author: ROBERTS, J., for the Court. LEE, P.J.,

text:
    June H. McMURPHY, Appellant v. THREE RIVERS PLANNING AND DEVELOPMENT DISTRICT, INC., Appellee.
    No. 2005-CA-02106-COA.
    Court of Appeals of Mississippi.
    March 20, 2007.
    Rehearing Denied July 17, 2007.

      John S. Hill, Tupelo, attorney for appellant.
    Sidra Patterson Winter, Phillip L. Tutor, attorneys for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. This contractual interpretation case arose from a corporation’s decision to finance the purchase of a retail business. The corporation, MM & K, Inc., did not have sufficient collateral to finance the purchase, so Three Rivers Planning and Development District, Inc., one of the two financing entities, demanded additional collateral from the principal owners. June McMurphy, the mother-in-law of Harley Boone, one of MM & K’s principal owners, intended to aid her son-in-law in his collateral obligation. McMurphy executed a document and assigned 1,552 shares of stock to Three Rivers as Boone’s portion of the additional collateral obligation.

¶ 2. Eventually, MM & K defaulted on its obligation to Three Rivers. Three Rivers intended to liquidate McMurphy’s stock. Three Rivers interpreted the assignment as a pledge of the stock, including any appreciation in value that accrued subsequent to McMurphy’s pledge. McMurphy disagreed. She did not interpret the assignment as inclusive of any appreciation in value. Rather, she interpreted the assignment as a pledge of a specific value of the stock as of the date of the assignment. Unable to resolve their differences, the matter went before the Pontotoc County Chancery Court.

¶ 3. The chancery court agreed with Three Rivers’ interpretation of the assignment. That is, the chancellor interpreted the assignment as a pledge of the stock itself, including any appreciation in value subsequent to the execution date, rather than a pledge of a specific value of the stock, less any appreciation in value. McMurphy appeals and claims the chancellor erred in her interpretation. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 4. Harley Boone and Dennis Pate were the principal owners of a corporation called MM & K, Inc. MM & K sought to purchase Trace Farm Supply, a retail business located in Tupelo, Mississippi. MM & K lacked the capital to purchase Trace Farm Supply outright. To that end, MM & K sought to borrow money from The Peoples Bank and Three Rivers Planning and Development District, Inc.

¶ 5. During July of 1997, The Peoples Bank loaned MM & K $300,000 and Three Rivers loaned it $200,000. However, Three Rivers took a second priority security position to any collateral that would stem from Trace Farm Supply. Because Three Rivers felt under-collateralized, Three Rivers demanded additional collateral from Boone and Pate, individually. Boone’s mother-in-law, June McMurphy, helped Boone with his obligation. McMur-phy executed a document titled “Assignment of Shares of Stock.” Specifically, McMurphy pledged 1,552 shares of Deposit Guaranty National Bank (DGNB) stock. This case focuses on the contractual language of that document. In particular, the issue is whether McMurphy pledged a particular limited dollar amount or whether she pledged the stock itself, including any appreciation in value subsequent to execution of the document.

¶ 6. In any event, during September of 1998, Boone bought out Pate and became the sole owner of MM & K. However, Boone was required to replace Pate’s $100,000 collateral pledge. To accomplish that, McMurphy allowed Boone to present her $100,000 certificate of deposit to People’s Bank. Boone then sent his mother-in-law’s $50,000 certificate of deposit to Three Rivers, which already had McMurphy’s $50,000 DGNB stock assignment.

¶ 7. The record does not indicate exactly when, but at some point after Boone bought out Pate, MM & K defaulted on its loans. Three Rivers sought to liquidate McMurphy’s stock, which appreciated in value subsequent to the assignment. Three Rivers claimed that the assignment granted them a security interest in the stock regardless of the value. Though the stock was valued at slightly less than $50,000 at the time McMurphy executed the assignment, Three Rivers sought to liquidate whatever amount necessary over and above $50,000 necessary to satisfy the deficiency.

¶ 8. McMurphy claimed that the assignment was for no more than $50,000. Accordingly, McMurphy refused to sign over her stock. McMurphy claimed that the assignment only granted Three Rivers a security interest in the stock up to a $50,000 limit.

¶ 9. On July 26, 2004, Three Rivers filed a complaint against McMurphy for mandatory injunction to transfer the shares of stock. McMurphy filed an answer and a counterclaim. Within those pleadings, McMurphy argued that the assignment was ambiguous and that any ambiguity should be resolved against Three Rivers. By her counterclaim, McMurphy submitted that Three Rivers apply $50,000 worth of stock to Boone’s delinquency and deliver any amount over and above $50,000 to her.

¶ 10. On September 28, 2005, the Pon-totoc County Chancery Court conducted a hearing on Three Rivers’ complaint and McMurphy’s countercomplaint. The parties did not submit any testimony during that hearing. Instead, the transcript reflects that counsel for each party argued in chambers, though counsel agreed that the argument would not be on the record. However, the parties submitted several exhibits; in particular, they submitted (a) McMurphy’s first assignment of stock, (b) McMurphy’s second assignment of stock, (c) the deposition of Suzanne Smith, Boone’s ex-wife and McMurphy’s daughter, (d) the deposition of Reed Hillen, the attorney who represented Boone and Pate incident to their purchase of Trace Farm Supply, (e) June McMurphy’s deposition, (f) the deposition of Randy Kelley, the executive director of Three Rivers, (g) the deposition of Mitchell Montgomery, the division director of Three Rivers’ loan division, and (h) Harley Boone’s deposition.

¶ 11. On October 18, 2005, the chancellor rendered judgment on the matter. The chancellor found that, according to the plain language of her stock assignment, McMurphy assigned a certain number of shares, but not a certain dollar value of shares. That is, the chancellor found that McMurphy did not assign a $50,000 maximum of value in the shares. Rather, the chancellor found that McMurphy assigned 1,552 shares as a whole, including any-appreciated value over and above $50,000. Aggrieved, McMurphy appeals.

STANDARD OF REVIEW

¶ 12. Questions concerning construction of contracts are questions of law. Parkerson v. Smith, 817 So.2d 529(117) (Miss.2002). We review questions of law pursuant to a de novo standard. Ellison v. Meek, 820 So.2d 730(¶ 11) (Miss.2002).

ANALYSIS

I. DID THE ASSIGNMENT PLEDGE A NUMBER OF SHARES OR A PARTICULAR DOLLAR VALUE FOR THOSE SHARES?

¶ 13. The sole issue on appeal is whether the language of the assignment granted Three Rivers a security interest in the stock itself, including any appreciation in value that accrued subsequent to the assignment. McMurphy contends that she never intended to pledge more than $50,000. According to McMurphy, Boone had to come up with $100,000 to secure his portion of the July 1997 loan from Three Rivers. McMurphy submits that her assignment covered one half of Boone’s obligation. The relevant document titled “Assignment of Shares of Stock” stated:

FOR VALUE RECEIVED I/we hereby assign to Three Rivers Planning and Development District, Inc., a Mississippi non-profit corporation, 1552 shares of Deposit Guaranty National Bank Stock, held at Three Rivers Planning and Development District, Inc., in the amount of Forty nine thousand six hundred and sixty four ($49,664.00) Dollars, as collateral for a loan to MM & K, Inc.
This assignment shall be a continuing one and shall be effective for any renewals of above loan until same is entirely paid, and shall operate as security for payment of any other debts or liabilities of the undersigned to you now in existence or hereafter contracted.
Three Rivers Planning and Development District, Inc. is hereby authorized to use the proceeds of the above to pay any note or notes representing the unpaid balance of the above loan or loans at maturity or thereafter, with interest and costs, if not otherwise paid.
/s/June H. McMurphy

¶ 14. It seems that McMurphy’s 1,552 shares appreciated to 3,395 shares, though the means of that appreciation is not among the record. Nevertheless, we are called upon to interpret the language from that July of 1997 assignment document.

