text:
    William P. GOURLAY v. Eddie Andrew WILLIAMS, III.
    No. 2003-EC-02380-SCT.
    Supreme Court of Mississippi.
    June 10, 2004.
    Glen H. Williams, attorney for appellant.

      Linda F. Coleman, Clarksdale, James K. Warrington, attorneys for appellee.
    Before SMITH, C.J., COBB, P.J., and CARLSON, J.
   SMITH, Chief Justice, for the Court.

¶ 1. This is an appeal from an election contest. Incumbent William P. Gourlay filed a petition pursuant to Miss.Code Ann. § 23-15-963 (Rev.2001) contesting the qualifications of Eddie Andrew Williams, III. Williams defeated Gourlay in the 2003 Democratic Party primary election for the office of Bolivar County Supervisor (District 1). After a hearing, the petition was denied by the Bolivar County Election Commission. Gourlay appealed to the circuit court.

¶ 2. During the proceedings before the circuit court, Williams made an ore tenus motion that any such contest brought prior to the general election questioning his qualifications as a party nominee should have been brought pursuant to Miss.Code Ann. § 23-15-961 (Rev.2001). The trial court agreed and dismissed the petition because Gourlay did not satisfy the deadline set forth in § 23-15-961(1).

FACTS

¶ 3. By the March 1, 2003, qualifying deadline, only William P. Gourlay and Eddie Andrew Williams, III, had qualified for the Democratic Party nomination for the office in question. Williams became the Democratic nominee by wining the August 5, 2003, Democratic primary. On September 4, 2003, Gourlay, relying on § 23-15-963, timely filed a petition alleging that because Williams was not a resident of Bolivar County and he was unqualified. After a hearing, the Bolivar County Election Commission denied the petition, and Gourlay appealed to the circuit court.

¶ 4. This Court appointed the Honorable Henry L. Lackey, Circuit Judge to preside over the matter. A hearing was conducted over two days during which both parties presented several witnesses and evidence regarding Williams’s residence. Gourlay alleged that Williams actually lived with his wife and child in an apartment in Clarksdale, Mississippi (Coahoma County) despite the fact that Williams was the Mayor of Rosedale, Mississippi (Bolivar County). These allegations were supported by substantial evidence including video surveillance tapes provided by a private investigator hired by Gourlay.

¶ 5. As the hearing neared its conclusion, Williams moved to dismiss the petition based on the fact that Gourlay relied on the wrong statute for challenging the qualifications of a candidate for party nominee prior to the general election. The trial court agreed and, without ruling on the issue of residency, dismissed the petition. The trial court held that § 23-15-961 was the only statute which allowed a person to contest the qualifications of a candidate for party nominee prior to the general election. It held that § 23-15-963 provided the procedure for challenging the qualifications for an independent candidate. Because Gourlay failed to file his petition prior to the expiration of the ten-day deadline provided under § 23-15-961, it was time barred.

¶ 6. Filing a bill of exceptions, Gourlay appealed and requested that this Court stay the general election. By order dated October 31, 2003, this Court denied the stay request.

ANALYSIS

¶ 7. Gourlay raises several issues, but all generally fall under the Court’s interpretation of §§ 23-15-961 and 23-15-963.

I. Mississippi Code Ann. §§ 23-15-961 vs. 23-15-963: Whether § 23-15-963 is Available to Contest the Qualifications of a Party Nominee Prior to the General Election?

¶ 8. Miss.Code Ann. §§ 23-15-961 and 23-15-963 address election contests challenging the qualifications of a candidate prior to the general election. The critical distinction between the application of § 23-15-961 and § 23-15-963 is the fact that the former is the sole means for contesting the qualifications of a candidate seeking office as a party nominee. Because the contest in the instant case concerns the qualifications of Williams as a party nominee, it should have been filed pursuant to § 23-15-961.

¶ 9. In reviewing questions of law, this Court proceeds de novo. Callahan v. Leake County Democratic Executive Comm., 773 So.2d 938, 940 (Miss.2000) (collecting authorities). We have long held that where a statute is plain and unambiguous there is no room for construction. Id.

¶ 10. The trial court was correct in holding that this suit was barred. However, we note that Section 23-15-961 provides in pertinent part:

(1) Any person desiring to contest the qualifications of another person as a candidate for nomination in a political party primary election shall file a petition specifically setting forth the grounds of the challenge within ten (10) days after the qualifying deadline for the office in question. Such petition shall be filed with the executive committee with whom the candidate in question qualified.
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(7) The procedure set forth above shall be the sole and only manner in which the qualifications of a candidate seeking public office as a party nominee may be challenged prior to the time of his nomination or election. After a party nominee has been elected to public office, the election may be challenged as otherwise provided by law. After a party nominee assumes an elective office, his qualifications to hold that office may be contested as otherwise provided by law.

Miss.Code Ann. § 23-15-961 (Rev.2001) (emphasis added). This Court leaves it to Gourlay to determine what other procedures are “otherwise provided by law.”

CONCLUSION

¶ 11. For these reasons, we affirm the trial court’s judgment.

¶ 12. AFFIRMED.

WALLER AND COBB, P.JJ., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J„ NOT PARTICIPATING.


source: Caselaw Access Project

author: GRIFFIS, J., for the Court. LEE, J.,

license: Public Domain

text:
    Calvin E. ARMSTRONG, Appellant, v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.
    No. 2002-CC-01863-COA.
    Court of Appeals of Mississippi.
    March 2, 2004.
    Rehearing Denied June 1, 2004.

      Calvin E. Armstrong, Appellant, pro se.
    Albert B. White, Madison, John Wesley Garrett, Clinton, attorneys for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Calvin E. Armstrong was disqualified from receiving unemployment benefits by the Mississippi Employment Security Commission on the ground that he was terminated from his employment for misconduct. The circuit court affirmed the denial of benefits. We find that the circuit court erred. We reverse and render on the denial of benefits. We remand this case to the Mississippi Employment Security Commission solely for the purpose of determining the amount of unemployment benefits to be paid Armstrong.

FACTS

¶2. Armstrong was employed with the City of Greenville as a recreation supervisor. The City claimed that he was discharged for dereliction of work duties. As part of his responsibilities, Armstrong was to maintain and keep clean a recreational softball park facility.

¶ 3. The City received complaints from citizens that the softball fields and restrooms were not clean. The park director investigated the complaints and confirmed that the park facilities were not clean. On May 9, 2001, the park director gave Armstrong instructions that he needed to clean the recreational park facility immediately.

¶ 4. On May 14, 2001, the Greenville Park’s Commission Board met to discuss Armstrong’s work performance. The board placed Armstrong on a six-month probation. At the end of the six months the board would evaluate his performance and decide if he should be terminated. Two days later, the park director observed that the conditions of the recreational park facility still had not improved.

¶ 5. As a result, the park director recommended Armstrong be pre-terminated immediately, instead of waiting the six months. This meant that Armstrong was given forty-eight hours to refute any and all charges brought against him prior to actual termination. Armstrong provided the City a notice stating he planned to refute the claims brought against him. However, he was unable to attend the scheduled meeting because his son was ill. Armstrong was terminated on May 21.

¶ 6. Thereafter, Armstrong filed a claim for benefits with the Mississippi Employment Security Commission in June. The claims examiner disqualified Armstrong for benefits on the ground that he was discharged for misconduct connected with his work. Armstrong appealed, and a hearing was held with the appeals referee. At the hearing, Armstrong denied the allegations and claimed he started cleaning the recreational park facility as instructed. The City’s park director, Sandra Yeager, testified that Armstrong was given many opportunities to correct the situation. Yet, Yeager claimed that Armstrong still failed to properly clean the park. Yeager considered Armstrong’s failure to follow directives given by his supervisor as insubordination, which was ground for termination. The appeals referee, the board of review, and the circuit court agreed that Armstrong’s actions constituted misconduct and denied benefits. Armstrong has perfected his appeal.

STANDARD OF REVIEW

¶ 7. “In any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” Miss.Code Ann. § 71-5-531 (Rev. 2002). In Allen v. Mississippi Employment Security Commission, 639 So.2d 904, 906 (Miss.1994), the Mississippi Supreme Court held that:

This Court’s standard of review of an administrative agency’s findings and decisions is well established. An agency’s conclusions must remain undisturbed unless the agency’s order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights. A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the agency.

¶ 8. Under this standard of review, we give substantial deference to an administrative agency’s decision. Our search in a typical employment security commission case is whether the agency’s decision was supported by substantial evidence or was arbitrary or capricious. Here, unfortunately, the agency appellee failed to provide this Court with a brief setting forth its argument and authorities.

