author: RANDOLPH, Justice,

text:
    LONG BEACH AUTO AUCTION, INC. v. UNITED SECURITY ALLIANCE, INC.
    No. 2005-CA-00729-SCT.
    Supreme Court of Mississippi.
    Aug. 17, 2006.

      John Paul Barber, William E. Whitfield, III, Gulfport, attorneys for appellant.
    Michael Andrew McDonald, James William Williams, Lauren Carson Williams, attorneys for appellee.
    Before WALLER, P.J., CARLSON, and RANDOLPH, JJ.
   RANDOLPH, Justice,

for the Court.

¶ 1. On December 20, 2001, Long Beach Auto Auction, Inc. (“LBAA”) and United Security Aliance, Inc. (“United”) entered into an agreement for United to install and operate a video surveillance system at LBAA’s auction facility. On January 8, 2002, the system was installed. Following installation of the equipment, finalization of formal agreements, and LBAA’s payment of the security deposit and first month’s lease payment, United provided its warranty agreement to LBAA. The warranty required written acceptance by LBAA and contained a forum selection clause limiting jurisdiction to Florida courts and sole venue to Hillsborough County, Florida. LBAA signed United’s warranty on January 15, 2002.

¶ 2. Thereafter, LBAA alleges the system failed to operate properly, and after several unsuccessful attempts to contact United to void the agreement, it filed a complaint against United in the Circuit Court of the First Judicial District of Harrison County, Mississippi, on June 25, 2004. LBAA’s complaint alleged, inter alia, that United was guilty of (1) breach of contract; (2) breach of express warranty; (3) breach of implied warranty of merchantability; and (4) breach of implied warranty of fitness for a particular purpose. LBAA’s certified letter containing the summons and complaint, along with discovery requests, was mailed to United on June 25, 2004. Within the discovery requests was “Request for Admission No. 1,” which asked United to admit that jurisdiction was proper in the Mississippi court. LBAA received a domestic return receipt of the certified letter, signed by Donna Moon. United did not file responsive pleadings or respond to discovery requests. LBAA sent a second summons with a copy of the original complaint to United on July 29, 2004. United responded by filing a motion to dismiss on September 8, 2004, contesting the Mississippi court’s jurisdiction, relying on the forum selection clause contained in its warranty.

¶ 3. On January 13, 2005, the circuit court granted United’s motion and dismissed the action without prejudice. Following denial of its motion for reconsideration, LBAA filed this appeal.

FACTS

¶ 4. In December 2001, LBAA and United entered into negotiations for United to install a video surveillance system at LBAA’s auction facility in Long Beach, Mississippi. On December 18, 2001, LBAA paid $1,495.86 to United for a security deposit and first month’s payment on the system. On December 20, 2001, the agreement was finalized as LBAA financed the transaction by entering into three-year lease agreements for the equipment through three separate companies. On December 20, 2001, J. Terry Ottinger, United’s President, wrote to M.C. Morris of LBAA, stating that “[y]our business not only will benefit from 15 years of experience, specializing in the design and installation of Closed Circuit Television Systems, but you will also enjoy our ‘World Class’ service and warranty program combined with the best overall value available anywhere.”

¶ 5. The system was installed on January 8, 2002. However, United did not provide its “Exclusive CCTV System Warranty,” until January 15, 2002. According to Bryan Morris, an LBAA manager, “[b]y the time I received the Express Warranty form, [LBAA] had already entered into the lease agreement and paid the security deposit and first months rent on the system.” (Emphasis added). The warranty contained this forum selection clause:

[t]he undersigned mutually agree this warranty is offered by [United Security] a Florida Corporation in accordance with the Laws of the State of Florida, therefore any dispute whatsoever arising from this agreement or any other agreement between the parties shall be the subject matter jurisdiction of the Courts of the State of Florida and it is specifically agreed that venue shall be proper solely in Hillsborough County, Florida.

(Emphasis added). Although the warranty was issued by United, it had a signature line for the purchaser/lessor of the equipment warranted.

¶ 6. Thereafter, LBAA alleges that the system repeatedly failed to operate properly. On September 3, 2003, LBAA wrote to United complaining of defects in the system and “requesting] that the equipment be removed and that all contracts ... be cancelled.” After no response from United, LBAA wrote to United on November 11, 2003, stating:

[w]e have not heard from you since [September 3, 2003], and continue to be plagued with difficulties and inconveniences of the equipment that [LBAA] purchased from your firm.... On behalf of [LBAA], demand is hereby made that the equipment installed by your firm be immediately removed and that an appropriate adjustment be made with American Express on their continued efforts to collect from LBAA.

¶ 7. Still receiving no response from United, LBAA filed a complaint against United in circuit court. That same day, a certified letter was sent to Ottinger containing the summons and complaint, the combined interrogatories, requests for production of documents, and requests for admissions. “Request for Admission No. 1” reads, “[p]lease admit that the Circuit Court for the First Judicial District of Harrison County, Mississippi has jurisdiction of the parties and the subject matter of this lawsuit.” On June 28, 2004, a domestic return receipt of LBAA's certified letter was executed by Donna Moon, an employee of United.

¶ 8. After receiving no response from United, LBAA sent another summons and complaint to United on July 29, 2004. In this instance, the record does not reveal the service of the accompanying discovery requests. On August 11, 2004, the summons was served upon United. United filed a motion to dismiss challenging venue and jurisdiction. LBAA filed a response and motion to stay motion to dismiss pending discovery on jurisdiction and venue issues. LBAA asserted that it “has propounded discovery relative to jurisdictional and venue issues and [United’s] response to this discovery is due on September 27, 2001” (Emphasis added). On September 27, 2004, United filed a motion to quash and objection to discovery requests asserting “[i]n the event that the Court determines that [United’s] response to the Request for Admissions is due on September 27, 2004,” United “hereby denies each and every Request for Admission propounded on it by [LBAA].”

¶ 9. United’s motion to dismiss was granted, and the action was dismissed without prejudice. The circuit court found:

[t]he Warranty Agreement which is part of the contract entered into between the parties contains a forum selection clause. By signing the agreement the parties stipulated that any dispute arising between them relative to this system would proceed in Florida state court with venue in Hillsborough County, Florida. There was no showing that this agreement was fraudulent or overreaching and therefore it will be upheld. See Tel-Com Mgmnt., Inc. v. Waveland Resort Inns, Inc., 782 So.2d 149, 153 (Miss.2001). The Court finds there is no need for discovery on this issue. It is therefore, ORDERED AND ADJUDGED, that the Motion to Dismiss of [United Security] is granted and the complaint is dismissed without prejudice.

After denial of its motion for reconsideration, LBAA filed this appeal.

ISSUES

¶ 10. LBAA raises four issues:

(1) Whether United waived the choice of forum clause and consented to jurisdiction in the circuit court by failing to respond to certain Requests for Admission served by LBAA?
(2) Whether a choice of forum clause in the express warranty issued by United operates to deny LBAA’s access to Mississippi Courts for lack of in personam jurisdiction over United?
(3) Alternatively, whether discovery is needed to determine the enforceability and/or applicability of the forum selection clause to this lawsuit?
(4) Alternatively, whether the choice of forum clause in the express warranty is supported by consideration sufficient to make it applicable to the entire agreement of the parties and thus to all of LBAA’s claims or whether it is limited only to breach of express warranty claims?

This Court finds Issue (2) to be dispositive and addresses only that issue.

STANDARD OF REVIEW

¶ 11. “[I]ssues pertaining to the interpretation and enforcement of a forum selection clause should be deemed to be questions of law and subject to de novo review.” Titan Indem. Co. v. Hood, 895 So.2d 138, 145 (Miss.2004) (emphasis added).

ANALYSIS

Whether a choice of forum clause in the express warranty issued by United operates to deny LBAA’s access to Mississippi Courts for lack of in personam jurisdiction over United?

¶ 12. The forum selection clause states, in part:

any dispute whatsoever arising from this agreement or any other agreement between the parties shall be the subject matter jurisdiction of the Courts of the State of Florida and it is specifically agreed that venue shall be proper solely in Hillsborough County, Florida.

¶ 13. Forum selection clauses are “presumptively valid and enforceable,” unless the resisting party can show:

(1) Its incorporation into the contract was the result of fraud, undue influence or overweening bargaining power;
(2) The selected forum is so gravely difficult and inconvenient that the resisting party will for all practical purposes be deprived of its day in court; or
(3) The enforcement of the clause would contravene a strong public policy of the forum in which the suit is brought, declared by statute or judicial decision.

Id. at 146 (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-13, 92 S.Ct. 1907, 1914, 1916-17, 32 L.Ed.2d 513 (1972) (emphasis added)). Moreover, “the resisting party bears the burden of showing that the enforcement of the clause is unreasonable.” Titan Indem., 895 So.2d at 146 (citing Zapata, 92 S.Ct. at 1917).

¶ 14. United asserts that fraud was first raised by LBAA in its response to the motion to dismiss and motion to stay motion to dismiss pending discovery on jurisdiction and venue issues, filed on September 22, 2004, and has yet to be pled with particularity. See Miss. R. Civ. P. 9(b). Assuming arguendo that the fraud claim is properly raised, United maintains that the forum selection clause is enforceable because it was clearly stated in a warranty agreement which was signed by both LBAA and United. United argues that there was no overweening bargaining power because both parties were commercial entities freely entering into an agreement.

¶ 15. LBAA persuasively posits that United “fraudulently inserted the forum selection clause into the express warranty document ... weeks after the parties had finalized their agreement for leasing the surveillance system and United had installed the defective surveillance system” and it was “contractually bound in the financing agreements and had no bargaining leverage to negotiate the terms of the express warranty.” LBAA has amply satisfied the burden of showing enforcement of the clause to be unreasonable. The undisputed facts that the system had previously been installed, leases were finalized and enforceable, and the deposit and first month’s rent had been paid, all before LBAA was given the warranty, are more than sufficient to overcome the presumptive validity and enforceability of the forum selection clause, as LBAA was a victim of United’s overweening bargaining power. There was no meaningful opportunity to object to the forum selection clause.

