author: MYERS, J.,

text:
    Terry PEGUES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01377-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2002.
    Certiorari Denied March 20, 2003.

      David L. Walker, Southaven, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

MYERS, J.,

for the court.

¶ 1. This is an appeal from the Circuit Court of Lafayette County of the conviction of Terry Pegues for possession of more than one ounce but less than one kilogram of marijuana with intent to sell. Pegues was sentenced to a twenty-year term in the custody of the Mississippi Department of Corrections with five years suspended. Feeling offended by his conviction and sentence, Pegues offers the following issues on appeal.

1. Whether the trial court erred in failing to sustain the appellant’s ore tenus motion to suppress the evidence seized in the Federal Express package, his home and automobile as a violation of the state and federal constitution protections against unreasonable searches and seizures.

2. Whether the evidence in this case is legally sufficient to sustain a verdict.

3. Whether the trial court erred in granting jury instruction S-2.

4. Whether the indictment returned by the grand jury was defective.

5. Whether the trial court erred in denying the appellant’s motion for a new trial.

6. Whether the trial court erred in re-sentencing the appellant after the altercation.

FACTS

¶ 2. A package from Federal Express was addressed to Kevin Brown whose address was listed as Number 8, County Road 185, Abbeville, Mississippi. The package was delivered to the address and signed for by someone other than Terry Pegues. However, Terry Pegues indicated that the person next to him at the door was Kevin Brown. The man next to him was in fact his roommate and not named Kevin Brown. The signature on the package said “Kevin Brown.”

¶ 3. After the package delivery was completed, agents were summoned to arrest Pegues. Pegues was covered only by a towel and in his bathroom at the time of his arrest. The toilet was flushed by Pe-gues just prior to law enforcement entering the room. An investigation of the sewer line resulted in the recovery of a plastic bag containing what looked to be crack cocaine. The location was secured with several agents on the scene while others went to obtain search warrants for the property.

¶ 4. While waiting for the agents to return with the warrants, Pegues allegedly volunteered that there was marijuana located in the refrigerator and the car parked outside. Neither of these locations was searched until warrants were obtained. In each location the agents found marijuana.

¶ 5. Pegues was found guilty of possession of more than one ounce of marijuana with intent to sell. After his sentencing, he refused to comply with the custodial officer’s directions and involved himself in an altercation in the courtroom. His initial sentence allowed for suspended time, but based on his behavior in the courtroom post-sentencing, the prosecution filed a motion for re-sentencing or to revoke Pe-gues’ suspended sentence.

¶ 6. Over the objection of defense counsel, the judge agreed to re-sentence Pe-gues. His initial sentence was twenty years to serve with ten years suspended. His new sentence was twenty years to serve with five suspended and five under post-release supervision. The guilty verdict, the initial sentencing and the amended sentence occurred within the same term of court. Pegues filed a motion for JNOV or a new trial and both motions were overruled.

¶ 7. We have chosen to address these issues in the order in which they would occur in the trial process.

DISCUSSION

1. Whether the indictment returned by the grand jury was defective.

¶ 8. The validity of the indictment was not brought before the circuit court to review. Therefore we cannot review this issue as it is not properly before this Court. “Because these arguments are not preserved for appeal, this court cannot reverse based upon them.” Haddox v. State, 636 So.2d 1229, 1240 (Miss.1994).

2. Whether the trial court erred in failing to sustain the appellant’s ore tenus motion to suppress the evidence seized in the Federal Express package, his home and automobile as a violation of the state and federal constitutions’ protections against unreasonable searches and seizures.

¶ 9. The trial court determines in its discretion what evidence is admissible. Muscolino v. State, 803 So.2d 1240, 1244(¶ 16) (Miss.Ct.App.2002). This Court will reverse the trial court’s decision to admit or not admit evidence only where the trial court abused its discretion. Id. When reviewing a trial court’s ruling on a suppression hearing, we must assess whether substantial credible evidence supports the trial court’s finding considering the totality of the circumstances. Price v. State, 752 So.2d 1070(¶ 9) (Miss.Ct.App.1999), citing Magee v. State, 542 So.2d 228, 231 (Miss.1989).

¶ 10. Pegues argued that the evidence seized during the searches should be thrown out because the police lacked probable cause to search the premises and the Federal Express package. However, it was Federal Express that contacted the police because several packages of increasing size were being delivered to the same address but all under different names. Different people signed for these packages thus raising the suspicions of delivery people that contraband might be contained in these packages. A drug dog was brought in to sniff the package addressed to Kevin Brown. The dog indicated there were drugs inside. That alone is probable cause to search the package even though Pegues asserts there was no testimony as to the veracity and reliability of the informant.

¶ 11. Upon review of the underlying facts and circumstances, the court found that probable cause existed for all of the warrants and denied Pegues’ motion to suppress the evidence obtained in the searches. We find no abuse of discretion was committed by the circuit court.

3. Whether the trial court erred in granting jury instruction S-2.

¶ 12. The State’s proposed instruction No. 2 reads as follows:

The defendant, Terry Pegues, has been charged in Count Two of the indictment with the crime of possession of more than an ounce of marijuana, with the intent to sell, transfer or distribute.
The State has introduced evidence regarding three separate exhibits of alleged marijuana:
1) an exhibit which according to the evidence for the State contains 451.95 grams, or approximately 15.9 ounces, of marijuana and was allegedly delivered to # 8 County Road 185, Abbe-ville, Mississippi, by Libby Lytle posing as a Federal Express Courier;
2) an exhibit which according to the evidence for the State contains 94.95 grams, or approximately 8.35 ounces, of marijuana and was allegedly recovered from a Chevrolet vehicle which was parked at # 8 County Road 185, Abbeville, Mississippi;
3)an exhibit which according to the evidence for the State contains 57.57 grams, or approximately 2.0 ounces of marijuána and was allegedly recovered from the refrigerator at # 8 County Road 185, Abbeville, Mississippi;
If you find from the evidence in this case beyond a reasonable doubt that the defendant, Terry Pegues, on or about the 11th day of January, 2002, of Lafayette County Mississippi:
1) knowingly and willfully possessed any one or more of the above three listed exhibits;
2) that any such exhibit so possessed by the defendant did contain marijuana;
3) that the defendant knew it was marijuana;
4) and that he possessed such marijuana with the intent to sell, transfer or distribute it to another;
then you shall find the defendant guilty of possession of more than one ounce of marijuana with the intent to sell, transfer or distribute.
*
If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the defendant not guilty of possession of marijuana with intent to sell, transfer or distribute.

¶ 13. “At trial, the jury should be instructed in language that tracks the indictment; however, failure of the instruction to contain this language does not necessarily render it fatally defective.” Richmond v. State, 751 So.2d 1038, 1046(¶ 21) (Miss.1999).

¶ 14. Pegues’ argument is that the language of S-2 is not equivalent to that of the indictment. Unlike the jury instruction that lists the separate groups, the indictment lumps the weight of the marijuana together the result being a seemingly sizable amount. Interestingly, each of the bundles separately weighed over one ounce. The jury instruction allows the jury to find Pegues guilty if they find that he had control over even one of the smaller groups.

¶ 15. Pegues asserts that possession of marijuana with intent was only one count of a four count indictment. Pegues was found innocent of one of the cocaine charges. Counts three, conspiracy, and four, cocaine possession with intent, of the indictment were dismissed. The instruction allows for the individual amounts of marijuana to be considered separately by the jury in order to find him guilty. Pe-gues wants all or nothing; that if he could not be found guilty of possession of all of the groups of marijuana he should not be found guilty of possessing any. The language of the indictment and the language of the jury instruction are not so far removed from one another to make this instruction fatal.

k. Whether the evidence in this case is legally sufficient to sustain a verdict and whether the trial court erred in denying the appellants motion for a new trial.

¶ 16. “If there is sufficient evidence to support a verdict of guilty, this Court will not reverse.” Beard v. State, 812 So.2d 250, 253(¶ 7) (Miss.Ct.App.2002).

There is sufficient evidence to support a verdict of guilty when there is competent and credible evidence as to each element of the offense which, when taken together with all inferences which reasonably may be drawn from the evidence, and considered in the light most favorable to the prosecution, permits a hypothetical reasonable juror to find the accused guilty beyond a reasonable doubt.

Id.; citing McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 17. Pegues alleges that the State did not prove that he had actual or constructive control over the Federal Express package and its contents because the item was addressed to a Kevin Brown and the co-defendant, Pettis, signed for it. The State alleges that Pegues “indicated by his words and actions that he was the person who actively received the package.” Testimony showed that these alleged “indications” noted as plural were really a singular motion by Pegues to the delivery person that the package was for Pettis.

¶ 18. We hold that there was sufficient evidence to support this verdict. Whether this testimony satisfied the jury is obvious by its verdict. Whether, another reasonable hypothetical jury could find as this jury did is plausible and therefore this issue is without merit.

5. Whether the trial court erred in re-sentencing the appellant after the altercation in the court room with law enforcement.

¶ 19. A judge has the power to alter or vacate a sentence until the term of court in which the sentence was given has ended; the judge has the power to do so after the term only by ruling on a motion requesting that relief that was pending when the term ended. Presley v. State, 792 So.2d 950, 953-54 (Miss.2001). Pegues was re-sentenced in response to the prosecution’s motion for re-sentencing following Pegues’ skirmish with the court’s deputies. This motion and the re-sentencing both occurred within the same term of court as the original trial and sentencing. The court acted within its power. This issue is without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY OF CONVICTION OF POSSESSION OF MORE THAN ONE OUNCE OF MARIJUANA WITH INTENT TO DELIVER AND THE SENTENCE OF TWENTY YEARS WITH FIFTEEN TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIVE YEARS SUSPENDED ON POST RELEASE SUPERVISION AND PAY $100 TO VICTIM’S COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

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


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Antoine TRIPLETT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00015-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.
    Rehearing Denied March 18, 2003.

