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    B. Sykes STURDIVANT, David Jackson and Kelly Greenwood, Appellants, v. Brenda D. TODD, Terry O. Todd, James Newton and Chessie Denley, Appellees.
    No. 2005-CA-01937-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.
    Rehearing Denied May 29, 2007.

      James Walker Sturdivant, Greenville, attorney for appellants.
    Alison Oliver Kelly, attorney for appel-lees.
    Before MYERS, P.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Brenda D. Todd, Terry 0. Todd (the Todds), James Newton, and Chessie Den-ley filed a complaint to establish three claims of title by adverse possession against B. Sykes Sturdivant, David Jackson, and Kelly Greenwood (collectively, Sturdivant). The complaint asserted that the Todds, Newton, and Denley each had acquired fee simple title to separate portions of land situated in Tallahatchie County through adverse possession. After a hearing, the Chancery Court of Tallahat-chie County found that the plaintiffs had proven the elements of adverse possession. Sturdivant has appealed, arguing (1) that eleven of the chancellor’s fact-findings were unsupported by substantial evidence; (2) that the chancellor’s decision was manifestly erroneous because the plaintiffs had failed to prove the elements of adverse possession by clear and convincing evidence; and (3) that, if this Court affirms the adverse possession finding, Sturdivant is entitled to a prescriptive easement across the adversely possessed land.

¶ 2. We find that the chancellor’s decision was supported by substantial evidence and was not manifestly erroneous. Therefore, we affirm.

FACTS

¶ 3. This case concerns several parcels of land located along Mississippi Highway 35 approximately three miles south of Charleston, Mississippi. In that area, Highway 35 runs roughly north-south. By warranty deed dated August 17, 2004, Sturdivant, Jackson, and Greenwood purchased from Ray Carroll and Larry Joe Lindley an approximately 267 acre parcel of land including the east half of Section 10, Township 24 North, Range 2 East in Tallahatchie County, less and except certain properties listed in the deed. Greenwood testified that the properties excepted from the purchase fronted the east side of Highway 35. The excepted properties included three parcels situated in a row on Highway 35; the northernmost of these parcels was a 1.2 acre parcel owned by Brenda and Terry Todd, south of the Todd parcel was a one-acre parcel owned by Chessie Denley, and south of the Denley parcel was a parcel owned by Jim Newton. The Todds, Denley, and Newton all had their residences on their respective frontage properties. Newton also owned an approximately 5.5 acre parcel of unimproved land that bordered the rear of his frontage property and the rear of Denley’s frontage property. Thus, the Todds, Den-ley, and Newton each owned property fronting the east side of Highway 35, and Sturdivant owned a large area behind the three properties.

¶ 4. Greenwood, a registered professional land surveyor, performed a survey dated January 14, 2005, of a part of the 267 acre parcel. In performing the survey, Greenwood surveyed several properties excepted from the deed in order to obtain the boundaries of his larger parcel. Greenwood surveyed the Todd, Denley, and Newton properties. At some point, Greenwood discovered that, according to the calls of the deeds, there was a gap between the Todd and Denley properties. That gap constituted an approximately three-acre parcel of highway frontage property that was not excepted from Stur-divant’s deed and thus was owned by Stur-divant. Greenwood’s survey indicates that the three-acre parcel has 108.66 feet of highway frontage between the Todd and Denley properties. The three-acre parcel extends east between the Todd and Denley properties, and, beyond the Denley property, extends further east between the Todd property and Newton’s 5.5 acre parcel. Greenwood testified that Sturdivant planned to use the three-acre parcel to build a driveway leading from Highway 35 to a planned cabin to be located on his 267 acre parcel.

¶ 5. Subsequent to Greenwood’s discovery, the Todds, Denley, and Newton filed a complaint alleging that they each had adversely possessed portions of the approximately three-acre parcel. The Todds and Denley testified that, for the duration of their ownership, they believed their properties shared a common north-south boundary line marked by a ditch running along the boundary line. This ditch is located on the three-acre parcel. Terry Todd testified that he believed his property extended north from the ditch to a two inch iron pipe located in the ground. Den-ley also contended that the northeast corner of her property was a one and one-half inch iron pipe located in the ground. Den-ley bought her one-acre parcel in 1999 from John Malcolm Brooks. William Clinton Brooks testified that his mother had bought the property in 1970 or 1971, and that his brother, John Malcolm Brooks, had inherited the property from his mother and sold it to Denley. William Clinton Brooks testified that, for the duration of the Brooks family’s ownership, they had considered the northern boundary line of their property to be the ditch. Newton testified that he also had believed the Todd property formed a boundary with the Den-ley property.

¶ 6. Newton testified that he and his wife had bought the 5.5 acre parcel of land behind his house in 1983 from Floyd Brown, a predecessor in title to the 267 acre parcel. In 1983, Brown owned the east half of Section 10, Township 24 North, Range 2 East in Tallahatchie County, less and except the specified highway frontage properties. Brown sold Newton a portion of this property. Newton testified about the purchase. Joe Murphy owned a frontage parcel south of Newton. Newton testified that he told Brown that he wanted to buy land from him “all the way to the Todd line to the north and Murphy to the south.” Newton testified that he and Brown walked east from the southeast corner of the Murphy property as far as Newton wanted to go. At that location, he and Brown placed an iron pipe. Then, they walked north toward the Todd property and placed an angle iron at the Todd boundary line. Next, he and Brown took measurements from the existing property lines to the monuments and then instructed a lawyer to draft a deed to Newton with a legal description of the property that specified the boundaries marked by the monuments they had placed. Newton testified that he understood that those monuments marked the boundaries of the property Brown was selling to him. In 1986, Newton’s wife, Janice M. Newton, conveyed all of her interest in the property to Newton through a quitclaim deed. Newton testified that, for the duration of his ownership of the 5.5 acre parcel, he believed that the 5.5 acre parcel bounded the Todds on the north. Terry Smith, a registered professional land surveyor, testified that he located the monuments described by Newton, but that the monuments did not match the calls of Newton’s deed.

¶ 7. The chancellor viewed the property on the day of the hearing. The chancellor found from his view of the property and from the testimony that the Todds, Den-ley, and Newton had proven by clear and convincing evidence every element of adverse possession. The chancellor ordered the plaintiffs to obtain a survey and legal description of the adversely possessed property. On October 21, 2005, the court entered a final decree setting out the new legal descriptions of each parcel owned by the respective plaintiffs.

¶ 8. Further facts are adduced below. Since this appeal involves three claims of adverse possession against Sturdivant, when necessary for clarity, we will refer to the property disputed between Sturdivant and the Todds as the Sturdivant-Todd disputed property, to that disputed between Sturdivant and Denley as the Sturdivant-Denley disputed property, and to that disputed between Sturdivant and Newton as the Sturdivant-Newton disputed property.

STANDARD OF REVIEW

¶ 9. This Court adheres to a limited standard of review of the decisions of a chancellor. Nichols v. Funderburk, 883 So.2d 554, 556(¶ 7) (Miss.2004). We will reverse only when the chancellor’s determinations were manifestly wrong or clearly erroneous, or when the chancellor applied an incorrect legal standard. Id. A finding that the proof was sufficient to sustain a claim of adverse possession is a fact-finding that requires our application of the substantial evidence/manifest error test. Walker v. Murphree, 722 So.2d 1277, 1280(¶ 15) (Miss.1998). If substantial evidence supports the chancellor’s fact-findings, this Court must affirm, even though we “might have found otherwise as an original matter.” Nichols, 883 So.2d at 556(¶ 7). And, where the chancellor has failed to make specific findings, we will assume that the chancellor resolved such issue in favor of the appellee. Id.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT JAMES NEWTON AND FLOYD BROWN DISCUSSED AND MARKED THE CORNERS OF THE PROPERTY BOUNDARY LINES WITH ANGLE IRONS PRIOR TO THE EXECUTION AND DELIVERY OF THE WARRANTY DEED, WHICH WARRANTY DEED WAS CLEAR AND UNAMBIGUOUS AND DID NOT CONTAIN OR MENTION ANY OF THE MARKED PROPERTY IN THE LEGAL DESCRIPTION?

¶ 10. This issue is the first of eleven attacks on specific fact-findings by the chancellor. In this argument, Sturdivant contends that the chancellor erred by crediting Newton’s testimony that, in 1983, he and Brown discussed and marked the corners of the 5.5 acre parcel. Sturdivant argues that the chancellor could not consider Newton’s testimony as evidence of adverse possession because the best proof of Brown and Newton’s intent was the 1983 deed from Brown to Newton, the calls of which did not correspond to the monuments laid by Newton and Brown.

¶ 11. This argument is without merit. “[Possession is adverse in which the holder claims, and intends to claim title, without regard to the fact that the possession and claim is held and made under an honest, but mistaken, belief that the land is within the calls of his deed.” Askew v. Reed, 910 So.2d 1241, 1244(¶ 9) (Miss.Ct.App.2005) (quoting Metcalfe v. McCutchen, 60 Miss. 145, 154 (Miss.1882)). Newton’s testimony about what he and Brown understood the boundaries of the 5.5 acre parcel to be was relevant to show that Newton believed he had purchased the disputed property from Brown. Newton was entitled to show that, based upon his purchase negotiations with Brown, Newton held the property under an honest, but mistaken, belief that the land was within the calls of his deed. The chancellor did not err by finding that Newton and Brown discussed and marked the corners of the 5.5 acre parcel.

II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT NEWTON ACQUIRED RECORD TITLE TO THE PROPERTY IN DISPUTE WHEN HE ACCEPTED THE 1983 WARRANTY DEED AND THE 1986 QUITCLAIM DEED?

