IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2013-KA-02078-COA CASEY MARK BURGESS A/K/A CASEY BURGESS A/K/A CASEY M. BURGESS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 06/19/2013 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DONALD W . BOYKIN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, ATTEMPTED KIDNAPPING, AND SENTENCED TO TEN YEARS; AND COUNT II, AGGRAVATED ASSAULT, AND SENTENCED TO TW ENTY YEARS, W ITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED - 05/17/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., CARLTON AND JAMES, JJ. JAMES, J., FOR THE COURT: ¶1. On Novem

ber 8, 2012, Casey M ark Burgess was indicted f or attem pted kidnapping in v iolation of Mississippi Code Annotated section 97-3-53 (Rev. 2014) and a g g r a v a ted assault in violation of

Mississippi Code Annotated s ection 9 7-3-7(2)(b) (Supp. 2015). On
June 18-19, 2013, Burgess was t ried and f ound guilty by a Rankin Coun t y jury of bothcharges. Burgess was sentenced t o ten y ears f or attem p ted kidnapping and twenty y ears f or aggravated assault, to b e served in the custody of the Mississippi Departm ent of Corrections (MDOC), w i t h t h e s e n tences to run concurrently to each other, but consecutively to the
sentence t hat Burgess h ad received in a separat e c a s e , Rankin County Circuit Court cause

num ber 23-730

. 1 B u r g ess argues that t he trial court erred by adm itting certain evidence; ref using to adm it certain evidence; giving a certain jury i nstruction; and deny ing his constitutional right to a f

air and im

partial jury

. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Jeanette Yung, the victim , testif ied t o a detailed account of the aggravated assault and
attem pted kidnapping. On the witness stand, Yung af f irm atively

identif ied Burgess as her attacker. Yung testif

ied t hat o n Septem

ber 1, 2011, s h e and her two-y ear-old d a u g h t e r arrived at their hom e in the Castlewoods subdivision w ith groceries and a greeting card she had p urchased f

rom W alm a rt. Im m ediate l y af ter Y ung parked h er vehicle in h er garage, Burgess pulled int o her driveway , ef f ectively blocking i n her v ehicle. Y ung exited her vehicle holding her W alm a rt shopping bags, wi t h t h e greeting card in one of the shopping bags. Yung’s daughter r e m a ined in her carseat i n the vehicle. Yung did not know Burgess, and had never seen him bef o re. Yung testif

ied that he was wearing a baseball c a p. Burgess exited his truck, then told Yung, “I’ve got y our paperwork,” and began to approach her. ¶3. Burgess c ontinued approaching Yung. H e was a rm ed with a L e atherm a n knif e in his hand. He told her: “ [ G ]et in [ m y ] f ***ing truck or I’m going to stab y o u.” Burgess grabbed

1 O n A p ril 3 , 2 0 1 3 , B u rg ess w as co n v icted o f th ree co u n ts o f s e x u al b attery ag ain st h is w if e in cau se n u m

b er 2 3 -7 3 0

. 2Yung’s arm s a n d s h o v e d her toward his t ruck while holding the knif e t o her side. Yung resisted. Burgess p u t the knif e to her n eck, and put her in his truck. Yung continued to resist and struggled f

or the knif

e. During the struggle, she dropped t he item s she w as h olding. She also s uf f ered cuts to her hands and bruises on h er arm s. Y ung was able to g et t he knif e f rom Burgess and f

ree herself

f rom him . Yung ran to the f

ront of her house scream ing f

or help. She looked t o check on her daughter, and then she saw Burgess get into h is t ruck and speed
away . Yung called 9-1-1, and law enf orcem ent r esponded to t he scene. Yung was taken to the ER f or treatm e nt of

her injuries. ¶4. Investigators of the Rankin County Sherif f ’s D epartm ent discovered a baseball cap;

a p lastic W alm art bag with item s inside; a Leatherm an tool with t he blade exposed a nd blood on it; and droplets of blood, all in Yung’s driveway near her garage. ¶5. Later that day , on Septem ber 1, 2011, a sherif

