author: SOUTHWICK, P.J., for the Court. THOMAS, J.,

text:
    Edward Fred HOLBROOK, Jr., a/k/a Bubba, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01722-COA.
    Court of Appeals of Mississippi.
    Jan. 13, 2004.
    Rehearing Denied March 23, 2004.
    Certiorari Denied July 12, 2004.

      David Clay Vanderburg, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   SOUTHWICK, P.J., for the Court.

¶ 1. Edward Holbrook, Jr. was convicted of attempting a burglary, arson, and a murder. On appeal he alleges that his motion to suppress should have been granted, that venue was improper and that there was error in finding him to be an habitual offender. We find no error and affirm.

¶2. Holbrook and his wife Kathy Hol-brook were divorced in October 2001. After the divorce, Mr. Holbrook lived at Sen-atobia Lakes in Tate County, Mississippi. His former wife moved in with her sister, Sandra Beard, and later moved into her own place in Batesville, Panola County, Mississippi. Ms. Holbrook worked at her sister’s store in Batesville.

¶ 3. Tony Watts became acquainted with Edward Holbrook through their work. Watts also lived in Senatobia. At trial, Watts testified that Holbrook left a note for him at his home on November 16, 2001. In response to the note, Watts and his wife Tammy went to Holbrook’s home. Hol-brook told his visitors that he was divorced but that he loved his former wife and wanted her back. He also stated that his former wife’s sister was to blame for the divorce. Holbrook explained that he wanted to “rob and burn” his former sister-in-law Sandra Beard’s store. While the store was burning and attention was diverted, he then wanted to burn Beard’s home. Hol-brook asked Mr. Watts to help by driving him to Beard’s home and store. Holbrook showed Watts a spray container. He planned to use this container to spray the buildings with gasoline before he lit them on fire.

¶4. The men then took Mrs. Watts home. Holbrook and Watts then drove to Panola County. Holbrook pointed out the store that he wished to rob and burn. Holbrook then directed Watts to his ex-wife’s home. He said that he was going to set Ms. Holbrook’s car on fire and the fire would then spread to her house. He said that his former wife would have to escape the fire through her bedroom window. The two men then went to the sister-in-law’s home. Holbrook wanted to set fire to her home in order to kill her. After this tour, the two men went back to Hol-brook’s home.

¶ 5. When Watts returned to his own home at approximately 2:00 a.m., he told his wife what had happened. Watts called the Federal Bureau of Investigation later that morning. The FBI instructed Watts to notify local authorities. Watts discussed Holbrook’s plan with the Batesville Police Department. Watts explained that Holbrook planned to commit the arson that night. The police equipped Watts with a body wire. Once he went back home, Watts found a note from Holbrook requesting Watts to come to his home. Watts notified police and then went to Holbrook’s home.

¶ 6. After Watts arrived, Holbrook filled a sprayer with fuel and then tested it in his yard. Holbrook then put the sprayer and a black jug of gasoline in Watts’s vehicle. The two left for Batesville. As they were driving to Batesville, the fumes from the black jug became overwhelming. Holbrook threw the jug out of the car. The men then came upon a road block set up by the State Highway Patrol. The men went through the road block and then on to Senatobia. As they approached the interstate highway, local authorities stopped and arrested both men. The arrest took place in Tate County prior to the pair’s arrival in Panola County.

¶ 7. Watts’s description of the place in which the black jug had been thrown from the vehicle led to the jug’s recovery. Taken from Watts’s vehicle were the spraying device containing a little more than a gal-Ion of gasoline, gloves, and other items. Holbrook’s yard in Senatobia Lakes was found to be burned in one area. A test was conducted that established gasoline was used to start the fire. Mrs. Watts’s account of the notes left at her home and the conversation she witnessed between her husband and Holbrook corroborated her husband’s account of events.

¶ 8. One of Holbrook’s fellow Panola County Jail inmates, Jerry Brimmer, testified that Holbrook told him of his plans for robbery and arson. Brimmer quoted Hol-brook as admitting that he planned to burn down the Holbrook and Beard homes. Holbrook was found guilty of attempted burglary, attempted arson, and attempted murder. He was sentenced as an habitual offender to life imprisonment without parole.

DISCUSSION

1. Evidence seized by law enforcement officers

¶ 9. Holbrook argues that there was error when the trial court denied his motion to suppress evidence seized by law enforcement officers. Two separate searches of his home were conducted. Holbrook contends that the actual search warrants contained numerous mistakes. He further contends that there was no probable cause for issuance of the search warrants.

¶ 10. At the hearing on the motion, the justice court judges who issued the warrants testified. They had been told in sworn statements by officers about the underlying facts and circumstances, and from these determined that there was probable cause. However, the warrants that were issued were not completely accurate. Some of the blanks on the form warrant were left blank.

¶ 11. The errors in the search warrants are clerical and do not rise to the level necessary -to invalidate them. Williams v. State, 583 So.2d 620, 625 (Miss.1991). These warrants were issued after sworn statements were made to impartial judges; the judges found that probable cause existed. There was no confusion or prejudice to Holbrook caused by these clerical errors.

¶ 12. Holbrook claims that probable cause did not exist to support the issuance of the warrants. “Probable cause for issuance of a search warrant is present when facts and circumstance within the officer’s knowledge, or of which he had reasonable trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.” Hall v. State, 455 So.2d 1303, 1304 (Miss.1984). An appellate court determines whether the issuing magistrate had a substantial factual basis for the conclusion that probable cause existed. Lee v. State, 435 So.2d 674, 676 (Miss.1983).

¶ 13. Law enforcement officers first obtained a warrant to search for and seize a videotape of a conversation between Holbrook and his former wife, a tape that the defendant had played for Mr. and Mrs. Watts. We have little doubt that probable cause existed to believe that this tape existed, but regardless, the items seized as a result of that search warrant were never offered into evidence. A second warrant was obtained in order to search the Holbrook home concerning conviction records from Tennessee. Ms. Hol-brook informed officers that she had seen these papers at her home during her marriage. This was probable cause for issuance of the second warrant.

2. Venue in Panola County

¶ 14. The most significant issue on this appeal is the proper venue for an attempt to commit a crime when all the overt acts occur in one county and the planned but never completed crime was to occur in another county. Here, Holbrook resided in and was arrested in Tate County. However, the site of the fires he planned to start and the store at which the robbery was to occur were in Panola County. While venue would have been proper in Tate County, the State brought the case in Panola County. As we will explain, we conclude that, in most cases, charges may be brought in either the county in which the overt acts for an attempt occur or the county in which completion of the crime had been intended.

Constitutional provisions

¶ 15. The authors of the United States Constitution were sufficiently concerned about the location in which criminal charges are to be brought that the matter was addressed in two different sections:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

U.S. Const, art. Ill, § 2, cl. 3. This provision applies only to the operation of the federal judicial power under Article III. However, the Sixth Amendment to the Constitution also provides this:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law....

U.S. Const, amend. VI. Most of the Sixth Amendment has been found applicable to the states through the effect of the Fourteenth Amendment. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (jury trial); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (compulsory process and public trial); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) (speedy trial); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (confront witnesses); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (counsel). The venue (locale for charges and trial) and vicinage (locale from which jurors drawn) provision has not been found to be fundamental and has not been incorporated into state process.

¶ 16. Even so, the Mississippi Supreme Court held that the Sixth Amendment’s venue requirement applies to state prosecutions. Miss. Publishers Corp. v. Coleman, 515 So.2d 1163, 1165 (Miss.1987) (citing principally Gideon, 372 U.S. at 342, 83 S.Ct. 792, which only incorporated the right to counsel). The Mississippi court cannot make this part of the Sixth Amendment apply in other states’ courts, but it has the power to require application in Mississippi courts. See also Johnson v. State, 476 So.2d 1195, 1209-10 (Miss.1985) (assumes that Sixth Amendment venue applicable).

¶ 17. The Mississippi Constitution requires that in “criminal prosecutions, the accused shall have a right to ... a speedy and public trial by an impartial jury of the county where the offense was committed .... ” Miss. Const, art. 3, § 26 (1890). The Coleman decision likely should be read to mean that federal interpretations of the Sixth Amendment are to be consulted for understanding the state constitution. Indeed, the Mississippi Supreme Court has concluded that the venue rights under the two constitutions are “similar.” State v. Caldwell, 492 So.2d 575, 577 (Miss.1986).

¶ 18. Since the Sixth Amendment venue and vicinage rules have in a few Mississippi cases been found applicable to Mississippi practice, we should examine the federal caselaw. A frequently applied test for determining venue under the federal constitution is this:

a review of relevant authorities demonstrates that there is no single defined policy or mechanical test to determine constitutional venue. Rather, the test is best described as a substantial contacts rule that takes into account a number of factors — [1] the site of the defendant’s acts, [2] the elements and nature of the crime, [3] the locus of the effect of the criminal conduct, and [4] the suitability of each district for accurate fact finding. ...

U.S. v. Reed, 773 F.2d 477, 481 (2d Cir.1985) (brackets and numbers added.) This test must be modified somewhat in light of recent authority, as we will discuss.

