author: TINDELL, J., FOR THE COURT:

text:
    Ricky L. SHOEMAKER, Sr. a/k/a Ricky Shoemaker a/k/a Ricky L. Shoemaker a/k/a Ricky L. Shoemaker, Jr. a/k/a Rickey L. Shoemaker a/k/a Rickey Shoemaker, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00983-COA
    Court of Appeals of Mississippi.
    March 6, 2018 Rehearing Denied July 17, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KAYLYN HAVRILLA MCCLINTON
    BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. A Rankin County jury convicted Ricky Shoemaker of Count I, sexual battery, and Count II, gratification of lust. See Miss. Code Ann. §§ 97-3-95(1)(d) & 97-5-23(1) (Rev. 2014). On appeal, Shoemaker asserts the following issues: (1) he received ineffective assistance of counsel; (2) his indictment was defective; (3) his convictions violate his right against double jeopardy; and (4) the circuit court erroneously admitted prior-bad-acts evidence.

¶ 2. Finding no error, we affirm Shoemaker's convictions and sentences.

FACTS

¶ 3. On January 16, 2015, Shoemaker's thirteen-year-old step-granddaughter, Amy, told her mother that Shoemaker had sexually assaulted her on numerous occasions. Amy's parents contacted the Rankin County Sheriff's Office, which investigated the reported sexual abuse. On July 2, 2015, a grand jury indicted Shoemaker for Count I, sexual battery, and Count II, gratification of lust. After amendment, the indictment charged that, over a two-year span, Shoemaker committed the alleged acts against Amy at a time when Shoemaker was more than twenty-four months older than Amy.

¶ 4. On March 3, 2016, the State filed a notice of intent to elicit testimony under Mississippi Rule of Evidence 404(b) about other prior bad acts Shoemaker had committed. The notice provided that Freedom Newton, Shoemaker's former stepdaughter, planned to testify Shoemaker sexually assaulted her when she was a child. The State asserted Newton's testimony was admissible under Rule 404(b)"to prove ... motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident." Shoemaker filed an unsuccessful motion to limit the trial testimony to only the acts charged in the indictment.

¶ 5. At trial, Amy's mother, Becky, testified that she was Shoemaker's cousin and had married Shoemaker's stepson, Cliff. Becky testified that she and Cliff separated in 2007 or 2008 and then divorced in 2010. During the couple's marriage, the family lived next door to Cliff's mother and Shoemaker. After the separation, Becky and the children moved. However, Cliff continued to live next door to his mother and stepfather, and the children visited Cliff every other weekend and on holidays.

¶ 6. Becky testified that, around the time she and the children moved, Amy failed the fourth grade and had to repeat it. Becky also testified that Amy began having emotional outbursts as though "something was bothering her." However, Becky stated that she did not know at the time the reason for Amy's outbursts.

¶ 7. According to Becky, when Amy was about eleven years old, she stopped visiting her dad's house unless he asked her to visit or unless her mother made her go. On January 16, 2015, Amy's grandmother and Shoemaker hosted a birthday party for Amy's younger cousin. Although Amy begged not to attend, Becky insisted. After Amy grew hysterical, though, Becky questioned her daughter further. Amy finally disclosed Shoemaker's sexual abuse. Becky testified that she believed Amy had told her the truth because of "the sheer terror I [saw] on that child's face when she told me, and you can't make stuff like that up." Becky called Amy's father, who contacted the authorities. Becky testified that Amy had "gained absolutely nothing" by disclosing the sexual abuse. In fact, Becky stated that Amy had continued to experience problems at school since the disclosure and had even lost relationships with friends and close family members who did not believe her.

¶ 8. Following Becky's testimony, the courtroom was cleared for Amy, who was fourteen years old at the time of trial. Amy stated that Shoemaker's sexual abuse began when she was five or six and ended when she was eleven or twelve. Amy admitted that she stopped wanting to visit her dad because she also had to go to her grandparents' house, where "[b]ad stuff" happened. Amy testified that the "[b]ad stuff" happened "a lot" when she and Shoemaker were alone together in his car, his house, and her dad's house.

¶ 9. According to Amy, Shoemaker touched both the outside and inside of the "private areas between [her] legs" with his hands. Amy testified that Shoemaker touched her both on top of and underneath her clothes in her "private areas" and that he touched her chest with both his hands and his mouth. In addition, Amy stated that Shoemaker made her massage "his private areas" with her hands and that sometimes a "[g]ooey, whitish, clearish" substance came out.

¶ 10. Amy testified that Shoemaker said no one would believe her if she revealed the sexual abuse. She stated that Shoemaker also said any disclosure would get him into trouble, which would negatively affect Amy's younger cousin who lived with Shoemaker and his wife. After finally revealing the abuse to her mother, Amy testified that "a lot" had changed and that she was no longer as close to several family members.

¶ 11. Sheila Tucker, a juvenile investigator with the Rankin County Sheriff's Department, next testified for the State. Based on her investigation into the reported sexual abuse, Tucker contacted the Children's Advocacy Center and scheduled a forensic interview for Amy. From a nearby room, Tucker observed Amy's interview. Tucker stated that Amy seemed nervous and embarrassed to talk about the sexual abuse. However, Tucker further testified that Amy told the interviewer "that on different occasions [Shoemaker] would rub her on her no[-]no spots, what she called her vaginal spots, what she pointed [to] on the diagram" the forensic interviewer provided. Amy further told the forensic interviewer that Shoemaker "would touch her under her clothes[,] and then he would put his finger in her at different times and that he ... had made her rub his no[-]no spot[,] and she saw gooey sticky stuff come out of it like he was peeing."

¶ 12. On cross-examination, Tucker testified that she interviewed Amy, Amy's mother, and Shoemaker. Because of the time lapse between the purported abuse and Amy's disclosure, no physical evidence existed to support the sexual-abuse allegations. Tucker stated that Shoemaker repeatedly denied the allegations but that he admitted Amy had stopped visiting him as regularly as her brothers. Tucker testified that Shoemaker identified several people she should interview, including his former stepdaughter, Newton. Shoemaker told Tucker the people he listed could confirm that he "would never do anything like that as far as sexually assaulting [Amy] or anybody."

¶ 13. Following Tucker's testimony, the State called Shoemaker's former stepdaughter, Newton, as a witness. At the time of Shoemaker's trial, Newton was thirty-nine years old with a family of her own. Between the time that Newton completed kindergarten and third grade, her mother twice married and divorced Shoemaker. According to Newton, Shoemaker "physically, emotionally, mentally, and sexually abused" her. Specifically, Newton testified as follows:

[Shoemaker] would encourage me to touch him. He would touch me at first on top of the clothing and under the clothes. He would encourage me to touch him down in his pants, to jerk him off, then to orally please him until he ejaculated. Sometimes he would encourage [me] to [lie] on top of him with my pants off or have me lock my ankles around each other and move myself up and down until he got off. And this happened several occasions. I would orally get him off all the time. It was too numerous to count how often. It was daily.

¶ 14. Newton testified that Shoemaker threatened to beat her and to hurt her mother, her siblings, and the family pets if Newton disclosed the abuse. Although Newton stated that she eventually told several family members about Shoemaker's conduct, she never reported the abuse to authorities because her family members dissuaded her. When she became a teenager, however, Newton began attending counseling and therapy. Newton testified that she first heard about Shoemaker's trial when she received phone calls from her mother and the district attorney's office. According to Newton, she had nothing to gain by testifying, and she stated that she had never met Amy prior to the trial.

¶ 15. After Newton's testimony, the State rested its case-in-chief. The defense then moved for a directed verdict. Following the circuit court's denial of the motion, the defense called Shoemaker to testify. Shoemaker denied that he ever sexually abused Newton or Amy. Shoemaker corroborated Newton's testimony that she and Amy did not know each other prior to the trial. Shoemaker further agreed that he had not seen Newton since she was about sixteen. Shoemaker testified that he once had a good relationship with Newton but that she grew to hate him after he separated from her mother the second time. He further testified that Amy accused him of sexual abuse and testified against him because she was jealous.

¶ 16. The defense's second and final witness was Shoemaker's mother-in-law, Doris, who lived with her daughter and Shoemaker. Prior to the sexual-abuse allegations, Doris stated that Amy came to visit all the time, even when Shoemaker was present, and that Amy never indicated she did not want to be around Shoemaker. On cross-examination, Doris, who is wheelchair bound, testified that she mostly stayed in the kitchen, which allowed her to see into the home's living room but not the bedrooms.

¶ 17. After considering the parties' evidence and testimony, the jury found Shoemaker guilty of both charges. The circuit court sentenced Shoemaker to twenty years in the custody of the Mississippi Department of Corrections for his sexual-battery conviction and to a concurrent fifteen-year sentence for his gratification-of-lust conviction, with five years suspended and five years of supervised probation. The circuit court also ordered Shoemaker to register as a sex offender with the Mississippi Department of Public Safety. See Miss. Code Ann. § 45-33-25 (Rev. 2015). Shoemaker filed an unsuccessful motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Aggrieved by his convictions and sentences, Shoemaker appeals.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 18. Shoemaker asserts his trial attorney rendered ineffective assistance by failing to object to Tucker's testimony about Amy's statements to the forensic interviewer. According to Shoemaker, Tucker's testimony about the statements constituted inadmissible hearsay. To succeed on his ineffective-assistance-of-counsel claim, Shoemaker must show (1) his counsel's performance was deficient and (2) the deficiency prejudiced him. See Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If Shoemaker fails to meet either prong, his claim fails. See Pinter v. State , 221 So.3d 378, 386 (¶ 17) (Miss. Ct. App. 2017).

