text:
    Jeremy Wendell ISOM v. STATE of Mississippi.
    No. 2005-KA-00434-SCT.
    Supreme Court of Mississippi.
    May 11, 2006.

      Ralph Stewart Guernsey, Oxford, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   EASLEY, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. Jeremy Wendell Isom (Isom) was indicted in the Circuit Court of Lafayette County, Mississippi for burglary of a dwelling. Following a jury trial, Isom was convicted of burglary of a dwelling house and sentenced to serve a term of twenty-five years in the custody of the Mississippi Department of Corrections with five years suspended and twenty years to serve. The trial court denied Isom’s post-trial motion for J.N.O.V., or in the alternative, new trial. Isom now appeals to this Court.

FACTS

¶ 2. On December 26, 2003, Pam Thompson (Pam) awoke between 11:00 p.m. to 12:00 a.m. Pam shared the apartment with her brother, Terrel Thompson, in Oxford, Mississippi. As she entered the hallway, Pam saw two men, one white and one black, walking toward her brother’s room. Terrel was not at home at the time of the intrusion. When Pam screamed, the two men ran out of the apartment.

¶ 3. Pam only recognized the white man. She knew him because he had been to the apartment before to get some class notes from Terrel. The police later arrested the white man, John Patterson (Patterson). Patterson admitted that he and Jeremy Isom were involved in the burglary. He later agreed to testify against Isom. Patterson testified that he and Isom decided to break into Terrel’s apartment, that Ter-rel was a drug dealer, that they called Terrel on his cellphone, and Terrel told them that he was out of town for the holidays. Once Patterson and Isom learned Terrel was out of town, they decided to break into Terrel’s apartment at . Oak View Apartments. Isom kicked in the door, and both men entered the apartment. When Patterson saw Pam, he told Isom that there was someone else in the apartment. Both men fled the apartment. Patterson ran out first with Isom following behind him. Patterson stated they were breaking into the apartment to steal his drug dealer’s drugs and money. Isom and Patterson ran to Maplewood Apartments, where a friend of Patterson’s lived. The police questioned Patterson later that night. He confessed to his involvement in the burglary and testified against Isom at trial.

¶ 4. Jenny Szerkins (Szerkins) was at Patterson’s friend’s apartment on December 26, 2003. Szerkins testified that Isom and Patterson arrived at the apartment sweaty. When Isom learned the police were on their way to the apartment, he pulled out a gun and said that he could not be caught with the gun.

¶ 5. Martha Everitt (Martha) testified that on December 26, 2003, she and her daughter, Jessica Everitt (Jessica), were inside her home located on 2118 Harris Drive in Oxford, Mississippi. Jessica saw flashing lights outside the house. Martha opened her front door and a police officer told her to stay inside the house and lock the door. Jessica told Martha that a man was in their backyard. Martha reported to the police that somebody was in the backyard. Jessica saw the man jump over the fence. Martha then went to the kitchen and she and Jessica saw a black male jump back over the fence, lose his footing, slide and run to one of the fence gates. Martha had motion-sensor lights in her yard.

¶ 6. The next morning while walking in her backyard, Martha discovered a gun. Martha put the gun in a plastic bag and called the police. At trial, Martha identified Isom as the man in her' yard on December 26, 2003. On cross-examination, Martha stated that when the defendant slipped in the yard, he looked straight at her. Later, Martha stated' that her spotlight shone on him and-he was wearing a “toboggan” on his head.

¶ 7. Jessica also testified at trial and identified Isom as the man in her backyard. Jessica noticed that the motion-sensor spotlights came on at her home. She saw a man running through the yard. When Jessica went to the back of her house, the spotlight was shining on a black male crouched in front of the fence. She had a good look at him and saw his face. He jumped over the fence. The next day, Jessica saw Isom again by the side of her house. She notified the police that she saw Isom in the yard the next day. The police contacted Jessica and Martha about a photographic line-up. Jessica viewed the photo line-up at the police station and identified Isom from the' photographs. Isom was convicted by a jury of burglary of a dwelling house.

I. Discovery violation/continuance

¶ 8. Isom asserts that the trial court erred by allowing the admission of Jessica and Martha Everitts’s testimony and that the trial court failed to apply the procedures for a discovery violation by failing to either grant a continuance or exclude the testimony as outlined in the Uniform Circuit and County Court Rule 9.04(A) and (I) and in Box v. State, 437 So.2d 19 (Miss.1983). He also argues that the prosecution’s violation of the discovery rule and the trial court’s denial of a continuance resulted in substantial prejudice and a miscarriage of justice. The State contends that the trial court-did not abuse its discretion by «admitting testimony and exhibits into evidence and by denying Isom’s request for a continuance. The State also asserts that Isom failed to pass the two factor test in Brawner v. State, 872 So.2d 1, 13 (Miss.2004), and failed to demonstrate that manifest injustice resulted from the denial of the continuance.

¶ 9. Originally,’ trial was set for December 6, 2004. A jury was empaneled on that day. However, the trial court granted a continuance and reset the trial for January 20, 2005. During the time of the continuance, the State, sought to introduce two new, witnesses, Jessica and Martha Everitt. Jessica and Martha viewed an out-of-court photographic line-up on January 4, 2005, and were to provide eyewitness testimony concerning Isom’s whereabouts on the night of the burglary. Isom filed a motion in limine on the date of trial, to exclude new evidence. In the alternative, he requested that the trial be continued in order to give defense counsel the opportunity to ask the witnesses questions and prepare a proper defense.

¶ 10. Defense counsel asserted in the written motion in limine and at the hearing on the motion that the district attorney’s office contacted Isom’s defense counsel by telephone on January 14, 2005. The assistant district attorney informed defense counsel that there were two new witnesses, Jessica and Martha, and relayed the substance of their potential testimony. The prosecution delivered the names, address, and telephone number of Jessica and Martha, synopsis statements of Jessica and Martha, an amended witness list, and a supplement to witness statements to the office of Isom’s counsel on January 17, 2005. Defense counsel was not aware that this information was dropped by his office until January 18. Also on January 18, the assistant district attorney produced 17 digital photographs, 12 color photographs, and two aerial maps. On “Wednesday, January 18” \ the assistant district attorney gave defense counsel other documents and a copy of the photographic line-up viewed by Jessica on January 4, 2005, from which she identified Isom. The telephone number provided by the prosecution for Jessica and Martha was disconnected; therefore, Isom’s counsel received a new contact number for the witnesses the day before trial. Isom had a two day trial in which Martha testified on January 20 and Jessica testified on January 21, 2005.

¶ 11. The State believed that Jessica and Martha’s testimony would link a gun to Isom. The witnesses saw Isom in their yard on the night of the burglary, and Martha found a gun in their yard the next day. The trial court took the motion under advisement. Prior to Martha’s testimony, Isom renewed his motion in limine to exclude the testimony or continue the case. The trial court denied the motion and gave defense counsel fifteen minutes to speak to the witnesses.

¶ 12. Uniform Circuit and County Court Rule 9.04(A) provides that the prosecution must disclose the names and addresses of all witnesses in chief to the defendant or his/her attorney. This Court in Payton v. State, 897 So.2d 921, 941 (Miss.2003) set out the procedures for alleged discovery violations as follows:

In Box, and its progeny, this Court set out the procedure for trial courts to follow when a discovery violation has occurred. This precedent has been codified in URCCC 9.04(1), which reads, in pertinent part, as follows:
If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.
3. The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence. The court shall follow the same procedure for violation of discovery by the defense.
URCCC 9.04 (emphasis added).

¶ 13. In this case, defense counsel claimed that he needed time to interview the witnesses and prepare a defense. The trial court overruled the Box objection by defense counsel. However, the trial court did allow defense counsel fifteen minutes to interview the witnesses. In his brief, Isom argues that defense counsel was made aware of the two witnesses the week of trial, only had an opportunity to contact the witnesses the day before their testimony, and only had fifteen minutes on the day of their testimony to interview them.

¶ 14. The Everitts were recently discovered witnesses. Once the prosecution was aware of the witnesses, it informed Isom’s counsel. There is no evidence that the prosecution deliberately withheld any information from Isom. The record is silent on what occurred between January 4 and January 14, 2005. The record does reflect that the prosecution requested that the police look into the unidentified witnesses in the police report. When the police gave the prosecution the witnesses names, an interview was conducted on January 14, 2005, after which the prosecution called the defense counsel on the same day to inform him of the witnesses and their potential testimony. The prosecution orally told defense counsel about the witnesses and their expected testimony and provided a written synopsis of the Everitts’s testimony to defense counsel prior to trial.

¶ 15. The trial court erred by failing to grant a continuance and admitting Jessica and Martha’s testimony. However, these errors were harmless because the evidence was so overwhelming that the jury could have sustained a conviction of burglary of a dwelling even without Jessica and Martha’s testimony. The evidence before the jury was that Pam was in the apartment that she shared with her brother Terrel on the night of the burglary. Pam recognized Patterson as a person that had been to her apartment to exchange school notes with her brother Terrel. She saw Patterson and a black male leave the house.

¶ 16. Patterson confessed to the crime and testified against Isom. He told police that Isom was his accomplice to the burglary. Patterson called Terrel on a cellphone and learned that Terrell was out of town. Patterson and Isom then decided to break into Terrel’s apartment to steal money and drugs. Once Patterson and Isom realized that the apartment was occupied, they fled Pam’s Oak View apartment and went to the Maplewood apartments. When Isom and Patterson arrived at a Maplewood apartment, they were described as “sweaty.”

¶ 17. Szerkins testified that she recognized Patterson and Isom from their former high school days together. She also stated that Isom pulled out a gun in front of her and a group of other people at the apartment, stating he could not be caught with the gun.