¶ 16. The circuit court cited Tel-Com as the basis for its decision to enforce the forum selection clause. Tel-Com held:

[t]he contract in the present case consisted of only two pages, and it was signed by the president of Wave-land .... The contract between the parties in the present case and the record show no signs of fraud, unfair dealing, or overreaching on the part of either party. Instead, the record reflects a commercial contract made between two commercial parties for their mutual benefit. ... The forum selection clause did not include a separate heading entitled ‘Forum Selection Clause,’ yet the language of the clause was not in fine print. It was included in the same manner as the other paragraphs of the contract on the second page. Both parties contracted at arm’s length. If Waveland found the terms of the forum selection clause objectionable, it had ample time to object and negotiate for more favorable terms.

782 So.2d at 152-53 (emphasis added).

¶ 17. Here, the warranty was signed by two commercial parties via their respective representatives. Moreover, the form leaves no doubt regarding its substance, i.e. the presence of a forum selection clause. However, there are glaring distinctions between this case and Tel-Com, which this Court cannot ignore. Here, the system had been installed, the lease agreements concluded and binding, consideration passed with the deposit and first month’s rent paid, all before the warranty was delivered. The window of opportunity to negotiate more favorable terms was already closed. Refusal to sign would leave the purchaser/lessor with no written express warranty. At this juncture, United possessed overweening bargaining power to effect its will regarding forum selection. Therefore, this Court conclusively finds the forum selection clause violates the first prong of the Zapata test.

CONCLUSION

¶ 18. For these reasons, this Court concludes the forum selection clause is unenforceable. Accordingly, this Court reverses the circuit court’s order of dismissal and remands this case to the Circuit Court of the First Judicial District of Harrison County for further proceedings consistent with this opinion.

¶ 19. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY AND CARLSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DICKINSON, J., NOT PARTICIPATING.

      . The letter and attachments were served by first class mail, postage prepaid, and required a return receipt according to Melissa Towns-ley, a secretary at the law firm representing LBAA.

      . Ottinger was United's registered agent.

      . Notice of service was filed in the circuit court on June 25, 2004, pursuant to Uniform Local Rule 6(e)(2), providing that United was served by mail with combined interrogatories, requests for production of documents, and requests for admissions. The notice to defendant of summons and complaint sent to United on June 25, 2004, was filed on July 8, 2004.

      . The Notice to Defendant of Summons and Complaint sent to United on July 29, 2004 was filed on August 31, 2004.

      . According to Ottinger:
      [o]n August 11, 2004, I was served with the Complaint and the exhibits attached thereto by [LBAA] in the [circuit court]. However, I did not receive discovery requests of any kind whatsoever at the time the Complaint was served nor have I received any discovery requests from [LBAA] or its counsel at any time thereafter.


source: Caselaw Access Project

author: COBB, Presiding Justice,

license: Public Domain

text:
    Kenneth J. WILSON, Jr. v. STATE of Mississippi.
    No. 2004-KA-01141-SCT.
    Supreme Court of Mississippi.
    Aug. 17, 2006.

      Leslie D. Roussell, Laurel, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before COBB, P.J., EASLEY and DICKINSON, JJ.
   COBB, Presiding Justice,

for the Court.

¶ 1. Kenneth J. Wilson, Jr., was convicted in the Jones County Circuit Court, Second Judicial District, of murder and aggravated assault and sentenced to life plus twenty years under the supervision of the Mississippi Department of Corrections. On appeal, Wilson assigns five errors: denial of his six motions to suppress confessions; failure to give the jury an instruction defining deliberate design; failure to grant his request for JNOV and/or a new trial; failure to give a two-theory instruction to the jury; and cumulative error. Finding no reversible error, we affirm Wilson’s conviction and sentence.

FACTS

¶ 2. The events giving rise to this appeal began on the evening of July 2, 2003. Officer Tyrone Keller was called to a domestic disturbance at the home of Rika Carmichael, which she shared with Wilson, his live-in girlfriend Lisa Williams and her two children — Michael D’Anthony Williams and a younger son. Wilson and Lisa had an argument which resulted in Wilson pushing Lisa into a television, and Keller asked Wilson to leave the house. Wilson then went to Lisa’s mother’s home nearby, in an attempt to work out the problems he was having with Lisa. Another argument broke out, and Keller was again called to the scene. After this second incident, Keller did not arrest Wilson, but took him in his patrol car to the Laurel Police Department where Wilson’s parents picked him up around 10:00 P.M.

¶ 3. Wilson arrived back at Lisa’s home around 11:00 P.M. and knocked on the door, but she would not unlock it to let him in. Wilson became angry, broke the glass of the door with his fist, unlocked it, entered the home and started punching Lisa in the face. A fierce fight erupted when household members, including Lisa’s son Michael, came to her defense. Wilson tossed Lisa to the floor and continued to beat her in the face with his fists, while Rika ran to call the police from a neighbor’s home. While Lisa was on the floor, Wilson grabbed a knife from the nearby counter, stabbed her fourteen times, and inflicted eleven slash wounds and one chop wound. Three of those wounds were fatal and Lisa bled to death within minutes. While attempting to defend his mother, Michael was stabbed once in the forehead and once in the leg by Wilson.

¶ 4. The police arrived shortly after the fight ended and found Wilson on the front porch with the knife still in his hand and blood covering his clothing. A standoff between the police and Wilson ensued, during which Wilson stabbed himself several times before the police disarmed him. He was taken into custody and transported to a nearby hospital for treatment of wounds suffered to his arms and hands. During this time Wilson made incriminating statements to the police.

DISCUSSION

I. WILSON’S CONFESSIONS

¶ 5. Wilson asserts that his confessions to the police were involuntary and the product of custodial interrogations conducted without proper Miranda warnings. He filed six motions in limine requesting that statements either given directly to the police or in police presence be suppressed. Further, Wilson argues that the trial court erred by not conducting an Agee hearing to determine the voluntariness of his confession.

¶ 6. The relevant facts begin when the police arrived following the final altercation between Wilson and Lisa. As the police were leading Wilson from the house, but prior to placing handcuffs on him, he began making statements regarding his guilt. He continued to make statements to the police as they were placing handcuffs on him and even as he was being read his Miranda rights. One of the arresting officers interrupted Wilson, loudly saying “Miranda Miranda” at him in an attempt to silence him. Wilson’s statements were captured on a video camera mounted on Officer Keller’s patrol car, as follows:

Officer Tyrone Stewart: Listen before we ask you any questions you must understand your rights. You have the right to remain silent.
Wilson: I know that.
Stewart: Anything you say can be used against you in court.
Wilson: I know that. I did it.
Stewart: You have the right—
Wilson: Guilty
Stewart: — to talk to a lawyer for advice—
Wilson: Guilty
Stewart: — and to have one with you during questioning — •
Wilson: Tyrone, Guilty, Guilty. I don’t need one
Stewart: huh?
Wilson: Guilty
Stewart: Okay. One will be appointed for you by the Court before questioning if you wish, if you wish to answer questions without a lawyer, you can stop answering questions at any time. You also have the right to stop at anytime until you talk to a lawyer, Okay?

Prior to reading Wilson his Miranda rights, the officers did not ask him any questions.

¶ 7. While en route to the hospital, Wilson continued to make statements regarding his guilt. When he arrived at the hospital, he made further statements in the presence of Officer John Cox, who was sent to provide security for Wilson, because the police feared he might become a victim of retribution from Lisa’s family. The next day, when police investigator Earl Reed went to the hospital to photograph wounds to Wilson’s arms and hands, Wilson again made statements to him without being questioned. Later, Reed and another officer interviewed Wilson on videotape, after again reading him his rights and obtaining his signed waiver. In that video, Wilson described the evening’s events in detail and confessed to stabbing Lisa and Michael. Following a hearing where no witnesses were called, the trial judge denied Wilson’s six motions to suppress the above statements.

¶ 8. In order for a confession to be admissible at trial it must have been intelligently, knowingly and voluntarily given, and not a product of police threats, promises or inducements. Manix v. State, 895 So.2d 167, 180 (Miss.2005). In determining whether a defendant’s confession was intelligently, knowingly and voluntarily given the trial court sits as a finder of fact. Glasper v. State, 914 So.2d 708, 716 (Miss.2005). Therefore, this Court will reverse the trial court’s determination only when it was manifestly incorrect. Id. A confession is voluntary when, taking into consideration the totality of the circumstances, the statement is the product of the accused’s free and rational choice. Jacobs v. State, 870 So.2d 1202, 1207 (Miss. 2004). The prosecution bears the burden of showing beyond a reasonable doubt that the confession was voluntary. Glasper, 914 So.2d at 717; Manix, 895 So.2d at 180.

¶ 9. When a defendant claims that the police have induced a confession through coercion the trial court is required to hold a hearing to determine the volun-tariness of that confession. Thorson v. State, 653 So.2d 876, 888 (Miss.1994) (citing Abram v. State, 606 So.2d 1015, 1030 (Miss.1992)). At the hearing, held out of the presence of the jury, the State has the burden of proving the voluntariness of the confession via testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion or offer of reward. Thorson, 653 So.2d at 888.

¶ 10. Wilson asserts that the trial court erred in failing to grant him an Agee hearing because his confession was the product of emotional duress caused by the situation and his need for medical treatment. The video of Wilson’s confessions clearly indicate they were made of his own free will and without inducement by the police. Wilson failed to provide any evidence of coercion, threats or promises made by specific police officers to secure his confessions. Only those officers claimed to have induced a confession by some means of coercion are required to testify at the hearing. Abram v. State, 606 So.2d 1015, 1030 (Miss.1992). Since Wilson failed to name specific officers who coerced him or to cite specific examples of coercion, the hearings conducted by the trial court, were sufficient. This argument is without merit.

