IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-KA-01485-COA KACY WILLIAMS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 10/11/2016 TRIAL JUDGE: HON. MARGARET CAREY-MCCRAY COURT FROM W HICH APPEALED: LEFLORE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH DISTRICT ATTORNEY: W I LLIE DEW AYNE RICHARDSON NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 01/30/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., FAIR AND GREENLEE, JJ. LEE, C.J., FOR THE COURT:

PROCEDURAL HISTORY ¶1. Af ter a bench trial in the Lef lore County Circuit Court, Kacy W illiam s w as convicted of possess i o n o f a f

irearm by a convicted f

elon. W illiam s w as sentenced as a habitual of f ender u nder M ississippi C ode Annotated s ection 99-19-83 (Rev. 2015) to lif e without parole. W illiam s f

i led posttrial m otions, which the trial court denied. ¶2. W i lliam s now appeals. He is represented by the Of f ice of State Public Def

ender. His

a p p ellate attorney raised two i ssues on appeal: (1) W i lliam s’s s entence is disproportionate
to t h e c r i m e, and (2) the evidence was i nsuf f icient to support the guilty verdict. W illiam salso f

iled a pro se b r ief

, raising additional issues on a p peal: (3) d ef

ective indictm ent; (4) the trial court erred by g ranting the State’s m otion to am e nd the indictm ent; (5) the State f ailed
to disclose a witness; and (6) inef f ective assistance of counsel. Finding n o error, we af f irm

. FACTS ¶3. On Decem

ber 1 7, 2014, o f

f i c e r s f r o m t h e G reenwood Police Departm ent were dispatch e d to the scene of a reported shooting near McLaurin Street and Avenue F in Greenwood, Mississipp i

. At the scene of the shooting, of f icers secured t he a rea, noting several spent shell casings, a bicy cle, and bullet holes in nearby v e hicles. The victim , Alf onzo Hem

phill, h ad already been transported to the l ocal hospital. W hen interviewed by the police, Alf

onzo told of

f i cers that W illiam s had shot him twice in the stom ach. ¶4. W i lliam s and A lf

onzo’s sister, Diane Hem

phill, had been in a relationship a nd had a

son together. Their relationship deteriorated such that Diane, f earing f o r h erself a nd her son, obtained a dom e stic-vio l ence protection order on Decem ber 10, 2014. 1 This order, which

was s till in ef

f ect at t he tim e o f the shooting, prohibited W illiam s f rom c ontacting Diane, her child with W illiam s, her other two children, and Alf onzo. Alf onzo and Diane each testif ied that W illiam s had threatened them on dif f e r ent occasions with violence. Diane testif ied that
W i lliam s told her h e would “blow her brains out.” A lf onzo testif

ied that W illiam s had threatened to shoot him

. ¶5. Alf

onzo stated that on the da y o f t h e shooting, h e was waiting outside a local store

1 T estim o n y d u rin g trial in d icated th at th i s p ro tectiv e o rd er h ad b een p u t in p lace earlier a n d ren ew e d sev eral tim es. H o w ev er, th e o n ly o rd er in th e reco rd o n a p p eal is d ated D e cem b er 1 0 , 2 0 1 4

. 2when he saw W i lliam s and W illiam s’s f ather drive past in a truck. Due to W illiam s’s recent threats, Alf

onzo r etrieved his gun f

rom his ca r . W illiam s cam e back a f e w m inutes later, riding a bicy cle. Alf

onzo testif

i ed that W illiam s brandished a g un and then shot him twice, stating, “I told y ou I was going to get y ou.” A l f o n z o f i r ed back, but d id not hit W illiam s. W i lliam s t hen f

led the scene, l eaving the bicy cle behind. W illiam s was arrested m o nths later in G eorgia. W illiam s w as indic t e d f or attem pted m urder and possession of a f irearm by a convicted f

