author: GRIFFIS, J., IRVING, J.,

text:
    Larod ODEM, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KM-01689-COA.
    Court of Appeals of Mississippi.
    Sept. 7, 2004.

      Michael E. Robinson, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Larod Odem was convicted of two counts of misdemeanor resisting arrest and was sentenced to serve two consecutive six month sentences, with the second six month sentence suspended. On appeal, he states the following issues:

A. Odem reasonably resisted an unlawful arrest and the charges should have been dismissed.
B. Odem’s right to free speech was violated.
C. Odem was entitled to a directed verdict and/or judgment notwithstanding the verdict.
D.The trial court should have granted a new trial.

Finding no error, we affirm.

FACTS

¶2. On Saturday, February 5, 2000, Odem loaned his vehicle to his friend Christopher Harris. Harris was parked at a Canton car wash when officers from the Madison County Sheriffs narcotics unit approached Harris and others. Harris was arrested and charged with loitering and possession of a concealed weapon. Odem’s vehicle was impounded.

¶ 3. Later that evening, Odem went to the Madison County Sheriffs Office to claim his vehicle. Deputy Sheriff Mark O’Cain responded to a dispatcher’s call to come to the lobby of the sheriffs department to deal with an “irate” person in the lobby. O’Cain arrived and began a conversation with Odem. O’Cain testified that Odem was looking for his vehicle, and he was “very irate.” O’Cain contacted Lieutenant James R. Marlett, the supervisor of the narcotics unit, to resolve Odem’s concerns. Marlett instructed him to tell Odem to come to the sheriffs department on Monday morning with proof of ownership of the vehicle. O’Cain described Odem’s demeanor as follows: “He was pretty excited. He was pretty wound up, using profane language. And at that time, I told him he would be arrested for disorderly conduct and disturbing the peace if he didn’t leave the property.” Odem complied and left.

¶ 4. On Monday morning, as instructed, Odem returned to the sheriffs department. Odem asked for Lieutenant Mar-lett, and he identified himself as the owner of the vehicle. Odem demanded the return of the vehicle.

¶ 5. Lieutenant Marlett testified that he explained the procedure that Odem would have to follow to retrieve the vehicle. Marlett advised Odem that he would have to provide “proof of ownership, a title, registration, something showing ownership of the vehicle before we can release this vehicle to you.” Odem told Marlett that the ownership papers were in the glove compartment of his vehicle and that the people at the impound lot would not let him retrieve them. Marlett offered to call the impound lot to allow Odem access to the vehicle to retrieve the ownership papers.

¶ 6. Upon learning that he would have to go back to the impound lot to retrieve the papers, Odem became agitated. Marlett provided the following testimony about the incident:

He became a little bit louder and a little more irate. He said, I have already been there. I tried to get the proper paperwork for this vehicle. They wouldn’t let me get the paperwork. This is a bunch of .... This is a shit. He said, I’ve already been there to get this paperwork. They refused to let me get the paperwork out of my own vehicle. I said, well, I’ll call. He said this is just a bunch of MF shit. I’ve already been up there one time to get the paperwork. He said, do you mean that I’ve got to go back up there, get the paperwork, bring it back to your office, show you the paperwork and then go back up there to get my vehicle? I said, yes, that’s exactly what you’ll need to do. He said this is a bunch of F’ing shit that it seems like that I’m having to run back and forth. This is a bunch of sick shit that seemed like I am just harassed become of the paperwork or the vehicle. I said, no, we cannot release the vehicle without the proper paperwork.
And he became more agitated, and he started shouting.... And with all the swear words and loudness, he kept getting louder and louder, and I told him, I said, there’s no need of this language. I will call Mr. Cannon [the owner of the towing company where the vehicle was located]. You can get your paperwork. But the next time that you utter cuss words like you’re doing now, I’m going to place you under arrest for disorderly conduct.
He said, this is just a bunch of sick shit that I should not have to go through this, and I’m tired of it. And it seems like all you MF’s are harassing us.

Marlett then informed Odem that he was under arrest for disorderly conduct.

¶ 7. Marlett claims that when he went around his desk to place Odem in handcuffs Odem shoved him, and he fell over his desk. As Odem was trying to leave, Deputy Sheriff Randall Tucker came to help Marlett and a scuffle ensued. Eventually, three deputies subdued Odem and placed him in handcuffs. Both Marlett and Tucker received minor scrapes and abrasions.

¶ 8. Deputy Tucker’s testimony corroborated Lieutenant Marlett version of what happened. Tucker testified that he heard a loud voice and he went to Marlett’s office. He testified that Odem told Mar-lett that he was a “sick mother f* * *er and that he was tired of being harassed by all these officers and, that we were sick and full of shit.” Tucker then testified that Marlett told Odem that if Odem “kept on with those types of combative gestures that he would be placed under arrest.”

¶ 9. Christopher Harris testified for Odem. He stated that he “vaguely remembered” the conversation between Marlett and Odem. Harris testified that everything was “very civil,” and Odem’s tone of voice was “calm, like a concerned parent about his child at school.” Harris described Marlett as vulgar and claimed that Marlett had the mean demeanor and combative behavior. Harris described the “whole incident” as “very hostile.”

¶ 10. Odem then took the stand in his own defense. Odem testified that Marlett began their conversation by asking a number of questions about the weapon that was under the front seat, Odem’s employment and the reason he had a Scott County tag on the vehicle when he lived in Madison County. Then, Odem testified to the following:

No curse words were said at this time. He asked me a question, and I said this is a sick situation. He said, you calling me sick, boy? I said, sir, I didn’t call you sick.
He jumped up, he ran around and went out into the hallway and looked around. And by this time, Mr. Tucker was already in the room. He didn’t come in when he heard us scuffle or some cursing. He came in and propped his leg up on the chair right beside me. And he stood there and heard some of the conversation. But he was not there when we started the conversation.
He came in and propped up. He walked past Mr. Tucker and went out into the hallway and looked as if he was looking to see was anybody out there. He looked and he came back and walked directly up in my face and pressed his nose up against my face.
... After he walked back in, he pressed his face up against my face and said, call me sick again, boy. If you say another word, I’m going to put you under arrest. I didn’t say anything. He stepped back and grabbed me in my face and pushed me up in between there. Behind me is a wall and to the left of me is a filing cabinet. He grabbed me in the face and pushed me directly up in the filing cabinet. I fell across the chair. And when I came back, I pushed him off.

¶ 11. Odem was indicted on two counts of assault on a law enforcement officer, pursuant to Mississippi Code Annotated Section 97-3-7 (Supp.2003). The jury was instructed on simple assault on a law enforcement officer and the lesser-included offense of resisting arrest. The court also granted the following defense instruction:

The Court instructs the jury that a person has a right to use reasonable force to resist an unlawful arrest, or to aid another in resisting an unlawful arrest. If you should find therefore, that Larod Odem did willfully, unlawfully, knowingly and feloniously cause bodily injury to Jim Marlett and Randy Tucker, but that this was done in resisting an unlawful arrest, and that the force he used was necessary under the circumstances, then you should find the defendant not guilty.

¶ 12. The jury returned a guilty verdict on two counts of resisting arrest.

DISCUSSION

A. Whether Odem reasonably resisted an unlawful arrest and the charges should have been dismissed.

B. Odem’s right to free speech was violated.

¶ 13. Odem’s argument of the first two issues intertwined. Odem argues that he was unlawfully arrested for his spoken words alone in violation of his right to freedom of speech guaranteed by the First Amendment to the United States Constitution. Thus, we address the first two issues together.

1. Standard of Review

¶ 14. Odem begins his argument with the following statement of the appropriate standard of review:

The standard of review of a trial judges denial of a motion to dismiss is substantial or manifest error. Alexander v. Brown, 793 So.2d 601, 603 (Miss.2001). The evidence is to be considered fairly between the parties. Id.

Unfortunately, Alexander is not controlling precedent for the case now before us. Alexander was a case in chancery court, not a criminal case. The supreme court discussed the different standard of review for a M.R.C.P. Rule 41(b) involuntary dismissal from the standard for a motion for directed verdict. Alexander, 793 So.2d 601, 603(¶ 6). Alexander is simply not applicable here.

¶ 15. Instead, in Roberson v. State, 595 So.2d 1310, 1320 (Miss.1992), the supreme court held:

In considering motions to dismiss or motions for directed verdict on review, all evidence introduced by the prosecution is accepted as true, together with any reasonable inferences that may be drawn from that evidence, and, if there is sufficient evidence to support a verdict of guilty, the motion for a directed verdict must be overruled. Guilbeau v. State, 502 So.2d 639, 641 (Miss.1987).

Thus, we will follow the standard of review announced in Roberson.

2. Did Odem use reasonable force to resist an unlawful arrest?

¶ 16. Odem cites the principle that a person has a right to use reasonable force to resist an unlawful arrest. Boyd v. State, 406 So.2d 824, 826 (Miss.1981). Odem claims that the trial court erred because Odem contends he was resisting an illegal arrest.

