author: GRIFFIS, J.,

text:
    Tommy VAN CLEAVE and Marie F. White, Appellants v. ESTATE OF Grace FAIRCHILD, Deceased, Perry M. Fairchild, Executor, Appellee.
    No. 2005-CA-01958-COA.
    Court of Appeals of Mississippi.
    Feb. 27, 2007.

      William B. Jacob, Joseph A. Kieronski, Jr., Daniel P. Self, Jr., Meridian, attorneys for appellants.
    Robert J. Bresnahan, Meridian, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. The estate of Grace Fairchild, represented by executor Perry M. Fairchild, contested two warranty deeds to Tommy Van Cleave and Marie F. White. Van Cleave and Marie counterclaimed for a constructive trust on a $60,000 transfer to Perry. The chancellor held the deed to Van Cleave was void because of Marie’s undue influence. The chancellor held the transfers to Marie and Perry were valid. Van Cleave and Marie appeal and argue (1) the chancellor erred in using Marie’s conduct to invalidate Van Cleave’s deed, (2) Marie did not exert undue influence on Grace, and (3) there was a confidential relationship between Perry and Grace. We find no error and affirm.

FACTS

¶ 2. James and Grace Fairchild were married with three children: Marie, Ed, and Perry. James and Grace owned two pieces of real property, their 2.7 acre homestead at 9331 Whippoorwill Road, Meridian, and a sixty acre tract in Lost Gap, Lauderdale County. The Lost Gap property was Fairchild family land, which James had inherited. It was once part of a 240 acre tract, which was divided into four sixty acre tracts.

¶ 3. James died testate on September 19, 1993. Although his will was never probated, the children recognized that his will left everything to Grace. In January of 1993, James gave $60,000 to Perry. This money was part of an inheritance James had received that day of over $72,000, which came from the sale of another sixty acre tract of Lost Gap land. James’s sister, Dorothy McFarland and, Marie’s daughter, Karen Royal testified that this money was given to Perry in trust to take care of Grace. Grace was a long time sufferer of lung ailments, eventually developing chronic obstructive pulmonary disease (“COPD”). Perry testified that the money was a gift.

¶4. In 1996, Grace executed her will. She named Marie as the executrix and Perry as the alternate executor. In the will, Grace left the homestead, along with all furniture, appliances, household goods, and residual personal property to Marie. She left the Lost Gap property and her car to Perry. She bequeathed her porcelain bird collection to Royal. As for Ed, she wrote, “I am not overlooking him in this will as I am providing for him by other means.” Grace made gifts of money to Ed during her lifetime.

¶ 5. Perry lived next door to Grace and helped care for her until December of 1996, when he moved out of state. Marie moved into a trailer on the homestead property in 1988. Eventually Van Cleave, Marie’s live-in boyfriend of sixteen years, moved into the trailer. Marie took care of Grace after Perry moved away. As a registered nurse, Marie had to work away from home three to four nights a week.

¶ 6. In April, 2001, Grace sold the Lost Gap property to Van Cleave for $5,000. At the time, the land was worth $70,400. Marie set up the entire deal within a twenty-four hour period and brought her mother to Van Cleave’s attorney rather than to Grace’s long time estate attorney. Marie was present the entire time, and no one mentioned the purchase price to Van Cleave’s attorney.

¶ 7. In July, 2001, Grace transferred the homestead property to Marie, with a reservation of a life estate for herself. The purpose was to avoid estate taxes. This time, Grace’s estate attorney handled the transfer. Although Marie drove her mother to Grace’s attorney’s office, Marie was not present in the room while Grace consulted with him.

¶ 8. Besides Marie and Grace, no one in the Fairchild family knew of the two property transfers. In fact, as late as September 2003, Grace told Perry that the Lost Gap property was still coming to him through her will. It was not until after Grace’s death on November 20, 2003, that Perry and the other family members found out about the transfers. When asked, both Marie and Van Cleave refused to reveal the purchase price of the Lost Gap property. Marie refused to give the Lost Gap property to Perry, but offered to sell it to him for $1,000 an acre.

¶ 9. On December 5, 2003, Perry brought this action to void the two land transfers as product of Marie’s, Van Cleave’s, or both’s undue influence. Later, Perry was allowed to substitute Grace’s estate as the party plaintiff. Marie and Van Cleave counterclaimed to place a constructive trust on the 1993 $60,000 transfer to Perry.

¶ 10. Trial was held July 25-27, 2005. The chancellor found that at the time of the 2001 land transfers, Marie was in a confidential relationship with Grace. Marie was Grace’s primary caretaker. Grace was often depressed and physically weak. He also found that Marie was a beneficiary of the Lost Gap transfer. With regard to the Lost Gap property, he held that neither Van Cleave nor Marie were able to overcome the presumption of undue influence. The purchase price was less than one-tenth the value of the land, Marie and Van Cleave set up the entire arrangement, both kept the transfer a secret for over two years, and Grace later told Perry that he was still inheriting the Lost Gap property through her will. As for the homestead property, Grace was represented by counsel, and Grace and her attorney handled the transfer. Also the effect of the transfer closely resembled the effect of Grace’s 1996 will. Finally, the chancellor found that at the time of the 1993 cash transfer, Perry was not in a confidential relationship with Grace, because her health and mental spirits were much better then, and she was surrounded by other family as well (James and Marie). Therefore, the chancellor refused to impose the constructive trust on Perry’s transfer.

¶ 11. Van Cleave and Marie appeal and argue Marie did not exert any undue influence, and even if she did, it is irrelevant to the Van Cleave/Lost Gap deed. Finally, they argue that Perry was in a confidential relationship with Grace, and a constructive trust should be placed upon the $60,000 he received from James.

STANDARD OF REVIEW

¶ 12. Undue influence is a question of fact. Watkins v. Watkins, 142 Miss. 210, 229, 106 So. 753, 755 (1926). A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 625(¶8) (Miss.2002). This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26(¶ 8). “The determination of the existence of a constructive trust is a matter of law and thus, subject to de novo review.” Allred v. Fairchild, 785 So.2d 1064, 1068(¶ 7) (Miss.2001).

ANALYSIS

I. Did the chancellor err in using Marie’s conduct to evaluate Van Cleave’s deed?

¶ 13. Van Cleave argues that the chancellor cannot bootstrap Marie’s undue influence onto Van Cleave’s deed. Perry counters that Van Cleave’s deed was actually for Marie’s benefit, and that Van Cleave was merely a strawman.

¶ 14. A party claiming an inter vivos transfer is void because of undue influence must show by clear and convincing evidence that a confidential relationship existed between the grantor and grantee/beneficiary. Estate of Hawkins, 737 So.2d 432, 434(¶ 9) (Miss.Ct.App.1999). When such a relationship exists, the presumption of undue influence arises automatically. Lancaster v. Boyd, 803 So.2d 1285, 1289(¶ 9) (Miss.Ct.App.2002); Hawkins, 737 So .2d at 434(¶ 9).

¶ 15. Although Van Cleave’s name appears on the deed, there was substantial credible evidence that Marie was the actual beneficiary, if not a co-beneficiary. This is the implied finding of the chancellor. Indeed, the chancellor found that Van Cleave and Marie consider themselves married and “they ‘share most everything.’ ” For example, in a taped conversation between Marie and Perry about the Lost Gap property, Marie states, “I bought that property.” Later in the same conversation, she affirms, “We [she and Van Cleave] bought that property.” Marie and Van Cleave testified they consider themselves married, and they consider that they jointly own each other’s property. To Van Cleave, this includes the Lost Gap property. Van Cleave testified that it was Marie who suggested to both he and Grace that he buy the Lost Gap property. He also testified that Marie was the one who negotiated the deal. After Perry found out about the transfer, it was Marie who offered to sell him the property for $1,000 an acre. Therefore, contrary to Van Cleave’s assertion, the issue of Marie’s undue influence was relevant to his deed. See Estate of McRae, 522 So.2d 731, 740 (Miss.1988) (holding deeds to dominant party’s children void where dominant party was the actual beneficiary). This issue has no merit.

