text:
    Wayne EBARB Individually and on Behalf of His Minor Children, Cody Ebarb and Trevor Ebarb, Dewayne Ebarb, and Kim Ebarb v. WILLIS-KNIGHTON MEDICAL CENTER, et al.
    No. 2007-CC-0876.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Chen, Eric M.D.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. K, No. 498,608; to the Court of Appeal, Second Circuit, No. 42369-CW.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    John Dale RILEY, Jr. and Pearl Elaine Riley v. Wava H. BUDDEN, Allstate Insurance Company, and State Farm Mutual Automobile Insurance Company.
    No. 2007-C-0879.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Riley, John Dale Jr.; Riley, Pearl Elaine; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 493,658; to the Court of Appeal, First Circuit, No. 2005 CA 1752.

Denied.

CALOGERO, C.J., would grant.

KNOLL, J., would grant.


text:
    Christopher J. MONTAGNINO and Jennifer Montagnino v. Fred MOLIERE and State Farm Mutual Automobile Insurance Company.
    No. 2007-CC-0880.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Montagnino, Christopher J. et al.; Montagnino, Jennifer; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 2003-13794; to the Court of Appeal, Fourth Circuit, No. 2007-C-0149.

Denied.

TRAYLOR, J., would grant.


text:
    SOUTH PETERS HOTEL INVESTORS, L.P. v. ROY ANDERSON CORP., Mechanical Construction Co., L.L.C., MCC Services, L.L.C., Coastal Air Balance, Inc., Atlas Blowpipe & Sheet Metal Works, Inc., King & Co., Inc., New Orleans Glass Company, Inc., Southern Wall & Windows, Inc., et al.
    No. 2007-CC-0881.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Performance Roof Systems Inc.;— Other; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2005-6170; to the Court of Appeal, Fourth Circuit, No. 2007-C-0196.

Denied.


text:
    Jimmy VIDRINE, et al. v. CONSTRUCTORS, INC., et al.
    No. 2007-C-0883.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Vidrine, Jimmy et al; Bertrand, Spencer et al.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. G, Nos. 207,105, 203,194; to the Court of Appeal, Third Circuit, No(s). 06-544, 06-545.

Denied.


text:
    Barbara HOLT v. Dr. Donald RICHARDSON and XYZ Insurance Company In re Medical Review Panel Proceeding of Barbara Holt.
    No. 2007-C-0887.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Holt, Barbara; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, Nos. 03-4260, 2004-18346; to the Court of Appeal, Fourth Circuit, No(s). 2006-CA-1324, 06-CA-1323.

Denied.


text:
    A. Frances ARMSTRONG d/b/a Armstrong Properties v. Gregg HUSKEY and Coldwell Banker Gregg Huskey, Inc.
    No. 2007-C-0898.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Coldwell Banker Gregg Huskey Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Second City Court of New Orleans, No. 02-396; to the Court of Appeal, Fourth Circuit, No. 2006-CA-0518.

Denied.


text:
    CITY OF NATCHITOCHES v. CROSSTECH BOILER SERVICES, L.P., et al.
    No. 2007-CC-0900.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Natchitoches, City of; Hartford Steam Boiler Inspection & Insurance;— Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Natchi-toches, 10th Judicial District Court Div. B, No. 75,908-B; to the Court of Appeal, Third Circuit, No(s). CW 07-00156, CW 07-00154.

Denied. Moot.


text:
    SUTTON STEEL & SUPPLY, INC., et al. v. BELLSOUTH MOBILITY, INC.
    No. 2007-CC-0902.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re BellSouth Mobility Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. A, No. 91421-A; to the Court of Appeal, Third Circuit, No. CW 07-00106.

Denied.

TRAYLOR, J., recused.

VICTORY, J., would grant.


text:
    Ollie NEWSOM, et al. v. LAKE CHARLES MEMORIAL HOSPITAL.
    No. 2007-C-0903.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Lake Charles Memorial Hospital; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calca-sieu, 14th Judicial District Court Div. B, No. 2003-0547; to the Court of Appeal, Third Circuit, No. 06-1468.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    Brian RIVET and Belinda Rivet v. VACHERIE-GHEENS VOLUNTEER FIRE COMPANY, Lafourche Parish Fire Protection District No. 9, and American Alternative Insurance Corporation.
    No. 2007-C-0904.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Rivet, Brian et al.; Rivet, Belinda; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of La-fourche, 17th Judicial District Court Div. E, No. 85-348; to the Court of Appeal, First Circuit, No. 2006 CA 0537.

Denied.


text:
    David Michael LIEUX and Lucile Arden Lieux, Individually, and on Behalf of Their Minor Son, Frederick Joseph Lieux, II v. Dr. Charles F. MITCHELL, d/b/a ENT Medical Center and Saint Paul Fire and Marine Insurance Company.
    No. 2007-C-0905.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Lieux, David Michael et al.; Lieux, Lucile Arden; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 486,216; to the Court of Appeal, First Circuit, No. 2006 CA 0382.

Denied.


text:
    STATE of Louisiana v. Sidney Travis COUTEE.
    No. 2007-KK-0911.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Coutee, Sidney Travis; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. A, No. 71678-FA; to the Court of Appeal, Third Circuit, No. KW 07-00338.

Denied.


author: PATRICIA RIVET MURRAY, Judge.

text:
    BROOKEWOOD INVESTMENTS CO., L.L.C. v. SIXTY-THREE TWENTY-FOUR CHEF MENTEUR HIGHWAY, L.L.C. and Jacob V. Morreale.
    No. 2007-CA-0050.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 16, 2007.
    Brian A. Jackson, Shannon S. Holtzman, Dana M. Douglas, Liskow & Lewis, APLC, New Orleans, LA, for Defendant/Appellee Linebarger Goggan Blair & Sampson, LLP.
    Charles E. McHale, Jr., New Orleans, LA, for Defendants/Appellants Sixty-Three Twenty-Four Chef Menteur Highway, L.L.C. and Jacob V. Morreale.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, Jr.).
   PATRICIA RIVET MURRAY, Judge.

| T This is a suit to annul a tax sale. The parties to this suit are the tax purchaser, Brookewood Investments Co., L.L.C. (“Brookewood”); the tax debtor, Sixty-Three Twenty-Four Chef Menteur Highway, L.L.C. (“Sixty-Three”); and the two third party defendants: the City of New Orleans (the “City”) and Linebarger, Gog-gan, Blair & Sampson, L.L.P. (the “Line-barger Firm”). From the trial court’s judgment sustaining the Linebarger Firm’s peremptory exception of no cause of action, Sixty-Three appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 10, 2003, Brookewood purchased immovable property located in Orleans Parish for $591,343.03 — the total amount of the four years of delinquent ad valorem taxes (1999-2002) plus $140 in costs. On February 27, 2006, Brookewood filed a Motion for Writ of Seizure and Possession against Sixty-Three. Sixty-Three responded by filing a reconventional demand asserting that the tax sale was invalid and should be declared an absolute nullity. Sixty-Three also filed a third-party demand against the City and the City’s attorney, the Linebarger Firm. Sixty-Three asserted that the third-party defendants are |2necessary parties, to this suit. ■ The Linebarger Firm responded by filing an exception of no cause of action. The trial court sustained the exception and dismissed the Linebarger Firm without prejudice. This appeal followed.

DISCUSSION

The sole issue presented on this appeal is whether the trial court erred in sustaining the Linebarger Firm’s exception of no cause of action. We review a trial court’s decision on an exception of no cause of action de novo “because the exception raises a question of' law and the lower court’s decision is based only on the sufficiency of the petition.” City of New Orleans v. Board of Comm’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253; see La. C.C.P. art. 931 (providing that no evidence can be- introduced to support or to controvert an exception of no cause of action). The issue we must decide is “whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.” Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993).

Louisiana has a system of fact pleading, and the pleader’s mere conclusions unsupported by facts are insufficient to state a cause of action. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131. Stated otherwise, “[i]t is insufficient to state a cause of action where the petition simply states legal or factual conclusions without setting forth facts that support the conclusions.” Bibbins v. City of New Orleans, 02-1510, p. 5 (La.App. 4th Cir.5/21/03), 848 So.2d 686, 691.

With those principles in mind, we turn to the allegations pled in Sixty-Three’s third party demand, which are as follows:

|3* Municipal Ordinance No. 18637 M.C.S. adopted by the City Council on March 5, 1998 permitting collection penalties of 30% of the amount of taxes, penalty, and interest due for the collection of delinquent taxes is unconstitutional.
• The collection penalties in this case, which amount to approximately $300,000, consists primarily of attorney’s fees that were paid to the Line-barger Firm, and these fees do not represent penalties paid to the City for delinquent taxes.
• The Linebarger Firm performed a minimum of legal work, if any, and the fees charged are far in excess of any reasonable legal charges and, therefore, constitute violations of the professional rules promulgated by the Supreme Court of Louisiana, which regulates attorney’s fees that would be allowed and approved in the State of Louisiana.

The gist of the allegations in the third party demand is two-fold: (i) the 1998 ordinance authorizing collection penalties is unconstitutional, and (ii) the collection penalties that were paid as attorney’s fees to the Linebarger Firm are unreasonable. Insofar as the allegation that the 1998 ordinance is unconstitutional, this allegation is insufficient to state a cause of action against the Linebarger Firm. As to the second issue, Sixty-Three cites Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982), for the proposition that the court has authority to review the reasonableness of attorney’s fees. The Linebarger Firm counters that Leenerts Farms is inapposite. We agree.

