Sidney Bishop v. State of Mississippi ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-KA-00487-COA
SIDNEY BISHOP A/K/A SIDNEY E. BISHOP APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 03/13/2018
TRIAL JUDGE: HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: MATTHEW WYATT WALTON
DISTRICT ATTORNEY: DOUG EVANS
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 07/23/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.
C. WILSON, J., FOR THE COURT:
¶1. An Attala County jury convicted Sidney Bishop of four counts of gratification of lust,
two counts of sexual battery, and one count of statutory rape. The trial court sentenced
Bishop to serve twenty years with five years suspended for Count II (sexual battery) and to
fifteen years to be served concurrently to Count II for each of the remaining six charges.
Counts I–V pertained to one minor female (“Alice”); Counts VI and VII pertained to another
minor female (“Brenda”).1
1
This Court declines to identify sexual abuse victims by name or any other identifier.
To protect the victims’ privacy, their names and the names of family members have been
¶2. After filing an unsuccessful post-trial motion, Bishop timely appeals. He raises the
following issues: (1) whether the evidence was sufficient for the statutory rape conviction
in Count III or whether the verdict was contrary to the overwhelming weight of the evidence;
(2) whether Bishop was irreparably prejudiced by an improper limitation of his cross-
examination of Brenda’s mother; (3) whether the trial court erred by excluding evidence that
Brenda had been in the presence of another man suspected of abuse; and (4) whether trial
counsel was ineffective for failing to request an alibi instruction.
¶3. After a thorough review of the record, we affirm.
FACTS
¶4. Two girls, Alice and Brenda, accused Bishop of sexual abuse. We will recount the
facts of the case and the course of the proceedings as they pertain to the respective victims
and corresponding counts charged.
I. Alice
¶5. Alice was born in 2001. When she was about five years old, she and her mother
began attending church, where she met Bishop and his wife, Dorothy. Alice described how
Bishop and Dorothy quickly became friends with Alice’s mother. At first, Bishop was nice
to Alice; thereafter, Bishop would separate her from others at church, take her to the back
of the church, and touch her inappropriately.
¶6. When Alice was about seven, and after the abuse had already begun, Alice and her
mother were evicted from their apartment. The Bishops owned a garage apartment and
replaced with fictitious names.
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allowed Alice and her mother to stay there. The sexual abuse continued within the confines
of Bishop’s household, where Bishop would invite Alice to a back bedroom to play with his
cats while his wife, Dorothy, remained in the front of the house in her recliner. The abuse
ended when Alice was removed from her mother’s custody in February 2016 due to her
mother’s inability to properly care for her.
¶7. The following five counts pertain to Alice and recount, in detail, the abuse she
suffered.
A. Count I: Gratification of Lust
¶8. Alice testified that when she was between five and seven years old, Bishop would take
her to the back of their church and touch her breasts and buttocks both on top of and inside
her clothing. Alice testified that Bishop told her that she was “pretty or sexy and that he
loved [her] and that [she] was beautiful.” These events occurred between September 20,
2006, and April 1, 2007.
B. Count II: Sexual Battery
¶9. The abuse continued after Alice moved into Bishop’s garage apartment with her
mother. Alice testified that during visits to Bishop’s house, Bishop would take her to his
bedroom, ostensibly to show her his cats. Once in the bedroom, Bishop would pull her pants
down and lay her on his bed. Bishop would then touch her vagina, both inside and out, using
his fingers, hands, and mouth. On some occasions, Bishop would penetrate Alice’s vulva.
Bishop abused Alice like this “once a week or more.”
C. Count III: Statutory Rape
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¶10. Alice testified that in April 2007, just a few days before Easter Sunday, Bishop raped
her. Alice testified that Bishop put something in her juice which made her feel lightheaded.
He then placed her on the bed in the back bedroom and removed her pants. After Alice
struggled to the extent that she could, Bishop got on top of her. While Bishop was on top of
Alice, she felt pressure and pain in her vaginal area. She passed out, and when she regained
consciousness, she was covered in blood and surrounded by bloody sheets. Bishop cleaned
Alice up, took the sheets off of the bed and placed them in a bag, and put Alice’s pants back
on her. Alice continued to find traces of blood in her panties for two months thereafter.
According to Alice, Bishop threatened to kill her and her mother if Alice told anyone about
the rape.
D. Count IV: Sexual Battery
¶11. The abuse that formed the basis for Count II continued after Bishop had raped Alice.
