author: _[¿DREW, J.

text:
    STATE of Louisiana, Appellee v. Margaret JOHNSON, Appellant.
    No. 38,001-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 12, 2004.

      Louisiana Appellate Project by G. Paul Marx, Lafayette, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, C. Sher-burne Sentell III, Assistant District Attorneys, for Appellee.
    Before BROWN, C.J., and WILLIAMS and DREW, JJ.
   _[¿DREW, J.

The state charged that Margaret Johnson committed fifteen instances of forgery, violations of La. R.S. 14:72, each count punishable by a fine of not more than $5,000, and imprisonment with or without hard labor for not more than ten years, or both. The parties entered into a plea bargain under which the defendant agreed to plead guilty to the first two counts and to make restitution to all the victims in exchange for the state’s dismissal of the remaining thirteen charges.

The court imposed consecutive sentences of ten years at hard labor on each count. Defendant filed motions for reconsideration of sentence through counsel as well as pro se, all of which the court denied. Both motions alleged merely that the sentence was excessive. Defendant now argues here that the sentences are excessive and that the court erred in directing them to be served consecutively. We find that the district court made an adequate record of its reasons for ordering the sentences to be served consecutively. Accordingly, we affirm.

In January 2002, defendant stole a checkbook from the house of an acquaintance, whose name she forged on fifteen separate checks. Defendant cashed the checks at various businesses in the Minden area, all on the same day. The checks ranged in value from $31 to $153 and totaled $870.53. Defendant confessed when confronted. The two checks to which she pled guilty were cashed by one victim in the amounts of $50 and $66.

When a defendant’s motion for reconsideration urges merely that the sentence is excessive, he is relegated only to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993). Constitutional [ 2review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992).

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

Prior to imposing sentence, the trial court reviewed a pre-sentencing (“PSI”) report, noting that the 41-year-old defendant had pled guilty to only two of fifteen forgery counts charged, cumulatively involving eight victims. Her lengthy criminal history reflected five theft convictions, plus convictions for possession of drug paraphernalia and forgery. There were additional previous arrests for simple burglary, accessory to burglary, three other thefts, two other forgeries, and possession of cocaine. Defendant denied several of the convictions, claiming they were from someone else’s record. She had pending charges of possession of cocaine and possession |sof a firearm by a convicted felon. Perhaps most damning, her parole had been revoked four times. The court found there was no justification or mitigation for her behavior, and that any lesser sentence would deprecate the seriousness of the offense. The court noted there was no expression of remorse from the defendant, who had not made any attempt to make restitution to the victims.

The record, including the immense benefit from the plea bargain and the defendant’s criminal history to which she admits, supports the imposition of maximum sentences in this case. However, when two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment normally shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883.

It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Robinson, 33,921 (La.App.2d Cir.11/1/00), 770 So.2d 868; State v. Coleman, 32,906 (La.App.2d Cir.4/5/00), 756 So.2d 1218, writ denied, 00-1572 (La.3/23/01), 787 So.2d 1010. Concurrent sentences arising out of a single cause of conduct are not mandatory, State v. Nelson, 467 So.2d 1159 (La.App. 2d Cir.1985), and consecutive sentences under those circumstances are not necessarily excessive. State v. Williams, 445 So.2d 1171 (La.1984); State v. Pickett, 628 So.2d 1333 (La.App. 2d Cir.1993), writ denied, 94-0348 (La.5/20/94), 637 So.2d 476; State v. Mills, 505 So.2d 933 (La.App. 2d Cir.1987), writ denied, 508 So.2d 65 (La.1987).

14Although La. C. Cr. P. art. 883 favors the imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, a trial court retains the discretion to impose consecutive penalties in cases in which the offender’s past criminality or other circumstances in his background justifies treating him as a grave risk to the safety of the community. State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461; State v. Feaster, 36,868 (La.App.2d Cir.3/5/03), 840 So.2d 675.

As this court has stated:

Among the factors to be considered are the defendant’s criminal history; the gravity or dangerousness of the offense; the viciousness of the crimes; the harm done to the victims; whether the defendant constitutes an unusual risk of danger to the public; defendant’s apparent disregard for the property of others; the potential for defendant’s rehabilitation; and whether defendant has received a benefit from a plea bargain.

State v. Coleman, 32,906 (La.App.2d Cir.4/5/00), 756 So.2d 1218, 1247-48. Citations omitted.

When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Green, 614 So.2d 758 (La.App. 2d Cir.1993). A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence of record. State v. Strother, 606 So.2d 891 (La.App. 2d Cir.1992), writ denied, 612 So.2d 55 (La.1993); State v. Thompson, 543 So.2d 1077 (La.App. 2d Cir.1989), writ denied, 551 So.2d 1335 (La.1989).

Here, the totality of defendant’s criminal history, even accepting her denials, is massive. The district court sufficiently articulated adequate | ¡^reasons for the sentences to be served consecutively. We affirm both the convictions and the sentences.

DECREE

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED.

      . Defendant claimed someone else with the same name committed the 1988 theft and burglary; the 1989 forgery, possession of drug paraphernalia, attempted misdemeanor theft, and simple burglary; and the 1990 theft. She conceded having convictions in 1990 for forgery, in 1994 for misdemeanor theft, and in 1977 for misdemeanor theft.


source: Caselaw Access Project

author:
WALLER, Justice, McRAE, Presiding Justice,
      COBB, Justice,

license: Public Domain

text:
    Stephanie TILLMAN, a Minor, by and Through her Legal Guardian, Theresa MIGUES, v. David SINGLETARY and Stacy Powe.
    No. 1999-CT-00686-SCT.
    Supreme Court of Mississippi.
    Nov. 13, 2003.

      Robert H. Tyler, Michael E. Bruffey, Biloxi, attorneys for appellant.
    Britt R. Singletary, Jackson, Tina Rose Singletary, Biloxi, attorneys for appellees.
   WALLER, Justice,

for the Court.

¶ 1. This action for negligence arises from a boating accident in Harrison County. The circuit court rendered partial directed verdicts in favor of each of the two defendants, and the jury found for the defendants on the remaining issues. A divided Court of Appeals affirmed in part and reversed and remanded in part, finding that a jury instruction on unavoidable accident was improperly given. Tillman ex rel. Migues v. Singletary, 2001 WL 268246 (Miss.Ct.App.2001). After granting certio-rari, we affirm in part and reverse and remand in part.

FACTS

¶ 2. Singletary and Powe were boating in Singletary’s 115-horsepower motorboat on a sunny weekend day of water activity on the busy Tchoutacabouffa River. Powe was Singletary’s employee, but this outing was not work related. After a stop for a social visit, Powe asked for and received Singletary’s permission to take the helm. Powe had never driven the boat, but had some prior experience driving powerboats. Powe set off with Singletary acting as his look-out and adviser.

¶ 3. As he navigated the river, Powe soon found himself trailing a pair of inner tube riders being towed by another boat some 200 yards ahead. The “tubers” fell off at the edge of a sharp bend in the river, and Powe stood at the helm to get a better view. The lead boat was turning left to pick up its fallen tubers, another boat was coming up from behind Powe, and jet skis were approaching from the opposite direction on his port side, all as Powe rounded the sharp bend in the river.

¶ 4. Singletary said he advised Powe to pass the lead boat on its right side, toward the river bank. Powe said he slowed the boat to 10 to 12 knots. As he attempted to go around the lead boat, the impact of the other boats’ wake caused his gamy knee to collapse. Powe fell into the boat, away from the steering wheel. Singletary testified that the force of these events almost threw him off the boat and pinned him against the passenger side of the boat. After the boat had been out of control for some fifteen seconds, Singletary managed to grab the steering wheel and shut down the motor. Obviously, there was no cut off switch to the engine attached to the operator. During all this, however, the boat had careened into the roped-off swimming area of a private lot, where it hit twelve-year-old Stephanie Tillman. The youth suffered multiple lacerations of her upper left arm and shoulder which left permanent scarring. Tillman said she saw Singletary at the controls of the boat before she was hit.

¶ 5. Powe testified he never saw the tethered wooden swimming platform at the heart of the swimming area. Singletary said he knew from experience that the swimming area was there, but it could not be seen by Powe from the direction his boat made the “blind curve.” Powe was given a sobriety test and registered a .025 blood alcohol level. Singletary was not tested for alcohol.

¶ 6. Powe’s knee had been injured three times. The first injury required surgery. Surgery was recommended after the second injury, but was not done. At the time of the accident, Powe was recuperating from a third knee injury which occurred eight months before. On that occasion Powe’s knee locked, causing him to fall to the ground.

