author: RUSSELL, J.,

text:
    Thomas Earl AUSTIN, Jr. a/k/a Thomas Earl Austin, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00361-COA.
    Court of Appeals of Mississippi.
    May 29, 2012.

      Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.
    Office of Attorney General by W. Glenn Watts, attorneys for appellee.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Thomas Austin appeals the Lowndes County Circuit Court’s denial of his motion for a judgment notwithstanding the verdict (JNOV) or a new trial. He argues the circuit court erred in finding that the evidence was sufficient to support his conviction of felon in possession of a weapon under Mississippi Code Annotated section 97-37-5 (Supp.2011). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 30, 2009, Austin was indicted on three counts of possession of a weapon by a convicted felon and four counts of armed robbery. Counts III through VII were retired to the file in accordance with the recommendation of the State.

¶ 3. On May 26, 2010, the jury found Austin guilty of Count I, felon in possession of a Benelli 12-gauge shotgun, and the circuit court sentenced him as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007) to ten years in the custody of the Mississippi Department of Corrections (MDOC). The jury was unable to reach a unanimous verdict as to Count II, felon in possession of a .45-caliber handgun. On February 22, 2011, Austin was retried and found guilty of Count II. He was sentenced to serve ten years in the custody of the MDOC, with the sentence on Count II to run consecutively with his sentence on Count I.

¶ 4. On March 12, 2009, Officer Lance Luckey, the arresting officer, was on patrol for the Columbus Police Department. According to Officer Luckey, while sitting at the stop sign at the corner of 11th Street South and 5th Avenue, he observed a maroon Chevy Lumina approaching in his direction and noticed that none of the occupants were wearing a seat belt. Officer Luckey then initiated a traffic stop, turned his blue lights on, turned around, and stopped the vehicle on 4th Avenue South. Officer Luckey approached the vehicle and asked the driver for his driver’s license. The driver, who was identified as Austin, advised Officer Luckey that he did not have a driver’s license. Officer Luck-ey informed him that the reason for the traffic stop was that the occupants of the vehicle were not wearing seat belts.

¶ 5. Officer Luckey asked Austin for his social security number to check his driver’s license status and for warrants. While Officer Luckey performed these checks, Officer Kelvin Lee pulled up to assist Officer Luckey. Officer Luckey then went back to the car and allegedly smelled marijuana smoke. At that point, he asked Austin if there was anything in the vehicle he needed to know about. Austin responded negatively and gave Officer Luckey permission to search the vehicle. All of the passengers exited the vehicle.

¶ 6. Officer Luckey began to search the vehicle while Officer Lee stood outside the vehicle with the occupants. Inside the vehicle, Officer Luckey found marijuana leaves in the carpet. He also found an open container of beer. Officer Luckey then went to the rear of the vehicle to search the trunk. Prior to the trunk being opened, Austin advised Officer Luckey that there was a weapon in the trunk. Upon searching the trunk, Officer Luckey found a 12-gauge shotgun. Officer Luck-ey testified that the shotgun was inoperable because there was a 20-gauge shell lodged in the chamber, and the shell was too small to activate the firing pin.

¶ 7. Officer Luckey then noticed a green and white toiletry bag in the trunk that, in his opinion, felt heavier than it should have. When he opened the bag, he found a .45-caliber handgun. He testified that the handgun was operable. Officer Luck-ey testified that a magazine was needed to fire shots and there was no magazine found in the vehicle.

¶ 8. Officer Lee advised Officer Luckey that Austin was a convicted felon. When questioned, Austin admitted to being a felon. All three occupants were then placed in handcuffs and told to sit on the sidewalk.

¶ 9. Officer Luckey called Investigator Terry Dentry to investigate the scene. Investigator Dentry testified that because he did not try to fire the handgun, he did not know whether it was inoperable. However, there was no magazine found in the gun.

¶ 10. Austin testified that the shotgun recovered from his car belonged to his stepfather, and Austin had possession of it since January. Austin further testified that shortly before the traffic stop, he found the handgun in a ditch, cleaned it off, and placed it in the toiletry bag.

¶ 11. On February 23, 2011, Austin was convicted on Count II of the indictment and sentenced as a habitual offender to serve ten years in the custody of the MDOC. The same day, Austin filed a motion for JNOV or a new trial. The circuit court denied the motion. Austin appeals his conviction of Count II only.

DISCUSSION

I. Sufficiency of the Evidence

¶ 12. A motion for JNOV challenges the sufficiency of the evidence. “[T]his Court must ask whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Curry v. State, 939 So.2d 785, 790 (¶ 18) (Miss.2006) (citing Bush v. State, 895 So.2d 836, 842-45 (Miss.2005)). “The proper remedy for a verdict based on insufficient evidence is for this Court to reverse and render.” Id.

