author: ROBERTS, J., KING, C.J.,

text:
    Quang Thanh TRAN, Appellant v. STATE of Mississippi, Appellee. Johnson Quoc Nguyen, Appellant v. State of Mississippi, Appellee.
    Nos. 2004-KA-00368-COA, 2004-KA-00369-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.
    Rehearing Denied Oct. 31, 2006.

      Julie Ann Epps, Thomas Richard May-field, Thomas E. Royals, Jackson, attorneys for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before KING, C.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. On January 30, 2004, a jury sitting before the Rankin County Circuit Court found Johnson Quoc Nguyen and Quan Thanh Tran guilty of money laundering in violation of Section 97-23-101 of the Mississippi Code. The circuit court sentenced both Nguyen and Tran to twenty years in the custody of the Mississippi Department of Corrections. Aggrieved, Nguyen and Tran appeal. They raise the following six issues, listed verbatim:

I. THE EVIDENCE WAS INSUFFICIENT TO PROVE THE GUILT OF JOHNSON QUOC NGUYEN BEYOND A REASONABLE DOUBT.
II. THE EVIDENCE IS INSUFFICIENT TO PROVE THE GUILT OF QUANG THANH TRAN BEYOND A REASONABLE DOUBT.
III. THE INDICTMENT IS CONSTITUTIONALLY INSUFFICIENT UNDER THE STATE AND FEDERAL CONSTITUTIONS.
IV. THE COURT ERRED IN DENYING APPELLANTS’ MOTIONS TO SUPPRESS THE EVIDENCE.
V. THE TRIAL COURT ERRED IN NOT SUPPRESSING THE EVIDENCE OF THE MONEY BECAUSE THE STATE LACKED PROBABLE CAUSE FOR ITS SEIZURE.
VI. THE COURT COMMITTED PLAIN ERROR AND/OR COUNSEL WAS INEFFECTIVE IN ALLOWING THE ADMISSION OF THE TESTIMONY OF AGENT LARRY DAVIDSON THAT THE MONEY IN QUESTION WAS THE PRODUCT OF ILLEGAL DRUG TRAFFICKING.

We find that the circuit court erred when it denied Nguyen’s motion for judgment notwithstanding the verdict. Accordingly, we reverse Nguyen’s conviction and render a judgment of acquittal for Nguyen. However, we find no error in Tran’s conviction. As such, we affirm.

FACTS

¶ 2. On December 10, 2002, Deputy Shannon Penn, an interdiction officer with the Rankin County Sheriffs Department, sat in the median of Interstate Highway 20 near the exit for East Brandon, Mississippi. Deputy Penn’s vehicle faced north. The westbound traffic on 1-20 passed in front of him from his right to left.

¶ 3. Around 11:00 a.m., Deputy Penn saw a westbound 1996 Ford F-150 pickup cross the right-hand “fog line.” Deputy Penn testified that the Ford crossed the fog line when it was nearly directly in front of him. At most, the Ford was twenty yards from Deputy Penn when it crossed the fog line. Deputy Penn decided to stop the Ford pickup for careless driving.

114. After he pulled the Ford over, Deputy Penn approached the pickup and requested identification from the three people inside. Deputy Penn found that Quan Thanh Tran drove the pickup with two passengers, Johnson Quoc Nguyen and Hanh Ti My Le. Deputy Penn walked back to his patrol car, where he requested information as to whether any of the occupants had outstanding warrants. As he waited for a response, Deputy Penn returned to the pickup and conducted what he termed a “roadside interview.” That is, Deputy Penn asked the three occupants where they came from, where they were going, and how long they were going to be there. The three occupants indicated that they left Charlotte, North Carolina and were traveling on 1-20 on their way to their destination — Houston, Texas. They said they borrowed the truck and were going to Houston to shop.

¶ 5. Deputy Penn became suspicious. At trial, he testified that “it was some things about their travel itinerary. They were going to a source city, coming from North Carolina, third party vehicle, borrowed type situation.” Deputy Penn asked Tran if he could search the pickup. According to Deputy Penn, Tran consented to a search. Deputy Penn knelt down and looked underneath the pickup. • Deputy Penn found that the pickup had dual gas tanks. Deputy Penn also reportedly saw indications that one of the gas tanks had been removed or otherwise tampered with. He based his suspicions on the facts that: (a) the fuel lines and wires were running to the tank but they were all cut and bent over; (b) the spare tire had been moved; (c) the nuts and the bolts to the tank had been taken off recently because they were shiny and were not rusty; and, (d) the bands that held the tank in place, he could tell they had been removed because of the marks on the tank.

¶ 6. Deputy Penn suspected that there might be contraband in that gas tank. Accordingly, Deputy Penn asked the three occupants to follow him to the shop at the Rankin County Sheriffs Department. From the record, it appears that the three occupants followed Deputy Penn willingly. There is no indication that they objected to following him.

¶ 7. Once they arrived at the sheriffs department, Deputy Penn put the pickup on a lift. Deputy Penn then removed the suspicious gas tank. No gasoline was in the tank, but there was an unusual access panel on the tank. It appeared that someone cut an access hatch into the top of the tank and placed hinges on that access panel. In short, someone cut a secret panel into the gas tank. When Deputy Penn looked inside the gas tank, he found $170,040. The money was bundled and wrapped in clear plastic wrap, then in tin foil and then vacuum sealed wrap. Deputy Penn then interviewed Tran, Nguyen, and Le. Deputy Penn recorded the interviews on video, though Tran, Nguyen, and Le were not aware of it.

¶ 8. They all said they were going to Houston. They all said they were going shopping. They all said that the truck had been purchased within a week or two of the date of the stop. All three occupants of the pickup denied any knowledge of the money. All three occupants claimed that the pickup belonged to Nguyen’s girlfriend in North Carolina.

¶ 9. After the interrogations, the Rankin County Sheriffs Department (RCSD) retained the money found in the gas tank. All three occupants were released. Tran received a traffic citation for crossing over the fog line. Meanwhile, Rankin County initiated a civil forfeiture proceeding.

¶ 10. The record contains a document entitled “Rankin County Sheriffs Department’s Response to Motion .for Relief from Default Judgment.” That document indicates that the Rankin County Sheriffs Department initiated a forfeiture action against the $170,000. Further, it appears that on January 28, 2003, the RCSD received a default judgment against the money. Afterwards, Tran, Nguyen, and Le filed a motion for relief from that default judgment.

¶ 11. On July 17, 2003, Nguyen and Le submitted sworn affidavits in which they denied any knowledge of the money. Tran also submitted a sworn affidavit and claimed that the money was his and that it represented his and his family’s life savings. Tran stated that he kept the money in the gas tank because he did not trust banks. It appears that only after Tran submitted his sworn affidavit did the State initiate criminal proceedings.

¶ 12. On January 26, 2004, the circuit court conducted a hearing on Tran’s, Nguyen’s, and Le’s pretrial motions to quash the indictment and to suppress the evidence found as a result of Deputy Penn’s searches. As for the motion to quash the indictment, Tran, Nguyen, and Le claimed that the indictment against them was so vague and ambiguous that it did not apprise them of the charge against them with sufficiency to adequately prepare a defense. Specifically, they argued that the prosecution failed to identify the “specified unlawful activity” alleged in the indictment against them. The defendants’ attorney stated, “I don’t know whether they’re talking about proceeds from gun running or proceeds from gambling or proceeds. It just says, ‘Specified unlawful activity.’ And I don’t know how to defend an ambiguous statement like that.” The circuit court overruled the defendants’ motion to quash the indictment because the indictment tracked the language of the statute. The circuit court held, “I think the case law is legion on that. If it has the statutory language, it adequately informs the defendant of the charges against him.”

¶ 13. As for the defendants’ motion to suppress, the defendants argued that the circuit court should suppress the evidence that resulted from Deputy Penn’s searches because the stop was improper. According to the defendants, Deputy Penn had no reasonable basis to stop them because he could not have observed the pickup cross the fog line from where he was sitting in the median. The circuit court held that Deputy Penn’s stop was a valid traffic stop. As such, the circuit court denied the defense’s motion to suppress.

¶ 14. Trial started on January 29, 2004. The State called Shannon Penn as its first witness. After Deputy Penn testified, the prosecution called Agent Larry Davidson, a thirteen year veteran of the Federal Drug Enforcement Administration. At that time, Agent Davidson was in charge of a local state and federal anti-drug task force located in Brandon, Mississippi. The prosecution questioned Agent Davidson about his training and experience. After-wards, the prosecution tendered Agent Davidson as an expert witness “in drug trafficking and the proceeds of drug trafficking.” Counsel for the defense voir dired Agent Davidson regarding his qualifications and eventually accepted Agent Davidson as an expert witness.

¶ 15. Agent Davidson then testified that he examined the modified gas tank, read the transcripts of the three defendants’ statements, saw the photographs of the money that Deputy Penn seized, and examined the offense report. Agent Davidson concluded that the money was derived from narcotics trafficking. The prosecution rested after Agent Davidson’s testimony.

¶ 16. Afterwards, the defense rested without calling any witnesses. The jury deliberated and found Tran and Nguyen guilty, but found Le not guilty. Posttrial, Tran and Nguyen then filed unsuccessful motions for judgment notwithstanding the verdict. Tran and Nguyen appeal.

ANALYSIS

I. THE EVIDENCE WAS INSUFFICIENT TO PROVE THE GUILT OF JOHNSON QUOC NGUYEN BEYOND A REASONABLE DOUBT.

¶ 17. Nguyen takes issue with the circuit court’s decision to overrule his motion for judgment notwithstanding the verdict. According to Nguyen, the evidence against him was insufficient to prove beyond a reasonable doubt that he was guilty of money laundering.

