author: h GASKINS, J. JjPER CURIAM.

text:
    Alison K. SKAMANGAS, Plaintiff-Appellant v. Larry STOCKTON, et al., Defendants-Appellees.
    No. 37,996-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2004.
    Order on Rehearing April 1, 2004.

      Alison K. Skamangas, in Proper Person.
    Cook, Yancey, King & Galloway, by Kenneth Mascagni, Robert Kennedy, Shreveport, for Appellees.
    Before GASKINS, MOORE and LOLLEY, JJ.
   h GASKINS, J.

The plaintiff, Alison Kirkham Skaman-gas, appeals from the trial court’s denial of her request for documents pertaining to a Bossier City police officer. We reverse and remand this case for further proceedings consistent with this opinion.

FACTS

In December 1996, the plaintiff, who was a paralegal, and Heith E. Pumphrey, an off-duty Bossier City police officer, were involved in a confrontation in Shreveport. According to the plaintiff, Pumphrey— while dressed in civilian clothes and traveling in his private vehicle — blocked her car with his vehicle and approached her with his hand on his hip near his plainly visible firearm. She said he acted in a threatening and verbally abusive manner which frightened her. Although he did not think she had violated any law, he supposedly wished to “discuss her driving with her.” The officer admitted getting out of his vehicle to talk to the plaintiff but denied screaming at her or otherwise acting in a menacing manner.

In March 1997, the plaintiff filed suit against the officer in Caddo Parish for damages for assault and intentional infliction of emotional distress. Following a bench trial, the trial court ruled in favor of the officer. This court affirmed on appeal, Kirkham v. Pumphrey, 34,349 (La.App.2d Cir.12/20/00), 775 So.2d 634, writ denied, 2001-0201 (La.3/30/01), 788 So.2d 1191.

| ¡¿luring the pendency of the Caddo lawsuit, the plaintiff sought a subpoena duces tecum of Pumphrey’s complete personnel file, including all documents and audio tapes pertaining to complaints about or investigations of the officer. Pumphrey requested a protective order and moved to quash the subpoena. The trial court found that the material sought was privileged and granted Pumphrey’s motion.

On June 18, 2002, the plaintiff filed the instant suit, a petition for writ of mandamus, or alternatively for injunctive relief, against the City of Bossier City; Sergeant Larry Stockton, individually and as records custodian for the Internal Affairs Division of the Bossier City Police Department (BCPD); and Pumphrey. The plaintiff alleged that in late January and early February 2002, she had complied with the Louisiana Public Records Act, La. R.S. 44:1, et seq., when she requested documents pertaining to wrongful conduct by Pumphrey; however, she asserted that Stockton had refused to produce the documents. Instead, Stockton informed her in writing that internal affairs files were “not public records. These files are administrative and not released.” .The plaintiff further asserted that, contrary to La. R.S. 44:32(D), Stockton failed to cite the law exempting such records from inspection or copying.

The plaintiff requested that the court issue a writ of mandamus compelling the defendants to produce the documents or, alternatively, an injunction prohibiting them from withholding the items. ■ She also sought civil penalties under La. R.S. 44:35(E)(1), as well as penalties and sanctions against Stockton under La. R.S. 44:37, 14:132 and 14:134(1). Finally she | c¡asked for an expedited hearing under La. R.S. 44:35(C) and La. C.C.P. art. 3782.

On July 9, 2002, the defendants filed a peremptory exception of res judicata and a dilatory exception of failure to conform the petition to La. C.C.P. art. 891(A). They argued that the issue of access to Pum-phrey’s internal affairs files had already been litigated in the Caddo lawsuit where the trial court had quashed the plaintiffs subpoena to obtain the officer’s personnel file and all complaints or investigations involving him and granted the officer’s motion for protective order. As to the dilatory exception, they alleged that the plaintiff failed to give an address for receipt of service. This was remedied in her first amended petition.

In opposition to the plaintiffs petition, the defendants .filed the affidavits of Bossier City Police Chief K.M. Halphen and Assistant Police Chief Glenn Sproles. Chief Halphen stated that he utilized internal affairs investigations as a means to obtain feedback and criticism of police practices from within the department and from the public and that such investigations are an essential management tool. According to the chief, the BCPD has a policy of confidentiality to protect statements given by citizens under a promise of confidentiality or by officers under coerced waiver of their Fifth Amendment privilege; this policy is to insure an open channel for citizen complaints and “to promote full, candid communications with the internal affairs investigator.” Assistant Chief Sproles, who was the BCPD Internal Affairs officer for three years, stated that the BCPD classifies its internal affairs investigations as confidential because they involve |4statements of officers with compelled waivers against self-incrimination, statements provided by witnesses who are assured confidentiality, citizen complaints which are often given on the basis of anonymity, and perceptions and opinions of internal affairs investigators which reflect confidential disclosures. According to Sproles, the effectiveness of internal affairs investigations requires “open and candid disclosure of information” which occurs on the basis of promised confidentiality. In Sproles’ experience, persons with pertinent information are reluctant to share information about police misconduct and often refuse to provide information unless given assurance of confidentiality. Like the chief, the assistant chief averred that internal affairs investigations are an essential management tool in the BCPD and that the department maintains a policy of confidentiality to insure an open channel for citizen complaints and to promote full, candid communications with the internal affairs investigator.

A hearing was held on July 25, 2002. The defendants argued that they had supplied the plaintiff with everything in the Internal Affairs file except for items they deemed confidential; these confidential items consisted of 18 documents and two tapes which were related to an investigation of Pumphrey. The trial court ruled on the merits that since |sthe sought items involved an investigation of a law enforcement officer and were deemed confidential by the police department, the court likewise deemed them confidential and not subject to the Public Records Act. The court also declined to allow the plaintiff to question witnesses on the matter as it believed that would destroy the confidentiality of the records. The court chose to pretermit the res judicata issue.

A judgment denying the plaintiffs application for mandamus and/or injunction was signed on April 3, 2003.

The plaintiff appeals.

LOUISIANA PUBLIC RECORDS ACT

The Louisiana Public Records Act, La. R.S. 44:1, et seq., provides for public access to information concerning state government as it is conducted through its many agencies. Fryar v. Guste, 371 So.2d 742 (La.1979). It is a product of La. Const. Art. 12, § 3, which provides:

No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.

La. R.S. 44:l(A)(2)(a) of the Louisiana Public Records Act defines “public records” as follows:

All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or 1 (¡performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are “public records,” except as otherwise provided in this Chapter or the Constitution of Louisiana.

The Louisiana Public Records Act was obviously intended to implement the inherent right of the public to be reasonably informed as to the manner, basis, and reasons upon which governmental affairs are conducted. Laws providing for the examination of public records must be liberally interpreted to extend rather than restrict access to public records. Trahan v. Larivee, 365 So.2d 294 (La.App. 3d Cir. 1978), writ denied, 366 So.2d 564 (La.1979). See also Title Research Corporation v. Rausch, 450 So.2d 933 (La.1984); Bozeman v. Mack, 1997-2152 (La.App. 1st Cir.12/21/98), 744 So.2d 34, writ denied, 1999-0149 (La.3/19/99), 740 So.2d 113.

The act exempts certain records held by prosecutive, investigative, and law enforcement agencies. La. R.S. 44:3 provides in pertinent part:

A. Nothing in this Chapter shall be construed to require disclosures of records, or the information contained therein, held by the offices of the attorney general, district attorneys, sheriffs, police departments, Department of Public Safety and Corrections, marshals, investigators, public health investigators, correctional agencies, communications districts, intelligence agencies, or publicly owned water districts of the state, which records are:
(1) Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated until such litigation has been finally adjudicated or otherwise settled, except as otherwise provided in Subsection F of this Section; or
(2) Records containing the identity of a confidential source of information or records which would tend to reveal the identity of a confidential source of information; or
|7(3) Records containing security procedures, investigative training information or aids, investigative techniques, investigative technical equipment or instructions on the use thereof, criminal intelligence information pertaining, to terrorist-related activity, or threat or vulnerability assessments collected or obtained in the prevention of terrorist-related activity, including but not limited to physical security information, proprietary information, operational plans, and the analysis of such information, or internal security information; or
(4)(a) The records of the arrest of a person, other than the report of the officer or officers investigating a complaint, until a final judgment of conviction or the acceptance of a plea of guilty by a court of competent jurisdiction. However, the initial report of the officer or officers investigating a complaint, but not to apply to any followup or subsequent report or investigation, records of the booking of a person as provided in Louisiana Code of Criminal Procedure Article 228, records of the issuance of a summons or citation, and records of the filing of a bill of information shall be a public record.

The privileges granted under La. R.S. 44:3(A) have been strictly construed. The Louisiana Supreme Court in Fryar v. Guste, supra, clarified that a confidential informant is one who has or claims to have knowledge of a particular criminal matter or event and is only willing to give such information to representatives of a law enforcement agency provided his identity is kept secret or in confidence. A person who gives information without this assertion of confidentiality is not a confidential informant. See also Freeman v. Guaranty Broadcasting Corp., 498 So.2d 218 (La.App. 1st Cir.1986); United States Department of Justice v. Landano, 508 U.S. 165, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993). Likewise, a general.assertion that information might be used some time in the future does not qualify as information relating to ongoing criminal litigation. Freeman, supra.

LRIGHT TO PRIVACY

La. Const. Art. 1, § 5 states, in relevant part:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.

