IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-KA-00071-COA RICKARIUS KIMBLE A/K/A RICHARIUS KIMBLE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 01/17/2017 TRIAL JUDGE: HON. LINDA F. COLEMAN COURT FROM W HICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: BRENDA FAY MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 09/18/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ. GREENLEE, J., FOR THE COURT: ¶1. A Bolivar County jury f ound Rickarius Kim

b le guilty of rape. Kim

ble was sentenced

to serve f if teen y ears in the custody of the M ississippi Departm ent o f Corrections (MDOC), with f i v e y e a rs suspended a nd f ive y e a rs of supervised probation. Kim ble appeals, challenging the suf

f iciency and weight of the evidence and asserting that h e r e ceived inef f ective assistance of

counsel. W e af

f irm Kim ble’s conviction and sentence. PROCEDURAL BACKGROUND ¶2. On August 29, 2016, a Bolivar County grand j ury i ndicted Kim b l e f o r Count One,burglary , in violation o f Mississippi Code A nnotated s ection 97-17-23 (Rev. 2 014), and

Count Two, f

o rcible sexual intercourse in violation of Mississippi Code A nnotated section 97-3-65(4)(a) (Rev. 2014). Trial com m e nced on October 10, 2016. A f ter the State’s case-inchief , Kim ble m oved f

or a directed verdict, which the t rial court d enied. A t the close of all evidence, Kim

b le’s counsel renewed his m otion a nd requested a p e r em ptory i nstruction directing a verdict f

or t he def endant f or both burglary and rape. T he trial court d enied the instruction as to both counts. Following trial, the jury f o und Kim ble not guilty of burglary , but guilty of rape. On appeal, Kim ble argues that the jury ’ s verdict as to rape was contrary to the suf f iciency and weight of

the evidence. FACTS ¶3. In Septem

b er 2015, Lakeisha Adam s was l iving in a trai l e r i n B e n o i t , Mississippi, with her s o n and her boy f

riend, Jerem y Franklin. On t he night of Septem ber 4, Franklin was working out of town, and Ad a ms r e t u r n e d hom e with h er son at approxim ately 10 p .m . W h en Adam s arrived a t h er f ront door, she f

ound herse l f l o c k e d o ut; her o nly key went to the doorknob, and s om eone had locked the deadbolt. Suspecting a break-in, Adam s called the police and her s tepf

ather, Sidney Tay lor. Tay lor arrived f irst a n d walked around the trailer, f inding Adam s’s back d o o r unlocked and slightly open. W hen the police arrived, Adam s reported the break-in. ¶4. Bef

ore she went to bed that night, Adam s m ade sure that all of the doors were locked. She a lso placed a pair of

scissors in her son’s bedroom window and a chair under the f ront doorknob to prevent any one f rom e n t e r i ng the trailer. Adam s testif ied that af

ter she f ell

2asleep, she h eard a noise, jum ped out of bed, and grabbed the loaded gu n s h e k e p t i n h er bedroom . Bef

ore she was able to look f or a possible intruder, Kim ble attacked her. ¶5. Adam s said that Kim ble tackled her, grabbed her arm , t ook her gun away f rom her, and knocked her through the television stand in her bedroom

. Then, he grabbed h er around the t hroat and dragged her to the livin g r o o m . Adam s t estif ied that in the living room , Kim ble pointed out that he was wearing all black clothes and blue hospital gloves. Kim ble stated, “ B****, I cam e here to do this,” and he told Adam s to take her underwear of f

. Adam s testif i ed t hat s h e w as only wearing a shirt and underwear at the tim e and that she eventually pulled her underwear down a f ter Kim ble grabbed her by the hair and pushed her f ace down on the living-room couch. Adam s f urther t estif

ied that she tried to stall f or tim e by

asking Kim ble whether he had a condom

. Kim ble produced a condom a n d m a de h er put it on him

. Then, Kim

ble m a de her lean over the cou c h , and h e put his p enis inside her vagina and allegedly raped h er. Adam s testif ied that as Kim

ble was raping h er, t he c ondom c am e of f and Kim ble had her put it back on. Kim ble resum ed the a lleged assault, but h i s p e n is kept slipping o ut, so he m ade A dam s lie on her back and f orcibly perf

orm ed oral sex on her. He then m a de her f

ace the couch but realized the c ondom had broken. Adam s said Kimb l e laughed and opened som e paper towels and tissues, w hich he used to wipe him self with. He then handed Adam s a paper towel, which she wiped herself with. ¶6. Adam s said that af t e r K i mb l e r aped her, he sat on her f u rniture and told h er, “[ N]o f ace, no case, but y ou saw m y f ace, so I [ have] to kill y ou.” He said “[ I]t’s either m e or . . . y ou” and “I ain’t going to jail.” Kim ble a sked Adam s to give h im bullets, and when Adam s

