IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-KA-01214-COA DELBERT KEYES A/K/A DELBERT KEYS JR. A/K/A DELTBER KEYES JR. APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 02/23/2017 TRIAL JUDGE: HON. ROGER T. CLARK COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 12/04/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ. BARNES, J., FOR THE COURT: ¶1. Delbert Key e s was convicted of robbery , kidnapping, and f o rcible sexual intercourse. For each count, he was sentenced to lif e without eligibility f

or parole i n the c ustody of the Mississip p i D e partm ent of Corrections (MDOC) a s a habitual of f ender under Mississippi Code Annotated section 99-19-83 (Rev. 2015), with the sentences to run consecutively

. He appeals h i s convictions, asserting severa l a l l e g ations of error involving the weight and suf f i ciency of the evidence and his status as a habitual of f ender. W e f

ind no error a nd af

f irm

. SUMMARY OF FACTS AND PROCEDURAL HISTORY¶2. During the late evening o f O c t o b e r 18, 2015, seventy -seven y e ar old Liza 1 was at

hom e in Gul f

p o r t , M i s sissippi, when her dog began barking at som ething o utside; so she went to investigate. A m an cam e up behind her and “clam ped” her arm , twisting it behind her back. He f

orced her inside to her bedroom where h e tied her a rm s behind her b ack with han d k e r c h ief

s and f orced her t o lie f

ace down with a pillow over her head. The m an de ma nded m oney . Upset af ter discovering only $60 i n L iza’s purse, the a ssailant took of f Liza’s nightgown a nd attem pted to penetrate h er with hi s p e n i s , using a handkerchief to

cover it. W hile he was attem pting to have intercourse w ith L iza, he t o o k o f f h i s leather jacket. W hen he f

inished with his assault, he began looking f or j ewelry

. Liza t old him there

was an a dditional $100 hidden in her purse, which he t ook. The attacker exited the hom e, leaving behind his jacket, which Liza had kicked under the bed. Liza ran t o her n eighbors’ hom e to c ontact the police. She described the m an as short and heavy s e t. L iza was taken to the h ospital f

or a n exam ination, and the perpetrator’s jacket, L i za’s nightgown, and her handkerchief

s were sent f

o r DNA analy s is. ¶3. A f

ew day s later, Leonard Bankston, a l o c a l h a ndy m a n who had worked f

or Liza, heard of the assault and reported to the p olice that he suspected his neighbor, K ey es, was the perpetrator. Following up on Bankston’s tip, Detective Christopher W erner located Key es at his sister’s apartm e nt. T he detective noted that Key es was a “[ s]horter, heavier set individual,” m atching L i z a ’ s d e s c r i p t i o n of her assailant. D e t ective W erner conf iscated a cell

1 T o p ro tect th e id en tity o f th e v ictim , w e w ill ref

er to h er b y

a f ictitio u s n am e. 2p h o n e l y ing next to Key es o n the couch. Although Key es denied it was his phone, it w a s

later c o nf irm ed that Key es bought the phone the d ay af ter Liza’s assault. Exam ination also revealed that the phone was used to search f or news regarding the attack and f or inf orm ation

on bus tickets. Police also talked w ith Key es’s sister, Debbie F aulkner, who said that on the evening o f the a ttack, her brother had lef t h er hom e at 10:30 p.m . a nd returned at 1:30 a.m . without hi s jacket. Faulkner’s hom e was o nly a c o uple of blocks f rom L iza’s house. Faulkner identif

ied the recovered jacket as Key es’s. However, when interviewed by police, Key es claim ed that he n ever lef t his sister’s apartm ent that e vening and had gone to bed by 9:00 p.m . Police took Key es into custody a n d collected DNA through a buccal swab. ¶4. On May 23, 2 016, Key es was indicted f or Count I, r obbery ; Count II, kidnapping; and Count III, f

orcible s exual intercourse, as a habitual of f ender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). The State f i led a m otion to am end the indictm ent
to charge Key es under section 99-19-83 on Novem ber 30, 2016. The trial court granted the

m otion. ¶5. A jury trial was held in H arrison County Circuit Court on February 21-23, 2017. Liza testif i ed r egarding the events that occurred during the attack as stated above. Gulf p ort Police Of f icer Jason Vincent testif

ied a b o u t h i s i nvestigation of the crim e scene. He observed jewelry o n top of the bed and a “black leather coat underneath the bed with two handkerchief

s near it.” He also observed another handkerchief tied in a knot with hair in it, and the condition of the room i ndicated “som ebo d y was r um m aging, attem

pting to locate

3item s.”

