author: GRIFFIS, J.,

text:
    Carrie LADNER, Appellant v. STONE COUNTY, Mississippi, Mississippi State Aid Road Construction and Mississippi State Aid Engineer Floyd Kirk, Appellees.
    No. 2004-CA-00999-COA.
    Court of Appeals of Mississippi.
    Jan. 17, 2006.
    Rehearing Denied June 6, 2006.

      Albert Lionel Necaise, Gulfport, attorney for appellant.
    Robert 0. Allen, Brookhaven, William L. McDonough, Jr., Gulfport, attorneys for appellees.
   GRIFFIS, J.,

for the Court.

¶ 1. The Kirby Creek Bridge over Old Highway 26 in Stone County collapsed. Carrie Ladner suffered severe injuries when she drove over the bridge, because she could not see the collapsed portion and stop her vehicle in time. Ladner sued Stone County, State Aid Road Construction, and State Aid Engineer Floyd Kirk for her injuries. She alleged negligence, failure to properly maintain the bridge, failure to inspect, and failure to warn. Circuit Judge Jerry 0. Terry, Sr., presided over the bench trial. After Ladner put on her case-in-chief, the defendants moved for a directed verdict. Judge Terry granted the motion.

¶ 2. Ladner appeals claiming the court erred in holding the defendants immune and finding that the defendants were not negligent. We find no evidence that either State Aid Road Construction or the State Aid Engineer was negligent, and we affirm the dismissal as to these defendants. However, we find that Stone County was not immune and that Ladner satisfied her prima facie case against Stone County. Accordingly, we reverse and remand for trial on the merits against Stone County.

FACTS

¶ 3. Kirby Creek Bridge, on Old Highway 26, is a concrete roadway supported by wooden beams. Old Highway 26 is a State Aid road. Thus, Old Highway 26 qualifies for funding from the State Aid division of the Mississippi State Highway Commission, now known as the Mississippi Department of Transportation.

¶ 4. Since at least 1995, Stone County, State Aid and the State Aid Engineer were all aware that the bridge’s wooden beams were rotting and deteriorating. At least twice a year, from 1995 through 1999, the County was made aware of the bridge’s deteriorating condition, either through the engineer’s report or through the Board’s on site inspection of the bridge. With each inspection, the engineer’s report noted that the deterioration was advancing. Despite these reports, the Stone County road manager never inspected this bridge. Indeed, each of the defendants were aware that a majority of the wooden support beams were rotten and that some were being crushed by the weight of the roadway.

¶ 5. In 1998, Stone County posted a sign that lowered the weight limit of the bridge from 10,000 pounds to 6,000 pounds. The lower weight sign notwithstanding, the County was aware that school buses, weighing approximately 30,000 pounds, and logging trucks, weighing approximately 80,000 pounds, continued to travel over the bridge. The traffic count over the bridge was 585 cars daily.

¶ 6. In February of 1999, the State Aid Engineer told Stone County and State Aid that failure of the bridge was imminent. Although other bridges in the county needed various repairs, this bridge was the only one which the State Aid Engineer listed as in danger of imminent failure. He recommended, as he had in years previous, to replace the bridge with a concrete bridge.

¶ 7. None of the defendants ever recommended that the bridge be closed. On May 26, 1999, one of the rotten pilings finally collapsed and caused the middle of the bridge to collapse into a deep “V” shape.

¶ 8. Carrie Ladner lives in Steep Hollow, Pearl River County, Mississippi. On May 26, 1999, Ladner was traveling Old Highway 26 on her way to work at Stone County Hospital in Wiggins. A little before seven that morning, Ladner passed a school bus as both were traveling in the same direction, toward the bridge. When Ladner arrived at the bridge, she did not see the collapsed portion and began to cross over the bridge. It was too late. Her car went airborne and crashed on the opposite side of the bridge on Old Highway 26.

STANDARD OF REVIEW

¶ 9. We begin by noting that the proper motion was not one for a directed verdict. Instead, in a bench trial, the proper motion to make at the close of plaintiffs case-in-chief is a motion for involuntary dismissal under Rule 41(b) of the Mississippi Rules of Civil Procedure. Partlow v. McDonald, 877 So.2d 414, 416(¶ 7) (Miss.Ct.App.2003). Rule 50(a) directed verdicts are reserved only for jury trials. Id. This distinction must be understood, because the standard of review for a dismissal is different than that for a directed verdict. Id.

¶ 10. Our consideration of this appeal will be based on the correct Rule 41(b) standard of review. Id. In considering a motion for involuntary dismissal under Rule 41(b), the trial court should consider “the evidence fairly, as distinguished from in the light most favorable to the plaintiff,” and the judge should dismiss the case if it would find for the defendant. Century 21 Deep S. Props., Ltd. v. Corson, 612 So.2d 359, 369 (Miss.1992). We must apply the substantial evidence/manifest error standard to an appeal of a grant or denial of a motion to dismiss pursuant to M.R.C.P. 41(b). Id. Where there arguably is evidence that a party might be entitled to a judgment, the court errs in dismissing the case. Aronson v. Univ. of Miss., 828 So.2d 752, 756(¶ 14) (Miss.2002). We defer to findings of fact and review legal conclusions de novo. Id. at 755(¶ 12).

ANALYSIS

¶ 11. The trial court held that Ladner did suffer personal injuries as a direct result of the collapse of the Kirby Creek Bridge. However, the court held all defendants were protected by discretionary function immunity set out in Mississippi Code Annotated Section ll-46-9(d)(1972). Alternatively, the court held that the defendants were not negligent in the bridge’s collapse, because there was no evidence to show what the defendants should have done differently.

¶ 12. Ladner argues discretionary function immunity does not apply when the duty is imposed by law. She also claims that someone must first make a decision and exercise judgment for the discretionary function immunity to apply. Ladner also contends that the defendants were negligent in that they failed to properly maintain Kirby Creek Bridge in a safe condition, they negligently repaired the bridge, they failed to properly inspect the bridge, and they failed to warn her of a dangerous condition.

I. Did the trial court err in dismissing the State Aid defendants?

¶ 13. The duty to maintain State Aid roads and bridges is delegated to the boards of supervisors in their respective counties. Miss.Code Ann. § 65-9-25 (Rev. 2001). While the State Aid office has the authority to maintain and repair roads, it is not duty bound to do so. Jenkins. v. Miss. Dep’t of Transportation, 904 So.2d 1207, 1211(¶ 8) (Miss.Ct.App.2004). To maintain a negligence cause of action, plaintiff must prove duty, breach, causation and damages. Since the State Aid defendants did not have a duty to repair or maintain the bridge, Ladner could not maintain a negligence action against them for breach of this duty. Accordingly, the trial court was correct to dismiss the failure to maintain and negligent repair counts against the State Aid defendants.

¶ 14. The State Aid defendants did have an affirmative duty to inspect State Aid bridges, such as the Kirby Creek Bridge. Id. However, Ladner put on no evidence that proved that the State Aid defendants negligently performed this function. Therefore, we affirm the dismissal of Ladner’s claim for failure to inspect the bridge against the State Aid defendants.

¶ 15. Ladner’s final claim was that the State Aid defendants had a duty to warn or otherwise protect her against the danger of Kirby Creek Bridge’s collapse, because it was a dangerous condition of which it had actual notice. To state a cause of action under the dangerous condition exemption of the Mississippi Tort Claims Act (“MTCA”), a plaintiff must show: (1) a dangerous condition, (2) on the government entity’s property, (3) which the government entity caused, or of which it had notice and time to protect or warn against, and (4) the condition was not open and obvious. Miss.Code Ann. § 11-46-9(v) (Rev.2002). See Lowery v. Harrison County Bd. of Supervisors, 891 So.2d 264, 267(¶ 12) (Miss.Ct.App.2004). Ladner’s claim fails on the second element. There was no dispute that Kirby Creek Bridge was a county road, not a state highway. Therefore, she cannot maintain a dangerous condition cause of action against the State Aid defendants.

¶ 16. Because Ladner failed to prove that the State Aid defendants were negligent, it is not necessary for us to determine whether the State Aid defendants were immune. Therefore, we affirm the trial court’s dismissal of the State Aid defendants under Rule 41(b) of the Mississippi Rules of Civil Procedure.