¶ 19. This Court does not usually consider an ineffective-assistance claim on direct appeal since we are limited to the trial-court record, which often lacks sufficient evidence to evaluate the claim. McClendon v. State , 152 So.3d 1189, 1191-92 (¶ 12) (Miss. Ct. App. 2014). "[W]here the record cannot support an ineffective[-]assistance[-]of[-]counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for post[ ]conviction relief." Id. (quoting Aguilar v. State , 847 So.2d 871, 878 (¶ 17) (Miss. Ct. App. 2002) ). However, we may address the claim's merits on direct appeal when "(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate and [we] determine[ ] that findings of fact by a trial judge able to consider the demeanor of witnesses, etc., are not needed." Bell v. State , 202 So.3d 1239, 1242 (¶ 12) (Miss. 2016) (quoting Read v. State , 430 So.2d 832, 841 (Miss. 1983) ).

¶ 20. Mississippi caselaw clearly establishes "that, with respect to the overall performance of the attorney, counsel's choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy and cannot give rise to an ineffective[-]assistance[-]of[-]counsel claim." Pinter , 221 So.3d at 386 (¶ 19) (citation and internal quotation marks omitted). Based on the record before us, we cannot say whether Shoemaker's trial attorney had a strategic reason for not objecting to Tucker's testimony about Amy's statements during the forensic interview. In addition, even if Shoemaker's attorney had objected to the disputed testimony, we do not know whether the State could have articulated a response sufficient to persuade the circuit court to admit the testimony. Because we find the trial record inadequate to evaluate Shoemaker's assignment of error, we deny his claim without consideration, thereby preserving it for a postconviction-relief motion. See Webb v. State , 113 So.3d 592, 602 (¶¶ 39-41) (Miss. Ct. App. 2012).

II. Defective Indictment

¶ 21. Shoemaker claims that, due to the broad date ranges identified, his "indictment failed to specifically and adequately allege criminal conduct for which [he] could viably assert a theory of defense[, especially an alibi defense]." "The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by this Court. The legal sufficiency of an indictment must be reviewed de novo." Williams v. State , 169 So.3d 932, 935 (¶ 7) (Miss. Ct. App. 2014) (quoting Young v. State , 119 So.3d 309, 313 (¶ 10) (Miss. 2013) ).

¶ 22. "The supreme court has held that a specific date in a child[-]sexual[-]abuse case is not required so long as the defendant is fully and fairly advised of the charge[s] against him." Pustay v. State , 221 So.3d 320, 342 (¶ 52) (Miss. Ct. App. 2016) (citation and internal quotation marks omitted). The indictment's primary purpose is to give the defendant fair notice of the crimes charged. Jones v. State , 215 So.3d 508, 510-11 (¶ 8) (Miss. Ct. App. 2017). "An indictment must contain (1) the essential elements of the offense[s] charged, (2) sufficient facts to fairly inform the defendant of the charge[s] against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense[s]." Id. at 511 (¶ 8) (quoting Davis v. State , 171 So.3d 537, 540 (¶ 11) (Miss. Ct. App. 2015) ).

¶ 23. In Morris v. State , 595 So.2d 840, 840 (Miss. 1991), a grand jury indicted the defendant for child molestation. The defendant's stepdaughter accused him of molesting her over a cumulative period of one to two-and-a-half years when she was around nine or ten years old. Id. at 841. Morris's indictment alleged that the molestation occurred between March 1986 and May 1986. Id. Morris filed an unsuccessful motion to require the State to provide a more definite time period for the offense. Id. at 842. On appeal, Morris argued his indictment's "failure to provide specific dates deprived him of the opportunity to present a convincing alibi to the jury." Id. at 841-42.

¶ 24. In addressing Morris's argument, the supreme court recognized that, "[t]raditionally, time and place have been viewed as not requiring considerable specificity because they ordinarily do not involve proof of an element of crime." Id. at 842. The Morris court further held that prior caselaw only required "that the defendant be given the specific date if at all possible ." Id. (citing Wilson v. State , 515 So.2d 1181, 1183 (Miss. 1987) ). Morris's stepdaughter, who was fifteen at the time of trial, could not recall the specific dates of the molestation. Id. at 841-42. The Morris court found her testimony "amply illustrate[d] the fact that the State could not narrow the time frame any more than it did." Id. After determining that Morris's indictment fully and fairly notified him of the charges against him, the supreme court concluded his argument lacked merit. Id.

¶ 25. We find Morris controls the present case. Shoemaker's original indictment charged him with committing the alleged crimes during a five-year time period. Like Morris , Shoemaker filed a pretrial motion requesting that his indictment provide more specific dates so he could establish an alibi defense. In response to Shoemaker's motion, the State asked during the pretrial hearing that the circuit court amend Shoemaker's indictment and narrow the identified time frame to two years. The State argued it could not provide more specific dates because the acts were recurrent, which like the victim in Morris , prevented Amy from recalling exact dates and times. After considering the parties' arguments, the circuit court denied Shoemaker's motion for more date specificity and granted the State's motion to amend the indictment to reflect a two-year time period.

¶ 26. In pertinent part, Shoemaker's amended indictment read as follows:

Count I: [Shoemaker,] ... on, about[,] or between the dates of [June 27], 2010[,] to [June 27], 2012, ... being a male human being above the age of eighteen (18) years, ... did willfully, unlawfully, and intentionally engage in sexual penetration as defined by [section] 97-3-97 with [Amy], a female child under the age of fourteen (14) years, ... by inserting his finger in [Amy's] vagina, at a time when [Shoemaker] was more than twenty-four (24) months older than [Amy], ... in violation of [s]ection 97-3-95(1)(d)[.]
Count II: And based upon a series of acts connected together and constituting parts of a common scheme and plan, [Shoemaker,] ... on, about[,] or between the dates of [June 27], 2010[,] to [June 27], 2012, ... being a male human being above the age of eighteen (18) years, ... who, for the purpose of gratifying his lust or indulging his depraved licentious sexual desires, did willfully, unlawfully, and intentionally handle, touch[,] or rub with his hands or any part of his body, the body of [Amy], a minor female child under the age of sixteen (16) years, ... in violation of [ section] 97-5-23(1) [.]

¶ 27. At trial, Amy testified she could not say how many times the sexual abuse occurred or the exact dates on which it occurred because it happened "a lot." She stated, however, that the abuse began when she was five or six and ended when she was eleven or twelve. On cross-examination, Amy further testified that she thought the abuse began in 2007 and ended in 2012. As discussed, each count of Shoemaker's indictment charged that the acts occurred between the last two years of this time frame from 2010 to 2012.

¶ 28. As in Morris , we find the State could not provide a more definite time frame for the alleged offenses against Shoemaker than it already did in the amended indictment. Cf. Morris , 595 So.2d at 842. Amy testified the sexual misconduct occurred over a five-year to seven-year time span when she was between five and twelve years old. Although the State narrowed the time frame provided in the indictment from five years to two years, Amy still testified that the sexual misconduct occurred so often she could not give specific dates and times. Indeed, the trial testimony reflects that Shoemaker and Amy had constant interaction with each other during the period at issue. Over the course of her parents' marriage, Amy's family lived next door to her paternal grandmother and Shoemaker. Even after Amy's parents divorced, she and her brothers frequently visited their father, who continued to live next door to his mother and Shoemaker.

¶ 29. Thus, based on the specific facts presented, we find the State could not narrow the date range provided in Shoemaker's indictment counts any more than it already did. We therefore find no merit to this assignment of error. However, in reaching our decision, we caution prosecutors to limit the time frame provided in an indictment as much as reasonably possible to sufficiently notify defendants of the charges against them and to allow defendants the opportunity to prepare a defense.

III. Double Jeopardy

¶ 30. Shoemaker contends the State failed to prove that his charges for sexual battery and gratification of lust constituted separate and distinct acts. Citing the supreme court's decision in Friley v. State , 879 So.2d 1031 (Miss. 2004), Shoemaker asserts gratification of lust is a lesser-included offense of sexual battery. He therefore argues that his lustful-touching conviction merged with his sexual-battery conviction and violated his right against double jeopardy. We review double-jeopardy claims de novo. Woods v. State , 30 So.3d 362, 365 (¶ 8) (Miss. Ct. App. 2009).

¶ 31. Upon review, we find Shoemaker's argument is procedurally barred. As previously discussed, Shoemaker raised an objection before the circuit court that his indictment lacked date specificity and was therefore too vague and ambiguous. However, the record fails to show that Shoemaker ever objected to the indictment on the ground that Counts I and II should have merged. "When a defendant fails to object to the form of the indictment, the issue is waived on appeal." Pustay , 221 So.3d at 353 (¶ 109). "Failure to make a contemporaneous objection constitutes waiver of the objection and cannot be raised for the first time on appeal because the trial court is denied the opportunity to consider the issue and possibly remedy the situation." Copeland v. Copeland , 904 So.2d 1066, 1073 (¶ 24) (Miss. 2004).

¶ 32. Notwithstanding the procedural bar, we also find that Shoemaker's double-jeopardy claim lacks merit. "[S]exual battery of a child and unlawful touching are separate and distinct criminal offenses. While sexual battery of a child requires some sort of penetration[,] ... unlawful touching does not." Faulkner v. State , 109 So.3d 142, 147 (¶ 20) (Miss. Ct. App. 2013). "[U]nder 'particular circumstances[,]' when penetration is achieved by touching a child under the age of fourteen, fondling or molestation is a lesser-included offense of sexual battery." Id. at 147-48 (¶ 20) (quoting Friley v. State , 879 So.2d 1031, 1035 (¶ 17) (Miss. 2004) ). However, " Friley 's general holding-that it is not possible to penetrate a minor without touching the child-is not absolute." Id. at 148 (¶ 20) (citing Tapper v. State , 47 So.3d 95, 103 (¶ 30) (Miss. 2010) ). Instead, our caselaw recognizes:

[I]t is possible to commit an unlawful touching without committing sexual battery. And where sufficient evidence exists to support separate and distinct acts of fondling and sexual battery, separate indictable charges can properly stand without implicating jeopardy issues. This is so even if the criminal acts are closely connected or based on a common nucleus of fact....

