author: DICKINSON, Justice,

text:
    Oliver David CHISOLM, Jr., Oliver David Chisolm, III, Carolyn Elizabeth Chisolm and Kayla Louisa Chisolm v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION. Linda Pugh v. Mississippi Department of Transportation.
    Nos. 2003-CT-02526-SCT, 2004-CT-00440-SCT.
    Supreme Court of Mississippi.
    Nov. 9, 2006.

      David M. Sessums, Vicksburg, attorney for appellant.
    G. Kenner Ellis, Greenville, attorney for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Justice,

for the Court.

¶ 1. In these consolidated suits, the trial courts granted summary judgment to the Mississippi Department of Transportation (“MDOT”), finding that it could not be held liable for the negligence of its independent contractor, Great River Stone Company (“Great River”), and also that it qualified for immunity under the Mississippi Tort Claims Act, Miss.Code Ann. § 11-46-9(1) (Rev.2002) (“MTCA”). The plaintiffs appealed, and we referred the matter to the Court of Appeals, which held that Great River was MDOT’s independent contractor and that MDOT was indeed immune from liability under two of the MTCA subsections relied upon by the trial courts. However, because it also found MDOT did not qualify for immunity under a third provision, the Court of Appeals reversed and remanded the case for trial. The dispositive question in this ease is whether the plaintiffs can overcome the independent contractor relationship between Great River and MDOT in order to hold MDOT liable for their injuries.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. We begin by borrowing the excellent statement of facts set forth by the Court of Appeals:

The night of April 11, 1999, Priscilla Chisolm drove down Highway 61 South in Sharkey County, Mississippi, accompanied by Linda Pugh. At that time, Great River Stone Company (Great River) was under contract with the Mississippi Department of Transportation to replace a bridge with an underground box culvert. According to Pugh, as the women approached the construction area, Pugh heard a ‘bump’ and then heard Chisolm scream, ‘I’ve got it.’ The right front wheel of the vehicle left the shoulder of the roadway and, as Chisolm attempted to correct the vehicle, the vehicle began a counterclockwise spin. The vehicle flipped, ejecting Chisolm from the driver’s seat. Pugh, who was not thrown from the vehicle, testified that she heard Chisolm screaming for help in the darkness. Chisolm did not survive long after the accident and, while Pugh survived, she suffered severe, permanent disabling injuries.
The day after the accident, members of the Pugh family visited the accident scene and found a twelve to eighteen inch bolt lying next to the road. The bolt matched an indentation in the road indicating that the bolt lay partially on the road. According to Pugh, the bolt was found in the area where she recalled hearing the bump, prior to the vehicle spinning out of control.
In October of 1999, Chisolm’s heirs filed suit against MDOT and Great River. That month Pugh also filed suit against MDOT and Great River. Both suits alleged that MDOT and Great River were negligent in placing traffic control barrels, failing to provide warning lights, warning signs, barricades, and guardrails, and numerous other allegations of negligence.... On December 18, 2000, MDOT moved for summary judgment in the Chisolm case, to which the Chisolm heirs filed a timely response. On March 28, 2002, the trial court granted MDOT’s motion, finding that Great River was an independent contractor and that MDOT was entitled to sovereign immunity under Mississippi Code Annotated Section 11^46-9(p)(v) and (w) (Rev.2002). It is from this ruling that Chisolm’s heirs now appeal.
On February 20, 2002, MDOT moved [for] summary judgment against Pugh[, which the trial court granted].... On May 19, 2003, the trial court granted Pugh permission to seek an interlocutory appeal; however, the Supreme Court denied the petition on February 25, 2004. Pugh filed a motion for judgment under Rule 54 of the Mississippi Rules of Civil Procedure, and the trial court granted the motion on February 26, 2004. Pugh appeals to this Court, and the Pugh case and Chisolm case have now been consolidated.

Chisolm v. Miss. Dep’t of Transp., NO.2003-CA-02526-COA, 2005 Miss.App. LEXIS 560, at *1-4, 942 So.2d 165, 166-67 (Miss.Ct.App. Aug.16, 2005).

¶ 3. Pugh and Chisolm’s heirs (“Plaintiffs”) urged the Court of Appeals to hold that the trial courts erred in finding Great River to be an independent contractor, and in finding that MDOT was immune under the MTCA. Id. at *4, 942 So.2d at 167. In addressing these issues, the Court of Appeals considered the following three provisions of the MTCA:

(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:
* * *
(p) Arising out of a plan or design for construction or improvements to public property, including but not limited to, highways, roads, streets, [or] bridges ... where such plan or design has been approved in advance of the construction or improvement by the legislative body or governing authority of a governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval, and where such plan or design is in conformity with engineering or design standards in effect at the time of preparation of the plan or design;
* * X
(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care; [or] (w) Arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice[.]

Miss.Code Ann. § 11 — 46—9(l)(p), (v), (w).

¶ 4. The Court of Appeals affirmed summary judgment as to subsection (p) based on Great River’s independent contractor status. Chisolm, 2005 Miss.App. LEXIS 560, at *13, 942 So.2d at 166-67. The court also affirmed summary judgment as to subsection (w) because the traffic control plan met accepted engineering and design standards. Id. at *18, 942 So.2d at 168. It finally found summary judgment to be premature as to subsection (v) because a genuine issue of material fact existed as to MDOT’s notice of the dangerous condition at the construction site and its opportunity to warn or protect against the condition. Id. at *16-17, 942 So.2d at 167.

¶ 5. We granted certiorari to resolve the issue of whether the plaintiffs can overcome the independent contractor relationship between Great River and MDOT in order to hold MDOT liable for their injuries.

DISCUSSION

¶ 6. Mississippi Rule of Civil Procedure 56 governs motions for summary judgment. This Court reviews de novo a trial court’s grant of a motion for summary judgment. Webb v. Braswell, 930 So.2d 387, 395 (Miss.2006). In conducting our review, we examine all evidentiary matters, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996). This evidence must be viewed in the light most favorable to the non-moving party. Hataway v. Estate of Nicholls, 893 So.2d 1054, 1057 (Miss.2005). The movant carries the burden of demonstrating that no genuine issue of material fact exists. Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000). If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in the movant’s favor. Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss.2005).

I. Whether the plaintiffs may hold MDOT liable for the negligence of its independent contractor, Great River.

Independent contractor status

¶ 7. In Richardson v. APAC-Mississippi, Inc., 631 So.2d 143, 148 (Miss.1994), this Court set forth the following definition of an independent contractor: “An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.” Under the general rule, the independent contractor’s principal has no vicarious liability for the torts committed by the independent contractor or its employees in the performance of the contract. Heirs & Wrongful Death Beneficiaries of Branning ex rel. Tucker v. Hinds Cmty. Coll. Dist., 743 So.2d 311, 318 (Miss.1999) (“Tucker ”).

¶ 8. Several of the sections of the contract between MDOT and Great River, described below in relevant part, evidence the parties’ intent for Great River to serve as an independent contractor:

Section 104.01 — Intent of Contract
The Contractor shall furnish all labor, materials, equipment, supplies, transportation, supervision, methods and procedures necessary to complete the work in accordance with the plans, specifications and terms of the contract.
Section 104.04 — Maintenance of Traffic
The Contractor shall keep the portion of the project being used by public traffic in satisfactory condition for traffic to be adequately accommodated.
The Contractor shall be bound to the provisions of this subsection and other applicable provisions of the contract with regard to the safe and convenient passage of traffic.
Section 105.10 — Duties of the Inspector
Inspectors employed by the Department will be authorized to inspect all work and materials. The inspection may extend to all parts of the work and to the preparation, fabrication or manufacture • of the materials. The inspector will not be authorized to alter or waive the provisions of the contract, to issue instructions contrary to the plans and specifications, or to act as foreman for the contractor.
Section 107.10 — Barricades, Warning Signs & Flaggers
The Contractor shall provide, erect and maintain all necessary barricades, lights, danger signals, signs and other traffic control devices ... and shall take all necessary precautions for the protection of the work and safety of the public.... Suitable warning signs shall be provided to properly control and direct traffic.... Such warning signs shall be constructed and erected in accordance with the provisions of this contract.
Section 107.17 — Contractor’s Responsibility for Work
Until release of maintenance in accordance with 105.16, the Contractor shall have the charge and care thereof and shall take every precaution against injury or damage by action of the elements or from any other cause, whether arising from the execution or nonexecution of the work.
Section 618.01.2 — Traffic Control Plan
This work also consists of complying with the contract requirements of the Department’s Traffic Control Plan. The purpose of the Traffic Control Plan is to maintain through and local traffic safely through construction zones.