II. Did the trial court err in dismissing Stone County?

A. Is Stone County protected by discretionary function immunity?

¶ 17. The MTCA provides that a governmental entity is immune from a tort suit “[biased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.” Miss.Code Ann. § 11 — 46—9(d) (Rev.2002). “Governmental entity” includes counties within the State. Miss. Code Ann. § 11^46~l(g) and (i) (Supp. 2004). , To be immune, the discretionary act must involve an element of choice or judgment, and the choice must involve social, economic or political policy. Jones v. Miss. Dep’t of Transportation, 744 So.2d 256, 260(¶ 10) (Miss.1999).

¶ 18. Furthermore, Mississippi has adopted federal courts’ interpretation of discretionary function immunity. L.W. v. McComb Sep. Mun. Sch. Dist., 754 So.2d 1136, 1143(¶ 28) (Miss.1999); Jones, 744 So.2d at 263-64(¶ 23); Miss. Dep’t of Transportation v. Trosclair, 851 So.2d 408, 416(¶ 23) (Miss.Ct.App.2003). Specifically, this interpretation comes from Wright v. United States, in which it was held:

The discretionary function exemption is intended to protect public policy objectives. It would run counter to the discretionary function exemption to second-guess or micro-manage the kinds of steps appropriate to maximize safety in government facilities, even where the decisions are made below the policy level. Within that broad discretion, reasonable steps of a type determined by management to minimize risks of personal injury are necessary. Failure to take any such steps where feasible is negligent and not within the discretionary function exemption, even though the particular nature of the appropriate steps is discretionary.

866 F.Supp. 804, 806 (S.D.N.Y.1994) (citations omitted) (emphasis added).

¶ 19. The gist of Ladner’s claim is that Stone County knew Kirby Creek Bridge was defective and dangerous, but the failure to correct the problem caused the bridge to collapse and injure her. Ladner further put on evidence that the steps needed to protect her against this dangerous condition were feasible with respect to money and time. For example, there was evidence that it only took the county one month to repair the bridge after it collapsed. The county had been on notice for five years that the bridge needed repair. Additionally, the county was aware, in February of 1999, that the bridge was in danger of imminent collapse. The bridge did not collapse until May 19, 1999, giving the county adequate time to have repaired the bridge before the collapse. There was evidence that the county had approximately 1.2 million dollars in State Aid funds, and even if it repaired all the roads and bridges that it needed to repair, they would have only cost it one million dollars. Therefore, the county had more than enough money to fix Kirby Creek Bridge, without jeopardizing funds for other road and bridge projects. Therefore, Stone County is not immune from its duty to properly maintain and repair Kirby Creek Bridge and its duty to warn of a dangerous condition.

¶ 20. Additionally, we find this case falls under L.W. v. McComb Separate Municipal School District. L.W. provides that where a duty is imposed by law, that duty must be performed with ordinary care. 754 So.2d at 1142(¶ 25). The statutory duty at issue in L.W. was the duty of the schools to “hold students to strict account” for disorderly conduct. Id. Even though discretion could technically be said to determine what amount of discipline to use, this was not enough to render it a discretionary function. Id. at 1141(¶ 24). Therefore, under Section ll-46-9(b), ordinary care was the standard to be used in carrying out this statutory duty. Id. at 1142(¶ 25).

¶ 21. Just as in L.W., here the duty was imposed by statute. Stone County was under the statutory duty to “properly maintain” and to inspect State Aid roads such as Kirby Creek Bridge. Miss.Code Ann. §§ 65-7-117 and 65-9-25 (Rev.2001). The county had the constitutional duty to “perform such other duties as may be required by law.” Miss. Const. Art. 6, § 170. Like the statutory duty at issue in L.W., these duties may be said to involve discretion. Nevertheless, even though these duties may involve some degree of discretion on the part of Stone County, this is not enough to convert them into discretionary functions. The statutory duty trumps the discretionary function immunity. L.W., 754 So.2d at 1142(¶ 27). Therefore, Stone County is not immune from its duty to properly maintain, inspect, and perform such other duties as may be required by law, with respect to Kirby Creek Bridge.

¶ 22. We also note the case law that provides that maintenance and repair of roads are discretionary functions. Mohundro v. Alcorn County, 675 So.2d 848, 854 (Miss.1996). However, the court’s analysis in Mohundro was based on a statute which makes the counties “overseers” of their roads. Id. at 853. Mohundro did not take into account the statutory duties at issue here. If a duty is imposed by statute, it is not a discretionary function. L.W., 754 So.2d at 1142(¶ 27) (quoting Mosby v. Moore, 716 So.2d 551, 557-58(¶ 32) (Miss.1998)). Mohundro is further distinguishable from the present case, because the court held there was no evidence that the county was negligent in its construction of the culvert at issue. 675 So.2d at 854.

¶ 23. For these reasons, we reverse the trial court’s finding of discretionary function immunity.

B. Did the trial court err in holding Stone County was not negligent ?

¶ 24. The MTCA gives immunity only if the government performs its statutory duties with ordinary care. Miss.Code Ann. § ll-46-9(b) (Rev.2002). See L.W., 754 So.2d at 1142(¶ 25). There was testimony that the county road manager was the person from the county charged with the duty of maintaining and repairing roads and bridges. He testified that he never went to inspect Kirby Creek Bridge, despite the reports from the engineer. He then testified he did not recommend the bridge for repair, because it did not seem warranted to him. This was despite the fact that he was told failure was imminent.

¶ 25. Further, the evidence showed that the county had actual notice, twice a year for five years that Kirby Creek Bridge was advancing in decay. The engineer consistently advised the Board to repair the bridge or to replace it with a standard concrete bridge. Witnesses for the county testified that it considers the engineer to be an expert and that it had no reason to doubt his recommendation. Ample testimony was that the county had the money and the time to either fix or close the bridge.

¶ 26. For years the county did nothing except post a lowered weight limit sign on the bridge and splice the pilings. A witness for the county testified that when he read that Kirby Creek Bridge was in danger of imminent failure, he knew the bridge was going to collapse. Despite the fact that Kirby Creek Bridge was the only bridge listed in this condition in February 1999, the county decided to repair another bridge, which they were doing at the time of Kirby Creek Bridge’s collapse. Stone County cannot be said to have exercised ordinary care when it in fact failed to perform its statutory duty to properly maintain the bridge.

¶ 27. Moreover, the uncontroverted evidence was that (1) the rotting bridge was a dangerous condition, (2) on county property, (3) exacerbated by the county’s negligence, (4) of which the county had actual notice and time to correct or warn against, and (5) which was not open and obvious to Ladner. It was undisputed that the county had more than enough time and money to replace Kirby Creek Bridge with a standard concrete bridge, per the engineer’s recommendations.

¶ 28. To state a cause of action under the dangerous condition exemption of the MTCA, a plaintiff must show (1) a dangerous condition, (2) on the government entity’s property, (3) which the government entity caused, or of which it had notice and time to protect or warn against, and (4) the condition was not open and obvious. Miss.Code Ann. § ll-46-9(v) (Rev.2002). See Lowery, 891 So.2d at 267(¶ 12). Here, the Plaintiff satisfied her prima facie case of failure to properly maintain and repair the bridge, or in the alternative to warn against its dangers.

¶ 29. As for the failure to inspect count against Stone County, there was evidence offered for and against this claim. The Board and the engineer did make the required inspections. No evidence implied that they performed this negligently. However, the county road manager testified that he never inspected the bridge despite the numerous reports from the engineer that the bridge was in ever worsening condition and in need of repair. A former county board member testified that the county road manager had a duty to inspect, repair and maintain the roads. Considering the evidence fairly, we find the county may be liable for its road manager’s failure to inspect Kirby Creek Bridge at all.

¶ 30. We hold that Ladner has satisfied her prima facie case on all counts. It was error for the trial court to hold that Stone County was not negligent. Therefore, we reverse the dismissal of the case against Stone County.

¶ 31. By raising a Rule 41(b) motion to dismiss, a defendant does not waive its right to put on its case-in-chief, should the motion be denied. Miss. R. Civ. P. 41(b). Therefore the proper remedy is to remand the case so the trial may continue, and Stone County may have the opportunity to present its defense. Aronson, 828 So.2d at 756(¶ 14).

CONCLUSION

¶ 32. We affirm in part and reverse and remand in part. We affirm the lower court’s dismissal of the State Aid defendants. We reverse the dismissal of Stone County and remand the case for further proceedings consistent with this opinion.