¶ 9. In W.T. Raleigh Co. v. Armstrong, 165 Miss. 380, 380, 140 So. 527, 527-28 (1932), the Mississippi Supreme Court recognized that there is no uniform rule of procedure to guide the reviewing court when an appellee fails to file a brief. The court discussed the two schools of thought on the appropriate procedure. First, the appellee’s failure could be considered a default and as a confession of the errors assigned by the appellant, requiring automatic reversal. Id. Second, the reviewing court could disregard the appellee’s failure to file a brief, but would not be obligated to undertake an exhaustive search to substantiate the appellee’s positions. Id. The court concluded that “taking into view the argument presented by appellant, the basis or grounds of the judgment, and the facts in support of it are not apparent, or are not such that the court could with entire confidence and safety proceed to affirmance, the judgment will be reversed without prejudice.” Id. at 527-28.

¶ 10. It this appeal, we are not in a position to proceed with entire confidence to affirm this case. We are convinced that Armstrong’s argument is adequately supported by the record. Accordingly, the appellee’s negligence in its failure to present this Court with a brief outlining its position warrants a more deferential emphasis on Armstrong’s argument. Selman v. Selman, 722 So.2d 547, 551 (Miss.1998); Dethlefs v. Beau Maison Dev. Corp., 458 So.2d 714, 717 (Miss.1984); N.E. and R.H. v. L.H., Jr., L. H. and L.T., 761 So.2d 956, 962 (¶ 14) (Miss.Ct.App.2000). As such, we proceed with a discussion of the merits of this case and examine this appeal according to this standard of review.

ANALYSIS

I. Whethér the circuit court erred in not reversing the board of review because its decision was unsupported by substantial evidence.

¶ 11. Armstrong argues that the Commission’s findings were not based on substantial evidence that he engaged in misconduct and was disqualified for benefits under Mississippi Code Annotated Section 71-5-513A (l)(b).

“Misconduct” has been defined as:

The term “misconduct,” as used in the unemployment compensation statute, was conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.

Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982). We must consider whether Armstrong’s conduct rose to the level of misconduct, as defined above.

¶ 12. In Joseph v. Mississippi Employment Security Commission, 111 So.2d 410, 411 (¶ 1) (Miss.2000), Joseph was fired from her job as a bank teller due to a shortage of $2,000 in her cash drawer. The Commission denied unemployment benefits to Joseph concluding she was terminated for misconduct. Id. at 411 (¶ 2). Joseph had been over or under on her drawer balances by one hundred dollars or less on four or five other occasions. Id. at 412 (¶ 8). Her employer’s position was that Joseph was not fired because of repetitive mistakes, but only for the $2,000 shortage. Id.

¶ 13. Joseph was neither accused of stealing the missing money nor investigated for criminal wrongdoing. Id. at 412 (¶ 9). Her employer considered the incident to be an honest mistake. Id. Joseph was not fired for dishonesty, but rather for negligent actions consistent with an alleged bank policy. Id. The policy required automatic termination of a teller following any occurrence of a teller’s balance being off by more than $1,000. Id. The bank policy did not state that this error would be considered misconduct. Id. In reversing the Commission’s decision, the supreme court found that Joseph committed a good faith error that did not rise to the level of misconduct within the meaning of the statute. Id. at 414 (¶ 13).

¶ 14. Next, in Allen v. Mississippi Employment Security Commission, 639 So.2d 904 (Miss.1994), Allen was terminated from his job at Vesuvius USA Corporation for poor job performance. Id. at 905. The Commission found that Allen was terminated for misconduct and denied benefits. The circuit court affirmed the Commission’s decision. Id. The record indicated that Allen operated a machine that ground the surface of a particular part that Vesuvius manufactured. Id. Allen received one verbal reprimand and one written reprimand for grinding parts undersize. Id. at 906. The later mistake cost the company $4,000, and Allen was demoted to a lower level job. Id. Allen was again reprimanded in writing for sending parts to the wrong station when he finished with them. Id. Finally, Allen was verbally reprimanded and terminated for placing parts improperly on a rack, causing them to be scratched. Id.

¶ 15. The supreme court found that Allen’s actions could not, as a matter of law, constitute misconduct because the record lacked evidence of wrongful intent or evil design. Id. at 907. Further, the court determined that the record failed to indicate that Allen’s negligence would evidence a wanton disregard of his employer’s interests in the mind of a reasonable person. Id. At worst, the court found that Allen’s acts of grinding parts undersize were isolated instances of ordinary negligence. Id. The court held that:

failure in good performance as the result of inability or incapacity, or inadverten-cies and ordinary negligence in isolated incidents ... [are] not considered ‘misconduct’ within the meaning of the statute, Allen should not be denied unemployment benefits. Arriola, 408 So.2d at 1383. The determination by the Commission that Allen’s actions were misconduct, so as to deny him benefits, is not supported by substantial evidence, and, thus, is erroneous.

Id. at 908.

¶ 16. Applying Joseph and Allen to this case, we find that Armstrong’s actions may not be classified as misconduct under the statute. Armstrong explains in his brief that he was given the latitude to make his own work schedule. According to Armstrong, he cleaned the park grounds and the bathrooms when he arrived at the job site. Armstrong’s position is that his supervisor visited the park late in the day after many people had used the facilities. There is nothing in the record to dispute his position.

¶ 17. Indeed, as the recreation supervisor, Armstrong had the duty to keep the park clean all day. However, just as the claimants in Joseph and Allen, we find Armstrong’s acts were mistakes or isolated instances of ordinary negligence. The record lacked sufficient evidence to support the conclusion that Armstrong’s actions constituted “carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability” or was a showing of a “substantial disregard of the employer’s interest or of the employee’s duties and obligations to [his] employer.” Wheeler, 408 So.2d at 1383.

¶ 18. Moreover, considering the Commission’s failure to file a brief, we are unable to conclude that the Commission met its burden of showing by “substantial, clear and convincing evidence that [Armstrong’s] conduct warranted disqualification from benefits.” Miss. Emp. Sec. Comm’n. v. Jones, 755 So.2d 1259(¶ 8) (Miss.Ct.App.2000). We will not speculate as to what arguments the Commission would attempt to make if, in fact, it had submitted its argument and authorities to this Court.

¶ 19. Accordingly, we find that Armstrong is eligible to receive unemployment benefits. Therefore the circuit court’s judgment is reversed and rendered. We remand this case to the Commission for a determination of benefits payable to Armstrong.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY IS REVERSED AND RENDERED AND REMANDED TO THE COMMISSION ONLY FOR THE PURPOSE OF DETERMINING THE AMOUNT OF COMPENSATION TO BE AWARDED THE APPELLANT.

McMILLIN, C. J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, MYERS AND CHANDLER, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. LEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

LEE, J.,

Dissenting:

¶ 21. The majority finds that the circuit court erred in affirming the denial of unemployment benefits to Calvin Armstrong. However, I find that the appeals referee, the board of review, and the circuit court properly found Armstrong’s actions to constitute misconduct, thus denying him unemployment benefits.

¶ 22. I must reiterate our well established standard of review in matters such as this. The findings of fact by the board of review is to be considered conclusive “if supported by evidence and in the absence of fraud.” Miss.Code Ann. § 71-5-531 (Rev.2000). Our review is limited to questions of law. Id. The Mississippi Supreme Court explained this standard in Allen v. Mississippi Employment Security Commission, 639 So.2d 904, 906 (Miss.1994):

An agency’s conclusions must remain undisturbed unless the agency’s- order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights. A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the agency.

¶ 23. The majority states that since the appellee failed to file a brief on this matter that Armstrong’s position will be received with more deference. I find that there are two options before us. The first is to take the appellee’s failure to file a brief as a confession of error, and reverse, which should be done when the record is complicated or of large volume and “the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error.” May v. May, 297 So.2d 912, 913 (Miss.1974). The second is to disregard the appellee’s error and affirm, which should be used when the record can be conveniently examined and such examination reveals a “sound and unmistakable basis or ground upon which the judgment may be safely affirmed.” Id. As the record in this case is brief and can be conveniently examined, I find that the circuit court- was correct in affirming the decisions of the appeals referee and the board of review.

¶24. Armstrong’s job responsibilities were to maintain and keep clean the softball fields, the recreational center, and the restrooms. The park director, Sandra Yeager, testified that she, as well as her administrative assistant, had received numerous complaints by citizens indicating that the softball fields and restroom facilities were not cleaned. The softball fields contained holes, the park was littered with trash, the toilets were dirty, and toilet paper was all over the restrooms. Armstrong received instruction on how to clean the facilities and was told to clean the facilities immediately. As Yeager stated during the hearing, Armstrong failed to do so on more than one occasion. Yeager had been several times to talk with Armstrong about his work, but each time she made a follow-up visit the facilities were still dirty. The Friday that Armstrong was given his pre-termination notice, Yeager stated that he said he would clean the restrooms the following Monday. However, it was part of Armstrong’s job to clean the restrooms daily.

