text:
    George L. BATES a/k/a George Bates, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01769-COA.
    Court of Appeals of Mississippi.
    Oct. 17, 2006.
    Rehearing Denied Feb. 27, 2007.

      David L. Walker, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. George L. Bates was convicted in the Circuit Court of Tate County of one count of causing disfigurement and permanent disability to another while operating a vehicle under the influence of intoxicating liquor, and one count of failing to remain at the scene of an accident involving disfigurement and permanent disability of another. Bates was sentenced to concurrent terms of imprisonment of six and five years, respectively, and was ordered to pay restitution to the victim.

¶ 2. On appeal, Bates raises the following issues which we quote verbatim:

I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT.
II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR A NEW TRIAL.

¶ 3. We find no error; therefore, we affirm Bates’s conviction and sentence.

FACTS

¶ 4. On Friday, August 27, 2004, Terry and Alice Hammersmith were riding their motorcycles single file on Hammond Hill Road, a two-lane road in Tate County. As the couple was heading south on Hammond Hill Road, Terry observed oncoming headlights over the hill. Terry moved toward the right-hand side of the road and looked in his rear-view mirror to make sure that his wife had pulled over behind him, as was their custom when they faced oncoming traffic on a two-lane road.

¶ 5. Terry got over as far as he could, but was forced off the road by a white Ford pickup, driven by Bates, which was traveling toward them in the southbound lane. Unable to control his motorcycle, Terry fell. As he was falling, he heard the impact of the truck with his wife’s motorcycle and her screams as she was thrown from her motorcycle into a ditch. As a result of the collision, Alice lost a foot. Johnny Wilson was following Bates in his vehicle and witnessed the accident. He stopped briefly to ascertain whether Bates’ truck had struck Alice.

¶ 6. At the time of the accident, Bates had just left a gathering of friends where he and the other men had consumed “about a case or two” of beer. Bates left the scene of the accident without identifying himself or rendering any assistance to either Alice or Terry. While Terry was attempting to attend to his wife, Wilson also left the scene.

¶ 7. Terry provided officers with a description of the truck; however, the police did not receive any leads for several months. The following January, after learning that a reward had been offered, John Mabrey went to the sheriffs department with information concerning the accident. Based on the information from Mabrey, officers went to Bates’s home, interviewed him, and inspected his white Ford pickup truck. The officers observed damage on the side of Bates’ truck, extending from the front of the truck down the side quarter panel to where the quarter panel and door meet. The damage included an indentation in the side of the truck which matched the ball from the handle grips of Alice’s motorcycle. Bates provided no explanation for the damage to his vehicle and, at trial, testified that he had never been involved in any accident.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Denial of Motion for Judgment Notwithstanding the Verdict

¶ 8. In this issue, Bates argues that the verdict of the jury is against the overwhelming weight of the evidence. Although he alludes to the weight of the evidence, we interpret that to mean sufficiency of the evidence, as a motion for a JNOY tests the sufficiency, not the weight, of the evidence. May v. State, 460 So.2d 778, 780 (Miss.1984). A motion for a JNOV “asks the court to hold, as a matter of law, that the verdict may not stand and that the defendant must be finally discharged.” Id. at 780-81. ‘Where a defendant has moved for [a] JNOV, the trial court must consider all of the evidence— not just the evidence which supports the State’s case — in the light most favorable to the State.” Id. at 781. In May, the Mississippi Supreme Court held that the State “must be given the benefit of all inferences that may reasonably be drawn from the evidence.” Id. (citing Glass v. State, 278 So.2d 384, 386 (Miss.1973)). When viewed in this light, if “reasonable men could not have found beyond a reasonable doubt that [the] defendant was guilty,” we must reverse. McFee v. State, 511 So.2d 130, 133 (Miss.1987). While at the same time, if the record indicates that there was sufficient evidence of such quality and weight that a reasonable and fair-minded jury could arrive at different conclusions, the verdict of guilty is “beyond our authority to disturb.” Id. at 134.

¶ 9. Bates argues that there was no in-toxilyzer or sobriety test performed to determine whether he was intoxicated at the time of the accident. It is Bates’s contention that the State was required to present evidence that he was “stumbling down drunk” to support its position that he was driving while under the influence of intoxicating liquor.

¶ 10. The record reflects that the trial court initially agreed with Bates, but upon further argument by the State, the court was convinced that the proof was sufficient to present the matter to the jury. Mississippi Code Annotated section 63-11-30(1) (Rev.1996), subsections (a) and (b) provide that “it is unlawful for any person to drive or otherwise operate a vehicle within this state who is under the influence of intoxicating liquor [or who] is under the influence of any other substance which has impaired such person’s ability to operate a motor vehicle.” Nothing in these subsections requires the State to prove that Bates had a certain blood alcohol content. The State need only prove that Bates was either operating his vehicle while under the influence of intoxicating liquor or operating his vehicle while under the influence of any other substance which impaired his ability to operate a motor vehicle. Bates’s argument concerning the lack of an intoxi-lyzer or sobriety test would only be relevant had he been indicted under Mississippi Code Annotated section 63-11-30(1) (Rev.1996), subsection (c) which provides:

(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (c) has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age to purchase alcoholic beverages under state law, or two one-hundredths percent (.02%) or more for persons who are below the legal age to purchase alcoholic beverages under state law, in the person’s blood based upon grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath as shown by a chemical analysis of such person’s breath, blood or urine administered as authorized by this chapter.

¶ 11. The State presented several witnesses, all of whom testified that everyone in attendance at the gathering was drinking beer, including Bates. The State also presented evidence that Johnny Wilson was following Bates home in case Bates needed help. Further, there was proof that Bates was over the centerline on the crest of the hill when the collision occurred. Thus, the State presented sufficient evidence from which the jury could reasonably conclude that Bates was under the influence of intoxicating liquor to the degree that his motor skills necessary to properly operate a vehicle were impaired.

¶ 12. Bates left the scene of the accident before police arrived; thus, there was no opportunity to conduct a field sobriety test. Further, the only evidence offered by Bates to prove that he was not intoxicated at the time of the accident was his testimony that when he drinks he leaves his truck with Wilson and Wilson’s wife. Bates explained that he does this because he is the caretaker of his elderly mother and he wants to ensure that, if anything were to happen, the Wilsons could take care of his mother. Bates fails to point to any evidence indicating that he was not drinking on the night of the accident. In the final analysis, there is simply no evidence to support a finding that reasonable men could not have found beyond a reasonable doubt that Bates operated his vehicle while under the influence of intoxicating liquor. We find no basis for concluding that Bates’s motion for judgment notwithstanding the verdict was improperly denied.

2. Denial of Motion for a New Trial

¶ 13. In this issue, Bates contends that the weight of the evidence presented does not support the trial court’s denial of his motion for a new trial. The decision to grant a new trial is discretionary with the trial court. McClain v. State, 625 So.2d 774, 781 (Miss.1993). It is well established that matters regarding the weight of evidence are to be resolved by the jury. Neal v. State, 451 So.2d 743, 758 (Miss.1984). The standard of review in determining whether a jury verdict is against the overwhelming weight of evidence is well settled. “[An appellate court] must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998) (citing Herring v. State, 691 So.2d 948 (Miss.1997)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will [an appellate court] disturb it on appeal.” Id. Bates has to present enough evidence to meet this burden. For the reasons stated above, we cannot say that the evidence was such that allowing a conviction to stand on this evidence would result in an unconscionable injustice. Thus, finding no error, we affirm.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY OF CONVICTION OF COUNT I — FELONY D.U.I. CAUSING SERIOUS BODILY INJURY AND SENTENCE OF SIX YEARS, AND CONVICTION OF COUNT II — FAILURE TO STOP AT THE SCENE OF AN ACCIDENT AND SENTENCE OF FIVE YEARS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SAID SENTENCES RUNNING CONCURRENTLY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

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


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Latori HILLARD a/k/a Chuck Hilliard, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01781-COA.
    Court of Appeals of Mississippi.
    Feb. 13, 2007.

      Robert Stanley Little, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.

      Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. This criminal appeal arises from a casino robbery. On June 29, 2005, a jury sitting before the Tunica County Circuit Court found Latori Hillard guilty of armed robbery and conspiracy to commit armed robbery. On August 16, 2005, the circuit court sentenced Hillard to fifteen years for the armed robbery charge and four years for the conspiracy to commit armed robbery charge. Additionally, the circuit court set the conspiracy charge to run concurrent with the armed robbery charge.. Aggrieved, Hillard appeals and raises the following issue, listed verbatim:

I. WHETHER THE TRIAL COURT ERRED WHEN IT ADMITTED INTO EVIDENCE THE PRIOR, ACCUSATORY TESTIMONY OF MR. HILLIARD’S PUTATIVE ACCOMPLICE (MR. QUARRELS) [SIC], BUT FAILED TO AFFORD THE APPELLANT AN OPPORTUNITY TO CROSS-EXAMINE THE ALLEGED ACCOMPLICE?

¶ 1. Finding that the circuit court erred when it allowed the prosecution to submit evidence in violation of Hillard’s right to confront his accusers, we reverse and remand both Hillard’s conspiracy conviction and his armed robbery conviction for a new trial.

FACTS

¶ 2. This case arises from an armed robbery that took place at Harrah’s Casino in Tunica, Mississippi. At approximately 12:00 a.m. on September 12, 2003, Greg Hollis was working his shift as a cashier at the casino. Hollis worked inside what is commonly called “the cage.”