f ’ s d eputy spotted Burgess i n his truck

near his hom e. The deputy began to pursue him , and Burgess sped of f

. The d eputy lost sight of Burgess. A f

ew m inutes later, the dep u t y r eceived a call inf o rm ing h im of an auto accident involving a truck m atching the description of Burgess’s truck several m iles down the road. Burgess had w recked his truck, and f led into t he woods. The deputy arrived to the scene, entered the woods, and apprehended Burgess as he was com ing out of the woods. ¶6. The d ay af

ter the attack, Investigators Ray m o nd Duke and Chris Barnes m et Yung at
t h e w r e c k er y ard where the truck had been t owed. Yung conf i rm ed that the truck wa s t h e

sam e truck that B urgess was driving the d ay of the attack. Yung identif i ed the greeting card she had purchased at W a lm art on the f loorboard of the t ruck. Yung also identif ied Burgess

3in a photo lineup. Investigators discovered an em pty Leatherm an tool sheath in the truck. ¶7. Burgess testif

i ed in his own def

ense at trial. Burgess adm itted t o b e i n g i n Y u n g’s driveway , but denied having any i ntent to harm her. Burgess testif ied t o a dif

f erent account of w hat t ranspired. Burgess, who had previously l ived in Castlewoods, testif ied that he was in the subdivision that day collecting discarded item s that had been placed on the curb. He explained that one of his hobbies was picking u p salvageable item s. Burgess’s m o ther also testif i ed conf irm ing that Burgess had a hobby of c ollec t i n g salvageable item s. Burgess testif i ed t hat h e backed i nto Yung’s driveway to turn around, because he wanted t o go back to a box he had seen about two houses down f rom her driveway

. ¶8. Burgess testif

ied that while he w as in h er driveway , his cell phone started r inging, but it f ell between the passenger’s seat and the center console. Burgess put t he truck in park and walked around to the passenger side to retrieve his c e l l p hone. W h en h e opened the passenger door, a sheet of paper f rom a stack of paperwork on his passenger seat blew out of his truck. A Leatherm an w as under the stack of paperwork. He grabbed t h e s t a c k o f paperwork, and picked up the Leatherm an with the blade exposed. ¶9. At this tim e, Burgess s a w Y u n g i n t he driveway o utside t he garage. B u rgess f elt obligated to tell her that he w a s g e tting his paperwork, because h e was in her driveway

. Burgess testif

ied t hat Yung cam e toward him , gasped, and said: “Take any t hing y ou want. Take any thing y ou want.” Burgess denied touching her. Instead, he claim ed Yung grabbed his hand, and adm itted there was “a struggle.” Burgess testif ied that Y ung eventually pulled the Leatherm a n out o f his hands, and then ran aw a y f r om him scream ing, “ Help. Help.”

4Burgess closed the passenger door, and picked up a p ocketknif e that had been clipped to his
p o c k e t t h a t had f

allen to the ground. He testif ied that h e got into h is truck and drov e o f f quickly because he w as scared Yung would alert the police. He also t estif ied that h e quickly lef t because he h ad b een drinking alcohol, sm oking crack cocaine, and had drugs i n his truck. ¶10. On cross-exam ination, the prose c u t or questioned Burgess on inconsistencies between his v ideoed interview he had with law enf orcem ent f

ollowing his arrest and h is testim ony at
t r i a l

. B urgess’s v ideoed interview with law enf orcem ent was entered into evidence and play ed f or the jury

at trial. ¶11. The jury returned a verdict f indi n g B u r g e s s g u i l t y f

o r attem p ted k idnapping and aggravated assault. Burgess was sentenced to ten y ears f or attem pted k idnapping and twenty
y ears f or aggravated assault, t o be s e r ved in the custody of the MDOC, with the sentences
to run concurrently , but consecutively to the sentence that Burgess h ad received in cause

num ber 23-730. Burgess f

iled a m otion f

or a judgm ent notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the m o tion, and Burgess f i l e d h is notice of appeal. ¶12. Burgess raises f

ive issues o n appeal: ( 1) whether evidence of Burgess’s p rior f elony convictions should have been ex c l u d e d and whether evidence of his intent to appeal those convictions should have been adm itted; (2) whether the trial court e rred b y n o t granting a mi s t r ial f ollowing testim o ny t hat Burgess had b een interviewed by law enf orcem e n t regarding an a ssault on his wif e; (3) whether t he t rial court erred by n ot a dm itting Burgess’s cell-phone records; (4) whether the trial court erred by giving jury instruction S -3A; and (5)

