IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-KA-01804-COA JERRY DARNELL A/K/A JERRY LEE DARNELL APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 11/21/2014 TRIAL JUDGE: HON. LEE J. HOW ARD COURT FROM W HICH APPEALED: LOW NDES COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: K. ELIZABETH DAVIS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH DISTRICT ATTORNEY: FORREST ALLGOOD NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF AGGRAVATED ASSAULT AND SENTEN C ED T O T W ENTY YEARS IN THE C USTODY O F THE MISSISSIPPI DEPARTMEN T OF CORRECTIONS, W ITH FIFTEEN YEARS T O SERVE AND FIVE YEARS SUSPENDED, FOLLOW ED BY FIVE YEARS OF POST-RELEASE SUPERVISION DISPOSITION: AFFIRMED – 08/30/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND GREENLEE, JJ. IRVING, P.J., FOR THE COURT: ¶1. Jerry Darnell was convicted o f the aggravated assault o f Bernard H arris. The Lowndes County Circuit Court sentenced him to twenty y e ars in the custody of the Mississippi Departm ent of Corrections with f if teen y e a rs to serve and f

ive y e ars suspended, f ollowed by f

ive y ears of post-release supervision. On appeal , D arnell claim s: (1) theevidence was insuf f icient to convict him ; (2) the jury ’s v e r d i c t i s contrary to the overwhelm ing weight of the evidence; (3) h e r eceived inef f ective assistance of counsel; and (4) his sentence is excessive. Finding no error, we af f irm

. FACTS ¶2. Bernard Harris and T e keshia Jones 1 were i n a relationship f or approxim ately a decade and had one child together, Takhia Harris. They broke up, a nd Jones began d ating Darnell. On May 13, 2012, T akhia, 2 called Harris and told him that she was hungry

. The next

m orning, Harris took som e snacks to T akhia at school and delivered som e g roceries to Jones’s apartm ent. J o n e s ’ s s o n , Travaro Jones, let Harris into the apartm ent. Harris was upset that there were only a f e w groceries in the apartm ent. Harris had Travaro call Jones, so he could talk to her about the lack of f ood in the apartm ent. ¶3. At the tim e of the call, Jones was riding i n a car with Darnell. According to Harris, he w as unaware of Jones’s relationship with D a r nell. However, during the t r i a l, Jones testif i ed that Harris did not talk to her about groceries. Rather, he lashed o ut at her because she was with Darnell. ¶4. Harris and Darnell e ventually spoke on the phone. Both D arnell and Jones testif ied that Harris threatened them and cursed at them

. Af ter learning that D arnell had been spending nights with Jones, Harris took som e things f r om the apartm ent, including wall art and a television. Bef

ore he lef t, Harris told Travaro that he would b e back later that evening

1 A t th e tim e th e in cid en t o ccu rred , Jo n es w as en g a g e d to D arn ell. T h ey later m arried

. F o r th e sak e o f

clarity , w e u se h er f

o rm er su rn am e.

2 T ak h ia w as ap p r o x im ately n i n e y ears o ld at th e tim e . 2to drop of

f Takhia. ¶5. According to Jones and Darnell, they , being co ncerned f or their saf

ety , contacted a police o f f i cer a n d i n f

o r m ed him that they had received threatening calls f rom Harris. The of f icer told them to f

ile a report. So they went to the Lowndes County S herif f ’s Departm ent, where they f

iled a report with I n v e s t i g a tor T ravis Robertson. W hen Darnell and Jones

re t u r n e d to her apartm ent, they discovered the m i ssing item s that Harris had taken. They

c a lled the sherif

f ’s departm ent, and Master Sergeant Mark McGairty responded. He took their report of the m issing item s. ¶6. Around 2:45 p .m . , Harris was riding with his girlf riend, Keny atta Stallin g s . T h e y picked up Takhia f

rom the b us stop a t t he entrance to J ones’s apartm e nt com p lex. W ith Takhia i n the car with h im , Harris was on his way to Jones’s apartm ent when he encountered
Jones and Darnell, w ho were walking in the opposite direction. Af ter Stallings stopped the

car a t Harris’s instruction, Harris and Takhia got out. The e vidence is conf licting as to what happened next. ¶7. Harris testif

ied that he tried to talk to Jones, but she pointed her f inger in his f

ace, so he knocked her hand away . In response, J o n es pushed Harris. He then slapped her in the f ace with an open hand. According to Harris, Darnell im m ediately s tarted shooting at him