      Ross R. Barnett, Jr., Jackson, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. On November 8, 2001, Antoine Triplett was convicted of sale of cocaine in the Circuit Court of Winston County. Triplett was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. In this appeal, Triplett raises three assignments of error. Firstly, Triplett challenges the weight and sufficiency of the evidence. Secondly, Triplett argues that he received ineffective assistance from his trial counsel. Thirdly, Triplett argues the sentence of twenty years is unconstitutionally excessive and disproportionate to the crime of sale of cocaine.

FACTS

¶ 2. On December 20, 2000, Detectives Young and Cotton, from the Mississippi Bureau of Narcotics, met informant Margaret Henderson at a predetermined location in Winston County. Henderson was to attempt to purchase illegal drugs from Antoine Triplett. The detectives gave' Henderson $270 in official state funds, an evidence bag, and a jacket containing a wire and buttonhole camera for making a video recording of the drug transaction. They searched Henderson and her vehicle to be sure there was no contraband on Henderson or in her vehicle.

¶3. Following the search, Henderson drove directly to Triplett’s trailer. The detectives followed, and parked about one mile from Triplett’s home for surveillance of the transaction. When Henderson arrived, Triplett showed her into his living room. Henderson said she had $150, and asked Triplett if she could buy an “eight ball” (an eighth of an ounce of cocaine) from him. Triplett replied' that he had an “eight ball,” and went to another room to get it. On his return, Henderson gave Triplett $150 and he handed her a package. Then, Henderson left the trailer. She put the package Triplett had given her into the evidence bag.

¶ 4. At the post-buy location, Henderson gave Detective Young the evidence bag. The detectives again searched Henderson’s car, and found no contraband. Young brought the evidence bag to the district office, secured it, and delivered it the next day to the crime lab. Testing showed that the package inside contained 2.10 grams of crack cocaine. On April 24, 2001, Triplett was indicted for sale of cocaine in violation of Miss.Code Ann. § 41 — 29—139(a)(1) (Rev. 2001).

¶ 5. At trial, Henderson identified Triplett as the person who had sold her cocaine. The State introduced the videotape, which showed the interior of a trailer and a man with braids. An exchange of cash for a package was visible, though the audio portion was unintelligible. Detective Young testified that over the monitoring wire, he heard Henderson ask for an “eight ball” before the exchange occurred. Young also testified that Henderson was not hired as an informant in exchange for forgiveness of past crimes, and that she had no criminal record. Officer Eichelber-ger, a personal acquaintance of Triplett’s, testified that Triplett was the man depicted on the tape.

LAW AND ANALYSIS

I. DID THE TRIAL COURT ERR BY DENYING TRIPLETT’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, ALTERNATIVELY, A NEW TRIAL?

¶ 6. Triplett argues he was entitled to judgment notwithstanding the verdict (JNOV). A motion for JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). A reviewing court must consider as true all credible evidence consistent with the defendant’s guilt, and the State must be given the .benefit of all favorable inferences that may reasonably be drawn from the evidence. Id. This Court may only reverse where, with respect to one or more of the elements of the offense, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987).

¶ 7. Alternatively, Triplett argues that he was entitled to a new trial. A motion for a new trial challenges the weight of the evidence, and implicates the discretion of the trial court. McClain, 625 So.2d at 781. The trial court should only grant a new trial motion when the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice. Wetz, 503 So.2d at 812. This Court, on appeal, will reverse and order a new trial only upon a determination that the trial court abused its discretion, accepting as true all evidence favorable to the State. Id.

¶ 8. Triplett supports both these arguments with the same allegations. He contends that Henderson’s status as a paid informant renders her testimony inherently unreliable. He argues that Henderson was insufficiently searched by the police and that she could have had cocaine in her possession before meeting Triplett. Triplett also argues the poor quality videotape was unreliable. Triplett’s position is that, based on these facts, a jury could not find beyond a reasonable doubt that a cocaine sale took place, or, that the facts are such that the verdict was against the overwhelming weight of the evidence.

¶ 9. Our review of the evidence indicates that Triplett’s contentions are without merit. The State presented credible evidence on every element of sale of cocaine from which a reasonable jury could conclude a sale occurred; therefore, the evidence was legally sufficient. The verdict was not against the overwhelming weight of the evidence. It is the role of the jury to weigh conflicting evidence and evaluate the credibility of witnesses. Conley v. State, 790 So.2d 773, 807 (¶ 138) (Miss.2001). At trial, Henderson testified as an eyewitness to the cocaine sale. Detective Young testified that, via the monitoring wire, he heard Henderson initiate the sale. The jury viewed the videotape and it is reasonable to conclude the jury determined Triplett was the person who gave Henderson the “eight ball.” Triplett offered no rebuttal evidence. There is no merit to Triplett’s arguments regarding weight and sufficiency of the evidence.

II. DID TRIPLETT RECEIVE INEFFECTIVE ASSISTANCE FROM TRIAL COUNSEL?

¶ 10. Triplett argues that trial counsel failed to provide effective and adequate representation. He cites six alleged errors of trial counsel, and argues these errors meet the two-part test for ineffective assistance of counsel from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, the defendant must show 1) that counsel’s performance was deficient, and 2) that the deficiency prejudiced the defendant. Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985). There is a strong but rebuttable presumption that counsel’s decisions were sound trial strategy. Id. at 969. To overcome the presumption, the defendant must show that but for counsel’s deficiency, a different result would have occurred. Id. at 968. The reviewing court must examine the totality of the circumstances. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).

¶ 11. Triplett’s first complaint is that trial counsel made no effort to ascertain the identity of a second informant, who, according to the State’s discovery, was present at the pre- and post-buy meetings. However, Triplett has not demonstrated how counsel’s investigation of the unnamed informant would have changed the result of trial. For counsel’s failure to investigate to constitute ineffective assistance of counsel, a defendant “must [ ] state with particularity what the investigation would have revealed and specify how it would have altered the outcome of trial.” Cole v. State, 666 So.2d 767, 776 (Miss.1995).

¶ 12. Triplett’s second argument is that he was prejudiced by trial counsel’s decision to forego jury polling upon announcement of the verdict. The record shows that the jury foreperson announced the jury’s unanimous verdict, and trial counsel stated that polling was unnecessary. There is no reason to believe the outcome of trial would have been different had the jury been polled. Considering the totality of the circumstances, we cannot say that trial counsel’s decision to forego jury polling was deficient performance that prejudiced Triplett. Frierson v. State, 606 So.2d 604, 608 (Miss.1992).

¶ 13. Triplett’s third complaint is that counsel neglected to request a presentencing investigation. The failure to request a presentencing report, in itself, is not reversible error. Wash v. State, 807 So.2d 452, 459 (¶ 27) (Miss.Ct.App.2001). Triplett does not state that mitigating evidence was present that a presentencing investigation would have revealed, and thus has not demonstrated how the outcome would have been different had counsel requested a presentencing investigation. Id.

¶ 14. Triplett’s next complaint is that counsel failed to offer meaningful mitigating evidence at sentencing. Triplett’s counsel stated that Triplett had “a lot of redeeming factors” and that he had worked for “months, if not years.” Clearly, this was an effort at mitigation, and Triplett has not demonstrated prejudice by presenting this Court with any other evidence that counsel could have offered in mitigation. Day v. State, 818 So.2d 1196, 1201 (¶ 18) (Miss.Ct.App.2002).

¶ 15. Next, Triplett argues that he was prejudiced by trial counsel’s failure to meet appellate counsel at a hearing on the post-trial motion for JNOV, or, alternatively, a new trial. Triplett alleges that, at the meeting, trial counsel was to inform appellate counsel about “the facts of the case.” Triplett fails to specify what facts remained unknown to appellate counsel, or how Triplett was prejudiced. We can speculate that knowledge of “the facts” may have been significant for argument on the motion; however, as demonstrated above, Triplett suffered no prejudice because he was not entitled to a JNOY or a new trial. Price v. State, 749 So.2d 1188, 1199 (¶¶ 37-38) (Miss.Ct.App.1999).

¶ 16. Finally, Triplett argues he was prejudiced by trial counsel’s failure to timely file a motion for reduction of sentence. Triplett has not shown he was deserving of a reduction in sentence; therefore, he has failed to demonstrate prejudice. Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985).

¶ 17. Since Triplett has shown neither deficiency nor prejudice, his claim of ineffective assistance of counsel is without merit. Id.

III. WAS TRIPLETT’S SENTENCE UNCONSTITUTIONALLY EXCESSIVE?

¶ 18. Triplett argues that his sentence constitutes cruel and unusual punishment prohibited by the Eighth Amendment. He argues that his sentence of twenty years is cruel and unusual because it is grossly disproportionate to the crime of sale of cocaine. As a general rule, this Court will not disturb a sentence that is within the statutory limits. Davis v. State, 724 So.2d 342, 344 (¶ 11) (Miss.1998). However, when a threshold comparison of the crime to the sentence leads to an inference of gross disproportionality, the reviewing court will conduct a proportionality analysis using three factors from Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Hoops v. State, 681 So.2d 521, 538 (Miss.1996). The three factors are 1) gravity of the offense and the harshness of the penalty; 2) sentences imposed on other criminals in the same jurisdiction; and 3) sentences imposed for the commission of the same crime in different jurisdictions. Solem, 463 U.S. at 292, 103 S.Ct. 3001. Triplett has submitted the federal sentencing guidelines as support for his argument under the third Solem factor.