II. Did Marie exert undue influence to obtain the Van Cleave deed?

¶ 16. Having established that her conduct was relevant, we examine Van Cleave’s alternative argument that Marie did not exert any undue influence. Perry argues that the chancellor had substantial evidence to find that she did.

¶ 17. A confidential relationship is defined by the supreme court:

Whenever there is a relation between two people in which one person is in a position to exercise a dominant influence upon the other because of the latter’s dependency upon the former, arising either from weakness of the mind or body, or through trust, the law does not hesitate to characterize such relationship as fiduciary in character.

Madden v. Rhodes, 626 So.2d 608, 617 (Miss.1993). The relationship “must reflect ‘a dominant, overmastering influence [which] controls over a dependent person or trust justifiably reposed.’ ” Taylor v. Welch, 609 So.2d 1225, 1231-32 (Miss.1992) (quoting Mullins v. Ratcliff, 515 So.2d 1183, 1191-92 (Miss.1987)). “A deed from a parent to a child alone of itself raises no presumption of undue influence since, in the absence of evidence to the contrary, the parent is presumably the dominant party.” Thomas v. Jolly, 251 Miss. 448, 454-55, 170 So.2d 16, 19 (1964). Factors to be considered in determining the existence of a confidential relationship are: (1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has her medical care provided by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another. In re Estate of Sandlin, 790 So.2d 850, 853(¶ 7) (Miss.Ct.App.2001).

¶ 18. There was evidence that Grace needed to be taken care of by others. She had psoriasis on her fingers which made it difficult for her to open her medicine bottles. Marie had to do this for her. Grace had COPD, which made her winded easily and less able to take care of her housekeeping. On some occasions, it made it difficult for her to go outside, which would require someone to run errands for her. All agreed that Marie had a close mother/daughter/friend relationship with Grace. Grace’s transportation to a large extent was provided by Marie. Marie oversaw Grace’s medication and breathing treatments. While they did not have joint accounts, Marie was a signatory on Grace’s account. Several checks were written out of Grace’s account to Marie or Marie’s children. Marie testified these were loans. At the time of the deed to Van Cleave, Grace was seventy-seven, physically weak, and in poor health. Grace had given Marie her power of attorney, although Marie never exercised it.

¶ 19. Further, there was evidence that Grace was worried about her finances and wanted to be secure. There was evidence that she confided this to Marie as the reason she wanted to sell the Lost Gap property, and that she trusted and accepted Marie’s advice that $5,000 was a good price to sell sixty acres of timber land.

¶ 20. There was substantial credible evidence that Marie was in a position to exercise dominant control over Grace, who was both physically dependent upon and reposed trust in Marie. This evidence raised a rebuttable presumption of undue influence.

¶ 21. Once the presumption is established, the burden shifts to the fiduciary to rebut the presumption by clear and convincing evidence. Hawkins, 737 So.2d at 434(¶ 9). In order to overcome the presumption, Marie must show (1) that she exhibited good faith in the fiduciary relationship with Grace; (2) Grace acted with knowledge and deliberation when she executed the deed, and (3) Grace exhibited independent consent and action. Lancaster, 803 So.2d at 1289(¶ 10).

¶ 22. First, we consider whether there was substantial credible evidence that Marie acted in good faith. To determine this element, we must examine five factors: (1) who sought the preparation of the deed, (2) where and in whose presence was the deed executed, (3) what was the fee that was paid to execute the deed, (4) who paid the fee, and (5) was the deed executed openly or secretly. Rogers v. Pleasant, 729 So.2d 192, 194 (¶¶ 8-11) (Miss.1998).

¶23. Royal testified that Grace had offered earlier to sell Royal the land for $2,500, but she declined, because she did not have the money. Marie testified that Grace told her she wanted to sell the land on April 1, 2001. It was Marie who set up the negotiation between Van Cleave and Grace, who called Van Cleave’s attorney to get the deed drafted, and who set up the appointment for April 2 to have the deed executed. Grace executed the deed in the presence of Van Cleave’s attorney and Marie. The fee of $49 was paid by Van Cleave’s account. The check on Van Cleave’s account was written by Marie, including the purported signature of “Tommy Van Cleave.” There was evidence that suggested that, like other things, Van Cleave and Marie considered their separate accounts as shared property. The deed was executed secretly as no one in the family knew anything of this transaction from the date it was signed, April 2, 2001, to the time of Grace’s death in November of 2003. There was substantial credible evidence that Marie acted in bad faith.

¶ 24. Next, we look at whether Grace acted with knowledge and deliberation when the deed was executed. We must consider four factors: (1) Grace’s awareness of her asset and its general value, (2) an understanding by Grace of the persons who would be the natural inheritors of her bounty under the laws of intestacy or under a prior will and how the proposed change would legally affect the prior will or natural distribution, (3) whether non-relative beneficiaries would be excluded or included, and (4) knowledge of who controls Grace’s finances and business and by what method, and if controlled by another, how dependent was Grace on her and how susceptible to her influepce. Id. at 194(¶ 13).

¶ 25. The evidence was undisputed that Grace had no idea what the Lost Gap property was worth. She considered it basically worthless, when in fact it was worth over seventy thousand dollars. The testimony was that Grace understood that Marie, Perry and Ed were her natural beneficiaries, whereas only Marie and Perry were legatees under her will. The evidence further showed Grace was aware in 2001 that her 1996 will had left Marie the house and left Perry the Lost Gap property. There was evidence that she was unaware that the sale would disinherit Perry out of the property. Specifically, Perry testified that as late as September 2003, Grace told him he was inheriting the Lost Gap property. There was evidence that Marie and her daughter Royal handled Grace’s finances. Royal balanced Grace’s accounts and kept ledgers of income and expenses, while Marie wrote checks out of Grace’s accounts to pay Grace’s bills. There was evidence that Grace was susceptible to Marie’s influence as she accepted without question Marie’s representation of the land’s worth and that the family land be deeded in Van Cleave’s name rather than a family member’s. Even though Grace felt financially insecure, she made multiple loans to Marie and all of Marie’s children. There was substantial credible evidence that Grace did not act with knowledge and deliberation over the sale.

¶ 26. The final element we must examine is whether Grace exhibited independent consent and action. Grace accepted Marie’s word about the sale, rather than consult with her long-time estate attorney Charlie Smith. She did not communicate with the attorney who drew up the deed about the property description or the sales price. In fact, no one mentioned the price to the attorney at all. Grace did not set up the appointment. She was never left alone with the attorney to discuss the deed. While there is evidence that she wanted to sell the property, the whole thing was orchestrated in a twenty-four hour period, without Grace having participated in one step of the planning. There was substantial credible evidence that Grace did not exhibit independent consent and action.

¶ 27. In sum, we affirm the chancellor’s finding that Marie exercised undue influence over Grace with regard to the Lost Gap property.

III. Was there was a confidential relationship between Perry and Grace sufficient to impose a constructive trust on the $60,000?

¶ 28. Marie contends that the chancellor erred in failing to place a constructive trust on the $60,000 transferred from James to Perry. She maintains the money was given to Perry for the purpose of caring for Grace. Perry maintains the transfer was a gift. In the alternative, Perry argues that the claim is subject to several affirmative defenses.

¶ 29. Constructive trust is a means by which one who unfairly holds a property interest may be compelled to convey that interest to another to whom it justly belongs. In re Estate of Horrigan, 757 So.2d 165, 170(¶25) (Miss.1999). “Such a trust arises by implication from the relationship and conduct of the parties and may be established by parol testimony notwithstanding the statute of frauds.” Id. “It is the relationship plus the abuse of confidence that authorizes a court of equity to construct a trust for the benefit of the party whose confidence has been

abused.” Thornhill v. Thornhill, 905 So.2d 747, 753(¶ 18) (Miss.Ct.App.2004) (quoting Davidson v. Davidson, 667 So.2d 616, 620 (Miss.1995)). A constructive trust:

arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, to hold and enjoy.

