author: GRIFFIS, J.,

text:
    Dale TERRY, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02230-COA.
    Court of Appeals of Mississippi.
    Nov. 28, 2006.

      Carol L. White-Richard, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., SOUTHWICK, IRVING, and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Dale Terry appeals his conviction of possession of chemicals with the intent to manufacture a controlled substance. He was sentenced to serve twenty years. Terry raises four issues: (1) whether the trial court erred in denying the motion to suppress the samples taken from the drinking cup and the tested results of those samples from the Mississippi Crime Lab, (2) whether there was sufficient evidence to prove the element of possession beyond a reasonable doubt, (3) whether the trial court erred in refusing to give a jury instruction regarding circumstantial evidence, and (4) whether the verdict of the jury was against the overwhelming weight of the evidence, specifically in regards to the chain of custody of the samples from the drinking cup. We find no error and affirm.

FACTS

¶ 2. Shortly before 11:00 p.m. on April 14, 2003, Sergeant Evan Smith, a Washington County deputy, received an anonymous phone call advising him that Dale Terry was manufacturing methamphetamine at 55 Penny Lane in Washington County. Sergeant Smith contacted Deputy Dwight Donham and told him to meet at 55 Penny Lane. Upon arrival in separate patrol cars, the deputies proceeded to the back of the house, past a toolbox that emitted a strong smell of ether. Upon knocking on the door, Paulette Terry, Dale Terry’s mother, answered the door and invited the two deputies into the house. The deputies informed Ms. Terry of the anonymous tip and she gave the deputies oral consent to search the premises. A short time later, Agent Rick McDaniel of the Central Delta Drug Task Force, at the request of Sergeant Smith, arrived at 55 Penny Lane and received written consent from Ms. Terry to search the premises.

¶ 3. Upon receiving written consent to search, the officers went outside of the house and directly to the toolbox that was emitting the strong smell of ether. Upon finding the toolbox locked, Agent McDaniel asked who owned the toolbox. Dale Terry said that it was his. Terry stated that he did not have a key to open the toolbox, but could get into it. Terry offered to assist the officers in prying open the toolbox with a screwdriver and hammer. Upon almost turning over the toolbox, Terry was stopped by Agent McDaniel because the agent did not wish for the box and its contents to be destroyed. Agent McDaniel then proceeded to open the lid with a crowbar. Inside, Agent McDaniel found a thirty two ounce drinking cup, a box of salt, and some tubing. Some of the liquid in the cup was packaged and transported to the Central Delta Drug Task Force office by Agent McDaniel where Agent Jimmy Branning took some samples of the substance. Agent Bran-ning later transferred those samples to the State Crime Lab for testing and gave the samples to Jason Harbison, the evidence custodian for the State Crime Lab.

¶ 4. Adrian Hall, a forensic scientist with the Mississippi Crime Lab, testified that after testing the substance it was found to contain ethanol and ephedrine, two precursors used in the manufacture of methamphetamine.

¶ 5. At trial, Ms. Terry testified that, prior to the arrival of the deputies, Nick Southerland had come by the house to drop off some tools for Terry. She directed him to place the tools in the toolbox outside. She also testified the salt and tubing were purchased from Wal-Mart that night for the kids to start a fish tank and that these items were not in the toolbox, but found in the floorboard of Terry’s truck. Terry did not testify at trial.

ANALYSIS

I. Whether the trial court erred in denying the motion to suppress the samples taken from the drinking cup and the tested results of those samples from the Mississippi Crime Lab.

¶ 6. Terry alleges that the trial court erred in denying his motion to suppress the samples taken from the drinking cup because of a break in the chain of custody. The burden is on the defendant to show whether there is any indication or reasonable inference of probable tampering with the evidence or substitution of the evidence. Hemphill v. State, 566 So.2d 207, 208 (Miss.1990). In determining this issue, the decision is left to the discretion of the trial court. “[Ujnless the judicial discretion has been so abused as to be prejudicial to the Defendant, this Court will not reverse the ruling of the trial court.” Wright v. State, 236 So.2d 408, 409 (Miss.1970).

¶ 7. Here, the only hint of an indication that Terry can point to of tampering with or substitution of the evidence is the discrepancy between the chain of custody form and the testimony of Agent McDaniel and Agent Branning. The chain of custody form did not list Agent Branning, and both Agents Branning and McDaniel testified that Branning delivered the samples from the drinking cup to the Mississippi Crime Lab. Agent McDaniel testified that the discrepancy resulted from a blank being filled in incorrectly. Their testimony was sufficient to show, in place of the form, a complete chain of custody. Agent McDaniel stated he retrieved the cup from the toolbox and took it to Agent Branning who then took the samples. Agent Bran-ning then delivered the samples to the State Crime Lab on February 28, 2003.

¶ 8. We find that Terry has failed to carry the burden of showing any indication of tampering as required in Hemphill. Hemphill, 566 So.2d at 208. The trial court had more than adequate grounds upon which to base the denial of the motion to suppress the evidence. Therefore, the trial court did not abuse its discretion in denying Terry’s motion for suppression of the samples taken from the drinking cup, and its ruling will not be reversed.

II. Whether there was sufficient evidence to prove the element of possession beyond a reasonable doubt.

¶ 9. Next, Terry argues that the State failed to provide sufficient evidence to prove the element of possession. To evaluate whether the evidence given is sufficient, this Court must determine if any evidence may “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.” Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss. 1984)) (emphasis added). If the court finds that reasonable jurors could not have differed then the State has failed to prove the specific element, here possession. On the other hand, if reasonable jurors could have reached different conclusions with respect to every element of the offense, the evidence will be considered sufficient. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citing Edwards, 469 So.2d at 70).

¶ 10. Since Terry did not have the precursors actually on his person, the State must prove possession by constructive means. Recently, in Kerns v. State, 923 So.2d 196, 200(¶11) (Miss.2005), the supreme court considered what evidence was sufficient to support a finding of constructive possession. To establish possession, “there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Id. (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)). In addition, for constructive possession, “the drug involved must be subject to his dominion or control.” Id. In Kerns, the supreme court upheld a finding of sufficient evidence for a constructive possession case involving possession of precursors with intent to manufacture. Id. McKinney, the defendant in Kerns, did not own the property where he and the precursors were found, and the supreme court looked to see if there were any additional incriminating facts. Id. at 201 (¶¶ 14-15). It found that being:

present at an operating methamphetamine laboratory which smelled strongly of ether; he was within two feet of methamphetamine oil, surrounded by the necessary precursor chemicals for both creating methamphetamine oil and converting it into crystal methamphetamine; in possession of a Lorcin .38 handgun within reach of ammunition; and in close proximity to tin foil and coffee filters which tested positive for methamphetamine.

Id. at (¶ 15). Together, these facts were sufficient to find that McKinney was in constructive possession of the precursors. Id.

¶ 11. Similar to the analysis in Kerns, this Court looks to determine if there are incriminating facts to provide sufficient evidence of constructive possession. The precursors were found combined in a drinking cup which was located in a locked toolbox outside. The combination of these precursors produced a very strong odor that the officers, while walking up to the house, were able to smell as they passed by. As in Kerns, the strong odor arising from the use of precursors to manufacture methamphetamine was an incriminating fact suggesting that Terry was aware of the presence and character of the particular substance. Also, the officers arrived at the Terry’s residence only after they received an anonymous tip that Dale Terry was cooking crystal methamphetamine at 55 Penny Lane.

¶ 12. An important distinction between Kerns and the present case is that Terry actually owned the property where the precursors were found. The toolbox was locked, showing even more dominion and control of the property inside the toolbox. After learning that Terry was the owner of the toolbox, the officers asked for him to open it. Agent McDaniel testified that when Terry attempted to pry open the toolbox, it appeared as if he was trying to destroy the box and the contents within by slamming the toolbox down. Thus, the jury could have determined, from the testimony of Agent McDaniel and Sergeant Smith, that Terry knew exactly what was inside the toolbox and was trying to destroy any evidence that could possibly be used against him.

¶ 13. Therefore, we conclude that the evidence presented indicates that reasonable minds could differ as to whether Terry was in constructive possession of the precursors. With that being the case, this Court finds that the evidence presented was sufficient to establish Terry in constructive possession of the precursors. This is issue is without merit.