The determination of whether a document containing private information should be exempt from disclosure involves competing constitutional interests of right of access to public records and right to privacy. The first determination is whether a reasonable expectation of privacy exists. If so, then the court must balance the public records disclosure interest against the privacy interest. Alliance for Affordable Energy v. Frick, 96-1763 (La.App. 4th Cir.5/28/97), 695 So.2d 1126. The test for determining whether one has a reasonable expectation of privacy which is constitutionally protected “is not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society at large is prepared to recognize as being reasonable.” Capital City Press v. East Baton Rouge Parish Metropolitan Council, 96-1979 (La.7/1/97), 696 So.2d 562.

This reasonable expectation of privacy is embodied in La. R.S. 40:2532, which provides that a police officer’s personal, private information shall not be disclosed without his permission:

No person, agency, or department shall release to the news media, press or any other public information agency, a law enforcement officer’s home address, photograph, or any information that may be deemed otherwise confidential, without the express written consent of the law enforcement officer, with respect to an investigation of the law enforcement officer.

|9In Trahan v. Larivee, supra, the Third Circuit weighed the right of access to public records against the right to privacy. Although the court found that job evaluations of various city department heads were public records, it determined that disclosure of the documents should be denied as an invasion of privacy of the employees affected. The court considered that the evaluation report was very personal and directly affected the employee. The disclosure of personal opinions, the court surmised, might embarrass or humiliate the employee, even if favorable, and also might affect future employment. In concluding that the disclosure should be denied, the court reasoned that to promote accurate and candid evaluations, confidentiality of the evaluations was vital. It found that the evaluations were a management tool in the administration of efficient government. Thus, the public interest was better served by keeping the evaluations confidential. See also Marine Shale Processors, Inc. v. State, Through Department of Health and Hospitals, 572 So.2d 280 (La.App. 1st Cir.1990), in which the court held that the Louisiana constitutional right to privacy prohibited disclosure of the identity of private citizens who willingly participated in a public health study.

DISCUSSION

The plaintiff complains of a myriad of alleged minor errors by the trial court, including failing to give her a preferential setting and rushing through the hearing without giving her adequate time to present her case. More substantively, she contends that the trial court erred in accepting the defendants’ bald assertion that the records were confidential and in failing |]nto allow examination of witnesses to challenge the claim of privilege. In support of her position that complaints against a law enforcement officer, including internal affair files, are public records subject to disclosure, the plaintiff cites two opinions rendered by the Office of the Louisiana Attorney General.

The defendants argue that the 13 documents and two tapes not already provided to the plaintiff were derived from confidential interviews by the investigator for internal affairs. They maintain that this confidential information fits within the exception created by La. R.S. 40:2532 and La. R.S. 44:3(2). ■ They further assert that releasing this information would constitute an unwarranted invasion of privacy. In support of their position that some material should not be disclosed as it would amount to an invasion of privacy, the defendants cite Trahan v. Larivee, supra, and La. Atty. Gen. Op. No. 93-333 (7/27/93).

The attorney general stated in La. Atty. Gen. Op. No. 93-333 that, even though a record of a formal complaint against an officer was a public record, an agency had “considerable discretion” under La. R.S. 40:2532 to determine what confidential information should be deleted from records prior to disclosure. As to constitutional privacy concerns, a two-pronged test should be applied. The officer must have a reasonable expectation of privacy as to the material sought; if he does not, the inquiry ends. If he has a reasonable expectation, then one must balance the public records ^disclosure interest of the public against the privacy interest of the individual. In summary, the opinion stated:

On this point, it is our opinion that generally, these records are public records, subject to disclosure. That information specifically exempted by LSA-R.S. 40:2532 should be deleted prior to the release of these records, absent the officer’s written consent to the disclosure. It is our further opinion that it would be necessary to examine these records on a case-by-case basis in order to evaluate the legality of the disclosure of all such information contained therein, in light of the statutory and constitutional exemptions prohibiting the disclosure of certain “confidential” information.

In Amoco Production Co. v. Landry, 426 So.2d 220 (La.App. 4th Cir.1982), writ denied, 433 So.2d 164 (La.1983), several oil companies sought to compel the Louisiana Board of Professional Engineers and Land Surveyors to allow inspections of the records of disciplinary hearings involving engineers of two companies. The appellate court found that the documents were public records and their release would not violate the constitutional right of privacy of the engineers involved in hearings. In so holding, the court considered the Trahan case:

The only reported Louisiana decision holding public records exempt from disclosure based on claims of privacy is Trahan v. Larivee, 365 So.2d 294 (La. App. 3rd Cir.1978), which held that performance evaluations in the personnel files of municipal employees were private. Such performance evaluations are readily distinguishable from the records sought in the instant case. The performance evaluations were not compiled by the City in connection with formal hearings held concerning these employees, nor were the employees charged with any misconduct. They were not records of any formal proceedings by the City, but were records of a nature any private employer would maintain on its employees. The records that appellants seek in the case before us are records of formal proceedings of the Board conducted in the exercise of its statutory | ^function to discipline license [sic] engineers. Thus there could be no reasonable expectation of privacy by the appellees. [Emphasis theirs.]

Other states have taken varying approaches to disclosure of internal affairs files. In Cowles Publishing Company v. State Patrol, 109 Wash.2d 712, 748 P.2d 597 (1988), none of the parties argued that the records sought were not public records. The court found that a statutory personal information exemption did not prohibit disclosure of the names of officers against whom complaints had been sustained; such disclosure did not constitute an unreasonable invasion of personal privacy. The officers’ actions while performing public duties or improper off-duty actions in public which bore upon their ability to perform their public office were not activities protected as matters of personal privacy, and a reasonable person would not be offended by disclosure of their names. However, the court concluded that an investigative records exemption did protect the names of the officers against whom complaints were sustained, complainants and witnesses, from disclosure since officers’ cooperation in internal investigation was frequently available because they knew the incident would be kept confidential.

In Direct Action for Rights and Equality v. Gannon, 713 A.2d 218 (R.I.1998), a Rhode Island court found that police civilian complaint reports were “public documents” required to be disclosed upon request in redacted form whenever final action occurred. However, the court also determined that the findings need not be disclosed as they were not records representing final action under the statute. In Bolm v. Custodian of Records of the Tucson Police Department, 193 Ariz. 35, 969 P.2d 200 (1998), an Arizona appellate court refused to fashion a blanket rule protecting law enforcement personnel and internal affairs records from a public records request, finding instead a balancing test should be applied on a case-by-case basis to determine whether a particular record should be released. It also approved the practice of a trial court generally conducting an in camera inspection in such a situation. In Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester, 58 Mass.App.Ct. 1, 787 N.E.2d 602 (2003), review denied, 440 Mass. 1103, 795 N.E.2d 574 (2003), the court found that a police chiefs memorandum to an officer under investigation was exempt personnel file information while documents from the internal affairs investigation were not. It concluded that a “citizenry’s full and fair assessment of a police department’s internal investigation of its officer’s actions promotes the core value of trust between citizens and police essential to law enforcement and the protection of constitutional rights.” The court stated that it would be odd “to shield from the light of public scrutiny” a process “whose quintessential purpose is to inspire public confidence.”

The U.S. Supreme Court has ruled, in a criminal case, a police officer defendant who gave a statement under threat of loss of his livelihood, was not voluntary and could not be admitted at the criminal trial of the police officer. Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).

luJUDICIAL REVIEW

In the instant case, the defendants seek, as a matter of law, a blanket presumption that all information in internal affairs files is confidential and therefore exempt from disclosure. Whether such a record is subject to disclosure must be determined at an adversary hearing on a case by case basis. La. R.S. 44:3(C); Cormier v. Public Records Request of Di Guilio, 553 So.2d 806 (La.1989); Harrison v. Norris, 569 So.2d 585 (La.App. 2d Cir.1990), writ denied, 571 So.2d 657 (La.1990); Revere v. Layrisson, 593 So.2d 397 (La.App. 1st Cir.1991).

La. R.S. 44:3 requires more than judicial acceptance of a general assertion of privilege. A meaningful opportunity must be afforded for cross-examination and presentation of evidence to contradict the claim of privilege. Cormier, supra; Conella v. Johnson, 345 So.2d 498 (La.1977); Freeman v. Guaranty Broadcasting Corp., supra; Elliott v. Taylor, 614 So.2d 126 (La.App. 4th Cir.1993). This does not mean that the defendant must name the source or describe the informant or information with such particularity that the record is revealed before the judge adjudicates its disclosure. The nature of the document must be revealed, however, as well as the assertion of privilege so that the requesting party may make a meaningful cross-examination. Further, the assertion of privilege must be |1fimade individually as to particular documents, and not in globo against the entirety of a mass of records. Freeman, supra.

In Freeman, supra, the appellate court gave the trial court guidance on how to proceed with an adversarial hearing for a public records request. We apply similar provisions, with appropriate modifications, to the instant case:

(1) The defendants are to produce all contested documents for an in camera inspection by the trial judge.
(2) The contested documents are to be sealed and maintained as confidential and under strict security, subject to the appropriate appellate court’s review.
(3) A representative of the defendants will be allowed to testify as to the identity of each document sought to be withheld, altered, or excised and such representative will set forth with specificity the particular privilege claimed, and the representative will be subject to a meaningful opportunity for cross-examination with respect to each asserted privilege. The identity of the document does not mean that the identity of the record maker or information contained therein must be revealed in order for an effective cross-examination to take place.
(4) The trial court shall make a detailed in camera inspection of each document produced on an item by item basis and determine if they are subject to any statutory privilege or if the privacy concerns outweigh the right to access public documents.
|1fi(5) The trial judge shall then provide a written opinion on an item by item basis detailing if the record is entirely confidential or the portion to be excised
and the reasons therefor. Once again, the opinion should generally identify the omitted or redacted records, while not disclosing the exempted information, and specifically note the privilege.

