author: IRVING, J.,

text:
    Paula Ray CLAY, Appellant, v. Stephen Clinton CLAY, Appellee.
    No. 2001-CA-00889-COA.
    Court of Appeals of Mississippi.
    Feb. 4, 2003.

      Helen J. McDade, DeKalb, James A. Williams, Meridian, attorneys for appellant.
    C. Hugh Hathorn, Louisville, attorney for appellee.
    Before THOMAS, P.J., IRVING AND MYERS, JJ.
   IRVING, J.,

for the court.

¶ 1. Paula Clay filed a petition for divorce and temporary relief against her spouse, Stephen Clay. Both parties consented to the divorce on grounds of irreconcilable differences and agreed to allow the chancellor to equitably distribute liabilities and assets, as well as decide child custody and support. The chancellor divided the marital property and awarded physical and legal custody of the parties’ minor child to Stephen. Feeling aggrieved by the verdict, Paula has appealed and asserts that the trial court applied the Albright factors in a clearly erroneous manner and erred by awarding custody of the minor child to Stephen.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Stephen Clay and Paula Clay were married in May of 1996. This union was Stephen’s third marriage and Paula’s fourth. Stephen is twenty-six years older than Paula. From this marriage, one son, Brady, was born. The child was born while Stephen was still married to another woman from whom he had been separated for nearly two years. Paula has one daughter, Stephanie, from a previous marriage.

¶ 4. Stephen was first married at age seventeen. That marriage lasted twenty-eight years and produced four children. Paula was also first married at age seventeen. That marriage lasted for eight months. She then married Mark McCul-ley in 1989, and that marriage produced Stephanie. She divorced McCulley on May 7, 1993, and married her third husband, Eddie Mayo, on May 27, 1993. Mayo committed suicide in May of 1995. At the time of Mayo’s death, Paula met Stephen. During this time, Stephen was a coroner at the funeral home that conducted Mayo’s funeral.

¶ 5. In June of 1995, the two started a sexual relationship, and Paula became pregnant. Before her marriage to Stephen and while she was pregnant, Paula moved in with Stephen. They married and lived together until their separation in May of 2000.

¶ 6. During the period they were together, Stephen changed jobs nine times. At the same time, Paula worked in the store the couple owned for about a year and worked as a welder for about a year just before the separation.

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard of Review

¶ 7. The standard of review in child custody cases is rather limited. We reverse only if a chancellor is manifestly in error or has applied an erroneous legal standard. Lee v. Lee, 798 So.2d 1284, 1288(¶ 14) (Miss.2001) (citing Williams v. Williams, 656 So.2d 325, 330 (Miss.1995)). The chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each. Id. (citing Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994)). In custody matters, we, as an appellate court, shall not disturb the decisions of chancellors unless it is clear that justice and the law require us to do so. Id.

I. WHETHER THE TRIAL COURT ERRED IN ITS APPLICATION AND ANALYSIS OF THE AL-BRIGHT FACTORS

¶ 8. In child custody cases, the polestar consideration is the best interest of the child, and this must always be kept paramount. Lee, 798 So.2d at 1288(¶ 15) (citing Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994)). To help guide us to a proper determination as to custody, the court considers the following factors in determining the child’s best interests: (1) age, health and sex of the child; (2) a determination of the parent that has had the continuity of care prior to the separation; (3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent and other factors relevant to the parent-child relationship. Id. (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983)).

¶ 9. While the Albright factors are extremely helpful in navigating what is usually a labyrinth of interests and emotions, they are certainly not the equivalent of a mathematical formula. Id. Determining custody of a child is not an exact science. Id.

¶ 10. In the case before us, the chancellor made on-the-record findings for each Albright factor and obviously weighed the concerns of both parties. However, Paula contends the chancellor manifestly erred by making certain findings not supported by substantial evidence. She also argues that the chancellor failed to make findings in her favor which were supported by the evidence. Therefore, it is appropriate that we briefly revisit the chancellor’s analysis of each Albright factor to see if he committed manifest error.

(1) Physical, Mental Health, and Age of the Parents

¶ 11. In considering this factor, the chancellor observed that the age of the parents was very significant because the child was only five years old. He noted that the mother was only thirty-three while the father was fifty-nine. Therefore, the chancellor determined that the age factor favored the mother. The chancellor observed that it was questionable whether the father would remain physically able to raise the child the next sixteen years.

¶ 12. As to the physical and mental health of the parties, the chancellor found that Stephen had polyps, which were not malignant, removed from his colon and high blood pressure which is now under control. On the other hand, Paula suffered from back problems that often restricted her activity. Two witnesses gave testimony concerning their observation of Paula’s physical condition. They testified that on numerous occasions Paula appeared tired and suffered from headaches which caused her to have to lie down or take something to help remedy her condition. Photos were admitted into evidence which showed she has been overweight in the past, while at trial, she appeared significantly underweight. Some witnesses suggested she had bulimia. Paula denied this claim. Paula testified she regularly took Herbolite, drank herbal tea, and greatly restricted her diet. There was testimony that her cooking was limited, and she regularly proclaimed she did not cook. The chancellor expressed concern about placing the child with Paula if she was obsessed with dieting. The chancellor found that Paula would probably not provide the child with a proper diet and concluded that the mental health factor favored Stephen.

(2) Stability of the Home Environment

¶ 13. The chancellor found that Stephen had not made wise employment choices in that he had changed jobs with great frequency since 1996. Although Stephen claimed Paula persuaded him to make some of these changes, the chancellor noted that Stephen was twenty-six years older than Paula. Therefore, Stephen must be held responsible for his employment decisions. Obviously, the chancellor commented, these decisions were not very wise because, as a result, Stephen had lost his home. The chancellor concluded that this factor favored Paula.

(S) Age, Health and Sex of the Child

¶ 14. The chancellor found that the age of the child favored the mother, but that the sex of the child favored the father.

(4) Employment and Responsibilities of Parent

¶ 15. The chancellor proclaimed neither party had an advantage in employment because both parties had jobs which permitted them time to care for the child.

(5) Continuity of Care

¶ 16. The chancellor found that the mother had been the principal caregiver during most of the child’s life. The mother did not work from September 1996, until she started her job in 1999, except to work in the store the spouses operated together for about one year. The chancellor concluded Paula prevailed on this factor.

(6) Willingness and Capacity to Provide Primary Care

¶ 17. The chancellor did not make a finding as to which parent this factor favored. He noted that both parties professed to be willing to care for the child. However, he found some evidence that the mother might not be as willing as she represented. He explained there was evidence that (1) in 1996, Paula was not willing to get up with the child at night, (2) she would not wash the sheets after the child wet the bed, (3) in .August of 1996, she would regularly leave the child with Stephen’s daughters so she would not have to take care of him, and (4) in 1997, when Stephen and Paula worked in the store together, Stephen was the primary caregiver for the child. While the chancellor did not make an express finding as to this factor, it is clear to us from what he did say that he weighed this factor in Stephen’s favor.

(7) Parenting Skills

¶ 18. The chancellor acknowledged the difficulty of deciding the parenting skills factor. He consequently made no ruling as to which party prevailed. He found that Paula had taught Stephanie, her other child, a great deal about sex at an early age. The child’s tendency to be outspoken on the matter of sex caused one of Stephen’s daughters to keep her child away from Stephanie. On the other hand, the chancellor acknowledged that Stephen’s three grown daughters seem to have turned out really well but found it questionable as to whether Stephen could be given credit for their success. While they were growing up, Stephen worked multiple jobs. He had a difficult relationship with his youngest daughter when she was twelve following his divorce from her mother. His other daughter testified that he was more loving to Brady than he was to his daughters.

¶ 19. The chancellor finally acknowledged testimony about Brady, at age four, threatening to kill his mother and his half-sister. He explained that Brady’s behavior indicates that one of the parents was exposing him to improper guidance, and one or both of the parents lack needed parenting skills.

(8) Emotional ties

¶ 20. From the evidence presented, the chancellor could not ascertain any distinction in the emotional bond between the child and the father and the emotional bond between the child and the mother.

(9) Moral Fitness

¶ 21. The chancellor found little difference between the two parties on the issue of moral fitness. The chancellor found both attended church regularly. He also acknowledged both participated in extramarital sex which brought the child into existence. Their sexual activity occurred within weeks of the death of Paula’s third husband and while Stephen was still married to his second wife from whom he had been separated for some time. Each party blamed the other for the origination of their sexual relationship.

¶ 22. The chancellor observed that Stephen was indicted for a felony in connection with his duties as Winston County Coroner. He resigned and pled guilty to a misdemeanor in connection with these charges. The charges involved a change in a death certificate, and the testimony provided no explanation of why Stephen pled in that manner. While the chancellor may have placed some weight on Stephen’s misdemeanor conviction, we see no relevance of this conviction to the moral fitness of Stephen to serve as the custodial parent of the minor child. Nevertheless, it does not appear that this conviction substantially influenced the chancellor’s decision on this factor because the chancellor, in essence, concluded that the moral fitness factor favored neither party.

(10) Other factors

¶ 23. In considering other factors relevant to the parent-child relationship, the chancellor discussed the apparent lack of good judgment of both parents. Stephen had a sexual relationship with Paula right after her husband died and got her pregnant while he was married to another. He had changed jobs nine times in five years. He got in debt so deep that he had to consolidate his other debts with his home loan, and the payment was so high that he could not make the payment.

¶ 24. Paula, at age thirty-three, had been married four times. She married Mayo just weeks after her divorce from husband number two. She got pregnant by Stephen just weeks after Mayo died. She pushed Stephen to make frequent job changes. She participated in letting the debts get so high that the couple lost their home and van. She apparently squandered the $65,000 life insurance that she received from Mayo’s death.