3r e s p o n d e d t hat she did not have any , Kim ble said “B , if I go in here and there’s n o bullets in the drawer, I’m gonna kill y ou.” A dam s s aid Kim ble never c hecked the drawer f or bullets. ¶7. K i mb l e s u p p o s e d ly told Adam s that a person called “ G i ngerbread” said a p e r s o n called Franklin owed a person called “Sam bo” m oney , and K im

ble had been sent to kill her. Adam s testif

ied that s he knew a “Gingerbread” but not a “Sam bo.” Adam s said she of

f ered Kim ble m oney , but he s tated, “I don’t want y our m oney ”; “ I supposed to did this s** ** and been gone.” Kim

ble then took Adam s’s phone and called som eon e . H e t o l d Adam s the
person he spoke with “told him to leave and c o m e b ack the next day and burn [ t hem ] up.” Adam s asked Kim

b le if he was g oing to com e back, but he said, “No.” Adam s said Kim ble touched a can of

roach spray

bef ore he lef t. ¶8. Adam s testif

ied that af ter Kim ble lef t, she got her child, looked f or her key s, went to her m other and stepf

ather’s apartm ent, and called T ay lor t o open the door. Adam s stated that during the assault, her son was in her bedroom s cream ing b ut never cam e out o f the bedroom

. Adam s said that when she drove to her m other and stepf ather’s apartm ent, she took her gun

w i th h er. She s aid that she f ound her gun o n her living-room f loor. 1 Tay lor testi f

i e d t h a t Adam s a rrived at his house a little af ter 6 a.m . , and was “ c r y i n g , h o o p ing and hollering, [ with] hair all over her head.” Tay lor called the police. ¶9. Deputies Johnathan Trotter, Michael Honorable, and Youlande r H a r r i s , w i t h t h e

1 A d am s testif

ied th a t sh e d id n o t s ee th e g u n o n th e liv i n g -ro o m f lo o r u n til af

ter K i m b le lef t. S h e said th at t h e last tim e sh e saw it w as w h en K im b le d rag g ed h er to th e co u ch

. 4Bolivar County Sherif f ’s Departm ent, r espon d e d to the call. Deputy Trotter testif ied that when h e arrived at Tay lor’s residence, Adam s was giving a statem e nt to Deputy Harris. He observed that Adam s was “real shaky ” and was c r y ing. Adam s told the of

f icers that she had been assaulted at h er h o m e. Deputy Trotter then called Investigator Michael W illiam s, who instructed Deputy Trotter to gather Adam s’s c lothes f rom her hom e and ensure that Adam s visited the hospital to have a sexual assault exam

. ¶10. Deputy Trotter testif ied that he a nd th e o t h e r d e p u t i e s a c c o m panied Adam s to her trailer. H e said they walked through the trailer, l o o k i n g to see where Kim ble entered. Deputy Trotter said he observed that in one of the bedroom s, the blinds had been rem oved, and a pair of scissors were ly ing under the window behind a dresser. Trotter said t hat below the window outside, he saw a child’s toy car that had a dusty f

ootprint on it. Trotter stated that it l ooked like som ebody had used it “to m ay be

. . . g et up, inside of t he house.” Deputy Trotter acknowledged that although the window’s blinds were dam aged, neither the window itself nor the f

ram e was dam aged. ¶11. Investigator W illiam s testif ied that he l ikewise r eported to Adam s’s hom e to secure the scene, take photographs, and collect evidence. Investigator W ill i a ms said that he photographed and s ecured s e veral item s Kim ble m ay have touched, including a paper towel,

a p air o f g loves, a condom , a can of insect spray , a n d a role o f duct tape. The pictures were adm itted into evidence. Investigator W illiam s f urther testif

ied that he also collected a loaded
g u n . H e did not testif

y as t o where, how or f

r om whom he obtained the gun. I t t o o w a s adm itted into evidence.

