author: ISHEE, J.,

text:
    Mario LONDON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KP-01982-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    Rehearing Denied Dec. 13, 2011.
    Certiorari Denied Feb. 23, 2012.

      Mario London pro se, John D. Watson, Southaven, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In September 2007, Mario London was arrested and charged with grand larceny after stealing a computer from a Wal-mart in Southaven, Mississippi. After London’s arrest, an eyewitness to the crime was shown a photographic lineup, from which the eyewitness immediately and positively identified London as the culprit. London was later indicted and tried before a jury in the Circuit Court of DeSoto County. He was found guilty of grand larceny in August 2009. The circuit court then determined that London qualified as a habitual offender, and his sentence was subsequently enhanced by the habitual-offender statute. As such, London was sentenced to life in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation. Aggrieved, London appeals. Finding no error, we affirm.

FACTS

¶ 2. On September 26, 2007, London entered a Walmart in Southaven, retrieved a computer from the electronics department, and began to leave the store without paying for the computer. As London walked toward the store’s exit, a Walmart greeter, Lorene Branstetter, asked London to produce his receipt for the computer. London blatantly refused, despite several requests from Branstetter for London to stop, and continued walking toward the exit doors.

¶ 3. Branstetter noticed a friend and former Walmart employee, Tony Boykin, entering the store as London was leaving, and told Boykin that London was stealing the computer. Boykin also attempted to stop London and force him to show Bran-stetter a receipt. However, London again refused, stating: “I don’t really have to show her a — thing.” Boykin followed London to the parking lot where he observed London place the computer in a vehicle and drive away. London quickly hit a curb in the Walmart parking lot, and his car became lodged in a median. Authorities retrieved the computer from the vehicle after apprehending London, who had fled the scene on foot.

¶ 4. Approximately two hours after the incident, Crystal Stockley, a Walmart asset-protection coordinator, arrived at the store and was asked to review video footage of the events from the store’s surveillance camera. Thereafter, Stockley produced two videos to the authorities that showed London’s actions from the time he entered Walmart until he drove away in the parking lot.

¶ 5. Three weeks after the theft, the record reflects that Boykin was presented with a photographic lineup by the authorities and asked “if he recognized anybody.” The record further indicates that Boykin immediately and positively identified London as the culprit. Sometime later, London was indicted by a grand jury for grand larceny, and the case was set for trial in August 2009.

¶ 6. At the trial, the prosecution introduced the surveillance videos into evidence and played parts of one video to the jury during several examinations of witnesses. Specifically, during Boykin’s testimony, Boykin pointed to himself in the video and then gave a first-hand explanation of what was occurring as the video reflected London exiting Walmart with the computer, with Boykin following him, and London ultimately fleeing the scene. Branstetter’s testimony at trial supported Boykin’s description of events, and it further detailed the confrontation with London and his refusal to produce a receipt for the computer. During deliberations, the jury was allowed to watch the two videos in their entirety — videos that showed London entering Walmart, walking to the electronics department, taking the computer, encountering Branstetter and Boykin, and ultimately leaving Walmart without paying for the computer.

¶ 7. Subsequently, the jury found London guilty of grand larceny. Due to London’s eleven prior felony convictions, four of which were crimes of violence, the circuit court sentenced London to life in the custody of the MDOC as a habitual offender without eligibility for parole or probation. In his initial appellate brief, London’s counsel argued the following: (1) the photographic lineup used by authorities for Boykin to identify London was overly suggestive; (2) the imposition of a life sentence without eligibility for parole or probation constitutes cruel and unusual punishment; (3) the circuit court erred by allowing the jury to review the videos entered into evidence but not played during the trial; and (4) the verdict is against the overwhelming weight of the evidence.

¶ 8. Later, London’s counsel withdrew, and London submitted a supplemental brief pro se. In addition to London’s previous assignments of error, he also claims in his supplemental brief that the prosecution did not prove he was a habitual offender, such that enhancement of his sentence under the habitual-offender statute was improper. Since this argument is interrelated to London’s assertion that his enhanced sentence constitutes cruel and unusual punishment, we address those issues together.

DISCUSSION

I. Photographic Lineup

¶ 9. We have held that “[a] photographic lineup is impermissibly suggestive when ‘the accused is conspicuously singled out in some manner from the others.’ ” Jones v. State, 993 So.2d 386, 393 (¶ 14) (Miss.Ct.App.2008) (quoting York v. State, 413 So.2d 1372, 1383 (Miss.1982)). However, the Mississippi Supreme Court further stated:

An impermissibly suggestive pretrial identification does not preclude in-court identification by an eye witness [sic] who viewed the suspect at the procedure, unless: ... from the totality of the circumstances surrounding it, ... the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentiflcation.

Thompson v. State, 483 So.2d 690, 692 (Miss.1986) (citation omitted). Additionally, this Court has reiterated the following findings of the United States Supreme Court in concluding what factors are to be considered when determining whether a lineup was overly suggestive:

1. The opportunity of the witness to view the criminal at the time of the crime.
2. The witness’s degree of attention.
3. The accuracy of the witness’s prior description of the criminal.
4. The level of certainty demonstrated by the witness at the confrontation.
5. The length of time between the crime and the confrontation.

Jones, 993 So.2d at 393 (¶ 14) (quoting Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). Finally, we have also determined that “[i]n practice, Mississippi tends to place a heavy burden on defendants who are contesting the propriety of a pretrial identification procedure.” Id. (quoting Brown v. State, 829 So.2d 93, 102 (¶ 18) (Miss.2002)).

¶ 10. London asserts that the photographic lineup compiled by authorities and presented to Boykin for identification was overly suggestive because London’s “skin complexion and the other five persons[’ skin complexion] in the photospread [were] not similar.” London maintains that his skin tone is lighter than the other five individuals depicted in the lineup and that the difference singled him out.

¶ 11. However, having reviewed the photographic lineup, the individuals all retain very similar features to London. The skin tones of all the individuals depicted are very similar. The lineup provided one picture of an individual who is slightly darker-complected than London, and one who is slightly lighter-complected; and contrary to London’s argument, three others whose skin tones are almost identical to London’s. Accordingly, we find that the photographic lineup was not suggestive.

¶ 12. Additionally, Boykin had a face-to-face encounter with London at Walmart for a credible amount of time; he remembered the encounter very accurately; he was asked to identify London less than a month after the encounter; and he positively identified London immediately from the photographic lineup. Furthermore, Boykin identified London again under oath at the trial. Accordingly, we cannot conclude that the photographic lineup was impermissibly suggestive in any way or that there is a likelihood of misidentification. This issue is without merit.

II. Application of the Habitual-Offender Statute

¶ 13. Mississippi Code Annotated section 99-19-83 (Rev.2007) is part of the sentencing guidelines adhered to by courts in this state and governs habitual offenders as follows:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced, to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

(Emphasis added). With regard to the prosecution’s burden of proving applicability of the habitual-offender statute, the Mississippi Supreme Court has held that the State “must show[,] and the trial court must determine^] that the records of the prior convictions are accurate, that they fulfill the requirements [for habitual-offender status], and that the defendant sought to be so sentenced is indeed the person who was previously convicted.” Phillips v. State, 421 So.2d 476, 481 (Miss.1982) (citations omitted).

¶ 14. Here, the record reflects that the prosecution provided the circuit court with London’s conviction record. London had been previously convicted of eleven felonies in Shelby County, Tennessee, four of which were crimes of violence, and he had been sentenced to and served over a year or more on several of the convictions. Although the convictions were from Tennessee, section 99-19-83 provides that the state in which the conviction was received is inconsequential. Accordingly, the prosecution met its burden of proof, and the circuit court properly applied the habitual-offender statute.

¶ 15. Furthermore, both this Court and the Mississippi Supreme Court have “consistently held that sentences under the habitual-offender statute do not constitute cruel and unusual punishment.” Long v. State, 52 So.3d 1188, 1197 (¶ 31) (Miss.2011) (citing Cummings v. State, 29 So.3d 859, 861 (¶ 5) (Miss.Ct.App.2010)). Additionally, the supreme court also specifically held that sentences imposing life without parole or probation pursuant to the habitual offender statute are not subject to an analysis with regard to the proportionality of the crime to the sentence. Whitlock v. State, 47 So.3d 668, 674-75 (¶ 19) (Miss.2010) (citing Hawkins v. State, 11 So.3d 123, 129 (¶ 16) (Miss.Ct.App.2008)). As such, London’s claims regarding application of the habitual-offender statute and the constitutionality of his sentence are meritless.

III. Jury Consideration of the Surveillance Videos

¶ 16. London asserts that it was improper for the circuit court to allow the jury to view the surveillance videos during deliberations when the videos were not played for the jury in their entirety during the trial. However, London fails to cite to any law that would prohibit a jury from viewing the contents of a video that has been properly admitted into evidence. The Mississippi Supreme Court has consistently held that “an argument unsupported by cited authority need not be considered by the Court.” Alexander v. Womack, 857 So.2d 59, 62 (¶ 12) (Miss.2003).

