IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-KA-00832-COA SAMUEL TERRAIL YOUNG JR. APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 12/06/2016 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN SAMUEL TERRAIL YOUNG JR. (PRO SE) ATTORNEY FOR APPELLEE: BILLY L. GORE DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 09/04/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ. LEE, C.J., FOR THE COURT: ¶1. Sam

uel Terrail Young J r. was indicted by a M adison County grand jury of one count of sexual battery and one count of burglary

. Follo w i n g a j ury trial in the M adison County Circuit Court, the jury f

ound Young guilty of the sexual-battery charge and not guilty of the burglary charge. H e was sentenced as a v iolent habitual o f f e n der under Mississippi Code Annotated section 99-19-83 (Rev. 2015) to lif e i m p risonm ent w ithout eligibility f or parole in the custody of the Mississippi Departm ent of C o r r e ctions. T hrough his appointed appellate counsel, Young appeals his c onviction, arguing (1) he r e c e i v e d inef f ective assistance of counsel, and (2) the trial court erred in deny ing his m otion f or m istrial. Youngalso f

iled a pro s e brief asserting n um erous a dditional issues that we also address. Finding no error, we af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. On June 28, 2015, Michell e B r i c k n e r w a s d o i n g l a u n d r y a t h e r apartm ent in Ridgeland, M i s s i s s i p p i , w hen she was attacked and raped. She testif ied that she had been in the living room a nd laundry r o o m. She then walked into her bathroom and saw a m an standing in her bedroom

. Brickner stated she noticed the window and blinds were pulled up, which she had not done. W hen she saw the m an, she scream ed and tried to run, but he tackled her to the ground. Brickner stated the m an cove r e d her m outh and told h er not to

scream or he would kill her. ¶3. Brickner testif

ied that the m an proceeded to question h er regarding her a ge, ethnicity ,

m arital status, and how long she had lived in the apartm ent. She stated that at n o point did she get a good l ook at his f ace because he would n ot allow her to and c ontinued to threaten

to kill her if she looked at him

. The m an took of f his pants and told Brickner to p erf orm oral

sex on him

. A f

ew m inutes later, he told her to rem ove her clothes, a nd he r aped her. Brickner stated that the rape began in the bedroom , and a t som e p oint, the m an m oved her into the living room . H e penetrated her vaginally a n d then attem pted to penetrate her anally

. Brickner stated that she scream ed, and the m an again threatened to kill her. He penetrated her again vaginally u ntil h e e ventually ejaculated. Following the rape, the m a n f orced Brickner to bathe several t i me s. She testif ied that h e used her f

acial cleanser and used his hands and f

ingers to try and clean inside of her v agina. He also ref illed and em

ptied the tub

2several tim es. Bef ore he lef t her apartm ent, the m a n told B rickner i f she c alled the police he would kill her. ¶4. Brickner stated she got out of the tub about t en m inutes af ter the m an lef

t and called her boy f riend, who convinced her to call the p olice. W hen the police arrived, she described what had happened i n the apartm ent. She stated the only description she was able to give the police was that the a ttacker w as a taller black m ale. Af t er talking with the police, Brickner

went to Baptist Hospital in Jackson, Mississippi, where she h ad a s e x u a l

- assault kit perf orm ed by Dr. Ronnie Ali. Dr. Ali, an expert in em ergency m edicine, t estif ied at trial that he o bserved bruising on Brickner’s arm , legs, a nd buttocks, which was included in his report. The report also noted blood on Brickner’s underwear. D r. Ali also r eported swelling of the

rectum , indicating penetration, a s well a s s w elling and bruising of the vagina. During the

exam , Dr. Ali noted a signif icant am ount of sem en inside the vagina. Dr. Ali opined that the

com bination o f the swelli n g of the vagina and am ount of sem en i ndicated that the sexual encounter was “f

resh” or “acute.” ¶5. Investigator Leslie Owe n s w i t h t h e R i d g e l a n d Police Departm ent was called to Brickner’s apartm ent. She developed Young a s a suspect af t er DNA testing f

r om the sem en recovered f

rom Brickner’s sexual-assault exa m ma tched Young’s DNA prof ile stored in a database of convicted f

