text:
    Shun Kenshay JANUARY, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01707-COA.
    Court of Appeals of Mississippi.
    April 25, 2006.

      William R. Labarre, Hollandale, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On the night of January 17, 2004, Neal and Sherry Haley were entertaining several couples in their home. Kim McTeer, Sherry’s sister, and her husband Lee were present, along with Matthew Azlin and his wife, Karyn. While the couples were inside eating dinner, Sherry looked out the window and saw that the cab of Lee’s truck was illuminated. Kim noticed the light as well, and from the light of the truck, she saw a black male sitting in the passenger’s seat. Kim told the others at the table that there was a man in the truck, and everyone proceeded outside to investigate. When they made it to the truck, the door was ajar and the glove compartment was open, but the man was no longer inside the truck. Neal retrieved a flashlight from his house, and when he flashed the light in his neighbor’s bushes he saw Shun Kenshay January hiding by his neighbor’s truck. As Neal and Lee approached January, January first moved deeper into the neighbor’s carport and then tried to run from the carport, at which point the men apprehended him. Nothing was reported missing from the truck.

¶ 2. January was convicted of burglary of an automobile and sentenced to serve seven years in the custody of the Mississippi Department of Corrections. It is from this conviction that January appeals, arguing the following points of error: (1) the trial court erred in allowing testimony regarding a prior, unrelated incident involving January, (2) the trial court erred in denying January’s motion for a mistrial, and (3) the cumulative errors warrant reversal. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 3. This Court reviews the admission and the exclusion of evidence under the abuse of discretion standard. Tate v. State, 912 So.2d 919, 924(¶ 9) (Miss. 2005). Similarly, a trial court will not be reversed for failing to grant a motion for a mistrial unless the court has abused its discretion. Pulphus v. State, 782 So.2d 1220, 1223(¶ 10) (Miss.2001).

I. DID THE TRIAL COURT ERR IN ALLOWING TESTIMONY REGARDING JANUARY’S PRESENCE IN THE AREA PRIOR TO THE CRIME?

¶ 4. Officer Jenkins of the Green-ville Police Department responded to the call from the Haleys’ house once January was apprehended. He testified that he immediately recognized January, because he had seen January twenty minutes earlier about three miles from the Haleys’ house. January’s car was parked with its hood raised, on the wrong side of the road, approximately a quarter of a block from a house. Officer Jenkins testified that January was walking around the house “peeking in car windows.”

¶ 5. Officer Jenkins exited his car and approached January, and January told him that he did not take anything from the car. Officer Jenkins patted January down and inspected the area, but nothing else was amiss. Officer Jenkins testified that he told January that “he knew better than that” and that he should go home and not let Officer Jenkins “catch him out there trying to break into any more cars.” According to Officer Jenkins, January’s response was, “Okay, I’m going home.”

¶ 6. Upon seeing January at the Haleys’ house, Officer Jenkins said, “Shun, I just talked to you ... what are you doing?” January replied that he had not taken anything out of the truck.

¶ 7. Prior to trial, January filed a motion in limine to suppress testimony regarding this incident, and the court ruled that, while it would not allow the testimony if the incident had occurred a week prior to the arrest, it would allow the testimony if the evidence at trial showed that the incident occurred reasonably close to the time the burglary occurred at the Haleys’ home. The court reasoned, “I think under the Rules the State is allowed to show motive, intent, plan, design, which I would think that would certainly go to that ... ”.

¶ 8. Mississippi Rule of Evidence 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶ 9. Rule 404(b) does not operate in isolation. Regarding its application our supreme court has held that:

[w]here proof of other crimes or acts ... [are] offered into evidence pursuant to Rule 404(b), it is still subjected to the requirement that evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

Flowers v. State, 773 So.2d 309, 318(¶25) (Miss.2000) (citing M.R.E. 403). Furthermore, Rule 403 is an “ultimate filter through which all otherwise admissible evidence must pass.” Jenkins v. State, 507 So.2d 89, 93 (Miss.1987). Thus, prior to admitting Officer Jenkin’s testimony that he stopped January three miles from the Haleys’ neighborhood as he peeked in car windows twenty minutes prior to his arrest, the trial court should have balanced the probative value of the testimony with the possibility that the testimony would prejudice the defense.

¶ 10. On appeal, January argues that the court committed reversible error in failing to conduct a Rule 403 balancing test on the record. However, such a failure has previously been held as harmless error. See McKee v. State, 791 So.2d 804, 810(¶ 23) (Miss.2001); Sheppard v. State, 910 So.2d 1182, 1187(¶14) (Miss.Ct.App.2005); Brink v. State, 888 So.2d 437, 451(¶ 42) (Miss.Ct.App.2004). “An error is harmless when it is apparent on the face of the record that a fair-minded jury could have arrived at no verdict other than that of guilty.” McKee, 791 So.2d at 810(¶ 24) (citing Floyd v. City of Crystal Springs, 749 So.2d 110, 120 (Miss.1999)). “Where the prejudice from an erroneous admission of evidence dims in comparison to other overwhelming evidence, this Court has refused to reverse.” Carter v. State, 722 So.2d 1258, 1262(¶ 14) (Miss.1998).

¶ 11. In the case sub judice, the evidence of January’s guilt was overwhelming as he was spotted inside Lee’s truck and he was discovered immediately thereafter hiding in the Haleys’ neighbor’s dark carport. Furthermore, after Lee, Matt and Neal apprehended him, January told the men, “Y’all got me. Y’all caught me ... I didn’t get anything out of your truck .... y’all got to let me go, because I didn’t get anything out of the truck.” Additionally, the court gave a limiting instruction regarding the testimony to the effect that the testimony may be considered “solely as proof of motive, intent, absence of mistake or accident.” We find no merit to this issue.

II. DID THE TRIAL COURT ERR IN DENYING JANUARY’S MOTION FOR A MISTRIAL?

¶ 12. We review the denial of a motion for a mistrial for-an abuse of discretion. Pulphus, 782 So.2d at 1223(¶ 10). Uniform Circuit and County Court Rule 3.12 provides that the court may declare a mistrial upon motion of any party if there is misconduct on behalf of a party “resulting in a substantial and irreparable prejudice to the movant’s case.”

¶ 13. During the State’s opening arguments, the prosecutor stated:

So, basically, ladies and gentlemen, we believe that the evidence is going to show that the defendant was caught red-handed there at the scene, and he actually confesses on two separate occasions, first, “I didn’t get anything out of the truck,” and then, secondly, up at the police station when he told ■ Anthony Ferguson, “Well, they got me this time.” So I believe—

¶ 14. A this point William Labarre, January’s attorney, objected to the statement that, “They got me this time,” as it implied that January was involved with other crimes with which he may or may not have been charged. Labarre further argued that the statement was not included in Ferguson’s police report; however, the police report is not included in the record on appeal. The trial court sustained the objection and then inquired if Labarre would like a limiting instruction. Labarre replied, “Well, I don’t want to bring any attention [sic].” Labarre then moved for a mistrial, and the motion was denied.

¶ 15. January argues that because the statement was prejudicial enough for the court to sustain his objection, the statement was prejudicial enough to require a mistrial. January is mistaken. Our supreme court has rejected the argument that a defendant is entitled to a mistrial when he refuses the court’s offer of a limiting instruction. See Easter v. State, 878 So.2d 10, 21 (¶¶ 33-35) (Miss.2004). We find no abuse of discretion in refusing to grant the mistrial as there is no indication that the comment resulted in irreparable prejudice to January. This issue is without merit.

III. DO THE CUMULATIVE ERRORS WARRANT A MISTRIAL?

¶ 16. In conclusion, January argues that the cumulative effect of the trial court’s failure to conduct a Rule 403 balancing test, coupled with the State’s statement in opening arguments, deprived January of a fair trial. Having found that January did not suffer prejudice at either instance as previously discussed in this opinion, we find this assignment of error to be without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF BURGLARY OF AN AUTOMOBILE AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Willie COFFEY, Jr. a/k/a Yak, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00712-COA.
    Court of Appeals of Mississippi.
    April 25, 2006.

      Robert T. Laster, Grenada, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Willie Coffey, Jr. was convicted in the Grenada County Circuit Court of possession of a firearm by a felon and given a three-year sentence in the custody of the Mississippi Department of Corrections. From that conviction and sentence Coffey appeals arguing that there was not sufficient evidence to establish possession of a weapon by a felon. Finding no error, we affirm.

FACTS

¶ 2. Willie Coffey, Jr. was tried before a Grenada County Circuit Court jury on a two count indictment. Count one was for trafficking in stolen firearms and count two was for possession of a firearm by a felon. Coffey was found not guilty on count one and convicted on count two.

¶ 3. Detective Donald King testified at trial that he was investigating the theft of firearms from the home of Roy Phillips. During the course of that investigation King obtained a confession from Chelsea Browning that she had stolen the firearms from Phillips and exchanged them with Coffey for cocaine. From this information King obtained a search warrant for Coffey’s mother’s house.

¶ 4. King, along with other officers, searched Coffey’s mother’s house for firearms and cocaine. While searching the house Coffey’s mother indicated which bedroom was Coffey’s. During the search a .22 automatic pistol was found under the mattress. Coffey shared this bedroom with his nephew, Charles Coffey, age sixteen. Upon finding this pistol in Coffey’s room, Willie Coffey was placed under arrest.

¶ 5. At trial Browning testified that she was addicted to cocaine and had stolen from Phillips because of her addiction. She identified the pistol found under Coffey’s mattress as one of the guns she had stolen and had exchanged for cocaine with Coffey. Browning testified that she had exchanged three guns and an owner’s manual to a rifle for drugs with Coffey.

¶ 6. Charles Coffey testified that he and Willie Coffey did not share the same bedroom, but that Willie Coffey slept on the couch while Charles slept in the bedroom. Charles also testified that he bought the pistol from Browning for $25 along with the owner’s manual to a rifle. Browning was recalled as a rebuttal witness and testified that she did not know Charles and had not sold him the pistol or manual. Browning testified that she had sold guns to Willie Coffey for cocaine and had not had any interaction with Charles.

¶ 7. At the conclusion of the trial, the jury returned a verdict of not guilty on the charge of trafficking in stolen firearms and guilty of possession of a firearm by a felon. From this verdict Coffey appeals, arguing that there was in insufficient evidence to demonstrate constructive possession of the firearm by him.

DISCUSSION

¶ 8. Coffey argues that the evidence of possession of the pistol was insufficient to sustain his conviction. A reviewing court must accept all the evidence and reasonable inferences in the light most favorable to the verdict. Holloman v. State, 656 So.2d 1134, 1142 (Miss.1995). With that view in mind, then we must determine whether evidence on any element of the charge is lacking. Id. Only if a reasonable juror had to reach a verdict of not guilty will we reverse. Id.

¶ 9. As there is no evidence that Coffey had actual possession of any of the weapons, the State was proceeding under the theory of constructive possession. For that, “there must be sufficient facts to warrant a finding that [the] defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Curry v. State, 249 So.2d 414, 416 (Miss.1971). “Constructive possession may be shown by establishing that the [item] involved was subject to his dominion or control.” Id. Proximity is usually an essential element, but by itself is not enough in the absence of other incriminating circumstances. Id.

¶ 10. The owner of the premises where the contraband is found is rebutt-ably presumed to be in possession of the contraband. Hamburg v. State, 248 So.2d 430, 432 (Miss.1971). Coffey was not the owner of the house where the pistol and manual were found, but his mother was and he lived there with her, his sister, and nephew. Thus, in cases where the defendant is not the owner of the premises or in exclusive possession, then the State must prove some “competent evidence connecting him with the contraband.” Powell v. State, 355 So.2d 1378, 1379 (Miss.1978).

¶ 11. As evidence that the pistol was in the Coffey’s possession, the State presented the testimony of Browning and Detective King. Browning testified that she had exchanged the guns with Coffey for cocaine and that she had met him about seventy times. She testified that she had not sold the pistol to Coffey’s nephew, Charles. King testified that he, along with other officers, had searched Coffey’s mother’s house and found the pistol there. Coffey’s mother had indicated to the officers which room in the house was Coffey’s. King testified that the pistol found under the bed was one that had been stolen from Phillips’ home.

¶ 12. Charles testified that he had purchased the pistol, but this testimony was rebutted by Browning. Coffey testified that the room in which the pistol was found had been his room prior to his incarceration on a previous conviction. Coffey testified that at the time of the search he was sleeping on the couch and not in the bedroom.

¶ 13. When reviewing the evidence presented at trial we find that there was sufficient evidence upon which the jury could reach a guilty verdict. We affirm the conviction of possession of a firearm by a felon.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF GRENADA COUNTY OF CONVICTION OF POSSESSION OF A FIREARM BY A FELON AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Walter R. MAKAMSON, Appellant v. Cynthia B. MAKAMSON, Appellee.
    No. 2005-CA-00429-COA.
    Court of Appeals of Mississippi.
    April 25, 2006.

      James W. Burgoon, Greenwood, attorney for appellant.
    Arnold F. Gwin, Greenwood, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Cynthia Makamson (Cindy) filed for modification of alimony twelve years after a final decree was entered, claiming a change of circumstances against Walter R. Makamson (Reece). The Chancery Court of Leflore County granted an increase from $1,700 to $2,700 per month in alimony. This increase was based on Cindy’s extensive medical costs following a kidney transplant. The trial court determined Reece’s ability to pay the increased alimony based on his increase in net worth. From this ruling Reece appeals raising two issues and Cindy’s motion for this Court to award attorney’s fees on appeal.

I. WHETHER ALIMONY MAY BE INCREASED WHEN THE ALLEGED CHANGE IN CIRCUMSTANCE WAS ANTICIPATED, FORESEEN, AND DEALT WITH IN THE ORIGINAL PROPERTY SETTLEMENT AND ALIMONY PROVISIONS OF THE FINAL JUDGMENT OF DIVORCE.

II. WHETHER AN ALIMONY PAY-OR’S INCREASE IN NET WORTH AS OPPOSED TO DISPOSABLE INCOME IS THE PROPER BASIS TO JUSTIFY AN INCREASE IN ALIMONY.

III. CINDY’S MOTION FOR ATTORNEY’S FEES ON APPEAL.

FACTS

¶ 2. Cindy and Reece Makamson were divorced in 1989 on the grounds of irreconcilable differences. They had four children born during their marriage. At the time of this modification three children were emancipated and the fourth was ruled emancipated by the trial court. They agreed to a property settlement which was incorporated into and approved by the court in the final decree of divorce. The agreement provided that Cindy would receive alimony in the amount of $1,200 per month with an increase of $250 per month upon the emancipation of their second and fourth child. This increase would escalate the alimony from $1,200 to $1,450 and finally to $1,700 per month. Additionally, Reece paid $650 per child per month for child support to Cindy and $20,000 per year for fifteen years as property settlement.

¶ 3. Five years prior to the divorce Cindy was diagnosed with a renal problem that would lead to kidney dialysis and ultimately a kidney transplant. In 1993, four years after the divorce, Cindy received a kidney transplant. While recovering from the transplant, Cindy suffered a stroke and was in a coma for twenty-four hours. Since the transplant, Cindy has had to spend in excess of $1,000 per month in medicine to keep from rejecting the kidney and to treat other medical conditions. Her total monthly expenses were $3,320.

¶ 4. At the time of the divorce Cindy had an insurance policy with Blue Cross & Blue Shield that provided her with a $50,000 lifetime benefit that had been exhausted the first year after the divorce. Cindy now has a policy with Blue Cross & Blue Shield that costs $332 per month with a $3,000 deductible for doctors and hospitals and $500 deductible for medicine. Cindy testified that she had been able to cover her expenses using the child support and property settlement payments she had received from Reece.

¶ 5. From the time of the divorce until the modification hearing, Reece’s net worth had increased from $1.6 million to $5.7 million. This increase was the basis the trial court used to determine that Reece had adequate disposable income to pay the $1,000 per month increase in alimony.

STANDARD OF REVIEW

¶ 6. Our scope of review in domestic relations matters is limited by our familiar substantial evidence/manifest error rule. Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990). “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). In other words, “[o]n appeal [we are] required to respect the findings of fact made by-'a chancellor supported by credible evidence and not manifestly wrong.” Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990).

LEGAL ANALYSIS

I. WHETHER ALIMONY MAY BE INCREASED WHEN THE ALLEGED CHANGE IN CIRCUMSTANCE WAS ANTICIPATED, FORESEEN, AND DEALT WITHIN THE ORIGINAL PROPERTY SETTLEMENT AND ALIMONY PROVISIONS OF THE FINAL JUDGMENT OF DIVORCE.

¶ 7. Cindy filed her complaint for modification of alimony arguing that her health condition and increased medical costs had created a material change in circumstance that was not anticipated in the property settlement agreement. Reece argues .that Cindy’s health condition had been addressed and that the increased costs had been anticipated, foreseen and dealt with in the original judgment as demonstrated by the escalating alimony upon the emancipation of the second and fourth child. We- do not agree.

¶ 8. Our supreme court has held that absent fraud or overreaching, a chancellor should take a dim view of efforts to modify improvidently agreed-upon divorce judgments. Ivison v. Ivison, 762 So.2d 329, 334(¶ 14) (Miss.2000). However, Ivi-son noted that agreed divorce judgments are still modifiable in the event of a change in circumstances not foreseen at the time of the agreement. Id. at 334(¶ 11). In order for a chancellor to find a substantial change in circumstances, there must have been some change which resulted from “after-arising circumstances of the parties not reasonably anticipated at the time of the agreement” ‘ and furthermore the change must “be one that could not have been anticipated by the parties at the time of the original decree.” Id. See also Steiner v. Steiner, 788 So.2d 771 (Miss.2001); Varner v. Varner, 666 So.2d 493, 497 (Miss.1995); Tingle v. Tingle, 573 So.2d 1389, 1391 (Miss.1990); Bell v. Bell, 572 So.2d 841 (Miss.1990).

¶ 9. The case of Profilet v. Profilet, 826 So.2d 91 (Miss.2002), addressed a very similar set of facts as the ones in the case sub judice. In Profilet the supreme court remanded an increase in alimony due to the lower court’s failure to make a finding on whether a sufficient change in circumstance had occurred to support an increase in alimony, whether a change in circumstance could have been anticipated, and whether the increase was based on erroneous calculations and other facts. Profilet was remanded so the chancellor could make specific findings as to the foreseeability of the effects of a medical condition at the time of final judgment on divorce. Id. at 96 (¶ 16).

¶ 10. In the case before this Court we do not see a need to remand. The chancellor made specific findings on the record that supported his increase in the amount of alimony. The chancellor made following findings:

And it is quite clear in this case that the parties had no earthly idea how much it was going to cost for No. 1, her to be on dialysis and cost of her health insurance and cost in her ability to make income, nor was it anticipated how much the medicine would cost, not only in specifics but I don’t think anyone in 1989 had any idea of the general explosion in costs of medical expense, both medical expense and drugs, nor the explosion of medical — of medicines that are available to treat conditions.
Certainly, there was no anticipation about strokes or depression or any of the problems that Mrs. Makamson has experienced because of her condition, and there just would be no possible way that the parties could have anticipated how much it costs to have a kidney condition that requires dialysis and then subsequently, thankfully requires and allows the patient to have a transplant. And there certainly is no evidence in this case that the parties made any attempt to ascertain that information, even the present information they would have had in '89.
There was no evidence presented that at the time of this agreement the parties would have even known how long it would be before Mrs. Makamson would have to be on dialysis, how long it would be before she could get or would have to need a kidney. No evidence was presented as to whether the parties in the present state of the evidence could say they knew any sort of time table in that. So a lot of that simply was not available.

These are specific findings that the increased costs, length of time before treatment was to begin and the stroke were not anticipated in the property settlement agreement.

¶ 11. When the property settlement agreement is reviewed, there is no mention of Cindy’s health condition nor an agreement addressing her future medical needs. The escalation clause does not contain any mention of it being for the additional costs associated with Cindy’s health.

¶ 12. We find that there was no anticipation of and no means by which Cindy’s health care needs could have been anticipated. Therefore, we find no error in the chancellor’s decision to increase Reece’s alimony payments from $1,700 to $2,700 per month.

II. WHETHER AN ALIMONY’S PAY-OR’S INCREASE IN NET WORTH AS OPPOSED TO DISPOSABLE INCOME IS THE PROPER BASIS TO JUSTIFY AN INCREASE IN ALIMONY.

¶ 13. As his second issue on appeal, Reece argues that the trial court erred in basing his ability to pay increased alimony on his net worth. From the time of the original divorce in 1989 until the case sub jtidice in 2005, Reece’s net worth had increased from $1.5 million to $5.7 million dollars. Reece contends that his net worth has increased over this time but his disposable income has not. Reece argues that the chancellor only considered his increase in net worth and did not consider all the Armstrong factors in the alimony increase. We do not agree.

¶ 14. When a chancellor makes a determination in awarding alimony or granting an increase, as in this case, he is to base his decision on the factors that are set out in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). In his opinion the chancellor does not specifically address each of the factors, but does state “the Court will review the Armstrong factors again to determine what, if any, additional income of alimony Ms. Makamson should have....” In examining these factors, the chancellor may consider them as an “overall combination” and need not individually list each one. Hoggatt v. Hoggatt, 766 So.2d 9,12(¶ 9) (Miss.Ct.App.2000).

¶ 15. The chancellor addresses Cindy’s ability to work, her health condition and her expenses, both health and personal in his opinion. Reece’s expenses, income, net worth and ability to pay are also noted by the court. The chancellor addressed Reece’s ability to pay child support, alimony, insurance for the children and the fifteen year installments of the property settlement agreement, while increasing his net worth at the same time.

¶ 16. We find that the trial court properly evaluated the Armstrong factors in making a determination to increase Cindy’s alimony payments from $1,700 per month to $2,700 per month. Finding no error, we affirm.

III. CINDY’S MOTION FOR ATTORNEY’S FEES ON APPEAL.

¶ 17. Cindy requests that this Court order Reece to pay her attorney’s fees on this appeal. We agree.

¶ 18. This Court has generally awarded attorney’s fees on appeal in the amount of one-half of what was awarded in the lower court. Monroe v. Monroe, 745 So.2d 249, 253(¶ 17) (Miss.1999). Attorney’s fees are based upon necessity rather than entitlement. Id.

¶ 19. The lower court found that Cindy was unable to pay her attorney’s fees because of her limited resources and awarded her attorney’s fees in the amount of $2,000. We grant Cindy’s motion for attorney’s fees on appeal in the amount of $1,000.

¶ 20. THE JUDGMENT OF THE LE-FLORE COUNTY CHANCERY COURT IS AFFIRMED. THE APPELLEE IS AWARDED ATTORNEY FEES IN THE AMOUNT OF $1,000 ON APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: BARNES, J.,

text:
    Jonathan Curtis BURNETT, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-02389-COA.
    Court of Appeals of Mississippi.
    April 25, 2006.

      Jonathan Curtis Burnett, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   BARNES, J.,

for the Court.

¶ 1. Jonathan Curtis Burnett pled guilty in the Circuit Court of Lowndes County to a charge of armed robbery and was sentenced to twenty years in the custody of the Mississippi Department of Corrections. After filing two unsuccessful motions for post-conviction relief, he filed a third which the trial court dismissed as a successive writ. From this dismissal, Burnett appeals. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On November 28, 2000, Jonathan Curtis Burnett entered a guilty plea in the Circuit Court of Lowndes County to a charge of armed robbery. The circuit court conducted a hearing to determine whether entry of the guilty plea was a voluntary act by Burnett. The court found it to be so, and Burnett admitted to robbing the Penny Ridge Grocery Store in Columbus at gunpoint on May 10, 2000.

¶ 3. After the guilty plea was accepted, Burnett’s appointed counsel, Thomas Kes-ler, asked that Burnett be sentenced at a later date so that Kesler could search for any mitigating factors such as Burnett possibly testifying against a co-defendant, James Strickland, who was still on the run. The court delayed sentencing until November 21, 2001, when Burnett requested to be sentenced. The record does not reflect whether Strickland was caught or if Burnett testified against him.

¶ 4. At the sentencing hearing, the court asked both the State and the defense attorney for any mitigating factors before sentencing Burnett. His new court-appointed attorney, Gary Goodwin, called Burnett to the stand in mitigation. Burnett asked the court to show mercy because at the time of the robbery he was using drugs and alcohol and was not in his “right mind” and because he was only seventeen at the time df the armed robbery. The district attorney told the court that Burnett was awaiting trial in Alabama on a murder charge and had a juvenile conviction of arson and carrying a concealed weapon “so there is not much mitigation for this gentleman.” The judge sentenced Burnett to twenty years in the custody of the Mississippi Department of Corrections. Had he gone to trial and been found guilty, Burnett could have been sentenced, by a jury, to life in prison without the possibility of parole. See Miss. Code Ann. § 97-3-79 (Rev.2000).

¶ 5. Burnett began his post-conviction filings on February 6, 2003, when he filed a motion for production of records. Noting that the motion was not one for post-conviction relief, the circuit court held Burnett’s motion was barred by Fleming v. State, 553 So.2d 505, 506 (Miss.1989), which holds that when a prisoner pleads guilty neither the post-conviction collateral relief statutes nor any other law gives him the right to institute an independent, original action for a free transcript or other documents. By pleading guilty the prisoner forgoes his right of a direct appeal and its attendant free copy of the transcript. Id. at 507. Instead a prisoner may secure such documents as part of the discovery proceedings under the post-conviction collateral relief statute, Miss.Code Ann. Section 99-39-15 (Rev.2000), after making a specific showing of his need for the trial record. Id. at 508.

¶ 6. On April 18, 2003, Burnett filed a petition for post-conviction collateral relief alleging ineffective assistance of counsel and involuntary guilty plea. On September 2, 2003, the trial court dismissed the motion without the necessity of conducting a hearing. Burnett did not appeal from this dismissal order.

¶ 7. Not to be thwarted, on February 24, 2004, Burnett filed a second post-conviction collateral relief petition to reduce his sentence, which the court again dismissed without the necessity of a hearing.

¶ 8. Undeterred, Burnett filed a third post-conviction collateral relief motion on October 5, 2004, again claiming ineffective assistance of counsel centering around an alleged conversation wherein Burnett’s first court-appointed attorney, Kesler, informed him of a conflict of interest due to the attorney’s friendship with the people at Penny Ridge Grocery where the robbery occurred. Kesler allegedly told Burnett that because of this conflict, Kesler was asking the court to allow him to withdraw as Burnett’s attorney. Burnett claims the court denied this motion. The only evidence of this alleged conversation and alleged action by the court is a sworn affidavit of Burnett attached to his motion. No transcription of the record of the August 14, 2000, hearing was designated by Burnett to be a part of the appeal record. There are no docket entries showing that Kesler asked the court to remove him as the court-appointed counsel or showing that the court denied the motion. Interestingly in his brief to this Court, Burnett appears to abandon the conflict of interest claim stating instead that Kesler was taken off his case because he “got elected for judge.”

¶ 9. On November 15, 2004, the circuit court dismissed Burnett’s third post-conviction relief petition as “a frivolous filing” which did not require a hearing and was barred as a successive writ.

¶ 10. On February 24, 2005, the circuit court entered an order allowing Burnett to appeal the November 15, 2004 denial of post-conviction relief.

STANDARD OF REVIEW

¶ 11. In reviewing a trial court’s decision to deny a petition for post-conviction relief, this Court will not reverse such a denial absent a finding that the trial court’s decision was clearly erroneous. Kirksey v. State, 728 So.2d 565, 566(¶ 8) (Miss.1999). However, where questions of law are raised, the standard of review is de novo. Rice v. State, 910 So.2d 1163, 1164-5(¶ 4) (Miss.Ct.App.2005). The trial court’s obligation is to review the original motion and all files, records, transcriptions and correspondence relating to the judgment under attack so that the allegations may be resolved. Miss.Code Ann. § 99-39-11(1) (Rev.2000). The burden is upon the petitioner to prove by a preponderance of the evidence that he is entitled to the requested post-conviction relief. Miss. Code Ann. § 99-39-23(7) (Rev.2000). If it plainly appears on the face of the motion, any annexed exhibits and from the prior proceedings that the petitioner is not entitled to relief, then the court may dismiss the motion. Miss.Code Ann. § 99-39-11(2) (Rev.2000). Any order of the court denying relief under the post-conviction collateral relief act is a final judgment and is conclusive until reversed. Miss.Code Ann. § 99-39-23(6) (Rev.2000).

ISSUE AND ANALYSIS

¶ 12. The issue on appeal is whether the trial court was correct when it dismissed Burnett’s petition as a successive writ pursuant to Mississippi Code Annotated Section 99-39-23(6), which provides that an order of dismissal shall be a bar to a second or successive motion challenging the same conviction or sentence. Black v. State, 902 So.2d 612, 614(¶6) (Miss.Ct.App.2004).

¶ 13. Burnett tries to frame his issue on appeal as lack of effective assistance of counsel. However, we need not consider the merits of this issue as Burnett’s first claim of ineffective assistance of counsel was considered and rejected by the circuit court below on September 2, 2003. Burnett took no appeal from that ruling, but instead filed two additional petitions for post-conviction relief.

¶ 14. The record is unequivocal that Burnett filed a post-conviction collateral relief petition on April 18, 2003, alleging ineffective assistance of counsel and involuntary guilty plea. On September 2, 2003, the trial court rejected the petition and dismissed it. On October 5, 2004, Burnett filed another post-conviction relief petition alleging again ineffective assistance of counsel which the trial court dismissed as a successive writ. It is clear from the incontrovertible proof that the trial court was correct in its ruling that the October 5, 2004 filing was barred by the September 2, 2003 decision.

¶ 15. Burnett might defeat the successive writ bar if he is able to show (1) that there has been an intervening decision by either the United States Supreme Court or the Mississippi Supreme Court which would actually adversely affect the outcome of his conviction or sentence; (2) that newly discovered evidence not reasonably discoverable at the time of trial which had it been introduced would have caused a different result or (3) if Burnett can show that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Miss.Code Ann. § 99-39-23(6).

¶ 16. Burnett has not cited us to any intervening decisions of the U.S. Supreme Court or the Mississippi Supreme Court which affected in any way his conviction or sentence. Burnett makes no claim of newly discovered evidence that would have brought a different result. Instead his claimed proof of ineffective assistance of counsel is all proof which was available at the time he entered his guilty plea, at the time he was sentenced and at the time he filed his first petition for post-conviction relief. The only support Burnett offers is his own affidavit. For post-conviction relief, an inmate does not support his claim of ineffective assistance of counsel with sufficient proof by offering only his own affidavit. Vielee v. State, 653 So.2d 920, 922 (Miss.1995); King v. State, 828 So.2d 825, 826 (¶ 7) (Miss.Ct.App.2002). Thus Burnett has failed to qualify under the second exception. Finally Burnett makes no claim regarding his sentence, probation, parole or conditional release. Thus, none of the exceptions to the successive writ bar apply to Burnett.

¶ 17. We find no error in the trial court’s dismissal of Burnett’s post-conviction collateral relief petition.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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


author: ISHEE, J., GRIFFIS, J.,

text:
    Mamie STEPHENS, Appellant v. KEMCO FOODS, INC. d/b/a Sunfower Food Store, #9077 and Wylis Kemp, Individually and in his Official Capacity as Owner and Operator of Sunflower Food Store, #9077, Appellees.
    No. 2003-CA-02528-COA.
    Court of Appeals of Mississippi.
    May 2, 2006.

      Dion Jeffery Shanley, Oxford, attorney for appellant.
    L. Bradley Dillard, Jackson, attorney for appellees.
   ISHEE, J.,

for the Court.

¶ 1. On February 21, 2001, Mamie Stephens brought suit in the Circuit Court of Lafayette County against Kemco Foods, Inc. d/b/a Sunflower Food Store (“Sunflower”) and Wylis Kemp, both individually and in his capacity as owner/operator of Sunflower Food Store, for negligence, false imprisonment, false arrest, slander, and defamation. Wylis Kemp was subsequently dismissed by agreement. At trial, the trial judge granted a directed verdict in favor of Sunflower on the slander and defamation claims, and the jury returned a verdict in favor of Stephens for $300 on the negligence claim. The jury returned a verdict in favor of Sunflower on the false arrest and false imprisonment claims. Stephens’s motion for a new trial was denied. Aggrieved by the verdict and ruling, Stephens appeals. Finding error, we reverse and remand in part and affirm in part.

FACTS

¶2. On June 3, 1995, Sunflower’s store in Okolona, Mississippi accepted a check in the amount of $54.77 drawn on Stephens’s account at Sunburst Bank in Oxford, Mississippi. Sunflower kept no records as to which of its employees accepted the check. The check, which was signed with Stephens’s name, was later returned to Sunflower dishonored and marked “unable to locate,” because the account had been closed. Following the return of the check, Sunflower inexplicably lost the check for approximately five years. When it found the check in August of 2000, it mailed a form letter to the address listed on the check demanding satisfaction and threatening prosecution if Stephens did not pay the amount dishonored. Sunflower never received any response to the letter, which was returned marked “undeliverable.” As a result, Sunflower instigated criminal proceedings against Stephens.

¶ 3. Police approached Stephens at her place of employment in Lafayette County on September 29, 2000, and served her the arrest warrant in front of her employer, co-workers, and her employer’s customers. The officers agreed to let Stephens finish her shift, and she subsequently surrendered herself. A bond was set which Stephens could not pay at the time, but her niece subsequently helped her to meet it, securing her release.

¶ 4. Stephens traveled to Okolona, Mississippi for her court date, and there informed the judge that she did not write the check and had no knowledge of who could have done so. Stephens stated that, prior to her court date, she had never been to Okolona, Mississippi. Because of this testimony and the fact Sunflower did not attend, the judge dismissed the charges.

¶ 5. Stephens brought suit against Sunflower and Wylis Kemp in the Circuit Court of Lafayette County for negligence, false imprisonment, false arrest, slander, and defamation. Two days prior to trial, Stephens moved to amend the pleadings to conform to the tort of malicious prosecution, but the trial judge denied the motion. At trial, it was undisputed that Stephens had lived at the same location for twelve years, and that no one had contacted her to ask about the 1995 check. Sunflower’s demand letter was sent to the address on the check, a rural route address, but Lafayette County had since changed its address system to 911 addresses, causing the letter to be returned as undeliverable for lack of sufficient address. Wylis Kemp stated at trial that, because the letter came back as undeliverable, it was clear to Sunflower that Stephens had not received it. There was no evidence at trial that Sunflower made any attempt to telephone Stephens concerning the check.

¶ 6. At the close of Stephens’s proof, Sunflower moved for directed verdict on the slander and defamation claims on the grounds that it had acted reasonably and in good faith in initiating criminal proceedings concerning the dishonored check. The trial court granted Sunflower’s motion, and the defamation and slander claims were dismissed. On Stephens’s negligence claim, the jury returned a verdict for $300. On the claims for false arrest and false imprisonment, the jury returned a verdict in favor of Sunflower. Stephens’s motion for a new trial was denied. Aggrieved by verdict and rulings, Stephens now appeals, asserting: (1) that the trial court erred in denying Stephens’s motion to amend the pleadings to conform to the evidence of the tort of malicious prosecution; (2) that Sunflower’s use of peremptory challenges under the circumstances of the case denied Stephens’s rights to equal protection of the laws as guaranteed by the Mississippi and federal constitutions; (3) that the trial court erred by allowing Sunflower to present to the jury an incomplete picture of its financial characteristics by preventing Stephens from probing the issue on cross; (4) that the trial court erred in granting in part Sunflower’s motion for directed verdict, dismissing Stephens’s claims for slander and defamation; and (5) that the trial court erred in granting Sunflower’s jury instructions to interject the issue of comparable fault.

ISSUES AND ANALYSIS

I. Whether the trial court erred in denying Stephens’s motion to amend the pleadings to conform to the evidence of the tort of malicious prosecution.

¶ 7. Stephens first asserts that the trial judge erred by denying her motion to amend the pleadings to conform to the evidence of the tort of malicious prosecution. She contends that Sunflower would in no way have been prejudiced by allowing the amendment.

¶ 8. In reviewing a trial court’s grant or denial of a motion to amend pleadings, this Court uses an abuse of discretion standard. Harris v. Miss. Valley State Univ., 873 So.2d 970, 990(¶ 64) (Miss.2004). Rule 15(b) of the Mississippi Rules of Civil Procedure states:

Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of trial of these issues. If evidence is objected to at trial on the ground that it is not within the issues made the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the maintaining of the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. The court is to be liberal in granting permission to amend when justice so requires.

The comment to Rule 15(b) further states that, “if the objecting party can show prejudice, the court may grant a continuance to meet the evidence, but should again allow amendment of the pleadings.” However, “[ajpphcations to amend the pleadings should be prompt and not the result of lack of diligence.” Harris, 873 So.2d at 991(¶ 64). Additionally, applications to amend pleadings need not be granted if such amendment would be futile. See Simmons v. Thompson Machinery of Mississippi, Inc., 631 So.2d 798, 800 (Miss.1994).

¶ 9. For a plaintiff to prevail on a malicious prosecution claim, she must prove by the preponderance of the evidence the following elements: (1) institution of a proceeding; (2) by, or at the insistence of the defendant; (3) termination of the proceeding in the plaintiffs favor; (4) malice in instituting the proceedings; (5) lack of probable cause for the proceedings; and (6) injury or damage resulting from the prosecution. Condere Corp. v. Moon, 880 So.2d 1038, 1042(¶ 13) (Miss.2004).

¶ 10. We see nothing in the record to indicate that Sunflower would be actually prejudiced as a result of allowing the amendment of the pleadings to allow the claim of malicious prosecution. Rule 15(b) is clear in instructing trial judges to liberally grant motions to amend pleadings so long as the objecting party would not be prejudiced. The comment to the Rule further reinforces this point, stating that, even in the case of prejudice, a judge should grant a continuance in order for the opposing party to meet the evidence, but nevertheless should allow the amendment. The trial judge enunciated no reason as to why the motion was denied other than citing that it was made two days prior to trial and had not previously been pled. As such, we find that the trial court abused its discretion in denying Stephens’s motion to amend the pleadings to conform to the evidence. Accordingly, we reverse and remand.

II. Whether Sunflower’s use of peremptory challenges under the circumstances of the case denied Stephens’s rights to equal protection of the laws as guaranteed by the Mississippi and federal constitutions.

¶ 11. Stephens next contends that her equal protection rights were violated when Sunflower exercised all of its peremptory challenges on African Americans. In Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that racial discrimination through the use of peremptory strikes is prohibited. To satisfy the first of the three prongs set forth in Batson, a party objecting to a peremptory challenge must first make a prima facie showing that race was the basis for the peremptory strike. Id. at 96-97, 106 S.Ct. 1712; McFarland v. State, 707 So.2d 166, 171(¶ 14) (Miss.1997). This shifts the burden to the party exercising the peremptory strike to give a race-neutral reason for the strike. Batson, 476 U.S. at 97-98, 106 S.Ct. 1712; McFarland, 707 So.2d at 171(¶ 14). If the objecting party wishes to challenge the proffered race-neutral reason as pretextual, it must do so at the trial court level or it waives the right to do so on appeal. Mack v. State, 650 So.2d 1289, 1297 (Miss.1994). The trial court must then determine whether the party objecting to the peremptory strike has successfully proven the existence of racial discrimination in the use of the peremptory strike. Batson, 476 U.S. at 98, 106 S.Ct. 1712; McFarland, 707 So.2d at 171(¶ 14).

¶ 12. We give great deference to the trial court’s determination of whether the reason given for the peremptory strike was truly race-neutral under the circumstances. McFarland, 707 So.2d at 172(¶ 16). A trial court’s ruling on a Bat-son challenge will not be overturned unless “clearly erroneous or against the overwhelming weight of the evidence.” Lynch v. State, 877 So.2d 1254, 1270(¶46) (Miss.2004) (citations omitted).

¶ 18. In the case sub judice, Stephens satisfied the first Batson prong by showing that she was African American and that Sunflower exercised its peremptory challenges exclusively to excuse other African Americans, thus raising an inference of purposefully striking them because of race. See id. at 1270-71(¶ 48). The burden then switched to Sunflower to articulate race-neutral reasoning for its peremptory challenges. As to four African American jurors on which Sunflower exercised its peremptory challenges, Sunflower’s proffered race-neutral explanations were: the first juror struck, Floyd Brooks, “knew Mrs. Stephens. Knew all of her family”; the second, Sara Pegues, knew Stephens and often saw her at a mutual friend’s home; the third, Charolette Brewer, had a relationship with one of Stephens’s relatives; and the fourth, Janice Hardin, works with Sarina Morgan, Stephens’s niece, who accompanied her to the police department on the day the arrest warrant was served. Stephens offered no evidence that these reasons were pretextual.

¶ 14. Stephens argues that the tightly knit nature of the racial group in the venue makes the race-neutral explanations effectively irrebuttable. However, this argument does nothing to rebut the legal framework set forth by Batson. There is no right guaranteeing that a person will have a “petit jury composed in whole or in part of persons of [her] own race.” Batson, 476 U.S. at 85, 106 S.Ct. 1712 (quoting Strauder v. West Virginia, 100 U.S. 303, 305, 25 L.Ed. 664 (1880)).

¶ 15. Because there is no evidence of pretext in the record, we find that the decision of the trial judge concerning Stephens’s Batson challenges was neither clearly erroneous nor against the overwhelming weight of the evidence. Accordingly, we find this assignment of error to be without merit.

III. Whether the trial court erred by allowing Sunflower to present to the jury an incomplete picture of its financial characteristics by preventing Stephens from probing the issue on cross.

¶ 16. At trial, following questioning on direct examination by counsel for Sunflower pertaining to the “size” of Kem-eo, Inc. (Sunflower’s parent company), Stephens sought to elicit testimony from Sunflower concerning its size, as evidenced by its gross receipts. The trial judge, however, disallowed Stephens from questioning Sunflower concerning its gross receipts. Stephens now asserts that the trial judge erred by disallowing the questioning. Stephens contends that allowing counsel for Sunflower to question the witness concerning Kemco’s size while not allowing her to question the witness concerning Kemco’s gross receipts allowed counsel for Sunflower to portray “Sunflower as victim.”

¶ 17. However, Stephens fails to cite any authority for her argument other than Mississippi Rule of Evidence 401, which defines which evidence is relevant. “It is the duty of an appellant to provide authority in support of an assertion of error.” Jones v. Howell, 827 So.2d 691, 702(¶ 40) (Miss.2002). Where a party fails to cite relevant authority supporting an issue, this Court will not review the issue. Beene v. State, 910 So.2d 1152, 1154(¶ 7) (Miss.Ct.App.2005).

IV. Whether the trial court erred in granting in part Sunflower’s motion for directed verdict, dismissing Stephens’s claims for slander and defamation.

¶ 18. In reviewing a trial court’s grant of a motion for directed verdict, this Court

considers] the evidence in the light most favorable to the [non-moving party], giving that party the benefit of all favorable inference that may reasonably be drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the [moving party] that reasonable [jurors] could not have arrived at a contrary verdict, [we are] required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affir-mance is required.

Owens v. Miss. Farm Bureau Cas. Ins. Co., 910 So.2d 1065, 1073(¶ 29) (Miss.2005) (quoting 3M Co. v. Johnson, 895 So.2d 151, 160(¶ 30) (Miss.2005); Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992)).

¶ 19. Stephens asserts that the trial court erred in granting Sunflower’s motion for directed verdict with regard to her defamation and slander claims. The trial court’s reasoning in granting directed verdict on these issues was that it found Sunflower had acted reasonably and in good faith in initiating the criminal proceedings against Stephens.

¶ 20. To successfully establish a claim for defamation, the following elements must be proven by a plaintiff: (1) a false and defamatory statement regarding the plaintiff; (2) unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) either action ability of statement irrespective of special harm or existence of special harm caused by publication of the defamatory statement. Armistead v. Minor, 815 So.2d 1189, 1193(¶ 7) (Miss.2002).

¶ 21. However, there exists a qualified privilege in Mississippi to instigate criminal proceedings against a person by complaints to the proper officials so long as the person doing so acts for a legitimate purpose, with reasonable grounds to believe that the person against whom he is initiating criminal proceedings may in fact be guilty of the offense charged. Downtown Grill, Inc. v. Connell, 721 So.2d 1113, 1117(¶ 8) (Miss.1998). It is in questioning the existence of this qualified privilege in the case sub judice that the malicious prosecution claim becomes relevant, because Mississippi law does “allow those subjected to criminal proceedings cloaked with malice to recover compensation for their losses.” Id. at (¶ 11). “In analyzing probable cause and malice, courts look to objective facts as to the former and the subjective state of mind as to the latter.” Owens v. Kroger Co., 430 So.2d 843, 846 (Miss.1983). When the facts are disputed, it is a jury question as to whether or not probable cause existed to initiate the proceedings. Id. When not in dispute, the court must determine whether or not such probable cause existed. Id. “Malice, on the other hand, is a mental state ... [and] may be proved by circumstantial evidence, or the jury may infer malice from the facts of the case.” Id.

¶ 22. In the case sub judice, the defamation and slander claims are inextricably intertwined with the malicious prosecution claim. The existence of malice in a malicious prosecution claim is a question for the jury. Because the existence of qualified privilege with regard to the defamation and slander claims is dependent upon the success of the malicious prosecution claim, directed verdict was not proper. As such, viewing the evidence in the light most favorable to Stephens and allowing all reasonable inferences therefrom, we find that the trial court erred in granting Sunflower’s motion for directed verdict as to these claims. Accordingly, we reverse and remand.

V. Whether the trial court erred in granting Sunflower’s jury instructions to interject the issue of comparable fault.

¶ 23. In reviewing a trial court’s grant or denial of jury instructions, this Court views the instructions as a whole rather than in isolation. Rushing v. State, 911 So.2d 526, 537(¶24) (Miss.2005). “[A] trial court may refuse an instruction which misstates the law, is fairly addressed in another instruction, or has no evidentiary foundation.” Davis v. State, 909 So.2d 749, 752(¶ 11) (Miss.Ct.App.2005) (citing Poole v. State, 826 So.2d 1222, 1230(¶ 27) (Miss.2002)). If the jury instructions, read as a whole, “fairly announce the law of the case and create no injustice, no reversible error will be found.” Johnson v. State, 823 So.2d 582, 584(¶ 4) (Miss.Ct.App.2002).

¶ 24. Stephens asserts that jury instruction D5, which instructed the jury that they were permitted to consider comparable fault, was granted in error. Mississippi Code Annotated § 85-5-7 (Rev. 1999) allows for allocation of fault in civil actions based on fault. However, as both parties concede, § 85-5-7 does not allow for allocation of fault in cases involving intentional torts. As such, we find that the instruction did not fairly announce the law of the ease, and the trial judge granted it in error. Compounded with the other errors in this case, allowing this instruction to stand would create an injustice. Consequently, we reverse and remand.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IS REVERSED AND REMANDED IN PART AND AFFIRMED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

KING, C.J., LEE and MYERS, P.JJ. AND ROBERTS, J., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY SOUTHWICK AND CHANDLER, JJ. BARNES, J., NOT PARTICIPATING.

GRIFFIS, J.,

Concurring in part and dissenting in part:

¶ 26. For the following reasons, I concur in part and dissent in part.

I.Whether the trial court erred in denying Stephens’s motion to amend the pleadings to conform to the evidence of the tort of malicious prosecution.

¶ 27. The majority concludes that the trial court abused its discretion when it denied Stephens’s motion to conform to the evidence. I disagree.

¶ 28. On September 25, 2003, Stephens filed her motion to amend the pleadings to conform to the evidence adduced in this action. She asked for leave to amend and add claims for (1) malicious prosecution, and (2) punitive damages. The majority is correct to note that amendments made to conform to the evidence are subject to Rule 15(b) of the Mississippi Rules of Civil Procedure. However, at the hearing, held after the jury was sworn in on the morning of the trial, September 29, 2003, the trial court determined that it was a motion to amend and not a motion to conform to the evidence, because no evidence had been tendered.

¶ 29. In my opinion, the trial court properly considered the motion to amend under Rule 15(a). The trial court granted the motion to amend to allow the punitive damage claim based on the fact that Sunflower’s counsel admitted that the punitive damage claim was not a surprise. The trial court denied the motion to amend to allow the malicious prosecution claim because the court did not find that it had been previously been pled and considered it to be untimely. Rule 15 vests this decision within the discretion of the circuit judge. Here, based on the record, I cannot find that the circuit judge abused his discretion. See Natural Mother v. Paternal Aunt, 583 So.2d 614, 617 (Miss.1991) (leave to amend two days before trial should be denied if the opposing party who is ready for trial would be prejudiced); Marchbanks v. Borum, 806 So.2d 278, 286(¶ 22) (Miss.Ct.App.2001). Accordingly, I would affirm on this issue.

II. Whether Sunflower’s use of peremptory challenges under the circumstances of this case denied Stephens’s rights to equal protection of the laws as guaranteed by the Mississippi and federal constitutions.

¶ 30. I concur with the majority and find no merit to this issue.

III. Whether the trial court erred by allowing Sunflower to present to the jury an incomplete picture of its financial characteristics by preventing Stephens from probing the issue on cross.

¶ 31. I concur with the majority on the outcome of this issue, but I disagree with its analysis. Indeed, Stephens cited us to Rule 401 of the Mississippi Rules of Evidence. On cross-examination of Wylis Kemp, Stephens’ counsel asked the following questions:

Q. Do you, your wife and your son own all the shares?
A. Yes.
Q. You also said that [Sunflower] is a small company not like Kroger, a family business.
A. That’s correct.
Q. Now, would you please tell us what you specifically mean by a small company. What is what are the gross receipts for Kemco in a year for instance?
Defense Counsel: Your Honor, I’m going to object to this to [sic] issue of relevance.
Stephens’s Counsel: Your Honor, he broached the subject.
Defense Counsel: Well we didn’t get into gross receipts. We asked about the size of the business, Your Honor.
Court: I’m going to assume he meant by the number of owners. I’m going to sustain the objection. Ask you to move on.

¶ 32. I am of the opinion that it is sufficient for Stephens to cite us to the Mississippi Rules of Evidence to support an issue that relates to the relevance of certain evidence. Indeed, an analysis of other cases interpreting similar situations would have been helpful. Nevertheless, I am of the opinion that it gets beyond the waiver of the issue on appeal.

¶ 33. Rule 401 defines “Relevant Evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Stephens’s argument fails to explain how evidence of Sunflower’s gross receipts could affect a fact of consequence in this case. Hence, I find no error in the circuit judge’s ruling.

TV. Whether the trial court erred in granting in part Sunflower’s motion for directed verdict, dismissing Stephens’s claims for slander and defamation.

¶ 34. Stephens argues that there was sufficient evidence to present a jury question of whether the communication made by Sunflower to the Chickasaw County Justice Court Clerk defamed or slandered Stephens. She also claims that although the circuit judge found that a qualified privilege applied, Stephens exceeded the scope of this privilege. The evidence indicated that there was no communication to a third party other than the justice court clerk. The clerk was given the affidavit of the crime. There was evidence of probable cause to suspect the crime of false pretense was committed. The bad check statute provides that “[i]f any notice is returned undelivered to the sender after such notice was mailed to the address printed on the check, draft or order, or to the address given by the accused at the time of issuance of the instrument, such return shall be prima facie evidence of the maker’s or drawer’s intent to defraud.” Miss.Code Ann § 97-19-57 (Rev.2004).

¶ 35. Since I am of the opinion that trial court was correct, I find no error on this issue and would affirm.

V. Whether the trial court erred in granting in part Sunflower’s jury instructions to interject the issue of comparable fault.

¶ 36. I disagree with the majority. In the complaint and the pretrial order, Stephens indicated that she asserted a claim for negligence. Jury instructions D-3, D-4 and D-5 instructed the jury on negligence and comparative negligence. I find no error in granting these instructions.

¶ 37. I would affirm the jury’s verdict.

SOUTHWICK AND CHANDLER, JJ„ JOIN THIS SEPARATE WRITTEN OPINION.

      . Stephens confirmed that the account had been closed prior to the writing of the check on June 3, 1995 because she and her husband had separated, and she did not want him attempting to use the account.

      . Wylis Kemp was dismissed according to agreement of the parties before the case proceeded to trial.

      . Mississippi Rule of Evidence 401 defines relevant evidence as "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

      . This was on a Thursday. The trial was to begin the following Monday, September 29, 2003. Thus, the motion to amend was made less than two business day before the trial.


author: GRIFFIS, J.,

text:
    Omar Mohamed ALI a/k/a Omar M. Ali, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-01816-COA.
    Court of Appeals of Mississippi.
    May 2, 2006.
    James D. Franks, Hernando, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

GRIFFIS, J.,

for the Court.

¶ 1. The motion for rehearing is granted. The original opinion is withdrawn and this opinion substituted in its place.

¶ 2. In a jury trial in the Circuit Court of Desoto County, Mississippi, Omar Mohamed Ali was found guilty of a third offense of felony DUI. Ali was tried in absentia. The trial judge sentenced Ali to five years in the custody of the Mississippi Department of Corrections with four years suspended. Ali now appeals on the following issues:

STATEMENT OF THE ISSUES

I. DID THE TRIAL COURT ERR IN ALLOWING THE TRIAL OF ALI IN ABSENTIA?

II. DID THE TRIAL COURT ERR IN ADMITTING IRRELEVANT AND UNDULY PREJUDICIAL EVIDENCE OF INTOXILYZER TEST RESULTS WHEN THE INDICTMENT ALLEGED A VIOLATION OF MISSISSIPPI CODE ANNOTATED SECTION 63-ll-30(l)(a) AND NOT SECTION 63-ll-30(l)(c)?

III. DID THE TRIAL COURT ERR IN OVERRULING ALPS MOTION FOR A DIRECTED VERDICT?

FACTS

¶ 3. A little past midnight on December 13, 2002, Chris Cline, a patrolman with the Horn Lake Police Department, observed a white GMC Yukon traveling on Highway 302 crossover into the center turn lane four times. Cline pulled the car over and noticed the odor of an intoxicating beverage and the bloodshot eyes of the driver. The man driving was Omar Ali, and when asked to get out of the car the patrolman noticed that Ali was unsteady, having to keep his hand on the car to balance himself.

¶ 4. Ali told Cline he had only consumed a single beer, but Ali failed both field sobriety tests and was placed under arrest. At the police station the officers administered a breath test on Ali using the Intoxi-lyzer 5000. This test was performed approximately a half hour after the arrest and the result was 0.090%. The legal limit for intoxication is 0.080%.

¶ 5. The indictment alleged Ali violated Mississippi Code Annotated section 63 — 11— 30(l)(a) by operating a motor vehicle while under the influence of intoxicating liquor. This was AJi’s third offense under this statute after having twice been convicted in Shelby County, Tennessee for DUI. A jury trial was to be held on July 15, 2003. The morning of trial both Ali and his attorney were present at 8:30 a.m. However, there was a trial that was not completed and they were to return that afternoon to begin their trial. Ali did not return that afternoon and his attorney’s motion for continuance was denied. Officer Cline was the sole witness in the case since Ali did not have any witnesses testify for the defense and obviously did not testify on his own behalf. The motions for directed verdict and JNOV made by Ali’s attorney were denied.

ANALYSIS

I. DID THE TRIAL COURT ERR IN ALLOWING THE TRIAL OF THE ALI IN ABSENTIA ?

¶ 6. The trial of Ali was set to begin at 8:30 a.m. on July 15, 2003. Ali was present at that time but the court requested the parties to come back at 1:00 p.m. because another trial was still under way and would be finished by the afternoon. At 1:30 p.m., Ali still was not present and the prosecutor wished to proceed without him. Ali’s attorney made a motion for a continuance which was ultimately denied. In the debate over the issue, the parties established that a statement would be given to the jury in the form of a jury instruction regarding Ali’s absence. However, at this time, Ali’s attorney believed Ali was merely stuck in traffic on the interstate and would appear in court soon. Ali never reappeared in the courtroom.

¶ 7. There is a long history of precedent for the constitutionality of trial in absentia under Mississippi Code Annotated section 99-17-9 (Rev.2000). See Thomas v. State, 117 Miss. 532, 78 So. 147 (1918); Williams v. State, 103 Miss. 147, 60 So. 73 (1912).

¶ 8. The Mississippi Supreme Court in Jefferson v. State, 807 So.2d 1222(¶ 14) (Miss.2002), carved out an exception, allowing a trial in absentia based on willful, voluntary and deliberate actions by a defendant in avoiding trial.

¶ 9. In Jefferson, Jefferson was present at his arraignment and later at his hearing on November 5, 1999, at which time his trial was set for March 20, 2000. Id. at 1223(¶ 3). On March 1, 2000, defense counsel attempted to reach Jefferson by telephone to prepare for trial, but could not reach him. Id. After many failed attempts to reach Jefferson by phone, on March 13, 2000, defense counsel sent a letter to Jefferson advising him of the trial date and requesting that Jefferson contact him immediately. Id. On March 14, 2000, Jefferson called his attorney and they discussed the case. Id. at 1224(¶ 4). Defense counsel asked Jefferson to meet with him on March 16, 2000, to prepare for trial, however Jefferson failed to appear. Id. On March 19, 2000, defense counsel again unsuccessfully attempted to reach Jefferson by telephone. Id.

¶ 10. Jefferson failed to appear at trial on March 20, 2000. A warrant was issued for his arrest and the matter was continued until the next day. Id. at 1223(¶ 2) Defense counsel attempted to contact Jefferson by telephone, but was unable to reach him. Id. On March 21, 2000, Jefferson again failed to appear at trial and the matter was continued to the next day. Id. Defense counsel again attempted to contact Jefferson but was unsuccessful. Id. When Jefferson failed to appear at trial on March 22, 2000, the trial court found that he had waived his right to be present for trial and allowed the trial to continue in absentia. Id. at 1224(¶ 4).

¶ 11. Here, Ali made all previous court appearances. Ali’s trial was originally scheduled for July 8, 2003. He appeared for trial on that date. However, the State was granted a continuance until July 15, 2003, due to the fact that one of its witnesses was unavailable to testify.

¶ 12. On July 15, 2003, Ali appeared for trial at 8:30 a.m. The trial did not begin as scheduled because the State was trying another case which was not yet completed. Ali’s counsel told the court that Ali was told to be back to court at 1:00 p.m. for the trial to begin. At 1:00 p.m., Ali’s case was called for trial but Ali was not present. At 1:25 p.m. Ali was still not present and defense counsel asked for a continuance. The trial court denied the request for a continuance and found that Ali could not claim he did not know of the 1:00 p.m. trial since he was at the courthouse that morning. The court proceeded with the trial in absentia.

¶ 13. At the hearing on his motion for JNOV or new trial, Ali was given an opportunity to testify and explain why he was not present for the trial. Ali testified:

My lawyer, he never talked to me even two minutes. He tell me I’ll call you when it’s ready. The thing is ready. I didn’t understand him. I said okay. Before that, they never send me any letter. He tell me you have a two. I call his secretary always. I never see him. So the next day they tell me you have eight, which was before that week. He called me around 7:45 morning on 8 morning at my house. So I drive down, and he tell me I’m going to get you another week, which is the 15th. I come 7:55. I was here. I’m going to call you. Go do what you do. I was doing my job. I’m not run. So that’s what happened.

Ali’s counsel argued that Ali is a Somalian citizen and barely speaks English,. He argued that Ali was present at 7:55 a.m. the morning of the trial and counsel instructed Ali to go to work. Counsel was to call him when the case was ready for trial. The State offered no evidence to dispute Ali’s testimony.

¶ 14. Pursuant to Jefferson, Ali’s trial in absentia was appropriate only if Ali acted willfully, voluntarily, and deliberately to avoid trial by engaging in actions at least as egregious as those committed in Jefferson. We do not find that Ali’s actions meet this criteria. Accordingly, we reverse and remand for a new trial.

II. DID THE TRIAL COURT ERR IN ADMITTING IRRELEVANT AND UNDULY PREJUDICIAL EVIDENCE OF INTOXILYZER TEST RESULTS WHEN THE INDICTMENT ALLEGED A VIOLATION OF MISSISSIPPI CODE ANNOTATED SECTION 63 — 11—30(l)(a) AND NOT SECTION 63 — 11—30(l)(c)?

¶ 15. It is well settled that “[t]he relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.” Parker v. State, 606 So.2d 1132, 1136 (Miss.1992); Johnston v. State, 567 So.2d 237, 238 (Miss.1990) (citing Hentz v. State, 542 So.2d 914, 917 (1989)). “Unless the trial judge’s discretion is so abused as to be prejudicial to the accused, this Court will not reverse his ruling.” Parker, 606 So.2d at 1136.

¶ 16. Mississippi Code Annotated section 63-11-30 (Rev.2004): Regarding the operation of a motor vehicle under influence of alcohol or other impairing substance, provides as follows:

(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; ... (c) has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age to purchase alcoholic beverages under state law, or two one-hundredths percent (.02%) or more for persons who are below the legal age to purchase alcoholic beverages under state law, in the person’s blood based upon grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath as shown by a chemical analysis of such person’s breath, blood or urine administered as authorized by this chapter....

¶ 17. The introduction of the Intoxilyzer result was just one of several pieces of evidence the prosecution used to prove Ali was “under the influence” as required in sub-part (l)(a). Officer Cline testified about the results of two field sobriety tests, the odor of an intoxicating beverage and his initial observation of Ali’s driving. When considering the evidence of the In-toxilyzer result in conjunction with the overall proof presented against Ali, it is our opinion that it was not an abuse of the trial court’s discretion to admit the evidence.

III. DID THE TRIAL COURT ERR IN OVERRULING ALI’S MOTION FOR DIRECTED VERDICT?

¶ 18. Ali claims that the trial court should have granted a directed verdict because the State failed to prove Ali had been convicted twice by the Tennessee courts of a violation of Mississippi law and the State failed to amend its indictment to conform with the proof. However, when the prosecution admitted certified abstracts of Ali’s prior convictions, Ali’s counsel was given an opportunity to object to the evidence and said, “I have no objections. Those were provided to me in discovery. That’s fine.” Clearly, this matter would be procedurally barred.

¶ 19. Ali also argued that he was entitled to a directed verdict because the State did not have an expert testify regarding the results of the Intoxilyzer test. Since we remand this case for a new trial, any error on this issue in the previous trial is not outcome determinative. Hence, we will not address it at this time.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY IS REVERSED AND REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


text:
    The CITY OF VICKSBURG, Appellant v. Dewayne L. WINTERS, Appellee.
    No. 2005-CC-00795-COA.
    Court of Appeals of Mississippi.
    May 2, 2006.

      Walterine Langford, Bobby D. Robinson, Nancy Davis Thomas, Vicksburg, attorneys for appellant.
    Dewayne L. Winters, Appellee, pro se.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. This case is on appeal from the Circuit Court of Warren County granting unemployment benefits to Vicksburg firefighter Dewayne Winters. Winters was suspended without pay by the City of Vicksburg following his arrest for domestic violence while on the job. The Mississippi Employment Security Commission denied Winters’ unemployment benefits based on misconduct. The circuit court reversed the Commission and granted Winters unemployment benefits. Finding that the actions of Winters rose to the level of misconduct, we reverse and render.

FACTS

¶ 2. The record in this case is very limited. Only the appellant filed a brief in this case.

¶ 3. Dewayne Winters was suspended indefinitely on March 3, 2004, from the City of Vicksburg Fire Department for an arrest that stemmed from a domestic violence incident that occurred on March 2, 2004, while on duty. Prior to this suspension, Winters had been employed by the City for twelve years and ten months. Winters had been a good employee of the fire department during his entire time of employment until this incident.

¶ 4. On March 2, 2004, Winters received a telephone call from Doris Patton with whom he had been romantically involved concerning a child to which she had given birth. Winters informed Patton that he was at work and did not want to discuss the child at that time. At some point in the day, Patton presented herself at the fire station and insisted on talking with Winters. Winters and Patton went outside the station to discuss the matter, where Patton began to hit Winters. During the altercation, Patton picked up a mop handle and began to strike Winters with it. Winters took the mop handle away from Patton and struck her with it. Patton left the fire station at this time.

¶ 5. Later in the evening Patton returned to the fire station. When she returned, Patton informed Winters that she had been injured when he struck her and showed him the wound. Winters and a coworker bandaged the injury. Winters and Patton apologized to each other and Patton left.

¶ 6. After leaving the fire station the second time Patton proceeded to the Vicksburg Police Department where she filed a complaint for domestic violence. Winters was arrested and charged.

¶ 7. On March 3, 2004, Winters was suspended indefinitely. Following this suspension Winters applied for unemployment benefits which were denied by the claims examiner based on misconduct. Winters appealed the denial and a hearing was held by an appeals referee of the Mississippi Employment Security Commission. The referee affirmed the denial based on Winters’ physical strength being superior to that of Patton. The referee reasoned that once Winters obtained control of the mop handle he went on the offensive. This offensive action by Winters against Patton shows a disregard of the standard of behavior expected by the City from its employees and was disqualifying misconduct.

¶ 8. In its opinion, the lower court held that the City had failed to meet its burden of proof that the actions by Winters rose to the level of misconduct that “seen by a fair-minded reasonable person as a willful and wanton disregard of the employer’s interest.” The court held that the evidence showed that Winters’ actions amounted to unsatisfactory conduct and an isolated incident in poor judgment. From this ruling the City appeals raising numerous issues. This Court has combined the issues into one single issue:

DID THE TRIAL COURT ERR IN RULING THAT WINTERS’ ACTION DID NOT AMOUNT TO MISCONDUCT

DISCUSSION

¶ 9. In reviewing an administrative agency’s findings and decisions, the standard of review by this Court is well settled:

An agency’s conclusions must remain undisturbed unless the agency’s order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights. A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the agency.

Lewis v. Miss. Employment Sec. Comm’n, 767 So.2d 1029, 1030-31(¶ 9) (Miss.Ct.App.2000).

¶ 10. The City’s primary argument is that Winters’ actions on March 2, 2003, rose to the level of misconduct. We note that Winters failed to file a brief in this matter. We have “no obligation to look to the record to form an opinion against the appellant where the appellee has filed no such brief outlining his opposing position.” Joseph v. Miss. Employment Sec. Comm’n, 771 So.2d 410, 412(¶ 7) (Miss.Ct.App.2000); see also Selman v. Selman, 722 So.2d 547, 551(¶ 13) (Miss.1998); Dethlefs v. Beau Maison Dev. Corp., 458 So.2d 714, 717 (Miss.1984). The failure of the appellee to file a brief may be “tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of appealing party, that there was no error.” Dethlefs, 458 So.2d at 717.

¶ 11. The referee’s opinion cites to Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982), for a definition of the term “misconduct:”

[T]he meaning of the term “misconduct,” as used in the unemployment compensation statute, was conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences [sic] and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.

The burden of proving misconduct connected with work is upon the employer. Miss.Code Ann. § 71-5-513 A(l)(c).

¶ 12. In its order the Circuit Court of Warren County stated that the employer did not meet the burden required to prove disqualifying misconduct. The trial court determined that the actions of Winters amounted to unsatisfactory conduct and poor judgment but not misconduct. We do not agree.

¶ 13. The referee’s opinion states in part:

The claimant was discharged because he engaged in a physical altercation with an individual on the employer’s premises.
The Referee is of the opinion that his physical strength was superior to that of the individual attacking him as demonstrated by his ability to take the mop handle away from his attacker. Once he gained control of the mop handle, he then went on the offensive. He could have called for his coworkers to assistant [sic] him instead of striking her. His striking this individual with a mop handle does show a disregard of the standard of behavior which the employer has the right to expect. His actions do show misconduct as that term is defined.

¶ 14. The board of review agreed with the referee, and we find no error in this determination. We find that the actions of Winters in striking Patton with the mop handle amounted to misconduct and was behavior that the City should expect its employees to avoid; thus, we reverse the trial court’s decision.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . Effective July 1, 2004, the name of the Mississippi Employment Security Commission changed to the Department of Employment Secürity, Office of the Governor. Miss.Code Ann. Section 71-5-11(f) (Supp.2005).


text:
    Willie PITTMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02133-COA.
    Court of Appeals of Mississippi.
    May 2, 2006.

      Wesley Thomas Evans, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Willie Pittman was convicted of one count of murder and one count of manslaughter in the Circuit Court of Yazoo County on January 9, 2003. Pittman was sentenced to serve a term of life imprisonment and a term of ten years, which shall run consecutively. Aggrieved by the trial court’s ruling, Pittman appeals raising the following four issues:

I. WHETHER THE COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT’S MOTION FOR DNA TESTING.
II. WHETHER THE COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO GRANT A DIRECTED VERDICT.
III. WHETHER THE COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO EXCLUDE HIGHLY PREJUDICIAL TESTIMONY ABOUT HAIR ON THE BOTTOM OF THE CAR BUMPER.
IV. WHETHER THE TRIAL COURT SHOULD HAVE GRANTED A MISTRIAL WHEN THE STATE MADE REFERENCE TO THE DEFENDANT AS A “DOPE DEALER” DURING CLOSING ARGUMENTS.

¶ 2. Finding no error, we affirm.

FACTS

¶3. Mary Ann Sheppard’s body was found on September 3, 2001, in Yazoo County. Sheppard had been stabbed repeatedly and had been run over. Sheppard was pregnant at the time of the murder. Investigators executed a warrant and seized the car Willie Pittman was driving, and observed that the car had been recently washed, and blood appeared to be under the car. Pittman was indicted on one count of murder and one count of manslaughter. This case went to trial in Yazoo County on January 7, 2003. Grover Wilson testified at trial that on September 2, 2001, the night prior to the incident, around 6:00 p.m. Sheppard came to his home in Yazoo City. He went further to state that Pittman arrived at his home later that night, and eventually around 5:00 a.m. on September 3, 2001, he saw Sheppard leave with Pittman in a gray-looking car. Another witness testified to having seen Sheppard with Pittman in the same car around 6:00 a.m. at the Jr. Food Mart. Pittman’s cousin Katrina Rogers testified that Pittman left his house around 11:45 p.m. on September 2, 2001, and did not return until about 6:30 a.m. the next day. Rogers also told the jury that when Pittman arrived home that morning he took a bath, changed his clothes and placed the clothes he had been wearing in the washing machine.

¶4. Dr. Steven Timothy Hayne performed the autopsies on both Sheppard and the fetus. Dr. Hayne was accepted by the trial court as an expert in the field of forensic pathology. He testified that Sheppard died of puncture wounds to the neck consistent with being inflicted by a knife. She had a total of ten stab wounds and seventeen slash wounds. Dr. Hayne also determined that Sheppard’s body had many fractures and abrasions consistent with having been run over by an automobile. Dr. Hayne explained that Sheppard was pregnant with a viable fetus weighing approximately six pounds, and the fetus’s death was a result of the death of the mother. The State also admitted evidence that DNA analysis established that the blood taken from the undercarriage of Pittman’s car matched Sheppard’s. At the conclusion of the trial, the jury returned a verdict of guilty.

LEGAL ANALYSIS

I. WHETHER THE COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT’S MOTION FOR DNA TESTING.

¶ 5. Pittman asserts that the trial court committed reversible error when it did not conduct DNA testing of fingernail scrapings from Sheppard. However, no motion was brought before the trial court to allow this opportunity. On October 31, 2002, Pittman filed a motion for lab testing and DNA analysis, but Pittman did not bring this motion before the court. In Mississippi the movant has the burden to pursue- a motion to hearing once it is filed in accordance with Rule 2.04 of Circuit and County Court Practice. Roy v. State, 878 So.2d 84, 89(¶ 23) (Miss.Ct.App.2003). The trial judge is not charged with the duty to know of every paper filed with the clerk. Dyer v. State, 300 So.2d 788, 789 (Miss. 1974). The movant is not to allow the motion to remain dormant. Burcham v. Burcham’s Estate, 303 So.2d 476, 480 (Miss.1974).

¶ 6. However, even if Pittman’s argument., was not procedurally barred, this would not-result in reversible error. The State is not required to pay for DNA testing unless there is a showing that it would significantly aid the defense. Richardson v. State, 767 So.2d 195, 198(¶ 12) (Miss.2000). Pittman provided no evidence- that the fingernail scrapings would have provided any exculpatory value. Pittman questioned Amy Winters, a DNA analyst from the Mississippi Crime Lab, on cross-examination regarding the fingernail scrapings. Winters explained that fingernail scrapings are typically unreliable, especially when compared to blood swabs. The State’s duty is to preserve the evidence that is expected to play a significant role in the suspect’s defense. Clay v. State, 829 So.2d 676, 684(¶20) (Miss.Ct.App.2002). The standard for constitutional materiality is not satisfied by mere possibilities that the evidence will help the defense. Jackson v. State, 766 So.2d 795, 801(¶ 10) (Miss.Ct.App.2000). Therefore, Pittman’s issue regarding the fingernail scraping is without merit.

II. WHETHER THE COURT COMMITTED REVERSIBLE ERROR WHEN IT' REFUSED TO GRANT A DIRECTED VERDICT.

¶ 7. Pittman argues that the State did not prove he murdered Sheppard, and that a reasonable person could not have found him guilty. The standard of review for deciding whether or not a jury verdict is against the overwhelming weight of the evidence is that this Court mupt accept the evidence which supports the verdict as true and will reverse only if convinced that the circuit court abused its discretion in not granting a new trial. Price v. State, 898 So.2d 641, 652(¶ 26) (Miss.2005). A new trial will not be ordered unless we are convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would be to sanction an unconscionable injustice. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983).

¶ 8. This high standard is necessary because any factual disputes are properly resolved by the jury not by an appeals court. Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). Mississippi has a long standing policy of trusting the jury’s verdict. Waterman v. State, 822 So.2d 1030, 1033(¶ 11) (Miss.Ct.App.2002). Jurors decide the credibility of the evidence and the witness’s testimony; the court has no say with regard to this matter. Id. The testimony of one uncorroborated witness is sufficient to sustain a guilty verdict even if all other witnesses’s testimony is to the contrary. Williams v. State, 512 So.2d 666, 670 (Miss.1987). Therefore, once the jury has returned a guilty verdict, as in the present case, this Court is not at liberty to direct that the defendant be discharged, unless we conclude, after taking the evidence in the light most favorable to the verdict, that no reasonable juror could have found beyond a reasonable doubt that the defendant was guilty of this crime. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). Pittman claims that there was no direct evidence linking him to Sheppard; however, two witnesses testified as to seeing them together on the day prior to the murder and Sheppard’s blood was found on Pittman’s car bumper. “[DJirect evidence is unnecessary to support a conviction so long as sufficient circumstantial evidence exists to establish guilt beyond a reasonable doubt.” Underwood v. State, 708 So.2d 18, 35(¶ 49) (Miss.1998); Fleming v. State, 604 So.2d 280, 288-89 (Miss.1992). We therefore hold that the jury’s verdict was consistent with the evidence presented by the State in this action.

III. WHETHER THE COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO EXCLUDE HIGHLY PREJUDICIAL TESTIMONY ABOUT HAIR ON THE BOTTOM OF THE CAR BUMPER.

¶ 9. Pittman argues that the trial court erred in allowing the hair found on the bumper of his car to be admitted into evidence. Pittman states that the origin of the hair had not been established and that this is purely speculative evidence and should not have been admitted. Although the hair was not tested for DNA, the blood found with the hair on the bumper of Pittman’s car was tested and found to be Sheppard’s blood. The State produced no testimony that the hairs belonged to Sheppard only that the hair and blood were both found on the bumper. The trial court made a ruling to limit the testimony regarding the hair to where it was found. The trial court ordered the State to make no indication that the hair belonged to Sheppard; this was left for the jury to determine. Pittman produced no evidence to this Court that the State did not follow that ruling.

¶ 10. The trial court has great latitude in deciding the admission or exclusion of evidence as to the relevancy. Winding v. State, 908 So.2d 163, 170(¶ 27) (Miss.Ct.App.2005). This Court will not reverse an erroneous exclusion or admission of evidence unless the error adversely affects a substantial right of the accused. Kidd v. State, 793 So.2d 675, 681(¶ 27) (Miss.Ct.App.2001). Although Pittman claims the hair was prejudicial to his case, he provides no support for this. Therefore, this issue is without merit.

IV. WHETHER THE TRIAL COURT SHOULD HAVE GRANTED A MISTRIAL WHEN THE STATE MADE REFERENCE TO THE DEFENDANT AS A “DOPE DEALER” DURING CLOSING ARGUMENTS.

¶ 11. Pittman argues that, since the State referred to him as a “dope dealer” in its closing argument, a mistrial should have been declared. Pittman goes further to state that this reference created unjust prejudice against him. However, the trial court admonished the jury to disregard the statement made by the State. The only reason this Court will reverse on the failure to grant a mistrial is if there was abuse of discretion. Bass v. State, 597 So.2d 182, 191 (Miss.1992). Trial judges are better situated to decide whether or not a trial should be discontinued. Schwarzauer v. State, 339 So.2d 980, 982 (Miss.1976). The trial judge should declare a mistrial when a procedural error results in substantial and irreparable prejudice to the accused. Gardner v. State, 792 So.2d 1000, 1003(¶5) (Miss.Ct.App.2001).

¶ 12. When serious damage does not result, the judge should admonish the jury to disregard the impropriety. Hoops v. State, 681 So.2d 521, 528 (Miss.1996). It is presumed that the jury followed the instruction of the trial judge to disregard the remark. Dennis v. State, 555 So.2d 679, 682-83 (Miss.1989). After the State’s comment calling Pittman a “dope dealer” the judge instructed the jury to disregard that statement. “It is well settled that when the trial judge sustains an objection to testimony and he directs the jury to disregard it, prejudicial error does not result.” Estes v. State, 533 So.2d 437, 439 (Miss.1988). Therefore, Pittman’s issue is without merit.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY OF CONVICTION OF ONE COUNT OF MURDER AND SENTENCE OF LIFE IMPRISONMENT; ONE COUNT OF MANSLAUGHTER AND SENTENCE OF TEN YEARS TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

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