text:
    Billy Wayne FRITH and Wanda Frith as Parents and Natural Guardians of Joshua Brent Frith, A Minor v. BIC CORPORATION.
    No. 2000-CT-01124-SCT.
    Supreme Court of Mississippi.
    Jan. 15, 2004.

      Dana J. Swan, Clarksdale, attorney for appellants.
    Jeremy Luke Birdsall, D. Collier Graham, Jr., Michael B. Wallace, Jackson, attorneys for appellee.
   ON WRIT OF CERTIORARI

CARLSON, Justice,

for the Court.

¶ 1. Today’s case is before us based on our prior grant of a writ of certiorari on the petition filed by the BIC Corporation as a result of the Court of Appeals’ reversal of the trial court’s grant of summary judgment in favor of BIC. Finding that the Court of Appeals erred, we reverse the judgment of the Court of Appeals and affirm the grant of summary judgment, and the final judgment consistent therewith, as entered by the Circuit Court of Scott County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On December 19, 1994, Joshua Brent Frith (Joshua), who was ten years old at the time of the unfortunate incident giving rise to this action, was playing alone in his backyard in Morton, Mississippi. That day Eva Odom, Joshua’s maternal grandmother who lived in the home with Joshua and his parents, was in charge of Joshua’s care. Joshua found a disposable cigarette lighter in the drainage ditch behind his house. Not surprisingly, Joshua was curious and attempted to operate the lighter. Athough Joshua’s persistent flicking of the lighter produced no flame, it did produce sparks. Joshua continued to flick the lighter as he walked by a gasoline container located near the rear of his house. The resulting sparks produced an explosion which caused Joshua to receive severe burns. Athough the lighter was never recovered, Joshua believed the lighter to be one commonly referred to as a “BIC lighter.” In fact, Joshua would later identify an exemplar lighter, identified as a J-26 Model Child Guard lighter manufactured by the BIC Corporation (BIC), as being similar to the one he was operating on the day of the accident.

¶ 3. Because of this accident, Joshua’s parents, Billy Wayne and Wanda Frith, filed suit in the Circuit Court of Scott County, seeking damages on negligence and products liability theories. The named defendants were BIC (the manufacturer of the cigarette lighter); Gott a/k/a Gott Corporation and Rubbermaid Specialty Products, Inc. (the entities believed to have manufactured the gasoline container); and, the Estate of Eva Odom. Mrs. Odom, who was looking after Joshua on the day of the accident, died prior to the commencement of the lawsuit. The defendants (save the Odom Estate) removed this case to federal court on the allegation that Eva Odom’s estate had been fraudulently joined as a party defendant for the sole purpose of defeating diversity jurisdiction. In due course, the Friths filed a motion in the United States District Court for the Southern District of Mississippi to have the case remanded back to state court. Judge William H. Barbour, Jr. determined that while the Friths’ claims against BIC were preempted by federal law, the federal court lacked removal jurisdiction to enforce federal preemption inasmuch as the Estate of Mrs. Odom (a necessary party) had failed to join in the petition for removal to federal court. Frith v. BIC Corp., Civ. Ac. No. 3:98CV280BN (S.D.Miss.1998).

¶ 4. Upon remand to state court, BIC filed a motion for summary judgment, alleging inter alia that the Friths’ claims, which were state-based common law claims, were preempted by federal law. The circuit court agreed and granted summary judgment in favor of BIC. Subsequent to the entry of the Memorandum Opinion and Order granting summary judgment, the trial court likewise entered its final judgment in favor of BIC. See Miss. R. Civ. P. 54(b). Aggrieved by the circuit court’s adverse judgment, the Friths appealed to this Court, which assigned the case to the Court of Appeals for disposition. The trial court stayed any further proceedings against the remaining defendants until such time as the issues presented on this appeal had been resolved.

PROCEEDINGS BEFORE THE COURT OF APPEALS

¶ 5. By the time this case reached the Court of Appeals, the Friths had abandoned their common law negligence claim and were pursuing only their strict liability claim under a products liability theory. The Court of Appeals, in a 7-3 decision, initially affirmed the trial court’s grant of summary judgment in favor of BIC. However, the Court of Appeals subsequently granted the Friths’ motion for rehearing, withdrew its original opinion, and substituted a new opinion in its stead. In its substituted opinion, the Court of Appeals, by a 6-3-1 vote, reversed the trial court’s grant of summary judgment and remanded the ease for a trial on the merits. Frith v. BIC Corp., 852 So.2d 592 (Miss.Ct.App.2003). After the Court of Appeals denied BIC’s motion for rehearing, this Court granted BIC’s cert, petition to consider the federal preemption issue.

STANDARD OF REVIEW

¶ 6. We are called upon today to determine whether the trial court’s grant of summary judgment in favor of BIC was appropriate based on our civil procedure rules [Miss.R.Civ.P. 56] and the applicable case law. This Court applies a de novo standard of review on appeal from a grant of summary judgment by the trial court. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss.2001); Jenkins v. Ohio. Cas. Ins. Co., 794 So.2d 228, 232 (Miss.2001); Russell v. Orr, 700 So.2d 619, 622 (Miss.1997); Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995). The proponent of a summary judgment motion bears the burden of showing that there are no genuine issues of material fact such that he is entitled to judgment as a matter of law. Collier v. Trustmark Nat’l Bank, 678 So.2d 693, 696 (Miss.1996). The motion may not be defeated merely by responding with general allegations, but must set forth specific facts showing that issues exist which necessitate a trial. Drummond v. Buckley, 627 So.2d 264, 267 (Miss.1993). After viewing evidentiary matters in a light most favorable to the nonmoving party, this Court will only reverse the decision of the trial court if triable issues of fact exist. Travis v. Stewart, 680 So.2d 214, 216 (Miss.1996). See also Brown v. Credit Ctr., Inc., 444 So.2d 358, 361-65 (Miss.1983), for a thorough discussion of our summary judgment procedure.

DISCUSSION

¶ 7. In order to resolve the issue of the appropriateness of the Court of Appeals’ reversal of the trial court’s grant of summary judgment, we must consider whether federal preemption precludes the Friths’ state law claims. Of the various claims initially viable before the trial court, the crucial claim asserted against BIC is that of a design defect in a disposable lighter resulting in an allegedly insufficient child resistant product, which enabled a ten-year-old boy to use the lighter in such a way as to produce sparks which ignited fumes from a nearby gasoline container.

A. The Consumer Product Safety Commission.

¶ 8. The Consumer Product Safety Commission (CPSC), a federal commission, previously underwent a comprehensive process to establish uniform child resistance standards for disposable lighters which would most effectively and feasibly achieve the federal safety objectives of reducing fire-related injuries and deaths involving children. After considering many alternatives, the CPSC made an obviously knowing and conscious regulatory decision intended to encourage public acceptance and use of child resistance lighters by adult consumers. The CPSC determined that it was certainly not incomprehensible that it could create safety enhanced standards so strict that the lighters would prove too difficult to use by adult, consumers who might then choose less safe alternatives to produce fire (i.e., matches).

B. The Consumer Product Safety Act.

¶ 9. The Consumer Product Safety Act (CPSA), is codified as Title 15, United States Code, §§ 2051-2083. The CPSA contains a preemption clause:

Whenever a consumer product safety standard under this chapter is in effect and applies to a risk of injury associated with a consumer product, no State or political subdivision of a State shall have any authority either to establish or to continue in effect any provision of a safety standard or regulation which prescribes any requirements as to the performance, composition, contents, design, finish, construction, packaging, or labeling of such product which are designed to deal with the same risk of injury associated with such consumer product, unless such requirements are identical to the requirements of the Federal standard.

15 U.S.C. § 2075(a) (1997).

C.The CPSC Regulations.

¶ 10. In order to implement the CPSA, the CPSC enacted certain regulations. 16 C.F.R. §§ 1210.1-1210.20. 16 C.F.R.

§ 1210.3 states in pertinent part:

(a) A lighter subject to this part 1210 shall be resistant to successful operation by at least 85 percent of the child test panel when tested in the manner prescribed by 1210.4.
(b) The mechanism or system of a lighter subject to this part 1210 that makes the product resist successful operation by children must:
(1) reset itself automatically after each operation of the ignition mechanism of the lighter,
(2) not impair safe operation of the lighter when used in a normal and convenient manner,
(3) be effective for the reasonable expected life of the lighter, and
(4) not be easily overridden or deactivated.

D. Federal Court Action Upon Removal.

¶ 11. Subsequent to removal to the United States District Court for the Southern District of Mississippi, Judge Barbour, en route to remanding the case to state court because all defendants did not join in the notice of removal, found that the Friths’ “cause of action for design defect of the cigarette lighter necessarily ‘arises under’ federal law and presents a federal question;” however, Judge Barbour likewise found that inasmuch as he was constrained to remand the case, the state court would be “perfectly capable of deciding the federal questions presented in this case.” We also find the following provisions of Judge Barbour’s order to be enlightening:

When determining whether a cause of action has been preempted by federal law, “the purpose of Congress is the ultimate touchstone.” Cipollone v. Liggett Group, 505 U.S. 504, 516, 112 S.Ct. 2608, 2619, 120 L.Ed.2d 407 (1992) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 222, 11 L.Ed.2d 179 (1963)). The intent of Congress may be “explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (citing Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)).
In the absence of an express congressional command, state law is preempted if that law actually conflicts with federal law, see Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n., 461 U.S. 190, 204, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983), or if federal law so thoroughly occupies a legislative field “as to make reasonable the inference that Congress left no room for the States to supplement it.”
Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)).
The Court also notes that Defendants have alleged, and Plaintiffs have not rebutted, that the design of the J-26 Model Child Guard cigarette lighter at issue in this lawsuit is in full compliance with the child resistance safety standards of the CPSC regulations for cigarette lighters enacted by the CPSC. To apply state or common law standards to the design of this cigarette lighter could subject BIC to two different regulations of the same subject: the federal regulations of the CPSC and the higher common law standard urged by the Plaintiff. Clearly, this was not what Congress intended when it passed the CPSA. The Court finds that Plaintiffs cause of action for design defect of the cigarette lighter necessarily ‘arises under’ federal law and presents a federal question.