III. Whether the trial court erred in refusing to give a jury instruction regarding circumstantial evidence.

¶ 14. Terry contends that the trial court erred in refusing to issue a circumstantial evidence jury instruction. “A circumstantial evidence instruction must be given unless there is some type of direct evidence such as eyewitness testimony, dying declaration, or confession or admission of the accused.” Deal v. State, 589 So.2d 1257, 1260 (Miss.1991) (citing Mack v. State, 481 So.2d 793, 795 (Miss.1985)). The supreme court has held that failure to grant such an instruction where one is required to be reversible error. Ginn v. State, 860 So.2d 675, 679(¶6) (Miss.2003) (citing Simpson v. State, 553 So.2d 37, 39 (Miss.1989)). Where the evidence is mixed and consists of both direct and circumstantial evidence, a circumstantial evidence instruction is not required. Sullivan v. State, 749 So.2d 983, 992(¶ 20) (Miss.1999).

¶ 15. The question this Court faces is whether there was any direct evidence offered of possession with intent to manufacture. The remaining possession element has been addressed above in regards to sufficiency, but we now must examine it with regards to direct evidence. This Court has held that a circumstantial evidence jury instruction was properly denied in a constructive possession case when marijuana was found in the defendant’s house, not on his person. Jenkins v. State, 757 So.2d 1005, 1009(¶20) (Miss.Ct.App. 1999). In addition, no error was found when a circumstantial jury instruction was denied in a similar constructive possession case involving marijuana found in a vehicle the defendant did not even own. Boches v. State, 506 So.2d 254, 260 (Miss.1987). In both of these proceedings, the testimony of the officers who discovered the drugs was considered direct evidence.

¶ 16. While there is no confession, dying declaration, or admission in this case, the trial court is not without eyewitness testimony. Here, the State presented the eyewitness testimony from Agent McDaniel, Sergeant Smith, and Officer Donham. They testified that a drinking cup containing a substance, later found to contain precursors, was found in Terry’s locked toolbox along with tubing and salt. All of the items found add up to support a showing of possession of precursors with intent to manufacture methamphetamine.

¶ 17. This Court has found direct evidence of the possession element, leaving only intent to be discussed. We follow the authority in Williams v. State, 445 So.2d 798, 808 (Miss.1984), where the court found that if intent alone is sought to be proven by circumstantial evidence, no circumstantial evidence instruction is necessary. Since direct evidence is not required for intent, the prong of intent to manufacture does not require a circumstantial jury instruction.

¶ 18. Due to the direct evidence of the testimony of Agent McDaniel, Sergeant Smith, and Officer Donham, that the precursors were found in Terry’s toolbox, the trial court did not err in denying Terry’s request to issue a circumstantial evidence instruction. This issue is without merit.

IV. Whether the verdict of the jury was against the overwhelming weight of the evidence, specifically in regards to the chain of custody of the samples from the drinking cup.

¶ 19. Terry’s final assignment of error is that the verdict of the jury was against the overwhelming weight of the evidence and a new trial should be granted. This Court will “only disturb a jury verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). To determine if this has occurred, the Court will look at the evidence in a light most favorable to the verdict. Id.

¶ 20. Viewing the evidence in the light most favorable to the verdict, this Court cannot say that the verdict constitutes an unconscionable injustice. Here the precursors, tubing, and salt, were all found in the locked toolbox, which Terry stated he owned. The precursors were found combined in a drinking cup, not separate. In fact, evidence was put on at trial that the precursors were already in the beginning stages of producing the required chemicals to begin the manufacture of methamphetamine. Additional evidence was put on that tubing and salt, akin to that found near the drinking cup, are commonly used in the manufacture of methamphetamine. Testimony was given that it appeared Terry was possibly trying to destroy the contents of the toolbox, while prying the lid off. Viewed in the light most favorable to the verdict, we cannot say that the verdict of the jury was against the overwhelming weight of the evidence. Therefore, we find that the trial court-did not abuse its discretion in denying the motion for a new trial, and this assignment of error is without merit.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF POSSESSION OF CHEMICALS WITH THE INTENT TO MANUFACTURE A CONTROLLED SUBSTANCE AND SENTENCED TO SERVE A TERM OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Michael A. WEBB and Mississippi Property Holdings, L.L.C., Appellants v. Neil A. MEARNS and Wife, Joyce H. Mearns, L.A. Koenenn, Jr. and Wife, Mae Dolese Koenenn, Appellees.
    No. 2005-CA-01237-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.

      G. Martin Warren, attorney for appellants.
    William Alex Brady, Gulfport, Alfred R. Koenenn, attorneys for appellees.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. Michael Webb and Mississippi Property Holdings, L.L.C. (Appellants), filed a complaint against Neil Mearns and Joyce Mearns, requesting temporary and permanent relief on the basis of an alleged prescriptive easement. The Mearns brought L.A. Koenenn and Mae Koenenn into the lawsuit as third-party defendants, alleging that the Koenenns may have breached warranties in their deeds to the Mearns. After discovery, the Harrison County Chancery Court granted summary judgment on behalf of the Mearns and the Koenenns. Aggrieved, the Appellants appeal, asserting that summary judgment was in error.

¶ 2. Finding error, we reverse and remand for further proceedings consistent with this opinion.

FACTS

¶3. On May 22, 1979, J. Ed Turner deeded an eighty-acre piece of undeveloped rural property in Harrison County to Michael Webb and Watts Webb as tenants in common. Because the property was undeveloped, the Webbs apparently accessed the property by traveling over land to the north of their own. At the time of the Webbs’ purchase of the property, the land directly to the north was owned by the Koenenns. On January 8, 2001, Watts Webb conveyed his interest in the property to Mississippi Property Holdings, L.L.C., making Michael Webb and Mississippi Property Holdings the owners of the property, which is still undeveloped.

¶ 4. In 1973, the Koenenns acquired a 160-acre piece of land in Harrison County. At the time, the property was rural and undeveloped, with no public access. In 1975, the Koenenns began to develop the property into five-acre residential lots. This undertaking included the construction of roads between the lots. The roads were completed in 1977 and were deeded to Harrison County by the Koenenns. According to the Koenenns, the roads built between the lots all ended 330 feet from the property line of the adjacent properties. From 1978 to 2003, the Koenenns sold the five-acre sites. By the time suit was filed in this matter, on January 14, 2004, the Koenenns no longer owned any property in the development. The road in the development that is immediately to the north of the Webbs’ property is known as “Corrie’s Place.” According to the Koe-nenns, this road, like all the other roads in their development, ends 330 feet north of the Webbs’ property.

¶ 5. On March 14, 1989, the Koenenns granted a temporary easement to the Webbs, allowing the Webbs to use Corrie’s Place for timber removal. The easement was limited in duration, and terminated without renewal on November 1, 1990. As part of this easement, the Webbs were allowed to improve Corrie’s Place by paving the road with gravel and constructing culverts. The easement also extended Corrie’s Place to meet the Webbs’ property-

¶ 6. In March 2001, the Mearns purchased one of the five-acre lots from the Koenenns. Almost a year later, in January 2002, the Mearns purchased the five-acre lot adjacent to their first property from the Koenenns. These ten acres lie immediately to the north of the property owned by the Appellants. Some time after their purchase of the second parcel, the Mearns built a fence around their property, cutting off access by way of Corrie’s Place to the Appellants’ property.

¶ 7. Thereafter, the Appellants filed their complaint, alleging that they had obtained a prescriptive easement to use Corrie’s Place to gain access to their property. After discovery, the Harrison County Chancery Court granted summary judgment on behalf of the Mearns and the Koenenns, finding that the Appellants had failed to present a genuine issue of material fact regarding their claim for a prescriptive easement.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. We use a de novo standard when reviewing a grant of summary judgment. Moss v. Batesville Casket Co., 935 So.2d 393, 398(¶ 15) (Miss.2006). Summary judgment is proper only where the evidence shows that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. at 398(¶ 16) (quoting M.R.C.P. 56(c)). The Mearns and the Koenenns, as the parties moving for summary judgment, bear the burden of proving that no genuine issue of material fact existed. Id. On the other hand, the Appellants are to be given “the benefit of every reasonable doubt.” Id. (citing Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990)). “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Id. at 398(¶ 17) (quoting Tucker, 558 So.2d at 872). When making our determination, we view the record in “the light most favorable to the non-moving party,” here the Appellants. Id. at 399(¶ 17) (citations omitted).

