author: ISHEE, J., for the Court.

text:
    Sam Henry WILLIAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01151-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2008.

      Edmund J. Phillips, Jason Avery Man-gum, Newton, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., BARNES, and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. On the night of May 21, 2005, Sam Henry Williams shot and killed Virginia Ann Kidd at Williams’s home. He was subsequently convicted of her murder. At trial, his motions for peremptory jury instructions, for a judgment notwithstanding the verdict, and for a new trial were denied. Additionally, the trial court excluded testimony concerning the potential for the weapon Williams used in the shooting to accidentally discharge under certain circumstances. Aggrieved, Williams appeals to this Court, asserting that: (1) the denials of his motions for peremptory jury instructions, for a judgment notwithstanding the verdict, and for a new trial were improper under Weathersby v. State; and (2) that the trial court erred in sustaining the State’s objections to the admission of testimony concerning the potential for the murder weapon to accidentally discharge when striking a hard object. Finding no error with respect to the first issue, we affirm the judgment of the trial court. We find that the second issue is moot.

FACTS

¶2. Williams and Kidd had been in a continuing relationship for ten or eleven years and often spent the night together at Williams’s home in Scott County, Mississippi. On the night of May 21, 2005, Williams and Kidd engaged in a heated argument at Williams’s house over his refusal to drive Kidd to Newton, Mississippi. The argument lasted several hours, during which time Williams consumed some quantity of gin and Kidd allegedly used some quantity of crack cocaine. Around 11:00 p.m., Williams went to bed, and shortly thereafter Kidd entered the bedroom with a butcher knife. Although precisely what happened in the next few moments is unclear, after an exchange with Williams during which Kidd fell to the floor, she retreated toward the bathroom. At that point, Williams withdrew a loaded .22 caliber pistol from underneath his mattress and began walking toward the bathroom. Williams claims that he tripped and fell twice while holding the pistol. During the first fall, he claims that he accidentally cocked the pistol. During the second fall, he claims that he fell into the door frame and that the gun either discharged from the force of the impact or that he accidentally pulled the trigger. What is not disputed is that the weapon discharged a single .22 caliber bullet that went straight through the left temple of Kidd’s skull, killing her.

¶ 3. Shortly after the shooting, deputies from the Scott County Sheriffs Department arrived to investigate. They found Williams and one other person sitting on the front porch of Williams’s home. When asked about the shooting, Williams admitted to it. He was arrested and taken into custody. Two days later, the deputies secured a Miranda waiver from Williams and interviewed him about the killing. During that interview, he stated that he withdrew the pistol from the mattress because he was afraid that Kidd might harm him with the butcher knife. During a subsequent interview, and after the deputies obtained another Miranda waiver, Williams cited his concern for Kidd’s safety as his reason for removing the weapon from his mattress. In both interviews, he never denied that the pistol was cocked when it discharged, or that he was holding the pistol when it discharged.

¶ 4. Williams was tried in the Circuit Court of Scott County in June of 2006 and convicted of murder. During the trial, Williams asserted that under the rule set out in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933), he was entitled to a peremptory jury instruction. After the trial court’s denial of that jury instruction and the return of a guilty verdict, Williams made motions for a judgment notwithstanding the verdict and a motion for a new trial, both based on the same Weath-ersby argument. The trial court denied both motions. Additionally, during trial the court sustained the State’s objections to testimony offered by a sheriffs deputy over the possibility of the pistol accidentally discharging after striking a hard object when the pistol was not cocked. The rulings of the trial court concerning the Weathersby issues and the evidentiary issue give rise to Williams’s appeal of his conviction for murder.

DISCUSSION

(1) The trial court’s denial of appellant’s motions for peremptory jury instructions, for a judgment notwithstanding the verdict, and for a new trial was proper.

¶ 5. Taken together, Williams’s motions for a peremptory jury instruction, a judgment notwithstanding the verdict, and a new trial can be viewed as one single challenge to the weight and sufficiency of the evidence undergirding his conviction for murder. With respect to the sufficiency of the evidence, the standard of review is well-settled. This Court “must, with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict.” Gleeton v. State, 716 So.2d 1083, 1087(¶ 14) (Miss.1998). Additionally, “credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury.” Id. This Court will reverse a trial court “only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” id.

¶ 6. Regarding the weight of the evidence, “this 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” or “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.... ” Montana v. State, 822 So.2d 954, 967-68(¶ 61) (Miss. 2002).

¶ 7. More specifically, Williams’s assignments of error with respect to the weight and sufficiency of the evidence hinge on his assertion that, as a matter of law, his account of the events leading up to the shooting of Kidd should be presumed to be correct, and that therefore he cannot be found guilty of murder. He bases this argument on the Weathersby Rule. The Weathersby Rule holds that “[i]f the defendant’s version of the killing is reasonable, it must, as a matter of law, be accepted as true, unless ‘substantially contradicted in material’ particulars by a credible witness, ... or by the physical facts or by facts of common knowledge.” Blanks v. State, 547 So.2d 29, 33 (Miss.1989). The Weathersby Rule does not apply “where the defendant’s version [of the killing] is patently unreasonable, or contradicted by physical facts.” Id. Furthermore, a defendant is precluded from seeking the protection of the Weathersby Rule when he or she “following the slaying, gives conflicting versions of how the killing took place, or initially denies the act.” Id. The defendant who meets the requirements of the Weathersby Rule is entitled to peremptory jury instructions or a directed verdict for acquittal, and an acquittal on appeal would be appropriate if relief in the lower court were to be denied.

¶ 8. Williams, however, is not entitled to the relief requested in this appeal, because the circumstances of his case do not warrant Weathersby protection. In order for the Weathersby Rule to apply, Williams’s account of the killing must not be contradicted by, among other things, his subsequent accounts of the killing. In fact, the testimony of the sheriffs deputies who interviewed Williams two different times after the killing occurred indicates that his account of the killing did change. In an interview conducted two days after the killing took place, Williams stated that he removed the gun from his mattress because he saw Kidd coming back down the hallway with the butcher knife, that he did not know what her intentions were, and that he was afraid of what she might do. In an interview conducted several weeks later, and at trial, Williams stated that he removed the pistol from the mattress for Kidd’s safety. These conflicting versions of the killing alone are enough to deny Williams the protection of the Weath-ersby Rule.

¶ 9. Williams’s conflicting statements regarding the killing, however, are not the only obstacle preventing him from gaining the protection of the Weathersby Rule. Forensic evidence concerning the trajectory of the bullet was introduced at trial that at least partially contradicted Williams’s account of the killing. That evidence was enough to deny Williams an acquittal as a matter of law, and to put the decision regarding the disputed facts in the hands of the jury.

¶ 10. Consequently, under our standard of review in this case, and having given the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence introduced at trial, we find that there is sufficient evidence so that reasonable and fair-minded jurors could have returned a verdict of guilty. As to the weight of the evidence, after accepting as true the evidence that supports the verdict, we are unable to conclude that the verdict is so contrary to the great weight of the evidence that to allow it to stand would sanction an unconscionable injustice or an abuse of discretion on the part of the trial court. Therefore, the orders denying the motions for peremptory jury instructions, for a judgment notwithstanding the verdict, and for a new trial were proper and are affirmed.

(2) The trial court’s exclusion of evidence relating to accidental discharge was proper.

¶ 11. Williams also claims that the trial court erred in excluding testimony of a sheriffs deputy concerning the potential for the pistol used in the shooting to discharge accidentally when striking a hard object. We need not reach the issue of whether the trial court erred because Williams failed to properly preserve this issue for appeal. Generally, “when a party seeks to offer evidence which in turn is excluded by the trial court, before a reviewing court will consider the matter on appeal the party must have somehow placed in the record the nature and substance of the proffered evidence for our consideration.” Granger v. State, 853 So.2d 830, 833(¶ 9) (Miss.Ct.App.2003) (citing Harris v. Buxton T.V., Inc., 460 So.2d 828, 833 (Miss.1984)). “When testimony is excluded at trial, a record must be made of the proffered testimony in order to preserve the point for appeal.” Id. (citing Thompson v. State, 602 So.2d 1185, 1188 (Miss.1992)). No proffer of the content of the excluded testimony was made at trial in this case. We have not deviated from this rule in the past, and we see no reason to do so now. Therefore, this assignment of error is without merit.

¶ 12. However, even if a proffer of the evidence had been made, the trial court’s refusal to admit the testimony regarding the potential for the weapon used in the killing to discharge accidentally when striking a hard object would not have been in error. We review questions concerning the admission or exclusion of evidence under an abuse of discretion standard. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936(¶ 7) (Miss.2002).

¶ 13. In this case, the question just before the excluded testimony sought the deputy’s opinion on the potential for the pistol to accidentally discharge when it was not cocked. In every account of the killing Williams gave, in interviews and at trial, he never denied that the pistol was cocked when it fired the fatal bullet. Therefore, any testimony concerning the propensity for pistols of that type to accidentally fire while not cocked would have been irrelevant, and the trial court would certainly not have abused its discretion in excluding that testimony. Therefore, even if Williams’s claim regarding the excluded testimony was not moot, this Court would still be compelled to affirm the judgment of the trial court with respect to the excluded testimony.

