IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2023-KA-00351-COA
MICHAEL LONG A/K/A MICHAEL T. LONG APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 07/20/2022 TRIAL JUDGE: HON. CLAIBORNE McDONALD COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JIM L. DAVIS III ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: PARKER ALAN PROCTOR JR. DISTRICT ATTORNEY: HALDON J. KITTRELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 10/01/2024 MOTION FOR REHEARING FILED:
EN BANC.
WESTBROOKS, J., FOR THE COURT:
¶1. Michael Long appeals from his conviction and sentence in the Lamar County Circuit
Court of possession of a controlled substance with the intent to distribute. Following trial,
the circuit court sentenced Long as a second subsequent offender and a habitual offender to
serve fifteen years in custody without eligibility for parole. On appeal, Long raises the issues
of a Batson violation, sufficiency of the evidence, spoliation of evidence, and ineffective
assistance of counsel. After a review of the record, we affirm Long’s conviction and
sentence.
FACTS AND PROCEDURAL HISTORY ¶2. On January 18, 2019, Officer John Brown was traveling north on Highway 589 in
Lamar County, Mississippi. Officer Brown observed a tan Chevrolet S-10 pickup truck
swerving in the roadway, and it swerved off the road to the right side, catching his attention.
Officer Brown ran the tag, and it came back registered to a “F.D. or Phyllis Roberson, with
an expiration date of 2017.” After running the tag through dispatch, Officer Brown activated
his blue lights while following behind the tan S-10, attempting to stop the vehicle. The
pickup truck initially pulled over to the right side of the road, and Officer Brown followed
behind him to conduct a traffic stop. As Officer Brown positioned his vehicle behind the
pickup truck off the side of the road, the truck pulled back out onto the highway, still going
northbound. After re-entering the road, Officer Brown then initiated his audible siren, along
with the blue lights. The pickup truck did not stop again until a little over a mile after the
initial merge off the road.
¶3. Once the tan S-10 finally came to a stop, Officer Brown exited his vehicle and began
approaching the truck. At the same time, Long quickly exited the truck, and Officer Brown
observed a pocketknife fall to the ground. For his safety, Officer Brown ordered Long to the
rear of the truck and conducted a quick pat-down search. Officer Brown observed that Long
appeared to be agitated and very excited. Long would not engage in conversation and kept
his body posture turned toward the driver’s side door of the vehicle. Officer Brown asked
Long why he did not stop sooner, and Long made comments claiming he had nowhere to
pullover. Officer Brown responded that Long initially began to stop but then pulled off and
kept going. Officer Brown then obtained verbal consent from Long to search the vehicle, but
2 before he began the search, Deputy Zachary Ruple arrived at the scene with his drug-sniffing
canine.
¶4. Instead of acting on the verbal consent, Officer Brown requested Deputy Ruple to use
the canine to conduct an “open air-sniff” around the exterior of the truck. The canine showed
a positive alert for drugs near the passenger side door, so Officer Brown deemed a search of
the vehicle was warranted. By this point, Deputy Jason Pohlman and Investigator Scott
Wagner had also arrived on the scene. Deputy Pohlman searched the driver’s side of the
pickup truck, while Investigator Wagner searched the passenger side. During this time,
Officer Brown was writing Long citations for an expired tag and expired driver’s license.
¶5. While searching the front passenger side, Investigator Wagner found a digital scale
and a black zipper-style bag that had individual sandwich bags inside it. Investigator Wagner
stated the black bag was unzipped, sitting on the seat, and could be immediately seen without
opening the door. Investigator Wagner noticed that the scale had what appeared to be a
crystalized residue on it, which from his training and experience gave him reason to believe
it was crystal methamphetamine residue on the scale. On the driver’s side of the truck,
Deputy Pohlman located a black Wiley X sunglass case in the rear door panel that contained
a glass pipe commonly used for smoking methamphetamine, and he found a clear plastic bag
with 14.83 grams of a crystal-like substance inside it. Adrian Hall, a forensic scientist from
the Mississippi Forensics Laboratory, verified that the 14.83 grams of crystal substance found
in the truck Long was driving was in fact methamphetamine. Officer Brown, Investigator
Wagner, and Deputy Pohlman all testified that the S-10 pickup truck was a very small truck,
3 and Officer Brown and Deputy Pohlman confirmed that Long could have touched the
methamphetamine and paraphernalia within the truck by merely reaching out.