¶6. Tobie N ix, the e m ergency -room nurse who t r e a t ed Liza on the night of the attack, stated that Liz a h ad “ m

ultiple bruising to her upper body , h er wrist, her neck, f ace, som e abrasions that were current.” The witness did a c knowle dge that s o m e of the bruising reportedly occurred p rior to the attack. Dr. Kathy Keim ig, the t r e ating em ergency -room phy sician, was adm itted as an e xpert in the f ield of em ergency -room m edicine. She noted that Liza was “ very upset, tearf ul, [ and] was very anxious.” During her exam ination, Dr. Keim ig noted f

resh bruising and a

brasions around Liza’s f

ace, arm s, a nd wrists. She also testif i ed that Liza had bruising a nd abrasions around and inside her genital area and rectum , which were consistent with a sexual assault. ¶7. Bankston said that h e knew Key es and had driven him to the store or to the scrap y ard

on occasion. On cross-exam ination, counsel asked him why he th o u g h t K ey es had perpetrated th e a t t a c k o n Liza. Bankston s aid he did his own investigating w hen he heard of the assault and “did e nough searching to know that [ Key es] had done this sam e particular thing [ twenty ] y ears a go.” Def e nse counsel o bjected and m oved to strike the response. The trial judge s aid that the witness was m erely responding to the def ense ’ s q u e s t i o n; so the testim o ny was allowed. ¶8. Kathry

n Rogers, a DNA analy st with Scales Biological La b o r a t o r y , testif ied as an expert in the f

ield o f DNA a naly sis. She took sam ples f rom t h e l e ather jacket to create a

m ixture prof

ile. The D NA analy sis revealed that 99.99% o f the w orld’s population could be

4excluded f

rom the m ixture prof

i le, but Key es could not. Additionally , Rogers conducted Ychrom osom e testing of the han d k e r c hief

. W h ile 99.93% of the m ale population could be excluded, Key es could not. ¶9. The State r ested, a nd the def ense m oved f

or a directed verdict, which the trial judge denied. K ey es testif

ied, claim ing that on the day of the assault , h e h a d been watching f ootball a l l d ay . He a dm itted that he lef t hom e about 10:15 p. m . but claim ed he went to a trailer park a f

ew blocks away and drank with som e a cqu a i ntances around a “pit.” Key es said he took of

f his jacke t and accidentally lef t it o n a chair. W hen he got to his sister’s apartm ent, he realized he l ef t the jacket a nd went back, b u t n o o n e was there. H e denied telling police he had been hom e all evening. ¶10. The jury f

ound Key es guilty on all three counts, and the trial judge sentenced him a s

a h abitual of

f ender u nder section 99-19-83 to lif e without eligibility f

or parole in the custody of the MDOC f

or each count, with the sentences to run consecutively

. Key es f iled a m otion f or a new trial, which the trial court denied. ¶11. On appeal, appointed appellate counsel f o r Key es a rgues that the trial court erred in deny ing his m o tion f

o r a new trial as the verdict is a gainst the overwhelm i ng w eight of the evidence. Counsel also argues that Bankston’s ref erence to Key es’s prior convictions during

cross-exam ination w arranted a m istrial, or at the v ery least, an adm onishm ent to the jury by the trial judge to disregard the statem e nt. Not wholly s atis f i e d w i th the issues of error brought by appellate c ounsel, Key es requested to f ile a supplem ental p ro se brief , which this