¶ 19. The legislature has prescribed strict penalties for drug offenders in response to public concern about the drug problem. Stromas v. State, 618 So.2d 116, 128 (Miss.1993). The statutory-maximum sentence for sale of cocaine is thirty years and a one million dollar fine. Miss.Code Ann. § 41-29-139(b)(1) (Rev. 2001). Triplett’s sentence of twenty years is well within the statutory maximum, and “we have never found a maximum penalty in a drug case ... to be cruel and unusual punishment.” Herring v. State, 691 So.2d 948, 958 (Miss.1997); see Weatherspoon v. State, 816 So.2d 412 (Miss.Ct.App.2002). Our threshold comparison of the crime to the sentence yields no inference of gross disproportionality. Thus, we do not reach the extended proportionality analysis from Solem, and need not consider Triplett’s argument regarding the federal sentencing guidelines.

¶ 20. Triplett also argues the trial judge abused his discretion by wholly failing to exercise discretion in sentencing, and that he is entitled to relief under White v. State, 742 So.2d 1126 (Miss.1999). In White, the defendant was convicted of sale of cocaine within 1,500 feet of a church. Id. at (¶ 1). The trial judge doubled White’s penalty to sixty years under a discretionary statutory enhancer. Id. at (¶ 34). The Supreme Court remanded the case for resentencing, finding that, by sentencing White to the maximum penalty without any justification from the record, the trial judge wholly failed to exercise discretion. Id. at (¶ 46). Since White, this Court will remand for resentencing when the trial judge imposes the maximum penalty under a discretionary sentencing enhancer without justification for the harsh sentence from the record. White v. State, 761 So.2d 221, 229 (¶¶ 42-43) (Miss.Ct.App.2000).

¶ 21. The case sub judice is distinguishable from White. Unlike White, Triplett received ten years less than the maximum, and cannot complain that the trial judge arbitrarily imposed the harshest penalty available. Triplett argues that the explanation provided by the trial judge at sentencing was inadequate, and that White obligates trial judges to justify every sentence imposed. Triplett is incorrect. The trial court only must justify sentences that appear harsh or severe for the charge, such as the one imposed in White. Id. at 229 (¶ 40). This Court has explained “that the broad discretion in sentencing matters should not be taken away from the courts merely because no justification was presented for the particular sentence.” Id. (citing Davis v. State, 724 So.2d 342, 344 (¶ 11) (Miss.1998)). Triplett’s argument is without merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF WINSTON COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND BRANTLEY, JJ„ CONCUR.


author: THOMAS, J.,

text:
    Russell Erik BOLER, a/k/a Russell Bolar, Appellant, v. Barbara BAILEY, Christopher Epps and Robert Johnson, Appellees.
    No. 2002-CP-00838-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.
    Russell Erik Boler (Pro se), attorney for appellant.
    Office of the Attorney General by James M. Norris, attorney for appellees.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court:

¶ 1. Boler was convicted in 1993 of armed robbery and sentenced to twenty years in the custody of the Mississippi Department of Corrections, with ten of those years being mandatory. On May 11, 2000, Boler received a rules violation report for escape and as a result of the rules violation he lost all of his projected earned time. Aggrieved he asserts the following:

I. THE LOWER COURT ERRED IN DISMISSING THE APPELLANT’S CLAIM THAT HIS SENTENCE HAS BEEN UNLAWFULLY LENGTHENED.
II. THE LOWER COURT ERRED IN DISMISSING THE APPELLANT’S PETITION WITH PREJUDICE BASED UPON MISSISSIPPI CODE ANNOTATED 47-5-805 AND WITHOUT A MEANINGFUL REVIEW OF THE CONDITIONS WHICH CLEARLY WOULD CONSTITUTE EXCUSABLE NEGLECT ALLOWANCE.

FACTS

¶ 2. Russel] Boler pled guilty to armed robbery and was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. Pursuant to Miss.Code Ann. § 47-7-3(l)(d), Boler was required to serve at least ten of his sentenced twenty years in prison by mandate. Regarding the remaining ten years, Boler would be eligible for parole or any other early release once the mandatory portion of his sentence was served.

¶ 3. In 1996, Boler received two rule violation reports. One was for disobeying an order of a staff member and the other was for attempting to escape. As a result of these rule violations, Boler lost all of his earned time credit. Boler’s motion for post-conviction relief was dismissed as time barred.

I. DID THE LOWER COURT ERR IN DISMISSING THE APPELLANT’S CLAIM THAT HIS SENTENCE HAS BEEN UNLAWFULLY LENGTHENED?

¶ 4. Boler contends that since he was not eligible, under the statute, to accrue earned time while serving the mandatory portion of his sentence, then pursuant to Miss.Code Ann. § 47-5-139, he had no earned time to forfeit and therefore his sentence has been lengthened as he is not able to receive any earned time for the remaining ten years of his sentence, which he was originally eligible to receive. Although the trial court dismissed Boler’s petition as time barred we will address his claim of an unlawfully lengthened sentence in as much as if his assertions were true the time bar would be immaterial.

¶ 5. As required by Miss.Code Ann. § 47-5-138(1) Boler’s time sheets gave a conditional release date which is determined by subtracting his eligible earned time allowance on the non-mandatory portion of his sentence from the term of that non-mandatory portion. Specifically, he was eligible for five years of earned time, which was reached by computing fifty percent of his ten year non-mandatory sentence. Miss.Code Ann. § 47-5-139(3), in pertinent part, states:

“All earned time shall be forfeited by the inmate in the event of escape and/or aiding and abetting an escape. The commissioner may restore all or part of the earned time if the escapee returns to the institution voluntarily, without expense to the state, and without act of violence while a fugitive from the facility.”

Miss.Code Ann. § 47-5-139(3) (Rev.2000).

¶ 6. Miss.Code Ann. § 47-3-139(1)(e) states that an inmate is not eligible for the earned time allowance if he “has not served the mandatory time required for parole eligibility for a conviction of robbery or attempted robbery with a deadly weapon.” Earned time may not be accrued on a mandatory sentence for use at the end of that sentence. Williams v. Puckett 624 So.2d 496, 499 (Miss.1993). The legislature specifically stated that a prisoner would sacrifice all earned time upon attempted escape. Miss.Code Ann. § 47-5-139(3) (Rev.2000). Reading this section with Williams v. Puckett, it is obvi-eras that the legislative intent was to forfeit all earned time available at any time under the conviction of the prisoner.

¶ 7. Boler’s contentions are that since he was not eligible to accrue earned time at the time of his attempted escape, then as he reads the statute, he had no earned time to be forfeited. Based on his logic, an inmate serving a portion of his sentence mandatorily could break as many rules as he/she wanted to and participate in as many escapes as possible without any punishment at all. That would leave the statute inapplicable to any inmate who has not served the mandatory portion of their sentence. This is surely not what the legislature meant by “earned time shall be forfeited” as stated in the statute. This issue is without merit.

II. DID THE LOWER COURT ERR IN DISMISSING THE APPELLANT’S PETITION WITH PREJUDICE BASED UPON MISSISSIPPI CODE ANNOTATED 47-5-805 AND WITHOUT A MEANINGFUL REVIEW OF THE CONDITIONS WHICH CLEARLY WOULD CONSTITUTE EXCUSABLE NEGLECT ALLOWANCE?

¶ 8. Boler argues that the statute limiting his appeal period in which to file to thirty days does not apply to this action because he has not asked for damages. He further states that if the time limit is applied to his motion, then the thirty day period to file should be overlooked due to excusable neglect and he should be allowed to proceed with his action.

Miss.Code Ann. § 47-5-807 expressly provides for the right of judicial review as follows: “Any offender who is aggrieved by an adverse decision rendered pursuant to any administrative review procedure under Sections 47-5-801 through 47-5-807 may, within thirty (30) days after receipt of the agency’s final decision, seek judicial review of the decision.” This right is limited by a preceding section, 47-5-803, which provides that “[n]o state court shall entertain an offender’s grievance or complaint which falls under the purview of the administrative review procedure unless and until such offender shall have exhausted the remedies as provided in such procedure.”

Edwards v. Booker 796 So.2d 991, 995-96(¶ 20) (Miss.2001) (emphasis added).

¶ 9. Section 47-5-807 grants to offenders the right to judicial i-eview, so long as it is brought within thirty days of receipt of the agency’s decision. The statute does not prescribe that this time limit applies only to actions for damages, but rather to any action appealed from an administrative proceeding. Sections 47-5-801 through 47-5-807 provide that an inmate may challenge an adverse decision of the classification committee, so long as he has exhausted all administrative remedies and has brought the petition within thirty days of receipt of the agency’s final decision. Edwards v. Booker 796 So.2d at 996(¶ 22).

¶ 10. In Boler’s argument that his untimeliness should be excused due to excusable neglect he cites to Federal Rule of Bankruptcy Procedure Rule 9006. This does not support his contention. Boler failed to present any evidence that he made an attempt to meet the thirty day deadline. Mississippi Code Annotated Section 47-5-807 (Rev.2000) states that “any offender who is aggrieved by an adverse decision rendered pursuant to any administrative review procedure ... may, within thirty (30) days after receipt of the agency’s final decision, seek judicial review of the decision.” See Edmond v. Anderson, 820 So.2d 1, 2(¶ 7) (Miss.Ct.App.2002). Just as in Edmond v. Anderson, no evidence was presented to support the contention that the untimely filing was and should be excusable. This issue lacks merit.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DENYING POST-CONVICTION RELIEF WITH PREJUDICE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


text:
    Elaine HOPKINS, individually and on behalf of her minor children, Ashley Hopkins and Thomas Hopkins, Jr., Appellant, v. Brad Paul SCHAEFFER, Appellee.
    No. 2002-CA-00637-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.
    Ramel Lemar Cotton, Precious Tyrone Martin, Jackson, attorneys for appellant.

