author: McMILLIN, C.J.,

text:
    Clifford Kelly HOWE, Individually, Julie Newsome Howe, Individually, and Clifford Kelly Howe and Julie Newsome Howe on Behalf of Their Minor Child, Heather Autumn Howe, Appellants, v. Dr. Maribeth ANDERECK, Appellee.
    No. 2002-CA-01272-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.
    Rehearing Denied June 22, 2004.
    Certiorari Denied Sept. 16, 2004.

      J.B. Van Slyke, Hattiesburg, attorney for appellants.
    Stephen J. Carmody, Jackson, attorney for appellee.
    Before McMILLIN,- C.J., IRVING and MYERS, JJ. ’
   McMILLIN, C.J.,

for the Court.

¶ 1. On June 25, 2002, the Circuit Court of Forrest County granted Dr. Maribeth Andereck’s Rule 12(b)(6) motion to dismiss the complaint filed by Clifford Kelly Howe and Julie Newsome Howe. The Howes bring this appeal claiming that the circuit court was in error for dismissing their complaint based on their failure to present facts sufficient to overcome the immunity provided by Miss.Code Ann. § 43-21-355 (Rev.2000) for reporting suspected child abuse. The Howes additionally contend, in the event, that this Court orders the case to be reversed and remanded, that they should be allowed to revive their claim against Sacred Heart Catholic School’s Board of Education. Finding that the circuit court did not err in granting the order of dismissal, we affirm, and as a result, the province of this Court does not extend to making a determination as to the Howes’ alternative contention.

I.

Facts

¶2. Heather Autumn Howe, a minor child of Clifford Kelly Howe and Julie Newsome Howe, was a student of Sacred Heart Catholic School during the 2000-2001 school year. The acting principal of Sacred Heart, which is a parochial school operated by Sacred Heart Parish and the Catholic Diocese of Biloxi, was Dr. Mari-beth Andereck.

¶ 3. In March of 2001, after investigating reports of abnormal behavior by Heather, Dr. Andereck determined that she had reasonable cause to believe that Heather may have been the subject of abuse. Dr. Andereck then contacted the Forrest County Department of Human Services (DHS), as required by Section 43-21-353 of the Mississippi Code, to disclose her findings, and the DHS subsequently initiated an investigation.

¶ 4. An investigation by the DHS ensued. After learning of the investigation, the Howes filed a complaint in October of that same year to recover damages for defamation, libel, slander, false light, and intentional infliction of emotional distress against Dr. Andereck and the Board of Education of Sacred Heart Catholic School. Dr. Andereck and the Board of Education filed a motion to dismiss pursuant to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure arguing that the Howes’ complaint was without merit in that the mandatory reporting requirement of Miss.Code Ann. § 43-21-353 was provided immunity under Miss.Code Ann. § 43-21-355. Dr. Andereck and the Board of Education also argued, in the alternative, that the complaint should be dismissed because all necessary parties were not included in the lawsuit.

¶ 5. The following January, the Howes amended their complaint, dismissing the Board of Education as a named defendant; however, they continued with their claim against Dr. Andereck. The Howes, though, did not conduct any written discovery or take any depositions within the ninety-day discovery period, so on Dr. An-dereck’s motion, the court entered an order dismissing all claims against Dr. An-dereck with prejudice under Rule 12(b)(6). The Howes filed a motion for reconsideration, and in March, the circuit court held a hearing on that motion. As a result, the court entered an order in May granting the Howes eleven additional days to conduct limited discovery in order to gather information to amend^ their complaint to state with specificity the actions of Dr. Andereck that they claim bring her conduct as school administrator outside the immunity granted by Miss.Code Ann. § 43-21-355.

¶ 6. The Howes filed an amended complaint, but the court again ruled that they had failed to allege a factual scenario that would overcome the immunity granted by Mississippi’s child abuse reporting statute. On Dr. Andereck’s renewed motion to dismiss, the circuit court entered an order dismissing with prejudice the Howes’ claims. Aggrieved by the judgment, the Howes have perfected this appeal.

II.

Discussion

A.

Issue and Standard of Review

¶ 7. The issue before the Court is whether the Howes have stated a claim upon which relief may be granted. A Mississippi Rule of Civil Procedure 12(b)(6) motion to dismiss raises a question of law, from which this Court conducts a de novo review. Duncan ex rel. Duncan v. Chamblee, 757 So.2d 946, 948(¶ 10) (Miss.1999). Upon considering such a motion, we must accept as true the allegations in the complaint and refrain from granting the motion unless the Howes appear beyond doubt incapable of proving any set of facts to support their claim. Id. at (¶ 11). More particularly, in this case we must decide whether the allegations advanced by the Howes in their complaint are such as to create a justiciable issue as to whether they have overcome the immunity conferred upon Dr. Andereck, pursuant to Section 43-21-355, for reporting her belief that the Howes’ daughter may have been the subject of abuse.

B.

Mandatory Reporting of Child Abuse

¶ 8. Mississippi’s child abuse reporting statute is codified in Section 43-21-353 of the Mississippi Code and states, in pertinent part, that a “public or private school employee or any other person having reasonable cause to suspect that a child is a neglected child or an abused child, shall cause an oral report to be made immediately ... to the Department of Human Services.... ” Miss.Code Ann. § 43-21-353(1) (Rev.2000) (emphasis added). The language of the statute unequivocally commands reporting to be a mandatory duty.

¶ 9. The enactment of this mandatory reporting legislation was for the single purpose of advancing the State’s fundamental objective of eliminating child abuse and neglect. Reinforcing this mandate, the legislature also codified two other devices to encourage reporting of suspected abuse. The first is a sanction for failing to report and is. codified in Section 43-21-353(7), which states that “[a]nyone who willfully violates any provision of [Section 43-21-353] shall be, upon being found guilty, punished by a fine ... or by imprisonment....” Miss.Code Ann. §43-21-353(7) (Rev.2000). The second device is a grant,of immunity and is codified in Section 43-21-355, stating that “[a]ny person ... reporting in good faith shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed.” Miss.Code Ann. § 43-21-355 (Rev.2000).

C.

Good Faith Immunity

¶ 10. The duty to report suspected child abuse attaches to an individual the moment they are presented with a situation producing “reasonable cause” for such suspicion. Hence, the standard for reporting is possessing suspicion of child abuse that is founded upon reasonable cause. Persons having reasonable cause must report their suspicion, and if reported in good faith, they are immune from civil liability for doing so'. Immunity, therefore, is conditioned upon the report being made in good faith.

¶ 11. The good faith qualification was presumptively extended to Dr. Ander-eck’s reporting because a “nonpublic school employee,” such as Dr. Andereck, “or any other person participating in the making of a required report pursuant to Section 43-21-353 ... shall be presumed to be acting in good faith.” Miss.Code Ann. § 43-21-355 (Rev.2000). It is the functional effect of this presumption that is at the heart of this case. In her brief, Dr. Andereck maintains -that the statutory presumption of good faith can only be interpreted as shielding mandatory reporters, such as herself, with absolute, immunity. Conversely, the Howes argue that mandatory reporters are extended nothing more than a limited immunity.

¶ 12. The immunity extended by the statute, as the Howes contend, is limited, but the limitation is conditioned upon nothing other than the presence of good faith. This limitation will be clarified as we dispose of the pivotal issue in this case, which is the application of the limited immunity and presumption of good faith in conjunction with a Rule 12(b)(6) motion to dismiss.

D.

Presumption of Good Faith

¶ 13. The immunity of Section 43-21-355 is not absolute because any person who reports can be found civilly and criminally liable if the plaintiff can produce evidence demonstrating that they reported in bad faith, which requires a showing of ill-will or actual malice. The statutorily mandated presumption of good faith, therefore, is rebuttable.

¶ 14. In application, then, the function of the presumption is to absolve mandatory reporters from having to present evidence that demonstrates they acted in good faith, unless, however, the plaintiff can produce affirmative evidence to overcome the presumption. Upon presentation of such evidence by the plaintiff, the presumption is rebutted, and a Rule 12(b)(6) motion to dismiss is then defeated, but not before.

¶ 15. To aid in understanding this concept, the Appellate Court of Illinois, Fourth District, in Lehman v. Stephens, illustrated meeting the presumption of good faith by introducing what it termed the “bursting bubble theory.” Lehman v. Stephens, 148 Ill.App.3d 538, 101 Ill.Dec. 736, 499 N.E.2d 103, 112 (1986). Upon filing, mandatory reporters are automatically enveloped in a bubble of immunity. But “once evidence is introduced contrary to the presumption, the bubble bursts, and the presumption vanishes.” Id. (citations omitted). The party acting under the presumption has nothing to prove, while “[t]he party intending to rebut the presumption must come forward with evidence sufficient to support a finding of the nonexistence of the presumed fact.” Id. Failure to present any evidence contrary to the presumption, demands that “the prima fa-cie case created under the presumption will prevail, and the defendants would be entitled to judgment as a matter of law.” Id.

III.