¶ 3. During Hollis’s shift, a man walked up to Hollis and tossed a piece of paper on the counter. Hollis initially thought the note was a coupon. When Hollis read the note and realized that the man had a pistol, he quickly understood that he was being robbed. The gunman told Hollis, “hurry up, don’t play me, f-.” The gunman passed Hollis a pillowcase and Hollis put money in it.

¶ 4. Bobby Carmon, the surveillance supervisor for Harrah’s, observed that Hollis was being robbed. Carmon contacted the Tunica County Sheriffs Department and reported the robbery. Carmon also made a “dub” of the casino’s surveillance video system and called the security department.

¶ 5. Barbara Kuchenmeister, the security lead at Harrah’s at the time of the robbery, received a report from the surveillance department that Hollis was being robbed. Kuchenmeister ran towards the cage. As she entered the casino floor, she saw two men run in the opposite direction. Kuchenmeister followed them out of the casino entrance where she saw a white car with a dark roof leave the parking lot. Kuchenmeister returned to the cage, posted a guard there, and called Bob Casey, the security manager for Harrah’s. Casey went to the casino and waited for authorities to arrive.

¶ 6. Nathaniel Dawson, a deputy with the Tunica County Sheriffs Department, was on his way to Harrah’s in response to Cannon’s robbery report. Before he arrived, he saw a white Ford car that matched Kuchenmeister’s description of the car that left Harrah’s. After the white Ford ran a stop sign, Deputy Dawson turned on his blue lights, stopped the white Ford, and radioed for assistance.

¶ 7. Deputy Dawson found one person in the white Ford. That occupant was Mario Clark. Deputy Dawson placed Clark in handcuffs, put him in the back seat of his patrol car, and waited for Allen Thompson, an agent with the Mississippi Bureau of Investigations. After Clark consented to a search of the car, Agent Thompson found a .32 caliber revolver in the glove compartment. Clark claimed that he owned the pistol. A subsequent check with the NCIC database revealed that the pistol had been reported as stolen. Agent Thompson had the white Ford towed to the crime lab.

¶ 8. Meanwhile, Detective Sheila McKay of the Tunica County Sheriffs Department was on her way to the casino. Before she arrived, she found a hat and a pillow case on the side of the road. Detective McKay collected the hat and pillow case and continued to the casino. At the casino, Detective McKay reviewed the surveillance footage. According to Detective McKay, she recognized the man who robbed Hollis as Latori Hillard.

¶ 9. Hillard turned himself into custody on September 15, 2003. To be exact, Hil-lard’s father called the Tunica County Sheriffs Department and asked Deputy Dennis Allen to pick up Hillard. Deputy Allen met with Hillard’s father and took Hillard into custody. Within an hour, Agent Thompson met with Hillard. Agent Thompson fingerprinted Hillard and later delivered those fingerprints to Steve Chancellor at the Mississippi Crime Lab.

¶ 10. Chancellor, a crime scene investigator with the Mississippi Bureau of Investigations, processed the white Ford for fingerprints. Chancellor found nineteen sets of latent fingerprints on the car’s exterior. However, he was not able to find any fingerprints inside the car. Agent Chancellor collected the fingerprints but he could not say to whom the prints belonged. Andre Nagoski of the Mississippi Crime Lab, however, compared Hillard’s fingerprints with the latent prints from the exterior of the white Ford. Nagoski found that ten sets of prints taken from the exterior of the Ford matched the fingerprints Agent Thompson collected from Hil-lard.

PROCEDURAL HISTORY

¶ 11. On February 8, 2005, the Tunica County Grand Jury returned an indictment against Hillard. By that indictment, the grand jury charged Hillard with armed robbery and conspiracy to commit armed robbery. Hillard pled not guilty. Accordingly, the matter proceeded to trial. On the first day of trial, the prosecution called Greg Hollis, Deputy Dawson, Detective McKay, Agent Thompson, Agent Chancellor, and Andre Nagoski. After Nagoski testified, the court recessed for the evening.

¶ 12. The next morning, the prosecution intended to call Ronnie Quawrells as a witness. Prior to Hillard’s trial, Quawrells had been convicted of conspiracy to commit armed robbery of the same crime for which Hillard faced trial. When deputies retrieved Quawrells, he refused to testify against Hillard. The circuit court judge warned Quawrells that he would be in contempt if he continued to refuse to testify. Regardless, Quawrells remained adamant that he would not testify against Hillard. The circuit court judge found Quawrells in contempt and ordered him returned to custody. An hour later, the circuit court judge again ordered Quaw-rells before the court. Again, Quawrells refused to testify against Hillard.

¶ 13. Quawrells’s testimony severely implicated Hillard as the principle participant in the casino robbery. Because Quawrells refused to testify, the prosecution sought alternative means to introduce Quawrells’s prior testimony. The prosecution sought to read Quawrells’s prior testimony before the jury.

¶ 14. Hillard objected and sought to exclude Quawrells’s prior testimony. Hil-lard submitted that his Sixth Amendment right to confront witnesses against him would be violated if the circuit court allowed the prosecution to read Quawrells’s prior testimony before the jury. Hillard noted that he never had an opportunity to cross-examine Quawrells during Quaw-rells’s conspiracy trial and he would not be able to cross-examine Quawrells if his pri- or testimony was read to the jury.

¶ 15. The prosecution argued that Hil-lard’s Sixth Amendment rights would not be violated if the circuit court allowed Quawrells’s prior testimony to be read into evidence because certain factors of reliability indicated that Quawrells’s prior testimony was trustworthy. The circuit court agreed with the prosecution. The prosecution read Quawrells’s prior testimony before the jury.

¶ 16. In his prior testimony, Quawrells implicated Hillard and attempted to exhon-erate himself. Quawrells testified that Hillard wanted to rob Harrah’s and that Hillard “staked out” Harrah’s prior to the robbery. Quawrells also testified that he did not take Hillard seriously. However, Quawrells testified that he saw Hillard brandish a pistol and take a pillowcase full of money from the cashier at Harrah’s. Naturally, Hillard was not able to cross-examine Quawrells. The prosecution rested after Quawrells’s prior testimony was read into the record.

¶ 17. Hillard then presented an alibi defense. Hillard called Jack Thomason. Thomason testified that, on the night of the robbery, Hillard was at the Delta Bluff Apartments in Walls, Mississippi until approximately 11:30 p.m. or 12:00 a.m. Tho-mason did not see Hillard after 12:00 a.m. On cross-examination, Thomason testified that Walls was approximately fourteen miles from the casino and that one could drive to the casino from Walls in about ten to fifteen minutes.

¶ 18. Notwithstanding Hillard’s alibi defense, the jury found Hillard guilty of both armed robbery and conspiracy to commit armed robbery. Hillard appeals.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED WHEN IT ADMITTED INTO EVIDENCE THE PRIOR, ACCUSATORY TESTIMONY OF MR. HILLIARD’S PUTATIVE ACCOMPLICE (MR. QUARRELS), [SIC] BUT FAILED TO AFFORD THE APPELLANT AN OPPORTUNITY TO CROSS-EXAMINE THE ALLEGED ACCOMPLICE?

¶ 19. Hillard claims the circuit court erred when it allowed the prosecution to read Quawrells’s prior testimony before the jury. According to Hillard, the circuit court violated his Sixth Amendment right to confront his accusers. Hillard submits that reversible error resulted.

¶ 20. The admissibility of evidence rests within the circuit court’s discretion. Peterson v. State, 671 So.2d 647, 655 (Miss.1996). If the circuit court incorrectly perceived the applicable legal standard in its fact findings, this Court applies a substantially broader standard of review. Id. at 656. The circuit court must exercise its discretion within the Mississippi Rules of Evidence. Id. We will reverse when the circuit court abuses its discretion and, even then, only if that abuse of discretion causes prejudice to the opposing party. Id.

¶ 21. Hillard claims that, by permitting the prosecution to read Quawrells’s prior testimony, the circuit court violated the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the United States Supreme Court held that “the Confrontation Clause of the Federal Constitution’s Sixth Amendment bars the admissibility of out-of-court testimonial statements by an unavailable witness offered in a criminal trial to prove the truth of a matter asserted (also known as hearsay) unless the defendant has had a prior opportunity to cross-examine the witness about the statement.” Frazier v. State, 907 So.2d 985(¶ 36) (Miss.Ct.App.2005).

¶ 22. As a result, “testimonial hearsay must be exposed to confrontation by way of cross-examination prior to reaching admissible status, while non-testimonial hearsay does not trigger the need for confrontation to be admissible.” Id. at (¶ 39). “Thus, our application of Crawford to the present facts depends upon a determination of whether the evidence admitted is ‘testimonial.’ ” Id. Crawford declined to provide a firm definition of “testimonial” evidence. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. Even so, Crawford did provide examples of “testimonial” evidence. Id. According to Crawford, prior testimony at a preliminary hearing, before a grand jury or at a former trial, and prior testimony during police interrogations, are all examples of “testimonial” evidence. Id.

¶ 23. Under Rule 801(c) of the Mississippi Rules of Evidence, “[hjearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” (internal quotations omitted). “Hearsay is not admissible except as provided by law.” M.R.E. 802. The prosecution read Quaw-rells’s prior testimony into the record. The record contains no indication that the prosecution introduced Quawrells’s prior testimony for any purpose other than to prove the truth of the matter asserted— that Hillard robbed the casino.