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF STONE COUNTY DISMISSING THE ACTION IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN APPELLANT AND APPELLEES.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, CONCUR. ROBERTS, J„ NOT PARTICIPATING.


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Leon FUQUA a/k/a Fugua Leon a/k/a Leomie Fuqua, Appellant, v. STATE of Mississippi, Appellee.
    No. 2004-KA-00491-COA.
    Court of Appeals of Mississippi.
    March 7, 2006.
    Rehearing Denied June 27, 2006.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

CHANDLER, J.,

for the Court.

¶ 1. The State’s motion for rehearing is granted. The original opinion issued in this case is withdrawn, and the following opinion is substituted therefor.

¶2. The appellant, Leon Fuqua, was convicted in the Circuit Court for the First Judicial District of Hinds County of the crimes of capital murder and arson. Fu-qua was sentenced as a habitual offender to two consecutive life terms without, the possibility of parole. Fuqua appeals, asserting six assignments of error.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. Fuqua resided with Janis Taylor and her boyfriend, Roy Williams, on East Davis Street in Jackson, Mississippi. On the evening of February 16, 2002, Taylor and Williams returned to the apartment to find Fuqua, his boyfriend, Albert Pitts, and Ray Charles Ainsworth in the living room. Fuqua and Ainsworth were naked and engaged in oral sex. While the pair was so engaged, several witnesses came and went from the apartment.

¶ 5. At some point during the encounter, Fuqua and Pitts began striking Ains-worth’s head with various objects whenever Ainsworth stopped performing oral sex upon Fuqua. Witnesses described these objects as a belt, an axe, a pipe and a crowbar. Taylor observed that the repeated beatings caused Ainsworth’s face and head to swell severely. After a time, Fuqua and Pitts allowed Ainsworth to take his clothes and leave. Amsworth did not leave, but sat down. Taylor heard Ains-worth complain to Fuqua of feeling cold. Fuqua brought Ainsworth a blanket and Ainsworth lay down on the floor.

¶ 6. Early the next morning, Taylor inquired as to Ainsworth’s whereabouts. Fuqua told her that, when he checked on Ainsworth, Ainsworth was not breathing and his body was very cold. Fuqua told Taylor that he and Pitts had wrapped Ainsworth in the blanket, carried him to an empty house, and set the house on fire.

¶ 7. Around 6:30 a.m. that day, the Jackson Fire Department was dispatched to East Davis Street in response to a fire at an abandoned house. An arson investigator concluded that the fire had been intentionally set using rubbing alcohol as an accelerant. A badly burned human corpse was found inside the house. From dental records, the corpse was determined to be that of Ainsworth. The pathologist, Dr. Steven Hayne, determined that the cause of death was a subdural hemorrhage secondary to a closed head injury. The manner of death was homicide. Dr. Hayne partially based his finding of homicide upon witness statements provided by the district attorney.

¶ 8. The Jackson Police Department’s investigation of the death led to the issuance of a search warrant for Fuqua’s apartment. After the search, Fuqua waived his rights and gave the police two confessions, one hand-written and one typed. According to the typed confession, Pitts beat Ainsworth to death by himself and then Pitts and Fuqua rolled up Ains-worth’s body in a blanket, took it to the abandoned house, and set the house on fire using rubbing alcohol. Fuqua stated that Pitts threatened to kill him if he told anyone what had occurred.

¶ 9. When the State rested its case, Fu-qua did not present any evidence. He was convicted of capital murder and arson. Fuqua timely appeals, asserting the following errors: (1) whether the trial court erred by not dismissing Count 1 of the indictment for lack of an essential element; (2) whether Fuqua was prevented from developing testimony in support of theories of defense; (3) whether the trial court erred in disallowing Fuqua’s proffered jury instruction on duress; (4) whether Fuqua was impermissibly prejudiced by the admission of irrelevant evidence; (5) whether the verdict of guilty of capital murder, as opposed to manslaughter, is supported by the evidence; and (6) whether the defendant was illegally sentenced as a habitual offender.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED BY NOT DISMISSING COUNT 1 OF THE INDICTMENT FOR LACK OF AN ESSENTIAL ELEMENT.

¶ 10. Fuqua argues that Count 1 of his indictment insufficiently charged the crime of capital murder with the underlying felony of sexual battery. Specifically, Fuqua argues that the indictment failed to state the elements of the underlying felony of sexual battery. Count 1 of Fuqua’s indictment stated:

Fuqua ... without authority of law, and with or without any design to effect the death, did then and there wilfully, unlawfully, and feloniously, kill, slay, and murder Ray Charles Ainsworth, a human being, in violation of Section 97-3-19(2)(e), Mississippi Code, 1972, as amended, while, the said [Fuqua was] engaged in commission of the crime of sexual battery of Ray Charles Ainsworth or in the attempt to commit such offense, by wilfully, unlawfully and felo-niously engaging in sexual penetration with Ray Charles in that, he the said [Fuqua] forced the victim, Ray Charles Ainsworth to perform fellatio on the said [Fuqua].

Before the trial, Fuqua objected to the sufficiency of the indictment. The trial court found that the indictment was sufficient and overruled Fuqua’s motion.

¶ 11. “[I]t is a well-established principle of law that in order for an indictment to be sufficient, it must contain the essential elements of the crime charged.” Peterson v. State, 671 So.2d 647, 652-53 (Miss.1996). More specifically,

it is fundamental ... that an indictment, to be effective as such, must set forth the constituent elements of a criminal offense; if the facts alleged do not constitute such an offense within the terms and meaning of the law or laws on which the accusation is based or if the facts alleged may all be true and yet constitute no offense, the indictment is insufficient.... Every material fact and essential ingredient of the offense— must be alleged with precision and certainty, or, as has been stated, every fact which is an element in a prima facie case of guilt must be stated in the indictment.

Id. at 653 (quoting Love v. State, 211 Miss. 606, 611, 52 So.2d 470, 471 (1951)). “The ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense.” Medina v. State, 688 So.2d 727, 730 (Miss.1996).

¶ 12. In Peterson, the court applied these principles to find that an indictment was insufficient to charge the defendant with sexual battery. The definition of sexual battery provides, in pertinent part, that “(1) A person is guilty of sexual battery if he or she engages in sexual penetration with: (a) Another person without his or her consent.” Miss.Code Ann. § 97-3-95 (Rev.2000). Peterson’s indictment failed to include the words, “without her consent.” The court held that “[l]ack of consent is an essential fact necessary to constitute the crime of sexual battery.” Id. at 655. Since Peterson’s indictment did not charge the essential element of lack of consent, the indictment was fatally flawed. Id. Fuqua argues that, as in Peterson, his indictment was insufficient for failure to include the language, “without his consent.” Fuqua argues that the omission of this language left him unable to adequately prepare for trial.

¶ 13. We find that Count 1 of Fuqua’s indictment was sufficient. Count 1 charged Fuqua with capital murder with the predicate felony of sexual battery, not for sexual battery alone. “A capital murder indictment based on an underlying felony, other than burglary, does not have to specifically set forth the elements of the underlying felony used to elevate the crime to capital murder.” Gray v. State, 728 So.2d 36, 71 (¶ 174) (Miss.1998). For capital murders with underlying felonies other than burglary, naming the underlying felony in the indictment is sufficient to put the defendant on notice of the crime charged. See Stevens v. State, 808 So.2d 908, 920(¶ 38) (Miss.2002).

¶ 14. The reason that an indictment for capital murder with the underlying felony of burglary must state the felony underlying the burglary is “[bjurglary is unlike robbery and all other capital murder predicate felonies in that it requires as an essential element the intent to commit another crime.” Gray, 728 So.2d at 71 (¶ 174). Since the intent to commit a felony is an essential element of burglary, the defendant must be afforded notice of the felony underlying the burglary that the State will attempt to prove at the trial. Id.; State v. Berryhill, 703 So.2d 250, 256(¶ 25) (Miss.1997). Unlike burglary, an underlying felony is not an essential element of sexual battery or of the other predicate felonies to capital murder. Gray, 728 So.2d at 71 (¶ 174). Therefore, there is no requirement that, in a capital murder indictment, the State must list the essential elements of any capital murder predicate felonies save burglary. Id. Fu-qua’s indictment was not defective for failure to include the essential elements of sexual battery.

