IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-KA-01416-COA JIMMY T. BROWN A/K/A JIMMY BROWN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 07/07/2015 TRIAL JUDGE: HON. GERALD W . CHATHAM SR. COURT FROM W HICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: JEANINE M. CARAFELLO ROSS R. BARNETT JR. ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: JOHN W . CHAMPION NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, FONDLING BY A PERSON IN A POSITION OF TRUST OR AUTHORITY, AND SENTENCED TO TEN YEARS, W ITH ALL TEN YEARS SUSPENDED, AND TEN YEARS OF POSTRELEASE SUPERVISION, W ITH FIVE OF THOSE YEARS REPORTING AND FIVE NONREPORTING, AND TO PAY $1,000 IN RESTITUTION TO THE MISSISSIPPI CHILDREN’S TRUST FUND; AND COUNT II, FONDLING, AND SENTENCED TO FIVE YEARS; W ITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED AND REMANDED - 04/25/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ. ISHEE, J., FOR THE COURT:¶1. In Novem b er 2013, Jim m y T. B r o w n w a s i n d i c t e d f or one count of f

ondling his granddaught e r w h e n s h e was under the a ge of eighteen, in violation of Mississippi Code Annotated section 9 7 -5-23(2) ( R e v . 2014), and o ne count of f ondling h is granddaughter when she was under the age o f sixteen, in violation of section 97-5-23(1). Brown p roceeded

to trial in the DeSoto County Circuit Court, where a jury f o und him guilty o n b o t h counts. On Count I, Brown was sentenced to a ten-y ear suspended sentence, with ten y ears of postrelease s upervision, t o run consecutively to the s entence f or Count II. On Count II, Brown received a sentence o f f

ive y ears in the custody of the Mississippi Departm ent of Corrections (MDOC). Brown was ordered to pay $1,000 in restitution to the Mississippi Children’s Trust Fund. He now appeals.

STATEMENT OF FACTS AND PROCEDURAL HISTORY ¶2. V.B. 1 is t he granddaughter of Brown, and was twenty -one y ears of age at t he tim e of trial. W hen V.B. was approxim ately three y ears old, her parents divorced, resulting in her living with her m o ther and f a ther separately

at dif f erent tim es in her lif

e. She f i rst went to live with her f

ather in D eSoto County , Missis s i p p i , w h e n she was a round seven y ears old.
V.B. spent a great deal o f tim e with her grandf ather during the tim e she lived with her f ather.
At trial, V.B. testif

i ed tha t o n m

ultiple occasions, w hen s he was between the ages of eight and t hirteen, B rown d i gitally penetrated he r w h e n s h e and Brown were a lone a t Brown’s hom e. She f

urth e r t e s t i f

i e d that som e tim e around t he age of thirteen, she m oved to Oklahom a to l ive with h er m other. V.B. m oved back t o live with her f ather, however, when

1 B ecau se V .B

. w as a m in o r at t h e tim e t h at sh e b ecam e a v ictim o f sex u al ab u se, in itials w i ll b e u sed to p ro t ect h er an o n y m i ty

. 2she w as sixteen y ears old. At that tim e, V .B. explained t hat the sexual abuse resum ed, and

continued to take place until the last incident occurred when she was nineteen y e ars old. ¶3. V.B. testif

ied that when she was either s ixt e e n o r s e v e n t e e n y e a r s o l d , B r o wn penetrated her with his penis. V.B. also elaborated on other i nstances regarding w h at Brown did to her, and where the specif ic acts took place. W h ile V.B. knew that t he abuse took place between the ages of eight and thirteen, and again between t he ages o f sixteen and nineteen, she could not provide specif ic dates due to the recurring nature of the sexual acts. It was not until J uly 2013 that V.B. conf i ded in her brother that she had b een s e xually a bused b y Brown.
H e r brother then inf

orm ed V.B.’s m other regarding the inf o rm a t ion, which l e d V

. B

. t o eventually

report the abuse to the DeSoto County Sherif f ’s Departm ent. ¶4. Detective Jerry O wensby of the s herif f ’s d epartm ent began an investigation into the

m atter. During the course of h is investigation, Owensby interviewed V.B., V.B.’s m other, and other f

am ily m em

bers. At trial, V.B.’s m other c orroborated V.B.’s t estim o ny regarding the tim eline of abusive events. Her m other also explained that she worked w i th authorities

to h elp f urther corroborate V .B.’s a llegations. In doing so, V

. B.’s m other placed a phone call

to Brown in the presence of Owensby , and the p hone call was r ecorded. The p hone call was play ed in the presence of the jury , and included B rown conf irm ing tha t he had m ade inappropria t e c ontact w ith V.B. at his hom e while Brown’s wif e w as at work. Though Brown initially

denied having sexual intercourse with V.B., he eventually adm itted that he had done so to V.B.’s m o ther. ¶5. Following the p hone call, Brown was t aken into custody b y Owensby and interrogated

