author: BARNES, J.,

text:
    Christopher James STRANGE, A minor By and Through his mother and next of kin Judith Leigh STRANGE, Appellant, v. ITAWAMBA COUNTY SCHOOL DISTRICT, Appellee.
    No. 2007-CA-01791-COA.
    Court of Appeals of Mississippi.
    April 28, 2009.

      Samuel Clinton Martin, Jackson, attorney for appellant.
    Mark R. Smith, Oxford, attorney for appellee.
    Before LEE, P.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Christopher James Strange (C.J.), a minor, by and through his mother Judith Strange (Strange), appeals the judgment of the Circuit Court of Itawamba County, which granted summary judgment in favor of the Itawamba County School District (District). Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On February 17, 2005, C.J. was seriously injured when he fell from the bed of a pickup truck while being transported by another student to ninth-grade football practice. The incident occurred on the school grounds of Itawamba Agricultural High School in Fulton, Mississippi, during school hours. Typically, student football players either walked or drove to practice on an access road that led from the school’s parking lot to the football complex. Students would try to find a ride because, as C.J. testified, “if we didn’t find a ride over there, we’d have to walk, and nobody really wanted to walk.” On this date, C.J. had left his sixth-period class and proceeded to the school parking lot to go to football practice. Two other football players and C.J. climbed into the back of another student’s pickup truck. As the truck was being driven down the access road, C.J. stood up and pretended to “surf’ in the bed of the truck. C.J. testified that as the truck went around the curve, he tried to walk from the tailgate area to the toolbox to sit down; he then fell out of the truck. He was immediately taken by ambulance to a local hospital. C.J. sustained several cuts and bruises, as well as a fractured skull.

¶ 3. On February 15, 2006, C.J. filed a complaint, by and through his mother, against the District, claiming personal injuries based on negligence, negligent supervision, and breach of fiduciary duty. On May 31, 2007, the District filed a motion for summary judgment and an itemization of undisputed facts. In its motion, the District claimed it was immune from suit under the discretionary function exemption of the Mississippi Torts Claim Act, pursuant to Mississippi Code Annotated section 11 — 46—9(l)(d) (Rev.2002).

¶ 4. On June 19, 2007, the District’s counsel wrote a letter to the circuit court judge requesting a ruling on its motion for summary judgment, as Strange’s time to file a response had expired. The District attached a draft order to its letter and sent a copy of this letter to Strange’s counsel. Upon receipt of this letter on June 21, 2007, Strange’s counsel requested an extension from the circuit court in order to file his response. However, the record does not indicate that one was granted. Later that day, Strange’s counsel learned that the circuit court judge had already signed the order granting summary judgment to the District. Therefore, Strange’s counsel prepared and faxed a response to the District’s motion for summary judgment and itemization of undisputed facts, which were filed in the circuit court on June 22, 2007. The circuit court’s order was stamped “filed” on June 27, 2007. On June 28, 2007, Strange filed a motion to set aside the judgment and for reconsideration that was entered by the circuit court on July 2, 2007. The District filed a response to this motion. On August 30, 2007, the circuit court entered an order denying Strange’s motion to reconsider the summary judgment. Strange timely appeals, raising two issues: whether the circuit court erred in (1) granting summary judgment and (2) not conducting a hearing or reviewing Strange’s evidence before granting summary judgment.

STANDARD OF REVIEW

¶ 5. This Court utilizes a de novo standard to review the trial court’s grant or denial of summary judgment. Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 228(¶ 11) (Miss.2005) (citing Satchfield v. R.R. Morrison & Son, Inc., 872 So.2d 661, 663(¶ 5) (Miss.2004)). Evidence will be analyzed in the light most favorable to the party opposing the motion. Id. “[T]he pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any,” properly before the trial court, will be reexamined by this Court in order to determine if there is any genuine issue of material fact. M.R.C.P. 56(c). Summary judgment is proper if the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id.

DISCUSSION OF THE ISSUES

1. Summary Judgment.

¶ 6. The foundation of the MTCA is sovereign immunity — that the State of Mississippi and its political subdivisions “are not now, have never been and shall not be liable, and are ... immune from suit” for wrongful or tortuous acts or omissions. Miss.Code Ann. § 11-46-3(1) (Rev.2002). However, the MTCA waives sovereign immunity for claims of money damages arising out of the torts of governmental entities and their employees while acting within the course and scope of their employment. Miss.Code Ann. § 11-46-5(1) (Rev.2002). A school district is considered a “political subdivision” and a “governmental entity” under the MTCA. Miss.Code Ann. § 11 — 46—1(g) and (i) (Rev. 2002). The MTCA provides certain circumstances are exempted from this waiver of immunity; thus, the governmental entity is not liable. See Miss.Code Ann. § 11-46-9 (Supp.2008). One such instance is if a governmental entity and its employees, acting within the course and scope of their employment, has a claim against them “[b]ased upon the exercise or perfonnance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee ... whether or not the discretion be abused.” Miss.Code Ann. § 11 — 46—9(l)(d) (Supp. 2008).

¶ 7. The circuit court granted the District’s motion for summary judgment, in which the District argued that its conduct was discretionary in nature and rendered the District immune from liability under the discretionary function exemption of the MTCA pursuant to section 11 — 46—9(l)(d). The Mississippi Supreme Court adopted in Jones v. Mississippi Department of Transportation, 744 So.2d 256, 260(¶ 11) (Miss.1999) (citing United States v. Gau-bert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)) the two-part “public policy function” test to determine if governmental conduct is discretionary. First, the court must determine whether the act involved “an element of choice or judgment.” Id. at 260(¶ 10) (citation omitted). If so, then the court must decide “whether the choice involved social, economic, or political policy.” Id. Governmental conduct is considered ministerial “if it is imposed by law and the performance of the duty is not dependent on the employee’s judgment.” Id. at 259-60(¶ 9) (citing Barrett v. Miller, 599 So.2d 559, 567 (Miss.1992)).

¶ 8. Strange argues that there is a genuine issue of material fact about whether the conduct of the football coach, under the discretionary function exception, involves social, economic, or political policy. Second, he argues there is a genuine issue of fact about whether or not the coach used ordinary care to minimize the risk of personal injury to the football players.

¶ 9. This Court must determine whether the District or its employees, in allowing students to ride in the back of a pickup truck, not just to football practice, but anywhere on school grounds, is a discretionary act. In order to make this determination, this Court must first ascertain whether the conduct involved an “element of choice or judgment.” While riding in the back of a pickup truck involves safety issues, neither party has cited, nor have we been able to find, any statutory prohibition of this act in Mississippi.

¶ 10. We find Dotts v. Pat Harrison Waterway District, 933 So.2d 322, 326(¶ 10) (Miss.Ct.App.2006) analogous to the instant case. In Dotts, this Court upheld the trial court’s determination that the water district had discretion in making decisions regarding the operation of its water park within the meaning of the MTCA and, thus, was immune, because Mississippi had no statutory requirements on this topic. Here, since there is no statutory duty for the District or its personnel to regulate or disallow this conduct, there is an element of choice by the District.

¶ 11. Interestingly, Strange does not present any argument in his brief addressing the first prong of the public policy function test; instead, he contends that “even if it is conceded that the actions of ... [the] football coach were discretionary,” there is a fact issue regarding the second prong of the test: whether the conduct involved a social, economic, or political policy. See Jones, 744 So.2d at 260(¶ 10). This second prong protects:

discretionary actions or decisions based on considerations of public policy. The purpose is to “prevent judicial ‘second guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” The pertinent inquiry, then, is whether the decision “implicates the exercise of a policy judgment of a social, economic, or political nature.”

Dotts, 933 So.2d at 327(¶ 15) (internal citations omitted).