¶25. Armstrong’s actions, under the definition of misconduct established in Wheeler, clearly constituted “conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.” Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982). The majority finds that Armstrong’s acts were mistakes or isolated instances of ordinary negligence. However, the record is clear that Armstrong was admonished on more than one occasion to perform his required job duties and failed to do so. I would affirm the circuit court’s ruling.


author: LEE, J., for the Court.

text:
    Andrew David LEDFORD, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-02144-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.
    Rehearing Denied June 1, 2004.

      Dan W. Duggan, Brandon, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   LEE, J., for the Court.

PROCEDURAL HISTORY

¶ 1. On December 9, 2002, a jury in the Circuit Court of Rankin County found Andrew David Ledford guilty of voyeurism. Ledford was sentenced as an habitual offender to the following: to serve five years in the custody of the Mississippi Department of Corrections, said sentence will not be reduced or suspended nor will he be eligible for parole or probation; to pay court cost, fees, and assessments of $250; and to pay a fine of $10,000 within two years of his release. Ledford now appeals to this Court asserting the following issues: (1) the trial court erred in denying his motion for a mistrial during the State’s closing argument; (2) the trial court erred in refusing to grant the lesser-included instruction for trespassing when there was an evidentiary basis to support the instruction; (3) the trial court erred in granting the State’s flight instruction over his objection; and (4) the verdict was contrary to both the weight and the sufficiency of the evidence.

FACTS

¶ 2. On April 14, 2002, Willie Taylor and his girlfriend, Brandy Hart, were looking for their cat outside their apartment at the Woods of Lakeland Apartments. Around 11:00 P.M., they walked around to the rear of a set of apartments and noticed a man, hunched over, looking into the window of an apartment. The man was approximately fifty feet from where Taylor and Hart were standing. The man then started to run and Taylor chased after him. At the same time, a police officer was pulling into the apartment complex and saw Taylor chasing the other man. The officer, Jeff McDaniel, after ascertaining the situation, started to chase the man as well. The man was caught, handcuffed, and identified as Ledford. Taylor and Officer McDaniel both testified that Ledford’s pants were unzipped. Officer McDaniel also noted that Ledford’s underwear was exposed.

¶3. The window Ledford was looking into was a bedroom window belonging to the Blevinses. Mr. Blevins testified that he and his wife were in their bedroom that night but that neither of them was aware that anyone was outside the window until the police arrived. Mr. Blevins did state that, although there was a curtain over the bedroom window, it did not reach to the bottom of the window, instead leaving a gap of around eight to ten inches.

¶ 4. Upon his arrest, Ledford told the officer that he had been dropped off at the apartment complex in order to meet a female friend. A few days after his arrest, Ledford’s car, with the keys in the ignition, was found in the parking lot of the apartment complex.

DISCUSSION OF ISSUES

I. DID THE TRIAL COURT ERR IN DENYING LEDFORD’S MOTION FOR A MISTRIAL?

¶ 5. In his first issue, Ledford claims that the trial court erred in denying his motion for a mistrial during the State’s closing argument. Ledford contends that the statement made by the State prevented him from receiving a fair trial. “Whether to grant a motion for mistrial is within the sound discretion of the - trial court. The standard of review for denial of a motion for mistrial is abuse of discretion.” Caston v. State, 823 So.2d 473(¶ 54) (Miss.2002).

¶ 6. During his closing argument, the prosecutor stated that Ledford’s pants were unzipped while he was looking into the bedroom and that “I can assure you he did not unzip his pants while he was running.” Ledford’s counsel objected on the grounds that “that was never shown in the testimony. The only part where the pants were unzipped was when the officer stopped him.” The trial court sustained the objection and then instructed the jury to disregard the prosecutor’s statements that the pants were unzipped when he was looking into the window. Ledford then moved for a mistrial, which the trial court denied.

¶ 7. When an objection is sustained and the trial court admonishes the jury to disregard the statement, this Court will usually find no error, absent unusual circumstances. Spann v. State, 771 So.2d 883(1113) (Miss.2000). Furthermore, when a court has properly instructed a jury, the presumption is that jurors will follow the court’s instructions. Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988). There is no reason to find that the jury did not do so here. We find that the trial court did not abuse its discretion in denying Led-ford’s motion for a mistrial. This issue is without merit.

II. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A LESSER-INCLUDED INSTRUCTION FOR TRESPASSING?

¶ 8. In his second issue, Ledford claims that the trial court committed reversible error in failing to grant the lesser-included instruction for trespassing because there was an evidentiary basis to support the instruction. Ledford argues that being on the property was enough evidence to warrant a trespass instruction. The Mississippi Supreme Court has held that “[a] lesser-included-offense instruction is proper only if the record supports finding an evidentiary basis for the instruction.” Ormond v. State, 599 So.2d 951, 960 (Miss.1992) (citing Mease v. State, 539 So.2d 1324, 1330 (Miss.1989)). Furthermore, a lesser-included-offense instruction may be given if the more serious offense includes all the elements of the lesser offense, “that is, it is impossible to commit the greater offense without at the same time committing the lesser-included offense.” Sanders v. State, 479 So.2d 1097, 1108 (Miss.1985). In order for Ledford to have been entitled to a lesser-included-offense instruction, he must show evidence in the record from which a jury could, other than by mere surmise, find him not guilty of the crime with which he was charged and at the same time, find him guilty of a lesser-included offense. Toliver v. State, 600 So.2d 186, 192 (Miss.1992).

¶ 9. According to Mississippi Code Annotated Section 97-29-61 (Rev.2000), “any person who enters upon real property whether the original entry is legal or not, and thereafter pries or peeps through a window ... for the lewd, licentious and indecent purpose of spying upon the occupants thereof’ shall be guilty of voyeurism. Mississippi Code Annotated Section 97-17-87 (Supp.2003) defines trespass as being “willful or malicious” and “upon the real or personal property of another.”

¶ 10. Ledford relies upon Warren v. State, 709 So.2d 415 (Miss.1998), to support his argument. In Warren, the supreme court found that a trespass instruction should have been given as there was enough evidence to support the instruction. Id. at (¶ 26). However, in Warren, the defendant testified that he was elsewhere at the time of the crime and the victim’s testimony was confusing and contained several discrepancies. In the case sub judice Ledford did not testify as to why he was on the property. Ledford attempted to introduce his reason as to why he was on the property through the cross-examination of the arresting officer. After being chased and caught by the arresting officer, Ledford told the officer that someone had dropped him off at the apartment complex and that he was meeting a female friend. The arresting officer stated that Ledford refused to make a written voluntary statement and also refused to identify the female friend. The officer further testified on redirect that Ledford’s car, with the keys in the ignition, was found in the parking lot of the apartment complex a few days after his arrest. There is a lack of evidence in the record to show that Ledford was guilty of a trespass. Even if Ledford was legally on the property at the request of his female friend, he was still seen peeping into a window, was chased for at least 250 yards, and was caught with his zipper down and underwear exposed. This issue is without merit.

III. DID THE TRIAL COURT ERR IN GRANTING THE STATE’S FLIGHT INSTRUCTION OVER LED-FORD’S OBJECTION?

¶ 11. In his third issue, Ledford claims that the trial court committed reversible error in granting the flight instruction. A flight instruction is appropriate where “the defendant’s flight (1) is unexplained and (2) where the circumstance of that flight has considerable probative value.” Austin v. State, 784 So.2d 186(¶ 24) (Miss.2001). In his brief, Led-ford claims that he ran because Taylor shouted at him. However, at trial, Taylor testified that Ledford heard Taylor approaching and ran before Taylor even spoke to him. In looking at the record, there is no explanation as to why Ledford ran, nor does Ledford produce any for our review. Furthermore, the circumstances, including the time of night and Taylor’s seeing Ledford peeping into a window, clearly show that Ledford’s flight had considerable probative value. We cannot find that the trial court erred in granting the flight instruction.

IV. DID THE TRIAL COURT ERR IN FAILING TO GRANT LED-FORD’S MOTION FOR A DIRECTED VERDICT AND HIS MOTION FOR A NEW TRIAL?

¶ 12. In his last issue, Ledford claims that the trial court committed reversible error by not granting his motion for a directed verdict or his motion for a new trial. As this issue pertains to both the sufficiency of the evidence and the overwhelming weight of the evidence, we will discuss each separately.

a. Sufficiency of the evidence

¶ 13. Our standard of review concerning sufficiency of the evidence is as follows: the trial judge is required to accept as true all of the evidence favorable to the State, including any reasonable inferences that may be drawn therefrom. Wall v. State, 718 So.2d 1107(¶ 15) (Miss.1998). If, under this standard, sufficient evidence to support the jury’s verdict of guilty exists, the motion for a directed verdict should be denied. Isaac v. State, 645 So.2d 903, 907 (Miss.1994). The court will reverse only when reasonable and fair-minded jurors could only find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987).

