author: KING, P.J.,

text:
    David WHITEFOOT and Elena Whitefoot, Appellants, v. BANCORPSOUTH BANK F/K/A Bank of Mississippi, Appellee.
    No. 2001-CP-01753-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.
    Rehearing Denied Sept. 30, 2003.

      David Whitefoot, Appellant, pro se.
    Elena Whitefoot, Appellant, pro se.
    Les Alvis, Tupelo, Pat Caldwell, attorneys for Appellee.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   KING, P.J.,

for the Court.

¶ 1. Bank of Mississippi, now known as BancorpSouth, filed suit in the Chancery Court of Clay County seeking reformation of the legal description of property used as collateral for a bank loan by the appellants, David and Elena Whitefoot, formerly known as David and Linda Jones. The court ruled in favor of the Bank and directed that a survey be made to create a legal description comporting with the intent of the parties. Final judgment was entered on August 29, 2001, approving the legal description derived from the survey, reforming all deeds of trust and authorizing the Bank to enforce its deeds of trust according to their terms, as reformed.

¶ 2. The Whitefoots filed an appeal after the chancery court denied their Rule 59 motion for relief from judgment.

¶ 3. The Whitefoots raise the following assignments of error:

1. Whether the court erred because its findings of fact and conclusions of law are manifestly wrong, and not supported by the evidence in the case.

2. Whether the court erred because it used the wrong standard of review in judging the case.

3. Whether the court erred because it allowed the Bank to argue the case on a different set of facts, and argue a different standard of review from that claimed in the initial complaint.

4. Whether the court erred by its order to reform the Whitefoots’ thirty two acre tract against an unnecessary party without interest, instead of against real and necessary parties with interest, and erred by not including all necessary parties on both three and thirty two acre tracts reformations.

5. Whether the court erred by not basing the case on the intent revealed by the evidence in the 1997 renewal, instead of basing the case on past intent.

6. Whether the court erred by not considering the 10 year statute of limitations to reform a deed because of a parties’ own mistake, negligence, or oversight, according to 15-1-7, of the Mississippi Code of 1972.

7.Whether the court erred by entering judgment against, or one that would affect the Whitefoots’ thirty two acre homestead, because the thirty two acres was declared a homestead years before judgment entered.

This Court finds no error and affirms.

FACTS

¶ 4. The Whitefoots, formerly the Joneses, own thirty-five acres in Clay County, Mississippi. The subject of this appeal is a three acre tract that was carved out of the total acreage by the Farmers Home Administration in 1981. The FHA financed the construction of a house in 1981 which was supposed to be on the three acres, but which in reality was on the remaining thirty-two acres.

¶ 5. On February 5,1988, the Whitefoots transferred a deed of trust and security agreement on the three acres to the Bank of Mississippi by way of a thirty day promissory note. When the Bank accepted the three acre tract as security from the FHA in 1988, it was thought by the FHA, Bank and the Whitefoots to cover the White-foots’ house. The 1988 security agreement listed the house and three acres as collateral.

¶ 6. The note with deed of trust and security agreement was renewed in 1990 with the house and three acres again listed as collateral. David Whitefoot contends that he notified the bank president that the house did not appear to be on the three acre tract and that the Bank declined his offer to survey the property, but renewed the note as it was. In 1992 the note was again renewed with the house and three acres listed as collateral on the security agreement.

¶ 7. In 1992, prior to the renewal, the Whitefoots declared Chapter 13 bankruptcy and listed the three acres and house as being mortgaged to the Bank. The White-foots indicated that they knew their house was not on the three acres when they discovered the homestead records listed the house as being on the thirty-two acres and had listed it that way since 1982. In the bankruptcy action, the Whitefoots did not file against the Bank, but rather agreed to keep all loans with the Bank. They did however file against EB, Inc., the mortgage holder on the thirty-two acres.

¶ 8. While the bankruptcy was in progress, EB, Inc. sold its interest to another mortgage holder, which in turn sold its interest to Greystone Mortgage Co. Grey-stone was the mortgage holder when the Whitefoots completed their Chapter 13 plan in August 1997. As a result of completing their Chapter 13 plan, the White-foots own the thirty-two acres free of all liens since these were paid off in the bankruptcy plan.

¶ 9. In its complaint, the Bank listed EB, Inc. as a party because EB, Inc. was still shown as the record lienholder on the un-cancelled deed of trust on the thirty-two acre tract. EB, Inc. was released as a party by agreement with the Bank and order of the chancery court.

¶ 10. In 1995, the Whitefoots refinanced the note on the three acre deed of trust and security agreement with the Bank. Again, the Bank listed the house and three acres as collateral on the security agreement. According to the Whitefoots, the bank president promised that he would have a survey done at the completion of the Chapter 13. In 1996, a new bank president was appointed.

¶ 11. On June 26, 1997, the Whitefoots’ note on the three acres came up for renewal again. The Bank and the Whitefoots renewed the note by renewal deed of trust and security agreement. This time the 1997 renewal security agreement did not list the Whitefoots’ house as collateral. The Bank would later claim that the 1997 security agreement did not have to list the house as collateral in order for the Bank to have a security interest. The Whitefoots’ argument on appeal is premised on the Bank’s failure to list the house in the 1997 renewal. The Whitefoots never made any payments on the 1997 note and now contend that they should own their house outright, with the only collateral on the loan being the three acres.

¶ 12. The Whitefoots and the Bank agreed that it was their intent that the house and three acres were to be collateral for the original loan and the subsequent renewals in 1990, 1992, and 1995. The dispute is whether the 1997 renewal was to include the house. The Whitefoots argue that the Bank was fully aware that the property description in the deed of trust did not include the property on which the house was located and that the Bank was willing to accept the three acres alone as collateral because there was insufficient time to get a new survey and description. At the time of trial the amount owed by the Whitefoots and secured by the deeds of trust was $46,163.57, and the value of the three acres alone was approximately $3,000.

DISCUSSION

1. Whether the court erred because its findings of fact and conclusions of law are manifestly wrong, and not supported by the evidence in the case.

¶ 13. An appellate court will not disturb a chancellor’s findings of fact unless the chancellor abused his discretion, was manifestly wrong, was clearly erroneous or applied an erroneous legal standard. Turpin v. Turpin, 699 So.2d 560, 564 (¶ 14)(Miss.1997); Wilson v. Wilson, 810 So.2d 615 (Miss.Ct.App.2002).

¶ 14. The Whitefoots’ argument is that the Bank became aware that the house was outside the legal description prior to the renewal of the loan in 1997, and therefore waived its right to claim a lien on the house when it knowingly used the erroneous description in the last renewal deed of trust.

¶ 15. As argued by the Bank, the chancellor gave detailed findings in support of his conclusions. The chancellor was fully satisfied that, notwithstanding the erroneous description in 1997, that what the parties intended was clear beyond a reasonable doubt. The chancellor characterized as “unbelievable” the White-foots’ evidence that the Bank intended to abandon its claim on the house. The chancellor was fully satisfied with the explanation that no other description was available and that the exigent circumstances surrounding the loan made it necessary to use the erroneous description. The chancellor specifically found that looking to the entirety of the transaction that the parties’ intent was to renew, extend and continue the lending relationship which began in 1988 and surrounded all the prior transactions. Even David Whitefoot in his testimony agreed that the Bank had a lien on the house at all times prior to the 1997 renewal. Thus, the chancellor was correct in finding that if the 1995 deed of trust covered the house, the 1997 deed of trust did as well.

¶ 16. Under the existing standard of review, this Court cannot reweigh the evidence to reach a different conclusion. In this case, the chancellor was in the best position to listen to the witnesses, observe their demeanor and determine their credibility. Rogers v. Morin, 791 So.2d 815, 826 (¶ 39) (Miss.2001); Carter v. Carter, 735 So.2d 1109 (Miss.Ct.App.1999).

¶ 17. We find no error in the chancellor’s findings.

2. Whether the court erred because it used the wrong standard of review in judging the case.

¶ 18. The Whitefoots argue that the court erred when it decided the case on Mississippi case law that says that a mere change in the form of the evidence of the debt cannot operate to discharge a hen. They contend that the court should have applied case law based on mutual mistake to reform a deed or contract. Their position is that the Bank never had an actual lien on the house, only an intention to have a hen. The Whitefoots also argue that mutual mistake could be the only basis for reformation of the deed of trust and that there was no mutual mistake in the 1997 deed of trust.

¶ 19. As noted by the Bank, an action to reform a deed depends on the existence of a deed which on its face does not reflect what the parties intended. The lower court found that the Bank did have a hen on the property in question as a matter of equity by virtue of the intentions of the parties repeated over several transactions. There is no dispute that this mutual mistake continued through 1995. As stated in Webb v. Brown, 404 So.2d 1029, 1031-32 (Miss.1981), “it is not the description they intended to write which controls, but the property the parties intended to include in the description used.”