3at the sherif f ’s departm ent. B rown was properly read his Miranda 2 rights, acknowledged that he understood those rights, and waived them

. Brown of f ered to tell Owensby

whatever he needed to avoid arrest, but O wensby repeatedly told Brown t o tell him the truth. Ultim ately , Brown stated that V.B. had pulled her pants down, that she revealed her private parts to him , and t hat he touched those parts of V.B. Brown c laim e d V.B. was approxim ately seventeen

or eighteen y ears of age a t that t im e, and that h e inf orm ed h i s w i f

e a f t e r wards. Brown additionally adm itted to touching V.B.’s vagina at least f our or f ive tim es total, all while being i n a position of trust and authority over h er. B rown, however, denied e v er having sex with V.B. to Owensby

. ¶6. Brown proceeded to t rial, a nd was convicted by a jury on two counts of gratif ication of lust. Brown f

iled posttrial m oti o n s f

o r a j udgm e n t notwithstanding the verdict (JNOV)

or, in the a lternative, a new trial. The circuit c o urt denied Brown’ s mo t i o n s . B rown now appeals. Finding no error, we af f irm

. DISCUSSION ¶7. On appeal, Brown asserts that the indictm ent f ailed to adequately notif

y h i m of the

nature and cause of the accusations, rendering it def ective; that the S tate f

a iled to prove the essential elem ents of the crim es charged; that the circuit court e rred in deny ing his m otion to suppress; and that he received inef f ective assistance of

counsel. W e disagree.
I. The indictme n t provided Brow n w ith sufficient n otice of t he charges against him . ¶8. Brown asserts that his indictm ent was def ective, as it did not contain s p ecif ic dates,

2 M ira n d a v. A rizo n a , 3 8 4 U

. S . 4 3 6 (1 9 6 6 ). 4a n d thus, did not s uf f iciently n otif

y him of the charges against him

. “The question o f whether an i ndictm ent is def ective is an issue of law and t heref ore d eserves a relatively broad standard of r eview, or de novo review, by [ an appellate c]ourt.” Tapper v. State , 47 So. 3d 95, 1 00 ( ¶17) (Miss. 2010). Under Unif orm Circuit and County Court Rule 7.06, “[ t]he indictm ent u

p o n w h i c h t he def

endant is t o be tried shall be a plain, concise and def inite written s tatem ent of the essential f acts constituting the of

f ense charged and shall f

ully notif y the d ef endant of the nature and cause of t he a ccusation.” Expanding on Rule 7.06, the Mississippi Suprem e Court has held t h a t a n indictm ent m ust contain: (1) the essential elem ents of the of

f e nse c harged; (2) suf

f icient f a cts t o f airly inf orm the d e f

e n d a nt of the charge against which he m ust def end; and (3) suf

f icient f a c ts to e n able him to plead double j e opardy in the event of a f uture p rosecution f

or the sam e of

f ense. Berry v. State , 996 So

. 2d 782, 7 86 (¶8) (Miss. 2008) (quoting G ilmer v. State , 955 So. 2d 829, 836-37 (Miss. 2007)). ¶9. The indictm ent that Brown now challenges reads as f ollows:
Count I: That JIMMY T. BROW N , Late of the County a n d S tate af o r e s a i d, between the dates of July 1, 2009[ , ] and June 30, 2011, and within the jurisdiction o f this Court, did willf ully , unlawf

u lly and f

elon iously , f

or the purpose of g ratif

y ing h i s l u s t or indulging his depraved licentious sexual desires, h andle, touch o r rub with his hands or any part of his

. . . body or any m em ber thereof

, [ V.B.], a child under t he age of eighteen (18) y ears a nd not the spo u se of [ ] B ROW