Conclusion

¶ 16. For the Howes to overcome the good faith presumption, thereby defeating Dr. Andereck’s motion to dismiss, their obligation was to satisfy the court as to the availability of evidence that demonstrates Dr. Andereck acted with ill-will or actual malice. The mere conclusory allegations and accusations in the complaint were insufficient to overcome the presumption. In an apparent effort to address the inadequacy of their complaint, the Howes claim that they were unable to rebut the presumption of good faith because the circuit court dismissed the case without allowing them adequate time to conduct discovery. By making this contention, the Howes, in effect, admit their failure to present any actual evidence to meet the statutory presumption of good faith. Nonetheless; they maintain that they were improperly hindered in pursuing such evidence, if it existed.

¶ 17. We find that contention to be without merit. In the eight month period between the filing of their original complaint and the order entered by the circuit judge, the Howes conducted no discovery to gather evidence for the purpose of overcoming the presumption in Dr. Andereck’s favor. They neglected to submit any discovery even after the trial judge extended discovery an additional eleven days.

¶ 18. Presented with no evidence outside the bare allegations of the complaint, which contained no specific factual assertions that, if proven, would create a legitimate disputed issue of whether Dr.. Ander-eck was proceeding in bad faith, we cannot find error in the trial court’s ruling.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS AND CHANDLER, JJ., CONCUR. SOUTHWICK, P.J., AND GRIFFIS, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: BRIDGES, P.J.,

license: Public Domain

text:
    Timothy V. ROSS, Todd Ross and Champion Industries, Inc., Appellants v. NATIONAL FORMS & SYSTEMS GROUP, INC. and Mickey McCardle, Appellees.
    No. 2002-CA-01182-COA.
    Court of Appeals of Mississippi.
    June 22, 2004.
    Certiorari Denied Sept. 16, 2004.

      April D. Reeves, Jackson, David Lee Sandefur, and Neville H. Boschert, Laura L. Gibbes, Jackson, attorneys for appellants.
    Reuben V. Anderson, Gary E. Friedman, James W. Craig, Jackson, attorneys for appellees.
   MODIFIED OPINION OF MOTION FOR REHEARING

BRIDGES, P.J.,

for the Court.

¶ 1. Timothy V. Ross, et al. are appealing from the Hinds County Circuit Court’s verdict in favor of National Forms & Systems Group, Inc. and Mickey McCardle, on all counts for $1,744,937 in compensatory damages and $750,000 in punitive damages. The verdict was later amended to include $645,119 in attorney’s fees and expenses for a total judgment of $3,140,056. The issues are stated verbatim.

STATEMENT OF THE ISSUES

I. THE TRIAL COURT ERRED IN FINDING AS A FACT THAT TIM WAS PRESIDENT OF NATIONAL AND THAT TIM OWED FIDUCIARY DUTIES TO NATIONAL AS A MATTER OF LAW.

II. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANTS’ MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR FOR NEW TRIAL BECAUSE TIM DID NOT BREACH FIDUCIARY DUTIES AS A MATTER OF LAW.

III. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANTS’ MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT FOR NEW TRIAL BECAUSE DEFENDANTS DID NOT TOR-TIOUSLY INTERFERE WITH NATIONAL’S CONTRACTUAL AND BUSINESS RELATIONS AS A MATTER OF LAW.

IV. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANTS’ MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR FOR NEW TRIAL BECAUSE DEFENDANTS DID NOT COMMIT CIVIL CONSPIRACY AS A MATTER OF LAW.

V. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANTS’ MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR FOR NEW TRIAL BECAUSE NATIONAL FAILED TO PROVE PROXIMATE CAUSATION AS A MATTER OF LAW.

VI. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANTS’ MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR FOR NEW TRIAL BECAUSE NATIONAL FAILED TO PROVE ACTUAL AND PUNITIVE DAMAGES AS A MATTER OF LAW.

VII. THE TRIAL COURT ERRED IN FAILING TO GRANT THE DEFENDANTS’ MOTION TO DISMISS BASED UPON NATIONAL’S AND MeCARDLE’S MATERIAL MISREPRESENTATIONS TO THE COURT.

FACTS

¶ 2. Timothy V. Ross began working for National Forms & Systems Group, Inc. (National), as a sales representative in mid-1998. Tim previously worked as a sales representative for Dixie Data, from 1991 until 1997, which sells a product similar to National’s. Tim began working for National as an independent contractor bringing with him existing customers and soliciting new ones. Tim kept 75% of the gross profits and paid for all sales expenses himself. His relationship was similar to National’s relationship with other salesmen, namely Bill Conner and A1 Watts.

¶3. National’s sole shareholder was a company called Jackson Business Forms, Inc. (JBF). Mickey McCardle was the president of JBF and he was also one of the two directors of National. JBF manufactured and sold forms to distributors. National was a distributor and sold forms to their end users'. Therefore National was a competitor of JBF’s other customers. JBF had separate offices from National but all of National’s billing, invoicing and collection operations were performed at the JBF offices by JBF employees. Also, all sales and accounting records were maintained in JBF offices since the chief financial officer (CFO) of JBF is also the CFO of National.

¶ 4. The independent contractor salesmen National employed were not required to sign non-competition agreements and were not required to sign trade secret agreements in order to protect the confidentiality of customer information. Also, invoices of sale orders had a carbon copy entitled “salesman’s copy” which National allowed the salesmen to either keep or throw away.

¶ 5. In February of 1999 Tim became a National employee in order to obtain health insurance and also began leasing a building on Highway 80 in Jackson, Mississippi, rather than working from his home. The work done for National in the JBF offices was not moved to the new offices on Highway 80 and Tim later hired several employees to help him in the Highway 80 office. In order to rent the space Tim had to submit business plans and projections. He did not sign those plans or projections as president nor did he sign the original lease as such but he did sign later lease amendments as president of National. The newly hired employees were individuals he had known and worked with previously at Dixie Data. All of them, like Tim, brought with them existing customers and did not sign non-competition agreements. Many of these employees were unaware of the company’s connection with McCardle.

¶ 6. In July of 1999 Tim began signing checks and agreements as president of National at McCardle’s request. Tim claims he was unaware that the board had voted him president and that such a position came with fiduciary duties. Tim believed he was signing merely to hide JBF’s involvement with National, since it was a competitor to JBF’s other customers. Tim also highlights the fact that revisions were done to the July 1999 corporate minutes long after Tim had left National and just before they were submitted for discovery. However, National claims Tim was fully aware of his role as president and the responsibilities it required.

¶ 7. Tim did not have access to any of National’s financial information or control over National’s accounting method which was changed without his knowledge, authority or consent. This change greatly reduced Tim’s salary since it was computed based on gross profits. Tim did not even have keys to the JBF offices where these records were kept. Tim also had no contact with Watts and Conners, National’s other independent contractors who did not know Tim had been voted president.

¶ 8. In March of 2000 Tim refused McCardle’s proposal for a reorganization of the business requiring him to sign a non-competition agreement and to have Bill Banks become manager of the business. Tim went to his brother, Todd Ross, division manager of the Champion Industries office in Jackson and obtained the name and number of Doug McElwain, a vice president of Champion, and requested a meeting to discuss a possible position with them. Todd knew Tim was an officer of National prior to their discussions; however, McElwain did not. McElwain and Tim had a lunch meeting on March 28, 2000, and at that meeting nothing was decided but either the next day or the day following Tim called McElwain to accept a position with Champion. On March 31, 2000, Tim and McElwain met at the National office, those also present were Lynn Taggart, Bobby Renfroe, and Grady Ross, the employees Tim had hired. How exactly the meeting was conducted and what topics were covered is a matter of debate amongst the parties. However, after the meeting everyone had decided to leave National to work for Champion.

¶ 9. They began selling under the Champion name the next week on April 4, 2000. Tim told McElwain he was leaving on the second or third of April and the other employees resigned on the fourth. Tim began renting the same office space for Champion and the sales people kept their personal files and personal sales records, containing the carbon copy of invoices called “salesman’s copy.” Tim and his employees also notified their customers of their change in affiliation. The customer owned inventory they took was returned to National within two weeks. However, National adds that a Champion employee, John Whited, took some of National’s inventory to the Champion office on April 5, 2000.

¶ 10. On April 5, 2000, when the phone company called McCardle regarding the phone number’s changing at the Highway 80 location, McCardle was a bit surprised. Apparently, he still did not know the employees of Tim had resigned and had planned to go to their office to reassure them of their job security. Later that morning when McCardle went to the Highway 80 offices, his first ever visit to those offices, he found the locks changed and believed Tim had “hijacked” his company. For this, National filed suit against Tim Ross, Todd Ross and Champion Industries for conspiracy and breach of fiduciary duties.

ANALYSIS

I. THE TRIAL COURT ERRED IN FINDING AS A FACT THAT TIM WAS PRESIDENT OF NATIONAL AND THAT TIM OWED FIDUCIARY DUTIES TO NATIONAL AS A MATTER OF LAW.

¶ 11. The standard of review on appeal of motions for directed verdict is de novo:

When deciding whether the granting of a motion for directed verdict was proper by the lower court, this Court considers the evidence in the light most favorable to the non-moving party and gives that party the benefit of all favorable inferences that may be reasonably drawn from the evidence presented at trial. Houston v. York, 755 So.2d 495 (¶ 12) (Miss.Ct.App.1999). If those facts and inferences, so viewed, can be said to create a question of fact from which reasonable minds could differ, then the matter should be submitted to the jury, and the directed verdict should not be granted.