Id. at (¶ 21) (internal citations and quotation marks omitted).

¶ 33. In Mosby v. State , 134 So.3d 850, 857 (¶ 25) (Miss. Ct. App. 2014), this Court found the victim's testimony established two distinct criminal acts-that the defendant (1) fondled her breast and (2) digitally penetrated her vagina. As a result, we found no merit to the defendant's claim that his sexual-battery and fondling convictions merged and violated his right against double jeopardy. Id.

¶ 34. As in Mosby , we find the State presented sufficient evidence in the present case "to support separate and distinct acts of fondling and sexual battery[.]" Faulkner , 109 So.3d at 148 (¶ 21) (citations omitted). Amy testified to a long-term pattern of sexual abuse by Shoemaker. According to Amy, on numerous occasions, Shoemaker touched her both outside and inside her "privates." In addition to testifying that Shoemaker digitally penetrated her vagina, Amy stated that he also fondled her chest with his hands and mouth. Amy testified that, at least one time, she remembered her shirt "was pulled over [her] shoulders[,] like over [her] arms[,] but just around [her] neck[,]" while Shoemaker fondled her chest. Based on Amy's testimony, we find the record fails to support Shoemaker's argument that his gratification-of-lust conviction merged with his sexual-battery conviction. We therefore find this issue lacks merit.

IV. Prior-Bad-Acts Evidence

¶ 35. In his final assignment of error, Shoemaker alleges the circuit court erred by admitting Newton's testimony that Shoemaker also sexually abused her when she was a child. We review the circuit court's admission or exclusion of evidence for abuse of discretion. Strickland v. State , 220 So.3d 1027, 1032 (¶ 9) (Miss. Ct. App. 2016).

¶ 36. Rule 404(b) prohibits the use of prior-bad-acts evidence to prove a person's character to show that he acted in conformity therewith. Pritchett v. State , 201 So.3d 1095, 1097 (¶ 9) (Miss. Ct. App. 2016). However, Rule 404(b) permits the use of such evidence to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Before admitting prior-bad-acts evidence, a trial judge should filter the evidence through Mississippi Rule of Evidence 403 and determine whether the evidence's probative value outweighs its prejudicial effect to the defendant. Id. at 1098 (¶ 10). Where the evidence's probative value outweighs its prejudice, the trial judge may admit the evidence. Id. In the context of child-sexual-abuse cases, even evidence of remote past sexual-abuse allegations may be admitted for a proper purpose under Rule 404(b), especially when coupled with an appropriate limiting instruction to the jury. Westbrook v. State , 109 So.3d 609, 615 (¶ 18) (Miss. Ct. App. 2013).

¶ 37. In the present case, the State filed a notice of its intent to elicit Rule 404(b) testimony from Newton, Shoemaker's former stepdaughter. The State asserted that Newton's testimony showed Shoemaker's motive, intent, preparation, and plan. At the pretrial hearing, Newton testified about Shoemaker's alleged sexual abuse toward her and her brother. Shoemaker's attorney raised no objection to Newton's testimony. However, the circuit court still made an on-the-record finding regarding Newton's proffered testimony. After considering the evidence's purpose under Rule 404(b) and filtering it through Rule 403's balancing test, the circuit court limited Newton's testimony to incidences involving Shoemaker's alleged sexual abuse toward her alone. The circuit court found Newton's testimony about Shoemaker's alleged sexual abuse of her was admissible for proper non-character purposes under Rule 404(b). The circuit court further stated that, after filtering the testimony through Rule 403's balancing test, it found the probative value of Newton's testimony outweighed the prejudice to Shoemaker.

¶ 38. The trial transcript reflects several similarities between Newton's and Amy's testimony about Shoemaker's sexual abuse. Similar to Amy, Newton testified that, when she was about six years old, Shoemaker began to abuse her on numerous occasions at home and in the car. Also similar to Amy, Newton stated that Shoemaker touched her both on top of and underneath her clothing and that he would encourage her to touch his penis until he ejaculated. Amy and Newton also testified that Shoemaker threatened to hurt them individually and to hurt their family members to prevent them from disclosing the abuse.

¶ 39. Following the parties' presentation of their evidence, the circuit court instructed the jury. In accordance with Mississippi caselaw, the circuit court issued the jury the following limiting instruction on Newton's testimony:

[A]cts testified to by ... Newton are acts relating to charges for which the [D]efendant is not presently on trial and are to be considered only for the limited purpose of showing proof of motive, intent, preparation, or plan. You cannot and must not simply infer that the [D]efendant acted in conformity with his previous acts and that he is therefore guilty of the charges for which he is presently on trial.[ ]

¶ 40. Upon review, we find the circuit court admitted the evidence of Shoemaker's alleged prior sexual acts for a proper Rule 404(b) purpose only after determining the evidence's probative value outweighed its prejudice under Rule 403. See Westbrook , 109 So.3d at 616 (¶ 20). We also find the circuit court provided the jury an appropriate limiting instruction about the limited purpose for which it could consider the prior-bad-acts evidence. Id. We therefore find no abuse of discretion in the circuit court's admission of the evidence. Id. As a result, this issue lacks merit.

CONCLUSION

¶ 41. Because we find no error, we affirm Shoemaker's convictions and sentences.

¶ 42. AFFIRMED.

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

      Due to the nature of the offenses and the victim's age, we use an alias to protect her identity. We also use an alias for the names of the victim's relatives who are mentioned throughout the opinion.

      The original indictment charged that Shoemaker committed the acts over a five-year span.

      Although Shoemaker's attorney raised no objection to the limiting instruction, we note that the instruction's language substantially tracks that of other limiting instructions previously approved by the supreme court and this Court. See Gore v. State , 37 So.3d 1178, 1184 (¶ 14) (Miss. 2010) ; Strickland , 220 So.3d at 1034 (¶ 18).


source: Caselaw Access Project

author: GREENLEE, J., FOR THE COURT:

license: Public Domain

text:
    Michael Ray FONTAINE a/k/a Michael Fontaine, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00719-COA
    Court of Appeals of Mississippi.
    March 13, 2018 Rehearing Denied August 7, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JOSEPH SCOTT HEMLEBEN
    EN BANC.
   GREENLEE, J., FOR THE COURT:

¶ 1. On November 3, 2011, a jury in Forrest County Circuit Court found Michael Fontaine guilty of burglary of a nonresidential dwelling and conspiracy to commit burglary of a nonresidential dwelling. Fontaine appeals claiming (1) the circuit court erred by not allowing the full audio-recorded polygraph interview to be played when the State played a two-minute excerpt; (2) the circuit court erred in excluding the affidavit of a deceased co-defendant; (3) prosecutorial misconduct denied Fontaine a fair trial; (4) insufficient evidence supported the verdicts; and (5) the verdicts were against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 23, 2010, Petal Police Department Officer Rick Varner responded to a burglary call at a local trailer park. Upon arrival, Officer Varner spoke with William Cooley, who explained that he and his wife were in the process of moving and that his trailer had been burglarized. William showed Officer Varner the window that the perpetrator used to enter his trailer and, at the request of Officer Varner, listed the items that were stolen: rods and reels, NASCAR collectibles, several CDs, DVDs, and bow and arrows.

¶ 3. Petal Police Department Investigator Kevin Bullock was dispatched to further investigate the scene along with Officer Varner. The officers, receiving information that the stolen items might be in another trailer at the same park, walked over to that trailer, which was owned by Mark Walker. Arriving at the trailer, the officers were met by Walker, his girlfriend Aundrea McDaniel, and his co-worker Fontaine. After obtaining Walker's consent to search the trailer, the officers asked if there was any hunting or fishing equipment in the trailer about which they needed to know. Fontaine responded that there was a child's "Snoopy rod and reel" that he had bought for his kid.

¶ 4. The officers proceeded to enter the trailer and found several of the items reported as stolen on the den's floor in plain view. Further, the officers observed additional items reported as stolen in Walker's living room and the Fontaines' bedroom. Upon entering the Fontaines' bedroom, Officer Varner observed a partially open closet and looked inside it, revealing two BB guns that allegedly were stolen. Additionally, after removing a mattress that was wedged behind the closet door, Officer Varner found several rods and reels, a Browning bow and arrows, NASCAR items, and a large bag containing CDs and movies. After completing their search, the officers took the Fontaines, Walker, and McDaniel into custody.

¶ 5. After reading Fontaine his Miranda rights, Officer Varner placed Fontaine inside the back of his patrol car. According to Officer Varner, when Detective Bullock walked out of Walker's trailer with rods and reels, Fontaine claimed they belonged to his brother Tony Fontaine. However, at Fontaine's trial, Tony testified otherwise.

¶ 6. After being taken into police custody, Fontaine provided a written statement explaining his whereabouts on the day of the burglary. According to his written statement, Fontaine got home from work at approximately 3:33 p.m. and took a bath. The statement further explained that he heard a noise and saw Walker carrying a "basket of something." Fontaine then returned to his room, took a nap until 4:30 a.m., and went to work.

