Courtney R. Logan v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2012-KA-01963-COA

COURTNEY R. LOGAN A/K/A COURTNEY APPELLANT
LOGAN

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/28/2012
TRIAL JUDGE: HON. W. ASHLEY HINES
COURT FROM WHICH 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: WILLIE DEWAYNE 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 WITHOUT 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 from a judgment of conviction following a jury trial in the

Circuit Court of Leflore County, where the jury found Courtney Logan guilty on five counts
of kidnapping, one count of aiding escape, and one count of felon in possession of a firearm.1

Logan was sentenced, as a habitual offender pursuant to Mississippi Code Annotated section

99-19-83 (Supp. 2014), to seven consecutive life sentences without the possibility of parole.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On June 25, 2009, transportation sergeants Chrissy Flowers, Perry Jones, and Leander

Robertson transported two inmates of the Delta Correctional Facility for an eye examination

at The Eye Station (the Clinic) in Greenwood, Mississippi. Joseph L. Jackson, one of the

inmates, was serving a life sentence in the custody of the Mississippi Department of

Corrections (MDOC) at the time.

¶3. The officers and the two inmates arrived at the Clinic approximately ten minutes

before the clinic opened at 8 a.m. The officers parked in the back of the building and

checked the perimeter of the building. One officer entered the clinic and checked with

Ashley Bowlin, an employee of the Clinic, to see if it was okay to bring in the inmates.

Officer Robertson then escorted Jackson through the back door, and Officer Jones escorted

the other inmate. Officer Flowers, armed with a silver service-weapon revolver, followed

behind them and remained at the back door. Jackson was bound in full restraints, which

1
Although we use the singular form of indictment throughout the opinion, we note
that the record indicates Logan was charged via two indictments dated the same day – one
indictment contains the five kidnapping charges, and the other indictment contains the
aiding-escape charge and the felon-in-possession charge.

2
included handcuffs, a waist chain, a black box, and leg irons. After a brief wait, Jackson was

called for his exam. Officer Robertson escorted Jackson to an exam room, and he stood by

the door to observe Jackson.

¶4. Moments later, Courtney Logan, a cousin of Jackson, entered the Clinic through the

back door. Logan, carrying a duffel bag and armed with a black handgun, fired a shot in the

air and ordered everyone to get on the floor. Officer Robertson lay down and slid into one

of the back exam rooms. Officer Flowers lay down near the back door, and Officer Jones

lay down in the waiting-room area. Bowlin slid into another room. Logan came around the

corner and ordered Bowlin to open the door. Bowlin opened the door, and Logan held the

gun to Bowlin’s face and told her he was going to blow her head off. Logan demanded a cell

phone from Bowlin, and she replied that she did not have one. Logan walked back around

the corner, continued to scream profanities, and demanded the keys. Logan threatened to kill

Officer Flowers if she did not give him the keys. He then took Officer Flowers’s gun. Logan

came back around the corner, stuck his gun in Bowlin’s face again, and told her not to move.

Logan shot a second time in the air and again threatened to shoot Officer Flowers in the head

if he was not given the keys. Officer Robertson came out of the back room and threw the

keys on the floor. Logan ordered Officer Flowers to get up and remove Jackson’s restraints

and shackles, but Officer Flowers was trembling so much that she was unable to unlock

them. Jackson then told Officer Flowers to give him the keys so he could take them off.

¶5. Meanwhile, Margaret Davis Chester, the office manager of the Clinic, arrived

3
approximately two or three minutes after 8 a.m. Before Chester entered the Clinic, she heard

what sounded like a gunshot. As soon as Chester entered the back door, Logan put a gun in

her face, yelled profanities, and ordered her to “get in.” Chester, followed by Logan, walked

straight to the lab in the Clinic and put down her purse and keys. Chester saw two officers

and the other inmate lying on the floor and Jackson in the middle of the room changing

clothes with handcuffs dangling from his arm and a duffle bag beside him. Logan then

ordered Chester to get on the floor, and she complied.

¶6. Jackson finished changing and grabbed the duffle bag and keys. Jackson, dragging

the restraints marked “CCA,” and Logan left the Clinic. After Jackson and Logan exited,

Officer Robertson locked the front door, and Chester called 911. Officers from the

Greenwood Police Department responded to the Clinic and found two spent nine-millimeter

casings – one was found on top of a desk in the Clinic and the other on the floor behind the

desk. Three plastic zip ties, often used as restraints, were found in the Clinic’s rear parking

lot. The officers and the employees of the Clinic all identified Logan at trial, and they all

testified that they felt they were not free to leave during their encounter with Logan.

¶7. On June 25, 2009, Jackson and Logan, traveling in a rented black Dodge Magnum,

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

a detective of the Metro Nashville Police Department. Jackson and Logan were taken into

custody. A dark green duffel bag with brown trim, a cell-phone charger, a black nylon

holster, zip ties, leg irons, and handcuffs marked “CCA” were recovered from the vehicle.

4
A loaded nine-millimeter handgun was recovered on top of the console, two nine-millimeter

magazines were retrieved from Logan’s person, and the service-weapon revolver taken from

Officer Flowers was also recovered.