The Ten Years Prior to the Temporary Easement

¶ 9. A prescriptive easement requires the same elements to be proven as does a successful claim for adverse possession. Keener Props., L.L.C. v. Wilson, 912 So.2d 954, 956(¶ 4) (Miss.2005). In short, “the evidence must show that possession is: (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Id. (citing Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1153 (Miss.1992)). The Appellants could not meet these elements during the period of the temporary easement, because the Webbs’ use of the property during that time was clearly permissive, not hostile. Therefore, we must look at the ten years prior to the temporary easement and the ten years after the temporary easement, as the Appellants claim that they proved the elements for a prescriptive easement during both of these periods.

¶ 10. The Webbs received their property from Turner on May 22, 1979, and the temporary easement began on March 14, 1989. Therefore, the Webbs owned their property for only nine years and ten months before the temporary easement, an insufficient time to meet the prescriptive easement requirements. However, a property owner may “tack” the possession of a prior owner in privity under some circumstances. See Rutland v. Stewart, 630 So.2d 996, 999 (Miss.1994).

¶ 11. Tacking is appropriate only where the prior owner’s possession was also adverse and hostile. Gillespie v. Kelly, 809 So.2d 702, 706-07(¶ 14) (Miss.Ct.App.2001). In this case, the evidence does not show that Turner’s use of the property was hostile. The only evidence supporting such a claim is a statement in Michael Webb’s affidavit that “at the time we purchased our property in 1979, it was represented to me by the realtor ... that access to and from our property was by way of Corrie’s Place ... that this was the only access to our property, and that prior owners accessed the property in this manner.”

¶ 12. By contrast, L.A. Koenenn swore in his affidavit that “[t]he owner prior to Mr. Webb did not use the road without my permission....” Therefore, Koenenn averred that any use of the road by Turner was with the Koenenns’ permission. No evidence was presented by the Appellants to refute this evidence, other than Michael Webb’s statement that his realtor told him that Turner used the road to access his property. Accepting Webb’s statement as true, it does not necessarily conflict with L.A. Koenenn’s averment that Turner’s use of the road was by permission. If Turner’s use of the road was with permission, the realtor clearly still could have told Michael Webb that Turner used the road to access his property. Nothing in Michael Webb’s affidavit indicates that Turner must have used the road without permission. In the absence of any evidence that Turner’s use of the road was hostile, the Appellants cannot tack Turner’s possession to their own. Therefore, summary judgment was proper as to the ten years prior to the temporary easement, as the Appellants have failed to show a genuine issue of material fact regarding one of the requirements for a prescriptive easement, specifically the requisite ten year possession.

The Ten Years After the Temporary Easement

¶ 13. In its grant of summary judgment, the court discussed the ten years prior to the temporary easement at length, ultimately finding that “[t]he permissive use time of J. Ed. Turner cannot be tacked to the time claimed by the Plaintiffs Webb [sic] and therefore, there is no genuine issue of material fact regarding the required 10 year adverse possession.” As previously discussed, we agree with this finding by the chancellor. The ten years after the temporary easement, however, was not specifically discussed by the chancellor. Therefore, this Court has no actual knowledge of why the chancellor found that summary judgment was proper as to the ten years after the temporary easement.

¶ 14. The Koenenns and the Mearns urge this Court to find that summary judgment was proper as to the ten years after the temporary easement by virtue of the fact that the temporary easement created a permissive use of the roadway. Permissive use prevents a prescriptive easement from forming: “use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription, since adverse use, as distinguished from permissive use, is lacking.” Sharp v. White, 749 So.2d 41, 42 — 43(¶ 8) (Miss.1999) (quoting Patterson v. Harris, 239 Miss. 774, 785, 125 So.2d 545, 550 (1960)). “To transform a permissive use into an adverse one there must be (1) a distinct and positive assertion of a right hostile to the rights of the owner, which is brought to his attention, or (2) a change in the character of the use.” Patterson, 239 Miss, at 785, 125 So.2d at 550 (citations omitted).

¶ 15. We find that these principles of law do not justify summary judgment for two reasons. First, this case deals with a temporary permissive use that had a specific termination date. There was no extension of the temporary easement. Therefore, any use after the termination of the temporary easement was clearly without permission and would have been hostile. In this situation, the Patterson test for determining whether a permissive use became hostile simply does not apply. Second, even if these standards applied in this case, the nature of the Webbs’ use of the land clearly changed after the termination of the temporary easement. The purpose of the temporary easement was to allow timber to be removed from the Webbs’ property. By contrast, Michael Webb claims that he and others used the property for occasional recreational purposes, such as hunting. This use would clearly constitute a “change in the character of the use,” and would thus be sufficient to overcome the temporary easement. Therefore, even if the standard applied in this case, the evidence would be sufficient to create a genuine issue of material fact sufficient to overcome summary judgment.

¶ 16. Although L.A. Koenenn and his son claim in their respective affidavits that any use of the land by Webb was with permission, or that Webb never used the land after 1990, Michael Webb claims the opposite in his affidavit. In his affidavit, Webb claims:

since we purchased our property ... we have used Corrie’s Place, including the 330-foot portion at issue, as the sole access to our property. Furthermore, over the years I have maintained Corrie’s Place ... by clearing it of brush, trees and other debris, as well as leveling it on occasion.... That on several occasions over the years, including during the 1980s, we have leased our property for hunting purposes to various persons ... [who] accessed our property by way of Corrie’s Place, including the 330-foot portion at issue. That since our purchase of the property ... I also visited our property three to four times per year to hunt, check the boundaries and the tree lines.

This evidence stands in stark contrast to the statement in the Koenenns’ affidavits that there was no evidence of use of the road after the temporary easement. Further, we note that L.A. Koenenn’s assertion that any use by Webb was with permission makes no sense in light of Koenenn’s statement in his affidavit that, to his knowledge, Webb never used the property after the temporary easement. It is unclear to this Court how a use could both be unknown to the owner and yet be with the owner’s permission.

¶ 17. In short, there was contradictory evidence regarding Webb’s use of the property after the termination of the temporary easement. Therefore, summary judgment was improperly granted in this case, at least as to the ten-year period after the termination of the 1989 temporary easement.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES.

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

      . The chancellor in this case mentioned these standards, but did not discuss them in relation to the ten years after the temporary easement. Regardless, the Koenenns and the Mearns urge this Court to find that these standards justify summary judgment as to the ten years after the temporary easement.


text:
    Jerry Ross BRUNSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00903-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.

      Michael Duane Mitchell, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. Following a jury trial, Jerry Ross Brunson was convicted of selling cocaine to an informant. Brunson was sentenced by the Jones County Circuit Court as a habitual offender to a term of sixty years in the custody of the Mississippi Department of Corrections. Aggrieved, Brunson appeals and asserts that the trial court erred in failing to dismiss the indictment for violation of the statutory 270-day rule, that the evidence introduced at trial was insufficient to support the jury’s guilty verdict, and that the jury’s verdict is against the overwhelming weight of the evidence.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On December 21, 2002, Yvonne Gan-dy, a confidential informant, and her husband, Curtis Chambers, went to the Laurel, Mississippi narcotics office, where they were searched and wired with electronic surveillance equipment. Immediately after leaving the narcotics office, the couple went to Brunson’s residence, located at 811 Beacon Street, to purchase forty dollars worth of cocaine. Brunson informed Gan-dy that he had only fifteen dollars worth of cocaine, but he made a call in an attempt to obtain more.

¶ 4. Gandy recorded the sale using the video and audio equipment provided by the narcotics division. The video shows Brun-son going upstairs and then returning to Gandy. The narcotics agents listened as the sale took place, and the audio recording was later transcribed. On January 4, 2003, after viewing the videotape, agents returned to Brunson’s residence and arrested him. He later made bond and was released.

¶ 5. Brunson was arraigned on April 15, 2004, and his case was set for trial on August 17, 2004. Following arraignment, Brunson changed attorneys, and the court set a new trial date of September 30, 2004. On September 15, 2004, Brunson signed a petition to plead guilty. He was supposed to enter the plea on October 8, but he failed to appear. A bench warrant was issued on October 13, and Brunson was rearrested on November 22, 2004.'

¶ 6. At trial, Gandy testified that she had not met Brunson prior to December 21, 2002, and she did not know his real name at the time of the sale. However, Gandy identified Brunson in court as the man from whom she had purchased cocaine. She also stated that she knew Brunson only by his “street” name. In contrast, Brunson testified that Gandy knew who he was because they had previously been involved in a sexual relationship and had smoked crack cocaine together on a prior occasion.

