IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2012-KA-01963-COA COURTNEY R. LOGAN A/K/A COURTNEY LOGAN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/28/2012 TRIAL JUDGE: HON. W . ASHLEY HINES COURT FROM W HICH APPEALED: LEFLORE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: W I LLIE DEW AYNE RICHARDSON NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF FIVE COUNTS OF KIDNAPPING, ONE COUNT OF AIDING ESCAPE, AND ONE COUNT OF FELON IN POSSESSION OF A FIREARM, AND SENTENCED, AS A HABITUAL OFFENDER, TO LIFE ON EACH COUNT, ALL CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS W ITHOUT ELIGIBILITY FOR PAROLE OR PROBATION DISPOSITION: AFFIRMED - 08/18/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. LEE, C.J., FOR THE COURT: ¶1. This appeal proceeds f rom a j udgm e nt of c o n v i c t i o n f o l l o w ing a jury trial in the Circuit Court of Lef

lore County , where the jury f ound Courtney L ogan guilty on f ive countsof kidnapping, one count of aiding escape, and one count of f elon in p ossession of a f

irearm

. 1 Logan was sentenced, as a habitual of f ender p ursuant to Mississippi C ode Annotated section
99-19-83 (Supp. 2014), to s even consecutive lif e sentences without the possibility of parole. Finding no error, we af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. On June 25, 2009, transportation sergeants Chrissy Flowers, Perry J ones, and Leander Robertson transported two inm ates of t he Delta Correctional Facility f o r an ey e e xam ination

at T he E y e Station ( the Clinic) in Greenwood, Mississippi. Joseph L. J a c k s o n , one of the i n mates, was serving a lif e sentence in t he custody o f the M ississippi Depa r t me n t o f Corrections (MDOC) at the tim e. ¶3. The of

f icers and the tw o i n ma t e s a r r i v e d at the Clinic approxim ately ten m inutes bef ore the clinic opened at 8 a . m. The of f icers parked in t he back of the building and checked the perim eter of t h e b u i l d i ng. One of f icer entered t he clinic and checked with Ashley B owlin, an em

ploy ee of the Clinic, to see if it w a s o k a y t o bring in the inm ates. Of f icer R obertson then e scorted Jackson through the back door, and Of f icer Jones escorted the other inm a te. Of

f icer F lowers, arm ed with a silver s ervice-weapon revolver, f ollowed behin d t h e m a n d r em ained at the back door. Jackson was b ound in f ull restraints, which

1 A lth o u g h w e u se th e sin g u lar f o rm o f in d ictm en t t h ro u g h o u t th e o p in io n , w e n o te th at t h e reco rd in d icates L o g an w as ch arg ed v ia tw o in d ictm en ts d ated th e sam e d ay

– o n e in d ictm en t co n tain s th e f iv e k id n ap p in g ch arg e s , an d th e o th er in d ictm en t co n tain s th e aid in g -escap e ch arg e an d th e f elo n -in -p o ssessio n ch arg e.

2included handcuf f s, a waist chain, a black box, and l eg irons. Af ter a brief wait, Jackson was called f o r his exam . O f

f icer Robertson escorted J a ckson to an exam room , and he stood by the door to observe Jackson. ¶4. Mom ents l ater, C ourtney Logan, a cousin of Jackson, entered the C linic through the back door. Logan, carry ing a duf f el bag and arm e d with a black handgun, f ired a shot in the air and ordered e very o n e to get o n the f loor. Of f i cer Robertson lay

down and slid into one of the back exam room s. Of f i cer Flowers lay down near t h e b a c k door, and Of f icer Jones lay down in the waiting-room area. Bowlin slid into another room . Logan cam e around the corner and ordered Bowlin to open the door. Bowlin opened the door, and Logan held the
gun t o Bowlin’s f

a ce a nd told her he was going to b low h er head of f

. L ogan d em anded a cell phone f rom Bowlin, and she replied that she did not have one. L ogan walked back around the corner, continued to scream prof anities, and dem anded the key s. Logan threatened to kill Of f icer F lowers if she did not g ive him the key s. He then took Of f icer Flowers’s gun. Logan

cam e back around the corner, s tuck his gun in B owlin’s f a c e again, and told her not to m ove. Logan shot a second t im e in the a ir and again threatened to shoot Of f icer Flowers in the head if h e was not given the k ey s. Of f icer R o b e r t s o n c a me o ut of the back room and threw the key s o n the f

loor. Logan ordered Of

f icer Flowers to g et up a nd rem ove Jackson’s restraints and shackles, but Of

f icer Flowers was trem

b li n g s o mu c h t hat she w as u nable to unlock them . Jackson then told Of f icer Flowers to give him the key s so he could take them of f

. ¶5. Meanwhile, M a r g a r e t D a v i s C h e s t e r , t h e o f f ice m anager of the Clinic, arrived

3approxim a tely two or three m inutes af ter 8 a.m . Bef

ore Chester entered the Clinic, she heard what sounded like a gunshot. As s oon as Chester e n tered the back d oor, Logan put a gun in her f ace, y elled p rof

anities, and ordered her to “get in.” Chester, f ollowed by Logan, walked straight to the lab in the C linic a nd put down her purse and k ey s . Chester saw two of f icers and t h e o t h e r inm a te ly i ng on the f loor and J ackson in the m iddle of the room changing clothes with handcuf

f s d angling f

rom his arm and a duf

f l e bag beside him

. Logan then ordered Chester to get on the f l oor, and she com

plied. ¶6. Jackson f

inished changing and g rabbed the duf f le bag and key s. Jackson, dragging the res t r a ints m arked “CCA,” and Logan l ef t t he Clinic. Af

ter Jackson and Logan exited, Of f icer Robertson locked t he f ront doo r , a nd Chester c alled 911. Of f i cers f rom the Greenwood Police Departm ent r esponded to the C linic and f ound two spent n ine-m illim eter casings – one w as f

o und on top of a desk in t he Clinic and t he other on the f loor behind the desk. Three plastic zip ties, of ten used a s restraints, w ere f ound in t he Clinic’s rear parking lot. The of

f icers and th e e mp l o y ees of t he Clinic all identif ied L ogan at trial, and they all testif i ed that they

f elt they were not f

ree to leave during their encounter with Logan. ¶7. On June 25, 2009, Jackson and Logan, traveling in a rented b lack Dodge Ma g n u m ,

were stopped on I-40 just outside of Nashville, Tennessee, by Detective Norris Tarkington,

a detective o f the M etro Nashville Police Departm ent. Jackson and Logan were taken into custody

. A dark green duf f el bag with brown trim , a cell-phone c h a r ger, a black ny lon holster, zip ties, leg irons, and handcuf f s m a rked “CCA” were recovered f rom the vehicle.

