author: LAMAR, Justice,

text:
    John A. WILLIAMS v. STATE of Mississippi.
    No. 2006-KA-00418-SCT.
    Supreme Court of Mississippi.
    Oct. 11, 2007.
    Rehearing Denied Jan. 17, 2008.

      William C. Stennett, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SMITH, C.J., DICKINSON and LAMAR, JJ.
   LAMAR, Justice,

for the Court.

¶ 1. This appeal comes to us from the Circuit Court of Itawamba County, where John A. Williams was convicted on two counts: (1) manufacturing marijuana in a quantity greater than thirty grams, and (2) possession of a firearm by a convicted felon. For manufacturing marijuana, Williams was sentenced to fifteen years imprisonment and ordered to pay a $1,500 fine. For being a convicted felon in possession of a firearm, Williams was sentenced to three years imprisonment to run concurrently with the fifteen-year sentence. Williams alleges that: (1) the jury verdict was against the overwhelming weight of the evidence and contrary to the law; (2) he did not receive a fair trial because some members of the jury knew the defendant and lawyers in this case; (3) the court erred in allowing a police surveillance tape to be shown to the jury; (4) the court erred in admitting evidence of his prior felony conviction; (5) his constitutional rights were violated because he was questioned without being advised of his rights; (6) he was prejudiced by improper statements made during the State’s closing argument; and (7) his trial counsel was ineffective. Finding no reversible error, we affirm Williams’s conviction.

FACTS

¶ 2. In March 2005, Chris Graham was surveying land around the Briar Creek area in Itawamba County when he discovered what appeared to be marijuana plants growing in small red cups. Graham and his partner left the area immediately. Later that day, Graham called Chris Um-fress, a narcotics agent with the Itawamba County Sheriffs Department and reported what he had discovered. He later took Umfress to the area where he had seen the cups.

¶ 3. Umfress testified that he suspected the plants in the cups were marijuana. The Sheriffs Department decided to conduct video surveillance on the plants using a waterproof, motion-detecting camera system. This camera was set up on April 7, 2005. Umfress testified that they returned to the camera every three days to change the tape and the batteries in the system. On April 27, Umfress monitored the footage and saw that someone had been recorded tending the plants. Although the tape showed someone tending the plants, the person’s face was never revealed because the camera angle was too low. The tape clearly showed two dogs, a white German shepherd and a cocker spaniel, accompanying the person tending the plants.

¶4. Umfress surmised that since the dogs were accompanying the suspect on the videotape, it was likely that the suspect was walking to the plants from somewhere nearby. Acting; on this belief, Umfress decided to do some “mobile surveillance,” driving on some of the roads in the area looking'for the dogs which were seen on the video.' Umfress testified that he discovered the two dogs at the residence of John A. Williams. He decided to continue video surveillance in hopes of getting a positive identification of the suspect.

¶ 5. On June 6, 2005, Umfress returned to the surveillance area to check the camera and the plants. He testified that he could tell that the plants had been tended. He reviewed the videotape, and on this second video, the suspect’s face was clearly shown. Umfress testified that Officer David Sheffield, who also was reviewing the tape, immediately identified the suspect as John Williams. Having a positive identification of the suspect, Umfress decided to collect the plants in the woods. However, when he attempted to do so, he realized that some of the plants were no longer there. Believing that Williams had harvested the missing plants, Umfress applied for and received a search warrant for Williams’s residence.

¶ 6. Umfress and five other agents proceeded to search Williams’s residence. According to Umfress’s testimony, Williams was orally advised of his Miranda rights. Williams admitted to ownership of the plants which had been under surveillance in the woods. Agents found two more plants at Williams’s residence, along with dried marijuana in a Tupperware bowl and in a film canister. They also found at the residence a handgun in the drawer of a nightstand in the master bedroom, marijuana-growing literature and paraphernalia, a rifle, two shotguns, ammunition for the guns, and a buck knife. After being taken into custody, Williams signed a waiver of his Miranda rights, stating that he did not want a lawyer and that he would cooperate with the police and answer their questions.

COURSE OF PROCEEDINGS

¶ 7. On August 2, 2005, John A. Williams was indicted by a grand jury on one count of manufacturing marijuana in an amount greater than thirty grams and one count of possession of a firearm by a convicted felon. On January 27, 2006, in a one-day trial, an Itawamba County jury convicted Williams on both counts. Williams did not testify, nor did he call any witnesses. Alleging numerous errors which he believes deprived him of a fair trial, Williams filed a timely appeal with this Court.

ANALYSIS

I. Williams’s motions for directed verdict and JNOV

¶ 8. This Court reviews the denial of a motion for directed verdict under a de novo standard. Gilmer v. State, 955 So.2d 829, 833 (Miss.2007). The critical inquiry in deciding whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment not withstanding the verdict (JNOV) is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged and that he did so under such circumstances that every element of the offense existed. Ivy v. State, 949 So.2d 748, 751 (Miss.2007). If the evidence fails to meet this test, it is insufficient to support a conviction. Id. The legal sufficiency of the evidence is viewed in the light most favorable to the State. Dixon v. State, 953 So.2d 1108, 1111 (Miss.2007).

A. Count I, Manufacture of Marijuana

¶ 9. Mississippi Code Annotated section 41-29-139(a)(l) makes the manufacture of marijuana unlawful. Our law defines the term “manufacture” as:

the production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.

Miss.Code Ann. § 41-29-105(q) (Rev. 2005).

¶ 10. Williams argues that the evidence against him was insufficient to support his conviction. During the testimony of Agent Umfress, it was established that someone had been videotaped by the surveillance camera tending the plants located in the woods. On the first video, which was admitted into evidence as State Exhibit 1, the suspect could be seen bending over, tending to the plants, and then walking away from the plants. Because of the low angle of the camera, the suspect could be seen only from the waist down. However, the first video clearly did show two dogs, a white German shepherd and a cocker spaniel, accompanying the suspect. Two dogs fitting the description of the dogs on the video were found at Williams’s residence, according to Umfress’s testimony.

¶ 11. The second video, which was admitted as State Exhibit 2, again showed a suspect tending the plants. However, because Umfress raised the camera angle after monitoring the first video, the suspect’s face was very clearly shown. Um-fress and another agent identified this suspect as John Williams. Williams admitted that the marijuana plants found in the woods were his.

¶ 12. When the search warrant was executed at Williams’s residence, the agents recovered two marijuana plants which were being grown on Williams’s property, marijuana in a Tupperware bowl and a film canister, and marijuana-growing literature and paraphernalia. Williams admitted that these items belonged to him. The forensic analysis report from the Tupelo Crime Lab, which was admitted as State Exhibit 4, confirmed that the plants and substances recovered from the woods and Williams’s residence were indeed marijuana. The aggregate weight of these items was 39.4 grams.

¶ 13. It is clear the State presented sufficient evidence presented to find beyond a reasonable doubt that Williams was indeed guilty of each element of the crime of manufacturing marijuana. Therefore, this issue is without merit.

B. Possession of a Firearm by a Convicted, Felon

¶ 14. Mississippi Code Annotated section 97-37-5 makes it unlawful for any person who has been convicted of a felony to possess a firearm and provides that anyone in violation of this section may be imprisoned for not more than three years, or be ordered to pay not more than $5,000 in fines, or both. Miss.Code Ann. § 97-37-5 (Rev.2006).

¶ 15. It is undisputed that Williams previously was convicted of the felony of aggravated assault. His indictment and order of conviction were admitted into evidence as State Exhibit 5. The issue here is whether there was sufficient evidence to find that the gun found at Williams’s residence was in Williams’s possession.

¶ 16. Because the gun was not found on Williams’s person, the State must prove that the gun was in the constructive possession of Williams. “Constructive possession allows the prosecution to establish possession of contraband when evidence of actual possession is absent. Constructive possession is established by showing that the contraband was under the dominion and control of the defendant.” Roberson v. State, 595 So.2d 1310, 1319 (Miss.1992) (citing Vickery v. State, 535 So.2d 1371, 1379 (Miss.1988)). “[T]here must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular [contraband] and was intentionally and consciously in possession of it.” Curry v. State, 249 So.2d 414, 416 (Miss.1971).

¶ 17. Williams claims that the gun found at his residence was not his but his wife’s and that the evidence was insufficient to establish that the gun belonged to him. It is clear from the record that Williams’s residence was under the control and possession of both Williams and his wife. In Ginn v. State, this Court prescribed the proper rule for finding constructive possession of contraband in such a situation:

We have held that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband. Where the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband.

Ginn v. State, 860 So.2d 675, 685 (Miss.2003). Because Williams’s residence was not under his exclusive possession and control, we must determine whether additional incriminating factors connect Williams to the gun.

¶ 18. The handgun, which was admitted into evidence as State Exhibit 8, was found in the drawer of a nightstand located on the left side of the bed in Williams’s bedroom. Umfress testified that on the right side of the bed was a dresser containing, among other things, female garments. On the nightstand in which the gun was located was a fixed-blade knife and a metal box containing literature about growing marijuana. Williams said that the literature was his. Umfress testified that because of the items located in the dresser on the right side of the room and the nightstand on the left side of the room, it appeared that the left side of the room was the “masculine” side, i.e., Williams’s side. Umfress testified that Williams’s wife claimed that the gun was hers, but when he asked her to load bullets into the gun’s magazine, she could not.

¶ 19. In viewing the evidence in the light most favorable to the State, we find that there was sufficient additional incriminating evidence for a reasonable juror to find beyond a reasonable doubt that Williams was in constructive possession of the handgun found in his bedroom. Therefore, this issue is without merit. The trial court did not err in denying Williams’s motions for directed verdict and JNOV.