¶ 17. By contrast, Uniform Rule of Circuit and County Court 3.10 mandates: “The court shall permit the jury, upon retiring for deliberation, to take to the jury room the instructions and exhibits and writings which have been received in evidence, except depositions.” (Emphasis added). Accordingly, the circuit court was required to allow the jury to view the videos during deliberations once the videos had been properly admitted into evidence. This issue is without merit.

IV. Weight of the Evidence

¶ 18. When analyzing a claim that a verdict is against the overwhelming weight of the evidence, an appellate court “will only disturb a verdict when it is so contrary ... that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 843 (¶ 18) (Miss.2005) (citation omitted). Additionally, “the evidence should be weighed in the light most favorable to the verdict.” Id. (citation omitted).

¶ 19. Here, London asserts that the prosecution failed to “prove that the computer was actually stolen.” However, the prosecution presented two eyewitnesses to the incident, one of whom positively identified London in a photographic lineup, as well as two surveillance videos that show London entering Walmart, taking the computer, and immediately leaving the store without paying for it. Additionally, the record reflects that when asked to show a receipt for the computer, London refused to produce one and instead fled the premises. We hold that the prosecution presented adequate evidence for the jury to determine that London had committed the crime of grand larceny. This issue is meritless.

CONCLUSION

¶ 20. London’s first assignment of error regarding the photographic lineup is unfounded. We conclude that the photographic lineup was not impermissibly suggestive and that there was no possibility of misidentification when the witness identified London as the culprit. Additionally, the prosecution’s production of London’s criminal record properly provided the circuit court ample evidence to determine London’s status as a habitual offender. Given London’s criminal history, application of the habitual-offender statute and sentence of life without eligibility for parole or probation was proper under the sentencing guidelines. Furthermore, presentation to the jury of the videos was also proper since the videos had been admitted into evidence. Accordingly, we affirm the judgment of the Circuit Court of DeSoto County.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF GRAND LARCENY AND SENTENCE AS A HABITUAL OFFENDER OF LIFE 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 THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. RUSSELL, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Phillys Ann Mills CARSON, Appellant v. Donald K. SOWELL and Southern Computer Services, Inc., Appellees.
    No. 2009-CP-01836-COA.
    Court of Appeals of Mississippi.
    Jan. 24, 2012.

      Phillys Ann Mills Carson, appellant, pro se.
    Charles Cameron Auerswald, attorney for appellees.
    Before IRVING, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. Phillys Ann Mills Carson (Mills) appeals from the order of the DeSoto County Circuit Court mandating she sign a settlement agreement in her personal-injury case that was agreed to by her attorney. Finding no error or abuse of discretion, we affirm.

FACTS

¶ 2. Mills was injured when a Southern Computer Services Inc. (Southern Computer) company truck, di’iven by Donald K. Sowell, crashed into her vehicle. Her chiropractor, Dr. Steven Tencer, referred her to an attorney, David L. Walker (Walker). Progressive Gulf Insurance Company handled Mills’s claim for damages on behalf of Southern Computer. Mills filed a complaint against Sowell and Southern Computer, but there was no service of process.

¶ 3. Mills received and rejected four settlement offers presented to her by Walker — one for $8,972; one for $11,288; one for $13,000; and one for $18,000. According to Walker, he sent a letter to Mills for each of these settlement offers and was authorized to accept a settlement on her behalf between $18,000 and $25,000.

¶ 4. When Walker accepted a settlement for $19,000, Mills refused to sign the settlement agreement documents, and Walker filed a motion to enforce the settlement. Mills claimed that the $19,000 settlement was not authorized by her. She stated that she was not aware of the settlement until she received a call from her chiropractor thanking her for paying the bill. The DeSoto County Circuit Court granted Walker’s motion on October 8, 2009, ordering Mills to accept the settlement. During the motion hearing and on appeal, Mills argues that she was overcharged by her chiropractor or was not treated on the days the chiropractor alleged.

STANDARD OF REVIEW

¶ 5. In determining whether a trial court erred in enforcing a settlement agreement, this Court must determine whether the findings were clearly erroneous or there was an abuse of discretion. Ill. Cent. R.R. v. McDaniel, 951 So.2d 523, 526 (¶ 7) (Miss.2006). “Abuse of discretion is found when the reviewing court has a ‘definite and firm conviction’ that the court below committed a clear error of judgment [in] the conclusion it reached upon a weighing of the relevant factors.” Id. (quoting Howard v. TotalFina E & P USA, Inc., 899 So.2d 882, 888 (¶ 17) (Miss.2005)).

DISCUSSION

¶ 6. The trial court found, under Parmley v. 84 Lumber Co., 911 So.2d 569 (Miss.Ct.App.2005), that Walker had the authority to bind Mills to the settlement agreement. In Parmley, this Court stated that “[a]n attorney is presumed to have the authority to speak for and bind his client.” Id. at 578 (¶ 19) (citing Fairchild v. Gen. Motors Acceptance Corp., 254 Miss. 261, 179 So.2d 185, 187 (1965)). We further held:

Whether or not the attorney has agreed to a settlement on behalf of the client is a question of fact. The trial judge as trier of fact found that Parmley’s attorney did extend offers of settlement on behalf of his client, which were accepted by the Appellees. There is substantial credible evidence in the record to support that finding.

Id. (internal citation omitted).

¶ 7. As the Mississippi Supreme Court recently found in Illinois Central Railroad Co. v. Byrd, 44 So.3d 943, 947 (¶ 9) (Miss.2010):

A review of this Court’s cases reveals that trial judges presented with motions to enforce settlement agreements customarily make findings of fact related to the existence and/or terms of the settlement agreements as necessary to rule on the motions to enforce settlement. Further, this Court has not found such trial-court action to be improper. See, e.g., Ill. Cent. R.R. v. McDaniel, 951 So.2d 523, 525-26 (Miss.2006) (trial judge made findings of fact in deciding plaintiffs’ motion to enforce settlement agreement); Howard v. TotalFina E & P USA, Inc., 899 So.2d 882, 888-89 (Miss.2005) (trial judge made findings of fact regarding existence of a settlement agreement in denying plaintiffs motion to enforce settlement agreement); Tupelo Redevelopment Agency v. Abernathy, 913 So.2d 278, 282-85 (Miss.2005) (trial judge made findings of fact in denying defendant landowners’ motion to enforce settlement agreement); WRH Props., Inc. v. Estate of Johnson, 759 So.2d 394, 395 (Miss.2000) (trial judge made findings of fact regarding existence of a settlement agreement in granting defendant’s motion to enforce settlement agreement).

Here, it is undisputed that Walker was acting as Mills’s attorney at the time he accepted the settlement offer on her behalf. In making its decision, the trial court noted that testimony of Mills’s refusal to sign the settlement was “regarding the chiropractor and his bill.” The trial court found that the testimony supporting the settlement was “more credible, persuasive and in conformity with the proof presented.” These findings are not clearly erroneous or an abuse of discretion. Accordingly, we affirm the trial court’s judgment.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

      . The court also relied upon Harmon v. City of Southaven, 2009 WL 262064 (N.D.Miss.2009), which cites Parmley.


author: ROBERTS, J.,

text:
    Susan MASK, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2010-CC-01766-COA.
    Court of Appeals of Mississippi.
    Feb. 14, 2012.

      Carter Dobbs Jr., attorney for appellant.
    Leanne Franklin Brady, attorney for ap-pellee.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from the Mississippi Department of Employment Security’s (MDES) denial of Susan Mask’s request for unemployment benefits after she was terminated from her position as a seamstress at Townhouse Home Furnishings (Townhouse). She appealed the MDES Claim Examiner’s (Examiner) decision to an administrative law judge (ALJ) who affirmed the Examiner’s denial of benefits. Mask then appealed to the MDES Board of Review which affirmed the ALJ’s decision. Next, Mask appealed to the Monroe County Circuit Court which also affirmed the denial of her benefits. Mask filed a motion to alter or amend the judgment or, in the alternative, a motion for a new trial or to correct the judgment under Mississippi Rule of Civil Procedure 60(b); the circuit court denied this motion. Feeling aggrieved, Mask now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. From January 10, 2006, to September 8, 2008, Mask was employed by Townhouse as a seamstress in the chair-sewing department. Her primary duty was to sew pre-cut patterns of fabric onto chairs and loungers. Before her termination on September 8, 2008, Mask received multiple verbal warnings for incorrectly sewing patterns onto furniture. Tina West, Mask’s supervisor, testified she had warned Mask at least five times about the quality of her work. West testified that Mask repeatedly sewed the pieces of fabric onto the furniture incorrectly which then required each piece of furniture be torn down and redone, ultimately costing Townhouse time and money to correct the errors. The event that led to Mask’s termination occurred on September 8, 2008, when Mask sewed the rails backward on approximately fifty chaise loungers. The error resulted in several workers having to dismantle the chaise loungers which pushed back all remaining work until the next day. West testified that Mask made this error on multiple occasions and was warned after each occasion that this type of mistake was unacceptable. Additionally, Mask was verbally warned approximately two months prior to her termination for sewing the backs of multiple love seats incorrectly. Mask never provided any explanation as to why she was making these errors until she testified before the ALJ at the hearing. At that time, Mask admitted she had sewn the pieces incorrectly, but she did so because that is how West had showed her to sew them. Mask further testified that she was not fired but was laid off due to lack of work.