CONCLUSION

The judgment denying the production of the contested documents is reversed, and this case is remanded for a contradictory hearing and in camera inspection in conformity with this opinion.

REVERSED AND REMANDED.

ON REHEARING

Before WILLIAMS, STEWART, GASKINS, MOORE and LOLLEY, JJ.

JjPER CURIAM.

This rehearing application is granted for the limited purpose of assessing costs of this appeal. Pursuant to La. R.S. 13:5112, costs of this appeal in the amount of $237.50 are assessed against the defendants.

      . In its opinion, this court concluded: “Without in any way condoning the wisdom or propriety of Pumphrey's action in approaching Kirkham to discuss her driving, we affirm the trial court's ruling that Kirkham did not sustain her burden of proving that an assault occurred.”

      . According to the defendants’ appellate brief, seven of the documents were communications between the police department and Pum-phrey's counsel in the Caddo lawsuit. The remaining six documents were (1) the BCPD informal complaint investigation cover sheet; (2) a BCPD informal complaint investigation document containing a summary of the complaint and the investigating officer's opinions; (3) a “supervisory review and return” document containing the opinion of the reviewing officers; (4) two documents called “internal investigation warning” informing Pumphrey of his rights; and (5) a one-page memorandum prepared by the investigating officer, containing summaries of information obtained from the plaintiff, Pumphrey and “a witness,” as well as the investigating officer’s opinions, findings and recommendations. The tapes are asserted to be two identical tape recordings of the January 15, 1997 interview of Pumphrey by the BCPD internal affairs investigator.

      . However, in an obvious typographical error, the judgment gives the date as "this 3 day of April, 2002.”

      . Also in La. Atty. Gen. Op. No. 94-216 (7/13/94), the attorney general opined that the law enforcement internal affairs files were public records.

      . Although Attorney General opinions are merely advisory and not binding, the courts of this State have recognized their persuasive authority. City of New Orleans v. Board, of Directors of Louisiana State Museum, 1998-1170 (La.3/2/99), 739 So.2d 748; State in Interest of J.M., 97-491 (La.App. 3d Cir. 10/29/97), 702 So.2d 994.

      . We note that the legislature could have included such an exemption in the Public Records Act, but failed to do so. The legislature has enacted specific laws to prohibit disclosure of some records, for example: records in custody of the governor (La. R.S. 44:5), public hospital records (La. R.S. 44:7), and judiciary commission records until filed by the commission with the supreme court (La. R.S. 44:10). See also La. R.S. 44:4.1, which lists a multitude of exceptions. It is within the province of the legislature to enact a wholesale exemption for internal affairs records.


source: Caselaw Access Project

author: EASLEY, Justice,

license: Public Domain

text:
    ATTALA COUNTY BOARD OF SUPERVISORS d/b/a Attala Care Center v. MISSISSIPPI STATE DEPARTMENT OF HEALTH and Garry V. Hughes d/b/a the Kennington.
    No. 2002-CA-01957-SCT.
    Supreme Court of Mississippi.
    Feb. 26, 2004.

      Julie Ann Bowman, Jackson, Andy Low-ry, Oxford, Thomas L. Kirkland, Jr., Montgomery, AL, attorneys for appellant.
    Robert Richard Cirilli, Jr., Edmund L. Brunini, Jr., Jackson, Sarah E. Berry, Ocean Springs, attorneys for appellees.
    Before PITTMAN, C.J., EASLEY and DICKINSON, JJ.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. On June 27, 2002, the Mississippi State Department of Health (MSDH) awarded a certificate of need (CON) to Garry V. Hughes (Hughes), d/b/a the Ken-nington for the construction of a 60-bed nursing home in Attala County, Mississippi. There were four applicants: (1) Hughes d/b/a the Kennington; (2) the At-tala County Board of Supervisors (the Board) d/b/a Attala Care Center; (3) Atta-la Health Care Center, Inc.; and (4) Sentry North, L.P. (Sentry) d/b/a Sentry Atta-la. The Board was the only applicant to timely appeal the MSDH’s decision to the Chancery Court of Attala County pursuant to Miss.Code Ann. § 41-7-201(2) (Rev. 2001). The chancery court issued its decision affirming the CON award to Hughes and denied the Board’s motion for reconsideration. The Board now appeals to this Court.

FACTS

¶ 2. The Mississippi Legislature authorized MSDH to award a CON to build a 60-bed skilled nursing facility (nursing home) in Attala County. On June 1, 2001, the MSDH received four CON applications for the construction of a 60-bed nursing home in Attala County. After finding that all four of the CON applications were complete, the MSDH’s CON division entered the applications into the July 2001 review cycle.

¶ 3. The CON review process follows the steps set forth in the Certificate of Need Revietu Manual (the Manual) published by the MSDH. Step one is to file a notice of intent to seek a CON. Step two is to submit the full CON application in accordance with the Manual. If an application is found to be incomplete by MSDH, supplemental information may be filed within a month after the initial filing' deadline. Step three is for the MSDH staff to analyze those applications which are substantially complete and compliant and to recommend whether they should be approved or rejected. Where there exists competing nursing home applicánts for the same CON, as in this case, the staff rates the applicants on a point scale out of ten categories.

¶ 4. The MSDH’s CON staff (the Staff) determined that all four applications were in substantial compliance with the applicable policy statements, standards and criteria in the Fiscal Year 1999 Mississippi State Health Plan (the Plan). After finding substantial compliance with the Plan, the Staff applied the comparative scoring methodology for competing applicants contained- in the Manual to rank the applicants. The Manual established factors that the MSDH must consider in cases where there exists competing CON applications: - The factors are derived from the Plan and designed to promote the policies contained in the Plan. These factors were considered by the Staff in ranking the applicants:

1. Size of facility;
2. Capital Expenditure;
3. Cost Per Square Foot;
6. Medicare Utilization;
7. Total Cost to Medicaid;
8. Per Diem Cost to Medicaid;
4. Cost Per Bed;
5. Staffing;
9. Continuum of Care Services;
10. Community Support.

¶ 5. According to the Manual, each of the factors are assigned equal weight. The application receiving the lowest composite score in the ranking will be considered the most appropriate application. That is, the winner of a factor will receive a score of 1, and the second place applicant will receive a score or 2, and so forth.

¶ 6. In the case at hand, the comparative scoring methodology conducted by the Staff resulted in composite scores of 16 for Hughes; 17 for Attala Health Care Center; 26 for Sentry; and 34 for the Board. Based on these results, the Staff recommended approval of Hughes’s application and disapproval of the other three applications. Following the Staffs recommendation, both the Board and Hughes requested a public hearing during the course of review on the Board’s application. Attala County Health Care Center and Sentry did not request a public hearing on any of the four applications. They also did not participate in the hearing between the Board and Hughes.

¶ 7. The public hearing was held on June 5, 6 and 7, 2002, before an independent hearing officer who was appointed by the Attorney General’s Office. Hughes and the Board had legal representatives present throughout the hearing. A total of ten witnesses testified, including Harold Armstrong (Armstrong), Chief of the Division of Health Planning and Resources Development. A total of fifty-five exhibits were identified or admitted into evidence.

¶ 8. After the hearing, the hearing officer asked the parties to submit proposed findings of fact and conclusions of law by June 21, 2002, to permit a recommendation to the SHO before the June 27, 2002, monthly CON meeting. Due to a delay by the court reporter in preparing the transcript, the parties requested that the hearing officer extend the deadline for submitting proposed findings of fact and conclusions of law to June 24, 2002.

¶ 9. After considering the parties’ written briefs, the hearing officer concluded that the Staffs comparative scoring methodology was sound and was properly applied by the Staff to the four competing applications. The hearing officer recommended to the SHO that the MSDH approve Hughes’s CON application for the additional long-term nursing home beds in Attala County. The SHO agreed with the recommendation of the Staff and the hearing officer and awarded Hughes the CON.

¶ 10. The Board appealed the SHO’s decision to the Chancery Court of Attala County. The chancery court issued its memorandum opinion and judgment affirming the MSDH’s decision that Hughes presented the most appropriate CON application. While criticizing certain parts of the MSDH comparative scoring methodology, the chancery court concluded there was substantial evidence to support the MSDH decision. The Board’s motion for reconsideration was subsequently denied by the chancery court.

DISCUSSION

¶ 11. The Court now addresses the following issues raised on appeal by the Board:

I. Whether the chancery court erred in its fundamental approach to the appellate review of Hughes’s CON application.
II. Whether the MSDH’s methodology used for its comparative review of competing CON applications was arbitrary and capricious.
III. Whether the entire selection process was hopelessly. tainted by the publicly posted data on the MSDH’s website so as to render the MSDH’s subsequent ruling arbitrary and capricious.

I. Appellate Review

¶ 12. Miss.Code Ann. § 41-7-201 (2)(i) specifies the extent of judicial review when an appeal is taken from a final order of the MSDH. Miss.Code Ann. § 41-7-201(2)(f) provides that a SHO’s CON order can be subject to judicial review. However, the “Court’s standard of review ... is quite limited.” St. Dominic-Jackson Mem’l Hosp. v. Miss. State Dep’t of Health, 728 So.2d 81, 83 (Miss.1998). Miss.Code Ann. § 41-7-201 (2)(f) provides in part:

The order shall not be vacated or set aside, either in whole or in part, except for errors of law, unless the Court finds that the order of the State Department of Health is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the State Department of Health, or violates any vested constitutional rights of any party involved in the appeal....