e lon. The charges were tried separately

. DISCUSSION
I. Sentence ¶6. In his f

irst issue, W illiam s argues that a lif e sentence f

or possession of

a f irearm by

a convicted f

elon is d isproportionate to the crim e and c onstitutes c ruel and un u s u a l punishm ent. W illiam s claim s that apply ing t he proportionality test f ound in S olem v. Helm , 463 U .S. 277, 290-91 (1983), necessitates a f inding that his sentence was disproportionate. However, Solem was overruled in Harmelin v. Michigan , 501 U.S. 957, 965 (1991), to the
extent that the proportionality test should only apply when a c o m parison of the c rim e to the
sentence l eads t o an inf

erence of “ gross disproportionality .” Case law has consistently held that sentences under the habitual-of f ender statute do not const i t u t e c r u el and unusual punishm ent. See Huntley v. State , 524 So. 2d 572, 575 (Miss. 1988); Jackson v. State , 483
S o . 2 d 1353, 1355 ( Miss. 1986); McKnight v. State , 187 S o. 3d 635, 653 (¶64) ( M i s s . C t

. App. 2 015); C

ummings v. S

tate , 2 9 So. 3 d 859, 861 (¶5) ( Miss. Ct. App. 2010). Here,
W i lliam s’s lif

e sentence com

plies with section 99-19-83, which provides:

3Every person convicted in this state of a f elony who s hall h ave b een c onvicted twice previously of any f el o n y o r f

ederal crim e upon charges separately brought and arising out of separate incidents at dif f erent tim es and who shall have been senten c ed to and served separate term s of one (1) y ear o r m ore, whether served concurrently or not, in any st a t e a nd/or f ederal penal institution, whether in this state or elsewhere, and where any one (1) of such f elonies shall h a ve been a crim e of v iolence, as d ef ined by S ection 97-3-2, shall be s entenced to l if

e i m prisonm ent, and such sentence s h all not be reduced or s u s p e n d e d nor shall such person be eligible f or parole, probation or any other f orm of early release f

rom actual phy sical custody within the D epartm ent of Corrections. ¶7. The S tate presented evidence s h o w i n g t h a t William s w as sentenced to and served
term s o f one y ear or mo r e i n a state penal institution f or two prior f

elony convictions—aggravated assault and sale of co c a i n e

— a n d o n e o f t h e s e felonies—aggravated assault—was a crim e of v iolence. See Miss. Code Ann. § 97-3-2(1)(c) ( Rev. 2014); Davis

v. State , 680 So. 2d 848, 851 ( M iss. 1996) (Aggravated assault is a crim e of violence within the m eaning of the habitual-of f e nder statute.). Thus, it is clear that W illiam s m et the requirem ents to be sentenced as a habitual of f ender to lif

e im prisonm ent without parole under s ecti o n 9 9

- 1 9

- 8 3. W i lliam s’s sentence d oes not lead to an inf erence of “gross disproportionality ” as is required to reach the S olem analy sis. This issue is without m erit.
II. Insufficient Evidence ¶8. In h is next issue, W i l l i a m s a r g u e s that the e vidence was insuf f icient to support the guilty verdict. W hen determ ining whether the State presented legally suf f icient evidence to support the v erdict, “[ t]his C ourt m ay o nly reverse ‘where one or m ore of the e l em ents of the of f ense charged is lacking t o such a degree that r easonable jurors c ould only have f ound the def endant not g u ilty .’” Robinson v. State , 794 So. 2d 293, 296 ( ¶12) (Miss. Ct. App. 2001)

4(quoting Reed v. State , 749 So. 2d 179, 180 (¶3) (Miss. C t

. A p p . 1 999)). “ [ A]ll evidence

supporting a guilty verdict is accepted as true, and the prosecution m ust be given the benef

it of all reasonable inf

erences that can be reasonably drawn f rom the evidence.” Jerninghan

v. State , 910 So. 2d 748, 751 (¶6) (Miss. Ct. App. 2005) (citation o m itted). I n a bench trial, the trial judge is charged w ith t he responsibility of weighing and considering t he conf licting evidence of t he witnesses a nd d eterm ining w h o s e testim ony s h ould be believed. Van Norman v. State , 114 So. 3d 799, 802 (¶16) (Miss. Ct. App. 2013). ¶9. Mississippi Code Annotated section 97-37-5(1) (Rev. 2014) states that “ [ i]t shall be unlawf ul f or any p erson who has been convicted of a f elony under the laws of this state, any other state, or of the United States to possess a ny f irearm

. . . .” 2 The State had to prove that
W i lliam s was a convicted f elon and that he possessed a f irearm

. W illiam s adm itted that he

was a convicted f

e lon. And Alf

onzo Hem

phill testif

ied that he saw W illiam s holding a gun. “[ W ]itness t estim o n y m ay be suf f icient to convict a def

endant of possession o f a weapon by

a f elon.

