text:
    John Willard GRAHAM, Appellant v. Katrina Kay (Knight) GRAHAM, Appellee.
    No. 2005-CA-02047-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.

      James A. Williams, attorney for appellant.
    Walter T. Rogers, Meridian, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. John Willard Graham and Katrina Kay Knight Graham agreed to an irreconcilable differences divorce. John and Katrina were able to reach an agreement on some issues; however, others were submitted to the Lauderdale County Chancery Court for decision. After hearing the evidence, the chancellor entered a judgment dividing the marital estate. Aggrieved, John appeals and asserts that the chancellor did not divide the assets equitably.

¶ 2. We find no error in the choices made by the chancellor. Therefore, we affirm.

FACTS

¶ 3. John and Katrina were married on August 11, 1989, in Kemper County, Mississippi. The couple have one child, William Anthony Graham, born April 22,1989. The parties agreed to joint legal custody, with physical custody granted to John. The parties also agreed to give John the exclusive use, possession and ownership of the marital home. The agreement gave Katrina a motor home and a van. Among other issues, John and Katrina could not agree on who should receive Graham’s Curb Store, a convenience store run by the couple, or on an equitable division of other marital assets. Therefore, those issues were submitted to the court for adjudication.

¶4. At trial, Katrina testified that she was working as a convenience store manager for Faye Palmer when she learned that Palmer was planning to sell the store. She stated that after discussing it with John, they decided to purchase the store. However, John testified that purchasing the store was his idea and that Katrina showed no interest in the store. The parties borrowed a total of $65,000 from Citizens National Bank: $55,000 to purchase the store, and $10,000 to use as operating capital. About two months after purchasing the store, John and Katrina separated.

¶ 5. Katrina testified that she and John agreed that she would oversee the operation of the store, taking $400 a week as compensation, and John would continue to work as a diesel mechanic and truck driver until the store turned a profit. However, John quit his job and began working solely at the store. Prior to working at the store, John worked as a diesel mechanic for eight years and as a truck driver for sixteen years. John also has the ability to service air conditioners located in refrigerated trucks. However, at the time of their purchase of the store, he had no experience operating a convenience store.

¶ 6. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Equitable Distribution

¶ 7. Appellate courts have limited review when examining property division and distribution in divorce cases. Owen v. Owen, 928 So.2d 156, 160(¶ 10) (Miss.2006). It is well established that we will uphold the chancellor’s division of marital assets as long as the division “is supported by credible evidence.” Id. (citing Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994)). We will uphold the findings of the chancellor, unless “those findings are clearly erroneous or an erroneous legal standard was applied.” Id. at (¶ 11).

¶ 8. In Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994), the Mississippi Supreme Court enumerated a list of factors for chancellors to consider in reaching decisions on the equitable distribution of marital property: (1) contribution to the accumulation of marital wealth, (2) disposition of marital assets, (3) market and emotional value of the marital assets, (4) value of non-marital assets, (5) tax and other economic consequences of the property division, (6) deceasing future friction between the parties, (7) the needs of the parties for financial security with due regard to the combination of assets, income and earning capacity, and (8) any other factors in equity.

¶ 9. John relies on Ferguson for the proposition that “fairness should be the prevailing guideline in marital division.” Id. at 929. In Ferguson, the court held that “the chancery court has the authority to order an equitable division of property that has accumulated through the joint efforts and contributions of the parties.” Id. at 927. Further, the court held that an equitable division is not the same as equal division, and it is at the court’s discretion to determine exactly how the property will be divided. Id.

¶ 10. John contends that the chancellor’s decision was substantially unfair in awarding the store to Katrina. The store’s profit for the first eight months of 2005 was $29,592.71, and John uses this figure to estimate that the store’s total profit for 2005 would be around $40,000. Therefore, John contends that Katrina will unfairly receive $40,000 a year for owning the store, while he will have to perform “difficult physical work” to support himself.

¶ 11. The chancellor conducted a thorough analysis of the Ferguson factors and concluded that the store should be awarded to Katrina. Katrina has a tenth grade education and has never worked anywhere other than convenience and grocery stores. By contrast, John has experience working in other areas, such as truck driving and certain mechanical work. Therefore, Katrina has much less marketability for her skills than does John.

¶ 12. In determining the equitable distribution of the marital property, the chancellor noted that “[t]he allocation of property, both real and personal gives Mr. Graham far more equity in property than Mrs. Graham. \.. The curb store is a mechanism by which Mrs. Graham can earn a living but there is no actual equity in the curb store as the loan exceeds the value of the business.”

¶ 13. We note that the parties dispute the value of the marital home and the amount of equity in it. Katrina contends that the house is worth $88,430, with an equity of $38,858.25, while John estimates the value of the house to be $71,000, with an equity of $21,256.45. Nevertheless, John argues that the chancellor erred in ordering that he pay Katrina $11,000 to equalize the equitable distribution of real and personal property set. out in the parties’ consent for divorce. We understand John’s argument to be that the value of the store was such that he should not have also been required to pay Katrina $11,000.

¶ 14. The chancellor never explicitly explained how she arrived at the $11,000 figure. John contends that the chancellor reached this amount by taking half of the value of the equity in the marital home that John was awarded. We note' that, even if we were to accept John’s valuation of the store as worth $55,000, the difference between the value of the store and the value of the marital home would be $16,000, as John estimates that the house is worth $71,000. Admittedly, $11,000 is more than half of $16,000. However, a chancellor is tasked with making an equitable, not equal, distribution of the marital estate. Further, in making the equitable distribution, the chancellor must take the entirety of the marital estate into consideration, not just a single item. Based on the reasons stated above, we find that the chancellor’s order is supported by credible evidence and John’s contentions to the contrary are without merit.

2. Periodic Alimony

¶ 15. John contends that he is entitled to periodic alimony because the chancellor awarded the store to Katrina, but failed to characterize the store as an “operating business.” John does not cite any case law to support his argument, nor does he explain how the chancellor’s result would have been different even if she had classified the store as an operating business. ■ We note that the chancellor did in fact take John’s position into consideration as evidenced by her statement that, “Mr. Graham will need support until such time as he can obtain appropriate employment commensurate with his work skills.” To provide this support, the chancellor ordered Katrina to pay John $2,500 a month, for three months. This Court finds that John is not entitled to receive any additional alimony.

¶ 16. THE JUDGMENT OF THE CHANCERY COURT OF LAUDER-DALE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . It is undisputed that there is no equity in the store.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    In the Matter of the LAST WILL AND TESTAMENT OF George W. CARTER, Deceased. Lloyd W. Carter, Appellant, v. Ruth Moody, Executrix, Appellee.
    No. 2005-CA-01326-COA.
    Court of Appeals of Mississippi.
    Jan. 30, 2007.
    Garland D. Upton, Attorney for Appellant.
    William C. Callender, Columbia, Attorney for Appellee.
    Before MYERS, P.J., GRIFFIS, and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Lloyd W. Carter appeals the decision of the Chancery Court of Marion County dismissing his will contest. Lloyd contested the probate of the last will and testament of George W. Carter, Lloyd’s father, contending that Carter lacked testamentary capacity at the time of execution because of “senile dementia and advanced age” and that the execution was a product of undue influence by Ruth Moody, the primary beneficiary under Carter’s will. The chancellor held that there was insufficient proof that Carter lacked the requisite mental capacity to make the will and insufficient proof that the will was the product of undue influence. Accordingly, the chancellor denied and dismissed Lloyd’s will contest. Aggrieved, Lloyd perfected this appeal, asserting that a confidential relationship existed between Ruth and Carter which gave rise to a presumption of undue influence, and that Ruth failed to rebut the presumption. We agree with the chancellor and, therefore, affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 23, 2002, George W. Carter executed his last will and testament. Under the provisions of this will, his wife, Eugenia S. Carter, would take a life estate in all property owned by Carter at the time of his death, with the remainder devised and bequeathed to Ruth Moody. Furthermore, Carter’s will provided that his entire estate would pass to Ruth in the event that Ruth survived both Carter and his wife, Eugenia. Ruth was identified in the 2002 will as Carter’s friend “who has faithfully served my wife and me during extended illnesses for many years.... ” Lloyd W. Carter, Carter’s son, was nowhere mentioned in the will.

¶ 3. Carter’s wife, Eugenia, died on September 11, 2002, less than two months after Carter’s will was executed. Carter died on September 10, 2004, and Ruth, serving as executrix as provided under the will, subsequently petitioned the Marion County Chancery Court for letters testamentary and for probate of Carter’s last will and testament. The chancellor promptly granted Ruth’s petition for letters testamentary and admitted Carter’s will for probate. Shortly thereafter, Lloyd W. Carter filed his “Answer and Contest of the Last Will and Testament of George W. Carter, Deceased,” alleging that Carter “lacked testamentary capacity because of senile dementia and advanced age.” Lloyd further alleged in his contest that Ruth, as sole beneficiary under the terms of the will, “exerted undue influence upon [Carter].”