¶ 7. The jury was presented a copy of the transcript of the audiotaped recording of the sale. The arrest warrant, as well as the transcript, listed the person selling the drugs as Jerry Ross, and not as Jerry Ross Brunson. The narcotics officers did not learn Brunson’s full name until after he was brought to the station. On January 5, 2003, the officers completed a second arrest warrant with Brunson’s full name.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 8. Brunson contends that his statutory and constitutional rights to a speedy trial were violated. Allegations that a defendant’s right to a speedy trial have been violated are fact specific and are examined and determined on a case-by-case basis. Brengettcy v. State, 794 So.2d 987, 991(¶ 7) (Miss.2001) (citing Sharp v. State, 786 So.2d 372, 377(¶4) (Miss.2001)). Criminal defendants have a constitutional right to a speedy trial, guaranteed by the Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution. Id. In addition, Mississippi Code Annotated section 99-17-1 (Rev.2000) provides, “[ujnless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” We discuss the speedy trial issues in turn, first the statutory right and then the constitutional right.

1. Statutory Right to a Speedy Trial

¶ 9. For purposes of the 270-day rule, time commences to run at arraignment. Miss.Code Ann. § 99-17-1 (Rev. 2000). As noted in our statement of facts, Brunson was arraigned on April 15, 2004, and was initially set for trial on August 17. The trial date was changed to September 30 after Brunson changed lawyers. On September 15, 2004, Brunson signed a petition to plead guilty but failed to appear on October 8 to enter his plea. Brunson was tried on April 21, 2005, after being rearrested on November 22, 2004. A total of 371 days transpired between the date of Brunson’s arraignment and the date of his trial.

¶ 10. As we have already noted, Brun-son’s case was first set for trial on August 17, 2004. He changed lawyers, and the trial date was changed to September 30. The record does not contain a motion seeking, or an order changing, the new date. However, a reasonable assumption is that new counsel sought the change. The trial judge did not address the time period between August 17 and September 30. However, he found that the prosecution was prepared to proceed to trial on September 30, 2004, the date of the second trial setting. Apparently no trial occurred on this date because two weeks earlier Brunson had executed a plea petition and was supposed to plead on October 8. On these facts, we find that the entire period of time between the initial trial date of August 17 and the trial date should be charged against Brunson. Therefore, of the 371 days elapsing between the date of Brunson’s arraignment and the date of his trial, 247 days are chargeable to Brunson, leaving only 124 days chargeable to the State. We agree with the trial judge that, but for Brunson’s own actions, Brunson would have been tried on September 30, 2004. In fact, had he not changed lawyers, he likely would have been tried on August 17, 2004. In any event, a trial on either date would have been within 270 days of Brunson’s arraignment. Because there was no statutory violation, it is not necessary to address the State’s responsibility to establish good cause for the delay in bringing Brunson to trial. “Delays attributable to the defendant toll the running of time.” Spencer v. State, 592 So.2d 1382, 1387 (Miss.1991) (citing Vickery v. State, 535 So.2d 1371, 1375 (Miss.1988)).

2. Constitutional Right to a Speedy Trial

¶ 11. This Court applies the four-part test delineated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) in speedy trial analyses to determine whether the defendant’s constitutional right to a speedy trial has been impinged upon. Fulgham v. State, 770 So.2d 1021, 1023(¶6) (Miss.Ct.App.2000). The four factors are: “(1) length of delay, (2) reason for delay, (3) defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant.” Barker, 407 U.S. at 533, 92 S.Ct. 2182.

¶ 12. In Spencer, the Mississippi Supreme Court held that a delay of eight months or more is presumptively prejudicial. Id. (citing Smith v. State, 550 So.2d 406, 408 (Miss.1989)). The Spencer court further held that the length of delay operates as a “triggering mechanism,” and in cases where the delay is not presumptively prejudicial, there is no need for further inquiry. Id. We now consider the Barker factors in turn.

(A) Length of delay

¶ 13. In determining whether there has been a constitutional speedy trial violation, the time computation begins with the date of the arrest. Brunson was arrested on January 4, 2003, and was tried on April 21, 2005. Therefore, 837 days elapsed between the date of Brunson’s arrest and the date of his trial. Since this number of days constitutes more than eight months, we find that the delay is presumptively prejudicial, necessitating a further analysis of the Barker factors.

(B) Reason for delay

¶ 14. In our discussion of the previous issue, we found that Brunson was responsible for 247 days of the delay, leaving 590 days to be accounted for by the State. The record is silent as to any cause for this delay. Therefore, we weigh this factor against the State.

(C) Defendant’s assertion of his right to a speedy trial

¶ 15. Brunson never asserted his right to a speedy trial. The day before his trial commenced, he filed a motion to dismiss for violation of the statutory 270-day rule. However, a motion to dismiss is not the same as a motion for a speedy trial. Brewer v. State, 725 So.2d 106, 118(¶ 47) (Miss.1998). While the responsibility for bringing Brunson to trial rested solely with the State, Brunson could have garnered some weight, for purposes of his speedy trial claim, had he made a timely assertion of his right to a speedy trial. Wiley v. State, 582 So.2d 1008, 1012 (Miss.1991). Therefore, this factor weighs only slightly against the State.

(D)Prejudice to the defendant

¶ 16. Here, Brunson makes no allegation of prejudice caused by the delay. Indeed, he promptly made bond after he was arrested in January 2003 and remained out of jail on bond until he failed to appear on October 8, 2004, to enter his plea as initially scheduled. A bench warrant was then issued for his arrest, which was executed on November 22. While he apparently remained in jail from November 22 to the date of trial, Brunson himself caused this situation, because he failed to appear for the plea hearing on October 8.

¶ 17. In summary, although Brunson was presumptively prejudiced by the delay in bringing him to trial, he has neither alleged nor shown that he was in fact prejudiced. In the absence of prejudice, we cannot find that Brunson’s constitutional right to a speedy trial was violated. State v. Magnusen, 646 So.2d 1275, 1285 (Miss.1994).

2. Sufficiency of the Evidence

¶ 18. A motion for a directed verdict challenges the legal sufficiency of the verdict. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Evidence is legally sufficient when “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The evidence is sufficient if, upon review, it reveals that “reasonable fair-minded [persons] could have reached different conclusions on every element of the offense.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss. 1985)). This Court will consider the evidence in the “light most favorable to the State.” Id. at 843(¶ 17).

¶ 19. Brunson contends that the evidence against him is insufficient to support the jury’s guilty verdict, and that the trial court erred in denying his motion for a directed verdict. First, Brunson contends that the videotape does not show the actual drug transaction. However, Brunson does not dispute that he is the person with money in his hand in the still photograph taken from the video equipment. Brunson simply argues that he committed no crime by possessing money in his own home. While Brunson is correct, the transcript of the audiotape clearly indicates that Brun-son is guilty of more than simply possessing money in his home. It shows emphatically that Brunson was engaged in a drug transaction, ie., that is selling cocaine to Gandy. Gandy approached Brunson and said, “I want something. Forty.” Brun-son responded, “I ain’t got no forty, I got one little fifteen.” The photograph clearly shows that Brunson had a five-dollar bill in his hand. It can reasonably be inferred that Brunson was giving the five-dollar bill back to Gandy after she had given him one of the twenty-dollar bills which had been given to her by the Laurel narcotics agents.

¶20. Second, Brunson contends that his conviction rests on the testimony of Gandy, who previously has been convicted of forgery, a felony, which renders her untrustworthy. This argument lacks merit because Gandy testified in open court, subjecting herself to cross-examination. Additionally, the jury is in a better position to determine whether Gandy’s testimony lacked credibility. It is the responsibility of the jury to weigh the credibility of a witness. Jackson v. State, 614 So.2d 965, 972 (Miss.1993).

¶ 21. Third, Brunson argues that Gandy had a financial stake in the outcome of his case because she was being paid to purchase drugs. We find no merit to this argument. Agent Van Syckel testified that informants are paid something even if they do not complete a drug transaction.

¶ 22. Although Brunson makes an issue of the fact that Gandy did not know his real name, the State presented sufficient evidence from which the jury could determine that Brunson is the person with whom Gandy dealt. For example, Van Syckel testified that in situations where the informant does not recognize the suspect, other officers who are familiar with the suspect view the videotape and identify the person. This is exactly what happened in this case. Narcotics Agent Trea Staples testified that when he watched the video, he immediately recognized Brunson as someone he had seen before, but he could not recall his name. After further investigation, Brunson was identified, and the arrest warrant was corrected to indicate that Jerry Ross Brunson was the person who sold cocaine to Gandy.

¶ 23. Based on the reasons stated above, we find that the trial court did not err in refusing to grant Brunson’s motion for a directed verdict.

3. Weight of the Evidence

¶ 24. This Court will only disturb a jury’s verdict on the ground that it is against the overwhelming weight of the evidence “when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at (¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). The Bush court stated, “[t]he motion ... should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)). “The evidence should be weighed in the light most favorable to the verdict.” Id. (citing Herring, 691 So.2d at 957).

¶ 25. In addition to the arguments already made in support of his motion for a directed verdict, Brunson contends that the verdict was against the overwhelming weight of the evidence because he was not the only individual at the residence when Gandy claims to have purchased the cocaine. The record is clear that others were present at the time Gandy came to Brunson’s home, but Gandy testified that Brunson was the person from whom she purchased cocaine. Additionally, Brunson appears in the photographs from the videotape.

¶ 26. This Court has already found the evidence sufficient to support Brunson’s conviction. Similarly, we find that Brun-son’s conviction was not against the overwhelming weight of the evidence, and allowing his conviction to stand will not sanction an unconscionable injustice. Therefore, we affirm Brunson’s conviction and sentence.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF CONVICTION OF THE SALE OF COCAINE AND SENTENCE OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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

      . Although Brunson states in his brief that his constitutional, as well as his statutory, right to a speedy trial was violated, he only briefed the statutory claim. Nevertheless, we briefly address both claims.


text:
    William HAWTHORNE, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-02550-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.

      Aelicia L. Thomas, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. Following a jury trial, William Hawthorne was convicted of aggravated assault and was sentenced by the Sunflower County Circuit Court to twenty years in the custody of the Mississippi Department of Corrections. Aggrieved, Hawthorne appeals and asserts that the trial court erred in excusing a juror, and in refusing to grant his motions for a mistrial, a directed verdict, and a judgment notwithstanding the verdict. Hawthorne also asserts that the jury’s verdict was against the overwhelming weight of the evidence.

¶2. We find no error; therefore, we affirm Hawthorne’s conviction and sentence.

FACTS

¶ 3. On the morning of March 22, 2003, Earnestine Woodard and her nephew, twelve-year old Demetrius Woodard, left her home to spend the day fishing. Hawthorne, the father of Woodard’s two children, joined Woodard and Demetrius at around 2:30 p.m. and fished with them for about an hour. Shortly after Hawthorne left, Woodard and Demetrius returned to her home. Woodard put the fish they had caught in the freezer and prepared to go to a casino in Greenville, Mississippi with Bobbie Pitts and Pitts’ sister.

¶ 4. At trial, Woodard testified that she was she traveling north on Highway 49 toward Blaine, where she and Pitts were going to pick up Pitts’ sister. While driving, Woodard testified that she saw Hawthorne, who was headed in the opposite direction, toward Sunflower. Woodard testified that, after seeing her vehicle pass him, Hawthorne turned around and started to follow her. As they neared Blaine, Woodard was unable to leave Highway 49 to get Pitts’ sister, because Hawthorne was tailing Woodard. As a result, Woodard continued to drive into Doddsville, where she turned around to go back to Blaine. On the way back to Blaine, Woodard testified that Hawthorne attempted to run her car off the road.

¶ 5. In an attempt to get away from Hawthorne, Woodard and Pitts drove to W.M. Pratt’s house in Blaine, where they believed they would be safe. Upon their arrival at Pratt’s house, both Woodard and Pitts exited the vehicle. Woodard testified that she then told Hawthorne to leave them alone and to stop following them. Pitts and Woodard both attempted to make their way into Pratt’s house; Pitts made it inside, but Woodard was confronted by Hawthorne as she reached the steps of the house. As Woodard attempted to enter the house, she turned and saw Hawthorne pointing a gun at her. Woodard said that she asked him not to shoot her, but he pulled the trigger anyway, hitting her in the right arm. Woodard slipped and fell as she tried to run into the house. Hawthorne then shot Woodard in her lower back, chest, rib area, and left shoulder.

¶ 6. Woodard testified that she kicked the gun out of Hawthorne’s hand just as he was about to shoot her a sixth time. Woodard attempted to shield herself between her vehicle and Pratt’s vehicle, but Hawthorne grabbed her from behind, hit her in the head, and slammed her to the ground. Hawthorne then proceeded to stomp the side of Woodard’s face with the heel of his boot. Woodard stayed on the ground, pretending to be dead, and Hawthorne fled the scene.

¶ 7. According to Woodard, she did not know why Hawthorne attacked her. Woodard testified that Hawthorne had never threatened her on any previous occasion. However, Demetrius testified that Hawthorne told him, prior to the shooting, that he was going to kill Woodard. Demetrius confirmed that Woodard was not present when Hawthorne made this statement.

¶ 8. Several individuals testified that they witnessed the shooting by looking out of the house’s windows. All of the witnesses, as well as the officers who responded to the incident, testified that Woodard did not have a weapon in her possession at the time of the shooting. The witnesses also testified that Woodard covered her face with her hands during the shooting.

¶ 9. Shortly after Hawthorne fled, emergency personnel arrived at the scene. Woodard was taken to a hospital, and was later transferred to a different hospital. Two days after the shooting, Woodard was released from the hospital. Dr. Allen Billsby testified that Woodard suffered five gunshot wounds, three of which left both entrance and exit wounds. Several of the bullets remain inside Woodard to the present.

¶ 10. Hawthorne turned himself in to the Sunflower County Sheriffs Department the day after the shooting. Hawthorne provided a written statement to Bennie Walker, a deputy sheriff with the Sunflower County Sheriffs Department at the time of the incident. In the statement, Hawthorne admitted that he argued with Woodard and that he shot her several times. Hawthorne never mentioned in his written statement that Woodard had a weapon at the time of the shooting, even though he claimed at trial that he shot her in self-defense because she had a fishing knife.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Excusing Juror For Cause

¶ 11. Hawthorne contends that the trial court erred in excusing a juror, Lu-cette Townsend, for cause after she stated that she could not sit in judgment of another person. Hawthorne argues that the trial court abused its discretion in replacing Townsend with an alternate juror because Townsend was replaced simply to prevent her from being inconvenienced. Hawthorne also contends that the trial court erred by failing to further examine Townsend to determine the reason why she felt that she could not serve on the jury. Despite Hawthorne’s contention, the record reflects that Townsend was excused because she adamantly stated that she would not be able to judge Hawthorne fairly, and that she could not vote to deprive a person of his liberty. Thus, Townsend had no intention of following the law. Townsend also stated that if she were to remain on the jury, the trial would likely end with a hung jury.

¶ 12. All prospective jurors were asked on voir dire whether anyone had a problem being fair and impartial; however, Townsend did not bring to the court’s attention her reservations about serving on the jury until after all peremptory challenges had been used and the jury had been impaneled.

¶ 13. Mississippi Code Annotated section 13-5-67 (Supp.2006) provides in part that “alternate jurors ... shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties.” Townsend was excused immediately following the impaneling of the jury; thus, the trial judge was clearly within the time frame provided in section 13-5-67. In addition, Mississippi Code Annotated section 13-5-79 (Supp.2006) states that “[a]ny juror shall be excluded ... if the court be of the opinion that he cannot try the case impartially, and the exclusion shall not be assignable for error.”

¶ 14. It has long been recognized as a fundamental principle of law that every defendant is entitled to a fan-trial by an impartial jury. Reed v. State, 764 So.2d 496, 499(¶ 9) (Miss.Ct.App.2000) (citing Collins v. State, 99 Miss. 47, 50, 54 So. 665, 665 (1910)). “The right to a fair trial by an impartial jury is fundamental and essential to our form of government. It is a right guaranteed by the both the state and federal constitutions.” Id. (citing Simon v. State, 688 So.2d 791, 803 (Miss.1997)). “A person is competent to be a juror if the juror has no interest, bias or prejudice in the prosecution, and the juror has no desire to reach a result other than that gained from the evidence and the law in the case.” Id. (citing Johnson v. State, 666 So.2d 784, 794 (Miss.1995)).

¶ 15. An issue similar to the issue in this case was presented to this Court in Reed v. State, 764 So.2d 496 (Miss.Ct.App.2000). In Reed, a juror’s prejudice in favor of a defendant was not disclosed until after the conclusion of voir dire. Id. at 501(¶ 18). On appeal, Reed claimed that the court “should have found out [that the juror] had a bias before the end of voir dire.” Id. We found that, regardless of the fact that the juror’s prejudice was discovered only after voir dire, the juror was properly excused. Id. We noted that “[i]t is not constraint to refuse to allow an impartial juror to sit on a jury; it is insuring the proper operation of thé justice system.” Id. at 501(¶ 19). Reed is also similar in that the juror’s prejudice in Reed was in favor of the defendant, as the juror’s personal conviction here would have operated in Hawthorne’s favor. Id. We noted that it did not matter that the juror’s prejudice would have proven beneficial for the defendant. Id. This Court stated, and now reiterates, that allowing an incompetent juror to serve would corrupt the judicial process, even if the prejudice works in favor of the defendant. Id.

¶ 16. In light of the statements made by the juror, and upon finding that the trial judge properly examined Townsend, we conclude that the judge did not abuse his discretion in granting the State’s motion to excuse her for cause.

2. Motion for Mistrial

¶ 17. Hawthorne contends that the jury was tainted by Townsend’s angry outburst. Following Townsend’s actions, the trial judge admonished the jury to disregard her comments. In addition, the judge asked the jury if Townsend’s comments affected their ability to serve as a juror, and no juror responded affirmatively. Nevertheless, Hawthorne moved for a mistrial, arguing that the statements were sufficient grounds to declare a mistrial.

¶ 18. The Mississippi Supreme Court has held that it will only reverse the trial court’s failure to grant a mistrial in instances where the trial court abused its discretion in overruling the motion. Bass v. State, 597 So.2d 182, 191 (Miss.1992) (citing Ladner v. State, 584 So.2d 743, 753 (Miss.1991)). Townsend’s comments were not directed toward Hawthorne, and it is clear that Townsend simply did not wish to serve on the jury. Thus, the trial judge did not abuse his discretion in admonishing the jury and allowing the trial to proceed as scheduled.

3. Motion for Directed Verdict

¶ 19. Hawthorne contends that the trial court erred in failing to grant his motion for a directed verdict; however, the record does not reflect that the trial court ruled on the motion. Rule 2.04 of the Uniform Rules of Circuit and County Court provides, “[i]t is the duty of the movant, when a motion or other pleading is filed, including motions for a new trial, to pursue said motion to hearing and decision by the court.” Therefore, pursuant to Rule 2.04, this issue is procedurally barred. Nevertheless, procedural bar notwithstanding, we find that the evidence was sufficient to support the jury’s verdict, and Hawthorne’s contentions to the contrary are without merit.

¶ 20. A motion for a directed verdict challenges the legal sufficiency of the trial court’s ruling. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). We find that the evidence is sufficient to sustain the trial court’s denial of a motion for a directed verdict where “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In Bush, the Mississippi Supreme Court stated, “if a review of the evidence reveals that it is of such a quality and weight that, ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded [persons] in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). This Court reviews the evidence in the light most favorable to the prosecution. Id.

¶ 21. Hawthorne contends that the trial court’s verdict should not stand because a “fair-minded” jury could have concluded that he acted in self-defense. As support for his contention that Woodard had a knife at the time of the attack, Hawthorne points out that Woodard always takes a knife with her when she goes fishing. However, Hawthorne fails to recognize that Woodard was not fishing at the time of the attack. Woodard testified that she had taken the fish home and was going out for the evening when she was attacked by Hawthorne.

¶22. Hawthorne’s contention that the State provided no testimony other than Woodard’s to prove that she was not the aggressor is simply not true. The State produced four witnesses, in addition to Woodard, all of whom testified that Woodard did not have a knife, or any other weapon, at the time of the incident. Hawthorne points out that Troy Wilkinson, who was present at the house and witnessed the incident, testified on cross-examination that “it was probably true” that Woodard could have had a weapon before he saw her. However, upon thorough review of Wilkinson’s testimony, we find that he also stated that he had never known Woodard to carry a weapon, nor did he see Woodard with a knife at the time of the attack. Furthermore, no knife was found at the scene. Wilkinson also testified that, as Woodard was being shot, she covered her face with her hands and rolled on the ground.

¶ 23. Notably, in his statement, Hawthorne never mentioned that Woodard had a knife. Similarly, Hawthorne did not mention anything to Hessie Murry about Woodard having a knife.

¶ 24. Based on the evidence recounted above, we find that a rational trier of fact could have found the essential elements of the crime of aggravated assault beyond a reasonable doubt.

k. Weight of the Evidence

¶ 25. “When reviewing a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand will sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). Whether to grant the motion is within the discretion of the trial court and should be granted “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)).

¶26. In light of the above discussion, and viewing the evidence in the light most favorable to the prosecution, we find that Hawthorne’s conviction is not against the overwhelming weight of the evidence, and allowing it to stand will not sanction an unconscionable injustice.

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

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

      . By contrast, Pitts testified that Hawthorne was parked on a dirt road between Blaine and Sunflower, and that he turned off the dirt road to follow them when he saw Woodard's vehicle.

      . Hawthorne asked Walker to write the statement for him because his writing skills are limited.

      . Murry was the deputy from the Sunflower County Sheriffs Department who accompanied Hawthorne to the location of the gun which was used in the shooting.

      . Mississippi Code Annotated section 97-3-7 (Rev.2006) defines aggravated assault as "attempt[ing] to cause or purposely or knowingly causfing] bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm....”


author: CHANDLER, J.,

text:
    James Emory GARNER, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01520-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.

      James Emory Garner, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On November 5, 2001, James Emory Garner pled guilty to armed robbery. Garner filed a motion for post-conviction relief (PCR) from that conviction entitled “Motion to Vacate and Seh-Aside Armed Robbery Conviction and Sentence and to Withdraw Guilty Plea.” The PCR was denied by the trial court.

¶ 2. Garner appeals pro se, arguing (1) that the Circuit Court of Monroe County lacked the power to accept his guilty plea to a Lee County charge; (2) that his guilty plea was involuntary because the trial court gave him erroneous information about his parole eligibility and he was never informed of the minimum sentence for armed robbery; (3) that he received ineffective assistance of counsel; (4) that the trial court erred by accepting his guilty plea when he had been without psychiatric medication for five days; (5) that his plea was involuntary because there was no factual basis for his plea to armed robbery; and (6) that the indictment did not properly charge him with armed robbery.

¶ 3. We find that Garner’s indictment did not charge Garner with exhibiting a deadly weapon and, therefore, failed to charge him with an essential element of the crime of armed robbery. The indictment did describe simple robbery; therefore, the trial court had jurisdiction to accept Garner’s guilty plea to simple robbery. Neal v. State, 936 So.2d 463, 470(¶ 22) (Miss.Ct.App.2006). However, the record reflects that Garner was not informed about the true nature of the charge against him, or of its consequences. For that reason we cannot say that Garner entered a voluntary guilty plea to simple robbery. Consequently, the trial court erred by denying Garner’s motion to withdraw the guilty plea. We reverse Garner’s conviction of armed robbery, vacate Garner’s guilty plea, and remand for further proceedings on the simple robbery charge.

FACTS AND PROCEDURAL HISTORY

¶4. The procedural history of this appeal is enmeshed with the history of another plea of guilt to armed robbery which Garner made at the same time as the instant guilty plea. On June 14, 2001, a Monroe County grand jury indicted Garner for armed robbery. On February 7, 2001, a Lee County grand jury returned an indictment against Garner, which stated in pertinent part:

That James E. Garner in said County and State on the 30th day of October, A.D.2000, did wilfully, unlawfully and fe-loniously in and upon Donna Gann, agent and employee of Litco Petroleum Co., Inc., d/b/a Exxon Express Shop # 2 then and there did unlawfully and felo-niously make an assault on the said Donna Gann, agent and employee of Litco Petroleum Co., Inc., d/b/a Exxon Express Shop # 2, and did then and there feloniously put her in fear of immediate injury to her person, by representing that he has a pistol when in fact he was pointing a finger concealed by a coat at the cashier and demanded the cash from the store cash register, and from her presence and against her will did felo-niously and unlawfully rob, take, steal and carry away $270.00, the personal property of Litco Petroleum Co., Inc., d/b/a Exxon Express Shop # 2; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Mississippi.

¶ 5. On November 5, 2001, the Circuit Court of Monroe County accepted Garner’s guilty pleas to both the Monroe County charge and the Lee County charge. The trial court referred to both charges as charges of armed robbery. The court ascertained that Garner understood that by pleading guilty he would waive certain constitutional rights. The court read both indictments and Garner stated that he understood each charge and admitted that he had performed the acts charged in each indictment. The court informed Garner of the maximum sentence for armed robbery. The court accepted the State’s sentencing recommendation and sentenced Garner to twenty years on each count of armed robbery, to run concurrently with each other and concurrently with Garner’s sentences in two prior, unrelated convictions. Two separate judgments of conviction for armed robbery were entered against Garner, one in Monroe County on the Monroe County charge and one in Lee County on the Lee County charge.