¶ 12. Next, Sturdivant challenges the chancellor’s finding that “Newton and his wife purchased the property in question in 1983 and in 1986 his wife signed a quitclaim deed giving him full ownership of the property.” Sturdivant contends that the chancellor’s use of the words “the property in question” meant that this statement by the chancellor equated with a finding that Newton and his wife had acquired record title to the Sturdivant-Newton disputed property. Sturdivant claims the finding that Newton had record title to this disputed property was manifestly erroneous.

¶ 13. This issue is without merit. The chancellor never expressly found that Newton had acquired record title to the Sturdivant-Newton disputed property, but rather found that Newton had acquired title to that property by adverse possession. It is manifest from the chancellor’s opinion that “the property in question” that the chancellor was referring to was Newton’s 5.5 acre parcel to which he had record title, not to the Sturdivant-Newton disputed property. Otherwise, the finding that Newton had adversely possessed that property would have been a nonsensical result. Indeed, instead of the semantic confusion urged by Sturdivant, the chancellor’s opinion clearly communicates the factual and legal underpinnings for its holding that the Todds, Denley, and Newton proved their claims of adverse possession.

III. WHETHER THE TRIAL COURT ERRED IN FINDING THAT NEWTON CLEARED THE UNDERBRUSH AND PLANTED AZALEA BUSHES ON THE PROPERTY IN DISPUTE?

¶ 14. In his discussion of Newton’s pos-sessory acts, the chancellor found that Newton had cleared the underbrush in the woods and had planted azalea bushes. Sturdivant argues that this was an implicit finding that Newton had cleared underbrush and planted azalea bushes on the Sturdivant-Newton disputed property, and not only on the property to which Newton had record title. Sturdivant argues that the implicit finding was manifest error because Newton never specified that his clearing underbrush and planting azaleas was on the Sturdivant-Newton disputed property.

¶ 15. The transcript shows that Newton testified that he had cleared underbrush and planted azaleas on the property. That was exactly what the chancellor found. We review the evidence supporting Newton’s adverse possession claim below, including the chancellor’s findings on Newton’s use of the Sturdivant-Newton disputed property.

IV. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE NEWTON PROPERTY IN DISPUTE IS VISIBLE FROM HIGHWAY 35?

¶ 16. In his finding that the plaintiffs’ possession of the disputed property was open, notorious, and visible, the chancellor stated that “Newton offered uncontrovert-ed evidence that the possession of the land was done in an open manner, as the land was visible from Highway 35.” Sturdivant argues that this finding was manifestly erroneous because it was contradicted by the chancellor’s later statement that “[t]he Respondents only offered evidence that no one could visibly see the [Sturdivant-New-ton disputed] property from the highway.” Contrary to Sturdivant’s argument, the chancellor’s statements did not conflict; in the second statement, the chancellor was acknowledging Sturdivant’s evidence, not finding that the Sturdivant-Newton disputed property could not be seen from Highway 35.

¶ 17. Sturdivant also argues that the finding that the Sturdivant-Newton disputed property was visible from Highway 35 was manifestly erroneous because there was no evidence to that effect. The chancellor’s finding was not manifestly erroneous. The Sturdivanb-Newton disputed property was located to the east and north of Newton’s 5.5 acre parcel. While Newton testified that people on Highway 35 could not see “all the way to the back” of the property, Newton testified that a substantial part of the rear, or eastern, portion of his property could be seen from Highway 35. The chancellor’s opinion was also informed by his view of the property. This issue is without merit.

V.WHETHER THE TRIAL COURT ERRED IN FINDING THAT WITH REGARD TO THE NEWTON PROPERTY IN DISPUTE NEWTON HAD EXCLUSIVE OWNERSHIP, IS THE ONLY ONE WHO POSSESSED IT, AND THAT NO ONE EVER TRIED TO EVICT HIM?

¶ 18. In his finding that Newton had met the elements of adverse possession regarding the Sturdivant-Newton disputed property, the chancellor found that “Newton testified that since 1986, he has had exclusive ownership of the property. Newton stated that he is the only one who possessed the property. Newton also stated that no one has ever tried to evict him from the property or claim the property to be theirs until this dispute arose.” Sturdi-vant argues that “the property” referred to by the chancellor was not the Sturdi-vant-Newton disputed property, but was Newton’s 5.5 acre parcel to which he had record title.

¶ 19. This argument is without merit. In this case, the testimony indicated that each plaintiff had believed, until put on notice by Sturdivant, that the calls of his or her deed included part of the disputed property. When a plaintiff referenced his property at the trial, it was clear the plaintiff was talking about the entire parcel of land he had considered his property from the date of purchase, including that portion now disputed with Sturdivant. The chancellor’s finding that Newton testified about his exclusive possession of the Stur-divanb-Newton disputed property was supported by substantial evidence.

VI. WHETHER THE TRIAL COURT ERRED IN FINDING THAT DENLEY AND BROOKS MAINTAINED AND POSSESSED THE PROPERTY IN DISPUTE FOR A CONTINUOUS AND UNINTERRUPTED PERIOD OF TEN YEARS?

¶ 20. The chancellor found that Denley and her predecessors in title, the Brooks family, had maintained and possessed the Sturdivant-Denley disputed property for a continuous and uninterrupted period of ten years. Sturdivant challenges this fact-finding by contending that there was insubstantial evidence that Denley and Brooks had kept the Sturdivanb-Denley disputed property mowed for a continuous and uninterrupted period of ten years. We observe that there was evidence other than lawn mowing establishing Denley’s possession and maintenance of the disputed property, which we will address in our review of the sufficiency of the evidence of adverse possession below. We believe the challenged finding of the chancellor is more appropriately addressed by that discussion.

VII. WHETHER THE COURT ERRED IN FINDING THAT THE DENLEY DRIVEWAY ON THE PROPERTY IN DISPUTE HAD BEEN USED ON A DAILY BASIS?

¶ 21. Denley had a circular driveway in front of her house. The northern end of the circular driveway was on the Sturdivanb-Denley disputed property. The chancellor found that Terry Todd and William Brooks had testified that the circular driveway “is used on a daily basis.” Sturdivant points out that neither Terry Todd nor William Brooks testified that the driveway was used on a daily basis. Indeed, Terry Todd testified that Denley’s circular driveway had been there for the twenty-three years he had lived next door to her property, and William Brooks testified that the circular driveway had always been the driveway leading to the house. No party testified that the driveway had been used on a daily basis. However, it was undisputed that the circular driveway was the sole means of ingress and egress to Denley’s house, a house that had functioned as an occupied residence for at least twenty-three years. Therefore, while the chancellor clearly erred in finding that Terry Todd and William Brooks testified that the driveway was used on a daily basis, there was substantial evidence before the chancellor that the driveway was used with a frequency approximating daily use. The error was harmless and immaterial to the chancellor’s holding.

VIII. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE DENLEY CHILDREN PLAYED IN THE DITCH ON THE PROPERTY IN DISPUTE?

¶ 22. In considering the adverse possession claims of the Todds and Denley, the chancellor found that “both parties’ children played in the ditch when they were youths.” This finding was supported by the testimony of the Todds, who stated that both the Todd children and the Brooks children had played in and around the ditch dividing the Sturdivant-Todd disputed property from the SturdivanL-Den-ley disputed property. Sturdivant argues that the chancellor’s finding was manifestly erroneous because the chancellor said that “both parties’ children” had played on the property, and Brooks was not a party to the lawsuit.

¶ 23. This issue is without merit. A period of adverse possession may be tacked to that of a predecessor in title if there is privity of contract. Crowder v. Neal, 100 Miss. 730, 736, 57 So. 1, 3 (1911). Therefore, the activities of the Brooks family, Denley’s predecessors in title, on the Sturdivant-Denley disputed property were relevant to Denley’s adverse possession claim. In the chancellor's statement that both parties’ children had played on the disputed property, the chancellor obviously intended to refer to the Todd and Brooks children. The chancellor’s error in stating that both parties’ children played in the ditch was harmless because the chancellor was obviously referring to the Todd and Brooks children.

IX. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE TODDS AND DENLEY ORALLY DECRIED CLAIM OF OWNERSHIP OF THE PROPERTY IN DISPUTE TO FRIENDS, RELATIVES, AND NEIGHBORS?

¶ 24. The chancellor found that the Todds and Denley had offered proof of their claims of ownership of the disputed properties through uncontroverted testimony that each party had “orally decried claim of ownership to friends, relatives, and neighbors.” Sturdivant argues that there was insubstantial evidence in the record to support this finding. In fact, Terry Todd testified that, during his twenty-three year ownership of his property, he had told others that his property went to the ditch. Brenda Todd testified that, during that time, she imagined she had told others that her property went to the ditch. It was within the chancellor’s discretion to determine the weight and credibility of the Todds’ testimony.

¶ 25. However, while Denley testified that she believed for the duration of her ownership that her property went to the ditch, she never testified that she told anyone that her property went to the ditch. Therefore, the chancellor’s finding that Denley had orally decried her claim of ownership to others was manifestly erroneous. But even without this finding, as discussed below, the chancellor’s holding that Denley had proven the elements of adverse possession by clear and convincing evidence was supported by substantial evidence.

¶ 26. Sturdivant also argues that the testimony supporting the plaintiffs’ oral declarations of ownership did not constitute clear and convincing evidence supporting the adverse possession element of claim of ownership. However, the chancellor’s order identifies other evidence supporting the element of claim of ownership; the chancellor’s holding that the plaintiffs had met their burden of proof of that element did not rest solely upon the plaintiffs’ oral declarations of ownership. We address the evidence pertaining to the plaintiffs’ claims of ownership of the disputed properties below.