¶ 25. The chancellor observed that “[t]his evidence indicated that neither had the kind of responsibility needed to make a good parent.” However, in resolving the custody issued on the evidence before him, he recited the following:

After considering these matters, the Court concludes that it is more likely that the father will live long enough to raise the child than it is that the mother will settle with one man and establish a stable home. It also appears likely that with the divorce and with the responsibility for the child, that the father will stick with his job at the church which will clearly facilitate his caring for the child. It also appears that with the mother’s addiction to dieting there is a strong likelihood that the mother would not nourish the child as well as the father. It also appears that the child’s inappropriate behavior must be attributed to the mother. With these facts, the Court concludes that custody should be awarded to the father.

¶ 26. In conclusion, it is the chancellor’s duty to weigh the evidence, and he is in a better position than this Court to judge the veracity of the witnesses and the credibility of the evidence. In reviewing the record, this Court finds that the chancellor was justified in ruling as he did. The chancellor made on-the-record findings as to every Albright factor, and there is no evidence that his decision was manifestly in error or based on an erroneous legal standard. Therefore, we affirm as to this issue.

II. WHETHER PAULA’S REQUEST FOR A NEW TRIAL ON ALL ISSUES SHOULD BE GRANTED WHERE SHE HAS MADE NO ASSIGNMENT OF ERROR CONCERNING THOSE ISSUES

¶ 27. Paula asks for a new trial on all issues. She spends considerable time reciting facts in her brief relating to the court’s equitable division of marital property. However, she fails to address or assign any error to the court’s division of property or any other issue, except that of child custody. Where an assignment of error is not discussed in the briefs, it is considered abandoned and waived on appeal. Summit v. State, 758 So.2d 1091, 1094 (Miss.Ct.App.2000). Accordingly, we conclude that Paula has abandoned all issues other than child custody.

¶ 28. THE JUDGMENT OF THE CHANCERY COURT OF WINSTON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: THOMAS, J.,

license: Public Domain

text:
    Willie Charles TOWNER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01164-COA.
    Court of Appeals of Mississippi.
    Feb. 4, 2003.

      Laurel G. Weir, Philadelphia, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Willie Towner was found guilty of the sale of cocaine and sentenced to thirty years in the custody of the MDOC. Aggrieved he asserts the following on appeal:

I. THE TRIAL COURT FAILED TO SECURE A FAIR AND IMPARTIAL JURY WHICH CAUSED A WRONGFUL CONVICTION.
II. THE COURT ERRED IN ALLOWING IMPERMISSIBLE HEARSAY TESTIMONY OVER OBJECTIONS.
III. THE COURT ERRED IN NOT PERMITTING FULL CROSS EXAMINATION OF WITNESSES AND IMPROPER REDIRECT QUESTIONS WERE PERMITTED BY THE STATE.
IV. THE COURT ERRED IN GRANTING STATE’S REBUTTAL TESTIMONY.
V. THE CASE MUST BE REVERSED BECAUSE OF ERROR REGARDING THE PROPORTIONALITY RULE.
VI. THE VERDICT OF THE JURY IS AGAINST THE OVERWHELMING WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

We affirm in part, and reverse and remand in part.

FACTS

¶ 2. Willie Towner and Alfred Wilson were arrested for sale and possession of cocaine, a Schedule II controlled substance. The buy was conducted by Agent James Ragan, Jr. of the Mississippi Bureau of Narcotics in Scott County. A pre-buy meeting was held and Ragan was provided state funds with which to purchase the narcotics, he was searched to be sure that no impropriety existed, and an audio wire transmitter was then placed on his body so that the other agents close by could hear the activities taking place. Ra-gan was followed to Towner Road by the agents where he approached Towner and Wilson. Ragan provided Wilson with five hundred twenty-five dollars and Towner supplied the cocaine. Upon receiving the money, Towner told Ragan that he still owed him twenty-five dollars for the drugs. Ragan paid the money and left.

¶ 3. Ragan met with the other agents at a post buy meeting where the drugs were turned over and later tested at the crime lab by Brandi Goodman. The evidence tested was 9.43 grams of cocaine. The audio transmission of the sale was not admitted into evidence but only listened to by the other agents working the case.

¶ 4. At trial, Towner testified that he had no conversation at all with Agent Ra-gan and furthermore knew nothing of the transaction or facts leading up to such. Wilson testified that Towner was not involved and that it was only himself who was guilty of the sale of cocaine.

I. DID THE TRIAL COURT FAIL TO SECURE A FAIR AND IMPARTIAL JURY CAUSING A WRONGFUL CONVICTION?

¶ 5. Towner asserts that the trial court made erroneous determinations that the State’s challenges were race-neutral and further states that the State should not be permitted to assert a Batson claim as it is reserved for non-State use. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

¶ 6. A defendant asserting a Bat-son challenge must show that (1) he is a member of a cognizable racial group; (2) that the prosecutor exercised peremptory challenges to excuse a venire person of the defendant’s race; and (3) that there is an inference that the venire persons were excluded on account of their race. Collins v. State, 691 So.2d 918, 926 (Miss.1997). “In sum, these components constitute the pri-ma facie showing of discrimination necessary to compel the State to come forward with a neutral explanation for challenging black jurors.” Id. The burden then shifts to the State to come forward with a race-neutral explanation for challenging the jurors. Id. However, the State’s explanation is not required to rise to the level of justification as required for a challenge for cause. Id. The pivotal question is whether the State was able to present a race-neutral explanation for each of the peremptory strikes. Determining whether a racially discriminatory motive lies under the State’s articulated reasons is left to the sole discretion of the trial judge. Id. at 926. Under Mississippi law, the State’s use of peremptory strikes against potential jurors who have family members who have been convicted of crimes is completely acceptable as a race-neutral reason and does not violate due process requirements. See Griffin v. State, 607 So.2d 1197, 1203 (Miss.1992); Benson v. State, 551 So.2d 188, 192 (Miss.1989). The trial court did not abuse its discretion in accepting the explanations tendered by the State. A trial court’s factual findings relative to a prosecutor’s use of peremptory challenges on minority persons are to be accorded great deference and such findings will not be reversed unless they appear clearly erroneous or against the overwhelming weight of the evidence. Benson, 551 So.2d at 188. Once either party has established a prima facie case of discrimination by the use of the challenges, the other party must supply reasons that are racially neutral. Lard v. State, 749 So.2d 276, 278(¶7) (Miss.Ct.App.1999).

¶ 7. The trial court conducted a very lengthy voir dire examination which made up ninety pages of the record. The trial court allowed, ad nauseam, review of the venire by both counsels and the determinations of the trial court are adjudged to lack any sign of error. This issue is without merit.

II. DID THE COURT ERR IN ALLOWING IMPERMISSIBLE HEARSAY TESTIMONY OVER OBJECTIONS?

¶ 8. Agent James Ragan and Agent Claire Gremillion both testified as to what they heard Wilson and Towner say during the drug transaction. Counsel for Towner objected numerous times citing the testimony as hearsay not under any exception under Mississippi Rule of Evidence 803. The trial judge determined that the testimony was not being offered to prove the truth of the matter asserted and therefore was not hearsay.

¶ 9. It is the customary practice, in the name of judicial economy, for an appellate court to affirm the trial court if the right result is reached even though for the wrong reason. Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993). We do not reverse where the trial court reaches the right result even when we conclude that this result was reached for the wrong reason. Booker v. State, 745 So.2d 850, 856(¶ 18)(Miss.Ct.App.1998), citing Carter v. State, 167 Miss. 331, 342, 145 So. 739, 741 (1933).

¶ 10. Agent Ragan and Grem-illion both testified to what they heard Towner say during the drug transaction. This testimony is not considered hearsay but rather it is an admission by a party-opponent under M.R.E. 801(d)(2)(A). This rule classifies admissions as non-hearsay rather than an exception to the hearsay rule. The testimony regarding Wilson and what he said to Agent Ragan would be allowed as non-hearsay under M.R.E. 801(d)(2)(A), a statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy.

¶ 11. The testimony is admissible at trial. This issue is without merit.

III. DID THE COURT ERR IN NOT PERMITTING FULL CROSS EXAMINATION OF WITNESSES AND WERE IMPROPER REDIRECT QUESTIONS PERMITTED BY THE STATE?

¶ 12. Towner asserts that the trial court erred in limiting his cross-examination of Agent Ragan and his re-direct of Wilson. The question elicited from Ragan on cross-examination, which was objected to and sustained, regarded what explanation could be given concerning why someone would not have been able to hear Towner’s voice through the transmission of the body wire. Ragan was not offered as an acoustics expert and can only testify to personal perceptions. Towner also asserts error in the trial court’s ruling allowing Ragan to testify that he saw Towner hand Wilson the drugs.

¶ 13. The admissibility and relevancy of evidence is within the discretion of the trial court and, absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal. Reynolds v. State, 784 So.2d 929, 932(¶ 7) (Miss.2001). “As long as the trial court remains within the confines of the Mississippi Rules of Evidence, its decision to admit or exclude evidence will be accorded a high degree of deference.” Johnston v. State, 567 So.2d 237, 238 (Miss.1990). Additionally, “the admission or exclusion of evidence must result in prejudice or harm, if a cause is to be reversed on that account.” Jackson v. State, 594 So.2d 20, 25 (Miss.1992).

¶ 14. It is a well-established rule that re-direct examination of a witness is generally limited to matters which were brought out on cross-examination of that witness. West v. State, 463 So.2d 1048, 1055 (Miss.1985). The trial court has broad discretion when ruling on matters brought forth on re-direct. Id. This Court may not disturb the lower court’s rulings regarding matters concerning redirect examination unless there was a “clear abuse of discretion.” Lloyd v. State, 755 So.2d 12,15 (¶ 9) (Miss.Ct.App.1999).