¶ 9. While the construction work had to comply with MDOT’s specifications and the Traffic Control Plan, Great River maintained control over the performance of all aspects of the work. Additionally, MDOT inspectors had no power to alter Great River’s performance, so long as the requirements of the contract were observed. Based on the clear language of the contract, we agree with the trial courts and the Court of Appeals that Great River was an independent contractor. Chisolm, 2005 Miss.App. LEXIS 560, at *9, 942 So.2d at 166. See also Tucker, 743 So.2d at 318 (county college not liable where airport management company found to be an independent contractor); Rolison v. City of Meridian, 691 So.2d 440, 445 (Miss.1997) (city not liable where umpires’ association found to be an independent contractor).

¶ 10. Even if a contract clearly evinces the parties’ settled intent to create a principal-independent contractor relationship, when a third party is adversely affected, this Court can look beyond the contract to determine whether public policy requires recharacterization of the relationship to allow the injured party to recover. This factor was set forth by the Court in Richardson, but we noted an important caveat to its application:

A necessary condition precedent for the application of this factor, however, is that the party challenging the claimed relationship will be adversely affected, and denied an adequate legal remedy. In the absence of this, the right of parties to contract as they please is a constitutionally-protected right.

Richardson, 631 So.2d at 150 (citing U.S. Const. art. I, § 10; Miss. Const. art. 3, § 16).

¶ 11. Application of the “public policy” factor is unwarranted in this case. After the trial courts handed down the orders granting summary judgment in favor of MDOT, the plaintiffs settled all of their claims against Great River and voluntarily dismissed the company. Therefore, the plaintiffs had an adequate remedy available to them and have been compensated. This factor contemplates a situation where the plaintiff cannot get any recovery based on the principal-independent contractor shield. Such is not the case here.

¶ 12. The plaintiffs cite numerous cases wherein this Court found summary judgment in favor of MDOT to be premature. However, in each of those cases, the negligent actions or omissions were attributable to MDOT alone, and not to an independent contractor. See Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 269 (Miss.2003) (question remained whether state itself exercised ordinary care in failing to eliminate a large pool of standing water on the highway); Leflore County v. Givens, 754 So.2d 1223, 1227-28, (Miss.2000), overruled in part on other grounds by Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 820 (Miss.2006) (question remained whether county itself exercised ordinary care in the discretionary placement of its warning signs); Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 264 (Miss.1999) (question remained whether MDOT itself knew about its failure to place a stop sign at a T-intersection). Therefore, these cases are inapposite. There is no genuine issue of material fact as to Great River’s status as an independent contractor.

The Manual on Uniform Traffic Control Devices (MUTCD)

¶ 13. The plaintiffs devote large portions of their briefs to discussing MDOT’s alleged violations of the MUTCD and arguing that MDOT’s noncompliance with certain provisions constitutes, in essence, negligence per se. Thus, the plaintiffs contend that MDOT can be held liable for their injuries despite Great River’s status as an independent contractor. The plaintiffs heavily rely on the following sections of the MUTCD:

MUTCD § 1A-2
The Manual presents traffic control device standards for all streets and highways open to public travel regardless of type or class or the governmental agency having jurisdiction.
MUTCD § 1A-3
The responsibility for the design, placement, operation and maintenance of traffic control devices rests with the governmental body or official having jurisdiction .... [TJraffie control devices placed and maintained by state and local officials are required by statute to conform to a State Manual which shall be in substantial conformance with this Manual _Under authority granted by Congress in 1966, the Secretary of Transportation has decreed that the traffic control devices on all streets and highways in each State shall be in substantial conformance with standards issued or endorsed by the Federal Highway Administrator.

Based on this language, the plaintiffs conclude that responsibility for the design, placement, operation, and maintenance of traffic control and warning devices rested ultimately with MDOT, and not with Great River.

¶ 14. This Court has often held that the provisions of the .MUTCD may be considered by a jury as nonconelu-sive evidence of negligence. However, the plaintiffs would have us radically alter that standard and use language found in the MUTCD to establish, as a matter of law, that MDOT is responsible for the torts of its independent contractor, Great River. Although Mississippi has not adopted the MUTCD, its provisions and guidelines are advisory in nature to a finder of fact. They have no significance, however, with respect to questions of law. Highway 61 has been designated a state highway and is, therefore, under the jurisdiction of the Mississippi Transportation Commission for construction and maintenance. Miss.Code Ann. § 65-3-3 (Rev.2001).

¶ 15. Alleged violation of a provision of the MUTCD is one fact to be considered in determining whether a defendant violated the standard of care. See Donaldson v. Covington County, 846 So.2d 219, 223 (Miss.2003); Jones v. Panola County, 725 So.2d 774, 778 (Miss.1998). The MUTCD becomes a tool for assessing a breach of duty only after a legal duty has already been established. It cannot be used to create a legal obligation under Mississippi law. Therefore, we agree with the Court of Appeals that MDOT’s alleged violations of the MUTCD do not constitute negligence per se, and the plaintiffs cannot use the MUTCD as a method of circumventing Great River’s independent contractor status to hold MDOT liable.

Potential non-delegable duty to protect the public’s safety

¶ 16. The general rule that a principal is not liable for the torts of its independent contractor has two notable exceptions. The first is that a principal can be held liable for injuries to a third party “ ‘caused by the failure of an independent contractor to exercise due care with respect to the performance of work which is inherently or intrinsically dangerous.’” Spruill v. Yazoo Valley Oil Mill, Inc., 317 So.2d 410, 413 (Miss.1975) (quoting Corban v. Skelly Oil Co., 256 F.2d 775, 780 (5th Cir.1958)). The second exception applies where the principal has a non-delegable duty. City of Laurel v. Upton, 253 Miss. 380, 395, 175 So.2d 621, 626 (1965). However, because the plaintiffs did not present either of these arguments, we shall not consider them. King v. State, 857 So.2d 702, 717 (Miss.2003) (possible error waived for failure to make argument in support of the issue).

¶ 17. The plaintiffs may not hold MDOT liable for the negligence of its independent contractor, Great River. The trial courts properly granted summary judgment in favor of MDOT on this basis.

II. Whether the plaintiffs have alleged sufficient facts to hold MDOT liable for its own conduct.

¶ 18. We must determine whether the plaintiffs have presented any triable issue of fact which would establish liability for MDOT’s own conduct. Unless the plaintiffs can produce some evidence that MDOT or its employees committed some negligent act, MDOT cannot be held liable.

¶ 19. The elements of a negligence claim are duty, breach of that duty, proximate cause, and damages. May v. V.F.W. Post # 2539, 577 So.2d 372, 375 (Miss.1991). However, none of the plaintiffs’ allegations arise from any duty or breach of duty by MDOT. MDOT was responsible for developing the Traffic Control Plan, and Great River was responsible for implementing it. We agree with the Court of Appeals that there is no genuine issue of material fact whether the Traffic Control Plan met the accepted engineering or design standards at that time. Despite their claim that Lieutenant David Beard’s testimony on accident reconstruction would show otherwise, the plaintiffs have not produced evidence that actually contradicts MDOT’s evidence that the plan conformed to accepted engineering or design standard when it was approved.

¶ 20. By contract, Great River was required to faithfully implement the provisions of the Traffic Control Plan. Additionally, MDOT’s inspectors could not act as “foremen” on these projects. Instead, they reported the project’s progress to the MDOT project engineer. The plaintiffs rely on a report by MDOT inspector George Germain from March 18, 1999, where he noted the need for additional lights and barrels at the construction area. However, according to Germain’s testimony, this information was relayed to MDOT’s independent contractor, Great River, the entity who was responsible for complying with the requirements of the traffic control plan. While subsequent reports did not specifically note the addition of the lights and barrels, every report from Germain until Friday, April 9, 1999, and after the accident on April 12, 1999, and from resident engineer Wes Stafford after the accident on April 14, 1999, stated that the construction site complied with the Traffic Control Plan.

