text:
    Jimmy Wayne YOUNG, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00114-COA.
    Court of Appeals of Mississippi.
    March 27, 2007.

      Jimmy Wayne Young, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., CHANDLER, ISHEE and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. Jimmy Wayne Young entered a guilty plea in the Itawamba County Circuit Court for the crimes of burglary of a dwelling and grand larceny. He now challenges the validity of the indictment, his plea, and the effectiveness of his counsel. Finding no error, we affirm.

FACTS

¶ 2. On July 20, 2004, an Itawamba County grand jury returned a three count indictment against Young for the crimes of burglary of a dwelling and two counts of grand larceny. Miss.Code Ann. § 97-17-23 (Rev.2006) (burglary of a dwelling statute carrying a maximum imprisonment penalty of twenty-five years); § 97-17-41 (Rev.2006) (grand larceny statute). Due to prior felony convictions, Young was also charged as a recidivist. Miss.Code Ann. § 99-19-81 (Rev.2000) (requiring a felon convicted for a third time to receive and serve the maximum sentence).

¶ 3. On January 25, 2005, Young entered a guilty plea to the charges of burglary of a dwelling and one count of grand larceny. In exchange for his plea the additional count of grand larceny and the habitual status charges were retired to the files, and the State made a lenient sentence recommendation. The trial judge sentenced Young, according to the recommendation of the State, to twenty years, eight to serve, twelve suspended, for burglary of a dwelling, and ten years suspended for grand larceny. Young is now dissatisfied by the circumstances under which his plea was offered and challenges his conviction and sentence through the arguments itemized and addressed below. His appeal has been assigned to this Court.

DISCUSSION

1. Validity of Indictment

¶ 4. Young argues that the indictment charging him with burglary of a dwelling is faulty because the structure did not qualify as a dwelling. Young reasons that, as a matter of law, the most serious crime for which he could be charged was burglary of a building other than a dwelling. Miss. Code Ann. § 97-17-23 (Rev.2000) (carrying a maximum imprisonment penalty of seven years). He concludes that his plea was invalid because he was unaware that he was charged with the wrong crime and entered a guilty plea for a crime for which he could not be charged. His main contention is that the State never referred to the building as a “dwelling” or “residence.” He cites only to the above mentioned statutes in support of his position.

¶ 5. The State contends that this issue is waived assuming Young entered a valid guilty plea. Young’s argument that his plea is invalid hinges upon whether the alleged defect in the indictment is actually a defect. To avoid a circular discussion of the issues raised, we first address whether the indictment was defective.

¶ 6. Young argues that the State charged him with the enhanced crime of burglary of a dwelling when he should have been charged with the lesser offense, burglary of a building, other than a dwelling. Of importance is that the State was not required to advance evidence to prove the building was a dwelling. By entering a guilty plea, Young not only confessed to the actions as charged in the indictment but also stipulated that the prosecution did not need to advance evidence of guilt. Florida v. Nixon, 543 U.S. 175, 187-88, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (quoting Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). Young acknowledged at the plea hearing that he knew his plea would waive the requirement for the State to prove the elements of the charges against him. He also confessed that he did “break and enter a certain dwelling owned and occupied by [the burglary victims].... ”

¶ 7. Even so, we read Young’s pro se brief broadly and, therefore, conclude that his post-conviction argument fits within the post-conviction relief statute as challenging the jurisdiction of the trial court to accept his plea due to a defective charging document. Miss.Code Ann. § 99-39-5(l)(a) (Rev.2000); Conerly v. State, 607 So.2d 1153, 1156 (Miss.1992) (entering a guilty plea waives the right to challenge many errors but does not waive subject matter jurisdiction); Jefferson v. State, 556 So.2d 1016, 1021 (Miss.1989) (trial courts obtain subject matter jurisdiction over an offense by the defendant being served with an indictment charging the essential elements of a crime).

¶ 8. The sole question presented under this issue is whether the structure from which items were taken qualifies as a dwelling under Section 97-17-23. Young concedes in his brief that the structure is a “hunting club cabin.” Count one of the indictment charged that Young did:

wilfully, feloniously and burglariously break and enter a certain dwelling owned and occupied ... with the felonious and burglarious intent to take, steal and carry away the goods, chattels and personal property of the said [owners] ....

¶ 9. In 2001, the Mississippi Supreme Court reviewed case law in discussing the question of “whether a building [was] characterized as a dwelling.” Edwards v. State, 800 So.2d 454, 461-62(¶ 11) (Miss.2001) (shed attached to carport and house was a dwelling). In Edwards, the court stated that the “intention of the dweller is considered to be material in the Court’s determination of whether a building is characterized as a dwelling pursuant to the burglary statute.” Id. The court then summarized previously decided cases on this issue, including:

Gillum v. State, 468 So.2d [856, 859 (Miss.1985)] (weekend home where owners spent every second or third weekend and had food, clothing and other necessities was a dwelling); Course v. State, 469 So.2d 80 (Miss.1985) (home was dwelling house even though victim lived in nursing home for the past few months where she kept personal possessions in the home and intended to return to the home if her health improved); Washington v. State, 753 So.2d 475 (Miss.Ct.App. 1999) (building that owner occupied for ten to fifteen weeks a year to visit family in Mississippi was a dwelling); Wilkerson v. State, 724 So.2d 1089 (Miss.Ct. App.1998) (house was dwelling where owner lived four months a year, received mail and kept personal items). But see Pool v. State, 764 So.2d 440 (Miss.2000) (farmhouse not considered dwelling where owner moved to an apartment four years prior to alleged burglary and there was no evidence that owner intended to return to the farm); Woods v. State, 186 Miss. 463, 191 So. 283 (1939) (newly erected home intended as a dwelling but not yet occupied is not considered a dwelling house).

Id.

¶ 10. Determining whether a building is a dwelling under the burglary statute is fact intensive, as illustrated in Edwards and subsequent cases. See Campbell v. State, 883 So.2d 115, 118-19 (¶¶ 3, 11) (Miss.Ct.App.2004) (“deer camp” “cabin” with broken windows was a dwelling where building was furnished, had running water, electricity, and was known to be suitable for human habitation).

