author: SOUTHWICK, P.J.,

text:
    Peggy C. HINDS, E.R. Friar, Jr., Willene D. Friar and Jerry L. Pelham, Appellants, v. CITY OF OCEAN SPRINGS, Mississippi, Appellee.
    No. 2003-CA-00054-COA.
    Court of Appeals of Mississippi.
    April 6, 2004.
    Rehearing Denied June 29, 2004.
    Certiorari Denied Oct. 7, 2004.

      Randall Scott Wells, Biloxi, attorney for appellant.
    Earl L. Denham, Ocean Springs, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. The Mayor and Board of Aldermen of the City of Ocean Springs granted a request to divide an acre lot into two lots. Several neighbors appeal and allege that insufficient notice was given of the matter, and that the decision was arbitrary and capricious. We find no error and affirm.

¶ 2. Shannon Moran owns a lot in Ocean Springs. There is no evidence in this record of its being part of an existing subdivision for which a survey plat had been duly recorded. The dimensions of the lot prior to the split was approximately 210 feet in width and 233 feet in depth. The split that was approved divided the lot into two relatively equal parts, the larger having 110 feet of frontage.

¶ 3. Appellants are Peggy Hinds, E.R. Friar, Jr., Willene D. Friar and Jerry L. Pelham, who live near the Moran property. They allege that the smaller lots are inconsistent with the current character of the neighborhood.

¶ 4. Moran first requested a variance for her lot, but no subdividing of it, in February 1999. The zoning and adjustment board of the City of Ocean Springs heard her request for a lot width and side yard variance. This board recommended approval. The Mayor and Board of Aider-men reviewed and approved the recommendation.

¶ 5. Soon thereafter, Moran applied for a lot split with the City Planning Commission. That body approved the request, but the Board of Aldermen denied it because the proposed frontage was about 90 feet while the zoning regulations typically required a minimum of 100 feet.

¶ 6. In December 1999, Moran again applied to subdivide her lot. She had revised her plans so that the frontage would be 100 feet. The City Planning Commission heard her proposal which included that a new home would be constructed 34 feet back from the street. After the Commission allowed audience comment, it decided to recommend approval for the lot split. Moran then presented her request to the Mayor and Board of Aldermen. The Board of Aldermen eventually denied this request. Moran unsuccessfully appealed to circuit court.

¶ 7. Moran repeated this process in February 2000, this time with plans for the home to be set back 53 feet with a frontage of 100 feet. That too was denied. In April 2001, Moran again presented a plan to the Board of Aldermen. This proposal included a set back of 64 feet with 100 feet of frontage. The Board voted to grant the split. Some of her neighbors filed a bill of exceptions and appealed to circuit court. The decision was affirmed. Now the neighbors appeal to us.

DISCUSSION

1. Notice

¶ 8. The objectors argue that there was insufficient notice given for the April 2001 Board of Aldermen hearing at which the lot split was approved. The record indicates that the matter of the Moran lot split had been considered at several meetings. On Friday, April 6, 2001, notice was published “at the City Hall” that there would be a meeting on Monday, April 9, regarding the lot split. A transcript appears of the meeting on April 9, at which Moran and opponents of her plan spoke to the Board. The Board approved the plan at that meeting.

¶ 9. The objectors refer to a statute which requires fifteen days notice by publication for certain kinds of hearings. Miss. Code Ann. § 17-1-15 (Rev.2003). The statute applies to action on zoning ordinances, subdivision regulations, capital improvement program, or a comprehensive plan for development. No such category of action occurred here. The objectors also allege a general due process right to greater notice than was given.

¶ 10. The starting point for considering the argument about the notice is to determine what statutory or other authority of the City was invoked when this lot split was considered. Upon defining the action, we can better determine what notice was due by statute or ordinance.

¶ 11. Mrs. Moran was asking municipal officials to approve dividing her lot into two, and thereby permitting two residences to be on the property. There is no evidence that the lot was part of a dedicated subdivision, in which a survey of each lot and needed streets appeared on a plat filed with the proper county office for re-cordation. There is a statute controlling the creation of subdivisions of that sort, which also provides for the means by which an alteration or a complete vacating of that plat may be accomplished. Miss. Code Ann. § 17-1-23 (Rev.2003). In some of the completed forms that appear in the record, the blanks for indicating the name of the subdivision in which the land is located and for relevant information about the subdivision plat are filled in with “N/ A,” for “not applicable.”

¶ 12. Instead of reference to a platted subdivision, the Moran lot description in the filings on her request and in the deeds that appear of record used a courses and distances description with a point of beginning at the intersection of two streets. There is no discovered statute controlling what a landowner does in such a situation, unless the statute on “subdivisions” just discussed is stretched to apply to a split of one long-existing, unplatted tract into two parts. We do not find that to be a fair interpretation of the reach of the statute. Instead, what Mrs. Moran wished to do was invoke the general land use powers of the municipality. See Miss.Code Ann. § 17-1-3 (Rev.2003) (general land use powers of local governments); Miss.Code Ann.- § 17-1-7 (power to adopt zoning regulations).

¶ 13. Under that general authority, the City of Ocean Springs adopted this rule:

Upon request of the property owner, a previously established or platted lot may be divided into only two parcels of land ... when, in the opinion of the mayor [and] board of aldermen, such a lot split is in keeping with the intent of these rules and regulations, and when approval of the lot split will provide for a development, the character of which will be conformable with the existing platting and development, in the general neighborhood of the proposed lot split.

Ocean Springs, Miss., ORdinances art. II, § 8.1 (Rev.1985). Therefore, before any-existing lot could be split into two — even one that after the split would comply with applicable zoning rules — the City had to be presented the proposal for its review and approval. No specific procedure, and most relevantly, no reference to the form or timing of notice appears in the ordinances that have been presented to us. On this record, then, we are left with determining whether the City afforded the process that was due under more general principles.

¶ 14. There is no generic “due process.” Procedural fairness depends on context. If there is a deprivation of life, liberty or property, then the relevant process will depend on the time, place and circumstances of the interest and the deprivation. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (three-part test established). As to the adequacy of notice, the Supreme Court has seemingly held that even after Eldridge, an older rule applies. Whenever a person’s life, liberty or property interests may be affected by legal proceedings, the notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Dusenbery v. United States, 534 U.S. 161, 169, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 319, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

¶ 15. The most serious problem for the objectors is that they have not identified a constitutionally protected interest. They cite a California case that a zoning decision which would lead to an increase in traffic and pollution would “substantially affect” property interests and invoked constitutional due process requirements. Horn v. County of Ventura, 24 Cal.3d 605, 156 Cal.Rptr. 718, 596 P.2d 1134, 1138-39 (1979). Under that standard, the objectors here would have to show that transforming the single Moran lot into two lots, would substantially affect their property interests. We find no such evidence.

¶ 16. Generally, land use adjudications about one parcel do not affect the neighbors’ constitution-based property or liberty interests. “Their complaint is that the City’s operation of the shelter in the vicinity of their property will cause a decline in property values. Governmental action of that sort has never been held to ‘deprive’ a person of property within the meaning of the Fourteenth Amendment.” BAM Historic Dist. Ass’n v. Koch, 723 F.2d 233, 237 (2d Cir.1983). Absent proof of a significant impact on the values of the objectors’ property, no property interest exists for which some process is due as a matter of constitutional right.

¶ 17. It is of no small moment here, at least as to equities, that substantial participation by objectors occurred at the April 9, 2001 hearing. The notice may have been given only three days earlier, but many of those opposed to the lot split participated in the hearing with counsel. The neighbors and citizens of Ocean Springs had long known that Moran was seeking to split the lot. Her first request to do so was in 1999. Notice was given on April 6, 2001 that the matter would be considered on April 9. No statutory notice requirement was violated, as none was applicable. Constitutional process was not due, as no property deprivation existed. There was no defect in notice.

2. Substance of decision

¶ 18. Even if all the notice needed was given, the objectors claim that the decision to split the lot was improper. We note that the property was zoned “R-l,” which under local ordinances required a 100 foot-wide lot. The approved split created lots that met that requirement. A petition had been earlier signed by many of the residents of her street requesting that the City maintain the 100 foot minimum frontage for the neighborhood. In October 1999, the Planning Commission recommended the approval of Moran’s request because “compliance with the requirements of the Subdivision Regulations insofar as the square footage would exceed the requirement by approximately 50% and the full Zoning and Adjustment Board’s prior approval of a lot width and side yard variance.” There was also evidence that lots on the opposite side of the affected street were about the size of Moran’s newly split lots.

