author: IRVING, J., SOUTHWICK, P.J.,

text:
    Mary Lynn FAGAN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01336-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.
    Rehearing Denied Feb. 3, 2004.

      William B. Jacob, Joseph A. Kieronski Jr., Daniel P. Self Jr., Meridian, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. A Clarke County jury convicted Mary Lynn Fagan of three counts of embezzlement. In her appeal of her conviction and sentence, she alleges that the trial court erred (1) in not dismissing the case based on insufficiency of the evidence, (2) in not granting a mistrial because of the prosecutor’s and a witness’s reference to a polygraph examination, (3) in allowing the State to use certain documents in violation of discovery rules and a previous order of the court, (4) in allowing testimony of other crimes, and (5) in failing to grant a hearing on a motion for a new trial based on newly discovered evidence.

¶ 2. We find no error in any of Fagan’s assertions; therefore, we affirm the rulings of the trial court and the subsequent conviction and sentence.

FACTS

¶ 3. Mary Lynn Fagan worked as a deputy clerk in the Clarke County Justice Clerk’s office from 1994 until 1999. After money was discovered missing from the clerk’s office, Fagan was indicted for embezzling the missing money. Specifically, she was indicted for embezzling money on three separate occasions: February 19, June 16 and 19, 1999. Throughout 1999, Fagan worked with two other deputy clerks who also received money, issued receipts and made deposits. The State’s case was based on circumstantial evidence.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 4. Fagan attacks the sufficiency of the evidence on several grounds. First, she contends that there was a common cash drawer and that the State failed to prove that she had exclusive control of it. Second, she argues that the State failed to prove certain elements of the crimes, namely, failure to deposit the funds, ownership of the funds, an intent to defraud, and conversion. She also submits that the evidence was consistent with reasonable theories indicative of innocence.

1. Sufficiency of the Evidence

¶ 5. The financial discrepancies in the clerk’s office were investigated by Earl Smith of the State Auditor’s office. Smith testified that when he first came to the clerk’s office and advised everyone that he was there to do an audit of the clerk’s financial records, Fagan came to him and “started to explain to me that the problems that existed were the result of computer problems, and she had a list and she wanted to show me how the computer was skipping receipts.” Fagan had previously told Teresa Smith, the clerk, that the problem was with the computer and that she would work with Data Systems to correct the problem.

¶ 6. As already noted, the State’s evidence was entirely circumstantial. However, it showed a common thread pointing to Fagan. The clerk testified that there was no problem with the computer and that she did not know that it was possible to backdate receipts on the computer. Another deputy clerk, Shundra Staten, testified that she did not have any knowledge of backdating receipts, that she had never received any money on behalf of the justice clerk’s office and kept it for her personal use, and that she had never failed to make a deposit from the justice clerk’s office.

¶ 7. The three receipts, underlying the charges against Fagan for mishandling of funds, all had either Fagan’s initial or name on them, and when the computer reprinted the receipts, the name of the operator doing the reprinting appeared on the receipts. One of the receipts was received by Fred Kennedy who paid a $452 DUI ticket for his grandson. Kennedy testified that the money for the ticket was given to Fagan. However, the money was not included in the day’s deposit. The receipt, retained by the clerk’s office, was voided. Of course, Fagan denied voiding the receipt.

¶ 8. Jason Varner testified that he received a ticket on May 21, 1999, for DUI, first offense. He paid a $432 fine on June 16, 1999. He was “pretty sure” that he paid the money for the fine to Fagan. The receipt contains the initials “L.F.” Although the fine was paid on June 16, 1999, the computer indicated that the receipt was recorded on June 18, 1998. The money was not listed on the daily receipts, nor was it deposited in the clerk’s account in either 1998 or 1999.

¶ 9. Karla Mooney paid a $366 fine for her husband, Michael, on June 15, 1999. Karla testified that she handed the money to Fagan and received a receipt for it. The receipt contained the initials “L.F.” The detailed settlement statement for June 15, 1999, did not include the $366 or Michael’s name, nor was the $366 included in the bank deposit for June 15, 1999. When Earl Smith had the detailed settlement statement for June 15, 1998, rerun, the $366 entry appeared. However, the detailed settlement statement, which was actually run on June 15, 1998, did not have an entry for Michael Mooney, and the bank deposit for June 15, 1998, did not include the $366 paid for Michael Mooney.

¶ 10. The evidence was that Fagan was the only clerk who knew how to backdate receipts in the computer. Considering this fact, along with the fact that Fagan told Earl Smith that the problem was in the computer, we are satisfied that the evidence was sufficient to sustain the verdict. For us to overturn the jury’s verdict on this evidence, we would have to find that reasonable and fair-minded persons could not have found Fagan guilty with respect to one or more of the elements of the offense. Harveston v. State, 493 So.2d 365, 370 (Miss.1986). That is not the case here.

¶ 11. Fagan also asserts that she was at least entitled to a new trial. A motion for a new trial implicates the discretion of the judge, and we will reverse when the trial judge has abused his discretion in denying the motion. Malone v. State, 486 So.2d 360, 366 (Miss.1986). We find no abuse.

2. Reference to the Polygraph Examination

¶ 12. During the redirect examination of the State’s key witness, Earl Smith, the following colloquy occurred:

Q. Did you find or anybody else find any problems with that computer?
A. No, sir.
Q. What were the problems with the computer that were making these documents look like this?
A. The problem was—
BY MR. JACOB: Object to lack of foundation.
BY THE COURT: All right, I’ll let him testify if he knows as a result of his investigation. Objection overruled. You may answer.
A. As a result of my investigation, it was determined that the problem was that documents were changed, and this is what would have caused what may have been or appeared to be a computer error.
Q. And you said that you did not know if Lynn Fagan changed those things. What did your investigation reveal about that? Who made these changes?
A. I do not know specifically who made the changes other than the fact that the changes were made.
Q. Well, there are two other clerks in the office; is that right?
A. That’s correct.
Q. And did your investigation not eliminate the two of them?
BY MR. JACOB: We object to leading and especially in light of the witness’ prior answer.
BY THE COURT: Sustained for leading.
Q. (Continuing): What did your investigation reveal about the other two ladies?
MR. JACOB: We object to hearsay now.
BY THE COURT: All right, I’m going to sustained [sic] that counsel.
Q. (Continuing): I don’t want anything they told you. What did your investigation reveal about whether the two of them committed this crime?
BY MR. JACOB: Object to hearsay.
BY THE COURT: Well, I’m going to sustain it.
Q. (Continuing): I’m not talking about anything they said to you. In your investigation, your audit, did it reveal their involvement in this?
BY MR. JACOB: Object to hearsay—
BY THE COURT: Well, your question is does he have an opinion of whether the other two are guilty?
BY MR. MITCHELL: No, sir, what did his investigation show?
BY THE COURT: Well, I’m going to sustain the objection.
Q. (Continuing by Mr. Mitchell): Okay, let’s go through them one by one. What did you do to rule out the other two Clerks?
BY MR. JACOB: We object to this, your Honor. It is improper redirect, and it’s, hearsay.
BY THE COURT: Objection is overruled. I think he can answer that question.
Q. (Continuing) What was the first thing you did?
A. Okay, the first thing I did was I went in and looked at the receipts, compared those with daily reports. I secured bank records and looked at such things as who made deposits, who receipted for money. We interviewed each clerk. The other two clerks or all of the clerks were provided with the opportunity to take a polygraph—
BY MR. JACOB: Your Honor, we object.
BY THE COURT: Sustained.
A. (Mr. Smith): We—
Q. No results — you can’t say any results of a polygraph—
BY MR. JACOB: May we approach—
Q. The question I have—
BY THE COURT: At the next break, you may — objection is sustained.
Q. (Continuing by Mr. Mitchell): The next question I have is did the other two clerks agree to that?
A. Yes—
BY MR. JACOB: We object.
Q. All right. So, they cooperated—
BY THE COURT: Wait just a minute, counsel.
BY MR. MITCHELL: All right.
BY THE COURT: You have an objection to what, questioning the other two clerks?
BY MR. JACOB: May we approach?
BY MR. MITCHELL: The question wasn’t he asked them to take a polygraph; the question is just did they agree to do that.
BY THE COURT: Right, and your objection is sustained. It is not admissible or relevant.
Q. (Continuing): All right, did the two clerks cooperate in every way you asked them to cooperate?
A. Yes, they did—
BY MR. JACOB: We object to this, your Honor, especially in light of the prior statement, the prior question.
BY THE COURT: Well, overruled as to that particular objection, about cooperation during his investigation.
Q. (Continuing): They did cooperate?
A. Yes, they did.
Q. Okay. Did they refuse to do anything you asked them to do to help with the investigation?
BY MR. JACOB: Object to leading.
BY THE COURT: All right, rephrase it. Sustained. You’re suggesting the answer.
Q. (Continuing): What if anything did they do — did they fail to cooperate with you?
A. Nothing.

¶ 13. When the above exchange is properly analyzed, it seems readily clear that the prosecutor was not deliberately attempting to circumvent the judge’s ruling but was struggling to properly word his questions so as to avoid a hearsay objection to which he was being constantly subjected. It seems clear also that the jury was never informed that the other clerks took, if indeed they did, and passed a polygraph examination.

¶ 14. If the question or comment in issue had been whether Fagan was offered and refused a polygraph examination or whether the other two possible suspects took and passed a polygraph examination, we might have a different view of things. But here, Fagan’s defense, at least in part, was that either one of three persons could have taken the money and that it was impossible to tell who did it. Surely, with this type of defense, the jury was entitled to know what the investigation revealed regarding the other two prospects since apparently they were not charged.

¶ 15. We do not believe that the sudden, and apparently unexpected, comment from Smith regarding the polygraph examination nor the subsequent questions by the prosecutor operated to deprive Fagan of a fair trial. Even if some prejudice occurred, it certainly was not of sufficient magnitude to cause reversal where, as here, the defense bypassed an opportunity to have the jury queried as to the effect, if any, which the statement may have had on its ability to render a fair verdict based on the admissible evidence. It is noteworthy that the trial judge offered to give a curative instruction, as well as to withhold ruling on the motion for a mistrial until after he queried the jury. Since Fagan declined the court’s offer, she should be made to live with the consequences of her decision, especially since the State produced a strong circumstantial evidence case against her.

