie had not made his monthly $50 payment for twelve months, in violation of conditions (n) and (o) of the PRS order.

III. Imposition of the Remainder of Claverie's Sentence

¶ 36. Claverie argues, in the alternative, that his acquittal on the sexual-battery-related charges means he did not violate condition (a) of the PRS order, and, from this, he argues that even if he had violated condition (d) and the payment conditions of that order, the circuit court exceeded its authority under section 47-7-37(5)(b) by reimposing the full remainder of the suspended portion of his sentence when it revoked his PRS.

¶ 37. We reject this argument on both procedural grounds and on the merits. First, Claverie did not raise this argument in his PCR motion, and has therefore waived it: "A petitioner who fails to raise an issue in his PCR motion may not raise that issue for the first time on appeal." Bass v. State , 174 So.3d 883, 885-86 (¶ 7) (Miss. Ct. App. 2015) (quoting Fluker v. State , 17 So.3d 181, 183 (¶ 5) (Miss. Ct. App. 2009) ) (internal quotation marks omitted); see Graham v. State , 204 So.3d 329, 334 (¶ 14) (Miss. Ct. App. 2016) ("Generally, a trial judge will not be found in error on a matter not presented to him for decision.").

¶ 38. Second, we find Claverie's argument lacks merit because, as set forth above, there is sufficient record evidence to support the circuit court's determination that Claverie more likely than not violated condition (a) of his PRS order, which required that he not commit any state or federal offense. Accordingly, the circuit court was authorized to impose the remaining portion of Claverie's suspended sentence. See Miss. Code Ann. § 47-7-37.1 ("[I]f a court finds by a preponderance of the evidence[ ] that ... a person under post-release supervision has committed a felony or absconded, the court may revoke his probation and impose any or all of the sentence.").

¶ 39. Third, as likewise addressed above, we also find that Claverie violated the other three conditions of his PRS order, namely: condition (d) (failure to report to his supervising officer); condition (k) (failure to pay his monthly $55 supervision fee); and conditions (n) and (o) (failure to pay his monthly $50 payments on the court costs and fines assessed against him). Accordingly, the circuit court was authorized to impose the remaining portion of Claverie's suspended sentence under section 47-7-37(5)(b). This statute delineates a court's authority when revoking probation for a "technical violation" and provides, in relevant part:

If the court revokes probation for a technical violation, the court shall impose a period of imprisonment to be served in either a technical violation center or a restitution center not to exceed ninety (90) days for the first technical violation and not to exceed one[-]hundred[-]twenty (120) days for the second technical violation. For the third technical violation , the court may impose a period of imprisonment to be served in either a technical violation center or a restitution center for up to one[-]hundred[-]eighty (180) days or the court may impose the remainder of the suspended portion of the sentence . For the fourth and any subsequent technical violation, the court may impose up to the remainder of the suspended portion of the sentence.

Id. (emphasis added). A "[t]echnical violation" is defined as "an act or omission by the probationer that violates a condition or conditions of probation placed on the probationer by the court or the probation officer." Miss. Code Ann. § 47-7-2(q) (Rev. 2015).

¶ 40. As the Mississippi Supreme Court has recently held, the proper interpretation of a "technical violation" in the context of section 47-7-37(5)"requires a finding of each separate violation of parole to be a separate and distinct technical violation." Walker v. State , 230 So.3d 703, 705-06 (¶¶ 10-13) (Miss. 2017) (addressing the same language in section 47-7-37(5)(a) ). Accordingly, under the plain language of the statute, because Claverie violated three other conditions of his PRS (in addition to condition (a) ), he committed three "technical violations," and thus the circuit court was within its authority to impose the remainder of the suspended portion of Claverie's sentence under section 47-7-37(5)(b). See Walker , 230 So.3d at 704-06 (¶¶ 3, 10-13) (affirming the circuit court's reinstatement of a defendant's sentence based on three violations of the defendant's conditions of parole); Cobbert v. State , 223 So.3d 822, 825 (¶¶ 6-7, 10) (Miss. Ct. App. 2017) (interpreting sections 47-7-37(5)(a) and 47-7-2(q) and holding that the plain language of the statute requires that each violation of a condition of parole is a "technical violation").

¶ 41. AFFIRMED.

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

      We substitute initials for the minor victim's name.

      To avoid repetition, we do not include the details of that summary here, but rather discuss the circuit court's order denying Claverie's PCR motion in further detail below.