¶ 14. Ledford was seen peeping into an apartment window; he ran upon hearing Taylor approach; he ran from a police officer; he was caught with his zipper down; and he claimed to have been dropped off to meet a friend, but he never revealed the friend’s name and his car with the keys in it was found on the property. In taking the evidence in the light most favorable to the State, we find that sufficient evidence existed for reasonable and fair-minded jurors to find Ledford guilty.

b. Overwhelming weight of the evidence

¶ 15. We look to our standard of review in determining whether the jury verdict was against the overwhelming weight of the evidence:

[T]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Baker v. State, 802 So.2d 77(¶ 14) (Miss.2001). It is within the discretion of the jury to accept or reject testimony by a witness, and the jury “may give consideration to all inferences flowing from the testimony.” Mangum v. State, 762 So.2d 337(¶ 12) (Miss.2000) (quoting Grooms v. State, 357 So.2d 292, 295 (Miss.1978)).

¶ 16. Ledford claims that the State did not meet its burden of proof in establishing the elements of voyeurism. The mental element of the crime of voyeurism is the purpose and/or intent of the crime, which “is almost always, absent a confession, proved by inferences from conduct and not by direct evidence.” Price v. State, 749 So.2d 1188(¶ 18) (Miss.Ct.App.1999). In Coleman v. State, 788 So.2d 788 (Miss.Ct.App.2000), the defendant was seen peering into the window of a house and began to run after the police arrived. Coleman did not confess and this Court found that “the lewd, licentious and indecent purpose and/or intent of the crime of voyeurism was inferred by the jury.” Id. at (¶ 7). In the present case, Ledford was seen stooped over, peering into a window, after which he ran and was caught with his zipper down and underwear exposed. The jury’s verdict reflects the State’s version of the events; thus, we cannot find that an unconscionable injustice results.

¶ 17. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF VOYEURISM AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER AND TO PAY A FINE OF $10,000 IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO RANKIN COUNTY.

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


author: IRVING, J., for the Court.

text:
    Earl ANDERSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01586-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.
    Rehearing Denied June 1, 2004.

      Greta Regina Johnson, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   IRVING, J., for the Court.

¶ 1. Earl Anderson was convicted in the Circuit Court of Holmes County of aggravated assault and possession of a firearm by a convicted felon. He was sentenced to consecutive terms of ten and three years, respectively, in the custody of the Mississippi Department of Corrections. Feeling aggrieved by the judgment of the Holmes County Circuit Court, Anderson prosecutes this appeal, arguing that the trial court erred in failing to grant his motion for a directed verdict and in admitting certain documentary evidence of a Florida conviction. He also argues that he was denied a right to a fair and speedy trial.

¶ 2. Ascertaining no reversible error, we affirm Anderson’s conviction and the judgment of the circuit court.

FACTS

¶ 3. During the early hours of February 5, 2000, a shooting occurred at Fly’s Fish House in Holmes County. The victim, Cardell Walker, was shot once in the stomach.

¶ 4. On or about February 7, 2000, Anderson was arrested in connection with the shooting at Fly’s and charged with aggravated assault. He was indicted on June 28, 2000, for aggravated assault and simple assault upon a police officer and was arraigned on both charges on August 30, 2000. On September 25, 2000, Anderson was reindicted and arraigned for aggravated assault and for a new charge of possession of a firearm by a convicted felon. The charge of simple assault upon a police officer was not contained in the new indictment.

¶ 5. Other pertinent facts will be discussed later in this opinion.

1. Denial of Motion for Directed Verdict

¶ 6. Anderson first asserts that the trial court erred when it denied his motion for a directed verdict because the evidence of his guilt of aggravated assault was insufficient.

¶ 7. “The standard of review for a denial of a directed verdict, peremptory instruction and a JNOY are identical.” Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003) (citing Coleman v. State, 697 So.2d 777, 787 (Miss.1997)). A motion for a JNOY, a directed verdict, and a request for a peremptory instruction challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). On the issue of legal sufficiency, reversal can only occur when the evidence of one or more of the elements of the charged offense is such that “reasonable and fair-minded jurors could only find the accused not guilty.” Hawthorne, 835 So.2d at 21(¶ 31) (citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987)). “Since a motion for JNOV, motion for directed verdict, and a request for peremptory instruction all require consideration of the evidence before the court when made, [an appellate court] properly reviews the ruling on the last occasion the challenge was made in the trial court.” Id. (citing McClain, 625 So.2d at 778).

¶ 8. In our present case, Anderson was charged with aggravated assault under Mississippi Code Annotated section 97-3-7(2) (Rev.2000), which reads:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.

¶ 9. Anderson argues that the evidence in the case sub judice was insufficient to demonstrate that he was guilty of aggravated assault. Anderson proclaims that he testified throughout trial that he was not at Fly’s at the time of the shooting of .Cardell Walker. He explains that he was at his mother’s house for several hours on the evening of February 4, 2000, and that around midnight, he decided to go to Fly’s to get something to eat. Anderson states that, upon his arrival at the restaurant, he observed police cars and an ambulance but that he did not know what had transpired at the scene. He explains that he then left Fly’s, went elsewhere to get something to eat, and returned home.

¶ 10. Despite Anderson’s arguments, this Court finds that sufficient evidence existed to support his guilt of aggravated assault. Walker, the victim, testified that he had gone to Fly’s in the early morning hours of February 5, 2000, to order shrimp. He stated that while he was at the restaurant, Anderson approached him and inquired as to the whereabouts of Walker’s brother, Ricky. According to Walker, he informed Anderson that he did not know the location of his brother. Walker further explained that Andersonpersisted in inquiring about his brother but that he began to ignore Anderson. Walker stated that Anderson soon after pulled a gun in an attempt to rob him, whereupon the gun was discharged. He explained that Anderson kept shooting at him stating, “I’m going to kill you.” Walker testified that, in an effort to escape, he began to run toward the restaurant’s door, but before he reached it, Anderson shot him in the stomach. Upon being shot, Walker explained that he grabbed a chair from a table, threw it at Anderson, and darted out of the door. He further testified that Anderson continued to shoot at him after he had escaped from the restaurant. Walker also testified that he had no weapon on him during the incident.

¶ 11. Additionally, several witnesses not only placed Anderson at the scene of the crime but confirmed that he shot Walker. Jimmy Young testified that he was at Fly’s in the early morning hours of February 5, 2000, to order some food and witnessed an argument between Walker and Anderson. He testified that he saw Anderson pull a pistol although he did not see the shooting. However, he saw Walker shortly after Walker was shot.

¶ 12. Willie Davis, an employee at a BP gas station in Lexington, testified that Anderson came by his station the day after the shooting. According to Davis, Anderson asked him whether he had heard about his confrontation with Walker and told Davis that he had shot Walker the night before. Davis also testified that Anderson inquired as to the whereabouts of Ricky, Walker’s brother.

¶ 13. Lenwood Genous, a deputy sheriff with the Holmes County Sheriffs Department, testified that when he telephoned Anderson about turning himself in after a warrant had been issued for Anderson’s arrest, Anderson confessed to shooting Walker at Fly’s.

¶ 14. It is the function of the jury to accept the testimony of some witnesses and not others. Kircher v. State, 753 So.2d 1017, 1029(¶ 56) (Miss.1999). Our supreme court has stated in numerous cases that when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony. Id. Viewing the evidence in the light most favorable to the verdict, as indeed we must, compels this court to conclude that the evidence presented against Anderson was more than ample to convict him of aggravated assault.

2. Evidence of Previous Convictions

¶ 15. Anderson next contends that the trial court erroneously admitted a certified document into evidence to prove that he was a convicted felon without adequately proving that the crimes listed in that document were in fact felonies. He concludes that the circuit court abused its discretion and allowed the jury to only infer that the crimes were felonies.

¶ 16. “[T]he admissibility of evidence rests within the trial court’s discretion. However, this discretion must be exercised within the confines of the Mississippi Rules of Evidence. [An appellate court] will only reverse the ruling of a trial court where such discretion has been abused and a substantial right of a party has been affected.” Murray v. State, 849 So.2d 1281, 1288(¶ 24) (Miss.2003).

¶ 17. In the case sub judice, the State charged Anderson with possession of a firearm by a convicted felon pursuant to Mississippi Code Annotated § 97-37-5 (Rev.2000), which reads:

It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm ... unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the U.S.Code, or has received a certificate of rehabilitation pursuant to subsection (3) of the section.

¶ 18. To satisfy the “convicted felon” portion of this charge, the State introduced a certified copy of Anderson’s Florida criminal conviction report which listed three Florida crimes — carrying a concealed firearm, battery of a law enforcement officer, and depriving an officer of a weapon or radio — of which Anderson was allegedly convicted. On the criminal conviction report, under the heading “Degree of Crime,” the crimes were described as “F3.” Also, the Florida statute for each crime was listed in the criminal conviction report.

