IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-KA-01916-SCT DAMION LAFREDRICK PACE a/k/a DAMION PACE a/k/a DAMION L. PACE a/k/a DAMIAN LAFREDRICK PACE

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 08/23/2011 TRIAL JUDGE: HON. MARCUS D. GORDON TRIAL COURT ATTORNEYS: ALI MUHAMMAD SHAMSIDDEEN MARK SHELDON DUNCAN STEVEN D. KILGORE COURT FROM W HICH APPEALED: SCOTT COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JARED K. TOMLINSON DAMION L. PACE, PRO SE ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON JASON L. DAVIS DISTRICT ATTORNEY: MARK SHELDON DUNCAN NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED IN PART; VACATED AND RENDERED IN PART - 05/10/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE KITCHENS, P.J., KING AND COLEMAN, JJ. KITCHENS, PRESIDING JUSTICE, FOR THE COURT: ¶1. D a mi o n Laf

rederick Pace was indicted f or one count of burgla r y , t w o c o u n t s o f kidnapping, one count o f f orcible rape, and one count of e xtortion. All f i ve c ounts c oncerned

events that o ccurred on the night of April 14, 2010. T he jury was instructed o n the elem ents

o f b urglary , kidnapping, f

orcible rape, and e xtortion. The jury acquitted Pace of f orcible rap e ,b u t c o n victed him o f one count of extortion, two c ounts o f kidnapping, and one count o f

robbery , a crim e f

or w hich P ace had not been indicted. The Circ u it Court of Scott County sentenced him to twenty y e ars f o r robbery , twenty y ears f or each of the k idnappings, and ten
y ears f or extortion, with the sentences to run consecutively

. ¶2. Pace appeals, arguing that the circuit court erred by deny i ng his m o tion f or a directed verdict and that he received inef f ective assistance of counsel. W e hold that, because Pace was
not indicted f

or robbery and robbery is not a lesser-included of f ense of the indicted crim e of burglary , the trial c ourt’s entry of a judgm ent of conviction of robbery was a plain error that requires vacation of the robbery conviction and sentence. Theref ore, we vacate and render the robbery

conviction and sentence. W e f ind that Pace’s other issues are without m erit. FACTS ¶3. Jessica Goodwin provided m ost of the testim ony a gainst P ace. Goodwin testif ied that,

on April 14, 2010, she was living i n the rural L ake com m unity in Scott C ounty with her fourm onth-old daughter, Melissa, 1 and Melissa’s f ather, who was not present t h a t night. 2 At about 10:00 or 10:15 p .m . , Goodwin was preparing to bathe Melissa when she w a s s t a r t led by a

m asked m an standing in the living room ho l d i n g a g u n . The m an had entered through the unlocked back door. He dem anded m o ney and guns and, when Goodwin said she had none
to give him , he f

orced her to rum m age through her belongings. Later, this m a n was identif ied

1 I n a cco rd an c e w i th th is C o u rt’s p o licy , th e n am e o f th e m in o r v ictim h as b een ch an g ed to p ro tect h er id en tity

.

2 G o o d w in testif

ied th at sh e an d th e b ab y ’s f ath er h ad m arried af

ter th e ev en ts at issu e an d b ef o re P ace’s trial. 2as Darrin W il s o n . D uring the search, another m asked and arm ed m an, later identif ied as Devonte Hughes, appeared. Hughes and W ilson searched the house f or item s to steal. Then
W i lson told Goodwin that she was com ing with them

. ¶4. At gunpoint, W ilson a nd H ughes f orced Goodwin, holding Melissa, out the b ack door and down the road, where a c ar was parked in the bushes. W ilson instructed Goodwin to get in the b ack seat. Then h e got in the driver’s seat and Hughes occupied the f ront passenger’s

seat. They rode back to Goodwin’s house and, as they were l eaving, she saw Pace, whom she recognized as a f

orm e r high school classm ate, standing in f ront of her house. Pace got into the back seat with her and slipped a m ask over his f ace. G oodwin t estif

ied that, as they drove
away , H ughes said “get the TV,” but W ilson said “no” and kept driving. As they turned down another road, Pace leaned f orward and announced that he was ready to have sex. ¶5. Then, W ilson a sked Goodwin whether s h e could o btain m oney , and Goodwin said she thought she could ask her f ather. Hughes , who had taken Goodwin’s cell p hone f rom the house, passed it to h e r , a n d s h e telephoned h er stepm other, A ngela Goodwin. W i lson told Goodwin to say that he wanted $2,000 and not to contact the police or he would kill her and her baby

. G oodwin testif

ied that she com

plied, but she h ad trouble com m unicating because Melis s a w a s cry ing loudly

. Angela Goodwin said that her stepdaughter was hy s terical and Melissa was cry ing so loudly that she c ould barely understand wha t J e s s i c a Goodwin was say i ng, so she handed the phone to Goodwin’s f ather, Tim Goodwin. Tim Goodwin put the speaker phone on, and he and A ngela heard Jessica Goodwin say that the m en wanted $2,000

or she and Melissa would b e killed. Then, W ilson dem anded the p hone f rom G oodwin and