      Philip W. Gaines, Juliette Veronica Wilson, Jackson, attorneys for appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court:

¶ 1. Elaine Hopkins brought a personal injury suit on behalf of herself and her children for injuries sustained in an automobile accident with Brad Schaeffer. The jury returned a verdict in favor of Schaef-fer. Aggrieved she asserts the following:

I. THE LOWER COURT ERRED IN DENYING HOPKINS’ MOTION FOR JNOV, OR IN THE ALTERNATIVE A NEW TRIAL.

Finding no error, we affirm.

FACTS

¶ 2. On August 17, 1996, Elaine Hopkins was taking her son to football practice on or near the campus of Mississippi College. She traveled east on Highway 80 with her two children accompanying her. Brad Schaeffer was leaving the Mississippi College campus accompanied by his father. The two men were dropping off belongings to Brad Schaeffer’s brother at his dormitory and were proceeding to find a parking place near campus.

¶ 3. Instructed by a traffic officer, Schaeffer turned left from Capitol Street onto Highway 80 East. As he did this, Hopkins was traveling toward the intersection and at some point after Schaeffer turned onto Highway 80 and Hopkins passed the Highway 80 and Capitol Street intersection a collision occurred between the two vehicles. The facts surrounding the collision are in conflict between the two parties.

¶ 4. Hopkins asserts that Schaeffer pulled onto Highway 80 without allowing enough space between his vehicle and the vehicle traveling toward the intersection, hers. Schaeffer asserts that ample space was provided and that the evidence shows that Hopkins was in the process of making an illegal turn and it was her actions which caused the collision. The facts being in dispute between the parties as to what occurred, the question of which story was supported by the evidence is for the jury to determine.

I. DID THE LOWER COURT ERR IN DENYING HOPKINS’ MOTION FOR JNOV, OR IN THE ALTERNATIVE A NEW TRIAL?

¶ 5. Hopkins argues that the trial court erred in failing to grant a new trial or JNOV because the verdict was against the overwhelming weight of the evidence. Schaeffer submits that the jury was properly allowed to consider the question and returned a verdict in favor of Schaeffer as the facts in conflict were determinations for the jury and only upon those determinations could liability be determined. It is well settled in Mississippi case law that questions of fact are clearly for the jury. White’s Lumber and Supply Co. v. Collins, 186 Miss. 659, 660, 192 So. 312, 313 (1939).

¶ 6. “The standard of review for denial of a judgment notwithstanding the verdict and a directed verdict are identical.” American Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss.1995) (citing Sperry-New Holland v. Prestage, 617 So.2d 248, 252 (Miss.1993)). We are required to consider the evidence in the light most favorable to the non-moving party, and if the facts are so overwhelmingly in favor of the moving party that a reasonable juror could not have agreed with the verdict at hand, we must reverse. Sperry-New Holland, 617 So.2d at 252. If there is substantial evidence, however, in support of the verdict, such that a reasonable person may have reached different conclusions, we must affirm. Id. In regard to a motion for a new trial, this decision is within the sound discretion of the trial judge. Green v. Grant, 641 So.2d 1203, 1207 (Miss.1994). A motion for new trial should only be granted when the entire evidence, viewed in the light most favorable to the non-moving party, leaves the trial judge with a “firm and a definite conviction that the verdict, if allowed to stand, would work a miscarriage of justice.” Id. That is not the case here.

¶7. Due to the conflicting facts presented by both sides at trial, the entire case hinged on the jury’s determinations, that is, which rendition of facts the jury believed occurred. Based on these facts the jury determined that Schaeffer was not liable for the damages of the collision. This issue is without merit.

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

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


text:
    Tony Earl JACKSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01993-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.

      John Keith Perry, attorney for appellant.
    Office of the Attorney General, by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Tony Earl Jackson was convicted in the Circuit Court of DeSoto County of statutory rape and sentenced to forty years in the custody of the Mississippi Department of Corrections. Aggrieved, he asserts the following issue on appeal:

I. THE TRIAL COURT ERRED IN DENYING JACKSON’S MOTION TO PREVENT THE STATE’S WITNESS FROM GIVING CUMULATIVE TESTIMONY ON MATTERS PREVIOUSLY ADDRESSED BY THE SAME WITNESS.

Finding no error, we affirm.

FACTS

¶ 2. On May 24, 2001, the Hernando Police Department received a call from the grandmother of the victim. Officer Lee Hodge interviewed the grandmother and found that Tony Jackson had been hanging around their home and that she was concerned that Jackson was having an inappropriate sexual relationship with the victim, which had begun when she was eleven years old. Officer Hodge also interviewed the victim, who confirmed that she had a sexual relationship with Jackson, who was in his twenties at the time.

¶ 3. Based on his investigation, Officer Hodge determined that several of the sexual incidents happened in Memphis and one happened in DeSoto County. Hodge then contacted DeSoto County Sheriffs Department Officer Josh Anderson to investigate the allegations since the incident occurred in the county rather than the city. Officer Hodge interviewed Jackson about the incident. The testimony at trial over what was said during this conversation is in dispute. Officer Hodge testified that Jackson freely gave information and voluntarily confessed to his sexual relationship with the victim. Jackson, however, testified that Hodge came to talk to him and told him certain facts about the alleged relationship and that he reiterated them to the officer because he was scared and wanted to get back to work and on with his life. Officer Anderson also talked with Jackson and got a full confession, including a statement that he had consensual sex with the victim four or five times and that it happened several years back.

ANALYSIS

I. DID THE TRIAL COURT ERR IN DENYING JACKSON’S MOTION TO PREVENT THE STATE’S WITNESS FROM GIVING CUMULATIVE TESTIMONY ON MATTERS PREVIOUSLY ADDRESSED BY THE SAME WITNESS?

¶ 4. Jackson asserts that the trial court erred in denying his motion to prevent the State’s witness from giving cumulative testimony in rebuttal on matters previously addressed by the same witness. During the State’s case in chief, the State used testimony by Officers Hodge and Anderson to show that the defendant had engaged in sexual intercourse with the victim when she was only eleven years old. This included testimony by the law enforcement officers that Jackson had admitted to having sex with the victim but that it was consensual. When Jackson took the stand in his defense, he implied that the officers simply made him repeat the facts they presented to him and he denied having sex with the victim.

¶ 5. In rebuttal, the State countered this assertion by recalling Officer Hodge and precisely asking if he gave Jackson the facts or if Jackson volunteered them on his own. Hodge stated clearly on rebuttal that he did not provide details to Jackson but that Jackson provided them on his own. Also, the State played a tape of the interview on rebuttal where Jackson makes no denial of having sexual intercourse with the victim but instead admits repeatedly to having had sex with her.

¶ 6. The determination of whether evidence is properly admitted as rebuttal evidence is within the trial court’s discretion. Ruffin v. State, 736 So.2d 407, 409(¶ 10) (Miss.Ct.App.1999) (citing Powell v. State, 662 So.2d 1095, 1098-99 (Miss.1995)). 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-in-chief 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 surre-buttal 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)).

McGaughy, 742 So.2d at 1094(¶ 12).

¶ 7. The trial court was presented with the issue at trial and ruled all the evidence would be proper rebuttal. Rebuttal was precise and did not bring undo attention to the facts or to repeating the State’s case in chief. The trial court did not abuse its discretion in denying Jackson’s motion to prevent the State from offering its rebuttal evidence. This issue is without merit.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


author: IRVING, J.,

text:
    In the Matter of the ESTATE OF Walter HARRIS, Q.C. (Quincy Curtis) Harris, Monzola Harris and Barbara Harris, Appellants v. Clinton Harris, Verleyria Harris Harrell, and Barbara Harris Marion, Appellees.
    No. 20010-CA-01570-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.

      Regan S. Russell, New Albany, for appellants.
    Thad J. Mueller, New Albany, for appel-lees.
    Before THOMAS, P.J., IRVING and MYERS, JJ.
   IRVING, J.,

for the Court:

¶ 1. Quincy Curtis Harris filed a complaint in the Chancery Court of Union County against Clinton Harris, Verleyria Harris Harrell, Barbara Harris Marion, Monzala Harris, and Barbara Harris. In the complaint, Quincy sought a determination of the heirs of Walter Harris and Vaughn Harris, a partition of certain land owned by the Estate of Walter Harris, and an accounting for rents from Clinton Harris. Clinton Harris, Verleyria Harris Harrell and Barbara Harris Marion (the Harrises) countered with an answer and motion to dismiss in which they affirmatively asserted that the relief sought was barred by an agreement executed by Quincy, Monzola, Barbara, and the Harrises in 1977. The trial court agreed and granted their motion to dismiss.

¶ 2. Feeling aggrieved by the court’s decision, Quincy, joined by Monzola and Barbara Harris, appeals and asserts the following issues: (1) whether the chancellor erred when he found that the contractual intent of the parties was to create a life estate and (2) whether the contractual provision as interpreted by the chancellor created an impermissible restraint on alienation.

¶ 3. Finding no reversible error in the chancellor’s determination that the contractual intent of the parties to the agreement was to create a life estate and that no impermissible restraint on alienation existed on the land, we affirm.