¶ 19. Anderson objected that the criminal report faded to clearly indicate that he had been convicted of a felony. In response to Anderson’s objection, the State offered a National Crime Information Computer (NCIC) report which purportedly indicated that the “F3” listings in the criminal report designated felonious crimes. The NCIC report was not admitted into evidence but was marked for identification. The circuit judge took judicial notice of the properly certified criminal conviction report, as well as the NCIC report. In taking judicial notice of the criminal conviction report, the .trial judge did not specifically take notice that the “F3” designation listed under the “Degree of Crime” heading meant that the crimes were third degree felonies under Florida law. Also, the trial judge did not instruct the jury in accordance with the requirement of Rule 201(g) of the Mississippi Rules of Evidence regarding judicially-noticed facts.

¶ 20. A review of the Florida statutes listed in the certified criminal conviction report indicates that the crimes listed on Anderson’s criminal report are in fact third degree felonies. See Fla. Stat. Ann. § 790.01 (2000) (carrying concealed weapons), § 784.07 (2000) (battery of law enforcement officer), § 843.025. (2000) (depriving officer of means of protection or communication).

¶ 21. We find that the criminal conviction report was properly admitted under Rules 803(22) and 902(4) of the Mississippi Rules of Evidence, and since the NCIC report was not admitted into evidence, we decline to discuss it any further. We further find that the failure of the trial judge to instruct the jury in accordance with the requirement of Rule 201(g) is inconsequential because she did not take judicial notice of any specific fact, just the report itself, and, as we have already noted, the report was properly admitted under other applicable rules of evidence. Thus, there was no need to take judicial notice of the report itself.

¶ 22. We now come to the central question, and that is, whether the evidence satisfied the State’s burden to prove that Anderson had previously been convicted of a felony. We conclude that it did. While we agree with Anderson that the jury was required to infer that the “F3” designation listed under the “Degree of Crime” heading meant that the crimes were in fact felonies, we see nothing improper about the jury performing this function. Indeed, a jury is allowed to consider all logical inferences flowing from the evidence. It seems to us that it is a logical inference that the “F3” designation refers to a felony in the third degree. There are only two broad categories of crimes according to the gravity of the offense, felonies and misdemeanors. Some state criminal codes further define felony status crimes in various degrees, such as first, second, etc.

¶ 23. We note that the jury was instructed regarding its right to draw logical inferences from properly-admitted evidence.' The guidance was nestled in a Vcircumstantial evidence instruction which informed the jury that “[cjircumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence.” We, therefore, find that the State met its burden of proving, by properly-admitted evidence, that Anderson previously had been convicted of a felony.

3. Denial of a Speedy Trial

¶ 24. Anderson next asserts that he was denied his constitutional and statutory rights to a speedy trial.

A, Constitutional Right

¶ 25. “The constitutional right to a speedy trial attaches at the time of a formal indictment, information, or arrest.” Birkley v. State, 750 So.2d 1245, 1249(¶ 11) (Miss.1999). Our supreme court utilizes the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) to determine whether a defendant has been denied a speedy trial. Birkley, 750 So.2d at 1249(¶ 11). “The factors to be considered are: (1) length of delay; (2) reason for the delay; (3) whether the defendant has asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay.” Id. In weighing these factors, the totality of the circumstances must be considered. Id. at a 12).

(1) Length of Delay

¶ 26. The analysis of the Barker factors begins with the first factor, length of delay, as it operates as a triggering mechanism. Id. at (¶ 13). The time elapsing from the date of Anderson’s arrest, February 7, 2000, to the beginning day of his trial, May 15, 2002, was twenty-seven months. Any delay of eight months or more is presumptively prejudicial to the defendant. Id. at (¶ 14). The twenty-seven-month delay in this case is presumptively prejudicial and triggers a further analysis of the Barker factors.

(2) Reason for the delay

¶ 27. Once we find the delay presumptively prejudicial, the burden shifts to the prosecution to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of these reasons. However, presumptive prejudice alone is insufficient to allow the defendant to prevail on speedy trial grounds. Continuances granted to the State where the State has demonstrated good cause, are not counted against the State.

Id. at 1250(¶ 15) (citations omitted). In Barker, the United States Supreme Court stated:

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

Barker, 407 U.S. at 531, 92 S.Ct. 2182.

¶ 28. The record reveals no reasons for the delay. Anderson does not offer any reasons for the delay, nor does he assert that the State engaged in a deliberate attempt to delay the trial in order to hamper his defense. The State submits that Anderson’s filing of his motion to dismiss the indictment caused a delay in the trial. However, the veracity of the State’s claim is unsubstantiated because the record exhibits no order from the trial court addressing this motion.

¶29. It should suffice to say that the delay occasioned by reindicting Anderson should be charged against the State. At best for Anderson, however, this delay is caused by mere negligence in preparing the original indictment and should not be weighed heavily against the State. See Id. We find that this factor weighs slightly in favor of Anderson.

(3) Defendant’s Assertion of Right to a Speedy Trial

¶ 30. The next factor we consider is the defendant’s assertion of his right to a speedy trial. “Although it is the State’s duty to insure that the defendant'receives a speedy trial, a defendant has some responsibility to assert this right. Failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Taylor v. State, 672 So.2d 1246, 1261 (Miss.1996). A defendant “has no duty to bring himself to trial.... Still he gains far more points under this prong of the Barker test where he has demanded a speedy trial.” Brengettcy v. State, 794 So.2d 987, 994(¶ 17) (Miss.2001) (quoting Jaco v. State, 574 So.2d 625, 632 (Miss.1990)).

¶ 31. There is no evidence in the record that Anderson demanded a speedy trial from the circuit court. The only filing in the record that hints to Anderson’s assertion of a right to a speedy trial is his motion to dismiss indictment for violation of speedy trial rights, filed on October 19, 2001. However, a demand for a speedy trial is distinct from a demand for dismissal due to violation of the right to a speedy trial. Id. at 994 (citing Perry v. State, 637 So.2d 871, 875 (Miss.1994)).

¶ 32. Moreover, even if this Court were to assume that his motion sufficed as an assertion of his right to a speedy trial, there is no evidence in the record to suggest that Anderson attempted to obtain a ruling on that motion.

This Court has held that a party is obligated to seek a ruling on an objection or motion. A party making a motion must follow up that action by bringing it to the attention of the judge and requesting a hearing upon it. The mov-ant bears the responsibility to obtain a ruling from the court on motions filed by him and failure to do so constitutes a waiver of same.

Craft v. State, 832 So.2d 467, 471(¶ 10) (Miss.2002).

¶ 33. Since Anderson never asserted his right to a speedy trial, we find that this factor weighs against him.

ft) Delay’s Prejudice to the Defendant

¶ 34. The final factor is prejudice against the defendant. When the length of delay is presumptively prejudicial, the burden of persuasion is on the State to show that the delay did not prejudice the defendant. State v. Ferguson, 576 So.2d 1252, 1254 (Miss.1991). Nevertheless, if the defendant fails to show actual prejudice to his defense, this prong of the Barker balancing test cannot weigh heavily in his favor. Polk v. State, 612 So.2d 381, 387 (Miss.1992).

[Prejudice to the defendant may manifest itself in two ways. First, the defendant may suffer because of the restraints to his liberty, whether it be the loss of his physical freedom, loss of a job, loss of friends or family, damage to his reputation, or anxiety. Second, the delay may actually impair the accused’s ability to defend himself.

Stevens v. State, 808 So.2d 908, 917(¶ 24) (Miss.2002) (citing Duplantis v. State, 708 So.2d 1327, 1336 (Miss.1998)).

¶ 35. Anderson first argues that he was in continuous confinement from his arrest until trial. However, Anderson does not set forth any specific prejudice or problems that resulted from his incarceration. Moreover, our supreme court has held that incarceration alone is not sufficient prejudice to warrant reversal. Birkley, 750 So.2d at 1252(¶ 27).

¶ 36. Secondly, Anderson argues that his defense was hampered by the delay, as a number of witnesses at trial indicated that they did not remember all of the events surrounding this case. He explains that the loss of the witnesses’ memories is pertinent because his defense was that he arrived at Fly’s after the alleged shooting had occurred. Apparently, Anderson surmises that the witnesses who testified against him had failing memories because they remembered the facts differently than he. In our perusal of the record, we did not find any witness who testified that he did not remember what had happened or that his memory was fuzzy because of the elapse of time. Therefore, we are unconvinced by Anderson’s argument that his ability to defend himself was impaired. As stated earlier in this opinion, both Walker and Young placed Anderson at Fly’s at the time of the shooting, and Genous testified that Anderson admitted to him that Anderson was at Fly’s on the night of the shooting. They were not equivocal in their testimony.

¶ 37. Anderson presented five witnesses besides himself. His first witness was James L. Jones. Jones testified that he arrived at Fly’s around 11:00 p.m. on the night of February 4, 2000, and stayed there until after the shooting. He identified Anderson as the person who shot Walker.