II. Some jurors stated during voir dire that they knew people involved in the case.

¶ 20. Williams claims that he was unable to receive a fair trial because potential jurors who stated during voir dire that they were familiar with the attorneys, witnesses, or Williams himself were allowed to serve as jurors in this case. However, because there was no challenge by the defense to any of these jurors at trial, Williams has waived his right to appeal on this issue.

¶21. In Jaco v. State, the defendants complained on appeal of the circuit court’s refusal to strike a juror who had admitted friendship with the sheriff in the county of prosecution. Jaco v. State, 574 So.2d 625, 633 (Miss.1990). This Court held that because the defendants had failed to challenge the juror either for cause or peremptorily, they had waived the point on appeal. Id. at 634 (citing Ratliff v. State, 515 So.2d 877, 880 (Miss.1987)).

¶22. The trial court dismissed seven jurors for cause on its own motion. The State made two challenges for cause, one of which was granted by the court. The defense made no challenges for cause, and the defense did not use its peremptory challenges on the jurors about whom Williams now complains. This issue is procedurally barred.

III. The introduction of the videotapes into evidence

¶ 23. Williams argues that the trial court erred in allowing the videotapes from the surveillance camera in the woods to be shown to the jury. These videotapes each were admitted into evidence during the testimony of Agent Umfress. After the admission of the first video into evidence, defense counsel made the following objection: “Your honor, I-do object to the showing [of] this video, because, first of all, they’ve already said to this jury that they will see this man on this tape.” The trial court overruled the objection.

¶ 24. “A trial judge has broad discretion as to the admissibility of evidence. Unless this discretion is so abused as to be prejudicial to the accused, this Court will not reverse the lower court’s ruling.” Coleman v. State, 697 So.2d 777, 784 (Miss.1997) (quoting Dye v. State, 498 So.2d 343, 344 (Miss.1986)). Defense counsel’s objection was properly overruled. In laying the predicate for admitting the first video into evidence, Umfress described what was on the tape. In doing so, Umfress refers to the suspect on the video as “a person,” and never says “the defendant” or ‘"Williams.” The objection by defense counsel to the first video was erroneous.

¶ 25. Before the admission of the second videotape into evidence, after the first already had been shown to the jury, the prosecutor made the following remark about the second video:

Prosecutor: And has that been cued up?
Umfress: Yes it has.
Prosecutor: To the time that the defendant was out there at those plants?
Umfress: Yes, sir.

Defense counsel made no objection to the prosecutor’s comment. When asked if she had objection to the second video being admitted into evidence, defense counsel stated, “No, but I do object to again telling them that they will see this gentleman in the picture, whereas they must determine whose picture it is.” The trial court responded:

Jury, I trust that that is understood that you are viewing this video making your own factual determination that, in fact, this indeed is or is not the defendant. That’s your determination to make.

This Court presumes that a jury follows the direction of a trial court to disregard an improper comment. Flora v. State, 925 So.2d 797, 805 (Miss.2006).

¶ 26. The trial court did not directly sustain defense counsel’s objection, nor did it admonish the prosecutor’s comment. However, the trial court’s instruction did inform the jury that they were to make their own factual determinations as to whether the suspect on the video was the defendant. The trial court did not abuse its discretion by allowing the videotapes to be played for the jury.

¶ 27. Williams also claims that the videos were not properly authenticated at trial. However, there was no objection at trial as to the authenticity of the videotapes. “It is elementary that different grounds than the objections presented to the trial court cannot be presented for the first time on appeal.” Thornhill v. State, 561 So.2d 1025, 1029 (Miss.1989). Williams’s argument that the videotapes were not properly authenticated is procedurally barred.

IV. Evidence of Williams’s previous felony conviction

¶ 28. Williams claims that the trial court erred in allowing evidence pertaining to his previous conviction for aggravated assault. It is his contention that “the detailed description of the aggravated assault poisoned the minds of the jurors.” The indictment and sentencing order for his prior felony conviction were entered into evidence as State Exhibit 5 to prove that Williams was in fact a “convicted felon” in possession of a firearm. There was no objection at trial to the indictment and sentencing order being entered into evidence, and this issue is therefore barred on appeal.

V. Williams’s Miranda rights claim

¶ 29. Williams claims that he was questioned by Agent Umfress prior to being informed of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This argument is presented for the first time on appeal. No motion was made at the trial level to suppress the statements made by Williams to the agents at his home. Agent Umfress testified that he orally advised Williams of his rights during the execution of the search warrant. Further, Williams signed a waiver of his rights after being taken into custody. “As a general rule, constitutional questions not asserted at the trial level are deemed waived.” Pinkney v. State, 757 So.2d 297, 299 (Miss.2000). This issue is procedurally barred.

VI. Improper statement made by the prosecutor during closing argument

¶ 30. During closing rebuttal, the prosecutor made the following comment:

So how do you believe beyond a reasonable doubt turning to the gun, this Smith & Wesson, how do you believe beyond a reasonable doubt that this pistol was his? Well, one reason is it was found in or at the nightstand on what appears to have been his side of the bed, but also because that’s exactly what kind of pistol he shot Mark Lentz with.

Defense counsel immediately objected to the comment, arguing that no evidence of a shooting had come in, only that Williams was previously convicted of aggravated assault. Id. The trial court gave the following curative instruction to the jury:

Ladies and gentlemen of the jury, I’m going to instruct you to disregard the statement that’s been made by [the prosecutor]. You will see when you return to the jury room that State’s Exhibit No. 5 in the indictment involving the case in 1992, the aggravated assault, that the weapon that is used is a 9-millimeter pistol. It’s referred to in this indictment by a particular serial number. There’s been no proof in this case that it’s one and the same gun.

¶ 31. Williams argues that the trial court should have granted a mistrial sua sponte, in the absence of a no motion for a mistrial, because the jury was tainted by the prosecutor’s comment. “The granting of a mistrial is within the sound discretion of the trial judge.” Hoops v. State, 681 So.2d 521, 528 (Miss.1996). It is presumed that a jury follows the direction of a trial judge to disregard an improper comment or testimony. Flora v. State, 925 So.2d at 805. “Our law presumes the jury does as it is told. To presume otherwise would render the jury system inoperable.” Williams v. State, 684 So.2d 1179, 1209 (Miss.1996) (citations omitted).

¶ 32. There is no reason to believe that Williams was prejudiced or that the jury was tainted by the prosecutor’s remark. Details of the shooting mentioned in the allegedly improper remark were already before the jury in the aggravated assault indictment, which had been admitted into evidence without objection. We must assume that the jury followed the instructions of the trial judge and disregarded the comment. After the court’s admonishment, the prosecutor himself said that he “did not mean to represent that that is the same gun.” Further, the gun which was in evidence was not even a 9-millimeter, but a .22 caliber, showing the jury that it could not have been the same gun used in the aggravated assault. Given this set of circumstances, this Court cannot say that Williams was prejudiced by the prosecutor’s comment, and there was no abuse of discretion in the trial court’s failure to grant a mistrial sua sponte.

VII. Ineffective assistance of counsel

¶ 33. Williams next argues that his representation at trial was deficient, citing three alleged deficiencies that he claims constituted ineffective assistance of counsel.

¶ 34. “To prevail on a claim of ineffective assistance of counsel, a defendant must meet a two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which this Court has adopted.” Rankin v. State, 636 So.2d 652, 656 (Miss.1994).

The Strickland test requires a showing that counsel’s performance was sufficiently deficient to constitute prejudice to the defense. The defendant has the burden of proving both prongs. A strong but rebuttable presumption, that counsel’s performance falls within the wide range of reasonable professional assistance, exists. The defendant must show that but for his attorney’s errors, there is a reasonable probability that he would have received a different result in the trial court.

Id. (Citations omitted). Stated differently, a defendant must show that his trial counsel’s performance was deficient and that he was prejudiced by the deficient representation. We will address each of Williams’s arguments in turn.

A. Counsel did not request severance of the charges.

¶ 35. Williams asserts that his trial counsel erred in not moving to have the charges against him severed so that the manufacturing-marijuana charge and the felon-in-possession-of-a-firearm charge could be tried in different proceedings. The crux of this claim is that allowing the jury to hear evidence of the prior felony conviction prejudiced Williams in the manufacturing-marijuana charge.

¶36. Mississippi Code Annotated section 99-7-2 dictates when two or more offenses may be charged in a single indictment:

(1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
(2) Where two (2) or more offenses are properly charged in separate counts of a single indictment, all such charges may be tried in a single proceeding.

This Court has prescribed a procedure for deciding whether multiple charges brought under one indictment meet the requirements of the statute:

When a defendant raises the issue of severance, we recommend that the trial court hold a hearing on the issue. The State, then, has the burden of making a prima facie case showing that the offenses charged fall within the language of the statute allowing multi-count indictments. If the State meets its burden, a defendant may rebut by showing that the offenses were separate and distinct acts or transactions. In making its determination regarding severance, the trial court should pay particular attention to whether the time period between the occurrences is insignificant, whether the evidence proving each count would be admissible to prove each of the other counts ... and whether the crimes were interwoven.

Corley v. State, 584 So.2d 769, 772 (Miss.1991). Because this question was not raised at the trial level and arises from an ineffective-assistance-of-counsel claim, the burden is on Williams to make a showing that his multi-count indictment violated the statute. Williams provides no authority, no argument, and no analysis whatsoever on this issue. Therefore, we will not address the merits of this claim. However, even if Williams could show that his counsel’s failure to move for severance of these charges constituted deficient performance so as to meet the first prong of the Strickland test, Williams must also show that he was prejudiced by the deficient representation.