¶ 21. All of the evidence points to negligence by Great River, MDOT’s independent contractor. Great River was responsible for the installation and maintenance of signage and warning devices and for debris removal from areas traveled by the public. This construction project was executed by Great River’s employees, and the plaintiffs have presented no evidence that MDOT’s employees committed any act or omission that led to the accident. We cannot look to apply the immunity provisions of the MTCA unless some wrong by the government is first established, and the requisite negligence cannot be established here. The Court of Appeals erred in automatically analyzing this case under the MTCA without first determining whether MDOT’s conduct could lead to liability in the first place. Therefore, the Court of Appeals’s judgment reversing the trial courts’ grants of summary judgment in favor of MDOT is, itself, reversed.

III. Whether MDOT may avoid liability through the application of sovereign immunity.

¶ 22. Because we have established, as a matter of law, that Great River was MDOT’s independent contractor and that no conduct by MDOT can serve as grounds for independent liability, we need not engage in any analysis of the sovereign immunity issue. Based on the discussion above, the plaintiffs have presented no genuine issue of material fact regarding MDOT’s liability, given the status of Great River as an independent contractor and the lack of negligence by MDOT or its employees.

CONCLUSION

¶ 23. For these reasons, we reverse the judgment of the Court of Appeals and affirm the judgments of the trial courts granting summary judgment in favor of MDOT.

¶ 24. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENTS OF THE CIRCUIT COURT OF SHARKEY COUNTY ARE REINSTATED AND AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Significantly, the reasoning in both Givens and Jones was later questioned by this Court in Collins v. Tallahatchie County, 876 So.2d 284, 289 (Miss.2004), wherein we held that the ordinary care standard did not apply to subsection 1 l-46-9(l)(d) of the MTCA regarding the performance of discretionary functions.


source: Caselaw Access Project

author: CARLSON, Justice, RANDOLPH, Justice,

license: Public Domain

text:
    Deborah CHAMPLUVIER a/k/a Deborah Marie Champluvier v. STATE of Mississippi.
    No. 2003-CT-02581-SCT.
    Supreme Court of Mississippi.
    Nov. 9, 2006.

      Deborah Champluvier, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   ON WRIT OF CERTIORARI

CARLSON, Justice,

for the Court.

¶ 1. Upon being indicted on two counts of embezzlement from a limited liability company pursuant to Miss.Code Ann. § 97-23-19 (Rev.2000), Deborah Champlu-vier was tried and found guilty by a DeSo-to County jury on November 4, 2003. At a subsequent sentencing hearing, the trial judge sentenced Champluvier to concurrent sentences of five years in the custody of the Mississippi Department of Corrections, with four and one-half years of each sentence suspended, followed by two years of house arrest pursuant to Miss.Code Ann. §§ 47-5-1001, -1015 (Rev.2004). Champluvier appealed her convictions and sentences to this Court, and we assigned this case to the Court of Appeals which affirmed Champluvier’s convictions and sentences. Having granted Champluvier’s petition for writ of certiorari, we reverse the judgments of the Court of Appeals and the circuit court and render judgment here discharging Champluvier.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. The relevant facts of this case are very ably set out in the opinion of the Court of Appeals:

On September 18, 1998, Deborah Cham-pluvier created Perfect Treasures Furniture, L.L.C. in Horn Lake with L.L. Ross. No one ever found a written executed operating agreement for Perfect Treasures On March 22, 1999, Ross had a stroke and later died intestate leaving his half of the business to his heirs on March 25. The State alleged that Champluvier took $6,000 of the $6,202.07 out of the operating account March 23, the day after L.L.’s stroke. Champluvier claimed that the money was to pay her back for a loan to the business.
Thomas Ross became administrator of his father’s estate including acting as the liquidating trustee of L.L.’s business interests. The Chancery Court of DeSoto County entered an agreed order granting judicial dissolution, preliminary injunction and other relief on June 11, 1999, that kept a prior temporary restraining order in effect. The order found that Champluvier individually and as a member of Perfect Treasures disposed of numerous assets, inventory and proceeds from Perfect Treasures and, thus, could not carry on the business in conformity with the certificate of formation. The order also stated that Cham-pluvier denied Ross access to the books, records, inventory, and premises to such a point as to constitute pervasive fraud and unfairness toward the membership interest of L.L. Ross.
Furthermore, the order found that Champluvier had misapplied and wasted the assets of Perfect Treasures after L.L.’s death as well as failed to pay the debts and creditors. The order required Champluvier to return all proceeds, cash, and/or checks, accounts, checkbooks, check registers, and/or other banking records or documents to Thomas Ross. Thomas testified that Champluvier never turned any funds over to him after this order that required her to do so. After this order, Champluvier withdrew the remaining $445 dollars from a Perfect Treasures’s bank account without turning it over to Thomas Ross even though the order expressly said that, “Defendant is hereby restrained from disposing of any accounts, funds, assets, inventory and/or proceeds of Perfect Treasures.”
Thomas’s attorney during the estate process, Barry Bridgforth, testified that he never received documentation from Champluvier to show where she loaned the company money as the order required him (sic) to. Bridgforth also testified that the check for $6000 had a date of March 22 on it, but the corresponding ledger book the check came out of had the date March 23. At first Champluvier testified in her deposition that she took the money to purchase used furniture. She never provided information as to the seller of this used furniture. Bridgforth also testified that Champluvier said that part of the money was needed because the landlord would only take cash, yet the ledger showed checks written out to the landlord that month. He also testified about the $445 dollar withdrawal from Perfect Treasure’s second account that Champluvier withdrew after the hearing granting the injunction. Bridgforth further testified that Champluvier never gave the money back or tried to give the money back as required by the order. She also filed for bankruptcy to prevent the estate from collecting from her.
Champluvier originally hired Randall Pierce to represent her in this matter. However, she filed her own motions including motions that accused Pierce of forging her signature on documents and conspiring with the prosecution. She also admitted that Bill Cockrell helped her with her motions but later downplayed the extent that he helped her. Pierce moved to remove himself as counsel due to the allegations but Champluvier filed a motion for the trial court to deny this request. When asked how she could want an attorney who did the things she accused Pierce of she responded, “Well, I don’t know that he forged my signature. I mean I don’t know that ... I’m guessing.” She also felt that the employment contract between the two should require he remain her attorney. The trial court also granted Champluvier’s motion to proceed in forma pauperis and appointed Jack R. Jones, III as counsel for her. However, Champluvier soon moved to have the court remove Jones as “ineffective counsel the same as no counsel” since he could not recite the entire Mississippi and United States Constitutions. When the court decided to appoint her new counsel, Clay Vanderburg, she objected to receiving new counsel and argued that Vanderburg could not serve as effective counsel after her five minute interview with him.
She later filed a motion to remove Van-derburg from the case as well that the trial court denied. The trial court urged her to use the assistance of the appointed counsel but noted that she had the right to represent herself if she chose to do so. The trial court retained Vander-burg to assist Champluvier if she chose to during the trial as her standby counsel.
Right before her trial began, Champluvier accused two different witnesses of saying derogatory comments about her close enough for the jury to hear them. The trial judge listened to April Brown and Bobbie Yates describe things they saw or overheard from Thomas Ross or A.C. Leroy Easley. No one in the jury responded that they overheard Easley and the juror who met Ross at a cigarette break said they did not discuss the case. The juror said that all Ross said concerned that his father owned a Furniture Store and that he felt he could remain impartial about the case. Champluvier called upon her daughter, April Brown, and the store’s truck driver George Friday, who both testified that she purchased $4000 worth of used furniture at the time in question. Champluvier argued that she could not act as the agent or servant of the company and also be an owner or member. Further, she argued that she could not embezzle the money because she owned it. However, the jury convicted Cham-pluvier on both counts of embezzlement. The trial judge also caught her lying under oath at her sentence hearing when she described selling all the merchandise in the store for her attorney bills associated with the temporary restraining order. However, the temporary restraining order came after this sale to liquidate all the merchandise in the store. Champluvier then filed her appeal with fourteen issues of error. The brief surpasses the fifty page limit for the body of briefs as given by M.R.A.P. 28(g) by topping out at seventy-five pages. Champluvier also made sure to include every possible person from the Governor of Mississippi to every member of the Mississippi Bar as “Interested Persons”.

Champluvier v. State, 2005 Miss. Ct.App. LEXIS 1025, 2-7, 942 So.2d 172, 175-77, 2005 WL 3372782 (Miss.Ct.App.2005).