¶ 38. Anderson’s second witness was his sister, Jean Alice Anderson. Jean testified that somewhere between 10:45 p.m. on the night of February 4 and 12:30 a.m. in the morning of February 5, Anderson came by the house where she and her mother lives. However, she was clear in her testimony that Anderson had left the house by 2:30 a.m. on February 5, 2000. She did not indicate that the passage of time in any way affected her ability to recall the precise time Anderson left.

¶ 39. Leno Homes was Anderson’s next witness. Homes testified that at the time of the shooting he was a state trooper working as a Durant police officer. He was not sure of the time that he arrived on the scene of the shooting but he thought it was after midnight on the night of February 4, 2000. When he arrived at the scene, no one was there except the owner of Fly’s; therefore, he left.

¶ 40. Grant Genous was the next witness to testify for the defense. He testified that he was present at Fly’s on the night of February 4, 2000, and that he arrived there between 12 midnight and 1:00 a.m. the next day. He did not see the shooting, as he stayed at Fly’s for only approximately ten minutes. However, during his short stay, he did see Anderson there. Anderson’s final witness was Johnny L. Johnson, his first cousin, who was a character witness.

¶ 41. We are unable to discern any prejudice to Anderson’s defense based on the testimony of the defense witnesses. Like the witnesses for the prosecution, the defense witnesses were clear in their recollection as to what transpired on that tragic February night. None of the witnesses indicated that their recollections of the events of that night was in any way impacted by the passage of time. Therefore, based upon the analysis of the four factors under Barker, we find that there was no violation of Anderson’s constitutional right to a speedy trial.

B. Statutory Right

¶42. Our speedy trial statute, Mississippi Code Annotated section 99-17-1 (Rev.2000), provides, “Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.”

Under this provision, where the accused is not tried within 270 days of his arraignment, the defendant is entitled to dismissal. However, continuances for “good cause” toll the running of the 270-day period, unless the record is silent regarding the reason for the delay, and then the clock ticks against the State because the State bears the risk of non-persuasion on the good cause issue. A written order stating that a motion for continuance is well taken and should be granted is the equivalence of a judicial determination that good cause exists. Continuances attributable to the defendant stop the running of the clock and are deducted from the total number of days before trial in determining whether the 270-day rule applies.

Reynolds v. State, 784 So.2d 929, 933(¶ 12) (Miss.2001) (citations omitted).

¶ 43. A total of 596 days passed from the time Anderson was initially arraigned on September 25, 2000, to the commencement of trial on May 15, 2002. Therefore, from a temporal standpoint, the State failed by 326 days to comply with its statutory obligation to bring Anderson to trial. As explained earlier, the record shows no evidence of continuances requested by or granted to either party, nor is there anything in the record which might explain the reason for the delay. Consequently, we have a clear violation of the statute requiring that a defendant be brought to trial within 270 days of arraignment.

¶ 44. On October 19, 2001, Anderson filed a motion to dismiss the indictment for violation of his speedy trial rights and a motion to dismiss the indictment due to an alleged conflict of interest of the prosecutor. As the date indicates, these motions were filed well after the expiration of 270 days of the arraignment and were never ruled on. Moreover, there is no indication that Anderson ever sought a ruling on the motions. It is a party’s duty to obtain rulings on motions and to ensure the completeness of the record. Gayten v. State, 595 So.2d 409, 413 (Miss.1992). Further, Anderson has not demonstrated any prejudice from any delay occurring between his arraignment and trial. Consequently, even though a clear violation of section 99-17-1 occurred, we hold, based on the authority of Walton v. State, 678 So.2d 645, 650 (Miss.1996), that Anderson waived his right to complain about the denial of his statutory right to a speedy trial since he did not assert his right to a speedy trial until well after the deadline had passed, and even then, failed to obtain a ruling on the motion. Further, our holding is buttressed by the fact that Anderson has shown no prejudice. Id. at 650.

A Conflict of Interest

¶ 45. In his final issue, Anderson asserts that a conflict of interest existed when James Powell, III, the district attorney for Holmes County, prosecuted this case against him. According to Anderson, Powell was appointed in 1981 to represent him on an offense while Anderson was in the military. Anderson asserts that this prior representation caused him to be denied a fair and impartial trial in the case sub judice.

¶ 46. The following rule is the proper starting point for resolving this issue:

[N]o purpose would be served by applying the proscriptive rule to bar a prosecuting attorney’s participation in a criminal case where the evidence fails to establish that the attorney, by reason of his professional relations with the accused, gained any confidential information regarding the matter involved in the criminal prosecution. Each case must therefore be examined on its facts in order to determine the nature of the attorney’s prior relationship with the accused and the substance of any communications between the attorney and the accused.

Wagner v. State, 624 So.2d 60, 62-63 (Miss.1993) (citing Gray v. State, 469 So.2d 1252, 1255 (Miss.1985)).

¶ 47. We find no merit in Anderson’s argument that a conflict of interest existed because of Powell’s prior representation. This representation occurred approximately twenty years prior to the prosecution on the present charges. Anderson has not demonstrated how Powell’s previous representation of him in the 1981 military proceeding allowed Powell to obtain confidential information concerning the case sub judice. We therefore find no conflict of interest existing in Powell’s prosecution of this matter. This issue lacks merit.

¶ 48. THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT AND SENTENCE OF TEN YEARS AND COUNT II, POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF THREE YEARS, WITH SENTENCES TO RUN CONSECUTIVELY, IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.

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

      . The indictment for these charges is not contained in the record. This information is contained in a motion filed by Anderson to dismiss the indictment on denial of speedy trial grounds.


author: GRIFFIS, J., for the Court.

text:
    Dianna SIMCOX, Appellant, v. Robert D. HUNT, Appellee.
    No. 2003-CA-00227-COA.
    Court of Appeals of Mississippi.
    June 1, 2004.

      Becky Mae Allen Farrell, attorney for appellant.
    Harry M. Yoste, Gulfport, attorney for appellee.
   GRIFFIS, J., for the Court.

¶ 1. Robert and Diane Hunt commenced this action by filing a complaint against Dianna Simcox. The complaint asserted claims to quiet title, to establish a trespass through the construction of the brick structure, for a permanent injunction against future trespass, to establish an easement to allow Simcox access to her property, and for an unspecified amount of damages and attorney’s fees for intentional trespass on their property. Simcox counterclaimed and asserted claims for adverse possession, trespass, slander of title, fraud and monetary damage.

¶ 2. The property in dispute was a fifty-foot strip of land, which was adjacent to Simcox’s western boundary, that was owned by the Hunts. The dispute arose after Simcox built a brick entrance structure that encroached on the disputed property. The Hunts claimed ownership and sought to remove Simcox from possession of the disputed property. Simcox counterclaimed that she was entitled to an easement over the property or, in the alternative, acquired the property through adverse possession. The chancellor granted the Hunt’s claim to quiet title of the disputed property, denied Simcox’s counterclaim for ownership, and granted Sim-cox an easement for ingress and egress over the Hunts’ property. As to the claim of ownership, we affirm. As to the claim of an easement, we reverse, render and remand for the lower court to enter an order with a metes and bounds description granting Simcox an easement over the disputed property.

FACTS

¶3. On September 19, 1986, Simcox purchased a one acre tract of land from Montebella Development Corporation, a corporation solely owned by the Hunts. Simcox’s property consisted of one acre out of a ninety-acre tract originally owned by Montebella. The remaining acreage was subsequently conveyed to the Hunts.

¶ 4. In 1998, Simcox began construction of a brick structure at the entrance to her property. The structure was located on Simcox’s western boundary line. This dispute arose when the Hunts questioned whether the brick structure encroached onto their property, ie., the disputed strip of land.

¶ 5. The documentary evidence submitted at trial included the various warranty deeds that evidenced the conveyances from Montebella to Simcox and the Hunts, correspondence between Montebella, the Hunts and Simcox, several surveys prepared by Edward Jermyn (a registered land surveyor), photographs of the property, and other related documents.

¶ 6. The warranty deeds clearly indicate common ownership of the property by Montabella. The warranty deed conveying the property from Montabella to Simcox did not contain an easement or other means for access to the property. However, by letter dated July 31, 1986, Robert Hunt, as president of Montabella, provided Simcox with a letter that read:

Please let this letter serve as Montebella Development Corporation’s notification of intention to allow Dianna [Simcox] access to her property (description attached) by way of an existing extension road from Gramard Lane (see attached illustration).
This easement and allowance shall be incorporated within her deed upon closing of sale of said property.
She shall have rights to ingress and egress of this easement at all times.