¶ 20. Under McCoy v. McCoy, 611 So.2d 957, 961 (Miss.1992), the court stated that the proper burden of proof in mutual mistake involving a reformation of a deed is the beyond a reasonable doubt standard. This case also states that “a chancehor’s findings of fact are unassailable on appeal unless those findings are manifestly wrong.” Id. at 960. In this case, the chancellor specifically found that “[t]he mutual mistake of the parties entitled the [Bank] to a reformation of all deeds of trust to include a legal description of three acres of land with the house upon it.”

¶21. We find that the chancellor did apply the correct legal standard in this case and that the argument to the contrary is without merit.

3. Whether the court erred because it allowed the Bank to argue the case on a different set of facts, and argue a different standard of review from that claimed in the initial complaint.

¶22. The Whitefoots did not object at trial to the Bank’s argument about which they now complain on appeal. Under M.R.A.P. 15(b), “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” By failing to object at trial, the Whitefoots have waived the right to raise the issue on appeal. Norris v. Norris, 498 So.2d 809, 812 (Miss.1986).

¶ 23. Notwithstanding the procedural bar, the Court finds that the Bank’s arguments at trial are consistent with the various alternative counts found in its complaint and could not be the basis for reversal in this case.

4. Whether the court erred by its order to reform the Whitefoots’ thirty two acre tract against an unnecessary party without interest, instead of against real and necessary parties with interest, and erred by not including all necessary parties on both three and thirty two acre tracts reformations.

¶24. The Whitefoots argue that the court erred in entering an order concerning EB, Inc. which was originally listed as a party in this case and in failing to join Greystone Mortgage and FHA as necessary parties. As previously stated, these entities previously were lienholders on the thirty-two acres owned by the Whitefoots.

¶ 25. The agreed order about which the Whitefoots complain was entered on April 17,1998, and provided that EB, Inc. claims no interest in the property which is the subject of the litigation and that the deeds of trust of record in favor of EB, Inc. were to be reformed accordingly.

¶ 26. The Whitefoots never raised any objection to the order in the chancery court. They also failed to move for the joinder of Greystone Mortgage and the FHA as necessary parties to the litigation. Having failed to do so, they are precluded from raising this issue for the first time on appeal. Zurich American Ins. Co., Inc. v. Beasley Contracting Co., Inc., 779 So.2d 1132, 1134(¶ 11) (Miss.Ct.App.2000).

¶ 27. The Whitefoots cannot show any prejudice as a result of the order or failure to join other parties. The order did not affect the judgment entered by the court. Even if the issue had been raised, there is no basis for relief.

5.Whether the court erred by not basing the case on the intent revealed by the evidence in the 1997 renewal, instead of basing the case on past intent.

¶ 28. The Whitefoots’ fifth argument is largely a repeat of the first issue that the chancellor’s findings are not supported by the evidence. The Court is called on to review the evidence, particularly the testimony of David Whitefoot, that there was no intention to include the house in the 1997 renewal of the deed of trust and that the parties were aware that the legal description did not include the house. The Whitefoots argue that this evidence proves that there was no mutual mistake.

¶ 29. The evidence relied on by the Whitefoots was rejected by the chancellor as “unbelievable” and their argument as “unpersuasive.” The chancellor rejected the argument that the Bank would inexplicably release the house and accept as collateral three unimproved acres locked in a thirty-two acre tract with no access.

¶ 30. The Whitefoots’ argument overlooks that, in an action to reform a deed based on a mistake theory, any instrument can be reformed on unilateral mistake where there is inequitable conduct by the benefitting party in connection with the mistake. McCoy, 611 So.2d at 961; see also United States Fidelity & Guaranty Co. v. Gough, 289 So.2d 925, 927 (Miss.1974). The chancellor specifically recognized that the equities were with the Bank as to the alleged difference in intent between the 1997 and 1995 deeds of trust. The court noted that “[t]he Whitefoots seize upon the differences but without offering to do equity to the Plaintiff.”

¶ 31. The Court finds that the chancellor correctly weighed the evidence and prevented an inequitable result.

6. Whether the court erred by not considering the 10 year statute of limitations to reform a deed because of a parties’ own mistake, negligence, or oversight, according to 15-1-7, of the Mississippi Code of 1972.

¶ 32. The Whitefoots argue that, since the Bank filed its suit more than ten years after the original 1988 deed of trust, the action should be barred.

¶ 33. This issue is raised for the first time on appeal. It is fundamental that the statute of limitations is an affirmative defense which must be raised in the answer or it is waived. See Gale v. Thomas, 759 So.2d 1150, 1157 n. 1 (Miss.1999).

¶ 34. Regarding claims to land, for the statute of limitations to apply the possession against the claimant must be adverse. O’Neal Steel, Inc. v. Millette, 797 So.2d 869, 872-73(¶ 11)(Miss.2001); Continental Oil Co. v. Walker, 238 Miss. 21, 33, 117 So.2d 333, 337 (1960). In this case, the Whitefoots’ possession of the property was never adverse to that of the Bank’s lien interest at any time prior to the 1997 renewal, if then. Also, the Bank did not seek reformation of the 1988 deed of trust, but rather the 1997 deed of trust. Consequently, there would be no statute of limitations issue even if the defense had been raised.

7. Whether the court erred by entering judgment against, or one that would affect the Whitefoots’ thirty two acre homestead, because the thirty two acres was declared a homestead years before judgment entered.

¶ 35. In their final argument, the Whi-tefoots argue that the judgment entered by the court impairs their right to homestead exemption. This argument was not raised until after the entry of final judgment.

¶ 36. Miss.Code Ann. § 89-1-29 (1972) provides that deeds of trust executed by both spouses are enforceable about their homestead. The Whitefoots have admitted that the Bank had a lien on their house at all times prior to the 1997 renewal. We find no merit to their argument that the 1997 renewal and extension of the previous deeds of trust deprived them of their homestead exemption.

¶ 37. THE JUDGMENT OF THE CHANCERY COURT OF CLAY COUNTY IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANTS.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, and GRIFFIS, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: THOMAS, J.,

license: Public Domain

text:
    Pearlie THOMAS, Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY a/k/a State Farm General Insurance Company, Appellee.
    No. 2002-CA-00656-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.
    Rehearing Denied Sept. 23, 2003.

      W. Dean Belk, Indianola, attorney for appellant.
    Bradley Barron Vance, William M. Dale-hite, Jackson, attorneys for appellee.
    Before McMILLIN, C.J., THOMAS, LEE and IRVING, JJ.
   THOMAS, J.,

for the court.

¶ 1. Pearlie Thomas was shot by her cousin, Bessie Mallard. Thomas sued Mallard for injuries sustained by gunshot. A default judgment was entered and a hearing was held to determine damages. Thomas was awarded $473,067.54 in compensatory damages and $70,000 in punitive damages. Thomas then filed a garnishment action against State Farm to recover from Mallard’s homeowner’s insurance policy. The court ruled in favor of State Farm’s motion for summary judgment. Aggrieved Thomas asserts the following on appeal:

I. THE EXCLUSION RELATING TO INTENTIONAL HARM IS NOT APPLICABLE HERE BECAUSE DEFENDANT MALLARD DID NOT INTEND TO HARM THE PLAINTIFF.

II. ANY LACK OF NOTICE TO STATE FARM IS NO BASIS FOR BARRING RECOVERY UNDER THE INSURANCE POLICY.

FACTS

¶ 2. On April 4, 1996, Bessie Mallard shot her cousin, Pearlie Thomas, in the abdomen. Mallard later pled guilty to aggravated assault and was sentenced to fifteen years suspended and five years of supervised probation. Thomas then sued Mallard for damages sustained from the gunshot. A default judgment was entered on November 16, 1997, as Mallard never answered the complaint. The hearing to determine damages was held on May 13, 1999; Mallard failed to attend. Thomas was awarded $543,067.54 in medical expenses, compensatory damages, and punitive damages.

¶ 3. Soon after the hearing to determine damages, Mallard filed for bankruptcy, and Thomas discovered that Mallard had a homeowner’s insurance policy after a hearing in a bankruptcy proceeding uncovered that Mallard owned a home and lived in Leflore County. Thomas then searched the records in Leflore County and discovered a deed to a mortgaged property on which Mallard had homeowner’s insurance. Thomas filed a garnishment action against State Farm Fire and Casualty Company, the insurer. State Farm refused to pay pursuant to an exclusionary provision that excluded from coverage intentional acts done by the insured. State Farm also asserted as a defense the fact that Mallard did not give notice of the claim to State Farm until years after the incident; a default judgement had already been entered against Mallard. The trial court granted summary judgement in favor of State Farm.

¶ 4. The clause that protects the insured from personal liability states:

If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will: 1) pay up to our limit of liability for the damages for which the insured is legally liable.

The exclusionary provision that State Farm relies on provides that coverage does not apply to bodily injury “to any person which is the result of willful and malicious acts of an insured.”

¶ 5. Mallard pled guilty to the aggravated assault charge and at the sentencing hearing Thomas told the judge about her medical bills and how Mallard should have to pay. There was obvious ill will between the women at that point. However, a reading of the depositions taken by State Farm in April of 2001 revealed a totally different scenario. Both women agreed at that time that Mallard did not intend to harm Thomas. Thomas even stated that she may have accidentally hit Mallard’s hand which held the gun when she turned to go back inside. Clearly, both of these women want State Farm to pay.