¶ 18. When considering a challenge to the sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Bush v. State, 895 So.2d 836(¶ 16) (Miss.2005). If the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” we must reverse and render. Id. “However, if a review of the evidence reveals that it is of such quality and weight that, ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 19. Nguyen was indicted under Section 97 — 23—101(l)(b)(ii)(l) of the Mississippi Code. According to that section:.

Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the state to or through a place outside the state or to a place in the state from or through a place outside the state; (ii) Knowing that the monetary instrument or funds involved in the transportation represent the proceeds of some form of unlawful activity and knowing that such transportation is designed in whole or in part: 1. To conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity ... shall be sentenced to a fine of Five Hundred Thousand Dollars ($500,000.00) or twice the value of the monetary instrument or funds involved in the transportation, whichever' is greater, or imprisonment for not more than twenty (20) years, or both.

Miss.Code Ann. § 97-23-101(l)(b)(ii)(l) (Rev.2003).

¶20. We can find no Mississippi case that has previously addressed this statute. However, Section 97-23-101(l)(b)(ii)(l) virtually tracks word-for-word with its federal counterpart, 18 U.S.C. § 1956(a)(2)(B)(i).

¶ 21. The State strictly focuses its argument on the prospect that the money was derived from the sale of narcotics and that Tran knew that the money was hidden in the gas tank. The State argues that Nguyen and Tran had a joint enterprise and that Nguyen exercised dominion and control over the money. The State goes to great length to connect the money to narcotics and to connect Nguyen to the money. However, the State either mistakenly or intentionally omits discussion of the relevant statute. Additionally, the State inaccurately claims that Nguyen submitted an affidavit and swore that he knew Tran hid his money in the gas tank. Tran’s affidavit clearly stated, “I was not aware of Quang Tran’s savings which was more than $170,000 was in the truck.” Inaccurate arguments notwithstanding, we turn to analysis of the pertinent statute and the elements it contains.

¶22. Pursuant to Section 97-23-101(l)(b)(ii)(l), a prima facie case of money laundering involves four elements. To sustain a conviction under Section 97-23-101(l)(b)(ii)(l), the State must prove, beyond a reasonable doubt, that: (1) Nguyen transported or attempted to transport money across the state border; (2) the money at issue represented proceeds of specified unlawful activity; (3) Nguyen knew that the money represented proceeds of specified unlawful activity; and (4) Nguyen knew that such transportation was designed to conceal or disguise the nature, location, source, ownership, or control of the money at issue. Miss.Code Ann. § 97-23-101(l)(b)(ii)(l)(Rev.2003).

1. The “Transport” Element

¶23. First, we consider whether the State presented sufficient evidence that Nguyen “transport[ed], transmitted], or transferfed], or attempt[ed] to transport, transmit, or transfer a monetary instrument or funds from a place in the state to or through a place outside the state or to a place in the state from or through a place outside the state.... ” Miss.Code Ann. § 97-23-101(l)(b)(Rev 2003).

¶ 24. The State presented evidence that Nguyen was a passenger in a pickup with a modified gas tank and that there was $170,000 secreted in that gas tank. There can be no doubt that $170,000 cash fits within the definition of a “monetary instrument” or “funds.”

¶25. The record indicates that, along with the other two passengers in the pickup, Nguyen claimed that they left Charlotte, North Carolina and traveled through Brandon, Mississippi on their way to Texas. Thus, the State presented evidence that Nguyen was a passenger in a pickup that transported money from a place outside the state (Charlotte, North Carolina) to or through a place in the state (Brandon, Mississippi). Although Nguyen claimed he did not know the money was in the gas tank and did not know to whom the money belonged, the State was not bound to prove Nguyen was aware of the money under this element. Accordingly, we find that the State presented sufficient evidence to satisfy the “Transport” prong of Section 97-23-101(l)(b)(ii)(l).

2. The “Proceeds” Element

¶26. Next, we consider whether the State presented sufficient evidence that the $170,000 “represent[ed] the proceeds of some form of unlawful activity ” Miss.Code Ann. § 97-23-101(l)(b)(ji).

¶27. Agent Davidson testified that he examined the modified gas tank, read the transcripts of the three defendants’ statement, saw the photographs of the money that Deputy Penn seized, and examined the offense report. Agent Davidson concluded that the money derived from narcotics trafficking. Agent Davidson also testified that the manner in which the money was stored further suggested that the money derived from narcotics. Agent Davidson testified that narcotics traffickers frequently wrapped money in the fashion that the $170,000 was wrapped. Agent Davidson explained that, by wrapping the money in plastic wrap and tin foil, then vacuum sealing it, narcotics traffickers and couriers hope to disguise the scent of the money from any drug dog they encounter. As such, we find that the State presented sufficient evidence that the money derived from “some form of unlawful activity”— narcotics trafficking.

3.The First Scienter Element

¶ 28. Section 97-23-101(l)(b)(ii)(l) contains two scienter elements. The first scienter element requires that a defendant “[knew] that the monetary instrument or funds involved in the transportation represented] the proceeds of some form of unlawful activity....” Here, we are of the opinion that the record reveals no evidence that Nguyen knew the money was hidden in the gas tank or that he knew it represented proceeds of specified unlawful activity.

¶ 29. Since Nguyen denied having any knowledge that the money was secreted in the gas tank and was not caught in actual possession of the money or the truck in which it was discovered, the State was required to prove that Nguyen had constructive possession of the money. The Mississippi supreme court explained the theory of constructive possession in Curry v. State, 249 So.2d 414 (Miss.1971). In Curry, the Supreme Court stated:

[T]here must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the [contraband] involved was subject due to his dominion or control. ■ Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

Id. at 416 (emphasis added).

¶ 30. In the present case, the evidence indicated that Nguyen’s girlfriend purchased the truck two weeks before Nguyen, Tran, and Le left on their trip to Texas. Deputy Penn found the money hidden in a modified gas tank in that truck. While there is evidence that connects Nguyen to the truck, there is no evidence that Nguyen owned the truck. Moreover, there is no evidence that Nguyen knew that $170,000 was secreted in the false gas tank. By his affidavit, Nguyen stated that he was not aware of the money, had never seen it before, and did not know to whom it belonged. According to Tran’s affidavit, Tran owned the money and he “did not tell the others of the money in [his] truck.” While it may seem suspicious that Tran was able to somehow borrow Nguyen’s girlfriend’s truck and hide $170,000 in it, all without Nguyen’s knowledge, that suspicion does not rise to the level of proof beyond a reasonable doubt that Nguyen knew the money in the gas tank represented proceeds from narcotics trafficking. It is possible that Nguyen lied when he said he did not know about the money. It is also possible that Tran lied when he said Nguyen did not know about the money. Still, those possibilities, alone, are insufficient proof that Nguyen knew that the money represented proceeds of some form of unlawful activity. Accordingly, we reverse Nguyen’s conviction and render a judgment of acquittal. We consider the remaining issues as they apply to Tran.

II. THE EVIDENCE IS INSUFFICIENT TO PROVE THE GUILT OF QUANG THANH TRAN BEYOND A REASONABLE DOUBT.

¶ 31. Tran appeals the circuit court’s decision to overrule his motion for judgment notwithstanding the verdict. Tran claims that the evidence was insufficient to prove his guilt beyond a reasonable doubt. Like Nguyen, Tran was convicted of money laundering, a violation of Section 97-23-101(l)(b)(ii)(l) of the Mississippi Code. We stated our standard of review in the issue above. For brevity’s sake, we will not repeat it. It should suffice to say that we consider the sufficiency of the evidence. Without laboring over Section 97-23-101(l)(b)(ii)(l), already discussed above, we proceed.

1. and 2. The Transport Element and the Proceeds Element

¶ 32. We found sufficient evidence to sustain the State’s proof on these prongs in Issue I. above. The State’s proof of these two elements was the same for Tran as it was for Nguyen. Accordingly, we again find that the State presented sufficient evidence of the first two prongs of Section 97 — 23—101(l)(b)(ii)(l) as they apply to Tran.

3. The First Scienter Element

¶ 33. In Issue I. above, we found that the State presented insufficient evidence that Nguyen knew the money represented proceeds of specified unlawful activity. In U.S. v. Carr, 25 F.3d 1194 (3d Cir.1994), the Third Circuit Court of Appeals considered whether the federal government presented sufficient evidence to sustain a conviction for attempted, money laundering under 18 U.S.C. § 1956(a)(2)(B)® — the federal counterpart to 97-23-101(l)(b)(ii)(l). In considering whether the government presented sufficient evidence to sustain its burden of proof under the first scienter element, Carr found sufficient evidence where: (a) the jury heard testimony that the defendant took numerous trips to the Cayman Islands and Colombia just after cash exchanges between a co-conspirator and a cooperative government witness; (b) the defendant admitted to knowing and frequently traveling with the ringleader of the money laundering conspiracy; (c) the jury heard testimony about an occasion when the defendant lied to passport officials in order to obtain a new passport which would not contain numerous stamps showing visits of short duration to Colombia; (d) evidence showed that the defendant lied to Customs officials about how he obtained a blue bag that contained $180,000 in $100 bills; (e) taped phone conversations both before and after the defendant was caught with the money indicated that the defendant knew the money he was carrying had been derived from illegal transactions; and (f) positive alerts by drug sniffing dogs indicated that much of the money was likely used in drug transactions. Id at 1206-07.