3t o l d h e r to give Melissa to Pace and get out of the car. She com plied. Tim Goodwin to l d
W i lson that he did n o t have $2,000, so W ilson a sked whether he wanted Goodwin and Melissa returned. Tim Goodwin told W i lson he had $500, and W ilson instructed him to put it in a paper bag and place it at the end o f Good Hope Road. T im Goodwin testif ied that he

com plied with this dem a nd. ¶6. Jessica Goodwin testif ied that, when the c a l l e n d e d , Wi lson exited the car and she asked him if she could hold Melissa, who was cry ing. W i lson allowed her to take Melissa f rom Pace. T hen, W i lson began t ouching Goodwin a nd s he said “please d o n ’ t do it.” But W i lson f o rced her to turn around, pushed her against the c ar, a nd raped her at gunpoint as she held Melissa and the other two m en watched. Then, Pace raped Goodwin against the car as she scream ed, “please, n o.” W ilson then asked Hughes if he wanted to h ave sex with her, but he declined, so W ilson ordered Goodwin to pull up her pants and get in the car. ¶7. Jessica Goodwin testif ied that t h e y a l l g o t b a c k i n the car and W ilson drove to Johnstontown Road, where h e stopped and l et Pace and Hughes out. T h en, W ilson drove f arther d own the road to a trailer hom e , p arked i n t h e driveway , and e xited the vehicle. Goodwin observed se v e r a l p e o p l e outside the trailer. W ilson was g one f or f ive to ten

m inutes, during w hich tim e Goodwin contem plated running away with Melissa, but decided it was too dangerous du e t o t h e h i g h probability that they would be captured a gain. W hen
W i lson returned, he telephoned Jessica Goodwin’s f ather, who said h e had dropped of f the

m oney . T hen, W ilson drove G oodwin and Melissa to the end of Good Hope Road, where he took possession of

a brown paper bag with $500 inside.

4¶8. Af

ter collecting the m oney , W ilson drove Jessica Goodwin and Melissa back to the residence on Johnstontown Road, then to a drive w a y that l ed t o a pasture. He ordered Goodwin to get out of the c ar, whereupon s h e exited t h e c a r w i t h Melissa, a nd Hughes walked toward them f

rom the w oods. Then, W ilson walked away in the direction f rom which Hughes had arrived. Hughes t old Goodwin that things had gone too f a r a n d t h a t it wasn’t supposed to be like this. He also said that W ilson had said he w a s g o i ng to kill them , but Hughes would not let that h appen. A f ew m inutes later, W ilson returned with Pace. W ilson held a plastic bottle f

i lled w ith l iquid and ordered Goodwin t o u se it as a douche. Goodwin testif i ed that when she com

plied, the liquid burned her private area. W ilson also dem anded G o o d w i n ’ s u nderwear, which s he gave him

. Then, every one got back into the car, an d
W i lson called Goodwin’s f ather and told him where he could f ind Goodwin and M elissa. He dropped of

f Goodwin and her baby one road away f r om her hom e, and her f

ather prom

ptly picked them up. Goodwin’s f ather drove them hom e, then her stepm other i m m ediately took them to a hosp i t a l , w h ere Goodwin underwent a sexual assault exam i nation. Goodwin testif i ed that her television set had been rem o ved f rom her hom e. ¶9. The next d a y , P a c e w a s a r rested, and, on April 16, 2 010, he gave a statem ent to Of f icers Billy Patrick and W illie Anderson of the S cott County S herif f ’s Departm ent. Pace said that he had stay ed outside while W i lson and Hughes went into G oodwin’s house. He heard a w om an’s scream s com i ng f r o m inside the house, then W ilson em erged f rom the house holding Goodwin and her baby at gunpoint. H u g h es brought a television set and a video gam e console out o f the house and secreted them on the roadside. Then, W ilson and

5Hughes g o t into the car and p i c ked up Pace. Pace said that he whispered to W ilson and

H u g h e s that he and J essica Goodwin knew each other f r om s chool. W ilson parked in a pasture and c alled Goodwin’s f ather to ask f

or m oney f

or the return of Goodwin and Melissa.
Pace sa i d t h a t W i lson dem anded $2,000 but “cam e down to” $1,000 and told Goodwin’s f ather where to drop the m o ney . Then, W ilson ordered Goodwin out of the car, and she handed Mel i s s a t o Pace, but when the baby did not stop cry ing, Pace returned her to Goodwin. Pace said that W ilson raped Goodwin as she held the baby , then “m a de m e have sex with the lady also at gunpoint.” ¶10. Pace said that, next, they dro v e to Johnstontown Road. Hughes and Pace exited the

car and walked to Bridget W ilson’s h ouse, then Hughes borrowed a car f rom Pace’s cousin and picked up the television set and video gam e console. W hen Hughes returned to Bridget
W i lson’s residence, W ilson, who had arrived at som e point, s aid he was g oing t o kill Jessica Goodwin. Resolved to prevent W ilson f rom killing her, Pace and Hughes g ot back into the

car w ith W ilson and Goodwin. W ilson drove to a rem ote a rea and then Pace and W ilson lef t and o btained a bottle of vinegar f rom W ilson’s m other’s house. W hen they returned, W ilson ordered Goodwin to wash with it. W hen they got b ack i nto the car, Pace told W ilson to drop Goodwin of

f , and W ilson called Goodwin’s f ather and told him

where he had lef

t her. ¶11. Pace presented the t estim ony of several witnesses including him self