¶ 11. In the present case, the record reflects that the cabin was fully furnished, contained frozen meat, common food items, functioning appliances, cooking supplies, eating utensils, clothing, numerous hunting accessories, and other living comforts and necessities. Of importance is that no evidence was presented about use of the cabin and intent of the owners because no such evidence was required in the wake of Young’s guilty plea. From the information in the record, and in light of the conclusions in Campbell, Gillum, Course, Washington, and Wilkerson, there is more than enough information to conclude that this cabin is a dwelling for purposes of the burglary of a dwelling statute.

2. Validity of Guilty Plea

¶ 12. Young concedes that he was “fully advised of all the aspects of the case, including the nature and elements of the charge, that the court advised [him] of the charges against him; and asked if [he] understood the charge.” Young’s sole argument that his plea was not valid relies upon the assumption that he was improperly charged with burglary of a dwelling.

¶ 13. The record supports that Young entered his plea “with sufficient awareness of the relevant circumstances and likely consequences.” Bradshaw v. Stumpf 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). Having already found that the cabin was a dwelling, there is no merit to this issue.

S. Effectiveness of Counsel

¶ 14. Young argues that his plea is the result of ineffective assistance of counsel. Young relies on case law to conclude that his attorney allowed him to bargain for an illegal sentence because Young was improperly charged with burglary of a dwelling. Baker v. Barbo, 177 F.3d 149 (C.A.3 N.J.1999). Other allegations include that Young would have insisted on going to trial had he not been surprised by the proceedings, had his counsel challenged the indictment, subpoenaed witnesses, and otherwise investigated the circumstances surrounding the charges. In essence, Young believes that his counsel failed to notice that Young was charged with a crime for which he could not be prosecuted, and that a jury would have returned a verdict of not guilty.

¶ 15. Claims of ineffective assistance of counsel in a post-conviction relief setting do not allow us to review some of the allegations Young makes, including whether certain statements offered in his support would be admissible as evidence at a trial. We review Young’s claim under a two-part inquiry of whether counsel’s performance was deficient, and whether that deficiency prejudiced Young. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The objective to this review is to determine whether the conduct of counsel “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. 2052.

¶ 16. With that objective in mind, we determine whether the fairness of the proceedings through which Young entered his guilty plea were undermined by errors of his counsel. We note, however, that Young did not have a constitutional right to errorless counsel. Branch v. State, 882 So.2d 36, 52(¶ 26) (Miss.2004). Our review is mindful that when “gauging counsel’s performance, we must make every effort ‘to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’ ” Id. at (¶ 27) (quoting Stringer v. State, 454 So.2d 468, 477 (Miss.1984)). We also consider the “totality of the circumstances” when deciding if counsel’s actions were deficient. Swington v. State, 742 So.2d 1106, 1114(¶ 22) (Miss.1999) (quoting McQuarter v. State, 574 So.2d 685, 687 (Miss.1990)).

¶ 17. The record reflects that Young faced prosecution of multiple felony charges as a recidivist criminal. Upon conviction, Young would have had to serve a mandatory maximum sentence and serve each day of that sentence. At the plea hearing, Young assured the trial judge that nobody had threatened him but that his plea was voluntary. Young also assured the trial judge that nobody had pressured or forced him to submit his plea, and that nobody told him he had to plead guilty. Young was advised that he was waiving certain rights, including the right to a jury trial.

¶ 18. When the trial judge asked Young if he was satisfied with the legal services and advice given to him by his attorney, Young responded, “yes, sir, very.” Young then communicated to the trial judge that he thought his -attorney properly advised him before pleading guilty and represented Young’s best interest in handling this case. Finally, the trial judge asked Young if he had any questions about what was happening prior to accepting Young’s plea. Young did not ask any question or raise any concern about the many allegations he now makes.

¶ 19. Young requested that he be allowed to delay beginning his sentence until after the weekend because his grandson’s first birthday was on Sunday. Young’s counsel stated:

Jimmy here did not know anything about an offer or the plea. I think he understood from talking with me that the case was set on Friday and probably would be continued to the next term of court. This morning I contacted his father, who came up and we talked, and then his father in the meantime was able to get in touch with Jimmy. I respectfully ask the Court to allow him to stay at home until Monday to be with his [grandson on his] grandson’s birthday and to get a few things, you know, ready before he leaves.

Young was allowed to report to the sheriff by 6:00 p.m. on the following Monday.

¶ 20. Young relies on this statement by his counsel to argue that he was surprised by the proceedings. This statement that Young may have misunderstood his attorney and found out about an offer to enter a guilty plea a short time prior to the court session does not mean that Young did not willingly accept such a lenient sentence rather than possibly subject himself to a mandatory quarter of a century in prison. In his brief, Young states that he “would have insisted [on] going to trial” if his attorney had done more to prepare his defense. Such a statement supports the conclusion that Young willingly accepted the offer to enter his guilty plea, having discussed the matter with his father, and concluding that the best option was to avoid a jury trial. We have no doubt that the trial judge would have granted a continuance or rejected Young’s plea had Young raised or even alluded to his present concerns when the trial judge asked him a litany of questions during the plea hearing.

¶ 21. The record demonstrates that the State had amounted a significant amount of evidence against Young. It is possible that there may have been a short time for Young to decide on entering a guilty plea, or that he was confused about the exact scheduling of the criminal proceedings against him. It is also possible that Young decided to enter his guilty plea when faced with the evidence of the State, and the severe consequence he would face upon conviction. Much of what Young states is properly characterized as mere allegations. Considering these allegations and the totality of the circumstances, we are persuaded that Young was not subject to constitutionally inadequate counsel.

¶ 22. Upon reviewing the record and addressing Young’s concerns we conclude that the trial court did not err in summarily dismissing Young’s motion for post-conviction relief.

¶ 23. THE JUDGMENT OF THE ITAWAMBA COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ITAWAMBA COUNTY.

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


source: Caselaw Access Project

author: CARLTON, J., for the Court.

license: Public Domain

text:
    LaDonna KING, Appellant v. PIKE COUNTY NATIONAL BANK and Ruth King, Appellees.
    No. 2005-CA-01098-COA.
    Court of Appeals of Mississippi.
    March 27, 2007.