¶ 34. Here, there is much less evidence than in Carr. Still, the jury could reasonably conclude that Tran initially denied ownership of the money because he knew it represented the proceeds of narcotics trafficking. Agent Davidson testified regarding common methods of wrapping money exchanged in narcotics transactions and the purpose of wrapping it as such — to minimize the scent of the money and increase the likelihood of evading capture.

¶ 35. The defendant in United States v. Gallo, 927 F.2d 815 (5th Cir.1991) was arrested while transporting $299,985 in his car. To prove that the defendant in Gallo knew the money represented proceeds of narcotics trafficking, the Government introduced the following evidence: (a) the defendant received a box of money from a suspected narcotics trafficker who had been under DEA surveillance for several months; (b) the suspected narcotics trafficker transferred the box of money shortly after he made a call from a public phone, a common method drug dealers use to set up meetings; (c) the box in the defendant’s car contained money wrapped in foil; (d) on the foil packets, the DEA found fingerprints of another known drug dealer under DEA surveillance; (e) after the defendant was arrested, he made two false exculpatory statements about the car and the box of money; (f) on the same day that the suspected narcotics trafficker gave the defendant the box of money, the suspected narcotics trafficker gave $300,000 that was wrapped in foil and placed in a cardboard box to the known drug dealer — in exchange for 25 kilograms of cocaine; (g) the transfer between the suspected narcotics trafficker and the known drug dealer was very similar to the transfer between the suspected narcotics trafficker and the defendant; (h) the DEA searched the known drug dealer’s house and found $1.2 million and a money counting machine; and (i) the DEA searched the suspected narcotics trafficker’s house and found fifty kilograms of cocaine. Id. at 822. The Gallo court held that, based on the concerted action among the defendants, the suspected narcotics trafficker, and the known drug dealer, combined with the defendant’s false exculpatory statements, the jury could reasonably infer that the defendant knew he was transporting proceeds of unlawful activity. Id.

¶ 36. Like Nguyen, Tran denied knowledge of the triple-wrapped money hidden in the false gas tank. However, Tran recanted his initial denial and later filed a sworn affidavit incident to the forfeiture proceeding. In his sworn affidavit, Tran claimed the money represented his life savings. Tran lied at least once. Either he lied when he said the money did not belong to him, or he lied when he said it did. The jury could have found that Tran told Deputy Penn that the money did not belong to him because he did not want to be connected to it. That is, Tran’s initial denial could have been for exculpatory reasons. The State presented evidence that the money Tran claimed represented his life savings was wrapped in a manner common to methods used in narcotics trafficking. True enough, Tran did not confess by testifying that the triple-wrapped and concealed money was, in fact, the fruits of some unlawful activity. However, we are not called upon to weigh the evidence in this case. Rather, we must determine whether, after viewing the evidence in the fight most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Bush, 895 So.2d at (¶ 16). Viewing the evidence in the fight most favorable to the prosecution, the jury heard evidence that (a) Tran drove a truck from North Carolina to Houston, Texas for the purpose of a shopping trip, (b) the truck was not owned by any of its occupants, (c) the truck had an auxiliary gas tank, (d) the auxiliary gas tank had been electronically and physically disconnected and altered into a secret storage compartment, (e) Tran admitted in his affidavit that he stored over $170,000 in a false gas tank, (f) Tran admitted that the money was his, (g) the money was wrapped up and plastic and sealed, (h) Deputy Penn testified that Tran initially denied ownership of the money, and (i) Agent Davidson testified that, in his expert opinion, the money was wrapped in a manner intended to disguise the scent of the money from drug dogs. The jury was called upon to review the conflicting testimony. They were instructed by the circuit court to use their good common sense and sound honest judgment in evaluating the evidence. The jury heard evidence that could lead a rational trier of fact to find sufficient proof of the essential elements of the crime beyond a reasonable doubt. The combination of Tran’s inconsistent sworn statements, the manner in which the money was wrapped, and the fact that Tran stored what he claimed was his fife savings in the gas tank of a pickup amount to sufficient evidence to sustain Tran’s conviction for money laundering.

4. The Concealment Scienter Element

¶ 37. The final element under Section 97 — 23—101(l)(b)(ii)(l) is whether the State presented sufficient evidence that Tran knew that his transportation of the money was designed to conceal or disguise the nature, location, source, or control of the proceeds of narcotics trafficking.

¶ 38. Carr found sufficient evidence for a rational jury to find a defendant guilty where (a) the government presented evidence that the defendant received a blue carry-on bag at an airport from someone; (b) when asked to declare all monetary instruments over $10,000, the defendant stated that he had $4,000 in cash; (c) a subsequent consensual search of the defendant’s blue bag revealed $180,000 in cash secreted in two coffee thermos mugs and a talcum powder container; (d) the defendant was carrying $6,000 in $100 bills on his person; (e) when asked about how he came to possess the bag, the defendant told customs officials a highly suspicious, if not incredible story that he had received an anonymous phone call during which he was told to retrieve the bag from a train station locker and to transport it to Colombia. Carr, 25 F.3d at 1206. According to Carr, by returning a guilty verdict on this count, the jury resolved a credibility issue in favor of the government. Id.

¶ 39. In United States v. Gonzalez-Rodriguez, 966 F.2d 918 (5th Cir.1992), the fifth circuit court of appeals held that the government presented insufficient evidence to sustain a money laundering conviction under slightly different statutory language. Subtle statutory variation notwithstanding, Gonzalez-Rodriguez found insufficient evidence of the defendant’s design to conceal the nature, location, source, ownership, or control of criminal proceeds where: (a) the government did not introduce any evidence of the defendant’s travel itinerary; (b) the defendant voluntarily cooperated with law enforcement officers when they asked about the cash in her possession; and (c) the defendant did not make any false exculpatory statements to the law enforcement officers. Id. at 925.

¶ 40. The record before us reveals that the jury could have inferred concealment. Tran had an overall plan or design to move what Agent Davidson testified to be proceeds of narcotics-sales from North Carolina through Mississippi. Assuming Tran put his life savings in a false gas tank with the intent to transport them to Houston, Texas, that act is clearly designed to facilitate undetected transportation of the cash. Further, Agent Davidson testified that the money was wrapped in a manner designed to disguise the scent of money from drug-sniffing dogs. So, we can conclude that Tran, the admitted owner of the money, wrapped the money to disguise its scent and stowed the money in a false gas tank to disguise it from sight. Additionally, Tran gave an inconsistent statement when he told Deputy Penn that the money did not belong to him. While it defies logic for one to refuse to acknowledge ownership of one’s life savings, only to attempt to reclaim it at a later date, that act arguably concealed Tran’s ownership of the money, and thereby concealed the source of the money.

¶ 41. The plan in which Tran participated effectively removed the funds from someone’s hands and concealed someone’s ownership and control of the funds. The movement of these funds to Texas, as a part of the cycle of the drug trade, was necessary because narcotics traffickers cannot actually go to a bank, deposit proceeds from narcotics trafficking, and pay a supplier. Thus, the concealed movement of the funds was an integral part of the business of the drug enterprise. Additionally, Tran’s method of carrying out his mission included hiding or concealing the funds in the gas tank and packaging the money to conceal it from drug dogs. Accordingly, we affirm.

Ill, THE INDICTMENT IS CONSTITUTIONALLY INSUFFICIENT UNDER THE STATE AND FEDERAL CONSTITUTIONS.

¶ 42. Tran claims that the indictment was insufficient because it merely recited Section 97-23-101 and did not provide any essential facts that alleged a violation of that statute. Tran also claims that the indictment failed to provide sufficient notice of the charge against him. Specifically, Tran points to the term “specified unlawful activity.” Tran claims that this language, without more, is too vague to provide notice of the charge against him. Tran acknowledges that “[i]t is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” Hamling v. U.S., 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). However, Tran notes that “[w]here guilt depends so crucially upon such a specific identification of fact ... an indictment must do more than simply repeat the language of the criminal statute.” Russell v. U.S., 369 U.S. 749, 764, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Accordingly, Tran claims that the Mississippi money laundering statute, Miss.Code Ann. § 97-23-101, includes language that is insufficiently vague and generic to merely parrot the language of the statute.

¶ 43. In general an indictment is sufficient if it tracks the language of the relevant criminal statute. Calhoun v. State, 881 So.2d 308, 311 (Miss.Ct.App.2004). Here, “specified unlawful activity” includes any felony under state or federal law. Miss.Code Ann. § 97-23-101(l)(a). The Fifth Circuit Court of Appeals has considered similar arguments. In resolving such a contention, the Fifth Circuit held:

This argument misinterprets the term, “specified unlawful activity.” This term does not imply that the indictment must list a specific unlawful act that is the source of the money. Instead, the statute proposes “specified unlawful activity” as a term of art. A specified unlawful activity is one of a set of federal crimes listed in 18 U.S.C.A. § 1956(c)(7). Section 1957 merely requires money to be derived from a particular set of federal crimes. It does not require the indictment to specify which unlawful activity generated the funds in question. In any case, we note that the money laundering counts of the indictment included allegations sufficient to (1) enumerate each element of the offense; (2) provide Appellants with notice of the precise transactions for which they were being prosecuted; and (3) prevent future prosecutions for the same offense. Thus, the indictment was sufficient.

U.S. v. Loe, 248 F.3d 449, 468 (5th Cir.2001) (footnotes omitted).