. Kathry n Moy se

was a f orensic D NA a naly st who had com pared DNA f

rom the v aginal s w ab f rom Goodwin’s s e x u al assault kit w ith D NA f rom buccal (oral) swabs t aken f rom W ilson, Hughes, and Pace. Moy se t estif ied that a single source prof i le was obtained f

rom s em en on

6the vaginal swab, indicating that the sem en on the swab was f rom a single person, and she had determ ined that this single source was Darrin W i lson. ¶12. Darrin W ilson, who was incarcerated f or h is crim es at the tim e o f Pace’s trial, testif ied that he had lived on Johnstontown Road all his lif e and had grown up with P ace. H e testif ied that he and Jessica Goodwin had known each other f or several m ont h s b e f

o re the night in question and, in f

act, m et occasionally in se c r e t t o d o d r ugs together. He testif i ed that, the night of April 14, 2010, he and Goodwin had concocted and e x ecuted a plan to extort m oney f rom her f ather w ith the object of buy ing cry stal m etham phetam ine. He also testif

ied that he had consensual s ex with Goodwin that night, but that Pace never had s ex with her. At som e p o i n t, he went to B ridget W ilson’s house and talked with Pace a nd Hughes. On cros s

exam ination, h e was asked about the b aby , and h e testif ied that Goodwin had the baby with her the entire tim e because she routinely brought the baby w hen they m e t to d o drugs. He testif i ed that P a c e and Hughes had been with them f or part of the night, b ut they had not known of the extortion plan. He denied that Hughes had taken Goodwin’s television set or video gam e console. W ilson testif ied that, a f

t e r h e and Goodwin had gotten the m oney , Goodwin saw a car she t h o u g ht was her boy f riend’s and d em anded to b e dropped of f im m ediately

. W ilson also testif i ed that he had been listening on an open cell p hone line during Pace’s police interview, and he never heard Pace c onf ess. Instead, he overheard the of f icers prom ise Pace that if he signed a prewritten statem ent, he could go hom e. ¶13. Pace testif

i ed in h is own d e f

e n s e, and his testim ony m irrored the version of events provided b y W ilson. P ace testif ied that he was eighteen y ears old on the night of the alleged

7crim es. He s aid that he and Hughes had accom panied W ilson to a wom an’s house. W ilson

went inside and later em erged with Goodwin and her baby

. Then, th e y w e n t to Bridget
W i lson’s house, where W ilson had lef t Hughes and Pace. Pace testif ied that he never saw W i lson with a g un, and he denied that he, Pace, e ver had sex with Goodwin. Pace denied that Hughes had rem oved a television s et or video gam e console f rom Goodwin’s house. He said he was not involved i n the conversation with Goodwin’s f ather about m oney . Further, Pace testif i ed, he never h ad conf

essed, and that what p u r

p o r ted to be h is s igned c onf ession was instead a prewrittten s tatem e nt that the of f icers had c o erced him to sign by holding a gun on him and prom ising that he could go hom e if he signed. ¶14. Pace’s stepf

ather, Marcus W ilson, testif ied o n behalf of P ace that he was present f or Pace’s interview w ith the police. Marcus W ilson said that he urged Pace to t ell the truth, and listened as Pace gave his conf ession and witnessed the of f icer writing down what Pace said.
He testif ied that Darrin W ilson is his nephew. H e also t estif ied that he lives about three m iles
away f rom G o odwin’s house and that his niece, Bridget W ilson, lives down the street. Marcus W ilson testif

i ed that he w as not hom e on the n ight of the crim es. Marcus W ilson did testif y that Pace asked f

or an attorney

during his interview. ¶15. Bridget W ilson t estif ied that Pace and H ughes cam e to her h ouse that n ight and stay ed about thirty or f

orty -f ive m inutes, then departed together. Lorenzo Pace testif ied that he saw Pace and Hughes at Bridget W ilson’s house at a b o u t 9 : 0 0 or 10:00 p.m . on the night in question. They stay e d a

bout thirty or f

orty -f ive m inutes. W hile they w ere there, W ilson cam e in, and shortly all three lef t t ogether. He saw Pace and Hughes again at about 1:00 or 2:00

8a.m ., when Hughes called and asked him to get them f rom Pace’s m other’s house. Hughes’s f ather, Lester Harper, also testif ied. DISCUSSION I. PACE’S CONVICTION OF THE CRIME OF ROBBERY W AS A PLAIN ERROR REQUIRING VACATION OF THE CONVICTION AND SENTENCE. ¶16. Pace’s indictm ent charged him with the f ollowing crim es: C ount O ne, burglary with the intent to com m it larceny ; 3 Count Two, the kidnapping of Jessica Goodwin; Count Three, the kidnapping of Melissa; Count Four, the f orcible r ape of Jessica Goodwin; and Co u n t Five, e xtortion of $500 f

rom Tim Goodwin by threatening to inf lict bodily harm o n Jessica Goodwin. The j ury was instructed on ai d i ng and a betting and on the elem ents of burglary with the intent to com m it larceny , kidnapping, f orcible rape, a

n d extortion. The jury acquitted
P a c e o f f

o r cible rape. Regarding Count One, the jury ’ s verdict f orm read: “Count 1 (Robbery ) W e, the jury f i nd the def

endant, Dam ion Laf

redrick Pace, g uilty as c harged in Count One.” The jury also f ound Pace guilty of the two kidnapping counts and extortion. The trial court polled the jury

and all jurors agreed on the verdict. ¶17. On June 21, 2 0 11, the trial c ourt entered a judgm ent of acquittal of f orcible rape. T he

sam e day , the trial court e ntered a separate judgm ent o f conviction that recited verbatim the

3 C o u n t O n e ch arg ed th at P ace “d id w illf u lly , u n law f

u lly , f elo n io u sly an d b u rg lario u sly b reak an d en ter a certain b u ild in g lo cated in S c o t t C o u n ty , M ississip p i, co m m o n l y k n o w n as, called an d b e in g a d w ellin g h o u se o f th e p r o p erty o f Jessica G o o d w in , w i th th e w illf

u l, u n law f

u l, f elo n io u s an d b u rg lario u s i n t e n t t o tak e, steal a n d carry aw ay certain g o o d s, w ares an d ch attels lo cate d i n said d w ellin g h o u s e an d b ein g th e p erso n al p ro p ert y o f J e ssica G o o d w i n an d k ep t th erein f o r h er u se an d d ep o sit, co n trary to an d in v io latio n o f