¶ 15. The trial court ruled on these matters and we agree with those determinations. This issue is without merit.

IV. DID THE COURT ERR IN GRANTING STATE’S REBUTTAL TESTIMONY?

¶ 16. Towner asserts that the trial court erred in allowing Agent Ragan to testify once the State had rested its casein-chief. Towner took the stand and testified that he did not sell anything to the agent and furthermore, that he had not even been present at the time or location the drugs were purchased. The trial judge noted the “obvious serious conflict in the testimony.” Agent Ragan was called back to the stand as a State rebuttal witness. Ragan testified that Towner was present at the time of the drug purchase and that Towner handed the drugs to Wilson who sold it to Agent Ragan. Towner further claims that it was error to allow the testimony of Sheriff Richardson regarding his perception that Wilson was scared and that was the reason he did not testify. However, the trial judge sustained Towner’s objection to this line of questioning and a limiting instruction was never requested.

¶ 17. The “purpose of rebuttal testimony is to explain, repel, counteract or disprove evidence by the adverse party.” Williams v. State, 539 So.2d 1049, 1051 (Miss.1989). The determination of whether evidence is properly admitted as rebuttal evidence is within the trial court’s discretion. Wakefield v. Puckett, 584 So.2d 1266, 1268 (Miss.1991). As such, we will not reverse the trial court’s decision unless the introduction of the rebuttal evidence clearly demonstrated an abuse of discretion. McGaughy v. State, 742 So.2d 1091, 1094(¶ 6) (Miss.1999). The State correctly asserts that the rebuttal testimony regarding the drug sale was admissible and that the testimony was offered to rebut falsehoods offered by the defendant about specific instances of his conduct. The determination of whether evidence is properly admitted as rebuttal evidence is within the trial court’s discretion. Wakefield v. Puckett, 584 So.2d 1266, 1268 (Miss.1991). Therefore, on appeal, we review such a ruling only for an abuse of discretion. McGaughy v. State, 742 So.2d 1091, 1093(¶ 6) (Miss.1999). Generally, the party bearing the burden of proof must offer all substantive evidence in its case-in-chief. Hosford v. State, 525 So.2d 789, 791 (Miss.1988); Roney v. State, 167 Miss. 827, 830, 150 So. 774, 775 (1933). Where, however, there is doubt as to whether the evidence is properly case-inchief or rebuttal evidence, the court should resolve the doubt in favor of reception in rebuttal if: (1) “its reception will not consume so much additional time as to give an undue weight in practical probative force to the evidence so received in rebuttal, and (2) the opposite party would be substantially as well prepared to meet it by surrebuttal” as if the testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebuttal. Smith v. State, 646 So.2d 538, 543-44 (Miss.1994)(quoting Riley v. State, 248 Miss. 177, 186, 157 So.2d 381, 385 (1963)).

¶ 18. Towner contends that this was a situation in which there was no doubt that the testimony should have been offered in the State’s case in-chief and that allowing it to be admitted in rebuttal constituted reversible error. However, after having said so, he makes no argument and offers no proof of the assertion. The trial court, on the other hand, was clear in its reasoning for finding that the testimony was proper rebuttal, and we can find no fault with that decision or any abuse of discretion.

V. WHETHER THIS CASE MUST BE REVERSED BECAUSE OF ERROR REGARDING THE PROPORTIONALITY RULE?

¶ 19. Towner contends that his sentence is disproportionate to the crime and is in violation of the Eighth Amendment of the United States Constitution. Towner also asserts, and it is true, that the trial judge made a motion asking for authority to review the sentence as he may have been too harsh.

¶ 20. As a general rule, a sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal. Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992). Generally, the imposition of a sentence is within the discretion of the trial court, and appellate courts will not review the sentence, if it is within the limits prescribed by statute. Reynolds v. State, 585 So.2d 753, 756 (Miss.1991).

¶ 21. “A court’s proportionality analysis [of a sentence] under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Solem v. Helm, 463 U.S. 277, 291, 103 S.Ct. 3001, 77 L.Ed.2d 637(1983) (writ of habeas corpus). This Court looks for guidance to the cases of White v. State, 742 So.2d 1126, 1135(¶ 32) (Miss.1999), and Davis v. State, 724 So.2d 342, 346(¶ 17) (Miss.1998), both of which involved the imposition of a maximum sentence of a first offender convicted of the sale of one rock of cocaine. In each case the Mississippi Supreme Court remanded for a review. of the sentence. Although the amount of contraband sold by Towner was more than the amount at issue in White or Davis, the first time offender status is the same. However, due to the uniqueness of this particular case, that is, a first time offender was sentenced to the maximum sentence allowed by law, the trial judge acknowledges he may have been too harsh, and the prosecuting district attorney states he has no objection to a re-sentencing hearing. We hold that the case should be remanded for a review of the sentence.

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

¶ 22. Towner asserts that there was insufficient evidence to support a guilty verdict. Towner failed to adequately address this issue in his brief by not providing any argument or authority in support of the issue. It is the appellant’s duty “to provide authority and support of an assignment.” Williams v. State, 708 So.2d 1358, 1361(¶ 12) (Miss.1998) (citing Hoops v. State, 681 So.2d 521, 526 (Miss.1996); Kelly v. State, 553 So.2d 517, 521 (Miss.1989)). Failure to cite any authority is a procedural bar, and this Court is under no obligation to consider the assignment. Weaver v. State, 713 So.2d 860, 863(¶ 17) (Miss.1997) (citing McClain v. State, 625 So.2d 774, 781 (Miss.1993)).

¶ 23. While this issue remains procedurally barred, this Court will address it. The standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence is well settled. “[Tjhis Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Dudley, 719 So.2d at 182(¶ 8). “This Court does not have the task of reweighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston v. State, 791 So.2d 273, 280(¶ 14) (Miss.Ct.App.2001). The law provides:

Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into finding of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augmented by the composite reasoning of twelve individuals sworn to return a true verdict. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution.

Id. (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)). We see no basis for doubting the verdict. This issue is without merit.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

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


text:
    Thomas BAILEY a/k/a Thomas L. Bailey a/k/a Fly, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01483-COA.
    Court of Appeals of Mississippi.
    Feb. 4, 2003.

      Darnell Felton, Clarksdale, attorney for appellant.
    Office of the Attorney General By: Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., THOMAS, and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Thomas Bailey was convicted of possession of a controlled substance, marijuana, in the Circuit Court of Coahoma County and sentenced to serve three years. Aggrieved, he asserts the following issues:

I. THE TRIAL COURT ERRED BY PERMITTING CAPTAIN GILBERT TO OFFER HIS UNDISCLOSED EXPERT IDENTIFICATION TESTIMONY ABOUT THE ODOR IN THE ROOM BEING MARIJUANA.
II. THE TRIAL COURT ERRED IN MODIFYING THE TENDERED LESSER-INCLUDED OFFENSE INSTRUCTION WHICH SERVED TO CONSTRUCTIVELY AMEND THE INDICTMENT.
III. THE TRIAL COURT ERRED BECAUSE THE OVERWHELMING WEIGHT OF THE EVIDENCE ONLY PROVED A MISDEMEANOR POSSESSION OF MARIJUANA.

Finding no error, we affirm.

FACTS

¶ 2. On September 22, 2000, Clarksdale Police Officers Lane and Read, and Captain Gilbert executed a search warrant issued for room 157 of the Days Inn located on Highway 61 outside of Clarksdale, Mississippi. Room 157 was registered to and occupied by Thomas Bailey. Captain Gilbert entered room 157 using a pass key to unlock the door. Gilbert testified that the room was full of smoke, which he recognized as burning marijuana. Bailey objected to Gilbert’s testimony about the odor. Gilbert found Bailey lying in bed smoking a cigarette which he quickly threw down. Several clear plastic zip-lock bags containing a green leafy substance were found in various places in the motel room. Photographs of the substance were taken and shown to the jury. The substance was tested with three separate tests, which according to the State’s expert from the Mississippi Crime Lab, conclusively proved that the substance was marijuana.

¶ 3. Bailey was tried in the Circuit Court of Coahoma County. At the close of the State’s case, Bailey made a motion for a directed verdict which was denied. Bailey did not choose to testify in his own defense nor did he present any witnesses. After less than an hour of deliberation, the jury returned a unanimous guilty verdict for felony possession of 31.6 grams of marijuana. Bailey was sentenced to serve three years under the supervision and control of the Mississippi Department of Corrections. On September 5, 2001, Bailey filed a motion for judgement notwithstanding the verdict, or, in the alternative, a new trial, alleging that he was guilty of no crime greater than misdemeanor possession of marijuana. The motion was denied on September 10, 2001. Bailey then perfected an appeal to this Court.

ANALYSIS

I. DID THE TRIAL COURT ERR BY PERMITTING CAPTAIN GILBERT TO OFFER HIS UNDISCLOSED EXPERT IDENTIFICATION TESTIMONY ABOUT THE ODOR IN THE ROOM BEING MARIJUANA?

¶ 4. Bailey argues that the trial court abused its discretion by permitting Captain Gilbert to testify that the odor he smelled upon entering the hotel room seemed to be marijuana. Bailey objected to Gilbert’s testimony, claiming that Gilbert’s ability to identify the odor of the smoke in the room was based upon his experience and training as a police officer and that this training made him an expert in the identification of the odors of burning matter.