¶6. Once Investigator Wagner and Deputy Pohlman concluded their search, Officer
Brown placed Long under arrest for the items that were discovered during the search. Long
was charged with possession of a controlled substance with the intent to distribute. The
charge included intent to distribute, not just possession, because of the amount of
methamphetamine that was found as well as the paraphernalia items that were discovered.
¶7. On October 8, 2019, the grand jury indicted Long as a habitual offender for possession
of a controlled substance with the intent to distribute. The indictment was later amended to
allege that Long was a second subsequent drug offender and therefore subject to enhanced
penalties. See Miss. Code Ann. § 41-29-147 (Rev. 2018). Following the indictment, Long
had a suppression hearing regarding the evidence that was obtained during the traffic stop.
At the hearing, the motion to suppress was ultimately denied. The case then proceeded to
trial.
¶8. Before trial began, the court started the voir dire process to select the jury. The court
explained the duties of the jury to the potential members and asked questions to make sure
a fair and impartial jury would be empaneled. The State then conducted its voir dire
inquiries, followed by the defense’s voir dire inquiries. The lawyers for the State and for
Long each asked questions to determine if the potential jurors knew anyone involved in the
case, had any biases regarding any persons or matters in the case, or if there was any reason
they should not be involved in this case. The court struck three members for cause.
4 ¶9. Once voir dire concluded, an in-chambers jury selection began. The State and the
defense were each granted six peremptory challenges. They were also both granted one
additional strike on the alternates. The State used five of its peremptory challenges as well
as its one permitted strike on the alternates. The State struck juror one, juror eight, juror
nine, juror nineteen, juror twenty, and juror twenty-four. All six of these jurors were white.
The defense used five of its peremptory strikes and chose not to use its additional alternate
strike. The defense struck juror three, juror five, juror thirteen, juror fifteen, and juror
seventeen. Three of these five jurors that the defense struck were black.
¶10. During the in-chambers jury selection, when either side would raise a peremptory
challenge, the attorneys did not give an explanation for the strike, nor did the court or
opposing counsel inquire further as to why they were asserting the strike. Further, no
statements were made regarding any of the removed jurors’ race or requests for a race-neutral
explanation during the in-chambers selection.
¶11. At trial, the State brought Officer Brown, Investigator Wagner, and Deputy Pohlman
in to testify about their encounters with Long on the day of the arrest. The State also brought
in forensic scientist Hall to testify about the nature of the crystalize substance that was found
in the vehicle. After the State rested, Long moved for a directed verdict alleging that the
State had nothing to prove beyond a reasonable doubt that he possessed methamphetamine
with the intent to distribute. Long also argued that the State did not even meet its burden to
prove he committed the lesser-included offense of possession of a controlled substance.
However, the State argued that the proof established Long had constructive possession of the
5 methamphetamine found and the intent to sell the methamphetamine because of the quantity
of drugs found along with “the baggies and scales, which are commonly used to repackage
and sell.” The court denied Long’s motion for a directed verdict and held that “fair-minded
people in exercise of impartial judgment could find the defendant guilty on each of the
elements of the offense beyond a reasonable doubt.” Long rested without putting on any
testimony.
¶12. The jury subsequently convicted Long of possession of a controlled substance with
the intent to distribute. Long filed a motion for a new trial or, in the alternative, judgment
notwithstanding the verdict (JNOV). The hearing began on October 21, 2022, but was
continued until February 17, 2023, to allow the State time to identify persons on jailhouse
phone calls that had been submitted for the motion hearing in October. This post-trial JNOV
motion was denied. Before this Court, Long raises the issues of a Batson violation, the
denial of a directed verdict/JNOV, the denial of a dismissal of charges or, in the alternative,
a spoliation jury instruction, and ineffective assistance of counsel.
STANDARD OF REVIEW
¶13. This Court will not overrule a trial court’s Batson ruling unless the record indicates
that the ruling was clearly erroneous or against the overwhelming weight of the evidence.
Miles v. State, 346 So. 3d 840, 842 (¶5) (Miss. 2022). “[T]he standard of review is de novo
when the issue is one of law and not of fact.” Forrest Gen. Hosp. v. Humphrey, 136 So. 3d
468 (¶14) (Miss. Ct. App. 2014). The denial of a motion for a directed verdict or judgment
notwithstanding the verdict (JNOV) challenging the legal sufficiency of the evidence is
6 reviewed de novo. Williams v. State, 334 So. 3d 68, 72-73 (¶4) (Miss. 2022). We also
review whether a defendant has received ineffective assistance of counsel under a de novo
standard because it is a question of law. Taylor v. State, 167 So. 3d 1143, 1146 (¶5) (Miss.