¶ 19. The Reed court said that no debate existed that the “site of the defendant’s acts” would be a proper jurisdiction in which to bring charges. Id. The other elements of the four-part test “are also important, however, and often give sites other than where the acts occurred equal standing so far as venue is concerned.” Id.

¶ 20. In Reed, the charge was lying under oath during a deposition taken in San Francisco for a civil case that was pending in New York. “In the present case, the perjury outlawed ... must be in an ongoing federal judicial proceeding, or ancillary thereto, which may be pending in a district other than where the oath is taken.” Id. There were some practical reasons why venue should be in New York for perjury that occurred in California. “Where essential elements of a crime are related to the integrity of the proceedings of judicial tribunals in districts other than where the acts took place, for example, those tribunals should not be left to the generosity of prosecutors or judges in other districts to defend their powers.” Id.

¶ 21. On the third factor, which was the locale of the effects of the crime, the court found that many federal criminal statutes permitted charges to be brought in the district in which the effects were felt. Id. at 482. Mississippi Code section 99-11-19 is such an authorization under Mississippi law as will be discussed below. We will return to this issue, as it is applicable in the present appeal.

¶ 22. The final consideration in Reed was “the suitability of the district for accurate fact finding,” which would be determined by “scrutinizing the definition of the crime and the likely location of evidence of such crimes generally,” not the location of the evidence in the specific charges against the defendant. Id.

¶ 23. In Reed, the court found that the perjury could be charged either in New York or California. New York was appropriate for the California deposition perjury since “the locus of the intended effects of the alleged criminal conduct was in the Southern District of New York because the alleged perjury was intended to affect the outcome of an action pending there.” Id. at 483.

¶ 24. Reed has been influential in resolving venue issues:

Reeds analysis finds support in numerous federal lower court rulings that have held venue to be appropriate in more than one district, notwithstanding statutory verbs that might easily have been interpreted as pointing to a single situs for the crime. This group includes rulings under [ ] false statements provision ..., fraud provisions, and the prohibition against bail jumping. Elements of the Reed analysis also are found in state court rulings and state venue provisions.

WayNE R. LaFave, JeRold H. IsRael, & NanCY J. King, 4 Crim. PROC. § 16.2(d) (2d ed.2003) (footnotes omitted).

¶ 25. These authors point out that recent United States Supreme Court authority has qualified the Reed test, but the qualification leaves the venue of the effects of this crime as an appropriate one in which to bring charges. In one recent precedent, the accused was charged with a federal money-laundering offense in Missouri. United States v. Cabrales, 524 U.S. 1, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998). All the acts of the money laundering had occurred in Florida, but the money had allegedly been acquired through illegal drug activities that took place solely in Missouri.

¶ 26. The court first reaffirmed an earlier stated test: “the locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it.” Id. at 6-7, 118 S.Ct. 1772, quoting United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946). The venue statute discussed by the court stated that offenses “begun in one district and completed in another” may be “prosecuted in any district in which [the] offense was begun, continued, or completed.” Cabrales, 524 U.S. at 7, 118 S.Ct. 1772, quoting 18 U.S.C. § 3237(a). The problem for the court was that money-laundering was an accessory after-the-fact crime. The launderer did not need to be involved in the illegal conduct that created the funds in need of cleaning; all that was necessary was that the person seeking to remove the taint from the money be aware that they had been derived from specified unlawful activity. Id. at 7-8, 118 S.Ct. 1772. Therefore this defendant could not be prosecuted in the district in which the illegal fund was created. Cabrales was charged in a venue which had no connection to any relevant element of the crime.

¶ 27. The next year the Supreme Court elaborated on the Cabrales principles. The court defined the issue as being “whether venue in a prosecution for using or carrying a firearm ‘during and in relation to any crime of violence,’ ... is proper in any district where the crime of violence was committed, even if the firearm was used or carried only in a single district.” United States v. Rodriguez-Moreno, 526 U.S. 275, 276, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999). The nature of the offense involved both the carrying of a weapon and the committing of a crime of violence. Both are essential elements to be proven about the defendant’s conduct. The defendant began the kidnaping in Texas without a weapon, then drove his victim to New Jersey, then later moved with his victim to Maryland where he for the first time acquired a weapon. Texas, New Jersey, Maryland and every other state traversed in the kidnaping tour were proper districts for the prosecution. Id. at 281-82, 119 S.Ct. 1239.

¶ 28. The court in a footnote refused to rule on the issue of whether venue could be brought in the district in which the effects of the crime were felt.

The Government argues that venue also may permissibly be based upon the effects of a defendant’s conduct in a district other than the one in which the defendant performs the acts constituting the offense. Brief for United States 16-17. Because this case only concerns the locus delicti we express no opinion as to whether the Government’s assertion is correct.

Id. at 279 n. 2, 119 S.Ct. 1239. What the Supreme Court avoided we must confront. Here, the effects of the crime, if it had been successful, would have been felt in Panola County.

¶29. After Cabrales and Rodriguez-Moreno, the Sixth Amendment requires consideration of “the nature of the crime alleged and the location of the act or acts constituting it” in order to determine the proper venue for charges. The four-part test from Reed which includes examining effects would apply if the effect is part of the nature of the crime or of the acts constituting it.

Cabrales ... [along with Rodriguez-Moreno ], cast doubt on the continuing acceptability of the substantial contacts approach as broadly construed. In particular, the analysis of Cabrales would appear to reject establishing venue by reference to the locus of the effect where that effect is not made an element of the crime.

Wayne R. LaFave, JeRold H. Israel, & Nancy J. King, 4 Crim. ProC. § 16.2 (text accompanying notes 82.2 & 82.3) (emphasis added) (footnotes omitted). The authors went on to say that “Cabrales and Rodriguez-Moreno emphasized the need to look to elements of the crime in determining the nature of the crime.” Id. at text accompanying note 82.9. The crime before us has as a necessary element that there be an intended effect of an arson in a specific location. Applying the LaFave analysis of Cabrales, the locus of the effect of this crime therefore is proper for venue.

¶ 30. The State assumed that necessary evidentiary burden in the indictment. This arson was described in two counts as the intent to commit arson of the dwellings of two specifically named persons in Pano-la County. The intent to commit the arson of those specific structures was an integral part of the crime charged. When all that is committed are the overt acts of an attempt, acts that might independently be innocent of criminal content, an indispensable component of the attempt is that it was directed towards committing a specific crime that was blocked before completion. Thus to use the Cabrales terminology, the “nature of the crime alleged” required not just the overt acts in one county, but the purpose to which those acts were directed in the other county.

¶ 31. Consequently, even though Cab-rales narrowed the breadth of the Reed test, Holbrook’s case remains within the acceptable boundaries of constitutional venue. The effect in Panola County of this attempted arson is the sine qua non of the criminal nature of the acts that Holbrook committed, making the location of the effect integral to the crime and a proper venue for charges.

¶ 32. This principle is constitutional; it is also practical. The county in which innocent acts are performed may have a limited interest in prosecuting. It is the county in which the substantive crime would have been committed had it not be interrupted that would have the greater interest. Here, this would be Panola County rather than Tate County.

¶ 33. An example of the operation of this principle is in a Michigan case. The court found that a “majority of the United States Courts of Appeals ... have held that in obstruction of justice cases, venue is proper in the district where the court proceeding affected is pending.” People v. Fisher, 220 Mich.App. 133, 146-17, 559 N.W.2d 318, 324-25 (1996) (footnote omitted). “An act that has effects elsewhere that are essential to the offense is, in effect, committed in the place where the act has its effects.” Id. at 152, 559 N.W.2d at 327. That analysis applies here too. For obstruction of justice, where justice would have been obstructed is a proper venue. For attempted arson, the location of the structure is a proper venue. Cab-rales did not undermine using the venue of effects when they are an element of the crime. Rodriguez-Moreno, 526 U.S. at 279 n. 2, 119 S.Ct. 1239.

¶34. These cases are discussing the Sixth Amendment limits for federal prosecutions. As already pointed out, the Mississippi Supreme Court has held that an accused’s rights to a “public 'trial by an impartial jury of the county where the offense was committed” under the state constitution is “similar” to the rights granted by the Sixth Amendment. Cald-ivell, 492 So.2d at 577. There is no reason to conclude that the state constitution alters the requirements of the Sixth Amendment. Prosecution in Panola County satisfied both the state and the federal constitutions.

Mississippi statutes

¶ 35. Regardless of what the state or federal constitution might permit as venue for criminal charges, further limits might arise from statute. An independent issue then is whether there is a state statute that would allow charges to be brought in the county in which the structure to be burned is located, even when all the overt acts that were committed occurred in an adjacent county. The general venue statute provides that the “local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where committed.” Miss.Code Ann. § 99-11-3(1) (Rev. 2000).

¶ 36. An elaboration on the meaning of “committing a crime” comes from another statute:

When an offense is committed partly in one county and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun.

