text:
    Laefaebei Euylessity STINGLEY a/k/a Laefaebei E. Stingley a/k/a Laefaevei E. Stingley, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00555-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2007.

      Brenda Jackson Patterson, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J., for the Court.

¶ 1. On November 1, 2005, Laefaebei Euylessity Stingley was found guilty in the Circuit Court of Tunica County of possession of marijuana with intent to sell more than five kilograms of marijuana. On appeal, Stingley argues that there was insufficient evidence to support his conviction and that the trial court committed reversible error by the comments it made to the jury regarding the absence of Stingley’s co-defendant, Perry Broadway.

FACTS

¶2. On April 21, 2005, Tunica County Deputy Sheriff Willie Dunn and Deputy Paul Biggins were returning from a lunch meeting. They were traveling south on Highway 61 in an unmarked car. The officers observed a 1991 Chevrolet Caprice traveling south well below the speed limit. They passed the Caprice, and deputy Big-gins noticed that there were several tires in the backseat of the Caprice. He and deputy Dunn decided to pull the car over and question the driver about the tires because Tunica County had recently experienced numerous car burglaries.

¶ 3. Officer Dunn asked the driver, Stingley, for his driver’s license. Stingley replied that his license had been suspended. Officer Dunn ran his license number and confirmed that it was suspended. The officers arrested Stingley and discovered that the passenger, Perry Broadway, had been drinking. The officers then conducted an inventory search of the car. Officer Dunn opened the trunk of the car and found a duffle bag. In the bag, he found several garbage bags, which contained several kilograms of marijuana. The marijuana was packaged in both loose and brick form. After deputy Dunn discovered the marijuana, deputy Biggins handcuffed Broadway. Then, Narcotics Detective Faye Pettis arrived and collected the marijuana for evidence.

¶4. At trial, detective Pettis testified that the value of the marijuana found in the Caprice was between forty to sixty thousand dollars. She also stated that neither Stingley’s nor Broadway’s fingerprints were on the duffle bag, the garbage bags, or any of the small bags of loose marijuana. However, she testified that when Stingley was asked why he had this much marijuana, he stated “[he] was going to have a Cheech and Chong party.” Detective Pettis believed that this meant Stingley was going to have a party with the marijuana.

¶ 5. After the close of the State’s case, both defendants’ attorneys moved for a directed verdict. The trial court found that the State had put forward sufficient evidence with regards to Stingley, but it granted Broadway’s motion. In the presence of the jury, the judge explained, “[t]he Court dismissed the charges against the codefendant and you will'only be deciding the case against Mr. Stingley.”

¶ 6. During the defense’s case, Stingley testified that he was driving to Memphis because he had to meet with his parole officer. His mother was unable to take him, and his car did not work. So, he borrowed his cousin’s car. Mr. Broadway asked if he could ride with him, and Sting-ley consented. Stingley drove Broadway to a tire shop in Memphis and left him there while he met with his parole officer. Next, Stingley parked the car downtown at a valet parking garage and gave an attendant the keys. After the meeting, he picked up Broadway at the tire store. Stingley testified that Broadway put several tires in the back of his cousin’s car. They started traveling south on Highway 61 where they were eventually stopped by deputies Dunn and Biggins.

¶7. Stingley testified that he never opened the trunk during the trip. He stated that Broadway was the only person to open the trunk during the trip. He said that Broadway opened the trunk and placed a turtle in it that they had found. He further testified that he did not know drugs were in the trunk and that he did not make any statement to detective Pettis regarding a “Cheech and Chong party.”

¶ 8. Stingley filed a motion for judgment not withstanding the verdict or, in the alternative, a new trial, which the trial court denied.

ANALYSIS

I. Did the trial court err in failing to grant Stingley’s motion for directed verdict?

¶ 9. Stingley argues that the trial court erred by denying his motion for directed verdict because there was insufficient evidence to show that he exercised dominion or control over the marijuana so as to constitute constructive possession of the contraband.

¶ 10. To evaluate whether the evidence given is sufficient, this Court must determine if any evidence may “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.” Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)) (emphasis added). If reasonable jurors could have reached different conclusions with respect to every element of the offense, the evidence will be considered sufficient. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (citing Edwards, 469 So.2d at 70). The prosecution receives the benefit of all “favorable inferences that may be reasonably drawn from the evidence” when determining if the evidence presented was sufficient to support the verdict. Smith v. State, 839 So.2d 489, 495(¶ 12) (Miss.2003).

¶ 11. To show that a defendant possessed marijuana with intent to distribute, the State must prove beyond a reasonable doubt that the defendant “knowingly or intentionally ... possessed marijuana] with intent to sell, barter, transfer, manufacture, distribute or dispense.... ” Miss. Code Ann. § 41-29-139 (Rev.2005). Because Stingley did not physically possess the marijuana, we must examine the issue of constructive possession.

[W]hat constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of ‘possession’ is a question which is not susceptible to a specific rule. However, there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual 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.

Dixon v. State, 953 So.2d 1108, 1112(¶ 9) (Miss.2007) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)) (emphasis added). Furthermore, if the defendant is the driver but not the owner of the car that contains the drugs, the State must show additional incriminating facts to link the defendant to the contraband. Ferrell v. State, 649 So.2d 831, 835 (Miss.1995).

¶ 12. The State presented evidence that established the following facts: (1) Stingley was in possession and control of his cousin’s car when the contraband was found; (2) in Officer Pettis’ opinion, the weight and value of the marijuana indicated that it was intended for distribution and sale; and (3) Officer Pettis testified that Stingley told her he had the marijuana because “[he] was'going to have a Cheech and Chong party.”

¶ 13. Stingley relies on the case of Fultz v. State, 573 So.2d 689 (Miss.1990). In Fultz, the defendant was arrested “after failing three field sobriety tests.” Id. at 689. The officer later returned to inventory the vehicle Fultz was driving. Id. “While searching the trunk the officer opened a blue duffel bag.” Id. at 690. The bag contained several small bags, which contained “seven and a half ounces [of marijuana].... The vehicle belonged to the defendant’s sister and at trial he denied any knowledge of the contraband in the truck.” Id. The Mississippi Supreme Court found that the “only additional incriminating circumstance was that the defendant had a small amount of marijuana on his person at the time of the arrest ... [and that this] standing, alone, is insufficient to prove any connection between the contraband and the defendant.” Id. at 691. The court also found that the following facts were insufficient to connect the defendant to the drugs: Fultz admitting he used marijuana, “that he had made several ‘unexplained stops during the night,’ and that it would be illogical for someone to leave their drugs in a vehicle that someone else would drive.” Id.

¶ 14. Like Fultz, Stingley was driving the car of a family member, which contained a duffle bag full of marijuana in the trunk. Also, like Fultz, the officer in this case found the drugs after conducting an inventory search of the car. Unlike Fultz, however, there was evidence of Stingle/s admission that he was to use the drugs found in the vehicle. In Magee v. State, 912 So.2d 1044, 1048(¶5) (Miss.Ct.App.2005), an officer testified that the defendant in that case confessed to possession of the drugs. We found this testimony by an officer to be significant in establishing constructive possession. Id. at (¶¶ 5-10). Like the officer in Magee, Officer Pettis in this .case testified that Stingley said he “was going to have a Cheech and Chong party,” with the marijuana that the officer’s found in his cousin’s car. It is common knowledge that Cheech and Chong movies portrayed excessive drug use. This incriminating confession .made in front of several officers after Stingley was arrested would amount to enough evidence to show that Stingley knew of the marijuana’s presence in the trunk of the Chevrolet Caprice because his statement shows that he intended to use the drugs at a party. Thus, Stingley’s first assertion of error is without merit.

II. Did the trial court err by the statement it made to the jury1?

¶ 15. Stingley also argues that the trial court abused its discretion by stating, “[t]he Court dismissed the charges against the codefendant and you will only be deciding the case against Mr. Stingley.” He argues that the trial court’s statement is reversible error because the Mississippi Supreme Court has repeatedly stated:

jurors are very susceptible to the influence of the judge, and thus a judge “cannot be too careful and guarded in language and conduct in the presence of the jury to avoid prejudice to either party.” [citation omitted.] The Court further stated that “a reviewing court will not stop to inquire whether the jury was actually influenced by the conduct of the judge. All the authorities hold that if they were exposed to improper influences, which might have produced the verdict, the presumption of law is against its purity; and testimony will not be heard to rebut this presumption.” [citation omitted.] Therefore, whether the jury was actually prejudiced or influenced by thé statement is not for the Court to decide; rather, the mere fact that the statement was made to the jury creates a conclusive presumption of such prejudice.

Weatherly v. Welker, 943 So.2d 665, 669(¶ 10) (Miss.2006). Thus, Stingley argues that the trial court’s statement was the equivalent of telling the jury they must find against Stingley. This he believes unfairly prejudiced the jury against him.