¶ 3. From the time of her indictment and throughout the course of the various proceedings in this case, Champluvier’s conduct was less than civil. Champluvier went through several attorneys, and all three circuit judges in the circuit court district of which DeSoto County is a part, eventually recused themselves. By order entered on August 4, 2003, the Chief Justice of this Court specially appointed Judge Gray Evans to preside and conduct all proceedings in this case. Throughout his involvement in this case, Judge Evans dealt patiently with Cham-pluvier to assure that she was afforded all her rights as guaranteed by our state and federal constitutions, even though Champluvier persistently and obstinately ignored the notions of fundamental decency. In fact, Judge Evans acted with great restraint. Among the actions taken by Judge Evans when Champluvier persisted in representing herself was to advise her of her rights pursuant to URCCC 8.05 concerning pro se defendants. Not surprisingly, Champluvier, proceeding pro se, dug herself a hole before the jury, which promptly convicted her of both counts of embezzlement. Again, at the subsequent sentencing hearing, Judge Evans exercised almost unbelievable restraint, but ultimately (and understandably) held Champluvier in contempt of court for her conduct, and sentenced her to an additional ten days in the DeSoto County Jail. Notwithstanding Champluvier’s conduct, Judge Evans imposed a lenient sentence, allowed Cham-pluvier to appeal in forma pauperis, and allowed Champluvier to remain at liberty-pending appeal via a $15,000 appeal bond.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 4. Champluvier raised fourteen issues before the Court of Appeals, which thoroughly addressed each issue. Among the issues addressed by the Court of Appeals was the application of Miss.Code Ann. § 97-23-19 (Rev.2000). In its discussion, the Court of Appeals addressed this statute’s applicability in relation to Miss.Code Ann. §§ 79-29-101 et seq. (Rev.2001), commonly cited as the “Mississippi Limited Liability Company Act” (MLLCA). Champluvier argued in essence that since she was accused of stealing from an LLC, she was guilty of no crime under the provisions of section 97-23-19, which applied only to corporations and private persons. In distinguishing this Court’s decision in Burroughs v. State, 406 So.2d 814 (Miss.1981), and its own recent decision in Coleman v. State, No.2004-KA-00346-COA, 2005 Miss. Ct.App. LEXIS 795, — So.2d -, 2005 WL 2851512 (Miss.Ct.App. Nov.1, 2005), the Court of Appeals rejected Champluvier’s argument, stating, inter alia:

Perfect Treasures also had its own bank accounts and Federal Tax ID number and was registered with the Secretary of State’s Office. Mississippi Code Annotated § 79-29-701 states, “A limited liability company interest is personal property. A member has no interest in specific limited liability company property.” Thus, an LLC is treated like a corporation in that it acts as a separate individual and owns property as a separate individual. The city also granted a business license to Perfect Treasures and not to either Ross or Champluvier. Champluvier clearly converted funds that did not belong to her, but to Perfect Treasures.

Champluvier v. State, 2005 Miss. Ct.App. LEXIS 1025 at **9-10, 942 So.2d at 177-78. On this issue, the Court of Appeals concluded:

This case clearly fits the intent of the statute to prevent someone from embezzling assets from a company that legally belongs to the company and not the individual. The statute acts to prevent some “by virtue of his office, place, or employment” from “converting to their own use.” Since the company is not a person, this statute serves as the way to prosecute someone from fraudulently taking money from the LLC where he gained the ability as one of its members. The statute clearly did not intend to outlaw converting funds from an incorporated company but legalize unauthorized conversion of funds from an LLC. This would create another advantage to LLC’s beyond the tax benefits to its members since the members could also embezzle all of the assets away from [the] LLC and its members without fear of retribution. We reject this argument.

Id. at **10-11, at 178.

¶ 5. In his separate concurring opinion, Judge Griffis, who dissented in Coleman, found Coleman to be similar to Champluvier’s case, and in essence adopted and incorporated by reference his dissenting opinion in Coleman. Judge Griffis found that “the proper interpretation of the term ‘incorporated company,’ as used in Section 97-23-19, should include all entities that are created by statute under Title 79 of the Mississippi Code Annotated, which is titled ‘Corporations, Associations and Partnerships,’ ” and that since an LLC “is created under the Mississippi Limited Liability Company Act,” which is included in Title 79, Champluvier violated section 97-23-19 and could be held criminally culpable for her actions. Id. at **27-28, at 184.

¶ 6. In her dissent, Judge Barnes concluded that the Legislature’s “narrow and precise language in the embezzlement statute” did not include limited liability companies since “section 97-23-19 plainly does not allow agents of unincorporated entities to be subjected to prosecution for embezzlement.” Id. at **30-31, at 185. Finding the dissent to be right on target, we agree and thus reverse and render.

DISCUSSION

¶ 7. While the Court of Appeals was called upon to address fourteen issues asserted by Champluvier, we find one issue dispositive and thus decline to address the remaining issues. We re-state the issue for the sake of clarity in discussion.

WHETHER MISS. CODE ANN. § 97-23-19 APPLIES TO LIMITED LIABILITY COMPANIES.

¶ 8. Before the Court today is the question of whether a criminal statute which provides that certain persons may be criminally culpable for embezzling from an incorporated company or a private person likewise encompasses similar acts committed against a limited liability company. Since the interpretation of a statute is a question of law, we are required to employ a de novo standard of review. Sykes v. State, 757 So.2d 997, 999 (Miss.2000) (citing Ellis v. Anderson Tully Co., 727 So.2d 716, 718 (Miss.1998)).

¶ 9. Champluvier was indicted in a two-count indictment charging, inter alia, that she “did wilfully, unlawfully and felo-niously, at a time when she was an agent or servant of Perfect Treasures, L.L.C., a Mississippi Limited Liability Company, embezzle, fraudulently secrete, conceal and convert to her own use ... the personal property of Perfect Treasures, L.L.C., a Mississippi Limited Liability Company, which money had come or been entrusted to her care or possession by virtue of her office, place, and employment, in direct violation of Section 97-23-19, Mississippi Code 1972 Annotated.” This language was common to both counts, with count one charging the embezzlement of “approximately $6,000.00” on or about March 23, 1999, and count two charging the embezzlement of “approximately $445.64” on or about June 8,1999.

¶ 10. At the time these offenses were alleged to have been committed by Cham-pluvier, Miss.Code Ann. § 97-23-19 (Rev. 2000) stated:

If any director, agent, clerk, servant, or officer of any incorporated company, or if any trustee or factor, carrier or bail-ee, or any clerk, agent or servant of any private person, shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods, rights in action, money, or other valuable security, effects, or property of any kind or description which shall have come or been intrusted to his care or possession by virtue of his office, place, or employment, either in mass or otherwise, he shall be guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the penitentiary not more than ten years, or fined not more than one thousand dollars and imprisoned in the county jail not more than one year, or either.[]

¶ 11. In May v. State, 240 Miss. 361, 127 So.2d 423 (1961), this Court set out the elements of the embezzlement statute, Miss.Code § 2115 (Recomp.1942), which was the predecessor statute to Miss.Code Ann. § 97-23-19. We stated:

The constituent elements of the offense are (1) an agent or trustee of a private person,[] (2) embezzling or converting to his own use, (3) rights in action, money, or other valuable security, effects or property of any kind, (4) which have been intrusted to his care or possession by virtue of his position or employment.

240 Miss. at 363, 127 So.2d at 425. May involved a charge under the statute of embezzlement by a trustee and agent of a private person. Thus, in the appropriate case, the first element, depending on the facts of the case, would state either that “a director, agent, clerk, servant, or officer of any incorporated company” had embezzled, or that “any trustee or factor, carrier or bailee, or any clerk, agent or servant of any private person” had embezzled. See also Montgomery v. State, 891 So.2d 179, 186-87 (Miss.2004); Bunkley v. State, 495 So.2d 1, 3-4 (Miss.1986); Coleman, 2005 Miss.App. LEXIS 795, 8-9, — So.2d at - (citing May, 240 Miss. at 363, 127 So.2d at 425).

¶ 12. The cases are legion where we have been confronted with questions of whether the evidence in a criminal case is legally sufficient to support a conviction. We again recently addressed the sufficiency of the evidence in relation to the elements of the crime charged:

“The motion for j.n.o.v. tests the legal sufficiency of the evidence supporting the verdict” while “the motion for a new trial is an altogether different animal.” Jesco, Inc. v. Whitehead, 451 So.2d 706, 713-14 (Miss.1984) (Robertson, J., specially concurring). Our cases setting out the standard of review for the legal sufficiency of the evidence are legion. In Gleeton v. State, 716 So.2d 1083, 1087 (Miss.1998), we stated:
We must, with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict. The credible evidence which is consistent with the guilt [of the accused] must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.
Wetz v. State, 503 So.2d 803, 808 (Miss.1987) (citations omitted).