      James A. Williams, Brookhaven, attorney for appellant.
    C. Ashley Atkinson, Mark R. Holmes, attorneys for appellees.
    Before KING, C.J., CHANDLER, ISHEE and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. LaDonna King was granted a favorable ruling by the Chancery Court of Walt-hall County dismissing a motion to hold her in contempt. On appeal, she challenges the reasoning of the chancellor. We dismiss the appeal as the issue raised is moot.

FACTS

112. The events leading to this appeal arise out of divorce proceedings between LaDonna King’s parents, David Earl King and Ruth King. LaDonna is married to Nathan Paul King. Nathan’s last name was formerly Dooley prior to his adoption by LaDonna’s father. Both LaDonna’s father, David, and her husband, Nathan, each executed a power of attorney to La-Donna due to their incarceration. King v. State, 857 So.2d 702 (Miss.2003) (affirming the conviction and sentence of David and Nathan). LaDonna conducted business on behalf of her father and her husband pursuant to the executed powers.

¶ 3. On April 28, 2004, an agreed temporary order was entered which included in part that “neither party shall dispose of any assets of the parties without the Court’s consent....” In September 2004, LaDonna obtained a loan from Pike County National Bank. The Bank filed a security interest in collateral pledged by LaDon-na which included several vehicles and a tractor.

¶ 4. LaDonna defaulted on the loan that she obtained from the Bank. The Bank filed a complaint in replevin against La-Donna and Ruth to recover the collateral on the loan. Ruth filed a motion to hold LaDonna in contempt of the agreed temporary order. An action by Ruth against David and LaDonna was consolidated with the action by the Bank against LaDonna and Ruth.

¶ 5. After a hearing, an order was entered on April 21, 2005, dismissing Ruth’s motion to hold LaDonna in contempt. The chancellor reasoned that LaDonna’s pledging the property as collateral was not a “disposal” of the items as prohibited under the agreed temporary order. The Bank was granted a judgment of possession to the six vehicles securing the loan. The chancellor awarded the tractor to Ruth because LaDonna and her husband had no interest in a tractor. LaDonna’s appeal has been assigned to this Court.

DISCUSSION

¶ 6. The only issue LaDonna presents on appeal is whether the chancellor committed reversible error in dismissing the motion for contempt. The exact language of the issue presented in LaDonna’s brief for which she seeks review is whether:

A Chancellor commits reversible error in denying a motion to dismiss a motion for contempt of a temporary order because the order which sought to restrain disposal of the property of the parties pending a final divorce hearing failed to specifically describe the personal property'and that personal property, before final hearing, had been encumbered by a security interest given by an adult daughter which consisted of motor vehicles titled in that daughter’s name and an untitled farm tractor proven to be owned by the daughter’s husband.

¶ 7. Since LaDonna received a favorable ruling from the chancellor, it seems that she is seeking review of whether the chancellor’s reasoning was erroneous even though she received a favorable decision. Her argument is that the agreed temporary order was not specific enough to allow it to be enforced against her in a contempt action. LaDonna properly cites case law for the proposition that a high degree of specificity is required in a court order before a person can be found in contempt of that order. Moses v. Moses, 879 So.2d 1036, 1040(¶20) (Miss.2002); Showers v. Norwood, 914 So.2d 758, 761(¶ 12) (Miss. Ct.App.2005). Regardless of LaDonna’s motive in challenging the favorable ruling she received from the chancellor, the issue on appeal confines our review to whether the chancellor erred in dismissing the motion for contempt.

¶ 8. Ruth responds that the issue is moot having been previously decided in favor of LaDonna, and that damages should be awarded because the appeal is frivolous. M.R.A.P. 38 (authorizing damages for a frivolous appeal). Pike County National Bank adopts the position of Ruth and is taking no further action in this matter.

¶ 9. The standard of review for ' matters of contempt is to proceed ab initio. Moses, 879 So.2d at 1039(¶ 11) (quoting Wing v. Wing, 549 So.2d 944, 946-47 (Miss.1989)). Insufficient specificity in an order is a matter typically reviewed where a determination must be made on whether or not a judgment was violated. Id. Part of that inquiry is whether the judgment was specific enough to be carried out. Id. (citing Ladner v. Ladner, 206 So.2d 620, 623 (Miss.1968)).

¶ 10. In the situation presented, the chancellor found that LaDonna was not in contempt of court. The relief LaDonna now seeks would leave her in the same position. This issue is therefore moot. In light of LaDonna’s argument that the order lacked the required specificity, the chancellor could have very well been in error had he held her in contempt based upon such an unspecific temporary order. The chancellor did not err in his decision. Although the issue is moot and without merit we decline to declare it frivolous.

¶ 11. THIS APPEAL IS DISMISSED AS MOOT. 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.


author: ISHEE, J., for the Court.

text:
    Anthony SWIFT, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00322-COA.
    Court of Appeals of Mississippi.
    March 27, 2007.
    Anthony Swift, Appellant, pro se.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. Anthony Swift appeals from the denial of a motion for reconsideration, which he filed in the Circuit Court of Clay County after having his probation revoked. Because there is no right to appeal from a revocation of probation, we dismiss the appeal without prejudice.

FACTS

¶ 2. On April 8, 2005, Swift, a convicted felon on probation, was indicted by a Clay County grand jury for three counts of the sale of cocaine. After conducting a revocation hearing, on November 22, 2005, the Circuit Court of Clay revoked Swift’s probation. On December 8, 2005, Swift filed a pro se motion for reconsideration, which the circuit court treated as a motion for post-conviction relief and denied on January 20, 2006. Aggrieved by the court’s decision, Swift appeals pro se. He asserts the following issues for this Court’s review:

I. Whether the trial court erred in revoking Swift’s probation after it was proven that law enforcement agents violated their protocol by not searching the confidential informant before the investigation.
II. Whether the trial court erred in revoking Swift’s probation during a vacation term of court when the trial court had previously ruled that no revocation hearing would be conducted until after trial was held in the matter.
III. Whether Swift was denied due process of law when the trial court revoked his probation without issuing findings of fact as to evidence relied on and reasons for revoking probation.
IV. Whether the State should have been allowed to use a court order to allow Brenda Weaver to work as a confidential informant in violation of the Anti-Peonage Act of 1864.
V. Whether the trial court erred when it allowed the State to amend the indictment from sale of cocaine to possession of cocaine in violation of article 3, section 27 of the Mississippi Constitution.