¶ 3. After her termination, Mask applied for unemployment benefits through the MDES. The Examiner met with Mask and an employer representative from Townhouse and determined that Mask committed misconduct; therefore, the Examiner denied Mask unemployment benefits on December 19, 2008. Mask then appealed the Examiner’s decision to the ALJ, and a hearing was held on February 20, 2009. After testimony from West and Mask, the ALJ affirmed the Examiner’s decision denying Mask unemployment benefits. Mask next appealed to the Board of Review; on April 13, 2003, the Board of Review adopted the ALJ’s findings of fact and affirmed the ALJ’s decision. Mask appealed the Board of Review’s decision to the circuit court. The circuit court, finding the Board of Review’s decision was supported by substantial evidence, was not arbitrary and capricious, and contained no errors of law, affirmed the Board of Review’s decision to deny Mask unemployment benefits.

¶ 4. Mask now appeals and raises the sole issue “[t]hat [MDES] and the circuit court erred in finding that [Mask] committed disqualifying misconduct pursuant to [Mississippi Code Annotated] § 71 — 5— 513(A)(1)(b) [ (Rev.2011) ] ... and that said findings were not based upon substantial evidence, and were arbitrary and capricious.”

STANDARD OF REVIEW

¶ 5. In eases where this Court reviews the circuit court’s judgment to affirm or deny the Board of Review’s decision, we apply the abuse-of-discretion standard. Miss. Dep’t of Employment Sec. v. Clark, 13 So.3d 866, 870 (¶8) (Miss.Ct.App.2009) (quoting Howell v. Miss. Employment Sec. Comm’n, 906 So.2d 766, 769 (¶ 7) (Miss.Ct.App.2004)). Additionally, “[a]n agency’s conclusions must remain undisturbed unless the agency’s order: (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the agency, or (4) violates a statutory or constitutional right of the complaining party.” Miss. Dep’t of Employment Sec. v. Good Samaritan Pers. Servs., Inc., 996 So.2d 809, 812 (¶ 6) (Miss.Ct.App.2008) (citing Miss. Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993)).

ANALYSIS

I. Disqualifying Misconduct

¶ 6. The sole argument Mask raises on appeal is that the circuit court erred in finding she committed misconduct pursuant to Mississippi Code Annotated section 71 — 5—513(A)(1)(b) because the finding was not based on substantial evidence and was arbitrary and capricious. She contends that her errors were not misconduct because no substantial evidence was presented to show wrongful intent or evil design. Further, she argues there was not an employer policy regarding the number of warnings or types of warnings an employee must receive before termination.

¶ 7. In the context of unemployment benefits, the Mississippi Supreme Court relied on the definition of the term “misconduct” found in the Wisconsin Supreme Court case of Boynton Cab Co. v. Neubeck, et al., 237 Wis. 249, 296 N.W. 636, 640 (1941). Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982). The definition of misconduct is as follows:

conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term.

Id. Further, “[m]ere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered ‘misconduct’ within the meaning of the statute.” Id.

¶ 8. Mask argues that her behavior cannot be deemed misconduct as to deny her unemployment benefits because there was no evidence presented of wrongful intent or evil design. She cites the supreme court case Allen v. Mississippi Employ ment Security Commission, 639 So.2d 904, 907 (Miss.1994) to support this position. In Allen, Waverly Allen was terminated from his position as a machine operator at Vesuvius USA Corporation after he received four reprimands for grinding parts incorrectly, failing to send parts to the proper stations, and improperly placing parts on the racks. Id. at 905-06. Allen was denied benefits “based upon the fact that he had before demonstrated that he had the ability to perform the work in accordance with his employer’s expectations.” Id. at 906. The supreme court reversed the circuit court’s judgment and found Allen’s actions could not be considered misconduct because “[t]he record lack[ed] evidence of wrongful intent or evil design. There [was] no indication in the record whatsoever that Allen’s negligence would import a wanton disregard of his employer’s interests in the mind of a reasonable person.” Id,, at 907. According to Mask, the evidence presented in her case is similar to that presented in Allen. She asserts that her supervisor testified she did not know why Mask had bad quality problems except maybe Mask forgot how to do the work. Mask contends that based on this testimony, there was no evidence she had wrongful intent or evil design sufficient to deny her unemployment benefits.

¶ 9. Keeping in mind our standard of review, we find the circuit court’s judgment was not arbitrary, or capricious and was based on substantial evidence. It is undisputed that Mask was employed by Townhouse for over two years and had demonstrated an ability to properly do the job assigned to her yet failed to perform the job up to her ability despite repeat warnings. In Mississippi Employment Security Commission v. Claiborne, 872 So.2d 698, 700 (¶ 6) (Miss.Ct.App.2004), this Court held that a “prolonged and persistent failure to perform routine duties that the employee is capable of performing properly, especially when that employee is given repeated warnings of those failures but apparently refuses to heed those warnings, may rise to the level of disqualifying misconduct as that term has been defined by statutory enactment and subsequent judicial interpretation.” Further, in Shavers v. Mississippi Employment Security Commission, 763 So.2d 183, 186 (¶ 12) (Miss.Ct.App.2000), this Court affirmed the denial of unemployment benefits to Carolyn Shavers after she was “reprimanded at least five times for failing to properly clean the silk screens and the squeegees.” We further stated: “[although each incident taken separately may not be enough to support a finding of misconduct, all of these actions considered together evidence ‘repeated neglect of her employer’s interest’ and thereby constitute misconduct on the part of Shavers.” Id.

¶ 10. In the current case, there was evidence presented that Mask had received numerous warnings for incorrectly sewing pieces of fabric onto pieces of furniture, yet she continued making the same errors. Unlike the Allen case where Allen expressed a concern about being able to handle the duties of his job, Mask never expressed any concern and had, in fact, correctly sewed the pieces many times. There was also testimony that Mask’s errors would cause Townhouse to shut down other parts of the factory, move employees to dismantle the improperly made furniture covers, throw away the covers, re-cut new pieces, and sew them on properly which cost Townhouse time, money, and resources. Applying the holdings in Shavers and Claiborne, we find Mask’s repeated errors, taken as a whole, demonstrate a repeated negligent disregard of Townhouse’s interest. Therefore, this issue is without merit.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY IS AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. FAIR, J., NOT PARTICIPATING.


text:
    Danny Ray POWELL Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01064-COA.
    Court of Appeals of Mississippi.
    Feb. 14, 2012.

      Leslie S. Lee, Jackson, Benjamin Allen Súber, Brian Bienvenu Alexander, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On the morning of January 5, 2009, Deborah Ruhr, Coast Inn and Suites’ (the Hotel) manager, discovered that her office at the Hotel had been burglarized. After an investigation conducted by the Wave-land City Police Department, Danny Powell Sr. was arrested and charged with burglary of the Hotel. After a trial in the Hancock County Circuit Court, Powell was convicted of burglary and sentenced, as a habitual offender, to a life in the custody of the Mississippi Department of Corrections (MDOC), without eligibility for parole or probation. Powell now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. When Ruhr arrived at her office at approximately 7:00 a.m. on January 5, 2009, she discovered that it had been burglarized after she had left the previous day. Ruhr then contacted the police and the Hotel’s owners to inform them of the burglary. Ruhr made an inventory of the stolen items. She noted that a computer screen, keyboard, computer mouse, a CD player, a CD titled “Deb’s Mix,” a briefcase, various airline-sized liquor bottles, and a digital camera were all missing from her office.

¶ 3. The police began their investigation by reviewing the Hotel’s surveillance video from the night before and early morning hours of that day. The video showed that at approximately 2:36 a.m. a person in a gray hooded sweatshirt, who was riding a bicycle, pulled into the Hotel breezeway between Rooms 125 and 127. This person was later identified as Powell. Powell approached Ruhr’s office door and slid a credit card or something similar down the door to unlock it. The video showed Powell exit the office carrying a wicker basket of items. He then re-entered the office and left again several minutes later. Tim Pressgrove, a maintenance man for the Hotel, provided the license plate number of a suspicious van he had seen in the Hotel parking lot earlier that morning. He told the police that he had seen a man, later identified as Powell, fitting the description at the Hotel earlier that morning being picked up in a van. He also told the police that Powell was wearing a hooded sweatshirt and was carrying a bicycle downstairs. As Pressgrove walked closer to the van, the van’s driver, Don Wilson, loudly greeted Pressgrove as if to alert Powell. Pressgrove noted that Powell quickly squatted as to avoid detection.

