author: GRIFFIS, J.,

text:
    Peggy BOWDEN, Appellant v. LAWRENCE COUNTY SCHOOL DISTRICT, Appellee. Lawrence County School District, Appellant v. Peggy Bowden, Appellee.
    Nos. 2005-CA-01462-COA, 2004-CC-00556-SCT.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.

      Chester D. Nicholson, Gail D. Nicholson, attorneys for appellant.
    Janet McMurtray, Jackson, James A. Keith, Long Beach, attorneys for appellee in No. 2005-CA-01462-COA.
    Janet McMurtray, Jackson, James A. Keith, Long Beach, Jarrad Garner, attorneys for appellee in No. 2004-CC-00556-SCT.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Peggy Bowden requested a hearing before the Lawrence County School Board when it approved the superintendent’s decision not to renew her employment. The Board upheld the decision. Bowden appealed to the Lawrence County Chancery Court, which likewise affirmed the Board’s decision. Bowden appeals and argues the Board’s decision should be reversed because it was arbitrary and capricious. We find no error and affirm.

FACTS

¶ 2. The Lawrence County School Board employed Bowden as the guidance counsel- or for both New Hebron Attendance Center and Monticello Junior High School. She worked Monday and Tuesday at New Hebron and Wednesday through Friday at Monticello. This was her schedule for two school years, 1998-2000.

¶ 8. On March 24, 2000 the Board advised Bowden that it would not renew her employment for the upcoming school year. This decision was based on the recommendation of both of the principals, Dr. Flavol Rester and Dr. James Ochenrider. Rester gave two reasons for his recommendation — Bowden’s failure to maintain student records and failure to work cooperatively with staff members. Ochenrider gave the same reasons and added that Bowden processed changes without approval of the principal, “not availing” herself “for resolving emergency situations requiring counseling,” and making parents wait when trying to enroll students in school.

STANDARD OF REVIEW

¶ 4. When this Court reviews a decision by a chancery or circuit court concerning an agency action, we apply the same standard of review that the lower courts are bound to follow. Miss. Sierra Club, Inc. v. Miss. Dep’t of Envtl. Quality, 819 So.2d 515, 519 (¶ 15) (Miss.2002). The standard of review of a school board’s decision not to renew an employment contract is set by statute:

The scope of ■ review of the chancery court in such cases shall be limited to a review of the record made before the school board or hearing officer to determine if the action of the school board is unlawful for the reason that it was:
(a) Not supported by substantial evidence;
(b) Arbitrary or capricious; or
(c) In violation of some statutory or constitutional right of the employee.

Miss.Code Ann. § 37-9-113(3) (Rev.2001). Uncorroborated hearsay is not substantial credible evidence. Noxubee County Bd. of Educ. v. Givens, 481 So.2d 816, 820 (Miss.1985).

ANALYSIS

¶ 5. Bowden argues the Board’s decision was arbitrary and capricious because it had no basis in fact. The Board replies that there was substantial evidence to support the reasons for non-renewal.

¶ 6. The terms “arbitrary” and “capricious” imply “a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.” St. Dominic-Jackson Mem’l Hosp. v. Miss. State Dep’t of Health, 910 So.2d 1077, 1082 (¶ 14) (Miss.2005) (quoting HTI Health Servs. of Miss., Inc. v. Miss. State Dep’t of Health, 603 So.2d 848, 851 (Miss.1992)). “An act is arbitrary when it is not done according to reason or judgment, but depending on will alone.” Burks v. Amite County Sch. Dist., 708 So.2d 1366, 1370(¶ 14) (Miss.1998). If the reasons for non-renewal are a sham, or are a retaliation for the employee’s constitutionally protected activity, the Board acts arbitrarily and capriciously. Claiborne County Bd. of Educ. v. Martin, 500 So.2d 981, 986 (Miss.1986).

¶ 7. -For example, in Claiborne County Board of Education, the school board declined to renew the employment of Martin, a guidance counselor, at Port Gibson High School. Id. at 982. The board likewise refused to place Martin in a vacant social science teaching position. Id. at 983. This was despite the fact the principal recommended Martin for the teaching position, and Martin had previously taught this position at the same school, for nine years prior to becoming a guidance counselor. Id. at 982-83. The board’s proffered reason was that the minimum' accreditation standards only required one guidance counselor for an enrollment of less than five hundred students. Id. at 982. Martin was one of two counselors at Port Gibson. Id. at 983. However, from 1979 to 1984, Port Gibson had under five hundred students each year and employed two guidance counselors. Id. There was no evidence of any budget cutbacks or decline in student needs to justify reducing the counseling staff from two to one. Id. Because the proffered reason was a sham, the board’s decision was arbitrary and capricious. Id. at 986. Moreover, Martin had engaged in political activity against three members of the board and the superintendent. Id. at 983. Because there was no other reason to fire Martin, the board was unable to rebut the presumption that he was fired in retaliation for his political views. Id. at 986. The court reversed the board’s decision, and Martin was reinstated and given back pay. Id.

¶ 8. Likewise, in Noxubee County Board of Education, the supreme court held that a school board acted arbitrarily and capriciously when it fired Givens. Although Givens’ contract assigned her to Noxubee Elementary, the superintendent, by letter, reassigned her to Wilson Attendance Center. Noxubee County, 481 So.2d at 817. When Givens arrived at Wilson Attendance Center, no one at the school knew she was coming. Id. The principal never assigned her any duties. Id. Givens reported to school every day for about a month and volunteered to help the other teachers. Id. Confused by the lack of duties, she consulted her contract and reported to Noxubee Elementary. Id. The principal at Wilson Attendance Center did not object. Id. For several days, Givens stayed in the office at Noxubee Elementary without being given any duties. Id. She finally asked the superintendent where she was supposed to be and was told Wilson Attendance Center. Id. She reported to Wilson Attendance Center the next day, only to be fired by the superintendent. Id. at 817-18. The board accused Givens of insubordination and neglect of duty. Id. at 819. There was- no evidence that Givens was given any duties, much less that she neglected them or willfully engaged in insubordination. Id. The only possible evidence to support the board’s holding was uncorroborated hearsay. Id. at 820. The supreme court held that while the board could accept hearsay, uncorroborated hearsay was not substantial evidence. Id. The court reinstated Givens. Id.