4A loaded nine-m illim eter handgun was recovered on top of the console, two n ine-m illim eter

m agazines were retrieved f r om L ogan’s person, and t he s e rvice-weapon revolver t aken f rom Of f icer Flowers was also recovered. ¶8. Logan testif

ied i n his own def

ense at trial, essentially adm itting to having com m itted all the crim es, but claim ing duress. Logan testif ied that Jackson and Jackson’s f ather, Joseph Jackson Sr. (Jackson Sr.), devised a plan to e s cape during a doctor visit. Logan testif ied that Jackson Sr. brought him to Greenwood, M ississippi, in April 2 009, a n d showed him the Clinic and the Travel Inn M otel. Logan adm itted to f ollowing through with the crim es, but claim ed h i s intent was only t o f ollow the o rders of his u ncle, Jackson Sr., because he f elt at the t im e h e h ad no choice. Logan described Jackson Sr. a s ruthless and very persuasive. He testif i ed that Jackson Sr. knew that L o g a n ’ s w e akness was his children, and he f eared Jackson Sr. would do som ething to his children such as “kidnap, snatch up, any thing.” He also testif ied t h at whatever J ackson S r. wanted, Jackson Sr. w as going to get b y any m eans. However, Logan testif

ied that he d id not have a close relationship with his uncle. Logan also testif i ed t hat he did not know Jackson very well, because Jackson had been incarcerated the last ten or eleven y ears. Logan testif ied that Jackson threatened Logan’s child’s l if e when Jackson text m essaged a p icture of Logan’s six-m onth-old son and told him , “[ Logan’s] son looked nice.” To L ogan, this sublim inally m e a nt that “[ Jackson] has ey es on m y children.” Logan testif

ied that “there were no other threats.” ¶9. Logan testif

i ed t hat on the June 24, 2009, h e and his m other rented the black Dodge

5Magnum

. Logan then went t o Jackson Sr.’s house in Louisville, Kentucky , w here Jackson

Sr. g ave him a duf

f le bag containing a cell p hone and c harger, zip ties, clothes f or Jackson,

a nine-m illim eter handgun and clips, and a GPS device to guide him to Greenwood. Logan claim ed that he asked Jackson Sr. if he would leave him out o f it a nd have som eone else go through with it, but Jackson Sr. told Logan no. Logan drove f rom L ouisville, to Greenwood, Mississippi, and checked into the Travel Inn Motel at a pproxim ately 3:30 a.m . on June 25,
2009. Jackson Sr. called Logan later t hat m orning f or a wake-up call. Shortly af ter, Jackson called Logan to tell him

he was leaving the jail f

o r the Clinic. ¶10. Logan testif

ied t hat af ter he picked up J ackson at the Clinic, his next destination was

to d rop him of

f w ith J ackson Sr. and get a way a s f a r a s possible. L ogan t estif ied t hat he did

not resist police w hen he was stopped in Nashville, Tennessee. H owever, a m otion in lim ine

was f i led and g ranted on t he issue of resisting arrest in Nashville b ecause a p olice of f icer was shot d uring the stop. Logan adm itted he lied to investigators f rom the N ashville Police Departm ent and Greenwood Police Departm ent when he initially told them that he picked
up Jackson in Mem

phis, T ennessee. Logan a lso said he picked up Jackson i n Nashville, and that he had never been to Mississippi. ¶11. On March 15, 2010, L ogan was indicted f or aiding escape of an MDOC inm ate and possession of a f

irearm b y a c o nvicted f

elon. On the sam e date, the grand jury indicted Logan on f

ive counts o f kidnapping. On Septemb e r 2 5 , 2 0 1 2, t he State m oved to charge Logan a s a habitual of

f ender, and on N ovem

ber 2 6, 2012, the trial court entered an order

6am ending the indictm ent to charge L ogan as a v i o l ent habitual o f f ender under Unif

orm Circuit and County

Court Rule 7.09 and section 99-19-83. ¶12. On Novem

ber 27- 2 8 , 2 0 1 2 , L o g a n w a s t r i e d a n d c o n v icted on f ive counts of kidnapping, one count of aiding escape, and one count of f elon in possession of a

f irearm

. The trial court sentenced Logan to seven consecutive lif e sentences without the possibility of parole or probation. Logan f i l e d a m otion f

or a j udgm ent n otwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the trial court denied. ¶13. Logan appeals his conviction, raising t he f ollowing iss u e s : ( 1 ) t h e e v i d e nce was insuf f icient to support his convictions f or kidnapping; (2) the trial court erred i n s e ntencing him as a habitual of

f ender; (3) t he trial court erred in ref using j ury instruction D-15; and (4) he received inef

f ective assistance of

counsel.
DISCUSSION
I. INSUFFICIENT EVIDENCE ¶14. Logan argues that the eviden c e w a s i n s u f f i c i e n t t o s u pport his convictions f or kidnapping. L o g a n a r g ues that t he conf inem e nt of the of

f icers and t he em

ploy ees of the Clinic was i ncident to the a ct of aiding Jackson’s escape and was of no greater degree than
necessary to accom

plish Jackson’s escape. Logan claim s he did n ot i ntend to hurt or kidnap
any one and that he f

ired t wo s h ots, held the o f f icers and em

ploy ees of t he Clinic a t g unpoint, and th r e a t ened to kill them i f they did not com ply in order to “m aintain control.” Alternatively , Logan argues t hat the verdict is against the overwhelm ing weight of the

7evidence under the sam e reasoning . W e will address both argum ents.

a. Sufficiency of the Evidence ¶15. I n r e v i e w i n g the suf f iciency of the evidence, “the critical i nquiry is whet h e r t h e evidence shows bey ond a reasonable doubt that accused com m itted the act charged, and that he did so under such circum s tances that every elem e n t of the of f e n se existed; a nd where the evidence f

ails to m eet this test it is insuf f icient t o support a conviction.” Bush v. State , 895
So. 2d 836, 843 (¶16) (Miss. 2 005). “However, this inquiry does n ot r equire a court to ask itself whether i t believes that t he evidence at the trial established guilt bey ond a r easonable doubt.” Id. “Instead, the relevant question is w hether, af ter viewing t he evidence in the light

m ost f avorable t o the prose c u t i o n , a n y rational trier of f act could h ave f

ound t he essential elem ents of

the crim e bey ond a reasonable doubt.” Id

. ¶16. Mississippi Code An n o t a t ed section 97-3-53 (Rev. 2014) provides that kidnapping

occurs when “[ a]ny person who, without lawf ul au t h o r i t y a n d with or without intent to secretly conf