¶ 16. The State argues that any appealable issue regarding this statement was waived by Stingley’s failure to object during trial. The Mississippi Supreme Court has held numerous times that “[fjail-ure to make a contemporaneous objection [at trial] waives an issue for purposes of appeal.” Spicer v. State, 921 So.2d 292, 305(¶ 22) (Miss.2006). The record shows that Stingley failed to object to the judge’s statement during trial. Therefore, we find that Stingley is procedurally barred from raising this issue on appeal.

¶ 17. Notwithstanding the procedural bar, Stingley’s argument also fails because any error by the trial court was cured by the jury instructions given. The trial court instructed the jury that “It would be a violation of your sworn duty to base your verdict upon any other view than that given in these instructions.... It is your exclusive province to determine the facts in the case and to consider the weight of the evidence for that purpose.” We find that this issue is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY OF CONVICTION OF POSSESSION OF MARIJUANA WITH THE INTENT TO SELL, DISTRIBUTE, TRANSPORT OR DELIVER AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

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

      . Stingley made this comment at the Tunica County Sheriff's Office after being taken into custody.


source: Caselaw Access Project

author: IRVING, J., for the Court.

license: Public Domain

text:
    Wanza McGUFFIE, Appellant v. Ray HERRINGTON and Jo Ann Herrington, Appellees.
    No. 2006-CA-01337-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2007.

      Clarence McDonald Leland, Jackson, attorney for appellant.
    W. Brady Kellems, Brookhaven, Joseph Preston Durr, attorneys for appellees.
    Before KING, C.J., IRVING, CHANDLER and CARLTON, JJ.
   IRVING, J., for the Court.

¶ 1. Wanza McGuffie filed suit against Ray Herrington and Jo Ann Herrington, husband and wife, in Lincoln County Circuit Court, alleging a variety of civil claims. The court granted summary judgment on behalf of the Herringtons, finding that no genuine issue of material fact existed in support of McGuffie’s claims. Aggrieved, McGuffie appeals and asserts that the court erred in granting summary judgment.

¶ 2. Finding error, we affirm in part and reverse and remand in part.

FACTS

¶ 3. McGuffie was dating Sedgie Her-rington, Ray’s brother, on October 31, 2002, when Sedgie had a stroke. According to McGuffie, Sedgie asked her to take care of some of his things, namely a truck and some personal property, until he got out of the hospital. Thereafter, Ray and Jo Ann initiated a series of actions against McGuffie in an attempt to retrieve Sed-gie’s property. Eventually both civil and criminal actions were prosecuted against McGuffie, who prevailed against all of the claims. The last criminal case was disposed of on July 9, 2003.

¶ 4. On July 8, 2004, McGuffie filed a civil complaint in the Lincoln County Circuit Court against the Herringtons, alleging false imprisonment, false arrest, negligent infliction of emotional distress, intentional infliction of emotional distress, civil conspiracy, simple negligence, and malicious prosecution. On May 1, 2006, the Herringtons filed a memorandum in support of summary judgment, which the court granted. In the memorandum, the Herringtons contended that the statute of limitations had run on all of McGuffie’s claims. The trial court found that the statute of limitations had run on all of the claims except the claims for malicious prosecution and negligent infliction of emotional distress but that there was no genuine issue of material fact present as to any of the claims, thereby warranting the grant of summary judgment.

¶ 5. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. “We apply ‘a de novo standard of review to the trial court’s grant of summary judgment.’ ” Lamar v. Thomas Fowler Trucking, Inc., 956 So.2d 878, 881 (¶ 8) (Miss.2007) (quoting Moss v. Batesville Casket Co., 935 So.2d 393, 398(¶ 15) (Miss.2006)). Summary judgment should be granted only when the evidence presented shows “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (quoting M.R.C.P. 56(c)). The party moving for summary judgment, in this case the Herringtons, “bears the burden of demonstrating that no genuine issues of material fact exist for presentation to the trier of fact, and the non-moving party [here McGuffie] must be given the benefit of every reasonable doubt.” Id. at 881(¶ 9) (quoting Moss, 935 So.2d at 398(¶ 16)). There is always a genuine issue of material fact when “one party swears to one version of the matter in issue and another says the opposite.” Id. (quoting Moss, 935 So.2d at 398(¶ 17)).

¶ 7. We find that summary judgment was proper as to all of McGuffie’s claims except as to the claim for malicious prosecution, because the statute of limitations had run on all of the actions except the claims for malicious prosecution and negligent infliction of emotional distress when McGuffie filed her complaint.

¶ 8. False arrest and false imprisonment are similar torts that share a one-year statute of limitations. Mound Bayou v. Johnson, 562 So.2d 1212, 1218 (Miss.1990). Unlike McGuffie’s malicious prosecution claim, which ripened only when she was finally acquitted of the last charges against her, the false arrest and false imprisonment claims ripened much earlier and, due to the statute of limitations, were no longer viable when McGuffie filed her complaint against the Herringtons. The. one-year statute of limitations also applies to and bars McGuffie’s claim of civil conspiracy. See Gasparrini v. Bredemeier, 802 So.2d 1062, 1065-66 (¶¶ 7-10) (Miss.Ct.App.2001). In addition, we note that McGuffie has provided no facts to support her conspiracy claim other than allegations and the mere association of Ray and Jo Ann. A one-year statute of limitations also bars McGuffie’s claim for intentional infliction of emotional distress. Southern v. Miss. State Hosp., 853 So.2d 1212, 1214-16 (¶¶ 3-13) (Miss.2003).

¶ 9. With the exception of malicious prosecution, negligent infliction of emotional distress is the only claim that survived the statute of limitations. The Mississippi Supreme Court has discussed what proof a plaintiff must put on to prove a claim of negligent infliction of emotional distress:

“[MJental anguish is a nebulous concept and requires substantial proof for recovery.” Further, “if the case [is] one of ordinary garden variety negligence, the plaintiffs would have to prove some sort of injury, whether it be physical or mental. If the conduct was not malicious, intentional or outrageous, there must be some sort of demonstrative harm.”

Ill. Cent. R.R. Co. v. Hawkins, 830 So.2d 1162, 1174(¶ 26) (Miss.2002) (citations omitted). Although McGuffie’s negligent infliction of emotional distress claim survived the statute of limitations, it was still properly dismissed at summary judgment because she failed to produce any genuine issue of material fact regarding the claim. Specifically, McGuffie produced no evidence whatsoever, in her pleadings or any other documents, indicating that she has suffered any “demonstrative harm” as a result of the Herringtons’ actions. Therefore, this claim was also properly dismissed at summary judgment.

¶ 10. Finally, we note that McGuf-fie’s simple negligence claim is indistinguishable from her malicious prosecution claim. In both, she alleges that the Her-ringtons are liable civilly to her because they failed to properly investigate the facts surrounding McGuffie’s possession of Sed-gie’s things. Therefore, like the trial court, we find that the simple negligence claim survives only in the form of McGuffie’s malicious prosecution claim. See Childers v. Beaver Dam Plantation, Inc., 360 F.Supp. 331, 333 (N.D.Miss.1973).

¶ 11. The statute of limitations did not run on the malicious prosecution claim until July 9, 2004, one year after McGuffie was acquitted of the last charges against her. See Jackpot Miss. Riverboat, Inc. v. Smith, 874 So.2d 959, 961(¶ 5) (Miss.2004). Therefore, McGuffie’s malicious prosecution claim, filed on July 8, 2004, was timely. McGuffie also provided a genuine issue of material fact regarding her malicious prosecution claim. The Herringtons, who bear the burden of showing that there is no genuine issue of material fact present, have not proven that there is no genuine issue regarding the claim.

¶ 12. In their brief, the Herring-tons contend that the malicious prosecution claim is barred by the statute of limitations. As we have already found, McGuffie’s malicious prosecution claim was not barred by the statute of limitations. The Herringtons make no further argu-

ment about malicious prosecution specifically, although they do contend generally that: “In Response to the Herrington’s [sic] Motion for Summary Judgment, McGuffie relied upon the allegations of her pleadings, with no accompanying affidavits or specific facts.”

¶ 13. A review of McGuffie’s response to the Herringtons’ memorandum in support of summary judgment belies the Her-ringtons’ claims. In her response, McGuf-fie alleged that there were genuine issues of material fact with respect to the following: (1) whether Ray Herrington had a valid power of attorney for Sedgie, (2) whether Ray Herrington had any authority to file criminal charges against McGuf-fie, and (3) whether the Herringtons adequately investigated the facts surrounding McGuffie’s possession of Sedgie’s property. Additionally, in McGuffie’s response to interrogatories posed by the Herringtons, McGuffie alleged: “The Herringtons wanted to prosecute me for having possession of Sedgie’s things, even though Sedgie requested that I keep his things until he got out of the hospital. The Herringtons had no standing to file charges against me, because they did not own these items.” In addition, in the same interrogatory responses, McGuffie listed multiple witnesses who had knowledge of the facts surrounding Sedgie’s grant of temporary possession of his things to McGuffie.