Miss.Code Ann. § 99-11-19 (Rev.2000). The Supreme Court in describing this statute said that the “legislature as early as 1857 enacted an exception to this general rule” of bringing charges in the county in which the crime was committed. Rogers v. State, 266 So.2d 10, 16 (Miss.1972). We take exception to labeling this an “exception.” “Clarification” is the clearer terminology. What it means to “commit an offense,” superficially a simple question, becomes more complicated upon understanding the varied situations in which the issue arises. Section 99-11-19 addresses those variations and does not create exceptions to the constitution. The helpful statutory language is that commission includes the “acts, effects, means, or agency” of the crime.

¶ 37. The elements of the crime of attempt are “1) an intent to commit a particular crime; 2) a direct ineffectual act done toward its commission; and 3) the failure to consummate its commission.” Burney v. State, 515 So.2d 1154, 1158 (Miss.1987). Watts’s testimony established Holbrook’s intent to start these fires. It also established that he had acted towards its commission. Holbrook had arranged transportation to Panola County and had purchased supplies to use in the arson. The crimes failed when he was arrested while still en route.

¶ 38. The acts of the crime up until it was thwarted in the attempt stage occurred in Tate County. The effects and perhaps the means of the crime had the arson been performed would have been in Panola County. The substantive crime of arson was never committed. Instead, the inchoate crime of an attempted arson occurred. An attempt to commit a crime requires overt acts beyond mere preparation for the crime, and further requires that the accused have failed to commit the substantive crime itself. Miss.Code Ann. § 97-1-7 (Rev.2000).

¶ 39. An attempt to commit a crime in which its completion would have to occur in one particular county raises the question that faces us today. Is the county in which the crime would have occurred but for its earlier interception a proper one under this statute in which to bring the charges for the attempt? The LaFave treatise again provides a useful explanation:

Common law rulings have found troublesome the application of the territorial principle to inchoate offenses. As to attempts, one view is that the attempt has the same situs as the completed offense would have had if the defendant were successful, so that attempted murder is committed at the place where the victim is missed rather than where the defendant does his act.

Wayne R. LaFave, Jeeold H. IsRael, Nan-Cy J. King, Criminal PROceduRE § 16.4 (2003) (footnotes omitted). Under this view, charges for an attempt to commit an arson in Panola County could statutorily be brought in Panola County. A similar approach was taken in another recognized criminal law treatise: “It is clear that such attempt is cognizable in the place where, if not interrupted, it would have been executed; and from the very nature of things, it must be cognizable in the place the preliminary overt acts constituting the attempt are committed.” 1 Wharton’s Criminal Law, at 317-18 § 234 (12th ed.1932) (footnote omitted, citing English common law cases).

¶ 40. There is nothing conceptually outrageous or bizarre in bringing charges in Panola County for attempting to burn a building in Panola County. For inchoate crimes, the identifiable effects are in the county in which the crime would have been committed. Knowledge that an arson was attempted, like knowledge that a murder or an assault was attempted, creates anxiety and notoriety in the county and neighborhood of the planned arson. To change the facts, if the failed attempt was directed towards burning an entire neighborhood, or a substantial structure like a church or public building, or murdering an entire family or blowing up an occupied school, the effects in the locale of the intended crime would be palpable. Downsizing the crime that was attempted also downsizes the effects, but it is logical to conclude that effects still exist. Like a court action in one state that was intended to be but never was obstructed by a perjured deposition taken in another state, it is the situs of the intended effects that may have the better claim to prosecution. Reed, 773 F.2d at 481.

¶ 41. This is not to say that fear created by crime is a sufficient effect to bring charges in any county in which substantial publicity about the crime is given. It does mean that when the locus of the intended crime is not in the county in which the overt acts of the attempt are committed, the county of the intended crime still has an acutely focused association with the attempt. This justifies concluding that there are effects in the latter county. In that sense, the conduct which the criminal laws of the state have been adopted to prevent has sufficient repercussions in the county of the intended effects that some part of the crime.can be said to have been committed there. In fact, the overt acts sufficient to prove the attempt are often innocent conduct, i.e., they may not themselves constitute a crime. Here, the Tate County overt acts of obtaining the equipment to be used for the arson and starting on the road to Panola County are criminal only because they were beyond mere preparation for committing a crime in Panola County. Therefore, the acts that were planned for Panola County are indispensable to the criminality.

¶42. Whether the target buildings in Panola County are seen as the effects or the means of the crime, there was the right under section 99-11-19 to bring the charges in Panola County. Consequently, we affirm the decision of the trial court.

3. Sentence as an habitual offender

¶ 43. Holbrook argues that the State failed to prove that he was an habitual offender. See Miss.Code Ann. § 99-19-83 (Rev.2000). Holbrook objected to the State’s evidence of his habitual offender status as hearsay and his objection was overruled.

¶ 44. Information concerning Hol-brook’s prior record was obtained pursuant to a search warrant. This information established that Holbrook had been convicted of two or more felonies in Tennessee on charges separately brought and arising out of separate incidents at different times, that he was sentenced to and served separate terms of one year or more in Tennessee’s penal institutions and that one of his prior convictions was a crime of violence, aggravated assault. Holbrook meets the definition of habitual offender under the statute.

¶ 45. At his sentencing hearing, Hol-brook asserted that since his past sentences were served concurrently, he never served time on his conviction for aggravated assault. The fact that his sentences were served concurrently does not erase the fact that he was given two separate sentences. Bogara v. State, 624 So.2d 1313, 1320 (Miss.1993).

¶ 46. Holbrook further claims that his indictment did not properly charge him as an habitual offender. That is incorrect. Count 5 of the grand jury’s January 2002 indictment charged him as an habitual offender.

¶ 47. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF CONVICTION OF COUNT I ATTEMPTED BURGLARY OF A BUSINESS, COUNTS II AND III ATTEMPTED ARSON, AND COUNT IV ATTEMPTED MURDER AND SENTENCE OF LIFE ON EACH COUNT AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SENTENCES TO RUN CONCURRENTLY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

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

THOMAS, J.,

Dissenting.

¶ 48. The majority finds the location of the intended effects is sufficient both constitutionally and statutorily to vest proper venue in Panola County. Because I disagree with this interpretation, I respectfully dissent.

Constitutional Issues

¶ 49. As the majority points out, the framers of the United States Constitution were sufficiently concerned with venue in criminal prosecutions to raise the point twice within that document. In both instances, the Constitution directs that criminal conduct be prosecuted in the jurisdiction in which the crime was committed. U.S. Const, art. Ill § 2, cl. 3, and amend. VI.

¶ 50. Courts have struggled with the definition of “committed” in this context, particularly in instances when elements of the criminal conduct occurred in more than one jurisdiction. In reaching its conclusions, the majority relies upon the Second Circuit case of United States v. Reed, 773 F.2d 477 (2nd Cir.1985).

¶ 51. Reed counsels that substantial contacts between the crime and a given jurisdiction based upon a balancing of four factors is a sufficient basis for constitutionally vesting venue in that jurisdiction. Id. at 481. Those four factors are: (1) the site of the defendant’s acts, (2) the elements and nature of the crime, (3) the locus of the effect of the criminal conduct, and (4) the suitability of each district for accurate factfinding. Id.

¶ 52. The difficulties with adopting this test are several. First, the progenitor of the Reed test, the Second Circuit Court of Appeals, has retreated from its use in all but a single class of crimes, those which may be classified as continuing offenses. United States v. Saavedra, 223 F.3d 85, 89 (2nd Cir.2000). In its analysis, the Second Circuit explained that when the elements of a crime occur wholly within a jurisdiction other than the one where prosecution is sought, the court must then determine whether the crime may properly be defined as a continuing offense. Id. If so, the Reed factors may be applied to determine whether prosecuting in this other jurisdiction would constitutionally offend. Id. The court also recognized the rule that with respect to venue, the constitutional mandate to prosecute where the crime occurred must be cautiously construed. Id. at 92. The court thus acknowledged that substantial contacts is of very limited use and not applicable in all circumstances.

¶ 53. The Second Circuit reached this conclusion after the Supreme Court handed down two venue cases following the Reed decision. The first was United States v., Cobrales, 524 U.S. 1, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998). There, the court reiterated the long-standing rule that constitutional venue must be determined from the nature of the crime alleged and the location of the act or acts constituting it. Id. The court found that Cab-rales could not be charged with money laundering in Missouri when all proscribed acts constituting the crime occurred in Florida. Id. at 8, 118 S.Ct. 1772.

¶ 54. The court specifically rejected the government’s argument that the crime of money laundering has as a necessary precursor, or element, that the funds requiring laundering derive from criminal activity and that activity had occurred in Missouri. Id. at 7-8, 118 S.Ct. 1772. The court also specifically rejected the argument that Missouri was a proper venue because of the impact on the local communities victimized by drug dealers. Id. at 9, 118 S.Ct. 1772. The court pointed out that if the offense had been a continuing one, Missouri would have a constitutional right to prosecute. Id. at 8, 118 S.Ct. 1772. With these points, the court defined some of the parameters of constitutional venue. Venue is proper in any location where the actual actions necessary to accomplish the crime charged occurred but if no actions were taken there, community impact alone is not sufficient to render venue constitutionally proper absent classification as a continuing offense.