5whether Burgess’s constitutional right to a f air and im

partial jury

was denied. DISCUSSION
I. Whether the trial court erred by adm itting Burgess’s p rior felony convictions and ex cluding evidence of Burgess’ s i n tent to appeal those convictions

. ¶13. Burgess argues that the trial court erred by allowing evidence of Burgess’s t hree prior f elony convictions f

or sexual battery

. Burgess argued that evidence o f t he prior convictions should not have been perm itted under Mississippi Rule of Evidence 609(a)(1). ¶14. A t rial court’s d e cision to adm it a prior conviction f or im peachm e nt i s r eviewed under

an ab u s e -of

-discretion standard. Myers v. S tate , 1 53 So. 3d 581, 587 ( ¶21) (Miss. 2014) (citing Strickland v. State , 980 So. 2d 908, 919 (¶18) (Miss. 2008)). ¶15. Rule 609(a)(1) of

the Mississippi Rules of

Evidence states: (a) General Rule. For t he purpose of attacking the character f

or truthf u lness of a witness, (1) evidence that ( A ) a n onparty witness has been c o nvicted of a crim e shall be adm itted subject to Rule 403, i f t h e c rim e was punishable b y death or im p risonm ent in excess of one y ear u nder the law under which the witness was convicted, a nd (B) a party has been convicted of such a crim e shall be adm itted if the court determ ines t hat the probative value of adm itting t h i s e v i dence outweighs its prejudicial ef f ect to the party [ .] ¶16. Burgess cites M

cInnis v. State , 527 So. 2 d 84 (Miss. 1984), in support of his argum ent that h is three prior f

elony convictions f

o r sexual battery have no probative value o n the issue of truthf ulness, and should not have been a d m itted f or im peac h ment p urposes. However,
McInnis was overruled to the extent that i t held only prior c onvictions relating to dishonesty

or a f alse statem ent were allowed to be used f or im peachm e nt purposes. W

h ite v. State , 785

6So. 2 d 1059, 1061 ( ¶¶5-6) ( Miss. 2001). Indeed, “[ a] crim e which does no t i n v o l v e

propensity of t ruthf

ulness m ay be adm issible u n der 609(a)(1) so long as it m eets the requirem ents which are set f orth in that rule.” T

r i p l e t t v
. State , 881 So. 2 d 3 03, 305 (¶10) (Miss. Ct. App. 2004). ¶17. “Convictions of

f ered under 609(a)(1) to im peach a party m

ust be analy

zed under the guidelines set f

o rth in Peterso n 2 to determ ine if the probative value is great enough to

overcom e the presum ed p rejudicial ef f ect to that party , a nd f

indings should be m ade on the record by the judge.” S

trickland , 980 So. 2d a t 920 (¶18) (citing M. R

. E

. 6 0 9 c mt

. )

. The
Peterson f

actors include: (1) t he im

peachm ent value of the prior crim e; (2) the point in t im e of the conviction and t he witness' s subsequent history ; (3 ) t he sim ilarity between the past crim e and the charged crim e; (4) the i mp o r t a n c e o f the def endant' s testim ony ; and (5) the centrality of the credibility

issue. Peterson , 518 So. 2d at 636. ¶18. At the c lose of the prosecuti o n ’ s c a s e - in-chief , Burgess m ade the decision that he would take the stand t o t estif y . The prosecution m oved the trial court to perm it it to introduce evidence o f Burgess’s three prio r f e lony convictions f

or sexual battery f

or im p eachm ent purposes. ¶19. The trial court conducted a f ull, on-the-record Peterson hearing. The trial court m ade

a f inding a s to each Peterson f actor, concluded that the f actors overall weighed in f avor of adm issibility , and de t e rm i ned that the probative v alue of adm itting evidence o f the three prior f elony convictions outweighed any prejudicial e f f ect to B urgess. However, the trial court