¶ 7. Attached to the letter was a copy of Jermyn’s August 23, 1985 survey of the property. This survey platted and described the one acre parcel that was conveyed to Simcox. The survey also platted a fifty-foot “proposed road,” the east side of which abutted the western boundary of Simcox’s property. The survey included a reference to a twenty-foot wide “existing drive,” which intersected Simcox’s property at the northern end of her western boundary. The only “description” included in the survey was a metes and bounds description of the one acre parcel conveyed to Simcox.

¶ 8. No instrument granting an easement over the “existing drive” or the “proposed road” was ever recorded. The Hunts admitted that they, through Monta-bella, had proposed to build a paved road over the fifty-foot “proposed road.”

¶ 9. At trial, the Hunts introduced another survey prepared by Jermyn. This second survey indicated that Jermyn surveyed the property on December 4, 1998, re-surveyed it on August 29, 2000, and revised the survey on August 14, 2002. The second survey made no reference to the “proposed road” and “existing drive,” which had been included in the 1985 survey. Jermyn’s testimony did not explain the reason for this omission. Instead, the second survey platted a “gravel drive,” which ran from north to south parallel to the Simcox’s western boundary. It also platted a turn from the “gravel drive” that intersected Simcox’s property near the southern end of her western boundary. The Hunt’s also introduced a document, prepared by Jermyn, that provided a metes and bounds description of the “gravel drive.”

¶ 10. The discrepancy between Jer-myn’s two surveys is the genesis of this dispute. The Hunt’s asked the court to disregard the 1985 survey, confirm their ownership by quieting title, and grant Sim-cox only an access easement based on the second survey. Simcox asked the court to rely on the 1985 survey to declare her the owner of the disputed property or, in the alternative, grant her an easement over the “proposed road.”

¶ 11. At trial, the Hunts agreed that Simeox was entitled to an easement for ingress and egress over an existing gravel road that was situated on the Hunts’ property. However, the Hunts argued that Simeox was entitled only to an easement over the existing gravel road, and Simeox argued that she was entitled to ownership or, in the alternative, an easement over the portion of the fifty-foot “proposed road” from the existing gravel road to the western boundary of her property.

¶ 12. Relevant to this appeal, the chancellor’s judgment included the following findings of fact and conclusions of law:

The Court is forced to find that neither of [Simcox’s] theories have been sufficiently proven to show Ms. Simeox has an ownership interest in the disputed property. The [Hunts] do admit to her having a perpetual, non-exclusive easement for ingress and egress which will run with the land. The Hunts have also agreed to allow the Simcoxes a permissive use of the property upon which the brick walls encroach. The Hunts should be equitably and judicially estopped from withdrawing permissive use unless or until the encroachment interferes with the actual development and improvement of the proposed road, if ever. However, the use will remain permissive, and shall not ripen into an ownership interest.
It is therefore, ordered and adjudged that Dianna Simeox has failed to prove her Counterclaim of an ownership interest in the disputed property, and her Counterclaim is therefore denied and dismissed. The claim of the Hunts for quieting their title consistent with their survey and the deed recorded in the land records of Harrison County should be and hereby is granted.
It is therefore, ordered and adjudged that the metes and bounds as deeded to Dianna Simeox and as recorded in the land records of Harrison County shall remain the same but for the addition of the described easement [which was the metes and bounds description of the existing gravel road prepared by Jermyn],

The chancellor’s judgment concluded that Jermyn’s second survey would control this property dispute. The chancellor granted Simeox a ten foot easement for ingress and egress over the existing gravel road. From this judgment, Simeox appeals.

STANDARD OF REVIEW

¶ 13. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Denson v. George, 642 So.2d 909, 913 (Miss.1994).

ANALYSIS

I. Whether the chancellor erred in denying Simcox’s motion for a directed verdict.

¶ 14. When a defendant moves for a directed verdict at the close of plaintiffs case-in-chief, the lower court must consider the evidence in a light most favorable to the plaintiff, giving the plaintiff the benefit of all favorable inferences that reasonably may be drawn from that evidence. Eselin-Bullock & Assocs. Ins. Agency, Inc. v. National Gen. Ins. Co., 604 So.2d 236, 239-40 (Miss.1992).

¶ 15. Simeox argues that at the close of the Hunt’s case-in-chief, all of the evidence indicated that there was a common boundary line between the Hunt property and the Simeox property. Simeox claims that if viewed in the light most favorable to her, this evidence could only lead to one conclusion: Simcox’s western boundary line abuts the Hunt’s eastern boundary line at the edge of the road. As such, Simcox claims she is entitled to a directed verdict.

¶ 16. However, in reviewing the grant or denial of a directed verdict, this Court looks at the evidence in the light most favorable to the non-moving party, giving that party the benefit of all favorable inferences that may reasonably be drawn from the evidence presented at trial. Houston v. York, 755 So.2d 495 (Miss.App.1999). A directed verdict should not be granted unless, on the basis of those facts and inferences, no question of fact remains on which reasonable minds could differ. Id. Here, Simcox was the moving party. As such, her assertion that the evidence should be viewed in the light most favorable to her is incorrect.

¶ 17. In viewing the evidence in the light most favorable to the Hunts, the non-moving party, a question of fact remained upon which reasonable minds could differ. Therefore, the chancellor did not err in denying Simcox’s motion for a directed verdict.

II. Whether the chancellor erred in failing to find that Simcox gained title or an easement to the disputed property through adverse possession.

¶ 18. On this issue, Simcox makes two similar, yet alternative, arguments. Simcox asserts that she should be declared the owner of the disputed property as a result of her purchase or her adverse possession of the property. Alternatively, Simcox argues that she is entitled to a prescriptive easement over the “proposed road,” as described in the 1985 survey.

¶ 19. The elements for the acquisition of ownership by adverse possession and the acquisition of an easement acquired through adverse possession, known as a prescriptive easement, are virtually identical. The elements for adverse possession, which results in ownership, require that the property be: under claim of ownership; actual or hostile; open, notorious, and visible; continuous and uninterrupted for a period of ten years; exclusive; and peaceful. Sharp v. White, 749 So.2d 41 (¶¶ 7-8) (Miss.1999); Stallings v. Bailey, 558 So.2d 858, 860 (Miss.1990); Pieper v. Pontiff, 513 So.2d 591, 594 (Miss.1987); Johnson v. Black, 469 So.2d 88, 90 (Miss.1985). The elements of a prescriptive easement require that the use of the property be: open, notorious and visible; hostile; under a claim of ownership; exclusive; peaceful; and continuous and uninterrupted for ten years. Rawls v. Blakeney, 831 So.2d 1205, 1207(¶ 8) (Miss.Ct.App.2002).

¶ 20. Simcox presented evidence that she, or her family members, maintained the disputed property for the past eleven years. They planted grass, mowed the grass, purchased and spread dirt, and spread gravel on the disputed property. Simcox also claimed that she never received permission from the Hunts to do these things. The Hunts countered with similar evidence of their use of the disputed property.

¶ 21. The chancellor determined that Simcox’s activities amounted to the permissive use of the property. Use of property by permission does not evolve into a hostile or adverse use until the permission ends. The time period for obtaining adverse possession or a prescriptive easement, when express or implied permission is previously given, does not begin to run until some form of objection to the use is made by the landowner. Sharp v. White, 749 So.2d 41, 43 (¶10) (Miss.1999). Here, the Hunts did not object to Simcox’s use of the disputed property until the brick entry structure was constructed. Therefore, the continuous and uninterrupted use of the property did not begin until that time, in 1998.

¶ 22. We find that the chancellor’s findings of fact and conclusions of law on this issue were not clearly erroneous. Therefore, we affirm the chancellor’s finding that denied Simcox’s claims for adverse possession or prescriptive easement on the disputed property.

III. Whether the chancellor erred in denying Simcox’s claim for an easement over the fifty-foot “proposed road” and in limiting her permissive use easement tó the ten-foot gravel road.

¶ 23. On this issue, we combine several of Simcox’s assignments of error.

¶24. The chancellor held that “[t]he [Hunts] do admit to [Simcox] having a perpetual, non-exclusive easement for ingress and egress which will run with the land.” Simcox challenges the quantity of property included in the easement, i.e. the conclusion that the easement be described as the “existing gravel road,” which was ten feet wide, instead of the “proposed road,” which was fifty feet wide.

¶ 25. First, Simcox argues that we must reverse the chancellor “to avoid a serious injustice, logic and ease law suggest where there is inequitable conduct, equitable estoppel applies.” The doctrine of equitable estoppel requires proof of a belief and reliance on some representation, a change of position as a result of the representation, and detriment or prejudice caused by the change of position. Mound Bayou School Dist. v. Cleveland School Dist., 817 So.2d 578, 583 (¶ 15) (Miss.2002). The chancellor found that the doctrine of equitable estoppel required the court to grant Simcox a right to permissive use of the ten foot gravel road.