¶ 4. At trial on the merits of Lloyd’s will contest, Ruth testified that she had been employed by Carter for approximately twenty-two years prior to his death. According to Ruth, her duties included: housekeeping, grocery shopping, driving the aging couple for doctor’s visits, sitting with Eugenia during her confinement in the hospital, sitting with Carter during his confinement in the hospital, and paying bills on Carter’s behalf. Ruth further testified that “[she] was doing everything” for Carter and Eugenia at a point in time after Eugenia became seriously ill but pri- or to her death. In addition to meeting Carter’s physical and health needs, Ruth also attended to Carter’s financial affairs. According to Ruth, Carter granted her power of attorney “so he wouldn’t have to go into the nursing home.” To that end, Ruth was granted authority to draft checks and conduct other business on Carter’s behalf. However, Ruth testified that Carter always remained in control of his finances and strictly scrutinized all transactions conducted on his behalf.

¶ 5. Regarding execution of Carter’s will, Ruth testified that she did not participate in procuring or executing the will. In fact, Ruth testified that she was not even aware that Carter had executed the 2002 will. Delana Broom, an employee of the attorney who drafted and assisted Carter in his execution of the will, also testified that Ruth did not participate in any way with the procurement or execution of the will. Also, according to Broom, the will was executed behind closed doors and Ruth was in a separate room at the time of execution. Furthermore, Broom testified that Carter was fully informed about the provisions of the will prior to his signing it. While Broom’s testimony implicated Ruth as having paid for the preparation of the will as well as for preparation of the power of attorney, Broom further explained that the payment was made at Carter’s direction by check drawn on his account.

¶ 6. There was further testimony at the trial by Beverly Branch, an officer of Citizen’s Bank who was present during execution of a deed of trust by Carter in favor of the bank, and by Vicky Stringer, a legal assistant to an attorney who prepared four promissory notes executed on a different occasion by Carter. Stringer delivered the four instruments to Carter at his home and notarized the documents after witnessing Carter’s signature. Neither Branch’s testimony nor that of Stringer shed any doubt on the mental competency of Carter. In fact, both witnesses testified that they would not have participated in the execution of the respective documents if they had doubted Carter’s competency.

¶ 7. At the conclusion of all testimony, the chancellor issued a bench ruling denying and dismissing Lloyd’s contest to the last will and testament of his father, George W. Carter. Lloyd does not challenge the chancellor’s finding that the evidence did not establish “that George W. Carter lacked the requisite mental capacity” to execute his last will and testament on July 23, 2002. We agree with Lloyd insofar as his lack of argument indicates agreement with the chancellor on this point, as the record is completely devoid of evidence to support Lloyd’s initial claim that Carter “lacked testamentary capacity because of senile dementia and advanced age.” Instead, Lloyd insists on appeal that a presumption of undue influence arose by virtue of the confidential relationship between Ruth and Carter. Lloyd further contends that Ruth failed to rebut this presumption. We disagree with Lloyd in the first instance and therefore find his second contention inapposite.

STANDARD OF REVIEW

¶8. On review, a chancellor’s findings of fact will not be disturbed unless those findings are manifestly wrong, clearly erroneous, or based upon an erroneous legal standard. In re Estate of Grantham, 609 So.2d 1220, 1223 (Miss.1993). Accordingly, we will not reverse if the chancellor’s findings are supported by substantial, credible evidence. In re Estate of Harris, 539 So.2d 1040, 1043 (Miss.1989).

DISCUSSION

¶ 9. Lloyd asserts on appeal that a confidential relationship existed between Ruth Moody and George W. Carter. Further, Lloyd contends that Ruth failed to rebut the presumption of undue influence that arose by virtue of the confidential relationship between Carter, as testator, and Ruth, as beneficiary. Even assuming, without deciding, that a confidential relationship existed between Carter and Ruth, we nevertheless find that the presumption of undue influence did not arise. According to the Mississippi Supreme Court:

[W]here a confidential relation exists between a testator and a beneficiary under his will, and the beneficiary has been actively concerned in some way with the preparation or execution of it, the law raises a presumption that the beneficiary has exercised undue influence over the testator, and casts upon the beneficiary the burden of disproving undue influence by clear and convincing evidence.

Croft v. Alder, 237 Miss. 713, 722-23, 115 So.2d 683, 686 (1959) (emphasis added). The court in Croft discussed at some length the difference between the presumption of undue influence as it may arise in the context of inter vivos gifts, and the presumption as it may arise in the context of a testamentary gift by will.

¶ 10. According to the court in Croft, inter vivos gifts such as deeds may be deemed presumptively void merely by a finding that a confidential relationship existed between the donor and donee. Id. at 726, 115 So.2d at 688. The burden then shifts to the donee to rebut the presumption by clear and convincing evidence. Id. This rule, however, “is not applicable in that limited sense to bequests or devises made by will.” Id. In the context of devises and bequests by will, there is an additional requirement that “the beneficiary in the confidential relation has been actively concerned in some way with the preparation or execution of the will....” Id. Stated differently, “the existence of a confidential or fiduciary relationship, coupled with a showing of ‘suspicious circumstances’ such as the fact that a beneficiary or person who- benefits by the will took part in the execution or preparation of the will, gives rise to a presumption of undue influence.” Estate of Lawler v. Weston, 451 So.2d 739, 741 (Miss.1984) (citing Croft, 237 Miss. at 723, 115 So.2d at 686). We find no such “suspicious circumstances” in the case sub judice.

¶ 11. During trial in the instant case, the only evidence regarding the execution of the will at issue was the testimony of Ruth Moody, executrix and primary beneficiary under the will, and that of Delana Broom, an employee of the attorney who prepared the will and assisted Carter in its execution. Ruth’s testimony was that she was not aware that Carter was executing a will and that she was not present during the execution. Ruth further testified that she did not request the preparation of the will in question nor otherwise aid in its execution. Broom’s testimony fully corroborated the testimony of Ruth. Broom testified that Ruth did not call or make any type of request regarding preparation of. Carter’s will. Furthermore, according to Broom, Ruth was present at Carter’s home during the execution of the will, but Broom testified that the execution took place behind closed doors and that Ruth was in the kitchen during the execution of the will.

¶ 12. The only circumstance surrounding the execution of Carter’s will that even hints of activity on Ruth’s part was the fact that Ruth paid the attorney for his services after the execution. This fact, however, loses any hint of suspicion in light of the fact that Ruth,paid by a check drawn on Carter’s checking account and at the direction of Carter. Ruth routinely made payments on Carter’s behalf — by check and otherwise. There is no indication in the record that Ruth’s payment on this occasion was out of the ordinary or otherwise suspicious. We cannot say that the chancellor was manifestly wrong or committed clear error in his finding that “[tjhere [was] nothing to show that any person other than George W. Carter initiated or directed or procured the preparation of the last will and testament as well as the power of attorney.” Without any evidence of involvement by Ruth Moody or other “suspicious circumstances” surrounding the procurement, preparation, or execution of Carter’s July 2002 will, the chancellor’s finding of no undue influence was clearly supported by substantial evidence. Accordingly, even if we are persuaded that a confidential relationship existed between Ruth and Carter, the presumption of undue influence never arose in this case and Ruth was not obligated to rebut the presumption. Therefore, both of Lloyd’s assignments of error are without merit and the ruling of the chancellor is affirmed.

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

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

      . Lloyd’s appellate brief does not address the chancellor’s holding regarding Carter's alleged lack of mental capacity at the time of execution. Therefore, we will address only the chancellor's holding with respect to whether Carter’s will was a product of undue influence, as this is the only issue for which Lloyd included arguments and authority.

      . According to Ruth's testimony, Carter did not become bedridden until after Eugenia’s death on September 11, 2002. The will at issue was executed on July 23, 2002. Although the testimony reflects that even on this date, Carter was largely dependant on Ruth for his and his wife's care, he did not become completely dependant upon Ruth’s care until after Eugenia’s death, and consequently, after execution of his 2002 will.


author: MYERS, P.J.,

text:
    Charles NANCE, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01086-COA.
    Court of Appeals of Mississippi.
    Jan. 30, 2007.

      Pearson Liddell, Jr., Mississippi State, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Charles Nance was convicted of possession of cocaine in an amount less than one tenth of one gram by a jury in the Circuit Court of Oktibbeha County. Nance was sentenced to serve a mandatory eight years in prison without the possibility of parole as a second or subsequent offense of the Mississippi Uniform Controlled Substances Law and as a habitual offender, pursuant to Mississippi Code Annotated sections 41-29-139 (Rev.2005), 41-29-147 (Rev.2005), and 99-19-81 (Rev. 2000) and fined $20,000. Nance appeals his conviction, arguing that there was insufficient evidence for a jury to find that he knowingly possessed illegal narcotics. Finding no error, we affirm his conviction.

STATEMENT OF THE FACTS

¶ 2. Late in the evening on September 2, 2004, on Oktoc Road in Oktibbeha County, Nance was pulled over while driving, for failure to dim his headlights to an oncoming car driven by Officer Draper Williams of the Oktibbeha County Sheriffs Office. During the course of the traffic stop, Nance was unable to produce his driver’s license or proof of insurance, provided the officer with a false name and driver’s license number, and refused to give the officer his complete date of birth. Eventually, Nance provided Officer Draper with his correct name and the officer discovered that Nance had an outstanding warrant for his arrest. Nance was arrested on the warrant and transported to the Lowndes County Adult Detention Center. As Nance was being booked into jail, Detention Officer William Schaefer discovered in Nance’s clothing a corner of a sandwich bag, which was tied up, and contained a white powdery substance. Upon finding the bag, Officer Schaefer asked Nance what the bag was or what it contained. Nance responded that the bag was a candy wrapper and directed Officer Schaefer to throw it away in the trash. Officer Schae-fer collected the bag as evidence and sent the bag to the Tupelo Crime Lab for testing, where it was determined that the bag contained cocaine.