¶ 13. Section 97-37-5(1) of the Mississippi Code Annotated (Supp.2011) states:

It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm ... unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the United States Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.

¶ 14. In this case, no one disputes that Austin was a previously convicted felon and aware of the presence and character of the .45-caliber handgun found. In fact, he admitted to intentionally and consciously possessing the firearm. Austin’s only argument is that there was insufficient evidence for finding that he possessed an operable firearm.

¶ 15. On direct examination, Officer Luckey testified in relevant part:

A: Mr. Austin had to open the trunk for me, and as he walked up to the vehicle, he advised that there was indeed a weapon in the vehicle.
Q: Now, you opened the trunk. What did you find?
A: I opened the trunk and there laying [sic] in the trunk was a 12-gauge shotgun.
Q: So the shotgun was inoperable, is what I’m hearing correct?
A: Correct. It had a shell stuck in it.
Q: And the — you said you continued to search the trunk, and you said you found a bag. What kind of bag?
A: I found a green and white toiletry bag, basically what it was.
A: He said he found it in a ditch. And that’s when I opened it up and discovered the handgun.
Q: That is, in fact, a .45 caliber weapon that you found in the trunk in that green sack, is that correct?
A: It is.
That firearm is, in fact, a functioning firearm? <©
It is. Yes, it is. i>
How do you know that? <©
All the moving mechanisms of the gun work. The slide works[;] you can rack it back[;] you can pull the hammer baek[;] you can squeeze the trigger[;] and it activates the hammer. The safety works. All it needs is a magazine put in it to fire — to fire the shots. !>
Now, when you' found the weapon, was there, in fact, a magazine in it? O
No, there was not.

¶ 16. Austin relies on Burnside v. State, 105 Miss. 408, 62 So. 420 (Miss.1918), where the defendant was convicted of carrying a concealed weapon. The court found that “it is shown that [the gun] could not be loaded, unloaded, or fired; that it was rusty, could not be made to open, to work, to cock, and was filled with dirt.” Id. The court held: “we conclude that it cannot now be called a pistol. In this case the object once a pistol is not temporarily inefficient, but is permanently inefficient.” Id.

¶ 17. Unlike Burnside, the gun in this case was not permanently inefficient. Officer Luckey testified that all the moving mechanisms of the gun worked and that only a magazine was needed to fire it. Pictures of the gun as well as the actual gun were shown to the members of the jury. While there was no magazine found in the toiletry bag, trunk, or car, the gun found was nevertheless a “firearm” for statutory purposes. See Miss.Code Ann. § 97-37-5(1).

¶ 18. There is no statutory requirement that a firearm be properly loaded when found with a previously convicted felon. Mississippi Code Annotated section 41-29-152(2) (Rev. 2009) provides: “ ‘Firearm’ means any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” Austin offered no evidence that the firearm found in the trunk was not designed to expel a projectile. Nor did he offer any evidence to show that it could not readily be converted to do so. The evidence presented through testimony, photographs, and the gun itself support the verdict reached in this case that Austin was a convicted felon and had in his possession a .45-caliber handgun.

II. Overwhelming Weight of the Evidence

¶ 19. A motion for a new trial challenges the weight of the evidence. In reviewing challenges to the weight of the evidence, the Mississippi Supreme Court has held:

[T]his [Cjourt must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this [Cjourt disturb it on appeal. Thus, the scope of review on this issue is limited in that all evidence must be construed in the light most favorable to the verdict.

Lee v. State, 910 So.2d 1123, 1128-1129 (¶ 22) (Miss.2005). In his post-trial motion, Austin claimed that the jury verdict was against the overwhelming weight of the evidence. Austin did not raise this issue on appeal. Therefore, it is procedurally barred.

¶ 20. For the foregoing reason, we affirm the judgment of the Lowndes County Circuit Court of conviction of Count II.

¶ 21. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF COUNT II, FELON IN POSSESSION OF A FIREARM, AND SENTENCE OF TEN YEARS AS A HABITUAL OFFENDER WITH THE SENTENCE TO RUN CONSECUTIVELY WITH ANY OTHER SENTENCE, ALL 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 LOWNDES COUNTY.

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

      . Austin previously appealed his conviction of Count I, and this Court affirmed. See Austin V. State, 72 So.3d 565, 570 (¶ 16) (Miss.Ct.App.2011).

      . The vehicle belonged to Austin’s girlfriend.


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    Jonathan HICKMAN, Appellant v. CITIBANK (SOUTH DAKOTA), N.A., Appellee.
    No. 2010-CP-02034-COA.
    Court of Appeals of Mississippi.
    May 29, 2012.