S ectio n 9 7 -1 7 -2 3 , M iss. C o d e A n n . (1 9 7 2 ), as am en d ed [

. ] ” 9jury ’s verdict f orm , includi n g “Count I (Robbery ) W e , the Jury , f ind the Def

endant, DAMION LAFREDERICK PACE, guilty as charged in Count I.” This judgm ent shows that the trial court s entenced Pace t o twenty y ears f o r Count I, twenty y ears f or Count II, twenty
y ears f or C ount III, and ten y ears f or Count V, to r

un consecutively

. Wh a t t h e j u dgm ent

co mmu n i c a tes regarding Count One is that Pace was charged with “ COUNT I

- BURGLARY OF A DW ELLING HOUSE,” but convicted of “Count I (Robbery ).” ¶18. On August 1 9 , 2011, P ace’s def e n s e c o u n s e l , A l i S ham siddeen, f iled a letter of withdrawal announcing that he had ceased representation of P ace, that he would not be handling the appeal, and requesting that the trial court appoint appellate counsel f or Pace. 4
On August 23, 2 011, the trial court entered a n o r der that am ended the judgm ent of conviction, providing that The Def e ndant was indicted f

or the crim e o f b urglary of a dwelling house and f orc i b l y t aking contents f

rom the house. T he jury d id not return a v erdict of hou s e h o l d b urglary but returned a verdict o f guilty of robbery

. Theref ore pursuant to the verdict of the jury the Def endant is charged with the crim e of robbery

. T he rem aining portions of the Order en t e red o n June 23, 2011 will rem ain as stated therein. The record d oes not indicate what brought the discrepancy to the trial court’s attention and
prom pted its entry

of the order am ending the judgm ent of conviction.

4 N o o rd er f

ro m th e trial co u rt allo w in g A tto r n ey S h am sid d een to w ith d r aw ap p ears in th e reco rd

. M r. S h am sid d een d id n o t f ile p o st-trial m o tio n s o r a n o tice o f a p p e a l

. P ace, p ro se , in itiated th ese ap p e llate p ro ceed in g s b y f ilin g a late n o tice o f

ap p eal o n N o v em

b er 2 0 , 2 0 1 5

. A f

ter P ace r esp o n d ed to a sh o w -cau se n o tice issu ed b y th is C o u rt, w e su sp en d ed M ississip p i R u le o f A p p e llate P ro ced u re 4 an d allo w ed P ace’s u n tim ely ap p eal to p ro ceed

. 1 0¶19. A review of the a m e nded judgm ent of convict i o n r e veals two apparent purposes. First,

it adjudicated that Pace stood convicted of robbery , n ot burglary

. S econd, with the language “pursuant to the verdict of the jury the Def endant is charged with the c rim e of robbery ,” the trial court seem s, in ef

f e ct, t o have undertaken to am end Pace’s indictm ent to change the charge of burglary t o one of robbery , in an ef f o rt to m ake the charge conf orm to the jury ’s verdict. Although Pace challenges the suf f iciency o f the evi d ence supporting all of the convictions, neither he nor the State has addressed the f act that Pace was judged to have been convicted of

robbery , a crim e f

or which he had not been indicted. ¶20. When a def

e ndant’s substantive or f

undam ental rights are af

f ected, this C o u r t w i l l notice “a plain error not identif ied or distinctly specif

ied.” M.R.A.P. 28(a)(3); Foster v. State , 148 So. 3d 1012, 1018 (Miss. 2014). “Under the plain-error doctrine, ‘there has to be

a f inding of error, and that error m

ust have resulted in a m a n if est m iscarriage of justice f or reversal to o ccur.’” Id. W e w ill f i nd plain error if the trial court h a s d e v i a t e d f r om a legal rule, the error i s plain, clear, o r obvious, and the er r o r p r e j u d i ced the outcom e of the proceedings. Id. (quoting G rayer v. State , 120 So. 3d 964, 969 (Miss. 2013)). ¶21. Both the f

ederal and s tate constitutions require an indictm ent by a grand jury bef ore

a citizen can be p rosecuted f o r a f elony , absent waiver. U.S. Const. Am end. V; Miss. Const. Art. 3 § 27; S

tate v. Berryhill , 703 So. 2d 250, 258 (Miss. 1997). A jury can return a verdict

o n the c harged of

f ense or on a lesser-included of f e n se. M iss. Code Ann. § 99-19-5 (R e v . 2015). T his Court has recognized that “only a g rand jury can advise a def endant of what he is to be charged w ith.” Berryhill , 703 So. 2d at 257 (citing Stirone v . United S tates , 361 U.S.

1 1212, 218, 80 S. C t. 270, 273

- 74, 4 L. E d. 2d 252 (1960) ( “The v ery purpose of the

requirem ent that a m an be i ndicted by grand jury i s to l im it his j eopardy to of f enses charged by a group of h is f

ellow c itizens acting i ndependently o f e i t h e r prosecuting attorney or judge.”). A court is n ot e m p owered to alter or a m end the substance of an indictm ent returned by the grand jury

. Berryhill , 703 So. 2d at 257. ¶22. Pace’s i ndictm ent charged him with burglary with the intent to com m it larceny , and the jury was instructed on the elem ents of burgla r y w i t h t h e i ntent to c om m it larceny

