        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-KA-01741-COA

ZACHARY COZART A/K/A ZACHERY                                             APPELLANT
COZART A/K/A ZACK COZAR

v.

STATE OF MISSISSIPPI                                                       APPELLEE

DATE OF JUDGMENT:                        11/25/2014
TRIAL JUDGE:                             HON. GERALD W. CHATHAM SR.
COURT FROM WHICH APPEALED:               DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  RALPH STEWART GUERNSEY
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                       JOHN W. CHAMPION
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF MANSLAUGHTER AND
                                         SENTENCED TO THIRTY YEARS IN THE
                                         CUSTODY OF THE MISSISSIPPI
                                         DEPARTMENT OF CORRECTIONS, WITH
                                         FIFTEEN YEARS SUSPENDED AND TEN
                                         YEARS OF POST-RELEASE SUPERVISION
DISPOSITION:                             AFFIRMED – 05/03/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      IRVING, P.J., FOR THE COURT:

¶1.   Zachary Cozart was tried before a DeSoto County jury for the capital murder of a

twenty-one-month-old child. The jury, pursuant to a flawed jury instruction offered by

Cozart, found him guilty of manslaughter, and the Desoto County Circuit Court sentenced

him to thirty years in the custody of the Mississippi Department of Corrections (MDOC),

with fifteen years suspended and ten years of post-release supervision. Feeling aggrieved,
Cozart appeals and argues that (1) he was erroneously sentenced pursuant to Mississippi

Code Annotated section 97-3-25(2)(b) (Rev. 2014), which provides a maximum sentence of

thirty years for the homicide of a child under the age of eighteen years by a person over the

age of twenty-one years, rather than pursuant to Mississippi Code Annotated section 97-3-

25(1) (Rev. 2014), which provides a twenty-year sentence for manslaughter;1 (2) the verdict

is against the sufficiency and overwhelming weight of the evidence; and (3) he received

ineffective assistance of counsel.

¶2.    Finding no error, we affirm.

                                           FACTS

¶3.    On July 1, 2010, Ethan Conner, the minor child of Maria Christina Sierra, Cozart’s

then girlfriend, died as a result of what authorities suspected was child abuse that had

occurred on June 25, 2010. On January 13, 2011, Cozart was charged by indictment with

capital murder under Mississippi Code Annotated section 97-3-19(2)(f) (Rev. 2014).2 The


       1
        When Cozart committed the offense, section 97-3-25 did not have any subsections
and read as follows:

       Any person convicted of manslaughter shall be fined in a sum not less than
       five hundred dollars, or imprisoned in the county jail not more than one year,
       or both, or in the penitentiary not less than two years, nor more than twenty
       years.

Miss. Code Ann. § 97-3-25 (Rev. 2006).
       2
           Section 97-3-19(2)(f) reads:

       The killing of a human being without the authority of law by any means or in
       any matter shall be capital murder . . . [w]hen done without any design to
       effect death by any person engaged in the commission of the crime of felonious
       abuse and /or battery of a child in violation of subsection (2) of [s]ection 97-5-

                                               2
indictment alleged that Conner’s death resulted from felonious child abuse by Cozart as

defined in Mississippi Code Annotated section 97-5-39(2) (Rev. 2006).3

¶4.    Cozart engaged in plea negotiations with the State that resulted in an agreed order4

reducing Cozart’s charge from capital murder to manslaughter under Mississippi Code

Annotated section 97-3-35 (Rev. 2014), which provides that “[t]he killing of a human being,

without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a

dangerous weapon, without authority of law, and not in necessary self-defense, shall be

manslaughter.” The agreed order and Cozart’s petition to enter an Alford5 plea of guilty to

manslaughter were filed July 10, 2013. On the same date, the circuit court accepted Cozart’s

plea of guilty and continued the matter for sentencing on September 12, 2013. However, the

sentencing did not occur as originally scheduled, as the matter was continued multiple times



       39, or in any attempt to commit such felony[.]