¶ 6. On or about June 23, 2003, Garner filed a PCR pertaining to the convictions in the Circuit Court of Monroe County. The trial court ordered the State to file an answer pursuant to Mississippi Code Annotated section 99-39-11(3) (Supp.2006) and subsequently denied the PCR. On February 14, 2006, this Court reversed and remanded the case for an evidentiary hearing concerning Garner’s allegation that his plea was involuntary due to erroneous advice about parole eligibility and his claim of ineffective assistance of counsel. See Garner v. State, 928 So.2d 911, 915(¶ 17) (Miss.Ct.App.2006). We found that the trial court had advised Garner incorrectly that he would be eligible for parole after serving the first ten years of his sentence, when in reality Garner’s entire sentence was without parole eligibility pursuant to Mississippi Code Annotated section 47 — 7—3(1)(d)(ii) (Supp.2006). Id. at 914(¶ 10). In so holding, we observed that, pursuant to section 99-39-9(2), a PCR must be limited to seeking relief from one judgment only and, therefore, Garner’s PCR was limited to his Monroe County armed robbery conviction. Id. at 913(¶ 5).

¶ 7. On September 14, 2003, Garner filed the instant PCR in the Circuit Court of Lee County challenging the Lee County armed robbery conviction. On December 20, 2004, the court denied the PCR based on the court’s earlier rejection of Garner’s arguments concerning the Monroe County conviction. Garner appeals. For clarity, we have restated several of Garner’s issues.

STANDARD OF REVIEW

¶ 8. When reviewing the denial of post-conviction relief, we will reverse the fact-findings of the trial court where those findings are clearly erroneous. Boddie v. State, 875 So.2d 180, 183(¶ 6) (Miss.2004). Questions of law are reviewed de novo. Id. Moreover, section 99-39-27(5) instructs this Court to examine the entire record to determine whether the petitioner has made a substantial showing of the denial of a state or federal right. Moore v. Ruth, 556 So.2d 1059, 1061 (Miss.1990).

LAW AND ANALYSIS

I. WHETHER GARNER’S GUILTY PLEA TO A LEE COUNTY CHARGE WAS PROPERLY ACCEPTED IN THE CIRCUIT COURT OF MONROE COUNTY.

¶ 9. Garner contends that he was never properly arraigned or appointed counsel on the Lee County charge because the Circuit Court of Monroe County lacked the power to accept his guilty plea to a Lee County charge. While Garner characterizes this deficit as a lack of subject matter jurisdiction, his arguments pertain to the proper venue for his guilty plea. The Circuit Court of Monroe County had subject matter jurisdiction to accept a guilty plea to a crime properly charged by the State of Mississippi pursuant to Mississippi Code Annotated section 9-7-81 (Rev.2002), which provides that circuit courts have jurisdiction to “hear and determine all prosecutions in the name of the state for felonies, crimes, and misdemeanors .... ”

¶ 10. The propriety of the Circuit Court of Monroe County’s acceptance of Garner’s guilty plea to a Lee County charge is established by Mississippi Code Annotated section 99-15-24 (Rev.2000). That section governs venue for guilty pleas, and provides that, in criminal cases in circuit courts, guilty pleas may be taken in any county in the circuit court district that contains the county in which venue lies. Miss.Code Ann. § 99-15-24. Mississippi Code Annotated section 99-15-35 (Rev. 2000) indicates that the usual venue is the county where the offense is charged to have been committed.

¶ 11. Garner’s offense was charged to have been committed in Lee County. Lee County is in the First Circuit Court District. Miss.Code Ann. § 9-7-5 (Rev.2002). Any other circuit court in the First Circuit Court District could have accepted Garner’s guilty plea. Miss.Code Ann. § 99-15-24. The Monroe County Circuit Court is in the First Circuit Court District. Miss.Code Ann. § 9-7-5. Therefore, the Monroe County Circuit Court was an appropriate venue for Garner’s guilty plea to the Lee County charge. Accordingly, all of Garner’s arguments dependent on the impropriety of the venue for the plea are without merit.

II. WHETHER GARNER IS ENTITLED TO AN EVIDENTIARY HEARING ON THE ISSUES PREVIOUSLY LITIGATED IN HIS EARLIER MOTION FOR POST-CONVICTION RELIEF.

¶ 12. The State concedes that Garner is entitled to an evidentiary hearing. In Garner’s appeal concerning his Monroe County conviction, due to the trial court’s erroneous advice about parole eligibility and Garner’s allegation that appointed counsel had similarly misinformed him, we held that Garner was entitled to an eviden-tiary hearing concerning the voluntariness of his guilty plea and whether he received ineffective assistance of counsel. Garner, 928 So.2d at 915(¶ 17). This PCR concerns Garner’s guilty plea to the Lee County charge that was entered at the same proceeding as the Monroe County charge. The plea colloquy pertained to both armed robbery charges. Though the Lee County judgment is the subject of this action, pursuant to the doctrine of collateral estoppel, the specific issues regarding Garner’s understanding of the minimum sentence and his parole eligibility and ineffective assistance of counsel concerning the erroneous parole advice are precluded from relitigation. Pickle v. State, 791 So.2d 204, 207(¶ 14) (Miss.Ct.App.2001).

¶ 13. Therefore, Garner is entitled to an evidentiary hearing on (1) whether his plea was involuntary due to erroneous information about his parole eligibility and (2) whether he received ineffective assistance of counsel due to counsel’s mistaken advice about his parole eligibility. See Garner, 928 So.2d at 915(¶ 17). However, as addressed below, the Lee County indictment evinces that Garner was charged with simple robbery, not armed robbery. Because the record reflects that Garner, his attorney, the prosecutor, and the trial court thought Garner had been charged with armed robbery, Garner’s guilty plea could not have been voluntary. The plea was constitutionally invalid and unenforceable, and Garner’s request to withdraw the plea is granted. We reverse and remand for further proceedings on Garner’s charge of simple robbery. This outcome obviates the need for an evidentiary hearing on voluntariness and ineffective assistance of counsel on Garner’s Lee County conviction.

III. WHETHER THE INDICTMENT PROPERLY CHARGED GARNER WITH ARMED ROBBERY.

¶ 14. An indictment serves the following purposes:

(1) to furnish the accused such a description of the charge against him as will enable him to make his defense and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause, (2) to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be obtained and (3) to guard against malicious, groundless prosecution.

Jefferson v. State, 556 So.2d 1016, 1021 (Miss.1989). A defendant has a constitutional right to be informed of the nature and cause of the accusation. U.S. Const, amend. VI; Miss. Const, art. 3, § 26. A valid guilty plea waives all technical and non-jurisdictional defects in an indictment. Brooks v. State, 573 So.2d 1350, 1355 (Miss.1990). A guilty plea does not waive any failure of the indictment to charge an essential element of the offense. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989).

¶ 15. Garner contends that his indictment failed to charge an essential element of armed robbery, namely, the exhibition of a deadly weapon. The definition of armed robbery is codified at Mississippi Code Annotated section 97-3-79 (Rev. 2006) and provides:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery ....

While Garner’s Monroe County indictment successfully charged Garner with all of the essential elements of armed robbery, his Lee County indictment stated that Garner had robbed Donna Gann by putting her in fear of immediate injury to her person “by representing that he has a pistol when in fact he was pointing a finger concealed by a coat at the cashier and demanded the cash from the store cash register .... ” The indictment did not specify the statutory section under which Garner was charged or state that the crime charged was armed robbery; it merely stated that Garner’s acts were “contrary to the form of the statute in such cases made and provided.” At the plea hearing, Garner admitted to having committed the acts charged in the indictment.