ANALYSIS

I. IS THE EXCLUSION RELATING TO INTENTIONAL HARM APPLICABLE HERE?

¶ 6. Thomas contends that the trial court erred in its finding that Mallard intended to harm Thomas when it granted State Farm’s motion for summary judgment. Thomas asserted for the first time in the garnishment action that Mallard did not intentionally shoot her. She previously asked for and received punitive damages at the damages hearing after a default judgment was entered against Mallard. She further contends that although the trial court conducting the damages hearing found that Mallard acted intentionally and therefore awarded punitive damages, the court never determined that Mallard intended to harm Thomas.

¶ 7. This Court conducts a de novo review of orders granting or denying summary judgment and looks at all the eviden-tiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Langston v. Bigelow, 820 So.2d 752, 755(¶4) (Miss.Ct.App.2002). The evidence must be viewed in the light most favorable to the party against whom the motion has been made, that is, the non-movant is given the benefit of the doubt. Id. If the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Id. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. Id. The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to judgment as a matter of law; mere allegation or denial of material fact is insufficient to generate a triable issue of fact and avoid an adverse rendering of summary judgment. Benson v. National Union Fire Ins. Co. of Pittsburgh, 762 So.2d 795(¶ 5) (Miss.Ct.App.2000); Langston v. Bigelow, 820 So.2d 752, 755(¶4) (Miss.Ct.App.2002).

¶ 8. The interpretation of insurance policy language is a question of law. Johnson v. Preferred Risk Auto. Ins. Co., 659 So.2d 866, 871 (Miss.1995). Generally, under Mississippi law, when the words of an insurance policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written. Paul Revere Life Ins. Co. v. Prince, 375 So.2d 417, 418 (Miss.1979). In Mississippi, “[an] act is intentional if the actor desires to cause the consequences of his act, or believes that the consequences are substantially certain to result from it.” Lewis v. Allstate Ins. Co., 730 So.2d 65, 68(¶ 12) (Miss.1998); Coleman v. Sanford, 521 So.2d 876, 878 (Miss.1988).

¶ 9. The supreme court has previously addressed whether an intentional acts exclusion provision in a policy precluded coverage when an insured shot an individual and claimed that the shooting was not intentional. Southern Farm Bureau Cas. Ins. Co. v. Allard, 611 So.2d 966, 968 (Miss.1992). In Allard, the personal injury suit was resolved prior to the suit for declaratory judgment. Id. at 967. The jury found that Allard, the insured, did not intend to shoot Rowland, the victim. The homeowner’s policy covering Allard contained an exclusion to liability coverage stating that coverage “does not apply to bodily injury or property damage which is expected or intended by the insured.” Id. at 968. The Court noted that under Mississippi law, “ ‘[an] act is intentional if the actor desires to cause the consequences of his act, or believes that the consequences are substantially certain to result from it.’ ” Id. (quoting Coleman, 521 So.2d at 878). Without determining whether the policy language was ambiguous, the court relied on the jury’s conclusion that, based on the evidence, Allard did not intend to shoot or hit Rowland; rather, Allard only intended to stop Rowland by shooting in front of him. Id. at 968-69.

¶ 10. The distinguishing factors between Allard and the case sub judice are that the intentions of the shooter in Allard were never contradicted by the shooter or the victim. Thomas has changed her story regarding the intention of Mallard after asking for punitive damages. Punitive damages can only be awarded for actual malice, i.e., intentional conduct. At the very least, Mallard believed that the consequences which occurred were substantially certain to occur.

¶ 11. “When collateral estoppel is applicable, the parties will be precluded from relitigating a specific issue actually litigated, determined by, and essential to the judgment in a former action, even though a different cause of action is the subject of the subsequent action.” Dunaway v. W.H. Hopper & Associates, Inc., 422 So.2d 749, 751 (Miss.1982). Strict identity of parties is not necessary for either res judicata or collateral estoppel to apply, if it can be shown that a nonparty stands in privity with the party in the prior action. Smith v. Malouf, 826 So.2d 1256, 1260(¶ 13) (Miss.2002); McIntosh v. Johnson, 649 So.2d 190, 193-94 (Miss.1995), overruled on other grounds by Norman v. Bucklew, 684 So.2d 1246 (Miss. 1996); Johnson v. Howell, 592 So.2d 998, 1002 (Miss.1991); Walton v. Bourgeois, 512 So.2d 698, 701 (Miss.1987). In Coral Drilling, Inc. v. Bishop, 260 So.2d 463, 465-66 (Miss.1972), the plaintiff stated in one suit one fact and in another suit a different fact regarding the same thing. Id. The courts will not permit litigants to solemnly affirm that a given state of facts exists from which they are entitled to a particular relief and then afterwards affirm a contrary state of facts from which they are entitled to inconsistent relief. Id. With no genuine issue present, Rule 56(c) of the Mississippi Rules of Civil Procedure controls, and the summary judgment must be affirmed. Hardy v. Brock, 826 So.2d 71, 76(¶ 28) (Miss.2002).

¶ 12. At Mallard’s sentencing hearing on September 9, 1997, Thomas testified describing her recollection as to the facts surrounding the shooting. She attested that she did not know what was going on and that when she went outside to talk to Mallard, Mallard was holding a gun in her hand. Thomas said Mallard told her the reason why Mallard was going to shoot her and then she did. She further described how the bullet “tore her up” inside. When questioned by the court as to what precipitated the incident Thomas explained that it was understood, afterwards, that it was over some missing jewelry.

¶ 13. Thomas was later deposed by State Farm in the garnishment action. She testified, “Bessie told me she wanted to talk to me. I can’t remember about what, but it was something that her brother had done, whatever. Anyway, it ended up to some way we was talking and the gun went off. That is the only thing that I can remember. I ran in the house.” Thomas further described what took place at the moment the gun was fired, “I don’t know, my hand hit her’s or something and it went off.” This is quite a different story than the one portrayed by Thomas prior to discovering the exclusion clause in the insurance policy.

¶ 14. Thomas never once, prior to the garnishment action, contended that Mallard did not shoot her intentionally. Thomas now contends that the harm which resulted was not that which was intended and therefore the exclusion should not apply. Given the prior criminal and civil proceedings wherein Thomas alleged a malicious and intentional assault upon her and Mallard’s acknowledging the same, neither the law nor logic shall allow Thomas or Mallard to proceed as they desire here.

¶ 15. As stated above, when reviewing a grant of summary judgment this Court must be sure that the trial court viewed the evidence in the light most favorable to the party against whom the motion has been made, that is, the non-movant is given the benefit of the doubt. In the case sub judice Thomas is barred from asserting a different set of facts than those which she pled and testified to under oath previously. Therefore, the trial court had only one light with which to view the evidence and that is Thomas’ previous assertions and pleadings as to the facts and evidence. Review of the remaining issue is not required as it has been determined that the exclusion provision applies and coverage does not exist under the policy.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED AGAINST THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ, BRIDGES, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ, CONCUR.


author: MYERS, J.,

text:
    Antonio Terrell ANDERSON a/k/a Crazy Horse, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01863-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.
    Rehearing Denied Sept. 23, 2003.

      William B. Lovett, James Lawton Robertson, Jackson, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., MYERS and GRIFFIS, JJ.
   MYERS, J.,

for the court.

¶ 1. Antonio Anderson was tried for manslaughter and three counts of aggravated assault on July 2, 2001. A jury returned a guilty verdict on all counts. The Circuit Court of Jefferson County then sentenced Anderson to sixteen years for one count of manslaughter and three consecutive eight-year sentences for the counts of aggravated assault. Aggrieved by the verdict, Anderson asserts the following issues on appeal:

I. WAS THE IDENTIFICATION OF ANDERSON AS THE SHOOTER IN THIS CASE SUPPORTED BY EITHER THE SUFFICIENCY OR THE WEIGHT OF THE EVIDENCE?
II. DID THE TRIAL COURT ERR IN ADMITTING CRIME SCENE PHOTOGRAPHS?
III. DID ANDERSON SUFFER PREJUDICE WHEN HE WAS REFERRED TO AS “CRAZY HORSE”?
IV. DID THE CUMULATIVE ERRORS DENY ANDERSON A FAIR TRIAL?
V. WAS ANDERSON’S VERDICT THE RESULT OF BIAS, PASSION, AND PREJUDICE ON THE PART OF THE JURY?

Facts

¶ 2. Antonio Anderson arrived at the In and Out Club, just outside Fayette, Mississippi, in the early morning hours of August 13, 2000. In the back of the club was a small pool room. This room was packed with people watching, playing, and betting on games of pool. At one of the tables, Terrence Kelly and Bevie Bingham were playing a heated game.