¶ 15. The indictment properly charged Fuqua with capital murder with the underlying felony of sexual battery as defined in Mississippi Code Annotated 97-3-19(2)(e). Further, the indictment adequately apprised Fuqua of the facts supporting the charge of capital murder. This issue is without merit.

II. WHETHER FUQUA WAS PREVENTED FROM DEVELOPING TESTIMONY IN SUPPORT OF THEORIES OF DEFENSE.

¶ 16. Fuqua asserts that he was prevented from developing several theories of defense including: accidental death during consensual rough sex, death as a result of Ainsworth’s own negligence, Fuqua’s duress at the hands of his co-defendant Albert Pitts, and the lesser offense of manslaughter by culpable negligence. Fuqua further argues that the cumulative prejudice created by the stifling of these defenses warrants reversal. See Griffin v. State, 557 So.2d 542, 553 (Miss.1990).

¶ 17. The State filed a motion in limine to exclude evidence of sexual relations between Ainsworth and Fuqua prior to the date of the crime pursuant to M.R.E. 412. The court found that evidence of sexual behavior that occurred pri- or to February 16, 2002 was not relevant. Fuqua argues that past sexual battery is a continuing episodic event such as child abuse.

¶ 18. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936(¶ 7) (Miss.2002). Consensual sex between adults on prior occasions is certainly not, by any stretch of the imagination, comparable to episodic child abuse. All that was relevant regarding sexual relations at this trial was whether the victim consented to the shocking abuses visited upon him on February 16, 2002.

¶ 19. The trial court further found that, even if instances of prior sex had been relevant, the court could have excluded the evidence as overly prejudicial under M.R.E. 403. We find that the trial court’s exclusion of the evidence of prior sexual relations between Fuqua and Ainsworth was not an abuse of discretion. Further, we have reviewed the record concerning Fuqua’s other theories of defense. We find that Fuqua was allowed a fan- opportunity for cross-examination of the State’s witnesses in order to develop his defense theories and, therefore, he was not prejudiced. This issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN DISALLOWING FUQUA’S DURESS DEFENSE JURY INSTRUCTION.

¶ 20. Fuqua next argues that the trial court erred in refusing his proffered jury instruction on duress. Longstanding Mississippi law holds that duress is not a legal defense to murder. Watson v. State, 212 Miss. 788, 793, 55 So.2d 441, 443 (1951). “A person is not authorized to take the life of another person at the command of a third person, whether he is in fear of such person or not....” Wilson v. State, 390 So.2d 575, 576 (Miss.1980).

¶21. Assuming arguendo that duress were a defense, there was no evidence at trial to support a finding that Fuqua’s death or serious bodily injury was imminent, or that Fuqua was not negligent by placing himself in such a situation. See Lester v. State, 767 So.2d 219, 224(¶ 18) (Miss.Ct.App.2000). This issue is without merit.

IV. WHETHER FUQUA WAS IRREPARABLY PREJUDICED BY THE ADMISSION OF IRRELEVANT EVIDENCE.

¶ 22. Fuqua next argues that the trial court erred in allowing the admission of a homemade glass shank. The shank was admitted during the testimony of Investigator James Roberts. Roberts stated that he found numerous objects in or underneath the couch in Fuqua’s living room. The trial court admitted each object into evidence after Roberts identified the object as having been found in or underneath the couch. The objects included a hammer head, a full hammer, a toy duck, a metal pipe, and the shank. After Roberts identified the shank as having been found underneath the couch, Fuqua objected to the admission of the shank as being irrelevant and more prejudicial than probative. The prosecutor argued that the shank was relevant because it was found at the crime scene and had been tested for the presence of blood. The trial court admitted the shank.

¶ 23. Later in the trial, Katina Robbins with the Jackson Police Department Crime Lab testified that the shank had not been among those items tested for the presence of blood. The crime lab did test the hammer head, the full hammer, the toy duck, and the metal pipe. The lab found blood on the hammer head and the duck. This blood was determined to be Ainsworth’s. Also, the pipe and the full hammer were positive for the possible presence of human blood.

¶ 24. When the State rested its case, Fuqua renewed his objection to the admission of the shank on the ground that, because there was no evidence the shank had been used to harm Ainsworth, the shank was more prejudicial than probative. The State offered to withdraw the shank from evidence. Fuqua moved for a mistrial because the jury already had seen the shank. The court found that the shank was admissible because it was among other objects found together at the crime scene. The court alternatively found that, even if the admission of the shank was error, it was harmless, and no mistrial was warranted.

¶ 25. On appeal, Fuqua argues that the shank was extremely prejudicial; therefore, the court’s denial of a mistrial constituted reversible error. The court may grant a mistrial only when the harm done would render the defendant without hope of receiving a fair trial. Reed v. State, 764 So.2d 511, 513(¶ 7) (Miss.Ct.App.2000). This Court reviews the denial of a motion for a mistrial for abuse of discretion. Spann v. State, 771 So.2d 883, 889(¶ 9) (Miss.2000).

f 26. We first review the admissibility of the shank. All relevant evidence is admissible unless its probative value is substantially outweighed by its potential for prejudice. M.R.E. 402, 403. “ ‘Relevant Evidence’ is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. The State made no showing that the shank had been used to harm Ainsworth. However, the shank was found by investigators in close proximity with other items that were used to commit the crime. In Wilkins v. State, 264 So.2d 411, 413 (Miss.1972), the court stated:

articles such as tools or weapons found near the place or scene of the crime have been admitted in evidence ... even where it is not claimed or proved that they were used in the commission of the alleged crime in cases where the evidence has probative weight, or where they constitute a part of the surrounding scene or picture, or are a part of the circumstances of the arrest.

We find that the shank was at least minimally relevant as part of the “surrounding scene or picture” of the crime.

¶ 27. Under the particular facts of this case, since there was no showing by the State that the shank was used to commit the crime, the shank was of minimal probative value. If, at the time the State proffered the shank, the trial court had been aware that there was no evidence the shank was used to harm Fuqua, the court certainly would have been within its discretion in excluding the shank pursuant to Rule 403 as more prejudicial than probative. However, the question before this Court is whether the admission of the shank was so prejudicial that the trial court’s refusal to declare a mistrial was an abuse of discretion.

¶28. The lower court held that, even if admission of the shank was error, such error was harmless and did not substantially prejudice Fuqua. We agree. “An error is harmless when it is apparent on the face of the record that a fair-minded jury could have arrived at no verdict other than that of guilty.” Floyd v. City of Crystal Springs, 749 So.2d 110, 120(¶ 37) (Miss.1999) (citing Forrest v. State, 335 So.2d 900, 903 (Miss.1976)). The evidence against Fuqua, such as the testimony from multiple eyewitnesses, the fact that Ainsworth’s blood was found on objects found in Fuqua’s living room, and Fuqua’s own statement to the police, was overwhelming. We find that a fair-minded jury could have reached no other verdict than that of guilty. Therefore, even if the admission of the shank was error, such error was harmless. This issue is without merit.

V. WHETHER THE VERDICT OF GUILTY OF CAPITAL MURDER, AS OPPOSED TO MANSLAUGHTER, IS SUPPORTED BY THE EVIDENCE.

¶ 29. Fuqua’s motion for a JNOV was denied by the trial court. Fuqua asserts that his conviction of capital murder was unsupported by the evidence. Fuqua reasons that all of the witnesses testified that the sex was consensual and, therefore, the State failed to prove the predicate felony of sexual battery. Fuqua argues that, at most, the only conviction that could be said to be supported by the evidence is manslaughter. See Miss.Code Ann. § 97-3-35 (Rev.2000).

¶ 30. A motion for a JNOV challenges the legal sufficiency of the evidence. In reviewing the denial of a motion for a JNOV, this court is allowed to set aside the jury’s verdict only if we are convinced that, as to one of the essential elements of the crime, the State’s proof was so deficient that a reasonable and fair-minded juror could only find the defendant not guilty. Byars v. State, 835 So.2d 965, 970(¶ 13) (Miss.Ct.App.2003).

¶ 31. Mississippi Code Annotated § 97-3-35 states: “The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.” Culpable negligence manslaughter is defined in Mississippi Code Annotated § 97-3-47 (Rev. 2000), which provides, “Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.” “Culpable negligence has been further defined judicially as ‘negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life.’ ” Steele v. State, 852 So.2d 78, 80(¶ 9) (Miss.Ct.App.2003) (citing Clayton v. State, 652 So.2d 720, 726 (Miss.1995)).