Sojourner v. Sojourner, 247 Miss. 342, 353, 153 So.2d 803, 807 (Miss.1963) (quoting 54 Am.Jur. Trusts, § 218). “An abuse of confidence within the rule may be an abuse of either a technical fiduciary relationship or of an informal relationship where one person trusts in and relies upon another, whether the relation is a moral, social, domestic, or merely personal one.” Id. at 354, 153 So.2d at 807-08. “A confidential relationship within the rule need involve neither a promise for the benefit of another nor an express fiduciary relationship.” Id., 153 So.2d at 808.

¶ 30. Marie first insists that a confidential relationship existed between Perry and Grace at the time of the 1993 cash transfer, because he testified he performed the same services for his mother in 1993 that Marie did in 2001. However, at this time, Marie also lived right next door to Grace. Perry was never granted power of attorney, nor given joint financial responsibilities over Grace as was Marie. Finally, Grace’s problem with her hands did not start until 1998, and her health was not as bad in 1993 as it was in 2001.

¶ 31. The question boils down to whether he was given the money as a gift or was given the money to care for his mother. If he was given the money to care for his mother, this would place him in a position of confidence and trust over Grace. It would then follow that he abused this confidence, because it is undisputed that he did not use the $60,000 to care for her.

¶ 32. The evidence is in conflict on this point. Only Perry and James were present when the transfer was made in January 1993. Perry testified it was a gift, to take care of his own wife and children and to pay for his house. Over the years, there was evidence of tens of thousands of dollars given by the parents to Marie and Ed. McFarland testified that Grace said the money was for her. When McFarland told Grace to ask for it back, she refused. It was not until six weeks after James’s death that Grace discussed getting the money back. Royal testified that James later told her he gave the money to Perry to hold for Grace. McFarland, however, testified that the last three or four months of James’s life (June to September), he was forgetful and had a difficult time communicating. It was during this time that Royal claims James made the statement to her.

¶ 33. We find that Perry did not obtain the money through an abuse of confidence. Therefore, we hold that he does not hold the $60,000 in constructive trust for Grace’s estate.

¶ 34. THE JUDGMENT OF THE CHANCERY COURT OF LAUDER-DALE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . In fact, voiding this transfer would only put the homestead into the estate and then back to Marie through the will.


source: Caselaw Access Project

author: GRIFFIS, J., MYERS, P.J.,

license: Public Domain

text:
    Michael Mean SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01058-COA.
    Court of Appeals of Mississippi.
    Feb. 27, 2007.
    Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.

      Before KING, C.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Michael Mean Smith was found guilty of felony driving under the influence (“DUI”), third offense. Smith appeals. He argues that the evidence was insufficient to find him guilty of DUI third offense and that he was denied a fair trial when the State introduced evidence of pri- or DUI convictions during the guilt phase of the trial. We reverse and remand for re-sentencing.

FACTS

¶ 2. On November 27, 2004, Smith was traveling on Highway 43 in Leake County, Mississippi. Deputy Sheriffs James D. Moore and Greg Mullin, while on patrol together, passed Smith’s vehicle and noticed the vehicle was without a light to illuminate the license plate. The deputies pursued Smith. While in pursuit, they observed the vehicle swerve several times. After the vehicle stopped, Deputy Moore testified that Smith appeared intoxicated and smelled of alcohol. The deputies then took Smith to the Leake County Jail and administered a breath test, resulting in a blood alcohol content reading of .148 percent.

¶ 3. At trial, Deputy Moore and Deputy Mullin testified. At the conclusion of its case-in-chief, the State offered into evidence certified copies of court records concerning two prior DUI convictions. One document was an abstract of a court record that detailed Smith’s guilty conviction for DUI first offense on March 10, 2000. The abstract indicated that the offense occurred on February 2, 2000. The second document was a certified copy of a judgment finding Smith guilty for DUI third or subsequent offense on September 3, 2002. However, the judgment did not identify the date when the offense was committed.

¶ 4. At the conclusion of the State’s casein-chief, Smith’s counsel made a motion for a directed verdict and alleged that the State failed to meet its burden of proof. This motion was overruled. Thereafter, the jury returned a guilty verdict. Smith was sentenced to serve a term of four years in the custody of the Mississippi Department of Corrections and pay a $2,000 fine and all costs of court. Smith filed a motion for a new trial and alleged, among other things, that the sentence given was not supported by the evidence. The motion was denied.

ANALYSIS

I. The evidence was insufficient to find Smith guilty of the crime of DUI third offense.

¶ 5. Smith argues that the State presented insufficient evidence to prove that this was the third time Smith had been convicted of a DUI within five years. Smith claims that there was no evidence presented to the jury that the prior offenses occurred within five years of the most recent offense. The State argues this issue is barred for failure to raise the issue below.

¶ 6. We find that Smith did raise the argument below in his motion for a new trial. Specifically, Smith claimed that “the sentence given the Defendant by the Court in this case was not supported by the evidence.” Therefore, the State’s argument that this issue is barred for failure to raise it before the trial court is without merit. We now address the sufficiency of the evidence.

¶ 7. In reviewing a challenge of legal sufficiency, this Court must determine whether any rational juror could have found that the State proved each and every element of the crime charged beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The State must be given the benefit of all reasonable inferences that may be drawn from the evidence. Christian v. State, 859 So.2d 1068, 1071(¶ 12) (Miss.Ct.App.2003) (citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987)).

¶ 8. Smith was convicted in accordance with Mississippi Code Annotated Section 63-ll-30(2)(c) (Supp.2004). This section states in pertinent part that “[e]xcept as otherwise provided in subsection (3), for any third or subsequent conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five (5) years, such person shall be guilty of a felony.” § 63-ll-30(2)(c) (emphasis added). This requires that the State prove two things for each conviction. First, the offense resulted in a conviction for DUI; and second, the offense for which the defendant was convicted occurred within five years of the charged offense. Evidence of both the date the offense was committed, normally the date of the arrest, and that the arrest/offense resulted in a conviction are necessary to sustain a conviction under Section 63 — 11— 30(2)(c).

¶ 9. Evidence was introduced of two previous convictions that Smith received for DUI’s. The State introduced an abstract of a conviction on March 10, 2000, for an offense which occurred on February 2, 2000. Since the offense which Smith is currently appealing occurred on November 27, 2004, the February 2, 2000 offense clearly occurred within five years of the charge that he was on trial for as required by the statute.

¶ 10. Smith claims that error was with the second conviction that the State entered into evidence. For the second DUI conviction, the State entered into evidence a judgment dated September 3, 2002, convicting Smith of a DUI. Smith is correct that the judgment does not contain the date of when the offense occurred. Thus, the State failed to introduce evidence that the conviction under this judgment occurred within five years of the offense for which Smith was on trial. The State offered no further evidence of the date on which the second DUI offense occurred. The statute requires that the offenses must have been committed within a period of five years of each other, not the convictions. Proof of the convictions is required by the statute, but without including the date of the offense on the second DUI conviction there is no evidence to show that it occurred within five years of the most recent offense.

¶ 11. The dissent correctly notes that our courts have never addressed this issue. Yet, the dissent relies upon the “vast amount of precedent” to reach its interpretation that only evidence of prior convictions are necessary. We conclude that the dissent’s interpretation would require us to ■ignore the phrase in Section 63-ll-30(2)(e) that states “the offenses being committed within a period of five (5) years.” We find this conclusion to be contrary to the specific language of the statute, and we must give effect to this language. We interpret this to requires that the State prove that the first and second offenses were “committed” within five years of the third offense. The only way to establish this fact is for the State to introduce evidence of the date the first and second offenses were committed. Only then can we determine whether the “third offense” was committed within five years of the first and second. Evidence of only the conviction, which does not also contain the date the offense was committed, is not sufficient.

¶ 12. The dissent cites several cases, none of which offer any guidance here. In Dove v. State, 912 So.2d 1091, 1093-94 (¶¶ 10-11) (Miss.Ct.App.2005), the Court considered whether Dove’s prior convictions should have been allowed into evidence. Dove argued that the evidence unfairly prejudiced the jury. Id. This Court determined that the supreme court had “rejected this claim and noted that the evidence of the defendant’s prior DUI convictions was necessary to meet the State’s burden of proof and obtain conviction for a felony DUI.” Id. at 1094(¶ 11) (citing Weaver v. State, 713 So.2d 860, 865(¶ 31) (Miss.1997)). Thus, it was proper for the trial court to allow proof of prior convictions. Dove, 912 So.2d at 1094(¶ 11) This Court’s analysis continued, “[IJikewise, in the present case, it was necessary for the State to produce evidence of Dove’s prior DUI convictions in order to secure a felony DUI conviction, because the prior arrests were elements of the crime with which he was charged.” Id. (emphasis added). Thus, Dove is consistent with the majority’s ruling here that both the arrest and the conviction are elements of the crime of DUI third offense.