Frith v. BIC Corp., Civ. Ac. No. 3:98CV280BN, 15-16, 20-21 (S.D.Miss.1998). Again, notwithstanding Judge Barbour’s finding on the federal preemption issue, he left viable that issue to be determined upon remand by the state court judge.

E. State Court Action Upon Remand.

¶ 12. Upon remand, the circuit court granted BIC’s subsequently filed motion for summary judgment, and in so doing, the circuit court held, inter alia:

Accordingly, the Court finds that the subject BIC lighter complies with an established federal safety standard for child resistancy and that Plaintiffs are prohibited from imposing upon Defendant BIC through a state law action a different child resistancy standard which conflicts with federal safety objectives, it having been clearly determined that the federal authority has pre-empted the field.

F. This Court’s Prior Analysis of Federal Preemption.

¶ 13. This Court has previously analyzed federal preemption and state law claims. In Cooper v. General Motors Corp., 702 So.2d 428 (Miss.1997), we were confronted with a products liability action brought against an automobile manufacturer under a design defect theory as a result of the manufacturer’s failure to install air bags in a 1984 vehicle. We acknowledged in Cooper, that there were only three ways in which federal preemption might occur: “(1) where Congress explicitly preempts state law; (2) where preemption is implied because Congress has occupied the entire field, or (3) where preemption is implied because there is an actual conflict between federal and state law.” Id. at 434 (citing English v. General Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 2274-75, 110 L.Ed.2d 65 (1990); Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988)). After an exhaustive discussion of the history of the National Traffic and Motor Vehicle Safety Act (NTMVSA), and the case law in other state and federal jurisdictions analyzing federal preemption and state law claims, we used an implied preemption analysis and thus held that the NTMVSA preempted the air bag claim, noting that implied preemption may exist only where both state and federal requirements cannot be simultaneously met, or where state law defeats the purpose of the federal law. “The cornerstone of preemption is that a state law which conflicts with the federal law is invalid under the Supremacy Clause.” 702 So.2d at 434 (citing Freightliner Corp. v. Myrick, 514 U.S. 280, 286-87, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995)). In so holding, we stated, inter alia:

While one might look at [Federal Motor Vehicle Safety Standards] as having no preemptive effect because it is a minimum standard, and thereby, freeing a state to exceed its requirement, FMVSS 208 differs in that it explicitly offers an option to manufacturers not to include air bags, and thus, failure to include air bags in automobiles cannot give rise to state liability without conflicting with the federal regulation. Thus, the third kind of preemption (implied preemption through actual conflict) is applicable to the issue at bar. Accordingly, this Court will filter this case through an implied preemption grid.
i}: ‡ Hí ❖ # JH # ❖ ‡
Allowing common law liability under Mississippi law for failure to install an air bag punishes manufacturers for exercising a federally sanctioned choice. It would create an actual and definitive conflict. Thus, the trier was not in error for granting partial summary judgment on the preemption claim.

702 So.2d at 434-35.

G. The United States Supreme Court’s Prior Analysis of Federal Preemption.

¶ 14. After our decision in Cooper, the United States Supreme Court was likewise confronted with the issue of a federal preemption analysis in a case involving state law tort claims that the subject vehicle was defective because the vehicle was not equipped with air bags and that such de-feet contributed to the victim’s injuries and damages caused in a vehicular accident. In Geier v. American Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000), the U.S. Supreme Court likewise considered the applicability of the NTMVSA. In Geier, the plaintiffs argued that manufacturers had the duty to install air bags in all 1987 vehicles. The Court held:

FMVSS 208 sought a gradually developing mix of alternative passive restraint devices for safety-related reasons. The rule of state tort law for which [plaintiffs] argue would stand as an “obstacle” to the accomplishment of that objective. And the statute foresees the application of ordinary principles of pre-emption in cases of actual conflict. Hence, the tort action is pre-empted.

529 U.S. at 886, 120 S.Ct. at 1928.

H. Our Analysis of Federal Preemption in Today’s Case.

¶ 15. We now keep in mind these enunciated principles and rules of law as we turn to the case sub judice. A review of the record in this case, including the pleadings, reveals that the common law standard which the Friths would have us apply to BIC is a higher standard than that established by federal law. In essence the Friths argue that BIC should be held to the standard of producing a lighter which a 10-year-old child cannot use. In an effort to undergird their argument, the Friths assert that while the States are no doubt obligated to apply what the Friths perceive to be the minimum standard established by federal law, the States are not prohibited from establishing a higher standard which would further protect their consumer-citizens. Unfortunately, the Court of Appeals, in its substituted opinion, accepted the Friths’ argument and erroneously relied on 15 U.S.C. § 2075(b) which provides:

Subsection (a) of this section does not prevent the Federal Government or the government of any State or political subdivision of a State from establishing or continuing in effect a safety requirement applicable to a consumer product for its own use which requirement is designed to protect against a risk of injury associated with the product and which is not identical to the consumer product safety standard applicable to the product under this chapter if the Federal, State, or political subdivision requirement provides a higher degree of protection from such risk of injury than the standard applicable under this chapter.

¶ 16. We know without question that the Court of Appeals relied almost exclusively on the applicability of 15 U.S.C. § 2075(b) because of the following language contained in its opinion:

The federal standard is a minimum standard and any state may establish or continue a safety requirement so long as that safety requirement provides a higher degree of protection than the federal standard. 15 U.S.C.A. § 2075(b).
The applicable federal safety standard is that lighter companies are to implement safety devices on the lighters so that they cannot be successfully used by children five years of age. 16 C.F.R. § 1210.1. The standard proposed by the Friths is a higher standard than that established by federal law. Based on the dictates of 15 U.S.C.A. § 2075(b), state and federal law would not conflict as the state law would provide more protection to the product consumer. The trial court’s grant of summary judgment in favor of BIC Corporation finding that federal law preempted state law is reversed and remanded for new trial.

852 So.2d at 593. However, what the Friths, and ultimately the Court of Appeals, failed to consider is that the legislative history reveals that 15 U.S.C. § 2075(b) applies not to products for use by the general adult-consumer public, but instead only to products to be used by the state or local governmental entities. There is voluminous documentation to this effect, including the Code of Federal Regulations. 16 C.F.R. § 1061.3 states:

(a) The [Consumer Product Safety] Commission’s statutory preemption provisions provide, generally, that whenever consumer products are subject to certain Commission statutes, standards, or regulations, a State or local requirement applicable to the same product is preempted, i.e., superseded and made unenforceable, if both are designed to protect against the same risk of injury or illness, unless the State or local requirement is identical to the Commission’s statutory requirement, standard, or regulation. A State or local requirement is not preempted if the product it is applicable to is for the State or local government’s own use and the requirement provides a higher degree of protection than the Commission’s statutorg requirement, standard, or regulation.

(emphasis added). We are dealing today with a BIC lighter which was manufactured for use by the general adult public— not for use by the State of Mississippi, Scott County, or the City of Morton. Thus, 15 U.S.C. § 2075(b) is inapplicable to the Friths’ case.

¶ 17. In the end, we are dealing not with an express Congressional preemption, but instead a question of implied Congressional preemption because of a potential conflict between federal law and our state law. Thus we must filter the Friths’ case “through an implied preemption grid.” Cooper, 702 So.2d at 434. The record before us unequivocally reveals a genuine effort by Congress and federal regulators to reach a balance by sanctioning child-resistant lighters not too difficult for adult operation. A more stringent standard would no doubt frustrate the objective of the disposable lighter regulations. In today’s case, the federal standards applicable to lighters were intended to make it as difficult as feasibly possible for a five-year-old child to use. If a state law claim succeeded in imposing stricter child-resistant requirements for disposable lighters such that a ten-year-old child could not operate the lighter to produce a flame or sparks, then the lighter would be sufficiently difficult for an adult to operate, thus causing adults to resort to less safer methods of producing fire, such as matches. The end result would be that the more stringent state standard would stand as an obstacle to the accomplishment of the federal objective of producing for the adult consumer a usable lighter which was yet as child-resistant as feasible for children five years of age and younger. If we were to adopt the Friths’ standard of requiring lighters to be designed in such a way as to prevent even so much as a spark from being produced by the lighter when in the hands of a ten-year-old child, we would be adopting a state law which would no doubt undermine and frustrate the federal objective and thus conflict with federal law. This we refuse to do.

CONCLUSION

¶ 18. For the foregoing reasons, the circuit judge in this case was eminently correct in his federal preemption analysis which caused him to conclude that the Friths’ child-resistant standard conflicted with federal safety objectives and standards and that the Friths’ state law claims were thus preempted by federal law. The Court of Appeals erred in concluding otherwise. Our decision today is consistent with our previous pronouncement in Cooper and the United States Supreme Court’s decision in Geier.

¶ 19. Accordingly, we reverse the judgment of the Court of Appeals and affirm the grant of summary judgment and entry of a final judgment in favor of BIC by the Scott County Circuit Court.

¶ 20. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE TRIAL COURT IS AFFIRMED.

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

        . We also find pertinent the following provisions of 58 Fed.Reg. 37554, at 37578:
      The child-resistant lighter test results clearly support the feasibility of an acceptance criteria of 85 percent. The data do not support the feasibility of an acceptance criteria of 100 percent. A lighter that no child under 5 could operate would be very difficult for adults to operate as well. In order for child-resistant lighters to address the risk of injury most effectively, adults must be willing to use them. If adults are unable to use child-resistant lighters, they may switch to available non-child resistant lighters.


source: Caselaw Access Project

author: SMITH, Presiding Justice,

license: Public Domain

text:
    In the Matter of the Extension and Enlarging of the Boundaries of the CITY OF LAUREL, Mississippi: Randy Chesney and the City of Laurel, Mississippi.
    No. 2002-AN-01805-SCT.
    Supreme Court of Mississippi.
    Jan. 15, 2004.