¶ 17. Odem argues that this issue is controlled by this Court’s decision, in Brendle v. City of Houston, 759 So.2d 1274 (Miss.App.2000). In Brendle, Odem argues that this Court held that merely uttering vulgar, indecent or profane language in the presence of a law enforcement officer is not sufficient grounds to convict the defendant for profane language if that language does not rise to the level of fighting words. Brendle was arrested when, after telling a police officer, “I’m tired of this God d* * * police sticking their nose in s* * * that doesn’t even involve them.” Id. at 1276(¶ 2). Brendle also used the word “f* * * ” in this exchange. Id. at 1284(¶ 32). Brendle was warned that he would be arrested if he used profane language again. He did, and he was arrested for the crime of public profanity. Id. at 1276(¶4). This Court found that Brendle’s words did not constitute “fighting words,’’and overturned his conviction. Id. at 1284 (¶¶ 32-33).

¶ 18. The State points out that the Mississippi Supreme Court has expressly declined to adopt our reasoning in Brendle. In Jones v. State, 798 So.2d 1241, 1248(¶ 14)(Miss.2001), the supreme court held:

In Brendle v. City of Houston, 759 So.2d 1274 (Miss.Ct.App.2000), Brendle was convicted of public profanity under Miss. Code. Ann. § 97-29-47 and resisting arrest. The Court of Appeals noted that it has been over 70 years since this Court has addressed the issue of what constitutes “profanity” and that we have not had an opportunity to interpret Mississippi’s profanity statute. The Court of Appeals relied on other jurisdictions and the United State Supreme Court opinion of Cohen v. California 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), in overturning Brendle’s conviction. The Court of Appeals found that Brendle did not use fighting words that would incite violence and therefore his subsequent arrest was not lawful. 759 So.2d at 1284. However, this Court is now reluctant to adopt the reasoning of the Court of Appeals under these facts, and finds the reasoning in Terry v. State[, 252 Miss. 479, 173 So.2d 889 (1965)] to be dispositive of this issue. Based upon a careful review of the record, this Court finds that Deputy Newman, did not have sufficient evidence to believe that a breach of the peace was being threatened or a crime was about to be committed. Accordingly, all evidence of acts of resisting the unlawful arrest should be excluded.

Jones, 798 So.2d at 1248(¶ 14)(emphasis added).

¶ 19. Our review must begin with a determination of whether there was “sufficient evidence to believe that a breach of the peace was being threatened or a crime was about to be committed.” Id. There are several important factual differences from this ease and Jones and Brendle. Here, the conduct which lead to the arrest occurred at the sheriffs department, not while the deputy was out on patrol. Odem was arrested not for the crime of public profanity but for the crime of disorderly conduct or breach of the peace. Odem’s language and his physical acts must be examined to determine whether he had an intent to breach the peace or whether he did in fact breach the peace. The cases are similar because Odem’s language contained profane and vulgar words. However, there was testimony that the basis for the arrest was not solely based on his spoken words but also included consideration of his conduct, behavior and demean- or. Indeed, there was evidence that Odem was agitated, loud, irate, and was gesturing combatively. The State argues that Odem’s language coupled with his behavior or conduct created a reasonable inference that a breach of the peace had occurred or was about to occur.

¶20. Odem and Marlett clearly had a confrontation that was at a stalemate. Odem wanted his car. Marlett told him what procedures he would have to follow to get the vehicle. Odem, visibly unhappy, began his conduct that indicated that he did not intend to follow the procedures. Instead, his behavior indicated that he was intent on creating a scene so that Marlett would not enforce the procedures and allow Odem to get his vehicle back immediately, without having to go to the impound lot, secure the proof of ownership, and return to the sheriffs department to prove that he in fact owned the vehicle and should be allowed to remove it from the impound lot. Deputy Tucker confirmed this when he testified that he “heard the language and cussing escalating.” From this evidence, it was reasonable for the jury to determine that Odem was arrested not for his words alone but also for his combative conduct.

¶ 21. The State contends that Marlett had probable case to arrest Odem without a warrant for a breach of the peace threatened or attempted in his presence. The State cites three statutes of which Odem was in violation. First, Mississippi Code Annotated Section 97-35-3 (Rev.2000), in pertinent part, provides:

(1) Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby: ...
(b) insults or makes rude or obscene remarks or gestures, or uses profane language, or physical acts, or indecent proposals to or toward another or others, or disturbs or obstructs or interferes with another or others ...
shall be guilty of disorderly conduct, which is made a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not more than two hundred dollars ($200.00), or imprisonment in the county jail for not more than four (4) months, or by both such fine and imprisonment.

Second, Mississippi Code Annotated Section 97-35-7 (Rev.2000), in pertinent part, provides:

(1) Whoever, with intent to provoke a breach of the peace, or under such circumstances as may lead to a breach of the peace, or which may cause or occasion a breach of the peace, fails or refuses to promptly comply with or obey a request, command, or order of a law enforcement officer, having the authority to then and there arrest any person for a violation of the law, to:
(a) Move or absent himself and any vehicle or object subject to his control from the immediate vicinity where the request, command or order is given, or ...
(i) Act or do or refrain from acting or doing as ordered, requested or commanded by said officer to avoid any breach of the peace at or near the place of issuance of such order, request or command, shall be guilty of disorderly conduct, which is made a misdemeanor and, upon conviction thereof, such person or persons shall be punished by a fine of not more than five hundred dollars ($500.00) or imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment.

Finally, Mississippi Code Annotated Section 97-35-13 (Rev.2000), in pertinent part, provides:

Any person who shall enter any public place of business of any kind whatsoever, or upon the premises of such public place of business, or any other public place whatsoever, in the State of Mississippi, and while therein or thereon shall create a disturbance, or a breach of the peace, in any way whatsoever, including, but not restricted to, loud and offensive talk, the making of threats or attempting to intimidate, or any other conduct which causes a disturbance or breach of the peace or threatened breach of the peace, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than five hundred dollars ($500.00) or imprisoned in jail not more than six (6) months, or both such fine and imprisonment.

¶ 22. We agree with the State. There was sufficient evidence for Lieutenant Marlett to believe he had probable cause to arrest Odem. Therefore, we find that the arrest of Odem was a lawful arrest.

3. Was Odem’s right to free speech violated.

¶ 23. Odem next asserts that the words he used in his exchange with Marlett encompassed constitutionally protected speech not subject to regulation by the State of Mississippi. In the landmark ease of Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), the United States Supreme Court held that there are definite and narrowly limited classes of speech which may be constitutionally punished. These include the lewd and obscene, the profane, the libelous and insulting, or “fighting” words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Id. at 571, 62 S.Ct. 766.

¶ 24. We do not consider whether Odem used lewd and obscene or libelous words. Obscene words are defined as those that appeal to prurient interests and are in some way erotic. There is nothing to indicate that Odem’s words fell into these categories.

¶ 25. The Supreme Court has also held that profane words alone, unaccompanied by any evidence of violent arousal, are not fighting words, and are therefore protected speech. Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). In Cohen, the court emphasized that even offensive and distasteful words must be protected, for “one man’s vulgarity is another’s lyric,” and courts cannot make principled distinctions on matters of taste and style. Id. at 25, 91 S.Ct. 1780. The Cohen court continued by saying that it is the function of words to convey “not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well.” Id at 26, 91 S.Ct. 1780. “The emotive function of an expletive ‘may often be the more important element of the overall message sought to be communicated;’ so long as one does not incite violence, one should not be forced to express one’s anger or disapproval in measured terms.” Johnson v. Campbell, 332 F.3d 199, 212 (3d Cir.2003) (citing Cohen at 26, 91 S.Ct. 1780).

¶26. Although we have already determined that Odem was arrested based on his words together with his conduct, behavior and demeanor, we will nevertheless consider whether Odem’s language constituted fighting words, not speech that is simply disputatious, emotionally charged, or profane. As stated above, fighting words are those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. The probability of words inflicting injury or inciting an immediate breach of the peace tends to depend upon to whom the words are addressed.

¶ 27. Unfortunately, law enforcement officers must endure verbal abuse. In City of Houston v. Hill, 482 U.S. 451, 454, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), the supreme court held that a city ordinance that prohibited the interruption of a police officer in the performance of his duties to be unconstitutionally overbroad. The court commented that the First Amendment “protects a significant amount of verbal criticism and challenge directed at police officers.” Id. at 461, 107 S.Ct. 2502. The court went even further to declare, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. at 462-63,107 S.Ct. 2502.

¶ 28. In Lewis v. City of New Orleans, 415 U.S. 130, 134-36, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), Justice Powell wrote a concurring opinion where he suggested that the fighting words exception recognized in Chaplinsky might impose a more limited application in cases involving speech to a police officer. As he stated, “a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to fighting words.” Id. at 135, 94 S.Ct. 970.

¶ 29. Here, unlike the cases cited, the confrontation occurred not out in public but at the sheriffs department. The concern behind this line of authority is that law enforcement officers must exercise discretion in the performance of their duties. Law enforcement officers must attempt to calm situations instead of escalate them. However, law enforcement officers must remain loyal to their oath.