Ducksworth v. Wal-Mart Stores, Inc., 832 So.2d 1260, 1262(¶ 2) (Miss.Ct.App.2002).

¶ 12. At the close of evidence the trial court granted motions for directed verdict in favor of National on the issues of whether^ or not Tim Ross was president of National from, July 1999 until April 2000 and whether or not Tim Ross had fiduciary duties to National as a result. On appeal this court reviewed the evidence presented at trial, interpreted such evidence presented to the benefit of Tim, the non-moving party, and found that there were sufficient questions of facts from which reasonable minds could differ requiring these issues to be decided by the jury and not the trial judge.

¶ 13. National presented evidence' that Tim had signed numerous documents as president including lease agreements, credit applications, website applications and checks. National even had proof that in his resignation letter that he resigned as president of National. The July 1999 board minutes show he was elected president, but National claims they did not rely solely on this evidence. Also, in their proof National showed Tim had authority to hire and fire at will and therefore exercised his control over employees.

¶ 14. It is Tim’s theory that McCardle only wanted him to appear to be the president of the company in order to disguise McCardle’s involvement with National. This was because JBF’s customers would not appreciate their supplier actively competing with them. There was evidence that the minutes'for the July 1999 meeting when the board supposedly elected him as president were revised long after Tim left the company before they were due for trial discovery. Tim offered proof that McCar-dle continued to file documents and hold Tim out as president of National more than a year after he left the company. He also presented evidence that he did not know of his official election to the office of president by the board of directors and received no additional compensation for the position. In fact, Tim submitted that he never attended a single board of-director’s meeting as the president of the company is required to do under National’s bylaws.

¶ 15. Most of Tim’s evidence showed that while Tim may have held himself out as president of the company to third parties he had no actual control of the company the way a true president of a corporation would. McCardle, who is not a third party, would have known of Tim’s limitations. Tim had no control over the tax and accounting policies of the corporation which were changed without his knowledge or approval. Tim proved that he never even had keys to the administrative offices of National and that the other independent contractors were not told that Tim had been elected president of the company.

¶ 16. The conflicting evidence does create a question of fact. A question of fact is created if “one party swears to one version of the matter in issue and another says the opposite” and a directed verdict should not be granted when a question of fact exists. Regency Nissan, Inc. v. Jenkins, 678 So.2d 95, 99 (Miss.1996). National and Tim both offered plenty of evidence to support their claim on the issue of Tim’s presidency, and the trial judge’s granting a directed verdict took the decision away from the jury. The jury is “the traditional finder of the facts, and not the court.” It should be the jury that “weights] conflicting evidence and inferences, and determine[s] the credibility of witnesses” not the trial judge as it was in this case. Miss. Transp. Comm’n v. Highland Dev. LLC, 836 So.2d 731, 737(¶ 24) (Miss.2002).

¶ 17. The decision of the trial judge granting the directed verdict in favor of National on the issue of Tim Ross’s presidency and his resulting fiduciary duties was in error. This case is remanded to the lower court to allow a jury to consider these questions of fact. The determination on this issue makes the determination of issues II, III, IV, V, VI presented before this Court moot because they involve motions for new trial and judgment notwithstanding the verdict. These are motions which are based on the verdict of a jury which, because of the above reasoning, did not consider all the evidence it should have.

VII. DID THE TRIAL COURT ERR IN FAILING TO GRANT THE DEFENDANTS’ MOTION TO DISMISS BASED UPON NATIONAL’S AND McCAR-DLE’S MATERIAL MISREPRESENTATIONS TO THE COURT?

¶ 18. Tim Ross moved to dismiss prior to trial and renewed the motion after trial claiming numerous misrepresentations during discovery by National and McCardle regarding a prior lawsuit between McCardle and Fromcraft, McCar-dle’s prior employer. Tim believed the lawsuits to be similar in nature to the one in question now and that it gave McCardle the motive and idea for the current lawsuit. However, a motion in limine prevented this issue from being raised during the trial. The severity of a penalty for discovery abuses is a matter for the sound exercise of trial court discretion. “The power to dismiss for violations of rules of procedure ‘is inherent in any court of law or equity, being a means necessary to orderly expedition of justice and the court’s control of its own docket.’ ” Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1367 (Miss.1990) (quoting Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986)). This Court reviews for whether the discretion was abused. Palmer, 564 So.2d at 1368.

¶ 19. It is only in extreme circumstances that a trial court should dismiss a suit for failure to comply with discovery requirements. Pierce v. Heritage Properties, Inc., 688 So.2d 1385, 1388 (Miss.1997). The trial court’s decision will be affirmed absent our “definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss.1990).

¶ 20. In the Pierce case the court found the misrepresentations in the discovery process were willful and the result of admittedly false responses to discovery requests and by false testimony in depositions. Pierce, 688 So.2d at 1390. The circuit judge in Pierce found the answers to be “manifestly false” and constituted bad faith. Id. In the present case the judge did not find that the misrepresentations rose to the level of being manifestly false and he “was not convinced that there had been any lying.” Tim did not offer support that the misrepresentation made by National and McCardle during discovery were manifestly false to an extent requiring dismissal. Therefore, it was not an abuse of the trial judge’s discretion to deny dismissal because of those discovery violations. The ruling of the trial judge denying Tim Ross’s motion to dismiss is affirmed.

¶ 21. National argues on rehearing that we should remand solely on the issue of the duty owed, if any, by Ross to National. We were asked to leave the amount of damages undisturbed, subject to the contingency on remand of liability being found. A reversal solely of part of a judgment occasionally occurs, but only when the reversal is due to an error that an appellate court can with confidence find could not have affected other contested issues in the case. See Peterson v. Ladner, 785 So.2d 290, 294-95 (Miss.Ct.App.2000). We do not have that confidence here. We reverse and remand on all issues.

¶ 22. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND REMANDED FOR A NEW TRIAL. COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

KING, C.J., SOUTHWICK, P.J., THOMAS, LEE, IRVING, MYERS, AND CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.

      . The motion for rehearing is denied. The original opinion is withdrawn and this opinion is substituted therefor.


author: KING, C.J.,

text:
    Willie MARSHALL, Jr., Appellant v. B.C. RUTH, et al., Appellees.
    No. 2003-CP-00084-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.
    Willie Marshall, Jr., appellant, pro se. Office of the Attorney General by Jane L. Mapp, attorney for appellees.
    Before KING, C.J., LEE and GRIFFIS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Willie Marshall, Jr. appeals pro se an order entered by the Circuit Court of Sunflower County dismissing his civil complaint against B.C. Ruth (former chairman), Pete Pope — chairman, Robert Don-ley — parole officer, the Parole Board of Mississippi, the Mississippi Department of Corrections, and the State of Mississippi. Aggrieved, Marshall raises the following issues:

I. Did the Parole Board err by failing to follow Mississippi Code Annotated Section 47-7-27 (Rev.2000)?

II. Did the Parole Board deny Marshall due process of law?

III. Did the trial judge err by denying Marshall’s request for relief?

FACTS

¶ 2. On December 20, 1984, Marshall pled guilty to two burglary charges in the Circuit Court of Bolivar County. His guilty pleas were accepted and sentencing was deferred until the May 1985 term of court. According to Marshall, he committed these burglaries while on parole. Marshall indicated that, after having pled guilty to the burglary charges, he became a confidential informant for the Mississippi Bureau of Narcotics and the Bolivar County Sheriffs Department and his parole was reinstated. Marshall stated that the Parole Board issued a retake warrant for him on June 14, 1985, and rescinded it on August 1,1985.

¶ 3. According to Marshall’s presentence investigation report, in June 1986, he pled guilty to possession of cocaine with intent to sell and sentencing was deferred. On September 22, 1986, Marshall was sentenced to thirty years in the custody of the Mississippi Department of Corrections. On May 26, 1987, he was transported back to the Bolivar County Circuit Court and sentenced to two five-year terms on the earlier burglary charges.

¶4. On June 17, 2002, Marshall filed a civil complaint against B.C. Ruth (former chairman), Pete Pope — chairman, Robert Donley — parole officer, the Parole Board of Mississippi, the Mississippi Department of Corrections, and the State of Mississippi. Marshall’s suit alleged that the failure of the Parole Board to revoke his parole upon entry of the 1984 burglary pleas violated his civil rights.

¶ 5. On December 13, 2002, Marshall filed a motion for summary judgment claiming that B.C. Ruth and the other named respondents failed to prove that they had not violated, Miss.Code Ann. Section 47-7-27 (Rev.2000) and requested relief in the form of release from incarceration and monetary damages. On March 13, 2003, that motion was denied.

¶ 6. On January 21, 2003, Judge Betty W. Sanders dismissed Marshall’s complaint and stated, “Marshall cannot complain in 2002 about parole board action in his favor in 1984 when his parole revocation retake warrant was withdrawn. Marshall accepted their leniency in 1984 but wants to complain in 2002 that their leniency and a breached agreement with Bolivar County law enforcement caused his current incarceration.”

ISSUES AND ANALYSIS

¶ 7. Because issues I and II are interrelated, we have addressed them together.