¶ 13. In Atwell v. State, 848 So.2d 190, 191(¶ 2) (Miss.Ct.App.2003), this Court considered a petition for post conviction relief where Atwell pled guilty to felony driving under the influence. This Court looked at the information available and determined that Atwells’ convictions for driving while intoxicated in the State of Georgia were sufficient under Miss.Code Ann. § 63 — 11—30(2)(c) (Rev.1996). Id. at 192(¶ 7). The issue before us here is not the same as in Atwell. This Court’s decision in Ativell did not delete an element of the crime, i.e. the “offenses being committed within a period of five (5) years.” Miss.Code . Ann. § 63-ll-30(2)(c) (Rev. 2004).

¶ 14. In Arnold v. State, 809 So.2d 753, 757 (Miss.Ct.App.2002), Arnold argued that there was no evidence of the first or second offenses. This Court, without providing all of the details, decided the evidence was sufficient and held:

Our statute on DUI/third offense reads as follows:

For any third or subsequent conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five (5) years, such person shall be guilty of a felony and fined not less than Two Thousand Dollars ($ 2,000.00) nor more than Five Thousand Dollars ($ 5,000.00) and shall be imprisoned not less than one (1) year nor more than five (5) years in the State Penitentiary.
Miss.Code Ann. § 63-ll-30(2)(c) (Rev.1996) (emphasis added). We read the statute to say that any third conviction of the crime of driving under the influence under Miss.Code Ann. § 63 — 11— 30(1) (Rev.1996), may be sentenced as a felony charge. There is nothing in the statute that we interpret to mandate that the convictions be labeled, literally, as a “first offense,” followed by a “second offense,” followed by a “third offense.” Because the statutory language provides that there must be three convictions within five years, without any further stipulations, we hold that Arnold was subject to be sentenced under this section governing third offense DUIs, despite his arguments otherwise. Miss. Code Ann. § 63-ll-30(2)(c) (Rev.1996).

Arnold, 809 So.2d at 757(¶ 7) (Miss.Ct.App. 2002) (emphasis in original). The Court concluded that “[a]lthough there is minimal information in the record as to Arnold’s two prior DUI convictions, there is nothing in the record to suggest that any statutory mandates were not followed in this case.” Id. at (¶ 13). Just as in Atwell, Arnold did not delete the statutory requirement that the offenses were committed within five years; instead, it merely held that there was sufficient evidence as required by the statute.

¶ 15. We illustrate the problem. The offense before us occurred on November 27, 2004, the date Smith was stopped and arrested. Under the statute, the State must establish that Smith was convicted of two prior DUI’s that were committed within five years. Thus, Smith had to have committed two prior DUI’s within the five year period from November 27, 1999 through November 27, 2004. The State offered a judgment that established that Smith was arrested on February 2, 2000, and convicted of the offense of driving under the influence on March 10, 2000. The first offense was established. For the second offense, the State offered a judgment that established that Smith was convicted of the offense of driving under the influence on September 8, 2002. The judgment does not establish the date of the arrest. If this offense was committed on or before November 26, 1999, it could not establish the second offense. The problem is that the State did not establish that the three DUI’s were committed within five years. We could assume that the September 3, 2002 conviction was committed within the five year period. However, we decline to assume facts not in evidence, and we will require the State to prove all of the elements of the crime.

¶ 16. Even giving the State the benefit of all inferences that may be drawn from the evidence, there was no evidence introduced to establish that the offense occurred within five years of the charged offense. Therefore, the evidence is insufficient to support the finding of Smith guilty of DUI third or subsequent offense.

II. The State denied Smith a fair trial by introducing evidence of prior DUI convictions during the guilt phase of the trial.

¶ 17. Smith’s second allegation of error is that he was denied a fair trial since evidence was introduced of prior bad acts. Specifically, he claims it was prejudicial to introduce evidence of the prior DUI convictions during the guilt phase of the trial. Smith relies upon Strickland v. State, 784 So.2d 957, 962(¶20) (Miss.2001), which stated that the “prior convictions are only relevant as to sentencing and should only be admitted during a separate sentencing phase.” The supreme court has since clarified that each prior conviction is an element of a charge for the crime of DUI third offense. Rigby v. State, 826 So.2d 694, 699(¶ 6) (Miss.2002). Since the earlier convictions are elements of the charge of DUI third offense, if we prevented the State from proving the prior convictions to the jury then we “would preclude the State from proving an essential element of the crime and the circuit court would breach its duty to instruct the jury on all the essential elements of the crime charged.” Ward v. State, 881 So.2d 316, 320(¶ 18) (Miss.Ct.App.2004) (citing Rigby, 826 So.2d at 701(¶ 13)). Since the State is required to prove all the essential elements of the crime charged, it was not unfair prejudice to present evidence of pri- or DUI convictions. Therefore, this issue is without merit.

CONCLUSION

¶ 18. While we find that there was insufficient evidence to prove Smith’s violation of DUI third offense, it is undisputed that Smith was in violation of Section 63-11-30(1) whereby he operated a motor vehicle with a blood alcohol concentration greater than .08%. Smith correctly alleges that the State failed to prove that Smith had two prior DUI convictions, where the offenses occurred within five years. Without evidence of when the offense for the September 3, 2002, conviction occurred, there is insufficient evidence to convict Smith of felony DUI. Accordingly, we remand this case to the Circuit Court of Leake County with direction to sentence Smith for violation of Section 63 — 11— 30(2)(b) and not Section 63 — 11—30(2)(c).

II19. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY IS REVERSED AND REMANDED TO SENTENCE MICHAEL MEAN SMITH ACCORDING TO MISSISSIPPI CODE ANNOTATED SECTION 63-ll-30(2)(b). ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

KING, C.J., LEE, P.J., IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. MYERS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CARLTON, J.

MYERS, P.J.,

Dissenting:

¶20. I respectfully disagree with the majority opinion and would affirm Smith’s conviction of felony DUI, third offense. The majority interprets a portion of our DUI statute, Mississippi Code Annotated section 63-ll-30(2)(c) (Rev.2004), to require that two previous DUI arrests, rather than convictions, are required to have occurred within a five year period of the third DUI arrest to subject the defendant to the charge of felony DUI. I would interpret our implied-consent law to require that a defendant have two prior DUI convictions occur within five years of the charge of the third DUI, rather than require that the dates of arrests occur within a five year period of the third DUI charge, in order to subject a defendant to the elevated felony DUI charge. My opinion is based upon review of the applicable statute, as well as numerous opinions of the Mississippi Supreme Court and this Court that address the necessary elements' required to prove felony DUI.

¶ 21. The language of the statute that the majority relies upon in formulating its opinion reads in pertinent part, “for any third or subsequent conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five (5) years, such person shall be guilty of a felony.” Miss.Code Ann. § 63-ll-30(2)(c) (emphasis added). While we note that, at first glance, the term “offenses” appears to indicate the dates of the actual previous DÜI arrests, further construction of the statute makes clear that the term “offenses” in this subsection is used to modify the term “conviction.” The statute references the phrase “offenses being committed,” but legally there is no judicial statement of a defendant having “committed” the offense until there is a conviction. Thus, it is clear that an element of the charge of felony DUI requires two previous convictions, rather than just arrests, be shown to prove felony DUI. Furthermore, a review of Mississippi Code Annotated section 63-11-30(8) instructs the application of our implied-consent law for the purposes of sentencing a felony DUI. The subsection reads in pertinent part,

For the purposes of determining how to impose the sentence for a second, third or subsequent conviction under this section, the indictment shall not be required to enumerate previous convictions. It shall only be necessary that the indictment state the number of times that the defendant has been convicted and sentenced within the past five (5) years under this section to determine if an enhanced penalty shall be imposed.