¶ 55. The second Supreme Court decision of import was United States v. Rodriguez-Moreno, 526 U.S. 275,119 S.Ct. 1239, 143 L.Ed.2d 388 (1999). Handed down just nine months after Cóbrales, the court found venue in New Jersey proper for prosecution of violation of 18 U.S.C. § 924(c)(1), using or carrying a firearm during or in relation to any crime of violence. Id. at 282, 119 S.Ct. 1289. The defendant kidnaped the victim in Texas, transported the victim to New York, then New Jersey, then Maryland where the defendant obtained a gun and used the same to threaten the victim. Id. at 277, 119 S.Ct. 1239.

¶ 56. The court once again said the locus delicti must be determined by the nature of the crime charged and the place where the acts constituting it occurred. Id. at 279, 119 S.Ct. 1239. The court also helpfully defined “nature of the crime” as the conduct constituting the offense. Id. In other words, what actions does the criminalizing statute actually proscribe? In Rodriguez-Moreno, the prohibited activity was the use of a gun in the course of a violent crime. The substantive crime of violence was kidnaping, a continuing offense which only terminates once the victim is released. Id. at 281, 119 S.Ct. 1239. It did not matter the gun was not used at the crime’s inception. A gun was used at some point during the crime, thus, the prohibited activity occurred. Id. at 281, 119 S.Ct. 1239.

¶ 57. The Fourth Circuit cogently analyzed the import of these two cases as well as the status of the Reed test in United States v. Boivens, 224 F.3d 302 (4th Cir. 2000). In the absence of a statute designating venue, venue in a criminal trial is constitutionally limited to the jurisdiction where the essential conduct elements of the offense occurred. Id. at 302. Bowens reminds that the Supreme Court rejected the situs of precursor activity as proper venue, no matter how necessary to the accomplishment of the crime charged that activity may be. Id. at 309-10. These are “circumstance elements,” not “conduct elements” and only the latter is prohibited by a particular criminal statute and thereby subject to prosecution. Id. This would, of course, be different if the circumstance elements were crimes in and of themselves subject to additional prosecution.

¶ 58. In light of the Supreme Court’s strict adherence to the geography of the criminal conduct, the Fourth Circuit concluded that venue in the jurisdiction where the effects of the crime are felt is proper only when an essential conduct element is itself defined in terms of its effect. Id. at 310.

¶ 59. The Supreme Court cannot make it any plainer that for constitutional venue analysis, absent extremely limited circumstances, the location where the elements of the crime actually occurred is the only valid jurisdiction for prosecution. Community impact alone, even when actual and not merely potential as in the case before us, is not sufficient to grant constitutional venue in the affected jurisdiction. Given that no prohibited conduct occurred in Pa-nola County, Holbrook could not constitutionally be prosecuted there.

¶ 60. Even if the Reed test were viable in all circumstances, the majority’s application of it is flawed. “There is nothing in Reed which says that the effects of a crime alone may ever serve as an independent basis for venue when all other considerations properly point to another judicial district.” United States v. Bin Laden, 146 F.Supp.2d 373, 378 (S.D.N.Y.2001). Reed did not contemplate that consideration of only a single one of its factors would trump venue in opposition to the locus delicti. Id. Rather, there should be a majority of the factors in favor of the jurisdiction outside which the actual conduct elements occurred before prosecution there is constitutionally proper. Id. Bin Laden also points out a practical difficulty with the Reed analysis. All of the cases relied upon for finding effects of the crime a legitimate concern were based upon cases in which the criminal statute did, in fact, define the specific conduct elements of the crime in terms of its effect. Id. This explanation makes clear that prosecution in the jurisdiction where the conduct elements occurred must be defeated before it can be validly placed in another jurisdiction. The locus delicti must be outweighed by the application of the remaining factors or by statute:

Reed does not — -indeed could not — stand for the proposition that venue may properly be based where solely the effects of the crime are located.... [A]ny consideration of the putative external effects of [the crime] would require the court to base venue on just one factor and on a factor which is not even an element of the relevant criminal statute.

Id. at 380.

¶ 61. All agree that in the case before us, all of the actions required to complete the crime of attempted arson were completed in Tate County. If the Reed factors were actually applicable, the analysis would still point solely to Tate County for venue. Holbrook acted solely within Tate County, all of the elements of the crime were committed there, all of the law enforcement officers who would need to testify are in Tate County, any witnesses associated with the preparatory actions such as the purchase of the gasoline are in Tate County. The only thing that may be interpreted as favoring Panola County is that the intended “victim” lay within its borders. That is not enough. It is even less so when considering that Reed contemplates an actual effect, legally speaking, to have occurred, not merely the potential for an effect. This point is further discussed below.

Statutory Issues

¶ 62. A second ground upon which the majority bases its conclusion is a statute, Mississippi Code Section 99-11-19 (Rev. 2000). This section reads:

When an offense is committed partly in one county and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either county in which said offense was commenced prosecuted, or consummated, where prosecution shall be first begun.

¶ 63. The majority finds the word “effects” within this statute sufficient to vest valid venue in Panola County. I find this an overly broad interpretation of the language inconsonant with the precedents of this state and not in keeping with the purpose for which it was enacted.

¶ 64. The statute was enacted for the purpose of abrogating the common law rule that prosecution may only be had in the jurisdiction “where the offense was consummated or if the offense consisted of a series of acts, then in a county where one of the acts was in itself a complete crime.” Rogers v. State, 266 So.2d 10, 16 (Miss.1972). The statute allows, for instance, prosecution for murder in either jurisdiction when the mortal blow is struck in one county but the victim actually dies in another. Coleman v. State, 83 Miss. 290, 297, 35 So. 937, 938-39 (1904), overruled on other grounds.

¶ 65. It was this very fact pattern before the state supreme court when “effect” under the statute was first discussed:

Here the act was committed in one county and the effect produced in another. The crime was wholly completed in neither county, but partly in each. The mere striking of a blow is not murder. Its fatal effect must follow, to make the completed crime.

Id. at 298, 35 So. at 939.

¶ 66. This passage makes clear that “effect” under this statute refers to the outcome of conduct contemplated by the criminalizing statute. The federal cases discussed above speak of criminal statutes which make a particular effect a part of the essential conduct element of the crime itself. In other situations, the requirement that a certain effect be achieved in order to prosecute may or may not be inchoate but is unquestionably present. One cannot be guilty of murder unless a death occurs. One cannot be guilty of arson without a fire. There must be a particular effect, an outcome, before one can be guilty of certain crimes.

¶ 67. The crime of attempt has no such outcome requirement, inchoate or otherwise. To the contrary, the failure to produce a particular effect is an essential element of the crime of attempt: (1) the intent to commit a particular crime, (2) a direct ineffectual act done towards its attempt, and (3) the failure to consummate its commission. Edwards v. State, 500 So.2d 967, 969 (1986). There may be an effect in the sense of community fear or outrage but that is not a legal effect, it is a sociological one.

¶ 68. Our supreme court addressed a highly similar case to our own in Murray v. State, 98 Miss. 594, 54 So. 72 (1911). Murray rented land in Claiborne County from Vardaman, who took a landlord’s lien upon the cotton to be produced on the land. Id. at 600, 54 So. at 72. Instead of turning the cotton over to Vardaman, Murray transported it to Copiah County and there sold it to Kemp. Id. Murray was charged and convicted in Claiborne County for false pretenses in representing to Kemp he owned the cotton free and clear. Id.

¶ 69. Our supreme court reversed the conviction, holding that although certain facts unique to Claiborne County would have to be established in order to convict Murray of false pretenses in his dealings with Kemp, none of the acts constituting the crime itself occurred in Claiborne County. All such acts occurred in Copiah County and Copiah County alone had jurisdiction to try Murray. Id at 602-03, 54 So. at 73. All other events were “mere link[s] in the chain of evidence necessary to establish the case of false pretenses ....” Id. at 602, 54 So. at 73. This was so even though there had been an actual effect in Claiborne County — Varda-man was deprived of his property there, but this did not change the court’s decision. Instead, it pointed out there were a number of crimes Murray could have legitimately been charged with in Claiborne County, including theft. Id. at 601, 54 So. at 73. False pretenses just was not one of them and the effect was not the one contemplated by law. After all, Murray had been charged with defrauding Kemp, not Vardaman.

¶70. Throughout the history of Code Section 99-11-19, no court in this State has ever interpreted it to mean “effect” or “potential effect” as the majority does here, save perhaps one, discussed below. Although decided nearly a century ago, Murray, in analyzing Section 99-11-19, is completely in line with contemporary venue rules as established by the U.S. Supreme Court. Murray’s “links in the chain” are “circumstantial elements” in contemporary parlance. Murray fairly explains that “effect” means some outcome intended to be proscribed must occur in a jurisdiction before venue there may be proper.