Bishop continued to put his mouth, hands, and fingers in and around Alice’s vagina. Alice
testified that this abuse continued until she was about ten years old.
E. Count V: Gratification of Lust
¶12. After Alice turned ten years old, Bishop continued to touch Alice inappropriately.
Alice testified that whenever Bishop had the chance, he would put Alice in a “death-like
grasp” and touch her breasts and butt as he had done before. Bishop would also pull out his
penis and ask Alice to touch it and kiss it. When Alice refused, Bishop would force his penis
to her lips. The abuse finally ended when Alice was removed from her mother’s custody in
February 2016.
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II. Brenda
¶13. Brenda was born in 2004. She lived with her parents and siblings in a house across
the street from the Bishops. As neighbors, the Bishops would occasionally visit Brenda’s
family to eat, talk, and watch television together. Brenda testified that she had a “good
relationship” with Bishop and that everyone in her family was close to the Bishops.
¶14. Most of the abuse Brenda suffered occurred in the same place and in the same manner
as Alice. Like Alice, Bishop would lure Brenda over to his house under the guise of playing
with his cats. While there, Bishop would sexually abuse Brenda in a back bedroom while
Dorothy remained in her recliner near the front of the house. Other instances of abuse
occurred in Brenda’s own home. The abuse finally ended when Brenda told her parents that
Bishop had been sexually abusing her.
¶15. The following two counts pertain to Brenda and detail the abuse she suffered.2
A. Count VI: Gratification of Lust
¶16. Brenda testified that Bishop first touched her inappropriately when she was eleven
years old on Thanksgiving Day. Brenda was alone in her bedroom watching TV after she
had eaten supper. Everyone else present, including Brenda’s family, Dorothy, and Alice,
were in the kitchen when Bishop entered Brenda’s room to give her $5 or $10 as a gift.
While alone with Brenda, Bishop placed his hand on her vagina on the outside of her clothes.
Bishop said nothing when he touched Brenda, and he quickly left the room afterwards.
B. Count VII: Gratification of Lust
2
Apart from the events comprising Counts VI and VII, Brenda also testified that
Bishop forced her hand down his pants to touch his penis.
5
¶17. About a week after Brenda’s birthday, Bishop invited Brenda to come over to see his
cats. Brenda testified that Bishop took her to a back room and touched her breasts
underneath her clothes. According to Brenda, Bishop told Brenda that “he wished he could
have [her] and just stuff like that.” Brenda also recounted that Dorothy was always in the
Bishops’ living room “[e]ither on the phone or writing or talking or something.”
COURSE OF PROCEEDINGS
¶18. On March 7, 2018, an Attala County jury convicted Bishop of four counts of
gratification of lust in violation of Mississippi Code Annotated section 97-5-23(1) (Rev.
2014), two counts of sexual battery in violation of Mississippi Code Annotated section 97-3-
95(1)(d) (Rev. 2014), and one count of statutory rape in violation of Mississippi Code
Annotated section 97-3-65(b) (Rev. 2014). The trial court sentenced Bishop as follows:
COUNT I Gratification of Lust 15 Years, Concurrent with Count II
COUNT II Sexual Battery 20 Years, with 5 Years Suspended
COUNT III Statutory Rape 15 Years, Concurrent with Count II
COUNT IV Sexual Battery 15 Years, Concurrent with Count II
COUNT V Gratification of Lust 15 Years, Concurrent with Count II
COUNT VI Gratification of Lust 15 Years, Concurrent with Count II
COUNT VII Gratification of Lust 15 Years, Concurrent with Count II.
¶19. Bishop filed a motion for a judgment notwithstanding the verdict (JNOV) or a new
trial, which the trial judge denied on March 26, 2018. Bishop timely filed his notice of
appeal on April 2, 2018, raising the following issues: (1) whether the evidence was sufficient
for the statutory rape conviction in Count III, or whether the verdict was contrary to the
overwhelming weight of the evidence; (2) whether Bishop was irreparably prejudiced by an
improper limitation of his cross-examination of Brenda’s mother; (3) whether the trial court
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erred by excluding evidence that Brenda had been in the company of another man suspected
of abuse; and (4) whether trial counsel was ineffective for failing to request an alibi
instruction. We discuss each of these issues in turn.
DISCUSSION
I. The State presented sufficient evidence for Bishop’s statutory rape
conviction, and the jury’s verdict was not against the
overwhelming weight of the evidence.