      Justin Miller Cobb, Norman Gene Hort-man, Laurel, Jerry L. Mills, Ridgeland, Leslie Pettis Barry, attorneys for appellants.
   SMITH, Presiding Justice,

for the Court.

¶ 1. The City of Laurel (hereinafter the “City”) adopted an annexation ordinance on April 2, 2002, seeking to annex a parcel of land in Jones County, Mississippi. Randy Chesney, the owner of a convenience store located on a one-acre tract, requested the annexation of his property (the “Chesney tract”). In order to reach Ches-ney’s property, it is necessary to travel a few hundred feet along Mississippi Highway 15. In addition to annexing Ches-ney’s property the City sought to annex an area which follows the right-of-way of Highway 15 from the existing city limits to the Chesney tract. The City contends that the area sought for annexation is contiguous as it follows the right-of-way of Highway 15 from the existing city limits to the Chesney tract.

¶ 2. The City filed its petition seeking approval of the annexation by the Jones County Chancery Court. A hearing for the proposed annexation was set, and proper notice was posted in six public places within the proposed annexation area as well as published three times in The Laurel Leader Call, the local newspaper. At the beginning of the hearing, without considering any evidence on reasonableness, the chancellor announced that the annexation could not proceed. His decision was made from a “standpoint of a question of law, without regard to the facts” and based on annexation statutes and common law. The chancellor refused to allow the City to use the right-of-way “owned by the State of Mississippi” to make “pockets of territory outside the city limits” contiguous. The chancellor further explained that such use of a right-of-way could result in improper annexation of property all over the county, either voluntarily or involuntarily. The chancellor entered judgment dismissing the City’s petition, and the City appeals.

¶ 3. The City argues that the chancellor erred in concluding that the right-of-way cannot be used to make a parcel of property contiguous to a municipality for annexation purposes. Further, the City contends that the chancellor erroneously ignored the fact that annexation was sought for both the Chesney property and the highway itself. The City points to the fact that the highway tract is contiguous and adjacent to both the city limits and the Chesney tract. According to the City, adjacency is determined by the entire tract, not separate parcels.

¶ 4. The general statutory guidelines for extension of municipal boundaries are found in Miss.Code Ann. § 21-1-27 (Rev. 2000), which provides in pertinent part:

When any municipality shall desire to enlarge or contract the boundaries thereof by adding thereto adjacent unincorporated territory or excluding therefrom any part of the incorporated territory of such municipality, the governing authorities of such municipality shall pass an ordinance defining with certainty the territory proposed to be included in or excluded from the corporate limits, and also defining the entire boundary as changed. In the event the municipality desires to enlarge such boundaries, such ordinance shall in general terms describe the proposed improvements to be made in the annexed territory, the manner and extent of such improvements, and the approximate time within which such improvements are to be made; such ordinance shall also contain a statement of the municipal or public services which such municipality proposed to render in such annexed territory,

(emphasis added). In this case, the City has sought to annex two parcels of land which form a single parcel of land contiguous to the current City limits. One part consists entirely of a highway right-of-way with an existing highway which is in use. The other is a parcel of land adjacent to that highway. The City contends that taken as a single tract, the area sought to be annexed is both adjacent and contiguous to the city limits.

STANDARD OF REVIEW

¶ 5. In reviewing appeals involving annexation, this Court recognizes annexation as a function of the Legislature. Prestridge v. City of Petal, 841 So.2d 1048, 1051 (Miss.2003); Extension of the Boundaries of the City of Ridgeland v. City of Ridgeland, 651 So.2d 548, 553 (Miss.1995). Therefore, our standard of review is limited to a single question, whether the annexation is reasonable. See Enlargement and Extension of Mun. Boundaries of City of Madison v. City of Madison, 650 So.2d 490, 493 (Miss.1995). A chancellor’s determination that annexation is either reasonable or unreasonable is reversed only when it is manifestly erroneous or unsupported by substantial credible evidence. In Re the Enlargement and Extension of the Municipal Boundaries of the City of Biloxi, 744 So.2d 270, 277 (Miss.1999) (citing McElhaney v. City of Horn Lake, 501 So.2d 401, 403 (Miss.1987); Extension of Boundaries of City of Moss Point v. Sherman, 492 So.2d 289, 290 (Miss.1986); Enlargement of Boundaries of Yazoo City v. City of Yazoo City 452 So.2d 837, 838 (Miss.1984); Extension of Boundaries of City of Clinton, 450 So.2d 85, 89 (Miss.1984)).

¶ 6. We refer to the findings of the trial court when faced with conflicting yet credible evidence. Bassett v. Town of Taylorsville, 542 So.2d 918, 921 (Miss.1989). When evidence is conflicting but credible, those findings may not be disturbed unless those findings are manifestly wrong, given the weight of the evidence. Id. Reversal is warranted only when the chancery court has employed erroneous legal standards or this Court has a “firm and definite conviction that a mistake has been made.” Id.

¶ 7. When confronted with rulings on questions of law, the deferential “manifest error/substantial evidence” rule which is ordinarily applied is not proper. In re Extension of Boundaries of City of Hattiesburg, 840 So.2d 69, 77 (Miss.2003). In the Hattiesburg ease, the chancellor was obviously dealing with questions of law when he granted the City’s amendments to the proposed property annexation and denied the opposing motion to dismiss the case because of the alleged errors in the legal descriptions. Id.

¶ 8. This case is similar as it involves the question of law on which the chancellor based his refusal to consider reasonableness of the proposed annexation basing his decision on the City’s failure to meet the perceived statutory requirement that proposed property be contiguous to the municipality seeking annexation. As in the Hattiesburg case, this Court is not prevented from conducting a de novo review of the chancellor’s actions on a question of law. Id. (citing Holliman v. Charles L. Cherry & Assocs., Inc., 569 So.2d 1139, 1145 (Miss.1990)); Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1028 (Miss.1990).

DISCUSSION

¶ 9. The question of whether a state highway and its right-of-way connected to another parcel of land, (Chesney Tract) sought to be annexed, is adjacent to and contiguous property to the current City of Laurel boundaries is not difficult to ascertain. Adjacency is determined by the entire tract proposed to be annexed. Taken as a single tract, the two parcels sought to be annexed are both adjacent and contiguous to the City.

¶ 10. Whether this proposed annexation is reasonable or not is the ultimate question. Thus, the real determinative issue squarely confronting us is whether the chancellor must conduct a full hearing allowing for evidence and testimony and utilizing the indicia of reasonableness factors to determine if the proposed annexation is to be allowed. We conclude that he must do so.

¶ 11. The role of the judiciary in annexations is limited to determining whether a proposed annexation is reasonable. In re Extension of Boundaries of City of Hattiesburg, 840 So.2d at 81; Matter of Enlargement and Extension of the Mun. Boundaries of the City of Jackson, 691 So.2d 978, 980 (Miss.1997); In re Extension of Corporate Boundaries of the Town of Mantachie 685 So.2d 724, 726 (Miss.1996); Enlargement and Extension of Mun. Boundaries of City of Madison v. City of Madison, 650 So.2d 490, 494 (Miss.1995); Matter of Extension of Boundaries of City of Columbus, 644 So.2d 1168, 1171 (Miss.1994). The duties of the chancellor arise only after municipal authorities define and fix the boundaries of territory to be annexed, the proposed ordinance passes, and the municipality presents a petition of that ordinance to the court for a determination of its reasonableness. Id. The judicial function is to determine the reasonableness of the ordinance. Id. The chancellor has no power to define the boundaries of a proposed annexation. Id. We have inferred that a municipality seeking the annexation does not have to prove that every square inch of the proposed area was legally proper for annexation. Luter v. Hammon, 529 So.2d 625, 630 (Miss.1988). In fact, as a practical matter, courts certainly have the authority to authorize annexation of less than all of the proposed territory. Id. (citing In re Extension of Boundaries of City of Biloxi, 361 So.2d 1372, 1374-75 (Miss.1978)). The chancellor does not have power to enlarge a proposed annexed territory. Ritchie v. City of Brookhaven, 217 Miss. 860, 65 So.2d 436, 441 (1953). The only power vested in the court is in the determination of the reasonableness or unreasonableness of an enlargement and whether it should be reduced. Miss.Code Ann § 21-1-33 (2001). The judiciary’s power to modify a proposed enlargement arises only where in consideration of all of the evidence, the chancellor finds a reduction is necessary as some part of the proposed annexed territory is unreasonable.

¶ 12. Recently, this Court has been asked to assume the role of a “super-legislature” by striking down Miss.Code Ann. § 21-1-27, the annexation statute, as unconstitutionally vague. In re Extension of Boundaries of City of Hattiesburg, 840 So.2d at 97. The objectors there described the vagueness of this Court’s standard of “reasonableness” and characterized as defying definition, giving no guidance to the opponents or proponents of annexation, elusive and nebulous. Id. We responded to that charge with the assertion that the annexation statute merely provides for the procedures a city must undertake to annex property. Id. This Court refused to “strike down this statute as unconstitutional, reversing countless cases and calling into question the boundaries of most of the municipalities of the state.” Id This Court found it logically impossible for the judicially created “reasonableness” test to render the annexation statute unconstitutional for vagueness, as the test is not included in the statute. Id. at 98. Further, although ease of annexation may be allowed by our interpretation, the Mississippi Legislature is the proper avenue for making the “reasonableness” test less “nebulous.” Id. We have expressed understanding of the fact that annexation litigation often arouses the emotions of those affected. Id. However, it is the duty of this Court to keep in mind that in annexation cases, we must be guided by the limited scope of judicial review and our well-established ease law. Id. We conclude that the chancellor here erred in failing to proceed with evidence and testimony to determine ultimately whether the proposed annexation of the Chesney tract and the connecting corridor consisting of a public highway and adjacent right-of-way was reasonable or not.

