author: ROBERTS, J., IRVING, J.,

text:
    In the Interest of L.C.A., a Minor.
    No. 2005-CA-00242-COA.
    Court of Appeals of Mississippi.
    Sept. 5, 2006.

      Charles E. Lawrence, attorney for appellant.
    Michael Wayne Thompson, attorney for appellee.
   ROBERTS, J.,

for the Court.

¶ 1. On January 26, 2005, the Jones County Youth Court found that L.C.A. qualified as a delinquent child. Later that same day, the court held a disposition hearing and placed L.C.A. in the custody of the Mississippi Department of Human Services — -Youth Services for placement at a training school. Aggrieved, L.C.A. appeals and raises three issues, listed verbatim:

I.WHETHER OR NOT THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT L.C.A. COMMITTED A DELINQUENT ACT AS REQUIRED BY MISSISSIPPI CODE ANNOTATED § 43-21-561.

II. WHETHER OR NOT THE COURT ERRED IN FAILING TO ADVISE L.C.A. AND HIS MOTHER AT THE BEGINNING OF THE ADJUDICATORY HEARING OF THOSE MATTERS TO WHICH THEY WERE REQUIRED TO BE INFORMED OF PURSUANT TO MISSISSIPPI CODE ANNOTATED § 43-21-557 AND BY FAILING TO COMPLY WITH THE REQUIREMENTS OF MISSISSIPPI CODE ANNOTATED § 43-21-601.

III. WHETHER OR NOT THE COURT CONSIDERED EVIDENCE IN REACHING ITS DECISION AFTER THE ADJUDICATORY HEARING THAT HAD NOT BEEN FORMALLY INTRODUCED INTO EVIDENCE.

FACTS

¶2. On November 3, 2004, L.C.A., a student at Pinebelt Alternative School in Laurel Mississippi, became disorderly and disturbed Mr. Matthew Mauldin’s classroom. The Jones County Youth Court was contacted, and the judge issued a custody order to take L.C.A. into custody and have him placed in detention. Deputy Carroll Windham arrived to remove L.C.A. from the school and transport him to the juvenile detention center. As Deputy Windham removed L.C.A. from the school, L.C.A. became enraged and disorderly towards another teacher, Mr. Bart Gavin. L.C.A. shouted at Mr. Gavin and called Mr. Gavin a “m_f_” Additionally, L.C.A. kneed Deputy Windham in the groin area as Deputy Windham attempted to place L.C.A. in the patrol car. Once he arrived at the detention center, L.C.A. tested positive for marijuana. On December 15, 2004, a petition was filed in Jones County Youth Court that charged L.C.A. with disorderly conduct. On January 5, 2005, the youth court conducted an adjudicatory hearing during which L.C.A. denied the conduct. The youth court rescheduled the delinquency hearing for January 26, 2005.

¶ 3. At the scheduled delinquency hearing, Mr. Gavin, the teacher towards whom L.C.A. directed profanities, and Mr. Mack-ey Knight, the security officer at Pinebelt, each testified to L.C.A.’s conduct. They both testified that L.C.A. acted disorderly before he began to shout profanities. L.C.A. started resisting arrest, even though he was handcuffed, and he had to be physically controlled and placed into Deputy Windham’s car.

¶ 4. L.C.A. testified in his defense. L.C.A. denied that he called Mr. Gavin a “m_f_Instead, L.C.A. testified that he said, “[t]his is a m_f_ing shame” during the disturbance. L.C.A.’s mother testified in her son’s defense. L.C.A.’s mother attributed L.C.A.’s behavior on the fact that he was sick. According to L.C.A.’s mother, antibiotics influenced L.C.A.’s behavior.

¶ 5. After hearing the evidence, the youth court found that L.C.A. qualified as a delinquent child. The youth court judge conducted a disposition hearing after the adjudication hearing. The youth court judge considered L.C.A.’s adjudication as a delinquent child, as well as L.C.A.’s previous adjudication as a child in need of supervision, and committed L.C.A. to the Mississippi Department of Human Services — Youth Services for placement at a training school.

STANDARD OF REVIEW

¶ 6. Our standard of review in youth court cases is limited. In Interest of D.K.L., 652 So.2d 184, 189 (Miss.1995). We consider all the evidence presented .to the youth court in the light most favorable to the State. Id. If the evidence is such that, beyond a reasonable doubt, reasonable men could not have reached the youth court’s conclusion, we must reverse. Id. However, if the evidence in the record supports the youth court’s adjudication, considering the reasonable doubt standard, then we must affirm. In Interest of I.G., 467 So.2d 920, 924 (Miss.1985).

I. WHETHER OR NOT THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT L.C.A. COMMITTED A DELINQUENT ACT AS REQUIRED BY MISSISSIPPI CODE ANNOTATED § 43-21-561.

¶ 7. In his first issue, L.C.A. makes two arguments: (a) that he was unlawfully arrested, and (b) that the evidence was insufficient to adjudicate him as a delinquent child. We first address L.C.A.’s argument for unlawful arrest.

¶ 8. L.C.A. submits that the State never explained the nature of the conduct for which Deputy Windham responded to Pinebelt to remove L.C.A. from the school and then detain him. L.C.A. notes that the December 15, 2004 petition charged him with disorderly conduct incident to his behavior as Deputy Windham removed him from the school, rather than his behavior prior to his removal. That is, L.C.A.’s adjudication as a delinquent child did not originate from his behavior in class — it originated from his behavior as he was removed from class. Nevertheless, L.C.A. concludes that he was arrested unlawfully. We disagree.

¶ 9. Under certain circumstances, a law enforcement officer may rely on probable cause to place a child into custody. ' A law enforcement officer may take a child into custody when the officer has probable cause to believe custody is necessary or when the officer can find no reasonable alternative to custody. Miss.Code Ann. § 43 — 21—303(l)(a) (Rev.2004). It is necessary to take a child into custody when a child’s actions would endanger himself or others. Miss.Code Ann. § 43 — 21—301(3)(b) (Rev.2004). However, Deputy Windham did not respond based on independent probable cause. Deputy Windham responded incident to a youth court order. L.C.A. caused a disturbance in Mr. Matthew Mauldin’s classroom significant enough to warrant contacting the youth court judge. The youth court judge issued a custody order and directed that Deputy Windham take L.C.A. into custody. We therefore do not find that L.C.A. was subjected to an unlawful arrest.

¶ 10. As mentioned, L.C.A. claims that his actions were not severe enough to qualify as a delinquent child. A delinquent child is a child over ten years old who has committed a delinquent act. Miss.Code Ann. § 43-21-105® (Rev.2004). An act qualifies as a delinquent act if that act would amount to a federal or state crime if committed by an adult. Miss.Code Ann. § 43-21-105® (Rev.2004). L.C.A., then sixteen years old, was charged with violating Mississippi’s law that prohibits disorderly conduct, listed at Section 97-35-3 of the Mississippi Code. Pursuant to Section 97 — 35—3(l)(b):

Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby ... insults or makes rude or obscene remarks or gestures, or uses profane language, or physical acts, or indecent proposals to or toward another or others, or disturbs or obstructs or interferes with another or others ... shall be guilty of disorderly conduct.

According to our standard of review, we must assume that, as Deputy Windham removed L.C.A. from the school, L.C.A. struggled, acted belligerently, resisted arrest — even while wearing handcuffs, kneed Deputy Windham in the groin and called Mr. Gavin a “m_f_” Even if we assumed that L.C.A. did not intend to provoke a breach of the peace with language profane enough to cause us to refrain from repeating it, there is no doubt that, under the circumstances, a breach could result from L.C.A.’s use of profane language. Bearing our standard of review in mind, we affirm the youth court’s decision to adjudicate L.C.A. as a delinquent child.

¶ 11. The dissent reasons that “[i]t is more than a stretch to conclude that circumstances are ripe for a breach of the peace when the would-be instigator is a handcuffed sixteen-year old child being ushered in a patrol car by sheriff deputies.” L.C.A.’s age has little bearing on whether a breach of the peace could occur under the circumstances. There is no evidence that, based on his age, L.C.A. could not have intended to provoke a breach of the peace. A reasonable fact finder, such as the judge in this case, could well conclude that L.C.A.’s conduct under the circumstances could likely lead to a breach of the peace. Compounded with the evidence that L.C.A.’s language could have occasioned a breach of the peace, we find no reversible error.

¶ 12. L.C.A. argues that educators have a duty to attempt to calm situations, rather than escalate them. It would certainly be unreasonable to allow educators to provoke escalated outbursts, but that is not what occurred at Pinebelt that day. There is no evidence that Mr. Gavin or any other educator at Pinebelt escalated the situation. L.C.A. seems to suggest that educators should not only expect a student to exclaim profanities towards them as that student attempts to injure a law enforcement officer, L.C.A. also suggests that educators should calmly accept that behavior. However, L.C.A. provides no support for his illogical suggestion. L.C.A.’s conduct was unacceptable regardless of his child status. We find L.C.A.’s argument entirely meritless.