¶ 14. While the evidence McGuffie produced regarding malicious prosecution was far from robust, we find that it was sufficient to overcome the significant hurdle that a party must overcome for summary judgment. Accordingly, we reverse and remand for further proceedings on only the malicious prosecution claim.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ONE-HALF OF THE COST OF THIS APPEAL IS TO BE PAID BY THE APPELLANT, AND THE REMAINING ONE-HALF IS TO BE PAID BY THE APPELLEES.

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

      . McGuffie separately asserts that the court erred in not giving her a ten-day notice of its intent to rule on the Herringtons’ motion for summary judgment. We note that nearly two months passed between the filing of the request for summary judgment and the court’s ruling on the motion, during which time McGuffie filed a response to the request and the Herringtons filed a response to McGuffie’s response. Clearly, McGuffie had time to file additional affidavits or request a hearing pri- or to the court’s ruling. Additionally, this issue is moot as to McGuffie's malicious prosecution claim, as we find error in that part of the court’s ruling.

      . Sedgie's name is also spelled "Seggie” in various parts of the record. For consistency, we use “Sedgie” throughout.

      . Although not raised as an issue by either party or by the court below, we note that the record is devoid of an actual motion for summary judgment. Upon our request for a supplementation of the record with the motion, the Lincoln County Circuit Court Clerk responded that, according to her records, a “motion for summary judgment has not been filed.” Since neither party makes any issue as to the lack of an actual motion, we treat the filed memorandum as a motion.

      . McGuffie contends that the Herringtons were barred from raising the statute of limitations in their request for summary judgment because they had not raised it as an affirmative defense in their initial response to McGuffie’s complaint. However, the Mississippi Supreme Court has held that the statute of limitations can be raised for the first time at summary judgment if sufficient time is given to the plaintiff to respond. Bennett v. Madakasira, 821 So.2d 794, 802(¶ 29) (Miss.2002). McGuffie had sufficient time to respond to the issue. Therefore, the court did not err in allowing the Herringtons to raise it for the first time in their memorandum.

      .There is no evidence in the record that McGuffie was imprisoned, other than a brief period while she was questioned by Judge Judy Martin in the judge’s chambers pursuant to a criminal affidavit lodged by the Herring-tons.

      . In their memorandum in support of summary judgment, the Herringtons stated that the criminal charges against McGuffie "were dismissed ... on or about February 20, 2003.” It is unclear where the Herringtons got this date; in its order granting summary judgment, the court found that the last criminal action against McGuffie terminated in her favor on July 9, 2003.


author: IRVING, J„ for the Court.

text:
    Bobbie HODGINS, Appellant v. PHILADELPHIA PUBLIC SCHOOL DISTRICT, Appellee.
    No. 2006-CC-01919-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2007.

      William T. May, Newton, Terry L. Jordan, Tanya L. Phillips, attorneys for appellant.

      Donald Joseph Kilgore, Philadelphia, attorney for appellee.
    Before LEE, P.J., IRVING, GRIFFIS and ISHEE, JJ.
   IRVING, J„ for the Court.

¶ 1. This appeal arises out of the Philadelphia Public School District’s decision not to renew Bobbie Hodgins’s employment contract. After Hodgins unsuccessfully challenged the nonrenewal before the Philadelphia School Board, she appealed to the Neshoba County Chancery Court, which affirmed the nonrenewal. Aggrieved, Hodgins appeals and alleges that (1) she was wrongfully denied her right to a hearing, (2) that she was not given statutorily-mandated notice, and (3) that the board acted improperly when it refused to record in its minutes its decision on whether to have a hearing.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In July 2003, Hodgins was hired by the Philadelphia School District as an assistant principal for the 2003/2004 school year. In 2004, Hodgins was hired for the 2004/2005 school year, specifically for the period “beginning on 07/12/2004 and ending on 06/24/2005.” On April 8, 2005, Hod-gins was informed that the district was not going to renew her employment contract. Hodgins received notice of the nonrenewal in a letter from Britt Dickens, the superintendent of the Philadelphia Public School District. In the letter, Dickens informed Hodgins that she would not be entitled to a hearing because she had “not completed two consecutive years with a Mississippi School District,” pursuant to the Education Employment Procedures Law of 2001. On April 25, 2005, Dickens suspended Hodgins with pay for the remainder of the 2005 school year, stating that Hod-gins’s presence and actions had “created an atmosphere that is not conducive to the effective functioning of [the] school.”

¶ 4. Hodgins requested hearings before the school board for both the nonrenewal and' her suspension. She was granted a hearing for the suspension, but was denied a hearing for the nonrenewal. When Hod-gins appeared at the hearing for her suspension, she requested a hearing regarding the nonrenewal and asked that the board record in its minutes its decision to deny a hearing on her nonrenewal. After members of the board briefly conferred, the board stated that, since Hodgins was not entitled to a hearing on the nonrenewal pursuant to state law, the board would not vote on the nonrenewal. Therefore, there was nothing to record in the minutes. Hodgins chose not to present any evidence as to her suspension with pay, which the board affirmed. Hodgins then appealed the board’s decision regarding the nonrenewal to the Neshoba County Chancery Court, which found in favor of the board.

¶ 5. Additional facts, if necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Denial of Hearing

¶ 6. Because the school board is an administrative agency, we will not disturb its decision unless it “was unsupported by substantial evidence; was arbitrary or capricious; was béyond the [board’s] scope or powers; or violated the constitutional or statutory rights of the aggrieved party.” A & F Props., LLC v. Madison County Bd. of Supervisors, 933 So.2d 296, 300(¶ 6) (Miss.2006) (quoting Ladner v. Harrison County Bd. of Supervisors, 793 So.2d 637, 638(¶ 6) (Miss.2001)).

¶ 7. Hodgins makes two separate arguments for why she was entitled to a hearing on the nonrenewal: first, she contends that she was covered under the statute which guarantees the right of a hearing to a nonrenewed employee if the employee has been employed by the local school district for a continuous period of two (2) years, and second, she argues that the school’s policy manual did not contain a requirement that an employee be employed for two continuous years in order to receive a hearing. For clarity’s sake, we address each contention separately.

Second Continuous Year

¶ 8. We find that Hodgins is clearly incorrect as to her first contention. The provisions at issue here are part of the Education Employment Procedures Law of 2001 (EEPL), which are found in Mississippi Code Annotated sections 37-9-101 through 37-9-113. The EEPL section that describes the protections offered to employees of a school district, Mississippi Code Annotated section 37-9-109 (Rev. 2001), states:

An employee who has received notice under Section 37-9-105, upon written request from the employee received by the district within ten (10) days of receipt of the notice by the employee, shall be entitled to:
(a)Written notice of the specific reasons for nonreemployment, together with a summary of the factual basis therefor, a list of witnesses and a copy of documentary evidence substantiating the reasons intended to be presented at the hearing, which notice shall be given at least fourteen (14) days prior to any hearing; if the district fails to provide this information to the employee, then the recommendation for nonreemployment shall be null and void, and the board shall order the execution of a contract with the employee for an additional period of one (1) year;
(b) An opportunity for a hearing at which to present matters relevant to the reasons given for the proposed non-reemployment, including any reasons alleged by the employee to be the reason for nonreemployment;
(c) Receive a fair and impartial hearing before the board or hearing officer;
(d) Be represented by legal counsel, at his own expense.

The EEPL defines an “employee” as:

(a) Any teacher, principal, superintendent or other professional personnel employed by the local school district for a continuous period of two (2) years with that district and required to have a valid license issued by the State Department of Education as a prerequisite of employment; or
(b) Any teacher, principal, superintendent or other professional personnel who has completed a continuous period of two (2) years of employment in a Mississippi public school district and one (1) full year of employment with the school district of current employment, and who is required to have a valid license issued by the State Department of Education as a prerequisite of employment.

Miss.Code Ann. § 37-9-103 (Rev.2001) (emphasis added).

¶ 9. Hodgins contends that she meets the definition of employee as set forth in the EEPL because she was in her second year of employment with the school district when she was given notice of the nonrenewal. The school district contends that the statute should be interpreted to mean that an employee must complete her second year before the nonrenewal. We agree with the district that the clear meaning of the statute is that an employee must complete a second year of employment before the employee is entitled to the protections afforded “employees” by the EEPL. Otherwise, the use of the word “complete” in section 37-9-103(b) would be devoid of meaning. Under Hodgins’s interpretation, any employee would qualify as long as the employee had completed one year of employment with the school district and was currently in the second year of employment. Such clearly was not the intent of the legislature based on the express language of the statute.