¶37. The second prong of the Strickland test requires the defendant to show that, absent counsel’s errors, “there is a reasonable probability that he would have received a different result in the trial court.” Rankin v. State, 636 So.2d at 656. Williams has failed to meet his burden on this prong of the test. There was no shortage of credible evidence against Williams on the manufacture-of-marijuana charge, as discussed previously. Even if defense counsel had successfully moved to have the charges severed, given the strength of the State’s case against Williams, he could not reasonably have expected a different result on the manufacture-of-marijuana charge. We find that Williams fails to meet the second prong of the Strickland test.

B. Counsel presented no case-in-chief.

¶ 38. After the State presented its case at trial, the defense moved for a directed verdict. This motion was denied by the court, and the defense rested at that time. No witnesses were called on behalf of the defense. Williams now asserts that it was error constituting ineffective assistance for his counsel to call no witnesses.

¶ 39. It is not uncommon for the defense in a criminal case to call no witnesses. See, e.g., Burrows v. State, 961 So.2d 701 (Miss.2007), Shields v. State, 702 So.2d 380 (Miss.1997), and Harrison v. State, 635 So.2d 894 (Miss.1994). The only specific error that Williams alleges is counsel’s failure to call Cynthia Williams, Williams’s wife, as a witness so she could testify that the firearm found in the bedroom belonged to her.

¶ 40. There is a strong but rebuttable presumption “that counsel’s performance falls within the wide range of reasonable professional assistance.” Rankin v. State, 636 So.2d at 656. There could be many reasons why counsel chose not to call Cynthia Williams as a witness in this case, not the least of which could be to avoid a potentially damaging cross examination. Further, evidence already had been presented through cross examination of Um-fress that Cynthia Williams claimed that the gun belonged to her.

¶ 41. Williams’s counsel performed a thorough cross examination of the witnesses called by the State. After consulting with counsel, Williams himself made the decision that he did not wish to testify. Williams has not overcome the presumption that his counsel’s performance was reasonable under the circumstances.

C. Defense counsel did not request that Judge Aycock recuse herself

¶42. Williams asserts that defense counsel should have moved for Judge Aycock to recuse herself, claiming that Cynthia Williams had been involved in a lawsuit against Judge Aycock’s brother, Darrel Harp, Jr., shortly before Williams’s trial. Because of this connection, Williams argues that his counsel was deficient for not requesting a recusal.

¶ 43. Nothing in the record indicates that Judge Aycock was even aware of the alleged lawsuit between her brother and the defendant’s wife. The issue was never raised at the trial level, and the record is completely devoid of any evidence which would support this claim on appeal. Further, nothing in our law would have required Judge Aycock to recuse herself because of such a lawsuit, absent some showing of bias. “When a judge is not disqualified under § 165 of the Mississippi Constitution, or [Miss.Code Ann.] § 9-1-11, the propriety of his or her sitting is a question to be decided by the judge and is subject to review only in case of manifest abuse of discretion.” Ruffin v. State, 481 So.2d 312, 317 (Miss.1985). There would have been no abuse of discretion in Judge Aycock’s presiding over this case, even had defense counsel asked her to recuse. It cannot be said that defense counsel was deficient in not making a request that could properly have been denied. Further, a review of the record reveals no prejudice or bias on Judge Aycock’s part. On the contrary, the record shows that Judge Aycock was fair and impartial in her rulings. Williams has shown no prejudice in having Judge Aycock preside over this case.

¶ 44. After thorough review of the trial record, we find that Williams has failed to show that his trial counsel’s assistance was sufficiently deficient to constitute prejudice to his defense. Therefore, Williams’s claim of ineffective assistance of counsel is without merit.

CONCLUSION

¶ 45. The evidence presented at trial was sufficient to support Williams’s conviction on both counts. Further, Williams has not shown that his trial counsel was sufficiently deficient to support a finding of ineffective assistance under Strickland analysis. All other issues brought were procedurally barred from consideration. Therefore, Williams’s convictions as to Counts I and II are affirmed.

¶ 46. COUNT I: CONVICTION OF MANUFACTURE OF MARIJUANA GREATER THAN 30 GRAMS AND SENTENCE OF FIFTEEN (15) YEARS, WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE (5) YEARS ON POST RELEASE SUPERVISION, AFFIRMED. COUNT II: CONVICTION OF POSSESSION OF A WEAPON BY A CONVICTED FELON AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONCURRENTLY WITH SENTENCE IMPOSED IN COUNT I. APPELLANT SHALL PAY A FINE OF $1500.00, COURT COSTS IN THE AMOUNT OF $904.50 AND RESTITUTION OF $100.00.

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

      . Graham testified that he and his partner were running a survey line for the owner of the adjacent land, Ms. Jackson. The plants were actually located on an adjacent property owned by R.C. Grimes.

      . Several guns were recovered during the search of Williams's residence. The only gun for which Williams was charged with possession was a .22 caliber pistol recovered from a nightstand in Williams's bedroom.

      . Umfress testified that in the first surveillance video, the suspect was wearing a fixed-blade knife on his belt.


source: Caselaw Access Project

author: GRAVES, Justice,

license: Public Domain

text:
    Charles E. PATE v. CONSECO LIFE INSURANCE COMPANY and Jack Creely.
    No. 2006-CA-01496-SCT.
    Supreme Court of Mississippi.
    Jan. 3, 2008.

      Grady L. McCool, III, Joseph E. Roberts, Jr., Jackson, attorneys for appellant.
    Jacob Michael Jenkins, Charles E. Griffin, Jackson, attorneys for appellees.
    Before SMITH, C.J., GRAVES AND RANDOLPH, JJ.
   GRAVES, Justice,

for the Court.

¶ 1. This is an appeal from an order granting summary judgment in the Circuit Court of Itawamba County. Because we find that the trial court erred in finding no genuine issue of material fact and in finding that Conseco is entitled to a judgment as a matter of law, we reverse and remand.

FACTS

¶ 2. Charles Pate obtained a life insurance policy from Lamar Life Insurance Company on November 19, 1984. Bill Ogden was the company representative from Lamar, and Jack Creely was the agent involved in the transaction. Lamar Life later merged with Conseco Life Insurance Company in 1999. Hereinafter, all of the defendants will be referred to as “Conse-co” for purposes of clarity. Pate had a planned monthly premium of $186.22 for the $50,000 policy. On or about August 21, 2001, Pate received a letter informing him that he would have to pay an increased premium of $743.56 or his policy would lapse. Thereafter, Pate filed an action for breach of contract on November 17, 2003, in the Circuit Court of Itawamba County. Conseco filed a Motion for Summary Judgment on February 15, 2006. The trial court granted the motion for summary judgment by order filed August 8, 2006. Subsequently, Pate filed this appeal.

ANALYSIS

¶ 3. Pate asserts that the trial court erred in granting Conseco’s motion for summary judgment. This Court employs a de novo standard of review in considering a trial court’s decision on a motion for summary judgment. See Huff-Cook, Inc. v. Dale, 913 So.2d 988 (Miss.2005). See also Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206 (Miss.2001). “A motion for summary judgment should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. at 1209. See Rule 56(c), Mississippi Rules of Civil Procedure (M.R.C.P.). “To prevent summary judgment, the non-moving party must establish a genuine issue of material fact by means allowable under the rule.” Hartford, 826 So.2d at 1209.

Ambiguity

¶ 4. Pate asserts that the terms of the contract are clear regarding the amount and payment of the premium. However, Conseco relies on language in the cash-value clause in support of its decision to raise the premium. If one accepts Conseco’s argument, then the cash-value clause creates an ambiguity when read with the other clauses. Nevertheless, any ambiguous terms would have to be construed against Conseco. This Court has said that “where a contract is clear and unambiguous, its meaning and effect are matters of law.” U.S. Fidelity & Guar. Co. v. Omnibank, 812 So.2d 196, 198 (Miss.2002). This Court has further said:

It is also bedrock law “that ambiguous terms in an insurance contract are to be construed most strongly against the preparer, the insurance company.” Omnibank, 812 So.2d at 198; Caldwell v. Hartford Acc. & Indem. Co., 248 Miss. 767, 776, 160 So.2d 209, 212-13 (1964) (“The rule that the insurance policy prepared by the insurer must be construed more strongly against the insurance company, and that any fair doubt should be resolved in favor of the insured, is so well-settled in the law of insurance that we hesitate to cite any cases”). We must refrain from altering or changing a policy where the terms are unambiguous, even if there is a resulting hardship on the insured party. Titan Indem. Co. v. Estes, 825 So.2d 651, 656 (Miss.2002); State Farm Mut. Auto. Ins. Co. v. Scitzs, 394 So.2d 1371, 1373 (Miss.1981). Like any other contract, if an insurance contract is plain and unambiguous, it should be construed as written. Estes, 825 So.2d at 656; Scitzs, 394 So.2d at 1372; see generally Jeffrey Jackson, Mississippi Insurance Law & Practice § 1:7(2001).

Farmland Mut. Ins. Co. v. Scruggs, 886 So.2d 714, 717 (Miss.2004).