II. WHETHER OR NOT THE COURT ERRED IN FAILING TO ADVISE L.C.A. AND HIS MOTHER AT THE BEGINNING OF THE ADJUDICATORY HEARING OF THOSE MATTERS TO WHICH THEY WERE REQUIRED TO BE INFORMED OF PURSUANT TO MISSISSIPPI CODE ANNOTATED § 43-21-557 AND BY FAILING TO COMPLY WITH THE REQUIREMENTS OF MISSISSIPPI CODE ANNOTATED § 43-21-601.

¶ 13. In this issue, L.C.A. claims that the youth court failed to comply with Mississippi law when it did not advise him of all of his rights at the January 26, 2005 hearing. Section 43-21-557 of the Mississippi Code requires a youth court judge to inform an alleged juvenile offender of his rights. Miss.Code Ann. § 43-21-557 (Rev. 2004). Specifically, Section 43-21-557(l)(e) provides, “At the beginning of each adjudicatory hearing, the youth court shall ... explain to the parties ... (i) the right to counsel; (ii) the right to remain silent; (iii) the right to subpoena witnesses, (iv) the right to cross-examine witnesses testifying against him; and (v) the right to appeal.”

¶ 14. The record indicates that the youth court conducted L.C.A.’s initial hearing on January 5, 2005. The record contains a copy of a summons that was served on L.C.A.’s mother. Among other things, that summons informed L.C.A.’s mother that L.C.A. had the right to be represented by counsel and the right to subpoena witnesses. The record also contains an order by which the youth court appointed counsel to represent L.C.A.

¶ 15. The dissent is of the opinion that the youth court committed reversible error because the record does not indicate that the youth court complied with Section 43-21-557 of the Mississippi Code. The dissent relies on In re J.N., 915 So.2d 1076 (Miss.Ct.App.2005). In that case, this Court found that the record contained no evidence that a youth court advised J.N.’s parents of the rights listed under Section 43-21-557(l)(d) and (e). Id. at (¶ 11). At the adjudication hearing, J.N. was represented by counsel, but J.N.’s attorney and J.N.’s parents admitted that J.N. stabbed another child in the chest. Id. In finding that reversible error resulted due to the youth court judge’s failure to comply with Section 43-21-557, this Court relied on In re I.G., 467 So.2d 920 (Miss.1985). In re J.N., 915 So.2d at (¶ 14).

¶ 16. In In re I.G., a youth court judge interrogated I.G.’s parents, unrepresented by counsel, and never informed them of their rights to counsel or to remain silent. A citation for contempt against I.G.’s parents resulted from the youth court judge’s interrogation. This Court noted that, in In re I.G., the record from the youth court hearing contained no evidence that the youth court met the procedural requirements of Section 43-21-557 in that the youth court did not inform I.G.’s parents that they had a right to counsel and the right to appeal the youth court determination. In re I.G. held that the youth court has a mandatory duty to comply with Section 43-21-557 and that failure to comply necessitated reversal. Id.

¶ 17. In re J.N. discussed In re I.G. and then found that a youth court must explain the purpose of a hearing, disposi-tional alternatives, the fact that parties have a right to counsel, to remain silent, to subpoena witnesses, to cross-examine witnesses, and to appeal. In re J.N., 915 So.2d at (¶ 16) (citing Miss.Code Ann. § 43-21-557; In re T.L.C., 566 So.2d 691, 699 (Miss.1990)). Accordingly, In re I.G. and In re J.N. stand for the proposition that reversible error results where a youth court fails to comply with Section 43-21-557. However, other authority indicates that a youth court’s failure to comply with Section 43-21-557 does not necessarily result in automatic reversal.

¶ 18. The dissent’s authority for reversal, In re J.N., partially relied on In re T.L.C., 566 So.2d 691. In In re T.L.C, an appellant claimed that reversible error resulted where a youth court judge never advised him of the rights listed in Section 43-21-557. Id. In re T.L.C. discussed In re I.G.. Id. Unlike In re J.N.’s interpretation of In re I.G., the Mississippi Supreme Court held that “[wjhile conscientious practice counsels that the youth court follow the procedure concerning notification of parties’ rights, [the appellant could] point to no denial of any right that would make the hearings any less than fair.” Id. The supreme court found distinguishing facts in that the appellant in In re T.L.C. was represented by counsel and that his counsel “vigorously cross-examined the witnesses called by the youth court prosecutor.” Id. Having found such, the supreme court held that, even if the youth court judge’s failure to comply with Section 43-21-557 resulted in error, that error was harmless. Id.

¶ 19. Here, as in In re T.L.C., L.C.A. was represented by counsel. Dan Henson, one of the two youth court public defenders for the Jones County Youth Court, represented L.C.A. at both the January 5, 2005 hearing, as well as the January 26, 2005 hearing. We can presume with all justifiable confidence that an attorney appointed by the youth court judge as a public defender was familiar with the youth court law. There is no indication that L.C.A.’s trial counsel ever complained, at either hearing, of the youth court judge’s failure to explain Section 43-21-577 to his client. L.C.A’s counsel cross-examined witnesses and called witnesses on L.C.A.’s behalf in defense of the charge in the petition. L.C.A.’s appeal is presently before this Court, so L.C.A. certainly experienced no prejudice based on the youth court’s failure to specifically inform L.C.A. that he had the right to appeal. The record contains no indication that L.C.A. was denied any right that rendered the youth court hearing unfair. In fact, at no point in his brief does L.C.A. indicate just how the youth court proceedings were somehow unfair or how he was prejudiced by the youth court’s failure to comply with Section 43-21-557. As such, if any error resulted, it is harmless.

¶ 20. L.C.A. also argues that the youth court failed to comply with Mississippi Code Annotated § 43-21-601 (Rev. 2004) when it held a disposition hearing immediately after it adjudicated L.C.A. to be a delinquent child. However, Section 43-21-601 allows a youth court to conduct a disposition hearing immediately after an adjudicatory hearing unless a continuance is necessary. L.C.A. neither requested a continuance nor argued that a continuance was necessary. Accordingly, we find no merit to this issue.

III. WHETHER OR NOT THE COURT CONSIDERED EVIDENCE IN REACHING ITS DECISION AFTER THE ADJUDICATORY HEARING THAT HAD NOT BEEN FORMALLY INTRODUCED INTO EVIDENCE.

¶ 21. Finally, L.C.A. argues that the youth court erred when it considered his prior adjudication as a child in need of supervision for marijuana use during the disposition hearing on January 26, 2005. However, in conducting a disposition hearing, a youth court should consider relevant factors including the nature and number of the child’s prior adjudicated offenses. Miss.Code Ann. § 43-21-603(3)(c) (Supp. 2005). The youth court clearly did not err when it considered L.C.A.’s prior adjudication as a child in need of supervision because Mississippi law encourages the youth court to consider such a factor. Consequently, this issue is without merit. However, we may only affirm in part, as we face a problem with logistics and the peculiar circumstances of this case.

¶ 22. On February 1, 2005, L.C.A. filed a motion for a supersedeas bond pending appeal. On February 14, 2005, the youth court judge granted L.C.A.’s motion. Apparently L.C.A. has been released from custody pending this appeal. L.C.A.’s date of birth is February 21,1988. L.C.A.’s eighteenth birthday was February 21, 2006. Mississippi law prohibits any court from sentencing an offender over the age of eighteen to the custody of the Division of Youth Services for placement in a state supported training school. Miss. Code Ann. § 43-21-159(5) (Rev.2004). As such, we can only affirm in part.

¶ 23. Still, there are other dispositional alternatives available to the youth court. Miss.Code Ann. § 43-21-605 (Supp.2005). Accordingly, we affirm in part and remand in part for a new dispositional hearing which excludes the possibility of placement in a state-supported training school.

¶ 24. THE JUDGMENT OF THE JONES COUNTY YOUTH COURT IS AFFIRMED AND REMANDED FOR A NEW DISPOSITIONAL HEARING WHICH EXCLUDES PLACEMENT IN A STATE-SUPPORTED TRAINING SCHOOL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

IRVING, J.,

Dissenting.

¶ 25. With respect, I must dissent from the majority’s finding that the Youth Court of Jones County complied with the procedural requirements of Mississippi Code Annotated section 43-21-557 (2004) in adjudicating L.C.A. a delinquent child. I further dissent from the majority’s finding that the evidence was sufficient to support the court’s judgment of delinquency.

¶26. The record does not contain any evidence that the youth court complied with the dictates of section 43-21-557, as required by law, at the commencement of L.C.A.’s adjudicatory hearing on January 26, 2005.

¶ 27. Prior to January 26, 2005, L.C.A. had two charges pending against him, one in Cause No. 60582-1 and one in 60582-2. The record reflects that both of these cause numbers were scheduled for adjudicatory hearing on January 5, 2005. However, on January 5, L.C.A. admitted the allegations in Cause No. 60582-1 but denied the allegations contained in Cause No. 60582-2. By a form order entered January 5, Cause No. 60582-2 was continued for adjudicatory hearing on January 26, 2005.

