IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2014-KA-01783-COA

ANDREW GRAHAM, JR. A/K/A ANDREW

GRAHAM

APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/03/2014

TRIAL JUDGE: HON. MICHAEL M. TAYLOR

COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER

BY: GEORGE T. HOLMES 

 JUSTIN TAYLOR COOK

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: BARBARA WAKELAND BYRD

DISTRICT ATTORNEY: DEE BATES

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: CONVICTED OF CONSPIRACY AND

SENTENCED, AS A HABITUAL

OFFENDER, TO FIVE YEARS IN THE

CUSTODY OF THE MISSISSIPPI

DEPARTMENT OF CORRECTIONS AND

ORDERED TO PAY A $2,000 FINE

DISPOSITION: AFFIRMED - 03/01/2016

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE IRVING, P.J., CARLTON AND JAMES, JJ.

CARLTON, J., FOR THE COURT:

¶1. A Lincoln County jury found Andrew Graham guilty of conspiracy to possess a

controlled substance inside a correctional facility. See Miss. Code Ann. § 47-5-198 (Rev.

2011); Miss. Code Ann. § 97-1-1 (Rev. 2006). The Lincoln CountyCircuit Court sentenced
Graham, as a habitual offender, to five years in the custody of the Mississippi Department

of Corrections (MDOC) and fined Graham $2,000. Graham appeals his conviction to this

Court and raises the following issues: (1) whether his indictment was defective; (2) whether

the evidence was legally sufficient to support his conviction; and (3) whether he was illegally

sentenced as a habitual offender. Finding no error, we affirm.

FACTS

¶2. A grand jury indicted Graham with the following charges in a two-count indictment: 

Count I, bringing marijuana, a controlled substance, into a correctional facility; and Count

II, conspiracy to possess a controlled substance inside a correctional facility. Prior to trial,

the State moved to amend Graham’s indictment to reflect his habitual-offender status under

Mississippi Code Annotated section 99-19-81 (Rev. 2007). During the pretrial hearing on

its motion, the State offered into evidence certified copies of sentencing orders related to

Graham’s prior felony convictions to prove the predicate offenses to establish Graham’s

habitual-offender status. The circuit court took judicial notice of the certified copies of

Graham’s prior sentencing orders and admitted the orders into evidence. As the record

reflects, the sentencing orders reflected that Graham possessed the following felony

convictions: (1) burglaryof an automobile and conspiracy in cause number 01-248-MS, with

a sentence of three years in MDOC’s custody; and (2) possession of a firearm by a convicted

felon in cause number 05-104-LT, with a sentence of three years in MDOC’s custody.

¶3. The record reflects that Graham raised no objection to the State’s motion to amend

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his indictment to charge habitual-offender status under section 99-19-81. In addition,

Graham failed to object to the validity or sufficiency of the State’s evidence as to Graham’s

prior felony convictions that the circuit court admitted into evidence. After reviewing the

State’s evidence, the circuit court granted the State’s motion to amend Graham’s indictment

to reflect his prior felony convictions and his habitual-offender status.

¶4. At Graham’s trial, Officer Teresa Lawrence testified that she was on duty at the

Lincoln County Jail on the evening of February 24, 2012. While the inmates spent time in

the jail yard, Officer Lawrence monitored their activity from the control room. As she

watched the monitors showing video from the yard’s cameras, Officer Lawrence noticed

some suspicious activity. Officer Lawrence testified that two doors opened onto the yard. 

The first door allowed inmates and jail personnel to access the yard from inside the jail. The

second door was located in one of the yard’s exterior walls. Officer Lawrence testified that

this exterior door allowed access beyond the jail in case of an emergency. Officer Lawrence

testified that she noticed Graham and another inmate standing by the yard’s exterior door. 

As she watched the jail’s video monitor, Officer Lawrence stated that she saw Graham and

the other inmate bend down by the exterior door and “get stuff out from under the door.” 

Based on the activity she observed, Officer Lawrence alerted Officers Larry Morris and

Donald James.

¶5. After Officer Lawrence contacted them, Officer Morris and Officer James conducted

a search of each inmate as he reentered the jail. Officer James testified that there were about

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six or seven inmates to search. Terrance Hudson was the third inmate the officers searched. 