¶ 5. The record indicates that Pate’s contract provided for a planned monthly premium of $186.22. Further, the contract provided the following:

1. PREMIUMS are amounts of money you pay us to keep this policy in force. Your premium payments are flexible. This means that you can choose the timing and amount of your Premium payments, subject to the restrictions in this section.
2. Your choice regarding timing and amounts of Premiums will affect the Cash Values of the policy. In the event you stop paying Premiums, the timing and amount of Premiums you have already paid will affect the length of time the policy will stay in force and, in certain cases, the amount of the death benefit. The mechanics governing this and an explanation of the Cash Value are found in the section entitled “V CASH VALUE AND THE CASH VALUE BENEFITS.”
4. PLANNED PREMIUMS are those you intend to make at regular intervals. Planned Premiums may be paid as long as this policy is in force before the Insured’s death. You chose an amount and frequency for your Planned Premiums. Your choice is shown on the Schedule Page.
5. You may request us to change the amount and frequency of your Planned Premiums. We have limits on the size of change in Planned Premiums which we will approve. If you want to change the Planned Premiums, send a written request to us at our home office. Tell us your name, the policy number, the new amount for the Planned Premiums, and the frequency with which you plan to make these Premium payments. Your request must be signed.
7. UNSCHEDULED PREMIUMS are premiums you pay us after issue which are not Planned Premiums. We have limits on the maximum frequency and maximum amount of Unscheduled Premiums which we will accept. Within these limits, you may pay Unscheduled Premiums at any time this policy is in force before the Insured’s death.

¶ 6. Conseco points to language contained in the section entitled “What happens if the Cash Value becomes very small,” which says:

If the policy’s Cash Value, minus the value of any Policy Loan Balance less unearned loan interest, on any Monthly Anniversary, is not enough to cover the Month’s Deduction for the next Policy Month, the policy will enter its GRACE PERIOD. The Grace Period is the next two (2) Policy Months after this Monthly Anniversary. If you do not pay enough Premium during the Grace Period to cover any amounts in arrears, then this policy will automatically terminate at the end of the Grace Period. It will then have no cash value.

Conseco fails to point to any language contained in the policy which would allow for an increase in the planned monthly premium. Therefore, we find that the terms of the contract plainly and unambiguously support Pate and should be construed as written.

Statute of Limitations

¶ 7. Pate asserts that the trial court erred in holding that the statute of limitations barred all of Pate’s claims against Conseco. Specifically, Pate argues that he was expressly told, as an inducement to purchase the policy, that his monthly premium would be $186.22 and would never increase. Therefore, Pate asserts, a claim resulting from an increase in premiums would not ripen until he was put on notice of the increase.

¶ 8. Mississippi Code Annotated Section 15-1-49 provides for a three-year statute of limitations after the cause of action accrues. The trial court found that Pate’s action was barred by the statute of limitations pursuant to Stephens v. Equitable Life Assur. Soc’y of the United States, 850 So.2d 78 (Miss.2003). Pate asserts that the trial court misapplied Stephens. We agree.

¶ 9. Stephens involved an action for fraudulent concealment and misrepresentation. The cause of action accrued in 1972, but the plaintiffs did not file suit until 2001. This Court said that, in such a case, “plaintiffs have a two-fold obligation to demonstrate that (1) some affirmative act or conduct was done and prevented discovery of a claim, and (2) due diligence was preformed on their part to discover it.” Id. at 84. This Court found: “The policies were unambiguous and clearly stated the terms of payment. There was no affirmative act to prevent discovery, the terms were written into the policy.” Id.

¶ 10. In the instant case, the policy does not unambiguously and/or clearly state any terms for an increase in the monthly planned premium and, as a result, Stephens is clearly distinguishable. Furthermore, Pate’s cause of action accrued when his premium was increased in 2001. Pate filed his action in 2008, which was within the three-year statute of limitations provided by Mississippi Code Annotated Section 15-1-49. Therefore, the trial court erred in finding no genuine issue of material fact and in finding that Conseco is entitled to a judgment as a matter of law. Accordingly, we reverse the order granting summary judgment and remand this matter to the trial court for proceedings consistent with this opinion.

¶ 11. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., concur.

      . The annual report for November 19, 2000, through November 18, 2001, shows that the planned premium increased to $340 per month.


author: KING, C.J.,

text:
    O & J LOADING SERVICE, LLC, Appellant v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.
    No. 2005-CC-01965-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.
    Rehearing Denied June 12, 2007.
    Certiorari Denied Dec. 6, 2007.
    John S. Hill, William D. Prestage, Albert G. Delgadillo, Tupelo, attorneys for appellant.

      Albert B. White, Madison, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   KING, C.J.,

for the Court.

¶ 1. 0 & J Loading Service, LLC appeals the trial court’s ruling that its appeal of the March 17, 2003, decision of the Mississippi Employment Security Commission was untimely. The trial court also found that the Commission’s decision was supported by substantial evidence. The March 17, 2003, decision ruled that 0 & J’s former worker, Gerald Phelps, and other similarly situated workers were employees, that Gerald Phelps was entitled to unemployment benefits, and that 0 & J should have reported wages and paid taxes for Gerald Phelps and other similarly situated employees.

FACTS AND PROCEDURAL HISTORY

¶2. Gerald Phelps worked for 0 & J Loading Service, LLC loading tires onto trucks. 0 & J set his work schedule, and he was paid a set amount per truckload. The company, however, categorized Phelps not as an employee, but as a part-owner in the company. Under 0 & J’s limited liability company structure, Phelps owned one non-voting share in O & J, evidenced by a certificate. Accordingly, Phelps received a K-l form rather than a W-2 form for the purpose of filing his tax returns.

¶ 3. Phelps left his employment with the company on October 23, 2002. He applied for unemployment benefits with the Mississippi Employment Security Commission on December 2, 2002. That application was denied. On December 9, 2002, Phelps completed an application for reconsideration. At that point, the Commission discovered that O & J was not a registered employer under the Mississippi Employment Security Law and began an investigation to determine whether Phelps was an employee qualified to apply for unemployment benefits. The Commission’s field representative collected a copy of O & J’s Forml065 for 2001, O & J’s operating agreement, Phelps’ stock certificate, and Phelps’ Form K-l for 2001. Phelps also completed an independent contractor’s questionnaire for the Commission.

¶ 4. The Contribution and Status Department at the Commission determined that Phelps was an employee of, and not a partner in, O & J. On March 17, 2003, the Contribution and Status Department issued its decision, containing notice of a ten-day deadline for appeal pursuant to Mississippi Code Annotated Section 71-5-355(2)(b)(ix) (Rev.2000), to 0 & J. 0 & J did not appeal the decision until April 11, 2003, when its CPA mailed a letter disagreeing with the Department’s decision. This letter was sent outside the ten-day appeal period set forth in the March 17, 2003, decision.

¶ 5. A hearing on the appeal was scheduled for September 8, 2003, and then postponed until September 22, 2003. Although it appears that the Commission initially intended for its representative to address the merits of the Department’s finding of an employer/employee relationship, the hearing officer only heard evidence and arguments regarding the timeliness of the appeal. On September 30, 2003, the hearing officer issued his opinion. In that letter, the hearing officer concluded that O & J had failed to file its appeal of the Department’s findings of an employer/employee relationship within the applicable 10-day period and, therefore, dismissed the appeal.

¶ 6. O & J then appealed that decision to the Commission, which held a hearing on March 12, 2004, to determine whether O & J’s appeal of the initial decision was timely. The Commission held that the appeal of the initial decision was untimely and stated further that the initial decision was supported by substantial evidence. O & J then appealed the decision of the Commission to the trial court, which affirmed the Commission’s decision.

¶ 7. O & J argues it was entitled to a thirty-day appeal period, rather than the ten-day period cited in the March 17, 2003 decision. Specifically, O & J argues that the March 17, 2003 decision was an initial determination of its rate of contribution and was subject to a thirty-day appeal period, as set forth in Mississippi Code Annotated Section 71 — 5—355(2)(b) (fix); therefore, its appeal was timely. O & J also contends that the agency’s determination that Phelps and other similarly situated workers were employees, rather than owners, was arbitrary and capricious and unsupported by substantial evidence. The Commission argues that its decision was a contribution liability or status decision subject to the ten-day appeal period stated in Mississippi Code Annotated Section 71-5-355(2)(b)(ix).

STANDARD OF REVIEW

¶ 8. In reviewing the decision of a trial court regarding an agency decision, this Court will affirm the agency decision unless that decision “(1) was unsupported by substantial evidence; (2) was arbitrary or capricious; (3) was beyond the power of the administrative agency to make; or (4) violated some statutory or constitutional right of the complaining party.” Mississippi Sierra Club v. Mississippi Dep’t of Envtl. Quality, 819 So.2d 515, 519(¶ 15) (Miss.2002).

ANALYSIS

¶ 9. Under Mississippi’s statutory scheme for determining whether an employer is required to pay unemployment taxes, an “employing unit” includes “any individual or type of organization, including any partnership, association, trust, estate, joint-stock company, insurance company, or corporation whether domestic or foreign, ... which has or had in its employ one or more individuals performing services for it within this state.” Miss.Code Atm. § 71-5-ll(H) (Supp.2006). An “employer” is any “employing unit” that meets certain specifications regarding wages, persons in service to the employer, the type of services performed, etc. See Miss. Code Ann. § 71-5-11(1) (Supp.2006). Employment is “determined in accordance with the principles of the common law governing the relation of master and servant.” Miss.Code Ann. § 71-5-11 (I)(14).