¶ 28. In my view, the pivotal finding of the majority — that “the initial hearing was held on January 5, 2005, where the court complied with [section 43-21-557]” — enjoys no support in the record before this Court. As stated, the record does contain a form order signed January 5, 2005, by the youth court judge, wherein Cause No. 60582-2, the case that is before us in this appeal, was continued to January 26. In this form order, the court finds certain facts, the existence of which is a prerequisite to the court’s acceptance of the parties’ admission of the factual allegations contained in Cause No. 60582-1. The form order also finds a limited number of the conditions that section 43-21-557 requires must be explained or determined by the youth court judge “[a]t the beginning of each adjudicatory hearing.” However, it is clear that the form order was executed to comply with the requirements of Mississippi Annotated section 43-21-553 (Rev.2004) rather than the requirements of section 43-21-557. We have no transcript of the hearing held on January 5. Therefore, the majority’s finding, that the trial court, at the January 5 hearing, complied with the procedural requirements of section 43-21-557, is perplexing.

¶ 29. At the beginning of the adjudicatory hearing from which this appeal emanates, the record reflects the following proceedings occurred:

THE COURT: L.C.A., Case Number 6058-1A and 6058-2. We are here today for a disposition in 6058-1A and an evidentiary hearing on 6058-2. Is the State ready?
MR. THOMPSON: Yes sir.
THE COURT: Is the juvenile ready?
MS. GRAHAM: Yes, sir.
THE COURT: Please come forward to be sworn in, Mr. Gavin.
[Thereafter, the evidentiary portion of the adjudicatory hearing began.]

The quoted passage demonstrates beyond doubt that the court failed to comply with the procedural requirements of section 43-21-557 when it commenced the adjudicatory hearing in Cause No. 6058-2. As already noted, we have no transcript of the January 5 hearing, but assuming the January 5 order reflects the scope of the discussion at the January 5 hearing, there is still no doubt that the procedural requirements of section 43-21-557 were not met. For example, there is nothing in the January 5 order indicating that the items enumerated in 43 — 21—557(l)(e)(ii) through (v) were explained to L.C.A.

¶ 30. In In the Interest of J.N., 915 So.2d 1076 (Miss.Ct.App.2005), we reversed the youth court for failing to follow the dictates of section 43-21-557. There, we held:

A child in youth court proceedings is entitled to certain due process rights that cannot be ignored. Sharp v. State, 127 So.2d 865, 869 240 Miss. 629, 638(1961). At the beginning of an adjudication hearing, the youth court must explain to the parties the purpose of the hearing, the possible disposition alternatives, the right to counsel, the right to remain silent, the right to subpoena witnesses, the right to cross-examine witnesses testifying against him, and the right to appeal. Miss.Code Ann. § 43-21-557 (Rev.2004); In re T.L.C., 566 So.2d 691, 699 (Miss.1990).
For these reasons, we find that this case should be reversed and remanded for further proceedings consistent with this opinion.

Id. at 1079-80 (¶¶ 15-16). We found that our decision was controlled by the supreme court decision of In re I.G., 467 So.2d 920 (Miss.1985). Id. at 1079(¶ 14).

¶ 31. The majority dismisses the importance of our holding in In the Interest of J.N. by citing to the supreme court holding in In re T.L.C., 566 So.2d 691, 699 (Miss.1990). The majority is correct that in In re T.L.C., the Mississippi Supreme Court held that the failure of the youth court to follow the dictates of section 43-21-557 was harmless error. However, it should be noted that In re T.L.C. is distinguishable from our case in that In re T.L.C. involved the failure of the youth court to advise the father of the minor child, where the issue was abuse of the father, while our case involves the failure of the youth court to advise the youthful defendant, where the issue is delinquency. In delinquency cases, the juvenile defendant runs the risk of being committed to a training school, while in abuse cases, the minor child may be removed from the home, but the parent does not risk being sent to jail. Further, in In re T.L.C., the Mississippi Supreme Court did not overrule In re I.G. and specifically noted that In re I.G. relied on three delinquency cases as support for its holding. In Re T.L.C., 566 So.2d at 699. Therefore, In re I.G. remains good law.

¶ 32. I now turn to L.C.A.’s second issue, the insufficiency of the evidence to support the adjudication that he committed the delinquent act of disorderly conduct. The gravamen of the petition against L.C.A. charged: L.C.A. “did purposefully, knowingly, and unlawfully commit the act of disorderly conduct: breach of peace in violation of [section] 97-35-3 of the Mississippi Code of 1972, annotated, against the peace and dignity of the State of Mississippi. L.C.A. behaved disorderly at the Pine Belt Alternative School, Laurel, MS, by calling Mr. Gavin a

¶ 33. The record reflects that the total evidence offered by the county prosecutor in support of the charge consisted of the brief testimony of two witnesses. The first witness, Gavin, testified as follows:

Q. Okay. Now, the disorderly conduct arose from the deputies coming out and picking him up;—
A. Yes, sir.
Q. —is that correct?
A. Yes, sir.
Q. Tell us what happened.
A. They were taking him [L.C.A.] to the car — had him in handcuffs and [L.C.A.] got upset and said the handcuffs were too tight. He tried to knee the sheriff in the groin section — the deputy. He just went to cussing, and I told him, you know, to have his mother call me before he comes back to school. And at that time, he call me a very ugly name.
Q. Now, that’s the basis of this petition today, is that his behavior was disorderly towards you and the school.
A. Yes, sir.
Q. Tell us what it was that he exactly said toward you.
A. He called me a m_f.
Q. And was that directed towards you?
A. Yes, sir.
Q. And where were you at when he called you that?
A. I was standing outside as he was getting in the [patrol] car.

¶ 34. The second witness, Knight, a security officer at Pine Belt Alternative School, testified as follows:

Q. Okay. Officer Knight, on or about November 3rd of ’04,1 believe there was — L.C.A. was being arrested or being picked up on a pick-up order there at the school; is that correct?
A. Yes, sir, that’s correct.
Q. Tell us what happened in regard to any outburst he made while he was being picked up.
A. He had been arrested for disorderly conduct by Deputy Carroll Wind-ham. Myself, Mr. Gavin and Mr. Murphy were just sort of following them as they went out the door. He was — the deputy was taking him out to the patrol unit to transport him down here. All of a sudden, he just turned around, looked at Mr. Gavin and called him a m_f.
Q. What tone of voice did he use when he called him that?
A. A loud one. Shouted it back at him. And at that point, he even started resisting arrest and had to be physically controlled, even with cuffs on. And then he settled down, and we put him in the patrol car.

¶ 35. Mississippi Code Annotated section 97 — 35—3(l)(b) (Rev.2004), the code section which L.C.A. was charged with having violated, provides in pertinent part:

Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby:
$ ‡ ^ ‡
insults or makes rude or obscene remarks or gestures, or uses profane language, or physical acts, or indecent proposals to or toward another or others, or disturbs or obstructs or interferes with another or others,
* * * *
shall be guilty of disorderly conduct....

¶ 36. The pivotal inquiry is whether there was sufficient evidence to warrant a finding that L.C.A., while in handcuffs and being escorted by sheriff deputies, intended to provoke a breach of the peace when he uttered the infamous word or, if not, whether circumstances then existed under which a breach of the peace might have occurred. The majority spends little time addressing this crucial issue, finding that “[i]f such conduct was not with an intention to provoke a breach of the peace, then, certainly, a breach of the peace may have been occasioned thereby.” Majority opinion at (¶ 6). Respectfully, I cannot disagree more. It is more than a stretch to conclude that circumstances are ripe for a breach of the peace when the would-be instigator is being ushered in handcuffs to a patrol car by sheriff deputies. But more importantly, the petition filed against L.C.A., as any fair and reasonable reading of it reveals, charges that L.C.A. breached the peace and behaved disorderly by calling Gavin a m_The prosecution did not offer, and the record does not reveal, one scintilla of evidence that the peace was actually breached as a result of L.C.A.’s use of the “M” word, and, notwithstanding the charging language of the petition, calling another the “M” word, without more, does not constitute disorderly conduct within the meaning of section 97-35-3.

¶ 37. It seems the majority tacitly concedes that there is no evidence to support a finding that L.C.A., by calling Mr. Gavin the “M” word, intended to provoke a breach of the peace. As I have already suggested, it is indeed contorted logic to conclude that the handcuffed juvenile who was being escorted by sheriff deputies intended to provoke a breach of the peace unless he assumed that the deputies and Gavin would lose their composure and attack him. It is further contorted logic to assume that L.C.A. wanted to be physically assaulted or thought that a school official and a sheriff deputy, who were both by virtue of their positions required to protect him, would attack him. Therefore, as demonstrated, a fair analysis of the evidence compels the inescapable conclusion that the evidence was insufficient to support a finding that L.C.A. intended to provoke a breach of the peace when he called Mr. Gavin the “M” word. Likewise, based on the same reasoning and analysis just employed, I cannot agree that the evidence was sufficient to support a finding that the circumstances were such that a breach of the peace may have been occasioned by L.C.A.’s use of the “M” word. To conclude that, under the factual circumstances presented, a breach of the peace may have occurred is to conclude that law enforcement and school officials are likely to physically attack a student who verbally insults them, even if the student is handcuffed and under the physical control of a law enforcement official at the time of the verbal insult by the student.