¶ 19. We acknowledge that the split lots were not rectangular, and there is an objection based on the fact that one lot bulged into the other. Yet we find nothing objectively in error about the decision. The City argues that its decision was “legislative” in nature. If so, then its order “may not be set aside if its validity is fairly debatable, and such order may not be set aside by a reviewing court unless it is clearly shown to be arbitrary, capricious, discriminatory or is illegal or without substantial evidential basis.” Barnes v. Bd. of Supervisors, DeSoto County, 553 So.2d 508, 510 (Miss.1989).

¶ 20. However, even though the adoption of “zoning ordinances are legislative acts, conditional use permits are adjudicative in nature. An individual seeking a conditional use permit bears the burden of proving by a preponderance of the evidence that he has met the elements necessary to obtain a permit.” City of Olive Branch Bd. of Aldermen v. Bunker, 733 So.2d 842, 844 (Miss.Ct.App.1998), citing Barnes, 553 So.2d at 510-11. We find this decision as to one particular lot, which then became two lots, to be adjudicative and not legislative.

¶ 21. On that basis, we review whether there was substantial evidence to support the decision. The evidence indicated large lots on one side of the street, somewhat smaller lots on the other, with the split lot having a significant set-back requirement to reduce the aesthetic effect on the neighborhood. This was a discretionary decision. There was adequate evidence to support it. We affirm.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANTS.

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

      . A useful description of these categories of action appears in Mary E. Miller, Zoning & Land Use, §§ 6-9, in Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law (2003, New Topic Service).


source: Caselaw Access Project

author: KING, P.J.,

license: Public Domain

text:
    Clifton CAMPBELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01448-COA.
    Court of Appeals of Mississippi.
    April 27, 2004.
    Rehearing Denied July 20, 2004.
    Certiorari Denied Sept. 30, 2004.

      Thomas Richard Mayfield, Thomas E. Royals, Jackson, attorneys for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, P.J., THOMAS and MYERS, JJ.
   KING, P.J.,

for the Court.

¶ 1. Clifton Campbell and Josh Kirk Davis were indicted for the capital murder of William Arnold. The underlying felony charge was burglary of an inhabited dwelling. The charges were severed and Campbell and Davis were tried separately. A jury in the Circuit Court of Yazoo County found Campbell guilty as charged and the court sentenced him to life imprisonment without the possibility of parole. Campbell has appealed that verdict and sentence.

FACTS

¶ 2. On or about July 29, 2000, a group of individuals consisting of three adult males, and several teenagers spent the better part of the day at the home of Mike Campbell cutting grass, cooking out and consuming alcohol and other intoxicating substances. The adults present were the appellant, Clifton Campbell and his brother, Mike Campbell and Mike Campbell’s friend, William Arnold. The teenagers were Clifton Campbell’s daughter, Nicole (Nikki) Campbell, Mike Campbell’s daughter, Michelle Campbell, her boyfriend, Josh Davis, Megan Smith, and Blake McNeer.

¶ 3. At approximately 10:00 p.m., the teenagers and Arnold decided to go to what was known as the “cabin” and sometimes described as a “deer camp.” Their stated purpose in going was to fish. Knowing that it would be late by the time the fishing ended, the group also made plans to spend the night. The other two adults went to a bar to drink alcohol.

¶ 4. After arriving at the cabin the two boys and Arnold fished, and Nikki Campbell sat on the tailgate of a truck while Michelle Campbell and Megan Smith went swimming. At some point during the evening, an inebriated Arnold made unwanted sexual advances towards Nikki Campbell which took the form of kissing and intimate touching. Nikki was repelled by the advances. Visibly shaken, she reported what happened to her teenaged companions and stated her desire to leave the premises immediately. Josh Davis became very angry and confronted Arnold about the allegations. Arnold responded by producing a shotgun. The teenagers went back to Mike Campbell’s house. It was approximately 3:00 a.m. Forty-five minutes or so later, Mike and Clifton Campbell returned to the residence.

¶ 5. When the adults were informed of Arnold’s actions, Mike Campbell’s response was that Arnold had been drinking all day and was no doubt drunk, he and Clifton had been drinking during the preceding several hours and were very nearly drunk, so the best thing was for everyone to get some sleep and try to work things out later in the morning. Mike Campbell then went to bed. Josh Davis, angry over having been threatened with a gun, continued to urge Clifton Campbell to extract vengeance against Arnold.

¶ 6. Very shortly thereafter, Clifton Campbell and Davis departed for Clifton Campbell’s residence where they retrieved Clifton Campbell’s shotgun and went to the cabin. When the two arrived at the cabin, Clifton Campbell did not drive into the driveway of the cabin but parked his car some distance away in an overgrown field. They walked to the cabin and stood on the porch where they looked through the broken windows of the front door and saw Arnold asleep on a sofa. Though the window panes were broken out of the door’s window, a Venetian blind covered the window on the inside of the door.

¶ 7. What happened next was a matter of dispute as between the trial testimony of Clifton Campbell and the trial transcript testimony from Josh Davis’s trial and statements made by Josh Davis to the authorities. Clifton Campbell claimed that he had a change of heart when he saw Arnold lying asleep on the sofa and decided to go home and call the authorities. He said that after he turned and walked off the porch, Davis came after him, grabbed the gun from his hand, went back upon the porch, stuck the gun through the window and fired three shots at Arnold. He claims that he tried to persuade Davis not to shoot Arnold and to leave the matter to the authorities.

¶ 8. In the meantime, Megan Smith and Michelle Campbell had driven to the cabin. They each testified at trial that they saw Clifton Campbell’s car parked in the field and Clifton Campbell running from the cabin with the shotgun in his hand and Davis following closely behind him. They said they left the scene without ever stopping the car. All four ended up back at Mike Campbell’s house. Michelle testified that she asked Davis and Clifton Campbell what they had done, to which Davis replied that he had “shot that m_ f_r three times.” Clifton Campbell was said to have replied, “I thought that is what you wanted.” Clifton Campbell then went home. Michelle Campbell and Megan Smith went back to the cabin with Davis. Once there, they went into the cabin and examined Arnold’s body to make certain that he was truly dead.

ISSUES
I. THE STATE DID NOT PROVE THAT THE DECEASED WAS KILLED WHILE THE DEFENDANT WAS ENGAGED IN THE BURGLARY OF A “DWELLING HOUSE” AS CHARGED IN THE INDICTMENT.
II. THE STATE’S USE OF DEFENDANT’S POST-ARREST SILENCE FOR IMPEACHMENT PURPOSES VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
III. THE INTRODUCTION BY DEFENDANT’S TRIAL COUNSEL OF STATEMENTS GIVEN BY DEFENDANT’S NON-TESTIFYING CO-DEFENDANT VIOLATED DEFENDANT’S RIGHTS UNDER THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT AND IS PLAIN ERROR.
ANALYSIS
I. DID THE STATE PROVE THAT THE DECEASED WAS KILLED WHILE CAMPBELL WAS ENGAGED IN THE BURGLARY OF A “DWELLING HOUSE” AS CHARGED IN THE INDICTMENT?

¶ 9. This issue was not presented to the trial court. Campbell argues that this Court should review it as plain error. Campbell contends that after having secured an indictment charging him with murder while engaged in the burglary of a dwelling, the State had the burden of proving as an essential element of that charge that the subject structure was a dwelling within the meaning of the burglary statute. Campbell cites this Court’s opinion in Carr v. State, 770 So.2d 1025, 1029 (Miss.Ct.App.2000), wherein the Court held that “proof that the structure was, at the time of the alleged crime, a dwelling house, was an essential element of the crime as to which the State had the burden of proof beyond a reasonable doubt.” In regard to Carr’s failure to raise this issue in the trial court, this Court, in reversing Carr’s conviction, went on to hold that, “this failing of the State’s proof is so fundamental that we conclude it would be a substantial miscarriage of justice to permit a burglary conviction to stand on this proof, and we, therefore, note it as plain error.” Id.

¶ 10. The distinction between the case at bar and Carr is that burglary of an occupied dwelling was the only charge against Carr. Therefore, this Court was on sound ground in holding that the State’s failure to prove that the structure was, at the time of the alleged crime, a dwelling house, was an essential element of the crime which the State had the burden of proving beyond a reasonable doubt and, without which, permitting the burglary conviction to stand would constitute a substantial miscarriage of justice and was thus plain error.