e lons. I nvestigator Owens also determ i ned that Y oung l ived in an apartm ent com

plex near Brickner’s apartm e nt and testif ied it would take approxim ately one

m inute on f

oot to travel between the two apartm ents. ¶6. Joseph Hef

lin, a DNA analy st with the Mississippi Forensics L a b oratory , testif

ied that

3he was able to develop a DNA prof ile f rom the vaginal swabs taken f r om Brickner’s sexualassault kit. The prof

ile was run a gainst DNA i n a database and r eturned a m atch to Young’s DNA. Hef

lin testif i ed that the likelihood the DNA would m atch another unrelated person’s DNA prof

ile was greater than one in ten billion. ¶7. Pie r r e P r y or Jr., a f riend of Young’s, testif

ied that he w as with Young on June 26, 2015, at Young’s apartm e nt. He stated the two were just talking. According to Pry or, Young asked where all the wom en were, and Pry or told Young to check “ b ack p a g e . c o m .” Pry or stated that Young used a com puter to go to the website and then asked Pry o r to leave f or a little w hile because a girl f rom the website was com ing by

. Pry o r waited outside in his car, and he testif

ied that he saw a Chinese wom an in her late twenties knock on Young’s door. (Brickner was of Asian descent.) He stated the wom an stay ed in the apartm ent around thirty

m inutes bef

ore she lef

t, seem ingly upset b ecause she slam m ed the door. P ry or stated he could not rem em

ber where Y oung’s a

partm ent was, whether or not it w a s on the f irst f loor

or u pstairs, and was play ing gam es on his phone when he saw the w om an. Brickner denied

ever using “backpage.com ” a n d s t a t ed she had n ever heard o f it prior to the investigation. She a lso denied using any other d a ting o r m eeting app to m e e t Young, and that she had never

m et him bef ore, and that the sexual encounter was not consensual. ¶8. Young’s cousin, Jasm i ne Haden, t e s t i f i e d t h a t Young was with her in Mem phis, Tennessee, w here she w as living on the weekend Brickner w as raped. Haden t estif ied that Young was at her house in M e mp h i s around 9 :00 p .m . on June 2 8, 2015, and they had a cookout with several others t h a t Sunday evening. Y o ung introduced evidence of two

4Facebook posts H aden m ade. The f irst was posted on June 27, 2015, stating, “y ay , m y cousin here. Me so happy [ ,]” and Haden had tagged Y oung in the post. The second was posted on June 2 9, 2 015, s tating, “ I m iss y o u already , cuz.” The r e w e r e no p osts m ade on June 28, 2015, the date of the sexual assault. ¶9. Richard Meeks testif ied that he saw Young i n M em phis, and the two had drinks at a club on B eale Street the evening of Saturday , June 27, 2 015. Meeks testif ied that af terwards,

t h e y went back to his house and play ed dom inoes. He also testif ied that the next day , Sunday , June 28, 2 015, they were at a f ish f ry at Haden’s house. Meeks testif i ed that Young was still at Haden’s hom e in Mem phis when he lef

t around 8:30 or 9:00 p.m

. ¶10. The jury f

ound Youn g g u i l t y o f s e x u a l b a ttery

. He now appeals h is conviction, arguing (1) he received inef f ective assis t a n c e of counsel, and (2) the trial court erred by deny ing his m o tion f

o r m istrial. DISCUSSION I. Ineffective-Assistance Claim ¶11. In his f

irst issue on appeal, Young ar g u e s t h at h e received inef f e ctive assistance of counsel because his counsel did not f ile a m otion to introduce e vidence of Brickner’s sexual history

. Young’s appellate counsel acknowledges that under Mississippi Rule of Evidence 412, evidence of sexual behavior or reputation of a sexual-assault vict i m i s g e nerally not adm issible. Young argues, however, that he m eets an exce p t i o n u n d e r R u le 4 12(b)(1)(A)-(B)

to prove that som e one other than the def endant was the source of s e m en or that the encounter

was consensual. Young argues he was unable to present evidence supporting his theory of