      Mississippi Code Annotated section 99-39-11(2) (Rev. 2015) allows that "[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, the judge may make an order for its dismissal and cause the petitioner to be notified."

      In contrast, we have remanded cases for an evidentiary hearing on a movant's PCR motion challenging the validity of his revocation hearing where we had no record of the evidence the circuit court relied upon in summarily denying the movant's PCR motion. See , e.g. , Lott v. State , 217 So.3d 791, 793 (¶ 10) (Miss. Ct. App. 2017) ; Randle v. State , 177 So.3d 1164, 1166 (¶ 7) (Miss. Ct. App. 2015) (finding that an evidentiary hearing was required where there was no record providing information relied upon to revoke the PCR movant's parole and the circuit court made no findings whether the PCR movant received the appropriate due process at the revocation hearing); Elkins , 116 So.3d at 189 (¶¶ 14-15) (holding movant was entitled to an evidentiary hearing where the circuit court did not have the transcript of the PCR movant's revocation hearing and was provided no other documentary evidence it may have relied upon in denying the movant's PCR motion). As we discuss above, this is not the case here.

      The circuit court's revocation order was entered April 22, 2015, two days after the effective date of the passage of this statutory provision.

      As noted above, section 47-7-37(5)(b) provides, in relevant part, that "[f ]or the third technical violation , the court may impose a period of imprisonment to be served in either a technical violation center or a restitution center for up to one[-]hundred[-]eighty (180) days or the court may impose the remainder of the suspended portion of the sentence ." (Emphasis added).


author: TINDELL, J., FOR THE COURT:

text:
    Darius Santwain JONES a/k/a Darius S. Jones a/k/a Darius Jones, Sr. a/k/a Crip Crazy a/k/a Darius S. Jones, Sr. a/k/a Darius Jones, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00248-COA
    Court of Appeals of Mississippi.
    April 24, 2018 Rehearing Denied September 11, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, Jackson
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER, Jackson
    BEFORE LEE, C.J., BARNES AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. A Lauderdale County grand jury indicted Darius Jones on two felony counts. Count I charged Jones with possession of methamphetamine while in possession of a firearm. See Miss. Code Ann. §§ 41-29-139 (Supp. 2012) & 41-29-152 (Rev. 2013). Count II charged possession of a firearm as a convicted felon. See Miss. Code Ann. § 97-37-5(1) (Rev. 2014). A jury acquitted Jones of Count I but convicted him of Count II. The Lauderdale County Circuit Court then sentenced Jones as a habitual offender to ten years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for probation, parole, or early release and fined him $2,000.

¶ 2. On appeal from his conviction, Jones asserts the following issues: (1) there was insufficient evidence to support the verdict; (2) the verdict was against the overwhelming weight of the evidence; (3) his vehicle was illegally searched; and (4) the circuit court improperly instructed the jury on his stipulation that he was a convicted felon.

¶ 3. Finding no error, we affirm Jones's conviction and sentence.

FACTS

¶ 4. Around 8:30 p.m. on October 9, 2013, Meridian Police officers responded to a call about a large crowd gathered at a local apartment complex. By the time Officer Dustin Allen arrived at the scene, other officers had already handcuffed several individuals, who were seated on a curb. Officer Allen observed about eight to twelve people still standing around a vehicle in front of the apartment complex. Officer Allen testified the area was a high-crime area and that the individuals were "just loitering around the vehicle, being loud [and] boisterous [and] causing a disturbance." To ensure everyone's safety, the police officers separated the individuals and engaged them in conversation.

¶ 5. Officer Allen began to speak to Jones, who was not handcuffed but was standing by his vehicle. While talking to Jones, Officer Allen noticed a large-caliber firearm on top of a backpack in the driver's seat of Jones's vehicle. Concerned with officer safety due to the large crowd still around the vehicle, Officer Allen testified that he asked Jones for permission to enter the vehicle and secure the weapon. Jones denied owning the gun or having any knowledge of the gun's owner. Officer Allen testified, however, that Jones gave him the car keys and granted him permission to unlock the vehicle and secure the weapon. Officer Allen took the magazine out of the gun and unloaded a round from the chamber before securing the gun inside his own vehicle. According to Officer Allen, more than one bullet was inside the gun. At trial, the State entered the gun into evidence during Officer Allen's testimony. Officer Allen identified the weapon as a HiPoint .45-caliber semi-automatic handgun.