ISSUES AND ANALYSIS

¶ 3. Although the circuit court referred to Swift’s motion for reconsideration as a post-conviction matter, this is not an appeal from the denial of a motion for post-conviction relief. Swift’s motion for reconsideration was labeled as a motion for reconsideration and requested that the circuit court reconsider his probation revocation; his motion made no mention of post-conviction relief. Thus, Swift is now appealing from the denial of a motion for reconsideration, not the denial of post-conviction relief.

¶ 4. An order revoking probation is not appealable; instead, the proper venue for complaints about probation revocation is a motion for post-conviction relief. Massingille v. State, 878 So.2d 252, 254(¶ 7) (Miss.Ct.App.2004) (citing Beasley v. State, 795 So.2d 539, 540(¶6) (Miss.2001)). Although we are “reluctant to dismiss a proceeding because one seeks the wrong remedy; and a mere misnomer of the procedure should ordinarily not result in a dismissal ... the attempt to appeal an unappealable order is a total departure from the orderly administration of justice and cannot and should not be approved.” Beasley, 795 So.2d at 540(¶6) (quoting Pipkin v. State, 292 So.2d 181, 182 (Miss.1974)). Because we find that Swift attempts to appeal an unappealable order, his appeal is dismissed without prejudice.

¶ 5. THE APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY IS DISMISSED WITHOUT PREJUDICE. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

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


author: LEE, P.J., for the Court.

text:
    Decarlos Lovern GRAHAM, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CA-02367-COA.
    Court of Appeals of Mississippi.
    March 27, 2007.

      Alvin Chase, attorney for appellant.
    Office of the Attorney General, by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J., for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On August 16, 2002, Decarlos Graham pled guilty in the Harrison County Circuit Court to armed robbery and was sentenced to twenty years suspended and placed on three years post-release supervision. At the time, three other charges, including murder, armed robbery and robbery, were passed to the file. On March 5, 2003, Graham was arrested for possession of cocaine with intent to deliver. A petition to revoke Graham’s probation was filed two days later. Graham waived his right to a preliminary probation revocation hearing.

¶ 2. During the revocation hearing on April 14, 2003, Graham stated that his mother was supposed to be hiring an attorney to represent him. The trial judge paused the hearing to contact the attorney Graham named but the attorney advised the court that no one had contacted her to represent Graham. The trial judge then went forward with the hearing. A narcotics officer testified that, while watching a drug sale, he witnessed Graham throw a plastic baggy full of an off-white rock substance to the ground. Graham had been leaning into a car window and attempted to run when the policemen identified themselves. The substance was field tested and the result was positive for cocaine. The narcotics officer recognized Graham, who was wearing a red t-shirt with “Harrison County Jail Inmate” on it. Another eyewitness, who was in the abovementioned car, gave a statement to the police stating that Graham participated in the cocaine sale. The trial judge found that Graham had violated his probation conditions and ordered him to serve his sentence in the custody of the Mississippi Department of Corrections.

¶ 3. On August 15, 2005, Graham filed a motion for post-conviction relief. The trial court denied Graham’s motion for relief, finding that there was sufficient evidence to conclude that Graham had committed the offense. Graham now appeals to this Court, asserting the following issue which we cite verbatim:

Whether the circuit judge erred in denying Graham’s motion for post-conviction relief without reviewing the transcript of the revocation hearing or conducting a new hearing since the judge acting on the petition for post-conviction relief was a different judge than the one who heard the evidence at the revocation hearing and there was new evidence available at the time of the petition for post-conviction relief that was not available at the revocation hearing.

STANDARD OF REVIEW

¶4. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶6) (Miss.1999).

DISCUSSION

¶ 5. Although Graham’s statement of his sole issue on appeal claims error by the trial judge in failing to conduct a hearing on the matter because there was new evidence available, his argument mainly discusses whether he was entitled to have an attorney present during the revocation hearing. It is well settled that a defendant has no automatic right to counsel at probation revocation hearings. Baldwin v. State, 891 So.2d 274, 277(¶ 12) (Miss.Ct.App.2004). A probationer has the right to appointed counsel at a revocation hearing when the issues are complex or otherwise difficult to develop. Riely v. State, 562 So.2d 1206, 1209 (Miss.1990). In this case, the issues were neither complex nor difficult to develop.

¶ 6. Graham also states that having an attorney present would have uncovered the reason why the grand jury did not indict him on the possession with intent to deliver charge. However, “it is not necessary that a defendant be convicted of crimes charged to suffer revocation of his probation.” McClinton v. State, 799 So.2d 123, 128(¶ 9) (Miss.Ct.App.2001). Probation may be revoked upon a showing that a defendant “more likely than not” violated the terms of probation. Id. The evidence as stated supra showed that Graham more likely than not violated his probation. The narcotics officer witnessed the drug sale, saw Graham drop the plastic baggy which field tested positive for cocaine, and a passenger in the car gave a statement to the officer identifying Graham as the person involved in the drug sale. The trial judge found sufficient evidence to conclude that Graham did in fact commit the offense. The trial judge also found that “[sjubse-quent action or inaction by the Grand Jury does not bar the revocation proceeding, nor does it supercede the Court’s ruling.” We can find no error on the part of the trial judge in ruling so.

¶ 7. Graham would have this Court order trial judges, who did not preside over the initial revocation hearing, to grant eviden-tiary hearings every time they receive motions for post-conviction relief which raise issues concerning the revocation hearing. We decline to do so.

¶ 8. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: CHANDLER, J., for the Court.

text:
    Herbert G. ROLES, III, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00362-COA.
    Court of Appeals of Mississippi.
    March 27, 2007.

      Harry B. Ward, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J., for the Court.