¶ 10. As the chancellor properly found, the EEPL must be read to mean that an employee such as Hodgins must complete two years of employment with the school district before being considered an “employee” for EEPL purposes. Because Hodgins met neither of the definitions in section 37-9-103, she is not entitled to the protections granted to employees in other provisions of the EEPL.

Employee Manual

¶ 11. We turn now to Hodgins’s contention that the school district’s personnel policy created a right for her to have a hearing regarding the nonrenewal.

¶ 12. In 2001, section 37-9-103 of the EEPL was amended and changed to its present form, which is quoted above. Pri- or to 2001, the section read:

As used in Sections 37-9-101 through 37-9-113 the word “employee” shall include any teacher, principal, superintendent elected by a board of trustees and other professional personnel employed by any public school district of this state and required to have a valid license issued by the State Department of Education as a prerequisite of employment.

Miss.Code Ann. § 37-9-103. Therefore, prior to 2001, there was no requirement that an assistant principal work for a school district for two years before gaining the protection of the statute. The personnel policy to which Hodgins refers indicates that it was written in January 1999, and contains no requirement that an assistant principal work for the school district for any period of time before being entitled to. a hearing and other protections. The policy, however, clearly states:

School board policies follow state and federal laws and related regulations and procedures for employment, retention, and dismissal of all personnel. {MS Code 37-9-1 through 75, 37-9-101 through 113, and 37-7-301(p)(w)} Standard 6, Bulletin 172 (1998).

(emphasis added).

¶ 13. Likewise, the termination letter sent to Hodgins stated: “You are not covered by the provisions of the Education Employment Procedures Law of 2001, Mississippi Code Ann. 37-9-101 et seq. Therefore, you are not entitled to a hearing regarding the District’s decision.” Hodgins’s employment contracts stated that they were “subject to all applicable policies, resolutions, rules and regulations of the employer and the laws of the State of Mississippi, copies of which are available from the Superintendent’s office.”

¶ 14. The school district essentially makes two arguments: first, that the personnel policy referenced by Hodgins espouses a clear intent to follow current state law, and second, that any conflict between the statute and the policy must be resolved in favor of the statute. Hodgins contends that the statute merely creates a minimum level of protection and that the district is free to create more stringent protections than current state law. Thus, Hodgins contends that there is no conflict between the .statute, which requires an assistant principal to work for two years before gaining protection under the statute, and the district’s policy, which simply has no threshold requirement before an assistant principal is entitled to a hearing and other administrative protections.

¶ 15. While we agree that the policy manual used by the school is poorly written, we cannot find that it is intended to give greater protection to school employees than is afforded by statute. Nor do we find any indication or evidence that the district’s intention was to do anything other than follow the current version of the statute. First, the policy references the statute, although it first references the pre-amendment version of the statute. Regardless, had Hodgins gone to look up the current version of the statute, she would have found that she would not be considered an “employee” entitled to the protections of the statute until after she had worked for two continuous years for the school district. ■ The current version of the statute was also clearly referenced in the nonrenewal letter sent to Hodgins, and her employment contract states that it is subject to all Mississippi laws.

¶ 16. In support of her contentions, Hodgins cites Bobbitt v. The Orchard, Ltd., 603 So.2d 356 (Miss.1992). In Bobbitt, the Mississippi Supreme Court found that an employer had to follow the procedures outlined in its employment manual rather than dismissing an employee without following any of the procedures in the manual on the ground that the employee was at-will. Id. at 357. Essentially, the specific holding of Bobbitt was that when there are termination procedures outlined in an employment manual, an employer cannot simply dismiss an at-will employee without using the procedures set forth in the manual. Such is not the case before us. Additionally, since Hodgins was employed by a school district, her employment is specifically addressed by the EEPL. Furthermore, the Bobbitt court made it clear that, in Bobbitt, “there [was] nothing in the employment contract to the contrary.” Id. In the present case, however, Hodgins’s employment contract specifically referenced the EEPL, and stated that the contract was subject not only to any personnel policies, but also to the laws of the state of Mississippi. The personnel policy itself manifested an intention to follow statutory law, and referenced the relevant code provisions. Finally, our standard of review necessitates that we give deference to the board’s decision, whereas the Bobbitt court had no administrative agency to which it owed any deference. Bobbitt is of no help to Hodgins.

¶ 17. It is clear that the school district simply neglected to update its personnel policy to conform to a change in the relevant statute, and there is no evidence whatsoever that the district intended to create greater protections than the EEPL when it failed to update its policy. In the absence of any intent to do so and in the presence of evidence indicating the district’s intent to follow current state law, we affirm the board’s finding that Hodgins was not entitled to a hearing and other administrative protections.

2. Notice

¶ 18. Hodgins contends that she “was entitled to automatic renewal of her contract based on the District’s failure to comply with the notice requirements set out in the Education Employment Procedures Law of 2001.” Specifically, Hodgins cites section 37-9-105 (Supp.2006), which requires a school board to provide written notice of nonrenewal to an employee, complete with reasons for the nonrenewal. However, as with section 37-9-109, the requirements promulgated in section 37-9-105 apply only to employees who have worked with the school district for two continuous years. As we have found, Hod-gins has not worked for the school district for two continuous years and was, therefore, not entitled to notice as required in section 37-9-105.

¶ 19. This issue is without merit.

S. Board Minutes

¶ 20. Finally, Hodgins contends that the board erred when it refused to record its vote “to deny [her] a due process hearing.” Hodgins further contends that this refusal “hindered her right to an appeal.” As Hodgins is currently appealing that decision, it is unclear to this Court how the refusal hindered Hodgins’s right to an appeal, and Hodgins does not provide any further explanation of any hindrance she has encountered.

¶ 21. We note at the outset that the board did not actually vote to deny Hod-gins a hearing. After conferring, the board simply stated that it would not hold a hearing because Hodgins was not entitled to one under the statute. The board further stated that since the decision was dictated by statute, the board did not need to vote to deny Hodgins a hearing. Therefore, the board declined to officially record any decision in its minutes.

¶ 22. The record is silent as to why the board felt compelled to refuse to record its decision to deny Hodgins a hearing in its minutes. The school district quotes Mississippi Code Annotated section 37-6-9 (Rev.2001), which states in part:

Minutes shall be kept of all meetings of the school board showing (a) the members present and absent; (b) the date, time and place of the meeting; (c) an accurate recording of any final actions taken at such meeting; (d) a record by individual member of any votes taken at such meeting; and (e) any other information that the school board requests to be reflected in the minutes.

Apparently the board did not view its decision as a “final action,” which would have had to have been recorded in the minutes regardless of whether the board’s decision was mandated by statute. The school district does not elaborate on how the decision to refuse Hodgins a hearing was anything other than a “final action,” which it appears to this Court that it was. Additionally, under subsection (e) above, the board clearly could have recorded its decision simply by requesting that the decision be reflected in its minutes.

¶ 23. In our judgment, the board should have recorded its decision in its minutes. However, Hodgins has offered no showing of prejudice as a result of this error. Although she states that her right to appeal has been hampered, she offers no further indication of how. In the absence of any showing of prejudice to one of Hodgins’s substantial rights, we find the board’s refusal to record its decision to be harmless error. See M.R.C.P. 61. In other words, although we find error, we find no error of such magnitude that warrants granting Hodgins any relief.

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

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

      . Hodgins was in her second year of employment with the school district when she received the notice of nonrenewal.


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

text:
    INDYMAC BANK, F.S.B., Appellant v. James C. YOUNG, Appellee.
    No. 2006-CA-01175-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2007.

      Charles R. Wilbanks, Jeffrey P. Hubbard, Susan Louise Durham, Jackson, attorneys for appellant.
    Greg E. Beard, attorney for appellee.
    Before KING, C.J., CHANDLER and CARLTON, JJ.
   KING, C.J., for the Court.

¶ 1. Indymac Bank appeals the Tishom-ingo County Circuit Court’s denial of its motion to set aside a default judgment. On appeal, Indymac presents several issues that will be consolidated into the following: (1) whether the circuit court erred in finding there was proper jurisdiction to hear the case, (2) whether the circuit court erred in denying the motion to set aside the default judgment, pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure, and (3) whether the judgment is void because the court’s award of damages is not supported by the evidence.

FACTS

¶2. On August 16, 2000, James C. Young borrowed $127,000 from Indymac Bank, F.S.B., and executed a deed of trust in favor of Indymac as security. The deed contained an incorrect legal description of property. The deed actually described another property that Young owned and resulted in the bank placing a lien on the wrong property. On July 17, 2001, Young filed suit against Indymac (Cause No. CV01-0116) and, once Indymac changed the legal description of the property, Young dismissed the suit.