¶ 6. While retrieving the weapon, Officer Allen smelled an odor inside Jones's car. Based on his training and experience, Officer Allen identified the smell as marijuana. Officer Allen alerted Jones to the smell and asked for permission to further search the vehicle. Officer Allen testified that Jones consented to his request. Inside the backpack on the driver's seat, Officer Allen discovered a digital scale and two plastic sandwich bags that contained a crystal-like substance. Upon conducting a field test on the contents of one of the bags, Officer Allen determined the substance was methamphetamine.

¶ 7. After securing both the evidence and Jones, Officer Allen contacted Agent Christopher Peacock with the Mississippi Bureau of Narcotics. Following Jones's waiver of his rights, Agent Peacock and Officer Allen interviewed Jones about the items found in his car. Officer Allen testified that, although Jones had previously denied having any knowledge of the gun's owner, during the interview Jones claimed his mother owned the gun. Agent Peacock corroborated Officer Allen's testimony that Jones told them the gun belonged to his mother. Both law-enforcement officers further testified that Jones never suggested someone else had driven his car on the day of his arrest or that the backpack in the driver's seat belonged to someone else.

¶ 8. Jones's aunt, Carolyn Lewis, testified on behalf of the defense. Lewis stated that she received a phone call from Jones the evening of October 9, 2013. According to Lewis, she heard someone repeatedly ask Jones for permission to search his car, and she heard Jones repeatedly refuse to grant permission for the search. Lewis testified that she next heard the unknown person tell Jones to get up against the car, and then Jones asked what he had done wrong and why he was being handcuffed.

¶ 9. The jury also heard testimony from Jones's former girlfriend, Sophia Tell. Tell testified that she and Jones were dating on October 9, 2013, although they no longer dated at the time of the trial. According to Tell, she borrowed Jones's car for most of the day on October 9, 2013, to run errands with her friend, her friend's boyfriend, and her friend's children. After finishing the errands, Tell returned to the apartment complex that evening. Tell stated that she saw no backpack as she locked the car. After returning the car keys to Jones, Tell testified that she visited a relative for about thirty minutes to an hour. As she left the relative's apartment, Tell noticed the commotion at the apartment complex and saw "a lot of people" standing near Jones's car.

¶ 10. Tell testified that she owned the gun found in Jones's car. Contrary to Officer Allen's testimony that the gun was in plain view, Tell stated that she stored the gun out of sight underneath the driver's seat when she got into the car the morning of October 9, 2013. After leaving her relative's apartment that evening, Tell testified that she saw Jones, who was handcuffed and standing near his car, speaking to a police officer. According to Tell, she heard the officer ask for permission to search the car, and then she heard Jones refuse consent. After Jones's refusal, Tell stated that the officer reached into Jones's pocket, retrieved the car keys, and unlocked the car.

¶ 11. Jones also testified about the events of October 9, 2013. Jones stated that Tell borrowed his car keys the morning of October 9, 2013, and then she returned the keys that evening. According to Jones, he remained inside most of the day and played a video game with his cousin. That evening, however, Jones testified that he and some friends were standing near his car when someone yelled, "The officer is around the corner." Jones stated that, as police officers began to arrive, someone ran by his car and threw a gun on the ground. Jones testified that police officers then began to handcuff and search people.

¶ 12. According to Jones's testimony, an officer approached him and claimed to smell marijuana. Jones stated that he told the officer he did not smoke and that he had no marijuana in his possession. In response to the officer's request to search him, Jones said that he consented. However, Jones testified that he refused the officer's request to search his car because he had not been in the car the entire day, and he had no idea what might be inside the car.

¶ 13. Jones testified that the officer placed him in handcuffs and seated him on the curb before proceeding to search his car without consent. According to Jones, the officer never mentioned seeing a gun but instead wanted to know what was inside a backpack on the back seat of Jones's car. Jones testified that, upon finding the scale and two bags of drugs inside the backpack, the officer searched the car again and found the gun underneath the car seat. Although Jones testified that the gun belonged to Tell, he denied knowing the backpack's owner. Furthermore, Jones testified that he had no idea the gun, the backpack, or the backpack's contents were in his car. He further denied ever telling Officer Allen and Agent Peacock that the gun belonged to his mother.