¶ 15. “The primary purpose of all contract construction principles and methods is to determine and record the intent of the contracting parties.” Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107(¶6) (Miss.2005). As with any contract interpretation case, we follow a three-tiered approach. Id. at (¶ 7). First, we apply the “four corners” test. Id. That is, we look to the language the parties used in expressing their agreement. Id. We read the contract as a whole, so that we give effect to all of its clauses. Id.

¶ 16. The pertinent language of the assignment is not complicated or convoluted. The assignment specifically stated that McMurphy “assignfed] to Three Rivers ... 1552[sic] shares of Deposit Guaranty National Bank Stock ... in the amount of Forty nine thousand six hundred and sixty four ($49,664.00) Dollars, as collateral for a loan to MM & K, Inc.” A fair reading of that language indicates that McMurphy assigned 1,552 shares of DGNB stock to Three Rivers. While the assignment specifies the value of the shares as of the execution of the assignment, no language within the assignment operates to limit the value of the assignment to the value as of that time.

¶ 17. Additionally, the assignment states that “Three Rivers ... is hereby authorized to use the proceeds of the above [the 1,552 shares of DGNB stock] to pay any note or notes representing the unpaid balance of the above loan or loans at maturity or thereafter, with interest and costs, if not otherwise paid.” (emphasis added). That language does not limit the value of the shares at $50,000. To the contrary, this language indicates that Three Rivers may use the proceeds of the DGNB stock to off set any unpaid portion of the loan Three Rivers advanced to MM & K. Nothing in the agreement reads to limit of those proceeds at a $50,000 cap.

¶ 18. McMurphy has continuously stated that she did not intend to advance more than $50,000 as collateral. That may very well be, but we cannot discern that intent from the agreement that she signed. In interpreting the assignment agreement, we are not as concerned with what McMurphy and Three Rivers may have intended as we are with what they said. Facilities, Inc., 908 So.2d at (¶ 6). The reasoning behind this set of priorities is that the words employed in the agreement are the best resource for ascertaining intent and assigning meaning with fairness and accuracy. Id. Accordingly, we are not at liberty to infer intent contrary to that which emanates from the agreement. Id. Because nothing in the language of the assignment limits the value of McMurphy’s DGNB stock to a $50,000 value, we do not find that the chancellor erred. As such, we affirm.

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

MYERS, P.J., CHANDLER AND GRIFFIS, JJ., CONCUR. LEE, P.J., DISSENTS WITH SEPARATE OPINION, JOINED BY KING, C.J., IRVING AND ISHEE, JJ. BARNES AND CARLTON, JJ., NOT PARTICIPATING.

LEE, P.J.,

Dissenting:

¶20. With respect to the majority, I must dissent. The majority affirms the chancellor’s order that “Three Rivers may liquidate sufficient shares of stock to satisfy the outstanding indebtedness, with any surplus to be returned to McMurphy.” After reviewing the language of the assignment and the facts, I find that McMur phy’s intent was to pledge $50,000 collateral, with the stock as security, and nothing more.

¶ 21. In looking at the assignment of stock, the majority finds that the “pertinent language is not complicated or convoluted” and thus relies on the four corners of the assignment to determine the parties’ intent. It is apparent to me that the contract language is ambiguous, and, therefore, we cannot rely on the four corners rule to determine intent. Tupelo Redevelopment Agency v. Abernathy, 913 So.2d 278, 283(¶12) (Miss.2005). In the event that a contract is ambiguous, the subsequent interpretation presents a question of fact for the trier of fact. Id. This Court is not at liberty to infer intent contrary to that emanating from the text at issue. Id. at 284(¶ 12).

If 22. According to the language of the assignment, McMurphy assigned 1,552 shares of DGNB stock, but the assignment also stated that the amount of the stock assigned was $49,664. The assignment is not dated. It is unclear exactly what McMurphy meant to pledge. She could have intended to pledge 1,552 shares of DGNB stock or the exact amount of $49,664 which was mentioned in the assignment. Further, the assignment is silent as to what would happen if there were a stock split, if the bank changed names, or if the stock value dramatically increased, as happened in this case. “Where a contract is silent as to one of its terms, the court is not bound to adopt a construction which is not compelled by the instrument and which no man in his right mind would have agreed to.” Id. at 284(¶ 14). It is not reasonable to believe that McMur-phy would have agreed to pledge all her DGNB stock no matter how much the stock increased in value. It is also not reasonable to believe that she would have pledged stock valued at approximately $49,664 as potential security for the entire amount of a $200,000 loan.

¶ 23. Having found that the contract is ambiguous, the next step is to look at parol or extrinsic evidence to determine the parties’ intent. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 353 (Miss.1990). When the $200,000 loan was taken out, Three Rivers required $100,000 in collateral to secure the indebtedness. Boone pledged a $50,000 certificate of deposit owned by Imogene Boone. To make up the remaining $50,000, McMurphy pledged $50,000 worth of stock. Further, the assignment does not even state for what McMurphy was putting up collateral. The agreement simply states that the assignment was “collateral for a loan to MM & K, Inc.”

¶ 24. According to the canons of statutory construction, since the assignment of stock was prepared by Three Rivers, any ambiguity must be construed against Three Rivers. Id. at 352-53. To allow Three Rivers to recover up to the amount of the outstanding balance of the loan from McMurphy’s stock would be unjust enrichment. Three Rivers, the drafter of the assignment, is using ambiguities in the assignment to take advantage of Ms. McMurphy. It is clear to me that Three Rivers did not intend to receive the assignment of stock as total satisfaction of the outstanding balance in case of a default. If it was Three Rivers’s true intent to take the shares in full satisfaction of the indebtedness, then it would have to take the stock as is, regardless of the value at the time of default. It is unlikely that Three Rivers would have been pleased with this result if the stock had dramatically decreased in value. It would be hard to imagine Three Rivers not demanding the deficiency from McMurphy to make up for the $50,000 payment. Under the majority’s interpretation of the contract, Three Rivers can “have its cake and eat it too.”

¶ 25. Having determined the contract to be ambiguous, I find that the parties’ clear intent shown from extrinsic evidence at the time the assignment of stock was drafted was that McMurphy would be liable for $50,000, nothing more and nothing less. I would reverse and render holding McMurphy liable for the indebtedness up to $50,000.

KING, C.J., IRVING AND ISHEE, JJ., JOIN THIS OPINION.


source: Caselaw Access Project

author: BARNES, J., for the Court.

license: Public Domain

text:
    Timothy CARR, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01301-COA.
    Court of Appeals of Mississippi.
    May 8, 2007.
    Rehearing Denied Sept. 25, 2007.

      Jeannene Pacific, Laurel, Pamela Lynn Huddleston, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   BARNES, J., for the Court.