¶ 11. Wilson’s argument that he was subjected to custodial interrogation without proper Miranda warnings is also without merit. To be subject to custodial interrogation, one must be both in custody and undergoing interrogation. A subject is in custody when their right to freely leave has been restricted. Roberts v. State, 301 So.2d 859, 861 (Miss.1974). The accused is subject to interrogation when he is questioned by the police or the functional equivalent. Pierre v. State, 607 So.2d 43, 52 (Miss.1992). The functional equivalent is any sort of activity which the police reasonably believe would produce an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

¶ 12. It is clear that Wilson was in custody when he confessed; however, his confessions were not the product of interrogation. The police did not question Wilson until after he was given his Miranda warnings. The statements he made while being arrested, transported to the hospital, and receiving medical treatment were not prompted by police activities; rather, were the product of his own free will. The police did everything in their power to appraise Wilson of his rights. They even went so far as to shout at him, interrupting one of his confessions, to inform him of his rights. We conclude the use of these statements did not violate Wilson’s rights.

II. DELIBERATE DESIGN INSTRUCTION

¶ 13. Wilson argues that the trial court committed reversible error in failing to instruct the jury as to the meaning of deliberate design. Wilson admits that neither party requested that instruction; however, he asserts that under Williams v. State, 729 So.2d 1181, 1184 (Miss.1998), if it was error for the trial court to refuse an instruction defining deliberate design, then it must be error to not give it.

¶ 14. This issue is procedurally barred because Wilson failed to present the instruction to the trial court. Conner v. State, 632 So.2d 1239, 1254 (Miss.1993). Wilson’s argument is also without merit. A trial court is not required to sua sponte instruct the jury or suggest jury instructions in addition to what the parties tender. Id. In Williams, this Court held that it was error for the trial court to refuse to grant this instruction when tendered by the defendant. Williams, 729 So.2d at 1184. However, it is not error when a trial court does not instruct the jury as to deliberate design, when the instruction was not presented by either party. Harris v. State, 861 So.2d 1003, 1017 (Miss.2003); Blocker v. State, 809 So.2d 640, 646 (Miss. 2002).

III. WEIGHT AND SUFFICIENCY OF THE EVIDENCE

¶ 15. Wilson asserts that the failure to grant his request for J.N.O.V. or alternatively, a new trial. He argues that the sufficiency and weight of all the evidence presented at trial cannot sustain a conviction for killing Lisa with deliberate design or intending to cause or caused serious bodily injury to Michaél. Wilson also argues that there was no evidence presented to justify a finding that he was fully aware of his actions and carefully considered their consequences in killing Lisa. Further, he argues that Michael’s injuries did not satisfy the serious bodily injury require: ment of Miss.Code Ann. § 97-3-7(2) and that they were not intentionally caused, rather were the result of negligence in Wilson’s attempt to stab Lisa. Therefore, Wilson argues that he could only be guilty of simple assault and not aggravated assault.

¶ 16. A motion for new trial challenges the weight of the evidence, while a motion for J.N.O.V. challenges the sufficiency. There are two separate standards to be applied in reviewing the weight of evidence and sufficiency of evidence. Hawthorne v. State, 835 So.2d 14, 21 (Miss.2003). With regard to sufficiency of the evidence, reversal can only occur when evidence of one or more of the elements of the charged offense is such that reasonable and fair-minded jurors could only find the accused not guilty. Id. However, with regard to weight of the evidence, we will overturn a jury verdict only when it is so contrary to the evidence presented that to let it stand would sanction an unconscionable injustice. Bush v. State, 895 So.2d 836, 845 (Miss.2005). The power to grant a new trial, on the basis of the weight of the evidence, should be invoked only in exceptional circumstances, when the evidence weighs heavily against the jury’s verdict. Id. In both situations this Court looks at the evidence in the light most favorable to the State and consistent with the verdict. Hawthorne, 835 So.2d at 22. The State is given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Id.

Deliberate Design

¶ 17. Wilson was convicted for Lisa’s murder under Miss Code Ann. § 97-3-19(l)(a) which provides in pertinent part:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
(a) When done with deliberate design to effect the death of the person killed, or of any human being.

This Court has held that malice aforethought, premeditated design and deliberate design all mean the same thing. Hawthorne, 835 So.2d at 19. By definition, malice aforethought and deliberate design are synonymous. Id. This Court has also acknowledged that deliberate design connotes an intent to kill. Id. That being said, deliberate indicates a full awareness of what one is doing and generally implies careful and unhurried consideration of the consequences. Jones v. State, 710 So.2d 870, 877 (Miss.1998). Design means to calculate, plan or contemplate. Id. However, deliberate design to kill a person may be formed quickly and perhaps only moments before the act. Id. Deliberate design, as a matter of law, may be inferred through the intentional use of any instrument which based on its manner of use, is calculated to produce death or serious bodily injury. Id. at 878; Fairchild v. State, 459 So.2d 793, 802 (Miss.1984).

¶ 18. In the present case, Wilson fought with Lisa all day. The police were called to interrupt two domestic disputes previous to the final attack. Wilson broke the door with his bare fists and proceeded to beat Lisa in the face until she was knocked to the floor. Only then did Wilson grab a knife and repeatedly stab and slash Lisa. He delivered three fatal blows while fighting off her son and other household members. This evidence points directly to a considered plan, deliberately executed, with the purpose of killing Lisa. Given these facts and the applicable standard of review, we cannot agree there was insufficient evidence to support the jury verdict, or to let it stand would sanction an unconscionable injustice. Therefore, this argument is without merit.

Substantial Bodily Injury

¶ 19. Wilson was also convicted of aggravated assault on Michael under Miss. Code Ann. § 97-3-7(2) which states:

(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm

Wilson argues that given the result of the crime and the fact that Michael was not the initial intended target of his attack, at most he was guilty of simple assault under Miss.Code Ann. § 97 — 3—7(1). This Court has made it clear from the language of these statutes, aggravated assault and simple assault are carbon copies of each other, with the exception that aggravated assault requires the use of a deadly weapon. Hutchinson v. State, 594 So.2d 17, 19 (Miss.1992). This suggests that conduct which is simple assault under Section 97-3-7(1) becomes aggravated assault under Section 97-3-7(2) when done with a deadly weapon. Id. This is completed when we realize that a subsequent subsection of simple assault includes negligent injury to another with a deadly weapon. Id.

¶ 20. It is indisputable that the large kitchen knife Wilson used to stab Lisa and Michael was a deadly weapon. See Id. at 20. Also there was no evidence presented that Wilson was negligent in the act of stabbing Michael twice, once in the leg and once in the forehead. Both of these injuries required medical attention. Just because the injuries failed to leave permanent and lasting effects on the victim does not mean that the case is automatically one of simple assault. Id. By stabbing Michael with a knife, Wilson’s attack caused a great risk of death. This Court does not require that an aggressor beat his victim “to within an inch of his life in order to be found guilty of aggravated assault.” Fleming v. State, 604 So.2d 280, 292 (Miss.1992). Given these facts and the applicable standard of review, we cannot agree there was insufficient evidence to support the jury verdict or that to let it stand would sanction an unconscionable injustice. This argument is without merit.

IV. JURY INSTRUCTIONS

¶ 21. Wilson asserts that the trial court erred in refusing to give his two-theory jury instruction. However, in claiming error, Wilson only cites generally to a series of cases, without explaining their relevancy. This Court has held that it is the duty of the appellant to point to relevant case law in support of his argument and that failure to do so relieves us of the obligation of addressing the issue. Jones v. State, 841 So.2d 115, 138 (Miss. 2003); Williams v. State, 708 So.2d 1358, 1360-61 (Miss.1998); Pate v. State, 419 So.2d 1324, 1325-26 (Miss.1982).

¶22. Notwithstanding the procedural bar, we address this issue. The trial court refused to give the following jury instruction:

The Court instructs the jury that if the evidence in this case presents two reasonable theories, one tending to indicate that the Defendant is guilty and the other tending to indicate that he is innocent, it is the jury’s duty to accept the theory favorable to the Defendant and to find Kenneth Wilson, Jr., not guilty of the crime of murder.

Wilson asserts this jury instruction is appropriate in all cases and therefore should have been given in this case. He further argues that, because his theory of the case included an assertion of self-defense, the evidence presented against him was circumstantial therefore requiring this instruction.

¶23. This Court has stated that two-theory instructions should only be given in cases based entirely on circumstantial evidence. State v. Rogers, 847 So.2d 858, 863 (Miss.2003). We have defined circumstantial evidence as that which, without going directly to prove the existence of a fact, gives rise to a logical inference that such a fact exists. Id. A circumstantial evidence case is one in which there is neither eyewitness testimony nor a confession to the crime. Id. As is clear in this case there were several eyewitnesses and Wilson repeatedly confessed to the crime. Therefore, the trial court did not err in refusing this instruction.

V. CUMULATIVE ERROR

¶ 24. Wilson asserts that the cumulative impact of the trial court’s errors denied him due process and therefore requires reversal. A criminal defendant is entitled to a fair trial and not a perfect trial. Sand v. State, 467 So.2d 907, 911 (Miss.1985). However, even though not reversible in themselves, the cumulative impact of non-reversible errors may, in our discretion, require reversal. Byrom v. State, 863 So.2d 836, 847 (Miss.2003). In the present case Wilson has been unable to show to this Court any error, either reversible or harmless. The lack of demonstrable error indicates that there is no need to consider its cumulative impact. Therefore, Wilson’s argument is without merit.

CONCLUSION

¶ 25. We find no merit to Wilson’s assignments of error and affirm the trial court’s judgment.

¶ 26. COUNT 1: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS WITH FIVE (5) YEARS TO SERVE AND FIFTEEN (15) YEARS SUSPENDED UPON SUCCESSFUL COMPLETION OF FIVE (5) YEARS POST RELEASE SUPERVISION IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH THE SENTENCE IMPOSED IN COUNT I.