ine, shall f

o rcibly seize and conf

ine any other p erson, or shall inveigle or kidnap
any other person with intent to cause s uch person to be c onf ined or i m

prisoned against his or her will[ .]” ¶17. In Cuevas v
. S t a t e , 3 3 8 S o . 2 d 1 2 3 6 , 1238 (Miss. 1976), the Suprem e Court of Mississippi stated: [ T ] h e p resent trend by m ost authorities is not the distance of asportation i n kidnapping, but rather the f act of aspo r t a t i on as it relates t o the unlawf ul activit y . If f

orcible detention or m ovem ent is m e r ely incidental t o a lesser crim e t han kidnapping, such conf i n em e nt or m ovem ent is i nsuf f icient to be
8m olded into the greater crim e of kidnapping. However, the court explained:
An illustration m ight well be a strong-arm ed robbery where the victim is detained and perhaps m oved a f ew f eet while being relieved of h is wallet. The detention and m ovem ent would not support k idnapping[ ,] albeit with f orce and unlawf u l. On the other hand, if the c o nf inem ent or asportation be not m erely incidental to a lesser crim e, but a constituent part of the greater crim e, the f act of conf inem ent or asportation is suf f icient to s upport k i d n apping without regard to distance m oved or tim e of conf inem ent. Id. ¶18. In Cuevas , a prisoner escaped f rom the county

jail. Id. at 1237. During the escape, the prisoner entered an autom obile agency a n d took one of t he em ploy ees at gunpoint f

rom
t h e s e r v i ce departm ent of the dealership to t he parts departm ent. Id

. The prisoner wa s convicted of kidnapping. Id

. On ap p e a l , h e argued that the c harge of kidnapping was not suf f i ciently proven. Id. The s u p rem e court determ ined that the prisoner’s “purpose in seizing and detaining [ the em ploy ee] w as obviously to m ake good his escape. ” I d

. The Court held: The detention was not m erely i ncidental to another and l esser crim e. I t was a necessary constituent of the crim e. The c onf inem ent and m o v e me n t of [ the em ploy ee] by f

o rce f r o m the service entra n c e of t he building to t he parts departm ent of t he b u ilding was s uf f iciently proved to s u

pport Cuevas’[ s] conviction. Id. at 1238-39. ¶19. H e r e , L o gan’s purpose in seizing and detaining the o f f icers and em

ploy e e s o f t h e Clinic was to e f

f ectuate Jackson’s escape as well a s his own. Logan held all f i ve individuals

9at g unpoint. L ogan f i red his gun twice in the a ir and took Of f icer Flowers’s weapon during the seizure. Logan threatened to k ill Of f icer Flowers at least two tim es a nd an em ploy ee of the Clinic at least once. Moreover, Logan ordered Of f icer Flowers at gunpoint to get up and

rem ove Jackson’s restraints. Logan also seized an em ploy ee when she entered the Clinic, walked her th r o u g h a t g u n point, a nd o rdered her to lie on the g round along with the other detained em

ploy ee and t he of

f icers. The detention a n d m ovem ent of the of f icers and the

em ploy e es was not m erely incidental to another and lesser crim e o f aiding an escape. The seizure of the em

ploy ees and of

f icers at gunpoint was a necessary constituent o f the crim e. W e f ind m ore than suf

f icient evidence to support Logan’s kidnapping convictions. ¶20. W e also rejected a sim ilar argum ent to Logan’s in Salter v. State , 876 So. 2d 412, 415 (¶7) (Miss. Ct. App. 2003). In that case, Salter was convicted o f burglary , arm ed robbery , and kidnapping. Id. at 414 (¶2). Salter b roke into a bank and w aited f or bank em

p loy ees to arrive. Id. Once the bank em ploy e es ar r i v e d , S alter, arm e d with a handgun, held the

em ploy e es at gunpoint, f

orced them into t h e b a nk vault, a n d m a de them lie down on the
f loor. I d. One em

ploy e e thought she was about t o be killed when Salter m ade her lie f ace down on the f

loor. Id. a t 415 (¶7). Salter closed the bank-vault door and lef t. Id. According

to Salter’s own testim ony , h e put b ank em ploy ees in the vault so that he could ef f ectuate his
escape. Id

. W e f

ram e d the i ssue in S

alter as f ollows: “The question at b ar, t heref ore, is whether Salter’s action s w e r e i ncidental to a lesser crim e or were a constituent part of the greater crim e.” Id . W e held that the trial court did not err in accepting Salter’s guilty plea

1 0in regard to the charge of kidnapping. Id. at (¶9). Likewise, t here was m o re than suf f icient evidence to support Logan’s kidnapping convicti o n s . L ogan detained the of f icers and

em ploy e es at gunpoint so that he could ef f ectuate both his and Jackson’s escape. b. Overwhelming W

eight of the Evidence ¶21. “W hen reviewing a denial of a m otion f or a new trial based o n a n o b j e c tion to the weight of the evidence, w e will only disturb a verdict when it i s s o c ontrary to the

o verwhelm ing weight of t he evidence that to a llow i t to stand w ould sancti o n a n unconscionable injustice.” Bush , 895 So. 2d at 844 (¶18). “The m otion , however, is addressed to the discretion of the court, which s hould be e x e r c i s e d with caution, and the
power to grant a new trial should b e invoked only i n exceptional cases in w hich the evidence preponderates heavily against the verdict.” Id. “However, the e vidence should be weighed in the light m o st f

avorable to the verdict.” Id. ¶22. L o gan advances the s am e argum ent in support of this assignm ent of error, which is that the kidnapping is m erely incidental to the aiding escape. W e d isagree and f ind that the verdict is not against the overwhelm i ng weight of the evidence.
II. HABITUAL-OFFENDER STATUS ¶23. At the outset, we note that L ogan did not object to his habitual-of f ender status at trial or in his JNOV m otion; theref ore, it is deem ed waived. See Heidelberg v. State , 4 5 So. 3d 730, 732 (¶6) (Miss. Ct. App. 2010) (citing Sims v. State , 775 So. 2d 1291, 1294 (¶16) (Miss.
Ct. App. 2000)) (“The suprem e court and this court h ave previously m ade clear that: ‘W hen

1 1an accused f ails to object to the habitual[ -]of f ender issue during the sentencing phase, he is procedurally b a r red to do s o t he f irst tim e on appeal.’”). W aiver notwithstanding, we will brief ly address this issue. ¶24. Logan argues that the indictm ent charging h im as a habitual of f e nder f a iled to allege his prior convictions with particularity under Rule 11.03 of the Unif orm Rules of Circuit and County Court. L ogan also contends that the evidence w as insuf f icient to prove his habitualof f ender status bey o nd a reasonable d oubt. S pecif ically , Logan argues that the State f ailed

to establish that Logan’s Kentucky convictions constituted two prior f elonies under section
99-19-83.