¶ 4. Throughout the investigation, at least two other individuals were interviewed as possible suspects, but they were both later determined not to be suspects. Investigator Laura Stepro, lead investigator on the case, followed up on the license plate number Pressgrove provided and interviewed Wilson. Wilson informed them that he and Powell were co-workers. He also stated that Powell called him on the morning of January 5, 2009, to ask if he would drive Powell to the Hotel to pick up some clothes. Wilson drove Powell to the Hotel and observed Powell exit an upstairs room with clothes, a box, and a radio. Wilson further provided Investigator Ste-pro with the name Allen Thomas, a person with which Powell had previously lived. Thomas then provided Investigator Stepro with the location of Powell’s current residence at Paul Jordan’s home. Investigator Stepro met with Jordan and learned that Powell was renting a shed on Jordan’s property. Jordan also stated that three other people were living on his property, but Powell was the only one besides Jordan who had a key to the shed.

¶ 5. Based on this information, Investigator Stepro executed a search warrant for the shed Powell was living in at the time. The search produced a computer mouse, a tan, hooded sweatshirt, blue shorts, and a CD titled “Deb’s Mix.” Later that day, Jordan contacted Investigator Stepro about some computer parts he discovered on his property. Investigator Ste-pro returned to Jordan’s property and recovered two computer monitors and two computer keyboards in a planter pot near the woods.

¶ 6. Investigator Stepro searched for Powell and found him on Herlihy Street. She advised Powell of his Miranda rights, and he agreed to give a statement. Powell was indicted, as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007), on June 25, 2009, for one count of burglary. He entered a plea of not guilty on August 17, 2009, in the circuit court. Shortly after voir dire was completed on February 2, 2010, the State filed a motion to amend Powell’s indictment to reflect Powell’s habitual-offender status pursuant to Mississippi Code Annotated section 99-19-83 (Rev.2007) instead of the Mississippi Code Annotated section 99-19-81. This motion was granted.

¶ 7. Powell’s trial began on February 2, 2010, with the State calling Ruhr to testify. Then Pressgrove testified for the State followed by Wilson, Thomas, Jordan, Investigator Howard Parker, and Investigator Stepro. In her testimony at trial, Investigator Stepro discussed her first meeting with Powell at which he agreed to give a statement. He was not under arrest at the time he gave the statement. Powell confirmed Wilson had picked him up from the Hotel on several occasions. Powell then informed Investigator Stepro “that he wasn’t going to say anything.” When asked if she stopped the interview at that point, Investigator Stepro stated, “No.” She then testified that “[Powell] said he was not going to tell us the truth about something he did wrong, nor was he going to do anything for us to help [us] put him away.” The circuit judge interrupted Investigator Stepro’s testimony, excused the jury, and asked what “the substance of the anticipated testimony” was. The State responded by saying that Investigator Stepro would testify that Powell told her to take him away because “he’s not going to confess to something he did or didn’t do.” Powell objected to any testimony after Powell requested the interview be stopped. The circuit judge sustained that objection and stated that Investigator Stepro was “not to discuss in front of the jury anything that was stated after ... [Powell] says ‘if you have anything on me, arrest me.’ and that she was not to say that Powell told her he was not going to tell her anything he did or did not do.” After questioning Investigator Ste-pro, the State rested its case. Powell then rested his case as well. At the end of his two day trial, Powell was found guilty of burglary and sentenced to life in the custody of the MDOC pursuant to the enhanced sentencing found in Mississippi Code Annotated section 99-19-83 (Rev. 2007).

¶ 8. On appeal, Powell raises three issues, which we recite verbatim:

I. Whether the [circuit court] erred in allowing the [State] to amend the indictment to charge Powell as a habitual offender under [Mississippi Code Annotated section 99-19-83] instead of [Mississippi Code Annotated section 99-19-81]?
II. Whether Investigator Stepro’s testimony violated Powell’s Fifth Amendment rights?
III. Whether the [circuit] court erred in overruling Powell’s motion for a new trial?

ANALYSIS

I. Amending the Indictment

¶ 9. The circuit court’s decision to allow an indictment to be amended is a question of law. Jackson v. State, 943 So.2d 746, 749 (¶ 11) (Miss.Ct.App.2006) (citing Peterson v. State, 671 So.2d 647, 652 (Miss.1996) (overruled on other grounds)). Questions of law receive a de novo review. Jones v. State, 912 So.2d 973, 975 (¶ 8) (Miss.2005) (citing UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hosp., Inc., 525 So.2d 746, 754 (Miss.1987)).

¶ 10. On appeal, Powell first argues that the circuit judge committed error when he permitted the State to amend his indictment from being a habitual offender under Mississippi Code Annotated section 99-19-81 to being a habitual offender under Mississippi Code Annotated section 99-19-83. Pursuant to Mississippi Code Annotated section 99-19-81, Powell faced a maximum sentence of seven years; Mississippi Code Annotated section 99-19-83 increased Powell’s potential sentence to life without eligibility for parole or probation. Specifically, Powell asserts that because the circuit judge permitted this amendment on the first day of Powell’s trial, he was unfairly surprised and did not have fair notice and opportunity to present a proper defense. He concedes that an amendment to an indictment is permissible when the amendment is one of form and not of substance. Akins v. State, 493 So.2d 1321, 1322 (Miss.1986) (citations omitted). However, he argues that this amendment was one of substance and was, therefore, impermissible.

¶ 11. Uniform Rule of Circuit and County Court 7.09 provides the language that allows the State to amend an indictment to reflect habitual-offender status or enhanced sentencing; it reads as follows:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as [a] habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss.Code Ann. § 63-11-30). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

Powell cites Smith v. State, 477 So.2d 191, 195-96 (Miss.1985) to support his contention that he was not provided adequate notice and a meaningful opportunity to be heard. In the Smith case, Turner Paul Smith was indicted for one count of burglary, and the indictment also stated that there were two “separate incidences at different times and [Smith had] been sentenced thereon to separate terms of one (1) year or more in various state penal institutions.” Id. at 192. Also, the indictment stated: “Habitual Criminal Burglary 97-17-33.” Id. The indictment did not state under which habitual-offender statute Smith was indicted. Id. at 193. It was not until after Smith was convicted and subject to sentencing that it was determined he would be sentenced under Mississippi Code Annotated section 99-19-83, thereby making his sentence a mandatory life sentence without the eligibility for parole or probation. Id. at 193-94. The Mississippi Supreme Court held: “An analysis of the indictment in this case, together with the foregoing transcript of the sentencing hearing, clearly show[ed] a denial of due process in sentencing. The comparison of a seven-year sentence [under Mississippi Code Annotated section 99-19-81], as opposed to a life sentence [under Mississippi Code Annotated section 99-19-83], without probation or parole is too significant a deprivation of liberty to be subjected to a procedural bar.” Id. at 195.

¶ 12. Powell also argues that the supreme court’s decision in Griffin v. State, 540 So.2d 17, 20-21 (Miss.1989) supports his argument that the circuit court erred in allowing the State to amend the indictment. In Griffin, the circuit court allowed the State to amend the indictment after it rested its case. Id. at 20. Willie Earl Griffin objected to this amendment on the ground that the amendment was one of substance and ultimately altered his whole theory of defense. Id. The supreme court agreed and found that “the State recognized that it had failed to meet its burden of proving that [Griffin] had committed aggravated assault by shooting [Hilbert] Cook and the amendment brought about an entirely new charge”; therefore, the amendment was a substantive change and not permissible at such a late date. Id. at 21. Lastly under this issue, Powell cites to Akins v. State, 493 So.2d 1321, 1322 (Miss.1986), to argue that the amendment to his indictment from Mississippi Code Annotated section 99-19-81 to Mississippi Code Annotated section 99-19-83 was impermissible. -Ernest Akins Jr. was initially indicted as a habitual offender under Mississippi Code Annotated section 99-19-81; however, after he was convicted, but before he was sentenced, the circuit court permitted the State to amend Akins’s indictment to charge him as a habitual offender under Mississippi Code Annotated section 99-19-83. Id. The supreme court found that this amendment was improper because the indictment was not “was not sufficient to apprise the defendant that the state was seeking life imprisonment without probation or parole and that the amendment to the indictment was one of substance, not merely of form[,]” and they vacated Akins’s sentence and remanded the case for sentencing pursuant to Mississippi Code Annotated section 99-19-81. Id.

¶ 13. In the current case, the State sought to amend the indictment after voir dire had been completed. This fact distinguishes this case from the eases Powell has cited because in Akins and Smith, the indictment was amended after trial but before sentencing, and in Griffin, the amendment was sought after the State had rested its case and altered the actual substantive charge. Instead, we find that the case factually similar to the current case is Wells v. State, 57 So.3d 40, 48 (¶27) (Miss.Ct.App.2011) (citing Williams v. State, 766 So.2d 815, 816-18 (¶¶ 5-10) (Miss.Ct.App.2000)), where this Court held: “In accordance with [Uniform Rule of Circuit and County Court 7.09], ... an amendment requested on the day of the trial to add an enhanced penalty was proper where the defendant was apprised of the charge pending against him, was not unfairly surprised, and was afforded a fair opportunity to present his defense.”