¶ 9. The reasons given for the non-renewal of Bowden’s contract were: (1) failure to maintain the student records, (2) failure to cooperate with staff, (3) processing changes without approval of the principal, (4) “not availing self for emergency counseling situations,” and (5) making parents wait to enroll students.

A. Failure to maintain student records

¶ 10. Rester, the principal of New He-bron, testified he audited the school records September 9, 1999, and January 20, 2000. The September audit indicated that there were four, out of over 400, records which were not placed in the appropriate location. It also indicated that a certain student’s record had been requested several times by the alternative school to which the student had been transferred, and Bowden had neglected to locate and send it. The January audit revealed that there were eight student records that were not filed. Five of these records were received by the school on January 11, one was received January 13, and two were received on January 18. January 11 and 18 were days when Bowden was at the school. On January 24, she was told to file them and did. Rester, school secretary Rose Davis, and office assistant Silas Lewis testified that there were constant problems with the records in the wrong place, missing documentation, documents not filed, and multiple requests of parents to bring in duplicate documentation. All three testified, however, that other teachers and office personnel have access to these records and .Bowden only works there two days a week. Lewis admitted that his job was to assist Bowden with the record keeping.

¶ 11. Ochenrider, the principal of Monticello, also testified to students’ records which were missing documentation. Just as at New Hebron, all teachers and staff had access to the student records, and Bowden only worked there part of the week. He also accused Bowden of sending records out without the proper clearance. Specifically, the records did not have complete documentation or there would be a monetary hold on the records, which should have prevented them being sent out.

B. Failure to cooperate with staff

¶ 12. Rester and Davis testified that Bowden did not get along with Davis. According to their testimony, this animosity occurred because Bowden would ask Davis to make copies. Rester and Davis both admitted that it was Davis’ job, as the school secretary, to make copies for whoever requested it if she had the time. If Davis was busy, the person was to make her own copies. Davis said there was nothing wrong with Bowden asking her to make copies. Rester also testified that one day, Bowden was upset to discover that boxes of standardized testing materials had been placed in her office. He explained that the boxes had to be placed there in order to comply with the school’s security plan with the State Department of Education. Bowden continued to argue with Rester about it several times that day. Rester testified:

And then one of the instances that was really a particular aggravation to me was that I was — she approached me, and I told her that I was on the phone at that time, to just give me a few minutes. And I was between calls because I was waiting for this person to return the call.
And her remark to me was, “Well, are you on the phone now?”
And I said, “Mrs. Bowden, we will take care of this, then.”
So we went [into] my office, and I just told her, “The boxes are going to stay in your office.”
And at this point in time, she told me that her stress level was beyond belief, and that she was going to have to take off the rest of the day and go see [Superintendent] Bull.

¶ 13. Ochenrider testified that Bowden and the school secretaries, Gladys Smith and Carol Moye, were at odds. Bowden complained Smith and Moye would not assist her, and the secretaries argued that Bowden was trying to get them to do her job. Ochenrider admitted that, time permitting, as school secretaries, they were to assist office personnel. Ochenrider also complained that Bowden and the teachers did not get along, because Bowden would not reschedule an advisory meeting. However, he said he left the decision to Bow-den and could have vetoed it if he wanted.

C. Processing schedule changes without approval

¶ 14. Bowden’s last teacher evaluation at Monticello was dated February 2, 1999. It noted that she did not consult “with the administration, as necessary, concerning changes in schedules for the students.” Ochenrider testified that this evaluation was done under a previous principal, Mr. Sills. Ochenrider, too, had problems with Bowden making schedule changes without approval. He testified that only Assistant Principal Elizabeth Woods and he could authorize schedule changes. A student asked Bowden to change her back to a lower reading class. Bowden did so on her own and did not inform Woods until afterwards.

D. “Not availing self in emergencies”

¶ 15. Ochenrider testified to a fight involving three female students. The students were brought into the office, where they tried to- continue the fight. Ochenri-der and Woods each held back two of the students. Woods directed Bowden to take the third student into her office. Bowden refused, because she had an appointment. After several minutes of debate, Bowden acquiesced.

¶ 16. Woods testified there were several occasions when she would have a student who required emergency counseling. When Woods asked Bowden to speak with the student, Bowden would refuse, saying her schedule would not permit it. She would insist on scheduling the student for a later appointment. It was only after persistent argument with Woods that Bow-den would go ahead and see the child.

E. Making parents wait to enroll students

¶ 17. Ochenrider testified to a particular instance where parents came in during the lunch hour to enroll students. Ochen-rider instructed Bowden to take care of it. Instead, she asked the school secretaries to do it, because she was on her way to lunch. Bowden did not have a particular lunch hour and was expected to make parents and students her priority. After eating her sandwich, Bowden returned and enrolled the students.

¶ 18. Despite this testimony, Bowden attempted to show that the Board’s decision was in retaliation for her racial discrimination claim which she had previously filed with the Equal Employment Opportunity Commission. After being fired from Lawrence County High School, in 1998, she filed this claim. As a settlement, the Board offered her the split position between New Hebron and Monticello, which she held for two years. Her predecessor likewise had to split the position between these two schools.

¶ 19. Although we may have decided this case differently, our review is not de novo. We are constrained to review the record for substantial evidence to support the Board’s decision. “Substantial evidence means more than a scintilla or a suspicion.” St. Dominic-Jackson, 910 So.2d 1077, 1081(¶ 13) (Miss.2005) (quoting Miss. State Dep’t of Health v. Natchez Cmty. Hosp., 743 So.2d 973, 977(¶ 12) (Miss.1999)). We find there was substantial evidence to support the Board’s decision not to renew Bowden’s contract. We are unable to say that the Board’s proffered reasons to terminate Bowden were a sham. On the whole, the evidence indicated that Bowden had difficulties in dealing with staff and trouble obtaining and releasing student records. She made changes in student schedules without approval. She also exhibited a reluctance to handle emergency situations involving the students’ physical and mental well being. Accordingly, we affirm.

¶ 20. THE JUDGMENT OF THE CHANCERY COURT OF LAWRENCE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Byron FLAKE, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00577-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.

      Before KING, C.J., CHANDLER, BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court.

