author: IRVING, J.,

text:
    Joseph Michael CRIDISO, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00413-COA.
    Court of Appeals of Mississippi.
    Oct. 10, 2006.
    Rehearing Denied Feb. 27, 2007.

      Jonathan Michael Farris, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. Joseph Michael Cridiso was convicted of one count of business burglary by a jury and was sentenced by the Forrest County Circuit Court to serve seven years in the custody of the Mississippi Department of Corrections, without the possibility of any form of early release or parole, as a non-violent habitual offender. Aggrieved, Cridiso appeals and asserts that the trial court erred (1) in denying his motion to quash the indictment and in allowing the State to amend the indictment, (2) in denying his motion in limine seeking to prevent the admission of certain evidence, and (3) in denying his motion for a directed verdict, peremptory instruction, and judgment notwithstanding the verdict. Cridiso also argues that the verdict was against the overwhelming weight of the evidence and was manifestly wrong as a matter of law.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On March 31, 2003, at around five to five-thirty in the morning, Lori Howard arrived at her place of employment, the Fuelmart in Petal, Mississippi. Howard discovered that the store had been broken into and that over ninety cartons of cigarettes had been stolen. The break-in was apparently achieved through a hole that had been made in the back wall of the building, which was a public bathroom that allowed no entry into the rest of the store. An additional hole had been made to gain admission to the actual store. Howard also noticed that a box of clear garbage bags had been moved to a location near one of the holes. Howard informed the Petal Police Department of the break-in. Thereafter, police officers came to the Fu-elmart to investigate the scene and take photographs. Unfortunately, the photographs were accidentally erased and were not available at trial. No fingerprints or other identifying forensic evidence was recovered from the crime scene.

¶ 4. Around the same time as the report of the break-in and the investigation of the scene, Cridiso was stopped by Forrest County Deputy Sheriff David Klem, who had been informed of the break-in at the Fuelmart. Klem testified that he stopped Cridiso because he believed that the vehicle, which was coming out of a dead-end alley near the Fuelmart at around five-thirty in the morning, was suspicious. Klem also testified that he had previously seen switched tags on Cridiso’s vehicle. After Cridiso was stopped, he was asked to get out of his car, which he did. At that time, Klem observed white powder on Cri-diso’s clothing. Cridiso’s wife was also in the car and was also covered in white powder. When asked what he was doing out, Cridiso informed Klem that he was on his way to work. When Klem looked in the front seat of Cridiso’s vehicle, he observed a claw hammer, maul, and flashlight between the driver’s seat and the passenger’s seat. The instruments were covered in what appeared to be the same white dust as Cridiso and his wife.

¶ 5. After making these observations, Klem contacted the Petal officers and informed them of his findings. After the Petal police officers arrived, they further examined what could be seen by looking into the car. Several cartons of cigarettes, in clear plastic bags, were observed underneath bags of clothing in the backseat of Cridiso’s vehicle. Through empty audio holes in the rear of the car, officers were able to observe additional cigarette cartons located in the trunk of Cridiso’s car. Some time after the Petal officers arrived, Cridiso and his wife were taken into custody.

¶ 6. Howard was brought to the vehicle to see if she could identify the cartons of cigarettes as the ones that had been taken from her store. She was able to positively identify several of the cartons because either she or another Fuelmart employee had handwritten the number “seven” on the cartons after receiving them. This was a standard practice that the Fuelmart used to identify promotional cartons, which contain only seven packs of cigarettes as opposed to the ten packs that come in other cartons. Cridiso’s vehicle was then taken to the Petal Police Department, where it was processed. A wrench was found in the car along with the objects observed by the deputy. Around ninety cartons of cigarettes were discovered in the vehicle.

¶ 7. Thereafter, Howard came to the Petal Police Department to attempt to identify the cartons that had been removed from the vehicle as the cartons that were stolen from her store. She was able to positively identify only the cartons that had “seven” handwritten on them, but she testified that the other cartons almost exactly matched the number and brand of cartons that had been taken from the store. At that time, the majority of the cartons were returned to her for sale at the Fuelmart. Before giving her the cartons, law enforcement photographed and inventoried the cartons. Testimony indicated that the cartons were returned to Howard in part because tobacco has a limited shelf-life, and the cigarettes would likely become unsaleable if kept until after Cridiso’s trial. The cartons that Howard was able to identify positively as having come from the Fuelmart were kept for use at trial.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Indictment

¶ 8. In Mississippi, issues of law are reviewed de novo by appellate courts. Jones v. State, 912 So.2d 973, 975(¶ 8) (Miss.2005) (citing UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hosp., Inc., 525 So.2d 746, 754 (Miss.1987)). Because a determination of whether an amendment is one of form or one of substance is a question of law, a court’s decision to allow the amendment of an indictment “deserves a relatively broad standard of review....” Id. (citing Peterson v. State, 671 So.2d 647, 652 (Miss.1996)).

¶ 9. In general, a trial court can only grant amendments of form to an indictment, not amendments of substance. Mixon v. State, 921 So.2d 275, 280(¶ 15) (Miss.2005) (citing Shive v. State, 507 So.2d 898, 900 (Miss.1987)). Any amendment which “change[s] the charge made in the indictment to another crime” is an amendment of substance. Id. (quoting Shive, 507 So.2d at 900). Amendments of form are those that do not prejudice the defense. Jones, 912 So.2d at 976(¶ 9) (quoting Pool v. State, 764 So.2d 440, 443(¶ 10) (Miss.2000)). “The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood would be equally available after the amendment is made.” Id. (quoting Pool, 764 So.2d at 443(¶ 10)). If a defect is found to be one of substance, the indictment can be corrected only by the grand jury, not by the trial court. Id. (citing Rhymes v. State, 638 So.2d 1270, 1275 (Miss.1994)).

¶ 10. In the present case, we find that the amendment granted by the trial court was an amendment of form and not an amendment of substance. The original indictment in the case alleged that Cridiso had burglarized a store in Hattiesburg, Mississippi. In reality, the store was located in Petal. Shortly before trial, Cridi-so filed a motion to quash the indictment on the grounds that it “contains the wrong location of the crime alleged to have been committed in this cause thus creating a jurisdictional defect.” Prior to trial, the court held a hearing on all the pre-trial motions, including the motion to quash the indictment. At the hearing, Cridiso reiterated that the city identified as the location of the crime in the indictment was incorrect. The State responded, pointing out that “[tjhere is no other Fuel Man 603.” The State requested that the court allow the State to amend the indictment to reflect that the location in question was in Petal and not Hattiesburg. The court ruled, noting:

I believe the indictment does fairly and specifically set forth Fuel Man Number 603, 1014 South Main. Although it should have read Petal, Mississippi, I don’t know that there even is a South Main in Hattiesburg, Mississippi; however, both are situated within the jurisdiction of this Court in Forrest County, Mississippi. I’m going to allow the amendment to show Petal, Mississippi....

¶ 11. Mississippi Code Annotated section 99-17-13, as amended, specifically allows:

Whenever ... there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof, in the name of any ... city, town, village, division, or any other place mentioned in such indictment ... it shall and may be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense on the merits, to order such indictment and the record and the proceedings in the court to be amended according to the proof....

Therefore, the court in this case was authorized to amend the indictment to change the location from Hattiesburg to Petal as long as the change was “not material” and Cridiso was not “prejudiced thereby in his defense on the merits.... ”

¶ 12. There is no indication that Cridiso was confused as to the location of the alleged crime. No evidence was offered indicating that there was a similar location at 1014 South Main in Hattiesburg; in fact, no evidence was offered indicating that there even was a South Main in Hat-tiesburg at all. The only explanation offered to explain Cridiso’s whereabouts at the time of the crime was the testimony of Klem, who testified that Cridiso said he was on his way to work. Nothing was presented to indicate that Cridiso had a defense prepared that was no longer available to him after the amendment of the indictment. Cridiso’s defense was that he did not commit the burglary in question, as shown by his opening statement where his attorney told the jury: “we’re here today because on March 31, 2003, the police arrested the wrong man.” Clearly, Cridiso’s defense that someone else committed the crime was as viable after the indictment as it had been before the amendment of the indictment. The court did not err in declining to quash the indictment and in granting the State’s amendment to the indictment to reflect the proper location of the burglary.

¶ 13. Cridiso also contends that the evidence offered at trial still failed to conform to the indictment, because the location in question was a “Fuelmart,” whereas the indictment alleged that the burglary took place at a “Fuel Man.” We note first that, while Cridiso raised several grounds on which he believed that the indictment should be quashed, Cridiso did not raise this issue below as a flaw in the indictment. A flaw in an indictment that could have been cured with a non-substantive amendment that is raised for the first time on appeal is procedurally barred. Gray v. State, 728 So.2d 36, 70 (¶ 169) (Miss.1998) (citing Brandau v. State, 662 So.2d 1051, 1055 (Miss.1995)). The change of the specific name of the store from “Fuelman” to “Fuelmart” clearly would have been an amendment to the form of the indictment, and thus would have been proper. See Parchman v. State, 279 So.2d 602, 603-04 (Miss.1973) (holding that amendment to indictment to reflect actual name of victim is allowable). Therefore, this issue is procedurally barred.

¶ 14. Regardless of the procedural bar, this issue is without merit. In Spicer v. State, 921 So.2d 292, 319(¶ 58) (Miss.2006) (citing Williams v. State, 445 So.2d 798, 804 (Miss.1984)), the Mississippi Supreme Court explained the purpose of an indictment: “The purpose of an indictment is to furnish the defendants notice and a reasonable description of the charges against them.... Therefore, an indictment is only required to have a clear and concise statement of the elements of the crime the defendant is charged with.” The indictment in the present case gave a clear and concise statement of the elements of the crime with which Cridiso was charged. The indictment stated that Cri-diso had “willfully, unlawfully, feloniously, and burglariously” broken and entered into a building at 1014 South Main “known as Fuelman # 603 ... with the intent to steal therein.” The fact that the building was actually known as “Fuelmart” is immaterial to Cridiso’s understanding of the charges against him. In addition to requiring that the indictment contain a plain and concise statement of the essential facts of the crime, Rule 7.06 of the Mississippi Uniform Rules of Circuit and County Court also requires: (1) the name of the accused, (2) the date of the filing of the indictment, (3) language indicating that “prosecution is brought in the name and by the authority of the State of Mississippi,” (4) “[t]he county and judicial district in which the indictment is brought,” (5) the date and time of the offense, (6) the signature of the grand jury foreman, and (7) the words “against the peace and dignity of the state.” This list does not require that an indictment specify the name of the victim at all. The indictment in this case, despite misspelling the name of the store where the burglary took place, was sufficient. Cridiso’s contentions to the contrary are without merit.

2. Denial of Motion in Limine and Spoliation

¶ 15. Cridiso next contends that the court erred in failing to grant his motion in limine, which requested that the State be prohibited from introducing testimony about, and photographs of, the cigarette cartons that were returned to Howard pri- or to trial. Cridiso also contends that he is entitled to a new trial because of the State’s spoliation of evidence that would have aided his defense. For clarity’s sake, we address these two claims of error separately.

Spoliation

¶ 16. A defendant is entitled to a new trial because of lost or destroyed evidence only if the evidence “would have played a significant role in the defendant’s case” and the defendant had “no way of obtaining comparable evidence by other means.” Russell v. State, 849 So.2d 95, 114(¶ 58) (Miss.2003) (quoting Northup v. State, 793 So.2d 618, 623-24(¶ 17) (Miss.2001)). “To play a significant role, the exculpatory nature and value of the evidence must have been apparent before the evidence was lost.” Id. (quoting Northup, 793 So.2d at 623-24(¶ 17)). Intentional destruction of evidence raises an inference that material was exculpatory only when “the spoliation or destruction was intentional and indicate[d] fraud and a desire to suppress the truth.” Murray v. State, 849 So.2d 1281, 1286(¶ 19) (Miss.2003) (quoting Tolbert v. State, 511 So.2d 1368, 1372 (Miss.1987)).

¶ 17. The court did not abuse its discretion by allowing the State to present testimony about the missing cartons. Cridiso failed to show that the actual cartons themselves would have assisted in his defense. Although the evidence in this case was intentionally destroyed, no evidence whatsoever was produced to indicate that the destruction was fraudulent or stemmed from a desire to suppress the truth. Officer David Bassett, the officer who opted to return the cigarettes to Howard, explained:

The reason that I had released some of the cartons of cigarettes back to the store is simply because I knew exactly that the trial could go on up to a year in time; therefore, the cigarettes would have spoiled. They would have been no good. And due to that fact, I opted to give it back to the store, and I thought that pictures would definitely be suffice [sic] for the evidence that I did give back to the store, and I had Ms. Howard sign for each and every one.

Bassett also explained that the decision of whether to return stolen property is a decision that the officers must make with every burglary, and that, in this case, he had decided to give the cigarettes back to the store. The Russell court specifically stated that the inference that the material was exculpatory “does not arise where the destruction was a matter of routine with no fraudulent intent.” Russell, 849 So.2d at 114(¶ 58) (citing Northup, 793 So.2d at 623-24(¶ 18)). Here, the destruction was a routine decision, made with no discernible fraudulent intent. Therefore, no inference arises that the material was exculpatory.

¶ 18. Cridiso claims that he “could have gotten serial numbers, bar codes or other characteristics off of the cartons which could have determined who the supplier was and whether they were actually from the Fuelmart.” We note that, at trial, Cridiso claimed that “the only boxes of cigarettes that were recovered ... that ... Howard ... could identify were those that were marked with the number seven.... The remaining boxes were identical in brand, make. They had no significant identifying characteristics on them whatsoever.” It is unclear to this Court how the boxes could have “no significant identifying characteristics on them” and yet have “serial numbers, bar codes or other characteristics” that would have been useful to Cridiso in his defense. As this shows, Cridiso’s position regarding the value of the cartons to his defense has been inconsistent. Furthermore, if Cridi-so’s contention was that there were bar codes or serial numbers on the cartons that could have been used to identify them, some evidence that there are distinct markings on cigarette cartons should have been presented. Nothing was presented other than argument to show that there are identifying characteristics on cigarette cartons that could have aided Cridi-so in his defense.

¶ 19. The court did not err in allowing the State to present evidence regarding the destroyed cigarette cartons. The destruction of the cartons did not indicate any fraud or bad faith on the part of law enforcement, so no inference as to the exculpatory nature of the cartons was raised. Since Cridiso presented no evidence to show that whatever information that could have been found on the cartons would have been exculpatory or otherwise important in his defense, nothing indicates that the evidence was significant to Cridi-so’s defense, and his claim of error fails under the first prong of our spoliation analysis. Cridiso is not entitled to a new trial due to spoliation of evidence.

¶ 20. We also note that, because Cridiso was charged with burglary, the inclusion of evidence regarding the destroyed cartons of cigarettes could have no prejudicial impact on Cridiso. There is no doubt that Cridiso was found with several cartons of cigarettes that were positively identified by Howard as having come from her store. Howard’s testimony made it clear that Cri-diso could not have purchased the cartons legally. Since burglary requires only a breaking and entering into a business with the intent to steal therein, the evidence would have been sufficient to sustain a conviction for burglary even without the admission of evidence regarding the returned cartons.

Motion in Limine

¶ 21. We will reverse a court’s denial of a motion in limine only if the court abused its discretion in denying the motion. Brawner v. State, 872 So.2d 1, 13(¶ 36) (Miss.2004) (citing McDowell v. State, 807 So.2d 413, 421 (Miss.2001)). There are two factors that must be present in order for a court to grant a motion in limine: “(1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.” Id. (citing McGilberry v. State, 797 So.2d 940, 942(¶ 12) (Miss.2001)). In seeking to limit the admission of the carton evidence, Cri-diso alleged that the evidence would be inadmissible due to spoliation of evidence as well as Rules 401, 402, and 403 of the Mississippi Rules of Evidence.

¶ 22. Since we have already discussed why the spoliation of the evidence would not have been a sufficient ground for the court to grant the motion in limine, we now turn our attention to the rules cited by Cridiso.

¶ 23. Rule 401 of the Mississippi Rules of Evidence defines what evidence is relevant to an issue: “ ‘Relevant Evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 402 simply provides that irrelevant evidence is inadmissible, and relevant evidence is admissible unless otherwise prohibited. The cartons were clearly relevant to Cridiso’s burglary of the store, because the primary items taken were the dozens of cartons of cigarettes. The presence of the cartons in Cridiso’s vehicle certainly made it more probable than not that Cridi-so had burglarized the Fuelmart. Therefore, Rules 401 and 402 do not provide any grounds for granting the motion in limine.

¶ 24. Rule 403 provides that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Here, the evidence was highly probative of Cridiso’s burglary of the Fuelmart and posed little risk of prejudice, confusion, delay, or the other factors cited in Rule 403. Therefore, Rule 403 did not provide a ground for granting the motion in limine.

¶25. Even if one of the above rules justified a granting of the motion in limine, Cridiso did not show that the mere introduction of the evidence would prejudice the jury in any way. Therefore, the trial court did not abuse its discretion in declining to grant Cridiso’s motion in limine. Cridiso’s contentions to the contrary are without merit.

3. Weight and Sufficiency of the Evidence

Sufficiency of the Evidence

¶ 26. Evidence is sufficient to sustain a conviction where “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). If “ ‘reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). We will consider the record in “the light most favorable to the State.” Id. at 843(¶ 17).

¶ 27. The evidence here is more than sufficient to sustain Cridiso’s conviction. Although this case is built solely on circumstantial evidence, the evidence was still sufficient for a reasonable jury to find Cridiso guilty of burglary. First, Cridiso was found in the proximity of the Fuel-mart. The impact of this circumstance is lessened by the fact that Cridiso lived in the area, but his proximity to the Fuelmart still lends credence to the jury’s finding of guilt. Second, Cridiso was found near the Fuelmart shortly after the burglary was discovered. Third, both Cridiso and his wife were covered in white dust when they were stopped. Cridiso has pointed out that there was no analysis done to confirm whether the white dust was chemically the same as the dust found inside the Fuel-mart, but several individuals testified that the white dust appeared to be identical to the dust found inside the store. These individuals did not represent themselves as experts in identifying white dust, and the jury was entitled to place whatever weight on their testimony it believed the testimony deserved. Fourth, tools that could have been used to break into the Fuelmart were found with Cridiso in the vehicle, covered in the same white dust as Cridiso and his wife. The analyst who examined the scene testified that, because of the nature of the material that the wall was made of, it would have been nearly impossible to find tool marks in the debris left in the store. Fifth, pieces of debris appearing to match the debris in the store were found in the plastic bags with the cartons of cigarettes in Cridiso’s vehicle. Sixth, over ninety cartons of cigarettes were found in Cridiso’s vehicle. These cartons matched nearly exactly the inventory taken from the Fuelmart. Seventh, the promotional cartons that the Fuelmart marked with “seven” were found intermingled with the other cartons recovered from Cridiso’s vehicle. Eighth, Howard testified that, although she could not positively identify any of the cartons except those she had written “seven” on, the rest of the cartons displayed a green mark. According to Howard, this mark was put on the cartons by the distributor. She testified that the Fuelmart is the only store in Petal that has the green-marked cartons, although she admitted that there are other stores in other areas that also display green-marked cigarette cartons. Finally, the cartons were found in plastic bags that Howard testified were identical to the garbage bags in her store. She also testified that whoever broke into the store had moved the garbage bags from their normal location to a location in another part of the store, indicating that whoever took the merchandise had also possibly used the garbage bags. These facts, while all circumstantial, are more than sufficient together for a reasonable jury to have found Cridiso guilty.

¶ 28. Cridiso contends that the State did not prove that Cridiso “actually broke and entered the Fuelmart.” Cridiso further contends that the State did not prove that “a person could enter the store through the hole in the concrete wall of the Fuelmart.” As correctly noted by Cridiso, no measurements of the holes in the walls were taken, and the photographs of the holes were lost. However, testimony by numerous witnesses indicated that it was obvious that entry to the store was gained through the holes. This is supported by Cridiso’s summary of the State’s evidence in his brief, where he notes: “Entry was made to the Fuelmart by busting a hole in the back concrete wall of the store.”

¶ 29. Cridiso argues that the evidence indicated at most that he was guilty of receiving stolen property. The circumstantial evidence of Cridiso’s location when he was stopped, the tools in his car, the concrete found in the bags containing the cigarette cartons in his vehicle, and the dust observed on both Cridiso and his wife all indicate that Cridiso broke and entered into the Fuelmart. Quite simply, the evidence indicated that Cridiso was guilty of more than simply receiving stolen property-

¶ 30. Cridiso also contends in his brief that “the brands of cigarettes that Mrs. Howard testified were missing from the Fuelmart consisted of Salems, Newports, Marlboros, and Kools. But the brand names of the cartons of cigarettes that Detective Bassett gave to Mrs. Howard consisted of Doral, Benson and Hedges, Winstons, Salems, Newports, Marlboros, and Kools.” What Cridiso does not mention is that this discrepancy was explained by Howard during the State’s redirect of her testimony. Howard testified that she had initially thought that only Salems, Newports, Marlboros, and Kools were taken, but that was a mistake, and she later realized that “more than just those brand names” were missing. In other words, Howard’s initial inventory of the missing cigarette • brands was incorrect, but she later corrected the inventory. Her corrected inventory matched nearly exactly the cigarette cartons returned to her by Bassett. Cridiso also contends that Bas-sett lost three cartons of cigarettes before trial and was unable to explain their disappearance. However, Bassett indicated during his testimony that he was certain that what was bagged was the number of cartons that he kept, and that he may have incorrectly written down how many cartons he retained after returning the majority of the cartons to Howard. In other words, Bassett did attempt to explain the discrepancy between the number of cartons that were recorded and the number of cartons that were in evidence at trial.

¶ 31. Cridiso, citing Rawls v. State, 513 So.2d 942 (Miss.1987), contends that “proximity is insufficient to prove burglary.” While Rawls does indicate that more than mere proximity is needed to sustain a conviction for burglary, proximity was the only incriminating evidence in Rawls: “Rawls’ sole connection with the burglary was that he walked around the side of Dennis Perkins’ house, shortly after two other men, who had carried several unidentified objects. The men then departed in an automobile, together. Though arousing suspicion, legal guilt, on these facts, remained unproven.” Rawls, 513 So.2d at 944 (citing Shepherd v. State, 403 So.2d 1287, 1288 (Miss.1981)). There is significantly more evidence supporting Cridiso’s conviction for burglary in this case.

¶32. In summary, the evidence was more than sufficient for a reasonable jury to find that Cridiso had committed all the elements of burglary. Although there was no direct forensic evidence, such as fingerprints or chemical analysis, to support the conviction, the circumstantial evidence was more than sufficient for a reasonable jury to find that Cridiso was guilty of burglary. The evidence indicated that Cridiso broke into and entered the Fuelmart, a store that has valuable merchandise, with the intent to steal items therein, namely over ninety cartons of cigarettes. Cridiso’s contentions that the evidence is insufficient to sustain his conviction are without merit.

Weight of the Evidence

¶ 33. We will reverse a conviction for being against the overwhelming weight of the evidence only when allowing the conviction to stand “would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). The Bush court stated that “the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)). When reviewing the record, we view evidence “in the light most favorable to the verdict.” Id. (citing Herring, 691 So.2d at 957).

¶ 34. Viewing the evidence in the light most favorable to the verdict, Cridiso’s conviction is not against the overwhelming weight of the evidence. Cridiso did not testify, nor did he present any witnesses in his defense. We have already found that the evidence was sufficient to support Cri-diso’s conviction. For the same reasons, we find that allowing his conviction to stand does not sanction an unconscionable injustice. The conviction is not against the overwhelming weight of the evidence. Cridiso’s arguments to the contrary are without merit.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF CONVICTION OF BURGLARY AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A NON-VIOLENT HABITUAL OFFENDER, WITH SAID SENTENCE TO BE SERVED WITHOUT THE BENEFIT OF PROBATION, PAROLE, OR ANY FORM OF EARLY RELEASE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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

      . In order for a conviction of business burglary, the Mississippi Code requires: "breaking and entering ... any shop, store ... or other building ... in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony_” Miss.Code Ann. § 97-17-33(1) (Supp.2005) (emphasis added).


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Terry WALKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00655-COA.
    Court of Appeals of Mississippi.
    Oct. 10, 2006.
    Rehearing Denied Feb. 27, 2007.

      Mose Lee Sudduth, Columbus, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   KING, C.J.,

for the Court.

¶ 1. On February 25, 2005, Terry Walker was convicted by a Lowndes County Circuit Court jury of sale of a controlled substance and sentenced to a term of seven years in the Mississippi Department of Corrections. Walker raises the following issues on appeal.

I. WHETHER THE TRIAL COURT ERRED IN DENYING WALKER’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, A NEW TRIAL.

II. WHETHER THE TRIAL COURT ERRED IN REFUSING INSTRUCTION D-7 ON LESSER INCLUDED OFFENSE.

Finding no error, we affirm.

FACTS

¶2. Sherry Parker had worked as a confidential informant for Deputy Steve Hatcher of the Lowndes County Sheriffs Department for approximately five years. Parker was paid $100 for her participation in each undercover narcotics purchase leading to an arrest. On January 27, 2002, Parker called Hatcher and informed him that she could purchase cocaine from an individual named Terry Walker. At the pre-buy meeting, Hatcher gave Parker $100 to purchase the cocaine and set up a surveillance camera in her automobile.

¶3. When Parker arrived at the warehouse where Walker worked, Walker met her outside, took the $100, and told her that it would take twenty minutes for him to purchase the cocaine from a third party. Walker and Parker met back at the warehouse at the designated time. Walker asked Parker to come inside and smoke some of the cocaine with him. Parker refused, but told Walker to keep a small amount of the cocaine for himself. The transaction was successfully captured on the surveillance tape, and Walker was subsequently arrested for sale of a controlled substance.

¶ 4. Walker’s defense at trial was entrapment. He testified that Parker had called him several times on the day of the controlled buy, asking him to obtain cocaine for her. Walker testified that he initially refused, but Parker continued calling him sounding very upset about her mother being sick, so Walker submitted to her request. He further testified that he did not deal drugs; he was merely the middleman in the transaction.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DENYING WALKER’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, A NEW TRIAL.

¶ 5. A request for JNOV attacks the legal sufficiency of the evidence, while a request for a new trial attacks the weight of the evidence. Turner v. State, 910 So.2d 598, 601-02 (¶¶ 10,16) (Miss.Ct.App.2005). In reviewing the legal sufficiency of the evidence, this Court examines all of the evidence in the light most favorable to the verdict to determine whether each element of the charged offense was proven beyond a reasonable doubt. Holloway v. State, 914 So.2d 817, 819(¶ 5) (Miss.Ct.App.2005). The State must be given the benefit of all reasonable inferences that may be drawn from the evidence. Id. A challenge to the weight of the evidence results in reversal of a conviction only if allowing the conviction to stand would sanction an unconscionable injustice. Johnson v. State, 926 So.2d 246, 251(¶ 18) (Miss.Ct.App.2005).

¶ 6. To support his legal sufficiency and weight of the evidence challenges, Walker argues on appeal that any rational juror should have believed his testimony over that of Parker’s. He points to the fact that his only encounter with the law was a misdemeanor DUI offense in 1990, whereas Parker had previously received sixty-four separate false pretense convictions and had been arrested for prescription forgery, possession of cocaine, and sale of cocaine. However, it is the province of the jury to determine the credibility of a witness and the weight to be afforded to the testimony of that witness. Durdin v. State, 924 So.2d 562, 565(¶ 12) (Miss.Ct.App.2005). Furthermore, even without Parker’s testimony, the jury viewed the surveillance tape which captured the transaction.

¶ 7. As to Walker’s contention that he was merely the middleman, this Court has previously rejected such an argument. In Lyons v. State, 766 So.2d 38(¶ 3) (Miss.Ct.App.2000), Lyons offered to purchase drugs for a friend/confidential informant in exchange for some of the drugs. Lyons was convicted for sale of a controlled substance, and on appeal she argued that she was merely a conduit. Id. at 40(¶ 9). We held that the evidence of Lyons taking the money from the confidential informant and delivering two rocks of crack cocaine to the confidential informant was legally sufficient to support a charge of sale of a controlled substance. Id. at (¶ 10).

¶ 8. Walker also submits that the jury misunderstood, or was confused by, his entrapment defense. We disagree. The jury was given an instruction offered by defense counsel which clearly and accurately defined entrapment as,

the act of inducing or leading a person to commit a crime not originally contemplated by him for the purpose of trapping him for the offense. In other words, where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement or them agents to commit a crime, that person is a victim of entrapment and the law forbids that person’s conviction in the case.

Clearly, the jury rejected this argument. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN REFUSING INSTRUCTION D-7.

¶ 9. Refused instruction D-7 was a lesser-included offense instruction, which advised that if the State failed to prove one or more elements of sale of a controlled substance, the jury may find Walker guilty of possession of cocaine.

¶ 10. Lesser-included offense instructions are properly refused where the defendant admits on the stand that he has committed the greater offense. Johnston v. State, 730 So.2d 534, 537(¶ 15) (Miss.1997). Although Walker denied being a “drug dealer,” he admitted to taking $100 from Parker, obtaining crack cocaine from a third party, delivering the crack cocaine to Parker, and keeping some of the crack cocaine as compensation. Accordingly, the trial court properly refused the lesser included offense instruction.

¶11. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF A CONTROLLED SUBSTANCE AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIVE YEARS POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


text:
    David Laneil STUART, Appellant, v. Karon Alice STUART, Appellee.
    No. 2005-CA-00945-COA.
    Court of Appeals of Mississippi.
    Oct. 17, 2006.
    Rehearing Denied Feb. 6, 2007.

      Morris C. Phillips, Carthage, attorney for appellant.
    Pat Donald, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. David Laneil Stuart and Karon Alice Stuart were granted an irreconcilable differences divorce by the Leake County Chancery Court. David and Karon entered into an agreement and resolved the issues of child custody, visitation, child support, and property division, leaving only the issues of alimony, attorney’s fees, and several contempt motions to be decided by the chancellor. Aggrieved by the chancellors decision, David raises the following issues on appeal.

I. WHETHER THE CHANCELLOR ERRED IN AWARDING ALIMONY.

II. WHETHER THE CHANCELLOR ERRED IN AWARDING ATTORNEY’S FEES.

III. WHETHER THE CHANCELLOR ERRED IN FAILING TO GRANT APPELLANT A SPEEDY TRIAL.

IV. WHETHER THE CHANCELLOR ERRED IN FINDING APPELLANT IN ARREARS FOR NON-PAYMENT OF ONE CHILD SUPPORT PAYMENT.

Y. WHETHER THE CHANCELLOR ERRED IN GRANTING APPELLEE ONE-HALF OF APPELLANT’S THRIFT SAVINGS PLAN.

Finding only one of David’s issues to have merit, we affirm in part and reverse and render in part.

FACTS

¶ 2. David and Karon were married in 1986. The couple lived in Walnut Grove, Mississippi on property that had been in David’s family for six generations. In 1988, Karon gave birth to Tanner, the Stuart’s only child.

¶ 3. David owned a chicken farm which Karon primarily operated. Karon worked on the farm seven days a week while David worked as the maintenance foreman at the G.V. Sonny Montgomery V.A. Medical Center in Jackson. David initially paid Karon only $60 per week for her work on the chicken farm, but eventually raised her salary to $75 per week. After the chicken houses were paid off in 2000, David began paying Karon $185 per week. Karen also made extra income training horses and giving riding lessons and working in a doctor’s office part-time. However, Karon quit training horses and giving riding lessons due to arthritis.

¶ 4. Karon filed for divorce on April 4, 2001. On June 8, 2001, the chancellor entered a temporary order regarding child custody and visitation, support and maintenance, and the use and possession of marital property. On September 23, 2003, the parties filed a property settlement agreement with the court. On February 14 and 15, 2005, a hearing was held in the Leake County Chancery Court to resolve the remaining issues between the Stuarts.

ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN AWARDING ALIMONY.

¶ 5. This Court reviews a chancellor’s findings under the familiar manifest error standard. Elam v. Hinson, 932 So.2d 76, 79(¶ 11) (Miss.Ct.App.2006).

¶ 6. The chancellor applied the factors prescribed in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), and made the following findings:

¶ 7. Income and expenses of the parties. Karon’s net monthly income is $2,675.19 per month, and her monthly living expenses are $3,354.86. David’s net monthly income is $3,497.38, and his monthly living expenses are $3,190.22.

¶ 8. Health and earning capacity of the parties. Karon suffers from heart problems, arthritis, ulcers, and acid reflux. Karon is a high school graduate. She runs the chicken farm. Karon recently graduated from massage therapy school, and is working part-time as a massage therapist. She has previously trained horses and taught riding lessons, but due to her health she is no longer able to continue that line of work. David is in good health. He has been employed at the V.A. Hospital since 1986.

¶ 9. Needs of each party. The chancellor stated that he was familiar with the needs of each party based on a review of their financial statements and testimony.

¶ 10. Obligations and assets of each party. The parties filed a property settlement agreement with the court on September 23, 2003. Pursuant to that agreement, Karon received forty acres of land, the three chicken houses, all poultry equipment, a 1986 Subaru station wagon, and a 1993 Dodge truck. Karon has a large credit card debt. David received eighty-six acres of land and a 2001 Ford truck. David and Karon agreed to split David’s Thrift Savings Plan equally. The chancellor again stated that he was familiar with the financial needs and obligations of the parties.

¶ 11. Length of the marriage. The Stuarts were married for eighteen years.

¶ 12. Presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care. The Stuarts have one minor child, Tanner, who was fifteen years old at the time of the hearing and requires no childcare.

¶ 13. Age of the parties. Karon is fifty-five years old, and David is fifty-two years old.

¶ 14. Standard of living of the parties, both during the marriage and at the time support is determined. The Stuarts had a nice home and enjoyed a comfortable standard of living during their marriage. After the divorce, neither party will be able to maintain the same standard of living to which they were accustomed during the marriage.

¶ 15. Tax consequences of the spousal support order. Karon would be taxed on any alimony award payments, and David would receive a tax deduction for such payments.

¶ 16. Fault or misconduct. Although the parties agreed to an irreconcilable differences divorce, testimony was presented alleging that Karon committed adultery early in the marriage. Evidence was also presented to establish that David had an adulterous relationship in 2001.

¶ 17. Dissipation of assets by either party. Within the first few months of their marriage, Karon accumulated $8,000 in credit card debt. David paid off this debt by cashing out a retirement account and a life insurance policy. Later in the marriage, Karon accumulated another $8,500 in credit card debt. However, Ka-ron testified that the latter debt was incurred to pay for basic necessities such as food, clothing, and medical expenses.

¶ 18. Any other factor deemed to be just and equitable. The chancellor considered no other factors.

¶ 19. The chancellor’s Armstrong findings were supported by the testimony of each party as well as their Rule 8.05 financial statements. Accordingly, we affirm the chancellor’s award of alimony to Karon in the amount of $250 per month.

II. WHETHER THE CHANCELLOR ERRED IN AWARDING ATTORNEY’S FEES.

¶ 20. An award of attorney’s fees will not be disturbed unless the chancellor abused his discretion or committed manifest error. Chesney v. Chesney, 849 So.2d 860, 862(¶ 9) (Miss.2002). Generally, attorney’s fees should only be awarded where the moving party has demonstrated an inability to pay. Watson v. Watson, 724 So.2d 350, 857(¶ 29) (Miss.1998). However, attorney’s fees may also be properly awarded where one party’s actions have caused the opposing party to incur additional legal fees. Chesney at 863(¶ 12).

¶ 21. The chancellor found that Karon had illustrated an inability to pay her attorney’s fees of $36,646. Although Karon receives substantial sums of money from the sale of chickens, a majority of that money goes toward the payment of loans acquired to operate the business. .Further, she received little or no property in the settlement agreement which can be easily liquidated. The chancellor also noted that one of David’s attorneys filed a plethora of motions which he did not pursue, but which required Karon’s attorney to expend a significant amount of time reviewing and discussing with his client. The chancellor found that many delays were caused because David had two attorneys, and on several occasions the court received the “runaround” where one attorney could not proceed because the other had more knowledge of the matter, but when the other attorney was contacted, he advised the court that the former should be addressed. Accordingly, we find that the chancellor was within his discretion and committed no manifest error in awarding Karon $10,000 in attorney’s fees.

III. WHETHER THE CHANCELLOR ERRED IN FAILING TO GRANT APPELLANT A SPEEDY TRIAL.

¶ 22. David argues that the chancellor erred in not granting him a speedy trial, the result of which caused him expenses he would not have otherwise incurred. To support his argument, David cites to the U.S. and Mississippi constitutional due process provisions and Article 3, Section 24 of the Mississippi Constitution. Although David cites to these provision, he provides no analysis to illustrate how he was denied due process or access to court.

¶ 23. Article 3, Section 14 of the Mississippi Constitution provides, “No person shall be deprived of life, liberty, or property except by due process of law.” The guarantee of procedural due process includes the right to a fair and impartial trial. Brown by & Through Webb v. Blackwood, 697 So.2d 763, 769 (Miss.1997). A due process violation occurs where a party is not allowed a full and complete hearing before being deprived of life, liberty or property. Childers v. Childers, 717 So.2d 1279, 1281(¶ 8) (Miss.1998). David was allowed a full, complete and impartial hearing. He called witnesses, was afforded the right to cross-examine, and presented documentary evidence to the court. David’s due process argument is completely misplaced.

¶24. Article 3, Section 24 of the Mississippi Constitution provides, “All courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay.” Necessary delay does not violate the constitutional prohibition against delayed justice. Warren v. Miss. Workers’ Compensation Comm’n, 700 So.2d 608, 616(¶ 34) (Miss.1997) (citing Guiseppe v. Cozzani, 248 Miss. 588, 594, 159 So.2d 278, 281 (Miss.1964)). The record provides several reasons which necessitated delay: one of David’s attorneys was injured in an automobile accident; Karon was hospitalized for chest pains shortly before the case was reset for trial; the parties jointly agreed to reset the trial for a fourth time in order to reach a property settlement agreement and narrow the issues to be decided at trial; Karon was injured in an automobile accident one week before the next scheduled hearing; and one of David’s attorneys was hospitalized on the date of the next scheduled hearing. Not only were the delays necessary, but they were also caused as much by David as Karon.

¶ 25. Finally, we note that the constitutional guarantee to a speedy trial extends only to criminal defendants. U.S. Const, amend. VI, Miss. Const, art. Ill, § 26. Clearly, David is not a criminal defendant, and this argument is not only devoid of merit, but is absolutely frivolous. While the timely resolution of divorce cases is a desirable objective, it is not an affirmative right for which relief may be granted.

IV. WHETHER THE CHANCELLOR ERRED IN FINDING APPELLANT IN ARREARS FOR NON-PAYMENT OF ONE CHILD SUPPORT PAYMENT.

¶ 26. Prior to trial, David was ordered to pay temporary child support in the amount of $212.50 on the first and fifteenth of every month. At trial Karen testified that in April of 2003, David had missed two payments, but sent one of them later. David testified that he had only been late on one payment in April of 2003 because the post office sent the check back to him, which he in turn sent back to Karon.

¶ 27. The chancellor’s order erroneously stated that David failed to provide the court with proof of payment for each child support statement. David submitted exhibit number 84 into evidence which was a spreadsheet in which he listed the dates and check numbers of each child support payment he sent to Karon. David also submitted exhibit number 85 into evidence which included his bank statements from April 2001 to November 2004, which show all of the corresponding checks from his child support payment spreadsheet and the dates which they were presented for payment. After examining David’s spreadsheet and bank statements we find that David did, in fact, make each ordered payment and presented substantial credible evidence to prove the same. We reverse and render this issue.

V. WHETHER THE CHANCELLOR ERRED IN GRANTING APPEL-LEE ONE-HALF OF APPELLANT’S THRIFT SAVINGS PLAN.

¶ 28. David argues on appeal that the chancellor failed to determine the marital assets of the parties. He further argues that his Thrift Savings Plan is his non-marital property. However, on September 23, 2003, David and Karon executed a property settlement agreement. One of the provisions of the agreement stated that each party will receive one-half of David’s Thrift Savings Plan as of the date of the separation. Both parties and their attorneys signed the agreement which was filed in the chancery court that day. The chancellor incorporated the agreement in the final judgment.

¶ 29. Property settlement agreements which have been approved by the court and incorporated in the judgment of divorce are treated like any other legally binding contract. West v. West, 891 So.2d 203, 210(¶ 13) (Miss.2004) (citing In re Estate of Hodges, 807 So.2d 438, 445(¶ 26) (Miss.2002)). David did not raise any valid defense to the enforcement of the contract before the chancellor, nor has he presented this Court with such an argument. Rather, he claims that the chancellor failed to independently perform an equitable distribution, even though the division of marital property had already been agreed upon prior to the hearing. This issue is without merit.

¶ 30. THE JUDGMENT OF DIVORCE ENTERED BY THE LEAKE COUNTY CHANCERY COURT IS AFFIRMED. HOWEVER, THAT PORTION OF THE JUDGMENT FINDING DAVID LANEIL STUART IN ARREARS ON CHILD SUPPORT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: BARNES, J.,

text:
    Billy Ray FORD, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00478-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.
    Rehearing Denied April 10, 2007.

      Jonathan Michael Farris, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Billy Ray Ford, Jr. was convicted of perjury by a Forrest County jury. He was sentenced as a habitual offender to ten years in the custody of the Mississippi Department of Corrections without the benefit of parole. Ford perfected this appeal following denial of his post-trial motions for new trial and judgment notwithstanding the verdict (“JNOV”). On appeal, Ford contends that (1) the prosecution failed to satisfy the “minimum of two witnesses or one witness and corroborating circumstances” requirement, and (2) Ford’s perjury conviction was improper because “he did not in a direct and specific manner make the false statement he is accused of making....” Finding no reversible error, we affirm the conviction and sentence.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On May 20, 2002, Ford pled guilty pursuant to a plea agreement and was convicted in the Circuit Court of Forrest County, Mississippi of receiving stolen property. Ford was initially charged with residential burglary, but this charge was reduced as part of the plea agreement. The agreement provided for a five year sentence in the custody of the Mississippi Department of Corrections with three years suspended on unsupervised probation and two years to serve. Ford was given credit for time already served in custody awaiting trial, satisfying the two year service portion of the sentence. As a result, the three years of unsupervised probation was all that remained to be served by Ford. In exchange for these concessions by the State, Ford was required to leave the jurisdiction of Forrest, Perry, and Lamar Counties and remain out of these counties for the duration of his three year probation period. This condition was made a part of the “Entry of Guilty Plea and Judgment of Court” entered on May 20, 2002.

¶ 3. On the evening of October 13, 2003, officers with the Hattiesburg Police Department, investigating an incident reported earlier that evening, were led to an apartment complex where Billy Ray Ford was located. This apartment complex was located in Hattiesburg, Forrest County, Mississippi. Believing that Ford was involved in the incident that was reported earlier that evening, the Hattiesburg police officers took Ford into custody.

¶ 4. On November 10, 2003, an affidavit was filed in the Forrest County Circuit Court for violation of probation, alleging that Ford “violated the condition of his suspended sentence by being present in Forrest County, Mississippi on 10-13-2003 when he was prohibited from being in Forrest County by the terms of his probation.” A revocation hearing was held on March 3, 2004, in the Forrest County Circuit Court to determine whether Ford violated the terms of his plea agreement and whether, as a result, his probation should be revoked. The State of Mississippi was represented by the district attorney for Forrest County while the defendant Ford appeared pro se.

¶ 5. During the course of the hearing, Ford repeatedly referenced cases that he had pending in federal court and stated that he “was subpoenaed back here for a hearing on the matter for which I filed the paperwork in the federal court building.” Believing that Ford was affirmatively representing that he was in Hattiesburg on October 13, 2003, by court order, District Attorney Jon Mark Weathers requested that Ford be placed under oath. Testifying now under oath, Ford was questioned at some length regarding his presence in Hattiesburg on October 13, 2003. More specifically, Judge Helfrich asked Ford questions to determine why Ford was in Hattiesburg on the day in question, as Ford was not disputing that he was physically present on October 13. It is testimony elicited during this line of questioning that was the basis for Ford’s perjury charge and conviction. The following is an excerpt from the revocation hearing transcript containing the statements for which Ford was charged and convicted of perjury:

THE COURT: So you’re alleging that on October 13 of 2003 you were summonsed to be back before the federal court?
DEFENDANT FORD: No. You said that.
THE COURT: No, I’m saying is that what you’re alleging?
DEFENDANT FORD: What are you alleging that I did on October 13?
THE COURT: It’s alleged that you were in this jurisdiction in violation—
DEFENDANT FORD: And I already told you—
THE COURT: Mr. Ford, do not interrupt me again. It is alleged that you were in this jurisdiction on that date in violation of this Court’s order. That’s the allegation.
DEFENDANT FORD: And the allegation I’m asking for you to is I was summoned back here to this town.
THE COURT: By the federal court— DEFENDANT FORD: And this case was not dismissed until after October 13. It was not dismissed until after this alleged victim keep trying to throw up in my face it was still in the federal court building. And as pro se, I’m claiming my right to as an attorney I have a right to go in and out of that building just like they got rights in here as an attorney.
THE COURT: But you’re stating—
DEFENDANT FORD: I’m claiming today—
THE COURT: You’re claiming you were subpoenaed to be here or summonsed to be here by the Court for a hearing in that matter on the day?
DEFENDANT FORD: That’s what I said. I swore an oath to that,

¶ 6. After the above exchange, the hearing was recessed so that members of Weathers’ staff could search the federal court files to determine whether Ford was telling the truth regarding the federal cases. Pursuant to this search, it was determined that Ford did in fact have two active federal cases still pending at that time but there were no documents which indicated that Ford was subpoenaed or was otherwise required to be in Hatties-burg on October 13. The following represents the colloquy that transpired after the hearing reconvened:

THE COURT: Let the record reflect we’ve reconvened. Do you have the file?
MR. WEATHERS: Yes, sir. If it please the Court, I’m going to hand you a United States District Court civil file, Billy Ray Ford versus Forrest County, et al., ... which was a case pending in the year 2003. In addition to that, there was another case that was pending.... The file should reflect there was a writ of habeas corpus ad testificadum issued by the clerk of the court on the 18th day of September 2002 requiring Mr. Ford to be present at the courthouse in Hat-tiesburg on May 29, 2008, at 9:00 a.m. That, as the file will reflect, applied to both cases and those are the only two cases pending at the time, so the file should reflect that he had no business[ ] being here and was not subpoenaed to the United States District Court on October 13, 2002, as he previously stated under oath here today.
DEFENDANT FORD: I want to also state that that don’t have nothing to do with this case that I told you that I was subpoenaed back here for. The case I’m talking about is Billy Ray Ford versus Billy Magee, etcetera all. He never called this case out. The case number is 2:02cvl38 — the date I was subpoenaed back here was June 29. It didn’t have nothing to do with May 29.
THE COURT: That’s correct. The date was for the cause numbers 2:02cv555PG, Billy Ray Ford versus Forrest County, et al. and 2:02cvl38PG, Billy Ray Ford versus Billy Magee, et al. the date of the hearing was May 29, 2003. Do you disagree with that[?]
DEFENDANT FORD: It was May or June?
THE COURT: May 29, 2003, is what the court file reflects. Do you have anything further, Mr. Ford?
DEFENDANT FORD: Well, I’m not going to be able to call no witnesses?
THE COURT: What witnesses, Mr. Ford? This court file speaks for itself.
DEFENDANT FORD: What did you say?
THE COURT: I said this file speaks for itself.
DEFENDANT FORD: So when was I sentenced? What day was I sentenced not to come back to town?
THE COURT: May 22, 2002.
DEFENDANT FORD: May 22, 2002. And I was subpoenaed back here when?
THE COURT: May 29, 2003.
DEFENDANT FORD: 2003. I was subpoenaed back here to this town after the court order. After the court order. It wasn’t before. It was after. So that puts me in direct violation of the court order not to come back to town.
THE COURT: Okay. But that’s not what you’re before the Court on. You’re before the Court on being back in this town on October 13, 2003.
DEFENDANT FORD: I haven’t been convicted of any crime, and I got an affidavit right here. This court was not dismissed until February 9, 2004.
THE COURT: That has nothing to do—
DEFENDANT FORD: I am pro se. I have liberty in that federal court building. I have a right.
THE COURT: And if you were simply in this jurisdiction for a scheduled court hearing or by order of that Court, you would be correct. I find you are in violation of the terms and conditions of the order of May 22, 2002, and hereby revoke the same. That will be the order of the Court and remand you to the custody of the sheriff for implementation of the sentence. (COURT ADJOURNED)

¶ 7. Believing that Ford intentionally testified falsely at the revocation hearing in order to avoid having his probation revoked, the district attorney presented the case for perjury to the grand jury which indicted Ford as follows:

Billy Ray Ford, Jr. in Forrest County, Mississippi, on or about March 03, 2004, did unlawfully, willfully, feloniously, and corruptly testify falsely to a material matter under oath ... by testifying that he, Billy Ray Ford, Jr., returned to Forrest County, Mississippi in apparent violation of the Court’s Order of May 22, 2002, only because Billy Ray Ford, Jr. was under Federal Subpoena to be present in Court on a certain date and time which included October 13, 2003; for the purpose of avoiding punishment for violating the terms of the Court’s Order of May 22, 2002, by the Circuit Court Judge of the City of Hattiesburg, Mississippi, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

¶ 8. Ford was brought on for trial in the Circuit Court of Forrest County on August 9, 2004, to face charges of perjury. At this trial, Weathers, who was the district attorney at Ford’s revocation hearing, was asked whether Ford “specifically stood up before this Court under oath and represented to the Court that he was subpoenaed to be in federal court on October 13, 2003?” In response, Weathers stated: “[t]hat was the gist of his testimony from the beginning to end, when he began to tell the Court why he was here.” Weathers further testified that the entire hearing was about October 13 and that the reference to “the day” in the following exchange was understood by everyone — including Ford — to be referring to October 13:

THE COURT: You’re claiming you were subpoenaed to be here or summonsed to be here by the Court for a hearing in that matter on the day?
DEFENDANT FORD: That’s what I said. I swore an oath to that.

(Emphasis added). The prosecution then introduced evidence that showed that Ford in fact had not been required to be in Hattiesburg on October 13, 2003, by subpoena, summons, or other court order.

¶ 9. At the close of the State’s case in chief, counsel for Ford moved for a directed verdict which was denied by the trial judge. The defense then rested, choosing not to call any witnesses. The jury returned a guilty verdict, and Ford was sentenced as a habitual offender to ten years in the custody of the Mississippi Department of Corrections. Ford then moved for JNOV, which was denied by the trial court. Ford subsequently perfected this appeal urging that the jury’s verdict was against the overwhelming weight and sufficiency of the evidence. For reasons that we will now discuss, we find no merit in Ford’s assertions of error and therefore affirm the jury’s verdict.

ANALYSIS

¶ 10. On appeal, Ford challenges both the weight and sufficiency of the evidence presented at trial to convict him of perjury. The State maintains that sufficient evidence exists supporting the jury’s verdict and that the verdict should not be overturned. We agree.

¶ 11. Our authority to disturb a jury’s verdict on appeal is very limited. Melton v. State, 723 So.2d 1156, 1161(¶29) (Miss.1998) (citing Benson v. State, 551 So.2d 188, 192-93 (Miss.1989)). In determining whether the verdict is against the overwhelming weight of the evidence, we must “view[] all of the evidence in the light consistent with the verdict and ... give the State all favorable inferences which may be drawn from the evidence.” Id. (quoting Strong v. State, 600 So.2d 199, 204 (Miss.1992)). “[W]e will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Busk v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). The proper remedy under this standard is to grant a new trial. Id.

¶ 12. In analyzing the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 843(¶ 16) (citations omitted). Only where “the facts and inferences so considered point in favor of the defendant with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty” will we reverse and render. Smallwood v. State, 584 So.2d 733, 740 (Miss.1991) (quoting Winston v. State, 479 So.2d 1093, 1095-96 (Miss.1985)).

¶ 13. Mississippi’s perjury statute provides, in pertinent part, that “[ejvery person who shall wilfully and corruptly swear, testify, or affirm falsely to any material matter under any oath ... shall be guilty of perjury....” Miss.Code Ann. § 97-9-59 (Rev.2000). The facts in the case before us are not disputed. Ford does not assert that the revocation hearing transcript incorrectly reflects what was said during the proceedings nor does he contend on appeal that he was required by federal court order to be in Hattiesburg on October 13, 2003. Instead, Ford argues on appeal that (1) the State failed to satisfy the “minimum of two witnesses or one witness and corroborating circumstances” requirement, and (2) Ford’s perjury conviction was improper because “he did not in a direct and specific manner make the false statement he is accused of making.... ” Consequently, according to Ford, the State failed to produce sufficient proof that he “wilfully and corruptly” testified falsely as alleged in Ford’s indictment for perjury.

¶ 14. Ford correctly points out that in order to convict on a charge of perjury, the prosecution must prove the falsity of the accused’s statement by a minimum of two witnesses, or by one witness and corroborating circumstances. Hammett v. State, 797 So.2d 258, 262(¶ 13) (Miss.Ct.App.2001) (citing McFee v. State, 510 So.2d 790, 792 (Miss.1987)). However, it is clear from the record that the State met this burden, as it provided the testimony of District Attorney Jon Mark Weathers, United States Federal District Court Clerk Michael Rigdon, and introduced into evidence the federal documents that proved that Ford was not under court order to be in Hattiesburg on October, 13, 2003. Ford incorrectly argues that this “minimum of two witnesses or one witness and corroborating circumstances” standard is also required to prove that the accused actually said what he is accused of having said under oath. We disagree with this characterization of the “two witness” requirement. In McFee, the Mississippi Supreme Court recognized “that the common law rule that one witness and other corroborating circumstances must be proved to sustain a perjury conviction refers only to proof of the falsity of the accused’s statement. The necessity of corroboration does not extend to proof of the other elements of the crime.” McFee, 510 So.2d at 793. The “other element of the crime” at issue in the case sub judice is Ford’s interpretation of Judge Helfrich’s question and his state of mind with respect to his response, which brings us to Ford’s second argument.

¶ 15. Ford’s second argument on appeal is essentially that the question posed by Judge Helfrich at the revocation hearing regarding whether Ford was subpoenaed to be in Hattiesburg “on the day” did not specify a particular day and hence it cannot be proven that Ford’s response of “[t]hat’s what I said. I swore an oath to that” was in reference to October 13. While we acknowledge that this lack of specificity in Judge Helfrich’s question creates some ambiguity, we find that it is for the jury to resolve this ambiguity.

¶ 16. Ford cites several federal cases to support his contention that his response to Judge Helfrich’s question could not be the basis for a perjury charge. According to the United States Supreme Court, for testimony to be considered perjury, the witness must have testified “with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993) (citations omitted). Unresponsive answers that are literally true cannot, according to the Court, sustain a conviction for perjury, even if the witness knowingly and intentionally gives misleading answers. Bronston v. United States, 409 U.S. 352, 357-59, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973). In this regard, “[a] jury should not be permitted to engage in conjecture” as to whether an unresponsive but literally true answer “was intended to mislead or divert the examiner!.]” Id. at 359, 93 S.Ct. 595. A witness’s state of mind is relevant only as to whether or not he believes his testimony to be true. Id. It is the questioner’s responsibility to “flush out the whole truth” when faced with unresponsive, misleading, and evasive testimony. Id. We find the reasoning employed by the United States Supreme Court in these cases persuasive yet inapplicable to the case sub judice.

¶ 17. In Bronston, the defendant was asked whether he presently had any accounts in Swiss banks, to which he truthfully replied: “No, sir.” Id. at 354, 93 S.Ct. 595. He was then asked whether he had ever had any Swiss bank accounts, to which he replied: “The company [that he worked for] had an account there for about six months, in Zurich.” The Court acknowledged that the question called for the defendant’s personal account history yet his answer gave the company’s account history, and that the answer was therefore unresponsive. Given the fact that the defendant did have a Swiss bank account at some point in the past, the answer was not only unresponsive but misleading as well, as the implication of his answer was that he had never had a personal Swiss bank account when he in fact had. Despite this acknowledgment, the Court concluded that “any special problems arising from the literally true but unresponsive answer are to be remedied through the ‘questioner’s acuity’ and not by a federal perjury prosecution.” Id. at 362, 93 S.Ct. 595.

¶ 18. We are not presented with the same circumstances in the case before us as those presented in Bronston. In the case sub judice, Judge Helfrich posed the following question to Ford at the revocation hearing: “You’re claiming you were subpoenaed to be here or summonsed to be here by the Court for a hearing in that matter on the day ? ” We conclude that if Ford understood Judge Helfrich’s reference to “the day” to be referring to October 13, 2003, then Ford’s response of “[t]hat’s what I said. I swore an oath to that” was indeed false as it was clearly established at trial and is undisputed on appeal that Ford was not required by subpoena or summons to be in Hattiesburg on October 13. Under this understanding of the question posed, Ford did not recite a literal truth that was simply unresponsive or misleading, rather he willfully and intentionally provided false testimony when he gave an affirmative response to the question posed to him. The only questions left to be resolved are (1) whether it is the province of the jury to determine the meaning attached to a question by a witness, and (2) whether there was sufficient evidence for a jury to make that determination.

¶ 19. “[Pjerjury cases, like all criminal cases, are susceptible to proof by circumstantial evidence, and in fact are peculiarly likely to be proven in this manner because one of the elements of the crime is that the defendant knew his statement was false when he made it.” United States v. Chapin, 515 F.2d 1274,1280-81 (D.C.Cir.1975) (citing Young v. United States, 212 F.2d 236, 241 (D.C.Cir.1954); Gebhard v. United States, 422 F.2d 281, 287-88 (9th Cir.1970); Behrle v. United States, 100 F.2d 714, 715-16 (D.C.Cir.1938)). The government is not required in a perjury prosecution to elicit an admission by the defendant “as to what he thought the question meant at the time he answered it in order for the jury to make that determination.” Id. at 1281. Pertinent to the jury’s determination is the context of the question, the answer given, and other extrinsic evidence which may bear on Ford’s understanding of the question at the time he answered it. See U.S. v. Culliton, 328 F.3d 1074, 1079 (9th Cir.2003) (citing United States v. Sainz, 772 F.2d 559, 561 (9th Cir.1985) (“[W]e must look to the context of the defendant’s statement to determine whether the defendant and his questioner joined issue on a matter of material fact to which the defendant knowingly uttered a false declaration.”))

¶ 20. In light of these considerations, we find that it was within the province of the Forrest County jury to determine what meaning Ford attached to the question posed by Judge Helfrich at the revocation hearing. Consequently, the jury was permitted to determine that Judge Helfrich was referring to October 13, 2003, when he used the words “the day” in his question and that Ford understood this to be the case. We do not find the verdict to be against the overwhelming weight of the evidence.

¶ 21. We further find that sufficient evidence was presented at trial for the jury to make the determination that Ford understood “the day” to be referring to October 13, 2003. As district attorney Weathers testified at trial, the only issue before the court at the revocation hearing was whether Ford was in Hattiesburg on October 13, 2003, and, if so, the reason for Ford’s presence in Hattiesburg on October 13. According to the trial transcript, Weathers testified that “[wjhen the Court and everybody is talking about that day or referring to a day, the only day at issue is why Billy Ray Ford was in Hattiesburg, Forrest County, Mississippi, on October 13, 2003, in violation of his May 20, 2002, court order.... That’s it. That’s the day.” In addition to Weathers’ testimony, a redacted version of the revocation hearing transcript was introduced into evidence, so the jury was able to determine first hand the context of the question. See United States v. Boone, 951 F.2d 1526, 1534 (9th Cir.1991) (“In evaluating ... the question’s ambiguity, the court must consider the context in which the question was asked....”)

¶ 22. We conclude that the verdict of the Forrest County jury was supported by sufficient, substantial, and credible evi-denee, and was not against the overwhelming weight of the evidence. Accordingly, we affirm Ford’s conviction and sentence.

¶ 23. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF PERJURY AND SENTENCE OF TEN YEARS WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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

      . "[P]robationers (and parolees) do not 'have, per se, a right to counsel at revocation hearings.' ” Riely v. State, 562 So.2d 1206, 1209 (Miss.1990) (citations omitted).

      . The United States District Court for the Southern District of Mississippi has a federal court building in Hattiesburg, Forrest County, Mississippi.

      . Weathers submitted at trial that if Ford had been required to be in Hattiesburg pursuant to federal court order on October 13, 2003, Weathers would not have pursued revocation of Ford's probation.

      . The statements which were the basis for the perjury charge and conviction are in italics. The preceding questions and answers are included to provide context.

      . The colloquy at the revocation hearing and the language in the indictment refer to the "Court’s Order of May 22, 2002.” However, the record before us indicates that the "Entry of Guilty Plea and Judgment of Court” was entered on May 20, 2002. The May 20, 2002 judgment contains the condition requiring Ford to stay out of Forrest, Perry, and Lamar counties.

      . The federal perjury statute at issue in Dunnigan "parallels typical state-law definitions of perjury.” Dunnigan, 507 U.S. at 94, 113 S.Ct. 1111.


text:
    Patrick L. JONES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-CP-01047-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.
    Rehearing Denied April 24, 2007.

      Patrick L. Jones (Pro Se), attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before MYERS, P.J., BARNES, and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Patrick L. Jones, proceeding pro se, appeals the Circuit Court of Warren County’s denial of his motion for post-conviction relief. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On December 3, 2001, Patrick Jones entered a plea of guilty to two indictments presented against him for the sale and delivery of a controlled substance. Jones was sentenced to eighteen years in the custody of the Mississippi Department of Corrections, with twelve years to serve, six years suspended, and five years of post-release supervision. An order to this effect was entered on December 14, 2001. On January 20, 2004, Jones filed a motion for post-conviction relief in the Circuit Court of Warren County alleging that (1) his guilty plea was involuntary as a matter of law; (2) he received ineffective assistance of counsel; (3) the State should have proceeded under a single indictment rather than two; (4) his sentence was unconstitutionally vague; and (5) the cumulative effect of the preceding errors constituted plain error. On May 3, 2005, the circuit court denied Jones’s motion for post-conviction relief, and Jones subsequently perfected this appeal.

STANDARD OF REVIEW

¶ 3. On review of a trial court’s denial of post-conviction relief, we will not disturb that court’s factual findings unless they are found to be clearly erroneous. Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999). The appropriate standard for questions of law, however, is de novo. Rice v. State, 910 So.2d 1163, 1164(¶ 4) (Miss.Ct.App.2005) (citing Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)).

ISSUES AND ANALYSIS

I. WHETHER JONES’S GUILTY PLEA WAS ENTERED KNOWINGLY AND VOLUNTARILY

¶ 4. Jones asserts in his statement of issues that the trial court failed to find a factual basis for his guilty plea and therefore the guilty plea was “involuntary as a matter of law.” We find Jones’s contention without merit as there clearly were two distinct factual bases for Jones’s guilty plea.

¶ 5. First, Jones admitted that he committed both crimes for which he was entering a plea of guilty. The trial judge explicitly asked Jones during the plea colloquy, in two separate questions, whether he sold cocaine to a cooperating individual working undercover on the dates of April 30, 2001, and May 9, 2001. To both questions Jones affirmatively answered, ‘Yes, sir.” According to our supreme court, “[a] factual basis for a plea may be established by the admission of the defendant.” Boddie v. State, 875 So.2d 180, 186(¶ 19) (Miss.2004) (citing Templeton v. State, 725 So.2d 764, 766 (Miss.1998)). The colloquy between the trial judge and Jones, which included the admission by Jones, clearly established a factual basis for the guilty plea and would have been sufficient to satisfy the factual basis requirement.

¶ 6. Second, the trial judge asked the assistant district attorney during the plea colloquy what the State expected the evidence to show at trial. He informed the court that for both the April 30 incident and the May 9 incident, the State had video and audio recordings of the cocaine sales, crime lab confirmation that the substances from the two sales were indeed cocaine with both constituting a tenth of a gram of cocaine, and five witnesses — comprised of three police officers and the two crime lab technicians — prepared to testify. We find Jones’s argument that there was no factual basis for his guilty plea to be without merit as there were two factual bases for the guilty plea — Jones’s own admission and the district attorney’s representations to the court.

II. WHETHER JONES WAS AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL

¶ 7. Jones contends that he was provided ineffective assistance of counsel prior to and during his guilty plea. Specifically, Jones claims that there was a conflict of interest in that Jones’s attorney, Richard Smith Jr., was “committed to becoming the district attorney of the same district in which he was representing petitioner [and] had an agenda to achieve conviction of petitioner.” Because of this conflict and alleged “agenda,” Jones contends that his attorney never considered any potential defenses to the drug charges, failed to adequately investigate the charges against Jones, and recommended that Jones plead guilty to the charges.

¶ 8. This Court applies the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) when evaluating a claim of ineffective assistance of counsel. Under the Strickland standard, “the claimant must show (1) that counsel’s performance was deficient and (2) that the deficient performance was prejudicial to the defendant in the sense that it undermined confidence in the outcome.” Alexander v. State, 605 So.2d 1170, 1173 (Miss.1992) (citing Wilson v. State, 577 So.2d 394, 396 (Miss.1991)). In the context of a guilty plea, the claimant must demonstrate that his counsel’s performance fell below the minimal range of competence expected of attorneys in criminal cases and that but for that sub-standard performance, the claimant would have insisted on going to trial. Id.

¶ 9. We agree with the trial court that Jones has failed to provide sufficient evidence demonstrating his attorney’s deficiency. With respect to Jones’s assertion of a conflict of interest, Jones attached, as an exhibit to his petition for post-conviction relief, a campaign flyer announcing the candidacy of Richard Smith, Jr. for the office of district attorney. Nowhere does this flyer — or any other document provided by Jones — indicate the year for which Smith was seeking election. Without any evidence to establish that a conflict of interest existed at the time of Smith’s representation of Jones on or prior to December 14, 2001, we find Jones’s rebanee on a conflict of interest as the basis for an ineffective assistance claim to be ungrounded.

¶ 10. Jones also claims that Smith’s failure to “investigate and interview the witnesses which could and would have supported a possible defense of entrapment or other mitigating information” constituted ineffective assistance of counsel. Again, we agree with the trial court and find that this argument is unsubstantiated by the record. Jones admits in his brief that he cannot name the witnesses that Smith should have interviewed nor does he disclose the “mitigating information” that Smith allegedly failed to uncover. Without such evidence, the trial court could not, nor can we, find that “counsel’s performance was deficient” as required by the first prong of the standard set forth in Strickland. Consequently, Jones has not established that Attorney Smith’s representation during and prior to his guilty plea was deficient or prejudicial to Jones. Accordingly, we find Jones’s claim as to this issue to be without merit.

III. WHETHER THE STATE IMPROPERLY INDICTED JONES UNDER MULTIPLE INDICTMENTS

¶ 11. Jones asserts that the two charges stemming from the sale of cocaine on April 30, 2001, and May 9, 2001, should have been pursued as multiple counts under a single indictment rather than as separate indictments. Jones argues that any possible entrapment defense was prejudiced by the State’s improperly pursuing the charges under two separate indictments. First, we agree with the trial court that Jones does not demonstrate how he would have been prohibited from asserting an entrapment defense at trial. Second, and much more detrimental to Jones’s argument, the statute at issue makes single, multi-count indictments permissive, not mandatory.

¶ 12. Jones relies on Mississippi Code Annotated section 99-7-2(1) (Rev.2000) for authority. In relevant part, this section provides that:

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.

¶ 13. While the April 30 and the May 9 charges may have been “transactions connected together or constituting parts of a common scheme or plan,” nothing in the language of the statute, cited above, makes it mandatory for the State to proceed under a single, multi-count indictment. To the contrary, the statute clearly states that the offenses “may be charged in the same indictment.” Id. (emphasis added).

¶ 14. Jones states in his brief that “[t]he law is clear that these charges should have been pursued by way of a multiple count indictment....” Jones cites Eakes v. State, 665 So.2d 852 (Miss.1995) and Allman v. State, 571 So.2d 244 (Miss.1990) to support his assertion. However, both Eakes and Allman presented the converse of the situation with which we are presented, i.e., in each of those respective cases, the charges were pursued under a single indictment and the defendants contended that the charges should have been pursued under multiple indictments. Eakes, 665 So.2d at 860-62; Allman, 571 So.2d at 248-49.

¶ 15. Neither Eakes nor Allman lend support to Jones’s argument that a single indictment was mandatory under the circumstances of the case sub judice. These two opinions discussed the factual circumstances necessary for a single, multi-count indictment to be proper. Id. We read both Eakes and Allman to be consistent with the clear language of section 99-7-2(1) that, once these factual circumstances are satisfied, proceeding under a single indictment is permissive and not mandatory. See Eakes, 665 So.2d at 861 (stating that “either a common transaction or occurrence is required or, if the transactions occurred at different times, the time period between them must be insignificant in order that a [single,] multi-count indictment be permissible ”) (emphasis added). Accordingly, we find Jones’s assertion to the contrary to be without merit.

IV. WHETHER JONES’S SENTENCE IS UNCONSTITUTIONALLY VAGUE OR SUBJECT TO MULTIPLE INTERPRETATIONS

¶ 16. Jones’s fourth and final issue is that his sentence, entered by court order on December 14, 2001, is unconstitutionally vague and subject to more than one interpretation. We find this contention to be wholly without merit.

¶ 17. Jones appears to recite verbatim, in his brief, the language contained in the “Sentencing Order” entered by the Warren County Circuit Court on December 14, 2001. Looking only to the language recited by Jones in his brief, there seems to be some vagueness in the circuit court’s language. However, comparing the language attributed to the circuit court by Jones with the circuit court’s actual language contained in the “Sentencing Order,” the only vagueness to be found is contained in Jones’s brief. The actual language used by the circuit court is as follows:

IT IS THEREFORE ORDERED AND ADJUDGED that the Defendant, for the crime of sale of cocaine is hereby sentenced to eighteen (18) years with twelve (12) years to serve in the custody of the Mississippi Department of Corrections and six (6) years suspended with five (5) years post-release supervision by the Mississippi Department of Corrections....
The defendant is fined $5,000 and the Court hereby suspends that fine. This sentence to run concurrent with Warren County Cause No. 010287-CR-V.

¶ 18. We fail to find anything about the above language vague. Jones argues that the court did not specify whether “the 6 years suspended was to be subtracted from the 18 years MDOC or to be subtracted from the 12 years to serve. It could therefore be subtracted from either or both.” We find this argument unpersuasive. Jones was clearly sentenced to eighteen years; he was clearly given twelve years to serve; eighteen minus twelve leaves six years suspended, which is what the language in the sentencing order reflects. Only by misquoting the circuit court’s “Sentencing Order” does Jones make an even remotely tenable argument. By analyzing the circuit court’s actual language, however, it is apparent that Jones’s argument is wholly without merit.

V. WHETHER THE CUMULATIVE EFFECT OF THE PRECEDING ERRORS CONSTITUTES PLAIN ERROR

¶ 19. Having found no merit in any of the preceding assignments of error, we find no cumulative error arising to the level of plain error. See Sheffield v. State, 844 So.2d 519, 525(¶ 16) (Miss.Ct.App.2003). We therefore find this assignment is without merit.

CONCLUSION

¶ 20. Finding all of Jones’s claims to be without merit, we affirm the judgment of the circuit court denying post-conviction relief.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY DENYING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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

      . In the circuit court’s order denying Jones’s petition for post-conviction relief, the court stated that Smith’s “campaign pledge occurred approximately one and one-half years” after Jones’s guilty plea and sentence. Evidence of this fact was not made a part of the record, and we are not in a position to take judicial notice of the date of Smith’s candidacy. However, the burden was on Jones to support his motion regarding the purported conflict of interest. Jones failed to meet this burden.

        . Jones's brief reflects the following language: "Sentenced to 18 years MDOC with 12 years to serve and 6 years suspended for a period of 5 years with 5 years post release supervision. The defendant is fined $5000.00 and the court hereby suspends that fine. This sentence is to run concurrent with cause 01-0287-CRV.”