¶ 16. Although we disagree that, under the specific facts of this case, the reference to the polygraph examination entitled Fagan to a mistrial, we want to be clear that, as pointed out by Fagan in her brief, offers to take a polygraph examination are not admissible in trial, whether offered by the prosecution or the defense. Weatherspoon v. State, 732 So.2d 158, 162(¶ 13) (Miss.1999). However, automatic reversal is not required when evidence is admitted pertaining to a witness’s offer to take a polygraph examination. Id. at (¶ 15). “Whether or not the admission of this type inadmissible evidence requires reversal necessarily requires a case-by-case analysis.” Id. Here, the other two clerks did not testify that they had offered to take, or had taken, a polygraph examination. Rather, the investigator, Smith, testified that he offered all of the clerks an opportunity take a polygraph, and the other two clerks agreed to do so. No evidence was admitted as to whether they did or did not take the examination. We find no reversible error in what occurred.

S. Use of Documents

¶ 17. The trial court prohibited the State from utilizing certain documents because they had not been disclosed to Fa-gan as required by the rules. However, during the defense’s case, the prosecution was allowed to use the documents during its cross-examination of Fagan. Fagan, citing Glaskox v. State, 659 So.2d 591 (Miss.1995), argues that the trial court erred in permitting this limited use. We find Glaskox easily distinguishable, as Glaskox involved the willful and deliberate refusal to make reciprocal discovery and an attempt to use certain documents, as a part of the defendant’s case-in-chief, even though the documents had not been produced to the State prior to trial. Id. at 593. While it is true that the defendant in Glaskox was attempting to use the documents for impeachment purposes, that is so only because he called the prosecuting witness as an adverse witness as a part of his case. He forewent the opportunity to cross-examine the prosecuting witness during the State’s case-in-chief. Id.

¶ 18. We find no evidence in the record that the State willfully withheld production of the documents to get some kind of tactical advantage as did the Glaskox defendant. Moreover, in the case-at-bar, the prosecution did not attempt to introduce the documents as a part of its case-in-chief. We find no abuse of discretion on the part of the trial judge in permitting Fagan to be cross-examined on the documents. This allegation of error is without merit.

U- Other Crimes Evidence

¶ 19. On redirect examination, in response to a series of direct examination questions to Fagan designed to show that someone else may have committed the crimes, the prosecutor asked Carl Smith the following question:

The point I’m getting to is did you find discrepancies that occurred in the office consistent with the ones we’ve presented here that occurred before the other two clerks were there?

Fagan’s counsel objected, but the court overruled the objection, finding that Fa-gan’s counsel had essentially opened the door during his cross-examination with a line of questions designed to show that someone else might have been the culprit. Thereafter, Smith testified that he did find similar problems prior to the other two clerks’ employment in the justice clerk’s office.

¶ 20. Our review of the record does not reveal that Fagan made an “other crimes” objection when the question was asked. For sure, she objected and stated that she had a motion which was overruled by the trial court. The only objection recorded when the question was asked was an objection that the question was an attempt to skirt a prior order of the court barring such inquiry. Nevertheless, we find no error with permitting the question to be asked and answered. In this case, the identity of the perpetrator was an issue. Rule 404(b) of the Mississippi Rules of Evidence permits evidence of other crimes, wrongs, or acts to prove identity. Fagan does not make a Mississippi Rules of Evidence Rule 403 balancing argument. Therefore, we do not address it.

5. Failure to Grant a Hearing on Motion for New Trial

¶ 21. Fagan complains that the trial court erred in not granting her a hearing on her motion for a new trial. The record reflects that the notice of appeal was filed on August 23, 2001, and the motion for a new trial, based on an allegation of newly discovered evidence, was not filed until August 2, 2002. We agree with the State that the filing of the notice of appeal divested the trial court of jurisdiction to hear the motion. Martin v. State, 732 So.2d 847, 851(¶) (Miss.1998).

¶ 22. The dissent argues that the allegations of newly discovered evidence contained in Fagan’s motion for a new trial warrant a reversal in this case. The dissent, however, does not provide any authority enabling us to consider the merits of the allegations of the motion which was presented to the trial court long after the trial court had lost jurisdiction of the case. If the trial judge lacked jurisdiction, we acquired none. We agree with the trial court that the matter may be presented via a post-conviction relief motion.

¶ 23. Moreover, the motion characterizes the newly discovered evidence as the termination of Teresa Smith due to missing funds which occurred after Fagan’s termination. Further, we note that the motion does not allege that Teresa Smith was terminated for appropriation of the specific funds in question here. The fact that Teresa Smith may have taken some funds does not in the least prove that Fagan also did not take other funds. In a post-conviction relief forum, the circumstances giving rise to Teresa Smith’s termination, as well as the specifics of the appropriated funds, may be explored for the impact, if any, they may have on Fa-gan’s conviction.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF CLARKE COUNTY OF CONVICTION OF THREE COUNTS OF EMBEZZLEMENT AND SENTENCE OF THREE CONCURRENT TEN-YEAR TERMS, WITH EIGHT YEARS SUSPENDED AND FIVE YEARS’ SUPERVISED PROBATION ON EACH COUNT, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, PAY FINE OF $5,000 FOR EACH COUNT AND RESTITUTION OF $33,194.50 FOR COUNT I, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

BRIDGES, THOMAS, LEE AND MYERS, JJ., CONCUR. SOUTHWICK, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MCMILLIN, C.J., CHANDLER AND GRIFFIS, JJ. KING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

SOUTHWICK, P.J.,

dissenting:

¶ 25. The majority finds that the prosecutors’ references to polygraph examinations and to the cooperation of other possible suspects were inadvertent and insignificant; moreover, the error was relinquished as a basis for reversal because the offer to admonish the jury was rejected. Perhaps there was inadvertence, but regardless, I disagree with the latter two conclusions.

¶ 26. With respect, I dissent.

¶ 27. The case was prosecuted based on circumstantial evidence. Fagan worked with two other deputy clerks at the court. The three worked interchangeably, with each receiving money, issuing receipts, and making deposits. There was no direct evidence demonstrating Fagan’s conversion of funds. The key jury consideration was whether Fagan was sufficiently likely among the available suspects to have committed this crime. That is why the error here — informing the jury that everyone else had “cooperated” and inferentially had passed polygraph examinations — was so important.

¶ 28. Since this is a circumstantial evidence case, much weight must be given to inferences. In reviewing the conviction, therefore, we should look to the evidence and all reasonable inferences in a light most favorable to the State. Jackson v. State, 815 So.2d 1196, 1202 (Miss.2002). The circumstantial evidence that it was Fagan and not anyone else who converted the money was the following. The manner in which the disappearance of the funds was initially hidden was to alter the computer entry for the payment so as to make it appear that the money had been received the previous year. There was testimony that Fagan knew how to do this. The other employees denied that they knew how to do so. All three of the payments on which the indictment was based had receipts signed by Fagan. As the State explained in its brief, the evidence “supports a finding that Lynn Fa-gan was the only one of the three who knew how to backdate the computer. Lynn Fagan received the payments that disappeared.” There was also testimony that when an investigator first confronted Fagan with the problem, she stated that the problem was with the computer.

¶29. If the testimony from other employees was believed that they did not know how to backdate entries on the computer, if the jury concluded that it was more likely that a clerk would convert money for which she had signed the receipt as opposed to converting money receipted by other deputy clerks, if Fagan’s initial statement to investigators was taken as suspicious and inculpatory, then the circumstances were available to convict. That was a jury decision.

¶ 30. Taking this closely balanced case, I turn to the error that added inappropriate evidence onto the scale. The district attorney asked investigator Smith what was done to rule out Fagan’s co-clerks as suspects. Smith testified that each clerk was given an opportunity to submit to a polygraph examination. Fagan’s immedi: ate objection was sustained. The district attorney then told his witness, in front of the jury, not to refer to results of polygraph examinations. Defense counsel asked that the attorneys approach the bench. The judge denied that request until a break in the proceedings. Did the other deputy “clerks agree to do that,” meaning, had they agreed to take polygraph tests, was the next question. Again there was an objection. Before it was sustained, which it was, the district attorney managed to state, which at best was a leading question, “so, they cooperated.” The court reporter did not type it with a question mark; perhaps it did not sound like a question. Still in front of the jury, the district attorney managed to refer to the matter one more time by stating “The question wasn’t he asked them to take a polygraph; the question is just did they agree to do that.”

¶ 31. Each ruling by the trial judge was to sustain the objection. In the ensuing motion for mistrial, the trial judge offered the following relief:

If you want me to admonish the Jury and unring the rung bell as you say, I’ll be more than happy to do that and then question the Jury whether they will follow the Court’s instructions to disregard any questions or reference to any possible polygraph examination by anybody in this case, and then make a ruling depending on how they respond, or would you rather just leave it alone because I’m convinced as of right now that that inference or reference in this trial is not serious enough to justify the granting of a mistrial or result in some miscarriage of justice. It’s relatively insignificant in the context of this trial in my opinion.

Fagan’s counsel responded to the court’s offer by noting, “Your Honor, as to the choices given, we have no choice at this time, but to not say anything further at this stage.” It is evident that the trial judge did not much think that the matter could be cured by an instruction. The trial judge also found that the distortions caused by the district attorney’s efforts were not very significant.

¶ 32. The inadmissibility of polygraph evidence has been firmly stated: “any evidence pertaining to a witness’s offer to take a polygraph, refusal to take a polygraph test, the fact that a witness took a polygraph test or the results of a polygraph test is inadmissible at trial by the State or by the defense.” Weatherspoon v. State, 732 So.2d 158, 163 (Miss.1999). Inadmissibility is not open to dispute. Our only task is to determine if the improper evidence likely affected the proceedings.