X. WHETHER THE TRIAL COURT ERRED IN FINDING THAT DENLEY TESTIFIED THAT WITH REGARD TO THE PROPERTY IN DISPUTE NO ONE HAS EVER TRIED TO EVICT HER, CLAIMED OWNERSHIP, OR TRIED TO USE THE PROPERTY?

¶ 27. The chancellor found that Denley testified that, with respect to the north side of her property, no one had ever tried to evict her, claimed ownership, or tried to use the property. Sturdivant argues that the chancellor’s finding that Denley denied any disputes over her northern boundary line was manifestly erroneous. This issue is without merit. In Denley’s testimony, she indicated that the north boundary of her property was the ditch lying between her property and the Todds. Denley testified to having had a dispute with Newton over her property’s south boundary line, but testified that she had no dispute with anyone about her northern property line, which she believed to be the ditch.

XI. WHETHER THE TRIAL COURT ERRED IN FINDING THAT DEN-LEY’S POSSESSION OF THE PROPERTY IN DISPUTE HAD BEEN PEACEFUL?

¶ 28. The chancellor found that Denley testified that her use of the Sturdivant-Denley disputed property had been peaceful. Sturdivant argues that this finding was manifestly erroneous because Denley testified to her peaceful use of her house, not her peaceful use of the disputed property. In support of this argument, Sturdi-vant quotes the following portion of Den-ley’s testimony on direct examination:

Q. Have you come and gone openly so that everybody knows that’s your house? A. That’s right. I do.
Q. Okay. And would you say that your living there over the past six years has been peaceful?
A. Peaceful.

¶ 29. The above questions were part of a line of questioning by Denley’s counsel that began with counsel clarifying that Denley had always believed that the northern boundary of her property was the ditch. Counsel then asked Denley a series of questions about her use of “the property.” It was plain from the testimony that it was the understanding of both counsel and Denley that these questions referred to Denley’s use of the entire parcel of property which Denley had believed she owned, including the Sturdivant-Denley disputed property. The application of common sense to Denley’s testimony indicates that the above-quoted testimony referred to the entire parcel which Denley believed she owned, including the Sturdi-vant-Denley disputed property. The chancellor’s finding was supported by substantial evidence.

XII. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE PLAINTIFFS MET THE BURDEN OF PROOF REQUIRED TO ESTABLISH A CLAIM OF ADVERSE POSSESSION, AND WHETHER THE PLAINTIFFS ENGAGED IN SUFFICIENT ACTS OF POSSESSION TO “FLY THE FLAG” AND PUT THE DEFENDANTS ON NOTICE THAT THEY ADVERSELY CLAIMED THE PROPERTY IN DISPUTE?

¶ 30. A landowner in Mississippi may be involuntarily divested of his legal title to land through adverse possession. Miss.Code Ann. § 15-1-13 (Rev.2003). Sturdivant argues that the chancellor’s finding that the Todds, Denley, and Newton had established their adverse possession claims was unsupported by substantial evidence and was manifestly erroneous. A party claiming adverse possession must show six elements by clear and convincing evidence. Blackburn v. Wong, 904 So.2d 134, 136(¶ 15) (Miss.2004). “[F]or possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Id. A period of adverse possession may be tacked to that of a predecessor in title if there is privity of contract. Crowder, 100 Miss. at 736, 57 So. at 3. As some of the facts pertain to all three adverse possession claims, we address all three claims together.

(1) Under claim of ownership

¶ 31. Terry and Brenda Todd testified that, from the time they purchased their highway frontage property twenty-three years prior to the hearing, they believed the southern boundary of their property was the ditch. Further, the Todds communicated to others that their property was bounded by the ditch. Den-ley also testified that, for the six years she had owned the property, she believed that the northern boundary of her property was the ditch. Brooks, Denley’s predecessor in title, testified that, since 1970 or 1971, he believed the northern boundary was the ditch. Newton testified that, since purchasing the 5.5 acres from Brown in 1983, he believed that he owned all of the property between the monuments set by him and Brown. There was substantial evidence that all three plaintiffs held the land under claim of ownership.

(2) Actual or hostile

¶ 32. Actual possession has been defined as “effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.” Blankinship v. Payton, 605 So.2d 817, 819-20 (Miss.1992). Possession includes the intent to exclude others except with the occupant’s consent. Id. at 820. Possession is hostile and adverse when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed. Alexander v. Hyland, 214 Miss. 348, 357, 58 So.2d 826, 829 (1952). “[T]he fact that claimant took possession under a deed is [ ] admissible to show the hostile character of his occupancy.” Rawls v. Parker, 602 So.2d 1164, 1169 (Miss.1992).

¶ 33. The chancellor found that the Todds had proven that they actually possessed the SturdivanL-Todd disputed property. This finding was supported by substantial evidence. The chancellor observed that, while there was some dispute over whether the Todds and Denley maintained their land up to the ditch, the Todds testified that they had cleared the ditch on numerous occasions to rid it of snakes and other pests so that their children could play in the ditch. Further, Terry Todd testified that there was a line of trees between the ditch and his lawn, and that he had kept his lawn mowed up to the tree line continuously for twenty-three years. Terry Todd also testified that, on an occasional basis, he cleared out underbrush from under the trees along the ditch and that his children played in the ditch. Terry Todd also testified that there were pathways across the disputed property leading to the Denley residence. Terry and Brenda Todd both testified that, over the years, they spent time in their front yard, which included part of the Sturdivant-Todd disputed property.

¶34. There was substantial evidence that the Todds’ possession was hostile because they testified that they believed that the Sturdivant-Todd disputed property was within the calls of their deed. Terry Todd testified that, when he bought the property, he walked the property with the seller, who indicated that the property’s southern boundary was the ditch. The seller also pointed out an iron pipe marking the southeast boundary of the Todd property at the ditch. At the hearing, the chancellor indicated that he had seen that iron pipe. And, the chancellor stated that, during his view of the property, he observed the use of the property and actual possession was obvious. Finally, the Todds paid taxes on the Sturdivant-Todd disputed property.

¶ 35. The chancellor found that Denley had actually possessed the Sturdivant-Denley disputed property. Denley testified that she thought that the southern boundary of her property was the ditch that divided her property from the Todd property. John B. Denley, who had read the water meter at the Denley house ever since she moved in, testified that Denley kept her yard mowed to the ditch. Terry Todd testified that Brooks had kept the yard mowed up to the ditch. William Brooks testified that his family had cut the grass up to the ditch and had placed pens on the disputed property. A substantial portion of Denley’s circular driveway is located on the disputed property. The chancellor found that the driveway is used on a daily basis. There was substantial evidence that Denley actually and hostilely possessed the Sturdivant-Denley disputed property.

¶ 36. The chancellor found that Newton had actually possessed the Sturdi-vant-Newton disputed property, located to the north and east of the 5.5 acre parcel to which Newton had record title. Newton testified that he believed that the Sturdivanb-Newton disputed property was embraced by the calls of his deed. He testified that he and Brown had set monuments demarcating the amount of property Newton was buying from Brown in 1983. Newton testified that he decided to keep the land wild and unimproved, but that he occasionally cleared underbrush on the parcel and had planted azaleas on the parcel. While Newton did not specify whether those activities occurred on the Sturdivanb-Newton disputed property, it was apparent from Newton’s testimony that he was referring to the entire parcel that he believed he had purchased from Brown. The chancellor stated that he viewed the monuments on the ground and Newton’s use of the property, and that actual possession was obvious to the court. Moreover, the chancellor noted that the applicable Tallahatchie County tax map supported Newton’s claim because the map showed that Newton’s property bounded the Todd property on the north side. The chancellor’s finding that Newton actually and hostilely possessed the Sturdivant-Newton disputed property was supported by substantial evidence.

(S) Open, notorious, and visible

¶ 37. Mere possession does not satisfy the requirement that possession be open, notorious, and visible. Craft v. Thompson, 405 So.2d 128, 130 (Miss.1981). Beyond mere possession, an adverse possessor “must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.” Blankinship, 605 So.2d at 820. “[T]he occupancy, under claim of ownership, must be actual, open, notorious, and visible.” People’s Realty & Dev. Corp. v. Sullivan, 336 So.2d 1304, 1304 (Miss.1976) (quoting Berry v. Houston, 195 So.2d 515, 518 (Miss.1967)). Sporadic and temporary activity on the property is insufficient to provide notice of an adverse claim. Id. It is also the rule that:

[B]oth the quality and quantity of pos-sessory acts necessary to establish a claim of adverse possession may vary with the characteristics of the land. Adverse possession of “wild” or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands. The question in the end is whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder upon notice that the lands are held under an adverse claim of ownership.

Lynn v. Soterra, 802 So.2d 162, 167(¶ 17) (Miss.Ct.App.2001) (quoting Rawls v. Parker, 602 So.2d 1164, 1168 (Miss.1992)).

¶ 38. Sturdivant contends that the pos-sessory acts of the Todds, Denley, and Newton on their respective portions of the disputed property were insufficient to put the record title holder on notice of an adverse claim. Sturdivant cites several cases in support of his proposition that acts of possession such as lawn mowing, parking cars, cultivating a garden, and placing items of personal property on the land of another are insufficiently open, notorious, and visible to establish a party’s adverse possession claim. We briefly discuss those cases.