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

      . When objection is made to the introduction of the confession, the accused is entitled to a preliminary hearing on the question of the admissibility of the confession. This hearing is conducted in the absence of the jury. When, after the State has made out a prima facie case as to the voluntariness of the confession, the accused offers testimony that violence, threats of violence, or offers of reward induced the confession, then the State must offer all the officers who were present when the accused was questioned and when the confession was signed, or give an adequate reason for the absence of any such witness. Agee v. State, 185 So.2d 671, 673 (Miss. 1966).

      . Miss.Code Ann. § 97-3-7(1) states in part:
      "(1) A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.”


author: BRIDGES, J.,

text:
    Dextor Latroy JORDAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-02057-COA.
    Court of Appeals of Mississippi.
    Nov. 8, 2005.
    Rehearing Denied Jan. 17, 2006.

      Imhotep Alkebu-Lan, Chokwe Lumum-ba, Jackson, attorneys for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   BRIDGES, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. The Circuit Court for the Second Judicial District of Hinds County tried Dexter Latroy Jordan on two charges of kidnaping, two charges of sexual battery and one charge of rape. On November 6, 2002, the jury found Jordan guilty of all five counts. The circuit court sentenced Jordan to a one hundred sixty (160) year term in the Mississippi Department of Corrections. Jordan filed unsuccessful motions for a directed verdict, for judgment notwithstanding the verdict, and for a new trial. Aggrieved, Jordan appeals and raises three issues, listed verbatim:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED JORDAN’S MOTION FOR DIRECTED VERDICT.
II. THE ONE COUNT OF RAPE AND TWO COUNTS OF SEXUAL BATTERY AND RAPE ARE DUPLICITOUS AND SHOULD HAVE BEEN COMBINED.
III. THE SENTENCE OF ONE HUNDRED AND SIXTY YEARS CONSTITUTE [SIC] CRUEL AND UNUSUAL PUNISHMENT.

Finding no error, we affirm.

FACTS

¶ 2. Jordan was charged with rape and two counts of sexual battery of D.W. Additionally, the State alleged that Jordan kid-naped D.W. and her son, K.W. On July 22, 2000, D. W., a nurse’s assistant at Whitfield Mississippi State Hospital, got off work at 11:30 p.m. Vanessa Green babysat K.W. for D.W.D.W. picked up K.W. and took K.W. to visit his father, Lanthony Smith. Lanthony was going to keep K.W. while D.W. went shopping. D.W. arrived at Lanthony’s apartment in Jackson, Mississippi, shortly after midnight.

¶ 3. D.W. got out of her car and got K.W. out of his car seat. D.W. dropped K. W.’s bottle, so she bent down to pick it up. As she stood up, a man wearing all black and a black ski mask confronted D.W. with á pistol. He ordered D.W. back into her car, and pushed her as she entered her driver’s side door. He put K.W. in the back seat and told D.W. to drive. D.W. complied and left the apartment complex. D.W. proceeded down Lynch Street, avoided a police precinct, and continued towards Springridge Road. The gunman became frustrated at D.W.’s inability to drive the speed limit. When they got to Sprin-gridge Road, the gunman ordered D.W. to pull over. They switched seats and he continued to drive.

¶ 4. The gunman, still threatening D.W. with a pistol, told her to undress. D.W. lost her bearings, but she remembered a sign for “Raymond-Bolton Road.” They eventually ended up in a wooded area in Bolton that D.W. did not recognize. D.W. did remember that she heard running water and that the gunman said he visited that area to fish.

¶ 5. The gunman got out of the car and forced D.W. to join him. The gunman, still wearing the ski mask, put the pistol barrel in K. W.’s mouth. Then the gunman made D.W. perform oral sex. That act led to the first sexual battery charge. The gunman also sodomized D.W. That act led to the second sexual battery charge. Finally, the gunman forced D.W. to have intercourse with him. That act led to the rape charge.

¶ 6. Afterwards, the gunman told D.W. that his name was Bruce Andrews. D.W. promised that she would not turn him in, so Andrews removed his ski mask. D.W. testified that Andrews left the mask and the pistol at the scene of the rape. Then she and Andrews left the wooded area and went to a trailer. According to D. W., Andrews told her to bring $200 to the trailer on the following morning.

¶ 7. Next, Andrews drove D. W.’s car to a BP gas station in Bolton, Mississippi. According to D. W., she was still undressed. They saw two Bolton police officers at the gas station. D.W. testified that Andrews took K. W., put him in a ear parked behind hers, and told D.W. she had better not “do anything stupid.” Then, Andrews spoke to one of the police officers, went inside and paid for D. W.’s gas, and pumped gas into her car. Andrews retrieved K. W., drove D. W.’s car near a pay phone, and told D. W., still undressed, how to get back to Jackson. Andrews then got in a car with another man.

¶ 8. D.W. traveled West on 1-20. Around Clinton, Mississippi, Deputy Trey Brister of the Hinds County Sheriffs Department, stopped D.W. for speeding. D.W. told Deputy Brister what happened, but Deputy Brister testified that D.W. told him the gunman’s name was Michael Green. D.W. never mentioned the name Michael Green during her testimony. She always referred to the gunman as “Bruce Andrews.”

¶ 9. Deputy Brister escorted D.W. to the University of Mississippi Medical Center (UMC) in Jackson. While at UMC, Amy Thweatt, a registered nurse and a sexual assault nurse examiner, performed a rape kit on D.W. That rape kit resulted in a positive identification for semen, but no one performed a DNA analysis to connect that finding to Jordan. D.W. later identified Jordan from a photographic lineup.

¶ 10. Deputy Brister contacted the gas station. Howard Shelby, an off-duty police officer with the Bolton Police Department, was working security at the gas station when D.W. stopped. Officer Shelby was still working when Deputy Brister contacted the gas station. Deputy Brister described Andrews/Green.

¶ 11. Officer Shelby remembered D. W.’s car and Officer Shelby also remembered Andrews/Green. However, Officer Shelby knew Andrews/Green as “Jordan.” Officer Shelby knew where Jordan lived, so he and Officer Richard Dean went to Jordan’s house. When they arrived, Fernando Jones was backing out of Jordan’s driveway and Jordan was walking towards his trailer. The officers blocked Jones’s car and called to Jordan. Jordan ran into the woods behind his trailer and evaded the two officers. However, Jordan turned himself in the next day.

¶ 12. Jordan pled “not guilty” and the matter proceeded to trial. At trial, Jordan claimed that he did not kidnap D.W. or K.W. Jordan said he avoided the two officers because he was on probation and had outstanding traffic tickets. He said he ran from the officers because he did not know what Officers Shelby and Dean wanted. He admitted that he was in D. W.’s car that night, as was K. W., but he claimed that he did not kidnap them. Jordan testified that D. W., his girlfriend, consented to, if not desired, his presence. Jordan claimed that, on previous occasion, he kept K.W. when D.W. needed to leave him with someone.

¶ 13. Jordan claimed that he did not force oral sex, sodomy, or intercourse on D.W. Jordan said he had intercourse with D.W. on that night, but Jordan testified that D.W. consented. According to Jordan, D.W. was his girlfriend at the time, though he had numerous girlfriends.

¶ 14. Jordan presented a “scorned woman” defense. Jordan claimed D.W. invented the charges because she got mad at him. According to Jordan, D.W. wanted Jordan to commit to a monogamous relationship with her and her only. However, Jordan had many girlfriends and did not want to commit. Jordan’s defense strategy centered on the notion that D.W. said she would get even with him for his decision to avoid commitment. Further, the theory of Jordan’s defense rested on the proposition that D.W. invented the charges against him as a method of revenge.

¶ 15. Jordan presented evidence that corroborated his version. Jordan testified that he knew D.W. and K.W. well before the events detailed above. Jordan somehow knew that K.D. suffered from asthma and needed periodic breathing treatments. Police never recovered a pistol or mask that matched those in D. W.’s description. Darlene Jordan, Jordan’s mother, testified that she and D.W. visited Leonie Jordan, Jordan’s maternal grandmother at the same time. Not only that, Darlene testified that Jordan told her he wanted to marry D. W.

¶ 16. Jennifer Jordan, Jordan’s aunt, testified that she saw D.W. and Jordan together in the parking lot of her apartment. Lenore Fox, Jordan’s girlfriend at the time of the trial, testified that she also saw D.W. with Jordan. Finally, Wesley Reeves, an investigator with the Hinds County Sheriffs Office, testified that he could not locate the wooded crime scene in Bolton, though he had the scene confined to a general area.

¶ 17. Nevertheless, the jury weighed the conflicting evidence and found D.W. and the evidence suggesting guilt more credible. As mentioned, Jordan filed an unsuccessful motion for a directed verdict under Rule 50 of the Mississippi Rules of Civil Procedure. In Jordan’s first issue, he asks this Court to review the circuit court’s decision.

ANALYSIS

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED JORDAN’S MOTION FOR DIRECTED VERDICT.

¶ 18. In his first issue, Jordan challenges the circuit court’s decision to overrule his motion for a directed verdict. The State claims Jordan failed to preserve this issue. We address that claim first, because it would be unnecessary to consider the merits of Jordan’s claim if he failed to preserve the issue.

A. Did Jordan Preserve this Issue?

¶ 19. Jordan filed an unsuccessful motion for directed verdict after the State’s case-in-chief. Jordan then presented his case. When a defendant files a motion for directed verdict, then presents his case, that defendant waives his motion for directed verdict. Odem v. State, 881 So.2d 940(¶ 34) (Miss.Ct.App.2004). However, Jordan subsequently filed a motion for judgment notwithstanding the verdict. When a criminal defendant files an unsuccessful motion for a directed verdict, then presents his own evidence, and later files a motion for judgment notwithstanding the verdict, that motion for JNOV preserves the defendant’s challenge of the sufficiency of evidence. Id. at (¶ 36). As such, Jordan preserved his challenge of the sufficiency of the evidence. Next, the State claims Jordan did not specifically object to the sufficiency of the evidence of venue.