¶ 14. After learning Jones was a convicted felon, the officers placed Jones into a patrol car. As the officers did so, Jones testified that they realized his phone was on an active call to his aunt. Jones stated that the officers took his phone and terminated the call. At the police station, Jones testified that he never gave a statement to Officer Allen and Agent Peacock and that Agent Peacock never asked him about a gun. Instead, Jones stated that Agent Peacock tried to get him to "set up somebody else on a bust charge[,]" and that, when Jones refused, Agent Peacock threatened to charge him "with everything."

¶ 15. After the defense rested, the State recalled Officer Allen as a rebuttal witness. During rebuttal, Officer Allen reiterated that, while talking to Jones on October 9, 2013, he observed a gun in plain sight in Jones's car. Prior to seeing the gun, Officer Allen testified that he had no reason to search Jones's car. Officer Allen further testified that he received Jones's permission before searching the car. After returning to the police station, Officer Allen stated that he and Agent Peacock interviewed Jones. Officer Allen testified that Jones gave a statement during the interview, and he denied that either he or Agent Peacock threatened Jones or made promises to induce Jones to waive his rights.

¶ 16. The jury acquitted Jones of Count I, possession of methamphetamine while in possession of a firearm, but found him guilty of Count II, possession of a firearm as a convicted felon. The circuit court sentenced Jones as a habitual offender to ten years in MDOC's custody without eligibility for probation, parole, or early release and fined him $2,000. Jones filed an unsuccessful motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Aggrieved, Jones appeals.

DISCUSSION

I. Sufficiency of the Evidence

¶ 17. Jones contends insufficient evidence supported his conviction for possession of a firearm as a convicted felon. When reviewing a challenge to the legal sufficiency of the evidence:

[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. Where the facts and inferences point in favor of the defendant on any element of the offense with sufficient force that reasonable jurors could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is to reverse and render. However, if reasonable fair-minded jurors in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient.

Topps v. State , 227 So.3d 1177, 1180 (¶ 5) (Miss. Ct. App. 2017) (internal citations and quotation marks omitted).

¶ 18. As discussed, Count II of Jones's indictment charged him with being a convicted felon in possession of a firearm in violation of section 97-37-5(1). The State was required to prove that, on the date charged in the indictment, Jones (1) possessed a firearm and (2) had been previously convicted of a felony. See Rogers v. State , 130 So.3d 544, 548 (¶ 18) (Miss. Ct. App. 2013). Because Jones lacked actual possession of the gun found in his car, the State pursued a conviction under the theory of constructive possession. To meet its evidentiary burden, the State had to present "sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular [item] and was intentionally and consciously in possession of it." Glidden v. State , 74 So.3d 353, 355 (¶ 5) (Miss. Ct. App. 2010) (citation omitted). Proximity alone, without the presence of other incriminating circumstances, is insufficient to establish constructive possession. Id. Instead, the State had to show that Jones had dominion over or control of the gun. Id.

¶ 19. Mississippi caselaw gives the jury the responsibility of resolving questions of conflicting evidence and witness credibility. Topps , 227 So.3d at 1181 (¶ 13). After hearing the testimony in the present case, the jury clearly resolved any such conflicts in favor of the State. The trial testimony reflected no dispute as to the following facts: (1) while at the apartment complex, Officer Allen discovered a gun inside a vehicle; (2) Jones owned the car in which the gun was found; (3) Jones was standing in the vicinity of his car when Officer Allen approached him; (4) Jones's car was locked when Officer Allen arrived; (5) Jones had the keys to the locked car in his possession; and (6) Jones was a convicted felon.

¶ 20. Officer Allen testified that, while talking to Jones beside Jones's car, he observed a gun in plain sight. Officer Allen stated the gun was clearly visible on top of a backpack in the driver's seat, and Jones had sole possession of the keys to the locked car. According to Officer Allen, Jones claimed at the scene that he neither owned the gun nor knew to whom the gun belonged. However, Officer Allen testified that, during a subsequent interview with Agent Peacock and Officer Allen, Jones alleged the gun belonged to his mother. Agent Peacock corroborated Officer Allen's testimony that Jones told them his mother owned the gun. Both law-enforcement officers further testified that Jones never asserted during the interview that Tell or anyone else had driven his car that day.