¶ 1. Byron Flake appeals the Circuit Court of Neshoba County’s judgment convicting him of possession of methamphetamine and sentencing him to eight years in the custody of the Department of Corrections. We find no error and affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2. On February 17, 2004, a warrant was issued to search Byron Flake’s residence in Neshoba County. This came about because on February 16, 2004, a confidential informant (C.I.) had called a Philadelphia police officer asking to meet with him. At this meeting the same day, the C.I. produced a small zip-type baggy that contained an off-white powder, which the C.I. stated was methamphetamine. A field test revealed this statement to be true. The C.I. stated he had purchased this substance from Flake. The C.I. also stated he had seen at Byron Flake’s residence what was presumed to be methamphetamine. Additionally, the C.I. told the police officer he had purchased methamphetamine from Flake in the past. The police officer was aware that this particular C.I. had previously offered reliable information which had led to several drug convictions. The affidavit for the search warrant contained the above information, but did not indicate the date that the C.I. made the most recent methamphetamine purchase.

¶ 3. Three police officers searched Flake’s residence, a trailer, on February 17, 2004, after the search warrant was issued. During the search the officers found throughout Flake’s home methamphetamine and paraphernalia commonly used to smoke methamphetamine. Included in the items obtained from this search were a water pipe, plastic baggies with a residue, plastic baggies with crystals, a box of approximately fifty glass tubes, and a residential gas bill in Flake’s name with the trailer’s address. The drugs and paraphernalia were found in Flake’s kitchen and master bathroom, respectively. Evidence showed Flake lived in this trailer alone. After testing at the state’s crime lab, the substances retrieved from Flake’s trailer proved to be methamphetamine, weighing a total of 0.69 grams.

¶4. On September 28, 2004, an indictment was filed charging Flake with possession of a Schedule II controlled substance, methamphetamine, under Mississippi Code Annotated section 41-29 — 139(c)(1)(B). Flake entered a plea of not guilty. On March 14, 2005, at a pretrial hearing, Flake filed several motions — specifically, a motion to compel the name of the confidential informant, a motion to suppress the evidence obtained from his trailer, and an ore ten-us motion to quash the venire. Flake maintained that the search of his trailer February 17 was illegal because there was inadequate probable cause to obtain the search warrant. Additionally, Flake argued that certain comments made by the circuit court judge to the jury pool, the day before the trial, about the drug court system unduly prejudiced Flake. The circuit court denied all of Flake’s pretrial motions.

¶ 5. On March 15, 2005, a Neshoba County jury returned a verdict of guilty against Flake. The circuit court judge sentenced Flake to eight years in the custody of the Department of Corrections with a $5,000 fine. Aggrieved, Flake perfected this appeal.

ISSUES AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE RESULTS OF THE SEARCH OF FLAKE’S RESIDENCE.

¶ 6. Flake argues that since the affidavit for the search warrant did not specify the date when the C.I. actually bought the methamphetamine, the information upon which the warrant was based might not be current, and thus there was insufficient probable cause for the magistrate to issue the warrant. Therefore, he claims the search warrant was invalid, and the search of his trailer which produced evidence of drug possession was illegal, in violation of Article 3, Section 23 of the Mississippi Constitution and the Fourth Amendment of the United States Constitution. We disagree.

¶ 7. Our standard of review for the admission or exclusion of evidence is abuse of discretion. Stallworth v. State, 797 So.2d 905, 908(¶ 8) (Miss.2001). Our review of a magistrate’s issuance of a warrant is not a de novo determination of probable cause, but whether the magistrate had a substantial basis for concluding that probable cause existed. Smith v. State, 504 So.2d 1194, 1196 (Miss.1987). The standard for determining the existence of probable cause for a search warrant based on an informant is the totality of the circumstances. Lee v. State, 435 So.2d 674, 676 (Miss.1983) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The magistrate’s duty is “to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... including the ‘veracity’ and ‘basis of knowledge’ ” of the informant, that “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id.

¶ 8. Flake cites to but one case, Barker v. State, 241 So.2d 355 (Miss.1970), for his argument that the State has an affirmative duty to demonstrate to the magistrate that the facts are current on an affidavit for a search warrant. In Barker, the court concluded that there was insufficient probable cause for the search warrant based on the confidential informant’s information. Id. at 359. However, the Barker court analyzed the existence of probable cause based on an informant under the United States Supreme Court’s two-part Aguilar-Spinelli test which was abandoned in 1983 in favor of a totality of the circumstances test in Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Barker, 241 So.2d at 356-57. Further, the State correctly points out that Barker is factually distinguishable from the case at bar in that the Barker informant never personally observed the drugs at the defendant’s residence, as here, but instead had seen the drugs at another location two weeks earlier. Id. at 357. Thus, in Barker, it was not the two-week delay between obtaining the drugs and the warrant which constituted insufficient probable cause, but the fact the informant only had mere suspicion there might be drugs in the defendant’s home, since he had not witnessed their presence there firsthand. Id.

¶ 9. Flake is correct in asserting that staleness of information may be a defect in probable cause for search warrants. However, it is our opinion that the facts here do not imply that the information forming the basis for the probable cause was stale. The determination of factual currency in the affidavit for a search warrant would be but one factor in the totality of the circumstances for establishing the existence of probable cause. See Lee v. State, 435 So.2d 674, 676 (Miss.1983). Additionally, our supreme court has held that the affidavit will be interpreted in a common sense manner “when the circumstances are detailed, the reason for crediting the source of information is given, and the judicial officer has found probable cause.” Meyer v. State, 309 So.2d 161, 165 (Miss.1975).

¶ 10. In our case, the affidavit was detailed, the confidential informant was an eyewitness to illegal acts, and he had a reliable track record. The magistrate proceeded on more than mere suspicion in issuing the warrant. It defies common sense to believe that the confidential informant purchased methamphetamine from Flake and then carried it around for several weeks before notifying the police. Further, it can be reasonably inferred that the drugs were purchased from Flake close to the time the informant contacted the police because of the fact that the informant stated he had bought other drugs from Flake “in the past,” which implies that this particular purchase was recent. We find no merit to Flake’s argument that under the given facts the warrant was fatally defective because of inadequate probable cause. Therefore, the trial court did not err in admitting the evidence obtained from the search of Flake’s residence.