5def

ense because his counsel f ailed to f ollow the procedures required under Rule 412 by not f iling a wri t ten m otion describing the evidence at least f if teen day s b ef

ore trial. M.R.E. 412(c)(1)(A)-(B). ¶12. A c l aim f

or inef f ective assistance of counsel should only be addressed o n d i r e c t appeal where “(1) the record af f i r m a t i vely shows inef

f ectiveness of constitutional dim ensions, or (2) the parties stipulate that the record is adequate to allow the appellate court
to m ake the f

inding without consideration of the f indings of f

act of the trial judge.” Reed v. State , 204 So. 3d 785, 7 89 (¶16) (Miss. Ct. App. 2 016) (quoting Johns o n v. State , 196 So. 3d 973, 975 (¶7) (Miss. Ct. App. 2015)). Y oung asks this Court on d irect appeal t o consider the m erits of his inef

f ective-assistance claim , and the St a t e s t i p u lates that the record is adequate f

or this Court to m ake such a f inding. As such, we will consider the m erits of his claim

. ¶13. In an inef

f ective-assistance-of

-counsel claim ,

a def endant m ust s how that: (1) his counsel’s perf orm ance was def

icient, and (2) this def

iciency prejudiced his def ense. The burden of proof rests with the def e n d a n t to prove both prongs. U n der Strickland , [ 1] there is a s trong presum ption that counsel’s perf

orm ance f

alls within the range of r e a s onable prof essional assistance. To overcom e this p r e sum p tion, the d ef

endant m ust show that there is a reasonable p r o b a b i l i ty that, but f or the counsel’s unprof essional errors, the result of the proceeding would have been dif f erent. Renfrow v. State , 202 So. 3d 633, 636 (¶7) ( Miss. Ct. A pp. 2016) (quoting Maggitt v. State , 26 So. 3d 363, 365 (¶12) (Miss. Ct. App. 2009)). There is also a p resum ption that decisions

m ade by def

ense counsel are strategic, and this Court “will not second-guess counsel’s

1 S trickla n d

v. Wa sh in g to n , 4 6 6 U .S . 6 6 8 (1 9 8 4 ). 6decisions that f airly m ay be characterized as strategic.” S hinn v. State , 174 So. 3d 961, 966 (¶12) (Miss. Ct. App. 2015). Finally , we look “ at the totality o f circum stances to determ ine whether c ounsel’s ef

f orts were both def

icient and prejudicial.” Howell v. State , 163 So. 3d 240, 2 59 ( ¶49) ( Miss. 2014) (quoting W illiams v. State , 73 So. 3d 1125, 1129 (¶12) (Miss. 2011)). ¶14. The record dem onstrates that Young’s counsel f a iled to com

p ly with the procedures under Rule 412 because she was unaware of the requirem ents. The State f iled a m otion in lim ine on Septe mb e r 7 , 2 016, to exclude a ny evidence of B rickner’s past sexual behavior. At a m otions hearing on N ovem ber 21, 2016, the trial c ourt addressed the State’s m otion to exclude and asked Young’s counsel if she intended to introduce e vidence of Brickner’s past sexual behavior. Young’s c ounsel indicated that she intended to do so, but when questioned by the trial court about whether she had f iled the proper m otions, she stated she had not and that s he was unaware of the f if teen-day notice requirem ent. The trial court indicated that the evidence would l i k e l y b e inadm issible under the rule but g ave Young’s counsel the opportunity to provide som ething s howing why a n exception should apply

. The next day , on Novem ber 22, 2016, Young’s counsel f iled a m otion to of

f er evidence of

the victim ’s past sexual behavior. The m otion w as denied during a pretrial hearing the m orning of trial prior to voir dire. ¶15. Because the record clearly dem onstrates Y oung’s counsel’s f ailure to tim ely f

ile the notice and m otion to introduce evidence of Bric k n e r ’ s p ast sexual behavior w as due to oversight and unawareness b y her own adm ission, we cannot presum e the decision was