FACTS

¶ 4. Walter Harris died intestate on April 18, 1976; he was survived by six children, Joe Willie Harris, Quincy Curtis Harris, Verleyria Harris Harrell, Vaughn Harris, Barbara Harris Marion, and Clinton Harris. Upon Walter’s death, each of his children obtained an undivided one-sixth interest in 160 acres located in Union County, Mississippi, and in 60 acres located in Benton County, Mississippi.

¶ 5. Joe Willie Harris died single, intestate, and without children on February 11, 1988, thereby increasing the remaining heirs’ interest to an undivided one-fifth. Vaughn Harris died intestate on June 26, 1991. He was survived by his wife, Mon-zola Harris, and his daughter and only child, Barbara Harris, with both sharing Vaughn’s one fifth interest.

¶ 6. Clinton Harris lived his entire life and raised his two sons on the property in the family home, originally built by Walter and his brother during the 1920s. Walter had lived with and was cared for by Clinton during his later years until his death in 1976. Clinton also cared for his brother Joe, who was physically handicapped, until Joe’s death in 1988. The remaining heirs of Walter lived in Michigan and Illinois.

¶ 7. Approximately a year after Walter’s death, Walter’s surviving heirs, including Quincy Harris, executed an agreement in which they acknowledged that Walter’s estate had not been administered and that they desired to agree among themselves as to the disposition and handling of Walter’s property.

¶ 8. Following the execution of the agreement, Clinton and his family continued to live on the property rent free pursuant to the terms of paragraph three of the agreement. In consideration for the heirs’ agreement not to divide “the estate at this time” and granting Clinton “the full use and possession of the house and grounds and all cultivatable land,” Clinton agreed to “protect the interests of the remaining heirs in the house and land.” Paragraph six provided that each of the heirs “shall be responsible for the payment of one-sixth of the taxes on the land.... ”

¶ 9. Until 1998, the heirs shared payment of the taxes. In 1998, Quincy did not pay his share and, in-1999, made a partial payment of $150. The balance of the 1998 and 1999 taxes, and all of the 2000 taxes, were paid by Clinton, Barbara, and Ver-leyria.

¶ 10. On August 4, 2000, Quincy filed the complaint, and the Harrises filed an answer and the motion to dismiss referred to earlier in this opinion.

¶ 11. The chancellor ruled in favor of the Harrises and dismissed the complaint. In his order of dismissal, the chancellor found that Quincy and the Harrises were bound by the July 6, 1977 agreement, which gave Clinton “the equivalent of a life estate in the subject property,” thereby barring an action for partition during Clinton’s lifetime.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 12. Questions concerning the construction of contracts are questions of law that are committed to the court rather than questions of fact committed to the fact finder. Miss. State Highway Comm. v. Patterson Enters., Ltd., 627 So.2d 261, 263 (Miss.1993). Appellate courts review questions of law de novo. Seymour v. Brunswick Corporation, 655 So.2d 892, 895 (Miss.1995). “The initial question whether a contract is ambiguous is a matter of law.” Lamb Const. Co. v. Town of Renova, 573 So.2d 1378, 1383 (Miss.1990) (citing Bryant v. Cameron, 473 So.2d 174, 179 (Miss.1985)). The subsequent interpretation of the ambiguous contract presents a finding of fact which is reviewed on appeal under a substantial evidence/manifest error standard. Id.

I. WHETHER THE CHANCELLOR ERRED BY FAILING TO CONSIDER THE TOTALITY OF THE EVIDENCE OF THE PARTIES’ CONTRACTUAL INTENT EVIDENT UPON THE FACE OF THE INSTRUMENT

¶ 13. Quincy argues that the inclusion of the words “at this time” in the agreement evidences the parties’ intent to fore-go division of the subject property “at the time of execution of the contract” only, not for the duration of Clinton’s life. Moreover, Quincy argues that “the chancellor, [by relying upon and emphasizing] paragraph three of the agreement, failed to fully consider the evidence of the parties’ contractual intent and completely [ignored] the parties’ expressed intent with regard to the duration and effect of the agreement.” He further explains that while the scope of the rights granted to Clinton Harris may have been expressed in paragraph three of the agreement, this paragraph describes only the scope of the powers granted by the parties to Clinton Harris at that specific time, not the duration of the grant.

¶ 14. The primary purpose of all contract construction principles and methods is to determine and record the intent of the contracting parties. Kight v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1358 (Miss.1989). Our supreme court has set out a three-tiered approach to contract interpretation. Pursue Energy Corp. v. Perkins, 558 So.2d 349 (Miss.1990).

¶ 15. First, the “four corners” test is applied, wherein the reviewing court looks to the language that the parties used in expressing their agreement. Id. at 352 (citing Pfisterer v. Noble, 320 So.2d 383, 384 (Miss.1975)). If the language used in the contract is clear and unambiguous, the intent of the contract must be realized. Id. Legal purpose or intent should first be sought in an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence. City of Grenada v. Whitten Aviation, Inc., 755 So.2d 1208, 1214(¶ 16) (Miss.Ct.App.1999) (citing Cooper v. Crabb, 587 So.2d 236, 241 (Miss.1991)). Thus, the courts are not at liberty to infer intent contrary to that emanating from the text at issue. Id. (citing Cooper, 587 So.2d at 241). On the other hand, if the contract is unclear or ambiguous, the court should attempt to “harmonize the provisions in accord with the parties’ apparent intent.” Pursue Energy Corp., 558 So.2d at 352.

¶ 16. Secondly, if the court is unable to translate a clear understanding of the parties’ intent, the court should apply the discretionary “canons” of contract construction. Id.

¶ 17. Finally, if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence. Id. It is only when the review of a contract reaches this point that prior negotiations, agreements and conversations might be considered in determining the parties’ intentions in the construction of the contract.

¶ 18. “Of course, the so-called three-tiered process is not recognized as a rigid ‘step-by-step’ process. Indeed, overlapping of steps is not inconceivable.” Id. at 351 n. 6.

¶ 19. Clearly, the intention of the parties to the agreement was to address the possession, use, and control of the real property owned by Walter at the time of his death since his estate had not been administered. The agreement was an effort to achieve this goal.

¶ 20. Paragraph two of the agreement reads: “There shall be no division of the estate at this time with all of the real estate remaining intact and not separated or divided in any manner.” No other provision in the agreement addressed the time or manner when the estate could be divided. The trial court did not comment on the ambiguity of the phrase “at this time.”

¶ 21. Paragraph three of the agreement states:

Clinton Hams shall have the full use and possession of the house and grounds and all eultivatable land situated within the said 220 acre tract. No rent is to be charged the said Clinton Harris for the use of said house and land. In return for the use of the house and land, the said Clinton Harris shall, as reasonably as is possible, protect the interests of the remaining heirs in the house and land and shall in general, look after the house and land; the other heirs all being absentee owners, Clinton shall receive the full benefit of all crops grown upon the land.

¶ 22. The trial judge reached this conclusion without, as previously noted, making any specific comment as to what he thought the parties contemplated by the use of the phrase “at this time.” However, when paragraph two, containing the phrase “at this time” is read together with the remaining paragraphs, particularly paragraph three, it becomes readily apparent that the parties’ intent was not to limit the restraint on their alienation only to the time of the execution of the contract. Some greater period of time was contemplated. That is what we next consider.

¶ 23. Here the parties agreed that there would be no division of the property “at this time.” They did not specify when they would be agreeable to divide the property or whether a single party might assert individually, at some later time, his or her right to have the property divided. The trial judge concluded that the parties intended to give Clinton a life estate in the property. It is clear that the parties desired to keep the home place intact for some extended period of time; therefore, we cannot conclude that the trial judge’s finding — that the parties intended to give Clinton a life estate in the property — is clearly erroneous.

II. WHETHER THE INTERPRETATION OF THE CONTRACTUAL PROVISION ADOPTED BY THE CHANCELLOR CREATES AN IMPERMISSIBLE RESTRAINT ON ALIENATION

¶ 24. The trial court found that the restraint on the parties’ right of alienation, by the language of the agreement, was not indefinite but limited to Clinton’s life span. Quincy argues that the agreement, as interpreted by the chancellor, confers an indefinite restraint on his ability, and the ability of other signatories to the agreement, to sell or divide their property. Therefore, according to Quincy, the agreement is void as constituting an unreasonable restraint in its scope.

¶ 25. The right of joint owners to have their property partitioned can be restricted or limited for a reasonable length of time by contract, will, or deed. Wiener v. Pierce, 203 So.2d 598, 603 (Miss.1967). Because reasonable restraints of alienation are permissible under Mississippi law, the only question that remains is whether the agreement’s restraint on alienation, as measured for the duration of Clinton’s life, is reasonable.

¶ 26. In re Estate of Kelly, 193 So.2d 575 (Miss.1967), answers the question of reasonableness for restraints on alienation. In In re Estate of Kelly, the testator gave a life estate in certain real property to his daughter with a proviso that the home property of the testator could not be alienated until the grandchildren of the testator reached forty-five years of age. The Mississippi Supreme Court affirmed the lower court’s ruling that this provision was void. However, applying the equitable approximation doctrine so as to give effect to the intention of the testator to the extent the law permitted, the Court upheld the restraint upon the sale of the property in question during the lifetime of the daughter, but would not permit the restraint to be extended beyond her lifetime.

¶ 27. Guided by Kelly, this Court finds that the limitation, as interpreted by the trial court, on Quincy’s right to alienate his interest in the property is reasonable.