¶ 33. Error occurred. The prosecution was successful in making the jury aware that there were polygraph examinations, and the inference was present that the other deputy clerks took them, i.e., they “cooperated.” When three people are potential perpetrators of a crime and two of them cooperate in the investigation, the third is placed under considerable suspicion. To have opened this line of inquiry would seem based on little more than trying to create that inference.

¶ 34. Before assessing whether this error was correctable, I consider a related issue. Fagan also contends that the lower court improperly allowed evidence of “other crimes” beyond the scope of the indictment. Fagan was indicted for offenses occurring separately in February and June 1999. The record reflects that the original investigation covered many other alleged offenses spanning longer periods of time. An indictment of at least fifty counts was initially issued against Fagan. That indictment was dismissed. Fagan was re-indicted on three counts.

¶ 35. The district attorney questioned investigator Smith about these older examples of missing funds. The witness indicated that of the three deputy clerks employed on the dates mentioned in the indictment, Fagan was the only one who also worked at the clerk’s office at the earlier dates at which funds may also have been taken. Investigator Smith was asked whether “discrepancies that occurred in the office [at earlier times were] consistent with the ones we’ve presented here that occurred before the other two clerks were there?” The trial court overruled Fagan’s objection, as well as her subsequent motion for mistrial. The lower court reasoned that Fagan’s defense theory of shifting fault to her co-workers created a window through which the State could introduce such evidence.

¶ 36. Criminal defendants are protected from having evidence of other crimes introduced to prove new actions in conformity therewith; this principle is not violated if the other bad acts help established the identity of the perpetrator. M.R.E. 404(b). Even if the other crimes evidence was admissible, the salient point for our review is that again the district attorney dragged in the prohibited issue of “cooperation,” which was his oblique approach to the banned polygraph evidence. After asking about these earlier time periods, the prosecutor then asked whether the investigator went “through the same kind of things with the two clerks who worked with Lynn Fagan prior to 1997 to exclude them as possible suspects?” This was asked despite the clear rulings to avoid all reference, direct or indirect, to the polygraph matter. The defense objection quite rightly was that the prosecutor was engaged in “an attempt to circumvent the Court’s prior Orders.” If the prosecutor had another purpose, it is not apparent. Regardless of whether the former clerks took polygraph tests, the implication was left that they had and passed. The objection was sustained.

¶ 37. The majority helpfully quotes a significant part of the questioning. It concludes that the problems were the result of the prosecutor’s being surprised and then struggling to get an answer, never intending to inject the issue of a polygraph. That appears charitable to me but also irrelevant. I would reverse because of effect regardless of intent. Whatever the prosecutor was attempting, what he did was to create this improper prejudice, incurable by an admonishment.

¶ 38. Though the serial references and allusions to polygraph examinations unquestionably were error, and the majority concedes as much, does the error require reversal? Reversal is not automatic upon admission of such evidence. Weather-spoon, 732 So.2d at 163. Instead, what is important is the “nature of the error and the circumstances attendant to its disclosure.” Id.

¶ 39. Included in the attendant circumstances are this unambiguous case law that prohibits reference to polygraph examinations, and the fact that before trial it was ordered “that the prosecution and all of its witnesses are limited and prohibited from making any reference, statement or insinuation concerning the taking or not taking of any polygraph examination or any results thereof.” Still the evidence came in.

¶ 40. Fagan’s refusal to have the jury admonished was not a waiver of her ability to challenge the evidence. I agree with the trial judge that this was one of those rare situations in which the error was beyond cure. The trial judge inferred this in his reference to the futile effect of trying to un-ring a bell. The request for a jury admonishment is not pure but mandatory formalism. If an instruction has a reasonable potential to cure the error, then it must be requested. When it does not and in fact may exacerbate the error, no procedural default occurs in refusing to have one given. Vickery v. State, 535 So.2d 1371, 1380 (Miss.1988).

¶ 41. It is true that the trial judge is in the best position to determine the seriousness of the effect on a jury. Blocker v. State, 809 So.2d 640, 643 (Miss.2002). That premise, though, does not cancel our obligation deferentially to review the effect of trial errors. Once the trial was over and the complete evidence available to the jury was known, this error was too substantial. Knowing that the other clerks had cooperated and Fagan had not, knowing that each clerk was in a similar position to have made the conversion, and knowing that there were some credibility choices to make that would lead to a guilty or not guilty determination, the jury in reaching its verdict cannot reliably be said to have been untainted by this unquestionably inappropriate injection of the polygraph examination point. The “nature of the error and the circumstances attendant to its disclosure” are what lead us to conclude that reversal is required. Weather-spoon, 732 So.2d at 163.

¶ 42. Fagan’s final argument attacks the lower court’s denial of her motion for new trial. She contends that newly discovered evidence, namely the dismissal of Clarke County Justice Court Clerk Theresa Smith based on funds misappropriated after Fagan’s termination, would likely produce a different result at a new trial. That is an important additional matter that shows the need for a new trial in light of the error regarding the polygraph examination.

¶ 43. I would reverse and remand for a new trial or such other proceedings as are appropriate.

McMILLIN, C.J., CHANDLER AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

      . It should be pointed out that this was Fa-gan’s second post-trial motion. The first motion, challenging, inter alia, the sufficiency and weight of the evidence was timely filed and denied.


source: Caselaw Access Project

author: GRIFFIS, J., MYERS, J.,

license: Public Domain

text:
    Bob HANEY, Appellant, v. Pat (Robertson) HANEY, Appellee. Bob Haney, Appellant, v. Pat Haney, Appellee.
    Nos. 2002-CA-00244-COA, 1999-CA-02078-COA.
    Court of Appeals of Mississippi.
    Nov. 25, 2003.
    Rehearing Denied March 9, 2004.

      Timothy E. Ervin, Merrida Coxwell, Jackson, attorneys for appellant.
    Robert M. Carter, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. The dissolution of the marriage of Bob and Pat Haney returns once again to this court. Here, we consider Bob Haney’s appeal of the chancellor’s revised opinion and judgment.

¶ 2. In Haney v. Haney, 788 So.2d 862, 866 (¶ 11) (Miss.Ct.App.2001), this Court reversed and remanded this case on two grounds. First, we reversed the case because the chancellor failed to make specific findings of fact and conclusions of law to support the award of lump sum alimony to Pat, based upon factors established in Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988). We remanded the case for the chancellor to “illustrate his analysis of the marriage” under these factors. Haney, 788 So.2d at 865-66(¶ 11). Second, we reversed and remanded the case for the chancellor to determine if Pat Haney was eligible to receive an award of attorney’s fees. Id. at (¶ 13). We are of the opinion that the chancellor is again in error; therefore, we reverse and remand for further proceedings consistent with this opinion.

FACTS

¶ 3. The facts relevant to this appeal are substantially the same as in the original appeal, we recite those facts with a few additional facts.

Bob and Pat Haney were married on February 11, 1996. At the time of marriage, Pat was employed with Forms and Supplies in Memphis, Tennessee, and Bob was employed with Ameron. Shortly after the couple were married, Pat was diagnosed with several ailments, including an inner ear infection, digestive track problems, fibromyalgia, migraine headaches, and others. These various conditions resulted in thousands of dollars in health care costs and forced Pat to quit her job. Each maintained separate homes throughout the course of their marriage. The couple separated on or about July 7, 1997. No children were born from the marriage.
A temporary hearing was convened on November 10, 1997, and was reconvened and concluded on December 15, 1997. The chancellor issued an opinion and temporary judgment on January 8,1998, finding that both parties had substantial estates which they possessed prior to the marriage, but nevertheless ordering Bob to pay Pat’s car note in the amount of $873.67 per month and temporary support of $850 per month.
A second hearing was held on September 29, 1999. The chancellor subsequently issued an opinion and judgment in which he found Pat to have non-marital assets totaling $115,930 and Bob to have non-marital assets totaling $482,464. The chancellor further found that Pat’s monthly income was $1,801 and that her monthly expenses were $3,350. Bob’s net monthly income was found to be $7,539 but no finding was made as to Bob’s monthly expenses.
The judgment of the chancellor also noted that at the time of the temporary hearing- in 1997, Pat’s separate investments totaled $65,000, but that at the time of judgment those investments had been reduced to $42,000. Bob’s separate investments at the time of the temporary hearing amounted to $396,964, but they grew to $618,214 by the time of judgment. A key factor in the chancellor’s decision was the fact that Bob had canceled Pat’s medical insurance coverage without her knowledge, and that as a result, Pat was forced to pay some $19,500 in medical bills from her own funds.
Those assets classified as marital assets in the trial court’s opinion and judgment were a 1996 Volvo valued at $14,250, $5,898.45 in checking accounts held in Pat’s name, $8,848 in checking accounts held in Bob’s name only, and the $221,250 growth on Bob’s separate investments between the time of the temporary hearing and the time of judgment. The chancellor granted Pat the exclusive use and possession of the Volvo and ordered Bob to pay Pat “lump sum alimony” in the amount of $104,974.77, which he found to be “one half of the marital assets” less the value of the Volvo and the $5,898.45 which Pat held in her separate checking accounts.

Haney, 788 So.2d at 864 (¶¶ 2-6).

¶ 4. On remand, the chancellor sent a letter to counsel asking for a statement of their positions on the remanded issues. Bob’s counsel requested an opportunity to present testimony and argument. The chancellor rejected this request. On December 5, 2001, the chancellor issued a revised opinion and judgment based solely on the prior evidence. The chancellor’s judgment discussed the Cheatham factors, ordered Bob to pay lump sum alimony in the sum of $104,974.77, and ordered Bob to pay Pat’s attorney’s fees in the amount of $5,696.39.

ANALYSIS

¶ 5. Following the standard of review, which we stated in Haney, 788 So.2d at 864-65(¶ 7), we consider three assignments of error.

1. Whether the chancellor erred by declining to hear additional testimony or conduct a hearing after the case was remanded.

¶ 6. Bob argues that the chancellor erred by declining to hear additional testimony after the case was remanded. We agree.