II. WHETHER THE TRIAL COURT ERRED IN DENYING FLAKE’S MOTION TO QUASH VENIRE.

¶ 11. Flake filed a pretrial motion to quash the venire because he claims the circuit court judge made pretrial comments to the jury pool about a newly established drug court for the circuit which prejudiced Flake. The judge stated that it had been his practice for the last six months to inform the jury pool before trials of the existence of the drug court. He then made several comments about its operation and who is eligible. Flake claims that the judge’s comments could have predisposed the jury to find him guilty. We disagree.

¶ 12. The decision to quash a venire is entrusted to the discretion of the trial court. Kolberg v. State, 829 So.2d 29, 83 (¶ 156) (Miss.2002). When the evidence conflicts about whether the defendant received “a fair and impartial trial, this Court will generally defer to the considered opinion of the trial judge.” Payton v. State, 897 So.2d 921, 931(¶ 11) (Miss.2003) (quoting Burrell v. State, 613 So.2d 1186, 1190 (Miss.1993)). Jury impartiality is a judicial question which will be determined on a case by case basis, and this Court will not disturb the circuit court’s finding unless it is clearly wrong. Dennis v. State, 555 So.2d 679, 682 (Miss.1989) (citing Walls v. State, 371 So.2d 411, 413 (Miss.1979)).

¶ 13. The guarantee of an impartial jury is established under the Sixth Amendment of the United States Constitution and Section 26 of Article 3 of the Mississippi Constitution. Flake claims that the judge’s comments about the recently established drug court could have predisposed the jurors to finding him guilty because the jurors might deduce that the defendant “could be sentenced to drug court punishment on conviction rather than confinement ... and might require less evidence than proof of guilt beyond a reasonable doubt to justify conviction.” Alternatively, Flake claims that since he was not in drug court, the jury might think that he was a particularly bad wrongdoer, since only non-violent first-time-offenders are eligible for drug court.

¶ 14. Here, we find that there was no evidence of prejudicial effect on the jury by the judge’s comments concerning the drug court. Flake’s trial was held the day after these supposedly prejudicial remarks were made. During the voir dire which followed, the defense did not discover any jury bias. Neither did the defense object once the jury was empaneled. The jury indicated it would fairly decide the case on the facts and law presented. Flake presents no evidence that the judge’s comments had a prejudicial effect on the jury except for the fact that they ultimately found him guilty. We find the content of the remarks made by the judge were merely informative and could not be deemed inflammatory. Thus, we do not find these remarks prejudicial, and there was no infringement on Flake’s constitutional rights to an impartial jury or a fair trial.

III. WHETHER THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE FLAKE’S POSSESSION OF DRUG PARAPHERNALIA.

¶ 15. Flake filed a motion in li-mine to exclude the drug paraphernalia taken from his trailer as improperly admitted evidence of “other crimes” under M.R.E. 404(b). Flake claims this evidence was irrelevant since he was not charged with possession of drug paraphernalia. Further, Flake claims that this evidence was improperly admitted because it was not proven that the items were related to methamphetamine usage. We disagree.

¶ 16. This Court’s standard of review for the admissibility of evidence is abuse of discretion. Howell v. State, 800 So.2d 556, 560(¶12) (Miss.Ct.App.2001). This Court will not reverse the trial court’s ruling unless the judicial discretion is so abused as to prejudice the accused. Id. (citing Graves v. State, 492 So.2d 562, 565 (Miss.1986)).

¶ 17. M.R.E. 404(b) contains a list of exceptions for when evidence of other crimes and acts may be admitted, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake.... ” The circuit court, in denying Flake’s motion in limine, found that the drug paraphernalia fit the enumerated exceptions to M.R.E. 404(b). We agree.

¶ 18. Our supreme court has held that admission of evidence of other crimes may be “necessary to present a complete story” and “[w]here the evidence might be relevant in another manner ... i.e., ‘interconnected’ ” to the crime charged. Flowers v. State, 773 So.2d 309, 319(1128) (Miss. 2000). “Rule 404(b) is not a blanket prohibition of evidence of other actions.” Id. The items at issue—glass water pipes and glass tubes—are known and used in the drug culture for ingesting drugs, particularly methamphetamine. Further, Mississippi courts have repeatedly held that possession of drug paraphernalia is relevant to possession of contraband. See Parks v. State, 853 So.2d 884, 887(¶11) (Miss.Ct. App.2003) (finding cigarette papers and scales relevant to establishing constructive possession of marijuana when found in close proximity to drugs); Howell v. State, 800 So.2d 556, 560(¶ 11) (Miss.Ct.App.2001) (finding homemade crack pipe relevant to cocaine possession); Buggs v. State, 738 So.2d 1253, 1258(1123) (Miss.Ct.App.1999) (finding crack pipes and other drug paraphernalia relevant to establish constructive possession and control of crack cocaine on premises). Flake even admits in his brief that “[e]vidence of possession of paraphernalia did highlight Appellant’s [Flake’s] participation in the drug culture.” We find that Flake’s possession of the objects is relevant to show his participation in the drug culture. More importantly, the drug paraphernalia is highly relevant to show Flake’s intent, preparation, knowledge, and absence of mistake in possessing methamphetamine. Accordingly, the trial court did not err in admitting evidence of Flake’s drug paraphernalia. This issue is without merit.

¶ 19. In conclusion, we find Byron Flake’s assignments of error to be without merit. We affirm the judgment of the circuit court finding Flake guilty of possession of methamphetamine.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF NESHOBA COUNTY OF CONVICTION OF POSSESSION OF METHAMPHETAMINE AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESH-OBA COUNTY.

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


author: ISHEE, J.,

text:
    Marcia Lynn JONES a/k/a Marcia S. Jones, Appellant v. STATE of Mississippi, Appellee. Marcia Lynn Jones, a/k/a Marcia S. Jones, Appellant v. State of Mississippi, Appellee.
    Nos. 2006-CP-00654-COA, 2006-CP-00657-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.