¶24. We now address whether Quaw-rells’s prior testimony was “testimonial” evidence. Applying Crawford we find that it is most assuredly “testimonial.” Crawford specifically lists prior testimony at a former trial as one of the examples of “testimonial” evidence that must be subjected to cross-examination. There is no doubt that Hillard did not get an opportunity to cross-examine Quawrells at Quaw-rells’s trial, nor did Hillard get to cross-examine Quawrells at his own trial. Accordingly, we find that the circuit court erred when it allowed the prosecution to read Quawrells’s prior testimony into evidence.

¶ 25. Having found that the circuit court erred when it allowed the prosecution to introduce Quawrells’s prior testimony, we now consider whether Hillard was prejudiced by the admission of that evidence. We are of the opinion that Hillard was most certainly prejudiced. True enough, Hollis identified Hillard as the man who robbed him and Detective McKay identified Hillard from the casino surveillance footage. Still, Quawrells testified as a direct witness to Hillard’s involvement and participation in the planning and execution of the robbery. Quawrells was the only witness to testify as to Hillard’s actions after the robbery. Quawrells offered the testimony that tied the prosecution’s case together. As such, we find that reversible error resulted.

¶ 26. Our decision affects both Hillard’s conspiracy conviction and his armed robbery conviction. We must reverse and remand Hillard’s conspiracy conviction. To prove a prima facie case of conspiracy, the prosecution bears the burden of proving, beyond a reasonable doubt, that two or more people recognized their entry into a common plan to commit a crime and that they knowingly intended to further the plan’s common purpose. Miss.Code Ann. § 97-l-l(a)(h) (Rev.2000); Franklin v. State, 676 So.2d 287, 288 (Miss.1996).

¶ 27. Without Quawrells’s testimony, there is absolutely no evidence that Hillard formed a “union of the minds” to commit armed robbery. The State submits that, even lacking Quawrells’s testimony, there existed sufficient evidence to sustain Hillard’s conspiracy conviction in that the person seen leaving the casino, allegedly Hillard, was seen leaving with another person. Even under the appropriate standard of review, as favorable as it is to the State, Hillard’s having been seen leaving the casino does not demonstrate that Hillard formed a union of the minds with fellow conspirators. True enough, a conspiracy agreement may be inferred from the circumstances by “declarations, acts, and conduct of the alleged conspirators.” Id. Even so, the only discernable inference that Hillard left the casino with another person is exactly that. That evidence could be interpreted a number of ways. It could indicate conspiracy, but it could also indicate guilt as an accessory after the fact. In any event, such proof, without more, does not rise to the level of proof beyond a reasonable doubt.

¶ 28. We find that, discounting the inadmissible evidence, there was quite meager evidence to sustain Hillard’s conviction. However, all the evidence admitted at trial was sufficient to sustain Hil-lard’s conviction. Where we, on review, find the circumstances as we do, the proper result is to reverse and remand. See Campbell v. State, 798 So.2d 524(¶27) (Miss.2001) (Justice Banks, concurring in part and dissenting in part) (citing Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988)). “Even when the only evidence on an issue has been declared inadmissible, the proper procedure is to remand.” Gavin v. State, 785 So.2d 1088(¶ 28) (Miss.Ct.App.2001) (emphasis in original). Accordingly, our standard of review requires that we reverse Hillard’s conspiracy conviction and remand this matter to the circuit court for a new trial.

¶ 29. As for Hillard’s armed robbery conviction, we must reverse it and remand it for a new trial, as well.

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of armed robbery. ...

Miss.Code Ann. § 97-3-79 (Rev.2006). The prosecution’s case hinged upon (a) Hollis’s eyewitness identification of Hil-lard, (b) Detective McKay’s identification of Hillard according to her review of the casino surveillance footage, and (c) Quaw-rells’s eyewitness testimony, elicited dim-ing his own trial, as to the events prior to, during, and after the robbery. Without Quawrells’s testimony, the weight of proof of Hilliard’s guilt is substantially diminished. True .enough, the prosecution presented evidence from Hollis, who identified Hillard during a brief and tense encounter under a threat of violence. While it is true that Hollis identified Hillard as the man that robbed him at gunpoint and Detective McKay testified that, according to her review of the casino surveillance footage, Hillard robbed Hollis, we must reverse and remand for a new trial. Where prejudice from an erroneous admission of evidence dims in comparison to other overwhelming evidence, we may refuse to reverse. Carter v. State, 722 So.2d 1258 (¶ 14) (Miss.1998). Here, we cannot say that Quawrells’s testimony dims in comparison to Hollis’s testimony or Detective McKay’s.

¶ 30. Quawrells directly implicated Hil-lard as the gunman, while Detective McKay testified that, according to her review of surveillance footage, Hillard was the gunman. As for Hollis, Hillard’s counsel pointed out inconsistencies in Hollis’s identification. Hollis had previously described the gunman as having worn sunglasses. At trial, Hollis testified that the gunman did not wear sunglasses. Hollis further testified that he mistakenly thought the gunman wore sunglasses because the gunman wore a hat that cast a shadow over his eyes. We find that the evidence against Hillard is such that we must not discharge his conviction. However, under the precise circumstances of this case, we find that the proper course of action is to reverse and remand for a new trial consistent with this opinion.

¶ 31. THE JUDGMENT OF THE TU-NICA COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ARMED ROBBERY AND SENTENCE OF FIFTEEN YEARS AND COUNT II, CONSPIRACY TO COMMIT ARMED ROBBERY AND SENTENCE OF FOUR YEARS TO RUN CONCURRENTLY TO SENTENCE IN COUNT 1, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS REVERSED AND REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

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

      . Mary Guillon, the "cage shift manager” at Harrah’s was asked to "count the drawer down because there had been a robbery.” Guillon counted the money and, by deducting the remaining money from the amount that should have been present, Guillon concluded that the robber took slightly more that $42,000.

      . According to Carmon's trial testimony, "[a] dub is a composite of several tapes ... combined into one.”

      . Detective McKay later gave the hat and pillow case to Agent Thompson.


author: CHANDLER, J.,

text:
    The ESTATE OF Maggie HAZELTON by and through Darlene HESTER, Administratrix of the Estate of Maggie Hazelton, for the Use and Benefit of The Estate of Maggie Hazelton, and for the Use and Benefit of the Wrongful Death Beneficiaries of Maggie Hazelton, Appellant v. H. Conner CAIN and Richard L. Smith, Appellees.
    No. 2005-CA-01484-COA.
    Court of Appeals of Mississippi.
    Feb. 27, 2007.

      F.M. Turner, attorney for appellant.
    Walter William Dukes, Gulfport, attorney for appellees.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Darlene Hester, Maggie Hazelton’s representative, appeals from a summary judgment granted in favor of the defendants in a civil action for personal injuries and wrongful death allegedly resulting from negligent care and treatment rendered to the decedent, Hazelton, while she was a resident at Driftwood Nursing Center in Gulfport, Mississippi.

¶ 2. Hester brought suit against Connor Cain, president and controlling shareholder of Driftwood, and Richard Smith, former administrator of Driftwood, alleging negligence, medical malpractice, fraud, and wrongful death. Cain and Smith each filed motions for summary judgment. The Harrison County Circuit Court granted both motions, finding that no genuine issue of material fact existed and that the defendants were entitled to a judgment as a matter of law. Hester appeals, arguing:

I. WHETHER A GENUINE ISSUE OF MATERIAL FACT EXISTS TO RENDER SUMMARY JUDGMENT IMPROPER.

¶ 3. Finding no error in the lower court’s decision, we affirm.

FACTS

¶4. Maggie Hazelton was admitted to Driftwood Nursing Center in Gulfport, Mississippi on April 9, 1999, at the age of eighty-three. She remained a resident of Driftwood until May 30, 1999, when she was discharged. In June of 1999, Hazel-ton was readmitted and then discharged again on August 11, 1999. Hazelton passed away the next day, on August 12th, while a patient, at Memorial Hospital in Gulfport.

¶ 5. On July 27, 2001, Darlene Hester filed a civil action against Driftwood Nursing Center, H. Conner Cain and Richard L. Smith for personal injuries and the wrongful death of Hazelton resulting from alleged negligent care and treatment she received while a resident of Driftwood. Cain was sued in his capacity as the licensee and president of Driftwood and Smith as the administrator of the nursing home. Smith was employed as administrator of the facility upon Hazelton’s initial admission, but he resigned as administrator on June 15,1999. Smith was not the administrator during the last two months of Ha-zelton’s residency.

¶ 6. Hester claims that Hazelton was the victim of a pattern and practice of neglect. As a result, Hazelton suffered pneumonia, falls, unexplained injuries, bone fractures, urinary and kidney infections, weight loss, pressure sores, poor hygiene, sepsis and ultimately death. Hester asserts that Driftwood’s negligent conduct caused Ha-zelton to lose her personal dignity and caused her death to be preceded by extreme and unnecessary pain, degradation, •anguish, unnecessary hospitalizations, disfigurement and emotional trauma.

¶ 7. In her initial complaint, Hester alleged that Smith and Cain breached their duty of reasonable care by failing to provide a minimum number of staff necessary to assist the residents, to provide adequate supervision, to respond to serious symptoms Hazelton exhibited, to develop and. implement an appropriate residential care plan, and to maintain current records of the residents, and other forms of negligent care. Hester also maintained that Cain and Smith committed fraud by misrepresenting to her that the home was able to provide twenty-four hour a day supervision and care, and that Driftwood employed an adequate amount of staff who were properly trained.

