author: KING, C.J.,

text:
    Joseph T. DIMAIO a/k/a JT, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00782-COA.
    Court of Appeals of Mississippi.
    Oct. 24, 2006.
    Rehearing Denied March 13, 2007.

      Alison Oliver Kelly, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   KING, C.J.,

for the Court.

¶ 1. On January 24, 2005, Joseph T. Dimaio was convicted by a Tallahatchie County Circuit Court jury of two counts of burglary of a church, two counts of petit larceny, and one count of felony malicious mischief. Dimaio raises the following issue on appeal, which we quote verbatim.

I. APPELLANT WAS DENIED A FUNDAMENTALLY FAIR TRIAL AS GUARANTEED BY THE UNITED STATES CONSTITUTION AND THE MISSISSIPPI CONSTITUTION. BECAUSE:

a) THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT’S MOTION TO SUPPRESS THE WARRANT BASED SEARCH OF THE APPELLANT’S HOME
b) THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT’S MOTION TO SEVER COUNTS 1 AND 2 OF THE INDICTMENT FROM COUNTS 3, 4, AND 5
c) THE TRIAL COURT ERRED BY DENYING APPELLANT’S PROPOSED JURY INSTRUCTION 7(A)
d) THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT’S MOTION TO DECLARE § 97-17-33(2), § 97-17-41(l)(B) AND § 97-17-43(2) [OF THE] MISSISSIPPI CODE OF 1972 (ANN.) VOID

II. THE APPELLANT WAS PREJUDICED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL:

a) THE APPELLANT’S COUNSEL FAILED TO INTERVIEW WITNESS KATHRYN BANKSTON TO DETERMINE THAT SHE WAS NOT AN EYEWITNESS TO EVIDENCE AS HAD BEEN ASSERTED IN THE AFFIDAVIT USED TO OBTAIN A SEARCH WARRANT.
b) THE APPELLANT’S COUNSEL FAILED TO MOVE FOR A CHANGE OF VENUE FOLLOWING NEWSPAPER COVERAGE OF THE CRIME.

Finding no error, we affirm.

FACTS

¶ 2. On May 2, 2004, members of the First Presbyterian Church of Charleston discovered that someone had broken into the fellowship hall and taken a television, a DVD player, and a CD player. William Sanders, a church elder, reported the break-in to the Charleston Police Department. Five days later, the church was broken into again. This time, the church was significantly vandalized. A fire extinguisher had been sprayed all over the nursery, hallway and sanctuary. “God hates you,” was spray-painted on the fellowship hall, and “666” was spray-painted on the altar cloth. Also, pages had been ripped from the pulpit Bible which dated back to the 1800s and was the only item which survived a fire that destroyed the original church. A VCR, a cordless telephone, a lamp, and some flower vases were taken during the May 7 break-in.

¶ 3. Brandon Hodges, an investigator for the Charleston Police Department was assigned to the case. After receiving several tips, Hodges obtained a search warrant to search Dimaio’s home, which was located directly behind First Presbyterian Church. On May 14, 2004, Hodges and Officer John Page executed the search warrant. They found the vases, cordless phone and television that were taken from the church in Dimaio’s home. They also found bank statements and other paperwork as well as the torn and burnt pages from the pulpit Bible in Dimaio’s home. During the execution of the search warrant, Dimaio admitted to Hodges that he had broken into the church, but claimed that he only took some snacks.

¶ 4. Dimaio and his friend, a minor, were arrested for the break-ins. Dimaio’s friend was fifteen years old at the time of the incidents and was processed in youth court. At Dimaio’s trial, the friend testified that he participated in the May 7 break-in with Dimaio. He testified that they sold some of the items that they stole from the church but were unable to sell the television, cordless telephone, vases, and offering plate. The offering plate, however, was put to use as an ashtray, and one of the vases was filled with flowers and given to Dimaio’s mother for Mothers’ Day.

ISSUES AND ANALYSIS

Motion to Suppress

¶ 5. Dimaio argues that the evidence found in his home during the execution of a search warrant should have been suppressed due to the lack of probable cause. The State counters that the issue is procedurally barred because Dimaio failed to include the complained of search warrant in the record. However, the transcript from the hearing on the motion to suppress in which testimony was given regarding the underlying facts and circumstances upon which the search warrant was based has been made part of the record. We will therefore address the issue.

¶ 6. In reviewing a motion to suppress, this Court will only reverse the trial court’s findings if they are clearly erroneous or against the overwhelming weight of the evidence. Walker v. State, 913 So.2d 198, 224-25(¶ 87) (Miss.2005) (citing Hunt v. State, 687 So.2d 1154, 1160 (Miss.1996)). In determining whether the issuance of a search warrant was proper, this Court must determine whether the issuing judge had a substantial basis for determining that, based on the officer’s affidavit of underlying facts and circumstances, probable cause existed to issue the warrant. Petti v. State, 666 So.2d 754, 757 (Miss.1995) (citing Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “Probable cause exists when facts and circumstances within an officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient within themselves to justify a man of average caution in the belief that a crime has been committed and that a particular person committed it.” Id. Probable cause has been defined as “more than a bare suspicion but less than evidence that would justify condemnation.” Foley v. State, 914 So.2d 677, 686(¶ 13) (Miss.2005) (quoting State v. Woods, 866 So.2d 422, 425-26(¶ 11) (Miss.2003)). Whether probable cause exists is based on a totality of the circumstances. Petti, 666 So.2d at 757.

¶ 7. At the suppression hearing, Hodges testified that the underlying facts and circumstances upon which the search warrant was based included the following information. On May 7, 2004 at approximately 1:00 a.m., Haley Heafner was driving home from work and saw Dimaio and his friend in the middle of the street near the church. Kathryn Bankston, a Charleston High School student, had previously seen Dimaio carve “God hates you all” on her ex-boyfriend’s bedroom wall. Hope Cox, another Charleston High School student, told Hodges that Dimaio possessed a CD player that matched the description of the CD player stolen from the church. Finally, on May 13 at approximately 8:00 p.m., Laura Coker, one of Dimaio’s neighbors, witnessed Dimaio exit a black vehicle with its headlights off, retrieve an object from underneath the seat, and enter his home through a hole in the fence running behind his house. The black vehicle proceeded to drive away with its headlights still turned off.

¶ 8. Although the information provided by Coker is tenuous at best, and the information provided by Heafner would be more valuable had Dimaio not lived in such close proximity to the church, we cannot say that the issuing judge did not have a substantial basis for determining that probable cause existed based on the totality of the circumstances. The information obtained by Hodges, when viewed as a whole, would reasonably lead an officer to believe that evidence material to a criminal investigation would be found in Dimaio’s home. Therefore, this issue fails.

Motion to Sever

¶ 9. A trial court’s denial of a motion to sever multiple counts in a single indictment is reviewed for abuse of discretion. Rushing v. State, 911 So.2d 526, 532(¶ 12) (Miss.2005). Mississippi Code Section 99-7-2 (Rev.2000) provides:

Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.

In addition to the five counts of which Dimaio was convicted, the original indictment contained two additional charges stemming from the discovery of marijuana and marijuana paraphernalia in Dimaio’s home during the execution of the search warrant. The trial court severed these two counts, finding that those offenses were not a part of the same acts or transactions involving the church burglaries, nor were they part of a common scheme or plan. The trial court found that the five counts relating to the church burglaries were, however, part of a common scheme or plan.

¶ 10. The supreme court established the following three factors for lower courts to consider when determining whether a multi-count indictment is proper: (1) whether the time period between the occurrences is insignificant, (2) whether the evidence proving each count would be admissible to prove each of the other counts, and (3) whether the crimes are interwoven. Rushing, 911 So.2d at 533(¶ 14) (citing Corley v. State, 584 So.2d 769, 772 (Miss.1991)). At the pretrial hearing on his motion to sever, Dimaio attacked only the time period factor, arguing that since one of the church burglaries occurred on May 2 and the other on May 7, they were too far apart to be part of a common scheme or plan. The Rushing court stated the time factor must be considered together with the totality of events, and that there is no bright line test for determining whether the amount of time is significant or insignificant. Id. at 536(¶ 17). The court went on to find that four counts of prescription forgery which occurred at two separate pharmacies over a five month period were properly charged under a single indictment. Id. at 537(¶ 21).

¶ 11. After reviewing the record, we find that the trial court was correct in finding that the two burglaries, which occurred five days apart and involved the same establishment, as well as both acts of petit larceny and malicious mischief which occurred during the burglaries, were all part of a common scheme or plan. Accordingly, the trial court was correct in refusing to sever counts one and two from counts three, four and five.

Jury Instruction D-7(A)

¶ 12. In reviewing jury instruction issues, this Court reads the instructions together as a whole. Miller v. State, 919 So.2d 1137, 1141(¶ 12) (Miss.Ct.App.2005). No reversible error will be found to exist if, when read together, the instructions correctly state the law and effectuate no injustice. Id.