¶20. Bishop first asserts that there was insufficient evidence to convict him of statutory
rape—specifically, he contends that evidence of penetration was lacking. Alternatively,
Bishop asserts that the verdict was against the overwhelming weight of the evidence.
¶21. This Court applies a de novo standard of review of a trial court’s denial of a motion
for a JNOV. Mine Safety Appliance Co. v. Holmes, 171 So. 3d 442, 446 (¶8) (Miss. 2015).
“A motion for JNOV is a challenge to the legal sufficiency of the evidence, and [we] will
affirm the denial of a JNOV if, viewing the evidence in a light most favorable to the verdict,
there is substantial evidence to support the verdict.” Id. (internal quotation marks omitted).
¶22. A motion for a new trial has a different standard of review than a JNOV and
challenges the weight of the evidence. Daniels v. State, 107 So. 3d 961, 963 (¶12) (Miss.
2013). We will reverse the trial court’s denial of a motion for a new trial only if the trial
court abused its discretion by doing so. Id. “Our role as appellate court is to view the
evidence in the light most favorable to the verdict and disturb the verdict only when it is so
contrary to the overwhelming weight of the evidence that to allow it to stand would sanction
an unconscionable injustice.” Little v. State, 233 So. 3d 288, 289 (¶1) (Miss. 2017).
7
A. Sufficiency of the Evidence
¶23. Bishop asserts that the State presented insufficient evidence to support one of the
elements of his statutory rape conviction in Count III—penetration.3 Under section 97-3-
65(1)(b), the crime of statutory rape is committed when a person of any age, who is at least
twenty-four months older than the subject child and is not the subject child’s spouse, has
sexual intercourse with a child under the age of fourteen. To establish the offense of rape,
the State must prove that there was “some penetration” of the victim’s vagina by the
defendant’s penis; however, only “slight penetration” needs to be shown. Wilson v. State,
606 So. 2d 598, 599 (Miss. 1992).
¶24. Proof of penetration is not necessary if there is evidence that the private parts of the
child younger than sixteen have been lacerated or torn. Miss. Code Ann. § 97-3-65(5).
Absent such evidence, proof of penetration is required. “Actual medical evidence of
penetration, however, is not necessary,” and penetration “need not be proved in any particular
form of words . . . .” Wilson, 606 So. 2d at 600; see also Morris v. State, 913 So. 2d 432, 435
(Miss. Ct. App. 2005) (¶13) (“The lack of medical testimony does not vitiate the claim of
slight penetration of the vulva or labia.”). Sufficient evidence may include medical
testimony or testimony by the victim. Morris, 913 So. 2d at 435. Thus, “circumstantial
evidence may suffice” so long as penetration is established beyond a reasonable doubt.
Wilson, 606 So. 2d at 600.
¶25. On direct examination, Alice explicitly testified that Bishop put his penis inside of her
3
Bishop does not challenge the sufficiency of the State’s evidence as to any other
element of Count III.
8
vagina; however, on cross-examination, Alice stated that she assumed it was Bishop’s penis
inside of her, because he was on top of her and she was unable to see his penis.
Notwithstanding, Alice provided additional testimony sufficient to prove penetration. She
testified that Bishop put something in her juice that made her feel lightheaded. He then
placed her on the bed in the back bedroom and removed her pants. After struggling with
Bishop to the extent that she could, Bishop got on top of Alice. While Bishop was on top of
Alice, she felt pressure and pain in her vaginal area. She passed out, and when she regained
consciousness, she was covered in blood and surrounded by bloody sheets. Bishop then
cleaned Alice up, took the sheets off of the bed and placed them in a bag, and put Alice’s
pants back on her. Alice continued to find traces of blood in her panties for two months
thereafter.
¶26. “When [we] review[] the sufficiency of evidence supporting a guilty verdict, we view
the evidence in the light most favorable to the State and decide if rational jurors could have
found the State proved each element of the crime.” Lenoir v. State, 222 So. 3d 273, 279
(¶25) (Miss. 2017). “We are not required to decide—and in fact we must refrain from
deciding—whether we think the State proved the elements[;] [r]ather, we must decide
whether a reasonable juror could rationally say that the State did.” Id. (emphasis and citation
omitted). When considering whether sufficient evidence exists to uphold a conviction, our
supreme court has stated:
This Court considers each element of the offense and reviews all of the
evidence in the light most favorable to the verdict. This Court must accept as
true all credible evidence consistent with guilt. This Court must give the State
the benefit of all favorable inferences that may reasonably be drawn from the
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evidence. Moreover, matters regarding the weight and credibility given the
evidence are the province of the jury. This Court may reverse only when, with
respect to one or more of the elements of the offense charged, the evidence so
considered is such that reasonable and fair-minded jurors could only find the
accused not guilty. Thus, if any rational trier of fact could have found each
and every one of the elements of the crime beyond a reasonable doubt, when
viewing the evidence in the light most favorable to the prosecution, the verdict
must stand.