      Jonathan Hickman, appellant, pro se.
    John S. Simpson, Ridgeland, Michele C. Arnold, attorneys for appellee.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On July 16, 2009, Citibank (South Dakota), N.A. fíled a complaint in the Marshall County Circuit Court against Jonathan Hickman, seeking recovery of a delinquent credit card debt totaling $2,299.20. Citibank also sought post-judgment interest at a rate of 8%, attorney’s fees of $766.40, and all court costs. On May 5, 2010, Citibank filed a motion for summary judgment. The circuit court granted the motion, awarding Citibank the principal amount of $2,299.20; plus post-judgment interest at a rate of 8% per year; and all court costs. ' The circuit court also awarded $2,000 in attorney’s fees, which exceeded the amount requested in Citibank’s complaint.

¶ 2. Feeling aggrieved, Hickman appeals and raises several issues on appeal. In the interest of clarity, we have consolidated the issues as follows: (1) whether the circuit court erred in granting summary judgment and (2) whether the circuit court abused its discretion in awarding additional attorney’s fees.

¶ 3. Based on the facts of this case, the circuit court did not err in granting summary judgment or in awarding attorney’s fees. However, the amount of attorney’s fees awarded was unreasonable. Therefore, we affirm' the circuit court’s judgment as modified.

FACTS

¶ 4. The style of the case in Citibank’s complaint listed Hickman as the defendant; however, the complaint’s prayer for relief erroneously listed “Jonathan Carpenter” as the defendant. Hickman filed an answer and a motion to dismiss, arguing for the dismissal of Citibank’s complaint based on the typographical error in the prayer for relief. Following a hearing, the circuit court denied Hickman’s motion to dismiss.

¶ 5. On April 7, 2010, Citibank served Hickman with discovery in the form of interrogatories, requests for production of documents, and requests for admissions. Hickman failed to respond to any of Citibank’s discovery requests. Having received no response to its discovery requests, Citibank filed a motion for summary judgment. It also filed a motion to amend its complaint and attached a copy of the proposed amended complaint as an exhibit. In the proposed amended complaint, Citibank changed the name in the prayer to “Jonathan Hickman.” The proposed amended complaint was identical to the original complaint in all other respects.

¶6. On October 14, 2010, the circuit court held a hearing on Citibank’s motion to amend its complaint and its motion for summary judgment. Hickman appeared pro se and stated that he had received a copy of the proposed amended complaint. However, he stated that he believed that Citibank’s amendment of the complaint meant that his case “startled] over brand new,” entitling him to additional time to prepare his defense and respond to discovery. The court acknowledged that it had continued the case to allow Citibank to amend its complaint. However, the court explained that its continuation of Hickman’s case for the limited purpose of amending the complaint did not effect the deadlines for responding to discovery.

¶ 7. The circuit court ruled in favor of Citibank based on Hickman’s failure to respond to discovery. The court also awarded attorney’s fees of $2,000, which was in excess of the amount requested in Citibank’s complaint. The court stated that the additional amount was intended to compensate the attorney for time spent traveling to hearings and other matters during the pendency of the case.

¶ 8. Additional facts, as necessary, will be related in our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Summary Judgment

¶ 9. An appellate court reviews a circuit court’s decision to grant or deny a motion for summary judgment de novo. Young v. Smith, 67 So.3d 732, 741 (¶ 18) (Miss.2011). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories[,] and admissions on file, together with the affidavits, if any, show 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. (quoting M.R.C.P. 56(c)).

¶ 10. Hickman argues that the circuit court erred in granting summary judgment in favor of Citibank based on his failure to respond to discovery requests. Specifically, Hickman contends that the circuit court’s continuation of the case meant that he' did not have to respond to the discovery requests until after Citibank filed its amended complaint. We disagree.

¶ 11. Citibank amended its complaint for the sole purpose of correcting a party-name error in the complaint’s prayer for relief. The Mississippi Supreme Court has consistently recognized that “the doctrine of misnomer allows parties to correct party-name errors if doing so would not result in prejudice.” Scaggs v. GPCH-GP, Inc., 23 So.3d 1080, 1083 (¶ 9) (Miss.2010) (citations omitted). “If the effect of an amendment of a pleading is merely to correct the name of a person, and the proper party is actually in court, as where process has actually been served on the true defendant, or he has appeared and defended or otherwise submitted himself to the jurisdiction of the court, there is no prejudice.” Id. (quoting 67A C.J.S. Parties § 237 (2002)). “In sum, under Mississippi law, an amendment is permitted so long as the evidence does not suggest that the misnomer misled the parties into thinking that another party was meant.” Rich v. Nevels, 578 So.2d 609, 612 (Miss.1991) (internal citations and quotations omitted).