¶ 38. While I find the evidence insufficient to support a finding that all of the elements of the crime of disorderly conduct were proved in this case, I hasten to add that I do not condone L.C.A.’s action. In fact, I believe the proof was sufficient to find that L.C.A. committed the delinquent act of public profanity within the meaning of Mississippi Code Annotated section 97-29^17 (2000) which prohibits cursing or the use of vulgar and indecent language in the presence of two or more persons. Had the petition charged L.C.A. with a violation of this section, I would affirm.

¶ 39. For the reasons presented, I dissent and would reverse and render.

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

      . Mississippi Code Annotated § 43-21-651(l)(Rev.2004) requires that on appeal only the initials of the minor shall appear. We, therefore, decline to identify the minor by name.

      . The outcome of L.C.A.’s urinalysis test led to a youth court adjudication in which the youth court adjudicated L.C.A. to be a "child in need of supervision.”

      . In considering whether a child is a delinquent or a child in need of supervision, the youth court may only consider evidence presented at the adjudication hearing. Miss. Code Ann. § 43-21-559 (Rev.2004).

      . Section 43-21-557 reads in part:
      (1) At the beginning of each adjudicatory hearing, the youth court shall:
      (a) verify the name, age and residence of the child who is the subject of the cause and ascertain the relationship of the parties, each to the other;
      (b) ascertain whether all necessary parties are present and identify all persons participating in the hearing;

        (c) ascertain whether the notice requirements have been complied with and, if not, whether the affected parties intelligently waived compliance in accordance with Section 43-21-507;
      (d) explain to the parties the purpose of the hearing and the possible dispositional alternatives thereof; and
      (e) explain to the parties:
      (i) the right to counsel;
      (ii) the right to remain silent;
      (iii) the right to subpoena witnesses;
      (iv) the right to cross-examine witnesses testifying against him; and
      (v) the right to appeal.
      (2) The youth court should then ascertain whether the parties before the youth court are represented by counsel. If a party before the youth court is not represented by counsel, the youth court shall ascertain whether the party understands his right to counsel. If the party wishes to retain counsel, the youth court shall continue the hearing for a reasonable time to allow the party to obtain and consult with counsel of his choosing. If an indigent child does not have counsel, the youth court shall appoint counsel to represent the child and shall continue the hearing for a reasonable time to allow the child to consult with his appointed counsel.

      . The order reads in pertinent part:
      Came on this day for adjudicatory hearing on the petition filed by the county prosecutor in this matter, and the Court finds and orders.
      1.That the Court declares the minor child indigent and Honorable Dan Henson and/or Honorable Billie Graham are appointed as Youth Court Public Defenders to represent the minor child; that Honorable Billie Graham is appointed to represent the child for the purpose of this hearing, and said child is represented by competent counsel and has had sufficient time to prepare for this hearing; and said minor child has been properly served with process.
      2. That all necessary parties are before the Court and the parent/guardian/custodian R.A, waives formal service of process and enters appearance in this hearing voluntarily, who the Court finds had legal custody at the time of this alleged offense; that all parties waive the right to have any hearing in this matter in the Second Judicial District of Jones County, Mississippi.
      3. That the parties present, including the minor child and parent/guardian/custodian, fully understand their rights and the potential consequences of the hearing, as well as admission, and the dispositional alternatives available to the Court.
      4. That the child having heard reading of the allegations in the petition said minor child denied Count I Cause No. 6058-2 and admitted Count I Cause No. 6058-1 and is hereby adjudicated CHIN
      IT IS ORDERED THAT Cause 6058-2 is set this day in open Court for evidentiary hearing as to Count No. 1. on the 26 day of January 2005 at 9:00 a.m. and minor and parent are ordered to appear on said day and time; Cause No. 6058-1 is set for disposition on January 26, 2005 at 9:00 a.m.

      . Section 43-21-553 reads in part:
      At any time after the petition has been filed, all parties to the cause may appear before the judge and admit the allegations of the petition. The judge may accept this admission as proof of the allegations if the judge finds that:
      (a)the parties making the admission fully understand their rights and fully understand the potential consequences of their admission to the allegations;
      (b) the parties making the admission voluntarily, intelligently and knowingly admit to all facts necessary to constitute a basis for court action under this chapter;
      (c) the parties making the admission have not in the reported admission to the allegation set forth facts that, if found to be true, constitute a defense to the allegation; and
      (d) the child making the admission is effectively represented by counsel.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Brett JONES, Appellant v. STATE Of Mississippi, Appellee.
    No. 2005-KA-01072-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.

      William C. Bristow, Tupelo, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Brett Jones, Jr. was convicted of murder in the Circuit Court of Lee County and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Jones appeals. Finding no error, we affirm.

FACTS

¶ 2. During August of 2004, Jones was living with his paternal grandparents, Ber-tis Jones and Madge Jones. Jones’s girlfriend, Michelle Austin, had run away from home in the first week of August 2004. Austin was staying mostly at Jones’s grandparents’ home, as well as at an abandoned fish restaurant near the home. One August 9, 2004, Bertis Jones discovered Austin in Jones’s bedroom and told her to get out of his house. Austin then ran to the fish restaurant. According to her testimony at trial, both Jones and his cousin, Jacob, later came and told her that Jones was “in big trouble” with his grandfather. Austin - testified that she asked Jones, “What are you going to do? Kill him?” Austin testified that Jones did not respond to this question. Austin also testified that Jones “said that he was going to hurt his granddaddy.”

¶ 3. Jones testified that at about 4 p.m., he went into the kitchen to make a sandwich, and he and the victim got into an argument. Jones “sassed” him, at which point the argument escalated. Jones testified that his grandfather got in his face, pointing and yelling at him. He testified that his grandfather had never done that before. He testified that his grandfather then pushed him, that he pushed him back, and his grandfather then swung at him. Jones testified that he had a steak knife in his hand from making a sandwich, and because he “didn’t have anywhere to go between the corner and him,” he “threw the knife forward,” stabbing his grandfather. He testified that his grandfather backed up, looked at the wound, and came at Jones again. Jones again stabbed him and tried to get past his grandfather. Jones testified that his grandfather grabbed him, they fought some more, and Jones then grabbed a filet knife. He stabbed his grandfather with this knife. Jones testified:

I was stabbing him because I was afraid, I didn’t know anything else to do because he was so huge. He’s not really a big looking man until he gets in your face with his hands 'up and swinging at you, and then he turns into a giant. And you just feel like there’s no way out, no way to get away from him.

After they “got outside,” Jones testified that he knew his grandfather was going to die if he did not try to save him, so he tried to administer CPR. He then tried to carry his grandfather, who was not breathing at that point, into the house “[mjostly to get him out of the yard.” Jones then pulled the body into the laundry room and shut the door. Jones used a water hose to try and clean the blood off of his arms, and then threw his shirt in the garbage under the sink. He then attempted to cover up the blood spots in the carport by pulling his grandfather’s car over them. Jones testified that he walked around the house and saw Robert “Frisco” Ruffner; at this point, Jones was covered in blood.

¶ 4. Ruffner, who was living with and doing yard work for Thomas Lacastro, a neighbor at the time, testified that he had “heard an old man, you know, like holler out he was in pain,” and about two or three minutes later, he saw Jones walking toward him covered in blood. Ruffner testified that Jones was carrying a knife, trembling and saying, “Kill, kill.” Ruffner then ran into the house and called 911.

¶ 5. Thomas Lacastro arrived while Ruffner was on the phone with the police, and Ruffner related to Lacastro what he had seen. Ruffner was hysterical at the time, and Lacastro did not, at first, believe him. Ruffner told Lacastro that Jones had killed his grandfather. Lacastro then saw Jones in the bushes and asked him to come over to his house. Lacastro testified that Jones was pale and “had some blood on him.” Lacastro testified that he asked Jones, “Where’s your grandfather?” Jones answered, “He’s gone,” and Lacas-tro responded, “No, he’s not gone. His car is right there, Brett.” Jones again tried to say that his grandfather had left, but Lacastro told him, “Brett, you’re lying. You need to get out of my yard.” At some point during the conversation, Jones told Lacastro that the blood was fake and that “it’s a joke.” Lacastro responded, “It’s not a joke, son. This is not a joke. This is real.”

¶ 6. Lacastro testified that Jones then went back toward the bushes, where he met a young lady. He testified that the two walked “up and down the bushes ... [a]nd then ... out toward the levee.” La-castro told Jones before he left that he had called the police. After Jones and the young lady left, Lacastro went over to the bushes where they had been “milling around” and saw an oil pan covered in blood. He then went into the carport and saw more blood, but did not go any farther.

¶ 7. Jones testified that when he left the property, he was trying to go to Wal-Mart to meet his grandmother because he “wanted to tell her what happened.” He and Austin ran through the woods to a convenience store, where a man asked them if they needed a ride. Jones testified that they got to a gas station in Nettleton, Mississippi, and were trying to get a ride to the Wal-Mart in Tupelo, Mississippi, when police apprehended them.