Cowart v. State, 178 So. 3d 651, 666 (¶¶ 40-41) (Miss. 2015) (citation, internal quotation
marks, and emphasis omitted).
¶27. Bishop contests Alice’s testimony and contends that when Alice’s testimony is placed
under scrutiny, the evidence presented at trial is insufficient to support his conviction for
statutory rape. See Killingsworth v. State, 374 So. 2d 221, 223 (Miss. 1979) (“While it is true
that a conviction for rape may rest on the uncorroborated testimony of the person raped, that
testimony should always be scrutinized with caution.”). First, Bishop acknowledges that
“Alice said she was bleeding after the alleged rape.” Bishop, however, contends that this
statement is irrelevant because there “was no testimony or medical evidence from whence
the bleeding came,” and Alice did not see, but rather assumed, Bishop’s penis penetrated her
vagina. As stated above, however, actual medical evidence of penetration is not necessary,
and penetration may be proved via Alice’s testimony or other circumstantial evidence.4 See
Wilson, 606 So. 2d at 600; Morris, 913 So. 2d at 435.
¶28. Bishop also entered into evidence a surgery report showing that he had undergone a
radical retropubic prostatectomy in 1997. Bishop and Dorothy both testified that Bishop
4
Alice testified that Bishop threatened to kill her and her mother if she told anyone
about the rape. Moreover, when the prosecutor asked Alice about the time frame in which
Bishop threatened her, Alice testified that it “was after the penetration.”
10
could not obtain an erection after this surgery; this testimony, however, did not discredit or
contradict Alice’s testimony that Bishop’s penis penetrated her. The State need not present
evidence that a defendant is able to obtain an erection under section 97-3-65(1)(b); rather,
the State must only show evidence of slight penetration. See also Brown v. State, 751 So. 2d
1155, 1158 (¶10) (Miss. Ct. App. 1999) (“Rather, looking at the evidence in a light most
favorable to the verdict, as we must, the victim’s testimony is consistent in establishing that
although Brown was unable to maintain an erection . . . , there was at least some penetration
of her vagina by his penis.”) (emphasis added).
¶29. Viewing the evidence in the light most favorable to the prosecution, there was
sufficient evidence at trial for reasonable, fair-minded jurors to find the State proved
penetration beyond a reasonable doubt. Therefore, Bishop’s assignment of error on this point
lacks merit.
B. Weight of the Evidence
¶30. Alternatively, Bishop asserts that the verdict was against the overwhelming weight
of the evidence. We disagree.
¶31. When reviewing the denial of a motion for a new trial, we weigh the evidence in the
light most favorable to the verdict and “will only disturb a verdict when it is so contrary to
the overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice.” Lenoir, 222 So. 3d at 278 (¶20). “It is the role—and the
responsibility—of the jury to weigh witness testimony and determine its credibility. . . .
Where the evidence justifies a verdict, it must be accepted as having been found worthy of
11
belief.” Toliver v. State, 271 So. 3d 513, 517 (¶14) (Miss. Ct. App. 2018) (internal quotation
marks omitted) (mandate issued on Nov. 20, 2018); see also Edwards v. State, 797 So. 2d
1049, 1058 (¶26) (Miss. Ct. App. 2001) (“It is the jury’s role to weigh the credibility of the
evidence and decide which facts are accepted or rejected.”).
¶32. We “will not substitute our factual findings for that of the jury in a contest of
credibility.” Roberson v. State, 19 So. 3d 95, 105 (¶25) (Miss. Ct. App. 2009). Here, the jury
weighed the conflicting testimony and determined Alice’s testimony to be more credible than
that of the Bishops. The jury was also presented with circumstantial evidence substantiating
the abuse allegations. Thus, the jury’s verdict was not against the overwhelming weight of
the evidence, and it would not sanction an unconscionable injustice to uphold the jury’s
verdict. We find no merit to this issue.
II. The trial court did not abuse its discretion in limiting the cross-
examination of Brenda’s mother regarding prior bad acts.