¶ 1. Timothy Carr was indicted for capital murder in the Jones County Circuit Court, with the underlying felony being robbery, but was convicted of the lesser offense of manslaughter. He was sentenced to serve a term of twenty years. He appeals, asserting five suggestions of error:

(1) The trial court erred in denying his motion to dismiss for speedy trial violations.
(2) The trial court erred in denying his motion to suppress the introduction of the fire extinguisher used to kill the victim.
(3) The trial court erred in denying his motion to suppress his videotaped statement.
(4) The trial court erred in defining reasonable doubt for the jury.
(5) The trial court erred in failing to grant his motion for a directed verdict and in denying his motion for a JNOV.

Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. The victim, Arthur Winston, bought biscuits at a McDonald’s, where he was observed to be carrying “a roll” of currency. He then drove to a V.F.W. post. Timothy Carr was driven to the V.F.W. post by a friend, who observed a parked car which matched the description of the car that Winston was known to drive. Carr was wearing a jacket and pants with camouflage print on them.

¶ 3. Later that day, two people entered the V.F.W. post, and found Winston lying on the floor with wounds to his head. A fire extinguisher with Winston’s blood on it was recovered from some bushes near the V.F.W. post. Testimony by a pathologist established that the fire extinguisher could have been used to cause the cerebral trauma which was the cause of death. Articles of camouflage clothing, with Winston’s blood on them, were recovered from a dumpster at the apartment complex where Carr resided.

¶ 4. Carr gave a videotaped statement, in which he said he had been at the V.F.W., and Winston had made a homosexual overture. Carr said he pushed Winston against a wall, and the force of the impact knocked loose a fire extinguisher, which fell upon Winston’s head. Carr said Winston was breathing when he left the V.F.W. post, and identified other persons whom he suspected of being the true killers. Carr did not testify at trial.

DISCUSSION

(1) THE TRIAL COURT ERRED IN DENYING CARR’S MOTION TO DISMISS OR SPEEDY TRIAL VIOLATIONS

STANDARD OF REVIEW

¶ 5. Review of a speedy trial claim involves a question of fact: whether the trial delay arose from good cause. Flora v. State, 925 So.2d 797, 814(¶ 58) (Miss.2006) (citing DeLoach v. State, 722 So.2d 512, 516(¶ 12) (Miss.1998)). We will uphold the trial court’s finding of good cause if that decision is supported by substantial, credible evidence. Id. (citing Folk v. State, 576 So.2d 1243, 1247 (Miss.1991)). However, if no probative evidence supports the trial court’s findings, we must reverse the decision and dismiss the charge. Ross v. State, 605 So.2d 17, 21 (Miss.1992) (citing Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973)). The State bears the burden of proving good cause for the speedy trial delay, and thus bears the risk of non-persuasion. Flores v. State, 574 So.2d 1314, 1318 (Miss.1990); Nations v. State, 481 So.2d 760, 761 (Miss.1985). Good cause is a factual finding which is not different from any other finding of fact, and thus an appellate court should not disturb the finding when it is based upon substantial evidence identified from the record. McGhee v. State, 657 So.2d 799, 803 (Miss.1995).

¶ 6. In Carr’s brief, he raises only the issue of the constitutional right to a speedy trial, and makes no argument going to the statutory right provided by Mississippi Code Annotated section 99-17-1 (Rev. 2000). The Sixth Amendment to the United States Constitution establishes a right to a “speedy and public trial.” See United States Const. amend. VI. The Supreme Court has observed that “the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage.” Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The federal constitutional right is applied to the states through the Fourteenth Amendment. Id. at 222-23, 87 S.Ct. 988. Additionally, Article 3, section 26 of the Mississippi Constitution of 1890 guarantees a criminal defendant “a speedy and public trial.” This right, as with the federal constitutional right, attaches when a person has been accused, either by way of arrest, indictment or information. Stark v. State, 911 So.2d 447, 450(¶ 6) (Miss.2005).

¶ 7. In Barker v. Wingo, 407 U.S. 514, 529-34, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) the Supréme Court announced a four-part balancing test for determining whether a defendant’s right to speedy trial has been violated. The four factors are (1) length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant. Id. at 530, 92 S.Ct. 2182. The Mississippi Supreme Court has adopted the Barker analysis as applicable to the state constitutional speedy trial right; accordingly, we will consider the constitutional claims together. See Skaggs v. State, 676 So.2d 897, 900 (Miss.1996). For the purpose of the analysis, the conduct of both parties is weighed, and no one factor is outcome determinative. Fleming v. State, 604 So.2d 280, 299 (Miss.1992). The weight which a court gives to each factor depends on the facts of the particular case. Id. This Court has consistently applied the four-part Barker test in cases involving constitutional speedy trial analysis. Price v. State, 898 So.2d 641, 648(¶ 10) (Miss.2005).

¶ 8. This first factor has been called a triggering mechanism because until there is some delay which is presumptively prejudicial, there is no need for an inquiry into the other balancing test factors. Barker, 407 U.S. at 531-32, 92 S.Ct. 2182. Thus there must first be a finding of a “presumptively prejudicial” delay or our inquiry on the issue ends. Id. This analysis is largely a function of mathematics and calendar, with the triggering date in the instant case being the date of the defendant’s arrest. An eight-month delay between arrest and trial has been found to be presumptively prejudicial. Smith v. State, 550 So.2d 406, 408 (Miss.1989). In this case, approximately twenty-eight months elapsed between Carr’s arrest and trial. Therefore, a presumption of prejudice exists.

¶ 9. The second Barker factor is whether the delay is justified. “Once there is a finding that the delay is presumptively prejudicial, the burden shifts to the prosecution to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of these reasons.” DeLoach v. State, 722 So.2d 512, 517(¶ 17) (Miss.1998). Thus, we must determine the reason for the delay and examine the unique circumstances of each case. Stark v. State, 911 So.2d 447, 450(¶ 11) (Miss.2005). The Barker court said that on this factor different weights should be given to different reasons for delay. Barker, 407 U.S. at 531, 92 S.Ct. 2182. A deliberate attempt by the State to delay the trial in order to hamper the defense should be weighted heavily against the State. Id. However, the Supreme Court said that a more neutral reason for the delay such as negligence or overcrowded dockets should be weighed less heavily but should, nevertheless, be considered because “the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Id. In this case, while some of the delay appears attributable to the State due to a delay in scientific testing, Carr did go through several changes of counsel, until finally one of the defense attorneys was elected as the district attorney, which necessitated securing special prosecutors from the Attorney General’s Office. Therefore, we find this factor weighs equally.

¶ 10. The accused’s assertion of or failure to assert the right to a speedy trial is the third of the Barker factors to be considered in an inquiry on whether the speedy trial right was denied. Although a defendant does not have an obligation to bring himself to trial, he will earn “points ... on his side of the ledger” when he has made a demand for a speedy trial. Stevens v. State, 808 So.2d 908, 917(¶ 22) (Miss.2002). In this ease, Carr filed a motion to dismiss the charges against him several weeks prior to the actual trial. In Perry v. State, 637 So.2d 871, 875 (Miss.1994), the Mississippi Supreme Court held that a motion for dismissal for violation of the speedy trial right is not the equivalent of a demand for a speedy trial. In this case, Carr did not assert his right. Therefore, this factor weighs in favor of the State.

¶ 11. The fourth Barker factor is prejudice to the defendant. The Barker court instructed that prejudice to the defendant should be assessed in light of the following interests: (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and concern by the accused due to an unresolved criminal charge, and (3) to limit the possibility that the defense will be impaired. United States v. Loud Hawk, 474 U.S. 302, 312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (quoting United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)). The court said prejudice should be examined in light of these interests of a defendant with the last interest, possible prejudice to the defendant, being the most important. Barker, 407 U.S. at 532, 92 S.Ct. 2182. In this case, while there was a lengthy pre-trial incarceration, there is no assertion, or even suggestion, that the delay caused actual prejudice to Carr’s defense. Therefore, taking the four factors into consideration, we do not find a denial of the constitutional right to a speedy trial, and this issue is without merit.