I. & II.

Did the Parole Board err and cause harm to Marshall by failing to follow Miss.Code Ann. 47-7-27 (Rev. 2000)?

¶ 8. Marshall argues that the Parole Board should have revoked his parole and ordered him incarcerated after he pled guilty to two counts of burglary in 1984. He suggests that had the parole board done so, he would not have been free to commit yet another crime for which he received a thirty year sentence.

¶ 9. The decision to grant or deny parole is within the discretion of the Board. Doe v. State ex rel. Mississippi Dept. of Corrections, 859 So.2d 350(¶ 25) (Miss.2003). Likewise, the decision to revoke and re-incarcerate is also within the discretion of the Board. Mississippi Code Annotated Section 47-7-27 (Rev.2000). Marshall offered no evidence to the circuit court to establish that the Board abused its discretion.

¶ 10. This Court must also note that Marshall did not suggest an abuse of discretion by the Board in 1984, when he received the benefit of that discretion. This Court has said it will not allow an individual to take advantage of a sentence which benefits him, and subsequently attack the legality of the sentence, when it better serves his interest. Graves v. State, 822 So.2d 1089(¶11) (Miss.Ct.App.2002). This issue lacks merit.

III.

Did the trial judge err in denying Marshall’s civil complaint?

¶ 11. Marshall alleges that he has a liberty interest in the parole process, and that interest was further violated when the circuit court dismissed his complaint against members of the Parole Board. As noted previously, Marshall failed to offer proof that the Parole Board abused its discretion, or substantially deviated from its procedure. The Board exercised its discretion and did not re-incarcerate Marshall. Edmond v. Hancock, 830 So.2d 658(¶ 5) (Miss.Ct.App.2002). He accepted that exercise of the Board’s discretion and will not now be heard to complain.

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

BRIDGES, P.J., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.


text:
    John P. SLAY d/b/a Slay’s Processing Plant, Appellant/Cross-Appellee. v. Lester SPELL, Jr., Commissioner of the Mississippi Department of Agriculture and Commerce, Appellee/Cross-Appellant.
    No. 2003-CC-00217-COA.
    Court of Appeals of Mississippi.
    Sept. 14, 2004.

      John P. Slay (pro se).
    Office of the Attorney General by: Robert W. Graves, attorney for appellee.
    Before KING, C.J., LEE, P.J., and GRIFFIS, J.
   KING, C.J.,

for the Court.

¶ 1. John P. Slay, proceeding pro se, was cited and fined by the Mississippi Department of Agriculture and Commerce for two violations of failing to submit swab samples for E. coli testing fora three week period. Slay appealed to the Circuit Court of Clarke County, which affirmed the fine. In his subsequent appeal to this Court, Slay asserts the following points of error which we quote verbatim:

I. Pray the Court finds the charges against me to be without merit .because they were supported by no substantial evidence and were arbitrary and capricious.
II. The appointment of James Meadows, with a 12th grade education, as Director of Meat Inspection, vio- ■ lates State code and puts the Mississippi Food Safety Program at risk.
III. The appointment of Larry Boyd, Assistant Director of Meat Inspection Division, as Hearing Officer to hear charges brought by his boss, James Meadows, Director of Meat Inspection makes a mockery of the judicial process.
IV. Is it proper for Honorable Judge Bailey to lie in his Order affirming the decision of the Mississippi Department of Agriculture and Commerce or does he get a Free pass.

Additionally, The Mississippi Department of Agriculture and Commerce has filed a cross appeal in this matter asserting that Slay’s appeal should be dismissed because he did not file the record from the Department of Agriculture with the Circuit Clerk within thirty days of filing his notice of appeal. Due to the disposition of this matter this issue is moot, and finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. Slay owns and operates Slay’s Processing Plant, a small slaughter house located in Quitman, Mississippi, where he slaughters hogs. Slay operates under a license issued by the Mississippi Department of Agriculture and Commerce, hereinafter Department. The Department regulates the operations of state licensed slaughterhouses to ensure the safety of consumers through the Mississippi Meat Inspection Law codified in Mississippi Code Annotated Section 75-35-1-801. Mississippi Code Annotated Section 75-35-201 (Rev.2000) requires compliance and cooperation with the United States Department of Agriculture in developing and administering the state meat inspection laws. Pursuant to Mississippi Code Annotated Section 75-35-201, the Department adopted the Federal Meat Inspection Act which includes regulations that require testing slaughtered carcasses for the presence of the harmful bacteria, E. coli. If an animal is improperly slaughtered, E. coli can contaminate the meat and could cause death in those who ingest it. The federal regulations require that operators of small slaughterhouses, those with a volume of less than 20,000 slaughtered hogs per year, take an E. coli swab test of one slaughtered carcass a week, beginning with the first full week in June, until thirteen samples have been taken. The E. coli sampling regulations do not require that a custom hog, one meant for personal consumption only, be subjected to the E. coli testing, only inspected hogs are required to be tested.

¶ 3. The general procedure for taking an E. coli sample begins after a hog has been slaughtered and dressed, and the carcass placed in the cooler overnight. The sample is collected the next day by dragging a damp sponge across the jowl, belly, and ham of the chilled hog .carcass. The sponge saihple is placed in an insulated container, and sent to an approved laboratory to be analyzed for the presence of E. coli. If E. coli is present in a sample, it is reported as being so many colony forming units per square centimeter. For hogs, a sample that has over ten colonies per square centimeter is considered a positive sample. The laboratory then prepares a report giving the test results, and mails it and a new test kit to the plant operator. The E. coli testing regulations require that plant policies be re-evaluated and corrective measures be taken if three or more positive E. coli samples are received. If the sample gets hot before it is analyzed, it is considered contaminated because the heat will cause a sample that might already contain E. coli to have a much higher bacteria count.

¶ 4. The Director of the Meat Inspection Division of the Department, Jamés Meadows, began administrative proceedings against Slay charging him with failing to take E. coli swab tests for the weeks of October 8, 15, and 22, 2001. On January 31, 2002, Larry Boyd, Deputy Director of Meat Inspection, acting as hearing officer, conducted an evidentiary hearing. Boyd found Slay guilty of two violations, recommended that he be .fined $250 for each violation, and that his meat establishment license be suspended for a one week period for each violation.

¶ 5. On- February 4, 2002, Lester Spell, Commissioner of the Department, entered an order affirming the recommendation of the hearing officer.

¶ 6. On February 7, 2002, Slay filed a notice of appeal to the Circuit Court of Clarke County. On December 30, 2002, the circuit judge affirmed the findings of the Commissioner. Aggrieved, Slay has perfected his appeal.

ISSUES AND ANALYSIS

I.

Pray the Court finds the charges against me to be without merit because they were supported by no substantial evidence and were arbitrary and capricious.

¶ 7. Slay contends that the decisions of the hearing officer and the circuit judge were arbitrary and .capricious because they were not supported by the evidence. Slay claims that the only evidence to support the finding of the agency and the circuit judge was an unverified, unsigned e-mail of a statistical report that was impeached by the Department’s “key witness,” Noel Hall. Slay also argues that state regulations were improperly preempted by federal regulations.

¶ 8. The standard of review for the findings and actions of an administrative agency is well established:

The reviewing court will entertain the appeal to determine whether or not the order of the administrative agency 1) was unsupported by substantial evidence, 2) was arbitrary or capricious, 3) was beyond the power of the administrative agency to make, or 4) violated some statutory or constitutional right of the complaining party. These are the only grounds for overturning an agency action; otherwise, the agency’s determination must remain undisturbed.

Mississippi Comm’n on Environmental Quality v. Chickasaw County Board of Supervisors, 621 So.2d 1211, 1215 (Miss.1993). The decision of the Commissioner is only arbitrary and capricious if it is unsupported by any evidence. Hall v. Board of Trustees of State Institutions of Higher Learning, 712 So.2d 312, 324-25 (¶ 44) (Miss.1998). “A reviewing court cannot substitute its judgment for that of the agency or reweigh the facts of the case.” Mississippi State Board of Accountancy v. Gray, 674 So.2d 1251, 1253 (Miss.1996).

¶ 9. Slay was charged with violating 9 C.F.R. § 310.25(a)(2)(v)(A), which requires plants with a volume of less than 20,000 slaughtered swine per year, take an E. coli swab test of one slaughtered carcass a week, beginning with the first full week in June, until thirteen samples have been taken. Slay contends that the federal regulations do not apply because his plant is a state-inspected plant only shipping intrastate.. Slay is in error. Pursuant to Mississippi Code Annotated Section 75-35-201(1), the Department was required to adopt standards that were at least equal to federal regulations. On August 13, 1998, the Department formally adopted, and filed with _ the Mississippi Secretary of State, the federal meat inspection rules and regulations, codified in 9 C.F.R § 310.25(a)(2)(v)(A), which include the requirement and procedure for E. coli testing. Slay contends that the Federal Meat Inspection Act was not lawfully adopted as the Commissioner did not hold public meetings prior to its adoption, as required by Mississippi Code Annotated Section 75-33-5 (Rev.2000). Section 75-33-5 only requires that public meetings be held “to discuss and publicize the provisions of this article,” which was adopted in 1960. The Meat, Meat-Food and Poultry Regulation and Inspection Law of 1960 does not require that a public meeting be held every time a regulation is adopted, or amended, and states in relevant part, “Hollowing the public meetings provided above, the commissioner shall promulgate rules and regulations for the orderly administration and enforcement of this article, not inconsistent with the provisions hereof, and shall spread same upon the minutes to be kept in his office.” Id. The federal regulations were adopted lawfully, and are applicable to Slay’s plant.