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

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


source: Caselaw Access Project

author: CHANDLER, J., for the Court.

license: Public Domain

text:
    Napolean MOORE, Appellant v. MARATHON ASSET MANAGEMENT, LLC, Appellee.
    No. 2006-CA-01405-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2008.

      Paul E. Rogers, Jackson, attorney for appellant.
    Hunter Fariss Crisler, attorney for ap-pellee.
    Before KING, C.J., CHANDLER, BARNES and ISHEE, JJ.
   CHANDLER, J., for the Court.

¶ 1. The Chancery Court of the First Judicial District of Hinds County entered an order that quieted title to a piece of disputed property in the appellee, Marathon Asset Management, LLC. The chancery court found that the chancery clerk had followed proper procedures and refused to set aside the tax sale purchase by Marathon’s predecessor in interest, Heartwood 88, Inc. Aggrieved, Napolean Moore appeals. He argues that the chancery court erred by failing to void Marathon’s deed and set aside the tax sale. Alternatively, Moore argues that if the chancery court properly quieted title in Marathon then it should have awarded him an equitable lien against the property in an amount equal to the value of the improvements he made to the property.

¶2. We find that the chancery court erred in finding that the chancery clerk had complied with the statutory requirements; therefore, we reverse the judgment of the chancery court and render judgment declaring the tax sale void.

FACTS

¶ 3. Edward Chapman failed to pay the ad valorem taxes owed on his property for the year 2000. This property is the subject of this dispute. Heartwood 88 bought the disputed property, which is located at 462 Downing Street, Jackson, Mississippi, at a tax sale on August 27, 2001. Following the tax sale, Chapman had two years to redeem the property, or the tax sale would be final and title would vest in the purchaser at the tax sale.

¶ 4. As of 180 days before the expiration of the period of redemption, Chapman was the owner of record. On May 27, 2003, the chancery clerk sent notice to Chapman via certified mail of the upcoming expiration of the redemption period, but it was returned unclaimed. Thereafter, on July 15, 2003, the sheriff also visited the property to personally deliver notice to Chapman, but he did not locate him. These were the only methods of noticing Chapman contained in the record. There was nothing to indicate that the chancery clerk attempted to discover the whereabouts of Chapman or to try to send notice again at a later date.

¶ 5. At the time the sheriff attempted to deliver notice to Chapman, the property was actually owned by Napolean Moore. At a foreclosure sale on June 13, 2003, only seventy-six days prior to the expiration of the equity of redemption, Moore paid $27,330.40 for the property that had been foreclosed on by Lasalle Bank National Association, a creditor of Chapman’s. The foreclosure sale was properly noticed in The Clarion-Ledger for four consecutive weeks. Moore testified that he invested $19,011.47 in renovating the property and then rented it to a tenant.

¶ 6. Unfortunately, prior to making the purchase at the foreclosure sale, Moore did not conduct a title search on the property. Therefore, he did not learn about the tax sale or the period of redemption set to expire on August 27, 2003. Moore never learned of the tax sale until some time in 2004. Thereafter, he recorded his deed to the property on August 31, 2004, and filed suit to quiet title to the property or to receive repayment of the amount spent improving the property.

¶ 7. The chancery court found that the chancery clerk had complied with the necessary statutory notice requirements and quieted title in Marathon. The chancery court noted that Moore was not the owner of record as of 180 days prior to the expiration of the redemption period, so he was not entitled to notice. Regarding Moore’s claim for the value of improvement to the property, the chancery court found that it could not impose an equitable lien against Marathon’s property.

STANDARD OF REVIEW

¶ 8. This Court will not reverse the decision of a chancery court unless that decision was manifestly wrong, clearly erroneous, or if the chancellor applied an incorrect legal standard. Nichols v. Fun-derburk, 883 So.2d 554, 556(¶7) (Miss. 2004). However, we will review a question of law under a de novo standard. Id.

ANALYSIS OF ISSUES

¶ 9. Moore’s argument is that the chancery court erred by finding the chancery clerk complied with the statutory notice requirements and by quieting title to the disputed property in Marathon. He claims that the clerk did not file the necessary affidavits detailing the steps she took to find the owner; therefore, the chancery court should have declared the tax sale to be void.

¶ 10. The issue presented by Moore becomes complicated in a number of ways. First, while Moore was the owner of the disputed property when the period of redemption expired, he was not the owner of record 180 days before the expiration as provided for by Mississippi Code Annotated section 27-43-1 (Rev. 2006). Even though Moore may not have been entitled to notice under section 27-43-1, the record does not reflect that the chancery clerk followed all the notice procedures required by Mississippi Code Annotated section 27-43-3 (Rev.2006). Furthermore, prior to purchasing the property at foreclosure sale, Moore did not conduct a title search that would have alerted him to the tax sale and the pending expiration of the period of redemption.

¶ 11. We must first determine whether the chancery clerk complied with the notice requirements. If she did not, the issue becomes whether Moore, even though he was not the owner of record and was owed no notice, had the right to assert that the chancery clerk failed to comply with the notice requirements of section 27-43-3.

¶ 12. We begin by looking at the notice requirements for which the chancery clerk was responsible. Section 27-43-1 provides that the chancery clerk must give notice of the pending expiration of the time for redemption to the owner of record as of 180 days prior to the expiration. The chancery clerk must give notice by certified mail, personal service via the sheriff, and publication in an appropriate newspaper. Miss.Code Ann. § 27-43-3. In applying section 27-43-3, we have recently held that the statute requires the clerk to give notice to the landowner by each of these three methods. Viking Invs., LLC v. Addison Body Shop, Inc., 931 So.2d 679, 681(¶ 5) (Miss.Ct.App.2006) (quoting DeW-eese Nelson Realty, Inc. v. Equity Servs. Co., 502 So.2d 310, 312 (Miss.1986)).

¶ 13. If notice by certified mail and personal service are ineffective, section 27-43-3 lists the following additional steps that the clerk must follow:

In the event the notice by mail is returned undelivered and the personal notice as hereinabove required to be served by the sheriff is returned not found, then the clerk shall make further search and inquiry to ascertain the reputed owner’s street and post office address. If the reputed owner’s street or post office address is ascertained after the additional search and inquiry, the clerk shall again issue notice as herein-above set out. If personal notice is again issued and it is again returned not found and if notice by mail is again returned undelivered, then the clerk shall file an affidavit to that effect and shall specify therein the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be retained as a permanent record in the office of the clerk and such action shall be noted on the tax sales record. If the clerk is still unable to ascertain the reputed owner’s street or post office address after making search and inquiry for the second time, then it shall not be necessary to issue any additional notice but the clerk shall file an affidavit specifying therein the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be retained as a permanent record in the office of the clerk and such action shall be noted on the tax sale record.

Miss.Code Ann. § 27-43-3. Failure of the owner to receive the notice will not render the title void so long as the clerk and sheriff complied with the notice requirements. Miss.Code Ann. § 27-43-3.

¶ 14. Mississippi’s long-standing public policy is to protect landowners from loss by sale of their land for taxes. Car-madelle v. Custin, 208 So.2d 51, 55 (Miss. 1968). Section 27-43-3 reflects this policy by providing that “[sjhould the clerk inadvertently fail to send notice as prescribed in this section, then such sale shall be void.... ” Under this guidance, we have held that the statutory notice require-merits of section 27-43-3 must be strictly-construed in favor of landowners. Brown v. Riley, 580 So.2d 1234, 1237 (Miss.1991); Nonuood v. Moore, 932 So.2d 63, 66 (¶¶ 7-8) (Miss.Ct.App.2006); Lawrence v. Rankin, 870 So.2d 673, 676 (¶¶ 13-14) (Miss.Ct. App.2004); Roach v. Goebel, 856 So.2d 711, 716(¶ 29) (Miss.Ct.App.2003). “Any deviation from the statutorily mandated procedure renders the sale void.” Roach, 856 So.2d at 716(¶ 29) (citing Hart v. Catoe, 390 So.2d 1001,1003 (Miss.1980)).

¶ 15. Regarding the notice requirements found in section 27-43-3, there is nothing in the record to suggest that the chancery clerk took any steps beyond mailing notice and sending the sheriff to the property to deliver notice. According to section 27-43-3, the clerk was also required to publish notice in the newspaper. Also, because the certified mail was returned unclaimed and the sheriff did not find the owner, the clerk was required to conduct additional search and inquiry and file two affidavits detailing her efforts to locate the owner. Lawrence, 870 So.2d at 676 (¶¶ 13-14); Norwood, 932 So.2d at 66(¶ 8). From the record before us, it does not appear that the clerk filed any such affidavits. There were neither any affidavits in evidence nor any notations in the tax sale record that any affidavits had been filed. Based on our recent decisions, we find that it was clearly erroneous for the chancellor to conclude that the clerk complied with all the statutory notice requirements, even though she had not filed the supporting affidavits.

¶ 16. Having determined that the chancery clerk failed to comply with the notice requirements, we now determine whether Moore was the proper party to assert that claim. As we have pointed out, under section 27-43-3, the tax sale may be valid despite the owner never receiving notice. However, the chancery clerk must have complied with the statutory requirements for the tax sale to be valid. In this case, the owner did not receive notice, and the clerk did not fully comply with the statute. Taking these facts into account, we must determine whether Moore could challenge the validity of the tax sale to Marathon when he was not the owner of record nor entitled to any notice.