¶ 18. Officer Hatcher received a dispatch of a burglary and went to Pam’s house on December 26. When he arrived at the scene, the officer called in a description to other police units of a black male and a white male who had both fled the scene. The officer went to the Maplewood apartment of Jay Lovett and found a group of people there. Officer Owen attempted to open a back room in the apartment, heard some blinds, and a window open. Officer Owen went outside and saw a person fleeing the area. Both Officers Hatcher and Owen began to chase the person. This person ran down the driveway of 2118 Harris Drive (the Everitts’s home at the time) and into some nearby woods.

¶ 19. The next day, Officer Hatcher arrived at work and was given a gun to enter into evidence. The gun was recovered from the backyard of 2118 Harris Drive. Officer Hatcher later went to the house and spoke to a female who stated that the gun was found in her backyard. This house was the same house on Harris Drive the officer had chased the fleeing person the previous night.

¶ 20. Clearly, the above facts were so overwhelming that the jury could have sustained a conviction of burglary of a dwelling even without Jessica and Martha’s testimony. Therefore, the trial, court’s denial of the motion for continuance and subsequent admittance of Martha and Jessica’s testimony, while in error, was harmless. See Jones v. State, 669 So.2d 1383, 1394 (Miss.1995)

II. Biggers factors

¶ 21. Isom argues that the trial court should have excluded the testimony of Martha and Jessica Everitt because their identification was unreliable. In addition, Isom asserts that Martha’s in-court identification was tainted because she was present in the same room when Jessica positively identified Isom in the out-of-court photographic line-up. Isom also argues that Martha and Jessica’s in-court identifications fail to meet most, if not all, of the Biggers factors. See Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

¶ 22. Martha and Jessica made positive identifications of Isom at trial. Prior to trial, Martha and Jessica came to the police station to look at a photographic lineup. Jessica made a positive identification at the out-of-court photographic line-up. Martha, however, failed to positively identify Isom in the line-up and chose two people that could have been the person in her backyard. Jenny Sznenick testified that Isom showed a gun to a group of people, including herself, at the apartment. The Everitts’s testimony, Martha’s in particular, assisted in linking a gun to Isom. Martha testified that she found a gun in her backyard the day after a black male ran through her yard to escape police.

In Roche v. State, 913 So.2d 306, 310 (Miss.2005), this Court held:

The standard of review for trial court decisions regarding pretrial identification is “whether or not substantial credible evidence supports the trial court’s findings that, considering the totality of the circumstances, in-court identification testimony was not impermissibly tainted.” Ellis v. State, 667 So.2d 599, 605 (Miss.1995) (citing Magee v. State, 542 So.2d 228, 231 (Miss.1989); Nicholson v. State, 523 So.2d 68, 71 (Miss.1988); Ray v. State, 503 So.2d 222, 224 (Miss.1986)). We will only disturb the order of the trial court “where there is an absence of substantial credible evidence supporting it.” Id. (citing Ray, 503 So.2d at 224).

This Court, also, held:

We have previously held that “pretrial identifications which are suggestive, without necessity for conducting them in such manner, are proscribed.” York v. State, 413 So.2d 1372, 1383 (Miss.1982). The United States Supreme Court has also stated, “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) (quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 11[18] L.Ed.2d 1199 (1967)).

Roche, 913 So.2d at 310-11. Even if the identification is impermissibly suggestive, the identification can be admissible when “considering the totality of the circumstances surrounding the identification procedure, the identification did not give rise to a very substantial likelihood of misiden-tification.” York, 413 So.2d at 1383 (quoting Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). In Horne v. State, 825 So.2d 627, 637 (Miss. 2002), this Court set forth the five Biggers factors which this court must consider to determine whether the standard has been met for the identification testimony. See Biggers, 409 U.S. at 199-200, 93 S.Ct. 375. The five' factors are: “(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty exhibited by the witness at the confrontation; and (5) the time between the crime and the confrontation.” Horne, 825 So.2d at 637 (citing Biggers, 409 U.S. at 199-200, 93 S.Ct. 375).

¶ 23. In addition, this Court has held that “[p]retrial photograph identifications have been generally upheld if the witnesses view the photographs separately and if there is no emphasis placed on certain photographs as opposed to others.” Burks v. State, 770 So.2d 960, 963 (Miss.2000)(citing Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). In Burks, two witnesses viewed the photographs together and conferred with one another about their choices. Id. at 965. This Court found, considering the totality of the circumstances, the photograph identification was not so impermissibly suggestive as to give rise to irreparable mistaken identification. Id.

A. Out-of-court photographic line-up

¶ 24. Isom, not the State, questioned Martha about an out-of-court photographic line-up. Martha went to the police station to view the line-up; however, she did not positively identify Isom. Instead, Martha simply narrowed the photographs down to two people that could have been the man in her backyard. Isom raised the issue of Martha’s inability to make a positive out-of-court identification. The State only asked Martha to make an in-court identification. Accordingly, Isom may not complain on appeal for an issue that he, himself, raised. “[T]he general rule is that a defendant may not, himself, introduce evidence at trial and then assert on appeal that the admission of the evidence constituted reversible error.” McCullough v. State, 750 So.2d 1212, 1215 (Miss.1999); Fleming v. State, 604 So.2d 280, 289 (Miss.1992).

¶ 25. Martha’s testimony on cross-examination refutes any assertion by Isom of an impermissibly suggestive identification. Martha stated that she was present when Jessica identified Isom in the photographic line-up. However, Martha did not know or see who Jessica chose from the photographic line-up. The officer did not allow Jessica and Martha to view the photographs together.

¶ 26. We find that Martha did not positively identify Isom at the photographic line-up. Isom can show no prejudice by Martha’s presence at the photographic line-up. Rather, Martha’s inability to positively identify Isom at the photographic line-up benefits Isom, as it creates a jury question of Mártha’s reliably and credibility on the issue of identification. Furthermore, a review of the photographic line-up viewed by Martha and Jessica and admitted at trial shows there was nothing im-permissibly suggestive about it.

¶ 27. As for Jessica’s out-of-court identification, the State introduced testimony from Jessica concerning her positive identification of Isom at the photographic line-up. Isom objected to the admissibility of the line-up testimony on the grounds that the document was produced a few days before trial. The trial court overruled the objection. We find that any argument that the out-of-court identification was improper is waived. At trial, Isom cited to a discovery violation not improper identification testimony. As stated in Issue I, the trial court correctly found no discovery violation. Since the objection was based on the grounds of a discovery violation and not improper identification, the issue was waived. See Stringer v. State, 279 So.2d 156, 158 (Miss.1973).

B. In-court identification

¶ 28. Turning to the Biggers factors, Martha and Jessica’s in-court identifications favor the admissibility of their testimony.

1. Martha

¶ 29. The first Biggers factor is the opportunity of the witness to view the criminal at the time of the crime. A spotlight was shining in Martha’s backyard when Isom was in the yard. Her house had motion-sensor lights which turned on in the backyard. Martha saw a black male attempt to jump the fence in the backyard and slip. When Isom slipped, Martha saw Isom because he looked straight at her. We find this factor favors admissibility.

¶ 30. The second Biggers factor is the witness’s degree of attention. Martha saw Isom for a few seconds and noticed that he had a “toboggan” on his head. She never saw Isom with a gun. When asked if she remembered seeing Isom’s face, Martha testified that she did because the spotlight was shining on his face. We find this factor favors admissibility.

¶ 31. The third Biggers factor is the accuracy of the witness’s prior description of the criminal. Martha stated that the person in her yard was a black male wearing a toboggan. We find this factor is in favor of admissibility.

¶ 32. The fourth Biggers factor is the level of certainty exhibited by the witness at the confrontation. Martha testified that she remembered seeing his face. We find this factor in favor of admissibility-

¶33. The fifth Biggers factor is the time between the crime and the confrontation. The crime occurred on December 26, 2003. Martha identified Isom in court in January 2005, more than one year after the events. We find this factor favors Isom.

2. Jessica

¶ 34. The first Biggers factor is the opportunity of the witness to view the criminal at the time of the crime. The motion-sensor lights came on around the house. Jessica saw a man running in the front of her yard. She went to the back of the house, and the motion-sensor spotlight was shining in the backyard. Jessica saw a black male crouched by the fence. The male then tried to jump the fence. The next day Jessica saw the male in the backyard again. We find this factor favors admissibility.

¶ 35. The second Biggers factor is the witness’s degree of attention. Jessica saw the male, whom she later identified in-court as Isom, in her yard when the spotlight was shining on him. She noticed that he had a “do rag” on his head. Jessica also stated that she had a good look at the suspect. We find this factor favors admissibility.

¶ 36. The third Biggers factor is the accuracy of the witness’s prior description of the criminal. Jessica testified that the person in her yard was a black male wearing a “do rag.” She also saw Isom the next day in her yard. We find this factor is in favor of admissibility.

¶ 37. The fourth Biggers factor is the level of certainty exhibited by the witness at the confrontation. Jessica identified Isom at trial and stated that she had a good look at him. We find this factor favors admissibility.

¶ 38. The fifth Biggers factor is the time between the crime and the confrontation. The crime occurred on December 26, 2003. Jessica identified Isom in court on January 21, 2005, more than one year after the events. We find this factor favors Isom.

¶ 39. All of the five Biggers factors, except the fifth factor, the time between the crime and the confrontation, favor admissibility in this case. Looking at the totality of the circumstances, substantial and credible evidence supported the trial court’s ruling to admit the evidence. We find the testimony was sufficient for the identification to be admissible without any likelihood of misidentifieation or irreparable identification. We find this issue is without merit.

III. Sentencing.

¶40. Isom argues that the trial court abused its discretion by sentencing him to the maximum sentence pursuant to Miss. Code Ann. § 97-17-23. In addition, Isom claims that the trial judge relied on his own findings of fact as aggravating factors, instead of a jury’s findings, to enhance and justify “a long prison sentence.” Isom relies is large part upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) for authority.