. Harris s aid that the f

irst shot hit him on the lef t s ide of the back o f h is head, 3 and he f ell onto

3 D r . J a n M cC lan ah an , th e su rg eo n w h o treated H arris, later testif ied th at H arris’s h ead w o u n d w as su p e rf

i cial, in th at it d id n o d am ag e to h i s sk u ll o r b rain

. D r. M cC lan ah an reco rd ed th at th e h ead w o u n d w as su stain ed f ro m b e h i n d

. 3Stallings’s car. As he was try i ng to get into t he car, he tried to turn a round to f ind Takhia. 4 According t o Harris, Darnell appeared to be wa l king toward him while “stead[ il]y f iring.” Darnell shot Harris again. The second gunshot wound passed through H arris’ h ip and lodged in his abdom en. ¶8. Jones and Darnell p resented a di s t inctly dif f erent version of events. They said that Harris p unched Jones with a closed f ist. According t o D arnell, Harris never said any thing bef ore he “jum

p[ ed] out of t he c ar and haul[ ed] o f f and h it [ Jones] dead between t he ey es.”
D a r n e l l a d d ed t hat Harris was “ still hitting her” as she was f alling down. At trial, Jones testif i ed t hat Harris knocked her unconscious. Darnell testif ied t hat Harris k ept hitting Jones

as she w as f

alling. According to Darnell, he shot Harris in the leg, and “that got him of f ”
J o n e s . Darnell said that Harris then started m oving toward him , so he closed his e y e s a n d shot Harris again. ¶9. Stallings drove Harris t o the em ergency room , where m edical p roviders tended to his non-f atal wounds. D a r n e l l said he helped Jones to get up and that he walked her to her apartm ent. Darnell then le f t. H e was s ubsequently arrested without incident, a lthough he had changed shirts and ref used to subm it to a gunshot-residue test. Jones testif ied that she did not k n ow what had h appened during the shooting, b ut prior to t rial she g ave two
statem ents to the contrary

. That is, on the day of the shooting, she told Investigator Jam es Ferris that she h eard gunf ire. The next day , she went to the L o w n d e s C o u n ty Sherif f ’s

4 A lth o u g h Jo n es an d D arn ell later d isp u ted it, H arris testif i ed th at T ak h ia w as in th e area d u rin g th e s h o o tin g . O th er w itn esses later testif ied th at n u m ero u s o th er ch ild ren w ere n earb y . 4D epartm ent and gave another statem ent to Investigator F erris. In her second statem ent, Jones

said she saw Darnell shoot Harris as Harris was try ing to get into the car. ¶10. Darnell was indicted a nd charged with a ggravated assault. He pleaded not guilty and opted t o g o to trial. During its case-in-chief , the State called Harris, f our ey e w itnesses, and
two law-enf

orcem ent of

f icers. Brief

ly sum m arized, the State presented evidence that af ter Darnell shot Harris the f

i rst t im e , Harris f

ell onto or in the direction of Stallings’s car. And

as Harris was try ing to get into the car, Darnell continued to shoot at him

. T h e r e was also testim o ny that Jones was not knocked unconscious b y Harris. Instead, she “was crawling around on the ground . . . like she was searching f or som ething.” ¶11. D a r n e l l c a lled f

our witnesses. In general, Darnell’s theory o f the case w as th a t h e initially a c ted to d ef

end Jones and that h e s h o t Harris again in self

- def ense. Darnell and Jones testif

i ed that H arris had b een threatening them since the m orning of

the shooting, so they f i led two reports: the f

irst with Investigator Robertson a n d t h e second with Master Sergeant McGairty a f