¶ 28. The final argument presented by Quincy is that the trial court’s ruling leaves Monzola and Barbara bound by a contract they never signed or ratified. Vaughn, Monzola’s husband and Barbara’s father, signed the agreement in 1977. Vaughn was bound by the agreement not to divide the property for the duration of Clinton’s life. Vaughn died in 1991, and Monzola and Barbara took his one-fifth interest in the property. As successors-in-interest to the property, Monzola and Barbara can have no greater interest or rights than Vaughn. See Webster v. Parker, 42 Miss. 465, 466 (Miss.Err. & App.1869). Therefore, Monzola and Barbara are bound by the terms of the agreement just as Vaughn would have been had he been still alive.

¶ 29. THE JUDGMENT OF THE UNION COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANTS.

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

      . Monzola Harris and Barbara Harris joined Quincy in seeking relief although they never filed a formal joinder in the case.


text:
    Willie D. HOPE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01969-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.

      Raymond L. Wong, Cleveland, attorney for appellant.
    Office of the Attorney General, by Deirdre MeCrory, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   MYERS, J.,

for the court.

¶ 1. Willie Hope was convicted of manslaughter and possession of a firearm by a convicted felon. Hope appeals asserting:

1. THAT THE TRIAL COURT ERRED BY ADMITTING EVIDENCE OF A SPENT FIREARM SHELL CASING; AND
2. THE TRIAL COURT ERRED IN DENYING THE MOTION FOR A DIRECTED VERDICT BECAUSE THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

STATEMENT OF FACTS

¶ 2. On Wednesday, July 25, 2001, Officer Robert Graham arrived in the neighborhood at about 11:00 p.m. the night of the shooting. He had been called to investigate an alleged rock throwing. Hope, apparently the one who called the police, told Officer Graham that Reginald “Fish” Fulton had been throwing rocks at his house. Officer Graham left to find and talk to Fish. Fish was found by Officer Graham and Fish told the officer that Hope and Fish’s sister had just broken off a relationship.

¶ 3. After Officer Graham left the area, three men pulled up close to Hope’s house in an automobile. The driver, Larry Pen-dleton, stated that he was there, at almost midnight, to feed the dogs of one of his friends. The driver went into one of the houses or behind one of the houses. The other two men, Brian Morrison and the victim, William Jackson, stayed by the car. Testimony was given that Hope knew and was friends with all three men and that he spoke to them.

¶ 4. Sometime after the three men arrived, Fish returned. Hope had a gun out and was threatening Fish. Several people, including Jennifer Brown and Karen Hope, Hope’s nieces, tried to prevent Hope from shooting Fish. Somehow the gun discharged and Jackson was struck with a bullet. Jackson was standing on the other side of the car which was partially blocked by a tree. The angle at which Hope was standing in relation to the victim made it a difficult shot because Jackson was partially shielded by the car, a tree, and the corner of a house. Hope fled the scene.

¶ 5. The police arrived at the crime scene and an investigation was conducted. A spent shell casing was recovered the next day from the area where it was reported Hope was standing. A bullet was recovered from the victim which matched the caliber of the spent shell casing. No gun was ever recovered.

LEGAL ANALYSIS

l.THAT THE TRIAL COURT DID NOT ERR BY ADMITTING EVIDENCE OF A SPENT FIREARM SHELL CASING

¶ 6. Mississippi Rule of Evidence 403 states that “[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M.R.E. 403. In Lambert v. State, 462 So.2d 308, 313 (Miss.1984) our Supreme Court established the following standard of review: “The determination of relevancy [of evidence] is left to the sound discretion of the trial judge whose determination will not be reversed in the absence of clear abuse.”

¶ 7. Hope argues that the shell casing should not have been allowed into evidence because the police did not properly secure the crime scene and that the shell casing could not be connected to Hope because no gun was recovered.

¶ 8. Addressing the arguments, it is important to remember that Hope admits throughout his brief that he had a gun at the time of the shooting. Witnesses testified that Hope had a gun. The fact that a crime scene was not, in Hope’s opinion, properly secure, goes to the weight the jury should credit to the evidence, not the admissibility. Additionally, a bullet of the same caliber as the shell casing was removed from the victim. A person was shot with a bullet that matched a shell casing that was found at the crime scene in the location where the defendant was standing and brandishing a firearm.

¶ 9. In compliance with both the spirit and the letter of Watts v. State, 635 So.2d 1364 (Miss.1994), the trial judge weighed the probative value of this evidence against its prejudicial effect and determined that indeed its probative value was greater than its prejudicial effect. The trial judge properly allowed the evidence into the case.

2. THE TRIAL COURT DID NOT ERR IN DENYING THE MOTION FOR A DIRECTED VERDICT BECAUSE THE VERDICT IS NOT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 10. As to the weight of the evidence, the trial judge is given wide discretion to order a new trial in the face of overwhelming evidence contrary to the jury’s verdict in order to prevent an unconscionable injustice. Braxton v. State, 797 So.2d 826, 828(¶ 6) (Miss.2000). While it is amazing that the victim was fatally shot given the positions of Hope, the victim, and the obstructions of the house, tree, and car, this is probably the reason that the jury found Hope guilty of manslaughter rather than murder.

¶ 11. The other argument presented is that since no gun was recovered, Hope could not be found guilty of possession of a firearm by a convicted felon. We disagree. Although Hope exercised his right not to take the stand, witness testimony, including the defense witness, placed Hope at the crime scene with a gun.

CONCLUSION

¶ 12. We affirm the conviction of Hope. The trial judge properly admitted the evidence in question and the jury returned a verdict. The verdict was not against the overwhelming weight of the evidence.

¶ 13. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I MANSLAUGHTER AND SENTENCE OF EIGHTEEN YEARS; AND COUNT II POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF ONE YEAR, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWO YEARS’ POST-RELEASE SUPERVISION WITH ALL SENTENCES TO RUN CONSECUTIVELY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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


author: GRIFFIS, J.,

text:
    John Wesley O’NEAL, a/k/a Johnny O’Neil, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01844-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.
    W.S. Stuckey, Greenwood, attorney for appellant.

      Office of the Attorney General, by W. Glenn Watts, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. John Wesley O’Neal was convicted of burglary of a dwelling and sentenced to eight years in the custody of the Mississippi Department of Corrections. On appeal, O’Neal asserts that the verdict was against the overwhelming weight of the evidence. Finding to the contrary, we affirm the final judgment of the Circuit Court of Sunflower County, Mississippi.

FACTS

¶2. On July 8, 2000, at approximately 4:00 a.m., James McCartney was on his porch when he observed a person enter an unoccupied rental home he owned that was located about two hundred feet from his residence. He also noticed that a window air conditioning unit was missing from the rental house. Mr. McCartney went inside his home to dress and to obtain a firearm. When he came back outside, he saw a man on the porch in the alcove of the rental home standing over an air conditioning unit. Mr. McCartney approached the man, who identified himself as John O’Neal. Mr. McCartney returned to his home with O’Neal, and his wife called the police.

¶ 8. Officer Banks of the Drew Police Department responded to the call. After arriving, Officer Banks placed O’Neal in his police car. Mr. McCartney and Officer Banks then went to inspect the rental house for any damage or evidence of stolen property. They discovered that the door to the rental house had been forced open, that two air conditioning units had been taken, and that the air conditioning unit on the porch was missing a front panel.

¶ 4. While Officer Banks and Mr. McCartney were inspecting the rental house, according to Mrs. McCartney, O’Neal climbed over the seat of the police car and fled towards a nearby apartment building. Officer Banks called for assistance and Sergeant Dwight Lucas responded. They found O’Neal in his apartment and arrested him. O’Neal gave the officers permission to search his vehicle where the officers found a window air conditioning unit and the front panel of another unit in his trunk. These items were taken to the police department where the McCartneys identified the items as their missing property.

¶ 5. At trial, Mr. McCartney corroborated these events and identified O’Neal as the person on the porch of the rental home that night. Mrs. McCartney did the same. Officer Lucas also corroborated the events and identified O’Neal as the man he found hiding behind a couch in O’Neal’s nearby apartment that night. The State rested and O’Neal moved for a directed verdict, which was denied by the trial court.

¶ 6. Subsequently, O’Neal testified and disputed the testimony of the State’s witnesses. O’Neal contended that he was walking his dog at 4:00 a.m. when he noticed a male and a female running from the house in question and that he was soon after approached by Mr. McCartney in the middle of the street. He denied ever entering the rental home or taking anything. He testified that he was never placed in the patrol car and that he was told to go home. Further, O’Neal testified that he opened the door to his apartment and the officers rushed in and threw him behind the couch. O’Neal also stated that the stolen items were not found in his trunk and that the car had been broken down for about a week.

¶ 7. In rebuttal, the State called Marlene Hamilton, O’Neal’s girlfriend and roommate. Ms. Hamilton refuted O’Neal’s version of the events. She testified that O’Neal’s car was working that night because he picked her up from work at about 1:00 a.m. Ms. Hamilton testified that after they returned home, he left the house at about 1:30 a.m. that morning and that he never took the dog with him. She also stated that when O’Neal returned home around 5:00 a.m., the dog was already inside before she let O’Neal in the apartment. She further stated that when she let the police in, O’Neal was hiding behind the couch. More importantly, she confirmed seeing the air conditioning unit in his trunk.

¶ 8. After the defense rested and instructions were given, the jury found O’Neal guilty. O’Neal filed a motion for a new trial or, in the alternative, for a judgment notwithstanding the verdict which was denied. O’Neal timely filed this appeal.

ANALYSIS

I. WHETHER THE VERDICT WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 9. O’Neal contends that the evidence presented was insufficient to support his conviction. He asserts that the evidence did not establish that he was seen inside the rental house removing an air conditioning unit or at any time holding an air conditioning unit. He further denied entering the rental house or taking the property. Therefore, O’Neal asserts that the verdict of the jury was against the overwhelming weight of the evidence. The State responds by pointing out that the testimony of the McCartneys, Officer Lucas and Ms. Hamilton, taken together with all reasonable inferences, was more than sufficient evidence to support the jury’s verdict.