7strategic. H owever, o ur inquiry does not end there. Again, to dem onstrate a claim of

inef f ective assistance of cou n s e l , Y oung m u st show that his counsel’s perf orm ance was def icient, and that this def

iciency prejudiced h is d ef ense—that is, a reasonable probability that, but f or the def iciency , the result of the proceeding would have b een dif f erent. Renfrow , 202 So. 3d at 636 (¶7). ¶16. W e f

ind that Young has f

ailed to prove that but-f

or his counsel’s f

ailure to tim ely f

ile the f if teen-day notice a nd m otion, the result wou l d h a v e b e e n dif f erent. W e note that the adm ission or exclusion of evidence is within the sound discretion of the trial court. Bell v. Stevenson , 158 So. 3d 1229, 1237 (¶24) ( M iss. C t. App. 2015). Given that the adm ission of evidence is a m atte r o f discretion, there is no indication i n the record that had the m otion been tim ely f

iled, it would have been granted. Further, the trial court allowe d Y oung’s counsel to m ake a showing as to why the evidence should be adm itted notwithstanding her f ailure to com

ply w ith the Rule’s notice requirem ent. Rule 412 states that once the m otion is tim ely m ade and notice procedures are com plied with, a hearing m

ust be held to determ ine

t h e adm issibility of the evidence, as well as to d eterm ine whether the p robative v a l u e o f relevant e vidence outweighs the danger of u nf air prejudice. M.R.E. 412(c)(2). The record does not indicate that even if Y o u n g ’ s counsel t im ely f iled the m otion that the trial court would have f

ound the of

f er of proof suf

f icient f or a hearing; conducted a hearing; determ ined the e vidence to be adm i ssible; determ ined the evidence t o be m ore probative than prejudicial;

or adm itted the evidence. A s such, Y o u n g h a s f ailed to dem o nstrate “that there is a reasonable probability that, but f or the counsel’s un p r o f

e ssional errors, the result of the

8p r o c e e ding would have been dif f erent.” Renfrow , 202 So. 3d at 6 36 (¶7). This issue i s without m erit. II. Motion for Mistrial ¶17. Young also argues that the trial court erred b y f ailing t o grant his m otion f or m istrial af ter c ertain rem arks were m ade by the prosecutor during closing argum ents. Young ref ers
to the f ollowing statem ent m ade b y the State at the beginning of i ts closing statem ent: “In June o f 2002, I w ent on m y senior trip t o Mexico and I was kidnapped and held a t gunpoint by three m en —.” T he prosecutor’s statem ent was cut of f by Y oung’s counsel’s objection. Young argues that these com m ents by the prosecutor im properly bolster e d B r i ckner’s testim o ny by “ essentially [ telling] the jury that because the sam e thing h ad happened to the prosecutor, they could b e lieve Brickner’s testim ony and overlook the f

a ct that she was not able to give a phy s i cal description of the m an who raped her.” ¶18. Young’s counsel im m ediately o bjected to the s tatem ent and m oved f or m istrial. T he trial court held an on-the-record bench conf erence where the prosecutor explained that she

was going to f

inish h er statem ent by say ing that w hen s he went to the police s t a t ion, she could not g i v e a n y f

a c i a l identity of the m en, a nd that “just because y ou’re a victim of a crim e does not m ean that y ou can give a perf ect identif

icatio n o f y o u r attacker.” The trial

court o verruled the m otion f or m istrial but i nstructed the jury that certain things were not in evidence a nd should not be relied o n a s i n e vidence. The trial court then a dm onished the prosecutor to get to h er p o i n t a b o ut identif ication. The prosecutor continued, “W hat I’m try ing to s ay is, som etim es it’s hard to identif y people w hen y o u’re in a stressf ul situation.

9I t was hard f or m e and s om etim es it c an be hard f or p eople when they ’re asked to give a perf ect identif

ication of a person who is attacking them .” ¶19. “The deci s i o n t o g rant or n ot grant a m istrial lies within the sound discretion of the trial court and is reviewed f or abuse of discretion.” Straight v. State , 205 So. 3d 1089, 1092 (¶10) ( M iss. Ct. App. 2016). “If error ‘substantially a nd irreparably ’ prejudices the def enda n t ’ s c a s e , t h en the trial court m ust grant a m istrial.” Id

. “Any allegedly im proper prosecutorial com m ents m ust be considered i n context, considering the circum stances of the case, when deciding on their propriety .” Batiste v. State , 1 21 So. 3d 808, 834 (¶39) (Miss. 2013). “Even if the c om m ent was im proper, it w o u l d n ot constitute grounds f or reversal

u n less the natural and probable ef f ect of the prosecuting attorney ’s im proper arg u me n t created unjust prejudice against the accused resulting in a d ecision inf luenced by prejudice.” Id