¶ 21. Reviewing the evidence in the light most favorable to the State, we conclude that reasonable fair-minded jurors could have found the State proved the essential elements of constructive possession beyond a reasonable doubt. See Topps , 227 So.3d at 1180 (¶ 5). Because a rational trier of fact could have concluded that Jones exercised dominion or control over the gun found in his nearby locked car, we find sufficient evidence supported the verdict. We therefore find no merit to this assignment of error.

II. Weight of the Evidence

¶ 22. Jones also asserts that the verdict was against the overwhelming weight of the evidence. When reviewing a challenge to the weight of the evidence, this Court disturbs the verdict only if "it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Roberts v. State , 229 So.3d 1060, 1068 (¶ 29) (Miss. Ct. App. 2017). Furthermore, we review the evidence in the light most favorable to the verdict. Id.

¶ 23. Through Officer Allen's testimony, the State presented evidence that Jones, a convicted felon, was standing next to his car when Officer Allen approached and observed a gun in plain sight on the driver's seat. Officer Allen's testimony further reflected that the car was locked and that Jones had the keys to the car in his possession. Although the defense presented a different version of events, as previously discussed, the jury resolves any issues of witness credibility and conflicting testimony. See Topps , 227 So.3d at 1181 (¶ 13) ("Conflicting testimony does not evince overwhelming evidence; where the verdict turns on the credibility of conflicting testimony and the credibility of the witnesses, it is the jury's duty to resolve the conflict." (quoting Brown v. State , 995 So.2d 698, 702 (¶ 13) (Miss. 2008) ) ).

¶ 24. After reviewing the evidence in the light most favorable to the verdict, we cannot say that allowing the verdict to stand would sanction an unconscionable injustice. As a result, we find this issue lacks merit.

III. Illegal Search

¶ 25. Jones next argues that Officer Allen illegally searched his car and seized the gun found inside the car. According to Jones, he never consented to the search, and Officer Allen lacked probable cause or reasonable suspicion to conduct the search. This Court reviews de novo the trial court's determinations of reasonable suspicion and probable cause. Gillett v. State , 56 So.3d 469, 482 (¶ 21) (Miss. 2010). However, our "de novo review is limited to the trial court's decision based on historical facts reviewed under the substantial evidence and clearly erroneous standards." May v. State , 222 So.3d 1074, 1078 (¶ 6) (Miss. Ct. App. 2016) (internal quotation marks omitted).

¶ 26. As the May court explained:

The Fourth Amendment of the United States Constitution and Article 3, Section 23 of the Mississippi Constitution guarantee a person's right to be free from unreasonable searches and seizures. As a general rule, our state and federal Constitutions prohibit searches without a valid warrant unless an exception applies. The State bears the burden to show that a warrantless search falls under one of the permissible exceptions. If no exception is found, the evidence seized as a result of the search should be suppressed as fruit of the poisonous tree. A search is not unreasonable when it is based on probable cause.
One exception to the warrant requirement is consent. Also excepted from the warrant requirement are items within a police officer's plain view or plain feel.
....
To provide an exception to the warrant requirement, a person's consent to search must be knowing and voluntary. For consent to be given knowingly, the person searched must be aware he has the legal right to refuse. Voluntariness is determined from the totality of the circumstances. Factors to consider are[:]
[W]hether the circumstances were coercive, occurred while in the custody of law enforcement or occurred in the course of a station[-]house investigation. The court must also look to the individual's maturity, impressionability, experience[,] and education. Further, the court should consider whether the person was excited, under the influence of drugs or alcohol, or mentally incompetent. If the consent occurred while the defendant was being generally cooperative, the consent is more likely to be voluntary ....

Id. at 1078-79 (¶¶ 7-9) (internal citations and quotation marks omitted). "[T]he trial judge ... is best able to adjudge the credibility of those testifying[, and w]hen the testimony on the issue is conflicting, as indeed it usually is, the trial court is the principal evaluator of credibility." Milliorn v. State , 755 So.2d 1217, 1221 (¶ 13) (Miss. Ct. App. 1999) (citation omitted).