¶ 30. Terry requires that law enforcement officers have probable cause to make an arrest. They may not simply take offense to words that are expressed at them in a tense situation. We believe it is important that Lieutenant Marlett neither initiated nor had an opportunity to walk away from Odem’s words and combative conduct. Odem became agitated and began shouting profanities when Lieutenant Marlett told him about the protocol he would have to follow to retrieve his vehicle from the impound lot. Odem expressed his displeasure with the inconvenience. Odem did not stop with simply expressing his displeasure. He was combative, and he created a stalemate that arose to the level of “fighting words” that were likely to inflict injury or incite an immediate breach of the peace. Indeed, Odem indicated no intent to back down until Lieutenant Marlett gave him his vehicle without following the proper procedure.

¶ 31. Yes, Lieutenant Marlett was expected to exercise a higher degree of restraint than the average citizen. Whether he exercised the proper restraint was a question for the jury. There was sufficient evidence to support the jury’s finding that the arrest was lawful under the circumstances. Accordingly, we find that there is no merit to Odem’s first two issues.

C. Whether the trial court erred in denying Odem’s motions for directed verdict and for judgment notwithstanding the verdict.

¶ 32. Our standards of review for a denial of a motion for judgment notwithstanding the verdict and a directed verdict are identical. Under this standard, the court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. Coleman v. State, 697 So.2d 777, 787 (Miss.1997). If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. Id. On the other hand, if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. Id. at 788. It is not for this Court to pass on the credibility of witnesses, and where the evidence justifies the verdict it must be accepted as having been found worthy of belief. Grooms v. State, 357 So.2d 292, 295 (Miss.1978).

¶ 33. The State contends that Odem’s motion for a directed verdict is not properly before this Court on appeal. After Odem’s motion for directed verdict was denied at trial, he proceeded with his case by testifying himself and producing a witness to testify on his behalf. The State cites Holland v. State, 656 So.2d 1192 (Miss.1995) for the proposition that when the defendant proceeds with his case, after the state rests, and the court overrules the defendant’s motion for a directed verdict, the defendant has waived the appeal of the directed verdict. This is not a correct reading of Holland.

¶ 34. The relevant language in Holland v. State, 656 So.2d 1192, 1197 (Miss.1995) reads as follows:

Despite the insufficiency of the evidence, Holland’s attorney failed to renew his motion for a directed verdict at the close of Holland’s case. When the defendant proceeds with his case after the state rests and the court overrules the defendant’s motion for a directed verdict, the defendant has waived the appeal of that directed verdict. Espara-za, 595 So.2d at 426; Harrell v. State, 583 So.2d 963, 965 (Miss.1991). Furthermore, the defense failed to test the sufficiency of the evidence with a request for a peremptory instruction or a motion for a j.n.o.v. 'Generally, failure to make a contemporaneous objection at trial waives the issue on appeal. Ratliff v. State, 313 So.2d 386, 388 (Miss.1975). In the absence of a renewal of the directed verdict, a request for a peremptory instruction, or a motion for a judgment notwithstanding the verdict, Holland has waived the sufficiency error on appeal. Griffin v. State, 495 So.2d 1352, 1353 (Miss.1986); Peden v. State, 425 So.2d 1356, 1357 (Miss.1983); Harris v. State, 413 So.2d 1016, 1018 (Miss.1982).

(emphasis added). The key principle in Holland was that the issue of sufficiency of the evidence was waived because the defendant did not give the trial court an opportunity to consider it.

¶ 35. In Simon v. State, 857 So.2d 668, 690 (¶ 54-56)(Miss.2003), the supreme court clarified Holland when it held:

The last sub-issue concerns Simon’s allegation that his trial counsel did not contest the State’s proof that Simon broke into the Parker residence, necessary to prove burglary. He takes issue with the fact that, although trial counsel moved for a directed verdict at the close of the State’s proof — specifically alleging that the State failed to make a prima facie case — counsel did not renew that motion at the close of all proof. Simon cites Holland v. State, 656 So.2d 1192, 1197-98 (Miss.1995), for the proposition that the failure to renew a motion for a directed verdict at the close of all proof constitutes ineffective assistance of counsel. Simon overstates the Holland rule.
In Holland, this Court was concerned with the fact that trial counsel had completely failed to give the trial court the opportunity to review the sufficiency of the evidence at the end of the trial. Not only did counsel fail to renew his motion for directed verdict at the close of all proof, he did not present the trial court with any post-trial motions which would have done the same (i.e. motion for judgment notwithstanding the verdict, request for a peremptory instruction, etc.). Id. at 1197.
Simon’s counsel did file post-trial motions which challenged the legal sufficiency of the evidence, namely a motion for a judgment notwithstanding the verdict or a new trial. Although this motion does not raise the specific issue of whether the State had proven the breaking into element of burglary, the trial court stated upon being presented with the motion for directed verdict:
And also the death of Bobbie Joe Parker. The testimony was that she was shot, and there’s ample evidence in this case of the crime of burglary of a dwelling house and the residence of the Carl Parker family.
The trial court denied the post-trial motion for judgment notwithstanding the verdict or for a new trial. It is clear that the trial judge considered the elements of burglary at the close of the State’s presentation of evidence and at the end of trial and found the State’s proof sufficient to support a verdict. Therefore, it was not ineffective assistance of counsel to fail to move the trial court for a directed verdict at the close of all proof or to fail to particularly stress the alleged lack of proof of one element in that motion or in post-trial motions.

(emphasis added).

¶ 36. The State is incorrect. The sufficiency of the evidence was preserved for appeal by Odem filing his motion for judgment notwithstanding the verdict. Nevertheless, in accordance with the appropriate standard of review and based on the evidence discussed in the preceding section, we find that the evidence was indeed sufficient to justify the verdict. Therefore, we find no merit to this issue.

D. Whether the trial court erred in denying Odem’s motion for a new trial

¶ 37. Odem’s final error contends that the trial court abused its discretion in denying the motion for a new trial. A motion for a new trial should be granted only where the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice.” Wetz v. State, 503 So.2d 803, 812 (Miss.1987). When reviewing the trial court’s denial of a motion for new trial, all evidence favoring the State is accepted as true, and should not be reversed absent a clear abuse of discretion. Id. Here, as discussed in the previous sections, the verdict was not contrary to the overwhelming weight of the evidence. Therefore, we do not find that the trial court abused its discretion by denying Odem’s motion for a new trial.

¶ 38. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF RESISTING ARREST, COUNTS I AND II AND SENTENCE OF SIX MONTHS IN CAUSE NO. 2000-0411 ON COUNT I, AND SENTENCE OF SIX MONTHS IN CAUSE NO. 2000-0411 ON COUNT II, IN THE CUSTODY OF THE MADISON COUNTY SHERIFF PROVIDED, THE EXECUTION OF THE LAST SIX MONTHS IS STAYED AS PRESCRIBED AND THE SENTENCES SHALL RUN CONSECUTIVELY, AND TWO YEARS OF SUPERVISED PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

IRVING, J.,

Dissenting.

¶ 39. The majority, accepting the State’s position that Odem was not arrested solely because of the use of profanity directed at a law enforcement officer, affirms his conviction of two counts of resisting arrest. I believe the evidence, as revealed in the record, is overwhelmingly clear that the only reason Odem was arrested is that he used profanity toward a law enforcement officer. I further believe that our facts here are indistinguishable from those in the Mississippi Supreme Court case of Jones v. State, 798 So.2d 1241 (Miss.2001) and from those in our case of Brendle v. City of Houston, 759 So.2d 1274 (Miss.Ct.App.2000). In both of those cases, the defendant was arrested after peppering a law enforcement official with profanity. In Jones, the Mississippi Supreme Court found a lack of probable cause to support the arrest. In Brendle, we found that the profanity used did not constitute “fighting words” and therefore, did not give rise to probable cause to make an arrest for a violation of Mississippi’s statute against public profanity.

¶ 40. It seems rather clear to me that if the law enforcement officials in Jones and Brendle did not have probable cause to arrest the defendant in those cases, the law enforcement official in this case did not have probable cause to arrest Odem. Consequently, I dissent.

¶ 41. In Jones, Richard Mark Jones, while sitting in the driver’s seat of his Dodge Ram at the Pitt Stop Grocery in Raymond, twice called to Hinds County Deputy Donnie Newman asking Newman to approach Jones’s truck. Jones’s wife and two sons were in the truck with Jones. When Newman walked over to the truck, Jones asked, “Why did you kill my son?” Newman responded by directing Jones to take his family and, leave the premises. Jones persisted with his questioning of Newman about his involvement in his son’s death. Newman told Jones that he was not even on duty at the time of the incident. At that point, Jones started cursing and called Newman a “child killing m-f-. What happened next is best related by quoting directly from the opinion as follows:

Deputy Newman said, “Richard, I am going to give you one more chance. You need to drive out of here with your family. No use in starting a scene here.” At this point, Jones allegedly stuck his head out of the window and began yelling profanity and accusing Newman of having a hand in his son’s death.
At this time, Deputy Newman instructed Jones to get out of his truck. When Jones asked Newman why, Newman responded, “You are under arrest.” At which, Jones’s wife screamed, “Don’t get out. He is going to kill you.” Newman again instructed Jones to step out of the vehicle. When Jones did not, Newman repeatedly attempted to pull open the driver’s side door while instructing Jones to “Get out of the truck.” According to Deputy Newman, Jones finally threw the door open with all of his strength, knocking the deputy back three or four feet. Once he regained his composure, Newman claims he was confronted by Jones standing next to his truck with fists raised yelling, “Let’s get it on.” As Newman approached, Jones dropped his fist and said, “M-f-, hit me. That’s all I want you to do. Just lay a hand on me.” A brief scuffle ensued as Newman wrestled to put handcuffs on Jones. Finally, Deputy Newman was able to cuff Jones and place him in the back of the patrol car. Newman also claims that Mrs. Jones joined in the altercation while the deputy was attempting to arrest her husband.
* * * *
Although he offered inconsistent statements, Newman testified at trial that he had seen the butts of some guns behind the passenger seat of Jones’s truck. Once Jones was safely stowed in the patrol car, Newman returned to the truck. Mrs. Jones and Richard Lee Jones (and Deputy Newman’s statements at the preliminary hearing) assert that Newman asked whether there were any guns in the vehicle before asking that the weapons be turned over. After a short bout of verbal fencing with both Mrs. Jones and the eldest son, Deputy Newman confiscated three weapons (a 12-gauge shotgun, an AR-15 Colt automatic rifle, and a nine-millimeter Smith & Wesson handgun).