¶ 8. Jones and Austin gave the officers false names. Officer Gary Turner of Net-tleton began a pat-down of Jones and found a pocketknife in his left pocket. Officer Turner asked whether it was the knife Jones “did it with,” to which Jones responded, “No, I already got rid of it.”

¶ 9. When Investigator Steve White went to investigate the home of Bertis Jones, he found Bertis Jones’s body concealed in a utility room in the back of the carport. He found that someone had apparently used a car, an oil pan and a mat to conceal puddles of blood. Investigator White also found a bloodstained T-shirt in the carport, as well as more bloodstained clothing in the kitchen trash can. Officers also found a filet knife in the kitchen sink and a bent steak knife with blood on the tip of it. There were blood spatters on the walls.

¶ 10. There were a total of eight stab wounds to the body of Bertis Jones. There were also abrasions consistent with the body’s having been dragged, and cuts on the hand classified as “defensive posturing injuries.” The cause of death was a stab wound to the chest.

¶ 11. Jones was convicted of murder in the Circuit Court of Lee County and sentenced to life imprisonment in the custody of the MDOC. Aggrieved, Jones appeals, asserting the following: (1) that the trial court erred in denying his motions for directed verdict; (2) that the verdict was against the overwhelming weight of the evidence; and (3) that the trial court erred in allowing into evidence photographic exhibits 9, 31 and 32.

ISSUES AND ANALYSIS

I. Whether the trial court erred in denying Jones’s motions for directed verdict and JNOV.

¶ 12. A motion for directed verdict challenges the legal sufficiency of the evidence, and has the same standard of review as a denial of a peremptory instruction or JNOV. Vaughn v. State, 926 So.2d 269, 271(¶ 4) (Miss.Ct.App.2006) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). We review the trial court’s finding regarding the sufficiency of the evidence at the time the motion for directed verdict was overruled. Vaughn, 926 So.2d at 271(¶ 4) (citing Holloman v. State, 656 So.2d 1134, 1142 (Miss.1995)). “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.’ ” Id. (quoting Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005)).

¶ 13. The jury in the case sub judice found that Jones did willfully and with malice aforethought or deliberate design kill Bertis Jones, without any authority of law, and not in necessary self-defense. Jones asserts in his brief that “there were no eye witnesses to any crime committed by [Jones].” He further points to his claims of self-defense and the fact that his grandfather was a larger man than Jones. He then proceeds to attack Austin’s testimony as self-serving, and notes that she testified at trial that she would “lie to save herself.”

¶ 14. While all this may or may not be so, it is not our place to assume the role of jury. Rather, we must, viewing the evidence in the light most favorable to the prosecution, determine whether any rational trier of fact could find Jones guilty of the elements of the crime beyond a reasonable doubt. Viewing the evidence in such a light, it is clear that a rational trier of fact could have found Jones guilty of murder based on the evidence in this case. This issue is thus without merit.

II. Whether the verdict of the trial court was against the overwhelming weight of the evidence.

¶ 15. A motion for a new trial challenges the weight of the evidence. Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003). “When reviewing a denial of a motion for new trial, this Court ‘will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Vaughn, 926 So.2d at 271(¶ 4) (quoting Bush, 895 So.2d at 844(¶ 18)).

¶ 16. There was testimony by Austin that Jones intended to hurt his grandfather. Jones admitted to killing his grandfather, though he, the only witness to the actual crime, claimed self-defense. While there may have been conflicting testimony, we cannot say that the verdict was so contrary to the overwhelming weight of the evidence as to constitute an unconscionable injustice.

III. Whether the trial court erred in allowing into evidence graph exhibits 9, 31 and 32 over Jones’s objection as being cumulative and in violation of Rule 403 of the Mississippi Rules of Evidence.

¶ 17. Jones argues that three photographs entered into evidence, exhibits, 9, 31 and 32, violated Rule 403 of the Mississippi Rules of Evidence. Rule 403 states: “Although relevant, evidence may be excluded if the 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.” Jones argues that the photographs were cumulative, and that their probative value was outweighed by their potential for prejudice.

¶ 18. “It is well settled in this state that the admission of photographs is a matter left to the sound discretion of the trial judge and that his decision favoring admissibility will not be disturbed absent a clear abuse of that judicial discretion.” Noe v. State, 616 So.2d 298, 303 (Miss.1993) (citing Gardner v. State, 573 So.2d 716, 718-19 (Miss.1990); Sudduth v. State, 562 So.2d 67, 69-70 (Miss.1990)). The discretion of the trial judge in this matter is almost unlimited, “regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Id. (quoting Williams v. State, 544 So.2d 782, 785 (Miss.1987)). So long as a photograph has probative value and serves a meaningful evidentiary purpose, it may still be admissible despite being gruesome, grisly or inflammatory. Id. The trial judge’s discretion, however, while “almost unlimited,” is not completely unfettered. Id. It has been noted by the Mississippi Supreme Court that photographs have been held “to be so gruesome and inflammatory as to be prejudicial in only one circumstance, close-up photograph of a partly decomposed, maggot-infested skull.” Taylor v. State, 672 So.2d 1246, 1270-71 (Miss.1996) (noting solitary instance of photographs being held prejudicial in McNeal v. State, 551 So.2d 151 (Miss.1989)).

¶ 19. “Photographs are considered to have evidentiary value in the following instances: ‘(1) aid in describing the circumstances of the killing; (2) describe the location of the body and the cause of death; (3) supplement or [clarify] witness testimony.’ ” McIntosh v. State, 917 So.2d 78, 83-84(¶ 13) (Miss.2005) (quoting Spann v. State, 771 So.2d 883, 895(¶ 31) (Miss.2000)).

¶ 20. In the case sub judice, photograph exhibit 9 displayed the body of the victim lying in a doorway, with bloodstains leading out of the door. Though there were other photographs of the body entered into evidence, none was precisely from the same angle or showed all the same details. Photograph exhibit 9 clearly described the location of the body, supplemented witness testimony as to its location, and displayed the wounds causing the victim’s death. Hence, the trial judge did not err in allowing it into evidence.

¶ 21. Photograph exhibits 31, 32 and 33 displayed closeups of the victim’s head. Photograph 31 displayed a frontal view of the victim’s face, photograph 32 displayed the victim’s head from the right side, and 33 displayed it from the left side. These photographs, though obviously disturbing, displayed lacerations and bruising on the different parts of the victim’s head. It would have been impossible to display all of the lacerations and bruising in a single photograph, and the photographs obviously aided in supplementing testimony as to the struggle between the victim and Jones, as well as bruising consistent with dragging the body after death. Thus, we do not find that these photographs were cumulative, or that their potential for prejudice outweighed their probative value. We hold that the trial judge did not abuse broad discretion by allowing photograph exhibits 9, 31 and 32 into evidence.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ROBERTS, JJ. CONCUR.

      . In fact, Ruffner and Lacastro actually began physically fighting.


author: GRIFFIS, J.,

text:
    Taurus CALDWELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00169-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.

      John Keith Perry, Jr., Starkville, for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., GRIFFIS, and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Taurus Caldwell was convicted of felony possession of marijuana with intent to distribute and sentenced to serve thirty years in the custody of the Mississippi Department of Corrections. On appeal, he claims that the trial judge erred: (1) in the admission of evidence seized in the execution of the search warrant, as the warrant specifically required the officers to “knock and announce,” and they did not; (2) in denying Caldwell’s motion for a directed verdict because there was insufficient evidence to support a conviction; and (3) in overruling the defendant’s objection to the prosecutor’s characterization of evidence during closing arguments. We find no error and affirm.

FACTS

¶ 2. On June 25, 2003, a search warrant was executed at a residence located at 502 State Street, Greenwood, Mississippi. The officers arrived at the residence around 6:00 p.m. and secured the premises. The officers attached a chain to the front door, pulled it open and then entered the residence. Caldwell was found alone inside the residence.

¶ 3. The officers seized a package which contained twenty-three pounds or ten kilograms of marijuana, two hand guns, and a scale. Caldwell was arrested and charged with possession of marijuana with intent to distribute. Following a jury trial, Caldwell was convicted.

ANALYSIS

I. Did the trial judge err in the admission of evidence seized in the execution of the “knock and announce” search warrant, when the officers failed to knock and announce?

¶4. The standard of review for a trial judge’s decision to admit or exclude evidence is abuse of discretion. Graves v. State, 492 So.2d 562, 565 (Miss.1986). Caldwell argues that the trial judge’s decision to admit the evidence seized pursuant to the search warrant was in error. Caldwell alleges that the search was fatally defective because the search warrant specifically directed that the search be executed as “knock and announce” and the officers failed to comply with the mandates of the warrant. We find this argument to be without merit.

¶ 5. The warrant issued stated:

THEREFORE, you are hereby commanded to proceed at any time day or night to the place described above and to search forthwith said place for the things specified above, making known to the person or person’s [sic] occupying or controlling said place, if any, your purpose and authority for so doing ....