¶ 10. Mississippi Code Annotated Section 71 — 5—355(2)(b)(ix) states in pertinent part as follows:

The department shall notify each employer of his rate of contribution as determined for any tax year as soon as reasonably possible after November 1 of the preceding year. Such determination shall be final, conclusive and binding upon such employer unless, within thirty (30) days after the date of the mailing of such notice to his last known address, the employer files with the department an application for review and redetermi-nation of his contribution rate, setting forth his reasons therefor .... but no employer shall be allowed, in any proceeding involving his rate of contributions or contribution liability, to contest the changeability to his account of any benefits paid in accordance with a determination, redetermination or decision pursuant to Sections 71-5-515 through 71-5-533 except upon the ground that the services on the basis of which such benefits were found to be chargeable did not constitute services performed in employment for him, and then only in the event that he was not a party to such determination, redetermination, decision or to any other proceedings provided in this chapter in which the character of such services was determined. The employer shall be promptly notified of the denial of this application or of the rede-termination, both of which shall become final unless, within ten (10) days after the date of mailing of notice thereof, there shall be an appeal to the department itself....

Miss.Code Ann. § 71-5-355(2)(b)(ix). These appeals processes are limited in scope and are available to employers only in limited circumstances as defined by statute.

¶ 11. O & J argues that it is appealing an order establishing its contribution rate and that the March 17, 2003, decision was an initial determination. Specifically, O & J argues that it is not an employer required to make contributions to the fund, as its relationship with Phelps and other similarly situated persons is not an employer/employee relationship. Accordingly, O & J contends that the statute permits a thirty-day appeal period. In so arguing, however, O & J ignores the limited scope of appeals in which the thirty-day appeal period is available.

¶ 12. The statute clearly states that only an employer appealing a determination of his “rate of contribution” is entitled to the thirty-day appeal period. The rate of contribution is defined in Mississippi Code Annotated Section 71-5-353 as a specific percentage of the taxable wages that an employer pays during each calendar year. That rate can be modified, as set forth in Section 71-5-355. O & J is not appealing the Commission’s ruling that it is required to pay a specific percentage of taxable wages, but the ruling that it be required to pay the tax at all. O & J’s appeal, then, is not an appeal of the applicable contribution rate, but of its contribution liability with regard to a particular employee and class of employees.

¶ 13. Mississippi Code Annotated Section 71 — 5—355(2)(b)(ix) also provides that an appeal of contribution liability is allowed only when an employer, who was not previously notified of proceedings to determine such liability, seeks to contest benefits awarded to a former employee and charged to his account during an employee’s attempt to secure unemployment benefits. When an appeal is allowed in this limited circumstance, the employer is granted ten days in which to perfect his appeal.

¶ 14. In this case, the Commission denied Phelps’ initial application for unemployment benefits. When Phelps completed an application for reconsideration of his denial, the Commission’s Contribution and Status Department undertook an investigation of Phelps’ employment status. The Commission’s March 17, 2002, redetermi-nation of Phelps’ eligibility for unemployment benefits, which is part of the process outlined in Mississippi Code Annotated Sections 71-5-515 through 71-5-533, was the decision that provided the required notice to O & J, thereby triggering the ten-day appeal period set forth in the statute.

¶ 15. O & J’s April 11, 2003, notice of appeal was filed outside of the ten-day appeal period set forth in Mississippi Code Annotated 71-5-355. Accordingly, O & J’s appeal was not timely filed, and the Commission’s March 17, 2003, ruling is final. Having held that the appeal was untimely, this Court will not address the remaining issues raised by O & J.

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

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

      . Effective July 1, 2004, the Mississippi Employment Security Commission became known as the Mississippi Department of Employment Security. See Miss.Code Ann. § 71-5-11(f) (Rev.2005).

      . A Schedule K-l is the form that the IRS issues to each partner in a partnership, including an LLC, to report the income, gains, losses, etc. received from membership in that partnership. Partners must complete the Schedule K-l as part of their tax returns.

      . A W-2 Form is the form that reports wages earned within a calendar year. The employer completes a W-2 Form for each employee to submit as part of his individual tax returns.

      . Phelps’ initial application for benefits and. the document initially denying benefits are not in the record before the Court. Phelps’ application for reconsideration, however, is in the record and reflects December 2, 2002, as the date of his initial application. The parties have not disputed this point of fact.

      . IRS Form 1065 is an information return used to report the income, deductions, gains, losses, etc., from the operation of a partnership, including an LLC. Such entities do not pay tax on their income but pass through any profits or losses to their partners. Partners must include partnership items on their tax returns.


author: CHANDLER, J.,

text:
    James Todd LACKIE a/k/a James T. Lackie, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01838-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.
    Rehearing Denied Sept. 18, 2007.
    Certiorari Denied Dec. 6, 2007.

      Dan W. Duggan, Brandon, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. James Todd Lackie was convicted of four counts of aggravated assault and sentenced to serve time in the custody of the Mississippi Department of Corrections, following a drunken fight at a party in which a knife was pulled and several of the par-tygoers were injured. Aggrieved, Lackie appeals, arguing:

I. WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT LACKIE’S MOTION FOR A DIRECTED VERDICT, PEREMPTORY INSTRUCTION, OR JNOV.
II. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING A JURY INSTRUCTION CONCERNING THE LESSER OFFENSE OF SIMPLE ASSAULT.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On November 3, 2002, Lackie and his friend Matthew Householder attended a party at a home in Caledonia, Mississippi in Lowndes County. Approximately thirty to fifty people were in attendance. Over the course of the evening, Lackie consumed alcohol and became intoxicated. The four victims in this case, Adam Walt-man, Wesley Gann, Jordan Graham, and Jon O’Neal were also attendees and had been drinking.

¶4. After midnight, a fight broke out. The initial physical altercation began between Casey Pruitt and O’Neal. Accounts vary as to how and why the fight started, but once the initial fight broke out, other partygoers entered the altercation and a cluster of fights ensued.

¶ 5. Lackie entered the fracas and at some point brandished a knife. During the fight, Waltman, Gann, Graham, and O’Neal were injured by the knife. Walt-man was stabbed in his left arm; Graham in his chest, lung, hands and wrists; O’Neal in his right eye; and Gann in his jaw and under his eye. Householder was also stabbed in his arm and Lackie suffered a cut to his hand.

¶ 6. Lackie was indicted on five counts of aggravated assault against Waltman, Gann, Graham, O’Neal and Householder pursuant to Section 97 — 3—7(2)(b) of the Mississippi Code Annotated (Rev.2002). The count of aggravated assault against Householder was later dismissed.

¶ 7. At trial, witnesses testified that Lackie was the only person seen with a knife. Witnesses for the State testified that they saw Lackie fighting with a few of the victims, and some stated they actually saw Lackie stab at least one of the victims with the knife. One of the victims, Gann, testified that he saw a knife in Lackie’s hand. Lackie admitted to wielding a knife and cutting some of the men in the fight, but claimed that his actions were done purely in self-defense. He maintained that the knife was only used because he feared for his safety after several men jumped on top of him. Other witnesses refuted this testimony, saying that Lackie was the initial aggressor and had no need to use a knife in the fist fight.

¶ 8. The fight ended when someone shouted that a knife was being used. Witnesses stated that Lackie dropped the knife at that point and fled, but Lackie countered that he did not know how he lost the knife. After the fight, the victims were taken to the hospital, except for Lackie and Householder, who did not seek immediate medical attention. After the knife was recovered at the scene by police investigators, Lackie admitted that it was his.

¶ 9. A jury found Lackie guilty on each of the four counts of aggravated assault. The trial court sentenced Lackie as follows: Count II (the aggravated assault of Gann), twenty years in prison; and on Counts I, III, and IV (the aggravated assault of Waltman, Graham, and O’Neal, respectively) ten years in prison on each count to be served concurrently with each other and consecutively with Count II. The court also imposed a fine of $500 on each count, and five years of post-release supervision.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT LACKIE’S MOTION FOR A DIRECTED VERDICT, PEREMPTORY INSTRUCTION, OR JNOV.

¶ 10. Lackie asserts that he was entitled to a directed verdict, because the State failed to meet its burden as to every count in the indictment. He maintains that no direct evidence was presented to support the prima facie case, and that the testimony was too inconsistent to support the verdict. Lackie further asserts that the court should have granted a peremptory instruction.

A. Sufficiency of the Evidence

¶ 11. Lackie requested a directed verdict at the close of the State’s evidence and a peremptory instruction when trial evidence was concluded. He also filed a motion for a judgment notwithstanding the verdict. All three of these arguments challenge the sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 12. A review of these- motions requires consideration of the evidence before the court when the motions were made. This Court “properly reviews the ruling on the last occasion the challenge was made in the trial court. This occurred when the circuit court overruled [Lackie’s] motion for JNOV.” Id. We view the evidence in a light most favorable to the State, and the credible evidence consistent with Lackie’s guilt must be accepted as true. Id. Further, we give the State the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id. Therefore, it is our job to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 13. Lackie was indicted under Section 97-3-7(2)(b) of the Mississippi Code Annotated, which states in part: “(2) A person is guilty of aggravated assault if he ... (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.”

¶ 14. Lackie argues that the State did not prove with direct evidence that Lackie was the one who actually cut Wait-man, O’Neal or Graham. “[Wjhere a case is based wholly on circumstantial evidence, the state must prove [the defendant’s] guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence.” Murphy v. State, 566 So.2d 1201, 1204 (Miss.1990).

¶ 15. Witnesses testified that Lackie was the only one seen with a knife. Lack-ie himself admits entering the fight with the knife, swinging it, and cutting some of the participants. When the knife was recovered at the scene, Lackie admitted that it was his. The evidence is also uncontro-verted that the wounds suffered by all of the men were made by a knife or some sharp object.