¶ 10. This issue was recently addressed in Ford v. State, 753 So.2d 489, 490(¶ 8)(Miss.Ct.App.1999), where this Court held that:

[i]n determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice.

(citing Danner v. State, 748 So.2d 844 (Miss.Ct.App.1999)). Furthermore, the Mississippi Supreme Court has held that it:

must accept as true the evidence which supports the State’s position, together with all inferences reasonably flowing therefrom in the light most favorable to the State’s theory of the case. If there is sufficient evidence to support a verdict of guilty, this Court will not reverse.

Meshell v. State, 506 So.2d 989, 990 (Miss.1987). The Court further concluded that “the jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Meshell, 506 So.2d at 991(citing Arteigapiloto v. State, 496 So.2d 681, 686 (Miss.1986)).

¶ 11. In addition, the Mississippi Supreme Court in Shields v. State, 702 So.2d 380, 383 (Miss.1997), held that the test to be applied in considering the sufficiency of the proof of a jury verdict based on circumstantial evidence is “whether a rational fact finder might reasonably conclude that the evidence excludes every reasonable hypothesis inconsistent with guilt of the crime charged.” Shields also established a checklist of common sense circumstances to be considered:

1. The temporal proximity of the possession to the crime to be inferred;
2. The number or percentage of the fruits of the crime possessed;
3. The nature of the possession in terms of whether there is an attempt at concealment or any other evidence of guilty knowledge;
4. Whether an explanation is given and whether that explanation is plausible or demonstrably false.

Id. (citing Cosby v. Jones, 682 F.2d 1373, 1383 (11th Cir.1982)). Using the circumstances set forth in Shields as guidance, this Court will determine whether such inferences in the present case were within the province of the jury in order to find O’Neal guilty of burglary of a dwelling.

¶ 12. Burglary of a dwelling requires two elements: (a) unlawful breaking and entering and (b) intent to commit a crime once entry has been obtained. Miss.Code Ann. § 97-17-23 (Rev.2000). The record revealed that O’Neal was not only found in close proximity to the burglarized home, but was actually found by Mr. McCartney at the home that was burglarized. In addition, O’Neal was also in close proximity to the stolen property. He was standing over one removed unit when he was approached by Mr. McCartney and the other unit and additional front panel were discovered in his car. Furthermore, the items in his car provided a reasonable inference that the items were in his possession and evidence of recent possession is legally sufficient for the jury to infer guilt of burglary. See Shields, 702 So.2d at 382.

¶ 13. Moreover, the evidence that O’Neal was hiding behind a couch when the officer found him is proof of his guilty knowledge in that, one would assume, he was attempting to hide from the police. Additionally, O’Neal offered several explanations and versions in addition to his denials of that night, such as that he was walking the dog, that his car did not work, that he saw others running from the home, and that the officers threw him behind the couch. Each of these explanations was demonstrated to be false and further indicated evidence of his attempt to conceal his guilt. Therefore, although O’Neal was never actually seen removing the air conditioners or holding them, based on Shields and the evidence presented at trial, we find that a reasonable juror could infer that O’Neal did unlawfully enter McCartney’s rental home with the intent to steal the air conditioners and that he did in fact steal the air conditioner found in his trunk and the front panel of the other air conditioner.

¶ 14. As to the denials and versions presented, the jury resolved the question of conflicting testimony against O’Neal. “[T]he jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Meshell, 506 So.2d at 991. Therefore, accepting as true all evidence favorable to the State, this Court is compelled to conclude that the evidence was of such weight and sufficiency to support the jury’s findings. Thus, we affirm the judgment of the Circuit Court of Sunflower County, Mississippi.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


text:
    Toney WATTS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00884-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.
    Toney Watts, Pro Se, attorney for appellant.
    Office of the Attorney General, By: Jean Smith Vaughn, attorney for appellee.
    ■ Before KING, P.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Toney Watts pled guilty to uttering a forgery and was sentenced on January 30,1997, to a term of ten years in the custody of the Mississippi Department of Corrections with five years to serve in the RID program and five years under post release supervision. Watts’ probation was revoked on February 12, 1999. Aggrieved he asserts the following:

I. THE COURT ERRED IN DENYING APPELLANT’S RIGHT TO COUNSEL DURING THE REVOCATION HEARING.
II. THE COURT ERRED IN REVOKING APPELLANT’S TEN YEAR SENTENCE PURSUANT TO § 47-7-37 MISSISSIPPI CODE ANNOTATED 1972 AS AMENDED.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Toney Watts pled guilty to one count of uttering a forgery and was sentenced to ten years, five to serve in the RID program and five under post release supervision, as well as a fine and restitution. Watts was formally sentenced in an amended order of conviction on November 7, 1997. Upon completion of the RID program, Watts was released on probation for the remaining five years of his sentence. Watts failed to abide by the terms of his probation, his probation was revoked, and he was sentenced to complete the remaining five years of his sentence in the custody of the Mississippi Department of Corrections. Watts filed a motion for post-conviction relief on March 11, 2002. Watts filed for an out-of-time post-conviction appeal under Mississippi Code Annotated § 99-39-5(2), which was denied. Watts failed to demonstrate that he could overcome the procedural bar of the statute.

ANALYSIS

¶4. The time limitation in issue here is established in the post-conviction relief statutes themselves. When no appeal from a conviction is taken, relief must be sought within three years from the date that the time for taking an appeal expired. Miss.Code Ann. §§ 99-39-5(2) (Supp.2002). The statute waives the time bar when the supreme court of this state or of the United States has handed down a decision that would have changed the outcome of the case, when new and nearly conclusive exculpatory evidence is presented that had not been reasonably discoverable at the time of trial, or when the argument is that the sentence has expired or that probation or parole has been improperly revoked. Id. Scott v. State 791 So.2d 313, 314(¶ 3) (Miss.Ct.App.2001). Watts did not file his post-conviction writ until March 11, 2002.

¶ 5. Watts makes none of the necessary allegations for exemption from the statute of limitations. Watts asserts that his Sixth Amendment right to counsel was violated, but there is no right to counsel at a revocation hearing. Unlike many other proceedings involving those caught up in the criminal justice system, there is no automatic right to counsel at hearings for the revocation of probation. Riely v. State, 562 So.2d 1206, 1209 (Miss.1990). It is true that an exception to procedural bars may be found if a fundamental constitutional right would otherwise be denied. Luckett v. State, 582 So.2d 428, 430 (Miss.1991). Watts’ right to counsel argument does not fall into the exempt category under Mississippi Code Annotated § 99-39-5 (Supp.2000). See also Cole v. State, 608 So.2d 1313, 1319-20 (Miss.1992) (“a state may attach reasonable time limitations to the assertion of federal constitutional rights”). Therefore, the procedural bar is sustained.

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

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


text:
    Jonathan Lee “Slack” IVORY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00077-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.

      Kenneth E. McNees, William F. Vick, Jackson, attorneys for appellant.
    Office of the Attorney General By: Charles W. Maris, attorney for appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Jonathan Lee “Slack” Ivory was convicted in the Circuit Court of Adams County of the sale of cocaine. He was sentenced to a term of thirty years with ten years suspended and five years’ post-release supervision, and to pay a fine of $5,000 and all court costs and fees. Aggrieved, he asserts the following issues on appeal:

I. THE CIRCUIT COURT ERRED IN DENYING THE DEFENDANT’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, A NEW TRIAL.
II. THE CIRCUIT COURT ERRED IN SENTENCING IVORY AS THE SENTENCE IS DISPROPORTIONATE TO THE CRIME FOR WHICH HE WAS CONVICTED.

Finding no error, we affirm.

FACTS

¶ 2. On April 18, 2000, Jonathan Lee Ivory was contacted by Darlene Hardin. Although there was some dispute over exactly what was said, Ivory agreed to meet Hardin and arrived at the Natchez Inn in Natchez, Mississippi, about a half hour after Hardin contacted him. Unknown to Ivory, Hardin had agreed to cooperate with the local drug task force after having been caught for the misdemeanor offense of possessing a crack pipe. In the room adjoining hers were several Natchez-Adams County Metro Narcotics Unit officers who were watching Hardin’s room via a hidden video camera. Ivory allegedly sold Hardin cocaine for $180. After Ivory left the room, one of the officers retrieved the cocaine from Hardin and tested it to confirm its composition. Other officers pursued Ivory into the parking lot.

¶ 3. Officers outside, identified by their clothing as law enforcement officers, attempted to stop Ivory. Ivory made it to his car, however, and fled the scene. He later testified that he called the sheriffs department and asked if there were any charges on him, and a dispatcher at the department told him that there were not any. Nine days later, Ivory went to Atlanta, Georgia to visit his sister. After receiving calls from the mother of his child and a law enforcement officer, Ivory returned to Natchez and turned himself in to the authorities.

¶ 4. Ivory testified that the law enforcement agents used profanity at him, did not read him his Miranda warnings, twisted statements that he made, and also stated that he did not sell Hardin cocaine on April 18, 2000, but that she owed him $150. According to the agents, Ivory verbally waived his rights and made several incriminating statements, including that he ran from them because he knew he was in trouble and did not want to go to jail and that he buys drugs out of town in order to sell them in Natchez. At the close of the trial, the jury found Ivory guilty of the sale of cocaine. He was sentenced to thirty years with ten suspended, fives years of post-release supervision, and ordered to pay a fine of $5,000.