      Marcia Jones, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Marcia Lynn Jones, also known as Marcia S. Jones, pled guilty to grand larceny and uttering a forgery in the Circuit Court of Tate County. Jones was sentenced as a habitual offender to serve five years for grand larceny in the custody of the Mississippi Department of Corrections (MDOC). For uttering a forgery, Jones was sentenced to five years of post-release supervision to run consecutively to the sentence for grand larceny. Jones filed two motions for post-conviction relief; the circuit court denied the first motion and dismissed the second. Aggrieved by the court’s decisions, Jones appeals. She asserts the following issues for this Court’s review:

I. Whether Jones received ineffective assistance of counsel.
II. Whether Jones voluntarily entered her guilty plea to grand larceny.
III. Whether the circuit court had subject matter jurisdiction.
IV. Whether Jones is entitled to post-conviction relief because newly discovered evidence proves that her signature on the waiver of arraignment and entry of plea form was forged.

Finding no error, we affirm.

FACTS

¶ 2. On March 6, 2003, Jones was indicted as a habitual offender by a Tate County grand jury for grand larceny. The indictment specifically alleged that Jones “did wilfully, unlawfully and feloniously, take, steal and carry away the personal property of Valerie Konrad, to wit: One (1) Olympus digital camera; Two (2) disc; One RCA video cassette recorder, and one (1) tool box, of the total and aggregate value in excess of $250.” The indictment further stated that Jones had previously been convicted of obtaining a controlled substance by fraud and grand larceny in the Circuit Court of Tate County, and that she had previously been convicted of two counts of felony shoplifting in the Circuit Court of DeSoto County. At the time of the March 6, 2003 indictment for grand larceny, Jones was already under indictment in the Circuit Court of Tate County for four counts of uttering a forgery.

¶ 3. On January 31, 2003, Jones signed a waiver of arraignment and entry of plea form, acknowledging that she received service of a copy of the indictment for four charges of uttering a forgery, and indicating that she was entering a plea of not guilty to the charges. On March 12, 2003, Jones signed a second waiver of arraignment and entry of plea form, acknowledging that she received service of a copy of the indictment for grand larceny, and indicating that she was entering a plea of guilty to the charge. Clay Vanderburg, Jones’s court-appointed attorney, assisted her in filling out both of the waiver of arraignment and entry of plea forms.

¶ 4. On March 12, 2003, Jones pled guilty to a single count of uttering a forgery and to grand larceny as a habitual offender before the Circuit Court of Tate County. Jones was sentenced as a habitual offender to serve five years for grand larceny in the custody of the MDOC, and for uttering a forgery, Jones was sentenced to five years of post-release supervision.

¶ 5. Jones filed a motion for post-conviction relief on November 24, 2004. Jones asserted that the value of the property allegedly stolen was not sufficient to constitute grand larceny. Jones also asserted that if her attorney had conducted an investigation, then he would have discovered that the value of the property did not amount to grand larceny. Consequently, Jones argued that she received ineffective assistance of counsel. Jones also argued that her guilty plea was not voluntarily entered and that she was not informed of the maximum and minimum penalties.

¶ 6. The circuit court held that Jones failed to prove that her guilty plea was entered involuntarily. The court also determined that Jones failed to prove ineffective assistance of counsel because she testified during the guilty plea hearing that she had adequate time with her attorney, and her lawyer also stated that he had adequate time to prepare for her case. The court further determined that, regardless of whether Jones was informed of the maximum and minimum penalties during the guilty plea hearing, the petition to enter a plea of guilty, which was signed by Jones, specifically stated the maximum and minimum penalties. Regarding Jones’s contention that the value of the stolen property was insufficient to constitute grand larceny, the court held that Jones waived her right to contest such issues of fact when she entered her plea of guilty. Consequently, the court found no merit in Jones’s claims and denied her motion for post-conviction relief on March 18, 2005. From that denial, Jones appeals.

¶ 7. On March 7, 2006, Jones filed a second motion for post-conviction relief asserting that she was not given an initial appearance or preliminary hearing, and that newly discovered evidence shows that she did not sign a waiver of arraignment and entry of plea form. The circuit court held that Jones’s motion was procedurally barred because it was successive. Notwithstanding the procedural bar, the court further determined that Jones’s claims were without merit. Specifically, the court held that, once Jones was indicted, her right to an initial appearance and preliminary hearing was waived. The court further held that the new evidence asserted by Jones did not fit under the new evidence exception to the procedural bar. Consequently, on March 20, 2006, the court dismissed Jones’s second motion for post-conviction relief. From this dismissal, Jones also appeals.

STANDARD OF REVIEW

¶ 8. When reviewing the denial of a motion for post-conviction relief, we will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Pace v. State, 770 So.2d 1052, 1053(¶ 4) (Miss.Ct.App.2000). However, where questions of law are raised, the applicable standard of review is de novo. Id.

ISSUES AND ANALYSIS

I. Whether Jones received ineffective assistance of counsel.

119. Citing numerous instances of alleged misconduct, Jones argues that she received ineffective assistance of counsel. She claims that her attorney failed to investigate the value of the stolen property and that he failed to interview potential witnesses. According to Jones, had her attorney conducted any investigation at all, he would have discovered that the value of the property was insufficient to constitute grand larceny. Jones also contends that she received ineffective assistance of counsel because her attorney never explained the charges to her, or the possible sentences associated with those charges.

¶ 10. The standard of review for a claim of ineffective assistance of counsel was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To bring a successful claim for ineffective assistance of counsel, pursuant to the court’s ruling in Strickland, the defendant must prove that his attorney’s overall performance was deficient and that this deficiency deprived him of a fair trial. Id. at 689, 104 S.Ct. 2052; Moore v. State, 676 So.2d 244, 246 (Miss.1996) (citing Perkins v. State, 487 So.2d 791, 793 (Miss.1986)). We must be mindful of the “strong but rebuttable presumption that an attorney’s performance falls within a wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic.” Covington v. State, 909 So.2d 160, 162(¶ 4) (Miss.Ct.App.2005) (quoting Stevenson v. State, 798 So.2d 599, 602(¶ 6) (Miss.Ct.App.2001)). To overcome this presumption, the defendant must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Woodson v. State, 845 So.2d 740, 742(¶ 9) (Miss.Ct.App.2003).