. The crim e of robbery was not a l leged in the indictm ent, and the jury was not instructed concerning that c rim e. But the jury returned the f ollowing verdict: “Count I (Robbery ) W e, the Jury , f ind the Def

e ndant, DAMION LAFREDERICK P ACE, guilty as charged in Count I.” According to Unif

orm Rule of Circuit and C ounty C ourt Practice 3.10, “If a verdict i s so def ective that the court cannot determ ine f rom i t the intent of the jury , the c ourt shall, with proper instructions, direct the jurors to reconsider the verdict. No verdict shall be accepted until i t c learly ref

lects the intent of the jury .” URCCC 3.10. 5 “The g e n e r al rule is that the

court m ay require the jury t o clear up an indef inite and a m

biguous verdict, and, ‘[ i ]ndeed, it is the duty of the court to direct the jury to r econsider their verdict w h en satisf ied that there has been a palpable m istake.’” Anderson v. State , 231 Miss. 3 52, 359-60, 95 So. 2d 465, 467 (1957).

5 R u l e 3

. 1 0 o f th e U n if

o r m R u les o f C i rcu it a n d C o u n ty C o u rt P ractice w as in ef f ect at th e tim e o f P ace’s trial. Ju ry v erd icts i n c r im in al cas e s n o w are g o v ern ed b y R u le 2 4 o f th e M i ssissip p i R u les o f

C rim in al P ro ced u re, w h ich b ecam e ef f ectiv e J u ly

1 , 2 0 1 7

. 1 2¶23. W h en the jury returned a verdict o f g uilty of the unindicted crim e of robbery , the trial

court did not consider w hether the verdict was am b iguous or m istaken and then determ ine whether t o return the jury to d eliberations t o reconsider its verdict. Instead, the trial court f ound that the j ury ’s intent had been to convict Pace of robbery ; acc o r d i n g l y , i t entered a judgm ent of conviction of robbery . Later, in the am ended judgm e nt of conviction, the trial

court reiterated that Pace had been convicted of robbery and added that the jury ’s verdict had “charged” him

with robbery . Because a court c a nnot m ake, alter, or substantively am end a f elony i ndictm ent, and only the grand jury can return an in dictm ent, the trial court plainly erred by f i nding that the petit jury ’s verdict had charged P ace with robbery

. See Berryhill , 703 So. 2d at 2 57. And because Pace had been indicted f or burglary , not the entirely distinct crim e of robbery , and robbery is not a lesser-included o f f ense o f burglary , Pace could not be convicted of robbery

. 6 Pace’s conviction of robbery , a crim e f o r which he neither had been indicted nor had he waived indictm ent, was a plain, clear, and o bvious error that v iolated his f undam ental rights under the United States Constitution and the Mississippi Constitution and constituted a ma n i f

est m iscarriage of justice. T heref ore, we hold that P ace’s p urported

6 T h e crim es o f ro b b ery an d b u rg lary h av e d if f eren t elem e n ts. A c c o r d in g to th e ro b b ery statu te, “E v ery p erso n w h o sh a ll f elo n io u sly tak e th e p erso n al p ro p erty o f an o th er, i n h is p resen c e o r f

ro m h is p erso n an d ag ain st h is w ill, b y v io len ce to h is p er s o n o r b y p u ttin g su ch p erso n in f ear o f so m e im m ed iate in j u ry to h is p erso n , sh all b e g u ilty o f ro b b ery .” M iss. C o d e A n n . § 9 7 -3 -7 3 (R ev . 2 0 1 4 ). A n d p u rsu a n t to th e a p p licab le b u rg lary statu te, “E v ery p erso n w h o sh all b e co n v icted o f b reak in g an d en terin g th e d w ellin g h o u se o r in n er d o o r o f su ch d w ellin g h o u s e o f an o th er, w h eth er arm ed w ith a d ead ly w eap o n o r n o t, a n d w h eth er th ere sh all b e a t th e tim e so m e h u m an b ein g in su c h d w ellin g h o u se o r n o t, w i th in ten t t o co m m it s o m e crim e th erein , sh all b e p u n ish ed b y c o m m itm en t to th e cu sto d y o f th e D ep artm en t o f C o rrectio n s f o r n o t less th an th ree ( 3 ) y ears n o r m o re th an tw en ty -f iv e (2 5 ) y ears.” M iss. C o d e A n n . § 9 7 -1 7 -2 3 (1 ) (R ev . 2 0 1 4 ). 1 3conviction of robbery was a plain e rror, and we render judgm ent, vacating P ace’s conviction

of robbery

. II. W HETHER THE TRIAL COURT ER R E D BY DENYING PACE’S MOTION FOR A DIRECTED VERDICT. ¶24. The suf

f iciency of the evidence is challenged with a m otion f or a directed verdict, a request f or a perem

ptory instruction, or a m o tion f o r judgm ent notwithstanding the verdict (JNOV). McClain v

. State , 6 25 So. 2d 774, 7 78 (Miss. 1993). Af ter the State rested its case, Pace m o ved f

or a directed verdict, challenging the suf f i ciency of the evidence. T he trial court denied the m otion. Pace then proceeded to present the def e nse c a se. On appeal, P ace argues that, because the State’s e vidence was insuf f icient to s upport a guilty verdict, the trial court erred by deny ing his m otion f

or a directed verdict. ¶25. Pace f

a iled to renew his m otion f or a d irected verdict a t t h e c l o s e o f e v idence or request a perem

ptory instruction. Moreover, he did not f ile a po s t

- t rial m otion f

or JNOV. “W hen the def

endant proceeds with his c ase af ter the state rests and the court overrules the def endant’s m otion f

or a dire c t e d v e r d i c t, the def endant has w aived the appeal of that directed verdict.” Holland v. State , 656 So. 2d 1192, 1 197 (Miss. 1995). “ In the absence of

a renewal of the directed v e r d i c t , a r equest f or a perem

ptory instruction, o r a m otion f o r a judgm ent n otwithstanding the verdict, [ the def e ndant] has waived the suf f iciency error on appeal.” I d. Pace did not preserve his c hallenge t o the suf f iciency of the evidence f

or appeal because he d id not renew h is m otion f or a directed verdict at the close of evidence, request

a p erem ptory instruction, or f

ile a m otion f

or JNOV. Because Pace f ailed to preserve this
argum ent, it was waived.