ter they f ound things m issing f

rom the apartm ent. D arnell testif ied that
Master Sergeant McGairty told him to do “whatever h e needed to do” to protect him self and Jones; however, Master Sergeant McGairty disputed that. ¶12. During rebuttal, the State called witnesses who t estif ied that Jones did not have any

m arks or bruises on her f

ace af ter the shooting. The State also presented evidence that af ter Darnell shot H arris the f irst tim e , H a r r is “ran t owards the c ar[ ,]” and Darnell continued shooting at h i m. ” A s s tated, there was also t estim o ny that Jones was n ot knocked unconscious. Instead, s he was f ollowing Darnell’s instructions to pick u p the shell casings,

5and Darnell t o ld her not to call authorities until af ter he lef t. The S t a t e a l so called Investigator Ferris, w ho testif ied that he t ook both of Jones’s statem ents. Although Jones had testif i ed that the inf

orm ation in her statem ents was untrue, I nvestigator Ferris noted that he read each statem ent back to Jones b ef ore she signed them

. U ltim ately , the jury f ound Darnell guilty of aggravated assault. Darnell appeals. DISCUSSION
I. Sufficiency of the Evidence ¶13. Darnell c laim s that the evidence is insuf f icient to support the jury ’s verdict. However,

as d iscussed below, he is p rocedurally barred f rom r aising this issue on ap p e a l

. Af ter the State rested its case-in-chief , Darnell m o ved f

or a direct e d verdict, and the circuit court denied his m otion. Darnell then presented his own case. “W h en the def endant p roceeds with his case af

ter the state rests and t he court overrules the def endant’s mo t ion f

or a directed verdict, t he def

endant [ waives] the appeal of [ the denial of his m otion f or a] directed verdict” unless h e renews his m otion f or a d i r e c ted verdict at the conclusion o f all of t he e vidence. Holland v. State, 656 So. 2d 1192, 1197 (Miss. 1995) (internal citations om itted). Darnell never challenged the suf

f iciency of the evidence a gain. He did n ot renew his m otion f or a directed verdict, request a perem ptory instruction, or f

ile a posttrial m otion f

or a judgm ent notwithstanding the verdict ( JNOV). “In the absence of a r enewal of the directed[ -]verdict [ m o tion], a request f

or a p erem

ptory i nstruction, or a m otion f or a [ JNOV, an appellant] has waived the suf

f iciency error on appeal.” Id . Consequently , Darnell is procedurally barred f rom challenging the suf

f iciency of the evidence on appeal.

6II. W eight of the Evidence ¶14. Next, D arnell claim s t he jury ’s verdict i s contrary to t he overwhelm ing w eight of the

e v i d ence. But D arnell did n ot f ile a m otion f

or a new trial. As a result, D arnell is a l s o procedurally barred f

rom challenging the weight o f t h e e vidence on appeal. S ee Price v. State , 7 49 So. 2d 1188, 1199 (¶38) (Miss. Ct. App. 1 999) (“The m a t ter o f evidentiary weight is waived by

the f ailure to m ove f

or a new trial.”).
III. Ineffective Assistance of Counsel ¶15. Darnell argues that his trial coun s e l w a s i nef f ective because he f

ailed preserve the issues regarding the s uf

f iciency and w eight of the e vidence o n a p peal. The State suggests that Darnell’s claim is prem ature, and it is better suited f or a m otion f

or post-conviction relief ( PCR). The State is correct that “ generally , inef f ective-assis t a

n c e - o f- c o u

n s e l c l a i m s a

r e m o r e appropriately brought during post-conviction proceedings.” Dartez v. State , 177 So. 3d 420, 422-23 (¶18) (Miss. 2015). As an appellate c ourt, our review i s lim ited to the record, which

m ay be inadequ a t e to f ully determ ine such claim s. Id

. at 423 (¶18). Under those circum stances, “the appropriate procedure i s to d eny relief , preserving the def

endant’s right
to argue the issue” in a PCR m otion. Id

. B ut an appellate court m ay “address an inef f ectiveness claim on direct appeal if the p resented issues are based on f acts f ully apparent f rom the record.” Id