¶ 10. The E. coli testing program for the period during which Slay was charged began on June 1, 2001. The record indicates that Slay did not submit samples for E. coli testing for the first eight weeks of this period. In response to that failure, the Department suspended providing inspection services at Slay’s plant, but the suspension was held in abeyance conditioned upon Slay taking the samples in the future. Slay was not charged with any wrongdoing regarding this failure, and he subsequently began taking the required samples, and sending them to Standard Laboratories for analysis.

¶ 11. Although his argument is very unclear, Slay seems to argue that the evidence does not support a finding that he did not take the required E. coli tests, and that the only evidence to support any violation was an unverified e-mail sent to the United States Department of Agriculture (USDA) for statistical purposes.

¶ 12. On December 14, 2001, Slay was charged in a complaint, filed by James Meadows, with failing to submit samples for E. coli testing for the weeks October 8, 15, and 22, 2001. The kill reports submitted for these three weeks, by the field inspector to the Department, indicate that Slay slaughtered hogs all three of these weeks. Slay was required to submit samples for those weeks, as he had still not submitted the thirteen samples required by federal regulation. However, Standard Laboratories’ records indicate that no samples were submitted by Slay for the weeks of October 8, 15, and 22. Slay’s own records indicated that there were no test results for the weeks of October 8, 15, and 22.

¶ 13. The Department’s field inspectors prepare a weekly “kill report” for each inspected plant. This report is used for statistical information to track the number and weight of animals being slaughtered in the state. The reports are prepared on-site, e-mailed to the Department’s main office in Jackson where they are printed, and then are sent to the USDA, Department of Agriculture Statistics. The documents, although available in e-mail form only and therefore unsigned, are admissible as government records prepared in the regular course of business pursuant to Mississippi Rules of-Evidence 803(8) and 901(b)(7). The records were authenticated at the Commission hearing by their custodian, and were admitted into evidence. We find no merit to Slay’s allegation that the records were impeached or improperly admitted.

¶ 14. ' Slay argues that he submitted a sample for the week of October 22, 2001. Slay did in fact send in a sample that week, but it was from a custom hog, not an inspected hog as required by'9 C.F.R. § 303.1(a)(2), and therefore was not a valid sample under the E. coli regulations, and does not count as one of his thirteen samples. A custom hog is defined in Mississippi Code Annotated Section 75-35-31(l)(a) (Rev.2000) as a slaughter that occurs when the owner of the animal brings it to be slaughtered, and the meat is used exclusively by the owner of the animal, members of his household, and his non-paying guests and employees. The field inspector was at Slay’s plant during the week of October 22, 2001, when Slay’s son admitted that he had slaughtered an inspected hog that day, but had not taken a sample for E. coli testing before grinding the meat up. Slay’s plant sent in a sample from one of the chilled hog carcasses, for the week of October 22, 2001. This sample was from a custom hog, and not from an inspected hog, and therefore did not comply with the regulations.

¶ 15. Slay also makes an argument regarding the confusion over a sample sent to Standard Laboratories. Standard’s technician admitted that he “threw out” one of Slay’s samples because it was too hot to be tested by the time it arrived at the lab. Standard Laboratories’ records indicate that the sample thrown out was taken sometime between November 20, 2001 and December 18, 2001, while Slay contends the sample is one that he is charged with having not taken. This argument is unpersuasive. Giving Slay the benefit of the doubt about this sample, the hearing officer dismissed one of the charges against Slay, and found him guilty on only two violations, instead of three. Although, Slay claims the post office lost another sample, and that he had a discussion with the Quitman postmaster regarding this, he offered no proof of this at the hearing, or in his brief to this Court, therefore, we find no merit to this uncorroborated allegation.

¶ 16. There is substantial evidence in the record that Slay violated 9 C.F.R. § 310.25(a)(2)(v)(A), as lawfully adopted by the Mississippi Department of Agriculture, by not submitting E. coli tests for the weeks of October 8, 15, 22, 2001. In an effort to respond to Slay’s claim that one of the samples was sent in but discarded by the lab, the hearing officer determined it appropriate to disregard the evidence as to one of the violations, and access a penalty to Slay on the two remaining violations. The findings of the hearing officer, Commissioner of the Department of Agriculture, and the Circuit Court of Clarke County are supported by substantial evidence, and were not arbitrary and capricious.

II.

The appointment of James Meadows, with a 12th grade education, as Director of Meat Inspection, violates State code and puts the Mississippi Food Safety Program at risk.

¶ 17. Slay offers no authority to support this position, while he makes reference to Mississippi Code Annotated Section 75-33-11 (Rev.2000), it offers no comfort to him on this issue. The Commissioner is given great latitude in the appointment of personnel pursuant to Mississippi Code Annotated Section 75-33-11. Accordingly, we find no merit to this issue.

III.

The appointment of Larry Boyd, Assistant Director of Meat Inspection Division, as Hearing Officer to hear charges brought by his boss, James Meadows, Director of Meat Inspection makes a mockery of the judicial process.

¶ 18. Slay claims that Larry Boyd, the hearing officer in his ease, had a conflict of interest because the allegations were brought by his superior.

¶ 19. In order for Slay to prevail on a conflict of interest claim it is necessary that he present evidence of a personal bias, financial interest arising from this fact, or evidence of misconduct. United Cement Co. v. Safe Air for the Env’t., Inc., 558 So.2d 840, 842-43 (Miss.1990). United Cement further stated:

[T]here is a presumption that the officers conducting the hearing and the members of the Board behave honestly and fairly in the conduct of the hearings and in the decision-making process. Absent some showing of personal or financial interest on the part of the hearing officer or evidence of misconduct on the officer’s part, this presumption is not overcome. The hearing officer might well be an employee of the permitting board or a member of the board itself.

Id. (internal citations omitted).

¶ 20. Slay’s sole evidence of a conflict of interest is that the allegations were filed by Boyd’s superior. This alone does not establish a conflict of interest. This Court must also note that Slay did not previously raise a conflict of interest claim. Having failed to raise this issue previously, it is procedurally barred. See Douglas v. Blackmon, 759 So.2d 1217, 1221 (¶ 13) (Miss.2000).

¶ 21. There is no merit to this assignment of error.

IV.

Is it proper for Honorable Judge Bailey to lie in his Order affirming the decision of the Mississippi Department of Agriculture and Commerce or does he get a Free pass.

¶ 22. Finally, Slay argues that the circuit judge misstated the various findings in his order. This Court has reviewed the record, including the order and finds this issue to be without merit.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF CLARKE COUNTY IS AFFIRMED ON BOTH DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

BRIDGES, P.J., AND LEE, J„ IRVING, MYERS, CHANDLER, GRIFFIS, AND BARNES, JJ., CONCUR.

      . Miss.Code Ann. § 75-33-5. Public meetings; rules and regulations; records; amendments to regulations. From and after the effective date of this article, the commissioner is hereby authorized and directed to hold not less than three (3) public meetings, one meeting in each supreme court district, and such other meetings as he may consider necessary, to discuss and publicize the provisions of this article and to obtain such information as may be possible to promulgate rules and regulations for the enforcement of this article. The commissioner shall publicize the date, hour and place of the meetings through the press and shall publish a notice of such meetings at least thirty (30) days prior thereto in at least one daily newspaper having a general circulation in the area of such meeting.
      Following the public meetings provided above, the commissioner shall promulgate rules and regulations for the orderly administration and enforcement of this article, not inconsistent with the provisions hereof, and shall spread same upon the minutes to be kept in his office. Also, the commissioner shall prescribe and supply the necessary and proper forms to be used in carrying out the provisions hereof.
      Provided, however, the commissioner shall not promulgate any rules and regulations which are inconsistent with the rules and regulations of the U.S. Department of Agriculture governing the businesses covered by this article.
      The commissioner shall obtain and keep in his office a minute book which shall be plainly identified as a record of the things had and done in carrying out the administration of this article, and for the proper recordation of the rules and regulations promulgated hereunder. Every licensee hereunder shall be furnished a copy of such rules and regulations when a license is issued. No amendment to a rule or regulation containing a penalty for the violation thereof shall become effective in less than thirty (30) days from the date of such amendment, and the date of such amendment must be spread upon the minutes of the commission.

      . M.R.E. 803(8): Hearsay Exceptions; Availability of Declarant Immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
      (8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

      . M.R.E. 901. Requirement of Authentication or Identification.
      (a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
      (b) Illustrations. By way of illustration only, and not be way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
      (7) Public Records or Reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or-data compilation, in any form, is from the public office where items of this nature are kept.