¶ 13. The decision rendered by the hearing officer and the SHO is “afforded great deference upon judicial review by the court, even though we review the decision of the chancellor.” St. Dominic-Jackson, 728 So.2d at 83 (citing Miss. State Dep’t of Health v. Southwest Miss. Reg’l Med. Ctr., 580 So.2d 1238, 1240 (Miss.1991)).

¶ 14. There is a rebuttable presumption in favor of the decision rendered by an agency. His Way Homes, Inc. v. Miss. Gaming Com’n, 733 So.2d 764, 767 (Miss.1999) (citing Sprouse v. Miss. Employment Sec. Comm’n, 639 So.2d 901, 902 (Miss.1994)); Miss. Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1216 (Miss.1993). “[T]he burden of proving to the contrary is on the challenging party.” Id. This Court, as well as, chancery and circuit courts, cannot “substitute its judgment for that of the agency or reweigh the facts of the case.” Id.

¶ 15. Our constitution does not’allow for the courts to conduct a de novo retrial of matters on appeal from administrative agencies. Cook v. Mardi Gras Casino Corp., 697 So.2d 378, 380 (Miss.1997). The judiciary is not permitted to make administrative decisions. Id. Therefore, this Court has recognized the strict limitation set out in Miss.Code Ann. § 41-7-201(2)(f) for appellate review in our courts as to decisions of the SHO and the MSDH.

¶ 16. In Miss. Dep’t of Health v. Natchez Cmty. Hosp., 743 So.2d 973, 977 (Miss.1999), this Court stated: “It is within the power of the chancellor to reverse the decision to grant the CON if such decision was not supported by substantial evidence. Substantial evidence means more than a scintilla or a suspicion.”

¶ 17. To prevail on appeal, the appellant must demonstrate that an administrative agency’s decision was arbitrary and capricious and not based on substantial evidence. See id. See also Cain v. Miss. State Dep’t of Health, 666 So.2d 506, 510 (Miss.1995); Delta Med. Ctr. v. Greenwood Leflore Hosp., 609 So.2d 1276, 1277 (Miss.1992). This Court in Miss. State Dep’t of Health v. S.W. Miss. Med. Ctr., 580 So.2d at 1239, stated that “[t]he terms ‘arbitrary’ and ‘capricious’ are open-textured and not susceptible of precise definition or mechanical application.” See HTI Health Servs. of Miss., Inc. v. Miss. State Dep’t of Health, 603 So.2d 848, 851 (Miss.1992).

¶ 18. This Court has adopted helpful definitions that North Carolina had assigned in a similar context:

“Arbitrary” means fixed or done capriciously or at pleasure. An act is arbitrary when it is done without adequately determining principle; not done according to reason or judgment, but depending upon the will alone,' — -absolute in power, tyrannical, despotic, non-rational, — implying either a lack of understanding of or a disregard for the fundamental nature of things.
“Capricious” means freakish, fickle, or arbitrary. An act is capricious when it is done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles....”

HTI Health Servs., 603 So.2d at 851 (quoting S.W. Miss. Med. Ctr., 580 So.2d at 1239).

¶ 19. This Court must now determine whether the MSDH’s decision was arbitrary and capricious, or unsupported by substantial evidence.

II. MSDH’s Methodology

¶ 20. The Board’s argument on appeal focuses on the methodology utilized by the MSDH in its comparative review of the competing CON applications, and it contends the MSDH’s action was arbitrary and capricious.

¶ 21. This Court has stated:

The methodology used in any given case should not be carved in granite; instead, some flexibility is required. It is prudent to utilize a methodology that will accommodate the various and sundry circumstances found in each individual case.

HTI Health Servs., 603 So.2d at 853.

¶ 22. This Court defined both arbitrary and capricious in the context of administrative agencies in Natchez Cmty. Hosp., 743 So.2d at 977. An administrative agency’s decision is deemed to be arbitrary “when it is not done according to reason and judgment, but depending on will alone.” Id. (citing Burks v. Amite County Sch. Dist., 708 So.2d 1366, 1370 (Miss.1998)). A action is defined as being capricious when “done without reason, in a whimsical manner.” Id.

¶ 23. Under MSDH’s ten-factor comparative scoring methodology, Hughes finished in first place with a composite score of 16. The Board finished in last place with a composite score of 34. On appeal, the Board contests Hughes’s projection and statements as to the following: (1) square footage; (2) capital expenditure; (3) cost per square foot; (4) staffing; (5) medicare utilization; and (6) certification.

1. Square footage

¶ 24. The Board contends that because the hearing officer found that Hughes’s 15,919 square footage projection was understated, his application was substantially incomplete or noncompliant with the criteria in the Plan and the Manual. Johnny Wynne (Wynne), Hughes’s architect, testified that in calculating the square footage, the non-heated areas were inadvertently left out of the calculations. Wynne prepared the preliminary schematic drawings on his computer but failed to take in to account the non-heated areas. The 479 square-foot understatement represented approximately 3% of the total project. The hearing officer determined that “if there are any modifications to the Ken-nington. [Hughes] floor plan, these modifications will be only minor and will not result in an appreciable difference from the 15,919 square feet proposed in the Kennington’s application.”

¶ 25. Dale Carr of the MSDH’s Licen-sure Division testified at the CON hearing that it makes absolutely no sense that anyone would prepare full scale, full blown architectural plans and drawings prior to receiving a CON. Typically, a basic plan is a projection.

¶ 26. Wynne rebutted the testimony by the Board’s architectural expert witness, Brett Gasaway (Gasaway), that Hughes’s nursing home plan for a 15,919 square foot facility did not comply with the licensing regulations. Wynne testified that he had been employed as an architect since 1963, with vast experience in the construction of nursing homes. In Í983, Wynne started his own business. Wynne estimated that since 1983, he builds 3 to 4 nursing homes a year. Prior to that while employed with Mediplex, an architectural company which builds nursing homes, he built 47 nursing homes. Based on his vast experience, Wynne was confident the 15,919 square foot facility would comply with the licen-sure regulations. Wynne noted that the areas for the clean linen storage and laundry that Gasaway claimed was missing was located “at the center court” on the design.

¶ 27. The Board also raised questions about whether Hughes could provide adult day care, social and recreational activities, therapy and barber and beauty shop services in a 15,919 square foot facility.

¶ 28. Armstrong testified that an adult day care center program is not required as part of a skilled nursing facility. Carr also testified that Mississippi does not license in a category called adult day care. Hughes stated that unoccupied rooms could be used for adult day care for the first year with future expansion to accommodate such a program. According to Armstrong, while it may be listed in an application, there is no requirement that it be done. No points are provided for having adult day care.

¶ 29. ■ Larry Fortenberry (Fortenberry) is the owner' of Southern Health Care, the company designated to manage and operate the Kennington. Fortenberry testified that he has been a licensed nursing home administrator for approximately 30 years, managing 3 nursing homes, including Hughes’s nursing home, Willow Creek, located in Byram, Mississippi. Fortenberry is a member of the Independent Nursing Home Association. Based on his experience, Fortenberry testified that while there is no requirement that a therapy room- be provided, “you do have to meet the .needs of the residents and provide therapy as we do-in our facilities. Our therapy is done in the [resident’s] room which provides a little more dignity and privacy to - the residents which is a big issue in patient rights and that’s where they want most of their therapy provided.” Fortenberry noted that the semi-private rooms would be equipped with curtains which can be drawn and doors that would close in order to provide privacy for the therapy.

• ¶'30; The Board argues that Hughes’s plan does not contain a separate activity or recreation room. Wynne testified that Hughes planned to have a folding curtain in the dining room to be able to hold assemblies. Wynne observed that his design as opposed to small separate rooms would better accommodate the trend of residents wanting to have space for an assembly of all the people at Christmas or family gatherings. According to Wynne, the building would accommodate all of the requirements.

¶ 31. The Board also argues that Hughes’s floor plan does not account for barber/beauty shop services. However, Carr testified that a barber/beauty shop is not required under the licensing regulations. Therefore, it does not count against the applicant. Wynne testified that while the service is not required, the building plan is large enough to accommodate the service. Wynne noted that the barber/beauty shop service is not offered on an eight hour per day basis but on a contract basis.

¶ 32. The chancery court did not find that the MSDH erred in considering Hughes’s bid. The chancery court stated:

It is true that Mr. Hughes’s bid was not complete when originally submitted and that in the hearing process, the hearing officer, apparently, treated it as modified in some areas, but there was substantial evidence to support part of his proposal. The system used by the Department [MSDH] permits amendments to the proposal, and the system permits adjustments to be made in the hearing process when deficiencies or errors are discovered.

¶ 33. This Court finds that the chancery court did not err in finding substantial evidence to support the decision of the hearing officer and the SHO. The MSDH’s decision was not arbitrarily or capriciously made as to Hughes’s ranking in this category.

2. Capital Expenditure/Cost per Square Foot

¶ 34. The Board contends that Hughes cannot build the Kennington for $39.16 per square foot. Hughes has been a contractor and developer since 1963. Hughes stated that he can be cost efficient when building because of his years of experience. The Board argues that its expert, Gasaway, testified that Hughes’s figure is contrary to the R/S Means data which sets the minimum cost per square foot at $66.00 for a compared projection in the South.