a. Sufficient Evidence to Establish Habitual-Offender Status ¶25. The trial court f

ound that Logan had “previously been convicted o f two p rior f elonies separately brought and arising o u t of separate incidents at dif f erent t im es and ha[ d] been sentenced to and served separate term s of one y e ar or m ore in a state or f ederal institution, with one of

said f e lonies being a crim e of violence.” At trial, t he State introduced Exhibit
S-17 to prove that Logan ha d a prior f elony c onviction i n order to establish the charge of possession o f

a weapon by

a convicted f

elon. Exhibit S-17 contained a certif ied copy o f a judgm ent of conviction f rom Kentucky , which provided that on August 8 , 2 0 0 3, Logan pleaded guilty to robbery in t he second degree under Kentucky Revised Statutes Annotated section 515.020 in cause num ber 03-CR-0638. Exhibit S-17 also provided that Logan pleaded guilty to f

leeing or evading police in t he f irst d egr e e u n d e r K entucky Revised

1 2Statutes Annotated s ection 520.095 and assault in t he f ourth degree u nder K entucky Revised
Statutes A nnotated s e ction 508.030 in cause num ber 03-CR-0610. The f

leeing or evadingpolice charge and assault arose f r om an incident separate f

rom the robbery

. ¶26. Logan a

r g u e s t h a t t h e f l eeing/evading-police charge does not constitute a f elony under Mississippi law; t heref

ore, t h a t conviction is insuf f i cient to support his habitual-of f ender

status. ¶27. Logan was indicte d f o r the of f ense of f leeing or evading police i n the f irst degree when he, as a pedestrian, with t he i n t e n t t o f lee or elude, k

nowingly and/or wantonly disobey ed an order to stop, given by a person recognized to be a peace of f icer, and he was
f leeing im m ediately af

ter com m itting a n a c t o f dom e stic violence. Kentucky Revised Statutes Annotated section 520.095 provides in pertinent part: (1) A person is guilty

of f leeing or evading police in the f irst degree:

. . . . (b) W hen, as a p edestri a n , a n d with intent to elude or f lee, the person knowingly or wantonly disobey s an order to s top, given by a person recognized to be a peace o f f icer, and a t l east one (1) of the f ollowing conditions exists:
1. The person is f

leeing im m ediately af

ter com m itting an act of dom estic violence as def i ned in KRS 403.720 . . . .

. . . . (2) Fleeing or evading police in the f irst degree is a Class D f

elony

. A f actual sum m ary of t he e vents that led to L ogan f leeing/evading police is described in the
1 3pen pack. A police o f f icer was dispatched to a vehicle in ref erence to Logan, who was seated in the passenger seat, assaulting a f em ale, who was seated in t he d river’s seat. As the police of f icer approached a vehicle o ccupied by Logan a n d t he assault victim , L oga n e x i t e d the vehicle and ran f

rom the of

f icer despite being instructed to stop. A chase e nsued, and the of f icer eventually detained Logan. Logan pled guilty to t his charge and was convicted f or f leeing or evading police under K e ntucky Revised Statutes Annotated section 520.095(1)(b)(1). ¶28. Section 99-19-83 provides: Every person c onvicted in this state of a f elony who shall have been c onvicted twice previously o f any felony or f e d eral crim e upon charges separately brought and arising out of separate incidents at dif f erent t im es a nd who shall have been sentenced t o and served separate term s of one (1) y ear o r m ore, whether served concurre n t l y or not, i n any state and/or federal penal institution , whether i n 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 def ined by Section 9 7 -3-2, shall be s entenced to l if

e i m prisonm ent, and such sentence shall not be reduced or suspended n or shall su c h p e r s o n 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. (Em phasis a dded )

. I n 2 0 0 3 , L o g an was sentenced to and served one or m ore y ears i n a Kentucky penal institution f or the crim e of f

leeing or evading police, w hich is, undisputedly ,

a f elony in Kentucky

. The plain language o f s ection 99-19-83 does not require that the prior convictions m

ust also be f

elonies in Missis s i p pi; r ather, t hey m ust b e f elonies in the state where the c onvicti o n occurred. Logan’s Kentucky conviction and s e ntence f or f elony
f leeing, coupled with a prior conviction and sentence of m ore than one y ear f or robbery , also

1 4in Kentucky , are suf f icient to support his habitual-of f ender status. ¶29. Rely ing o n H

olland v. State , 587 So. 2d 8 4 8 ( M i ss. 1991), and caselaw f rom other jurisdictions, the dissent concludes that Logan’ s a c t ions that led to a conviction f or f elony
f l eeing in Kentucky would not be a f elony in Mississippi; theref ore, t he c onviction cannot support Logan’s habitual-of f ender status. However, we f ind the d issent’s r eliance on these authorities is m isplaced. ¶30. F i r s t , H

o l l a n d is a d eath-penalty case that was reversed and rem anded f or resentencing d u e to juror m isconduct. Id

. a t 873. Addressing another issue raised by Holland , th e Mississippi Suprem e C o u r t f urther explained, in dicta, that “this Court f eels com pelled to place the State o n notice regarding a m atter relating to t h e e v i d entiary suf f iciency of the aggravating circum stance” of Holland’s prior conviction in Texas f or t he rape of a child and whether it involved the use or threat of violence such that it could be relied u pon as an aggravating circum s tance f or the d eath p enalty

. Id. a t 874. As the d issent notes, the suprem e
court w ent on to say t h a t “ t h i s Court d oes not look to how that state characterizes the question of whether the crim e was one of violence[ ;] r ather, t he analy sis m u st b e done under Mississippi law.” I

d. A s we stated a

b o v e , t h e se s tatem ents are dicta and do not have a binding ef

f ect. See Taylor v. State , 122 So. 3d 707, 714-15 (¶20) (Miss. 2013). Theref ore, because H

olland d iscusses a p rior conviction i n the c ontext o f an aggravating circum stance f or a sentence o f death a nd not the habitual-of f e nder s t atute, and the d iscussion regarding the prior conviction is dicta, we f ind that Holland

is inapplicable to the present case.