5¶12. Deputy Harris took Adam s to the B olivar County M edical Center, where Nurse Lee

Levingston was working. Levingston testif ied that Adam s told her she had been assaulted, choked, and raped, so Levingston conducted a sexual assault e xam t o collect any e vidence. Levingston f

irst c om pleted a phy sical exam ination of Ad a ms , which did not reveal any redness, bruising, scrapes, abrasions, c u t s , or l acerations on Adam s’s body

. L e vingston stated that in m any instances bruises m ay not appear until the day af ter an injury occurs. As
p a r t of the sexual assault exam , swabs w ere taken f rom Adam s’s labia and vagina. W hen Adam s arrived h om e f

r om the hospital, she noticed that she had carpet b urns on her knee, a
cut on h e r f

inger, and bruises on her lower back and b uttocks. Adam s had her b oy f riend, Franklin take pictures of

these injuries, and the pictures were adm itted into evidence. ¶13. Meanwhile, police began s e a r c h i n g f or Kim ble. N ear t he end of h is shif t, Deputy Trotter r eceived a dispatch call i nf orm ing him that Adam s’s f am ily m em

bers ha d located
K i m ble and “were chasing him through the town.” Roughly an hour later, Dep u t y T r o t t e r apprehended Kim

ble. ¶14. W h ile i n c u s t o d y , K i m ble gave a statem ent to police in which he initially denied knowing Adam s and going to her trailer. Later in his statem ent, Kim ble told the police that Adam s gave him her trailer key s . Kim ble stated that he went to Adam s’s t railer, the door was unlocked, and Adam s let him i n. W hen the police suggested that Kim ble’s “ DNA m ay have been lef t b ehind” in t he trailer, Kim ble said that h e and Ada ms h a d a s e c r et r elationship. Kim ble also described Adam s’s gun in detail. ¶15. Kim

ble g ave his written c o n s e n t to provide DNA sam ples t o i nvestigators with the

6Bolivar C ounty Sherif f ’s Departm ent, and his signed consent f orm w as adm itted into evidence. His DNA sam

ple, along with the swabs f rom Adam s’s sexual a ssault exam , was given to the Mississippi Crim e Lab to perf orm D NA analy sis. A f

orensic D N A a n a l y st testif i ed t hat h e perf

or m e d t ests on the swabs and c ould not exclude Kim ble as a possible contributor to the m ale DNA f ound on Adam s’s vaginal swabs. The analy s t f urther testif

ied that the odds that the DNA was not Kim ble’s were approxim ately one in ten billion. ¶16. Kim

ble called Police Chief Billie W illiam s of the Benoit P olice Departm ent, and his f ather, Richard Lawrence in his d ef ense. C hief W illiam s testif ied that af t er the alleged rape, he purchased A dam s’s trailer f rom her parents. Chief W illiam s said t hat af ter purchasing the trailer, he changed the doorknob lock and the deadbolt l ock o n the f ront door. He said that h e h a d never opened or t ried t o unlock the back door. Chief W illiam s testif ied tha t a f

e w day s b e f ore trial, Kim

ble’s f ather, Lawrence, contacted h im and asked f or perm ission to test

a k ey on the trailer’s back door. Chief W illiam s told Lawrence he would h ave to obtain the present occupant’s perm ission. ¶17. Lawrence t estif

ied that three day s af

t er Kim ble’s arrest, Kim

ble called him

and asked him to look f

o r a s e t o f k e y s . Lawrence f ound the key s in a pair o f Kim ble’s pants at his house. A week bef

ore trial, Lawrence went to Adam s’s old trailer a nd tried to use the key s

on the b ack door. Lawrence testif ied that one of the key s f

it i nside the back deadbolt lock, but it would not turn. He used a key on the lower doorknob lock; i t went inside, and the knob turned. Lawrence explained that h e turned t he knob a bit, but h e did not open t he door or go inside the trailer b ecause s om eone currently l ived there. Lawrence testif ied that it was his

7opinion that he c ould have opened the door, a l t h o u g h h e w a s not certain. He said that the

door was se e mingly jam m ed because the door or lock w as bent, but the k ey did allow h im to turn the knob when he inserted it. ¶18. K i mb l e testif

ied on his own behalf

. Kim ble testif ied that he saw Adam s t w i c e o n Septem ber 4, 2015: once at a l ocal Quick Mart and once at t he library . He testif ied that he

saw Adam s at the Q uick Mart aroun d 1 1 a.m ., had a f riendly conversation with her, and invited her to a f

ootball gam e that night. Kim b le said that Adam s told him she was already going to the ga me with s om e f riends. Kim