¶ 7. On May 16, 2011, a grand jury indicted Fontaine as a habitual offender on one count of burglary of a nonresidential dwelling and one count of conspiracy to commit burglary of a nonresidential dwelling. Fontaine's trial was set for November 2, 2011. Several days before trial, Fontaine filed a notice of intent to introduce as evidence an affidavit from Walker, who recently had died. In this affidavit, executed on January 6, 2011, Walker denied that Fontaine was present when the burglary occurred. Instead, Walker claimed that he was the only person in Cooley's trailer. The State filed a motion in limine to prevent Fontaine from introducing Walker's affidavit at trial. Following a hearing, the circuit court found the affidavit was pure hearsay and untimely. The circuit court granted the State's motion to exclude the affidavit from evidence.

¶ 8. At Fontaine's trial, McDaniel testified for the State and said that she met with Fontaine and Walker in the kitchen of Walker's trailer to discuss going into "[Cooley's] trailer and take some things." Further, she testified that when they went down to the trailer they tried to go through the front door, but it was locked. So they went to the back of the trailer where Walker went through a window and then opened the front door for her and Fontaine. McDaniel stated that once inside Cooley's trailer, they began "gathering stuff up in a big 'ol blue tote" and started hauling it down to Walker's trailer. She explained that they made two trips to Cooley's trailer to collect "stuff," which included DVDs from the living room, a Dale Earnhardt plaque, bow and arrows, and rods and reels from the bedrooms. Finally, McDaniel testified that the next day, she and Fontaine's wife Miranda hid the stolen items in the bedroom closets of Walker's trailer.

¶ 9. The State's next witness to testify was David Clayton, a polygrapher retained by defense counsel who interviewed Fontaine prior to trial. During his testimony, the State moved to introduce a two-minute portion of his interview with Fontaine into evidence. Counsel for Fontaine objected to the introduction of the two-minute excerpt on the grounds that the circuit court should admit the remainder of Fontaine's audio-recorded polygraph interview instead of just the excerpt. The judge, overruling the defense's objection, allowed the two-minute excerpt to be played. Counsel for Fontaine, who had control of the audio-recorded interview, never proffered the remainder of the recording.

¶ 10. As admitted into evidence, the two-minute audio-recorded excerpt reveals a conversation between Fontaine and Clayton where Fontaine tells Clayton his whereabouts on the day of the alleged burglary. During this conversation, Fontaine explains that his wife was interested in looking at Cooley's trailer and as a result went with Walker and McDaniel to look at it. Fontaine claimed that they only looked inside the trailer windows but also said he awoke later that night to Walker returning with a big blue bag. Further, Fontaine stated that the next day Walker mentioned he had a signed Dale Earnhardt picture. Fontaine also claimed that he overheard part of a phone conversation in which Walker and McDaniel discussed "putting something somewhere[.]"

¶ 11. The jury also heard testimony from Kimberley Cooley, the co-owner of the burglarized trailer. She testified that she recently overheard a conversation between Fontaine and his bail bondsman. She explained that Fontaine told his bondsman that McDaniel allegedly had called the Cooleys and received permission to enter their trailer. Fontaine also purportedly told the bondsman that he entered the Cooleys' trailer with his wife, Walker, and McDaniel, and then the four of them transported the Cooleys' stolen property to Walker's trailer. She testified that Fontaine asked his bondsman if he could apologize to the Cooleys. Kimberly testified that upon hearing these comments she reported them to the police. She also testified that neither she nor her husband ever gave the Fontaines, Walker, or McDaniel permission to enter their trailer.

¶ 12. During the defense's case-in-chief, Fontaine's wife Miranda was called to testify about the day of the burglary. She testified that she went to a doctor's appointment, where she was prescribed medication for migraines. She further explained that on the day of the incident, she returned from her doctor's appointment, took her migraine medication, and fell asleep until the next morning. Further, she denied seeing any of the stolen property in Walker's trailer and had no recollection of what happened. She explained that while her family rented a bedroom in Walker's trailer, they used only one of the two closets because the other closet contained Walker's mother's possessions and was off limits.

¶ 13. Fontaine also testified on his own behalf and denied participating in the burglary.

Fontaine stated that on the night of the burglary, he was walking his daughter over to her friend's house to spend the night when they came upon Walker and McDaniel. According to Fontaine, McDaniel pointed out the Cooleys' trailer as the one his wife wanted to rent. He testified that he briefly walked over to the trailer but soon left returning to walk his daughter to her friend's home. Fontaine further testified that, upon returning to Walker's trailer, he spoke with McDaniel about the Cooleys' trailer, explaining to her that he did not really get a chance to look at it. According to Fontaine, McDaniel told him that she would make some calls and gather information about the trailer.

¶ 14. That night, according to Fontaine, he continued his usual nighttime routine until his homesick daughter returned home. As he was about to go back to sleep, Fontaine testified that he heard a noise and saw Walker returning to the trailer with a large blue tote. The next day, Fontaine stated that he was at dinner with Walker when Walker told him that he had a Dale Earnhardt picture. Fontaine testified, however, that he knew Walker did not own such an item and that he had a "good idea" it was stolen.

¶ 15. After considering the evidence in the case, the jury found Fontaine guilty of both burglary of a nonresidential dwelling and conspiracy to commit burglary of a nonresidential dwelling. Accordingly, the circuit court sentenced him to seven years for burglary of a nonresidential dwelling and a consecutive five-year sentence for conspiracy to commit burglary of a nonresidential dwelling.

¶ 16. On November 14, 2011, Fontaine filed a motion for judgment notwithstanding the verdict or, in the alternate, a new trial, which was denied. Aggrieved, Fontaine appeals.

DISCUSSION

I. Whether The Circuit Court Erred When It Permitted The State To Introduce A Two-Minute Segment Of Fontaine's Recorded Statement Without Allowing The Remainder Of The Recording Into Evidence

¶ 17. This Court applies an abuse of discretion standard of review when considering a trial court's admission of evidence. Cooper v. State , 200 So.3d 1065, 1074 (¶ 32) (Miss. Ct. App. 2016). Under this standard, "[t]he trial judge has ample power in his sound discretion to limit the introduction into evidence of those portions of the recording which are relevant and material." Sanders v. State , 237 Miss. 772, 777, 115 So.2d 145, 147 (1959). "For a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party." Harrell v. State , 179 So.3d 16, 18 (¶ 9) (Miss. Ct. App. 2014).

¶ 18. Fontaine argues that the circuit court erred by overruling his objection and refusing to admit the entire audio-recorded polygraph interview after the State moved to admit a two-minute excerpt. He asserts that the State took the excerpt out of context, and he contends "[he] was, in fairness, entitled to present and have the jury consider the remainder of the interview under the Rule of Completeness." However, Fontaine's failure to proffer the full audio-recorded polygraph interview leaves this Court without the ability to assess whether the trial judge abused his discretion in not admitting the whole interview. Without the whole audio-recorded polygraph interview, not only has Fontaine failed to preserve the issue on appeal, but also this Court cannot evaluate the interview's evidentiary value or make any determination as to whether or not the trial court committed any error.

¶ 19. In Mississippi, the Supreme Court has made it clear that "[appellate courts] adhere to the rule that a record proffer of excluded testimony must be made to preserve the point for appeal." Thompson v. State , 602 So.2d 1185, 1188 (Miss. 1992). Further, in Barron v. State , this Court reaffirmed the necessity of a proffer being made at the trial court level to preserve the issue for appeal, stating that "before we will consider the matter on appeal the party must have somehow placed in the record the nature and substance of the proffered evidence for our consideration." Barron v. State , 130 So.3d 531, 539-40 (¶ 32) (Miss. Ct. App. 2013). Therefore, while the record clearly indicates Fontaine objected to the State's introduction of just the two-minute segment of the audio-recorded polygraph interview, his failure to proffer the remaining contents or substance of the audio-recorded polygraph interview constitutes a waiver of the issue on appeal.

¶ 20. Notwithstanding waiver of the issue, Fontaine's failure to proffer the remainder of the audio-recorded polygraph interview leaves this Court without the ability to determine whether the trial court abused its discretion in not allowing admission of the whole recording. Mississippi Rule of Evidence 106, known as the rule of completeness, states that when a party introduces all or part of a writing, recorded statement, or audio recording, then "the adverse party may require the introduction, at that time, of any other part-or any other writing or recorded statement-that in fairness ought to be considered at the same time." M.R.E. 106. However, the rule of completeness "does not necessarily require that all the remainder of a document must be offered into evidence, but only that part which 'ought in fairness to be considered .' " Washington v. State , 726 So.2d 209, 216 (¶ 33) (Miss. Ct. App. 1998) (emphasis added). The complete document, statement, or video also must be more probative than prejudicial. Stribling v. State , 81 So.3d 1155, 1160 (¶ 19) (Miss. Ct. App. 2011) ; see also M.R.E. 403. The audio-recorded polygraph interview also should be weighed under the other criteria contained in our rules of evidence. E.g. , Rials v. Duckworth , 822 So.2d 283, 287 (¶ 19) (Miss. 2002) (affirming the denial of portions of a police report into evidence under Rule 106 because the report contained hearsay).

¶ 21. Without knowing the contents or substance of the remainder of the audio-recorded polygraph interview, this court cannot fairly assess the evidentiary value of the recording nor determine what ought in fairness be considered. "Of course a recorded statement may contain considerable material which is not relevant or material ... [, but] [t]he trial judge has ample power in his sound discretion to limit the introduction into evidence of those portions of the recording which are relevant and material." Sanders , 237 Miss. at 777, 115 So.2d at 147. Without any record of the remainder of the audio-recorded polygraph interview, this court cannot assess whether the trial court determination was in error, much less an abuse of discretion.

II. Whether The Circuit Court Erred In Excluding Walker's Affidavit

¶ 22. Next, Fontaine argues that the circuit court erred in excluding Walker's affidavit because it was exculpatory and admissible as a statement against interest pursuant to Mississippi Rule of Evidence 804(b)(3). As mentioned above, the circuit court, after a hearing on the matter, gave two reasons for granting the State's motion in limine: (1) Walker's affidavit was untimely noticed, and (2) Walker's affidavit was pure hearsay. Finding no error in the circuit court's determination, we affirm.