Jones, 798 So.2d at 1246 (¶¶ 3-8).

¶ 42. As already mentioned, the Mississippi Supreme Court, after a careful review of the record, found that Deputy Newman did not have sufficient evidence to believe that a breach of the peace was being threatened or a crime was about to be committed. Consequently, the court determined the arrest was unlawful and held that “all evidence of acts of resisting the unlawful arrest should [have been] excluded.” Id at 1248(¶ 14).

¶ 43. In Brendle, Houston Police Officer Trances Ford accompanied Herbert Miller to William Brendle’s mechanic shop so Miller could talk to Brendle about a business dispute. During an ensuing discussion that the two men had with Bren-dle, Brendle said to Officer Ford, “I’m tired of this God d— police sticking their nose in s— that doesn’t even involve them.” Officer Ford then warned Brendle not to use profanity again or he would arrest him. Despite the warning, Brendle again used profanity towards Officer Ford. At that point, Brendle was arrested for using profanity. Prior to trial, the City of Houston amended the profanity charge to allege that Brendle “said the words ‘God d — ’ and ‘f — ’ in a public place — Chickasaw Mechanic, Inc. — and in the presence of two or more persons.” Brendle was also charged with resisting arrest. He was convicted of both charges. Brendle, 759 So.2d at 1276 (¶¶ 2-6).

¶ 44. On appeal, this Court, in an opinion authored by Judge Lee reversed and rendered Brendle’s convictions. In arriving at our decision, we said:

Brendle’s language while vulgar, indecent, and arguably profane, did not rise to the level of “fighting words.” His language was not “by its very utterance” sufficient to incite an immediate breach of the peace. This is not to say that shouting profanities at a police officer is appropriate or proper behavior in any circumstance. In fact, such conduct may give rise to a situation where an immediate breach of the peace may occur. However, the facts in this case do not support such a situation. Rather the testimony shows that some of the vulgarities used by Brendle were spoken as he turned away from Officer Ford attempting to return to his office. Even further, there was no evidence that Brendle’s epithets sought to incite others to prevent his arrest. As such, we find that the circuit court committed manifest error in determining that Bren-dle’s conduct gave rise to probable cause for his arrest for a violation of Mississippi’s statute against public profanity.

Id. at 1284(¶ 32).

¶ 45. After finding that Brendle’s arrest for public profanity was unlawful, we vacated his conviction for resisting arrest because the charge of resisting arrest presupposes an attempt to make a lawful arrest. Id. at (¶ 33).

¶ 46. In the case before us, Odem’s misfortune began with the discovery of his car, by Lieutenant Marlett, in the parking lot of a car wash on Highway 43 North. As Lieutenant Marlett approached Odem’s vehicle, one of the doors to the vehicle was partially opened, revealing the handle of a handgun protruding from under the front seat. The driver of the vehicle, Christopher Harris, advised that he was not aware of the gun’s presence and that the vehicle did not belong to him. Apparently Harris gave Officer Marlett the owner’s first name but could not recall the owner’s last name. As Marlett was talking to Harris, another officer called in descriptive information on the vehicle in an effort to obtain the identity of the owner. Based on the information tendered, the officers were advised that the vehicle belonged to Odem from Scott County.

¶ 47. Harris was arrested for possession of a concealed weapon, and Odem’s car was towed. When Odem came to the Madison County Sheriffs Office in an attempt to obtain assistance in retrieving his car, Lieutenant Marlett described, in the following exchange, the pertinent events leading to Odem’s arrest:

Q. Tell us what transpired that morning?
A. I was in the office, and this was probably about 8:30, or somewhere in that time frame. There was a call over the intercom stating that there were some people in the lobby requesting to talk with me. And I went to the lobby, and Mr. Odem identified himself as the owner of the vehicle and demanded the return of the vehicle right there.
I explained to him, I said, you need to come on back to my office. We’ll talk about it because we found a gun in the vehicle. The person driving your vehicle didn’t know your name. He did get right the first name, but he didn’t know the last name. And we’ll have to address that situation and those items.
So we went to the office. And I told him, I said, Mr. Odem, I said, you will need to get proof of ownership, a title, registration, something showing ownership of the vehicle before we can release this vehicle to you. We can’t just release it to anyone who walks off the street and states that I own this vehicle. I want my vehicle back.
He stated that he — this was in the office. He stated, I have already been to Cannon’s. Evidently Officer O’Cain had told him where it was, and he knew where the vehicle was. And said, I’ve already been there, and the proper paperwork that I need is in the glove box of the vehicle. And I stated that I will call up there and tell Cannon’s that you have a right to go in there and a need to come in there and retrieve the ownership papers and the registration papers, whatever it took. He became a little bit louder and a little more irate. He said, I have already been there. I tried to get the proper paperwork for this vehicle. They wouldn’t let me get the paperwork. This is a bunch of ...
Q. Please say it, please say what he said?
A This is a bunch of s — . He said, I’ve already been there to get this paperwork. They refused to let me get the paperwork out of my own vehicle. I said, well, I’ll call. He said this is just a bunch of MF s — . I’ve already been up there one time to get the paperwork. He said, do you mean that I’ve got to go back up there, get the paperwork, bring it back to your office, show you the paperwork and then go back up there to get my vehicle? I said, yes, that’s exactly what you’ll need to do.
He said this is a bunch of F’ing s— that it seems like that I’m having to run back and forth. This is a bunch of sick s— that seemed like I am just harassed because of the paperwork or the vehicle. I said, no, we cannot release the vehicle without the proper paperwork.
And he became more agitated, and he started shouting.And with all the swear words and loudness, he kept getting louder and louder, and I told him, I said, there’s no need of this language. I will call Mr. Cannon [the owner of the towing company where the vehicle was located]. You can get your paperwork. But the next time that you utter cuss words like you’re doing now, that I’m going to place you under arrest for disorderly conduct.
He said, this is just a bunch of sick s— that I should not have to go through this, and I’m tired of it. And it seems like all you MF’s are harassing us. I think that’s the words he used. And at that time, I told him, I informed him, I said, you are under arrest for disorderly conduct.

¶ 48. Officer Randall Tucker, who testified that he 'heard what transpired between Odem and Marlett, described the events leading up to Odem’s arrest as follows:

Q. Can you explain again what your part in it was?
* * * *
A. When I heard this loud voice, I got up and walked to- the doorway to Lieutenant Marlett’s office where Mr. Odem and Lieutenant Marlett were talking. Mr. Odem was standing just about at the end of Lieutenant Mar-lett’s desk. Lieutenant Marlett was sitting in his chair. Mr. Odem repeatedly stated that he had been harassed and — he used several verbal obscenities—
* * * *
Q. Do you remember specifically what obscenities he was using?
A. Yes, sir, I do.
Q. I apologize for having you repeat it, but could you tell us what he was saying?
A. He told Lieutenant Marlett that he was a sick m-f-and that he was tired of being harassed by all these officers, that we were sick and full of s — .
Q. What if anything happened at that point?
A. Lieutenant Marlett told him that if he kept on with those types of combative gestures that he would be placed under arrest
Q. Was Mr. Odem placed under arrest? Or did you assist in attempting to place him under arrest?
A. Yes, sir, he made one other statement to Lieutenant Marlett that he was full of s— and that he was tired of this. And Lieutenant Marlett told him he was under arrest and asked me if I had handcuffs. I told him, no, I didn’t. He stated he had some there in his desk, he thought; that he would put handcuffs on him. When he reached for Mr. Odem, Mr. Odem backed away and shoved him in the chest with both hands. Lieutenant Marlett fell backwards on his desk. Mr Odem and I began, for lack of a better term, we got into a struggle, a fight. Once I saw him strike Lieutenant Marlett, I mean that’s all I needed. There’s no excuse for that.

¶ 49. Odem had quite a different version of what transpired. He testified that he sent Harris in his truck to the store to make a purchase. When Harris did not return after more than two hours, he went to the Madison County Sheriff Department looking for his vehicle. When he arrived at the sheriffs department, he asked if they had a Christian Harris under arrest. He was told that they did. Odem asked what was Harris arrested for. He was told that Harris was arrested for loitering at a car wash and for possession of an illegal weapon. Odem advised that the pistol belonged to him and that it was registered.