¶ 27. Based on the totality of the circumstances, we find substantial credible evidence supports the circuit court's determination that Jones knowingly and voluntarily consented to Officer Allen's request to unlock the car and retrieve the gun. Officer Allen testified that, by the time he arrived at the apartment complex the evening of October 9, 2013, other officers had arrived and handcuffed several individuals, who were seated on a curb. However, Officer Allen testified that about eight to twelve people who were not handcuffed were still standing around a vehicle. According to Officer Allen, the area was a high-crime area, and these individuals were being loud and boisterous and creating a disturbance. Still concerned with everyone's safety, the officers separated these remaining individuals and began to talk to them. While speaking to Jones next to Jones's car, Officer Allen testified he observed a large-caliber handgun in plain sight on the driver's seat. Because he remained concerned about officer safety, Officer Allen asked Jones for permission to enter the car and secure the gun.

¶ 28. Officer Allen's testimony reflected that Jones was generally cooperative with his request to retrieve the gun. Officer Allen stated that Jones, who was not handcuffed during their exchange, voluntarily offered his car keys so that Officer Allen could enter the locked car. The record also reflected no evidence that Jones was in any way impaired at the time of the conversation, and Jones raises no such argument on appeal. In fact, both Officer Allen and Agent Peacock testified that Jones specifically told them a medical condition prevented him from consuming alcohol or drugs. Furthermore, as the circuit court noted in its bench ruling, Jones possessed experience and familiarity with the criminal-justice system due to his prior felony conviction.

¶ 29. Because substantial credible evidence supports the circuit court's determination that Jones consented to Officer Allen's search, we find this assignment of error lacks merit.

IV. Jury Instruction

¶ 30. Jones asserts the circuit court improperly instructed the jury regarding his stipulation that he had a prior felony conviction. At trial, without any objection from the defense, the State asked the circuit court to give the stipulation to the jury after opening statements. Thus, following opening statements, the circuit court instructed the jury that Jones "does stipulate that he has at least one prior felony conviction prior to the date of October the 9th, 2013."

¶ 31. During the jury-instruction conference, the State submitted proposed instruction S-8A. As amended, the jury instruction read:

The [c]ourt instructs the [j]ury that the State and the Defendant have agreed and stipulated that the [D]efendant had at least one valid felony conviction prior to the date of the charged offense in this case; therefore, you shall consider that fact to have been proven beyond a reasonable doubt as to Count II[, possession of a firearm by a convicted felon].

Objecting to the proposed instruction, Jones's attorney argued that he had stipulated to the existence of a fact but had never agreed to relieve the State of its burden to prove an element of the crime beyond a reasonable doubt. After considering the parties' arguments, the circuit court found the defense had clearly stipulated to Jones's prior felony conviction as part of its trial strategy. The circuit court therefore granted proposed jury instruction S-8A.

a. Peremptory Instruction

¶ 32. On appeal, Jones renews his trial objection that instruction S-8A amounted to a peremptory jury instruction and improperly shifted the State's burden of proof on an essential element of the crime. As a result, Jones asks this Court to reverse his conviction.

¶ 33. In Rogers , the grand jury indicted R.L. Rogers for armed robbery and possession of a firearm as a convicted felon. Rogers , 130 So.3d at 546 (¶ 6). To avoid any prejudicial effect from the jury learning that Rogers was a convicted felon, the defense stipulated that Rogers had a prior felony conviction. Id. The parties agreed that, rather than announcing the stipulation to the jury prior to or during the trial, the stipulation would appear in one of the defense's proposed jury instructions. Id. at 547 (¶ 11). Following his conviction, Rogers appealed and asserted for the first time that the State never proved he possessed a prior felony conviction. Id. at (¶ 14).

¶ 34. In addressing the impact of the parties' stipulation on Rogers's prior criminal history, this Court explained:

"[A] stipulation entered into between the parties has the effect of removing a question of fact from the jury's consideration. Neither party need present evidence or show proof of the existence of such facts that are contained within the stipulation." [ State v. Flippen , 344 N.C. 689, 477 S.E.2d 158, 165 (1996).] "In other words, the stipulation is substituted for proof, and it dispenses with the need for evidence." Id. Similarly, the Mississippi Supreme Court has held that the effect of a stipulation to an element of a crime is that the element is conclusively established without the State having to submit further proof to the fact-finder.

Rogers , 130 So.3d at 550 (¶ 22).