¶8. Logan testified in his own defense at trial, essentially admitting to having committed

all the crimes, but claiming duress. Logan testified that Jackson and Jackson’s father, Joseph

Jackson Sr. (Jackson Sr.), devised a plan to escape during a doctor visit. Logan testified that

Jackson Sr. brought him to Greenwood, Mississippi, in April 2009, and showed him the

Clinic and the Travel Inn Motel. Logan admitted to following through with the crimes, but

claimed his intent was only to follow the orders of his uncle, Jackson Sr., because he felt at

the time he had no choice. Logan described Jackson Sr. as ruthless and very persuasive. He

testified that Jackson Sr. knew that Logan’s weakness was his children, and he feared

Jackson Sr. would do something to his children such as “kidnap, snatch up, anything.” He

also testified that whatever Jackson Sr. wanted, Jackson Sr. was going to get by any means.

However, Logan testified that he did not have a close relationship with his uncle. Logan also

testified that he did not know Jackson very well, because Jackson had been incarcerated the

last ten or eleven years. Logan testified that Jackson threatened Logan’s child’s life when

Jackson text messaged a picture of Logan’s six-month-old son and told him, “[Logan’s] son

looked nice.” To Logan, this subliminally meant that “[Jackson] has eyes on my children.”

Logan testified that “there were no other threats.”

¶9. Logan testified that on the June 24, 2009, he and his mother rented the black Dodge

5
Magnum. Logan then went to Jackson Sr.’s house in Louisville, Kentucky, where Jackson

Sr. gave him a duffle bag containing a cell phone and charger, zip ties, clothes for Jackson,

a nine-millimeter handgun and clips, and a GPS device to guide him to Greenwood. Logan

claimed that he asked Jackson Sr. if he would leave him out of it and have someone else go

through with it, but Jackson Sr. told Logan no. Logan drove from Louisville, to Greenwood,

Mississippi, and checked into the Travel Inn Motel at approximately 3:30 a.m. on June 25,

2009. Jackson Sr. called Logan later that morning for a wake-up call. Shortly after, Jackson

called Logan to tell him he was leaving the jail for the Clinic.

¶10. Logan testified that after he picked up Jackson at the Clinic, his next destination was

to drop him off with Jackson Sr. and get away as far as possible. Logan testified that he did

not resist police when he was stopped in Nashville, Tennessee. However, a motion in limine

was filed and granted on the issue of resisting arrest in Nashville because a police officer was

shot during the stop. Logan admitted he lied to investigators from the Nashville Police

Department and Greenwood Police Department when he initially told them that he picked

up Jackson in Memphis, Tennessee. Logan also said he picked up Jackson in Nashville, and

that he had never been to Mississippi.

¶11. On March 15, 2010, Logan was indicted for aiding escape of an MDOC inmate and

possession of a firearm by a convicted felon. On the same date, the grand jury indicted

Logan on five counts of kidnapping. On September 25, 2012, the State moved to charge

Logan as a habitual offender, and on November 26, 2012, the trial court entered an order

6
amending the indictment to charge Logan as a violent habitual offender under Uniform

Circuit and County Court Rule 7.09 and section 99-19-83.

¶12. On November 27-28, 2012, Logan was tried and convicted on five counts of

kidnapping, one count of aiding escape, and one count of felon in possession of a firearm.

The trial court sentenced Logan to seven consecutive life sentences without the possibility

of parole or probation. Logan filed a motion for a judgment notwithstanding the verdict

(JNOV) or, in the alternative, a new trial, which the trial court denied.

¶13. Logan appeals his conviction, raising the following issues: (1) the evidence was

insufficient to support his convictions for kidnapping; (2) the trial court erred in sentencing

him as a habitual offender; (3) the trial court erred in refusing jury instruction D-15; and (4)

he received ineffective assistance of counsel.

DISCUSSION

I. INSUFFICIENT EVIDENCE

¶14. Logan argues that the evidence was insufficient to support his convictions for

kidnapping. Logan argues that the confinement of the officers and the employees of the

Clinic was incident to the act of aiding Jackson’s escape and was of no greater degree than

necessary to accomplish Jackson’s escape. Logan claims he did not intend to hurt or kidnap

anyone and that he fired two shots, held the officers and employees of the Clinic at gunpoint,

and threatened to kill them if they did not comply in order to “maintain control.”

Alternatively, Logan argues that the verdict is against the overwhelming weight of the

7
evidence under the same reasoning. We will address both arguments.

a. Sufficiency of the Evidence

¶15. In reviewing the sufficiency of the evidence, “the critical inquiry is whether the

evidence shows beyond a reasonable doubt that accused committed the act charged, and that

he did so under such circumstances that every element of the offense existed; and where the

evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895

So. 2d 836, 843 (¶16) (Miss. 2005). “However, this inquiry does not require a court to ask

itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.” Id. “Instead, the relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Id.

¶16. Mississippi Code Annotated section 97-3-53 (Rev. 2014) provides that kidnapping

occurs when “[a]ny person who, without lawful authority and with or without intent to

secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap

any other person with intent to cause such person to be confined or imprisoned against his

or her will[.]”

¶17. In Cuevas v. State, 338 So. 2d 1236, 1238 (Miss. 1976), the Supreme Court of

Mississippi stated:

[T]he present trend by most authorities is not the distance of asportation in
kidnapping, but rather the fact of asportation as it relates to the unlawful
activity. If forcible detention or movement is merely incidental to a lesser
crime than kidnapping, such confinement or movement is insufficient to be

8
 molded into the greater crime of kidnapping.