¶ 14. Additionally, the State’s amendment was not one of substance but one of form. An amendment is considered to be one of substance when the essence of the charge is altered. Rhymes v. State, 638 So.2d 1270, 1275 (Miss.1994). If the amendment either “materially alter[s] facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter[s] a defense to the indictment as it originally stood so as to prejudice the defendant’s case[,]” then the amendment is substantive. Spears v. State, 942 So.2d 772, 774 (¶ 6) (Miss.2006) (quoting Miller v. State, 740 So.2d 858, 862 (¶ 13) (Miss.1999)). The substance of Powell’s indictment did not change. The previous crimes the State relied on to charge him as a habitual-offender under Mississippi Code Annotated section 99-19-81 were the very same ones the State relied on when amending the indictment to reflect his habitual offender status under Mississippi Code Annotated section 99-19-83. Powell’s indictment listed his previous convictions as follows: a September 1986 burglary conviction with a sentence of five years in custody of the MDOC, a March 1987 conviction of jail escape and sentence of five years in the custody of the MDOC, an August 1999 conviction of aggravated battery and sentence of four years in the custody of the Louisiana Department of Public Safety and Corrections, and an August 1999 conviction for grand larceny and sentence of two years in the Louisiana Department of Public Safety and Corrections. The essence of Powell’s charge of burglary was neither altered nor was a defense to a burglary charge altered by the amendment to the indictment.

¶ 15. In the recent case Gowdy v. State, 56 So.3d 540, 545 (¶ 19) (Miss.2011), the supreme court held that the State’s attempt to amend Tyrone Gowdy’s indictment to reflect his status as a habitual offender was not permissible because “an amendment to the indictment to allege habitual[-]offender status after conviction is an unfair surprise.” Gowdy was charged with felony driving under the influence, and he elected to go to trial after rejecting the State’s plea deal. Following Gowdy’s trial, the State indicated its intent to amend Gowdy’s indictment to reflect recently discovered prior convictions in Iowa; the State was uncertain as to whether the amendment would reflect his habitual-offender status pursuant to Mississippi Code Annotated section 99-19-83 or Mississippi Code Annotated section 99-19-81. Id. at 544 (¶ 15). Two months after Gowdy was convicted, the State filed its motion to amend his indictment to reflect his habitual-offender status under Mississippi Code Annotated section 99-19-83 requiring a mandatory life sentence. Id. at 544-45. Gowdy appealed, and the supreme court vacated his enhanced penalty and remanded the case for resentencing. Id. at 546 (¶22). The supreme court acknowledged that Rule 7.09 “does not speak to the timing of the amendment, only that the defendant must be ‘afforded a fair opportunity to present a defense’ and ‘not [be] unfairly surprised.’ ” Id. at 545(¶ 16). The supreme court also noted that Uniform Rule of Circuit and County Court 11.03(1) “requires that an indictment ‘must allege with particularity the nature or description of the offenses constituting previous convictions, the state or federal jurisdiction of any previous convictions, and the date of judgment,’ and failure to comply with this rule will result in reversal of the enhanced sentence.” Id. at 546 (¶ 20) (citing Ormond v. State, 599 So.2d 951, 962-63 (Miss.1992)). The supreme court found that Gowdy’s original indictment “alleged that Gowdy previously had been convicted of two DUIs, but, before trial, the State amended the indictment to add a third prior DUI conviction.” Id. at 542 n. 1. It was based on this reasoning that the supreme court found the amendment to Gow-dy’s indictment constituted an unfair surprise. Id. at 545 (¶ 19).

¶ 16. This case is factually distinguishable from Gowdy. Unlike the current case, Gowdy had not been charged as a habitual offender until after his guilty verdict and conviction. Powell was aware that he was being indicted as a habitual offender by his original indictment. Further, the State did not attempt to add an additional crime to elevate Powell’s indictment because the original indictment contained, with specificity, all of Powell’s past convictions. Also, unlike the Gowdy case, the State moved to amend Powell’s indictment prior to commencement of trial as opposed to after conviction. All these facts distinguish this case from Gowdy. Therefore, we find that Powell was not unfairly surprised or prejudiced by the amendment of his indictment as a habitual offender under Mississippi Code Annotated section 99-19-83.

¶ 17. We find this issue is without merit.

II. Fifth Amendment

¶ 18. Powell next asserts that Investigator Stepro’s testimony violated his Fifth Amendment rights. He submits that the Fifth Amendment guarantees him the right to remain silent and the right to not provide evidence against himself. Relying on Quick v. State, 569 So.2d 1197, 1199, (Miss.1990), Powell argues it was improper and reversible error for the State to comment on his silence after he invoked his right to remain silent as it may deprive him of his right to due process. The standard of review when reviewing the admissibility of evidence is whether the circuit judge abused his discretion in admitting or denying the evidence. McGowan v. State, 706 So.2d 231, 243 (¶ 48) (Miss.1997) (quoting Johnson v. State, 666 So.2d 499, 503 (Miss.1995)).

¶ 19. At issue in this case is the following series of questions and answers during the State’s direct examination of Investigator Stepro:

State: When you encountered Mr. Powell, did you advise him of his rights?
Stepro: Yes, I did.
State: Did he agree to give you a statement?
Stepro: Yes, he did. He came to the police department and gave me a statement.
State: What was the substance of that statement?
Stepro: Basically said that he had come to Mississippi and that he had stayed at the hotel by Sav-A-Center, the old Sav-A-Center. I asked him about Don Wilson picking him up from the hotel, and he said that Don had picked him up several — on several occasions.
State: From the hotel there?
Stepro: From the Hotel.
State: Okay.
Stepro: And then he said that he wasn’t going to say anything. We didn’t have anything to arrest him one, then, you know — if we had anything to arrest him on, to arrest him because he—
State: Did you stop the interview then?
Stepro: Did I stop it?
State: Yes.
Stepro: No.
State: What else did you say?
Stepro: He said he was not going to tell us the truth about something he did wrong, nor was he going to do anything for us to help put him away. And I told him, I said “Danny, you’re on the video plain as day coming in and out of the hotel.”
State: Did he at that point end the interview?
Stepro: He made a statement that if he was on—
The Court: Excuse me. One second, ma’am. Can counselors approach?

At this point, the jury was excused, and the State informed the circuit judge of the anticipated testimony. Investigator Ste-pro would have testified that Powell “asked if we had anything on him, to arrest him because he was not going to say anything on tape” and requested that the tape be stopped. Powell then moved that anything after the request to stop the tape should be suppressed, and the circuit judge granted that motion. The circuit judge further stated that Investigator Ste-pro was “not to discuss in front of the jury anything that was stated ... after [Powell] says ‘if you have anything on me, arrest me.’ ” Investigator Stepro complied, and no mention of Powell’s statements after he requested the tape be stopped was made when her testimony resumed.

¶ 20. Powell argues that Investigator Stepro’s comments made in front of the jury regarding whether or not he was going to admit any wrongdoing could be deemed as a protest to any allegation of wrongdoing. Powell further asserts that although the circuit judge subsequently suppressed this line of testimony, the jury still heard that Powell “was not going to tell [the police] the truth about something he did wrong[,]” and this statement was highly prejudicial to him as it could be considered incriminating or proof of his guilt. As such, Powell argues that this testimony was in violation of his Fifth Amendment right not to provide evidence against himself.

¶ 21. We recognize that it is not proper to comment on the post-Miranda silence of an accused and violation of this is often found to be reversible error. See Gossett v. State, 660 So.2d 1285, 1291 (Miss.1995); Quick, 569 So.2d at 1199. However, there are instances in which such violation could be deemed harmless error. In Byrd v. State, 977 So.2d 405, 411 (¶ 19) (Miss.Ct.App.2008), this Court found that the testimony regarding Nancy Byrd’s and Wendy Byrd Miller’s rights to remain silent was harmless error because their silence was not being used against them and only one reference to their silence was made in front of the jury. Similarly, in Hope v. State, 992 So.2d 666, 672 (¶ 22) (Miss.Ct.App.2008), this Court held that Cleveland Hope was not “prejudice[d] as a result of Investigator Bland’s statement. Investigator Bland’s statement was not a comment on Hope’s failure to testify.” Also in Byrd, this Court found that “Investigator Bland’s statement ‘did not invite the jury to consider the fact that [Hope] did not give a statement as evidence of his guilt. Instead, [Investigator Bland] was simply explaining why he had been unable to identify and locate the man who was with [Hope].’” Id. First, and foremost, Powell made no contemporaneous objection to Investigator Stepro’s comments. It was the circuit judge who interrupted Investigator Stepro’s testimony and later sustained Powell’s objection to that line of testimony when the jury was excused. According to the supreme court case Goff v. State, 14 So.3d 625, 655 (¶ 118) (Miss.2009) (citing Wells, 903 So.2d at 742 (¶ 6)), “issues not presented to the trial court for lack of contemporaneous objection are procedurally barred, and error, if any, is waived.” Further, Powell neither requested the circuit judge give the jury a curative instruction on that line of testimony nor moved for a mistrial. Additionally, Investigator Stepro only made one comment regarding Powell’s refusal to give a statement, and the statement was not made to prove that Powell did not give a statement because he was guilty. Further, the evidence presented at trial beyond Investigator Stepro’s comments about Powell’s refusal to give a statement was more than sufficient for a jury to find him guilty of burglary; therefore, her comment was harmless beyond a reasonable doubt. Based on our review of the record, we cannot say that Investigator Stepro’s comments deprived Powell of a fair trial or prejudiced him in any way. This issue is without merit.