¶ 8. During the course of this game, some confusion arose, and Christopher Barnes, one of the persons betting on the game, called off his bet. He retrieved his money, and walked past Anderson. Anderson shoved Barnes. Barnes then punched Anderson in the face, knocking Anderson to the floor. At this point, according to several witnesses, Anderson reached into his pants and withdrew a gun. Many of the spectators, upon seeing the weapon, panicked and began to flee. Shots were heard. Jamaal Odom was shot in the head, resulting in his death, and three people suffered less severe gunshot wounds while they were fleeing.

¶ 4. Anderson was later arrested for the manslaughter of Odom and the aggravated assault of the three other shooting victims.

Legal Analysis

I. WAS THE IDENTIFICATION OF ANDERSON AS THE SHOOTER IN THIS CASE SUPPORTED BY El-THER THE SUFFICIENCY OR THE WEIGHT OF THE EVIDENCE?

V. WAS ANDERSON’S VERDICT THE RESULT OF BIAS, PASSION, AND PREJUDICE ON THE PART OF THE JURY?

¶ 5. The appellant has a high burden to overcome when challenging the sufficiency of the evidence. This standard has been stated as:

[T]he sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with [the defendant’s] guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Jones v. State, 819 So.2d 558, 562(¶ 16) (Miss.Ct.App.2002) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). We hold that the evidence was sufficient to support the verdict.

¶ 6. Testimony was presented that Anderson was seen with a gun. He began to pull the gun out of his pants either immediately after getting knocked to the floor of the In and Out Club or immediately before. At least one witness, Bevie Bingham, saw “fire” coming from the muzzle of the gun. The bullet casings were identified as likely coming from a Glock. A witness identified Anderson’s gun as a Glock. While there was also testimony that at least one other person drew a gun inside the club that night, that testimony goes to the weight which the jury gives the various pieces of evidence. Obviously, by returning a verdict of guilty, the jury decided to give that testimony less weight than the testimony supporting the guilt of Anderson. We do not find that evidence of the presence of another gun would cause reasonable doubt and fair minded jurors to find Anderson not guilty.

There is a similar standard of review when we must review the weight of the evidence. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in fading to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper

Baker v. State, 802 So.2d 77, 81(¶ 14) (Miss.2001) (quoting Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998)). Our finding concerning the weight of the evidence is the same as to the challenge of the sufficiency of the evidence. The jury heard evidence that Anderson was the shooter. They also heard evidence that other persons brandished guns that night. There are many factors that go into the weight a jury gives the testimony it hears during a trial — the appearance of a witness, his or her manner of speech, body language, etc. We are not in a place to judge all of these factors and can only review what is on the record. Looking at the record, we do not find sufficient reason to declare the verdict was against the weight of the evidence. Similarly, there was enough evidence presented for us to say that the verdict was not the result of any bias, prejudice, or passion.

II. DID THE TRIAL COURT ERR IN ADMITTING CRIME SCENE PHOTOGRAPHS?

III. DID ANDERSON SUFFER PREJUDICE WHEN HE WAS REFERRED TO AS “CRAZY HORSE”?

¶ 7. Anderson asserts that it was error for the trial court to allow the jury to see photographs showing Odom’s wounds. One of the photographs appears to have been taken at the crime scene, and the other appears to have been taken as part of the autopsy. These photographs, he argues, have a prejudicial effect that outweighs any probative value they may have. Again, we will reverse the trial judge’s decision only when it is shown that he has abused his discretion. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936(¶ 7) (Miss.2002).

¶8. Anderson’s attorney made a pretrial motion to exclude these photos. The trial judge decided to withhold his ruling until the State offered the photos into evidence. At that time, the trial judge, outside the hearing of the jury, stated:

These are two photographs that have previously been objected to because of the prejudicial nature of the photographs, but it appears to the Court that one of the key elements of proof in this particular scenario is the angle of the projectile. And I’ve heard enough evidence to determine that that is, in fact, a very crucial element of the proof, and I find that the prejudicial value or prejudicial effect is far outweighed by the probative value of the photograph.

¶ 9. The trial judge made a careful decision that the photographs were needed, especially in light of expected testimony from the coroner and the medical examiner. This decision is not an abuse of the trial court’s discretion. Therefore, we will not overrule the trial judge’s decision to admit the photographs.

¶ 10. The defense also made a pretrial motion to prevent Anderson being identified by his nickname, “Crazy Horse.” The record makes it clear that the trial court did consider the prejudicial effect versus the probative value of this nickname. Some of the witnesses only knew Anderson as “Crazy Horse.” Therefore, the court ruled that it was more probative than prejudicial. We agree. We find the identification of the shooter was more important than any prejudice that Anderson may have suffered. Admitting the name “Crazy Horse” was not an abuse of discretion.

IV.DID THE CUMULATIVE ERRORS DENY ANDERSON A FAIR TRIAL?

¶ 11. Since we have not found any errors, we find no merit in this issue.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF SIXTEEN YEARS AND CONVICTION OF THREE COUNTS OF AGGRAVATED ASSAULT AND SENTENCE OF EIGHT YEARS FOR EACH COUNT IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH ALL SENTENCES TO RUN CONSECUTIVELY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: LEE, J., SOUTHWICK, P.J., GRIFFIS, J.,

text:
    Raymond Helton FRILEY, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00041-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.
    Rehearing Denied Oct. 21, 2003.
    Jane Cleland O’Mara, Pat McNamara, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorneys for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On May 2, 2000, Raymond Helton Friley, Jr. was indicted by the grand jury in Warren County for the sexual battery of C.M., a female minor. On November 10, 2000, a jury returned a verdict of not guilty to the charge of sexual battery, but guilty to the lesser offense of molestation. The court sentenced Friley to serve fifteen years in the custody of the Mississippi Department of Corrections. Friley has perfected his appeal to this Court asserting the following issues: (1) the trial court erred in granting jury instruction S-2; (2) the guilty verdict was against the overwhelming weight and sufficiency of the evidence; and (3) proof of venue was never proven by the State. Finding merit to the first issue, we reverse and render.

FACTS

¶ 2. In July of 1995, C.M. was swimming at her grandmother’s pool when she encountered Friley, who was servicing the pool. According to C.M., Friley cornered her, placed a plastic bag in front of her face, put his hand in the bottom of her swimsuit, and inserted his finger into her vagina. C.M. testified that Friley also “took his other hand and put it inside his pants, ... moving his hand around.” This assault apparently lasted between five and ten minutes. Afterwards, Friley grabbed her and told her not to repeat to anyone what had occurred.

¶ 3. At the time of the assault C.M. was approximately nine years old. The present proceeding did not begin until five years later when C.M. mentioned the incident to a friend at school. This friend contacted C.M.’s mother and told her about the assault. The authorities were contacted and Friley was identified as the assailant. C.M. positively identified Friley as the person who had assaulted her. In the years since the assault, C.M. has had nightmares and anxiety attacks.

DISCUSSION OF ISSUES

I. DID THE TRIAL COURT ERR IN GRANTING JURY INSTRUCTION S-2?

¶ 4. With his first issue, Friley contends that the trial court erred in granting jury instruction S-2, which authorized the jury to find Friley guilty of molestation. It is well settled that jury instructions which are unsupported by the evidence or incorrectly state the law are not to be given to the jury. Perry v. State, 637 So.2d 871, 877 (Miss.1994). Reversible error will be found only if the instructions create an injustice. Coleman v. State, 697 So.2d 777, 782 (Miss.1997).

¶ 5. The indictment charged Friley with sexual battery, a crime of which the jury found him not guilty. According to the record, the trial judge mistakenly determined the crime of molestation under Miss.Code Ann. § 97-5-23 (Rev.2000) to be a lesser-included offense of sexual battery. A lesser-included offense instruction may be given if the more serious offense includes all the elements of the lesser offense, “that is, it is impossible to commit the greater offense without at the same time committing the lesser-included offense.” Sanders v. State, 479 So.2d 1097, 1108 (Miss.1985).

¶ 6. Under Miss.Code Ann. § 97-3-95 (Rev.2000), “a person is guilty of sexual battery if he or she engages in sexual penetration with ... (d) a child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.” Under Miss.Code Ann. § 97-5-23 (Rev.2000), molestation is defined as follows:

Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch, or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child’s consent, ... shall be guilty of a felony....

The Mississippi Supreme Court has reversed a conviction of child fondling where the charge of child fondling was not an additional count in the indictment. Hailey v. State, 537 So.2d 411, 416-17 (Miss.1988). The supreme court has more recently stated that “lustful intent is not an element of sexual battery that needs to be proven. Rather, Miss.Code Ann. § 97-3-95(l)(c) (1994) requires only a showing of sexual penetration with a child under the age of fourteen.” Watts v. State, 733 So.2d 214(¶ 45) (Miss.1999). After comparing the above statutes, we find molestation is not a lesser-included offense of sexual battery. See Brady v. State, 722 So.2d 151(¶ 36) (Miss.Ct.App.1998); Hailey, 537 So.2d at 414. Thus, the judge erred in allowing the instruction concerning molestation.