¶ 17. Mississippi has very liberal standing requirements. Dunn v. Miss. State Dep’t of Health, 708 So.2d 67, 70(¶ 9) (Miss.1998). “In Mississippi, parties have standing to sue ‘when they assert a color-able interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise provided by law.’” State v. Quitman County, 807 So.2d 401, 405(¶ 11) (Miss.2001) (quoting Fordice v. Bryan, 651 So.2d 998,1003 (Miss.1995)).

¶ 18. To determine if Moore had standing to bring this claim, we must determine whether he had an interest in the disputed property. A debtor retains legal title to property until default. Anderson v. Kimbrough, 741 So.2d 1041, 1047(¶22) (Miss.Ct.App.1999). After default, the mortgagee gains title and right to possession. Id. However, the mortgagee holds title subject to the debtor’s equity of redemption. Id. After a foreclosure sale, “the debtor is divested of all legal and equitable interest in the foreclosed property.” In re Applewhite, 106 B.R. 468, 469-70 (Bankr.S.D.Miss.1989); Anderson, 741 So.2d at 1047(¶ 22). Therefore, upon foreclosure, Chapman lost title to the property, and once the property was sold he lost his only remaining interest in the property, the right to redeem it prior to sale. While Chapman was the owner of record 180 days before the expiration of the redemption period, he no longer held title to the property nor any interest in the property when the redemption period expired.

¶ 19. In the present case, Moore was the one who purchased the disputed property at the foreclosure sale. As a purchaser at a foreclosure sale, Moore stepped into the shoes of the mortgagee, LaSalle Bank. See Wirbz v. Gordon, 187 Miss. 866, 877, 184 So. 798, 802 (1938) (citing Romig v. Gillett, 187 U.S. Ill, 117, 23 S.Ct. 40, 47 L.Ed. 97 (1902)). This gave Moore an interest in the property because, upon purchasing it at foreclosure, he took title to the property.

¶ 20. Moore had a colorable interest in the disputed property, and he was also adversely affected by Marathon’s claim to the title of the property. This was sufficient to give him standing to assert his claims at trial. Furthermore, at the conclusion of the foreclosure sale, neither Chapman nor LaSalle Bank had any remaining interest in the property. Chapman no longer had any rights in the property after it was sold at foreclosure, and LaSalle transferred title to Moore following the sale.

¶ 21. While Moore was not the owner of record and was not entitled to any notice, he gained an interest in the disputed property prior to the expiration of the redemption period. We find this was sufficient to give him standing to bring his claim to challenge the validity of the tax sale. Ultimately, regardless of the fact that Moore was not the party entitled to notice, the chancery clerk did not follow the proper procedures by submitting the necessary affidavits. Based on a strict application of section 27-43-3 and our recent decisions in Lawrence and Norwood, we find that the failure to file supporting affidavits renders this tax sale void.

¶ 22. Because we reverse the chancery court’s judgment and render judgment declaring the tax sale to Heartwood and the subsequent transfer of title to Marathon void, we do not address Moore’s alternate claim of reimbursement for the costs of purchasing and improving the property.

¶ 23. THE JUDGMENT OF THE CHANCERY COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REVERSED AND JUDGMENT IS RENDERED DECLARING THE TAX SALE VOID. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: CHANDLER, J., for the Court: ROBERTS, J.,

text:
    Arthur WOODS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00417-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2008.

      James H. Arnold, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    BEFORE KING, C.J., CHANDLER AND CARLTON, JJ.
   CHANDLER, J., for the Court:

¶ 1. Arthur Woods was indicted on two counts of statutory rape. In December 2005, a Leflore County jury found Woods guilty of one count of statutory rape, and the court sentenced him to thirty years in the custody of the Mississippi Department of Corrections. He asserts the following issues on appeal:

1. The prosecution committed misconduct in having the witnesses vouch for the truthfulness of the complainants’ allegations of statutory rape.
2. The trial court erred in refusing to allow the defense to play a prior consistent statement made by Amy.
3. The trial court erred in allowing the prosecution to cross-examine Amy with her grand jury testimony where the testimony was not provided to the defendant.
4. The trial court erred in allowing the prosecution to elicit hearsay.
5. The prosecution committed misconduct when it vouched for its case in closing argument.
6. The evidence is insufficient to support the verdict or, in the alternative, the verdict is against the overwhelming weight of the evidence.
7. The errors taken together are cause for a new trial.

¶ 2. We find no error and affirm Woods’s conviction and sentence.

FACTS

¶ 3. On October 15, 2003, an eighth grade science teacher intercepted a note being passed between two female students, Amy and Katrina. The teacher was disturbed by what she read and showed the note to Amy’s mother, who worked at the school. Amy’s mother showed the note to Katrina’s father and stepmother, who promptly called the sheriff. Leflore County Sheriffs Deputy Donald Radford came to Katrina’s house and was shown the note. Deputy Radford subsequently took Woods into custody. Investigator Theodore White took a statement from Amy, but Katrina was too upset to give a statement.

¶ 4. At the trial, both Amy and Katrina testified. Each admitted to having written a portion of the note. Katrina testified that both girls had sex with Woods at his home on the night of October 10, 2003. Katrina testified that Amy spent the night at Katrina’s house that night. Katrina stated that, after her parents went to bed, the two sneaked out of the house and went to Woods’s house across the street. Woods let them in. Katrina testified that she and Amy watched television in the kitchen for about five minutes. During this time, Woods answered a knock at his door and Katrina heard him speaking with men she identified as Curtis Johnson and Willie Ray. Katrina stated she did not know if Curtis and Willie stayed at the house or departed. Katrina testified that she and Amy went to Woods’s bedroom. According to Katrina, she had sex with Woods and then Amy had sex with Woods. Katrina testified that Woods had sex with each of them twice. On the night in question, Amy was fifteen years of age and Katrina was fourteen; Woods was fifty-one years old.

¶ 5. Katrina further testified that she loved Woods and did not want anything to happen to him. On cross-examination, Woods impeached Katrina with her prior statements to Woods’s investigator denying sex with Woods. Katrina gave a sworn statement saying that she never had sex with Woods. In another statement Katrina claimed to have never had sex with anyone over age thirty. Katrina maintained she gave these statements in an attempt to avoid having to testify. However, she admitted having told Amy that her stepmother had threatened to put her out of the house if she did not testify that she had sex with Woods.

¶ 6. Shortly before trial, the State received word that Amy was going to recant her prior statement to Deputy White implicating Woods. Nonetheless, Amy testified on behalf of the State with no objection from Woods. Amy testified that she did not have sex with Woods. She stated that when she and Katrina went to Woods’s house, they were accompanied by Willie and Curtis. The State impeached Amy with the note and with her prior statement to Deputy White, relating that she and Katrina had sex with Woods in his bedroom. According to that statement, Woods had sex with Amy first and then Katrina, and he had sex with each girl twice. In the statement, Amy communicated that Woods had worn a condom during each sexual encounter with her, but in the note, Amy stated that Woods had not worn a condom during one of the encounters. Amy expressed concern in the note that she could be pregnant. When confronted with her prior statements, Amy asserted that she had been playing when she wrote the note and gave the statement to Deputy White in response to pressure from her mother to admit the sex occurred. She contended that she never had sex with Woods and that her testimony was truthful.

¶ 7. Amy’s mother testified for the defense. She testified that Katrina had said her stepmother would put her out of the house if she did not say she had sex with Woods. Amy’s mother testified that she told Katrina to tell the truth during her testimony, and Katrina responded that if she told the truth, she would have nowhere to live. Curtis Johnson testified that, in October 2003, he went to Woods’s house with Willie, Katrina, and Amy. Johnson stated that, during this visit, the girls were not out of his sight long enough to have engaged in any sexual activity with Woods. However, Johnson admitted that he did not know the date of this visit and that the girls could have been in the house during his other visits with Woods and he might not have known they were present. Woods’s girlfriend testified that she and Woods were together in the bedroom on the night of October 10, 2003, when she heard male and female voices coming from the front of the house.

¶ 8. Due to insufficient evidence, the court dismissed Count I, the statutory rape of Amy. The jury found Woods guilty of Count II, the statutory rape of Katrina.

LAW AND ANALYSIS

1. The prosecution committed misconduct in having the witnesses vouch for the truthfulness of the complainants’ allegations of statutory rape.

¶ 9. In its case-in-chief, the State on several occasions asked its witnesses to give an opinion on whether or not Katrina was being truthful when she stated that she and Amy had sex with Woods. On each occasion, the trial court sustained Woods’s objection to this testimony. For example, the prosecutor asked Katrina’s stepmother, “Can you tell when she’s lying to you or when she’s telling the truth.” Woods objected, but the stepmother answered affirmatively before Woods’s objection was sustained. Also, the stepmother indicated, upon questioning, that she believed Katrina. The court sustained Woods’s objection to that testimony as well. The prosecution asked similar questions of Katrina’s father and of Deputy Radford, but the court likewise sustained objections to these witnesses’ opinions on truthfulness. Katrina’s father did not answer the question. However, before the objection was sustained, Deputy Radford opined that Amy and Katrina were telling the truth about the sex on the night he questioned them.