Officer James testified that he discovered three envelopes concealed on Hudson. 

¶6. After searching Hudson, the officers searched Graham, who was the next inmate to

reenter the jail. According to Officer Morris’s testimony, Grahamhad complained of feeling

cold before he went outside. As a result, the officers allowed Graham to take a blanket with

him to the yard. As Graham attempted to reenter the jail behind Hudson, Officer Morris

noticed that Graham’s blanket looked bulky. Both officers testified that Graham attempted

to pass the blanket over Officer James’s head to Hudson. Officer James also testified that

Graham made a statement to the effect that Officer James should “let him [(Graham)] go,

don’t worry about [the blanket.]” 

¶7. Despite Graham’s attempts to pass the blanket to Hudson, the officers intercepted the

blanket before Graham could complete the transfer. After completing their searches of the

remaining inmates, Officer Morris and Officer James took the confiscated itemsto the jail’s

control room. In addition to the envelopes in Hudson’s possession, the officers discovered

a yellow bag inside Graham’s blanket that contained additional envelopes. Officer James

testified that the envelopes concealed in Graham’s blanket contained tobacco and what

appeared to be marijuana. Later in the State’s case-in-chief, the jury heard testimony that

tests performed by the Mississippi Crime Laboratory confirmed the green leafy substance

found in the envelopes was marijuana.

¶8. The jury also heard testimony from Chief Deputy Johnny Hall Jr. Chief Deputy Hall

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testified that he received a phone call the evening of February 24, 2012, informing him that

someone had tried to sneak contraband into the jail. After receiving the phone call, Chief

Deputy Hall went to the jail and viewed the surveillance video. Consistent with other

testimony presented by the State, Chief DeputyHall testified that the video showed Graham,

who had a blanket wrapped around him, and Hudson standing near the jail yard’s exterior

door. Chief Deputy Hall further testified that, upon inspecting the exterior jail-yard door, he

observed a small crack in the door near the locking mechanism. According to Chief Deputy

Hall’s testimony, the crack was large enough to slide something through the opening.

¶9. After hearing the evidence and testimony, the jury failed to reach a verdict on Count

I of Graham’s indictment for bringing marijuana, a controlled substance, into a correctional

facility. However, the jury found Graham guilty of Count II for conspiracy to possess a

controlled substance inside a correctional facility. On appeal, Grahamattacks the sufficiency

of his indictment as to Count II, and he attacks the sufficiency of the jury’s verdict finding

him guilty of Count II charged in the indictment.

¶10. During Graham’s sentencing hearing, the State sought to have Graham sentenced as

a habitual offender. The circuit court referenced its pretrial ruling, which ordered Graham’s

indictment to be amended to reflect his prior felony convictions and his habitual-offender

status. After referencing its previous ruling, the circuit court sentenced Graham, as a habitual

offender, to five years in MDOC’s custody and fined Graham $2,000.

¶11. On appeal, Graham argues that the circuit court illegally sentenced him as a habitual

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offender. As stated, however, the record reflects that Graham raised no objection to his

enhanced sentence during the sentencing hearing. In addition, Graham’s posttrial motion for

a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial failed to

raise the issue. Instead Graham asserted the following assignments of error in his posttrial

motion: (1) the verdict was contrary to the evidence; (2) the verdict was against the weight

of the evidence; and (3) the circuit court erred by “altering the jury panel in the manner in

which the panel was altered prior to trial.”

¶12. Aggrieved by the circuit court’s denial of his posttrial motion, Graham now appeals

to this Court.

DISCUSSION

I. Whether Graham’s indictment was defective.

¶13. Graham asserts his indictment was fatally defective for failure to specify the

contraband that he conspired to possess in the correctional facility. “Whether an indictment

is fatally defective is a question of law, which this Court reviews de novo.” Jones v. State,

130 So. 3d 519, 524 (¶13) (Miss. Ct. App. 2013) (citing Moten v. State, 20 So. 3d 757, 759

(¶4) (Miss. Ct. App. 2009)).

¶14. The record reflects that Graham failed to raise this argument before the circuit court. 