Miss.Code Ann. § 63-11-30(8) (emphasis added). There is no mention in this subsection of the necessity of proving a requisite number of previous arrests for DUI. The language is clear within this portion of the statute that the previous DUI convictions and sentences are required to be included in the indictment as a necessary element of felony DUI, third offense.

¶22. Furthermore, while our courts have never directly addressed the issue of this case precisely, case law discussion in other contexts regarding our implied-eon-sent law has consistently stated that prior convictions are the measuring elements in determining whether one may be properly charged with felony DUI. See Ostrander v. State, 803 So.2d 1172, 1175 (¶¶ 8-9) (Miss.2002) (discussing the holdings of three felony DUI cases, stating that “a prior conviction is a necessary element of the underlying charge” and holding that “a prior DUI conviction is a necessary element of a DUI second offense”) (emphases added); Rigby v. State, 826 So.2d 694, 702(¶ 6) (Miss.2002) (stating that “[p]rior DUI convictions are elements of a felony DUI charge and are required to be submitted to a jury”) (emphasis added); Williams v. State, 708 So.2d 1358, 1362 (Miss.1998) (addressing an argument regarding an indictment, stating “the underlying prior convictions that raised his third offense DUI to a felony charge”) (emphasis added); Weaver v. State, 713 So.2d 860, 865 (Miss.1997) (holding that “the State had the burden of proving the [defendant’s] two prior convictions in order to obtain the Felony DUI conviction”) (emphasis added); McIlwain v. State, 700 So.2d 586, 589 (Miss.1997) (quoting Benson v. State, 551 So.2d 188, 196 (Miss.1989)) (discussing the requirements of an indictment charging felony DUI, stating “the indictment must still ‘supply enough information to the defendant to identify with certainty the prior convictions relied upon by the State for enhanced punishment’ ”) (emphasis added); Dove v. State, 912 So.2d 1091, 1093(¶ 11) (Miss.Ct.App.2005) (finding it necessary for the State to produce evidence of the defendant’s prior DUI convictions in order to secure a felony DUI conviction); Ward v. State, 881 So.2d 316, 320(¶ 18) (Miss.Ct.App.2004) (stating “pri- or DUI convictions are necessary elements of felony DUI”) (emphasis added); Atwell v. State, 848 So.2d 190, 192(¶ 7) (Miss.Ct.App.2003) (interpreting Miss. Code Ann. § 63-ll-30(2)(c), stating “[i]t is not required that the predicate convictions be felonies, only that they be convictions for driving under the influence within the past five years”) (emphasis added).

¶ 23. This Court has made it clear that prior convictions are a necessary element which must be proven in order to obtain a conviction on a felony DUI in Smith v. State, 736 So.2d 381 (Miss.Ct.App.1999) and in Watkins v. State, 910 So.2d 591 (Miss.Ct.App.2005). In Smith, we differentiated the crimes of first offense, second offense, and third offense felony DUI by stating “[t]he crime of felony DUI requires a third or subsequent charge of DUI together with two previous DUI convictions within a period of five years.” Id. at (¶ 6) (citing Miss.Code Ann. § 63-ll-30(2)(c) (Rev.1996)) (emphasis added). We later explained in Watkins the sentencing procedure for conviction of a third DUI, stating “the question of the number of prior convictions under Miss.Code Ann. § 63-11-30 generally precedes the question of sentencing and determines the range of sentences available to be imposed.” Watkins, 910 So.2d at (¶ 11) (emphasis added) “[T]he number of prior convictions determines which subsection of Miss.Code Ann. § 63-11-30 applies.” Id. (emphasis added).

¶ 24. Moreover, the DUI statute has been interpreted by this Court in Arnold v. State, where we found that “the statutory language provides that there must be three convictions within five years.” 809 So.2d 753, 757(¶11) (Miss.Ct.App.2002) (emphasis added). In this case, “[w]e read the statute to say that any third conviction of the crime of driving under the influence under Miss.Code Ann. § 63-11-30(1) (Rev.1996), may be sentenced as a felony charge.” Id. (emphasis added). We stated “[t]here is nothing in the statute that we interpret to mandate that the convictions be labeled, literally, as a ‘first offense,’ followed by a ‘second offense,’ followed by a ‘third offense.’ ” Id. (emphasis added). We went on further to discuss our decision in McIlwain v. State, 700 So.2d 586, 589 (Miss.1997), stating “the court ruled that ‘it is only necessary that the defendant have been convicted of [the] previous offenses ... it is irrelevant whether Mcllwain had been charged with a D.U.I. First and a D.U.I. Second.’ ” Id. (emphasis added).

¶ 25. In light of the language of Mississippi Code Annotated section 63-11-30(8), as well as the overwhelmingly vast amount of related case law we have before us interpreting our DUI statute to require previous convictions as a, predicate to a charge of felony DUI, I must dissent from the majority opinion. The implied-consent statute, as it pertains to a charge of felony DUI, creates a prerequisite that the two prior DUI convictions, occurring either through a finding of guilt or the entry of a guilty plea, precede the commission of the principal offense within five years in order to enhance the charge to felony status under the DUI statute. Smith was twice convicted of DUI, in March of 2000 and September of 2002, before he was charged a with a third violation of the DUI statute in November of 2004. The dates of his two previous DUI convictions fell within five years of the third DUI charge. He, therefore, was subject to conviction of third offense felony DUI. Mississippi Code Annotated section 63-11-30 necessarily contemplates that a defendant must be found guilty or must plead guilty on two occasions prior to the commission of a third DUI before the State may bring a charge for felony DUI. To hold otherwise, I think, is contrary to the language of the statute, as well as contrary to the findings of a vast number of cases of the Mississippi Supreme Court and this Court.

CARLTON, J., JOINS THIS OPINION.


author: CARLTON, J.,

text:
    James BROWNLEE, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00036-COA.
    Court of Appeals of Mississippi.
    March 6, 2007.

      Thad Buck, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., GRIFFIS, ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. James Brownlee was convicted by a Clay County Circuit Court jury for the crime of manslaughter. On appeal, he challenges the sufficiency and weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. In the early morning hours of February 2, 2004, Brownlee and Shawn Morton, the victim, were patrons at the Huddle House restaurant on Highway 45 in West Point, Mississippi. The two men had an argument which led to a physical altercation in the Huddle House parking lot. Morton suffered a stab wound to his lower chest and died on the scene from bleeding. The specific circumstances of Morton’s death are the subject of this appeal and are discussed in detail below.

¶ 3. Brownlee was arrested and indicted for the crime of deliberate design murder. Miss.Code Ann. § 97-3-19 (Rev.2006). A jury convicted Brownlee of the lesser-included offense of manslaughter. His appeal has been deflected to this Court.

DISCUSSION

1. Sufficiency of Evidence

¶ 4. Brownlee argues that his motion for a directed verdict should have been granted. He directs our attention to his testimony that he was acting in self-defense. Brownlee relies on caselaw in stating that Morton’s hands could be deadly weapons. Hinson v. State, 218 So.2d 36 (Miss.1969). Brownlee argues that he was repelling Morton’s attack and had the right to defend himself. Miss.Code Ann. § 97-3-15 (Rev.2006); Manuel v. State, 667 So.2d 590 (Miss.1995); Jackson v. State, 594 So.2d 20 (Miss.1992). Brownlee concludes that the State failed to prove every necessary element of murder and the lesser-included offense of manslaughter. The issue of whether the evidence was sufficient to convict Brownlee of murder is moot since that was not the crime for which he was convicted.

¶ 5. In reviewing the denial of a directed verdict we consider all of the evidence in the light most favorable to the State. Shaw v. State, 915 So.2d 442, 448 (Miss.2005); Bush v. State, 895 So.2d 836, 843 (Miss.2005). Considering all reasonable inferences that could have been derived from the evidence, we must determine whether a jury could not have found Brownlee guilty. Shaw, 915 So.2d at 448-49.

¶ 6. The crime of manslaughter requires “the killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense.... ” Miss.Code Ann. § 97-3-35 (Rev.2006).