¶ 11. Jones’s allegations of ineffective assistance are contradicted by the sworn statements in her petition to enter a plea of guilty and her testimony during the guilty plea hearing. Jones acknowledged on the petition to enter a plea of guilty that her attorney was fully informed as to the facts and circumstances asserted in the indictment. She further acknowledged that her attorney advised her of the nature and elements of the charges, the possible defenses, and the maximum and minimum punishment. Jones also indicated on the petition that her lawyer was competent and that he had done all that anyone could do to counsel and assist her. During the guilty plea hearing, Jones testified that she had adequate time with her attorney and that she was satisfied with the work furnished to her by her attorney. Consequently, we find that there is nothing in the record to overcome the presumption that Jones received effective assistance of counsel. This issue is without merit. .

II. Whether Jones voluntarily entered her guilty plea to grand larceny.

¶ 12. A plea of guilty is binding upon a defendant only if the defendant entered the plea voluntarily and intelligently. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992) (citing Myers v. State, 583 So.2d 174, 177 (Miss.1991)). A guilty plea is voluntary and intelligent only if the defendant has been advised “concerning the nature of the charge against him and the consequences of the plea.” Id. (citing Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991)). More specifically, the defendant must be informed that by pleading guilty he waives the following: (1) his right to a jury trial, (2) his right to confront adverse witnesses, and (3) the right to protection against self-incrimination. Id. (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). Pursuant to Rule 8.04(A)(4)(b) of the Uniform Rules of Circuit and County Court, the trial court must also “inquire and determine ... that the accused understands ... the maximum and minimum penalties provided by law.”

¶ 13. Jones asserts that her guilty plea to grand larceny was not entered voluntarily and intelligently because she was “induced by fear of a greater sentence” to plead guilty even though she was not guilty. Jones further asserts that she was never informed of the minimum and maximum penalties for grand larceny. ' We disagree.

¶ 14. During the guilty plea hearing, Jones testified that she was pleading guilty freely and voluntarily, and that no one tricked her or made any promises that the court would be lenient in order to induce her to plead guilty. The court also explained to Jones that by pleading guilty she waived her right to a jury trial, the right to confront adverse witnesses and to call witnesses on her behalf, as well as the right against self-incrimination. Jones testified that she understood that she was waiving those rights. Furthermore, in her petition to enter a plea of guilty, Jones acknowledged that she was waiving the aforementioned rights, as well as the right to appeal to the Mississippi Supreme Court with assistance of counsel. Jones also acknowledged in the petition that she had been informed of the minimum and maximum punishment for grand larceny, and that the court could impose a sentence from zero to five years and a fine in the amount of $0 to $1,000. ■ Therefore, this issue is without merit.

III. Whether the circuit court had subject matter jurisdiction.

¶ 15. Jones contends that the value of the stolen property was insufficient to constitute grand larceny. Jones specifically asserts that the price range for the digital camera was $219 to $448. Based on these figures, Jones further asserts that the circuit court did not have jurisdiction over a charge that amounted to petit larceny.

¶ 16. The law is well settled that when properly entered and accepted, “[a] guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt.” Carpenter v. State, 899 So.2d 916, 920(¶ 16) (Miss.Ct.App.2005) (quoting Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989)). Entry of a guilty plea does not waive the following: (1) failure to charge a necessary element of the crime, or an essential element of a criminal offense, and (2) lack of subject matter jurisdiction. Beene v. State, 910 So.2d 1152, 1154(¶ 7) (Miss.Ct.App.2005) (citing Jefferson, 556 So.2d at 1019).

¶ 17. We are unpersuaded by Jones’s challenge the circuit court’s subject matter jurisdiction. Pursuant to Article VI, Section 156 of the Mississippi Constitution of 1890, circuit courts have “original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court.” Furthermore, under Mississippi law, circuit courts have original jurisdiction to hear cases on grand jury indictment. Collins v. State, 594 So.2d 29, 32 (Miss.1992) (citing Young v. State, 140 Miss. 165, 167, 105 So. 461, 461-62 (1925)). Moreover, a criminal defendant who has entered a guilty plea cannot litigate his actual guilt on appeal from a denial of post-conviction relief, unless the defendant can show that the guilty plea was not knowingly, voluntarily, or intelligently entered. Graham v. State, 914 So.2d 1256, 1259(¶ 8) (Miss.Ct.App.2005) (citing Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976)). Because we find that Jones’s guilty plea was entered voluntarily, we also find that she has waived the right to litigate her actual guilt on appeal. Therefore, this issue is without merit.

IV. Whether Jones is entitled to post-conviction relief because newly discovered evidence proves that her signature on the waiver of arraignment and entry of plea form was forged.

¶ 18. In her second motion for post-conviction relief, Jones asserts that she was not given an initial appearance and that newly discovered evidence shows that she never signed the waiver of arraignment form and entry of plea form. The circuit court determined that Jones’s second motion for post-conviction relief was barred as a successive writ, pursuant to Mississippi Code Annotated section 99-39-23(6) (Supp.2006). Citing Taylor v. State, 744 So.2d 306, 319(¶ 52) (Miss.Ct.App.1999) and Rule 6.05 of the Uniform Rules of Circuit and County Court, the circuit court further held that, notwithstanding the procedural bar, Jones’s motion was wholly without merit because the right to an initial appearance and preliminary hearing is deemed waived upon indictment. We agree.

¶ 19. Mississippi Code Annotated section 99-39-23(6) (Supp.2006) provides that an order denying post-conviction relief is a final judgment, unless reversed, and that it bars a successive motion for post-conviction relief. Mississippi Code Annotated section 99-39-23(6) also provides several exceptions to this procedural bar, including “those cases in which the prisoner can demonstrate ... that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction of sentence.” Jones’s newly discovered evidence consists of a report from a handwriting expert who finds “indications” that Jones did not write the signature on the waiver of arraignment and entry of plea form. We agree with the circuit court that this is not the type of new evidence contemplated by Mississippi Code Annotated section 99-39-23(6). Moreover, Jones entered a plea of guilty in open court. Therefore, this issue is without merit.

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

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


author: IRVING, J.,

text:
    Alex BRADLEY a/k/a Alex Dewon Bradley, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00806-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.
    David L. Walker, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Alex Dewon Bradley was convicted in the Circuit Court of Panola County of aggravated assault and sentenced to eight years in the custody of the Mississippi Department of Corrections. He appeals and asserts that the trial court abused its discretion by denying him his state and federal constitutional right to confront a witness against him at trial and that the trial court erred in overruling his objection to the introduction of a crime scene photograph.