1 4III

. W HETHER PACE RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL. ¶26. Pace, with new appellate co u n s e l , a r g u e s that he received i nef f ective assistance of counsel f or two reasons. F irs t , he com plains of def

ense counsel’s f

ailure to m ove f

or a d i r e cted verdict or f

ile a post-trial m otion f

o r JNOV or a new trial. Second, he ar g u e s t h a t def ense counsel did not o bject to the adm ission of his conf ession and of

f er the testim ony of
Marcus W ilson that Pace had requested an attorney during his police interview. ¶27. A crim inal d ef

e n d a n t h a s a s t a t e a n d f ederal constitutional right to the ef f ective assistance of counsel. U.S. Const. Am end. VI; U.S. Const. Am end. XIV; Miss. Const. Art. 3, § 26; Strickland v. Washington , 466 U.S. 668, 687-88, 1 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prove i nef

f e ctive assist a n ce of counsel, the d ef endant m ust show that (1) counsel ’ s perf

orm ance was def

i cient, a nd (2) the def

i ciency p rejudiced the def ense. Strickland , 4 6 6 U.S. at 687, 1 04 S. Ct. 2052. To show def i cient perf

orm ance, a def

endant

m ust show that c ounsel’s perf o rm ance “f

e ll below an objective standard of reasonableness.” Id. at 688, 1 0 4 S

. C t

. 2052. But a strong presum ption e xists that counsel’s perf orm ance constituted trial strategy a n d w a s “within the wide r ange of r easonable prof essional assistance.” Id. at 689, 104 S

. Ct. 2052. Prejudice is dem o nstrated b y a showing of “a reasonable probability that, but f or counsel’s unprof

essional errors, the r esult of the proceeding would have been dif f erent.” I d. at 694, 104 S. Ct. 2052. ¶28. Ordinarily , c laim s of inef f ective assistance of counsel are not a d d r e s s e d on direct appeal. Wilcher v. State , 863 So. 2 d 776, 825 (Miss. 2003) (“[ i]t is unusual f or this [ C]ourt

to consider a claim o f inef f e ctive assistance of couns e l w h e n t h e claim is m ade on direct

1 5appeal,” because “there i s usually insuf f i cient evidence within the record to e v a l u a t e the claim ”). “ W h e r e the record cannot support an inef f ective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief , preserving the def

e ndant’s right

to argue the sam e i ssue through a petition f or p ost-conviction relief

.” Id. But if the def

endant is represented by counsel who did not represent him a t trial, and the f a cts s u p p o r t i n g the claim a re f

ully apparent f

rom the appellate r ecord, the Court m a y address the issue. M.R.A.P. 22(b). Because b oth of Pace’s claim s of inef f ective a ssistance of counsel a re based on f acts f ully apparent f

rom the record, we proceed to review them

. A. Failure to File Post-trial Motions ¶29. Pace argues that trial counsel’s f ailure to renew the m otion f or a directed verdict, to

m ove f o r a perem

p tory instruction, or to f

ile post-trial m otions deprived him o f the ef f ective assistance of c ounsel. He claim s the f ailure prejudiced him because i t deprived the judge of the opportunity

to review the weight and suf f iciency of the evidence af ter all evidence had been presented. ¶30. This Court h a s f

ound that a d e f

e n s e a t t o r n e y ’ s f

a i lure to f

ile post-trial m otions challenging the weight and suf f iciency of the evidence constituted def i cient perf

orm ance. Holland , 656 So. 2d at 1197-98. In Holland , the Court f ound that the error had prejudiced the def endant because the evidence had been insuf f icient to sustain the con v i c t i o n ; thus a reasonable probability e xisted that the trial c ourt would have granted a m otion f or a JNOV. Id. at 1198. In Parker v. State , 30 So. 3d 1222, 1235 (Miss. 2 010), def ense counsel m oved f or a directed v erdict at the c lose of all evidence that preserved the def e n dant’s suf

f iciency

1 6argum ent, but r endered def icient perf

orm ance by neglecting to f ile a post-trial m otion challenging the weight o f the evidence. Because the verdic t w a s n ot against the overwhelm ing weight of the eviden ce, the C ourt held that Parker h ad not s hown any prejudice f

rom the error. Id. Recently , in Giles v. State , 187 S o. 3d 116, 1 25-26 ( Miss. 2016), this Court, rely i ng o n Holland , f ound that counsel had rendered d e f i c i e n t perf

orm ance by f ai l i n g to f

ile p ost-trial JNOV a nd new trial m o tions, b ut that the def i ciency had not prejudiced Giles because the weight and suf f iciency of the evidence were such that there was no reasonable probability that either m o tion would have been granted. ¶31. A s i n H

o l l and , Parker , a nd Giles , the f a ilure o f Pace’s counsel to f ile post-tr i a l

mo t i o ns attacking the weight a nd suf f iciency of the evidence constituted def icien t perf orm ance. There was no strategic reason f or the lawy er’s f

ailure to f

ile any post-trial

m otions. Nonetheless, Pace has not shown that any prejudice resulted f r om the f ailure, because, as discussed below, there is no reasonable probability that either m otion would have been granted. ¶32. On review o f th e s u f f i c i e n c y of the evidence, “the critical inquiry is whether the evidence s hows bey ond a r easonable doubt that the accused c om m itted the a ct charged, and that h e d id so u nder such circum stances that every elem ent of the o f f ense e x isted; and where the evidence f

ails t o m eet th i s t e s t it is insuf f i cient to support a conviction.” Swanagan v. State , 229 So. 3d 698, 703 (Miss. 2017) (quoting Fagan v. State , 171 So. 3d 496, 503 (Miss. 2015)). If any r a tional trier of f act could have f

ound each elem ent of the crim e bey ond a reasonable doubt, the Court will af f irm