¶ 8. On appeal, Hester raises a more generalized allegation, claiming that Cain and Smith had a legal duty of care pursuant to the guidelines established for nursing homes in the state statutes and legislative regulations. Further, Hester asserts that Cain and Smith are liable because they either knew or should have known of the alleged tortious conduct exhibited against Hazleton, and should have taken steps to prevent it.

¶ 9. On March 24, 2003, Cain and Smith filed their respective motions for summary judgment, arguing that Hester failed to provide sufficient evidence to prove a genuine issue of material fact pertaining to the elements of negligence and that they were entitled to a judgment as a matter of law.

¶ 10. On November 7, 2005, the lower court granted both summary judgment orders, and thereafter entered final judgments of dismissal for both Smith and Cain, as well as a dismissal without prejudice in favor of Driftwood. In the order, Driftwood agreed to waive any statute of limitation defense should Hester bring a subsequent action relating to the same claims asserted in the present action. Hester, therefore, perfected her appeal solely as to Cain and Smith.

STANDARD OF REVIEW

¶ 11. This Court reviews the record de novo to determine whether a motion for summary judgment was properly granted. Lowery v. Guaranty Bank and Trust Go., 592 So.2d 79, 81 (Miss.1991). A motion for summary judgment should be granted if it can be shown by the evidence that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). On a motion for summary judgment, a court does not try issues of fact; it can only determine whether there are issues to be tried. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1209-10(¶ 6) (Miss.2001). All evidence must be viewed in the light most favorable to the non-movant, and the court should presume that all evidence in the non-movant’s favor is true. Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993).

LAW AND ANALYSIS

¶ 12. The question before us is whether a genuine issue of fact exists to establish personal liability against Driftwood’s licensee and administrator. We hold that summary judgment was proper because the record demonstrates insufficient evidence to withstand the motion.

¶ 13. In a negligence action, the plaintiff bears the burden of producing sufficient evidence to establish the existence of the conventional tort elements of duty, breach of duty, proximate causation, and injury. Bailey v. Wheatley Estates Corp., 829 So.2d 1278, 1282(¶ 17) (Miss.Ct.App.2002). Hester argues that a genuine issue of material fact exists as to whether Cain and Smith had a legal duty pursuant to the statutes and regulations for nursing homes, and also as to whether Cain and Smith breached that alleged duty. Hester maintains that Cain, as licensee for Driftwood, and Smith, as administrator, either knew or should have known of the alleged negligence against Hazelton, and that both men should have objected to the conduct or taken steps to prevent it. Cain and Smith argue that because they did not have direct involvement in any alleged tort, they are not liable. Miss. Printing Co. v. Maris, West & Baker, Inc., 492 So.2d 977, 978 (Miss.1986).

A. Duty

¶ 14. Hester asserts that Cain and Smith owed a legal duty to Hazelton under Mississippi Code Annotated Sections 43-11-1 to -13 (Rev.2004) and the State’s internal nursing home regulations. Section 43-11-13 authorizes the Mississippi State Department of Health to grant and revoke licenses for institutions assisting the aged and infirm. Miss.Code Ann. § 43-11-13. The rules, regulations and standards governing nursing homes are recorded in the Department of Health’s Rules, Regulations and Minimum Standards for Institutions for the Aged or Infirm.

¶ 15. Hester argues that because a license is personal to a licensee, the licensee is therefore personally responsible for compliance with the rules and regulations and “shall be the person who [sic] the Department ... will hold responsible for the operation of the home in compliance with these regulations.” Miss. Dept. of Health, Rules, Regulations, and Minimum Standard for Institutions for the Aged or Infirm, Rule 402.1 (1999). Likewise, the administrator must also hold a separate license which requires that he or she have the “authority and responsibility for the operation of the institution in all its administrative and professional functions.” Id., Rule 403.1.

¶ 16. Violation of a statute, regulation, or ordinance may support a cause of action for negligence per se where (1) the plaintiff is within the class protected, and (2) the harm sustained is the type sought to be prevented. Palmer v. Anderson Infirmary Benevolent Ass’n., 656 So.2d 790, 795 (Miss.1995) (citing Boyer v. Tenn. Tom Constructors, 702 F.2d 609, 611 (5th Cir.1983)). Section H, Rule No. 408.1 of the Minimum Standards states that, a patient “has a right of action for damages or other relief for deprivations of infringements of his right to adequate and proper treatment and care established by an applicable statute, rule, regulation or contract....”

¶ 17. Although the statutes state that the purpose of section 43-11-1 is to establish standards to protect individuals in aged or infirm institutions, the record does not provide evidence to support the second prong required to find negligence per se. Hester merely makes general assertions that Hazelton suffered certain injuries, but no affidavit or substantive evidence is shown to either prove the alleged harm or to demonstrate a causal link between Cain and Smith to Hazelton. Likewise, no evidence was shown that Cain or Smith authorized or negligently failed to remedy alleged misconduct by subordinates.

¶ 18. Our supreme court held in Moore v. Mem’l Hosp., 825 So.2d 658, 665(¶24) (Miss.2002), that alleged violations of internal regulations do not give rise to an independent cause of action for damages and that although a violation of a regulation may serve as evidence of negligence, it does not, by itself, create a separate cause of action. While Moore focused on the State Board of Pharmacy’s internal regulations, we find the holding to be applicable to the present case. In Moore, the mother of a child who was born with deformities as the result of medication taken by the mother during pregnancy sued the pharmacy which filled the prescription. The woman argued that the pharmacy was negligent by selling a drug which was contraindicated for pregnant women. She claimed that the state Board of Pharmacy’s regulations created a legal duty for the pharmacy. Upon review of the state board’s regulations, the court did not find any language which established a legal duty of care to be applied in a civil action. Id.

¶ 19. Similar to Moore, we find no language in the nursing homes statutes or regulations to expressly create a legal duty for licensees or administrators. As stated above, Sections 43-11-1 to -13 sets forth statutory requirements for nursing homes in Mississippi. No language is included which creates a specific legal duty for either a licensee or an administrator. According to the Minimum Standards, receiving a license for the nursing home makes the licensee “responsible for the operation of the home in compliance with these regulations,” and gives an administrator, “authority and responsibility for the operation of the institution in all its administrative and professional functions.” Minimum Standards, Rule 402.1 and 403.1.

¶ 20. Therefore, we must look at relevant case law to determine if a legal duty exists for a nursing home licensee or its administrator. It is well established that a nursing home or its owner may be held liable under general tort law principles for negligence regarding the care of a resident. Lagrone v. Hetman, 233 Miss. 654, 662, 103 So.2d 365, 368 (1958) (jury was properly instructed that nursing home had a duty to use reasonable care for the safety of the plaintiff). However, we decline to extend this same duty to a licensee or administrator.

¶21. In Turner v. Wilson, 620 So.2d 545, 548 (Miss.1993), our supreme court held that “Mississippi follows the general rule that individual liability of corporate officers or directors may not be predicated merely on their connection to the corporation but must have as their foundation individual wrongdoing.” The officer or director must have some sort of direct participation, such as being the “guiding spirit behind the wrongful conduct or the central figure in the challenged corporate activity.” Id. Turner further recognized:

A director, officer, or agent is liable for the torts of the corporation or of other directors, officers, or agents when, and only when, he has participated in the tortious act, or has authorized or directed it, or has acted in his own behalf, or has had any knowledge of, or given any consent to, the act or transaction, or has acquiesced in it when he either knew or by the exercise of reasonable care should have known of it and should have objected and taken steps to prevent it.

Id. at 548-49 (citing 19 C.J.S. Corporations Section 544, p. 175 (1990)). Thus it follows that a corporate director is not personally hable to a third party merely by reason of his corporate status for the torts committed by other personnel. Some showing of direct personal involvement by the corporate officer in a decision or action which is causally related to the plaintiffs injury is required. Id.

¶ 22. Hester fails to provide evidence to show that Cain or Smith directed or authorized any of the alleged conduct towards Hazelton. Cain stated that he was not active in the day to day management of the nursing home and did not directly supervise or control the activities of any employees. Smith also stated that he did not supervise or control the activities of any Driftwood employees or agents whom Hester claims to have harmed Hazelton. Hester did not offer any evidence or testimony to rebut these assertions. Therefore, we find Hester’s argument to be without merit.

B. Breach of Duty

¶ 23. Notwithstanding our finding that no separate legal duty exists for Cain or Smith, we will address Hester’s assertion of breach of duty. Hester maintains that Cain, as licensee for Driftwood, and Smith, as administrator, were negligent because they either knew or should have known of the alleged negligence against Hazelton, and should have objected to the conduct or taken steps to prevent it. Cain and Smith argue that because they did not have direct involvement in any alleged tort, they are not hable. Miss. Printing Go., 492 So.2d at 978.

¶ 24. In order to withstand summary-judgment, the non-moving party may not rely on general allegations or denials in the pleadings, but “must rebut by producing significant probative evidence showing that there are indeed genuine issues for trial.” Foster v. Noel, 715 So.2d 174, 180(¶ 35) (Miss.1998). As noted above, Hester did not offer such evidence.

¶ 25. Cain testified that he conducted almost daily “walk-throughs” of the facility and regularly spoke with either Smith or the head of the nursing staff. Cain inquired about dietary concerns and patients who were reported to have pressure sores. No records indicate that Cain was ever made aware of Hazelton’s specific condition or that any complaints were filed on Hazelton’s behalf. Likewise, Smith asserted that he did not directly supervise or control the activities of any Driftwood employees whom Hester alleges caused Ha-zelton harm. Smith noted that he was the administrator of Driftwood for only a few months of Hazelton’s residency. He resigned as administrator approximately two months before Hazelton passed away. Yet Hester asserts that a corporate officer or agent may be liable for the torts of the corporation or of other directors, officers or agents when he either knew or in the exercise of reasonable care should have known of the tortious conduct and should have taken steps to prevent it. Turner v. Wilson, 620 So.2d 545, 548-49 (Miss.1993).