¶ 7. A concise review of the chronology is important. Pat and Bob were married on February 11, 1996, and they separated on July 7, 1997. A temporary hearing was held on November 10 and December 15, 1997. The temporary judgment was entered on January 8, 1998. A second hearing was held on September 29, 1999, and the chancellor’s initial opinion was rendered November 10, 1999. After appeal, our decision was released on June 26, 2001. The chancellor’s revised opinion and judgment was rendered on December 20, 2001.

¶ 8. Pat and Bob lived together as husband and wife for less than seventeen months. Yet, they have been involved in litigation since August of 1997, more than six years now. The market values used by the chancellor were current as of September of 1999, but were significantly out-of-date as of December 20, 2001, as the financial markets have declined significantly.

¶ 9. On remand, the chancellor sought additional relevant information in the form of a statement regarding the parties’ respective positions on the remanded issues. Bob asked to present such additional information through courtroom testimony and argument. Bob’s counsel asked the court to consider “the drastic worsened financial condition of [Bob] that has transpired between the original Opinion and Judgment of this Court and its revised Opinion and Judgment aforesaid, dated December 5, 2001.” To support this request, Bob cited the liquidation of his financial assets caused by the September 11, 2001 terrorist attack and the significant decline in the stock market. Bob also argued that Pat’s remarriage shortly after the original trial would impact her need and ability to receive alimony. The chancellor denied Bob’s request and rendered the decision based on outdated valuations.

¶ 10. The principle governing this issue is clearly set forth in the leading treatise on chancery practice, which states:

The chancellor should allow whatever amendments are necessary that he may consider the action as the parties are situated on the date of the remand hearing. To hold otherwise would not be equitable.

Billy G. Bridges & James W. Shelson, Griffith Mississippi Chancery Practice § 700 (2000 ed.) (citing McKay v. McKay, 312 So.2d 12 (Miss.1975)). See also Rainer v. Rainer, 393 So.2d 475, 477 (Miss.l981)(ehancellor correctly sustained motion to amend and consider the cause as the parties were situated on the date of the remand hearing).

¶ 11. Because the values of the non-marital assets from which the lump sum alimony award was to be made were ever changing, based on current market valuations and the lengthy intervening time period, it was vital that the chancellor consider evidence of any substantial change in value or any disposition of assets to arrive at a just, fair and proper decision. At a minimum, equity and justice required that the chancellor grant a party an opportunity to present any relevant evidence to establish changed circumstances that may affect a party’s ability to comply with the court’s final order.

¶ 12. The proper procedure on remand was for the chancellor to allow testimony regarding the parties’ changed circumstances. The principles of equity and justice demand it. Because he did not, we are of the opinion that the chancellor failed to properly consider the Cheatham factors in the award of lump sum alimony. Therefore, we reverse and remand the case for further proceedings consistent herewith.

2. Whether the chancellor abused his discretion because there was no substantial evidence warranting lump sum alimony.

¶ 13. In Haney, we reversed and remanded the case for the chancellor to provide “specific findings of fact and conclusions of law on this issue [lump sum alimony] based upon the above mentioned Cheatham factors.” Haney, 788 So.2d at 866 (¶ 11). The specific findings of fact and conclusions of law are necessary so that we, as an appellate court, may complete our task which is to determine whether the chancellor’s consideration of the Cheatham factors was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. In Haney, we reasoned that “[t]he chancellor did not illustrate his analysis of this marriage under the Cheatham factors. Thus, we are left with no guidance by which to review his decision.” Haney, 788 So.2d at 865-66(¶ 11). Deprived of the information necessary to complete our task, we asked the chancellor to explain his decision.

¶ 14. On remand, the chancellor issued a revised opinion and final judgment. In the revised judgment, the chancellor again failed to illustrate, analyze or explain how each Cheatham factor affected his consideration and supported the award of lump sum alimony. Here, the chancellor made only a factual finding on each element. As discussed in detail below, the chancellor wholly failed to explain his reasoning behind the award of alimony. Thus, we are, yet again, left with “no guidance by which to review his [the chancellor’s] decision.” Id. Encountered with the same problem as before, we must again reverse and remand for an appropriate decision with the necessary analysis.

¶ 15. To further support our conclusion and to assist the chancellor on remand, we include the following discussion of the Cheatham factors.

¶ 16. The first Cheatham factor is the “substantial contribution to accumulation of total wealth of the payor, either by quitting a job to become a housewife or assisting in spouse’s business.” Cheat-ham, 587 So.2d at 438. In the revised judgment, the chancellor found that Bob and Pat were married for seventeen months, Pat became sick, and she provided clerical assistance to Bob’s business for three or four months. This is not the typical evidence of a substantial contribution to the total wealth. Indeed, based on the chancellor’s analysis before us, this is a factual finding and is not sufficient to be the basis for an award of alimony.

¶ 17. The second factor is the “length of the marriage.” Id. The chancellor concluded that “[t]he parties were married for approximately 17 months.” Again, this is a factual finding, not an analysis. The chancellor failed to explain how he determined that a marriage of seventeen months is sufficient to award lump sum alimony.

¶ 18. The third factor is the “separate income of the recipient spouse as compared to that of the paying spouse.” Id. The chancellor determined that Pat had a monthly income of $1,801 compared to Bob’s monthly income of $7,539. We discuss this factor below.

¶ 19. The fourth factor is the “financial security of the recipient spouse absent the lump sum payment.” Id. The chancellor determined that Pat had non-marital assets valued at $115,930 and Bob had non-marital assets valued at $703,714. The chancellor also found that the discrepancy in non-marital assets was due to the significant loss incurred in the liquidation of Pat’s printing business, owned and operated independent of Bob, that occurred after they separated.

¶ 20. The chancellor then, without explanation, held “[therefore, based on the Cheatham factors set out above, the Court finds that Bob Haney has sufficient income and ability to pay unto Pat (Robertson) Haney, as lump sum alimony, the sum of $104,974.77.”

¶ 21. The evidence in this case, however, clearly established that throughout their marriage Pat and Bob maintained separate residences and separate businesses. Pat did little to contribute to the accumulation of Bob’s total wealth. Pat’s business decisions caused the drastic reduction in her own wealth and in her income. Bob and Pat maintained separate checking accounts and had separate investments. Their marriage lasted for only seventeen months. Without an analysis from the chancellor to explain or illustrate how he arrived at this decision, the only conclusion that the record supports is that Pat and Bob, although married, lived lives that were financially separate and independent of each other or their marriage.

¶ 22. The chancellor’s opinion seems to base the award of lump sum alimony primarily on Pat’s medical problems. The chancellor noted that Pat had to invade her investments to pay certain medical bills. He also noted that Bob had stopped carrying Pat on his insurance coverage at work. A more appropriate remedy, than lump sum alimony, would have been for the chancellor to order Bob to pay for or maintain Pat’s health insurance, a remedy we suggested in our original opinion. Haney, 788 So.2d at 866 (¶ 11). The chancellor also could have ordered Bob to pay a portion of Pat’s medical expenses.

¶ 23. The third Cheatham factor is the most important. Cheatham, 537 So.2d at 438. However, it is not the only factor. The chancellor must provide this court with an explanation of his analysis of these factors to support the award of lump sum alimony. The chancellor’s revised judgment simply failed to comply with the directive of this Court. Therefore, we reverse and remand for a new hearing for the chancellor to properly consider the Cheatham factors and to render an opinion which contains “specific findings of fact and conclusions of law on this issue [lump sum alimony] based upon the above mentioned Cheatham factors.” Haney, 788 So.2d at 866 (¶ 11).

C. Whether the chancellor erred in awarding attorney’s fees.

¶ 24. Bob argues that no evidence was presented to establish that Pat was unable to pay her own attorney’s fees. The dissent claims that because Bob only addresses this issue with a one sentence statement in his brief, it should not be considered. However, we find this appeal is the continuation or second round of a lengthy domestic case. The issue has been adequately preserved for review on appeal.

¶ 25. Paragraph twelve of this Court’s original opinion stated the law on the award of attorney’s fees. Id. at 866 (¶ 12). “Mississippi maintains a general rule that where a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate.” Id. (citations omitted). Relying on Pat’s estimated monthly income and expenses is not enough. It was readily apparent from her non-marital assets and the award of lump sum alimony that Pat Haney had sufficient financial ability to pay her attorney’s fees. The chancellor’s award of attorney’s fees was an abuse of discretion and was clearly erroneous. Accordingly, we reverse and render the chancellor’s award of attorney’s fees.

¶ 26. THE JUDGMENT OF THE CHANCERY COURT OF UNION COUNTY IS REVERSED AND REMANDED. ON THE ISSUE OF ATTORNEY’S FEES THE JUDGMENT IS REVERSED AND RENDERED. COSTS ARE ASSESSED TO THE AP-PELLEE.

SOUTHWICK, P.J., BRIDGES, IRVING, AND CHANDLER, JJ., CONCUR. MYERS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., AND THOMAS, J. McMILLIN, C.J., AND LEE, J., NOT PARTICIPATING.

MYERS, J.,

dissenting.

¶ 27. I respectfully dissent. This Court has reviewed the facts of this case once before. Haney v. Haney, 788 So.2d 862 (Miss.Ct.App.2001). The case was then reversed and remanded for findings of fact and conclusions of law on two narrow issues. One, the chancellor was instructed to analyze the Cheatham factors and determine if an award of lump sum alimony to Pat Haney was equitable given the four factors. Two, the chancellor was instructed to take into account Pat Haney’s interest in a printing company when making a determination on whether she was entitled to attorney’s fees. Id. at 866. No other issues were placed before the chancellor on remand. Keeping in mind our limited standard of review, I find the chancellor on remand was not manifestly wrong, nor clearly erroneous and applied the correct legal standard. See McNeil v. Hester, 753 So.2d 1057, 1063 (¶ 21) (Miss.2000).

Therefore, I dissent.

I. THE CHANCELLOR DID NOT COMMIT MANIFEST ERROR BY DECLINING TO HEAR ADDITIONAL TESTIMONY OR CONDUCT A HEARING AFTER THE CASE WAS REMANDED BY THE COURT OF APPEALS.