¶ 35. Hughes testified that he built his nursing home, Willow Creek, in Byram, Mississippi, for the actual cost $41.33 per square foot. Hughes noted that the cost of Willow Creek was higher than the Ken-nington because Willow Creek’s exterior was brick rather than vinyl siding, the rooms were larger, the commercial area was larger and the bathrooms, kitchen areas and commercial areas all contained concrete blocks. Hughes also identified other areas that would save money on the project by doing their own work rather than subcontracting: finish carpentry, roofing, drywall, earth work and landscaping. Hughes said that these savings, as well as, the variance in construction fees in different parts of the State are not taken into account in the R/S Means data.

¶ 36. The hearing officer stated:

On cross-examination, however, Mr. Gasaway admitted that the R/S Means Index is only a reference guide and that it has no legal effect. (Gasaway 156). He further testified he had no personal knowledge of Willow Creek and Mr. Hughes’s ability to construct that facility for $41.13 per square foot. (Gasaway 162, 169). He could not identify anything wrong with the Willow Creek construction. (Gasaway 162).
Mr. Hughes adequately explained why his projected cost of $39.16 is less than the figures shown in the R/S Means Index. Because he is the owner and contractor, Mr. Hughes will not be paying himself a profit. (Hughes 154).- According to Mr. Hughes, on this particular project, the contractor’s profit would be approximately $71,000. (Hughes 155). He also explained he would be only operating at about 4% overhead, which would result in another $28,000 in savings. (Hughes 155). Because he will be on the job every day, he will not have to pay a superintendent’s salary. (Hughes 156). This salary would be about $32,000. (Hughes 156). He estimates saving $20,000 on the concrete work because he has his own equipment for the job and therefore will not be required to hire a subcontractor. (Hughes 156). He projects a savings of $15,000 on the rough carpentry. (Hughes 156). For finish carpentry, Mr. Hughes stated that he would hang his own doors, do his own base and run his own handrails. (Hughes 157). This would result in a savings of approximately $10,800. (Hughes 157). He also projects savings on roofing and drywall due to the fact he will not have to hire subcontractors for this work. (Hughes 157).
In all, Mr. Hughes projects he will save about $206,000 on the Kennington construction as a result of having his own equipment and manpower. (Hughes 157). If this figure is added to the $623,388 figure, the total would be $829,388. At 15,919 square fee, the cost per square foot would be approximately $52.10 per square foot, a figure that is in line with the data supplied by the R/S Means Index.
With respect to the numbers submitted for the Kennington’s new construction, this Hearing Officer finds that Mr. Hughes’s testimony is more reliable and a more accurate indicator of what the Kennington’s actual cost will be. It is undisputed that he has already built a nursing home in Byram, Mississippi, and that he used the numbers from this construction as a reference guild for projecting his costs to build the Kenning-ton. While the R/S Means Index may as a useful resource for builders, the Willow Creek numbers shown in Exhibit 30 and the backup documentation for those numbers provide a much more reliable source for projecting the Ken-nington’s new construction costs. Moreover, even if the Kennington is required to modify its preliminary plans to provide, for example, 16,500 square feet as opposed to the 15,919 it has projected, such an adjustment would not have the type of impact on new construction costs that would result in the Kennington not receiving one point for the capital expenditure factor.

¶ 37. The Board also argues that Hughes’s capital expenditure figures are inaccurate because the facility will actually be larger than the 15,919 square feet projected in the application. As previously discussed, the facility’s projected square footage failed to include 500 additional square feet of non-heated space. Hughes testified that 500 square feet of non-heated space would only be a minor adjustment in the total capital expenditure. Hughes further stated that the application contained $30,000 in contingency costs that probably would cover any additional space.

¶ 38. Hughes offered competing testimony to that provided by the Board’s expert, Gasaway. The hearing officer heard the testimony of both Hughes and Gasa-way, and he determined that substantial evidence existed to support Hughes’s position. In Cain, 767 So.2d at 213, this Court stated: “A review of the testimony and evidence in the record supports the conclusion that the present case is largely one of competing testimony, and it is apparent the Health Officer is in a better position than this Court to evaluate this evidence.”

¶ 39. As to the capital expenditure issue raised by the Board, the chancery court did not find that the MSDH’s decision should be altered as to Hughes’s ranking in this category. The chancery court stated:

[The Board] challenges Kennington’s [Hughes’s] figures. The evidence reveals that [t]he Kennington had erroneously stated its total square footage and that its facility would, clearly, have to be larger that the 15,919 square feet its application indicates. There was also evidence that its site preparation costs would be more than indicated in its application. However, if its capital expenditures went up 25%, it would still be over 25% lower than Attala’s [the Board’s]. Since it is, apparently, the Department’s policy to allow modifications in applications, the Court finds that even with a 25% increase in this category, it would not change the rankings assigned, for its costs would still be way below Attala Care Center [the Board] and Attala Healthcare.
The next item is costs per square foot, and though its costs will go up if its square footage goes up, this should not affect its costs per square foot much since there would be a larger square footage to spread the costs over. In addition, Attala Care Center’s [the Board’s] costs per square foot is about 30% more than [t]he Kennington’s, so the change should not affect the ranking in this category. The Court recognizes that there is not a great deal of difference between [t]he Kennington figure and the Attala Healthcare figure in this category, but from the data available, the Court cannot find that any change in square foot costs would move Kenning-ton from a one ranking to a two in this category.
With extreme difference in costs per bed between Kennington and' Attala Care Center [the Board] and Attala Healthcare, even a 25% increase in costs in order to give Kennington the required square footage should not change the ratings in this category either.

¶ 40. We find that there is no evidence to support the Board’s position that the MSDH’s decision was either arbitrary or capricious. Substantial evidence was presented by Hughes as to his plans for the Kennington. The chancery court did not err in finding that Hughes’s ranking for this category should not be altered.

3. Staffing

¶41. Hughes’s application projected that 77 full-time employees would be hired at the Kennington during its first year. Hughes testified that he relied on Ann Davis (Davis) and Fortenberry for the operational numbers for the facility in the application. Davis, formerly of the Independent Nursing Association, was recommended to assist in preparation of the CON application. She in turn recommended Fortenberry to manage the Ken-nington. Davis, who had been sick, subsequently died before the hearing took place. Hughes testified that before she got sick, Davis was instrumental in putting the operational numbers together.

¶ 42. ■ Fortenberry testified that he provided the numbers to Davis for the number of employees that would be needed. He testified that at that time he was not aware that the CON application required full-time employees to be based on a 40-hour week. Fortenberry based his number on his staffing schedule that he used in his other facilities. He classified some employees as a full-time employee with a 32-hour week.

¶ 43. After MSDH scored the CON applications, Hughes discovered the 40 hours per week requirement. At the hearing, Hughes adjusted his projection for full-time employees. Fortenberry never informed Davis that some of the employees were figured at a 32-hour week. Forten-berry testified that Davis asked him to submit numbers based on what he does, but she did not tell him it had to be on a 40-hour per week basis.

¶ 44. Darryl Bueker (Bueker), a CPA who specializes in nursing home financial matters, testified as the Board’s expert that in his opinion the Kennington’s actual full-time employees would be 37.1 on a 40-hour per week basis. However, Tom Barnett (Barnett), Hughes’s CPA, disputed Bueker’s figure. Barnett testified it was impossible to operate a 24 hour a day, 7 days a weeks nursing home like the Ken-nington with 37.1 full-time employees. According to Barnett, after converting all full-time employees to a 40-hour per week basis, 66 full-time employees would be needed.

¶ 45. The hearing officer stated in his findings and conclusions:

Mr. Bueker’s calculation fails to take into account that 23 employees submitted as part of the Kennington’s 77 FTE [full-time employees]. Projection were on a 40-hour week.... Mr. Barnett’s calculations .... are consistent with Mr. Fortenberry’s testimony that he will hire employees on an as-needed basis or “ramping” during the first year ... Mr. Barnett’s calculations are based on actual data and factual information, as opposed to flawed assumptions. As a result, a projection of 66 FTEs is substantially more accurate than 37.1. On this basis, the Kennington would not lose any points on the conversion, nor would any of the other applicants’ positions change.

¶ 46. The chancery court also did not accept Bueker’s calculation on behalf of the Board and stated:

[T]he [Cjourt recognizes that the witness for Attala [the Board] testified that [t]he Kennington FTE number should be thirty-seven, but the Court does not understand how he [Bueker] arrived at that. The Court finds that when you convert a thirty-two hour week to a forty-hour week, you reduce the required number by 20%.

¶ 47. Since Hughes did not make clear in his application which full-time employees were calculated at a 32-hour week, the chancery court required that all of Hughes’s full-time personnel be converted to a 40-hour week. The chancery court found that: “[W]ith the leniency shown by the Department in permitting adjustments to the application, the Court concludes that the adjustment is in accord with the Department’s procedure.” The chancery court stated that with the adjustment the Kennington would moved to be ranked number 2, but the adjustment resulted in “no change in the ranking between Ken-nington [Hughes] and Attala Care Center [the Board].

¶ 48. This Court finds that there is substantial .evidence to support the chancery court’s decision that the MSDH’s decision was not arbitrary and capricious.

4. Medicare Utilization

¶ 49. Hughes submitted in his application a projected Medicare utilization percentage of 35%. The State’s Medicare utilization rate is 5.3 %. Hughes’s projection is over six times the State’s rate. The Board argues that it was arbitrary or capricious for the MSDH to accept Hughes’s Medicare utilization projection. However, the Board is silent to the fact that it is also over the State’s average Medicare utilization rate. The Board submitted an application that is approximately four times the State’s average at a Medicare utilization rate of 20%. In fact, all four applicants submitted a Medicare utilization rate substantially higher than the State’s average.