¶ 32. Fuqua argues that the facts sub judice are analogous to the facts of an accidental shooting death in Tait v. State, 669 So.2d 85 (Miss.1996). In Tait, the defendant was convicted of depraved heart murder and appealed on the grounds that the weight and sufficiency of the evidence should have led only to a conviction for manslaughter by culpable negligence. Tait, 669 So.2d at 87-88. The defendant and victim in Tait were engaged in horseplay involving a revolver. When the defendant put the gun to the victim’s head, it accidentally discharged, killing the victim. Id. The Mississippi Supreme Court ruled that the only proper verdict supported by the evidence was manslaughter by culpable negligence. Id. at 90.

¶ 33. In overturning the conviction for murder the court relied on the following construction of depraved heart murder as applied to the facts of the case:

“a reckless and eminently dangerous act directed towards a single individual” would seem to include the defendant’s act of pointing a gun at the victim and pulling the trigger. However, when looking at cases which have discussed depraved heart murder, the closest factually is Blanks v. State, supra. Even though the defendant in Blanks was convicted of manslaughter, this Court said it was proper for the jury to be instructed as to depraved heart murder because the defendant’s conduct following the shooting when he moved and dumped the body and his initial statements in which he denied the killing were not consistent with an accidental killing. Blanks, 547 So.2d at 34. The present case is distinguishable from Blanks because Tait’s conduct of falling to the ground and crying following the shooting could be considered as consistent with an accident.

Tait, 669 So.2d at 90 (distinguishing Blanks v. State, 547 So.2d 29 (Miss.1989)). Fuqua asserts that the dangerous horseplay in Tait is analogous to the violent alleged consensual sex in the instant case.

¶ 34. The State argues that there was ample evidence that would allow a hypothetical juror, acting in good faith, to have found that Fuqua was engaged in the commission of sexual battery when he killed Ainsworth. For instance, Janis Taylor, an eyewitness, testified about whether the oral sex had become non-consensual. Taylor stated, “Yes, as far as beating him when he didn’t. But, you know, this isn’t the first time that ever happened.” Moreover, testimony established that Ainsworth was beaten so severely that his head swelled up “like a pumpkin” and that Ains-worth had been battered so badly that he could not open his mouth.

¶ 35. In Steele v. State, the defendant was convicted of depraved heart murder for shooting into an unoccupied vehicle. Steele v. State, 852 So.2d 78, 79(¶ 1) (Miss.Ct.App.2003). Steele argued on appeal, as does Fuqua, that he lacked the requisite malice to sustain a murder conviction. Steele, 852 So.2d at 80(¶ 9). The defendant in Steele argued, again as does Fu-qua, that Tait provided the controlling law. The court distinguished Tait as follows:

Tait is distinguishable from Steele’s circumstances on several fronts, most notably the absence of accident. Indeed, under Windham, the proper guiding principle is not whether the killing was unintentional or accidental; rather, it is the degree of recklessness employed by the defendant. See Michael J. Hoff-heimer, “Murder and Manslaughter in Mississippi: Unintentional Killings,” 71 Miss. L.J. 35, 117 (2001). That degree of recklessness can be reconciled in the cases by resolving the question of the defendant’s intent as to the underlying act (i.e., the shooting), rather than the intent as to the killing. In each of the previously cited cases, the killing was unintentional. However, in cases involving shootings, the courts have consistently upheld convictions of depraved heart murder where the evidence suggested that the firing of a weapon was intentional, not accidental. See, e.g., Turner v. State, 796 So.2d 998 (Miss.2001); Evans v. State, 797 So.2d 811 (Miss.2000); Clark v. State, 693 So.2d 927 (Miss.1997).

Steele, 852 So.2d at 80-81 (citing Windham v. State, 602 So.2d 798, 801 (Miss.1992)). After reviewing the evidence, the court ruled that there was no evidence that Steele did not intend to shoot; accordingly, the court found that murder was an appropriate verdict. Id. at 81.

¶ 36. After reviewing the evidence in the record before us, it is manifest that Fuqua intended to beat Ainsworth just as the defendant in Steele intended to shoot at an occupied vehicle. We observe that Fuqua’s reliance on Tait is ironic because Tait itself directs the Court to distinguish facts such as those sub judice from those in Tait. The Tait court, in holding that the evidence supported manslaughter by culpable negligence, distinguished the facts of the case before it from those in Blanks, where the defendant moved and then dumped the victim’s body. The facts sub judice, in which Fuqua intended to severely beat Ainsworth, then moved and burned his body, are analogous to the facts in Blanks. This issue is without merit.

VI. WHETHER THE DEFENDANT WAS ILLEGALLY SENTENCED AS A HABITUAL OFFENDER.

¶ 37. Fuqua’s final assignment of error alleges that, by failing to enter an order amending the indictment to charge Fuqua as a habitual offender, the amendment by the State at trial was ineffective and could not have been used in sentencing. “The State is required to make sure that such an order appears in the record and the defense is required to object to the absence of such order if it wishes to preserve this point for appeal.” Reed v. State, 506 So.2d 277, 279 (Miss.1987). Due to Fuqua’s failure to object at trial, this issue is procedurally barred.

¶ 38. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION ON COUNT I, OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE, AND ON COUNT II, OF CONVICTION OF ARSON AND SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE, WITH SENTENCES TO RUN CONSECUTIVELY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS AND BARNES, JJ., CONCUR. SOUTHWICK, ISHEE AND ROBERTS, JJ., NOT PARTICIPATING.


author: LEE, P.J.,

text:
    Robert Anthony HUBBARD, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02052-COA.
    Court of Appeals of Mississippi.
    March 7, 2006.
    Rehearing Denied June 27, 2006.

      Dan W. Duggan, Brandon, attorney for appellant.
    Office of the Attorney General, by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Lieutenant Andrew Barrett was working at the Florence Police Department on April 2, 2003, when the department received a dispatch from the Rankin County Sheriffs Department regarding a suspicious person spotted in the area of Erlich Road and South Church Street in Florence. As Lt. Barrett approached the intersection, he saw a silver Caprice run a stop sign at the intersection of Old Highway 49 and Erlich Road.

¶ 2. Lt. Barrett stopped the vehicle and asked the driver, Robert Anthony Hubbard, for his license. Lt. Barrett noted that while the passenger was using her seat belt, Hubbard was not. Lt. Barrett requested Hubbard’s license, and Hubbard responded that he did not have a license. Hubbard accompanied Lt. Barrett to the rear of the vehicle, and Officer John Hony and Officer Danny Barnes of the Florence Police Department arrived. Hubbard then told Lt. Barrett that his license was suspended.

¶ 3. Lt. Barrett informed Hubbard that he was under arrest for running the stop sign and driving with a suspended license. Officer Hony began to handcuff Hubbard when Hubbard shoved Lt. Barrett to the ground and ran towards his car. Hubbard dived partially into the car through the open driver’s side window, where his passenger grasped his arms and began pulling him into the vehicle. Officer Hony tugged on Hubbard’s legs as he thrashed about, halfway inside the vehicle. By the time Lt. Barrett joined the officers, Hubbard had managed to climb almost completely into the vehicle and was pressing the accelerator. Officer Hony reached inside the car and fought with Hubbard for control of the gear shift. Lt. Barrett testified that he saw a knife inside the car on the floorboard near Hubbard’s hand. Hubbard then wrenched the gear shift, and the vehicle lurched forward six feet before Officer Honey could force the gear into park. Officer Barnes then shot the rear tire of the vehicle.

¶ 4. Officer McCue arrived to provide backup, and Lt. Barrett shot the vehicle’s radiator. During the fray Officers McCue and Barnes maced Hubbard in the face; however, Hubbard was able to roll up the window, trapping both Officer Hony’s and Officer Barnes’s arms inside the car. Hubbard put the car in drive and began to leave. Officer Hony was able to free his arm, but Officer Barnes was propelled down the road a few feet before he could escape.

¶ 5. Undeterred by the damaged radiator and tire, Hubbard led the officers in a chase for nearly a mile and a half before the vehicle stopped and the officers arrested Hubbard and his passenger. Lt. Barrett retrieved the knife from the vehicle and waited for a wrecker to arrive. One of the officers verified the vehicle identification number from the dashboard of the car; however, the VIN from the dashboard belonged to a brown 1984 Chevrolet. The officers ran the vehicle’s license tag, which was registered to Erica Davis, Hubbard’s passenger. Lt. Barrett testified that the car was a 1987 model, but the car tag belonged to a 1992 Lincoln Continental. The officers ascertained that the silver Caprice had been stolen three months ago.