¶ 28. Bob argues that the chancellor committed error by declining to hear additional testimony or conduct a hearing after the case was remanded. The majority agrees and states, “At a minimum, equity and justice required that the chancellor grant a party an opportunity to present any relevant evidence to establish changed circumstances that may affect a party’s ability to comply with the court’s final order.” The majority holds that Bob should have been afforded the opportunity to present testimony on his drastically worsened financial condition since the time of the chancellor’s original opinion and judgment.

¶ 29. I disagree with the majority’s position that Bob should have been afforded that opportunity. We remanded the case on two limited grounds. One, the chancellor was to make specific findings of fact and conclusions of law on the lump sum alimony award to Pat based on the Cheat-ham factors. Two, the chancellor was to consider Pat’s interest in a printing company when determining whether she should be awarded attorney’s fees. We did not order that additional hearings be held or testimony be brought before the chancellor could make his determination according to Cheatham. There was no need for the chancellor to hear additional evidence on remand because the record provided sufficient evidence and testimony concerning the Cheatham factors.

¶ 30. The majority argues that the chancellor did not have enough evidence to make a ruling because he did not have evidence of Bob and Pat’s current financial conditions. I do not agree with the majority’s position that the changed circumstances of Bob and Pat warrant the remand of this ease for a second time. Bob argues, and the majority agrees, that due to the liquidation of his financial assets and Pat’s remarriage, the financial situation of both parties should be re-evaluated. I disagree with his argument and the majority’s opinion that Bob should be allowed to argue changed circumstances to the detriment of Pat and thereby attempt to escape payment of lump sum alimony. It was within the chancellor’s discretion whether or not to hold additional hearings on this matter and there was no need to do so given the superfluous evidence in the record.

II. THE CHANCELLOR DID NOT ABUSE HIS DISCRETION BY AWARDING PAT HANEY LUMP SUM ALIMONY.

¶ 31. The majority states that the chancellor “again failed to illustrate, analyze or explain how each Cheatham factor affected his consideration and supported the award of lump sum alimony.” I disagree with the majority’s position. In Cheatham, the supreme court listed several factors to be considered by the chancellor in determining whether to award lump sum alimony: 1) the substantial contribution to the accumulation of total wealth of the payor either by quitting a job to become a housevufe, or by assisting in the spouse’s business, 2) a long marriage, 3) where the recipient spouse has no separate income or the separate estate is meager by comparison, and 4) without the lump sum award the receiving spouse would lack any financial security. Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988). A closer analysis, however, reveals that-the single most-important factor undoubtedly is the disparity of the separate estates. Id.; Retzer v. Retzer, 578 So.2d 580, 592 (Miss.1990); Tilley v. Tilley, 610 So.2d 348, 352 (Miss.1992).

¶ 32. When we reversed and remanded the present case, the chancellor re-analyzed the facts of the case according to the Cheatham factors previously outlined. I disagree with the majority that we are left with no guidance in which to review the chancellor’s decision. The chancellor’s revised opinion and judgment sets out the Cheatham factors and a brief analysis of the facts that coincide with each factor. Because the chancellor followed our instructions on remand, we are to consider only whether his decision to award lump sum alimony was clearly erroneous or manifestly wrong. McNeil, 753 So.2d at 1063.

¶ 33. While the majority is correct in stating that the chancellor did not go into great detail on each factor, it was within the chancellor’s discretion not to do so. We instructed him to make specific findings of fact and conclusions of law, not a lengthy legal analysis on each point. Tracking the factors in Cheatham, the chancellor found that the couple had been married for approximately 17 months and that Pat quit her job due to illness. After quitting her job, Pat helped Bob with clerical work for his business for three to four months. The chancellor found Pat to have a monthly income of $1,801, most of which came from disability benefits. Bob was found to have a significantly larger monthly income of $7,539. The chancellor found that Pat had reasonable monthly expenses of $3,350 which greatly exceeded her total monthly income. The proof in the present case showed that Pat suffers from a medical disability that limits her ability to earn a living. Pat had been using her savings to meet her monthly expenses.

¶ 34. Given all of these facts, the most important factor is the disparity of Bob and Pat’s estates. Retzer, 578 So.2d at 592. The chancellor found Pat to have non-marital assets of $115, 930 and Bob to have non-marital assets of $703,714. Clearly, there is quite a disparity between the two estates. The chancellor had two opportunities to review the facts and law of this case and he decided both times that Bob should pay Pat $104,974.77 in lump sum alimony. The majority opines that the primary basis of the award is Pat’s medical problems. The chancellor heard testimony that Bob had Pat excluded from his insurance coverage at work without notifying her. We can only speculate as to whether or not this played a part in the chancellor’s decision. We do know, however, that the chancellor made his findings of fact and conclusions of law on lump sum alimony according to Cheatham.

¶ 35. I disagree with the majority that the chancellor abused his discretion in awarding lump sum alimony to Pat. The chancellor had ample evidence before him to make this award given the great disparity between the two estates, Pat’s meager monthly income in comparison to her significant monthly expenses, and Pat’s need for financial security. Likewise, the chancellor followed our narrow instructions on remand and did not abuse his discretion by awarding lump sum alimony to Pat.

III. THE CHANCELLOR DID NOT COMMIT ERROR BY AWARDING ATTORNEY’S FEES.

¶36. I would affirm the chancellor’s award of attorney’s fees to Pat. Bob failed to raise this as an issue in his first appellate brief and again merely mentions the attorney’s fees in the concluding sentence of his second brief. He cites one case to support his position. Bob failed to adequately demonstrate that the chancellor abused his discretion by awarding attorney’s fees to Pat. The majority fails to recognize the great discretion a chancellor has in awarding attorney’s fees in divorce cases. Smith v. Smith, 614 So.2d 394, 398 (Miss.1993) (citing Martin v. Martin, 566 So.2d 704 (Miss.1990); Devereaux v. Dev-ereaux, 493 So.2d 1310 (Miss.1986); Kergosien v. Kergosien, 471 So.2d 1206 (Miss.1985)). Accordingly, I would affirm the chancellor’s award of attorney’s fees.

KING, P.J., AND THOMAS, J., JOIN THIS SEPARATE WRITTEN OPINION.

      . The chancellor noted that Pat's non-marital assets included mutual funds valued at $41,930.01 and Bob’s non-marital assets included equity investments totaling $618,214. As part of the opinion, the chancellor noted that Bob’s asset value included "$221,250.00 of which resulted in growth between the temporary [December 15, 1997] and final [September 29, 1999] hearings.”


author: KING, P. J.,

text:
    Shannon JENKINS a/k/a Slink, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00394-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2003.
    Rehearing Denied Feb. 10, 2004.

      Shannon Jenkins, appellant, pro se.
    Harvey Lee Morrison, Joseph Joshua Stevens, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   KING, P. J.,

for the Court.

¶ 1. Shannon Jenkins was convicted of escape by the Oktibbeha County Circuit Court. Jenkins was sentenced to a term of five years in the custody of the Mississippi Department of Corrections, with this sentence to run consecutively to any prior sentence. Aggrieved, Jenkins has appealed and raised the following issues which we quote verbatim:

I. Whether or not the Indictment stated a cause of action under either Section 97-9-45 or Section 97-9^19.
II. Whether or not the Defendant was put to trial on a void indictment.
III. Whether or not the Defendant, upon conviction, should have been sentenced under Section 97-9-45, Section 97-9-49(1) or Section 97-9-49(2).
IV. Whether or not the court erred in the granting and refusing of certain instructions including the refusal to grant Defendant’s Instructions D-10-A and DALI.
V. Whether the Defendant’s right to a speedy trial was violated.
VI. Whether the Defendant could have been authorized to leave the jail premises by the jail personnel in charge of him on May 16,1999.
VII. Trial court erred in sentencing Appellant to a five year term.
VIII. Appellant was denied his right to a speedy trial.
IX. Appellant was denied his right to be heard as provided by Mississippi Constitution Art. Ill Section 26.

¶ 2. Where these issues are interrelated, they will be combined and addressed as one.

FACTS

¶ 3. On February 4, 1994, Jenkins pled guilty to vehicular manslaughter and was sentenced to a term of ten years in the custody of the Mississippi Department of Corrections. Jenkins’ sentence was suspended and he was placed on probation.

¶ 4. In April 1999, the State sought to revoke Jenkins’ suspended sentence because he had been convicted of DUI and distribution of marijuana while on probation. On April 20, 1999, the trial judge entered an order revoking the suspended sentence.

¶ 5. Following the revocation of his probation, Jenkins was being held in the county jail awaiting transportation to the penitentiary to serve his sentence on the vehicular manslaughter conviction. On May 16, 1999, at 5:00 a.m. roll call, it was discovered that Jenkins was missing from the jail. In April of 2000, Jenkins was located in Texas, where he was taken into custody. In November 2000, he was returned to Oktibbeha County to stand trial on the charge of escape.

¶ 6. On September 17, 2001, Jenkins acting pro se, filed a motion for a speedy trial. However, this motion was not presented to the trial court until the day of trial, February 1, 2002. The trial court ruled that Jenkins’ Sixth Amendment right to a speedy trial had not been violated.

¶ 7. On February 1, 2002, immediately prior to trial, Jenkins’ attorney presented a motion to quash the indictment saying that it failed to allege that Jenkins had been sentenced to the Mississippi Department of Corrections, and that he had used force or violence to escape. The trial court determined that the indictment was sufficient as a matter of law and denied the motion. Upon the denial of that motion, Jenkins’ attorney presented a motion which asked the trial court to determine which specific statute was relied upon as a basis for the indictment. This motion was also denied. Thereafter, the trial of this matter proceeded.