2 P eterso n v. S ta te, 5 1 8 S o . 2 d 6 3 2 (M iss. 1 9 8 7 ). 7ruled that the jury would not be allowed to hear t hat the three prior f elony convictions were f or sexual battery nor any other details of t hose convi c t i o n s . T h e trial court instructed the jury that evidence of Burgess’s p rior convictions was n ot evidence of g uilt f or the attem

pted kidnapping and aggravate d a s s a u l t o f Yung. The trial court also instructed the jury that evidence of the p r ior convictions could be used in assessing the credibility of Burgess as a witness. A f

ter reviewing the record and the trial court’s Peterson analy sis, w e f i nd that the trial court did not abuse its discretion in adm itting Burgess’s three p rior f elony convictions under Rule 609(a)(1). ¶20. Burgess also argues t hat the trial court erred by d eny ing h im t he opportunity to testif y that he intended to appeal the three prior f elony convictions. Mississippi Rule of Evidence 609(e) provides: “The pendency of an a ppeal t h e r e f

r om d oes not render evidence of a conviction inadm issible. Evidence of the pendency of a n a p p e al is adm issible.” The

com m ent to Rul e 6 0 9 (e) states that, “[ o]nce the prior conviction h as been introduced, the adversary can present evidence that an appeal of that conviction is pending.” ¶21. A l t h o u gh evidence of the pendency of an appeal is adm issible under R u l e 6 0 9 ( e ) , there was no evidence that Burgess had actually appealed h is t hree prior f elony convictions f or sexual battery at the t im e of his trial. 3 Because there w as no p ending appeal at the t im e of the trial as required by Rule 609(e), the tri a l c o u r t d i d not e rr by ref using to allow testim o ny regarding Burgess’s intent to appeal his prior convictions.
II. Whether the trial court erred by not granting a m istrial follow i ng

3 O n S e p tem

b e r 5 , 2 0 1 3 , B u rg ess f

i led a n o t i c e o f ap p eal in cau se n u m b er 2 3 -7 3 0

. B u rg ess v. S ta te , 2 0 1 3 -K A -0 1 5 1 6 -S C T

. 8testim ony that Burgess had b een interview ed by law enforcem e nt regarding an assault on his w ife. ¶22. Burgess argues the trial court erred by not granting a m istrial af ter a law-enf

orcem ent of f icer testif ied that Burgess had been interviewed f or an assault on his wif

e and Yung. ¶23. On dire c t e x a mi n a t i o n , I n v e s t i g a t o r Wa y ne Hum phrey s, of t he Rankin County Sherif f ’s Departm ent, testif

ied that Burgess was arrested and a d vised of his Miranda 4 rights. Af ter Burgess waived h is Miranda rights, h e gave a videoed interview with law-enf orcem ent investigators. Investigator Hum phrey s gave t he f

ollowing t estim o ny r egarding the videoed interview: Q: And what portion of that – of t he interview does that v ideotape deal with? A: This is – it – it – it– dealt with two things – Q: Okay

. A: – an assault on his wif e and an assault on Jeanette [ Yung] – ¶24. At that point, Burgess’s attorney im m ediately objected to the testim o ny , and m oved f or a m is t r i a l

. A r gum e nts were presented outside t he p resence of t he jury

. The trial court sustained t he objection t o the testim ony , but denied Burgess’s m otion f or a m i strial. The trial
court instructed the jury : “[ T]he Def e nse had o bjected t o certain t e s t i m o ny by Mr.
Hum phrey s. I have sustained that objection and I’m going to instruct y ou to disregard any
response by Mr. H um

phrey s concerning any other allegation other than that we are here today on.” T he jury af

f irm atively acknowledged tha t t hey understood the instruction. The trial

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

. S . 4 3 6 (1 9 6 6 ). 9c o u

rt then individually questioned each juror whether he o r she could disregard any statem ent about any other allegation. Every juror answered that he or she could. ¶25. “This Cou r t w i l l n o t r e v e rse on the f ailure to grant a m istrial unless the trial court abused its discretion i n overruling the m otion f o r a m i strial.” C

arpenter v. S

tate , 910 So. 2d 528, 534 (¶23) (Miss. 2005). “W here serious and irreparable dam age has not resulted, the judge should adm onish the jury then and there to disregard the im p ropriety .” Id