¶ 11. In the case at bar, the burglary charge was the underlying felony to capital murder and even though the State did not present evidence of who specifically owned the dwelling, there was plenty of evidence that the structure was indeed a dwelling. It was furnished, it had running water and electricity and it was known to be suitable for human habitation as evidenced by the fact that the members of the party who accompanied the deceased to the structure had intentions themselves of spending the night in the structure.

¶ 12. This Court finds, in the first instance, that this issue, having not been first presented to the trial court for resolution, is procedurally barred. The issue is also without merit.

II. DID THE STATE USE CAMPBELL’S POST-ARREST SILENCE FOR IMPEACHMENT PURPOSES IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT?

¶ 13. In making this charge of error, Campbell once again asks this Court to invoke the doctrine of plain error as he seeks to advance an argument that was not presented to the trial court. His claim is that his decision to invoke his privilege against self-incrimination after his arrest was improperly used against him at trial, in that, he was allegedly impeached by the fact of his decision to remain silent. He cites Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), in alleging that as an accused who was under arrest and having been given the warning provided for in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and advised of his right to remain silent and who did remain silent, the prosecution was “flatly prohibited from using his choice of remaining silent as a weapon against him at trial, either for impeaching him or for cross-examination.”

¶ 14. The matter at issue came about as a result of Campbell’s trial testimony that he was an innocent bystander to the murder. Campbell testified on direct examination that once he and Davis arrived at the cabin he had a change of heart about confronting Arnold himself and decided to go to law enforcement authorities. He claimed to have been thwarted in this effort by Davis’s actions in taking the shotgun from him and shooting Arnold. He also claimed that Davis threatened to kill him if he went to the authorities. On cross-examination, Campbell was asked a series of questions which sought to establish that in spite of his claim of being an innocent bystander, he never went to the authorities to offer his version of events.

¶ 15. The State contends that its questions were asked to show that despite having several hours in which to have reported the murder, Campbell failed to do so, thereby rendering incredible his claim of being an innocent bystander. The State asserts that its questions covered the period between the commission of the murder and the discovery of the body, and explored why Campbell failed to report the murder if he were not involved in its commission. Additionally, the State argues that since nothing was asked about any post-Miranda silence, Doyle did not apply. Finally, the State contends that if there was error, it should be considered harmless in light of the overwhelming evidence of Campbell’s guilt and the clear indication that any violation of Doyle was unintended.

¶ 16. This Court finds that the record supports the State’s argument that the questioning was proper cross-examination that did not ask about Campbell’s post -Miranda silence. This issue is procedurally barred and without merit.

III. DID THE INTRODUCTION OF STATEMENTS BY CAMPBELL’S CO-INDICTEE, DAVIS, VIOLATE CAMPBELL’S RIGHTS UNDER THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT AS PLAIN ERROR?

¶ 17. Campbell contends that his Sixth Amendment right to confront witnesses was violated when his trial attorney introduced certain statements made by Campbell’s co-indictee, Davis, into evidence. Campbell does not allege ineffective assistance of counsel, however, but rather, that his counsel acted in contravention of the holding in Bruton v. United States, 391 U.S. 128, 136, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), that “the admission of a co-defendant’s extrajudicial statement that inculpates the other defendant violates the other’s Sixth Amendment right to confront witnesses against him and that the unreliability of such evidence is ‘intolerably compounded’ when the accomplice who gave the statement is not tested by cross-examination.” Since it was his counsel that introduced the statements, Campbell also hastens to add that this was an error that was “so fundamental that it generates a miscarriage of justice that rises to the level of plain error.”

¶ 18. The State cites Waldon v. State, 749 So.2d 262, 266 (Miss.Ct.App.1999), for the proposition that the right of confrontation may be waived by an accused or his attorney. The State also argues that since Davis did the actual shooting and was the only other witness to the shooting besides Campbell, the fact that he gave conflicting statements, in one of which he admitted lying about Campbell’s involvement in the crime, the obvious purpose in admitting the statements was to call into question whether anything Davis said about Campbell’s participation could be believed. Since there was a legitimate trial tactic or purpose involved in putting the statements into evidence, there is no ground to find that the waiver of the right of confrontation was invalid. This Court agrees. This issue is procedurally barred and is without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: LEE, J.,

text:
    Christopher L’Amont LITTLE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-00885-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.
    Rehearing Denied July 27, 2004.
    Certiorari Denied Sept. 30, 2004.

      William B. Jacob, Joseph A. Kieronski, Daniel P. Self, Meridian, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On March 19, 2003, a jury in the Circuit Court of Noxubee County convicted Christopher L’Amont Little of murder and aggravated assault. Little was sentenced to a term of life in prison for the murder charge and ten years for the aggravated assault, to run consecutively with the life sentence, all to be served in the custody of the Mississippi Department of Corrections. Little subsequently filed a motion for a new trial as well as a motion for a judgment notwithstanding the verdict, both of which were denied by the trial court on April 8, 2003. Little now appeals to this Court asserting that the trial court erred in granting the State’s jury instruction S-2 and that the trial court erred in providing a strategy to the State, thereby exhibiting judicial bias.

FACTS

¶ 2. On March 27, 2000, Little and Michael Brandon, his first cousin, went to the West Side Café, also known as the Q-5 Club, in Macon, Mississippi. They arrived in Little’s car at approximately 10:00 p.m., remaining in the parking lot for a while before entering the club. While in the club, a fight broke out and the patrons exited the club, including Little, who was injured during the fight, and Brandon. While in the parking lot, people began shouting that someone had a gun. Little then pulled his pistol from his trousers and began firing into the car where the victims were. Eric Donta Jamison was killed and Dennis Mitchell was wounded.

DISCUSSION OF ISSUES

I. DID THE TRIAL COURT ERR IN GRANTING JURY INSTRUCTION S-2?

¶ 3. In his first issue, Little claims that the trial court erred in granting jury instruction S-2. Specifically, Little contends that in granting the jury instruction, the State was allowed to improperly amend the indictment. In reviewing a challenge to jury instructions, the instructions actually given must be read as a whole. Williams v. State, 803 So.2d 1159(¶ 7) (Miss.2001). When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Id.

¶ 4. Count I of the indictment stated, in pertinent part, as follows:

Christopher L’Amont Little late of the County aforesaid, did on or about the 28th day of October, 2000, in the County aforesaid, unlawfully, wilfully, and felo-niously, with the deliberate design to effect death, kill and murder a human being, Donta Jamison, without authority of law and not in necessary self defense, in violation of MCA § 97-13-9-

¶ 5. At the conclusion of the trial, the State submitted the following instruction which the Court granted over Little's objection.

The Court instructs the Jury that Murder is the killing of a human being, not in necessary self-defense, and without authority of law, by any means or by any manner, when done with the deliberate design to effect the death of the person killed or when done in the commission of an act eminently dangerous to others evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.
Therefore, the Court instructs the Jury that if you believe from the evidence in this case beyond a reasonable doubt that the Defendant, Christopher L’Amont Little, on or about October 28, 2000, did unlawfully, willfully, and felo-niously kill and murder Donta Jamison without authority of law and not in necessary self-defense, AND
(1) with the deliberate design to effect the death of Donta Jamison, OR
(2) while engaged in the commission of an act eminently dangerous to others and evincing a depraved heart, disregarding the value of human life, whether or not he had any intention of actually killing Donta Jamison, by shooting Don-ta Jamison and causing Donta Jamison to bleed to death,
then Christopher L’Amont Little is guilty of Murder, and it is your sworn duty to so find.

¶ 6. Mississippi Code Annotated Section 97-3-19 (Rev.2000) states, in pertinent part, that murder is “[t]he killing of a human being without the authority of law by any means or in any manner shall be murder ... (a) when done with deliberate design to effect the death of the person killed, ... (b) when done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life ... without any premeditated design.... ” In Schuck v. State, 865 So.2d 1111(¶ 19) (Miss.2003), the supreme court reiterated earlier holdings in concluding that every murder committed with deliberate design is by definition done in the commission of an act imminently dangerous to others, evincing a depraved heart; thus the two types of murder integrate so that section 97 — 3—19(l)(b) subsumes section (l)(a). See also Brown v. State, 781 So.2d 925(¶ 13) (Miss.Ct.App.2001); Sanders v. State, 781 So.2d 114(¶ 13) (Miss.2001); Catchings v. State, 684 So.2d 591, 598-99 (Miss.1996); Mallett v. State, 606 So.2d 1092, 1095 (Miss.1992). Therefore, the depraved heart murder instruction did not constructively amend the indictment. We find this issue to be without merit.