¶ 12. It is undisputed that the style of the complaint correctly identified Hickman as the defendant. Additionally, Citibank’s statement of account, which'was attached as an exhibit to the complaint, lists Hickman as the account holder. Finally, the summons issued correctly identified Hickman as the defendant, and Hickman appeared in court to defend his case. Based on these facts, we fail to see how the misnomer in the prayer could have misled Hickman. The style of the complaint, the exhibits, and the summons all correctly identified Hickman as the defendant and were sufficient to notify him that he was being sued by Citibank.

¶ 13. The circuit court’s decision to continue the case for the limited purpose of allowing Citibank to amend its complaint to correct the misnomer in the prayer did not extend the discovery deadlines or hold discovery in abeyance. Additionally, Hickman cites no authority for his argument that the circuit court’s continuance of the case to allow Citibank to amend its complaint automatically tolled the time limit for responding to discovery, and we are aware of none.

¶ 14. Because Hickman failed to respond to Citibank’s requests for admissions, the circuit court deemed the subject requests admitted. See M.R.C.P. 36(a). Matters admitted are “conclusively established unless the court on motion permits withdrawal or amendment of the admission[s].” M.R.C.P. 36(b). Hickman never filed a motion to withdraw or amend the admissions. Consequently, Hickman admitted that he had applied for a credit card with Citibank, made charges on the account, and failed to pay the outstanding balance of $2,299.20. Our supreme court has stated that “a matter that is deemed admitted does not require further proof.” Young, 67 So.3d at 742 (¶ 22) (quoting DeBlanc v. Standi, 814 So.2d 796, 801 (¶25) (Miss.2002)). Based on Hickman’s deemed admissions, no genuine issues of material facts remained, and the circuit court did not err in granting summary judgment in favor of Citibank.

2. Attorney’s Fees

¶ 15. Hickman argues that the circuit court erred in awarding attorney’s fees of $2,000, which exceeds the amount requested in Citibank’s complaint. An appellate court reviews a circuit court’s decision to award attorney’s fees for abuse of discretion. Par Indus. v. Target Container Corp., 708 So.2d 44, 54 (¶ 26) (Miss.1998). Citibank filed suit to collect a delinquent credit card debt-an open account. The Mississippi Legislature has specifically provided for attorney’s fees in suits to collect an open account provided that certain requirements are met:

When any person fails to pay an open account within thirty (30) days after receipt of written demand therefor correctly setting forth the amount owed and an itemized statement of the account in support thereof, that person shall be liable for reasonable attorney’s fees to be set by the judge for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the plaintiff.... If that person sued on the open account shall prevail in the suit, he shall be entitled to reasonable attorney’s fees to be set by the judge.

Miss.Code Ann. § 11-53-81 (Rev. 2002). Citibank submitted a demand letter to Hickman that fulfilled the requirements set forth in section 11-53-81, and the circuit court granted summary judgment in favor of Citibank. Therefore, Citibank was entitled to an award of reasonable attorney’s fees. The Legislature has provided guidance regarding what constitutes a reasonable fee as follows:

In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided[,] however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.

Miss.Code Ann. § 9-1-41 (Rev. 2002). In this case, Citibank’s attorney submitted an affidavit averring that $766.40 was a reasonable fee commensurate with the amount of work associated with a debt-collection case and similar to fees charged by other attorneys doing the same type of work. However, at the hearing on the motion for summary judgment, the circuit court determined that $2,000 was a reasonable fee based on the fact that Citibank’s attorney was required to travel from Jackson, Mississippi, to Marshall County and Union County during the pendency of the case.

¶ 16. While an award of attorney’s fees is left largely to the sound discretion of the circuit court, an appellate court “does not leave the reasonableness of an award ... to the arbitrary discretion of the [circuit court].” Par Indus., 708 So.2d at 54 (¶ 28). In fact, our supreme court has established a rebuttable presumption that “an award of one-third [of] the amount of the indebtedness in collection matters is reasonable.” Id. (quoting DynaSteel Corp. v. Aztec Indus., 611 So.2d 977, 987 (Miss.1992)). Here, Citibank recovered $2,299,20, and it sought attorney’s fees of $766.40, which is one-third of the recovered amount. However, the circuit court awarded $2,000 in fees — nearly the entire amount of the recovery. We see no basis for the increased award where the attorney’s fees that Citibank originally requested were presumptively reasonable, and there was no effort to rebut that presumption. Accordingly, we affirm the circuit court’s award of attorney’s fees but reduce the amount awarded to $766.40.

¶ 17. THE JUDGMENT OF THE MARSHALL COUNTY CIRCUIT COURT IS AFFIRMED AS MODIFIED. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE APPELLEE.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . The exhibits attached to the complaint include a statement of account from Citibank and a demand letter from Citibank's attorneys. The statement of account lists Hickman as the account holder and the demand letter is addressed to Hickman.

      . Based on our review of the record, it is unclear when the circuit court continued the case. The record does not contain a transcript of the hearing on the motion to dismiss, and the order denying the motion does not discuss a continuance of the case. Suffice it to say, the circuit court instructed Citibank to amend its complaint to correct the prayer at some point prior to Citibank's filing its motion to amend.