. “This Court

on num e rous occasions has held that where the trial judge sustains an appellant' s objection
to t he testim ony of a witn ess a nd instructs the j ury to d isregard the sam e, prejudicial error does n ot result f

r om that t estim ony .” Ford v. State , 147 S o. 3d 325, 330 (¶11) (Miss. 2014) (citing Snelson v. State , 704 So. 2d 452, 456 (¶26) (Miss. 1997)). ¶26. Burgess argues t hat he was prejudiced b y I n v e s t i g a t o r H u mp h r e y s ’s testim ony

m entioning a s eparate assault of his wif e because it went to the heart of the m a tter o f whether he a s saulted Yung. Burgess also argues that the lim iting i nstruction did n o t c u r e t he prejudicial ef

f ect. ¶27. The t rial court sustained Burgess’s objection, and instructed the jury to disregard any
statem ent m ade by Investigator Hum phrey s regarding any o ther allegation other than those

at i ssue i n the trial. “It is presum ed, u nless otherwise s hown, that the jury f ollowed the instruction given by t he trial c ourt.” Id. at (¶12) (citing Flora v
. State , 925 So. 2d 797, 805 (¶10) (Miss. 2006)). ¶28. Because the trial court is in the best position to assess prejudicial ef f ect, we af f ord the trial court considerable d iscretion in ruling on a m otion f o r a mi s t r ial. I

d

. at (¶11) (citing

1 0Harrell v. State , 947 S o. 2d 309, 3 16 (Miss. 2 007)). A f ter reviewing the t estim o ny , we f ind that any prejudicial ef

f ect o f Investigator Hum

phrey s’s statem e n t was cured by the trial court’s adm onition. See Gossett v. State , 660 So. 2d 1285, 1290-91 (Miss. 1 995) (holding that t he trial court’s adm onition of the prosecution witness’s testim ony regarding prior bad conduct c u r e d any harm that m ay have been inf l icted on the def

endant’s def

ense). Accordingly , the trial court did no t abuse its discretion in deny ing Burgess’s m otion f or a

m istrial.
III. W h e t her the trial court erred by not adm i tting B urgess’s c e l l
phone records. ¶29. Burgess argues that the trial court erred b y not adm itting his c ell-phone records. At trial, the prosecutor objected t o the introduction o f the cell-phon e r e c o rds. T he trial court determ ined that the cell-phon e r e cords were not relevant, and sustained the prosecutor’s objection. Burgess testif

ied that he was i n t he subdivision looking f or discarded item s. He also t estif ied t hat he m ade two phone calls to a f riend t elling him that he was in Castlewoods looking f or discarded item s. Burgess argues that the purpose of the cell-phone records was
to verif y t h a t B u r gess had a ctually m ade the calls, that he was not sim ply l oitering in the subdivision, and that he had sent som e text m essages. ¶30. The standard of review applied to a trial c ourt' s decision to adm it or exclude evidence is abuse of discretion. Robinson P rop. Grp. L.P. v. Mitchell , 7 So. 3 d 240, 243 (¶9) (Miss. 20 09). The relevancy a nd a dm issibility of evidence are well within the trial court’s discretion, and reversal m ay be had only wher e t h a t d i s cretion has been abused. Bingham v. State , 723 So. 2d 1189, 1191 (¶9) (Miss. Ct. App. 1998).

1 1¶31. “‘Relevant Evidence’ m eans evidence having any tendency to m ake t he existence of

any f act that is of c onsequence t o the determ ination of the a ct i o n mo r e p r o b able or less probable than it would be without the e vidence.” M.R.E. 4 01. H owever, “[ e]vidence which is not relevant is n ot a d m i s sible.” M.R.E. 4 02. The cell-phone records did not have any tendency t o m ake the existence of any f act that was of consequence to the determ ination of the action, which i nvolved w hether Burgess was guilty of attem pted kidna p p ing and aggravated assault, m ore or less l i k e l y than it would h ave b een without the e vidence.
W h ether B urgess actually m ade the phone calls and sent som e text m essag e s b e f o r e t he attack w a s n o t r e levant under Rule 401. The trial court d id not abuse its discretion in excluding the cell-phone records.
IV. Whether the trial court erred by giving jury instruction S-3A. ¶32. Burgess argues that the trial court should have ref used jury instruction S-3A, which