. ( internal quotation m ark om itted). The Mississippi Suprem e C ourt “has h eld that a trial judge is best suited t o determ ine the prejudicial ef f e c t of an objectionable rem ark and is given considerable discretion i n deciding whether the rem ark is so prejudicial as t o m erit a

m istrial.” Ford v. State , 206 So. 3d 486, 491 ( ¶ 14) (Miss. 2016). “ Unless ‘serious and irreparable dam age’ r esults f r om a n im proper c om m ent, the j udge should ‘ adm onish the jury then and there to disregard the im proper com m ent.’” Id

. ¶20. W e do not f

ind that the trial court abused its discretion in deny ing Young’s m otion f or

m istrial based on the prosecutor’s rem arks. T he prosecutor’s rem arks d id n ot substantially and irreparably p rejudice Young’s case. The r em a r ks were im m ediately objected to and the trial judge im me d iately heard argum ent on the objection at a bench conf erence. Then, the

1 0trial judge im m e diately instructed the jury

that it should not rely

on things n ot in evidence, and a dvised the prosecutor that s h e should get to the point about identif ication and nothing else, which she did. This issue is without m e r it. III. Young’s Supplem ental Brief ¶21. In a ddition to the issues presented on appeal by Young’s a p pellate counsel, Young f iled a supplem ental brief

arguing several additional issues which we address in turn. A. Batson Challenge ¶22. Young asserts that the trial court erred when it allowed th e p r o s e c u t o r t o exclude jurors who did not have a college degree. Y oung a sserts the strikes violated Bat son , 2 “directly lim it[ ing] the num b er o f Af rican Am erican jurors able to serve on h is jury ” f or the “sole purpose of

discrim inating against jurors on the basis race.” ¶23. “The trial j udge acts a s f inder of f act when a Batson issue arises.” Allen v. State , 235 So. 3d 168, 171 (¶7) (Miss. C t. App. 2017). “W e will n ot overrule a trial court on a Batson ruling unless the r e c ord i ndicates that the ruling w a s c learly e rroneous o r against the overwhelm ing weight of

the evidence.” Id

. ¶24. The use of

“perem ptory strikes is ‘subject to the com m ands of the Equal Protection Clause’.

. . , [ which] p rohibits using perem ptory strikes t o engage i n racial discrim ination.” H.A.S. Elec. Contractors Inc. v. Hemphill Const. Co ., 232 So. 3d 117, 122-23 (¶13) (Miss. 2016) (quoting Batson v. Kentucky , 4 7 6 U.S. 79, 89 (1986)). “To saf eguard against racial discrim ination in jury s e lection, the United States Suprem e Court in Batson established a

2 B a tso n v. K

en t u cky , 4 7 6 U .S . 7 9 (1 9 8 6 ).

1 1three-step process.” Id . at 123 (¶14).

F i r s t , t he party objecting to the use of a p erem ptory s trike has the burden t o m ake a prim a f

a c ie case that race was the criterion f or the strike. Second, if the objecting party m akes such a showing, the burden shif ts to the striking party to state a race-neutral reason f or the strike. Third, af

ter the striking p arty of f ers i ts race-neutral explana t ion, the court m ust determ i ne if the objecting party m et i ts burden t o prove purposef ul d iscrim ination in the exercise of the perem ptory strike—that the stated reason f or the strike was m erely a pretext f or discrim ination. Id

. ¶25. The record dem onstrates that Young’s trial counsel m o ved f or a Batson challenge and alleged that the prosecutor u sed her strikes to exclude a disproportionate num b er of black jurors. D u r i ng the Batson hearing, Young’s c ounsel argued that the prosecutor s truck six black j urors and only struck two white jurors