However, the court explained:

An illustration might well be a strong-armed robbery where the victim is
detained and perhaps moved a few feet while being relieved of his wallet. The
detention and movement would not support kidnapping[,] albeit with force and
unlawful. On the other hand, if the confinement or asportation be not merely
incidental to a lesser crime, but a constituent part of the greater crime, the fact
of confinement or asportation is sufficient to support kidnapping without
regard to distance moved or time of confinement.

Id.

¶18. In Cuevas, a prisoner escaped from the county jail. Id. at 1237. During the escape,

the prisoner entered an automobile agency and took one of the employees at gunpoint from

the service department of the dealership to the parts department. Id. The prisoner was

convicted of kidnapping. Id. On appeal, he argued that the charge of kidnapping was not

sufficiently proven. Id. The supreme court determined that the prisoner’s “purpose in

seizing and detaining [the employee] was obviously to make good his escape.” Id. The

Court held:

The detention was not merely incidental to another and lesser crime. It was a
necessary constituent of the crime. The confinement and movement of [the
employee] by force from the service entrance of the building to the parts
department of the building was sufficiently proved to support Cuevas’[s]
conviction.

Id. at 1238-39.

¶19. Here, Logan’s purpose in seizing and detaining the officers and employees of the

Clinic was to effectuate Jackson’s escape as well as his own. Logan held all five individuals

9
at gunpoint. Logan fired his gun twice in the air and took Officer Flowers’s weapon during

the seizure. Logan threatened to kill Officer Flowers at least two times and an employee of

the Clinic at least once. Moreover, Logan ordered Officer Flowers at gunpoint to get up and

remove Jackson’s restraints. Logan also seized an employee when she entered the Clinic,

walked her through at gunpoint, and ordered her to lie on the ground along with the other

detained employee and the officers. The detention and movement of the officers and the

employees was not merely incidental to another and lesser crime of aiding an escape. The

seizure of the employees and officers at gunpoint was a necessary constituent of the crime.

We find more than sufficient evidence to support Logan’s kidnapping convictions.

¶20. We also rejected a similar argument to Logan’s in Salter v. State, 876 So. 2d 412, 415

(¶7) (Miss. Ct. App. 2003). In that case, Salter was convicted of burglary, armed robbery,

and kidnapping. Id. at 414 (¶2). Salter broke into a bank and waited for bank employees to

arrive. Id. Once the bank employees arrived, Salter, armed with a handgun, held the

employees at gunpoint, forced them into the bank vault, and made them lie down on the

floor. Id. One employee thought she was about to be killed when Salter made her lie face

down on the floor. Id. at 415 (¶7). Salter closed the bank-vault door and left. Id. According

to Salter’s own testimony, he put bank employees in the vault so that he could effectuate his

escape. Id. We framed the issue in Salter as follows: “The question at bar, therefore, is

whether Salter’s actions were incidental to a lesser crime or were a constituent part of the

greater crime.” Id. We held that the trial court did not err in accepting Salter’s guilty plea

10
in regard to the charge of kidnapping. Id. at (¶9). Likewise, there was more than sufficient

evidence to support Logan’s kidnapping convictions. Logan detained the officers and

employees at gunpoint so that he could effectuate both his and Jackson’s escape.

b. Overwhelming Weight of the Evidence

¶21. “When reviewing a denial of a motion for a new trial based on an objection to the

weight of the evidence, we 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.” Bush, 895 So. 2d at 844 (¶18). “The motion, however, is

addressed to the discretion of the court, which should be exercised with caution, and the

power to grant a new trial should be invoked only in exceptional cases in which the evidence

preponderates heavily against the verdict.” Id. “However, the evidence should be weighed

in the light most favorable to the verdict.” Id.

¶22. Logan advances the same argument in support of this assignment of error, which is

that the kidnapping is merely incidental to the aiding escape. We disagree and find that the

verdict is not against the overwhelming weight of the evidence.

II. HABITUAL-OFFENDER STATUS

¶23. At the outset, we note that Logan did not object to his habitual-offender status at trial

or in his JNOV motion; therefore, it is deemed waived. See Heidelberg v. State, 45 So. 3d

730, 732 (¶6) (Miss. Ct. App. 2010) (citing Sims v. State, 775 So. 2d 1291, 1294 (¶16) (Miss.

Ct. App. 2000)) (“The supreme court and this court have previously made clear that: ‘When

11
an accused fails to object to the habitual[-]offender issue during the sentencing phase, he is

procedurally barred to do so the first time on appeal.’”). Waiver notwithstanding, we will

briefly address this issue.

¶24. Logan argues that the indictment charging him as a habitual offender failed to allege

his prior convictions with particularity under Rule 11.03 of the Uniform Rules of Circuit and

County Court. Logan also contends that the evidence was insufficient to prove his habitual-

offender status beyond a reasonable doubt. Specifically, Logan argues that the State failed

to establish that Logan’s Kentucky convictions constituted two prior felonies under section

99-19-83.

a. Sufficient Evidence to Establish Habitual-Offender Status

¶25. The trial court found that Logan had “previously been convicted of two prior felonies

separately brought and arising out of separate incidents at different times and ha[d] been

sentenced to and served separate terms of one year or more in a state or federal institution,

with one of said felonies being a crime of violence.” At trial, the State introduced Exhibit

S-17 to prove that Logan had a prior felony conviction in order to establish the charge of

possession of a weapon by a convicted felon. Exhibit S-17 contained a certified copy of a

judgment of conviction from Kentucky, which provided that on August 8, 2003, Logan

pleaded guilty to robbery in the second degree under Kentucky Revised Statutes Annotated

section 515.020 in cause number 03-CR-0638. Exhibit S-17 also provided that Logan

pleaded guilty to fleeing or evading police in the first degree under Kentucky Revised

12
Statutes Annotated section 520.095 and assault in the fourth degree under Kentucky Revised

Statutes Annotated section 508.030 in cause number 03-CR-0610. The fleeing or evading-

police charge and assault arose from an incident separate from the robbery.