III. Motion for a New Trial

¶ 22. Lastly, Powell argues that the circuit court erred in denying his motion for a new trial. The standard of review this Court applies when reviewing a motion for a new trial is whether the circuit court abused its discretion when denying the motion. Johnson v. State, 42 So.3d 53, 57 (¶ 14) (Miss.Ct.App.2010). A motion for a new trial is a challenge to the weight of the evidence; therefore, the circuit court will only be reversed when the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (quoting Wilkins v. State, 1 So.3d 850, 854 (¶ 11) (Miss.2008)). Further, all evidence must be viewed in a light most favorable to the verdict. Id.

¶ 23. Powell argues that there were other inferences that could be drawn from the evidence. For example, the stolen property recovered from the shed could have been placed there by someone else because the shed was often a hangout spot for other people and someone else also had a key to the shed. Powell next argues that Investigator Stepro did not consider anyone else involved as a suspect even though the other people could have been further developed as a suspect. His final assertion to support this issue is that the evidence was primarily testimony of non-credible witnesses, evidence from a shed on someone else’s property that others had access to, and a fuzzy surveillance camera video.

¶ 24. It is well established “that the jury is responsible for judging the credibility of witnesses and the weight that should be attached to their testimony.” Price v. State, 892 So.2d 294, 297 (¶ 15) (Miss.Ct.App.2004) (quoting Jackson v. Daley, 739 So.2d 1031, 1039 (¶ 29) (Miss.1999)).

¶ 25. In this case, the jury was presented with testimony from several witnesses, and based on the testimony and evidence presented at trial, the jury found Powell guilty of the crime of burglary. The supreme court adopted a four-part test when evaluating the strength of the inference that can be drawn from possession of stolen property. Presley v. State, 994 So.2d 191, 194-95 (¶ 16) (Miss.Ct.App.2008) (citing Shields v. State, 702 So.2d 380, 382 (Miss.1997)). The test is as follows:

1. The temporal proximity of the possession to the crime to be inferred;
2. The number or percentage of the fruits of the crime possessed;
3. The nature of the possession in terms of whether there is an attempt at concealment or any other evidence of guilty knowledge;
4. Whether an explanation is given and whether that explanation is plausible or demonstrably false.

Id. at (¶ 16). Applying the temporal proximity part to the facts in the current case, the evidence presented at trial was that Powell’s home was where a majority of the stolen items were found and that testimony from other witnesses linked Powell to possession of several other stolen items. Powell argues that since other people had limited access to the shed that they may have planted the item. However, there was testimony at trial that no one hung around the shed after Powell moved in; and only Powell and Wilson, his landlord, had a key to the shed. The next part of the test involves “the number or percentage of the fruits of the crime possessed[.]” Id. As was discussed above, several items were found in Powell’s home and several other items were seen in his possession after the burglary. The third part of the test involves “the nature of the possession in terms of whether there is an attempt at concealment or any other evidence of guilty knowledge[.]” Id. The evidence presented at trial showed that Powell possessed clothing and the bicycle matching the ones in the surveillance video and that he tried to hide behind some bushes when Pressgrove walked by the following morning. Lastly, Powell provided no explanation of how the stolen property was in his possession and in his home.

¶ 26. Based on the application of this case’s facts to the Presley test and our review of the record, we find that the jury’s verdict is not against the overwhelming weight of the evidence so as to cause an unconscionable injustice. This issue is without merit.

¶ 27. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY AND SENTENCE, AS A HABITUAL OFFENDER, OF LIFE 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 HANCOCK COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.


author: CARLTON, J.,

text:
    Thomas Sheldon VINCENT, Appellant v. Clinton CREEL and Beverly Stockstill Co-Conservators for their Adult Daughter Shannon Celeste Creel, Appellees.
    No. 2010-CA-01198-COA.
    Court of Appeals of Mississippi.
    Feb. 14, 2012.

      James R. Hayden, Petal, attorney for appellant.
    Glenn Louis White, attorney for appel-lees.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Thomas Vincent appeals the Pearl River County Chancery Court’s judgment setting aside the November 8, 2004 deed to property in Pearl River County, Mississippi, from Shannon Creel. Vincent also appeals the chancellor’s decision to place the property in a constructive trust to be held by Creel’s estate. Finding error, we reverse and render the chancellor’s judgment.

FACTS

¶ 2. In 1997, Creel resigned from her job due to the debilitating effects of diabetes. Creel’s condition deteriorated to the point that her vision became severely impaired, and she required kidney dialysis. When Creel became unable to drive or adequately care for herself, she moved into her mother’s residence and granted her mother, Beverly Stockstill, power of attorney over Creel’s day-to-day affairs.

¶ 3. Creel owned property in Pearl River County, referred to as the Henley property. As a result of her illness, Creel attempted to sell the property. The new owners eventually proved unable to make payments, and Creel regained title and possession of the property. During this time, the property fell into a state of disarray, and Creel hired a contractor to make repairs. In her deposition, Creel testified that the contractor ultimately defrauded Creel out of approximately $10,000.

¶ 4. On September 1, 2004, Creel quit-claimed the Henley property to Stockstill, in an effort to protect the property from creditors. Vincent, Creel’s friend since 1996, offered to repair the property in return for rent-free use and occupancy of the property. Stockstill agreed to deed the land to both Creel and Vincent on October 18, 2004, as joint tenants with right of survivorship. Without any written or other documentary evidence to support her assertion, Stockstill claimed that she conveyed the property to them with the understanding that Vincent would convey the property back to Creel, solely in her name, at any time Creel requested. Creel later executed a quitclaim deed to her share of the joint interest in the Henley property to Vincent, the other joint tenant, on November 8, 2004.

¶ 5. Vincent lived in a home on the Henley property from 2004 until 2006, when Creel approached Vincent and asked him to trade the property back to Stockstill in return for a one-half interest in a home owned by Stockstill. Vincent refused. On September 18, 2006, the Pearl River County Sheriffs Department arrested Vincent on the charge of fraud against a disabled person. Creel and Stockstill then filed a complaint to void Creel’s November 2004 deed to Vincent, alleging that Vincent had fraudulently coerced Creel to convey her property to Vincent with no consideration. Vincent responded with an answer and a counterclaim, seeking damages as a result of Creel’s and Stockstill’s actions. On August 28, 2008, Creel filed an amended complaint seeking to void the quitclaim deed.

¶ 6. Creel passed away prior to the trial held in the Pearl River County Chancery Court, but the chancellor admitted Creel’s videotaped deposition into evidence. After the trial, the chancellor found that a confidential relationship existed between Creel and Vincent. The chancellor further found that Vincent failed to rebut the showing of undue influence. The chancellor voided Vincent’s title to the property and determined that the property should be held in a constructive trust by Creel’s estate.

¶ 7. Vincent filed a motion to reconsider or, in the alternative, a motion for a new trial. The chancellor denied his motion and entered a final judgment setting aside the quitclaim deed from Creel to Vincent due to undue influence and fraud. On appeal, Vincent raises the following assignments of error: the chancellor erred in setting the deed aside based on undue influence and fraud; the chancellor erred in establishing a constructive trust for Creel’s property; and the chancellor erred in changing the substance of his final judgment in response to Vincent’s motion for reconsideration or, in the alternative, a new trial without allowing Vincent a chance to put on proof and rebut the new ruling of modification pursuant to Mississippi Rule of Civil Procedure 59(e). Vincent also claims the chancellor’s final judgment is so vague that Vincent cannot understand which deed the chancellor is setting aside. Finding error, we agree.

¶ 8. Based on our review, we find the chancellor erred in establishing a constructive trust for the property at issue. We also find that when the chancellor voided Vincent’s title to the property and set the deed aside due to undue influence and fraud, the chancellor failed to distinguish between the two relevant but distinct conveyances between differing parties — one of which established the pre-existing joint ownership prior to the quitclaim deed from Creel to Vincent that was allegedly the result of undue influence.

STANDARD OF REVIEW

¶ 9. A chancellor’s findings “are subject to an abuse-of-discretion standard of review.” Carlisle v. Allen, 40 So.3d 1252, 1256 (¶ 20) (Miss.2010) (citing Barton v. Barton, 790 So.2d 169, 175 (¶ 17) (Miss.2001)). “This Court will not disturb a chancellor’s findings of fact in a will contest unless the findings are clearly erroneous, manifestly wrong, or the chancellor applied an incorrect legal standard.” In re Estate of Thornton v. Thornton, 922 So.2d 850, 852 ( ¶6) (Miss.Ct.App.2006). However, we apply a de novo standard of review to a question of law. Id.

DISCUSSION

¶ 10. Vincent argues that no evidence appears in the record to support the chancellor’s finding that he defrauded Creel or that he had any undue influence over Creel. Vincent also claims that no evidence existed to support the finding that Creel lacked any mental or physical capacity at the time she deeded her interest in the Henley property to Vincent. We disagree. Creel presented sufficient evidence to show a confidential relationship existed between Creel and Vincent. Thus, the chancellor’s decision to void the November 2004 quitclaim deed between Vincent and Creel is supported by substantial evidence. However, we find that although the chancellor properly set aside Creel’s November 2004 quitclaim deed to Vincent, Creel’s share of the property would nonetheless revert to Vincent, as the surviving joint owner, upon Creel’s death as a consequence of the pre-existing joint tenancy conveyed to Vincent and Creel by Stocks-till. In re Will and Estate of Strange v. Strange, 548 So.2d 1323, 1327-28 (Miss.1989). Therefore, we reverse the chancellor’s judgment which placed the property at issue in a constructive trust to be held by Creel’s estate, and we render a judgment recognizing Vincent as the sole owner of the property at issue.

¶ 11. We first turn to examine Vincent’s claim that the chancellor erred in voiding the November 2004 quitclaim deed between Vincent and Creel after a finding of undue influence over Creel. In establishing the validity of an inter vivos gift, the Mississippi Supreme Court has enumerated several factors to consider in determining whether a confidential relationship exists:

(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.

In re Estate of Dabney, 740 So.2d 915, 919 (¶ 12) (Miss.1999). If the chancellor finds that a confidential relationship exists between the grantee and grantor, the inter vivos gift — here, the deed to the Henley property — is presumptively invalid. In re Estate of Reid v. Pluskat, 825 So.2d 1, 5 (¶ 13) (Miss.2002). “[Ojnce the presumption of undue influence has been established, the burden of proof shifts to the ... grantee to show by clear and convincing evidence that the gift was not the product of undue influence.” Wright v. Roberts, 797 So.2d 992, 998 (¶ 16) (Miss.2001) (citing In re Estate of Dabney, 740 So.2d at 921 (¶ 20)).

¶ 12. In his April 2, 2010 final judgment, the chancellor applied the factors set forth in In re Dabney to determine whether a confidential relationship existed between Creel and Vincent. We pause to note that the chancellor did not apply these factors to the relationship between Vincent and Stockstill, a grantee and the grantor, respectively, regarding the October 2004 quitclaim deed. As a result, the chancellor did not set aside the pre-existing conveyance of joint tenancy to Vincent and Creel from Stockstill. The chancellor listed his findings as follows:

1. Requirement of Care: [Creel] was forced to leave the work force in 1997 because her vision had become so impaired. She was unable to drive herself, and was forced to move into her mother’s residence so that her mother would be able to care for her as her condition continued to deteriorate. At the time the deed was executed, [Creel] had lost a substantial amount of her eyesight and was on dialysis for kidney failure.
2. Close relationship: [Vincent] and [Creel] maintained a very close relationship for nine years. Although [Creel] stated in her deposition that the two were never romantically involved, she admitted that their relationship did result in at least a few overnight stays at one of [Creel’s] residences. Sometimes these overnight stays would last up to three days.
3. Providing Transportation and Medical Care: [Creel] had not been able to drive herself since 1997. She relied on others to drive her to places, including medical appointments. She was also very vulnerable and afraid of creditors, to the point that she began deeding her property to her mother for fear that she would be unable to pay her rising medical bills. In fact, [Vincent] had picked her up and driven her to the undisclosed location where [Creel] signed the deed conveying the property to him.
4. Maintaining Joint Accounts: [Vincent] and [Creel] never co-habitated, nor did they ever share any joint accounts.
5. Physical or Mental Weakness: [Creel] was sick with kidney failure, nearly blind, unable to drive, and on dialysis at the time the deed to [Vincent] was signed. To compound matters, [Creel] had also recently been scammed by falling victim to contractor fraud, which resulted in a financial loss to her of approximately $10,000. She was desperate at the time of the execution, and had trusted [Vincent] completely.
6. Advanced Age or Poor Health: Again, [Creel] had been extremely sick with diabetes, and her condition had continued to deteriorate. As stated above, she was suffering from kidney failure and blindness, among other debilitating ailments resulting from severe diabetes.
7. Power of Attorney: [Creel] granted her mother Power of Attorney over her affairs in the summer of 2004 because she felt she was no longer able to handle her day[-]to[-]day affairs.

The chancellor ultimately determined that the elements evidencing a confidential relationship resulting in the presumption of undue influence between Creel and Vincent were met. We therefore find no abuse of discretion or error in setting aside the November 2004 quitclaim deed from Creel to Vincent. As stated, to overcome the presumption of undue influence, Vincent must show the following: (1) good faith on the part of the grantee/beneficiary; (2) grantor’s/testator’s full knowledge and deliberation of her actions and their consequences; and (3) independent consent and action by the grantor/testator. Wright, 797 So.2d at 999 (¶ 23).

¶ 13. In examining whether Vincent provided enough clear-and-convincing evidence to successfully rebut the presumption, the chancellor held that Vincent had actively participated in the preparation of the deed which conveyed Creel’s share of the Henley property to him. The record before us supports the chancellor’s findings that Vincent failed to show good faith in his actions and indeed intended to defraud Creel. We find the record replete with observations and statements regarding Creel’s extreme health problems and deteriorating condition. Additionally, Creel’s deposition reflects that she never intended to give Vincent a half interest in the Henley property. Creel also stated that Vincent refused to perform any repair work on the home until Creel put the deed in Vincent’s name. Creel explained that Vincent assured her that he would sign the deed back over to her once he completed the repair work.

¶ 14. Additionally, the record reflects that Creel never received any advice from independent counsel, and the chancellor also stated that “[t]here was absolutely no consideration or fee paid for this transaction.” However, in our review of the record, we find that the deed in fact states that Vincent paid the sum of ten dollars’ cash “and other good and valuable considerations” in consideration for the conveyance of the property. The chancellor’s findings of fact show that Creel paid $60,000 for the property at issue — $30,000 for the home and $30,000 for the land. As the chancellor acknowledged, the supreme court has held that “if the inadequacy of consideration is so glaring as to stamp the transaction with fraud and to shock the common sense of honesty, a court of equity will intervene. If the consideration is grossly inadequate, equity in any case will lay hold of slight circumstances of oppression, fraud, or duress in order to rescind the conveyance.” Bethea v. Mullins, 226 Miss. 795, 804, 85 So.2d 452, 456 (1956). The chancellor also noted the suspicious circumstances and conflicting testimony regarding the transaction between Vincent and Creel; as a result, he ultimately held that Vincent failed to rebut the presumption of undue influence. See In re Estate of Thornton, 922 So.2d at 852 (¶ 6). We find no error in the chancellor’s findings with respect to voiding the November 2004 quitclaim deed.

¶ 15. However, we find the chancellor erred in setting aside Vincent’s title to the property after voiding the November 2004 quitclaim deed in which Creel deeded her share of the joint tenancy to Vincent. Although the chancellor voided the November 2004 quitclaim deed, he failed to set aside the pre-existing joint tenancy established by the October 2004 deed. As a result, the prior conveyance in October 2004 from Stockstill to both Creel and Vincent as joint tenants with right of survivorship remained a valid conveyance. This valid conveyance of a joint tenancy, thus, results in Vincent’s sole ownership of the property at issue due to Creel’s death. In re Will and Estate of Strange, 548 So.2d at 1327-28. The chancellor provided no findings that reflected that Vincent defrauded or unduly influenced Stockstill to obtain the October 2004 deed conveying the property to Vincent and Creel as joint tenants. Id. We also find that no evidence of fraud or undue influence between Stockstill and Vincent can be gleaned from the record.

¶ 16. Creel, one of the joint tenants, is now deceased. Our supreme court has reiterated that property held by the decedent in a joint tenancy with right of survivorship is not a part of the decedent’s estate; rather, it passes to the survivor 2011 WL 2536174 upon the decedent’s death. Id.; see also Estate of Roby, 2010-CA-00639-COA, 4 (¶ 11) (Miss. Ct.App. June 28, 2011). Thus, under Mississippi law, upon Creel’s death, her rights passed as a matter of law to the remaining joint tenant, Vincent. In re Estate of Baker, 760 So.2d 759, 761 (¶ 6) (Miss.2000); Oliver v. Oliver, 812 So.2d 1128, 1133 (¶ 17) (Miss.Ct.App.2002). As stated, setting aside the subsequent November 2004 quitclaim deed between Creel and Vincent fails to affect the validity of the previous and distinct conveyance by Stockstill to both Creel and Vincent as joint tenants with right of sur-vivorship in October 2004.

¶ 17. The clean-hands doctrine “prevents a complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in the transaction at issue.” Bailey v. Bailey, 724 So.2d 335, 337 (¶ 6) (Miss.1998). Accordingly, those who use the law to shield themselves from their legal responsibility to creditors or to defraud others cannot then use the law to seek relief. Equity does not provide relief from an undesirable outcome for the practice of circumvention of laws or conveying property to circumvent laws to create a legal facade to circumvent efforts of creditors. The record reflects Creel quitclaimed the Henley property to Stockstill on September 1, 2004, in an effort to protect the property from creditors. The record also shows that Creel granted her mother power of attorney on September 1, 2004, the same day that Creel deeded the property to her mother. By a separate and subsequent conveyance, on October 18, 2004, Stockstill executed a quitclaim deed to both Vincent and Creel, deeding the property to them as joint tenants with full right of survivorship, and now Stockstill on behalf of Creel’s estate, seeks relief from her previous conveyance of the property.

¶ 18. We further find that Stockstill failed to establish proof of a constructive trust upon setting aside of the November 2004 quitclaim deed, since Creel and Vincent already owned the property as joint tenants with right of survivorship. In re Strange, 548 So.2d at 1327-28. Stockstill also failed to show any evidence of fraud, duress, or unconscionable conduct toward her by Vincent affecting the validity of her prior conveyance in October 2004 of the property to Vincent and Creel. We have held that “[a] constructive trust is a fiction of equity created for the purpose of preventing unjust enrichment by one who holds legal title to property which, under principles of justice and fairness, rightfully belongs to another”; equity does not relieve Stockstill of meeting the burden of proving a constructive trust, by clear-and-convincing evidence, due to fraud, undue influence, duress, or unconscionable conduct affecting the validity of her own conveyance of joint tenancy in October 2004 to Vincent and Creel. McNeil v. Hester, 753 So.2d 1057, 1064 (¶ 24) (Miss.2000) (citing Allgood v. Allgood, 473 So.2d 416, 421 (Miss.1985)). We therefore reverse the chancellor’s decision to place the property at issue in a constructive trust to be held by Creel’s estate. See In re Last Will and Testament and Estate of Dunn v. Reilly, 784 So.2d 935, 942 (¶ 20) (Miss.2001); Wright v. O’Daniel, 58 So.3d 694, 698 (¶ 21) (Miss.Ct.App.2011). Based on the resolution of this issue, we find no need to analyze Vincent’s remaining issues.

¶ 19. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

LEE, C.J., BARNES, ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ., CONCUR. IRVING AND GRIFFIS, P JJ., CONCUR IN PART AND IN THE RESULT. FAIR, J., NOT PARTICIPATING.

      . Beverly Stockstill and Clinton Creel, Creel’s father, are the appellees in this appeal.

      . In his brief, Vincent also claims that he provided the following consideration for the conveyance of the deed: (1) listing Creel as the sole beneficiary of his will, (2) nine years of "being together,” and (3) "doing the things a man does for a woman.”

      . This opinion is currently still subject to revision or withdrawal.


text:
    Victor SIMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01574-COA.
    Court of Appeals of Mississippi.
    Feb. 14, 2012.
    Leslie S. Lee, Jackson, Benjamin Allen Súber, John Anthony Piazza, attorneys for appellant.
    Office of the Attorney General, by John R. Henry Jr., attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. Victor Sims was convicted of felony shoplifting and sentenced by the Jones County Circuit Court to a term of five years in the custody of the Mississippi Department of Corrections (MDOC). The crime of shoplifting in this case was Sims’s third shoplifting offense. See Miss.Code Ann. § 97-28-93(6) (Rev.2006).

¶ 2. On appeal, Sims raises two issues: the trial court erred in declining to sustain his motion for a new trial based on juror misconduct, and the court erred in denying his motion for a new trial because the verdict is against the overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 3. Sims entered Hudson’s Salvage (Hudson’s) in Laurel, Mississippi, and stole two shirts. According to the testimony of Randy Williamson, one of Hudson’s security officers on duty, he saw Sims remove two shirts from their hangers and put them down the front of his pants. Sims then wandered around the store before walking into the parking lot. Williamson followed Sims into the parking lot and identified himself as Hudson’s security officer and asked Sims to stop. Rather than stop, Sims started to run. Williamson chased Sims on foot for approximately a quarter of a mile. Williamson also said Sims ran into an alley and then went inside a small shed.

¶ 4. Rayford Taylor, another Hudson’s security officer, testified that he went to the front of the store after Williamson called him on his cell phone and told him there was a shoplifter. Taylor stated that it was Hudson’s policy that security personnel only apprehend shoplifters once they are outside the store. According to Taylor, once they were outside, Taylor and Williamson identified themselves as Hudson’s security officers and asked Sims to stop and come back inside the store. Sims started running. Taylor then notified the Laurel Police Department of the shoplifting and took chase after Sims. According to Taylor, he chased Sims on foot and pursued Sims using Taylor’s personal vehicle before Sims was finally apprehended by the police. Taylor testified that he and Williamson located the stolen merchandise underneath a board or box in the shed where Sims was found.

¶ 5. Officer Mark Brewer of the Laurel Police Department testified that he was dispatched to Hudson’s. Officer Brewer was informed that Hudson’s security officers were chasing a man who had stolen two shirts from the store. Based on the description of the shoplifter he had been provided, Officer Brewer located Sims and began chasing him and called out for him to stop. At this point, the officer chased Sims for approximately a block and a half before catching him. Officer Brewer then placed Sims under arrest for failing to obey a lawful command and for shoplifting. On cross-examination, the officer testified that he did not find any Hudson’s merchandise on Sims when he placed Sims under arrest.

¶ 6. Investigator Michael Reaves of the Laurel Police Department testified that he was called to Hudson’s on the shoplifting complaint and met with Hudson’s security officers, Williamson and Taylor. Investigator Reaves took photographs of the merchandise that had been taken from the store. According to the investigator, he found records at the police station that showed Sims had two previous shoplifting convictions.

¶ 7. Sims did not call any witnesses in his defense, and his motion for a directed verdict was overruled. Sims was subsequently found guilty of felony shoplifting and sentenced to five years of imprisonment in the custody of the MDOC.

DISCUSSION

1. Juror Misconduct

¶ 8. Sims contends that after the trial, he realized he knew one of the female jurors. Sims alleges he did not recognize the juror’s name, and he had last seen her ten years ago. Sims stated in his affidavit that he had gotten into an argument with the juror approximately ten years ago and believed the juror harbored animosity toward him.

¶ 9. At the hearing on the motion for a new trial, the juror in question testified she did not know Sims or his family. The circuit court overruled Sims’s motion for a new trial.

¶ 10. On appeal, Sims argues the juror failed to disclose during voir dire that she knew him. This argument is contradicted by the juror’s testimony at the hearing on Sims’s motion for a new trial. She specifically testified she did not know Sims. The only evidence to support Sims’s claim is Sims’s affidavit, which was based in part on the information and belief of an unnamed friend. Neither Sims nor his unnamed friend testified at the hearing on the motion for a new trial.

¶ 11. The authority cited by Sims in his brief is not relevant to this case. In this case, there was no evidence of juror misconduct or a juror’s failure to answer a “relevant, direct, and unambiguous question presented by defense counsel on voir dire.” Odom v. State, 355 So.2d 1381, 1383 (Miss.1978).

¶ 12. This assignment of error is without merit.

2. The Weight of the Evidence

¶ 13. The standard of review we apply when considering the trial court’s ruling on a post-trial motion is abuse of discretion. Dilworth v. State, 909 So.2d 731, 736 (¶ 17) (Miss.2005) (citing Howell v. State, 860 So.2d 704, 764 (¶212) (Miss.2003)). “A motion for new trial challenges the weight of the evidence. A reversal is warranted only if the lower court abused its discretion in denying a motion for a new trial.” Id,, at 737 (¶ 20) (quoting Howell, 860 So.2d at 764 (¶212)). “Only in ‘exceptional cases in which the evidence preponderates heavily against the verdict’ should the trial court invade the province of the jury and grant a new trial.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)).

¶ 14. There was testimony from Williamson that he saw Sims hide two shirts in his pants. Sims left the store without paying for the shirts. Sims refused to stop for the two Hudson’s security officers and a police officer. The two shirts, which had tags from Hudson’s attached, were found in the shed where Sims had recently hidden.

¶ 15. Sims seems to be particularly concerned no security camera footage was shown at trial. Williamson testified the purpose of the security cameras was “if the store gets robbed, armed robbery.” Williamson also testified there was no security camera footage “in the area where Mr. Sims was.” Taylor also testified “there was no video of that incident.”

¶ 16. The testimony of the two security officers was more than sufficient to establish Sims’s guilt, along with the testimony of the police officer concerning Sims’s arrest. In overruling the motion for a new trial, the trial court correctly found that the jury verdict was not a “substantial miscarriage of justice.” Kelly v. State, 910 So.2d 535, 539 (¶ 12) (Miss.2005) (citing Simmons v. State, 722 So.2d 666, 674 (Miss.1998)).

¶ 17. There is no merit to this assignment of error.

¶ 18. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT OF CONVICTION OF FELONY SHOPLIFTING AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO JONES COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.