716 So.2d at 1087 (quoting from Franklin v. State, 676 So.2d 287, 288 (Miss.1996)). Jones v. State, 918 So.2d 1220, 1233-34 (Miss.2005). See also Bush v. State, 895 So.2d 836, 843-44 (Miss.2005); Bunkley, 495 So.2d at 3-4. As this Court stated in Bunkley:

This process [j.n.o.v. criteria] must be applied to each element of the offense charged. Embezzlement under Miss. Code Ann. § 97-23-19 (1972), requires proof of the identity of the “incorporated company” whose goods and money the accused has embezzled. The statute further requires proof that the defendant was a “director, agent, clerk, servant or officer” of that incorporated company.

Id. at 3-4 (footnote omitted). Thus, in any embezzlement prosecution under section 97-23-19, the State is required to prove the identity of the “incorporated company,” or the “private person,” as the case may be.

¶ 13. In her dissent in today’s case, Judge Barnes provided this analysis:

In the present case, we are again confronted with the task of determining whether section 97-23-19 allows an agent of an unincorporated body to be convicted of embezzlement. The majority holds that because LLCs and corporations share many similarities, the statute should apply to agents of LLCs as well as to agents of [corporations]. Once again, the plain language of the statute does not permit this result. An LLC, by definition, is not an incorporated company, and regardless of the similarities between the two types of entities, the terms are not interchangeable. In fact, Mississippi Code Annotated section 79-29-104(l)(d) (Rev.2001) specifically prohibits an LLC from using the words “corporation” or “incorporated” in its name.
The legislature surely had some reason for employing such narrow and precise language in the embezzlement statute. The legislature, in its prerogative, certainly could have altered the statute to take into account more modern business entities, had it desired. The fact that the statute is not written more broadly should not be written off as legislative acquiescence, as the legislature had the opportunity to re-examine section 97-23-19 when it amended the statute in 2003. The legislature made no amendment broadening the business entities to which the statute applies, and we should not do so judicially.
Both the dissent in Coleman and the concurrence in the present case argue that any entity created under Title 79 of the Mississippi Code should be construed as an “incorporated company” for the purposes of section 97-23-19. However, because the language in section 97-28-19 is clear and precise, I believe that looking beyond the plain text of the statute is inappropriate. See Heard 151 So.2d at 420 (stating that this Court will not resort to canons of statutory construction when the statute in question is clear and unambiguous)

2005 Miss. Ct.App. LEXIS 1025, at 29-31, 942 So.2d at 185.

¶ 14. That dissent drives home several points critical to the disposition of today’s case. Pursuant to State v. Heard, 246 Miss. at 781, 151 So.2d at 420, the plain and unambiguous language of section 97-23-19 simply obviates any requirement to apply the rules of statutory construction. See also Sykes, 757 So.2d at 1000 (citing Miss. Power Co. v. Jones, 369 So.2d 1381, 1388 (Miss.1979)). The current section 97-23-19 and its predecessors have been a part of our code in some shape or form at least since Hutchinson’s 1848 Code. The current Mississippi Limited Liability Company Act, Miss.Code Ann. §§ 79-29-101, et seq. (Rev.2001), was enacted by the Legislature effective July 1, 1994. The Legislature, as recently as 2003, amended section 97-23-19, and thus was presented with a golden opportunity, if it chose to do so, to further revise this statute to include the “more modern business entities,” such as limited liability companies, limited partnerships, professional corporations, professional associations, and the like. The Legislature, in its wisdom, chose not to do so, and, we should thus not breathe life into imaginary entities which are nowhere to be found in section 97-23-19. Stated differently, we should not be about the business today of reading and construing a criminal statute and a civil statute in pari materia to determine if Champluvier is guilty of a crime.

¶ 15. In the recent case of Trainer v. State, 930 So.2d 373 (Miss.2006), this Court affirmed the trial court’s dismissal of a suit commenced by an individual who claimed that his video game machines were wrongly seized by law enforcement officials as illegal gambling machines. Trainer challenged the constitutionality of the criminal statutes under which he had been arrested and his gaming machines had been seized. See Miss.Code Ann. §§ 97-33-7, -17. Trainer invited us to consider the criminal statutes in conjunction with certain civil statutes and Mississippi Gaming Commission regulations to conclude that the criminal statutes were unconstitutional in their application and unconstitutionally vague. We declined Trainer’s invitation and instead determined that the answers to the issues before us were clearly found in the criminal statutes, thus requiring no examination of the civil statutes and regulations in conjunction with the criminal statutes. 930 So.2d at 379-81.

¶ 16. Pursuant to URCCC 7.06, all defendants facing felony criminal charges in this state, no matter who they are, or how reprehensible their conduct in court, are entitled to an indictment which sets out, inter alia, “a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify [them] of the nature and cause of the accusation.” In today’s case, Cham-pluvier was charged by a grand jury indictment with embezzling funds from a limited liability company in violation of section 97-23-19. Consistent with URCCC 7.06, and our case law, no defendant should be charged with the responsibility of going beyond the clear language of an embezzlement indictment and perusing the civil statutes of this state to determine if an entity specified in Title 79 of the Mississippi Code Annotated can be classified as an “incorporated company” or a “private person” so as to be subjected to criminal culpability under section 97-23-19.

¶ 17. In the end, for the reasons stated, we conclude that a limited liability company such as existed between Deborah Champluvier and L.L. Ross, is not encompassed within the language of section 97-23-19, as currently written, providing for a felony conviction upon embezzlement of certain therein described property belonging to an incorporated company or a private person. If the Legislature should determine it is appropriate to amend section 97-23-19 so as to include any or all of the entities described in Title 79 of the Mississippi Code Annotated, the Legislature no doubt possesses the prerogative to do so. We are not about the business of legislating. Therefore, we find that the State, admittedly confronted with an impossible task, did not present legally sufficient evidence which would support a guilty verdict against Champluvier, on each and every element of the crime of embezzlement as set out in section 97-23-19. Jones, 918 So.2d at 1233-34 (citing Gleeton, 716 So.2d at 1087).

¶ 18. Because of our disposition on this issue, we find that the remaining issues raised by Champluvier before the Court of Appeals need not be discussed.

CONCLUSION

¶ 19. The State of Mississippi did not prove beyond a reasonable doubt that Deborah Champluvier, a/k/a Deborah Marie Champluvier, was guilty of each and every element of the crime of embezzlement as set out in Miss.Code Ann. § 97-23-19 (Rev.2000). For these reasons, we reverse the judgments of the Court of Appeals and the DeSoto County Circuit Court and render judgment here in favor of Deborah Champluvier, a/k/a Deborah Marie Champluiver, who is thus discharged.

¶ 20. REVERSED AND RENDERED.

SMITH, C.J., WALLER, P.J., DIAZ, GRAVES AND DICKINSON, JJ., CONCUR. COBB, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J.

RANDOLPH, Justice,

Dissenting:

¶ 21. The majority declares that “the plain and unambiguous language of [Miss. Code Ann.] Section 97-23-19 simply obviates any requirement to apply the rules of statutory construction.” Having correctly identified the standard, the majority then fails to follow its own instruction. The hyper captious analysis found in the Court of Appeals dissent and adopted by the majority, defeats the very purpose and intent of the legislative act and subverts the plain language of Miss.Code Ann. Sect. 97-23-19.

¶22. The Court of Appeals majority held, “This case clearly fits the intent of the statute to prevent someone from embezzling assets from a company that legally belongs to the company and not the individual.” Champluvier v. State, 2005 Miss.App. LEXIS 1025, 10, 942 So.2d at 178 (Miss.Ct.App.2005). The Court of Appeals majority opinion presents a logical, practical and reasoned application of a LLC as a business entity under Title 79, Chapter 29 of the Mississippi Code. For those who reject the path taken by the Court of Appeals to its conclusion, I offer a separate path which leads the defendant to the same destination. Accordingly, I agree with the judgment of the Court of Appeals, and in support thereof, I offer the following analysis.