DISCUSSION

¶ 3. Nance argues that it was error for the trial court to deny his motion for a directed verdict at the close of the prosecution’s case-in-chief, because there was insufficient evidence presented to the jury to prove that he knowingly possessed cocaine. The thrust of Nance’s argument relies on the fact that no direct evidence was presented, and that there was insufficient circumstantial evidence, proving that he knowingly possessed the cocaine found on his person during the booking process at the jail.

¶ 4. Motions for directed verdict challenge the sufficiency of the evidence. This Court follows our supreme court’s standard in reviewing denials of motions for directed verdict and will reverse only when the evidence is such that “reasonable and fair-minded jurors could only find the accused not guilty.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). The Court should weigh the evidence in the light most favorable to the prosecution. Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005).

¶ 5. In order to convict a defendant of the offense of possession of a controlled substance, the State must prove actual or constructive possession of the narcotics by the defendant, coupled with knowledge of the presence of the drug. See Miss.Code Ann. § 41 — 29—139(c) (providing “it is unlawful for any person knowingly or intentionally to possess any controlled substance.... ”); Kerns v. State, 923 So.2d 196, 199-200(¶ 11) (Miss.2005) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)). This court must weigh the facts and circumstances of this individual case to determine whether the State has met their burden. Kerns, 923 So.2d at (¶ 11) (quoting Curry, 249 So.2d at 416). What the State was required to show was “that [the] defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Id. “[The possession] need not be actual - physical possession.” Id. “Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.” Id.

¶ 6. In this case, the facts deduced at trial showed that Nance was in actual physical possession of the cocaine. The substance was found on his person during a routine booking at the jail house. While there is no requirement that the defendant be in actual physical possession to be found guilty, in this case, the proof clearly established that Nance physically possessed the bag containing cocaine. When Nance was questioned about the bag, he told the officer that the bag was a candy wrapper and asked the officer to dispose of the bag in the garbage. At no time did Nance disclaim the bag, as to suggest that it did not belong to him. In fact, he identified the bag, falsely, as a candy wrapper. Nance’s statements to the officer establish by deduction that he was the owner and in possession of the bag. He claimed ownership over the bag by giving permission to the officer to dispose of the bag containing cocaine. These acts and statements made by Nance, taken together, have sufficient weight so that a reasonable jury could find that Nance was in knowing possession of the cocaine.

¶ 7. We find that the trial court did not err in denying Nance’s motion for a directed verdict. The trial judge denied Nance’s motion for directed verdict ruling that the State had offered sufficient proof that Nance was in the knowing possession of cocaine. The jury considered the evidence and returned a verdict against Nance. We find that there was sufficient evidence to find Nance guilty, and thus the trial court did not err.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF EIGHT YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $20,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

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


author: LEE, P.J.,

text:
    Antonio CONLEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01805-COA.
    Court of Appeals of Mississippi.
    Jan. 30, 2007.
    • James P. Vance, Grenada, Attorney for Appellant.

      Office of the Attorney General by Scott Stuart, Attorney for Appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On March 20, 2005, in the Grenada County Jail, Kenneth • Kendall and Sajid Tyler were in the same cell. Prior to lockdown, fellow inmates Antonio Conley, Eric Bullin and James Kinsey entered Kendall’s cell. An altercation ensued over cigarettes stolen by Kendall. Conley and Bullin began hitting and kicking Kendall on various parts of Kendall’s body, including his head. There was testimony that this assault lasted between fifteen and thirty minutes.

¶ 2. Approximately fifteen minutes after the assault, a guard noticed Kendall’s injuries. Kendall told the guard that four men had assaulted him. Around the same time, Kendall fell to the ground and, after attempts at resuscitation by medical staff, died. Kendall died from swelling of the brain and brain stem herniation, caused by blunt force trauma to his head.

¶ 3. On June 28, 2005, Conley and Bullin were indicted for the murder of Kendall. Bullin ultimately pled guilty to manslaughter. On August 11, 2005, a jury in the Grenada County Circuit Court found Conley guilty of murder. Conley was sentenced to serve a term of life in prison in the custody of the Mississippi Department of Corrections. Conley now appeals to this Court asserting that the trial court erred in refusing to appoint an independent medical examiner and that the jury verdict was contrary to the overwhelming weight of the evidence.

DISCUSSION

I. DID THE TRIAL COURT ERR IN FAILING TO APPOINT AN INDEPENDENT MEDICAL EXAMINER?

¶ 4. In his first issue on appeal, Conley argues that the trial court erred in not appointing an independent medical examiner to review the cause of Kendall’s death. Two days prior to trial Conley had filed a motion asking the trial court to appoint a medical professional to ascertain whether Conley was responsible for Kendall’s death. Conley states that this was crucial in preparing his defense that, although he admitted beating Kendall, he never intended to kill Kendall. In reviewing the trial court’s denial of medical expert assistance, this Court must find an abuse of discretion such that Conley was denied due process resulting in a fundamentally unfair trial. Brink v. State, 888 So.2d 437, 448(¶ 32) (Miss.Ct.App.2004).

1Í 5. During the hearing on Conley’s motion, the trial court asked Conley’s attorney, James Vanfce, certain questions in regards to whether an independent medical examiner was necessary. In response to Vance’s statement that there could be an intervening cause of death since Kendall did not die immediately after the assault, the following occurred:

BY THE COURT: Did you find anything in the autopsy report that would indicate there was anything other than this?
BY MR. VANCE: No, sir. I didn’t.
BY THE COURT: Did it indicate any presence of any drugs?
BY MR. VANCE: No, sir.
BY THE COURT: Did it indicate anything such as a heart attack or something like that?
BY MR. VANCE: No, sir. I don’t recall in looking through the autopsy that it was anything like that.
BY THE COURT: Without some, without some basis for it — I mean if you got the independent expert, all they would be able to do would be to look at the autopsy report at this particular time. Other than that, somebody would have to exhume the body, and I’m not going to exhume a body until there is some basis for doing that. Therefore one, I find it is not timely filed, and two, I don’t think there has been any basis for me to order this as I see no need for it based on the information that I have. So that is overruled.

¶ 6. We cannot find that there was an abuse of discretion by the trial court since Conley appears to base his argument on a hope that another medical expert would find another cause of death rather than having any specific evidence to support his defense. Kendall was severely beaten, with significant bruising on his head, neck and back as well as between thirty and forty blunt force trauma injuries on his body. Furthermore, Dr. Steven Hayne, a forensic pathologist, testified that “[i]nca-pacitation in some cases could occur immediately, or ... could be delayed for a period of time. Certainly an hour could occur before the swelling developed at a point where unconsciousness would develop.” This issue is without merit.

II. WAS THE VERDICT CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 7. In his other issue on appeal, Conley states that the jury verdict was contrary to the overwhelming weight of the evidence. However, Conley’s sole assertion is that he should have been charged with manslaughter as he never meant to kill Kendall. Conley asks this Court to reverse his murder conviction and to remand for resentencing for the crime of manslaughter. Our standard of review concerning the overwhelming weight of the evidence is well settled: “[W]e 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.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). The appellate court sits as a hypothetical “thirteenth juror.” Id. As such, the Court weighs the evidence “in the light most favorable to the verdict.” Id. If, in this position, the Court disagrees with the verdict. of the jury, “the proper remedy is to grant a new trial.” Id.

¶ 8. Mississippi Code Annotated section 97-3~19(l)(b) (Rev.2006) states that a person is guilty of murder “[w]hen done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.” Manslaughter is defined as all other killings of a human being “by the act, procurement, or culpable negligence of another, and without authority of law....” Miss.Code Ann. § 97-3-47 (Rev.2006). We note that the jury in the case sub judice was given a manslaughter instruction.

¶ 9. Conley’ cites to Tait v. State, 669 So.2d 85 (Miss.1996), where our supreme court reversed a murder conviction and remanded for sentencing for the crime of manslaughter. The supreme court found the accidental shooting by Tait only amounted to culpable negligence. Id. at 87-88. We fail to see how the accidental discharge of a gun equates to an intentional and violent assault.

¶ 10. Depraved heart murder evidences a greater degree of recklessness than manslaughter. Steele v. State, 852 So.2d 78, 80(¶ 10) (Miss.Ct.App.2003). From the facts, we cannot find that allowing the guilty verdict to stand would sanction an unconscionable injustice. In fact, the evidence shows the reckless and brutal nature of the crime. Conley admitted to beating and stomping Kendall. A forensic scientist with the Mississippi Crime Laboratory matched numerous bruise patterns on Kendall’s back with a pattern on the bottom of one of Conley’s shoes. There was testimony that Kendall was struck so hard his head hit the wall of the cell. There was also testimony that Kendall did not fight back. At one point Kendall attempted to get help from the guards but was pulled back into the cell whereupon Conley and others continued beating him. This blunt force trauma caused Kendall’s brain to swell and led to his death a short time later. All of this occurred over a pack of cigarettes.

¶ 11. We affirm the guilty verdict.

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

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


author: ROBERTS, J.,

text:
    Glen SINGLETON, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02013-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.

      Barney Glenn Folse, attorney for appellant.

      Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Glen Singleton, Jr. was tried in the Circuit Court of Madison County for the sale of cocaine. Following testimony from a number of witnesses he was found guilty by a jury of selling a schedule II controlled substance within 1,500 feet of a church, and subsequently sentenced by the lower court. Aggrieved by this, Singleton now appeals and raises the following issues, which we quote verbatim:

I. THE TRIAL COURT ABUSED HIS DISCRETION BY DENYING SINGLETON’S MOTIONS' FOR DIRECTED VERDICT OR MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, FAILING TO GRANT A NEW TRIAL.
II. THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
III. THE COURT ERRED IN OVERRULING THE DEFENDANT’S HEARSAY OBJECTIONS.
IV. THE COURT ERRED IN SUSTAINING THE PLAINTIFF’S OBJECTION TO DEFENDANT’S QUESTIONS OF JAMES JACKSON REGARDING HIS GRAND LARCENY CHARGE.

Finding no error, we affirm.

FACTS

¶ 2. Needing a source of additional income, James Jackson contacted the narcotics division of the Madison County Sheriffs Department (Department) to provide information on the sale of drugs within the city of Flora. Jackson had information on one such salesman, Singleton, or, as he was more affectionately known, Poo-Poo. The Department and Jackson struck a deal in which Jackson agreed to wear a wire while purchasing crack cocaine from Singleton in exchange for one hundred dollars.

¶ 3. On December 10, 2003, Agent Jay Houston and other deputies of the Department began by thoroughly searching Jackson and the Department-owned vehicle he would use for the presence of any drugs. Finding none, they placed the wire and sent Jackson on his way. Jackson then proceeded to what would turn out to be Doris Singleton’s house, entered the home, purchased five rocks of crack cocaine, left the house,, and drove away from the scene before meeting with Houston. Doris Singleton was Singleton’s mother. Houston then immediately obtained the narcotics and sealed them in an evidence bag. Some time later Houston and other deputies attempted to execute an arrest warrant for Singleton at Doris’s house in Flora, but Singleton was not present. In January, when Singleton learned the authorities were looking for him, he immediately turned himself in.

PROCEDURAL HISTORY

¶ 4. Singleton was indicted April 28, 2004, on the offense of sale of a schedule II controlled substance in violation of Mississippi Code Annotated Section 41-29-139(b)(1) (Rev.2005), subject to enhancement by Section 41-29-142 as the sale was within 1,500 feet of a church. Singleton’s trial on the above offense was held on September 13, 2005. During his trial, Singleton testified that he was not at his mother’s house on or around December 10 and had not lived in Flora for four and a half years. However, Singleton was questioned regarding a recent Flora address he listed as his own. Singleton explained that he gave that address only for correspondence with the Circuit Court of Madison County concerning the drug charges against him. In response to this testimony, Houston testified that on a September 20, 2003 traffic ticket Singleton had listed his address as Post Office Box 690, Flora, Mississippi. Additionally, the State introduced a copy of an NCIC report detailing Singleton’s driver’s license information from the time of the September 2003 traffic incident which listed his address as 108 Pugh Road in Flora, Mississippi. Singleton objected to the admittance of both documents on the basis of hearsay and the trial court overruled both objections. At the close of the State’s case and at the close of the defense’s case, Singleton made motions for a directed verdict, which were both denied. Following deliberations, the jury returned a verdict of guilty and Singleton was subsequently sentenced on September 15, 2005. Singleton then filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial on September 23, 2003. This was also denied. This appeal followed.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S OBJECTION TO QUESTIONING JACKSON ABOUT HIS GRAND LARCENY CHARGE.

¶ 5. The standard of review we must employ concerning the admission or exclusion of evidence is well settled. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, [this] Court will not reverse [the] ruling.” Shaw v. State, 915 So.2d 442, 445(¶ 8) (Miss.2005).

¶ 6. During cross-examination, the defense attempted to impeach Jackson by showing that he had recently been convicted of grand larceny. The State objected to such questioning and the lower court sustained the objection. The pertinent line of questioning was as follows,

Q [Defense] Mr. Jackson, when they picked you up for this charge of grand larceny, the fact is you lied about your involvement in this grand larceny, did you not, in the beginning?
A. The grand larceny?
Q. Yeah, the grand larceny that you’re being held on?
A. No.
Q. You admitted to everything?
A. Yeah.
Q. Okay, you admitted that you were a dishonest person and that you took something that did not belong to you, correct?
A. No, that I ain’t what I said.
State: Your Honor, I’m going to object.
Court: Sustained.
Q. With regard to the grand larceny, you know that’s a crime of dishonesty, do you not?
State: Your Honor, we’re going to object.
Court: Sustained.

¶ 7. Singleton cites to M.R.E. 608(b) for support of his argument. M.R.E. 608(b) states in pertinent part, specific instances of conduct “may ... in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness .... ” The supreme court has held that grand larceny is not a crime of dishonesty. Adams v. State, 772 So.2d 1010(¶ 57) (Miss.2000). The supreme court went on to agree with this Court that grand larceny is not a crime generally considered to show an individuals tendency for truth and veracity. Id. (citing Bennett v. State, 738 So.2d 300(¶ 9) (Miss.Ct.App.1999)). Therefore, Jackson’s pending charge for grand larceny alone was not probative of his general truthfulness or untruthfulness, and we find the trial court did not abuse its discretion in sustaining the State’s objection.

II. WHETHER THE COURT ERRED IN OVERRULING THE DEFENDANT’S HEARSAY OBJECTIONS.

¶ 8. Mississippi Rule of Evidence 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). “Hearsay is not admissible except as provided by law.” M.R.E. 802.

¶ 9. Singleton’s first claim of error concerning possible hearsay focuses on Houston’s testimony. Specifically, during Houston’s direct examination by the State he was asked:

Q. [Assistant District Attorney]. I turn your attention to December 10th of 2003. What were your activities including on that date?
A. [Agent Houston], My supervisor contacted me, told me that he had a cooperating source that stated that they could purchase narcotics from a subject known only—
[Defense Attorney]: Objection to hearsay, your Honor.
The Court: Overruled.
Q. Who was your supervising officer?
A. Lieutenant Tucker.

Singleton proposes that Houston’s remarks were inadmissible hearsay as there was no proof presented as to the unavailability of Lieutenant Tucker. First of all, the statement in question was not offered to prove the matter asserted. Therefore, it is not hearsay. Houston did not offer his statement to prove that Lieutenant Tucker called him or even that a cooperating source called Lieutenant Tucker. It was offered to show how he came in contact with Jackson. Furthermore, if Houston’s statement did qualify as hearsay it would still be “admissible to the extent required to show why [he] acted as he did and where he was at a particular place at a particular time.” Jackson v. State, 935 So.2d 1108(¶ 9) (Miss.Ct.App.2006) (quoting Tate v. State, 819 So.2d 555, 558(¶ 14) (Miss.Ct.App.2002)). Therefore, we cannot say that the trial court abused its discretion in overruling Singleton’s objection.

¶ 10. Singleton next argues that the trial court erred in overruling his hearsay objection to the introduction of a photocopy of his driver’s license. While the record shows that no photocopy of Singleton’s driver’s license was ever introduced, but only copies of a NCIC report and justice court record of a traffic citation containing Flora addresses for Singleton, the State nevertheless counters that the driver’s license photocopy was admissible pursuant to Mississippi Rules of Evidence 803(8) or 613(b). As to both of the State’s arguments, applied to those documents admitted into evidence, we cannot agree.

¶ 11. Mississippi Rule of Evidence 803(8) states, in pertinent part, that the following is not excluded by the hearsay rule:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel ...

M.R.E. 803(8).

¶ 12. Beginning with the NCIC report, the report neither satisfies M.R.E. 803(8)(A) nor M.R.E. 803(8)(B). M.R.E. 803(8)(A) pertains to the activities of a public office or agency. An example of the type of report included under this exception is, at least in the federal setting, a “record of receipts and disbursements of the Treasury Department.” John W. Strong, McCormick on Evidence § 296 (5th ed.1999). In the case of a NCIC report, this would be akin to a listing of those jurisdictions and agencies from which the NCIC obtained information, not specific information pertaining to one individual. This Court has said that an NCIC report “purport[s] to be a compilation of information gathered from various jurisdictions throughout the country, the accuracy of which cannot necessarily be certified by the NCIC compiler ... [and the] custodian is not in a position to assess the accuracy of the underlying information provided by the records custodian.” Frazier v. State, 907 So.2d 985(¶ 22) (Miss.Ct.App.2005). While the compilation of information is an activity conducted by the NCIC, obtaining the original information is not. It is equally clear, possibly more so, that the NCIC report would not fall under M.R.E. 803(8)(B). Again, the NCIC is a database of information provided by other law enforcement agencies. As such, those working for the NCIC, and the NCIC itself, do hot observe those matters reported upon within their reports. Furthermore, we have identified that “an issue of trustworthiness arises when one organization seeks to introduce records in its possession that were actually prepared by another.” Armstrong v. State, 828 So.2d 239(¶ 26) (Miss.Ct.App.2002) (citing Harveston v. State, 798 So.2d 638(¶ 7) (Miss.Ct.App.2001)). Therefore, the NCIC report in the case sub judice, as submitted by a member of the Madison County Sheriffs Department, cannot fall under the public records and reports exception.