(2) THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE INTRODUCTION OF THE FIRE EXTINGUISHER

¶ 12. “The standard of review for the admission of or refusal to admit evidence is well-settled: admission or suppression of evidence is within the discretion of the trial judge ' and will not be reversed absent an abuse of that discretion.” Jones v. State, 912 So.2d 501, 504(¶ 6) (Miss.Ct.App.2005) (citing Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So.2d 200, 210(¶ 36) (Miss.1998)). In this case, Carr moved to suppress the introduction of the fire extinguisher because he contended that the chain of custody had been broken, due to an evidence tag inexplicably having come apart from the fire extinguisher. However, the testimony of the investigating officer was that the fire extinguisher was the same one that he had collected and put into the possession of the evidence custodian. There were no fingerprints found on the fire extinguisher because it had been secreted in a patch of weeds and exposed to rain. There was never any suggestion that the fire extinguisher had been tampered with in any way to change its weight or size or any other aspect affecting its potential to be used to kill Winston. Therefore, we cannot say the trial judge abused his discretion in allowing its introduction. This issue is without merit.

(3) THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS CARR’S VIDEOTAPED STATEMENT

¶ 13. Again, the standard of review to admit or refuse the introduction of evidence is abuse of discretion. Jones, 912 So.2d at 506(¶ 6). In this case, the videotape was edited, at Carr’s request, to exclude mention of his prior convictions of robbery. There can be no showing of abuse of discretion. This issue is without merit.

(4) THE TRIAL COURT ERRED IN DEFINING REASONABLE DOUBT FOR THE JURY

¶ 14. The Mississippi Supreme Court has long condemned any definition for the jury as to reasonable doubt, stating that “reasonable doubt defines itself; it therefore needs no definition by the court.” Barnes v. State, 532 So.2d 1231, 1235 (Miss.1988) (quoting Boutwell v. State, 165 Miss. 16, 30, 143 So. 479, 483 (1932)).

¶ 15. In this case, after the jury had retired to deliberate, it sent a note to the trial judge asking to have reasonable doubt re-explained to them in written form. The trial judge called the jury back into the courtroom, and stated the following, without any objection from Carr:

Reasonable doubt is what you as a person based on what your experiences in life and what you have been able to observe from things that you know or have learned through life that cause you to have a reasonable doubt about anything. I can’t tell you what reasonable doubt might mean to you or anyone else. It’s whatever you fell like that whatever is being presented, if you have any doubt about that being reasonable, then you’ve got a doubt about it.
But we’re not even allowed under the law to go into what reasonable doubt is. I may have even gone too far today to try and explain to you what reasonable doubt is. It’s what you think reasonable doubt is. And that’s all I can tell you.

¶ 16. Even if we were to assume that the trial judge invaded the province of the jury with the above quoted comment, which we do not, the issue is procedurally barred due to Carr’s failure to contemporaneously object. See, e.g., Walker v. State, 671 So.2d 581, 587 (Miss.1995); Williams v. State, 863 So.2d 63, 66(¶ 4) (Miss.Ct.App.2003). Therefore, we find this issue barred from appellate review.

(5) THE TRIAL COURT ERRED IN FAILING TO GRANT CARR’S MOTIONS FOR A DIRECTED VERDICT AND FOR A JNOV

¶ 17. A directed verdict and a motion for JNOV challenge the sufficiency of the evidence presented to the jury. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The standard of review is the same: this Court is required “to reverse and render where the facts point overwhelmingly in favor of the appellant that reasonable men could not have found appellant guilty.” McClendon v. State, 852 So.2d 43, 46-47(¶11) (Miss.Ct.App.2002) (citing Baker v. State, 802 So.2d 77, 81(1113) (Miss.1995)). Alternatively, this Court is required to affirm the trial court’s denial “where substantial evidence of such quality and weight exists to support the verdict and where reasonable and fair minded jurors may have found appellant guilty.” Id. at 47. The standard of review requires this Court to consider the evidence in the light most favorable to the State, giving the State “the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Id. All credible evidence supporting the defendant’s guilt should be accepted as true. McClain, 625 So.2d at 778.

¶ 18. In the present case, evidence established that Carr was at the scene of the crime, and clothing similar to that which he was wearing at the scene of the crime was later found in a dumpster at the apartment complex where Carr lived. The clothing had blood on it which was determined to have been the victim’s blood. Further, Carr gave a statement admitting to a physical confrontation with the victim, in which he stated the fire extinguisher “fell” on the victim’s head, rendering Winston unconscious but still breathing. Dr. Steven Hayne, a forensic pathologist, testified that Winston was struck upon the head four times with a heavy object, and of these, one blow was fatal in that it damaged the brain stem, and Winston would have been rendered unconscious but still alive for a short period of time. Reviewing this evidence in the light most favorable to the State, we find substantial evidence to support the verdict; accordingly, this issue is without merit.

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

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


author: GRIFFIS, J., for the Court.

text:
    Marcus MORGAN a/k/a Lil Dub, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01644-COA.
    Court of Appeals of Mississippi.
    Aug. 28, 2007.

      Marcus Morgan, Appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Marcus Morgan appeals the denial of his petition for post-conviction relief. He raises five issues: (1) he was subject to an excessive sentence; (2) the statute under which he was sentenced is unconstitutionally ambiguous; (3) his indictment was fatally flawed; (4) his plea was involuntary; and (5) he was not afforded effective assistance of counsel. We find no error and affirm.

FACTS

¶2. On October 8, 2004, Morgan was indicted for feloniously selling 0.56 grams of cocaine to Josh Moore and Kayla Rich-ey. He entered a plea of guilty to the crime charged in the indictment on June 27, 2005. Following a lengthy plea colloquy, the trial court accepted the plea of guilty. Morgan was then sentenced to serve to thirty years imprisonment with fifteen years suspended, and upon his release from incarceration, he was to serve five years of post-release supervision. Further, he was to pay several fines and restitution.

¶ 3. On January 31, 2006, Morgan filed a motion for post-conviction relief which was summarily denied. It is from this order that he now appeals.

STANDARD OF REVIEW

¶ 4. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

¶ 5. Morgan lists several errors in his claim for post-conviction relief. Although his pro se motion may be inartfully drafted, this Court will address each issue that we have found.

I. Whether Morgan was subject to an excessive sentence

¶ 6. Morgan alleges that he was subject to an excessive sentence, because his sentence was much longer than the statutory maximum. In support of his allegation, he provides this Court with a statute that states that for the crime of possession of a controlled substance in the amount of one-tenth gram but less than two grams has a maximum sentence of eight years. Morgan cites Mississippi Code Annotated § 41—29—139(c)(1)(B) (Rev.2005), which prohibits the possession of a controlled substance.

¶ 7. Morgan pled guilty to and was convicted of selling cocaine, not mere possession. Its punishment, which is greater, is contained in the same statute, but in a different subsection. Miss.Code Ann. § 41—29—139(b)(1). It states that with the exception of marijuana, the sale of cocaine in any amount can result in a sentence of imprisonment of up to thirty years. Id. Morgan was sentenced to thirty years imprisonment with fifteen years suspended. While this sentence contained the maximum, it was still within the limits provided by the legislature. Id.