¶ 5. Bailey relied on Ramos v. State, 710 So.2d 380 (Miss.1998), in which error was found in allowing an officer to testify in lay opinion as to the following: (1) the street value of marijuana; (2) that based on his “experience and training as a law enforcement officer” the hidden compartments in Ramos’ vehicle were sealed with fresh tar, which is used by drug smugglers to mask the smell of marijuana and blend with the under body of the car; (3) the marijuana was pressed into hard bricks and wrapped in duct tape, which is the normal method used by drug smugglers to smuggle; and (4) when the packages were cut open, in his opinion, the marijuana was fresh. Ramos, 710 So.2d at 387 (¶ 32). The trial court distinguished Ramos because it involved not only the contention that the marijuana smelled fresh, but that it also included specialized knowledge regarding the packaging of marijuana and its street value. Captain Gilbert, on the other hand, testified simply to what he smelled upon entering the room. The trial court felt that although Gilbert had smelled marijuana numerous times during the course of his training and working cases, his testimony did not require any experience or expertise beyond that of an average, randomly selected adult.

¶ 6. The admission of expert testimony is addressed to the sound discretion of the trial judge. Unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion, that decision will stand. Seal v. Miller, 605 So.2d 240, 243 (Miss.1992). The State asserts that Gilbert testified that Bailey-was smoking what “appeared to be a marijuana cigarette.” In the past, he had smelled burning marijuana and testified that it had a distinctive odor. When he entered Bailey’s room, he smelled that same distinctive odor. According to the State, an average, randomly selected adult would be able to identify a distinctive odor which they had smelled previously, and this does not qualify someone as an expert under M.R.E. 702.

¶ 7. Under M.R.E. 701, the testimony of a lay witness “is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to the clear understanding of his testimony or the determination of a fact in issue.” There is often a very thin line between fact and opinion. Sample v. State, 643 So.2d 524, 529 (Miss.1994). Gilbert was not asked an opinion as to whether or not the substance found inside Bailey’s room was marijuana. Instead, Gilbert was asked to describe what he experienced upon entering the room. This includes what he saw, smelled, and heard.

¶ 8. Gilbert’s testimony was based on his personal perception at the scene of the seizure, and it was helpful to determine a controverted material fact in issue, whether Bailey was in either direct or constructive possession of marijuana. The test to determine whether the opinion of a witness constitutes expert opinion testimony rather than lay opinion testimony is whether the witness possesses some experience or expertise beyond that of the average, randomly selected adult. Sample, 643 So.2d at 529. ■ Although Gilbert had the opportunity to smell burning marijuana previously during his police career, this did not make him an expert on burning plant matter. Gilbert was properly allowed to express an opinion upon his personal observation and perception of the scene itself. This included the smoke in the room, the odor of the smoke, as well as his perception of Bailey himself.

¶ 9. A trial judge enjoys a considerable amount of discretion as to the relevancy and admissibility of evidence. Unless his judicial discretion is so abused as to be prejudicial to the accused, this Court will not reverse his ruling. Shearer v. State, 423 So.2d 824, 826 (Miss.1982) (citing Page v. State, 295 So.2d 279 (Miss.1974)). “Before error can be predicated at all upon an adverse evidentiary ruling, it must appear that a substantial right of the party is affected.” Jackson v. State, 594 So.2d 20, 25 (Miss.1992). In the case at hand, the testimony was harmless because the substance found in the room, after testing, proved to in fact be marijuana.

¶ 10. This issue is without merit.

II. DID THE TRIAL COURT ERR IN MODIFYING THE TENDERED LESSER INCLUDED OFFENSE INSTRUCTION AND DID IT SERVE TO CONSTRUCTIVELY AMEND THE INDICTMENT?

¶ 11. Bailey contends that the trial court erred in modifying the tendered lesser-included offense instruction which served to constructively amend the indictment. According to Bailey, the indictment did not track the statutory language, which according to Miss.Code Ann. § 41-29-139(c)(2)(C) labels felony possession of marijuana at more than thirty grams. Instead, the indictment charged Thomas with possessing 31.6 grams. Bailey argues that a lesser-included offense instruction should have been given allowing a conviction of misdemeanor possession of marijuana if any amount less than 31.6 grams was proven to have been in his possession. This, however, would not be a correct statement of law, because it would allow the jury to find misdemeanor possession if Bailey was found to be in possession of more than 30 grams but less than 31.6 grams. A jury instruction must be supported by the evidence and be a correct statement of the law. See Perry v. State, 637 So.2d 871, 877 (Miss.1994); Dedeaux v. State, 630 So.2d 30, 33 (Miss.1993); Wilson v. State, 592 So.2d 993, 997 (Miss.1991).

¶ 12. Bailey complains about jury instructions D-4a and C-18 which dealt with the. lesser-included offense and were granted by the trial court. Bailey did not object to C-18, however, and accordingly, any defect in C-18 has been waived. Walker v. State, 729 So.2d 197, 202 (¶ 19) (Miss.1998). Bailey did object to D-4a, which was reformed from his proposed instruction. Bailey contends that D-4a seriously impaired his defense because it estopped the jury from considering any amount less than 31.6 grams as simple possession. “[T]he trial court enjoys considerable discretion regarding the form and substance of jury instructions.” Higgins v. State, 725 So.2d 220, 223 (¶ 15) (Miss.1998).

In order to prevail on a claim that the trial court’s refusal to give a requested instruction was an abuse of discretion, a defendant must show that his requested instruction was (1) a correct statement of the law, (2) hot substantially covered in the jury charges as a whole, and (3) of such importance that the court’s failure to instruct the jury on that issue seriously impaired the defendant’s ability to present his given defense.

Chatman v. State, 761 So.2d 851, 854-55 (¶ 15) (Miss.2000) (citing United States v. Davis, 132 F.3d 1092, 1094 (5th Cir.1998)). Any amount less than 31.6 grams is not simple possession. Thirty grams or less is defined as simple possession under the statute. Miss.Code Ann. § 41-29-139(c)(2)(A) (Rev.2002).

¶ 13. Bailey is correct in asserting that the trial court was misled by both the State and the defense with respect to the cut-off point for misdemeanor and felony possession. The court was informed that 30 grams or more is a felony, whereas the statute reads “more than thirty grams” is a felony. Miss.Code Ann. § 41-29-139(c)(2)(C) (Rev.2002). However, this is insignificant because no reasonable, hypothetical juror could have found from the evidence that Bailey possessed exactly 30.0 grams, no more and no less.

¶ 14. The State also argues that no reasonable, hypothetical juror could have found from the testimony and evidence that Bailey possessed any amount between 30.0 and 31.6 grams. When asked this question by the trial court, Bailey’s counsel agreed that there was no scenario where any amount between 30.0 and 31.6 grams could be found. According to the State’s drug identification expert, the marijuana was found and tested in the form of six exhibits taken from the motel room. The marijuana in the exhibits weighed 3.17 grams, 20.47 grams, 2.49 grams, 1.68 grams, 3.75 grams, and the remainder of the burning marijuana cigarette weighed .04 grams, for a total of 31.6 grams. By this testimony, only the marijuana cigarette, which Gilbert testified that he saw Bailey throw down upon his entry to the room, if subtracted from the 31.6 gram total, would lead to a result where Bailey was in possession of between 30.0 and 31.6 grams of marijuana. By virtue of the lesser-included offense instruction, the jury could have found Bailey guilty of simple possession had it not found him in possession of any of the other five weighed exhibits. The jury did not, however, and found him guilty of possession of 31.6 grams.

¶ 15. The trial court’s reformation of the jury instruction did not serve to constructively amend the indictment and deprive Bailey of a lawful defense. Bailey’s proposed instruction was not a correct statement of the law, and the trial judge was within his discretion in reforming it.

¶ 16. This issue is without merit.

III. DID THE TRIAL COURT ERR BECAUSE THE OVERWHELMING WEIGHT OF THE EVIDENCE ONLY PROVED A MISDEMEANOR POSSESSION OF MARIJUANA?

¶ 17. Bailey asserts that the trial court erred because the overwhelming weight of the evidence only proved a misdemeanor possession of marijuana. Bailey bases his argument on testimony by the State’s drug identification expert, Carol Karr, who testified that none of the tests she performed on the substance found in Bailey’s room would, on their own, conclusively identify the substance as marijuana. Bailey argues that because of this, the jury based its decision on Captain Gilbert’s testimony, which he argued above was inadmissible.

¶ 18. The standard of review-in determining whether a jury verdict is against the overwhelming weight of the evidence is also well settled. “[T]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Collins v. State, 757 So.2d 335, 337 (¶ 5) (Miss.Ct.App.2000) (quoting Dudley v. State, 719 So.2d 180, 182 (¶ 9) (Miss.1998)). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Collins, 757 So.2d at 337 (¶ 5) (citing Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Collins, 757 So.2d at 337 (¶ 5) (quoting Dudley, 719 So.2d at 182).

¶ 19. Bailey fails to take notice that Karr did testify that all three tests that she performed are a standard methodology used in crime labs across the country to test marijuana and although each test individually did not give a definitive conclusion, positive results in all three examinations did give conclusive evidence that the substance was, in fact, marijuana. The State, therefore, did not rely on Gilbert’s testimony to prove the substance was marijuana. Giving the State the benefit of all favorable inferences reasonably drawn from the evidence, the verdict was not against the overwhelming weight of the evidence.

¶ 20. This issue is without merit.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF POSSESSION OF MARIJUANA, A CONTROLLED SUBSTANCE, AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. THE SENTENCE IMPOSED IN THIS CAUSE SHALL RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, MYERS AND CHANDLER, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. GRIFFIS, J., NOT PARTICIPATING.


author: KING, P.J.,

text:
    Ronnie Dean BEARD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01849-COA.
    Court of Appeals of Mississippi.
    Feb. 4, 2003.

      John Keith Perry, attorney for appellant.
    Office of the Attorney General, by Charles W. Maris, attorney for appellee.
   KING, P.J.,

for the court.