¶ 16. Wattman stated that he had been fighting with Lackie, was hit from behind, fell to the ground, and when he got up, noticed that he had been stabbed. Sarah McKay testified that she witnessed Lackie “jump” on O’Neal and beat him. Gann corroborated McKay’s testimony and stated that when he saw Lackie hitting O’Neal, he grabbed Lackie and pushed Lackie up against a truck. Graham admitted in his testimony that he did not know who had actually stabbed him, but that he had been fighting with Lackie and some other men prior to discovering blood on his hands.

¶ 17. Lackie further asserts that the State did not meet its burden to prove that Lackie knowingly and purposely assaulted Gann. However, several witnesses testified that they saw Gann and Lackie physically fighting. Gann himself saw Lackie holding the knife and stated that Lackie swung at him, cutting Gann underneath his eye with the knife. Kevin Smith and Wattman further corroborated that they saw Lackie pull Gann’s shirt over his head and hit Gann in the jaw.

¶ 18. Lackie asserted that his actions were done in self-defense, but several of the State’s witnesses stated otherwise. Witnesses testified that they did not see a group of men jump on Lackie, as Lackie asserted. Rather, they maintained that Lackie voluntarily became involved in the altercation and was one of the initial aggressors. Therefore, the testimony presented was sufficient for a jury to determine the credibility of the witnesses, weigh all of the evidence, and make a determination that Lackie was guilty of aggravated assault. Accordingly, this issue is without merit.

B. Weight of the Evidence

¶ 19. Lackie also challenges the weight of the evidence. A motion for a new trial is addressed to the discretion of the trial court. Bush, 895 So.2d at 844(¶ 18). The motion should be granted only if the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Id. On review of the denial of a motion for a new trial, we view the evidence in the light most favorable to the verdict, and will reverse only in exceptional cases where the evidence preponderated heavily against the verdict. Id.

¶ 20. Although conflicts are present in the testimony given, the jury’s verdict was not against the overwhelming weight of the evidence. As stated above, the State presented several witnesses who stated they saw Lackie actively engaged in the fíght, and some stated they saw Lackie with the knife.

¶21. Lackie’s friend, Matthew Householder, gave a statement to the police in which he claimed that Lackie admitted to pulling a knife, but only to “get people off him so he could get back on his feet.” Householder recanted that Lackie said that he did swing the knife, but did not know if he had cut anyone. Householder also identified Lackie’s knife to the police when questioned. At trial, Householder stated that he did not see Lackie on the ground, but that he did see “several people gathered in a bunch.” He assumed that Lackie was underneath the pile of people. Householder maintained that a group of boys attacked him and that during the fight, he was focused on getting himself out of the fracas. Householder was stabbed in the arm during the altercation, but did not know who stabbed him. When asked if Householder was in fear of his life and if so, would he have used deadly force, Householder stated that he would not have used deadly force because he did not think it was warranted.

¶ 22. Testimony was also given that Lackie pulled a shirt over Gann’s head and then proceeded to stab the blinded victim. Smith and Waltman testified that they saw Lackie hit Gann in the face. Lackie himself admitted to wielding a knife while he was engaged in the fight. Moreover, no evidence was presented that the injuries sustained did not come from a knife or that any other participant had a knife. Therefore, we find this issue to be without merit.

II. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING A JURY INSTRUCTION CONCERNING THE LESSER OFFENSE OF

. SIMPLE ASSAULT.

¶ 23. Lackie finally claims that he was entitled to a jury instruction for simple assault. We disagree. It is well settled that a lesser-included offense instruction is required only “where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt.” Mackbee v. State, 575 So.2d 16, 23 (Miss.1990). "Whether a lesser offense instruction should be given turns on whether there exists an evidentia-ry basis for it. Hutchinson v. State, 594 So.2d 17, 20 (Miss.1992).

¶ 24. Section 97-3-7 of the Mississippi Code Annotated provides for both simple and aggravated assault:

(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; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm; ...
(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....

The maximum sentence for simple assault is six months in the county jail; for aggravated assault, it is not more than one year in the county jail or twenty years in the penitentiary.

¶ 25. Our1 supreme court has held' that aggravated assault and simple assault are mirror images of one another, except that aggravated assault requires the intentional use of a deadly weapon. Hutchinson, 594 So.2d at 19. This Court has echoed the supreme court’s holding by stating that “the statutory scheme designed and worded as it is precludes an intentional assault with a knife from ever being simple assault.” Taylor v. State, 763 So.2d 913, 916(¶ 10) (Miss.Ct.App.2000).

¶ 26. In Hutchinson, the court found that when an accused wields a deadly weapon and intentionally strikes his victim, he is not entitled to a lesser-included offense instruction for simple assault. 594 So.2d at 20. Hutchinson involved a defendant who was convicted of aggravated assault after he ended an altercation with a fellow bar patron by bearing and using a knife. The defendant challenged his conviction, contending that he was entitled to a jury instruction on the lesser-offense of simple assault. In affirming the conviction, the court concluded that the defendant’s intentional use of the knife took the case out of the realm of simple assault under Mississippi Code Annotated Section 97-3-7(1), and placed it solely within the purview of aggravated assault under Section 97-3-7(2).

¶27. Lackie argues that the present case is distinguishable from Hutchinson because Lackie was simply outnumbered and negligently flourished his knife in order to scare away his attacker, whereas in Hutchinson, the defendant was the aggressor and intentionally stabbed a sole victim and also threatened the victim not to tell anyone. Therefore, Lackie maintains it is feasible that some or all of the victims in the present case were negligently struck by Lackie’s knife or that in the commotion, other forces caused the brandished knife to injure the victims.

¶ 28. We find Lackie’s argument to be without merit. First, the initial altercation began with O’Neal and Pruitt. Lackie admitted to voluntarily joining the fight, and intentionally opening his knife. Second, Lackie demonstrated to the jury how he wielded the knife and used it during the fight. He testified that he intentionally used the knife by thrusting it backwards in an attempt to get some of the men off of his back. A simple, assault instruction would be proper only if he had negligently used the deadly weapon, such as in a scenario where he pulled out the knife and it flew out of his hands, accidentally injuring someone. The evidence presented in the record simply does not support a negligence theory.

¶ 29. Lackie also cites the case of Lee v. State, 469 So.2d 1225 (Miss.1985), in which our supreme court reversed and remanded for a new trial due to the failure of the trial court to grant a lesser-included offense instruction. In Lee, a prisoner, in an attempt to escape, overpowered a jail guard, struck him, and while trying to use the guard as a hostage, put a knife to the guard’s throat and threatened to kill the guard. At trial, the prisoner, Lee, vehemently denied that he threatened anyone with a knife. Lee -claimed that he had bribed the guard with money and jewelry in exchange for allowing him to escape, and that he never intentionally used the knife as a weapon against the guard. Although the guard’s and the accused’s accounts varied, the court found that by viewing the evidence in the light most favorable to the accused and taking all reasonable inferences in favor of the accused, Lee’s testimony brought the case within the definition of simple assault.

¶ 30. We find Lee to be distinguishable from the present case because, as we stated above, no evidence was presented to establish a negligence theory. Lackie admitted that he used the knife intentionally, and even demonstrated to the court his version of how the stabbing occurred. Accordingly, we find the lower court’s denial of a simple assault instruction to be without error, and we affirm Lackie’s conviction.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF FOUR COUNTS OF AGGRAVATED ASSAULT AND SENTENCE OF TEN YEARS EACH FOR COUNTS I, III, AND IV AND TWENTY YEARS FOR COUNT II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SENTENCES IN COUNTS I, III, AND IV TO RUN CONCURRENTLY TO EACH OTHER AND CONSECUTIVELY TO SENTENCE IN COUNT II, PAY A FINE OF $500’ ON EACH COUNT AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND PAY RESTITUTION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: CARLTON, J.,

text:
    William T. McCAIN a/k/a William McCain, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-01892-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.
    Rehearing Denied Sept. 11, 2007.
    Certiorari Denied Dec. 13, 2007.

      Virginia L. Watkins, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. William “Billy” McCain was convicted by a Hinds County Circuit Court jury for the crime of murder. On appeal, he argues a violation of his right to testify and other errors during his trial. Finding no error, we affirm.

FACTS

¶ 2. McCain and the victim, Ginger Willis, had been in a relationship for over ten years. McCain and Willis lived at Ridge-view Apartments in Clinton, Mississippi, where Willis was also employed as the manager. On September 18, 2004, the two were involved in a heated argument about McCain’s drug use. According to McCain’s own statements, he returned to the couple’s apartment after a few days of heavy drug use. He was still under the influence of crystal methamphetamine and crack cocaine when he returned to the apartment.

¶ 3. According to McCain, Willis pushed him from behind and he fell to his knees. McCain then grabbed a metal hydraulic jack and repeatedly struck Willis. McCain then obtained a knife from the kitchen and repeatedly stabbed Willis. Willis died from bleeding caused by a knife wound to her jugular vein. Had Willis not died of bleeding, she would have died from blunt force trauma to her head because of bruising to her brain. Willis had eleven other non-lethal stab wounds on her fingers, hands and forearms consistent with “defensive wounds.” After Willis was beaten and stabbed, McCain stole money out of her purse in order to purchase more drugs.

¶ 4. Another resident of the apartments noticed that Willis had not been seen for a while. There was no answer to phone calls made to her apartment. The resident went to the apartment where Willis lived and there was no response. With a suspicion that something was wrong, the resident then found an open window and discovered the lifeless body of Willis on the bedroom floor. Police recovered the butcher knife and jack from a closet in the apartment.

¶ 5. The day following the murder McCain turned himself in to law enforcement in Perry County, Mississippi. He was then taken into custody by the Clinton Police Department. McCain was indicted for deliberate design murder under Mississippi Code Annotated Section 97-3-19(l)(a) (Rev.2006). A jury convicted McCain for the crime as charged. McCain received a sentence of life imprisonment without the possibility of parole. His appeal has been assigned to this Court.