¶ 6. In the supporting affidavit that was presented to the issuing judge, the officers requested that a “no knock” warrant be issued. The officers testified that they reasonably believed that they were issued a warrant which allowed them to enter and execute the warrant with out knocking and announcing their entry. The officer’s testimony established that their entry was reasonable under the circumstances. White v. State, 746 So.2d 953, 956(¶ 11) (Miss.Ct.App.1999).

¶ 7. The search warrant stated in numbered paragraph five; “[t]he facts tending to establish the foregoing grounds for issuance of a SEARCH WARRANT are shown on a sheet headed ‘UNDERLYING FACTS AND CIRCUMSTANCES’ which is attached hereto, made a part hereof and adopted herein by reference.” This incorporation of the underlying facts and circumstances which specifically requested a warrant that allowed them to enter without knocking supports the conclusion that the judge intended to grant a “no knock” warrant. The clerical error of the issuing magistrate will not result in the suppression of the evidence seized. White, 746 So.2d at 957—58(¶ 15). The trial judge did not abuse his discretion in admitting the evidence seized.

¶ 8. In addition, the United Supreme Court recently decided Hudson v. Michigan, — U.S. --, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) and concluded that the exclusion of evidence is not required when there is a violation of the knock and announce rule.

¶ 9. Therefore, we find this issue to be without merit and affirm.

II. Did the trial judge err in denying Caldwell’s motion for a directed verdict because there was insufficient evidence to support the conviction?

¶ 10. Caldwell argues that the prosecution did not prove that he was in actual or constructive possession of the residence or the marijuana. Therefore, he claims that there was insufficient evidence to support his conviction. In reviewing a sufficiency of the evidence claim, the Court considers the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844(¶ 16) (Miss.2005). If any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we will uphold the verdict. Id. Considering the evidence in the light most favorable to the verdict, we find that there was sufficient evidence to convict Caldwell of possession of marijuana with intent to distribute.

¶ 11. Caldwell asserts that his brother Leon Caldwell lived at the residence. The rental agreement and utilities were in Leon’s name. Caldwell’s mother, Betty Jenkins testified that Caldwell lived with her, and Leon lived in the house described in the search warrant. However, there was also evidence presented to the contrary.

¶ 12. Officer Bedell testified that he observed Caldwell entering and exiting the house on several occasions. Caldwell’s vehicle was parked outside the house overnight. Additionally, Bedell testified that articles of clothing that he observed Caldwell wearing were found inside the house during the search.

¶ 13. A Mississippi Valley Gas statement and a bill for a cellular telephone were found during the search. Both of these statements were in the name of the defendant Caldwell and mailed to the residence. Additionally, Caldwell’s driver’s license and automobile registration listed the address of the residence where he was arrested. From the evidence presented, drawing all inferences in favor of the verdict, a reasonable jury could conclude that Caldwell was in possession or control of the premises where he and the marijuana were seized.

¶ 14. The jury was presented with conflicting testimony. It is clearly in the jury’s province and in fact their duty to resolve conflicts in testimony. Turner v. State, 818 So.2d 1181, 1185(¶ 10) (Miss.2002). We find the evidence was sufficient to support Caldwell’s conviction and affirm.

III. Did the trial judge err in overruling Caldwell’s objection to the prosecution’s characterization of evidence during closing arguments?

¶ 15. Caldwell alleges that the prosecutor misrepresented the facts and evidence during his closing arguments, and the trial judge erred in overruling his objection. Traditionally, attorneys are allowed wide latitude in arguing their cases to the jury. Sheppard v. State, 777 So.2d 659, 661(¶ 7) (Miss.2000). However, prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury. Id. The standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created. Id.

¶ 16. During closing arguments the prosecutor said:

Not to mention the fact that, remember, the possession of this house is at issue. You’ve got two bills. You’ve got a Mississippi Valley Gas bill that they got during the investigation back in March when they just started investigating, or February, when they started investigating utilities, I should say and you’ve got a cell phone.

At this point, Caldwell’s counsel objected to this as a mischaracterization of the direct testimony. The trial judge did not specifically overrule the objection, but instead held that the prosecutor was on closing and allowed him to continue. The prosecutor then attempted to correct his misstatements.

¶ 17. The trial judge instructed the jury that the “arguments and remarks of the attorneys in this case are intended to help you understand the evidence and apply the law, but such arguments or remarks are not evidence. Any argument or remark having no basis in the evidence should be disregarded by you.” The remedial acts of the court are usually deemed sufficient to remove any prejudicial effect from the mind of the jurors. Strahan v. State, 729 So.2d 800, 808(¶ 34) (Miss.1998). The jury is presumed to have followed the directions of the trial judge. Id.

¶ 18. We do not find that this misstatement made by the prosecutor unjustly prejudiced Caldwell. This issue is without merit, and we affirm.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY OF CONVICTION OF POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LE-FLORE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: CHANDLER, J.,

text:
    Gregory Darnell MOFFETT, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02419-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.

      Eileen M. Maher, Natchez, attorney for appellant.

      Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before MYERS, P.J., IRVING, CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. An Adams County jury convicted Gregory Darnell Moffett of the murder of his girlfriend, Tantanisha Thomas. The Circuit Court of Adams County sentenced Moffett as a habitual offender to life in the custody of the Mississippi Department of Corrections. Moffett appeals, arguing that (1) reversible error occurred when the prosecutor violated a court order to refrain from opining that Moffett’s prior domestic violence convictions indicated a propensity for violence against the victim; (2) the prosecutor’s improper examination of a witness requires a new trial; (3) the evidence was insufficient to support the murder conviction; and (4) the verdict was against the overwhelming weight of the evidence. In his reply brief, Moffett makes the additional argument that the cumulative effect of the errors requires reversal.

¶2. We find no error and, therefore, affirm Moffett’s conviction and sentence.

FACTS

¶ 3. Moffett, Thomas, and their two children lived together in a house (hereinafter, Thomas’s house) in Natchez, Mississippi. Thomas was brutally killed in the early morning hours of December 7, 2003. Thomas’s body was discovered sometime after daybreak by a neighbor who looked through a window of Thomas’s house and observed Thomas lying still. The front and rear doors of the house were locked. A crying child was inside, and the neighbor broke a window to gain access to the interior. When the police arrived, they encountered a bloody crime scene with Thomas’s body propped against a couch in the entry of house. Thomas’s baby was in the bedroom; her other child was not at home. The crying child was a neighbor’s godchild, D.H., who had spent the night at Thomas’s house. The police found no signs of a burglary.

¶ 4. The county coroner, Reverend James E. Lee, determined that Thomas had died from several blows to the left forehead inflicted with a claw hammer found next to her body. Lee placed the time of death at around 3:00 a.m. that morning but stated that the actual time of death could be within two hours before or after 3:00 a.m. The state pathologist, Dr. Stephen Hayne, deferred to Lee’s estimate of the time of death. There was no evidence that Thomas had been sexually assaulted. The claw hammer was tested for fingerprints, but none were recovered.

¶ 5. In June 2004, Moffett was indicted for Thomas’s murder. The trial occurred on November 16-18, 2004. At the trial, two of Moffett’s prior convictions for domestic violence against Thomas, one on September 9, 2003, and one on October 8, 2003, were introduced into evidence. Also admitted was Moffett’s November 29, 2003, charge for domestic violence against Thomas that had been dropped due to Thomas’s death. Moffett testified that he would have pled guilty to this charge because he had committed the charged conduct. A jailer and a detention officer both testified that Thomas had refused to bail Moffett out of jail after the November 29, 2003 charge. The detention officer heard Moffett tell Thomas on the phone that she had better get him out or he would “beat her a — .” The jailer heard Moffett state, “She knows what I will do.” Both witnesses overheard Moffett state, “When I get out of here, I’m going to kill that b.”

¶ 6. The following evidence was presented about the chronology of events on the night of December 6, 2003, and the morning of December 7, 2003. Bobbie Woods had lived next door to Moffett and Thomas and was friends with Thomas. Woods had prior convictions for shoplifting and giving false information to the police. Woods testified that, on the evening of December 6, 2003, her fifteen-year-old son, Damien Davis, had gone to Thomas’s house to keep Thomas company because Thomas was afraid of Moffett. Thomas had babysat D.H. that day and Woods gave D.H. permission to spend the night at Thomas’s house. At approximately 11:30 p.m., Mof-fett and Thomas visited Wood’s house. Moffett and Thomas were arguing during the visit and Thomas stated, “Bobbie, tell Greg that I’m not cheating on him.” Thomas was upset and did not want to leave, but Moffett kept urging her to go.

¶ 7. After several minutes, Moffett and Thomas returned to Thomas’s house. Woods called Thomas several times and asked her to send Davis home; once, Mof-fett answered the phone. Woods stated that Davis did not return from Thomas’s house until 2:15 a.m. Very shortly thereafter, Thomas called and asked Davis to come back, and Davis said he would. Telephone records admitted into evidence established that this call occurred at 2:16 a.m. However, Davis fell asleep and did not return to Thomas’s house that night. Woods called Thomas at 2:49 a.m., but there was no answer. Phone records showed that no incoming calls to Thomas’s house were answered until after the police arrived.