. Swanagan , 229 So. 3d at 703 ( quoting Fagan , 171

1 7So. 3d at 503). “W hen reviewing a denial of a m otion f o r a new trial b ased on an objection

to the weigh t o f t h e e v i d ence, we will only disturb a v erdict when it is so contrary to the

o v e r whelm ing weight of the evidence that to allow it to stand would sanction a n unconscionable injustice.” Swanagan v. State , 229 So. 3d 698, 705 (Miss. 2017). ¶33. Pace’s c onvictions of two counts of k i d n a p p i n g a n d o ne count of extortion were based on the theory that he was an aider and abettor to the crim es. “ Any p erson who, without lawf ul authority a nd with or without intent to secretly conf ine, shall f

orcibly s e i ze and

c o n f i n e a n y o t her person, or s hall inveigle o r kidnap any other person with intent to cause such p erson to be conf

ined or i m

p risone d a g a i n st his or her will” is guilty of kidnapping. Miss. C ode Ann. § 97-3-53 (Rev. 2014). “A p erson is g uilty o f extor t i o n i f he purposely obtains or attem

pts to obtain property

of another or any

reward, f avor, or advantage of

any kind by threatening t o inf

lict bodily injury on a ny person . . . .” Miss. C ode Ann. § 97-3-82(2) (Rev. 2 0 1 4 )

. U n der Mississippi Code Section 97-1-3, “[ e]very person w ho shall be an accessory to any f

elony , bef ore the f act, shall be deem e d and considered a principal, and shall be indicted and p unished as such; and this w hether the principal h ave been previously convicted or not.” Miss. Code Ann. § 97-1-3 (Rev. 2014). “Any person who is present at the

com m ission o f a crim i nal of f ense and aids, counsels, o r e n c ourages another in the

com m ission of that of

f ense is an ‘aider and abettor’ and is equally g uilty with the principal of f ender.” Hoops v. State , 681 So. 2d 521, 533 (Miss. 1996). However, the def endant’s m ere presence when another person suggests possible f uture crim inal a ctivity does n o t create

1 8crim inal liabil i t y a s an aider and abettor. Clem ons v. State , 482 So. 2d 1102, 1 106 (Miss.

1985). ¶34. Pace does not d ispute that Marcus W ilson and Devonte Hughes com m i tted the crim es. His argum ent is that the evidence w as insuf f icient t o have enabled a rational jury t o conclude, bey ond a r easonable doubt, t h a t his participation am ounted t o m o re than being m erely present while others suggested possible f u t u r e c r i m inal a ctivity

. Pace points o ut that he was never inside Goodwin’s h o m e, he did n o t r em ove Goodwin and her baby f rom the hom e at gunpoint, and he d i d not call G oodwin’s f ather to extort m oney . However, Pace conf essed

to his involvem ent in the crim e s of k idnapping and e x tortion. And G oodwin’s testim ony established that, while Pace d id not com m it the acts o f k idnapping and extortion him self , he

accom panied and encouraged W ilson and Hughes. Goodwin’s testim o ny a nd Pace’s conf ession largely corro b o r a ted each other with regard to the detailed events of the night. Theref ore, no reasonable probability exists that the tr i a l court would have granted Pace’s

m otion f or JNOV. Nor is there a reasonable probability that the trial court would have f ound that the evidence p reponderated so heavily against the v erdict that the verdict was against the overwhelm ing weight of the evidence. W e f ind that P ace h as not shown that trial counsel’s f ailure t o f ile post-trial m otions violated his constitutional right to the e f f e ctive assistance of counsel.
B. Failure to Challenge the Admission of the Confession and Present W itness Testimony ¶35. Next, Pace argues that h i s trial counsel rendered inef f ective assistance by f

ailing to object t o the adm ission o f his conf ession and present t h e t e s t i mo n y o f Pace’s stepf ather,

1 9Marcus W ilson. Pace did not m ove to suppress his conf ession. The S tate sought to adm it the conf ession during the testim ony of Of f icer Patrick. A t that point, the trial court excused the jury , a nd then the State presented t h e t estim o ny of the two of f icers who h ad b een present during the interview with Pace. T hey t estif ied that Pace had waived his Miranda 7 rights and that n o threats or prom ises had been m ade to secure his conf ession. Both o f

f icers also testif i ed that n either Pace nor Marcus W ilson, w ho h ad been present during the conf ession, had asked f

or a n attorn e y . At the conclusion of the of f i cers’ t estim ony , def

ense counsel declined to present any evidence or argum ent, say ing “W e have no objection.” A t that point, the trial court r

uled that the c o nf

ession was a dm issible b ecause Pace knowingly and voluntarily

had waived his Miranda rights and voluntarily had given his statem e nt. ¶36. On appeal, Pace argues that trial counsel was inef f e c tive because he did not object to the adm ission of the conf

ession a nd present the t estim o ny of Marcus W ilson. During Marcus W i lson’s direc t e x a mi n a t i o n by def ense counsel at trial, he said that he had been present during Pace’s conf

ession, and he gave the f

ollowing testim ony : Q. Okay . W as there m ention of a lawy er at any t im e? A. W ell, Dam ion had said he wanted a lawy er, y o u know. Q. Okay . And what happened? A. It never – it wasn’t none. Q. Okay . W ere y ou willing to provide a lawy er f or him ? A. At the tim e we c ouldn’t, sir, y ou know, not at the tim e we couldn’t. Y ou know, if it was really

to do it, if I could, I would, y ou know.