1 5¶31. Further, as explained above, Mississippi’s habitual-of f e nder s tatute is unam

biguous; thus, we do not see the need to consider other j urisdictions’ analy ses of their o wn habitualof f ender statutes as the dissent would suggest. This issue is without m erit. b. Insufficient Indictment ¶32. Logan also argues that the trial court’s order am ending his indictm e n t to charge him

as a habitual of

f e nder does not com

ply with Rule 11.03. Rule 11.03(1) provides in pertinent part: “ The indictm ent m

ust allege with particularity the n ature or description of the of f ense constituting th e p revious convictions, the state or f ederal jurisdiction of any previous conviction, a nd the d a te o f judgm ent.” However, the record is clear that L o gan’s indictm ent,

as am ended, contains the necessary inf orm ation to s u

pport Logan’s status as a hab itual of f ender. Logan’s a m e nded indictm ent described that, in Kentucky , he had been c onvicted of f elony f leeing on August 8 , 2003, and he was sentenced to and served at least one y ear in prison f or that conviction. Logan was also convicted of robbery in Kentucky on August 8, 2003, and was senten c ed to and served m ore than one y ear in prison. The S tate attached

num erous docum ents to its m otion to am end Logan’s i ndictm ent, including: his indictm ents describing the crim es with detail, his guilty -plea d ocum ents, his j u d g m e n t s o f conviction, and

a K entucky Court o f Appeals opinion af f irm ing his robbery conviction. Logan did n ot object

to t he introduction of these docum ents and did n o t dispute the contents of the docum ents. Logan also did n ot object to the suf f iciency of h is am ended indictm ent until the present appeal.

1 6¶33. Again, we not e t h a t t h e dissent’s reliance on its cited authorities is m isplaced. The

dissent r elies on Heidelberg , 45 So. 3d 730, f or the prem ise that t he f

ailure to attach certif

ied orders of p r i o r c o nvictions to an order am e n ding a n indictm ent is f a tal. However, our holding in Heidelberg be t t e r s u pports our f inding that Logan’s indictm ent w as suf f icient.
W e stated: [ T]here were no uncertainties when H eidelberg s tood f or sentencing. P rior to trial, the S t a t e a t tached certif ied copies of Heidelberg’s two prior f e lony sentencing orders to its m otion t o am e nd his indictm ent. The circuit judge then ordered the indictm e nt am ended to ref lect Heidelberg’s prior convictions and habitual-of

f ender status. The c ircuit court also i ncorporated an attachm ent listing the certif

i ed s entencing o rders into t h e a m ended indictm e nt. Thus, Heidelberg clearly had advance n o t i c e of the S tate' s intent to seek the enhanced sentence. Id

. a t 733 (¶13). This is alm ost precisely what occurred i n t his case. P rior to trial, the State

m oved to am end L ogan’s i ndictm ent to ref lect his habitual-of

f ender status. A s was detailed above, the State attached a variety of docum ents to support the m otion. W hile t he trial court did not expressly incorporate the docum ents i n its o rder granting the State’s m otion to am end Logan’s indictm ent, the o rder did contain t he f ollowing language r ef

erencing the m otion to

am end: “The p rior f

elony convictions and the sentences im posed, as alleged in s aid [ m ]otion

to [ a]m end, if proven bey ond a reasonable doubt, would subject [ Logan] to s e ntencing pursuant to [ section] 99-19-83

. . . . ” The c r u x o f our holding i n Heidelberg was that “Heidelberg had suf

f i cient n otice and am

ple opportunity to challenge the qualif y ing

c o nvictions but chose n ot to d o so.” Id

. at 734 ( ¶16). Based upon the S tat e ’ s mo t i o n t o

am end and the attached docum ents, plus the trial court’s order granting the m otion in which
1 7it ref

erences the m otion and a ttached docum ents, Logan had s u f f i cient notice of the convictions the State was rely ing on and an opportunity to challenge these convi c t ions. Logan, like Heidelberg, did not challenge these prior convictions. ¶34. Because L ogan’s a m e nd e d i n d i c t m e n t p r o v i d e d a l l t

h e n e c e s sary i nf

orm ation pursuant to Rule 11.03, this issue is without m e rit.

c. Competent Evidence to Prove Habitual-Offender Status ¶35. Logan argues that the S tate f ailed to m eet its burden of proving his habitual-of f ender

status because the pen packs were never f o rm ally introduced into e vidence at the s e ntencing hearing. L ogan’s argum e nt is procedurally barred because he did n ot raise it bef ore the trial

court. Conner v. State , 138 S o. 3d 143, 150 (¶19) (Miss. 2014). However, we will address the m e rits regardless of the proced u r a l b a r. “The best evidence of a c onviction is the judgm ent of conviction.” Grayer v. State , 120 So. 3d 964, 969 (¶18) (Miss. 2 013). In Grayer , the court held: In this case, although the State inf orm ed the circuit court that it had certif ied copies of Gray er’s prior convictions and had provided c opies to Gray er and his counsel, it f

ailed to place the certif

ied copies i nto the r ecord or t o o f f er any evidence to support Gray er’s habitual-of f ender s tatus, other than a recitation of h is prior f

e lony convictions. Sim

ply put, the State f

ailed to prove Gray e r’s prior convictions by

com petent evidence. Theref

ore, we f ind that the circuit court com m itted e rror, rising to the level of plain error, by sentencing Gray er as a habitual of

f ender without evidence of his prior convictions. Id. at (¶19). ¶36. The suprem e court v acated Gray er’ s s e n t e n c e a n d h a b i t u a l

- o f f ender status, and

rem anded the c ase to the trial court f o r r e s e n tencing as a nonhabitual of f ender. Id. at 970
1 8(¶22).

¶37. W e do not have that problem in this case. Here, at the sentencing hearing, the State

r e quested that the trial court consider evidence of Logan’s prior c onvictions that had b e e n attached to t he State’s m otion and also introduced into evidence at the g uilt phase of trial, including: (1) his judgm e nts of c onviction f or a f elony

- f leeing-f rom -a-police-of

f icer count,

a mi s d e me a nor-assault count, and a robbery count, and (2) a n opinion f r om the Kentucky
Court of Appeals a f

f irm ing Logan’s convictions. T he State called G reenwood Police Of f icer Toby M eredith to testif

y that the identif

y ing inf orm ation in Logan’s Kentucky records was the sam e as the identif

y ing inf orm ation that the Greenwood Police Departm en t had f or Logan. The State adm itted Exhibits S-32 and S-33, without objection. Exhibits S-32 and
S-33 c onsisted of a “resident record card” f rom the Kentucky Departm ent of Corrections and

a n otarized certif

icate f rom Robert Belen, the Assis t a n t B r a n ch Manager of Of f ender
Inf orm ation Services at the Kentucky Departm ent o f Corrections, stating the resident record card was a true and correct copy of the original records f rom his of

f ice. The resident record card identif

ied the robbery and f

leeing/evading-police c o nvictions along with their separate

cause num

bers and sentences. Logan did not object t o the introduction of the resident card

or to the oral ref

erence to the convictions that were previously introduced into evidence at the trial phase. ¶38. B a sed on the evidence that was presented and adm i tted regar d i n g L o g a n ’ s p r i o r convictions, we f

ind that the State produced s uf f icient evidence to support Logan’s habitual1 9of

f ender status. This issue is without m erit.
III. JURY INSTRUCTION D-15 ¶39. Logan argues that the jury instruction concerning the def ense of duress or necessity was im properly ref

u sed. Instruction D-15 read:
In this case, t he d ef

endant[ ,] Courtney Logan[ ,] contends that the acts charged in the indictm ents[ ,] n am ely Aiding Escape a nd Kidnapping[ ,] were justif ied due to duress or necessity