ble testif ied that he saw Adam s in f ront of the library at a

bout 4 p.m ., and they spoke again. Kim ble f urther testif

i ed that Adam s told h im that she would be hom e af ter t he f ootbal l g a me . H e said Adam s gave him t he key s to her trailer and t old him t hey would unlock her b a c k d o o r . Kim ble said he had m e t Adam s through her boy f

riend, Franklin, whom

he had visited at Adam s’s trailer. Kim b le testif ied that he knew Franklin was out of town that evening. ¶19. K i m

ble testif i ed that he went to Adam s’s trailer while Adam s w a s at the f o o t b a l l
gam e, and he tried t o use t he key s to see if they worked. He went to a c lub u ntil it closed at about 2:00 a.m . and then walked to Adam s’s trailer. Kim ble said that h e u s e d t h e k ey s Adam s gave him to enter t he back door around 2:30 a.m . 2 H e said th a t A d am s got out of bed; they talked in the living room ; and they ha d c o n s e n s u a l s e x. H e said that he used a condom that Adam s gave him , claim ing that it was Adam s’s idea. He also testif ied that the condom broke during s ex. Kim ble said that af

ter they had sex, he u sed Adam s’ s p h o n e to

2 In h is p o lice statem en t, K im b le claim ed t h at A d am s let h im in , an d h e d id n o t n eed to u se th e k ey s sh e g a v e h im

. 8call another girl—one of Adam s’s f

riends—and Adam s got m ad and snatched her phone. ¶20. Kim

ble initially testif

ied that he did not know whether Adam s owned a gun, and he denied telling of

f icers that she did. Later in his testim ony , K im ble said that when he was at Adam s ’s trailer, she showed h i m a g u n f or som e unknown reason. Kim b le testif ied that Adam s ’s son was in her bedroom and that the television set in the bedroom f e ll while he and Adam s were in the living room having sex. K i m b l e acknowledged that he touched the condom wrapper, a glove, and a can of insect spray in t he trailer. He testif ied that he did not touch the d

uct tape. Kim

ble denied telling Adam s to wipe herself of f af ter they had sex, and he t e s t i f i ed that he did not see her wipe herself of f

. Kim ble explained that his stepf ather, who is also Adam s’s c ousin, uses the nam e “Gingerbread.” Kim ble said he did not know a person called “Sam

b o.” Kim ble also explained that he initially denied knowing Adam s and going to her trailer because h e f eared that if he told the police that h e a n d Adam s had sex, the police would believe it was rape, as Adam s alleged. ¶21. Adam s denied seeing Kim b le or speaking with him earlier i n the day , a n d she denied giving Kim

ble the key s to her trailer. She also denied that the sex was consensual. Adam s testif i ed that she only

knew of Kim ble because they

lived in the sam e town. ¶22. Foll o w i n g deliberations, the jury f ound Kim

ble not guilty of burglary but guilty of rape. Kim

ble has tim ely

appealed. ANALYSIS I. Sufficiency and Weight of the Evidence ¶23. On appeal, Kim

ble challenges t he suf

f i ciency and weight of the evidence concerning

9his rape conviction. A. Sufficiency ¶24. Following the close of the State’s case, Kim ble m oved f

or a d irected verdict on both burglary and rape. Af

ter the close of all evidence, Kim ble renewed h is m otion and requested

a perem p tory instruction di r e c t i n g the jury to f i nd f or him on both c harges, which the trial

court denied. On appeal, K im ble claim s the evidence w as i nsuf f icient to support his rape conviction, arguing that “Adam s ’ testim ony w as i m probable, unreasonable[ ,] and contradictory .” ¶25. “The standard of review f or a denial of a directed verdict, perem ptory instruction, and

a J NOV are identical.” Vaughn v. State , 926 So. 2d 269, 2 71 (¶4) (Miss. Ct. A p p. 2006)

. “A m o tion f

o r a directed v erdict and request f or a p erem

ptory instruction c h allenge the legal suf f i ciency of the evidence.” Id. (citing McClain v. State , 625 So. 2d 774, 778 (Miss.1993)). On appeal, we review the trial court’s f inding regarding t he s u f

f iciency of the evidence at the tim e t he m otion f

or a directed verdict or request f or a perem

p tory instruction is denied. Id. “[ T]he relevant question is whether, af ter viewing the evidence in the light m ost f avorable

to the prosecution, any rati o n a l t r i er of f act could have f

ound t he e ssential elem ents of the crim e bey ond a reasonable doubt.” Bush v. State , 895 So. 2d 836, 843 (¶16) (Miss. 2005), overruled on other grounds by Little v
. State , 233 S o. 3 d 288 (Miss. 2017). The issue is not whether we would have f ound Kim

b le guilty base d o n t h e evidence at trial; r ather, his conviction m

u st be af f irm e d if there was enough evidence f or “any rational trier of f

act” to have returned a guilty

verdict. Id.