N; and the said [ ]BROW

N being at the tim e a person above the age of eighteen ( 1 8 ) y ears and occupy ing a position of t rust or a u t h o rity o ver the said [ V.B.], in direct violation of S ection 97-5-23( 2 ) , Mississippi Code 1972 Annotated . . . .
Count II: T hat JIMMY T. BROW N, Late of the County and State af oresaid, between the d ates of July 1, 2001[ , ] and June 30, 2007, and within the jurisdiction o f this Court, did willf ully , unlawf

u lly and f

eloniously , f

or the

5purpose of g ratif y ing his lust or indulging his d e p r a v e d licentious sexual desires, h andle, touch or rub with his hands or any part of his

. . . body or any m em ber thereof

, [ V .B.], a child under the age of sixteen (16) y ears and not the spouse of [ ] BROW

N; and the s aid [ ]BROW

N being at the tim e a person above the age of eighteen (18) y ears and o c c u p y i ng a position of trust or a uthority over the said [ V.B.], in direct violation of Section 97-5-23, M ississippi Code 1972 Annotated . . . .
Brown alleges that the i dentical l anguage and tim e spans set f orth in each count deprived h im of establishing “any def

ense o ther than denial.” Brown also a s s e r ts that the c harges were “indistinguishable.” W e f i nd no m erit to these argum e nts. ¶10. In each count, the State alleged that B rown, being a person over the age of eighteen and in a position of trust or authority over V .B., f ondled V.B. when she was under the age

o f eighteen, and that Brown also did so when V.B. was under the age of s ixteen. T h e indictm ent included the dates V.B. lived in Mississippi, which are the t im es in which Brown h a d a ccess to V.B. Thus, the indictm ent inf orm ed Brown that he was being cha r g e d w i t h
f ondling his granddaughter when she was b etween the ages o f sixteen and sev e nteen, and again when she was between the ages of eight and thirteen. The S tate needed only to prove that Brown inappropriately f ondled V.B. at least once during the tim e spans alleged. ¶11. Generally , an indictm ent tracking the l anguage of the crim inal statute i s suf f icient to inf orm the def

e ndant of the charged crim e
. Batiste v. State , 121 So. 3d 808, 836 (¶43) (Miss. 2013). And as Brown concedes, a specif ic d ate is not r equired s o long as t h e d e f e ndant is
f u lly and f airly inf orm e d of the charges against him

. Morris v. State , 595 So. 2 d 840, 8 4 2 (Miss. 1991). Theref

ore, “it is im

portant that a def

endant be g iven the s pecif i c date or dates of the alleged acts if a t a ll possible .” W i lson v. State , 515 So. 2d 1181, 1183 (Miss. 1987)

6(em

phasis added). Failure to provide specif ic dates a lone, h owever, do e s not render the indictm ent def

ective. Morris , 5 9 5 S o . 2d at 842. Here, the State could not provide exact dates as V.B. herself could not recall specif i c dates due to the recurring nature of t he abusive

acts. Furtherm ore, specif

ic dates of the alleged sexual a b use are not essential elem ents of the crim e charged—rather, the victim ’s age is. Even s o, the exact a g e o f t he victim is not required. In this r egard, the indictm ent specif ied t hat V.B. was under the ages of eighteen and sixteen, respectively , as required by the statute. T hus, as “[ t]he prim ary purpose of

an indictm ent is to give a def endant f air notice of the crim e charged,” w e f i n d that Brown’s indictme n t s u f

f iciently tracks the language of sections 97-5-23(1) and 97-5-23(2), f ully notif y ing him of the nature and cause of the charges against him

. W i lliams v. State , 169 So. 3d 932, 935 (¶9) (Miss. Ct. App. 2014). This issue is without m erit.
II. The State provided sufficient e v idence to prove each essential elem ent of the crim es charged, and the verdict i s not against t he overw h elm ing w eight of the evidence. ¶12. Brown asserts that t he State put f or t h n o e v i d ence of V .B.’s age during any of the alleged acts, o r even of what alleged a c t s t o o k place, thus f ailing to prove bey ond a reasonable doubt each e ssential elem ent of t he crim es charged. In determ ining whether the
State presented legally suf f icient evidence t o s upport the v erdict, “the critical inquiry is whether t he evidence shows ‘bey ond a reasonable doubt that [ the] accused com m i tted the act charged, a nd t hat he did so under such circum stances that ev e r y e l em ent of the of f ense existed[ .]’” Larry v
. State , 2 00 So. 3d 453, 459 (¶15) (Miss. Ct. App. 2016) ( quoting Bush

v. State , 895 So. 2d 836, 843 (¶16) (Miss. 2005)). If , viewing the evidence in the light m ost