. “Legal jus t i f

i cation” m eans that a n otherwise crim inal act m ay not be punished, if that act was necessary in order to avoid a signif icantly greater evil. The f our elem ents of

Mr. Logan’s necessity d ef ense are: 1. That t he threat or threats to Mr. Logan, and the f ear which t he threats caused, were im m ediate, and involved death or serious bodily injury ; 2. That Mr. Logan’s f ear was welled-grounded [ sic]. This m eans that Mr. Logan had a good-f

aith b elief in the im m i n e nce and s e verity of the threat, and that belief

m ust also have been objectively reasonable.
3. That there was n o r e asonable a nd legal o pportunity to a v oid or escape the threatened harm ; and
4. That Mr. Logan ma d e a b o na f ide good-f

aith ef f ort to surrender to authorities af

ter he reached a position of saf ety

. The State m

ust prove a ll elem ents of the crim es of A i d i n g Escape and Kidnapping bey ond a reasonable doubt. This m eans that y ou m ay not f ind Mr. Logan guil t y o f the crim es charged unless the S tate proves bey ond a r e a s o n a b le doubt that a t least one of t he elem ents of h is claim ed def ense o f necessity is not present. ¶40. Logan asserts that he only participated in Jackson’s escape because a t hreat was m ade

on his child. The trial court ref used the i nstruction, f

inding that a t hreat of harm to a third
p erson does not support a duress def e nse. The trial c o urt also d eterm ined that any t h r e a t
2 0m ade on Logan’s child was not im m inent. M oreover, the trial court f o und that Logan had

m any opportunities to avoid the results. ¶41. “Regarding j u r y i n s t r u c t i o n s , the trial court possesses c onsiderable discretion. ”
Y oung v. Guild , 7 So. 3 d 251, 2 59 (¶23) (Miss. 2009). “A party i s e n t i t l e d t o a j u ry in s t r uction i f it c oncerns a genuine issue o f m aterial f act and there is credible evidence to support the instruction.” Id. “ W hile a p arty is entitled t o j ury instructions that pr e s e n t h i s theory of the c ase, this e ntitlem ent is lim ited; the trial court m ay ref use an instruction which incorrectly states the law, is cove r e d f airly elsewhere in the instructions, or i s without
f oundation in the evidence.” Id

. ¶42. For a def

endant to show that h e had “an objective need to c om m it a crim e excusable by the def ense of necessity , he m

ust prove three essential elem ents: (1) the act charged was done to prevent a signif

ican t e v i l ; ( 2 ) there was no adequate alternative; and (3) the harm caused was not disproportionate to the harm avoided.” Stod g h i l l v
. State , 892 So. 2d 236, 238 (¶8) (Miss. 2005). ¶43. We f

ind no error in the trial court exercising its considerable d iscretion i n r e f u s i n g jury instruction D-15. ¶44. The necessity -def

e nse theory is without f

oundation in the evidence that was presented

at trial. Logan’s testim ony was unclear as t o whether Jackson or J ackson Sr. m a d e a threat

to harm Logan’s child. At trial, Logan testif ied that Jackson texted a picture o f Logan’s child with t he m essag e t h a t t h e c hild “looked nice.” Logan described this m essage a s a

2 1“sublim inal threat.” Certainly any potential threat by Jackson was not objectively r easonable

because he was in the custody of MDOC at the tim e the alleged threat was m ade. ¶45. Even though Logan testif ied t hat his uncle, Jackson Sr., was ruthless, we do not f ind
any objectively reasonable f oundation in the evidence in support of Jackson Sr.’s threats to harm Logan’s child if Logan did not go through with the escape p l a n . N o t h r eat m ade by Jackson Sr. was identif

ied at trial. No evidence was presented showing that Logan’s child

was in any specif

ic danger. In addition, Logan testif ied that he did not know J ackson or Jackson Sr. very well. Moreover, we do not f ind a n y e v i d e n ce that Logan was without an adequate alternative to c om m itting t he crim es. L ogan drove several hours a l o n e f rom Kentuck y t o M i s s i ssippi to carry out this crim e w i thout attem pting to contact authorities.
A c c ordingly , we f

ind that the trial court did not a b use its d iscretion in ref us i n g t h e instruction.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL ¶46. Logan argues h e r e c e i v e d i n ef f ective assistance of counsel because counsel f ailed and/or ref used to investigate or c hallenge his extradition f rom T ennessee, and f

ailed to assert

or p reserve h is right to a speedy trial. However, L ogan’s brief acknowledges that this issue

cannot be adequately ad d r e s s e d without f urther outside-the-record developm ent of the surrounding f

acts. Logan raised this issue on direct appeal f or the purpose of

preserving it
f or pursuit in postconviction proceedings. This Court “only acts upon m atters contained in the of f icial r ecord and n o t upon assertions in brief s.” Colenburg v. S

tate , 735 So. 2d 1099,

2 21102 (¶6) (Miss. Ct. App. 199 9 )

. The State concedes that this issue is not ripe f or appeal because the record is not suf f i c i e n t to address it. W e theref o re dism i ss L ogan’s claim of inef f ective ass i s t a n c e o f counsel without prejudice so that Logan can r aise the issue in a petition f or postconviction relief