5Court g ranted. I n his supplem ental brief , Key e s additionally asserts: (1) that he should not have been sentenced u n der section 99-19-83 because the State f ailed t o d em onstrate that he had two prior convictions f or which he served one y ear or m ore in custody ; ( 2 ) t hat the evidence w as insuf

f icient to s upport h is conviction f or kidnapping; and (3) that the trial court exceeded i ts authority in sentencing him to lif e without parole f

or rape. W e will address each of these assignm ents of

error in turn. DISCUSSION I. W h e t h er the verdict w as against the overw helm ing w eight o f t h e evidence. ¶12. Key es argues that his c onvictions were based on s cant circum stantial evidence, noting the only evidence connecting him to the c rim e was the jacket, which he claim s he lost that night. T heref

ore, h e contends that the verdict was against the weight of the evidence. W hen reviewing a challenge to the w eight of the evidence, we consider “the evidence in the light

m ost f a vorable to the verdict,” and we will not r everse unless the “verdict

. . . is so contrary
to the o verwhelm ing weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Little v. State , 233 So. 3 d 288, 292 (¶21) (Miss. 2017). “[ W ]hen the evidence is c onf

licting, the jury will b e the sole judge of the credibility of w itnesses and the weight and w orth of their testim ony .” Id

. at (¶20) (quoting Gathright v. State , 380 So. 2d 1276, 1278 (Miss. 1980)). ¶13. W e f

ind there was a m

ple evidence in f

avor o f Key es’s guilt. Key e s’s sister testif ied that he lef t her house w earing his leather jacket around the tim e of the attack, and h e returned
6a f

ew hours l a t e r w i thout it. She identif ied the jacket recovered f r om L iza’s hom e as Key es’s, and he acknowledged that the j acket f ound at the scene was his. He m a t ched Liza’s phy sical description of the assailant. A f orensic exam ination of Key es’s c e ll phone showed that it was purchased the day af t er the c rim e and that he had accessed several news stories about the attack and searched f or bus tickets out of town. D NA evidence was recovered f rom the jacket and handkerchief s and com pared to K ey es’s DNA s am p le. W hile over ninety -nine percent of the world’s p o p u l a t i o n c o u ld be excluded, K ey es could not be ruled out as the

source of the DNA r ecovered f r om the scene. V iewing the e v idence in the l ight m ost f avorable to the verdict, we do not f ind that allowing the verdict to stand would s a nction an unconscionable injustice. II. Whether Bankston’s rem arks about Key es’s prior convictions w arranted a m istrial. ¶14. Key es f

iled a m otion in lim ine under Mississippi Rules of Evidence 404 and 609 to prohibit a n y ref

e rence by the State regarding his prior convictions. The State indicated that it had no intention of discussing the prior convictions “unless f or som e reason the [ d]ef

ense opens the door.” During the def e n s e ’ s c r oss-exam ination of B ankston, the f ollowing exchange took place: [ Def ense]. Okay

. You said that y ou d id y our o w n i n v e s t igating af ter y ou saw the news report? [ W itness]. Right. [ Def ense]. W hat kind of

investigating did y ou do?

7[ W itness]. W ell, I did enough searching to know that [ K e y e s] had d[ one] this sam e particular thing 20 y ears ago. [ Def ense]. O b

j e c t i o n , Your H onor. I m ove to s t r i k e t h i s w i t n e s s ’ [ s ] response to that question based on our m otions. [ W itness]. W ell, y ou’re asking m e those questions. [ The Court]. You asked him the question. He’s explaining it. [ W itness]. I’m

just telling y ou the truth. [ The Court]. He’s giving y ou an answer. Key es claim s that Bankst o n ’ s com m ent that Key es had done the “ sam e particular thing [ twenty ] y ears ago” was prejudicial and warranted a m istrial. ¶15. However, a s the trial court noted, Ban k s t o n ’ s t e s t i m o ny w as in direct response to a question asked during def ense counsel’s cross-exam ination. “Generally , a n appellant cannot

com plain of dam aging testim ony if the testim ony i s in response t o his questions.” Saunders

v. State , 64 So. 3d 535, 536 ( ¶9) (Miss. Ct. A pp. 2011) ( quoting Triggs v . State , 803 So. 2d 1229, 1234 ( ¶14) (Miss. Ct. App. 2002)). “ [ A] def endant cannot com

plain of evidence that he him s elf introduces by virtue o f his own questions.” Lane v . State , 841 So. 2d 1163, 1169 (¶19) (Miss. Ct. App. 2003) (citing Hobson v. State , 730 So. 2d 20, 2 4