7f

avorable to the State, any rational trier o f f act could have f

ound, bey ond a reasonable doubt, that the essential elem ents of the crim e existed, this Court will af f ir m t h e c o n v i ction. Id

. “This Court is not at liberty t o reverse unless, with respect to one o r m ore of the e l em ents of the charged of

f ense, the evidence considered is such that reasonable and f air-m inded jurors could o nly f

ind t he a ccused not guilty .” Miller v
. State , 982 S o. 2d 995, 996 (¶4) (Miss. Ct. App. 2008) (quoting Green v. State , 887 So. 2d 840, 845 (¶9) (M i s s . C t

. A p p . 2004)). “Furtherm ore, the j ury determ ines the credibility of witnesses and resolves c onf licts in the evidence.” Id. (citing Evans v. State , 725 So. 2d 613, 680-81 (¶293) (Miss. 1997)). ¶13. U n d e r M i s s i s s i p p i Code Annotated section 97-5-23(1), the State was required t o p r o v e that: ( 1) B rown was over the age o f eighteen; (2) V.B. w as under the age of sixteen; and (3)
Brown gratif

ied his lust by touching V.B.’s body with h is hands or a ny other part o f his body

. In order to prove the essential elem ents of section 97-5-23(2), the State w as required to prove that: ( 1) Brow n w a s o v e r the age of eighteen; (2) V

. B. was under the age o f eighteen; (3)
Brown touched V.B.’s body with his hands or another par t o f his body f or the purposes of gratif y ing his lust; and (4) Brown held a position of t rust or authority over V .B. at the t im e of the all e g e d of

f ense. W e f

ind the State presented suf f icient evidence regarding each essential elem e nt of

the crim es charged bey o nd a reasonable doubt. ¶14. V.B. testif

i e d to t he actions taken by Brown, including Brown d igitally penetrating her, placing his m outh o n her vagina, and penetrating her with his penis. V.B. f u r t her testif i ed to the t im e f

ram es in which the repeated penetration took p l a c e , which she stated

were when she was b e tween the ages of seven and f ourteen, a nd a gain when she was between

8the ages of s ixteen a nd seventeen. Moreover, the jury heard Brown’s adm ission d uring his interrogation that he was in a position of authority and trust o ver V .B. a t the tim e he

com m itted the abusive actions. T h us, we f ind the verdict is s upported by suf f icient evidence presented by

the State. ¶15. In addition, w e f

ind that the circuit court did not err in deny ing Brown’s m otion f or

a JNOV or, in the alternative, a new trial. “[ This Court] will only disturb a v erdict when it
i s so contrary to the overwhelm ing weight o f the evidence that to allow i t to st a n d w o u l d sanction an unconscionable i njustice.” Bush , 895 S o. 2 d at 844 (¶18). Theref ore, the Court weighs t he evidence “in the light m ost f avorable t o the verdict.” Id

. If the Court disagrees with the verdict of

the jury , “the proper rem edy is to grant a new trial.” Id. Brown asserts the sam e a rgum e nts as above to support that he is e ntitled to a new trial. W e do not so f ind. The jury was presented with conf licting evidence, w eighed that evidence, and r e a c h e d a verdict. Af

ter r e viewing the record and weighing the e v i d e n ce in the light m ost f avorable

to the verdict, we cannot f ind that allow i n g t h e guilty verdict to stand would s anction an unconscionable injustice. This issue is without m erit.
III. The circuit court did not abuse i ts discretion by deny ing Brow n’s m otion to suppress. ¶16. Brown’s argum ent regarding the ci r c u i t court’s denial of h is m otion to suppress is two-f old. First, Brown a sserts that the video-recording o f his interrogation with Owensby should have been excluded. Second, Brown asserts that the video s h ould have been excluded because the interrogation stem m ed f rom a recorded phone call b etween him a nd V.B.’s

m other, which Brown alleges violated his Miranda rights and right to privacy

. Ultim ately ,
9B r o w n a rgues that he did not knowingly , intelligently , or voluntarily waive his Miran d a rights prior to the phone cal l , o r h i s interrogation. Brown, however, did not present any
argum ent bef