In Leenerts Farms, the sole issue was “whether the courts may inquire into the reasonableness of attorney fees which have been fixed in a note by the parties as a percentage of the amount due upon default by the debtor.” 421 So.2d at 218. In Leenerts Farms, unlike in this case, the attorney whose fees were challenged was not a defendant. Leenerts Farms thus does not stand for the proposition that a third party, like Sixty-Three, can maintain a cause of action to challenge attorney’s fees under a contract to which it was not a party. Sixty-Three has no cause of action to challenge the reasonableness of the fee charged under the contract between the City and its attorney, the Linebarger Firm, to which it was not a party.

Nor does Sixty-Three have a cause of action against the Linebarger Firm in tort. As a general rule, an attorney does not owe a duty to act reasonably to prevent economic harm to his client’s adversary. Frank L. Maraist and Thomas C. Galligan, Jr., Louisiana Tort Law, § 5.07[7](2nd ed. 2006)(citing Penalber v. Blount, 550 So.2d 577 (La.1989)). Based on the principle of undivided loyalty embodied in the Rules of Professional Conduct, the Louisiana Supreme Court has “adopted the traditional, majority view that an attorney does not owe a legal duty to his client’s adversary when acting on his client’s behalf.” Scheffler v. Adams and Reese, LLP, 06-1774, p. 14 (La.2/22/07), 950 So.2d 641, 652. A non-client has no cause of action against his adversary’s attorney absent allegations of malice or specific intent to harm. Montalvo, 637 So.2d at 130-31. No such allegations were made in this case. Accordingly, the trial court did not err in sustaining the Linebarger Firm’s exception of no cause of action.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . According to Brookewood, Sixty-Three was the owner of the Property at the time of the tax sale, and Jacob V. Morreale was a former owner. For ease of discussion, we refer herein to these parties collectively, as "Sixty-Three.”

      . The Ordinance provides:

        All delinquent taxes for prior years, and taxes that remain delinquent on April 1 of the year in which they become delinquent, incur an additional penalty to defray costs of collection if the taxing unit has referred the collection of the delinquent takes, penalty and interest to an attorney or collection agency. The amount of the additional penalty shall be thirty percent of the amount of taxes, penalty, and interest due." Ordinance No. 18637, § 150-46.3.

      . Likewise, Sixty-Three's allegation that the 1999 taxes are prescribed is insufficient to state a cause of action against the Linebarger Firm.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    STATE of Louisiana v. Kevin ALEXANDER.
    No. 2006-KA-1274.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 16, 2007.
    Eddie J. Jordan, Jr., District Attorney, Alyson R. Graugnard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge EDWIN A. LOMBARD).
   JOAN BERNARD ARMSTRONG, Chief Judge.

1 .STATEMENT OF CASE

On February 11, 2004, the defendant, Kevin Alexander, was charged by bill of information with aggravated battery, a violation of La. R.S. 14:34. On February 17, 2004, he pleaded not guilty. On March 2, 2004 a preliminary hearing was held, and the trial court found probable cause. On October 6, 2004 a hearing was held, and the trial court granted the state’s Prieur motion. The defendant noted an objection. On October 12, 2004 after a bench trial, the defendant was found guilty as charged. The trial court set sentencing on November 30, 2004, and ordered a presentence investigation (PSI) report. The state filed a multiple bill. On November 30, 2004 the defendant filed a motion to quash the multiple bill. On that date, the hearing was held, but then recessed because the PSI had not been received. Sentencing was reset to January 25, 2005, March 9, 2005, and April 15, 2005 when the PSI was received. Sentencing was set for May 18, 2005, but then continued on defense motions to June 21, 2005 and August 19, 2005. On August 19, 2005 the multiple bill hearing and sentencing was set for September 2, 2005. Because of Hurricane Katrina, sentencing was next set for March 28, 2006. On that date the defendant was sentenced to six years at hard labor concurrent with |aany other sentences. The court noted that it was a crime of violence. The multiple bill hearing was then held, and the court found the defendant to be a second felony offender, vacated the previous sentence, and sentenced the defendant to six years at hard labor under La. R.S. 15:529.1 to run concurrently with any other sentence. Defense counsel filed a written motion for appeal, which was granted.

STATEMENT OF FACT

Factual Testimony — 2000 Battery Conviction — Admitted under Prieur

At the October 12, 2004 bench trial over the state’s objection defense counsel stated that the victim in this case, Stella Boykins, had alleged that the defendant had stabbed her in 2000. The defendant was charged with aggravated battery, but ultimately due to the absence of injury and medical reports, he was found guilty of simple battery.

That prior 2000 conviction was the subject of the state’s Prieur motion, which was granted in this case. Sheryl Green testified to the facts in that 2000 case. She testified that she had known Stella Boykins, the victim, and the defendant for ten to fifteen years. She stated that on August 20, 2000 at about 1:00 a.m. she was at Boykins’ house. They had gone to a party. On the way home there was a confrontation between the defendant and Boykins. Green testified that she was in the back seat of the car. Boykins was in the passenger seat, and the defendant was driving. Green testified that the defendant took out a knife, swung at Boykins, and hit her leg. Although she was not sure if Boykins had been stabbed, Green grabbed the defendant from the back seat. She let him go, and the defendant put the knife in her face and told her to get out of the car. Green stated that she refused to exit the car, and the defendant drove to Boykins’ house. When the car stopped, the defendant jumped out, opened the back door, and put the knife |ain her face. Green testified that she pushed the knife out of her face, the defendant swung at her, and the knife struck her face. She had a flesh wound on her face, but she did not realize it. She kicked the defendant off of her, exited the car, and began to fight with the defendant. Green testified that the children inside heard the noise, her daughter ran next door to a neighbor, and the police were called. The defendant then left. Boykins went inside and changed her pants so that the officers could see her leg wound.

On cross-examination Green admitted that she attacked the defendant from the back seat, but denied stabbing him. She conceded that she did not need stitches and did not seek medical attention. Green testified that her friend, Mary Williams, was in the back seat of the car. She had gone to party with Green and Boykins. Green stated that Williams was there when the police arrived, but she was not named on the police report because she told the officers that she did not want to have anything to do with the incident. Green stated that her daughter testified at the trial involving the battery that occurred in 2000.

Stella Boykins, the victim of the current aggravated battery, testified to the facts of the 2000 battery. She stated that on the night of August 20, 2000 she, Sheryl Green, and the defendant went to a party. When they were leaving, she and the defendant argued, and he picked up a knife and hit her on the side of the head with it. When Green asked the defendant why he did that, he argued with her. The three then drove toward Boykins’ house where Green’s children were staying. She stated that the defendant exited the car and started fighting inside. Boykins said that the defendant cut her in the leg and cut Green’s face. Then he left before the police arrived. Boykins stated that they had arrived at her house when the defendant cut her leg.

|40n cross-examination Boykins stated that on August 20, 2000 she and the defendant were arguing about the fact that he drank too much. She stated that the defendant hit her in the vehicle. She did not know that Green had attacked the defendant from the back seat. Boykins stated that the defendant tried to put Green out of the car, but then changed his mind. She said that she and Green exited the car at her house. The defendant was fighting with her, but Green tried to stop him from hitting Boykins. She stated that then the defendant pulled out his knife, cut Green on the face, and cut Boykins on the leg. She refused treatment from EMS, but went to the hospital the next day. She stated that she had twelve or fourteen stitches in her leg.

The defendant testified that on August 20, 2000, his neighbor, Mary Williams, invited him, Stella Boykins, and Sheryl Green to a birthday party. Earlier that day his daughter, Betty Boykins, had her birthday party. Williams’ older brother agreed to keep an eye on the children including Sheryl Green’s children. The defendant stated that all four of them went to the party and had a few drinks. On the way home Green and Boykins wanted to stop at the store to buy more beer. He took them to the store and then out to the lake because the women insisted. The defendant testified that he was worried about the children. After an hour at the lake, the defendant insisted that they all go home to their children. Sheryl Green started fighting with him because she was not ready to go. The defendant testified that he managed to get them all into the car and headed home when Sheryl Green took out a knife and cut him on the back of the neck. He stated that he had a knife under the floorboard; he took it out, and put it in her face. Then he put it up because he did not want to stoop to her level. The defendant stated that when they arrived at the house, Boykins and Green “started up” with |shim again with the children standing right there. He stated that his children’s testimony had saved him at the last trial, but Betty had lied to the court today. The defendant claimed that Betty’s daughter and Sheryl Green’s daughter testified in 2000 that neither Boykins nor Green had been cut; however, he had been cut on the back of the neck. When he was released on the 2000 crime, he stated that he went back to live with Boykins and his children in the same apartment.

On cross-examination the defendant admitted that his knife was in the car under the carpet on August 20, 2000. He stated that he pulled out his knife after Green stabbed him in the neck with her knife. He stated that he wanted to put her out of the car, but then decided to be better than that. The defendant claimed that Green started the fight. He stated that by August 20, 2000 he knew that Boykins was cheating on him; his children also knew the truth.