¶ 13. The next item admitted over objection was the justice court record. This Court was not shown, nor able to find, any statutory provision mandating this State’s justice courts obtain and record individuals’ address information as either an activity of the justice court or as to “matters observed pursuant to duty imposed by law as to which matters there was a duty to report.” Therefore, as was the case with the NCIC report, the computer printout of a justice court record containing Singleton’s address would not fall under M.R.E. 803(8), and, under the facts of this case, would be inadmissible hearsay.

¶ 14. The State next argues that the documents were properly allowed into evidence as impeachment evidence and cites to Al-Fatah v. State, 916 So.2d 584(¶ 21) (Miss.Ct.App.2005) in support of its argument. The record shows that during cross examination, Singleton claimed that he had not had a Flora address during the four and a half years proceeding the trial, save for a post office box he used for correspondence with the trial court concerning his trial. Specifically, he stated, “I don’t have no mailing address for Pugh Road.” Following Singleton’s examination, the State called Houston as a rebuttal witness and introduced the two documents. Based on these facts, this argument fails. Al-Fatah cites M.R.E. 613(b) for the proposition that while hearsay evidence may not be admitted as substantive evidence, it may be allowed to impeach. Al-Fatah, 916 So.2d at (¶ 21). While this is an accurate statement of the law, M.R.E. 613(b) does not apply to the documents at issue. Quite simply, the information contained in the documents was not a statement by Singleton, and, thus, would not qualify as a prior inconsistent statement. Therefore, as the two documents in question did not fall under either M.R.E. 803(8) or 613(b), we find that the trial court erred in admitting them over Singleton’s objections. Having determined that the lower court erred, we must decide whether the prejudicial effect, if any, of such errors warrants reversal. Parker v. State, 606 So.2d 1132, 1137-38 (Miss.1992). Only an erroneous admission of evidence that results in prejudice and harm to the opposing party, or adversely affects a substantial right of the party, warrants reversal. Brown v. State, 890 So.2d 901(¶ 39) (Miss.2004).

¶ 15. During Houston’s rebuttal testimony, not only were the documents in question admitted into evidence, but Houston testified to their contents, to include Singleton’s Flora addresses and the reason he was ticketed. This testimony was introduced without objection and was properly before the jury. We cannot say that actual introduction of the documents Houston referred to during his testimony prejudiced Singleton or adversely affected any substantial right. Therefore, while the NCIC report and justice court printout were erroneously admitted into evidence, they did not prejudice Singleton and, as such, this issue is without merit.

III. THE TRIAL COURT ABUSED HIS DISCRETION BY DENYING SINGLETON’S MOTIONS FOR DIRECTED VERDICT OR MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, FAILING TO GRANT A NEW TRIAL.

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

A. Motions for Directed Verdict and Motion for Judgment Notwithstanding the Verdict.

¶ 16. The standard of review for denials of a motion for a judgment notwithstanding the verdict and a motion for a directed verdict is the same. Jefferson v. State, 818 So.2d 1099(¶ 30) (Miss.2002). A motion for directed verdict and judgment notwithstanding the verdict both “challenge the legal sufficiency of the evidence presented at trial.” Id. When reviewing the denial of a motion for directed verdict, this Court shall “accept as true all the evidence favorable to the state, together with reasonable inferences arising therefrom, to disregard the evidence favorable to the defendant, and if such evidence would support a verdict of guilty beyond a reasonable doubt, the trial court’s denial of the motion must be affirmed.” Hayes v. State, 803 So.2d 473(¶ 5) (Miss.Ct.App.2001). This Court may only discharge the defendant when we conclude, based on the evidence viewed in a light most favorable to the verdict, that “no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty.” Ashford v. State, 583 So.2d 1279, 1281 (Miss.1991). Under this review, the central issue is “whether the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Flora v. State, 925 So.2d 797(¶ 82) (Miss.2006) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). However, this Court is not required to inquire whether it is satisfied that the evidence presented at trial established that the defendant was guilty beyond a reasonable doubt. Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005). Mississippi Code Annotated Section 41-29-139(a) states, “[I]t is unlawful for any person knowingly or intentionally: (1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance.” Miss. Code. Ann. § 41-29-139(a)(l) (Rev.2005).

¶ 17. It is clear from the record that Jackson did not have drugs on his person when he entered Doris’s house. It is also clear that he did have drugs when he left her house. The tape indicated that he purchased the drugs from a male individual in Doris’s home and Jackson specifically identified Singleton in court as the dealer. However, no one else saw Singleton and he was not at the home when Houston and other law enforcement personnel returned to arrest him.

¶ 18. There was testimony from Wilbert Malone, Doris’s live-in boyfriend, that Jackson came to the Pugh Road house when Singleton was not there, but the conversation that took place between Malone and Jackson does not match, in any way, what was captured upon the audiotape on December 10. Also, Malone testified that he could not remember the actual day that Jackson came to the house but did remember that Jackson’s visit was at night. Jackson testified that he had visited Doris’s home once before the December 10 drug sale to make a purchase of his own, but was sime that the December 10 buy was made during the day.

¶ 19. Singleton testified that he was not at his mother’s house that day, did not sell Jackson any drugs, and had never sold drugs. The jury was left with the facts that a drug deal took place in Doris’s home and involved Jackson and another individual. They were told by Jackson that Singleton was the dealer, and told by Singleton that he was not there. They heard the tape containing the voices of Jackson and the dealer, and heard the voice of Singleton when he testified. Accepting as true all evidence favorable to the State and disregarding any evidence favorable to Singleton, we cannot say that the trial court erred in denying Singleton’s motions for directed verdict or JNOV.

B. Motion for New Trial and whether the verdict was against the overwhelming weight of the evidence.

¶ 20. “As distinguished from a JNOV, a motion for a new trial asks to vacate the judgment on grounds related to the weight, not sufficiency, of the evidence.” Smith v. State, 802 So.2d 82(¶ 11) (Miss.2001). The appropriate standard of review of a denial of a new trial or a claim that a conviction was against the overwhelming weight of the evidence has been stated as follows:

[A reviewing court] must “accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an “unconscionable injustice.”

Id. (quoting Crawford v. State, 754 So.2d 1211(¶ 30) (Miss.2000)).

¶ 21. After a careful review of the record we cannot say that the trial court abused its discretion in denying Singleton’s request for a new trial as the overwhelming weight of the evidence is not so contrary to the verdict as to constitute an “unconscionable injustice.”

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF SALE OF COCAINE, A SCHEDULE II CONTROLLED SUBSTANCE WITHIN 1,500 FEET OF A CHURCH AND SENTENCE OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THIRTY-FIVE YEARS SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Wendy Michelle SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01465-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. On July 11, 2005, a jury sitting before the Neshoba County Circuit Court found Wendy Michelle Smith guilty of the sale of dextropropoxyphene, a schedule IV controlled substance. On July 14, 2005, the circuit court sentenced Smith to fifteen years in the custody of the Mississippi Department of Corrections. Post-trial, Smith filed an unsuccessful motion for a new trial. Aggrieved, Smith appeals and raises three issues, listed verbatim:

I. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE , EVIDENCE. THE COURT ERRED IN REFUSING A PEREMPTORY INSTRUCTION AND IN DENYING THE MOTION FOR A NEW TRIAL.
II. THE COURT ERRED IN OVERRULING APPELLANT’S HEARSAY OBJECTION.
III. THE COURT ERRED IN FAILING TO GRANT APPELLANT’S MOTION FOR A DIRECTED VERDICT BECAUSE THE PROSECUTION FAILED TO PROVE THE IDENTITY OF THE PURCHASER OF THE CONTROLLED SUBSTANCE LAID IN THE INDICTMENT, AND THE INDICTMENT WAS INSUFFICIENT BECAUSE IT FAILED TO IDENTIFY THE PURCHASER OF THE CONTROLLED SUBSTANCE APPELLANT WAS CHARGED WITH SELLING.

Finding no error, we affirm.

FACTS

¶ 2. This case centers on a confidential informant’s illegal purchase of a schedule IV controlled substance. That confidential informant was Chris Nolan. Nolan acted under the direction of Deputy Richard Sis-trunk, drug officer with the Neshoba County Sheriffs Department and an another agent with the Mississippi Bureau of Narcotics.

¶ 3. On Tuesday, December 21, 2004, Nolan called Deputy Sistrunk and informed him that he knew of an opportunity to purchase prescription medication. As a result of that call, Nolan, Deputy Sistrunk, Deputy Grant Myers, and Nolan’s wife conducted a “pre-buy meeting.” During that meeting, Deputy Sistrunk and Deputy Myers searched Nolan, Nolan’s wife, and their car. Deputy Sistrunk gave Nolan money to purchase the prescription medication, placed audio and video recording equipment in Nolan’s vehicle, and placed wireless audio and video recording devices on Nolan.

¶ 4. After the pre-buy meeting, Nolan went to the target location' — a home occupied by Terry Morales Lewis, Jr., Lewis’s mother, and Wendy Michelle Smith, Lewis’s girlfriend. Smith had lived with Lewis for approximately four months at that time. The audio and video recording equipment captured the entire exchange that followed. Deputy Sistrunk and Deputy Myers waited within a quarter-mile of the purchase location and monitored the events to ensure Nolan’s safety.

¶ 5. Lewis and Nolan negotiated an exchange of forty dollars for thirteen Darvo-cet tablets. When Nolan began to give Lewis forty dollars, Smith corrected Nolan. To paraphrase Smith, Smith told Nolan that the Darvoeet prescription belonged to her, so he should pay her the forty dollars rather than Lewis. Nolan complied, gave Smith forty dollars, and left.