CONCLUSION

¶ 13. The chancellor must determine the reasonableness of the annexation of Chesney’s property and the state highway and adjacent right-of-way. We express no opinion or view on reasonableness or unreasonableness of the city’s attempt to annex this property. Accordingly, we reverse the judgment below and remand this case to the chancellor with instructions to proceed on the merits with a full hearing to determine whether the proposed annexation is reasonable. Miss.Code Ann. § 21-1-33 (Rev.2001); In re Extension of Boundaries of City of Hattiesburg, 840 So.2d 69, 81 (Miss.2003).

¶ 14. REVERSED AND REMANDED.

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


author: WALLER, Presiding Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Walter W. TEEL.
    No. 2003-JP-01263-SCT.
    Supreme Court of Mississippi.
    Jan. 15, 2004.

      Luther T. Brantley, III, Darlene D. Ballard, Jackson, attorneys for appellant.
    Walter W. Teel, attorney for appellee.
   WALLER, Presiding Justice,

for the Court.

¶ 1. The Mississippi Commission on Judicial Performance has recommended that former Chancery Judge Walter W. Teel of the Eighth Chancery Court District be publicly reprimanded and assessed costs for his failure to pay office-related charges to vendors after submitting and being reimbursed for those charges by the State of Mississippi. We adopt the Commission’s recommendation to publicly reprimand Judge Teel, but not its recommendation to assess costs from two separate inquiries.

FACTS AND PROCEDURAL HISTORY

¶ 2. From July 1999 to November 2000, Judge Teel made a total of $3,218.48 in charges to local Gulfport vendors for miscellaneous office purchases. These purchases were charged to an account known as the “Eighth Chancery Court District Account.” The Account was established to allow the Eighth District chancery judges and their staff to purchase items on credit. It was an admittedly fictitious entity, and any item purchased using this account was the obligation of the chancery judge who incurred the charge. The items ordered were billed to this account and sent to the Court Administrator for the District. The Court Administrator would collect from the judge who made the charge and pay the vendor through the account. It was the charging judge’s responsibility to seek reimbursement from the State after he paid the Court Administrator.

¶ 3. Judge Teel refused to pay the administrator for the charges in question. Nonetheless, he sought reimbursement from the State for items he never paid for. He deposited the reimbursements into his personal bank account but did not pay the court administrator per the local procedure or the vendors until he was notified of an investigation by the State Auditor and Attorney General in 2001.

¶ 4. On December 6, 2001, Judge Teel was indicted in the Circuit Court of the Second Judicial District of Harrison County and charged with embezzlement for the same acts at issue here. A formal complaint (Inquiry No.2001-277) was filed by the Commission on January 2, 2002. On June 13, 2002, Judge Teel was found not guilty on all counts in the criminal case. The Commission dismissed Inquiry No.2001-277 on July 31, 2002. On September 11, 2002, the Commission filed the present Complaint (Inquiry No.2002-195), alleging the same conduct that prompted the indictment and Inquiry No.2001-277. After a hearing, the Commission determined that Judge Teel’s conduct violated Canons 1, 2A, 2B, 3B(1), and 5C(1) of the Code of Judicial Conduct of Mississippi Judges. Further, the Commission found that his behavior constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute in violation of Article 6, Section 177A of the Mississippi Constitution of 18.90, as amended. The Commission recommended that Judge Teel be publicly reprimanded and assessed costs for Inquiry No.2002-195 ($440.69). The Commission further assessed costs for the previous Inquiry No.2001-277 ($1,746.78). Judge Teel disputes the assessment of costs for Inquiry No.2001-277 and the public reprimand of Inquiry No.2002-195. He does not contest the imposition of costs for Inquiry No.2002-195.

STANDARD OF REVIEW

¶ 5. We review judicial disciplinary matters de novo. Miss. Comm’n on Judicial Performance v. Hartzog, 822 So.2d 941, 943 (Miss.2002). In judicial misconduct proceedings this Court is the trier of fact and has the sole power to impose sanctions. Miss. Comm’n on Judicial Performance v. Neal, 774 So.2d 414, 416 (Miss.2000); see also In re Quick, 553 So.2d 522, 527 (Miss.1989); In re Garner, 466 So.2d 884, 885 (Miss.1985). Although this Court is not bound by the findings and recommendations of the Commission and may impose additional sanctions, it nonetheless gives great weight to the findings of the Commission which had the opportunity to observe the demeanor of the witnesses. Neal, 774 So.2d at 416; see also Miss. Comm’n on Judicial Performance v. Whitten, 687 So.2d 744, 746 (Miss.1997); Miss. Comm’n on Judicial Performance v. Gunn, 614 So.2d 387, 389 (Miss.1993).

DISCUSSION

I. WHETHER JUDGE TEEL’S CONDUCT CONSTITUTES WILLFUL MISCONDUCT IN OFFICE AND CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO DISREPUTE PURSUANT TO SECTION T77A OF THE MISSISSIPPI CONSTITUTION OF 1890, AS AMENDED?

¶ 6. The Court is authorized to sanction judges for “willful misconduct in office ... willful and persistent failure to perform his duties ... or ... conduct prejudicial to the administration of justice which brings the judicial office into disrepute .... ” Miss. Const, art. 6, § 177A. “Willful misconduct is the improper or wrongful use of the power of his office by a judge acting intentionally, or with gross unconcern for his conduct, and generally in bad faith.” In re Anderson, 412 So.2d 743, 745 (Miss.1982), quoting In re Peoples, 296 N.C. 109, 250 S.E.2d 890, 918 (1978).

[Willful misconduct] involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith ...

Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute.

In re Anderson, 412 So.2d at 745. “Furthermore, [the] misconduct does not have to be embedded in any form of bad behavior because ‘ignorance and incompetence, not amounting to bad faith behavior in a manner prejudicial to the administration of justice, bring the judicial office into disrepute.’ ” In re Quick, 553 So.2d 522, 527 (Miss.1989), quoting In re Stewart, 490 So.2d 882, 884 (Miss.1986). This Court can generally recognize examples of willful misconduct when presented for review. Anderson, 412 So.2d at 752.

¶ 7. Here, Judge Teel filed for reimbursement for bills that he never paid. Instead of paying the various vendors when he was reimbursed, he deposited the funds into his personal bank account. He did not pay the vendors that were owed until after he was notified of an investigation into his payment practices by the State Auditor and Attorney General.

¶ 8. While Judge Teel takes full responsibility for not timely paying the bills in question, he claims he did not willfully or intentionally do anything to cause disrespect to the judiciary. He claims he did not pay the bills because his wife’s illness and his duties as a judge were more than he could mentally or emotionally handle. He states that his wife was extremely ill at the time in question, he was her primary care giver, and their medical expenses were staggering. While these facts are understandably stressful, they do not excuse the conduct at issue here.

¶ 9. Based on these facts, we adopt the Commission’s recommendation and conclude that Judge Teel’s actions constituted willful misconduct and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

II. WHETHER JUDGE TEEL SHOULD BE PUBLICLY REPRIMANDED PURSUANT TO SECTION 177A OF THE MISSISSIPPI CONSTITUTION OF 1890, AS AMENDED, AND ASSESSED COSTS OF BOTH PROCEEDINGS?

¶ 10. The sanctions available to this Court are: (1) removal from office; (2) suspension from office; (3) fine; and (4) public censure or reprimand. Miss. Const, art. 6, § 177A. Sanctions should be consistent with the offense and similar to like cases. Miss. Comm’n on Judicial Performance v. Carr, 786 So.2d 1055, 1059 (Miss.2001), citing In re Bailey, 541 So.2d 1086, 1039 (Miss.1989). “The sanction should recognize the misconduct, deter and discourage similar behavior, preserve the dignity and reputation of the judiciary and protect the public.” Miss. Comm’n on Judicial Performance v. Sanders, 708 So.2d 866, 878 (Miss.1998).

(a) Public Reprimand

¶ 11. The Commission recommended a public reprimand and assessment of costs. In determining whether to issue a public reprimand, the Court weighs the factors listed in In re Baker, 535 So.2d 47, 54 (Miss.1988) and Miss. Comm’n on Judicial Performance v. Walker, 565 So.2d 1117, 1124 (Miss.1990):

(1) The length and character of the judge’s piMic service. Judge Teel served four years as a Chancery Court Judge. He served as a municipal court judge prior to serving as Chancellor.
(2) Positive contributions made by the judge to the courts and the community. The Commission found nothing on this issue.
(3) The lack of prior judicial precedent on the incident in issue. The Commission found no case law that deals directly with the present situation where there is a public expense with personal liability, with reimbursement paid in trust for the payment of the public expense. It suggests that the present case is analogous to attorney misuse of trust funds. In Cotton v. The Mississippi Bar, 809 So.2d 582 (Miss.2000), an attorney was disbarred when he received a settlement check that was to be applied to his client’s medical bills but did not pay the client’s bills for more than five months.
(4) Commitment to fairness and innovative procedural form on the part of the judge. The Commission found nothing on this issue.
(5) The magnitude of the offense. The Commission found that Judge Teel’s misappropriation of the reimbursement he received is serious because it cast doubt upon the integrity of the entire judiciary.
(6) The number of persons affected. The Commission found that numerous vendors were affected by Judge Teel’s refusal to pay the accounts due even after he was reimbursed. In the Agreed Statement of Facts there are eighteen different instances where he did not pay eight different vendors.
(7) Whether “moral turpitude” was involved. The Commission did not find moral turpitude to be involved.

