IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-KA-01592-COA LA’DARRIAN MCCRAY A/K/A LADARRIAN A. MCCRAY A/K/A LADARRIAN MCCRAY A/K/A D.J. APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 10/07/2016 TRIAL JUDGE: HON. W ILLIAM A. GOW AN JR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 07/17/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND TINDELL, JJ. LEE, C.J., FOR THE COURT: ¶1. Following a jury trial in t he Hinds County Circuit Court, La’Darrian “ D

. J.” McCray

was convict e d o f f

i r st-degree m

urder and attem

pted a ggravated assault. McCray was sentenced t o l if

e im prisonm ent f

or the m urder c onviction and t wenty y e ars f or the aggravated-assault conviction, with the sentences order e d t o r un concurrently in the Mississippi Departm e nt of C orre c t i o n s . I n t his direct appeal, McCray argues t hat he (1) received inef

f ective assistance of c ounsel, and (2) the trial court erred by deny ing his m otionf

or a judgm ent n otwithstanding the verdict (JNOV) with respect to t he a g g r a vated-assault conviction. Finding no reversible error, we af f i rm . FACTS AND PROCEDURAL HISTORY ¶2. In the early m orning hours of October 1 7, 2014, Glentez B rown was shot several tim es and k illed at his apartm ent com plex in Jackson, Mississippi. At trial, Brown’s w if e, Ashley , t e s t i f i e d that o n t he evening of the shooting, B rown w as driving his cousin, W esley Gray , hom e and then driving around their three-m onth-old inf ant s on, try i ng to calm h is cry ing and help h im f

all asleep. A s h l e y spoke to Brown on t he phone and told him to com e hom e becau s e t h e b a b y w as not f alling asleep. A f

ew m inutes later, A shley heard gunshots and

went and looked out t he window where she saw a m an wearing a gray hoodie and dark jeans walk past her window with a gun i n his right hand. She testif ied that s he was able to see his f ace clearly , but she did not recognize or know him

. Ashley saw th a t t h e couple’s vehicle

was present, i ndicating that Brown had returned with the baby

. She also saw a silver truck f leeing the apartm ents. ¶3. Ashley opened h er apartm ent d oor, which was located on the s econd f loor, and heard her son s c r e a m i ng. She looked down the stairs and s aw h er h usband and son ly ing on the ground covered in blood. Ashley w ent down to them , but went b ack upstairs t o the apartm ent
t o let h er daughter know h er f ather h ad been shot, and t o get her phone. S he went ba c k downstairs again to her husband and son and called 911. Ashl e y p i c k e d up her baby and checked Brown’s pulse and t hen re t u r n e d upstairs t o call f a m ily m em

b ers and f

riends. Ashley ’s neighbor, Latricia D ent, cam e out and of f ered to t ake t he baby f

or her, and so Dent

2took the baby back to her own apartm ent. ¶4. Ashley called Brown’s brother, Joseph, s everal t im es try ing to get in t ouch with him

. Af ter f ive calls, she f

inally reached him b y phone and told him that B rown was dead. Joseph, along with two of his f

riends, and his ex-girlf

r iend, Lezert “Pum

pkin” Edwards, arrived at the a partm ent. At som e point af ter Joseph and Edwards arri v e d , A shley was in the

am bulance while her son was being checked f or injuries. The baby

was not injured. ¶5. W h ile in t he am

bulance with t h e b a b y , A s h l e y s a w a ma n p a s s b y outside the

am bulance, and she asked E dwards, who was standing outside the doors of the am bulance, who the m an w as. Ashley testif ied that she asked who the m an was b ecause h e w as the sam e

ma n s h e had seen pass by her apartm ent window with a gun i m m ediately af ter hearin g gunshots. T he m an was no l onger wearing a hoodie and now h ad on glasses. Edwards replied that the m an w as “ D.J. ” ( McCray ). Ashley later learned that McCray was f riends with J o seph. A s h l e y a d mi t t ed both during the investigation and at trial t hat B rown was a drug dealer, but denied that he was f ighting or at o dds with any one. She also testif ied that she d id not im m ediately report McCray as the m an w ith a gun to the p olice at the scene f or f ear of her and her children’s saf ety