¶ 39. In Walker, this Court affirmed the chancellor’s rejection of Walker’s claim that he had adversely possessed a part of an adjoining parcel. Walker, 722 So.2d at 1282(¶ 20). The claimant’s possessory acts were that (1) he personally stored junk cars on the property, (2) he occasionally parked two eighteen wheelers on the property, (3) he mowed the property, and (4) one of his tenants worked a garden on the property. Id. at (¶ 18). When Walker placed houses on the property, Murphree, the record title holder, filed a petition for injunctive relief. Id. at 1278(¶ 2). This Court found that the pertinent question in assessing the open, notorious, and visible element is whether the claimant’s posses-sory acts were enough to put the true owner on notice of an adverse claim. Id. at 1281(¶ 17) (quoting Rawls, 602 So.2d at 1168). Mindful of our standard of review, we found that the chancellor was within his discretion in finding that Walker’s posses-sory acts were insufficient to provide Mur-phree with notice. Id. at 1282(¶ 20). The Court observed that Murphree had filed a claim for relief after Walker put houses .up on the property, which indicated that Walker’s acts prior to erecting the houses had been insufficient to place Murphree on notice of an adverse claim. Id. at (¶ 18). The Court also noted that Walker never filed a counter-claim to establish his title through adverse possession, but instead used adverse possession as a defense to Murphree’s petition for injunctive relief. Id. at (¶ 19).

¶ 40. In Rawls, the true owner, Rawls, filed a complaint seeking injunctive relief and confirmation of title, asserting that her neighbor, Parker, had encroached on her property by erecting a fence enclosing part of her property. Rawls, 602 So.2d at 1165. In defense, Parker claimed to have adversely possessed the property owned by Rawls. Id. Parker testified that, for over ten years, he had placed items of personal property and cultivated a garden on the disputed property. Id. at 1168. The chancellor found that Parker had proven adverse possession because these acts were open, notorious, and visible to Rawls. Id. The supreme court reversed. Id. at 1169. The court found that Parker’s placement of personal property on the disputed land had been reasonably interpreted by Rawls as dumping, not as chattel storage evincing an adverse claim. Id. at 1168. The court also found that Parker had not shown that he had possessed the property to the exclusion of Rawls. Id. at 1169. Further, Rawls acted' to protect her property after Parker erected a fence, indicating that Rawls was not put on notice by Parker’s prior acts that Parker was claiming the property adversely. Id.

¶ 41. In Simcox v. Hunt, 874 So.2d 1010, 1015(¶ 20) (Miss.Ct.App.2004), Sim-cox planted grass, mowed the grass, spread dirt, and spread gravel on the disputed property. The chancellor rejected Simcox’s adverse possession claim. Id. at 1016(¶ 22). Sturdivant argues that Simcox stands for the proposition that acts similar to Simcox’s are insufficiently open, notorious, and visible to support a finding of adverse possession. However, in Simcox, this Court affirmed the chancellor’s rejection of the advei-se possession claim because Simcox had used the disputed property with the permission of the true owner. Id. at 1015(¶ 21). In People’s Realty & Dev. Corp., the court found that a single timber harvest, the occasional pasturing of cattle, and nailing wire strands to trees to create a fence that could not be seen except by going across a reed brake were insufficient to establish adverse possession in light of the additional fact that the claimant had attempted to purchase the property from the true owner on two prior occasions. People’s Realty & Dev. Corp., 336 So.2d at 1304.

¶ 42. Thus, in both Simcox and People’s Realty & Dev. Corp., the court rejected the claim of adverse possession in part due to evidence negating the would-be adverse possessor’s allegation of exclusive possession of the property. In this case, all of the evidence showed that each claimant’s possession of the property was exclusive and under claim of ownership. In Walker and Rawls, the fact that the true owners took action after the erection of a fence and houses on the disputed properties indicated that the adverse possession claimant’s prior acts were insufficient to have placed the true owner on notice. As discussed below, in the instant case, the totality of the evidence before the chancellor substantially supported a finding that the possession of the disputed properties by the Todds, Denley, and Newton was open, notorious, and visible.

¶ 43. The chancellor first addressed the sufficiency of the possessory acts of the Todds and Denley. The chancellor found that the Todds and Denley had always openly and visibly used the disputed property as if it were their own. The chancellor found their possession was open because their use of the land in question was visible from Highway 35. John B. Denley, the water association employee, testified that he had read the Todds’ water meter for over twenty years, and had read the Denley water meter as well. He stated that there was no water meter between the Todds and Denley, and that he never had any reason to believe that there was a property owner between the Todds and Denley. He stated that both the Todds and Denley, and her predecessor, the Brooks family, kept the property mowed to the ditch. And, the Todds, Denley and Brooks indicated that they had always believed they owned neighboring properties divided by the ditch. The chancellor also found that Denley’s circular driveway had been in use for the statutory period for adverse possession. Further, the tax map showed that the Todd property adjoined the Denley property. The Todds paid taxes on the Sturdivant-Todd disputed property. “[Pjayment of taxes is one factor as to possession.” Buford v. Logue, 832 So.2d 594, 602(¶ 22) (Miss.Ct.App.2002). Denley’s property was exempt from taxation as a homestead, but the tax map showed that her property adjoined the Todd property.

¶ 44. The chancellor found from his view of the land at issue that “the possession of the property ... was blatantly clear that it was open, notorious, and visible.” This opinion was supported by the aerial map of the land at issue that was admitted into evidence. On that map, it appears that the Todd and Denley properties he next to each other and were landscaped up to a tree line that, according to Todd’s testimony, was at the ditch.

¶45. The chancellor found Newton’s claim to be more problematic because Newton had kept the property he believed he had purchased from Brown in a wild state in order to preserve a buffer between his house and the 267 acre parcel, which he feared would be logged. The chancellor recognized the rule that adverse possession of wild or unimproved lands can be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands. Rawls, 602 So.2d at 1168. The chancellor found that Newton’s possession of the Sturdivanb-Newton disputed property was open, notorious, and visible. The chancellor stated that, during his visit to the property, he had viewed the monuments in the ground that indicated the intended boundaries of the property. The chancellor stated that the property he viewed was cleared out under the trees. The chancellor further noted that the tax map indicated that the disputed property was owned by Newton.

¶ 46. We have identified another aspect of the evidence that supports the chancellor’s finding of Newton’s open, notorious, and visible use. “Acquiescence in a wrong boundary line will not establish it as the true line, but such acquiescence for a long period of time is evidence that such line is the true line.” Hulbert v. Fayard, 230 Miss. 1, 10, 92 So.2d 247, 251 (1957). The court has also stated in the adverse possession context that, “recognition of, and acquiescence in, a line as the true boundary line, if continued for a sufficient length of time, will afford a conclusive presumption that the line thus acquiesced in is the true boundary line.” York v. Haire, 236 Miss. 711, 716, 112 So.2d 245, 247 (1959). The record shows that Brown, Sturdivant’s predecessor in title, owned the 267 acre parcel until 2003, when it was foreclosed upon. The chancellor accepted the testimony of Newton that, before he purchased the 5.5 acre parcel from Brown, he and Brown walked the land and placed monuments at the intended boundaries of the parcel. Newton testified that he and Brown had intended the monuments to reflect the true boundaries of the parcel. There was no evidence of any dispute between Newton and Brown as to the boundary lines of Newton’s 5.5 acre parcel. Therefore, the evidence accepted by the chancellor showed that Brown, the prior true owner of the Sturdivanb-Newton disputed property, had acquiesced in the boundaries marked by the monuments from 1983 until he relinquished ownership of the property in 2003.

¶ 47. In addition to the above evidence of the three claimants’ open, notorious, and visible possession of the disputed properties, the chancellor also based his holding upon Greenwood’s testimony that, before he purchased the 267 acres, he told the seller that the disputed property might be adversely possessed and that the seller might not even own the property due to the adverse possession. “A possession which is adverse and actually, known to the true owner is equivalent to a possession which is open and notorious and adverse.” McCaughn v. Young, 85 Miss. 277, 294, 37 So. 839, 842 (1905) (quoting Holtzman v. Douglas, 168 U.S. 278, 284, 18 S.Ct. 65, 42 L.Ed. 466 (1897)). Here, Greenwood had admittedly received notice from three claimants’ uses of the disputed properties that the disputed properties might have been adversely possessed. All of the evidence before the chancellor indicated that everyone involved in this case believed the disputed properties to have been within the calls of the claimants’ deeds until sometime prior to Sturdivant’s purchase of the 267 acre parcel. By that time, the three claimants’ exclusive dominion and control over the disputed properties had been continuous and uninterrupted for over the ten year period required for adverse possession. The chancellor’s finding of open, notorious, and visible possession by the Todds, Denley, and Newton was supported by substantial evidence and was not clearly erroneous.

(If) Continuous and uninterrupted for a period of ten years

¶ 48. The chancellor found that the parties’ use of their respective portions of the disputed property had been continuous and uninterrupted for a period of ten years. The Todds testified that they had occupied the Sturdivanb-Todd disputed property for twenty-three years. Denley testified that she had purchased her property in 1999, from which time she possessed the Sturdivant-Denley disputed property. Prior to Denley’s purchase of her property, the Brooks family possessed the Sturdivant-Denley disputed property, and William Brooks testified that his family had possessed and used the disputed property from 1970 or 1971 until the 1999 sale to Denley. Newton testified that he had possessed the Sturdivanb-Newton disputed property since 1983. There was substantial evidence that each party’s possession of his or her respective portions of the disputed property was continuous and uninterrupted for a period exceeding ten years.

(5) Exclusive

¶ 49. The chancellor found that the parties’ use of their respective portions of the disputed property was exclusive. Exclusive possession evinces “an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising dominion of a sole owner.” Rawls v. Parker, 602 So.2d 1164, 1169 (Miss.1992). The evidence substantially showed that the Todds, Denley, and Newton held their respective portions of the disputed property believing said portions to be included within the calls of their deeds and that each exercised the dominion of a sole owner.