¶ 3. On April 12, 2002, Young filed another suit against Indymac, alleging intentional breach of contract based on Indymac’s failure to correct the deed description in a timely manner. Young argued that this failure violated Mississippi Code Annotated Section 89-5-21 (Supp.2006). He requested $60,000, plus interests, and statutory and punitive damages.

¶ 4. On April 23, 2002, service of process was issued to Kathy Hart, one of Indy-mac’s agents for service of process. Indy-mac failed to answer the complaint and, on May 29, 2002, Young obtained a final default judgment against Indymac in the amount of $60,000, plus $15,000 in attorney’s fees, for a total of $75,000. On October 4, 2004, Indymac filed a motion to set aside the default judgment. On June 15, 2006, the court held a hearing on the motion and denied Indymac’s request.

STANDARD OF REVIEW

¶ 5. This Court reviews motions to set aside default judgments under an abuse of discretion standard. Tatum v. Barrentine, 797 So.2d 223, 227(¶ 15) (Miss.2001). The trial court applies a three-prong balancing test in reviewing a motion to set aside a default judgment, pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure. Stanford v. Parker, 822 So.2d 886, 888(¶ 6) (Miss.2002). Where jurisdictional questions are raised, however, the standard of review is de novo. Trustmark Nat’l Bank v. Johnson, 865 So.2d 1148, 1150(¶ 8) (Miss.2004).

ANALYSIS

(1) Whether the circuit court erred in finding there was proper jurisdiction to hear the case.

¶ 6. Young filed his complaint against Indymac in the Tishomingo County Circuit Court, as an action for damages due to an intentional breach of contract. Indymac argues that the circuit court lacked subject matter jurisdiction to hear the case because Young’s cause of action involved a cloud of title upon real estate. Indymac asserts that Young should have properly filed an action for reformation of the deed of trust in order to clear the cloud of title, an action limited to the jurisdiction of the chancery court.

¶ 7. Mississippi circuit courts are courts of general subject matter jurisdiction while chancery courts maintain special or limited jurisdiction. Hall v. Corbin, 478 So.2d 253, 255 (Miss.1985). According to Article 6, Section 156 of the Mississippi Constitution, circuit courts maintain original jurisdiction for all civil and criminal matters in this state in which the Mississippi Constitution has not already vested into some other court. Hogrobrooks v. Progressive Direct, 858 So.2d 913, 916-17(¶ 10) (Miss.Ct.App.2003).

¶ 8. The Mississippi Constitution establishes the jurisdictional limitations of the chancery court as a court of equity. Article 6, Section 159 of the Mississippi Constitution provides as follows:

The Chancery Court shall have full jurisdiction of the following matters and cases, viz.:
(a) All matters in equity;
(b) Divorce and alimony;
(c) Matters testamentary and of administration;
(d) Minor’s business;
(e) Cases of idiocy, lunacy, and persons of unsound mind;
(f) All cases of which the said court had jurisdiction under the laws in force when this Constitution is put in operation.

Miss. Const., art. 6, § 159. The chancery court is given additional jurisdiction over the following types of cases pertaining to real property:

And in addition to the jurisdiction heretofore exercised by the chancery court in suits to try title and to cancel deeds and other clouds upon title to real estate, it shall have jurisdiction in such cases to decree possession, and to displace possession; to decree rents and compensation for improvements and taxes; and in all cases where said court heretofore exercised jurisdiction, auxiliary to courts of common law, it may exercise such jurisdiction to grant the relief sought, although the legal remedy may not have been exhausted or the legal title established by a suit at law.

Miss. Const., art. 6, § 160. These two provisions define the parameters of the chancery court’s jurisdiction.

¶ 9. Young filed his suit as a intentional breach of contract claim. In ERA Franchise Sys. v. Mathis, 931 So.2d 1278, 1283(¶ 14) (Miss.2006), the supreme court held that the circuit court is in a better position to retain jurisdiction over breach of contract issues than the chancery court. The court acknowledged that recent case law favored allowing equitable claims to be heard before a circuit court when the claims are connected to a contractual relationship or other claims tied to questions of law. Id. The circuit court maintained the proper subject matter jurisdiction to hear Young’s intentional breach of contract claims.

¶ 10. Even if this Court held that Young’s claims did not correctly allege the elements of an intentional breach of contract claim, the trial courts determine whether a claim is legal or equitable by considering the substance, and not the form, of the claims. Copiah Medical Assocs. v. Mississippi Baptist Health Sys., 898 So.2d 656, 661(¶ 16) (Miss.2005). Trial courts resolve questions of whether a complaint is legal or equitable in nature by allowing the circuit courts to maintain jurisdiction over these cases. Id.

(2)Whether the trial court erred in denying the motion to set aside final default judgment under Rule 60(b) of the Mississippi Rules of Civil Procedure.

¶ 11. Rule 60 provides limited grounds for relief from judgments or orders. Under Rule 60(b), a trial court may grant relief based on a sufficient showing of fraud, mistake or other justifiable reason. Williams v. Kelly, 872 So.2d 783, 785(¶ 8) (Miss.Ct.App.2004). Rule 60(b) reads, in pertinent part, as follows:

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time; and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken.

¶ 12. Indymac filed its motion to set aside judgment under Rule 60(b)(4), alleging the judgment was void. Indymac filed the motion two years and four months after the entry of the default judgment. The trial court denied Indymac’s request, finding Indymac’s motion was not filed within a reasonable time period. The court declined to set aside the judgment that, at the time of the hearing on June 15, 2006, had been in place for four years and one month.

¶ 13. What constitutes a reasonable time period is determined on a ease-by-case basis. Jenkins v. Jenkins, 757 So.2d 339, 344(¶ 11) (Miss.Ct.App.2000) (citing Briney v. United States Fid. & Guar. Co., 714 So.2d 962, 966-67 (Miss.1998)). The court must take into account whether the opposing party has been prejudiced by the delay in seeking relief and whether there is good reason for the defaulting party’s failure to take appropriate actions sooner. Id.

¶ 14. Federal practice guidelines provide guidance in defining the limitations of Rule 60(b). Overbey v. Murray, 569 So.2d 303, 305 (Miss.1990). If the court finds that a judgment is void, according to federal authority, there is no effective time limit because no amount of time or delay may cure a void judgment. Id. at 306 (citing 11 C. Wright & Miller, Federal Practice and Procedure § 2862 (1973)); In re Whitney-Forbes, Inc., 770 F.2d 692 (7th Cir.1985); Triad Energy Corp. v. McNell, 110 F.R.D. 382 (S.D.N.Y.1986). In Over-bey, the court restated the federal rule in saying that “a judgement is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if acted in a manner inconsistent with due process of law.” Overbey, 569 So.2d at 306.

¶ 15. This Court holds that the final default judgment against Indymac is not void. As previously discussed, the Tish-omingo County Circuit Court had jurisdiction over the subject matter and the parties to this action, and was thus entitled to render a judgment in this case. This Court does not find any evidence that the trial court acted in any manner inconsistent with due process.

¶ 16. The trial court did not abuse its discretion in finding Indymac failed to file its motion within a reasonable time period, as required by Rule 60(b)(4). Finding no error in the trial court’s decision to deny the motion to set aside judgment, we affirm as to that issue.

(3) Whether the judgment is void because the court’s award of damages is not supported by the evidence.

¶ 17. The trial court awarded Young a judgment in the sum of $60,000, plus reasonable attorney’s fees in the amount of $15,000, for a total of $75,000, plus interest from May 29, 2002, the date of the judgment, until the judgment was paid in full. The circuit court did not conduct an evidentiary hearing to establish the amount of damages that should have been awarded to Young.

¶ 18. Indymac argues that the court’s judgment is void because the court did not hold an evidentiary hearing regarding the award of damages and the award is unsupported by any evidence in the record. In-dymac also argues that the court awarded an unreasonable and arbitrary amount of attorney’s fees.

¶ 19. The trial court found that Rule 60(b)(4) required it to first determine if the default judgment was void before it could address the merits of Indymac’s claims regarding the award of damages. The court reasoned that since the default judgment was valid, the issues regarding damages were precluded from the court’s consideration. While the court acknowledged that the damages award probably exceeded the amount of damages Young would be entitled to if an evidentiary hearing was held, the court refused to disturb the finality of the four-year old default judgment.

¶ 20. The trial court was incorrect in finding it was precluded from addressing Indymac’s arguments regarding the award of damages. In Rich ex rel. Brown v. Nevels, 578 So.2d 609, 617 (Miss.1991), the court held that “damages awards must be supported by evidence, and such evidence must be reflected in the record if it is to be affirmed on appeal.” The record is completely void of any evidence to support the damages awards or attorney’s fees. In the absence of supporting evidence, the actual award of damages is void.

¶ 21. This Court affirms the trial court’s denial of the motion to set aside the default judgment. However, the trial court’s award of damages and attorney’s fees is vacated and remanded to the trial court for an evidentiary hearing to determine the appropriate amount of damages and attorney’s fees, if any, that should be awarded.