      . Miss.Code Ann. § 75-35-31. Exemptions from inspection requirements; compliance with sanitary regulations; application of adulteration and misbranding provisions to products not required to be inspected.
      (l).The provisions of .this article requiring inspection of the slaughter of animals and the preparation of the carcasses, parts thereof, meat and meat food products at establishments conducting such operations shall not (a) apply to the slaughtering by any person of animals of his own raising, and the preparation by him and transportation in intrastate commerce of the carcasses, parts thereof, meat and meat food products of such animals exclusively for use by him and members of his household and his nonpaying guests and employees; nor (b) to the custom slaughter by any person, firm, or corporation of cattle, sheep, swine, or goats, delivered by the owner thereof for such slaughter, and the preparation by such slaughterer and transportation in intrastate commerce of the carcasses, parts thereof, meat and meat food products of such animals, exclusively for use, in the household of such owner, by him, and members of his household and his nonpaying guests and employees: provided, that such custom slaughterer does not engage in the business of buying or selling any carcasses, parts of carcasses, meat or meat food products of any cattle, sheep, swine, goats, or equines, capable of use as human food.

      . Miss.Code Ann. § 75-33-11. Employees. The commissioner is hereby authorized and empowered to designate or assign any employee of the department of agriculture and commerce to perform and carry out the provisions of this article. Also, he is authorized to employ such other personnel as he may consider necessary to assist him in promulgating the rules and regulations authorized hereunder and employ such other personnel as he may consider necessary to assist him in promulgating the rules and regulations authorized hereunder and employ such inspectors as he may consider necessary for the faithful administration and enforcement of this article and the rules and regulations promulgated hereunder.
      The commissioner shall endeavor to appoint, designate and employ persons qualified in the respective job assignments for the enforcement of this article. Any employee may be dismissed at any time for failure to perform the duties required of him.


text:
    Steven ROLAND a/k/a Steven A. Roland, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00872-COA.
    Court of Appeals of Mississippi.
    Sept. 14, 2004.

      Clay Spencer Nails, Corinth, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   BRIDGES, P.J.,

for the Court.

¶ 1. This appeal follows the conviction of Steven Roland on the charges of murder, arson, and possession of a firearm by a felon. Roland, a habitual offender, was sentenced to three consecutive life sentences. Aggrieved, Roland asserts the following issues on appeal:

I. WHETHER THE TRIAL COURT ERRED IN NOT APPOINTING AN INVESTIGATIVE EXPERT (PRIVATE INVESTIGATOR) TO ASSIST THE DEFENDANT IN GATHERING EVIDENCE TO USE IN HIS DEFENSE.

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE DEFENDANT’S EX-WIFE TO TESTIFY AS TO WHAT SHE SAW THE DEFENDANT DO AND WHAT HE SAID' TO HER DURING THE TIME OF THEIR MARRIAGE.

III. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE ADMISSION OF A TAPED TELEPHONE CONVERSATION BETWEEN THE DEFENDANT AND HIS THEN WIFE.

IV. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE ADMISSION OF GRUESOME PHOTOGRAPHS OF THE VICTIM AND CRIME SCENE.

V. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT’S MOTION FOR JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT.

Finding no error, we affirm.

FACTS

¶ 2. In the early morning hours of December 5, 2001, Roland and his wife Anita left their home in Selmer, Tennessee and traveled to Corinth where they visited Jimmy Dixon. Anita dated Dixon before she married Roland. Roland, jealous and suspicious because Dixon had asked Anita’s mother about his wife, confronted Dixon. The meeting turned physical when Roland shoved Dixon, hit him in the head with a Ruger .22 pistol, and knocked him to the floor. Anita convinced her husband to let Dixon up. When Dixon’s phone rang, Dixon attempted to flee his home. However, Roland, using the same .22 caliber pistol, killed Dixon when he fired two shots into Dixon’s back. Roland threatened to kill Anita if she did not follow his instructions.

¶ 3. Having killed Dixon, Roland concentrated on concealing the homicide. Roland left Dixon where he lay and set Dixon’s house on fire, but not before taking some items from the house. Satisfied, Roland focused on disposing of the murder weapon. Using a grinder, he filed the serial numbers off the pistol. Not content, he drove to the Savannah Bridge and rid himself of the murder weapon when he threw the barrel and clip into the Tennessee River. However, one key link to the crime still existed. Although Roland threatened to kill her if she revealed what he had done, Anita implicated Roland in the homicide. Through Anita’s information, the Alcorn County Sheriffs Office arrested Roland. Other facts will be discussed as necessary.

¶ 4. Roland was formally charged in an indictment returned by the Alcorn County Grand Jury. He proceeded to trial on February 3, 2003. The jury found Roland guilty of murder, arson and possession of a firearm by a felon. The circuit court sentenced Roland, a habitual offender, to three life sentences without the possibility of parole. Finding no error, we affirm the circuit court’s decision.

ANALYSIS

I. DID THE TRIAL COURT ERR IN NOT APPOINTING AN INVESTIGATIVE EXPERT (PRIVATE INVESTIGATOR) TO ASSIST THE DEFENDANT IN GATHERING EVIDENCE TO USE IN HIS DEFENSE?

¶ 5. Roland, by pretrial motion, requested funds to hire an investigator to help his court-appointed attorney prepare a defense. The circuit court denied Roland’s request, yet went on to say that Roland could request investigative help at a later date, should a specific need arise. Roland never made a subsequent request. On appeal, Roland contends that the circuit court committed reversible error when it denied his motion for funds to hire an investigator. Finding no abuse of discretion, this Court finds this issue meritless.

¶ 6. A defendant is not entitled to an investigator without showing a substantial need or concrete reasons why an investigator is necessary. Manning v. State, 735 So.2d 323(¶ 51) (Miss.1999). It is insufficient to allege undeveloped assertions that the requested assistance would be beneficial. Caldwell v. Mississippi, 472 U.S. 320, 323, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Hansen v. State, 592 So.2d 114, 125 (Miss.1991). Roland’s motion did not indicate a substantial need or a concrete reason why he needed an investigator. He merely claimed that there were numerous witnesses in Tennessee who may be able to help his case. “Numerous” is a vague quantity. Likewise, he claimed that those witnesses may have helped his case. May naturally implies that those witnesses may not have helped Roland’s case. Concerning the helpful quality that these potential witnesses may or may not have provided, how could they have helped? Would they have supplied an alibi or testified to some affirmative defense? We do not know, and neither did the circuit judge. We may only reverse the circuit court’s decision on an indigent defendant’s motion for funding to obtain an investigator if the circuit court’s decision was an abuse of discretion. Grayson v. State, 806 So.2d 241(¶ 36) (Miss.2001) (citing Hansen, 592 So.2d at 125). In light of these unanswered questions, brought about by sparse information, this Court can not determine that the circuit court abused its discretion in denying Roland’s motion for funds for an investigator.

II. DID THE TRIAL COURT ERR IN ALLOWING THE DEFENDANT’S EX-WIFE TO TESTIFY AS TO WHAT SHE SAW THE DEFENDANT DO AND WHAT HE SAID TO HER DURING THE TIME OF THEIR MARRIAGE?

¶ 7. Roland filed a pretrial motion, through which he sought to prevent Anita’s testimony. Although they were divorced at the time, Roland claimed that Anita’s testimony • was inadmissible because it was precluded according to marital confidentiality and that admission of her testimony would violate the spousal privilege] The circuit court denied Roland’s motion and allowed Anita to testify. On appeal, Roland contends that in allowing Anita’s testimony, the circuit court committed reversible error.

¶ 8. The relevance and admission or exclusion of evidence is a matter of the trial court’s discretion which will be reversed only for an abuse of that discretion which results in prejudice to a party. Shearer v. State, 423 So.2d 824, 827 (Miss.1982). Finding Roland’s contentions without merit, we affirm the decision of the circuit court.

¶ 9. The spousal privilege, codified within Mississippi Rule of Evidence 504, states that a person has a privilege to prevent his spouse, or former spouse, from testifying as to any confidential communication between himself and his spouse. M.R.E. 504(b). Rule 504 is exclusively limited to communications which are intended to be confidential. Fanning v. State, 497 So.2d 70, 74 (Miss.1986). A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person. M.R.E. 504(a). The presence of another person is deemed to mean that the communication was not intended to be confidential. Fanning, 497 So.2d at 74. Roland asks this Court to extend the privilege to Anita’s testimony regarding Roland’s conduct during their marriage as well as any confidential communications.

¶ 10. Roland has not cited any authority to persuade this Court to bring Roland’s conduct under the protection of the marital privilege umbrella. Anita testified as to what Roland said and did in Dixon’s presence. Thus, until Roland killed Dixon, Roland did not speak or act in confidence with his wife. Moreover, the marital privilege only protects communications. M.R.E. 504(b). Roland’s altercation with Dixon was not a communication, nor was it confidential. When Roland killed Dixon, his act was not a communication. Setting Dixon’s home on fire was not a communication. Attempting to conceal the evidence was not a communication. Because Anita could testify to all these facts, any prejudice to Roland in admitting any confidential communication is harmless in light of the evidence that the privilege does not protect.

III. DID THE TRIAL COURT ERR IN ALLOWING THE ADMISSION OF A TAPED TELEPHONE CONVERSATION BETWEEN THE DEFENDANT AND HIS THEN WIFE?