¶ 10. “[Ojpinion testimony as to a witness’s truthfulness is of dubious competency.” Williams v. State, 539 So.2d 1049, 1051 (Miss.1989). Therefore, an opinion by one witness as to another’s veracity is “generally inadmissible.” Smith v. State, 925 So.2d 825, 838-39(¶ 32) (Miss.2006). Therefore, the trial court properly sustained Woods’s objections to the State’s attempt to elicit opinions on the truthfulness of Amy and Katrina’s statements from various other witnesses. Though the objections were sustained, Woods complains that the prosecution’s repeated attempts to elicit this impermissible testimony was prosecutorial misconduct that prejudiced him because the questions were designed to bolster the credibility of Amy and Katrina’s statements that they had sex with Woods.

¶ 11. “It is well settled that when the trial judge sustains an objection to testimony and he directs the jury to disregard it, prejudicial error does not result.” Pittman v. State, 928 So.2d 244, 250(¶ 12) (Miss.Ct.App.2006) (quoting Estes v. State, 533 So.2d 437, 439 (Miss.1988)). Here, the trial court sustained Woods’s objections, but the court did not contemporaneously instruct the jury to disregard the testimony, nor was such instruction requested by Woods. Instead, when the jury was impaneled, the trial court gave them a preliminary instruction that “[i]f I say it’s sustained, that means that I do agree with the objection and that would be not be presented to the jury.” The trial court also gave jury instruction 1 stating that the jury should not speculate as to the answers to any questions which the court did not require to be answered or draw any inference from the content of those questions.

¶ 12. In Strahan v. State, 729 So.2d 800, 808(¶ 32) (Miss.1998), the defendant claimed he was prejudiced by certain testimony that assumed facts not in evidence. The trial court sustained an objection to the testimony, but refused to instruct the jury to disregard it. Id. at (¶ 31). However, at the conclusion of the evidence, the trial court gave a jury instruction stating, “You are to disregard all evidence which was excluded by the Court from consideration during the course of the trial.” Id. at (¶ 34). On review, the supreme court noted that, although the judge did not instruct the jury to disregard the testimony until the close of evidence, the supreme court presumes as a matter of “institutional imperative” that jurors respect the law as they are instructed by the trial court and will follow a judge’s instructions to disregard a witness’s improper remarks. Id. at (¶¶ 35-36). Accordingly, the supreme court concluded that any prejudice caused by the testimony was cured because the objection was sustained and the jury was instructed to disregard the testimony. Id. at (¶ 37). In this case, the trial court gave a preliminary instruction stating that, when an objection is sustained, “that would not be presented to the jury,” and also instructed the jury at the close of evidence that it should not speculate as to the answer to any question the court did not allow to be answered. We presume the jury followed the trial court’s instructions and disregarded any testimony rendered after an objection to the testimony was sustained and did not speculate as to the answers to questions where the objection was sustained. This issue is without merit.

2. The trial court erred in refusing to allow the defense to play a prior consistent statement made by Amy.

¶ 13. Amy was called by the State but testified that she did not have sex with Woods. Primarily, the State’s examination consisted of impeaching Amy with the pri- or inconsistent statements which she made in the note and to parents and authorities that she did have sex with Woods. Amy maintained those statements were untrue. She said that she was “playing” when she wrote the note and that she gave the police statement in response to pressure from Deputy White. The State then brought out that Amy gave a videotaped statement to a defense investigator in January 2005 in which she denied having had sex with Woods. Amy testified that she recanted the allegations in January 2005 because she “couldn’t go on saying it happened and it didn’t.” The prosecutor insinuated that Amy gave that statement in response to pressure from the defense investigator.

¶ 14. Amy again testified on cross-examination that she had been “playing” when she wrote the note and that she was pressured into giving the police statement by her parents and the authorities. Then, Woods attempted to introduce the videotaped statement to the defense investigator. The State objected to the admission of the tape because the interview included Amy’s mother, as well as Amy, and because the tape was cumulative of Amy’s testimony. The trial court excluded the taped statement as hearsay, but Woods proceeded to ask Amy about her statements on the tape. Amy stated that, on the tape, she had truthfully denied that the sex had occurred.

¶ 15. Woods argues that the taped statement was admissible under Mississippi Rule of Evidence 801(d)(1)(B), which provides that “a statement is not hearsay if ... the declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive .... ” This Court reviews the trial court’s rulings on the admission or exclusion of evidence for abuse of discretion. Ladnier v. State, 878 So.2d 926, 933(¶ 27) (Miss.2004). An error in the admission or exclusion of evidence is not grounds for reversal unless the error affected a substantial right of a party. Id.; M.R.E. 103(a).

¶ 16. Here, Amy testified at the trial and was subject to cross-examination concerning the consistent statement. We must determine whether the statement was offered to “rebut an express or implied charge against [Amy] of recent fabrication or improper influence or motive.” M.R.E. 801(d)(1)(B). Certainly, the State charged Amy with recent fabrication of her trial testimony. The prosecution implied that, in January 2005, Amy recanted the sex allegations under the improper influence of the defense investigator. In Owens v. State, 666 So.2d 814, 817 (Miss. 1995), the supreme court, relying on Tome v. United States, 513 U.S. 150, 160, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995), held that:

“the language of [Rule 801(d)(1)(B) ], in its concentration on rebutting charges of recent fabrication, improper influence and motive to the exclusion of other forms of impeachment, as well as in its use of wording which follows the language of the common-law cases, suggests that it was intended” to include the requirement that the consistent statements must have been made prior to the arising of the alleged motive to fabricate.

A prior consistent statement may not be introduced to “refute all forms of impeachment or merely to bolster a witness’s credibility, but only to refute an alleged motive.” Owens, 666 So.2d at 816 (citing Tome, 513 U.S. at 157, 115 S.Ct. 696). Under the prosecution’s theory, Amy’s motive to lie arose in January 2005 in response to the influence of the defense investigator. The videotape of the January 2005 statement to the defense investigator did not refute this alleged motive because the statements were not made before the alleged motive arose. Rather, the videotape’s sole function was to bolster the credibility of Amy’s trial testimony. The trial court correctly excluded the taped statement as hearsay.

3. The trial court erred in allowing the prosecution to cross-examine Amy with her grand jury testimony where the testimony was not provided to the defendant.

¶ 17. On re-direct, the State attempted to impeach Amy with her prior inconsistent statements to the grand jury. Woods objected based on a discovery violation because the State had not provided the defense with Amy’s grand jury testimony. The trial court overruled the objection because grand jury testimony is not “traditionally transcribed around here.” After being informed of her Fifth Amendment right against self-incrimination, Amy testified that she told the grand jury she had sex with Woods, but this had been a lie. No more of her grand jury testimony came into evidence.

¶ 18. Woods contends that Rule 9.04(A) of the Uniform Rules of Circuit and County Court Practice required the State to provide him with Amy’s grand jury testimony and that the trial court erred by allowing the impeachment despite the discovery violation. Rule 9.04 governs discovery in criminal cases. Under Rule 9.04(A), not only must the State give to the defendant a copy of the contents of any witness statement “written, recorded or otherwise preserved,” but the State must also disclose the substance of any oral statement by a witness to be offered by the prosecution at trial. In Harris v. State, 901 So.2d 1277, 1280(¶7) (Miss.Ct. App.2004), this Court recognized that this rule applies to grand jury testimony. While prior inconsistent statements used to impeach a witness are not discoverable under Rule 9.04 absent a request for disclosure, a prior inconsistent statement that is also used to bolster the substantive case of a party is subject to reciprocal discovery. Ross v. State, 954 So.2d 968, 999(¶ 63) (Miss.2007).

¶ 19. Rule 9.04(I)(1) provides that, if the prosecution at trial attempts to introduce evidence that was not properly disclosed to the defense, and the defense objects for that reason, the trial court must grant the defense “a reasonable opportunity to interview the newly discovered witness, [and] to examine the newly produced documents, photographs, or other evidence.” After exercising the opportunity, the defense may claim unfair surprise or undue prejudice and seek a mistrial or a continuance. URCCC 9.04(I)(2). At that time, the trial court “shall, in the interest of justice or absent unusual circumstances, exclude the evidence or grant a continuance ... or grant a mistrial.” Id

¶ 20. Amy’s prior inconsistent statement to the grand jury that she had sex with Woods not only impeached her credibility, but also bolstered the State’s substantive case against Woods. Therefore, regardless of whether Amy’s grand jury testimony was transcribed, the State had an obligation under Rule 9.04(A)(1) to disclose the substance of Amy’s grand jury testimony. See Ross, 954 So.2d at 999(¶ 68). However, the purpose of the discovery rules is to prevent trial by unfair surprise or ambush. Wimberly v. State, 839 So.2d 553, 560(¶29) (Miss.Ct.App. 2002). As noted by the State, Woods knew the basics of Amy’s grand jury testimony and thus could not have been surprised by its contents. And, Amy’s grand jury testimony that she had sex with Woods was but one of many prior inconsistent statements the State used to impeach Amy. Given the purpose of the rule and the relative insignificance of the impeachment of Amy with her grand jury testimony, the error was harmless. See id at 561(¶ 34). This issue is without merit.