¶ 12. Based on an analysis of these factors, we find a public reprimand appropriate. See Miss. Judicial Performance Comm’n v. Cantrell, 624 So.2d 94 (Miss.1993) (justice court judge was publicly reprimanded for, inter alia, his failure to pay a single personal debt).

(b) Costs

¶ 13. Costs of a formal hearing before the Commission on Judicial Performance are assessed to the judge who is the object of the hearing when he is found in violation of the Code of Judicial Conduct. Miss. Comm’n on Judicial Performance v. Russell, 724 So.2d 873, 874 (Miss.1998). Rule 10(e) of the Rules of the Commission on Judicial Performance states “[t]he Supreme Court may accept, reject, or modify, in whole or in part, the findings and recommendation of the Commission.” This Court assesses costs when the complaining party has notice that costs are being sought. Russell, 724 So.2d at 874.

We find the assessment of such costs is within the discretion of this Court, is in keeping with the precedent of this Court, and is reasonable where the complaining party is on notice that such costs are being sought and where the behavior of the complaining party is the reason for the incurring of the cost.

Id. (emphasis added).

¶ 14. In its Findings of Facts and Recommendations, the Commission recommended Judge Teel be assessed all costs in Inquiry No.2002-195, which he does not dispute. He disputes the recommendation of assessment of costs associated with Inquiry No.2001-277, which resulted in his suspension from February 21, 2002, until August 6, 2002. He argues that he should not be assessed costs for Inquiry No.2001-277 because it was a separate inquiry and he did not contest the suspension and entered into a consent decree regarding the suspension. He also states that once he was found not guilty on the criminal charges he was fully reinstated and the complaint in Inquiry No.2001-277 was dismissed.

¶ 15. Judge Teel’s conduct caused both inquiries. Both inquires are because of his manipulation of the reimbursement process. Both inquiries are based upon the same facts and circumstances, but No. 2001-277 was dismissed by the Commission. As Judge Teel never contested his suspension under No.2001-277 and the Commission dismissed the complaint, there is no basis to award costs for Inquiry No.2001-277. Costs for 2002-195 are assessed in the amount of $440.69.

CONCLUSION

¶ 16. This Court finds that Judge Teel’s actions constitute willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, in violation of Article 6, Section 177A of the Mississippi Constitution of 1890. This Court also adopts the recommendation of the Commission to reprimand publicly Judge Teel, in the form and manner provided by law, and assess costs of $440.69 for Inquiry No.2002-195. We deny the Commission’s request to assess costs for Inquiry No.2001-227.

¶ 17. WALTER W. TEEL, FORMER CHANCERY JUDGE OF THE EIGHTH CHANCERY COURT DISTRICT, IS HEREBY ORDERED TO BE (1) PUBLICLY REPRIMANDED BY THE SENIOR JUDGE OF THE EIGHTH CHANCERY COURT DISTRICT FOR WILLFUL MISCONDUCT AND CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE THAT BRINGS THE JUDICIAL OFFICE INTO DISREPUTE AND (2) PAY THE COSTS OF THIS PROCEEDING IN THE AMOUNT OF $440.69.

PITTMAN, C.J., SMITH, P.J., COBB, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ AND EASLEY, JJ., NOT PARTICIPATING.

      . Judge Teel served in office from January 1, 1999, until December 31, 2002.

      . Canon 1: A judge should uphold the integrity and independence of the judiciary.

        Canon 2: A judge should avoid impropriety and the appearance of impropriety in all his activities.
      A. A judge should' respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
      B. A judge should not allow his family, social or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interest of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.

        Canon 3: A judge should perform the duties of his office impartially and diligently-
      B. Administrative Responsibilities
      (1) A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.

        Canon 5; A judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties.
      C. Financial Activities
      (1) Judges should refrain from financial and business dealings that tend to reflect adversely on their impartiality, interfere with the proper performance of their judicial duties, exploit their judicial positions, or involve them in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.


author: CHANDLER, J„

text:
    Jon C. McCOY d/b/a McCoy Homes, Appellant, v. Phil GIBSON and Penny Gibson, Appellees.
    No. 2001-CA-01700-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2003.
    Rehearing Denied Jan. 20, 2004.

      Paul E. Rogers, Jackson, attorney for appellant.
    Sheldon G. Alston, Jackson, attorney for appellee.
    Before MCMILLIN, C.J., MYERS, and CHANDLER, JJ.
   CHANDLER, J„

for the Court.

¶ 1. This action involves a contract under which Jon C. McCoy d/b/a McCoy Homes (McCoy) was to construct a home for Phil and Penny Gibson (the Gibsons). Following a bench trial on August 10, 2001, the chancery court found that McCoy breached the contract and awarded the Gibsons $18,046.79 in damages. McCoy appeals asserting a single issue: whether the Gib-sons proved by a preponderance of the evidence that they incurred $18,046.79 in damages from McCoy’s breach of contract. Finding no error, we affirm.

STATEMENT OF THE CASE

¶ 2. McCoy and the Gibsons entered into a contract under which McCoy would supervise construction of the home, and receive a flat fee of $18,500 upon completion of construction. Disagreement arose between the parties over McCoy’s job performance. McCoy discontinued his duties, and the Gibsons withheld payment. On March 22, 2000, McCoy filed a statutory notice of construction lien for $18,500 with the chancery clerk of Rankin County. Subsequently, the Gibsons filed a complaint for breach of contract in the Rankin County Chancery Court. McCoy filed a counterclaim asserting that he had substantially complied with the contract, and that the Gibsons were liable for damages for, inter alia, repudiating the contract. McCoy then extinguished the construction lien prior to the trial. The chancery court found for the Gibsons and dismissed McCoy’s counterclaim with prejudice.

DISCUSSION

¶ 3. The standard of review employed applicable to a chancery court’s decision is abuse of discretion. McNeil v. Hester, 753 So.2d 1057(1121) (Miss.2000). A chancery court’s findings of fact will not be disturbed upon review unless the chancery court was manifestly wrong, clearly erroneous or applied an incorrect legal standard. Miller v. Pannell, 815 So.2d 1117(¶ 9) (Miss.2002).

¶ 4. In this case, there is no question that an enforceable contract existed. However, McCoy contends that the chancery court erred in finding both that he had breached the contract by performing substandard work, and that the Gibsons had suffered $18,046.79 in damages.

I. BREACH

¶ 5. Material breach is “a failure to perform a substantial part of the contract or one or more of its essential terms or conditions, or if there is such a breach as substantially defeats its purpose.” Gulf South Capital Corp. v. Brown, 183 So.2d 802, 805 (Miss.1966). The plaintiff bears a burden of proof by a preponderance of the evidence in an issue of material breach. Harrison v. McMillan, 828 So.2d 756(¶ 34) (Miss.2003).

¶ 6. Bill Brandon, a building official from Rankin County, was certified as an expert in home construction. Brandon inspected the home and testified to “substandard” construction. On appeal, McCoy contends that Brandon’s inspection was a “premature inspection,” and that had McCoy been allowed to complete performance under the contract, the construction would not have been substandard. The record shows that Brandon addressed that matter at trial in the following manner:

[A]ll the items [defects listed in a report] are significant. The context to me— what scared — there was a lot of things worrying me; the framing was worrying me; the structural integrity was worrying me. The attic had to be totally reframed or rebraced. The cornice, the outside cornice work had to be reworked — all of that worried me, and all of it concerned me.... An electrical box at the entrance, understanding that I’m getting there early, I was just trying to add context — I’m sorry. All of this worried me, and I understand where you’re going as well. It’s early — it was an early inspection. Now where do we draw the line? I would draw the line on all the structural items that are mentioned on this list — the foundation work, the framing work, the bracing work. The cornice work is not a structural item, but I could see that it was going to take a bit of time to go back and work— it was just simply waving, okay?

Additionally, the evidence included approximately twenty-five photographs of structural work asserted to be defective.

¶ 7. There is no argument advanced by the appellant that the chancery court applied the incorrect law or legal standard. The finding that McCoy breached his duty to perform the construction in a “workmanlike” manner is well supported by the evidence. Therefore, there are no grounds to disturb the chancery court’s decision. This issue is without merit.

II. DAMAGES

¶ 8. An award of damages may not be based upon speculation, but must be proven by a preponderance of evidence. Courtney v. Glenn, 782 So.2d 162 (¶ 16) (Miss.Ct.App.2001). In this case, McCoy contends that the award was based upon “conjecture.” However, the record shows that the chancery court heard the testimony of Phil Gibson. Mr. Gibson testified to the photographs tending to show substandard construction. Mr. Gibson additionally testified to a “registry” or summary of expenses he had paid for various materials and services. This summary was thirteen pages in length and each page listed by date, amount and vender approximately fifteen payments. The chancery court’s findings of fact show that the chancellor did not award damages for costs incurred by the Gibson’s after June 12, 2001, which was the date Brandon testified he found the home to pass inspection. The record shows that the chancellor only awarded damages for what he found to be substandard work that was in breach of the contract. There is no suggestion that the chancery court failed to apply the correct law. The record contains substantial evidence showing the calculation of damages was not speculative, but based upon testamentary and documentary evidence. There are no grounds to disturb the chancery court’s decision. This issue is without merit.

¶ 9. THE JUDGMENT OF THE RANKIN COUNTY CHANCERY COURT IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: THOMAS, J.,

text:
    Tamika Shante REED, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01316-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.

      Patsy Ann Bush, Hazlehurst, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Tamika Shante Reed was tried and convicted of the murder of her former boyfriend by a Copiah County jury. Aggrieved, Reed asserts two errors by the lower court:

I. THE TRIAL COURT ERRED IN ADMITTING HEARSAY TESTIMONY INTO EVIDENCE WHICH RESULTED IN JURY VERDICT BASED UPON PASSION AND BIAS NOT ON EVIDENCE AND LAW.