¶ 26. Hester relies on surveys and inspections conducted by the Mississippi Department of Health to prove that Cain and Smith should have been aware of the deficiencies, and that the existence of these reports created a sufficient issue of material fact as to Cain’s and Smith’s neglect of their legal duties. While these reports show that Driftwood was cited in July 1998 and April 1999 as needing to improve a variety of areas, the reports do not establish a causal connection between Cain and Smith and Hazelton’s personal care, • or that the men negligently handled their duties, or that any perceived problems were not readily corrected by the nursing home. While the surveys include the date on which the violations occurred, they do not include patients’ or employees’ names involved in the alleged violations.

¶ 27. Further, Hester does not offer any evidence linking the surveys to Hazel-ton. One of the surveys was conducted almost a year before Hazelton even became a resident of Driftwood. The second survey was conducted in the first few weeks of Hazelton’s stay at Driftwood, but does not establish any connection to Hazel-ton’s care. As we stated above, mere allegations of a breach of internal regulations do not establish a cause of action. Therefore, Hester’s argument is without merit.

¶ 28. We find the evidence was insufficient to establish a genuine issue of material fact as to a licensee’s or administrator’s legal duty or that Cain and Smith breached any such duty. Therefore, we find it unnecessary to discuss the remaining elements of proximate cause and damages. Accordingly, we affirm the lower court’s granting of the motion for summary judgment.

¶ 29. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT 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: ISHEE, J.,

text:
    Ruby Lane Mabry SPENCER, a/k/a Ruby Lane Mabray Spencer, Individually and as Executrix of the Estate of Ethel Lucille Mabry Hudspeth, Deceased, Appellant v. Eva Mae HUDSPETH, Joanne Hudspeth Sealy, and Libby Red Ross, Appellees.
    No. 2006-CA-00058-COA.
    Court of Appeals of Mississippi.
    Feb. 27, 2007.

      Robert Q. Whitwell, Ashland, attorney for appellant.
    Leigh Ann Darby, Senatobia, attorney for appellees.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On December 11, 2005, the Chancery Court of Tate County entered an order denying Ruby Lane Mabray Spencer’s motion to set aside a warranty deed of gift from Ethel Mabray Whitsell Hudspeth to Montie L. Hudspeth that conveyed forty acres of land. The court ruled that the deed shall remain in full force and effect. Aggrieved by the judgment, Spencer appeals. Finding error, we reverse and render.

FACTS

¶ 2. The forty acres of land that is in dispute was acquired by Ethel Hudspeth in 1941. Ethel first married R.M. Whit-sell, and this forty acres was acquired by Ethel as part of the divorce proceedings between her and Mr. Whitsell. Ethel subsequently married Montie L. Hudspeth in February of 1946. The couple never had children. The forty acres adjoined land of Ethel’s brother, Walter Mabray, who is the father of Ruby Lane Mabray Spencer. Thus, Ethel is the paternal aunt of Ruby Spencer.

¶ 3. In June of 1972, Ethel prepared a will in which she named her niece Ruby Spencer as executrix, sole beneficiary, and devisee of her estate. The forty acres of land, which is the main conflict between the parties, was included in this will.

¶ 4. In July of 1983, Ethel had a stroke and suffered a heart attack. In 1984 she broke her hip. After these two incidents, Ethel was in poor health and was virtually bedridden. Ruby testified that after Ethel’s stroke and the breaking of her hip, Ethel was disoriented, very weak, and frail. Because of Ethel’s infirmity, Ruby, her two sisters, and Montie took care of her. In April of 1985, Ethel was placed in a nursing home in Sardis, Mississippi. Multiple witnesses testified that Ethel was unable to communicate and was non-responsive after being placed in the nursing home.

¶ 5. Prior to Ethel’s poor health, she was a very independent and capable person. She was the one who mainly handled her and Montie’s financial affairs. According to Ruby, Montie was not capable of handling the financial affairs. Ruby testified that Montie was poorly educated. She further stated that he relied on his brother and sister-in-law, Marvin and Eva Hud-speth, to help him with financial matters and to drive him places.

¶ 6. Montie died on October 30, 1988, and Ethel died three months later on January 18,1989. On October 26, 1988, four days prior to his death, Montie conveyed his interest in the forty acres to his brother, Marvin Hudspeth. The appellees are Marvin Hudspeth’s heirs at law, including his widow, Eva Hudspeth. Prior to Ethel’s death, Chancellor Leon E. Hannaford, Jr., made Ruby conservator of Ethel’s estate. Ruby testified that she discovered a deed, which was dated June 30, 1986, that conveyed Ethel’s interest in the forty acres to Montie. Ethel signed her name “Eth-eld” on the deed as opposed to “Ethel.” The deed was notarized by Naomi Baker, who is the sister of Montie’s sister-in-law, appellee, Eva Hudspeth. Naomi Baker testified that Ethel was not present when she notarized the signature on the deed. Ruby also testified that she discovered an account that listed Ethel, Montie, and Marvin as the account holders. Ruby further stated that a $10,000 check was written out of the account to Helen Doran, who is Marvin’s daughter. In addition, she said that a $5,000 check was signed by Montie and Marvin and given to Marvin. According to Ruby, various savings bonds were also unaccounted for, and the beneficiary of Ethel’s retirement funds, who was Ruby, was changed leaving the funds to Montie and Marvin. Lastly, the record indicates that Montie paid an attorney, Kirk Moore, to draft a power of attorney. Moore testified that Montie and Marvin came to his office and asked him to draft the deed that conveyed the forty acres to Montie.

¶ 7. Ruby argues that Ethel was incapable of understanding the nature of such transactions and that she was not competent to make such decisions. The chancellor ruled that the deed was valid. Aggrieved by the chancellor’s ruling, Ruby appeals and asserts the following issues for this Court’s review: (1) whether or not a confidential and/or fiduciary relationship existed between Ethel and Montie Hud-speth that created an automatic presumption that the June 30, 1986 deed was invalid, thus shifting the burden of proof to the defendants to prove, by clear and convincing evidence, that the deed was valid; and (2) whether or not Ethel Hudspeth had full knowledge and deliberation of her actions and the consequences of those actions.

STANDARD OF REVIEW

¶ 8. Our standard of reviewing the decision of a chancellor is well settled: “the findings of a chancellor will not be disturbed by this Court unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Ward v. Ward, 825 So.2d 713, 715(¶ 5) (Miss.Ct.App.2002).

ISSUES AND ANALYSIS

I. Whether or not a confidential and / or fiduciary relationship existed between Ethel and Montie Hudspeth that created an automatic presumption that the June 30, 1986, deed was invalid, thus shifting the burden of proof to the defendant to prove, by clear and convincing evidence, that the deed was valid.
II. Whether or not Ethel Hudspeth had full knowledge and deliberation of her actions and the consequences of those actions.

¶ 9. Due to the similarity of these two issues, we will discuss them together. To begin we note that there are two doctrines of undue influence in Mississippi that, if proved, may invalidate a deed: traditional undue influence and confidential relationship. The chancellor found that undue influence was inapplicable; however, he did not decide whether a confidential relationship existed between Ethel and Montie. If there was such a relationship, it would constitute a separate ground under which a court may find undue influence. Greenlee v. Mitchell, 607 So.2d 97,105 (Miss.1992). More specifically, finding that a confidential relationship exists creates a presumption of undue influence that a grantee must rebut to show the validity of a deed. Id.

¶ 10. The Supreme Court stated that the first question in deciding whether a party’s actions constituted undue influence was to determine if there existed a confidential relationship between the grantor and the grantee. Smith v. Smith, 574 So.2d 644, 651 (Miss.1990). As such, it was in error to find the deed was not a result of undue influence without taking into account whether there existed a confidential relationship.

¶ 11. A confidential relationship is defined as follows:

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

Foster v. Ross, 804 So.2d 1018, 1022-23(¶ 15) (Miss.2002) (citing Madden v. Rhodes, 626 So.2d 608, 617 (Miss.1993)). The Mississippi Supreme Court has set out factors to be considered when determining whether or not a confidential relationship exists. These factors are (1) whether one person has to be taken care of by another, (2) whether one person maintains a close relationship with another,- (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains a joint account with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and the other. In re Moran v. Necaise, 821 So.2d 903, 906-07 (Miss.Ct.App.2002).

¶ 12. After Ethel became ill, she had to be taken care of. Montie was responsible for caring for Ethel. Ethel and Montie had been married for approximately forty years, so it is evident that the two maintained a close relationship. Montie helped care for Ethel prior to her being placed in the nursing home and continued to visit her regularly after she was admitted. After reviewing the record, it is evident that a joint account was maintained, that Ethel was physically and mentally weak, that she was of advanced age and in poor health, and that a power of attorney had been established. Based on this, we are of the opinion that a confidential relationship existed between Ethel and Montie Hudspeth.

¶ 13. In Madden v. Rhodes, 626 So.2d 608, 618 (Miss.1993), the Supreme Court stated that when a confidential and/or fiduciary relationship exists that there is an automatic presumption of undue influence regarding an inter vivos gift. The Supreme Court further stated, “When circumstances give rise to a presumption of undue influence, the burden of proof shifts to the grantee to establish by clear and convincing evidence the validity of the gift.” Id. at 624. In the present case, this creates a presumption that the deed from Ethel to Montie was a product of undue influence. That deed is invalid unless there is clear and convincing evidence to rebut the presumption.