4. The trial court erred in allowing the prosecution to elicit hearsay.

¶ 21. Katrina testified she had sex with Woods. During the direct examination of Katrina, the State had her read from the note that started the investigation. Woods made a hearsay objection, and the trial court admitted Katrina’s statements in the note as an exception to the hearsay rule to show Katrina’s state of mind. The State also referred to the note during closing arguments. Woods argues that contents of the note were inadmissible hearsay and should have been excluded by the trial court.

¶22. The portions of the note read by Katrina contained her own statements acknowledging that the sex had occurred, as well as a relation of a subsequent conversation she had with Woods in which Woods admitted having had sex with the girls. Woods’s statements acknowledging sex with the girls were admissions by a party-opponent and were admissible pursuant to Mississippi Rule of Evidence 801(d)(2)(A). Katrina’s statements in the note were consistent with her testimony. Rule 801(d)(1)(B) provides that a statement is not hearsay if ... “[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive....” The State brought out that Katrina had recanted the sex allegations in a conversation with the defense investigator. Then, the State questioned Katrina about the contents of the note. The note contained her statements prior to the recantation that were consistent with her trial testimony and tended to rebut the notion that Katrina fabricated the allegations for trial. Therefore, her statements in the note were not hearsay and were admissible. This issue is without merit.

5. The prosecution committed misconduct when it vouched for its case in closing argument.

¶ 23. During closing arguments, the prosecution told the jury that, in most cases where the victim recants, the prosecution dismisses the case; but it did not do so in this case. Specifically, the prosecutor stated:

And it is like I said, we could have easily dismissed this case. We wouldn’t have had to fight so hard for those two girls who didn’t want to be here to start with. A lot of times when people change their stories, or when somebody goes and gets a whole brand new statement from somebody and they recant their story and say, oh, this didn’t happen, a lot of times the State of Mississippi say, okay, then we going to dismiss it. But it’s because of the circumstances of how and where those statements were taken and the victims recanted their stories that the State of Mississippi in this case says, no; we are not going to roll over like this and let this 51-year-old man get away with having sexual intercourse with no 14-year-old regardless of what she wanted. It would have been so easy to write this little motion. “Judge, we hereby move, the State of Mississippi to dismiss the case against Arthur Woods,” and we need your signature, and we could have all gone home. What he did was wrong. It’s not only wrong; it’s a violation of the law.

Woods contends the prosecution improperly vouched for the merits of its case.

¶ 24. The statements of which Woods complains did bolster the veracity of the girls’ allegations by implying that the State would not have pursued the case but for the circumstances under which the initial allegations were made, i.e., in the note passed between the girls, and the circumstances under which they were recanted, i.e., in the girls’ statements to the defense investigator. There was, however, no objection raised to the statements during closing arguments. As Woods did not contemporaneously object, this issue is procedurally barred. Rubenstein v. State, 941 So.2d 735, 779 (¶ 190) (Miss.2006). We observe that the supreme court has declined to view bolstering statements by the prosecution during closing arguments as plain error requiring reversal. Id. (citing United States v. Young, 470 U.S. 1, 20, 105 5.Ct. 1038, 84 L.Ed.2d 1 (1985)).

6. The evidence is insufficient to support the verdict or, in the alternative, the verdict is against the overwhelming weight of the evidence.

¶ 25. Woods argues that the trial court erred by denying his motion for a JNOV or a new trial. A motion for a JNOV attacks the sufficiency of the evidence. On review of the denial of a JNOV, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). We view the evidence in the light most favorable to the State, and will affirm if any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. “Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury.” Harveston v. State, 493 So.2d 365, 370 (Miss.1986).

¶ 26. The elements of statutory rape are met when a person seventeen years of age or older has sexual intercourse with a child over the age of fourteen but under the age of sixteen, if the child is thirty-six or more months younger than the person and is not the person’s spouse. Miss.Code Ann. § 97-3-65(l)(a)(i)-(iii) (Supp.2007). The totally uncorroborated testimony of a sex crime victim is sufficient to support a guilty verdict where it is consistent with the circumstances and is not discredited or contradicted by other credible evidence. Green v. State, 887 So.2d 840, 845(¶ 13) (Miss.Ct. App.2004). A sex crime victim’s testimony is corroborated by the victim’s physical and mental condition after the alleged incident and by the victim’s immediate reporting of the incident. Vaughn v. State, 759 So.2d 1092,1098(¶ 18) (Miss.1999).

¶ 27. Woods argues that Katrina’s testimony that she had sex with him was uncorroborated, was cast into doubt by her prior recantation, and for those reasons was insufficient to support his conviction of statutory rape. He avers that Katrina’s statement that her stepmother would make her leave home if she did not testify against Woods further showed that her credibility was compromised. Viewing the evidence in the light most favorable to the verdict, we find that the evidence was sufficient to enable a reasonable jury to find Woods guilty of statutory rape. Katrina gave detailed testimony about her sexual encounter with Woods. It was undisputed that Katrina was present at Woods’s home at the time the statutory rape was to have occurred. Though Katrina did not immediately report the incident to the authorities, she did discuss it with Amy in a note written five days after the incident. And, Katrina’s denial of the allegations to the defense investigator and statements about her stepmother’s threats did not so thoroughly discredit or contradict her testimony that a reasonable jury could not have concluded that she had sex with Woods.

¶ 28. A motion for a new trial challenges the weight of the evidence. 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 determine whether the evidence so heavily preponderated against the verdict that an unconscionable injustice would result from the denial of a new trial. Bush, 895 So.2d at 844(¶ 18). The power to grant a new trial should be exercised only in exceptional cases. Id. Considering the evidence referenced in our discussion of the sufficiency of the evidence, the evidence did not preponderate so heavily against the verdict that an unconscionable injustice would result without a new trial. These issues are without merit.

7. The errors taken together are cause for a new trial.

¶ 29. Woods argues that this Court should find that the individual errors that occurred in this case, when considered cumulatively, amount to reversible error. It is within this Court’s discretion to determine whether errors, found to be harmless in themselves, “when considered cumulatively require reversal because of the resulting cumulative prejudicial effect.” Glasper v. State, 914 So.2d 708, 729(¶46) (Miss.2005) (quoting Byrom v. State, 863 So.2d 836, 847(¶ 13) (Miss.2003)). The application of the cumulative error analysis necessitates our finding that multiple errors occurred in the proceedings below. Id. The only error that occurred in Woods’s trial was the trial court’s failure to recognize and address the State’s discovery violation, an error which we have found to be harmless. There are no other errors which we could evaluate in aggregation with this single error for resulting cumulative prejudicial effect. Therefore, this issue is without merit.

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

KING, C.J., MYERS, P.J., IRVING, BARNES AND CARLTON, JJ., CONCUR. ROBERTS, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, P.J., GRIFFIS AND ISHEE, JJ.

ROBERTS, J.,

Dissenting:

¶ 31. Based on my careful review of the record in this case, I find that the totally uncorroborated testimony of the sex crime victim, Katrina, has in fact been discredited, impeached, and contradicted by other credible evidence. Therefore, I am compelled to dissent. Our precedent teaches us that in such a case we are required to reverse. Mabus v. State, 809 So.2d 728, 732(¶ 19) (Miss.Ct.App.2001). See also Upton v. State, 192 Miss. 339, 341, 6 So.2d 129, 129 (1942) (reversed and remanded for a new trial based on the victim’s discredited testimony); Johnson v. State, 213 Miss. 808, 813, 58 So.2d 6, 8 (1952). Accordingly, I would reverse and remand the case for a new trial.

¶ 32. Our standard of review of a denial of a motion for new trial has recently been stated as such:

[w]hen reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. We have stated that on a motion for new trial, the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Jones v. State, 962 So.2d 1263, 1277(¶ 54) (Miss.2007) (quoting Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005)) (internal citations omitted).

¶ 33. The pertinent facts of the case will be briefly addressed for emphasis. On the night of October 10, 2003, Amy was spending the night at Katrina’s house. Amy was fifteen years old at the time, and Katrina was fourteen years old. The two girls surreptitiously exited Katrina’s bedroom after her parents had gone to sleep. They went across the street to Woods’s residence apparently to engage in sex.

¶ 34. Katrina testified at trial that she and Amy went to Woods’s house the night of October 10, and each of them had sex with Woods twice. This was the only direct evidence the jury could have considered in their finding of guilt, and Katrina was impeached by her own out-of-court statements. Prior to trial, she signed a sworn statement claiming that neither she nor Amy had ever had sexual relations with Woods. Additionally, in November 2004 she gave a taped statement to defense counsel’s investigator in which she stated Woods never touched her and she had never had sex with anyone over the age of thirty. On October 10, 2003, Woods was fifty-one years old. Lastly, although she and her step-mother denied it on the stand, Amy’s mother testified that Katrina asked if she could stay with Amy because her step-mother told her if she did not say she had sex with Woods she was going to kick her out of the house. Amy’s mother told Katrina to tell the truth, and Katrina responded that if she told the truth she would have nowhere to live.