¶ 1. Herbert G. “Tinker” Roles, III, was convicted of the statutory rape of a thirteen-year-old girl in the Circuit Court of Hancock County, Mississippi, and sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections. After being denied motions for a directed verdict and a new trial, Roles appealed the judgment, raising the following issues, which we quote verbatim:

I. THE TRIAL JUDGE ERRED IN NOT SUPPRESSING THE PANTIES WHICH WERE RETRIEVED WITHOUT A SEARCH WARRANT.
II. THE STATE FAILED TO PROVE THE ELEMENT OF SEXUAL INTERCOURSE.
III. THE TRIAL JUDGE ERRED IN REFUSING A DIRECTED VERDICT FOR THE DEFENDANT.
IV. A BATSON HEARING SHOULD HAVE BEEN CONDUCTED.
¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Because of the nature of the crime, we do not use the victim’s name, her family’s, or the names of the victim’s underage friends. Herbert G. Roles was a police officer with the Bay St. Louis police department. K.M. was a thirteen-year-old girl at the time of the alleged incidents; Roles was thirty-four years old. A former co-worker of KM.’s mother, Roles was a family friend and would frequently visit K.M.’s home.

¶ 4. On March 25, 2002, one of K.M.’s coworkers told KM.’s mother, M.M., that Roles had been engaging in sexual activity with K.M. M.M. immediately drove to KM.’s school and confronted her with the allegations. K.M. confirmed that she had sexual relations with Roles. M.M. then contacted the police and school officials, whereby K.M. proceeded to give two statements, one on March 25 and another on March 26.

¶ 5. K.M. stated that three separate incidents with Roles occurred. The first, on February 1, 2002, allegedly took place when KM.’s mother was out of town, working at a Mardi Gras parade in Louisiana. K.M., who was supposed to be staying with her aunt, had gone back home for the evening to clean her room. Roles called the house to speak with M.M., was told that the parents were out of town, and thereafter arrived at the home by himself. K.M. claims that Roles took her into a bedroom, undressed her, and had sexual intercourse with her.

¶ 6. The second incident allegedly occurred on February 18, 2002, when Roles was visiting KM.’s home. K.M. had recently purchased a car from her work earnings, although she was not old enough to drive legally. K.M. offered Roles a ride around the block to show him her new car, wherein she claims he penetrated her with his fingers while in the vehicle.

¶7. On March 22, 2002, the third incident took place when Roles met K.M. at a movie theater. K.M. was at the theater to watch a movie with her friend, P.B., and P.B.’s boyfriend, but K.M. saw Roles in the parking lot and decided to go for a ride with him alone in his car. The two drove to a Welcome Center rest stop on 1-10 and engaged in sexual intercourse in the vehicle. During this encounter, KM. gave Roles a pair of her orange underpants, which he later put in a black bag in the back of his car.

¶ 8. After KM. gave her initial statements concerning the February 18 and March 22 incidents, a warrant was issued for Roles’s arrest. Officer Tom Burleson, who knew Roles, called Roles and asked him to come to the Bay St. Louis Police Station for questioning. During the interview, Burleson testified that Roles initially admitted to holding hands and kissing K.M., but after a question regarding whether “one thing led to another,” Roles stated affirmatively that he had engaged in sexual relations with KM. When asked if K.M. could be pregnant, Roles stated that was not possible because he had ejaculated on his stomach and her legs. At some point during the interview, Officer Matt Carver searched a black bag found in Roles’s vehicle and found KM.’s orange underpants.

¶ 9. The next day on March 26, 2002, KM. went back to the police station with her aunt and recounted the allegations of the February 1 incident at her home. K.M. also spoke with Officer Burleson by phone that day and told Burleson that the underpants belonged to her.

¶ 10. Roles was indicted on July 18, 2002, in Hancock County, Mississippi, for two counts of statutory rape pursuant to Mississippi- Code Annotated Section 97-3-65(l)(b) (Rev.2006), along with sexual battery pursuant to Section 97 — 3—95(l)(d).

¶ 11. On February 21, 2003, Roles was found not guilty of Count I of statutory rape and Count III of sexual battery, but guilty on Count II of statutory rape, arising from the March 22, 2002 incident. Roles was sentenced to twenty years in the custody of the Mississippi Department of Corrections. Roles filed a motion for a directed verdict, and in the alternative, a motion for a new trial. Both motions were denied.

LAW AND ANALYSIS

I. THE TRIAL JUDGE ERRED IN NOT SUPPRESSING THE PANTIES WHICH WERE RETRIEVED WITHOUT A SEARCH WARRANT.

¶ 12. Roles first argues that K.M.’s undergarments were illegally obtained without a search warrant and, therefore, should not have been admitted into evidence. However, Roles admits that the record is “void” as to how the undergarments were obtained by law enforcement and that the record is also “void” of any specific motion to suppress the evidence. No objection was made at trial to the admission of the undergarments as evidence.

¶ 13. Because Roles did not make a timely objection to the admission of the undergarments as evidence, he is procedurally barred from appealing this issue. “Failure to make a contemporaneous objection waives an issue for purposes of appeal.” Spicer v. State, 921 So.2d 292, 305(¶ 22) (Miss.2006). Therefore, this issue is without merit.

II. THE STATE FAILED TO PROVE THE ELEMENT OF SEXUAL INTERCOURSE.

¶ 14. Roles contends that the State failed to prove the essential element of “sexual intercourse,” because K.M.’s testimony at trial differed from the statements she gave to a police investigator, and medical evidence was not used to corroborate her version of events. Essentially, Roles attacks KM.’s credibility as a witness.

¶ 15. It is well established that “the jury is the judge of the credibility of a witness.” Price v. State, 898 So.2d 641, 652(¶25) (Miss.2005). Matters regarding the weight and credibility of the evidence are to be resolved by the jury, and we will not set aside a guilty verdict unless the evidence is the result of prejudice, bias or fraud. Id. Initially, K.M. told a police investigator that she had sex with Roles in the passenger seat of his car in two different positions. At trial, K.M. testified that she had sex with Roles while sitting on top, facing him. While KM.’s trial testimony may have been inconsistent.with her initial statements to the police, her credibility was a matter for the jury to decide.

¶ 16. Moreover, the State offered the necessary evidence to meet its burden of proof for “sexual intercourse.” Pursuant to Section 97-3-65(l)(b), the crime of statutory rape occurs when, “A person of any age has sexual intercourse with a child who: (i) Is under the age of fourteen (14) years; (ii) Is twenty-four (24) or more months younger than the person; and (iii) Is not the person’s spouse.” The State established the ages of the victim and the defendant through the testimony of K.M. and Roles. K.M. was thirteen years old and Roles was thirty-four years old. Both parties stipulated that they were not married at the time of the alleged incidents.