¶33. Bishop next contends that he is entitled to a new trial on Counts VI and VII because
his Sixth Amendment right to confront the witnesses against him was violated. Bishop
asserts that the trial court limited his ability to cross-examine Brenda’s mother about two
prior bad acts—a pending fraud charge and a non-adjudicated embezzlement charge to which
Brenda’s mother pled guilty. According to Bishop, the State’s ability to extend leniency in
exchange for corroborative testimony renders these charges ripe for cross-examination. We
disagree.
¶34. Generally, Mississippi affords “wide-open cross-examination” as to all relevant
matters, including the possible interest, bias, or prejudice of a witness. Meeks v. State, 604
12
So. 2d 748, 755 (Miss. 1992) (citing M.R.E. 611(b)5 and additional authority). But a trial
court may limit cross-examination so long as its discretion in excluding evidence is not
abused. Collier v. State, 183 So. 3d 885, 889-90 (¶18) (Miss. 2016). Abuse of discretion is
“found only where the defendant shows clear prejudice from undue restraint on the defense.”
Id. at 890 (¶18). “When a trial court rules so as to prevent certain testimony from being
introduced, it is incumbent on the party to make a proffer of what the witness would have
testified to or the point is waived for appellate review.” Donelson v. State, 158 So. 3d 1154,
1164 (¶53) (Miss. Ct. App. 2014).
¶35. Here, Bishop did not make a proffer as to Brenda’s mother’s unrelated charges;
therefore, he failed to preserve this error for appellate review. Regardless, the trial court did
not abuse his discretion by limiting Bishop’s ability to cross-examine Brenda’s mother about
her pending fraud charge and her non-adjudicated embezzlement charge to which she pled
guilty. While “wide-open cross-examination” is a venerable feature of our adversarial system
of justice, Rule 611(b) does not operate unfettered from other applicable rules of evidence.
See Holliday v. State, 758 So. 2d 1078, 1082 (¶12) (Miss. Ct. App. 2000) (“The right of
cross-examination has been limited only [in] clear cases of irrelevancy, trespass beyond
admissible grounds, or extremes of continual aimless repetition.”).
¶36. Rule 609(a) of the Mississippi Rules of Evidence applies when attacking a witness’s
character for truthfulness with evidence of a criminal conviction. Bishop’s assertion that the
trial judge improperly limited his ability to cross-examine Brenda’s mother about a pending
5
Rule 611(b) provides that “[t]he court may not limit cross-examination to the subject
matter of the direct examination and matters affecting the witness’s credibility.”
13
fraud charge in Attala County and a non-adjudicated embezzlement charge is belied by the
plain language of this rule. Recognizing Rule 609, the trial judge made the following
statements with regard to the pending fraud charge: (1) “A prior conviction is admissible,
but I’m not aware of any rule that says a pending charge is”; and (2) “[A]n indictment is not
an indication of guilt. She’s got the presumption of innocence. And so I think it would be
improper to get into that.” Further, after Bishop’s counsel began questioning Brenda’s
mother about the non-adjudicated embezzlement charge, the circuit court admonished
counsel:
Now, you absolutely know that a conviction is the only thing that you can ask
about. If it was non-adjudicated and the case is dismissed, that is not a
conviction. And the only thing that the rules provide for on a crime of
dishonesty is if they have been convicted. Now, you know the rules better than
that. I do not like you playing fast and loose with the rules of evidence . . . so
ladies and gentlemen [of the jury], you are to disregard that entire line of
questioning.
¶37. The trial judge did not err in his application of Rule 609(a), and his limitation of
Bishop’s cross-examination in this regard did not run afoul of Rule 611(b). Hence, the trial
court did not abuse its discretion in limiting the cross-examination of Brenda’s mother, and
Bishop suffered no prejudice as a result of the limitation.
III. The trial court did not abuse its discretion by sustaining the State’s
objection to a line of questioning regarding past abuse.
¶38. In his third assignment of error, Bishop similarly attacks his Count VI and Count VII
convictions, contending that the trial court improperly limited his cross-examination of
Brenda’s mother such that he was denied the opportunity to “establish a factual basis for the
defense that someone else might have abused Brenda.” Again, we disagree.
14
¶39. During direct examination, Brenda testified that no one other than Bishop had
inappropriately touched her at any time. On cross-examination, Bishop never inquired into
whether any other person had molested Brenda, nor did Bishop ask whether Brenda had
mistaken Bishop for another person who had previously abused her.