¶ 50. No one could tell him where his vehicle was located. He was told to come back at 8:30 a.m. on Monday morning and to bring Harris with him. On Monday morning, he and Harris arrived at the sheriffs department at 8:30 a.m. as Odem had been instructed. When Odem arrived at the sheriffs department, he identified himself as the owner of the blue Suburban and advised that he was there to pick it up. He was told that he needed to talk to Officer Marlett. He had to wait almost one hour before being allowed to speak with Officer Marlett. When Officer Mar-lett finally appeared, the following occurred:

He walked into the waiting areas where we was, and he said, are you here to see me, Bud? I said, are you Mr. Marlett. He said yes. I said they told me I needed to see Mr. Marlett. He took me and Christian back in his office. There was no one else present in any other offices that we went to. Mr. Tucker was not there. We went in his office, and it was three chairs and a filing cabinet, his desk and the doorway.
Q. What happened when you got there?
A. I went in and sat down in the second chair. And Mr. Marlett went behind his desk, and Christian stood in the doorway. As soon as I walked in and sat down, Mr. Marlett started asking me about the pistol. Is this your pistol? I said, yes, it is. Do you have papers on this pistol? I said yes, sir, I do in the glove compartment of my vehicle. He said, you don’t have papers on the pistol then, do you?
I said, sir, they’re in the glove compartment of my vehicle, and you have my vehicle. I don’t have your vehicle. I took a deep breath. I said, sir, someone abducted my vehicle Saturday night, and the papers are in the glove compartment of my vehicle. Well, you don’t have the papers to the pistol then, do you.
* * * *
(Mr. Robinson, Continuing) So after he stated that since you didn’t have papers with you right then and they were in the glove compartment, you didn’t have paperwork for the gun, what happened after that?
A. I told him, sir, the serial number is on the pistol. It’s registered with the Scott County Sheriffs Department. You can call and get verification on it. And then he said something else. I don’t remember what he said. I said, sir, you can keep the pistol. I just want to get my truck so I can go back to work. He said, “Oh, you work?” And I had on my work uniform and Canton Butane hat on and work clothes. I said yes, sir, I work at Canton Butane. Well, I just admire a person who works. I said, sir, I don’t like being harassed for nothing. I said I haven’t done anything to anyone. I just want to get my truck so I can go back to work.
Well, you can’t have your truck. I said, sir, why can’t I have my truck? Because you got Scott County license plates on that truck. I said, sir, I’m from Scott County. I just started working at Canton Butane a few short months ago. I don’t live here. I don’t have an address here. My girlfriend stays here, and I’m back and forth from Scott County to here.
Q. You didn’t tell him you lived here in Canton?
A. No, never told him I lived here. He went on and questioned me about where my clothes were, where was my furniture, where did I stay. I said, sir, I don’t stay here. I stay with my mother and I drive back and forth, and I spend some time with my girlfriend here.
Q. What did he say?
A. He said, well, I’m going to prove to you that you got to have Madison County license plates. I’m going to call the insurance bureaus. He picked up the telephone and immediately hung it up, he jumped up from behind his desk like he was coming toward me, and I stood up.
Q. At this point, had you used any curse words?
A. No curse words were said at this time. He asked me a question, and I said this is a sick situation. He said, you calling me sick, boy? I said, sir, I didn’t call you sick.
He jumped up, he ran around and went out into the hallway and looked around. And by this time, Mr. Tucker was already in the room. He didn’t come in when he heard us scuffle or some cursing. He came in and propped his leg up on the chair right beside me. And he stood there and heard some of the conversation. But he was not there when we started the conversation.
He came in and propped up. He walked past Mr. Tucker and went out into the hallway and looked as if he was looking to see was anybody out there. He looked and he came back and walked directly up in my face and pressed his nose up against my face. After he walked back in, he pressed his face up against my face and said, call me sick again, boy. If you say another word, I’m going to put you under arrest. I didn’t say anything. He stepped back and grabbed me in my face and pushed me up in between there. Behind me is a wall and to the left of me is a filing cabinet. He grabbed me in the face and pushed me directly up in the filing cabinet. I fell across the chair. And when I came back, I pushed him off.
Q. Okay. So prior to him shoving you in your face, had you raised your hand yet?
A. I had not made the first motion.
Q. Had you been loud and cursing and belligerent?
A. He asked me one time, why are you using that tone of voice with me. I said, sir, I’m hoarse. He said, you need to quiet your tone down. I took a deep breath, and I did not holler the first time.
Q. After I shoved him off of me, Randy Tucker grabbed me in a headlock. Mr. Marlett got up from behind — after falling over the desk, he got up from behind me and came toward me and started kicking me. And I grabbed him in the collar and held him off of me while Mr. Tucker had ■ me in the headlock. They both were trying to throw me on the floor, and I didn’t let them throw me down.
So after they couldn’t throw me down, Mr Tucker steps back and nails me in the face as hard as he could, and I still got Mr. Marlett in the collar because I wouldn’t let him get any closer to me because they were trying to throw me down. By this time, Christian [Harris] was hollering, somebody come and help, somebody come and help.
Randy Tucker turns around and tells him, get out of here, you don’t want none of this s — , boy. You’re in the Madison County Jail and we don’t take this s— around here. They made him go out.

¶ 51. Given the fact that the officers established before towing Odem’s vehicle that the vehicle belonged to Odem, his testimony — that he was questioned not about documents to prove ownership of the vehicle, but about documents to prove ownership of the pistol — is certainly very logical and consistent. This conclusion is buttressed and corroborated by (1) the fact that the officers had arrested Harris for possession of a concealed weapon, (2) the instruction to Odem to bring Harris with him on Monday when he came to the sheriffs department, and (3) Officer Marlett’s testimony that he told Odem, “you need to come on back to my office. We’ll talk about it because we found a gun in the vehicle.”

¶ 52. Despite the rather compelling testimony by Odem, for purpose of our decision, we are duty bound to take the testimony most favorable to the State in resolving the issue before us. Therefore, for purpose of this opinion, I have accepted the State’s version of the facts. Even accepting the officer’s version of the facts, it is rather clear to me from the above colloquies that, notwithstanding Marlett’s assertion that he was arresting Odem for disorderly conduct, he really was arresting him because of the profanity hurdled at him by Odem. It is evident that Odem was not disorderly unless his use of profanity is considered one and the same as disorderly conduct.

¶ 53. While Marlett said that he placed Odem under arrest for disorderly conduct, he also testified that he said to Odem, “You can get your paperwork. But the next time that you utter cuss words like you’re doing now, that I’m going to place you under arrest for disorderly conduct.” I might add that the record before us contains no affidavit charging Odem with disorderly conduct. Odem was indicted for assault on Officers Marlett and Tucker while the officers were acting within the scope of their duties as law enforcement officers. The scope of the their duties is not detailed in the indictment. Presumably, those duties were their efforts to effect Odem’s arrest for disorderly conduct. It is indeed strange that Odem has not been prosecuted for the offense allegedly giving rise to his arrest. As already noted, .he was indicted and prosecuted for assault on Officers Marlett and Tucker, charges which the jury refused to salute.

¶ 54. But, whether Odem was arrested for disorderly conduct, as Marlett contends, or whether he was arrested for using profanity toward Marlett, as the record bears out, one thing is not debatable: there was no probable cause for arresting Odem. If there was no probable cause for arresting the defendant in Jones, who had three passengers and three guns with him at the time he cursed the officer and challenged the officer to a fight in a public place, the issue of probable cause in this case is not even close. Odem had no gun and three passengers to use them. Additionally, he neither challenged Marlett to a fight nor instigated the incident as did the defendant in Jones. All he wanted was his truck so he could go to work. Marlett knew the truck belonged to Odem. Yet, for some inexplicable reason, Marlett refused to release Odem’s truck. Odem was without the use of his truck for the weekend. He followed orders to return to the sheriffs department on Monday morning. He did so but was again denied his truck. He should not now be denied any portion of his freedom.

¶ 55. For the reasons presented, I vehemently dissent. I would reverse and render Odem’s convictions.

KING, C.J., AND BARNES, J., JOIN THIS SEPARATE WRITTEN OPINION.

      . Jones had a history of conflict with the Hinds County Sheriffs Department over what he believed to be the department’s involvement in the death of his son who had been killed in an automobile accident two years earlier.

      . The record does not reflect the name of the entity to which the call was made, but it is clear that the call was made to some authoritative source, perhaps the dispatcher for the sheriff's office.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Tony ROMNEY and Michelle Romney, Appellants v. Calvin Steve BARBETTA d/b/a Barbetta Heating & Air Conditioning, Appellee.
    No. 2003-CA-01676-COA.
    Court of Appeals of Mississippi.
    Sept. 7, 2004.

      Joseph Gerald Albe, attorney for appellants.
    Calvin Steve Barbetta, appellee, pro se.
    Before KING, C.J., LEE, P.J., and GRIFFIS, J.
   KING, C.J.,

for the Court.