¶ 1. Ronnie Dean Beard was convicted in the DeSoto County Circuit Court of kidnapping, rape, and armed robbery. On the rape charge, he was sentenced to a term of life imprisonment without parole as an habitual offender; he was sentenced to a term of twenty-seven years on the kidnapping charge as an habitual offender to run consecutively to the sentence imposed on the rape charge, and sentenced to a term of twenty-seven years as an habitual offender on the armed robbery charge which is to run consecutively as well. Beard has appealed and raised the following issues:

I. Whether the trial court erred by denying his motion for a mistrial.
II. Whether the trial court erred by denying his request for a judgment notwithstanding the verdict, or in the alternative a new trial.

FACTS

¶ 2. On Friday, April 24, 1998, B. Campbell was landscaping her front yard. Her then five year old son was playing in the backyard. While outside, someone (later determined to be Beard) approached Campbell from behind and placed a knife against her throat. Campbell stated that the attacker forcibly took her inside the house and demanded money. She indicated to him that she did not keep cash but offered him jewelry instead. Campbell stated that he took the jewelry and proceeded to cut off her sweatshirt, took her in a bathroom, and attempted to rape her. Unsuccessful at his attempt, he then took her into a bedroom and did in fact rape her.

¶ 3. After the incident occurred, Beard instructed Campbell to take a bath and douche herself. When Campbell informed Beard that she did not have any douche products in the house, he gave her a bottle to use. According to Campbell, she was unable to see the attacker during this time because he had pulled the shirt over her face. Beard instructed her not to tell anyone because he knew where she lived and would kill her and her son.

¶ 4. Beard warned Campbell to stay in the bathroom. He then left the house walking down the street. After Beard left, Campbell instructed her son not to leave, retrieved her .45 pistol, got into her pickup truck and proceeded to chase Beard. She saw Beard get in a white Mitsubishi Eclipse parked down the street. Campbell drove up to the car so that she was adjacent to the driver’s side window. ■ She shot into the car, after which the driver sped away.

¶ 5. Unable to stop the other driver, she returned home and called the police' on her cell phone. The police arrived and Campbell was taken to the hospital where a rape kit was collected.

¶ 6. At trial, Ernie Cleveland, an electrician who was in the area at the time of the incident, testified that he saw a white truck pull up to a white ear and that the truck’s driver started shooting at the car. He noticed that the car lost one of its hubcaps as it sped off.

¶ 7. One of Campbell’s neighbors, Brenda Lacker, testified that she saw a white car parked near her house and an unknown man who proceeded towards Campbell’s house. Later, Lacker heard gunshots and saw the white car speed out of the neighborhood.

¶ 8. Officer Aubrey Broadway, with the Olive Branch Police Department, located a hubcap on the scene which had a Ford label inside. Officer Broadway requested that other agencies be on the lookout for a white Ford Probe. However, Campbell described the vehicle as a Mitsubishi Eclipse. Officer Broadway’s information was later supplemented to include a white Mitsubishi Eclipse.

¶ 9. While investigating an unrelated case in August 1999, Alan Thompson with the Mississippi Highway Patrol interviewed Deborah Rayford who once lived with Beard. Ms. Rayford told Officer Thompson that Beard had driven a white Mitsubishi for several weeks in April of 1998. Ms. Rayford indicated that Beard had been shot during this time period and that while at her grandmother’s home she witnessed him trying to remove bullets from his body, instead of going to the hospital.

¶ 10. Based on Ms. Rayford’s information, the police obtained an address where the white car could be located. Upon executing a search warrant, the officers located the vehicle which was in fact a Mitsubishi Eclipse. Inside the driver’s door, the officers found a copper jacketed bullet, which was later determined to have been fired from Campbell’s gun. The hubcap was also determined to match the other hubcaps located on the car.

¶ 11. Beard was then arrested, and a warrant was obtained which allowed x-rays of Beard’s left leg and arm as well as the collection of blood and saliva samples. Photographs taken of Beard’s body revealed old puncture injuries to his left arm and leg.

¶ 12. At trial, Dr. Robert Smith, testified that the x-rays revealed that Beard’s left leg appeared to contain bullet fragments.

¶ 13. Samples from Campbell’s rape kit were sent to the DNA Unit of the FBI Crime Lab in Washington, D.C. Deborah Hobson, a forensic scientist with the DNA Unit of the FBI Crime Lab testified that “the source of the semen that was detected in the vaginal swabs is from Mr. Beard.”

¶ 14. Beard was convicted and sentenced to consecutive, habitual terms of twenty-seven years, life imprisonment, and twenty-seven years respectively in the custody of the Mississippi Department of Corrections on the charges of kidnapping, rape, and armed robbery.

ISSUES AND ANALYSIS

I.

Whether the trial court erred by denying his motion for a mistrial.

¶ 15. Beard contends that the trial court erred by denying his motion for a mistrial after one of the police officers made a statement that was a conclusion of fact while testifying “indicating the guilt of Defendant.” He maintains that the statement caused him to receive an unfair trial, despite the corrective action taken by the trial judge.

¶ 16. The transcript reveals that the following testimony was given by Officer Alan Thompson:

Q. All right. And did she (the suspect’s ex-girlfriend) tell you about him (the suspect) being shot?
A. Yes, she did. She told me he was shot; that she witnessed Ronnie Beard trying to extract bullets from the side of his buttocks and also his arm while Ronnie was there at her grandmother’s home.
Q. Now, after you obtained this information from Mrs. Rayford, what did you immediately know?
A. I knew that most likely Ronnie Beard was the Olive Branch rapist.
BY MR. TRAVIS: Your Honor, we’re going to object to that and ask that be stricken. That’s conclusionary in nature.
BY THE COURT: I’m going to sustain it. That will be struck and the jury is to disregard that. That’s a conclusion of fact which only you can make, not this police officer.

Subsequently, Beard made a motion for a mistrial stating:

BY MR. PERRY: Your Honor, at this time we’d like to make a motion to have a mistrial. The statement from Alan Thompson came in on the record in front of the jury, and it was highly prejudicial and inflammatory and it served no purpose, as well as testifying to the ultimate issue of the trial. He characterized Ronnie Dean Beard as the Olive Branch rapist, and such characterization, you can’t throw it into the jury box and ask the jury just to disregard it. And in light of that, we ask at this time and we think it’s only proper that the Defense move for a mistrial.

The trial court denied that motion stating:

BY THE COURT: Okay. Well, I’ll deny the motion for a mistrial and stand on the ruling that the jury was instructed to disregard; and if you want a specific instruction to go to the jury, if and when we get to deliberations, then you can have that.

¶ 17. One of the jury instructions given states in part that “[y]ou are to disregard all evidence which was excluded from consideration during the course of the trial.” However, Beard asserts that although the trial judge gave a curative instruction, the comment made was “so prejudicial that the curative instruction could not have sufficed to ensure the defendant got a fair trial.”

¶ 18. Beard relies on Vickery v. State, 535 So.2d 1371, 1380 (Miss.1988), where the supreme court held that the trial court’s curative instruction regarding inadmissible testimony given by a police officer was ineffective. In Vickery, defense counsel questioned the police officer about keys taken from the defendant when she was arrested. Over objection, the trial court allowed the officer to explain his response. The officer then stated, “[i]t’s been my experience that people involved in the drug business try very hard and they’re very good at covering their tracks. And I’m sure that this Defendant had keys to Apartment 119 Id. at 1379. After making this statement, the trial court asked the jury to “disregard any statement as to whether the Defendant had keys to this apartment as an expression of this witness’s opinion.” Id. at 1380.

¶ 19. Where an objection to such impermissible testimony is sustained and the jury is admonished by the trial court to disregard the statement, the supreme court has repeatedly held that refusal to grant a mistrial is proper. McNeal v. State, 658 So.2d 1345, 1348 (Miss.1995). The applicable standard of review for denial of a motion for mistrial is abuse of discretion. McGilberry v. State, 741 So.2d 894(¶ 32) (Miss.1999). This Court finds that there was no abuse of discretion by the trial court.

II.

Whether the trial court erred by denying his request for a judgment notwithstanding the verdict, or in the alternative a new trial.

¶ 20. Beard contends that the trial court erred by denying his request for a judgment notwithstanding the verdict, or in the alternative a new trial. He maintains that the State failed to meet its burden of proof, and that the verdict is contrary to the overwhelming weight of the evidence.

The standard of review for a denial of a judgment notwithstanding the verdict and a directed verdict are identical. The Mississippi Supreme Court has stated that in reviewing the trial court’s denial of JNOV:
[T]he sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with [the defendant’s] guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence.... We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Wash v. State, 790 So.2d 856(¶ 19) (Miss.Ct.App.2001) (citations omitted).

¶ 21. Beard asserts that the State’s proof hinged upon circumstantial evidence and that there were gaps in the chain of custody which provided ample opportunity for altering evidence and therefore produced a verdict contrary to the weight of the evidence. At trial, the court denied Beard’s motion for directed verdict based on these assertions and determined that the State had met its burden of proof required by law.

¶ 22. The test of whether there has been a proper showing of the chain of possession of evidence is whether there is any reasonable inference of likely tampering with or substitution of evidence. Williams v. State, 794 So.2d 181(¶ 10) (Miss.2001). The burden to produce evidence of a broken chain.of custody is on the defendant. Id. Beard has produced no evidence which suggests that tampering or substitution of evidence occurred.

¶ 23. Beard made trial objections as to the chain of custody of the hubcap evidence and the DNA. The trial court found, and the record reflects, that a proper chain of custody was established for each of these items.

¶ 24. With respect to the hubcap, Ernie Cleveland saw the hubcap fall off the vehicle and reported it to Officer Aubrey Broadway of the Olive Branch Police Department, who indicated that he photographed the hubcap on the scene, placed it in a bag and took it to the police department where it was placed in the evidence room. Broadway took the hubcap from the evidence room on the day he went to photograph the suspect’s car and held it beside the other wheel covers which were photographed. Broadway stated that the hubcap was maintained in either his custody or in the evidence room until it was turned over to the district attorney’s office.