¶ 12. The question before us, therefore, is whether the District, through its employees, in either allowing students to ride in the back of a pickup truck on school grounds, or ignoring the fact that the students were riding on school grounds in this manner, impacted public policy. We agree with the circuit court that the District’s actions did impact public policy. This Court is mindful that “[ajpplication of the public policy prong of the discretionary function test does not require proof of the thought processes of pertinent decision makers. Rather, the focus is on the nature of the actions taken, and whether they are susceptible to policy analysis.” Dotts, 933 So.2d at 328(¶ 16) (internal citations omitted). “[Ojnly those functions which by nature are policy decisions, whether made at the operational or planning level, are protected.” Stewart ex rel. Womack v. City of Jackson, 804 So.2d 1041, 1047(¶ 11) (Miss.2002).

¶ 13. During the 2009 Regular Session of the Mississippi Legislature, two House bills were introduced that would have made it unlawful for individuals to ride in the back of a pickup truck or in areas where seat belts are not available. House Bill 393 would have made it unlawful for any person under the age of eighteen to ride in a pickup truck bed, and House Bill 1583 would have made it unlawful for any individual to do the same. Both bills died in committee. While this Court is not privy to the thought processes of the legislators on why they did not make this conduct illegal on the public roadways of Mississippi, we recognize that this is the type of social, economic, and political policy the courts are prevented from “second-guessing.” It is no less a policy decision when made by the District. Accordingly, the decision satisfies the second prong of the public policy function test as it involves a policy decision.

¶ 14. Strange cites the dissent from Harris v. McCray, 867 So.2d 188, 196(¶ 29) (Miss.2003) (McRae, P.J., dissenting) for the proposition that there is a “third step” in the determination of whether an act is discretionary — whether the act was conducted using ordinary care. However, the Mississippi Supreme Court did not adopt this position in its majority, nor is current case law in this area consistent with the dissent’s propositions. The Harris majority ultimately found the school immune from liability where a football player tragically succumbed to heatstroke during practice. Id. at 189(¶ 2), 193(¶ 19) (majority opinion). The Harris majority differentiated sections ll-46-9(l)(b) and (d), holding that ordinary care was not required in the latter, only the former, and the coach’s actions and duties in coaching his football team were a discretionary act. Id. at 189(¶ 4), 193(¶ 18).

¶ 15. Alternatively, the Harris dissent cites Jones for the proposition that all of the exemptions to liability under section 11^6-9 require a minimum standard of ordinary care. Id. at 196(¶ 29) (McRae, P.J., dissenting). Thus, Jones suggests even if a decision is found discretionary according to the public policy function test, because schools have a responsibility to provide a safe environment for its students, “ordinary care must have been used before a school can use the statutory shield of immunity.” Stewart, 804 So.2d at 1049(¶ 20) (quoting Pearl Pub. Sch. Dist. v. Groner, 784 So.2d 911, 915(¶ 14) (Miss.2001)).

¶ 16. However, further decisions of the supreme court have expressly rejected this proposition. In Collins v. Tallahatchie County, 876 So.2d 284, 289(¶ 16) (Miss.2004), the supreme court held that the discretionary duties in section 11-46-9(l)(d) do not contain a duty of ordinary care. Similarly, Collins also points out that section ll-46-9(l)(d) exempts governmental entities from liability for discretionary functions, “whether or not the discretion be abused.” Id. at 289(¶ 17) (quoting Miss.Code Ann. § ll-46-9(l)(d) (Rev. 2002)). Accordingly, Strange’s argument suggesting a third step to the public policy function test is without merit.

¶ 17. Strange goes on to make a slightly different argument regarding ordinary care based upon L.W. v. McComb Separate Municipal School District, 754 So.2d 1136, 1145(¶ 37) (Miss.1999): even if the District’s conduct is discretionary, “there is a ministerial aspect” because state and federal law place a duty of ordinary care on school personnel to minimize risk of personal injury and to provide a safe school environment. Strange asserts there is a genuine issue of material fact about whether the District used ordinary care in its execution or failure to execute Mississippi Code Annotated section 37-9-69 (Rev. 2007), which provides that school personnel must prevent disorderly conduct at school. Strange claims this statute implicates the MTCA’s exemption in section 11-46 — 9(l)(b), which addresses ministerial functions, rather than section 11-46-9(l)(d), which addresses discretionary acts. Specifically, section 11 — 46—9(l)(b) provides that the District would be exempt from liability if it exercised “ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute ... whether or not the statute ... be valid.”

¶ 18. Strange analogizes the facts of the instant case to L.W., where the supreme court found the school’s act was discretionary in nature, but because of the “ministerial aspects,” the school was not immune. L.W., 754 So.2d at 1145(¶37). In L.W., the supreme court found that the discretionary function exemption of 11-46-9(l)(d) did not apply where one student beat and sexually assaulted another student. Id. at 1137(¶ 3), 1142(¶ 27). A teacher saw and heard the aggressor-student threaten the victim-student and did nothing. Id. at 1137(112). The supreme court found section 37-9-69 applied and that school personnel could have and should have prevented the disorderly conduct at the school. Id. at 1142(¶ 25). This eliminated any discretionary function by the school; so the application of the statute made the decision “ministerial,” and the school was not immune. Id. at 1142(¶ 27).

¶ 19. The situation in L.W. is distinguishable from the instant case. In L.W., the student threatened an act in front of school personnel that would be considered “disorderly conduct” under section 37-9-69, and the teacher did nothing. Here, while there may be a fact issue regarding whether “surfing” (not just riding) in the back of a pickup truck could be considered “disorderly conduct” within the meaning of the statute, we find this analysis improper. First, there is no evidence that the school’s personnel knew students were committing the behavior at issue, as they did in L.W. and merely did nothing about it. If the District personnel had actually seen C.J. surfing in the back of a moving pickup and done nothing to stop it, there may have been a fact issue regarding whether they used ordinary care to prevent disorderly conduct under section 37-9-69. Second, C.J. contends he had quit “surfing” in the back of the truck and was walking from the tailgate to the toolbox as the driver rounded a curve. He then fell out of the truck and injured himself. Thus, the proximate cause of his injuries was not the conduct of surfing, but merely the riding in the back of a pickup truck, which cannot be considered “disorderly conduct” within the meaning of section 37-9-69.

¶ 20. Construing the evidence in the light most favorable to C.J., we find no genuine issue of material fact about whether the District is immune from suit under section 11 — 46—9(l)(d). Accordingly, the circuit court’s grant of summary judgment was proper.

2. Hearing on the Motion for Summary Judgment.

¶ 21. It is undisputed that no hearing was held on the District’s motion for summary judgment. Strange contends this was error.

¶ 22. Mississippi Rule of Civil Procedure Rule 78 provides that “[e]ach court shall establish procedures for the prompt dispatch of business.... [and] [t]o expedite its business, the court may make provisions by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition.” Accordingly, the First Circuit Court District of Mississippi has established Rule 4(f), ratified by the supreme court in May 2006, which states that “[a]ll motions shall be decided by the Court without a hearing or oral argument unless otherwise ordered by the Court on its own motion, or, in its discretion, upon written motion made by either counsel.” Therefore, the circuit court was following its own rule in not conducting a hearing on the motion for summary judgment. Furthermore, neither party moved for a hearing.