. . . This i s so even i f no weapon is recovered.” Edwards v
. State , 966 So. 2d 837,
839 (¶10) (Miss. Ct. App. 2007). W e f ind that there was suf

f icient evidence f

rom which the trial judge could f

ind all the elem ents of the c rim e existed bey ond a reasonable doubt. This issue is without m erit.
III. Defective Indictm ent
IV. Motion to Am end Indictm ent

2 S ectio n 9 7 -3 7 -5 (1 ) co n tain s ex cep tio n s f o r an y o n e w h o “h as r eceiv ed a p ard o n f o r su ch f elo n y , h as r eceiv ed a relief f ro m d is a b ility p u r su an t to S ectio n 9 2 5 (c) o f T itle 1 8 o f th e U n ited S tates C o d e, o r h as receiv ed a certif icate o f reh ab ilitatio n p u rsu a n t to su b sectio n (3 ) o f th is sectio n . ” N o n e o f

th ese ex cep tio n s ap p ly

to William s. 5¶10. Both of t hese issues are related, so we will address them together. W illiam s argues that his i ndictm ent was def ective f or incorrectly c harging him w ith possession of Alf onzo’s gun and that the trial court erred in granting the State’s m o tion to am end the indictm ent. ¶11. On the m orning of trial, the State m oved to am end the indictm ent in o rder to rem ove the language describing the ty p e o f g u n. The indictm ent stated that W i lliam s “did unlawf ully , w illf ully and f eloniously have or possess unlawf ull y a fi r e a

rm ; a SAR Arm s 9m m

sem i-autom atic handgun

. . . .” The gun described w as the one used by Alf onzo and turned

over to t he police af

ter the shooting. The g un used by W illiam s was never recovered. Once the State realized the e rror, i t m ov e d t o a m end the indictm ent to rem o ve the language describing the ty

p e of gun. W illiam s objected, stating that the c hange was substantive and
p rejudicial. The trial court granted the State’s m otion, f inding t hat t he c hange was one o f
f orm and that W illiam s was not unf airly surprised or prejudiced. ¶12. Am endm ents to indictm ents are allowed if they c ontain d e f e c ts of f orm and not of substance. Ivy v. State , 792 S o. 2 d 319, 321 (¶4) (Miss. C t. App. 2001). An indictm ent can be am ended “if it does not m aterially alter f acts which are t he essence of the of f e n se on the
f ace of the indictm ent a s it originally stood or m aterially alter a def ense to the indictm ent as it originally stood so a s to prejudice the def endant’s case.” Miller v. State , 740 So. 2d 858,
862 ( ¶13) (Miss. 1999) (citation om itted). In t his instance, “[ t]he language in section 97-37- 5(1) is c lear. Possession of any f i rearm is prohibited.” J

ones v
. State , 203 So. 3d 657, 660 (¶2) (Miss. Ct. App. 2016). “ [ T]he listing i n the indictm ent of the ty pe of f irearm possessed

. . . is n ot an elem e nt of the crim e . . . .” Estes v. State , 782 So. 2d 1244, 1254 (¶26) (Miss.