¶ 25. With respect to the DNA, Deborah Hobson, a forensic scientist with the DNA Unit of the FBI Crime Lab, indicated that evidence was submitted on October 15, 1998, by Amy Winters of the Mississippi Crime Laboratory. Hobson stated that once she tested the samples from Campbell, she sent them back to Winters. On October 15, 1999, Hobson received a blood sample from Beard from Winters and followed the same procedures.

¶ 26. Because Beard’s argument is predicated upon the lack of a proper chain of custody, the finding that the chain of custody was properly ■ established, means that there is no merit to his argument. This Court affirms the ruling made by the trial court.

¶ 27. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I KIDNAPPING AND SENTENCE OF TWENTY-SEVEN YEARS; COUNT II RAPE AND SENTENCE OF LIFE; COUNT III ARMED ROBBERY AND SENTENCE OF TWENTY-SEVEN YEARS, ALL AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. SENTENCE IN COUNT I SHALL RUN CONSECUTIVELY TO SENTENCE IN COUNT II. SENTENCE IN COUNT III SHALL RUN CONSECUTIVELY TO SENTENCE IN COUNT I. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

      . Due to the nature of the offense, the victim's real name is not being used for purposes of this opinion.


text:
    William Thomas RODERICK, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CA-01933-COA.
    Court of Appeals of Mississippi.
    Feb. 4, 2003.

      Kevin Jerome Payne, Jackson, attorney for appellant.
    Office of the Attorney General, by Billy L. Gore, attorney for appellee.
   IRVING, J.,

for the court.

¶ 1. William Thomas Roderick appeals from the denial of his motion for post-conviction relief and raises two issues: (1) whether the trial court erred in failing to find that he was denied effective assistance of counsel and (2) whether the errors and omissions of the trial judge at the plea and sentencing hearing, and the denial of his post-conviction relief motion violated his constitutional rights.

FACTS

¶ 2. On October 14, 1997, Roderick entered a Sack & Save grocery store in Hattiesburg, Mississippi and shot his estranged wife, Kay Roderiek-Newell, numerous times. Roderick was indicted for aggravated assault and after retaining an attorney, executed a petition to enter a plea of guilty.

¶ 3. At the plea hearing, after Roderick was asked a series of questions, the trial judge assessed that Roderick had entered his plea knowingly, voluntarily, and intelligently. Subsequently, the trial judge sentenced Roderick to serve a term of twenty years, with eight suspended, in the custody of the Mississippi Department of Corrections. Also, he was sentenced to eight years’ post-release supervision.

¶4. Approximately two years and ten months after being sentenced, Roderick filed a petition for post-conviction relief in which he alleged that he received ineffective assistance of counsel because his trial counsel failed to inform him of the maximum and minimum sentence for aggravated assault, failed to investigate mitigating evidence, and failed to present expert mitigating testimony. Additionally, Roderick alleged the existence of material facts not previously presented or heard which would warrant the trial judge setting Roderick’s conviction and sentence aside.

¶ 5. As previously stated, the trial judge denied the requested relief without an evi-dentiary hearing, and this appeal followed.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Ineffective Assistance of Counsel

¶ 6. Roderick contends here, as he did in the court below, that his trial counsel’s performance was deficient in that counsel failed to inform him of possible defenses, failed to inform him of the correct maximum and minimum sentence that could result from an open plea, and failed to conduct a minimum investigation of the case by neglecting to interview material witnesses and by failing to fully explore the merits of any defenses.

¶ 7. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), provides the criteria by which any claim of ineffective assistance of counsel is judged. A claimant must satisfy a two prong test: (1) that his counsel’s performance was deficient, and (2) that this supposed deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. 2052. This test is reviewed under the strong but rebuttable presumption that an attorney is competent and his conduct is reasonable. Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985). The burden to prove both prongs of the test rests with the defendant. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). The application of the Strickland test is done with deference to counsel’s performance, considering the totality of circumstances to determine whether counsel’s actions were both deficient and prejudicial. Conner v. State, 684 So.2d 608, 610 (Miss.1996).

¶ 8. Roderick has failed to overcome the presumption that counsel was effective. As to his allegations that counsel failed to inform him of the minimum and maximum sentence and consequences of his plea, Roderick’s petition to enter a guilty plea specifically outlines the minimum sentence as zero and maximum as twenty years. More importantly, Roderick was specifically asked during his plea hearing whether he knew the minimum and maximum sentence for his crime:

Q: All right, and the only restriction on me is that I cannot give you more than the maximum that the law allows for that particular charge.
A: Yes, sir.
Q: Have you been advised what that is in your case?
A: Yes, sir.
Q: And what is that?
A: Zero to twenty

¶ 9. We find no merit in Roderick’s allegations that counsel failed to perform a minimum investigation to create a defense. Roderick asserts that counsel failed to investigate the effect of his prescription medication and that this omission resulted in counsel’s failure to inform him of possible defenses. Roderick provides no proof of this assertion or that this alleged failure by counsel prejudiced him. The plea petition and the transcript of the plea hearing indicate that counsel was aware that Roderick was on prescription medication and also, that counsel informed the trial judge. For example, in item number ten of the plea petition, Roderick asserted that he had an eleventh grade education and the only drugs he was taking were prescription medication. Mindful of the prescription medication that Roderick was taking, his counsel requested additional medical reports for Roderick’s pre-sentence report. Further, the trial judge noted the possible effect or relationship of the medication on Roderick’s action in the commission of the crime. During the sentencing hearing, the trial judge made the following remark to Roderick: “But you do have some things going for you. It does indicate to me that this was just kind of an impulse that may have been caused by a problem with your medication.” As already observed, this issue is wholly without merit.

2. Denial of Post-conviction Relief

¶ 10. Roderick argues that the errors and omission by the trial judge during his plea and sentencing hearing amounted to a violation of his constitutional rights. Roderick asserts that the trial judge failed to advise him of the essential elements of the crime, the statutory maximum and minimum penalty, and the consequences of the entry of the guilty plea, particularly that certain constitutional rights were waived as a result of the plea. Consequently, Roderick argues that the trial judge should not have accepted his guilty plea.

¶ 11. When reviewing a trial court’s denial of a motion for post-conviction relief, we will reverse only where the trial court’s decision was clearly erroneous or an abuse of discretion. Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999).

¶ 12. We find that all of Roderick’s allegations against the trial judge lack merit. The transcript of the plea hearing, along with the transcript of the sentencing hearing, refutes these allegations. The plea hearing transcript is replete with questions by the trial judge regarding the constitutional rights being waived, the minimum and maximum penalty and the consequences of the guilty plea. Thus, we affirm the decision of the trial court, as we find no abuse of discretion in the trial court’s denial of Roderick’s petition for post-conviction relief.

¶ 13. THE JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: McMILLIN, C.J.,

text:
    Clifton J. EPPS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-00887-COA.
    Court of Appeals of Mississippi.
    Feb. 4, 2003.

      Clifton J. Epps, (pro se), attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. Clifton J. Epps, a prisoner in the custody of the Mississippi Department of Corrections, has appealed from an order of the Circuit Court of Madison County denying his motion for post-conviction relief. In his motion, Epps asserted a violation of his right to due process when the trial court allowed a substantive amendment to the indictment returned by the grand jury. Apparently anticipating a response that this was an issue to be handled at trial and on direct appeal rather than by way of post-conviction relief, Epps alternatively alleges that he received ineffective assistance of counsel arising out of trial counsel’s failure to raise this issue prior to trial.

¶ 2. Rather than addressing the merits of Epps’ contentions, we conclude that both the circuit court and this Court are without jurisdiction to consider the merits of Epps’ motion. We, therefore, dismiss the appeal.

¶ 3. Epps was convicted of burglary of an occupied dwelling in the circuit court and, on direct appeal, his conviction was upheld by an unpublished decision of this Court handed down on May 5, 1998. Epps v. State, 723 So.2d 1247 (Miss.Ct.App.1998).

¶ 4. On November 23, 1998, Epps filed a motion in the Mississippi Supreme Court for leave to pursue post-conviction relief in the Circuit Court of Madison County. This prior authority to file in the circuit court is a statutory requirement found in Section 99-39-27 of the Mississippi Code of 1972. The motion was originally denied by the supreme court on a procedural ground; however, on Epps’ motion for clarification of that ruling, a panel of three justices of the Mississippi Supreme Court denied Epps’ petition by order entered April 6, 1999. The order appears of record in Cause No.l998-M-01629 of that court.

¶ 5. Despite that ruling, Epps filed his motion for post-conviction relief with the circuit court on December 27, 2000. The circuit court, disregarding Epps’ failure to obtain leave to proceed from the supreme court under section 99-39-27, considered Epps’ motion on the merits and denied him any relief. It is from that order that Epps has perfected this appeal.

¶ 6. This Court must be constantly mindful of its jurisdiction to proceed on any matter brought before it. This obligation extends to a duty, in the proper circumstance, for the Court to raise jurisdictional issues on its own motion. Donald v. Reeves Transport Co. of Calhoun, Georgia, 538 So.2d 1191, 1194 (Miss.1989). We have consistently held that, as to post-conviction relief motions brought after an unsuccessful direct appeal of a criminal conviction, the failure of the movant to obtain the prior permission of the supreme court to file the motion as set out in section 99-39-27 deprives the circuit court— and, necessarily, this Court — of authority to reach the merits of the motion. Lawson v. State, 748 So.2d 96(¶ 3) (Miss.1999); Watts v. State, 746 So.2d 310(¶ 2) (Miss.1999).