¶ 44. We find the language in Loe persuasive and pertinent to Tran’s present argument. We do not disagree with the dissent regarding the definition of “specified unlawful activity.” We do respectfully disagree, however, over whether the specific unlawful activity is a necessary portion of the indictment. While the dissent is correct in that the language of 18 U.S.C.A. § 1957 is not identical to the language of Section 97-23-101(l)(a), the distinction is minimal. The federal statute lists “specified unlawful activity” as one of a set of federal crimes listed in another federal statute. Our Mississippi counterpart states that “specified unlawful activity” includes any felony under state or federal law. What is more, the indictment against Tran enumerated each element of the offense. Additionally, the indictment provided Tran with notice that he was being prosecuted incident to his transportation of $170,000 through Brandon, Mississippi. Accordingly, we find no error and affirm.

IV. THE COURT ERRED IN DENYING APPELLANTS’ MOTIONS TO SUPPRESS THE EVIDENCE.

¶45. Tran filed a pretrial motion to suppress the evidence that resulted from Deputy Penn’s initial traffic stop. Tran claimed that Deputy Penn had insufficient probable cause or reasonable suspicion to stop him. The circuit court concluded that the traffic stop was valid and that Deputy Penn’s search was a valid consent search.

¶46. Aggrieved, Tran and Nguyen repeat their argument that Deputy Penn lacked probable cause and had no basis to form a reasonable suspicion that Tran violated a traffic ordinance. Tran argues that, since Deputy Penn’s initial stop was unreasonable, Deputy Penn’s subsequent search and the fruits of that search should have been suppressed.

¶47. The State submits that Deputy Penn was justified when he stopped Tran. The State also cites Blake v. State, 825 So.2d 707 (Miss.Ct.App.2002) and Doolie v. State, 856 So.2d 669 (Miss.Ct.App.2003) to support its assertion that “crossing a fog line” is a reasonable basis for a stop. In Blake and Doolie, this Court affirmed convictions for driving under the influence. In each case, “crossing the fog line” was the basis for the initial stop. However, whether that was a reasonable basis for a stop was never discussed in either Blake or Doolie.

¶ 48. “A law enforcement officer has the authority to stop a motorist if the officer has probable cause to believe that the person is committing a traffic offense.” Burnett v. State, 876 So.2d 409(¶ 6) (Miss.Ct.App.2003) (citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89,(1996)). Moreover, “failure to have regard for the width and use of the street by swerving off the side of the road or crossing the marker lines constitutes probable cause for a traffic stop.” Henderson v. State, 878 So.2d 246(¶ 8) (Miss.Ct.App.2004). According to precedent, Deputy Penn had a reasonable basis to stop Tran.

¶ 49. The dissent is of the opinion that Deputy Penn’s search of the gas tank exceeded the scope of Tran’s consent. Although that issue is not the subject of any of Tran’s assignments of error, we concede that such a search could exceed the scope of consent given the circumstances and the presence of evidence among the record indicative of withdrawn consent. Neither Tran, Nguyen, or Le testified. The only evidence adduced at trial came from Deputy Penn. Deputy Penn testified that the defendants consented to the search of the truck and consented to following him to the shop so that the truck could be more thoroughly searched. Moreover, after all occupants denied knowledge of the money, all were released and Tran received a traffic citation for careless driving. Here, there is no evidence in the record that Tran or any other passenger withdrew their consent to search the gas tank or otherwise objected to Deputy Penn’s subsequent search of the gas tank. As such, we find no error in the circuit court’s decision to deny Tran’s motion to suppress.

V. THE TRIAL COURT ERRED IN NOT SUPPRESSING THE EVIDENCE OF THE MONEY BECAUSE THE STATE LACKED PROBABLE CAUSE FOR ITS SEIZURE.

¶ 50. In this issue, Tran claims that Deputy Penn should not have seized the money because there was no evidence that it had been involved in an illegal transaction. Tran notes that there were no traces of drugs found on the money, in the truck, or on any of the defendants. Tran adds that there were no reports from other law enforcement agencies relevant to the defendants, nor was there any information on any of the defendants in the DEA database.

¶ 51. While all of the above is true, Tran omits certain relevant facts. Neither he nor his passengers claimed ownership of the $170,000 when Deputy Penn found it stowed in a secret compartment of a false gas tank. Tran cites no authority stating that a law enforcement agency may not seize unclaimed money packaged in a fashion common among narcotics traffickers. This issue is without merit.

VI. THE COURT COMMITTED PLAIN ERROR AND/OR COUNSEL WAS INEFFECTIVE IN ALLOWING THE ADMISSION OF THE TESTIMONY OF AGENT LARRY DAVIDSON THAT THE MONEY IN QUESTION WAS THE PRODUCT OF ILLEGAL DRUG TRAFFICKING.

¶ 52. Here, Tran argues that the trial judge erred when he allowed Agent Davidson to testify as an expert witness. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Burton v. State, 875 So.2d 1120(¶ 6) (Miss.Ct.App.2004). Abuse of discretion will only be found where a defendant shows clear prejudice resulting from an undue lack of constraint on the prosecution or undue constraint on the defense. Id. This Court shall not disturb a trial court’s decision unless it is clearly wrong. Id.

¶ 58. The State tendered Agent Davidson as an expert witness in the field of “[d]rug trafficking and proceeds from drug trafficking.” Counsel for Tran did not object. As such, Tran failed to make a contemporaneous objection. “It is elementary that, for preservation of error for review, there must be contemporaneous objections.” Christmas v. State, 700 So.2d 262, 271 (Miss.1997). Tran acknowledges that he is barred from raising this issue for the first time on appeal.

¶ 54. Nevertheless, Tran claims that the trial judge committed plain error when he allowed Agent Davidson to testify as an expert witness. Plain error is an error that affects a defendant’s substantive rights. Dobbins v. State, 766 So.2d 29(¶ 5) (Miss.Ct.App.2001). Tran makes the bare and conclusory argument that admission of Agent Davidson’s testimony “affected substantial rights of the defendants.” Further, Tran argues that “this Court should find plain error and reverse because [Agent Davidson’s expert testimony] denied Appellants their rights to confrontar tion and cross-examination, due process, and a fair trial under both the state and federal constitutions.” However, Tran fails to indicate just how Agent Davidson’s expert testimony infringed upon those rights. We decline to extend plain error under the circumstances.

¶ 55. As for Tran’s ineffective assistance of counsel claim, we find that allegation to be premature. When a party raises an ineffective assistance of counsel claim on direct appeal, the proper resolution is to deny relief without prejudice to the defendant’s right to assert the same claim in a post-conviction relief proceeding. Pittman v. State, 836 So.2d 779(¶ 38) (Miss.Ct.App.2002). “We should reach the merits on an ineffective assistance of counsel issue on direct appeal only if ‘(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.’ ” Id. at (¶ 39) (quoting Colenburg v. State, 735 So.2d 1099, 1101 (Miss.Ct.App.1999)). If we do not consider the issue due to the state of the record, assuming we affirm the conviction, Tran may raise his ineffective assistance of counsel claim in post-conviction relief proceeding. Id.

¶ 56. The parties have not entered any such stipulation, and the record does not affirmatively show ineffectiveness of constitutional dimensions. Accordingly, Tran may raise Ms ineffective assistance of counsel claim in a post-conviction relief proceeding.

¶ 57. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF QUANG THANH TRAN OF MONEY LAUNDERING AND SENTENCE TO TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF TRAN’S APPEAL ARE ASSESSED TO THE APPELLANT. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF JOHNSON QUOC NGUYEN OF MONEY LAUNDERING AND SENTENCE TO TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS REVERSED AND RENDERED. ALL COSTS OF NGUYEN’S APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

KING, C.J.,

Dissenting.

¶ 58. I agree with the majority in its resolution of Cause Number 2004-KA-00369, Nguyen v. State. However I believe that the majority errors in its resolution of Cause Number 2004-KA-00368, Tran v. State, and therefore respectfully dissent.

¶ 59. Contrary to the majority’s holding, I am of the belief that (1) the evidence was insufficient to find beyond a reasonable doubt that Tran was guilty of money laundering, (2) the indictment was fatally defective and (3) the search and resulting seizure of the money was improper.

¶ 60. Tran was indicted for money laundering under Section 97-23-101 of the Mississippi Code. The specific portion of the Code under which Tran was charged provides:

(l)(b) Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the state to or through a place outside the state to a place in the state from or through a place outside the state;
(ii) Knowing that the monetary instrument or funds involved in the transportation represent the proceeds of some form of unlawful activity and knowing that such transportation is designed in whole or in part:
(1.) To conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity;

¶ 61. The evidence offered by the State to prove Tran’s guilt consisted of the testimony of two witnesses, Officer Shannon Penn, who made the traffic stop, and Drug Agent Larry Davidson. The core of Officer Penn’s testimony is found in the following exchange elicited during cross examination:

Q. If you could tell me essentially what it says that you are charging these defendants with?
A. Smuggling.
Q. Is there a statute in the state of Mississippi for smuggling?
A. Sir, I don’t know if there is or not.
Q. So what were they smuggling?
A. Money.
Q. Is it against the law to have money in your pocket?
A. No, sir, not in your pocket.
Q. Is there a statute that says it’s against the law to keep it in your sun visor, on top, in your sun visor?
A. No, sir.
Q. So how could they be smuggling money?
A. They had it in a gas tank. They had it wrapped to keep a dog from smelling it, to have it hard to find so they could get it from one state to the other without police officers finding it.
Q. But that’s not against the law.