II. DID THE TRIAL COURT ERR IN PROVIDING A STRATEGY TO THE STATE, THEREBY EXHIBITING JUDICIAL BIAS?

¶7. In his remaining issue, Little claims that during the questioning of one of the State’s witnesses, the trial judge stopped the State’s questioning and improperly gave the State a new strategy. Little contends that this action by the trial judge deprived him of his chosen defense. In his brief, Little cites to the record where the State attempted to question a police officer about another suspect in the case who died a year before the trial. After the State tried to get the police officer to testify as to the deceased man’s statements concerning the incident, the judge, once the jury was excused, stated:

I’ve had about enough. Can you tell me why you think that’s admissible? Tell me why you think the statement of somebody that is now dead and is not a witness and who has not given testimony under oath previously is admissible. There was no objection by the defense counsel. I’m sure they’re not even going to object probably because they’re going to want to try to get in some evidence of what he said to some other people too.

Little’s counsel then objected stating that “[w]e haven’t gotten any of this in discovery is the first objection we’re going to make. After we see what he says, I mean, you know — .” To which the judge responded:

—After you see what he says, then you’re going to try to introduce the witness y’all tried to tell me about earlier that was in the courtroom and I’m going to have to let them probably because you’re doing that. Do you understand what I’m trying to tell you?

The State then responded: “Yes, sir. At this point we would withdraw that question.”

¶ 8. “It is the supreme duty of a trial judge, in so far as it is humanly possible, to hold the scales of justice evenly balanced between the litigants.” West v. State, 519 So.2d 418, 422 (Miss.1988). In Murphy v. State, 453 So.2d 1290 (Miss.1984), the prosecution did not object to hearsay statements elicited by the defendant while cross-examining a State’s witness. On redirect, the prosecution then elicited further hearsay testimony from its witness. During the redirect, the defense objected but the trial court overruled the objection saying that the defense had “opened the door.” However, the supreme court found this action by the trial court constituted reversible error and reversed and remanded for a new trial, stating that “[t]he State cannot sit silent while the defense elicits hearsay and then seek to solicit hearsay in response.... [Y]ou simply cannot ‘open the door’ to hearsay.” Id. at 1294.

¶ 9. We cannot find that there was any error committed by the trial judge in deciding to prohibit the parties from introducing hearsay into evidence. We also cannot find that the judge showed any bias toward the prosecution in so ruling.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF NOXUBEE COUNTY OF CONVICTION OF COUNT I, MURDER AND SENTENCE OF LIFE; COUNT II, AGGRAVATED ASSAULT AND SENTENCE OF TEN YEARS TO RUN CONSECUTIVELY TO SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: SOUTHWICK, P. J.,

text:
    MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellant, v. Victor J. SMITH, Appellee.
    No. 2003-CC-00091-COA.
    Court of Appeals of Mississippi.
    May 18, 2004.
    Rehearing Denied July 27, 2004.
    Certiorari Denied Sept. 30, 2004.

      Joseph A. Goff; Jane L. Mapp, Jackson, attorneys for appellant.
    John H. Whitfield, attorney for appellee.
   SOUTHWICK, P. J.,

for the Court.

¶ 1. We today evaluate whether a state employee presented substantial evidence that he had been invalidly dismissed as a probationary employee. The employee’s appeal within the state personnel system resulted in a ruling that the dismissal was for political reasons and therefore improper. The agency has timely pursued judicial review. We find only strained speculation that a political reprisal caused the termination. There was no evidence to overcome the presumption of correctness of the employing agency’s decision. We reverse and enter judgment upholding the employee's termination.

¶2. Victor J. Smith testified that he began work with the Harrison County Sheriffs Department in 1985. He worked his way up into increasingly more important positions and ultimately became a captain. The last sheriff there before he left was Joe Price. Smith claims in the present litigation that because of his loyalty to Sheriff Price, others loyal to the person who defeated Price in the 1999 election made it clear that he would no longer be welcome at the sheriffs department. He tendered his resignation in January 2000, at the time that the new sheriff took office.

¶ 3. Among the positions in law enforcement that Smith thereafter sought was one in the Mississippi Department of Corrections. After interviews and other processing, Smith was hired by the Department as a “Correctional Field Officer I,” effective July 9, 2001. Almost simultaneously with his hiring, a new Regional Director for the region in which Smith would work began at the Department. This was Connie Taylor. Immediately upon learning that Smith was about to be employed, Taylor pursued having him terminated. He was, effective July 27, 2001.

¶4. Smith brought a claim before the Mississippi Employee Appeals Board, a component of the State Personnel Board. Miss.Code Ann. § 25-9-129 (Rev.2003). Both the hearing officer and then the Board found that improper political influence caused Smith to be terminated. His reinstatement with back pay was ordered. The decision was affirmed by the Hinds County Circuit Court on writ of certiorari. The Department of Corrections’ appeal was deflected here.

DISCUSSION

1. Jurisdiction

¶ 5. Being granted an option to appeal in litigation is a matter of statutory grace, not of right. Casino Magic Corp. v. Ladner, 666 So.2d 452 (Miss.1995). Grace was bestowed on employees to appeal from Employee Appeals Board decisions. Miss. Code Ann. § 25-9-131 (Rev.2003). There is no corresponding grace given to employing agencies. Gill v. Mississippi Dept, of Wildlife Conservation, 574 So.2d 586, 590 (Miss.1990). However, a party who believes itself aggrieved by the action of “all tribunals inferior to the circuit court,” may petition for a writ of certiorari to remove the case to circuit court. Miss.Code Ann. § 11-51-95 (Rev.2002). The petitioner may only seek review of “questions of law arising or appearing from the face of the record and proceedings” that are being reviewed. Miss.Code Ann. § 11-51-93 (Rev.2002). An agency wishing judicial review of an Employee Appeals Board decision may seek this writ. Gill, 574 So.2d at 590.

¶ 6. In this case, Smith alleges that the circuit court never acquired jurisdiction since the actual petition for writ of certiorari was too imprecise to justify the issuance of the writ. Smith alleges that the petition had to “set forth with particularity why the finding [of the Employee Appeals Board] was arbitrary or capricious.” Appellee Brief at 27 (¶ 93). This petition for a writ of certiorari alleged that the decision “was arbitrary and capricious in that it does not reflect an application of law to the facts,” and that “the facts of the cause do not support the findings” of the Employee Appeals Board. Attached as an exhibit to the petition was a copy of the hearing officer’s final decision and of the Board’s one-page affirmance of that decision.

¶ 7. To analyze Smith’s argument, we examine what is reviewed on certiorari. Though the statute limits review to “questions of law,” the sufficiency of the evidence is part of that review:

should the record and proceedings below reflect a decision wholly unsupported by any credible evidence, we would regard that decision as contrary to law and, as a matter appearing on the face of the record or proceedings, subject to modification or reversal. We thus are in our familiar posture of judicial review of administrative processes wherein we may interfere only where the board or agency’s decision is arbitrary and capricious, accepting in principle the notion that a decision unsupported by any evidence is by definition arbitrary and capricious.

Gill, 574 So.2d at 591 (footnote omitted).

¶ 8. Issuing a writ of certiorari is a discretionary matter. Merritt v. State, 497 So.2d 811, 813 (Miss.1986). We find no abuse in the exercise of the circuit court’s discretion to grant the writ despite that the petition complained only in a general way about the Employee Appeals Board’s decision. The petition specifically alleged an evidentiary deficit. Briefing and argument fleshed out where those shortcomings lay.

¶ 9. Smith also argues that because the 2002 legislature failed to adopt a proposed amendment to the review statute to permit the employing agency itself to appeal, that the right to review no longer exists. We will not explore the argument other than to say that the legislature’s failure to change the law leaves the law, to use a tautology, unchanged. Prior legal principles which permitted review by writ of certiorari remain in effect.

2. Review Standard

¶ 10. This appeal involves a review of the actions of two state agencies. Chronologically, the first action was by the Mississippi Department of Corrections when it decided to terminate Smith. The second agency action was the reversal of that termination by the Employee Appeals Board. The first level appellate court, the Hinds County Circuit Court, affirmed, but that initial judicial review is largely irrelevant for our purposes. Since a party was dissatisfied, we now serve as the second level judicial reviewers of the same decision that the circuit court reviewed.

¶ 11. Courts are not to substitute their judgment for that of administrative agencies when the latter act within the narrow areas of their statutory decision-making authority. Attala County Bd. of Supervisors v. Mississippi State Dept. of Health, 867 So.2d 1019, 1023 (Miss.2004). Discretion is exercised at the agency. A court examines the validity of the exercise within the wide range of discretion that is available. In a case such as the present one, an employing agency had discretion in the management of its work force, discretion to be exercised within certain parameters. The separate agency of the Employee Appeals Board reviewed that discretion and found it reversibly flawed. We seek an understanding of the relative weight to give to these separate agency decisions.