¶ 8. Generally, if a sentence falls within the limits provided by statute, it will not be disturbed on appeal. Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992). However, where the sentence is “grossly disproportionate” it will be viewed to determine if it violates the Eight Amendment prohibition on cruel and unusual punishment. Id. This sentence is not “grossly disproportionate” and, therefore, is not excessive to the crime committed.

¶ 9. This allegation of error is without merit.

II. Whether the statute under which Morgan was sentenced is unconstitutionally ambiguous

¶ 10. Morgan alleges that the statute under which he was sentenced, Section 41-29-139, is unconstitutionally ambiguous and subject to more than one interpretation. With such a challenge, “[t]he test to be used here is whether the statute defines the criminal offense with sufficient definiteness such that a person of ordinary intelligence has fair notice of what conduct is prohibited.” Lewis v. State, 765 So.2d 493, 499(¶ 25) (Miss.2000) (citing Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513, 525, 114 S.Ct. 1747, 128 L.Ed.2d 539 (1994)).

¶ 11. Morgan’s allegation comes from his misunderstanding of which subsection of Section 41-29-139 contained the punishment for the sale of cocaine. It is clear and unambiguous that Section 41-29-139(b) applies and not Section 41-29-139(c) as Morgan wishes. As stated before, subsection (c) applies only to possession of a controlled substance while, subsection (b) applies to violations of subsection (a). Subsection (a) lists the following unlawful acts: “To sell, barter, transfer, manufacture, distribute, dispense, or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance.” Each subsection clearly states its separate purpose.

¶ 12. We find that “a person of ordinary intelligence” would understand that he could be subject to up to thirty years imprisonment should he be found guilty of the sale of cocaine. Therefore, this allegation of error contains no merit.

III. Whether Morgan’s indictment was fatally flawed

¶ 13. Morgan claims that a litany of errors existed with the indictment and due to them, it was fatally flawed. These errors include: (1) the indictment was stamped filed before the term of court, (2) failure to include a sworn affidavit by the foreman of the grand jury, (3) no caption of the minutes was present on the indictment, (4) the indictment is without judicial jurisdiction, and (5) the indictment failed to state the amount of cocaine.

¶ 14. The general rule is that “a guilty plea waives all defects in the indictment with two exceptions: (1) failure to charge an essential element of a criminal offense and (2) subject matter jurisdiction.” Black v. State, 806 So.2d 1162, 1165(¶ 5) (Miss.Ct.App.2002).

¶ 15. The first two errors alleged have indeed been waived. This Court has held that the first alleged error, a date discrepancy between the term of court and the date of the file stamp, are procedural matters that are waived by entry of a guilty plea. Id. As to the second alleged defect, this Court in Chandler v. State, 883 So.2d 614, 616(¶ 5) (Miss.Ct.App.2004) reaffirmed a prior holding that “an argument asserting defectiveness of an indictment based on the lack of an accompanying affidavit from the grand jury foreman is a non-jurisdictional defect which is Waived” upon entry of a guilty plea.

¶ 16. As to the third error, failure to include a caption of the minutes, neither Morgan nor the State provides any authority for such, a requirement. After a review of Rule 7.06 of the Uniform Rules of Circuit and County Court which provides for the sufficiency of the indictment, we have found no such requirement that the indictment include a caption from the minutes.

¶ 17. As to the fourth allegation, Monroe County only has one judicial district. In such counties with one judicial district, the supreme court has held that the indictment is not required to contain the judicial district. Harris v. State, 757 So.2d 195, 198(¶ 15) (Miss.2000).

¶ 18. The final alleged error is that the indictment failed to contain the amount of cocaine that was sold. There is no such requirement for the sale of cocaine. Waites v. State, 872 So.2d 758, 759(¶ 6) (Miss.Ct.App.2004). Morgan’s confusion probably comes from his mistaken belief that he was being charged with possession, which would require a certain amount to appear on the face of the indictment. As to the sale of cocaine, which was the crime charged, failure to include the amount sold does not fatally flaw the indictment.

¶ 19. None of Morgan’s, alleged flaws in the indictment render it defective. Therefore, the allegation that his indictment was fatally flawed is without merit.

IV. Whether Morgan’s plea was involuntary

¶ 20. Morgan alleges that he was threatened with twenty years imprisonment if he did not enter a plea of guilty. Further, he alleges that he was never informed of the two to eight years sentence he could have received for possession. Once again, Morgan’s allegation is based on his confusion under which subsection he was charged and convicted. Regardless of his confusion, we will determine if this issue has merit.

¶ 21. A guilty plea may not be obtained by “fear, violence, deception, or improper inducements.” URCCC 8.04(A)(3). We have held that the mere fear of the maximum sentence will not render the plea involuntary. Daughtery v. State, 847 So.2d 284, 287(¶ 7) (Miss.Ct.App.2003). In Daughtery, we held that if Daughtery accepted a guilty plea merely because he would avoid a potential sentence of death, the plea would not be rendered involuntary. Id. Having held that the fear of the death penalty, the maximum punishment for an offense, did not create an involuntary plea, we cannot now say that the fear of twenty years imprisonment, a punishment below the maximum, made the guilty plea involuntary.

¶ 22. This issue is also without merit.

V. Whether Morgan was afforded effective assistance of counsel

¶ 23. Morgan’s final allegation of error is that his counsel was so ineffective that it deprived him of his Sixth Amendment right to counsel. Morgan specifically alleges that his counsel was ineffective when he failed to object to a sentence higher than the statutory maximum and failed to object to a defective indictment.

¶24. We have previously addressed each of the underlying issues. The sentence is within the statutory maximum for the sale of cocaine and the indictment was not fatally defective. Further, during the plea colloquy, Morgan stated under oath he was satisfied with his attorney’s performance and felt that it was effective.

¶ 25. To prevail on a claim of ineffective assistance of counsel, Morgan must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Morgan, and we will measure the alleged deficiency within the totality of circumstances. Hiter v. State, 660 So.2d 961, 965 (Miss.1995); Carney v. State, 525 So.2d 776, 780 (Miss.1988). Morgan has not demonstrated how his counsel was ineffective, much less how the deficiency prejudiced his defense.

¶ 26. Morgan’s counsel was not ineffective and, therefore, this allegation is without error.

CONCLUSION

¶ 27. The majority of Morgan’s appeal is founded on his mistaken belief that he should have been sentenced under Section 41-29-139(c). Morgan plead guilty to the sale of cocaine which is sentenced under Section 41-29-139(b). Morgan’s allegations of error contained no merit. Accordingly, the judgment of the trial court is affirmed.

¶ 28. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONROE COUNTY.

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


author: IRVING, J., for. the Court.

text:
    Anthony ROBINSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00799-COA.
    Court of Appeals of Mississippi.
    Oct. 9, 2007.

      Ross R. Barnett, Jr., Jackson, for appellant.
    Office of the Attorney General by Charles W. Maris, for appellee.
    Before MYERS, P.J., IRVING, BARNES and ROBERTS, JJ.
   IRVING, J., for. the Court.

¶ 1. Anthony Robinson was convicted by a jury of forcible rape and was sentenced by the Madison County Circuit Court to serve twenty-five years in the custody of the Mississippi Department of Corrections. Aggrieved, Robinson appeals and asserts that there is insufficient evidence to support his conviction, that his conviction is against the overwhelming weight of the evidence, and that the sentence imposed by the trial court is excessive.

¶ 2. Finding no merit to these allegations of error, we affirm.

