author: BRIDGES, P.J.,

text:
    James Stanley FOSTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01470-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2005.
    Rehearing Denied Feb. 14, 2006.

      Thomas H. Comer, Booneville, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before BRIDGES, P.J., MYERS and CHANDLER, JJ.
   BRIDGES, P.J.,

for the Court.

¶ 1. James Stanley Foster’s appeal follows his conviction in the Prentiss County Circuit Court. A jury found Foster guilty of possession of 73.7 grams of marijuana with intent to distribute. Due to Foster’s proximity to a public park, his conviction carried an enhanced sentence pursuant to Miss.Code Ann. § 41-29-142(l)(Rev.2001). Additionally, the circuit court sentenced Foster as a habitual offender under Miss. Code Ann. § 99-19-81(Rev.2000).

¶ 2. After Foster filed an unsuccessful motion for a new trial or judgment notwithstanding the verdict, the circuit court sentenced Foster to a forty-year term in the custody of the Mississippi Department of Corrections without the benefit of probation or parole and gave him a $60,000 fine. Aggrieved, Foster appeals and raises seven issues:

I. THE TRIAL COURT ERRED IN ALLOWING THE USE OVER [FOSTER’S] OBJECTION OF EVIDENCE NOT DISCLOSED UNDER URCCCP 9.04.
II. THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION FOR DIRECTED VERDICT ON ENHANCED POSSESSION WITH INTENT TO DISTRIBUTE CHARGE BECAUSE THE STATE FAILED TO PROVE THE PARK WAS A PUBLIC PARK.
III. THE TRIAL COURT ERRED IN ALLOWING THE INTRODUCTION OVER [FOSTER’S] OBJECTION CONCERNING MEASUREMENTS FROM THE ALLEGED CRIME TO THE ALLEGED PARK.
IV. THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION FOR MISTRIAL AFTER THE PROSECUTION REPEATEDLY REFERRED TO CERTAIN EVIDENCE AS MARIJUANA WHEN IT HADN’T BEEN ESTABLISHED WHAT THE SUBSTANCE WAS.
V. THE TRIAL COURT ERRED IN OVERRULING [FOSTER’S] MOTION TO SUPPRESS THE DEFENDANT’S STATEMENT.
VI. THE STATE FAILED TO PROVE ITS CASE BEYOND A REASONABLE DOUBT.
VII. THE SENTENCE IMPOSED WAS UNCONSTITUTIONAL.

Finding no error, we affirm.

FACTS

¶ 3. On November 25, 2003, Sergeant Byron Parker of the Booneville, Mississippi Police Department observed Foster driving forty-six miles-per-hour in a thirty mile-per-hour zone. Sergeant Parker attempted to stop Foster but Foster did not stop his car. Foster kept driving until he got to his house. Sergeant Parker followed Foster into the driveway of Foster’s home. Foster got out of his car. Sergeant Parker arrested Foster for speeding and driving without a license.

¶ 4. When Sergeant Parker attempted to put Foster in handcuffs, Foster escaped and fled. Foster’s escape ended abruptly when Foster tripped over a curb and fell. Sergeant Parker caught Foster and successfully handcuffed Foster. When Sergeant Parker searched Foster, Sergeant Parker found a large amount of marijuana in Foster’s pocket.

I. THE TRIAL COURT ERRED IN ALLOWING THE USE OVER [FOSTER’S] OBJECTION OF EVIDENCE NOT DISCLOSED UNDER URCCCP 9.04.

¶ 5. First, Foster claims the State failed to provide him with (1) “documents and statements of prosecution witnesses concerning the arrest;” (2) “discovery in connection with the physical evidence [the State] claimed to have found in the inventory search;” and (3) “witness reports concerning measurements” until noon of the day before trial. Foster reasons that the State failed to follow Rule 9.04(A) of the Uniform Rules of Circuit and County Court. Rule 9.04(A) says “the prosecution must disclose to each defendant ... and permit the defendant ... to inspect, copy, test, and photograph upon written request ” certain evidence listed in the rule.

¶ 6. Applying the language of the rule, Foster was not entitled to discovery. The record contains no mention of Foster’s written discovery request to the State. The State is only obligated to provide discovery upon a defendant’s written request. Id. Foster never gave the State a written discovery request, so the State was never obligated to tender discovery. The trial judge correctly decided to overrule Foster’s objection to the State’s use of the evidence mentioned above. We affirm the trial judge’s decision.

II. THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION FOR DIRECTED VERDICT ON ENHANCED POSSESSION WITH INTENT TO DISTRIBUTE CHARGE BECAUSE THE STATE FAILED TO PROVE THE PARK WAS A PUBLIC PARK.

¶7. In this issue, Foster attacks his sentence enhancement based on his proximity to a public park. According to Foster, the circuit court should have granted his motion for directed verdict because the State presented insufficient evidence that the park was a “public park.” Foster claims that the State presented no evidence from anyone with personal knowledge that the park was a “public park.” Before addressing the merits of Foster’s claim, we address the State’s assertion that Foster failed to preserve this issue for appeal.

A. Did Foster waive this issue?

¶ 8. The State claims that Foster waived his appeal of the motion for a directed verdict, made at the close of the State’s case-in-chief, when Foster testified on his own behalf. When a defendant proceeds with his case after the State rests and the court overrules the defendant’s motion for a directed verdict, the defendant waives the appeal of the directed verdict. Holland v. State, 656 So.2d 1192, 1197 (Miss.1995).

¶ 9. This is not an issue of first impression. In Davis v. State, 866 So.2d 1107(¶ 19) (Miss.Ct.App.2003), the State claimed that the appellant was procedurally barred from arguing insufficiency of evidence because he failed to file a written motion for a judgment notwithstanding the verdict and failed to request a peremptory instruction. Id This Court noted that if an appellant files a motion for directed verdict at the conclusion of the State’s evidence, and the trial court overrules that motion, the appellant waives that issue on appeal if he proceeds to introduce evidence on his own behalf. Id However, an appellant may preserve the issue if he renews his motion for directed verdict at the conclusion of all the evidence. Id (citing Harris v. State, 413 So.2d 1016, 1018 (Miss.1982)). In Davis, the appellant renewed his motion for directed verdict at the conclusion of all the evidence. Therefore, this Court held that the appellant in Davis preserved the issue of insufficiency of the evidence. Id

¶ 10. In Hodges v. State, 743 So.2d 319(¶ 37) (Miss.1999), the defendant moved for a directed verdict at the close of the prosecution’s case-in-chief, but the circuit court denied his motion. Afterwards, the defendant proceeded to put on his own defense. Id Consequently, the Mississippi Supreme Court held that the defendant was “procedurally barred from seeking review of the legal sufficiency of the State’s evidence at the time his motion for directed verdict was considered (i.e., at the close of the prosecution’s case in chief).” Id (citing Whitehurst v. State, 540 So.2d 1319, 1327 (Miss.1989)). The supreme court went on to hold that the defendant, by presenting evidence, did not waive his right to challenge the sufficiency of the evidence “in the event of an adverse jury verdict.” Hodges, 743 So.2d at (¶ 37).

¶ 11. In Hodges, the criminal defendant renewed his motion for directed verdict at the close of all the evidence and filed a motion for judgment notwithstanding the verdict. Hodges, 743 So.2d at (¶ 38). The supreme court held that the defendant preserved the issue of the sufficiency of all of the evidence, not just the evidence that supported the prosecution’s case. Id

¶ 12. In the present case, Foster waived his ability to appeal the denial of his motion for directed verdict made at the end of the State’s case-in-chief. However, Foster renewed his objection at the close of all evidence. Accordingly, Foster’s subsequent motion for directed verdict is presently before this Court.- Id

B. Did Foster object with sufficient specificity?

¶ 13. Next the State claims that Foster’s motions for directed verdict, both at the close of the State’s case-in-chief and at the close of all evidence, were too general to merit review on appeal. “A motion for a directed verdict on the grounds that the State has failed to make out a prima facie case must state specifically wherein the State has failed to make out a prima facie case.” Davis, 866 So.2d at (¶ 21). “Moreover, motions for a directed verdict must be specific and not general in nature. Id In the absence of such specificity, the trial court will not be put in error for overruling same.” Id

¶ 14. We have resolved that Foster waived review of his motion for directed verdict made at the end of the State’s case, when he testified on his own behalf. We are not concerned with the specificity of that objection. However, Foster renewed his objection at the close of all the evidence. At that time, Foster’s counsel stated, “[cjomes now the defendant James Stanley Foster and moves the court to direct a verdict on behalf of the defendant and find him not guilty on the basis that the State has failed to prove their case beyond a reasonable doubt.” The circuit court overruled that motion as well.

¶ 15. After the circuit court overruled Foster’s motion, the court addressed the topic of the jury instructions. During that discussion, Foster’s counsel objected to the language of instruction P-2. Foster’s counsel stated:

[TJhe specific objection I have is to Paragraph 1 in that on the basis I feel that the State has failed to prove, make a prima facie case that he had possession with intent to distribute and also on the basis that they did not prove by competent evidence it was a public park.