¶ 71. The one possible exception to this general rule is Rogers v. State, noted above. In that case, the defendants recorded fraudulent deeds for land in Harrison- County. Rogers, 266 So.2d at 12. They then traveled to Hinds County and negotiated the sale of the land to the State Highway Department for the construction of Interstate 10. Id. at 13. All negotiations, fraudulent representations as to ownership, and payment of funds by the state occurred in Hinds County but the defendants were convicted in Harrison County of false pretenses. Id. at 17.

¶ 72. The supreme court affirmed the conviction, finding that although the only thing that had actually occurred in Harrison County was the deed recordation, the filing of the deeds commenced a chain of events which were essential to the ultimate perpetration of the crime charged. Rogers, 266 So.2d at 18-19. Almost as an afterthought, the court also found the deeds had the effect of artificially inflating land prices in Harrison County. Id. at 20. “The recordation of these deeds was the center from which the web was woven to wrongfully ensnare the State’s money ... The appellant cannot presently disassociate himself from his former transactions since they were ‘the acts, effects, means’ which ‘commenced’ the chain of events culminating in the accomplished crime.... ” Id.

¶ 73. This rationale is the same as that forwarded by the federal government in Cóbrales and which the Supreme Court found unconstitutional. Whatever acts, including criminal ones, occurred before those constituting the essential conduct elements of the crime charged cannot form the basis for venue. Rogers, already a suspect case because of its solo status as amongst similar cases in state law, is thus in conflict with the Supreme Court and of extremely limited precedential value.

Conclusion

¶ 74. Both federal and state interpretation of constitutional and statutory venue requirements have settled the method by which venue may validly be determined. The first step is to determine the conduct elements of the crime charged. Second, determine the geographic location(s) where those elements occurred. If more than one jurisdiction is implicated, venue in either is appropriate. In the event the offense is a continuing one, venue may be had in any jurisdiction involved in the ongoing crime.

¶ 75. I do not object to the utilization of the Reed factors in determining which of several possible jurisdictions would be best situated to prosecute a continuing offense, but I do object to the use of a single one of those factors to determine venue in opposition to the locus delicti. This was never intended to be the case. I also object to the entirely new and extremely broad context into which the majority places the word “effects” within the -meaning of § Section 99-11-19, a context which has been rejected by the Supreme Court and which is not in keeping with prior interpretations of the statute. For these reasons, I respectfully dissent.

¶ 76. Mississippi Code Annotated § 99-11-29 (Rev.2000) provides that when there is an acquittal “on the ground of variance between the indictment and proof,” the defendant may be tried again under a new indictment and that it is “the duty of the court to order the accused into the custody of the proper officer.” The Mississippi Supreme Court has held that when a conviction is overturned on appeal for improper venue, the accused should be bound over for the next grand jury in the appropriate county. Whitten v. State, 189 Miss. 809, 199 So. 74, 75 (1940). We should follow that precedent, reverse the Circuit Court of Panola County, and render judgment that Holbrook be bound over to the grand jury of Tate County.

KING, P.J., BRIDGES, LEE AND IRVING, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

      . That court has not recently addressed the question of the Reed factors in relation to venue in ongoing court cases. As it is not a concern in the present case, it need not be addressed here.

      . Examples include 18 U.S.C. § 1951, obstruction, delay, or affecting commerce through robbery, extortion or threat of violence; and 18 U.S.C. § 1503, influencing, intimidating, or impeding a witness, or influencing, obstructing, or impeding the administration of justice.


source: Caselaw Access Project

author: GRIFFIS, J., for the Court.

license: Public Domain

text:
    Nathaniel SIBLEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00762-COA.
    Court of Appeals of Mississippi.
    April 6, 2004.
    Rehearing Denied June 29, 2004.
    Nathaniel Sibley, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. After being indicted for capital murder, Nathaniel Sibley pled guilty to a lesser charge of murder. Sibley was sentenced to life in prison with all but forty years suspended. The circuit court denied Sibley’s petition for post-conviction relief, and Sibley now perfects his appeal. Finding no error, we affirm.

FACTS

¶2. On August 21, 1984, Sibley murdered Frank Walker, Sr., while engaged in the commission of a robbery. On October 15, 1984, Sibley was indicted by the grand jury on the charge of capital murder. On October 24, 1984, Sibley voluntarily entered a plea of guilty, with the assistance of counsel, to a lesser charge of murder. Before accepting Sibley’s plea, the circuit court judge informed Sibley that the murder charge carried only one penalty, life in prison. Sibley stated that he understood.

¶ 3. Accepting Sibley’s plea, the judge sentenced him to a term of life in prison and assured him that at some point he would become eligible for parole. The district attorney then made a recommendation that Sibley be sentenced to life with all but forty years suspended. The judge accepted this recommendation, thereby reducing Sibley’s sentence from life to forty years.

¶ 4. Sibley filed a petition for post-conviction relief in the circuit court. The circuit court denied the petition, and Sibley appeals asserting that he received ineffective assistance of counsel and an illegal sentence.

STANDARD OF REVIEW

¶ 5. “When reviewing a lower court’s decision to deny a petition for post conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Bank of Miss. v. Southern Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996). “However, where questions of law are raised the applicable standard of review is de novo.” Brown v. State, 731 So.2d 595, 598 (Miss.1999).

ANALYSIS

¶ 6. Sibley first asserts that he was denied effective assistance of counsel. To prevail on this claim, Sibley must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced him in such a way that he was denied a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The counsel’s deficiency is assessed by looking at the totality of the circumstances. Hiter v. State, 660 So.2d 961, 965 (Miss.1996). We, as an appellate court, apply “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Burns v. State, 813 So.2d 668, 673(¶ 14) (Miss.2001).

¶ 7. Sibley does not explicitly state why the counsel he received was ineffective. Before accepting Sibley’s guilty plea, however, the circuit judge asked Sibley if he was satisfied with his counsel. Sibley responded that he was satisfied. Moreover, Sibley pled guilty to murder, which usually carries a sentence of life in prison. His sentence was less. He was only sentenced to forty years. Accordingly, we find this issue to be without merit.

¶ 8. Sibley next contends that he was given an illegal sentence. Sibley received a more lenient sentence than required under the statute. By sentencing Sibley to forty years instead of life, the circuit judge gave Sibley a lesser sentence. Somehow, Sibley believes that he received a mandatory forty year sentence rather than a sentence of forty years with parole. Sibley simply misconstrues his sentence.

¶ 9. Sibley is eligible for parole and, in fact, we note that he has been before the parole board six times. While the exact reasons Sibley was denied parole are not evident from the record, it is not because he received a mandatory sentence. Therefore, we find this issue to also be without merit.

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

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


author: SOUTHWICK, P.J., for the Court.

text:
    John Curtis LEE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-00379-COA.
    Court of Appeals of Mississippi.
    June 22, 2004.
    Scott Watson Weatherly, Gulfport, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   SOUTHWICK, P.J., for the Court.

¶ 1. A Harrison County Circuit Court jury convicted John Curtis Lee of robbery. On appeal he claims error from the State’s introduction of color photographs, the failure to grant certain jury instructions, and the absence of sufficient evidence. We disagree and therefore affirm.

¶ 2. On November 9, 2001, William Bryant had just gotten paid three hundred dollars in cash as wages for his work. Bryant had worked for a landscaping company for twelve years. The employer had a practice of paying his twelve to fourteen member crew in cash from his apartment, a practice that might have been known by others. The work crew waited in the parking lot outside the employer’s apartment and were individually called to receive their pay. On this particular day, Bryant noticed some men who were not crew members waiting in the parking lot as well. He recognized one of them as a young man that he knew by the name of John. He did not know his last name. After getting paid, Bryant decided to walk to a local bar. John offered to walk with him.

¶ 3. As the two men walked towards the bar, John asked Bryant for a cigarette. As Bryant was getting the cigarette, John hit him in the face with a metal object. A scuffle ensued and Bryant was pushed into a ditch. John placed his knee in Bryant’s back, said “give it up,” reached into Bryant’s pocket and took the cash. After he took the money, two other men who knew Bryant came up and caused John to run away. He dropped the money, returned for it, then ran again.

¶ 4. Bryant walked one block to the police department to report the attack. An ambulance took Bryant to the hospital. There, a detective questioned Bryant and took pictures of his injuries. Bryant was able to tell the detective that his attacker was named John. The officer compiled a six-person photo line-up. Bryant identified John Curtis Lee.

¶ 5. At a January 2003 trial, Lee was convicted of robbery and given a seven year sentence.

DISCUSSION

1. Photographs

¶ 6. Lee claims that the lower court erred in allowing the admission of two photographs. First, Lee argues that the trial judge erred in allowing the introduction of a color photographic line-up. During discovery, black and white copies of the photographic line-up had been furnished to the defense. Lee states that the “colored photo of the lineup left no question that Mr. Bryant had circled the picture of the Defendant, John Lee Curtis, while the black and white photo was barely visible and left the issue in grave doubt.” He further argues that because the prosecution was allowed to supplement the photos on the morning of trial, over his objection, he was subjected to “unfair surprise and trial by ambush.”