2015). We review the rulings on jury instructions here under an abuse-of-discretion standard.
Roby v. State, 183 So. 3d 857, 872 (¶63) (Miss. 2016).
DISCUSSION
I. Batson Challenge
¶14. Long argues a Batson violation occurred when his trial counsel struck three black
jurors. See Batson v. Kentucky, 476 U.S. 79, 96-98 (1986). This argument is procedurally
barred because he did not raise this issue at trial. The Mississippi Supreme Court has held
that “[w]hen a defendant fails to raise a Batson challenge at trial, he or she is procedurally
barred from doing so on direct appeal.” Lofton v. State, 248 So. 3d 798, 812 (¶52) (Miss.
2018).
¶15. In Lofton, a similar issue arose when “[d]uring voir dire, [the defendant] used his own
peremptory challenges to strike all African-American jurors on the panel.” Id. at (¶51)
(emphasis added). The defendant did not raise any Batson challenges at any point during
voir dire or during trial. Id. at (¶52). In Lofton, our supreme court held that he was
procedurally barred from bringing this issue, but if it were to be viewed on the merits, it
would not succeed because he could not “claim error about a perceived problem he created.”
Id.
¶16. Notwithstanding the procedural bar on this issue, Long’s claim is without merit.
7 Again, this Court applies a highly deferential standard of review to a trial court’s Batson
rulings. Miles, 346 So. 3d at 842 (¶5). We follow the standard set by the United States
Supreme Court, which states that “a trial court’s ruling on the issue of discriminatory intent
must be sustained unless it is clearly erroneous.” Snyder v. Louisiana, 552 U.S. 472, 477
(2008). Great deference is given to a trial court’s finding of whether a peremptory challenge
was race-neutral “because finding that a striking party engaged in discrimination is largely
a factual finding.” H.A.S. Elec. Contractors Inc. v. Hemphill Const. Co., 232 So. 3d 117, 123
(¶15) (Miss. 2016) (citing Berry v. State, 802 So. 2d 1033, 1038 (¶14) (Miss. 2001)).
¶17. Long, a white male, contends that the State and the trial court had the responsibility
to raise the issue of a Batson violation at trial and failed to do. However, there is no
requirement that the State and trial court must “of their own accord, uncover and resolve all
facts and circumstances that may bear on whether a peremptory strike was racially motivated
when the strike’s challenger has not identified those facts and circumstances.” Clark v. State,
343 So. 3d 943, 962 (¶55) (Miss. 2022). Long’s only support is a comparative juror analysis,
which he did not present to the trial court or anytime prior to appeal. On this issue, the
Mississippi Supreme Court has held that unless extraordinary facts of the case exist, “rebuttal
evidence and arguments not presented to the trial court will not be considered on appeal.”
Id. at 961 (¶54). Our supreme court agreed with the Fifth Circuit and explained: “[t]here is
no established requirement that a trial court must conduct a comparative juror analysis when
one is not requested, and there is no requirement that a reviewing court must conduct one for
the first time on appeal.” Id. at 962 (¶56) (citing Chamberlin v. Fisher, 885 F.3d 832, 840
8 (5th Cir. 2018)).
¶18. Thus, Long’s argument that his trial counsel committed a Batson violation is both
procedurally barred and without merit.
II. Directed Verdict and Post-Trial Motions
¶19. Long’s next argument is that the trial court erred in not granting his motion for a
directed verdict. In his motion to the trial court, Long asserted that the State did not prove
beyond a reasonable doubt that he possessed methamphetamine with the intent to distribute.
He also argued that the State did not even meet its burden to prove beyond a reasonable
doubt the lesser-included offense of possession of a controlled substance.
¶20. “To establish possession of a controlled substance, the State must produce evidence
that a defendant (1) was aware of the presence of a substance, (2) was aware of the character
of the substance, and (3) was consciously and intentionally in possession of the substance.”