¶ 13. Refused instruction D-7(A) stated:

This provision is not designed to relieve you from the performance of an unpleasant duty, but is intended to prevent a miscarriage of justice if the evidence fails to prove the original charges of Burglary of a Building Other than a Dwelling, a church, a place of worship, Petit Larceny, and Malicious Mischief, but does justify for the lesser crime of Receiving Stolen Property. However, notwithstanding this right, it is your duty to accept the law as given to you by the Court, and if the facts warrant a conviction of the charges of Burglary of a Building Other Than a Dwelling, a church, a place of worship, in Counts 1 & 3, Petit Larceny in Counts 2 & 4, and Malicious Mischief in Count 5, then it is your duty to make such finding uninfluenced by your power to find a lesser offense.

The trial court refused the instruction for the following reasons; (1) the instruction was not in proper form because receipt of stolen property is not a lesser offense of all three of the distinct crimes listed in the instruction, (2) the instruction lacked evi-dentiary foundation, and (3) the instruction would be confusing and misleading to the jury.

¶ 14. Trial counsel argued that the instruction should be granted as a lesser-related offense instruction, whereas appellate counsel makes a completely different argument. Appellate counsel argues that one cannot be charged with entering a building with intent to steal and stealing that which was intended. We decline to discuss the merits of this new argument since it was not presented to the trial court and has nothing to do with refused instruction D-7(A). Thorson v. State, 895 So.2d 85, 104(¶ 43) (Miss.2004). However, we briefly note that the trial court was correct in refusing any instruction on receipt of stolen property because lesser-related offense instructions should not be granted when, “taking the evidence in the light most favorably to the accused [,] no reasonable jury could find the defendant guilty of the lesser related offense.” Ellis v. State, 778 So.2d 114, 118(¶ 15) (Miss.2000) (citing Giles v. State, 650 So.2d 846, 854 (Miss.1995)). Considering Hodges testimony that Dimaio admitted breaking in to the church, the friend’s testimony relaying a detailed account of the events, together with all of the evidence found in Dimaio’s home, no reasonable juror could have found Dimaio guilty of receiving stolen property. This issue is without merit.

Constitutionality of Mississippi Code Annotated Sections 97-17-33(2), 97-17-41(1)(B) and 97-17-43(2)

¶ 15. Among Dimaio’s post-trial motions was a motion to declare Mississippi Code Annotated Sections 97-17-33(2), 97-17—41(1)(B) and 97-17-43(2) unconstitutional as violative of the Establishment Clause of the First Amendment. Sections 97-17-33(2) sets the maximum penalty for the burglary of any established place of worship at fourteen years of incarceration, whereas the maximum penalty for the burglary of any other non-dwelling building is seven years incarceration. Section 97-17-43(2) sets the maximum penalty for petit larceny committed in an established place of worship at one year imprisonment in the county jail, a fine not to exceed $2,000, or both. The penalty for petit larceny committed elsewhere carries a maximum penalty of six months imprisonment in the county jail, a fine not to exceed $1,000, or both. Dimaio was not charged with violating Section 97-17-41(1)(B), grand larceny of an established place of worship, and therefore has no standing to argue its constitutionality. However, the following analysis applies equally to that statute.

¶ 16. There is a presumption in this state that statutes are constitutional. State v. Watkins, 676 So.2d 247, 249 (Miss.1996) (citing Jones v. Harris, 460 So.2d 120, 122 (Miss.1984)). One challenging the constitutionality of a statute is required to show that the statute is unconstitutional beyond a reasonable doubt. Edwards v. State, 800 So.2d 454, 460(¶ 10) (Miss.2001) (citing Vance v. Lincoln County Dep’t of Pub. Welfare, 582 So.2d 414, 419 (Miss.1991)).

117. The Establishment Clause of the First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion.” U.S. Const., amend. I. “The three main evils against which the Establishment Clause was intended to afford protection [are] ‘sponsorship, financial support, and active involvement of the sovereign in religious activity.’ ” Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (quoting Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)). The statutes in question do not in any way involve religious activity, much less state sponsorship, financial support, or active involvement thereof. The statutes are located in the chapter of the Mississippi Code prohibiting crimes against property. The purpose of the statutes is simply to deter criminal activity. The fact that the statutes in question provide harsher penalties for crimes committed in places of worship does not amount to government endorsement of religion. Rather the harsher penalties reflect a common view that crimes committed in places of worship are more repugnant to the community. Accordingly, we find it unnecessary to conduct a full Lemon test analysis, since it is clear from the face of the statutes that they do not represent government endorsement of religion. This issue is without merit.

Ineffective Assistance of Counsel

¶ 18. Dimaio argues that he received ineffective assistance of counsel due to counsel’s alleged failure to interview a particular witness and seek a change of venue. In an attempt to support his argument, Dimaio attached to his appellate brief appendixes consisting of a newspaper article about the church burglaries and a transcribed telephone conversation between appellate counsel and a trial court witness. However, on January 31, 2006, this Court ordered the appendixes and any references thereto in the brief be stricken as improper since the materials were not admitted into evidence at trial. Dimaio’s claim of ineffective assistance is not proper on direct appeal since he cannot offer any support from the record to substantiate his claim. Wilcher v. State, 863 So.2d 719, 761 (¶ 162) (Miss.2003) (citing Read v. State, 430 So.2d 832, 837 (Miss.1983)). Dimiao’s ineffective assistance claim may be properly addressed in a post-conviction relief proceeding, where he will have the benefit of post-trial affidavits to support his argument. Havard v. State, 928 So.2d 771, 786(¶ 18) (Miss.2006).

¶ 19. THE JUDGMENT OF THE TALLAHATCHIE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I BURGLARY OF A CHURCH AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, COUNT II PETIT LARCENY AND SENTENCE OF ONE YEAR IN THE TALLAHATCHIE COUNTY JAIL, COUNT III BURGLARY OF A CHURCH AND SENTENCE OF FIVE YEARS ON POST-RELEASE SUPERVISION, COUNT IV PETIT LARCENY AND SENTENCE OF ONE YEAR IN THE TALLAHATCHIE COUNTY JAIL, COUNT V FELONY MALICIOUS MISCHIEF AND SENTENCE OF FIVE YEARS POST-RELEASE SUPERVISION, WITH COUNTS I, III, AND V TO BE SERVED CONSECUTIVELY AND COUNTS II AND IV TO BE SERVED CONCURRENTLY WITH COUNT I IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., SOUTH-WICK, IRVING, CHANDLER, GRIF-FIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . Regarding the trial court’s determination that the instruction lacked foundation in the evidence, Dimaio's mother did testify that she let her son borrow money to purchase a television, telephone, and two vases from his minor friend. However, the court noted that no evidence was presented to show that Dimaio only received the DVD player, CD player, VCR, bronze lamp, or paperwork.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Jamieson Yul MAGEE, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00610-COA.
    Court of Appeals of Mississippi.
    March 6, 2007.

      Brian Bienvenu Alexander, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Jamieson Yul Magee was indicted on March 17, 2003, by a two count indictment for the transfer of a controlled substance, pursuant to Mississippi Code Annotated section 41—29—139(a)(1) (Supp.2003). Ma-gee was sentenced to serve fifteen years for each count, with both sentences to run consecutively, all in the custody of the Mississippi Department of Corrections (MDOC). He asserts the following issues for this Court’s review:

I. Whether the trial court erred by not granting either a new trial or a judgment notwithstanding the verdict.
II. Whether the verdict was against the overwhelming weight of the evidence.
III. Whether the trial court erred in failing to sustain a motion to quash the venire.
IV. Whether the trial court erred in sentencing the defendant as a habitual offender in light of the constitutional prohibition against cruel and unusual punishment.

Finding no error, we affirm.

FACTS

¶ 2. Jamieson Yul Magee was indicted on March 17, 2003, by a Hancock County grand jury on two counts of transfer of a controlled substance. On October 8, 2003, the jury returned a guilty verdict on both counts and he was sentenced to serve fifteen years for each count. Magee made a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial on December 17, 2003. The court denied this motion on October 19, 2004.

¶ 3. Magee was arrested for the transfer of a controlled substance. Peggy Vaughn, the confidential informant used in the matter, contacted the Mississippi Bureau of Narcotics and informed the Bureau that she could purchase controlled substances from Magee. Magee was caught selling crack cocaine to Vaughn on two different occasions. Agent Sean Buchannon of the Bureau was in charge of setting up the transaction. He was responsible for securing the funds for the transaction and for coordinating other specifics that went along with the sale. The sales took place on September 10, 2002, and September 13, 2002.