¶ 22. THE JUDGMENT OF THE TISHOMINGO COUNTY CIRCUIT COURT DENYING THE MOTION TO SET ASIDE DEFAULT JUDGMENT IS AFFIRMED. THE DAMAGES AWARD IS VACATED AND REMANDED FOR AN EVIDENTIARY HEARING. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The record does not actually indicate the duration of time between the time Young filed the suit and when Indymac corrected the deed description.


author: CARLSON, Justice,

text:
    Billy GIVENS v. STATE of Mississippi.
    No. 2006-KA-00203-SCT.
    Supreme Court of Mississippi.
    Aug. 30, 2007.
    Rehearing Denied Nov. 8, 2007.

      Office of Indigent Appeals by George T. Holmes, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SMITH, C.J., CARLSON and RANDOLPH, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. Billy Givens was indicted, tried and found guilty by a Humphreys County jury of murder and sentenced by the trial judge to life imprisonment. Aggrieved by the judgment of conviction and sentence, Givens appealed to this Court. Finding no error, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On January 7, 2005, the Humphreys County Grand Jury handed down an indictment charging Billy Givens with deliberate design murder in the killing of Robert Cooper by hitting him in the head with a brick. On November 2, 2005, Billy Givens was tried before a jury in the Circuit Court of Humphreys County, Judge Jannie M. Lewis, presiding.

¶ 3. Belzoni Police Chief Mickey Fox-worth testified that in the late-night hours of October 9, 2004, or in the early-morning hours of October 10, 2004, a call was received at the Belzoni Police Department that some drug activity was occurring on Lincoln and Judy Thurmond, behind Smith Funeral Home. Foxworth testified that he reported to that area and, upon arriving, spotted Givens and Cooper, also known as “Black Pepper,” together. Fox-worth explained that after approaching Givens and Cooper, he searched both men, and found two “nickel bags” of marijuana on Givens. He also found a .22 pistol, which Cooper claimed belonged to him, under the porch of a house behind the funeral home. Shortly afterward, Fox-worth left the scene and proceeded to patrol the downtown area of Belzoni. Approximately ten to fifteen minutes later, Foxworth returned to the area behind the funeral home to check on his officers. At that time, Foxworth spotted Givens standing on Cain Street looking at the ground. Foxworth testified he circled the block and then spotted Cooper lying on the ground on the side of the road, but Givens was gone. Realizing that Cooper was dead, Foxworth sent out a dispatch for officers to report back to the scene.

¶ 4. Belzoni police officer Cruron Gray-son testified that he responded to a call from dispatch that drug activity was occurring at an abandoned house in the rear of Smith Funeral Home. Grayson stated that he gave a citation to Givens for the possession of marijuana, and Givens walked off, throwing down the ticket. Grayson also reported to the second call sent out by Foxworth stating that someone was dead on Cain Street. Grayson was present when Annie Hampton and Sammy Foman, two eyewitnesses, were questioned. Gray-son testified that, based on the statements of Hampton and Foman, Givens became a suspect.

¶ 5. Humphreys County Deputy Sheriff Kenny Terry testified that he arrived at the abandoned house behind Smith Funeral Home after the first report from dispatch. Terry saw Givens and Cooper, whom he recognized, with officers from the Belzoni Police Department. After Givens received the citation, Terry saw Givens start punching a wall and yelling that he was “set up.” Deputy Terry also responded to the second dispatch by Foxworth, but did not participate in the investigation.

¶ 6. Lieutenant James White with the Belzoni Police Department (White was later promoted to Assistant Chief of Police) testified that he was called to the abandoned house during the first dispatch by Foxworth. Lt. White informed Foxworth that Cooper was a confidential informant for the Belzoni Police Department, but was not working that night. White also testified that he observed Givens being issued the citation for possession of marijuana and Givens got “very furious, got very mad, he threw the ticket on the ground.... I just observed him getting seriously mad.” White was also at the scene for a second time that night to observe Cooper’s body and to collect bricks with blood on them. The next day, White had the opportunity to interview Hampton and Foman and take their statements, since they said they had witnessed Cooper’s death.

¶ 7. At trial, Hampton was the first eyewitness to take the stand. She testified that she had known Givens all of his life and had known Cooper for as long as she had lived in Belzoni. Hampton testified that on the night of October 9, or early-morning hours of October 10, she was sitting on the porch of an abandoned house on Cain Street with Foman when Cooper rode up to them on his bike. According to Hampton, while Cooper was talking with Hampton and Foman, Givens came from behind and struck Cooper in the head with a brick. Hampton explained that Givens repeatedly hit Cooper in the head with a brick. Hampton further testified that Givens told her and Foman that “y’all don’t see nothing,” whereupon Hampton and Fo-man ran to Irene Brown’s house across the street. Hampton also testified that she had glaucoma and could not see very well.

¶ 8. The other eyewitness, Foman, testified that he knew both Givens and Cooper and was sitting on the porch of an abandoned house on Cain Street with Hampton when Givens killed Cooper. Foman stated that Givens came up from behind Cooper, while Cooper was speaking with Foman and Hampton, and hit Cooper in the head with a brick. Foman likewise stated that Cooper fell off his bike and Givens kept picking up bricks and hitting Cooper in the head. Foman also testified that Givens stated, “y’all see anything, you say I didn’t.” At that point, Foman and Hampton started running to Irene Brown’s house. Later that night, Foman gave a statement to White. On cross examination, Foman was asked what Givens was wearing that night and Foman replied, “I can’t hardly see, it was dark. I don’t know what he had on.”

¶ 9. The final witness called by the State was Dr. Steven Hayne, a pathologist. Hayne testified that Cooper’s “[clause of death was cranial cerebral trauma. That is, this individual had received multiple blows to the head, to the right side of the head as well as the facial area, including the forehead and about the right eye, as well as the nose.” Hayne determined that the manner of death was homicide. Hayne also testified that Cooper did not have any defensive wounds to indicate that he fought back or tried to protect himself.

¶ 10. After the State rested its case-in-chief, Givens was fully advised by his counsel and the trial judge of his right to testify or not testify. The record shows that Givens made an informed decision not to testify, and the defense rested. After being instructed by the trial court as to the applicable law, which included instructions for both murder and manslaughter, the jury commenced its deliberations. After forty-five minutes, the jury returned a verdict, finding Givens guilty of murder. Judge Lewis thereafter sentenced Givens to a term of life imprisonment in the custody of the Mississippi Department of Corrections. It is from this judgment of conviction and sentence that Givens, through his court-appointed trial counsel, appealed to us.

¶ 11. Pursuant to Lindsey v. State, 939 So.2d 743 (Miss.2005), the Humphreys County public defender who had represented Givens at trial certified to this Court that he had scoured the record and found no arguable issues for appeal. In addition, Givens’s trial counsel verified that he had informed Givens of his right to file a pro se brief. On appeal, Givens filed a pro se brief asserting five issues including: (1) ineffective assistance of counsel; (2) violation of the due process clause of the Fourteenth Amendment; (3) perjury by all of the witnesses; (4) misidentification; and (5) prosecutorial misconduct. Consistent with Lindsey, this Court instructed the public defender to file a supplemental brief addressing the issues raised in Givens’s pro se brief. Due to Givens’s ineffective assistance of counsel claim, the public defender filed a motion to withdraw as counsel, which motion was granted by this Court. We then appointed the Mississippi Office of Indigent Appeals (OIA) to represent Givens, and that office timely filed a supplemental brief addressing all the issues raised by Givens in his pro se brief. The supplemental brief also raised two additional issues: (1) whether improper character evidence was introduced; and (2) whether the verdict of guilty of murder, as opposed to manslaughter, was supported by the evidence. The State likewise filed a supplemental brief in response to the OIA’s supplemental brief.

¶ 12. In addressing these various issues, we will restate and reorder them for clarity in discussion.

DISCUSSION

I. INEFFECTIVE ASSISTANCE OF COUNSEL.

II. VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

¶ 13. We will address these two issues together. Givens claims that his trial counsel rendered ineffective assistance by: (1) failing to object to the eyewitness testimony of Hampton and Foman; (2) failing to question the local authorities as to why a line-up was not performed; and (3) “undermining]” Givens’s line of defense in closing arguments. Because effective assistance of counsel is secured by the Sixth and Fourteenth Amendments to the United States Constitution, issues I and II have been combined for complete analysis. Washington v. Strickland, 693 F.2d 1243, 1250 (5th Cir.1982); Berry v. State, 345 So.2d 613, 615 (Miss.1977); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

¶ 14. The test for ineffective assistance of counsel is well-settled:

“The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Branch v. State, 961 So.2d 659, 666 (2007). Therefore, for Givens to prevail on his claim for ineffective assistance of counsel, Givens must demonstrate that counsel’s performance was deficient and that the deficiency prejudiced the defense of the case. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

This Court looks at the totality of circumstances to determine whether counsel’s efforts were both deficient and prejudicial. “Judicial scrutiny of counsel’s performance [is] highly deferential.” There is a strong but rebuttable presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Only where it is reasonably probable that but for the attorney’s errors, the outcome of the trial would have been different, will we find that counsel’s performance was deficient.