Williams, 334 So. 3d at 73 (¶5). Long asserted that the State did not have evidence to
establish that he was aware of the nature and existence of the controlled substance and that
he had conscious control over it, they merely argued proximity. During Long’s hearing on
the motion for a new trial or JNOV, he testified that the truck he was driving when he was
pulled over did not actually belong to him and that he was borrowing it from someone he
worked with. It was not until after his initial trial that he learned the truck belonged to a
woman named Meaghan Holsen.
¶21. The State countered Long’s assertion that the State did not prove its case beyond a
reasonable doubt, stating “that proximity is evidence of constructive possession, along with
9 evidence of paraphernalia items having to do with methamphetamine laying out in the open
beside the driver of this vehicle, Michael Long.” “To establish constructive possession, the
drug simply has to be found near the defendant ‘in a place over which the defendant
exercises dominion or control.’” Fontenot v. State, 110 So. 3d 800, 804 (¶9) (Miss. Ct. App.
2012) (quoting Glidden v. State, 74 So. 3d 342, 348 (¶20) (Miss. 2011)).
¶22. The State also provided evidence that Long was aware of the nature of the substance
found, having been convicted for other methamphetamine-related crimes in 2004, 2012,
2016, and 2022, with the 2022 conviction also including an intent to resell. The State further
argued that it had proved Long had the methamphetamine “in his possession or under his
conscious control under his dominion and control through the testimony of law enforcement
officers as to where they located the methamphetamine.”
¶23. Lastly, the State argued it had “proven constructive possession of the
methamphetamine, as well as the intent to sell the methamphetamine, given the amount being
more than personal use, the baggies and scales, which are commonly used to repackage and
sell.” Officer Brown testified that Long was charged with intent to distribute because of the
amount of methamphetamine that was found and the paraphernalia items that were located.
When the State questioned Officer Brown as to whether 14 grams is more than personal use
amount, Long objected and the court sustained this objection stating that “the jury can decide
whether or not it’s personal use.” The trial court denied the relief requested, finding “that
a review of the evidence reveals that it is of such quality and weight that a reasonable fair-
minded people in exercise of impartial judgment could find the defendant guilty on each of
10 the elements of the offense beyond a reasonable doubt.”
¶24. In Long’s brief, he alleges that the methamphetamine was not within his reach or
domain and control; however, multiple officers who were on the scene and conducted the
investigation of the truck testified during trial that the truck was very small and that someone
could touch the back wall of the vehicle from the front seat. Officer Brown and Deputy
Pohlman both testified specifically that someone sitting in the driver seat would be able to
reach out and put his or her hands where the crystal-like substance was found. The
crystalized substance was confirmed by the Mississippi Forensics Laboratory to be 14.83
grams of methamphetamine. Further, Long was the only one in the vehicle and the one who
had control over the vehicle at the time of his arrest.
¶25. Investigator Wagner testified that on the passenger side of the vehicle sitting on the
seat there was a black-zipper bag that was visible from plain-view without even opening the
truck door. Inside of this bag, Investigator Wagner located a digital scale and individual
sandwich bags, all of which had a residue of a crystalized substance. Investigator Wagner
also testified that the sandwich bags he located are commonly used for “prepackaging illegal
narcotics.” When the forensic scientist Hall testified at trial, he informed the court that he
only was given the crystalized substance to conducting testing on, not any of the
paraphernalia; however, he went on to say that when the substance itself had been tested and
was proved to be methamphetamine, it is not common practice for them to test the
paraphernalia that was found unless the paraphernalia is the only evidence in the case.
¶26. In this instance, we find that the trial court did not err in denying Long’s requests for
11 a directed verdict or JNOV considering all the evidence that was presented to the court.
There is sufficient evidence to prove that Long was in constructive possession of the
methamphetamine due to the location of the substance and paraphernalia as well as the
accessibility to it all from the driver seat where Long was. Even though there was testimony
that the truck did not belong to Long, the evidence proved Long had dominion or control
over the methamphetamine because he was the only person in the vehicle at the time.
Further, because of his prior charges relating to methamphetamine it can be concluded that
Long was aware of the nature of the substance that was located in the truck. Also regarding
Long’s prior convictions, combined with the amount of methamphetamine that was found,
the jury had enough information to determine whether Long had an intent to distribute.
Therefore, we find that the trial court did not err in denying Long’s requests for a directed
verdict or JNOV because a rational jury could find beyond a reasonable doubt that Long was
in constructive possession of the methamphetamine. See Williams, 334 So. 3d at 75 (¶11).