(6) Peaceful

¶ 50. Evidence was presented by the Todds, Denley, and Newton that their possession of their respective portions of the disputed property was peaceful. Indeed, there was no evidence that anyone had ever contested or disputed the three plaintiffs’ possession of the disputed property until the Sturdivant purchase.

XIII. IN THE EVENT THAT THE CHANCELLOR’S RULING IS UPHELD AND DEFENDANTS ARE DENIED CONVENIENT ACCESS TO THE NORTHERN PART OF THEIR PROPERTY, SHOULD DEFENDANTS BE GRANTED A PRESCRIPTIVE EASEMENT ACROSS THE PROPERTY ADVERSELY TAKEN?

¶ 51. Sturdivant argues that, if this Court affirms the chancellor’s finding that the Todds, Denley, and Newton have title to the disputed property by adverse possession, Sturdivant is entitled to an prescriptive easement over the property. The Todds, Denley, and Newton contend that this argument is procedurally barred because Sturdivant never requested an easement in the lower court. Indeed, the chancellor’s opinion did not address this issue.

¶52. It appears that the issue was placed before the chancellor by Sturdi-vant’s proposed findings of fact and conclusions of law, in which Sturdivant argued that an easement was reasonably necessary for the enjoyment of his land. Stur-divant contended that he would suffer disproportionate expense and inconvenience if he lost the disputed property because then he would have to build a road twice as long through rolling hills in order to access the cabin site. Sturdivant testified that building the alternate road would be twice as expensive as a road across the disputed property.

¶ 53. While Sturdivant requests an easement by prescription, his arguments pertain to an easement by necessity. An easement by necessity is an easement that arises by implication whenever part of a commonly owned tract of land is severed such that one portion of the property has been rendered inaccessible except by passing over the other portion, or by trespassing on the lands of another. Leaf River Forest Prods., Inc. v. Rowell, 819 So.2d 1281, 1284(¶ 9) (Miss.Ct.App.2002). “The burden of proof is on the claimant seeking an easement by necessity; the party must establish that he is implicitly entitled to the right of way across another’s land.” Id. at (¶ 11).

¶ 54. The essence of Sturdi-vant’s argument is not that he lacks any access to his land, but that the access he has is less convenient than that over the adversely possessed land. Our cases establish that an easement by necessity may be created by proving only reasonable necessity rather than absolute physical necessity. Fourth Davis Island Land Company v. Parker, 469 So.2d 516, 520 (Miss.1985). An easement by necessity will be granted when the land is not necessarily landlocked but would be “highly convenient or essential to the full enjoyment of the land.” Id. Our concern is limited to whether the alternative route would involve disproportionate expense and inconvenience. Id. However, “such a situation would arise when the expense of making the means of access available would exceed the entire value of the property to which access was sought.” Mississippi Power Co. v. Fairchild, 791 So.2d 262, 266(¶ 11) (Miss.Ct.App.2001) (quoting Marshall v. Martin, 107 Conn. 32, 139 A. 348, 350 (1927)). An easement by necessity will not be awarded when the only evidence before the court is that the alternative route would be longer and more inconvenient. Swan v. Hill, 855 So.2d 459, 464(¶ 22) (Miss.Ct.App.2003). While Sturdivant submitted a map showing the longer alternative route, Sturdivant submitted no evidence as to the allegedly higher costs of the alternative route such as estimates, bids, or other documentation. The chancellor’s implicit rejection of Sturdivant’s claim to an easement by necessity was supported by substantial evidence and was not clearly erroneous.

¶ 55. THE JUDGMENT OF THE CHANCERY COURT OF TALLAHAT-CHIE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., NOT PARTICIPATING.

      . Brown was deceased at the time of the hearing.

      . There was no evidence that John B. Denley was related to Chessie Denley.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Charlie TAYLOR, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-02134-COA.
    Court of Appeals of Mississippi.
    Feb. 13, 2007.
    Rehearing Denied May 22, 2007.
    Charlie Taylor, Appellant, pro se.
    Office of the Attorney General by W. Daniel Hinchcliff, Attorney for Appellee.

      Before KING, C.J., CHANDLER, BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court.

¶ 1. Charlie Taylor, appearing pro se, appeals the judgment of the Circuit Court of Oktibbeha County dismissing his self-styled motion for records and transcripts, which was considered a post-conviction relief petition by the court. We affirm the circuit court’s decision.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Taylor was indicted in 1998 for charges of possession of a controlled substance with intent to distribute. Pleading not guilty to the charges, Taylor had several court-appointed attorneys before deciding at trial he could best represent himself. The trial proceeded. In October of 1998, Taylor was convicted of one count of possession of marijuana with intent to distribute and one count of possession of cocaine with intent to distribute. He was sentenced as a habitual offender to serve in the custody of the Mississippi Department of Corrections a term of forty years for count one and of sixty years for count two, to run concurrently.

¶3. On March 26, 1999, Taylor filed a motion for post-conviction relief with the Circuit Court of Oktibbeha County. The circuit court treated this motion as a “motion for an out-of-time appeal” which was granted on May 5,1999. Taylor’s notice of appeal was filed July 27, 1999, by his appellate counsel. On May 4, 2000, the Ok-tibbeha County Circuit Court issued an order dismissing Taylor’s post-conviction matter in Cause No. 99-041-CV because of lack of jurisdiction under Mississippi Code Annotated section 99-39-7 (Supp.2006). Taylor’s direct criminal appeal was affirmed by this Court on March 20, 2001. See Taylor v. State, 812 So.2d 1056 (Miss.Ct.App.2001). Apparently, some time around the end of 2003 or the beginning of 2004, Taylor filed another motion for post-conviction relief, because an order from the Mississippi Supreme Court, filed March 25, 2004, ordered Taylor to supplement this motion with a supporting brief and other documents to support his claims. On September 21, 2004, this Court dismissed Taylor’s motion for post-conviction relief because Taylor never filed the supplemental brief as requested. Taylor alleges that he could not file his supplemental brief because his four boxes of legal materials were illegally confiscated and destroyed by prison officials.

¶ 4. On May 27, 2005, Taylor filed the instant motion for records and transcripts in the Circuit Court of Oktibbeha County. On October 26, 2005, the circuit court dismissed Taylor’s motion for lack of jurisdiction under Mississippi Code Annotated section 99-39-7 (Supp.2006), because Taylor’s “criminal case in connection with this matter ... was appealed to the Mississippi Supreme Court and affirmed and [his] pri- or post-conviction motions in this civil cause were appealed to the Mississippi Supreme Court and dismissed.” Taylor now appeals the circuit court’s dismissal of his motion.

STANDARD OF REVIEW

¶ 5. When we review a trial court’s decision to deny a petition for post-conviction relief, this Court will not alter findings by the trial court unless they are found to be clearly erroneous. Smith v. State, 822 So.2d 298, 299(¶ 3) (Miss.Ct.App.2001) (quoting Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)). For questions of law, our standard of review is de novo. Id.

DISCUSSION

¶ 6. Taylor appeals the dismissal of his motion for records and transcripts, which the circuit court treated as a motion for post-conviction relief. No matter how convoluted the proceedings to date appear to be, this Court’s only concern is this particular motion and its dismissal by the circuit court.

¶ 7. The circuit court dismissed this motion for post-conviction relief on two related grounds: first, as a successive motion; and second, Taylor lacked permission from the Mississippi Supreme Court to file a motion for post-conviction relief, since Taylor’s direct criminal appeal had been previously adjudicated. See Miss.Code Ann. § 99-39-23(6) (Supp.2006); Miss. Code Ann. § 99-39-7 (Supp.2006).

¶ 8. The circuit court’s order of October 21, 2005, acknowledges “prior post-conviction motions” which have been appealed and dismissed by the Mississippi Supreme Court. “The dismissal or denial of [a motion for post-conviction relief] ... is a final judgment and shall be a bar to a second or successive application_” Miss.Code Ann. § 99-39-27(9) (Supp.2006). We acknowledge Taylor’s first motion for post-conviction relief, filed March 26, 1999, was considered an out-of-time appeal. However, a subsequent motion for post-conviction relief was dismissed by this Court on September 21, 2004. Since the circuit court treated this motion for records and transcripts as a motion for post-conviction relief, it was properly dismissed as a successive motion.

¶ 9. The circuit court’s ultimate grounds for dismissal was lack of jurisdiction to consider this motion. We agree. Since Taylor’s conviction has already been affirmed on appeal, Taylor was obligated to file his motion for post-conviction relief to a quorum of judges on the Mississippi Supreme Court, seeking an order allowing him to file such a motion before the trial court. Miss.Code Ann. § 99-39-7 (Supp. 2006). He failed to do so with this motion. Thus, the trial court lacked jurisdiction to rule on this motion, and it was appropriately dismissed by that court.

¶ 10. Alternatively, if we were to consider this motion as a motion for records and transcripts, no appellate jurisdiction exists over a transcript request if it is not raised as part of the direct appeal or as part of a motion for post-conviction relief. Fleming v. State, 553 So.2d 505, 506 (Miss.1989). “[N]othing in the Uniform Post-Conviction Collateral Relief Act or elsewhere gives a prisoner the right to institute an independent, original action for a free transcript or other documents, and then if dissatisfied with the trial court’s ruling, to directly appeal that ruling to this court as a separate and independent action.” Id. Apparently, Taylor is currently trying to obtain records and transcripts for federal habeas corpus purposes. Taylor did not request free records and transcripts in his direct appeal from conviction. Further, as discussed above, if considered a motion for post-conviction relief, this motion lacks proper jurisdiction and is barred as a successive motion. Therefore, we affirm the trial court’s dismissal of this motion if considered either as a motion for records and transcripts or as a motion for post-conviction relief.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

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

      . Taylor appeared pro se for all of his subsequent post-conviction motions.