      . Our supreme court has considered a similar argument in the context of motions to transfer. See Earwood v. Reeves, 798 So.2d 508, 515 (¶21) (Miss.2001). In Earwood, the supreme court rejected the argument that filing a motion to transfer automatically tolled the deadlines for responding to discovery. Id.

      . Our supreme court has defined an open account as "an account based on continuing transactions between the parties which have not been closed or settled but are kept open in anticipation of further transactions.” Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908, 914-15 (Miss.1993) (citing Westinghouse Credit Corp. v. Moore & McCalib, Inc., 361 So.2d 990, 992 (Miss.1978)).


text:
    Katherine THOMPSON, Appellant v. ECHOSTAR COMMUNICATIONS CORP. d/b/a Dish (Digital Sky Highway) Network, Tracking Enterprizes, Inc., and Echostar, Inc., Appellee.
    No. 2010-CA-01993-COA.
    Court of Appeals of Mississippi.
    May 29, 2012.

      Daniel M. Czamanske Jr., attorney for appellant.
    Brian B. Hannula, Edwin S. Gault Jr., Caroline M. Upchurch, Jackson, attorneys for appellee.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On April 10, 1998, Katherine Thompson’s home was destroyed by a fire allegedly caused by a defective satellite receiver designed, manufactured, and sold by Echostar Communications Corporation (Echostar). On November 1, 2000, Thompson and her husband, Jimmy Thompson, filed suit against Echostar alleging that it was liable for the fire because it designed and manufactured a satellite receiver that had a propensity to overheat and catch fire.

¶ 2. From July 19, 2005 to July 27, 2008, no action of record occurred in the case. On July 28, 2008, Thompson filed a supplemental designation of experts. In response, Echostar filed a motion to dismiss for failure to prosecute. The circuit court denied Echostar’s motion, but it ordered sanctions against Thompson and her attorneys. On September 27, 2010, Echostar filed a motion to exclude Thompson’s expert witness and a motion for summary judgment. The circuit court granted both motions.

¶ 3. Feeling aggrieved, Thompson appeals and argues that the circuit court erred in: (1) excluding her expert witness, (2) granting summary judgment in favor of Echostar, and (3) ordering sanctions against Thompson and her attorneys.

¶4. Because the circuit court erred in ordering sanctions against Thompson and her attorneys, we reverse and render the circuit court’s judgment as to that issue. As to the remaining issues, we affirm.

FACTS

¶ 5. The Thompsons were not at home when the fire started, and there were no witnesses to the fire. Jimmy testified during his deposition that, when they left home, the only appliances that were left on in the house were the satellite receiver and the television. Jimmy also testified that he had purchased the satellite receiver in 1990 or 1991 and that he had not had any problems with it until the fire in 1998. However, he testified that the receiver “stayed overly warm.”

¶ 6. Deputy Carl Rayfield Jr., of the Mississippi Department of Insurance/State Fire Marshal’s Office, investigated the fire. Deputy Rayfield testified that the extensive fire damage to the home prevented him from determining the fire’s exact origin. However, based on his investigation, he excluded the following as possible causes of the fire: the home’s natural gas, the breaker boxes, the stove, the hot-water heater, the clothes dryer, and defective wiring. Finally, Deputy Rayfield stated that he did not find any accelerant at the scene of the fire.

¶ 7. Thompson hired A.K. Rosenhan, a mechanical engineer and fire-protection-engineering consultant, as her expert witness. During his deposition, Rosenhan testified that he inspected the scene of the fire twice. Rosenhan stated that he had learned about the satellite receiver’s possible electrical problems from Jimmy, who had received the information from Marvin Lemley, a satellite technician. Lemley was not designated as an expert in this case. However, he offered testimony as a witness with experience beyond that of the average person in the area of electronics, having worked in the field for over fifty years.

¶ 8. Lemley testified during his deposition that he had sold and installed fifteen hundred satellite receivers over the course of twenty years. While he had only installed two satellite receivers like Thompson’s, he had serviced several hundred of them. Lemley noted that only the first generation satellite receivers had a propensity to overheat. Lemley admitted that he never worked on Thompson’s receiver, and that he did not know whether Thompson’s satellite receiver was from the first or second generation. Rosenhan testified that he reviewed the satellite receiver’s technical-service manual and confirmed Lemley’s statements concerning the receiver’s propensity to overheat. However, Rosenhan admitted that he did not run any tests to verify that Thompson had been experiencing the problems that Lemley had described.