¶ 6. Hubbard was convicted of aggravated assault on a law enforcement officer and possession of stolen property. Hubbard now appeals, arguing three assignments of error: (1) the trial court erred in offering a flight instruction; (2) the trial court erred in denying his motion for a JNOV regarding the charge of assault on Officer Barnes; and (3) the trial court erred in denying his motion for a directed verdict and motion for a JNOV regarding the possession of stolen property charge.

¶ 7. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 8. It is well-settled law that an appellate court does not review jury instructions in isolation, considering them as a whole to determine if the jury was properly instructed on the law. Scott v. State, 878 So.2d 933, 966(¶ 92) (Miss.2004). When read as a whole, “if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Collins v. State, 691 So.2d 918, 922 (Miss.1997). A motion for a directed verdict, a motion for a JNOV, and a request for a peremptory instruction challenge the legal sufficiency of the evidence. Jefferson v. State, 818 So.2d 1099, 1110—11(¶ 30) (Miss.2002).

The critical inquiry is whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.”

Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). After viewing the evidence in the light most favorable to the prosecution, the evidence is sufficient if any rational trier of fact could have found the defendant committed each element of the crime beyond a reasonable doubt. Id.

I. DID THE TRIAL COURT ERR IN GIVING A FLIGHT INSTRUCTION?

¶ 9. Hubbard argues that the trial court improperly granted instruction S-3, which provided as follows:

“Flight” is a circumstance from which guilty knowledge and fear may be inferred. If you believe from the evidence in this case beyond a reasonable doubt that the Defendant, ROBERT ANTHONY HUBBARD, did flee or go into hiding, such flight or hiding is to be considered in connection with all other events in this case. You will determine from all the facts whether such flight or hiding was from a conscious sense of guilt of possession of stolen property and/or of possession of a motor vehicle with an altered vehicle identification number or whether it was caused by other things and give it such weight as you think it is entitled to in determining the guilt or innocence of the Defendant, ROBERT ANTHONY HUBBARD.

¶ 10. Hubbard correctly argues that a flight instruction is appropriate where “the defendant’s flight (1) is unexplained and (2) where the circumstance of that flight has considerable probative value.” Ledford v. State, 874 So.2d 995, 999-1000(¶ 11) (Miss.Ct.App.2004) (quoting Austin v. State, 784 So.2d 186, 194(¶ 24) (Miss.2001)).

¶ 11. At trial Hubbard testified that he did not run the stop sign, yet Lt. Barrett attempted to arrest him for the traffic violation. Hubbard testified that Lt. Barrett appeared to be waiting for other officers to arrive and that Lt. Barrett handcuffed him but did not lock the handcuffs. Hubbard testified that the backup officers arrived “with pistols drawn,” making him nervous.

¶ 12. Officer Barnes then approached Hubbard and accused him of committing burglaries in the area. According to Hubbard, when he denied the accusation, Officer Barnes responded by calling him a “d- liar” and rushing up to him, striking Hubbard in the face. Hubbard testified that he did not run until Officer Barnes punched him in the face.

¶ 13. In Brock v. State, 530 So.2d 146 (Miss.1988), the defendant ran when confronted with a woman who alleged that Brock raped and shot her. Brock argued that a flight instruction was in error because he explained his departure. The supreme court held that the flight instruction was proper because Brock’s “version” was contradicted and unsupported by anything other than his own testimony. Id. at 153. We find the rationale of Brock persuasive. Hubbard’s account was contradicted by the testimonies of Lt. Barrett, Officer Barnes, and Officer McCue. Nothing, save his own testimony, supports Hubbard’s version of the events surrounding his flight.

¶ 14. The second criteria is also satisfied. The circumstances of the flight have probative value in that Hubbard fled the scene in a stolen vehicle after acknowledging to Lt. Barrett that he was driving while his license was suspended. We further disagree with Hubbard’s assertion that the instruction was confusing and misleading. The language of the instruction clearly limited itself to the possession charges and not the aggravated assault charges. The flight instruction was proper. This issue is without merit.

II. DID THE TRIAL COURT ERR IN DENYING HUBBARD’S MOTION FOR A JNOV ON THE CHARGE OF ASSAULTING OFFICER BARNES?

¶ 15. Hubbard next asserts that the evidence was insufficient to support his conviction for assaulting Officer Barnes. Hubbard substantiates his argument by pointing to his acquittal on the charge of assaulting Officer Hony who was standing next to Officer Barnes during the altercation. Hubbard concludes that because both the officers were involved in the altercation at the window of the vehicle and the jury found him not guilty of assaulting Officer Hony, the evidence was necessarily insufficient to support his conviction for assaulting Officer Barnes.

¶ 16. This argument is without merit because an inconsistent verdict, in and of itself, is insufficient to reverse a criminal conviction. George v. State, 752 So.2d 440, 443(1120) (Miss.Ct.App.1999). Regarding the perplexity of the inconsistent verdict, the United States Supreme Court has held as follows:

[Ijnconsistent verdicts—even verdicts that acquit on a predicate offense while convicting on the compound offense— should not be interpreted as a windfall to the Government at the defendant’s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. But in such situations the Government has no recourse if it wishes to correct the jury’s error; the Government is precluded from appealing or otherwise upsetting such an acquittal by the Constitution’s Double Jeopardy Clause.
Inconsistent verdicts therefore present a situation where “error,” in the sense that the jury has not followed the court’s instructions, most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course.
[T]here is no reason to vacate the respondent’s conviction merely because the verdicts cannot rationally be reconciled. Respondent is given the benefit of [his] acquittal on the counts on which [he] was acquitted, and it is neither irrational nor illogical to require [him] to accept the burden of [his] conviction on the counts on which the jury convicted.

United States v. Powell, 469 U.S. 57, 65, 69, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (citations omitted). The Powell court further opined that independent appellate review of the sufficiency of the evidence provides adequate protection from juror irrationality or error. Id. at 67, 105 S.Ct. 471.

¶ 17. Following Powell, our supreme court addressed this issue in Holloman v. State, 656 So.2d 1134 (Miss.1995), wherein the defendant was acquitted of the DUI maiming of the occupant of his truck, yet was convicted of the DUI maiming and manslaughter of the occupants of another vehicle. Id. at 1141. Upon review of the sufficiency of the evidence, our supreme court affirmed the convictions. Id. at 1142-144. We, likewise, employ this standard of review.

¶ 18. When reviewing the sufficiency of the evidence, we must give the State the benefit of all reasonable inferences that may be drawn from the evidence. Edwards v. State, 469 So.2d 68, 70 (Miss.1985). “If the facts and inferences so considered point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, granting the motion is required.” Id. (citing May v. State, 460 So.2d 778, 781 (Miss.1984)).

¶ 19. Regarding the assault charge on which Hubbard was convicted, the State must have proven (1) that under circumstances manifesting extreme indifference to human life (2) Hubbard did purposefully, knowingly or recklessly (3) attempt to cause or caused serious bodily injury to Officer Barnes. See Miss.Code Ann. § 97-3-7(2) (Supp.2005). The testimony at trial established that Hubbard drove his vehicle with Officer Barnes’s arm trapped in the closed drivers’s side window, evidencing Hubbard’s indifference to human life. Hubbard admitted that he rolled up the window and that he was trying to leave. Finally, there was testimony that the car window ripped the flesh from Officer Barnes’s arm. The evidence was sufficient to support the verdict. This issue is without merit.

III. DID THE TRIAL COURT ERR IN DENYING HUBBARD’S MOTION FOR A DIRECTED VERDICT OR A JNOV .ON THE CHARGE OF POSSESSION OF STOLEN PROPERTY?

¶ 20. Hubbard asserts that he should have been granted either a directed verdict or a JNOV on the charge of possession of stolen property because the State failed to prove the value of the car. Hubbard was convicted of receiving stolen property with a value exceeding $250 under Mississippi Code Annotated 97-17-70 (Rev.2003). Although in 2005 the Legislature subsequently increased the applicable amount to $500, the previous amount of $250 applies for purposes of our discussion.

¶ 21. The State argues that Hubbard presented a defense and, therefore, waived his right to appeal the denial of his motion for a directed verdict. Our supreme court has previously held that “[i]t is elemental that after a motion for directed verdict is overruled at the conclusion of the State’s evidence, and the appellant proceeds to introduce evidence in his own behalf, the point is waived.” Harris v. State, 413 So.2d 1016, 1019 (Miss.1982). To preserve his appeal on this issue, Hubbard must have renewed his motion for a directed verdict at the conclusion of all the evidence. Id. No such renewal occurred, either ore tenus or by the request for a peremptory instruction. As such, our review of the denial of the motion for a directed verdict is procedurally barred.

¶ 22. As previously discussed, in reviewing the sufficiency of the evidence we give the State the benefit of all reasonable inferences which may be drawn from the evidence. Edwards, 469 So.2d at 70. The defense introduced a purported bill of sale for the vehicle which Hubbard was driving. The bill of sale listed the purchase price as $1,500; therefore, we agree with the State that the value of the car was proven at trial. This issue is without merit, as the evidence was sufficient to support the conviction.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT UPON A LAW ENFORCEMENT OFFICER AND SENTENCE OF TWENTY YEARS; COUNT III, POSSESSION OF STOLEN PROPERTY AND SENTENCE OF FIVE YEARS TO RUN CONCURRENTLY WITH THE SENTENCE IMPOSED IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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


author: ISHEE, J.,

text:
    Patsy D. DAVIS, Appellant v. FORREST ROYALE APARTMENTS, Subsidiary of South Mississippi Health Services, Inc., and Forrest General Hospital, Appellees.
    No. 2005-CA-00919-COA.
    Court of Appeals of Mississippi.
    March 14, 2006.
    Rehearing Denied June 27, 2006.
    William L. Ducker, Purvis, attorney for appellant.
    R. Christopher Wood, attorney for ap-pellees.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Patsy Davis was injured as a result of the collapse of the patio at her apartment complex, Forrest Royale Apartments (“Forrest Royale”) in Hattiesburg. Davis subsequently filed a personal injury suit against Forrest Royale, as a subsidiary of South Mississippi Health Services, Inc. (“SMHS”), after which Forrest General Hospital (“Forrest General”) intervened and filed for summary judgment on the basis of immunity under the Mississippi Tort Claims Act (“MTCA”). The trial court granted Forrest General’s motion for summary judgment. Aggrieved, Davis appeals. Finding no error, we affirm.

FACTS

¶ 2. Forrest County acquired title to two contiguous parcels of real property in 1991 through a warranty deed. That same day, Forrest County executed a lease in favor of SMHS conveying a leasehold interest in one of the parcels of property and stating that the property was to be used “for hospital purposes and for the use and benefit of Forrest County General Hospital and provided that said real property shall constitute a part of the facilities of said hospital to be operated by its Board of Trustees.” Davis entered an apartment lease agreement with Forrest Royale Apartments, which were located on the aforementioned parcel, on December 24, 1995.

¶ 3. On May 7, 2001, while a resident at Forrest Royale, Davis was allegedly injured while on or near the patio of her apartment when it collapsed, causing her to fall. Davis subsequently underwent hospitalization and surgery as a result of the injuries she incurred when the patio collapsed. Davis consequently filed a personal injury suit on June 13, 2002 against Forest Royale, as a subsidiary of SMHS. On October 18, 2002, Forrest General, as the owner of Forest Royale, filed a motion to intervene, and on the same day, filed a motion for summary judgment, asserting that Davis’s claim was barred by failure to properly comply with the MTCA. Forrest General’s motion to intervene was granted. On December 2, 2002, Davis filed a notice of claim under the MTCA with the chief administrator of Forrest General. The trial court granted Forrest General’s amended motion for summary judgment on April 15, 2005. The court reasoned that Davis was put on constructive notice that Forrest General was the owner of the property by virtue of the warranty deed. As such, the court stated that Forrest General (Forrest County) was an indispensable party. Because Forest General was indisputably a community hospital within the meaning of Mississippi Code Annotated § 41-13-10(c) (Rev.2005), and thus a political subdivision of the state as defined in Mississippi Code Annotated § 11 — 46—l(i) (Supp.2005), the court stated that it was entitled to the protection of the MTCA. The court stated that, because Davis failed to file a notice of claim within one year of the date of the alleged actionable conduct as required by the MTCA, the statute of limitations in which to do so had expired, and summary judgment was thus proper. Aggrieved by the trial court’s decision, Davis appeals, asserting that the trial court erred in granting the motion for summary judgment.

STANDARD OF REVIEW

¶ 4. This Court reviews a trial court’s grant of summary judgment de novo. Roffman v. Wilson, 914 So.2d 279, 281 (¶ 7) (Miss.Ct.App.2005) (citing Mozingo v. Scharf 828 So.2d 1246, 1249 (¶ 5) (Miss.2002); Owens v. Thomae, 904 So.2d 207, 208 (¶7) (Miss.Ct.App.2005)). The Court “must examine all evidentiary matters before [it], including admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss.2005). The moving party has the burden of demonstrating that no genuine issue of material facts exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact. Id. “If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor.” Id.

ISSUES AND ANALYSIS

¶ 5. Davis first contends that summary judgment was improper because the MTCA does not apply to her situation. She contends that she had no prior knowledge of any governmental entity’s involvement or ownership of Forrest Royale. She further contends that Forrest General may not assert tort claim immunity for a real estate development that is not part of its campus and not being utilized for hospital purposes. Davis claims that her suit was not against a governmental entity, but only against Forrest Royale. She asserts that the warranty deed specifically required Forrest General to use the property for hospital purposes, and that renting apartments to the public is not within the scope of those purposes. Alternatively, Davis argues that, even if the MTCA applies, the statute of limitations should not have begun running until she found out that Forrest General owned the property. Thus, she argues that she should be able to use the date of Forrest General’s motion to intervene, October 18, 2002, as the date from which the statute of limitations began to run.

¶ 6. Davis’s argument that the MTCA should not apply to investment property is untenable. Mississippi Code Annotated § 11-46-3(1) (Rev.2005) explicitly mentions immunity pertaining to proprietary functions. Furthermore, under a political subdivision’s broad power to purchase and hold real estate, the lesser power to lease is necessarily implied. See American-LaFrance v. City of Philadelphia, 183 Miss. 207, 184 So. 620, 623 (1938) (“Under [the power of a municipality to purchase and hold real estate], it is a general rule of interpretation that there is embraced and included the lesser power to lease”). Therefore, we find this argument without merit.

¶ 7. The MTCA provides the exclusive civil remedy against a governmental entity or its employees for acts or omissions which give rise to a suit. Miss.Code Ann. § 11-46-7(1) (Rev.2005); City of Jackson v. Sutton, 797 So.2d 977, 980 (¶ 10) (Miss.2001). Davis argues that the one year statute of limitations for filing the notice of claim in order to comport with the MTCA should not have begun to run until she discovered that Forrest General owned the property on which Forrest Ro-yale Apartments are located. We disagree. From the time of Davis’s injury on May 7, 2001, she was under a duty to exercise due diligence in ascertaining the proper defendant. Ray v. Keith, 859 So.2d 995 (¶ 16) (Miss.2003). The warranty deed, which listed Forrest County as the owner of the property, was available to Davis during this entire period, had she chosen to exercise due diligence by examining it. Her own failure to exercise due diligence does not excuse her duty to comply with the procedural requirements of the MTCA. Therefore, we find this argument without merit and affirm the decision of the lower court.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The filing of a notice of claim under the MTCA tolls the one year statute of limitations for "ninety-five (95) days from the date the chief executive officer of the state agency receives the notice of claim, or for one hundred twenty (12 0) days from the date the chief executive officer or other statutorily designated official of a municipality, county or other political subdivision receives the notice of claim, during which time no action may be maintained by the claimant unless the claimant has received a notice of denial of claim.” Miss.Code Ann. § 11-46-11(3) (Rev.2002).

      . “The Legislature of the State of Mississippi finds and determines as a matter of public policy and does hereby declare, provide, enact and reenact that the 'state' and its ‘political subdivisions’ ... are not now, have never been and shall not be liable, and are, always have been and shall continue to be immune from suit at law or in equity on account of any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract ... notwithstanding that any such act, omission or breach constitutes or may be considered as the exercise or failure to exercise any duty, obligation or function of a governmental, proprietary, discretionary or ministerial nature....” Miss.Code Ann. § 11-46-3(1) (Rev.2002) (emphasis added).


text:
    Richard H. DOBBINS, Appellant v. CITY OF STARKVILLE, Mississippi, Appellee.
    No. 2005-KM-00499-COA.
    Court of Appeals of Mississippi.
    March 14, 2006.
    Rehearing Denied Sept. 26, 2006.
    Mose Lee Sudduth, Columbus, attorney for appellant.
    Rodney Purvis Faver, attorney for ap-pellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On March 16, 2003, Officer Wesley Koehn, of the Starkville Police Department, arrived at the scene of a one car accident where he saw Richard Dobbins leave the wrecked car and walk towards another car. Also present was Officer Clay Moore who testified that Dobbins said he had been driving the wrecked car. Koehn said Dobbins appeared drunk due to his blood shot eyes, the smell of alcohol and his slurred speech. Dobbins was taken to the police station where an Intoxilyzer test was administered upon him. After failing the test, Dobbins was arrested and charged with driving under the influence, first offense.

II2. In Starkville Municipal Court, Dobbins was found guilty of DUI, first offense. Dobbins then appealed his conviction to the Oktibbeha County Circuit Court. After a trial on the matter, Dobbins was found guilty on February 14, 2005, of DUI, first offense. Dobbins was ordered to pay a fine of $750 and all court costs. The trial court ordered Dobbins to attend the Mississippi Alcohol Safety Education Program and suspended his license. Dobbins filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the motion on March 7, 2005. Dobbins perfected his appeal to this Court asserting the following issue, which we cite verbatim: “That the lower court committed reversible error in overruling Appellant’s objection into evidence BAC readings intoxilyzer 5000 which was replaced by another machine a short time after Appellant’s breath test and arrest without evidence as to why said machine was replaced.”

¶ 3. Finding no error, we affirm.

DISCUSSION

I. DID THE TRIAL COURT ERR IN ALLOWING INTO EVIDENCE THE INTOXILYZER RESULTS?

¶4. In his only issue on appeal, Dobbins argues that the trial court erred in allowing the Intoxilyzer results into evidence. Specifically, Dobbins claims that the State was required to put on proof as to why the Intoxilyzer machine used to test him was replaced by another machine some time after he was tested. Dobbins also states that a second calibration should have been done on the Intoxilyzer after his test. Our standard of review regarding the admission or exclusion of evidence is abuse of discretion. Floyd v. City of Crystal Springs, 749 So.2d 110, 113(¶ 12) (Miss.1999).

¶ 5. We first note that Dobbins concedes that he has found no case requiring two calibrations of the Intoxilyzer machine. Failure to provide relevant authority in support of an issue eliminates this Court’s obligation to review the issue. Williams v. State, 708 So.2d 1358, 1362-63(¶ 12) (Miss.1998).

¶ 6. Furthermore, Dobbins also “admits that the test would be admissible as long as the City of Starkville substantially complied with the requirements of § 63-11-19.” Mississippi Code Annotated Section 63-11-19 (Rev.2004) states that the Intoxi-lyzer machines shall be subject to periodic tests, “but not less frequently than quarterly,” in order to ensure the accuracy of the machines. According to the record, the particular Intoxilyzer machine used to test Dobbins was calibrated thirteen days prior to its use upon Dobbins.

¶ 7. The trial court stated that “[tjhere is no evidence that anything was wrong with the machine or that it was giving improper readings or anything.” The trial court found that the machine was working properly on the date in question. We can find no error in the trial court’s determination; thus, this issue is without merit.

¶ 8. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, PAY A FINE OF $750, ATTEND THE MASEP SCHOOL, AND SUSPEND DRIVER’S LICENSE IN ACCORDANCE WITH STATE LAW, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: KING, C.J.,

text:
    Ora Mae BALLARD, Appellant v. James WATKINS, Individually, d/b/a Village Center, Appellee.
    No. 2004-CA-00832-COA.
    Court of Appeals of Mississippi.
    May 30, 2006.
    Rehearing Denied Sept. 26, 2006.

      Bennie L. Jones, West Point, attorney for appellant.
    J. Niles McNeel, Louisville, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. Ora Mae Ballard appeals the Nox-ubee Circuit Court’s grant of summary judgment in favor of James Watkins, Individually d/b/a Village Center (Watkins). Because we find that Ballard failed to present any evidence of Watkins’ direct or constructive knowledge of the presence of an allegedly dangerous condition on his property, we affirm the circuit court’s grant of summary judgment.

FACTS

¶ 2. On March 19, 2000, Ballard accompanied her daughter and two granddaughters to a laundromat owned by Watkins. Ballard emerged from the back seat of her daughter’s vehicle carrying a basket of clothes, took two steps, and on the third step tripped on a soft drink can and fell to the ground. The only witnesses to the fall were Ballard and her two young granddaughters. Ballard was taken to the emergency room where it was determined that she had broken her left arm near the wrist and elbow. Watkins claimed that he was not informed of the accident until sometime in November of 2000, when he was contacted by his insurance company.

¶ 3. On November 29, 2000, Ballard filed a premises liability complaint against Watkins. Depositions were taken from Ballard, Watkins, and Watkins’ employee whose primary job duty it was to pick up debris outside of the laundromat. On March 16, 2004, the trial court entered summary judgment in favor of Watkins, finding that Ballard wholly failed to present any proof regarding how long the soft drink can had been in the parking lot, or that Watkins had constructive knowledge of the can’s presence in the parking lot.

ANALYSIS

¶4. This Court reviews summary judgment orders de novo. Grammar v. Dollar, 911 So.2d 619, 622(¶ 4) (Miss.Ct.App.2005). We review the evidence in the light most favorable to the party against whom the motion was made. Id. The burden of showing that no genuine issue of material fact exists lies with the moving party. Id. However, both parties maintain burdens of production which parallel their respective burdens of proof at trial. Watson v. Johnson, 848 So.2d 873, 877(¶ 13) (Miss.Ct.App.2002).

¶ 5. Ballard went to the laundromat as a patron, and is therefore considered a business invitee for purposes of a premises liability analysis. Ratcliff v. Georgia Pac. Corp., 916 So.2d 546, 549(¶ 9) (Miss.Ct.App.2005). Every property owner owes to invitees a duty of reasonable care in keeping his premises in a reasonably safe condition, or otherwise to warn invitees of unobvious dangerous conditions of which the owner knows or should know. Robinson v. Ratliff, 757 So.2d 1098, 1101(¶ 8) (Miss.Ct.App.2000) (citing Fulton v. Robinson Ind., 664 So.2d 170, 175 (Miss.1995)). In order for an invitee to recover in a slip-and-fall case, the plaintiff must:

(1) show that some negligent act of the defendant caused his injury; or (2) show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or (3) show that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous condition.

Grammar, 911 So.2d at 624(¶ 12) (citing Anderson v. B.H. Acquisition Inc., 771 So.2d 914, 918(¶ 8) (Miss.2000)). In the present case, Ballard did not allege that Watkins committed a negligent act that resulted in her injuries, nor that Watkins had actual knowledge of the soda can’s existence in the parking lot. Therefore, the question is whether Ballard raised a genuine issue of material fact as to whether Watkins had constructive knowledge of the soda can’s presence. Before reaching that question, we note that a soda can or similar debris in a parking lot is not a dangerous condition per se, but could be considered a dangerous condition depending on the circumstances. Although a business owner must keep his premises in a reasonably safe condition or warn of hidden perils, invitees are still charged with exercising ordinary care with regard to their own safety. Robinson, 757 So.2d at 1102(¶ 12). In the case sub judice, Ballard testified that she was not looking where she was walking. Nevertheless, we proceed with a constructive knowledge analysis.

¶ 6. Constructive knowledge exists where a dangerous condition exists for such a length of time that an owner exercising reasonable care should be alerted to its presence. Anderson, 771 So.2d at 918 (citing Drennan v. Kroger Co., 672 So.2d 1168, 1170 (Miss.1996)). Since Ballard presented no direct nor circumstantial evidence as to the length of time the drink can had been in the parking lot, there was no genuine issue of material fact that Watkins had constructive knowledge of the can’s presence. Since Ballard failed to bring forth any evidence on a required element of her claim, the trial court was correct in finding that no genuine issue of material fact exited.

¶ 7. THE JUDGMENT OF THE NOX-UBEE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

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