¶ 2. We find no error in Bradley’s allegations; therefore, we affirm.

FACTS

¶ 3. On December 27, 2003, Bradley shot Clifton Jackson in his left leg following an argument. Bradley and Jackson were former classmates at Northwest Mississippi Community College in Senatobia, Mississippi. The dispute arose after Bradley learned that Jackson had been conversing with Bradley’s girlfriend, Cynthia Harris.

¶ 4. On the day of the shooting, the men exchanged several cellular telephone calls, before agreeing to meet at a Popeyes restaurant. At trial, Jackson testified that he and Bradley agreed to meet at a Popeyes in Senatobia, Mississippi; however, Bradley testified that he told Jackson to meet him at a Popeyes in Batesville, Mississippi, where Harris was employed. When Jackson arrived at the restaurant in Senatobia, Bradley was not there, so Jackson headed back to Batesville. Jackson testified that while en route to Batesville he received a message on his cellular telephone from Bradley. Jackson claims that during the message Bradley threatened the life of Jackson’s girlfriend, Sheranda Sessum, and the couple’s newborn son. However, Bradley denied making such a threat.

¶ 5. Jackson further testified that when he returned Bradley’s call, Bradley informed him that he was in the parking lot of a Fred’s store in Batesville. Jackson stated that he agreed to meet Bradley because he thought that they were simply going to engage in a fistfight. When Jackson arrived at the Fred’s parking lot, Bradley was sitting in the driver’s seat of Harris’ vehicle. Bradley had a loaded nine-millimeter handgun underneath his seat. According to Jackson, as he approached the driver’s side of the vehicle, Bradley stated that he would shoot Jackson if Jackson hit him. Jackson stated on cross-examination that “I was going to hit him or he was going to get out or something.” Notwithstanding Jackson’s intentions, it is undisputed that Jackson, who weighed around two hundred pounds at the time of the shooting, never hit Bradley, and did not have a weapon at any time during the altercation. Jackson testified that as he approached the vehicle, Bradley cocked the gun and stated, “I told you I would get you.” Bradley then fired the gun at Jackson.

¶ 6. Shaun Douglas, a passenger in Jackson’s vehicle at the time of the shooting, testified that the men began to argue and that Jackson tried to snatch the gun away from Bradley, who had it pointed at Jackson’s chest. Douglas also stated that Bradley re-positioned the vehicle in order to get a better aim at Jackson. While remaining in the vehicle, Bradley fired the gun at Jackson, striking him in the leg.

¶ 7. Bradley testified that he never intended to fight Jackson, stating that he told Jackson to meet him at Popeyes so that he, Harris, and Jackson could work out their problems. However, Bradley testified that when Jackson arrived at the Fred’s parking lot, he approached Harris’ vehicle and Jackson was “ready to pull [him] out.” Bradley stated that he was “defending [his] space,” because he was afraid that he would have been severely beaten by Jackson or he would have been shot by Jackson’s brother.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Cross-Examination of Victim

¶ 8. Bradley contends that the trial court abused its discretion in limiting his cross-examination of Jackson, as reflected by the following exchange:

Q. What were you going to do?
A. He called me. He wanted to fight. I’m thinking we’re fixing to fight until he sitting in the car talking about he was going to shoot me.
Q. Were you going to jerk him out of the car and make him fight you or what?
A. I was going to hit him or he was going to get out or something.
Q. Sir?
A. Yes.
Q. Does a man in Mississippi have a right to self-defense?
[ATTORNEY FOR THE STATE]: Objection, Your Honor. .
THE COURT: Sustained.

¶ 9. Bradley contends that by sustaining the State’s objection the trial court denied him the right to confront a witness against him, in violation of the Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution of 1890. The State contends that Bradley waived this issue because he failed to make a contemporaneous objection at trial. We find that the State is mistaken in this contention, for the responsibility to provide an explanation for the objection rested with the State, rather than the defense. Notwithstanding the fact that the State provided no such explanation, we find that the question was improper, as it called for a conclusion of law. Therefore, this issue is without merit.

2. Admission of Crime Scene Photograph

¶ 10. In this allegation of error, Bradley contends that the trial court admitted into evidence a photograph depicting fresh blood on the pavement of the Fred’s parking lot, in violation of the rules of evidence. Specifically, Bradley contends that the photograph was admitted in violation of Rules 401, 402, and 403. Bradley argues that the photograph was improperly admitted because “the proof had already been established that Mr. Jackson had been shot and that the introduction of this photograph into evidence would only go to prejudice the jury in favor of the Appel-lee.”

¶ 11. We find that the photograph is clearly relevant within the meaning of Rules 401 and 402. In addition, it appears to this Court that Bradley agrees that the photograph is relevant, as evidenced by his argument that the trial court violated Rule 403, in addition to Rules 401 and 402. We note that Rule 403 applies to only relevant evidence.

¶ 12. Mississippi law is well settled that “the admissibility of photographs rests within the sound discretion of the trial judge.” Mangum v. State, 762 So.2d 337, 344(¶ 22) (Miss.2000) (quoting Westbrook v. State, 658 So.2d 847, 849 (Miss.1995)). A trial judge’s decision to admit photographs “will not be disturbed absent an abuse of discretion.” Westbrook, 658 So.2d at 849 (citing Herring v. State, 374 So.2d 784, 789 (Miss.1979)).

¶ 13. In denying Bradley’s posttrial motion alleging that admission of the photograph constituted prejudicial error, the trial judge stated, “[i]t was simply a crime scene photograph ... it was not particularly gruesome. There was nothing prejudicial about it in the context of the trial and the testimony about a gunshot wound.” We have viewed the photograph and agree with the trial judge that it was not prejudicial to Bradley in any way. This issue is without merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Harris and Jackson had previously been involved in a relationship.

      . Bradley was driving Harris’ vehicle because he did not own a vehicle at the time of the incident; however, Harris was not present when the shooting occurred.

      . Bradley claims that an individual other than Douglas was present when the shooting occurred and that individual attempted to retrieve a gun from the trunk of Jackson’s vehicle. However, Bradley did not know this individual’s name, and the State was unable to locate him.

      . Rule 401 of the Mississippi Rules of Evidence provides, “ '[rjelevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
      Rule 402 provides, "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Mississippi, or by these rules. Evidence which is not relevant is not admissible.”
      Rule 403 provides, "[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.”


text:
    Molly Montgomery JONES, Appellant v. MISSISSIPPI STATE UNIVERSITY, Appellee.
    No. 2006-CA-00223-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.

      Jennifer P. Burkes, Gulfport, Mark Andrew Cliett, West Point, attorneys for appellant.
    Jennifer G. Rush, Johnnie M. Haley, Amory, attorneys for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Molly Montgomery Jones filed a complaint against Mississippi State University and other unknown individuals, alleging that she suffered personal injuries and damages while a business invitee on the campus of Mississippi State University (MSU), in Starkville. The Oktibbeha County Circuit Court dismissed the complaint because of Jones’ failure to comply with Mississippi Rule of Civil Procedure 4(d)(5). Aggrieved, Jones appeals, asserting that the circuit court erred in dismissing her complaint for lack of timely service of process, and that the court erred in failing to grant an extension of time to allow her to properly serve process upon the Attorney General of the State of Mississippi.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On November 15, 2004, Jones filed a complaint, alleging that she suffered personal injuries and damages while on the campus of MSU. On March 9, 2005, service of process was made upon J. Charles Lee, then president of MSU, rather than upon the Attorney General of the State of Mississippi, as required by Rule 4(d)(5) of the Mississippi Rules of Civil Procedure. On April 8, 2005, MSU filed a motion to dismiss claiming insufficiency of process and insufficiency of service of process. Jones served the Attorney General with process on May 31, 2005, more than seventy days after the expiration of the 120-day time period mandated by Rule 4(h) of the Mississippi Rules of Civil Procedure for serving complaints and summonses. The circuit court sustained the University’s motion to dismiss and denied Jones’ motion for an extension of time to properly serve.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 4. We use a de novo standard when reviewing a trial court’s grant or denial of a motion to dismiss. Delta & Pine Land Co. v. Burns, 926 So.2d 901, 904(¶ 10) (Miss.2006) (citing Harris v. Miss. Valley State Univ., 873 So.2d 970, 988(¶ 54) (Miss.2004)).

¶ 5. Jones contends that she is entitled to relief from the circuit court’s ruling because she “held a good faith belief that she had properly served the defendant and therefore did not ask for additional time within 120 days.” Rule 4(h) of the Mississippi Rules of Civil Procedure provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

Jones supports her contention by arguing that service upon MSU’s president was merely defective, and was not a total want of service; thus, the trial court should have granted her motion for additional time to serve the Attorney General. Jones claims that, “it is undisputed that the Appellee received actual notice of the suit pursuant to a properly executed Summons and Complaint, and that the Appel-lee received such Summons and Complaint within the required 120[day] time period.” Despite Jones’ contention, the Mississippi Supreme Court has held that “[t]o establish good cause the plaintiff must demonstrate at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.” Webster v. Webster, 834 So.2d 26, 28(¶ 4) (Miss.2002) (citing Peters v. United States, 9 F.3d 344, 345 (5th Cir.1993)).

¶ 6. While Rule 4(d)(5) requires that service on a state -institution be made by serving the Attorney General, Jones contends that this rule is ambiguous, claiming that MSU can be categorized as an institution, a corporation, or a political subdivision of the State, thus making service upon MSU’s president acceptable in compliance with Rule 4(d)(4). Jones also contends that service under 4(d)(8) on MSU is acceptable.

¶ 7. We find no ambiguity in Rule 4(d)(5). The Mississippi Rules of Civil Procedure clearly state that service of process shall be made, “[u]pon the State of Mississippi or any one of its departments, officers or institutions, by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi.” M.R.C.P. 4(d)(5) (emphasis added). Jones relies on Public Employees’ Retirement System of Mississippi v. Dillon, 538 So.2d 327 (Miss.1989), as support for her argument that “MSU was incorporated by an act of the Legislature and exists as a ‘body politic and corporate ’ by the name of Mississippi State University.” (citation omitted). However, in Dillon, the Mississippi Supreme Court stated, “if the defendant is a department or institution of the State of Mississippi, effective service of process may be had only by sheriff or process server by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi.” Dillon, 538 So.2d at 328 (emphasis added).

¶ 8. We agree with the circuit court’s finding that “Mississippi State University is definitively identified as an institution of the state of Mississippi by Mississippi law, therefore service of process is dictated by MRCP 4(d)(5) and not MRCP 4(d)(4).” (citations omitted). Mississippi Code Annotated section 37-101-1 (Rev. 2001), provides that “[t]he following state institutions of higher learning, namely: ... Mississippi State University of Agriculture and Applied Science ... shall be under the management and control of a board of trustees to be known as the board of trustees of state institutions of higher learning.” (emphasis added). In addition, Mississippi Code Annotated section 37-113-3 (Rev.2001), provides:

The state institution of higher learning, as incorporated by an act of the legislature, approved February 28, 1878, by the name of the “Agricultural and Mechanical College of Mississippi,” and established in pursuance of that act, shall continue to exist as a body-politic and corporate, by the name of the “Mississippi State University of Agriculture and Applied Science,” with all its property and the franchises, rights, powers, and privileges heretofore conferred on it by law, or properly incident to such a body and necessary to accomplish the purpose of its creation; said university may receive and hold all real and personal property conveyed to it for such purpose.

(emphasis added).

¶ 9. It is undisputed that Jones did not serve the Attorney General until well after the expiration of the 120-day period. It is also clear that Rule 4(d)(5), which we find is unambiguous, requires service on a state institution to be made on the Attorney General. Therefore, we hold that the circuit court did not err in finding that counsel has failed to show good cause or excusable neglect for failing to timely serve the Attorney General.

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

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Rule 4(d)(4) provides that service shall be had "[u]pon a domestic or foreign corporation ... which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.”

      . Rule 4(d)(8) provides that service shall be had [u]pon any governmental entity not mentioned above, by delivering a copy of the summons and complaint to the person, officer, group or body responsible for the administration of that entity or by serving the appropriate legal officer, if any, representing the entity. Service upon any person who is a member of the "group” or "body” responsible for the administration of the entity shall be sufficient.