¶ 23. Miss.Code Ann. Sect. 79-29-701 states, “A limited liability company interest is personal property. A member has no interest in specific limited liability company property.” A group of persons, members, make up a limited liability company. Miss.Code Ann. Sect. 79-29-103(n) defines member as, “a person that has been admitted to a limited liability company as provided in Section 79-29-301.... ” (Emphasis added). Members of a LLC are individual persons united for a common purpose.

¶ 24. We are required to utilize legislative guidelines set forth in the Code to assist us in interpreting statutes. Miss. Code Ann. Sect. 1-3-1 states, “This chapter is applicable to every statute unless its general object, or the context of language construed, or other provisions of law indicate that a different meaning or application was intended from that required by this chapter.” Further, Miss.Code Ann. Sect. 1-3-65 instructs, “All words and phrases contained in the statutes are used according to their common and ordinary acceptation and meaning; but technical words and phrases according to their technical meaning.” Miss.Code Ann. Sect. 97-23-19 fails to declare that a “private person” is to be used only in the singular. ‘Words used in the singular number only, either as descriptive of persons or things, shall extend to and embrace the plural number; and words used in the plural number shall extend to and embrace the singular number, except where a contrary intention is manifest.” Miss.Code Ann. § 1-3-33. In this matter, no contrary intent was manifest.

¶ 25. Champluvier had, as all members of a LLC have to each other, a fiduciary duty to the LLC and the respective individual members thereof. Members have a right to repose trust upon another member acting in a fiduciary capacity, ie., a trustee. Miss.Code Ann. Sect. 97-23-19 specifically provides “any trustee” shall not embezzle from any private person(s), ie., members of a LLC.

¶ 26. Thus, Champluvier embezzled from a private person. The majority’s conclusion that the members of a limited liability company, (where personal property, ie., their interest in the LLC, has vanished through a criminal act), are not “private persons” leaves society with a paradoxical result: a defendant who stole money, yet according to the majority, did not commit a crime. This result eviscerates the legislative intent and purpose of Miss. Code Ann. Sect. 97-28-19. Therefore, I must respectfully dissent.

EASLEY, J., JOINS THIS OPINION.

      . Bill Cockrell, a/k/a Billy Cockrell, is no stranger to our court system, nor to the notion of pro se representation. See, e.g., Cockrell v. State, 2005 Miss. LEXIS 816 (Miss.2005) (per curiam affirmance); Cockrell v. City of Southaven, 730 So.2d 1119 (Miss.1998); Cockrell v. Memphis-Shelby Co. Airport Auth., 1996 WL 33370653, 1996 U.S. Dist. LEXIS 21375 (N.D.Miss.1996), (aff'd mem., 125 F.3d 851 (5th Cir.1997)). The record indeed reflects that Cockrell was present at many of the court proceedings involving Champluvier’s criminal charges. Champluvier's conduct at trial and her trial antics virtually mirror that of Cockrell. See Cockrell, 730 So.2d at 1121-23.

      . The Court of Appeals reversed Coleman’s conviction and rendered judgment for Coleman. This Court thereafter granted the State’s petition for writ of certiorari. Coleman v. State, 2006 Miss. LEXIS 321, 933 So.2d 303 (Miss. June 15, 2006). Coleman, which involves the same criminal statute which is before us in today’s case, is still pending before this Court. Coleman involved charges of embezzlement of funds belonging to an unincorporated church and one of its deacons. Since Coleman is still pending before us, we will not discuss its merits in today’s case. On the other hand, we will on occasion make a passing reference to Coleman for the sake of clarity in today’s discussion.

      . The majority opinion was authored by Judge Bridges and joined by four other judges. Judge Griffis wrote a separate concurring opinion, joined by two other judges. Judge Barnes wrote a dissenting opinion, joined by two other judges. Two judges joined in both the majority opinion and the separate concurring opinion. Nine of the ten judges participated in this case.

      . By order entered on September 25, 2003, the indictment was amended to reflect the name of the victim to be "Personal Treasures Furniture, LLC.” Likewise, by order dated October 6, 2003, and entered, nunc pro tunc on October 14, 2003, the indictment was again amended to reflect the name of the defendant to be "Deborah Champluvier (a/k/a 'Deborah Marie Champluvier').”

      . Thus the statute applicable to Champluvier provided for a defendant convicted of embezzlement to be sentenced either as a felon or a misdemeanant, in the discretion of the trial judge, regardless of the amount embezzled. However, effective July 1, 2003, this statute was amended to provide for a felony conviction if the amount embezzled was $500.00 or more, and for a misdemeanor conviction if the amount embezzled was less than $500.00. The penalty for a felony conviction under the statute is a maximum sentence of not more than ten (10) years in the state penitentiary, or a fine of not more than $10,000.00, or both; while, on the other hand, the penalty for a misdemeanor conviction under the statute is a maximum sentence of not more than six (6) months in the county jail, or a fine of not more than $1,000.00, or both. However, the 2003 amendment obviously does not apply to today’s case.

      . In the appropriate case the word “corporation” or "incorporated company” could be substituted for the phrase "private person.”

      7. State v. Heard, 246 Miss. 774, 151 So.2d 417 (Miss.1963).

      . While the Court of Appeals' majority opinion in Champluvier, attempts to distinguish our decision in Burroughs, Judge Barnes makes no mention of Burroughs in her dissenting opinion. Likewise, while the facts in Burroughs, a cow embezzlement case, provide some interesting reading, our disposition in today's case does not require a discussion of joint venture.

      . Also, this Court rejects the notion that "incorporated company" refers to any entity other than a corporation. Miss.Code Ann. § 79-29 — 103(j) states:
      "Limited liability company” and "domestic limited liability company” mean an entity having one or more members that is an unincorporated association that is formed and existing under this chapter.”
      Miss.Code Ann. § 79 — 29—103(j) (Rev.2001). The Legislature has specifically defined a limited liability company as an unincorporated association. Therefore, adhering to our precedent in State v. Heard, this Court must literally interpret the term "incorporated company” to exclude limited liability company. If the Legislature intended to include limited liability companies in Miss.Code Ann. § 97-23-19, then it may amend the statute.


text:
    Torri L. SANDERS and Sherry Sue Johnson v. STATE of Mississippi.
    No. 2003-KA-01295-SCT.
    Supreme Court of Mississippi.
    Nov. 9, 2006.
    Robert Sneed Laher, Corinth, Louis Julian Holliday, Jr., attorneys for appellants.

      Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before SMITH, C.J., GRAVES and DICKINSON, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. This is a depraved heart murder case brought against two shoplifters who were involved in a fatal car crash at the end of a highspeed chase. The question presented is whether the trial court abused its discretion in refusing to sever the case to allow separate trials for the two defendants.

BACKGROUND FACTS AND PROCEEDINGS

¶2. On the morning of February 21, 2002, Sherry Sue Johnson went to Torri L. Sanders’s home in White House, Tennessee, and convinced Sanders and another woman, Astin Dile, to accompany her on a shoplifting spree in Alabama. Although Sanders and Dile initially declined to go, they changed their minds. The three women set out in Johnson’s car to Alabama, where they used a specialized shoplifting scam to “hit” several Wal-Mart stores. Upon arriving at the Wal-Mart in Mussel Shoals, Dile and Sanders went inside to purloin merchandise, while Johnson waited behind the wheel of the getaway vehicle. As they practiced their thievery, Dile triggered an alarm, prompting a Wal-Mart associate to ask to see a receipt and the contents of a box she and Sanders were taking from the store. Rather than comply with the associate’s request, the two women ran to the getaway vehicle and fled the scene.

¶ 3. Concerned they were being followed by a police officer, Johnson pulled into a stranger’s driveway, and the women waited for thirty to forty-five minutes until they thought it was safe to continue their getaway. Sanders then took the wheel of the getaway vehicle, Johnson moved to the passenger’s seat, and Dile sat directly behind her in the backseat.

¶ 4. A police officer spotted the getaway car as it left the driveway. Ignoring the officer’s flashing blue lights, the women fled, and a highspeed chase began. Sanders sped through residential areas and ran through intersections, stop signs, and red lights until she made her way onto Highway 72. The officer in pursuit never saw brake lights. At one point, Johnson grabbed the wheel and steered the car into the median and around two large trucks which were blocking the lanes at the request of the police. Sanders also flew through both stationary and rolling roadblocks at speeds (according to Dile’s testimony) of at least 110 miles per hour.