¶ 6. Nolan and Deputy Sistrunk immediately conducted a “post-buy meeting.” Deputy Sistrunk collected the audio and video equipment from Nolan. Deputy Sis-trunk also collected the Darvoeet from Nolan, sealed the Darvocet in an evidence bag, and later gave that sealed evidence bag to Agent Shelly Boone of the Mississippi Bureau of Narcotics for transportation to the Mississippi Crime Lab for analysis. That analysis confirmed that the Darvocet tablets were, in fact, Darvocet, otherwise known as dextropropoxyphene, a schedule TV controlled substance.

PROCEDURAL HISTORY

¶ 7. On May 2, 2005, the Neshoba County grand jury returned an indictment against Smith. According to that indictment, Smith sold, “to Mississippi Bureau of Narcotics Confidential informant # 224-2004 for the sum of $40.00, a Schedule -IV controlled substance, namely Dextropro-poxyphene, in Neshoba County, Mississippi, contrary to and in violation of Section 41 — 29—139(a)(1), Miss.Code Ann. (1972)[J” On May 4, 2005, Smith executed a waiver of arraignment and pled “not guilty.” On July 11, 2005, Smith went before the circuit court for trial.

¶ 8. The State called six witnesses during its case-in-chief: (1) Deputy Sistrunk, (2) Nolan, (3) Deputy Myers, (4) Agent Boone, (5) Rachel Nolan, and (6) Jamie Johnson, the forensic scientist who performed the chemical analysis on the Dar-vocet tablets. During Nolan’s testimony, the State introduced the videotaped footage of the sale. After the State ceased its case-in-chief, Smith made an unsuccessful motion for a directed verdict.

¶ 9. Smith took the stand in her own defense and presented a defense based on abuse and coercion. That is, Smith testified that Lewis was verbally and physically abusive with her and that Lewis coerced her to sell Darvocet to Nolan. When confronted with the question as to why she did not appear scared on the videotape, Smith explained that Lewis would have physically abused her if she had appeared scared. On cross-examination, Smith testified that she broke up with Lewis approximately one month after she sold Nolan Darvocet. Smith also testified that she could have “probably” left at any time but she was scared to leave.

¶ 10. Smith rested after she testified. The State did not call any rebuttal witnesses. The jury deliberated for fifteen minutes and found Smith guilty. Following her unsuccessful motion for a new trial, Smith appeals.

ANALYSIS

I. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE. THE COURT ERRED IN REFUSING A PEREMPTORY INSTRUCTION AND IN DENYING THE MOTION FOR A NEW TRIAL.

¶ 11. In this issue, Smith attacks both the sufficiency and weight of the evidence that led to her conviction. Smith claims that the verdict was inappropriate because she sold Darvocet to Nolan at Lewis’s direction. Smith also claims that Lewis would have physically harmed her had she refused to do so. Smith reasons that, as such, the verdict was against the weight and sufficiency of the evidence.

¶ 12. A request for a peremptory instruction challenges the legal sufficiency of the evidence. Jerninghan v. State, 910 So.2d 748(¶ 6) (Miss.Ct.App.2005). When reviewing a circuit court’s decision to deny a request for a peremptory instruction, we accept all evidence favorable to the State as true. Id. That is, we give the State the benefit of all reasonable inferences that can be reasonably drawn from the evidence. Id.

¶ 13. Unlike a request for a peremptory instruction, a motion for a new trial challenges the weight of the evidence. Verner v. State, 812 So.2d 1147(¶ 6) (Miss.Ct.App.2002). We may only reverse the circuit court’s decision if the circuit court abused its discretion when it overruled Larson’s motion for a new trial. Smith v. State, 868 So.2d 1048(¶ 11) (Miss.Ct.App.2004).

¶ 14. Smith claims the circuit court should have granted either her request for a peremptory instruction or her motion for new trial because she presented uncontra-dicted testimony that she was in fear of her personal safety when she sold Nolan Darvoeet. True enough, Smith testified that she sold Darvoeet to Nolan and that she did so under Lewis’s direction. Smith also testified that, at times, Lewis had been verbally and physically abusive towards her. In particular, Smith testified that Lewis “beat [her] up” on four occasions. Though Smith could not remember the exact dates, she testified that, if she did not do as she was told, Lewis would hit her. Smith testified that Lewis choked her, hit her with “drum sticks.” Further, Smith testified that on one occasion, Lewis wanted her to sell drugs and, because she did not want to, Lewis “busted the back of [her] head open.” According to Smith, because no testimony contradicted her “coercion” testimony, she was entitled to a peremptory instruction or, failing that, a new trial.

¶ 15. The State presents a curious and disjointed argument. First, the State claims that Smith “failed to make a proper argument of this issue, weight of the evidence, by specifically raising it in her brief, and that it should be rejected for that reason alone.” We are unable to determine the State’s meaning. In any event, the State also argues that “the. lower court cannot be held in error when Hall has failed to present a sufficient record to support his argument.” Obviously, Hall is not the appellant in this case and Smith is a female, so it appears that this argument does not apply to Smith at all. Adding to the confusion, the State suggests that Smith provided neither the necessary transcripts nor an adequate record. There is nothing inadequate about the record and the transcript appears in its entirety. Finally, according to the State’s clearest argument, the State suggests that there existed a jury question on the issue of whether Smith was in duress at the time she sold Darvoeet to Nolan. We agree.

¶ 16. What Smith terms as the defense of “coercion” is more commonly used synonymously with the defenses of “necessity” and “duress.” This particular line of “justification” defenses first entered the vocabulary of Mississippi jurisprudence in 1890, when the Mississippi Supreme Court held that, “an act, criminal in its nature, may be committed by one under such circumstances of coercion as to free him from criminality.” Bain v. State, 67 Miss. 557, 560, 7 So. 408, 409 (1890). The Bain court went on to hold that “[t]he impelling danger, however, should be present, imminent and impending, and not to be avoided.” Id. The Mississippi Supreme Court later recognized that, in a criminal setting, “duress” is an affirmative defense. Powe v. State, 176 Miss. 455, 461, 169 So. 763, 765 (1936).

¶ 17. Since that time, justification defenses under the name “duress” or “necessity” have arisen infrequently. The Mississippi Supreme Court elaborated on the defense of duress in Brown v. State, 252 So.2d 885 (Miss.1971). In Brown, the supreme court repeated the holding in Powe that an accused advancing duress as an affirmative defense must prove that impelling danger was present, imminent, impending, and not to be avoided at the time the crime was committed. Notwithstanding the language from Powe, the supreme court went on to hold, “[i]n the final analysis the most that can be said relative to the appellant’s testimony as to duress is that it presented a question for the jury to determine.” Id. That is, the supreme court found that circumstantial evidence in the form of the appellant’s behavior contradicted the appellant’s claim of duress. Accordingly, the supreme court held that, under such circumstances, a jury question existed as to whether the accused affirmatively demonstrated duress. Id. What is more, the supreme court held that, when such a jury question exists, a guilty verdict is not against the overwhelming weight of the evidence. Id.

¶ 18. In two cases, the Mississippi Supreme Court has recognized the inexact nature of the defenses of “duress” and “necessity.” In Knight v. State, 601 So.2d 403 (Miss.1992), the Mississippi Supreme Court examined the defense of “necessity” and stated that it had not yet “addressed the question [of] whether, or what, circumstances inducing reasonable fear for one’s safety create a viable defense to a crime.” Id. at 405. However, the supreme court did state that, “where a person reasonably believes that he is in danger of physical harm he may be excused for some conduct which ordinarily would be criminal.” Id. In West v. State, 725 So.2d 872, 891(¶ 79) (Miss.1998), the supreme court stated that it:

has not precisely enunciated the elements of a duress defense in this State, although it has expressly adopted the general rule of other states that where a person reasonably believes that he is in danger of physical harm he may be excused for some conduct which ordinarily would be criminal.

¶ 19. The United States Supreme Court recognized the blurred lines between duress and necessity in United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). Blurred lines notwithstanding, the Supreme Court held that, “[u]nder any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, “a chance both to refuse to do the criminal act-and also to avoid the threatened harm, the defenses will fail.” Id. at 410, 100 S.Ct. 624 (internal quotes and citations omitted).

¶ 20. Applying the precedent set in Brown, it is clear that where circumstantial evidence contradicts otherwise uncon-tradicted testimony, that contradiction creates a question for jury resolution. During Smith’s direct examination, her own attorney pointed out that, according to the videotaped footage of Nolan’s purchase, Smith did not appear to be frightened or afraid. Smith explained that she did not appear afraid because that very appearance would have earned Lewis’s retribution later. Smith’s explanation notwithstanding, at the very least, the videotaped surveillance footage creates a jury question as to whether Smith reasonably believed she was under imminent threat of physical harm at the moment Smith sold Nolan prescription medication.