. T h e trial court f ound that Young’s counsel

m ade a prim a f

acie showing that the strikes w e r e u t i lized b y the State in a racially discrim inative m anner. Accordingly , the trial court required the State t o state a race-neutral

reason f or the s trikes. The S tate explained that it struck any jurors that did not possess greater than a high s chool education arguing that because the case i nvolved s i gnif icant DNA evidence, that a higher level of education would be benef i cial to any juror. The trial court f ound that the education-level explanation was a valid, race-neutral r eason. Young’s counsel stated the reason w as m erely pretext f o r race but did n ot of

f er any f urther rebuttal. The trial

court noted on the record that it had “looked a t each of the [ twelve] jurors that were tendered and each of

[ twelve], the whites a nd blacks, had at least a college degree.” The trial court also noted that the e ducation-level rea s o n r e s u l ted i n the striking of three whites and f our blacks. The trial court f

ound that the strikes were not a pretext f or racial discrim ination and

1 2allowed the strikes to stand.

¶26. I n t h i s c a s e , t h e t r i a l court properly f ollowed the process set f orth in B atson to determ ine whether the strikes were used with purposef ul discrim inatory intent. This Court has previously af

f irm ed a trial court’s decision that education level is a valid, race-neutral

reason f or a j uror strike w here the Sta t e i n d i c a t ed its desire f o r “ a s m uch education as possible.” See Jackson v. State , 5 So. 3d 1144, 1148 (¶14) (Miss. Ct. App. 2008). “Given the great d ef

erence that we af

f ord the trial court’s Batson determ i nations, we do not disturb the trial court’s f

inding that there was no purposef ul discrim ination.” Id

. B. Sufficiency of the Evidence ¶27. Y o u n g also states that the trial court erred when it allowed his guilty verdict o n t h e sexual-battery charge to s tand, arguing it was i nconsistent with the j ury ’s verdict of acquittal

on t h e burglary charge. This issue was raised in a post-trial m otion f or a j udgm ent notwithstanding the verdict (JNOV) as well as m otion f o r a n ew trial. It n o w s e em s in Young’s supplem ental b rief that he attem pts to raise a s uf

f iciency -of

-the-evidence a rgum ent as to the sexual-battery

conviction. ¶28. T h i s C o u r t ’ s s t a n dard of review f or a trial court’s grant o r d enial of a m otion f o r JNOV is de novo. Estat e o f G a r d n e r v. Gardner , 228 So. 3d 921 ( ¶19) ( Miss. Ct. App. 2017). “A m o tion f

or JNOV challenges the legal suf f iciency of th e e v i d e nce, and where

t h e r e i s substantial evidence t o support the verdict, w e will af f i rm the denial of a JN O V

. ” InTown Lessee Assoc. L

LC v. Howard , 67 So. 3d 7 11, 718 (¶22) (Miss. 2011). “Substantial evidence is inf

orm ation of s u ch quality and weight that reasonable and f air-m inded jurors in

1 3the exercise of im partial j udgm ent m ight have reached dif f erent conclusions.” Bryant v. State , 151 So. 3 d 1 025, 1029 (¶13) (Miss. Ct. App. 2014) (quoting Daniels v. State , 107 So. 3d 961, 963 (¶10) (Miss. 2013)). “W hen reviewing a m otion f or a JNOV, the trial judge is required to accept a s true all of the evidence t h a t i s f a v o rable t o the State, including all reasonable inf

e rences that m ay b e drawn theref r om , and to disregard evidence f avorable to the d ef endant.” Id

. at (¶14) (internal quotation m ark om itted). “W e will r everse only where with respect to o ne or m ore of the elem ents o f the of f ense charged, the evidence so considered is such that reasonable and f air m inded jurors could only f i n d the accused not guilty .” Id . (internal quotation m a rks om itted). ¶29. “W hen a def

endant charged in a m

ulti-count indictm ent is convicted on som e counts while acquitted of others, the appellate inquiry is lim ited to a determ ination of whether the evidence is legally suf

f icient t o support the counts o n which a conviction is r eturned. W hat the jury did with the rem aining c ounts is im m aterial.” Grant v. State , 198 So. 3d 400, 406 (¶21) (Miss. Ct. App. 2016) (internal quotation m ark om itted). ¶30. Here, the jury f

ound Young guilty of sexual battery in violation of M ississippi Code Annotated section 97-3-95(1)(a) (Rev. 2014), w hich states “(1) A person is guilty of sexual battery if he or s he engages in sexual penetration with: (a) Another person without his or her consent[