¶ 7. At the hospital, the color photographs were shown to Bryant. After Bryant identified the robber, the detective made a black and white copy of the photographs so that Bryant could circle, date, and initial the Lee’s picture. The detective did not want writing to appear on the only color copy that was available. The black and white copy with Bryant’s circle, date, and initial was presented during discovery. The color photograph was presented on the morning of trial. At trial, Lee’s counsel was given the opportunity to compare this photograph with the black and white one that was produced during discovery. He had the option of requesting a continuance in order to avoid the consequences of “unfair surprise and trial by ambush.” The record reveals that he objected on the basis of a discovery violation, but there is no recorded request for a continuance. We find nothing for which a continuance would have been needed. The victim testified that he already knew Lee before the incident, and the identification was therefore not a meaningful issue.

¶ 8. Second, Lee claims that the judge erred in allowing the admission of photographs, presented on the morning of trial, depicting the injuries suffered by Bryant. The photographs were taken in the hospital emergency room as Bryant was receiving medical attention. For some reason, the color photographs were not discovered by the prosecutor until the day before trial. The photographs were admissible to show the extent of the victim’s injuries. One of the reasons the injuries were relevant was that the indictment charged that Lee had taken Bryant’s money “by violence to his person.” The photographs are not gruesome, as they show Bryant with a swollen eye, and blood and perhaps swelling on one side of his face. They pictorially confirmed Bryant’s testimony about his injuries. Lee did not on the record request a continuance because of the late discovery of the color photographs. There was a bench conference regarding counsel’s objections, and we do not know what was said. No abuse of discretion occurred in allowing the admission of the photographs depicting the injuries.

2. Jury Instructions

¶ 9. Lee claims that the lower court erred in failing to grant two jury instructions, D-3 and D-8.

¶ 10. Instruction D-3, the reasonable juror instruction, was presented by Lee as follows:

The Court instructs the Jury that a reasonable doubt may arise from the whole of the evidence, the conflict of the evidence, the lack of the evidence, or the insufficiency of the evidence; but however it arises, if it arises, it is your sworn duty to find the Defendant “Not Guilty.”

¶ 11. The State objected that D-3 was similar to instruction D-Ah

The Court instructs the Jury that under the law you do not have the right to convict John Curtis Lee upon mere suspicion. You may not convict John Curtis Lee just because there may be a preponderance of evidence against him or just because there may be a reason to suspect that he is guilty.
Suspicion, no matter how strong never rises to the dignity of proof beyond a reasonable doubt. Before you can find John Curtis Lee guilty you must be convinced solely upon the evidence presented during this trial that he is guilty beyond a reasonable doubt.

¶ 12. The judge provided an opportunity for Lee to choose between the two similar instructions. Lee chose instruction D-4 for presentation to the jury. Refusal to include a repetitive jury instruction is not error. Jackson v. Daley, 739 So.2d 1031,1037 (Miss.1999).

¶ 13. Lee fortifies his argument for inclusion of instruction D-3 by relying upon caselaw from Wilcher v. State, 455 So.2d 727 (Miss.1984). Lee argues that this Court has previously condoned a similar instruction in Wilcher. All Wilcher means is that either instruction might have been an adequate presentation of the issue. There was no need for both, however.

¶ 14. 'Next, Lee argues that the trial court erred in denying instruction D-8. He argues that this instruction was critical to his defense:

The Court instructs the Jury that each one of you has a duty in this case to decide the issues for yourself. If, after considering all the evidence, the instructions of the court, and after free consultation with your fellow jurors, you continue to have any reasonable doubt, then you must vote NOT GUILTY on each and every ballot of the Jury. Unless any reasonable doubt is completely removed from your mind by the evidence and the evidence only, you must never retreat from your opinion in this regard because of pressure from your fellow jurors, because of the lateness of the hour, or for any other reason whatsoever.

The trial judge did not allow instruction D-8 because he determined that it was repetitive of the Court’s instruction C-2:

The verdict of the jury must represent the considered judgment of each juror. In order to return a verdict it will be necessary that each juror agree thereto. In other words, all twelve jurors must agree on a verdict in this case. It is your duty as jurors to consult with one another and to deliberate in view of reaching an agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous, but do not surrender your honest convictions as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.

¶ 15. As we found with the previous instruction, the denied explanations were in their essentials presented in a different instruction.

3. Jury Verdict

¶ 16. Lee argues that the evidence presented at trial was insufficient to support his conviction and that the trial court should have granted his motion for a directed verdict, motion for judgment notwithstanding the verdict and a peremptory instruction. Each of these motions are raised to test the legal sufficiency of the State’s evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). We must view the evidence in the light most favorable to the State and accept as true all evidence which supports the verdict without weighing the credibility of the evidence in this Court. Id.

¶ 17. Lee argues that since Bryant was the only eyewitness to the crime, there was not enough evidence to support the conviction. However, the testimony of one eyewitness is adequate to sustain a criminal conviction. Holmes v. State, 660 So.2d 1225, 1227 (Miss.1995). The record reveals consistent testimony by Bryant that he knew who robbed him. We find approximately eight affirmative statements identifying the person who robbed him to be John. Further, the record reveals that Bryant first knew John as a child visiting in his place of residence. On the walk to the bar, there was nothing to distract Bryant’s attention from the person who robbed him. Bryant immediately walked to the police department after the robbery and told the officers that he had been robbed by John. The only uncertainty was that Bryant did not know John’s last name. The jury found Bryant to be credible. There is no basis for this Court to disturb that conclusion.

¶ 18. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF ROBBERY AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: IRVING, J., for the Court.

text:
    Andrea Carol Marshall HINSON, Appellant, v. Melvin HINSON, Appellee.
    No. 2003-CA-00239-COA.
    Court of Appeals of Mississippi.
    June 29, 2004.
    Barrett Blake Teller, Vicksburg, attorney for appellant.
    Edwin Woods, Jackson, attorney for ap-pellee.
    Before SOUTHWICK, P.J., LEE, IRVING and CHANDLER, JJ.
   IRVING, J., for the Court.

¶ 1. Andrea and Melvin Hinson were divorced in November 2002 on the ground of irreconcilable differences. The parties submitted to the lower court for resolution issues of property settlement, alimony, child support and custody. The chancellor divided the property between the parties and awarded Andrea periodic alimony. Unsatisfied with the chancellor’s rulings, Andrea filed a motion for a new trial, but the chancellor denied her motion. Aggrieved by this decision, Andrea appeals asserting that the trial court: (1) failed to make findings of fact or conclusions of law when dividing the marital property and awarding alimony, (2) failed to equitably divide the marital assets of the parties, and (3) should have awarded lump sum alimony.

¶2. Due to a lack of jurisdiction, we dismiss this appeal.

FACTS

¶ 3. Andrea Hinson filed a complaint for divorce in July 2001, in the Chancery Court of Warren County. In October 2002, the chancellor issued and signed a bench ruling granting Andrea and Melvin a divorce on the ground of irreconcilable differences. However, this ruling was not filed until November 2002. The chancellor granted the parties joint legal custody of the couple’s two minor children, with Andrea having physical custody and Melvin having reasonable visitations. Melvin was also ordered to pay child support in the amount of $1,300 per month and maintain health and life insurance for the children.

¶ 4. The marital assets of the parties were divided, and Andrea was awarded thirteen acres of property and one-half ownership interest in the couple’s house. Melvin was ordered to pay the monthly notes for his wife’s Chevrolet Tahoe and pay her $350 per month in periodic alimony. The bench ruling was not filed until November 4, 2002. The record does not reflect a final judgment. Unsatisfied with the bench ruling, Andrea filed a pleading styled, “Motion for a New Trial or to Alter or Amend the Judgment” on November 8, 2002. The chancellor entered an order overruling the motion in January 2003, and thereafter, Andrea filed a notice of appeal to this Court. Additional facts will be related during our discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. Although Andrea assigns three issues for resolution, we are unable to adjudicate this case on the merits due to a lack of jurisdiction. A thorough review of the record reveals only a bench opinion, and no final judgment. The bench ruling which the parties treated as a final judgment fails to comply with M.R.C.P. 58, which states that “[e]very judgment shall be set forth on a separate document which bears the title of ‘Judgment.’ ” The Mississippi Supreme Court has held that “a chancellor’s bench ruling is not final, but subject to modification by that same chancellor.” Grey v. Grey, 638 So.2d 488, 492 (Miss.1994). Therefore, “the chancellor’s decision is not the same thing as the court’s final judgment.” Id. “Only a final judgment is appealable.” Id. We must, therefore, dismiss this appeal because the chancellor’s bench opinion does not have the requisite finality to make it appealable.