III. Missing Photographs
¶27. The next issue Long presents regards missing photographs law enforcement took of
the truck and the scene of the arrest. Long argues that because of the missing photographs,
his charges should have been dismissed, or the court alternatively should have given a
spoilation jury instruction. However, Long did not bring the issue before the trial court
anytime before appeal. “Failure to raise an issue at trial bars consideration on an appellate
level.” McKnight v. State, 187 So. 3d 635, 645 (¶24) (Miss. Ct. App. 2015) (quoting Parisi
v. State, 119 So. 3d 1061, 1066 (¶19) (Miss. Ct. App. 2012)). Thus, he is procedurally barred
12 from raising the issue on appeal now. Further, the Mississippi Supreme Court has held in
instances where the defendant “argue[d] that, although not requested by defense counsel, the
trial court erred by failing to instruct the jury sua sponte as to the unreliability of eyewitness
identifications” that “if an issue or objection was not raised at trial, it is procedurally barred.”
Corrothers v. State, 148 So. 3d 278, 304 (¶59) (Miss. 2014).
¶28. Notwithstanding the procedural bar, this issue also lacks merit. Long argues that the
photographs that were lost were significant evidence for his defense. He alleges in his brief
that the photographs would have shown he could not have reached the methamphetamine
from where he was sitting. Our supreme court has clarified:
[T]he following is required in order to find a due process violation by the State in a preservation of evidence case: (1) the evidence in question must possess an exculpatory value that was apparent before the evidence was destroyed; (2) the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; and (3) the prosecution’s destruction of the evidence must have been in bad faith.
State v. McGrone, 798 So. 2d 519, 523 (¶11) (Miss. 2001). Long cites this case in his brief
but includes a portion of the concurring opinion to support his argument, which reads, “[B]ad
faith becomes irrelevant when the search for the truth is the task at hand.” Id. at 524 (¶17)
(Mills, J., concurring). But that is not the court’s holding in that case. The majority opinion
clearly held “that destruction of evidence in bad faith is a requirement for a due process
violation based on the State’s failure to preserve evidence.” Id. at 523 (¶13). The majority
continued only to add that “[w]here the State’s actions absolutely prevent a defendant in a
criminal case from presenting proof on this issue, we will consider the requirement of bad
faith to have been proven.” Id.
13 ¶29. Long does not satisfy any element of the standard set forth by the Mississippi Supreme
Court in McGrone. The first prong of the test set forth in McGrone is that “the evidence in
question must possess an exculpatory value that was apparent before the evidence was
destroyed.” Id. at (¶11). In this instance, when the photographs were allegedly taken of the
truck Long was driving, it was not apparent that they possessed an exculpatory value. In
light of the other physical evidence that the officers found in the truck, the photographs did
not possess an apparent exculpatory value.
¶30. The next prong is proving that the defendant could not reasonably obtain any
comparable evidence to the evidence that was destroyed. At trial, Officer Brown,
Investigator Wagner, and Deputy Pohlman all testified that the truck was very small and that
a person could touch the back wall of the vehicle from the front seat. Officer Brown and
Deputy Pohlman testified, specifically, that someone sitting in the driver’s seat would be able
to reach out and put his hands where the crystal-like substance was found. All their
testimony served the purpose of evidence to show that Long could in fact reach the back door
panel where the methamphetamine was found.
¶31. Further, the truck was not destroyed, and nothing was presented at trial to suggest that
Long could not have obtained pictures of the truck he was driving. Long had the opportunity
to present his own witnesses to testify at trial or provide the court with pictures of that exact
truck or pictures of the same make and model to demonstrate the size of the truck, yet he
chose not to do any of these things. Nothing in the record suggests that the State’s actions
absolutely prevented Long from presenting proof on the issue.
14 ¶32. Lastly, and most importantly, to satisfy the standard set forth in McGrone, there needs
to be a showing that the destruction of the evidence was done in bad faith. Bad faith is
defined as “not simply bad judgment or negligence, but rather conscious doing of a wrong
because of dishonest purpose or moral obliquity; it is different from the negative idea of
negligence in that it contemplates a state of mind affirmatively operating with furtive design
or ill will.” Murray v. State, 849 So. 2d 1281, 1286 (¶19) (Miss. 2003) (quoting Black’s Law
Dictionary 139 (6th ed. 1990)).
¶33. Here, Officer Brown testified that in his practice, when he takes photos of a crime
scene, he uses the police department’s cell phone. He further testified that the photos
missing were a result of the police department getting new cell phones. When the
department received new phones, the information and photographs were erased on the old
ones before they were replaced. Officer Brown testified that all this occurred before he
downloaded the photographs to the department’s system. Officer Brown admitted this was
all an oversight on his part. This action would more likely be found as bad judgment or
negligence, which does not constitute bad faith. There is no proof or reason to infer that the
photographs went missing consciously because of a dishonest purpose of moral obliquity.
¶34. Thus, because Long’s allegations that the missing photographs warranted a dismissal
of his charges or a spoilation jury instruction were not brought anytime prior to appeal and
also do not satisfy the standard set forth by our supreme court, the issue is procedurally
barred and without merit.
IV. Ineffective Assistance of Counsel
15 ¶35. Lastly, Long argues that his trial counsel rendered an ineffective assistance of counsel.
He claims his trial counsel (1) violated Batson, (2) should have moved to dismiss the case
due to the missing photographs, and (3) should have offered a spoilation jury instruction.
¶36. “It is unusual for this Court to consider a claim of ineffective assistance of counsel
when the claim is made on direct appeal . . . because we are limited to the trial court record
in our review of the claim[,] and there is usually insufficient evidence within the record to
evaluate the claim.” Aguilar v. State, 847 So. 2d 871, 878 (¶17) (Miss. Ct. App. 2002).
Thus, we typically review ineffective assistance of counsel claims on direct appeal when “[1]
the record affirmatively shows ineffectiveness of constitutional dimensions, or [2] the parties
stipulate that the record is adequate and the Court determines that findings of fact by a trial
judge able to consider the demeanor of witnesses, etc.[,] are not needed.” Bell v. State, 202
So. 3d 1239, 1242 (¶12) (Miss. 2016) (quoting Read v. State, 430 So. 2d 832, 841 (Miss.
1983)).
¶37. If “neither party stipulates to the record’s adequacy on this point, we must determine
whether the record affirmatively shows ineffectiveness of constitutional dimensions.” Payne
v. State, 282 So. 3d 432, 439 (¶22) (Miss. Ct. App. 2019) (citing Williams v. State, 228 So.
3d 949, 952 (¶12) (Miss. Ct. App. 2017)). We will also resolve ineffective assistance of
counsel claims on direct appeal when the record affirmatively shows that the claims are
without merit. Welch v. State, 361 So. 3d 1278, 1281 (¶13) (Miss. 2023) (quoting Ross v.
State, 288 So. 3d 317, 324 (¶29) (Miss. 2020) (citing Swinney v. State, 241 So. 3d 599, 613
(Miss. 2018); Ashford v. State, 233 So. 3d 765, 779-81 (Miss. 2017); M.R.A.P. 22)). But we
16 may only consider “an ineffectiveness claim on direct appeal if the presented issues are based
on facts fully apparent from the record.” Dartez v. State, 177 So. 3d 420, 423 (¶18) (Miss.
2015). If an ineffective assistance claim is raised on direct appeal, and we find the record
is incomplete, “the appropriate procedure is to deny relief, preserving the defendant’s right
to argue the issue through a petition for post-conviction [collateral] relief (PCR).” Id.
¶38. In this issue at hand, the State and Long do not stipulate that the record is complete.
The State actually explicitly states that it does not stipulate that the record is adequate for this
Court to review Long’s ineffective assistance of counsel claim. Further, we do not find the
record affirmatively shows ineffectiveness of constitutional dimensions or lack of merit.
Therefore, we decline to address this issue, and Long may instead pursue the claim in a
properly filed PCR motion.
CONCLUSION
¶39. Long’s Batson claim and his claim that his case should have been dismissed, or that
a spoliation jury instruction should have been given, are procedurally barred.
Notwithstanding the procedural bars, the arguments lack merit. We find the trial court did
not err by denying Long’s requests for judgment notwithstanding the verdict. Finally, Long’s
ineffective assistance of counsel claim will not be addressed by our Court and, instead, may
be pursued in a PCR motion. Accordingly, we affirm Long’s conviction and sentence.
¶40. AFFIRMED.
BARNES, C.J., CARLTON, P.J., McDONALD, LAWRENCE, McCARTY AND SMITH, JJ., CONCUR. WILSON, P.J., AND EMFINGER, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.