¶26. Logan argues that the fleeing/evading-police charge does not constitute a felony under

Mississippi law; therefore, that conviction is insufficient to support his habitual-offender

status.

¶27. Logan was indicted for the offense of fleeing or evading police in the first degree

when he, as a pedestrian, with the intent to flee or elude, knowingly and/or wantonly

disobeyed an order to stop, given by a person recognized to be a peace officer, and he was

fleeing immediately after committing an act of domestic violence. Kentucky Revised

Statutes Annotated section 520.095 provides in pertinent part:

(1) A person is guilty of fleeing or evading police in the first degree:

....

(b) When, as a pedestrian, and with intent to elude or flee, the
person knowingly or wantonly disobeys an order to stop, given
by a person recognized to be a peace officer, and at least one (1)
of the following conditions exists:

1. The person is fleeing immediately after
committing an act of domestic violence as defined
in KRS 403.720 . . . .

....

(2) Fleeing or evading police in the first degree is a Class D felony.

A factual summary of the events that led to Logan fleeing/evading police is described in the

13
pen pack. A police officer was dispatched to a vehicle in reference to Logan, who was seated

in the passenger seat, assaulting a female, who was seated in the driver’s seat. As the police

officer approached a vehicle occupied by Logan and the assault victim, Logan exited the

vehicle and ran from the officer despite being instructed to stop. A chase ensued, and the

officer eventually detained Logan. Logan pled guilty to this charge and was convicted for

fleeing or evading police under Kentucky Revised Statutes Annotated section

520.095(1)(b)(1).

¶28. Section 99-19-83 provides:

Every person convicted in this state of a felony who shall have been convicted
twice previously of any felony or federal crime upon charges separately
brought and arising out of separate incidents at different times and who shall
have been sentenced to and served separate terms of one (1) year or more,
whether served concurrently or not, in any state and/or federal penal
institution, whether in this state or elsewhere, and where any one (1) of such
felonies shall have been a crime of violence, as defined by Section 97-3-2,
shall be sentenced to life imprisonment, and such sentence shall not be reduced
or suspended nor shall such person be eligible for parole, probation or any
other form of early release from actual physical custody within the Department
of Corrections.

(Emphasis added). In 2003, Logan was sentenced to and served one or more years in a

Kentucky penal institution for the crime of fleeing or evading police, which is, undisputedly,

a felony in Kentucky. The plain language of section 99-19-83 does not require that the prior

convictions must also be felonies in Mississippi; rather, they must be felonies in the state

where the conviction occurred. Logan’s Kentucky conviction and sentence for felony

fleeing, coupled with a prior conviction and sentence of more than one year for robbery, also

14
in Kentucky, are sufficient to support his habitual-offender status.

¶29. Relying on Holland v. State, 587 So. 2d 848 (Miss. 1991), and caselaw from other

jurisdictions, the dissent concludes that Logan’s actions that led to a conviction for felony

fleeing in Kentucky would not be a felony in Mississippi; therefore, the conviction cannot

support Logan’s habitual-offender status. However, we find the dissent’s reliance on these

authorities is misplaced.

¶30. First, Holland is a death-penalty case that was reversed and remanded for resentencing

due to juror misconduct. Id. at 873. Addressing another issue raised by Holland, the

Mississippi Supreme Court further explained, in dicta, that “this Court feels compelled to

place the State on notice regarding a matter relating to the evidentiary sufficiency of the

aggravating circumstance” of Holland’s prior conviction in Texas for the rape of a child and

whether it involved the use or threat of violence such that it could be relied upon as an

aggravating circumstance for the death penalty. Id. at 874. As the dissent notes, the supreme

court went on to say that “this Court does not look to how that state characterizes the

question of whether the crime was one of violence[;] rather, the analysis must be done under

Mississippi law.” Id. As we stated above, these statements are dicta and do not have a

binding effect. See Taylor v. State, 122 So. 3d 707, 714-15 (¶20) (Miss. 2013). Therefore,

because Holland discusses a prior conviction in the context of an aggravating circumstance

for a sentence of death and not the habitual-offender statute, and the discussion regarding the

prior conviction is dicta, we find that Holland is inapplicable to the present case.