7 M ira n d a v. A r izo n a , 3 8 4 U .S

. 4 3 6 , 8 6 S . C t. 1 6 0 2 , 1 6 L . E d . 2 d 6 9 4 (1 9 6 6 ). 2 0¶37. In Shinstoc k v . S t a t e , 2 2 0 So. 3d 967, 971 (Miss. 2017), the def endant argued that trial couns e l h a d b e e n inef f ective by f

ailing to f

i le a m otion to suppress. Because an attorney ’s m ere f

ailure to f ile a m o tion to suppress is not inef f ective assistance, we declined to review the issue, holding that the record did not ref lect inef f ective assistance o f

counsel and the claim was m o re appropriately br o u g h t during post-conviction proceedings. In this

case, Pace does m ore than m erely allege that trial counsel w as inef f ective f or f ailing to seek exclusion of the conf

ession. He argues that, if trial counsel had sought exclusi o n o f the conf ession, he w o u ld have b een successf ul in that e ndeavor due t o M arcus W ilson’s testim o ny . Thus, he contends, he was prejudiced by trial counsel’s def icien c y i n f

ailing to

o b j e ct t o the c onf

ession and present Marcus W ilson’s testim ony that P ace had asked f or a lawy er during the police interview. ¶38. “Generally , d ecisions to m ake or f orego c ertain m otions f

all w ithin the am

bit of trial strategy and will n ot c onstitute inef f ective assistance.” Crawford v. State , 218 So. 3d 1142, 1161 (Miss. 2016). But “ [ c]ounsel m ay be deem ed inef f ective where c ounsel f

ails to m ove
to suppress evidence obtained in violation of t h e accused’s constitutional rights if the petitioner shows that the m otion would h a v e b e en m eritorious and that prejudice resulted f rom the evidence’s adm ission.” Id. (citing D avis v. State , 743 So. 2d 326, 336 (Miss.1999)). The accused has been prejudiced if there is a reasonable probability that the outcom e of the trial would have been dif

f erent without the evidence. Evans v. Davis , 875 F.3d 210, 218 (5th Cir. 2 017). Pace conten d s that his presentation of Marcus W ilson’s testim ony at a suppression hearing would have resulted in the exclusion of the conf ession.

2 1¶39. If the a ccused requests coun s e l , “ t h e i n terrogation m ust cease until an attorney is present.” E dwards v. Arizona , 451 U.S. 477, 485, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378 (1981). Bef

ore a conf

ession is adm itted, the State has the burden to p rove bey ond a reasonable doubt that Miranda warnings were given and that the accused gave a knowing, voluntary , and intelligent waiver. Cham berlin v. S t a t e , 9 8 9 So. 2 d 3 20, 332 (Miss. 2008). The determ ination of whether a c onf ession is adm issible is a f

actual inquiry m ade by the trial judge f rom the totality of the circum stances. Kircher v. State , 753 So. 2d 1017, 1023 (Miss. 1999). ¶40. Because Of

f icer P atrick and Of

f i c e r Anderson testif

i ed at the adm i ssibility

hearing that neither Pace nor Marcus W ilson had asked f or an attorney

at any tim e, their testim ony supported the trial court’s f inding that P a c e ’s rights waiver w as knowing, intelligent, and voluntary . If

Marcus W ilson h ad testif ied, the trial court would have had bef ore it contrary testim o ny indicating that Pace had invoked his right to c ounsel. But i n light of the of f icers’ testim o ny that neither Pace nor his stepf a ther ever asked f

or an attorney , the trial court would have been f

ree to have r e

jected Marcus W ilson’s t e s t im o ny even i f it h ad been presented.
Because the trial court could have relied on or rejected Marcus W ilson’s t estim ony , Pace has

not shown that the trial court would have excluded the c o nf ession but f

or c o unsel’s alleged

error. Theref

ore, Pace has not shown that trial counsel rendered inef f ectiv e a s sistance of counsel by f

ailing to object to the adm ission of the conf ession and present Marcus W ilson’s testim o ny .

2 2CONCLUSION

¶41. W e hold that, because Pace was not indicted f or robbery and the crim e of robbery is

not a lesser-included of

f ense of the indicted c r i me o f b u r g lary , the trial court’s e ntry of a judgm ent of conviction of robbery was a plain error that requires vacation of the robbery conviction and s entence. But we af f irm his convictions of two counts of kidnapping and one
count of extortion. Pace’s argum ent that the trial court erred by deny ing his m otion f or a directed verdict is procedurally barred. And his claim s of inef f e c tive assistance of counsel

are without m erit; he has not s hown he was prejudiced by counsel’s f ailure t o f i le post-trial

m otions, and he cannot show that h is conf ession would have b een excluded had trial counsel objec t e d to its adm ission and called his stepf ather as a witness. W e af f irm in part and we vacate and render in part the judgm ent of the Circuit Court of

Scott County

. ¶42. AFFIRMED IN PART; VACATED AND RENDERED IN PART. WALLER, C.J., RANDOLPH, P.J., KING, COLEMAN, M AX WELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

2 3