“Generally, a trial judge will not be found in error on a matter not presented to him for

decision. It is only in cases where the indictment does not charge an offense that defects in

an indictment may be challenged on appeal for the first time.” Id. at (¶14) (internal citations

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and quotation marks omitted). During the trial court proceedings, Graham failed to preserve

any objection to the sufficiency of his indictment. Therefore, absent a showing of

jurisdictional error or actual prejudice, he waived complaints as to sufficiency. See Brooks

v. State, 573 So. 2d 1350, 1353-54 (Miss. 1990); Perkins v. State, 487 So. 2d 791, 792 (Miss.

1986); Jones v. State, 356 So. 2d 1182, 1184 (Miss. 1978).1

¶15. As our caselaw establishes:

The purpose of an indictment is to give the defendant reasonable notice

of the charges against him in order that he may prepare an adequate defense. 

Brawner v. State, 947 So. 2d 254, 265 (¶31) (Miss. 2006) (citing Brown v.

State, 890 So. 2d 901, 918 (¶61) (Miss. 2004)). Indictments must contain “a

plain, concise[,] and definite written statement of the essential facts

constituting the offense charged and shall fully notify the defendant of the

nature and cause of the accusation.” URCCC 7.06. The ultimate test for the

validity of an indictment is whether the defendant was prejudiced in preparing

his defense. Medina v. State, 688 So. 2d 727, 730 (Miss. 1996). 

Jones, 130 So. 3d at 524 (¶13). 

¶16. The record reflects that Graham’s indictment included the essential statutory elements

of the charges against Graham, and the indictment provided Graham with reasonable notice

of the charges so that he could prepare an adequate defense. See id.2 The record also reflects

1 Cf. Miss. Code Ann. § 99-39-21(1) (Rev. 2015) (“Failure by a prisoner to raise

objections, defenses, claims, questions, issues[,] or errors either in fact or law which were

capable of determination at trial and/or on direct appeal, regardless of whether such are

based on the laws and the Constitution of the state of Mississippi or of the United States,

shall constitute a waiver thereof and shall be procedurally barred, but the court may upon

a showing of cause and actual prejudice grant relief from the waiver.”).

2

See also Davis v. State, 171 So. 3d 537, 540 (¶11) (Miss. Ct. App. 2015) (stating

that the objective of an indictment is to provide the defendant with fair notice of the crime

charged); Shorter v. State, 946 So. 2d 815, 818 (¶¶9-11) (Miss. Ct. App. 2007) (discussing

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that the indictment tracked the language of the charging statute. Count I of Graham’s

indictment charged that Graham “did wilfully, unlawfully, feloniously[,] and knowingly

bring [m]arihuana, a controlled substance, into the Lincoln County Jail, a correctional

facility[.]” Count II of Graham’s indictment further charged the following:

Graham and Terrance D. Hudson did wilfully, unlawfully, feloniously[,] and

knowingly conspire and agree, each with the other, and/or with some other

person or persons to the grand jurors unknown, to commit the crime of

possession of a controlled substance inside a correctional facility . . . ; all of

said conduct alleged and set forth in counts one and two of this indictment

having then and there been based on two or more acts or transactions

connected together or constituting parts of a common scheme or plan[.] 

¶17. Graham argues that his indictment failed to provide him with any notice of the

controlled substance he allegedly conspired to possess in the correctional facility. Graham

further contends it is “inconsequential” that Count I of his indictment charged him with

unlawfullybringing marijuana into a correctional facility. According toGraham’s argument,

Count I is an entirely separate charge from Count II, and therefore, Count II’s failure to

specify the controlled substance that he was charged with conspiring to possess renders his

indictment defective as to that charge.

¶18. To support his argument that his indictment is defective, Graham cites this Court’s

recent opinion in Warren v. State, 2013-KA-00926-COA, 2015 WL 326660 (Miss. Ct. App.

Jan. 27, 2015). In Warren, the indictment charged the defendant with possession of a

controlled substance in a correctional facilityin violation ofsection 47-5-198. Warren, 2015

the essential elements of the defendant’s indictment).

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WL 326660, at *1 (¶1). On appeal, Warren argued her indictment was defective for failure

to identify the controlled substance she was alleged to have possessed. Id. at *2 (¶7). 

Agreeing with Warren’s argument, this Court reversed the circuit court’s judgment and

remanded the case. Id. at *3 (¶13).