¶ 35. Standing in direct contradiction to Katrina’s version of events was the testimony of Amy, an alleged participant who testified that Woods did not have sex with the two girls. As with Katrina, Amy’s veracity was also called in question as she initially gave a statement to the police indicating that the two girls did have sex with Woods. However, as to the motive for this statement, Amy stated that her mother repeatedly claimed that she was going to “whup” Amy if she did not say she had sex with Woods. Similarly, Amy’s mother testified that she asked Amy several times if she had sex with Woods, and Amy consistently responded in the negative. However, she testified that at some point Amy responded, “if I tell you this happened you will leave me alone?” Her statement to the police soon followed.

¶ 36. Amy also testified that, while she and Katrina did not have sex with Woods, they did visit his home at approximately 10:00 p.m. on the night of October 10, 2003. She further specified that individuals identified as Willie Ray and Curtis Johnson accompanied the pair to Woods’s home. She stated that they all watched television and then left. Johnson also testified and corroborated Amy’s version of events, although he could not be certain of the actual date of the visit.

¶ 37. Additionally, Woods’s long-time girlfriend testified that she was at Woods’s house the night of October 10, 2003. She also stated that, at around 10:00 or 11:00 p.m. on October 10, she was in Woods’s bedroom when she heard male and female voices coming from the front of the house; but she never saw who it was. She testified that no one else, other than her and Woods, were in the bedroom.

¶ 38. In my humble opinion, based on the facts of the case before us and the evidence against Woods, allowing the verdict to stand would be tantamount to sanctioning an unconscionable injustice. Neither the note confiscated from Katrina and Amy nor Amy’s initial statement, admitting the statutory rape, were admitted into evidence. Therefore, neither could be considered by the jury as substantive evidence on Woods’s guilt, but only considered as impeachment evidence of a prior inconsistent statement. We are then left with the completely uncorroborated testimony of Katrina that she and Amy had sex with Woods the night of October 10, 2003. Contradicting this testimony are Katrina’s own prior statements that include her sworn statement disclaiming the rape occurred, a taped statement indicating she had never had sexual relations with anyone over thirty years old, and her plea to Amy’s mother for a roof over her head if she told the truth in court. Further contradicting evidence include: (1) Amy’s in-court testimony that the statutory rape never happened, (2) the testimony of Woods’s girlfriend that she was in his bedroom the night of October 10, 2003, and, (3) Johnson’s testimony that he accompanied the girls to Woods’s house, even though he was unsure of the date.

¶ 39. I am acutely aware of the solemn duty of members of a jury to hear the evidence before them and make a determination of guilt or innocence based upon the law of this State and their belief in what the truth is. However, it is my opinion, as the “thirteenth juror,” that the jury in this case simply came to the wrong conclusion based upon the evidence before it. The trial judge sentenced Woods to the maximum sentence of thirty years for statutory rape, a crime for which Woods is not eligible for parole, early release, or earned time. See Miss.Code Ann. §§ 47-5-139(l)(d), 47-7-3(l)(b) (Rev.2004). It is my considered opinion that the weight of the evidence against Woods simply does not support the verdict reached by the jury. Therefore, I find that the trial judge abused his discretion in denying Woods’s motion for a new trial. Accordingly, I must respectfully dissent as I would reverse the judgment of the trial court and remand this case to the trial court for a new trial.

LEE, P.J., GRIFFIS AND ISHEE, JJ., JOIN THIS OPINION.

      . The names of the minor children have been changed to protect their identities in this- sex crime appeal.

      . It appears likely that the State called Amy for the primary purpose of impeaching her with her prior inconsistent statements in order to avoid the hearsay rule. See Flowers v. Slate, 773 So.2d 309, 326(¶ 58) (Miss.2000). Presumably, Woods’s decision not to object to Amy’s testimony on this ground was a strategic one, as Amy’s recantation of the allegations both favored the defense and cast doubt upon the truthfulness of both girls' allegations against Woods. The court did give a limiting instruction restricting the jury from considering the prior inconsistent statements as substantive evidence of guilt. The court’s dismissal of the statutory rape charge involving Amy obviates the need for further discussion of this issue.

      . In an effort to maintain uniformity the same pseudonyms have been used in place of the minors’ names.

      . The testimony at trial provided that Amy turned sixteen two months later on December 22nd and Katrina turned fifteen on December 18th.


author: GRIFFIS, J., for the Court.

text:
    Kenneth D. BLAKENEY, Rose C. Blakeney and Issaquena and Warren Counties Land Company, LLC, Appellants v. WARREN COUNTY, Mississippi, Appellee.
    No. 2006-CA-01889-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2008.
    Mark D. Herbert, Lisa Anderson Rep-peto, Jackson, attorneys for appellants.
    Paul Evans Winfield, attorney for appel-lee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Warren County filed a complaint for temporary and permanent injunctive relief to allow its surveyor to enter lands owned by the Blakeneys in order to determine whether the Blakeneys were in violation of the county flood plain ordinance. The injunction was granted by the circuit court. The Blakeneys now appeal that decision and argue that the circuit court erred by (1) denying their motion to dismiss, (2) denying their motion for a continuance, and (3) denying their motion for a directed verdict and granting the injunction. We find that the circuit court did not have personal jurisdiction over the Blakeneys. Accordingly, we reverse and render.

FACTS

¶ 2. Warren County initiated this proceeding by requesting that the circuit court grant an injunction to allow the county to enter land owned by the Blake-neys. The county claimed that it wanted to enter the land to determine whether the Blakeneys were violating the county flood plain ordinance. However, we must note that this is not the only current proceeding involving these same parties.

¶ 3. On August 1, 2005, the Blakeneys filed a chancery court action against the county involving a dispute over the ownership of a road. According to the Blake-neys’s brief, the Blakeneys are members of Issaquena and Warren Counties Land Co., LLC (“IWCLC”), an organization that purchased land to be used for hunting and Ashing. After the purchase, Paw Paw Island Land Company, whose members used the road to access their boat launch to Paw Paw Island, brought suit against IWCLC seeking a prescriptive easement over the road. The county became involved in the dispute when it sent a letter to IWCLC requesting that the gates be removed from the disputed road. That case is currently pending in the Chancery Court of Warren County.

¶ 4. The county filed the present action on September 25, 2006, seeking an injunction that would allow its surveyor to inspect the land owned by the Blakeneys to determine whether they are violating the county’s flood plain ordinance. The county sought the injunction after the Blakeneys refused to allow the surveyor onto the property.

¶ 5. The county’s surveyor claimed that, while gathering information during the discovery phase of the chancery court action, he realized that the Blakeneys had violated the county’s subdivision ordinance. He also observed possible violations of the flood plain ordinance. After reporting this information to county officials, the survey- or was instructed to inspect the property for violations of the flood plain ordinance. Such an inspection required the surveyor to enter the land and measure the distance between sea level and the base of any structures that had been built on the property.

¶ 6. The surveyor’s employees first went to the property to gather preliminary information on September 12, 2006. They attempted to enter the property on September 13, 2006, and were asked to leave by Mrs. Blakeney. The surveyor provided Mrs. Blakeney with a copy of Senate Bill No. 2071 entitled, “An Act to Provide Land Surveyors with Immunity from Criminal Trespass when Entering in or upon Public or Private Lands or Waters in the performance of Surveying Duties,” to put her on notice of the purpose of his inspection of the property. Even so, Mrs. Blakeney insisted that he was trespassing and asked him to leave.

¶ 7. The Blakeneys then contacted their attorney who assumed that the county was trying to obtain additional discovery in the chancery court matter. The Blakeneys’s attorney sent a letter to the county’s attorney advising that the allowed period of discovery under the rules had passed because the trial was set to resume in twelve days. In response to this letter, the county attorney stated that the inspection was related to criminal violations on the property that were separate from the civil litigation before the chancery court.

¶ 8. On September 14, 2006, the survey- or attempted to inspect the property again. Mr. Blakeney stopped him on the road to the property and told him to leave. The surveyor called the sheriffs office who refused to get involved unless the surveyor had a court order. The surveyor made a final attempt to inspect the property on September 15, 2006. That day, he was met by the Blakeneys’s attorney who informed the surveyor that the Blakeneys did not consent to him entering their property and any inspection would be a violation of the Blakeneys’s Fourth Amendment rights.

¶ 9. Thereafter, the county filed this action to obtain an injunction to allow the surveyor to conduct the inspection. The action was filed on September 25, 2006, and the hearing was set exactly one week later. The Blakeneys claim that they were never served the complaint and did not receive notice of the hearing until Thursday, September 28, 2006, before the hearing set for Monday, October 2, 2006. On the Friday before the hearing, the Blake-neys were denied access to public records maintained by the county. County officials suggested they submit a request for records, and the county had fourteen days to respond the request. Thus, the Blake-neys were unable to obtain the records before the hearing.

¶ 10. The Blakeneys filed a motion to dismiss, a motion for a continuance, and a motion for directed verdict that were all denied by the trial court. After the hearing, the court granted the injunction to allow the county’s surveyor to enter the land. We now consider the Blakeneys’s appeal from the issuance of that injunction.

ANALYSIS

Whether the circuit court erred in denying the Blakeneys’s motion to dismiss.