¶ 62. Drug Agent Davidson’s sole contribution to the case was to testify that in his expert opinion, the money seized was derived from drug trafficking. The core of Drug Agent Davidson’s testimony is found in the following exchanges elicited during cross examination:

Q. The term knowing that the property involved in a financial transaction represents proceeds from some drug activity, explain to me how you arrived at that?
A. Quite simply. Narcotics goes, let’s say for example, North Carolina, could be coke, could be marijuana. Let’s say it’s only five kilos of coke. It gets to North Carolina, they open it up. It’s 98 percent pure. You can’t take 98 percent pure coke. So what you do is you take a cutting agent, and you turn that one kilo of coke into five. So now, instead of your 14 thousand-dollar wholesale cocaine, now you have a 50 thousand-dollar wholesale thing.
And you start selling it off to people in five dollars, ten dollars, 20 dollars, hundred-dollar amounts. If you got a very good client, maybe thousand-dollar amounts; a very, very good client, maybe ten thousand, maybe whole kilos at a time. That cocaine has to get there, it has to be sold. And when you sell it, you come up with cash. And when you come up with cash, that cash has to get back to the people that provided that narcotics.
Q. But you have no direct evidence in this case that happened?
A. If you’re asking me if I was in North Carolina and saw something sold, then no.
* * * * *
Q. But you know that the term conducts, but you have no real evidence that a transaction took place. Like you said, Hosea gave, you have no evidence of a transaction?
A. That is correct. I wasn’t witnessing or surveilling a transaction between your clients and anybody, no.
Q. Right. The only financial transaction, you didn’t witness any financial transaction like quid pro quo, here’s the drugs, here’s the money?
A. No, sir, I did not.
Q And all the stuff that you reviewed, you didn’t see anything like?
A. No, I didn’t see any surveillance reports from other officers in North Carolina or any of that, no.
Q. Those people were not tagged or followed from North Carolina by other FBI agents? For your information, they don’t even have a felony arrest?
Q. Special Agent Davidson, I meant there are no convictions of any felonies of my clients. Were you aware of that?
A. I’m aware of that, yes, looking at their NCIC records, no convictions.
Q. Does that play any part in your opinion?
A. No, sir, not at all.
* * * *
Q. And you opinion is that it derived from some type of unlawful activity?
A. No, no, sir.
Q. Proceeds at some point?
A. I didn’t say some type of illegal activity. I said proceeds of narcotics trafficking.
Q. Although you have no direct evidence yourself and none of your agents were following them or knew anything about this?
A. None of my agents were following, no, sir.
Q. Let me ask you, the HIDTA group is a big group because I know they have different places throughout the state and throughout the country. That there was nothing in the HIDTA group that related to any of my clients. Did you investigate them?
A. I did.
Q. What did you find?
A. I found in the DEA data bases, no intelligence on your clients.

¶ 63. The majority cites the cases of United States v. Gallo, 927 F.2d 815 (5th Cir.1991) and U.S. v. Carr, 25 F.3d 1194 (3rd Cir.1994), to say that the evidence was sufficient to find Tran guilty beyond a reasonable doubt of money laundering. However the facts in these cases are unlike the facts in Tran. In the cases cited by the majority, the evidence showed a direct connection between the defendants, and persons known by law enforcement to be involved with drug trafficking. Speculation and guesswork by the majority notwithstanding, there is no such connection in this case. Likewise, absent proof of some direct connection, there is no proof that the actions of Tran were taken knowing the money represented the fruits of unlawful activity.

¶ 64. The indictment in this case was insufficient in that it failed to include a required element. The relevant portion of the indictment reads: “Quang Thanh Tran on or about the 10th day of December, 2002, in the county aforesaid and within the jurisdiction of this Court, did willfully, unlawfully and feloniously transports or attempts to transport a monetary instrument or funds from a place in the state to or through a place outside the state or to a place in the state from or through a place outside the state knowing that the monetary instrument or funds involved in the transportation represent proceeds of some unlawful activity and knowing that such transportation was designed to conceal or disguise the nature, location, the source, the ownership or the control of the proceeds. ...”

¶ 65. Mississippi Code Section 97-23-101(l)(b)(ii)(l) provides that:

(b) Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the state to or through a place outside the state to a place in the state from or through a place outside the state;
(ii) Knowing that the monetary instrument or funds involved in the transportation represent the proceeds of some form of unlawful activity and knowing that such transportation is designed in whole or in part:
1. To conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity;

¶ 66. Contrary to the clear language of the relevant statute, the indictment failed to indicate the “specified unlawful activity” from which the funds were derived.

¶ 67. The majority finds that the indictment was sufficient. It reaches this conclusion by relying upon the case of U.S. v. Loe, 248 F.3d 449 (5th Cir.2001), which decided a similar issue under Title 18 U.S.C.A. § 1956, which makes money laundering a crime under federal law. However, I would note that there is a major distinction between the state and federal statutes. That distinction is the statutory definition of “specified unlawful activity” is found in Title 18 U.S.C.A. § 1956(c)(7).

A specified unlawful activity is one of a set of federal crimes listed in 18 U.S.C.A. § 1956(c)(7). Section 1957 merely requires money to be derived from a particular set of federal crimes. It does not require the indictment to specify which unlawful activity generated the funds in question. In any case, we note that the money laundering counts of the indictment included allegations sufficient to (1) enumerate each element of the offense; (2) provide Appellants with notice of the precise transaction for which they were being prosecuted; and (3) prevent future prosecution for the same offense.

Loe, 248 F.3d at 468.

¶ 68. The phrase “specified unlawful activity” appears consistently throughout 97-23-101. Unless a definition is supplied, or the context in which the term is used indicates otherwise, words and phrases are to be accorded their ordinary meaning. The state statute contains no definition of the term, and contrary to the Fifth Circuit’s position, there is nothing to suggest that the words “specified unlawful activity” should not be accorded an ordinary interpretation.

¶ 69. The root word “specific”, as defined in the Third edition of the American Heritage Dictionary, means explicitly set forth, or definitive. There is no definitive or explicitly set forth unlawful activity in the indictment. I would therefore find it to be defective.

¶ 70. I would also hold the search and seizure of the truck to be improper. Officer Penn received permission to search the truck on the side of the road. There is no rational interpretation of that permission which would, under those circumstances give to him the right to disassemble the truck. When Officer Penn asked for permission to search the truck, it was to look at the gas tank. This is evident from the following testimony elicited during direct examination:

Q. What do you feel like you needed to do at that point?
A. I asked the person driving for permission to search the truck. He then gave me a verbal consent to search the truck. After he gave me the verbal consent, I then started the search of the pickup.
Q. During your search, what part of the truck aroused some interest to you?
A. On the model pickup they were driving, the gas tanks on it are the first place that I really wanted to have a look on it.
Q. Did you see anything on the gas tank that led you to believe that this gas tank had recently been removed?
A. On the back gas tank of this model pickup had been removed.
Q. You were able to view that? What physically did you see on the gas tank that led you to make that conclusion, Officer Penn?
A. The nuts and bolts on the tank you could tell had been recently been removed because they were shiny and there was no rust. The bands that hold the tank into place, you could tell they had been removed because of the marks on the tank.
Q. Did that lead you to believe that there might be contraband in that gas tank?
A. Yes, sir.

¶ 71. When Penn saw the gas tank, he determined at that point that he would remove it from the truck In an effort to place Officer Penn’s conduct in the best light, the above testimony is followed by this exchange between the prosecutor and Penn.

Q. Were the defendants asked to follow you to the sheriffs department?
A. Yes, sir.
Q. That would have been what part of the sheriffs department?
A. Sheriffs department shop.
Q. Did they agree to do so?
A. Yes, sir.

¶ 72. When Officer Penn directed the defendants to come to the sheriffs department shop so that he could conduct a thorough search, it was a command performance, and they were for all practical purposes under arrest. As such, any search done at the shop would have required a new request to conduct a search, or a warrant authorizing the same, or it must have been incident to a lawful arrest. Because none of these things occurred, the seizure and search were improper.

¶ 73. I would therefore reverse and render this conviction as well.

LEE, P.J., AND IRVING, J., JOIN THIS OPINION.

      . "Lying to law enforcement officers might provide insufficient evidence of guilt standing alone, but in conjunction with other evidence, lying provides an allowable inference of guilt to sustain a conviction in a sufficiency of evidence challenge.” Carr, 25 F.3d 1194 (citations omitted).


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Dorothy RAY and Richard Gregory Ray, Appellants v. Robert Dean RAY, Individually and As administrator of the Estate of Jennifer Marie Ray, Deceased, Floyd Malcolm Ray, II and David Glenn Ray, Appellees. In the Matter of the Estate of Jennifer Marie Ray, Deceased. Robert Dean Ray, Floyd Malcolm Ray, II and David Glenn Ray, Appellants v. Dorothy and Richard Gregory Ray, Appellees.
    Nos. 2006-CA-00210-COA, 2006-CA-00712-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2007.

      Robert Nicholas Norris, Louis H. Watson, Jr., Jackson, attorneys for appellants.
    Kuykendall Horne-Murry, W. Dean Belk, Indianola, attorneys for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. At issue in this appeal is whether the Chancery Court of Sunflower County erred in denying Dorothy Ray and Richard Gregory Ray’s petition for redetermination of heirs of the decedent, Jennifer Marie Ray. Robert Dean Ray, individually and on behalf of Floyd Malcolm Ray, II and David Glen Ray, argues that he is entitled to interest from the date that the Georgia relatives’ petition for redetermination of heirs was denied until the date of final adjudication in this Court, to be charged against and deducted from the Georgia relatives’ share in the proceeds of the wrongful death claim for the death of Jennifer Ray. Finding that the chancellor did not err in denying the Georgia relatives’ petition for redetermination of heirs, we affirm. We further decline to find that the chancellor erred in denying the Texas relatives’ motion for interest to be taxed on the Georgia relatives’ eventual proceeds of the wrongful death suit settlement.