¶ 7. Tillman sued Powe and Singletary for negligence in the operation of the boat. The complaint also charged Singletary with negligent entrustment of his boat to Powe. The circuit court rendered a directed verdict in favor of Singletary on the issue of negligent entrustment and in favor of both defendants on the issue of punitive damages. The circuit court submitted the defendants’ unavoidable accident instructions to the jury and refused to grant an instruction that would have allowed the jury to find Singletary liable for negligent supervision. The jury was given a plaintiffs instruction that both defendants could have been negligent by operating the boat at different times of the incident, but was also given a conflicting form of jury verdict that asked the jurors to determine which of the defendants was “the operator” of the boat on the day in question. The jury returned a verdict for both defendants, finding that neither defendant was negligent under the given instructions.

¶ 8. The Court of Appeals found that giving Powe an unavoidable accident instruction was reversible error because he operated a power boat on a crowded river with knowledge of his bad knee. It also affirmed the directed verdict for boat-owner Singletary on the issues of negligent entrustment and punitive damages. Further, Singletary could not be liable for negligent supervision, apparently because that theory was subsumed by negligent entrustment. All other issues were deemed moot for purposes of the appeal.

DISCUSSION

I. WHETHER UNAVOIDABLE ACCIDENT JURY INSTRUCTIONS SHOULD HAVE BEEN GIVEN.

¶ 9. An unavoidable accident is “an occurrence which was not intended, and, which, under all the circumstances, could not have been foreseen or prevented by the exercise of reasonable precautions.” Buford v. Riverboat Corp. of Mississippi-Vicksburg, 756 So.2d 765, 770-71 (Miss.2000) (quoting William L. Prosser, § 29, at 140 (4th ed.1971) (footnote omitted)). An unavoidable accident instruction should be used with caution. Buford, 756 So.2d at 770.

¶ 10. Here, the accident was avoidable. Even if Powe’s knee had not locked up, Powe was guilty of negligence because he was going too fast under the circumstances (a bend in the river, other boat traffic, and people on jet skis), and he did not have the boat under proper control. Furthermore he was operating the boat without using the kill switch. A reasonably prudent boat driver should have known that he would be encountering the wakes of other boats and should have operated the boat in such a manner that the boat was able to negotiate the wakes without incident. Singletary testified that the force of hitting the other boat’s wake almost threw him off the boat and pinned him against the passenger side of the boat. It is therefore clear that the boat was not under proper control.

¶ 11. Nor can Singletary benefit from an unavoidable accident instruction. As discussed in the next issue, the jury should have been instructed to consider whether Singletary was negligent in failing to supervise Powe properly.

II. WHETHER A JURY INSTRUCTION ON NEGLIGENT SUPERVISION SHOULD HAVE BEEN GIVEN.

¶ 12. Tillman offered, but was refused, a jury instruction on a theory of negligent supervision of Powe by Single-tary, the more experienced boatman. Sin-gletary was a more experienced boater, and he had a superior knowledge of the river and its riparian usage. Powe described Singletary as his “back seat driver.” Singletary advised Powe how to go around the lead boat.

¶ 13. A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: (a) in giving improper or ambiguous orders or in failing to make proper regulations; or (b) in the employment of improper persons or instrumentalities in work involving risk or harm to others; (c) in the supervision of the activity; or (d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control. Restatement (Second) of Agency § 213 (1958).

¶ 14. A party has the right to embody its theories of the case in the jury instructions provided there is testimony and/or evidence to support it, and if the instructions are conditioned upon the jury finding that such facts existed. Reese v. Summers, 792 So.2d 992, 994 (Miss.2001). There was a sufficient basis of facts for the granting of plaintiffs instruction P-5, the instruction on negligent supervision. The trial court erred in failing to put this instruction to the jury.

III. WHETHER IT WAS ERROR TO GRANT A DIRECTED VERDICT IN FAVOR OF SINGLE-TARY ON THE ISSUE OF NEGLIGENT ENTRUSTMENT.

¶ 15. Negligent entrustment is a theory of liability which may be summarized as follows:

One who supplies directly or through a third person a chattel for use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Sligh v. First Nat. Bank of Holmes County, 735 So.2d 963, 968-69 (Miss.1999).

¶ 16. Powe was twenty-five years old at the time of the accident. Although he had not previously driven Singletary’s boat, he testified that he had prior experience driving power boats, sailboats and john-boats. Evidence supporting the circuit court’s denial of the instruction was the fact that Powe had prior boating experience. Furthermore, no evidence was submitted which showed that Singletary had knowledge that Powe’s knee could buckle under. Clearly the foreseeability element is not met. Thus, Singletary cannot be held accountable under a theory of negligent en-trustment. We affirm the circuit court’s decision to direct a verdict in favor of Singletary on negligent entrustment.

IV. WHETHER THE CIRCUIT COURT ERRED IN GRANTING A DIRECTED VERDICT IN FAVOR OF SINGLETARY ON THE ISSUE OF PUNITIVE DAMAGES.

¶ 17. Tillman appealed the directed verdict on the issue of punitive damages insofar as Singletary was concerned. The basis for punitive damages is the testimony of a single witness that Singletary was staggering and red-eyed and appeared drunk after the accident. On cross-examination, however, this witness said that she got no closer than thirty-five feet to Sin-gletary. Powe and Singletary testified that Singletary had consumed a minimal amount of alcohol, and later witnesses offered substantiation during the presentation of defendants’ case.

¶ 18. Punitive damages may be recovered for willful and intentional wrong and for such gross and reckless negligence as is equivalent to willful wrong. A trial court’s decision not to send punitive damages to the jury will only be reversed upon a finding of an abuse of discretion. Hurst v. Southwest Miss. Legal Servs. Corp., 708 So.2d 1347, 1351 (Miss.1998). The circuit court did not abuse its discretion in directing a verdict for Singletary on the issue of punitive damages.

CONCLUSION

¶ 19. In summary, we affirm in part and reverse in part the Court of Appeals’ judgment. We affirm the circuit court’s grant of directed verdicts on the issues of negligent entrustment and punitive damages. We reverse the circuit court’s judgment and remand for a new trial consistent with this opinion as to both Powe and Singletary because the circuit court improperly granted the unavoidable accident instruction and improperly refused a jury instruction on the negligent supervision issue.

¶ 20. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

PITTMAN, C.J., EASLEY AND CARLSON, JJ., CONCUR. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED IN PART BY WALLER, J. COBB, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, P.J., AND IN PART BY WALLER, J. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

Concurring in part and Dissenting in Part.

¶ 21. While I concur with the majority as to Issues I, II, and IV, I dissent as to Issue III. However, I choose to specifically write as to Issue I which concerns the unexpected or unavoidable jury instruction. Simply put, the operator could have powered down and put the boat in neutral and waited for traffic ahead to clear and/or if he was required or instructed and actually had the “Mil switch” attached to his body, the “Mil switch” would have Mlled the motor. Singletary instructed Powe to go around the right of the lead boat instead of instructing him to power down. Based on the record and as found by the Court of Appeals, the unexpected or unavoidable accident jury instruction should not have been given. For this reason, I concur in part and dissent in part.

¶ 22. An unavoidable accident is one that could not have been foreseen or prevented by the exercise of reasonable precaution. Buford v. Riverboat Corp. of Miss.-Vicksburg, 756 So.2d 765, 771 (Miss.2000). Only if the accident is truly “unavoidable,” should an unexpected or unavoidable accident jury instruction be given. Id. (citations omitted). Such instructions should rarely be given. Pope v. Sanders, 217 So.2d 1, 3 (Miss.1968).

¶ 23. Based on the record, the accident is not one that could be characterized as “unavoidable,” since circumstances clearly show that the defendants could have foreseen and/or prevented the boating accident. Both Singletary and Powe had been drinMng. Powe had recurring knee problems which presented problems with his operation of the boat. Singletary knew of Powe’s knee problems. Singletary was very familiar with that area of the river and knew about the swimming area. There was no “dead man switch,” or cut off switch, for the engine on the boat. The majority even acknowledges that “there was no cut off switch to the engine attached to the operator.” Had there been a “dead man switch” then the injuries sustained by the plaintiff may have been diminished and disfigurement limited as the engine would have been Mlled and the propellor would have stopped within seconds after Powe lost control of the boat.

¶ 24. It is absurd to think that the fact that Powe’s knee bucMed would be enough for an unexpected or unavoidable jury instruction. Powe’s knee buckling is not an unforeseeable or unpreventable event, when both defendants knew of the knee problem but chose to disregard the effect it may have on Powe’s operation of the boat. Singletary clearly supervised Powe in the operation of the boat (as stated by the majority). Powe described Singletary as a back seat driver, and Singletary advised Powe how to go around the lead boat. He could have advised him to power down into neutral and await the departure of the lead boat. Powe worked for Single-tary. To say he did not know about his unstable knee condition would be a jury question as enough evidence was submitted to allow it. Further, the majority points out that the dead man switch was not attached to the operator, and Single-tary obviously did not instruct or require it to be attached. If the dead man switch was attached and the operator fell, the engine is immediately Mlled, and the boat would not have operated for 15 seconds and lacerating a girl in the swimming area. The propeller stops upon the activation of the Mil switch. A negligent entrustment instruction should have been submitted to the jury based on the evidence given. Likewise, it is “foreseeable” that a boat operator who is not properly equipped with a “dead man switch” may be involved in an accident such as this because he is unable to stop the engine once he has lost control of the boat. Clearly, the circumstances presented do not support an unexpected or unavoidable accident jury instruction.