¶ 12. The foundational precedent for our understanding is Richmond v. Miss. Dept. of Human Services, 745 So.2d 254 (Miss.1999). That decision reversed an opinion of the Court of Appeals. Comparing the two decisions gives us a nuanced understanding of the nature of the appellate review. We discussed the Employee Appeals Board’s role in reviewing the action of the employing agency:

The board must consider (a) whether the facts supporting the proposed action are true, and (b) whether the reasons, if proven, are “sufficient grounds for the action taken.” Miss.Code Ann. § 25-9-127 (Rev.1991). Procedurally, however, the legislature has placed the burden on the appealing employee to show that the charged facts are not true or are not of sufficient gravity to merit the discipline imposed. Miss.Code Ann. § 25-9-127 (Rev.1991)....

Richmond v. Mississippi Dept. of Human Services, 96-CC-00667-COA (Miss.Ct.App. Aug. 4, 1998), at slip op. 3. The Board has twin responsibilities: to determine if what the agency claims was of concern did actually happen, and if so, whether it was enough to affect the employee in this manner. On both, the burden is on the complaining employee to disprove his agency’s decision.

¶ 13. As to the question in Richmond of whether the remedy adopted by the employing agency was proper, we upheld the Appeals Board decision to impose no penalty, which itself had overturned the employing agency’s decision to fire the employee. We found that included in its “broad authority is the board’s obligation to weigh whether a particular offense, even if proved, constituted ‘sufficient grounds for the action taken.’ ” Richmond, slip op. at 10, quoting Miss.Code Ann. § 25-9-127 (Rev.1991). The Supreme Court reversed. Our upholding the Employee Appeals Board alteration of the penalty — from dismissal to no penalty at all — was found to be error.

Rule 20(b) mandates that the EAB shall not alter the action taken by the agency, if the agency has acted in accordance with the published rule and if the personnel action taken by the agency is allowed under the guidelines. That is exactly what happened here. MDOC acted within the rules under which termination was allowed. There is no finding to the contrary. Johnson, having the burden of proof, failed to establish that good cause did not exist for her termination.

Richmond, 745 So.2d at 257, quoting Johnson v. Mississippi Dep’t of Corr., 682 So.2d 367, 370-71 (Miss.1996). Therefore, if certain events occur and the options for a penalty for such behavior under the rules applicable to the employing agency include the penalty actually imposed, the Appeals Board is without the authority to change the agency action.

¶ 14. The other part of the review is to examine the evidence to see if the alleged employee conduct was untrue, or even if true, was just a subterfuge for another and improper reason that caused the agency to act as it did. In Richmond, this Court held that we would look for substantial evidence in the record made by the Employee Appeals Board:

In order to reverse the EAB, we must determine that there was not substantial evidence in the record to support the findings made by the hearing officer and ratified by the full board. Gill, 574 So.2d at 591. We hold that there was, in fact, substantial evidence to support the EAB’s decision. Therefore, we conclude that the appeals board’s order must be given effect. This requires us to reverse the decision of the circuit court holding to the contrary.

Richmond, 96-CC-00667-COA (Miss.Ct. App. Aug. 4,1998), slip op. at 5.

¶ 15. There is nothing in the Supreme Court’s Richmond decision that censured our search for substantial evidence to support what the Employee Appeals Board did, as opposed to substantial evidence to support the employing agency’s original decision. The distinction is significant since “substantial evidence” is not an especially large quantum. It may be less than a preponderance but it has to be more than a “scintilla,” a suitably underutilized word judicially adopted for these purposes and which means a mere trace or minute amount. Bd. of Law Enforcement Officers Standards and Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996). The evidence must be such that would make any conclusion based on that evidence a reasonable one. Id. Since the amount may be less than a preponderance, there might be substantial evidence to support one fact-finder’s view, and the same record may provide substantial evidence to support the opposite view. Day-Brite Lighting Div., Emerson Elec. Co. v. Cummings, 419 So.2d 211, 218 (Miss.1982). We need to find substantial evidence underlying the Employee Appeals Board’s decision to reinstate the employee, even if there was also substantial evidence to support the earlier termination.

¶ 16. What the Employee Appeals Board had to find by substantial evidence is more complex than is the usual agency decision. That is because it was the employee’s burden to prove that an improper reason underlay the termination.

The statute and administrative regulations clearly place the burden of persuasion on the aggrieved employee to demonstrate that the reasons given are not true. Rule 17, Administrative Rules of the Mississippi Employee Appeals Board; Rules Miss.Code Ann. § 25-9-127 (1972).... This is not mere semantics. Under our scheme, in a nutshell, ties go to the appointing authority. That is, unless the employee carries the burden of persuasion that the alleged conduct did not occur, the employee has no right to have the employment decision overturned.

Richmond, 745 So.2d at 258, quoting Mississippi Dep’t of Corr. v. McClee, 677 So.2d 732, 735 (Miss.1996). Since the Employee Appeals Board reversed the employing agency’s decision, there must be substantial evidence that the actual reason was not what the Department of Corrections asserted but there was a different and improper reason.

¶ 17. Our review of the negative finding by the Board is still guided by the usual rules for appellate review. Upholding an agency on appeal requires these determinations: 1) existence of substantial evidence to support the decision; 2) absence of arbitrary or capricious conduct; 3) action within scope of agency’s powers; and 4) no violation of parties’ constitutional rights. Mississippi State Bd. of Nursing v. Wilson, 624 So.2d 485, 489 (Miss.1993). The Employee Appeals Board is the agency whose decision is being reviewed, and thus those standards apply to the record made before that agency in the de novo hearing that it conducted of the employment decision that was appealed. We are searching for substantial evidence and the absence of arbitrariness in the Employee Appeals Board’s decision that Smith proved error by the Department of Corrections.

¶ 18. Having determined the standard to apply and what to apply it to, we now turn to the evidence and the findings that were made.

S. Merits of Employee Appeals Board Decision

¶ 19. The Employee Appeals Board affirmed the decision of its hearing officer in this case. The substance of the Board’s order was nothing more than the hearing officer’s decision was “proper, correct and should be affirmed.” We thus examine the hearing officer’s findings, but we consider them to be the findings of the Board itself and will refer to them in that manner.

¶ 20. The Board found that only one of the fifteen witnesses said anything negative about Smith. As we will show, the count of negative sources might be a little higher than that. Several witnesses testified that Smith was qualified for the position at the Department of Corrections. The Department argued that it dismissed Smith during his probationary period because of concerns about his reputation among judges and law enforcement officers in Harrison County. There was also concern about an arrest or conviction that had been expunged from Smith’s record.

¶ 21. For most state employees, dismissal must be based on “inefficiency or good cause”; aggrieved employees can make two challenges to the Employee Appeals Board about their dismissal: (a) that “the reasons stated in the notice of dismissal .. are not true,” and (b) that the reasons, even if true, “are not sufficient grounds for the action taken.... ” Miss. Code Ann. § 25-9-127(1) (Rev.2003). Smith was a probationary employee during his first twelve months of employment and did not have these protections. Id. That did not leave him without rights. A very similar situation existed in one of the principal precedents, in that a probationary employee complained that he had been dismissed for political reasons. The Supreme Court found that even though a probationary employee has no protection via the “good cause” standard, still he many not be “adversely affected” for unlawful reasons. Gill, 574 So.2d at 591. Most state employees are protected by general policies established in another statute, including these:

(e) To assure fair treatment of ... employees in all aspects of personnel administration without regard to political affiliation,....
(f) To assure that employees are free from coercion for partisan or political purposes....

Miss.Code Ann. § 25-9-103 (Rev.2003). The Gill Court found that these “statutes standing alone confer upon state employees no express right to be secure in their employment from political interference. The legal , existence of the legislative language just quoted makes no sense, however, absent such rights.” Gill, 574 So.2d at 592.

¶22. Consequently, what Smith had to prove to the Employees Appeals Board by substantial evidence is that the Department of Corrections discharged him for political reasons. He pleads no other improper basis. What is not enough is that Smith show that he was a good employee, qualified to serve in the position. The Department did not need good cause for his dismissal as a probationary employee, but it did have to avoid bad cause.

a. Substantial evidence of events

¶ 23. The recommendation to terminate Smith from his position at the Department of Corrections was made by Regional Director Connie Taylor. It was then approved by a deputy commissioner based solely on Taylor’s recommendation. Taylor had worked for the Department since 1983. As Regional Director, she was responsible for two hundred employees in twenty-three probation and parole offices and in eight regional facilities, the latter being community work centers and restitution centers. She had known Victor Smith for about ten years.

¶ 24. Taylor became Regional Director on June 30, 2001. Smith had a application for employment that had already been approved, which Taylor noticed and informed those in the decision process that she did not favor. The outgoing Regional Director, with whom Taylor was meeting when she learned of Smith’s application, had already approved the recommendation for employment and the hiring was practically finalized. Smith became a Department employee on July 9. Due to Taylor’s efforts, on July 23, 2001, a termination letter was sent to Smith.

¶ 25. There was testimony that Connie Taylor believed that Smith had during his time at the Harrison County Sheriffs Department caused at least one circuit court judge to distrust his testimony. In her twenty years with the Department, she had frequently worked on the Gulf Coast. She testified that she told the outgoing Regional Director that Smith’s reputation among local law enforcement was not a positive one. She also said that in her observations through the years, Smith did not seem to be a hard worker — that he was always “sitting down either with his feet up on the desk or simply visiting with other staff members, and this is over a lengthy period of time.” She made a categorical statement at the hearing that other law enforcement agencies would not hire Smith, and that over a ten year period “I’ve never heard one nice, respectable thing said about Victor Smith.” Taylor summarized her reasons for not wanting him hired:

I could foresee there were going to be some problems. I do not think this person would function well in the courtroom or interacting with other law enforcement officers. I could even see it being questionable whether or not this person is very trustworthy to have in our office.

¶ 26. The accuracy of Taylor’s opinion is largely irrelevant. Considerable evidence was offered by Smith at the hearing that he was held in high esteem by those in local law enforcement with whom he had worked. Based on the evidence in the record, the preponderance is that he was a good employee in his previous positions. Nonetheless, what Smith must show is that the reason stated for the dismissal was a pretext for an improper reason, not just that it might have been in error. This case alleges that the actual reason was political ill will left over from his backing a losing candidate for Harrison County Sheriff in 1999. Taylor was asked whether she knew the losing candidate, Joe Price. She did. Price had lived a block from her when she was growing up, and she was friends and had been a classmate with some of his children. During her work in law enforcement, she had many contacts with Price. She considers him a good friend.

¶ 27. Smith had backed Sheriff Joe Price in the 1999 election, but George Payne won. Smith resigned effective on the day that Payne began his service as sheriff. Taylor testified that she also got along with newly elected Sheriff Payne. She denied that Smith’s support for Price in the 1999 election for Harrison County sheriff had anything to do with her decision that Smith should not be hired by the Department of Corrections. She denied talking to any elected official about Smith’s termination, or having been encouraged in anyway to have him terminated. Taylor testified that she did not know Smith was on the verge of being hired by the Department until the day she met with the outgoing Regional Director. She immediately expressed her objection.

¶ 28. On cross-examination, it was shown that Taylor’s opinion about Smith may not have been based on comprehensive knowledge of what he had done during his time at the sheriffs department and his reputation among others. Her opinion, in other words, may have been wrong.

¶ 29. There was also testimony that shortly before the termination letter was sent, and after Taylor had decided on the desirability of terminating Smith, she received a copy of an order that expunged an arrest or a conviction. The order was not introduced into evidence, but there was testimony that it concerned a conviction for grand larceny. The expungement was ordered on November 16, 1989. A copy of the order was provided to Taylor by an employee of the Harrison County Sheriffs Department, someone who had worked both for the defeated sheriff and who continued under the new sheriff. Taylor testified that the expungement order had very little to do with her decision. Her concerns about Smith were from her personal interactions with him.

¶ 30. The only other witness called by the Department was a deputy commissioner at the Department, Lora Cole, who testified that Taylor convinced her of the need to terminate Smith. The only matters that Taylor discussed with Cole were that Smith was a poor worker and that he did not have the reputation with local officials that would be helpful to the Department. Cole accepted Taylor’s recommendation and ordered Smith terminated. No discussion or allusion to political considerations occurred. No one else contacted Cole to encourage Smith’s firing.

¶ 31. At the hearing, Smith’s attorney called several witnesses who were involved in the decision to offer the position to Smith. They were positive in their comments about his abilities, the background check that was conducted, and the comments that they had received from the individuals listed as his references. He also had performed well in the few weeks he was employed by the Department before his termination.

¶ 32. One of Smith’s witnesses stated that Taylor had told her that one of the circuit judges in Harrison County had banned Smith from his courtroom. This witness telephoned the named judge and was told that Smith was not banned. However, the witness recounted that the judge told her “I never said that he lied, you know, on the stand, but that he told him some things that he had trouble believing, you know, that were a little farfetched.” On cross-examination, the witness repeated that the judge told her that “some of [Smith’s] testimony ... was a little hard for [the judge] to believe.”

¶ 33. Though most witnesses whom Smith called stated only positive things about him, one witness was aware of concerns that Smith may have engaged in profiling of Spanish-appearing individuals on the highway in making traffic stops.

¶ 34. Also testifying was the defeated sheriff, Joe Price. It was Smith’s support of Price that was found to have cost him his briefly-held position with the Department of Corrections. Sheriff Price thought that Smith was an excellent employee and thus disagreed with Taylor’s testimony about his zeal and abilities. Still, the former sheriff had no knowledge of any political pressure on the Department or on Connie Taylor not to hire Smith. Price’s testimony on the next point was elliptical, and we quote it because it is the only testimony besides that from Smith himself that refers to a cost being paid by Price’s political supporters:

Smith’s attorney: And isn’t it true that the current sheriff and the current sheriffs administration, although some of those individuals did work under your command, they are very harsh toward people like Mr. Smith and others who were just your diehard supporters?
Sheriff Price: There was a feeling there that probably exists in some of the former — former ranking people because he reported directly to me.
Smith’s attorney: Such as Major Cook? Sheriff Price: Major Cook. The higher rank and file. I’ve heard that, yes.

¶ 35. Former Sheriff Price said that he had a good relationship with Taylor, the person whom Smith accuses of forcing him out because he helped Price politically. Price agreed that Smith probably had been the subject of some media reports about profiling of Hispanic drivers, but he did not give much credence to them. He was also aware of problems that Smith had with testifying in one or more cases, though the complaint as he remembered it was from the district attorney.

¶ 36. We find nothing in the testimony or other evidence recounted so far that supports the charge that Smith was terminated because of political pressure due to his work for the defeated sheriff. The defeated Sheriff Price had “heard” of strong feelings among some of the higher ranking officers at the Harrison County Sheriffs Department, but there was no evidence that any such ill will infected the state or regional offices of the Department of Corrections, or the Regional Director Connie Taylor who had sought Smith’s termination. Even if an expunged conviction record should not be considered at all, the evidence was that the decision by Taylor to have him terminated had been made before that record was provided. Therefore, we turn to Smith’s own testimony to see if it provides any evidence to support the findings that he was improperly fired.

¶ 37. Smith’s attorney asked him why the charge of a political vendetta was made:

Smith: Over the years I’ve been with the Harrison County Sheriffs Department ..., other officers and ranking officers were jealous because of the things that I would obtain or schools that I would get to go to, items that we’d get to pick, things that I would be able to do for the Department.... I was offered by the George Payne administration [campaign?], either get on the bandwagon or you’ll regret it during a political rally, and I advised them then that I don’t jump ship.

¶ 38. Smith sought to link this 1999 threat by those connected to the current sheriff and the effort by Connie Taylor in 2001 at the Department of Corrections to have him terminated. The link was that Taylor called the sheriffs department after she had decided to try to have Smith terminated and an employee there passed on the information to her about the conviction that had been expunged. That means that the evidence to support that Connie Taylor’s actions were politically motivated was that someone at the sheriffs department, perhaps seeking to harm Smith for political reasons, caused Taylor to learn of an expunged crime.

¶ 39. Yet there is no evidence of any kind that the decision-maker at the Department of Corrections had any improper motivation, political or racial or sexual or anything else. True, there were also evi-dentiary doubts about whether Taylor’s opinions of Smith were shared by many other people. Yet that opinion was supported in part, both by a witness who said that one of the circuit judges felt that Smith’s trial testimony could be “hard to believe,” and by Sheriff Price who acknowledged some problems that Smith had during his service. Price defended Smith, but that is not the same as saying that Connie Taylor fabricated her concerns, much less that she did so because of Smith’s political work. No evidence permitted an inference that Taylor herself had a reason to be the instrument for a sheriffs department’s possibly politically-motivated ill will towards Smith.

¶ 40. We have surveyed and summarized the evidence as carefully and fairly as we can. Not a scintilla of evidence exists that Taylor herself had a political motive to have Smith fired. No judgment is being made on Smith’s merits as a law enforcement officer. We seek only evidence on which the Employee Appeals Board could have relied to conclude that Taylor had Smith terminated because of his political work. We find no such evidence.

b. Conformity of remedy of dismissal to agency rules

¶41. Since Smith was a probationary employee, the issue before us is not whether the facts that caused his dismissal were “good cause” under personnel rules for terminating employees. It was simply necessary that the Department of Corrections not dismiss Smith for a prohibited reason. We have already discussed the facts and law of that question. There is no further analysis needed regarding justification under state personnel regulations.

¶ 42. We reverse and enter judgment reinstating the decision of the Mississippi Department of Corrections to terminate Victor Smith.

¶ 43. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY AFFIRMING THE EMPLOYEE APPEALS BOARD IS REVERSED, AND JUDGMENT IS ENTERED UPHOLDING THE DISMISSAL OF VICTOR J. SMITH FROM EMPLOYMENT AT THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. ALL COSTS ARE ASSESSED TO THE APPELLEE.

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

      . Miss. Sen. J. 1997, 2067 (2002); Miss. H.J. 858, 910 (2002) (final recorded action on "SB 2854: State agencies; entitled to judicial review of decisions by Employee Appeals Board,” was the appointment of conference committee members from each house).


author: BRIDGES, P.J.,

text:
    MERIT DISTRIBUTION SERVICES, INC. and the Insurance Company of the State of Pennsylvania, Appellants v. Susan A. HUDSON, Appellee.
    No. 2003-WC-02426-COA.
    Court of Appeals of Mississippi.
    Sept. 28, 2004.

      Harold Ray Rogers, John H. Freeland, attorneys for appellants.
    William 0. Rutledge, New Albany, attorneys for appellee.
    Before BRIDGES, P.J., CHANDLER and GRIFFIS, JJ.
   BRIDGES, P.J.,

for the Court.

¶ 1. On December 7, 1998, Susan Hudson was injured while making a delivery for her employer, Merit Distribution Services. Hudson filed a claim for workers’ compensation benefits. An administrative law judge found Hudson to be permanently and totally disabled. The Full Commission adopted the administrative law judge’s findings and affirmed. Merit, aggrieved of the Commission’s decision, appealed to the Circuit Court of Union County, Mississippi. The circuit court also affirmed the Commission’s decision. Merit appeals the judgment of the circuit court on the following issues:

I. HUDSON MADE NO REAL EFFORT TO FIND A JOB AND THEREFORE CANNOT SHOW THAT SHE HAS ANY PERMANENT DISABILITY.

II. HUDSON CANNOT PROVE SHE SUFFERED A WORK RELATED INJURY BECAUSE THE EVIDENCE IS TOO INCONSISTENT.

Finding no error, we affirm the decision of the circuit court.

FACTS

¶ 2. Susan Hudson drove trucks while employed with Merit Distribution Services. On December 7, 1998, Hudson drove a truck from New Albany, Mississippi to Mobile, Alabama. After her truck was unloaded and re-loaded, Hudson attempted to close the rear of the truck. She felt some resistance from some loose molding and fell on the concrete dock adjacent to the truck. She had the warehouse manager close the door for her because she had injured her neck and back. Hudson spoke to Merit’s dispatcher and told the dispatcher that the delivery was complete. Hudson also told the dispatcher about her injury.

¶ 3. The next day, Hudson visited Dr. Eric Harding for treatment. On December 12, five days after the accident, Hudson collapsed due to pain. She was rushed to the emergency room. She eventually had two surgeries and several visits to the Methodist Pain Institute and was kept on heavy medication for her injuries. On February 17, 2000, over two years after Hudson’s initial injury, Dr. Roger Cicala, a pain management specialist assigned Hudson a 14% impairment to her body as a whole. Dr. Cicala restricted Hudson to lifting no more than twenty pounds. Dr. Cicala did not think Hudson could return to driving trucks. There is a discrepancy as to whether Hudson was actively looking for employment that fit within the restrictions given by the doctor.

¶4. Hudson testified that she told at least three people at Merit about her injury within thirty days of the accident. She testified that she notified the following people of her injuries: her immediate boss, someone in human resources, and the dispatcher she talked to that night. The dispatcher failed to record that fact in the logs. Hudson also stated that she told several other drivers about her injury. Hudson was receiving short-term disability from Merit in January of 1999. As discussed above, the administrative law judge found Hudson totally and permanently disabled. The full Commission adopted the administrative law judge’s findings of fact and conclusions of law and affirmed the administrative law judge’s decision. Likewise, the circuit court affirmed the Commission’s decision.

ANALYSIS

¶ 5. “The findings and order of the Workers’ Compensation Commission are binding on the Court so long as they are ‘supported by substantial evidence.’ ” Vance v. Tioin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994) (quoting Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). This Court will reverse only where a Commission order is clearly erroneous and contrary to the weight of the credible evidence. Vance, 641 So.2d at 1180; see also Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 12 (Miss.1994). “This Court will overturn a [C]om-mission decision only for an error of law or an unsupportable finding of fact.” Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991). Therefore, this Court will overturn a Commission decision if it finds that the Commission’s decision was arbitrary and capricious. Id.

I. HUDSON MADE NO REAL EFFORT TO FIND A JOB AND THEREFORE CANNOT SHOW THAT SHE HAS ANY PERMANENT DISABILITY.

¶ 6. Merit claims that Hudson made no real effort to find a job within her physical limitations and that the only inquiries she made were merely to satisfy the procedural requirements of filing her complaint with the Worker’s Compensation Commission. The factors to consider in deciding whether the claimant has made an attempt to find employment (a prima facie case of disability) are: (1) economic and industrial aspects of the local community, (2) the jobs available in the community, and (3) the claimant’s general educational background, including work skills and the particular nature of the disability for which compensation is sought. Thompson v. Wells-Lamont Corp., 362 So.2d 638, 641 (Miss.1978). After the claimant makes out a prima facie case of disability, the burden of proof shifts to the employer. The employer must then present evidence showing that the claimant’s efforts to obtain other employment were a mere sham, less than reasonable, or without proper diligence. Id. at 641.

¶ 7. Merit’s argument refers to the evidence offered at trial regarding Hudson’s attempts to find employment. She testified that she applied for work at five companies. At all of them, she applied for a trucking position and claimed that was the only qualification she had. Merit claimed that it could not find listings in the phone book for some of the companies with which Hudson applied. Some of the companies claimed Hudson did not apply for a position with them. The administrative law judge was aware of the extent to which Hudson searched for employment and still found her permanently and totally disabled. The full Commission, as the finder of fact, chose to adopt the administrative law judge’s findings and conclusions in this case. The Commission agreed that the conflicting evidence weighed in Hudson’s favor. Athough the evidence conflicted, we find that there was evidence that suggested Hudson attempted to find subsequent employment. Because there was such evidence, the circuit court’s decision to affirm the full Commission’s ruling is not clearly erroneous. Accordingly, this error is without merit.

II. HUDSON CANNOT PROVE SHE SUFFERED A WORK-RELATED INJURY BECAUSE THE EVIDENCE IS TOO INCONSISTENT.

¶ 8. In this second assignment of error, Merit highlights inconsistencies in Hudson’s work-related injury claim. Merit points to the medical evidence and questions Hudson’s motivation for claiming an injury. The lay witnesses who testified on Hudson’s behalf had inconsistencies in their stories regarding the specifics of Hudson’s injury. The personnel file on Hudson does not mention an injury until two months afterwards. Hudson’s personnel file was inconsistent with other evidence that Hudson presented. For example, Hudson’s file did not have copies of the doctor’s slips that explained Hudson’s medical reasons for missing work. Another discrepancy was that Hudson claimed that she notified the dispatcher of her injury when it occurred but the dispatcher’s logs do not reflect that notification. Merit claims Hudson created the injury because of other reprimands she received at work.

¶ 9. “[The] [claimant bears the general burden of proof of establishing every essential element of the claim, and it is not sufficient to leave the matter to surmise, conjecture, or speculation.” Toldson v. Anderson-Tully Co., 724 So.2d 399, 402 (¶ 11) (Miss.Ct.App.1998). Despite the conflicting evidence, the administrative judge concluded that Hudson did sustain a work-related injury. In the administrative judge’s order, the administrative judge reflected on the inconsistent evidence that Merit highlights in its appeal. As the finder of fact the Full Commission agreed with the administrative judge that the evidence Hudson presented was more convincing.