II. THE TRIAL COURT ERRED IN FAILING TO GRANT JUDGMENT NOTWITHSTANDING THE VERDICT OR ALTERNATIVELY FOR A NEW TRIAL AS VERDICT WAS AGAINST OVERWHELMING WEIGHT OF CREDIBLE EVIDENCE.

¶ 2. Finding no error, we affirm the conviction.

FACTS

¶3. Tamika Reed and Willie Hart, Jr. had dated for some years prior to 2001. By the fall of 2001, however, the relationship had ended. There had been several incidents of violence between the two in the past. In June 2000, Reed assaulted Hart with a knife and was detained by police in the incident although she was apparently not arrested or otherwise charged. Reed had pressed assault charges against Hart for two separate events.

¶ 4. A hearing on one of the assault charges was scheduled for November 7, 2001, but was continued until the following month. In the early morning of November 8, 2001, Reed rode her bicycle to the home of a friend, Kwaundra Lopez. During the course of this visit, Lopez asked Reed if she intended to let authorities deal with Hart. Reed replied that she did not, she was going to kill Hart. Reed had a pistol on her person at the time she made this statement to Lopez. Reed left soon thereafter. As she was leaving, Reed stopped Troy Harris, a city water department employee, on the street and asked for a ride “uptown.” Harris was unable to oblige and Reed left on the bicycle.

¶ 5. Another woman, LeAnna Collins, was present in the Lopez home at the time of this conversation but did not hear it. Lopez repeated the conversation with Reed to Collins, including the fact that Reed had a gun. Collins urged Lopez to call Reed’s mother. Reed’s mother called the police and asked them to look for her daughter although the stated reason was concern for Reed’s health as she was riding a bicycle while pregnant.

¶ 6. Not long after leaving the Lopez home, Reed encountered Hart as he was exiting the home of his new girlfriend. A coworker of Hart’s, Robert McGowan, was present and standing beside his parked truck with Hart when Reed approached. McGowan stated Reed pulled out the gun as she approached the truck and Hart. Reed and Hart then exchanged words and Reed shot Hart twice, killing him. Reed fled the scene but was quickly apprehended by police and arrested. At trial, Reed testified that she had not intended to shoot Hart but rather to shoot around him in an effort to frighten him away. She stated that she was afraid of Hart because of their history and he was coming towards her with the intent to take away the gun and, presumably, to use it on her, so she fired.

ANALYSIS

1. Evidentiary rulings

¶ 7. Although Reed’s first assignment of error mentions hearsay, this issue on brief actually lists a plethora of evidentiary rulings. She argues the following testimony should not have been allowed:

(1) Darryl Wilson and Robert McGowan, coworkers of Hart, testified Hart had received a telephone call from Reed at work on November 7. Hart told them Reed had threatened to kill him and then fired a gun. Reed objected to this testimony as hearsay. The prosecution argued the testimony was permissible to show Hart’s state of mind. The objection was overruled as an exception to the hearsay rule under Mississippi Rule of Evidence 803(1), (2) or (3). The trial court did not specify which of these exceptions best fit the facts so we assume they all were found applicable.

(2) Seth McClendon was called as a rebuttal witness. He testified he was present during a prior altercation between Reed and Hart and that Reed was the unprovoked aggressor, attacking Hart in a liquor store parking lot after following them from their mutual place of employment. McClendon also testified Reed would often call Hart at work or come to the place of employment and hide across the street, watching Hart. Reed made one objection during this testimony, to the statement by McClendon that Hart had not wanted to get out of the car at the liquor store because he was afraid Reed was going to try and harm him. No ground for the objection was given but it was sustained.

(3) Chad Seales, an officer with the Copiah County Sheriffs Department, testified on rebuttal that he had been called to the home of Willie Hart, Sr. in June 2000 after Reed assaulted Hart Jr. at his father’s home with a knife and blocked the driveway with a car. Reed objected to this testimony as irrelevant and remote in time but the objection was overruled. Reed also objected to the officer’s attempt to repeat what Hart had told him at the time of the incident on the ground of hearsay. This objection was sustained.

(4) Kathy Nash was a eoworker of Hart and testified Reed would call and come by the place of business repeatedly until Nash had to tell her to cease. Reed made one objection during this testimony to the question of how Hart had received certain injuries Nash had seen on him. No ground for the objection was given but it was sustained and the question went unanswered.

(5) LeAnna Collins testified that Reed had come to the house twice on the morning of November 8, 2001, but Lopez was not home on the first occasion. Reed objected on the ground of improper rebuttal; Reed had not testified as to the number of times she attempted to reach Lopez that morning. The objection was overruled. Collins also testified as to the conversation repeated to her by Lopez that Reed intended to kill Hart and she had a gun. Reed objected to this as well, on the ground of hearsay. This objection was also overruled.

¶ 8. With respect to the testimony of Seth McClendon and Kathy Nash, the only objections made by Reed, although with no stated grounds, were sustained. There is, thus, no error for appellate review. Smith v. State, 724 So.2d 280, 315 (¶ 137) (Miss.1998). Of the objections to the testimony of Chad Seales, one was sustained and the other, that the incident related was irrelevant and too remote in time, is not the same ground pressed upon appeal. Reed now argues the testimony was improper rebuttal evidence of a prior bad act. Having chosen her ground for objection at trial, Reed waives all other possible grounds for objection on appeal. Carter v. State, 722 So.2d 1258, 1262 (¶ 13) (Miss.1998).

¶ 9. In her brief to this Court, Reed argues the testimony of Wilson and McGowan regarding the telephone call to Hart was irrelevant because Hart’s state of mind was irrelevant. At trial, the court specifically asked Reed whether the ground of her objection was relevance or hearsay and Reed chose hearsay. She could have objected upon both grounds but she did not. We will not now entertain the claim of irrelevance as it was also waived at trial.

¶ 10. Reed also appears to argue in her brief that the testimony should have been excluded as a prior bad act. Reed had filed a pre-trial motion in limine to exclude all prior bad acts but the court elected to rule upon each objection as made at trial rather than upon the motion. Reed argues that because the court knew of the motion in limine, it should have excluded the evidence on that basis as the ground was obvious even though she did not ever actually make such an objection.

¶ 11. A general objection is sufficient to preserve an issue for appeal when, in context, the basis - for the objection is apparent. Id. at 1261-62 (¶ 13). The court made apparent that it would rule on prior bad acts testimony as objections were made. Reed was thus aware she had to make such objections. She did not do so. Nor was it readily apparent from the context she intended to make an objection based upon the arguments of the motion in limine. It is even less apparent in light of her explicit statement that her basis for objection was hearsay. Hearsay is thus the only objection potentially reviewable by this court.

¶ 12. At first blush, Reed appears to be renewing her hearsay objection to the testimony but upon closer review, she is not. Significant discussion is given to the prejudicial effect Reed may have suffered because the jury could have inferred from the testimony of these two witnesses that she had a deliberate design to kill Hart. She quotes case law to the effect that substantial evidence of a material fact erroneously admitted in violation of the hearsay rule denies a defendant a fair trial. Hall v. State, 539 So.2d 1338, 1348 (Miss.1989).

¶ 13. While Reed correctly discusses the remedy for erroneously admitted hearsay evidence, she skips an important first step- — demonstrating the evidence was, in fact, admitted erroneously. Not all hearsay is inadmissible. Numerous exceptions to the hearsay rule may apply. M.R.E. 803 and 804. The mere admission of hearsay is not reversible error when it falls within one of these exceptions, as the State argued at trial and the court agreed were applicable.

¶ 14. However, beyond noting the court found an exception applicable, Reed offers no argument in law or fact that the exception was erroneously granted. Reed concentrates solely upon the prejudice she suffered from damning evidence without once mentioning in what manner the trial court abused its discretion in admitting the testimony. Reed would have us merely assume error from the fact that hearsay evidence harmful to her defense was admitted. This we cannot do.

¶ 15. Reed also argues that a sua sponte jury instruction limiting the use of this testimony should have been given. Failure to give a sua sponte limiting instruction on prior bad acts offered under Mississippi Rule of Evidence 404(b) may be reversible error. Bounds v. State, 688 So.2d 1362, 1372 (Miss.1997). However, the evidence was not offered for that reason, but rather to show Hart’s state of mind under Mississippi Rule of Evidence 803 and that limiting instruction rule is therefore not applicable. Reed did not ask for any limiting instruction and provides us with no authority that a sua sponte instruction should have been given under the circumstances. We therefore decline to review this assertion further. Simmons v. State, 805 So.2d 452, 487 (¶ 90) (Miss.2001).

¶ 16. Finally, we address the objections to the testimony of LeAnna Collins. In her brief, Reed states “the same law and arguments apply to this testimony as the law and argument made in Darryl Wilson’s and Robert McGowan’s testimony and is incorporated by reference herein.” As noted above, the only actual argument made to the testimony of Wilson and McGowan is that a prior bad act should have been excluded. Collins did not testify to any prior bad acts nor did Reed object to Collins’s testimony on that ground. Again, no ruling is properly before us for review.

2. Weight and sufficiency of the evidence

¶ 17. In this second assignment of error, Reed argues the evidence was both insufficient and lacking in credibility to sustain the conviction of murder. She infers the State failed to establish the element of deliberate design to effect the death of the victim; that her own testimony disputes the evidence of intent; and the testimony of an objective witness, Troy Harris, also negated any intent on her part to kill Hart. Rather, it was an accident.

¶ 18. When reviewing a claim of insufficient evidence on appeal, we look to the evidence most supportive of the State’s case. Harrell v. State, 583 So.2d 963, 964 (Miss.1991). “All evidence supporting, or tending to support the verdict, as well as all reasonable inferences that may be drawn from the evidence, must be accepted as true.” Id. Where there is competent evidence to sustain a verdict, it will not be disturbed on appeal. Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979).