¶ 17. The State also established through K.M.’s testimony that she. and Roles engaged in the act of sexual intercourse. As defined by the statute, “sexual intercourse” means a “joining of the sexual organs of a male and female human being in which the penis of the male is inserted into the vagina of the female.” Miss.Code Ann. § 97-3-65(6). The State must prove that there was “some penetration” of the victim’s vagina by the defendant’s penis, however slight the penetration may be. Wilson v. State, 606 So.2d 598, 599 (Miss.1992). For victims under the age of fourteen, if there is evidence of laceration and/or tearing of the child’s private parts, then proof of penetration is not necessary. Id. at 600. The court in Wilson further articulated that actual medical evidence of penetration is not necessary and that proof of penetration may be offered by witness testimony or by circumstantial evidence. Id.

¶ 18. K.M. testified that she could feel Roles’s penis inside of her and when she told him she did not want to get pregnant, he said that he knew what he was doing. K.M. also stated that when Roles was near completion of the act, he instructed K.M. to “get off of him,” and she witnessed him ejaculate on his shirt. Officers Burleson and Carver testified that Roles admitted to having sexual intercourse with KM. Burle-son stated that when he asked Roles if K.M. could be pregnant, Roles responded in the negative, saying that he ejaculated on his stomach and KM.’s legs. KM.’s friend, P.B., further corroborated K.M.’s testimony by stating that she witnessed KM. get into Roles’s car at the movie theater on the night in question and also saw her return to the theater parking lot approximately one hour later.

¶ 19. We find that sufficient testimony was presented to the jury to determine the question of whether “sexual intercourse” had occurred. The record does not indicate any prejudice, bias or fraud in regards to the evidence offered. Therefore, this issue is without merit.

III. THE TRIAL JUDGE ERRED IN REFUSING A DIRECTED VERDICT FOR THE DEFENDANT.

¶20. Roles contends that the lower court erred in failing to grant his motion for a directed verdict at the close of the State’s case because the State failed to prove all of the elements of statutory rape. In the alternative, Roles maintains that the court erred in not granting his motion for a new trial at the conclusion of the case based on these same grounds.

A. Sufficiency of the Evidence

¶ 21. Roles argues that the State failed to present credible evidence from which a reasonable and fair-minded juror could find beyond a reasonable doubt that he committed statutory rape. This Court reviews a motion for directed verdict under an abuse of discretion standard of review. Morgan v. State, 703 So.2d 832, 835 (Miss.1997). A motion for directed verdict challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). When reviewing a trial court’s denial of a motion for directed verdict, we consider the evidence in the light most favorable to the prosecution and the State must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005). Therefore, it is our job to determine whether any rational trier of fact could have found the essential elements of .the crime beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005).

¶22. As stated above, statutory rape occurs when someone of any age has sexual intercourse with a child who is under the age of fourteen and is not the person’s spouse. Miss.Code Ann. § 97 — 3—65(l)(b). Proof involving “some penetration” of the victim’s vagina by the defendant’s penis must be established. Wilson, 606 So.2d at 599. KM.’s testimony, coupled with testimony from Officers Burleson and Carver, and K.M.’s friend, P.B., provided ample evidence for the jury to determine whether the statutory requirements had been met. K.M. specifically stated that her private parts had been penetrated. The officers further testified that Roles admitted to having sexual relations with KM. Therefore, this issue is without merit.

B. Weight of the Evidence

¶ 23. Roles argues that he should have been granted a new trial because the State presented no credible evidence from which a reasonable and fair-minded juror could find him guilty of statutory rape beyond a reasonable doubt. We find this argument to be without merit.

¶ 24. When reviewing a denial of a motion for a new trial, this Court will only disturb a verdict when it 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). On a motion for new trial, the court sits as a “thirteenth juror,” with the evidence being weighed in the light most favorable to the verdict. Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000). Granting a new trial should be invoked only in “exceptional cases in which the evidence preponderates heavily against the verdict.” Id.

¶ 25. The evidence consists of (1) testimony from the victim that the accused’s penis penetrated her vagina, (2) testimony from the victim’s mother that K.M. admitted to having sexual relations with Roles, (3) testimony from two officers regarding Roles’s confession, (4) testimony from the victim’s friend who witnessed K.M. in Roles’s car on the night in question, (5) K.M.’s undergarments found in Roles’s car, and (6) letters K.M. wrote to Roles.

Roles was the only person to testify on his behalf, in which he denied having sexual relations with KM. Sitting as the “thirteenth juror,” we find that no new trial is warranted. The jury’s verdict is consistent with the weight of the evidence and we cannot say that the verdict resulted in an unconscionable justice. The trial court did not abuse its discretion in refusing to grant a new trial. Therefore, this issue is also without merit.

IV. A BATSON HEARING SHOULD HAVE BEEN CONDUCTED.

¶ 26. In his final claim Roles, an African-American, states that a Batson challenge should have been raised when the State used three peremptory challenges to strike prospective jurors. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State accepted one black male to the jury, but struck another black male, one black female and one female of undetermined race. Each of the stricken jurors stated in voir dire that they either knew Roles personally or knew of him through a friend. The third woman, whose race is unclear, further stated that she heard about the case from her friend who knew Roles personally.

¶ 27. When the State raised peremptory challenges for these jurors, the court asked Roles’s attorney if he would like to raise a Batson challenge. Roles’s attorney replied, “No, sir.” Roles maintains that his attorney should have raised the Batson issue at trial. We will not reverse factual findings relating to a Batson challenge unless they are clearly erroneous. Johnson v. State, 792 So.2d 253, 257(¶ 10) (Miss.2001). Additionally, this issue is proeedurally barred by Roles’s failure to make a timely objection at trial. Russell v. State, 607 So.2d 1107, 1117 (Miss.1992).

¶ 28. A defendant seeking to establish a Batson violation must demonstrate (1) that he is a member of a “cognizable racial group,” (2) that the prosecutor has exercised peremptory challenges toward the elimination of veniremen of his race, and (3) that the facts and circumstances infer that the prosecutor used his peremptory challenges for the purpose of striking minorities. Lockett v. State, 517 So.2d 1346, 1349 (Miss.1987). Once the prima facie showing is made, the prosecutor must offer “ ‘a clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges.” Id. (citing Batson, 476 U.S. at 98, n. 20, 106 S.Ct. 1712).