¶ 1. Tony and Michelle Romney filed a complaint against Calvin Barbetta for negligence, breach of contract, bad faith breach of contract, and/or fraud in the Circuit Court of Hancock County, Mississippi. The jury rendered a verdict in favor of the Romneys. The circuit court entered a judgment for the Romneys but denied their attorney’s fees. An amended judgment later awarded attorney’s fees to the Romneys. Subsequently, another order was entered denying such relief. Aggrieved, the Romneys appeal and raise the following issues which we quote verbatim:

I. Whether the trial court’s order dated March 5, 2002 was error and void because it was an untimely attempt by the court to modify the 2nd Amended Judgment rendered on July 12, 2000 and declared a final judgment on April 2, 2001.
II. Whether this court should render a Judgment determining the amount of attorney fees that are due to the Plaintiffs; or remand this case to the trial court to make that determination.

FACTS

¶ 2. On June 9, 1997, the Romneys filed a complaint against Barbetta for negligence, breach of contract, bad faith breach of contract, and/or fraud. Barbetta responded and filed a counterclaim for nonpayment of his services.

¶ 3. On March 16, 2000, the jury rendered a verdict in favor of the Romneys. On March 24, 2000, the trial court entered its judgment which awarded damages to the Romneys in the amount of $13,500. At that time, attorney’s fees and punitive damages were not awarded.

¶ 4. About April 3, 2000, the Romneys filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for a new trial on the issue of punitive damages. During this time, the Romneys also filed a motion for attorney’s fees and a motion for pre-judgment interest and costs. Judge John H. Whitfield granted the motions with the exception of the motion for a new trial regarding punitive damages. The trial judge awarded an additur of $7,500 for punitive damages and indicated that if Barbetta did not accept the additur for punitive damages granted by the court, he would grant the motion for a new trial on the issue of punitive damages.

¶5. On April 5, 2000, Judge Whitfield entered an amended judgment which awarded the Romneys punitive damages in the amount of $7,500, in addition to the $13,500 actual damages, and attorney’s fees which were to be determined by the court after a review of counsel’s verified fee petition. Barbetta advised the court that he did not accept the punitive damages additur and objected to the requested attorney’s fees. Barbetta filed a motion for JNOV or, in the alternative, a motion for a new trial. Thereafter, Judge Whitfield granted the Romneys a new trial on the issue of punitive damages and a bench trial on the issue of attorney’s fees.

¶ 6. On June 20, 2000, a second amended judgment was filed which denied Barbet-ta’s motion for JNOV or, in the alternative, a motion for a new trial.

¶ 7. On September 8, 2000, the Romneys filed a motion for expedited trial or, in the alternative, a motion to bifurcate trial of the punitive damages. This motion was heard by Judge Stephen B. Simpson. On April 2, 2001, Judge Simpson entered an order granting the motion to bifurcate trial of the punitive damages. The order also stated that the second amended judgment would be considered a final judgment.

¶ 8. On August 7, 2001, a new trial was held before Judge Kosta Vlahos on the issue of punitive damages and a bench trial on the issue of attorney’s fees. The Rom-neys were awarded punitive damages of $150. Judge Vlahos denied any award for attorney’s fees.

¶ 9. On March 18, 2002, the Romneys filed a motion for a new trial and/or, in the alternative, a motion to find order void. These motions were heard by Judge Vla-hos on April 15, 2002. In his order dated July 14, 2003, denying the motions, Judge Vlahos stated that from September 26, 2001, until March 5, 2002, the Romneys asked the court to modify its judgment. Judge Vlahos stated that he asked counsel for the Romneys to submit an order regarding the award of punitive damages and the court’s ruling on attorney’s fees. According to Judge Vlahos, an order was not submitted.

¶ 10. The Romneys indicated that they filed an application for extraordinary writ to the Mississippi Supreme Court, but did not state when it was filed. On July 14, 2008, the trial judge entered his order denying the motion for a new trial and/or, in the alternative, a motion to find order void. On August 4, 2008, the supreme court dismissed their writ application as being moot.

¶ 11. The Court of Appeals received the Romneys’ appeal on the denial of attorney’s fees. On November 3, 2003, a supplemented record was filed, which included the following one-page colloquy regarding attorney’s fees:

BY THE COURT: The Court has reviewed the accountability act and reviewed the proof as made and is going to rely on the principle that the movant has the burden of persuasion beyond a reasonable doubt, and for me to try to glean through what is counterclaim and what is not it would be an abuse of discretion for me to do it, and the Court is going to deny any based on the fact that there’s been a failure in the proof. That will be as to attorney’s fees.
BY MR. ALBE: I just cite—
BY THE COURT: That—
BY MR. ALBE: Judge Whitfield did not require it.
BY THE COURT: I looked at the accountability act—
BY MR. ALBE: Yes.
BY THE COURT: — and the case law that pertains thereto and I have made my ruling. That will be the ruling of the court.

¶ 12. On May 5, 2004, this Court directed the trial court to submit specific findings of fact and conclusions of law regarding the denial of attorney’s fees in this matter. On July 2, 2004, Judge Vlahos filed his order regarding the requested information and indicated that the transcript on the issue of attorney’s fees would be included as a supplement to the record. On August 18, 2004, this Court received a copy of the transcript of the hearing on the issue of attorney’s fees from the trial court.

¶ 13. Barbetta did not file a brief in response to the Romneys’ appeal.

ISSUES AND ANALYSIS

¶ 14. Because issues I and II are interrelated, we have addressed them together.

I. & II.

Whether the trial court’s order of March 5, 2002, was error and void because it was an untimely attempt by the court to modify the second amended judgment rendered on June 20, 2000 and declared a final judgment and whether this Court should determine the amount of attorney’s fees due.

¶ 15. The Romneys claim that the trial court’s order of March 5, 2002, improperly modified the judgment dated June 20, 2000, granting them attorney’s fees by subsequently denying an award of these fees.

¶ 16. On March 16, 2000, a jury verdict was rendered where the Romneys were granted a judgment for actual damages against Barbetta, but no punitive damages or attorney’s fees were awarded. In response to a posttrial motion by the Rom-neys, Judge Whitfield proposed an additur of $7,500 in punitive damages conditioned upon the agreement of Barbetta. Judge Whitfield also determined that Barbetta’s frivolous counterclaim justified an award of attorney’s fees. Judge Whitfield determined that attorney’s fees were appropriate with the specific award to be made conditioned upon evidence of the attorney’s fees incurred.

¶ 17. Barbetta declined to accept the additur of punitive damages and Judge Whitfield thereafter submitted the issue of punitive damages to a jury.

¶ 18. Judge Whitfield resigned and was replaced by Judge Stephen Simpson. On April 2, 2001, Judge Simpson entered the following order:

This cause having come before the Court oh the Motion to BIFURCATE TRIAL OF THE PUNITIVE DAMAGES; and, the Court finds that the motion is well taken and should be sustained. It is therefore:
ORDERED AND ADJUDGED that the remainder of the trial to determine the amount of punitive damages is bifurcated from all other matters that have been decided by this court.
IT IS FURTHER ORDERED that prior 2nd Amended Judgment signed by this court on June 12, 2000 in this matter is a final judgment.

¶ 19. Judge Simpson did not take any further action in this matter. Thereafter, Judge Kosta Vlahos undertook the handling of this case. On August 7, 2001, Judge Vlahos conducted a trial on the issue of punitive damages. The jury awarded $150 to the Romneys for punitive damages. The Romneys’ attorney, in accordance with the instruction of Judge Whitfield, had filed an affidavit as to the requested attorney’s fees. On August 9, 2001, Judge Vlahos held a hearing on this request. During the course of the hearing, Judge Vlahos asked the Romneys’ attorney to distinguish between the time spent in defense of Barbetta’s counterclaim and that time spent in preparation for the presentation of the Romneys’ casein-chief. The Romneys’ attorney responded that he was of the opinion that it was all one and the same and therefore he could not set out separately the time spent in defense of a counterclaim and the time spent on the Romneys’ case-in-chief. Based upon the failure to separate these items, Judge Vlahos declined to award any attorney’s fees to the Romneys. The Romneys now claim that the failure to award any attorney’s fees was in fact an untimely effort to modify what had been declared a final judgment on April 2, 2001 by Judge Simpson.

¶ 20. The trial court determined that the counterclaim filed by Barbetta provided appropriate justification of an award of attorney’s fees pursuant to Mississippi Code Annotated 11-55-5(1) (Supp. 1998). However, the court also determined that the award of attorney’s fees would be made only after the presentation of proper proof of attorney’s fees had occurred. While the court may find a case appropriate for the award of attorney’s fees, the actual award of attorney’s fees is still dependent upon specific proof. A&F Properties, LLC v. Lake Caroline, Inc., 775 So.2d 1276(¶ 22) (Miss.Ct.App.2000). When a party fails to present competent evidence to determine attorney’s fees, the award may be denied. Id. The abuse of discretion standard applies regarding the award of attorney’s fees, and such awards must be supported by credible evidence. Mississippi Power & Light Co. v. Cook, 832 So.2d 474(¶ 39) (Miss.2002). That proof to be considered by the court in the award of attorney’s fees is as follows:

In determining an appropriate amount of attorneys fees, a sum sufficient to secure one competent attorney is the criterion by which we are directed. Rees v. Rees, 188 Miss; 256, 194 So. 750 (1940). The fee depends on consideration of, in addition to the relative financial ability of the parties, 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 v. McKee, 418 So.2d 764, 767 (Miss.1982). These factors are also set forth in Rule 1.5 of the Mississippi Rules of Professional Conduct.