15
¶31. Further, as explained above, Mississippi’s habitual-offender statute is unambiguous;

thus, we do not see the need to consider other jurisdictions’ analyses of their own habitual-

offender statutes as the dissent would suggest. This issue is without merit.

b. Insufficient Indictment

¶32. Logan also argues that the trial court’s order amending his indictment to charge him

as a habitual offender does not comply with Rule 11.03. Rule 11.03(1) provides in pertinent

part: “The indictment must allege with particularity the nature or description of the offense

constituting the previous convictions, the state or federal jurisdiction of any previous

conviction, and the date of judgment.” However, the record is clear that Logan’s indictment,

as amended, contains the necessary information to support Logan’s status as a habitual

offender. Logan’s amended indictment described that, in Kentucky, he had been convicted

of felony fleeing on August 8, 2003, and he was sentenced to and served at least one year in

prison for that conviction. Logan was also convicted of robbery in Kentucky on August 8,

2003, and was sentenced to and served more than one year in prison. The State attached

numerous documents to its motion to amend Logan’s indictment, including: his indictments

describing the crimes with detail, his guilty-plea documents, his judgments of conviction, and

a Kentucky Court of Appeals opinion affirming his robbery conviction. Logan did not object

to the introduction of these documents and did not dispute the contents of the documents.

Logan also did not object to the sufficiency of his amended indictment until the present

appeal.

16
¶33. Again, we note that the dissent’s reliance on its cited authorities is misplaced. The

dissent relies on Heidelberg, 45 So. 3d 730, for the premise that the failure to attach certified

orders of prior convictions to an order amending an indictment is fatal. However, our

holding in Heidelberg better supports our finding that Logan’s indictment was sufficient.

We stated:

[T]here were no uncertainties when Heidelberg stood for sentencing. Prior to
trial, the State attached certified copies of Heidelberg’s two prior felony
sentencing orders to its motion to amend his indictment. The circuit judge
then ordered the indictment amended to reflect Heidelberg’s prior convictions
and habitual-offender status. The circuit court also incorporated an attachment
listing the certified sentencing orders into the amended indictment. Thus,
Heidelberg clearly had advance notice of the State's intent to seek the
enhanced sentence.

Id. at 733 (¶13). This is almost precisely what occurred in this case. Prior to trial, the State

moved to amend Logan’s indictment to reflect his habitual-offender status. As was detailed

above, the State attached a variety of documents to support the motion. While the trial court

did not expressly incorporate the documents in its order granting the State’s motion to amend

Logan’s indictment, the order did contain the following language referencing the motion to

amend: “The prior felony convictions and the sentences imposed, as alleged in said [m]otion

to [a]mend, if proven beyond a reasonable doubt, would subject [Logan] to sentencing

pursuant to [section] 99-19-83 . . . .” The crux of our holding in Heidelberg was that

“Heidelberg had sufficient notice and ample opportunity to challenge the qualifying

convictions but chose not to do so.” Id. at 734 (¶16). Based upon the State’s motion to

amend and the attached documents, plus the trial court’s order granting the motion in which

17
it references the motion and attached documents, Logan had sufficient notice of the

convictions the State was relying on and an opportunity to challenge these convictions.

Logan, like Heidelberg, did not challenge these prior convictions.

¶34. Because Logan’s amended indictment provided all the necessary information pursuant

to Rule 11.03, this issue is without merit.

c. Competent Evidence to Prove Habitual-Offender Status

¶35. Logan argues that the State failed to meet its burden of proving his habitual-offender

status because the pen packs were never formally introduced into evidence at the sentencing

hearing. Logan’s argument is procedurally barred because he did not raise it before the trial

court. Conner v. State, 138 So. 3d 143, 150 (¶19) (Miss. 2014). However, we will address

the merits regardless of the procedural bar. “The best evidence of a conviction is the

judgment of conviction.” Grayer v. State, 120 So. 3d 964, 969 (¶18) (Miss. 2013). In

Grayer, the court held:

In this case, although the State informed the circuit court that it had certified
copies of Grayer’s prior convictions and had provided copies to Grayer and his
counsel, it failed to place the certified copies into the record or to offer any
evidence to support Grayer’s habitual-offender status, other than a recitation
of his prior felony convictions. Simply put, the State failed to prove Grayer’s
prior convictions by competent evidence. Therefore, we find that the circuit
court committed error, rising to the level of plain error, by sentencing Grayer
as a habitual offender without evidence of his prior convictions.

Id. at (¶19).

¶36. The supreme court vacated Grayer’s sentence and habitual-offender status, and

remanded the case to the trial court for resentencing as a nonhabitual offender. Id. at 970

18
(¶22).

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

requested that the trial court consider evidence of Logan’s prior convictions that had been

attached to the State’s motion and also introduced into evidence at the guilt phase of trial,

including: (1) his judgments of conviction for a felony-fleeing-from-a-police-officer count,

a misdemeanor-assault count, and a robbery count, and (2) an opinion from the Kentucky

Court of Appeals affirming Logan’s convictions. The State called Greenwood Police Officer

Toby Meredith to testify that the identifying information in Logan’s Kentucky records was

the same as the identifying information that the Greenwood Police Department had for

Logan. The State admitted Exhibits S-32 and S-33, without objection. Exhibits S-32 and

S-33 consisted of a “resident record card” from the Kentucky Department of Corrections and

a notarized certificate from Robert Belen, the Assistant Branch Manager of Offender

Information Services at the Kentucky Department of Corrections, stating the resident record

card was a true and correct copy of the original records from his office. The resident record

card identified the robbery and fleeing/evading-police convictions along with their separate

cause numbers and sentences. Logan did not object to the introduction of the resident card

or to the oral reference to the convictions that were previously introduced into evidence at

the trial phase.