¶ 6. Although we are unable to address the merits of this case because of the jurisdictional issue, we note that even if the chancellor had issued a final judgment, supported only by the bench ruling, we would still be unable to decide the merits of the case because the chancellor failed to make required findings of fact as to the basis for her ruling. She also failed to make a determination and valuation of the marital estate. Our supreme court has consistently held that a chancellor must support her “decisions with findings of fact and conclusions of law for purposes of appellate review.” Johnson v. Johnson, 823 So.2d 1156, 1160(¶9) (Miss.2002). Further, a chancellor’s “failure to make findings of fact and conclusions of law [is] manifest error requiring reversal on remand.” Id. citing Sandlin v. Sandlin, 699 So.2d 1198, 1204 (Miss.1997). The appellate court “must have these findings of fact because [it] cannot determine whether the chancellor abused his discretion until he provides a record of his determination of both parties’ nonmarital assets, of his equitable distribution in light of each parties [sic] non marital property, guided by the Ferguson factors, and, if necessary to do equity by an award of alimony.” Id. citing Johnson v. Johnson 650 So.2d 1281, 1287 (Miss.1994).

¶ 7. This dismissal is without prejudice to the rights of the parties to again pursue an appellate remedy after the chancellor has entered a final judgment and made the required findings of fact as mandated by Ferguson.

¶ 8. THE APPEAL FROM THE WARREN COUNTY CHANCERY COURT IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Larry Darnell SCOTT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-01012-COA.
    Court of Appeals of Mississippi.
    July 13, 2004.
    Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   SOUTHWICK, P.J., for the Court.

¶ 1. A Leake County Circuit Court jury convicted Larry Darnell Scott of armed robbery. On appeal, he contests the introduction of identification evidence. We find no error and affirm.

FACTS

¶ 2. In August, 2002, O.C. Crawford, a convenience store operator, saw two men in a car pull into the area of the store’s gas pumps. One of the men entered the store and stated that he wanted to purchase a dollar and fifty cents worth of gas and a pack of Newport cigarettes. At trial, Crawford identified the man as the defendant Scott. Crawford placed the cigarettes on the counter as Scott wandered around in the store. Other conversation briefly occurred, then Crawford turned his back to attend the pump control console. The purported customer then went behind the checkout counter and grabbed Crawford from behind in a bear hug. Scott then beat Crawford about the head and face. Crawford was ordered to turn around as Scott reached into his pockets and took a pocketknife and a billfold which contained forty-five dollars. Scott then asked Crawford where he kept his gun. Initially, Crawford refused to say. After being hit in the side, Crawford revealed where the gun was located. Scott picked it up, pointed it at Crawford, and demanded money. About one hundred and fifty dollars was taken from the cash register.

¶ 3. Scott tore the telephone from the wall, ran from the store and drove off. Crawford was able to give the police a description of the car, which was found abandoned soon after the robbery. Police found inside the car a pack of Newport cigarettes with blood stains and fingerprints on it.

¶4. Later on the day of the robbery, Arthur Earl Johnson, the man who had been in the car with Scott, contacted a detective with the Forest Police Department in adjacent Scott County. Johnson identified Scott as the person who beat Crawford. The next day Crawford identified the robber by choosing Scott’s photograph from an array produced by the Scott County Police Department.

¶ 5. At trial, Scott was convicted of armed robbery and sentenced to thirty years in the custody of the Mississippi Department of Corrections. He appeals.

DISCUSSION

¶ 6. Scott claims that the court erred in denying his motion to suppress Crawford’s identification of him. The photographs used in the array that was shown to Crawford had not been preserved. He claims that admitting the identification without the prosecution’s production of the photographs denied him due process.

¶ 7. The record reveals that the photographic array was disassembled without police making a record of which pictures were in it. Though that is not good law enforcement procedure since the reasonableness of photographic arrays are legitimate issues during a prosecution, there is no intimation in the record that the failure to retain the photographs was intended to prejudice Scott.

¶ 8. On appeal, Scott claims that the failure to preserve and, therefore to produce, the photographs from which the store clerk identified Scott was a violation of the process due him in this criminal prosecution. We examine these factors in reviewing the effect of the destruction of evidence:

(1) the evidence in question must possess an exculpatory value that was apparent before the evidence was destroyed; (2) the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; and (3) thé prosecution’s destruction of the evidence must have been in bad faith.

Byrom v. State, 863 So.2d 836, 854 (Miss. 2003).

¶ 9. As to the first element, there is nothing in this record to support that exculpatory potential existed in the array of photographs. Relevant both on the first and the second elements, the store clerk Crawford was examined as to the details of the photographic array, such as the similarity of the pictures, whether the photographs were all of individuals of the same race, and whether Scott’s picture was made to stand out in some way. There was no unfairness apparent in the array. This testimony removed concerns about the possible exculpatory nature of the photographic array, and was comparable though less definitive evidence about the nature of the pictures shown to Crawford.

¶ 10. The third element of a due process violation analyzes whether the prosecution’s destruction of the evidence was done in bad faith. Bad faith involves a planned design to deceive or mislead and is prompted by a sinister motive instead of an honest mistake. Bailey v. Bailey, 724 So.2d 335, 338 (Miss.1998). The record contains evidence of the procedure followed in assembling and presenting the array of photographs to Crawford. This testimony reveals protection against suggestiveness. It does not appear that disassembling the array, as a matter of routine, was done with any fraudulent intent. There is no indication that bad faith existed.

¶ 11. The overwhelming factor in finding no prejudice here is the substantial other evidence positively showing Scott’s guilt. This other evidence includes the abandoned car which was positively identified by the victim, Crawford, as the getaway car. -The car was reported stolen by Scott’s sister the night before the robbery. Inside the car was an unopened, bloodstained pack of Newport cigarettes with Scott’s fingerprints on the pack. Most telling, Arthur Earl Johnson, the man who was with Scott at the time of the robbery, testified as to what had occurred. Johnson stated that while waiting outside in the car, he heard a noise as if someone had fallen against the store window. When he looked around, he saw'Scott beating Crawford. The day of the robbery, Johnson called a police investigator to report what he had witnessed. Crawford testified as to the clear,, close, and continuous view that he got'of Scott during the crime. Crawford immediately identified Scott when shown the group .of pictures. Thus, had any unfairness existed in the .photographic array, Crawford’s identification was almost certainly unaffected.

¶ 12. There is no basis to believe that having the photographs would have been favorable to Scott in changing the outcome of the trial.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS ARE ASSESSED TO LEAKE COUNTY.

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


text:
    Steven Marshall YOUNG, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01941-COA.
    Court of Appeals of Mississippi.
    July 13, 2004.
    Steven Marshall Young, Appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS, and CHANDLER, JJ.
   SOUTHWICK, P.J., for the Court.

¶ 1. Steven Marshall Young pled guilty to manslaughter. His motion for post-conviction relief was denied by the Hinds County Circuit Court. Young appeals, but we find no error and affirm.

FACTS

¶ 2. In March 2000, Young pled guilty to manslaughter. He was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections with eight years suspended.

¶ 3. On June 17, 2002, Young filed a motion for post-conviction relief. He claimed that his conviction and sentence should be vacated because he had received ineffective assistance of counsel and had been coerced by police into giving a confession.

¶ 4. On August 26, 2002, the circuit court denied relief without an evidentiary hearing. The circuit court stated that after reviewing the relevant documents relating to the judgment “it plainly appears from the face of the motion, in the present case that the Petitioner, after careful deliberation is not entitled to the relief requested and the petition should be denied.”

¶ 5. On October 22, 2002, Young filed an appeal of the circuit court’s August 2002 order. He claimed that he had never received a formal order of dismissal from the circuit court. He further stated that he received “a plain sheet of typing paper stating no Judge’s name or reason for dismissal” after he made an inquiry with the court. In response to Young’s appeal, the State moved to dismiss it because Young had not complied with Rule 4 of the Mississippi Rules of Appellate Procedure. The Supreme Court denied the State’s motion. Young’s' appeal is now before this Court.

DISCUSSION

1. Confession

¶ 6. Young claims that his confession was coerced. He claims that the police coerced him into making a confession by threatening him with a long prison term if he did not make incriminating statements against himself; by refusing his request for an attorney on three occasions; by denying him a hearing before a judge who would have advised him that he had a right to remain silent and a right to counsel; by holding him without any contact with counsel, advisor, family, and friends; and by not allowing him to make a telephone call before questioning. Within this category, Young also claims that his speedy trial rights were violated because he was held one year and four months before he pled guilty in hopes of getting relief from confinement.

¶ 7. A voluntary guilty plea waives the defendant’s right to make the kinds of challenges that he now raises, including constitutional ones. King v. State, 738 So.2d 240, 241 (Miss.1999). A guilty plea creates a break in the chain of events which has preceded it in the criminal process. Battaya v. State, 861 So.2d 364, 366 (Miss.Ct.App.2003) (citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)). Young had the opportunity to raise these issues prior to entering his guilty plea. We can provide no relief for these issues raised for the first time in this appeal.

2. Ineffective Assistance of Counsel

¶ 8. Young claims that he received ineffective assistance of counsel. Among the complaints are that counsel made no investigation, did not file certain motions, and encouraged him to plead guilty. To prove a claim of ineffective assistance of counsel, Young must show (1) a deficiency of his counsel’s performance that was (2) sufficient to constitute prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a wide area of reasonable professional assistance and it is presumed that conduct of counsel was adequate. Moore v. State, 676 So.2d 244, 246 (Miss.1996).