¶ 9. Rosenhan hypothesized that the satellite receiver caused the fire, but he did not test his hypothesis using Thompson’s receiver or any similar receiver. Rosen-han also admitted that he could not exclude Thompson’s television or the home’s electrical outlets as possible sources of the fire. Additionally, Rosenhan further admitted that he did not know if Thompson’s satellite receiver contained the first or second generation power supply.

1110. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Exclusion of Expert Witness

¶ 11. Thompson argues that the circuit court erred in excluding Rosenhan’s opinions concerning the cause of the fire. The admission or exclusion of expert testimony is reviewed for abuse of discretion. Denham v. Holmes ex rel. Holmes, 60 So.3d 773, 783 (¶ 34) (Miss.2011). Thus, the circuit court’s decision will not be overturned unless it was arbitrary and clearly erroneous. Id. “For expert testimony to be admissible, it must be both relevant and reliable.” Id. at (¶ 36) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).

¶ 12. The Mississippi Supreme Court has held that “[ejxpert testimony admitted at trial must be based on scientific methods and procedures, not on unsupported speculation or subjective belief.” Hubbard ex rel. Hubbard v. McDonald’s Corp., 41 So.3d 670, 675 (¶ 16) (Miss.2010) (citing Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 928 (¶31) (Miss.2006)). Rule 702 of the Mississippi Rules of Evidence provides:

[A] witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The circuit court determined that Rosen-han had failed to follow the accepted rules of fire investigation. The court also noted that Rosenhan had not tested Thompson’s receiver or any similar receiver. Additionally, the court concluded that Rosenhan had failed to use objective standards in his investigation, and his opinion was not supported by sufficient facts and data. Accordingly, the court excluded Rosenhan’s testimony.

¶ 13. The circuit court did not abuse its discretion in excluding Rosenhan’s testimony. Rosenhan provided no testimony that would have assisted the court or the ultimate trier of fact in deciding whether or not the satellite receiver caused the fire. In fact, Rosenhan admitted that he was unable to rule out alternative causes of the fire. Additionally, even though Rosenhan hypothesized that the fire began with Thompson’s satellite receiver, he never tested the receiver or any similar receiver. Rosenhan’s opinion was largely drawn from his conversations with Jimmy and was not based on scientific data. Accordingly, this issue is without merit.

2. Summary Judgment

¶ 14. Thompson contends that the circuit court erred in granting summary judgment in favor of Eehostar after excluding Rosenhan’s testimony. Appellate courts review the grant or denial of summary judgment de novo. McKee v. Bowers Window & Door Co., Inc., 64 So.3d 926, 936 (¶ 27) (Miss.2011). Summary judgment is appropriate when “the pleadings, depositions, answers to interi’ogato-ries[,] and admissions on file, together with the affidavits, if any, show 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. (quoting M.R.C.P. 56(c)) (footnote omitted). Moreover, “[t]he moving party has the burden of demonstrating that no genuine issue of material fact[ ] exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Id. (quoting Covington County Sch. Dist. v. Magee, 29 So.3d 1, 4 (¶ 5) (Miss.2010)).

¶ 15. Thompson’s claim against Eehostar is a products-liability claim. Particularly, Thompson alleges that Ech-oStar designed and manufactured a defective satellite receiver. Products-liability claims are specifically governed by statute. Williams v. Bennett, 921 So.2d 1269, 1273 (¶ 13) (Miss.2006). To survive a motion for summary judgment in a products-liability case, the non-movant must show that the product was:

(1) “designed in a defective manner[”] (2) which rendered [the product] “unreasonably dangerous” to the [plaintiff]; (3) that the “defective and unreasonably dangerous condition proximately caused” the [plaintiffs] damages; (4) that the damages were not caused by an “inherent characteristic” of the [product] which “cannot be eliminated without substantially compromising the product’s usefulness or desirability” and which an “ordinary person” would recognize; (5) that [the defendant] knew or should have known of the “danger that caused the damage[”;] and (6) that “there existed a feasible design alternative that would have[,] to a reasonable probability!,] prevented the harm” without also “impairing the [product’s] utility, usefulness, practicality or desirability[.]”

McKee, 64 So.3d at 938 (¶ 31) (quoting Miss.Code Ann. § ll-l-63(a), (b), & (f) (Supp.2011)).

¶ 16. As the party requesting summary judgment, Eehostar carried the burden of persuading the circuit court that there were no genuine issues of material fact. We find that Eehostar met its burden. In its motion, Eehostar argued that Thompson could not produce evidence of a specific defect with her receiver. In support of its argument, Eehostar pointed out that neither Rosenhan nor Lemley had examined Thompson’s receiver, so neither could testify regarding the receiver’s defectiveness. Additionally, Eehostar alleged that Thompson could not produce reliable evidence that a defect in the receiver caused the fire. Although Rosenhan hypothesized that Thompson’s receiver overheated and started the fire, he admitted that he did not test his hypothesis and could not exclude alternative causes for the fire.