DISCUSSION

1. Right to Testify

¶ 6. McCain argues his right to testify was violated and that this prevented him from presenting a meaningful defense. He argues that he sought to testify to the jury about the events of September 18. Just prior to a mid-day recess, the trial judge was careful to ensure McCain understood his rights, including the right to testify. After the trial judge informed McCain about his right to testify, the judge stated:

What I am telling you is that whatever your preliminary decision is that you have the right to change your mind and testify or not testify at any point up until the point that your attorney stands and announces in open court that you rest your case. Do you understand?

McCain responded that he understood. Counsel for McCain then made a motion for a directed verdict. The court denied the motion and proceed into recess. After the midday recess, counsel for McCain requested a bench conference, the content of which was not recorded. Upon conclusion of the bench, the trial judge stated:

BY THE COURT: What I would like to do then, unless there is some objection, is to go ahead and go through the jury instructions so I don’t have to send the jury immediately back out. And then when the jury comes in, [counsel for McCain], I’ll need you to rest your case in their presence.
BY [THE PUBLIC DEFENDER]: Yes, sir.

The actual request that was made at trial came after the trial judge ruled on all of the jury instructions, which included a refusal to give the jury an instruction on manslaughter. Counsel for McCain made the following request:

BY [THE PUBLIC DEFENDER]: Your Honor, based on a discussion with my client and the Court’s rulings on the instructions, we’re going to ask the Court to allow us to — I know this is extraordinary — ask you to allow us to reopen the defense’s case and call our client to the witness stand.

The prosecution objected due to concern of unfairness because McCain could tailor his testimony to create a factual basis for the lesser charge of manslaughter after the trial judge had already ruled on the matter. The trial judge agreed with the prosecution but allowed McCain to testify “to make a record by way of proffer.” In response to the trial judge’s decision, McCain’s counsel responded, “That would be great Judge. Thank you,” and proceeded to call McCain to the stand. No objection was made by the defense and the issue was not raised in McCain’s post-trial motion for judgment notwithstanding the verdict or a new trial in the alternative.

¶ 7. A person’s right to testify when defending against a charged crime is protected under the Sixth Amendment of the United States Constitution and under Article 3, Section 26 of our state constitution. Issues raised for the first time on appeal and not contemporaneously objected to at trial are waived. Tate v. State, 912 So.2d 919, 928(¶ 27) (Miss.2005); Jones v. State, 856 So.2d 285, 293(¶ 27) (Miss.2003). However, a violation of a constitutional right “may reach such serious dimension” that it will be addressed when raised for the first time on appeal. Whigham v. State, 611 So.2d 988, 995 (Miss.1992).

¶ 8. Although a claim of violation of a constitutional right may be heard for the first time on appeal, known constitutional rights may be waived “by an intentional relinquishment or abandonment.” Minnick v. Mississippi, 498 U.S. 146, 160, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). This high standard of proof for waiving a constitutional right is applied to each case “upon the particular facts and circumstances surrounding that case....” Id.

¶ 9. This Court granted McCain’s request for an oral argument concerning his appeal. During that proceeding, counsel representing McCain conceded that this issue arises out of a technicality. The occasion that gave rise to this technicality was that the trial judge decided to avoid bringing the jury back into the courtroom so that one sentence could be uttered by the defense resting its case, and then have to send the jury back out, go through instruction and bring the jury back in to receive those instructions. Instead, the trial judge asked counsel if there was any objection to going through the instructions at that moment, and avoid having to bring in the jury only to send them out upon the defense stating that it rested.

¶ 10. McCain was specifically instructed on his right to testify in his own defense. The trial judge was careful to inform McCain that this decision was for McCain alone to decide. Counsel for McCain requested to “reopen” McCain’s defense only after receiving an adverse decision on a jury instruction for manslaughter due to the absence of a factual basis for that instruction. The record does not demonstrate that McCain was refused an opportunity to present a defense which included testimony on his own behalf. The record and arguments demonstrate that counsel for McCain was satisfied that McCain received what he asked of the trial judge. McCain was not requesting to mount a meaningful defense by his own testimony. The fairness of his trial was not affected.

2. Post-Trial Motions

¶ 11. McCain argues that his motion for directed verdict should have been granted because the prosecution faded to prove all elements of deliberate design and depraved heart murder. The essence of McCain’s argument is that he acted out of anger and rage rather than with deliberate design or with a depraved heart. McCain moved for a directed verdict at the close of the State’s case. The trial judge denied the motion because there was ample testimony, including the number and severity of wounds, upon which the jury could find that McCain killed Willis with malice.

¶ 12. A directed verdict challenges the legal sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). The focus of our inquiry is “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.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 13. McCain was charged for the crime of murder which requires the State to prove that McCain did kill and murder Ginger Willis, without the authority of law, with deliberate design to effect the death of Ginger Willis. Miss.Code Ann. § 97 — 3—19(l)(a). For purposes of murder, the terms “malice aforethought” and “deliberate design” are synonymous. Tran v. State, 681 So.2d 514, 517 (Miss.1996). This necessary element of malice cannot be formed at the instant of the killing but may be formed “very quickly.” Carter v. State, 722 So.2d 1258, 1263(¶ 18) (Miss.1998) (citations omitted).

¶ 14. There was evidence that McCain repeatedly beat Willis with the hydraulic jack, then proceeded to the kitchen where he obtained a knife from a drawer. After obtaining the knife, McCain returned to the bedroom and repeatedly stabbed Willis. There was also evidence that McCain took money from Willis after he had inflicted the fatal wounds to buy more drugs. McCain did proffer testimony that he did not remember going to the kitchen and retrieving the knife or inflicting the fatal stab wounds to Willis. There was also evidence presented at trial that after McCain had beaten and stabbed Willis, he concealed the bloodied hydraulic jack and knife in a closet. When this evidence is reviewed in a light most favorable to the State, it is legally sufficient to support that any reasonable juror could have found beyond a reasonable doubt that McCain formed the required malice very quickly while obtaining the knife and prior to stabbing Willis. This issue is without merit.

S. Jury Instruction

¶ 15. McCain argues that the trial judge did not use the correct standard in refusing to give the jury an instruction on the lesser offense of manslaughter. McCain argues that there was an eviden-tiary basis to give an instruction on manslaughter, and that refusing the instruction denied him the right to present a defense to the jury. He argues that the instruction should have been granted if the trial judge viewed the evidence in a light most favorable to McCain. Mease v. State, 539 So.2d 1324, 1330 (Miss.1989).

¶ 16. The trial judge refused to grant an instruction on manslaughter because McCain failed to demonstrate the required degree of exasperation. The trial judge cited caselaw to support his conclusion that the facts of the case did not demonstrate a sufficient basis for a manslaughter instruction. Phillips v. State, 794 So.2d 1034, 1037(¶ 19) (Miss.2001) (stating the high standard required for a manslaughter instruction); Turner v. State, 773 So.2d 952, 954(¶ 8) (Miss.Ct.App.2000) (stating angry or reproachful words and shoving were an insufficient basis to support a manslaughter instruction absent testimony that violent and uncontrollable rage appeared to exist); Gaddis v. State, 207 Miss. 508, 514-16, 42 So.2d 724, 726 (1949) (an early holding that words of reproach, criticism, or anger are insufficient to reduce murder to manslaughter). McCain argues that the combination of Willis shoving him, swinging her purse at him, and using words of reproach or anger satisfied the factual basis for a manslaughter instruction.

¶ 17. Jury instructions are reviewed by reading them as a whole. Rushing v. State, 911 So.2d 526, 537(¶ 24) (Miss.2005). McCain was entitled to jury instructions on his theory of the case. Despite this entitlement, the trial judge can refuse to give instructions which state the law incorrectly, repetitiously state a theory already covered, or have no evidentiary foundation. Id.

¶ 18. McCain relies upon the evidentia-ry standard as stated in Mease. There, the court pointed to an earlier case laying out that standard. Mease, 539 So.2d at 1330 (citing Harper v. State, 478 So.2d 1017, 1021 (Miss.1985)). The Court has more recently looked to Harper in deciding whether an adequate evidentiary basis existed for a manslaughter instruction. Moody v. State, 841 So.2d 1067, 1096— 97(1197) (Miss.2003). In Moody, the court reiterated that the main distinction between murder and manslaughter is that malice is present in murder and absent in manslaughter. Id. at 1096(¶ 96) (citation omitted). The Court went on to say that a lesser offense instruction should only be granted if an evidentiary basis is present and that such instructions “should not be granted indiscriminately....” Id. at 1097(1197) (quoting Mease, 539 So.2d at 1329).

¶ 19. The standard established by the court as stated in Harper and more recently quoted in Moody states that:

A lesser-included offense instruction should be granted unless the trial judge and ultimately this Court can say, taking the evidence in the light most favorable to the accused and considering all the reasonable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of a lesser-included offense (conversely, not guilty of at least one essential element of the principal charge).

Moody, 841 So.2d at 1097(¶ 97) (quoting Harper, 478 So.2d at 1021) (other citations omitted). This standard was further clarified in stating that:

Only if this Court can say, taking the evidence in the light most favorable to the accused and considering all reasonable favorable inferences that can be drawn in favor of the accused from the evidence, and considering the evidence that the jury may not be required to .bélieve any evidence offered by the State, that no hypothetical reasonable jury could convict [the defendant] of simple murder could it be said that the refusal of a lesser-included offense instruction was proper.