Walker v. State, 863 So.2d 1, 22 (Miss.2003) (citing Russell v. State, 849 So.2d 95, 122 (Miss.2003) (quoting Holly v. State, 716 So.2d 979, 989 (Miss.1998))).

¶ 15. As stated supra, there is a rebuttable presumption that counsel’s performance was effective. Id. “[CJounsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall[s] within the ambit of trial strategy.” Cole v. State, 666 So.2d 767, 777 (Miss.1995) (citing Murray v. Maggio, 736 F.2d 279 (5th Cir.1984)). We find nothing in the record affirmatively showing constitutional ineffectiveness. Furthermore, Givens has failed to show prejudice. Thus, Givens has failed to meet his Strickland burden and we find these two issues to be without merit.

III. PERJURY BY ALL OF THE WITNESSES

¶ 16. Givens next claims that the State knowingly presented perjured testimony from all seven witnesses. In addition, Givens submitted a diagram of the crime scene in an effort to contradict Foxwoi-th’s testimony.'

¶ 17. Addressing the diagram first, it is not a part of the record on the appeal and we therefore need not consider it. Saucier v. State, 328 So.2d 355, 357 (Miss.1976) (“A reviewing court can act only on the basis of the contents of the official record....”).

¶ 18. Regarding Givens’s assertion that the State knowingly presented perjured testimony from all of its witnesses, Givens’s court-appointed appellate counsel stated in its brief that it considers Givens’s recitation of facts under this issue to create more of a claim of conflicting evidence or conflicting views of the evidence, or weight and sufficiency of the evidence rather than perjured testimony. Givens offered no evidence at trial to demonstrate that the State offered perjured testimony. Instead, Givens makes only assertions that the seven witnesses were lying, based on statements made in open court. However, mere assertions are not sufficient to 'support a claim of pex-jury. Manning v. State, 884 So.2d 717, 726 (Miss.2004). This issue is thus without merit.

IV. MISIDENTIFICATION

¶ 19. Next, Givens asserts that his conviction is based on misidentification by Hampton and Foman. Essentially, Givens gives a detailed analysis as to the five factors outlined in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), which a trial coui-t should consider in determining whether an in-court identification has been impermissibly tainted by law enfoi’cement investigatoiy identification procedures. These five factors include: (1) the opportunity of the witness to view the criminal at the time of the ci’ime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness at the time of confrontation; and (5) the length of time between the cidme and the confrontation. Id. Since the trial judge was in a position to adequately assess these five factoi-s and “[w]e will only distort) the order of the trial court where there is an absence of substantial credible evidence supporting it[,]” we find this issue also to be meritless. There is substantial credible evidence to support the identification of Givens as Cooper’s killer. Outerbridge v. State, 947 So.2d 279, 282 (Miss.2006). Both Hampton and Foman had an opportunity to watch Givens repeatedly hit Cooper in the head with multiple bricks. While Foman admitted that it was dark outside and there was inadequate lighting, which caused him to be unable to describe Givens’s clothing that night, Foman had known Givens his entire life. In addition, during the trial, Hampton testified she had glaucoma, but she also had known Givens his entire life. Both witnesses were certain that Givens was who man who killed Cooper. Neither witness wavered from his or her original statement identifying Givens. The jury was properly instructed on how it was to consider the identification testimony. The jury, by its verdict, obviously believed that the identification testimony of Hampton and Foman, when considered with all the other evidence, was credible.

Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject, the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into findings of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augmented by the composite reasoning of twelve individuals sworn to return a true verdict. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution.

Jones v. State, 920 So.2d 465, 472-73 (Miss.2006) (citing Jackson v. State, 614 So.2d 965, 972 (Miss.1993)). The trial judge instructed the jury via instruction number six concerning the identification evidence, as follows:

The Court instructs the Jury that in reaching your verdict you are to consider all of the evidence concerning the entire case and the circumstances surrounding the crime. One of the issues in this case is the identification of Billy Givens as the perpetrator of the crime. As with each element of the crime charged, the State has the burden of proving identity beyond a reasonable doubt, and before you convict Billy Givens you must be satisfied beyond a reasonable doubt of the accuracy of the identification of Billy Givens. If, after considering all of the evidence concerning the crime and the witness’ identification of Billy Givens as the person who committed the crime, you are not convinced beyond a reasonable doubt that he is the person who committed the crime, then you must find him not guilty.
Identification testimony is an expression of belief or impression by the witness. You must judge its value and reliability from the totality of the circumstances surrounding the crime and the subsequent identification. In appraising the identification testimony of a witness, you should consider the following:
1) Did the witness have an adequate opportunity to observe the offender?
2) Did the witness observe the offender with an adequate degree of attention?
3) Did the witness provide an accurate description of the offender after the crime?
4) How certain is the witness of the identification?
5) How much time passed between the crime and the identification?
If after examining all of the testimony and the evidence, you have a reasonable doubt that Billy Givens was the person who committed the crime, then you must find Billy Givens not guilty.

Thus, taking the totality of the record before us, we are unable to find that the trial judge abused her discretion by allowing the in-court identification of Givens by Hampton and Foman. Outerbridge, 947 So.2d at 282 (citing Johnston v. State, 567 So.2d 237, 238 (Miss.1990)). This issue therefore is without merit.

V. PROSECUTORIAL MISCONDUCT

¶ 20. While in his pro se brief, Givens asserts the issue of prosecutorial misconduct, Givens does not further address the issue. Givens’s appellate counsel states: “[Givens’s claim] could be assumed to be connected to the claim of presenting alleged perjured testimony. Otherwise, the undersigned counsel, upon scouring the record, cannot determine any matter to address for the court under this claimed issue.” When a party on appeal assigns an error without any citation to authority, this Court will deem this failure to cite any authority as a procedural bar. Turner v. State, 721 So.2d 642, 649 (Miss.1998) (citing McClain v. State, 625 So.2d 774, 781 (Miss.1993)). Procedural bar notwithstanding, because we have found the perjury issue discussed in issue III, supra, to be without merit, this issue is likewise lacking of any merit.

VI IMPROPER CHARACTER EVIDENCE

¶21. Givens’s appointed appellate counsel raised the issue of whether improper character evidence was introduced. Appellate counsel contends that Givens’s trial counsel could have objected to the introduction of evidence of other criminal activity involving Givens pursuant to Miss. R. Evid. 404(b). Particularly, appellate counsel states that potentially objectionable evidence at trial consisted of: (1) the initial call to the police about drug activity occurring behind the Smith Funeral Home and drugs being found in the possession of Givens, and (2) that the police were familiar with Givens because of past juvenile matters.

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

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

The comments under Rule 404(b) further provide that the “exceptions listed in Subsection (b) are not exclusive.” Miss. R. Evid. 404(b) Cmt. This Court stated in Palmer v. State, 939 So.2d 792, 795-96 (Miss.2006),

The general rule is that evidence of a crime, other than the one for which the accused is being tried, is not admissible. Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995) (citing Duplantis v. State, 644 So.2d 1235, 1246 (Miss.1994)). However, there are exceptions to this general rule as provided by Miss. R. Evid. 404(b)....
This Court has consistently held the admission of evidence of unrelated crimes for the purpose of showing the accused acted in conformity therewith is reversible error, but admission for the above reasons [motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident] is permissible. Ballenger, 667 So.2d at 1256.
Evidence of other crimes or bad acts is also admissible in order to tell the complete story so as not to confuse the jury. In Brown v. State, 483 So.2d 328, 330 (Miss.1986), this Court said the State has a “legitimate interest in telling a rational and coherent story of what happened.” Where substantially necessary to present to the jury “the complete story of the crime,” evidence of testimony may be given even though it may reveal or suggest other crimes. Sim mons v. State, 813 So.2d 710, 716 (Miss.2002); Ballenger, 667 So.2d at 1257.

¶23. In this case, Givens’s appointed trial counsel made no objection to this evidence at trial. Based on the record before us, we can readily understand why defense counsel would not object. Certainly the testimony from law enforcement officials as to their being alerted to drug activity in the area was proper Rule 404(b) evidence because it told the jury “the whole story” as to why Belzoni police officers and a Humphreys County deputy sheriff went to the scene, where they happened upon Givens. We recently stated that to hold certain evidence to be inadmissible solely because it is evidence of a prior bad act “would be to hamstring the State in the presentation of the complete story” to the jury concerning the crime for which the defendant is on trial. Jones v. State, 920 So.2d 465, 475 (Miss.2006).