¶ 7. The evidence presented against Brownlee included a number of witnesses to the altercation. The situation leading to Morton’s death began to unfold when the two men exchanged certain statements in the restaurant. There were ten to fifteen people in the restaurant around the time of the fight. Restaurant occupants included on-duty Officer Mark Stafford of the West Point Police Department, off-duty Officer Albert Lee, Huddle House employees Keri Lomax and James Baker, and patrons Adam Winfield, Jason Smith, and James Mays. Officers Stafford and Lee had departed the restaurant prior to the fight between Morton and Brownlee.

¶ 8. Lomax testified to how the fight escalated. Just after the officers departed, Morton and Brownlee began to argue and became very loud. Brownlee extended his arms and stated something to the effect of wanting to take care of the disagreement. The men then walked toward the door and pushed each other a few times as they were walking outside. They began fighting on the sidewalk between the restaurant building and the parking lot. Lomax telephoned the West Point Police when the fight began. The actual fighting was very brief. Brownlee walked to his vehicle in the parking lot and extended his upper body into the vehicle to retrieve an object. The distance between Morton and Brownlee was about ten feet at this point. Brownlee walked back toward Morton and hit Morton in the middle of his torso, between his stomach and chest. Morton stepped back and Brownlee departed in his vehicle. Officer Stafford was pulling into the restaurant parking lot just as Brownlee pulled out onto the road.

¶ 9. Baker testified that he heard Brownlee and Morton arguing. Brownlee then went to the door and told Morton to come outside. Baker stated that Morton hit Brownlee in the head while the two were exiting the building through the foyer. Once outside the men exchanged a few punches. Brownlee took off his shirt and went to his vehicle. Brownlee then went back toward Morton and struck him in the chest area. Brownlee then returned to his car and Morton started bleeding.

¶ 10. Winfield testified that after the two had words, Brownlee walked through the door with Morton and began to fight outside of the building. Winfield stated that the fight was more like wrestling or tussling, and that not “many licks passed.” Winfield had moved from inside the building into the foyer, just inside from where the two men were fighting. After the brief altercation, Brownlee walked to his car and came back at Morton, striking him in the upper area of the abdomen. No weapon was seen but after Morton was struck he grabbed his chest and began bleeding. Brownlee then departed in his vehicle.

¶ 11. Smith testified that he accompanied Winfield to the restaurant before the altercation began; Brownlee and Morton were arguing about money. Morton made a statement about giving Brownlee money if he was broke. Brownlee gestured for the two to go outside and Brownlee opened the door leading into the foyer. Morton paused briefly before proceeding outside. The two men began to struggle a bit while passing through the foyer. The men continued to fight out onto the sidewalk and parking lot area near the building. Smith had gone outside when the men were fighting. After the initial fighting, Brownlee walked back to his car and then came back toward Morton. Smith stated that this is when Brownlee “stuck him.” Morton then stated, “[he] got me, he stabbed me.” Smith testified that he either saw a knife or at least that the object in Brownlee’s hand was “something [that] resembled a knife....”

¶ 12. Mays testified that a portion of the initial comments between Morton and Brownlee involved money — a comment Morton made to Brownlee about purchasing dinner for the female with Brownlee. Brownlee then offered for Morton to go outside, implying that the two would fight. The struggle began while the two men were going through the door and continued outside. The men broke apart and Brownlee went into his pocket, grabbed an object, and struck Morton. Mays was outside for the last part of the fight. He stated that he thought the object in Brownlee’s hand was a knife but did not know whether it was a knife or not. After Brownlee struck Morton, Morton stated, “[he] stabbed me, man.”

¶ 13. Officers Stafford and Lee testified that Morton and Brownlee exchanged words while the officers were in the restaurant but did not seem aggressive or confrontational. Morton entered the restaurant after the officers had already been there. Brownlee and his female companion entered the restaurant shortly after Morton had arrived. Morton dropped some money on the floor. Brownlee picked up the money, gave it back to Morton and made a statement to the effect that Morton needed to stop acting up. There was also some non-aggressive words between Morton and two other patrons about how much money Morton was being paid as a welder.

¶ 14. Morton again dropped some money on the floor and Brownlee approached Morton, picked up the money, gave it to Morton, and stated that Morton needed to leave the people alone. The two men continued to speak back and forth to each other in jest. Officers Stafford and Lee departed the restaurant. Shortly after leaving, Officer Stafford received a dispatch that there was a fight at the Huddle House.

¶ 15. Upon returning to the restaurant, he noticed Morton had blood on his shirt. Morton pointed at the car leaving the parking lot and stated, “that’s them.” Officer Stafford proceeded to pull over the vehicle which Brownlee was driving. He instructed Brownlee to return to the Huddle House and then arrested Brownlee upon receiving the information that Morton had been stabbed. Officer Lee also returned to the restaurant upon noticing a police car heading toward the Huddle House. He instructed Morton to sit down and then applied a towel to the wound in an effort to stop the bleeding. Morton died from excessive bleeding due to a stab wound to his lower chest. No knife or other weapon was recovered by police. An autopsy revealed that the wound was consistent with that which would be inflicted by a knife with one sharp edge and one blunt, consistent with many types of knife blades.

¶ 16. This evidence supports a conclusion that Brownlee was not under attack from Morton, and even that Brownlee advanced on Morton after the fight had ended. There is also evidence that could create a reasonable inference that Brownlee retrieved an object from his vehicle and then stabbed Morton. Despite Brownlee’s claim that he did not have a knife, did not stab Morton, and that such an action would be justifiable homicide for acting in self-defense, the jury could certainly have decided to believe the other witnesses to the incident. The credibility of a witness is for the jury to decide. Hobgood v. State, 926 So.2d 847, 854 (Miss.2006); Byrd v. State, 522 So.2d 756, 760 (Miss.1988).

¶ 17. Considering all of the evidence in the light most favorable to the State, and all reasonable inferences that could have been derived from the evidence, we conclude that a jury could have found Brown-lee guilty of killing Morton, in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense. The trial court did not commit error in denying the motion for a directed verdict.

2. Weight of Evidence

¶ 18. Brownlee also argues that the trial court erred by overruling his motion for a new trial. He argues that the jury verdict was against the overwhelming weight of the evidence and to allow his conviction to stand would sanction unconscionable injustice. Groseclose v. State, 440 So.2d 297 (Miss.1983).

¶ 19. In reviewing a challenge to the weight of the evidence, we review the evidence in a light most favorable to the verdict, sitting as a limited thirteenth juror. Bush, 895 So.2d at 844. The verdict will be disturbed only if allowing it to stand would “sanction an unconscionable injustice.” Id.

¶ 20. The evidence discussed above demonstrates that multiple eyewitnesses perceived Brownlee strike Morton in the area where Morton was stabbed during their fight. Having already discussed the evidence against Brownlee, we can only conclude that allowing his conviction to stand would not sanction an unconscionable injustice. The trial court committed no error in overruling the motion for a new trial.

¶ 21. Brownlee briefly mentions that his conviction should not stand because of other errors made at trial but not raised in this appeal. This statement fails to raise an issue for review, and we have found no evident deficiencies in the fairness of the trial Brownlee received.

¶ 22. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FOUR YEARS OF POST-RELEASE SUPERVISION AND A $1,250 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

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


text:
    Danny MELTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00008-COA.
    Court of Appeals of Mississippi.
    March 6, 2007.

      Louis Ivan Burghard, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, C.J., CHANDLER, ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Danny Melton was convicted by a Lincoln County Circuit Court jury for multiple crimes relating to methamphetamine. On appeal, he contests the validity of a search of his premises. Finding no error, we affirm.

FACTS

¶ 2. On February 15, 2005, approximately six sheriffs deputies were involved in an undercover purchase of drugs from Melton’s neighbor, Jeff Wilson. A few minutes passed between the actual purchase and the arrival of the deputies. Upon arrival the deputies could not locate the marked purchase money. A search of the area included Melton’s adjacent yard. A few items that were commonly used in the manufacture and use of methamphetamine were located on Melton’s property. A search warrant was obtained and more incriminating items were found on Melton’s property which led to his arrest and indictment. The details of how the items were located that led to a search warrant are the subject of this appeal and are discussed below.

¶ 3. A grand jury returned a four count indictment against Melton for the unlawful possession of precursor chemicals with intent to manufacture methamphetamine, unlawful manufacture of methamphetamine, unlawful possession of less than one tenth of a gram of methamphetamine with intent to distribute, and conspiracy to manufacture methamphetamine.

¶ 4. A Lincoln County jury convicted Melton for the crimes of possession of precursor chemicals to manufacture methamphetamine, manufacturing methamphetamine, and possession of methamphetamine with intent to distribute. Melton’s appeal has been deflected to this Court.

DISCUSSION

¶ 5. Both of Melton’s arguments on appeal relate to the suppression of evidence and involve an alleged violation of his Fourth Amendment rights. Both the Fourth Amendment to the United States Constitution and Article 3, Section 23 of the Mississippi Constitution protect citizens from unreasonable searches and seizures. Our analysis is guided under a mixed standard of review in that “determinations of reasonable suspicion and probable cause should be reviewed de novo.” Dies v. State, 926 So.2d 910, 917 (Miss.2006) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (other citation omitted)). We recognize however that we are “restricted to a de novo review of the trial judge’s decision based on historical facts reviewed under the substantial evidence and clearly erroneous standards.” Dies, 926 So.2d at 918 (citation omitted).

1. Legality of Detention

¶ 6. Melton argues that he was illegally detained leading up to the search of his yard. He argues that law enforcement had no grounds for detaining him because the investigation concerned Melton’s neighbor and there was no evidence that Melton was involved in any criminal behavior with his neighbor.

¶ 7. Melton testified that he pulled into his driveway, his fiancé pulled in behind him, and then the Lincoln County Sheriff and a few people with the sheriff pulled into Melton’s driveway. Deputy Barefield was the only witness to testify at the suppression hearing. The deputy testified that when he approached Melton, the sheriff was already speaking with Melton. Melton stated that the sheriff informed him that the deputies next door were trying to locate some marked money relating to the drug bust at Wilson’s house and they might want to speak with Melton for a minute. Melton said he replied, “yes, sir.”

¶ 8. Melton, his fiancé, his daughter, her boyfriend, and Melton’s grandchild were standing in the front yard when Deputy Barefield approached and requested to see their money. They all complied with the request. None of the money matched the serial numbers of the marked money. Melton claims that at this point he requested that all of the law enforcement leave his property. Melton also claims that he told the officers that they were trespassing. Whether Melton made these statements is disputed.

¶ 9. Deputy Barefield testified that he communicated to Melton that the deputy would like to take a look around Melton’s yard in an effort to locate the missing money. Deputy Barefield testified that he explained to Melton that Melton had the right to refuse giving consent to the search. Wilson could have placed the money outside somewhere in his yard or in Melton’s adjacent yard as there was a few minutes delay between the purchase of drugs and the arrival of police. The deputy testified that Melton gave verbal consent to the search because Melton “stated okay.”

¶ 10. Melton either walked beside or trailed closely behind the deputy as the two walked along the fence line separating the two yards and into Melton’s backyard. Deputy Barefield became suspicious of some items on the ground in Melton’s yard. The items found in Melton’s yard included a two-liter bottle containing a white liquid substance, another bottle, and a piece of burnt tin foil. Melton stated he did not know what the objects were. One of the bottles had a strong ammonia smell. Deputy Barefield recognized that these items were used in the manufacture and use of methamphetamine.

¶ 11. The deputy communicated to Melton that information was received that Melton used his carport to manufacture methamphetamine. The original source of this information was not disclosed. Melton became visibly worried at this point and forbade any further access to his property including the carport, shed, and house. As soon as Melton made this statement denying further access without a search warrant, the deputy ceased any further search, departed from Melton’s property and proceeded to obtain a search warrant based only upon the items found in Melton’s yard. Other deputies watched the property while a search warrant was being obtained.

¶ 12. Based upon the suspicious items found in Melton’s yard, Deputy Barefield was able to obtain a search warrant for Melton’s property. A search of Melton’s carport and property revealed additional items which led to Melton’s arrest and indictment. Deputy Barefield testified that the search warrant was obtained because of the items found in Melton’s yard and not based upon any previous information that Melton was involved with manufacturing methamphetamine. The missing money was later found at Wilson’s property-

¶ 13. The Mississippi Supreme Court has stated that law enforcement activities can be divided into three types:

(1) Voluntary conversation: An officer may approach a person for the purpose of engaging in a voluntary conversation no matter what facts are known to the officer since it involves no force and no detention of the person interviewed; (2) Investigative stop and temporary detention: To stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest; (3) Arrest: An arrest may be made only when the officer has probable cause.

Dies, 926 So.2d at 918 (quoting Singletary v. State, 318 So.2d 873, 876 (Miss.1975)).

¶ 14. Melton is arguing that his interaction with Deputy Barefield should be classified as an investigatory detention. In accordance with United States Supreme Court precedent, our Supreme Court has recognized that “given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest....” Wilson v. State, 935 So.2d 945, 950 (Miss.2006) (internal citations omitted). The Court has stated that the “United Stated Supreme Court has unequivocably settled the question of the lawfulness of an investigative stop where there is no probable cause to arrest if the officer acts reasonably.” Id. at 951 (citation omitted). We apply this reasonableness test on a case-by-case basis because no “concrete rule” has been articulated by either the United States Supreme Court or the Mississippi Supreme Court for the specific circumstances justifying an investigatory stop. Id.

¶ 15. In the present case, Melton was approached by law enforcement because of missing marked money used in an undercover purchase of contraband. There is credible evidence that Melton voluntarily complied with the request made by Deputy Barefield to view the money in his wallet. Testimony was presented that Melton gave consent to Deputy Barefield to look around the yard for the missing money. After suspicious items were discovered on Melton’s property, Melton withdrew his consent to search, with which the deputy immediately complied.

¶ 16. The nature of his encounter with the deputy seems more properly characterized as a voluntary conversation. The investigation that was taking place was not directed at Melton personally but involved Melton because of the close proximity of his yard and the possibility that the drug money may be located on his property. Melton obviously knew he had the right to terminate the search, and exercised that authority in demanding the search end and not continue without a search warrant. Under these circumstances there was no illegal detention.

2. Validity of Consent to Search

¶ 17. Melton also argues that he did not and could not have a valid consent to the search of his premises. Melton concludes that the circuit court erred in not suppressing the evidence against him because the evidence was unconstitutionally obtained. Melton alleges that he was coerced or intimidated into consenting to the search and relies on cases involving such situations. U.S. v. Morales, 171 F.3d 978, 988 (5th Cir.1999) (involuntary consent where officers with drawn weapons rushed into warehouse and ordered suspects to the floor); U.S. v. Ivy, 165 F.3d 397, 402 (6th Cir.1998) (involuntary consent where officer threatened to arrest suspect’s girlfriend and take child into protective custody).

¶ 18. We review the voluntariness of consent to search based on the “totality of the circumstances.” Culp v. State, 933 So.2d 264, 272 (Miss.2005). This consideration includes, “among other things: the location of the encounter, any overt coercion, the display of weapons, experience of the defendant with the criminal justice system, and the defendant’s age.” Id. (citing Jones v. State ex rel. Miss. Dep’t of Pub. Safety, 607 So.2d 23, 27 (Miss.1991)). There is no requirement that defendants be “affirmatively told that they had the right to refuse for their actions to be voluntary.” Id. (citing Schneckloth v. Bustamante, 412 U.S. 218, 234, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)).

¶ 19. At the time of the encounter, Melton was a grown adult. Melton had some level of awareness of interaction with law enforcement because of a previous encounter with the law many years ago. Of importance is that Melton actually ended the search demanding that the deputy obtain a search warrant. The consent was given at Melton’s home, not in seclusion with only a police presence. Armed police were present due to the ongoing search for the missing marked money but there is no indication that weapons were drawn.

¶ 20. Police interaction with Melton took place in the open area outside of Melton’s house with at least a couple of other adults present. Melton was certainly not in custody when consent was requested to search his yard. Custody requires that “a reasonable person would feel that they were going to jail and not just being temporarily detained.” Culp, 933 So.2d at 272. A determination of whether a person was in custody is determined by “whether a reasonable person felt they had the freedom to refuse police demands.” Id. There is evidence that the deputy sheriff warned Melton about his right to refuse consent to a search of his yard. Melton eventually exercised that right but only after suspicious items were located in his yard. Melton’s actions demonstrate that he felt that he had the freedom to refuse police demands, and in fact did so.

¶ 21. The record reflects that Melton initially consented to the search of his property but withdrew that consent when the suspicious items were found. Melton’s actions gave probable cause to believe that more evidence of the manufacture and use of methamphetamine was located on Melton’s property. There was adequate support for the trial judge to deny Melton’s motion to exclude the evidence.

¶ 22. A legally insignificant discrepancy was discovered while completing a comprehensive review of the record. Count three of the indictment charged that Melton did “feloniously ... have in his possession less than one tenth (.1) gram of methamphetamine ... in violation of Section 41-29-139.... ” Melton was convicted on this count as charged in the indictment. The sentencing order states that on count three Melton was convicted for the crime of “unlawful possession of less than one tenth of a gram of methamphetamine with intent to distribute.... ” The discrepancy is that Melton was charged with simple possession which falls within Section 41-29-139(c), not charged with the crime of possession with intent to distribute under Section 41-29-139(a)(l).

¶ 23. On count three Melton received a sentence of four years imprisonment. The four year sentence is to run concurrently with the much longer sentences on counts one and two. This reflects that the sentencing order contains a clerical error because four years is the maximum sentence Melton could receive on count three for the crime of simple possession of less than one-tenth of a gram of methamphetamine. See Miss.Code Ann. § 41 — 29—139(c)(1)(a) (stating the maximum sentence for possession of less than one-tenth of a gram of methamphetamine is four years if indicted as a felony charge). Also, there are other obvious errors in the order, such as stating that the Melton is sentenced to “THIRTY (3) YEARS” on another count. Even so, the sentence on count three is within the statutory range for the indicted charge and conviction.

¶ 24. Courts of record have inherent power to correct clerical errors in criminal prosecutions and civil cases. Kitchens v. State, 253 Miss. 734, 179 So.2d 13, 14 (1965). We affirm Melton’s conviction and sentence but remand for the Circuit Court of Lincoln County to correct the sentencing order.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF CONVICTION OF COUNT I POSSESSION OF PRECURSOR CHEMICALS WITH INTENT TO MANUFACTURE METHAMPHETAMINE AND SENTENCE OF THIRTY YEARS; COUNT II UNLAWFUL MANUFACTURE OF METHAMPHETAMINE AND SENTENCE OF THIRTY YEARS; AND COUNT III POSSESSION OF LESS THAN ONE TENTH OF A GRAM OF METHAMPHETAMINE AND SENTENCE OF FOUR YEARS, ALL TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE FIRST TWENTY YEARS TO SERVE AND FIVE YEARS OF REPORTING/SUPERVISED POST-RELEASE SUPERVISION AND FIVE YEARS OF NON-REPORTING/UNSUPERVISED POST-RELEASE SUPERVISION TO RUN CONSECUTIVELY TO EACH OTHER, A FINE OF $75,000 AND RESTITUTION OF $300, IS AFFIRMED. THE CAUSE IS REMANDED TO THE CIRCUIT COURT FOR CORRECTION OF THE SENTENCING ORDER CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Eddie Mosley DAVIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01877-COA.
    Court of Appeals of Mississippi.
    March 6, 2007.

      Craig Andrew Conway, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., CHANDLER, ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Eddie Mosley Davis was convicted by a Lauderdale County Circuit Court jury of the crime of sale of cocaine. On appeal, he contests the weight and sufficiency of the evidence and argues an erroneous jury instruction was given. We find no error and affirm his conviction and sentence.

FACTS

¶2. On December 15, 2004, Davis was the subject of an undercover drug purchase arranged by a confidential informant working for the East Mississippi Drug Task Force. The informant was positioned in a hotel room for the purpose of purchasing contraband. Davis arrived at the hotel and parked in front of the room in which the informant was located. Davis had his two children in the vehicle, a two-year old and an one-year old. Davis carried the younger child with him into the hotel room and the older child remained in the vehicle. The transaction took only about three minutes. Davis was arrested upon exiting the room and placing his child back into the vehicle. No weapon was found on Davis, but a pistol was recovered from the center console of the vehicle.

¶ 3. On March 29, 2005, Davis was indicted for sale of cocaine while in possession of a firearm. At the time of trial, the Task Force was unable to locate the confidential informant. The evidence against Davis included a tape recording of the transaction, the photocopied money given to the informant and found on Davis, the contraband given to the informant, and the testimony of several agents conducting the controlled purchase of contraband that day. A jury convicted Davis for the lesser-included offense of sale of cocaine. Davis was sentenced to fifteen years imprisonment, a $5,000 fine, and to pay court costs.

DISCUSSION

1. Jury Instruction

¶4. In his second assignment of error, Davis argues that the court erred by giving an instruction to the jury allowing them to consider convicting Davis for sale of cocaine when that charge was not listed as an offense on the indictment. According to Davis, the problem is that he prepared a defense against the possession of a firearm portion of the charge but not against the sale of cocaine element. Davis alleges that he would have prepared a defense against the crime of sale of cocaine if he had full knowledge that the State would be proceeding against him on that charge.

¶ 5. Davis presents a collection of case-law stating that to be valid, an indictment must contain the essential elements of the charged crime. Peterson v. State, 671 So.2d 647, 652-53 (Miss.1996). Davis also relies on caselaw stating that the purpose of an indictment is to notify a defendant of the charges against him in order to prepare an adequate defense. Lewis v. State, 897 So.2d 994, 996 (Miss.Ct.App.2004).

¶ 6. Under the indictment the prosecution had to prove that Davis “did wilfully, unlawfully, and feloniously and knowingly sell, barter, transfer, distribute or dispense approximately 1.59 grams of Cocaine ... WHILE IN POSSESSION OF A .380 PISTOL ...” in violation of Section 41-29-139 and 41-29-152. (emphasis in original). The jury returned a verdict finding Davis guilty of sale of cocaine.

¶ 7. On review for error, the jury instructions given are to be read as a whole. Johnson v. State, 908 So.2d 758, 764 (Miss.2005). When the given instructions explain the law fairly and no injustice is created, there is no error. Id. A trial court does not need to give redundant jury instructions. Swann v. State, 806 So.2d 1111,1117 (Miss.2002).

¶ 8. The jury was instructed that they could return a verdict finding Davis guilty of the lesser-included offense of sale of cocaine. A jury is statutorily authorized to find a defendant guilty of an inferior offense, “the commission of which is necessarily included in the offense with which he is charged in the indictment ... without any additional count in the indictment for that purpose.” Miss.Code Ann. § 99-19-5(1) (Supp.2006); State v. Shaw, 880 So.2d 296, 300-01 (Miss.2004).

¶ 9. The elements for the charge of sale of cocaine as listed in Section 41-29-139 are necessarily included to prove the crime of sale of cocaine while in possession of a firearm under Section 41-29-152. Section 41-29-152 simply provides for an enhanced penalty for the commission of a crime under Section 41-29-139. It is still necessary that each element of the charged offense under Section 41-29-139 be proven. The jury was properly instructed that Davis could be found guilty of sale of cocaine, a lesser-included offense to the charge of sale of cocaine while in possession of a firearm. There is no merit to the argument that an indictment is not valid because a lesser-included offense was not stated.

2. Weight and sufficiency of the evidence

¶ 10. The entirety of the argument Davis presents on this issue is based upon the assumption that the jury could only convict him of the enhanced crime of sale of cocaine while in possession of a firearm. Davis does not present an argument in response to his conviction for the lesser-included offense of sale of cocaine and therefore his argument as to the weight and sufficiency of the evidence is misplaced.

¶ 11. Having already found that the jury properly returned a verdict for the lesser-included offense of sale of cocaine, we conclude that the trial court properly denied the motions for directed verdict, judgment not withstanding the verdict, and a new trial.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

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