¶ 5. A Tuscumbia officer testified that, during the highspeed pursuit, he observed the occupants of the vehicle laughing and carrying on a conversation. Johnson was on the phone most of the time, while Sanders was smoking cigarettes. A Cherokee police officer who later joined the chase was nearly run off the road.

¶ 6. As Sanders continued to drive, Johnson served as navigator, consulting a road map to find the best escape route. Dile testified that, rather than trying to get Sanders to stop, Johnson continuously yelled, “go, go, go!” During the chase, Johnson explained to Dile that they could not stop because she and Sanders would have their probations revoked and they would have to go to jail. At some point, however, Johnson accepted the inevitable and called her husband to arrange bail money.

¶ 7. The defendants entered a busy commercial area of Corinth, Mississippi, at a high rate of speed. Sanders ran through a red light, hit the brakes, and crashed at 67 miles per hour into the side of a Chevy Cavalier driven by 36-year-old Kathy Hollands. Also in the Cavalier were Hollands’s daughter, Brandy, 17, and Brandy’s best friend, Jennifer Parsons, 18. All three women in the Cavalier were killed. The police arrived only seconds after the wreck.

¶ 8. Sanders and Johnson were indicted on March 21, 2002, on three counts of depraved heart murder. On March 7, 2003, Johnson filed a motion to sever the eases, which the trial court denied. The case against both women proceeded to trial in Alcorn Circuit Court on March 24, 2003. At the conclusion of the trial, the jury found both defendants guilty on all counts, and on March 27, 2003, they were each sentenced to three consecutive life sentences in the custody of the Mississippi Department of Corrections.

¶ 9. On April 16, 2003, the defendants filed a Motion for New Trial, which the trial court denied. The defendants then appealed to this Court, raising only one substantive issue for our consideration, that is, whether the trial court erred in not severing the case and allowing the defendants to have separate trials.

DISCUSSION

¶ 10. Rule 9.03 of the Uniform Rules of Circuit and County Court Practice provides that “[t]he granting or refusing of severance of defendants in cases not involving the death penalty shall be in the discretion of the trial judge.” Therefore, we will review the trial court’s denial of the defendants’ motion to sever, and reverse only for abuse of discretion. King v. State, 857 So.2d 702, 716 (Miss.2003).

¶ 11. Both this Court and the United States Supreme Court have recognized the appropriateness and importance of joint trials. Cavett v. State, 717 So.2d 722, 727 (Miss.1998) (citing Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (“Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability- — -advantages which sometimes operate to the defendant’s benefit.”)). Defendants jointly indicted for a felony are not entitled to separate trials as a matter of right. Price v. State, 336 So.2d 1311, 1312 (Miss.1976).

¶ 12. “[T]he decision whether to grant a severance depends on whether the severance is necessary to promote a fair determination of the defendant’s guilt or innocence.” Carter v. State, 799 So.2d 40, 44 (Miss.2001) (citing Stevens v. State, 717 So.2d 311, 312 (Miss.1998)). The trial court must consider a number of criteria when ruling on a motion to sever:

These criteria are whether or not the testimony of one codefendant tends to exculpate that defendant at the expense of the other defendant and whether the balance of the evidence introduced at trial tends to go more to the guilt of one defendant rather than the other. Absent a showing of prejudice, there are no grounds to hold that the trial court abused its discretion.

Hawkins v. State, 538 So.2d 1204, 1207 (Miss.1989) (citing Duckworth v. State, 477 So.2d 935, 937 (Miss.1985)).

¶ 13. The defendants frame their assignment of error in two parts, both of which are addressed as follows.

I. Denial of the defendants’ motion to sever

¶ 14. Both defendants assert the trial court erred in denying their motion to sever. Both defendants also repeatedly argue the trial court was informed that an integral part of their individual defenses would be the casting of blame and culpability for the crash toward the other. Therefore, they say, the trial court improperly refused to sever the trial.

¶ 15. There are two Duckworth factors to be considered by a trial court when determining whether or not to sever a trial: (1) whether the testimony of one co-defendant tends exculpate that defendant at the expense of the other, and (2) whether the balance of the evidence tends to go more to the guilt of one defendant than the other. 477 So.2d at 937. The overarching consideration when evaluating these factors is whether the defendants would be prejudiced by a joint trial. Id. Sanders focuses on the first factor, while Johnson primarily relies on the second. However, both defendants’ arguments fail to establish that either defendant was prejudiced by the joint trial. King, 857 So.2d at 716.

A Co-defendants’ testimony

¶ 16. Sanders asserts that her testimony — that she was less than a voluntary participant in the shoplifting spree prior to the fatal wreck — exculpated herself at Johnson’s expense. Sanders also claims that she was coerced into going to Alabama by Johnson, told to drive after hiding out from the police in Mussel Shoals, and ordered to continue driving after the police gave chase. Finally, Sanders testified that Johnson pinned her against the accelerator and controlled the vehicle during most of the chase, so her actions were done under duress.

¶ 17. Johnson does not provide any specific examples of how her testimony exculpated her at Sanders’s expense. She generally alleges that the “statements given by each co-defendant to the police subsequent to their arrest” and the strategy of assessing more blame on the other for the crash demonstrate the exculpatory nature of each defendant’s testimony. Her argument under the second Duckworth factor — that she was not the person who crashed the car — may also be .evaluated under the exculpatory testimony factor.

¶ 18. The State argues that the defendants did not actually offer any exculpatory evidence. In fact, “both women virtually confessed to the crime during their testimonies, thus inculpating themselves.” Both testified to their own guilt, as well as to the guilt of the other. Each consented to and performed acts that were part of the crime, making them principals acting in concert. Because they aided and abetted each other, neither defendant exculpated herself or inculpated the other.

¶ 19. We find merit in the State’s position on this factor. Sanders says our decision in Hawkins implies that any conflict of interest created by a co-defendant’s testimony necessitates severance. However, there are numerous factual differences between Haivkins and the case at bar. In finding that severance was required in Hawkins, the Court based its decision on the following scenario:

Hawkins did not testify in his own defense, he opted to rest after the State’s case. At that point in the trial the State’s witness Ms. Brown had identified both Hawkins and [his co-defendant] Amos as the robbers. Amos then proceeded to testify stating he was not in the store but that Hawkins had gone back to the store. This testimony tends to exculpate Amos at the expense of Hawkins. The jury now has to weigh Amos’ credibility against Ms. Brown while Hawkins’ silence is detrimental in light of Amos’ testimony. Also Amos’ testimony disrupts the balance of evidence. His testimony helps corroborate Ms. Brown’s testimony that Hawkins was in the Charter Food Store.

538 So.2d at 1207 (emphasis added). In this case, both defendants testified on their own behalf, and neither of them denied participation in the activities leading up to the crash. Each defendant’s testimony merely sought to lessen her personal responsibility for the crime.

¶ 20. Joint trials that violate this factor tend to involve co-defendants with inconsistent defenses. For example, in Tillman v. State, 606 So.2d 1103, 1106 (Miss.1992), overruled in part on other grounds by White v. State, 785 So.2d 1059, 1061 (Miss.2001), Tillman testified that he was not even with his co-defendants, Stevenson and Campbell, on the night of the burglary, but that they had borrowed his truck. Tillman also testified that he later found the stolen merchandise at his house and told Stevenson and Campbell to take the items elsewhere. Id. Stevenson, on the other hand, testified that he had not borrowed Tillman’s truck for any purpose and was in fact at a friend’s house the night of the burglary. Id. The Court found that Tillman’s and Stevenson’s defenses were directly in conflict, leaving the jury with the impression that both were lying. Id. Therefore, the trials should have been severed. Id. See also Stevens, 717 So.2d at 312-13 (defendant was prevented from raising a defense because of an order in limine based on his co-defendant’s motion; inability to raise a defense because of the joint trial required severance upon remand).

¶ 21. In only one case has this Court found that mere blame-shifting, rather than a defendant’s attempt to fully exculpate himself at his co-defendant’s expense, necessitated severance. See Payton v. State, 785 So.2d 267, 269-70 (Miss.1999). Like many other severance cases, though, Payton involved co-defendants with completely inconsistent defenses: one defendant denied the allegations against him altogether while the other admitted some involvement but primarily laid blame with his co-defendant:

Payton was prejudiced by [his co-defendant] Marshall’s testimony and defense strategy in general. This strategy was an attempt by co-defendant Marshall through his testimony and that of his witness to mitigate his potential dual life sentences by shifting as much blame as possible to Payton, whose defense was a general denial of the allegations. While it is true that Marshall did not attempt to fully exculpate himself, the blame-shifting is apparent. As the Court of Appeals dissent pointed out, Marshall’s defense was successful to Payton’s detriment as evidenced by the disparity in sentencing verdicts.