¶ 24. However, once the Rule 404(b) criteria have been met, “this otherwise admissible evidence must still survive the required balancing test pursuant to the provisions of Miss. R. Evid. 403.” Id. As we further stated in Jones:

Accordingly, just as with any evidence otherwise admissible under any other evidentiary rule, evidence which is deemed admissible pursuant to Rule 404(b) may still be excluded if its probative value is substantially outweighed by the danger of its resultant unfair prejudice. This Court has consistently recognized the broad sweeping effect of Rule 403:
To be sure, evidence admissible under Rule 404(b) is also subject to the prejudice test of Rule 403; that is, even though the Circuit Court considered the evidence at issue admissible under Rule 404(b), it was still required by Rule 403 to consider whether its probative value on the issues of motive, opportunity and intent was substantially outweighed by the danger of unfair prejudice. In this sense Rule 403 is an ultimate filter through which all otherwise admissible evidence must pass. Watts, 635 So.2d at 1368 (quoting Jenkins v. State, 507 So.2d 89, 93 (Miss.1987)). Consequently, “[t]his rule necessarily vests in the Circuit Court a certain amount of discretion.” Hart v. State, 637 So.2d 1329, 1336 (Miss.1994) (quoting Stokes v. State, 548 So.2d 118, 125 (Miss.1989)).

Id. at 475 (quoting Hoops v. State, 681 So.2d 521, 530-31 (Miss.1996)). When considering this “other crime” evidence concerning drug activity occurring behind the Smith Funeral Home and drugs being found in the possession of Givens, as well as the fact that the police were familiar with Givens because of past juvenile matters, we are convinced that the probative value of this relevant evidence was not substantially outweighed by danger of unfair prejudice, and thus the trial judge did not abuse her discretion in allowing it. Keeping in mind that Givens’s trial counsel made no objection to this evidence, we agree with Givens’s appellate counsel “that there was no error nor ineffectiveness of counsel under this topic to raise for appellate review.” We thus find this issue to have no merit.

VII. VERDICT SUPPORTED BY THE WEIGHT OF THE EVIDENCE

¶ 25. The other issue raised by appellate counsel is that the verdict of murder was not supported by the evidence and if the jury was justified in finding Givens guilty of any crime, it should have found him guilty of manslaughter. Appellate counsel admits sufficient evidence was presented at trial to show that Givens acted in the heat of passion, taking his acts out of the realm of murder. Specifically, appellate counsel states that the record supports the argument that Givens thought Cooper had set him up. Investigating officers for the State testified that Givens received a citation for his possession of marijuana and began yelling that he was set up and hitting a wall.

¶ 26. The standard of review for determining whether a jury verdict is against the overwhelming weight of the evidence is well-settled. We will not order a new trial “unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.” McLendon v. State, 945 So.2d 372, 385 (Miss.2006) (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)); see also Bush v. State, 895 So.2d 836, 844 (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

¶ 27. To support his argument that the jury’s verdict of murder is not supported by the weight of the evidence, and at best, the evidence would support a guilty verdict for manslaughter, appellate counsel cites several cases, including Tait v. State, 669 So.2d 85 (Miss.1996); Dedeaux v. State, 630 So.2d 30 (Miss.1993); and, Clemons v. State, 473 So.2d 943 (Miss.1985). Both Dedeaux and Clemons relied, in part, on this Court’s prior decision in Wells v. State, 305 So.2d 333 (Miss.1974). However, Tait, Dedeaux, Clemons, and Wells are all clearly distinguishable from today’s case. We will briefly discuss these cases in chronological order, based on the dates of the decisions.

¶ 28. In Wells, there were no eye witnesses to the killing, but the defendant stated that-he confronted an intoxicated man at a “juke joint” about cursing his (the defendant’s) wife, whereupon the man hollered, “Come on, I am going to get you,” and then grabbed the defendant by his throat. The defendant reacted by pulling his knife and putting the knife to the aggressor’s throat “to scare him,” but, according, to the defendant, he accidentally cut the man’s throat, killing him. On appeal, this Court found that the murder conviction was not supported by the evidence, but that the evidence did support a manslaughter conviction; therefore, the case was remanded for resentencing for the crime of manslaughter. Wells, 305 So.2d at 337, 340.

¶ 29. Clemons involved another “juke joint” killing where there was considerable consumption of alcohol. The defendant was found guilty of murder; however, on appeal, this Court stated that there were so many contradictory versions of what occurred on the night in question, it was virtually impossible for the jury to reasonably “extrapolate enough competent facts from the many versions of the story to sufficiently support the finding of murder.” Clemons, 473 So.2d at 945. Therefore, consistent with Wells and other cited eases, this Court found that “the evidence has established guilt of [manslaughter] beyond a reasonable doubt,” and the case was remanded for resentencing for the crime of manslaughter. Id.

. ¶ 30. The setting in Dedeaux involved yet another “juke joint” killing where a married woman’s lover killed the woman’s highly intoxicated husband. This Court found that while the intoxicated husband was most likely the aggressor, the confrontation between the defendant and his girlfriend’s husband “was arguably initiated by [the defendant].” Dedeaux, 630 So.2d at 31. In due course, several shots were fired and the intoxicated husband was killed. The defendant was convicted of murder and on appeal, this Court found that the case was “weak” as to murder; therefore, consistent with Wells and Clemons, this Court reversed and remanded for resentencing for the crime of heat-of-passion manslaughter. Id. at 33.

¶ 31. Finally, in Tait, the defendant and his friend had been playing in the yard with a pistol for most of the day, when the defendant put the pistol to his friend’s head and the pistol fired, killing the defendant’s friend. The defendant immediately fell to the ground and began crying. When a police officer responded to the scene, he entered an apartment, finding one male with a serious head wound, and the other male (the defendant), holding his Mend’s head, “sobbing and saying, T killed him. Oh my God, I killed him. I shot him.’ ” Tait, 669 So.2d 85. Relying on Wells, Clemons, and Dedeaux, this Court found that the evidence did not support a conviction for depraved heart murder or for heat-of-passion manslaughter, but that the evidence did support a conviction for manslaughter by culpable negligence; therefore, the case was remanded for re-sentencing for the “lesser offense of culpable negligence manslaughter.” Id. at 91.

¶ 32. All these cases are readily distinguishable from today’s case since Wells, Clemons, and Dedeaux involved emotionally-charged environments brought about by a combination of alcohol consumption and jealousy, and Tait involved the unfortunate killing of a friend by a person who became immediately distraught over what he had done. In today’s case, although Givens may have been upset with Cooper for being allegedly “set up” for the marihuana possession charge, eyewitness testimony from Hampton and Foman reveals that while Cooper was sitting on his bicycle talking to them, Givens came up from behind and repeatedly hit Cooper in the head with a brick. According to Foman, even after Cooper fell off his bicycle, Givens kept picking up bricks and hitting Cooper in the head. According to Hampton, after the incident, Givens told Hampton and Fo-man “y’all don’t see nothing.” According to Foman, Givens told them, “y’all see anything, you say I didn’t.”

¶ 33. Viewing the evidence in the light most favorable to the verdict, we cannot say that the verdict of guilty of depraved heart murder was so contrary to the overwhelming weight of the evidence that to allow it to stand would be an unconscionable injustice. Further, this Court is unable to say that the evidence against Givens was insufficient to uphold his murder conviction. In Mullins v. State, 493 So.2d 971, 974 (Miss.1986), we defined “heat of passion” as follows:

In the criminal law, a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Id. (citing Black’s Law Dictionary, 650 (5th Ed.1979)).

¶ 34. When considering the evidence in the light most favorable to the State, a rational juror could conclude that Givens acted not out of the heat of passion, but with deliberate design to kill Cooper. The evidence showed that Givens repeatedly hit Cooper with multiple bricks; that he stopped during the attack to tell Hampton and Foman that it would be best for them if “they had not seen anything;” that Givens struck Cooper from behind; and that Cooper had no defensive wounds on his hands. While Givens was possibly angry because he thought that the drug bust was a set-up by Cooper, Givens did not act in a “violent and uncontrollable rage.... ” Mullins, 493 So.2d at 974. Several officers testified that Givens had walked away yelling. Givens had plenty of time to contemplate hitting Cooper; and thus, a jury could find that Givens acted with deliberate design. The jury had all the evidence before it and made an informed decision based on the facts before it. Thus, this issue lacks merit.

CONCLUSION

¶ 35. For the reasons stated, the Hum-phreys County Circuit Court’s judgment of conviction of murder and sentence of life imprisonment entered against Billy Givens for the murder of Robert Cooper is affirmed.

¶ 36. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

      . Judy Thurmond is most commonly referred to throughout the transcript as Cain Street.

      . Throughout the record, Sammy Foman is also referred to as Sammy Foreman and Sammy Forman.