¶ 9. Motions for post-conviction relief should contain affidavits that swear to the facts necessary for relief or assert how the claims will be proven. Miss.Code Ann. § 99 — 39—9(l)(d)(e) (Supp.2003). Young provided no evidence to support his claim of ineffective counsel.

¶ 10. We have no indication in the record of what occurred at the plea hearing. The order of the circuit court on post-conviction relief states that the relevant documents relating to the judgment were reviewed. A judge may dismiss “if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief....” Miss.Code Ann. § 99-39-11(2) (Rev.2000).

¶ 11. We find nothing in the record to support Young’s allegations or to require that the circuit judge provide an evidentia-ry hearing. Accordingly, we affirm.

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

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


text:
    Melissa Doris FAVRE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01958-COA.
    Court of Appeals of Mississippi.
    July 13, 2004.

      Tom Sumrall, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   SOUTHWICK, P.J., for the Court.

¶ 1. Melissa Doris Favre was found guilty of aggravated assault by a Harrison County Circuit Court jury. Favre appeals arguing that the trial court improperly excluded evidence crucial in her presentation of her theory of the crime. We find the exclusion of the evidence was within the discretion of the trial judge. Consequently, we affirm.

¶ 2. Steven Favre was attacked in the middle of the night in the trailer in which he lived. His wife, Melissa Favre, was convicted of the assault. Favre claims that the trial judge incorrectly excluded evidence that was pertinent to her case. She sought to establish that a third person or persons came into the trailer and attacked her husband. She relies on the evidence concerning DNA and blood spatter experts that was admitted that did not rule out the presence of a third party on the night of her husband’s attack. Favre sought to bolster this possibility by informing the jury that her husband was involved in the sale of drugs, therefore establishing someone else would have had a motive to attack him. The trial judge refused to allow this line of testimony and we agree that this was within his discretion.

DISCUSSION

¶ 3. Favre claims that, as a defendant, she should have been allowed to present her theory of what had happened to her husband. She claims that a third party must have entered the trailer and attacked her husband. She discovered him injured and sought help. Favre alleges that her husband was involved in the illegal drug business, which common knowledge confirms is a potentially violent occupation, and that someone else involved in that business may have been the person committing this crime. That is indeed a speculative possibility, but it would be simply one theory in the universe of possibilities of what happened to the victim. In order for evidence supporting this theory to be admitted, there must be some predicate. The trial judge heard the proposed testimony and found that it was inadmissible.

¶ 4. The defense made a proffer of evidence. There was evidence that the victim was known to sell cocaine and had previously been arrested for that offense. There was some information provided in the proffer that likely was inadmissible .hearsay, but there was also evidence that may well have been admissible if only some relevance was shown.

¶5. No one testified to having seen someone else at the trailer. No evidence of previous incidents involving violence by anyone involved in the drug trade against the victim was offered. The fact that DNA from more than the victim and the defendant was found was not evidence that other DNA was left behind at the time of the assault by some unknown person. The expert witness who described the DNA testing discussed that a large number of samples were taken, and only some were from blood. The DNA could have been left on surfaces and elsewhere in the trailer over an extended period of time and in many different ways. As the witness stated, since even skin cells and saliva contain DNA, a person “could deposit DNA just by touching something.”

¶ 6. For evidence to be relevant, it must have a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Hughes v. State, 735 So.2d 238, 270 (Miss.1999) (quoting Fisher v. State, 690 So.2d 268, 274 (Miss.1996) (citations omitted)). The decision at this trial that the evidence would have simply taken the jury into speculation as opposed to credible evidence of alternative theories of the crime was within the range of discretion afforded a trial judge.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


text:
    SHERWIN WILLIAMS and Pacific Employers Insurance Company, Appellants, v. Michael BROWN, Appellee.
    No. 2004-WC-00388-COA.
    Court of Appeals of Mississippi.
    July 13, 2004.

      Amy Lee Topik, Jackson, attorney for appellants.
    Leon Miller, Jack Benton Brenemen, attorneys for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   SOUTHWICK, P.J., for the Court.

¶ 1. Sherwin Williams and Pacific Employers Insurance Company appeal from a circuit court’s review and affirmance of a Workers’ Compensation Commission decision to order benefits for a total, permanent disability. We find no error and affirm.

¶ 2. Michael Brown worked as a carpet layer for Sherwin Williams. On September 23, 1999, as he was carrying a roll of carpet up a staircase and stretching it in, he felt sharp pain in his right hip. He reported the injury to his supervisor. Brown continued to work for approximately two weeks until his pain grew more intense and required him to seek treatment at the University of Mississippi Medical Center (UMC) on October 7, 1999. He continues to be treated there.

¶ 3. Over the course of his treatment at UMC, he was treated with epidurals and facet blocks which did not offer much relief. He was treated by at least four physicians, including Dr. Robert McGuire. Dr. McGuire performed an evaluation. He noted that Brown had no previous problems with his back during his employment with Sherwin Williams. After his range of treatment, Dr. McGuire stated that Brown should not return to his job as a carpet installer, gave him a ten percent disability to the body as a whole, and referred him to Dr. Michael Winklemann.

¶ 4. Dr. Winklemann instituted a vigorous physical therapy program. He concluded that Brown had a ten percent permanent partial rating. Brown was discharged with the following restrictions: (1) knee-to-waist lift fifty pounds on occasional basis; (2) waist-to-crown lift forty pounds on occasional basis; (3) ability to carry sixty pounds in both hands on occasional basis; (4) bending restricted to occasional; and (5) squatting restricted to rarely. Brown was advised not to return to work as a carpet layer.

¶ 5. David Greene, a vocational rehabilitation specialist, interviewed Brown. After a review of Brown’s work history, education, and medical records, Greene concluded that Brown was restricted to light or less than full medium duty work. He advised against Brown returning to work as a carpet installer. He considered that eighteen years of carpet laying was the relevant past work history. When that history was combined with minimal education, restrictions, and limited transferability of skills, employment in the relevant area would be difficult.

DISCUSSION

¶ 6. The Commission affirmed the findings of an administrative judge that Brown is permanently and totally industrially disabled. Decisions of the Workers’ Compensation Commission will be affirmed unless they are clearly erroneous and contrary to the overwhelming weight of the evidence. Barnes v. Jones Lumber Co., 637 So.2d 867, 869 (Miss. 1994).

¶ 7. The degree and permanence of Brown’s industrial disability is a question of fact to be proven by the evidence and facts as a whole. Miss.Code Ann. § 71-3-17(a) (Rev.2000). Disability is determined by actual physical injury and loss of wage earning capacity. Spann v. Wal-Mart Stores, Inc., 700 So.2d 308, 312 (Miss. 1997).

¶ 8. In determining whether there has been a loss of wage earning capacity, the Commission is to evaluate training, education, ability to work, failure to be hired elsewhere, pain, and other medical circumstances. DeLaughter v. South Cent. Tractor Parts, 642 So.2d 375, 379 (Miss. 1994). We have evaluations from Brown’s treating physicians, a therapist who performed the functional capacities evaluation, and a vocational rehabilitation specialist. The testimony from both treating physicians is substantially similar in that they agree that Brown can no longer install carpet and has a permanent, partial medical impairment rating of ten percent to the body as a whole.

¶ 9. Brown is a forty-five year old man with a tenth grade education. He has worked for the past eighteen years with Sherwin Williams in one job, which his physicians agree is now beyond his safe physical limitations. Brown states that he has pain from this injury. One of his physicians testified that he will probably have to take medication to control the pain for the rest of his life. Brown has not been able to perform any type of work since the injury. He stated that he cannot stand or sit for long periods of time and that he has bladder problems which require him to use the restroom frequently, sometimes two to three times in less than a one-hour period.

¶ 10. The collection of evidence indicates that Brown is quite limited in the jobs that he will be able to perform in the future. The vocational rehabilitation specialist stated that Brown would be limited to a light duty position in light of the restrictions. He had been performing heavy level work as a carpet installer. The transferability of his skills is questionable due to his educational level and experience. The vocational specialist concluded that Brown faces limited employment options after he performed an employment survey of available positions.

¶ 11. The reasonableness of a workers’ compensation claimant’s efforts to gain employment includes consideration of job availability and economics in the community, the claimant’s skills and background, and the nature of the disability. Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 828 (Miss.1991). Brown presented evidence of his employment search. He provided a job search list where he made inquiries at fourteen different locations including retail stores, grocery stores, fast food chains, and gas stations. He also testified in his deposition of other locations where he made inquiries. He stated that he completed applications after which he was asked why he no longer installed carpet. After he told potential employers of his disability and list of restrictions, he was told that they could not use him or that they were not hiring.

¶ 12. Since Brown made a prima facie case of a good faith search for employment, the burden shifted to Sherwin Williams to show that his efforts were not reasonable or were deceitful. Id. We find no error in the Commission concluding that Sherwin Williams did not meet this burden.

¶ 13. The evidence supports that Brown was entitled to permanent, total disability. We affirm.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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