¶ 23. First, the judge found that Fontaine's October 26, 2011, notice of intent to use Walker's affidavit was untimely. Fontaine asserts that this was in error because, according to Fontaine, it was not a true alibi defense and therefore did not have to be timely disclosed pursuant to the then-applicable Uniform Circuit and County Court Rule 9.05. In Mississippi, an alibi has been defined as "a defense that places the defendant at the relevant time of crime in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party." Jackson v. State , 743 So.2d 1008, 1014 (¶ 20) (Miss. Ct. App. 1999) (citing Black's Law Dictionary (6th ed.1990) ). A cursory review of Walker's affidavit, which stated that Walker was the only person present at the Cooleys' trailer during the burglary and that Fontaine was not at the trailer, clearly places Fontaine in a different place than the scene of the crime and therefore is an alibi defense subject to Rule 9.05's notice requirement.

¶ 24. Pursuant to Uniform Circuit and County Court Rule 9.05, any defendant who intends to use an alibi defense must, within ten days of receiving a written demand from the prosecuting attorney, serve the prosecutor written notice of his or her intent to offer an alibi defense. See URCCC 9.05 (2015). This notice must provide the prosecutor with "the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon which the defendant intends to rely [on] to establish such alibi." Id.

¶ 25. In the present case, the record reveals that Walker executed his sworn affidavit on January 6, 2011. The affidavit was retained by counsel for Fontaine. On March 1, 2011, the State demanded written notice of Fontaine's intent to pursue an alibi defense. This triggered Fontaine's requirement to disclose his intent to use an alibi as a defense. See Ford v. State , 862 So.2d 554, 557 (¶ 11) (Miss. Ct. App. 2003) ("Only after the prosecuting attorney makes a written demand is the defendant then required to provide a written notice of his intent to offer a defense of alibi."). However, on October 26, 2011, seven days prior to trial, Fontaine filed his notice of intent to use Walker's affidavit. This is clearly after the 10-day notice requirement of Rule 9.05, and therefore the circuit court did not abuse its discretion in finding that Fontaine's notice of intent to use Walker's affidavit was untimely.

¶ 26. The trial judge also excluded Walker's affidavit because it was pure hearsay. Fontaine asserts that this decision was made in error because Walker's affidavit was admissible as a statement against interest and therefore falls into an exception to the rule against hearsay pursuant to Mississippi Rule of Evidence 804(b)(3).

¶ 27. "Hearsay is 'a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' " Williams v. State , 174 So.3d 275, 278 (¶ 17) (Miss. Ct. App. 2014) (citing M.R.E. 801(c) ). However, a statement may be admissible if it falls within one of the hearsay exceptions set forth by Mississippi Rule of Evidence 804, which requires the declarant to be unavailable. Id. Rule 804(a)(4) explains that a declarant is unavailable when he "cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness." M.R.E. 804(a)(4). Rule 804(b)(3) requires that the declarant be unavailable and defines a "statement against interest" as a statement that:

(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it tends to expose the declarant to criminal liability and is offered to exculpate the accused.

M.R.E. 804(b)(3)(A)-(B).

¶ 28. In the present case, both parties agreed that Walker had died prior to the pre-trial hearing and therefore was unavailable pursuant to Rule 804(a)(4). However, the inquiry does not stop there. Next, it must be determined whether the statement was against Walker's interest at the time the statement was made. This is determined "by considering the statement in light of the surrounding circumstances." Hartfield v. State , 161 So.3d 125, 136 (¶ 15) (Miss. 2015). Further, "the proponent is required to show that the statement clearly and directly implicates the declarant himself in criminal conduct." Id.

¶ 29. During the motion in limine hearing, the burden was on Fontaine to prove that Walker's affidavit, when executed, exposed him to criminal liability. A review of the record reveals that, while Walker's affidavit does place all the criminal liability on him, it also was executed after he had entered a plea of guilty for that conduct and had been sentenced to probation. Further, testimony also indicated that Walker was terminally ill at the time he executed his affidavit and it was at the direction of Fontaine's counsel. Therefore, under these circumstances, it cannot be said that Walker would be exposed to further criminal liability at the time he executed his affidavit. Moreover, even if Walker's affidavit was found to be against his penal interest, Fontaine failed to show the statement's "corroborating circumstances ... indicate ... its trustworthiness." M.R.E. 804(b)(3)(B). While the affidavit was sworn, it was created at the direction of Fontaine's counsel and was created after he had pleaded guilty and was sentenced. The trial judge noted such circumstances, commenting: "to say it's not self-serving is an understatement." Therefore, we cannot say the trial judge abused his discretion in finding that Walker's affidavit was pure hearsay.

III. Whether Fontaine Was Denied A Fair Trial Due To Prosecutorial Misconduct

¶ 30. Fontaine argues that several instances of prosecutorial misconduct occurred, which infringed upon his right to a fair trial. Specifically, he takes issue with McDaniel's testimony and statements that were made during the State's closing argument. Finding that neither instance rises to the level of prosecutorial misconduct, this issue has no merit.

¶ 31. The standard of review this Court applies to allegations of prosecutorial misconduct is "[w]here prosecutorial misconduct endangers the fairness of a trial and the impartial administration of justice, reversal must follow." Anderson v. State , 154 So.3d 42, 57 (¶ 48) (Miss. Ct. App. 2014). Fontaine, in his brief, asserts that the State engaged in prosecutorial misconduct because McDaniel "falsely testified that the State had not promised her anything in exchange for her testimony ... [, and] the State failed to correct her false testimony." Fontaine asserts that during cross-examination, McDaniel admitted that the State promised to recommend her probation in exchange for her testimony against Fontaine. However, a review of the record does not support this argument.

¶ 32. As mentioned above, McDaniel did take the stand and testify as part of the State's case-in-chief. On direct, when asked whether she had been promised anything by the State of Mississippi, she responded "[n]o sir" and explained that she knew she was going to court soon and "whatever [her] punishment is, [she'll] take it." Further, on cross examination, she testified that she did not know what punishment she was going to get and that the State did tell her that they would recommend probation for her. However, on re-direct examination, she testified that the reason she was being honest in court was that she wanted to tell the truth and "just get on with my life." Therefore, it remains unclear if the State promised McDaniel anything in return for her testimony against Fontaine, and as such we cannot say prosecutorial misconduct occurred.

¶ 33. Next, Fontaine asserts that his trial was prejudiced by the State's improper argument regarding his failure to call two witnesses: Mississippi Power Investigator Mike McQueen and his bail bondsman Tony Graves. Fontaine asserts that the prosecution's comments were made to prejudicially etch into the minds of the jury that the missing witnesses would have testified adversely to Fontaine. However, like his previous allegations of prosecutorial misconduct, this contention lacks merit.

¶ 34. In instances of alleged prosecutorial misconduct during closing arguments, the standard of review is as follows: "whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created." Fortenberry v. State , 191 So.3d 1245, 1251 (¶ 18) (Miss. Ct. App. 2015). Further, "[c]ounsel is allowed considerable latitude in the argument of cases." Id. "He is not limited to the facts introduced into evidence, but he may argue the deductions and conclusions that may reasonably be drawn therefrom." Id.

¶ 35. In the present case, the State, during closing argument, did impermissibly comment on Mike McQueen, to which defense counsel objected. Following this objection, the Court acknowledged that while McQueen was on the witness list, he never was called as a witness, and therefore his potential testimony was not in evidence. Accordingly, the State withdrew its statement and continued with the closing argument. Therefore, the State's mention about McQueen's presence on the defense's witness list was withdrawn and does not rise to the level of prosecutorial misconduct.

¶ 36. Similarly, the prosecutor during closing arguments commented on Fontaine's failure to call his bail bondsman. Fontaine argues that this comment also was made to prejudice the jury into believing his bail bondsmen would testify against him. However, a review of the record indicates that an objection to this comment never was made at trial. Therefore, appellate review of this error is procedurally waived. See Dampier v. State , 973 So.2d 221, 234-36 (¶¶ 38-40) (Miss. 2008) (holding argument that prosecutor made comments that were unsupported by the evidence was procedurally barred because defendant did not object); see also Ross v. State , 954 So.2d 968, 1001 (¶ 71) (Miss. 2007) (holding "failure to object to the prosecution's statements in closing argument constitutes a procedural bar").

IV. Whether The Evidence Presented At Trial Was Legally Sufficient To Support The Verdicts

¶ 37. Fontaine contends that the State's evidence was insufficient to support the guilty verdict on both counts. Specifically he asserts that McDaniel's accomplice-testimony was unreasonable, self-contradictory, and substantially impeached and therefore was not sufficient to support a conviction. Further, Fontaine asserts that the inference of his guilt from possession of stolen property was weak and insufficient to support a conviction.

¶ 38. When addressing the legal sufficiency of evidence, we consider all evidence in the light most favorable to the State. Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (abrogated on other grounds by Little v. State , 233 So.3d 288 (Miss. 2017) ). Credible evidence consistent with guilt must be accepted as true. McClain v. State , 625 So.2d 774, 778 (Miss. 1993). The relevant inquiry is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bush , 895 So.2d at 843 (¶ 16). Further, "[i]t is within the discretion of the jury to accept or reject testimony by a witness, and the jury may give consideration to all inferences flowing from the testimony." Johnson v. State , 832 So.2d 1263, 1265 (¶ 3) (Miss. Ct. App. 2002) (quotation marks omitted).