¶ 7. The facts here weigh more heavily in favor of dismissal than in the situations cited in the previous paragraph since this is not the typical case where the necessary prior authority was simply not sought. Rather, in this instance permission zuas sought but was affirmatively denied by the sole body vested with authority to grant it. The circuit court was without jurisdiction, in that circumstance, to consider the motion on the merits. This Court, sitting as an appellate court reviewing a decision of the circuit court, can have no greater jurisdiction than did the court below. Brown v. State, 764 So.2d 463(¶ 6) (Miss.Ct.App.2000).

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS VACATED AND THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION OF THE CIRCUIT COURT AND OF THIS COURT TO CONSIDER THE MOVANT’S MOTION FOR POST CONVICTION RELIEF. COSTS OF THE APPEAL ARE ASSESSED TO MADISON COUNTY.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: LYONS, Justice. MOORE, Chief Justice

text:
    Ex parte Darin K. SWEARINGEN. (In re Darin K. Swearingen v. State of Alabama).
    1000796.
    Supreme Court of Alabama.
    Nov. 16, 2001.
    W. Lloyd Copeland, Mobile, for petitioner.
    Bill Pryor, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for respondent.
   LYONS, Justice.

Darin K. Swearingen was convicted of burglary in the second degree, a violation of § 13A-7-6, Ala.Code 1975. The trial court sentenced him to life imprisonment upon application of the Habitual Felony Offender Act (the “HFOA”), § 13A-5-9, Ala.Code 1975. On November 27, 2000, the Court of Criminal Appeals affirmed Swearingen’s conviction and sentence, in an unpublished memorandum. Swearingen v. State, (No. CR-99-1805) 820 So.2d 172 (Ala.Crim.App.2000) (table). We granted certiorari review to determine whether the Court of Criminal Appeals erred in holding 1) that the State presented sufficient evidence to convict Swearin-gen of second-degree burglary, and 2) that Swearingen was not entitled to a new sentencing hearing.

I.

Swearingen first contends that the evidence presented at trial was insufficient to sustain a conviction for second-degree burglary. The Court of Criminal Appeals held that the State presented sufficient evidence to sustain Swearingen’s conviction. We agree with the Court of Criminal Appeals as to this holding and affirm as to that issue.

II.

Swearingen also contends that the Court of Criminal Appeals erred in holding that he was not entitled to a new sentencing hearing. At Swearingen’s sentencing hearing, the State introduced evidence indicating that, in offenses unrelated to the charged offense, Swearingen had previously pleaded guilty to two charges of third-degree burglary and two charges of stalking. Because Swearingen had prior felony convictions, the trial court applied the HFOA when it sentenced Swearingen. The record indicates that although the trial court ultimately sentenced Swearingen to life imprisonment, the court initially sentenced him to 15 years’ imprisonment, based upon the mistaken belief that Swearingen had been convicted of a Class C felony. The prosecutor pointed out that second-degree burglary is a Class B felony. The following then occurred:

“THE COURT: Wait just a minute. I’m sorry. This was a Class B felony offense. You are correct. And the Court is incorrect in the sentence. Yes, it is mandatory life sentence.
“THE COURT: All right. Let me re-sentence him, then. Mr. Swearingen, the Court sentences you to a term of life in the state penitentiary.... ”

Neither the trial court nor the parties were aware at the time of Swearingen’s sentencing hearing that the HFOA had been amended six days earlier. Before the amendment, effective May 25, 2000, the HFOA required a mandatory life sentence following the conviction for a Class B felony when the defendant had three prior felony convictions. § 13A~5-9(c)(2), Ala. Code 1975. The amendment gave the trial court the option of sentencing Swearingen to “imprisonment for life or any term of not less than 20 years.” Act No. 2000-759, § 1, Ala. Acts 2000 (effective May 25, 2000).

Swearingen timely filed a motion to vacate the sentence and to hold a new sentencing hearing so that the trial court could sentence him according to the HFOA, as amended. The trial court denied the motion. The Court of Criminal Appeals affirmed Swearingen’s sentence, noting that the trial court retained jurisdiction to modify the sentence for 30 days after the sentence was pronounced. It held that because Swearingen’s motion made the trial court aware of the fact that the HFOA had been amended, the trial court was within its discretion to refuse to modify the sentence. The Court of Criminal Appeals also concluded that where the sentence is within the statutory range, it would not overturn the trial court’s sentencing decision absent a clear abuse of discretion by the trial court.

Swearingen contends that the Court of Criminal Appeals’ decision conflicts with Ex parte Thomas, 435 So.2d 1324 (Ala.1982), in which this Court reversed a sentence of 10 years’ imprisonment and remanded the case for resentencing because in sentencing the defendant the trial court had erroneously considered his pri- or adjudication as a youthful offender. Swearingen also contends that the Court of Criminal Appeals’ decision conflicts with its decisions in McClintock v. State, 773 So.2d 1057, 1059 (Ala.Crim.App.2000), and Pickens v. State, 475 So.2d 637, 640 (Ala.Crim.App.1985). In both cases, the Court of Criminal Appeals remanded for new sentencing hearings because there was evidence indicating that the trial courts had relied upon improper information in sentencing the defendants.

In Ex parte Thomas, the defendant had been convicted of third-degree burglary; he was sentenced as a habitual offender to 10 years’ imprisonment. 435 So.2d at 1325. The trial court based the sentence upon one previous felony conviction and a youthful-offender adjudication. Id. On appeal this Court concluded .that the trial court should not have considered the youthful-offender adjudication in determining the defendant’s sentence. Id. The State argued that, although the trial court had relied on improper information — i.e., the youthful-offender adjudication — to sentence the defendant, the sentence should not have been reversed because the 10-year sentence was within the statutory range for a defendant having only one previous felony conviction. Id. This Court rejected that argument, holding instead that the defendant was entitled to a new sentencing hearing at which the trial court’s sentencing decision was based upon proper information. Id. at 1326. This Court agreed with the language of Judge Bowen’s dissent to the Court of Criminal Appeals’ opinion: “ ‘Merely because the defendant could have been sentenced to ten years does not mean he would have been if the trial judge had not considered the youthful offender conviction.’ ” Id., quoting Thomas v. State, 435 So.2d 1319, 1324 (Ala.Crim.App.1981) (Bowen, J., dissenting).

The Court of Criminal Appeals applied this rationale in Pickens v. State, supra. In Pickens, the defendant argued that he was entitled to a new sentencing hearing because the trial court had improperly relied upon a youthful-offender adjudication to enhance his sentence. 475 So.2d at 640. The State responded that the sentence should be affirmed because the sentence imposed was within the allowable range of punishment. Id. The Court of Criminal Appeals rejected this argument, relying on this Court’s opinion in Ex parte Thomas. According to the Court of Criminal Appeals, the trial judge had sentenced the defendant under the mistaken belief that life imprisonment was the mandatory sentence, when in fact there was a broad range of possible sentences that could have been imposed. Id. The Court of Criminal Appeals vacated the defendant’s sentence and remanded the cause for the trial court to conduct a new sentencing hearing. Id.

Similarly, in McClintock, supra, the Court of Criminal Appeals held that the defendant was entitled to a new sentencing hearing because the trial court had relied upon improper information in sentencing the defendant. 773 So.2d at 1059. The Court rejected the State’s argument that although the trial court had relied upon an invalid prior felony conviction to enhance the defendant’s sentence under the HFOA, the original sentence was still within the range authorized under the HFOA. Id. According to the Court of Criminal Appeals, fundamental fairness required that the cause be remanded for a new sentencing hearing, so that it might be established with certainty that the trial court exercised the discretion allowed in imposing the sentence. Id.

We agree that the result reached by the Court of Criminal Appeals in the present case is inconsistent with the rationale expressed in Ex parte Thomas, McClintock, and Pickens. There is no dispute that the trial court sentenced Swearingen under a version of the HFOA that was no longer effective. The record clearly indicates that the trial court believed that a life sentence was mandatory and that it had no discretion to sentence Swearingen to a term shorter than life imprisonment, when, in fact, a broad range of possible sentences was available.

We are unpersuaded by arguments that Swearingen’s life sentence was within the statutorily authorized range under the amended HFOA and that because the trial court retained jurisdiction to modify the sentence for 30 days it considered the amended HFOA and determined not to resentence Swearingen. Merely because life imprisonment was within the statutory range available under the amended HFOA, given the wide sentencing .range of 20 years’ imprisonment to life imprisonment available to the trial court under the amended HFOA, we cannot say that the trial court would have sentenced Swearin-gen to life imprisonment had the court applied the amended version of the HFOA. Indeed, the record reflects that the trial court sentenced Swearingen to 15 years’ imprisonment before it was erroneously informed that the HFOA mandated a sentence of life imprisonment. The trial court resentenced Swearingen to life imprisonment only after it was erroneously advised that a sentence of life imprisonment was mandatory. The trial court quite clearly expressed its view, albeit erroneous, that such a sentence was mandatory. Under these circumstances, we decline to accept the State’s argument that we should infer merely from the fact that the trial court denied the motion calling its attention to the recent amendment to the HFOA that the trial court at that time fully considered and then rejected a sentence other than life imprisonment. Fundamental fairness requires that Swearingen receive a new sentencing hearing to establish with certainty that the trial court exercised the discretion allowed under the amended HFOA. We affirm the judgment of the Court of Criminal Appeals insofar as it affirmed Swearingen’s burglary conviction. We reverse the judgment of the Court of Criminal Appeals insofar as it affirmed Swearingen’s sentence, and we remand the cause for that court to order a new sentencing hearing consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, SEE, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., concurs in part and dissents in part.

JOHNSTONE, J., concurs as to Part II and dissents as to Part I.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I dissent from the majority’s holding that the State submitted sufficient evidence at trial to sustain a conviction for second-degree burglary.