¶38. Based on the evidence that was presented and admitted regarding Logan’s prior

convictions, we find that the State produced sufficient evidence to support Logan’s habitual-

19
offender status. This issue is without merit.

III. JURY INSTRUCTION D-15

¶39. Logan argues that the jury instruction concerning the defense of duress or necessity

was improperly refused. Instruction D-15 read:

In this case, the defendant[,] Courtney Logan[,] contends that the acts charged
in the indictments[,] namely Aiding Escape and Kidnapping[,] were justified
due to duress or necessity.

“Legal justification” means that an otherwise criminal act may not be
punished, if that act was necessary in order to avoid a significantly greater evil.
The four elements of Mr. Logan’s necessity defense are:

1. That the threat or threats to Mr. Logan, and the fear which the threats
caused, were immediate, and involved death or serious bodily injury;

2. That Mr. Logan’s fear was welled-grounded [sic]. This means that Mr.
Logan had a good-faith belief in the imminence and severity of the
threat, and that belief must also have been objectively reasonable.

3. That there was no reasonable and legal opportunity to avoid or escape
the threatened harm; and

4. That Mr. Logan made a bona fide good-faith effort to surrender to
authorities after he reached a position of safety.

The State must prove all elements of the crimes of Aiding Escape and
Kidnapping beyond a reasonable doubt. This means that you may not find Mr.
Logan guilty of the crimes charged unless the State proves beyond a
reasonable doubt that at least one of the elements of his claimed defense of
necessity is not present.

¶40. Logan asserts that he only participated in Jackson’s escape because a threat was made

on his child. The trial court refused the instruction, finding that a threat of harm to a third

person does not support a duress defense. The trial court also determined that any threat

20
made on Logan’s child was not imminent. Moreover, the trial court found that Logan had

many opportunities to avoid the results.

¶41. “Regarding jury instructions, the trial court possesses considerable discretion.”

Young v. Guild, 7 So. 3d 251, 259 (¶23) (Miss. 2009). “A party is entitled to a jury

instruction if it concerns a genuine issue of material fact and there is credible evidence to

support the instruction.” Id. “While a party is entitled to jury instructions that present his

theory of the case, this entitlement is limited; the trial court may refuse an instruction which

incorrectly states the law, is covered fairly elsewhere in the instructions, or is without

foundation in the evidence.” Id.

¶42. For a defendant to show that he had “an objective need to commit a crime excusable

by the defense of necessity, he must prove three essential elements: (1) the act charged was

done to prevent a significant evil; (2) there was no adequate alternative; and (3) the harm

caused was not disproportionate to the harm avoided.” Stodghill v. State, 892 So. 2d 236,

238 (¶8) (Miss. 2005).

¶43. We find no error in the trial court exercising its considerable discretion in refusing

jury instruction D-15.

¶44. The necessity-defense theory is without foundation in the evidence that was presented

at trial. Logan’s testimony was unclear as to whether Jackson or Jackson Sr. made a threat

to harm Logan’s child. At trial, Logan testified that Jackson texted a picture of Logan’s child

with the message that the child “looked nice.” Logan described this message as a

21
“subliminal threat.” Certainly any potential threat by Jackson was not objectively reasonable

because he was in the custody of MDOC at the time the alleged threat was made.

¶45. Even though Logan testified that his uncle, Jackson Sr., was ruthless, we do not find

any objectively reasonable foundation in the evidence in support of Jackson Sr.’s threats to

harm Logan’s child if Logan did not go through with the escape plan. No threat made by

Jackson Sr. was identified at trial. No evidence was presented showing that Logan’s child

was in any specific danger. In addition, Logan testified that he did not know Jackson or

Jackson Sr. very well. Moreover, we do not find any evidence that Logan was without an

adequate alternative to committing the crimes. Logan drove several hours alone from

Kentucky to Mississippi to carry out this crime without attempting to contact authorities.

Accordingly, we find that the trial court did not abuse its discretion in refusing the

instruction.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

¶46. Logan argues he received ineffective assistance of counsel because counsel failed

and/or refused to investigate or challenge his extradition from Tennessee, and failed to assert

or preserve his right to a speedy trial. However, Logan’s brief acknowledges that this issue

cannot be adequately addressed without further outside-the-record development of the

surrounding facts. Logan raised this issue on direct appeal for the purpose of preserving it

for pursuit in postconviction proceedings. This Court “only acts upon matters contained in

the official record and not upon assertions in briefs.” Colenburg v. State, 735 So. 2d 1099,

22
1102 (¶6) (Miss. Ct. App. 1999). The State concedes that this issue is not ripe for appeal

because the record is not sufficient to address it. We therefore dismiss Logan’s claim of

ineffective assistance of counsel without prejudice so that Logan can raise the issue in a

petition for postconviction relief. Reed v. State, 118 So. 3d 157, 160 (¶12) (Miss. 2013).

CONCLUSION

¶47. We affirm the judgment of conviction of five counts of kidnapping, one count of

aiding escape, and one count of possession of a firearm by a convicted felon, and the

sentence of life imprisonment on each count.