¶ 25. Accordingly, I concur in part and dissent in part.

WALLER, J„ JOINS THIS OPINION IN PART.

COBB, Justice,

Concurring in part and Dissenting in Part.

¶ 26. I agree with the majority’s affir-mance of the decision of the circuit court and the Court of Appeals to grant a directed verdict to Singletary on the issue of negligent entrustment and to both Single-tary and Powe on the issue of punitive damages. However, I respectfully dissent as to the majority’s decision to reverse the jury verdict and remand for a new trial.

¶ 27. In my view, the Court of Appeals was correct in its decision to affirm the trial court’s decision on all issues as they related to Singletary. I respectfully disagree with the Court of Appeals majority’s decision to reverse and remand for a new trial of Powe, as I believe Chief Judge McMillin’s dissent correctly states the law as applied to the facts regarding Powe, and I adopt his opinion in that regard, as follows:

I respectfully dissent as to the majority’s decision to reverse the jury verdict in Powe’s favor because the jury was instructed on the principle of unavoidable accident. The unavoidable accident instruction was properly given, since it was both a correct statement of the law and was supported by evidence in the record. See Turner v. Temple, 602 So.2d 817, 823 (1992). Powe’s theory was that a sudden and unforeseeable collapse of his knee caused him to fall and lose control of the boat and that this was the proximate cause of the accident, as opposed to the various theories of negligence advanced by the plaintiff.
The majority finds the instruction improper, not because it incorrectly recites the applicable law, but because “Powe was aware of his history of reoccurring knee problems, but chose to operate the power boat on a crowded river while standing.” With respect to my colleagues in the majority, the question of whether, based on his prior medical history, Powe should have anticipated and taken greater precaution against a sudden physical collapse of his knee was a question of fact to be resolved by the jury, [emphasis mine] The instruction fully accommodated that proposition, since it required the jury to find as a matter of fact that the collapse was “unexpected and unforeseeable” before it could apply the concept of unavoidable accident. There was substantial evidence presented concerning the condition of Powe’s knee, but there was no evidence that he had ever before experienced a sudden collapse of the nature he described to the jury. On the evidence in this record, a finding of fact that Powe had no good reason to think that his knee would unexpectedly buckle and cast him away from the boat’s controls was entirely within the realm of the jury’s discretion. I can see no difference between this case and one where a person driving a vehicle suddenly faints or is subjected to a disabling seizure and loses control of his vehicle, resulting in an accident. In such circumstance, a sudden, unanticipated, and unavoidable event is the proximate cause of the accident and thus does not give rise to a claim for negligence.
The instruction properly recited the applicable law and conditioned a result favorable to Powe on the jury’s resolving the critical disputed issues of fact in his favor. That is apparently what the jury did. Whether that verdict was against the weight of the evidence is another matter, but that question cannot be resolved by considering the manner in which this jury was instructed. It was not error to submit Powe’s theory of the case to the jury through an unavoidable accident instruction.

Tillman ex rel. Migues v. Singletary, 2001 WL 268246, at *4, - So.2d - at - (Miss.Ct.App.2001) (McMillin, C.J., dissenting).

¶ 28. There is no question that this was a tragic accident, and Tillman suffered serious injuries. However, she presented her case before a Harrison County Circuit Court judge and jury, and in my view the judge properly granted directed verdicts on the issues of negligent entrustment and punitive damages. The jury heard the evidence and found for Singletary and Powe on the issues of negligent supervision and unavoidable accident. I would reverse the Court of Appeals with regard to its decision to reverse and remand in part, and would affirm the trial court’s judgment in its entirety.

SMITH, P.J., JOINS THIS OPINION. WALLER, J., JOINS THIS OPINION IN PART.


author: CARLSON, Justice,

text:
    Sandra COCKRELL v. PEARL RIVER VALLEY WATER SUPPLY DISTRICT.
    No. 2002-CA-02090-SCT.
    Supreme Court of Mississippi.
    Feb. 5, 2004.

      William P. Featherston, Jr., Ridgeland, attorney for appellant.
    J. Stephen Wright, attorney for appel-lee.
    Before PITTMAN, C.J., WALLER, P.J., and CARLSON, J.
   CARLSON, Justice,

for the Court.

¶ 1. The Pearl River Valley Water Supply District (“District”) was granted summary judgment pursuant to the Mississippi Tort Claims Act (MTCA) dismissing with prejudice all claims asserted against it by Sandra Cockrell. Cockrell appeals the ruling of the circuit court citing numerous errors. Finding the motion for summary judgment was properly granted in favor of the District, this Court affirms the final judgment entered by the Circuit Court of Rankin County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On June 28, 1998, Sandra Cockrell was arrested for suspicion of driving under the influence of alcohol by Officer Joey James who was employed as a security patrol officer with the Reservoir Patrol of the Pearl River Valley Water Supply District. Officer James then transported Cockrell to the Reservoir Patrol office and administered an intoxilyzer test. The results of the test are not before us; however, we do know that after the test was administered, Officer James apologized to Cockrell for arresting her, and he assured her that he would prepare her paperwork so that she would not have to spend much time in jail. As they were leaving the Reservoir Patrol office, Officer James began asking Cockrell personal questions such as where she lived, whether she was dating anyone and if she had a boyfriend. Officer James then asked Cockrell for her cell phone number so that he could call and check on her. As they were approaching his patrol car for the trip to the Rankin County jail, Officer James informed Cockrell that she should be wearing handcuffs; however, he did not handcuff Cock-rell, and he allowed her to ride in the front seat of the patrol car with him. In route to the jail, Cockrell became emotional and started crying. As she was fixing her makeup using the mirror on the sun visor, Officer James pulled his patrol car into a church parking lot and parked the car. He then pulled Cockrell towards him in an embrace and began stroking her back and hair telling her that things would be fine. Cockrell told Officer James to release her, but he continued to embrace her for approximately five minutes before continuing on to the jail.

¶ 3. On June 30, 1998, Cockrell returned to the Reservoir Patrol office to retrieve her driver’s license. Officer James called Cockrell into his office and discussed her DUI charge with her. As she was leaving, Officer James grabbed her from behind, turned her around, pinned both of her arms behind her and pulled her to his chest. When Officer James bent down to kiss her, she ducked her head, thus causing Officer James to instead kiss her forehead. When Officer James finally released Cockrell, she ran out of the door and drove away.

¶ 4. On August 7, 1998, Cockrell’s attorney, William P. Featherston, Jr., wrote a letter to Chief James Stepp of the Reservoir Patrol informing him that Cockrell was considering filing criminal charges against Officer James and civil charges against the Reservoir Patrol. Officer James was terminated by the Reservoir Patrol office on October 5,1998.

¶ 5. On September 22, 1999, Cockrell filed a complaint for damages against the District alleging that on the nights of June 28 and June 30, 1998, Officer James was acting within the course and scope of his employment with the District and that he acted with reckless disregard for her emotional well-being and safety. This complaint was filed in the Circuit Court of the First Judicial District of Hinds County; therefore, the District filed a motion to change venue to Rankin County where the alleged incidents occurred. The circuit court entered an Agreed Order For Change of Venue to the Circuit Court of Rankin County.

¶ 6. On April 2, 2002, the District filed its motion for summary judgment alleging that there was no genuine issue of material fact regarding Cockrell’s claim of liability. The motion alleged that the conduct described by Cockrell was outside the course and scope of Officer James’s public employment as he was intending to satisfy his lustful urges. Cockrell responded to the motion arguing that the misconduct did occur in the course and scope of Officer James’s employment with the District and also that the misconduct did not reach the level of a criminal offense such that the District could be found not liable under the MTCA.

¶ 7. On November 19, 2002, the trial court entered a final judgment granting the District’s motion for summary judgment and dismissing the complaint with prejudice. The trial court found that the District could not be held liable under the MTCA for the conduct of Officer James which was both criminal and outside the course and scope of his employment. Cockrell timely filed her notice of appeal.

DISCUSSION

¶ 8. Summary judgment is granted in cases where there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). This Court conducts a de novo review to determine if the trial court properly granted a motion for summary judgment. Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993). “Statutory interpretation is a matter of law which this court reviews de novo.” Wallace v. Town of Raleigh, 815 So.2d 1203, 1206 (Miss.2002) (citing Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (Miss.1999)). In conducting a de novo review, the evidence is viewed in a light most favorable to the nonmoving party, but, if the evidence shows that the moving party is entitled to a judgment as a matter of law, then “summary judgment should forthwith be entered in his favor.” Daniels, Inc., 629 So.2d at 599. See also Conrod v. Holder, 825 So.2d 16, 18 (Miss.2002).