¶ 4. In this particular case Vaughn was to buy crack cocaine from Magee. Vaughn made a phone call to Magee in an effort to set up the deal. The call was made from a cell phone that had been provided by the Bay-Waveland Narcotics Task Force. Phone records indicate that the call was made to a phone that was registered to Magee. Vaughn also used a vehicle that had been provided by the task force. Agent Buchannon testified the confidential informant was searched for illegal contraband prior to the transaction. The search did not produce any illegal contraband. The State of Mississippi issued $700 worth of “buy money” to Vaughn so she would be able to consummate the transaction. Additionally, she was given a body transmitter and also a microcassette recorder which allowed agents to hear her conversation with Magee. The transactions were recorded on audio and videotape.

¶ 5. The deals were to take place at a residence at the intersection of Bookter Street and Watts Street. Magee instructed Vaughn to come to Smiley’s house to purchase the crack cocaine. Vaughn went to Smiley’s house and purchased the crack cocaine. After she left the house, she met with Agent Buchannon and gave him the crack cocaine she had purchased and issued a statement to him. Agent Buchan-non then secured the videotapes and audiotapes that were used during the sale. An almost identical series of events transpired for the sale that took place on September 13, 2002.

¶ 6. Magee testified that he was in Jean-erette, Louisiana at the time the sales took place. The defense called witnesses to testify to this alibi. Magee argued that the video footage of the transaction was insufficient to convict him and that the testimony of the confidential informant, Vaughn, should not be believed. He argues that Vaughn’s testimony should not be believed because she is a convicted felon and has admitted to being a user of illegal drugs. He also argues that the trial court erred in failing to sustain his motion to quash the venire and that the trial court was in error when it sentenced him as a habitual offender. Aggrieved, Magee appeals.

ISSUES AND ANALYSIS

I. Whether the trial court erred by not granting either a new trial or a judgment notwithstanding the verdict.

II. Whether the verdict was against the overwhelming weight of the evidence.

¶ 7. Due to their similarity, we will discuss these two issues together. The standard of review for these two issues is deferential to the trial court. The appellate court must accept as true all evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Swann v. State, 806 So.2d 1111, 1117(¶ 25) (Miss.2002). Somewhat similarly, the court may reverse a denial of a judgment notwithstanding the verdict only when the evidence, considered in the light most favorable to the prosecution, is such that “reasonable and fair-minded jurors could only find the accused not guilty.” Franklin v. State, 676 So.2d 287, 288 (Miss.1996) (citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987)). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992). The appellate court should not reverse a guilty verdict unless failure to do so would sanction an unconscionable injustice. Hilliard v. State, 749 So.2d 1015, 1016-17(¶ 10) (Miss.1999). “This Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston v. State, 791 So.2d 273, 280(¶ 14) (Miss.Ct.App.2001).

¶ 8. The State’s evidence indicated that Magee sold crack cocaine to a confidential informant. The Bureau of Narcotics has video and audiotape of the transaction and both suggest that a transfer took place. The informant testified as an eyewitness to the transaction and identified Magee as the seller. Magee alleges that he was in Jeanerette, Louisiana at the time the transaction took place and that he did not make the sale of crack to the confidential informant. Which version of the events to believe was a question of fact that was resolved by the jury. In challenging the sufficiency of the evidence, the issue is whether the evidence, taken in the light most favorable to the state, shows “beyond a reasonable doubt that accused committed the act charged and that he did so under such circumstances that every element of the offense existed.” Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The evidence presented was sufficient to deny Magee’s motion for a judgment notwithstanding the verdict. Therefore, this issue is without merit.

¶ 9. “As distinguished from a motion for a directed verdict or a judgment notwithstanding the verdict, a motion for a new trial asks to vacate the judgment on the grounds related to the weight of the evidence, not sufficiency of the evidence.” Purnell v. State, 878 So.2d 124, 129(¶ 18) (Miss.Ct.App.2004) (citing Smith v. State, 802 So.2d 82, 85-86(¶ 11) (Miss.2001)). It is a fundamental principle of law that a jury verdict will not be disturbed except in the most extreme of situations. Washington v. State, 800 So.2d 1140, 1144(¶ 10) (Miss.2001) (citing Manning v. State, 735 So.2d 323, 333(¶ 10) (Miss.1999)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Walker v. State, 881 So.2d 820, 831(¶32) (Miss.2004) (citing Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998)).

¶ 10. Magee challenges the trial court’s denial of his motion for a new trial, arguing that the verdict was contrary to the overwhelming weight of the evidence. After reviewing the evidence presented by the State in support of Magee’s conviction, we cannot say that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. We find that the facts and reasonable inferences drawn from those facts strongly point toward Magee’s guilt. Any discrepancies in the testimony were issues for the jury to decide. Thus, this issue is without merit.

III. Whether the trial court erred in failing to sustain a motion to quash the venire.

¶ 11. Magee argues that the jury chosen failed to represent his African-American racial heritage. He states that the trial court erred in failing to quash the venire panel because less than three percent of the members of the panel were minorities. He asserts that this is error because seven percent of Hancock County’s population is African-American.

¶ 12. Mississippi Code Annotated section 13-5-2 (Rev.2006) states:

It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity in accordance with this chapter to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose. A citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin, or economic status.

Magee did not present any evidence that would suggest that the jury was not selected at random nor does the record reflect such. The trial court found that the venire was selected at random by a computer program and further found that there was not any evidence present that would show that this system had been manipulated.

¶ 13. Magee directs our attention to the United States Supreme Court eases of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), and Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). In Taylor, the Supreme Court held that the Sixth Amendment right to a trial by an impartial jury of the state and district where the crime has been committed requires that the jury be drawn from a fair cross section of the community. Taylor, 419 U.S. at 531, 95 S.Ct. 692. In Duren, the court promulgated a three-part test for establishing a pri-ma facie case. The defendant must show: (1) that the group alleged to have been excluded must be a distinctive group within the community, (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) that this under representation is due to systematic exclusion of the group in the jury selection process. Duren, 439 U.S. at 364, 99 S.Ct. 664.

¶ 14. After reading Magee’s brief and examining the record we are of the opinion that the Duren test has not been met. It is true that African-Americans are a distinct part of the community; however, nothing suggests that the representation of this group is not fair and reasonable to the number of such persons in the community. Furthermore, Mason presented no evidence, and admitted to having no such evidence, of a systematic exclusion of African-Americans in the jury selection process. Thus, this issue is without merit.

IY. Whether the trial court erred in sentencing the defendant as a habitual offender in light of the constitutional prohibition against cruel and unusual punishment.

¶ 15. We must first note that Ma-gee was sentenced within the statutory guidelines. Additionally, after reviewing the record, Magee’s argument at trial was that he was punished more severely for going to trial and not accepting his plea offer and not that the court violated his rights against cruel and unusual punishment. Because Magee did not initially raise this issue in the trial court, he may not raise it for the first time in this Court. This Court may not consider issues not raised in the trial court. Robinson v. State, 875 So.2d 230, 240(¶ 31) (Miss.Ct.App.2004). Therefore, this issue is procedurally barred.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY OF CONVICTION OF TWO COUNTS OF TRANSFER OF A CONTROLLED SUBSTANCE AND SENTENCE OF FIFTEEN YEARS FOR EACH COUNT TO RUN CONSECUTIVELY WITH EACH OTHER FOR A TOTAL OF THIRTY 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 AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ., CONCUR.


text:
    Annette McKNIGHT, Appellant v. Richard McKNIGHT, Appellee.
    No. 2005-CA-02316-COA.
    Court of Appeals of Mississippi.
    March 6, 2007.

      Leigh A. Rutherford, Hernando, attorney for appellant.
    James McClure, Sardis, attorney for ap-pellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Annette and Richard McKnight divorced in October 2005 on the ground of irreconcilable differences. The parties submitted the division of marital assets to the Chancery Court of Tate County, but Annette, aggrieved by the court’s division of the assets, now appeals. Finding no error, we affirm.

FACTS

¶ 2. Annette and Richard were married June 14, 1980, in Shelby County, Tennessee. The parties have one child, Lee Richard McKnight, who was twenty-one years of age when this matter was heard. The parties divorced on the ground of irreconcilable differences and submitted the division of marital assets to the Chancery Court of Tate County.

¶ 3. The court split the household items up between the two parties. Annette and Richard both kept their respective vehicles and each party was given a 4-wheeler. The court ruled that the marital home was valued at $182,500, a figure that was derived from averaging the appraised values submitted by the parties. The court stated that the marital home was primarily purchased with proceeds from Richard’s pension and granted the home and acreage to him. Annette was granted an equitable lien against the property in the amount of $75,000. Annette was granted all interests in a separate home in which she resided along with the equity of $14,500 and all debt against the home. Escrow proceeds from the residence, which was $16,197.51, and cash in the amount of $9,500 were awarded to Annette. Furthermore, Annette was granted $5,000 from a savings account and was also ordered to assume payment for credit card debt that was in her name. Richard was ordered to pay lump sum alimony in the amount of $500 per month for twenty-four months. He was granted all of his monthly retirement and the proceeds from the sale of the cattle. Each party paid for his or her attorney.