(Emphasis added).
       3
           When Cozart was indicted, section 97-5-39(2)(a) read, in pertinent part:

       Any person who shall intentionally (i) burn any child, (ii) torture any child or,
       (iii) except in self-defense or in order to prevent bodily harm to a third party,
       whip, strike or otherwise abuse or mutilate any child in such a manner as to
       cause serious bodily harm, shall be guilty of felonious abuse of a child and,
       upon conviction, shall be sentenced to imprisonment in the custody of the
       Department of Corrections for life or such lesser term of imprisonment as the
       court may determine, but not less than ten (10) years.

Miss. Code Ann. § 97-5-39(2) (Rev. 2006).
       4
        The order stated that it was entered upon the joint motion of Cozart and the district
attorney, although a copy of the motion is not in the record.
       5
           North Carolina v. Alford, 400 U.S. 25 (1970).

                                               3
at Cozart’s behest. In the meantime, on March 25, 2014, Cozart filed a motion to withdraw

his guilty plea. On May 26, 2014, Cozart and the State presented to the circuit court an

agreed order setting aside Cozart’s plea of guilty, which the circuit court executed. However,

the circuit court, for reasons not specified in the record, did not enter an order setting aside

the previously entered order that reduced the charges from capital murder to manslaughter.

¶5.    Cozart’s capital-murder trial commenced on October 27, 2014. During the jury-

instruction conference, Cozart’s trial counsel offered an instruction for manslaughter as a

lesser-included offense. The instruction, which we later discuss in greater detail, contained

the elements for child homicide as defined in section 97-3-25(2)(a)(i)-(ii). After the close

of the evidence and deliberations, the jury found Cozart guilty of manslaughter. Cozart filed

a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial,

which the circuit court denied. Following the denial of Cozart’s post-trial motion, the circuit

court sentenced him, under section 97-3-25(2)(b), to thirty years in the custody of the

MDOC, with fifteen years suspended and ten years of post-release supervision. This appeal

followed.

                                       DISCUSSION

       I.     Ex Post Facto Statute

¶6.    Cozart argues that the lesser-included-offense jury instruction offered by his trial

counsel, which echoed the elements found in section 97-3-25(2), altered his indictment and

subjected him to a harsher penalty. The subject jury instruction reads, in pertinent part:

       If you find from the evidence in this case, beyond a reasonable doubt to the
       exclusion of every other reasonable hypothesis other than that of guilt:


                                               4
       On or about June 25, 2010, [Cozart] did unlawfully[] and negligently by a
       reckless manner kill Ethan Conner, without malice, [that the act] was
       intentional and not accidental and [Cozart] was over the age of twenty-one
       (21) years and the victim was a child under the age of eighteen (18) years, then
       you shall find . . . Cozart[] guilty of manslaughter.

While maintaining that he could only be tried for manslaughter because the agreed order had

reduced the charge from capital murder to manslaughter, Cozart, citing Flowers v. State, 35

So. 3d 516 (Miss. 2010), also contends that both his due-process rights and the Ex Post Facto

Clause were violated because section 97-3-25(2) did not become effective until July 1, 2013.6

       6
           When Cozart was indicted, section 97-3-25 read as follows:

       Any person convicted of manslaughter shall be fined in a sum not less than
       five hundred dollars, or imprisoned in the county jail not more than one year,
       or both, or in the penitentiary not less than two years, nor more than twenty
       years.

Miss. Code Ann. § 97-3-25 (Rev. 2006). Section 97-3-25 was amended in 2013, and now
reads as follows:

       (1) Except as otherwise provided in this section, any person convicted of
       manslaughter shall be fined in a sum not less than Five Hundred Dollars
       ($500.00), or imprisoned in the county jail not more than one (1) year, or both,
       or in the custody of the Department of Corrections not less than two (2) years,
       nor more than twenty (20) years.