At that point, the following exchange took place:

The Court: Counsel, if you are renewing your motion for a directed verdict because of the failure of the State to prove that it was in fact a public park, I will overrule that. And in the consideration of these instructions I ran by you in not allowing you to renew any other motions you might have for a directed verdict or otherwise. I’ll let you do that now before we go on with the consideration of the instructions in this case. I think that is the sense of your motion.
Mr. Comer: Yes, sir. I thought I had made a motion at the end.
The Court: You did at the conclusion of the State’s case, but now that all the evidence is in, you certainly may restate any motion you wish.
Mr. Comer: Okay, just for clarity and to be careful. Comes now the Defendant at the end of all the testimony in the case and moves the court to direct a verdict for the Defendant and find him not guilty on the basis that the State has failed by competent evidence to prove all the elements required of them as charged in the indictment.
The Court: The motion will be overruled.

Pursuant to this exchange, Foster claims: When the full context of this exchange is considered, it is clear that defense counsel stated the basis of the motion with sufficient clarity for the trial court to know exactly what elements the defense claimed the State failed to prove and that the court ruled on the motion on the basis of those specifics. Thus, the issue was preserved.

¶ 16. Foster objected to instruction P-2 and argued that the State failed to prove Foster possessed marijuana with intent to distribute. Foster also objected to P-2 and argued that the State failed to prove the park was a public park. Still, Foster’s claim in this issue concerns the circuit court’s decision to overrule his motion for directed verdict, rather than the trial court’s decision to instruct the jury according to instruction P-2. That is, Foster appeals the circuit court’s decision to deny his motion for directed verdict, rather than the circuit court’s decision regarding jury instructions.

¶ 17. In Davis, the State claimed that the appellant was procedurally barred from appealing the denial of his directed verdict made at the close of the evidence when the appellant did not specifically plead insufficiency of the evidence for certain relevant issues. Davis, 866 So.2d at (¶ 20). This -Court held that the appellant in Davis did not raise his appellate arguments in the trial court. Id. at (¶24). Accordingly, this Court was not obligated to review appellate arguments which were not presented in the trial court because “[a] trial judge cannot be put in error on a matter which was not presented to him for decision.”- Id. (citing Crenshaw v. State, 520 So.2d 131, 134-35 (Miss.1988)).

¶ 18. Foster’s motions for directed verdict stated that the prosecution failed to “prove their case beyond a reasonable doubt” and “failed by competent evidence to prove all the element’s required of them as charged in the indictment.” Foster’s motion was too general to support appellate review. While Foster did elaborate on the specific element during his objection to the jury instruction, when the trial judge gave Foster an opportunity to renew his motion for directed verdict, Foster did not argue that point. “In the absence of such specificity, the trial court will not be put in error for overruling same.” Davis, 866 So.2d at (¶ 21).

¶ 19. Even if this Court were inclined to find that Foster’s motion for directed verdict was sufficiently specific, we would not be inclined to reverse the circuit court’s decision to deny Foster’s motion for directed verdict. For the sake of argument, we turn to the substance of Foster’s issue on appeal.

C. Did the State present sufficient evidence that the park was a “public” park?

¶ 20. As mentioned, we consider Foster’s contention for the sake of argument. Foster claims the circuit court erred when it overruled his motion for directed verdict. In reviewing Foster’s contention, we are mindful of our standard of review. When a defendant files a motion for directed verdict, “the trial court must consider all of the evidence-not just the evidence which supports the State’s case-in the light most favorable to the State.” Winters v. State, 473 So.2d 452, 459 (Miss.1985) (citations omitted). Further, “once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that given the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty.” Id. We review .the circuit court’s ruling on the last occasion when the sufficiency of the evidence was challenged before the trial court. Hodges, 743 So.2d at (¶ 36). Foster last challenged the sufficiency of the evidence during his final motion for directed verdict.

¶ 21. Here, Foster’s claim actually involves two separate contentions. While Foster argues that the State presented insufficient evidence that the park was a public park, the basis of that claim is that the testimony the State presented is insufficient because no one with personal knowledge that the park was a public park presented such evidence. Accordingly, it is the lack of personal knowledge on which Foster bases his argument. Truly, “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.” M.R.E. 602.

¶22. So, Foster’s claim of insufficient evidence actually depends on our resolution of an entirely separate contention. That is, Foster argues that the circuit court should have excluded certain evidence. Further, Foster argues that, upon proper exclusion of that evidence, there is insufficient evidence that the park was a public park.

¶ 23. Section 41-29-142 of the Mississippi Code provides for enhanced sentencing where a defendant possesses marijuana within a specified distance of a public park. Miss.Code Ann. § 41-29-142 (Rev. 2001). Foster argues that the State offered no documentary evidence or testimony from anyone with personal knowledge that the park was a public park. Foster acknowledges that the State attempted to establish this element through the testimony of Officer Jerry Barnes.

¶ 24. Officer Jerry Barnes is a narcotics investigator for the Booneville Police Department. When asked whether the park was a city park, Officer Barnes responded “as far as I know.” Officer Barnes also testified that the area is used by Northeast Mississippi Community College for sports, but he did not know whether Northeast owned the property. According to Foster, Officer Barnes’s testimony does not establish the level of personal knowledge necessary to prove this element beyond a reasonable doubt.

¶ 25. The State says there was a sufficient amount of testimony from which a reasonable, hypothetical juror could conclude beyond a reasonable doubt that the park was a public park. The State points to the following: (1) Officer Barnes testified that he met Foster’s car in front of the Booneville City Park; (2) Exhibit S-3 reflects that the measurements were taken at the “Booneville City Park;” (3) Officer Barnes testified that “as far as I know. [t]o my knowledge it is” a city park; (4) Officer Barnes testified that the Booneville City Park is maintained by city employees with city equipment; (5) Sergeant Parker, when asked how he knew the park was a public park, testified “[tjhat’s where I grew up. That’s where I played ball. Everybody knows that’s the city park;” (6) Sergeant Parker testified that he saw the city maintaining the park and that he knew it was a city park; (7) When asked whether he agreed that the park was a public park, Foster answered “probably is,” and (8) Further, when asked whether he had any doubt in his mind that the park was a public park, Foster testified, “[n]o, I ain’t going to doubt it.”

¶ 26. There was a wealth of testimony that indicated that the park was a city park and was maintained by the city. Viewed in the light most favorable to the State, a reasonable hypothetical juror would be justified in concluding that a city park would be available for public use, especially in light of the testimony that children played baseball there and the city maintained the property with city equipment. Examining the evidence in harmony with Jury Instruction C-l, which told the jury that they “are also permitted to draw such reasonable inference from the evidence as seems justified in light of [their] own experience,” the jury had a sufficient basis to conclude that the park was a public park. Further, Foster’s complaint regarding an alleged lack of personal knowledge is a claim that the circuit court erred in admitting evidence, while the subject of this issue is the denial of Foster’s motion for directed verdict. Suffice it to say, the circuit court did not err in denying Foster’s motion for directed verdict.

III. THE TRIAL COURT ERRED IN ALLOWING THE INTRODUCTION OVER [FOSTER’S] OBJECTION CONCERNING MEASUREMENTS FROM THE ALLEGED CRIME TO THE ALLEGED PARK.

¶ 27. Foster’s third issue also concerns the sentence enhancement due to his proximity to the park. However, Foster argues three points under this issue.

A. Sufficient Evidence of a Public Park?

¶ 28. First, Foster claims that the trial court erred in allowing testimony regarding the measurements between the park and other locations without first establishing that the park was a public park. Foster’s argument depends on our finding a lack of sufficient evidence that the park was a public park. We addressed that topic in the last issue, and we will not address it again here.

B. Proper Enhancement Measurement Points?

¶29. Second, Foster claims that Sergeant Parker’s testimony establishes that the State failed to take the relevant enhancement measurements from the proper point. Foster’s claim stems from his initial evasion of capture. According to Foster, the State should.have measured from the point where he was apprehended, rather than his driveway — the initial point of contact. Foster argues that because there was no testimony that he had marijuana in his possession at the locations from which measurements were taken, the measurements that were taken were not relevant. Put differently, Foster suggests that the State should not have taken the enhancement measurements from the spot where Sergeant Parker stopped Foster at the apartment complex, but should have measured from the spot where Sergeant Parker captured him after he fled on foot.

¶ 30. If this Court follows Foster’s logic, we fear our decision would encourage criminals to evade law enforcement officers. Imagine the following scenario: A police officer either questions an individual on foot or orders a driver to stop his car. That individual knows he is in possession of contraband and knows he is in proximity to a location that would enhance his sentence, so he evades capture. As long as that individual can escape the boundary of the enhancement distance, he can avoid an enhanced sentence, based on the precedent that would follow this decision — if we agreed with Foster. . However, we disagree.