o re t he circuit court regarding t he exclusion of t he audio-recorded phone call;

as such, we are not required to address the m erits of that contention as it is procedurally barred. See We b b v
. State , 113 So. 3d 5 92, 602 ( ¶35) (Miss. Ct. App. 2012) ( holding that
f ailure t o s p e c i f

ically state g rounds f

or excluding evidence waives the objection). For the sake of thoroughn e s s , h o w e v er, we will a ddress both of Brown’s argum ents under this heading as they pertain to f undam ental rights protected by the Constitution. ¶17. “This C ourt will reverse a t rial court’s denial of a m otion to suppress only i f the ruling is m anif est error or contrary to the overwhelm i ng w eight of evidence.” Barnes v. State , 158
So. 3d 1127, 1134 (¶22) (Miss. 2015). “The c ircuit court sits as a f act[ -]f ind e r w hen determ ining voluntariness of a conf ession, and i ts determ ination will n ot be r eversed unless

m anif estly wrong.” W

alker v. State , 197 So. 3d 914, 917 (¶9) (Miss. Ct. App. 2016) (quoting
Horne v. State , 825 So. 2d 627, 639 (¶44) ( Miss. 2 002))

. “ C r u cially , ‘the resolution of conf licting testim ony regarding voluntariness is a question of f act to be resolved by the trial judge at the suppression hearing.’” Id. (quoting Chase v. State , 645 S o. 2d 829, 841 (Miss. 1994)). W e will address the phone-call recording f irst, as Brown a s s e r t s its contents instigated Brown’s later interrogation.

A. Audio-Recorded Phone Call ¶18. Brown contends that he was entitled to be warned, o r Mirandized, at the outset of the phone call between him self and V.B.’s m other on the grounds that V.B.’s m other was acting

1 0pursuant to the instruction of Owensby when the call was placed. Brown f urther asserts that he d etrim e ntally relied upon t he belief that t he p hone call was of a personal n ature rather than

at the behest of a law-enf o rcem ent agent, and thus, his f undam e ntal right to p rivacy was illegally violated. W e disagree. ¶19. W e f

ind that Brown had n o r e a s o n a b l e e x p e c t a t i o n o f p r i v a c y i n the phone conversation b etween him self and V.B.’s m o ther. In Bankston v. State , 4 So. 3d 377, 380-81 (¶14) (Miss. Ct. App. 2008), this Court stated: The Mississippi Suprem e Court has held that “electronic surveillance, ‘bugging,’ does not t re a d upon the constitutional rights of the Fourth Am endm ent when the consent of one o f the parties is f i r s t obtained. The expectation of privacy , thoug h perhaps s haken by the m istaken b elief that a person to whom one voluntarily conf ides will not reveal the conversation[ ,] does not reach constitutional proportions.” Everett v. S t a te , 248 So. 2d 439, 443 (Miss. 1971) (citing Hoffa v. United States , 385 U.S. 293 (1966)). Apply ing this long-held p rinciple to the present m atter, t he record clearly ref lects that V.B.’s

m other c o n s e n t e d to the recording of her phone c onversation with Brown. Brown

assum ed—albeit m istakenly —that V.B.’s mo t h er would not c onvey the details of their conversation to law-enf

o rcem ent of

f icers. S ee Everett , 248 So. 2d a t 443. There f o r e , we hold that Brown d id not have a reasonable expectation of privacy d uring his incrim inating conversation with V.B.’s m other. ¶20. In a ddition, B rown was not entitled t o be inf orm ed of his r ight to rem a i n silent at the

outset of the phone call. A s the S tate properly points o ut, “[ u]nder Miranda , the accused

m ust be warned of the right to rem ain silent and the right to an attorney bef ore any custodial
i n t e r r o g a t i on m ay o ccur.” Clark v. State , 40 So. 3d 531, 541 (¶22) (Miss. 2 010) (citin g

1 1Miranda v. A rizona , 384 U.S. 436, 479 (1966)). “ To be subject to custodial interrogation,

one m ust b e both in custody and undergoing interrogation.” W ilson v. State , 936 So. 2d 357,
362 (¶11) (Miss. 2 006). Here, Brown was neither in c u stody nor being interrogated during his conversation with V.B.’s m other. T heref ore, Brown’ s f

u ndam ental rights were not violated, and this issue is without m erit.

B. V i deo-Recorded Interrogation ¶21. Regarding the video-recording of the i nterrogation, Brown argues that the adm issions he m ade through statem ents given during h is interrogation w ere n o t f r eely and voluntarily given, but rather the p roduct o f extrem e m e ntal and p hy sical duress, which t ook place throughout t he interrogation. B r o w n ’ s trial counsel f urther asserted that Brown m erely stated what he thought Owensby w ished to hear in order to release Brown, and on that b a s i s, Brown’s statem ents should have been excluded. The circuit court f o und otherwise. ¶22. Af ter hearing argum ent f

rom both sides at the suppression hearing, and r eviewing the interrogation video in its entirety , the circuit-court judge specif ically f o und that B rown was in no f orm of distress during the interrogation. The circuit court f urther f ound that Brown appeared to be an i ntelligent m a n, and that Owensby n either c oe r c e d B r o w n nor prom ised
him a ny thing in exchange f

or his statem ents. R eviewing the totality of the circum s t a nces, the circuit court f

ound t hat Brown knowingly , voluntarily , and intelligently w aiv e d his Miranda rights bef

ore m ak i n g a n y statem ents. As result, the court held that Brown’s

statem ents were f

reely and voluntarily

given. ¶23. Reviewing the record bef o re this Court, we cannot hold that the c ircuit c ourt abused

1 2its discretion by adm itting into evidence the phone-call recording a n d t h e interrogation video,

as we f ind those decisions were not m anif estly w r o n g o r contrary to the overwhelm ing weight of evidence. Theref

ore, we f ind no m erit to this issue.
IV. Assistance of Counsel ¶24. In this issue, Brown claim s he received inef f ective assistance f

rom his trial counsel because his c ounsel (1) did not m ove to s uppress the t elephone r ecording between Brown and
V.B.’s m other; (2) did not object to leading q uestions; and (3) did not m ove f or a c hange of venue f or Brown’s trial. W e decline to address this issue on direct appeal. ¶25. Rule 22(b) of

the Mississippi Rules of A ppellate Procedure provides:
Issues which m ay be raised in post-conviction proceedings m ay also be raised on direct appeal if such issues are b ased on f acts f ully a p parent f r om the record. W here the appellant is represented by counsel w ho did not represent the appellant at trial, t he f ailure to raise such issues on direct appeal shall constitute a waiver barring consideration o f t he is s ues in post-conviction proceedings. And the suprem e court has held:
It is unusua l f

o r [ an appellate c]ourt to consider a claim of inef f ective assistance o f counsel when the claim is m ade on direct appeal. This is because we are lim ited to t he trial court record in our review of t he claim [ ,] and there is usually insuf

f icient evidence within the r ecord to evaluate the claim

. . . . [ W ]here the record cannot support an i nef f ective assistance of c o unsel claim on d i r e c t appeal, the appropriate conclusion is to deny relief , preserving the def endant’s right to argue the sam e issue through a petition f or post-conviction relief

. [ An appellate c]ourt will rule on the m erits on the r are occasions where (1) the record af

f irm atively s h o ws inef

f ectiveness of constitutional dim ensions, or (2) the parties stipulate that t he record is adequate to allow the appellate court to m ake t he f i n d ing without consideration o f the f indings of f act of the trial judge.
W ilcher v. State , 863 So. 2d 776, 825 (¶171) (Miss. 2003) (internal c itations and quotations

1 3om itted).

¶26. U p o n r e v i e w , t h e r e c o r d does not af f irm atively indicate tha t B r o w n r e c e i v e d inef f ective assistance of constitutional dim ensions. Nor have both p arties explicitly stipulated that the record is adequate to allow us to m ake f indings w ithout considering a trial judge’s f indings of

f a ct. Gordon v. State , 977 So. 2d 420, 425 (¶9) (Miss. Ct. A pp. 2008).
As a result, we decline to address this issue. Thus, w e dism is s B r o w n ’ s claim s under this heading w ithout p r e

j u d i c e t o h i s ability to r aise them in postconviction proceedings, if he chooses to do so.
V. Clerical Error ¶27. Finally , w e have identif ied an apparent clerical error in the sentencing order and f ind it nece s s a r y to rem and f

or the circuit court to correct the error. A t the sentencing hearing, the court pronounced Brown’s sentence on Count I as “ten y ears in t h e M ississippi Departm ent of Corrections. T hat ten y ears will be suspended. Y ou’ll be placed on ten y ears of p o st-release supervision [ (PRS)].” The subsequent written or d e r t r a c ked the PRS