¶ 21. The^ trial court concluded that despite finding an entitlement to attorney’s fees, the Romneys did not offer sufficient proof upon which to make an actual award ■ of attorney’s fees.

¶ 22. Because there must be a rational basis upon which any award of attorney’s fees is made, this Court cannot say that the decision not to enter an actual award was error. Likewise, we find that the trial court’s determination that there was insufficient proof upon which to enter an actual award of attorney’s fees was not a modification of a final judgment.

¶23. Accordingly, this Court finds no merit in the issues set forth in the Rom-neys’ appeal. ;

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY IS AFFIRMED. ALL COSTS OF THE APPEAL ARE TAXED TO THE APPELLANTS.

BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, GRIFFIS, AND BARNES JJ., CONCUR.


author: KING, C. J.,

text:
    Catlin WILLIAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-01378-COA.
    Court of Appeals of Mississippi.
    Sept. 7, 2004.
    William E. Goodwin, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., LEE, P.J. and GRIFFIS, J.
   KING, C. J.,

for the Court.

¶ 1. Catlin Williams was tried in absentia on the charges of burglary of a building and conspiracy to commit the crime of burglary of a building. Williams was convicted of the charges by the Pike County Circuit Court. He was later taken into custody and sentenced to a term of eighty-four consecutive months on count one and sixty consecutive months on count two, in the custody of the Mississippi Department of Corrections. These sentences were to be served concurrently. Aggrieved, Williams appeals, raising the following issue as error:

¶ 2. Whether the trial court erred in proceeding to trial in Williams’ absence.

FACTS

¶ 3. Upon returning to her residence/store in Progress, Mississippi, on October 20, 2002, at approximately 11:00 p.m., Mrs. Patricia Smith indicated that her granddaughter, Tara Williams, noticed that a window had been broken in the store and some items were missing. Ms. Williams called 911 to advise that someone had broken into the store.

¶ 4. During the investigation of the incident, Officer Davis Haygood of the Pike County Sheriffs Department received the name of Catlin Williams as one of several potential suspects. Based on the information received, a warrant was issued for Williams’ arrest and faxed to the Washington Parish Sheriffs Office in Franklinton, Louisiana.

¶ 5. Officer Haygood received a phone call from Officer Bennie Creel of the Washington Parish Sheriffs Office, advising him that Williams had been arrested on November 20, 2002. Haygood went to the facility to interview Williams. Prior to interviewing Williams, Haygood read Williams his Miranda rights. Williams signed the waiver of rights form. His statement was recorded on audiotape.

¶ 6. In January 2003, Williams was indicted for the offenses of burglary of a building and conspiracy to commit the crime of burglary of a building.

¶ 7. Prior to the beginning of trial on April 16, 2003, the court noticed that Williams was not present. Williams’ attorney indicated that when he spoke with Williams two days prior to the trial date, Williams stated that he would be present. Efforts were made to locate Williams, including telephone calls to his residence and calls to area hospitals. A bench warrant for Williams’ arrest was issued. The prosecutor made an ore tenus motion asking the court to allow the State to proceed with the trial of Williams in absentia, pursuant to Jefferson v. State, 807 So.2d 1222 (Miss.2002).

¶ 8. The State then offered the sworn statement/testimony of Williams’ attorney, Morris Sweatt. Sweatt informed the court of the efforts he made to ensure that his client would be in court for trial. Sweatt did not stipulate that Williams should be tried in absentia and objected to the court doing so.

¶ 9. Sweatt stated that he last talked with Williams on April 14, and Williams assured him that he wanted a trial. Sweatt indicated that Williams was informed to be at the courthouse at 9:00 a.m., April 16, and indicated that he would. Sweatt made several attempts to call Williams.

¶ 10. Don Evans, Sweatt’s investigator, testified that he first called the bonding company because Williams was absent from court. Evans then called Williams’ residence and area hospitals in an attempt to locate him.

¶ 11. Attorney Bill Goodwin testified that Williams and his mother approached him at the courthouse on April 15 inquiring about his services. Goodwin indicated that Williams advised him that his trial was set for the next morning. Goodwin stated that he told Williams that because he was being represented by another attorney, he could not speak with him about the matter.

¶ 12. After review of the file, the court noted that Williams had been present on prior hearing dates. The court determined that Williams had deliberately, knowingly, and intentionally absented himself from the trial for the specific purpose of avoiding prosecution. The court allowed Williams to be tried in absentia.

¶ 13. At the trial, the State offered the testimony of Officer Haygood, Patricia Smith, and Kim Smith. The audiotape of Williams’ statement was played for the jury as well. The jury found Williams guilty of both charges.

¶ 14. At the sentencing hearing on May 29, 2003, Williams was-present and sentenced to serve a term of eighty-four consecutive months on count one and sixty consecutive months on count two, in the custody of the Mississippi Department of Corrections. These sentences were to be served concurrently.

¶ 15. On June 18, 2003, Williams’ attorney filed a motion for JNOV, or in the alternative, a new trial. In that motion, Williams claimed that he could not be at trial because he did not have transportation from his home in Franklinton, Louisiana and was unable to notify the court of the problem. This motion was deniéd. Williams now appeals the court’s decision to have him tried in absentia.

STANDARD OF REVIEW

¶ 16. The issue of whether the trial court erred in trying a defendant in absen-tia is a question of law which this Court reviews de novo. Jefferson v. State, 807 So.2d 1222(¶ 6) (Miss.2002).

ISSUE AND ANALYSIS

¶ 17. Williams alleges that he was denied the right to be present at his trial. He claims that there was no evidence to support the decision to allow his trial in absentia. Williams maintains that no testimony was given that indicated that he attempted to purposefully avoid trial.

¶ 18. Mississippi Code Annotated Section 99-17-9 (Rev.2000) states that:

In criminal cases the presence of the prisoner may be waived, and the trial progress, at the discretion of the court, in his absence, if he be in custody and consenting thereto. If the defendant, in cases less than felony, be on recognizance or bail or have been arrested and escaped, or have been notified by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or be in any way in default for nonappearance, the trial may progress at the discretion of the court, and judgment final and sentence be awarded as though such defendant were personally present in court.

¶ 19. However, in addition to the above statute, Jefferson v. State, 807 So.2d 1222(¶ 18) (Miss.2002) carved out an exception where a defendant may be tried in absentia based on willful, voluntary, and deliberate actions to avoid trial.

¶ 20. In this matter, testimony was offered by the State which indicated that Williams was clearly aware of his trial date. Williams failed to contact his attorney or the court regarding his whereabouts. Therefore, we find no error in the trial court’s decision to try Williams in absentia.

¶ 21. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I BURGLARY OF A BUILDING AND SENTENCE OF EIGHTY-FOUR CONSECUTIVE MONTHS; AND COUNT II CONSPIRACY TO COMMIT BURGLARY OF A BUILDING AND SENTENCE OF SIXTY CONSECUTIVE MONTHS TO BE SERVED CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, PAY A $10,000 FINE AND $800 IN RESTITUTION IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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


author: LEE, P.J.,

text:
    Raymond BILBO, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-02093-COA.
    Court of Appeals of Mississippi.
    Sept. 7, 2004.
    Raymond Bilbo, Appellant, pro se.

      Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before BRIDGES and LEE, P.JJ., CHANDLER and GRIFFIS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On April 16,1998, an officer with the Columbus Police Department was called to the scene of an automobile accident. Raymond Bilbo, who was at the scene of the accident, informed the officer that he was driving one of the vehicles involved in the accident. The officer noted the smell of alcohol on Bilbo’s breath, and Bilbo took an Intoxilyzer test. Bilbo scored a .22 on the test, well above the legal limit. In June of 1999, Bilbo was served and picked up by the police. Bilbo was arraigned in August of 1999, left town shortly thereafter, and evaded prosecution until he was arrested by the Alabama police in July 2002. Bilbo had two prior convictions for driving under the influence. At his arraignment he pled guilty to a DUI 3 third offense under the habitual offender statute. Notably, Bilbo also had two prior felony convictions. Bilbo was sentenced to serve three years in the custody of the Mississippi Department of Corrections, followed by two years of post-release supervision, plus fines totaling $2,000. It is from this sentence that Bilbo filed his petition for post-conviction relief. After reviewing the petitioner’s criminal file and the court’s file, the trial judge denied Bilbo’s motion for post-conviction relief without a hearing. It is from this denial that Bilbo has filed his appeal.

¶ 2. On appeal, Bilbo raises a number of complaints which are summarized as follows: (1) Bilbo claims he was never indicted; (2) Bilbo claims he never received a copy of the indictment; (3) Bilbo claims he was never arraigned; and (4) Bilbo claims his attorney rendered “insufficient representation” because she only spoke with him on the day of his arraignment and plea and allegedly told Bilbo that if he did not plead guilty he could be tried pursuant to Mississippi Code Annotated Section 99-19-83 and be sentenced to life without parole. Finding these claims to be without merit, this Court affirms the trial court’s denial of Bilbo’s petition for post-conviction relief.