¶ 41. “Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Wall v. State, 718 So.2d 1107, 1114 (Miss.1998)(quoting Hoops v. State, 681 So.2d 521, 537 (Miss.1996)); Berry v. State, 722 So.2d 706, 707 (Miss.1998). In Fleming v. State, 604 So.2d 280, 302 (Miss.1992), this Court held that the general rule in Mississippi is that a sentence that does not exceed the maximum term allowed by the statute cannot be disturbed on appeal. However, this Court will review a sentence that allegedly imposed a penalty that is disproportionate to the crime. Id.

¶ 42. Miss.Code Ann. § 97-17-23 provides as follows:

Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by imprisonment in the Penitentiary not less than three (3) years nor more than twenty-five (25) years.

(Emphasis added).

¶ 43. The maximum sentence permitted under Miss.Code Ann. § 97-17-23 for the burglary of a dwelling house is twenty-five years. The trial court sentenced Isom to twenty-five years, five years suspended and twenty to serve, which is clearly within the proscribed period of incarceration. As Mississippi case law provides, sentencing is at the discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute. Wall, 718 So.2d at 1114; Berry, 722 So.2d at 707; Fleming, 604 So.2d at 302.

¶ 44. Isom asserts that the trial judge enhanced Isom’s sentence and based the sentence on his own findings of fact as to aggravating factors rather than the findings of a jury. In support of this assertion, Isom cites to three excerpts from the trial record. The first reference concerns a page of the transcript that “references the investigation of the probation department as to aggravating factors.” It is unclear from Isom’s brief how this reference harmed Isom. The record reflects that the trial court had a pre-sentence report prepared by the Department of Corrections. In Ferrell v. State, 810 So.2d 607, 612 (Miss.2002), this Court held that “[a] defendant’s constitutional rights are not violated when a sentencing court considers the information contained in a pre-sentence investigation report in determining what sentence to impose.”

¶ 45. Isom objected to certain pages of the report. The State made no objection, and the trial court allowed the information to be redacted from the report. Isom was allowed to make a statement to the trial court. Part of his statement was made to clarify any problem with the pre-sentence report. The trial court stated that it reviewed the investigation report, however, it would “take that into consideration as may be appropriate subject to the revisions that are being made here today.” (Emphasis added). Therefore, we find the trial court indicated that it would not consider these redacted portions of the report. In addition, Isom had an opportunity to make a statement to the judge.

¶ 46. Isom cited two other points made by the trial court. The trial court stated that the circumstantial proof indicated that Isom was armed at the time of the burglary. The record reflects that Szerkins and the Everitts testified about a gun. Szer-kins testified that when Isom learned that the police were coming to the apartment where he was hiding, Isom showed a group of people a gun and stated that he could not get caught with a gun. Martha and Jessica saw Isom in their yard on the night of the burglary. The next day Jessica saw Isom in her yard again, and Martha walked around the yard and found a gun.

¶47. Isom also cites the trial judge considering that Isom did not accept responsibility for the crime. Indeed, Isom admitted in the sentencing phase that he did not take responsibility for a crime. However, he did take responsibility for placing himself around certain people and in an environment which resulted in his “situation,” that being his criminal proceeding.

¶ 48. In Jackson v. State, 551 So.2d 132, 149 (Miss.1989), this Court held:

Our law has long provided that the imposition of sentence following a criminal conviction is a matter within the discretion of the Circuit Court, subject only to statutory and constitutional limitations. So long as these are not offended, we rarely interfere. Moreover, the Court is not limited, to the consideration of evidence presented of record at trial when imposing sentence.

(Emphasis added).

¶ 49. Isom’s reliance on Apprendi and Blakely is misplaced. Isom cites to Ap-prendi for the proposition that “[ojther than the fact of a prior conviction, any fact that increases a penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” Apprendi 530 U.S. at 490, 120 S.Ct. 2348. The statute at issue in Apprendi had an enhancement sentence for hate crimes. The United States Supreme Court found that the jury was to determine if the sentence should be enhanced. Id.

¶ 50. Isom relies upon Blakely for its clarification of the term “statutory maximum.” In Blakely, 542 U.S. at 303-04, 124 S.Ct. 2531, the Unites States Supreme Court held:

Our precedents make clear, however, that the “statutory maximum” for Ap-prendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [See] Ring [v. Arizona, 536 U.S. 584, 592-593, and n. 1, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)], (“ ‘the maximum he would receive if punished according to the facts reflected in the jury verdict alone’ ” (quoting Apprendi supra, [530 U.S.] at 483, 120 S.Ct. 2348)); Harris v. United States, 536 U.S. 545, 563, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (plurality opinion) (same); cf. Apprendi supra, at 488, 530 U.S. 466, 120 S.Ct. 2348,147 L.Ed.2d 435 (facts admitted by the defendant). In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” [1 J.] Bishop, [Criminal Procedure § 87, p. 55 (2d ed; 1872)], and the1 judge exceeds his proper authority.

¶ 51. We find that the statute applicable to Isom’s crime of burglary of a dwelling is distinguishable from Apprendi and Blakely. Isom was found guilty by a jury pursuant to Miss.Code Ann. § 97-17-23 which has no sentence enhancement provision. In other words, there is no increased or enhanced punishment pursuant to Miss.Code Ann. § 97-17-23 upon a finding of aggravating factors.

¶ 52. In this case, Isom was indicted for burglary of a dwelling house. This crime carries a maximum sentence of twenty-five years imprisonment. Clearly, because Isom was found guilty of burglary of a dwelling house, he could be sentenced to twenty-five years imprisonment for this crime within the guidelines set forth in the applicable statute. We find there was no abuse of discretion by the trial judge in sentencing Isom. The twenty-five year sentence, with five years suspended and twenty years to serve, was within the limits set forth by the statute. The' trial judge redacted and did not consider a portion of the investigation report at Isom’s request. There was testimony that Isom had a gun on the night of the burglary. Further, consideration by the trial judge that Isom did not accept responsibility for his actions was proper. See Jackson v. State, 551 So.2d at 149. We find the issue is without merit.

CONCLUSION

¶ 53. We find that the conviction and sentence of the Circuit Court of Lafayette County, Mississippi is affirmed.

¶ 54. CONVICTION OF BURGLARY OF A DWELLING . AND SENTENCE OF TWENTY-FIVE (25) YEARS, WITH TWENTY (20) YEARS TO SERVE, FIVE (5) YEARS SUSPENDED AND FIVE (5) YEARS ON POST RELEASE SUPERVISION, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAYMENT OF ALL COSTS, AFFIRMED.

SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. COBB, P.J. AND DIAZ, J., NOT PARTICIPATING.

      . In the motion in limine and Motion for J.N.O.V., defense counsel outlines the dates that he received information from the district attorney's office. He refers to "Wednesday, January 18, 2005” in the motions. This appears to be an slight oversight as January 19 was a Wednesday, not January 18.

      . In the body of this issue, Isom’s main complaint of a discovery violation relates to the testimony of Jessica and Martha. However, in the summary of his argument, he cites to "a raft of photographs and other evidence.” The trial court admitted a number of photographs and aerial pictures of the apartment crime scene and the Everitts's home and yard. The witnesses testified to the photographs and used the photographs to describe the various areas. Likewise the aerial photographs were used by the witnesses to describe where the two apartment complexes were located in relationship to one another. The admission of these exhibits simply illustrated the locations that each witness described in his or her testimony and was not prejudicial.


source: Caselaw Access Project

author: COBB, Presiding Justice,

license: Public Domain

text:
    William Russell THOMS v. Hank THOMS.
    No. 2004-IA-02429-SCT.
    Supreme Court of Mississippi.
    May 11, 2006.

      Marty Craig Robertson, attorney for appellant.
    H.J. Davidson, Jr., Columbus, attorney for appellee.
    Before COBB, P.J., CARLSON and GRAVES, JJ.
   COBB, Presiding Justice,

for the Court.

¶ 1. This case is before this Court oh interlocutory appeal filed by William Russell Thoms (Rusty) from an Order for Genetic Testing entered by the Oktibbeha County Chancery Court. Hank Thoms (Hank), cousin to Rusty, had filed a Petition for Determination of Paternity and for Other Relief seeldng to know whether he was the father of a child whom Rusty had been raising as his own since birth. The chancery court ordered Hank, the child, and Wendy Thoms, the natural mother, to submit to genetic testing, and further ordered that if the test indicated Hank as the probable father, Rusty must also be tested. Aggrieved, Rusty filed his interlocutory appeal, which this Court granted together with a stay of the testing.

FACTS AND PROCEDURAL HISTORY

¶ 2. Three suits were filed soon after Rusty learned his wife was having an affair with his cousin, Hank Thoms, and that one of the children he had been raising as his own, might be Hank’s son. The first, an alienation of affection suit filed by Rusty against Hank in Rankin County Circuit Court, and the second, a divorce action filed by Rusty against Wendy in the Oktib-beha County Chancery Court, were still pending at the time of the present interlocutory appeal arising from the third suit. Rusty argues generally that genetic testing would result in irreparable injury to one or both of the children involved. Specifically, he raises four issues, asserting that the trial court erred by: (1) entering the order for genetic testing without first making a determination of the best interests of the child; (2) failing to appoint a guardian ad litem before paternity testing; (3) failing to apply the doctrines of clean hands, laches, and equitable estoppel to bar Hank’s request for genetic testing; and (4) requiring Rusty to submit to DNA testing if test results indicate a probability of paternity that Hank is the child’s father. Hank asks only that his right to a paternity test be determined by this Court, and that the paternity action proceed in the trial court after the test results are known. We affirm the trial court and remand for further proceedings consistent with this opinion.

ANALYSIS

I. Whether the trial court erred when it entered the Order For Genetic Testing before applying the best interest of the child standard.