- 2 5 ( ¶ 1 5 ) ( Miss. 1998)). “ Objectionable statem ents are not error if they are the product of

direct and crossexam inations by the def

e n se counsel.” Id

. (citing Fleming v. State , 6 04 So. 2d 280, 289 (Miss. 1992)). A ccordingly , we f ind no error in the t r i a l court’s decision not to strike the testim o ny .

8¶16. Key es also argues that the t r i a l court erred in not a d m onishing the jury to disregard

Bankston’s statem ent. However, def ense counse l n e v er requested that the trial judge give such a n a dm onition, and the trial court was under no o bligation to issue a lim iting i nstruction

sua sponte. In Moss v . State , 9 7 7 S o. 2d 1201, 1212 (¶22) (Miss. Ct. App. 2007), the def en d a n t , R o bert Moss, o pened the door to his prior convictions on cross-exam ination. Because the def

ense f ailed t o request a lim iting i nstruction, this Court held that he w as barred f rom bringing the issue on appeal. Id

. at ( ¶25). More o v e r , “ [ t ]he trial judge was not obligated to provide a lim iting i nstruction sua sponte regarding the adm ission of [ the def endant’s] prior convictions.” Id . W e f i nd no m erit to Key es’s claim

. III. Whether Key es’s prior convictions s upported his classification as a habitual offender under section 99-19-83. ¶17. Key es contends he was erroneously sentenced to lif e under section 99-19-83, as his indictm ent—which listed his two prior convictions to s u pport his habitual o f

f ender status under section 99-19-83—f ailed to state that he served one y ear or m ore in MDOC custody

. He claim s that no “legal docum entation” was provided as to whether he served one y ear or

m ore in custody

. ¶18. The record d oes not support Key es’s claim

. At the February 1 6, 2017 hearing on the

m otion t o am end the indictm ent, the State subm itted supporting docum entation (a “pen p a c k ” ) t hat included an A pril 13, 1988 order by the H arrison County C i rcuit Court st a t i n g that Key es had pleaded guilty t o m a n s l a u ghter a nd aggravated assault and had b een sentenced
to serve twenty y ears i n the custody of the M D O C f o r each conviction, with the sentences 9to run concurrently

. Also c ontained in the pen pack was Key es’s MDOC discharge

certif i cate that stated he was released on parole on Novem ber 26, 1996, evidencing that he served one y ear or m ore in custody

. T here was no objection to the State’s m otion to am end the indictm ent. The pen pack was again subm itted during Key es’s sentencing hearing. ¶19. Key es f

urther c ontends that he s hould have b een sentenced in a bif u rcated trial. Key es cites no authority f

o r his argum ent; so his claim is barred. M.R.A.P. 28(a)(7). Regardless,

we f ind n o error. As this Court h a s h e l d : “ W hat is intended by the bif urcated-trial requirem ent is ‘to ensure that a j ury , bef ore deciding a def

endant’s guilt or innocence, is not inf orm ed of the def

en d a n t ’ s p r i o r crim inal record s o as not to be im properly inf

l uenced in its verdict.’” Brown v. State , 232 So. 3d 804, 811-12 (¶26) (Miss. Ct. App. 2017) (quoting Small v. S tate , 141 So. 3d 61, 6 6-67 (¶17) ( Miss. C t. App. 2014)). The jury was not present during the trial c ourt’s hearing on the m otion to am e nd the indictm ent, and the trial judge waited until af

ter the j ury had returned its v erdicts bef ore addressing K ey es’s sentencing as a habitual of