was an “acqu i t f

i rst” lesser-included-of

f ense instruction. Burgess contends that such an “acquit f i rst” i n struction h as the ef f ect of pressuring the jury to convict a def e ndant, resulting in a coerced verdict. ¶33. “W hether to grant or deny proposed jury instructions is within the sole discretion of the [ trial] court.” Victory v. State , 83 So. 3 d 3 70, 373 (¶12) (Miss. 2012) (citing Newell v. State , 49 So. 3d 66, 73 (¶20) (Miss. 2010)). As such, the g iving or ref u sal of jury instructions i s r eviewed under an abuse-of -discretion standard. Id. W e review t he jury instructi o n s a s a whole to determ ine whether an error has occurred. Id. ¶34. The portion of

jury instruction S-3A that Burgess contends was im proper provided:

1 2“The Court i nstructs the Jury that if y ou unanim ously f ind that the prosecution f

ailed to prove all the elem e nts of t h e c rim e o f aggravated assault, y o u m ay then proceed in y our deliberations to consider the lesser charge of s im ple a s s a ult.” The Mississippi Suprem e Court h as held that an “acquit f irst” instructi o n , s u ch as jury instruction S -3A, is not prohibited by Mississippi law. Fulgham v. State , 46 So. 3 d 315, 3 29-30 (¶40) (Miss. 2010);

see also W

hite v. State , 149 So. 3d 556, 559 (¶10) (Miss. Ct. App. 2014). T his argum ent is without m erit.
V. Whether B urgess’s constitutional r ight to a fair and im partial jury w as denied. ¶35. Burgess argues his constitutional rig h t t o a f a i r a n d i mp a r t i a l jury was denied. S p e c if ically , Burgess argues that juror num ber 12 should have been stricken f o r c a u s e because the juror stated that h e w ould tend to believe law-enf orcem ent of

f icers, and had alway s k nown them to be f

actual. The trial court ref used to strike j u r o r 1 2 f o r cause. Burgess used his last perem p t ory challenge to strike juror 12. As a r esult, juror 12 did not actually s it on the jury

. ¶36. Burgess argues that he and the prosecution were not t reated equally because he had

t o use his last perem

ptory challenge to strike juror 12. However, “[ t]he m er e l o s s o f a
perem ptory challenge is not enough to constitute a v iolation of the constitutional right to an im p artial jury .” J

o h nson v. S

tate , 6 8 S o. 3d 1239, 1246-47 (¶24) (Miss. 2011) (citing Mettetal v. State , 615 So. 2d 600, 603 (Miss. 1993)). ¶37. In Christmas v. State , 10 So. 3d 413, 423 (¶47) (Miss. 2009), the court held: So long as the jury t hat s its is im partial, the f

act that the def

endant had to u se

1 3a perem ptory c hallenge to achieve that r esult does not m ean that the def endant was denied his constitutional rights. This C ourt h a s e x p lained that a prerequisite to presentation of a claim o f a denial of

constitutional rights due to denial of a challenge f o r c a u se is a s howing that the def e ndant had exhausted a ll of his perem ptory challenges and that the incom petent juror was f orced by the trial court' s erroneous ruling to sit on the jury

. Id. (internal citations om itted). ¶38. Although Burgess exhausted his perem p t o r y c h a l l e n g e s , he f

ails t o show that an incom petent juror was f

orced to sit on the jury due to an erroneous ruling by the t rial court. Thus, this argum ent is without m e rit. ¶39. THE JUDGMEN T O F THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ATTEMPTED KIDNAPPING, AND S ENTENCE OF TEN YEARS; AND COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS, W ITH THE SENTENCES TO R UN CONCURRENTLY IN THE CUSTODY OF THE M ISSISSIPPI DEPARTMENT OF C O RRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL A R E A SSESSED T O RANKIN COUNTY.
L E E , C . J . , I R

V I N G AND GRIFFIS, P.JJ., BARN E S , I S H E E , C A R L T O N , F A I R , WILSON AND GREENLEE, JJ., CONCUR.

1 4