¶ 17. Thompson relied on Echostar’s creation of a second-generation power supply as evidence that the first-generation power supply contained defects. However, Thompson offered no evidence that the second-generation power supply was created in response to a problem with the first-generation power supply. Furthermore, she produced no evidence that her satellite receiver contained the allegedly defective first-generation power supply. Because Thompson failed to show that there were genuine issues of material fact, the circuit court did not err in granting summary judgment in Echostar’s favor. This issue is without merit.

3. Sanctions

¶ 18. Thompson argues that the circuit court erred in ordering sanctions against her and her attorneys because the court lacked the authority to award sanctions and the sanctions were unreasonable. Thompson also asserts that the circuit court erred in awarding attorneys’ fees to the successful litigant.

¶ 19. Echostar filed a motion to dismiss, pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure, based on Thompson’s failure to prosecute her case. Instead of dismissing her case, the circuit court assessed two types of sanctions against Thompson and her attorneys: costs and expenses associated with discovery and attorneys’ fees based on the outcome of the case. Appellate courts review a circuit court’s imposition of sanctions for abuse of discretion. Barrett v. Jones, Funderburg, Sessums, Peterson & Lee, LLC, 27 So.3d 363, 369 (¶22) (Miss.2009).

¶ 20. Thompson contends that because Rule 41(b) does not mention sanctions, the circuit court lacked the authority to impose sanctions. However, Thompson is mistaken. “A court has the inherent power to impose sanctions in order to protect the integrity of the judicial process.” Barrett, 27 So.3d at 370 (¶25) (citing Wyssbrod v. Wittjen, 798 So.2d 352, 368 (¶ 58) (Miss.2001)). Therefore, even though Rule 41(b) does not specifically mention sanctions, a court may impose lesser sanctions instead of dismissing a case for lack of prosecution. See Hoffman v. Paracelsus Health Care Corp., 752 So.2d 1030, 1034 (¶ 12) (Miss.1999). “Lesser sanctions include fines, costs, or damages against [a] plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.” Id. at 1035 (¶ 16) (quoting Wallace v. Jones, 572 So.2d 371, 377 (Miss.1990)).

¶ 21. While the circuit court had the power to impose sanctions rather than dismissing the case, Thompson should only be required to pay the reasonable expenses that Echostar incurred as a result of her failure to prosecute the case. However, these expenses should not include the costs associated with Rosenhan’s or Hem-ley’s depositions. Thompson designated Rosenhan and Lemley as witnesses in 2002. Therefore, any delay in deposing Rosenhan and Lemley was not a result of Thompson’s delay in prosecuting the case against Echostar.

¶ 22. Thompson also argues that the circuit court erred in awarding contingent attorneys’ fees to the successful litigant. Our supreme court has never, except in cases involving punitive damages, approved an award of attorneys’ fees to the successful litigant. Stockstill v. Gammill, 943 So.2d 35, 49 (¶ 29) (Miss.2006). As there has been no imposition of punitive damages here, the circuit court could not award contingent-attorneys’ fees to Echostar. Accordingly, we reverse and render the circuit court’s judgment regarding the award of costs, expenses, and contingent-attorneys’ fees.

¶ 23. THE JUDGMENT OF THE CARROLL COUNTY CIRCUIT COURT IS AFFIRMED IN PART, AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE APPELLEE.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . On June 6, 2005, the Carroll County Circuit Court dismissed Jimmy from the case for failing to report his claims against Echostar on his bankruptcy schedules.

      . Rule 41(b) reads, in pertinent part:
      For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.


author: IRVING, P.J,

text:
    Matthew Tyler McMULLIN, Appellant v. Kimberly Scott Simmons McMULLIN, Appellee.
    No. 2010-CA-01539-COA.
    Court of Appeals of Mississippi.
    May 29, 2012.
    Rankin County Chancery Court, Dan H. Fairly, J.
    George C. Nicols, Madison, attorney for appellant.
    Barry C. Campbell, Jackson, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J,

for the Court:

¶ 1. Matthew Tyler McMullin (Matt) and Kimberly Scott Simmons McMullin were divorced in 2008. The final judgment of divorce provided for Matt and Kimberly to share joint legal and physical custody of their sons. Soon after their divorce was finalized, Kimberly entered a rehabilitation facility for treatment of her addiction to prescription drugs. According to a temporary agreement between Matt and Kimberly, he would have full custody of the children while she was in treatment. On August 13, 2009, Matt filed a Petition for Modification of Child Custody and Other Relief. The Rankin County Chancery Court denied Matt’s request and reinstated the joint-custody arrangement from the final judgment of divorce. Feeling aggrieved, Matt appeals and argues that the chancery court improperly analyzed the Albright factors and erred in refusing to modify custody.