s e n t ence, b ut it f

ailed to m ention the ( suspended) sentence of ten y e a r s ’ im p risonm ent—stating m erely t hat Brown was to “ serve a t erm o f z e r o (0) y ears inc a r c e r ation in [ MDOC custody ].” (Em phasis added). W e f

ind it a pparent this om ission of t he actual term of the suspended sentence (ten y ears) was i nadvertent and a clerical error. W e rem and f

or the circuit court to correct the sentencing o rder f or Count I to i nclude the term of im p risonm ent o f ten y ears in MDOC custody , with all ten y e a rs suspended f o r Brown to

1 4serve the enum erated term of PRS. 3
CONCLUSION ¶28. Upon r evi e w o f t h e r e c o r d , we f ind no m erit to any o f the issues raised o n appeal. Theref ore, we af f irm the f i ndings of

the circuit court. ¶29. T H E J U D G MENT OF THE D ESOTO C O U N T Y C I R C U I T C O U R T O F CONVICTION OF COUNT I, FONDLING BY A PERSON IN A P OSITION OF TRUST O R AUTHORITY, AND SENTENCE OF TEN YEARS, W I T H ALL TEN YEARS S USPENDED, AND TEN YEARS OF POSTRELEA S E S U PERVISION, WITH FIVE OF THOSE YEARS REPORTING A ND FIVE NONREPORTING, AND TO P AY $1,000 IN REST I T UTION TO THE MISSISSIPPI CHILDREN’S TRUST FUND; AND COUNT I I, FONDLING, AND SENTENCE O F FIVE Y EA R S ; W I T H THE SENTENCES T O RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFI R M E D , AND THIS CASE IS REMANDED FOR CORRECTION OF THE SENTENCING O RDER. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C .J. , IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

3 “Wh e re it clearly ap p ears th a t th e j u d g m en t as en t ered is n o t th e sen t en c e w h ich th e law o u g h t to h av e p ro n o u n ced u p o n th e f a c ts as estab lis h e d b y th e reco rd , th e co u rt acts u p o n th e p resu m

p tio n th at th e erro r is a c lerical m i sp risio n rath er th an a j u d icial b lu n d er[ .] ” H a rvey v. S ta te , 9 1 9 S o . 2 d 2 8 2 , 2 8 5 (¶9 ) ( M iss. C t

. A p p . 2 0 0 5 ) (citatio n o m itted ) (citin g B r o w n v. S

u tto n , 1 5 8 M iss. 7 8 , 1 2 1 S o . 8 3 5 , 8 3 7 ( 1 9 2 9 )). “T h e M ississip p i S u p rem e C o u rt h as lo n g h eld th at co u rts ‘h a v e in h eren t p o w er to c o r rect c l erical erro rs at an y tim e, an d to m ak e th e j u d g m en t e n try co rresp o n d w ith th e j u d g m en t ren d e r ed

. T h is p o w er ex ists in crim in al p ro secu tio n s a s w ell as in civ il cases . ’ ” Id

. a t 2 8 7 -8 8 (¶1 4 ) (q u o tin g K itch en s v. S ta te , 2 5 3 M iss. 7 3 4 , 7 3 7 , 1 7 9 S o . 2 d 1 3 , 1 4 (1 9 6 5 )); s ee a lso B ro w n v. S ta te , 1 6 6 S o . 3 d 5 6 5 , 5 6 7 ( ¶¶7 -9 ) ( M iss. C t. A p p . 2 0 1 5 ) (af f irm in g an d rem an d in g f

o r co rrectio n o f th e trial co u rt’s sen ten cin g o rd er w h ere it im p ro p erly s aid th e sen ten ce w as to b e serv ed in M D O C cu sto d y r ath er th a n th e co u n ty sh erif f ’s cu sto d y

); a cco rd H

a rvey , 9 1 9 S o . 2 d at 2 8 7 -8 8 (¶¶1 3 -1 4 ) (f

in d in g n o erro r w h e n , f

o llo w in g rev o catio n o f p ro b atio n , t h e circu it co u rt co rrected its w ritten s en ten cin g o rd er to co n f o rm to th e in t e n d ed sen ten ce p rev io u sly im p o s ed f ro m th e b en ch at th e sen ten cin g h earin g ). 1 5