      . Mississippi Code Annotated section 99-39-7 (Supp.2006) reads in pertinent part:
      The motion under this article shall be filed as an original civil action in the trial court, except in cases in which the prisoner's conviction and sentence have been appealed to the supreme court of Mississippi and there affirmed or the appeal dismissed. Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the justices of the supreme court of Mississippi ... and an order granted allowing the filing of such motion in the trial court.

      .However, this order is not a part of this appeal’s record and is not at issue except to analyze the history of the motion at bar.


text:
    Randall M. SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00681-COA.
    Court of Appeals of Mississippi.
    Feb. 13, 2007.
    Rehearing Denied May 29, 2007.

      Dan Anderson McIntosh, Collins, Travis T. Vance, attorneys for appellant.
    Office of the Attorney General by W. Daniel Hinehcliff, attorney for appellee.
    Before KING, C.J., CHANDLER, BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court.

¶ 1. Randall M. Smith was convicted on March 2, 2005, of aggravated driving under the influence of intoxicating liquor for his involvement in a vehicular accident which seriously injured the driver and passenger of an oncoming car. He was thereafter sentenced to a term of ten years in the custody of the Mississippi Department of Corrections, with three years to serve and five years of post release supervision. The trial court further ordered Smith to pay a fíne of $1,000. Aggrieved by the jury’s judgment against him, Smith perfected this appeal, asserting error as follows: (1) the jury’s verdict was against the overwhelming weight of the evidence presented at trial; (2) there was insufficient proof of his intoxication at the time of the accident; (3) the court erred by replacing a juror prior to the jury’s deliberation; and, (4) it was error to refuse defendant’s jury instruction DI-7. Finding no merit in Smith’s assignments of error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 2, 2003, Randall Smith was traveling home in the south-bound lane of Campbell Swamp Road when his pickup truck collided with a north-bound car driven by Crystal Wilkerson. The head-on collision occurred in the northbound lane — Wilkerson’s lawful lane of travel. Wilkerson’s four year old son, Chandler, was a passenger in the back seat of her car. As a result of the accident, both Wilkerson and Chandler suffered serious injuries. Wilkerson sustained serious injuries to both knees and suffered a complete break to her femur, requiring a surgically implanted rod in her leg to straighten and hold the two halves of the severed bone together. Chandler sustained a severe laceration to his head and a broken pelvis. Chandler was confined to a wheel chair for approximately one month due to his injuries.

¶ 3. Smith was indicted by a grand jury in the Warren County Circuit Court on May 3, 2004, under Mississippi Code Annotated section 63-11-30(5) (Supp.2003), aggravated driving under the influence of intoxicating liquor. The elements of this statutory provision are: (1) intoxication at the time of the accident, (2) negligence by the defendant, which (3) causes death or serious bodily injury to another. Id. After a three-day trial, the jury found Smith guilty of the charge as indicted.

¶4. The accident at issue in this case occurred as Smith was traveling south and Wilkerson was traveling north on Campbell Swamp Road, a narrow, country roadway located in rural Warren County. Wilkerson left work for the day at approximately 4:30 p.m., went to pick Chandler up from his grandmother’s house, and was on her way to pick up her other two children from daycare when the accident occurred. Wilkerson had just descended a hill and was approaching a sharp curve that curved back to the west. As she neared the curve, Wilkerson encountered a beige Chevrolet approaching in her lane of travel and “fishtailing” as it emerged from the curve. Wilkerson testified that she did not have time to make any attempt at avoiding the impact. After the collision, both vehicles came to rest a few feet from the site of the impact. The location of the impact suggests that Smith had barely emerged from the curve and Wilkerson was just before entering the curve when the two vehicles collided.

¶ 5. There is no dispute that the accident took place in Wilkerson’s lawful lane of travel. Smith, however, insists that it was Wilkerson who was initially in his lawful lane of travel. According to Smith’s testimony, he entered Wilkerson’s lane of travel in an effort to avoid colliding with her car. Smith contends that Wilkerson then crossed back over into her proper lane, and that he then attempted to move his vehicle to the north-bound shoulder of the road, but was unable to do so before the vehicles collided. Smith further testified that he only lacked a few inches from being completely on the road’s shoulder. If he had made that final few inches, Smith contends that he would have avoided the accident altogether.

¶ 6. Smith produced three witnesses at trial to corroborate his version of the accident. Two of the witnesses, John Ransom and Dale Wheeler, testified that they were traveling together in the same direction as Smith, and were several car lengths behind when the events leading up to the accident unfolded. Ransom, a passenger in a Ford Bronco driven by Wheeler, testified that he could not see Wilkerson’s car prior to the collision. However, Ransom testified further that immediately preceding the impact, Smith veered sharply to the left, consistent with an attempt to avoid an oncoming vehicle. Wheeler’s testimony was essentially identical to that of Ransom with respect to how the accident occurred. In addition, both men testified that Smith was traveling at a reasonable rate of speed.

¶ 7. The third witness was Donna Rag-land, who testified that she was jogging in the area when she witnessed the accident. Ragland was jogging in the same direction as Wilkerson was traveling, and witnessed the collision from the south — the opposite vantage point than that of Ransom and Wheeler. According to Ragland, Wilkerson’s car was in Smith’s south-bound lane of travel and was traveling at a high rate of speed as Wilkerson approached the curve, causing Smith to veer sharply to his left, entering, the north-bound lane. Wilkerson then moved back to the north-bound lane and collided with Smith’s truck. When questioned about how fast she thought Smith was traveling just prior to the accident, Ragland stated that “he seemed to be driving normal speed.” After witnessing the accident and speaking briefly with Ransom and Wheeler as they passed by in the Ford Bronco, Ragland testified that she turned and headed back in the opposite direction.

¶ 8. Despite the apparent seriousness of the accident, Ransom and Wheeler testified that they offered no assistance to either Smith or Wilkerson. Rather, both men testified that after a brief exchange with Smith, an exchange in which Smith assured the two men that he was alright and was going to call 911 on his cell phone, they determined that there was nothing they could do to help. Both men testified that they had been drinking that afternoon, and Wheeler was concerned that if he remained at the accident scene, he might get a DUI. When questioned about why she did not go down to the accident scene, Ragland cited the fact that she is prone to faint at the sight of blood, was wearing running clothes consisting of “very small shorts and a running bra,” and was assured by Ransom and Wheeler that 911 had been called. Ragland added that, from her vantage point, she “couldn’t see anything that looked that detrimental.” Admittedly, neither Ransom, Wheeler, nor Ragland made any attempts to contact emergency personnel after leaving the accident scene.

¶ 9. In addition to conflicting testimony describing how the accident occurred, the jury also heard conflicting evidence regarding Smith’s intoxication at the time of the accident. According to Smith, he had been visiting at a friend’s house for most of the afternoon prior to the accident. On his way home from this friend’s house, Smith stopped at a country store and purchased some Gatorade and a bag of ice. Smith testified that he drank some of the Gatorade out of the bottle, poured some more in a cup and mixed that with vodka, and then mixed some more vodka with the Gatorade that remained in the bottle. When asked how much vodka he had drunk prior to the accident, Smith testified, “Not much.” Smith’s blood alcohol content (“BAC”) immediately after the accident was not ascertained, as the investigating deputies did not administer any field sobriety tests nor did they administer an Intoxilyzer test on Smith. Instead, Smith later consented to having a blood sample drawn to be tested for intoxicating substances.

¶ 10. The test results revealed that Smith’s BAC was .20 percent, more than two times the legal limit of .08 percent. See Miss.Code Ann. § 63 — 11—30(l)(c) (Supp.2003). The record does not reflect the exact time that Smith’s blood was drawn and tested; however, Smith signed a consent form approximately one hour and forty-five minutes after the accident took place, so at least this much time had passed. The latest testimonial estimate is that the blood was drawn some three and one-half to four and one-half hours after the accident. The accident occurred at approximately 5:00 p.m. According to the record, the earliest that Smith’s blood could have been drawn was 6:45 p.m., and the latest was 9:30 p.m.

¶ 11. Smith agreed to a stipulation of fact with respect to the blood test results, in effect admitting that his BAC was .20 percent at the time his blood was drawn and tested. However, to support his contention that he was not intoxicated at the time of the accident, and to explain how his BAC registered .20 percent several hours after the accident, Smith asserted at trial that he did not drink very much of his vodka-Gatorade mixture prior to the accident but that he continued drinking from his Gatorade bottle after the accident. In fact, Smith even asked Officer Heggins, one of the deputies investigating the accident, if he could have a drink from his Gatorade bottle, and Heggins consented. Heggins admitted that he allowed Smith to take a single drink from his bottle of Gatorade at the accident scene and that the contents of the bottle were never tested to determine whether it contained any alcohol. However, Heggins testified that other than this single drink from his Gatorade bottle, Smith did not consume anything else after the officer arrived at the accident scene approximately six minutes after receiving the dispatch.

¶ 12. In addition to the blood test which revealed Smith’s BAC to be .20 percent several hours after the accident, the prosecution offered the testimony of Officer Heggins, Wilkerson, and assisting motorist John Tompkins to support the contention that Smith was intoxicated at the time of the accident. Officer Heggins testified that Smith smelled of beer when he encountered Smith at the accident scene. Wilkerson testified that Smith smelled strongly of alcohol when Smith first approached her vehicle immediately after the accident. Additionally, Wilkerson testified that when Smith exited his truck, he fell to the ground on his back, waiving his arms and legs about in a similar fashion to what Wilkerson described as “doing like snow angels.” Tompkins, a motorist who came upon the accident scene shortly after the collision, testified that he, too, witnessed Smith fall to his back as he attempted to exit the wrecked truck. Tompkins also stated that Smith smelled very strongly of alcohol, and that, in his opinion, Smith was very intoxicated.