FACTUAL TESTIMONY — 2004 AGGRAVATED BATTERY-INSTANT CASE

Stella Boykins testified that on December 23, 2003 at about 8:00 p.m. she had just made it home from work after stopping by her mother’s house on the way. The defendant started an argument with her, pushed her down on the sofa, and pushed her head back. Blood started gushing from her head. According to Boy-kins, the defendant grabbed her by the back of her shirt and dragged her from the living room to the bedroom as he called her names and told her that she was going die. He went into the kitchen, retrieved a knife, and stabbed her in the leg. Then he said that the knife was not big enough and went back into the kitchen. Boykins testified that she then ran out of the door toward the pay phone on the | ^corner. Then she saw a light on in a neighbor’s house and went there. The neighbor called the police. The defendant followed her, but the neighbor told him to leave. Boykins stated that an ambulance came, but she waited for the crime lab to show up. After waiting about an hour, she let her niece drive her to the hospital. Boy-kins reviewed her medical records and said that she suffered a laceration to the head and a leg wound. She had stitches in the leg wound and had to return to Charity Hospital to have them removed. Boykins stated that she called 9-1-1 from the hospital because she saw the defendant there.

On cross-examination Boykins stated that she had just arrived home from work. She poured a beer, but did not get to drink it. She said that the defendant accused her of cheating at work, and that started the argument. She stated that she showed the officers the knife. Boykins admitted that she refused EMS treatment at the scene, but said that she went to the hospital in about forty-five minutes. She had sixteen stitches in her leg.

Officer Kenney Guidry investigated Boy-kins’ complaint of aggravated battery by cutting (domestic). He went to the scene. He testified that Boykins had a small cut to the rear of her head and a small laceration on her thigh. When the officer arrived, Boykins’ leg was bleeding, and the defendant was not there. Officer Guidry stated that he obtained an arrest warrant for the defendant.

On cross-examination Officer Guidry testified that he believed that Boykins had relocated to a neighbor’s house where he met her, but then they relocated to her residence, and no one was there at the time. He stated that the neighbor chose not to be identified, and he did not interview her. At Boykins’ residence he found a small kitchen knife, but he could not recall if he seized it. He said that Boykins refused to go to the hospital in the ambulance, which had been called. He could |7not remember if Boykins was under the influence of alcohol or drugs. The officer said that he wrote the initial police report, but another officer, K. Guidry, prepared the supplemental report.

Stephanie Briscoe, the senior police dispatcher, testified that she reviewed the tape of the 9-1-1 call in the 2004 case. She identified the incident recall sheet where any information from the complainant would have been recorded. The tape was played, and the tape and the incident recall sheet were introduced into evidence.

On cross-examination Briscoe stated that there was no mention of a stabbing in the first call. A car was dispatched within two minutes. Briscoe acknowledged that the second call originated at the hospital. The victim made the call from the hospital and named the defendant as the perpetrator.

The defendant testified that on December 23, 2003 Boykins arrived home after work and started to fight with him. Boy-kins, who was drunk, was cursing at him. He tried to get away from her, but she blocked the door. According to the defendant, .Boykins fell backward and perhaps hit her head on the designer wood at the top of the sofa. He put ice into a towel, but Boykins had already run out the door to the neighbor’s house. The defendant stated that he went to Boykins’ mother’s house to get help, but Boykins had already called and said that he had stabbed her. The defendant denied stabbing Boykins; he said that he never had a knife. He said that he knew what Boykins was like when she had been drinking, but he would not hurt her. He said that he promised his mother (she had died) that he would never hurt Boykins again because of the children. The defendant stated that he was working two jobs (sixteen hours a day). He claimed that if he intended to hurt Boykins, he would have hurt her the night she came home with passion |smarks all over her body, not December 23, 2003 after work. He claimed that the evidence was clear to him and the children that Boykins was sleeping with someone else. The defendant stated that he and Boykins had been together for eighteen years, but there had been altercations and problems. He thought that after his mother passed away, everything was okay. He even took a second job, but later figured out that Boykins was just trying to get him out of the way.

On cross-examination the defendant testified that Boykins started the argument on December 23, 2003. He admitted having a prior conviction for possession of marijuana with intent to distribute. He claimed that Green and Boykins were both lying.

On redirect examination the defendant stated that he had the knife in his car for protection, but he had no knife in the house. On recross-examination he admitted that he had a kitchen in his house in which knives were kept.

The defense called Betty Boykins, the victim’s daughter, to the stand. She identified the defendant as her father. She testified that she did not see what happened. Betty Boykins stated that the day before the stabbing, the defendant had a knife in the house and threatened that if she had not been there, he would have stabbed her mother that day. She stated that her father was also stabbed during the 2000 incident.

On cross-examination Betty Boykins stated that she was sixteen at the time of the second trial; she had been twelve at the time of the trial relating to the 2000 incident.

On redirect examination she stated that she did not know if she testified at the trial relating to the 2000 incident, and she did not know how old she was in June 2001 when that trial was held.

IflAt the conclusion of the testimony the trial court stated that it was not considering the August 2000 incident even though it had granted the state’s Prieur motion as to that evidence. The court noted the victim’s testimony, which was substantiated by Officer Guidry’s testimony that Boy-kins suffered wounds to her head and leg. The court found the defendant guilty as charged.

ERRORS PATENT

A review of the record reveals no errors patent.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant argues that the trial court imposed an excessive sentence. He contends that the maximum penalty for a violation of La. R.S. 14:34 is ten years at hard labor. As a second felony offender he was exposed to a sentence of not less than five or more than twenty years at hard labor, but as a multiple offender the sentence will be served without any diminution. He argues that a six-year sentence is excessive for this “diminimus violation of the aggravated battery statute.”

The State counters that the defendant did not orally object to the sentence and he did not file a written motion for reconsideration of sentence. Therefore, the State contends that the defendant is precluded from raising this issue on appeal. If this Court finds otherwise, the State argues that the trial court clearly articulated its reasoning for the six year sentence, and the sentence is not excessive under the circumstances.

In State v. Smith, 2005-0375, p. 10 (La.App. 4 Cir. 7/20/05), 913 So.2d 836, 842, this Court stated:

hoUnder La.C.Cr.P. art. 881.1, a defendant may file a motion for reconsideration of sentence within thirty days following the imposition of sentence. The motion shall be oral if made at the time of sentencing or written if made thereafter, and it shall set forth the specific grounds on which it is based. La. C.Cr.P. art. 881.1 A(2). Absent the filing of a timely written motion for reconsideration of sentence or making of an oral objection at the sentencing hearing, a defendant is precluded from urging on appeal any ground of objection to the sentence.

This Court has held that the failure to file a motion to reconsider sentence or to object to the sentence at the time it is imposed precludes a defendant from raising a claim about his sentence on appeal. State v. Batiste, 2006-0875, p. 9 (La.App. 4 Cir. 12/20/06), 947 So.2d 810. See also State v. Clay, 2005-1467 (La.App. 4 Cir. 10/4/06), 942 So.2d 563; State v. Rodriguez, 2000-0519, p. 9 (La.App. 4 Cir. 2/14/01), 781 So.2d 640, 647; State v. Tyler, 98-1667, p. 14 (La.App. 4 Cir. 11/24/99), 749 So.2d 767, 775.

The appellate record does not contain a motion to reconsider sentence. The sentencing transcript contains a verbal objection only to the trial court’s finding that the defendant was a second offender; however, there is no objection to the sentence. In his brief the defendant does not mention a motion to reconsider sentence and does not claim that he orally objected to the sentence. Because the defendant failed to object or file a motion to reconsider sentence, he is precluded from raising the excessive sentence issue on appeal.

I,,ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, the defendant requests that this Court search the record for any errors patent and take the proper corrective action. This Court reviews every record for errors patent, and as noted above, none were found in this record.

For the foregoing reasons the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Betty Boykins testified before the defendant testified at trial.

      . Regardless, the assignment of error does not appear to have merit. The trial court took into account the defendant's previous documented history of convictions in municipal court, his arrest for battery, as well as his controlled dangerous substance conviction. The court noted that the minimum sentence allowed under La. R.S. 15:529.1 was five years, and the defendant was being sentenced to six years because of his prior battery and convictions.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Sylvester TRACKLING.
    No. 2007-KA-0068.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 16, 2007.
    Eddie J. Jordan, Jr., District Attorney, Alyson R. Graugnard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

      (Court composed of Judge DENNIS R. BAGNERIS Sr., Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

11 The defendant, Sylvester Tracking, contends that his life sentence as a multiple offender is constitutionally excessive. After review of the record in light of the applicable law and the arguments of the parties, we affirm the defendant’s sentence.

Relevant Facts and Procedural History

On October 22, 2003, the defendant was convicted by a 6-person jury of one count of attempted sexual battery, a violation of La.Rev.Stat. 14:43.1. The court ordered a presentence investigation report and, on January 9, 2004, sentenced the defendant to serve five years at hard labor without the benefit of probation, parole, or suspension of sentence. The court also ordered that the defendant register as a sex offender. On appeal, this Court reversed the defendant’s conviction, finding that the trial court erred when it denied the motion to quash because attempted sexual battery is not a valid crime. State v. Trackling, unpub., 2004-0759 (La.App. 4 Cir. 12/1/04, 888 So.2d 1169, 2004 WL 3095846). The Louisiana Supreme Court granted certio-rari, held that ^attempted sexual battery is a cognizable crime in Louisiana, reversed this Court’s ruling, and remanded the matter for consideration of the assignments of error which this Court had pre-termitted. State v. Trackling, 2004-3222 (La.1/19/06), 921 So.2d 79. On remand, this Court affirmed the defendant’s conviction and sentence. State v. Trackling, 2004-0759 (La.App. 4 Cir. 2/27/06), 930 So.2d 60. Although the State had filed a multiple bill of information at the time of the original sentencing on January 9, 2004, a hearing was not held prior to the lodging of the original appeal. Subsequently, on March 14, 2006, the trial court conducted the multiple bill hearing, but did not rule at that time. On September 27, 2006, the court adjudicated the defendant as a fourth offender, vacated the original sentence of five years, and resentenced the defendant to life imprisonment without the benefit of probation, parole, or suspension of sentence. This appeal from the sentencing as a multiple offender follows.

Discussion

In his sole assignment of error, the defendant alleges that his sentence of life imprisonment is constitutionally excessive. He concedes that a life sentence was mandatory under La. Rev.Stat. 15:529.1 because two of his three prior convictions and the instant offense are crimes of violence. He avers, nevertheless, that because of his speech defect and limited cognitive capabilities, this mandatory minimum sentence is constitutionally excessive.

Even though a sentence under the Habitual Offender Law is the minimum provided by that statute, the sentence may still be unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, or is nothing more than the purposeful imposition of pain and suffering and is grossly out of ^proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677; State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993). However, the entire Habitual Offender Law has been held constitutional, and, thus, the minimum sentences it imposes upon habitual offenders are also presumed to be constitutional. Johnson, 97-1906, pp. 5-6, 709 So.2d at 675. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must show by clear and convincing evidence that he is exceptional, which in this context means that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Lindsey, 99-3256, p. 5 (La.10/17/00), 770 So.2d 339, 343; Johnson, 97-1906, p. 8, 709 So.2d at 677. In 2001, the state legislature reduced many mandatory minimum sentences for habitual offenders with its enactment of Acts 2001, No. 403, § 4, eff. June 15, 2001.

The defendant in this case committed his offense after the effective date of the amendments reducing the mandatory minimum sentence for habitual offenders, but a life sentence was still the minimum that could be imposed on the defendant under La.Rev.Stat. 15:529.1(A)(l)(b)(i)(ii) because the instant felony conviction and two of his prior felony convictions were crimes of violence as defined by La.Rev.Stat. 14:2(13).

In his brief before this court, the appellant claims that the mandatory sentence is excessive as to him because of his speech problems and limited intellectual functioning. At the sentencing hearing, however, no argument or ^evidence was presented by the defense to show that there were mitigating factors that overwhelmed the presumption that the legislatively-mandated sentence was appropriate. Furthermore, as to the alleged mitigating factors, it does not appear that they are sufficient to render the life sentence excessive. The written report prepared in conjunction with the defendant’s pretrial competency hearing reflects that the defendant said that he had attended school through the ninth grade, although because of his speech problems and “slow learning” he was in special education. Although there was a reference in the report to the defendant having “some cognitive limitations, most likely associated with borderline intellectual functioning,” he understood complex and abstract legal terms. As to the speech articulation problems, the report indicated that, with some repetition, the defendant could be understood and, moreover, was capable of writing down the items which he could not pronounce. Overall, the report generated for the competency hearing does not indicate that the defendant suffers from any problems that prevent him from avoiding criminal conduct.

In any event, the defendant’s criminal history cannot be explained by either his disability or his lack of intelligence. His crimes were not particularly economic or drug-related. Especially notable is that his 1996 conviction did not include a single offense, but rather involved guilty pleas to aggravated battery, sexual battery, and oral sexual battery. Furthermore, his crimes escalated from simple burglary, then to aggravated battery, and then to multiple forms of sexual batteries. While the record does not indicate whether the 1996 offenses involved a child as the instant one did, the record clearly establishes that the defendant is a | ¡^sexual predator whose victims include children and who has a propensity for violence. The defendant’s argument is without merit.

Conclusion

Accordingly, for the foregoing reasons, the defendant’s sentence and conviction is affirmed.

AFFIRMED.

      . The trial court later refused to conduct the hearing because of this Court’s decision reversing the conviction.

      . Moreover the 1990 case which resulted in the conviction for aggravated battery initially involved an additional charge of attempted aggravated rape. The defendant was convicted of the attempted rape, and this Court affirmed. State v. Trackling, 598 So.2d 615 (La.App. 4 Cir. 1992). The Louisiana Supreme Court reversed, finding that the evidence failed to establish that the defendant had the specific intent to commit anal or vaginal sexual intercourse. While the evidence did establish the crime of attempted aggravated crime against nature, that offense was not a lesser included offense which was statutorily responsive and thus could not be substituted. State v. Trackling, 609 So.2d 206, 208 (La.1992). The 1990 case did not involve a minor victim.


author: JOAN BERNARD ARMSTRONG, Chief Judge. CANNIZZARO, J.

text:
    Josephine O’ROURKE v. DAYS INN NEW ORLEANS, Days Inn Worldwide, Inc. d/b/a Days Inn New Orleans and Days Inn Acquisition Corporation d/b/a Days Inn New Orleans.
    No. 2006-CA-1588.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 16, 2007.
    George R. Blue, Jr., George R. Blue, Jr., LLC, New Orleans, LA, for Plaintiff/Appellant.
    David Shaw, Lorraine P. Mclnnis, Stephens & Grace, Metairie, LA, for Defendants/Appellees.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III and Judge LEON A. CANNIZZARO Jr.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| ¶ This is an appeal from a summary judgment of the trial court dismissing the plaintiffs suit against Click Operating Corporation (Click) and Maryland Casualty Company (MCC). For the reasons that follow, we affirm.

Nora’s Creole Cafe (Nora’s) operates a restaurant located at the Days Inn hotel on Read Boulevard in Eastern New Orleans pursuant to a commercial lease between Days Inn New Orleans (Days Inn) and Nora Lewis Dejoie, doing business as Nora’s Creole Cafe. On or about May 24, 2001, one of Nora’s employees, the plaintiff-appellant Josephine O’Rourke, allegedly slipped and fell while on Nora’s premises, claiming injuries caused by a defective and inoperable air conditioning system that allowed condensation to form on the floor, creating a dangerous condition. In May, 2002, Ms. O’Rourke filed a petition for damages naming as defendants Days Inn, Days Inn Worldwide, Inc. and Days Inn Acquisition Corporation (the Days Inn defendants), alleging negligence and strict liability pursuant to Articles 2317, 2322 and 2695 of the Louisiana Civil Code. Three months later, she amended her suit to add “Click Corp.” and its alleged | ¡Insurer, Zurich U.S. as defendants. Thereafter, by joint motion, the trial court dismissed the Days Inn Defendants without prejudice.

In 2004, the trial court granted Click’s motion for summary judgment, finding that pursuant to the lease between Click and Nora’s, the latter had sole responsibility for maintenance of the air-conditioning system. The lease agreement provided in pertinent part:

5. Care and Maintenance of Premises. LESSEE acknowledges that the premises are in good order and repair, and accepts the leased premises in its “as is” condition. LESSEE shall, at her own expense and at all times, maintain the premises in good and safe condition, including plate glass, electrical wiring, plumbing and heating installations and any other system or equipment upon the premises and shall surrender the same, at termination hereof, in as good condition as received, normal wear and tear excepted. LESSEE shall be responsible for all repairs required, excepting the roof, exterior walls, and structural foundations, which shall be maintained by LESSOR.
This Court reversed, holding:
It is clear that the responsibility for maintenance of the air-conditioning unit rested squarely on the Lessee, Nora’s. As such, Nora’s is solely responsible for any negligence based upon a faulty or inoperable air conditioning system on Nora’s premises. The record, however, is void of any evidence indicating the specific location where plaintiffs alleged accident occurred. Thus, a question of material fact exists as to whether the accident occurred on Nora’s property or on Days Inn’s property.
The trial court erred in granting Click Corp.’s Motion for Summary Judgment. Accordingly, we reverse the judgment granting Click Corp.’s Motion for Summary Judgment and remand this matter to the trial court for further proceedings.
O’Rourke v. Days Inn New Orleans, 04-1379, p. 3 (La.App. 4 Cir. 6/1/05), 905 So.2d 1171, 1173, writ denied, 05-1705 (La.1/9/06), 918 So.2d 1056.

|3In March, 2006, Click and MCC moved for summary judgment, adding to their previous supporting documentation Ms. O’Rourke’s responses to Request for Admissions of Fact, in which she admitted that (1) the accident took place on May 24, 2001; (2) the accident of May 24, 2001 occurred within the premises known as Nora’s Creole Cafe, and (3) on May 24, 2001, Ms. O’Rourke was an employee of Nora Lewis Dejoie, d/b/a Nora’s Creole Cafe. Click and MCC also filed certified copies of the trial court’s judgment and notice of judgment granting the prior motion for summary judgment and a copy of this Court’s reversing opinion.

In her opposition to the second motion for summary judgment in the trial court, Ms. O’Rourke asserted two claims: (1) the lease agreement is ambiguous, and (2) Click had notice of the air conditioning defect and thus is liable pursuant to La. R.S. 9:3221. Because the opinion of this Court in the prior appeal establishes as the law of the case that the lessee had responsibility for maintenance of the air conditioning unit, the only issue before us is whether Ms. O’Rourke was injured on leased premises. Since the record now establishes without contradiction that she was indeed injured on the leased premises, we affirm the trial court judgment dismissing her suit against click, Inc. with prejudice.

AFFIRMED.

CANNIZZARO, J. Dissents With Reasons.

CANNIZZARO, J.

Dissenting.

Li respectfully dissent from the majority opinion. Although I agree with the majority that it has been established that Ms. O’Rourke was injured on, rather than off of, the leased premises, there is another issue that has not yet been addressed. That is the issue of whether the lessor had notice of the air conditioning defect, which could render the lessor liable under La. R.S. 9:3221.

In her second assignment of error, which is not discussed in the majority opinion, Josephine O’Rourke contends that the lessor is liable to her under La. R.S. 9:3221. Ms. O’Rourke claims that based on the affidavit of an employee of the lessor, the lessor knew that the condition of the air conditioning system for the leased premises was defective. The affidavit of Daniel Myers, III stated that he was an employee of the lessor and that “[a]fter the air conditioning unit at Nora’s Creole Café broke down in about early April, 2001, I was instructed by Day’s Inn [the name under which Click Operating Corporation was doing business] to look at [ Pthe air conditioning system of Nora’s Creole Café to try to determine what needed to be done to repair the air conditioning system.”

The record also contains an affidavit of Ms. O’Rourke. Her affidavit stated that she was employed by Nora’s Creole Café, that several times during the year that she worked for Nora’s Creole Café she observed a person whose name was “Danny” servicing its air conditioning system, and that “[a]fter the air conditioning unit breakdown in early April, 2001, Danny was the only person who came to look at the air conditioning system to try to determine what needed to be done to repair it.”

Based on the foregoing, I think that we should conduct a de novo review of the record to determine whether the affidavits in the record resolve the issue of whether the lessor is liable under La. R.S. 9:3221. Because the majority has not done this, I must respectfully-dissent.

      . It appears that Click operated the hotel and signed the lease with Nora's under the name Days Inn New Orleans,

      . La. R.S. 9:3221 provides:
      Notwithstanding the provisions of Louisiana Civil Code Article 2699, the owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.


author: DIAZ, Justice, EASLEY, Justice,

text:
    Noah Brent CHINN v. STATE of Mississippi.
    No. 2005-KA-02231-SCT.
    Supreme Court of Mississippi.
    June 28, 2007.

      Michael Duane Mitchell, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   DIAZ, Justice,

for the Court.

¶ 1. Noah Brent Chinn was convicted of manslaughter and sentenced to a twenty-year prison term. Finding that the trial court erred in failing to grant a jury instruction on the defendant’s theory of the case, we reverse and remand for a new trial.

Facts

¶ 2. Around 2:00 a.m. on July 31, 2004, Chinn and his wife Shaniqua arrived at the house of Latonsia and Jerry Patterson. According to Latonsia, the Chinns were “arguing and fussing,” and her husband Jerry “got in between them ... to try to see what the problem was.” Shaniqua then jumped into the Chinns’ car and started to drive away. Chinn ran around the back end of the car, and Shaniqua backed the car into a fence. He then attempted to keep his wife from leaving, and during the struggle, Shaniqua was shot in the chest and killed. The Patter-sons were the only two witnesses.

¶ 3. Latonsia testified that she saw Chinn reach inside the car with his right hand. She then saw a flash of light and heard a gunshot, but could not see if Chinn and Shaniqua had been struggling over a gun. Latonsia then saw Chinn holding a gun, which he tossed over the fence. Chinn proceeded to pull his wife out of the car, where she stood up and took one last breath before collapsing on the ground. Chinn then lay on top of her, begging her not to die and yelling for someone to call the police.

¶ 4. Jerry Patterson’s testimony substantially corroborated his wife’s version of events. He also stated that he could not see if the couple was struggling over a gun before it fired. However, Jerry testified that he saw Chinn with both arms inside the car. Jerry also testified that he saw Chinn’s arm jerk when the gun fired. After Shaniqua had been pulled from the car, Jerry heard Chinn saying, “Baby don’t leave me.” According to Jerry, the defendant remained on top of his wife until the police arrived. Both eye witnesses testified that Chinn did not have a gun before he ran to the car.

¶ 5. Sergeants Robert Morris and Ken Williams arrived at the crime scene. Chinn told them that he had thrown the gun over the fence, and the officers found a Larson .380 caliber semi-automatic pistol approximately forty to fifty feet from Shaniqua’s body. The gun’s magazine was located a couple of feet away from the gun.

¶ 6. The gun was registered to the defendant. Sergeant Morris testified that it had a safety switch which had to be compressed upward to enable the gun to fire. He also testified that in order to separate the magazine from the gun, a person would have to press a release at the bottom of the gun’s handle.

¶ 7. Steve Byrd, an expert in the field of firearm evidence examination, testified that the gun was not considered to have a “hair trigger.” A “hair trigger” requires less than two pounds of pressure to fire. He stated that the gun in question required seven pounds of pressure to fire. On cross-examination, Byrd admitted that the gun could have fired if two people were struggling over it.

¶ 8. The pathologist, Dr. Steven Hayne, testified that Shaniqua died from a single gunshot wound to her upper chest. Testing of her blood and urine revealed a blood alcohol content between .18 and .20 percent. Dr. Hayne also stated that Shaniqua had been exposed to marijuana prior to her death.

¶ 9. Finally, Jamie Bush, a fingerprint expert, testified that the firearm bore no identifiable fingerprints.

¶ 10. The defense rested without calling any witnesses.

¶ 11. On appeal, Chinn alleges that the trial court erred in refusing two of his proposed jury instructions because they were required to present his theory of the ease that the shooting was an accident. The State asserts that the trial court correctly refused the instructions as Chinn offered no proof that the shooting was an accident.

Standard of Review

¶ 12. On review, “[j]ury instructions are to be read together and taken as a whole with no one instruction taken out of context.” Austin v. State, 784 So.2d 186, 192 (Miss.2001). “A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, or is without foundation in the evidence.” Howell v. State, 860 So.2d 704, 745 (Miss.2003) (citing Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). “We will not find reversible error “where the instructions actually given, when read together as a whole, fairly announce the law of the case and create no injustice.’ ” Adkins v. Sanders, 871 So.2d 732, 736 (Miss.2004) (quoting Coleman v. State, 697 So.2d 777, 782 (Miss.1997)).

¶ 13. Furthermore, every accused has a fundamental right to have her theory of the case presented to a jury, even if the evidence is minimal. We have held that “[i]t is, of course, an absolute right of an accused to have every lawful defense he asserts, even though based upon meager evidence and highly unlikely, to be submitted as a factual issue to be determined by the jury under proper instruction of the court. This Court will never permit an accused to be denied this fundamental right.” O’Bryant v. State, 530 So.2d 129, 133 (Miss.1988) (citing Ward v. State, 479 So.2d 713 (Miss.1985); Lancaster v. State, 472 So.2d 363 (Miss.1985); Pierce v. State, 289 So.2d 901 (Miss.1974)). This Court recently has stated that “[w]e greatly value the right of a defendant to present his theory of the case and ‘where the defendant’s proffered instruction has an evidentiary basis, properly states the law, and is the only instruction presenting his theory of the case, refusal to grant it constitutes reversible error.’ ” Phillipson v. State, 943 So.2d 670, 671-72 (Miss.2006) (citing Adams v. State, 772 So.2d 1010, 1016 (Miss.2000)).

Discussion

¶ 14. First, we must determine whether Chinn’s proposed instruction properly stated the law. Miss.Code Ann. § 97-3-17 (Rev.2006) provides in relevant part:

The killing of any human being by the act, procurement, or omission of another shall be excusable:
(a) When committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent;
(b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation;

At trial, Chinn offered proper instructions, which tracked the language contained in subsections (a) and (b) as cited above.

¶ 15. Second, we examine whether the given jury instructions covered Chinn’s theory of the case. The State gave two instructions setting forth the elements of both murder and manslaughter. While both instructed the jury concerning self-defense, neither included an exception for an accidental shooting under Miss.Code Ann. § 97-8-17. Therefore, Chinn’s accident theory of the case was not sufficiently covered by other instructions. See Adkins, 871 So.2d at 736.

¶ 16. Finally, we look at whether there was sufficient foundation in the evidence for an accident instruction. The State is incorrect in its assertion that there was no evidentiary foundation supporting the defendant’s accident theory. Even though Chinn did not present evidence on his behalf, sufficient evidence was elicited from the State’s presentation of the case to support the defendant’s theory. Neither of the two eyewitnesses could see inside the vehicle, and both testified that Chinn did not have a gun before he reached into the car. They also testified that after Mrs. Chinn was shot, the defendant tried to resuscitate her, pleading with her not to die.

Defense Counsel: After Ms. Chinn was on the ground what did you see?
Mrs. Patterson: I saw him laying on top of her. And he was begging her not to die, please say something. He was pumping her chest ... he was trying to save her.
Defense Counsel: Was he crying?
Mrs. Patterson: Yes, sir.
Defense Counsel: Okay. Was there any other statements coming from his mouth that you recall?
Mrs. Patterson: Just, Shaniqua, please don’t die.
Mr. Patterson: Shaniqua was already out on the ground when I got around there. Noah was on top of her crying. He was saying, baby, don’t leave me. That’s when I got on the phone and started talking with the dispatch. He stayed over with Shaniqua until the cops got there.

According to both witnesses, Chinn lay on top of his wife, crying, until the police arrived. Other than the foregoing, Chinn made no other statements at the scene after the shot was fired.

¶ 17. The physical evidence, although minimal, also could support Chinn’s theory that the shooting was an accident. Sergeant Morris testified that the weapon used was the type that automatically feeds another bullet into the chamber after being fired, so that it is instantly “ready to fire again,” and later agreed on cross-examination that Shaniqua Chinn was found with only one gunshot wound. The State’s expert witness, Steve Byrd, testified on cross-examination that although the gun in question was not classified as a “hair trigger,” it was possible that the seven pounds of pressure needed to fire the gun could have been exerted by Chinn pulling the gun in one direction and Shani-qua pulling it in another. Finally, the fingerprints on the gun could not be identified as belonging to either Chinn or his wife. This evidence, along with the eyewitness testimony of the facts surrounding the shooting, could lead reasonable jurors to conclude that this was indeed an accidental shooting.

¶ 18. Chinn was entitled to have his theory of the case submitted to the jury under proper instruction of the court. Denial of this fundamental right is grounds for reversal. As this issue is dispositive, there is no need to discuss Chinn’s other claims on appeal.

¶ 19. Accordingly, this case is reversed and remanded for a new trial consistent with this opinion.

¶ 20. REVERSED AND REMANDED.

WALLER, P.J., GRAVES, DICKINSON AND LAMAR, JJ., CONCUR. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, C.J., CARLSON AND RANDOLPH, JJ.

EASLEY, Justice,

dissenting.

¶21. Based on the evidence actually contained in the record, Noah Brent Chinn’s conviction and sentence should be affirmed. Not only has the majority muddled the actual facts in the record with its speculation and hypothesizing, the majority also has completely muddled the law in its application to the facts advanced in its opinion. Today’s decision should be of interest to every attorney who practices criminal law in Mississippi, as the majority now vastly opens the door for when an accident instruction is required. Accordingly, based on the evidence presented in this case and the current law, I am compelled to dissent with the direction the majority now takes.

¶ 22. Chinn contends that the trial court erred in refusing proposed jury instructions D-3 and D-5, arguing that the instructions were required to be given because they set forth his theory that the shooting was an accident. The State asserts that the trial court correctly refused the instructions because there was no proof that the shooting was an accident; Chinn admits in his brief that the evidence supporting a jury instruction on the accidental discharge of the gun “was admittedly thin.” However, the record reveals that there is no evidence that demonstrated that the shooting was accidental. While Chinn admittedly was not required to present any evidence or testify in order to be entitled to an accident instruction, I note that the defense rested without calling any witnesses and Chinn did not testify at trial At the very least, Chinn was required to point out sufficient evidence presented in the State’s case-in-chief which would justify the trial court’s grant of an accident instruction.

¶ 23. A detailed analysis of the facts of this case demonstrates that no evidence was presented supporting an accidental jury instruction. The State called Laton-sia Patterson, a friend of Chinn and the decedent, Shaniqua, to testify. Shaniqua and Chinn, collectively “the Chinns,” came to Latonsia’s house at about 2:00 a.m. on July 31, 2004. The Chinns were “arguing and fussing.” According to Latonsia’s testimony, her husband, Jerry Patterson, opened the door and tried to separate the Chinns from each other. Shaniqua jumped into the Chinns’ car; she cranked it up; and she started to leave. Chinn then ran around the back end of the car, causing Shaniqua to drive through the fence. Chinn tried to stop Shaniqua from leaving.

¶24. Latonsia testified that she saw Chinn reach inside the car with his right hand. She then said she saw a flash of light and heard a gunshot. Latonsia could not see if Chinn and Shaniqua had been struggling over a gun. She saw that Chinn was holding a gun, which he later tossed over the fence. After he tossed the gun over the fence, he went back to Shani-qua and pulled her out of the car. Shani-qua stood up and took one deep breath as she fell. Latonsia testified that Shaniqua appeared to have a “hole in her chest.” Chinn lay on top of her, begging her not to die. After Chinn tossed the gun over the fence, he yelled to call the police. Laton-sia testified on redirect that she did not hear Chinn tell Shaniqua that it was an accident.

¶25. Latonsia’s husband, Jerry, testified. Jerry testified that the Chinns arrived at his house at approximately 1:45 a.m. on the morning of July 31, 2004. Jerry corroborated Latonsia’s testimony regarding the Chinns’ arrival, their arguing, and Shaniqua’s attempt to leave. When Jerry pulled Chinn back to separate him from Shaniqua, Shaniqua made a run for the Chinns’ car. Shaniqua got inside the car and cranked it. As she started to leave, Chinn then ran toward the car going behind the car. Shaniqua drove into the fence as she tried to back up in order to leave. Chinn reached his arm inside the car’s window on the driver’s side. Jerry testified that he saw Chinn with both his arms inside the car. Jerry testified that he could not see any struggle over a gun before it fired.

¶ 26. Jerry testified that he saw Chinn’s arm “come up” and then “heard a shot.” He stated that Chinn’s arm jerked when the gun fired. Jerry testified that his wife had a better view of the Chinns than he had. By the time Jerry could reach Shaniqua, Chinn had already pulled her from the car and was on top of her crying. He heard Chinn saying, “Baby don’t leave me.” Chinn remained on top of her until the police arrived and secured the scene.

¶ 27. Sergeants Robert Morris and Ken Williams of the Laurel Police Department worked the crime scene. Chinn informed the police that the gun had been thrown over the fence. Sergeant Williams located the gun, a Larson .380 caliber semi-automatic, approximately forty to fifty feet from Shaniqua’s body. Sergeant Morris testified that he processed the scene and secured the gun. The gun’s clip or magazine was located a couple of feet away from the gun.

¶ 28. Sergeant Morris testified the gun had a safety switch which had to be compressed upward to enable the gun to fire. Sergeant Morris testified that in order to make the clip come out of the gun, an individual would have to press a release at the bottom of the gun’s handle. Sergeant Morris demonstrated to the jury how the safety switch operated. He further demonstrated that the gun would not fire with the safety switch turned on, pulling the trigger. Sergeant Morris had the Bureau of Alcohol, Tobacco, and Firearms (ATF) check the gun’s registration, revealing that the gun was registered to Chinn.

¶29. Steve Byrd of the Mississippi Crime Lab, an expert in the field of firearm evidence examination, testified that the gun was not considered to have a “hair trigger.” Byrd was called as an expert to testify as to trigger pressure of the gun in question. Byrd stated that the pressure is measured by using trigger pull weights, which are increased in amount until the gun discharges. The gun in question required seven pounds of pressure to fire. Byrd further stated that a gun requiring less than two pounds of pressure to fire would be classified as a gun with a “hair trigger.” Therefore, the gun that Byrd examined would not be classified as having a “hair trigger.” Byrd further testified that the federal government does not have a standard requirement for the amount of force necessary to fire a handgun.

¶ 30. Dr. Steven Hayne, pathologist, testified that Shaniqua died from a single gunshot wound to her upper chest. He stated that her exact cause of death was internal bleeding. The blood alcohol content level from testing Shaniqua’s urine revealed that she had BAC level of .20 percent. Shaniqua’s blood specimen revealed that her BAC level was .18 percent. Dr. Hayne further stated that her fluids showed that she had been exposed to marijuana prior to her death.

¶ 31. Jamie Bush, an expert in latent prints employed by the Mississippi Crime Lab, testified that he examined the gun for fingerprints. However, the gun did not have any fingerprints with enough ridge detail for him to identify them. Bush testified that in only approximately eight to ten percent of firearms he examined did he find identifiable fingerprints.

¶ 32. The following exchange as to jury instruction D-3 transpired:

State: This is an accident instruction. Again, there’s no evidence that justifies giving it....
Defense: [T]he State must prove that each — the State must prove that it was not an accident. And we feel like that the accident instructions would instruct the jury to that effect.
State: [T]he State doesn’t have to prove in a murder case that it was not an accident. We have to meet the elements of murder. If they want to carry that burden, they can go forward. And they hadn’t presented a scintilla — ....
The Court: [T]his time it will be refused because there’s no evidence to that effect in this case.

¶ 33. As to jury instruction D-5, the record reveals the following exchange:

The Court: There’s no evidence in this case that it was an accident, so therefore, the Court can’t allow the jury to infer from any of the- — there’s no evidence in this case that the jury can even infer that it was an accident.
Defense: Well, I think, Your Honor, with all due respect, the actions of the defendant after he pulled her out of the car trying to bring her back— trying to resuscitate her, which is un-contradicted, his emotional state and everything, it goes to show that he was trying to save her. And I think that that [sic] is absolutely an easy inference for the jury to make that this was an accident from that type of evidence.

The Court: Be overruled. Be refused. (Emphasis added). As stated above, Chinn’s trial counsel discussed Chinn’s efforts to revive Shaniqua after she was shot only when objecting to refusal of the jury instruction.

¶ 34. The majority focuses on Byrd’s testimony. When the record is reviewed, Byrd actually testified to the defense’s hypothetical questions. Byrd testified as follows:

Q: Now, let me ask you this, if there were an opposite force, let’s say that you were holding that gun and I was holding that gun with my finger on the trigger and you were pulling one way and I was pulling the other way, would the force then go down to three and a half pounds to pull the trigger, assuming that we were both exerting the same force on the firearm?
A: It would take you seven pounds of pressure to that trigger in a rearward motion for it to discharge. You could either pull that trigger yourself and or you could hold that gun and push that trigger. Seven pounds is going to be seven pounds of pressure. It’s moving the trigger to the rear no matter which direction you move it from. Now, if I could control three and a half pounds and you could control three and a half pounds, together we’ve got seven pounds. As long as that seven pounds of pressure is going towards that trigger and forcing that trigger to the rear, yes, it would discharge.
Q: So[,] if you were pulling the three and a half and I was pulling the three and a half in opposite directions directly affecting that trigger, it would go off if it equaled greater than seven pounds?
A: If you are pulling in opposite directions!;,] it’s not going to move three and a half pounds.
Q: I’m saying if I takes [sic] seven— you just basically testified that if you had three and a half pounds controlled going one way and I had three and a half pounds controlled going the other way, that together we’ve got seven ponds [sic] and that would cause the trigger to go off?
A: No [sic] going in opposite directions. If I were pulling three and a half pounds and you were pushing three and a half pounds in the same direction[,] it’s the same direction. It’s still seven pounds, not in opposite directions, because three and a half pounds in opposite directions gives you nothing.
Q: I want to know — do you have that gun or is it up here?
A: It’s right there.
Q: All right. It’s not going to go off. We all know that. If I’m holding this gun like this and you pull on it that way and my finger is right there or if it’s caught on something or if there is a mechanism, a finger, anything inside that trigger mechanism right there and that guns [sic] gets pulled this way by you, that’s necessarily going to cause me to put some pounds of pressure on this trigger?
A: That’s a different question. And, yes, that is possible.

¶ 35. From the testimony stated above, Chinn contends that Byrd testified that the gun could have been discharged accidentally. However, Byrd did not testify that the gun was accidentally discharged. Byrd simply answered a hypothetical question, which was not based on any facts in the record or testified to by any witness in the case. No testimony from any witness was presented at trial that Chinn and Shaniqua both pulled on the gun’s trigger. The two eyewitnesses, the Pattersons, could not see the gun before it was fired from where they were standing. Only two people, Chinn and Shaniqua, could have seen the gun before it was fired, and Shan-iqua died at the scene from the gun shot. Further, no physical evidence supported the hypothetical questions.

¶ 36. Even on appeal, Chinn does not specify any other testimony or evidence in support of his theory that this was an accidental shooting. The only evidence that we have is that Chinn and Shaniqua came to the Pattersons’ home, fighting. When Jerry Patterson tried to talk to Chinn, Shaniqua ran to the Chinns’ car and tried to leave. As she backed away, Chinn reached into the car, and Shaniqua was shot. The Pattersons testified that Shaniqua ran to the car and attempted to back away when Chinn ran towards the car and reached in, causing Shaniqua to run over their fence. They testified that a gun fired, and Chinn then tossed the gun over a fence before the police arrived at the scene.

¶ 37. The jury convicted Chinn of the manslaughter of his wife, Shaniqua. Miss. Code Ann. § 97-3-35 (Rev.2006) defines manslaughter as follows:

The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.

(Emphasis added).

¶ 38. “This Court does not review jury instructions in isolation.” Adkins v. Sanders, 871 So.2d 732, 736 (Miss.2004) (citing Jackson v. Daley, 739 So.2d 1031, 1037 (Miss.1999)). “Jury instructions are to be read together and taken as a whole with no one instruction taken out of context.” Austin v. State, 784 So.2d 186, 192 (Miss.2001) (citing Humphrey v. State, 759 So.2d 368, 380 (Miss.2000)). “A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Howell v. State, 860 So.2d 704, 745 (Miss.2003) (citing Heidel v. State, 587 So.2d 835, 842 (Miss.1991)) (emphasis added); see Adkins, 871 So.2d at 740 (“There is insufficient evidence to support this instruction. In fact, the overwhelming evidence ... is just the opposite.”) (emphasis added); see also Austin, 784 So.2d at 193. “We will not find reversible error ‘where the instructions actually given, when read together as a whole, fairly announce the law of the case and create no injustice.’ ” Adkins, 871 So.2d at 736 (quoting Coleman v. State, 697 So.2d 777, 782 (Miss.1997)).

¶ 39. The Court of Appeals in Robinson v. State, 726 So.2d 189, 194 (Miss.App.1998), correctly affirmed the trial court’s denial of an accident instruction where the evidence did not support the instruction. The court provided instructive languáge that is helpful when reviewing the trial court’s denial of an accident instruction, stating:

Without further evidentiary basis to support Robinson’s theories of self-defense and accident, the instructions were properly denied. Simply saying that you shot in self defense or that the shooting was an accident in and of itself does not provide a defendant with an automatic right to instructions thereon. The defendant’s testimony or other evidence must provide an evidentiary basis for the same. There was none here.

Id. at 194 (emphasis added).

¶ 40. I find that the trial court did not err in refusing jury instructions D-3 and D-5. Since the record does not reveal that there was sufficient evidence to support a theory that the gun discharged accidentally, the trial court’s refusal of jury instructions D-3 and D-5 was proper and should be affirmed.

¶ 41. For the foregoing reasons, I find that the trial court did not commit any reversible error. Accordingly, I would affirm the judgment of the Circuit Court of the Second District of Jones County, Mississippi.

SMITH, C. J., CARLSON AND RANDOLPH, JJ„ JOIN THIS OPINION.

      . Sergeant Morris was a criminal investigator on July 31, 2004.


author: IRVING, J.,

text:
    Ronnie WARD, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00656-COA.
    Court of Appeals of Mississippi.
    Dec. 5, 2006.
    Rehearing Denied April 10, 2007.

      Alsee McDaniel, Indianola, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. A Sunflower County jury convicted Ronnie Ward of possession of marihuana in an amount greater than one ounce but less than a kilogram, while possessing a firearm. The Sunflower County Circuit Court sentenced him to a term of six years in the custody of the Mississippi Department of Corrections and ordered him to pay a fine of $6,000.

¶ 2. Ward appeals and challenges the legality and execution of the search warrant and the refusal of the trial court to admit certain evidence. Ward also asserts that the trial court erred in giving certain jury instructions.

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

FACTS

¶ 4. On January 5, 2004, law enforcement officials, acting on street information and using a confidential informant, arranged a purchase of marihuana from Ward. Sometime during the early part of the following day, the officials presented information regarding the confidential buy, along with other information, to a justice court judge and obtained a search warrant for Ward’s residence. After getting the warrant, agents of the Central Delta Drug Task Force (CDDTF) and other law enforcement officials executed the warrant around 8:45 p.m. while Ward was at home preparing to have dinner with his wife and child. The search uncovered marihuana, scales, baggies, scissors, and a plate with marihuana residue. The officers also found marihuana cigarettes (“roaches”) in a jacket owned by Ward. Additionally, the search revealed numerous guns, two of which were found in the same room as the marihuana. The scales, baggies, scissors, and plate were never sent to the Mississippi Crime Lab for testing; however, the residue collected from the plate and the marihuana were sent to the lab one month after the search. Ward was arrested and convicted of possession of marihuana in an amount greater than one ounce but less than a kilogram, while possessing a firearm.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Issuance and Execution of Search Warrant

¶ 5. In this issue, Ward argues that the affidavit standing alone does not support a finding that probable cause existed for the issuance of a search warrant for his home. He relies on State v. Woods, 866 So.2d 422, 424(¶ 3) (Miss.2003), in support of his argument. He further argues that the State’s failure to offer any corroborating evidence to show that its confidential informant is reliable and truthful violated his constitutional rights under Article 3, Section 23 of the Mississippi Constitution. We look to the relevant case law.

¶ 6. In Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court established the totality of the circumstances approach as the standard for determining whether probable cause exists for the issuance of a search warrant based on information provided by an informant:

For all these reasons, we conclude that it is wiser to abandon the “two-pronged test” established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations .... The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed.... We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli.

¶ 7. In Lee v. State, 435 So.2d 674, 676 (Miss.1983), the Mississippi Supreme Court, without explicitly adopting the totality of the circumstances test promulgated in Gates, applied it and found that probable cause existed for the issuance of a search warrant. The court found that the judge who issued the warrant was justified in doing so based on the fact that the confidential informant had given reliable information in the past, the informant’s information was based on personal knowledge, and the law enforcement officers corroborated the information provided by the informant. Id. at 676-77.

¶ 8. Two years later, in Jones v. State, 481 So.2d 798, 800 (Miss.1985), the Mississippi Supreme Court explicitly stated that, in Lee, it adopted the “totality of the circumstances” test enunciated in Gates. The court also held that, based on Gates and Lee, it was no longer necessary for the police officers to determine through independent corroboration the accuracy of the informant’s information. Id. Therefore, it is well-settled law in this state that judges apply a “totality of the circumstances” test in making probable cause determinations for the issuance of search warrants. “[W]e look ‘both to the facts and circumstances set forth in the affidavit for the search warrant as well [as] the sworn oral testimony presented to the issuing magistrate.’ ” Woods, 866 So.2d at 426(¶ 12) (quoting Petti v. State, 666 So.2d 754, 758 (Miss.1995)).

¶ 9. We now turn to the facts undergirding the issuance of the search warrant in the case before us. The record is devoid of a statement of the underlying facts and circumstances. Appellate counsel failed to ensure that the record was supplemented with the statement, even after we allowed a tardy supplementation of the record. Therefore, we are unable to review Ward’s argument regarding the adequacy of the affidavit supporting the application for search warrant. It is the responsibility of the appellant to furnish the court with a record which is adequate to review the issues presented. Williams v. State, 522 So.2d 201, 209 (Miss.1988).

¶ 10. The procedural bar notwithstanding and assuming we were to accept the statement of underlying facts and circumstances contained in Ward’s reply brief, we would find no merit to this issue. The relevant portion of the statement in Ward’s reply brief is as follows:

Affiant, being a duly sworn officer of the State of Mississippi, states the following: On January 5, 2004, Affiant was contacted by a confidential reliable source from the Indianola area located in Sunflower County, Mississippi. Said confidential source provided Affiant with information that a black male subject known to said source as Ronnie Ward was dealing a quantity of marijuana from his residence. This residence being located at 413 Lincoln Street, Indianola, Sunflower County, Mississippi. This information has been able to be verified by agents of the Central Delta Drug Task Force. Agents, along with confidential source # 539 made a controlled purchase of alleged marijuana from the residence located at 413 Lincoln Street, Indianola, Sunflower County, Mississippi.
Based on information from investigations conducted by the Central Delta Drug Task Force this residence is a distribution point for persons to come and purchase quantities of marijuana.

¶ 11. The controlled buy took place on January 5, and the application for the search warrant was made on January 6. Agent Kori Hamilton of CDDTF submitted the application for the search warrant. When the application was submitted, Agent Hamilton had verified via a controlled buy that marihuana was being sold out of Ward’s residence. Hamilton testified that the CDDTF had had the home under surveillance for quite some time and had observed individuals coming and going from the home, although he did not testify as to the times of day or night this occurred.

¶ 12. The search warrant, which was issued by former Circuit Judge Howard Q. Davis, states, among other things, that “[t]his court having examined and considered said affidavit, and also having heard and considered evidence in support thereof from the affiants named therein does find that probable cause for the issuance of a search warrant does exist.” (emphasis added). We note that counsel for Ward never questioned Agent Hamilton regarding any additional information that Agent Hamilton may have given Judge Davis when Agent Hamilton made application for the warrant.

¶ 13. Ward argues that there was “no corroborating evidence to show that the informant was truthful and reliable” or that the controlled buy was in fact made. As reflected in the underlying statement, Agent Hamilton swore that the buy took place and that a confidential reliable source was utilized. Ward offered no evidence to the trial court, and points this Court to none, which would tend to prove that Hamilton’s affidavit was false. Additionally, we are not privy to what additional information Hamilton may have provided Judge Davis, as counsel for Ward did not elicit such information. Therefore, we find no merit to this issue.

2. Refusal of Evidence

¶ 14. In this issue, Ward argues that the trial court erred in not allowing certain evidence which was relevant to his assertion that he was entrapped. Specifically, Ward argues that he should have been allowed to offer evidence regarding past misconduct of the CDDTF in handling drug seizures and evidence regarding the CDDTF’s motivation for investigating him. At trial, Ward testified that the marihuana which was found in his home was not there before the CDDTF agents searched the house. Ward therefore contends he was entrapped. As we explain below, entrapment is not planting evidence, which is what Ward contends really happened.

¶ 15. “Entrapment is an affirmative defense. The defendant must go forward with the proof to establish this defense, and if he does so, the state has the burden of proof on that issue.” Tribbett v. State, 394 So.2d 878, 881 (Miss.1981). In Moore v. State, 534 So.2d 557, 558 (Miss.1988), the Mississippi Supreme Court stated: “The usual entrapment case which arises under Mississippi law involves a confidential informant or police officer who originates the sale of contraband by supplying it to the accused, who then, acting in complicity with the confidential informant or police officer, sells or disposes of it to another officer or person who initiates the prosecution.” The facts in this case do not meet the typical situation in which entrapment arises. In Moore, the court discussed State v. Talbot, 71 N.J. 160, 364 A.2d 9 (1976) in which the New Jersey Supreme Court observed that, “to have entrapment as a matter of law, the prosecution must not only provide the illegal contraband, but also arrange the subsequent sale of the contraband by the defendant to another agent of the state.” Moore, 534 So.2d at 558.

¶ 16. Ward does not contend that he sold any marihuana, nor does he admit that he possessed any. Therefore, we cannot accept his argument that he was entrapped. Ward was not indicted for the marihuana which he sold to the confidential informant, and as we understand his argument, he does not contend that he was entrapped as to that sale. Rather, Ward is alleging that the marihuana supporting his possession conviction was planted in his home. To support his argument, Ward points out that he and his wife were removed to a different part of the house. He also offers the officers’ testimony that it was “possible” that they were alone together in the room where the marihuana was found. Agent Hamilton also testified that they did not plant the marihuana in Ward’s bedroom. This issue is without merit.

S. Jury Instructions

¶ 17. In his final issue, Ward argues that the trial court erred in giving jury instructions regarding the enhanced penalty for possession of marihuana while in possession of a firearm.

¶ 18. In Pool v. State, 483 So.2d 331, 336 (Miss.1986) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)), the Mississippi Supreme Court held that “[t]here must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Ward admitted to owning the firearms, and there is nothing in the record to dispute that he intentionally and consciously possessed the firearms. However, Ward relies on the fact that the firearms were antiques, were inoperable, and were unloaded as the basis for his argument. Mississippi Code Annotated section 41-29-152(1) (Supp.2000), provides:

Any person who violates Section 41-29-313 or who violates Section 41-29-139 with reference to a controlled substance listed in Schedule I, II, III, IV or V as set out in Sections 41-29-113 through 41-29-121, Mississippi Code of 1972, inclusive, and has in his possession any firearm, either at the time of the commission of the offense or at the time any arrest is made, may be punished by a fine up to twice that authorized by Section 41-29-139 or 41-29-313, or by a term of imprisonment or confinement up to twice that authorized by Section 41-29-139 or 41-29-313, or both.

¶ 19. Ward also relies on language in United States v. Eastland, 989 F.2d 760, 770 (5th Cir.1993): “Weapon possession is established if the government proves by a preponderance of the evidence ‘that a temporal and spatial relation existed between the weapons, the drug trafficking activity, and the defendant.’ ” Ward argues that there was no “temporal or spatial relation” between the firearms in his possession and his alleged drug activity.

¶ 20. In Eastland, Tom Wilkinson Eastland and Cullen Reed Harris were charged with conspiracy to manufacture more than 1000 grams of methamphetamine. Id. at 764. As part of the investigation which led to the charges, law enforcement officials found twelve firearms at Eastland’s home. Id. at 763. They also found four firearms in a trailer on property owned by Harris. Id. at 770. Eastland and Harris argued on appeal, among other things, that the trial court erred in allowing an enhancement of their sentence because of possession of the weapons. Id. at 769. In rejecting their argument, the court quoted approvingly from the comment to the enhancement statute at issue that “the enhancement factor ‘reflects the increased danger of violence when drug traffickers possess weapons,’ and should be applied ‘if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.’ ” Id. at 770. The court, quoting United States v. Hooten, 942 F.2d 878, 882 (5th Cir.1991), stated that “ ‘[generally the government must provide evidence that the weapon was found in the same location where drugs or drug paraphernalia are stored or where part of the transaction occurred.’ ” Eastland, 989 F.2d at 770.

¶ 21. In our case, two of the firearms were found in the same room where the marihuana was found. Additionally, some marihuana cigarettes were found in the pocket of a jacket owned by Ward. There also was drug paraphernalia found in the room where the guns were found. This evidence is sufficient to show a nexus between the drug activity and the firearms.

¶ 22. Ward next argues that he should not be subject to the enhanced penalty because some of the firearms needed to be oiled and all of the firearms needed to be loaded before they would fire. The fact that the firearms were unloaded and may have needed oiling does not preclude Ward from receiving an enhanced sentence under Mississippi Code Annotated section 41-29-152(2) (Supp.2000) if he possessed the firearms. The statute makes no such distinction. Section 41-29-152(2) defines a firearm as “any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” Ward offered no proof that the firearms were not designed to expel a projectile by the action of an explosive or that they could not be readily converted to do so. The firearms were found in the room where the marihuana was found. Clearly, Ward had at least constructive possession of the firearms at the same time of his possession of the marihuana, notwithstanding his arguments to the contrary.

¶ 23. This Court has held that “constructive possession may be shown by establishing that the drug involved was subject due [sic] to [appellant’s] dominion or control.” Thompson v. State, 800 So.2d 1249, 1252(¶ 11) (Miss.Ct.App.2001) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)). Proximity is usually an essential element, but a conviction requires other incriminating circumstances. Id.

¶ 24. As stated above, the firearms, marihuana, and other paraphernalia related to drug dealing were seized from Ward’s home. It has long been established in Mississippi that “one who is the owner in possession of the premises ... is presumed to be in constructive possession of the articles found in or on the property possessed.” Hamburg v. State, 248 So.2d 430, 432 (Miss.1971). However, this presumption is rebuttable, and Ward offered no credible evidence to rebut the presumption. Agents Hamilton and Jerry Hawkins and officer Edrick Hall all testified that two of the guns were found under a bed in the same room in which the marihuana was discovered. Thus, we find no basis for concluding that the jury should not have been instructed on the enhancement statute.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY OF CONVICTION OF POSSESSION OF MORE THAN ONE OUNCE BUT LESS THAN ONE KILOGRAM OF MARIHUANA, WHILE IN POSSESSION OF A FIREARM, AND SENTENCE OF SIX YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $6,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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

      . Article 3, Section 23 provides, “The people shall be secure in their persons, houses, and possessions from unreasonable seizure or search and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.”

      . A copy of the "underlying facts and circumstances” which was submitted to the issuing judge was not included in the initial record submitted in this appeal. Therefore, we granted Ward’s motion to supplement the record to include it. We received the supplementation, but it does not contain a copy of the statement of underlying facts and circumstances which was attached to the affidavit for the search warrant. However, in Ward’s reply brief, he attached a copy of a document entitled "Underlying Facts and Circumstances.” The top of the document contains a notation that it was faxed from the Washington County District Attorney’s Office on July 7, 2006. Documents included in briefs are not part of the record.