¶48. THE JUDGMENT OF THE LEFLORE COUNTY CIRCUIT COURT OF
CONVICTION OF FIVE COUNTS OF KIDNAPPING, ONE COUNT OF AIDING
ESCAPE, AND ONE COUNT OF POSSESSION OF A FIREARM BY A
CONVICTED FELON, AND SENTENCE OF LIFE ON EACH COUNT, AS A
HABITUAL OFFENDER, WITH THE SENTENCES TO RUN CONSECUTIVELY
ALL 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 LEFLORE
COUNTY.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL,
FAIR AND WILSON, JJ., 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 respectfully dissent from the majority’s opinion on the issue of Logan’s habitual-

offender status. The majority is correct that Logan’s argument is procedurally barred because

he did not raise the argument before the trial court. Conner v. State, 138 So. 3d 143, 150

(¶19) (Miss. 2014). However, a defendant has a fundamental right of freedom from an

23
illegal sentence, and this Court may employ plain-error review if a defendant's substantive

or fundamental rights are affected. Id. at 150-51 (¶19).

¶50. Logan argues that the State failed to prove Logan’s habitual-offender status beyond

a reasonable doubt because Logan’s prior conviction for fleeing or evading police in

violation of Kentucky Revised Statutes Annotated section 520.095 did not constitute a prior

felony under Mississippi Code Annotated section 99-19-83 (Supp. 2014). I agree. Although

Logan’s prior conviction in Kentucky for fleeing or evading police as a pedestrian is

classified as a felony under Kentucky law, it would not constitute a felony under Mississippi

law, which the majority acknowledges. For that reason, I would find that the trial court erred

by sentencing Logan as a habitual offender.

¶51. Section 520.095 provides in pertinent part:

(1) A person is guilty of fleeing or evading police in the first degree:

....

(b) When, as a pedestrian, and with intent to elude or flee, the
person knowingly or wantonly disobeys an order to stop, given
by a person recognized to be a peace officer, and at least one (1)
of the following conditions exists:

1. The person is fleeing immediately after
committing an act of domestic violence as defined
in KRS 403.720 . . . .

....

(2) Fleeing or evading police in the first degree is a Class D felony.

Ky. Rev. Stat. Ann. § 530.095.

24
¶52. However, under Mississippi law, resisting or obstructing a lawful arrest as a

pedestrian would fall under Mississippi Code Annotated section 97-9-73 (Rev. 2014), which

is a misdemeanor. Specifically, section 97-9-73 provides:

It shall be unlawful for any person to obstruct or resist by force, or violence,
or threats, or in any other manner, his lawful arrest or the lawful arrest of
another person by any state, local or federal law enforcement officer, and any
person or persons so doing shall be guilty of a misdemeanor, and upon
conviction thereof, shall be punished by a fine of not more than Five Hundred
Dollars ($500.00), or by imprisonment in the county jail not more than six (6)
months, or both.

Id.

¶53. The Supreme Court’s decision in Holland v. State, 587 So. 2d 848, 874 (Miss. 1991),

is instructive on the issue of whether a prior conviction from a sister state qualifies as a

predicate for an aggravating circumstance under this state’s statutes. Specifically, the

question in Holland was whether a prior felony occurring in a sister state constituted a crime

of violence under Mississippi law. The Holland court held:

Where as here the conviction occurred in a sister state, this Court does not look
to how that state characterizes the question of whether the crime was one of
violence[;] rather, the analysis must be done under Mississippi law. For a
conviction to qualify as predicate for an aggravating circumstance under this
state's statutes, the conviction from the sister state must have been acquired
under a statute which has as an element the use or threat of violence against
the person or, by necessity, must involve conduct that is inherently violent or
presents a serious potential risk of physical violence to another.

¶54. Other jurisdictions provide guidance on this precise issue. The Alabama Court of

Criminal Appeals has held: “When the state seeks to use a defendant's out-of-state felony

convictions to enhance his sentence under [Alabama's Habitual Felony Offender Act], the

25
state must prove that the conduct for which the defendant was previously convicted

constituted a felony in Alabama when it was committed.” 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 may

qualify an out-of-state conviction as an enhancing prior felony by establishing that the

defendant was convicted under a particular subsection of a foreign statute, if that subsection

encompasses only conduct that would constitute a felony in Arizona."). Likewise, in Justice

v. Hedrick, 350 S.E.2d 565, 568 (W. Va. 1986), the West Virginia Supreme Court of Appeals

held: “[W]hether the conviction of a crime outside of West Virginia may be the basis for

application of [West Virginia’s Habitual Criminal Statute] depends upon the classification

of that crime in this State.” In support of its decision, the court noted: “Other jurisdictions,

in applying recidivist statutes, have determined that out-of-state felony convictions for

offenses which do not constitute felonies pursuant to their respective state statutes may not

be used for enhancement purposes.” Id. (citing Fletcher v. State, 409 A.2d 1254, 1255 (Del.

1979); People v. McIntire, 151 N.W.2d 187, 141 (Mich. Ct. App. 1967); People v.

Carpenteur, 236 N.E.2d 850, 851 (N.Y. 1968).

¶55. Applying the same reasoning of Holland and finding the above cases from other

jurisdictions persuasive, I would hold that when determining whether a prior conviction

constitutes a felony for purposes of the habitual-offender statute, the analysis must be done

under Mississippi law. Because one of the prior convictions used to meet the requirements

of section 99-19-83 would not constitute a felony conviction under Mississippi law, Logan

26
was improperly sentenced and should be resentenced as a nonhabitual offender.