. ¶6. Dent, A shley ’s neighbor, also t estif ied at trial that she h e a r d g u n s h o t s a n d w ent outside w here she saw a m a n and a baby on the g round. S he went back i nside and awoke her brother, and he called 911. W hen Dent went back outside, she saw Ashley holding the baby and vom i ting. Ashley handed Dent the baby , and Dent took the baby back into her apartm ent and kept him f

or Ashley

. S he exam ined the baby and described t h a t h e w a s c o vered with

3blood and a white m e aty substance on his f

a ce, in his hair, m outh, and clothes, b ut that she

s aw no phy sical m arks or i njury to h is b ody

. She also testif ied that the b aby s c r e a me d continuou s l y f

rom the tim e she took him f rom Ashley t o the t im e he was exam i ned in the

am bulance—approxim ately

two-and-a-half

hours. ¶7. Edwards testif

ied that on the evening of the shooting she was at a local nightclub and later saw Joseph there too. E dwards testif ied that she had b roken up w ith Joseph earlier that d ay due to h is drug use and behavior. W ithin f ive to ten m inutes of seeing Joseph a t t h e nightclub, he told her that they h ad to leave because Brown had b een killed. E dwards rode separately to Ashley ’s apartm ent. She stated t hat when she a r rived, Joseph was already there, along with his f

riends, “Red” and McCray

. She stated that later o n a t the s cene, while she

was s t a n d i n g at the am

bulance with A shley , Ashley a sked her who the m an was near the

am bulance. Edwards corroborated that Ashley told h er he looked like t he m an she had seen earlier leaving the scene. Edwards stated that she told M cCray what Ashley had said and that McCray lef t the scene shortly

thereaf ter. ¶8. Detective J erm aine Magee with the Jackson Police Departm ent testif ied t hat he w a s dispatched to the s c ene i n the early m ornin g h o u r s w here he discovered Brown’s “lif eless

m ot i o n l e s s body ly ing on f loor on the ground n ear a stairwell.” H e stated that there were baby item s and shell c asings next to Brown. S hortly af ter receiving the call about the shooting, a call cam e in reporting a silver truck b urning in a nearby area. 1 Detective Magee

1 M cC r ay w as a lso in d icted f o r arso n , b u t th e trial co u rt g r an t ed th e d ef en s e’s m o tio n f o r a d irected v erd ict. T h e j u ry acco rd in g ly

retu rn ed a v e r d ict o f “n o t g u ilty ” w i th resp ect to th e arso n ch arg e. 4brief

ly interviewed Ashley at the scene, and she describe d w h a t had t ranspired, including seeing an individual running f rom the scene w ith a gun in his hand, b ut she did not report the identity of the m an. Detective Magee then s poke with A shley on the phone the n ext day and she told him she k

new who had killed Brown, but she would not reveal the i dentity over the phone because she was in f ear f or her lif e. They spoke again by p hone on October 19, 2013, and A s hley disclosed McCray ’s identity to D etective Magee. On October 20, 2013, af ter A s hley was able to m ove herself and her children out of her apartm ent, Detective Magee interviewed her in person, and she again gave an account of what happened on the night of the shooting. She was then given an opportunity to view a six-person photographic lineup where she selected the person she saw ru nning f rom the scene with a gun. The person she identif ied was McCray

. ¶9. D r . L i s a F u n t e , D e p u t y Chief Medical Exam i ner f or the S tate of

Missis s i p p i , conducted an autopsy on Brown. S he testif ied that Brown suf

f e red several gunshot wounds and died as a result. ¶10. Following a jury trial, McCray was convicted of f i rst-degree m

urder of Brown and of

attem pted aggravated assault of the baby . McCray now appeals.
DISCUSSION
I. Ineffective Assistance of Counsel ¶11. In his f

irst issue, McCray a r g u e s that he received inef f ective a ssistance o f

counsel deny ing his right to a f

air trial because h is attorney f ailed to request a circum stantial-evidence jury instruction. M c C r a y c o n tends the evidence presented by the State was purely

5circum stantial and the jury was not properly instructed. “A circum stantial-evidence case is

one where the State is ‘without a conf ession and wholly without e y e w i t n e s s e s to the
gravam en of t h e of

f ense charged.’” Carson v
. State , 12 5 S o . 3 d 104, 106 (¶5) (Miss. Ct. App. 2013) (quoting Garrett v. State , 921 So. 2d 2 88, 291 (¶17) (Miss. 2006)). “The term ‘gravam en’ is def

ined as the ‘substantial p oint o r essence of a claim , grievance, or

com plaint.’” I

d

. (quoting M

cInnis v. S

tate , 6 1 So. 3d 872, 876 (¶13) (Miss. 2 011)). McCray
argues that b ecause there was n o conf ession and n o e y ewitnesses t o Brown’s shooting, he