¶ 23. Moreover, the Mississippi Supreme Court has held that there is no explicit or implicit right to a hearing under Rule 56(c). Croke v. Southgate Sewer Dist., 857 So.2d 774, 777-78(¶10) (Miss.2003). In Adams v. Cinemark USA, Inc., 831 So.2d 1156, 1163(¶ 26) (Miss.2002), the supreme court found that, due to the finality of summary judgments, the trial court erred in not granting a hearing on the motion; however, the error was deemed harmless because there was no unresolved issue of material fact. The Adams court explained, “Courts generally recognize the advisability of allowing oral argument on summary-judgment motions, but, even the Fifth Circuit Court of Appeals now agrees that the court has the power to order summary judgment without a hearing if it feels that sufficient information is available in the pleadings and the papers in support of and opposition to the motion so that a hearing would be of no utility.” Id. at 1165(¶ 30). In Adams, no reversible error was found in granting summary judgment without a hearing because it would have merely centered around legal arguments, since the factual arguments were undisputed. Id. at (¶¶ 30-31). We find a similar situation here. Any error by the circuit court in not having a hearing is harmless as our review of the record shows there are no genuine issues of material fact present.

¶ 24. Strange also contends that the circuit court erroneously granted the District’s motion for summary judgment without considering Strange’s response. A time fine of the pertinent procedural events shows that Strange was not timely in his response. The District filed its motion for summary judgment on May 31, 2007. Strange did not respond to the motion within the requisite ten-day time frame pursuant to Uniform Rule of Circuit and County Court 4.03(2); so the District filed a letter on June 21, 2007, requesting the circuit court to rule on its motion. The circuit court signed its order in favor of the District that same day, but the order was not filed until June 27, 2007. In the interim, Strange filed a motion for an extension of time on June 21, which was never ruled upon, and filed his response to the District’s motion and itemized facts on June 22, 2007.

¶ 25. The record does not indicate whether the circuit court judge took Strange’s untimely response into account in making its order. However, the order was not entered until six days after it was signed, and during this time Strange’s response was on file with the circuit court; so the judge certainly could have taken it into account. Since Strange’s response was untimely, the circuit court was not under any obligation to do so. The circuit court’s order denying Strange’s motion for reconsideration did state that the court reviewed all of the briefs by the parties. Further, this case’s de novo standard of review requires this Court to consider all evidence and pleadings contained in the record, and we have done so. Consequently, we find that this argument is without merit.

CONCLUSION

¶ 26. Based on the foregoing, the circuit court did not err in granting summary judgment in favor of the District. Furthermore, we find no reversible error regarding the lack of a hearing on the motion for summary judgment. Therefore, we affirm the circuit court’s judgment.

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

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

      . The record indicates this order was dated and stamped "processed” in the circuit court on June 21, 2007.

      . Mississippi Code Annotated section 63-2-1 (Supp.2008) requires every operator, front seat passenger and child under seven (7) years of age who is not required to be protected by a child passenger restrain device to wear a seal belt. Accordingly, it would appear to be a violation for a child under seven years old to ride in the back of a pickup truck pursuant to this statute. C.J., however, was not within this age range.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Jimmy Lee DANIELS a/k/a Jimmy Daniels, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-00127-COA.
    Court of Appeals of Mississippi.
    May 12, 2009.

      Leslie S. Lee, Jackson, Attorney for appellant.

      Office of the Attorney General by Lisa Lynn Blount, Attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On June 15, 2006, James Kenneth Cotton, a Mississippi Bureau of Narcotics (MBN) agent, received a tip that Jimmy Lee Daniels was selling cocaine from a red Jaguar at the Community Parks Apartments in McComb, Mississippi. Agent Cotton and another agent, Sheldon Jolliff, drove to the apartments and witnessed Daniels sitting in a red Jaguar. Agent Jolliff recognized Daniels from a pi’ior encounter. The agents drove around the block and parked behind Daniels. Daniels exited the car and began walking quickly toward the apartments. The agents did not see anyone else besides Daniels in or near Daniels’s car. The agents stopped Daniels and informed him that they had information alleging that he was selling drugs. Daniels agreed to talk to the agents, handed them his driver’s license, and gave them consent to search his car. Agent Jolliff testified that Daniels became more nervous after handing the agents his car keys.

¶ 2. Daniels then fled the scene. Agent Cotton chased him and Agent Jolliff stayed with the car. Agent Jolliff proceeded to search Daniels’s car, finding a brown bag on the driver’s seat which contained five smaller bags of a substance later identified as powder cocaine and rocks of crack cocaine. A set of digital scales was found under the driver’s seat. Daniels’s car was parked less than 1,500 feet from a playground. The car in question was registered to Daniels’s aunt, Janice Todd, who was unaware of the drug activity in her car. Agent Cotton failed to catch Daniels, but he was eventually arrested.

¶ 3. A jury in the Pike County Circuit Court convicted Daniels of possession of at least ten grams but less than thirty grams of cocaine within 1,500 feet of a playground. Daniels was sentenced, based on a sentence enhancement provision in Mississippi Code Annotated section 41-29-142 (Rev.2005), to thirty years, with sixteen years to serve in the custody of the Mississippi Department of Corrections, fourteen years suspended, five years of post-release supervision, and to pay a $10,000 fine. Daniels now appeals, asserting the following issues: (1) the trial court erred by failing to properly instruct the jury on the elements of constructive possession; (2) the trial court erred in sentencing him under the sentence enhancement provisions of section 41-29-142; (3) the trial court erred in failing to grant a directed verdict; (4) the verdict was against the overwhelming weight of the evidence; and (5) the trial court erred in failing to dismiss the indictment on the basis of double jeopardy. Finding no error in regard to issues 1, 3, 4, and 5, we affirm Daniels’s conviction. However, finding that the trial court erred in sentencing Daniels, we remand for re-sentencing.

DISCUSSION

I. INSTRUCTION ON THE ELEMENTS OF CONSTRUCTIVE POSSESSION

¶ 4. In his first issue on appeal, Daniels argues that the trial court did not properly instruct the jury on the elements of constructive possession. Daniels contends that instruction S-6 did not instruct the jury on an essential element of constructive possession. It is well-settled law that an appellate court does not review jury instructions in isolation; instead, we consider them as a whole to determine if the jury was properly instructed on the law. Milano v. State, 790 So.2d 179, 184(¶ 14) (Miss.2001). When read as a whole,- if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Phillipson v. State, 943 So.2d 670, 671(¶ 5) (Miss.2006). However, the record shows that Daniels failed to object to the instruction. “To preserve a jury instruction issue on appeal, the defendant must make a specific objection to the proposed instruction to allow the trial court to consider the issue.” Harris v. State, 861 So.2d 1003, 1013(1118) (Miss.2003) (citing Crawford v. State, 787 So.2d 1236, 1244-45(¶ 35) (Miss.2001)). We find that this issue is procedurally barred.

II. SENTENCE ENHANCEMENT

¶ 5. In his second issue on appeal, Daniels argues that the trial court incorrectly applied the sentence enhancement provision found in section 41-29-142. Section 41-29-142 doubles the statutory sentence for a violation of Mississippi Code Annotated section 41-29-139(a)(l) (Rev. 2005), the sale or possession with intent to sell a controlled substance, if the violation occurred within 1,500 feet of a park or school.

¶ 6. Although Daniels was indicted pursuant to section 41-29-139(a)(l), the jury found him guilty under section 41-29-139(c)(1)(D),’ possession of more than ten grams but less than thirty grams of cocaine. There is no sentence enhancement provision for crimes committed under this particular statute, regardless of if the crime occurred within 1,500 feet of a school or park. The State concedes that Daniels was improperly sentenced. We find that the trial court erred in sentencing Daniels under the enhancement provisions and remand for re-sentencing pursuant to the statute.

III. DIRECTED VERDICT

¶ 7. In his third issue on appeal, Daniels argues that the trial court erred in failing to grant a directed verdict. Daniels specifically alleges that the evidence was insufficient to support the verdict. A motion for a directed verdict challenges the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.’ ” Id. (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the crime existed, this Court will affirm the denial of a motion for a directed verdict. Id. If we find that reasonable, fair-minded jurors could have concluded that the defendant was guilty of the accused crime, the evidence will be deemed sufficient. Id.

¶ 8. To establish possession, “there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Hamm v. State, 735 So.2d 1025, 1028(¶ 11) (Miss.1999) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)). In the absence of actual physical possession, the State must show constructive possession. Williams v. State, 971 So.2d 581, 587(¶ 16) (Miss.2007). “Constructive possession is established by showing that the contraband was under the dominion and control of the defendant.” Id. (quoting Roberson v. State, 595 So.2d 1310, 1319 (Miss.1992)).

¶ 9. We find that there was sufficient evidence for reasonable, fair-minded jurors to conclude that Daniels was guilty of possession. Agent Cotton received a tip that Daniels was selling cocaine from a red Jaguar at the Community Parks Apartments. Upon arriving at the apartments, Agent Cotton and Agent Jolliff saw a man sitting alone in a red Jaguar. Agent Jolliff recognized the man as Daniels from a pri- or encounter. The agents testified that Daniels had the car keys and gave them consent to search the car. Daniels then fled the scene. Agent Jolliff found a brown paper bag containing five separate bags of cocaine on the driver’s seat and a set of digital scales under the driver’s seat.

¶ 10. Although Daniels testified that the car did not belong to him and that he had not been sitting in it, the jury clearly found the testimony of the two MBN agents more credible. The jury reasonably inferred that Daniels was sitting in a car with a bag of cocaine near his person. “The jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed.” Ford v. State, 737 So.2d 424, 425(¶ 8) (Miss.Ct.App.1999). We find that there was sufficient evidence to support the guilty verdict; thus, this issue is without merit.

IV. WEIGHT OF THE EVIDENCE

¶ 11. In his fourth issue on appeal, Daniels argues that the verdict was against the overwhelming weight of the evidence. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18). “[T]he evidence should be weighed in the light most favorable to the verdict.” Id.

¶ 12. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” Id. (quoting McQueen v. State, 423 So.2d 800, 803 (Miss.1982)). Rather, it means that this Court, sitting as the “thirteenth juror,” simply disagrees with the jury’s resolution of the conflicting testimony. Id.

¶ 13. Viewing the evidence in the light most favorable to the verdict, we find that the verdict was not against the overwhelming weight of the evidence. Testimony at trial presented a factual dispute for the jury’s resolution. The MBN agents testified that Daniels was seated in the car, and they found cocaine on the seat vacated by Daniels. The MBN agents testified as to Daniels’s demeanor as they moved to search his car. They stated that Daniels began acting nervous and then fled the scene. Daniels and another witness testified that Daniels was not sitting in the car, did not own the car, and had no knowledge of the cocaine. Although he was not the owner of the car, Daniels was the only occupant of the car and had the keys to the car. Weighing the evidence in the light most favorable to the verdict, we cannot find that allowing the verdict to stand would sanction an unconscionable injustice. This issue is without merit.

V. DOUBLE JEOPARDY

¶ 14. In his final issue on appeal, Daniels argues that the trial court erred in failing to dismiss the indictment on the basis of double jeopardy. In Daniels’s first trial, Agent Cotton testified that Daniels surrendered his driver’s license prior to running from the agents. The prosecution had failed to disclose this information to Daniels prior to trial. Daniels moved for a mistrial, and the trial court granted his motion. Daniels filed a motion to dismiss his indictment prior to his second trial. After a hearing on the matter, the trial court found no prosecutorial misconduct that would warrant a dismissal of the charge.

¶ 15. As Daniels requested the mistrial, he is generally barred from asserting a double jeopardy violation. Jenkins v. State, 759 So.2d 1229, 1234(¶ 17) (Miss.2000). However, the supreme court has stated the following:

In order to elevate an order granting a mistrial in a criminal case at the request of the defendant to one which could form the basis of a claim of double jeopardy, it must be shown not only that there was error, which is the common predicate to all such orders, but that such error was committed by the prosecution or by the court for the purpose of forcing the defendant to move for the mistrial.

Carter v. State, 402 So.2d 817, 821 (Miss.1981). In other words, “[wjithout proof of judicial error prejudicing the defendant, or ‘bad faith prosecutorial misconduct,’ double jeopardy does not arise.” Jenkins, 759 So.2d at 1234(.¶ 17) (internal citation omitted).

¶ 16. Daniels claims that the prosecution consciously failed to disclose this evidence to him prior to trial. The State admitted to having knowledge of the evidence prior to Agent Cotton’s testimony. During the motion hearing, the prosecutor stated that he learned of Daniels’s surrender of his driver’s license during a lunch recess at his first trial. The prosecutor stated that this occurred shortly before Agent Cotton’s testimony. The prosecutor said that he had not intended to use the information concerning the surrender of the driver’s license because Agent Jolliff had previously identified Daniels during his testimony. In ruling on the motion to dismiss, the trial court found that the prosecution had not deliberately provoked a mistrial, namely because the facts presented favored a guilty verdict. The trial court stated that “this is a case where the State simply inadvertently failed to disclose evidence which may or may not have even had a significant impact on this case.” Daniels has failed to show either judicial error prejudicing him or bad faith prosecu-torial misconduct. This issue is without merit.

1117. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF MORE THAN TEN GRAMS BUT LESS THAN THIRTY GRAMS OF COCAINE WITHIN 1,500 FEET OF A PLAYGROUND IS AFFIRMED. THE SENTENCE IS REVERSED, AND THIS CASE IS REMANDED FOR RE-SENTENCING CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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


text:
    G.B.W., Appellant, v. E.R.W., Appellee.
    No. 2007-CA-01967-COA.
    Court of Appeals of Mississippi.
    May 26, 2009.

      John R. Reeves, John Justin King, attorneys for appellant.
    Marty Craig Robertson, Leo J. Carmo-dy, Jr., Jackson, attorneys for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. G.B.W. (“Greg”) appeals the Hinds County Chancery Court’s grant of divorce on the ground of habitual cruel and inhuman treatment and denial of his claim for separate maintenance. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Greg and E.R.W. (“Emma”) were married in Georgia on June 17, 1995. No children were born of the marriage. Prior to the marriage, Greg worked as a computer systems engineer at Zenith Data. A week before their wedding, however, Greg was laid off. Greg worked at a sales job until the couple moved to Annapolis, Maryland in August 1996. Emma was employed as a customer service manager with U.S. Internetworking; Greg stayed at home trading stocks on the Internet. When Emma sold her home in Georgia, Greg used the $30,000 in proceeds, along with his contribution of approximately $20,000 from the sale of a car and boat, to invest in order to create a retirement “nest egg.” At one point, the couple had earned as much as $772,000 in their market account. Emma’s income covered all of the couple’s living expenses; Greg did not assist Emma with daily chores or living expenses. Greg continued to trade stocks for approximately five years. However, due to stock market problems in 2000, Greg lost all their earnings in the market account. The couple owed taxes for capital gains in 1999, totaling $140,000. Emma paid the taxes from her employment bonuses, stock market withdrawals, and $43,000 from a home equity loan. After the stock market crash, Greg started a marine electronic repair business, which was a sole proprietorship. However, there is no record of any income derived from this venture, except for testimony that Greg restored and sold a sailboat in 2000.

¶ 3. It was during this period of the marriage that Emma realized Greg was using marijuana, which he continued to do throughout their marriage. The marriage was also strained due to Emma’s desire for Greg to obtain steady employment. It was this issue that precipitated an argument between the couple while attending Emma’s family reunion in North Carolina. Greg became so angry that he took their car and returned to Maryland, leaving Emma in North Carolina without transportation and forcing her to rent a car to get home. Greg would also frequently be absent from the home, either visiting his family in Columbus, Mississippi or sailing on his boat.

¶ 4. The couple moved to Mississippi in 2001 when Emma accepted a position with a local company. Problems persisted within the marriage. In 2004, the couple attended joint and individual counseling at the Good Samaritan Center. According to the counselor, Emma was depressed, anxious, and fearful of Greg due to his possessiveness and jealousy. The main concerns were that Greg had demanded that Emma no longer associate with her long-time best friend and that Emma also wanted to have children, but Greg claimed that they had agreed not to have children.

¶ 5. Greg and Emma separated on August 30, 2005, with Greg moving to Columbus. The couple exchanged frequent phone calls for a couple of weeks, but Greg eventually asked Emma to quit calling him. In early November, while Emma was out of town on business, Greg came to the home to retrieve some personal items. Emma, in the meantime, had contacted an attorney to begin divorce proceedings. Emma changed the locks on November 23, 2005, based on her fear of what Greg would do once he was served with the no-fault divorce papers. That same evening, while Emma was sleeping at their home, Greg drove to the house arriving at midnight and let himself in the house through a window which he had unlocked during his visit earlier that month. When Emma tried to leave the house, Greg restrained her. As she tried to put her shoes on, the couple struggled, and Greg fell on top of Emma and put his fist to her throat, causing her to fear for her life. Emma sustained bruises in the altercation.

¶ 6. On December 5, 2005, both parties filed a joint complaint for divorce based on irreconcilable differences. Two days later, Greg came to the house to retrieve some of his belongings. When Emma arrived home later that evening, she found the house disheveled, belongings thrown around, and gasoline on some clothing in the center of the garage. Concerned for her safety, Emma immediately vacated the house until she could obtain a peace bond and restraining order. Following this incident, Greg followed Emma from work, contacted her co-workers, and exhibited generally threatening behavior. On January 10, 2006, Greg also sent an e-mail to her attorney containing explicit photographs of Emma performing a sexual act.

¶ 7. Greg withdrew his consent for a no-fault divorce and filed for separate maintenance on February 10, 2006. Emma counterclaimed for divorce on grounds of habitual cruel and inhuman treatment and habitual drug use. The trial was held in chancery court on May 22-23, 2007. At the time of trial, Emma was forty-one years old; Greg was forty-nine. Emma was awarded a divorce on October 2, 2007, based on the ground of habitual cruel and inhuman treatment, and the chancellor denied Greg’s request for separate maintenance. The chancellor based her decision on (1) Emma’s fear of Greg, (2) a letter that Greg wrote Emma stating that he was sorry for the pain and suffering he had caused her, (3) the incident between the couple which resulted in Greg’s slamming Emma against a wall while restraining her, (4) the incident where Greg apparently poured gasoline on clothes in their garage, and (5) Emma’s emotional and mental distress due to the lack of children, her demands at work, and the fact that she was the sole breadwinner. As the chancellor granted divorce on another ground, she did not address the issue of Greg’s habitual drug use.

STANDARD OF REVIEW

¶ 8. This Court has a limited standard of review of a chancellor’s decision in domestic relation matters, reversing only in cases where “the chancellor abused his or her discretion, was manifestly in error, or applied an erroneous legal standard.” Engel v. Engel, 920 So.2d 505, 508(¶ 10) (Miss.Ct.App.2006) (citation omitted). In the case of a divorce decree, facts will be viewed “in a light most favorable to the appellee.” Bodne v. King, 835 So.2d 52, 57(¶ 16) (Miss.2003) (citing Richard v. Richard, 711 So.2d 884, 888(¶13) (Miss.1998)).

I. Whether the chancellor erred in granting Emma a divorce on the ground of habitual cruel and inhuman treatment.

¶ 9. Greg argues that there was insufficient evidence to support the chancellor’s granting of a divorce on the ground of habitual cruel and inhuman treatment. In Moses v. Moses, 879 So.2d 1043, 1047(¶ 7) (Miss.Ct.App.2004), this Court stated:

In order to establish the basis for divorce on the ground of habitual cruel and inhuman treatment the claimant should produce evidence to prove conduct that: “either endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or in the alternative, be so unnatural and infamous as to make the marriage revolting to the offending spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.”

(Citations omitted). “Habitual cruel and inhuman treatment must be established by a preponderance of the evidence, rather than clear and convincing evidence.” Mitchell v. Mitchell, 823 So.2d 568, 570(¶ 8) (Miss.Ct.App.2002) (citation omitted). This Court has further stated that:

The chancellor must evaluate not only the conduct of the offending spouse, but also the impact of that conduct upon the other spouse. Bias v. Bias, 493 So.2d 342, 345 (Miss.1986). The negative impact upon the complaining spouse may be to their [sic] mental health, not just physical health. Rakestraw v. Rakes- traw, 717 So.2d 1284, 1288(¶ 11) (Miss. Ct.App.1998). Physical violence or threats of physical violence are not necessary to prove habitual cruel and inhuman treatment. Richard, 711 So.2d at 889(¶ 9). Acts, short of physical cruelty, “such as wilful failure to support, verbal abuse, neglect, and the like which, if taken alone will not constitute cruelty, but when taken together will manifest a course of conduct as a whole which may amount to cruelty.” Savell v. Savell, 240 So.2d 628, 629 (Miss.1970).

Id. at 571(¶ 9). “The party alleging cruel and inhuman treatment typically must corroborate the testimony.” Shavers v. Shavers, 982 So.2d 397, 403(¶ 35) (Miss.2008) (citation omitted).

¶ 10. The chancellor found that the November 23, 2005, and December 7, 2005, incidents had “rendered the relationship unsafe for Emma.” Greg reasons that the altercations could not be the bases of Emma’s claim as they did not occur until after she had notified him that he was being served with divorce papers. While we agree that Emma did state in her counterclaim for divorce that Greg’s “continued course of cruelty” caused their separation on August 30, 2005, this does not bar the consideration of any evidence of subsequent acts. A specific act is no longer required to be “the proximate cause of a separation before a divorce may be granted on grounds [sic] of habitual cruel and inhuman treatment.” Richard, 711 So.2d at 890(¶ 23). “It is, instead, habitual or continuous behavior over a period of time, close in proximity to the separation, or continuing after a separation occurs, that may satisfy the grounds for divorce.” Id. (emphasis added). In fact, “such conduct.... done so often, or continued so long, that its recurrence may be reasonably expected whenever occasion or opportunity presents itself.” Churchill v. Churchill, 467 So.2d 948, 951 (Miss.1985) (citation omitted). In addition to the incidents on November 23 and December 7, Emma also testified that Greg would throw things or hit objects near her which made her apprehensive of possible physical violence. This fear was realized on November 23, as recognized by the chancellor in her findings. Although Greg attempts to down-play the incidents in his testimony, we find that they are evidence of the ongoing psychological manipulation exerted by Greg. The testimony revealed that he crept into a window in the middle of the night when it became apparent Emma had locked him out. We have no doubt that this type of behavior was done to create fear in Emma. Greg even admitted at trial that he used a move he learned from his military training to hold Emma down and prevent her from leaving the house that night. She stated that when Greg was on top of her that night, with his fist at her throat, she felt like her life was in danger. We affirm the chancellor’s conclusions and findings of fact that the incidents “rendered the relationship unsafe for [Emma].”

¶ 11. Further, even without these two incidents, there may well have been sufficient evidence to support a finding of habitual cruel and inhuman treatment. The record reflects that Greg would regularly leave the marital home to travel to his family’s farm in Columbus, Mississippi or to go sailing on his boat. Emma stated: “I was isolated; I was lonely in our marriage.” Her father also testified that Greg “was remote ... was distant from us as possible, and he was silent.” Emma stated that she suffered from “massive stress headaches” early in the marriage due to the anxiety that she felt coming home, and she became fearful of any confrontation with Greg. Emma testified at trial:

I don’t like confrontation with [Greg] because he doesn’t fight fair. He gets in your face; he twists your words; he towers over you; he yells at you; he intimidates you; you know there’s going to be repercussions and retaliations for trying to stand up to him. It got to where I couldn’t even talk to him. I— my brain would freeze because of the fear that I had. I didn’t know what was coming next. It was — you’d walk on eggshells with him; you never knew what was going to set him off.

Greg admitted that Emma’s behavior did not “please” him, mainly due to her attention to her job and not to him. He would threaten divorce when she failed to comply with his demands. As someone who had already been through a divorce, Emma was greatly disturbed by these threats. Greg stated in a letter to Emma written early in their marriage that:

You and I both know that you by nature want to over achieve and please people and make them like you. This seems to be very important to you and yet if I am to believe this to be so ... then I have to ask myself if pleasing me were important to you then why is it that I’m not pleased? Could it be that only I’m getting 2-3 hours of your day ... and the job gets 12-14 hours of you[r] day and most of your mind share (even on the weekends).

(Emphasis added). Greg clearly played “mind games” with Emma, using her desire to please people in order to make her nervous and fearful. Her testimony explained that any lack of quality time in the marriage was due to the fact that she was the sole breadwinner and was also in charge of taking care of household duties when she came home. Emma stated:

I was to provide the income; I was to cook; I was to clean; I was to meet his sexual expectations. And I tried to voice for him what I need[ed] from him, and the confrontations, the retaliations, the isolation, the abandonment, they were there in 1997. We tried to work through them, and they just got worse.

This testimony is corroborated in one of Greg’s letters to Emma, dated November 22, 2004, in which he stated:

I realize now and accept that for years you have felt that I don’t really love you but only want you around to meet my needs.... By making you feel this way I have caused you to loose [sic] respect for me as well as diminished you[r] own self respect.... I realize now how my coping mechanism was flawed and, destructive not just to you but to our relationship with one another and our marriage.... I promise never again to go to bed angry or go off and leave you as a way of trying to cope with what I’m feeling or my frustrations.

(Emphasis added).

¶ 12. There were numerous occasions that showed Greg to be controlling over Emma’s relationships and emotionally distant when he was angry. On rare instances that Emma was allowed to go out with co-workers, she had a curfew of 9:00 p.m. She testified that eventually her friends quit asking her to go places because she was never able to go without fear of a confrontation with Greg. Emma also quit pursuing a graduate degree due to Greg’s threat of divorce if she did not quit school. Criticism and controlling behavior will “not fulfill the requirements of a divorce on the grounds [sic] of habitual cruel and inhuman treatment.” Morris v. Morris, 804 So.2d 1025, 1031(¶22) (Miss. 2002). However, “habitual ill-founded accusations, threats and malicious sarcasm, insults and verbal abuse may cause such mental suffering as to destroy health and endanger the life of an innocent spouse.” Stone v. Stone, 824 So.2d 645, 646-47(¶4) (Miss.Ct.App.2002) (quoting Holladay v. Holladay, 776 So.2d 662, 677(¶64) (Miss. 2000)). Greg habitually accused Emma of infidelity throughout the marriage, later even accusing her of having affairs with other women. “[FJalse accusations of infidelity, habitually made over a long period of time, without reasonable cause, constitute such cruelty as to warrant the granting of a divorce.” Hibner v. Hibner, 217 Miss. 611, 614, 64 So.2d 756, 757 (1953). In Greg’s deposition, he admitted that he forwarded the sexually explicit photographs to Emma’s attorney to show that she had a “proclivity” toward oral sex, which created a suspicion in his mind that she was cheating. In another letter to Emma, dated October 8, 1997, Greg had stated:

You even asked, coincidentally, back in July when you argued with me about oral sex not really being sex, if I had been having you followed.... Obviously you were concerned that you might have been caught in the act and that’s why I was quizzing you about whether or not you felt oral sex was sex.... All of this has contributed to making it hard to trust you and easy for me to feel very insecure about your fidelity.

No evidence was ever presented to show that Greg’s accusations were founded.

¶ 13. Greg contends that Emma’s desire for divorce was based solely on her desire to have children. It is apparent that having a family was important to Emma. She claimed that Greg had also expressed the desire to have children at one point; however, he told her shortly after their wedding that he no longer wanted children and even threatened divorce on this issue. Emma also claims that Greg told her on one occasion that she would be an unfit mother. The counselor from Good Samaritan stated that Greg told him that Emma agreed not to have children, but the counselor also noted that Emma expressed her longing for children in their session. Emma contends that any time she expressed a longing for children, Greg would leave the house or discuss divorce. When Emma started taking fertility drugs in 2005; Greg vacated the house and never came back. Emma has not disputed the fact that she wanted children; however, that fact in no way lessens her evidence of habitual cruel and inhuman treatment on the part of Greg.

¶ 14. We conclude that it was shown by a preponderance of the evidence that Greg continually subjected Emma to demanding and manipulative behavior and accusations of infidelity, coupled with emotional isolation when she was not acting in a manner that “pleased” him. As a result, Emma suffered from “massive stress headaches.” This “course of conduct” by Greg may well have been sufficient to support the chancellor’s grant of divorce based on habitual cruel and inhuman treatment. However, when combined with the incidents on November 23, 2005, and December 7, 2005, in which Greg entered the marital home through a window in the middle of the night, used military maneuvers to restrain Emma, and left gasoline-soaked clothing in the garage for Emma to find, we have no doubt that the chancellor’s conclusions were proper.

II. Whether the chancellor erred in denying Greg’s request for separate maintenance.

¶ 15. Greg argues that his requested separate maintenance of $5,543 per month was justified based on Emma’s abandonment of their marriage and her greater earning capacity. “Separate maintenance is a court-created equitable relief based upon the marriage relationship and is a judicial command to [a spouse] ... to provide suitable maintenance of [the other spouse] until such time as they may be reconciled to each other.” Perkins v. Perkins, 787 So.2d 1256, 1262(¶ 15) (Miss.2001) (citing Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993)). The chancellor has the power to grant separate maintenance based on (a) separation without fault on the part of the spouse praying for relief, and (b) willful abandonment of the spouse requesting relief, coupled with refusal by the at-fault spouse to support the other spouse. Thompson v. Thompson, 527 So.2d 617, 621 (Miss.1988). The spouse requesting relief “is not required to be totally blameless to allow an award of separate maintenance,” but any misconduct by such spouse “must not have materially contributed to the separation.” McIntosh v. McIntosh, 977 So.2d 1257, 1268(¶40) (Miss.Ct.App.2008) (citations omitted). As we have affirmed the chancellor’s grant of divorce based on Greg’s habitual cruel and inhuman treatment of Emma, which materially contributed to their separation, Greg’s claim for separate maintenance is a moot issue. See Weiss v. Weiss, 579 So.2d 539, 541 (Miss.1991) (where a divorce has been granted, a claim for separate maintenance in “no longer proper”).

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

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

      . Due to the explicit nature of some of the facts involved in this case, pseudonyms are used to protect the identity of the appellee.

      . The amount that Greg contributed was disputed by Emma who said that he only con-iributed about $7,000. Greg testified that their retirement goal was one million dollars, at which point the couple had plans to move to Columbus, Mississippi and live on his family’s farm.

      . Although Greg was not served with the divorce papers until November 28, 2005, Emma informed Greg of her intention to obtain a divorce in a phone conversation on the 23rd.

      . Greg’s e-mail stated:
      I’ve given [my attorney] evidence that I want entered for the record. I still retain the supporting photographic evidence. You had indicated to me through Ms. Bishop what you intend to allege. This evidence is all in [Emma’s] writing and the supporting photographic evidence clearly shows her “performing.” I had not wanted to use this and I told [Emma] that I wouldn't unless she does what she is anticipating doing. These are not threats, just sharing with you as you did with me what you intend to do going forward. Please feel free to ask [my attorney] for the documents as I intend for them to be entered as a matter of record anyway.
      Greg stated at trial that he thought Emma was going to make a claim of alienation of affection and the purported use of the photographs was to disprove any such claim. Emma never made any claim of alienation of affection. Despite Greg’s explanation, it appears to be fair reading of the e-mail that the threats to use the photographs of Emma were in response to her intent to raise the issue of Greg’s marijuana use.

      . The motion for temporary alimony, which was contained in Greg’s complaint for separate maintenance, was denied by the chancellor on January 20, 2007.

      . Greg argued that the reason gasoline may have been on the clothes was due to the fact that he was going through some containers of old clothes in the garage to see what he wanted to take and a small gas can on a baker's rack possibly got knocked over in the process.

      . Although Greg maintained that the photos were taken with Emma’s consent and that she enjoyed posing for them, Emma said that it was Greg's idea and it made her uncomfortable and that she did not like it. At trial, Greg denied using the evidence to threaten Emma or disparage her in any way. Regardless, the chancellor noted that she would not use the photos "as any type of influence one way or the other as it relates to the separate maintenance or the grounds for divorce.”


author: GRIFFIS, J.,

text:
    Franklin Ray ODOM, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-01000-COA.
    Court of Appeals of Mississippi.
    May 26, 2009.

      Franklin Ray Odom, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. On April 4, 2003, Franklin Ray Odom pleaded guilty to possession of precursor chemicals. Odom was sentenced to “thirty (30) yearsf] imprisonment, with eight (8) years served in the custody of the Mississippi Department of Corrections, and twenty-two (22) years suspended.”

¶ 2. On April 1, 2008, Odom submitted a motion for post-conviction collateral relief. Odom argued that he was not properly sentenced because a prior felon could not receive a suspended sentence.

¶ 3. On April 18, 2008, the trial court granted Odom’s motion and issued an order of “corrected judgment of conviction and sentence instanter.” The corrected judgment stated that Odom must serve “thirty years in the custody of the MDOC, provided, pursuant to Section 47-7-33 or Section 47-7-34 of the Mississippi Code of 1972, after having served a term of eight years in the custody of [the] MDOC, Odom shall be released and placed on supervised post-release supervision for a term of twenty-two years to commence upon his release from the custody of [the] MDOC.”

¶ 4. Mississippi Code Annotated section 47-7-33 (Rev.2004) prohibits a prior convicted felon from being eligible for a suspended sentence and placement on probation. The corrected sentence reads “47-7-33 OR 47-7-34.” Odom argues that section 47-7-34 (Rev.2004) allows a prior convicted felon to receive a sentence of up to five years of post-release supervision, which revokes any authority vested in the courts to give any suspended time. Odom appeals his corrected sentence.

ANALYSIS

¶ 5. Odom’s sole issue on appeal is a question of law. When reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

¶ 6. Mississippi Code Annotated section 47-7-34 provides that the maximum amount of time the MDOC may supervise an offender on the post-release supervision program is five years. Odom argues that the twenty-two years of post-release supervision violates the maximum of five years of post-release supervision allowed by the statute.

¶ 7. The Mississippi Supreme Court addressed this very issue in Johnson v. State, 925 So.2d 86 (Miss.2006). There, the court held that “while [s]ection 47-7-34 limits the term of repoi'ting (MDOC-sanctioned) post-release supervision to five years, convicted defendants may be sentenced to a longer term.” Id. at 102(¶ 30). The supreme court noted that the MDOC has the responsibility of monitoring the convicted felon for the first five years. “[T]he time period that extends beyond the five-year statutory maximum for post-release supervision becomes ‘unsupervised’ post-release supervision.” Id. (citation omitted). After the first five years, the MDOC’s responsibility to monitor the post-release supervision ends, and the court assumes the responsibility to monitor the remaining of the term of post-release supervision, or what is referred to as the “unsupervised post-release supervision.” Thus, a court may sentence a prior-convicted felon to more than five years of post-release supervision, provided the combined periods of incarceration and post-release supervision do not exceed the maximum sentence allowed for the offense. Miller v. State, 875 So.2d 194, 199(¶10) (Miss.2004). We interpret the trial court’s modified sentence of twenty-two years on post-release supervision to mean five years of supervised post-release supervision and seventeen years of unsupervised post-release supervision.

¶ 8. Accordingly, we find no merit to this issue and affirm the trial court’s corrected judgment of conviction and sentence.

¶ 9. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT GRANTING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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


text:
    Gregory LINSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00613-COA.
    Court of Appeals of Mississippi.
    May 26, 2009.

      Justin T. Cook, attorney for appellant.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Gregory Linson was convicted of selling a controlled substance, cocaine, in violation of Mississippi Code Annotated section 41 — 29—139(a)(1) (Rev.2005). Lin-son was sentenced as a second and subsequent offender under section 41-29-147 (Rev.2005) and a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007), to serve sixty years in the custody of the Mississippi Department of Corrections without eligibility for parole or probation. The trial court sentenced Lin-son as a second and subsequent offender based upon his previous conviction of conspiracy to sell a Schedule IV controlled substance. Linson now appeals and argues that the trial court erred when it sentenced him as a second and subsequent offender because conspiracy does not qualify as a prior conviction under section 41-29-147.

¶ 2. We are presented with a question of statutory interpretation, which is a question of law. Therefore, the standard of review in this case is de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (¶ 5) (Miss.2002).

¶ 3. Linson claims that his conviction for the sale of cocaine is not a second or subsequent offense under section 41-29-147 because his prior conviction for conspiracy was not a criminal violation under Article III of the Uniform Controlled Substances Law. The State responds that: (1) Linson is procedurally barred from raising this issue because there was no contemporaneous objection made during the sentencing phase of his trial, nor was it raised in his motion for a new trial, and (2) his sentence is legal.

¶ 4. First, we recognize that Linson neither raised this issue at trial nor in his motion for a new trial. During the sentencing phase of the trial, the court asked Linson’s counsel the following about Lin-son’s certified order of conviction for conspiracy to sell a controlled substance:

The Court: Mr. Price, any objection to the Court accepting that into evidence on the second subsequent offender?
Mr. Price: Not other, Your Honor, than our earlier stated objection as to the timeliness of the amendment of the indictment.

Linson did not raise this issue in the trial court and presents it for the first time on appeal. Therefore, we find that it is procedurally barred. Connell v. State, 691 So.2d 1004, 1007 (Miss.1997); Patterson v. State, 594 So.2d 606, 609 (Miss.1992).

¶ 5. Notwithstanding the procedural bar, this issue is without merit. Linson argues that: (1) conspiracy is not a drug crime under 41-29-147, and (2) conspiracy is an inchoate crime and is distinct from the crime contemplated by the conspiracy.

¶ 6. Mississippi Code Annotated section 41-29-147 reads:

Except as otherwise provided in Section 41-29-142, any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.
For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this article or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant or hallucinogenic drugs.

¶ 7. Linson argues that the second paragraph of section 41-29-147 sets forth the relevant convictions in other jurisdictions which may be considered for the purposes of enhancement. However, section 41-29-147 plainly states that if the offender has at any time prior to this offense been convicted “under any statute ... of any state relating to narcotic drugs, marihuana, depressant, stimulant or hallucinogenic drugs” then this is a second or subsequent offense. The statute does not say convicted under any statute of any other state. Linson’s argument is without merit.

¶ 8. Linson also argues that conspiracy is a separate and distinct crime from the crime contemplated by the conspiracy. Under section 41-29-147, the prior conviction has to stem from a statute that relates to narcotic drugs. Linson was convicted under Mississippi Code Annotated section 97-1-1 (Supp.2008) for conspiracy to sell a Schedule IV controlled substance. By the very nature of conspiracy, there is a conspiracy to commit an act. If that act relates to “narcotic drugs, marihuana, depressant, stimulant or hallucinogenic drugs,” then conviction under section 97-1-1 relates to “narcotic drugs, marihuana, depressant, stimulant or hallucinogenic drugs” and can be considered as a sentence enhancement under section 41-29-147. Linson’s argument lacks merit.

¶ 9. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF A CONTROLLED SUBSTANCE AND SENTENCE AS A HABITUAL OFFENDER OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

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


author: STUART, Justice.

text:
    Christopher HOWARD and Linda Howard, individually and as mother and next friend of Lacy Howard and Ratlin Howard v. ALLSTATE INSURANCE COMPANY et al.
    1071215.
    Supreme Court of Alabama.
    Nov. 21, 2008.
    Stewart L. Howard and Jason D. Miller of Stewart Howard, P.C., Mobile, for appellants.
    J. Mark Hart and Sandra Payne Hagood of Haskell Slaughter Young & Recliker, LLC, Birmingham, for appellee Allstate Insurance Company.
    Walter G. (Stoney) Chavers of Fleming & Chavers, L.L.P., Mobile, for appellee Preston Thompson.
    Mark E. Spear of Richardson, Spear, Spear, Hamby & Owens, P.C., Mobile, for appellees Perry Thompson and South Alabama Property Services, Inc.
   STUART, Justice.

Christopher Howard and Linda Howard, individually and as mother and next friend of Lacy Howard and Ratlin Howard, appeal the summary judgments entered in favor of Allstate Insurance Company, Preston Thompson, Perry Thompson, and South Alabama Property Services, Inc. (“SAPS”), defendants in an action filed by the Howards in the Mobile Circuit Court. We dismiss the appeal.

I.

On February 26, 2007, the Howards were traveling southbound on Schillinger Road in Mobile when, after slowing down to make a left turn, the 1993 Buick Regal automobile they were traveling in was struck in the rear by a 2001 Chevrolet Silverado 1500 pickup truck driven by Tomas Gonzales. All four members of the Howard family'were injured in the accident.

The truck Gonzales was driving at the time of the accident was owned by Preston Thompson. Preston and his wife Rachel own SAPS, a company that cleans and services foreclosed homes, and Gonzales worked at least occasionally as a laborer for SAPS. On the date of the accident, Gonzales and his housemate, Juan Elizon-do, had been helping Preston and his brother Perry move furniture and items belonging to the family between Mobile and Baldwin Counties. After their work in Baldwin County was completed, Preston allowed Elizondo to drive the truck home to Mobile so that Elizondo could transport a piece of furniture he wanted and so that Preston did not have to drive them back to Mobile and then return to Baldwin County, where he lived. Preston and Elizondo agree that Preston specifically told Elizon-do not to let Gonzales drive the truck, because Preston was aware that Gonzales had problems with his eyesight.

Elizondo claims that, after Gonzales and Elizondo returned home, he showered and went to bed to rest his ankle, which he had hurt that day. He further states that the keys to the truck were in his room when he went to bed. Gonzales, however, claims that Elizondo gave him the keys to the truck later that night so that Gonzales could get them some food. Elizondo denies this; he claims that Gonzales must have taken the keys to the truck while he slept. Regardless of how he got the keys, Gonzales subsequently left in the truck and was involved in the accident with the Howards.

On March 23, 2007, the Howards sued Gonzales, Preston and Rachel Thompson, Perry Thompson, and SAPS in the Mobile Circuit Court, asserting claims of negligence and wantonness. On December 12, 2007, Allstate filed a motion to intervene in the case, noting that it had issued an automobile-insurance policy to Preston on the truck involved in the accident and that there were outstanding issues regarding coverage for the accident with the How-ards. Allstate maintained that there was no coverage for the accident because, it argued, Gonzales was not an insured person under the policy.

Between December 17, 2007, and January 15, 2008, Preston, Perry, SAPS, and Allstate all moved separately for a summary judgment, arguing that Gonzales was not acting as an agent or employee of Preston or SAPS at the time of the accident and that nobody had given Gonzales permission or authorization to use the truck on the date of the accident; the Howards opposed the motions. On February 13, 2008, the Howards amended their complaint to assert additional negligence and wantonness claims and to add Elizon-do as a defendant, arguing that he was an agent of Preston, Perry, and/or SAPS and that he had negligently or wantonly either entrusted Gonzales with the truck or failed to secure the keys to the truck.

On March 7, 2008, the trial court granted the pending summary-judgment motions and dismissed those defendants from the case. They subsequently moved the trial court to make those judgments final pursuant to Rule 54(b), Ala. R. Civ. P., and, on May 23, 2008, over the Howards’ objection, the trial court granted those motions and entered an order making the previously entered summary judgments final. On May 23, 2008, the Howards filed their notice of appeal to this Court.

II.

“This Court looks with some disfavor upon certifications under Rule 54(b).
“ ‘It bears repeating, here, that “ ‘[cjertifications under Rule 54(b) should be entered only in exceptional eases and should not be entered routinely.’ ” State v. Lawhorn, 830 So.2d 720, 725 (Ala.2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala.1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987)). “ ‘ “Appellate review in a piecemeal fashion is not favored.” ’ ” Goldome Credit Corp. [v. Player, 869 So.2d 1146, 1148 (Ala.Civ.App.2003)] (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ. App.1996)) (emphasis added).’
“Dzruonkoivski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004). Also, a Rule 54(b) certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court ‘ “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” ’ Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002) (quoting Branch v. SouthTrust Bank of Do-than, N.A., 514 So.2d 1373, 1374 (Ala.1987)).”

Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala. 2006). In the instant case, the trial court certified as final the judgments entered in favor of Preston, Perry, SAPS, and Allstate while the claims against Gonzales and the claims made against Elizondo, asserted after the other defendants had moved for summary judgments, remained pending. The claims against Gonzales specifically alleged that he was acting in the line and scope of his employment with Preston and SAPS at the time of the accident; the claims against Elizondo specifically alleged that “at all material times” Elizondo was acting as an agent, servant, or employee for Preston, Perry, and SAPS. It would accordingly be contrary to the interests of justice to adjudicate these remaining claims against Gonzales and Eli-zondo separately from the claims against the other defendants; the common issues are intertwined. We therefore conclude that the trial court exceeded its discretion in certifying the summary judgments against Preston, Perry, SAPS, and Allstate as final. Because “[a] nonfinal judgment will not support an appeal,” Dzwcmkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004), the Howards’ appeal must be dismissed.

APPEAL DISMISSED.

COBB, C.J., and LYONS, BOLIN, and MURDOCK, JJ., concur.

      . Gonzales also goes by the names Gonzales Tomas, Diego Gonzales, Julio Tomas, Gomez, Martinez, and Matias.

      . Preston states that Gonzales was never a full-time employee and that lie merely worked sporadically as a day laborer.

      . Preston states that Gonzales and Elizondo volunteered to help him and Perry move furniture that day, that the work was unrelated to SAPS, and that Gonzales and Elizondo were not compensated for their help.

      . After taking her deposition, the Howards agreed to dismiss Rachel as a defendant.