¶ 11. By pretrial motion, Roland sought to exclude a telephone conversation between Anita and himself. The subject phone call involves a call from Roland placed to Anita. The circuit court denied his motion. On appeal Roland argues that the trial court’s refusal to exclude the recorded conversation he had with Anita constituted reversible error. He reasons that the recorded telephone conversation should have been excluded as a violation of the spousal privilege. Given the case law and other relevant citations above, the recorded phone conversation was admissible.

¶ 12. The spousal privilege, discussed above, does not exclude the conversation from evidence. Roland placed the call from the county jail. A warning is posted near the telephone. That warning alerts callers that calls may be monitored or recorded. Thus, there was no reasonable expectation of confidentiality. What is more, Roland threatened to kill Anita if she talked to authorities. Because Anita was afraid of Roland, she did not want Roland to call her or her family so she contacted the sheriffs office and asked that Roland be prohibited from making calls. Because of Anita’s allegations of threats, an officer set up Anita’s phone to allow Anita to record Roland’s incoming calls. Anita recorded the phone call, not law enforcement. Roland’s subjective belief that he was not talking to anyone else during the conversation is irrelevant.

IV. DID THE TRIAL COURT ERR IN ALLOWING THE ADMISSION OF GRUESOME PHOTOGRAPHS OF THE VICTIM AND CRIME SCENE?

¶ 13. Roland attempted to exclude photographs of Dixon’s remains. He argued that the photographs served no purpose other than to inflame the jury. The circuit court permitted the photographs of Dixon’s body into evidence. Roland appeals the circuit court’s decision and argues that the court committed reversible error by so holding. We disagree.

¶ 14. “The admissibility of photographs generally lies within the sound discretion of the trial court; and, absent an abuse of discretion, the court’s decision will be upheld on appeal.” Jackson v. State, 784 So.2d 180(¶ 9) (Miss.2001). The discretion of the trial judge runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value. Williams v. State, 544 So.2d 782, 785 (Miss.1987). Photographs of the victim have evidentiary value when they aid in describing the circumstances of the killing, the location of the body, the cause of death, or clarify or supplement a witness’s testimony. Gray v. State, 728 So.2d 36 (¶ 92) (Miss.1998).

¶ 15. Reference to the above case law clearly indicates that admission of the photographs of the victim, regardless of their gruesome nature, was proper. The photographs were relevant and probative. The photographs revealed the position and location of Dixon’s body. It was important that the jury understand the position of Dixon’s body in the burned house. Additionally, the photographs corroborated Anita’s testimony and Dr. Stephen Hayne’s autopsy report. In light of the broad standard of admissibility permitted under this issue, we find that the trial court did not err in allowing the photographs into evidence. There is no merit to this assignment of error.

V. DID THE TRIAL COURT ERR IN NOT GRANTING THE DEFENDANT’S MOTION FOR JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT?

¶ 16. Roland requested a directed verdict after the State presented its casein-chief. The circuit court denied that request. Roland proceeded and testified in his defense but was ultimately convicted. Having unsuccessfully requested a judgment notwithstanding the verdict or a new trial, Roland appeals. However, we find his contention without merit.

¶ 17. We must consider all of the evidence in the light most favorable to the State. May v. State, 460 So.2d 778, 781 (Miss.1984). If there is substantial evidence in the record of such quality and weight that a reasonable fair-minded juror might reach different conclusions regarding the guilt of the defendant, we have no authority to disturb the jury’s verdict. Id.

¶ 18. There was sufficient, credible evidence in support of the trial court’s denial of Roland’s motion for judgment notwithstanding the verdict. Anita testified that Roland killed Dixon and set Dixon’s house on fire. Anita also testified that Roland took certain items from Dixon’s home. Lindsay Dixon corroborated Anita’s testimony and identified the articles that Roland took from Dixon’s home as belonging to her father. Sheila Strickland corroborated Anita’s testimony when she testified that she saw Roland’s truck near Dixon’s home on the day of the murder. She also identified Roland as the man she saw. Russ. Alexander testified that diver Ricky Bradford recovered the pistol pieces from the Tennessee River, right where Anita said they would be. Dr. Hayne performed Dixon’s autopsy. His findings corroborated Anita’s version of the crime. Specifically, that Dixon died before his house burned and that the cause of Dixon’s death was two gunshot wounds to his back. Accordingly, the jury had ample evidence to convict Roland.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF ALCORN COUNTY OF CONVICTION OF COUNT I, MURDER; COUNT II, ARSON OF A DWELLING; AND COUNT III, FELON IN POSSESSION OF A FIREARM AND SENTENCE OF LIFE ON EACH COUNT TO BE SERVED CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT PAROLE OR EARNED TIME RELEASE, AND PAY $90,000 IN RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ALCORN COUNTY.

KING, C.J., LEE, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, AND BARNES, JJ., CONCUR.

      . Roland took an SKS assault rifle stock, a rifle barrel, an ammunition clip, and a Christmas ornament.

      . Anita received a divorce from Roland on July 19, 2002.


text:
    James Edward McLAURIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00688-COA.
    Court of Appeals of Mississippi.
    Sept. 14, 2004.

      Jim Davis, attorney for appellant.
    Office of the Attorney General by Deirdre MeCrory, attorney for appellee.
   BRIDGES, P.J.,

for the Court.

¶ 1. James Edward McLaurin was convicted in the Harrison County Circuit Court of felony driving under the influence and sentenced to five years to run consecutively to the sentence he is presently serving. Aggrieved, he asserts the following issues:

I. THE CHARGES AGAINST THE DEFENDANT SHOULD BE DISMISSED BECAUSE OF THE PRIOR CONVICTION IN JEFFERSON DAVIS COUNTY, MISSISSIPPI.

II. THE COURT SHOULD HAVE DIRECTED A VERDICT OF NOT GUILTY BECAUSE THE STATE HAS NO PROOF AS TO WHAT 10% OR MORE BLOOD BASED UPON GRAMS OF ALCOHOL PER TWO-HUNDRED AND TEN LITERS OF BREATH IS.

III. THE COURT ERRED IN ALLOWING THE USE OF THE TWO MISDEMEANOR CONVICTIONS AGAINST THE DEFENDANT.

IV. THE COURT ERRED IN NOT ALLOWING THE DEFENDANT’S JURY INSTRUCTION D-8 AND, FURTHER, IN' NOT ALLOWING THE DEFENDANT TO ARGUE THE RELATION BACK OR EXTRAPOLATION THEORIES TO THE JURY.

¶ 2. Finding no error, we affirm.

■ FACTS

¶3. On July 16, 2001, James Edward McLaurin was indicted on two counts of felony driving under the influence in the Harrison County Circuit Court. At the time he was indicted, McLaurin was serving a sentence for a conviction of driving under the influence out of the Jefferson Davis' County Circuit Court! McLaurin filed a motion to dismiss for violation of the double jeopardy clause because the State was attempting to use the same two previous misdemeanor convictions for driving under the influence that were used in the Jefferson Davis County trial to enhance the charge in Harrison County to felony status. The' prior two convictions were on December 30, 1996, and April 13, 1999. .The Harrison County Circuit Court denied McLaurin’s motion to dismiss.

¶ 4. At trial, Officer Roy. Gibson of the Gulfport ■ Police Department testified that he pulled McLaurin over for speeding in Gulfport, Mississippi at 4:41 a.m. on December 9, 2000. Gibson noticed a strong intoxicating odor and asked McLaurin for his driver’s license. McLaurin instead produced a State of Mississippi Identification Card. Gibson had McLaurin exit the vehicle and again detected the strong smell of alcohol. Officer Gibson then called for a DUI officer who arrived shortly thereafter, at 4:58 a.m. The DUI officer had McLaurin perform several field sobriety tests and also detected a strong smell of alcohol. McLaurin admitted to having been drinking from approximately 9:00 p.m. until approximately 1:00 a.m. The entire event with the DUI officer was videotaped and admitted at trial. McLaurin was given a breathalyzer test and the machine indicated an alcohol content of .151.

¶ 5. McLaurin testified that he was in jail in 1996 for a misdemeanor conviction of DUI and the judge had him sign some papers. McLaurin then testified that he worked on a garbage truck and was locked up at night. McLaurin admitted paying a fine for his misdemeanor conviction of DUI in 1999, but said that he knew he served some time on that conviction. At the conclusion of the trial, the jury found McLaurin guilty of two counts of felony DUI and he was sentenced to serve five years to run consecutively to the sentence he was presently serving from the conviction in Jefferson Davis County.

ANALYSIS

I. SHOULD THE CHARGES AGAINST THE DEFENDANT BE DISMISSED BECAUSE OF THE PRIOR CONVICTION IN JEFFERSON DAVIS COUNTY, MISSISSIPPI?

¶ 6. McLaurin argues that the charges against him should be dismissed because of the prior conviction in Jefferson Davis County, Mississippi. McLaurin feels harassed because of the two prior misdemeanor charges and feels he should only have to be harassed by the misdemeanor charges once. By using the same misdemeanor DUIs in his Harrison County conviction as well as in his Jefferson Davis County conviction, McLaurin argues that his constitutional right against double jeopardy has been violated.