¶ 50. The hearing officer stated that while Hughes’s and the Board’s “projections seem high, they finished third and fourth in this category, respectively.” That is, Hughes finished in third place, receiving only one more point than the Board in this category. Rather than find that all four applicants were substantially noncompliant and could not be considered by the MSDH, the hearing officer placed all the applicants on an even playing field, awarding each applicant a score of 1 in this category.

¶ 51. Armstrong testified that it is virtually impossible to accurately project the Medicare utilization rate for a nursing home before it begins operation. According to Armstrong, the MSDH accepts Medicare utilization projections as long as the projections are submitted and sworn to by each applicant.

¶ 52. The chancery court found that “the same fallacy exists with all of the applications, and it appears that all of the applicants thought the Department would just accept whatever figure they submitted.” The chancery court agreed with the hearing officer that all of the applicants should be treated the same.

¶ 53. The chancery court found that it was improper for the MSDH to accept the unsupported figures submitted by Hughes. Based on the fact- that both Hughes and the Board submitted Medicare utilization rates far above the State’s average and the fact that both applicants were provided the same score in this category, this Court finds that the chancery court did not err in agreeing with the hearing officer’s decision to treat each applicant the same. The alternative to giving each applicant the same score would result in no long-term nursing home being built in Attala County. Since each of the applicants was awarded the same score, we find this issue to be without merit.

5. Certification and Agreement

¶ 54. The Board contests the fact that Hughes did not certify the supplemental information to the original application that was filed. However, Armstrong’s testimony established that the MSDH does not require that supplemental information have additional certification. Hughes’s original application contained a certification as required for submission of a CON application. Armstrong testified that “[t]he additional information becomes the application in addition to what was originally filed.” Armstrong testified that he had no knowledge of any requirement that a certification be sent with the additional information if the applicant is later required by the MSDH to submit supplemental information.

¶ 55. The Board also argues that Hughes’s application did not contain a signed agreement that he would not transfer ownership of the facility for three years. The MSDH reduced Hughes’s score by one point for the agreement even though Hughes’s application contained a separate unsigned written, agreement not to transfer. The chancery court found that it was whimsical for the MSDH to deduct this point from Hughes’s score.

¶ 56. This Court finds that the chancery-court did not err in not allowing the deduction of one point from Hughes’s score for failing to sign the agreement. As stated by the chancery court, the minor alterations of the ranking scores had no effect on the overall ranking of the applicants.

III. Disclosure on MSDH’s Website

¶ 57. The Board argues that Hughes received an unfair advantage because the MSDH disclosed the Board’s capital expenditure on its website. The information was disclosed as part of the MSDH weekly CON report on June 1, 2001. The Board contends that the MSDH’s decision to overlook the disclosure was arbitrary and capricious.

¶ 58. Hughes testified that he prepared his projected capital expenditure numbers and gave those numbers to Davis to be included in the application sometime around the 23rd, 24th or 25th of May [2001]. Hughes testified that he never altered his capital expenditure numbers from the time he turned them over to Davis. Barnett testified that he did not see any significant discrepancy between the capital expenditure numbers submitted by Hughes and those used by Davis. The Board failed to prove that the numbers were altered.

¶ 59. In addition to the Board’s failure to prove that Hughes actually used the disclosed information to alter his projection, the Board’s argument is also contradicted by Armstrong’s testimony. When questioned about what kind of study he conducted after learning that the capital expenditure information had been disclosed, Armstrong stated that the rankings of the factors that might have been affected by the disclosure were removed from consideration to see if the end result would have changed. Specifically, Armstrong stated:

The thought that I had was that, well, we’ll do the comparative analysis using all 10 factors and then we’ll take out two. We’ll exclude the capital expenditure and the cost per bed and see how that affects the rankings of each of the facilities.
And the conclusion that we reached was that of those people who disclosed their capital expenditure there was no change whatsoever in the rankings regardless of whether you used 10 factors or eight factors.

¶ 60. In upholding the decision of the hearing officer and the SHO, the chancery court stated:

The Department seems to acknowledge that revealing details of Attala Care’s bid on its internet site before Mr. Hughes submitted his full proposal was improper. The evidence reveals that because of this concern, the Department made a limited reevaluation of the proposals for the Attala County project as well as other counties and gave consideration to two of the factors that might have been affected by the data that was put on the website. Mr. Armstrong testified that even with these factors deleted from the rating process, Mr. Hughes still had the best rating and that the elimination of these two factors did not change the ranking in any other projects that he reevaluated. There was also evidence that Hughes made no change in the proposal that he planned to submit after Attala County’s data was posted on the website. Whether the action of the Department in posting the data on its website had sufficient impact on the bidding process to invalidate it is a fact issue. The hearing officer and the State Health Officer both found it did not sufficiently impact the process to invalidate it, and there is substantial evidence to support this conclusion. There is no evidence that the availability of the data caused Hughes to change his data, and without such evidence, the Court cannot override the decision of the SHO in this area.

¶ 61. This Court finds that there is no basis to reverse the decision of the chancery court affirming the decision of the hearing officer and the SHO. This issue is without merit.

CONCLUSION

¶ 62. We find that the MSDH did not act arbitrarily or capriciously, or outside its authority, or violate any vested constitutional rights. The record also shows that the decision of the MSDH is supported by substantial evidence. Therefore, we affirm the judgment of the chancery court affirming the decision of the hearing officer and the State Health Officer to award of the certificate of need to Garry V. Hughes d/b/a the Kennington.

¶ 63. AFFIRMED.

PITTMAN, C.J., SMITH AND WALLER, P.JJ., COBB, CARLSON AND DICKINSON, JJ„ CONCUR. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.

      . The hearing officer adopted verbatim Hughes’s proposed findings of fact, .conclusions of law and recommendation, and two days later, the State Health Officer (SHO) adopted verbatim the hearing officer's report. The chancery court stated in its memorandum opinion and judgment that it was aware that the findings of fact and conclusions of law signed by the hearing officer were adopted verbatim from those prepared by Hughes’s counsel. Therefore, the chancery court applied a "heightened scrutiny” and "analyzed such findings with greater care,” citing Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995); OmniBank v. United S. Bank, 607 So.2d 76, 83 (Miss.1992); Greenwood Utils, v. Williams, 801 So.2d 783, 788 (Miss.Ct.App.2001).

      . The hearing officer adopted verbatim Hughes’s proposed findings of fact, conclusions of law and recommendation, and two days later, the SHO adopted verbatim the hearing officer's report.

      . Attala Health Care finished in second place and Sentry finished in third place. However, these two did not appeal.

      . The Board contends that Hughes was not the actual applicant to receive the CON. However, this argument is devoid of any merit. Armstrong’s testimony clearly stated that Hughes would be the owner of the facility applying for the CON. The record does not reflect this issue was addressed by the chancery court.


author: CHANDLER, J.,

text:
    Derrick Leon STONE a/k/a Derrick Andre Stone, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01019-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2003.
    Rehearing Denied March 16, 2004.

      Jack R. Jones, Southaven, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MCMILLIN, C.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On June 21, 2002, in the Circuit Court of DeSoto County, Derrick Stone was convicted of grand larceny and theft of a motor vehicle. He appeals asserting that the circuit court erred in: (1) denying his motion for a JNOV or new trial, (2) denying his motion to sever the two crimes for which he was indicted, (3) denying his motion for a mistrial after testimony going to prior bad acts, (4) allowing testimony concerning his preliminary hearing, and (5) denying a requested circumstantial evidence jury instruction.

FACTS

¶ 2. Sergeant Kimmons Gray with the Hernando Police Department testified that during the night of July 5th, 2001, he was on patrol in downtown Hernando where there had been recent burglaries. He saw lights from a vehicle backing up on the property of Baker and Howell Equipment Company. So, he dimmed his own lights and drove to investigate. He saw three men attempting to detach a trailer from a pickup truck. He approached within thirty feet of them. They appeared to notice his approach, so he turned on his lights which allowed him to observe all three men. The men ran, and Sergeant Eim-mons radioed for assistance.

¶ 3. Officer Brad Chism of the Herpando Police Department testified that he and his police dog assisted in the search for the fleeing men. As they searched, he and the police dog encountered Stone, who was beneath a sheet of tin in the backyard of a mobile home. As the dog approached the sheet of tin, Stone emerged from underneath and struck the dog, and a fight between Stone and the dog ensued. During the fight, Stone attempted to break free of the dog while shouting “I’m not a murderer, I’m just a thief.” Ultimately, Stone was arrested and refused to give any further statement.

¶ 4. Hammond Scott, an employee of Baker and Howell Equipment, testified that the trailer belonged to his employer. Scott testified that it appeared as though someone had attempted to load one of his employer’s tractors onto the trailer, but the trailer had “jackknifed” and become stuck. Kenneth Townsend, the owner of the pickup truck, testified that the truck was stolen from his home in Memphis, Tennessee, sometime after 9:00 p.m. on July 5th, 2001.

1. MOTION FOR A JNOV OR A NEW TRIAL

¶ 5. 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. The trial court will not set aside a verdict unless the verdict would constitute an “unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983).

¶ 6. Stone’s argument that the evidence was insufficient to tie him to the theft of the trailer is obviously without merit. Without Stone’s statement that he was a thief, there is ample evidence to tie him to the crime. Sergeant Gray identified Stone as one of the individuals whom he had seen trying to detach the trailer from the pickup truck, and Scott testified that the trailer belonged to Baker and Powell Equipment, which had not authorized Stone to take it.