¶ 7. The dissent can see no instance where a person would sexually batter a child without doing so for the purpose of gratifying his or her lust. Our state legislature felt it necessary to construct two separate and distinct statutes regarding sexual battery and molestation. Were we to regard molestation as a lesser-included offense of sexual battery, then we would effectively nullify the molestation statute. We decline to do so and leave any needed clarification to the legislature. Furthermore, molestation is recognized as a separate offense from sexual battery as defendants are frequently charged with both crimes simultaneously. See Todd v. State, 806 So.2d 1086 (Miss.2001); Taylor v. State, 836 So.2d 774 (Miss.Ct.App.2002); Byars v. State, 835 So.2d 965 (Miss.Ct.App.2003).

¶ 8. We can find no reason or legal authority to allow this lesser offense instruction. The prosecutor and the trial court confused the jury by allowing them to consider an erroneous instruction. We find that to allow Friley to be convicted of a crime for which he was never charged would create an injustice. Although applying the law in this instance may produce an unpopular result in the eyes of the public, in light of the evidence and applicable law we have no choice but to reverse and render.

II. WAS THE JURY VERDICT AGAINST THE OVERWHELMING WEIGHT AND SUFFICIENCY OF THE EVIDENCE?

III. DID THE STATE PRESENT SUFFICIENT PROOF OF VENUE?

¶ 9. Because we reverse and render on the first issue, we decline to discuss the merits of the other two issues.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS REVERSED AND RENDERED. COSTS OF THIS APPEAL ARE TAXED TO WARREN COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, AND IRVING, JJ., CONCUR. SOUTHWICK, P.J., CONCURS WITH A SEPARATE WRITTEN OPINION JOINED BY McMILLIN, C.J., AND BRIDGES, J. GRIFFIS, J., DISSENTS WITH A SEPARATE WRITTEN OPINION JOINED BY MYERS AND CHANDLER, JJ.

SOUTHWICK, P.J.,

concurring:

¶ 11. The dissent addresses two issues that supposedly should cause us to affirm the conviction. With respect for the writers of the dissent and of the majority opinion, I find that a different explanation both of waiver and of the law of lesser-included offenses would be helpful.

Waiver of instruction issue

¶ 12. The dissent argues that defense counsel withdrew his objection to the instruction on the allegedly lesser-included offense of molestation. The dissenting opinion quotes the operative part of the instruction conference. There is ambiguity in what occurred. Generically, there was a firm objection to an instruction, followed by the judge’s explanation of why he believed the instruction was necessary, and concluding with the objector’s response of “okay.” The dissent interprets that last word to be an acceptance of the validity of the instruction, thus a waiver of the issue. The word might instead have indicated understanding but not acceptance of the judge’s explanation, or perhaps even counsel’s recognition that the judge had ruled and further argument was unnecessary.

¶ 13. Though I cannot enter the defense counsel’s mind through the printed word of the transcript, I find no need. There was definitely an objection. The objection was clear that counsel believed the new offense had not earlier been part of the case (“there was nothing brought out about another crime whatsoever”), which is effectively stating that the new crime was not included in the indicted offense. The judge clearly revealed his intention to give the instruction, both in his initial statements and in the words immediately following the ambiguous “okay” from defense counsel. The judge stated “I’m going to give it.”

¶ 14. To require that defense counsel restate his objection after the judge’s explanation is akin to reviving the discredited practice of counsel’s having to “except” to an unfavorable ruling on an objection. See Starks v. State, 798 So.2d 562, 565 (Miss.Ct.App.2001). This case suggests that the practice of “excepting” might occasionally have its utility, but there is rarely a purpose and there never is a requirement. Id. Once the objection was clearly made, more than this level of ambiguity is needed to effect a withdrawal.

Lesser-included offense

¶ 15. I agree with the majority that molestation under section 97-5-23 is not a lesser-included offense of sexual battery under section 97-3-95. Both of the other opinions in this case discuss various precedents regarding related offenses to the ones involved in this case. With respect, I find the debate over the similarities and distinctions in those cases somewhat unpersuasive.

¶ 16. Both the majority and dissent appear to agree that a lesser-included offense must contain all the elements of the greater, such that it would be impossible to commit the greater without also committing the lesser. See Sanders v. State, 479 So.2d 1097, 1108 (Miss.1985). Where some ambiguity in lesser-included offense analysis arises is whether the focus should be on the statutory elements of the offenses or instead on the specific facts of a particular case. It is clear that it is possible to commit the statutory elements of the lesser crime of molestation without committing the statutory elements of the greater crime of sexual battery. I compare the statutory elements:

¶ 17. Sexual molestation requires (a) a defendant who is above the age of eighteen, who (b) for the purpose of gratifying lust (c) shall handle, touch, rub with his hands or any part of his body (d) any child under sixteen, (e) with or without consent. Miss.Code Ann. § 97-5-23 (Rev.2000). Sexual battery requires sexual penetration. There are various ways in which this can be done, namely (a) without consent, or (b) with a person with a mental defect, or (c) with a child between the ages of fourteen and sixteen, if the defendant is at least three years older, or (d) with a child under the age of fourteen, if defendant is at least two years older. Miss.Code Ann. § 97-3-95 (Rev.2000). Friley was charged under the last option, sexual penetration of a child under the age of fourteen when the accused was more than two years older.

¶ 18. The clearest examples of statutory elements that are necessary for the lesser offense but are not elements of the greater are that in the lesser, the defendant must be older than 18, while a defendant under eighteen can be guilty of sexual battery. Further, the specific intent of gratifying lust is needed for the lesser offense, while no such intent is needed for sexual battery. Sexual battery is a “general intent” crime, i.e., it is only necessary that the accused have the intent to commit an unlawful act and that the offense not have been an accident or mistake.

¶ 19. Whether Mississippi examines solely the statutory elements to determine what is a lesser-included offense of another is not altogether certain. There is in some cases language such as the following, which refers both to the statute and to the indictment:

The Blockburger rule has particular application in the lesser included offense context. If an individual is charged with two offenses, and all of the elements of one are included within and are a part of a second greater offense, Blockburger intervenes. It charges that we compare statutory offenses, as indicted, and see whether each requires proof of a fact which the other does not.... On the other hand, where no further evidence is needed to establish the lesser offense, once the prosecution has proved the greater offense, punishment for the lesser is barred. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309....

Meeks v. State, 604 So.2d 748, 751-52 (Miss.1992).

¶ 20. Federal law does not control here. The United States Supreme Court has held that for federal crimes, the statutory elements test applies for lesser-included offenses. Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). The Court noted without criticism that other tests are used by the States:

In determining whether an offense is a lesser included offense of a particular crime, the States have adopted a variety of approaches. See, e.g., State v. Berlin, 133 Wash.2d 541, 550-551, 947 P.2d 700, 704-705 (1997) (en banc) (comparing statutory elements of the lesser offense to determine whether all of them are contained in the greater offense); People v. Beach, 429 Mich. 450, 462, 418 N.W.2d 861, 866-867 (1988) (applying the “cognate evidence” approach: a lesser included offense instruction may be given even though all of the statutory elements of the lesser offense are not contained in the greater offense, if the “overlapping elements relate to the common purpose of the statutes” and the specific evidence adduced would support an instruction on the cognate offense (internal quotation marks and citation omitted)); State v. Curtis, 130 Idaho 522, 524, 944 P.2d 119, 121-122 (1997) (court looks both to the statutory elements and to the information to determine whether it “charges the accused with a crime the proof of which necessarily includes proof of the acts that constitute the lesser included offense”).

Hopkins v. Reeves, 524 U.S. 88, 98 n. 6, 118 S.Ct. 1895, 141 L.Ed.2d 76 (1998).

¶21. Many of the Mississippi precedents merely state that the elements of the “offenses” should be compared without stating whether the statutory, the charged, or the evidentiary elements control:

in order to authorize a lesser-included-offense instruction the more serious offense must include all the elements of the lesser offense, meaning it is impossible to commit the greáter without also committing the lesser. Hailey v. State, 537 So.2d 411, 415 (Miss.1988). It is well settled that a lesser-included-offense instruction should be given unless the trial judge determines, by looking at the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser-ineluded-offense, and ultimately not guilty of at least one element of the principal charge. Hutchinson v. State, 594 So.2d 17, 18 (Miss.1992)....

Odom v. State, 767 So.2d 242, 246 (Miss.Ct.App.2000).

¶ 22. I find that it is unnecessary in this case to determine exactly what the focus of the lesser-included offense analysis should be. Sexual battery is a general intent crime. The indictment alleged that Friley had committed the act “unlawfully and fe-loniously”; the statute refers to no necessary intent. Miss.Code Ann. § 97-3-95 (Rev.2000). However, for the allegedly lesser offense of molestation, the specific intent of gratifying lust is required. Miss. Code Ann. § 97-5-23(1) (Rev.2000). Since the lesser has an extra element, it cannot be a lesser-included offense of the greater. I find no support in this State’s precedents for the “cognate evidence” rule. Regardless of whether the statutory or the charged elements are the focus, sexual battery did not include the specific intent needed for molestation.

¶ 23. I agree with the dissent, however, that some physical acts that would prove molestation, a crime which does not even require touching the sexual organs of the victim, are lesser-included elements of the greater. These physical acts other than penetration would need to be similar to sexual penetration but legally less serious. For that reason I conclude that some (but not all) possible means of touching a victim that would prove sexual molestation would be lesser elements to the physical acts necessary for sexual penetration.

¶ 24. We must reverse even though the two crimes have considerable similarities. Reversal is required because under controlling case law a lesser-included offense instruction should not be given unless it is impossible for an accused to commit the charged offense without also committing the lesser one. The specific intent of gratifying lust is neither a statutory nor a charged element in this case of sexual battery. It is not enough for a lesser-included offense instruction to be given that an accused probably was gratifying his lust for the sexual battery. Since that intent is not an element of the greater offense, the intent cannot be initially injected into the case at the time that factual issues are given to the jury.

McMILLIN, C.J., AND BRIDGES, J., JOIN THIS SEPARATE WRITTEN OPINION.

GRIFFIS, J.,

dissenting:

¶25. I respectfully disagree with the majority’s holding, and therefore, I dissent. First, the defendant failed to preserve an objection to the jury instruction S-2, and therefore, this assignment of error was waived. Second, the majority’s opinion is premised on the incorrect conclusion that child molestation or fondling (Miss.Code Ann. § 97-5-23) is not a lesser-included offense of sexual battery (Miss. Code Ann. § 97-3-95).

I. The defendant failed to preserve an objection to the jury instructions.

¶ 26. This Court has held on numerous occasions that an offended party’s failure to object to jury instructions at trial procedurally bars the issue on appeal. Walker v. State, 729 So.2d 197(¶ 19) (Miss.1998). Specific grounds for an objection must be stated contemporaneously with the objection, and all objections not made at the time of testimony are deemed waived. Sellers v. State, 773 So.2d 350(¶ 11) (Miss.Ct.App.2000).

¶27. In Moody v. State, 838 So.2d 324(¶ 50) (Miss.Ct.App.2002), the defendant claimed that the instruction on aiding and abetting was defective because it did not require a finding that he “wilfully” assisted in the commission of the crimes; thereby depriving him of his “coercion” defense. At trial, Moody’s objection to the instruction consisted principally of a contention that it amounted to a “conspiracy” instruction, and that no criminal conspiracy had been charged in the indictment. Id. Objections to instructions must be based on specific articulated grounds and all objections not so stated are deemed waived. Id. (citing Crawford v. State, 787 So.2d 1236(¶ 35) (Miss.2001)). This Court found “this narrow objection argued on appeal to be different from that asserted before the trial court and, thus, procedurally barred.” Moody v. State, 838 So.2d 324(¶ 50) (Miss.Ct.App.2002).

¶ 28. In this case, the trial judge considered the jury instructions submitted and allowed the State and the defendant to make their objections. Applicable to this appeal, the State offered Instruction S-2, which read:

The Court instructs the Jury that if you find that the State has failed to prove any one or more of the essential elements of the crime of sexual battery, you must find the defendant not guilty of sexual battery. You will then proceed with your deliberations to decide whether the State has proven beyond a reasonable doubt all of the elements of the lesser crime of molestation.
If you find from the evidence in this case beyond a reasonable that:
1. Raymond Helton Friley, Jr., on or about July 31, 1995, in Warren County, Mississippi,
2. did willfully, unlawfully and felo-niously handled touched or rubbed with his hands any part of the body of [C.M.],
3. without her consent for the purpose of gratifying his lust, and
4. and at the time, Raymond Helton Friley, Jr. was over the age of eighteen years and [C.M.] was under the age of fourteen
then you shall find Raymond Helton Fri-ley, Jr., guilty of molestation.
If the State has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find Raymond Helton Friley, Jr. not guilty of molestation.

The following exchange then took place between the trial judge and defense counsel:

Defense Counsel: Judge, there was nothing brought out about another crime whatsoever. I’m going to object to this one.
Court: Well, I’m almost afraid not to give it Watkins [the defense attorney] but give me your objections. Recent cases from the Supreme Court basically say that the Court should give some — I have to give certain instructions and I feel this is one of those that I should give.
Defense Counsel: That you should give?
Court: As a lesser included offense since we do — I’m just going from what you — well, I’m just going from the Defendant’s version as given by Detective Brown. That is what he (sic) told De-tectíve Brown that in his version there was never any penetration. He does remember touching her.
Defense Counsel: Okay.
Court: I’m going to give it.

¶ 29. Continuing with the review of instructions and the objections, the trial judge next considered the State’s Instruction S-3, which read:

The Court instruct the Jury that your verdict may be in one of the following forms:
If you find Raymond Helton Friley, Jr., guilty of sexual battery, then the form of your verdict shall be as follows: “We the Jury, find the Defendant guilty of sexual battery.”
If you find Raymond Helton Friley, Jr., not guilty of sexual battery but guilty of the lesser included offense of molestation, then the form of your verdict shall be as follows: ‘We the Jury, find the Defendant guilty of molestation.” ...

The following exchange then took place between the trial judge and defense counsel:

Defense Counsel: I have no (sic) objections.
Court: It will be given.

¶ 30. The trial judge also considered the jury instructions submitted by the defendant. Specifically, the defendant offered Instruction D-5, which read:

Raymond Friley has been charged in this case with the offense of sexual battery.
If you find from the evidence in this case beyond a reasonable doubt that:
1. Raymond Friley, on or about six or seven years ago in Warren County, Mississippi, engaged in sexual penetration with [C.M.], by rubbing his hand over the vagina, without her consent, then you shall find the Defendant guilty as charged.
2. If the prosecution has faded to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find Raymond Friley not guilty of sexual battery.

(emphasis added). The following exchange then took place between the trial judge and the prosecutor:

Prosecutor: The State objects to D-5 in that it is redundant and that it is contained in S-l.
Court: It is in S-l but actually it is in S-2. You kind of combined the two of them because by rubbing his hand over the vagina is not — rubbing over the sexual penetration and also it is not sexual battery, the touching. I think S-3 and S-4 adequately defines the kind of — that he has bee charged with through the indictment in S-3 and from the testimony given by Detective Brown as to what the Defendant said that he did. The Court, the jury could find that he did, in fact, commit the crime of — given the testimony of Detective Brown of what the Defendant said he did and what [C.M.] said he did, the jury could find that he did commit the crime of unlawful touching for licentious purposes. So I’m going to refuse D-5.

(emphasis added).

¶ 31. Instruction S-2 included the elements necessary to find the defendant guilty of sexual battery (Miss.Code Ann. § 97-3-95) or child fondling (Miss.Code Ann. § 97-5-23). The defense attorney began to assert an objection on the ground that “there was nothing brought out about another crime whatsoever.” The defense attorney did not object on the grounds that the indictment was improper, that he was not charged in the indictment with child fondling or that child fondling was not a lesser-ineluded offense of sexual battery. Indeed, when the trial judge asked defense counsel to state “his objections,” the attorney declined to do so and simply responded “okay”. From the record, the remarks by defense counsel were not sufficient to preserve the issue for appeal. However, to the extent this statement qualified as an objection, the grounds for such objection merely addressed whether there was sufficient evidence to justify the instruction. The trial judge, relying on the testimony from Detective Brown and the victim, correctly determined that there was sufficient evidence for the jury to find an unlawful touching instead of actual penetration required for sexual battery.

¶ 32. The State offered S-3 as the form of the verdict. In response, the defendant’s attorney made no objection to Instruction S-3. Apparently, the defendant had abandoned the objection he previously began to assert.

¶ 33. I find no other reference in the record that defense counsel ever objected to the trial judge’s consideration of the charge of child fondling (Miss.Code Ann. § 97-5-23) on the grounds that it was not a lesser-included offense to sexual battery. The record before this Court contains numerous instances where the Court and both counsel referred to or described the charges against the defendant as “molestation,” “uneonsensual sex,” “sexually abusing,” “sexually assaulting,” “molested,” and “sexual assault,” in addition to “sexual battery.” Likewise, according to the jury instruction offered by the defendant, the defendant and his counsel were clearly aware that the charges resulted from the defendant’s unlawful touching of the genital area of a minor. Certainly, jury instruction D-5 describes conduct which would constitute fondling instead of sexual battery.

¶ 34. Accordingly, Friley failed to preserve his objection in a timely manner and failed to articulate a specific objection. Therefore, it was waived.

II. The jury was properly instructed that child fondling/molestation is a lesser-included offense to sexual battery.

¶ 35. Next, the majority’s opinion is premised on the incorrect conclusion that child molestation or fondling (Miss.Code Ann. § 97-5-23) is not a lesser-included offense of sexual battery (Miss.Code Ann. § 97-3-95).

¶ 36. Friley was indicted for the crime of sexual battery. The crime of sexual battery is codified at Miss.Code Ann. §§ 97-3-95 through 97-3-104. Within certain age restrictions, a person commits the crime of sexual battery “if he or she engages in sexual penetration with: (a) [ajnother person without his or her consent.” Miss.Code ■ Ann. § 97-3-95 (Rev. 2000). “Sexual penetration” is statutorily defined in Section 97-3-97(a):

“Sexual penetration” includes cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person’s body by any part of a person’s body, and insertion of any object into the genital or anal openings of another person’s body.

¶ 37. The crime of child fondling/molestation is codified in Miss.Code Ann. § 97-5-23(1), which in pertinent part, provides:

Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child’s consent, .:., shall be guilty of a felony....

¶ 38. The majority cites the Mississippi Supreme Court’s decision in Hailey v. State, 537 So.2d 411 (Miss.1988) and this Court’s decision in Brady v. State, 722 So.2d 151 (Miss.Ct.App.1998).

¶ 39. The majority’s opinion states that Hailey v. State, 537 So.2d 411, 416-17 (Miss.1988) stands for the proposition that “[t]he Mississippi Supreme Court has reversed a conviction of child fondling where the charge of child fondling was not an additional count in the indictment.” This is not an accurate description of the holding in Hailey. The supreme court held that an indictment for forcible rape, pursuant to Miss.Code Ann. § 97-3-65(2), did not sufficiently inform the defendant that he may face a criminal charge of child fondling, Miss.Code Ann. § 97-5-23. Hailey, 537 So.2d at 413.

¶40. Next, the majority cites Hailey and Brady v. State for the proposition that “molestation [Miss.Code Ann. § 97-5-23] is not a lesser-included offense of sexual battery.” Hailey, 537 So.2d at 414; Brady v. State, 722 So.2d 151(¶ 36) (Miss.1998).

¶ 41. Hailey was indicted for the crime of forcible rape, pursuant to Miss.Code Ann. § 97-3-65(2), of a thirteen-year-old girl. Hailey, 537 So.2d at 412. At the time of the offense, Miss.Code Ann. § 97-3-65(2) provided:

Every person who shall forcibly ravish any female of the age of twelve (12) years or upward or who shall have been convicted of having carnal knowledge of any female above the age of twelve (12) years, without her consent, by administering to her any substance or liquid which shall produce such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, upon conviction shall be imprisoned ...

Hailey, 537 So.2d at 414. The trial judge submitted a lesser-included offense instruction on child fondling, and the jury found Hailey guilty on the charge of child fondling. Id. at 412-13. The court considered whether fondling was a lesser-included offense to forcible rape and interpreted Miss.Code Ann. § 99-19-5 (1972), which provides:

Findings of jury. On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose.

Hailey, 537 So.2d at 414 (emphasis in original).

¶ 42. The court concluded that forcible rape (Miss.Code Ann. § 97-3-65(2)) required proof of force and actual penetration, which child fondling (Miss.Code Ann. § 97-5-23) did not. Hailey, 537 So.2d at 416. Therefore, the court held that child fondling was not a lesser-included offense of forcible rape, and an instruction for child fondling was not proper. Id. at 416-17.

¶ 43. Interestingly, the Hailey court discussed McBrayer v. State, 467 So.2d 647 (Miss.1985). In McBrayer, the defendant was a forty-six-year-old man who engaged in a consensual sexual relationship with a thirteen-year-old girl. The court’s opinion failed to identify whether the defendant was indicted on the charge of child fondling or statutory rape. However, he was convicted under the child fondling statute, Miss.Code Ann. § 97-5-23. McBrayer, 467 So.2d at 647-48. On appeal, the defendant asserted that the statutory rape statute, Miss.Code Ann. § 97-5-21 (Supp.1984), was applicable rather than the child fondling statute. McBrayer, 467 So.2d at 647-48.

¶ 44. At the time of McBrayer’s alleged offense, the statutory rape statute made it a crime to seduce a child under the age of eighteen who “is of previously chaste character.” Id. at 647. The court reviewed the statutory scheme established according to the statutory rape and child fondling statutes and held that:

sexual intercourse with a child under the age of 14, not of a previously chaste character, is no crime, while the foreplay leading to that intercourse can lead to a ten year prison term. We will not impute to the Legislature the intention to achieve such illogical and arbitrary results absent a more express declaration than we have been given.

Id. at 648. The court concluded that the statutory rape statute controlled and, since the minor was not of “previously chaste character,” the defendant had committed no crime. Id. The court, therefore, reversed McBrayer’s conviction for fondling. Id. at 648-49.

¶ 45. In Hailey, the court held “[w]e expressly decline to overrule McBrayer by noting it did not address the question of whether child fondling is a necessarily included offense of rape.” Hailey, 537 So.2d at 415. Hailey can reasonably be interpreted for the sole proposition that child fondling is not a lesser-included offense of forcible rape.

¶ 46. In Brady, the defendant was indicted and convicted of sexual battery involving a nine-year-old girl. Brady, 722 So.2d at 153(¶ 1). On appeal, Brady asserted that the trial court erred by not allowing an instruction on fondling as a lesser-included offense of sexual battery. Id. at 159(¶ 31). This Court, citing Hailey, held that fondling was not a lesser-included offense of sexual battery. Id. at 160(¶ 36). This Court’s reliance on Hailey was misplaced.

¶ 47. In both McBrayer and Hailey, the Mississippi Supreme Court has attempted to determine the proper construction of statutes criminalizing sexual relationships between adults and children. McBrayer, 467 So.2d at 648. In 1985, the court in McBrayer dealt with a statutory rape statute, Miss.Code Ann. § 97-5-21, that criminalized the “seduction of a child under the age of 18, provided the child is ‘of previously chaste character.’ ” Id. at 647. Similarly, in 1988, the Hailey court considered a forcible rape statute, Miss. Code Ann. § 97-3-65(2), that required the perpetrator to “forcibly ravish any female of the age of twelve (12) years or upward.” Hailey, 537 So.2d at 414. Since McBrayer and Hailey, the Legislature has amended these statutes and revised the statutory scheme criminalizing sexual relationships, which this Court in Brady failed to consider.

¶ 48. In McBrayer, the supreme court recognized a conflict between the statutes for statutory rape and fondling. McBrayer, 467 So.2d at 648. The court concluded that it made no sense for the Legislature to make it a crime for an adult to fondle a minor under fourteen who was of “unchaste character,” but not a crime to have sexual intercourse with her because of her “unchaste character.” Id. The court held that to interpret these statutes any other way would allow the fondling statute to “totally subsume the statutory rape statute.” Id. It must be noted that Miss.Code Ann. § 97-5-21 has since been repealed. See 1998 Miss. Laws ch. 549, eff. from and after July 1,1998.

¶49. Likewise, in Hailey, the court considered an earlier version of the forcible rape statute, Miss.Code Ann. § 97-3-65(2). Hailey, 537 So.2d at 413-14. At the time Hailey was indicted, the forcible rape statute, Miss.Code Ann. § 97-3-65(2), provided:

Every person who shall forcibly ravish any female of the age of twelve (12) years or upward or who shall have been convicted of having carnal knowledge of any female above the age of twelve (12) years, without her consent, by administering to her any substance or liquid which shall produce such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, upon conviction shall be imprisoned ...

(emphasis added). The Legislature has since amended this statute to make consent or force irrelevant for children under the age of fourteen. See 1985 Miss. Laws ch. 389, eff. from and after July 1, 1985. The Hailey court considered the differing elements of both fondling and forcible rape and concluded that fondling could not be a lesser-included offense of rape because fondling did not require proof of penetration and force. Id. at 416. Since consent and force are no longer required when the child is under fourteen, the reasoning in Hailey is no longer sound.

¶ 50. In Brady, this Court should not have relied on Hailey, nor should the majority rely on it now. Brady is also distinguishable from the instant case. In Brady, the defendant requested a lesser-included offense on fondling, but it was denied. Brady, 722 So.2d at 158(¶31). On appeal, this Court held that he was not entitled to it because there was “no evidence introduced by the State or introduced by Brady which would indicate that Brady was guilty of anything other than sexual battery.” Id. at 161(¶ 39). In the case before this Court, the trial judge accurately identified the testimony that was introduced to support the instruction.

¶ 51. Furthermore, in Brady, this Court considered the elements of sexual battery versus child fondling. Id. at 161(¶ 36). This Court determined that a difference in the statutes was that sexual battery required “no specific intent” and fondling required that the “offending act was performed for the purpose of gratifying the lust or indulging licentious sexual desires of the person committing the crime.” Id. I find this reasoning to defy logic. The intent necessary is included in the very definition of the crime, i.e., “sexual” battery. Miss.Code Ann. § 97-3-95 (Rev.2000). I can see no instance where a person would “sexually” penetrate the genital or anal opening of a child, or “penetrate” a child in a manner as defined in Section 97-3-97(a), that would not be for the “purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires,” as required under Miss. Code Ann. § 97-5-23.