¶ 4. Aggrieved by the decision, Annette appeals and asserts the following issues for this Court’s review: (1) whether the chancellor was manifestly in error in the value placed on the real estate of the marital home, (2) whether the chancellor was manifestly in error in refusing to grant to Annette an interest in the retirement funds of Richard, and (3) whether the chancellor was manifestly in error in the amounts awarded to Annette for equitable distribution of the parties’ property.

STANDARD OF REVIEW

¶ 5. This Court’s standard of review regarding domestic relations matters is a limited one. A & L, Inc. v. Grantham, 747 So.2d 832, 838(¶ 18) (Miss.1999). We will not disturb the findings of a chancellor “unless manifestly wrong, clearly erroneous, or if the chancellor applied the wrong legal standard.” Id.

ISSUES AND ANALYSIS

I. Whether the chancellor was manifestly in error in the value placed on the real estate of the marital home.
II. Whether the chancellor was manifestly in error in refusing to grant to Annette an interest in Richard’s retirement funds.
III. Whether the chancellor was manifestly in error in the amounts awarded to Annette for equitable distribution of the parties’ property.

¶ 6. Due to the similarity of these issues, we will discuss them together. “Marital property is defined as any and all property acquired during the marriage.” Grantham, 747 So.2d at 838(¶ 18) (citing Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994)). Such marital assets are subject to equitable distribution by the chancellor. Id. “In making an equitable distribution of property, a chancellor is not required to divide the property equally.” Humphries v. Humphries, 904 So.2d 192, 198(¶ 24) (Miss.Ct.App.2005) (citing Drumright v. Drumright, 812 So.2d 1021, 1026(¶ 14) (Miss.Ct.App.2001)). The matter is within the chancellor’s discretion, as he has all equities and relevant circumstances in mind and is in the best position to decide such matters. See Pittman v. Pittman, 652 So.2d 1105, 1109 (Miss.1995). A chancellor is responsible for determining the fair market value of the marital assets. Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). When this Court reviews a chancellor’s judgment of property division we “are to review the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion.” Wells v. Wells, 800 So.2d 1239, 1243(¶8)(Miss.Ct.App.2001).

¶ 7. After reviewing the record, there is no evidence that would suggest that the chancellor abused his discretion. The value of the home given by the chancellor appears to have been derived in a fair manner by taking the average of the two parties’ proposed appraisals.

¶ 8. The chancellor also had a logical explanation as to why he allowed Richard to be granted all of his monthly retirement. He found that Richard needed his full retirement to maintain his life and to keep the marital home, which the chancellor noted carried sentimental interest for Richard. His retirement income would also be necessary to borrow the money necessary to pay off Annette’s equity in the marital estate and her share of the marital assets. While the chancellor awarded Richard his full retirement income, Annette received a substantial equity in the marital home, which Richard must pay out of those retirement funds.

¶ 9. Lastly, nothing suggests that the chancellor was manifestly in error in the amounts awarded to Annette for the equitable distribution of the parties’ property. He made findings of fact on the Ferguson factors and then awarded alimony to Annette address any discrepancy in the distribution of assets. Thus, these issues are without merit.

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

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


text:
    Phil R. WALDRUP, Appellant v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.
    No. 2006-CC-00745-COA.
    Court of Appeals of Mississippi.
    March 13, 2007.

      Phil R. Waldrup, Appellant, pro se.
    Albert B. White, Madison, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On September 22, 2005, the Board of Review of the Mississippi Department of Employment Security (Board) issued an order denying unemployment benefits to Phil R. Waldrup. The Circuit Court of Panola County affirmed the Board’s decision. Aggrieved, Waldrup appeals. He asserts the following issues for this Court’s review:

I. Whether substantial evidence supports the Board’s finding that Waldrup voluntarily left his employment with Southern Truck & Refurbishing.
II. Whether substantial evidence supports the Board’s finding that Waldrup failed to show good cause for voluntarily leaving his job.

Finding no error, we affirm.

FACTS

¶ 2. Waldrup was employed as a parts salesman for Southern Truck & Refurbishing (Southern Truck) for approximately one year, ending on June 8, 2005. After Waldrup’s employment with Southern Truck ended, he filed for unemployment benefits with the Mississippi Department of Employment Security (MDES). A claim investigator with the MDES interviewed Waldup and Southern Truck’s general manager, Ken Cupit. The investigator recommended disallowance of unemployment benefits finding that Waldrup failed to show good cause for voluntarily leaving his employment. Upon appeal, a telephonic hearing was conducted by an administrative appeals officer on August 1, 2005.

¶ 3. During the hearing, Waldrup testified to the events which led to his separation from Southern Truck. Waldrup testified that, on June 6, 2005, he had a discussion with Cupit about a possible pay raise or a promotion, but did not get the answer that he wanted. Waldrup further testified that, on June 7, 2005, he did not show up for work because he was “still aggravated” about his discussion with Cupit on June 6. On the morning of June 8, 2005, Waldrup called Cupit and asked whether he could have the remainder of the week off with pay. Cupit did not give Waldrup permission. Later that day, Waldrup showed up at work and turned in his keys. Waldrup testified that, although Cupit never told him that he was fired, when he asked Cupit whether he wanted back the key, Cupit replied that he did.

¶ 4. Cupit testified that he did not tell Waldrup that he wanted the keys and that he did not tell Waldrup that he was fired. Cupit further testified that, had Waldrup not turned in his keys, he could have continued to work for him. Cupit also testified that when Waldrup called him on the morning of June 8, after being absent with no explanation the day before, he told Waldrup that he needed to make up his mind as to whether he wanted to work at Southern Truck. According to Cupit, Waldrup came into work, cleaned out his desk, and asked Cupit whether he wanted the keys. Cupit explained that he replied “I guess” because he assumed Waldrup was quitting.

¶ 5. The administrative appeals officer found that Waldrup voluntarily quit his job with Southern Truck because he was dissatisfied with his pay. The administrative appeals officer further found that, although Waldrup was dissatisfied with his pay, he failed to show “that the job was detrimental to his health, safety, morals, or physical fitness.” Consequently, the administrative appeals officer determined that Waldrup should be disqualified for benefits, as he left his job voluntarily and without good cause, pursuant to Mississippi Code Annotated section 71-5-513(A)(1)(a). The Board affirmed the decision of the administrative appeals officer on September 22, 2005, and on March 24, 2006, the Circuit Court of Panola County affirmed the decision of the Board.

¶ 6. Aggrieved by the circuit court’s decision, Waldrup appeals.

STANDARD OF REVIEW

¶7. This appeal is governed by Mississippi Code Annotated section 71-5-531 (Supp.2006), which provides in part: “[i]n any judicial proceedings under this section, the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” In reviewing an administrative agency’s findings and decisions, a rebutta-ble presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Miss. Employment Sec. Comm’n v. Parker, 911 So.2d 611, 613(¶ 5) (Miss.Ct.App.2005) (citing Lewis v. Miss. Employment Sec. Comm’n, 767 So.2d 1029(¶ 9) (Miss.Ct.App.2000)). This Court “must not reweigh the facts of the case or insert its judgment for that of the agency.” Id.

ISSUES AND ANALYSIS

I. Whether substantial evidence supports the Board’s finding that Waldrup voluntarily left his employment with Southern Truck & Refurbishing.

¶ 8. Waldrup contends that the finding of the Boards that he voluntarily left his employment with Southern Truck is not supported by substantial evidence. Waldrup insists that he was simply asking whether he still had a job with Southern Truck when he made the following statement to Cupit: “I presume you want the keys.” Waldrup asserts that he had his answer that he was discharged when Cupit accepted the keys. Consequently, Waldr-up maintains that he did not quit his job.

¶ 9. The question of whether an employee voluntarily leaves his employment or is terminated is a question of fact to be determined by the MDES. Huckabee v. Miss. Employment Sec. Comm’n, 735 So.2d 390, 394(¶ 14) (Miss.1999) (citing Miss. Employment Sec. Comm’n v. Georgia-Pac. Corp., 394 So.2d 299, 303 (Miss.1981)). If the Board of Review’s findings of fact are supported by substantial evidence and are without fraud, then the findings are conclusive. Richardson v. Miss. Employment Sec. Comm’n, 593 So.2d 31, 34 (Miss.1992) (citing Ray v. Bivens, 562 So.2d 119, 121 (Miss.1990); Melody Manor, Inc. v. McLeod, 511 So.2d 1383, 1385 (Miss.1987)).

¶ 10. During the hearing with the administrative appeals officer, Waldrup admitted that Cupit never told him that he was fired. He also testified that did not go into work on June 7 because he was unhappy that Cupit had not given him a raise or promotion. Waldrup further testified that, on June 8, after Cupit did not grant his request for a week off without pay, Waldrup turned in his keys. Moreover, Cupit testified that he did not request that Waldrup turn in his keys, but accepted the keys when they were offered by Waldrup. Cupit further explained that he did not know what was going on when Waldrup voluntarily cleaned out his desk and subsequently offered Cupit his keys.

¶ 11. Based on the aforementioned testimony, we find that substantial evidence supports the Board’s findings of fact. This issue is without merit.

II. Whether substantial evidence supports the Board’s finding that Waldrup failed to show good cause for voluntarily leaving his job.

¶ 12. Mississippi Code Annotated section 71—5—513(A)(1)(c) (Supp.2006) provides in relevant part that “[t]he burden of proving good cause for leaving work shall be on the claimant.” In the ease sub judice, Waldrup gave no testimony of good cause for voluntarily quitting his job. Although Waldrup testified that he was dissatisfied with not getting a raise and a week off with pay, throughout his testimony, Waldrup maintained that he was discharged from his employment with Southern Truck. Consequently, we find substantial evidence to support the Board’s finding, as upheld by the Circuit Court, that Waldrup failed to show “that the job was detrimental to his health, safety, morals, or physical fitness.” Therefore, we must affirm the decision of the circuit court affirming the findings of the Board. This issue is without merit.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY IS AFFIRMED.

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

      . Effective July 1, 2004, the name of the Mississippi Employment Security Commission changed to the Department of Employment Security, Office of the Governor. Miss.Code Ann. § 71-5-11(f) (Supp.2006).


author: ROBERTS, J.,

text:
    Neil A. GREGORY and Sherry A. Gregory, Appellants v. AUDUBON INDEMNITY COMPANY, Appellee.
    No. 2006-CA-00267-COA.
    Court of Appeals of Mississippi.
    March 13, 2007.

      Jeffrey Dean Leathers, attorney for appellants.
    Denise Wesley, Edward J. Currie, attorneys for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. Neil Gregory was injured at the Sand Creek Dirt Pit in Lee County, Mississippi. Gregory and his wife, Sherry, sued numerous parties, both individually and as their respective business entities. The defendant most relevant to our present purposes was Audubon Insurance Group, the insurance company that issued a commercial general liability insurance policy to Hodges Construction Company, Inc.

¶ 2. The Gregorys claimed that they were entitled to compensation as a third party beneficiary of Hodges Construction Company’s policy with Audubon. Audubon claimed that the Gregorys were not entitled to compensation because the events that led to Neil Gregory’s injuries were excluded from coverage. Consequently, Audubon filed a motion for summary judgment. The circuit court granted summary judgment in favor of Audubon. Aggrieved, the Gregorys appeal. Finding no error, we affirm.

FACTS

¶ 3. On October 8, 1998, Neil Gregory drove his dump truck to the Sand Creek Dirt Pit in Saltillo, Mississippi. Gregory planned to pick up a load of dirt and transport it to the site of a new home construction.

¶ 4. Sand Creek’s loading procedure involved driving a dump truck to the end of the line of waiting trucks and gradually moving forward until one reached the front of the line. At that point, an excavator would place a load of dirt onto the dump truck. Gregory was injured as he waited in line.

¶ 5. By Gregory’s recollection, on October 8th, there was a long line of trucks ahead of him. Larry Moore, an employee of Hodges Construction Company, Inc., operated the dump truck directly ahead of Gregory. As he waited, Gregory decided to check under his hood for oil leaks. Gregory got out of his truck and looked under his open hood. As Gregory looked for leaks, Moore attempted to reposition his truck. In so doing, Moore backed into Gregory and crushed him between the two trucks. Gregory was severely injured.

PROCEDURAL HISTORY

¶ 6. Having retained the firm of Jimmy D. Shelton and Associates, the Gregorys filed a complaint on July 21, 2000, in the Lee County Circuit Court. Neither Hodges Construction nor Audubon were named as defendants. On January 11, 2001, Michael Greer of the firm Greer & Pipkin filed an entry of appearance on behalf of the Gregorys.

¶ 7. On March 9, 2001, the Gregorys amended their complaint and added Hodges Construction as a defendant. On July 15, 2002, the Gregorys amended their complaint for a second time. That time, the Gregorys finally added Audubon as a defendant and claimed they were entitled to recover as third party beneficiaries under Hodges Construction’s commercial general liability policy with Audubon.

¶ 8. On January 27, 2003, Audubon filed a motion for summary judgment. Audubon took the position that the Gregorys were precluded from recovery as third party beneficiaries due to the language of the policy. Meanwhile, the Gregorys settled with all named defendants except Audubon. On January 3, 2006, the circuit court conducted a hearing on Audubon’s motion for summary judgment. That same day, the circuit court entered an order and opinion. By that order, the circuit court found “that the auto exclusion forecloses coverage under the Audubon policy.” The circuit court found that, based on the circumstances of Neil’s injuries, the language of the Audubon commercial general liability policy did not allow the Gregorys to recover anything as third party beneficiaries of Hodges Construction’s commercial general liability insurance policy. Accordingly, the circuit court granted Audubon’s motion for summary judgment. The Gregorys appeal.

STANDARD OF REVIEW

¶ 9. The sole issue before us is whether the circuit court erred when it found that summary judgment on behalf of Audubon was appropriate. “This Court’s standard of review for summary judgment is well-settled and is the same standard employed by the trial court under Rule 56(c).” Titan Indem. Co. v. Estes, 825 So.2d 651(¶ 11) (Miss.2002). We conduct a de novo review of a circuit court’s decision to grant or deny summary judgment. Id.

ANALYSIS

¶ 10. According to Rule 56 of the Mississippi Rules of Civil Procedure, a circuit court may grant summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “A fact is material if it ‘tends to resolve any of the issues, properly raised by the parties.’ ” Webb v. Jackson, 583 So.2d 946, 949 (Miss.1991). The moving party bears the burden of showing that no genuine issue of material fact exists. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). Additionally, the circuit court must view the evidence in the light most favorable to the non-moving party. Russell v. Orr, 700 So.2d 619, 622 (Miss.1997). Because it is generally better to err on the side of denying the motion, it has been said that the circuit court must consider motions for summary judgment with a skeptical eye. Ratliff v. Ratliff, 500 So.2d 981, 981 (Miss.1986).

¶ 11. The circuit court found that the Gregorys were precluded from recovery as third party beneficiaries under the commercial protection policy Hodges Construction purchased from Audubon. The circuit court reached its decision based on the language of what is termed the “auto exclusion.” Pursuant to the “auto exclusion,” Audubon will not pay benefits for:

“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any ... “auto” ... owned or operated by or rented or loaned to any insured. Use includes operation and “loading and unloading.”

Audubon submits that, because Moore was an employee of Hodges Construction and was driving a dump truck leased to Hodges Construction when he backed into Gregory, the Gregorys are not entitled to recover under the “auto exclusion.”

¶ 12. The Gregorys claim that they are entitled to coverage by virtue of the “parking exception” to the “auto exclusion.” The “parking exception” states that the “auto exclusion” does not apply to “[P]ark-ing an ‘auto’ on or on the ways next to, premises you own or rent, provided the ‘auto’ is not owned by or rented or loaned to you or to the insured.” Consequently, our analysis must focus on (a) whether the “auto exclusion” applies and, if so, (b) whether the “parking exception” overrides the “auto exclusion.”

a. The “Auto Exclusion”

¶ 13. As mentioned, Hodges Construction’s policy with Audubon will not extend coverage to:

“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any ... “auto” ... owned or operated by or rented or loaned to any insured. Use includes operation and “loading and unloading.”

Said differently, Audubon will not compensate for injuries arising out of the use of any “auto” owned, operated by, rented to, or loaned to any “insured.” The policy specifically defined both “auto” and “insured.”

¶ 14. According to the policy, “ ‘[a]uto’ means a land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment. But ‘auto’ does not include ‘mobile equipment.’ ” The dump truck Moore operated was designed for travel on public roads. There is no dispute as to whether Moore operated an “auto.”

¶ 15. In the context of the policy, each of the following is an insured:

Your [meaning Hodges Construction’s] “employees” other than either your “executive officers” ... or your managers ..., but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business.

At the time of the accident, Moore was driving a dump truck in his capacity as an employee of Hodges Construction. Hodges Construction’s employees are specifically contemplated as insureds. There is no dispute as to whether Moore was acting within the scope of his employment or that he was performing duties related to the conduct of Hodges Construction’s business. Accordingly, there is no question that Moore was an “insured” at the time Neil Gregory was injured.

¶ 16. Thus, we are of the opinion that Moore, an insured, used Hodges Construction’s dump truck, an “auto” as contemplated by the policy language, when he backed into Gregory. As such, Neil Gregory sustained bodily injuries that arose out of the use of an auto operated by Moore, an insured. Consequently, the language of the “auto exclusion” applies and the Gregorys may not recover as third party beneficiaries of Hodges Constructions’ commercial protection policy with Audubon. Unless, that is, the Gregorys are correct in their assertion that they are still entitled to recover under the “parking exception” to the “auto exclusion.”

b. The “Parking Exception.”

¶ 17. As discussed above, the “auto exclusion” does not apply to “[p]ark-ing an ‘auto’ on, or on the ways next to, premises you own or rent, provided the auto is not owned by or rented or loaned to you or the insured.” If the Gregorys are correct, they would be entitled to recover as third party beneficiaries. According to the Gregorys, the exclusion is ambiguous in that it does not specify which vehicles have to be involved in parking. The Gregorys note that the word “you” implies the insured as mentioned in the definitions. They also point out the provision in the policy that says, “Throughout this policy the words ‘you’ and ‘your’ refer to the Named Insured.” The Gregorys then draw attention to the fact that “you” is mentioned in the parking exception phrase, but only in reference to ownership of the property where the accident occurs. The Gregorys reason that:

If the insurer had intended the parking exception to only apply to bodily injury arising from the insured parking a vehicle, it could have easily used the word “you” to specify, “You or the insured parking an auto on, or the ways next to, premises you own or rent.”

According to the Gregorys, “Since this language was not included, the parking exception to the auto exclusion applies to any person parking on the premises.”

¶ 18. The Gregorys are incorrect in their selective interpretation of the parking exception. The circuit court was correct. The Audubon policy is not an automobile liability policy. It is a commercial general liability policy. The parking exception specifically states that the exception does not apply to vehicles loaned to the insured. As stated above, Moore was an insured because he was an employee of Hodges Construction. As Audubon points out, “[s]ince the dump truck driven by Larry Moore was loaned or leased to Hodges Construction at the time of the accident ... the exception does not apply.”

¶ 19. Moreover, the parking exception only applies to parking an auto on premises Hodges Construction either owns or rents. There is no evidence to suggest that Hodges Construction owned or rented the Sand Creek Dirt Pit. Audubon further asserts that coverage does not apply “because Hodges Construction is the Named Insured on the Audubon policy, and Hodges Construction did not own the Sand Creek Dirt Pit where the accident took place.”

¶ 20. It is debatable whether Neil Gregory was “parking,” at the time of his injury. Though it seems a stretch to conclude that Gregory was parking versus temporarily leaving his vehicle, that is not a distinction we have to consider. Because there are two clearly undisputed reasons as to why the parking exception does not apply, there is no reason to go further with our analysis. Suffice it to say, the circuit court was correct when it granted summary judgment in Audubon’s favor. The Gregorys are not entitled to recover as third party beneficiaries of Hodges Construction’s policy with Audubon. Accordingly, we affirm.

¶ 21. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


text:
    James Ryan FUGATE a/k/a Jamie, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02175-COA.
    Court of Appeals of Mississippi.
    March 13, 2007.

      Leslie D. Roussell, Laurel, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. On October 10, 2005, a jury sitting before the Second Judicial District of the Jones County Circuit Court found James Fugate guilty of aggravated domestic violence. Following unsuccessful post-trial motions for JNOV or, alternatively, for new trial, Fugate appeals and raises six issues, listed verbatim:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO GRANT THE DEFENDANT’S MOTION TO SUPPRESS EVIDENCE OF PRIOR ABUSES ALLEGED TO HAVE BEEN COMMITTED AGAINST MS. HOWARD BY MR. FUGATE. THEREBY RESULTING IN JUROR PREJUDICE BECAUSE OF THE DEFENDANT’S ALLEGED PRIOR BAD ACTS.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO GRANT THE DEFENDANT’S MOTION TO DISALLOW THE STATE FROM INTRODUCING VIDEO TAPED STATEMENTS MADE BY THE DEFENDANT WHICH WERE SPECULATIVE IN NATURE AND COUCHED IN TERMS OF WHAT MAY OR MIGHT HAVE HAPPENED.
III. [THE CIRCUIT] COURT ERRED BY NOT ALLOWING TESTIMONY OF KAY SMITH WHO WAS CALLED BY THE DEFENSE TO IMPEACH STATEMENTS MADE BY THE STATE’S VICTIM WITNESS.
IV. THE DISTRICT ATTORNEY IN HIS CLOSING ARGUMENTS DIRECTLY CALLED A WITNESS FOR THE DEFENDANT A LIAR. THIS WAS PLAIN ERROR THAT THE COURT SHOULD HAVE STEPPED IN AND PROTECTED THE RIGHTS OF THE DEFENDANT BY IMMEDIATELY DECLARING A MISTRIAL.
V. THE COURT COMMITTED REVERSIBLE ERROR BY FAILING TOP [SIC] GRANT THE DEFENDANT’S MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE’S CASE-IN-CHIEF, AND BY FURTHER OVERRULING THE DEFENDANT’S MOTION FOR J.N.O.V. AS THE OVERWHELMING WEIGHT AND SUFFICIENCY OF THE EVIDENCE COULD NOT POSSIBLY SUPPORT A JURY VERDICT OF GUILTY IN THIS CASE.
VI. WHETHER THE ABOVE DESCRIBED ERRORS WHEN VIEWED CUMULATIVELY RISE TO THE LEVEL OF PREVENTING MR. FUGATE FROM RECEIVING A CONSTITUTIONALLY FAIR TRIAL.

Finding no error, we affirm.

FACTS

¶ 2. As of September of 2004, James Fugate had been living with his girlfriend, Stacy Howard, for approximately a year and a half. On September 8, 2004, Fugate and Howard drank, by Howard’s description, “a lot” of alcohol. Howard and Fu-gate argued. According to the prosecution, Fugate got violent with Howard. Fugate disputed that contention. What happened the next morning, however, is entirely undisputed.

¶ 3. The next morning, Howard looked at herself in the mirror and found extremely severe injuries to her face. Alarmed by her appearance, Howard asked a friend to take her to the emergency room at South Central Regional Medical Center (SCRMC) in Laurel, Mississippi.

¶ 4. At SCRMC, Howard underwent x-rays. In laymen’s terms, those x-rays revealed multiple fractures to her face. Howard’s treating physician at SCRMC described those fractures as “a fractured zygoma,” “a blow out fracture of her orbit,” “multiple fractures of her maxillary bone,” and “a fractured mandible.” Howard also had severe swelling and “lacerations about her mouth.” Both of Howard’s eyes were black. Her right eye was so black and swollen that she could not open it. Based on the severity of her injuries, Howard was transferred to the University Medical Center (UMC) in Jackson, Mississippi.

¶ 5. Due to severe swelling, UMC physicians could not treat any of Howard’s injuries. On September 10, 2004, Howard took a Greyhound bus back to Laurel. Howard went to the Jones County Sheriffs Department and gave a sworn statement to Brad Grunig, a criminal investigator. Howard told Investigator Grunig that Fugate beat her with his fists.

¶ 6. On September 11, 2004, Howard went back to UMC. Howard underwent plastic surgery and facial reconstruction. A plate was put in the right side of her face and her jaw was wired shut. Her jaw remained wired shut for six weeks.

¶ 7. On September 13, 2004, Fugate executed a waiver of rights document and gave a statement to Investigator Grunig. That interview was recorded on videotape. Fugate stated that he and Howard drank the night of the 9th and that they argued. Fugate said that Howard caused their arguments to escalate because she “bitched” and “nagged” and “started in on him.” Fugate did not specifically deny that he beat Howard. Instead, Fugate said that he did not remember beating Howard because he “blacked out” due to the volume of alcohol he consumed.

¶ 8. Further, Fugate said that, on past occasions, he and Howard argued when they drank and, occasionally, he had hit Howard. Fugate elaborated that he had never hit Howard with anything other than his fists because he preferred to “fight fair.” Fugate also explained that Howard had been similarly injured after past altercations and that she had never sought medical attention. Fugate opined that Howard would not have sought medical attention had she not been prompted by a friend. When asked whether he thought Howard got what she deserved, Fugate answered, “basically.”

PROCEDURAL HISTORY

¶ 9. On November 17, 2004, the Jones County Grand Jury returned an indictment against Fugate and charged him with aggravated domestic violence in violation of Section 97-3-7(4) of the Mississippi Code. Fugate pled not guilty.

¶ 10. Fugate filed three motions designed to prohibit the prosecution’s presentation of various forms of evidence, particularly his videotaped interview with Investigator Grunig. On August 11, 2005, Fugate filed a motion in limine and sought to exclude any reference to his having beaten Howard prior to September 8, 2004. That motion also applied to portions of Fugate’s videotaped interview. On October 5, 2005, Fugate filed a motion to suppress the video tape entirely or, alternatively, a motion in limine to exclude portions of the video tape in which Fu-gate speculated as to what “might have happened or probably happened” on September 8, 2004. Finally, on October 10, 2005, the date of trial, Fugate filed yet another motion in limine. By that particular motion, Fugate sought to prohibit mention of his prior criminal convictions.

¶ 11. On the day of trial, after voir dire but prior to opening statements, Fugate put the circuit court on notice of his three unresolved motions. Because the prosecution agreed to refrain from mentioning Fugate’s prior convictions, the circuit court did not have to rule on that motion. However, the prosecution contested Fugate’s other two motions.

¶ 12. The circuit court first addressed Fugate’s motion to exclude any mention of Fugate’s having committed violence against Howard prior to September 8— particularly those statements Fugate made during his September 13 videotaped interview. After the circuit court heard arguments on the matter, the circuit court overruled Fugate’s motion.

¶ 13. Immediately afterwards, the circuit court addressed Fugate’s motion to exclude any comments Fugate made during his taped interview that could be viewed as his speculating as to what happened on September 8. Again, after each side argued its respective position, the circuit court overruled Fugate’s motion. The prosecution proceeded with its presentation of evidence.

¶ 14. The prosecution presented three witnesses. Howard testified first. Howard testified as to her recollection of events on September 8. She testified that she and Fugate drank “a lot” that evening and that they argued. According to Howard, their argument turned violent. Howard recalled that, while standing outside their home, Fugate “hit [her] about two or three times.” At that point, she “went down [and] passed out.” Howard explained that she became unconscious. Later, Howard “[g]ot back up[,] ... went to the house [and] went to bed.” Finally, she recalled the days and the treatment that followed.

¶ 15. Next, the prosecution called, Mark A Kelly, D.O. Dr. Kelly treated Howard at the SCRMC emergency room. Dr. Kelly testified as to Howard’s severe injuries and the course of treatment she received.

¶ 16. Finally, the prosecution called Investigator Grunig. During Grunig’s testimony, the prosecution played the tape of Fugate’s September 13th interview. The prosecution rested after Investigator Gru-nig testified.

¶ 17. Fugate called three witnesses of his own centered around a defense theory based on accident. That is, Fugate presented evidence suggestive that he did not beat Howard. Rather, Fugate’s theory was that Howard sustained her injuries when she fell down the steps from their front door.

¶ 18. First, Fugate called his sister, Tracy Smith. Tracy testified that, as of September 8, 2004, she lived with her and Fugate’s mother. Tracy explained that she and her mother lived near Fugate and Howard. Fugate and Howard’s house was at the bottom of a hill, while hers was at the top of the hill.

¶ 19. According to Tracy, on September 8, she heard a “ruckus” coming from Fu-gate’s house sometime between 11:00 p.m. and midnight. Tracy asked two friends to drive her down the hill to Fugate’s house. When she arrived, she found Fugate standing at his front door. Tracy then testified:

[Howard] comes to the door and moves [Fugate] out of the way, and in not a respectful manner and tells him to move, who’s he talking to. And then I’m talking to her, and I’m still out in the car and then I’m talking to her. And she goes to come down the stairs on the porch. You have like little steps and it’s like concrete steps and then she fell when she was coming down and I jumped out of the car and ran over there and was helping her up and she was all bleeding and stuff. So I went in the trailer and I got a towel and I started wiping the blood from her. I told Stacy we need to take you to the hospital. We need to take you to the hospital. No, Tracy, I’m too drunk. I don’t need to go to the hospital right now. She’s bleeding from out of her nose, I mean just on her eyes and everything else.
So she wouldn’t go to the hospital. I tried to get her to go the next morning. And she would not go to the hospital. ¶ 20. Fugate then called Misty Allen,

one of the two friends that went to Fu-gate’s house with Tracy. Allen corroborated Tracy’s version of events, except Allen did not remember anyone being with her but Tracy. Allen also testified that she could not remember how Howard fell down the steps.

¶ 21. Finally, Fugate called his mother, Lavita Smith. Fugate’s attorney attempted to have Lavita testify that Howard did not remember the events of September 8. When Lavita began to answer, the prosecution objected and argued that Fugate’s attorney had not laid the proper predicate for such impeachment testimony. The circuit court sustained the prosecution’s objection.

¶ 22. Fugate then proffered testimony from Lavita. According to Lavita, at Fu-gate’s attorney’s office, she heard Howard tell Fugate’s attorney that she did not remember what happened on September 8th because she was too drunk. Fugate then rested. After deliberation, the jury found Fugate guilty.

¶ 23. On November 8, 2005, the circuit court sentenced Fugate to twenty years in the custody of the MDOC with five years suspended and fifteen years to serve. That same day, Fugate filed a motion for JNOV or, alternatively, for a new trial. On November 21, 2005, the circuit court conducted a hearing on Fugate’s post-trial motions. Ultimately, the circuit court overruled them. Aggrieved, Fugate appeals.

ANALYSIS

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO GRANT THE DEFENDANT’S MOTION TO SUPPRESS EVIDENCE OF PRIOR ABUSES ALLEGED TO HAVE BEEN COMMITTED AGAINST MS. HOWARD BY MR. FUGATE. THEREBY RESULTING IN JUROR PREJUDICE BECAUSE OF THE DEFENDANT’S ALLEGED PRIOR BAD ACTS.

¶ 24. Fugate appeals the circuit court’s decision to overrule his motion to suppress statements Fugate made during his taped interview regarding evidence of prior domestic violence against Howard. According to Fugate, it was inadmissible evidence of prior bad acts. The State submits that the evidence was admissible as evidence of Fugate’s motive, intent, and lack of accident.

¶ 25. We review a circuit court’s decision to admit or exclude evidence pursuant to our familiar abuse of discretion standard. Burton v. State, 875 So.2d 1120(¶ 6) (Miss.Ct.App.2004). We will find an abuse of discretion where a defendant shows clear prejudice resulting from an undue lack of constraint on the prosecution or undue constraint on the defense. Id. We will not disturb the circuit court’s decision unless it is clearly wrong. Id.

¶ 26. Fugate asserts that his having committed domestic violence against Howard on prior occasions was inadmissible evidence of his character.

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.

M.R.E. 404(b).

According to the State, Fugate’s statements in which he alluded to prior domestic violence were admissible to show absence of accident. We agree.

¶ 27. Fugate presented a defense based on accident. That is, Fugate submitted that Howard injured herself when she fell and her face hit the ground. Fugate presented two witnesses who each testified that Howard fell and that she injured herself as a result of her fall. M.R.E. 404(b) permits introduction of prior acts to demonstrate absence of accident. The evidence at issue was not so much evidence of Fugate’s violent character as it was evidence in contrast to his accident defense.

¶ 28. We must now consider M.R.E. 403. Rule 403 requires the consideration of whether the probative value of proposed evidence is substantially outweighed by the danger of unfair prejudice. Marbra v. State, 904 So.2d 1169(¶ 22) (Miss.Ct.App. 2004). In this sense Rule 403 is the ultimate filter through which all otherwise admissible evidence must pass. Id.

¶ 29. Naturally, the evidence is prejudicial to Fugate. It would have little prose-cutorial value if it were not prejudicial to some degree. The relevant question is whether the circuit court abused its discretion when it found that the evidence in question was more prejudicial than it was probative. Here, we cannot find that the circuit court abused its discretion.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO GRANT THE DEFENDANT’S MOTION TO DISALLOW THE STATE FROM INTRODUCING VIDEO TAPED STATEMENTS MADE BY THE DEFENDANT WHICH WERE SPECULATIVE IN NATURE AND COUCHED IN TERMS OF WHAT MAY OR MIGHT HAVE HAPPENED.

¶ 30. Fugate takes the position that the circuit court improperly allowed the prosecution to present inadmissible opinion evidence contained in his videotaped interview. That is, Fugate claims the prosecution should not have been permitted to present his statements as to how Howard sustained her injuries on September 8 if he did not cause them. We stated our standard of review in Fugate’s first assignment of error. There is no reason to repeat it here.

¶ 31. Fugate invokes M.R.E. 701 as his rationale for exclusion of the evidence at issue. Pursuant to M.R.E. 701:

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perceptions of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

¶ 32. Fugate does not point to one specific point or statement within his videotaped interview that he claims is inadmissible under M.R.E. 701. We can only assume that Fugate references the portion of his interview in which Investigator Grunig asks Fugate what he thought happened to Howard if he did not beat her up. Fugate pointed out that he did not remember much of the evening because he “blacked out.” However, he speculated that Howard “went out and got herself beat up.”

¶ 33. Fugate does not point out just how the statements at issue, whatever nonspecific statements he references, are either (a) not rationally based on his perceptions, (b) unhelpful to either the clear understanding of his statement or the determination of a fact in issue, or (c) that they are based on scientific, technical, or other specialized knowledge within the scope of M.R.E. 702. Fugate’s responses as to the events of September 8 obviously did not call for an answer based on some scientific or other specialized knowledge. Fugate’s statement was obviously rationally based on his perceptions. He was asked what happened to Howard on September 8. Naturally, that question called for an answer based on Fugate’s perception of that night.

¶ 34. Fugate essentially answered that he did not know because he “blacked out” as a result of the volume of alcohol he consumed. If Fugate did not cause Howard’s injuries, as he claimed, and no one else could have subjected Howard to such injuries, the next obvious inquiry is to ask just how Howard ended up injured. In that sense, Fugate’s responses were helpful to the clear understanding of his statement and they were helpful to the determination of the fact in issue — whether Fugate caused Howard’s injuries.

III. [THE CIRCUIT] COURT ERRED BY NOT ALLOWING TESTIMONY OF KAY SMITH WHO WAS CALLED BY THE DEFENSE TO IMPEACH STATEMENTS MADE BY THE STATE’S VICTIM WITNESS.

¶ 35. In this issue, Fugate claims the circuit court improperly prohibited him from impeaching Howard’s testimony with Lavita Smith’s testimony. The standard of review stated in issues one and two apply here as well. Suffice it to say, we review this issue for an abuse of discretion.

¶ 36. During cross-examination of Howard, the following exchange took place:

Q. Ms. Howard, I’m David Ratcliff. I represent James Fugate. Have you ever met me before?
A. Yes, sir.
Q. How many times?
A. Once.
Q. Where was it?
A. In your office.
Q. In my office when approximately?
A. I’m not sure.
Q. A month or two ago?
A. Yeah, I’d say.
Q. What did you tell me happened to you that time at my office?
[Objection by the Prosecution. Bench conference not reported].
Q. What did you tell me about what happened on September 8th to you, September 8th of 2004?
A. I told you I didn’t remember a whole lot about it.
Q. You didn’t remember [Fugate] hitting you, isn’t that what you told me?
A. No, sir.
Q. What did you tell me?
A. I just told you.
Q. You’re saying that the entire extent of our conversation or your statement to me was that you didn’t remember a whole lot about it.
A. Yes, sir.
Q. Is that what you’re saying?
A. Yes, sir.
Q. And that’s all you said?
A. Yes, sir.

Fugate’s attorney then moved to another subject.

¶ 37. During direct examination of La-vita Smith, Fugate’s attorney attempted to impeach Howard’s testimony. Counsel for Fugate asked Lavita whether she remembered being at his office at the same time as Howard. Lavita testified that she did. When Fugate’s attorney asked Lavita what Howard said, the prosecution objected and argued that Fugate’s attorney had not laid a proper predicate for such impeachment testimony. The circuit court sustained the prosecution’s objection.

¶ 38. Fugate’s attorney then asked La-vita, “Has Stacy Howard ever told you anything about what happened directly other than in my office?” The prosecution objected again, based on the lack of a proper predicate, but not before Lavita answered, “Basically that she doesn’t remember.”

¶ 39. The circuit court had the jury removed from the courtroom. The prosecution argued that Fugate’s attorney did not lay a proper predicate for the question during Howard’s testimony. The circuit court sustained the prosecution’s objection. Accordingly, Fugate proffered the following testimony from Lavita:

Q. Do you recall being in my office?
A. Yes, sir.
Q. All right. And did you recall me asking Stacy Howard what happened on September 8th, the evening of September 8th—
A. Yes, I do.
Q. —at James Fugate’s trailer?
A. Yes, sir.
Q. Do you recall that? What did she say?
A. She said that she didn’t really remember. That she was drunk. She said that she did not want anything to happen to [Fugate], but that she really wasn’t sure what happened. She didn’t want to come to court.
Q. All right. That was the extent of her testimony at that time? I mean, her statement at that time.
A. Yes, sir.

¶ 40. Fugate claims the circuit court erred when it did not allow him to present Lavita’s testimony of Howard’s recollection. Fugate submits that unsworn prior inconsistent statements may be used to impeach a witness’s credibility. According to Fugate, Howard testified that she did not tell Fugate’s attorney that she did not remember that Fugate hit her. Fugate reasons that Lavita’s testimony was admissible as a prior inconsistent statement and that he laid a proper predicate for the question.

¶ 41. Fugate attempted to have Lavita testify as to what he termed prior inconsistent hearsay statements made by Howard. There is no question that Howard’s testimony would not be admissible as a prior inconsistent statement pursuant to M.R.E. 801(d)(1). Howard did not testify, inconsistently or otherwise, under oath at a prior hearing, deposition, or other proceeding. Finally, Howard’s prior statement was not “one of identification of a person made after perceiving him.”

¶ 42. A witness’s prior statements may also be admissible pursuant to M.R.E. 613. Rule 613(b) states:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require.

We cannot find that the circuit court abused its discretion in sustaining the prosecution’s objections. On cross-examination, Howard testified that she did not remember much about the evening of September 8. According to Lavita’s proffered testimony, Howard told Fugate’s attorney that “she didn’t really remember” the events of September 8 and that Howard “really wasn’t sure what happened.” Howard’s testimony that she did not remember much about the evening of September 8th is not inconsistent from Lavi-ta’s proffered testimony that, according to Howard, she did not “really remember” the events of that evening. Accordingly, Lavita’s proffered testimony was consistent with Howard’s testimony and, as such, Lavita’s proffered testimony would certainly not be admissible as prior inconsistent testimony.

IV. THE DISTRICT ATTORNEY IN HIS CLOSING ARGUMENTS DIRECTLY CALLED A WITNESS FOR THE DEFENDANT A LIAR. THIS WAS PLAIN ERROR THAT THE COURT SHOULD HAVE STEPPED IN AND PROTECTED THE RIGHTS OF THE DEFENDANT BY IMMEDIATELY DECLARING A MISTRIAL.

¶ 43. Here, Fugate claims the prosecutor made improper comments during closing arguments. Fugate references the prosecutor’s description of Tracy Smith’s testimony as “lies.” Fugate failed to object at trial. Consequently, the procedural bar operates, and this issue is deemed waived. Gary v. State, 796 So.2d 1054, 1056 (Miss.Ct.App.2001).

¶ 44. However, Fugate also argues that the circuit court committed plain error because it “should have stepped in and protected [his] rights ... by immediately declaring a mistrial.” Fugate cites no relevant law indicating that a circuit court commits plain error when it does not spontaneously declare a mistrial when the prosecutor points out inconsistencies in testimony from a defendant’s witnesses. For that reason, Fugate’s argument is further barred.

¶ 45. Assuming, for the sake of argument, that this issue were not doubly barred, this issue would still be meritless. An argument is proper argument if it stems from “deductions and conclusions that could reasonably flow from the facts and evidence.” Sanders v. State, 801 So.2d 694(¶ 39) (Miss.2001).

¶ 46. During the prosecution’s rebuttal to Fugate’s closing argument, the prosecutor pointed out that Tracy claimed that she saw Howard fall down in an effort to show that Fugate did not beat Howard. The prosecutor then attempted to demonstrate inconsistencies in Tracy’s testimony by showing (a) Tracy paid for Fugate’s bond, picked him up at the jail, lived with Fugate at their mother’s home, yet claimed they did not discuss the case, and (b) Tracy never gave a statement to authorities, despite her brother being arrested and charged with aggravated domestic violence. The prosecution was merely pointing out inconsistencies between Tracy’s testimony and her behavior.

Y. THE COURT COMMITTED REVERSIBLE ERROR BY FAILING TOP [SIC] GRANT THE DEFENDANT’S MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE’S CASE-IN-CHIEF, AND BY FURTHER OVERRULING THE DEFENDANT’S MOTION FOR J.N.O.V. AS THE OVERWHELMING WEIGHT AND SUFFICIENCY OF THE EVIDENCE COULD NOT POSSIBLY SUPPORT A JURY VERDICT OF GUILTY IN THIS CASE.

¶ 47. Fugate attacks both the weight and the sufficiency of the evidence. A motion for a JNOV, as well as a motion for a directed verdict and request for a peremptory instruction, challenges the legal sufficiency of the evidence. Griffin v. State, 883 So.2d 1201(¶6) (Miss.Ct.App.2004). We will only reverse if the evidence of one or more of the elements of the charged offense is such that, considered in the light most favorable to the prosecution, reasonable and fairminded jurors could only find the accused not guilty. Id. A motion for a new trial, however, is an attempt to vacate the judgment on grounds related to the weight of the evidence. Id. at (¶ 8). We will reverse a circuit court’s decision to overrule a motion for new trial only if the circuit court abused its discretion. Id.

¶ 48. Howard testified that Fugate struck her at least two or three times and that she “went down [and] passed out.” Howard testified that she found herself seriously injured the next morning. Dr. Kelly testified as to Howard’s multiple facial fractures. The jury heard ample evidence to find Fugate guilty. Likewise, we do not find that the circuit court abused its discretion when it overruled Fugate’s motion for a new trial.

VI. WHETHER THE ABOVE DESCRIBED ERRORS WHEN VIEWED CUMULATIVELY RISE TO THE LEVEL OF PREVENTING MR. FUGATE FROM RECEIVING A CONSTITUTIONALLY FAIR TRIAL.

¶49. Fugate claims the cumulative effect of the errors made it impossible for him to receive a fair trial. We can find no error whatsoever, much less some cumulative effect that would render Fugate’s trial impossible unfair.

¶ 50. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED DOMESTIC BATTERY AND SENTENCE OF TWENTY YEARS WITH FIVE YEARS SUSPENDED AND FIFTEEN YEARS TO SERVE 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 AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR.