author: LEE, P.J.,

text:
    Oliver David CHISOLM, Jr., Oliver David Chisolm, III, Carolyn Elizabeth Chisolm and Kayla Louisa Chisolm, Appellants v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION, Appellee. Linda Pugh, Appellant v. Mississippi Department of Transportation, Appellee.
    Nos. 2003-CA-02526-COA, 2004-CA-00440-COA.
    Court of Appeals of Mississippi.
    Aug. 16, 2005.
    Rehearing Denied Jan. 24, 2006.

      David M. Sessums, attorney for appellants.
    G. Kenner Ellis, Greenville, attorney for appellee.
    Before LEE, P.J., MYERS and BARNES, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. The night of April 11, 1999, Priscilla Chisolm drove down Highway 61 South in Sharkey County, Mississippi, accompanied by Linda Pugh. At that time, Great River Stone Company (Great River) was under contract with the Mississippi Department of Transportation to replace a bridge with an underground box culvert. According to Pugh, as the women approached the construction area, Pugh heard a “bump” and then heard Chisolm scream, “I’ve got it.” The right front wheel of the vehicle left the shoulder of the roadway, and as Chi-solm attempted to correct the vehicle, the vehicle began a counterclockwise spin. The vehicle flipped, ejecting Chisolm from the driver’s seat. Pugh, who was not thrown from the vehicle, testified that she heard Chisolm screaming for help in the darkness. Chisolm did not survive long after the accident, and while Pugh survived, she suffered severe, permanent disabling injuries.

¶ 2. The day after the accident, members of the Pugh family visited the accident scene and found a twelve to eighteen inch bolt lying next to the road. The bolt matched an indentation in the road indicating that the bolt lay partially on the road. According to Pugh, the bolt was found in the area where she recalled hearing the bump, prior to the vehicle spinning out of control.

¶ 3. In October of 1999, Chisolm’s heirs filed suit against MDOT and Great River. That month Pugh also filed suit against MDOT and Great River. Both suits alleged that MDOT and Great River were negligent in placing traffic control barrels, failing to provide warning lights, warning signs, barricades, and guardrails, and numerous other allegations of negligence. On November 19, 1999, MDOT moved to consolidate the Pugh and Chisolm cases, however the cases were not consolidated at the trial level. On December 18, 2000, MDOT moved for summary judgment in the Chisolm case, to which the Chisolm heirs filed a timely response. On March 28, 2002, the trial court granted MDOT’s motion, finding that Great River was an independent contractor and that MDOT was entitled to sovereign immunity under Mississippi Code Annotated Section 11-46-9(p)(v) and (w)(Rev.2002). It is from this ruling that Chisolm’s heirs now appeal.

¶ 4. On February 20, 2002, MDOT moved for summary judgment against Pugh. Pugh responded to the motion, and incorporated by reference the response which was filed by the Chisolm heirs in their response to MDOT’s motion for summary judgment. Additionally, on August 5, 2002, Pugh filed a supplemental response to her original response to MDOT’s motion for summary judgment. On May 8, 2003, the trial court granted MDOT’s motion for summary judgment. On May 19, 2003, the trial court granted Pugh permission to seek an interlocutory appeal; however, the Supreme Court denied the petition on February 25, 2004. Pugh filed a motion for judgment under Rule 54 of the Mississippi Rules of Civil Procedure, and the trial court granted the motion on February 26, 2004. Pugh appeals to this Court, and the Pugh case and the Chisolm case have now been consolidated.

¶ 5. On appeal, Chisolm’s heirs and Pugh argue that the trial court erred in granting MDOT’s motion for summary judgment, which found that Great River was an independent contractor solely responsible for the construction, maintenance and signage at the accident scene and the MDOT was entitled to sovereign immunity under the MTCA. Finding that summary judgment was premature as to Section ll-46-9(v), we affirm the summary judgment in part and reverse and remand in part.

STANDARD OF REVIEW

¶ 6. “This Court reviews errors of law, which include the proper application of the Mississippi Tort Claims Act, de novo.” Fairley v. George County, 800 So.2d 1159, 1162 (¶ 6) (Miss.2001). For a summary judgment motion to be granted there must exist no genuine issues of material fact and the moving party must be entitled to judgment as a matter of law. M.R.C.P. 56(c). This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Leflore County v. Givens, 754 So.2d 1223, 1225 (¶ 2) (Miss.2000). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Id. Otherwise, the motion should be denied. Id. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. Id. Furthermore, the burden of demonstrating that no genuine issue of fact exists is on the moving party, and the non-movant is given the benefit of the doubt. Id.

¶ 7. At this juncture, it is important to note that the cases sub judice were consolidated on appeal by order of the Mississippi Supreme Court. Plaintiffs’ counsel supplemented their response to MDOT’s motion for summary judgment in the Pugh case, whereas no such supplementation was included in the response to the motion for summary judgment in Chi-solm’s heirs’ case. This supplementation included actual excerpts of deposition testimony which were included in the record. If such excerpts were included in the response to the motion for summary judgment in the Chisolm case, they are not present in the record before this Court. At best, there exists a limited amount of case law addressing the effect an appeal-level consolidation has on the record presented to this Court; however, our supreme court has previously found that when two cases are consolidated and the two records are incorporated, “the facts, argument and the law apply equally to the two cases.” City of New Albany v. Ray, 417 So.2d 550, 553 (Miss.1982). Thus, we review the record in its entirety as consolidated as we conduct our de novo review of the trial court’s grant of summary judgment.

ANALYSIS

I. DID THE TRIAL COURT ERR IN GRANTING SUMMARY JUDGMENT, RULING THAT THE GREAT RIVER STONE CO. WAS AN INDEPENDENT CONTRACTOR?

¶8. The Mississippi Torts Claim Act (MTCA) was enacted in 1993 to create a limited waiver of sovereign immunity of the state and its political subdivisions. University of Mississippi Medical Center v. Robinson, 876 So.2d 337, 339 (¶ 7) (Miss.2004).

¶ 9. The MTCA provides, in pertinent part, as follows:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care;
(w) Arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice[.]

Miss.Code Ann. Section ll-46-9(l)(v)(w) (Rev.2002).

¶ 10. We agree with MDOT’s assertion that summary judgment was correct regarding sub-section (w). There is nothing in the record which implies that a third party removed signage from the construction area. In a response to a motion for summary judgment, unsubstantiated assertions are not sufficient to create a question of fact. See Watson v. Johnson, 848 So.2d 873, 878 (¶ 18) (Miss.Ct.App.2002). Thus we agree that summary judgment on this issue was proper.

¶ 11. Under the plain language of section (v), MDOT and its employees shall not be liable for any claim resulting from a dangerous condition on the State’s property if (1) that condition was not caused by the negligence or wrongful conduct of the employee or (2) MDOT lacked notice and an adequate opportunity to warn or protect against the dangerous condition.

¶ 12. MDOT argues, and the trial court agreed, that Great River was an independent contractor responsible for providing signs, barrels and other materials warning motorists of the construction site. There is no question that Great River was not an employee of MDOT, and this question is not contested by the parties on appeal. Furthermore, as used in the MTCA, the term “employee” “shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision^]” Miss.Code Ann. Section 11 — 46—1(f) (Rev.2002).

¶ 13. The contract between MDOT and Great River incorporated the “Mississippi Standard Specifications for Road and Bridge Construction” as part of the contract. Section 104.01 specifically provided that “the Contractor shall furnish all labor, materials, equipment, supplies, transportation, supervision, methods and procedures necessary to complete the work in- accordance with the plans, specifications and terms of the contract.” Regarding warning devices, Section 107.10 provided as follows:

The Contractor shall provide, erect and maintain all necessary barricades, lights, danger signals, signs and other traffic control devices; shall provide qualified flaggers where necessary to direct the traffic; and shall take all necessary precautions for the protection of the work and safety of the public. Highways or parts of the work closed to through traffic shall be protected by effective barricades. Suitable warning signs shall be provided to properly control and direct traffic.

By contract, MDOT would have an inspector authorized to inspect Great ; River’s work and the work site; however, the contract clearly limited the authority of the inspector, to wit: “The inspector will not be authorized to alter or waive the provisions of the contract, issue instructions contrary to the plans and specifications, or act as foreman for the contractor.” Mississippi Standard Specifications for Road and Bridge Construction Section 105.10.

¶ 14. Despite this language in the contract, Chisolm’s heirs and Pugh dedicate the majority of their brief to discussions of the Manual on Uniform Traffic Control Devices (MUTCD) and MDOT’s alleged noncompliance therewith, arguing that they will be entitled to a claim of negligence per se at a trial of this matter because of the “numerous clear violations of the mandatory provisions of the MUTCD set forth infra and § 63-3-305 Miss[.] Code Ann[.] (1972, as amended).” Appellants cite numerous Mississippi cases which discuss the MUTCD; however, appellants have not yet directed this Court to any case indicating that the guidelines of the MUTCD are, indeed, mandatory and not advisory. Additionally, U.S. 61 has been designated as a state highway and is under the jurisdiction of the Mississippi Transportation Commission for construction and maintenance. Mississippi Code Ann. Section 65-3-3 (Rev.2001). As of the date of this opinion, Mississippi has not adopted the MUTCD; thus, we do not agree with appellants’ unsubstantiated assertion that in this instance the MUTCD standards are mandatory and not advisory.

¶ 15. Our supreme court has previously held that “the relevant MUTCD provisions may properly be considered by a jury as evidence of negligence, albeit not as conclusive evidence thereof.” Jones v. Panola County, 725 So.2d 774, 778 (¶14) (Miss.1998).

¶ 16. The supreme court reviewed this issue in Donaldson v. Covington County, 846 So.2d 219 (Miss.2003). Donaldson was injured as a result of an automobile accident at a curve in a road maintained by Covington County. After a bench trial, the circuit judge entered a judgment for the county, finding that the county exercised ordinary care in performing its duty to warn motorists of the curve. On appeal, Donaldson argued that the MUTCD should be enforced as the minimum standard of care in the placement of signs. The supreme court disagreed, declining to extend its prior rulings which had previously established that while the MUTCD may be considered as evidence of negligence, it is nonconclusive proof of the standard of care. Id. at 223 (¶ 15). Quoting the MUTCD, our high court opined:

The manual states that it “describes the application of control devices, but shall not be the legal requirement for the installation.” Manual of Uniform Traffic Control Devices § 1A.09 (Millennium Ed. with Revision No. 1 changes Dec. 28, 2001). The “decision to use a particular device at a particular location should be made on the basis of either an engineering study or the application of engineering judgement.” Id. The manual should not be considered a substitute for engineering judgment. Id.

Id. at 224 (¶ 20).

¶ 17. Chisolm and Pugh point this Court to no authority supporting their contention that alleged violations of the MUTCD constitute negligence per se. Furthermore, it is clear that in Mississippi a verdict favoring the plaintiff based solely on the MUTCD guidelines would be improper. Id. at 223 (¶ 15) (citing Jones, 725 So.2d at 778). Chisolm’s heirs’ and Pugh’s assertions that they are entitled to a claim of negligence per se are erroneous: while the MUTCD may be considered as evidence of negligence, it is not conclusive proof of the standard of care. Id. at 223 (¶ 15).

¶ 18. We agree that Great River was hired by MDOT as an independent contractor, and we agree that under the language of the contract Great River bore responsibility for the signage at the construction site; however, under the MTCA, MDOT could still be liable under the narrow exceptions of Sections ll-46-9(l)(p) and (v). The MTCA provides immunity for governmental entities for injuries arising from a plan or design for construction or improvements to public property as follows:

including but not limited to ... highways, roads, streets, bridges ... where such plan or design has been approved in advance of the construction or improvement by the legislative body or governing authority of a governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval, and where such plan or design is in conformity with engineering or design standards in effect at the time of preparation of the plan or designf.]

Miss.Code Ann. Section 11^46-9(l)(p) (Rev.2002). Under the plain language of the MTCA, MDOT could be held liable for injury resulting from a dangerous condition on the property if (1) MDOT had notice of the dangerous condition and (2) MDOT had adequate opportunity to protect or warn against the dangerous condition. Miss.Code Ann. Section 11 — 46— 9(l)(v).

¶ 19. Wes Stafford, an MDOT employee, was the resident engineer for the project site at the time the accident occurred. Stafford testified that MDOT developed the traffic control plan for the project site. Harry Gilliand, who was president of Great River at the time of the construction and accident, testified in his deposition that MDOT provided the minimum signage for the construction site, as well as the traffic control plan. Gilliand indicated that when his company bid for the job, MDOT gave Great River a copy of the traffic control plan. Gilliand further testified that Great River bore the contractual responsibility to ensure that the signs and other markers were installed in conformity with MDOT’s traffic control plan.

¶ 20. Stafford testified that the shoulder area surrounding the culvert was approximately two feet at the time of the accident. Stafford further testified that although he could not recall the industry standard for shoulders applicable during 1999, he would estimate that the shoulder should have been approximately six feet. Gilliand took notes of his inspection of the construction site, and his notes taken on April 8, 1999, indicate that the pavement striping by the culvert was cracked and the pavement of the southbound lane of Highway 61 had dropped in elevation. The notes also indicate that no work was performed from March 22, 1999, until April 12,1999.

¶ 21. George Germain was a technician with MDOT during 1999, and he routinely inspected the construction site, made notations of his observations, and recommended action based upon his observations. Germain requested that Great River add lights and barrels to the construction area; however, Germain’s notes from March 1999 to April 7, 1999, do not reflect that the requested barrels and lights were added. Additionally, Stafford testified that the construction site complied with the traffic control plan when he toured the site on April 14,1999.

¶ 22. The MUTCD, section 6C-7 states “[djuring hours of darkness a flashing warning light should be placed on drums used singly and steady-burn warning lights should be placed on drums used in a series for traffic channelization.” MUTCD 1988 Ed.

¶ 23. After an extensive review of the record before this Court, we find that summary judgment was premature to the extent that MDOT had notice that a dangerous condition existed at the construction site. It is clear that an MDOT representative made frequent visits to the construction site, and it is clear that at least on one occasion, MDOT requested that Great River install additional warning devices. Additionally, Stafford, the MDOT engineer, testified that at the time of the accident, the shoulder surrounding the culvert was only two feet, whereas in his opinion the shoulder should have been at least six feet. Clearly there are sufficient questions of fact regarding MDOT’s notice of such hazards and MDOT’s ability to rectify or warn against the hazards.

¶ 24. While we agree that there remains a question of fact under section (v), we do not agree that summary judgment was incorrect as far as section (p). Wes Stafford signed an affidavit attesting that the signage and warning devices were in conformity with the MUTCD. Stafford further testified that the plan or design used for the project was “in conformity with accepted engineering or design standards in effect at the time of the preparation of the plan or design.”

¶25. These assertions contrast with Pugh’s interrogatory responses which designated Lieutenant David Beard of the Vicksburg Police Department as an expert witness in the fields of accident reconstruction and causation. Lt. Beard was expected to testify that from his review of the depositions, the accident scene, and the MUTCD, the signage and road markings directing approaching drivers were incorrect and improper.

¶ 26. Although Stafford’s deposition and Pugh’s interrogatory responses appear to conflict, we do not agree that Beard’s projected testimony is sufficient to create a question of fact as to whether the traffic control plan as approved failed to meet the accepted engineering or design standards in effect at the time the plan was prepared; such a showing would be necessary under the plain language of Section 11-46-9(l)(p). Beard’s projected testimony does not discuss the traffic control plan, and it certainly does not contradict MDOT’s assertion that, at the time it was approved, the plan conformed to accepted engineering standards.

¶27. While we agree that there are clearly issues of fact for the jury as far as MDOT’s notice of a dangerous condition on the property and MDOT’s opportunity to warn or protect against the condition, we find that summary judgment was appropriate regarding the traffic control plan and the unsupported allegations that an unidentified third party altered the signage at the construction site. Accordingly, the judgment of the trial court is affirmed in part and reversed and remanded in part.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF SHARKEY COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE TO BE DIVIDED EQUALLY BETWEEN THE APPELLANTS AND THE APPELLEE.

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

      . After this ruling the Chisolm heirs reached a settlement with Great River.

      . The order granting summary judgment in the Pugh case is not contained in the record.


source: Caselaw Access Project

author: BRIDGES, J., GRIFFIS, J., BARNES, J.,

license: Public Domain

text:
    Deborah CHAMPLUVIER a/k/a Deborah Marie Champluvier, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KP-02581-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2005.
    Rehearing Denied March 21, 2006.

      Deborah Champluvier, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., BRIDGES and GRIFFIS, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. On November 4, 2003, a DeSoto County jury entered a verdict finding Deborah Champluvier guilty on two counts of embezzlement. The trial court sentenced Champluvier to serve five years for both counts to and to serve both concurrently with four and a half years suspended from each. Champluvier appeals this verdict on fourteen issues.

STATEMENT OF THE FACTS

¶ 2. On September 18, 1998, Deborah Champluvier created Perfect Treasures Furniture, L.L.C. in Horn Lake with L.L. Ross. No one ever found a written executed operating agreement for Perfect Treasures On March 22, 1999, Ross had a stroke and later died intestate leaving his half of the business to his heirs on March 25. The State alleged that Champluvier took $6,000 of the $6,202.07 out of the operating account March 23, the day after L.L.’s stroke. Champluvier claimed that the money was to play her back for a loan to the business.

¶ 3. Thomas Ross became administrator of his father’s estate including acting as the liquidating trustee of L.L.’s business interests. The Chancery Court of DeSoto County entered an agreed order granting judicial dissolution, preliminary injunction and other relief on June 11,1999, that kept a prior temporary restraining order in effect. The order found that Champluvier individually and as a member of Perfect Treasures disposed of numerous assets, inventory and proceeds from Perfect Treasures and, thus, could not carry on the business in conformity with the certificate of formation. The order also stated that Champluvier denied Ross access to the books, records, inventory, and premises to such a point as to constitute pervasive fraud and unfairness toward the membership interest of L.L. Ross.

¶ 4. Furthermore, the order found that Champluvier had misapplied and wasted the assets of Perfect Treasures after L.L.’s death as well as failed to pay the debts and creditors. The order required Champluvier to return all proceeds, cash, and/or checks, accounts, checkbooks, check registers, and/or other banking records or documents to Thomas Ross. Thomas testified that Champluvier never turned any funds over to him after this order that required her to do so. After this order, Champluvier withdrew the remaining $445 dollars from a Perfect Treasures’s bank account without turning it over to Thomas Ross even thought the order expressly said that, “Defendant is hereby restrained from disposing of any accounts, funds, assets, inventory and/or proceeds of Perfect Treasures.”

¶ 5. Thomas’s attorney during the estate process, Barry Bridgforth, testified that he never received documentation from Cham-pluvier to show where she loaned the company money as the order required him to. Bridgforth also testified that the check for $6000 had a date of March 22, on it but the corresponding ledger book the check came out of had the date March 23. At first Champluvier testified in her deposition that she took the money to purchase used furniture. She never provided information as to the seller of this used furniture. Bridgforth also testified that Champluvier said that part of the money was needed because the landlord would only take cash yet the ledger showed checks written out to the landlord that month. He also testified about the $445 dollar withdrawal from Perfect Treasure’s second account that Champluvier withdrew after the hearing granting the injunction. Bridgforth further testified that Champluvier never gave the money back or tried to give the money back as required by the order. She also filed for bankruptcy to prevent the estate from collecting from her.

¶ 6. Champluvier originally hired Randall' Pierce to represent her in this matter. However, she filed her own motions including motions that accused Pierce of forging her signature on documents and conspiring with the prosecution. She also admitted that Bill Cockrell helped her with her motions but later downplayed the extent that he helped her. Pierce moved to remove himself as counsel due to the allegations but Champluvier filed a motion for the trial court to deny this request. When asked how she could want an attorney who did the things she accused Pierce off she responded, “Well, I don’t know that he forged my signature. I mean I don’t know that ... Pm guessing.” She also felt that the employment contract between the two should require he remain her attorney.

¶ 7. The trial court also granted Cham-pluvier’s motion to proceed in forma pau-peris and appointed Jack R. Jones, III as counsel for her. However, Champluvier soon moved to have the court remove Jones as “ineffective counsel the same as no counsel” since he could not recite the entire Mississippi and United States Constitutions. When the court decided to appoint her new counsel, Clay Vanderburg, she objected to receiving new counsel and argued that Vanderburg could not serve as effective counsel after her five minute interview with him.

¶ 8. She later filed a motion to remove Vanderburg from the case as well that the trial court denied. The trial court urged her to use the assistance of the appointed counsel but noted that she had the right to represent herself if she chose to do so. The trial court retained Vanderburg to assist Champluvier if she chose to during the trial as her standby counsel.

¶ 9. Right before her trial began, Cham-pluvier accused two different witnesses of saying derogatory comments about her close enough for the jury to hear them. The trial judge listened to April Brown and Bobbie Yates describe things they saw or overheard from Thomas Ross or A.C. Leroy Easley. No one in the jury responded that they overheard Easley and the juror who met Ross at a cigarette break said they did not discuss the case. The juror said that all Ross said concerned that his father owned a Furniture Store and that he felt he could remain impartial about the case.

¶ 10. Champluvier called upon her daughter, April Brown, and the stores truck driver George Friday, who both testified that she purchase $4000 worth of used furniture at the time in question. Champluvier argued that she could not act as the agent or servant of the company and also be an owner or member. Further, she argued that she could not embezzle the money because she owned it. However, the jury convicted Champluvier on both counts of embezzlement.

¶ 11. The trial judge also caught her lying under oath at her sentence hearing when she described selling all the merchandise in the store for her attorney bill’s associated with the temporary restraining order. However, the temporary restraining order came after this sale to liquidate all the merchandise in the store. Cham-pluvier then filed her appeal with fourteen issues of error. The brief surpasses the fifty page limit for the body of briefs as given by M.R.A.P. 28(g) by topping out at seventy-five pages. Champluvier also made sure to include every possible person from the Governor of Mississippi to every member of the Mississippi Bar as “Interested Persons”.

ANALYSIS

Standards of Review

¶ 12. The Court conducts “a de novo review for determinations of legal questions. Findings of fact are given deferential treatment and are subject to the ‘manifest error/substantial evidence’ standard.” Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (¶ 5) (Miss.2002). “An appellate court reviews jurisdictional issues de novo by examining the facts set out in the pleadings and exhibits to determine the propriety of the proceedings.” American Cable Corp. v. Trilogy Communications, Inc., 754 So.2d 545, 549 (¶ 7) (Miss.Ct.App.2000). The standard of review for denial of a motion for mistrial is abuse of discretion since it falls in the discretion of the trial judge. Caston v. State, 823 So.2d 473, 492 (¶ 54) (Miss.2002). For the court to admit evidence “[t]he trial court’s discretion must be exercised within the guidelines of the Mississippi Rules of Evidence and this Court will reverse only when an abuse of discretion resulting in prejudice to the accused occurs.” Morris v. State, 887 So.2d 804, 806 (¶ 8) (Miss.Ct.App.2004) (citing Wash v. State, 790 So.2d 856, 858 (¶ 5) (Miss.Ct.App.2001)).

I.

Miss.Code Ann. 97-23-19 Only Applies to Corporations

¶ 13. Champluvier first contends that since Mississippi Code Annotated 97-23-19 states “any director, agent, clerk, servant, or officer of any incorporated company,” than the law only applies to corporations and not to limited liability companies. Champluvier wants this case to appear like Burroughs v. State, 406 So.2d 814, 815 (Miss.1981) where the indictment charged the defendant of embezzling fourteen black Angus cows that were in his possession by virtue of a trust agreement. Here the court found that a partner could not embezzle from the joint venture since they had a shared interest in the property.

¶ 14. The Court of Appeals also recently discussed this matter in Coleman v. State, 2004-KA-00346-COA, — So.2d - (Miss.Ct.App. Nov. 1, 2005) where in the Circuit Court of Leflore County convicted Coleman of embezzling funds from his church by using his position as a church deacon. The Court reversed the case arguing that a church did not fit the definition of an “incorporated company.”

¶ 15. However, a LLC differs from a joint venture or a non-profit unincorporated religious society. Perfect Treasures also had its own bank accounts and Federal Tax ID number and was registered with the Secretary of States Office. Mississippi Code Annotated § 79-29-701 states, “A limited liability company interest is personal property. A member has no interest in specific limited liability company property.” Thus, an LLC is treated like a corporation in that it acts as a separate individual and owns property as a separate individual. The city also granted a business license to Perfect Treasures and not to either Ross or Champluvier. Champlu-vier clearly converted funds that did not belong to her, but to Perfect Treasures.

¶ 16. Furthermore, a church acts more like an assembly of individual persons that while the LLC acts as a separate business entity, just as a corporation does. The two also both often issue stock or other forms to show ownership to establish profit sharing unlike a church. Members do not form churches with the intent to make money and split the profits. Both a corporation and a LLC act to insulate its members from liability by creating a separate legal entity distinct and separate from its members. A member of either can usually transfer his ownership interest.

¶ 17. This case clearly fits the intent of the statute to prevent someone from embezzling assets from a company that legally belongs to the company and not the individual. The statute acts to prevent someone “by virtue of his office, place, or employment” from “converting] to their own use.” Since the company is not a person, this statute serves as the way to prosecute someone from fraudulently taking money from the LLC where he gained the ability as one of its members. The statute clearly did not intend to outlaw converting funds from an incorporated company but legalize unauthorized conversion of funds from an LLC. This would create another advantage to LLCs beyond the tax benefits to its members since the members could also embezzle all of the assets away from LLC and its members without fear of retribution. We reject this argument.

II.

Champluvier Did Not Act as a Servant, Agent or Employee

¶ 18. Champluvier continues to argue as she did at trial that the owner of a LLC cannot also act as an agent or servant. Mississippi Code Annotated § 79-29-803 states, “every member is an agent of the limited liability company for the purpose of conducting its business and affairs.” Furthermore, Champluvier testified at trial that she worked in the furniture store and wrote checks on behalf of the store. In doing so she clearly acted as Perfect Treasures Furniture’s agent.

III.

The DeSoto Circuit Court Lacked Jurisdiction

¶ 19. Champluvier contends that the Northern District of Mississippi Bankruptcy Court had exclusive jurisdiction over her. Champluvier points out that the State of Mississippi never filed any criminal affidavits or any accusations accusing her of embezzlement in bankruptcy court. At trial she also attempted to argue that since the bankruptcy court heard her bankruptcy claim that this criminal charge should remain in federal bankruptcy court.

¶ 20. However Mississippi Constitution art. 6, § 156 clearly gives the state circuit courts jurisdiction over criminal matters by saying, “The circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court.” Bankruptcy is vested in another court of law but criminal actions clearly fall within the jurisdiction of the circuit court. 11 U.S.C.A. § 105 concerns the powers of the bankruptcy court and does not grant the ability to try criminal embezzlement eases. Furthermore, because federal bankruptcy proceedings occurred near the same time does not prevent the State from prosecuting crimes as seen in Blue v. State, 716 So.2d 567 (Miss.1998).

rv.

The DeSoto Circuit Court Lacked Subject Matter Jurisdiction

¶ 21. Perfect Treasures Furniture, LLC operated in Horn Lake in DeSoto County. Champluvier admittedly took the funds from Perfect Treasures in DeSoto County. The testimony of all the witnesses at trial clearly show that Champlu-vier’s charged offense occurred in the same county of the circuit court that presided over her trial. As noted above, the Mississippi Constitution art. 6, § 156 grants circuit courts the right to hear criminal cases.

¶22. Champluvier further argues that the chancery court had subject matter jurisdiction since it had jurisdiction over the dissolution of Perfect Treasures. Mississippi Constitution art. 6, § 159 grants the chancery court full jurisdiction over matters of equity, divorce and alimony, testamentary matters, minor’s affairs and lunacy. Criminal actions remain notably missing from this list. Champluvier argues that since the Mississippi Limited Liability Company Act does not have a criminal section then only chancery court can hear cases involving LLCs. However, Mississippi’s embezzlement statue 97-23-19 clearly resides in the criminal codes section. Simply put, the bankruptcy court had jurisdiction over the bankruptcy provisions while the Circuit Court of De-Soto County had jurisdiction over the criminal issues and the DeSoto County Chancery Court had jurisdiction over the estate and equity issues.

V.

Trial Court Denied Appellant’s Right to Confront Witnesses

¶ 23. Champluvier argues that the trial court denied her Sixth Amendment rights by failing to put the names of the witnesses from the grand jury hearing on the record. Champluvier also cites to Mississippi Constitution art. 3, § 26 to say that she had a right to confront her accusers at the grand jury stage. However this section does not grant that right although it grants the right to confront the witnesses at trial. “The right to confrontation of those testifying against a defendant, is a trial right,” and does not apply to grand jury proceedings. Addkison v. State, 608 So.2d 304, 312 (Miss.1992)(citing Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987)).

¶ 24. Champluvier also makes an issue that the indictment left the witness line blank as well as other nonsensical objections that she did not have an accuser since no one sat next to the district attorney at trial. Since the State of Mississippi acts as her accuser it cannot logically sit next to the district attorney. Also nothing in Mississippi Code Annotated § 13-7-1 et seq., the State Grand Jury Act, requires witnesses in the grand jury indictment. In fact the trial court granted Champluvier ample opportunity to cross examine the witnesses presented before her even to the point of allowing her to object because a witness did not answer a question right and giving her numerous pauses in the proceedings to look over her notes during cross examination of the two witnesses presented against her.

VI.

Trial Court Denied Equal Protection Without a Constitutional Court

¶25. Champluvier contends that she did not have official court reporters for the case and that the case lacked a constitutional judge. The Mississippi Supreme Court appointed Gray Evans to the case on the fourth day of August 2003 as allowed under Mississippi Code Annotated § 9-1-105. The trial judge was appointed to the case after the three circuit judges for DeSoto County recused themselves from the case. She further contends that Judge Gray Evans improperly tried the case because he failed to take the oath of office. Mississippi Constitution art. 6, § 155 gives the judicial oath of office and does not require filing the oath in the record of each case.

¶ 26. Furthermore, “It is well settled in this state that the acts of a de facto judge are valid, regardless of whether he was properly appointed or qualified or not .... [t]he appellant was not in position to challenge his right to hold office, the right to question his holding the office being for the state alone to raise in appropriate proceedings.” Nelson v. State, 626 So.2d 121, 125 (Miss.1993)(citing Upchurch v. City of Oxford, 196 Miss. 339, 345, 17 So.2d 204 (1944)); Bird v. State, 154 Miss. 493, 500, 122 So. 539 (1929).

¶ 27. Champluvier also cites to Article I, sections 1 and 2, which act to separate the powers that belong to each branch of government as authority on this issue and neither have relevance to her contention. Champluvier also contends that the court did not appoint “official court reporters.” This appears based on the fact that the record did not contain a copy of the court reporters oath. However, the trial transcripts give Michelle P. Haberstroh’s certificate as the Official Court Reporter for the Seventeenth Circuit Court District. She correctly signed and certified that, “the above is a true and correct transcript” at the end of each transcript.

¶28. The Court Reporters and Court Reporting Statutes, Mississippi Code Annotated § 9-13-1 et seq. does not require the reporter to file their oath in the record in every case but merely put into the minutes of the court. Also the court would not reverse on this issue regardless. “We did not overrule case law making it the responsibility of the criminal defendant/appellant to ensure that there is record for the appeal.” Jordan v. State 786 So.2d 987, 1006 (¶ 47) (Miss.2001). At trial she also objected to a deposition from her bankruptcy proceedings because the court reportedly failed to sign it but neither side admitted this deposition into evidence. Thus, the issue remains merit less.

VII.

Trial Court Allowed Witnesses and Jurors to Discuss the Case

¶ 29. Champluvier argues that the trial court erred by failing to grant a mistrial in the case. She alleges that jurors and witnesses and the witnesses amongst themselves discussed the case. The trial court also heard this motion during the trial and investigated the claim. The judge question these jurors, the witnesses, and Champluvier’s witnesses to the commingling. The judge ruled that jurors could remain impartial and would not let anything the jurors might have overheard influence their decision.

¶ 30. A trial court does not abuse its discretion in denying a motion for a mistrial solely based upon conversations between a third party and a juror, “unless the record discloses either that the actual case at trial was discussed or other facts that could support a finding of possible undue influence.” Collins v. State, 734 So.2d 247, 251 (¶ 15) (Miss.Ct.App.1999). The record does not show that the parties discussed the merits of the case or that they had any undue influence.

VIII.

Trial Court Should Have Ruled $6000 in Evidence Inadmissable

¶ 31. Champluvier contends that the trial court improperly admitted the check she made out to herself for $6000 on the company’s account into evidence. Her contention mainly stems from her previous contention that she could not be the agent and an owner member at the same time. As discussed in issue of error two, she clearly served as both a member of the company and an agent during the course of the furniture store.

¶ 32. This issue is also completely merit less since Champluvier first put a photocopy of the check into evidence herself. Also of note, when the State introduced the original check into evidence Champlu-vier failed to object. Thus the court properly admitted the check into evidence. “It is well settled law in Mississippi that failure to make a contemporaneous objection regarding the admission of evidence waives the argument for purposes of appeal.” O’Hara v. Robinson, 904 So.2d 1110, 1112 (¶ 10) (Miss.Ct.App.2004).

IX.

Trial Court should have ruled $115.61 in evidence inadmissable

¶ 33. Champluvier also contends that the trial court improperly admitted the BankcorpSouth withdrawal copy that showed where she withdrew $445.64 into evidence. Champluvier objected after the judge admitted the copy into evidence and did not articulate the reason for her objection. The copy clearly follows the requirements for relevancy under the Mississippi Rules of Evidence 401 since the copy shows the withdrawal of funds that brought about the charges against Cham-pluvier.

¶ 34. Rule 902(9) allows the self authentication of documents relating to the extent provided by general commercial law including bank-checks and other negotiable instruments for the payment of money. Furthermore, the district attorney also properly presented the document through someone with knowledge of Perfect Treasures bank accounts. Rule 1001(4) also allows a photocopy of the original bank withdrawal so that the presented copy was acceptable. Accordingly, this issue also lacks merit.

X.

Court Erred in Failing to Grant Motion To Squash Indictment with Supplemental Facts

¶ 35. Champluvier actually presented this argument in a pretrial motion and has failed to add any significant facts now. Champluvier contends that the trial court denied her equal protection of the law. The contention centers around her previous arguments about whether Mississippi Code Annotated § 97-23-19 only applies to corporations and whether a two year statute of limitations of limitations applies.

¶ 36. Point of error one discusses and refutes Champluvier’s first contention involving Mississippi Code Annotated § 97-23-19. The applicable statute of limitations resides in Mississippi Code Annotated § 99-1-5. The statute specifically removes embezzlement from the general two year statute of limitations for criminal actions. Since embezzlement is clearly a crime Champluvier’s argument that a civil statute of limitations is clearly wrong.

XI.

Appellant received Ineffective Assistance of Counsel

¶ 37. Champluvier next contends that she did not receive effective assistance of counsel as guaranteed by the Sixth Amendment. Champluvier made this decision on her own and did not allow either of her two different court appointed attorneys the opportunity to represent her. In fact, the second court appointed attorney attend the trial as standby counsel and worked with Champluvier to assist her in jury selection and prepared her jury instructions. Instead of ineffective counsel, Vanderburg proved to be patient counsel since Champluvier referred to him to the jury as her, “ineffective counsel, same as no counsel,” throughout the trial. “Though the right to counsel is absolute, the right to counsel of choice is not absolute.” Atterberry v. State, 667 So.2d 622, 630 (Miss.1995).

¶ 38. Furthermore, ineffective assistance of counsel is a decision for the appellate court to decide and not the defendant. The trial court even presented Champluvier the opportunity to present her reasons that her appointed counsels were ineffective prior to the trial. Her arguments stemmed around the two appointed counsels inability to quote from memory the United States and Mississippi Constitutions and in the case of one attorney the fact that he had only won a few criminal cases as appointed counsel. “There is nothing more that the trial court could have done — the court had no right to insist on [the defendant’s having counsel after he had refused it.” Taylor v. State, 812 So.2d 1056, 1060 (¶ 18) (Miss.Ct.App.2001). In Taylor the defendant also went through numerous counsel changes. The trial judge told the defendant he could hire any attorney he wanted but kept an appointed counsel to serve as standby counsel for him as he proceeded pro se. Here the trial court also told Champluvier that it would hold her to the same standard as an attorney and the difficulty that presents if she could not find an acceptable attorney.

¶ 39. Champluvier also moved the court to remove Vandenberg as her counsel again after the trial and moved the court, “To Dismiss the Motion for Judgment Notwithstanding the Verdict that was filed by this Defendants Ineffective Counsel the same as No Counsel Attorney David Clay Vanderburg.” So as Vanderburg attempted to assist Champluvier by filing one of the basic motions to protect her defenses she clearly acted contrary but within her rights asking the judge to dismiss a motion that Vanderburg filed asking the judge to reconsider the verdict against her. The court merely did as she asked and dismissed Vanderburg from the case leaving her to act purely pro se and without standby counsel.

¶ 40. Champluvier now contends that she did not receive effective assistance of counsel since her court appointed attorney did not appear at the sentencing hearing. The trial judge excused him because of the defendant’s attitude and demeanor towards him during the trial since Champlu-vier would obviously not let him effectively help her.

¶ 41. This right may not be used to thwart the progress of a trial. Ladnier v. State, 273 So.2d 169, 173 (Miss.1973). This argument fails to meet the Strickland standard regardless since Champluvier would not let Vanderburg represent her, as evident from her jury trial. Thus, she lacks the showing of prejudice required to meet this standard.

XII.

Trial Court Erred in Instructing Proper Law to Jury

¶ 42. Champluvier contends that the judge improperly instructed the jury because he included the words “without authority” in two of the jury instructions. The judge replaced the words in the “wil-fully, unlawfully, and feloniously” from the indictment with “without authority.” However, “synonymous phrases or interchangeable words may be used in a jury instruction and the jury still be properly instructed.” Lancaster v. State, 472 So.2d 363, 367 (Miss.1985).

¶ 43. Champluvier further contends that the court erred by refraining from answering specific questions from the jury such as the legal definition of a LLC and to review testimony of witnesses. The responded to all the questions that they had all the law he could give them. “Our first recommendation is that the circuit judge determine whether it is necessary to give any further instruction. Unless it is necessary to give another instruction for clarity or to cover an omission, it is necessary that no further instruction be given.” Girbon v. State, 446 So.2d 570, 572 (Miss.1984). Reviewing the questions of the jury, the trial court correctly noted that none of the questions reached the level of necessity to allow further comment.

XIII.

An Incomplete Record Denies the Appellant Due Process and Equal Protection

¶ 44. Champluvier states that exhibits one, two, and three were missing from the circuit courts file. These exhibits came from pre-trial motions and were not used during the actual trial. Exhibit three was a sentencing order for Thomas Ross that the State used in a motion in limine to prevent Champluvier from discussing his prior convictions base on M.R.E. 609.

¶ 45. The State noted that Champluvier failed to claim how any missing part of the record could change the outcome of her case. Since Champluvier represented herself and has actual knowledge of the missing exhibits she “is required to show specific prejudice by the missing portions of the record in order to mandate reversal and remand for a new trial.” Watts v. State, 717 So.2d 314, 318 (¶ 10) (Miss.1998). In her rebuttal brief she argues that the exhibits one and two would show that she owned Perfect Treasures. Since the State stipulated as much at trial this fails to show any actual prejudice. She contends that exhibit three showed Thomas Ross’s prior convictions which the court entered a motion in limine against Champluvier discussing. Since she could not reference to the prior convictions she fails to show how not having this document prejudiced her. Accordingly this issue has no merit.

XIV.

Trial Court Erred in Sentencing

¶ 46. Champluvier contends that the trial court erred in sentencing her by ordering her to pay restitution after her bankruptcy trial discharged her of any debts owed to L.L. Ross’s estate. Mississippi Code Annotated § 99-37-1 et seq. grants judges the ability to order restitution in criminal cases. Section 99-37-3 specifically orders the court to look at the financial resources of the defendant, her ability to pay, and the rehabilitative effect of payment before ordering restitution. It does not prevent restitution from someone who went through bankruptcy proceedings. Finding this issue meritless, the trial court can require Champluvier to pay restitution despite her prior bankruptcy proceedings.

¶ 47. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF COUNT I EMBEZZLEMENT AND SENTENCE OF FIVE YEARS AND COUNT II EMBEZZLEMENT AND SENTENCE OF FIVE YEARS TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT I, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF RESTITUTION IN THE AMOUNT OF $3,222.82 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

GRIFFIS, J.,

Concurring:

¶ 48. I concur with the majority and write separately because I am of the opinion that this case is very similar to our recent decision in Coleman v. State, 2004-KA-00346-COA, — So.2d -(Miss.Ct. App. Nov. 1, 2005). Rather than restate my opinion which was rendered in Coleman, I simply state that the facts of this case further illustrate my point.

¶ 49. The proper interpretation of the term “incorporated company,” as used in Section 97-28-19, should include all entities that are created by statute under Title 79 of the Mississippi Code Annotated, which is titled “Corporations, Associations and Partnerships.” A limited liability company, or “L.L.C.,” is created under the Mississippi Limited Liability Company Act, which is codified at Mississippi Code Annotated Section 79-29-101 et seq. (Rev.2001). The Court’s opinion addresses my dissent in Coleman and attempts to distinguish the factual scenario that we are presented with here. I am of the opinion that the majority is correct; it simply takes a longer route to the same conclusion.

BRIDGES AND CHANDLER, JJ., JOIN THIS SEPARATE OPINION.

BARNES, J.,

Dissenting:

¶ 50. In this Court’s recent opinion in Coleman v. State, No.2004-KA-00346-COA, — So.2d -(Miss.Ct.App. Nov. 1, 2005), petition for rehearing filed Nov. 29, 2005, we held that the current version of Mississippi Code Annotated section 97-23-19 (Rev.2000) “includes corporations as the sole type of artificial persons who may be the object of embezzlement.” Id. at ¶ 12 (emphasis added). The majority in this case makes a hasty departure from the holding in Coleman in ignoring the clear language of section 97-23-19 and thus enlarging the ambit of the statute. Because I do not believe that the plain language of section 97-23-19 includes limited liability companies (LLCs) as entities which may be the object of embezzlement, I respectfully dissent.

¶ 51. In Coleman, a church deacon was prosecuted for embezzlement pursuant to section 97-23-19. In that case, we reversed and rendered Coleman’s conviction, holding that the State had failed to prove an essential element of the crime of embezzlement, namely, that Coleman embezzled funds belonging to an incorporated company. Id. at ¶¶ 12-17. In reaching this conclusion, this Court was “reminded that where the language used by the legislature in a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to the rules of statutory interpretation.” Id. at ¶ 12 (citing State v. Heard, 246 Miss. 774, 781, 151 So.2d 417, 420 (1963)). We found that the plain, unambiguous language of section 97-23-19 made it clear that Coleman could not be convicted under the statute, since the misappropriated funds were taken from an unincorporated church.

¶ 52. In the present case, we are again confronted with the task of determining whether section 97-23-19 allows an agent of an unincorporated body to be convicted of embezzlement. The majority holds that because LLCs and corporations share many similarities, the statute should apply to agents of LLCs as well as to agents of incorporations. Once again, the plain language of the statute does not permit this result. An LLC, by definition, is not an incorporated company, and regardless of the similarities between the two types of entities, the terms are not interchangeable. In fact, Mississippi Code Annotated section 79-29-104(l)(d) (Rev.2001) specifically prohibits an LLC from using the words “corporation” or “incorporated” in its name.

¶ 53. The legislature surely had some reason for employing such narrow and precise language in the embezzlement statute. The legislature, in its prerogative, certainly could have altered the statute to take into account more modern business entities, had it desired. The fact that the statute is not written more broadly should not be written off as legislative acquiescence, as the legislature had the opportunity to re-examine section 97-23-19 when it amended the statute in 2003. The legislature made no amendment broadening the business entities to which the statute applies, and we should not do so judicially.

¶ 54. Both the dissent in Coleman and the concurrence in the present case argue that any entity created under Title 79 of the Mississippi Code should be construed as an “incorporated company” for the purposes of section 97-23-19. However, because the language in section 97-23-19 is clear and precise, I believe that looking beyond the plain text of the statute is inappropriate. See Heard, 151 So.2d at 420 (stating that this Court will not resort to canons of statutory construction when the statute in question is clear and unambiguous).

¶ 55. The majority in this case reaches a result that directly contradicts our recent holding in Coleman. In my opinion, the outcomes simply cannot be harmonized; section 97-23-19 plainly does not allow agents of unincorporated entities to be subjected to prosecution for embezzlement. I respectfully dissent.

KING, C.J., AND IRVING, J., JOIN THIS SEPARATE WRITTEN OPINION.


author: MYERS, P. J.,

text:
    O’Neal BIGGS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01163-COA.
    Court of Appeals of Mississippi.
    Jan. 3, 2006.
    Rehearing Denied Aug. 8, 2006.

      Ross Parker Simons, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
   MYERS, P. J.,

for the Court.

¶ 1. O’Neal Biggs was convicted of felony shoplifting in the Circuit Court of Jackson County and sentenced to serve a five year term in the custody of the Mississippi Department of Corrections, day-to-day. He has appealed his conviction to this court presenting four issues upon which he seeks to have that conviction reversed. These issues are:

I.

A.THE TRIAL COURT ERRED IN DENYING MR. BIGGS’ MOTION IN LIMINE AND HIS REQUEST FOR A BIFURCATED TRIAL ON THE MISDEMEANOR SHOPLIFTING CONVICTIONS ALLEGED IN HIS INDICTMENT IN THAT:

1. THE INTRODUCTION INTO EVIDENCE OF MR. BIGGS’ ALLEGED PREVIOUS MISDEMEANOR SHOPLIFTING CONVICTIONS VIOLATES THE LONG-HELD PRINCIPLE THAT A DEFENDANT SHALL BE TRIED ONLY FOR ONE CHARGE AT ONE TIME, WITHOUT EXTRANEOUS CONVICTIONS CLOUDING THE MINDS OF JURORS ON THE CASE BEING TRIED.

2. THE CASE LAW THAT PERMITS THIS BY DECLARING THE PRIOR MISDEMEANORS TO BE ELEMENTS OF THE FELONY WHICH MUST BE PROVED BY THE STATE VIOLATES VARIOUS COURT RULES BY PERMITTING JURORS TO INFER GUILT FROM PAST BEHAVIOR, RATHER THAN ON FACTS PRESENTED AT THE INSTANT TRIAL.

B. ADDITIONALLY, THE FAILURE OF TRIAL COUNSEL TO OFFER A LIMITING INSTRUCTION TO BUFFER THE EVIDENTIARY DAMAGE BY THE PRESENTATION OF THE TWO MISDEMEANOR CONVICTIONS SHOULD HAVE BEEN CORRECTED BY THE TRIAL COURT ISSUING ITS OWN LIMITING INSTRUCTION SUA SPONTE.

C. FINALLY, THIS COURT SHOULD RECOGNIZE WEAVER’S PREJUDICIAL EFFECT OF ALLOWING THE STATE TO PROVE PRIOR ENHANCERS TO A JURY AT THE TIME SAME FACTS ARE BEING LITIGATED ON AN IDENTICAL ENHANCED CHARGE AND HOLD THAT JURY BE PERMITTED TO HEAR THE EVIDENCE OF PRIORS ONLY AFTER IT HAS RENDERED A DECISION ON THE INDICTMENT.

II. THE TRIAL COURT ERRED IN DENYING MR. BIGGS’ PROFFERED MISDEMEANOR SHOPLIFTING INSTRUCTION WAS SUPPORTED BY CREDIBLE EVIDENCE, AND WITHOUT IT MR. BIGGS WAS PREVENTED FROM PRESENTING TO THE JURY HIS THEORY OF THE CASE, I.E. THAT THE STATE HAD FAILED TO PROVE BEYOND A REASONABLE DOUBT THE EXISTENCE OF ONE OF THE TWO MISDEMEANOR SHOPLIFTING CONVICTIONS CHARGED IN THE INDICTMENT.

III. MR. BIGGS’ JURY WAS NOT SWORN WITH ANY TYPE OF PETIT JURORS’ OATH, AND HIS VERDICT IS THEREFORE VOID AS HAVING BEEN RETURNED IN VIOLATION OF THE MISSISSIPPI STATUTE REGARDING SAME AS WELL AS THE CONSTITUTION.

IV. THE STATE ADDUCED INSUFFICIENT EVIDENCE TO PROVE THAT THE MR. BIGGS WHO WAS THE SUBJECT OF THE MISDEMEANOR SHOPLIFTING ABSTRACTS WAS THE SAME MR. BIGGS WHO WAS ON TRIAL FOR FELONY SHOPLIFTING. THUS, THE TRIAL COURT ERRED IN DENYING MR. BIGGS’ MOTION FOR A DIRECTED VERDICT, HIS PROFFERED PEREMPTORY INSTRUCTION AND HIS POST-TRIAL REQUEST FOR A JNOV.

FACTS

¶ 2. O’Neal Biggs was convicted of felony shoplifting on April 15, 2004. He was indicted for shoplifting $18.59 worth of Duracell batteries from the Fast Lane Store in Pascagoula, Mississippi. Biggs also had been convicted of shoplifting in 1995 and 1999 which elevated the current charge from a misdemeanor to a felony under Mississippi Code Annotated § 97-23-93 (Rev.2000).

¶ 3. On September 17, 2001, a cashier, working at the Fast Lane Store, observed Biggs enter the store and behave in a suspicious manner. Biggs was observed standing near the battery display, when he suddenly exited the store with an obvious bulge in his clothing. While exiting the store Biggs had to grab the bulge to keep it from falling out of his clothes. Upon observing this activity the cashier contacted the police to report the incident. The police apprehended Biggs nearby and discovered batteries in Biggs’ possession. The batteries were identified as belonging to the Fast Lane through store price tags. Following the arrest, a determination was made that Biggs had been convicted on two previous occasions for shoplifting and was charged with felony shoplifting. At trial Biggs called no witnesses and put on no evidence. He was convicted of felony shoplifting and was sentenced to a term of five years in the custody of the Mississippi Department of Corrections to serve the term day-to-day.

ANALYSIS

I.

A. THE TRIAL COURT ERRED IN DENYING MR. BIGGS’ MOTION IN LIMINE AND HIS REQUEST FOR A BIFURCATED TRIAL ON THE MISDEMEANOR SHOPLIFTING CONVICTIONS ALLEGED IN HIS INDICTMENT IN THAT:

1. THE INTRODUCTION INTO EVIDENCE OF MR. BIGGS’ ALLEGED PREVIOUS MISDEMEANOR SHOPLIFTING CONVICTIONS VIOLATES THE LONG-HELD PRINCIPLE THAT A DEFENDANT SHALL BE TRIED ONLY FOR ONE CHARGE AT ONE TIME, WITHOUT EXTRANEOUS CONVICTIONS CLOUDING THE MINDS OF JURORS ON THE CASE BEING TRIED.

2. THE CASE LAW THAT PERMITS THIS BY DECLARING THE PRIOR MISDEMEANORS TO BE ELEMENTS OF THE FELONY WHICH MUST BE PROVED BY THE STATE VIOLATES VARIOUS COURT RULES BY PERMITTING JURORS TO INFER GUILT FROM PAST BEHAVIOR, RATHER THAN ON FACTS PRESENTED AT THE INSTANT TRIAL.

C. FINALLY, THIS COURT SHOULD RECOGNIZE WEAVER’S PREJUDICIAL EFFECT OF ALLOWING THE STATE TO PROVE PRIOR ENHANCERS TO A JURY AT THE TIME SAME FACTS ARE BEING LITIGATED ON AN IDENTICAL ENHANCED CHARGE AND HOLD THAT JURY BE PERMITTED TO HEAR THE EVIDENCE OF PRIORS ONLY AFTER IT HAS RENDERED A DECISION ON THE INDICTMENT.

STANDARD OF REVIEW

¶ 4. When reviewing motions in li-mine, “this Court applies the following standard:

[A] motion in limine ‘should be granted only when the trial court finds two factors are present: (1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.’ ”

McGilberry v. State, 797 So.2d 940, 942 (Miss.2001) (quoting Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss.1988)).

DISCUSSION

¶ 5. Biggs in his initial error concedes that he is aware that the supreme court has declared that the prior misdemeanor shoplifting convictions that elevate a third charge to a felony are elements of that charge and must be proven to the jury beyond a reasonable doubt. But, Biggs contends that these prior convictions should not be introduced in the guilt phase of the trial but, rather the elements of prior convictions should be decided in a bifurcated trial. We have previously addressed this argument and found it without merit in Bufkin v. State where we stated:

Bufkin contends on appeal that this was error and that the proper way to handle the matter of prior convictions was to bifurcate the trial with the trial court making the necessary determinations regarding the prior convictions as a part of the sentencing phase of the trial. She argues that permitting the jury to learn of her prior convictions hopelessly prejudiced her in the eyes of the jury and raised the possibility that the jury would convict upon reaching the conclusion that her prior conduct had demonstrated a propensity for such criminal activity. Bufkin claims that this constituted a violation of Mississippi Rule of Evidence 404(b), which prohibits the admission of evidence of prior bad acts for that purpose.
[W]e find no merit in the argument. Felony shoplifting is somewhat akin to felony driving under the influence in that both rely on multiple prior convictions for the same offending conduct in order to raise the level of offense from a misdemeanor to a felony. The Mississippi Supreme Court has plainly stated that, in the matter of DUI offenses, the prior convictions are elements of the crime that must be determined by the finder of fact beyond reasonable doubt as a part of the prosecution’s case in chief' Rigby v. State, 826 So.2d 694, 700(¶ 9) (Miss.2002).

Bufkin v. State, 867 So.2d 285, 288 (¶¶ 13 & 15) (Miss.Ct.App.2004). Agreeing with our previous decision, we find no merit to this error.

B. ADDITIONALLY, THE FAILURE OF TRIAL COUNSEL TO OFFER A LIMITING INSTRUCTION TO BUFFER THE EVIDENTIARY DAMAGE BY THE PRESENTATION OF THE TWO MISDEMEANOR CONVICTIONS SHOULD HAVE BEEN CORRECTED BY THE TRIAL COURT ISSUING ITS OWN LIMITING INSTRUCTION SUA SPONTE.

DISCUSSION

¶ 6. Biggs next contends that if the prior convictions are properly admitted as elements of felony shoplifting, he should have received a limiting instruction to the jury informing them for what purpose and to what extent the evidence of these prior convictions could be considered. He argues that these instructions are so important that the trial court should have given them sua sponte even when trial counsel did not request them. Our supreme court recently addressed this issue stating:

The burden should properly be upon the trial counsel to request a limiting instruction. This was our rule before Smith, in accord with Rule 105 of the Mississippi Rules of Evidence. The rule provides in pertinent part that “[w]hen evidence which is admissible ... for one purpose but not admissible ... for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” Miss. R. Evid. 105 (emphasis added). We struggled in Smith to require judges to issue the sua sponte ruling, since that would contradict “a rule so clear” as M.R.E. 105. 656 So.2d at 100. Today we abandon Smith’s requirement that a judge issue a sua sponte limiting instruction and return to the clear language of Rule 105. The rule clearly places the burden of requesting a Rule 404(b) limiting instruction upon counsel. The rule is controlling, and to the extent that Smith and its progeny contradict that plain language they are overruled.

Brown v. State, 890 So.2d 901, 913(¶ 36) (Miss.2004). Finding the supreme court’s decision controlling, this error is without merit.

II. THE TRIAL COURT ERRED IN DENYING MR. BIGGS’ PROFFERED MISDEMEANOR SHOPLIFTING INSTRUCTION WAS SUPPORTED BY CREDIBLE EVIDENCE, AND WITHOUT IT MR. BIGGS WAS PREVENTED FROM PRESENTING TO THE JURY HIS THEORY OF THE CASE, I.E. THAT THE STATE HAD FAILED TO PROVE BEYOND A REASONABLE DOUBT THE EXISTENCE OF ONE OF THE TWO MISDEMEANOR SHOPLIFTING CONVICTIONS CHARGED IN THE INDICTMENT.

IV. THE STATE ADDUCED INSUFFICIENT EVIDENCE TO PROVE THAT THE MR. BIGGS WHO WAS THE SUBJECT OF THE MISDEMEANOR SHOPLIFTING ABSTRACTS WAS THE SAME MR. BIGGS WHO WAS ON TRIAL FOR FELONY SHOPLIFTING. THUS, THE TRIAL COURT ERRED IN DENYING MR. BIGGS’ MOTION

STANDARD OF REVIEW

¶ 7. A lesser-included-offense instruction “should only be given after the trial court has carefully considered the evidence and is of the opinion that such an instruction is justified by the evidence.” Woodham v. State, 800 So.2d 1148 (¶ 24) (Miss.2001).

DISCUSSION

¶8. Biggs argues that the trial court committed reversible error by not instructing the jury on misdemeanor shoplifting. His contention is based on his belief that the State failed to prove the prior two convictions for shoplifting. These two convictions are elements of the felony charge that must be proven in order for misdemeanor shoplifting to be elevated to felony shoplifting. Biggs claims that trial counsel challenged the credibility of the two convictions by calling into question the clerk’s record keeping in 1995. Additionally, Biggs argues that the State did not prove that the O’Neal Biggs convicted in the two prior charges was the O’Neal Biggs on trial in the current case. Biggs argues that for these two reasons the trial court should have granted his request for a jury instruction on misdemeanor shoplifting.

¶ 9. During the trial the City Court Clerk of Pascagoula testified concerning Biggs’ two prior convictions that were on record in the clerk’s office. Abstracts of Biggs’s prior convictions were introduced into evidence by the State and trial counsel did not object to their introduction. The clerk testified that she was certain that the two prior convictions were accurate. Biggs’ identity was established by the arresting officer who determined that the O’Neal Biggs he arrested following the shoplifting of the Fast Lane and the O’Neal Biggs convicted of two prior shoplifting charges were one in the same.

¶ 10. A presumption of validity is attached to abstracts of convictions and will suffice to meet the burden of proof required by the statute. Ghoston v. State, 645 So.2d 936, 939 (Miss.1994). Once these convictions have been introduced the burden shifts to the defendant to rebut that presumption. Id. When this burden shifts the defendant must produce evidence that there is an irregularity in the abstract, a silent record will not suffice. Id.

¶ 11. Biggs' called no witnesses, presented no evidence and did not take the stand himself to contest the validity of the abstracts or the identity of the person represented in those abstracts. The only evidence presented by the trial counsel was an admission by the clerk that there was the possibility that the court record could be wrong. This does not meet the evidence necessary to rebut the validity of the prior convictions or the identity of Biggs as the person convicted previously and the person currently on trial.

¶ 12. We find this error without merit.

III. MR. BIGGS’ JURY WAS NOT SWORN WITH ANY TYPE OF PETIT JURORS’ OATH, AND HIS VERDICT IS THEREFORE VOID AS HAVING BEEN RETURNED IN VIOLATION OF THE MISSISSIPPI STATUTE REGARDING SAME AS WELL AS THE CONSTITUTION.

DISCUSSION

¶ 13. As his third assignment of error, Biggs contends that his conviction should be reversed due to there being no evidence in the record that the petit jury was sworn in as required by Mississippi Code Annotated § 13-5-71 (Rev.2002). Biggs argues that an unsworn jury is nothing more than mere spectators to the trial and is not aware of their solemn duty. The State counters this argument with trial counsel’s failure to object or any mention of the purported lack of administration of the oath during the trial. The State contends that due to trial counsel’s failures this issue is procedurally barred.

¶ 14. This Court has recently addressed this same issue in Acreman v. State, 907 So.2d 1005, 1007-8 (¶¶6-8)(Miss.Ct.App.2005).

“[The supreme court] has held that a party who fails to make a contemporaneous objection [to a matter] at trial must rely on plain error to raise the issue on appeal because it is otherwise procedurally barred.” Williams v. State, 794 So.2d 181, 187(¶ 23) (Miss.2001) (citing Foster v. State, 639 So.2d 1263, 1288-89 (Miss.1994)). “The plain error doctrine requires that there be an error and that the error must have resulted in a manifest miscarriage of justice.” Williams, 794 So.2d at 187(¶ 23) (citing Gray v. State, 549 So.2d 1316, 1321 (Miss.1989)). “Further, [the] Court applies the plain error rule only when it affects a defendant’s substantive/fundamental rights.” Williams, 794 So.2d at 187(¶23) (citing Grubb v. State, 584 So.2d 786, 789 (Miss.1991)).
In support of his argument that the failure to swear the jury was in violation of his fundamental rights and thus constitutes reversible error, [Biggs] relies on Miller v. State, 122 Miss. 19, 84 So. 161 (1920). In Miller, jurors were administered a preliminary oath for the purpose of ascertaining their qualifications to serve as jurors, but were not administered a subsequent oath until after the State and defense had concluded their case. Id. at 161. As a result, the supreme court reversed the defendant’s murder conviction and held that because the jury had not been properly sworn, the jurors were unable to legally hear and consider the testimony. Id. at 162-63.
[Biggs] reliance upon Miller, however, is misplaced, and more on point are the cases of Bell v. State, 360 So.2d 1206 (Miss.1978) and Young v. State, 425 So.2d 1022 (Miss.1983). In both cases, the supreme court failed to find reversible error even though the record failed to reflect that the jury had been sworn. The court found that a rebuttable presumption existed that the trial judges had properly performed their duties and that the respective defendants had a burden to overcome this presumption.

¶ 15. The record in this case does not indicate that the jury was not sworn. When we look to the final sentencing, it states that the jury was composed of twelve jurors “who were duly sworn, empaneled and accepted by the State and the Defendant....” There was no objection by trial counsel to the failure to administer the oath and there is no indication from the record that the oath was not administered. The sole mention of the oath in the record indicates that the oath was administered. Finding no evidence to contradict the oath being given, we find no merit to this error.

CONCLUSION

¶ 16. Finding no error, we affirm the judgement of the Circuit Court of Jackson County.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF FELONY SHOPLIFTING AND SENTENCE OF FIVE YEARS IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER AND FINE OF $1,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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