¶ 7. McLaurin’s argument is essentially identical to the argument he made in his motion to dismiss prior to trial. At the hearing on this motion, the prosecutor argued against the motion, citing the cases of Horn v. State, 825 So.2d 725 (Miss.Ct.App.2002) and Smith v. State, 736 So.2d 381 (Miss.Ct.App.1999). In Horn, this Court held that “Horn [was] not being punished for his prior DUIs. Those prior convictions were considered for the sole purpose of enhancing punishment.” Horn, 825 So.2d at 727(¶ 16). “Prior convictions which are ‘constitutionally valid in and of themselves’ may appropriately be used to enhance punishment for subsequent convictions.” Id. (quoting Bailey v. State, 728 So.2d 1070(¶ 12) (Miss.1997)). Smith, citing the United States Supreme Court case of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), similarly held that each offense is separate and distinct in cases of felony DUI enhancement and do not violate the constitutional right against double jeopardy. Smith, 736 So.2d at 383(¶ 6).

¶ 8. McLaurin fails to demonstrate why Horn and Smith should not apply to the case at bar. The trial court properly considered the prosecutor’s argument and citations to Horn and Smith and dismissed McLaurin’s motion. Failing to show any error in the trial court’s conclusion, we find this issue is without merit.

II. SHOULD THE COURT HAVE DIRECTED A VERDICT OF NOT GUILTY BECAUSE THE STATE HAD NO PROOF AS TO WHAT 10% OR MORE BLOOD BASED UPON GRAMS OF ALCOHOL PER TWO HUNDRED AND TEN LITERS OF BREATH IS?

¶ 9. McLaurin asserts that the trial court erred in failing to direct a verdict of not guilty because the State failed to prove that he operated a motor vehicle while having an alcohol concentration of .10% or more in his blood. McLaurin argues that the only proof before the jury as to his blood alcohol content came from Officer Hicks, and Hicks did not know how breath was computed to blood alcohol content. Indeed, the record displays a somewhat confusing colloquy regarding the conversion from breath alcohol content to blood alcohol content.

¶ 10. Having moved for a directed verdict at the close of the State’s case, defense counsel argued outside the presence of the jury that the statute requires .10% blood alcohol content and that no testimony was provided relating the breath test back to the blood test. Defense counsel attempted to question Officer Hicks regarding liters of breath and how to calculate the percentage of alcohol in the blood based on the percentage of alcohol in the breath. McLaurin cites to the case of Fisher v. City of Eupora, 587 So.2d 878 (Miss.1991) which discussed the estimated 2100:1 breath to blood ratio used in the breath alcohol test. Fisher, 587 So.2d at 886. Although Fisher discusses this ratio, it states that the appellants did not introduce any evidence that their particular ratios differed from the accepted average of 2100:1 and that it was up to the jury to weigh the evidence. Id. at 888.

¶ 11. In Johnston v. State, 567 So.2d 237 (Miss.1990), the Mississippi Supreme Court held that Intoxilyzer results may be admitted into evidence if a proper foundation has been laid. Officer Hicks testified that the particular machine used to test McLaurin had been calibrated and certified and that the instrument was used for breath analysis in order to determine blood alcohol content. When asked what blood alcohol concentration the machine gave for McLaurin, Hicks replied, “.151.” On cross-examination, Officer Hicks testified that the machine was the State’s accepted test for determining blood alcohol content through the breath.

¶ 12. Motions for directed verdict and motions for JNOV are for the purpose of challenging the legal sufficiency of the evidence. Noe v. State, 616 So.2d 298, 302 (Miss.1993); Strong v. State, 600 So.2d 199, 201 (Miss.1992). In reviewing the sufficiency of the evidence questions, the court is required to view the evidence in the light favorable to the State, giving it the benefit of all reasonable inferences which may be drawn from the evidence, and accepting as true that evidence which supports guilt. McClain v. State, 625 So.2d 774, 778 (Miss.1993). It must not weigh the evidence or its credibility, as that is within the province of the jury. Id. The court may only reverse if the evidence is such that fair-minded jurors could only find the defendant not guilty. Id.

¶ 13. The testimony was sufficient to allow the jury to determine whether the State had proven that McLaurin was operating a motor vehicle while having a blood alcohol content of .10% or more. This issue is accordingly without merit.

III. DID THE COURT ERR IN ALLOWING THE USE OF THE TWO MISDEMEANOR CONVICTIONS AGAINST THE DEFENDANT?

¶ 14. McLaurin asserts that he served jail time in connection with his two misdemeanor convictions which were before Judge Johnny Hartzog. According to McLaurin, he was not represented by counsel and therefore his prior misdemeanors should not have been allowed to enhance his sentence. McLaurin testified that on his first DUI he stayed in jail for about six months before his conviction and that he worked on garbage trucks for the county in order to serve his sentence after his plea. On the second DUI, McLaurin testified that he “did some time.” McLau-rin testified that both times he signed the paperwork put in front of him but neither time did he remember waiving his right to an attorney.

¶ 15. On cross-examination, McLaurin acknowledged that he could read the documents and acknowledged his signature at the bottom of waiver of attorney forms for both of his prior DUI convictions. The trial court denied the motion to exclude the prior convictions noting that it was evident McLaurin can read and he recognized and acknowledged his own signature on.the documents. . The court found it was only through McLaurin’s denial that he did not know what it was at the time, which is insufficient evidence to set them aside. Both abstracts had blanks on the line following “sentenced to,” leaving no evidence of McLaurin having served time for either of his misdemeanor convictions.

¶ 16. In Nicholson v. State, 761 So.2d 924, 931 (¶ 30) (Miss.Ct.App.2000), this Court stated that “ ‘so long as the previous uncounseled misdemeanor conviction did not result in a sentence of imprisonment,’ ... the lower court did not err in considering the prior uncounseled misdemeanor DUI in sentencing .... ” (quoting Ghoston v. State, 645 So.2d 936 (Miss.1994)). The record supports the conclusion that McLaurin received no further jail time after having pled guilty. Pretrial incarceration is of no consequence. Nicholson, 761 So.2d at 931 (¶ 29). This issue is without merit.

IV. DID THE COURT.ERR IN NOT ALLOWING THE DEFENDANT’S JURY INSTRUCTION D-8 AND, FURTHER, IN NOT ALLOWING THE DEFENDANT TO ARGUE THE RELATION BACK OR EXTRAPOLATION THEORIES TO . THE JURY?

¶ 17. McLaurin asserts that the trial court erred in not allowing his jury instruction D-8 and further erred in not allowing him to- argue the relation back or extrapolation theories to the jury. McLau-rin’s submitted jury instruction D-8 read as follows, “The Court instructs the jury that there is no presumption that the breath test results taken in this case relate back in time to the condition of the Defendant, James Edward McLaurin, at the time of driving.”

¶ 18. McLaurin argues that the State must prove that he was intoxicated at the time of the alleged driving offense and that a defendant is entitled to broad latitude in framing his final argument to the jury. The State counters that the defense suffered no prejudice from the denial of jury instruction D-8. Instruction C-3 informed the jury that McLaurin was presumed innocent and that the State had the burden of overcoming this presumption by proving guilt beyond a reasonable doubt of every element of the crime charged. Instruction S-l stated in part that the State was required to prove beyond a reasonable doubt that the defendant did unlawfully, willfully, and feloniously drive or operate a motor vehicle while he had an alcohol concentration of .10% or more in his blood. Instruction D-7 stated that the prohibition is against driving while having a .10% or more by weight of volume of alcohol in the blood.

¶ 19. This Court’s standard of review in reviewing jury instructions is well settled. “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read.as a whole.” Collins v. State, 691 So.2d 918, 922 (Miss.1997) (citing Hickom-bottom v. State, 409 So.2d 1337, 1339 (Miss.1982)). “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. McLaurin cites no authority for his argument that instruction D-8 should have been granted. In reading the instructions submitted to the jury as a whole, the jurors were adequately instructed that McLaurin was presumed innocent and that the State had the burden to prove every element of the offense beyond a reasonable doubt, including the fact that McLaurin had a blood alcohol level of .10% or more at the time he was operating a motor vehicle.

¶ 20. In regard to MeLaurin’s closing argument, a defendant is entitled to broad latitude in framing his final arguments to the jury. Neal v. State, 451 So.2d 743, 762 (Miss.1984) (citing Gray v. State, 351 So.2d 1342, 1346-47 (Miss.1977); Johnson v. State, 416 So.2d 383, 391-92 (Miss.1982)). The defendant may not, however, “state facts which are not in evidence, and which the court does not judicially know, in aid of his evidence.” Johnson, 416 So.2d at 392. McLaurin wanted to argue that it was possible he drank immediately before driving and that the alcohol had not reached his blood stream at the time he was stopped but appeared on the breath test taken an hour later. He did not present any evidence during trial supporting this allegation, and his own admissions to the officers were that he had been drinking straight gin several hours prior to driving and then being stopped by the officers. The trial judge did not err in refusing MeLaurin’s theories during closing arguments. This issue is without merit.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE • AND SENTENCE OF FIVE YEARS TO RUN CONSECUTIVELY TO THE SENTENCE PRESENTLY BEING SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

KING, C.J., LEE, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, AND BARNES, JJ., CONCUR.