¶ 35. As in Rogers , the State and defense explicitly stipulated that Jones possessed a prior felony conviction. Furthermore, the parties agreed to have the circuit court announce the stipulation to the jury, which occurred after opening statements. By agreeing to the stipulation, Jones "conceded that the prosecution did not have to prove that he had previously been convicted of a felony. In return, [Jones] avoided the possible prejudicial effect of the jury's awareness of his specific prior bad acts ... that the prosecution intended to introduce." Id. at 551 (¶ 24). Accordingly, we find no merit to Jones's argument that instruction S-8A improperly relieved the State of proving every element of the crime charged beyond a reasonable doubt.

b. Limiting Instruction

¶ 36. At trial, neither party requested a limiting instruction for proposed instruction S-8A, and the circuit court did not give one sua sponte. On appeal, however, Jones contends for the first time that the circuit court erred by giving instruction S-8A without any accompanying language to limit "the jurors' use of the stipulation."

¶ 37. The supreme court has previously stated:

Where evidence of a prior conviction is a necessary element of the crime for which the defendant is on trial (i.e., possession of firearm by a convicted felon), but evidence of the specific nature of the crime for which the defendant was previously convicted (i.e., armed robbery), is not an essential element of the crime for which the defendant is on trial, as it is in DUI cases, the trial court should accept a defendant's offer to stipulate and grant a limiting instruction.

Williams v. State , 991 So.2d 593, 605-06 (¶ 40) (Miss. 2008).

¶ 38. Count II of Jones's indictment charged him with possession of a firearm as a convicted felon, a crime that requires no specific evidence of the nature of the prior felony. See id. ; Timms v. State , 54 So.3d 310, 316 (¶ 18) (Miss. Ct. App. 2011). In its appellate brief, the State admits that trial courts should generally give a limiting instruction in cases such as this one. See Williams , 991 So.2d at 605-06 (¶ 40). However, the State further argues that the circuit court's failure to do so here amounted to harmless error.

¶ 39. Although the defense objected to instruction S-8A during the jury-instruction conference, it never requested the limiting instruction Jones now argues he should have received. See Harper v. State , 478 So.2d 1017, 1025 (Miss. 1985) ("[T]he lower court may not be put in error for failure to instruct the jury on any point of law unless specifically requested in writing to do so." (citing Newell v. State , 308 So.2d 71, 78 (Miss. 1975) ) ). Even assuming the circuit court erred by not giving a limiting instruction sua sponte, we find any such error to be harmless.

¶ 40. Mississippi caselaw recognizes that, in many instances, a defendant may not want a limiting instruction because the instruction "may actually 'focus the jury's attention' on ... potentially prejudicial testimony [or evidence]."

Curry v. State , 202 So.3d 294, 299 (¶ 16) (Miss. Ct. App. 2016) (quoting Tate v. State , 912 So.2d 919, 928 (¶ 28) (Miss. 2005) ). "Jury instructions that reference prior arrests and convictions may be counterproductive to the defendant. While serving to limit the jury's consideration of the prior wrongs, such instructions also remind and emphasize to the jury that the defendant committed prior bad acts." Tate , 912 So.2d at 928 (¶ 28).

¶ 41. Based upon a review of relevant caselaw, we cannot say that the absence of a limiting instruction in this case rendered Jones's trial fundamentally unfair. Cf. Robinson v. State , 940 So.2d 235, 239 (¶ 11) (Miss. 2006) (finding the denial of a limiting instruction to be harmless error unless the decision deprives the defendant of a fair trial); Curry , 202 So.3d at 299 (¶ 16) (finding no reversible error from the trial court's failure to give a limiting instruction sua sponte). As a result, we find this assignment of error lacks merit.

c. Ineffective Assistance of Counsel

¶ 42. Alternatively, Jones asserts his trial attorney rendered ineffective assistance by failing to request a limiting instruction. To prove ineffective assistance, Jones must show (1) his attorney's performance was deficient, and (2) the deficiency prejudiced him. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Jones fails to satisfy this test.

¶ 43. "We presume that counsel's decision not to request a limiting instruction was within the ambit of trial strategy. This presumption is appropriate given that ... such an instruction has the potential to do the defendant more harm than good." Curry , 202 So.3d at 301 (¶ 24) (internal citation omitted). Furthermore, as previously discussed, we find the lack of a limiting instruction in this case failed to deprive Jones of a fair trial. We therefore find this argument lacks merit.

CONCLUSION

¶ 44. Finding no error, we affirm Jones's conviction and sentence.

¶ 45. AFFIRMED.

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

      As the record reflects, the lack of a limiting instruction amounts to nothing more than harmless error since the jury considered Jones's stipulation regarding his prior felony conviction but still acquitted him of Count I.