¶19. Despite Graham’s assertions on appeal, we find Warren distinguishable from the

present facts. Unlike in Warren, where the indictment contained only one charge that

entirely failed to specify the nature of the controlled substance at issue, Count I of Graham’s

indictment provided notice that marijuana constituted the controlled substance that Graham

was charged with unlawfully possessing. Furthermore, Count II of Graham’s indictment

clearly acknowledged that “all [the] conduct alleged and set forth in counts one and two of

[the] indictment [were] based on two or more acts or transactions connected together or

constituting parts of a common scheme or plan[.]” 

¶20. Mississippi Code Annotated section 99-7-2(1) (Rev. 2015) and Uniform Rule of

Circuit and County Court 7.07(A) allow multiple-count indictments when the offenses are

based upon the same act or transaction or when the offenses are based upon two or more acts

or transactions that are connected or constitute parts of a common scheme or plan. 

Additionally, a defendant is procedurally barred from arguing an objection to a multi-count

indictment on appeal where the defendant failed to raise the objection at trial. See Patrick

v. State, 754 So. 2d 1194, 1195-96 (¶7) (Miss. 2000); Thomas v. State, 14 So. 3d 812, 816

(¶6) (Miss. Ct. App. 2009). The record reflects that Graham’s indictment included all the

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essential statutory elements of the charges against him and provided him with sufficient

notice of the charges so that he suffered no prejudice in preparing his defense. See Jones,

130 So. 3d at 524 (¶13). Accordingly, we find that Graham’s failure to raise this argument

before the circuit court procedurally bars the issue on appeal.

II. Whether the evidence was legally sufficient to support Graham’s

conviction.

¶21. In his next assignment of error, Graham asserts that the State’s case as to the

conspiracy charge was based completely on circumstantial evidence and speculation. 

Furthermore, Graham alleges that the State failed to show a “union of the minds” between

himself and Hudson. Based on these arguments, Graham contends that the State failed to

present sufficient evidence to convict him of conspiracy.

¶22. When addressing an argument regarding the legal sufficiency of the evidence, this

Court applies the following standard of review:

[T]he critical inquiryis whether the evidence shows beyond a reasonable doubt

that the accused committed the act charged, and that he did so under such

circumstances that every element of the offense existed. If, viewing the

evidence in the light most favorable to the State, any rational trier of fact could

have found, beyond a reasonable doubt, that the essential elements ofthe crime

existed, this Court will affirm the conviction. The jury determines the

credibility of witnesses and resolves conflicts in the evidence.

Barron v. State, 130 So. 3d 531, 536 (¶13) (Miss. Ct. App. 2013) (internal citations and

quotation marks omitted).

¶23. In discussing the crime of conspiracy, our caselaw has previously stated:

A conspiracy occurs when two or more persons conspire to commit a

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crime. Miss. Code Ann. § 97-1-1(a) (Rev. 2006). . . . The supreme court has

stated that:

For there to be a conspiracy, “there must be recognition on the

part of the conspirators that they are entering into a common

plan and knowingly intend to further its common purpose.” The

conspiracy agreement need not be formal or express, but may be

inferred from the circumstances, particularly by declarations,

acts, and conduct of the alleged conspirators. Furthermore, the

existence of a conspiracy, and a defendant’s membership in it,

may be proved entirely by circumstantial evidence.

Williams v. State, 984 So. 2d 989, 991-92 (¶14) (Miss. Ct. App. 2007) (quoting Franklin v.

State, 676 So. 2d 287, 288 (Miss. 1996)).

¶24. Upon review, we find the State presented sufficient evidence for a jury to determine

that Graham entered into a common plan to possess a controlled substance inside a

correctional facility. The testimony reflected that, on the evening of February 24, 2012,

officers allowed Graham to take a blanket with him to the jail yard because he complained

that he felt cold. Further testimony revealed that, as Officer Lawrence monitored the

inmates’ activityin the yard, she noticed suspicious behavior. Officer Lawrence testified that

she observed Graham and another inmate stand by the yard’s exterior door, bend down, and

retrieve items from underneath the door. Chief Deputy Hall, who inspected the door after

the incident, found a small opening that could allow someone to slip an itemthrough the door

near the locking mechanism.