¶ 3. A Chancellor’s findings are not to be disturbed unless the chancellor is manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Ferrara v. Walters, 919 So.2d 876, 881 (Miss.2005). The standard of review with respect to the chancellor’s decision to order a paternity test is manifest error. Sanderson v. Sanderson, 824 So.2d 623, 626 (Miss.2002).

¶ 4. Rusty first argues that the trial court erred in ordering genetic testing because the court did not first engage in fact-finding to determine whether a paternity test would be in the child’s best interest, invoking the foundational “best interest of the child” rule present throughout Mississippi jurisprudence in cases involving children. He cites Dept. Of Human Services v. Jones, 627 So.2d 810, 811 (Miss.1993) for this well established rule, but presents no authority which supports his argument that the best interest determination must be made first, before the genetic testing is done. Rusty relies entirely on Griffith v. Pell, 881 So.2d 184 (Miss.2004) and the cases cited therein for his assertion that the “best interest” standard be applied before the testing, but his reliance is misplaced, as discussed infra.

¶ 5. Hank responds by pointing out that Miss.Code Ann. Section 93-9-21(2) (Rev.1999), provides in its entirety, that “[t]he court, on its own motion or on motion of the plaintiff or defendant, shall order the mother, the alleged father and the child or children to submit to genetic tests and any other tests which reasonably prove or disprove the probability of paternity.” (Emphasis added.) In Ivy v. Harrington, 644 So.2d 1218, 1221 (Miss.1994), this Court noted that Section 93-9-21 was amended in 1987 to allow a putative father, plaintiff in a paternity action, to move for an order requiring blood tests. The Ivy Court went on to say that the word “shall” is a mandatory directive, and thus no discretion is afforded the trial judge, and the motion for paternity must be granted. Id. at 1221.

¶ 6. Hank also asserts the importance of genetic testing to determine such issues as inheritance rights and assessment of medical predispositions. Finally, Hank correctly argues that the best interest of the child should be considered only after the results of the genetic test. He cites the Griffith decision, also relied upon by Rusty, that holds that the best interest of a child, which is at the heart of a paternity action, would be best addressed in the divorce proceeding, not in the paternity action. 881 So.2d at 186.

¶ 7. Statutory construction of the plain language of Miss.Code Ann. Section 93-9-21(2), cited by the trial court as authority for its ruling, constrains us to conclude that the word “shall” is a mandatory directive. As a consequence, in a proceeding to establish paternity, upon motion by either the plaintiff or defendant for an order requiring blood tests, the trial judge must grant the motion. Even if a trial court determined it was not in the child’s best interests to require a paternity test, all that is necessary, under the statute as it currently exists, is for either the plaintiff or defendant in a suit regarding paternity to move for a test to be done. No discretion is afforded. Notwithstanding the breadth and depth and importance of the “best interest of the child” doctrine in Mississippi jurisprudence, the legislature was very clear in its unconditional amendment of 93-9-21. Unless and until that body sees fit to change it, we are bound by it. Notwithstanding good arguments to the contrary in this situation, the trial court and this Court must follow the mandate of the legislature.

¶ 8. Because we affirm the trial court on this first issue, on statutory grounds, we do not address issues two and three raised by Rusty, regarding clean hands, laches, equitable estoppel, and the appointment of a guardian ad litem. These issues, in a different context, and different arena, will be appropriate for consideration by the trial court after receiving the results of the genetic testing.

II. Whether requiring Rusty to submit to DNA testing is a violation of his Constitutional right against unreasonable search and seizure under the United States and Mississippi Constitutions.

¶ 9. The standard of review for Constitutional issues is de novo. Baker v. State, 802 So.2d 77, 80 (Miss.2001). Likewise, the standard of review for constitutionality of Mississippi statutes is also de novo. Austin v. Wells, 919 So.2d 961, 964 (Miss.2006).

¶ 10. The trial court held that, if the DNA tests of Wendy and the child indicate a probability of paternity for Hank, then Rusty must also submit to DNA testing. Rusty asserts in his brief that requiring him to submit to DNA testing is an unreasonable search and seizure under the United States and Mississippi Constitutions, but cites no law that supports this contention. Additionally, Rusty claims there are no provisions in our Uniform Law on Paternity, codified in Miss. Code Ann. Sections 93-9-1 through 93-9-49, which would allow for him to be compelled to submit to DNA testing under the circumstances in the present ease.

¶ 11. The court order requiring Rusty to submit to testing is not absolute; instead, it is dependent on the outcome of Hank’s results. The order states:

It is further ordered that if the results of the testing of the Plaintiff shall exclude his paternity no further testing shall be conducted. If the results of the testing of the Plaintiff shall indicate a probability of paternity for Plaintiff, it is further ordered that Reliagene shall draw a genetic sample from the Defendant William Russell Thoms and determine the probability of William Russell Thoms.

There is a distinct possibility that Rusty may never be required to undergo genetic testing. Thus this issue is premature and not ripe for appellate review, and we decline to address it today.

¶ 12. On remand, the testing of Hank, the mother and the child may be conducted. However, should the results indicate, as stated in the trial court order, “a probability of paternity for Hank”, Rusty may develop the constitutionality issue before the trial court.

CONCLUSION

¶ 13. This Court determines Rusty’s arguments are without merit with regard to issues one, two, and three, and we affirm the portion of the Order for Genetic Testing as it applies to Hank, Wendy, and the child. We further determine that the constitutionality issue is premature and not ripe for appellate review. We remand to the trial court for further proceedings consistent with this opinion.

¶ 14. AFFIRMED AND -REMANDED.

SMITH, C.J., WALLER, P.J., CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Rusty and Wendy have another child, who is not included in the underlying paternity action.


author: EASLEY, Justice,

text:
    PATRIOT COMMERCIAL LEASING CO. v. JERRY ENIS MOTORS, INC. d/b/a Magnolia Chevrolet-Buick-Pontiac.
    No. 2005-CA-01119-SCT.
    Supreme Court of Mississippi.
    May 11, 2006.

      Scott W. Hunter, Walter Michael Gillion, attorneys for appellant.
    Michael Davis Jonas, Candace Cooper Blalock, attorneys for appellee.
    Before SMITH, C.J., EASLEY and GRAVES, JJ.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. Patriot Commercial Leasing Co. (Patriot) sought to enroll a foreign judgment against Jerry Enis Motors, Inc. (Enis) obtained in the Court of Common Pleas in Montgomery County, Pennsylvania, styled Patriot Commercial Leasing Co. v. Jerry Enis Motors, Inc., d/b/a Magnolia Chevroletr-Buick-Pontiac, case number 03-14790. On July 7, 2004, Patriot filed a notice of filing in the Circuit Court of Monroe County, Mississippi, attached with the authenticated foreign judgment and affidavit. The attached certified foreign judgment indicated a judgment “in the amount of $51,603.39, in favor of the Plaintiff, PATRIOT COMMERCIAL LEASING CO., and against the Defendant, MAGNOLIA CHEVROLET-BUICK-PONTIAC, a/k/a JERRY ENIS MOTORS, INC.”

¶2. The record also reflects that attached to the judgment is a certified copy of a praecipe to enter default judgment, styled Patriot Commercial Leasing Co. v. Jerry Enis Motors, Inc. d/b/a Magnolia Chevrolet-Buickr-Pontiac, case number 03-14790, filed by Patriot’s attorneys, Robert E. Walton and Robert R. Watson, Jr., with the Prothonotary, Court of Common Pleas, Montgomery County, Pennsylvania, which assessed damages as follows:

Accelerated debt $ 38,756.25
Interest from May 22, 2003
($38,765.25 x .18 x 123/365 days) $2[,3350.86
Subtotal $ 41,107.11
25% attorney’s fee per Complaint $ 10,276.78
Actual Costs (filing fee) $ 219.50
Total: $ 51,603.39

¶ 3. Scott W. Hunter, Patriot’s attorney licensed in Mississippi, provided the affidavit attached to the foreign judgment pursuant to Miss.Code Ann. § 11-7-305. The affidavit provided: (1) “Patriot Commercial Leasing Co. filed a lawsuit against Jerry Enis Motors, Inc., in the Court of Common Pleas in Montgomery County, Pennsylvania, case no. 03-14790” and (2) “[o]n September 24, 2003, judgment was entered against Defendant in favor of Plaintiff in the case, in the amount of $51,603.39.”

¶ 4. Enis filed a motion to strike the affidavit of Patriot’s counsel and noticed hearing on the motion. Patriot responded to the motion to strike the affidavit. On July 21, 2004, Enis filed a motion to dismiss Patriot’s efforts to enroll the foreign judgment. Enis’s motion to dismiss provided Patriot obtained the foreign judgment without securing jurisdiction over Enis. On July 21, 2004, Enis filed a memorandum of authorities and an argument with attached exhibits in support of the motion to dismiss.

¶ 5. On July 28, 2004, the trial court sua sponte ordered that Enis had twenty days to file an amended motion setting forth all of its intended defenses to the enrollment of the foreign judgment. Patriot was ordered to file any response which it deemed necessary to the amended motion within the following twenty days. The trial court ordered, “thereafter, either party may present such other relevant evidence to the Court at a hearing on the amended motion that will be set on application by either party.”

¶ 6. Enis filed a motion seeking leave from the trial court to file a third-party complaint against Wayne Lemons (Lemons). Enis filed the third-party complaint against Lemons. Lemons filed a response to Enis’s third-party complaint.

¶ 7. Patriot filed its supplemental response to Enis’s motion to dismiss. Enis subsequently filed its reply to Patriot’s supplemental response. Patriot then filed a response to Enis’s reply. A hearing was set and noticed on Enis’s motion to dismiss. The trial court continued the hearing in order to grant the parties additional time to submit any affidavits or other documentary evidence and to allow Enis leave to depose Lemons and submit the transcript of the deposition. The trial court ordered that the parties had thirty days to submit the items stated, after which, the trial court would enter its ruling on the issues presented by the pleadings and proof.

¶ 8. Enis filed its submission of final affidavit and accompanying argument. Upon receiving a transcript of Lemons’s deposition, Enis submitted the deposition to the trial court. Patriot subsequently submitted its response to Enis’s submission of final affidavit and accompanying argument. The trial court entered its order granting Enis’s motion to dismiss. The trial court stated:

Having reviewed and considered the pleadings, all evidentiary matters before the Court, authorities of law submitted by, and arguments of counsel, the Court is of the opinion, and so finds, that the rendering court in this case, The Court of Common Pleas in Montgomery County, Pennsylvania, in civil action number 03-14790, did not have personal jurisdiction over the Defendant (Enis) and, therefore, the judgment of the foreign court is not entitled to full faith and credit in this State.

FACTS

¶ 9. Jerry Enis (Jerry) formed Jerry Enis Motors, Inc., (Enis) in 1980 as a Mississippi corporation. Jerry was the corporation’s principal stockholder, a director, the president of the board of directors, president and chief executive officer of the corporation, and the sole and only registered agent of the corporation to accept service of process on the corporation. Enis ceased to operate the dealership on June 3, 2002. The dealership was sold to Magnolia Automotive Management, Inc. (Magnolia), a Mississippi corporation. However, Magnolia did not have a GM dealership number required to purchase new GM vehicles. Enis entered a management agreement with Magnolia and Lemons to allow Magnolia to use its GM dealership number to order new vehicles until Magnolia was approved by GM as a dealership. When Magnolia was approved by GM, the sale of the dealership would be concluded.

¶ 10. On June 3, 2002, Lemons and Magnolia entered into a management agreement with Enis to undertake the management of Enis’s dealership upon the terms and conditions stated in the management agreement. (As it relates to the discussion of the management agreement, Lemons and Magnolia will be referred to collectively as Magnolia-Lemons.) Magnolia-Lemons was to provide its own operating capital and not cause Enis to fall into default with the new car manufacturers or with any floor plan financier or other vendor or party. The revenues produced and the net profits and/or losses from the operation of the dealership from and after June 3, 2002, belonged to Magnolia-Lemons.

¶ 11. Pursuant to the terms of the agreement, Magnolia-Lemons was obligated to pay any and all operational expenses of the dealership incurred on or after June 3, 2002, of whatever nature, including but not limited to, floor plan interest, salaries, wages, utility bills, insurance, professional fees, advertising, taxes, rents, leases on equipment and property, the cost of all vehicles, parts and accessories and all other expenses whether of a general, sales or administrative nature which are incurred by Magnolia-Lemons. Enis exercised no authority over the operation of Magnolia-Lemons. Magnolia-Lemons made all hiring and firing decisions and was responsible for all operating costs.

¶ 12. During the term of the contract, Magnolia-Lemons was only authorized to order all parts and new cars through Enis’s dealership number, and Magnolia-Lemons was fully authorized and empowered to use the said dealership number for these purposes as if it belonged to Magnolia-Lemons. The agreement provided that the stated use of the dealership number was the only legitimate business use authorized. In Lemons’s deposition, he testified that Magnolia’s only legitimate business use of Enis’s name was to deal with GM and buy new cars and parts. The agreement stated upon the close of the sale of the assets the agreement shall cease and terminate and shall become null and void.

¶ 13. On January 10, 2003, a software lease application was generated that would upgrade other software equipment already under lease to Magnolia and incorporated Magnolia’s outstanding debt on its old software application. The lease agreement was between Magnolia Chevrolet Buick Pontiac and Patriot Commercial Leasing Company. The record does not reflect that Enis ever had any contact with Patriot or had ever previously purchased any software from Patriot. The software lease was executed by Brian Vonderkeide on behalf of Magnolia. Vonderkeide was an employee and twenty-percent owner of Magnolia. Enis was not mentioned in the lease, and Vonderkeide had no connection to Enis. The lease agreement provided that Magnolia would submit to the jurisdiction of the Pennsylvania courts in the event of a dispute.

¶ 14. On January 15, 2003, Derek Holl-ingsworth, another employee and ten-percent owner of Magnolia, executed an addendum to the lease agreement for auto loan 2000 software to change the lessee from Magnolia to Enis as the lessee of the software. No reason is provided in the record for executing the addendum. The addendum stated, “[t]he lease and all other documents given in conjunction therewith shall now read: JERRY-ENIS MOTORS, INC.” Enis and Lemons both maintained that Hollingsworth had no authority to list Enis in the addendum. Lemons testified in his deposition that neither Vonderkeide nor Hollingsworth had any connection to Enis and both lacked authority to enter any lease agreement on behalf of Magnolia. Jerry’s signature is not anywhere on the addendum to change the lessee from Magnolia to Enis. Likewise, Lemons’s signature is nowhere on the addendum. No documentation to support a change in the name of the lessee was attached to the form. Furthermore, no correspondence is contained in the record from Patriot inquiring about the change in the name of the lessee.

¶ 15. On February 14, 2003, Enis and Magnolia entered into a closing agreement for the sale of Enis’s assets to Magnolia. The closing agreement stated that Magnolia had obtained dealership approval from GM. As such, the agreement allowing use of Enis’s dealership number terminated on February 14, 2003, and Magnolia no longer needed to use Enis’s dealership number. The sale of Enis to Magnolia on June 3, 2002, was finalized on February 14, 2003, in the closing agreement.

¶ 16. The record does not reflect when Patriot filed its complaint in Pennsylvania, nor does it contain a copy of Patriot’s complaint in Pennsylvania. However, the disputed service of process occurred on August 18, 2003. The record does not reflect that the process server was ever deposed or provided an affidavit in connection with the proceedings at hand. The record contains only a copy of an affidavit of service upon “Defendant, Jerry Enis Motors, Inc. d/b/a Magnolia Chevrolet-Buick-Pontiac” dated August 20, 2003.

¶ 17. The process server, whose name appears to be Herb Wells, stated that on August 18, 2003, he effected “personal service to [sic] Wayne Lemons co-owner at 2:30 p[.]m[.]” The copy of the affidavit of service in the record does not contain any more information as to the process server. From this limited information, Patriot’s attorney in Pennsylvania, Robert E. Walton, somehow provided an affidavit in which he stated:

Enis was personally served with a copy of the Complaint filed in this matter on August 18, 2003 by way of a process server handing a copy of the Complaint to Wayne Lemons who represented himself to be a co-owner of Enis and an authorized representative to accept service, which service satisfies the Pennsylvania Rules of Court for Personal Service of original process.

However, Lemons’s testimony disputes the assertion that he represented himself to be a co-owner of Enis authorized to accept process on Enis.

¶ 18. Lemons testified in his deposition that at the time he was served he was definitively not at Jerry Enis Motors’ place of business. Lemons testified if he was served at the dealership, then it was at the dealership of Magnolia, not Enis. Lemons did not recall telling the process server that he was a co-owner. However, if he did, it was the co-owner of Magnolia, not Enis. Lemons testified in his deposition that he was never at any time a co-owner of Enis.

¶ 19. A printout in the record from the Mississippi Secretary of State lists the registered agent of Jerry Enis Motors, Inc., as Jerry Enis. Prior to June 3, 2002, Enis had been a General Motors (GM) dealership operating at 317 Highway 45 North, Aberdeen, Mississippi. Likewise, a printout in the record from the Mississippi Secretary of State lists Lemons, a co-owner of Magnolia, as the sole registered agent for Magnolia. Neither Wayne Lemons nor Magnolia Automotive Management, Inc., were ever a co-owner of Jerry Enis Motors, Inc. Likewise, neither Jerry Enis nor Jerry Enis Motors, Inc., were ever a co-owner of Magnolia Automotive Management, Inc.

DISCUSSION

¶20. Enrollment and enforcement of foreign judgments in Mississippi are governed by statute. Miss.Code Ann. §§ 11-7-301-309; See Davis v. Davis, 558 So.2d 814, 816 (Miss.1990). In Davis, 558 So.2d at 817, this Court held:

This State is required by the United States Constitution, Art. IV, Sec. 1, to give full faith and credit to all final judgments of other states and federal courts unless (1) “the foreign judgment itself was obtained as a result of some false representation without which the judgment would not have been rendered” Reeves Royalty Co., Ltd. v. ANB Pump Truck Service, 513 So.2d 595, 598 (Miss.1987), or (2) “the rendering court did not have jurisdiction over the parties or the subject matter.” Sollitt v. Robertson, 544 So.2d 1378 (Miss.1989).

¶ 21. The lack of jurisdiction over the parties is the primary limitation that tempers application of full faith and credit of foreign judgements. Sollitt, 544 So.2d at 1381; Fauntleroy v. Lum, 210 U.S. 230, 237, 28 S.Ct. 641, 52 L.Ed. 1039, (1908) (want of jurisdiction over the person or the subject matter might be shown to deny full faith and credit).

¶ 22. As a general rule, in order to determine the validity of a foreign judgement, we must look to the law of the state that rendered the judgment. Lambert v. Lawson, 538 So.2d 767, 769 (Miss.1989). In Lambert, this Court stated:

[T]he full faith and credit clause applies only where the judgment of a foreign state is founded upon adequate jurisdiction of the parties and subject matter, Restatement 2nd, Conflict of Laws, §§ 104, 105, pp. 315-316 (1969); extrinsic evidence is admissible in a collateral attack upon a foreign judgment to show that it is void, Restatement, Judgments, § 12, p. 69 (1942); and a judgment which is void is subject to collateral attack both in the state in which it is rendered and in other states. Id. § 11, p. 65.

Id. (emphasis added). The standard of review for questions of law, such as questions concerning personal jurisdiction of courts, is de novo. Syngenta Crop Protection, Inc. v. Monsanto Co., 908 So.2d 121, 124 (Miss.2005); Starcher v. Byrne, 687 So.2d 737, 739 (Miss.1997) (“Our standard for review is de novo in passing on questions of law.”).

I. Agency-Apparent Authority

¶ 23. Enis argued to the trial court and on appeal that Patriot’s suit lacked personal jurisdiction as Magnolia was not Enis’s agent, had no express or contractual authority to bind Enis to the software lease as its agent, nor did Magnolia have apparent authority to bind Enis. Enis maintained that no principal-agent relationship of any kind existed. As such, Enis claims the wrong party was named in the lawsuit.

¶ 24. Enis contended that on June 3, 2002, Lemons and Magnolia entered into a management agreement with Enis to undertake the management of Enis’s dealership upon the terms and conditions stated in the management agreement. The actual contract or agreement specified that Magnolia-Lemons was only authorized to use Enis’s dealership number to purchase vehicles and parts from GM until it obtained its own dealership number. This was done to facilitate the sale of the dealership. Pursuant to the terms of the agreement, Magnolia-Lemons was obligated to pay any and all operational expenses of the dealership incurred on or after June 3, 2002, of whatever nature, including but not limited to, leases on equipment and property, which are incurred by Magnolia-Lemons. Enis exercised no authority over Magnolia-Lemons’s operations.

¶ 25. On February 14, 2003, Enis and Magnolia entered into a closing agreement to finalize the sale of Enis’s assets to Magnolia. Magnolia had obtained its own GM dealership number. The agreement allowing use of Enis’s dealership number terminated on February 14, 2003. On August 18, 2003, Patriot served Wayne Lemons with process in Patriot Commercial Leasing Co. v. Jerry Enis Motors, Inc., d/b/a Magnolia Chevrolet-Buick-Pontiac, case number 03-14790, in the Court of Common Pleas in Montgomery County, Pennsylvania.

¶ 26. Patriot argued at trial and on appeal that Magnolia had apparent authority as Enis’s agent to bind Enis, the principal, to the software lease agreement. Patriot argued it relied, to its detriment, on Magnolia’s apparent authority to bind Enis to the software lease agreement. As such, Patriot contends personal jurisdiction existed and the trial court erred in finding lack of personal jurisdiction.

¶ 27. The trial court in its bench opinion did not specifically address agency. However, Patriot made its agency argument in support of jurisdiction to the trial court, and Enis defended the assertion. The trial court determined Patriot did not have personal jurisdiction over the Defendant, Enis, and, therefore, the judgment of the foreign court was not entitled to full faith and credit in this State.

¶ 28. On appeal, Patriot correctly contends that Pennsylvania’s use of apparent authority is consistent with the laws of Mississippi regarding apparent authority under a theory of agency. In Basils v. H & R Block, Inc., 563 Pa. 359, 761 A.2d 1115, 1121 (2000), the Pennsylvania Supreme Court held:

The special relationship arising from an agency agreement, with its concomitant heightened duty, cannot arise from any and all actions, no matter how trivial, arguably undertaken on another’s behalf. Rather, the action must be a matter of consequence or trust, such as the ability to actually bind the principal or alter the principal’s legal relations. Indeed, implicit in the long-standing Pennsylvania requirement that the principal manifest an intention that the agent act on the principal’s behalf is the notion that the agent has authority to alter the principal’s relationships with third parties, such as binding the principal to a contract. Notably, the Restatement, which we have cited with approval in this area in the past, specifically recognizes as much. See Restatement (Second) of Agency § 12 (“An agent or apparent agent holds a power to alter the legal relations between the principal and third persons and between the principal and himself.”).

(Emphasis added).

¶ 29. An agency relationship exists and a principal is bound by the acts of the agent as against a third party where the agent had (1) express authority directly granted by the principal to bind the principal as to certain matters, (2) implied authority to bind the principal to those acts of the agent that are necessary, proper and usual in the exercise of the agent’s express authority, (3) apparent authority, i.e. authority that the principal has by words or conduct held the alleged agent out as having, and (4) authority that the principal is estopped to deny. See Bolus v. United Penn Bank, 363 Pa.Super. 247, 259, 525 A.2d 1215, 1221 (1987), alloc. denied, 518 Pa. 627, 541 A.2d 1138 (1988).

¶ 30. While a third party cannot rely on the apparent authority of an agent to bind a principal where he has actual knowledge of the limits of the agent’s authority, without such actual knowledge, the third party must exercise only reasonable diligence to ascertain the agent’s authority. Bolus, 525 A.2d at 1222 (citing Fishman v. Davidson, 369 Pa. 39, 44, 85 A.2d 34, 37 (1951)). Apparent authority is the “power to bind a principal which the principal has not actually granted but which he leads persons with whom his agent deals to believe that he has granted.” Revere Press, Inc. v. Blumberg, 431 Pa. 370, 375, 246 A.2d 407, 410 (1968).

¶ 31. Likewise, in Trident Corp. v. Reliance Ins. Co., 350 Pa.Super. 142, 504 A.2d 285, 288 (1986), the Superior Court of Pennsylvania further defined apparent authority as “the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other’s manifestations to such third persons.” See also Sauers v. Pancoast Personnel, Inc., 294 Pa.Super. 306, 309, 439 A.2d 1214, 1215 (1982) (“Apparent authority exists when the principal has led a third party into believing that the licensee was the principal’s agent.”)

¶ 32. In Travelers Cas. & Sur. Co. v. Castegnaro, 565 Pa. 246, 772 A.2d 456, 460 (2001), the Supreme Court of Pennsylvania stated that the principal is liable to third parties for acts of his agent. The Pennsylvania Supreme Court based the premise of liability upon the theory that the principal who has placed the agent in a position of trust and confidence, rather than an innocent stranger, should be the one to suffer the wrongful act of the third party. Id.

¶ 33. Similarly in Mississippi, this Court, in Steen v. Andrews, 223 Miss. 694, 78 So.2d 881, 883 (Miss.1955), stated:

The power of an agent to bind his principal is not limited to the authority actually conferred upon the agent, but the principal is bound if the conduct of the principal is such that persons of reasonable prudence, ordinarily familiar with business practices, dealing with the agent might rightfully believe the agent to have the power he assumes to have. The agent’s authority as to those with whom he deals is what it reasonably appears to be. So far as third persons are concerned, the apparent powers of an agent are his real powers. 2 C.J.S., Agency, §§ 95, 96.

¶34. This Court stated the standard to be applied in reviewing whether apparent authority existed as follows:

The finder of fact must determine whether there is sufficient evidence to meet the three-pronged test for recovery under the theory of apparent authority, which requires a showing of (1) acts or conduct of the principal indicating the agent’s authority, (2) reasonable reliance upon those acts by a third person, and (3) a detrimental change in position by the third person as a result of that reliance. Christian Methodist Episcopal Church v. S & S Construction Co., Inc., 615 So.2d 568, 573 (Miss.1993); Alexander, 609 So.2d at 403; Andrew Jackson, 566 So.2d at 1181; Clow, 356 So.2d at 582. Once made, “[t]his finding will not be disturbed unless clearly contrary to the overwhelming weight of credible evidence when viewed in the light most favorable to the verdict.” CME Church, 615 So.2d at 573, 574; Andrew Jackson, 566 So.2d at 1181.

Eaton v. Porter 645 So.2d 1323, 1325-26 (Miss.1994) (emphasis added). “There can be no apparent authority to act where an agency relationship, either actual, expressed, or implied does not exist.” XYO-QUIP, Inc. v. Mims, 413 F.Supp. 962, 966 (N.D.Miss.1976).

¶ 35. Here, the record does not demonstrate Enis by his conduct or words held Magnolia-Lemons out to be his agent to Patriot. Neither Jerry Enis nor Jerry Enis Motors, Inc., were ever a co-owner of Magnolia Automotive Management, Inc. Enis ceased to operate the dealership on June 3, 2002, and Enis entered a management agreement with Magnolia and Lemons which allowed Magnolia to use its GM dealership number only to order new vehicles and parts until Magnolia was approved by GM as a dealership. In Lemons’s deposition, he testified that Magnolia’s only legitimate business use of Enis’s name was to deal with GM and buy new cars and parts.

¶ 36. The software lease that would upgrade other software equipment already under lease to Magnolia was generated on January 10, 2003. According to the lease application, this lease consolidated an outstanding debt Magnolia already had with Patriot. The lease agreement was between Magnolia Chevrolet Buick Pontiac and Patriot Commercial Leasing Company, not Enis and Patriot. Enis never undertook any representation or action with Patriot to bind Enis to the lease. Likewise, Enis never represented to Patriot that Magnolia had authority to bind Enis to the software lease. On February 14, 2003, Enis and Magnolia entered into a closing agreement which finalized the sale of Enis’s assets to Magnolia. On August 18, 2003, Patriot served Lemons with a complaint against Jerry Enis Motors, Inc. d/b/a Magnolia Chevrolet Buick Pontiac.

¶ 37. Based on the record, Enis undertook no conduct to represent to Patriot that it was the lessee or that Magnolia-Lemons had any authority to bind it to a lease for software. Furthermore, no documentation or correspondence was attached or produced that demonstrated that Enis had assumed the lease. Patriot appears to have blindly and unjustifiably relied upon the addendum without any follow-up. The record does not reflect that Enis, or Jerry Enis, were ever contacted regarding the lease. Likewise, Jerry Enis, owner and registered agent of Enis, was never served with process. It is undisputed that by the time Patriot served Lemons on August 18, 2003, for failure to make lease payments, Enis no longer operated a dealership at that location. Enis never at any time assumed any ownership interest in Magnolia Automotive Management, Inc., Magnolia-Lemons, or Magnolia Chevrolet Buick Pontiac. Patriot allowed the lessee to just change the name of who should be obligated for the lease. However, Patriot’s bad business decision to blindly change the lessee name should not obligate Enis for Magnolia’s lease agreement. We find the trial court did not err in granting Enis’s motion to dismiss for lack of personal jurisdiction.

II. Service of Process

¶ 38. Enis also argued at the trial court lack of personal jurisdiction challenging the sufficiency of the service of process. Patriot contended at trial and argues on appeal that the service of process on Jerry Enis properly conformed to the method allowed under Pennsylvania. Enis counters on appeal that the service of process was fatally defective, and as such, Patriot lacked personal jurisdiction over Enis. Patriot served Lemons on August 18, 2003, with process in Patriot Commercial Leasing Co. v. Jerry Enis Motors, Inc., d/b/a Magnolia Chevrolet-Buick-Pontiac, case number 03-14790, filed in the Court of Common Pleas in Montgomery County, Pennsylvania. Jerry Enis was not served.

¶ 39. Patriot contends Enis was personally served with a copy of the complaint filed in this matter on August 18, 2003, by way of a process server handing a copy of the complaint to Lemons as a co-owner of Enis. Patriot argues the service of process on Lemons satisfied the Pennsylvania Rules of Civil Procedure for personal service of process.

¶ 40. “The rules relating to service of process must be strictly followed, and jurisdiction of the court over the person of the defendant is dependent upon proper service having been made.... ” Sharp v. Valley Forge Med. Ctr. and Heart Hosp., 422 Pa. 124, 221 A.2d 185, 187 (1966) (emphasis added). Therefore, defective service of process results in failure-to acquire jurisdiction over the person or party. The Pennsylvania Rule of Civil Procedure 402(a)(2)(iii) provides original process may be served as follows:

[B]y handing a copy
(iii) at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof.

(Emphasis added).

¶ 41. Proper service of process “upon a person in charge of a person’s business” is effected if there exists a “sufficient connection between the person served and the defendant to demonstrate that service was reasonably calculated to give the defendant notice of the action against it.” Cintas Corporation v. Lee’s Cleaning Services, Inc., 549 Pa. 84, 700 A.2d 915, 920 (1997); see also In re McElhatton, 729 A.2d 163, 167 (Pa. Commw.Ct.1999). The decisive factor in determining whether an individual is “in charge of the place of business” is whether there is a sufficient connection with the business. In re McElhatton, 729 A.2d at 167.

¶42. According to a printout in the record, the Mississippi Secretary of State listed the registered agent of Jerry Enis Motors, Inc., as Jerry Enis, not Wayne Lemons. Also, another printout in the record from the Mississippi Secretary of State listed Wayne Lemons as the sole registered agent for Magnolia Automotive Management, Inc. Neither Lemons nor Magnolia were ever a co-owner of Jerry Enis Motors, Inc. Likewise, neither Jerry Enis nor Jerry Enis Motors, Inc., were ever a co-owner of Magnolia. In his deposition, Lemons testified that at the time he was served he was definitively not at Jerry Enis Motors’ place of business. Lemons also testified that he never told the process server that he was a co-owner of Enis.

¶ 43. Enis and Magnolia entered into a closing agreement on February 14, 2003, for the sale of Enis’s assets to Magnolia. This finalized the sale from Enis to Magnolia. Magnolia had obtained its dealership number and no longer needed to use Enis’s to purchase vehicles. Lemons was served with process on August 18, 2003, months after the closing of the sale transpired. Enis no longer owned the property, and it was no longer Enis’s usual place of business. The place of business now belonged to Lemons who was a co-owner of Magnolia, not Enis. Enis never exercised any authority or control over Magnolia. Enis contends that Lemons did not have authority from Enis, or a sufficient connection with Enis, to accept process on behalf of Enis.

¶ 44. We find the service of process was defective. Clearly, Enis was not properly served. Pennsylvania law allows service by handing a copy of the summons and complaint at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof. Enis no longer operated a dealership at that location. As such, it was not Enis’s usual place of business, nor was Lemons at the time, or any time, in charge of Enis’s business there. Lemons testified that he never informed the process server that he was a co-owner of Enis. Pennsylvania law requires the rules relating to service of process must be strictly followed in order to confer jurisdiction. Here, the rules of service were not strictly followed. Without proper service of process, Patriot lacked personal jurisdiction over Enis. We find the trial court properly dismissed the action for lack of jurisdiction.

CONCLUSION

¶ 45. For the foregoing reasons stated herein, the judgment of the Circuit Court of Monroe County, Mississippi, is affirmed.

¶ 46. AFFIRMED.

SMITH, C.J., WALLER, P.J., CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., AND DIAZ, J., NOT PARTICIPATING.

      . At times, the parties' full names may be used through out the opinion to provide clarity-

      . Lemons testified in his deposition that to his knowledge his corporation, Magnolia, did not have an outstanding debt or existing lease with Patriot for software in his Nissan dealership or any of the other businesses.

      . Unlike the management agreement, the closing agreement did not reference Lemons, only Magnolia. As such, the name Magnolia will be used.

      .Magnolia-Lemons had use of Enis's GM dealership number from June 3, 2002, until February 14, 2003.


author: BARNES, J.,

text:
    Terry Louis WILLIAMS, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-01933-COA.
    Court of Appeals of Mississippi.
    Sept. 6, 2005.
    Rehearing Denied Jan. 17, 2006.
    Certiorari Denied May 11, 2006.

      John David Weddle, Tupelo, J. Dudley Williams, Aberdeen, attorneys for appellant.
    Before LEE, P.J., MYERS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Terry Louis Williams, Jr. was convicted of rape by a jury in the Monroe County Circuit Court and sentenced to twenty years in the Mississippi Department of Corrections. On appeal, he challenges the trial court’s supplemental instruction to the jury which defined “actual penetration”; he contends that the supplemental instruction singled out and gave undue prominence to evidence concerning penetration without re-instructing the jury as to the other elements needed to establish the offense of rape and that, when plainly read, the supplemental instruction stated that the offense was established by penetration alone. Finding no abuse of discretion in the court’s giving the supplemental instruction, we affirm.

STATEMENT OF FACTS AND COURSE OF PROCEEDINGS IN THE CIRCUIT COURT

¶ 2. N.B. testified that on March 7,1998, when she was fifteen years of age, the defendant, Terry Williams (Williams), aged eighteen, and Patrick Williams (Patrick) picked her up at her home with the express purpose of going to the house of her cousin in order that the female cousin and Patrick might be introduced. Instead of going to the cousin’s house, however, Williams picked up Patrick’s brother, Tito, and then drove to the Jr. Food Market where one of the men purchased beer. From there, they proceeded to the home of Timothy Howell. Although N.B. was hesitant to go inside the house as she was aware that Howell’s parents were not at home, she was eventually persuaded to get out of the car. The five watched television and drank a little beer. The men then went outside and smoked marijuana. When they returned, they began making sexually explicit remarks to N.B., grabbed her and took her to a back bedroom. Patrick and Timothy held N.B.’s arms while Tito and Williams, who had exposed themselves, pried her legs apart and held them down. N.B. began crying and asking the men to stop.

¶ 3. N.B. testified that Williams “was trying to force hi[m]self inside of me, but I was fighting, so he couldn’t really get it all the way in, but he got the head in ... [m]ore than once.” She further testified that in response to her “screaming, kicking, and fighting,” Williams slapped her and held his hand over her mouth to keep her from screaming. N.B. testified that Williams eventually stopped, and she “guessfed] ... he climaxed.” N.B. got up, threw on her clothes, and ran out of the house and down the street.

¶ 4. N.B. recounted that Williams caught up with her and told her that he was going to take her home. She agreed to let him take her home because “I didn’t know where I was. I didn’t know anyone in the neighborhood ... and I was afraid.” When asked why she would allow the man who raped her to take her home, she responded, “I just wanted to get home.” N.B. testified that during the ride, Williams told her he was sorry and that he did not want to go to jail. When she arrived home, N.B. immediately informed her mother that she had been raped; her mother called the police and followed instructions to take N.B. to the hospital in order that a rape test might be performed.

¶ 5. All four men were indicted on the charge of rape. Prior to trial, Patrick, Tito and Timothy pleaded guilty to conspiracy to commit rape and agreed to testify at any subsequent trial. Tito and Timothy were each sentenced to five years in prison with three years suspended, while Patrick was sentenced to five years probation.

¶ 6. Each of the three admitted to holding N.B. down in some manner before leaving the bedroom. Tito and Timothy both testified that Williams told the other men, “I got this,” at which point they left Williams and N.B. alone in the room. Patrick testified that he left the room sometime before. Thus, while all three men testified for the State, none actually saw Williams rape the victim as they had all left the room on or before Williams’s telling them, “I got this.” Patrick and Tito both testified that they heard N.B. laughing and then screaming. Timothy testified that he heard N.B. crying. Patrick testified that N.B. and Williams emerged from the bedroom three to five minutes after Tito and Timothy. Timothy testified that Williams informed him, “Nothing didn’t go on. Nothing didn’t go on.” Patrick testified that he told the police that Williams informed him that “he tried to put it in but couldn’t.”

¶ 7. Officer Quinell Shumpert, an investigator with the Aberdeen Police Department, testified that the rape test did not reveal the presence of semen and that there was no physical evidence of penetration. Officer Shumpert further testified that after being given a Miranda warning, Williams gave a statement to the effect that he went outside on the porch while the others were watching television and that sometime later N.B. “came out crying, upset, face ... red, her hair ... messed up” and asked him to take her home, which he did. Williams did not testify on his own behalf at trial.

¶ 8. By Instruction C-8, the court instructed the jury:

If you find from the evidence in this case beyond a reasonable doubt that:
1) The defendant ... did on March 7, 1998 ...
2) willfully, unlawfully, and feloniously;
3) Forcibly rape and ravish [N.B.];
4) By actual penetration of her private parts;
5) Without [N.B.]’s consent, then you may find the defendant ... guilty of rape.
If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the defendant ... not guilty.

Two of the court’s instructions informed the jury not to “single out” any particular instruction. C-l advised, “You, as jurors, are not to single out one instruction alone as stating the law, but you must consider these instructions as a whole.” Similarly, C-6 instructed:

If in stating the law to you, I have repeated any rule, direction, or idea, or if I have stated the same in varying ways, no emphasis is intended and you must not draw any inference therefrom. You are not to single out any certain witness or individual point or instruction and ignore the others.

¶ 9. Two-and-a-half hours into deliberations, the jury sent a note to the judge asking him to “Define actual penetration.” Over the objection of defense counsel, the judge responded by sending the jury a supplemental instruction that read as follows: “As to the definition of actual penetration, to establish the offense of rape, the State must prove beyond a reasonable doubt that there was some penetration of the victim’s vagina by the defendant’s penis, however slight.” The jury returned a verdict of guilty within eight minutes of receiving the supplemental instruction.

ISSUE AND ANALYSIS

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING THE SUPPLEMENTAL JURY INSTRUCTION

¶ 10. On appeal we consider only the issue of whether the supplemental instruction defining “actual penetration” was proper, or whether the court’s issuance of this instruction constituted reversible error. In regard to the appropriate standard of review for supplemental jury instructions, the Mississippi Supreme Court has stated:

Our inquiry ... is not whether the circuit judge ruled contrary to what one of us might have ruled, not whether he was “right” or “wrong” in our view, but whether he abused his discretion. And, unless the trial court based its decision on an erroneous view of the law, we are not authorized to reverse for an abuse of discretion unless we find it was “arbitrary and clearly erroneous.”

Mickell v. State, 735 So.2d 1031, 1033(¶ 7) (Miss.1999).

¶ 11. Our supreme court has also stated, “As a general proposition, the trial judge should not give undue prominence to particular portions of the evidence in the instructions.” Sanders v. State, 586 So.2d 792, 796 (Miss.1991). Any instructions that would amount to a comment on the weight of the evidence by emphasizing any particular testimony are improper. Mickell, 735 So.2d at 1083(¶ 9).

¶ 12. This ease presents a close question. On the one hand, the Mississippi Supreme Court has held that “instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context.” Howell v. State, 860 So.2d 704, 761 (¶ 203) (Miss.2003). In the instant case, the court’s instructions to the jury prior to their initial deliberations twice advised them not to “single out” any particular instruction.

¶ 13. On the other hand, our supreme court is “particularly sensitive to the danger that a supplemental instruction might cause a jury to single out and focus upon the point there presented and give it undue importance.” Wright v. State, 512 So.2d 679, 681 (Miss.1987). While “[njoth-ing in our law provides that once the jury retires, the trial judge should become a mute,” the propriety of supplemental instructions “often turn[s] on the manner in which they were presented to the jury.” Shaw v. State, 540 So.2d 26, 30 (Miss.1989) (quoting Wright, 512 So.2d at 681). In Wright, the conviction was affirmed where the supplemental instruction, which defined “breaking,” began with “one of the essential elements of the crime of burglary which must be proven beyond a reasonable doubt is a breaking” and concluded with an admonition to “[r]ead and consider this instruction along with your other instructions.” The court found that this final language “appropriately dealt with” the “problem normally attendant upon supplemental instructions....” Wright, 512 So.2d at 681. In Shaw, the court found no error in the supplemental instruction where the trial judge cautioned the jury to consider the new instruction along with the original instructions and not to single out any one instruction. Shaw, 540 So.2d at 30. In Thornton v. State, 841 So.2d 170, 177-78(¶ 34) (Miss.Ct.App.2003), one of the matters we considered in affirming the conviction was the trial court’s admonition before sending the jury back for further deliberations to “read and take all of these instructions as a whole. Although the court has reread two instructions and is giving a new instruction, you are not to single out any one instruction over the others, and they are to be considered as a whole.” In the instant case, the trial court only defined the term “actual penetration” without any prefatory comment that it was only one of the elements of the offense of rape or any concluding language cautioning the jury not to single out any one instruction.

¶ 14. The question in this case is whether the circuit judge abused his discretion in issuing the supplemental instruction without prefatory and/or concluding language similar to that found in Wright. Under the circumstances of this case, we think not.

¶ 15. As stated above, the trial judge granted a supplemental instruction defining “actual penetration” at the jury’s specific request. Had the jury not been following instruction C-8 which listed all of the elements of the offense of rape, they would not have known to ask for the definition. Williams claims that giving the supplemental instruction was an abuse of discretion because the instruction gave undue prominence to evidence concerning penetration without re-instructing the jury as to the other elements needed to establish the offense of rape and that, when plainly read, the supplemental instruction stated that the offense was established by penetration alone. While it certainly would have been better procedure to remind the jury that penetration was only one element of the offense and that all of the instructions, including the supplemental one, should be considered as a whole, we cannot find reversible error.

¶ 16. We also find that, while there is no prefatory language as extensive as that in Wright, the court did unmistakably tie the supplemental instruction to the other elements of rape listed in the original instructions. The supplemental instruction began with the language “[a ]s to the definition of actual penetration, .... ” (emphasis added). This language showed that the supplemental instruction was not meant to encompass the entire offense of rape. Rather, it was merely an explanation and clarification of one of the elements listed in the original jury instructions.

¶ 17. The jury request makes it clear that the jury was struggling only with the definition of actual penetration. “Actual penetration” was not defined in any of the initial jury instructions, but it was listed among the elements of rape in jury instruction C-8. The jury did not question the judge as to any of the other elements of rape which were given in jury instruction C-8. This Court can only assume that the jury had evaluated all of the other elements of rape fairly and objectively, and that the jury understood these other elements of rape and felt those elements had been met. The only element of rape of which the jury was uncertain was “actual penetration,” so they requested a definition. The trial judge gave a correct definition of “actual penetration” to the jury based on decisions of the Mississippi Supreme Court. The jury had been twice instructed prior to initial deliberations to read all instructions together and to not single out one instruction from the others. We find that since “actual penetration” was not defined previously for the jury, that this instruction was proper so that the jury could make an informed and careful decision regarding Williams’s guilt.

¶ 18. The decisions of other jurisdictions are consistent with our opinion. In State v. Forbes, the Tennessee Court of Criminal Appeals acknowledged that a trial court has authority to respond to jury questions with supplemental instructions, and added “[wjhile the better procedure is to admonish the jury not to place undue emphasis on the supplemental instruction and to consider it in conjunction with the entire charge, it is not necessarily reversible error to fail to do so.” State v. Forbes, 918 S.W.2d 431, 451-52 (Tenn.Crim.App.1995) (citing State v. Chance, 778 S.W.2d 457, 461-62 (Tenn.Crim.App.1989)). In that case, as in the instant case, a supplemental instruction had been delivered to the jury without specific language warning against the placement of undue emphasis on the instruction. Id. at 452. The court found that, “while the supplemental instruction should have included an admonishment to place no undue emphasis upon it, the main charge to the jury included an instruction not to single out one instruction over any other.” Id. Thus, the court found no reversible error. Id.

¶ 19. The Louisiana Court of Appeals addressed this issue in State v. Bunley, 805 So.2d 292 (La.Ct.App.2001), wherein the jury requested a re-instruction after deliberations had begun. Id. at 302. The defendant argued that the court did not issue the re-instruction with the proper prefatory language, thereby confusing the jury. Id. The court found that the question was whether it was “reasonably likely” that the jury misunderstood the challenged instruction, not simply whether the jury may have possibly misunderstood the in-straction. Id. (citing State v. Lennon, 661 So.2d 1047, 1049 (La.Ct.App.1995)). The court further noted that the instructions as a whole should be considered in making this determination, including any instructions given at the outset of deliberation. Id. at 303. The instruction given at the outset included language that the jury “must not single out any one of these instructions and disregard others:” Id. When considered in light of the original instructions, including the foregoing instructive language, the Louisiana Court of Appeals found that the jury could not reasonably have been confused by the supplemental instruction. Id.

¶ 20. Williams also argues that the trial judge’s instruction plainly said that only actual penetration is needed to establish the offense of rape. This is simply not so. The jury had been previously instructed, via instruction C-8, on all of the elements needed to establish rape. Unless the jury was following that instruction, the panel never would have known to ask for the definition of “actual penetration.” The trial judge responded to the inquiry that, “as to the definition of actual penetration,” rape is established by even slight penetration. When this instruction is read in light of the other instructions, it is clear that the jury was adequately informed that, in order to convict Williams of rape, the panel must determine that there was actual penetration without the consent of N.B. Therefore, we find the trial judge did not single out a particular portion of the evidence by defining “actual penetration”; the jury did that in requesting the specific definition.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY OF CONVICTION OF RAPE AND SENTENCE OF TWENTY YEARS WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO REGISTER AS A SEX OFFENDER UPON RELEASE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The defendant, Terry Williams, is not related to Patrick Williams or his brother, Tito.

      . On appeal the State contends that Williams's objection to the supplemental instruction at trial was insufficient to preserve the issue for appeal. Counsel's objection stated that the definition of "actual penetration” was a question of fact, not law, and that, regardless of the definition, the supplemental instruction should have been given at the beginning of jury deliberations with the original instructions. We believe that the second part of this objection was sufficient to preserve the issue for appeal, and we decline to impose a procedural bar. We observe, however, that had defense counsel given a more detailed argument, similar to the argument he raises on appeal, the trial judge would have been given an opportunity to include more extensive prefatory and concluding language in the supplemental instruction.

      . See, e.g., Wilson v. State, 606 So.2d 598, 599 (Miss. 1992); Jackson v. State, 452 So.2d 438, 440 (Miss. 1984); Davis v. State, 406 So.2d 795, 801 (Miss. 1981).