¶ 19. In this case, we have a witness, Lopez, who testified Reed stated her intention to kill Hart, and a witness to the shooting, McGowan, who saw Reed walk up to Hart without any apparent fear and armed with a weapon before Hart said or did anything that might have indicated Hart intended to harm her. Having announced her intention to kill Hart before committing the act, it was more than reasonable for the jury to find Reed carried out an intentional killing even if the actual time and place of the murder may have been coincidental. The evidence is sufficient to support the guilty verdict of murder.

¶ 20. As to the weight of the evidence, we will order a new trial only when the overwhelming weight of evidence is so contrary to a finding of guilt that the conviction was an “unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). It is the jury’s duty to weigh conflicting testimony and witness credibility. Gandy, 373 So.2d at 1045. Juries are empaneled to resolve questions of fact. We will not substitute our factual findings for that of the jury in a contest of credibility.

¶21. The jury was presented with Reed’s version of events along with the State’s witnesses. How much of Reed’s testimony was credible was a question for the jury. The evidence being what it is, we do not agree the conviction represents an unconscionable injustice.

¶ 22. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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


author: LEE, J.,

text:
    Rashad Johannson QUARLES, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01672-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.
    David 0. Bell, Oxford, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On April 14, 2000, a jury in the Circuit Court of Lafayette County found Rashad Quarles guilty of attempted sexual battery of Z.J., a female minor. Quarles was sentenced to ten years in custody of the Mississippi Department of Corrections, with three years suspended and seven to serve. Quarles now perfects his appeal to this Court asserting that the trial court erred in denying his motion for a directed verdict or a judgment notwithstanding the verdict because the evidence was insufficient to support the guilty verdict.

FACTS

¶ 2. On August 4, 1998, Quarles and Kendrick Mathis picked up Z.J. and took her to a motel room where some of their friends were already drinking and smoking marijuana. The men involved included Albert Crowley, Michael Miller, Desmond Parham, and Derrick Mitchell. These other men, including Mathis, were also charged with various crimes relating to the events that occurred in the hotel room on this particular night. After smoking marijuana, Z.J. became sleepy and fell back upon the bed. At this point, the men took off her clothes and began fondling her. The men then took turns having sexual relations with the victim. Although Z.J. could not recall exactly with whom she had sexual relations, she did remember that Quarles asked her to perform oral sex upon him. Z.J. refused this request.

¶ 3. Quarles did fondle Z.J.’s genital area while trying to achieve an erection. However, Quarles did not have sexual intercourse with Z.J. as he could not maintain his erection. Shortly after this, most of the participants left the hotel room, except for two men who stayed in order to take advantage of Z.J. again. The police were then notified of this incident and Quarles turned himself in the next day.

DISCUSSION OF ISSUE

I. WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE GUILTY VERDICT?

¶ 4. Quarles contends that the State failed to prove that he had attempted to sexually penetrate the victim. Our standard of review concerning sufficiency of the evidence is as follows: the trial judge is required to accept as true all of the evidence favorable to the State, including any reasonable inferences that may be drawn therefrom. Wall v. State, 718 So.2d 1107(¶ 15) (Miss.1998). If, under this standard, sufficient evidence to support the jury’s verdict of guilty exists, the motion for a directed verdict should be denied. Isaac v. State, 645 So.2d 903, 907 (Miss.1994). The court will reverse only when reasonable and fair-minded jurors could only find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). 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. According to Mississippi Code Annotated Section 97-3-95 (Rev.2000), “(1) A person is guilty of sexual battery if he or she engages in sexual penetration with: ... (d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.” The term sexual penetration includes “cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person’s body by any part of a person’s body, and insertion of any object into the genital or anal openings of another person’s body.” Miss. Code Ann. § 97-3-97 (Rev.2000). Attempted sexual battery becomes an offense by virtue of the two statutes just mentioned when read in conjunction with Mississippi Code Annotated Section 97-1-7 (Rev.2000), which in pertinent part provides: “Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall ... be punished .... ”

¶ 6. The crime of attempt consists of the following: “1) an intent to commit a particular crime; 2) a direct ineffectual act done toward its commission; and 3) failure to consummate its commission.” Pruitt v. State, 528 So.2d 828, 830 (Miss.1988). Quarles’ main contention is that his failure to commit sexual battery was not due to any extraneous causes; therefore, he abandoned his attempt. Quarles relies upon West v. State, 437 So.2d 1212 (Miss.1983), in support of this argument. In West, the court reversed West’s conviction of attempted sexual battery because the State failed to prove that his failure to commit the act was due to an extraneous cause. The court found that West’s failure to consummate the crime was his own decision. Id. at 1214.

¶ 7. However, we find that Quarles’ situation is distinguishable from West’s and, therefore, we find sufficient evidence to support Quarles’ conviction of attempted sexual battery. Z.J. testified that it was Quarles who asked her to get into the car with him and Mathis. Mathis testified that Quarles asked Z.J. to lie down in the back of the car and that he also asked Z.J. if “he was going to get him some sex.” Miller testified that when Quarles, Mathis, and Z.J. arrived at the hotel room, Quarles announced that Z.J. was there to have sex with them. Miller further stated that Quarles told Z.J. to get out of her clothes, that Quarles tried to get Z.J. to perform oral sex upon him, and that Quarles “was playing with her privates” while trying to maintain an erection. Crowley also testified that Quarles was leaning over the victim with his pants down, trying to maintain an erection while touching the victim in her genital area. Crowley also stated that the men in the room wanted to get Z.J. “high” on the marijuana so she would be more cooperative.

¶ 8. In Ishee v. State, 799 So.2d 70 (Miss.2001), a nine-year-old boy was approached in the grocery store by an older man asking the boy to engage in fellatio. The court upheld Ishee’s conviction of attempted sexual battery, stating that asking the boy to engage in fellatio and pointing to his penis was enough of an overt act sufficient to constitute an element of the offense. Id. at (¶ 5). Furthermore, the boy’s refusal of Ishee’s advances was considered an extraneous cause. Id. at (¶ 9). In the case sub judice, Z.J. testified that she refused to perform oral sex upon Quarles. Obviously Quarles was not satisfied with this answer and proceeded to attempt to engage in sexual intercourse with Z.J. There was testimony that another person walked into the room while Quarles was attempting to maintain his erection and took Z.J. into the bathroom. We cannot reverse where reasonable and fair-minded jurors could find Quarles guilty. There was sufficient testimony for the jury to find that Quarles did attempt to engage in sexual battery with Z.J., either through his attempts at oral sex or his failed attempt at sexual penetration.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY OF CONVICTION OF ATTEMPTED SEXUAL BATTERY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SEVEN YEARS TO SERVE AND THREE YEARS SUSPENDED, IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO LAFAYETTE COUNTY.

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


author: McMILLIN, C.J.,

text:
    George Randall HUNT, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01466-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.

      Mark G. Williamson, Starkville, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. George Hunt was indicted and convicted on three counts of drug-related crimes. He has appealed the decision of the trial court to deny him a new trial. Hunt sought a new trial on the basis that the jury’s verdict was against the weight of the evidence. He further complains that he is being subjected to multiple punishments for the same conduct in violation of the protections against double jeopardy afforded him under applicable constitutional principles. We find no merit in Hunt’s challenge to the weight of the evidence. However, we conclude that at least a portion of Hunt’s contentions regarding double jeopardy are correct. We, therefore, affirm Hunt’s convictions as to the first and third counts of the indictment but reverse and render the conviction on the second count.

I.

Facts

¶ 2. Hunt and his wife were observed by store personnel in a Wal-Mart in Oktib-beha County to be gathering several purchases that included an unusually large number of packages of over-the-counter cold medication known to contain the chemical pseudoephedrine. Store personnel, aware that pseudoephedrine was a precursor chemical used in the illegal manufacture of the controlled substance methamphetamine, alerted law enforcement authorities.

¶ 3. The authorities pulled over Hunt’s vehicle after he had left the store and discovered that his purchases included more than 250 dosage units of cold pills, a number of batteries containing the precursor substance, lithium, and other products containing chemicals useful in the manufacture of methamphetamine. Hunt gave a voluntary statement in which he acknowledged that he had been asked to purchase the cold tablets and the lithium batteries by an individual identified as Tommy Howell and that Hunt was aware that Howell had been involved in the manufacture of methamphetamine in the past. He stated that Howell had given him one hundred dollars to make these purchases with the understanding that any sums left over would be retained by Hunt as compensation for his effort. Hunt claimed in his statement that the remaining products were purchased by him individually for use in wood finishing activities.

¶ 4. As a result of facts gathered in the investigation, Hunt was indicted in a three-count indictment that, in summary, charged (a) a violation of the provision of the Mississippi Code that prohibits the simultaneous possession of two or more chemicals appearing on a list of identified precursor materials used in the manufacture of methamphetamine substances under circumstances demonstrating that the possessor knew (or reasonably should know) that the drugs would be used to illegally manufacture methamphetamine, (b) a violation of the provision of the Mississippi Code that prohibits the possession of 250 dosage units of pseudoephed-rine under circumstances where he knew or reasonably should have known the chemical was to be used in the illegal manufacture of methamphetamine, and (c) a conspiracy with Howell to possess these precursor chemicals.

II.

Multiple Punishments for the Same Conduct

A.

Multiplicity in the Indictment

¶ 5. Count One of the indictment, listing the precursor chemicals Hunt was alleged to possess simultaneously, named the following materials: pseudoephedrine, hexane, heptane, toluene, naptha, and lithium. Count Two alleged that he possessed “pseudoephedrine, in an amount in excess of Two Hundred Fifty (250) dosage units.” There is no dispute that the quantity of pseudoephedrine described in Count One is the same quantity of the drug that is identified in Count Two.