ANALYSIS

I. DID THE CIRCUIT COURT ERR IN DENYING THE DEFENDANT’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, A NEW TRIAL?

¶ 5. Ivory asserts that the trial court erred in denying his motion for a judgment notwithstanding the verdict, or in the alternative, a new trial. Ivory contends that Hardin was a crack addict that was untrustworthy as a witness and was only doing what was necessary to keep herself out of prison. Ivory testified that Hardin owed him money and that the evidence at trial did not prove that Hardin was not in possession of the cocaine before he arrived at the Natchez Inn. Ivory alleges that the video shown at trial was “at best, skewed” and that he did not waive his rights and his statements should not have been admitted at trial. There are no requirements that the waiver must be written, however. Davis v. State, 320 So.2d 789, 790 (Miss.1975).

¶ 6. A motion for a directed verdict, request for peremptory instruction, and motion for judgment notwithstanding the verdict all challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “If there is sufficient evidence to support a verdict of guilty, this Court will not reverse.” Meshell v. State, 506 So.2d 989, 990 (Miss.1987). See also Haymond v. State, 478 So.2d 297, 300 (Miss.1985); Fairley v. State, 467 So.2d 894, 902 (Miss.1985). This Court should reverse only where, “with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fair minded jurors could only find the accused not guilty.” Alexander v. State, 759 So.2d 411, 421(¶ 23) (Miss.2000) (quoting Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995)).

¶ 7. A motion for new trial challenges the weight of the evidence. McClain, 625 So.2d at 781. 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).

¶ 8. The evidence presented at trial showed that Ivory met Hardin at the Natchez Inn, and that after he left Hardin was in possession of cocaine. The only evidence which completely supported Ivory’s innocence was his own testimony. A reasonable and fair minded juror could easily find Ivory guilty. It is the jury’s duty to resolve conflicts in testimony. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). Accepting as true the evidence which supports the verdict, it is clear the trial court did not abuse its discretion in denying Ivory’s motion for a new trial.

II. DID THE CIRCUIT COURT ERR IN SENTENCING IVORY AND IS THE SENTENCE DISPROPORTIONATE TO THE CRIME FOR WHICH HE WAS CONVICTED?

¶ 9. Ivory asserts that the circuit erred in sentencing him to thirty years with ten suspended, five years’ post-release supervision, and fining him $5,000 as this sentence was disproportionate to the crime for which he was convicted. The State points out, however, that Ivory failed to object to his sentence either at the time the sentence was imposed or in his post-trial motion. If the appellant did not present to the trial court the proposition that his sentence was unconstitutional, he may not assert that allegation on appeal, and it is procedurally barred. Reed v. State, 536 So.2d 1336, 1339 (Miss.1988).

¶ 10. Without waiving the procedural bar, Ivory could have been forced to serve a maximum of thirty years under the applicable statute. Instead, the trial court suspended two-thirds of this amount and added fives years’ post-release supervision and a $5,000 fine which was also supported by statute. “[I]t is well settled that the imposition of a sentence is within the discretion of the trial court and this Court will not review the sentence, if it is within the limits prescribed by statute.” Reed, 536 So.2d at 1339.

¶ 11. Ivory bases his contention on the cases of White v. State, 742 So.2d 1126 (Miss.1999) and Davis v. State, 724 So.2d 342 (Miss.1998), both of which were remanded due to excessive sentencing. However, in both cases the sentences were for sixty years’ imprisonment, three times longer than Ivory was sentenced. Ivory asserts that the $5,000 fine makes his sentence “above and beyond” those given in White and Davis. Ivory points to the fact that the trial court did not conduct a pre-sentence investigation. The decision to conduct a pre-sentence investigation is within the discretion of the trial court and is not mandatory. Hart v. State, 639 So.2d 1313, 1320 (Miss.1994) ¶ 12.

¶ 12. Ivory was allowed to testify to his family status of being a father and that he suffers from multiple sclerosis. During the trial and sentencing, the trial court was also made aware that Hardin alleges that Ivory had sold her drugs on other occasions, that he admitted to being a drug dealer to the agents, and that after the trial he had been arrested on another drug charge while he was out on bond. “Within the statutory framework, sentencing is left to the sound discretion of the trial judge.” Jackson v. State, 740 So.2d 832, 836(¶ 15) (Miss.1999). The trial judge did not abuse his discretion in this case.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TEN YEARS SUSPENDED, FIVE YEARS’ POST-RELEASE SUPERVISION, AND FINE OF $5,000 IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Jane HATFIELD, Appellant, v. Don GREEN and Betty Green, Appellees.
    No. 2001-CA-01986-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.

      Gregory W. Harbison, Tupelo, attorney for appellant.
    Duncan L. Lott, Booneville, attorney for appellee.
    Before SOUTHWTCK, P.J., LEE and MYERS, JJ.
   MYERS, J.,

for the court.

¶ 1. Jane Hatfield sued Don and Betty Green in the Chancery Court of Prentiss County, seeking a dissolution of an alleged partnership and an accounting of the alleged partnership. At the end of the Greens’ case in chief, the chancellor granted the Greens’ motion for a directed verdict, finding that no partnership existed between Hatfield and the Greens. Hatfield appeals the verdict, raising as her sole issue whether a partnership existed between herself and the Greens.

Facts

¶ 2. In January 1998, the Greens bought a one-half interest in K’s Keepsake Kor-ner, a floral and gift business in Boone-ville, Mississippi from Kay Nunley Dawson. This resulted in Dawson and the Greens entering into a partnership agreement. Sometime in late 1998, Hatfield began to work for K’s Keepsake Korner, but was not paid for the work. Apparently, this arrangement was Hatfield’s idea so as to sidestep Social Security regulations concerning disability payments she received.

¶ 3. In December 1998 or January 1999, Hatfield states she was approached by Mrs. Green to become a third partner in the business. They discussed this with Dawson, who stated she would prefer to simply be “bought out” of the partnership. Dawson and Hatfield later had a telephonic conversation in which Dawson told Hatfield that her interest in the business was worth $5,000. Hatfield paid Dawson this money the next day, reportedly in the presence of the Greens.

¶4. During the next month, Hatfield allegedly made several capital investments in the business, which was renamed Booneville Flowers and Gifts. These investments included purchasing insurance for the business and purchasing a sign. Additionally, Hatfield brought many floral supplies from a personal supply she had at her home.

¶ 5. Shortly after Valentine’s Day, 1999, tension arose between Hatfield and the Greens. This tension became so severe that Hatfield eventually felt that she had been ousted from the business. On the advice of her attorney, she returned to the business one time with a police escort to retrieve the supplies she had brought from her home.

¶ 6. On March 1,1999, the Greens filed a complaint in the Circuit Court of Prentiss County seeking a writ of replevin to be issued for various supplies allegedly taken from Booneville Flowers and Gifts. On March 29, 1999, Hatfield filed a petition in the Chancery Court of Prentiss County for dissolution of the partnership and an accounting. On May 10, 1999, the circuit court transferred the replevin action to the chancery court to be decided along with the dissolution and accounting action. After the trial, the chancellor issued his written opinion and judgment, finding that no partnership existed between Hatfield and the Greens. The chancellor did grant Hatfield equitable relief, but this was offset by the Greens’ claims, leaving a judgment against Hatfield for $8,613.57 plus interest.

Legal Analysis

¶ 7. Hatfield argues that the chancellor misapplied the partnership laws of the state. Therefore, we will review the chancellor’s application of the law de novo. White v. Usry, 800 So.2d 125, 128(¶9) (Miss.Ct.App.2001) (citing Zeman v. Stanford, 789 So.2d 798, 802(¶12) (Miss.Ct.App.2001)).

¶ 8. In his opinion, the chancellor found “there was never any written agreement between Mrs. Hatfield and the Greens to reflect the formation of a partnership.” While a written agreement would remove any doubt about the existence of a partnership, it is not the only way a partnership may arise. See Miss. Code Ann. § 79-12-31 (Rev.2001). The Mississippi Supreme Court recognized that absent an express agreement, the chief criterion in determining the existence of a partnership is the parties’ intent. Allied Steel Corp. v. Cooper, 607 So.2d 113, 117 (Miss.1992) (citing Hults v. Tillman, 480 So.2d 1134, 1143 (Miss.1985)). This intent may be inferred from the parties’ actions and conduct. Id.

¶ 9. Although Hatfield contested the chancellor’s application of the law, interpreting a party’s intent placed the chancellor in the position of finder of fact. As such, the standard of review now changes. Since the chancellor heard the testimony and was in a better position than we to judge the weight and worth to give it, we will uphold the chancellor’s decision as long as it is supported by substantial evidence in the record. Hinders v. Hinders, 828 So.2d 1235, 1244(¶28) (Miss.2002).

¶ 10. Conflicting evidence was presented on what was the parties’ intent. One of the few things that was uncontested was that Mrs. Green had expressed interest in forming a new partnership between herself, Hatfield, and Dawson. Dawson was not interested in this new partnership, but was interested in having Hatfield “buy” her interest in the business. All negotiations and payments were strictly between Hatfield and Dawson. Never did the Greens manifest the intent which § 79-12-11 requires.

¶ 11. Hatfield testified she did several things for the partnership at the Greens’ request. Among these were opening a new bank account, purchasing a sign, and insuring the business. The Greens deny they ever requested these actions. As we previously stated, the chancellor was in the best position to determine the veracity of the witnesses. There is sufficient evidence in the record to support his decision. Therefore, we must affirm.

¶ 12. THE JUDGMENT OF THE CHANCERY COURT OF PRENTISS COUNTY IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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