¶ 13. At the conclusion of all testimony, Smith’s renewed motion for directed verdict was denied. The trial court also denied Smith’s “Motion for Judgment Notwithstanding the Verdict (JNOV) or, in the Alternative, for a New Trial” submitted after the jury’s verdict finding Smith guilty of aggravated DUI. The trial court subsequently sentenced Smith to a term of ten years in the custody of the Mississippi Department of Corrections, with three years to serve, five years’ post release supervision, and a $1,000 fine. Smith timely perfected this appeal, asserting that the trial court erred by refusing his motion for JNOV, or, in the alternative, for a new trial. In this regard, Smith asserts that with respect to the negligence requirement of section 63-11-30(5), the jury’s verdict was against the overwhelming weight of the evidence. Smith also insists that there was insufficient proof that he was intoxicated when the accident occurred. Next, Smith argues that the trial court erred when it substituted one of the jurors prior to the beginning of deliberations. Finally, Smith argues that the trial court committed reversible error by refusing one of defendant’s jury instructions. Finding no error by the trial court in the proceedings below, we affirm.

DISCUSSION OF THE ISSUES

¶ 14. In order to prove Smith guilty of aggravated DUI under Mississippi Code Annotated section 63-11-30(5), the State was required to prove, beyond a reasonable doubt, that Smith was intoxicated at the time of the accident, and that Smith negligently caused death or serious injury to another. Miss.Code Ann. § 63 — 11— 30(5). Smith asserts that the jury’s verdict finding him negligent and intoxicated at the time of the accident was against the overwhelming weight of the evidence. Smith does not challenge the jury’s finding with respect to the death or serious injury requirement of section 63-11-30(5). Rather, Smith asserts that the trial court committed reversible error by replacing one of the jurors just before the jury began its deliberations. Smith’s final assertion of error is that the trial court erred by refusing defendant’s jury instruction DI-7. We turn now to a discussion of these assignments of error.

I. WHETHER THE JURY’S VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 15. Smith contends that the jury’s verdict in this case was against the overwhelming weight of the evidence and that the trial court, therefore, erred in denying his motion for a new trial. In particular, Smith insists that the overwhelming weight of the evidence points to his version of how the accident occurred. Accordingly, Smith contends that the weight of the evidence points to Wilkerson — not Smith — as being the negligent cause of the accident in question. We disagree.

¶ 16. On a motion for a new trial, the court sits as a hypothetical thirteenth juror. Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000) (quoting United States v. Sinclair, 438 F.2d 50, 51 n. 1 (5th Cir.1971)). “The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. On review of a trial court’s denial of a motion for new trial, we must view the evidence in a light most favorable to the verdict, and this Court will disturb the decision of the trial court “[o]nly when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Herring v. State, 691 So.2d 948, 957 (Miss.1997).

¶ 17. To support his assertion that the jury’s verdict was against the overwhelming weight of the evidence, Smith points out inconsistencies in the different accounts given by Crystal Wilkerson of how the accident occurred. Wilkerson was questioned at some length during cross-examination regarding inconsistencies in recited accounts of the accident, accounts which she gave on three separate occasions. Smith also points out that he produced three eyewitnesses who all testified consistently with his version of how the accident occurred.

¶ 18. While we note that there were some discrepancies among Wilkerson’s various accounts of the accident, Wilkerson consistently asserted that it was Smith who was initially in the wrong lane of travel as she approached the area where the accident occurred. Furthermore, there were many circumstances surrounding the testimony of Smith’s three eyewitnesses that may have created doubt in the jury’s minds as to the veracity of their testimony. It is not for this Court to second guess the jury’s resolution of the conflicting testimony, as it is well established that “the jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Howery v. State, 809 So.2d 761, 763(¶ 7) (Miss.Ct.App.2002) (quoting Meshell v. State, 506 So.2d 989, 991 (Miss.1987)). Apparently, the jury chose to believe the State’s witness, Wilkerson, in finding Smith guilty of aggravated DUI. The fact that Smith produced corroborating witnesses does not preclude the jury from disregarding the testimony of those witnesses. “The ‘testimony of a single uncorroborated witness is sufficient to sustain a conviction ... even though there may be more than one person testifying to the contrary.’ ” Id. (quoting Williams v. State, 512 So.2d 666, 670 (Miss.1987)).

¶ 19. Wilkerson’s testimony was sufficient to establish that Smith was negligent, and that his negligence proximately caused the accident at issue. There was other evidence presented to the jury that could have weighed in favor of the jury’s decision, such as the fact that the accident occurred in Wilkerson’s lane of travel, and the fact that Smith admitted that he had consumed some alcohol prior to the accident. “As the reviewing court, we cannot and need not determine with exactitude which witness(es) or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution.” Stephens v. State, 911 So.2d 424, 436(¶ 38) (Miss.2005) (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)). Whether Smith negligently caused this accident was a disputed issue properly resolved by the jury. The jury’s resolution was supported by substantial evidence. Accordingly, the jury’s judgment was not against the overwhelming weight of the evidence, and the trial court did not err by refusing to grant a new trial.

II. WHETHER THERE WAS SUFFICIENT PROOF THAT SMITH WAS INTOXICATED AT THE TIME OF THE ACCIDENT

¶ 20. Smith also challenges the jury’s judgment on the ground that “proof of intoxication, above Mississippi’s legal limit, at the time of the accident, was not proven.” Although not couched in terms of sufficiency, or posited in the context of the trial court’s denial of his motions for directed verdict and judgment notwithstanding the verdict (“JNOV”), Smith’s argument on this issue effectively attacks the sufficiency of the evidence presented at trial. Therefore, we will apply the standard of review applicable to denial of a motion for directed verdict and JNOV.

¶ 21. A motion for JNOV and directed verdict are both challenges to the legal sufficiency of the evidence presented at trial, and the standard of review is identical for both. Seeling v. State, 844 So.2d 439, 443(¶ 8) (Miss.2003). Under this standard, we are required to view all evidence in the light most favorable to the State, and the State is entitled to all favorable inferences that may reasonably be drawn from the evidence. We will reverse and render only where “the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a guilty verdict.” Where there is substantial evidence of such a nature that fair-minded and reasonable jurors exercising impartial judgment might have reached different conclusions, this Court is compelled to affirm. Id.

¶22. At trial, Smith stipulated to the fact that his BAC was .20 at the time his blood was drawn and tested. According to the record, Smith qualified this stipulation only insofar as this was not a stipulation to his BAC at the time of the accident. On appeal, Smith insists on a more limited stipulation, arguing that he merely stipulated to the fact that a blood test was conducted which purported to establish his BAC as .20 at some point after the accident. In this regard, Smith contends that he never stipulated to the fact that the test was accurate, proper, or timely. We find Smith’s argument unpersuasive.

¶ 23. Since Smith did not raise this issue before the trial court, he is procedurally barred from raising it now on appeal. See Spicer v. State, 921 So.2d 292, 309(1132) (Miss.2006). Notwithstanding this procedural bar, the record clearly demonstrates that Smith accepted the accuracy of the test results. For example, during argument in support of the renewed “Motion for Directed Verdict,” counsel for Smith stated the following: “Even though there is a stipulation as to what the blood alcohol content was some hours later, that stipulation does not include what it was at the time of the accident, itself, and that is what the Court must go on.” We note that counsel referred to a stipulation of blood alcohol content, not to a stipulation of blood test results which may or may not have been accurate as he now contends on appeal.

¶ 24. Another indication of Smith’s acceptance of the accuracy of the test results is found in the court’s ruling on Smith’s renewed motion for directed verdict. There, the trial judge stated that “the first stipulation was that his blood-alcohol content was .20 at about an hour and fifteen, thirty minutes after, the accident....” Counsel for Smith expressed disagreement only with the court’s time frame, insisting that the exact time Smith’s blood was drawn was unknown. Counsel for Smith did not take issue with the court’s characterization of this stipulation as a stipulation to Smith’s BAC at the time the blood was drawn, and in fact counsel reiterated this point during the colloquy. These excerpts clearly demonstrate that Smith did not refute the accuracy, propriety, or timeliness of the blood test results at trial, and he may not do so for the first time on appeal. Thus, Smith’s stipulation was conclusive as to his BAC at the time of the blood test and is “binding on the parties and the court.” Crawford v. Butler, 924 So.2d 569, 573(¶ 13) (Miss.Ct.App.2005) (citing Benton v. Harkins, 800 So.2d 1186, 1187(¶ 8) (Miss.Ct.App.2001)). This evidence was properly before the jury, and we must view it, along with all other evidence of Smith’s intoxication, in the light most favorable to the State.

¶ 25. Smith contends that the State failed to prove that he was intoxicated at the time of the accident. To support this contention, Smith points to his own testimony at trial that he did not drink very much of his vodka and Gatorade mixture prior to the accident. To explain his .20 BAC several hours after the accident, Smith testified that he continued drinking the vodka and Gatorade mixture after the accident. As fact finder in this case, the jury was free to accept or reject this testimony. Howery, 809 So.2d at 763(¶ 7). Drawing the only reasonable inference that is consistent with the verdict, we must conclude that the jury chose to reject Smith’s explanation.