¶ 8. Chief Deputy George Carrithers testified that Jenkins was held in the new Oktibbeha County Jail pending the revocation hearing. He was made a trustee, but only allowed to move within the jail itself. Carrithers testified that in March 1999, Jenkins, at the request of his stepfather, was moved from the new jail and housed in the old jail across the street. Carrithers indicated that trustees housed in the old jail were allowed greater freedom of movement than those trustees housed in the new jail. However, they were not allowed to leave the premises except for special purposes and then only when accompanied by a deputy for a “special detail.” According to Carrithers, he explained these restrictions to Jenkins.

¶ 9. Jenkins testified that he was not supervised, was free to come and go as he pleased, and was only required to tell someone if he was going after dark. Jenkins indicated that on May 16, 1999, he informed the dispatcher that he was going to the store to get himself a Coke. Jenkins testified that after getting the Coke, he did not return to the jail, but kept going.

If any person sentenced to the Mississippi Department of Corrections for any term shall escape or attempt to escape from his particular unit or camp of confinement or the boundaries of the penitentiary as a whole, or shall escape or attempt to escape from custody before confinement therein, he shall, upon conviction, be punished by imprisonment in such prison for a term not exceeding five (5) years, to commence from and after the expiration of the original term of his imprisonment as extended in consequence of such escape or attempted escape.
Any convict who is entrusted to leave- the boundaries of confinement by authorities of the Mississippi Department of Corrections or by the governor, and who wilfully fails to return within the stipulated time, or after the accomplishment of the purpose for which he was entrusted to leave, shall be considered an escapee and subject to prosecution under this section.

¶ 10. After a trial on February 1st and 4th, 2002, Jenkins was convicted of escape and sentenced to five years in the custody of the Mississippi Department of Corrections pursuant to Mississippi Code Annotated Section 97-9-45.

ISSUES AND ANALYSIS

I.

Was the indictment defective?

¶ 11. Jenkins contends that the trial court erred in allowing him to stand trial on an indictment which was void for failure to reference the specific statute upon which it was brought. Jenkins claims that either Mississippi Code Annotated Section 97-9-45 (Rev.2000) or 97-9-49 (Rev. 2000) could have applicability to the facts in this matter.

¶ 12. Uniform Circuit and County Court Rule 7.06 sets forth the requirements of an effective indictment. It provides:

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. An indictment shall also include the following:
1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”
The court on motion of the defendant may strike from the indictment any sur-plusage, including unnecessary allegations or aliases.

¶ 13. Uniform Circuit and County Court Rule 7.06 does not mandate that the indictment reference a particular section of the Mississippi Code. It does require that the defendant be informed of the nature of the charge and of the facts upon which it is based. The indictment stated:

THE GRAND JURORS of the State of Mississippi, taken from the body of the good and lawful men and women of said County, duly elected, empanelled, sworn and charged, at the Term aforesaid of the Court aforesaid, to inquire in and for the body of the County aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths, present: that
SHANNON JENKINS alias SLINK
late of the County aforesaid, on or about the 16th day of May 1999, in the County aforesaid, did unlawfully, wilfully, and feloniously, escape from the custody of the Oktibbeha County Jail wherein he had been confined by virtue of a conviction for the crime of Vehicular Manslaughter; a felony, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Mississippi;

¶ 14. The indictment charged that Jenkins (1) unlawfully, wilfully and feloniously escaped from the custody of the Oktibbeha County Jail (2) where he had been confined by virtue of a conviction for the felony of vehicular manslaughter.

¶ 15. Under Mississippi Code Annotated Section 97-9-45, the State was required to prove: (1) that Jenkins was sentenced to the Mississippi Department of Corrections for any term; (2) that Jenkins escaped or attempted to escape from his particular unit or camp of confinement or the boundaries of the penitentiary; or (3) that Jenkins escaped or attempted to escape before confinement.

¶ 16. The State offered proof that (1) Jenkins had been convicted of vehicular homicide and sentenced to the custody of the Mississippi Department of Corrections, (2)pending transportation to Parchman, he was housed at the Oktibbeha County Jail, and (3) that he escaped from the jail.

¶ 17. Jenkins was adequately informed by the indictment of the nature of the charge against him and the supporting facts.

¶ 18. We find this issue to be without merit.

II.

Whether Defendant’s Instructions D-10-A and D-ll were improperly refused.

¶ 19. Jenkins contends that the trial court erred by granting jury instructions C-30 and D-3 and refusing his D-10-A and D-ll jury instructions. D-3 was an instruction requested by Jenkins. A trial court will not normally be found in error for having given a defendant his requested instruction. Brown v. State, 768 So.2d 312(¶ 9) (Miss.Ct.App.1999).

¶20. A defendant is entitled to instructions which fairly state the law, are supported by the evidence and are not unnecessarily duplicative. Id.

¶ 21. Instructions D-10-A and D-11 were overly broad, and not fully supported by the evidence. However, those portions of D-10-A and D-ll which were correct statements of law and supported by the evidence were placed before the jury in instructions C-30 and D-3.

¶22. Accordingly, this Court finds no merit in this issue.

III.

Was Jenkins denied a speedy trial?

¶ 23. Jenkins alleges a violation of both his statutory and constitutional rights to a speedy trial. For constitutional purposes, the right to a speedy trial attaches at arrest. Scott v. State, 829 So.2d 688(¶ 6) (Miss.Ct.App.2002). Under Mississippi statutory law, absent good cause, a defendant is to be brought to trial 270 days from the date of arraignment. Id.

¶ 24. Claims of speedy trial violations are considered within the context of Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Barker factors are: length of the delay, reason for the delay, defendant’s timely assertion of his right to a speedy trial, and resulting prejudice to the defendant.

¶25. The trial court conducted a thorough analysis of Jenkins’ speedy trial issues. In overruling Jenkins’ motion to dismiss for lack of speedy trial, the trial court stated:

The Defendant escaped from custody and fled the jurisdiction of this Court on or about May 16,1999. He was apprehended in Texas approximately one year later on a possession of marijuana charge for which he received a six-month sentence. The State of Mississippi began extradition paperwork in May 2000, and the Defendant was returned to this Court’s jurisdiction in November 2000. The Defendant was charged with the crime of escape and served a copy of his indictment on January 30, 2001. He was arraigned on February 2, 2001, and his case was set for trial April 26, 2001. On April 25, 2001, the Defendant’s attorney obtained a continuance of the trial date to July 25, 2001 so that he could have more time to investigate. On July 23, 2001, the Defense attorney had the trial date continued to a later date in the same term, July 31, 2001, that trial date was then continued by the Defendant to later in the same term to August 2, 2001. Then on August 1, 2001, the trial date was continued by the Defendant to October 31, 2001 due to the listed reason of “further negotiation.” The Defendant filed his pro se Motion for Speedy Trial on September 17, 2001. The Court on October 29, 2001 started a complex product liability suit involving a multinational car manufacturer (Velma Ruth Seavy v. Mazda); this case took a total of two weeks, and the Oktibbeha term had to be extended an extra week to finish the case. The case ended Friday, and the next Monday the Court went straight to a four-week term of court in Lowndes County. Due to these circumstances, the case was forced to be continued until the next regular Oktibbeha term on February 1, 2002 on which date it did actually go to trial. A concise timeline of these events follows:
Pled guilty to vehicular manslaughter 02/04/1994
Sentenced to ten years suspended, five years supervised probation 04/18/1994 Sentence revoked, sentenced to ten years to serve 04/20/1999
Escaped from custody 05/16/1999
Indicted on escape charge 07/22/1999
Arrested in Texas, six months to serve 04/23/2000
Transported back to Mississippi 11/15/2000
Served with indictment 01/30/2001
Arraigned 02/02/2001
Set for trial 04/25/2001
Defense continuance 04/25/2001
Trial Reset for 07/25/2001
Defense continuance 07/23/2001
Trial Reset for 07/31/2001
Defense continuance 07/30/2001
Trial Reset for 08/02/2001
Defense continuance 08/01/2001
Trial Reset for 10/31/2001
Motion for Speedy Trial filed 09/17/2001
Continuance due to Civil Trial 11/06/2001
Trial Reset for 02/01/2002

¶ 26. The trial judge found that 991 days elapsed between Jenkins’ escape from the Oktibbeha County Jail and his being brought to trial for the offense of escape. Of that 991 days, the trial court determined that 899 days of delay were attributable to Jenkins, the remaining 92 days were attributable to the court’s participation in a prior trial setting.

¶ 27. The trial court also determined that Jenkins had asserted his right to a speedy trial by filing his pro se motion for a speedy trial on September 17, 2001. It therefore weighed that factor in Jenkins’ favor. The court determined that the factor of resulting prejudice to Jenkins was ultimately dispositive in that Jenkins suffered no prejudice as a.result of this delay. At the time of his .escape, Jenkins was incarcerated and serving a sentence for vehicular manslaughter.

¶ 28. Based on these findings, the trial court appropriately overruled the motion to dismiss for lack of a speedy trial.

IV.

Was Jenkins’ right to be heard pursuant to Mississippi Constitution Art. Ill, Section 26 denied?

¶ 29. Jenkins alleges that the trial court deprived him of his right to be heard pursuant to the Mississippi Constitution Article 3, Section 26 at the hearing on the motion for a new trial. This section of the Mississippi Constitution provides that an accused shall have a right to be heard by himself or counsel, or both in a criminal prosecution. He asserts that he should have been present and a part of the hearing because there were issues that he wanted to present such as the speedy trial matter and perjury involving the testimony of the sheriff and deputy sheriff. Jenkins was present and represented by counsel who presented the motion to the trial court.

¶ 30. The record does not indicate any expression by Jenkins of a desire to testify or make additional comments to the trial court. The court addressed Jenkins immediately before the close of the hearing and advised him of his right to appeal. When the court addressed him, he gave no indication of any desire to say or add anything to the hearing.

¶ 31. An appellate court may only review those matters properly preserved for appeal during trial. Sanchez v. State, 792 So.2d 286(¶ 18) (Miss.Ct.App.2001). The record does not reflect that this was done. Under traditional appellate procedure, any error not first brought to the attention of the trial court is not preserved for appeal and is thereby waived. Bishop v. State, 771 So.2d 397(¶ 14) (Miss.Ct.App.2000).