¶56. Although not necessary to my decision, I will address Logan’s remaining arguments

regarding his habitual-offender status. Logan also argues that the trial court's order amending

his indictments to charge him as a habitual offender does not comply with Uniform Rule of

Circuit and County Court 11.03. Rule 11.03(1) provides in pertinent part: "The indictment

must allege with particularity the nature or description of the offense constituting the

previous convictions, the state or federal jurisdiction of any previous conviction, and the date

of judgment.” The trial court entered an order granting the State’s motion to amend the

indictments. However, the order simply stated, “the indictments in the above styled causes

are hereby amended to charge Courtney Logan as a Violent Habitual Offender pursuant to

U.C.C.R. [sic] 7.09 and 99-19-83 of the Mississippi Code of 1972, as amended.” The order

did not specify the prior convictions relied upon and did not attach the prior judgments of

convictions to its order. Although the State attached copies of Logan’s prior Kentucky

convictions to its motion to amend the indictments, it did not incorporate the attachment

listing the certified orders to the amended indictments as the trial court did in Heidelberg v.

State, 45 So. 3d 730, 732-34 (¶13) (Miss. Ct. App. 2010). Thus, the order amending the

indictments was not in compliance with Rule 11.03. See Vince v. State, 844 So. 2d 510, 516-

17 (¶¶16-20) (Miss. Ct. App. 2003) (finding plain error because the indictment failed to

comply with Rule 11.03).

¶57. Logan also argued that the State failed to meet its burden of proving his

27
habitual-offender status by competent evidence because the certified copies of his prior

judgments of conviction were never formally introduced into evidence at the sentencing

hearing. “The best evidence of a conviction is the judgment of conviction.” Grayer v. State,

120 So. 3d 964, 969 (¶18) (Miss. 2013). In Grayer, the State failed to place the certified

copies of the prior felony convictions into the record or to offer any evidence to support the

defendant’s habitual-offender status other than a recitation of his prior felony convictions.

Id. at (¶19). Consequently, the supreme court vacated Grayer’s sentence and

habitual-offender status because the State failed to prove Grayer’s prior convictions with

competent evidence, and remanded the case to the trial court for resentencing as a

nonhabitual offender. Id. at 970 (¶22).

¶58. At Logan’s sentencing hearing, the State orally requested that the trial court consider

and incorporate the evidence of Logan's prior convictions that had been entered into evidence

at the guilt phase of trial. Although the State offered a "resident record card" from the

Kentucky Department of Corrections and a notarized certificate stating the resident record

card was a true and correct copy of the original records, the certified copies of the prior

judgments of conviction were never formally introduced into evidence at the sentencing

hearing. The State represented that it had the certified copies of the convictions, but nothing

in the record reveals why these copies were not offered or received into evidence. See Vince,

844 So. 2d at 518 (¶25) (“A prosecuting attorney, intent on proving prior convictions, would

do well to heed this simple and straightforward advice from the Mississippi Supreme Court

28
rather than needlessly testing the limits of the rules of evidence by attempting to make do

with increasingly remote and less reliable methods of proof.”). Accordingly, the State should

have offered the certified copies of the convictions into evidence.

¶59. Moreover, it is evident that there was some uncertainty on the proper course to take

as it related to the proof required to prove Logan’s habitual-offender status. During the

sentencing hearing, the following exchange occurred:

By Mr. Jones: Judge, the violent habitual then present the two,
withdraw that and present the two judgment of
convictions[sic] that show his convictions for 99-19[-
]81, the nonviolent habitual[,] which would carry 10 on
each count day for day consecutive, and then I assume a
life sentence would in essence be day for day without
parole.

By Mr. Gore: I suggest that we continue sentencing until we’ve had a
chance to figure that out exactly.

By Mr. Jones: I would like to go forward today if the Court is inclined
to sentence without the benefit of - - I will withdraw the
violent habitual judge.

By the Court: Well, it just seems to me that, you know, customarily I’m
not sure what proof is required, but customarily you have
to have somebody identify this guy as being that guy.

....

By Mr. Gore: Since we are talking about day for day for the rest of his
life, my client is inclined to ask for a continuance until
we’re on solid ground with all of this. He’s not going
anywhere.

By Mr. Jones: He’s just been sentenced to four life sentences or about
to be - - five. I don’t see what in the world continuing

29
 sentencing would benefit anybody before now. It’s
simply if you find beyond a reasonable doubt, and you
know that, Judge, and I’ve got an officer. If you do, you
do; if you don’t, you don’t. He’s been put on notice of it.

By the Court: . . . So I think I’m gonna go ahead and proceed, so I’m
going to deny the request for a continuance.

(Emphasis added).

¶60. Recognizing the uncertainty surrounding the proof of Logan’s habitual-offender

status, defense counsel requested a continuance. However, the hearing proceeded and Logan

was sentenced as a violent habitual offender even though the State failed to introduce the

certified copies of the prior convictions entered into evidence. This failure was compounded

by noncompliance with Rule 11.03 and the State appearing to withdraw the violent-habitual

charge twice during the sentencing hearing.

¶61. For these reasons, I cannot say that Logan was properly sentenced as a habitual

offender under section 99-19-83. I would affirm the judgment of conviction for five counts

of kidnapping and sentence of life on each count, to run consecutively. I would also affirm

the judgments of conviction for the one count of aiding escape and one count of possession

of a firearm by a convicted felon. However, I would reverse Logan's sentence as a habitual

offender and remand for Logan to be resentenced as a nonhabitual offender.

30