6Ct. App. 2 000). The State w a s r e q u ired t o prove that W illiam s possessed a gun, not a

specif ic ty pe of gun. Furtherm ore, W illiam s’s def ense was that h e did n ot possess a gun and did not shoot Alf

o nzo. W e cannot f

ind any error by the trial court in granting the m otion to

am end the indictm e nt. This issue is without m erit.
V. Failure to Disclose Witness ¶13. W i lliam s next contends that the S tate f a iled to d isclose that Diane w ould be called as

a witness. W illiam s never objected when D iane w a s called to testif y , nor did he raise the issue in posttrial m otions; t hus, this issue is waived. See Jones v. State , 915 So. 2d 511, 513 (¶7) ( Miss. Ct. App. 2005). Furtherm o re, nothing in the record indicates that the State f ailed to disclose Diane as a witness prior to trial. This issue is without m erit.
VI. Ineffective Assistance of Counsel ¶14. I n h i s f

i n a l i s s ue on appeal, W illiam s argues h is trial counsel was inef f ective “f o r fa i l i n g t o d i s continue c ross and request m istrial on insuf f icient testim ony showing s u bstantial contradiction of two s tate w itnesses.” On direct appeal, a claim f or inef f ective assistance of counsel, “should only be addressed when ‘(1) the record af f i rm atively shows inef

f e ctiveness of constitutional dim e nsions, or (2) the parties stipulate that the r ecord is adequate to allow the appellate c ourt t o m ake t he f inding without considerati o n o f the f indings o f f

act of the
t r i a l j udge.’” Reed v. State , 204 So. 3d 785, 789 (¶16) (Miss. Ct. App. 2016) (quo t i n g Johnson v. State , 196 So. 3d 973, 975 (¶7) (Miss. Ct. App. 2015)). Here, the p arties do not stipulate that the record is adequate f or the appellate c ourt to m a ke a f inding on direct appeal. “Thus, the only p roper inquiry is whether t he record af f irm atively shows that [ the def endant]

7was denied ef f ective assistance of counsel.” Id

. “W h ere the record cannot support an inef f ective-assistance-of

-counsel claim o n d i r e c t a

p p e a l , t h e a p p r o p r i a t e c o n c l u s i o n i s to deny relief , preserving the def

endant’s right to argue the sam e issue through a p etition f or [ postconviction relief

].” Id

. (quoting Johnson , 196 So. 3d at 975 (¶8)). ¶15. In an inef

f ective-assistance-of

-counsel claim ,

a def endant m ust show that: (1) his counsel’s p erf o rm a nce was def

icient, and (2) this def

iciency p rejudiced his def ense. The burden of proof r ests with the d ef endant to prove both prongs. Under Strickland , [3] t here is a s trong presum ption that counsel’s perf

orm ance f

al l s w ithin the range of r easonable prof essional assistance. To overcom e this presum ption, the d ef

en d a n t must show that there is a reasonable probability t h a t , b u t f or 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 , 26 So. 3d 363, 365 (¶12) ( M iss. Ct. App. 2009)). W e look “at the totality of circum stances
to determ i ne whether counsel’s e f f orts were both def

icient and prejudicial.” Howell v. State , 163 So. 3d 240, 259 (¶49) ( M i s s. 2014) (quoting W i lliams v
. State , 73 So. 3d 1125, 1129 (¶12) (Miss. 2011)). ¶16. W i lliam s contends t hat D iane’s and Alf onzo’s testim onies were contradictory ; thus, his attorney should have ended his cross-exam ination of Alf onzo and m oved f

or a m istrial.
It is possible that W illiam s ’s t r ial counsel continued his cross-exam ination in order to highlight the i n consistencies, hoping that t he trial j udge would resolve them i n W illiam s’s f avor. Regardless, t here is a presum ption tha t decisions m ade by def ense counsel are strategic, and this Court “will not second-guess counsel’s d ecisions that f a i r l y m ay be

3 S trickla n d

v. Wa sh in g to n , 4 6 6 U .S . 6 6 8 (1 9 8 4 ). 8characterized as strategic.” Shinn v. State , 174 So. 3d 961, 966 (¶12) ( Miss. Ct. App. 2015).

“W e presum e that decisions no t t o o bject to testim o ny were strategic if they f a irly can be characterized as such.” Id

. W illiam s has f ailed to show his trial counsel’s perf orm ance was def icient. This issue is without m erit. ¶17. AFFIRMED.
IRVING AND GRIFFIS, P.JJ., B ARNES, C ARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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