FACTS

¶ 3. In the early morning hours on April 29, 2001, Jane Smith was asleep in her apartment in Canton, Mississippi, when she heard someone knock at her door. When Smith inquired as to who was there, a male voice responded, “Junior.” Smith slightly opened the door, expecting her brother, Junior, to be on the other side. The siblings had agreed earlier that evening that Junior would spend the night at Smith’s apartment. Smith testified that when she opened the door, she recognized the man as Robinson, whom she knew from the apartment complex. Smith stated that she demanded that he leave, but he refused. She also 'stated that he began to curse her and that he punched her in the head several times. According to Smith, Robinson then pushed her on the living room couch, climbed on top of her, and raped her. Smith also testified that Robinson choked her when she attempted to push him off of her.

¶ 4. Further, Smith testified that immediately following the rape, Robinson said, “Now I’ll leave,” before threatening to physically assault her if' she called the police. Despite Robinson’s threat, Smith called the sheriffs department, and Deputy Otha Brown was dispatched to her residence. Brown testified that when he arrived at the scene Smith was crying and shaking. He also noticed that Smith had a “scar mark” on her face. Brown drove Smith to the University of Mississippi Medical Center where a nurse, using a rape kit, collected samples for DNA testing. The test revealed that Robinson’s sperm was present in Smith’s vagina.

¶ 5. Brown drove Smith back to her apartment before going to speak with Rob-' inson. Smith testified that shortly thereafter Brown returned to her apartment with Robinson and that she identified Robinson as the man who had raped her. Robinson was subsequently arrested and taken into custody. Smith stated that it was at this time that Brown noticed that a stray hair that matched her hair color was dangling from Robinson’s beard. However, both Smith and Brown testified that Brown did not collect the hair to preserve it as evidence. In addition to speaking with Brown, Smith also gave a written statement to Investigator Eddie Clark. Clark also interviewed Robinson, who told Clark that “[he] wasn’t nowhere near [Smith] that night.” However, Robinson did not inform Clark, as he would testify during trial, that he and Smith allegedly were involved in a romantic relationship and had had sexual relations the day prior to his being charged with raping Smith.

¶ 6. Robinson was living with his aunt, Stella Washington, at the time of this incident. Washington testified that Robinson did not have a 'key to her apartment, so she had to unlock the door for him to enter and lock the door behind him after he exited. Washington testified that on the morning of the incident she opened the door for Robinson around 2:00 a.m. She also stated that Robinson did not leave the apartmént at any other point during the early morning hours. Washington testified that Smith and Robinson had been involved in a relationship, and she offered as proof that Smith had called Robinson at her apartment at least once and that she called Smith’s home on at least one occasion to contact Robinson because he was over there.- However, Washington admitted that she did not have a conversation with Smith on either occasion. Washington also admitted that she had never seen Robinson and Smith together.

¶ 7. Robinson testified that he and Smith were involved in a relationship and that they had had sexual relations on Friday, August 28, 2001. However, he denied seeing Smith on August 29. Robinson testified that Smith had called him shortly after he arrived home during the early morning hours of August 29, 2001. Robinson also testified that he tried to show Brown the caller identification display when he came to arrest him, but Brown would not allow him to do so. However, Robinson admitted that he did not tell anyone at the sheriffs department or the district attorney’s office about this phone call that he claims to have received. Additionally, Robinson stated that he “just went along with the program” and did not tell the officers that his semen would likely be found in Smith’s vagina because he had recently had sex with her. According to Robinson, he told Brown that he and Smith had been in a relationship; however, Brown’s testimony did not corroborate Robinson’s assertion. Additionally, Smith remained steadfast in her testimony that she never had any type of relationship with Robinson and that she only knew him because he lived in the same apartment complex in which she lived.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Sufficiency and Weight of the Evidence

¶ 8. Robinson challenges both the sufficiency and the weight of the evidence used to convict him. Motions for judgments notwithstanding the verdict and motions for directed verdicts challenge the sufficiency of the evidence supporting a conviction. Randolph v. State, 852 So.2d 547, 554(¶ 15) (Miss.2002). On the other hand, motions for a new trial challenge the weight of the evidence supporting a convietion. Townsend v. State, 939 So.2d 796, 803(¶ 35) (Miss.2006) (citing Sheffield v. State, 749 So.2d 123, 127(1116) (Miss.1999)). Accordingly, we address each of these points of contention in turn.

Sufficiency

¶ 9. When reviewing the sufficiency of the evidence, we review the evidence in the light most consistent with the verdict. Lynch v. State, 877 So.2d 1254, 1278(¶ 78) (Miss.2004) (quoting Vaughn v. State, 712 So.2d 721, 723(¶ 7) (Miss.1998)). “We give [the] prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Id. “If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required.” Id. However, if the evidence is “of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.” Id.

¶ 10. In this contention of error, Robinson argues that his conviction must be reversed and rendered because he “was convicted for a statutory violation for which he was not indicted.” The statute listed in Robinson’s indictment is section 97-3-65(3)(a) of Mississippi Code of 1972, as annotated and amended, which provides the penalty for statutory rape, rather than section 97-3—65(4)(a), which lists the elements of forcible rape. We note at the outset that this issue is procedurally barred, as Robinson failed to raise this issue below. “It is well-settled that a trial court will not be found in error on an issue upon which it was never requested to rule.” Conley v. State, 790 So.2d 773, 790(¶ 57) (Miss.2001) (citing Stidham v. State, 750 So.2d 1238, 1242(¶17) (Miss.1999)).

¶ 11. Procedural bar notwithstanding, we find no merit to this issue. As support for his argument, Robinson cites Talley v. State, 174 Miss. 349, 164 So. 771 (1935) for the proposition that “a person cannot be indicted for one offense and convicted of another or convicted of a crime for which he was not charged.” It is well established that the purpose of an indictment is to put the defendant on notice of the charge against him. Ishee v. State, 799 So.2d 70, 76(¶ 18) (Miss.2001) (citing Westmoreland v. State, 246 So.2d 487, 489 (Miss.1971)). In Ishee, the court noted: “We have found that when an indictment cited the statute imposing the penalty rather than the statute containing the elements that the reference to the statute ‘was mere surplusage in the indictment and the appellant could not have been prejudiced by this erroneous reference.’” Id. (quoting White v. State, 169 Miss. 332, 153 So. 387, 389 (1934)). Moreover, the Mississippi Supreme Court has held that “if an indictment reasonably provides the accused with actual notice and it complies with Rule 2.05 of the Unif.Crim.R.Cir.CtPrac., it is sufficient to charge the defendant with the crime.” McNeal v. State, 658 So.2d 1345, 1350 (Miss.1995) (quoting Reining v. State, 606 So.2d 1098, 1103 (Miss.1992)).

¶ 12. The indictment in the present case gave a clear and concise statement of the elements of the crime with which Robinson was charged. The indictment stated that Robinson “did wilfully, unlawfully, feloniously have forcible sexual intercourse with [Smith] in Madison County, Mississippi, in violation of Miss.Code Ann. § 97-3-65(3)(a) (1972, as amended).... ” The fact that the code subsection for forcible rape is actually section 97-3-65(4)(a) (Rev.2006), and subsection 97-3-65(3)(a) provides the penalty for statutory rape is of no, consequence, as Robinson was clearly on notice that he was being charged with forcible rape. Therefore, we find no merit to this allegation of error.