¶40. But during cross-examination of Brenda’s mother, Bishop inquired whether Brenda’s
mother had ever been sexually assaulted. Brenda’s mother, in the presence of the jury,
admitted that she had told her psychiatrist (and only her psychiatrist) that she had previously
been molested by her stepfather. Bishop then asked Brenda’s mother if her stepfather had
been around Brenda between 2015 and 2016. The State objected to the relevance of the
question, and the trial court sustained the objection. Bishop then requested to make a proffer.
¶41. During the proffer, Brenda’s mother reiterated that the only person who knew that her
stepfather molested her was her psychiatrist. Brenda’s mother also stated that her stepfather
had been around Brenda in 2015 and 2016 but added that “[h]e was never alone with my
child at any given time.” Lastly, Brenda’s mother testified that she had never represented to
anyone that Brenda had been previously abused by a family member. Bishop then closed the
proffer, and, after the trial judge expressed concern as to the relevancy and admissibility of
the evidence, Bishop sought to introduce the testimony of Beverly Hoskins, a family friend
of the Bishops.
¶42. After the jury returned, Bishop asked Brenda’s mother if she had “ever made a
statement to Hoskins saying that [Brenda] had been molested when she was a child . . . .”
Brenda’s mother stated that she had not, and Bishop discontinued the line of questioning
15
until Hoskins was called as a witness. On direct examination, Hoskins testified that Brenda’s
mother told her that a family member had “messed with” Brenda; however, on cross-
examination, Hoskins was unable to clarify what Brenda’s mother meant or to provide any
further detail as to her alleged conversation with Brenda’s mother.
¶43. Ultimately, the trial court determined that the evidence Bishop sought to introduce
“has nothing to do with the issue at hand in this case.” Specifically, the trial judge stated, “I
don’t see how the fact that [Brenda] may have been around somebody that [Brenda’s mother]
claims molested her has anything to do . . . with whether [Bishop] molested her daughter
. . . .” We agree.
¶44. While evidence supporting a defense theory that another person, not Bishop, had
molested Brenda would be relevant, the proffered testimony of Brenda’s mother clearly
foreclosed any such theory. See M.R.E. 402. We therefore find that the trial court did not
abuse its discretion in limiting the cross-examination of Brenda’s mother, and Bishop
suffered no prejudice as a result of the limitation. Bishop’s assignment of error as to this
point is without merit.
IV. We decline to address Bishop’s assertion that his trial counsel was
ineffective on direct appeal.
¶45. Lastly, Bishop asserts that he received ineffective assistance of counsel. Specifically,
Bishop asserts that his trial counsel was constitutionally ineffective for failing to request
general alibi defense instructions for Counts I–V and Count VII, and a specific alibi defense
instruction with regard to Count VI.
¶46. “[G]enerally, ineffective-assistance-of-counsel claims are more appropriately brought
16
during post-conviction proceedings.” Bell v. State, 202 So. 3d 1239, 1242 (¶12) (Miss.
2016). This Court will “only consider an ineffective-assistance-of-counsel claim on direct
appeal when: (1) the record affirmatively shows ineffectiveness of constitutional
dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court
to make the finding without consideration of the findings of fact of the trial judge.” Nelson
v. State, 222 So. 3d 318, 322 (¶5) (Miss. Ct. App. 2017) (internal quotation marks omitted).
¶47. Here, the record does not affirmatively show ineffectiveness of constitutional
dimensions. And, although the parties stipulate that the record is adequate, we find Bishop’s
ineffective-assistance-of-counsel claim is based on facts not fully apparent from the record,
including facts related to his counsel’s trial strategy and tactics. Accordingly, we decline to
address the claim on direct appeal but preserve Bishop’s right to pursue his claim through
a petition for post-conviction collateral relief.
CONCLUSION
¶48. After a thorough review of the record, we find that the trial court properly denied
Bishop’s post-trial motion. The State presented sufficient evidence for Bishop’s statutory
rape conviction, and the jury’s verdict was not against the overwhelming weight of the
evidence. Likewise, the trial court did not abuse its discretion in limiting the cross-
examination of Brenda’s mother, and Bishop suffered no prejudice as a result of the proper
limitations. With regard to Bishop’s ineffective-assistance-of-counsel claim, we preserve
Bishop’s right to pursue his claim through a petition for post-conviction collateral relief. As
such, we affirm.
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¶49. AFFIRMED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ.,
CONCUR.
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