1 0¶26. The State h ad to prove t h a t K i mb l e h a d f orcible s exual intercourse with Adam s to convict him of rape under Mississippi Code Annotated s ection 97-3-65(4)(a) (Rev. 2 0 14). Kim ble argues no juror could have f ound him guilty b e y o n d a reasonable d oubt because Adam s ’s t e s t i mony was exceedingly “im probable, unreasonable[ ,] and contradictory .” In
suppo r t o f t h is argum ent, Kim ble ref erences a num

ber of alleged inconsistencies in the record. ¶27. It is well settled that “the jury is the f inal a rbiter of

a witness’s credibility .” Collins

v. State , 97 So. 3d 1247, 1251 ( ¶14) (Miss. Ct. App. 2012) (quoting Morgan v. State , 681 So. 2d 82, 93 (Miss. 1996)). Further, “[ o]ur sy stem o f justice allows t he jury to m ake logical and reasonable inf

erences and presum

ptions.” E

dwards v
. State , 167 So. 3d 1286, 1289 (¶22) (Miss. Ct. App. 2014). “From these reasonable inf erences, even if

jurors could have com e
to dif f erent conclusions o n each elem ent of the crim e, the e vidence rem ains suf f icient.” Id. at 1289-90 (¶22). ¶28. W e do not f

i nd that the inconsistencies Kim ble alleges m erit reversal. Viewing the evidence in the light m ost f avorable to the S tate and giving the State the benef it of all reasonable i nf

erences, the jury could have f ound Kim ble g uilty of rape bey ond a r easonable doubt. Thus, we f

ind the evidence was suf

f icient to support the jury ’s verdict.
B. W eight ¶29. In r eviewing the weight of the evidence in f avor of the verdict, “we will only disturb

a verdict when it i s so contrary to the overwhelm ing weight of the e vidence that to allow it to stand would sanction an unconscionable injustice.” Swanagan v. State , 229 So. 3d 698,

1 1705 (¶26) (Miss. 2017). K im ble again claim s that Adam s’s t e s t i mo n y was im probable, unreasonable, and contradictory

. He argues the evidence is m ore consistent with his theory that Adam s had consensual sex b ut claim ed rape to avoid b eing e xposed f or cheating on her boy f riend. Because K im

ble d id not f

ile a m o tion f

o r a new t rial, he is p rocedurally barred f rom challenging t he weight of the evidence on a ppeal. See Price v. State , 7 49 So. 2d 1188, 1199 (¶38) (Miss. Ct. App. 1999) ( “The m atter o f evidentiary weight is waived by the f ailure

to m ove f o r a new trial.”). ¶30. Nevertheless, we will consider this issue. Having taken the opportunity to review the evidence, we f

i nd that the j ury ’s verdict is n o t a g a i n s t the overwhelm i ng w eight of the evidence. W e r eiterate that the jury sits as a t rier of f a c t a n d i s charged with resolving conf licts in evidence. Price v. State , 8 47 So. 2d 290, 294 (¶18) (Miss. Ct. Ap p . 2003). Kim ble’s theory w as subm i tted t o t he jury at trial, and t he j ury had the opportunity to consider any inconsistencies in the evidence. W e f ind t h a t a l l owing the jury ’s verdict to stand would not sanction an unconscionable injustice. This issue is without m e r it.
II. Ineffective Assistance of Counsel ¶31. Kim

ble alternatively com

plains that his trial counsel provided inef f ective assistance by f ailing to f ile a m otion f

o r a new trial, thereby procedurally barring him f rom challenging the weight of the State’s evidence. ¶32. As a prelim inary m atter, Kim ble f ailed to f ollow Mississipp i R u l e o f A p p e l l a t e Procedure 28(a)(3), w hich requires that each issue b e separately num bered in a statem ent of the issues. M.R.A.P. 28(a)(3); see also Leake v. Leake , 196 So. 3d 1115, 1117 (¶6) (Miss.