I. WHETHER MISS. CODE ANN. § 11-46-13(1), WHICH PROVIDES THAT CLAIMS UNDER THE MTCA SHOULD BE HEARD WITHOUT A JURY, IS A VIOLATION OF COCKRELL’S STATE CONSTITUTIONAL RIGHT TO A TRIAL BY JURY PURSUANT TO ART. 3, § 31 OF THE MISSISSIPPI CONSTITUTION OF 1890.

¶ 9. For the first time on appeal, Cockrell argues Miss.Code Ann. § 11-46-13 (Rev.2002), which states that all MTCA claims are to be determined without a jury, is unconstitutional. Cockrell bases her argument on Article 3, Section 31 of the Mississippi Constitution which states that “[t]he right of trial by jury shall remain inviolate, but the legislature may, by enactment, provide that in all civil suits tried in the circuit and chancery court, nine or more jurors may agree on the verdict and return it as the verdict of the jury.” In its motion for summary judgment and in its oral argument before the trial judge, Cockrell never argued that this statute was unconstitutional.

¶ 10. The law is well-established regarding claims as to the constitutionality of statutes made for the first time on appeal.

“We accept without hesitation the ordinarily sound principle that this Court sits to review actions of trial courts and that we should undertake consideration of no matter which has not first been presented to and decided by the trial court. We depart from this premise only in unusual circumstances.” Educational Placement Services v. Wilson, 487 So.2d 1316, 1320 (Miss.1986). “The law has been well settled that the constitutionality of a statute will not be considered unless the point is specifically pleaded.” Smith v. Fluor Corp., 514 So.2d 1227, 1232 (Miss.1987). Furthermore, Rule 24(d) of the Mississippi Rules of Civil Procedure requires that proper notice be given to the Attorney General when the constitutionality of a statute is challenged “to afford him an opportunity to intervene and argue the question of constitutionality.” Miss. R. Civ. P. 24(d).

Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 202-03 (Miss.1999). See also Pickens v. Donaldson, 748 So.2d 684, 691-92 (Miss.1999). Cockrell’s failure to raise the issue of the constitutionality of section 11 — 46—13 before the trial court and to notify the Attorney General results in the procedural bar on this issue. Therefore, we decline to address it.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO PEARL RIVER VALLEY WATER SUPPLY DISTRICT.

¶ 11. Cockrell contends there is a genuine issue of material of fact regarding whether Officer James was acting in the course and scope of his employment with the District during the incidents which occurred on the nights of June 28 and June 30, 1998. Cockrell argues Officer James’s conduct, although inappropriate, did not rise to the level of criminal conduct. Cockrell contends Officer James’s action of hugging Cockrell was similar to an officer consoling a victim of a crime. Cockrell does admit that Officer James’s action of kissing her is more difficult to view as within the course and scope of his employment; however, Cockrell does not agree that those actions amounted to a criminal act which would preclude a claim under the MTCA.

¶ 12. The District argues that although Officer James acted within the course and scope of his duties when he arrested Cock-rell, his later conduct, which was intended to satisfy his lustful desires, was outside the scope of his employment with it. The District also contends that the inappropriate conduct of Officer James constituted simple assault pursuant to Miss.Code Ann. § 97-3-37 (Rev.2000).

¶ 13. The District is a governmental entity of the State of Mississippi, as defined by the MTCA; therefore, this case was brought pursuant to the MTCA. See Miss.Code Ann. §§ 11-46-1 et seq. Pursuant to Miss.Code Ann. § 11-46 — 5(1), a governmental entity, such as the District, can be liable under the MTCA for the misconduct of its employee if that misconduct occurred while the employee was “acting within the course and scope of employment.” Miss.Code Ann. § 11-46-7(7) states that “it shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment.” However, a governmental entity is not liable for any misconduct of its employees which occur outside the course and scope of that employee’s employment such as conduct which constitutes “fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations.” Miss. Code Ann. §§ 11-46-5(2) & 11-46-7(2). Therefore, pursuant to the MTCA, the District is not liable nor considered to have waived immunity and Cockrell may not recover damages if Officer James’s conduct (1) occurred outside the course and scope of his employment or (2) constituted a criminal offense.

¶ 14. “Mississippi law provides that an activity must be in furtherance of the employer’s business to be within the scope and course of employment.” L.T. ex rel. Hollins v. City of Jackson, 145 F.Supp.2d 750, 757 (S.D.Miss.2000) (citing Estate of Brown ex rel Brown v. Pearl River Valley Opportunity, Inc., 627 So.2d 308 (Miss.1993)), aff'd mem., 245 F.3d 790 (5th Cir.2000). To be within the course and scope of employment, an activity must carry out the employer’s purpose of the employment or be in furtherance of the employer’s business. Seedkem South, Inc. v. Lee, 391 So.2d 990, 995 (Miss.1980). See also Estate of Brown, 627 So.2d at 311. Therefore, if an employee steps outside his employer’s business for some reason which is not related to his employment, the relationship between the employee and the employer “is temporarily suspended and this is so ‘no matter how short the time and the [employer] is not liable for [the employee’s] acts during such time.’ ” Id. at 311. “An employee’s personal unsanctioned recreational endeavors are beyond the course and scope of his employment.” Hollins, 145 F.Supp.2d at 757. See also Cook Constr. Co. v. Smith, 397 So.2d 536, 537 (Miss.1981).

¶ 15. In Hollins, Officer Kerry Collins, a Jackson Police officer, was on duty when he came upon the parked car of L.T., a minor, and her boyfriend, who were about to engage in sexual activity. 145 F.Supp.2d at 754. Officer Collins instructed L.T. to take her boyfriend home, and he would follow her to make sure she followed his orders. Id. After L.T. dropped off her boyfriend, Officer Collins continued to follow her until he pulled L.T. over. Id. Officer Collins then instructed L.T. to follow him to his apartment or else he would inform L.T.’s parents of her activities. Id. L.T. followed Officer Collins to his apartment where they engaged in sexual activity. Id. Upon returning home, L.T. told her parents everything that had happened. Id. L.T. and her parents filed suit against Officer Collins, the City of Jackson and the Westwood Apartments, where Officer Collins lived rent free in return for his services as a security guard. Id. at 752-53. After Officer Collins was dismissed from the case due to a procedural error, the remaining defendants moved for summary judgment. Id. at 752. The district court granted summary judgment in favor of the City finding that Officer Collins acted outside the course and scope of his employment with the Jackson Police Department. Id. at 757.

¶ 16. In Tichenor v. Roman Catholic Church of the Archdiocese of New Orleans, 32 F.3d 953 (5th Cir.1994), Tichenor sued the Archdiocese of New Orleans for damages that allegedly resulted from his sexual molestation by a Catholic priest. The Fifth Circuit found that the priest was not acting within the course and scope of his employment. Id. at 959. The Fifth Circuit held that “smoking marijuana and engaging in sexual acts with minor boys” in no way furthered the interests of his employer. Id. at 960.

¶ 17. The Southern District of Mississippi and the Fifth Circuit, applying Mississippi law, have held that sexual misconduct falls outside the course and scope of employment. There is no question that Officer James was within the course and scope of his employment when he first stopped Cockrell for suspicion of driving under the influence of alcohol. However, when Officer James diverted from his employment for personal reasons, he was no longer acting in the furtherance of his employer’s interests. The District offered sufficient proof to rebut the presumption that while the act of its employee occurred during the time of his employment, that act did not fall within the course and scope of his employment. Therefore, the District cannot be held liable under the MTCA for the misconduct of Officer James which occurred outside the course and scope of his employment.

¶ 18. Because we find that Officer James was not acting within the course and scope of his employment with the result that the District is not liable under the MTCA, we need not address whether Officer James’s conduct constituted a criminal offense.

CONCLUSION

¶ 19. The trial court properly granted summary judgment in favor of the Pearl River Valley Water Supply District. Pursuant to the MTCA, the District cannot be liable for an employee’s actions which occur outside the course and scope of employment. Therefore, the judgment of the Circuit Court of Rankin County is affirmed.

¶ 20. AFFIRMED.

PITTMAN, C.J., SMITH AND WALLER, P.JJ., COBB AND DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . Miss.Code Ann. § 97-3-7 defines simple assault as:
      (1) A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.


author: THOMAS, J.,

text:
    Harry Edward KLAUSER, D.V.M., Appellant, v. Linda Gayle KLAUSER, Appellee.
    No. 2002-CA-00269-COA.
    Court of Appeals of Mississippi.
    July 22, 2003.
    Rehearing Denied Oct. 7, 2003.
    Certiorari Denied Feb. 5, 2004.

      James W. Bingham, Tupelo, for appellant.

      T. Jackson Lyons, Jackson, for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Linda Klauser filed for divorce in the Chancery Court of Lee County on the grounds of adultery against Harry Klau-ser, D.V.M. A divorce was awarded, and a division of marital assets was entered along with an award of alimony and attorney’s fees to Linda. Aggrieved, Harry asserts the following on appeal:

I. THE COURT DID NOT ADEQUATELY FOLLOW THE FACTORS SET FORTH BY THE MISSISSIPPI SUPREME COURT AND AWARDED AN EXCESSIVE AMOUNT OF ALIMONY.