B. Did Jordan Object with Sufficient Specificity?

¶ 20. To be sure, a motion for a directed verdict must be specific and not general in nature. Banks v. State, 394 So.2d 875, 877 (Miss.1981). “A motion for a directed verdict on the grounds that the state has failed to make out a prima facie case must state specifically wherein the state has failed to make out a prima facie case.” Id. The same reasoning applies to a motion for JNOV. “In the absence of such specificity, the trial court will not be put in error for overruling same.” Id. This also applies to venue. Failure to object to improper venue amounts to a waiver of the objection. Burnett v. State, 876 So.2d 409(¶ 14) (Miss.Ct.App.2003).

¶ 21. Jordan filed his motion for judgment notwithstanding the verdict on February 4, 2004. By that motion, Jordan claimed (1) “[t]he Court erred in its failure to sustain the motion of Jordan for a directed verdict;” (2) “[t]he jury verdict was against the overwhelming weight of the evidence” and; (3) “Jordan is entitled to judgment notwithstanding the verdict due to the failure of the prosecution to prove a prima facie case on the counts of kidnapping, rape and sexual battery beyond a reasonable doubt[.]”

¶ 22. Clearly, Jordan’s motion is a general objection. His motion never specifically challenges the sufficiency of the evidence of jurisdiction. That is, Jordan did not specifically claim that the prosecution failed to present sufficient evidence of jurisdiction or venue. Jordan’s motion for JNOV is vague and general at best. Thus, this issue is barred. Banks, 394 So.2d at 877. Procedural bar notwithstanding, we find that this issue lacks merit, as well.

C. Did the Trial Court Have Jurisdiction Over Jordan?

¶23. Jordan challenges the sufficiency of evidence of the circuit court’s jurisdiction over him. Jordan references Deputy Reeves’s failure to relocate the crime scene and claims the record lacks testimony or other evidence that he committed a crime in Mississippi. Jordan suggests that the State did not prove that any of the acts charged occurred in Mississippi. As a result, he concludes that no Mississippi court had jurisdiction over him, including the circuit court.

¶24. While reviewing challenges to the sufficiency of the evidence, we are mindful of our standard of review. Appeals from an overruled motion for directed verdict challenge the sufficiency of the evidence. Grihim v. State, 760 So.2d 865(¶ 6) (Miss.Ct.App.2000). In reviewing such a challenge, we consider the evidence in the light most consistent with the verdict. Carr v. State, 656 So.2d 824, 837 (Miss.1995) (quoting Roberson v. State, 595 So.2d 1310, 1318 (Miss.1992)). We give the State the benefit of all favorable inferences that may reasonably be drawn from the evidence. Id. If we conclude that reasonable jurors could not have found beyond a reasonable doubt that Jordan was guilty, then we must reverse Jordan’s conviction. Otherwise, we must affirm. Id.

¶ 25. First, it is helpful to note that there are five charges involved in this case. According to the record, Jordan kidnaped D.W. in Jackson. Jackson is in the First Judicial District of Hinds County. Then Jordan transported D.W. to Raymond, where he raped and sexually battered her. Raymond is in the Second Judicial District of Hinds County. We separate the sufficiency of the evidence according to the charges.

¶ 26. As for kidnaping, “[ejvery person who shall be accused of kidnapping may be indicted and tried either in the county where the offense may have been committed, or in any county into or through which any person so kidnapped or confined shall have been taken while under such confinement.” Miss.Code Ann. § 99-11-13 (Rev. 2000). D.W. testified that Jordan kid-naped her and K.W. in Jackson and took them to Raymond. While Jackson and Raymond are in the same county, three statutory provisions coincide to resolve the matter.

¶ 27. First, judicial districts are treated like counties. McGowan v. State, 742 So.2d 1183(¶ 4) (Miss.Ct.App.1999), and Section 99-11-19 (Rev.2000) of the Mississippi Code refers to offenses committed partly in one county and partly in another. In such an event, “the jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun.” Miss.Code Ann. § 99-11-19 (Rev.2000). Thus, the State could have prosecuted Jordan in either the First or Second Judicial District of Hinds County. Since the State prosecuted Jordan in the Second Judicial District of Hinds County, there was sufficient evidence of the circuit court’s jurisdiction over the kidnaping charges.

¶ 28. As for the rape and sexual battery charges, Section 99-11-37(2) of the Mississippi Code refers to crimes committed in the particular districts of Hinds County. “[A]ll crimes ... committed in Hinds County shall be cognizable in the court of either judicial district of the county, and such court shall have jurisdiction of the same.” Miss.Code Ann. § 99-11-37(2) (Rev.2000). “Any and all proceedings may be conducted in either judicial district.” Id. Accordingly, the State could have prosecuted the rape and sexual battery charges in either the First or Second Judicial District of Hinds County.

¶ 29. Finally, Section 99-11-3(1) of the Mississippi Code addresses venue. According to Section 99-11-3(1), “[t]he local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where committed. But, if on the trial the evidence makes it doubtful in which of several counties, including that in which the indictment or affidavit alleges the offense was committed, such doubt shall not avail to procure the acquittal of the defendant.”

¶ 30. We find no merit to Jordan’s first issue.

II. THE ONE COUNT OF RAPE AND TWO COUNTS OF SEXUAL BATTERY AND RAPE ARE DUPLICITOUS AND SHOULD HAVE BEEN COMBINED.

¶31. In his second issue, Jordan claims the sexual battery and rape charges are duplicitous, giving rise to a double jeopardy violation. Jordan says the elements of rape are the same elements as sexual battery because both require a sex act against a victim’s will.

¶ 32. Double jeopardy consists of three separate constitutional protections. White v. State, 702 So.2d 107(¶ 9) (Miss.1997). “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Id. “The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). There is no merit to Jordan’s claim. The jury found Jordan guilty of one charge of rape and two charges of sexual battery. The rape charge was incident to forced intercourse and the two sexual battery charges followed forced oral sex and sodomy. Rape and sexual battery are not duplicitous. Rape is forcible sexual intercourse. Miss.Code Ann. § 97-3-65(4)(a) (Rev.2000). In the context of rape, “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) (Rev.2000). Sodomy could never qualify with the statutory definition of rape. Likewise, oral sex could never fall within the statutory meaning of rape.

¶ 33. As for sexual battery, “[a] person is guilty of sexual battery if he or she engages in sexual penetration with ... [a]nother person without his or her consent.” Miss.Code Ann. § 97-3-95(l)(a) (Rev.2000). Thus, sexual battery, involves unconsented “sexual penetration.” “Sexual penetration” could include intercourse, sodomy, or fellatio. 97-3-95(l)(a); 97-3-97(a) (Rev.2000). The three charges clearly allege three distinctly separate acts. Accordingly, the charges are not duplicitous and they do not expose Jordan to double jeopardy.

III. THE SENTENCE OF ONE HUNDRED AND SIXTY YEARS CONSTITUTE [SIC] CRUEL AND UNUSUAL PUNISHMENT.

¶ 34. Jordan concedes that he did not object to his sentence at sentencing or in his post trial motion. “If the appellant did not present to the trial court the proposition that his sentence was unconstitutional, he may not assert that allegation on appeal, and it is procedurally barred.” Ivory v. State, 840 So.2d 755(¶ 9) (Miss.Ct. App.2003). Accordingly, this issue is procedurally barred.

¶ 35. Procedural bar notwithstanding, “[sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Coleman v. State, 788 So.2d 788(¶ 12) (Miss.Ct. App.2000). “Further, the general rule in this state is that a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.” Id. Jordan admits that the circuit court sentenced him to the maximum sentence for each count. Since Jordan’s sentence for any one count is not greater than the maximum sentence for that count, this Court may not disturb Jordan’s sentence on appeal.

¶ 36. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT 1 OF KID-NAPING AND SENTENCE OF THIRTY YEARS; COUNT II OF KIDNAP-ING AND SENTENCE OF THIRTY YEARS; COUNT III RAPE AND SENTENCE OF FORTY YEARS; COUNT IV SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS; COUNT V SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS. ALL TO RUN CONSECUTIVELY TO EACH SENTENCE IN EACH COUNT, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


author: LEE, P.J.,

text:
    F.C. CHATMAN, Jr. a/k/a Frank C. Chatman, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-01834-COA.
    Court of Appeals of Mississippi.
    Jan. 17, 2006.
    Rehearing Denied April 18, 2006.
    F.C. Chatman, Jr., Appellant, pro se
    Office of the Attorney General by Billy L. Gore, attorney for appellee.

      Before LEE, P.J., IRVING and CHANDLER, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. F.C. Chatman, Jr., was convicted by a jury in the Lowndes County Circuit Court of armed robbery and aggravated assault. On November 30, 1998, Chatman was sentenced to serve a life sentence for the armed robbery conviction and fifteen years on the aggravated assault conviction. Both sentences were to be served consecutively in the custody of the Mississippi Department of Corrections. Chatman appealed, and the supreme court affirmed his conviction. See Chatman v. State, 761 So.2d 851 (Miss.2000).

¶2. Although not contained within the record on appeal, it appears as if Chat-man filed numerous motions seeking post-conviction relief. In an order dated September 1, 2004, the trial court, after considering Chatman’s post-conviction relief motions, found them to be time-barred. Chatman now appeals to this Court asserting that the lower court failed to comply with his request to review his sentencing hearing.

STANDARD OF REVIEW

¶ 3. The standard of review for a denial of a post-conviction motion is well-stated: The findings of the trial court must be clearly erroneous in order to overturn a lower court’s denial of a post-conviction relief motion. McClinton v. State, 799 So.2d 123, 126(¶ 4) (Miss.Ct.App.2001).