¶ 39. Having reviewed the evidence in the case, we find that it was sufficient. We first must note that "the jury is the sole judge of the credibility of the witness." Harris v. State , 970 So.2d 151, 156 (¶ 20) (Miss. 2007). Therefore, although McDaniel's testimony and the testimony of Fontaine's witnesses may conflict, the jury was entitled to believe whomever's story they found to be most credible. McDaniel's testimony and the corroboration provided by other State witnesses supplied sufficient evidence for conviction on both counts. McDaniel testified that she, Fontaine, and Walker agreed to break into the Cooleys' trailer and take the property that was stored there. Further, she testified that while they were unable to enter through the front door, Walker entered a window and let the other two in through the front door. McDaniel went on to testify about how they gathered up all the items in a blue tarp including: rods and reels, CDs, movies, a Browning bow, arrows, and NASCAR stuff and carried them to Walker's trailer, where they all three lived. Moreover, McDaniel testified that the next morning, she and Miranda gathered the stolen property and placed it in various closets throughout the house.

¶ 40. McDaniel's version of the events was consistent with the testimony of Officer Varner, who investigated the initial report of stolen goods. Officer Varner testified that he was shown the window through which the perpetrators entered the trailer and that the stolen property was recovered in Fontaine's bedroom. He testified that the stolen property included CDs, movies, an old Browning bow, arrows, rods and reels, and NASCAR stuff. Further, Officer Varner testified that Fontaine stated the rods and reels belonged to his brother Tony. Tony, however, testified that he did not give any fishing poles to his brother around the day of the incident, and while Tony had similar fishing equipment, he did not recognize all of the equipment recovered from Walker's trailer.

¶ 41. In short, reasonable jurors could have reached different conclusions regarding each element of the offenses. Therefore, this issue is without merit.

V. Whether The Jury's Verdicts Were Against The Overwhelming

Weight Of The Evidence

¶ 42. "A challenge to the weight of the evidence is separate and distinct from a challenge to the legal sufficiency of the evidence." Thomas v. State , 48 So.3d 460, 469 (¶ 20) (Miss. 2010) (citing Fleming v. State , 732 So.2d 172, 183 (¶ 36) (Miss. 1999) ). When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, "we weigh the evidence in the light most favorable to the verdict, 'only disturbing a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.' " Little v. State , 233 So.3d 288, 292 (¶ 21) (Miss. 2017) (quoting Lindsey v. State , 212 So.3d 44, 45 (¶ 4) (Miss. 2017) ). Therefore, "when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony." Id. (¶ 20).

¶ 43. Applying this standard here, we find that there was no abuse of discretion. Viewing the evidence in a light most favorable to the verdict, the trial court did not sanction an "unconscionable injustice." McDaniel testified that Fontaine was involved in the burglary of the Cooleys' trailer, and the stolen items were recovered in his bedroom. Any conflicting portions of McDaniel's testimony were thoroughly presented to the jury. The jury resolved these conflicts and concluded that beyond a reasonable doubt Fontaine was guilty of both conspiracy and burglary of a nonresidential dwelling. Therefore, this issue is without merit.

CONCLUSION

¶ 44. In summary, Fontaine's failure to proffer the full audio-recorded polygraph interview procedurally bars this Court from reviewing Fontaine's assigned error and leaves this Court without the ability to review the contents. Further, the circuit judge did not err in excluding Walker's affidavit, and the alleged prosecutorial misconduct did not result in an unfair trial. Moreover, the evidence presented was legally sufficient to return guilty verdicts, and the jury's verdicts were not against the overwhelming weight of the evidence. Therefore, we affirm the circuit court's denial of Fontaine's motion for judgment notwithstanding the verdict or, in the alternate, a new trial.

¶ 45. AFFIRMED.

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

¶ 46. I respectfully dissent from the majority's opinion. Among the issues he raises on appeal, Fontaine asserts that the circuit court erred by allowing the State to introduce a two-minute excerpt from his audio-recorded polygraph interview while also denying his request to admit the remainder of the interview. Because I find Fontaine was entitled to have the remainder of his recorded statement about the offenses admitted into evidence after the State introduced an excerpt of the taped statement, I would reverse Fontaine's convictions and remand the case for further proceedings. In so finding, I recognize that Fontaine's polygraph interview "may contain considerable material which is not relevant or material" and that a "trial judge has ample power in his sound discretion to limit the introduction into evidence ... those portions of the recording which are relevant and material." Sanders v. State , 237 Miss. 772, 777, 115 So.2d 145, 147 (1959).

¶ 47. On June 23, 2010, Petal Police Department Officer Rick Varner responded to a call about a burglary complaint at a local trailer park. Upon arriving at the trailer park, Officer Varner spoke with William Cooley, who reported that his trailer had been burglarized. Although in the midst of moving, William and his wife, Kimberly Cooley, still had some of their belongings in the trailer. William returned to the trailer on June 23, 2010, to discover that several items were missing. After verifying that his wife had not removed the items, William contacted the police and reported the following items stolen: fishing rods and reels, NASCAR collectibles, CDs, DVDs, a bow, and arrows. William showed Officer Varner a window that the perpetrators used to enter his trailer.

¶ 48. Along with Officer Varner, Petal Police Department Investigator Ken Bullock investigated the burglary. The officers received information that the stolen property might be in another trailer in the trailer park owned by Mark Walker. When the police arrived at Walker's trailer, they found Walker, his girlfriend Aundrea McDaniel, and his co-worker Fontaine sitting on the front porch. At the time of the burglary, Fontaine, his wife Miranda, and their two children lived in a bedroom in Walker's trailer. The Fontaines occupied one of the trailer's bedrooms, and Walker and McDaniel occupied the other bedroom.

¶ 49. After obtaining Walker's consent, the police searched his trailer. Prior to the search, Officer Varner asked whether there was any hunting or fishing equipment or other items in the trailer about which the officers needed to know. Fontaine responded that the only fishing equipment he knew of was a child's rod and reel he bought for his child.

¶ 50. Officer Varner and Investigator Bullock proceeded to search the trailer. The officers observed some of the stolen items in plain view on Walker's den floor. They observed additional items reported stolen in Walker's living room and in the bedroom occupied by the Fontaines. After entering the Fontaines' bedroom, Officer Varner noticed a partially open closet door. Officer Varner glanced inside the closet and saw two BB guns that also were reported stolen. After removing a mattress wedged behind the closet door, Officer Varner discovered several fishing rods and reels, a Browning bow, arrows, NASCAR memorabilia, and a bag containing CDs and movies. The officers also discovered some stolen items in Walker's bedroom. After completing their search, the police took the Fontaines, Walker, and McDaniel into custody.

¶ 51. After reading Fontaine his constitutional rights, Officer Varner placed Fontaine into the back of his patrol car. According to Officer Varner, when Investigator Bullock exited Walker's trailer holding the fishing equipment, Fontaine claimed the equipment belonged to his brother, Tony Fontaine. At Fontaine's trial, however, Tony testified that he did not know to whom the fishing equipment belonged. While stating that he owned some similar fishing equipment, Tony testified that he did not recognize all the equipment recovered from Walker's trailer. Tony also denied that he gave the fishing equipment to his brother.

¶ 52. After being taken into police custody, Fontaine provided a written statement of his whereabouts on the day of the burglary. In the pretrial statement, Fontaine said that he got home from work around 3:33 p.m. and took a bath. He claimed that he heard a noise and saw Walker toting a "basket of something[.]" Fontaine then wrote that he returned to his bedroom and slept until his daughter returned from her friend's house. Fontaine next stated that he got up around 4:30 a.m. the following day to go to work.

¶ 53. On May 16, 2011, a grand jury indicted Fontaine as a habitual offender of burglary of a nonresidential dwelling and conspiracy to commit burglary of a nonresidential dwelling. Fontaine's trial was set for November 2, 2011. Several days before his trial, Fontaine filed a notice of intent to use an affidavit from Walker, who had died. In his affidavit executed on January 6, 2011, Walker denied that Fontaine was present when the burglary occurred. Instead, Walker claimed that he was the only person at the Cooleys' trailer. The State filed a motion in limine and sought to prevent Fontaine from introducing Walker's affidavit at trial. Following a hearing, the circuit court found the affidavit was hearsay and self-serving and had been untimely disclosed. The circuit court therefore granted the State's motion to exclude the affidavit at trial.

¶ 54. At Fontaine's trial, McDaniel testified for the State and said that she helped Walker and Fontaine burglarize the Cooleys' trailer. McDaniel stated that Walker entered the Cooleys' trailer through a back window and then opened a door for her and Fontaine. McDaniel testified that she helped Walker and Fontaine gather items from the Cooleys' trailer into a blue tote bag and transport the stolen items back to Walker's trailer. According to McDaniel, the stolen items included DVDs, a Dale Earnhardt plaque, fishing equipment, a bow, and arrows. McDaniel further testified that the next morning she and Fontaine's wife Miranda hid the stolen items in the bedroom closets of Walker's trailer.

¶ 55. During testimony given by a polygrapher named David Clayton, the State moved to introduce into evidence a two-minute segment of an interview between Clayton and Fontaine. Prior to trial, the defense retained Clayton to examine Fontaine. The defense objected to the introduction of the two-minute interview excerpt on the ground that the circuit court should admit the remainder of Fontaine's statement about the offenses into evidence instead of just a short excerpt. Without providing a basis for its ruling, the circuit court overruled the defense's objection and allowed the State to admit the interview clip.

¶ 56. During the audio-recorded excerpt, Fontaine told Clayton his movements on the day of the burglary. While speaking with Clayton, Fontaine stated his wife was interested in renting the Cooleys' trailer. As a result, Fontaine said he went to look at the trailer on the day of the burglary with Walker and McDaniel. Fontaine claimed that they only looked inside the trailer windows. Fontaine then said that he awoke later that night and saw Walker returning with a big blue bag. The next day, Fontaine said that Walker mentioned he had a signed Dale Ernhardt picture. Fontaine also claimed during the interview that he overheard part of a phone conversation in which Walker and McDaniel discussed "putting something somewhere[.]"