. Reed v. State , 118 So. 3d 157, 160 (¶12) (Miss. 2013).
CONCLUSION ¶47. W e a f

f irm t he j udgm ent of conviction of f ive counts of k i d n a p p i n g , o n e count of aiding escape, a nd one c ount of po s s e s s i o n o f a f i rearm b y a convicted f

elon, and the sentence of lif

e im p risonm ent on each count. ¶48. T H E J U D G MENT OF THE LEFLORE COUNTY C IR C U I T C O U R T O F CONVICTION OF FIVE C OUNTS OF K IDNAPPING, O NE COUNT OF AIDING ESCAPE , AND ONE COUNT OF POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF L I F E O N EACH COUNT, AS A HABITUAL OFFENDER, WITH THE S ENTENCES TO RUN CONSECUTIVELY ALL IN THE C USTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR P R O B A TION, IS A F FIRMED. ALL COSTS OF THIS A PPEAL ARE ASSESSED TO L EFL O R E COUNTY. IRVING AND GRIFFIS, P.JJ., BARNES, I S HEE, CARLTON, M AX WELL, FAIR AND WILSON, J J ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. JAMES, J., CONCURRING IN PART AND DISSENTING IN PART: ¶49. I respectf

u l l y d i s s e n t f

rom the m ajority ’s opinion on the issue of Logan’s habitualof fe n d e r s tatus. The m ajority is c orrect that Logan’s argum ent is procedurally barred because he did not raise the argum ent bef o re the trial court. Conner v. State , 138 S o. 3 d 143, 150 (¶19) (Miss. 2014). Ho w e v er, a def endant h as a f

undam e ntal right of f

reedom f rom an

2 3illegal sentence, and this Court m ay em ploy plain-error review if a def endant' s substantive or f u ndam ental rights are af

f ected. Id. at 150-51 (¶19). ¶50. Logan argues that the State f ailed to p rove L ogan’s habitual-of f ender status bey ond

a r easonable doubt because Logan’s prior conviction f or f l e e i n g or evading police in violation of Kentucky Revised Statutes Annotated section 520.095 did not c onstitute a prior
f elony u nder Mississippi Code Annotated section 99-19-83 (Supp. 2014). I agree. Although Logan’s prior conviction in Kentuc k y f or f leeing or evading police as a pedestrian is classif ied as a f elony u nder Kentucky l aw, it would n ot constitute a f elony under Mississippi law, which the m ajority acknowledges. For that reason, I w ould f ind that the trial court erred by sentencing Logan as a habitual of f ender. ¶51. Section 520.095 provides in pertinent part: (1) A person is guilty

of f leeing or evading police in the f irst degree:

. . . . (b) W hen, as a p edestri a n , a n d with intent to elude or f lee, the person knowingly or wantonly disobey s an order to s top, given by a person recognized to be a peace o f f icer, and a t l east one (1) of the f ollowing conditions exists:
1. The person is f

leeing im m ediately af

ter com m itting an act of dom estic violence as def i ned in KRS 403.720 . . . .

. . . . (2) Fleeing or evading police in the f irst degree is a Class D f

elony

. Ky . Rev. Stat. Ann. § 530.095.
2 4¶52. H o w e v e r , u n d e r M i s s i s s i p p i l aw, resisting o r obstructing a lawf ul arres t a s a pedestrian would f

all under M ississippi Code Annotated section 97-9-73 (Rev. 2 014), which is a m i sdem eanor. Specif ically , section 97-9-73 provides:
It shall be unlawf

ul f or any person to obstruct or resist by f orce, or violence, or threats, or in a ny other m anner, h i s l awf ul arrest or the lawf

ul arrest of another person by any state, local or f ederal law e nf

orcem ent of

f icer, a n d any person or persons so doing shall be guilty o f a m isdem eanor, a n d upon conviction thereof

, shall be punished by a f

i ne of not m ore than Five Hundred Dollars ($500.00), o r by im prisonm ent in the c ounty jail not m o re than six (6) m onths, or both. Id

. ¶53. The Suprem e Court’s decision in Holland v. State , 587 So. 2 d 848, 874 (Miss. 1991), is i nstructive on t h e i s s u e of whether a prior conviction f rom a sister state qualif

ies as a predicate f

or an aggravating circum s t a n c e u n d er this state’s statutes. Specif ically , the question in Holland was whether a prior f elony occurring in a sister state constituted a crim e of violence under Mississippi law. The Holland c ourt held:
W h ere as here the conviction occurred in a sister s tate, this Court does not look to h ow that s tate c haracterizes the question of whether t he crim e was one of violence[ ;] r a ther, the analy sis m ust be d one under Mississippi law. For a conviction to qualif

y as predicate f

or an a ggravating circum stance under this state' s statutes, the conviction f rom t he sister state m

ust h a v e been acquired under a s tatute which has a s an e lem ent the use or t hreat of violence against the person or, by necessity , m ust involve conduct t hat i s inherently violent or presents a serious potential risk of phy sical violence to another. ¶54. Other j u risdictions provide guid a n c e o n t h i s precise issue. The Alabam a Court of Crim inal A p p e als has held: “W hen the state seeks to use a def endant' s out-of

-state f elony convictions to e nhance his sent e n ce under [ Alabam a' s Habitual Felony Of f ender Act], the
2 5state m

u st p rove that the conduct f or which t he def

endant was p reviously c o n v i c t ed constituted a f

elony in A labam a when it was com m itted.” R.J.S. v. State , 905 So. 2d 26, 29 (Ala. Crim

. App. 2004); see also State v. Heath , 7 P .3d 92, 93 (Ariz. 2000) ("[ T]he State m ay qualif y an o ut-of

-state conviction as an e n hancing prior f e lony by e stablishing that the def endant was convicted under a p articular subsection of a f oreign statute, if that subsection

encom passes only conduct that would constitute a f elony in Arizona."). L ikewise, in Justice

v. Hedrick , 350 S.E.2d 5 65, 5 68 (W

. Va. 1986), the W e st Virginia Suprem e Court of Appeals held: “[ W ]hethe r t h e c o n v i ction of a crim e outside o f W est Virginia m ay b e t he basis f or application of

[ W est Virginia’s Habitual Crim inal Statute] depends upon the classif ication of that crim e in t his State.” In support of its d ecision, the court noted: “Other j urisdictions, in apply ing recidivist s t atutes, hav e d e t e r mined that out-of -state f elony convictions f

or of f enses which d o n ot constitute f elonies pursuant to their respective state statutes m ay not be used f or enhancem ent purposes.” Id

. (citing F letcher v. State , 409 A.2d 1254, 1255 (Del. 1979); People v. McIntire , 151 N.W .2d 187, 141 (M i c h

. Ct. App. 1967); People v. Carpenteur , 236 N.E.2d 850, 851 (N.Y. 1968). ¶55. Apply ing the sam e reasoning of Holland and f inding the a

bove c a s e s f

r o m o ther juris d i c t i o n s persuasive, I would hold that when determ ining w hether a prior conviction constitutes a f

elony f or purposes o f the habitual-of f e n der statute, the analy sis m ust be done under Mississippi law. Because one of the prior convictions used to m e e t t he requirem ents of section 99-19-83 would not constitute a f elony conviction u nder Mississippi law, Logan