DISCUSSION

¶ 4. We find that Chatman’s appeal was properly dismissed for various reasons, namely that Chatman neither filed his motion in a timely manner nor was he ever granted leave to file a motion for post-conviction relief by the supreme court. According to Mississippi Code Annotated Section 99-39-5(2) (Supp.2005), if a direct appeal is taken, a motion for post-conviction relief must be made within three years after the determination of the appeal. Chatman’s original appeal was decided by the supreme court on June 1, 2000, but nowhere in the record is there mention of a motion for post-conviction relief filed within the three years. There is a docket entry on June 10, 2003, wherein the supreme court denied a motion for enlargement of time to file a post-conviction petition.

¶ 5. Furthermore, Chatman was never granted leave by the supreme court to file a motion for relief in the trial court. Miss. Code Ann. § 99-39-7 (Supp.2005). There are two entries in the docket wherein the supreme court denied Chatman’s application for leave to file his motion for relief in the trial court. We can find nothing in the record giving Chatman permission to file his motion.

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

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


author: IRVING, J.,

text:
    Ellis Wayne WATTS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01872-COA.
    Court of Appeals of Mississippi.
    Feb. 14, 2006.
    Rehearing Denied May 30, 2006.

      William L. Ducker, Purvis, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   IRVING, J.,

for the Court.

¶ 1. Ellis Watts was convicted in the Circuit Court of Lamar County of possession of precursor chemicals with intent to manufacture a controlled substance. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections with five years to be served at the Mississippi Department of Corrections. The remaining ten years were to be served on post-release provisions, with a five-year supervision period. Watts was also ordered to pay a $5,000 fine and to participate in a drug and alcohol treatment program prior to his release.

¶ 2. Feeling aggrieved, Watts appeals and asserts that the trial court erred in (1) overruling his motion to suppress, (2) admitting evidence over his objections, (3) denying his motion for a directed verdict, (4) overruling all objections made by him that were, in fact, overruled, and (5) refusing certain jury instructions that were requested by him.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. Chris Lowe, a deputy with the Lamar County Sheriffs Department, received a telephone call from security at the Wal-Mart store located on Highway 49 in Hattiesburg, Mississippi. The call was to inform Deputy Lowe that an individual in a wrecker, marked “Wayne’s Wrecker,” had purchased two cans of starter fluid. Thereafter, Deputy Lowe set up surveillance at the other Wal-Mart located on Highway 98 in Hattiesburg, Mississippi. Deputy Lowe observed the wrecker pulling into the Wal-Mart parking lot, and he asked Wal-Mart security to inform him of the items which were purchased by the individual driving the wrecker. After being told what the individual had purchased, Deputy Lowe followed the wrecker for a short distance before initiating a traffic stop. The driver of the wrecker, later identified as Ellis Watts, consented to a search of his vehicle. The search of the vehicle uncovered two cans of starter fluid, four boxes of Equate Antihistabs, aquarium tubing, an aquarium pump, and two gas cans. All were items that Watts had just purchased from the two Wal-Marts. Deputy Lowe found the cans of starter fluid concealed under a camouflage net in a tool bucket and the anitihistabs stuffed in the seat under the armrest of the wrecker.

¶ 5. At trial, Deputy Lowe explained that methamphetamine manufacturers often purchase different ingredients at different locations in order to avoid suspicion. Deputy Lowe testified that starter fluid and pseudoephedrine pills are two of various items used to manufacture methamphetamine. Deputy Lowe also testified that after he placed Watts under arrest and read him his Miranda rights, he asked Watts when was the last time that Watts had used methamphetamine. Deputy Lowe stated that Watts told him that he had used methamphetamine the day before.

¶ 6. Based on the statement made about the last time he had used methamphetamine and the items recovered from his vehicle, Deputy Lowe obtained a search warrant for Watts’s residence. At Watts’s home the police discovered a “burn pile,” which is often associated with methamphetamine cooking because it provides a means to dispose of evidence. An empty salt box was found outside, well away from Watts’s kitchen. This was an important discovery because there was testimony that salt is used in the process of cooking methamphetamine. Probably most important was the discovery of two aerosol cans that had been punctured at the bottom. The significance of this discovery is that the punctured holes in the cans is consistent with the process of removing ether for use in methamphetamine cooking.

¶ 7. Archie Nichols, a forensic scientist employed by the Mississippi Crime Laboratory, testified concerning the chemical analysis that he performed on the two cans of starting fluid and four boxes (exactly 192 tablets) tendered to him by the Lamar County Sheriffs Department for analysis. Nichols testified that the cans of starter fluid contained ether, which is one of the components used in the manufacturing of methamphetamine. Nichols also testified that the four boxes of antihistabs contained the active ingredient pseudoephed-rine, which is the main ingredient in methamphetamine. Nichols explained to the jury how salt is used in the cooking process. He also explained that the aquarium pump and tubing, which were found in Watts’s possession, are commonly used in manufacturing methamphetamine. Finally, Nichols testified that he was not sure how the two newly purchased gas cans might have been used but that they could have been used to either store solvents or transfer the product from one container to another.

¶ 8. Jonathan Harless, a lieutenant with the Mississippi Department of Public Safety, Bureau of Narcotics, was qualified as an expert in the illegal manufacture of methamphetamine. Harless explained that methamphetamine manufacturers perform certain tasks to relieve the pressure in ether cans and then puncture neat round holes in the cans to extract the ether from the can. Harless also explained the use of aquarium tubing in the process of manufacturing methamphetamine. Harless testified that it has been his experience that “burn piles” are common at methamphetamine manufacturing sites because they allow methamphetamine manufacturers to burn off incriminating labels. Harless testified that after listening to the testimony about the circumstances under which the items were purchased and the way that they were discovered, in conjunction with what the search of Watts’s residence revealed, it was his opinion, based on his training and experience, that the items Watts purchased were going to be used to manufacture methamphetamine.

¶ 9. Watts, who owned a wrecker service and auto repair shop, testified as to why he was in possession of the various items generally associated with manufacturing methamphetamine. He testified that his two diesel wreckers were being repaired and that the mechanic performing the work informed him that he needed two cans of starter fluid to assist in starting the trucks. This story was corroborated by the testimony of the mechanic who performed the repairs. Watts testified that he was going to use the aquarium tubing and pump as a syphon hose, which was something that he regularly used in his line of business. Watts also testified that he noticed that Wal-Mart had the two gas cans on sale as a bundle package. According to Watts, part of his wrecker services encompassed taking gas to people who had run out of gas; therefore, he was always looking for a deal on gas cans because he could always use more. Watts further testified that he bought two packs of the antihistabs for his “sinus and allergies” without realizing that he already had two packs in his wrecker. Finally, Watts testified that the reason that he went to both Wal-Marts was that one store did not have a particular item that he needed, and he thought that maybe the other store may have had the item.

¶ 10. Additional facts, as necessary, will be related during the discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Motion to Suppress

¶ 11. Watts contends that the trial court erred in overruling his motion to suppress. Watts argues that it was error for the court not to hear his motion in a separate hearing. Watts further argues that he was entitled to an in camera hearing on his motion to suppress either prior to the trial or outside the presence of the jury. Watts maintains that the court erred in deciding first to receive all the evidence and then rule on his motion.

¶ 12. “When this court reviews a trial court’s ruling on a suppression hearing, we must determine whether the trial court’s finding is supported by substantial evidence considering the totality of the circumstances.” Reid v. State, 825 So.2d 701, 702(¶ 5) (Miss.Ct.App.2002). The admissibility of evidence lies within the trial court’s discretion and the trial court will only be reversed if that discretion is abused. Crawford v. State, 754 So.2d 1211, 1215(¶ 7) (Miss.2000). With this standard in mind, we examine Watts’s arguments.

¶ 13. We note from the outset that Watts had a duty to pursue a hearing and decision by the court on his motion to suppress. See URCCC 2.04. Watts does not explain in his brief why the court failed to grant him a hearing on his motion to suppress, and we do not know why the court decided to take this course of action. Nevertheless, 'notwithstanding the fact that the judge did not rule on the motion until near the end of the trial, we find that he did not abuse his discretion because there was substantial evidence to support his ruling. Watts was stopped after law enforcement officials received credible information that he had purchased some precursor chemicals. Based on this information, as we discuss in the second issue below, Deputy Lowe had probable cause to initiate a traffic stop of Watts’s vehicle. Once Watts’s vehicle was stopped, he gave Deputy Lowe permission to search his vehicle. The search uncovered evidence that Watts now seeks to suppress. For these reasons, the evidence should have been admitted, and the trial court properly overruled Watts’s motion to suppress.

¶ 14. The motion to suppress also sought the suppression of Watts’s admission to Deputy Davis that Watts had recently used methamphetamine. Watts argues that Deputy Davis, who was the person that transported Watts to the police station, was not present when Deputy Lowe gave Watts his Miranda warnings. Therefore, according to Watts, Deputy Davis should have given him his Miranda warnings again before he started questioning him about his recent use of methamphetamine. Watts cites Underwood v. State, 708 So.2d 18 (Miss.1998) and Taylor v. State, 789 So.2d 787 (Miss.2001), as support for his contention that his subsequent statement required a subsequent Miranda warning or, at the least, that Deputy Davis should not have been allowed to rely on the warning given by Deputy Lowe. However, the Mississippi Supreme Court has stated:

[N]either Underwood nor Miranda requires that a criminal defendant be advised of his rights every time there is a brief pause in questioning. Miranda simply requires that ‘[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.’

Taylor, 789 So.2d at 794(¶ 27) (citing Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). Watts does not claim that he invoked his right to remain silent while being questioned by the deputies.

¶ 15. Even if we were to hold that Deputy Davis should have administered a second set of warnings, we would hold the failure harmless since it is not disputed that Deputy Lowe administered the Miranda warnings to Watts, and Watts made the same statement to Deputy Lowe as he made to Deputy Davis. Therefore, Watts’s statement to Davis was cumulative. Accordingly, we find that this issue is without merit.