was e ntitled to a circum stantial-evidence jury i nstruction to instruct the jury that i t could not render a guilty v erdict unless t he State proved his guilt “bey ond a reasona b l e d oubt and to the exclusion o f every reasonable hy pothesis co n s i s t ent with innocence.” (Citing Keys v. State , 478 So. 2d 266, 267 (Miss. 1985)). ¶12. McCray also a r g u e s t h a t h i s d e f e n s e attorney rendered inef f ective assistance of counsel by withdrawing his m otion f or a new t rial. At trial, McCray ’s attorney f iled a m otion f or J NOV, or in the a lternative, a new trial. His attorney withdrew the m otion f or a new trial and stated the def

ense would proceed on the m otion f or a JNOV. McCray a r gues that the withdrawal of the m otion deprived the trial court the opportunity to review the weight of the evidence. “The contention t hat the verdict is a gainst the overwhelm ing weight of the evidence m

ust f irst be raised in the def

endant’s m otion f

or a new trial.” Hunter v. State , 187 So. 3d 6 74, 678 (¶13) (Miss. Ct. App. 2016) ( quoting Beckum v. State , 917 So. 2d 808, 813 (¶14) ( Miss. C t. App. 2005)). “A claim that t he v erdict was a g ainst t he weight of the evidence m

ust be f irst presented to the trial c ourt since that court i s best positioned to m ake

6an inf

orm ed d ecision as to s u c h i s s u e , having had the benef it of hearing the evidence f irst-hand.” Id

. (quoting C ollins v. State , 858 So. 2d 217, 2 18-19 (¶5) ( Miss. Ct. App. 2003)). ¶13. A claim f

o r inef f ective assistance of counsel s hould on l y b e a d d r e s sed on direct appeal where “(1) the r e c o r d af f irm a tively shows inef

f ectiveness of constitutional dim ensions, or (2) the parties stipulate that t he record is adequate to allow t he 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 Johnson v. State , 1 96 So. 3d 973, 9 75 (¶7) (Miss. C t. App. 2015)). The parties here do n ot stipulate that the record is adequate f

or the appellate court to m ake a f i nding on direct appeal. “Thus, the only proper inquiry is whether the record af f irm atively shows that [ the def endant] was denied ef

f ective assistance of counsel.” Id

. “W here t h e r e c o rd cannot support an inef f e ctive-assistanceof -counsel claim o n direct appeal, the appropriate conclusion is t o deny relief , preserving the def endant’s right to argue t he sam e issue t hrough a petition f or [ postconviction relief

].” Id

. (quoting Johnson , 196 So. 3d at 975 (¶8)). ¶14. In an inef

f ective-assistance-of

-counsel claim ,

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

icient, and (2) this def

iciency prejudiced h is def ense. The burden of proof rests with the def endant t o p r o v e both prongs. U n der Strickland , [ 2] t here is a s trong presum ption that counsel’s perf

orm ance f

alls within t h e range of r easonable prof essional assistance. To overcom e this p r e s um p tion, the d ef

endant m ust show that there is a reasonable probability that , b u t f o r t he 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 ,

2 S trickla n d

v. Wa sh in g to n , 4 6 6 U .S . 6 6 8 (1 9 8 4 ). 726 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 decisions 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 of circum stances to determ ine whether c ounsel’s ef

f orts w ere both def

icient and prejudicial.” Howell v. State , 163 So. 3d 240, 259 (¶49) (Miss. 2014) (quoting W illiams v. State , 73 So. 3d 1125, 1129 (¶12) (Miss. 2011)).
A. Circum stantial-Evidence Jury Instruction ¶15. M c C r a y a r g u e s t h a t this case was wholly circum stantial. The State argues t h a t McCray was not entitled to a circum stantial-evidence jury instruction b ecause there was both direct a nd circum stantial evidence. However, “ [ d ]irect evidence that a crim e w as com m itted without direct evidence t h a t t h e d ef endant com m i tted the crim e, is n ot enough to def eat a circum stantial evidence i nstruction.” Turner v. State , 945 So. 2d 992, 1002 (¶33) (Miss. Ct. App. 2007). Stated dif

f erently , “ direct evidence t hat avoids the i nstruction m ust directly and

not by inf erence im plicate the accused and n ot just show that there has b een a c rim e.” Price v. State , 749 So. 2d 1188, 1194 (¶16) (Miss. Ct. App. 1999). ¶16. The suprem e court has def ined circum stantial e v idence as “evidence w hich, without going directly to prove the existence o f a f act, g ives rise to a logical inf erence that such f

act does exist.” McInnis , 61 So. 3d at 875 (¶11). “A circum stantial evidence i nstruction m ust be g i ven w hen the prosecution i s without a co n f e s sion a nd without ey ewitnesses to the
gravam en of

the of f ense charged.” Turner , 945 So. 2d at 1002 (¶33).