PROCEDURAL HISTORY AND UNDERLYING FACTS

¶ 2. Jennifer Marie Ray died in a motor vehicle accident in Sunflower County on August 6, 2008. Jennifer was survived by her mother, Dorothy Ray, and five half-siblings-two on her mother’s side and three on her father’s side. On February 26, 2004, one of Jennifer’s half-siblings on her father’s side, Robert Dean Ray, petitioned and was appointed as administrator of her estate and was issued letters of administration by the Chancery Court of Sunflower County. Thereafter, Robert filed a petition to determine heirs and approve the wrongful death claim on behalf of the estate. A hearing was held on the petition on April 28, 2004, and counsel for Jennifer’s mother and all five of her half-siblings were present. Thereafter, the chancellor issued a decree adjudicating Jennifer’s heirs-at-law to be her mother and all five half-siblings. Additionally, a decree was issued finding Jennifer’s legal residence at the time of death to be Sunflower County, Mississippi, and holding that the Mississippi Wrongful Death Statute applies to the claims involving Jennifer’s death.

¶ 3. On July 29, 2004, Jennifer’s mother, Dorothy, and half-brother, Richard Ray, filed a wrongful death action in the Circuit Court of Sunflower County. Approximately two weeks after filing the complaint, Dorothy and Richard’s attorney withdrew his representation in the chancery court and the circuit court cases and they remained unrepresented until their new counsel filed a notice of appearance in the circuit court on December 17, 2004. Thereafter, Dorothy and Richard sought a ruling from the circuit court that Jennifer’s wrongful death suit jurisdiction lay in Georgia, contradicting the chancery court order finding that Mississippi was the proper jurisdiction for the wrongful death suit. The circuit court declined Dorothy and Richard’s request, holding that the chancery court decree adjudicating the jurisdiction to be in Mississippi was not subject to collateral attack.

¶4. After the circuit court declined to find that jurisdiction for the wrongful death suit was in Georgia, counsel for Dorothy and Richard entered an appearance in the chancery court action and sought to set aside and vacate the decree determining the heirs by filing a petition for redetermination of Jennifer’s heirs on September 26, 2005. This petition for re-determination of heirs was premised upon the discovery of new evidence, namely that Jennifer’s residency was in Georgia prior to her death and that an error occurred in determining that Jennifer’s heirs included her half-siblings under Georgia and Mississippi law. The chancellor denied Dorothy and Richard’s petition and, from this denial, they now appeal.

¶ 5. During the pendency of the litigation in the circuit and chancery courts, a settlement was reached in the wrongful death action filed in the circuit court among all six of the wrongful death beneficiaries and the defendants. However, the defendants of the wrongful death action were unwilling to complete settlement and disburse the settlement funds until final resolution of this appeal.

¶ 6. In this appeal, the Georgia relatives assert that the chancery court abused its discretion in finding that a redetermination of heirs was not warranted. While the Georgia relatives recognize that their petition for redetermination of heirs was untimely, as it was filed approximately seventeen months after the chancellor’s determination of heirs, they argue that extraordinary and compelling circumstances exist so as to warrant the grant of their petition pursuant to Mississippi Rule of Civil Procedure 60(b)(6). In support of their argument, the Georgia relatives argue that the evidence clearly shows that the chancery court erred in determining that Jennifer was a resident of Mississippi and that the decree failed to determine the wrongful death beneficiaries of Jennifer. In response, the Texas relatives argue that the trial court correctly denied the untimely petition for redetermination of heirs because no extraordinary or compelling circumstances exist so as to justify such relief pursuant to Mississippi Rule of Civil Procedure 60(b)(6). Additionally, the Texas relatives argue that even if we find that the chancery court should have granted the Georgia relatives’ petition for rede-termination of heirs, that the decedent’s heirs would remain the same, thus the Georgia relatives are due no relief from the chancery court decree. Lastly, the Texas relatives seek interest in the amount of eight percent to be charged against the Georgia relatives’ share of the wrongful death benefits.

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN DENYING THE GEORGIA RELATIVES’ PETITION FOR REDETERMINATION OF HEIRS?

¶ 7. Mississippi Rule of Civil Procedure 60(b) provides for relief from a judgment based upon the showing of extraordinary and compelling circumstances. Briney v. United States Fid. & Guar. Co., 714 So.2d 962, 966 (Miss.1998). An appellate court is to review the grant or denial of a Rule 60(b) motion for an abuse of discretion. R.K. v. J.K., 946 So.2d 764, 776(¶ 35) (Miss.2007). A court has the power under Rule 60(b) to vacate a final judgment, order or proceeding to promote the ends of justice in certain circumstances enumerated by the rule which include mistake, inadvertence, and newly discovered evidence. In the event relief is warranted for the discovery of new evidence, such a motion must be made within six months of the entry of the judgment. M.R.C.P. 60(b). Additionally, the Rule allows a decree to be vacated for “any other reason justifying relief from the judgment,” but the motion for relief must be made within a “reasonable time.” M.R.C.P. 60(b). The Fifth Circuit has interpreted the clause “any other reason” contained in the federal counterpart Federal Rule of Civil Procedure 60(b)(6) to our Mississippi Rule of Civil Procedure 60(b)(6) to “refer[ ] to any other reason than those contained in the five enumerated grounds on which a court may grant a Rule 60(b) motion.” Briney, 714 So.2d at 966 (quoting Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir.1995)). “However, Rule 60 is not a means for those who had procedural opportunity for remedy under other rules and failed, without cause, to pursue such avenues.” R.K., 946 So.2d at 776(¶ 35). A trial court, in its consideration of a mov-ant’s petition for relief under Rule 60(b), must make the following considerations before granting or denying such a motion:

(1) that final judgments should not be lightly disturbed; (2) that the Rule 60(b) motion is not to be used as a substitute for appeal; (3) that the rule should be liberally construed in order to achieve substantial justice; (4) whether the motion was made within a reasonable time; (5) [relevant only to default judgments]; (6) whether if the judgment was rendered after a trial on the merits the movant had a fair opportunity to present his claim or defense; (7) whether there are any intervening equities that would make it inequitable to grant relief; and (8) any other factors relevant to the justice of the judgment under attack.

R.K., 946 So.2d at 776(¶ 35).

¶ 8. The Georgia relatives submit to this Court that they should have been granted relief from the determination of heirs because the chancellor misapplied the controlling law of intestacy when determining that Jennifer was a resident of Mississippi at the time of her death and Jennifer’s mother and five half-blooded siblings were entitled to receive a portion of Jennifer’s property. The Texas relatives submit to the court that the Georgia relatives showed no basis for their significant delay in filing their motion for redetermination and that the Georgia relatives’ arguments also fail on the merits. In response to the Texas relatives’ argument that the petition for redetermination was brought outside of the applicable time limit, the Georgia relatives argue that the Mississippi Supreme Court has allowed a party three years to file a motion to set aside an order under Rule 60(b)(6) in the case of Briney, 714 So.2d 962.

¶ 9. In Briney, the supreme court provided the framework for determining when “a reasonable time” had elapsed. The court stated,

What constitutes reasonable time must of necessity depend upon the facts in each individual case. The Courts consider whether the party opposing the motion has been prejudiced by the delay in seeking relief and whether the moving party has some good reason for his failure to take appropriate action sooner.

Briney, 714 So.2d at 967(¶ 14) (quoting Heirs-at-Law & Beneficiaries of Gilbert v. Dresser Industries, Inc., 158 F.R.D. 89 (N.D.Miss.1993)). Briney argued that a legal error had occurred due to the trial court’s erroneous application of the controlling law, resulting in a substantial injustice. Once Briney gained standing to challenge the order of the circuit court when she was appointed the successor ad-ministratrix, she then acted quickly and moved to vacate the trial court order eleven days later. The supreme court found that because Briney had a valid argument on the merits of the case, the trial judge abused his discretion when he denied the Rule 60(b) motion, although it was filed nearly three years after the lower court’s order. At the time the “reasonableness clock” began ticking Briney had legal standing to challenge the circuit court’s order.

¶ 10. In the case sub judice, the Georgia relatives waited approximately seventeen months to file their petition for rede-termination of heirs after the chancery court issued its decree. The Georgia relatives rely upon the position that Jennifer was incorrectly deemed a Mississippi resident and that even if the residency was correctly decided, that the law of intestacy dictates that her mother, Dorothy Ray, is the only proper beneficiary of the wrongful death claim. We find that the Georgia relatives are in error on both of their assertions.

A. Residency

¶ 11. The chancery court determined that Jennifer was a resident of Mississippi in its April 28, 2004 decree. At the hearing on the matter, testimony was taken on the issue of whether Jennifer was a resident of Mississippi from her half-brother and administrator of her estate, Robert Dean Ray, and from Jennifer’s friend's mother, Anice Carpenter Powell, and several exhibits were introduced in the matter. Anice Powell testified regarding Jennifer’s intentions to remain in Sunflower County permanently. The testimony provided that Jennifer was a friend of Powell’s daughter and that she had recently moved to a rented room in the Powell’s home. Testimony and exhibits provided that by the time of Jennifer’s death, she had registered to vote in Sunflower County, was planning to getting a Mississippi driver’s license and planned to take the ACT in preparation to enroll in nursing school. Jennifer had applied for food stamps in Mississippi and the application was introduced into evidence. No contradictory testimony or exhibits were produced refuting the evidence before the chancery court. At the close of evidence, the court ruled from the bench that Jennifer’s legal residency was Sunflower County. Later, the ruling would be incorporated in a written decree.