. ¶16. A n a p p e l l a n t asserting inef f ective assistance of counsel m u s t d e mo n s t r a t e t w o

com ponents: First, the [ appellant] m

ust s h o w that counsel’s perf o rm ance w as def

icient. This requires showing that c ounsel m ade errors so serious that counsel was not

7f

unctioning as the “counsel” guaranteed

. . . by the Sixth Am endm ent. S econd, the [ appellant] m

ust show t h a t the def

icient perf

orm ance prejudiced the def ense. This requires showing that counsel’s errors were s o s e r i ous a s to deprive the [ appellant] of a f air trial, a trial whose result i s reliable. Unless a[ n appellant] m ake s b oth showings, it cannot be said that the conviction

. . . resulted f rom a breakdo w n in the adversary process that renders the result unreliable. Strickland v. W

a shington , 466 U .S. 668, 687 ( 1984). Stated m ore succinctly , an appellant “mu s t p r o ve t h at his attorney ’s perf orm ance was def

icient, and that the d ef

iciency was so substantial a s to deprive [ him ] of a f air trial.” D artez , 177 S o. 3d at 423 (¶19). An appellate
court exam ines “the totali t y of the c ircum stances t o determ ine whether counsel’s ef f orts were both def icient and prejudicial.” Id

. “There i s a s trong b u t r e b u t t a ble presum ption that counsel’s conduct f

alls within the w ide range o f reasonable prof essional assistance.” Id

. An appellate court will f

ind that counsel’s perf

orm ance was def

icient “[ o]nly where it is

rea s o n a b ly probable that, b ut f or t he attorney ’s errors, the outcom e would have been dif f erent.” I d

. ¶17. Essentially , D arnell argues that the ci r c u i t c o u r t w ould have granted a m otion f or JNOV if only his trial c ounsel had f iled such a m otion. Alternatively , Darnell suggests that the circuit court would have granted a n e w t r i a l i f his trial counsel would have f iled a posttrial m otion challenging the weight of the e vidence. The Mississippi Suprem e Court has reviewed such inef

f ective-assistance claim s o n direct appeal, and the record here is adequate f or us to r eview Darnell’s claim s. In Holland , 656 S o. 2d at 1198, the Mississippi Suprem e Court f ound that an attorney ’s perf orm a nce w as def

icient when the a t torney f ailed to raise posttr i a l c h allenges to the weight or suf f iciency of the evidence. The attorney ’s f ailure to

8raise s uch c h a l l e nges was prejudicial to the def e ndant, because there was insuf f icient evidence t o support the jury ’s verdict, and there was a r easonable prob a b i l ity that the trial judge w ould have granted a m otion f or J NOV. Id

. In Parker v. State , 3 0 So. 3d 1 222, 1235 (¶49) (Miss. 2010), the suprem e court also held that an attorney ’s p erf orm ance was def

icient f or f ailing to raise sim i lar post-trial m otions. But b ased o n the evidence p resented at trial, th e r e w a s n o i ndication that the outcom e would have been d if f erent but f

o r the attorney ’s def icient perf

orm ance. Id .; see also Price , 749 So. 2d at 1199 (¶¶37-38). ¶18. D a r n e ll was convicted of aggravated assault under Missi s s i p p i C o d e A n n o t a t e d section 9 7

- 3 -7(2)(a)(ii) ( Supp. 2015). The indictm ent c harged D a r nell with “unlawf

ully , willf ully , f eloniously , purposely [ ,] and knowingly caus[ ing] bodily injury to . . . Harris . . . with a deadly weapon, t o-wit: a p istol, b y s h o o t ing

. . . Harris with [ the] p istol; without authority of law[ ,] and n o t in necessary self [

- ]def e nse.” Assum i ng Darnell’s counsel had f iled a m o tion f

or J N OV, t he circuit court would h ave v iewed all credible evidence of guilty in the light m ost f

a vorable to t he State. Stringer v. State , 131 S o. 3d 1182, 1190 ( ¶32) (Miss. 2014). Viewed in that light, there was am ple evidence of