8¶17. In the instant case there w as no d irect evidence—ey ewit n e s s o r c o nf ession—that McCray shot and killed Brown. The evidence presented placed McCray at the crim e scene with a gun im m e diately af ter Brown was shot—giving rise to the logical inf erence that McCray shot B rown. Thus, the case was wholly c ircum stantial. “If the o nly direct evidence in a hom icide case is testim o ny that a witness heard a gunshot and then saw the victim f all dead, t he case that proves the guilt of a s pecif ic def endant is s t ill wh o l ly circum stantial.”
Price , 749 So. 2d at 1193 (¶16) (citing Hooker v. State , 716 So. 2d 1104, 1107 (Miss. 1998)). “Failure to r equest a circum stantia l e v i d e n ce instruction, when the evidence against one’s client i s wholly circum stantial f a l l s b elow t he standard of reasonable prof essional

a ssistance.” T

urner , 945 So. 2d 992 at 1002 (¶33). Theref ore, McCray ’ s counsel’ s perf orm ance was def

icient f or f ailing t o request a circum s tantial jury instruction. McCray has m et this f

irst prong of Strickland , but our inquiry does not end here. ¶18. Under the s econd p r ong of Strickland , M cCray m ust show that def

i ciency prejudiced his d ef ense. Renfrow , 202 So. 3d at 636 (¶7) (quoting Maggitt , 2 6 So. 3d at 3 65 ( ¶12)). For prejudice to exist, there m ust be a “reasonable probability that, but f o r c o u n s e l ’s unprof essional errors, t he result of the proceeding would have been dif f erent.” I d

. That is, “the reviewing court m

ust d eterm ine whether t he insuf f iciency h a d a ‘ reasonable probability ’ of a f f ecting the outcom e of the case.” Carson v. State , 212 So. 3d 22, 27 (¶17) ( Miss. 2016) (citing Strickland , 466 U.S. at 695)). “A ‘reasonable probability ’ m eans that the conf idence of the court in the outcom e is underm ined, not that it is certain that the verdict would have been dif f erent.” I d

.

9¶19. McCray ’s counsel was de f i c i e n t i n f

a i l i n g t o request the circum stantial-evidence instruction t hat would h a ve increased the b urd e n o f p r oof on the State. However, we f ind that McCray

f ails to s how how his counsel’s f ailure to request the circum stantial-evidence jury instruction prejudiced his def ense so t hat “the result of the p roceeding w ould have been dif f erent.” “Circum stantial evidence in a c rim inal case is entitled to as m uch weight as any
ot h e r k i n d of e vidence, and, i n f act, ‘a conviction m ay be had on circum stantial evidence alone.’” W

illiams v. S t a t e , 122 So. 3d 105, 108-09 (¶17) (Miss. Ct. A pp. 2013) (quoting Tolbert v. State , 407 So. 2d 815, 820 (Miss. 1981)). ¶20. W e c annot s ay that the trial r e c o r d a f f i r ma t i v e l y s hows inef

f ective assistance of counsel of constitutional dim ensions. Accordingly , we decline to rule on the claim , in order to preserve his right to argue the issue in a PCR m otion.

B. Motion for a New Trial ¶21. M c C r a y a l s o a rgues that he received inef f ective assistance of counsel b ecause hi s def ense attorney w ithdrew t he m otion f or a new trial. “A m otion f o r a new trial challenges the weight o f t h e e v i d e n c e . ” Leonard v. State , 972 So. 2d 24, 30 (¶22) (Miss. Ct. App. 2008). A m otion f

or a new trial “m

ust be f irst presented to the trial court since that court is best positioned to m ake an in f orm ed decision as t o such issue, having h ad the benef it of hearing the e vidence f

irst-hand.” Allen v. State , 200 So. 3d 1100, 1 101 (¶3) (Miss. Ct. App. 2016). ¶22. A reading of the transcript shows that during the s entencing hearing, the trial judge asked McCray ’s d ef

ense counsel whether the m otion she w as arguing was “to be considered

1 0a m otion f

or new trial o r, in the alternative, f or a suspended sentence? ” McCray ’ s counsel indicated that s he would “withdraw the new trial f rom that m otion, and