¶ 21. Other circumstantial evidence contradicted Smith’s duress claim. When Nolan went to hand his money to Lewis, Smith corrected Nolan and informed Nolan that the Darvocet belonged to her. Smith reasoned that, because the prescription was in her name, she was entitled to the money. Where Nolan had previously intended to pay Lewis, Nolan instead gave his money to Smith. As such, the jury heard evidence that Smith did not appear frightened and that she did not hesitate to state her claim on money that was otherwise going to Lewis. A reasonable juror could conclude that Smith, in effect having taken money otherwise going to Lewis, did not fear retribution for doing so. It is noteworthy that Smith testified that Lewis later took that money from her. Even so, at a minimum, a jury question existed as to whether she was in imminent fear of physical harm at the moment that the exchange occurred.

¶ 22. What is more, Smith testified that, approximately one month after the date of the exchange at issue, she left Lewis. Smith testified that she “finally made [sic] just made my mind up and left any way.” Smith also testified that she could have “probably” left at any time and not have been in danger. Smith’s testimony suggests that she could have left Lewis and avoided physical harm.

¶ 23. Finally, and possibly most harmful to Smith’s duress defense, is her testimony that she voluntarily sold Darvocet to Nolan because she expected to profit from that sale. In particular, when asked whether she voluntarily took part in the sale, the following exchange transpired:

A. I thought I could keep the money, but I couldn’t.
Q. But you—
A. He took it anyway. I should have knew that.
Q. But you thought when you took the money you might get to keep it?
A. Yeah, but I knew I wouldn’t. I never kept no money.
Q. But you did voluntarily participate in this sale, did you not?
A. Yes.

Accordingly, the jury heard evidence that Smith did not appear frightened at the moment of the sale, that she successfully asserted a claim for money otherwise going to the man she claimed placed her in imminent fear of physical harm, that she later left that man without incident and probably could have at any time, and that she voluntarily sold Darvocet because she hoped to profit from it. In all actuality, Smith’s defense was that she feared the potential of physical harm at some point in the future, rather than at the moment the sale occurred. As such, it was certainly within the province of the jury to resolve the issue with a conviction. Accordingly, the circuit court did not err when it declined to grant a peremptory instruction and it did not err when it overruled Smith’s motion for a new trial. Therefore, our standard of review mandates that we affirm.

II. THE COURT ERRED IN OVERRULING APPELLANT’S HEARSAY OBJECTION.

¶ 24. Smith claims that the circuit court improperly admitted hearsay testimony during Deputy Sistrunk’s testimony. In particular, Smith references the following exchange during her attorney’s cross examination of Deputy Sistrunk:

Q. Do you know why it is that Terry Lewis, Jr. also known as Jimmy Morales, Jr. is not being prosecuted in this case?
A. We can’t find him. He has not been arrested.
BY MR. COLLINS: Court’s indulgence for one moment.
Q. Have you checked for him at this very address where the — the sting was held that night?
A. The day that we went and arrested Wendy, we checked for him there. We received information from neighbors that he was living in bars.
BY MR. COLLINS: Your Honor, I object to hearsay evidence.
BY THE COURT: Overruled.

¶ 25. We review a circuit court’s decision regarding the admission of evidence for abuses of discretion. Burton v. State, 875 So.2d 1120(¶ 6) (Miss.Ct.App.2004). In other words, we will not disturb a circuit court’s decision unless it is clearly wrong. Id. We will only find an abuse of discretion if a defendant shows clear prejudice resulting from an undue lack of constraint on the prosecution or undue constraint on the defense. Id.

¶ 26. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). Deputy Sis-trunk’s testimony was an out-of-court statement made not by Deputy Sistrunk but by “neighbors.” It is questionable as to whether the statement was made to prove the truth of the fact that Lewis was living in bars or to prove the truth of the fact that Deputy Sistrunk could not locate Lewis. Under either interpretation, nothing about Lewis being unbeatable or Lewis living in bars has any prejudicial effect upon Smith. Not only that, Smith does not present an argument for a prejudicial effect except for a brief mention in her reply brief that “[h]ad [she] been able to subpoena [Lewis], she might have had the option to present other evidence.” Smith blurs the lines between an error regarding the admission of evidence and some allegation for withholding evidence or some form of discovery violation. Smith never raised the issue of withholding evidence or discovery violations. In any event, because Smith experienced no prejudice from the testimony of which she complains, we will find no reversible error. E.g., Melton v. State, 723 So.2d 1156(¶ 23) (Miss.1998) (holding “[t]he jury would not have returned a different verdict had it not heard the hearsay testimony in issue; therefore, the error in admitting this testimony is insufficient to require reversal.”)

III. THE COURT ERRED IN FAILING TO GRANT APPELLANT’S MOTION FOR A DIRECTED VERDICT BECAUSE THE PROSECUTION FAILED TO PROVE THE IDENTITY OF THE PURCHASER OF THE CONTROLLED SUBSTANCE LAID IN THE INDICTMENT, AND THE INDICTMENT WAS INSUFFICIENT BECAUSE IT FAILED TO IDENTIFY THE PURCHASER OF THE CONTROLLED SUBSTANCE APPELLANT WAS CHARGED WITH SELLING.

¶ 27. In her final issue, Smith claims that the circuit court should have granted her motion for a directed verdict because the indictment alleged that she sold Darvo-cet to “Mississippi Bureau of Narcotics Informant # 224-2004.” Smith reasons that she was entitled to a directed verdict because the State only presented evidence that she sold Darvocet to Nolan and did not prove that “Mississippi Bureau of Narcotics Informant #224-2004” actually referred to Nolan.

¶ 28. The question of whether an indictment is fatally defective is a question of law. Jerninghan, 910 So.2d 748 at (¶ 1). We conduct a de novo review of questions of law. Id. This issue is a blended question of fact and law. In the context of the question regarding the circuit court’s decision on Smith’s motion for directed verdict, the issue is whether the evidence was sufficient to prove Smith sold Darvocet to Nolan. However, there exists a question of law as to whether a variance in the proof is fatal to an indictment where the indictment refers to a confidential informant as a coded number and the prosecution does not present evidence that the coded number actually refers to a particular confidential informant.

¶ 29. Pursuant to URCCC 7.06:

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them.

Our review of the record indicates that Smith’s motion for a directed verdict was insufficiently nonspecific. After the prosecution rested its case-in-chief, Smith’s attorney stated:

Your Honor, considering the evidence offered by the State of Mississippi in the light most favorable to the State of Mississippi, we move this Court to exclude that evidence and find that the State has wholly failed to meet its burden and to direct a verdict of not guilty for the defendant.

The circuit court then asked Smith’s attorney, “You want to be heard in argument?” Smith’s attorney responded, “No, your Honor.”

¶ 30. Smith never claimed that the circuit court should grant a directed verdict because of a variance between the proof and the indictment. One who enters a motion for a directed verdict on the grounds that the State has failed to make out a prima facie case must specifically state how the State failed to present a prima facie case. Jerninghan, 910 So.2d at 752(¶ 8). When a circuit court overrules an insufficiently specific motion for a directed verdict, we will not find that the circuit court erred. Id.

¶ 31. Procedural bar notwithstanding, this precise issue arose in Jerninghan. In that case, this Court held that the State demonstrated that the confidential informant, identified by code only, was the same confidential informant identified by name at trial. The State proved that the named confidential informant was the coded confidential informant when the named confidential informant testified that he acted as a confidential informant and that he purchased narcotics from the defendant. The State also avoided any variance in the proof when it presented videotaped footage of the actual sale. Accordingly, the State “thoroughly demonstrated that [the confidential informant] purchased ... [narcotics] from [the defendant] while acting as a confidential informant ..., further establishing his identity” as the coded confidential informant referenced in the indictment. Id at (¶9).

¶ 32. Smith’s defense counsel failed to specify a variance in the indictment as grounds for the motion for directed verdict. Not only that, as in Jeminghan, the testimony at trial showed Nolan to be the confidential informant named in the indictment. Therefore, we find this issue to be without merit.

¶ 33. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF DEX-TROPROPOXYPHENE AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHO-BA COUNTY.

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

      . According to Deputy Sistrunk's trial testimony, during a "pre-buy meeting,’’ "an informant and a[sic] agent or police officer ... arrange to meet at a ... specified location. At that location they discuss and make plans on how to purchase or information about illegal drugs or the whereabouts of illegal drugs.”

      . Smith’s appellate counsel represented the appellant in Jeminghan in which this Court rejected this very argument.


author: GRIFFIS, J., CHANDLER, J.,

text:
    Helen MAY, Individually and on Behalf of all Wrongful Death Beneficiaries of Jefferson Davis May, Deceased Appellant. v. PULMOSAN SAFETY EQUIPMENT CORPORATION, American Optical Corporation, Empire Abrasive Equipment Corporation, Louis M. Gerson Company, Inc., Mine Safety Appliances Company, Mississippi Valley Silica Company, Inc., Pauli & Griffin Company, Inc., And Schramm, Inc., Appellees.
    No. 2005-CA-01750-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.
    Rehearing Denied Feb. 6, 2007.

      Lance P. Bradley, R. Allen Smith, Jr., Crymes G. Pittman, Jackson, Mark W. Davis, Gulfport, attorneys for appellant.
    Randi Peresich Mueller, Jackson, Ronald G. Peresich, W. Mark Edwards, Biloxi, Johanna M. McMullan, Jackson, Clyde L. Nichols, III, Ridgeland, Blayne T. Ingram, Charles R. Wilbanks, Jr., Jackson, attorneys for appellees.
    Before MYERS, P.J., GRIFFIS AND BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Helen May, individually and on behalf of all wrongful death beneficiaries of Jefferson Davis May, brings this appeal of a summary judgment entered in favor of the Defendants, Pulmosan Safety Equipment Corporation, American Optical Corporation, Empire Abrasive Equipment Corporation, Louis M. Gerson Company, Inc., Mine Safety Appliances Company, Mississippi Valley Silica Company, Inc., Pauli & Griffin Company, Inc., and Schramm, Inc., among others (collectively referred to as the “Appellees”). On appeal, May argues that the trial court erred in barring her cause of action before it came into being, and that the statute of limitations defense does not challenge the merits of the underlying cause of action. We find no error and affirm.