¶ 16. An indictment must be a plain, concise, and definite written statement of the essential facts constituting the offense charged. URCCC 7.06. It must fully notify the defendant of the nature of the charge and the cause of the accusation. Id. Plainly, the Lee County indictment contains no explicit charge of the exhibition of a deadly weapon. Nor did the indictment charge acts that would constitute the exhibition of a deadly weapon. In Dambrell v. State, 903 So.2d 681 (Miss. 2005), the supreme court reviewed Mississippi precedent concerning the exhibition of a deadly weapon element of the crime of armed robbery. The court held that the exhibition of a deadly weapon element is fulfilled “as long as the victim reasonably believes that the defendant has a deadly weapon and the defendant makes an overt act.” Id. at 689(¶ 32). The indictment charged Garner with effecting the robbery by placing the cashier in fear of immediate injury to her person by pointing a finger concealed in a coat at the cashier and representing that he had a pistol. Garner admitted to those acts at the plea hearing. But because the indictment omitted the “exhibition of a deadly weapon” element, Garner was not placed on notice that the State would attempt to prove that he had exhibited a deadly weapon. There is a fundamental difference between being properly charged with armed robbery through exhibition of a deadly weapon and the question of what proof suffices to establish that charge, which was the issue in Dambrell.

¶ 17. The indictment properly announced a charge of simple robbery. According to Mississippi Code Annotated section 97-3-73 (Rev.2006), “Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.” The three essential elements of robbery are: (1) felonious intent; (2) force or putting in fear as a means of effectuating the intent; and (3) by that means, taking and carrying away the personal property of another from the person or in his presence. Crocker v. State, 272 So.2d 664, 665 (Miss.1973). Garner’s indictment provided that he wilfully and feloniously placed the cashier in fear of immediate injury to her person by representing that he had a pistol, that he demanded the cash from the cash register, and that he robbed, stole, or carried away $270 in cash from the Exxon Express Shop. These statements articulated the essential elements of simple robbery. Miss.Code Ann. § 97-3-73.

¶ 18. Because Garner’s indictment failed to charge the essential elements of armed robbery, the circuit court lacked subject matter jurisdiction over the offense of armed robbery. Jefferson, 556 So.2d at 1021. But, the indictment properly charged Garner with the crime of simple robbery. This situation implicates our recent decision in Neal v. State, 936 So.2d 463 (Miss.Ct.App.2006). In Neal, the defendant was indicted for capital murder. Id. at 465(¶ 3). He later waived indictment for manslaughter and simple robbery and allowed his prosecution based on an information. Id. His attorney signed the waiver of indictment, certifying to the court that the elements therein had been explained to Neal. Id. at 471(¶ 27). Later, Neal’s attorney notified the court that Neal wanted to plead guilty to manslaughter and armed robbery. At the plea hearing, Neal represented to the court that the information was true. Id. He further stated that the killing occurred “while in the commission of a robbery of Mr. W.Q. Bradley by using the weapon of a 12-gauge pump shotgun.” Id. at 470(¶27). The court accepted Neal’s guilty plea to armed robbery. Id. at 466(¶ 4).

¶ 19. We recognized that, because Neal’s waiver of indictment did not describe armed robbery, the court lacked subject matter jurisdiction to accept Neal’s guilty plea to armed robbery. Id. at 466(¶ 9). We held that the court had jurisdiction to accept his plea to simple robbery, the crime for which Neal, in the information, agreed to be prosecuted. Id. at 470(¶ 22). After finding that Neal had not shown his guilty plea to simple robbery was involuntary, we reversed his conviction of armed robbery, rendered. the conviction as one for simple robbery, and remanded the case for sentencing on simple robbery. Id. at 470-71 (¶¶ 25-30).

¶ 20. Garner’s indictment properly charged him with simple robbery and, therefore, was sufficient to convey jurisdiction upon the court to accept Garner’s plea of guilt to simple robbery. Nonetheless, as we find that Garner’s guilty plea was involuntary because he was not informed of the true nature and consequences of the charge, we decline to reverse and remand for sentencing on simple robbery.

IV. WHETHER GARNER’S GUILTY PLEA WAS INVOLUNTARY.

¶ 21. “A plea cannot support a judgment of guilt unless it was voluntary in a constitutional sense.” Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). A valid guilty plea must be a voluntary and intelligent choice by the accused among the available alternative courses of action. Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The constitutionality of a guilty plea is threatened by ignorance, incomprehension, coercion, terror or other inducements. Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Therefore, before accepting a guilty plea, the trial court must inquire as to the voluntariness of the plea. URCCC 8.04(A). The accused must be advised concerning the nature of the charge and the consequences of the plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). The trial court may assure itself that the accused understands the elements of the crime charged by explaining the elements to the accused or by counsel’s representation to the court that the elements of the crime have been explained to the accused. Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005). The court must inform the accused of the maximum and minimum sentences that may be imposed for the charged crime. URCCC 8.04(A)(4)(b). The court must also ascertain that the accused is competent to understand the nature of the charge. URCCC 8.04(A)(4)(a). Moreover, the accused must be informed that a guilty plea waives certain constitutional rights such as the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self-incrimination. Alexander, 605 So.2d at 1172.

¶ 22. A defendant may collaterally attack the validity of a guilty plea with a motion for post-conviction relief. Miss. Code Ann. § 99-39-5(l)(f) (Supp.2006). The petitioner has the burden of proof by a preponderance of the evidence that the plea was not knowingly and voluntarily made. Miss.Code Ann. § 99-39-23(7) (Supp.2006). Garner moves to withdraw the guilty plea due to involuntariness. Among other arguments, he asserts that he was not informed of the true nature and consequences of the charge against him. While Garner does not specifically contend that he was not informed about the charge of simple robbery, we take into account that Garner is proceeding pro se. As an exercise of discretion, we will not disregard his otherwise meritorious claim due to inartful drafting. Moore, 556 So.2d at 1061.

¶ 23. In the plea hearing transcript, the court stated that Garner had indicated to the court through his attorney that he desired to enter “two pleas of guilty to two charges of armed robbery,” one in Monroe County and one in Lee County. The court ascertained that Garner’s attorney had discussed the elements of the charge with him, had advised him of his constitutional rights, and had informed him of the consequences of pleading guilty. The State’s plea recommendation was twenty years on each armed robbery charge, to run concurrently, and to pay restitution. Thus, the record reflects that Garner, his attorney, the prosecutor, and the trial court all thought that Garner’s indictment charged him with armed robbery. The record evinces that the explanations given to Garner about the nature of the charge, the possible sentences and other consequences of the plea, and the plea bargaining process all pertained to armed robbery, not to simple robbery. For this reason, Garner’s guilty plea was not voluntary in a constitutional sense. He never received “real notice of the trae nature of the charge against him, the first and most universally recognized requirement of due process.” Henderson, 426 U.S. at 645, 96 S.Ct. 2253. Nor was Garner accurately informed of the consequences of a guilty plea to robbery. The maximum sentence for armed robbery is life if fixed by the jury. Miss.Code Ann. § 97-3-79. The maximum sentence for simple robbery is fifteen years. Miss. Code Ann. § 97-3-75 (Rev.2006). When Garner evaluated the State’s plea recommendation and made his decision to plead guilty, he was under the erroneous belief that he could be sentenced to life imprisonment were he to proceed to trial and be found guilty, when in fact he could have received only fifteen years.

¶ 24. This case is distinguishable from the similar situation in Neal in which, after finding the court lacked jurisdiction to accept Neal’s guilty plea to armed robbery, we remanded for sentencing on simple robbery. Neal, 936 So.2d at 470(¶ 22). In that case, we found that Neal had failed to show his guilty plea to robbery was involuntary because, in the waiver of indictment, Neal agreed that he was charged with robbery. Id. at 470(¶27). Further, Neal’s attorney signed the waiver of indictment, certifying that he had explained the elements of robbery to Neal. Id. at 471(¶ 27). And, the specific elements of robbery appeared on several documents that Neal signed. Id. at 471(¶28). The sole problem in Neal was that Neal’s attorney erroneously had informed the trial court that Neal was pleading guilty to armed robbery, whereupon the court accepted Neal’s guilty plea to armed robbery. Since Neal had been fully informed of the charge of robbery and the elements of robbery, we found that Neal had failed to show that he involuntarily pled guilty to robbery. Id. at 471(¶ 29).

¶ 25. Unlike in Neal, in this case, the record reflects a fundamental misunderstanding below about the identity of the crime charged in the indictment. The record shows that Garner, his appointed counsel, the trial court, and the prosecutor were all under the impression that Garner had been indicted for armed robbery. Therefore, Garner was never informed of the true nature of the charge against him or of the consequences of pleading guilty to robbery. Thus, Garner could not have made a knowing, intelligent, and voluntary decision to plead guilty. We reverse and render Garner’s armed robbery conviction, vacate his guilty plea, and remand for proceedings on the simple robbery charge. This disposition of the case renders Garner’s other issues moot.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

KING, C.J., LEE, P.J., SOUTHWICK, IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. MYERS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.