¶ 13. Robinson also argues that “there was insufficient proof of forcible rape.” We disagree. We acknowledge that Robinson and Smith have drastically different depictions of their relationship, or lack thereof. We point out that Smith was adamant immediately following the incident, and at trial, that she had never had a sexual relationship with Robinson. In contrast, Robinson failed to mention to any deputy at the sheriffs department or to anyone at the district attorney’s office that he and Smith had been sexually involved. However, Robinson argues that his “intimate knowledge of Smith’s apartment” proves that he had been in her apartment on more than one occasion. Moreover, Robinson claims that his knowledge of the names of two of Smith’s siblings, coupled with the fact that he has spoken with Smith’s children, provides support for his claim that they had a relationship. The fact that Robinson is familiar with Smith’s apartment, that he knows the names of her brother and sister, and that he has spoken with her children does not, in and of itself, prove that he had a sexual relationship with Smith. Any number of reasons exist to explain how Robinson gained this knowledge, and the jury must have found Smith’s testimony denying any type of relationship more credible than the testimony of Robinson and his aunt. The jury is the ultimate judge of the credibility of witnesses and this Court will not set aside a jury’s decision when it is supported by substantial and believable evidence. Nicholson v. State, 523 So.2d 68, 70-71 (Miss.1988). When faced with conflicting testimony, reasonable persons clearly might find one witness more credible than another. This issue is without merit.

Weight

¶ 14. “It is well established that matters regarding the weight of the evidence are to be resolved by the jury.” Brown v. State, 829 So.2d 93, 103(¶ 22) (Miss.2002) (citing Neal v. State, 451 So.2d 743, 758 (Miss.1984)). This Court will reverse a conviction only upon finding that the trial court abused its discretion in denying the motion for a new trial. Id. (citing Sheffield, 749 So.2d at 127(¶ 16)). “A new trial will not be granted unless the verdict is so contrary to the overwhelming weight of the evidence that an unconscionable injustice would occur by allowing the verdict to stand.” Id. (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)). We view evidence in the light most favorable to the jury verdict, giving the State “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Id.

¶ 15. Accepting as true all of the evidence that supports Robinson’s conviction, allowing his conviction to stand does not sanction an unconscionable injustice. As previously discussed, Smith was clear in her testimony that Robinson raped her on the night in question and that she had never been sexually involved with Robinson. Robinson failed to offer any evidence to contradict her testimony other than his mere assertions to the contrary and Washington’s testimony that Robinson was at her home around 2:00 a.m. The jury was entitled to believe whomever it found more credible. We find no merit to this allegation of error.

2. Sentence

¶ 16. Robinson contends that his sentence is manifestly disproportional and violative of the Eighth Amendment to the United States Constitution and to the Constitution of Mississippi. “The imposition of a sentence is within the discretion of the trial court, and this Court will not review the sentence, if it is within the limits prescribed by statute.” Reynolds v. State, 585 So.2d 753, 756 (Miss.1991) (citing Reed v. State, 536 So.2d 1336, 1339 (Miss.1988)). “Further,'the general rule in this state is that a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.” Fleming v. State, 604 So.2d 280, 302 (Miss.1992) (citing Adams v. State, 410 So.2d 1332, 1333-34 (Miss.1982)). Mississippi Code Annotated section 97-3-65(4)(a) (Rev.2006) provides a penalty of life imprisonment, if so prescribed by the jury, and in instances where the jury declines to impose a life sentence, the trial court, in its discretion, may sentence the defendant to any term as it may determine. The trial judge sentenced Robinson to serve twenty-five years.

¶ 17. The Fleming court also held that “this Court will review a sentence ... where it is alleged that the penalty imposed is disproportionate to the crime charged.” Id. (citing Ashley v. State, 538 So.2d 1181, 1184-85 (Miss.1989)). That is the allegation made by Robinson.

¶ 18. In Hoops v. State, 681 So.2d 521, 538 (Miss.1996) the Mississippi Supreme Court considered whether a sentence was proportional pursuant to the three-pronged analysis in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In doing so, the court acknowledged that Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) clearly establishes that the Solem analysis “is to apply only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality.’ ” Hoops, 681 So.2d at 538 (quoting Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir.1996)). In Harmelin, the United States Supreme Court rejected the notion that the Eighth Amendment contains a proportionality guarantee and held that: “Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee.” Further, the Court held:

Solem is best understood as holding that comparative analysis within and between jurisdictions is not always relevant to proportionality reviéw. The Court stated that “it may be helpful to compare sentences imposed on other criminals in the same jurisdiction,” and that “courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions.” Id. at 291-292, 103 S.Ct. 3001 (emphasis added). It did not mandate such inquiries.
A better reading of our cases leads to the conclusion that intrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross dispropor-tionality.

Harmelin, 501 U.S. at 1004-05, 111 S.Ct. 2680.

¶ 19. As a result, we will not conduct a Solem analysis absent an initial showing of gross disproportionality. This issue is without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF FORCIBLE RAPE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . The victim's name has been changed to protect her identity.

      . At trial, both sides stipulated that "the biological evidence was conclusive that [Robinson’s] sperm was found in [Smith’s] vagina.”

      .Brown testified that Smith identified Robinson while he was escorting Robinson to his patrol car.

      . It is somewhat puzzling that Robinson couches this issue in terms of sufficiency of the evidence. It is clear that his argument is that the indictment failed to give him notice of the charge against him because he was indicted for one crime but convicted of another.

      . Rule 2.05 of the Uniform Criminal Rules of ' Circuit Court Practice is now Rule 7.06 of the Uniform Rules of Circuit and County Court. Rule 7.06 provides, in part, that an indictment "shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.”

      . In Solem, the United States Supreme Court used a three-factor analysis to determine whether a sentence is disproportionately harsh so as to violate the Eighth Amendment prohibition against cruel and unusual punishment: (1) the gravity of the crime, (2) comparison with sentences imposed on other 'defendants for the same crime in the same jurisdiction, and (3) comparison with sentences imposed in surrounding jurisdictions. Solem, 463 U.S. at 292, 103 S.Ct. 3001.


text:
    Henry L. MADISON, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Christopher Epps, Commissioner, Dr. John Bearry, Medical Director, and Dr. Juan Santos, Assistant Director, Appellees.
    No. 2006-CP-01639-COA.
    Court of Appeals of Mississippi.
    Oct. 9, 2007.
    Henry L. Madison, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellees.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   BARNES, J., for the Court.

¶ 1. Henry L. Madison, a prisoner of the Mississippi Department of Corrections (MDOC), had his suit for negligence dismissed for want of prosecution. He appeals. However, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 19, 2004, Madison, an inmate of MDOC being held in Lauderdale' County, filed a suit alleging that he suffered injury because he was negligently denied proper medical treatment. He named as defendants various employees of MDOC. Madison filed the complaint pro se. On July 20, 2004, Madison asked that the court appoint him counsel, which the court denied. On September 3, 2004, the MDOC defendants answered the complaint denying all the substantive allegations. Nothing further was filed until April 7, 2005, when Madison filed a document styled “Brief in Support of Motion to Vacate and Set Aside Conviction and Sentence.” The pleading set forth arguments typical of a motion for post-conviction relief, such as his guilty plea was not knowingly, voluntarily and intelligently entered and he received ineffective assistance of counsel. The document was filed under the same cause number as his negligence filing. Nothing further happened in the case until more than a year later, when on July 13, 2006, the circuit court clerk sent the parties a clerk’s motion to dismiss for want of prosecution pursuant to Rule 41(d) of the Mississippi Rules of Civil Procedure. The notice advised the parties that the case would be dismissed unless there was some action of record or written application to the court evidencing good cause why the case should not be dismissed. No action was taken by Madison, and by order filed August 24, 2006, the case was dismissed without prejudice for want of prosecution. From this dismissal, Madison timely filed his appeal requesting and being given informa pauperis status.

STANDARD OF REVIEW

¶ 3. In a recent pronouncement regarding the rule, the supreme court held that the standard we should apply when reviewing a Rule 41(d) dismissal should be the same that the court applies with respect to a review of a discovery violation, that is, abuse of discretion. Cucos, Inc. v. McDaniel, 938 So.2d 238, 242 n. 1 (Miss.2006). The court stated,

[discovery violations and stagnant cases are similar in at least two ways. From statutes related to each, the Court has indicated a policy favoring consideration on the merits as well as a policy protecting a trial court’s ability to maintain control over procedural resolution when not dictated by statute or this Court.

Id. (citations omitted); see also Watson v. Dillard, 493 So.2d 1277, 1278 (Miss.1986) (holding that the ability to dismiss for lack of prosecution is a means to assist in achieving the orderly expedition of justice and for trial courts to control their own dockets).

DISCUSSION

¶ 4. In his appellate brief Madison discusses the merits of his claim of negligence. He makes no explanation regarding why he let his pleading lag on the docket of Lauderdale County without taking action. As our review is limited to whether the trial court abused its discretion when it dismissed his ease for want of prosecution, Madison’s brief is of no assistance.

¶ 5. Rule 41(d) of the- Mississippi Rules of Civil Procedure allows the court clerk to move for dismissal of cases in which there has been no action of record or good cause shown for delay during the proceeding twelve months. The clerk must give notice to the parties who must respond in order to retain the case on the court’s docket. If no action is taken by the parties within thirty days, then the court shall dismiss the case without prejudice. M.R.C.P. 41(d).

¶ 6. The case was filed by Madison on April 19, 2004, and was properly answered by the defendants. Madison’s next filing on April 7, 2005, was in the nature of a motion for post-conviction relief and unrelated to the claims of negligence in his original pleading. Fifteen months after Madison’s last pleading on July 13, 2006, the Circuit Clerk of Lauderdale County followed Rule 41(d) and filed a clerk’s motion to dismiss for want of prosecution which was properly served upon the parties. Nothing was filed by Madison within the thirty-day time limit showing good cause why the case should remain on the docket. On August 24, 2006, the trial judge followed Rule 41(d), granted the clerk’s motion and dismissed the case for lack of prosecution.

¶ 7. The trial court clearly did not abuse its discretion in dismissing the case. Both the clerk and the court followed the requirements of Rule 41(d) to the letter. The facts of this case show that the court actually had no discretion. Madison gave no response to the clerk’s motion as to why his case should not be dismissed for lack of prosecution; so the circuit court had no choice but to dismiss the action under the mandatory “shall dismiss” language of the rule. Further, Madison has made no argument to this Court as to why the lower court was in error in dismissing his case. He says that he wrote a letter to the circuit clerk in 2005 asking about the status of his case but never received a reply. However, there is no such letter in the court file. We find no abuse of discretion on the part of the trial court, which we find correctly followed the rules of civil procedure and dismissed Madison’s cause.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

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


author: MYERS, P.J., for the Court.

text:
    Sandra D. DEAR, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01560-COA.
    Court of Appeals of Mississippi.
    Oct. 9, 2007.

      Edmund J. Phillips, Jr., attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   MYERS, P.J., for the Court.

¶ 1. Sandra D. Dear was convicted of the sale of a controlled substance, namely cocaine, in the Leake County Circuit Court. During sentencing, Dear was ordered to serve a term of twenty years in the custody of the Mississippi Department of Corrections. Dear appeals her conviction and asks the court:

WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW JURY INSTRUCTION D-7?

Finding no error, we affirm.

DISCUSSION

¶ 2. Larry Gardner, a confidential informant, testified as the principal witness against Dear. Informant Gardner identified Dear in court. Gardner further testified that he purchased drugs from Dear inside her home on January 3, 2005. Dear requested several jury instructions at the close of trial. The trial judge denied Dear’s D-7 jury instruction, finding it lacked evidentiary support. Dear objected on the record to the denial of the requested jury instruction. The jury instruction at issue reads, in part, “if ... the State has failed to satisfactorily identify Sandra D. Dear, beyond a reasonable doubt, as the individual who committed the crimes of sale of cocaine, it is your duty to find Sandra D. Dear, ‘not guilty.’ ”

¶ 3. Dear now claims the trial judge erred in failing to allow the D-7 jury instruction which presented her theory of the case. Dear suggests that she was unable to place before the jury the issue of whether she was the source of the cocaine as a result of the denial of the instruction. Dear states further that a reasonable jury could find from the evidence presented that she was not the source of the drugs and as such the D-7 instruction should have been given at trial.

¶ 4. However, the State argues the trial court was correct in denying the instruction at issue because Gardner identified Dear, a person he had known for fifteen years, as the individual from whom he purchased cocaine. Further, the State asserts that the jury is allowed to judge the credibility of the witnesses and that Dear was unable to support hér theory of the case with anything other than her own speculation. The State argues there is no credible evidence that anyone but Dear was the source of the cocaine purchased by Gardner.

¶ 5. An appellate court’s review of jury instructions is analyzed under the following standard. “A defendant is entitled to have jury instructions given which present his theory of the case ... the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Ladnier v. State, 878 So.2d 926, 931-32(¶ 19) (Miss.2004) (citing Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). There is no requirement to present an alternate theory instruction which is unsupported by the evidence and where no reasonable jury could find otherwise. In addition, jury instructions should be read together as a whole when determining whether the court erred in granting or denying the jury instruction in question. Ladnier, 878 So.2d at 931(¶ 19). Finally, in determining which instructions or issues to be presented to the jury, the court must decide “whether there is evidence which, if believed by the jury, could result in resolution of the issue in favor of the party requesting the instruction.” Gill v. State, 924 So.2d 554, 556(¶ 4) (Miss.Ct.App.2005) (citing Walls v. State 672 So.2d 1227, 1230 (Miss.1996)).

¶ 6. In order for Dear to prevail on her appeal, the appellate court must find sufficient credible evidence on the record which supports Dear’s theory of the case, such that a reasonable jury could find that Dear was not responsible for the drug sale. Gill v. State, 924 So.2d at 556(¶ 4) (Miss.Ct.App.2005). Dear suggested at trial she was not the source of the cocaine sold to Gardner. However, Gardner, the primary witness for the prosecution, testified that he purchased drugs from Dear and he positively identified her in court. There was no evidence submitted at trial by Dear to explain an alternate source for the cocaine. As such, the judge determined that the evidence at trial did not support Dear’s requested D-7 jury instruction and properly denied the request. After our review of the record, this court cannot find any evidentiary basis to support Dear’s argument that the trial judge erred in failing to grant the D-7 jury instruction.

¶ 7. Further, jury instruction D-6 sufficiently covered any question as to both whether Dear was the source of the cocaine involved and whether Dear intentionally and consciously sold the cocaine to Gardner. Thus, our review of the record shows that the jury instructions read as a whole were sufficient and denial of the D-7 instruction did not constitute error by the trial court. For the foregoing reasons, we cannot find error in the decision of the trial court in refusing to allow jury instruction D-7 and we affirm the denial of Dear’s motion for new trial.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF THE SALE OF COCAINE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.