¶ 14. The Supreme Court has established a three-pronged test to overcome the presumption of undue influence. The three prongs are: (1) that the grantee/beneficiary acted in good faith, (2) that the grantor had full knowledge and deliberation of his actions and the consequences of those actions, and (3) that the grantor exhibited independent consent and action. Murray v. Laird, 446 So.2d 575, 578 (Miss. 1984).

¶ 15. To determine whether or not a gift was executed in good faith the Mississippi Supreme Court has outlined the following five factors: (1) determination of the identity of the initiating party in seeking preparation of the instrument, (2) the place of the execution of the instrument and in whose presence, (3) the consideration and fees paid, if any, (4) by whom paid, and (5) the secrecy and openness of the execution of the instrument. Id. Kirk Moore testified that Montie and his brother Marvin came to his office and asked him to draft the deed. Moore did not witness Ethel’s signing of the deed. Moreover, Naomi Baker, the notary, stated that Ethel was in the nursing home and not present when the deed was notarized. Montie paid the fees to have the deed drafted and the consideration was for $10. The deed was executed on June 30, 1986, but was not recorded until December 29, 1986. Furthermore, Ruby testified that she had no knowledge of the deed until she was named conservator in December of 1988. After applying this test, we are of the opinion that the grantee/beneficiary did not act in good faith.

¶ 16. This case is littered with suspect instances that suggest that Ethel did not have full knowledge and deliberations of her actions or the consequences of those actions. Ethel’s signature on the deed was misspelled, she was not present when the deed was notarized, and multiple witnesses stated that Ethel did not come across as having a sound mind after having been placed in the nursing home. It appears that both Montie and Marvin had more to do' with the deed coming to fruition than Ethel. Ethel did not exhibit independent consent and action. There was no independent advice or counsel given to Ethel by any person. We are of the opinion that Ethel did not have full knowledge and deliberation of her actions or the consequences thereof. Based on these findings, Eva did not rebut the presumption, by clear and convincing evidence, that the deed was the product of undue influence.

¶ 17. The court erred in failing to consider, in the analysis of undue influence, whether a confidential relationship existed. We find there did exist between Ethel and Montie a confidential relationship, which gives rise to a presumption of undue influence in the creation of the deed conveying the forty acres. Since Eva failed to rebut this presumption by clear and convincing evidence we find that the inter vivos deed to Montie was invalid. We reverse and render judgment in favor of the appellant.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF TATE COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

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


author: BARNES, J.,

text:
    Jason TURNER, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02386-COA.
    Court of Appeals of Mississippi.
    Feb. 27, 2007.

      Daniel Christopher Jones, attorney for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before LEE, P.J., IRVING, BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Jason Turner was convicted in the Circuit Court of Simpson County of two counts of selling cocaine. He was sentenced to a term of ten years for each count, to run concurrently, in the custody of the Mississippi Department of Corrections. Turner appeals, contending that (1) the testimony of the confidential informant should have been heard at trial, (2) the trial court erred in admitting into evidence cocaine bags and transcriptions of audiotapes, and (3) the trial court erred in failing to sustain a motion for directed verdict, judgment notwithstanding the verdict (“JNOV”), or in the alternative, motion for a new trial. We find no error and affirm the conviction and sentence.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On September 18, 2003, Turner was indicted for two counts of sale of cocaine under Mississippi Code Annotated section 41-29-139 (Rev.2001). Officer Barry Coward, a criminal investigator with the Mississippi Bureau of Investigation who was working undercover, testified that Turner sold him crack cocaine on two separate occasions in Magee, Mississippi. Colloquies of both transactions were audiotaped and monitored by Simpson County Sheriffs Department narcotics task force officer, Randy Crawford.

¶ 3. On the evening of December 11, 2002, Officer Coward was accompanied by a confidential informant, Todd Barrett, in an undercover automobile in order to introduce Coward to Turner and to make an undercover drug purchase. Officer Coward testified that he purchased three grams of crack cocaine from Turner at this meeting, and made another undercover drug purchase of three grams of crack cocaine from Turner, unaccompanied by Barrett, on the evening of December 17, 2002. Officer Crawford did not witness either transaction, but listened nearby via a body wire worn by Officer Coward. On the audiotape recording of the first purchase, Turner was addressed by first name during the drug buy. The Mississippi Crime Lab later confirmed that the substance in the bags purchased both evenings was crack cocaine.

¶ 4. After his indictment on September 7, 2004, Turner filed a motion to compel disclosure of the confidential informant’s name, address, occupation, and previous criminal record. An agreed order was issued on September 30, 2004, whereby the State agreed to reveal the name of the confidential informant in the automobile with Officer Coward at the first transaction. On October 7, 2004, in the Circuit Court of Simpson County, Turner’s trial began. The State called officers Coward and Crawford to testify, as well as two forensic scientists from the Mississippi Crime Lab. Officer Coward made an in-court identification of Turner as the person who sold him the drugs. The two forensic scientists testified the substance in the bags purchased was crack cocaine and explained the procedure taken to ensure there was an authenticated chain of custody once the bags arrived at the lab. The State introduced into evidence two bags of crack cocaine weighing 2.9 and 2.0 grams. The State also introduced into evidence audiotapes of the two drug purchases, as well as transcriptions of each tape. Turner introduced into evidence two drug case offense reports, which were submitted to the district attorney, stating the amount of cocaine purchased was 3.0 grams during each buy. These amounts conflicted with the amounts submitted to the State Crime Lab, by 0.10 and 1.0 grams respectively. After the State rested, Turner moved for a directed verdict, which the court denied. The defense did not call any witnesses. The jury returned a verdict of guilty on both counts of selling cocaine. Turner was sentenced to- ten years for each count, to run concurrently, in the custody of the Mississippi Department of Corrections. Turner filed a motion for JNOV or, alternatively, a new trial, which was denied. Turner now appeals from his conviction and sentence.

ISSUES AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO HAVE THE TESTIMONY OF THE CONFIDENTIAL INFORMANT HEARD.

¶ 5. This Court’s standard of review for the admission or exclusion of evidence by the trial court is very limited. The trial judge has a great deal of discretion in evaluating the relevancy and admissibility of evidence. Jefferson v. State, 818 So.2d 1099, 1104(¶ 6) (Miss.2002). “Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse” the trial judge’s rulings. Id. (citing Hughes v. State, 735 So.2d 238, 270 (¶ 134) (Miss.1999)).

¶ 6. In his motion for JNOV or, alternatively, a new trial, Turner claims the testimony of the confidential informant, Barrett, should have been heard. Barrett did not testify because he could not be located by Turner’s defense counsel to be served a subpoena. The State had not provided Barrett’s address and phone number. However, according to the circuit court docket, the subpoena for Barrett was issued on the same day as the agreed order, September 30, 2004, and the agreed order only required the identity of Barrett, not his address. During cross-examination, Officer Coward stated he did not know the address, phone number or location of Todd Barrett. Turner maintains that if Barrett could have been located, he would have testified at trial that Turner was not the man who sold cocaine to Officer Coward. Without Barrett’s testimony at trial, Turner claims he was prejudiced.

¶ 7. Disclosure of a confidential informant’s identity is not required unless the confidential informant is to be produced at hearing or trial, or failure to disclose his or her identity will infringe on the constitutional rights of the accused, or the informant is an eyewitness to the events which lead to the charges against the defendant. URCCC 9.04(B)(2). If the informant “is not a material witness to the guilt or innocence of the accused,” disclosure is within the discretion of the trial court. Graves v. State, 767 So.2d 1049, 1052(¶ 10) (Miss.Ct.Ap.2000). However, where “the informer is an actual participant in the alleged crime, the accused is entitled to know who he is.” Id. (citing Read v. State, 430 So.2d 832, 836 (Miss. 1983)). Additionally, when the disclosure of the confidential informant’s identity is warranted, “[a]t a minimum, ... the [S]tate must, in good faith, disclose all information in its possession, including that of location.” Copeland v. State, 423 So.2d 1333, 1335 (Miss.1982) (emphasis added). Yet, there are no Mississippi cases which specify the extent of the State’s duty regarding its efforts to produce a confidential informant. Id. In certain cases the State may have a duty to show its good faith, but this requirement will be developed only on a case-by-case basis. Id. However, this duty shall not be expanded to require the State to produce the informant at trial. Id. at 1335-36.

¶ 8. In our case, since the confidential informant introduced Officer Coward to the drug dealer, he was both a participant and an eyewitness to the drug purchase. Therefore, the disclosure of his identity was required. The State complied with this requirement and provided Turner with the informant’s identity pursuant to the agreed order of September 30, 2004. There is no transcript of the hearing of the agreed order; however, the order did not require the State to provide the address, occupation, or criminal record of the confidential informant, as the defense had requested in its motion to compel disclosure. The transcript from a pre-trial hearing on October 7, 2004, indicates that the defense agreed to the State’s disclosure of the confidential informant’s identity only. The record does not indicate any complaint by Turner between the date of the agreed order and the trial over the location of Barrett.