¶31. From the time Sergeant Parker tried to pull him over, Foster was in Sergeant Parker’s sight. Foster was not out of Sergeant Parker’s sight long enough to acquire the marijuana. It is impossible that Foster could have gotten the marijuana at some point between Sergeant Parker’s order to pull over and the point where, Foster exited his automobile. There was no testimony that Foster acquired the marijuana after he exited his car and fled on foot. Had Foster not evaded capture in his driveway, Sergeant Parker would have discovered the marijuana there. Had Foster pulled over when ordered. Sergeant Parker may or may not have discovered the marijuana at that point. Either way, Foster should not be allowed to alter the measurement point by evading capture. This Court will not sanction evasion.

C. Hearsay?

¶ 32. Prior to Foster’s trial, Sergeant Parker, Officer Barnes, and Officer Austin worked together to measure the enhancement distances. Sergeant Parker indicated the locations of the initial point of contact and the subsequent arrest. Officer Barnes measured the distances and recorded the measurements. Officer Austin used Officer Barnes’s recorded measurements to type a report, which became Exhibit S-3. Officers Barnes and Austin each signed S-3.

¶ 33. At trial, the. State asked Sergeant Parker about the measurements. Sergeant Parker testified that he could not remember the exact distances without referring to notes. The State handed S-3 to Sergeant Parker arid asked him if S-3 refreshed his recollection of the distances.. Sergeant Parker read the distances from S-3 out loud. Sergeant Parker stated that the distance from Foster’s driveway, the point at which Sergeant Parker initially captured Foster, to the park baseball field was 524 feet, the distance from the point at which he captured Foster to one of the baseball field dugouts was 1,228 feet, and the distance from the point at which he captured Foster to the community center was 1,261 feet.

¶ 34. Sergeant Parker also testified that he did not prepare S-3. At that point, counsel for Foster objected and argued that Sergeant Parker’s testimony was hearsay. The circuit court overruled that objection and allowed Sergeant Parker’s testimony. Foster did not cross-examine Sergeant Parker regarding his testimony as to the enhancement distances.

¶ 35. On appeal, Foster claims that the circuit court committed a reversible error when it improperly permitted the State to introduce hearsay evidence through Sergeant Parker. The relevance and admission or exclusion of evidence is a matter of the trial court’s discretion. Shearer v. State, 423 So.2d 824, 827 (Miss.1982). This Court will only reverse a trial court’s decision to admit or exclude evidence if the trial court’s decision prejudices a party’s case. Id. So, was Sergeant Parker’s testimony hearsay?

¶ 36. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). According to Foster, Sergeant Parker’s testimony was hearsay because: (1) Sergeant Parker read from S-3 and S-3 indicated measurements that Officer Barnes took; (2) Officers Barnes and Austin made S-3 out-of-court, and; (3) the State presented information from S-3 through Sergeant Parker to prove the truth of the matter asserted (the distances). We agree.

¶ 37. Still, the State argues that Sergeant Parker’s testimony falls within the exceptions to the hearsay rule. Pursuant to our rules of evidence, certain hearsay testimony is “not excluded by the hearsay rule, even though the declarant is available as a witness.” M.R.E. 803. The State relies on the “past recollection recorded” exception. That exception appears at Rule 803(5) of the Mississippi Rules of Evidence and reads as follows:

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly [is an exception to the hearsay rule]. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

¶ 38. Here, the past recollection recorded exception does not apply. Though there was evidence that Sergeant Parker had knowledge of the contact point and the arrest point, there is no evidence that Sergeant Parker once had knowledge of the relevant measurements. There is no evidence that Sergeant Parker “made or adopted” S-3 when the distances were fresh in his memory. Likewise, there is no evidence that S-3 correctly reflected Sergeant Parker’s knowledge of the distances. Consequently, Sergeant Parker’s testimony does meet the criteria of the past recollection recorded exception. The trial court abused its discretion when it permitted the State to introduce evidence forbidden by the Mississippi Rules of Evidence.

¶ 39. However, this Court will only reverse a trial court’s decision to admit or exclude evidence if the trial court’s decision prejudices a party’s case. Shearer, 423 So.2d at 827. We cannot say that the trial court’s decision prejudiced Foster’s case. Even if we remanded the matter for a new trial, the fact remains that Officer Barnes also testified to the distances and the State introduced S-3 through Officer Barnes. Foster does not claim that the circuit court erred when it permitted Officer Barnes’s testimony. As such, Foster was not prejudiced and no reversible error results. Accordingly, we affirm.

IV. THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION FOR MISTRIAL AFTER THE PROSECUTION REPEATEDLY REFERRED TO CERTAIN EVIDENCE AS MARIJUANA WHEN IT HADN’T BEEN ESTABLISHED WHAT THE SUBSTANCE WAS.

¶ 40. In this issue, Foster claims that the circuit court erred when it overruled his motion for a mistrial. “Whether to declare a mistrial is committed to the sound discretion of the trial court.” Brent v. State, 632 So.2d 936, 941 (Miss.1994). We will not overturn a trial judge’s decision to overrule a motion for mistrial unless the trial judge committed an abuse of discretion. Bass v. State, 597 So.2d 182, 191 (Miss.1992).

¶ 41. Foster argues that the trial judge should have granted a mistrial because witnesses for the State indicated that the substance found on Foster was marijuana before the State’s expert established that the substance was actually marijuana. We find no error from the trial judge’s decision to deny Foster’s motion for mistrial.

¶ 42. Alicia Waldrop, the State’s forensic analyst, testified she “determined the substance to be marijuana, which is a Schedule I, in the amount of 73.7 grams.” Additionally, the prosecutor repeatedly asked his witnesses to refer to the marijuana as “alleged marijuana” until he put his witness from the crime lab on the stand. As such, it was clear that the State did not try to use its witnesses to improperly convince the jury that the substance was, in fact, marijuana. Furthermore, jury instruction C-l instructed the jury that “[y]ou are to disregard all evidence which was excluded by the Court from consideration during the course of the trial.” When a trial court instructs a jury, it is presumed the jurors follow the trial court’s direction. Moore v. State, 787 So.2d 1282(¶ 30) (Miss.2001). In light of the circumstances, we cannot say that the trial judge- abused his discretion. Thus, we affirm the trial judge’s decision.

V. THE TRIAL COURT ERRED IN OVERRULING [FOSTER’S] MOTION TO SUPPRESS THE DEFENDANT’S STATEMENT.

¶ 43. Foster gave a statement. Foster claims the circuit court erred when it allowed the State to submit his confession into evidence. “For a confession to be admissible, it must have been given voluntarily and not given as a result of promises, threats or inducements.” Martin v. State, 871 So.2d 693(¶ 29) (Miss.2004). “In determining whether a statement is voluntary, the trial judge must first determine whether the accused, prior to the confession, understood the content and substance of the Miranda warning and the nature of the charges of which he was accused.” Id.

¶ 44. Foster submits that he did not understand the content and substance of the Miranda warnings and the nature of the charges against him. Further, Foster argues that the State induced his statement because Officer Austin made him believe he would receive leniency if Foster identified his dealer. Foster proposes that, as a result, the circuit court erred when it allowed his statement into evidence.

¶ 45. “Usually, á confession must be voluntary and not the result of promises, threats, or inducements to be deemed admissible.” Granger v. State, 853 So.2d 830(¶11) (Miss.Ct.App.2003). “The test in such cases is whether the inducement is of a nature calculated under the circumstances to induce a confession irrespective of its truth or falsity.” Id. “It is the prosecution’s burden to prove beyond a reasonable doubt that the confession was voluntary.” Id. “The prosecution meets this burden by presenting testimony from an officer or other person having knowledge of the facts, who states that the confession was made voluntarily without threats, coercion, or offer of reward.” Id. This Court conducts a limited review when determining if a confession is voluntary. Id. at (¶ 12). “The trial judge sits as finder of fact when he or she determines the voluntariness, and this Court will not overturn the trial judge’s decision unless manifestly wrong.” Id.

¶ 46. Foster initiated the contact with Officer Barnes. Foster also signed a document by which he waived his Miranda rights. Foster testified that no one promised him anything for his statement. Neither Officer Barnes nor Officer Austin made any offers or promises to Foster. In Granger, the supreme court held that the State made a prima facie case of voluntariness by demonstrating that the defendant initiated contact and received multiple Miranda warnings. Granger, 853 So.2d at (¶ 13). We follow the precedent set forth in Granger and affirm the decision of the circuit court.

VI. THE STATE FAILED TO PROVE ITS CASE BEYOND A REASONABLE DOUBT.

¶ 47. Foster’s sixth contention is an attack on the sufficiency of the evidence. Foster cites Jones v. State, 857 So.2d 740 (Miss.2003) as the basis for his claim that the State must prove all elements beyond a reasonable doubt. Foster claims that the State failed to prove that the park was a public park. As stated previously, we have already addressed the merits of this contention and found it lacking. We will not repeat our analysis here. Foster also claims that the State failed to prove the requisite distances for sentence enhancement under Section 41-29-142. We disposed of that contention in issue three, and there in no need to restate our analysis.