¶ 11. The Blakeneys argue that their motion to dismiss should have been granted because they were never served process and because the county’s complaint failed to state a cause of action. We review the denial of a motion to dismiss under a de novo standard of review. Harris v. Miss. Valley State Univ., 873 So.2d 970, 988(¶ 54) (Miss.2004).

Service of Process

¶ 12. The Blakeneys contend that they were never served with process. Thus, they argue that the circuit court did not obtain personal jurisdiction over them as defendants and did not have the power to grant the injunction. The record reflects that summons was issued; however, the court file contained no return of service. The Blakeneys claim that they were never served and only received notice of the hearing on Thursday, September 28, 2006, when the court clerk sent their attorney an e-mail announcing that the hearing would be held the following Monday, October 2, 2006.

¶ 13. In order for a judgment of a court to be valid, the court must have personal jurisdiction over the parties to the action. James v. McMullen, 733 So.2d 358, 359(¶ 3) (Miss.Ct.App.1999) (quoting Rice v. McMullen, 207 Miss. 706, 727, 43 So.2d 195, 201 (1949)). “The existence of personal jurisdiction, in turn, depends upon the presence of reasonable notice to the defendant that an action has been brought.” Noble v. Noble, 502 So.2d 317, 320 (Miss.1987) (quoting Kulko v. California Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978)). However, our supreme court has held that “absent some proof of defendant’s receipt of summons, the reasonableness of notice is questionable.” Id. Further, “even actual knowledge of a suit does not excuse proper service of process.” Mansour v. Charmax Indus., 680 So.2d 852, 855 (Miss.1996) (citing Brown v. Riley, 580 So.2d 1234, 1237 (Miss.1991)).

¶ 14. At the hearing on October 2, 2006, the Blakeneys immediately notified the circuit court that they had not been served with process in this matter. It was the county’s burden to show that the Blakeneys had been served with process. Montgomery v. SmithKline Beecham Corp., 910 So.2d 541, 547(¶24) (Miss.2005). However, the county made no attempt to do so. Regardless, the circuit court denied the Blakeneys’s motion to dismiss and proceeded to hear the merits of the case. Because the Blakeneys were not properly served, we find that the circuit court did not have personal jurisdiction over the defendants. Thus, the injunction was improperly granted.

¶ 15. We note that the county makes reference to this matter as a criminal investigation, yet it argues that no search warrant is required to allow the surveyor to enter the Blakeneys’s property. However, the law dictates that, “[a]b-sent consent or some recognized exception or exigency for which a warrant is not required, warrantless entries are illegal.” Rose v. State, 586 So.2d 746, 752 (Miss. 1991) (citing Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978)). If the county is, as it claims, conducting a criminal investigation on the Blakeneys’s property, the county is required to obtain a search warrant supported by probable cause. See Miss. Const, art. 3, § 23; Tyler, 436 U.S. at 499, 98 S.Ct. 1942.

¶ 16. Because the circuit court lacked personal jurisdiction to enter a judgment against the Blakeneys, it is unnecessary that we consider the other assignments of error. We reverse and render, finding that the Circuit Court of Warren County lacked jurisdiction to grant injunctive relief.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE OPINION.


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

text:
    Kenneth Dewayne DAVIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-00544-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2008.

      Kenneth Dewayne Davis, Appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, P.J., CHANDLER and BARNES, JJ.
   LEE, P.J., for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On November 7, 2005, in the Copiah County Circuit Court, Kenneth Davis pleaded guilty to one count of sale of a controlled substance. Davis also pleaded guilty to conspiracy to commit capital murder. On the controlled substance charge, Davis was sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections. On the conspiracy charge, Davis was sentenced to serve twenty years in the custody of the MDOC. The trial court ordered both sentences to run consecutively.

¶ 2. On February 15, 2007, Davis filed a motion for post-conviction relief. The trial court denied Davis’s motion for relief on March 15, 2007. Davis now appeals, asserting the following issues: (1) he received ineffective assistance of counsel, (2) his guilty plea was not entered into voluntarily or intelligently, (3) the trial court failed to conduct a proper hearing, and (4) the trial court should have granted an expansion of the record and an evidentiary hearing. Finding no merit to Davis’s issues, we affirm.

STANDARD OF REVIEW

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

DISCUSSION

I. WAS DAVIS’S COUNSEL INEFFECTIVE?

¶4. In his first issue on appeal, Davis argues that he received ineffective assistance of counsel. To prevail on this issue Davis must demonstrate that his trial counsel’s performance was deficient and the deficient performance prejudiced his defense. Strickland, v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of a guilty plea, Davis must demonstrate that his counsel’s performance fell below the range of competence demanded of attorneys in criminal cases and that but for the attorney’s substandard performance, he would have insisted on going to trial. See Alexander v. State, 605 So.2d 1170, 1173 (Miss.1992).

¶ 5. Davis claims that his trial counsel conspired with the prosecution to force him to plead guilty to the sale of a controlled substance charge. However, Davis fails to support these allegations and uses this issue to reassert his innocence on this particular charge. Furthermore, during the plea colloquy, Davis stated that he was satisfied with the advice of his attorney. This issue is without merit.

II. WAS DAVIS’S GUILTY PLEA ENTERED INTO VOLUNTARILY?

¶ 6. In his second issue on appeal, Davis argues that his guilty plea was not entered into voluntarily or intelligently. Davis claims that he was coerced into pleading guilty and telling the trial court that he had not been threatened in any way. A plea is considered “voluntary and intelligent” if the defendant knows the elements of the charge against him, understands the charge’s relation to him, what effect the plea will have, and what sentence the plea may bring. Alexander, 605 So.2d at 1172. Furthermore, solemn declarations in court carry a strong presumption of verity. Gable v. State, 748 So.2d 703, 706(¶ 11) (Miss.1999).

¶ 7. During the plea colloquy, Davis was informed of the charges against him, the effect of the plea, what rights he would waive if he pleaded guilty, and the possible sentence he could receive. Davis indicated that he understood everything that was explained. Davis admitted to committing both crimes to which he pleaded guilty. Davis stated that he was satisfied with his attorney, and he entered into the guilty plea of his own free will. To survive summary dismissal, a collateral attack on a facially correct plea must include supporting affidavits of other persons. Baker v. State, 358 So.2d 401, 403 (Miss.1978). Davis has not done so; thus, we find this issue to be without merit.

III.DID THE TRIAL COURT FAIL TO CONDUCT A PROPER HEARING?

¶ 8. In his third issue on appeal, Davis argues that the trial court failed to conduct a proper hearing pursuant to Rule 8.04(A)(3) of the Uniform Rules of Circuit and County Court Practice. Rule 8.04(A)(3) states the following:

Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.

¶ 9. Davis’s main assertion is that there was no factual basis for the plea. Although Davis does not specify which charge, we will discuss both. The factual basis requirement is met when the record “eontain[s] ‘enough that the court may say with confidence the prosecution could prove the accused guilty of the crime charged.’ ” Jones v. State, 936 So.2d 993, 999(¶ 21) (Miss.Ct.App.2006) (quoting Cor-ley v. State, 585 So.2d 765, 767 (Miss. 1991)). An adequate factual basis for the plea may be formed by any record evidence before the court, including the defendant’s admission of guilt. Corley, 585 So.2d at 767.

¶ 10. Here, the State was prepared to show that Davis had conspired with numerous individuals to murder Corey Johnson. The State had evidence to show that Davis had exchanged money with someone to murder Johnson. Davis admitted these facts. In regards to the other charge, the State was prepared to offer the testimony of James Reagan, an agent for the Mississippi Bureau of Narcotics, who would testify that Davis sold him over one ounce but less than one kilogram of marijuana. The State was also prepared to call other witnesses involved in the drug buy. Davis admitted these facts as well. We find no merit to this issue.

IV. DID THE TRIAL COURT ERR IN FAILING TO EXPAND THE RECORD AND GRANT AN EVI-DENTIARY HEARING?

¶ 11. In his final issue on appeal, Davis argues that his post-conviction motion raised facts which required the trial court to grant an expansion of the record and conduct an evidentiary hearing. Davis contends that because he raised questions regarding his attorney’s effectiveness and the validity of his guilty plea, he was entitled to an evidentiary hearing.

¶ 12. “[A] post-conviction collateral relief petition which meets basic pleading requirements is sufficient to mandate an evidentiary hearing unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Turner v. State, 590 So.2d 871, 874 (Miss.1991) (emphasis added). Davis has not presented any facts which would entitle him to relief; therefore, the trial court did not err by not conducting an evidentiary hearing. This issue is without merit.

¶ 13. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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


text:
    Joel David ANDERSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-00223-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2008.

      Leslie S. Lee, Jackson, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J., for the Court.

¶ 1. Following a jury trial in Webster County Circuit Court, the appellant, Joel David Anderson, was convicted of possession of precursor chemicals and sentenced to thirty years, with five years suspended and five years of supervised probation. On appeal, Anderson argues that the trial court erred in denying his motions for a directed verdict, for a judgment notwithstanding the verdict, and for a new trial.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On July 15, 2005, Officer Mike Per-rigan, a probation and parole officer for the Mississippi Department of Corrections, received a report that Ken Smith was in possession of a gun in violation of his probation. Officers went to Smith’s residence in Webster County, Mississippi, to investigate, but Smith was not there. Smith’s girlfriend, Carol Cooksey, told the officers that Smith was at his shop working on a tractor. Cooksey allowed the officers into the residence, where they noticed marijuana and paraphernalia for using methamphetamine. Cooksey informed the officers that there were more illegal drugs in the house and showed the drugs to the officers.