¶ 32; THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT OF CONVICTION OF FELONY ESCAPE AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TO RUN CONSECUTIVELY TO ANY OTHER SENTENCES IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Mississippi Code Annotated Section 97-9-45 (Rev.2000) provides: Escapees; penalties and forfeiture of parole time.

      . Mississippi Code Annotated Section 97-9-49 (Rev.2000) provides: Escape of prisoners or persons under arrest or custody; penalties; wilful failure to return to jail by person entrusted to leave.
      (1) Whoever escapes or attempts by force or violence to escape from any jail in which he is confined, or from any custody under or by virtue of any process issued under the laws of the state of Mississippi by any court or judge, or from the custody of a sheriff or other peace officer pursuant to lawful arrest, shall, upon conviction, if the confinement or custody is by virtue of an arrest on a charge of felony, or conviction of a felony, be punished by imprisonment in the penitentiary not exceeding five (5) years to commence at the expiration of his former sentence, or, if the confinement or custody is by virtue of an arrest of or charge for or conviction of a misdemeanor, be punished by imprisonment in the county jail not exceeding one (1) year to commence at the expiration of the sentence which the court has imposed or which may be imposed for the crime for which he is charged.
      (2) Anyone confined in any jail who is entrusted by any authorized person to leave the jail for any purpose and who wilfully fails to return to the jail within the stipulated time, or after the accomplishment of the purpose for which he was entrusted to leave, shall be considered an escapee and may be punished by the addition of not exceeding six (6) months to his original sentence.

      .Instruction C-30: The Court instructs the jury that Shannon Jenkins has been charged with the offense of escape from custody.
      If you find from the evidence in this case beyond a reasonable doubt that Shannon Jenkins, on or about May 16, 1999 in Oktibbeha County escaped from the Oktibbeha County Jail by leaving the premises without permission, then you shall find the Defendant guilty of escape. The form of your verdict shall be: "We, the Jury, find the Defendant, Shannon Jenkins, guilty of the crime of escape”
      If, however, you find from the evidence presented in this case, beyond a reasonable doubt, that Shannon Jenkins, on or about May 16, 1999 in Oktibbeha County, had authorization to leave the Oktibbeha County Jail premises up until 10 o'clock p.m., and in fact, did so leave said jail premises and failed to return, then you shall find him guilty of escape by breach of entrustment. The form of your verdict shall be:
      "We, the Juiy, find the Defendant, Shannon Jenkins, guilty of the crime of escape by breach of entrustment.”
      If, however, you find from the evidence presented that the prosecution has failed to prove any one or more elements of the crimes of escape or escape by breach of entrustment, beyond a reasonable doubt, then you shall find Shannon Jenkins not guilty. The form of your verdict shall be:
      "We, the Jury, find the Defendant, Shannon Jenkins, not guilty.”

      . Instruction D-3: The Court instructs the Jury that if you believe that Shannon Jenkins left the Oktibbeha County Jail premises on or about May 16, 1999 without resorting to force and violence and that on said date and occasion he had been designated as a trustee and had authorization to leave the jail premises during May 16, 1999 up until 10 o'clock P.M. and in fact did so leave said jail premises and failed to return, then you shall find him guilty of escape by breach of entrustment.

      . Instruction D-10-A: The Court instructs the Jury that permission or authorization by officers for Defendant Shannon Jenkins to leave the Oktibbeha County Jail premises may be inferred from a course of conduct or by standard operating procedure in effect on May 16, 1999. In addition, any deputy sheriff, jailer or other employee of the sheriff's department supervising the prisoners had authority to grant permission or authorization to Shannon Jenkins to go off the jail premises prior to 10 o'clock p.m. on May 16, 1999.

      . Instruction D-ll: The Court instructs the jury that a Jailer, Deputy Sheriff, or Dispatcher, charged by the Sheriff with the responsibility of handling jail inmates, had the authority to authorize Shannon Jenkins to go off the jail premises prior to 10 o'clock p.m. on May 16, 1999.


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

text:
    William SANDERSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01626-COA.
    Court of Appeals of Mississippi.
    Jan. 20, 2004.
    Rehearing Denied May 18, 2004.

      Patsy Ann Bush, Hazlehurst, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   SOUTHWICK, P. J.,

for the Court.

¶ 1. William Sanderson was found guilty of aggravated assault and conspiracy to commit aggravated assault. He appeals arguing his indictment was fatally defective and that the verdict of the jury was against the overwhelming weight of the evidence. We find one error only. The charge of conspiracy was fatally defective. We reverse and order Sanderson discharged from the indictment for conspiracy, but affirm his conviction and sentence for aggravated assault.

STATEMENT OF FACTS

¶ 2. In December 2001, Peggy Lott was murdered. There were strong suspicions that Mrs. Lott’s sixteen year old daughter Jamie had committed the crime, likely as a result of anger over her mother’s efforts to prevent her from seeing and having sexual relations with Gary Mullins. The Lott girl was pregnant and the family believed that Mullins was the father. On the night of Mrs. Lott’s funeral, several family members went to a gravel pit that was a known point of rendezvous for Jamie and Mullins. Among the group was the defendant, William Sanderson, Jamie’s half-brother and a son of the murdered Mrs. Lott. There was testimony that at least some in this group had gone to the gravel pit wanting to impress upon Mullins an understanding of his obligations towards the baby that Jamie Lott was carrying. There was also testimony that some wanted to beat Mullins.

¶3. Someone in the group telephoned Mullins. Being informed that Jamie Lott wanted to see him at the gravel pit — she actually was not with the group — Mullins agreed to go there. Once he arrived, there was an altercation. Others were involved, but for purposes of this case, it is important that there was evidence that Sanderson approached Mullins, tried to hit him, and missed. Sanderson claimed that Mullins then stabbed him several times, causing him to fall to the ground. Sander-son then claims that he saw Mullins going after another person, so he pulled Mullins down on top of him. Sanderson then got up from the ground and asked one of the others to take him to the hospital. Sand-erson stated that he did not stab Mullins. He also claims that he never conspired with anyone else to stab Mullins. He stated that at most, they discussed giving Mullins a physical beating.

¶ 4. Joseph Taylor was one of the other men involved in the fight. He testified that Sanderson wanted to speak to Mullins to make sure he was going to take care of Jamie and her child. Taylor told a police officer that he had stabbed Mullins. He later recanted and that Sanderson had asked him to take the blame until Sander-son was released from the hospital and could leave town.

¶ 5. Mullins testified that as soon as he got out of his car at the gravel pit, Sander-son stabbed him. He claims he was stabbed in the chest but was able to remove the knife himself. He and Sander-son began fighting over the knife, and he stabbed Sanderson a few times in the struggle. Mullins then ran into the woods to seek help at a house nearby. Mullins was later taken to the hospital where he underwent surgery to repair cuts to his lung and liver.

¶ 6. After a jury trial, Sanderson was found guilty of aggravated assault and conspiracy to commit aggravated assault. From this, he appeals.

DISCUSSION

1. The indictment

¶ 7. Sanderson claims that Count I of his indictment was fatally flawed. The existence of defects in indictments is a question of law. Peterson v. State, 671 So.2d 647, 652 (Miss.1996). An indictment must set forth all the elements of the criminal offense. Id. at 653.

¶ 8. Sanderson challenges the validity of both counts in the indictment. We examine the charge on aggravated assault first, and begin our review with the statute defining the crime.

(2) A person is guilty of aggravated assault if he
(a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life....
(b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm....

Miss.Code Ann. § 97-3-7(2) (Rev.2000). The indictment stated:

Sanderson ... did wilfully, unlawfully, feloniously and purposely cause bodily injury to another, namely, one Gary Mullins, a human being, with a deadly weapon, to wit: a knife, by then and there stabbing the said Gary Mullins ....

Sanderson claims that this indictment is flawed because it did not charge that he had caused serious bodily injury or that his actions were likely to produce death or serious bodily injury.

¶ 9. Sanderson argues that the word “serious” is an element of aggravated assault and it is essential that it be included in an indictment, citing Hawthorne v. State, 751 So.2d 1090, 1094 (Miss.Ct.App.1999). However, the Hawthorne prosecution was brought under subsection 97-3-7(2)(a), which requires either serious bodily injury or alternatively a non-serious injury that was inflicted “purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” That was not the charge against Sanderson. He was charged under subsection (2)(b) for causing bodily injury with a deadly weapon.

¶ 10. The crime of aggravated assault can be committed in more than one manner. The indictment here properly charged one of the means in which to commit the crime. The failure of the indictment to charge other means was appropriate. The cases that Sanderson cites are therefore irrelevant.

¶ 11. Sanderson also claims that the conspiracy count was not properly written because no victim of the conspiracy was named in the indictment:

COUNT TWO, and that on or about 22nd day of December, 2001, in Copiah County, ... WILLIAM SANDERSON AND JOSEPH D. TAYLOR did wilfully, unlawfully, feloniously and knowingly conspire and agree, each with the other, to wilfully unlawfully, feloniously and knowingly commit the crime of Aggravated Assault, contrary to and in violation of Sections 97-1-1 and 97-8-7 of the Mississippi Code of 1972....

¶ 12. The question becomes whether having a specific person as the intended victim of a conspiracy is necessary. There is one precedent cited to us in which a victim was named for the conspiracy. Farris v. State, 764 So.2d 411, 421 (Miss.2000). That such language was used in a particular indictment does not mean that it is required. We now must decide that issue.

¶ 13. A conspiracy is “a combination of two or more persons to accomplish an unlawful purpose.” Brown v. State, 796 So.2d 223, 225 (Miss.2001). The State charged that Sanderson conspired with Taylor to commit an aggravated assault. The evidence showed that the two had a victim in mind, but the indictment did not name Mullins. He was named in Count I, but no one was named in Count II. A count of an indictment needs to be free-standing. Any implication that the victim intended in Count II must have been the same person as was actually named in Count I would not substitute for an obligation to name a victim of a conspiracy if such an obligation exists.