¶ 48. Still, Foster also claims that the State failed to prove, beyond a reasonable doubt, that Foster intended to distribute marijuana. Foster notes that Officer Barnes admitted the marijuana could have been for Foster’s own use. Foster also points out his testimony that he got one ounce of marijuana from Michael Cox, and that he acquired it for his personal use and did not intend to sell it.

¶ 49. When reviewing the sufficiency of the evidence, “the trial court must consider all of the evidenee-not just the evidence which supports the State’s case-in the light most favorable to the State.” Winters, 473 So.2d at 459. Further, “once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that given the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty.” Id.

¶ 50. Sergeant Parker apprehended Foster with approximately two and one-half ounces of marijuana. The marijuana was stored in bags within a bag. Foster had measuring scales in his possession. Foster testified that he was holding the marijuana and would deliver it when Michael Cox needed some to sell. Viewing the evidence in the light most favorable to the State, the record contains sufficient evidence from which a reasonable, hypothetical juror could convict Foster for intent to distribute marijuana. Accordingly, we affirm.

VII. THE SENTENCE IMPOSED WAS UNCONSTITUTIONAL.

¶ 51. Foster was convicted under Section 41-29-139(a)(l) of the Mississippi Code. That statute makes it “unlawful for any person knowingly or intentionally ... [t]o sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance.” Miss.Code Ann. § 41-29-139(a)(l) (Rev. 2001). The circuit court sentenced Foster under three statutes, applied in harmony.

¶ 52. First, according to Section 41-29-142(1) of the Mississippi Code, anyone convicted of intent to sell a controlled substance within the relevant distances of a public park “may be punished by a term of imprisonment or a fine, or both, of up to twice that authorized by Section 41-29-139(b).” Miss.Code Ann. § 41-29-142(1) (Rev.2000).

¶ 53. Pursuant to Section 41-29-139(b)(2), anyone “who violates subsection (a) of this section with an amount less than one (1) kilogram but more than thirty (30) grams of marihuana ... may be imprisoned for not more than twenty (20) years or fined not more than Thirty Thousand Dollars ($30,000.00), or both.” Miss.Code Ann. § 41-29-139(b)(2) (Rev.2001). Foster was convicted of possession of 73;7 grams of marijuana with intent to sell within the requisite distances of Section 41-29-142(1). So, by application of Sections 41 — 29—139(b)(2) and 41-29-142(1), the circuit court could sentence Foster for up to forty years imprisonment and/or $60,000.

¶ 54. Finally, Foster was convicted as a habitual offender pursuant to Section 99-19-81 of the Mississippi Code. According to that statute:

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 and who shall have been sentenced to separate terms of one (1) year or more in any state ... institution ... shall be sentenced to the maximum term of imprisonment prescribed for such felony and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss.Code Ann. § 99-19-81 (Rev.2000).

¶ 55. Thus, the circuit court was obligated by the “shall” provision of Section 99-19-81 to sentence Foster to the maximum term of imprisonment allowable under Sections 41-29-139(b)(2) and 41-29-142(1). Accordingly, by statute, the circuit court had to sentence Foster to forty years imprisonment without the possibility of parole and/or $60,000. That is exactly what the circuit court did. “[A] trial court will not be held in error or held to have abused discretion if the sentence imposed is within the limits fixed by statute.” Johnson v. State, 461 So.2d 1288, 1292 (Miss.1984).

¶ 56. THE JUDGMENT OF THE PRENTISS COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF MORE THAN ONE OUNCE BUT LESS THAN 1 KILOGRAM OF MARIJUANA, A SCHEDULE I CONTROLLED SUBSTANCE, WITH INTENT TO SELL WITHIN 1,500 FEET OF A BUILDING OR OUTBUILDING OF A PUBLIC PARK, TRANSFER, OR DISTRIBUTE IS AFFIRMED AND SENTENCE AS A HABITUAL OFFENDER TO FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $60,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PRENTISS COUNTY.

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


source: Caselaw Access Project

license: Public Domain

text:
    Andres JOHNSON and Linda Johnson, Appellants v. BAY CITY SOUTH MORTGAGE COMPANY, Robert Blake and WMC Mortgage Corp., Appellees.
    No. 2004-CA-00490-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2005.
    Rehearing Denied Jan. 17, 2006.

      C. Brent Jones, attorney for appellants.
    Candy Burnette, David Aaron Norris, William H. Leech, Jackson, V.T. Valias, attorneys for appellees.
    Before BRIDGES, P.J., MYERS, and CHANDLER, JJ.
   BRIDGES, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On November 22, 1999, Andres and Linda Johnson sued Bay City South Mortgage Corporation (Bay City), Robert Blake, and WMC Mortgage Corporation (WMC) in the First Judicial District of the Hinds County Circuit Court. By their complaint, the Johnsons asserted various claims of fraud predicated on an alleged misrepresentation in the form of a promise given by Robert Blake regarding the refinancing of the Johnsons’ home. Additionally, the Johnsons’ complaint alleged that Blake and Bay City were agents of WMC. On September 6, 2002, WMC filed a motion for summary judgment. On February 10, 2003, the circuit court granted WMC’s motion for summary judgment.

¶ 2. On January 5-6, 2004, the circuit court conducted a trial on the Johnsons’ remaining claims against Blake and Bay City. After the Johnsons’ case-in-chief, Blake and Bay City presented an ore tenus motion for directed verdict. The circuit court granted Blake’s motion and entered judgment accordingly. Aggrieved, the Johnsons appeal and raise three issues for review, listed verbatim:

A. Whether the trial court erred in granting a directed verdict in favor of Appellees Robert Blake and Bay City South Mortgage Company at the trial of this matter.
B. Whether the trial court erred in granting summary judgment in favor of Appellee WMC Mortgage Corporation after concluding that no agency relationship existed between WMC Mortgage Corporation and Bay City South Mortgage Company as a matter of law.
C. Whether the trial court abused its discretion in excluding from evidence at trial the deposition testimony of Diane Senechal, the corporate representative of WMC Mortgage Corporation.

Finding no error, we affirm.

FACTS

¶ 3. During February of 1998, Andres Johnson sought to refinance the mortgage on the home located in Jackson, Mississippi. Andres took his request to Bay City Mortgage. Robert Blake, the owner and operator of Bay City, assisted Andres. According to the Johnsons’ version of events, they wanted a fixed-rate mortgage, rather than an adjustable-rate mortgage. Blake informed the Johnsons that they were not eligible for a fixed-rate mortgage at the time, but after two years, they could refinance again at a lower fixed rate, provided they did nothing to damage their credit. The Johnsons applied for the loans and Blake, through Bay City, reviewed the loan rates and options of many lenders and settled on a recommendation to the John-sons that they borrow their primary adjustable-rate loan through WMC.

¶ 4. After approval, but shortly before closing, the Johnsons approached Blake and requested a written guarantee that Blake could make or find them a lower fixed-rate loan at the end of the two-year period. Blake responded and wrote a letter to the Johnsons. By that letter, Blake stated:

[t]his is my written guarantee that 24 months from the time you close I will refinance your mortgage down to a lower rate fixed PROVIDED: you have made all your Mortgage payments on time as well as all other installment and revolving debt. Also, there can be no charge-offs or judgements [sic].

¶ 5. The Johnsons closed their loans in February of 1998. They acquired one thirty-year adjustable-rate loan for $43,200 with an initial interest rate of 10.25%, fixed for the first two years. Additionally, they acquired a second ten-year loan for $10,800, with a fixed interest rate of 13.99%.

¶ 6. After the Johnsons made twenty-one payments on their mortgage, Andres contacted Blake concerning his desire to refinance again, but at a lower rate. From this point, the Johnsons version of events differs from Blake’s version. Andres testified that he met with Blake. Further, Andres testified that, during that meeting, Blake told him that he would have to have 15% of the mortgage paid down before Blake would even consider refinancing, since it would cost $6,000 to refinance the mortgage.

¶ 7. In contrast, Blake testified that Andres called him, but did not meet with him. Blake also testified that he told Andres that Andres could obtain a refinanced mortgage at a lower fixed rate if Andres complied with the provisions of Blake’s letter. Further, Blake testified that refinancing would have cost approximately $500, instead of $6,000.

¶ 8. In November of 1999, the Johnsons stopped making their mortgage payments to WMC and filed their complaint. At trial, Andres testified that “[Blake] was speaking as a mouthpiece from my point of view for WMC, so I didn’t have to pay nobody no more money when I found out I was defrauded.” In August of 2000, WMC foreclosed on the Johnsons’ home. As a result, the Johnsons initiated the present action.

¶ 9. As mentioned, the circuit court granted a directed verdict for Blake and Bay City and granted summary judgment for WMC. The Johnsons appeal and claim the circuit court erred in both decisions. Additionally, the Johnsons claim the circuit court improperly excluded evidence at trial. We address their claims in turn.