Because the majority opinion does not include the facts relevant to the suffieien-cy-of-evidence issue, I will recount them here in order to adequately express my reasons for dissenting. The Court of Criminal Appeals, in its unpublished memorandum, stated the facts in this case as follows:

“The evidence at trial tended to establish the following. Angela Humes testified that at approximately 10:30 one evening, Swearingen entered the apartment that she shared with Allison Segal through an unlocked door. According to Humes, she was upstairs in the bathroom when she heard some keys rattle. She walked out and found Swearingen at the top of the stairs. Humes testified that when she confronted Swearingen, he asked where Segal was, said he needed to talk with her, and indicated that he was going to Segal’s bedroom. Humes, uncertain whether Swearingen was a friend of Segal’s, asked him his name; he gave the name ‘Ted.’ Humes asked Swearingen to leave, and he did. Humes testified in a photographic lineup.
“Segal testified that she did not know Swearingen or anyone named Ted. (R. 110.) She further testified that she had left the apartment for only a few minutes to return a video on the evening Humes encountered Swearingen. According to Segal, when she was getting into her car to leave the apartment, a red van was parked so close to her driver’s door that she had to enter her car from the passenger’s side. When she returned to the apartment approximately 10 minutes later, the van was gone and she learned that an uninvited man had entered the apartment. A few days later, [Segal] saw the van that she believes was parked closely to her car on the night of the intrusion at her apartment complex. She got the tag number and reported it to law-enforcement officers, who determined that the red van belonged to Swearingen’s father.
“Humes and Segal testified that they did not know Swearingen and that he did not have permission to enter their apartment.
“The defense presented testimony that Swearingen was at Humes and Se-gal’s apartment complex that night, but maintained that Swearingen was not the man who had entered the apartment.”

Swearingen v. State, (No. CR-99-1805, November 27, 2000) 820 So.2d 172 (Ala.Crim.App.2000) (table). The Court of Criminal Appeals then affirmed Swearingen’s conviction for second-degree burglary under § 13A-7-6, Ala.Code 1975.

On appeal, Swearingen argues that there was insufficient evidence from which a jury could reasonably conclude that he had the intent to commit a theft in Segal’s apartment. The State argues that sufficient evidence from which to infer an intent to commit a theft may be found in Swearingen’s unlawful and unexplained presence in the apartment and bedroom and in the fact that, when confronted, he gave a false name to Humes.

Swearingen may be convicted of burglary in the second degree only if he “unlawfully enter[ed] a lawfully occupied dwelling-house with intent to commit a theft or a felony therein.” § 13A-7-6(b), Ala.Code 1975 (emphasis added). The intent-to-commit-a-theft-or-a-felony element distinguishes the crime of burglary from the crime of trespass in the first degree. Intent is, of course, a state of mind, and must usually be inferred from surrounding circumstances and the facts testified to by witnesses. McCord v. State, 501 So.2d 520, 528-29 (Ala.Crim.App.1986). This Court has held that the intent to commit a theft may be inferred from “ ‘the unexplained breaking and entering into a dwelling house in the nighttime.’ ” Popwell v. State, 480 So.2d 41, 44 (Ala.Crim.App.1985) (quoting Cliatt v. State, 348 So.2d 509, 511 (Ala.Crim.App.1977)) (emphasis omitted).

In the past, this Court and the Court of Criminal Appeals have affirmed burglary convictions in cases where the defendant did not actually commit a theft but where the defendant’s actions evidenced an intent to steal. In those cases, the jury could infer such an intent from the evidence. See, e.g., Popwell v. State, 480 So.2d 41 (a homeowner saw the defendant attempting to remove a window screen with a screwdriver); Burell v. State, 680 So.2d 975 (Ala.Crim.App.1996) (a homeowner returned to the house to see the defendant running out the back door and, after the homeowner went inside and was struck by another person in the house, the homeowner found a duffel bag filled with his property); Frazier v. State, 567 So.2d 879 (Ala.Crim.App.1990) (the defendant used a fire poker to pry open the kitchen door, walked toward the homeowner’s purse, which was lying on a table, but the defendant ran away when he saw the homeowner on the stairway); Manning v. State, 568 So.2d 327 (Ala.Crim.App.1990) (before officer found him in an automobile with weapons, ski mask, and gloves, the defendant had pounded on doors and windows of a home, had entered and had then retreated at tip of the homeowner’s 12-gauge shotgun to an automobile, the engine of which was running and the trunk open); Holmes v. State, 497 So.2d 1149 (Ala.Crim.App.1986) (the defendant removed a window screen and rummaged through some billfolds and papers in kitchen, but ran away when the homeowner yelled at him); Gaskin v. State, 53 Ala.App. 64, 297 So.2d 388 (Ala.Crim.App.1974) (the defendant looked through windows and was refused access to the house, but gained access by cutting a screen door, left bloodstains in the house, and was later found asleep in his car parked out front, with a small cut on his hand); Young v. State, 51 Ala.App. 400, 286 So.2d 76 (Ala.Crim.App.1973) (homeowner arrived home to find a door pried open, several pieces of property missing, and the defendant diving out of her window).

In all of the above cases the defendant took steps beyond merely unlawfully entering the dwelling place of another— namely, steps that indicated an intent to steal. The cases cited above involved evidence of forced entry, disturbances of property, or flight, or some combination thereof. Though such evidence is not necessary to sustain a conviction for burglary, such evidence certainly contributes to the likelihood that the defendant had the requisite intent to steal.

Unlike the cases cited above, in this case there is no evidence of forced entry, disturbance of any property, or flight; neither do we have a case of an “unexplained breaking and entering into a dwelling house in the nighttime.” Popwell, supra (emphasis on “breaking and entering” added). Swearingen entered the apartment through an unlocked door and went upstairs toward the absent tenant’s bedroom. Swearingen did not break in, he did not touch any personal property, he did not flee when Humes confronted him, and he applied no force or threat of force to anyone. He explained to Humes that he was looking for “Allison.”

The best evidence we have before us regarding Swearingen’s intent are his own words: he expressed a desire to talk to Allison Segal. This Court appears to permit the jury merely to speculate, not infer, by permitting the jury to find here an intent to steal. It is just as likely that Swearingen had an intent to talk to Segal, or to leave a secret love note, or to commit a felony. But it is the glaring lack of evidence that allows such speculation.

The significant fact is that Swearingen was unlawfully in Humes’s dwelling, which for the majority of this Court is apparently sufficient to permit a jury to infer that Swearingen had the intent to commit a theft or a felony. I believe that allowing such an inference in this case unduly stretches the language of the burglary statute and this Court’s interpretations of that statute. In future cases, the distinction between second-degree burglary (a Class B felony) and first-degree criminal trespass (a Class A misdemeanor) will undoubtedly be blurred by the majority’s holding today.

However, the majority disagrees with me and affirms Swearingen’s conviction for burglary in the second degree. Therefore, I find it necessary to address Part II of the opinion. I concur with the majority’s holding in Part II that Swearingen is entitled to a new sentencing hearing.

      . One is guilty of criminal trespass in the first degree if he or she "knowingly enters or remains unlawfully in a dwelling." § 13A-7-2(a), Ala.Code 1975.

      . Even a conviction under common-law burglary required more evidence of intent than was shown here:
      “As to the intent; it is clear, that such breaking and entry must be with a felonious intent, otherwise it is only a trespass. And it is the same, whether such intention be actually carried into execution, or only demonstrated by some attempt or overt act, of which the jury is to judge.”
      4 William Blackstone, Commentaries on the Laws of England, 227 (1769) (emphasis added).


author: SHAW, Judge.

text:
    Darin K. SWEARINGEN v. STATE of Alabama.
    CR-99-1805.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 2002.
    W. Lloyd Copeland, Mobile, for appellant.
    Bill Pryor, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

SHAW, Judge.

On the authority of Ex parte Swearin-gen, 837 So.2d 246 (Ala.2001), this cause is remanded to the trial court for it to eon-duct another sentencing hearing and to resentence Swearingen in accordance with the Supreme Court’s opinion. Due return should be filed with this Court no later that 56 days from the date of this opinion.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB, BASCHMB, and WISE, JJ., concur.

       Note from the reporter of decisions: On May 24, 2002, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: HOUSTON, Justice.

text:
    Ex parte Arria R. DOZIER. (In re Arria R. Dozier v. State of Alabama).
    1001571.
    Supreme Court of Alabama.
    Dec. 21, 2001.
    Charles Centerfit Hart, Gadsden, for petitioner.
    Bill Pryor, atty. gen., and Stephanie N. Morman, asst. atty. gen., for respondent.
   HOUSTON, Justice.

On April 20, 2001, the Court of Criminal Appeals affirmed, by unpublished memorandum, Arria R. Dozier’s convictions and sentences for discharging a firearm into an occupied vehicle and for assault in the second degree. Dozier v. State, (No. CR-99-2197) 836 So.2d 999 (Ala.Crim.App.2001) (table). In its unpublished memorandum the Court of Criminal Appeals declined to address the double-jeopardy issue raised by Dozier, because, it said, his motion asserting his double-jeopardy argument was untimely. We remand this ease for the Court of Criminal Appeals to address Dozier’s claims that his convictions and sentences for discharging a firearm into an occupied vehicle and for second-degree assault violated constitutional prohibitions against double jeopardy. We reserve judgment on the merits of the petitioner’s arguments until the Court of Criminal Appeals responds to our remand.

REMANDED.

MOORE, C.J., and SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

       Note from the reporter of decisions: On April 19, 2002, on remand from the Supreme Court, the Court of Criminal Appeals affirmed, without opinion. On May 31, 2002, the Supreme Court quashed the writ of certio-rari, without opinion.