II. THE INTENTIONS OF THE COURT WERE TO MAKE AN EQUITABLE DIVISION OF THE MARITAL ASSETS TO THE PARTIES REQUESTING THE DIVORCE.

III. THE COURT ERRED IN FINDING THAT LINDA HAS AN INABILITY TO PAY THE ENTIRE AMOUNT OF ATTORNEY’S FEES.

Finding no error, we affirm.

FACTS

¶ 2. Harry and Linda Klauser were married in June of 1970. At the beginning of the marriage Linda worked to support the marriage while Harry was in school for veterinary medicine. The two moved to Tupelo after Harry’s graduation from school where they borrowed money from Linda’s parents to open a veterinary clinic. This was the source of the family income as both of them worked at the clinic until Linda began teaching about fifteen years ago.

¶ 3. In December of 1999, Harry approached Linda and informed her that he wanted a divorce because he had been having a long term affair with an employee and as a consequence the paramour had become pregnant. A few days later Harry moved out of the marital domicile.

¶ 4. Harry has been the primary provider for the family since his graduation from veterinary school. The chancellor determined that neither Harry nor Linda had any assets before the marriage and that all assets in question were those of the marriage. The two had two children both of which are over the age of majority evincing no need for custody proceedings.

¶ 5. The chancellor found that the parties owned four pieces of property that were appraised and subject to distribution, including the marital home appraised at $96,000; the veterinary practice realty, appraised at $310,000; the veterinary practice, appraised at $133,000; and a cabin valued at $27,500. Additional assets subject to distribution were Linda’s state retirement valued approximately at $27,784.36, an annuity in Linda’s name valued at $28,474.34, 128 shares of Bancorp-South stock at an approximate value of $2,009.60, and a $50,000 State Farm life insurance policy on Harry with a cash value of $3,000. There were also two other life insurance policies which had no cash value. Two vehicles were registered in both names, a 1992 Toyota van driven by Linda and a 1986 Toyota van with a value of $2,500. Harry had several vehicles in his name including a 1986 Honda valued at $2,000, a 1987 Toyota sport utility vehicle valued at $1,000, a 1957 Chevy Pickup valued at $2,500, and a 1995 Mitsubishi Gallant valued at $3,800.

¶ 6. The chancellor awarded Linda the marital home, the cabin, the retirement account, annuity, stock, and cash value of the life insurance for a total of $122,749.30. Harry was awarded the veterinary realty and the veterinary clinic for a total of $216,106. The difference, $93,357, was awarded to Linda as a property settlement which is payable by Harry in increments of $1,000 per month until the sum is paid in full.

ANALYSIS

¶ 7. It must be reasonably certain to this Court that the chancellor abused his discretion, was manifestly wrong, was clearly erroneous or applied an erroneous legal standard to render a reversal. Barton v. Barton, 790 So.2d 169, 175(¶ 17) (Miss.2001); Palmer v. Palmer, 841 So.2d 185, 188(¶ 2) (Miss.Ct.App.2003).

I. DID THE COURT ADEQUATELY FOLLOW THE FACTORS SET FORTH BY THE MISSISSIPPI SUPREME COURT AND DID THE COURT AWARD AN EXCESSIVE AMOUNT OF ALIMONY?

¶ 8. Harry asserts that the chancellor erred in awarding Linda’s $1,000 per month alimony claiming that it is excessive and unfair. Harry cites his depreciating health as the main factor in reasoning that the alimony award is in error with earning capacity also being a reason for error.

¶ 9. The guidelines to be used in determining if alimony is appropriate in a particular case were established in Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). They are: (1) the income and expenses of the parties; (2) the health and earning capacities of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence or absence of minor children in the home; (7) the age of the parties; (8) the standard of living of the parties, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal support order; (10) fault or misconduct; (11) wasteful dissipation of assets by either party; or (12) any other factor deemed just and equitable. Armstrong, 618 So.2d at 1280. Unlike property division, an on-the-record analysis of the Armstrong factors is not necessary. Thompson v. Thompson, 816 So.2d 417, 420(¶ 9) (Miss.Ct.App.2002).

¶ 10. The supreme court has held that alimony, if allowed, “should be reasonable in amount, commensurate with the wife’s accustomed standard of living, minus her own resources, and considering the ability of the husband to pay. As long as the chancellor follows this general standard, the amount of the award is largely within his discretion.” Gray v. Gray, 562 So.2d 79, 83 (Miss.1990).

¶ 11. The record shows that the chancellor determined that there was a large difference between Harry’s and Linda’s gross monthly incomes. The chancellor also considered the health, age, need and earning capacity of both individuals when deciding on whether to award alimony and how much to award. Considering all the factors set out in Armstrong, as the chancellor did in the record, the alimony award is equitable and no abuse of discretion is present.

II. WAS THE DIVISION OF THE MARITAL ASSETS AN EQUITABLE ONE?

¶ 12. Harry asserts that the court’s intentions were to make an equitable division of the marital property, but failed to do so. Harry claims that a proper division would be an equal 50/50 split of the marital assets, rather than a difference of $93,357 which he must pay at a rate of $1,000 per month.

¶ 13. The case of Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), established the guidelines that chancellors are to consider when deciding issues of marital property division. In that ease, this Court directed chancery courts [to] consider the following guidelines, where applicable, when attempting to effect an equitable division of marital property:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
e. Contribution to the education, training or other accomplishment bearing on the earning power of he spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and
8.Any other factor which in equity should be considered.

Ferguson, 639 So.2d at 928. The phrase “where applicable” and guideline number eight indicate that this is a non-exclusive listing of factors that the chancellor may consider. Id. The chancellor must also “support their decisions with findings of fact and conclusions of law for purposes of appellate review.” Id. The Mississippi Supreme Court has stated that “the failure to make findings of fact and conclusions of law [is] manifest error requiring reversal on remand.” Sandlin v. Sandlin, 699 So.2d 1198, 1204 (Miss.1997). This Court must have these findings of fact because “this Court 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 party’s nonmarital property, guided by the Ferguson factors, and, if necessary to do equity, of any award of alimony.” Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994). The factors enumerated in Ferguson are not factors in guiding the classification of assets as marital or nonmarital property, they are factors that are to be considered when deciding which party should receive certain assets in the division of the marital property, and to justify any inequitable division that may occur. Ferguson, 639 So.2d at 928.

¶ 14. In Johnson v. Johnson, the supreme court outlined the steps involved in the process of applying the equitable distribution factors listed in Ferguson. Johnson, 650 So.2d at 1287. To begin, the chancellor is to classify the parties’ assets as marital or non-marital pursuant to Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994). Next, the chancellor is to value and equitably divide the marital property using the Ferguson factors as guidelines, in light of each party’s non-marital property. Johnson, 650 So.2d at 1287. Mississippi follows an equitable distribution theory of property division, whereby the chancery courts are to use their equity power to do fairness to the parties, not to simply award a certain percentage of the marital assets. Ferguson, 639 So.2d at 926. We have repeatedly held that in making an equitable division of the marital property, the chancellor is not required to divide the property equally. Love v. Love, 687 So.2d 1229, 1232 (Miss.1997). See also Trovato v. Trovato, 649 So.2d 815, 818 (Miss.1995) (holding that equal distribution of the property was an abuse of discretion when wife had contributed significantly more to the marital assets than the husband); Brame v. Brame, 796 So.2d 970, 975(¶ 20) (Miss.2001).

¶ 15. The chancellor has made findings of fact on the record which comply with the legal standard set forth in the cases supra. There is no error.

III. DID THE COURT ERR IN FINDING THAT LINDA HAS AN INABILITY TO PAY THE ENTIRE AMOUNT OF ATTORNEY’S FEES?

¶ 16. Harry asserts that the chancellor’s award of attorney’s fees was unfounded. He claims that Linda is able to pay her attorney’s fees, and as such she is not entitled to an award of attorney’s fees. Harry claims that to require him to pay Linda’s attorney’s fees would place an undue burden on him.

¶ 17. An award of attorney’s fees in divorce cases is largely a matter entrusted to the sound discretion of the trial court; absent abuse of discretion, the chancellor’s decision in such matters will generally be upheld. Armstrong, 618 So.2d at 1278. An appellate court is “reluctant to disturb a chancellor’s discretionary determination whether ... to award attorney fees and of the amount of [any] award.” Geiger v. Geiger, 530 So.2d 185, 187 (Miss.1988). This Court has stated that “where the only liquid asset is the alimony award and the party seeking fees has otherwise demonstrated an inability to pay the fees, a reasonable award is appropriate, providing the McKee factors, regarding inability to pay, the skill of the attorney, the nature and novelty of the case, usual fees for similar cases of a similar character are satisfied.” East v. East, 775 So.2d 741, 745(¶ 16) (Miss.Ct.App.2000) (citing McKee v. McKee, 418 So.2d 764, 767 (Miss.1982)).