Id. This is an objective standard. Id. at 1097(¶ 98). The objective nature of this test requires us to determine whether a reasonable person would have been so provoked in the same situation as McCain. As applied to whether a manslaughter instruction should have been given, “the test is whether the defendant acted in the heat of passion and without malice.” Id.

¶ 20. McCain’s argument is not persuasive that provocative and angry words coupled with shoving and swinging a purse amount to a factual basis for a manslaughter instruction. Our inquiry does not take into account how McCain would act on a crack-cocaine and methamphetamine high. Malice may. be inferred or implied where a deadly weapon is used. Phillips, 794 So.2d at 1037(¶ 11); Turner, 773 So.2d at 954(¶ 7). McCain’s use of a knife requires that he overcome this implication of malice with evidence that he acted in the heat of passion.

¶ 21. The record reflects that evidence submitted by McCain to overcome this implication of malice is that he could not remember obtaining the knife from the kitchen and then returning to repeatedly stab the already beaten body of Willis. Inferences favorable to McCain must be reasonable. McCain conveniently forgot that he stabbed Willis after he had already beaten her with the metal jack but then remembered taking money out of her purse to purchase more drugs before leaving the scene of the crime. The trial court did not err in refusing to give an instruction on manslaughter.

A Judicial Impartiality

¶22. McCain argues that his conviction should be set aside because the trial judge was not impartial by assisting the admission of certain photographs. McCain concludes that he was deprived of his fundamental right of a fair trial. He cites caselaw in support of his specific complaint that the trial judge coached the prosecutor in how to lay a proper ev-identiary predicate for admission of photographs by engaging in a monologue regarding the legal requirements for the introduction of photographs. Jackson v. State, 2003-KA-2606 (Miss. Mar. 24, 2005); West v. State, 519 So.2d 418 (Miss.1988); Brent v. State, 929 So.2d 952 (Miss.Ct.App.2005).

¶ 23. The State argues the issue is waived because McCain failed to make a contemporaneous objection at trial. The contemporaneous objection bar is limited where “the conduct of the trial judge, on the entire record, was so reprehensible and prejudicial as to deny a fair trial or due process of law.” Powell v. Ayars, 792 So.2d 240, 248(1129) (Miss.2001) (quoting Jackson Yellow Cab Co. v. Alexander, 246 Miss. 268, 277, 148 So.2d 674, 678 (1963)). The four volume record has been reviewed with care.

¶ 24. For clarity we recite the following portions of the trial that are relevant to McCain’s argument. After the jury had been excused from the court room, counsel for McCain objected to the admission of a photograph of the victim because of its “highly gruesome” and “inflammatory effects.” The trial judge then inquired as to whether the photo had any probative evi-dentiary value. The trial judge concluded that the photo had no probative value but also stated that he may reconsider that decision if anything in the photo became an issue later in the case.

¶25. The second point in the trial to which McCain directs our attention involved the prosecution questioning a detective during direct testimony. The prosecution attempted to admit into evidence a photo marked as State’s Exhibit # 2. The photo depicted the body of Willis as found in her bedroom. The trial judge sustained the objection by the defense and stated that he would give his reasons on the record later.

¶ 26. Later in the trial the following exchange took place outside of the presence of the jury. The prosecution requested that the crime scene photo marked as State’s Exhibit # 2 be admitted into evidence. The prosecution argued in part that the photo aided “in describing the circumstances of the killing and the corpus delecti of the murder itself....” The trial judge responded:

BY THE COURT: Won’t the corpus delecti be complete once you put the pathologist on to establish cause or death?
BY [THE PROSECUTOR]: Yes, sir.
BY THE COURT: Well, why don’t you just play it safe and do that.
BY [THE PROSECUTOR]: Okay, Your Honor. Thank you.

¶ 27. The final exchange to which McCain directs our attention took place while the prosecution was questioning the physician who performed the autopsy of Willis. Outside the presence of the jury, counsel for McCain objected to autopsy photographs being admitted into evidence. The trial judge allowed the prosecution to proffer testimony through the witness in order to determine if the photos could later be admitted before the jury.

¶28. The prosecution attempted to have the photo, which is identified in the record as Exhibit # 18, admitted into evidence after the witness, Dr. Steve Hayne, a forensic pathologist, stated the identity of the victim in the photo. The trial judge asked, “[What’s] the probative value? All he’s done is state that that is Ginger Willis.” The prosecution then questioned the witness in detail about the exact contents of the photo. The defense stated that it did not care to question the witness concerning this particular photo. The following exchange then took place:

EXAMINATION BY THE COURT:
Q. Dr. Hayne, would this particular photograph aid and assist you in conveying and explaining to the jury the findings that you made or your opinions reached following the autopsy?
A. Yes, Your Honor. I think after the body has been washed and dried and cleaned, it shows pietorially the injuries that I’m essentially stating in audio form.
BY THE COURT: All right. The Court finds that the photograph is probative of the injuries that Dr. Hayne has covered.
The Court also notes that, as Dr. Hayne just indicated, this would be after the body was washed, and there is not an over abundance of blood.
The Court does not find that it’s even an overly gruesome photograph, and certainly its probative value is not outweighed by any prejudice that the defense would suffer by the introduction. So the objection will be overruled. It will be marked as Exhibit 18 into evidence.

¶ 29. McCain points to these portions of the trial in arguing that the trial judge assisted the prosecution “to lay the eviden-tiary foundation necessary for introduction of evidence, then sua sponte seek admission of the photographs.” McCain listed this as one of the reasons why he should receive a judgment notwithstanding the verdict or a new trial.

¶ 30. The trial judge responded to McCain’s allegation that he stepped in sua sponte to lay the proper foundation for photographs in the judgment denying McCain’s post-trial motion. The reasoning of the trial judge included:

“The Court may interrogate wit-nesses_” Rule 614(b), MRE. Golden v. State, 860 So.2d 820 (Miss.App.2003); Davis v. State, 811 So.2d 346 (Miss.App.2001). Defendant only now takes issue with certain questions that the Court asked prosecution witness Dr. Stephen Hayne, concerning certain photographs. Rule 614(c), MRE, however, requires such objections be made “at the time or at the next available opportunity when the jury is not present.” Dr. Hayne was the first witness to testify in this trial. His testimony concluded at the end of the first day of trial. The Court recessed at that time until 9:00 a.m., the following morning. There were numerous instances throughout the trial when the Court, out of the presence of the jury, asked counsel for both parties if there were matters that needed to be addressed either before the jury was brought in or before counsel and the Court exited the courtroom for a recess. Presented with many opportunities to do so out of the presence of the jury, defense counsel voiced no objection to the Court’s questions of Dr. Hayne. Where, as here there is no objection, the issue is waived. Lacey v. Lacey, 822 So.2d 1132 (Miss.App.2002).

¶ 31. A criminal defendant is entitled to an impartial judge. McCain properly states that a “criminal defendant tried by a partial judge is entitled to have his conviction set aside, no matter how strong the evidence against him.” Edwards v. Balisok, 520 U.S. 641, 647, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). The authority McCain relies upon offers little to support his contention. The unpublished Jackson decision cited to by McCain was a per curiam affirmance. In West, the improper conduct was that the trial judge became actively involved in the prosecution of the case. 519 So.2d at 419-21. There, the trial judge asked his own questions during the cross-examination of a witness. Id. The judge also gave the prosecutor warnings about questions that would cause the matter to be reversed if appealed. Id. In all, the Court found that there were:

thirty (30) instances where the trial judge improperly, or unnecessarily, interjected himself into the proceedings. Of those thirty instances, twenty are of the type which may be characterized as coaching the district attorney. On nine occasions, the trial judge posed questions to witnesses where the district attorney’s questions were ineffective. The questions by the trial judge generally served to strengthen the prosecution’s case.

Id. at 421.

¶ 32. In Brent, we addressed a situation where a trial judge, the same judge presiding over McCain’s case, actively assumed a role in establishing the validity of a search warrant that he had signed when he was a county court judge. 929 So.2d at 955-56 (¶¶ 4-8). There, the trial judge erred in not recusing himself because he was reviewing whether he had properly signed a search warrant in his previous role as county court judge, and had previously prosecuted Brent. Id. The current situation is a far cry from the impropriety of the situation we addressed in Brent and the questioning that took place in West where improper conduct was extensive and took place in the presence of the jury.

¶ 33. A trial judge may interrogate a witness. M.R.E. 614(b). Reversal is warranted where “the trial judge displays partiality, becomes an advocate, or, in any significant way, conveys to the jury the impression that he has sided with the prosecution.” Gleeton v. State, 716 So.2d 1083, 1090(¶ 24) (Miss.1998) (quoting Layne v. State, 542 So.2d 237, 242 (Miss.1989)).

¶ 34. In the present case, the trial judge did not ask questions in the presence of the jury. The trial judge was not advocating the position of the State and did not display partiality by asking a question to ensure that a photo would assist Dr. Hayne in describing the wounds Willis received. We interpret the statement of the trial judge to the prosecution to “play it safe” as communicating that there would be a more appropriate time to discuss whether a particular photo should be entered into evidence. This statement does not demonstrate a display of partiality as the trial judge merely communicated to the prosecution that the present moment was not the best or appropriate time to entertain the issue of whether the photo marked as Exhibit # 2 should be admitted into evidence. The exchange took place outside the presence of the jury. The defense did not indicate its current concern of coaching at the time of the incident, at any time during the trial, or in the post-trial motion. The prosecution had already submitted the photo for admission into evidence. The record does not demonstrate that the trial judge tried to sua sponte seek to enter the photo into evidence. The issue is without merit.

¶ 35. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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