¶ 9. It was not until after the trial, in a motion for JNOV or, alternatively, a new trial, that Turner then accused the State of knowing where the confidential informant was but failing to state his whereabouts or produce an address or telephone number. This Court is to presume that the State acted in good faith, and the defendant has the burden of proving the State acted in bad faith regarding disclosure of this information. Copeland, 423 So.2d at 1336. In this case, Turner did not present any evidence that the State deliberately withheld information about the informant’s whereabouts and thereby acted in bad faith regarding disclosure of “all information in its possession, including that of location.” See id. at 1335. Nor did Turner move for a continuance in order to obtain more information on the informant’s whereabouts. Unlike the case authority cited by Turner in his brief, the State here complied with the agreed order by divulging the informant’s identity. This information, however, proved to be insufficient to locate Barrett. Turner failed to offer any proof of bad faith on the part of the State. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE COCAINE BAGS AND TRANSCRIPTIONS OF AUDIOTAPES OF THE DRUG PURCHASE.

¶ 10. The standard of review for the relevancy and admission of evidence by the trial court is abuse of discretion. Reynolds v. State, 784 So.2d 929, 932(¶ 7) (Miss.2001) (citing Weaver v. State, 713 So.2d 860, 865(¶ 31) (Miss.1997)). Unless the trial court abuses that discretion, the trial court’s decision will not be disturbed on appeal. Towner v. State, 837 So.2d 221, 225(¶ 13) (Miss.Ct.App.2003). Only when the admission or exclusion of evidence prejudices the accused will the trial court’s decision be reversed. Id. (quoting Jackson v. State, 594 So.2d 20, 25 (Miss.1992)).

¶ 11. During trial, Turner’s counsel objected to the admission of the two cocaine bags into evidence. While he admitted the bags contained cocaine, he denied that they came from Turner. The judge overruled these objections. On appeal, Turner claims this evidence’s admission prejudiced him.

¶ 12. Turner was convicted under section 41-29-139(a)(l), which states “it is unlawful for any person knowingly or intentionally ... [t]o sell, barter, transfer ... dispense or possess with intent to sell ... a controlled substance.” Miss.Code Ann. § 41-29-139(a)(l) (Rev.2001). In order for the State to prove that what was sold to Officer Coward was a controlled substance, it was proper for the bags of that substance to be submitted into evidence. It was then the province of the jury to decide, as a question of fact, whether or not the substance came from Turner. We find no error in the trial court’s admission into evidence of the two bags of cocaine.

¶ 13. As for the transcriptions of the audiotapes of the drug purchase, Turner’s counsel objected to their admission at trial because the defense was not provided the entire transcriptions from the beginning to the end of the tapes. At trial, however, Officer Coward testified that the transcriptions accurately reflected what was said on the tapes. The only discrepancy was that the transcriber had not transcribed some conversation between Coward and Barrett on their way to the first buy. At trial, though, the jury was played both of the tapes in their entirety, including the pre-buy conversation at issue.

¶ 14. Transcripts of audiotapes, as a guide to a tape recording, may be introduced into evidence for the same purpose that an expert witness’s testimony is introduced: as a device to help the jurors understand other types of real evidence. United States v. Onori, 535 F.2d 938, 947 (5th Cir.1976). When there is a disagreement about the accuracy of the transcript between the defense and the prosecution, “the proper procedure is for the jury to receive transcripts of both sides’ versions.” Id. at 948 (quoting United States v. Chiar-izio, 525 F.2d 289, 293 (2nd Cir.1976)).

¶ 15. Here, although Turner disagreed with the accuracy of the tapes, he did not offer into evidence his own version of the tapes for the jury to evaluate. Furthermore, we find Turner was not prejudiced by the exclusion of the pre-buy colloquy of the first transaction between the officer and the informant. The trial court did not err in admitting the transcriptions. This issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN FAILING TO SUSTAIN THE MOTION FOR DIRECTED VERDICT, MOTION FOR JNOV, OR IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL.

¶ 16. During the trial, Turner moved for a directed verdict at the close of the State’s case-in-chief, which the judge denied. After the jury returned a guilty verdict, Turner filed a motion for JNOV or, in the alternative, motion for a new trial, which was denied as well.

¶ 17. A directed verdict and a motion for JNOV challenge the sufficiency of the evidence presented to the jury. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The standard of review is the same for evaluating a directed verdict and JNOV. McClendon v. State, 852 So.2d 43, 46-47(¶ 11) (Miss.Ct.App.2002) (citing Baker v. State, 802 So.2d 77, 81(¶ 13) (Miss. 1995)). This Court is required “to reverse and render where the facts point overwhelmingly in favor of the appellant that reasonable men could not have found appellant guilty.” Id. at 47. Alternatively, this Court is required to affirm the trial court’s denial “where substantial evidence of such quality and weight exists to support the verdict and where reasonable and fair minded jurors may have found appellant guilty.” Id. The standard of review requires this Court to consider the evidence in the light most favorable to the State, giving the State “the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Id. at 47. All credible evidence supporting the defendant’s guilt should be accepted as true. McClain, 625 So.2d at 778.

¶ 18. Unlike a motion for a directed verdict or JNOV, a motion for a new trial challenges the weight of the evidence. Sheffield v. State, 749 So.2d 123, 127(¶ 16) (Miss.1999). This Court’s standard of review of a trial court’s denial of a motion for a new trial is abuse of discretion. Johnson v. State, 904 So.2d 162, 167(¶ 11) (Miss.2005) (quoting Esparaza v. State, 595 So.2d 418, 426 (Miss.1992)). A new trial will not be awarded unless “the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.” Id.

¶ 19. Turner maintains that this is a case of mistaken identity and that the weight and sufficiency of the evidence presented to the jury were inadequate to convict him. He points to the fact that the jury was not given a description of the accused by Officer Coward. Instead, Coward only identified Turner in-court as the man who sold him the drugs. Turner notes that Officer Coward could not identify the type of pants or jacket the dealer was wearing. At trial Officer Coward also admitted it was dark and he did not shine a flashlight on the dealer’s face, nor was a videotape taken by law enforcement officers of the transaction. Turner also attacked discrepancies in the weight of the cocaine as measured in the drug offense case reports as opposed to the weight of the cocaine in the Mississippi Crime Lab reports, thereby suggesting the evidence had been tampered with.

¶ 20. Yet, at trial, Officer Coward identified Turner twice as the man who sold him the drugs on the two separate occasions. The State elicited detailed testimony of the purchases from the two officers working the undercover sting . operation. Audiotapes and their transcriptions were introduced by the State of the two sales. In the audiotape of the first transaction, Turner’s first name “Jason” is called out by a third party. The State’s experts identified the substance Coward bought as cocaine base. The discrepancies in the weight of the cocaine in the reports was minimal and not relevant to Turner’s guilt or innocence under this statute, since there is no minimum quantity of cocaine specified for conviction. See Miss.Code Ann. § 41-29-139(a)(l) (Rev.2001). Based on the evidence, we find a reasonable jury could have properly rejected any inference of tampering raised by the discrepancies in the weight of the cocaine.

¶ 21. If viewed in the light most favorable to the State, the evidence presented at trial is sufficient to warrant the trial court’s denial of Turner’s motion for a directed verdict and JNOV. Regarding the motion for a new trial, allowing Turner’s conviction to stand would certainly not sanction an unconscionable injustice, when the weight of the evidence in support of the jury’s guilty verdict, which was substantial, is considered. Thus, the trial court did not err in denying Turner’s motions for directed verdict, JNOV, or a new trial.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF SIMPSON COUNTY OF CONVICTION OF TWO COUNTS OF THE SALE OF COCAINE AND SENTENCE OF TEN YEARS FOR EACH COUNT TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SIMPSON COUNTY.

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


text:
    Stephen Rashad BACON, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01057-COA.
    Court of Appeals of Mississippi.
    Feb. 27, 2007.
    Edmund J. Phillips, Jr., attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. After a jury trial, Stephen Rashad Bacon was found guilty of fleeing a law officer in a motor vehicle. The Circuit Court of Leake County sentenced Bacon to serve three years in the custody of the Mississippi Department of Corrections and to pay a fine of $1,500. Bacon appeals, arguing that the indictment omitted two essential elements of the crime charged and that the statutory subsection under which he was charged is unconstitutionally vague.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. The following facts were brought out at the trial. Former Walnut Grove Chief of Police Michael Harper testified that he was patrolling the town of Walnut Grove during the early morning hours of July 25, 2004. Chief Harper was driving a marked police cruiser equipped with sirens, a ten-strobe blue-light bar, and additional blue strobe lights on the car’s front grille and rear window. At approximately 3:30 a.m., Chief Harper was proceeding in a northerly direction on Main Street when he observed a green Mitsubishi car pull out of the Lockwood Apartment complex. The car made a "wide turn and the wheels on the right side of the car dropped off the pavement of the road. Chief Harper suspected that the car’s driver was intoxicated. Chief Harper began following the car, which proceeded north on Main Street toward the intersection of Main Street and Mississippi Highway 35. When the car reached the intersection, the car proceeded through the intersection without stopping at the stop sign and turned north on Highway 35.

¶ 4. At that point, Chief Harper suspected from the car’s wide turn and failure to stop at the stop sign that the car’s driver was intoxicated. Chief Harper attempted to initiate a traffic stop by turning on his blue lights. The car did not stop, though Chief Harper could see the flashing blue lights reflected in the car’s rear windshield. Chief Harper followed the car north on Highway 35 toward Carthage. Chief Harper turned on his siren, but still the car did not stop.