. . . address it in the
JNOV.” She f

urther stated s he would “ stand by t he portion of that m otion” w hich ref erred

to a m otion f

or a suspended sentence. McCray ’s counsel subsequently f i l e d a m otion f

or “Motion For Judgm ent Non Obstante Verdicto ( JNOV) or, in the a l ternative, A N ew Trial” which addressed the weight of the evidence. As such, a m otion f or a new trial challenging the weight of the evidence was presented to the trial court f o r its consideration. This issue is without m erit.
II. Motion for JNOV ¶23. In his f

inal issue on appeal, McCra y a r g ues that the trial c ourt erred when it denied his m otion f

or a JNOV because the evidence was insuf f icient to s ustain a conv iction of aggravated assault. Specif ically , McCray

argues that there was no proof that he possessed the intent required f

or a ttem p t ed aggravated assault, a nd the trial court should have granted his m otion. ¶24. T h i s C o u r

t ’s s tandard of r eview f

or a trial c o urt’s grant or denial of a mo t i o n f o r JNOV i s de novo. Estate of G ardner v. Gardner , 228 So. 3d 921, 926 (¶19) ( Miss. Ct. App.
201 7 )

. A m otion f

or a JNOV challenges the legal suf f iciency of the evidence, and where there is substantial evidence to support the v erdict, we will af f irm the denial of a JNOV.
InTown Lessee Assoc. LLC v
. Howard , 67 So. 3d 711, 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 the exercise of im

partial j udgm ent m ight have reached dif f erent conclusions.” Bryant v.

1 1State , 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 hat is f avorable to t h e S t a t e , including all reasonable inf

e rences that m ay be drawn theref r om , a nd 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 respe ct 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 ind the ac c u s e d not guilty .” Id . (internal quotation m a rks om itted). ¶25. Mississippi Code Annotated section 97-3-7(2)(a)(ii) (Rev. 2014) states that a person is guilty of aggravated assault if he “ attem p ts t o c a u se or purposely or knowingly causes bodily injury to another with a dea d l y w e apon or other m eans likely to produce death or serious bodily harm

. . . .” “An attem pt to c om m it a crim e consists of three e lem ents: (1) an intent t o com m it a particular crim e, (2) a direct i nef f ectual act done t oward i ts c om m ission, and (3) the f

ailure to consum m a te its com m ission.” Craig v. State , 201 So. 3d 1108, 1111 (¶9) (Miss. Ct. App. 2016) (quoting Brooks v
. State , 18 So. 3 d 833, 841 (¶33) (Miss. 2009)).
“For a n attem

pt crim e, an intent to com m it t he particular crim e m ust be established.” Id

. at 1114 (¶18). “Intent m ay be established by inf erence f rom circum stantial evidence.” Parish

v. State , 203 So. 3d 7 18, 723 (¶19) (Miss. Ct. A p p. 2016). “Circum stantial evidence i n a

c r i minal c ase is entitled to a s m uch weight as a n y other kind of evidence, and, in f act , ‘ a conviction m ay be had on circum s tantial evidence alone.’” W illiams , 1 22 So. 3d at 108-09 (¶17) ( quoting Tolbert v. State , 407 So. 2 d 815, 820 (Miss. 1981)). W e note that “the jury

1 2m ay d

r aw any reasonable inf

erences f rom all the e vidence in the case.” Id. a t 108 (¶17) (quoting Anthony v. State , 23 So. 3d 611, 623 (¶53) (Miss. Ct. App. 2009)). ¶26. Having accepted as true all the evidence f avorable t o t h e S t a te, the evidence is not such that reasonable and f air-m inded jurors could only h a v e f ound McCray not guilty

. Rather, reasonable a nd f

air-m inded jurors could h ave i n fe r r e d fr o m the evidence that McCray shot Brown; that Brown w as holding his inf ant son when h e was shot m ultiple tim es; and that McCray thus possessed the intent to com m it aggravated assault, t hat is he attem pted to inf lict serious b odily injury with a deadly weapon—nam ely a g un, upon the baby

. B e c a u s e the

e v idence is not such that reasonable and f a ir m inded jurors could only f ind McCray n o t guilty , we af

f irm the trial court’s decision. The trial court did not err by deny ing McCray ’s

m otion f or a JNOV. ¶27. AFFIRMED.
IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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