¶ 12. In support of their position that the chancellor erred in finding that Jennifer was a resident of Mississippi, the Georgia relatives argue that newly discovered evidence regarding Jennifer’s residency came to light after the chancery court ruling. Newly discovered evidence is defined in Mississippi Rule of Civil Procedure 60(b) as “evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).” A Rule 60(b) motion based on newly discovered evidence must be brought within six months of the original decree or the motion is time barred. As stated supra, the Rule 60(b) motion based on newly discovered evidence was brought outside the required timetable and thus should be dismissed for this reason. However, procedural bar notwithstanding, the merits of the Georgia relatives’ claim fail as well. The Georgia relatives put forward assertions that the chancellor erred in her determination that Jennifer was a resident of Mississippi, namely, because Jennifer still retained a Georgia driver’s license, the accident report and death certificate listed Jennifer as a resident of Georgia, and because Jennifer would have been required to pay out-of-state tuition for the fall semester of 2003 at Mississippi Delta Community College. Each of the aforementioned reasons cited by the Georgia relatives in their motion seeking a determination that Jennifer was a Georgia resident at the time of her death was easily discoverable by the exercise of minimum due diligence and cannot qualify as “newly discoverable evidence.” After our review of the record, we cannot find that, based upon the evidence before the court, the chancellor erred as a matter of law in refusing to find that Jennifer was a resident of' Georgia at the time of her death.

B. Wrongful Death Beneficiaries

¶ 13. The Georgia relatives point this Court to several statutory provisions regarding descent and distribution in support of their position that only Jennifer’s mother, Dorothy Ray, is the proper beneficiary of the wrongful death claim settlement proceeds. The Georgia relatives further assert that only Jennifer’s mother is the proper beneficiary of the wrongful death claim because (1) Jennifer was an illegitimate child, (2) because the status of all five of Jennifer’s siblings was half-blood and (3) because Jennifer never had any contact with her half-siblings on her father’s side during her lifetime.

¶ 14. We find the Georgia relatives’ position regarding the laws of intestacy regarding descent and distribution is incorrect as a matter of law because the proper course of determining the wrongful death beneficiaries of Jennifer necessarily involves a reading of the wrongful death beneficiary statute. A wrongful death action is a separate action from the estate of the deceased, therefore, the beneficiaries of a wrongful death action for the death of the decedent may differ from the heirs of the intestate’s estate. Our wrongful death statute reads in pertinent part:

Damages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his wife; damages for the injury and death of a mar-
ried woman shall be equally distributed to the husband and children, and if she has no children all shall go to the husband; and if the deceased has no husband or wife, the damages shall be equally distributed to the children; if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death.... There shall not be, in any case, a distinction between the kindred of the whole and half blood of equal degree.
The provisions of this section shall apply to ... the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15.

Miss.Code Ann. § 11-7-13 (Rev.2004) (emphasis added).

¶ 15. We recognize, though, that if Jennifer Ray was an illegitimate child, in order for her half-siblings on her father’s side to inherit, these half-siblings would have to establish their right to inherit as kindred of her deceased father, Floyd M. Ray, pursuant to Mississippi Code Annotated section 91-1-15. However, we can find no support, other than the Georgia relatives’ assertions, indicating that Jennifer was an illegitimate child. In fact, proof was offered to the contrary and introduced at the hearing regarding the heirship determination. The record contains a copy of a final decree of divorce that was introduced into evidence, during the hearing adjudicating Jennifer’s heirs-at-law, that indicates that Jennifer was born into the marriage of her parents. In the divorce decree, the Texas state court made a specific finding that Jennifer’s parents were married and then proceeded to dissolve the marriage. Based on the record before us, we can find no merit to the Georgia relatives’ argument that Jennifer was an illegitimate child, so as to preclude her father’s kindred from qualifying as wrongful death beneficiaries.

¶ 16. Next, we address the Georgia relatives’ argument concerning the status of Jennifer’s siblings as half-blood. The Georgia relatives point to Mississippi Code Annotated sections 91-1-3 (Rev. 2004) and 91-1-5 (Rev.2004) in support of their assertion that Jennifer’s full-blooded mother should benefit from the wrongful death suit to the exclusion of Jennifer’s half-blooded siblings because her mother is one degree of separation from Jennifer, whereas Jennifer’s half-siblings are of two degrees of separation. This statutory scheme provides that “kindred of the whole-blood, in equal degree, shall be preferred to the kindred of the half-blood in the same degree.” Miss.Code Ann. § 91-1-5. However, we find that the Georgia relatives’ reliance upon this section is misguided within the analysis of wrongful death beneficiaries, as sections 91-1-3 and 91-1-5 of the Mississippi Code Annotated “have been the controlling law in Mississippi concerning intestate succession and half-bloods since 1848.” Jones v. Stubbs, 434 So.2d 1362, 1364 (Miss.1983) (emphasis added). However, our legislature has created another statutory device that is controlling law concerning a wrongful death suit and half-bloods. Our wrongful death statute, embodied in Mississippi Code Annotated section 11-7-13, specifically provides that “there shall not be, in any case, a distinction between the kindred of the whole and half-blood of equal degree” and that “if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death.” A reading of the controlling statute makes clear that application of the wrongful death statute in this case provides that Jennifer’s wrongful death beneficiaries include all five of her half-siblings, as well as her mother. Furthermore, even if the Georgia relatives assertions that Jennifer’s half-siblings on her father’s side never had any contact with her, they are still statutorily entitled to their respective shares of Jennifer’s estate. See Estate of Yount v. McKnight, 845 So.2d 724(¶ 10) (Miss.Ct.App.2003) (ruling that the half-brother could share in the wrongful death settlement proceeds pursuant to the statutory entitlement of Mississippi Code Annotated section 11-7-13, even though the decedent had never known of the existence of that half-brother).

¶ 17. The finding that Jennifer’s residency was in Sunflower County, Mississippi was correctly determined. Thus, the chancellor properly retained jurisdiction over the determination of heirs. Additionally, we find that the chancellor did not err in holding that Jennifer’s wrongful death beneficiaries are her mother and five half-blooded siblings. Accordingly, we affirm the denial of the Georgia relatives’ petition for redetermination.

II. CONSOLIDATED APPEAL: WHETHER THE TEXAS RELATIVES ARE ENTITLED TO INTEREST AT THE RATE OF 8% PER ANNUM FROM DECEMBER 30, 2005, TO THE DATE OF FINAL ADJUDICATION IN THE APPELLATE COURT, TO BE CHARGED AGAINST AND DEDUCTED FROM PETITIONER’S SHARES OF THE WRONGFUL DEATH CLAIM?

¶ 18. On December 30, 2005, the chancery court denied the Georgia relatives’ Rule 60(b) motion, which sought re-determination of Jennifer’s residency and heirs. At this same time in the Circuit Court of Sunflower County, the Texas relatives had reached a settlement with at least one of the defendants in the wrongful death action; however, the Georgia relatives were unwilling to execute a release in the settlement and allow the funds inter-pled into an interest bearing account in the chancery court. The Texas relatives subsequently sought a ruling from the chancery court to be awarded legal interest to be taxed on the eventual proceeds of the wrongful death settlement in the circuit court action from December 30, 2005, to the date of final adjudication of the chancery court’s denial of the redetermination of heirs in this Court nun pro tunc. The chancery court denied the Texas relatives’ motion for an award of interest and the Texas relatives now appeal this matter, which has been consolidated with the case above.

¶ 19. The Texas relatives argue that the chancellor had the broad equitable authority to grant a judgment of interest to be taxed on the amount of settlement proceeds that have remained undistributable since the Georgia relatives were denied their petition for redetermination of heirs and reconsideration of Jennifer’s residency. Additionally, the Texas relatives assert that pursuant to Mississippi Rule of Appellate Procedure 37, the interest judgment is warranted because our affirmance of the denial of the Georgia relatives’ Rule 60(b) motion is tantamount to affirming a money judgment.

¶ 20. Mississippi Rule of Appellate Procedure 37 provides this Court with the authority to enter a judgment of interest if we affirm judgment for money in a civil case. However, this case is not one affirming a money judgment, but rather we are affirming a chancellor’s determination of a Rule 60(b) motion challenging the finding of a decedent’s residency and an adjudication of heirship. Had the chanc,el-lor granted the Texas’ relatives’ motion for interest to be taxed against the Georgia relatives’ shares, his ruling would have been premature. At this point in the circuit court wrongful death claim litigation, the cause of action against the defendants had not yet been dismissed pursuant to a settlement. There were no available, tangible settlement funds to be deposited into the decedent’s estate or into the chancery court interpleader fund. Only after the funds are deposited into the chancery court can the chancellor then consider taxing the interest against the shares of the Georgia relatives. We cannot find that the chancellor erred in denying the Texas relatives’ motion for interest in the chancery court action because the issue of his denial of the Georgia relatives’ motion was still outstanding on appeal in this Court, and affirm accordingly.

¶ 21. THE JUDGMENTS OF THE CHANCERY COURT OF SUNFLOWER COUNTY ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DOROTHY RAY AND RICHARD GREGORY RAY.

KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS, AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN PART AND DISSENTS IN PART.

      . Dorothy Ray and Richard Gregory Ray are residents of the state of Georgia. For the sake of clarity within the opinion, the appellants, Dorothy Ray and Richard Gregory Ray, will be referred as the “Georgia relatives.’’

      . Robert Dean Ray, Floyd Malcolm Ray, II and David Glen Ray are residents of the state of Texas. The appellees will hereinafter be referred to collectively as the "Texas relatives” for the purpose of our discussion.


author: IRVING, J.,

text:
    Derrick PETERSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01436-COA.
    Court of Appeals of Mississippi.
    Aug. 14, 2007.
    Derrick Peterson, pro se.
    Office of the Attorney General by Deirdre McCrory.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   IRVING, J.,

for the Court.

¶ 1. Derrick Peterson pleaded guilty in the Circuit Court of Sunflower County to uttering a forgery in the amount of $281 and was sentenced to eight years in the custody of the Mississippi Department of Corrections. On July 6, 2006, Peterson filed a petition to vacate his sentence, claiming that his sentence is illegal. The trial court denied Peterson’s request for relief. Aggrieved, Peterson appeals and asserts that the trial court erred in failing to sentence him pursuant to the current version of Mississippi Code Annotated section 97-21-33 (Rev.2006).

¶ 2. Finding no error, we affirm.

DISCUSSION AND ANALYSIS OF THE ISSUE

¶ 3. “When reviewing a lower court’s decision to deny a petition for post conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Lambert v. State, 941 So.2d 804, 807(¶ 14) (Miss.2006) (citing Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)). Peterson contends that he should have been sentenced to “[six] months in the county jail, or $1,000.00 fine or both” pursuant to the version of section 97-21-33 in effect at the time of his sentencing. We disagree.

¶ 4. Mississippi Code Annotated section 99-19-33 (Rev.2000) provides in part:

If any statute shall provide a punishment of the same character, but of milder type, for an offense which was a crime under pre-existing law, then such milder punishment may be imposed by the court but no conviction, otherwise valid, shall be set aside and new trial granted merely because of an error of the court in fixing punishment.

¶ 5. The Mississippi Supreme Court held in Daniels v. State, 742 So.2d 1140, 1145(¶ 17) (Miss.1999) that “when a statute is amended before sentencing and provides for a lesser penalty, the lesser penalty must be imposed.” Additionally, in Lampley v. State, 308 So.2d 87, 90 (Miss.1975), the Mississippi Supreme Court held that, “[section 99-19-33] gives the trial judge the right to sentence one convicted of [a] crime after the law has been changed so as to permit a milder sentence before the conviction has become final....”

¶6. Peterson’s conviction became final ten days after December 1, 2003, the date on which he was sentenced. The amended version of section 97-21-33 became effective July 1, 2003. 2003 Miss. Laws, Chapter 499, § 6. Therefore, Peterson was entitled to be sentenced under the amended version of section 97-21-33, inasmuch as it was amended before his conviction became final. However, as will be discussed later in this opinion, the sentence that Peterson received was allowable under the amended version of section 97-21-33. Thus, despite Peterson’s contentions to the contrary, his sentence is legal.

¶ 7. Peterson was indicted in June 2002, when section 97-21-33 read as follows:

Persons convicted of forgery shall be punished by imprisonment in the Penitentiary for a term of not less than two (2) years nor more than fifteen (15) years, provided, however, that when the amount of value involved is less than one hundred dollars ($100.00) in lieu of the punishment above provided for, the person convicted may be punished by imprisonment in the county jail for a term of not more than twelve (12) months, within the discretion of the court.

The current version of section 97-21-33, which was 'changed to its present form July 1, 2003, provides:

Persons convicted of forgery shall be punished by imprisonment in the Penitentiary for a term of not less than two (2) years nor more than ten (10) years, or by a fine of not more than Ten Thousand Dollars ($10,000.00), or both; provided, however, that when the amount of value involved is less than Five Hundred Dollars ($500.00) in lieu of the punishment above provided for, the person convicted may be punished by imprisonment in the county jail for a term of not more than six (6) months, or by a fine of not more than One Thousand Dollars ($1,000.00), or both, within the discretion of the court.

(emphasis added).

¶ 8. In denying Peterson’s motion, the trial judge pointed out that:

Mr. Peterson’s sentence is legal under Miss.Code Ann. § 97-21-33 as amended, because the decision to punish the person convicted of forgery when the value is less than five hundred dollars ($500.00) by imprisonment in the county jail, or by fine is within the discretion of the judge and the use of the term may allows [sic] the judge to sentence the person to a term of not less [than] two (2) years nor more than ten (10) years.

We agree with the findings of the trial judge. Therefore, we find no merit to this issue.

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

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


text:
    Mark SYKES, Appellant v. Christopher EPPS, Commissioner and Mississippi Department of Corrections, Appellees.
    No. 2006-CP-01149-COA.
    Court of Appeals of Mississippi.
    Aug. 14, 2007.
    Mark Sykes, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellees.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   IRVING, J.,

for the Court.

¶ 1. Mark Sykes appeals from a judgment of the Circuit Court of Sunflower County which affirmed a decision of the Mississippi Department of Corrections (MDOC), finding that Sykes was ineligible for parole.

¶ 2. We find no error; therefore, we affirm the decision of the trial court.

FACTS

¶ 3. On October 1, 2001, Sykes was convicted of armed robbery in the Circuit Court of Amite County, Mississippi, and was sentenced to thirty years in the custody of the MDOC. During his imprisonment, Sykes requested administrative relief from the MDOC concerning his parole eligibility and earned time allowance. The MDOC responded and informed Sykes that he was not eligible for parole, and would not be eligible for meritorious earned time and trusty time until after he had served ten years of his thirty-year sentence.

¶ 4. Sykes filed a civil complaint against the MDOC and its Commissioner, Christopher Epps. In his complaint, Sykes alleges that the MDOC denied him due process of law by failing to provide him with a parole eligibility date and by refusing to give him earned time allowance.

¶ 5. On May 25, 2006, the MDOC filed a motion to dismiss, arguing that Sykes was ineligible for parole, pursuant to Mississippi Code Annotated section 47-7-3(l)(d)(ii) (Supp.2006). On June 9, 2006, the circuit court dismissed Sykes’s petition, finding that the MDOC had correctly determined that Sykes’s armed robbery conviction prevents him from being eligible for parole. It is from this decision that Sykes appeals.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. This issue presents a question of law, which this Court reviews de novo. DeLoach v. State, 722 So.2d 512, 518(¶ 12) (Miss.1998) (citing Rose v. State, 586 So.2d 746, 751 (Miss.1991)). Sykes claims that Mississippi Code Annotated section 47 — 7—3(1)(d)(ii) should not apply to his case to deprive him of parole or earned time, because it was not amended until 2004. Finding Sykes’s contention incorrect, we disagree. The circuit court properly found Sykes ineligible for parole as section 47 — 7—3(1)(d)(ii) applies to Sykes’s ease because he was convicted after October 1,1994.

¶ 7. We note that the response that Sykes received from the MDOC officials informing him that he would be eligible for meritorious earned time and trusty time after serving ten years of his sentence was incorrect. This information would have been correct had Sykes been convicted under section 47 — 7—3(1)(d)(i) (Supp.2006); however this section is clearly inapplicable because Sykes was convicted of armed robbery after September 30, 1994. Further, section 47-5-139(l)(e) (Rev.2004) provides that “[a]n inmate shall not be eligible for the earned time allowance if: The inmate has not served the mandatory time required for parole eligibility for a conviction of robbery or attempted robbery with a deadly weapon.” Therefore, because Sykes must serve his entire sentence, his argument that he is entitled to earned time lacks merit. In Thomas v. State, 881 So.2d 912, 916(¶ 11) (Miss.Ct.App.2004), this Court held that “[Section 47-5-189] indeed forecloses armed robbers convicted after October 1, 1994, from parole eligibility.” Thus, the MDOC correctly points out that “since an offender serving a sentence for an armed robbery committed on or after October 1, 1994 can never serve the mandatory time required for parole eligibility, he is not eligible to accrue earned time credits.”

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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

      . The information regarding Sykes's eligibility for meritorious time and trusty status is incorrect, as Sykes is not eligible for either. We defer further discussion of this issue until later in this opinion.

      . Section 47-7-3(l)(d)(ii) provides in part:

        No person shall be eligible for parole who shall, on or after October 1, 1994, be convicted of robbery ... through the display of a firearm.... The provisions of this sub-paragraph (d)(ii) shall also apply to any person who shall commit robbery ... on or after October 1, 1994, through the display of a deadly weapon;
      (emphasis added).

      . Sykes also raises two issues in his reply brief; however, those issues are procedurally barred, as they were not raised in the trial court. Johnson v. State, 508 So.2d 1126, 1127 (Miss.1987).

      .Section 47-7-3(d)(i) provides in part;
      No person shall be eligible for parole who shall, on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm until he shall have served ten (10) years if sentenced to a term or terms of more than ten (10) years or if sentenced for the term of the natural life of such person. If such person is sentenced to a term or terms of ten (10) years or less, then such person shall not be eligible for parole. The provisions of this paragraph (d) shall also apply to any person who shall commit robbery ... on or after July 1, 1982, through the display of a deadly weapon. This subparagraph (d)(i) shall not apply to persons convicted after September 30, 1994 ....
      (emphasis added).