¶ 8. Davis testified that he went to Thomas’s house at Thomas’s request at 7:00 p.m. on December 6, 2003. Davis said that he did not leave the premises until 2:15 a.m. on December 7, 2003. He played video games most of the time he was there. He witnessed Moffett and Thomas arguing throughout the night. Moffett kept telling Thomas that he was going to kill her. Moffett told her that he would “put her family in black” and that “they might as well go on and get their black dress ready.” Moffett told Thomas that she would need a bat, and then handed her one. Woods called, but Moffett stood beside the phone and prevented Thomas from talking to Woods. Moffett kept urging Davis to leave, but Thomas asked Davis to stay. Davis stayed because he could see that Thomas was frightened. Later, Davis observed that Moffett had changed into black clothes and shoes. Davis stated that Moffett called someone named Mike Freeman. Moffett told Freeman that he had “some business to take care of.” Then, Moffett asked Davis to leave so that he and Thomas could take a bath together. Davis refused to leave. Thomas ran a bath. During the night, Woods repeatedly phoned for Davis to come home and he did so at 2:15 a.m. Shortly thereafter, Thomas called him and asked him to return. Davis said that he would return, but he accidentally fell asleep. Davis said that Moffett did not leave Thomas’s house the entire time Davis was there, except when Moffett and Thomas briefly went to Woods’s house.

¶ 9. Another neighbor, Rosie Williams, testified that she saw Moffett and Thomas arguing in their driveway sometime after midnight. Carolyn Harris testified that she lived at Brumfield Apartments and that Moffett visited her apartment at about 4:30 a.m. on December 7, 2003. Moffett used the phone and Harris overheard Mof-fett saying, “Don’t tell anyone where I am.” Moffett left after 10:30 a.m. and said that he was going to Baton Rouge. Officer Gary Nations of the Natchez Police Department testified that the witnesses who saw Moffett that morning reported that he was wearing all black.

¶ 10. Officer Todd Ainsworth of the Concordia Parish Sheriffs Department testified that he apprehended Moffett at a Quickstop convenience store outside of Ferriday, Louisiana at 4:50 a.m. on December 10, 2003. Moffett had been outside the Quickstop, shaking the door and demanding to be allowed inside. Moffett told Officer Ainsworth that he had been out hunting all night and had been dropped off by friends. Moffett produced no hunting license or other identification and would not identify himself. He had been outside in the rain for several hours.

¶ 11. Moffett gave a statement to Officer Nations. He said that, on December 6, 2003, he left Thomas’s house between 9 and 10 p.m. and went to Lewanda Smith’s house. While there, he called Thomas. He returned home before 12:00 a.m. Between 12:00 a.m. and 1:00 a.m., Ronnie Jones picked him up from Thomas’s house. He and Jones drove around together, once stopping at Zippy’s convenience store. At about 3:00 a.m. Jones dropped Moffett off at Brumfield Apartments. From there, Moffett went to Club Paradise and to Queen’s Lounge. He returned to Brum-field Apartments at about 5:00 a.m. and went to Harris’s apartment. While there, Moffett fell asleep and was awakened by his pager. Sheila Letcher had paged him. He returned the call and Letcher told him Thomas had been found dead. Moffett fled.

¶ 12. Moffett’s chronology of events at the trial differed from that in his statement to the police. Moffett denied that he killed Thomas. He testified that Smith picked him up about 10:00 p.m. They went to Zippy’s and then to Smith’s apartment, where Thomas paged Moffett three times and Moffett returned each call. Indeed, the phone records showed calls to Mof-fett’s pager from Thomas’s house at 10:49 p.m., 11:00 p.m., and 11:18 p.m., and calls from Smith’s house to Thomas’s house at 10:53 p.m., 11:01 p.m., and 11:20 p.m. Mof-fett testified that he returned home at approximately midnight. Davis was not there. Moffett testified that Davis was not at the house the entire evening, but traveled back and forth to Woods’s house next door. Moffett stated that Davis returned between midnight and 2:00 a.m.

¶ 13. At about 1:00 a.m, Moffett announced that he was going to a club. Thomas did not want him to go and they started arguing. Woods called at 1:07 a.m. and asked them to come over. Moffett and Thomas went to Woods’s house, returning at 1:20 a.m. He and Thomas argued because Moffett thought she and Woods had been shoplifting together. Moffett testified that he then made several calls to friends trying to get a ride to the club; the phone records show calls from Thomas’s house to various telephone numbers, including Smith’s. Thomas took a bath. Moffett asked Davis to leave so Moffett could get into the bath with Thomas, but Davis refused. Moffett made three more phone calls, all shown by the phone records. Moffett stated that Davis finally left at about 2:11 a.m. Moffett left a minute later. Just before leaving, Moffett heard Thomas on the phone asking Davis to return. Moffett walked down the street in front of Thomas’s house to Minor Street, and was picked up by Ronnie Jones and other friends at the corner of Minor Street and Williams Street.

¶ 14. Jones testified that he was driving down Minor Street and saw Moffett walking down the street. Jones picked up Moffett, but was inebriated and unsure what the time was. Antonio Dawson stated that he was with Jones when they picked up Moffett on Minor Street. He did not see any blood on Moffett and thought Moffett was acting normally. Moffett testified that, after picking him up, Jones rounded the block and they went to Zippy’s convenience store. The video surveillance camera at Zippy’s captured Mof-fett inside the store at 2:31 a.m.

¶ 15. Moffett testified that, after leaving Zippy’s, Moffett, Jones, and the others drove around and smoked marijuana. Jones dropped Moffett off at Brumfield Apartments, and Moffett walked to the clubs. Marcus Shaw spotted Moffett at Queen’s Club between 3:30 a.m. and 4:00 a.m.; Moffett was dressed in black. Angela Myles saw Moffett at Club Paradise between 3:00 a.m. and 4:00 a.m. Moffett said that Jones dropped him off at Brum-field Apartments at about 4:30. At 4:36, he called home and no one answered. This call was corroborated by the phone records. Moffett said that in the morning he received the news that Thomas had been killed and he walked back to Thomas’s house. Before he got there, Kerry Johnson told him he needed to run. Mof-fett was scared and hid within Natchez. He said that, two days later, an old man named James drove him to Ferriday.

¶ 16. Moffett denied that he told Officer Ainsworth that he had been hunting and said that he told Officer Ainsworth his name. He denied that when he was at Harris’s he told someone on the phone not to tell anyone where he was or that he told Harris he was going to Baton Rouge. Moffett also denied having threatened to kill Thomas on December 6 or 7, 2003, or saying that he wanted to see her family in black. He further denied having told Officer Nations that Jones had picked him up from Thomas’s house rather than on the corner of Minor Street and Williams Street.

¶ 17. Shirley Green testified on behalf of Moffett. Green stated that she was an ordained minister who lived across the street from Thomas’s house. Green testified that God woke her up at 3:00 a.m. on the morning of December 7, 2003, and she began saying prayers. Her prayers were interrupted by loud voices from outside. She looked out the window and saw Thomas, Woods, and Davis arguing on the front porch of Thomas’s house. They were arguing about money; Green heard something about a thousand dollars. Then, Woods departed. Green went back to sleep.

¶ 18. On cross-examination, Green admitted that she had pled guilty to shoplifting, but maintained that she had never stolen anything before. Green admitted to having made a conflicting handwritten statement in February 2004. In the statement, she said that early on the night of the murder she saw a short man, of medium build, dressed all in black, emerge from the rear of Thomas’s house and walk to the street. Green saw his face, but did not recognize him. In the statement she also said she heard the arguing after she had finished praying and had returned to bed, at about 3:00 or 4:00 a.m. When she looked out the window, she saw two women arguing, and also saw the man dressed in black come out of the house. She did not know who the women were. She never reported her observations to the police.

¶ 19. The jury found Moffett guilty of murder.

LAW AND ANALYSIS

I. DID REVERSIBLE ERROR OCCUR WHEN THE PROSECUTOR VIOLATED A COURT ORDER TO REFRAIN FROM OPINING THAT MOFFETT’S PRIOR DOMESTIC VIOLENCE CONVICTIONS INDICATED A PROPENSITY FOR VIOLENCE AGAINST THE VICTIM?

¶20. The trial court granted Moffett’s motion in limine to exclude the evidence of several prior charges and convictions. The trial court admitted two convictions and one charge of domestic violence that occurred in the three months prior to Thomas’s death, finding them relevant to establish motive, intent, and possibly identity under Mississippi Rule of Evidence 404(b). At Moffett’s request, the trial court granted a jury instruction stating that the conviction and charge were admitted to show motive, and restricting the jury from considering them as probative of Moffett’s propensity to commit the crime.

¶ 21. During the second phase of closing arguments, the prosecutor stated:

I tell you what is reasonable, ladies and gentlemen. It’s reasonable to believe that he had a propensity to commit this crime. He had already done it twice and three times in the last two months. He assaulted her, domestic violence. That don’t mean you call them a name, folks, and he says, well, I admitted those. Yeah, you pay a fine and get suspended time. This is a murder charge. I think there’s a little bit of falsehood if I was looking at that situation. It’s different. But he had a propensity to commit the crime. Now they want to make a big deal about—

At this point, Moffett objected to the prosecutor’s stating that the prior acts showed Moffett’s propensity to commit the crime. The court sustained the objection and instructed the prosecutor to move on.