¶ 18. The Mississippi Supreme Court in McKee, pronounced that, “[i]n addition to the relative financial ability of the parties, [the chancellor is to consider] the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.” McKee, 418 So.2d at 767.

¶ 19. The chancellor may also consider the source of the funds the spouse would be forced to use to pay the attorney’s fees. As the Mississippi Supreme Court has stated, “We are of the opinion that she should not be required to invade the corpus of her investment or to take from her own teacher’s income to pay her attorney’s fees under the facts of this case.” Adams v. Adams, 591 So.2d 431, 435 (Miss.1991). Although there is no verbalized finding, the record provides more than adequate foundation that the individual factors in McKee were ample to support the chancellor’s finding. Furthermore, the record provides more than adequate evidence of Linda’s need for the award of attorney’s fees as the findings of fact show a financial strain on Linda.

¶ 20. THE JUDGMENT OF THE LEE COUNTY CHANCERY COURT IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THIS APPEAL ARE ASSESSED AGAINST THE APPELLANT.

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


author: SOUTHWICK, P.J.,

text:
    Bruce FERGUSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01733-COA.
    Court of Appeals of Mississippi.
    Sept. 2, 2003.
    Rehearing Denied Nov. 18, 2003.
    Certiorari Denied Feb. 5, 2004.
    Stephanie L. Mallette, Attorney for Appellant.
    Office of the Attorney General by W. Glenn Watts, Attorney for Appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Bruce Ferguson was convicted by an Oktibbeha County Circuit Court jury of burglary and aggravated assault and was sentenced to concurrent seven year prison terms. On appeal, Ferguson submits that the lower court erred in failing to grant his motions for directed verdict or judgment notwithstanding the verdict. We disagree and affirm.

STATEMENT OF FACTS

¶ 2. Prior to this incident, Bruce Ferguson and Jacqueline Brewer maintained a stormy relationship for approximately four years. In the months before these events, their relationship was worsened by Ferguson’s affair with a second woman, Carrie Petty. On the morning of September 14, 2001, at Ferguson’s request, Petty drove him to an intersection of Highway 25 in Starkville. Ferguson then proceeded on foot to Brewer’s home. He cut the phone lines leading to the house, then knocked on Brewer’s door, mimicking the voice of a young girl. Brewer, expecting her next-door neighbor, opened the door to find Ferguson. At this point, evidence in the record diverges with the separate theories of the prosecution and the defense.

¶ 3. The State’s case proceeded with Brewer’s testimony. Brewer stated that upon opening the door, Ferguson forced his way into the house, backing Brewer against a wall. Ferguson, enraged at the thought of Brewer taking up with another man, placed a length of rope fashioned into a makeshift noose around Brewer’s neck. Ferguson threatened to kill her. The appearance of the couple’s daughter caused Ferguson to calm down. He even repaired Brewer’s damaged phone line. Petty subsequently arrived and convinced Ferguson to leave with her. The restored telephone enabled Brewer to call for help, and authorities arrived before Petty and Ferguson departed.

¶ 4. Ferguson testified that he cut Brewer’s telephone lines because when the two previously fought, Brewer would often call her friends and “put them in our business.” His impersonation of the young girl was merely an example of their style of “playing.” Ferguson denied breaking into Brewer’s home but did admit backing her against a wall. Ferguson claimed that he did not place the rope around Brewer’s neck but merely shoved it at her while telling her to “quit playing games.” Ferguson testified that Brewer removed his shirt and offered to wash his hair, indicating that the two were not involved in a struggle. Ferguson then repaired the telephone line when Petty arrived.

¶ 5. Sheriffs deputies stopped Petty and Ferguson from leaving Brewer’s house, instructing them to return to Brewer’s driveway. Once the deputies decided to arrest Ferguson, they told him to place his hands on the vehicle. Instead, Ferguson began to run. He went approximately seventy yards before deputies stopped him. He was indicted, tried, and convicted on counts of burglary and aggravated assault. His appeal has been deflected here.

DISCUSSION

¶ 6. Ferguson’s appeal consists solely of an attack on the sufficiency of the evidence. Two different motions were made, both a motion for directed verdict once the prosecution rested, and a post-trial motion for judgment notwithstanding the verdict. Both were denied. Each of these motions challenge the legal sufficiency of the evidence. Our review focuses on the evidence that had been admitted prior to the last such challenge. Johnson v. State, 642 So.2d 924, 927 (Miss.1994). We therefore consider all evidence in the record at trial.

¶ 7. Ferguson notes that the only evidence of the assault came from Brewer’s testimony. Ferguson then points to flaws in that testimony, particularly Brewer’s inability to recall details of the assault, the absence of any injury to Brewer, Brewer’s admitted failure to obtain medical attention, and evidence of other disputes between the two which suggest the assault might have been exaggerated.

¶ 8. We review all evidence as well as the inferences which may reasonably be drawn in a light most favorable to the State. McClain v. State, 625 So.2d 774, 778 (Miss.1993). We may only reverse, if, under such review, we find that no reasonable juror could assign guilt to the defendant. Id. It was uncontradicted that Ferguson cut Brewer’s phone line and imitated a young neighbor’s voice. Though Ferguson characterizes his intent regarding those actions differently from the theory advanced by the State, we may reasonably infer Ferguson’s intent for wrongdoing consistent to support the jury’s verdict. Ferguson stated that Brewer invited him into her home, then admitted to backing her against a wall. Brewer testified that Ferguson forced the door open. Decisions regarding the weight and worth of conflicting testimony are properly for the jury. Williams v. State, 794 So.2d 1019, 1028 (Miss.2001). There was sufficient evidence on burglary.

¶ 9. With regard to the aggravated assault, Brewer testified that Ferguson placed a length of rope around her neck and pulled it tight. She further testified that Ferguson told her he would kill her. Ferguson admits putting the rope to Brewer’s throat, but denied wrapping it around her neck. Ferguson relies heavily on evidence that when authorities arrived, Brewer did not appear to be injured and that she refused offers of medical assistance. However, proof of injury is not required for guilt of the offense for which Ferguson was charged. Miss. Code Ann. § 97-3-7 (Rev.2000); Gayle v. State, 743 So.2d 392, 403 (Miss.Ct.App.1999). We find that the evidence and attendant inferences provide an ample basis for the jury’s decision of guilt.

IF 10. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION FOR COUNT I, BURGLARY OF AN OCCUPIED DWELLING AND SENTENCE OF SEVEN YEARS; AND COUNT II, AGGRAVATED ASSAULT AND SENTENCE OF SEVEN YEARS ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE SENTENCE IN COUNT II TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT I, FIVE YEARS’ POST-RELEASE SUPERVISION, AND FINE OF $1,000 IS HEREBY AFFIRMED. COSTS ARE ASSESSED TO OKTIBBEHA COUNTY.

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


text:
    Corwin T. HILL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01210-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.
    Rehearing Denied Feb. 10, 2004.

      Wanda Turner-Lee Abioto, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.

      Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Corwin T. Hill appeals his conviction by a DeSoto County Circuit Court jury of both possession and sale of a controlled substance. Hill assigns the following errors:

I. WHETHER THE EVIDENCE SEIZED AS A PRODUCT OF AN UNLAWFUL SEARCH AND SEIZURE IN CONTRAVENTION OF THE LAW SHOULD BE SUPPRESSED AS FRUIT OF AN ILLEGAL SEARCH AND SEIZURE.

II. WHETHER THE COURT ERRED IN REFUSING TO GRANT THE DEFENDANT’S INSTRUCTION WHICH RELATED TO BIAS, INTEREST IN OUTCOME AND SPECIFIC INSTANCES OF MISCONDUCT WHICH RELATE DIRECTLY TO THE TRUTH AND VERACITY OF THE WITNESS WHEREIN THERE IS EVIDENCE OF AN EXCESSIVELY LOWERED SENTENCE GIVEN TO THE CONFIDENTIAL INFORMANT AND THE EVIDENCE OF BIAS BY THE POLICE OFFICER.

III. WHETHER THE COURT IMPROPERLY DENIED THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.

IV. WHETHER THE ELICITED OUT-OF-COURT STATEMENTS BY THE STATE OF UNKNOWN DECLARANTS IN THE FACE OF OBJECTION BASED UPON HEARSAY CONSTITUTES REVERSIBLE ERROR.

V. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO COMPEL DISCLOSURE OF THE CONFIDENTIAL INFORMANT.

VI. WHETHER THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE CONVICTION PURSUANT TO THE INDICTMENT AND RELEVANT LAW, SUCH THAT THE LOWER COURT ERRED IN NOT GRANTING A DIRECTED VERDICT PURSUANT TO THE MISSISSIPPI RULES OF PROCEDURE.

VII. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING THE PROSECUTION TO ELICIT TESTIMONY OF A SEPARATE AND DISTINCT CRIME, DEPRIVING THE APPELLANT OF DUE PROCESS UNDER THE FEDERAL AND STATE CONSTITUTION AND DENYING HILL A FUNDAMENTALLY FAIR TRIAL.