¶29. Roles failed to raise a Batson challenge at trial. The trial court therefore did not have the opportunity to make any findings necessary to preserve this issue for appellate review. Accordingly, Roles’s Batson challenge is without merit.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY OF CONVICTION OF COUNT II OF STATUTORY RAPE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HANCOCK COUNTY.

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


author: KING, C.J., for the Court.

text:
    Mary Beth BROOME, Appellant v. CITY OF COLUMBIA, Mississippi, Appellee.
    No. 2005-CA-00605-COA.
    Court of Appeals of Mississippi.
    March 27, 2007.

      S. Christopher Farris, attorney for appellant.
    Lawrence Elder Hahn, William C. Cal-lender, Columbia, attorneys for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

KING, C.J., for the Court.

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted in lieu thereof. Following a bench trial, Mary Beth Broome appeals the trial judge’s order holding that the City of Columbia was entitled to immunity under Mississippi Code Annotated Section 11-46-9 and, therefore, was not liable for injuries that Broome sustained when a suspect being pursued by a Columbia Police Department officer struck her car. The sole issue before this Court on appeal is whether the trial judge’s findings are supported by substantial evidence and are consistent with Mississippi’s current case law.

¶ 2. Although this Court disagrees with the reasoning employed by the trial court to reach the conclusion that the pursuit was justified, for the reasons stated herein, the judgment is affirmed.

FACTS

¶ 3. On June 21, 2003, Johnny Ray Sims was involved in a domestic dispute with his girlfriend, Angeline Robinson. Both Robinson and her landlord, Vance Berry, signed affidavits attesting to the altercation. The Columbia Police Department then issued two misdemeanor warrants for Sims — one for domestic assault and one for trespassing.

¶ 4. At approximately 11:25 a.m. on Saturday, September 13, 2003, Sergeant Pearlie Hendricks of the Columbia Police Department spotted Sims smoking a cigarette outside the Auto Zone in Columbia, Mississippi. As Hendricks testified during the bench trial, she had known Sims his entire life and previously had arrested him; therefore, she recognized him and recalled the outstanding warrants. Hendricks contacted the dispatcher to confirm that the warrants were still outstanding and then contacted her supervisor for backup. As Hendricks passed Auto Zone a second time, she noted that Sims was no longer outside. Believing that he had entered the store, she pulled into the parking lot next to a brown Ford.

¶ 5. As Hendricks exited her car, she glanced into the brown Ford and noticed Robinson in the passenger seat. She also noted that Sims was in the driver’s seat, attempting to escape her notice by leaning forward. Hendricks asked Robinson to roll down the window, but the window mechanism was broken, so Robinson opened the passenger door instead. When Robinson opened the door slightly, Hendricks told Sims that she needed to talk to him. While attempting to speak to Sims, Hendricks noticed an open alcoholic beverage container in the car near Sims. Sims then told Robinson to close the door, which she did, and Sims backed out into the street and drove off, tires squealing.

¶ 6. Hendricks got back into her car and pursued Sims. Hendricks testified that she engaged in a “slack pursuit,” in which she maintained a distance of approximately one-quarter of a mile between her patrol car and Sims’ car. Hendricks further testified that she maintained a top speed of approximately fifty miles per hour in a thirty-five mile per hour zone as she pursued Sims with her lights and siren on. The chase ended less than two minutes and one mile after it began when Sims ran a red light and struck two cars and a tree. With his vehicle apparently disabled, Sims fled on foot. Hendricks followed suit. Sims was detained, ‘ arrésted, and charged with a number of infractions, including driving with a suspended license due to a prior DUI conviction.

¶ 7. Broome was the driver of the first vehicle that Sims struck when he ran the red light. As a result of the accident, Broome suffered a ruptured disk in her neck that required surgery. Broome filed suit against the City of Columbia, alleging that the City, through its police officers, was negligent both in choosing to pursue Sims and in continuing the pursuit through heavily traveled areas of Columbia at an increased risk to the public.

¶ 8. The trial court held a bench trial pursuant to the Mississippi Tort Claim Act. See Miss.Code Ann. § 11-46-13(1) (Rev.2004). The trial court heard evidence on the specifics of the events leading up to the pursuit. The trial court heard further evidence on the conditions that day (a light rain), the amount of traffic on the roads (light to moderate), and the involvement of Hendricks’ supervisor in the pursuit (he passed Sims going in the opposite direction near the end of the pursuit). The trial court also had the opportunity to view the videotape of the pursuit, the recording of which was triggered by Hendricks’ use of her light and sirens, although the tape did not activate immediately and contained no sound. Finally, the court heard expert testimony on the issue of reckless disregard and whether Hendricks’ decision to pursue Sims violated the standard for sovereign immunity set forth in Mississippi Code Annotated Section ll-46-9(l)(c).

¶ 9. The trial court held that, upon review of the pursuit policy and applicable case law, neither Hendricks nor any other city employee involved in the chase acted in reckless disregard for the safety of innocent third parties. The trial court also found that Hendricks’ pursuit was appropriate and lawful under the circumstances and was compliant with the City’s pursuit policy. Accordingly, the City was entitled to sovereign immunity and was exempt from liability under Mississippi Code Annotated Section ll-46-9(l)(c).

STANDARD OF REVIEW

¶ 10. A trial judge’s findings of fact following a bench trial are subject to the same deference as a chancellor’s findings of fact and will not be disturbed on appeal as long as those findings are supported by substantial, credible and reasonable evidence. See, e.g., City of Jackson v. Brister, 838 So.2d 274, 277-78(¶ 13) (Miss.2003). Issues of law, however, are reviewed under a de novo standard. Id.

ANALYSIS

¶11.' Mississippi Code Annotated Section 11^6-9(l)(c) provides as follows:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: ...
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.