Darnell’s guilt. ¶19. Harris and other witnesses testif ied that h e f

ell toward or in the direction of Stallings’s

car af t er Darnell s hot him the f i r s t t i me , resulting in a superf icial h ead wound. Num erous witnesses said that Darnell was m oving toward Harris while shooting at him , and H arris was try ing to g et away f

rom him

. Although Jones l ater t estif ied dif f erently , t he day af

ter t he shooting s he gave a statem ent and said that Darnell was still shooting at Harris w hile Harris

was try i ng to get into Stallings’s car. In the light m ost f avorable to the S tate, there was

9evidence that Harris was no longer a threat to Jones or Darnell when Darnell shot Harris a

second t im e. I n Cooper v
. State , 9 11 So. 2d 665, 672 ( ¶28) ( Miss. Ct. App. 2 005), this Court upheld a m anslaughter conviction where “testim ony indicated that [ the def e ndant] acted in self -def e nse and def

ense o f others, [ but other] testim ony a l so indicated that [ he] acted unreasonably .” Ultim ately , “[ m ]atters regarding the weight and c redibility t o b e a c corded the evidence are to b e resolved by the jury .” Id

. Thus, there is no reasonable probability that the outcom e w ould have b e e n d i f f e r e nt e v en i f Darnell’s trial counsel would have f iled a posttrial m otion f

or JNOV. T he sam e is true r egarding a h y pothetical m otion f

or a new trial, which would require viewing the evidence in the light m o st f a v o rable to the verdict. See
B u s h v
. S

tate , 895 So. 2d 836, 844 (¶18) (Miss. 2005). Because there i s n o reaso n a b l e probability that the o utcom e would have been dif f erent, Darnell’s a r gum ents u nd e r this heading f ail. Accordingly , we f

ind no m erit to this issue.
IV. Length of the Sentence ¶20. Finally , Darnell argues that his sentence is excessive. His argum e n t i s based on his claim that he w a s a c t i ng in self -def ense a n d/or def

ense of Jones, and Harris was the
aggressor. It is well established that “sentencing lie s w i t h i n t he s ole discretion of the trial
court and, generally , will not b e disturbed on appeal ‘so l o n g a s i t d o e s not exceed the

m axim u m term allowed by statute.’” M osley v. State, 104 So. 3d 839, 8 41 (¶10) (Miss. 2012) (quoting Gibson v. State, 731 S o. 2d 1087, 1097 (¶28) (Miss. 1998)). “However, a sentence that i s gro s s l y disproportionate to the crim e com m itted m ay be reviewed on Eighth
Am endm ent grounds.” Ford v. State, 975 So. 2d 859, 869 (¶39) (Miss. 2008).

1 0¶21. The m axim um s entence f

or aggravated assault is twenty y ears in the custo d y o f the MDOC. Miss. Code Ann. § 97-3-2(a). The c i rcuit c ourt sentenced D arnell to twenty y ears with f i ve y ears suspended, f

ollowed b y f

i v e y ears of p ost-release supervision. Darnell’s
sentence does not exceed t he statutory m axim um . Furtherm o re, “[ a]ggravated assault with

a deadly weapon is a serious, v i olent c rim e.” Ford , 975 So. 2d at 8 70 (¶40). A s e venteeny ear sentence f

or aggravated assault “does n o t lead to an inf erence of ‘gross disproportionality .’” Id

. Likewise, Darnell’s sentence is not grossly disproportionate to his crim e. W e f

ind no m erit to this issue. ¶22. THE JUDGMENT OF THE CIRCUIT C O URT O F LOWNDES COUNTY OF CONVICTION O F A GGR A V A TED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN YEARS TO SERVE AND FIVE YE A R S SUSPENDED, FOLLOWED B Y F I V E Y E A R S O F P O S T
- R E L E A S E S U P E RVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSE S S E D TO THE APPELLANT. LEE, C.J., GRI F F I S , P.J., BARNES, ISHEE, CARLTON, F AIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

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