FACTS

¶ 2. On March 18, 2002, Jefferson Davis May (“J.D.”) sued the Appellees for personal injuries he sustained as a result of being exposed to silicon dust. The Appel-lees were manufacturers of sand and various safety equipment used by J.D. in his career as a sandblaster. J.D. contracted silicosis sometime in the 1970s as a result of his exposure during the period from 1953 to 1968.

¶ 3. On May 6, 2002, J.D. died of silicosis. His wife Helen was substituted as the plaintiff, both individually and on behalf of J.D.’s wrongful death beneficiaries, on April 8, 2004. Since this was a mass tort complaint, it already alleged wrongful death among the claims against Appellees.

¶ 4. The trial court granted summary judgment based on its finding that J.D.’s claims for personal injuries were time-barred, and as a consequence, Helen’s wrongful death claim was time-barred as well.

STANDARD OF REVIEW

¶ 5. This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶ 9) (Miss.2002) (citations omitted). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. at 1177(¶ 9). If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his or her favor. Id. Issues of fact sufficient to require reversal of a summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. Id.

ANALYSIS

I. Did the trial court err in barring Helen’s claim before it came into being?
II. Is the statute of limitations defense procedural or substantive?

¶ 6. Although listed as separate issues, these issues actually contemplate a sole question — -when does a claim for wrongful death accrue. Therefore, we will address these issues together.

¶7. Helen argues the trial court erred because it held that her wrongful death claim expired before J.D. died. The Ap-pellees argue that the trial court was correct because a wrongful death claim is derivatively subject to. any defenses that would apply against the decedent.

¶ 8. “[A] wrongful death claim is subject to, and limited by, the statute of limitations associated with the claims of specific wrongful acts which allegedly led to the wrongful death.” Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923, 926(¶ 12) (Miss.2006). The wrongful death claim accrues when the claim for the underlying wrongful conduct accrues. Id. at (¶¶ 12-13). This limitations period may be tolled by the discovery rule. Sarris v. Smith, 782 So.2d 721, 724(¶ 11) (Miss.2001). For example, in Jenkins, the plaintiff brought a claim for the negligent wrongful death of a nursing home patient. Jenkins, 933 So.2d at 923(¶ 2). The tor-tious conduct occurred December 31, 1999. Id. at (¶ 3). As a result of this conduct, the patient died on October 4, 2001. Id. at (¶ 2). The wrongful death action was filed December 31, 2002. ., Id. The supreme court held it was time-barred because it was filed more than three years after December 31, 1999, the date the tortious conduct occurred. Id. at (¶ 13).

¶ 9. J.D. was diagnosed with silicosis in 1971. Viewing the evidence in the light most favorable to the Mays, J.D. discovered the Appellees’ tortious conduct, if any, by March 11, 1997. A medical record on this date is the first mention in the record that J.D.’s silicosis was a result of his job as a sandblaster. Therefore, J.D.’s claim against the Appellees began to run March 11, 1997. J.D.’s complaint, filed March 18, 2002, included claims for intentional and negligent wrongful death. Helen and J.D.’s other wrongful death beneficiaries were substituted as parties in April of 2004. Thus, the wrongful death claim against the Appellees is time-barred. The statute of limitations expired before this litigation was commenced. Miss.Code Ann. §§ 15-1-35; 15-1-49 (Rev.2003).

¶ 10. In the separate opinion, Judge Chandler cites Gentry for the proposition that “Jenkins did not alter the rule that a wrongful death action does not accrue until the death occurs.” We are of the opinion that this is precisely the point that the Supreme Court held when in Jenkins the Court overruled Gentry. We interpret the separate opinion to say that there remains the possibility of a restart to the limitations period so long as the injured person dies within the limitations period, but there is no such possibility of a restart to the limitations period if the injured person dies outside of the limitations period. Using the parties of this case as an example, if J.D. had died one day before the end of the limitations period, the principle offered by the separate opinion would allow an additional three years for J.D’s wrongful death beneficiaries to pursue the claim. If J.D. had died one week after the limitations period expired, his wrongful death beneficiaries would be barred by the statute of limitations. We do not interpret Jenkins to allow this distinction. See Thiroux v. Austin, 749 So.2d 1040, 1042(¶ 4) (Miss.1999) (“wrongful death action..is limited by the statute of limitations applicable to the tort resulting in the wrongful death”). See also Lee v. Thompson, 859 So.2d 981 (Miss.2003) (statute of limitations in wrongful death action subject to limitations period of underlying tort). Indeed, we do not recognize the “confusion” claimed by the separate opinion. Instead, we are of the opinion that the Supreme Court settled this issue in Jenkins.

¶ 11. We find no error. The summary judgment is affirmed.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

MYERS, P.J., BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. CHANDLER, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., LEE AND MYERS, P.JJ. AND IRVING, J. CARLTON, J., NOT PARTICIPATING.

CHANDLER, J.,

Specially Concurring:

¶ 13. I agree with the majority that Helen May’s wrongful death claim is time-barred. Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923, 926(¶ 12) (Miss.2006) has removed any doubt that a wrongful death claim is subject to the statute of limitations associated with the underlying wrongful conduct that allegedly caused the death. I write separately for the purpose of briefly addressing language employed by the majority that, in my opinion, is imprecise and potentially confusing.

¶ 14. Citing Jenkins, the majority states that “[t]he wrongful death claim accrues when the claim for the underlying wrongful conduct accrues.” With respect to the majority, that statement is not an accurate summation of the cited language from Jenkins. The cited paragraphs state:

Recognizing that, in Thiroux, we should have specifically overruled Gentry, we do so now, and hold that the statute of limitations on bringing a wrongful death claim is subject to, and limited by, the statute of limitations associated with the claims of specific wrongful acts which allegedly led to the wrongful death.
The three year statute of limitations applicable to negligence actions is codified in Miss.Code Ann. Section 15-1 — 49 (Rev.2003). We hold that Jenkins may not rely on any act of negligence which allegedly occurred three years before the complaint was filed on December 31, 2002. Claims — whether for negligence or wrongful death — that were not brought within the applicable statute of limitations are barred by that statute.

Id. at 926 (¶¶ 12-13). The language relied upon by the majority never states that the wrongful death cause of action accrues at the time that the claim for the underlying wrongful conduct accrues. I believe that it is unwise for this Court to construe Jenkins to stand for that proposition.

¶ 15. In my opinion, Jenkins did not alter the rule that a wrongful death action does not accrue until the death occurs. Gentry v. Wallace, 606 So.2d 1117, 1121 (Miss.1992). A cause of action accrues when it “comes into existence as an enforceable claim, that is, when the right to sue becomes vested.” Gentry, 606 So.2d at 1121 (citing Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 706 (Miss.1990)). In Long v. McKinney, 897 So.2d 160, 181 n. 31 (Miss.2004), the supreme court, discussing the history of the wrongful death cause of action, recognized that our statute creates a new cause of action for wrongful death. It does not “cause to survive or to be revived the deceased’s right of action, but enables designated members of his family to recover damages.... ” Thames v. State of Miss., ex rel. Shoemaker, 117 F.2d 949, 951 (5th Cir.1941). Under our statute, no right to sue vests in the wrongful death beneficiaries until the death occurs; therefore, a wrongful death action cannot accrue prior to the death. What it is that accrues in favor of the wrongful death beneficiaries at the time of the death is a statutory right to sue for those claims which the decedent could have brought had death not ensued. Miss.Code Ann. § 11-7-13 (Rev.2004). As Jenkins clarifies, if on the date the wrongful death suit was filed, a claim by the decedent, had he lived, would have been barred by the statute of limitations applicable to that claim, then the wrongful death claim is likewise time-barred. Jenkins, 933 So.2d at 926(¶ 12). This is consistent with the fact that, under the statute, a wrongful death claim is “derivative in nature, arising from and dependant upon the wrong done the (fatally) injured person.” Gentry, 606 So.2d at 1123 (Robertson, J., dissenting).

¶ 16. The principle that a wrongful death action does not accrue until the death means that no wrongful death action may be commenced for a death that is anticipated but has not yet occurred. In re Brantley v. Brantley, 865 So.2d 1126, 1131-32(¶ 18) (Miss.2004) (affirming the dismissal of a wrongful death claim because the person who was the subject of the action was still alive). Further, because an action for wrongful death does not accrue until death, we have held that “it is impossible for the deceased to assign any interest in the claim.” In re Estate of England, 846 So.2d 1060, 1070(¶ 32) (Miss.Ct.App.2003). In my opinion, to avoid fostering confusion in this area of law, the conceptual distinction between the commencement of the applicable limitations period for a wrongful death action and the date that the wrongful death action accrues must be preserved.

KING, C.J., LEE AND MYERS, P.JJ., AND IRVING, J., JOIN THIS SPECIALLY CONCURRING OPINION.