¶ 14. The State argues that the crime of conspiracy to commit aggravated assault is complete as soon as there is an agreement; no acts beyond the agreemént are needed. From that, the State argues that no victim is needed nor must one be identified. That is partially true but not in the manner argued by the State. It is possible that two people could agree to assault the next person they see, or the next person of a certain race, or anyone whom they encounter who is a convenient target. Such a conspiracy might be based on a sick thrill of the act, or simply on seeking targets of opportunity. Yet even then, there is a planned victim but just no name to attach to the person.

¶ 15. We need not consider whether such an indictment would adequately charge a crime. Our question is one step removed. If the planning had not even identified a victim of a generic sort, then has the conspiracy yet been formed sufficiently to constitute a crime? To reiterate, we examine the issue in this way because the indictment itself charged the crime in that way.

¶ 16. A conspiracy occurs as soon as there is an agreement, but there must be a definite enough agreement that, if nothing else, a meeting of the minds has occurred on what the conspirators are going to do. What in essence the State has argued is that a conspiracy to assault is committed when two people decide that someday, somewhere they will assault someone. That is not a plan; that is a desire. A crime is committed when two or more persons conspire to “commit a crime.” Miss.Code Ann. § 97-1-1 (Rev. 2000). “By its very nature conspiracy is a joint or group offense requiring a concert of free will. The union of the minds of at least two persons is a prerequisite to the commission of the offense.... ” Flanagan v. State, 605 So.2d 753, 757 (Miss.1992) (quoting Moore v. State, 290 So.2d 603, 604 (Miss.1974)). Only when contemplation is reduced to agreement is there a conspiracy. If the conspiracy is stopped even before any overt acts towards the crime occur, then the State’s requirement to prove the agreement is an extra challenging one.

¶ 17. Difficulties can arise in defining the agreement even when a crime is committed. In one appeal, the Supreme Court reversed a conspiracy conviction because of the lack of evidence that the agreement went beyond assaulting the particular victim. All the conspirators had been convicted of murder because one of their number returned after the initial assault and killed the victim. Franklin v. State, 676 So.2d 287, 288 (Miss.1996). The evidence did not support that those who were not directly involved in the murder had agreed to its commission. Conspiracy requires “recognition on the part of the conspirators that they are entering into a common plan and knowingly intend to further its common purpose.” Peoples v. State, 501 So.2d 424, 428 (Miss.1987).

¶ 18. These principles, as applied to the indictment against Sanderson, raise questions as to whether an agreement to commit a generic assault at an unknown time and place can be seen as a sufficient common purpose and meeting of the minds. One measure of whether a “union of the minds” exists for a conspiracy to commit a crime that was not committed, is to examine the question of whether a description of the crime in the indictment is definite enough for double jeopardy purposes. If not enough can be determined about the crime to prevent the same crime from being charged in a later indictment, then there is not sufficient definiteness.

If each charging instrument sets forth all of the elements of [the] offense charged, a court can determine by reference to those pleadings whether each crime charged contains an element not found in the other and therefore constitutes a separate offense for double jeopardy purposes.

4 Wayne R. LaFave, Jerold H. Israel, & NaNCY J. King, Crim. Proc § 19.2(b) (2003).

¶ 19. This indictment only charged that on a certain date, Sanderson and Taylor conspired to commit an aggravated assault. There is no anchor to that conspiracy that would keep it from then being used in a later indictment. The date is not enough, as more than one conspiracy may logically be entered into on one day. If there was evidence that the same two people formed a conspiracy on the same day for an aggravated assault, but wished to commit it against someone other than Mullins, then the defect in the victimless indictment is immediately clear. It could not have been known under the victimless indictment whether it was the other conspiracy that the State intended to prove. Similarly, even without any evidence that multiple conspiracies were entered into “on or about” December 22, 2001, which covers more than one day, the defect still exists.

¶ 20. The dissent notes that a uniform court rule’s enumerated list of items for inclusion in the indictment does not refer to the name of the victim. URCCC 7.06. Yet the dissent has also noted that the indictment must contain “a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation”; the indictment then “shall also include” the items in the list. Id. Indeed, “an indictment must state the name of the victim of an offense where that is an element of the offense.... ” Burks v. State, 770 So.2d 960, 963 (Miss.2000), quoting Hughes v. State, 207 Miss. 594, 603, 42 So.2d 805, 807 (1949). Though what it means for the victim’s name to be an element of the offense is not stated, we hold that in an assault case, the victim must be identified in some manner as an essential fact describing the crime.

¶ 21. The dissent in the alternative incorporates into the second count the name of the victim that is found in the first count of the indictment. In one case, an indictment was upheld in which there was an explicit incorporation in one count of the facts alleged in an earlier count. For example, one count provided that the “conduct described herein also constitutes the crime of Conspiracy,” and then the elements of that offense were stated. Farris v. State, 764 So.2d 411, 421 (Miss.2000). The problem in our indictment is that there was no language or attempt to incorporate. Technical words or formal rules are not needed, but something must inform the defendant that one count is being incorporated into another. Each count, which by definition is a separate charge, must in some manner comply with Rule 7.06 by giving “the essential facts constituting the offense charged,” else the defendant is not on notice nor can jeopardy properly operate.

¶ 22. The conspiracy count of the indictment is fatally defective. No crime was charged. Sanderson’s conviction of conspiracy and his sentence of five years, which was to run concurrently with his twelve year sentence for the assault, are reversed.

2. Weight of evidence

¶ 23. Sanderson claims that the trial court erred when it denied his motion for a new trial. A new trial will not be ordered unless allowing the verdict to stand would constitute an “unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). The jury’s verdict is given great deference. Burrell v. State, 613 So.2d 1186, 1191 (Miss.1993). Since we find that the conspiracy was not validly charged and have reversed as to it, we consider only the evidence on the assault.

¶ 24. Here, the jury heard testimony from Mullins and Sanderson relating to the aggravated assault. The jury must have determined that Mullins’ account of the stabbing was correct. Allowing this verdict to stand does not create an “unconscionable injustice.”

¶ 25. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. THE JUDGMENT OF CONVICTION ON THE COUNT OF CONSPIRACY AND SENTENCE OF FIVE YEARS IS REVERSED AND THAT CHARGE IS RENDERED. ALL COSTS ARE ASSESSED TO COPIAH COUNTY.

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

LEE, J,

concurring in part, dissenting in part.

¶ 26. While I concur with the majority’s finding that Count I of aggravated assault in Sanderson’s indictment was not faulty, I disagree with the majority’s finding of a fatal flaw in Count II of Sanderson’s indictment, which count concerned conspiracy. The existence of defects in an indictment is a question of law which we review de novo under a broad standard of review. Manuel v. State, 813 So.2d 762(¶ 3) (Miss.Ct.App.2002).

¶ 27. Uniform Circuit and County Court Rule 7.06 sets forth explicitly what an indictment shall contain:

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. An indictment shall also include the following:
1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”
The court on motion of the defendant may strike from the indictment any sur-plusage, including unnecessary allegations or aliases.

URCCC 7.06. Nowhere in this rule is there a requirement that the name of the victim be included, as the majority holds. Rather, the indictment shall simply fully notify the defendant of the nature and cause of the accusation.

¶ 28. Sanderson’s indictment states:

The Grand Jurors of the State of Mississippi ... upon their oaths present that WILLIAM SANDERSON AND JOSEPH D. TAYLOR, late of county aforesaid, on or about the 22nd day of December, 2001, in COPIAH County, Mississippi, and within the jurisdiction of this court, did wilfully, unlawfully, feloniously and purposely cause bodily injury to another, namely, one Gary Mullins, a human being, with a deadly weapon, to-wit: a knife, by then and there stabbing the said Gary Mullins, contrary to and in violation of Section 97-3-7 of the Mississippi Code of 1972, and against the peace and dignity of the State of Mississippi, this being count one of the indictment;
COUNT TWO
and that on or about the 22nd day of December, 2001, in Copiah County, Mississippi, and within the jurisdiction of this court, the said WILLIAM SAND-ERSON AND JOSEPH D. TAYLOR did wilfully, unlawfully, feloniously and knowingly conspire and agree, each with the other, to wilfully, unlawfully, felo-niously and knowingly commit the crime of Aggravated Assault, contrary to and in violation of Sections 97-1-1 and 97-3-7 of the Mississippi Code of 1972, and against the peace and dignity of the State of Mississippi.

¶ 29. The majority questions whether or not the wording in Count II is insufficient because it fails to name a specific person as the intended victim of the conspiracy, thus failing to apprize Sanderson of the charge. In Farris v. State, 764 So.2d 411(¶ 28) (Miss.2000), the supreme court stated, “So long as a fair reading of the indictment, taken as a whole, clearly describes the nature and cause of the charge against the accused, the indictment is legally sufficient.” I disagree with the majority's argument that each count of the indictment, standing alone, must be sufficient. The Farris rule states that the indictment is to be read as a whole to determine whether the accused understands the nature of the charges against him. Here, simply because Gary Mullins’s name was not repeated in Count II does not mean that Sanderson was not clearly aware that Mullins was the victim of the conspiracy, as Count I clearly indicated that the aggravated assault was directed towards Mullins and no one else.

¶ 30. The majority further claims that an indictment needs to be “free-standing,” and we are not permitted to imply that the victim intended in Count II was the same victim named in Count I. However, in accordance with Uniform Circuit and County Court Rule 7.06 and the rule cited from Farris concerning reading the indictment as a whole, I believe Sanderson was fully informed. Perhaps some confusion would lie were another victim named in Count I in addition to Mullins; however, this was not the case.

¶ 31. While I recognize that it is not necessary for the defendant to challenge a fatally flawed indictment, nevertheless, Sanderson apparently had no difficulty understanding the basis for the conspiracy charge as he failed to object, and the State presented no surprises or other unknown victims during the trial. Again, the indictment as a whole fully apprized Sanderson of the crimes with which he was charged, and in accordance with the authority cited herein and pursuant to our broad standard of review, I would affirm the trial judge’s findings in toto.

BRIDGES AND MYERS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.