¶ 57. The jury also heard testimony from Kimberly, the co-owner of the burglarized trailer. Kimberly testified that, while sitting in front of Fontaine at his pretrial hearing, she overheard a conversation between Fontaine and his bondsman. Kimberly testified that Fontaine told his bondsman that McDaniel allegedly had called the Cooleys and received permission to enter their trailer. Fontaine also purportedly told the bondsman that he entered the Cooleys' trailer with his wife, Walker, and McDaniel, and then the four of them transported the Cooleys' stolen property to Walker's trailer. Kimberly further testified that Fontaine had asked his bondsman if Fontaine could apologize to the Cooleys. Kimberly stated that, upon hearing these comments, she reported them to the police. She also testified that neither she nor her husband ever gave the Fontaines, Walker, or McDaniel permission to enter the trailer.

¶ 58. During the defense's case-in-chief, Fontaine's wife, Miranda, testified about the day of the burglary. Miranda stated that, after taking medicine for a migraine, she fell asleep around 1:45 p.m. and did not awake until the next day. Miranda denied seeing any of the Cooleys' stolen property in Walker's trailer either prior to or after the time she awoke, and she denied participating in the burglary. Miranda stated that the bedroom her family rented in Walker's trailer had two closets. Although the Fontaines used one of the closets, Miranda testified the other closet was off limits because Walker stored his mother's possessions there.

¶ 59. Fontaine also testified on his own behalf and denied participating in the burglary. Fontaine stated that on the evening of the burglary, he was walking his daughter over to her friend's house to spend the night when they encountered Walker and McDaniel. According to Fontaine, McDaniel pointed out the Cooleys' trailer as the one his wife wanted to rent. Fontaine testified that he briefly walked over to the trailer before continuing with his daughter. Fontaine further testified that, when he returned to Walker's trailer, McDaniel asked him how he liked the Cooleys' trailer. When Fontaine answered that he had not really gotten to see the trailer yet, McDaniel purportedly told him that she would make some calls to gather information about the trailer. Fontaine stated that he then continued his usual nighttime routine.

¶ 60. During the night, Fontaine testified that his daughter unexpectedly returned home because she was homesick. As he was just about to go back to sleep, Fontaine stated that he heard another noise and saw Walker pulling a big blue tote bag into the trailer. The next day, Fontaine testified that Walker claimed he had a Dale Earnhardt picture. Fontaine testified, however, that he knew Walker did not own such an item and therefore suspected the picture was stolen. Consistent with his wife's testimony, Fontaine stated that his family did not use the bedroom closet where Walker stored his mother's belongings.

¶ 61. The jury found Fontaine guilty of both burglary of a nonresidential dwelling and conspiracy to commit burglary of a nonresidential dwelling. The circuit court sentenced Fontaine to seven years for burglary of a nonresidential dwelling and to a consecutive five-year sentence for conspiracy to commit burglary of a nonresidential dwelling. The circuit court further ordered that both sentences be served in the custody of the Mississippi Department of Corrections without the benefit of probation, parole, or early release. Fontaine filed an unsuccessful motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Aggrieved, Fontaine appeals.

¶ 62. On appeal, Fontaine asserts the circuit court erred by refusing his request to admit his entire polygraph interview into evidence after the State moved to admit a two-minute excerpt. Fontaine claims the State took the excerpt out of context, and he contends "[he] was, in fairness, entitled to present and have the jury consider the remainder of the interview under the Rule of Completeness." We review the circuit court's admission or exclusion of evidence for abuse of discretion. Cooper v. State , 200 So.3d 1065, 1074 (¶ 32) (Miss. Ct. App. 2016). Because I find this issue dispositive, I decline to address Fontaine's remaining assignments of error on appeal.

¶ 63. Mississippi Rule of Evidence 106 embodies the common-law rule of completion. Rule 106 states that "[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part-or any other writing or recorded statement-that in fairness ought to be considered at the same time." "[R]ule 106 does not necessarily require that when a witness is questioned about a prior written or recorded statement that all the remainder must be offered into evidence, but only that part which 'ought in fairness to be considered.' " Payton v. State , 897 So.2d 921, 945 (¶ 85) (Miss. 2003) (quoting Welch v. State , 566 So.2d 680, 690 (Miss. 1990) ).

¶ 64. The Mississippi Supreme Court has held that "any evidence pertaining to a witness's offer to take a polygraph, refusal to take a polygraph test, the fact that a witness took a polygraph test[,] or the results of a polygraph test is inadmissible at trial by the State or by the defense." Weatherspoon v. State , 732 So.2d 158, 163 (¶ 15) (Miss. 1999). However, our caselaw also recognizes that "even if evidence is otherwise inadmissible, one party can open the door to its admission." Payton , 897 So.2d at 945 at (¶ 86). Furthermore, "[i]t is the general rule, almost unanimously followed, that where the State introduces evidence of statements made by the defendant immediately after a crime, [the] defendant is entitled to bring out the whole of his statement." Tigner v. State , 478 So.2d 293, 296 (Miss. 1985) (quoting Jones v. State , 342 So.2d 735, 737 (Miss. 1977) ). As our supreme court has explained:

In the proof of confessions, the whole of what the accused said on the subject at the time of making the confession should be taken together. The prosecution is entitled to show the whole statement, or if any part is omitted, the accused is entitled to supply it. It is also well settled that if a confession is made under such circumstances as to authorize its admission in[to] evidence, the accused is entitled to have the entire conversation, including any exculpatory or self-serving declarations connected therewith, also admitted.

Sanders , 237 Miss. at 776, 115 So.2d at 146-47 (citation omitted).

¶ 65. In the present case, the State moved to introduce into evidence a two-minute excerpt about the offenses from Fontaine's audio-recorded statement to Clayton. The defense objected to only part of the recording being admitted but failed to proffer the content of the remainder of Fontaine's statement to Clayton. Even so, the record reflects the parties raised no dispute that the remainder of Fontaine's statement to Clayton was consistent with his trial testimony as to the details of what occurred during the time of the burglary and therefore would be material as to the veracity of Fontaine's trial testimony. Without any explanation or stated basis for its ruling, the circuit court overruled Fontaine's objection at trial and allowed the State to introduce only the interview excerpt into evidence.

¶ 66. Upon review, I find the circuit court abused its discretion by refusing Fontaine's request to admit the entire polygraph interview into evidence after the State introduced the two-minute excerpt. The State's introduction of the interview excerpt opened the door to the admission of additional relevant or material portions of the interview that, in fairness, ought to have been considered. See Payton , 897 So.2d at 945 (¶¶ 85-86). See also Sanders , 237 Miss. at 777, 115 So.2d at 147 (recognizing that a recording "may contain considerable material which is not relevant or material" and that a "trial judge has ... discretion to limit the introduction into evidence ... those portions of the recording which are relevant and material"). I therefore would reverse Fontaine's convictions and remand the case for further proceedings consistent with this opinion. Accordingly, I respectfully dissent from the majority's opinion.

WESTBROOKS, J., JOINS THIS OPINION. IRVING, P.J., JOINS THIS OPINION IN PART.

      At the time of the burglary, Fontaine, his wife, and their two children lived in a bedroom in Walker's trailer. The Fontaines occupied one of the trailer's bedrooms, and Walker and McDaniel occupied the other bedroom.

      See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Fontaine's bail bondsman subsequently was identified as Tony Graves.

      At the time of the pre-trial hearing URCCC 9.05 still was in use. However, as of July 1, 2017, Mississippi Rule of Criminal Procedure 17.4(a) has been adopted and replaced URCCC 9.05.

      In his affidavit, Walker swore: "Michael Fontaine was not in the mobile home located in the Forrest Gardens Mobile Home Park at 20 Lynn Ray Road, Petal, MS on June 22, 2010 when the alleged crime was committed.... I was the only person there."

      Mississippi precedent recognizes that, where the State introduces only part of a writing or recorded statement, the defendant is entitled to introduce other related portions that are relevant and material, and a failure to allow the defendant to do so can constitute reversible error. See Lomax v. State , 192 So.3d 975, 989 (¶ 71) (Miss. 2016) (Kitchens, J., concurring); Kniep v. State , 525 So.2d 385, 390-91 (Miss. 1988) ; Jones v. State , 342 So.2d 735, 736 (Miss. 1977) ; Sanders v. State , 237 Miss. 772, 776-77, 115 So.2d 145, 146-47 (1959).

      No mention was made before the jury about Clayton's profession or his administration of the polygraph examination on Fontaine.

      See Kniep , 525 So.2d at 390-91 ; Sanders , 237 Miss. at 776-77, 115 So.2d at 146-47. See generally Lomax , 192 So.3d at 989 (¶ 71) (Kitchens, J., concurring) (discussing the holding in Sanders and the rule of completeness); Jones , 342 So.2d at 736 (acknowledging a defendant's right to introduce into evidence additional relevant and material parts of a statement where the opposing party introduces only a selected portion of the statement).


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

text:
    Edmond Denton REEVES a/k/a Edmond D. Reeves, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01785-COA
    Court of Appeals of Mississippi.
    March 27, 2018 Rehearing Denied August 7, 2018
    ATTORNEY FOR APPELLANT: EDMOND DENTON REEVES (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE E. KOONCE
    BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Edmond Denton Reeves appeals the dismissal of his motion for post-conviction collateral relief (PCCR). We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Reeves was indicted on the charges of murder, first-degree arson, and possession of a weapon by a convicted felon. The circuit court ordered a mental evaluation to determine Reeves's sanity and competency to stand trial. Dr. W. Criss Lott evaluated Reeves on May 14, 2013, and subsequently issued a report.