. ]” ¶31. W i th regard to the legal suf f iciency o f the evidence, Brickner t estif ied that s he did not

consent to sexual contact with Young; the s exual-assault exam perf orm ed within hours af

ter
t h e e n c o u nter revealed bruising to Brickner’s arm s , legs, and buttocks, and bruising an d

1 4swelling to her v a gina and rectum , indicating penetration. The sexual- a s s a u l t exam also

revealed a large am ount of sem en, with the DNA analy sis i m plicating Young, with a chance of one i n ten billion that the DNA would m atch another u nrelated person. As s u ch, there is substantial evidence t o support the verdict o f guilty o n the sexual-battery count. W e af f irm the trial court’s decision to d e ny Y oung’s post-trial m otion f or a JNOV. This issue i s without

m erit. C. Illegal Sentence ¶32. Young argues that his sentence of lif e im prisonm ent is cruel and unusual punishm ent because it exceeds a “ l i f e s e ntence” b ased on a calculation o f his lif e expectancy , and is theref ore, an illegal sentence. He also argues that the State did not give proper notice of its intent to charge Young as a habitua l of f ender, and thus his habitual-of f e n der status is im p roper. ¶33. “Under Unif

orm Rule of Circuit and County Court Practice 7.09, an indictm ent m ay be am ended to charge the def endant as a h abitual of

f ender if the def

endant is a f

f orded a f air opportunity to p resent a def ense and is not unf

airly surprised.” L ofto n v. State , No. 2016-KA-00990-SCT, 2018 W L 1957312, at *10 (¶54) (Miss. Apr. 26, 2018). The record ref lects that the State f

iled a m otion to am end the indictm ent to charge Young as a habitual of f ender on June 17, 2016. The m otion was ar g u e d on Novem ber 21, 2016, and the State specif ically detailed two of

Young’s prior f

elony convictions that resulted in a sentence of

one y ear or m ore. Finally , t h e hearing to determ ine Young’s habitual-of f ender status was held on Decem

ber 5, 2016—af

ter his conviction. It cannot be said that Young was not given

1 5a f

air opportunity to prepare a nd present a def ense, or that h e was unf

airly surprised in regard to his habitual-of

f ender status. This issue is without m erit. ¶34. In regard to his c ruel-and-unusual-punishm ent argum ent, Young was senten c e d t o lif e im p risonm ent as a violent habitual of f e nder und e r s e c t i o n 99-19-83. During a p re-sentencing hearing, the State proved Young’s habitual of f ender status. “[ T] h e Mississippi Suprem e Court [ has] stated, this is not the f irst t im e that M ississippi’s h abitual of f ender statute has been c h allenged as cruel and unusual punishm ent. [ T he suprem e court] has consistently held that sentences u n d e r Mississippi Code Annotated section 99-19-83 d o not constitute cruel and unusual punishm ent.” Bonner v. State , 9 62 So. 2d 6 06, 611 (¶19) (Miss. C t. A pp. 2006) (quoting Huntley v. State , 524 So. 2d 572 (Miss. 1988)). This issue is without m erit.

D. Prayer in Courtroom ¶35. Young argues that he i s entitled to a m istrial based on the f act the trial judge opened

courtroom with a pray er p r ior to jury venire. T his was d one prior to trial and Young’s counsel m oved t o quash the jury panel based on the p ray er. The trial judge denied Young’s

m otion to quash. Young now appeals. ¶36. “A jury panel s h ould not be quashed unless the def endant ca n s h o w t h a t the f ailure

to c om p ly with the statute am ounts to actual f r aud, p rejudice, or such a f lagrant violation of duty a s to am ount to f

raud.” Cooper v. State , 200 So. 3d 1 065, 1072 ( ¶25) (Miss. Ct. App. 2016). H ere, Young does not sh o w h o w t h e pray er violated the jury -selection statute (Mississippi Code Annotated s ection 13-5-87 (Rev. 2 012)) o r resulted in f raud or prejudice. This issue is without m erit.

1 6¶37. AFFIRMED.

IRVING A ND GRIFFIS, P.JJ., BARNES, C ARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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