¶ 5. Chief Harper radioed dispatch that he was in pursuit. The dispatcher testified that she could hear the siren over the radio. Chief Harper relayed the car’s tag number to the dispatcher, and the dispatcher told him that the car was registered to Bacon. Chief Harper testified that the car sped up, reaching speeds over one hundred and ten miles per hour. Chief Harper stayed approximately three car lengths behind the speeding car. He testified that the car was traveling over the center line of Highway 35 and forced two other vehicles to pull off the highway to avoid being hit.

¶ 6. Chief Harper called the Carthage Police Department for backup and Officer Dustin Sanders responded. Officer Sanders positioned his patrol car, with its lights flashing, in the northbound lane of Highway 35 outside the Carthage city limits. As the speeding car approached Officer Sanders’s patrol car, it slowed and stopped. Chief Harper arrested the driver, who was identified as Bacon. Officer Sanders testified that Bacon was stopped about seven tenths of a mile south of the Carthage city limits. Chief Harper testified that there are approximately nine miles on Highway 35 between the northern limits of the town of Walnut Grove and the southern city limits of Carthage.

¶ 7. Bacon testified that, when he pulled out of the Lockwood Apartment complex, he did not make a wide right turn and did not allow the car’s right wheels to leave the roadway. Bacon stated that he remembered having stopped at the stop sign at the intersection of Main Street and Highway 35. Bacon stated that, when he stopped, he turned on an interior light, leaned over, and searched for a cigar in the back seat of his car. Bacon stated that he drove off when he noticed headlights approaching from the rear. Bacon stated that he did not see any blue lights until he had crested a hill at Twin City, a couple miles south of Carthage. At that point, he saw Officer Sanders’s blue lights ahead of him. He stopped because he thought it could be a road block. Bacon testified that he saw Chief Harper’s blue lights flashing for the first time as he slowed to a stop near Officer Sanders.

¶ 8. The jury found Bacon guilty of fleeing a law officer in a motor vehicle.

LAW AND ANALYSIS

I. THE INDICTMENT OMITS AN ESSENTIAL ELEMENT OF THE CRIME CHARGED.

¶ 9. For the first time on appeal, Bacon asserts that his indictment did not include every essential element of the crime charged. An indictment’s purpose is to furnish a defendant with reasonable notice of the charges against him so that he might prepare a defense. Spicer v. State, 921 So.2d 292, 319 (¶ 58) (Miss.2006). The indictment must provide a clear and concise statement of the crime charged and must fully notify the defendant of the nature and cause of the accusation against him. Byrom v. State, 863 So.2d 836, 865 (¶ 95) (Miss.2003). A defendant’s allegation that an indictment failed to charge the essential elements of the crime is a substantive challenge that is not waivable and may be raised for the first time on appeal. Havard v. State, 928 So.2d 771, 801 (¶ 59) (Miss.2006). “[C]hallenges to the sufficiency of an indictment will not be procedurally barred and may be raised for the first time on appeal.” Spicer, 921 So.2d at 319 (¶ 57).

¶ 10. Bacon was indicted under Mississippi Code Annotated section 97-9-72 (Rev.2006), which was enacted in 2004 and provides, in pertinent part:

(1) The driver of a motor vehicle who is given a visible or audible signal by a law enforcement officer by hand, voice, or emergency light or siren directing the driver to bring his motor vehicle to a stop when such signal is given by a law enforcement officer acting in the lawful performance of duty who has a reasonable suspicion to believe that the driver in question has committed a crime, and who willfully fails to obey such direction shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00) or imprisoned in the county jail for a term not to exceed six (6) months, or both.
(2) Any person who is guilty of violating subsection (1) of this section by operating a motor vehicle in such a manner as to indicate a reckless or willful disregard for the safety of persons or property, or who so operates a motor vehicle in a manner manifesting extreme indifference to the value of human life, shall be guilty of a felony, and upon conviction thereof, shall be punished by a fine not to exceed Five Thousand Dollars ($5,000.00), or by commitment to the custody of the Mississippi Department of Corrections for not more than five (5) years or both.

¶ 11. Bacon’s indictment specified that he was charged with the felony version of the crime under subsection 2 of the statute. The indictment stated, in pertinent part:

Stephen Rashad Bacon late of the County aforesaid, on or about the 25th day of July, in the year of our Lord, 2004, in the County and State aforesaid, and within the jurisdiction of this Court, did willfully, unlawfully and feloniously fail to obey a visible signal to stop his vehicle given by Walnut Grove policeman Michael Harper, a law enforcement officer, when said Michael Harper activated his emergency lights while in the lawful performance of his duty and having reasonable suspicion to believe that Stephen Rashad Bacon had committed a crime and then Stephen Rashad Bacon did operate his motor vehicle with a reckless disregard for the safety of persons or property, contrary to and in violation of Section 97-9-72(2), Miss. Code Ann. (1972), against the peace and dignity of the State of Mississippi.

¶ 12. Bacon contends that the indictment did not successfully charge him under subsection (2) with the felony version of the crime of fleeing an officer in a motor vehicle. Bacon avers that the felony enhancement applies to a person’s failure to obey a signal to stop “by operating a motor vehicle in such a manner as to indicate a reckless or willful disregard for the safety of persons or property.” Miss.Code Ann. § 97-9-72(2) (emphasis added). He contends that the indictment did not track the statute because it stated that Bacon failed to obey a signal to stop “and then Stephen Rashad Bacon did operate his motor vehicle with a reckless disregard for the safety of persons or property.” (emphasis added). Bacon argues that the indictment did not effectively accuse Bacon of a failure to obey a signal to stop by operating his motor vehicle in a reckless manner. Therefore, Bacon contends, he was only charged with a misdemeanor under subsection (1).

¶ 13. The indictment must allege every material fact and essential ingredient of the offense with precision and certainty. Smith v. State, 754 So.2d 1159, 1164 (¶ 15) (Miss.2000). We find that the language of Bacon’s indictment was sufficiently precise and certain to charge him with felonious fleeing of a law enforcement officer under subsection (2). Subsection (1) proscribes a person’s failure to obey a signal to stop a motor vehicle given by a law enforcement officer under specified circumstances. Subsection (2) makes it a felony to fail to obey the signal to stop by operating the motor vehicle in a manner indicating reckless disregard for the safety of others. Logically, a person’s failure to obey a signal tó stop a motor vehicle signifies that the person is continuing to operate the motor vehicle. Bacon’s indictment charged him with failing to obey a visible signal to stop his motor vehicle and then operating his motor vehicle with reckless disregard for the safety of others. Therefore, it successfully alleged that, after Bacon was signaled to stop, Bacon continued to operate his motor vehicle with reckless disregard for the safety of others. Because the failure to obey a signal to stop the vehicle implies the continuing operation of the vehicle, there is no logical difference between failing to obey by operating one’s vehicle recklessly, and failing to obey and then operating one’s motor vehicle recklessly. The indictment properly charged Bacon with the felony crime under subsection (2).

II. FAILURE OF THE INDICTMENT TO DISCLOSE AN OFFENSE UNDERLYING THE OFFENSE CHARGED RENDERS THE INDICTMENT FATALLY DEFECTIVE.

¶ 14. Bacon’s indictment stated that, when Chief Harper activated his emergency lights, he had reasonable suspicion to believe Bacon had committed a crime. Bacon argues that the indictment omitted an essential element of the crime charged because it did not identify what crime Officer Harper reasonably suspected Bacon of having committed. Bacon cites State v. Berryhill, 703 So.2d 250 (Miss.1997), for the proposition that, when a charge of one crime is predicated on another, the omission of the underlying offense is fatal to the indictment.

¶ 15. To secure a conviction for capital murder, the State must prove the defendant’s guilt of a predicate felony and that predicate felony must be identified in the indictment. Lambert v. State, 462 So.2d 308, 311 (Miss.1984). Unlike capital murder, a defendant’s guilt of fleeing a law officer in a motor vehicle is not predicated upon the defendant’s guilt of another crime. To secure a conviction for fleeing a law officer in a motor vehicle, the State must prove that the officer’s attempted traffic stop was legal; that is, that the attempted traffic stop was the product of the officer’s reasonable suspicion. Miss. Code Ann. § 97-9-72(1); see Adams v. City of Booneville, 910 So.2d 720, 722 (¶ 8) (Miss.Ct.App.2005). The State need not prove the defendant’s guilt of an underlying crime. Therefore, an underlying crime is not an essential element of fleeing a law officer in a motor vehicle. Bacon’s indictment was not fatally defective for failing to specify the offense of which Officer Harper reasonably suspected Bacon. This issue is without merit.

III. SUBSECTION 2 OF MISSISSIPPI CODE ANNOTATED SECTION 97-9-72, THE PROVISION OF LAW UNDER WHICH APPELLANT WAS CONVICTED, IS VOID FOR VAGUENESS.

¶ 16. Bacon argues that subsection (2) of section 97-9-72 is unconstitutionally vague. Specifically, Bacon contends that the language making it a felony crime to fail to obey a signal to stop “by operating a motor vehicle in such a manner as to indicate a reckless or willful disregard for the safety of persons or property” is drawn so broadly that it would include “almost any carelessness exhibited in driving” and leaves doubt as to what conduct is prohibited. The State points out that Bacon did not raise the void for vagueness issue in the lower court and, therefore, failed to preserve this argument for appeal. Fleming v. State, 604 So.2d 280, 292 (Miss.1992). “Constitutional arguments not asserted at trial are waived.” Id. As Bacon did not preserve this issue for appellate review, we do not address it.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF FLEEING A LAW OFFICER IN A MOTOR VEHICLE AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A FINE OF $1,500 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

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