¶ 52. In Roberson v. State, 501 So.2d 398, 400-01 (Miss.1987), the supreme court made it clear that the conduct criminalized in the sexual battery statute was “sexual” penetration. According to the majority opinion, Roberson was not considered by this Court in Brady. In Roberson, the defendant was convicted of sexual battery of a ten-year-old girl. Id. at 399. On appeal, the defendant challenged the constitutionality of the sexual battery statute, arguing that it was unconstitutionally vague. Id. Roberson’s reasoning was that the fondling statute specifically laid out the intent necessary to convict, which is gratification of lust, while the sexual battery statute did not. Id. at 400. Roberson argued that the “sexual battery statute criminalized any penetration whatsoever of the genital or anal openings of a child under the age of twelve and that a physician’s otherwise innocent insertion of an object into the genital or anal openings of a child would necessarily be a criminal act under the statute” and that a parent would similarly be subject to prosecution for the same type of innocent act. Id. A unanimous supreme court held:

Although, on its face, the definition of sexual penetration announced in § 97-3-97 encompasses any penetration, the Court holds the parameters of the definition of sexual penetration are logically confined to activities which are the product of sexual behavior or libidinal gratification, not merely the product of clinical examinations or domestic, parental functions. As stated in U.S. v. Harriss, 347 U.S. at 618, 74 S.Ct. 808, “[I]f [the] general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.”

Roberson, 501 So.2d at 400-01 (emphasis added).

¶ 53. A lesser-included offense instruction may be given if the more serious offense includes all the elements of the lesser offense. Sanders v. State, 479 So.2d 1097, 1108 (Miss.1985). Roberson clearly establishes that the “sexual penetration” referred to in Miss.Code Ann. § 97-3-95 results only from sexual behavior or libidinal gratification. Roberson, 501 So.2d at 400-01. Thus, the statutory construction of Miss.Code Ann. § 97-5-23 criminalizes any action by an adult to “handle, touch or rub” a child for any “sexual” purpose, and Miss.Code Ann. § 97-3-95 imposes a more substantial penalty for any similar conduct which “sexually” penetrates the genital or anal openings of a child, including by definition actions that consist of eunnilingus, fellatio, buggery or pederasty.

¶ 54. The majority’s interpretation of these statutes ignores the actions that are statutorily defined as penetration. One who engages in “eunnilingus, fellatio, buggery or pederasty” with a child also touches, handles or rubs the genitals of a child. One who actually penetrates the genital or anal openings of a child must also touch, handle or rub the genital or anal openings of a child. Indeed, the evidence in this case was that Friley placed his hand down the victim’s pants and the jury was to decide whether he (a) touched, handled or rubbed her genital area, or (b) proceeded further to use his finger(s) to actually “penetrate” her vagina. Surely, the legislative intent of these statutes, contrary to the majority’s reasoning, is to provide different punishment based solely on the invasiveness of such actions. If a person “sexually” touches, handles or rubs the genitals then the punishment is two to fifteen years. See Miss.Code Ann. § 97-5-23 (Rev.2000). If a person “sexually” penetrates the victim, which includes actual penetration or as it is statutorily defined, then the punishment is not more than thirty years. See Miss.Code Ann. § 97-3-101(1) (Rev.2000). To consider the fondling statute as a lesser-included offense would not nullify the fondling statute, as the majority suggests. Instead, it would simply give proper construction to these statutes that provide for progressive punishment for progressively worse crimes.

¶ 55. The majority also states that “molestation is recognized as a separate offense from sexual battery as defendants are frequently charged with both crimes simultaneously.” However, each of the cited cases deals with separate crimes that resulted from separate and distinct sexual encounters. See Byars v. State, 835 So.2d 965(¶3) (Miss.Ct.App.2003) (“Byars had sexually molested her on three different occasions”); Taylor v. State, 836 So.2d 774(¶ 4) (Miss.Ct.App.2002) (three separate incidents of sexual abuse-where he either inserted his penis and his finger in her vagina or rubbed her vagina while he masturbated); and Todd v. State, 806 So.2d 1086(¶ 1) (Miss.2001) (four separate “sexual encounters”).

¶ 56. Accordingly, I would affirm the lower court’s conviction of Friley.

MYERS AND CHANDLER, JJ., JOIN THIS SEPARATE OPINION.

      . The words "fondling” and "unlawful touching” are also used interchangeably with molestation when referring to a crime committed under Miss.Code Ann. § 97-5-23 (Rev.2000).

      . Miss.Code Ann. § 97-5-23 has been identified and referred to by many different names. Regardless of whether it is described as the molestation statute, the child fondling statute, the gratification of lust statute, or the unlawful touching statute, the applicable statute under consideration is Miss.Code Ann. § 97-5-23.

      . The court specifically noted that this statute had since been amended. Id. n. 1.

      . This statute has since been repealed. See 1998 Miss. Laws ch. 549, eff. from and after July 1, 1998.


author: GRIFFIS, J.,

text:
    Ken KING a/k/a Ken Marc King, Appellant, v. CITY OF RICHLAND, Mississippi, Appellee.
    No. 2002-KM-01447-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.
    Rehearing Denied Oct. 21, 2003.
    V.W. Carmody Jamie Kelly McBride, Jackson, attorneys for appellant.
    Jay Max Kilpatrick Paul B. Henderson, Jackson, attorneys for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. This matter comes before the Court as an appeal from the decision of the Circuit Court of Rankin County, sitting as an intermediate appellate court. The circuit court affirmed the convictions of Ken King on two misdemeanor counts, first offense driving under the influence (DUI) and careless driving. King was originally convicted on these charges in the Municipal Court of the City of Richland. King appealed his convictions to the County Court of Rankin County, where the matter was tried de novo. The jury of the county court convicted Bang on both counts.

¶ 2. The City of Richland does not raise the matter of this Court’s jurisdiction; however, jurisdiction may not be conferred by agreement of the parties. Donald v. Reeves Transp. Co. of Calhoun, Ga., 538 So.2d 1191, 1194 (Miss.1989). This Court must remain mindful of questions relating to jurisdiction and should, if appropriate, raise such issues on its own motion. Michael v. Michael, 650 So.2d 469, 471 (Miss.1995).

¶ 3. Section 11-51-81 of the Mississippi Code Annotated. (Supp.2001) governs a defendant’s right of appeal from a proceeding originating in a municipal court and it provides that:

there shall be no appeal from the circuit court to the supreme court of any case civil or criminal which originated in a justice of the peace, municipal or police court and was thence appealed to the county court and thence to the circuit court unless in the determination of the case a constitutional question be necessarily involved and then only upon the allowance of the appeal by the circuit judge or by a judge of the supreme court.

The Circuit Court of Rankin County found that the appeal involved a constitutional question and complied with Miss.Code Ann. § 11-51-81 (Supp.2001).

¶ 4. However, in this case, King did not file a timely appeal of the circuit court’s order affirming his convictions. King failed to file his appeal within thirty days of the circuit court’s order as required by Mississippi Rule of Appellate Procedure 4(a). The circuit court found that King did not receive notice of the circuit court’s order and that, pursuant to the Mississippi Rules of Appellate Procedure 4(g) and 4(h), good cause existed to allow King additional time to perfect his appeal. The circuit court then entered an order granting King an out-of-time appeal. We find Mississippi Rule of Appellate Procedure 4(h) dispositive and hold that it is not necessary to address whether the appeal involved a constitutional question or address the merits of King’s appeal.

¶ 5. In Harris v. State, this Court held:

When a notice of appeal is not timely filed within thirty days of judgment, a trial court may reopen the time for appeal if ‘a party entitled to receive notice of entry of a judgment or order did not receive such notice ... within 21 days of its entry’ and if ‘no party would be prejudiced.... ’ M.R.A.P. 4(h) A request to reopen is to be filed with the trial court “within 180 days of entry of the judgment or order or within 7 days of receipt of such notice [of the entry of judgment], whichever is earlier....”

Harris v. State, 826 So.2d 765, 767(¶ 10) (Miss.Ct.App.2002). This Court further held that “[w]e find nothing that allows the suspension of those specific requirements.” Id. at 768(¶ 13).

¶ 6. In this case, the circuit court’s order affirming the convictions was entered on December 21, 2001. “The last date that a request for an out-of-time appeal may properly be filed under Rule 4(h) is 180 days after the judgment.” Id. at (¶ 11). Therefore, King had to file his motion for an out-of-time appeal no later than June 19, 2002. Instead, he filed his motion for an out-of-time appeal on July 9, 2002, two hundred days after the filing of the circuit court’s judgment.

¶7. King did not file a notice of appeal within 180 days of the original entry of the order, as required by M.R.A.P. 4(h). Furthermore, neither the circuit court nor this Court has the authority to suspend this time limit. Harris, 826 So.2d at 768(1118). Therefore, we find that the circuit court erred in allowing King’s out-of-time appeal, and this Court is without jurisdiction to consider this appeal on the merits.

¶ 8. THIS APPEAL IS HEREBY DISMISSED FOR LACK OF JURISDICTION DUE TO THE UNTIMELINESS OF THE NOTICE OF APPEAL. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS AND CHANDLER, JJ„ CONCUR. IRVING, J., CONCURS IN RESULT ONLY.