VIII. WHETHER THE TRIAL-COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT’S MOTION FOR. NEW TRIAL.

¶ 2. Finding no merit to any of these alleged errors, we affirm the conviction.

FACTS

¶ 3. At some unspecified time, the DeSo-to County Metro Narcotics Department began receiving complaints that Corwin Hill was selling drugs on the public roadways surrounding the home of his father and, some small distance away, his mother’s home. These tips came primarily from neighbors of the Hills and other community members. Some tips came via telephone, primarily anonymous but on at least one occasion, a neighbor personally complained at the DeSoto County Metro Narcotics Station.

¶ 4. These reports indicated Hill would park his red 1988 Nissan Sentra on the shoulder of various roads in his neighborhood and sell drugs from the vehicle. Authorities were also informed that Hill had been known to carry a gun during these transactions. Based upon these pieces of information, the narcotics agents began investigating Hill, which included intermittent surveillance. At least one undercover purchase of marijuana was arranged in conjunction with the Mississippi Bureau of Narcotics, but the MBN later declined to pursue the scheduled purchase.

¶ 5. On February 1, 2001, Agent Charles Terry of Metro Narcotics passed Hill parked on the shoulder of the public road in his red Nissan. Because this was consistent with the information of Hill’s alleged method of operation, Agent Terry turned his vehicle around, pulled up behind Hill and activated the blue police lights of his unmarked vehicle. Hill then drove forward on the shoulder and turned into a private driveway, apparently that of his father, before stopping.

¶ 6. Agent Terry approached Hill and requested Hill exit the vehicle so the agent could pat Hill down for weapons. During the course of the pat-down, Hill suddenly lunged back into the vehicle and reached under the driver’s side seat. Fearing Hill was reaching for a weapon, Agent Terry first ordered Hill out of the car then, when Hill refused to comply, physically removed Hill, placed him face down on the ground and handcuffed him. Agent Terry then searched the car for weapons. During the search, Agent Terry noted a white powdery substance on the driver’s seat. Agent Terry performed a field test which confirmed the presence of cocaine and Hill was arrested for possession of a controlled substance. Hill bonded out of jail later the same day.

¶ 7. The following evening, February 2, confidential informant Steven Dettelbach called Hill and arranged to purchase cocaine from him. Dettlebach was equipped with both audio and video recording devices. Dettlebach met Hill on the side of a public road. Hill was a passenger in a car driven by another man. Dettlebach purchased the cocaine from Hill then returned to the Metro Narcotics agents and turned over the drugs and recording equipment.

¶ 8. Hill was later arrested and indicted for sale of a controlled substance as well as the possession charge. After trial, Hill was convicted on both charges. He now appeals that judgment.

ANALYSIS

1. Illegal search and seizure

¶ 9. In his first assignment of error, Hill argues the collection of cocaine from the front seat of his car on February 1, 2001, by Agent Terry was an illegal search and seizure in violation of his constitutional rights. Hill contends that Agent Terry did not have probable cause “to search and investigate the items in his vehicle without a proper search warrant or an arrest” and no valid exceptions to the warrant requirement exist to render the search and seizure of evidence proper. The evidence, therefore, should have been suppressed. The trial court conducted a suppression hearing and found the evidence admissible.

¶ 10. The Fourth Amendment to the Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const., amend. IV.

¶ 11. A police officer may, however, approach an individual for purposes of investigating possible criminal behavior, even in the absence of probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Where the officer has a reasonable belief the individual may be armed and dangerous, the officer may conduct a very limited search of the outer clothing in order to determine whether the individual is, in fact, armed. Id. at 30, 88 S.Ct. 1868.

¶ 12. Hill makes much of the fact that Agent Terry had neither warrant nor probable cause when he approached Hill on the side of the road. Agent Terry admitted as much at trial. However, neither warrant nor probable cause is required for an investigatory inquiry. What is required is a reasonable belief based upon specific, articulable facts that the defendant is engaged, or about to be, in criminal activity. Id. at 21-22, 88 S.Ct. 1868.

¶ 13. Given the information available to Agent Terry, his decision to stop and investigate was reasonable. Hill was parked on the side of the road, in a particular car and in a specific neighborhood, all of which was consistent with the tips Terry had received of Hill’s method of selling drugs. Nor was there any immediately apparent reason for Hill’s presence there or his decision to pull away from Terry once the agent had activated his blue lights. This was all suspicious behavior which, while not rising to a level sufficient to justify an immediate arrest, was sufficient to permit inquiry of Hill about his activities.

¶ 14. These same tips led Agent Terry to believe Hill was possibly carrying a concealed weapon. It is not necessary that the officer know with certainty that a suspect is armed before the limited Terry search is permissible. Id. at 27, 88 S.Ct. 1868. If the reasonably prudent man would be warranted in believing his safety or the safety of others is at risk under the circumstances, he may take the allowable steps to assure his personal safety. Id. Having been specifically told Hill often carried a gun, Agent Terry’s belief that a pat-down was necessary was reasonable.

¶ 15. It is this same concern for safety that permits an officer to make a cursory search of the passenger compartment of a vehicle upon a valid Terry inquiry without warrant or probable cause. Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). If the initial inquiry was valid and the officer is able to articulate specific facts to support his belief the object of the inquiry may be armed, the officer may search those passenger areas of the vehicle where a weapon may be concealed. Id. As the Supreme Court pointed out, if a subject is dangerous, he is no less dangerous simply because he has not yet been arrested. Id. at 1050, 103 S.Ct. 3469. Moreover, if the individual is not arrested and allowed to return to his vehicle, an undiscovered weapon may yet still compromise officer safety. Id. at 1052, 103 S.Ct. 3469.

¶ 16. An officer is not required to ignore contraband discovered in the course of a Terry search although such was not the point — nor could it have validly been— of his search in the first place. Id. at 1050, 103 S.Ct. 3469. When such chance discovery is made, evidence thus discovered does not require suppression. Id.

¶ 17. Agent Terry did not discover the cocaine by exceeding the scope of the permissible search of Hill’s car. He did not discover it by prying into objects which could not have reasonably held a weapon, such as a matchbox or small flat envelope. Agent Terry discovered it dusted on the seat of the car. We agree with the trial court that the evidence was properly seized and its admission at trial was not error.

2. Jury instructions

¶ 18. Hill next contends he was prejudiced by the trial court’s refusal to grant his proffered instruction, D-2. Hill argues the instruction was a proper one addressing the possible bias, prejudice or lack of veracity of a witness. The court refused the instruction as it was in improper form and offered Hill’s counsel a brief recess in order to find a substitute instruction. Counsel did not offer any substitute. On appeal, Hill argues that Steven Dettle-bach’s testimony was unreliable and a cautionary instruction should have been given because Dettlebach had been arrested himself on drug sale charges and received lenient treatment at the hands of authorities in exchange for his participation as a confidential informant. Hill also alleges bias against him by law enforcement.

¶ 19. The instruction at issue, D-2, reads:

The Court instructs the jury that evidence that a witness or witnesses
(a) is prejudiced against the defendant and/or
(b) has an interest in the outcome of the case; and or
(c) has engaged in specific instances of misconduct which relate directly to the truth and veracity of the witness may be used for the limited and sole purpose of ascertaining the credibility of the witness.

¶ 20. A cautionary instruction is one in which the jury is advised that the testimony of certain witnesses should be viewed with suspicion because of the probability of unreliability of the witness. Such instructions may be given when the State relies upon the testimony of a co-conspirator or accomplice. Montgomery v. State, 830 So.2d 1269, 1272(¶ 9) (Miss.Ct.App.2002). The testimony of jailhouse snitches, repeating statements allegedly made by the defendant while incarcerated together, may also warrant a cautionary instruction. Carr v. State, 655 So.2d 824, 837 (Miss.1995). This is so because of the obvious potential for abuse; one facing criminal charges may lie in order to better one’s own position with authorities.

¶ 21. As an initial matter, we agree with the trial court that the instruction was improper for the stated purpose for which it was being offered. It bears little resemblance to a cautionary instruction. It does not instruct that the jury should view certain testimony with suspicion but rather requires the jury to severely limit its use of testimony by anyone who may conceivably have an interest in the outcome of the trial. That is not the proper use of a cautionary instruction.

¶ 22. We also note that the trial court did not refuse to give any cautionary instruction, merely the proffered one. Hill was granted an opportunity, albeit a relatively brief one, in which to locate an adequate substitute. This he failed to do. We cannot find the court erred because of Hill’s own failings.

¶ 23. Under this assignment of error, Hill further argues that because a confidential informant who receives favorable treatment in exchange for services and testimony is equally as motivated to lie as an accomplice or co-conspirator would be, Dettlebach should be regarded as either an accomplice or co-conspirator and therefore the failure to give any cautionary instruction is reversible error.