1 2Ct. App. 2016). “Failure to present an iss u e i n t h i s f a s hion bars the issue f

or appellate review.” Id. Nevertheless, we will consider Kim ble’s claim

. ¶33. To establish inef

f ective a ssistance of c ounsel, Kim ble m ust prove: (1) his attorney ’s perf orm ance was def

icient, and ( 2) the def

iciency was prejudicial. S trickland v. W

ashington , 466 U .S. 668, 687-96 (1984). “To determ ine whether the counsel’s perf orm ance was both def icie n t a n d p rejudicial, this Court exam ines the totality of the c i rcum stances, keeping in

m ind that a strong but rebuttable presum ption e xists that a counsel’s c onduct f a lls within the wide range of reasonable prof ession a l a s s istance.” W

i lliams v. State , 228 So. 3d 949, 952 (¶13) (Miss. Ct. App. 2017) (internal quotation m ark om itted). Accordingly , we will f ind the counsel’s perf

o r m ance def

i cient only where there is a reasonable p robability t hat, but f or the counsel’s errors, t he outcom e would have been d if f erent. Holland v
. State , 656 So. 2d 1192, 1197 (Miss. 1995). ¶34. W e will address an i nef f e ctive-assistance-of

-counsel c l a i m o n d i r e c t a p p e a l only where “(1) the record a f

f irm atively shows inef

f ectiveness of constitutional dim ensions, or (2) t he parties stipulate that the record is adequate to allow the appellate court to m ake the f inding w ithout consideration of the f indings of f

act of the trial judge.” W

y nn v. State , 964 So. 2d 1 1 96, 1200 (¶9) ( Miss. Ct. App. 2007) (quoting W ilcher v. State , 863 So. 2d 776, 825 (¶171) (Miss. 2003)). If

the record is inadequate to address the claim o n direct appeal, we

w i l l d i s m iss the claim without p rejudice, preserving Kim ble’s right to raise his claim i n a properly f iled m o t ion f

o r post-conviction relief

. Sandlin v
. S

tate , 156 So. 3d 813, 819 (¶20) (Miss. 2013).

1 3¶35. Here, the record is ade q u a t e f o r r e v i e w b e c ause Kim

ble’s argum e nt that his trial counsel provided i nef

f e ctive assistance by f

ailing t o f ile a m o tion f

or a new trial depends on the record and w e ight of the e vidence at t rial. Kim ble’s argum ent is b ased on f acts f ully apparent f

rom the appellate record, theref ore we proceed to review it. ¶36. The M i s s i s s ippi S uprem e Court has f ound that a def

ense attorney ’s f

a ilure to f ile a post-trial m otion challenging the weight of the evidence constituted def i cient perf

orm ance. Parker v
. State , 3 0 So. 3d 1222, 1235 ( ¶48) (Miss. 2010). In Parker , 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
argum ent but r endered d ef icient perf orm ance b y f

ailing to f il e a p ost-trial m otion challenging the weight of

the evidence. See id. Because the verdict w as not against the overwhelm ing weight of the evidence, the C ourt held th a t P a rker was not p rejudiced by the error. Id. at (¶49). R ecently , i n Pace v. State , 2 42 So. 3d 107, 118 (¶31) (Miss. 2018), the s uprem e court f ound that counsel rendered def i cient p erf

orm ance by f

ailing t o f ile post-trial JNOV and new trial m otions, but t he def

iciency had not prejudiced Pace because the s uf f iciency a nd weight of t he evidence were such that there was no reasonable p robability that either m otion would have been granted. ¶37. As in Parker

and Pace , Kim

ble’s counsel f

ailed to f ile a post-trial m o tion attacking the weight of the evidence. Nonetheless, Kim ble h as not shown that a ny prejudice resulted because, as explained above, the jury ’s verdict was not against the overwhelm ing weight of the evidence. Thus, we f

ind Kim ble has not shown t hat trial counsel’s f ailure t o f ile a m otion f or a new trial violated his constitutional right to ef f ective assistance of

counsel.

1 4CONCLUSION

¶38. W e h old that the e v i d e n c e w a s s u f f i c i e n t t o support Kim

ble’s rape conviction. Notwithstanding t he procedural bar to Kim ble’s w eight-of

-the-evidence challenge, we f ind that the w eight of the e v i d e n c e w as suf f icient to support the j ury ’s verdict. Theref ore, Kim ble’s argum ent that his c ounsel provided inef f ective assistance b y f

ailing to challenge the weight of the evidence is without m erit. W e accordingly af f irm Kim ble’s conviction. ¶39. AFFIRMED. LEE, C .J. , IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, WESTBROOKS AND TINDELL, JJ., CONCUR.

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