for the Court:
PROCEDURAL HISTORY
¶ 1. James Martin Busby was convicted by a jury in the Harrison County Circuit Court of one count of auto burglary and one count of auto theft. Busby was sentenced as a habitual offender to seven years for the auto burglary and fifteen years for the auto theft. His sentences were ordered to run concurrently and be served in the custody of the Mississippi Department of Corrections. Busby filed post-trial motions, which the trial court denied. Busby’s appellate counsel filed an appeal asserting that the evidence was insufficient to support his conviction. Busby also filed a separate brief raising several additional issues, as follows: (1) ineffective assistance of counsel; (2) prosecutorial misconduct; (8) confusion regarding two jury instructions; and (4) error in the denial of his request for a continuance and substitution of counsel.
FACTS
¶ 2. At some time during the night of May 3 or morning of May 4, 2012, Oscar Sanzin’s gold truck was stolen from his carport. Sanzin’s home was located in Harrison County, Mississippi. Deputy Charles Saucier of the Harrison County Sheriff’s Department responded to the scene. Sanzin’s neighbor, Sandra Pittman, approached Deputy Saucier and told him that her husband’s car had been broken into and his wallet stolen. Yon Pittman testified he had left his wallet in the console of his car the night before and often left his car doors unlocked.
¶ 3. Officer Martin Wagner of the Biloxi Police Department heard the BOLO, or “be on the lookout,” for Sanzin’s gold truck and spotted a truck matching the description. Officer Wagner, along with back-up, initiated a traffic stop. The driv
¶ 4. During an initial search of Busby, the officers found a wallet in Busby’s pocket. This wallet contained Von Pittman’s debit card and Busby’s identification. Von Pittman identified the wallet and debit card as his personal items that he had placed in the console of his car the night of May 3, 2012.
¶ 5. Busby testified he had received the wallet earlier in the day on May 3, 2012. Busby spent the night of May 3 gambling and drinking heavily at a casino. According to Busby, he was offered a ride by a man named Eugene, who was driving a gold truck. Eugene gave Busby Von Pittman’s debit card to put gas in the truck. But Eugene disappeared, and Busby drove the truck around until he was apprehended.
DISCUSSION
I.SUFFICIENCY OF THE EVIDENCE
¶ 6. In the only issue briefed by Busby’s appellate counsel, Busby’s counsel contends the evidence was insufficient to support the guilty verdict. Regarding whether the evidence was legally sufficient to support the verdict, we look to our standard of review. “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’” Bush v. State,
¶ 7. Busby’s counsel contends the possession of the truck and debit card is not sufficient proof that he stole the truck or burglarized the Pittmans’ car. Busby’s counsel cites to Murphy v. State,
1. The temporal proximity of the possession to the crime to be inferred;
2. The number or percentage of the fruits of the crime possessed;
3. The nature of the possession in terms of whether there is an attempt at concealment or any other evidence of guilty knowledge;
4. Whether an explanation is given and whether that explanation is plausible or demonstrably false.
Id. at 383.
¶ 8. The first factor, the temporal proximity of possession, lends great strength to the inference that Busby committed the burglary and auto theft. Evidence shows that Busby possessed fruits of the burglary and auto theft on the same day of the
II. INEFFECTIVE ASSISTANCE OF COUNSEL
¶ 9. In his pro se brief, Busby argues that his trial counsel was ineffective. However, the supreme court has stated:
[I]neffective[-]assistance[-]of[-]counsel claims are more appropriately brought during post-conviction proceedings. This is because during direct appeals the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately. In such a case, the appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue through a petition for post-conviction relief.
Archer v. State,
III. PROSECUTORIAL MISCONDUCT
¶ 10. In his next issue, Busby contends the State committed misconduct by submitting an invalid conviction into the record. Busby argues the section of the indictment that listed his prior convictions for habitual-offender status is incorrect. The indictment lists five separate prior convictions to prove Busby’s habitual-offender status. The third conviction listed states Busby was convicted in cause number B2401-2004-705 of auto theft on April 25, 2006, and sentenced to five years. The fourth conviction listed states Busby was convicted in cause number B2401-2004-709 of auto theft on April 25, 2006, and sentenced to seven years. Busby argues this fourth conviction was incorrect and that cause number B2401-2004-709 was a burglary charge.
¶ 11. The State’s exhibit 1, which was introduced at the sentencing hearing, includes a copy of Busby’s conviction from April 25, 2006, which states Busby pleaded guilty to auto theft in cause number B2401-2004-705 and burglary in cause number B2401-2004-709. It appears Busby is correct that the habitual-offender portion of his indictment contains an error and should say Busby was convicted in cause number B2401-2004-709 of burglary (not auto theft) on April 25, 2006. But Busby did not object to this error prior to trial, during trial, or post-trial. Because no objection was made, Busby must rely on plain error. See Flora v. State,
IV.JURY INSTRUCTIONS
¶ 12. Busby next argues two jury instructions, D-6 and D-8, were left un
V. DENIAL OF REQUEST FOR CONTINUANCE AND SUBSTITUTION OF COUNSEL
¶ 13. In his final issue, Busby argues the trial court erred in denying his request for a continuance and substitution of counsel. Busby contends his waiver of arraignment states that his trial was initially set for April 8, 2013, but “for reasons unknown to Busby, the trial was rescheduled for the earlier date of March 4, 2013.” Busby then contends he requested a continuance since he was “not in agreement with the rescheduling of this trial date for which Busby had entered into a legally binding contract/agreement.” However, the record, including the docket, does not show any motion for a continuance filed on Busby’s behalf. The only mention of a continuance in the record occurred the day trial was to commence and concerned another matter.
¶ 14. On the day trial was to begin, Busby informed the trial court he had conflicts with his attorneys and wanted new representation. The trial court denied his request. In Burnett v. State,
¶ 15. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, AUTO BURGLARY, AND SENTENCE OF SEVEN YEARS; AND COUNT II, AUTQ THEFT, AND SENTENCE OF FIFTEEN YEARS, WITH SENTENCES TO RUN CONCURRENTLY, ALL AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
Notes
. While in a holding cell awaiting trial, Busby was assaulted by another prisoner. Approximately one hour prior to trial, the trial court spoke with Busby about his condition. The trial court decided to continue trial until the next day in order for Busby's condition to improve.