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

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


text:
    Sixto Jose RAMIREZ, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-01558-COA.
    Court of Appeals of Mississippi.
    Sept. 28, 2004.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before BRIDGES, P.J., CHANDLER and GRIFFIS, JJ.
   BRIDGES, P.J.,

for the Court.

¶ 1. Sixto Jose Ramirez was convicted of possession of more than one kilogram of marijuana with intent to distribute on June 11, 2002, and sentenced to serve twenty-two years in the custody of the Mississippi Department of Corrections. From that conviction and sentence he appeals to this Court. Ramirez was tried with a co-defendant, Margarita A. Arguelles, and. both were convicted. Arguelles has previously appealed her conviction to this court in the case styled, Arguelles v. State, 867 So.2d 1036 (Miss.Ct.App.2003).

STATEMENT OF THE ISSUE

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

FACTS

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

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

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

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

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

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

ANALYSIS

¶ 8. The issue raised, facts and evidence given by Ramirez are identical to the Arg-uelles case. Finding no significant changes in the case law, this Court adopts its decision in the Arguelles case. A modification of that opinion is below.

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

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

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

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

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

¶ 13. The detention of the second package for eight days without a search warrant might probably violate the reasonableness test for detention of mailed parcels as set out in Van Leeuwen. However, this is not sufficient grounds for reversal for two separate reasons. One is the common procedural bar that since this issue was not objected to at the trial level it is not reviewable on appeal. Williams v. Williams, 810 So.2d 613, 615(¶ 9) (Miss.Ct. App.2001). The second reason is that even if Ramirez was convicted of possession only of the marijuana found in the first package detained in El Paso, 4.5937 kilograms, and not convicted of the cumulative weight of both packages, he would still be required to serve a sentence of six to twenty-four years. Miss.Code Ann. § 41-29-139(c)(2)(F) (Rev.2001). The sentence he received of twenty-two years is within the statutory limit. The decision of the trial court is affirmed.

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

KING, C.J., LEE, P.J., MYERS, CHANDLER, GRIFFIS AND BARNES, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. ISHEE, J., NOT PARTICIPATING.


author: LEE, P.J.,

text:
    Christopher SULLIVAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-01334-COA.
    Court of Appeals of Mississippi.
    Sept. 28, 2004.

      Helen Bagwell Kelly, Adam A. Pittman, Batesville, attorneys for appellant.
    Office of the Attorney General by” W. Glenn Watts, attorney for appellee.
    Before BRIDGES and LEE, P.JJ., CHANDLER and GRIFFIS, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On April 14, 2003, a jury in the Tunica County Circuit Court found Christopher Sullivan guilty of robbery. Sullivan was sentenced to serve three years in the custody of the Mississippi Department of Corrections. Sullivan now appeals to this Court asserting the following: (1) the evidence was insufficient to support his conviction; (2) there was insufficient evidence to establish that he aided and abetted his co-defendant in the commission of the crime; and (3) the trial court erred in denying his request for a lesser-included offense instruction of petit larceny.

FACTS

¶ 2. On October 3, 2002, Sullivan and Kenneth Smith were en route to Tunica, Mississippi. The two men stopped at the Flash Market in Robinsonville, Mississippi, where Sullivan purchased a money order and Smith purchased gum. Sullivan and Smith left the store and proceeded to the Horseshoe Casino where Sullivan was seeking employment. Upon reaching the casino, Sullivan was informed that the job interviews had ceased for that day. Sullivan and Smith then decided to return to the Flash Market.

¶ 3. Isiah Miller, the cashier at the Flash Market, testified that Sullivan and Smith entered the store to purchase a money order and some gum, respectively, but that they returned about fifteen minutes later. Miller stated that Sullivan came to the back office where he was using the telephone and asked him questions about the money order. When Miller attempted to enter the store, Sullivan told him more than once not to leave the office. Miller saw Smith take something from on or near the cash register and ran towards Smith, grabbing him by the shirt and knocking him to the floor. Smith then dropped what he was carrying, $15 in rolled pennies, and pulled a knife on Miller. At this point, Miller testified that Sullivan walked out to his truck and started it. Smith then exited the store, got into Sullivan’s truck and they drove away. Miller was able to write down the license number and Sullivan was stopped shortly thereafter.

DISCUSSION OF ISSUES

I. WAS THE EVIDENCE SUFFICIENT TO SUPPORT SULLIVAN’S CONVICTION?

¶4. In his first issue, Sullivan argues that there was insufficient evidence to support his conviction. Specifically, Sullivan claims that the State failed to establish the elements of the crime of armed robbery. When testing the legal sufficiency of the state’s evidence, the applicable standard of review is as follows: “the court must review the evidence in the light most favorable to the [Sjtate, accept as true all the evidence supporting the guilty verdict, and give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). The court will reverse only when reasonable and fair-minded jurors could find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). Furthermore, it has long been a rule in Mississippi that 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)).

¶ 5. Sullivan contends that the State failed to prove a causal relationship between Miller’s fear and the relinquishment by Miller of the stolen property. Although Sullivan was charged with armed robbery, the jury found him guilty of robbery. According to Mississippi Code Annotated Section 97-3-73 (Rev.2000), a person “who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of immediate injury to his person,” is guilty of robbery.

¶ 6. Sullivan argues that the fear felt by Miller did not cause Miller to relinquish the pennies to Smith, but Miller’s fear was present only after Smith had taken possession of the pennies. In ruling on Sullivan’s motion for a directed verdict, the trial court found that the State had established a prima facie case by showing that the knife was used during the course of the transaction. Miller testified that Sullivan attempted to keep him in his office, he saw Smith taking money, and he attempted to stop Smith. During this altercation, Smith apparently dropped the pennies and pulled out a knife, at which point Miller let go of Smith and both men jumped into Sullivan’s waiting car. We find that there was sufficient evidence for the jury to find Sullivan guilty of robbery. This issue is without merit.

II. WAS THE EVIDENCE SUFFICIENT TO ESTABLISH THAT SULLIVAN AIDED AND ABETTED SMITH IN THE COMMISSION OF THE CRIME?

¶ 7. In his second issue, Sullivan argues that there was insufficient evidence to establish that he aided and abetted Smith in the commission of the crime. Sullivan also contends that the only act he committed was distracting the clerk allowing Smith to remove the coins. It is well settled that to aid and abet in the commission of a felony, one must “do something that will incite, encourage, or assist the actual perpetrator in the commission of the crime.” Vaughn v. State, 712 So.2d 721, 724(¶ 11) (Miss.1998). However, entering the store twice with Smith, repeatedly ordering the clerk to remain in his office so that a crime could be committed, waiting around during the ensuing altercation, and providing the means of escape is clearly indicative of aiding and abetting. We find that there was sufficient evidence for the jury to find Sullivan guilty of robbery.

III. DID THE TRIAL COURT ERR IN DENYING SULLIVAN’S REQUEST FOR A LESSER INCLUDED OFFENSE INSTRUCTION OF PET-IT LARCENY?

¶ 8. In his third issue, Sullivan contends that the trial court erred in denying his request for a lesser-included offense instruction of petit larceny. In reviewing the denial of a jury instruction, the appellate court must consider not only the denied instruction but also all of the instructions which were given to ascertain if error lies in the refusal to give the requested instruction. See Coleman v. State, 697 So.2d 777, 782 (Miss.1997). “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in another instruction, or is without foundation in the evidence.” Heidel v. State, 587 So.2d 835, 842 (Miss.1991).

¶ 9. In Silas v. State, 847 So.2d 899(¶ 16) (Miss.Ct.App.2002), this Court determined that the trial court did not err in failing to grant a petit larceny instruction as a lesser-included offense of robbery. This Court found that “petit larceny involves the taking of one’s property, usually outside of one’s presence, without violence to one’s person or fear of some immediate injury to one’s person. Here the money was taken from Pamela’s [the victim] person by a violent act of snatching it from her person.” Id. The trial court in the case sub judice determined that a petit larceny instruction was not warranted because the struggle between Miller and Smith, along with the brandishing of a knife by Smith, occurred before Smith and Sullivan fled. We cannot find that the judge erred in refusing to grant the petit larceny instruction.

¶ 10. THE JUDGMENT OF THE TU-NICA COUNTY CIRCUIT COURT OF CONVICTION OF ROBBERY AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SENTENCE TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED, IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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