Miss.Code Ann. § ll-46-9(l)(c) (2002) (emphasis added). “Reckless disregard” is defined as “more than mere negligence but less than an intentional act.” Brister; 838 So.2d at 280(¶ 23). This standard requires a finding that the employee or entity in question acted with “an appreciation of the unreasonable risk of danger involved coupled with a conscious indifference to the consequences that were certain to follow.” Davis v. Latch, 873 So.2d 1059, 1062(¶ 15) (Miss.Ct.App.2004). Reckless disregard “embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.” Turner v. City of Ruleville, 735 So.2d 226, 230(¶ 18) (Miss.1999) (citation omitted).

¶ 12. The sole issue raised on appeal is whether the trial court’s findings are supported by substantial evidence and whether the decision comports with precedent set by Mississippi’s appellate courts. The trial court applied its findings of fact to the law set forth in a line of Mississippi police pursuit cases — specifically City of Jackson v. Brister, 838 So.2d 274 (Miss.2003) and Mississippi Dep’t. of Pub. Safety v. Durn, 861 So.2d 990 (Miss.2003). While the trial court did not enumerate the factors listed in both Brister and Dum, the court did, nevertheless, evaluate the types of evidence that those cases found relevant to a determination of reckless disregard.

¶ 13. While the Court’s review of the trial transcript and other documents that form the record on appeal raises some questions with regard to the trial court’s conclusion that pursuing Sims to serve the warrants did not constitute reckless disregard, the Court holds, for reasons other than those relied upon by the trial court, that the trial court’s ruling should be affirmed. See Valley Forge Ins. Co. v. Strickland, 620 So.2d 535, 539 (Miss.l993)(holding that “[w]here a lower court reaches the proper result, albeit through no fault of its own, we will not reverse.”).

¶ 14. Both Brister and Dum list the following factors to be considered “to determine whether an officer acted in reckless disregard of others while pursuing a third party”: (1) length of chase; (2) type of neighborhood (commercial, residential, etc.); (3) characteristics of the street (topography, visibility, etc.); (4) the presence of vehicular or pedestrian traffic; (5) weather conditions and visibility; and (6) the seriousness of the offense for which the police are pursuing the vehicle. Dum, 861 So.2d at 995(¶ 12) (citing Brister, 838 So.2d at 280(¶ 22)). The trial court, in its opinion, relied in large part on the factual distinctions between Brister and the present case and found that the record supported a finding that the City of Columbia was entitled to sovereign immunity. Specifically, the trial .court cited the following factors: Hendricks’ experience on the force, Hendricks’ familiarity with the pursuit route, the mix of commercial and single family residential properties on the pursuit route (as opposed to a largely residential area), the parameters of the City’s pursuit policy, Hendricks’ ability to maintain control of her vehicle, the lack of traffic, Hendricks’ belief that Sims was under the influence of alcohol (based on her observation of an open container in the car), and the existence of the outstanding domestic violence warrant that prompted the pursuit.

¶ 15. In its review of the record, the Court finds that Hendricks’ decision to pursue Sims to serve the outstanding misdemeanor warrants indicates poor judgment on her part. Hendricks testified that, although she intended to place Sims under arrest, she intended to request that he follow her to the station to “take care of the warrants” rather than handcuffing him and escorting him to the station. Additionally, the victim of his crime and the only person to whom he apparently was a danger, Robinson, was a passenger in the car. Hendricks testified that upon approaching the Ford, she realized that Sims and Robinson had reconciled. Without evidence of the open container and suspicion that Sims was driving under the influence, the Court’s review of the Brister factors may well have resulted in a finding that Hendricks and the Columbia Police Department acted in reckless disregard in pursuing Sims to serve the outstanding misdemeanor warrants.

¶ 16. The fact, however, that she saw an open , container and had a reasonable suspicion that Sims was driving under the influence is sufficient to justify her decision to pursue Sims. Hendricks testified that she saw the open container in the car in close proximity to Sims during her initial contact with him at Auto Zone. She further testified that she had known Sims his entire life and that Sims was drunk when she arrested him on a previous occasion. She also testified that'she suspected he would fail a Breathalyzer test. Finally, the record indicates that Sims was, in fact, charged with driving with a suspended license due to a prior DUI conviction.

¶ 17. In Turner v. City of Ruleville, 735 So.2d 226, 229 (Miss.1999), a motorist injured in an accident involving a drunk driver sued the City of Ruleville alleging that the City was negligent. Specifically, the complainant alleged that an officer stopped the drunk driver for erratic driving and then permitted him to continue operating the vehicle, knowing that the driver was intoxicated. Shortly thereafter, the driver struck the complainant. The City asserted a sovereign immunity defense, and the trial court granted the City’s motion to dismiss. The Supreme Court of Mississippi reversed the order granting the motion to dismiss and held that the allegations of the complaint, if true, were sufficient to constitute reckless disregard. Turner, 735 So.2d at 230 (¶¶ 18-20).

¶ 18. One of the factors to be considered in ascertaining whether an officer acted in reckless disregard in pursuing a suspect is “the seriousness of the offense for which the police are pursuing the vehicle.” Brister, 838 So.2d at 280(¶ 22). Turner supports the proposition that an officer who releases an impaired driver shows a reckless disregard for the safety of others. Accordingly, Hendricks acted properly in attempting to stop Sims, as he was driving recklessly and she suspected him of DUI.

¶ 19. Having found that Hendricks did not act in reckless disregard in her decision to pursue Sims, the Court reviews the trial court’s remaining findings of fact under the “substantial, credible, and reasonable” standard and the trial court’s application of the remaining Brister factors under the de novo standard. The Court finds no reason to disturb the trial court’s conclusions with regard to the length of the chase, the characteristics of the neighborhood, the presence of vehicular and pedestrian traffic, and the visibility of both Hendricks and Sims. Those findings are supported by substantial evidence in the record. Further, applying those facts to the Brister factors, the Court holds that the trial court properly determined that the pursuit itself and Hendricks’ behavior during the pursuit did not constitute reckless disregard. Accordingly, the trial court properly held that the City of Columbia was entitled to sovereign immunity under Mississippi Code Annotated Section 11 — 46—9(l)(c).

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

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

      . According to Hendricks’ testimony, police procedure generally required that an officer wait for backup before making contact with a suspect.

      . The photographic exhibits from the trial indicate that the "parking lot" was not a typical parking lot. Rather, the parking lot consisted of a row of parking spaces directly in front of the store and adjacent to the street. Accordingly, when Sims backed up to leave, he backed directly into the street.