¶ 7. However, Stone additionally contends he had not participated in the theft of the truck in Memphis. Stone is correct in asserting that there was no direct evidence to link him to this vehicle theft. However, there was sufficient circumstantial evidence to support the conviction. Stone admitted that he was inside the stolen pickup, but he denied either participating in its theft or noticing that the truck’s steering column was broken to allow it to be driven without the key. This testimony in itself created a jury question as to whether Stone participated in the theft of the pickup truck. There is no merit to this assignment of error.

2.MOTION TO SEVER

¶ 8. Stone contends that the circuit court erred in denying his motion to sever the counts of grand larceny and auto theft. This contention is not based upon a trial involving multiple defendants. The record is clear that Stone was tried individually. But, Stone contends that the two thefts were unrelated, and no evidence connected him to the theft of the pickup truck.

¶ 9. A multi-count indictment is permissible if the offenses are based on the same act or transaction, or if the offenses are so connected together to constitute a single transaction or occurrence, or if the offenses constitute parts of a common scheme or plan. McCarty v. State, 554 So.2d 909, 914 (Miss.1989). See also Miss.Code Ann. § 99-7-2 (Rev.2000). In this case, the pick-up truck was stolen on the same night that Stone was seen attempting to detach the trailer from the truck’s trailer hitch. The evidence shows a common scheme to obtain a pickup truck with which to steal equipment from Baker and Powell Equipment. There is no merit to this assignment of error.

3.CIRCUMSTANTIAL EVIDENCE INSTRUCTION

¶ 10. Stone contends that the circuit court erred in refusing his proposed circumstantial evidence instruction. A circumstantial evidence instruction is only proper when the State’s evidence supporting a conviction is completely circumstantial. Cheeks v. State, 843 So.2d 87(¶ 18) (Miss.Ct.App.2003). In this case, no such instruction was warranted. Not only did the eyewitness testimony of Sergeant Grey put Stone at the scene of the theft of the trailer, Stone admitted that he was present at the scene of the crime. There is no merit to this assignment of error.

4.FAILURE TO GRANT A MISTRIAL

¶ 11. After Stone was apprised of his right to remain silent, he initially refused to communicate with the police, even to the extent of giving his name and address. During the direct testimony of a police investigator, Lee Hodge, the State asked whether the police were able to discover where Stone resided. Hodge responded, “[TJhey’ve had dealings with him in Ohio, Memphis — .” At that point Stone objected and requested a mistrial. The circuit court heard argument on the motion outside the jury’s hearing. While the circuit court denied the motion for a mistrial, it offered to give a cautionary instruction, which Stone declined. The circuit court also directed the State to elicit the identification of Stone without reference to any other criminal charges or arrests.

¶ 12. If a trial court sustains an objection to impermissible testimony, the decision to grant a mistrial is left to the court’s discretion. Hoops v. State, 681 So.2d 521, 527 (Miss.1996). In this case, Hodge told the circuit court that his testimony of prior “dealings” was in reference to a relative of Stone, who was also arrested in connection with these two crimes, and Hodge learned of Stone’s identity when investigating that other individual. As the circuit court noted, the jury had not explicitly heard testimony as to Stone’s previous charges. Moreover, in his own testimony, Stone testified that he had been in court on other charges. The trial judge did not abuse his discretion in denying the motion for a mistrial. This assignment of error is without merit.

5. TESTIMONY GOING TO THE PRELIMINARY HEARING

¶ 18. Stone asserts that the circuit court erred in overruling his motion to exclude the testimony of the municipal judge who presided at his initial appearance. Mississippi Rule of Evidence 605 precludes the testimony of a judge in a trial in which the judge is presiding. However, this rule does not preclude a judge’s testimony in subsequent proceedings concerning what occurred in a previous proceeding. Stewart v. Southeast Foods, Inc., 688 So.2d 733, 735 (Miss.1996). Moreover, even assuming that the circuit court should have excluded the testimony, which we do not, no error could have occurred. The State called the municipal judge to buttress testimony of police officers to statements against interest that Stone made. However, at trial, the municipal judge was not able to recall statements that countered Stone’s version of events. This issue is without merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF COUNT I UNLAWFUL TAKING OF AN AUTOMOBILE AND SENTENCE OF FIVE YEARS; COUNT II GRAND LARCENY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TO RUN CONSECUTIVELY TO COUNT I IS AFFIRMED. DESOTO COUNTY IS ASSESSED ALL COSTS OF THIS APPEAL.

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


author: BRIDGES, J.,

text:
    Margarita A. ARGUELLES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01039-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.
    Rehearing Denied March 16, 2004.

      Edmund J. Phillips, attorney for appellant.

      Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. Margarita A. Arguelles was convicted for possession of more than one kilogram of marijuana with intent to distribute on June 11, 2002, and sentenced to serve six years in the custody of the Mississippi Department of Corrections. From that conviction and sentence she appeals to this court. The issues are stated verbatim.

STATEMENT OF THE ISSUES

I. THE ABSENCE OF THE SIGNATURE OF THE FOREMAN OF THE GRAND JURY RENDERED THE INDICTMENT INVALID.

II. THE COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE ABOUT THE TWO PARCELS.

III. THE COURT ERRED IN DENYING APPELLANT’S MOTION FOR A DIRECTED VERDICT.

IV. AS TO APPELLANT THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

V. THE COURT ERRED IN DENYING APPELLANT’S CIRCUMSTANTIAL EVIDENCE INSTRUCTIONS AND IN GRANTING THE STATE’S INSTRUCTION ON BURDEN OF PROOF WITHOUT CIRCUMSTANTIAL EVIDENCE STANDARDS.

VI. THE COURT ERRED IN NOT GRANTING A NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED EVIDENCE.

FACTS

¶ 2. A parcel being sent to the home of Sixto Jose Ramirez and Margarita A. Arg-uelles was intercepted by postal inspector Robert Kay in El Paso, TX, on August 20, 2001. The parcel was addressed to “Sixto Rodrigue, 536 Longview Street, Apt 2, Forest, Mississippi, 39074,” Arguelles’s address, and was sent by “Roberta Ramirez, 8513 Alameda, - El Paso, Texas, 79907.” The parcel aroused Kay’s suspicions initially because of “the size of the box, the heavy taping around the box, [and] the way the names were written on the parcel.” Then Kay separated the box from the others to run initial address checks on it which- determined that there was “no good return address on the parcel.” Later that night the postal inspectors went to the stated return address in El Paso to inquire about the sender, Roberto Ramirez, and discovered the address was “phony.” On August 21, 2001, Kay contacted the post office in Forest, MS, and learned that there was a similar parcel already in Forest waiting to be delivered. It was addressed to “Sixto Rodriquez, 536 Longview Street, Apartment no. 2, Forest, Mississippi, 39074,” sent by “Roberto Ramirez, 8513 Pinion, El Paso, Texas, 79907.” Both parcels had the same addresses for the recipient, same street number for the sender but a different street name and there is a slight difference in the sender’s first name and the recipient’s last name.

¶ 3. Upon learning of the second parcel, Kay sealed the first in a numbered double pouch' and express mailed it to Jackson, Mississippi. Then Kay retrieved the second parcel from the post office in Forest himself and brought it to Jackson.' On August 27, 2001, postal officers requested the Hinds County Canine Handler, the deputy sheriff and the drug dog to inspect the parcel and the dog “alerted” to the parcels in question. Finally, on August 28, 2001, eight days from initial retention of the packages, they requested a search warrant for the parcel and it was granted. Upon opening the parcels the inspectors found approximately 8,500 grams of marijuana.

¶ 4. The Mississippi Bureau of Narcotics and Kay consulted with the Forest Police Department and with the Scott County Sheriffs Office and jointly decided to have a controlled delivery of the parcels by a postal inspector dressed up as a mailman while the team conducted surveillance of the residence the morning and night before delivery and during delivery. The parcels were outfitted with a device which let them track the parcels and notified the officers if the boxes had been opened.

¶ 5. Guy Robinson, the “mailman” who does not speak Spanish, testified that Arg-uelles parked on the street just after he . arrived, greeted him as if she had been expecting a package and helped him with the door since he had to make two trips. Both Ramirez and Arguelles were home when he was delivering the package and Robinson specifically announced the parcel was for Sixto Rodriquez but neither Arg-uelles nor Ramirez refused delivery.

¶ 6. After the delivery of the packages, the surveillance team observed both Arg-uelles and Ramirez put one parcel each into the trunk of a car. It was the same car Ms. Arguelles had driven earlier and parked on the street and then later moved across the lawn to the back door of the apartment: Mr. Ramirez took the car into town alone and parked near the post office and left for a few minutes. When he drove away the police followed him which finally culminated in a high speed chase on a local highway. Upon stopping the car, they arrested Mr. Ramirez and discovered the same parcels delivered by the postal inspector in the trunk surrounded by air fresheners and laundry detergent. Neither box was ever opened.

¶ 7. In a search of the car the officers found a Western Union wire transfer for $150 from Ms. Arguelles to Mr. Ramirez in El Paso dated four days before the packages were intercepted by postal inspector Kay. Then several officers returned to the apartment and asked Ms. Arguelles, in Spanish, for consent to search her apartment which she granted. In the apartment they discovered packaging foam peanuts similar to the ones used to package the two parcels in question.

¶ 8. Both Arguelles and Ramirez were prosecuted as co-defendants for possession but, were represented by separate counsel. It is from her conviction that Arguelles appeals.