¶ 4. With the information of Smith’s whereabouts, the officers from the Webster County Sheriffs Department, along with Officer Perrigan and Mike Perkins, an agent with the Bureau of Narcotics, went to Smith’s shop. Upon their arrival, they discovered that the only vehicle at the shop belonged to Smith. Officers knocked on the doors to the shop for approximately five to ten minutes before the sheriff used the PA system on his truck to announce their presence. It then took at least another five minutes for Smith and Anderson to eventually exit the shop. The officers asked Smith if he had a gun, and he told them he had several inside the shop.

¶ 5. Officer Perrigan entered the shop and found several of the guns in plain view, including a loaded shotgun a foot or two inside the door. Perrigan noticed a strong chemical smell, which based on his past experience investigating methamphetamine labs, he associated with the manufacture of methamphetamine. In addition to the smell, the officers also saw tubes running from under a quilt or blanket. After removing the blanket, the officers discovered that it had been covering parts of a methamphetamine lab. The officers found the following items used to manufacture methamphetamine: burned aluminum foil, a can of starting fluid, a five-gallon bucket containing peeled lithium batteries, Ephedrine pills soaking in liquid in a Mason jar, PVC pipe, hoses, ammonia nitrate, a Heet gas line treatment containing methanol, and Red Devil lye. According to Wes Stapp, an agent with the Bureau of Narcotics, Smith and Anderson had everything necessary to manufacture methamphetamine. Agent Stapp also stated that there was a monitor set up in the shop that connected to security cameras outside. Smith and Anderson were subsequently arrested and indicted for unlawful possession of precursor chemicals.

¶ 6. Smith testified at trial that Anderson taught him how to cook methamphetamine and that Anderson was at the shop to cook methamphetamine with him. Smith also testified that all the precursor materials discovered at the shop did not belong to him. In exchange for his testimony, Smith hoped to receive favorable treatment from the district attorney regarding the charges pending against him. At the time of his arrest, Smith was on probation for his conviction of false pretenses.

STANDARD OF REVIEW

¶ 7. An appellate court will reverse a trial court’s denial of a motion for new trial when it amounts to an abuse of discretion, and it is not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Ivy v. State, 949 So.2d 748, 753(¶ 21) (Miss.2007). The denial of a motion for directed verdict or a motion for a judgment notwithstanding the verdict is reviewed de novo. White v. Stewman, 932 So.2d 27, 32(¶ 10) (Miss.2006).

ANALYSIS OF ISSUES

¶ 8. Anderson’s argument on appeal is based on the fact that none of the drugs or precursor chemicals were actually found on him. The methamphetamine lab in the shop was covered by a quilt or blanket. Combined with the fact that the officers previously found drugs at Smith’s residence, Anderson contends that the evidence points only to Smith, not to him.

¶ 9. In reviewing a trial court’s denial of a motion for a directed verdict or a judgment notwithstanding the verdict, we must look at the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843(¶15) (Miss.2005). We will ask 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; and where the evidence fails to meet this test[,] it is insufficient to support a conviction.” Id. at 843(¶ 16) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Taking the evidence in the light most favorable to the verdict, we must consider whether a rational trier of fact could have found all the elements of the crime beyond a reasonable doubt. Bush, 895 So.2d at 844(¶ 16) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Edüd 560 (1979)).

¶ 10. A motion for a new trial is based on the weight of the evidence and will be disturbed only when the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18). When reviewing a denial of a motion for a new trial, we take the evidence in a light most favorable to the verdict. Id. Such a motion is within the discretion of the court, “which should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)).

¶ 11. The statute prohibiting the unlawful possession of precursor chemicals is found at Mississippi Code Annotated section 41 — 29—313(1) (a) (ii) (Rev.2005). Section 41-29-313(a)(ii) provides:

(l)(a) [I]t is unlawful for any person to knowingly or intentionally:
(ii) Purchase, possess, transfer, manufacture, attempt to manufacture or distribute any two (2) or more of the listed precursor chemicals or drugs in any amount, knowing, or under circumstances where one reasonably should know, that the listed precursor chemical or drug will be used to unlawfully manufacture a controlled substance.

The State is required to prove each element of the indicted offense beyond a reasonable doubt. Hobson v. State, 730 So.2d 20, 28(¶ 29) (Miss.1998).

¶ 12. In reviewing the evidence, this Court will accept as true the evidence that supports the verdict and will reverse only when convinced that the circuit court abused its discretion in failing to grant a new trial. Dudley v. State, 719 So.2d 180, 182(¶8) (Miss.1998); Smith v. State, 868 So.2d 1048, 1050(¶ 11) (Miss.Ct.App.2004). It is the responsibility of the jury to weigh and consider the conflicting evidence and evaluate the credibility of witnesses and determine which testimony is to be believed. Williams v. State, 427 So.2d 100, 104 (Miss.1983).

¶ 13. The indictment charged that Anderson “did unlawfully, feloniously and knowingly or intentionally purchase, possess, transfer or distribute any two or more of the listed precursor chemicals or drugs ... to wit: Ethanol, Methanol, Ephedrine/Pseudoephedrine, Ammonium Nitrate, Sodium Hydroxide, hexanes, heptane, toluene, and Lithium.... ”

¶ 14. In this case, the jury had before it Smith’s testimony that Anderson was an active participant in the making of methamphetamine. Smith also testified that all the materials did not belong to him. The State presented the precursor chemicals they recovered, and the officers testified that Anderson was in the shop with the precursors. There was also a very strong chemical smell that indicated that Smith and Anderson were manufacturing methamphetamine, and there was a security camera linked to a monitor in the shop.

¶ 15. Anderson rested without putting on any evidence; therefore, the jury had before it only the evidence from Smith that Anderson was an active participant in the methamphetamine lab. Because Anderson did not testify or put on any evidence, there was no contradictory evidence presented.

¶ 16. From the evidence presented at trial, the jury could have found all the necessary elements of the crime beyond a reasonable doubt. Therefore, we do not find the verdict to be overwhelmingly against the weight of the evidence. We find that the trial court properly denied the post-trial motions and affirm the court’s judgment of conviction and sentence.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF WEBSTER COUNTY OF CONVICTION OF UNLAWFUL POSSESSION OF PRECURSOR CHEMICALS AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED AND FIVE YEARS PROBATION AND FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WEBSTER COUNTY.

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


text:
    Julius Alceno HOLMES, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-00385-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2008.
    Julius Alceno Holmes, Jr., appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, P.J., CHANDLER, and ROBERTS, JJ.
   CHANDLER, J., for the Court.

¶ 1. The appellant, Julius Alceno Holmes, Jr., pleaded guilty to the statutory rape of a thirteen-year-old girl, on or about April 2004. He entered his guilty plea in the Warren County Circuit Court, and he was sentenced to serve twenty years in the Mississippi Department of Corrections. He subsequently filed a motion for post-conviction relief seeking the circuit court to lessen his twenty-year sentence. The circuit court dismissed the motion pursuant to section 99-39-11 of the Mississippi Code Annotated (Rev.2007), finding that it was plain from the face of the motion that Holmes was not entitled to relief. Aggrieved, Holmes appeals and argues that the circuit court erred in failing to reduce his sentence to a level that is representative of the rehabilitative goals of the justice system.

¶ 2. Under Mississippi Code Annotated section 97 — 3—65(l)(b) (Rev.2006), it is a crime for a person to have sexual intercourse with a child who (1) is under the age of fourteen, (2) is at least twenty-four months younger than the person, and (3) is not the person’s spouse. Holmes, being fifty-five at the time of the incident, and not the spouse of the thirteen-year-old girl, pleaded guilty to the crime of statutory rape.

¶3. Section 97-3-65(3)(c) further provides that a defendant convicted of statutory rape under section (l)(b) shall be sentenced to life in prison or to a term not less than twenty years. For pleading guilty to statutory rape, Holmes could have been sentenced to life in prison. The circuit court imposed a lesser sentence of twenty years, which is the minimum allowable under the statute.

¶ 4. Sentencing is generally within the circuit court’s sound discretion, and we will not disturb a sentence if it is within the term provided for by statute. McKenzie v. State, 856 So.2d 344, 353(¶ 34) (Miss. Ct.App.2003). Our reasoning in McKenzie is also applicable to Holmes’s argument that his sentence is equivalent to a life sentence:

McKenzie alleges that his sentence was tantamount to a life sentence because of his age. We do not know when he or anyone else will die. His sentence was within the statutory guidelines and was not as long as it could have been under the sentencing statute. McKenzie may be subject to what he perceives as a life sentence, but our perception is different.

Id. at 353(1135).

¶ 5. The twenty-year sentence ordered by the circuit court was not only within the term provided for by statute; it was the minimum for which the court could have sentenced Holmes. The sentence is appropriate, and Holmes’s claim is without merit.

¶ 6. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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