¶ 6. At the conclusion of the proof, Hunt contended that he was, in effect, being charged with two distinct crimes for the same underlying conduct. He argued that he was exposed to punishment for the act of possession of the pseudoephedrine yet, because possession of the same pseu-doephedrine was an essential element of Count Two, he was subject to a second punishment for the same conduct in violation of the double jeopardy protection afforded him in such circumstances. Blockburger v. U.S., 284 U.S. 299, 303-04, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

¶ 7. The trial court, expressing concern over that circumstance, attempted to resolve the problem by dropping the allegation concerning pseudoephedrine from the jury instruction defining the elements of Count One on the theory that, since the count recited more than the minimum of two precursors necessary to support that charge, there were enough remaining forbidden substances listed to sustain a conviction on that count without consideration of the pseudoephedrine.

¶ 8. Section 41 — 29—313(l)(a)(ii) makes it illegal to

possess any two (2) or more of the listed precursor chemicals or drugs in any amount, knowing, or under circumstances where one reasonably should know, that the listed precursor chemical or drug will be used to unlawfully manufacture a controlled substance.

Miss.Code Ann. § 41-29-313(l)(a)(ii) (Supp.2003). Section 41-29-313(3) contains the referenced list which numbers twenty-three suspect materials. It is sufficient for our discussion to note that the list includes pseudoephedrine, heptane, toluene, and lithium, which were the chemicals shown by the State’s proof at trial to have been in Hunt’s possession.

¶ 9. This Court doubts the authority of the trial court to alter the nature of the charges in the manner that it did in this case. By omitting the charge of possession of pseudoephedrine from the instructions defining the elements of Count One under these circumstances, the court effectively amended the indictment to omit an allegation of possession of pseu-doephedrine from consideration in Count One, not on the basis of a failure of the proof, but because the State needed to “borrow” that factual allegation to sustain its contentions on another count in the indictment. It would appear that such a modification of an indictment was one of substance rather than form and, as such, could only be undertaken by action of the grand jury. Jones v. State, 279 So.2d 650, 651 (Miss.1973).

¶ 10. We, therefore, find it appropriate to consider Hunt’s claims of double jeopardy on the basis of the provisions of the indictment in its “unamended” form. Viewed in that light, we are satisfied that the State has, in fact, attempted to punish Hunt under two separate criminal statutes for what is but a single criminal act. Certainly, under the facts, the State had the option of charging Hunt either for the simultaneous possession of two or more precursor chemicals, one of which was pseudoephedrine, or for the possession of 250 dosage units of pseudoephedrine. However, once the State elected to indict him on Count One for possession of two or more precursor chemicals in any amount and the list of those chemicals included pseudoephedrine, then Hunt was properly charged and exposed to criminal punishment for his alleged possession of the pseudoephedrine. Any further attempt to punish him separately for a crime that involved no separate or additional criminal activity beyond possession of the same pseudoephedrine mentioned in Count One would be multiplicitous and would necessarily expose Hunt to a second punishment for the exact same offending conduct for which he was already subject to punishment under the first count. “[Blockbur-ger ] charges that we compare statutory offenses, as indicted, and see whether each requires proof of a fact which the other does not.” Meeks v. State, 604 So.2d 748, 751 (Miss.1992). In this case, a conviction under Count One includes every fact that is necessary to obtain a conviction under Count Two except for the matter of the quantity of pseudophedrine discovered in Hunt’s possession.

¶ 11. We do not think this additional consideration concerning quantity alone is enough to overcome double jeopardy considerations and expose Hunt to multiple punishments for the same conduct. While it may be true that the language of Section 41 — 29—313(l)(a)(i) regarding “any amount” of the prohibited substances was primarily intended to cover situations where lesser quantities of the suspect materials were discovered and, therefore, the showing of multiple items was required to strengthen the inference of wrongful intent, it is nevertheless true that “any amount” plainly means just that — any amount. Therefore, the possession of 250 — or 250,000, for that matter — dosage units of pseudoephedrine simultaneously with the possession of any one of the other prohibited substances listed in the statute constitutes a consummated violation of Section 41 — 29—313(l)(a)(i), and, if a defendant is charged, convicted, and sentenced for that violation, it would plainly constitute a double jeopardy violation to attempt to punish him a second time for the possession of the exact same supply of pills, simply on the basis that the quantity happened to exceed the permissible level under a separate criminal statute. It is not uncommon for criminal statutes relating to drug possession to define differing levels of the offense in terms of maximum punishment depending on the quantity of the illegal substance possessed. Nevertheless, it would not appear appropriate for the State to be able to divide a large quantity of drugs discovered in the possession of a defendant into separate quantities, each meeting the minimum quantity set out in a particular statute, and thereby multiply the number of criminal charges to be brought. Though not directly analogous, the situation we face in this instance has some of the same similarities.

¶ 12. The double jeopardy considerations appear with some added clarity if one assumes the situation where a hypothetical defendant in Hunt’s situation was indicted, convicted, and sentenced on a single count charging simultaneous possession of pseudoephedrine and another of the forbidden precursor chemicals and, before the statute of limitations had run, was indicted by another grand jury for possession of the same pseudoephedrine under the alternate provisions regarding possession of 250 dosage units. In that situation, there can be little doubt that double jeopardy considerations would bar the subsequent prosecution. That the attempt to extract multiple punishments for the same offending conduct occurred in the same prosecution does nothing to alter the proper outcome of Hunt’s double jeopardy challenge.

¶ 13. For the foregoing reasons, we find it necessary to reverse and render Hunt’s conviction under Count Two. See generally Thomas v. State, 711 So.2d 867, 870 (¶¶ 14-15) (Miss.1998) (discusses the Blockburger, or “same-elements” test, for determining whether double jeopardy bars additional punishment and successive prosecution).

B.

Conspiracy and the Crime Itself as Double Jeopardy

¶ 14. Additionally, Hunt contends that he is being punished twice for the same underlying offense because he stands convicted for conspiring to possess these illegal substances and also for actually possessing them. He contends that, upon completion of the crime itself, the two offenses merge. This claim is without merit. Case law makes it plain that conspiring to commit a crime is a separate offense that is complete once the conspiracy is undertaken, an event that necessarily precedes the actual commission of the planned crime. State v. Thomas, 645 So.2d 931, 933 (Miss.1994). As such, the two offenses are considered separate criminal violations separately punishable without invoking considerations of double jeopardy. Id. This issue is without merit.

III.

Weight of the Evidence

¶ 15. Hunt points out that all of the materials found in his possession are legally-permissible substances readily available for purchase by the general public. He additionally suggests that the proof showed that it would take additional materials beyond those found in his possession to actually manufacture illegal methamphetamine substances. From those two premises, Hunt suggests that the evidence did not warrant a conviction.

¶ 16. In his brief, Hunt appears to blend two separate contentions. One is that the evidence was insufficient as a matter of law to sustain a verdict of guilty. The other is that the verdict was against the weight of the evidence. These are two related but different propositions. This is best illustrated by the marked difference in the relief afforded an appellant who prevails on one or the other contentions. If the evidence is determined on appeal to be insufficient as a matter of law to support the conviction, then the appellant is entitled to have his conviction reversed and rendered on principles arising out of double jeopardy considerations. Moore v. State, 755 So.2d 1276, 1280-81 (¶¶ 15-16) (Miss.Ct.App.2000). However, if the determination is that the verdict was against the weight of the credible evidence, then double jeopardy is not an issue, and the relief afforded is that the conviction be set aside and the matter remanded to the trial court for a new trial. Id.

¶ 17. In this instance, we find it unnecessary to attempt to unravel Hunt’s contentions and address each one separately. His argument is not, in actuality, an attack either on the weight or the sufficiency of the evidence establishing his guilt. It is, rather, an attack on the statute itself as being an attempt to criminalize conduct that is not, in fact, criminal since every item he was charged with possessing is legally available for purchase by the general public.

¶ 18. We find this argument to be without merit. The statutory scheme intended to achieve the worthy objective of halting or impeding the illegal production of harmful narcotic substances prohibits the possession of these otherwise legal substances only in circumstances where the State can demonstrate beyond a reasonable doubt that the defendant knew or where he reasonably should know that the possession was in furtherance of the production of such illegal substances. Miss.Code Ann. § 41-29-313 (Supp.2003). The statute provides some safeguards from overzealous prosecutions by limiting the offense to situations where two or more of the suspect items are possessed at the same time or,. with regard to over-the-counter cold medicine, where the quantity would appear to be excessive for any legitimate anticipated use of such a product.

¶ 19. In the case before us, Hunt admitted in his statement that he was requested to purchase these materials by another individual in return for a cash compensation under circumstances where Hunt was aware that this individual had been previously involved in the manufacture of illegal methamphetamine substances. The evidence showed that, in the interim period from leaving the Wal-Mart store and the subsequent stop by investigating officers, Hunt and his wife had attempted to conceal the cold tablets inside the vehicle, offering support to an inference of the requisite guilty knowledge on Hunt’s part. Hunt offered no evidence that would suggest an exculpatory explanation for his possession of these materials. In that circumstance, we conclude that the evidence, viewed in the light most favorable to the State, was sufficient to support a conviction on both Counts One and Three and that the verdicts on those counts were not so against the weight of the evidence that to permit them to stand would constitute a manifest injustice. Montana v. State, 822 So.2d 954, 967-68(¶ 61) (Miss.2002).

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OP OKTIBBEHA COUNTY OF CONVICTION, AS AN HABITUAL OFFENDER, ON COUNT 1 OF POSSESSION OF METHAMPHETAMINE AND SENTENCE OF LIFE AND ON COUNT 3 OF CONSPIRACY TO POSSESS METHAMPHETAMINE AND SENTENCE OF LIFE, WITH SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED; HOWEVER, CONVICTION ON COUNT 2 OF POSSESSION OF METHAMPHETAMINE AND SENTENCE OF LIFE IS REVERSED AND RENDERED. COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

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