¶ 24. Hill acknowledges this Court has previously addressed that very question and declined to make the finding he urges. Montgomery, 830 So.2d at 1272. Hill argues the question should be revisited because there is little, if any, distinction between confidential informants and accomplices who testify to save their own skin.

¶ 25. An accomplice is an individual involved in some manner in the commission of a crime. Id. In undercover drug buys, the confidential informant is acting as an agent of the State. He cannot commit a crime by doing exactly what he was sent by authorities to do.

¶ 26. We do agree that an informant may be motivated to lie. The same may be said for virtually any witness at a criminal trial. Hill had, and ably utilized, the opportunity to cross-examine Dettlebach and expose to the jury the possibility of prevarication for self-preservation purposes. On cross, Dettlebach admitted that he had acted as a confidential informant following his own arrest on narcotics charges in hopes of helping himself and that he had received what would likely be considered a more lenient sentence in comparison to the punishment he could have received.

¶ 27. The jury had all of this information before it. It is the duty of the jury to judge the credibility of the witnesses presented and determine the weight and worth to be given that testimony. Davis v. State, 320 So.2d 789, 791 (Miss.1975). They were informed of this duty by the court in instruction C-l. This was adequate.

3. Sufficiency of the evidence

¶ 28. Hill made motions for directed verdict and judgment notwithstanding the verdict which were denied by the trial court. Such motions challenge the sufficiency of evidence presented at trial. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 29. In testing an allegation of insufficient evidence, we look at the evidence in the light most favorable to the State and the reasonable inferences to be drawn from that evidence. Id. We will reverse only where, with respect to one or more elements of the crime charged, no reasonable and fair-minded jury could have found the defendant guilty. Wetz v. State, 503 So.2d 803, 803 (Miss.1987).

¶ 30. On appeal, Hill argues Dettle-bach’s testimony was deficient because, as an accomplice, it required corroboration and was seriously and substantially impeached at trial by defense witness Kenneth Robinson who testified that Dettle-bach had confessed to buying the drugs from a Memphis man then simply telling the narcotics agents he had purchased them from Hill; the audiotape made by narcotics agents of the buy was incomprehensible and the videotape did not show the appellant; Agent Terry’s in-court statement that he recognized the voice of Corwin Hill at the time of the buy was not sufficient to uphold the conviction; and the failure to immediately arrest Hill at the time of the taped drug sale casts doubt upon the narcotics agents’ testimony that Hill was considered a major drug dealer in the area.

¶ 31. As discussed above, Dettle-bach was not an accomplice and the rules on accomplice testimony do not apply to this case. As to the remaining claims of Hill on this issue, Hill would ask that we review the sufficiency of the evidence by looking to any weaknesses in the State’s case, rather than its strength which is the accepted standard of review. What the State did supply evidence of was cocaine in Hill’s car, resulting in the arrest and conviction for possession of a controlled substance, and the taped sale of cocaine by Hill to Dettlebach. Whatever technical deficiencies may have existed in the tapes were presented to the jury along with the testimony of Dettlebach and Terry.

¶ 32. The same may be said for the testimony of Robinson. Robinson, also a convicted felon serving his sentence at the time of Hill’s trial, provided testimony which was contradicted by Dettlebach and the tapes made of the sale in question. The question of which evidence was more believable was properly left to the jury and we will not intrude upon its finding of facts by re-evaluating the credibility of the witnesses in the face of conflicting evidence. Groseclose v. State, 440 So.2d 297, 300-301 (Miss.1983). The evidence that was submitted was more than sufficient to sustain the conviction.

f. Disclosure of informants’identity

¶ 33. Hill next argues he was prejudiced by the court’s permittal of testimony by law enforcement as to the substance of the tips by community members that Hill was dealing drugs in the neighborhood. Hill objected to this testimony and argues on appeal an infringement of his constitutional right to confront and cross-examine his accusers.

¶ 34. At trial, Hill questioned Agent Terry regarding the identity of the informants to which the State objected and was sustained. Hill contends this also violated his right of confrontation as well as constituted a discovery violation for the State’s failure to disclose these persons to the defense.

¶ 35. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. M.R.E. 801(c). Such statements are not admissible except as provided for by law. M.R.E. 802.

¶ 36. In this case, Agent Terry was explaining why he had approached Corwin Hill at all on February 1, 2001, the date of the arrest for possession of a controlled substance. Agent Terry was not offering this information for its truth — that Hill was selling drugs — but as the background basis for his own actions that day. Such does not constitute inadmissible hearsay. To the extent necessary to show why an officer acted as he did, an informant’s tip is admissible. Swindle v. State, 502 So.2d 652, 657-58 (Miss.1987).

¶ 37. Allowing such statements to reach the jury does not violate Hill’s right to confront his accusers. “The central concern of the [Constitutional] Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before a trier of fact.” Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). The evidence used to accuse Hill was not the various statements of anonymous tipsters but the evidence acquired by Agent Terry which resulted in Hill’s arrest. Agent Terry, for all practical purposes of this issue, was the accuser and Agent Terry was confronted and cross-examined by Hill at trial.

¶ 38. Nor was Hill prejudiced by the court’s refusal of Hill’s demand that the tipsters’ identities be revealed. The State is not always required to divulge the identity of a confidential informant. Read v. State, 430 So.2d 832, 835 (Miss.1983). While disclosure is required when the informant was a material witness to the crime, under other circumstances disclosure is a matter of discretion left to the trial court. Id. at 835-36.

¶ 39. It is readily apparent that none of the undisclosed informants were material witnesses to the crimes with which Hill was charged. Therefore, disclosure was subject to the court’s discretion. In this case, the transcript shows the court expressed serious concern for the safety of those involved with the arrest and prosecution of Corwin Hill. A police officer who would have testified against Hill was attacked and injured in front of his home the night before he was scheduled to testify. Under these circumstances, we do not find an abuse of judicial discretion.

¶ 40. We also note, as a practical matter, that with one apparent exception, the identity of the informants were unknown to authorities. The State would not have been able to satisfy Hill’s request even had it been so inclined.

¶ 41. Steven Dettlebach was the only informant who, as a participant in the undercover buy, was a material witness and whose identity was required to be disclosed. The State complied with this obligation; Dettlebach was called as a witness and Hill thoroughly cross-examined him. There is no suggestion the State failed to provide proper discovery with respect to Dettlebach.

5. Evidence of a separate crime

¶ 42. Finally, Hill argues the court improperly allowed evidence of a separate and unrelated crime to be introduced to the jury. During the testimony of Agent Terry, the narcotics officer revealed that Metro Narcotics in conjunction with the Mississippi Bureau of Narcotics had planned a large marijuana buy from Hill in the past but, because the MBN declined to go forward, the plan was abandoned.

¶ 43. Hill failed to object to this testimony at the time it was offered. By failing to make a contemporaneous objection, Hill’s claim of error is barred from appellate review. Walker v. State, 671 So.2d 581, 587 (Miss.1995).

¶ 44. Procedural bar notwithstanding, Hill’s complaint is without merit. The testimony indicates a plan by authorities left unrealized. No crime occurred, separate and unrelated or otherwise. Hill was never questioned, detained, arrested or charged as a result of the MBN’s abandoned idea. Therefore any alleged error on this ground is groundless.

¶ 45. As a final matter, we must address an issue not raised by either party. We review this under the provisions of Rule 103(d) of the Mississippi Rules of Evidence, also referred to as the plain error rule.

¶ 46. In the second count of the indictment, Hill was sentenced to a term of fifteen years’ imprisonment to eventually be followed by fifteen years of post-release supervision. By statute, the maximum amount of time a defendant may be placed under post-release supervision is five years. Miss.Code Ann. § 47-7-34 (Rev. 2000). Although Hill could have received up to five years of post-release supervision for each crime of which he was convicted, the trial court saw fit to only impose such restrictions for one of the convictions. The imposition of a fifteen-year term is in clear violation of statute and we must reverse and remand to the trial court for the sole purpose of entering a correct order with respect to the post-release supervision portion of the sentence. Burnett v. State, 831 So.2d 1216, 1221 (¶¶ 20-21)(Miss.Ct.App.2002).

¶ 47. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION ON COUNT I POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF THREE YEARS, FINE OF $5,000 AND RESTITUTION OF $125, COUNT II SALE OF A CONTROLLED SUBSTANCE AND SENTENCE OF FIFTEEN YEARS FINE OF $5,000 AND RESTITUTION OF $275, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; SENTENCES TO RUN CONCURRENTLY, IS AFFIRMED. SENTENCE OF FIFTEEN YEARS POST-RELEASE SUPERVISION IS REVERSED AND REMANDED FOR ENTRY OF PROPER SENTENCING ORDER. COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

      . An example of such an instruction would be, "I charge you that Jay Posey, Willie James Sherrod and Tommy Turner have admitted being accomplices to this burglary. You are to regard this testimony with great suspicion and to consider it with caution.” Derden v. State, 522 So.2d 752, 754 (Miss.1988).