ANALYSIS

A. Whether the trial court erred in granting a directed verdict in favor of Appellees Robert Blake and Bay City South Mortgage Company at the trial of this matter.

¶ 10. The Johnsons sued Blake and Bay City under various allegations of fraud. Various allegations notwithstanding, those allegations all centered on the notion that Blake and Bay City engaged in fraud to induce the Johnsons to procure the refinanced mortgages. As mentioned, the circuit court disposed of the Johnsons’ fraud claims when it' granted Blake and Bay City’s motion for directed verdict.

¶ 11. In their first issue, the Johnsons claim the circuit court erred when it granted Blake and Bay City’s motion for directed verdict. The decision to grant a motion for directed verdict pursuant to Rule 50 of the Mississippi Rules of Civil Procedure is a question of law. Fox v. Smith, 594 So.2d 596, 603 (Miss.1992). When a party makes a motion for directed verdict, the circuit court must consider all of the evidence in the light most favorable to the nonmoving party. Id. In considering the evidence and all reasonable inferences, the circuit court must determine whether a reasonable juror could find for the non-moving party. Id. A directed verdict is not proper if questions of fact are raised in the proof at trial. Id. “It is fundamental in our jurisprudence that questions of fact are for a jury; questions of law are for the court.” Id.

¶ 12. When reviewing a circuit court’s decision regarding the sufficiency of the evidence, we must examine all of the evidence, not just evidence supporting the non-movant’s case, in the light most favorable to the non-moving party. Harrison v. McMillan, 828 So.2d 756(¶ 22) (Miss.2002). We are authorized to affirm if the evidence is such that reasonable and fair-minded jurors could not have found Blake and Bay City liable for fraud. See Edwards v. State, 797 So.2d 1049(¶ 14) (Miss.Ct.App.2001).

¶ 13. To demonstrate a prima facie case of fraud, the Johnsons must demonstrate, by clear and convincing evidence, that Blake and Bay City made (1) a representation (2) that is false (3) and material (4) that Blake and Bay City knew was false or was ignorant of the truth (5) combined with the Blake and Bay City’s intent that the Johnsons act on the representation in a manner reasonably contemplated (6) combined with the Johnsons’ ignorance of the statement’s falsity (7) and the John-sons’ reliance on the statement as true (8) with a right to rely on the statement, and (9) the Johnsons’ proximate injury as a consequence. Southeastern Med. Supply, Inc. v. Boyles, Moak, and Brickell Ins., Inc., 822 So.2d 323(¶ 39) (Miss.Ct.App.2002) (citations omitted).

¶ 14. Clear and convincing evidence is:

that weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.

Travelhost, Inc. v. Blandford, 68 F.3d 958, 960 (5th Cir.1995) (citations omitted). Clear and convincing evidence is such a high standard that even the overwhelming weight of the evidence does not rise to the same level. In Interest of C.B., 574 So.2d 1369, 1375 (Miss.1990).

¶ 15. Clearly, a promise to obtain a refinanced mortgage two years into the future is a promissory statement. As a matter of law, fraud cannot be predicated on promissory statements. Salitan v. Horn, 212 Miss. 794, 55 So.2d 444, 446 (Miss.1951). However, fraud can be predicated on a promissory statement where the promise is made with the present undisclosed intention not to perform the promise. Kidd v. Kidd, 210 Miss. 465, 49 So.2d 824, 827 (Miss.1951).

¶ 16. According to the Johnsons, Blake had no intention to act upon his guarantee to refinance their loan as a fixed-rate mortgage. However, even in the light most favorable to the Johnsons, the Johnsons presented no evidence that Blake promised to obtain a lower fixed-rate mortgage but never intended to fulfill that promise. The evidence demonstrates that Blake made a conditional promise because the Johnsons’ credit record disqualified their eligibility for the fixed-rate mortgage at the time they refinanced.

¶ 17. By that condition precedent, the Johnsons had to make timely mortgage payments on their existing loan for twenty-four consecutive months. According to Blake, that condition was necessary so that when the Johnsons prepared to refinance, their credit would be sufficient to qualify for a lower fixed-rate mortgage. The Johnsons violated that condition when they failed to make payments after their twenty-first payment. Blake could not acquire the fixed-rate mortgage the Johnsons sought because the Johnsons failed to make their last three mortgage payments and damaged their credit record. Blake did promise to help the Johnsons refinance if the Johnsons kept their adjustable-rate mortgage payments current and improved their credit record. The condition would ensure that the Johnsons would be eligible for a fixed-rate mortgage. What is more, the Johnsons claim Blake did not intend to perform according to his promise, but the letter itself contains a promise and guarantee that Blake would obtain a lower fixed-rate loan for the Johnsons. The circuit court correctly granted Blake’s motion for directed verdict. We affirm the circuit court’s decision.

B. Whether the trial court erred in granting summary judgment in favor of Appellee WMC Mortgage Corporation after concluding that no agency relationship existed between WMC Mortgage Corporation and Bay City South Mortgage Company as a matter of law.

¶ 18. Blake, the sole proprietor of Bay City, is a mortgage broker. Blake did not actually finance the Johnsons’ refinanced adjusted-rate mortgage. WMC financed the Johnsons’ adjusted-rate mortgage. The Johnsons alleged that Blake acted as WMC’s agent. Consequently, the Johnsons sued WMC as well. As mentioned, WMC filed a motion for summary judgment and the circuit court granted that motion on February 11, 2003. On appeal, the Johnsons claim the circuit court erred when it granted WMC’s motion for summary judgment.

¶ 19. The Johnsons filed their first notice of appeal on February 6, 2004. Their notice of appeal states that the Johnsons “appeal to the Supreme Court of Mississippi against BAY CITY SOUTH MORTGAGE COMPANY and ROBERT BLAKE from the Judgment of Directed Verdict entered in this case on January 12, 2004.” The Johnsons’ notice of appeal contains no mention of WMC or summary judgment in WMC’s favor. However, the Johnsons filed a second notice of appeal on May 27, 2004. In their second notice of appeal, the Johnsons included WMC as a party. The second notice of appeal, unlike the first, did reference WMC’s successful motion for summary judgment.

¶ 20. An appellant must file a notice of appeal within thirty days after the date of entry of the judgment appealed from. M.R.A.P. 4(a). The circuit court granted WMC’s motion for summary judgment on February 11, 2003. The Johnsons filed their first notice of appeal on February 6, 2004, and their second notice of appeal on May 27, 2004. Both notices of appeal, as they apply to WMC, are untimely. “An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules 4 or 5.” M.R.A.P. 2(a)(1). Accordingly, we dismiss the Johnsons’ appeal, as it applies to WMC.

C. Whether the trial court abused its discretion in excluding from evidence at trial the deposition testimony of Diane Senechal, the corporate representative of WMC Mortgage Corporation.

¶ 21. At trial, the Johnsons attempted to introduce portions of the deposition of Diane Senechal, a management representative of WMC Mortgage Corporation. Paraphrasing, Senechal’s deposition testimony indicated that Blake’s guarantee letter was against industry standards and that Blake could not have foreseen the relevant market conditions two years into the future when Blake made his guarantee. Senechal’s office was in California, and she had no personal or direct dealings with the Johnsons, Blake, or Bay City. Still, the Johnsons argued that the jury should hear Sene-chal’s deposition testimony because:

Ms. Senechal testified that she had reviewed the allegations of the complaint, she reviewed the documents, she reviewed the letter, and that this was an atypical situation, that there was no way Mr. Blake could make this guarantee, that he should have disclosed to the plaintiffs that they needed additional money to put up front, and that this was something that was bad judgment on the part of Mr. Blake.

The trial judge refused to allow Senechal’s deposition testimony because it was irrelevant to the issues in the case, and even if the testimony were relevant, the danger of unfair prejudice, confusion of the issues, and misleading the jury outweighed the testimony’s probative value. Further, the trial judge held that Senechal’s testimony constituted expert testimony, but the Johnsons provided no notice of expert testimony.

¶ 22. The admission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion. General Motors Corp. v. Jackson, 636 So.2d 310, 314 (Miss.1992). Unless the trial judge abuses his discretion so as to cause prejudice to the complaining party, the decision regarding the evidence will not be reversed. Foster v. Noel, 715 So.2d 174(¶ 44) (Miss.1998).

¶ 23. Rule 401 of the Mississippi Rules of Evidence defines “relevant evidence.” According to Rule 401, relevant evidence “means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401.

¶ 24. We can find no abuse of discretion on the part of the trial judge. The John-sons alleged that Blake fraudulently promised to obtain a lower fixed-rate mortgage for them, while Blake never intended to perform according to his guarantee. Sen-echal’s deposition testimony does not tend to make any fact of consequence to the Johnsons’s fraud claim more or less probable. Senechal had no direct dealings with Blake and could not testify as to his intent. She could only testify that Blake used bad judgment by giving the Johnsons an “atypical” guarantee. Senechal’s testimony was irrelevant to the issues then before the circuit court. Irrelevant evidence is inadmissible. M.R.E. 402. Thus, the trial judge did not err when he suppressed Senechal’s deposition testimony from the evidence. We affirm the trial judge’s decision.