¶ 22. On appeal, Moffett argues that the trial court erred by not instructing the jury from the bench to disregard the propensity argument, and that he is entitled to a new trial. It has been established “that to preserve an objection to alleged improper remarks by counsel during closing argument, the complaining party must not only make a contemporaneous and specific objection to the remarks, but must also obtain a definitive ruling from the trial court on his objection and must request corrective action.” Rials v. Duckworth, 822 So.2d 283, 287(¶ 22) (Miss.2002). Moffett did make a contemporaneous objection to the prosecutor’s improper remarks. However, he did not request any corrective action from the trial court. Since Moffett did not request any corrective action from the trial court, this issue is waived for appeal. Id. We observe that the jury was instructed not to consider the convictions and charge as evidence of propensity, and the jury is presumed to have followed its instructions. Harmon v. State, 453 So.2d 710, 712 (Miss.1984).

II. DID THE PROSECUTOR’S IMPROPER EXAMINATION OF A WITNESS REQUIRE A NEW TRIAL?

¶ 23. During cross-examination of Shirley Green, the prosecutor asked Green about her shoplifting conviction. Then, the prosecutor asked Green if she had used the name Shirley Brown as an alias. Green denied it, and the following occurred:

Q. If the records from the police department show that as an alias from you—
A. No—
Q. —that’s not true?
A. No, sir. That’s not true. It’s two or three other Shirley Greens in Natchez.
Q. But your date of birth is 6-14 of 1950, right?
A. Yes, sir. That’s correct.
Q. And your social security number is—
A. Yeah, and you don’t have to call it out because that’s my private number—
Q. I’m not going to call your number out, but that’s the—
A. Yes, sir.
Q. —one we talked about before, right?
A. Yes, sir.
Q. So you have never gone by Shirley Brown?
A. No, sir. Never have.
Q. Have you gone by Shirley Bryant?
A. No, sir. I’ve always went by Shirley Evans which is my maiden name. King was my first married name, and Green was my second husband. Those the names that I use.

Then, the prosecutor asked Green about fifteen other aliases and Green denied having used each one. Green stated that, if the police had those names listed as aliases for her, the police were in error.

¶ 24. Moffett did not object to this cross-examination. On appeal, Moffett argues that the prosecutor’s questioning of Green about the aliases entitles him to a new trial pursuant to Smith v. State, 457 So.2d 327, 334 (Miss.1984). Moffett argues that the prosecutor’s questioning of Green was improper, inflammatory, and prejudicial and denied him a fundamentally fair trial.

¶ 25. Counsel must have a good faith basis for questions asked on cross-examination. Flowers v. State, 773 So.2d 309, 326(¶ 58) (Miss.2000). In Smith, on numerous occasions during the trial, the prosecutor attempted to impeach the credibility of defense witnesses with questions that constituted unfounded “sneers and innuendo.” Smith, 457 So.2d at 334. For example, in one instance, the prosecutor asked a defense witness whether “she was selling her body in Jackson like she did on the coast.” Id. The prosecutor did not possess any proof supporting the question. Id. The prosecutor also repeatedly violated directives from the court not to explore certain lines of impeachment questioning. Id. at 335. Though Smith had failed to object to some of the instances of prosecu-torial misconduct, the court held that the cumulative effect of all the instances had rendered Smith’s trial fundamentally unfair. Id. at 336.

¶ 26. Here, according to Moffett’s reply brief, the prosecutor had obtained the aliases from the police department. Therefore, the prosecutor had a good faith basis for asking Green about the aliases. Whether Green had employed aliases in the past was probative of her truthfulness or untruthfulness and impacted her credibility as a witness. The questioning in this case fell far short of what would constitute reversible error under Smith. This issue is without merit.

III. WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE MURDER CONVICTION?

¶ 27. Moffett argues that the evidence was insufficient to sustain his murder conviction and, therefore, the trial court should have granted his motion for a JNOV. In reviewing the denial of a motion for a JNOV, this Court asks whether, considering the evidence in the light most favorable to the State, any rational jury could have found the essential elements of the crime beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “Should the facts and inferences ... ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,’ the proper remedy is for the appellate court to reverse and ... discharge.” Bush, 895 So.2d at 843(¶ 16) (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). However, the evidence will be found sufficient if a reasonable jury, applying the beyond a reasonable doubt standard, might reach different conclusions on each element of the offense. Id. It is the jury’s role to assess the weight and credibility of the evidence and to resolve conflicts in the evidence. Latiker v. State, 918 So.2d 68, 73(¶ 12) (Miss.2005). The jury may accept the testimony of a witness in whole or in part, may reject a witness’s testimony altogether, and may accept in part and reject in part the evidence on behalf of the State or on behalf of the accused. Mangum v. State, 762 So.2d 337, 346(¶ 35) (Miss.2000). We observe that, while this ease involved considerable circumstantial evidence, Mof-fett’s threats to kill Thomas were admissions on the element of deliberate design and constituted direct evidence of his guilt, obviating our treatment of this case as purely circumstantial. See Garrett v. State, 921 So.2d 288, 292(¶ 20) (Miss.2006).

¶ 28. For this Court to affirm Moffett’s conviction, there must have been sufficient evidence to enable a rational jury to find beyond a reasonable doubt that Moffett killed Thomas without authority of law and with deliberate design to effect her death. Miss.Code Ann. § 97-3-19(l)(a) (Rev. 2000). Viewing the evidence in the light most favorable to the State, there was sufficient evidence to enable a rational jury to find that Moffett formed a deliberate design to kill Thomas and that he did kill Thomas. Moffett’s two convictions and one charge of domestic violence against Thomas in the three months prior to her death were admitted into evidence to show Moffett’s motive and intent to harm Thomas. Two corrections officers overheard Moffett state his intent to kill Thomas after she refused to bail him out of jail upon his third domestic violence arrest. Thomas was killed several days after Mof-fett made this threat. On the night of Thomas’s death, Davis observed Moffett again threatening to kill Thomas. Davis saw that Thomas was afraid of Moffett. Williams and Woods also observed Moffett and Thomas arguing that night.

¶ 29. Davis departed Thomas’s house at 2:15 a.m. Thomas called Davis at 2:16 a.m. Moffett was picked up on Minor Street shortly thereafter and was seen at Zippy’s convenience store at 2:31 a.m. Officer Nations testified that it took between three minutes and three minutes and forty-five seconds to walk from Thomas’s house to the corner of Minor and Williams Streets, and two minutes and forty-five seconds to travel by car from that corner to Zippy’s. Officer Nations testified that, given these times, Moffett had an opportunity to kill Thomas between approximately 2:16 a.m. and 2:25 a.m. Moffett’s statement to the police differed from his trial testimony concerning both the time that he left Thomas’s house and where he was picked up by Jones, supporting a reasonable inference that Moffett was lying about his activities during the relevant time period. From the aforementioned evidence, a rational jury could find that, after Davis departed, Moffett followed through on his earlier threats to kill Thomas and then fled the crime scene, being picked up moments later on Minor Street by Jones. Moffett’s phone call at Harris’s in which he told someone not to reveal where he was, his flight to Ferriday, Louisiana, and his suspicious behavior upon apprehension by the police also support this conclusion.

IV. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 30. Next, Moffett argues that the trial court should have granted his motion for a new trial because the verdict was against the overwhelming weight of the evidence. On review of the denial of a motion for a new trial, we view the evidence in the light most favorable to the verdict, and determine whether the evidence so heavily preponderated against the verdict that an unconscionable injustice would result from the denial of a new trial. Bush, 895 So.2d at 844(¶ 18). The power to grant a new trial should be exercised only in exceptional cases. Id.

¶ 31. Viewing the evidence in the light most favorable to the verdict, the evidence shows that several witnesses heard Moffett threaten to kill Thomas several days before her death and on the night of her death. Further, Moffett had committed three acts of domestic violence against Thomas in the three months before her death. According to the testimony of every pertinent witness on the issue other than himself, Moffett had the opportunity to kill Thomas. And, Moffett fled the day after Thomas’s death and was apprehended in another state. The testimony of Green, which was the only evidence that Thomas was alive between 3:00 a.m. and 4:00 a.m., conflicted materially with Green’s own prior handwritten statement. We cannot say that the evidence so heavily preponderated against the verdict that a new trial is required to avoid an unconscionable injustice.

V. DOES THE CUMULATIVE EFFECT OF THE ERRORS REQUIRE REVERSAL?

¶ 32. Moffett argues that errors occurred in this case, that, when considered cumulatively, entitle him to a new trial. Moffett raised this issue for the first time in his rebuttal brief, thus depriving the State of the opportunity to respond to the issue. Therefore, we do not consider it. Bishop v. State, 882 So.2d 135, 154-55(¶ 51) (Miss.2004).

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR.