author: GRIFFIS, J., for the Court. KING, C.J.,

text:
    WHITE OAK, LLC, Appellant v. TOUGALOO COLLEGE and Tougaloo College Economic Development Corporation, Appellees.
    No. 2004-CA-02213-COA.
    Court of Appeals of Mississippi.
    April 18, 2006.

      Patrick M. Rand, Canton, attorney for appellant.
    Tianna Shontel Hill, Walter H. Boone, Jackson, attorneys for appellees.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. White Oak, LLC (“White Oak”) appeals the entry of a summary judgment that dismissed its claims against Tougaloo College and Tougaloo College Economic Development Corporation (“Tougaloo EDC”). We reverse and remand for further proceedings.

FACTS

¶ 2. Tougaloo College is a private, nonprofit institution of higher education that is located in Madison County, Mississippi. Tougaloo College is governed by its Board of Trustees.

¶ 3. Tougaloo EDC is a non-profit organization established by the Tougaloo College Board of Trustees to develop the assets and resources of Tougaloo College for the benefit of the institution. Tougaloo EDC was formed to provide recommendations to Tougaloo College’s Board of Trustees regarding fund-raising and economic development activities. Tougaloo EDC’s Board of Directors were selected by the Tougaloo College Board of Trustees, and many of the Tougaloo EDC board members also serve as members of the Touga-loo College Board of Trustees.

¶ 4. White Oak is a real estate development corporation. White Oak began discussions with Tougaloo College and Touga-loo EDC to develop valuable real estate owned by Tougaloo College.

¶ 5. In May of 2000, Tougaloo College authorized Tougaloo EDC to sign a letter of agreement with White Oak that would authorize White Oak to undertake a preliminary feasibility study and to present a proposal to Tougaloo College and Tougaloo EDC for the development of a golf course, hotel and conference center. Under the terms of their agreement, Tougaloo College and Tougaloo EDC were under no obligation unless they accepted White Oak’s proposal.

¶ 6. In October of 2000, after receiving a response from White Oak, Tougaloo EDC was authorized to prepare an option and lease agreement between Tougaloo College and White Oak. The agreement was subject to review by Tougaloo College and Tougaloo EDC.

¶ 7. On February 23, 2001, Tougaloo EDC presented the Tougaloo College Board of Trustees with a final draft of the option and lease agreement. The agreement approved White Oak as the developer of real estate owned by Tougaloo College, and it included a proposal to build a golf course, hotel and conference center. The Tougaloo College Board approved the draft but required its legal counsel, Robert Gibbs, to review the agreement. The final draft of the agreement was sent to the Board members on March 29, 2001. In April of 2001, Gibbs sent a letter to the Tougaloo EDC approving the agreement. The letter was then sent to Tougaloo College.

¶ 8. On May 4, 2001, an “Option to Lease” (the “Option Agreement”) was entered “between Tougaloo Economic Development Corporation & Tougaloo College (“Optionor”) and White Oak LLC (“Op-tionee”)” The Option Agreement provided that White Oak then held a six month option to lease the property and other selected provisions stated:

This Option may be exercised by written notice signed and delivered by Optionee [White Oak] to Optionor [Tougaloo EDC and Tougaloo College], along with a written commitment for financing for construction of a Golf Course and Hotel Conference Center that is satisfactory to [White Oak] in the amount of not less than Seventeen Million Dollars ($17,-000,000.00).
Upon the signing of the Lease, [White Oak] shall pay [Tougaloo EDC and Tou-galoo College] $50,000.

A proposed lease agreement was attached to the Option Agreement as an exhibit.

¶ 9. By letter dated Mary 19, 2001, Robert Jones, the Chairman of Tougaloo EDC’s Board, advised White Oak that representatives of Tougaloo College and Tou-galoo EDC had inadvertently signed the lease agreement in addition to the Option Agreement. The letter also stated that the lease agreement would not be “operative until you have satisfied the requirements of the Option Agreement.”

¶ 10. On October 18, 2001, the Tougaloo EDC Board met. The parties give us different versions of the actions taken at this meeting and the effect of such actions.

¶ 11. White Oak offered the affidavit of Gary Light, the principal of White Oak. Light testified that he was ready and prepared to exercise the option. All documents necessary to exercise the option were presented and the funds were available. However, the Tougaloo EDC Board voted to extend the Option Agreement to allow Tougaloo EDC to seek tax exempt financing for the development. Light testified that he observed the Board vote to grant an extension, which was later confirmed in a letter that he received. Light stated that he relied on these representations to continue to pursue the project.

¶ 12. The minutes of the Tougaloo EDC board meeting of October 18, 2001 confirm Light’s affidavit. The minutes reflect that there was a discussion about the White Oak proposal. The Board discussed changing its bylaws to secure financing and the procedure to follow to make a decision about the financing issue. A motion was made, seconded and the Tougaloo EDC board approved a four-month extension on the Option Agreement until February of 2002. Two board members voted against the extension. The minutes also reflect the presence of counsel Robert Gibbs.

¶ 13. In this case, however, Tougaloo College and Tougaloo EDC argue that the Tougaloo EDC Board “voted to recommend to Tougaloo that the Option to Lease be extended.” We must candidly state that the evidence before this Court of that meeting simply does not support this claim. Indeed, there was no written evidence that the motion was merely a recommendation, that Tougaloo College would have to make the decision, or that any further authorization was required. Instead, the exact language used in the Tou-galoo EDC minutes was “a 4-month extension to February 2002 was requested. The motion was seconded ... and carried .... ”

¶ 14. The following day, on October 19, 2001, the Tougaloo College Board of Trustees met. The events of the previous day were known by many in attendance at this meeting because the two boards have a number of members who overlap and serve on both. The only evidence of this meeting in the record was the February 2002 report of Tougaloo EDC, which states:

11) On October 19, 2001 at the full TC [Tougaloo College] Board meeting EDC presented a motion to expand its ByLaws to include language that, if approved by the IRS, would allow it [Tou-galoo EDC] to issue tax exempt bonds for the development of excess land. After discussion, a motion was made to table the request.

This discussion was clearly about the tax exempt financing. There was no indication that the extension was discussed. Likewise, there is no evidence that Touga-loo College or Tougaloo EDC notified White Oak of what they claim in this litigation, that the extension granted by Touga-loo EDC’s Board would have no effect unless approved by Tougaloo College’s Board.

¶ 15. By letter dated October 23, 2001, Robert W. Jones, Chairman of Tougaloo EDC’s Board, advised Light that “on October 18, 2001, the Board of Directors of Tougaloo College Economic Development Corporation approved the extension of the above captioned option agreement with White Oak LLC to February 25, 2002.” Tougaloo College and Tougaloo EDC argue before this Court that the letter “did not indicate that Tougaloo [College’s] Board of Trustees had also agreed to such an extension.” The other side of that argument is that the letter clearly did not indicate that Tougaloo College’s Board opposed the extension.

¶ 16. According to Light, Tougaloo College and Tougaloo EDC thereafter undertook efforts to secure financing for the real estate project, with the assistance of White Oak and its bond counsel. Light testified that after the October 18th meeting, he had numerous conversations with Gibbs, as the attorney for both Tougaloo EDC and Tougaloo College, about the project financing. Light claims that he was never informed that Tougaloo EDC and Tougaloo College did not intend to pursue tax exempt financing or that there was any problem with the extension of the Option Agreement. Light also testified of his actions to further the project during October, November and December of 2001. Tougaloo EDC and Tougaloo College did not offer any evidence to rebut Light’s affidavit.

¶ 17. Tougaloo College and Tougaloo EDC claim that White Oak did not exercise the option prior to November 4, 2001, and the Option Agreement expired on that date.

¶ 18. On November 29, 2001, Gibbs sent a letter to Light. The letter was addressed to 9310 Huntcliff Trace, Atlanta, Georgia, and not the address listed under the notice section of the Option Agreement. Gibbs letter stated that “[a]s attorney for Tougaloo College, I have been asked to review the Option to Lease Agreement, the Lease Agreement, and your letter to determine whether the terms of the Option have been complied with.” Gibbs concluded that, since White Oak did not make the $50,000 payment, ‘White Oak has breached both the Option and Lease Agreement, and Tougaloo College will not execute another Lease Agreement.”

¶ 19. On January 24, 2002, White Oak sent a letter to Tougaloo College and Tou-galoo EDC requesting information as to the status of the financing and reiterating its desire to proceed with the project. There is nothing in the record to suggest that White Oak received any response.

¶ 20. On February 21, 2002, White Oak sent a letter to Tougaloo College’s President, Dr. James H. Wyehe, with a copy to Robert Jones, Chairman of Tougaloo EDC Board of Directors, and LeRoy Walker, Chairman of the Board of Trustees of Tou-galoo College. In the letter, White Oak exercised its option pursuant to the agreement and tendered a cashier’s check in the amount of fifty thousand dollars ($50,000).

¶ 21. By letter dated February 26, 2002, Gibbs sent a letter to Light and stated that Tougaloo College and Tougaloo EDC returned the funds and declared that White Oak had not complied with the terms of the agreement, and Tougaloo and Tougaloo EDC considered White Oak to be in breach of the agreement. This letter was also sent to Light at the Atlanta address and not to the address listed in the Option Agreement.

¶ 22. On May 1, 2003, White Oak commenced this action by filing its complaint before the Circuit Court of Madison County. White Oak asserted claims for breach of contract, tortious breach of contract, fraudulent misrepresentations and/or omissions, breach of implied covenants of good faith and fair dealing, and unjust enrichment. White Oak sought compensatory and punitive damages together with attorney’s fees, costs and interest. On August 23, 2004, the circuit court judge executed his final judgment and granted Tougaloo College’s and Tougaloo EDC’s motion for summary judgment. The final judgment contained no discussion of the facts or applicable law. From this judgment, White Oak appeals.

STANDARD OF REVIEW

¶ 23. Rule 56(e) of the Mississippi Rules of Civil Procedure provides that a summary judgment “shall be rendered forthwith 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.” We review the decision to grant a summary judgment on a de novo standard of review. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77 (¶ 9) (Miss.2002) (citations omitted). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. at 1177. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his or her favor. Id. Issues of fact sufficient to require reversal of a summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. Id.

ANALYSIS

¶ 24. In the motion for summary judgment, Tougaloo College and Tougaloo EDC argue that the Option Agreement expired on November 4, 2001, since White Oak did not exercise its option during the six month period. They also argue that no extension was granted. They argue that the Option Agreement required that any modification be in writing signed by both Tougaloo College and Tougaloo EDC. The Option Agreement falls under the statute of frauds, Mississippi Code Annotated Section 15-3-l(c) (Rev.2003), which requires that a lease be “signed by the party to be charged therewith ...” Tougaloo College and Tougaloo EDC argue that since there was no writing extension or modification signed by Tougaloo College, the Option Agreement was never extended.

¶ 25. Tougaloo College and Tougaloo EDC argue for the following interpretation of the Option Agreement. First, the Option Agreement specifically required that modifications be in writing. The Option Agreement provided:

7. Entire Agreement
This Agreement contains the entire Agreement between the parties relating to the Option granted in the Agreement. Any oral representations or modifications concerning the Option made by either party before or after the execution of this Agreement will have no force. This Agreement may be amended in the future by the written agreement of both parties.

(emphasis added.) Next, they assert that the language “both parties” means the “optionor” and “optionee.” However, they contend that “optionor” includes both Tou-galoo College and Tougaloo EDC. Thus, they claim that any written modification, such as an extension, was required to be executed by White Oak, Tougaloo College and Tougaloo EDC. They claim that this provision is not ambiguous, and it demonstrates the intent of the parties to limit the manner and procedure by which the Option Agreement could be modified.

¶ 26. Tougaloo College and Tougaloo EDC argue that Mississippi courts must construe contracts in accordance with their ordinary and plain meaning. Miss. Farm Bureau Cas. Ins. Co. v. Britt, 826 So.2d 1261, 1265 (Miss.2002). Hence, they argue that the plain meaning is that the extension required a written amendment signed by White Oak, Tougaloo College and Tou-galoo EDC.

¶ 27. The Option Agreement begins with the following:

OPTION TO LEASE
Preamble
This Agreement is made on this 4th day of May, 2001 at Jackson, Mississippi, between Tougaloo Economic Development Corporation, Tougaloo Board of Trustees (“Optionor”) and White Oak LLC (“Optionee”).
Recitals
Optionor is the owner of a tract of unimproved land comprising approximately 160 acres (the “Land”), located in Jackson, Mississippi,....
Optionee wishes to acquire the exclusive right and option to lease the Land at an agreed rental price and under specified terms.

The Option Agreement is signed by the “optionor” and the “optionee.” Under the heading for “Optionor” to sign, the very first signatory line is for Robert W. Jones, Chairman of Tougaloo EDC. Leroy Walker signed as Chairman of Tougaloo College and Joe A. Lee signed as President of Tougaloo College.

¶ 28. A plain reading of the Option Agreement leads us to one conclusion— there were two, not three, parties to the Option Agreement. Throughout the Option Agreement and the attached Lease Agreement, the terms “optionor” and “landlord” are used in the singular, not the plural. A plain reading of the Option Agreement indicates that the term “op-tionor” included both Tougaloo College and Tougaloo EDC. The language in paragraph 7, which allowed an amendment “by the written agreement of both parties,” refers to “optionor” and “optionee.” The question is whether Tougaloo EDC had the authority, either apparent or implied, to execute a document that bound the “op-tionor” (both Tougaloo College and Touga-loo EDC) under the terms of the Option Agreement.

¶ 29. By the language used in the Option Agreement to designate the parties, it appears that the plain meaning of the agreement supports the conclusion that Tougaloo EDC had the power and authority to act on behalf of Tougaloo College and extend the time- period of the Option Agreement. The brief of Tougaloo College and Tougaloo EDC further aids this conclusion. The brief states that Tougaloo EDC “was formed to provide recommendations to Tougaloo’s Board of Trustees regarding fund-raising and economic development activities.” They try to avoid this conclusion by arguing that there are three parties to the Option Agreement. However, the agreement itself clearly contradicts this statement.

¶ 30. The motion for summary judgment is based on the fact that both Touga-loo College and Tougaloo EDC did not agree to the extension in writing. They argue that since both did not sign a written modification to extend the Option Agreement, then the representations made by Tougaloo EDC that an extension was granted was of no effect whatsoever.

¶ 31. The evidence before this Court clearly establishes that Tougaloo EDC, through its board of directors, granted an extension. At Tougaloo EDC’s October 18, 2001, board meeting, the Board approved a motion to grant White Oak a four month extension. The minutes of the meeting clearly reflect that an extension was requested, a motion was made, and the motion passed. Hence, Tougaloo EDC’s board granted White Oak an extension through February 2002. Tougaloo EDC, as a corporation, speaks through its minutes. Am. Tel. & Tel. Co. v. Purcell Co., 606 So.2d 93, 97 (Miss.1990). The minutes reflect the best evidence of Tougaloo EDC’s actions. Id.

¶ 32. Five days later, Tougaloo EDC’s chairman sent a letter to White Oak that confirmed the extension. Jones’ letter said “on October 18, 2001, the Board of Directors of Tougaloo College Economic Development Corporation approved the extension of the above captioned option agreement with White Oak LLC to February 25, 2002.”

¶ 33. Tougaloo College’s contention that this was simply a vote to recommend an extension be approved is simply not supported by the best evidence available. As far as Tougaloo EDC is concerned, it is certainly bound by its actions that granted an extension to White Oak. The trial judge was clearly in error to grant a summary judgment as to Tougaloo EDC.

¶ 34. We move to whether Tougaloo College is bound by Tougaloo EDC’s action. The only evidence in the record of the October 19, 2001, Tougaloo College Board of Trustees’ meeting is the February 2002 report of Tougaloo EDC. The report discussed the question of extending the bylaws of Tougaloo EDC to allow it to issue tax exempt bonds. There is nothing that would indicate that the Tougaloo College Board even discussed the extension. Nevertheless, there are facts in the record that indicate that the action of the Touga-loo EDC board, which granted an extension, were known by the Tougaloo College Board because the two boards have a significant number of members who overlap and serve on both. Thus, with knowledge that Tougaloo EDC’s Board had granted the extension, Tougaloo College’s Board did nothing and was silent.

¶ 35. Tougaloo College contends that this silence was a rejection of Tougaloo EDC’s board’s action. The standard of review requires that we view the evidence in the light most favorable White Oak. McMillan, 823 So.2d at 1173 (¶ 9).

¶ 36. Tougaloo EDC approved the extension. With thirteen members of the Tougaloo College Board of Trustees being present at the October 18th Tougaloo EDC board meeting, there is clearly sufficient facts to establish a genuine issue of material fact in dispute that Tougaloo College either agreed with or tacitly approved the extension.

¶ 37. Further, Tougaloo College and Tougaloo EDC are not un-related third party corporations dealing at arms length. They have a number of overlapping board members. As we previously discussed, the argument offered by Tougaloo College and Tougaloo EDC that any modification required the signature of Tougaloo College and Tougaloo EDC is neither logical nor within the plain meaning of the contractual provisions of the Option Agreement. Neither Tougaloo College, Tougaloo EDC, nor the dissent refer us to a contractual provision or legal authority that would support their interpretation.

¶ 38. The Option Agreement and the proposed Lease Agreement refer to two, not three, parties. The Option Agreement refers to the “optionor” and the “op-tionee.” The Lease Agreement refers to the “landlord” and the “tenant.” In both documents, the “optionor” and the “landlord” are identified as Tougaloo College and Tougaloo EDC. Further, in both documents, the division of rights, duties and obligations are divided between two parties, either the “optionor” or “landlord” on the one hand or the “optionee” or “tenant” on the other. Nevertheless, the dissent concludes that there were three entities as parties and that Tougaloo College and Tougaloo EDC were separate and distinct contracting parties. Yet, the dissent does not, and perhaps because it cannot, point us to any provision where the parties used the plural, e.g. “optionors” or “landlords”, instead of the singular, e.g. “optionor” or “landlord.” The Option Agreement certainly does not differentiate the rights, duties and responsibilities of Tougaloo College as opposed to Tougaloo EDC. Even the notice provision, cited by the dissent, states that “either party may change the address to which notices are to be sent by giving the other party written notice.... ” Somehow, the dissent reads that to require notice given to both Tougaloo College and Tougaloo EDC. Instead, “the other party” refers to “optionor” or “optionee”. Our conclusion is not that Tougaloo EDC was the agent of Tougaloo College. Instead, we find that there are genuine issues of material fact in dispute on this issue and that summary judgment is not proper.

¶ 39. Accordingly, we find that there exists a genuine issue of a material fact in dispute as to whether Tougaloo EDC was an agent of Tougaloo College and neither are entitled to a judgment as a matter of law. Therefore, the judgment of the Circuit Court of Madison County is reversed and remanded for further proceedings consistent with this opinion.

¶ 40. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

MYERS, P.J., SOUTHWICK, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. KING, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, P.J., AND IRVING, J.

KING, C.J.,

Dissenting:

¶ 41. With appropriate respect for the majority, I dissent.

¶ 42. The majority reverses the trial court’s grant of summary judgment in this case. In order to do so, the majority holds that there exists a genuine issue of material fact in dispute as to whether the Touga-loo Economic Development Corporation was the agent of Tougaloo College. Intent of the parties is the controlling factor in determining whether an agency relationship exists. Aladdin Const. Co., v. John Hancock Life Ins. Co., 914 So.2d 169, 176-77 (¶ 14) (Miss.2005). The burden of proving the existence of an agency relationship falls on the party asserting its existence. McFarland v. Entergy Mississippi Inc., 919 So.2d 894, 902 (¶ 25) (Miss.2005) (quoting Highlands Ins. Co. v. McLaughlin, 387 So.2d 118, 120 (Miss.1980)). While this matter is disputed, there is nothing in the record to suggest that this dispute is a genuine dispute. The trial court agreed that this issue was disputed, but noted that there were no actions taken by Tougaloo to induce White Oak LLC to believe that the Tougaloo Economic Development Corporation was authorized to act as the agent of and bind Tougaloo College.

¶ 43. Even when an agency relationship exists, the agent must be authorized to bind the principal to a contract with a third party. Bailey v. Worton, 752 So.2d 470, 475 (¶ 13) (Miss.Ct.App.1999) (citing Gulfport & Mississippi Coast Traction Co. v. Faulk, 118 Miss. 894, 901, 80 So. 340, 341 (1919)). An agent may have actual or apparent authority. Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172, 1180 (Miss.1990).

To recover under the theory of apparent authority, a three-prong test must be met. Specifically, recovery requires a sufficient showing of: (1) acts or conduct on the part of the principal indicating the agent’s authority, (2) reasonable reliance on those acts, and (3) a detrimental change in position as a result of such reliance.

Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172, 1181 (Miss.1990). The trial court noted that any claim by White Oak LLC that it was led to believe that the Tougaloo Economic Development Corporation had spoken for itself and Tougaloo College must be founded on some reasonable basis before Tougaloo College could be held liable for the actions of the Touga-loo Economic Development Corporation. The trial court indicated that there existed no such reasonable basis, and therefore there existed no genuine dispute as to material fact. The trial court essentially found that White Oak failed the first two prongs of the test for apparent authority.

¶ 44. There is no question that White Oak was aware that it was dealing with two separate and distinct entities, the Tou-galoo Economic Development Corporation and Tougaloo College. This fact is shown on the face of the cover sheet for the option, which reads:

OPTION AGREEMENT
BY AND BETWEEN
TOUGALOO ECONOMIC DEVELOPMENT CORPORATION & TOUGALOO COLLEGE
AND
WHITE OAK LLC

¶ 45. The preamble to the Option notes the same three entities as parties, and the Option required a signature on behalf of both the Tougaloo Economic Development Corporation and Tougaloo College.

¶ 46. Section 6 of the Option, which addresses notices to the parties also recognizes and treats the Tougaloo Economic Development Corporation and Tougaloo College as two separate and distinct entities. It mandates that all notices to the Optionor be sent to both Tougaloo Economic Development Corporation and Tou-galoo College. It reads: “Notices required to be given to either party should be given personally or by registered or certified mail, postage prepaid, addressed to the party at its address as stated below, and if given by mail, will be considered delivered as of the date of the postmark. Either party may change the address to which notices are to be sent by giving the other party written notice as provided in this paragraph.”

To Optionor Tougaloo Economic Development Corporation

C/O Robert W. Jones, Chairman

Tougaloo, Mississippi 39174

Tougaloo College

C/O Leroy Walker, Chairman

Tougaloo, Mississippi 39174

¶47. The majority suggests that The Tougaloo Economic Development Corporation and Tougaloo College are in reality one party under the contract. I do not find that to be an appropriate reading of the contract. While the two have similar interests, there is clearly a distinct difference in their respective rights and responsibilities. This reading of the contract is consistent with section 6, which mandated that required notices to the Optioner must be given to both the Tougaloo Economic Development Corporation, and Tougaloo College. A basic principle in agency law is that an agent’s knowledge is generally imputed to its principal. Lane v. Oustalet, 873 So.2d 92, 95 (¶ 15) (Miss.2004) (citing Pittman v. Home Indem. Co., 411 So.2d 87, 89 (Miss.1982)). If the Tougaloo Economic Development Corporation were truly the agent of Tougaloo College, it would be unnecessary for section 6 to require that notice be given to Tougaloo College.

¶ 48. The majority seems to argue that Tougaloo College is chargeable with notice of the actions of the Tougaloo Economic Development Corporation, and had an affirmative obligation to White Oak LLC to disavow any actions taken by the Tougaloo Economic Development Corporation, which exceeded its authority. However, the majority fails to demonstrate the legal foundation for those inferences. A principal may ratify the unauthorized acts of its agent, thereby adopting the acts as his own. Autry v. State, 698 So.2d 84, 87 (¶ 10) (Miss.1997) “Ratification is the affir-mance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him.” Id. (quoting Carter v. Hurst, 234 So.2d 616, 620 (Miss.1970)). Even had an agency relationship existed, Tougaloo College clearly did not ratify Tougaloo Economic Development Corporation’s actions, as evidence by the letter Tougaloo College’s attorney sent White Oak on November 29, 2001, notifying White Oak that it had breached the contract by failing to make the $50,000 payment.

¶ 49. The majority does state that the Tougaloo Economic Development Corporation and Tougaloo College have a number of overlapping board members. One presumes that the unspoken inference is that this overlap creates a single identity. Without more, that is not the law. “Basic law of corporations holds that the distinct corporate identity will be maintained unless to do so would subvert the ends of justice” Castillo v. M.E.K Const., Inc., 741 So.2d 332, 340 (¶22) (Miss.Ct.App.1999) (quoting Johnson and Higgins of Mississippi, Inc. v. Commissioner of Ins. of Miss., 321 So.2d 281, 284 (Miss.1975)). Corporations maintain their separate and distinct identities even when two corporations share the same officers. Id.

¶ 50. The record before this Court lacks any evidence of intent to establish a unity of identity between the Tougaloo Economic Development Corporation and Tougaloo College, nor does it contain any evidence to suggest that White Oak was entitled to reasonably rely upon the actions of the Tougaloo Economic Development Corporation to bind Tougaloo College.

¶ 51. In its quest to find a genuine material dispute of fact, the majority places great weight on the failure of the written documents to use the plural terms optioners or landlords. In doing so, it conveniently forgets the notice provision of the lease does not provide that notice to the Optioner may be given to either Tou-galoo College or the Tougaloo Economic Development Corporation. Instead, it provides for notice to the Optioner as follows:

Tougaloo Economic Development Corporation
C/O Robert W. Jones, Chairman
Tougaloo, Mississippi 39174
Tougaloo College
C/O Leroy Walker, Chairman
Tougaloo, Mississippi 39174

¶ 52. No reasonable reading of this language indicate anything other than that notice to the Optioner must be sent to both Tougaloo Economic Development Corporation and Tougaloo College.

¶ 53. No matter how the majority seeks to ignore the fact, the Tougaloo Economic Development Corporation is a separate and distinct legal entity from Tougaloo College. That fact is not changed by the majority’s attempted sleight of hand with language.

¶ 54. In nothing contained in the record is it stated, inferred or suggested that the Tougaloo Economic Development Corporation had any ownership of the real property which is the subject of this action. If there is no actual ownership of the subject real property by the Tougaloo Economic Development Corporation, it would have to find authority from some other source to extend the option. The majority conveniently fails to identify any source of authority which would allow this separate and distinct legal entity to affect property owned by yet another separate and distinct legal entity. Instead, the majority simply says that the two separate and distinct entities had some shared members. Perhaps that failure is because to do so, the majority would have to deal with the reasonableness of White Oak’s claim in something more than a peripheral manner.

¶ 55. In the absence of an ownership interest or some other right or authority, the Tougaloo Economic Development Corporation could not, acting by itself, extend the option. There is no suggestion of any ownership interest in the real property by the Tougaloo Economic Development Corporation. Nor does the record contain any specific identification of any right or authority of the Tougaloo Economic Development Corporation to singularly authorize an option extension.

¶ 56. Because of this, I would affirm the grant of summary judgment.

LEE, P.J. AND IRVING, J., JOIN THIS OPINION.


source: Caselaw Access Project

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

license: Public Domain

text:
    Sandra Kaye TAYLOR, Appellant v. Earl KENNEDY, Appellee.
    No. 2005-CP-00325-COA.
    Court of Appeals of Mississippi.
    April 18, 2006.

      Sandra Kaye Taylor, Appellant, pro se.
    Earl Kennedy, Appellee, pro se.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J., for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. In Pearl River County Justice Court, Earl Kennedy brought an action for damages against Sandra Taylor. From the sparse record before the Court, it is apparent that Kennedy loaned Taylor money, which she never repaid. At the hearing on May 20, 2004, the justice court judge entered a judgment for Kennedy in the amount of $2,500 plus $54 in fees. At some point, Taylor appealed this judgment to the Pearl River County Circuit Court. However, at the hearing on the matter on October 4, 2004, Taylor failed to appear and, after calling Taylor three times, the trial court dismissed the appeal with prejudice and reinstated the order of the justice court.

¶ 2. On October 29, 2004, Taylor filed a motion for a new trial or, in the alternative, for relief from the judgment. After reviewing Taylor’s motion, the trial court denied the motion finding that the court lost jurisdiction of the matter upon dismissal of Taylor’s appeal. Taylor now appeals to this Court; however, from her brief, it is unclear as to the exact nature of her legal argument on appeal.

DISCUSSION

¶ 3. We first note that Kennedy has failed to file a brief with this Court; therefore, we have two options before us. The first is to take Kennedy’s failure to file a brief as a confession of error and reverse, which should be done when the record is complicated or of large volume and “the case has been thoroughly briefed by [the] appellant with a clear statement of the facts, and with apt and applicable citation of authorities, so that the brief makes out an apparent case of error[.]” May v. May, 297 So.2d 912, 913 (Miss.1974). The second is to disregard Kennedy’s error and affirm, which should be done when the record can be conveniently examined and such examination reveals a “sound and unmistakable basis or ground upon which the judgment may be safely affirmed[.]” Id. In this instance, we follow the latter course.

¶4. We also note that Taylor fails to cite any legal authority in her brief. It is well-settled that failure to provide authority is a procedural bar and places no obligation on this Court to consider the issue on appeal. Grey v. Grey, 638 So.2d 488, 491 (Miss.1994). Notwithstanding our procedural bar, Taylor’s brief is incoherent and fails to delineate any reversible error.

¶ 5. This Court recently addressed a similar situation concerning Kennedy and Taylor, wherein Taylor appealed the trial court’s ruling and filed a brief consistent with the one in the case sub judice. See Taylor v. Kennedy, 914 So.2d 1260 (Miss. Ct.App.2005). As in the prior case, we cannot discern her argument and, therefore, must affirm.

¶ 6. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Jeff YATES, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KM-00573-COA.
    Court of Appeals of Mississippi.
    April 18, 2006.

      Jeff Yates, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J., for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. In March 2002, Jeff Yates assaulted his estranged girlfriend, Jennifer Guthrie. Guthrie filed charges and, after a trial in the Jones County Justice Court, Yates was found guilty of simple assault. Yates was sentenced to six months in jail, with ninety days suspended and ninety days to serve. Although it is unclear from the record, Yates was apparently on parole at the time of the assault from a murder conviction which the supreme court affirmed in Yates v. State, 467 So.2d 884 (Miss.1984). After the assault charge was filed, Yates’s parole was revoked and he was placed in the custody of the Mississippi Department of Corrections.

¶ 2. Yates appealed his simple assault conviction to the County Court of Jones County. However, Yates failed to appear at the hearing and his appeal was dismissed on June 10, 2002. Yates filed a motion to reconsider, which was ultimately denied. Yates then appealed to the Jones County Circuit Court. After reviewing the record, the trial court found, on March 10, 2004, that the decision of the lower court should be affirmed. Yates again filed a motion for reconsideration of the court’s decision, but it was denied on April 13, 2004.

¶ 3. Aggrieved, Yates appealed to this Court asserting the following issues: (1) his due process and equal protection rights were violated; (2) he received ineffective assistance of counsel; (3) the prosecutor engaged in misconduct; and (4) certain evidence was inadmissible.

DISCUSSION

¶ 4. Yates’s appeal is governed by Mississippi Code Annotated Section 11-51-81 (Rev.2002), which states, in pertinent part, the following:

[Tjhere shall be no appeal from the circuit court to the supreme court of any case civil or criminal which originated in a justice of the peace, municipal or police court and was thence appealed to the county court and thence to the circuit court unless in the determination of the case a constitutional question be necessarily involved and then only upon the allowance of the appeal by the circuit judge or by a judge of the supreme court.

See also Sumrall v. City of Jackson, 576 So.2d 1259 (Miss.1991). Upon review of the record, Yates has not followed the dictates of Section 11-51-81. There is no order by the circuit judge or a justice of the supreme court allowing Yates to appeal. The record does contain an order by the circuit court granting Yates in forma pauperis status for appeal; however, we do not consider that the functional equivalent of an order specifically allowing Yates to appeal. It is clear that the constitutional question should be raised in the request to appeal, thereby allowing the judge to determine whether the constitutional question is “necessarily involved” and merits an appeal. See Sumrall, 576 So.2d at 1261; Keeton v. State, 197 Miss. 11, 19 So.2d 477 (1944); Williams v. State, 160 Miss. 489, 135 So. 199 (1931); see also Davis v. City of Biloxi, 797 So.2d 1036, 1036(¶4) (Miss. Ct.App.2001) (“necessary formal allowance” by judge not accompanied by appeal rendered appeal defective).

¶ 5. As Yates has failed to necessarily comply with both requirements of Section 11-51-81, his appeal is proeedurally barred. The proper course for this Court is to dismiss Yates’s appeal. Sumrall, 576 So.2d at 1261-62.

¶ 6. THE APPEAL IS HEREBY DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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


author: IRVING, J., for the Court.

text:
    Derek GRAY, Appellant, v. STATE of Mississippi, Appellee. Derek Gray, Appellant, v. State of Mississippi, Appellee.
    Nos. 2004-KA-01915-COA, 2004-M-00213-COA.
    Court of Appeals of Mississippi.
    April 25, 2006.

      Minor F. Buchanan, Jackson, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK, IRVING and BARNES, JJ.
   IRVING, J., for the Court.

¶ 1. Derek Gray was convicted by a Hinds County jury of possession of more than thirty grams of cocaine. Because he had two prior felony convictions and qualified as an habitual offender, Gray was sentenced by the Hinds County Circuit Court to life imprisonment in the custody of the Mississippi Department of Corrections. Gray appeals his conviction and raises the following contentions, which we list verbatim:

1. THE JURY VERDICT WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.
2. THE LOWER COURT ERRED IN NOT GRANTING THE MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF THE STATE’S CASE, AT THE CONCLUSION OF THE TRIAL, A PEREMPTORY INSTRUCTION, AND FOR NOT GRANTING THE MOTION FOR A NEW TRIAL OR JUDGMENT NOTWITHSTANDING THE VERDICT ON THE MERITS AND AFTER NEW EVIDENCE WAS FOUND.
3. THE LOWER COURT ERRED IN DENYING THE DEFENDANT’S SUCCESSIVE MOTIONS FOR DISCOVERY TO BE PROVIDED WITH CRITICAL TRIAL TESTIMONY OF ROBERT SHEGOG AND RICHARD MCGAHEY WITH THE JACKSON POLICE DEPARTMENT.
4. THE LOWER COURT ERRED IN OVERRULING THE DEFENDANT’S OBJECTIONS, DENYING THE DEFENDANT’S MOTIONS FOR DISMISSAL, AND DENYING A CONTINUANCE AS A RESULT OF THE STATE’S DISCOVERY VIOLATIONS AT THE BEGINNING OF TRIAL.
5. THE LOWER COURT ERRED IN ALLOWING PORTIONS OF THE TESTIMONY OF ROBERT SHEGOG AND THE ENTIRE TESTIMONY OF RICHARD MCGAHEY FOR DISCOVERY VIOLATIONS, THE PROSECUTION HAVING NOT PROVIDED NOTICE OF SAID TESTIMONY AS REQUIRED BY RULE 9.04 OF THE UNIFORM RULES OF CIRCUIT AND COUNTY COURT PRACTICE.
6. THE LOWER COURT ERRED IN DENYING THE DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO PROVIDE A SPEEDY TRIAL.
7. THE LOWER COURT ERRED IN ALLOWING THE STATE TO AMEND THE INDICTMENT TWICE.
8. THE LOWER COURT ERRED IN FINDING PROBABLE CAUSE BASED ON AN UNDISCLOSED CONFIDENTIAL INFORMANT.
9. THE LOWER COURT ERRED IN DENYING THE DEFENSE MOTIONS TO SUPPRESS AND THEREBY ADMITTING AS EVIDENCE STATEMENTS OF THE DEFENDANT AND DRUG EVIDENCE TAKEN FROM THE SCENE.
10. THE LOWER COURT ERRED IN DENYING THE DEFENSE MOTION IN LIMINE REGARDING A PRIOR MANSLAUGHTER CONVICTION OF THE DEFENDANT HAVING THE EFFECT OF DENYING HIM THE OPPORTUNITY TO TESTIFY IN HIS OWN BEHALF.
11. THE LOWER COURT ERRED IN DENYING THE DEFENSE ITS POST-TRIAL MOTION FOR FUNDS TO RETAIN A HANDWRITING EXAMINER TO AUTHENTICATE NEWLY DISCOVERED EVIDENCE.
12. THE LOWER COURT ERRED IN ITS GRANTING AND REFUSING OF SPECIFIC JURY INSTRUCTIONS.
13. THE SENTENCE OF THE LOWER COURT IS UNCONSTITUTIONALLY CRUEL AND UNUSUAL.
14. THE VERDICT OF THE JURY SHOULD BE SET ASIDE AS THE APPELLANT WAS DENIED A FAIR TRAIL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

Finding no error, we affirm.

FACTS

¶ 2. On April 25, 2001, a search warrant was executed at 813 Grandberry Street in Jackson by the Jackson Police Department. When the police arrived, two individuals, Gray and a woman, were standing in the yard of the house. Six more individuals were discovered inside the house. Four rocks of cocaine were found outside the house, on the ground near where Gray and the woman had been standing, and significantly more cocaine was found inside the house. In total, over thirty grams of cocaine were recovered from the property. All the individuals at the location were charged with possession of the entire amount of the cocaine.

¶ 3. On April 25, the day the search warrant was executed, Gray gave a statement to police waiving his Miranda rights and disavowing ownership of any of the cocaine. During this statement, Gray stated that he resided at 813 Grandberry Street. When asked specifically, “How many people were located inside of your house,” Gray responded, “A lot of them.” Additionally, an Entergy bill in Gray’s name and addressed to 813 Grandberry Street was found at the scene. In short, it is undisputed that 813 Grandberry Street, a one-bedroom house, was Gray’s residence.

¶ 4. On May 9, 2001, Gray contacted the lead detective on the case, Robert Shegog, and gave another statement. The substance of this statement was essentially that Gray knew about the cocaine in the house, but that it was not his. Instead, Gray explained that “they [the individuals in the house] will give me something to smoke and I will go on by my way while they gambling and celling [sic] dope.... They told me if any dope be in the house that they goneing [sic] to hold up for it....” Gray indicated that he was aware that drugs were being sold at the house, and that he had witnessed drugs being sold at the house. Along with a Miranda waiver, the statement also contained a separate waiver signed by Gray that indicated that “[n]o promises or threats have been made to me and no pressure or coercion of any kind has been used against me.”

¶ 5. After a jury trial, Gray was convicted and sentenced to life. Shortly after trial, Gray produced a “newly discovered” document. The document, which appeared to be a Miranda waiver form, was allegedly signed by both Gray and Shegog. At the bottom, Gray had written:

On 4-25-01 I gave this statement to Det. Robert Shegog because he has released me from this charge that happen [sic] on 4-25-01 at 813 Grandberry St. Jackson, Ms. Det. Robert has asked me to write down what I think might had happen and to agree to what he puts on his report ... [illegible] ... Det. Robert Shegog has not put the charge of possession of cocaine on [cut off] at all and I am free from this charge of poss. of cocaine on 4-25-01 at 813 Grandberry [cut off] this is a insurance of our agreement that I was and am INNOCENT. I [cut off] know nothing about any drugs at all. The END.

This paragraph was written below the signatures on the paper. At a posttrial hearing, Shegog denied having signed the document or ever having seen it before. Shegog also testified that the form was similar, but not the same, as a form used by the Jackson Police Department. The right side of the paper, where a case number would generally be located, was inexplicably ripped off.

¶ 6. Gray maintained that he had not been able to locate the paper before trial, but was able to find it by making a few phone calls from jail after he was convicted. Gray was unable to give the full names of any of the people who had worked to get the document to him. When the document was presented to the court, it was apparently severely damaged, both by tears in the paper and blotches of ink. When questioned, Gray could provide no explanation for the condition of the document. Gray’s attorneys requested that the court order that a forensic handwriting expert look at the document to determine whether Shegog’s signature was authentic. The court declined, ruling that there was nothing credible about the document to warrant providing funds for a forensic handwriting expert.

¶ 7. The court denied all the posttrial motions filed by Gray. The Hinds County Public Defender’s Office, which had handled Gray’s trial representation, does not represent him on appeal. Instead, Gray is represented by Minor F. Buchanan on appeal. Additional facts will be given as necessary in the remainder of this opinion.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Weight of the Evidence

¶ 8. When making this review, we will reverse only if Gray’s conviction is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Dilworth v. State, 909 So.2d 731, 737(¶ 21) (Miss.2005) (quoting Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005)). We will weigh the evidence “in the light most favorable to the verdict.” Bush, 895 So.2d at 844(¶ 18). In order for us to reverse, the trial court must have “abused its discretion in denying a motion for new trial.” Dilworth, 909 So.2d at 737(¶ 20). “Only in ‘exceptional cases in which the evidence preponderates heavily against the verdict’ should the trial court invade the province of the jury and grant a new trial.” Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)).

¶ 9. Gray contends: “Considering the quality of the evidence and the improper tactics of the prosecution — which clearly swayed the jury — it is clear that this verdict should be considered against the overwhelming weight of the evidence.” Gray specifically argues that “when the co-defendants are clearly identified as they were in this case as the owners and possessors of the contraband in question and for which they were individually prosecuted, the presumption that any of those items were possessed by the appellant has been substantially overcome.”

¶ 10. We find that the verdict in this case was not against the overwhelming weight of the evidence. Gray focuses on the fact that Shegog gave conflicting testimony the day before trial began when he testified that he had never taken a statement from Gray prior to the May 9 statement. Gray’s attorneys questioned She-gog extensively about this during their cross-examination of him during trial, and attempted to convince the jury that She-gog’s testimony was not credible as a result. Shegog explained that his misstatement was a mistake caused by the large amount of evidence that had been collected in the case and the lengthy time period between the arrest and trial.

¶ 11. We note first that Gray’s attorneys cross-examined Shegog in the presence of the jury regarding his incorrect statement. We also note that “[the Mississippi Supreme Court] [has] routinely held that the jury is the judge of the credibility of a witness.... Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury.” Price v. State, 898 So.2d 641, 652(¶ 25) (Miss.2005) (citations omitted). Once Gray’s attorneys had brought out the inconsistency in Shegog’s sworn testimony, it was up to the jury to determine whether Shegog was credible. Additionally, the statement that Shegog initially denied the existence of was not any more exculpatory than Gray’s May 9 statement to the police. The April 25 statement was brief, stating little more than that Gray lived at the house and claimed that he did not own the drugs that had been found inside. The only real distinction in the May 9 statement was that Gray provided the names of the individuals in the house (which the police officers had already learned when they arrested everyone in the house) and stated that he was aware that drugs were being sold from the house. Gray still denied in the May 9 statement that he owned the drugs himself. Therefore, we see nothing in Shegog’s testimony that requires reversal of Gray’s conviction.

¶ 12. Additionally, there was ample evidence of Gray’s guilt beyond She-gog’s testimony. Gray himself admitted in his statements to the police that he (1) resided in the house at 818 Grandberry Street, (2) agreed to let the house be used in exchange for money and drugs, and (3) was aware that illegal drugs were being sold from the house. As already discussed, the evidence was undisputed that Gray was in possession of the one-bedroom house at 813 Grandberry Street in Jackson. As pointed out by Gray, “[a] presumption of constructive possession arises against the owner of premises upon which contraband is found.” Smith v. State, 839 So.2d 489, 497(¶ 21) (Miss.2003) (citing Hamm v. State, 735 So.2d 1025, 1029(¶ 13) (Miss.1999); Hamburg v. State, 248 So.2d 430, 432 (Miss.1971)).

¶ 13. Gray recognizes the presumption that arises against him as the sole occupying resident of the house, but argues that the presumption was overcome. We disagree. The presumption is rebutted when there are no “additional incriminating facts” connecting the defendant to the contraband. Powell v. State, 355 So.2d 1378, 1379 (Miss.1978). Here, there is an additional incriminating fact in the form of Gray’s statement that he was in possession of the house and was fully aware that cocaine was being sold in the house. We find that Gray’s proven awareness of the drugs and acceptance of drugs and money in return for allowing the others to use his home as a crack house were sufficient to show that he “exercised control” over the cocaine. See Hamm, 735 So.2d at 1029(¶ 13). We also note that the State’s version of events was uncontradicted, since Gray did not take the stand in his own defense or present any other evidence to rebut the State’s evidence.

¶ 14. Given the extensive evidence provided by the State and the lack of contradicting evidence provided by Gray, the verdict was not against the overwhelming weight of the evidence, no unconscionable injustice occurred, and the court did not abuse its discretion in failing to grant Gray a new trial.

2. Sufficiency of the Evidence

¶ 15. When reviewing the sufficiency of evidence in a case, we examine “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.” Dilworth v. State, 909 So.2d 731, 736(¶ 17) (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We will reverse only if we find that the court abused its discretion in upholding the jury’s determination. Id. (citing Howell v. State, 860 So.2d 704, 764 (¶ 212) (Miss.2003)).

¶ 16. Gray argues that the testimony of Shegog and other prosecution witnesses was “discredited,” and, at the most, “it [the question of Gray’s guilt] should have gone to the jury only on those small quantity of drugs found in the vicinity of where the appellant had been standing.” As to She-gog’s testimony, as we have already noted, it is the responsibility of the jury to determine the credibility of a witness. Gray’s conviction indicates that the jury believed Shegog’s explanation of Shegog’s misstatement on the stand.

¶ 17. As support, Gray cites Henley v. State, 729 So.2d 232, 238(¶ 25) (Miss.1998), where the Mississippi Supreme Court reversed a conviction, holding that a defendant could not be convicted of grand larceny absent evidence regarding the value of the truck stolen. Although Gray characterizes the holding of the case as that there was no “credible evidence” of the truck’s value, we note that the court’s holding was that there was “no proof’ as to the value of the truck. Id. We find Henley is distinguishable from the present case because no evidence whatsoever was presented in Henley; here, Gray is simply challenging the credibility of the evidence presented.

¶ 18. Gray also cites Alford v. State, 656 So.2d 1186, 1190-91 (Miss.1995), where the Mississippi Supreme Court reversed a conviction because it found that the prosecution had failed to prove that the defendant possessed the requisite intent to commit burglary. As in Henley, however, the court stated: “In the case at bar there is no showing of evidence of intent on Alford’s part to commit a crime.” Id. at 1190 (emphasis added). The circumstances are notably different in the present case.

¶ 19. In Clemons v. State, 473 So.2d 943, 944-45 (Miss.1985), which Gray also cites, the Mississippi Supreme Court reversed a murder conviction after finding: “This Court has difficulty understanding how the jury was able to extrapolate enough competent facts from the many versions of the story to sufficiently support the finding of murder. From the record there is more than enough conflicting evidence to cast at least a reasonable doubt, as to murder.” Id. at 945. We note that, although Gray’s attorneys did question the credibility of Detective She-gog’s testimony, most of the State’s evidence remained entirely uncontradicted. In fact, as we have already noted, since Gray did not take the stand himself, only the State’s evidence was presented to the jury. Thus, we find that Clemons is also distinguishable because it was the “conflicting evidence” that led the Clemons court to reverse, but there is little conflicting evidence in the present case.

¶ 20. Finally, Gray cites Biles v. State, 338 So.2d 1004, 1004 (Miss.1976), where a defendant’s capital murder conviction was reversed because the evidence “was sufficient to support a conviction for murder but was not sufficient to support a conviction for capital murder because the proof did not show beyond a reasonable doubt that the defendant murdered Henry Muller while engaged in the commission of the crime of kidnapping.” Id. (citing Miss. Code Ann. § 97-3-19(2)(e) (Supp.1975)). The Biles court gave little explanation other than that the evidence was insufficient to sustain the capital murder conviction.

¶ 21. In the present case, we find that there was sufficient evidence from which a reasonable jury could convict Gray. Although Gray’s attorneys attempted to discredit Shegog’s testimony, a reasonable jury certainly could believe his explanation of why he forgot Gray’s first statement during his pretrial testimony. Even if the jury had discredited Shegog’s testimony, there was sufficient additional evidence from which the jury could convict Gray. A statement was presented wherein Gray indicated that he possessed the house where the drugs were found, and an Entergy bill addressed to Gray corroborated this statement. In an additional statement, Gray disclosed that he was fully aware of the cocaine that was being dealt from the house, and that he was allowing the drugs to be sold in his house in return for money and drugs. In short, there was more than sufficient evidence from which a reasonable jury could find Gray guilty of possession. Therefore, the court did not abuse its discretion in refusing to overturn the jury’s decision.

3. Discovery, Continuance, and Testimony

¶ 22. Under this issue, Gray alleges that the court erred in allowing the testimony of Shegog “when officer Shegog presented testimony previously not disclosed” because the testimony “effectively denied [Gray’s] right to confront.” Gray also complains that Richard McGahey, another officer with the Jackson Police Department, presented testimony that had not been disclosed to the defense before trial. Gray refers to the testimony Shegog gave that he saw Gray throw something down to the ground as the police drove up to the house. Although it is not entirely clear, we assume that Gray objects to McGahey’s report, which was not given to the defense until shortly before trial, rather than any testimony offered by McGahey during trial. Gray also objects to the prosecution’s disclosure of Gray’s April 25 statement at the “eleventh hour.”

¶ 23. As support, Gray cites Rule 9.04 of the Uniform Rules of Circuit and County Court, which states in part that the prosecution in a criminal case must disclose: “Names and addresses of all witnesses in chief ... together with a copy of the contents of any statement, written, recorded or otherwise preserved of each such witness” as well as “[a]ny exculpatory material concerning the defendant.” The rule also states:

If at any time prior to trial it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances.

URCCC 9.04(1.) (emphasis added). The rule then goes on to state:

If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.

Id. at 9.04(I.)(2.). Gray contends that this rule requires a reversal of his conviction.

¶ 24. The State responds that the portion of the record cited by Gray concerned only a possible discovery violation due to Shegog’s failure to recognize the April 25 statement in his testimony. The hearing contained no information regarding testimony that Gray was seen throwing anything to the ground as the officers drove up. As the State points out, when Shegog actually testified at trial that he saw Gray drop something as the officers drove up, a fact that Shegog had failed to include in any of his reports, there was no objection whatsoever from the defense. There was also no objection made when McGahey testified that cocaine was discovered on the ground where Gray had been standing. The State also argues that any testimony by Shegog or McGahey that Gray threw something or was standing on top of cocaine could not constitute surprise or prejudice to Gray, since one of the defense’s pretrial requests was as to whether another detective would testify that he had seen Gray throw something to the ground as the officers approached.

¶ 25. The State would basically have us hold that Gray’s appeal brief alleges only that reversal is required because of the testimony of Shegog and McGahey; according to the State: “The alleged discovery violation that was asserted in the trial court is not here for review because the Appellant has not asserted it here.” We believe that the State too narrowly construes Gray’s appeal. We agree that Gray’s contention concerning Shegog’s testimony that he saw Gray throw something to the ground is procedurally barred because there was no objection whatsoever to the testimony at trial. Willis v. State, 911 So.2d 947, 950(¶ 12) (Miss.2005). However, after having reviewed Gray’s brief, we find that he does assert as an issue the discovery violation that was raised at trial. Gray is explicit in his brief that he is objecting to not only the testimony of Detective Shegog, but also McGahey’s report that was given to the defense only on the morning of trial. However, “[the Mississippi Supreme Court has] ruled that a violation of Rule 9.04 is considered harmless error unless it affirmatively appears from the entire record that the violation caused a miscarriage of justice.” Wyatt v. City of Pearl, 876 So.2d 281, 284(¶ 10) (Miss.2004) (citing Payton v. State, 897 So.2d 921, 942(¶ 67) (Miss.2003)). Even in cases where it has been found that there was a clear discovery violation, the violation has been held to be harmless error where there was no prejudice suffered by the defendant. Jones v. State, 669 So.2d 1383, 1392 (Miss.1995).

¶26. In the present case, it is clear that no prejudice was suffered by Gray. Although McGahey’s report was not included in the record, when the late disclosure of the report was discussed with the court, Gray’s attorneys could make no argument for why the late disclosure had caused any prejudice to Gray. In fact, it was his attorneys’ inability to show prejudice that led the trial court to refuse to grant a continuance or a mistrial. Since no prejudice occurred, the prosecution’s violation of Rule 9.04 and the court’s refusal to grant a continuance are harmless error at most, and do not require reversal.

¶ 27. For the same reason, we do not find that the late disclosure of Gray’s April 25 statement constitutes reversible error. The statement contained no new information that was not in the previously-disclosed May 9 statement. As with McGa-hey’s report, Gray’s attorneys were unable to show that the late disclosure of the April 25 statement had caused any prejudice to Gray. Therefore, although the late disclosure of the report constituted a technical violation of Rule 9.04, no prejudice arose to Gray, and, consequently, no reversible error occurred.

3. Speedy Trial

¶ 28. Gray contends that the court erred in failing to dismiss the case for failure of the State to provide a speedy trial. At the outset, Gray admits that “the record is unclear as to the factual basis of his issue.” Gray was arrested on April 25, 2001, and indicted on June 14, 2001. He was arraigned on January 12, 2004, and trial began on June 9, 2004. Gray demanded to exercise his right to a speedy trial on December 10, 2003. The court refused to dismiss the case because it found that no prejudice was asserted or shown to have been caused to Gray as a result of the time between arrest and trial.

Constitutional Speedy Trial Right

¶ 29. “The Sixth and Fourteenth Amendments to the United States Constitution, along with Article 3, Section 26 of the Mississippi Constitution, guarantee a defendant the right to a speedy trial.” Stark v. State, 911 So.2d 447, 449(116) (Miss.2005) (citing Young v. State, 891 So.2d 813, 816(¶ 5) (Miss.2005); Hersick v. State, 904 So.2d 116, 121(¶ 3) (Miss.2004)). In reviewing whether a defendant’s constitutional speedy trial rights have been violated, the courts of this state look to the factors detailed in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Stark, 911 So.2d at 449-50(¶6) (citing Price, 898 So.2d at 647-48 (¶¶ 10-11); Young, 891 So.2d at 816(¶5); Hersick, 904 So.2d at 121(¶3)). Under the constitutional speedy trial analysis, “[t]here is no set amount of time within which a defendant must be brought to trial.” Id.

¶ 30. Instead, the Barker test details four factors that must be considered together and balanced: “(1) length of delay, (2) reason for delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant.” Id. at 450(¶ 7) (citing Barker, 407 U.S. at 530-32, 92 S.Ct. 2182; Taylor v. State, 672 So.2d 1246, 1258 (Miss.1996)). The Barker analysis comes into play “when there is a presumptively prejudicial delay.” Id. (citations omitted). In Mississippi, “any delay exceeding eight months is presumptively prejudicial.” Id. (citing Smith v. State, 550 So.2d 406, 408 (Miss.1989)). In the present case, more than eight months elapsed between trial and Gray’s arrest, the event that triggered the calculation of time. Id. (citing Smith, 550 So.2d at 408). Therefore, the period of time elapsed is presumptively prejudicial, and we turn to an analysis of the Barker factors.

Length of Delay

¶ 31. As we have already addressed, over four years elapsed between Gray’s arrest and his trial. Therefore, this factor weighs in favor of Gray and necessitates a discussion of the remaining Barker factors. See Stark, 911 So.2d at 450(¶ 10).

Reason for Delay

¶ 32. Unfortunately, the record in this case, as recognized by both Gray and the State, is woefully inadequate. In fact, no reason whatsoever for the delay appears in the record. The reason for the delay is not addressed below by Gray’s attorneys, the State, or the court. Therefore, we find that this factor weighs slightly in favor of Gray, since the burden is on the State to explain why there was good cause for a delay. Id. at 450-51(¶ 11) (citing Price, 898 So.2d at 647(¶ 9)).

Defendant’s Assertion of His Right

¶ 33. The third Barker factor is whether the defendant asserted his right to a speedy trial. We find that this factor weighs slightly in favor of Gray. Although Gray asserted his right to a speedy trial, he did not do so until December 10, 2003. After assertion of his right, his case was promptly assigned to the court’s docket, and he was brought to trial about six months later.

Prejudice to the Defendant

¶ 34. The final factor is whether prejudice was suffered by the defendant because of the delay in being brought to trial. We find that this factor weighs heavily in favor of the State, because no actual prejudice whatsoever has been asserted by Gray, either on appeal or at trial. Gray has not been able to name the “loss of evidence, the death of a witness, or [that] the investigation became stale.” Manix v. State, 895 So.2d 167, 177(¶22) (Miss.2005) (citing Hughey v. State, 512 So.2d 4, 11 (Miss.1987)). When arguing his speedy trial motion before the trial court, Gray’s attorney stated only: “Eight months have passed, prejudice to this defendant,” without any explanation of exactly what prejudice had been suffered by Gray. The attorney went on to say “he can’t possibly have a fair trial after three years,” but did not explain why Gray could not have a fair trial after three years. As pointed out by the prosecutor below, “the defendant has cited no actual prejudice to his case. He’s not listed one witness that is missing.... He has been incarcerated. However, that was due to a later charge; thus that incarceration did not come as a result of this charge.” Gray’s appeal brief also fails to cite any actual, specific prejudice whatsoever.

¶ 35. In the absence of any proof of prejudice, or even an allegation of prejudice suffered by Gray, this factor weighs heavily in favor of the State. Because Gray has not been able to allege any prejudice suffered by him as a result of the delay in bringing him to trial, we find that his constitutional right to a speedy trial has not been violated. We recognize that a large amount of time passed between Gray’s arrest and his trial, but mere length of time does not violate a defendant’s right to a speedy trial. See Manix, 895 So.2d at 177(¶ 24) (holding that delay of nearly four years was not in violation of defendant’s constitutional rights where “any presumptive prejudice Manix may have suffered is overwhelmed by the absence of actual prejudice”).

Statutory Speedy Trial Right

¶ 36. Defendants in Mississippi are also guaranteed a speedy trial under Mississippi Code Annotated section 99-17-1, as revised, which states: “Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred and seventy (270) days after the accused has been arraigned.”

¶ 37. In the present case, Gray was arraigned on January 12, 2004, and trial began on June 9, 2004. By our calculation, that means that significantly less than two hundred and seventy days passed between Gray’s arraignment and trial, even before subtracting any amounts of time that were for “good cause.” Therefore, Gray’s statutory right to a speedy trial was not violated.

A Amendment of the Indictment

¶ 38. In this contention of error, Gray claims that the lower court erred when it allowed the State to amend the indictment twice. At the outset, we note that, although there were indeed two motions to amend the indictment, only the second motion was actually granted. Therefore, there was, in effect, only one amendment to the indictment in this case. The purpose of the amendment was to reflect Gray’s habitual offender status. Gray complains specifically that the motions alleged incorrect cause numbers, dates, and misspellings of Gray’s name.

¶ 39. As the State correctly points out, although there were clerical errors in the motions to amend, copies of the court orders of Gray’s previous convictions were attached to the motions. The copies clearly stated Gray’s social security number and date of birth, and the court put the correct cause numbers and dates in its order amending the indictment. Additionally, it is clear that amendments may be made to an indictment in order to reflect a defendant’s status as an habitual offender. Willie v. State, 876 So.2d 278, 279 (¶¶ 3-4) (Miss.2004) (citing Rule 7.09 of the Mississippi Uniform Rules of Circuit and County Court; Burrell v. State, 726 So.2d 160, 162 (¶¶ 3—4) (Miss.1998)).

¶ 40. Gray also contends that “the lower court entered what appears to be an ex parte order ... allowing both amendments.” Although it is not clear from the record whether the order was ex parte, no objection was raised to the amendment at trial, and, therefore, Gray is barred from raising the issue on appeal. Williams v. State, 794 So.2d 181, 187(¶ 23) (Miss.2001) (citing Foster v. State, 639 So.2d 1263, 1288-89 (Miss.1994)). Gray contends that “it appearing that the orders were entered ex parte, there would be no place for a contemporaneous objection to be made.” However, we note that no objection whatsoever was made to the amendments below — not' at sentencing, and not during Gray’s motion for a new trial.

¶ 41. Gray also implies that the granting of the motions constitutes plain error when he argues: “It is not clear that an objection needed to be made because the motions were defective on their face ... and it is without question that these amendments prejudiced the defendant....” Because there were copies of the court conviction orders attached to the motion, and because the trial court clearly placed the correct information regarding the conviction in its order amending the indictment, we do not find that the granting of the motion rose to plain error, if any error at all. Additionally, we note that Gray does not contend that he was not actually convicted of the prior crimes. There is no doubt that he had actually committed the crimes and was subject to habitual offender status. Therefore, his sentencing as a habitual offender could cause no prejudice to him.

5. Confidential Informant and Motions to Suppress

¶ 42. In this issue, Gray contends that the court erred in finding probable cause based on “an undisclosed confidential informant.” Gray argues that this error resulted in the admission of improper drug evidence taken from the scene of the crime. Gray’s statement of the issue indicates that he also believes that this error led to the “admitting as evidence statements of the defendant....” However, the argument that follows in his brief does not discuss the admission of his statements at trial. Therefore, we decline to find any error based on the admission of Gray’s statements at trial, since he has provided no factual or legal argument for why any admission was in error.

¶ 43. The basis of Gray’s argument for why the court erred in finding probable cause is that (1) “[i]t is apparent from the testimony of Shegog that the undisclosed confidential informant was an actual witness to the offense for which the appellant was charged,” and (2) “the original of the prepared affidavit was never found.” Gray also contends that “[f]or some reason no affidavit was ever executed to justify the issuance of the warrant.” We find this particular allegation to be unsupported by the record. Although it is true that the State was unable to present a copy of the affidavit bearing the court’s signature, a copy of the affidavit was produced, Shegog testified that he presented the sworn affidavit to the court that issued the search warrant, and the court’s order indicated that an affidavit had been presented and used in determining that probable cause existed for the issuance of a search warrant. Therefore, we find that the record clearly supports a finding that an affidavit was executed.

¶44. As support, Gray cites State v. Woods, 866 So.2d 422 (Miss.2003), where the Mississippi Supreme Court ruled that information supplied by a confidential informant was insufficient to support the issuance of a search warrant. However, the facts of Woods were notably different from the present case. In Woods, a previously-unknown confidential informant provided testimony that was not corroborated in any way. By contrast, in the present case, Shegog testified that the informant had been used numerous times in the years prior to Gray’s arrest and was well-known. Shegog testified that the informant had never given him erroneous information. Shegog also testified that the informant had told police officers that he had witnessed the illegal activities occurring at the home first-hand. Furthermore, before executing the warrant, She-gog conducted surveillance on Gray’s house to confirm the veracity of the informant’s information. In short, Woods provides no relief to Gray because the informant in this case was known to the police and his information was corroborated by the police.

¶ 45. We find that probable cause was shown to have existed in support of the issuance of the search warrant. Although the signed original of the affidavit supporting the warrant’s issuance was lost, a copy of the affidavit was presented, the court’s order indicated that it had reviewed an affidavit before issuing the search warrant, and Shegog testified that he had presented the court with an affidavit, although he no longer had the affidavit in his possession. Therefore, no error occurred.

6. Denial of Motion in Limine

¶ 46. In this contention of error, Gray claims that the court erred in refusing to grant a defense motion in limine concerning Gray’s prior manslaughter conviction. The defense sought to receive a ruling that the prosecution could not, under any circumstances, mention Gray’s previous manslaughter conviction. The defense also offered a proffer of Gray’s testimony and contended that Gray could not take the stand unless the State was prevented from impeaching him with information about his conviction. The prosecution contended that the granting of the motion would have been improper because the State would be entitled to question Gray about the manslaughter conviction if he testified to something relevant. For example, if Gray had taken the stand and testified that he had no previous criminal experience, and therefore did not understand what a Miranda waiver was, the State contended that it would then be able to impeach him with his prior manslaughter conviction. The court agreed, and declined to grant the defense’s motion in limine.

¶ 47. We find that, while the manslaughter conviction could not have been used for general impeachment, it could have properly been used if Gray took the stand and testified that he had no prior criminal experience. See Gates v. State, 484 So.2d 1002, 1009 (Miss.1986); Wells v. State, 288 So.2d 860, 864 (Miss.1974). In making its determination, the court indicated that it was looking at the factors that had been argued by the parties, the factors found in Rule 609 of the Mississippi Rules of Evidence and Johnson v. State, 525 So.2d 809 (Miss.1988). Motions in limine should generally only be granted where “the material or evidence in question will be inadmissible at a trial.” Hersick, 904 So.2d at 127(¶ 41) (quoting McGilberry v. State, 797 So.2d 940, 942(¶ 12) (Miss.2001)). It was certainly not clear' in the present case that the evidence in question would have been inadmissible at trial. Therefore, the court did not abuse its discretion in refusing to grant the defense’s motion in limine, and no error occurred. See id. at 127(¶ 42).

7. Handwriting Expert

¶ 48. Gray claims that it was error for the trial court to deny him funds to retain a handwriting expert to examine the agreement allegedly entered into and signed by Shegog. Gray contends that a handwriting expert is necessary to determine the authenticity of the document in question. In response, the State argues that the document is “palpably false,” and reiterates the findings made by the trial court regarding the document.

¶49. As support, Gray quotes extensively from Richardson v. State, 767 So.2d 195 (Miss.2000). In Richardson, the Mississippi Supreme Court found that a lower court erred in failing to grant expert funds to a defendant in order to test seminal fluid for DNA in a rape case. Id. at 197(¶ 2). The seminal fluid in question “was relied upon as evidence that there had in fact been penetration,” and not merely “lustful touching of a child.” Id. at 197 (¶¶ 4-5). In reaching its conclusion, the court noted: “Under these circumstances the DNA evidence would be relevant and material. It could significantly aid the defense by showing that the semen sample found was not [the defendant’s], thus eliminating the semen as objective evidence of penetration.” Id. at 199(¶ 15).

¶ 50. “The standard of review of the trial court’s denial of expert assistance is that an abuse of discretion occurred such that the defendant was denied due process whereby the trial was fundamentally unfair.” Richardson, 767 So.2d at 197(¶ 7) (citing Coleman v. State, 697 So.2d 777, 780 (Miss.1997)). The Richardson court also noted that “determination of whether the State must pay for an expert witness for an indigent defendant must be made on a case by case basis.” Id. at 198(¶ 12).

¶ 51. In the present case, we fail to see how the court’s denial of funds for a handwriting expert made the trial “fundamentally unfair.” Even assuming the best-case scenario for Gray, a handwriting expert would only have been able to show that Detective Shegog actually signed the document. However, Gray’s admittedly handwritten statement appeared below Shegog’s signature, and there was no indication on the document that Shegog had read Gray’s handwritten addition or agreed to it. Additionally, there were sufficient facts from which the court could reasonably deny Gray expert funds, such as: Gray’s loss of the statement and limited explanation of how it was recovered, the extremely poor condition of the document, Shegog’s denial of having signed any such agreement with Gray, Gray’s inability to explain the condition of the document, and the fact that the document was not a form used by the Jackson Police Department. The facts here are notably different from the facts in Richardson, where evidence was being used without any proof that the fluid belonged to the defendant. In the present case, there was no abuse of discretion by the trial court in denying Gray funds with which to hire an expert in handwriting analysis, and therefore no error.

8. Jury Instructions

¶ 52. Gray contends that instructions S-2, S-3, and S-7 were granted in error by the court. Gray also contends that the court erred in refusing to grant D-l, D-2, D-4, D-5, and D-9. In the interest of thoroughness, we will briefly address each of the instructions complained of by Gray.

S-2

¶ 53. Gray argues that S-2 contained an improper statement of the law when it indicated that actual possession did not need to be proven, but only that the confiscated drugs were “subject to” Gray’s “dominion and control.” S-2 was given as instruction number six to the jury, and states:

The Court instructs the Jury that to constitute “Possession” as applied to this case, it is not necessary that the State prove actual physical possession; it is sufficient if the State establishes that the substance involved was subject to the defendant’s dominion and control, and that he was aware or reasonably should have been aware, of its presence and character.

¶ 54. We find Gray’s argument regarding this instruction unpersuasive. The Mississippi Supreme Court has repeatedly held: “Constructive possession may be shown by establishing that the drug involved was subject to [the defendant’s] dominion or control.” Curry v. State, 249 So.2d 414, 416 (Miss.1971) (emphasis added); see also, e.g., Ginn v. State, 860 So.2d 675, 680(¶ 9) (Miss.2003) (affirming jury instruction that stated, “Constructive possession may be shown by establishing that the substance was subject to the Defendant’s dominion or control”); Smith v. State, 889 So.2d 489, 497(¶21) (Miss. 2003) (“Constructive possession may be shown by establishing dominion or control”); Cunningham v. State, 583 So.2d 960, 962 (Miss.1991) (citing the above language from Curry). No error arose from the inclusion of the words “subject to” in the jury instruction.

S-3

¶ 55. Proposed instruction S-3, which was given to the jury as instruction number seven, states: “The Court instructs the Jury that if you believe ... that the substance was subject to his dominion and control, it is your duty as jurors to find him guilty as charged.” Gray objects to S-3 for the same reason as he objected to instruction S-2. Since we have found that the quoted language is a proper statement of the law, we also find no error in the granting of instruction S-3.

S-7

¶ 56. Proposed instruction S-7, which was given as instruction number eleven, states: “The Court instructs the jury that where cocaine is incorporated into some other substance, it is the weight of the entire mixture, rather than just any portion analyzed or tested, that must taken [sic] and considered as the weight for purposes of criminal liability.” Gray argues that “while [S-7] might be a correct statement of the law, it was an instruction unsupported by any evidence and was intended to confuse the jury.”

¶ 57. We find that this instruction was an instruction regarding the law as stated by Lewis v. State, 765 So.2d 493, 497-98(¶ 17) (Miss.2000), where the Mississippi Supreme Court held: “where cocaine is incorporated into some other substance, the Legislature intended that the weight of the entire mixture be taken as the weight for purposes of criminal liability.” After reviewing the record in this case, we find that S-7 as given is a proper statement of the law, supported by the evidence presented in the case, and is not an improper comment on the facts of the case. No error arose from the court’s grant of S-7.

D-l

¶ 58. Proposed instruction D-l was a peremptory instruction. Since we have already found that the jury’s verdict was not against the overwhelming weight of the evidence, and the evidence supporting Gray’s conviction was sufficient, we find no error in the court’s denial of a peremptory instruction.

D-2, D-L and D-5

¶ 59. Proposed instructions D-2, D^4, and D-5 were all denied by the lower court. Gray contends on appeal that their denial was error, but provides no argument or case citations to support his contention. Therefore, we decline to consider Gray’s contentions regarding these issues: “[The defendant] makes these claims without citing to any law and is therefore procedurally barred from making the arguments.” Bush v. State, 895 So.2d at 849(¶ 34) (citing Dycus v. State, 875 So.2d 140, 169 (¶ 146) (Miss.2004)).

D-9 and D-9 A

¶ 60. Although instruction D-9, which attempted to elaborate on the concept of constructive possession, was not given, D-9A, which removed a paragraph and added some language, was given. As with the State’s instructions, Gray objects specifically to the inclusion of “subject to” in the revised instruction; no objection is made to the deletion of the paragraph. D-9A, as given, states:

The Court instructs the Jury that in this case the defendant is charged under the theory of constructive possession. In order to prove constructive possession, the evidence must convince you, beyond a.reasonable doubt, that the defendant was aware of the presence of the particular substance and was intentionally and consciously in possession of it.
There must be sufficient facts to warrant a finding that [sic] defendant was aware of the presence of the particular substance and was intentionally and consciously in possession of it. It need not be actual or physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

¶ 61. As we have already discussed, the “subject to” language is an acceptable phrasing of Mississippi law concerning constructive possession, language that has appeared directly in Mississippi appellate cases. The Mississippi Supreme Court has also approved jury instructions containing the “subject to” language. Ginn, 860 So.2d at 680(¶ 9). Therefore, no error occurred as a result of the inclusion of “subject to” in instruction D-9A, and Gray’s contention to the contrary is without merit.

9. Constitutionality of Sentence

¶ 62. Gray contends that his sentence of life is unconstitutionally cruel and unusual. The sentence was imposed because Gray had previous convictions which established his status as an habitual offender. The sentence was imposed according to Mississippi Code Annotated section 99-19-83, as revised, which states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times ... shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Gray argues that the sentence imposed “shocks the conscience so that a review must be made.”

¶ 63. We note that “where a sentence is within the prescribed statutory limits, it will generally be upheld and not regarded as cruel and unusual.” Tate v. State, 912 So.2d 919, 933(¶ 48) (Miss.2005) (quoting Stromas v. State, 618 So.2d 116, 123-24 (Miss.1993)). When a sentence “is ‘grossly disproportionate’ to the crime committed, the sentence is subject to attack on the grounds that it violates the Eighth Amendment prohibition of cruel and unusual punishment.” Id. at 933(¶ 49). The three factors to look at when determining whether a sentence is proportional are: “(1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.” Willis v. State, 911 So.2d 947, 951(1117) (Miss. 2005) (quoting Solem v. Helm, 463 U.S. 277, 292-94, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)).

¶ 64. No attempt has been made by Gray to address the second or third factor of the proportionality analysis. The Willis court held that failure to address all three of the factors bars a defendant’s claim on appeal. Id. at 951(¶ 18). In the present case, Gray has only attempted to address one of the factors. Therefore, his claim is procedurally barred. We note that, even if Gray’s claim were not procedurally barred, we have already found in prior cases that defendants convicted of possession of a controlled substance may be sentenced to life without the possibility of parole under the habitual offender provisions. See Wall v. State, 718 So.2d 1107, 1114-15 (¶¶ 29-30) (Miss.1998) (citations omitted); Oby v. State, 827 So.2d 731, 734-35(¶ 12) (Miss.Ct.App.2002) (citations omitted).

¶ 65. Since the sentence was within the statutory range, and was in fact mandatory, and since Gray has been unable to show that his sentence is grossly disproportionate to his crime, we find that the court did not err in sentencing Gray to life without the possibility of parole. The sentence was not cruel and unusual.

10. Effectiveness of Counsel

¶ 66. Gray also contends that his trial counsel was ineffective for several reasons. We have recently held that “a claim of ineffective assistance of counsel is best brought at the post-conviction relief stage as the record on direct appeal is generally insufficient to evaluate the claim.” Lyle v. State, 908 So.2d 189, 196(¶ 35) (Miss.Ct.App.2005) (citing Read v. State, 430 So.2d 832, 837 (Miss.1983)). “When an ineffective assistance claim is made on direct appeal, the proper resolution is to deny relief without prejudice to the defendant’s right to assert ineffective assistance of counsel in a post-conviction relief proceeding.” Id. (citing Read, 430 So.2d at 837). When a record appears to be adequate on direct appeal, a Mississippi appellate court may choose to address an ineffective assistance of counsel claim. Id. (citations omitted).

¶ 67. In the present case, we find that the record is inadequate for us to fully address Gray’s ineffective assistance of counsel claim. As noted by both parties, the record in this case is lacking in several respects, and evidence may be presented to more fully flesh out Gray’s ineffective assistance of counsel claim in a post-conviction relief proceeding. Therefore, we deny relief to Gray on this claim without prejudice to his right to assert his ineffective assistance of counsel claim when seeking post-conviction relief.

¶ 68. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF POSSESSION OF CONTROLLED SUBSTANCE (COCAINE) AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . The Entergy bill was mistakenly left out of the record given to this Court. However, Gray does not challenge its existence, and numerous references are made to it in the record. It is clear that an Entergy bill was presented below bearing Gray's name and the address of the house.

      . Although Gray addresses this issue in conjunction with his second issue, we treat the two issues separately for clarity’s sake.

      . This issue combines issues three, four, and five as stated by Gray. We address these issues together because Gray does so without any distinction between them.

      . Gray argues in his reply brief that "the assertion ... that '[t]here was no claim of a discovery violation when Shegog testified to having seen the Appellant drop something.’ is a complete misstatement of fact. Defense counsel argued this strongly argued this [sic] at trial.” Gray then cites us to a particular portion of the record. However, that part of the record has nothing to do with Shegog’s testimony that he saw Gray throw something to the ground. The objection discussed in those pages had to do with Shegog's testimony that there was only one statement. Our review of the record discloses no objection whatsoever to Shegog's testimony that Gray threw something to the ground, despite Gray’s contentions to the contrary.

      . The jury was actually impaneled on June 8, 2004, although the trial did not commence until the following morning.

      . Gray's brief states that he was arraigned on July 23, 2001, a date based on pro se pleadings filed by Gray. However, the record contains an arraignment order stating that Gray appeared before the Hinds County Circuit Court for arraignment on January 12, 2004.

      . Although Gray does not make any argument concerning the informant’s participation in any crime, he does point out that the informant was an "actual witness.” The identity of informants who are participants or eyewitnesses to a crime with which a defendant is charged must be disclosed. Swann v. State, 806 So.2d 1111, 1119 (¶¶ 32-33) (Miss.2002). However, in the present case, no allegation of error was raised as a result of the State's nondisclosure of the identity of the eyewitness, and no argument is made on appeal that the non-disclosure of the informant's identity constitutes reversible error. Therefore, we find that, in the absence of a contention that this was error, or that Gray's attorneys requested this information, any error was harmless and does not require reversal. Although Gray’s attorneys filed a motion to suppress based on an allegation that "the alleged confidential informant has not provided reliable and credible information in the past," the motion did not ask that the identity of the informant be disclosed. No mention of any problem with the confidential informant was made in Gray's posttrial motion for a new trial. We also note that the record is unclear as to whether the informant witnessed Gray's possession of the cocaine, or merely the sale of a small amount of cocaine. If the informant did not witness possession of the cocaine, his identity would not be required even if a request had been made.

      . Gray also discusses several of the other proposed instructions, but acknowledges that no objection was made below to the instructions. In the absence of an objection at trial, we find that any objection to those instructions is waived on appeal.

      . The State contends that Gray did not object to S-2 on this particular ground in the trial court, and his argument is, therefore, waived. Since the discussion regarding objections to proposed jury instructions occurred off the record, and the objections were simply summarized by the court after the discussion, we are left with only the summary of what objections were made to specific instructions. It is not clear from the record whether Gray contended at trial that the instruction was an improper statement of the law. However, regardless of whether the specific objection was made at trial, there is no merit to it.