       (2)(a) A person is guilty of child homicide if:

                (i) The person is found guilty of manslaughter in circumstances
                where the killing, although without malice, was intentional and
                not accidental; and

                (ii) The perpetrator was over the age of twenty-one (21) years
                and the victim was a child under the age of eighteen (18) years.

       (b) A person found guilty of child homicide shall be imprisoned in the custody
       of the Department of Corrections for a term not to exceed thirty (30) years.


                                               5
He asserts that the application of the child-homicide statute in this case essentially amended

his indictment by requiring proof of child abuse, adding elements to the offense that he was

charged with, and eliminating the heat-of-passion element of manslaughter. Cozart also

asserts that his failure to raise, at trial, the deficiency of the indictment under which he was

convicted does not waive this issue on appeal.

¶7.    In response, the State argues that the order reducing the charge from capital murder

to manslaughter was a part of a procedural process to implement the plea deal, which was

not completed because Cozart reneged. The State also argues that to give credence to the

notion that the State must remain bound by any action that it had taken in implementing a

plea deal after the defendant has reneged on his part of the deal would allow a defendant to

start the process for a plea deal, wait for the charges to be reduced, and then withdraw from

the process. The State further argues that Cozart has waived his right to assert an ex post

facto violation. We agree with the State’s argument.

¶8.    As to Cozart’s argument that the State was bound to try him on the reduced charge,

we acknowledge that there is no language in the plea agreement tethering the decision to

reduce the capital-murder charge to Cozart’s agreement to plead guilty to the lesser

manslaughter charge. However, it is clear to us that the two were connected and interrelated.

First, the order reducing the capital-murder charge to manslaughter was an agreed order. If

the State wanted to reduce the charges without the benefit of a ea deal, it could have done so

on its own without an agreement from Cozart. Second, the agreed order and the plea



Miss. Code Ann. § 97-3-25 (Rev. 2014).

                                               6
agreement were filed on the same day. Third, at the conclusion of the State’s case, as a part

of the State’s rebuttal to Cozart’s motion for a directed verdict, the State mentioned that the

case was a capital-murder case. Cozart and his counsel remained mute. Had they been

operating under the perception that Cozart was on trial for manslaughter rather than for

capital murder, surely they would have said something then. Fourth, the jury instructions

made it clear that the charge that the jury was to consider was capital murder, and Cozart did

not raise an issue in his post-trial motion regarding the charge that he had been found guilty

of. Even the manslaughter instruction offered by Cozart referenced the charge of capital

murder as the charge for which he was being tried. Although Cozart takes the position that

his capital-murder charge was dismissed because the order reducing his charges was not

rescinded when his guilty plea was withdrawn, it is clear that Cozart’s charge was only

reduced to manslaughter pursuant to his plea agreement, and once the guilty plea was

withdrawn, his charge of capital murder was reinstated, even if the circuit court neglected

to enter an order rescinding the order that had reduced the charge from capital murder to

manslaughter. As such, we find no merit to Cozart’s contention that he should have been

tried on a manslaughter charge instead of a capital-murder charge.

¶9.    As to Cozart’s argument that he could not be sentenced for child homicide because

the crime of child homicide did not exist when Conner was killed, we agree with the State

that he has waived this argument. As mentioned, the manslaughter jury instruction that

Cozart’s trial counsel offered contained the elements of child homicide and instructed the

jury to find Cozart guilty of manslaughter if it found those elements. He did not offer a jury



                                              7
instruction on heat-of-passion manslaughter. Cozart argues that his case is similar to Flowers

and that his argument is not barred on appeal. We disagree. In Flowers, the Mississippi

Supreme Court reversed Flowers’s conviction because he was indicted for a crime that did

not exist at the time the alleged offense occurred. The statute that was in effect at the time

that Flowers committed the offense was later amended to include the offense that Flowers

had committed and which was the subject of his indictment. Flowers, 35 So. 3d at 519 (¶¶7-

8). Stated differently, the supreme court found that Flowers’s indictment was defective

because the crime stated in the indictment was nonexistent.7 Id. at 518-19 (¶6). That is not

the case here. Cozart’s indictment is not fatally defective; he was charged with capital

murder as a result of felonious child abuse, which was a crime at the time of the commission

of the offense and at the time of his indictment.8

¶10.   We find that our case is analogous to Barnett v. State, 725 So. 2d 797, 801-02 (¶24)

(Miss. 1998). In Barnett, Barnett was indicted for capital murder, and the available sentences


       7
          The supreme court stated that, despite the fact that the ex post facto issue was not
raised at trial, “Flowers’s due-process rights were disregarded and the Ex Post Facto Clause
was violated when he was convicted and sentenced for the crime of statutory rape, as his
alleged misconduct did not fall under the definition of statutory rape in effect at the time of
the offense . . . .” Flowers, 35 So. 3d at 518 (¶6). The supreme court reversed Flowers’s
conviction, holding that “the indictment failed to charge a crime under the statutory[-]rape
statute in effect at the time of the offense[, thereby making it] fatally defective.” Id. at 519
(¶¶6, 8).
       8
           Cozart’s indictment reads, in pertinent part:

       Cozart willfully, unlawfully, and feloniously, and without authority of law,
       killed and murder[ed] Ethan Conner, a human being under the age of eighteen
       (18) years old, while . . . Cozart [was] engaged in the commission of the crime
       of felonious abuse and/or battery of said child with or without any design to
       effect the death of Ethan Conner[.]

                                                8
were death or life in prison. Id. at 801 (¶21). Following Barnett’s indictment but prior to his

conviction and sentencing, the applicable statute was amended, making life in prison without

parole an additional sentencing option. Id. Although the statute providing the additional

sentencing option was not in effect when Barnett was indicted, the jury sentenced him to life

in prison without parole. Id. Barnett did not object to the sentencing at trial but argued on

appeal that his sentence was void because of the ex post facto application of the sentencing

statute. Id. The supreme court found that Barnett had waived his ex post facto-sentencing

claim because he failed to raise the issue at trial. Id. at (¶24). The court stated, “The

appropriate time for Barnett to have objected to the life[-]without[-]parole sentencing option

was at the point that the jury was given its instruction, at the latest. It is axiomatic that a

litigant is required to make a timely objection.” Id. at (¶22).

¶11.   Here, as stated, Cozart was aware that the manslaughter jury instruction introducing

the elements of child homicide would be given to the jury because he offered the instruction

himself, which implicates a point made by the Barnett court: “[I]t is also clear that [Barnett]

relied upon the option he now complains of[.]” Id. at (¶24). Like the defendant in Barnett,

Cozart not only relied upon the instruction that created the error, he offered the instruction.

Therefore, Cozart, like the defendant in Barnett, has waived his right to assert an ex post

facto violation. Consequently, this issue is without merit.

       II.    Weight and Legal Sufficiency of the Evidence

¶12.   Cozart argues that the weight and the legal sufficiency of the evidence were

overwhelmingly against the jury’s verdict. It is well established that



                                              9
       in considering whether the evidence is sufficient to sustain a conviction in the
       face of a motion for a directed verdict or for a judgment notwithstanding the
       verdict, the critical inquiry is whether the evidence shows beyond a reasonable
       doubt that the accused committed the act charged, and that he did so under
       such circumstances that every element of the offense existed; 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) (internal citation and quotation marks

omitted). In addition, the supreme court has stated:

       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.

Id. at 844 (¶18).

¶13.   We briefly discuss the facts supporting the jury’s verdict. At trial, Sierra testified that

after waking up on June 25, 2010, she went to Conner’s room and looked in on him as he

slept, stating that she did not notice anything unusual and that he was breathing. Sierra then

went to take a shower. A few minutes after she got into the shower, Cozart came in “yelling

that [Conner] was not breathing.” At that point, Sierra rushed out of the shower to find

Conner on the hallway floor right outside of his bedroom. Sierra stated that she asked Cozart

what happened and then called 911. Cozart informed her that “[Conner] fell out of the bed,

and he found him on the floor of his bedroom next to his bed.” During her testimony, Sierra

admitted that she never saw Conner on the floor next to his bed. Once an ambulance arrived,

Conner was taken to Baptist DeSoto Hospital in Southaven, Mississippi. Conner was later

transported to Le Bonheur Children’s Hospital in Memphis, Tennessee, where he remained

until his death on July 1, 2010. Following Conner’s death, the case was turned over to law



                                               10
enforcement for investigation, leading to Cozart’s indictment.

¶14.   Cozart argues that the identity of the child abuser cannot be identified from the

evidence presented. He contends that the State’s theory of how the incident leading to

Conner’s death occurred is inconsistent with the testimony of the State’s experts. Cozart

also argues that the expert witnesses created a much broader timeline of when the injuries

could have occurred. Cozart contends that the only logical inference that was established by

the record is that Conner was abused on Wednesday or Thursday before the Friday that he

was discovered by Cozart. In addition, he further argues that in closing argument, the State

gave a description of how the abuse occurred that is not supported by the evidence. For the

reasons that we will explain, we disagree.

¶15.   The record reveals that the State proceeded on the theory that while Sierra was in the

shower, Conner had gone to her room looking for her and was beaten by Cozart, who later

moved him to the hallway. The only people who were in the home with Conner on the day

of his injury were Sierra and Cozart. Cozart did not testify. As mentioned above, Sierra gave

testimony describing the incident and the actions that occurred. During her testimony, she

admitted that she had never seen Cozart “lay his hands on [Conner]” in a disciplinary manner

or strike him. She also testified that Conner had fallen and hit his head on other occasions,

including one time in March 2010, when he fell while he was taking a shower with her at her

aunt’s home. However, Sierra did not testify to anything that could be interpreted as

eliminating the possibility that Conner’s death had been caused by abuse from Cozart.

¶16.   In addition, there was expert-witness testimony from Doctor Karen Lakin, a medical



                                             11
director at Le Bonheur, who examined Conner and reviewed his records. Dr. Lakin testified

that Conner’s injury, referred to by her as a subarachnoid hemorrhage, was “acute,” meaning

that it was “very recent.” Dr. Lakin stated that Conner’s death was not a case of second-

impact syndrome, but rather, it appeared to be a case of “shaken baby syndrome,” which is

now referred to as “abusive head trauma.” On cross- examination, Dr. Lakin stated that acute

meant “within . . . between 48 and 72 hours at the very most.” There was also expert

testimony from Doctor James Caruso, the forensic pathologist who conducted an autopsy on

Conner. Dr. Caruso testified that Conner’s death was caused by “blunt force injuries of the

head” and that his “manner of death [was] homicide.” Dr. Caruso also described Conner’s

injury as “acute.” He defined acute as “occurr[ing] likely within hours to days prior to the

child losing consciousness.” On cross-examination, Dr. Caruso again stated that the cause

of Conner’s death was “[b]lunt force injuries of the head.”

¶17.   This court addressed a similar fact scenario in Rutland v. State, 60 So. 3d 187 (Miss.

Ct. App. 2010). In Rutland, Rutland was convicted of felonious child abuse without any

direct evidence of child abuse. When deciding whether the evidence was sufficient to

support the conviction, this Court stated:

       Since no direct evidence of child abuse was presented, the State based its case
       on circumstantial evidence from A.T.’s treating physicians and two social
       workers. The jury was instructed that a verdict based on circumstantial
       evidence “must be so strong as to exclude every other reasonable hypothesis
       other than that of guilt.” Considering the evidence in the light most favorable
       to the State, we find the evidence presented was sufficient to show, to the
       exclusion of every other reasonable hypothesis, that Rutland’s actions resulted
       in A.T.’s leg injuries. Both doctors testified that the possible scenarios given
       by Rutland for A.T.’s injuries were not plausible, and Rutland, who maintained
       that A.T. was constantly under her supervision, offered no other plausible

                                             12
       explanation for the injuries. We find that any rational juror could have found
       beyond a reasonable doubt that all of the elements of felonious child abuse
       were proven by the State.

Id. at 191 (¶16). When deciding whether the weight of the evidence was sufficient, this

Court stated:

       In situations where the State’s case is based wholly upon circumstantial
       evidence, the State is required to prove the defendant guilty beyond a
       reasonable doubt and to the exclusion of every reasonable hypothesis
       consistent with innocence. The jury was properly instructed on circumstantial
       evidence, and we find that the jury’s verdict is supported by the overwhelming
       weight of the evidence. Therefore, we find that this issue is without merit.

Id. at 192 (¶20) (internal citation omitted).

¶18.   Here, as explained above, the conviction was based on circumstantial evidence. The

State produced testimony from Sierra, who did not dispute that Cozart had comitted the

abuse. Although both expert witnesses gave a broad timeline while defining “acute,” both

witnesses agreed that the injury was “very recent.” In addition, Dr. Lakin referred to

Conner’s injuries as abusive head trauma, dispelling that it could have been second-impact

syndrome, which is what Cozart tried to prove was the cause of death. Also, Dr. Caruso

referred to Conner’s death as a homicide. As such, we find sufficient evidence to support

the jury’s verdict. Therefore, this issue is without merit.

       III.     Ineffective Assistance of Counsel

¶19.   Cozart argues that his trial counsel was ineffective. It is well established that “[i]n

order to prevail on an ineffective-assistance-of-counsel claim, a defendant must prove that

his attorney’s performance was deficient and that the deficiency was so substantial as to

deprive the defendant of a fair trial.” Dartez v. State, 177 So. 3d 420, 423 (¶19) (Miss. 2015)

                                                13
(internal citations omitted). In addition, the supreme court has stated that

       [appellate courts] look at the totality of the circumstances to determine whether
       counsel's efforts were both deficient and prejudicial. There is a strong but
       rebuttable presumption that counsel’s conduct falls within the wide range of
       reasonable professional assistance. Only where it is reasonably probable that,
       but for the attorney's errors, the outcome would have been different, will we
       find that counsel’s performance was deficient.

Id.

¶20.   Here, Cozart alleges that his trial court counsel’s introduction of and failure to object

to a jury instruction based on section 97-3-25 constitutes ineffective assistance of counsel.

Cozart also alleges that his trial court counsel’s failure to object to his being tried for capital

murder constitutes “professional misfeasance.” Cozart further alleges that his trial counsel’s

initial trial strategy of proving that Conner’s death was caused by second-impact syndrome

was not used due to the retirement of his expert, causing him to default to a strategy that

presented no reasonable hypothesis for Conner’s death.

¶21.   In response, the State argues that the things that Cozart complains of constitute

effective strategic decisions. The State points to the fact that Cozart’s trial counsel got the

prosecutor to agree to reduce the charges as part of a plea deal, and was able to get a

manslaughter jury instruction on a capital-murder charge without any direct evidence. We

agree with the State. Although Cozart maintains that his trial counsel failed to maintain his

theory of second-injury syndrome after Cozart’s expert witness retired months before the

trial, we note that Cozart’s counsel conducted effective cross-examination. It is clear that

Cozart’s trial counsel had clearly studied the case and effectively prepared for both pretrial

and trial matters. Cozart has failed to prove that his trial court counsel’s performance was

                                                14
deficient. As such, this issue is without merit.

¶22. THE JUDGMENT OF THE DESOTO COUNTY CIRCUIT COURT OF
CONVICTION OF MANSLAUGHTER AND SENTENCE OF THIRTY YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH
FIFTEEN YEARS SUSPENDED AND TEN YEARS OF POST-RELEASE
SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLANT.

    LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR AND
GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN
PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.




                                             15