(2) Erroneous Admission of Evidence

¶ 16. Watts asserts that the trial court erred in admitting certain evidence against him. The Mississippi Supreme Court has established the following standard of review for a trial court’s admission of evidence: “[T]he admissibility of evidence rests within the discretion of the trial court. [However], the trial court’s discretion must be exercised within the scope of the Mississippi Rules of Evidence and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs.” Sturdivant v. State, 745 So.2d 240, 243(¶ 10) (Miss.1999) (citations omitted).

¶ 17. The primary thrust of Watts’s argument is that the cans of starter fluid, the siphon hose, the two gas cans, and the four boxes of pills should not have been introduced into evidence because they were the products of an illegal search. Watts appears to be making the argument that Deputy Lowe lacked reasonable suspicion to initiate a traffic stop on his vehicle; therefore, the evidence resulting from the search should have been suppressed because the search, itself, was illegal. Watts cites Walker v. State, 881 So.2d 820 (Miss. 2004), as support for his proposition. However, we find Walker to stand for the exact opposite position. In Walker, our supreme court stated that “the investigative stop exception of the Fourth Amendment warrant requirement allows a police officer to conduct a brief investigative stop if the officer has a reasonable suspicion, based upon specific and articulable facts which, taken together with rational inferences from those facts, result in the conclusion that criminal behavior has occurred or is imminent.” Walker, 881 So.2d at 826(¶ 10) (citing Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

¶ 18. Here, Watts was stopped after he was observed purchasing two precursor chemicals at two different Wal-Marts within a short span of time. Based on the information received from Wal-Mart security personnel, Deputy Lowe clearly had reasonable suspicion to conclude that criminal behavior had occurred or was imminent. Moreover, after Deputy Lowe initiated the investigatory traffic stop, Watts consented to a search of his vehicle, which resulted in the discovery of the other items he contends should not have been admitted into evidence. Therefore, we find that the trial court did not abuse its discretion in admitting the evidence.

¶ 19. Watts also contends that the trial court admitted his oral statement to Deputy Lowe about the last time he had used methamphetamine without first conducting a Rule 403 analysis. This assertion is completely contradicted by the record, as evidenced by the following conversation between the court and Watts’s trial counsel:

BY THE COURT: Well, I understand it’s prejudicial. The fact that he had Sudafed with him is also prejudicial.
BY MR. JONES: Your Honor, I’m not talking about the Sudafed. I’m talking about-
BY THE COURT: I understand. The statement that he had used the last — the day before.
BY MR. JONES: The evening — the night before.
BY THE COURT: The day before — the night before. No, that is very — that’s more probative of the issue of why he was — what he was going to use these items for than it would be prejudicial, and so I think the probative value there would outweigh the prejudicial....

Therefore, this issue is without merit.

(S) Motion for a Directed Verdict

¶20. Watts contends that the trial court erred in denying his motion for a directed verdict. Watts claims that the trial court should have sustained his motions for a directed verdict at the close of the State’s case-in-chief and at the conclusion of the trial. Watts argues that although he was found in possession of two precursor chemicals, ether and pseu-doephedrine, there was nothing illegal about his possession, given his profession and his reason for purchasing the pills. Watts also argues that there was insufficient evidence to prove his intent to manufacture a controlled substance.

¶ 21. A motion for a directed verdict challenges the legal sufficiency of the evidence. When reviewing the legal sufficiency of the evidence supporting a conviction, we examine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005) (quoting Bush v. State, 895 So.2d 836(¶ 16) (Miss.2005)).

¶ 22. Considering the evidence in the light most favorable to the prosecution, we find that there was more than sufficient evidence for a reasonable jury to find that Watts committed the charged offense. Watts was found in possession of two precursor chemicals, a fact which is uncontro-verted. Although Watts gave explanations for the reasons why he possessed these items, it was up to the jury to accept or reject his explanation. Further, Watts admitted to using methamphetamine the day before. A search of Watts’s home uncovered other items associated with methamphetamine manufacturing. There was testimony by law enforcement officials, trained in the prevention and detection of methamphetamine manufacturing, that Watts’s actions indicated an intent to manufacture methamphetamine. Therefore, the evidence presented was sufficient to support a conviction. Watts’s assignment of error is without merit.

(4) Watts’s Objections

¶ 23. In this assignment of error, Watts contends that the trial court erred in overruling certain objections that he made. Watts specifically complains of two objections that were overruled by the trial judge.

¶ 24. First, Watts objected and moved for a mistrial when a member of the venire made the following comment: “As an employee of Wal-Mart, I’ve seen Mr. Watts in the 49 store a lot.” Apparently, this comment was made during voir dire. Watts argues that this comment tainted the entire venire and deprived him of a fair trial. “Whether to grant a motion for a mistrial is within the sound discretion of the trial court. The standard of review for denial of a motion for mistrial is abuse of discretion.” Shelton, 853 So.2d at 1183(¶ 41) (citing Pulphus v. State, 782 So.2d 1220, 1223(¶ 10) (Miss.2001)). “The failure of the court to grant a motion for a mistrial will not be overturned on appeal unless the trial court abused its discretion.” Id. (quoting Bass v. State, 597 So.2d 182, 191 (Miss.1992)).

¶ 25. We find that the trial court did not abuse its discretion in denying the motion for a mistrial. We cannot say that the comment by a member of the venire resulted in substantial or irreparable harm to Watts’s case because Watts, in his own testimony, admitted to frequent trips to Wal-Mart: “I usually shop Wal-Mart all the time. I mean, that was my — the cheapest and best place. You know, I could get most anything and everything I needed.” Watts also admitted to going to two different Wal-Marts on the day in question. Furthermore, Watts’s trial counsel, as well as the prosecution, decided not to transcribe the voir dire portion of the trial. As a result, Watts failed to provide us with a record of what actually transpired during this portion of the trial. We note that Watts’s trial counsel submitted a supplemental affidavit asserting that such a remark was indeed made. However, this affidavit does little to aid our review because it fails to set forth what transpired after the remark was made. Therefore, there is no record of what actions, if any, the court may have taken to correct the problem. Accordingly, Watts’s assertions that the trial court did nothing to determine the prejudicial effect of the remark cannot be supported by the record. We cannot hold the lower court in error when Watts has failed to present a sufficient record to support his argument. See Williams v. State, 522 So.2d 201, 209 (Miss.1988). This issue is without merit.

¶ 26. Watts next argues that the court erred in admitting rebuttal testimony by the prosecution. Watts contends that the rebuttal testimony of Deputies Davis and Lowe was not in response to anything brought out in his defense of the case.

¶ 27. The determination of whether evidence is properly admitted as rebuttal evidence is within the discretion of the trial court. Ruffin v. State, 736 So.2d 407, 409(¶ 10) (Miss.Ct.App.1999) (citing Powell v. State, 662 So.2d 1095, 1098-99 (Miss.1995)). “Therefore, on appeal, [appellate courts] review such a ruling only for an abuse of discretion.” McGaughy v. State, 742 So.2d 1091, 1093(¶6) (Miss. 1999). The Mississippi Supreme Court has spoken on the issue of rebuttal evidence:

The rule is that when the question is not free from doubt whether the evidence offered in rebuttal is that which belongs to the evidence in chief, or whether it is rebuttal evidence proper, the court should resolve the doubt in favor of reception in rebuttal where (1) its reception will not consume so much additional time as to give an undue weight in practical probative force to the evidence so received in rebuttal, and (2) the opposite party would be substantially as well prepared to meet it by surrebuttal as if the testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebuttal.

Smith v. State, 646 So.2d 538, 543-44 (Miss.1994) (quoting Riley v. State, 248 Miss. 177, 186, 157 So.2d 381, 385 (1963)).

¶ 28. A review of the record reveals that the rebuttal testimony was properly admitted. Watts denied making an admission to Deputy Lowe about using methamphetamine the day before Watts was arrested. Deputy Davis rebutted Watts’s claim by testifying that Watts told him the same thing while in transit to the police station. Watts also denied that he tried to conceal any of the items he bought at Wal-Mart. Deputy Lowe was called to rebut this assertion, and he reiterated the manner in which he discovered certain items when he performed the search of Watts’s vehicle. Watts also claims that he was not afforded an opportunity for surre-buttal. A review of the record reveals that Watts’s trial counsel never requested sur-rebuttal; therefore, Watts cannot now claim that the lower court denied him something for which he never asked. Accordingly, we find that this issue is without merit.

(5) Jury Instructions

¶ 29. Watts contends that the trial court erred in refusing to grant two of his jury instructions. Watts argues that one of his instructions, D-10, should have been granted because it properly instructed the jury on reasonable doubt, and it was not repetitive of any other instruction given. Watts further argues that the court’s granting of the presumption of innocence instruction did not suffice for instructing the jury on reasonable doubt.

¶ 30. “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Johnson v. State, 823 So.2d 582, 584(¶ 4) (Miss. Ct.App.2002) (quoting Hickombottom v. State, 409 So.2d 1337, 1339 (Miss.1982)). Defendants do not have an absolute right to have their jury instructions granted. “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is fairly covered elsewhere in the instructions, or is without foundation in the evidence.” Humphrey v. State, 759 So.2d 368, 380(¶ 33) (Miss.2000) (quoting Heidel v. State, 587 So.2d 835, 842 (Miss.1991)) (ioverruled on other grounds).

¶ 31. In his designation of the record, Watts only designated the two instructions that he contends the court erred in not granting. He did not designate, and the record is missing, the remaining jury instructions. The Mississippi Supreme Court has spoke on the issue of an appellant relying on evidence not contained in the record in support of arguments requesting reversal:

We have on many occasions held that we must decide each case by the facts shown in the record, not assertions in the brief, however sincere counsel may be in those assertions. Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them.