ANALYSIS

I. IS THE INDICTMENT VALID EVEN THOUGH THE FOREMAN FAILED TO SIGN?

¶ 9. The indictment of Arguelles did not contain the signature of any member of the grand jury as required in Mississippi Code Annotated section 99-7-9. Arg-uelles argues the validity of an indictment is derived from its indorsement by the grand jury. Keithler v. State, 10 Smedes & Marshall 192,1 Mor. State Cases 403, 18 Miss. 192, 1848 WL 1977 (1848). However, the evolution of that requirement over the past one hundred and fifty years has made the requirement more procedural. Arguelles’ objection to this indictment is raised for the first time on appeal and since this defect is procedural in nature it “must be raised by special demurrer to indictment or it is waived.” Jones v. State, 356 So.2d 1182, 1183 (Miss.1978). The case of Fitzgerald v. State recently upheld that “technical and non-jurisdictional” issues regarding indictments are waived if not brought up in a motion to quash. Fitzgerald v. State, 754 So.2d 613, 617 ¶ 19 (Miss.Ct.App.2000).

¶ 10. In reasoning that procedural, non-jurisdietional matters cannot be raised for the first time on appeal this Court finds this issue is waived.

II. SHOULD EVIDENCE OF THE TWO PARCELS HAVE BEEN SUPPRESSED?

¶ 11. Arguelles contends that the postal inspector’s retention of the parcels for some length of time before requesting a search warrant was an unreasonable ' seizure of her property. The postal inspector’s delay in delivering the second parcel already in Forest was eight days but the delay for the first parcel, en route from El Paso, would be less. The State supports the trial court’s denial of the motion to suppress by defending the actions of the postal inspectors and offers that they had sufficient probable cause to retain both packages after the discovery of the first package in El Paso. Also, the State offers that the inspection by the drug dog on day seven was not the sole basis for probable cause in obtaining the search warrant.

¶ 12. This Court notes that at the trial level Arguelles attempted to suppress the admission of these packages into evidence on the basis of insufficient evidence to merit probable cause. The primary piece of evidence used -by the State to reach probable cause was an affidavit by inspector Kay which Arguelles objected to on the ground that it contained hearsay. In agreement with the State’s brief, this Court finds that the evidence presented to the magistrate in the affidavit along with proof of the drúg dog’s “alerting” to the package was sufficient probable cause to meet the totality of the circumstances test given in Jones v. State, 724 So.2d 427, 429(¶8) (Miss.Ct.App.1998). Under Jones, the magistrate must objectively have enough evidence for a reasonably competent magistrate to believe any hearsay evidence exists and can be found. The affidavit given to the magistrate by inspector Kay meets this standard.

¶ 13. However, in evaluating the issue appealed by Arguelles, the reasonableness of the detention of her personal property by the United States Postal Service depends on the facts and circumstances in each particular case. Arguelles cites to two United States Supreme Court cases, one where a ninety minute detention of luggage at the Miami Airport was found to be unreasonable and another in which a twenty-nine hour delay of mailed parcels before obtaining a search warrant was found to be reasonable under the circumstances. U.S. v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); U.S. v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). The Van Leeuwen case did not establish a twenty-nine hour limit on postal detentions but determined that the delay was reasonable based on “the nature of the mailings, their suspicious character, the fact that there were two packages going to separate destinations.” Id. at 253, 90 S.Ct. 1029.

¶ 14. The State did prove adequate probable cause existed for the issuance of the search warrant however, it did not offer any evidence as to the reasonableness of the delay in issuing the warrant; neither inspector Kay’s affidavit given to the magistrate who issued the search warrant nor Kay’s testimony gave an accounting of what happened from August 21, 2001, when he discovered and stopped delivery of the second package and had the first sent to Jackson, to August 27, 2001, when he contacted the Hinds County canine handler.

¶ 15. . The detention of the second package for eight days without a search warrant would probably violate the reasonableness test for detention of mailed parcels as set out in Van Leeuwen. However, this is not sufficient grounds for reversal for two separate reasons. One is the common procedural bar that since this issue was not objected to at the trial level it is not reviewable on appeal. Williams v. Williams, 810 So.2d 613, 615 (¶ 9) (Miss.Ct.App.2001). The second reason is that if Arguelles was convicted for possession only of the marijuana found in the first package and not convicted of the cumulative weight of both packages she would be required to serve a sentence of four to sixteen years. The sentence she received of six years is within the statutory limit.

¶ 16. Therefore since the issue preserved for appeal was the sufficiency of probable cause and not the unreasonable detention of the packages and since Arg-uelles’ sentence was within the statutory limits regardless of whether she was convicted for possession of one or both of the packages the ruling of the trial court should be affirmed.

III. SHOULD APPELLANT HAVE BEEN GRANTED A DIRECTED VERDICT?

IV. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 17. Arguelles challenges both the trial court’s denial of her request for a directed verdict and its denial of her motion for a new trial. The State argues that it sufficiently met its burden of proof in order to prevail on these motions.

¶ 18. The standard of review for directed verdicts is well established in Mississippi. The court “considers the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997) (quoting Sperry-New Holland v. Prestage, 617 So.2d 248, 252 (Miss.1993)).

¶ 19. In the State’s case in chief it introduced evidence that Arguelles expected the package, loaded the package into the trunk of the car and that her home contained similar packing material to that in the parcels. This was sufficient evidence upon which a jury could báse its verdict. The trial judge accurately concluded the State had met its burden and the motion for directed verdict was properly denied at the trial level.

¶ 20. Reversal of the trial court’s denial of her motion for a new trial will only be granted if the denial amounts to an abuse of the court’s discretion. Steele, 697 So.2d at 376 (collecting authorities). A new trial will not be granted unless the verdict is contrary to the overwhelming weight of the evidence and allowing it to stand would cause an unconscionable injustice. Whitten v. Cox, 799 So.2d 1, 13(¶ 26) (Miss.2000) (collecting authorities).

¶ 21. The State had the burden of proving Arguelles possessed illegal narcotics. Under this test for constructive possession the State must prove that the drugs in the parcels were subject to Arguelles’s “dominion or control.” Campbell v. State, 566 So.2d 475, 477 (Miss.1990). Evidence was introduced by the State regarding Arg-uelles’ handling and receiving of the parcels and this was sufficient evidence to meet its burden of proving constructive possession. The State met its burden of proof and there was no abuse of discretion in the trial judge’s denial of a new trial.

V.SHOULD APPELLANT HAVE BEEN ALLOWED A CIRCUMSTANTIAL EVIDENCE INSTRUCTIONS?

' ¶ 22. Arguelles asserts that attempting to prove constructive possession of the marijuana by her requires a circumstantial evidence instruction since “proof of constructive possession is by its very nature circumstantial.” Burnham, v. State, 467 So.2d 946, 947 (Miss.1985) (citing Henderson v. State, 453 So.2d 708.(Miss.1984)). The State offers that a circumstantial evidence instruction is not required unless the evidence offered on an issue is “wholly circumstantial” Starks v. State, 798 So.2d 562, 565(¶ 10) (Miss.Ct.App.2001) (quoting Keys v. State, 478 So.2d 266, 267 (Miss.1985)). In Sullivan v. State, the court found that “the existence of any direct evidence eliminates the need for a circumstantial evidence instruction.” Sullivan v. State, 749 So.2d 983, 992 (¶ 21) (Miss.1999).

¶ 23. Evidence that Ms. Arguelles received the parcels and loaded one parcel in the trunk of a car she had been previously driving is sufficient direct evidence to eliminate the need for a circumstantial evidence instruction; therefore, the trial judge acted within his discretion in refusing the jury instruction.

VI. SHOULD A NEW TRIAL HAVE BEEN GRANTED WITH NEWLY DISCOVERED EVIDENCE. ' .

¶ 24. After the verdict was issued in this case, Ramirez offered evidence .to the court that she was completely innocent of the charges and never had any knowledge of the drugs in the parcels. Arg-uelles did not cross examine Ramirez, her co-defendant represented by separate counsel. Ramirez testified, and was questioned on direct by his own attorney and then was cross examined by the State. It is Arguelles’ position that if she also had the opportunity to cross examine her co-defendant the additional evidence of her ignorance and non-involvement with the parcels would have come to light. The trial court denied Arguelles’ motion for a new trial on the discovery of new evidence.

¶ 25. The State asserts that the trial judge did not abuse his discretion regarding the granting of a new trial on this basis. The record does not reflect that Arguelles’ attorney asked to cross examine Ramirez and Arguelles does not claim she was denied this right during the course of the trial. The judge’s questioning of Ramirez after the verdict on this issue revealed there was no substantial bar to the discoverability of this evidence prior to the verdict other than that Ramirez did not Want to admit his own guilt.

¶ 26. Under Moore, a new trial is available if the appellant is able to prove the new evidence could not have been discovered with due diligence and the newly discovered evidence would probably change the results. Moore v. State, 508 So.2d 666, 668 (Miss.1987). This Court should rule on whether the trial judge abused his discretion in'not granting the new trial on the basis of this new evidence. Id. Arguelles has not shown that all due diligence was used in attempting to obtain the evidence before trial. Had she requested to cross examine Ramirez, in addition to the State’s cross examination and been denied that opportunity, then possibly she could assert that she used all due diligence. For this reason the trial courts denial of a new trial on the grounds of newly discovered evidence is affirmed.

¶ 27. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT OF CONVICTION' OF POSSESSION OF MORE THAN ONE KILOGRAM OF MARIJUANA WITH INTENT TO DISTRIBUTE AND SENTENCE TO SIX YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED-TO SCOTT COUNTY.

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