¶25. After observing the two inmates’ suspicious behavior, Officer Lawrence alerted

Officer Morris and Officer James, who conducted a search of each inmate as he reentered

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the jail. The officers discovered three envelopes concealed on Hudson’s person. Graham,

who was the next inmate in line, attempted to pass his blanket to Hudson before the officers

searched him. Officer James testified that Graham even stated that Officer James should just

allow Graham to pass the blanket to Hudson. The officers refused to allow the exchange,

however, and they confiscated Graham’s blanket. 

¶26. Upon examining the blanket in Graham’s possession, the officers discovered a yellow

bag. Inside the yellow bag, the officers discovered more envelopes. When the officers

inspected the envelopes concealed on Hudson’s person and inside Graham’s blanket, they

found tobacco and a green leafy substance that looked like marijuana. Tests performed by

the Mississippi Crime Laboratory later confirmed that the green leafy substance in the

envelopes was, in fact, marijuana. Besides the testimony about the events of February 24,

2012, the State offered into evidence the contraband discovered during the search of Hudson

and Graham. In addition, the jury viewed the surveillance video the jail’s cameras captured

of the incident.

¶27. As previously stated, “the existence of a conspiracy, and a defendant’s membership

in it, may be proved entirely by circumstantial evidence.” Williams, 984 So. 2d at 991-92

(¶14) (quoting Franklin, 676 So. 2d at 288). Viewing the evidence in the record in the light

most favorable to the State, we find that a rational juror could have found Graham guilty of

conspiracy to possess a controlled substance inside a correctional facility. See Barron, 130

So. 3d at 536 (¶13). As a result, we find that this argument lacks merit.

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III. Whether Graham was illegally sentenced as a habitual offender.

¶28. In his final assignment of error, Graham challenges his sentence as a habitual

offender. Graham asserts no argument that he lacked notice of the State’s intent to seek an

enhanced sentence under section 99-19-81. Moreover, Graham raises no attack on the

validity of his amended indictment or the prior felony convictions supporting his habitualoffender status. Instead, Graham argues the State presented insufficient evidence during his

sentencing hearing to prove his habitual-offender status. Based on this argument, Graham

asserts that the circuit court erred by sentencing him as a habitual offender.

¶29. As the record reflects, Graham raised no objection during the pretrial hearing to the

State’s motion to amend his indictment to reflect his prior felony convictions and his

habitual-offender status. In addition, during his sentencing hearing, Graham failed to object

to his sentence as a habitual offender. Graham again failed to attack his sentence in his

motion for a JNOV or, in the alternative, a new trial. As our caselaw establishes, Graham’s

failure to raise an argument before the circuit court challenging his sentence procedurally

bars this issue from appellate review. See Conner v. State, 138 So. 3d 143, 150 (¶19) (Miss.

2014); Heidelberg v. State, 45 So. 3d 730, 732 (¶6) (Miss. Ct. App. 2010). “The supreme

court and this court have previously made clear that: ‘When an accused fails to object to the

habitual[-]offender issue during the sentencing phase, he is procedurally barred to do so [for]

the first time on appeal.’” Heidelberg, 45 So. 3d at 732 (¶6) (quoting Sims v. State, 775 So.

2d 1291, 1294 (¶16) (Miss. Ct. App. 2000)).

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¶30. Recognizing the procedural bar to his argument, Grahamasserts that this Court should

review the issue for plain error. “The plain-error doctrine provides for appellate review of

obvious errors not properly raised by the defendant at trial, which affect a defendant’s

‘fundamental, substantive rights.’” Id. at (¶7) (quoting Smith v. State, 986 So. 2d 290, 294

(¶10) (Miss. 2008)). To prove plain error, Graham must show “(1) an error at the trial level

(2) that resulted in a manifest miscarriage of justice.” Id. (citing Stephens v. State, 911 So.

2d 424, 432 (¶19) (Miss. 2005)).

¶31. “A defendant has a fundamental right of freedom from an illegal sentence.” Conner,

138 So. 3d at 150 (¶19). “Before a court may sentence a defendant under section 99-19-81,

the State must properly charge the accused as a habitual offender and ‘then prove the prior

offenses by competent evidence beyond a reasonable doubt.’” Heidelberg, 45 So. 3d at 733

(¶9) (quoting Joiner v. State, 32 So. 3d 542, 544 (¶12) (Miss. Ct. App. 2010)). In addition,

“[t]he accused must have ‘a reasonable opportunity to challenge the State’s proof.’” Id.