¶ 26. It is clear that the evidence contained in the record, when viewed in the light most favorable to the State, and reasonable inferences made consistent with-the verdict, is sufficient to support the jury’s verdict. The testimony of Officer Heggins, Wilkerson, and assisting motorist Tompkins, all of whom encountered Smith at the accident scene shortly after the collision occurred, support the conclusion that Smith was intoxicated at the time of the accident. All three of these witnesses testified that Smith smelled very strongly of alcohol. Wilkerson and Tompkins testified to abnormal behavior by Smith consistent with intoxication. Even Smith’s own testimony that he had consumed some alcohol prior to the accident supports this conclusion. Finally, and perhaps most persuasive, given the fact that Smith’s BAC was .20 percent several hours after the accident, we find that it would be reasonable for a jury to infer that Smith’s BAC was .08 percent or more at the time of the accident.

¶ 27. Smith argues that, in the absence of Intoxilyzer results or other evidence of his BAC shortly after the accident, there was insufficient proof of his intoxication at the time of the accident. In Saucier v. City of Poplarville, 858 So.2d 933, 936(¶ 17) (Miss.Ct.App.2003), we upheld a DUI conviction despite the absence of evidence from a successfully administered In-toxilyzer test. There, we found the officer’s testimony regarding the defendant’s failure of field sobriety tests, slurred speech, smell of alcohol, and glazed eyes was sufficient for the circuit judge to conclude that the defendant was intoxicated. Id. As in Saucier, despite the absence of Intoxilyzer results, there was sufficient evidence presented to the jury in this case to conclude that Smith was intoxicated at the time of his collision with Wilkerson. Smith’s argument to the contrary is without merit.

III. WHETHER THE COURT ERRED BY REPLACING A JUROR PRIOR TO THE BEGINNING OF DELIBERATIONS

¶ 28. Smith’s third argument on appeal is that the trial court abused its discretion when, prior to deliberations, the court replaced a regular juror with an alternate. The State contends that Smith’s challenge is procedurally barred, citing the fact that Smith failed to object to the alternate prior to impaneling of the jury. In the alternative, the State asserts that the trial judge did not abuse his discretion. We find that the trial court did not abuse its discretion, and therefore, we will not address the procedural issue raised by the State.

¶ 29. Mississippi Code Annotated section 13-5-67 (Rev.2002) governs the impaneling and substitution of alternate jurors. In pertinent part, this statute provides that “[alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties.” Miss.Code Ann. § 13-5-67. Although trial courts have complete discretion in replacing a regular juror with an alternate, the Mississippi Supreme Court has made it clear that this discretion should not be arbitrarily exercised. McCoy v. State, 820 So.2d 25, 29(¶ 11) (Miss.Ct.App.2002) (citing Myers v. State, 565 So.2d 554, 557 (Miss.1990)). To avoid an abuse of discretion charge, our supreme court has suggested that the trial court record should reflect the exact reasons for a juror’s dismissal. Id. (citing Stevens v. State, 513 So.2d 603, 605 (Miss.1987)). However, even where no valid reasons are evident from the record, an aggrieved party must demonstrate actual prejudice by the trial court’s decision before we will reverse on this ground. Id. at 29-30(¶ 11) (citing Vaughn v. State, 712 So.2d 721, 724(¶ 15) (Miss.1998)).

¶ 30. According to the record, the trial court in the instant case expressed concern over several attributes and actions of the dismissed juror. The juror had been late to court on two occasions. In addition, the juror had received mental treatment in the past, and the court expressed its concern that the juror may have been mentally retarded. The juror had been seen sleeping in the jury box. He had also been seen taking notes completely out of sync with the presentation of testimony. Despite the court’s concern over the preceding allegations, it was not until the court recalled that this particular juror had been a victim of a crime — and had therefore been involved in a criminal case — that the court finally decided to dismiss this juror. These concerns were discussed in the presence of both parties. Over the objection of Smith’s counsel, the court decided to replace the regular juror with an alternate. Jury deliberations had not yet begun when the court made this substitution.

¶ 31. “Questions about juror competency are considered against the backdrop of the general principle that a judge is empowered with broad discretion to determine whether a prospective juror can be impartial.” Green v. State, 644 So.2d 860, 863 (Miss.1994) (citing Myers, 565 So.2d at 558). In light of the reasons articulated by the trial judge for replacing the juror in this case, we cannot conclude that the trial judge abused his “broad discretion” in replacing the regular juror with the alternate. Accordingly, this assignment of error is without merit.

IV. WHETHER THE COURT ERRED BY REFUSING DEFENDANT’S JURY INSTRUCTION DI-7

¶ 32. Smith’s final assertion of error concerns the trial court’s refusal to grant defendant’s instruction DI-7. The proposed instruction reads as follows:

The Court instructs the jury that before you can find the Defendant, Randall M. Smith “Guilty” of the crime charged against him the State of Mississippi must prove, beyond a reasonable doubt, that his negligence, if any, was the sole proximate cause of the accident giving rise to the charges against him.
If you find from the evidence, or lack of evidence, in this cause, that the driver of the other vehicle, Crystal E. Wilkerson, was also negligent, and that her negligence, if any you so find, contributed to the accident, then you must, under your oaths, find the Defendant “Not Guilty.”

We find that the trial court properly refused the defendant’s proposed instruction DI-7.

¶ 33. Defendant’s instruction DI-7 was properly denied because it incorrectly states the negligence standard of the applicable statute, placing a burden upon the State not required by Mississippi Code Annotated section 63-11-30(5). This provision requires proof that the defendant was intoxicated and “in a negligent manner” caused the death or serious injury of another. Miss.Code Ann. § 63-11-30(5). As previously noted by this Court, the Mississippi Supreme Court has stated that simple negligence is sufficient to satisfy this requirement. Ware v. State, 790 So.2d 201, 216(¶ 53) (Miss.Ct.App.2001) (citing Holloman v. State, 656 So.2d 1134, 1140 (Miss.1995)).

¶ 34. Contrary to Smith’s contention, the State does not have to prove that there were no other negligent causes, merely that the negligence of the defendant was a cause. As this Court stated in Frambes v. State, 751 So.2d 489, 492(¶ 17) (Miss.Ct. App.1999), “[fjelony DUI requires a negligent act, from which death or injury results.” Id. (emphasis added) (citing Wilkerson v. State, 731 So.2d 1173 (Miss.1999)). The effect of the instruction offered by Smith, and the argument advanced by Smith now on appeal, is that if Wilkerson had negligently contributed in any way to the accident, then Smith should have been found “not guilty.” Smith points to no authority which would exonerate an intoxicated driver who negligently causes death or injury to another, simply because the victim, or anyone else, was also negligent. Wilkerson’s negligence would be exculpatory as to Smith only if her negligence was the sole proximate cause of the accident. Even so, it would not be Wilkerson’s negligence which would be exculpatory but the obvious conclusion that if Wilkerson’s negligence was the sole proximate cause, then Smith’s negligence, if any, could not have played a role in the accident.

¶ 35. Smith mistakenly relies on Fram-bes to support his contention that any negligence on the part of Wilkerson would be grounds for acquittal. There is nothing in our holding in Frambes which could be read to support Smith’s argument. Similarly misplaced is Smith’s reliance on Dickerson v. State, 441 So.2d 536 (Miss.1983). Smith seizes upon language contained in Dickerson which acknowledges that one may be “guilty of negligence such as might impose upon him some liability in a civil action for damages” and yet not be guilty of manslaughter. Id. at 540. What Smith apparently overlooks is that manslaughter requires culpable negligence, “which is the moral equivalent of willfulness,” whereas aggravated DUI requires only simple negligence. Compare id. (manslaughter), with Holloman, 656 So.2d at 1140(DUI)- Neither of these cases supports Smith’s argument. Accordingly, the trial court did not err by refusing Smith’s proposed jury instruction DI-7.

CONCLUSION

¶ 36. After a thorough review of the record, we find that the jury was presented with substantial evidence to support its verdict in this case. Although two of the elements of the aggravated DUI charge were disputed, these disputes were appropriately resolved by a properly instructed jury. The judgment of the trial court is, therefore, affirmed in all respects.

¶ 37. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THREE YEARS TO SERVE, WITH FIVE YEARS OF POST RELEASE SUPERVISION AND A FINE OF $1,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Although the sentencing order does not mention that any portion of the sentence was to be suspended, the transcript of Smith’s sentencing hearing reveals that the circuit court explicitly stated that seven years of the ten-year sentence were suspended. We mention this omission so that the circuit court may exercise its inherent power to correct the sentencing order to make the order correspond with the judgment actually rendered. See Kitchens v. State, 253 Miss. 734, 737, 179 So.2d 13, 14 (1965); Harvey v. State, 919 So.2d 282, 285(¶ 9) (Miss.Ct.App.2005).

      . Smith points to the accident report completed a few days after the accident as one of Wilkerson’s inconsistent accounts. That report states that Wilkerson changed lanes in an attempt to avoid Smith, but that Smith also changed lanes. Wilkerson then changed back to her proper lane, again in an attempt to avoid a collision. Smith also changed lanes again, resulting in the head-on collision. At trial, Wilkerson did not deny making that statement to the investigating deputy, but instead testified that she did not remember saying that she switched lanes, as her testimony at trial was that she did not have time to switch lanes before the collision. To account for her lack of memory surrounding the accident report, Wilkerson testified that the deputy who completed the report questioned her a few days after the accident. At this time, Wilkerson was in the hospital recovering from her surgery and was taking strong pain medications. Wilkerson made two more statements prior to trial. Both accounts were consistent with her trial testimony in that on both occasions, Wilkerson asserted that she did not have time to switch lanes before the collision.

      . Both Wheeler and Ransom admitted that they had known Smith for many years prior to the accident. Donna Ragland had regularly performed work for Smith's attorneys. In addition to these possible sources of bias, the jury may have questioned the plausibility of three people witnessing an accident of this magnitude, and not even attempting to contact emergency personnel. There were also factual inconsistencies between the testimony of Smith, Ransom, and Wheeler.