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

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


author: IRVING, J.,

text:
    Reta LAWRENCE a/k/a Reta Faye Lawrence, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01061-COA.
    Court of Appeals of Mississippi.
    Oct. 18, 2005.
    Rehearing Denied May 16, 2006.

      Ross Parker Simons, attorney for appellant.
    Office of the Attorney General by Glenn Watts, attorney for appellee.
    Before KING, C.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. Reta Lawrence was convicted by a George County jury of transfer of a controlled substance. Feeling aggrieved, Lawrence appeals her conviction, arguing: (1) that her trial took place outside the 270-day statutory time limit; (2) that the jury in her case was never placed under oath; and (3) that the State failed to meet its burden of proof in her case because it did not prove that Oxycodone is a Schedule II controlled substance.

¶ 2. We find no reversible error and therefore affirm Lawrence’s conviction and sentence.

FACTS

¶3. On May 18, 2000, Reta Lawrence was arrested for transferring Oxycodone, a controlled substance. Lawrence transferred thirty-seven pills, later determined to be Oxycodone, to undercover police officer Antoine Battle during a police sting operation. Lawrence was indicted by a George County grand jury on January 16, 2001, for transfer of a controlled substance. Lawrence was arraigned on April 23, 2001. Her trial began on February 3, 2004, nearly three years after her arraignment.

¶ 4. At trial, Jason Alexis, the Mississippi Crime Laboratory analyst who examined the pills taken during Lawrence’s arrest, was called to testify for the State. Alexis testified that he had tested the pills and found them to contain Oxycodone and aspirin. Defense counsel did not cross examine Alexis as to this finding. Lawrence moved for a directed verdict after the State rested, but her motion was denied. She then testified in her own defense, admitting that she had been at the scene of the crime, but denying that she had transferred any substance to Battle. After the defense rested its case, the jury retired to deliberate and returned a verdict of guilty. Additional facts follow as necessary below.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) The 2 70-day Statute

¶ 5. Under Mississippi statutory law, a criminal trial must begin no more than 270 days after a defendant’s arraignment, unless good cause is shown and the court grants leave for the delay. Miss. Code Ann. § 99-17-1 (Rev.2000). In Lawrence’s case, approximately 1,015 days passed between the date of her arraignment and trial. Only delays that a defendant is responsible for count against the defendant in determining whether her trial has started within the statutory time limit. Baine v. State, 604 So.2d 258, 264 (Miss.1992). In other words, although there were over 1,000 days between Lawrence’s arraignment and her trial, the time period may still be within the statutory limit if Lawrence was responsible for enough of those delays. For the reasons below, we find that the prosecution was responsible for less than 270 days of the time between Lawrence’s arraignment and trial, and therefore affirm the finding of the court below.

¶ 6. The State concedes that it is responsible for 212 days of the delay between Lawrence’s arraignment and her trial. Therefore, if the State is responsible for fifty-nine more days, Lawrence’s trial will have been in violation of the statutory limit. Especially disputed by Lawrence and the State is a set of days in April or July of 2002. This disputed time period would be sufficient to place the case over the statutory limit if construed against the State. The State claims that the disputed delay was the result of the State’s reasonable belief that Lawrence might negotiate a plea bargain. Lawrence contests this characterization and argues that she should not be held accountable for the time absent a clear explanation in the record of the reason for the delay. At particular issue below was an audiotape that Lawrence argued might shed light on the reason behind the 2002 delay. Lawrence has not supplied any additional evidence on appeal regarding the audiotape in question, nor has she otherwise explained the delay. Absent additional evidence showing that the delay was not for good cause, we defer to the trial court’s finding that good cause existed for the delay. As stated by the Mississippi Supreme Court: “A finding of good cause is a finding of ultimate fact, and should be treated on appeal as any other finding of fact; it will be left undisturbed where there is in the record substantial credible evidence from which it could have been made.” Walton v. State, 678 So.2d 645, 648 (Miss.1996).

¶ 7. Lawrence urges us to find that several of these delays should not count against her because her express agreement to them does not appear in the record. These delays were all asked for or authorized by Lawrence’s counsel. Lawrence cites no authority for her position that these delays should not be counted against her. Since we know of no legal precedent that allows Lawrence relief on this point, we find no error.

¶ 8. As a last point, Lawrence asks us to reverse and remand her case for a hearing where the State will have to show that there has been no prejudice to Lawrence before it can retry her. She bases this request on State v. Harrison, 648 So.2d 66 (Miss.1994). Harrison only applies, however, when there is a clear violation of the 270-day statute: “We need not apply our more recent case of State v. Harrison. ... Harrison was a case involving a clear violation of the 270-day statute, whereas the case sub judice absolutely is not.” McGhee v. State, 657 So.2d 799, 805 (Miss.1995). As in McGhee, the case before us is not a clear violation of the 270-day statute. The hearing prescribed by Harrison only applies once it has been determined that the 270-day statute has been violated. The record in Lawrence’s case shows that the 270-day statute has not been violated; therefore, Harrison has no relevance to our decision.

¶ 9. Lawrence has not appealed on the basis of her constitutional right to a speedy trial, so we do not address that issue here.

(2) Alleged Lack of Oath Given to Jury

¶ 10. Lawrence argues that her conviction should be overturned because the trial court failed to administer the petit juror’s oath (or any other oath) as required by Mississippi Code Annotated section 13-5-71 (Rev.2002). Lawrence contends that this alleged lack of an oath violated her fundamental rights and constitutes plain error such that we must reverse. Since Lawrence failed to object to any lack of oath at trial, she must prove that the lack of jury oath constitutes plain error: “This Court has held that a party who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal, because it is otherwise procedurally barred.” Williams v. State, 794 So.2d 181, 187 (¶ 23) (Miss.2001). Plain error is found when there is “an error ... that ... resulted in a manifest miscarriage of justice. Further, this Court applies the plain error rule only when it affects a defendant’s substantive/fundamental rights.” Id. (citations omitted). In other words, for Lawrence to prevail on appeal, this Court would have to find: (1) that there was error (in this case, that there was no oath given); (2) that the error resulted in a manifest miscarriage of justice; and (3) that the error affected one of Lawrence’s substantive or fundamental rights.

¶ 11. For there to be plain error in Lawrence’s case, Lawrence would have to show that there was no oath given to the jury. In order to prove this, Lawrence must overcome a rebuttable presumption that the judge in her case properly performed his duties by placing the jury under oath. Young v. State, 425 So.2d 1022, 1025 (Miss.1983). In Woulard v. State, a boilerplate warning was sufficient to show that the jury had been sworn, even when the record did not reflect whether the jury was sworn. Woulard v. State, 832 So.2d 561, 567 (¶¶ 24-25) (Miss.Ct.App.2002). A similar boilerplate warning was present in Lawrence’s case, and there are references throughout the record by the judge, prosecutor and even Lawrence’s own counsel to an oath being given. Therefore, Lawrence has not presented any evidence sufficient to overcome the presumption that the judge properly performed his duties in swearing the jury.

¶ 12. Lawrence contends that Gaskin v. State, 873 So.2d 965 (Miss.2004) requires us to find that there was no oath given to the jury in her case. In Gaskin v. State, a jury was chosen; the defendant then raised a successful Batson challenge, and a mistrial was declared. Id. at 967 (¶ 9). The defendant was retried and, on appeal, claimed that his double jeopardy rights had been violated because of a boilerplate statement in the mistrial order that the jury had been empaneled and sworn. Id. at (¶ 7). In fact, it was clear in Gaskin that the jury had never been sworn; as a result, the Mississippi Supreme Court declared that jeopardy had never attached. Id. at (¶ 12). . Lawrence would have us read this case as providing relief for her because there is a boilerplate statement that the jury was administered an oath in her record, but no transcription of the actual jury oath. We believe that the holding of Gaskin would have to be seriously strained to provide relief for Lawrence.

¶ 18. In Gaskin, the record was completely void of any reference to an oath given to the jury, and in fact, when the trial court was required to supplement the record on the issue of whether an oath had been given to the jury, the unequivocal finding was that no jury had been sworn. Gaskin, 873 So.2d at (¶ 12). The record and the boilerplate oath statement in Gas-kin contradicted each other; there is no contradiction in the case at bar. Here, the prosecutor, judge, and Lawrence’s counsel all referred to the oath given to the jury throughout the proceedings. The record merely corroborates what the boilerplate warning states.

¶ 14. Since Lawrence has failed to provide evidence sufficient to prove that no oath was administered in her case, no reversal is required.