Mason v. State, 440 So.2d 318, 319 (Miss. 1983). Appellate courts have repeatedly stressed that transcripts which are necessary for appeal are to be made part of the record, and that the appellant bears the burden of presenting a record which is sufficient to support his assignments of error. Roberts v. State, 761 So.2d 934, 935(¶ 3) (Miss.Ct.App.2000) (citing Williams, 522 So.2d at 209). Watts’s assertions that the trial court erred in not granting his instructions and in failing to properly instruct the jury on reasonable doubt cannot be supported by the record because he failed to provide us with all given instructions. The record reflects that eleven instructions were given, and Watts only provided the two refused instructions for our review. We cannot find that the trial court erred in refusing Watts’s two jury instructions without first knowing the substance of the jury instructions that were actually given. Because Watts failed to present a sufficient record to support his arguments, this assignment of error is without merit.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY OF CONVICTION OF POSSESSION OF PRECURSOR CHEMICALS WITH INTENT TO MANUFACTURE A CONTROLLED SUBSTANCE AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS TO BE SERVED AT THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND THE REMAINING TEN YEARS OF SAID SENTENCE TO BE SERVED UNDER THE POST-RELEASE PROVISIONS WITH A FIVE-YEAR SUPERVISION PERIOD, AND FINE OF $5,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Deputy Lowe testified that after he placed Watts under arrest, he called Deputy Scott Davis to transport Watts to the Lamar County Jail. While the record does not reflect the exact time Deputy Davis arrived, it appears that he arrived very shortly after being called, because Watts wrecker was still on the scene when he arrived. Deputy Davis testified that he was aware that Deputy Lowe had administered the Miranda warnings to Watts. After Deputy Davis began the transport to the Lamar County Jail, he also asked Watts when was the last time that Watts had used methamphetamine. Watts’s answer to Deputy Davis was the same as Watts’s answer to Deputy Lowe.

      . Mississippi Rule of Evidence 403 states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

      . It is a well-settled principle of Mississippi law that “when the defendant proceeds with his case after the State rests and the court overrules the defendant's motion for a directed verdict, the defendant has waived the appeal of that directed verdict.” Shelton v. State, 853 So.2d 1171, 1186(¶ 49) (Miss.2003) (citing Holland v. State, 656 So.2d 1192, 1197 (Miss.1995)). Therefore, Watts effectively waived his motion for a directed verdict when the trial court denied the motion and he proceeded with his case. Consequently, we limit our discussion to Watts's motion for a directed verdict at the conclusion of the trial.


author: CHANDLER, J.,

text:
    Emmitt WILLIAMS a/k/a Emmett Williams, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01985-COA.
    Court of Appeals of Mississippi.
    March 21, 2006.
    Rehearing Denied Aug. 15, 2006.

      Michael Duane Mitchell, attorney for appellant.
    Office of the Attorney General by Jeffrey A, Klingfuss, for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On February 17, 2004, Emmitt Williams was indicted in the Second Judicial District of Jones County for the sale of cocaine. Williams went to trial on August 31, 2004 and the jury returned a verdict of guilty. Williams was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections with five years suspended. The defendant appeals, raising the following issues:

I. WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE GUILTY VERDICT
II. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE
III. WHETHER THE TRIAL COURT’S SENTENCE WAS CRUEL AND UNUSUAL PUNISHMENT
¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Kenneth Hickman was a confidential informant for the Laurel Narcotics Bureau. Hickman was paid sixty dollars each time he purchased drugs for the narcotics bureau. On December 18, 2002, Hickman went to the narcotics bureau where he discussed the next transaction with a narcotics agent, Jerry Merrill. Hickman was equipped with a secret camera which recorded audio and video. Merrill drove Hickman to the assigned destination which was 1154 Simmons Street in Laurel, Mississippi. Merrill gave Hickman forty dollars to purchase the drugs and Hickman got out of the vehicle.

¶ 4. Hickman knocked at the door at 1154 Simmons Street. Williams opened the door. When Hickman entered the house, he saw three rocks of cocaine on the table. Hickman asked to purchase the drugs and Williams handed Hickman two of the rocks of cocaine. Hickman paid Williams forty dollars for the cocaine and Hickman left the premises. There was another individual in the room during the transaction. He was watching television during the transaction and did not speak while Hickman was in the house.

¶ 5. Hickman walked back to the vehicle where Merrill had been listening to the conversation via the recording device Hickman was wearing. Merrill and Hickman went back to the narcotics division, where Merrill searched Hickman to assure that he did not keep any of the cocaine, retrieved the videotape from Hickman, took his statement, and paid him for his services. Hickman had no further involvement in the case.

¶ 6. Williams was indicted for selling cocaine and went to trial on August 31, 2004. At trial, the jury saw the videotape of the transaction as well as testimony from four witnesses. First, Hickman testified to the events that occurred on December 18, 2002. Hickman stated that he knew the defendant by the name of Em-mitt Williams, and not by a street name. But Hickman acknowledged that he told Officer Merrill that he purchased the cocaine from an individual named Kojak. A defense witness, Sabrina Cody, testified that she had known Williams for four years and that Williams’ nickname was Lil Mac.

¶ 7. Keith Macmahan, an employee of the Mississippi Crime Laboratory, testified that the substance was cocaine. Additionally, Officer Merrill testified that he interviewed Williams after he watched the video of the transaction. Officer Merrill said Williams waived his rights and confessed to selling cocaine. After hearing the above evidence, the jury returned a verdict of guilty.

LAW AND ANALYSIS

I. WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE GUILTY VERDICT

¶ 8. When reviewing a sufficiency of the evidence claim, the Court considers the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 843(16) (Miss.2005). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). If the court reviews the evidence and finds that sustaining the verdict would sanction a manifest injustice, the court must grant a new trial. Burrell v. State, 613 So.2d 1186, 1191 (Miss.1993). The evidence in this case is sufficient to support the guilty verdict.

¶ 9. Williams claims that there is insufficient evidence because Hickman, the paid informant, had a financial stake in the outcome and he was a convicted felon. Hickman was paid sixty dollars for the transaction. However, Hickman was paid sixty dollars regardless of whether or not Williams was convicted. Therefore, it is not accurate to state that Hickman had a financial stake in the outcome of the trial. Hickman was not going to be paid additional money if the jury returned a particular verdict.

¶ 10. Similarly, Williams’ argument that there was insufficient evidence because Hickman was a convicted felon is not accurate. The fact that Hickman was a convicted felon does not provide a motivation to make a false report. Hickman was already convicted and there was no evidence at trial to prove that there were pending charges against Hickman. Even if Hickman had pending charges, that alone is inadequate to show that he exchanged his testimony for a favorable disposition on those pending charges. Fuller v. State, 910 So.2d 674, 681(20) (Miss.Ct. App.2005).

¶ 11. Williams’ contentions that the confidential informant was not credible assumes that the jury relied only on the testimony of the confidential informant. In the present case, there was corroborating circumstantial evidence, such as the actual video and testimony that Williams confessed to the crime, that the jury could have relied on as well. Therefore, the confidential informants credibility does not merit a finding that there was insufficient evidence to support the verdict.

¶ 12. Williams contends that there was a conflict in the case because Hickman testified that he knew the defendant by the name of Emmitt Williams, not by a nickname. Hickman also testified that he told Officer Merrill that he purchased drugs from Kojak. Although Hickman may not have properly identified Williams by name, Hickman identified Williams at trial as the person who sold him the cocaine. Also, Williams admits that he is the individual on the videotape. The fact that Williams admits that he is the individual on the videotape negates his argument that he was not the individual who sold Hickman cocaine because a jury can infer from the videotape that a drug exchange took place.

¶ 13. Williams argues that the video was insufficient evidence because the video does not show drugs or money changing hands. Nevertheless, Hickman testified to the actual exchange and the video showed Williams making statements from which a jury could infer that a drug sale did take place. There was additional evidence that Hickman got out of Officer Merrill’s vehicle on Simmons Street with forty dollars and without any drugs. Hickman immediately returned to Officer Merrill’s vehicle with two rocks of cocaine and without the forty dollars. This testimony negated Williams’ argument that there was not an exchange. Additionally, Officer Merrill was listening to the audio as the transaction occurred.

¶ 14. After reviewing the evidence in the light most favorable to the verdict, a jury could find beyond a reasonable doubt that the drug exchange between Williams and Hickman did take place. Therefore, we find that there was sufficient evidence to support the verdict.

II. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 15. “To determine whether a jury verdict is against the overwhelming weight of the evidence, we view all of the evidence in the light consistent with the verdict and we give the State all favorable inferences which may be drawn from the evidence.” Strong v. State, 600 So.2d 199, 204 (Miss. 1992) (citing Corley v. State, 584 So.2d 769, 773 (Miss.1991)). The decision of the trial court will only be reversed when this Court is convinced that the trial court abused its discretion in failing to grant a new trial. Strong, 600 So.2d at 204. The evidence in this case fully supports the jury verdict.

¶ 16. Again, Williams contends that the verdict was incorrect because the informant told Officer Merrill that he purchased cocaine from Kojak, not from Williams. However, Williams agrees that he is the individual on the video. As previously discussed, there was an abundance of corroborating evidence that a reasonable jury could have relied on in identifying the person who committed the crime. Therefore, the guilty verdict was not against the overwhelming weight of the evidence.

III. WHETHER THE TRIAL COURT’S SENTENCE WAS CRUEL AND UNUSUAL PUNISHMENT

¶ 17. Generally, a sentence will not be disturbed on appeal as long as it does not exceed the maximum term allowed by statute. Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992). However, if a sentence is “grossly disproportionate” to the crime committed, the sentence is subject to attack on the grounds that it violates the prohibition of cruel and unusual punishment under the Eighth Amendment. Id. Williams was convicted for selling cocaine under Mississippi Code Annotated section 41-29-139. Mississippi Code Annotated section 41 — 29—139(b)(1) states the maximum sentence for this crime is thirty years. This crime carries a heavy penalty because the Mississippi legislature has responded to the public concern over serious drug problems. Stromas v. State, 618 So.2d 116, 123 (Miss.1993). Williams was sentenced to twenty-five years in the Mississippi Department of Correction with five years suspended. Because Williams’ sentence was within the statutory guidelines, the sentence is not grossly disproportionate to the crime committed. This claim is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF JONES COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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