2 6was im

properly sentenced and should be resentenced as a nonhabitual of f ender. ¶56. Although n ot n ecessary to m y decision, I will address Logan’s rem aining argum ents

r egarding his h abitual-of

f ender s tatus. Logan also argues that the trial court' s order a m e n d i n g his indictm ents to charge him as a habitual of f ender d oes not com

ply with Unif

orm Rule of Circuit and County Court 11.03. Rule 11.03(1) provides in pertinent p art: "The indictm ent

m ust allege w ith particularity t h e n a t ure or description of t he of f ense constituting the previous convictions, the state or f ederal jurisdiction of any previous conviction, and the date of judgm ent.” T h e t r i a l court entered an order g ranting the State’s m otion t o am end the indictm ents. However, the order sim ply stated, “the indictm ents in the above sty led causes are hereby

am e nded to charge Courtney Logan as a Violent Habitual Of f ender pursuant to U.C.C.R. [ sic] 7.09 and 9 9-19-83 of the Mississippi Code of 1972, as am e nded.” The order did not specif

y the prio r c o nvictions relied u pon and did n ot attach t he prior judgm ents of convictions to i ts order. Although t he State attached c o pies o f L o g an’s prior Kentucky

con v i ctions to its m otion t o am end the indictm ents, it did not incorporate the attachm ent listing the certif

ied orders to the am ended i ndictm ents as the t rial court did in Heidelberg v. State , 45 S o . 3 d 7 3 0, 7 32-34 (¶13) (Miss. C t. App. 2010). Thus, the order am e nding the indictm ents was not in com pliance with Rule 11.03. See V ince v. State , 844 So. 2 d 510, 516-
17 (¶¶16-20) (Miss. C t. A p p . 2 003) (f inding plain error because the indictm e nt f ailed to

com ply with Rule 11.03). ¶57. L o g a n also argued that the State f a i l e d t o me e t i t s b u r d e n o f p r o v i n g h i s

2 7habitual-of

f ender s tatus by com

p etent evidence because the certif ied co p i e s o f his prior judgm ents o f c onviction w ere n e ver f orm a lly introduced into evidence a t the s e ntencing hearing. “The best e vidence of a conviction is the judgm ent of conviction.” G rayer v. State , 120 So. 3d 964, 969 (¶18) ( Miss. 2013). In Grayer , t he State f ailed t o place the certif

ied copies of the p rior f

elony convictions into t he record or to o f f er any evidence to support the def endant’s habitual-of

f ender status other than a recitation of his prior f elony convictions. Id. at (¶19). Consequently , t h e s u p rem e c o urt v acated Gray er’s sentence and habitual-of

f ender status because th e S t a t e f ailed to prove Gray er’s prior convictions with

com petent evidence, and rem anded the case to t he trial court f or resent e n c ing as a nonhabitual of

f ender. Id. at 970 (¶22). ¶58. At Logan’s sentencing hearing, the State orally requested that the trial court consider and incorporate the e vidence of Logan' s prior c onvictions that had been entered into evidence

at the guilt phase o f trial. Although the State of f ere d a " r e s i dent r ecord c a rd" f rom the Kentucky Departm ent of Corrections and a notarized certif icate stating the resident record card was a true and c orrect copy of t he original records, the ce rtif ied copies of the prior judgm ents of conviction were never f orm ally i ntroduced into evidence a t the s e ntencing hearing. The State represented that it had the certif ied copies of the convictions, but nothing in the record reveals why these copies were n ot of f ered or received into evidence. See Vince , 844 S o. 2d at 518 (¶25) (“A prosecuting attorney , i ntent on proving p rior convictions, would do well to heed t his sim

ple and s traightf

orward advice f

r om the Mississippi Suprem e Court

2 8rather than needlessly testin g the lim its of the rules of evidence by attem pting to m ake do with increasingly rem ote and less r eliable m ethods of proof .”). Accordingly , the S tate should have of f ered the certif

ied copies of

the convictions into evidence. ¶59. Moreover, it i s evident that there was som e uncertainty on the proper course to take

as it related to the proof required to prove Logan’s h abitual-of f ender status

. D u r i ng the sentencing hearing, the f

ollowing exchange occurred: By Mr. Jones: J u d g e , t h e v i o l e n t h a b i t u a l t h e n p r e s e n t t h e t w o ,

withdraw that a nd p resent t h e two judgment of convictions [ sic] that show hi s convictions for 9 9-19[

- ] 81, t he nonviolent habitual [ , ] which would carry 10 on each c ount day for day consecutive , and then I assum e a lif e sentence w ould in essence be day f or d ay without parole. By Mr. Gore: I s uggest tha t we continue sentencing u ntil we’ve had a

chance to f

igure that out exactly

. By Mr. Jones: I would like to go f o rward today

if the Court is inclined to sentence without the benef it of - - I will withdraw the violent habitual judge

. By the Court: W ell, it just seem s to m e that, y ou know, custom arily I ’m

not sure what proof is r equired, but custom arily y ou have to have som ebody

identif y this guy as being that guy

.

. . . . By Mr. Gore: Since we are talking about day f or d ay f or the rest of his lif e, m y c l ient is inclined to ask f or a continuance until w e ’ r e on solid ground w ith a ll of this. He’s not goi n g any w here. By Mr. Jones: He’s ju s t b e en sentenced to f our lif e sentences or about to b e - - f ive. I don’t see what in t he w orld c ontinuing
2 9sen t e ncing would benef i t a ny body bef ore now. I t’s sim ply if y ou f

ind bey ond a reason a b l e d o ubt, and y ou know that, Judge, and I’ve got a n of f i cer. If y o u do, y ou do; i f y ou don’t, y o u don’t. H e’s b een p ut on notice of it. By the Court:

. . . So I think I ’ m g o n n a g o a head and proceed, so I’m

going to deny

the request f

or a continuance. (Em phasis added). ¶60. Recognizi n g t h e u n c e r t a i n t y surrounding t he proof of L ogan’s habitual-of f ender status, def ense counsel requested a continuance. However, the hearing proceeded and Logan

was sentenced as a violent h abitual o f f e n d e r even though the State f ailed to i ntroduce the certif i ed c opies of the prior convictions entered into evidence. This f a i lure was c o m

pounded by noncom

pliance with Rule 11.03 and the State appearing t o withdraw the violent-habitual charge twice during the sentencing hearing. ¶61. For t hese r e a s o n s , I c a n n o t s a y t h at Logan was properly sentenced as a habitual of f ender under section 99-19-83. I would af f irm t he j udgm ent of conviction f or f ive counts of kidnapping and s entence of lif e on each count, to run consecutively

. I would also af f irm the judgm ents of c onviction f or the one count of aiding escape and o ne count of p ossession of a f irearm by a convicted f

elon. However, I w ould reverse Logan' s sentence as a habitual of f ender and rem and f

or Logan to be resentenced as a nonhabitual of f ender.

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