(3) Oxycodone as a Schedule II Controlled Substance

¶ 15. Lawrence’s last argument is that her conviction should be reversed because the State failed to prove that Oxy-codone is a controlled substance. The statute that Lawrence was charged and convicted under makes it a crime for anyone to “sell, barter, [or] transfer ... a controlled substance.” Miss.Code Ann. § 41 — 29—139(a)(1) (Rev.2001). This section does not define what constitutes a “controlled substance,” but other sections of the code delineate some substances as controlled substances. For example, Oxy-codone is listed as a controlled substance under Schedule II of the Mississippi Code. Miss.Code Ann. § 41-29-115(A)(a)(l)(xiv) (Rev.2001). No testimony was offered by the State to prove that Oxycodone is a Schedule II controlled substance. Therefore, the real question before us is whether the State must have shown that Oxycodone is a Schedule II controlled substance as Lawrence urges or whether the State needed only to prove that the substance in question is a statutorily controlled substance.

¶ 16. The Mississippi Supreme Court has previously addressed this issue. In Thomas v. State, a defendant appealed his conviction on the grounds that the State proved only that the defendant possessed Diazepam, but did not prove that Diazepam was a controlled substance. Thomas v. State, 377 So.2d 593, 594 (Miss.1979). The court held:

[I]t is argued that there was no testimony that the drug involved was a controlled substance, and that, therefore, appellant’s motion for a directed verdict at the conclusion of the state’s case in chief should have been sustained.... We, however, find no merit in the contention. At the date of the alleged crime ... Diazepam was a controlled substance. Proof that the sale and delivery was of diazepam sufficiently showed a sale and delivery of a controlled substance.

Id. This holding has been affirmed by a more recent Mississippi Supreme Court case. In Hart v. State, 639 So.2d 1313 (Miss.1994), a defendant’s conviction for possession of marijuana was upheld even though the State had not actually proved that marijuana was a Class I controlled substance. These two cases make it clear that when a defendant is charged with possession of a specific substance that is defined by statute as a “controlled” substance, the State need only prove that the substance is one that is listed in the schedules. Therefore, even though the State in Lawrence’s case did not offer any testimony as to the Schedule II classification of Oxycodone, the State still proved all the essential elements of its case. By proving that the pills that Lawrence transferred were Oxycodone, the State proved that Lawrence transferred a controlled substance, because Oxycodone is in fact a Schedule II controlled substance. The designation of Oxycodone as a controlled substance was not a question of fact for the jury.

¶ 17. Lawrence urges us to consider Copeland v. State as providing support for Lawrence’s contention that the State was required to prove that Oxycodone is in fact a Schedule II controlled substance. Copeland, however, provides no relief for Lawrence. In Copeland, the State failed to include “3, 4” before the name of the specific substance in question. Copeland v. State, 423 So.2d 1333, 1336 (Miss.1982). The court relied on a Fifth Circuit case that determined that the same omission meant that the State had failed to allege a crime since the chemical name without the “3, 4” was not a statutorily controlled substance. Id. at 1336-37 (citing United States v. Huff, 512 F.2d 66 (5th Cir.1975)). The same is not true in Lawrence’s case. Oxycodone is the full chemical name of the substance that Lawrence transferred. Copeland would only provide relief to her if the chemical name listed in Schedule II was different from the chemical name alleged in the indictment and proved at trial. Since it is not, we rely on Thomas and Hart and hold that the State proved all the essential elements necessary for Lawrence’s conviction.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF GEORGE COUNTY OF CONVICTION FOR TRANSFER OF A CONTROLLED SUBSTANCE AND SENTENCE OF THIRTEEN YEARS WITH FIVE YEARS SUSPENDED AND EIGHT TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND A FINE OF $5,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GEORGE COUNTY.

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

      . The language of the oath given in the statute reads as follows: “You, and each of you, do solemnly swear (or affirm) that you will well and truly tiy all issues and execute all writs of inquiry that may be submitted to you, or left to your decision by the court, during the present term, and true verdicts give according to the evidence. So help you God.”

        . "[The Mississippi Code] clearly provides that marijuana is a Schedule I controlled substance. The indictment charged Hart with possession ... of marijuana, a Schedule I controlled substance. Timothy Gross, forensic scientist and expert in drug identification, testified that ... the substance ... was marijuana.” Hart, 639 So.2d at 1318. The Court then went on to cite and quote from Thomas in holding that Hart was not entitled to relief on appeal.


author: CHANDLER, J.,

text:
    Blaine HOWZE and Lisa Howze, Individually and on Behalf of Their Minor Son, Jarred Howze, Appellants. v. Carrie D. GARNER, Executrix of the Estate of B.J. Garner, Deceased, Appellee.
    No. 2004-CA-01257-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2005.
    Rehearing Denied May 16, 2006.

      Preston John Mauffray, John Randall Santa Cruz, attorneys for appellants.
    David L. Cobb, Jeffrey G. Pierce, Gulf-port, attorneys for appellee.
   CHANDLER, J.,

for the Court.

¶ 1. Blaine, Lisa Marie, and Cory Howze attended a swimming party at the home of B.J. Garner. Garner allowed his daughter to use his home and pool for the party, but Garner was not involved in the planning of the party and did not attend. Cory drowned in Garner’s pool; the adult who was supervising the pool was unable to see Cory because the water in the pool was cloudy. Blaine and Lisa Marie sued Garner for creating a dangerous condition on his premises and failing to warn of the dangerous condition. The Harrison County Circuit Court granted summary judgment in favor of Garner. The Howzes appeal, raising the following issue:

WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT

¶ 2. Binding no error, we affirm.

FACTS

¶ 3. B.J. Garner allowed his daughter to use his premises and pool for the purpose of hosting a children’s end-of-the year soccer team party, which was held on April 15, 2000. The pool was enclosed by a tent that enabled Garner to swim in his pool in colder weather. The invitation for the party stated that there would be a cost of $15 for trophies and awards given to each child and a cost of $10 per family for the meal. The invitation advised that parents of children who are not strong swimmers should provide flotation devices and that the pool would be supervised by adults. Garner did not participate in the planning of the party, he did not attend the party, and he was not advised of any of the details regarding the party.

¶ 4. Blaine and Lisa Howze (“the Howzes”) brought their children, seven-year-old Cory and thirteen-year-old Jarred, to the party. The Howzes were not comfortable with allowing Cory to swim without adult supervision, but they did not bring flotation devices. The Howzes did not speak with anyone regarding their concerns with Cory’s swimming abilities. When Lisa saw that adults were watching the swimmers, she left her sons at the .pool and went to talk with other party attendees. Lisa returned to the pool when she heard someone say that Cory had drowned. Cory was discovered at the bottom of the pool and died two days later.

¶ 5. One of the parents, Russell Lanier, supervised the swimming shortly before Cory was found in the pool and was in the pool enclosure at the time Cory was discovered. One of the children told Lanier that she thought someone was at the bottom of the pool. ■ Lanier doubted that anyone was at the bottom of the pool because Lanier was looking at the bottom of the pool and did not see anything or anyone. He asked the girl informing him of this fact to dive to the bottopi of the pool and double-check. When the girl.swam to the bottom of the pool, she disappeared from his sight after she swam under three or four fe.et of water. Lanier dove in because he realized that someone could be at the bottom of the pool without being able to see him. Lanier pulled Cory out of the pool and into the garage.

¶ 6. The Howzes sued- Garner for creating dangerous conditions on his premises and failing to warn of such dangerous conditions. The circuit court granted summary judgment in favor of Garner.

ANALYSIS

WHETHER THE CIRCUIT COURT ERRED - IN GRANTING SUMMARY JUDGMENT

¶ 7. Summary judgment motions are reviewed de novo. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002(¶7) (Miss.2001). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions oh file, to-' gether 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.” M.R.C.P. 56(c). All evidence is viewed in the light most favorable to the non-moving party. Travelers Property Casualty Corp. v. Stokes, 838 So.2d 270, 273(¶9) (Miss.2003); Haggans v. State Farm Fire and Cas. Co., 803 So.2d 1249, 1252(¶ 7) (Miss.Ct.App.2002). However, to avoid summary judgment, the adverse party must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment will be entered against him. M.R.C.P. 56(e).

¶ 8. The analysis of premises liability involves three steps. Titus v. Williams, 844 So.2d 459, 467(¶ 28) (Miss.2003). The first step is to classify the status of the person as an invitee, licensee, or trespasser. Id. The second step is to assess, based on the party’s injured status, the duty which was owed to the injured party. Id. The last step is to determine whether the landowner breached his duty to the injured party. Id.

(A) Whether Cory was an invitee or licensee

¶ 9. The determination of which status a particular plaintiff holds can be a jury question, but where the facts are not in dispute the classification becomes a question of law. Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097, 1100 (Miss.1986) (citing Graves v. Massey, 227 Miss. 848, 853, 87 So.2d 270, 271 (1956)).

¶ 10. In order to create invitee status, there must be a mutually advantageous interaction between the landowner and the invitee. Massey v. Tingle, 867 So.2d 235, 239(¶ 14) (Miss.2004). By contrast, a licensee enters upon the property of another for his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner. Hudson., 794 So.2d at 1003(¶ 10). The Howzes were required to pay $25 to attend the party on Garner’s property. The Howzes argue that this fact creates a jury question relating to Cory’s status. In Corley v. Evans, 835 So.2d 30, 32(¶ 4) (Miss.2003), a daughter hosted a crawfish boil for which she charged an admission fee on property that she owned jointly with her father. During the party, Corley’s friend accidentally shot him while they were on the defendants’ property. Id. at 33(¶ 7). The supreme court held that Corley was an invitee as to the daughter, because the daughter charged an admission fee for the crawfish boil. Id. at 37(¶.22). As to the father, however, Corley was a licensee, because the father derived no benefit from the crawfish boil; he did not receive any money from the daughter’s hosting of the crawfish boil and was not involved in its promotion or staging. Id. at 39(¶ 28). Similarly, Garner did not sponsor the party, did not attend, and did not receive any money from the party. Cory entered Garner’s premises as a licensee.

(B) Duty of care

¶ 11. In general, the duty owed to a licensee is to refrain from willfully or wantonly injuring the guest. Sharp v. Odom, 743 So.2d 425, 429(¶ 5) (Miss.1999). The supreme court has recognized an exception to this general rule. “The legal distinctions between a licensee and invitee have little significance once the presence of a person upon the possessor’s premises is known and there are affirmative actions involving him. Status relates largely to negligence for the condition of premises, that is, passive negligence and- not to active or affirmative negligence -emanating from action or inaction by the possessor with knowledge of an individual’s presence.” Hoffman v. Planters Gin Co., Inc., 358 So.2d 1008, 1012 (Miss.1978). The Hoffman court concluded that there is an obligation for a landowner to exercise reasonable care for the. protection? of a licensee “as to any active operations which the occupier carries on.” Id. at 1013. The Howzes urge this Court to apply the Hoffman exception.

¶ 12. Mississippi Supreme Court cases following Hoffman acknowledged that the Hoffman holding was a “very limited exception.” Little v. Bell, 719 So.2d 757, 761 (¶ 22) (Miss.1998).

In order to fall within the Hoffman exception, the landowner must be aware of the licensee’s presence upon the premises, the landowner must engage in affirmative or active negligence in the operation or control of a business, the landowners’ conduct in regards thereto must subject the licensee or invitee to unusual danger, or increase the hazard to him, and the landowner’s active or affirmative negligence must have proximately caused the plaintiffs injury.

Id. at 762(¶ 22).

¶ 13. A landowner must be engaged in affirmative or active negligence in the operation or control of a business before a plaintiff can invoke the Hoffman exception. Id. at 762(¶ 23). In the present case, Garner was not operating a business, nor did he derive any financial benefit from the Howzes’ presence; the incident occurred at Garner’s home residence. The Hoffman exception clearly does not apply.

(C) Whether Garner breached his duty of care

¶ 14. Since Cory entered Garner’s premises as a licensee, Garner owed to Gory the duty “to refrain from willfully or wantonly injuring him, and not to set traps for him by exposing him to hidden perils.” Marlon Inv. Co. v. Conner, 246 Miss. 343, 351, 149 So.2d 312, 315 (1963) (citing Dry v. Ford, 238 Miss. 98,117 So.2d 456 (1960); Wright v. Caffey, 239 Miss. 470, 123 So.2d 841 (1960)). The Howzes argue that a jury question exists as to whether the cloudy condition of the pool was a concealed danger or hidden peril.

¶ 15. The Howzes submitted into evidence a report from Dr. Tom Griffiths, Director of Aquatics from Pennsylvania State University. According to Dr. Grif-fiths, numerous safety brochures are provided, free of charge at most pool supply stores, to prospective pool owners. Some of the brochures identified by Griffiths include “Children Aren’t Waterproof,” a publication promoting close adult supervision around pools; “Safety Barrier Guidelines for Home Pools,” a publication discussing the advantages of fences, walls, gates, and locks to protect children against drowning; and “The Sensible Way to Enjoy Your Inground Swimming Pool: An Essential Safety Guide, Mandatory Reading.” In 1995, Dr. Griffiths submitted a publication opining that residential pool parties should be supervised by certified lifeguards. In that publication, Dr. Grif-fiths stated that safeguarding children in a swimming pool requires a combination of lifeguarding techniques and safety equipment.

¶ 16. Dr. Griffiths stated that Cory’s drowning could have easily and inexpensively been avoided. He stated that Garner was negligent for failing to provide personal flotation devices and failing to install a “life-line” or buoyed rope that separates the shallow end of the pool from the deep end. He also stated that Garner was negligent for failing to read any pool safety brochures, not personally attending the pool party, and not hiring a certified lifeguard. Finally, Dr. Griffiths concluded that Garner was negligent for allowing children to swim in a cloudy pool.

¶ 17. Although Dr. Griffiths concludes that Garner was negligent, there is nothing in the report that states that Garner’s actions or inactions contributed to the cloudy water in the pool. Moreover, Dr. Griffiths’ report does not give an opinion as to whether the pool was a hidden peril or danger.

Garner concedes that there are dangers associated with allowing children to swim in pools. However, Garner argues that these dangers are not hidden perils. Appellate courts in other jurisdictions have concluded that swimming pools are not per se hidden perils. In Hemphill v. Johnson, 230 Ga.App. 478, 481, 497 S.E.2d 16, 19 (1998), the Georgia Court of Appeals affirmed the lower court’s grant of summary judgment. It concluded that the absence of safety or rescue equipment does not convert a pool into a mantrap because the risk of drowning is obvious. Similarly, appellate courts in Illinois have concluded that an above ground pool is an open and obvious danger as a matter of law. Englund v. Englund, 246 Ill.App.3d 468, 477, 186 Ill.Dec. 57, 64, 615 N.E.2d 861, 868 (1993). The risk of drowning in a pool is obvious. Therefore, Garner’s failure to provide flotation devices, hire certified lifeguards, install a life-line, or read brochures pertaining to pool safety does not constitute a breach of Garner’s duty to warn of hidden perils.

¶ 18. In “The Complete Swimming Pool Reference,” Second Edition, Dr. Griffiths comments on the causes of cloudy water in pools. Dr. Griffiths asserts that “[tjhere are numerous causes from cloudy water in swimming pools.” He states that water turns cloudy quickly when chlorine levels drop too low or if the water is not being filtered properly. Contributing causes to filtration problems include “[ojils, hair, and lint.” Dr. Griffiths states that high swimmer load is a contributing factor in causing cloudiness. The evidence shows that the cloudy condition of the pool occurred quickly. The Howzes presented no evidence showing that the pool’s water was cloudy prior to the children’s entry in the pool or that Garner knew or should have known that the large number of swimmers would contribute to the pool’s cloudiness.

¶ 19. Prior to the party, William Cook, the head coach of Cory’s soccer team, arrived at Garner’s premises, inspected the pool, and found no condition that would alert him to the fact that the pool was unsafe. According to Cook, the water looked sufficiently safe for children to swim. The first observation of the cloudy condition of the pool occurred when a girl informed Russell Lanier that someone was at the bottom of the pool.

¶ 20. Dr. Griffiths stated in his report, “[I]f Mr. Garner had simply maintained clear water in his pool, anyone in attendance probably would have seen and rescued Cory in a timely fashion.” However, Dr. Griffiths did not discuss what procedures Garner should have followed in maintaining the pool. In fact, the evidence shows that Garner did maintain the pool adequately. Garner testified that he hired Mac’s Pool Service to maintain the pool, clean the pool, and regulate the pH level. Garner testified that Mac’s maintained the pool every week during the summer, twice a month during the spring and fall, and once a month during the winter. Garner had employed Mac’s in this manner for a period of ten to twelve years. The Howzes presented no proof showing that the cloudiness in the pool was the result of Garner’s inactions.

CONCLUSION

¶ 21. The Howzes were licensee social guests of Garner. Garner was not involved in the planning of the soccer party, did not profit from the cost the Howzes paid to attend the party, and received no mutual benefit from the Howzes’ presence. A landowner owes a duty to licensees to refrain from willfully and wantonly injuring licensees and to warn of hidden dangers and perils. The Hoffman exception, which imposes upon landowners a duty to exercise reasonable care to a licensee, does not apply to the present case. Garner did not engage in affirmative acts of negligence, and he was not engaged in the operation or control of a business. The Howzes failed to present evidence that Garner knew or should have known that his pool was cloudy. The evidence shows that Garner properly maintained his pool and that the condition of the pool was inspected before any children were allowed to swim. The circuit court properly granted summary judgment.

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

KING, C.J., LEE AND MYERS, P.JJ., BRIDGES, IRVING GRIFFIS, BARNES AND ISHEE, JJ„ CONCUR.

      . The Howzes sued both Cook and Garner. The Howzes have settled their claims against Cook.