Id. (Emphasis added).

¶22. In this case, both Sanders and Johnson testified as to their own guilt as well as to the guilt of the other. Neither of them denied shoplifting, fleeing the police afterwards, or crashing into the victims’ car. No one was prevented from raising a defense based on the joint trial, and their defenses were not inconsistent with one another. Additionally, both Sanders and Johnson received the same sentence.

¶23. Sanders’s attempt to establish a defense of duress is irrelevant, as longstanding Mississippi law holds that duress is not a legal defense to murder. Watson v. State, 212 Miss. 788, 793, 55 So.2d 441, 443 (1951). Additionally, Johnson’s defense that, although she and Sanders were acting in concert, she really wished Sanders would have stopped is equally feeble given the evidence produced at trial. Neither defendant offered any testimony exculpating herself at the other’s expense. Each testified as to her own guilt, as well as to the guilt of her co-defendant. The defendants have not shown the trial court abused its discretion based on the first Duckworth factor.

B. Balance of the evidence

¶ 24. We must also evaluate whether the balance of the evidence goes more to the guilt of one defendant. Sanders does not specifically address this Duckworth factor, but Johnson heavily relies on it. Johnson points to the fact that Sanders was driving the car at the time of the crash. Johnson also notes that Sanders was the person operating the car in a reckless manner, traveling at high rates of speed, and disregarding traffic devices. As such, the balance of the evidence introduced at trial obviously points more to the guilt of Sanders than Johnson.

¶ 25. The defendants ignore crucial language in their indictment. Each of the three counts of the indictment states that Sanders and Johnson

did wilfully, unlawfully, and feloniously without authority of law kill [the victims], while in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of [the victims], in that they, while acting in concert with each other, did drive at an excessive speed, did refuse to stop while being pursued by law enforcement officers, and did run through a stop light crashing into the car that [the victims] occupied, in violation of Mississippi Code, Annotated, Section 97 — 3—19(l)(b).

(Emphasis added).

¶26. The evidence introduced at trial clearly went equally to the guilt of both defendants. Testimony by the defendants and Dile established that the shoplifting spree originated with Johnson, and all three women voluntarily participated because Sanders and Johnson needed the money. The women “hit” at least five stores during their trip using a specialized scheme in which each one played a crucial part. See Blanks v. State, 451 So.2d 775, 777 (Miss.1984) (witness testified implicating both co-defendants, as well as himself, in the planning and commission of the crime; thus, there was no prejudice because the evidence introduced at trial went to the guilt of both defendants).

¶ 27. After getting caught at the Mussel Shoals Wal-Mart, Johnson drove the getaway car. Although Johnson told Sanders to drive the car after the three left their hiding spot, Sanders voluntarily agreed to get behind the wheel. When the high speed chase began, Sanders recklessly evaded police by running through stop signs, red lights, and stationary and rolling roadblocks. During this time, Johnson was consulting a road map. According to Dile’s testimony, Johnson repeatedly yelled at Sanders to keep going and commented on the fact that both she and Sanders were on probation and would go to jail if caught with the stolen merchandise.

¶ 28. Although Sanders argues that Johnson had taken control of the car, this claim is refuted by Dile and the police officers in pursuit, who saw no struggle whatsoever in the fleeing vehicle. In fact, several witnesses testified to seeing Sanders smoking cigarettes while driving and Johnson chatting on her cell phone. Additionally, Sanders contradicted herself during her testimony, often acknowledging that she had control of the car during several parts of the chase. However, Johnson did admit to taking control of the vehicle in order to pass the semis driving side-by-side and blocking the lanes, thus prolonging the defendants’ attempt at escape.

¶ 29. While Sanders was the driver during the high speed chase, the evidence introduced at trial demonstrated that Johnson at all times was working in concert with her to steal merchandise and escape the police. “Therefore, ‘where all the evidence at trial went to the guilt of both appellants and not to one more than the other,’ it is not error to try the defendants jointly.” Johnson v. State, 512 So.2d 1246, 1254 (Miss.1987) (quoting Blanks, 451 So.2d at 777). See also Gossett v. State, 660 So.2d 1285, 1290 (Miss.1995) (“The balance of the evidence demonstrated that both defendants separately shot Hunter implicating them equally in the murder.”).

¶ 30. Given the breadth and depth of the evidence against each defendant, we cannot say the trial court abused its discretion in refusing to sever the trial. Significantly, even if this Court should find that each defendant had exculpated herself at the expense of the other, “[a]bsent a showing of prejudice, there are no grounds to hold that the trial court abused its discretion.” Hawkins, 538 So.2d at 1207. The evidence against both Sanders and Johnson was overwhelming. They were caught at the site of the crash with the stolen merchandise, and both made admissions of active participation in the crime. Separate trials would not have altered the outcome of this trial. See King, 857 So.2d at 716 (without a showing of prejudice, there are no grounds upon which to hold the trial court in error).

II. Failure of the trial court to sua sponte sever the case

¶ 31. Defendants also argue the trial court erred by not sua sponte ordering the trial to be severed. This assignment of error appears to be the defendants’ fallback position should this Court find that they did not pursue their motion to sever to decision as required by URCCC 2.04. Alternatively, the defendants might have made this argument out of concern for the potentially deficient record they provided to the Court. See Acker v. State, 797 So.2d 966, 971 (Miss.2001) (“Our law is clear that an appellant must present to us a record sufficient to show the occurrence of the error he asserts and also that the matter was properly presented to the trial court and timely preserved.”). Regardless, this issue is meritless based on our discussion in Part I. The defendants failed to demonstrate that the trial court abused its discretion by not severing their trial. Therefore, the trial court cannot be put in error for failing to sua sponte sever the trial when it was not required to do so even upon a proper motion.

CONCLUSION

¶ 32. The defendants have not shown that they suffered prejudice as a result of the joint trial. There is no evidence that the trial court abused its discretion in denying the defendants’ motion to sever and motion for new trial. Finally, the trial court was in no way required to sua sponte sever the trial. Therefore, the trial court did not err in denying both motions. We affirm the trial court’s judgment.

¶ 33. AS TO TORRI L. SANDERS: COUNT I: CONVICTION OF DEPRAVED HEART MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THIS SENTENCE SHALL RUN CONSECUTIVELY TO COUNTS II AND III OF THIS CAUSE. COUNT II: CONVICTION OF DEPRAVED HEART MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THIS SENTENCE SHALL RUN CONSECUTIVELY TO COUNTS I AND III. COUNT III: CONVICTION OF DEPRAVED HEART MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THIS SENTENCE SHALL RUN CONSECUTIVELY TO COUNTS I AND II. AS TO SHERRY SUE JOHNSON: COUNT I: CONVICTION OF DEPRAVED HEART MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THIS SENTENCE SHALL RUN CONSECUTIVELY TO COUNTS II AND III OF THIS CAUSE. COUNT II: CONVICTION OF DEPRAVED HEART MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THIS SENTENCE SHALL RUN CONSECUTIVELY TO COUNTS I AND III. COUNT III: CONVICTION OF DEPRAVED HEART MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THIS SENTENCE SHALL RUN CONSECUTIVELY TO COUNTS I AND II.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY, CARLSON, GRAVES AND RANDOLPH, JJ., CONCUR.

      . Johnson had been convicted of theft and was on probation. Sanders had been convicted of DWI and possession of a Schedule IV controlled substance and was on probation.

      . The defendants state in their Notice of Appeal that they are appealing from the trial court’s denial of their joint Motion for New Trial, wherein the issue of severance was listed as one ground for requesting a new trial. Although we have not been presented with an order denying the original Motion to Sever, we will nonetheless consider the merits of the defendants' assignment of error based on the denial of the Motion for New Trial.

      . URCCC 2.04 states:
      It is the duty of the movant, when a motion or pleading is filed, including motions for a new trial, to pursue said motion to hearing and decision by the court. Failure to pursue a pretrial motion to hearing and decision before trial is deemed an abandonment of that motion; however, said motion may be heard after the commencement of trial in the discretion of the court.