STANDARD OF REVIEW

¶3. When a trial court has denied a petition for post-conviction relief, this Court will examine whether the denial is clearly erroneous. Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999). The trial judge’s obligation is to review the “original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack,” in order to resolve the merits of the allegations. Miss.Code Ann. § 99-39-11(1) (Rev.2000). The burden is upon Bilbo to prove by a preponderance of the evidence that he is entitled to the requested post-conviction relief. Miss.Code Ann. § 99-39-23(7) (Rev.2000).

I. DID THE TRIAL COURT ERR IN DENYING BILBO’S MOTION FOR POST-CONVICTION RELIEF?

¶ 4. Bilbo argues that he was never indicted for the offense of driving under the influence. Bilbo invites this Court to find that, although he confessed under oath in open court to a third offense of driving under the influence, he was never indicted for such a crime. Although the indictment does not appear in the record before this Court, a copy of the transcript of Bilbo’s guilty plea hearing was included in the record. During the guilty plea, Judge Montgomery thoroughly questioned Bilbo regarding his understanding of the charges, his Sixth Amendment rights, his Fifth Amendment rights, and his Eighth Amendment rights under the United States Constitution.

¶ 5. When asked if he understood that he had the right to a public trial by jury, the right to confront witnesses against him, the right to be represented by an attorney, the right to appeal, and the right to choose whether to testify on his own behalf, Bilbo responded under oath that he did, indeed, understand these rights. Bilbo acknowledged that he understood that by pleading guilty he was waiving these rights. Bilbo further acknowledged that he understood that he was being charged with a third offense of driving under the influence. Bilbo represented under oath that his attorney had explained the charges to him and that his attorney had explained the possible defenses to the charges. The court informed Bilbo of the minimum and maximum sentence for a third offense DUI, and Bilbo acknowledged that he understood the penalty he could receive if he pled guilty.

¶ 6. It is a well-settled principle of law that a valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment against a defendant. Reeder v. State, 783 So.2d 711, 720(¶ 36)(Miss.2001) (citing Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990)). Therefore, by pleading guilty, Bilbo waived his right to appeal based upon the indictment.

¶ 7. Ruling on the petition for post-conviction relief, the court found that Bilbo had voluntarily entered the guilty plea, a finding supported by the transcript of the guilty plea. We place a strong presumption of validity upon an individual’s statements made under oath. Mowdy v. State, 638 So.2d 738, 743 (Miss.1994). The burden is upon Bilbo to prove by a preponderance of the evidence that he is entitled to the requested post-conviction relief. Miss. Code Ann. § 99-39-23(7) (Rev.2000). Where, as here, the only evidence supplied by the petitioner are his own musings which contradict his prior sworn testimony, the petitioner has failed to meet this burden. Harris v. State, 578 So.2d 617, 620 (Miss.1991). Additionally, when the trial court can determine that a factual assertion by the movant in a post-conviction relief proceeding is belied by unimpeachable evidence in the transcript of the case that led to conviction, no hearing is required and the trial court may summarily dismiss the motion. Harris v. State, 578 So.2d 617, 620 (Miss.1991).

¶ 8. The order denying the petition for post-conviction relief reflects that the trial judge reviewed Bilbo’s criminal file. The trial court found that Bilbo was served with his indictment on June 7, 1999, and that the indictment listed Bilbo’s previous convictions for driving under the influence, as well as his previous two felony convictions. The trial court also determined that based upon Bilbo’s file, he waived a formal reading of his arraignment and was subsequently arraigned on August 16, 1999. Bilbo has failed to show that the trial court erred in denying his petition for post-conviction relief. Accordingly, assignments of error 1 through 3 lack merit.

II. BILBO’S CLAIMS OF INSUFFICIENT REPRESENTATION

¶ 9. Bilbo argues that his attorney did not provide adequate representation. Claims of ineffective assistance of counsel are addressed under the two-part tests presented in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and applied to guilty pleas in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Under this standard, the claimant must show (1) that counsel’s performance was deficient and (2) that the deficient performance was prejudicial to the defendant in the sense that it undermined confidence in the outcome. Wilson v. State, 577 So.2d 394, 396 (Miss.1991). Under this second prong, Bilbo must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Where a defendant enters a plea on advice of counsel, the attorney’s performance is deemed “deficient” for purposes of the Strickland standard if it falls below “the range of competence demanded of attorneys in criminal cases.” Hill, 474 U.S. at 56, 106 S.Ct. 366, quoted in Wilson, 577 So.2d at 396. A defendant who pleads guilty to a crime is “prejudiced” by his counsel’s erroneous advice if “he would have insisted on going to trial if he had been correctly informed.” Wilson, 577 So.2d at 396.

¶ 10. Bilbo argues that his attorney advised him that should he proceed to trial, he could receive a sentence of life without parole. Mississippi Code Annotated Section 99-19-83 provides that every person convicted of a felony in this state who has been twice previously convicted of a felony and has been sentenced to and served separate terms of one year or more, whether in this state or another state, and where any one of the felonies was a crime of violence “shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.” Miss.Code Ann. Sec. 99-19-83 (Rev.2000). Bilbo has two prior felony convictions, one for burglary and larceny and another for armed robbery. The order denying Bilbo’s petition for post-conviction relief clearly states that the indictment “listed the Petitioner’s previous DUI charges and his two previous felony convictions.” Additionally, during his guilty plea, Judge Montgomery questioned Bilbo about the felonies, and Bilbo acknowledged that the two prior convictions were correct. Bilbo has failed to show that his attorney’s advice and performance meet the Strickland test. The advice was not erroneous, and Bilbo has failed to show any prejudice resulting from such advice.

¶ 11. Bilbo also argues that his attorney “did not investigate or represent Appellant to her best, except get the Appellant a plea.” Bilbo has failed to present a scintilla of evidence that his attorney’s performance was deficient and that this deficiency resulted in prejudice to him. Bilbo’s vast accusation that his attorney “did not investigate or represent Appellant to her best” falls short of the requirements set forth in Strickland. This Court finds that this assignment of error lacks merit.

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

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


text:
    Joseph DAVIS, Jr., Appellant v. J.C. PENNEY COMPANY, INC., a Foreign Corporation, Appellee.
    No. 2003-CP-00381-COA.
    Court of Appeals of Mississippi.
    Sept. 7, 2004.
    Joseph Davis, appellant, pro se.
    Thomas E. Vaughn, Gulfport, attorney for appellee.

      Before KING, C.J., LEE, P.J. and GRIFFIS, J.
   KING, C.J.,

for the Court.

¶ 1. On February 20,1998, Joseph Davis, Jr. went to the J.C. Penney store in Biloxi attempting to return some merchandise purchased at another J.C. Penney store. Davis claims that employees of J.C. Penney were hostile toward him and called the Biloxi Police Department resulting in his arrest for trespassing and resisting arrest. On June 8, 1998, Davis was convicted of resisting arrest and trespassing by the Biloxi Municipal Court. Davis appealed the conviction to the County Court of Harrison County. On December 2, 1998, the conviction was affirmed by the county court. Davis then appealed the conviction to the Circuit Court of Harrison County. On March 20, 2000, the circuit court affirmed the conviction of the county court. Davis filed a notice of appeal with the Mississippi Supreme Court. That appeal was deflected to the Court of Appeals, which on July 17, 2001, dismissed Davis’ appeal holding that it was without jurisdiction to consider the appeal pursuant to Mississippi Code Annotated Section 11-51-81 (1972).

¶ 2. On February 19, 1999, Davis filed a civil action in the Circuit Court of Harrison County against J.C. Penney and Steve Wright, an employee of J.C. Penney for damages arising out of the events of February 20, 1998. According to the record, service of process was served on J.C. Penney only.

¶ 3. On November 13, 2001, the defendant filed a motion for summary judgment and sanctions against Davis. The hearing on the motion was originally scheduled for July 2002, but due to scheduling conflicts, did not actually occur until August 7, 2002. On August 6, 2002, Davis filed a motion seeking to continue the hearing on the defendant’s summary judgment motion.

¶ 4. On August 7, 2002, the date of the hearing, Davis filed his response to the defendant’s motion for summary judgment. The trial court denied Davis’ motion for a continuance and after the hearing, granted the Defendant’s motion for summary judgment and sanctions against Davis.

¶ 5. Davis has now appealed from that decision to grant the motion for summary judgment and sanctions against him.

¶ 6. Pursuant to Mississippi Rule of Appellate Procedure 28, an appellant’s brief must contain the following: (1) a certificate of interested persons, (2) tables, (3) a statement of the issues, (4) a statement of the case, (5) a summary of the argument, (6) an argument, and (7) a conclusion. The brief submitted by Davis fails to comply with M.R.A.P. 28. In the document filed with this Court, Davis declines to identify any issues, saying instead that he will make the Court aware of his issues upon oral argument. In the absence of clearly identified issues, there is nothing for this Court to consider or address in an appeal. Giuffria v. Concannon, 851 So.2d 436(¶ 11) (Miss.Ct.App.2003); King v. State, 857 So.2d 702(¶ 23) (Miss.2003); Jones v. Howell, 827 So.2d 691(¶ 40) (Miss.2002). On this basis, “the Court is not required to further consider this appeal.” Giuffria, 851 So.2d 436 at (¶ 11).

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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