f e nder. W e f

ind this suf

f icient to m eet the bif

urcated-trial requirem ent. IV. Whether the evidence w as sufficient t o support the kidnapping conviction. ¶20. Key es argues that evid e n c e w as not suf f icient to s upport his conviction f or kidnapping

as “th e e v idence [ introduced] by the [ S]tate on the kidnapping charge was relevant to the charge of rape.” W h en reviewing a challenge to the suf f iciency o f the evidence, the relevant question is whether, a f

ter viewing the evidence in the light m ost f avorable to the prosecution, “any rational trier of f

act could h ave f

ound the essential ele me n t s o f the crim e bey ond a 1 0reasonable doubt.” Bush v. State , 895 S o. 2d 836, 843 (¶16) (Miss. 2005), abrogated on other

grounds by Little , 233 So. 3d at 291-92 (¶¶16-21). ¶21. The jury was instructed that in order to f ind Key e s guilty of kidnapping, the jury had
to f ind bey ond a reasonable doubt that he “f eloniously , willf

u lly and without lawf

ul authority f orcibly seize[ d] and conf

ine[ d] [ Liza], [ w]ith or w i thout intent to cause [ her] to be secretly conf ined o r im

prisoned.” Key es a r g u e s L i z a w as not f orced to leave her property and she was not “secretly

conf ined”; thus, the evidence does not support the kidnapping charge. ¶22. W e f

ind no m erit to this claim

. Liza testif ied that her attacker, Key es, grabbed her and f orced her back into her house. He then bound her hands with handkerchief s and f orced her
to lie down on the b ed. In Haymond v. S t a t e , 4 7 8 S o . 2d 297, 299 (Miss. 1985), the Mississippi Suprem e Court f ound that e v i d e n c e s howing a def endant t ook control of the victim ’s car by grabbing the steering wheel and “f orcibly back[ ing] it o f

f the r oad” was suf f i cient to support the def

endant’s kidnapping conviction. “[ T ]he victim literally becam e

a p risoner in his own veh icle.

. . . At this point, the victim was f orcibly detained, secretly conf ined[ ,] and im

prisoned against his w ill.” I d

. W e f ind Liza’s testim ony constituted suf f i cient evidence to support K ey es’s conviction f or kidnapping because she w as a prisoner in her own hom e. V. Whether the t rial court ex ceeded its authority in sentencing Key es to life w ithout parole for rape. ¶23. Key es argues that the trial court abused its d iscretion in sentencing him to lif e without parole f o r the r a p e conviction, absent a r e c om m endation b y the jury

. M ississippi Code
1 1Annotated section 97-3-65(4)(a) (Rev. 2014) provides:

Every p erson w ho shall have f orcible sexual intercourse wit h any p erson, or who s hall have sexual intercourse not c onstituting f orcible sexual intercourse or statut o r y r a pe w ith any person without that p erson’s consent

. . . shall be im p r i s o n e d f

o r lif e . . . i f the j ury by its verdict so prescribes; and i n cases where the jury

f ails to f ix the penalty at lif

e im prisonm ent, the court shall f ix the penalty at im

prisonm e nt

. . . f

or a ny t erm as the court, i n its discretion, m ay determ ine. The suprem e c ourt expressly rejected the concept that only a jury can sentence som eone convicted of rape to lif

e w ithout parole in Bester v. State , 1 88 So. 3d 526, 529 (¶10) (Miss. 2016), stating that “the plain language of Section 97-3-65(4)(a)” authorizes the trial court to
sentence a def

endant convicted o f rape to any term of im prisonm ent, i ncluding lif e. Furtherm o re, Key es’s prior convictions support h i s h abitual-of f ender classif

ication under

s ection 9 9-19-83, leaving the trial court with no discretion to sentence Key es to a n y t e r m except lif e f or his convictions. Theref ore, this issue is without m erit. ¶24. Accordingly , we af f irm the trial court’s judgm ent. ¶25. AFFIRMED. LEE, C.J., IRVING AND GRIFFIS, P.JJ., C A R LTON, F AIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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