(quoting Joiner, 32 So. 3d at 544 (¶12)).

¶32. The record reflects that, prior to trial, the State moved to amend Graham’s indictment

to charge him as a habitual offender under section 99-19-81. During the pretrial hearing on

the State’s motion, the State reminded the circuit court that the court had amended Graham’s

indictment in a previous case to charge habitual-offender status. However, Graham was later

found not guilty of the crime charged in the previous case.

¶33. At the pretrial hearing in the present case, the State supported its motion to amend

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Graham’s indictment by offering certified copies of the sentencing orders related to

Graham’s prior felony convictions. Grahamraised no objection to the evidence or the State’s

motion, and the circuit court then admitted the prior sentencing orders into evidence. The

circuit court then granted the State’s motion to amend Graham’s indictment to reflect his

prior felony convictions and his habitual-offender status.

¶34. During sentencing, the record reflects that the circuit court referenced its pretrial

ruling to amend Graham’s indictment to reflect his prior felony convictions and habitualoffender status. The circuit court then sentenced Graham, as a habitual offender, to five

years in MDOC’s custody and fined Graham $2,000. As the record reflects, Graham raised

no objection to his sentence as a habitual offender either during the sentencing hearing or in

his posttrial motion for a JNOV or, in the alternative, a new trial.

¶35. In Heidelberg, this Court decided a case similar to the present matter. We

summarized the facts and issues in Heidelberg as follows:

Before trial, the State moved to amend the indictment to charge Heidelberg as

a habitual offender. The State provided certified copies of two sentencing

orders documenting Heidelberg’s prior felony convictions. And the circuit

judge ordered the indictment amended to reflect Heidelberg’s prior felony

convictions and habitual-offender status. After the jury returned a guilty

verdict, the State again advised the circuit judge that Heidelberg had two prior

felony convictions. The judge then sentenced Heidelberg as a habitual

offender to life in the custody of the [MDOC] without eligibility for parole or

probation. On appeal, Heidelberg claims the State’s failure to offer the

certified sentencing orders during the sentencing hearing requires reversal of

his sentence. Because Heidelberg raises this issue for the first time on appeal,

we find it procedurally barred. Further, since Heidelberg neither contests the

validity or sufficiency of his prior felony convictions supporting his enhanced

sentence nor otherwise points to any notice-based deficiencies in the amended

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charging document, we affirm.

Heidelberg, 45 So. 3d at 731 (¶1).

¶36. The record here reflects that, by the time of Graham’s sentencing hearing, no

uncertainty existed as to the State’s intention to seek an enhanced penalty under section 99-

19-81. Furthermore, our caselaw establishes that sentencing orders constitute competent

evidence of a defendant’s prior convictions. See Heidelberg, 45 So. 3d at 733 (¶14).

Although Graham possessed sufficient notice of the State’s intent to seek an enhanced

sentence, and although he possessed ample opportunity to challenge the State’s proof,

Graham failed to do so. In addition, like the defendant in Heidelberg, Graham “neither

contests the validity or sufficiency of his prior felony convictions supporting his enhanced

sentence nor otherwise points to any notice-based deficiencies in the amended charging

document[.]” Id. at 731 (¶1).

¶37. After reviewing the facts in the record and applicable caselaw, we find that no

manifest miscarriage of justice resulted from Graham’s sentence as a habitual offender. See

id. at 732 (¶7). As a result, we decline to review Graham’s claim of error as plain error, and

we find no merit to Graham’s argument that the circuit court imposed an illegal sentence

against him.

¶38. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF

CONVICTION OF CONSPIRACY AND SENTENCE, AS A HABITUAL

OFFENDER, OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI

DEPARTMENT OF CORRECTIONS AND TO PAY A FINE OF $2,000 IS

AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN

COUNTY.

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LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, JAMES AND WILSON, JJ.,

CONCUR. IRVING, P.J., AND FAIR, J., CONCUR IN PART AND IN THE RESULT

WITHOUT SEPARATE WRITTEN OPINION. GREENLEE, J., NOT

PARTICIPATING.

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