¶ 3. Regarding competency, Dr. Lott opined, "Reeves has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding in preparation of his defense, and he has a rational as well as factual understanding of the nature and object of the legal proceedings against him." Additionally, regarding sanity, Dr. Lott opined that although "Reeves suffers from an addictive disorder and symptoms of mania and paranoia, he would have known the nature and quality of his alleged actions." Dr. Lott further opined, "Reeves would have known the difference between right and wrong at the time of the alleged offenses."

¶ 4. A competency hearing was subsequently held during which Dr. Lott's findings and opinions were read into the record. Dr. Lott's evaluation report was marked as an exhibit to the hearing and admitted into evidence.

¶ 5. On October 17, 2013, Reeves signed a "waiver of indictment and agreement to prosecution by information" on the charge of second-degree murder. Thereafter, Reeves entered a plea of guilty to second-degree murder, first-degree arson, and possession of a weapon by a convicted felon. During the plea hearing, the State presented the basis for the charges:

Your Honor, ... the defendant is charged with second-degree murder, having alleged on July 9, 2012, in George County, Mississippi, at 158 Havard Road[,] the defendant took two weapons, a shotgun[,] and shot Jarvis Reeves, his father, in the chest[,] and took a rifle and shot his father in the head. His father died in the bedroom of that home.
In ... Count II, arson, ... the defendant is charged with arson, first degree, an occupied dwelling house. We know the fire started in the bedroom and burned the body of the victim[,] too.
In Count III, possession of a weapon by a convicted felon[,] in that on July 9, 2012, he possessed as a convicted felon a shotgun and a Marlin rifle when he had previously been convicted in the State of Louisiana for vehicular manslaughter.

¶ 6. The circuit court subsequently asked Reeves to state in his own words what happened. Reeves responded, "I shot my father and killed him. I set the trailer on fire and I went to where my wife was and I told her what I'd done." Reeves advised the circuit court that although he and his attorney had discussed all possible defenses to the crimes, he "[had] no defense." Reeves further advised the circuit court that he was pleading guilty "because [he is] guilty of these crimes."

¶ 7. On October 18, 2013, Reeves was sentenced to forty years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years suspended, followed by five years post-release supervision on the second-degree murder charge; fifteen years for the first-degree arson charge; and ten years for possession of a weapon as a convicted felon. The sentences were ordered to run concurrently with each other.

¶ 8. On October 16, 2016, Reeves filed a motion for PCCR, which the circuit court dismissed. Reeves now appeals and argues: (1) he was deprived of due process because he did not receive an initial appearance or a preliminary hearing, (2) he received ineffective assistance of counsel, (3) he was not served with the indictment and capias, (4) he should not have been allowed to plead guilty to second-degree murder, and (5) the circuit court should have ensured that a court reporter was present at the hearings.

STANDARD OF REVIEW

¶ 9. We review a circuit court's denial or dismissal of a PCCR motion for abuse of discretion. Wallace v. State , 180 So.3d 767, 769 (¶ 7) (Miss. Ct. App. 2015). However, questions of law are reviewed de novo. Id.

ANALYSIS

I. Due Process

¶ 10. Reeves first claims he was deprived of due process since he did not receive an initial appearance or a preliminary hearing. However, the entry of a valid guilty plea waives the right to an initial appearance and a preliminary hearing. Battaya v. State , 861 So.2d 364, 366 (¶¶ 5-8) (Miss. Ct. App. 2003).

¶ 11. Here, Reeves does not argue that his guilty pleas were invalid. Moreover, the plea petition and the plea-hearing transcript both show Reeves was advised of and understood his constitutional rights, the nature of the charges against him, the minimum and maximum sentences for each charge, and the consequences of his guilty pleas. Additionally, Reeves represented to the circuit court that his decision to plead guilty was not based on threats, coercion, or any promises made to him.

¶ 12. Because the record shows Reeves entered valid guilty pleas, his right to an initial appearance and a preliminary hearing was waived. Accordingly, his due-process claim fails.

II. Ineffective Assistance of Counsel

¶ 13. Reeves next claims he received ineffective assistance of counsel. To prove ineffective assistance of counsel, Reeves must show: (1) his counsel's performance was deficient, and (2) this deficiency prejudiced the defense. Liddell v. State , 7 So.3d 217, 219 (¶ 6) (Miss. 2009) (quoting Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland , 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, Reeves "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

¶ 14. Reeves asserts "his attorney did not make any arguments to the circuit court regarding [his] mental status and did not refute Dr. Criss Lott's expert opinion." However, the record shows there was nothing to argue or refute. Dr. Lott's opinions and findings were read into the record. In response, Reeves's counsel advised the circuit court that he "never had any issues with [Reeves] as far as competency,"

he "had no problems communicating with [Reeves]," and Reeves was always "cognitive" and "knowledgeable of what [they were] doing." Thus, based on counsel's observations of and experience with Reeves, as well as Dr. Lott's professional findings, there was no reason for counsel to argue over Reeves's mental status or refute Dr. Lott's opinions. Moreover, Reeves was given the opportunity to respond to Dr. Lott's report and findings, but Reeves declined.

¶ 15. Reeves further asserts his attorney was not "loyal" to him. Specifically, Reeves argues his trial counsel "worked with the prosecution against the interest of Reeves" and waived his constitutional right to a speedy trial. However, the plea-hearing transcript shows Reeves was advised and understood that by pleading guilty, he was waiving his right to a speedy trial. See Burch v. State , 929 So.2d 394, 396-97 (¶ 6) (Miss. Ct. App. 2006) (valid guilty plea operates as a waiver of the right to a speedy trial).

¶ 16. Additionally, both the plea petition and the plea-hearing transcript show that Reeves was satisfied with his attorney. "Solemn declarations in open court carry a strong presumption of verity." Watson v. State , 100 So.3d 1034, 1038 (¶ 10) (Miss. Ct. App. 2012).

¶ 17. Overall, Reeves has failed to show that his counsel's performance was deficient and that the alleged deficient performance prejudiced his defense. Accordingly, his ineffective-assistance-of-counsel claim fails.

III. Service of Indictment and Capias

¶ 18. Reeves next claims he was never served with a copy of the indictment and capias. However, such claim "fails to meet one of the waiver exceptions to a guilty plea." Morris v. State , 125 So.3d 79, 80 (¶ 5) (Miss. Ct. App. 2013) (citing Jefferson v. State , 556 So.2d 1016, 1019 (Miss. 1989) ). Regardless, during his plea hearing, Reeves advised the circuit court that he had received a copy of his indictment. Accordingly, we find this issue is meritless.

IV. Ex Post Facto Claim

¶ 19. After the subject crimes occurred, Mississippi Code Annotated section 97-3-19 (Rev. 2017) was amended to create the crime of second-degree murder. Reeves claims the circuit court erred in accepting his guilty plea to second-degree murder "when the statute was enacted after the alleged crime."

¶ 20. "An ex post facto law is one [that] creates a new offense or changes the punishment, to the detriment of the accused, after the commission of the crime." Ross v. Epps , 922 So.2d 847, 849 (¶ 5) (Miss. Ct. App. 2006). In Collins v. Youngblood , 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), the United States Supreme Court held that "[l]egislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." However, "an ex post facto claim may be waived through a negotiated guilty plea." Knight v. State , 192 So.3d 360, 364 (¶ 13) (Miss. Ct. App. 2016).

¶ 21. During the plea hearing, the following discussion occurred regarding Reeves's waiver of any ex post facto claim:

COURT: Did you discuss that with [your attorney]?
REEVES: Yes, sir.
COURT: That any laws passed subsequent to the commission of an offense can't be applied retroactively; do you understand that?
REEVES: Yes, sir.
COURT: And you're agreeing to waive that right also?
REEVES: Yes, sir.

¶ 22. Additionally, Reeves signed a "waiver of constitutional rights and ex post facto law," which stated that:

[his attorney] has fully explained to [him] all of his constitutional rights and the issues of ex post facto law as they relate to his charges, and by signing his signature hereto acknowledges that he understands those rights and issues as they apply to his charges, including but not limited to the fact that since this crime occurred, ... Section 97-3-19 was amended to create the crime of [s]econd[-]degree murder[,] which eliminates the possibility of parole as one who have under the [m]anslaughter statute[,] and [Reeves] expressly waives any and all constitutional rights to object to the imposition of the day for day sentence under the [s]econd[-][d]egree murder statute and accepts a day for day sentence, as mandated in Miss. Code Section 47-7-3, as a result of this plea.

¶ 23. Our review of the record shows Reeves was advised of and understood his ex post facto rights. Moreover, the record shows Reeves agreed to waive those rights as a result of his guilty plea. Accordingly, his ex post facto claim fails.

V. Presence of a Court Reporter

¶ 24. Reeves last claims that a court reporter was not present during his competency and plea hearings. Reeves argues "the [circuit] court erred by dismissing the motion [for PCCR] by asserting that transcripts were reviewed when in fact no transcripts of the proceedings existed." However, the record clearly shows a court reporter was present for both the competency and plea hearings. Indeed, a copy of the transcript from both hearings is included in the record. Thus, this issue is meritless.

CONCLUSION

¶ 25. We find no merit to the issues raised on appeal. Thus, we affirm the judgment of the George County Circuit Court.

¶ 26. AFFIRMED.

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

      It appears Reeves's misunderstanding stems from the circuit clerk's letter stating that a court reporter was not present in this case. However, that letter referred to Reeves's PCCR proceedings, not the underlying criminal case.