¶ 26. Simcox claims that she relied on the Hunts’ representations that there would be a fifty-foot wide paved road abutting her front yard at her western boundary line. The representations were documented in the July 31, 1986 letter that included a copy of and referred to the 1985 survey. Simcox argues that she relied on this representation to place her concrete driveway and her utility poles along what she believed was to become the edge of the “proposed road,” which would eventually be a paved road leading to a subdivision. Simcox contends that she purchased her property from Montabella, which was solely owned by the Hunts, and built her home there based on her belief that the proposed road would be constructed.

¶ 27. The Hunt’s argue that such a representation was not made. Instead, the Hunts claim ownership of the property that abuts Simcox’s western boundary. The Hunts admission that Simcox is entitled to a defined ten-foot easement for ingress and egress, which was granted by the chancellor, contradicts their argument.

¶ 28. The chancellor correctly found that Simcox properly established the elements of equitable estoppel. The evidence clearly and convincingly supports her claim. There was no question that Simcox purchased the right of access to her property. The 1985 survey, provided to Sim-cox, established that Simcox had reason to believe that her entire western boundary would border and be available for access to her property.

¶ 29. The evidence simply fails to support the chancellor’s decision to limit Sim-cox’s easement to the “existing gravel drive.” The 1985 survey is undisputed. It makes no reference to the “existing gravel drive” running north and south parallel to Simcox’s western boundary, which was platted in Jermyn’s second survey and relied on by the chancellor in her judgment. Indeed, the only conclusion that may be drawn from the parties’ actions, subsequent to the 1985 survey, was that the gravel road was constructed and used as part of and consistent with the “proposed road,” as indicated in the 1985 survey. The location of the “existing gravel drive” bears absolutely no relationship to the “existing drive” that was indicated on the 1985 survey. Instead, the location of the “existing gravel road” clearly evidences the parties’ intent that Simcox would have access to her property along the “proposed road,” which abutted her western boundary. No other conclusion can be drawn.

¶ 30. Accordingly, we find that the overwhelming evidence supports Simcox’s claim that she bargained for an easement over the entire “proposed road,” when she purchased her property, and she changed her position as a result of the representation. The result was that she suffered detriment or prejudice caused by the Hunt’s change of position. Mound Bayou School Dist., 817 So.2d at 583 (Miss.2002). Accordingly, we find that the chancellor erred in granting Simcox a right of ingress and egress over only the described ten-foot easement. Simcox established and was entitled to rights of access over the entire “proposed road.”

¶ 31. Although the chancellor and this Court agree that Simcox was entitled to relief under the doctrine of equitable estoppel, Simcox also argued that she was entitled to an implied easement over the fifty-foot “proposed road.” We agree. We continue with our analysis of this issue because, while the doctrine of equitable estoppel applies, the doctrine of implied easement is likewise, if not more directly, on point.

¶ 32. “It is well established in our law that an easement may be created by grant, implication, or prescription.” Screws v. Watson, 755 So.2d 1289, 1293(¶7) (Miss.Ct.App.2000) (citing Gulf Park Water Co., Inc. v. First Ocean Springs Dev. Co., 530 So.2d 1325, 1330 (Miss.1988)). “An implied easement must be continuous, apparent, permanent and necessary.” Screws, 755 So.2d at 1293(117). In Leaf River Forest Products, Inc. v. Rowell, 819 So.2d 1281, 1284(¶ 9) (Miss.Ct.App.2002), we held:

Easements arising out of an implication are generally of two types: implied easements essential to the enjoyment of the land and easements by necessity. Bonelli v. Blakemore, 66 Miss. 136, 143, 5 So. 228, 230-31 (1888). See also Cox v. Trustmark Natl. Bank, 733 So.2d 353, 356 (¶¶11) (Miss.Ct.App.1999). As a general rule, “an easement by necessity arises by implied grant when a part of a commonly-owned tract of land is severed in such a way that either portion of the property has been rendered inaccessible except by passing over the other portion or by trespassing the lands of another.” Taylor v. Hays, 551 So.2d 906, 908 (Miss.1989).

¶ 33. The Hunts’ agreement that Sim-cox was entitled to an easement over the “existing gravel drive” is important to our consideration. The chancellor relied on this admission to grant Simcox an easement over the “existing gravel drive.” We review whether the chancellor was correct to limit the easement to ten feet instead of the entire fifty feet of the “proposed road.”

¶ 34. Simcox argues that the chancellor should have granted her a fifty-foot wide easement for ingress and egress across the entire western boundary of her property, i.e. the “proposed road.” Simcox’s argument is based on the principle that a grantor cannot restrict access to landlocked property the grantor conveys. Pitts v. Foster, 743 So.2d 1066 (Miss.Ct.App.1999). In Pitts, this Court held that:

It is well established that an easement by necessity arises by implied grant when a part of a commonly owned tract of land is severed, in such a way that either portion is rendered inaccessible except by passing over the other portion or by trespassing on the lands of another.

¶ 35. Simcox argues that, when she purchased her property from the Hunts, she did not bargain for a limited and defined ten-foot easement for ingress and egress. Rather, she relied on the survey the Hunts provided that clearly indicated that her property would adjoin a fifty-foot wide paved road, giving Simcox unencumbered access across the entire western boundary of her property. The survey presents a twist that has not previously been addressed by Mississippi courts.

¶ 36. We are guided by the following language from an authoritative treatise on this subject:

When an owner of a tract of land subdivides the property in accordance with a map (or plat or plan), a purchaser who purchases a lot within the subdivision also acquires an easement over private streets as laid out on the map....
An easement is implied from the intentions of the parties to the land transactions, as where a purchaser relies on the streets as delineated on the map to enable access from the property to a public road. If this is not shown to be the intention of the parties, an easement will not be implied. A subsequent purchaser is also bound by the implied easement based on the plat of a subdivision. Thus, in a New York case, plaintiff purchased property, which, according to the subdivision map, abutted an undeveloped public thoroughfare. The city never paved the thoroughfare and in 1987 declared the property abandoned for municipal use. The purchaser of the property erected a fence which blocked plaintiffs use of the undeveloped thoroughfare. The court granted an easement by implication based on the subdivision map.

Backman & Thomas, A Practical Guide to Disputes between Adjoining Landowners — Easements, § 2.02[3][c] (Matthew Bender 2002) (citing Firsty v. De Thomasis, 177 A.D.2d 839, 576 N.Y.S.2d 454 (3d Dept.1991)).

¶ 37. The 1985 survey created an implied easement. Montabella, who acted through the Hunts, subdivided its property in accordance with a plat that indicated the owner (Simcox) would have access to and use of a “proposed road.” Therefore, Sim-cox purchased and acquired an easement over the “proposed road” as laid out on the plat. The easement is implied from the intentions of the parties to the land transactions, which included Montabella, the Hunts and Simcox, to enable access from the property to a public road. The Hunts, both as a. party to the transaction and as a subsequent purchaser, are bound by the implied easement based on the plat.

¶ 38. We find that the chancellor was clearly erroneous in only granting Simcox a limited and defined ten-foot easement for ingress and egress, rather than granting her an easement that would allow her property to be unencumbered along its western boundary line as originally intended by the two parties. Accordingly, we reverse and render granting Simcox an easement over the “proposed road,” as indicated on the 1985 survey. We remand to the chancellor for a determination of a metes and bounds description of the easement over the “proposed road.”

IV. Whether the chancellor erred in failing to find that Robert Hunt committed trespass to land.

¶ 39. A trespasser is one who enters upon another’s property “without license, invitation, or other right, and in-trades for some definite purpose of his own, or at his convenience, or merely as an idler with no apparent purpose, other than, perhaps, to satisfy his curiosity.” Saucier v. Biloxi Reg’l. Med. Ctr., 708 So.2d 1351, 1357 (Miss.1998).

¶ 40. While Simcox may be entitled to an easement across the disputed property, the easement grants Simcox the right to use the disputed property. The ownership of the property remains with the Hunts. To be a trespasser, one must enter upon the property of another. Kelley v. Sportsmen’s Speedway, 224 Miss. 632, 644, 80 So.2d 785, 791 (Miss.1955). Because the property in question was owned by the Hunts, Simcox does not have a claim for trespass. Therefore, the chancellor did not err in denying the requested relief.

CONCLUSION

¶ 41. Simcox purchased property from the Hunts with the understanding that a fifty-foot wide road would be constructed giving her unencumbered access across the entire western boundary line of her property. When the Hunts failed to live up to their promise, Simcox was left with property that was encumbered across its entire boundary with the exception of a defined easement for ingress and egress. Finding that the parties originally intended Simcox to have unrestricted access across the entire western boundary line of her property, this court reverses the chancellor’s grant of a defined ten-foot easement for ingress and egress. This matter is remanded to the Chancery Court of Harrison County for the entry of an order that includes a complete and correct metes and bounds description of the easement, in accordance with this opinion.

¶ 42. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS AFFIRMED IN PART; REVERSED, RENDERED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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