¶ 2. Because the chancery court did not enter a final, appealable judgment, we lack jurisdiction to address the merits of Matt’s claims. Therefore, this appeal is dismissed.

FACTS

¶ 3. Matt and Kimberly were married on March 10, 2006. During the course of the marriage, the couple had two sons, Tyler and Tayloe. Matt and Kimberly were divorced on December 12, 2008. In the chancery court’s Final Judgment of Divorce, the court granted Matt and Kimberly joint legal and physical custody of their sons.

¶4. After their divorce was finalized, Kimberly entered a rehabilitation facility for treatment of her addiction to prescription drugs. Kimberly and Matt entered into a temporary custody agreement, in which Matt would have full custody of their sons while Kimberly received treatment. Kimberly completed the rehabilitation facility’s primary care program, but she was forced to continue with outpatient treatment after failing the facility’s drug test.

¶ 5. As the basis for his petition to modify custody, Matt alleged that material changes in circumstances had arisen, which adversely affected their sons. Specifically, Matt alleged that Kimberly was cohabitating outside the bonds of marriage in violation of their Property Settlement Agreement and that she was still abusing prescription drugs. The chancery court found that Kimberly’s behavior created a potential harm to their sons, amounting to a material change in circumstances. However, following its review of the Albright factors, the chancery court concluded that the factors favored both parents equally. Consequently, the chancery court denied Matt’s petition and reinstated the original custody arrangement. However, the chancery court noted that it “reserve[d] the right to modify custody, if needed, based on Dr. [Stanley Randall] Easterling’s report and recommendation.” On June 4, 2010, Matt filed a Motion to Alter or Amend, which the chancery court denied. Again, the chancery court stated that it “maintain[ed] the authority to alter or amend the judgment [on] the [c]ourt’s [own] initiative as it is contingent on the recommendation to the [c]ourt from ... addictionologist, Dr. Randy Easterling.”

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. Although neither party has raised an issue as to whether the chancery court’s order is a final, appealable judgment, we “must address this question on our own initiative.” M.W.F. v. D.D.F., 926 So.2d 897, 899 (¶ 4) (Miss.2006) (quoting Williams v. Delta Reg’l Med. Ctr., 740 So.2d 284, 285 (¶ 5) (Miss.1999)). Only final judgments are appealable unless a Rule 54(b) certificate has been entered or the Mississippi Supreme Court has granted permission for the parties to proceed with an interlocutory appeal. See M.R.C.P. 54(b); M.R.A.P. 5.

¶ 7. Here, the chancery court’s order is not a final judgment. The chancery court explicitly stated in both of its orders that the decision to maintain a joint physical and legal custody arrangement between Matt and Kimberly was contingent upon Dr. Easterling’s report concerning Kimberly’s addiction to prescription drugs. Until the chancery court receives Dr. Easterling’s report, its decision concerning the custody of Matt and Kimberly’s children is not final. Furthermore, neither of the chancery court’s orders makes an “expressed direction for the entry of the judgment” or expressly determines that there is “no just reason for delay.” M.R.C.P. 54(b). Without a Rule 54(b) certification, the chancery court’s order is not a final judgment. Thus, we must dismiss this appeal for lack of jurisdiction.

¶ 8. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983)

      . The record is devoid of any additional orders or judgments reflecting Dr. Easterling’s findings,


author: CARLTON, J.,

text:
    Christopher McCREARY, Appellant v. CITY OF GAUTIER, Mississippi, Eddie Williams and Officer Derrick Welton, Appellees.
    No. 2010-CA-02032-COA.
    Court of Appeals of Mississippi.
    June 5, 2012.

      Wanda Alexander Williams, attorney for appellant.
    Joshua Wesley Danos, Pascagoula, attorney for appellees.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Christopher McCreary filed suit against the City of Gautier, Mississippi, and two of its police officers, Officer Derrick Welton and Chief of Police Eddie Williams (collectively, the City and the officers), alleging that he was attacked by a K-9 police dog after he was stopped for a traffic violation. The Circuit Court of Jackson County granted summary judgment to both the City and the officers after finding that the City and the officers were immune from liability pursuant to Mississippi Code Annotated section 11-46-9 (Rev. 2002). McCreary now appeals. Finding no error, we affirm.

FACTS

¶ 2. On October 1, 2009, Officer Derrick Welton of the City of Gautier Police Department approached a vehicle driven by McCreary after observing that the tint on the vehicle’s windows was too dark. Officer Welton, accompanied by a K-9 police dog, requested McCreary to stop his vehicle for inspection. The order from the County Court of Jackson County reflects that McCreary verbally refused to stop his vehicle per Officer Welton’s commands, and McCreary continued to drive past the officer.

¶ 3. Officer Welton pursued McCreary’s vehicle on foot until McCreary pulled his vehicle to a stop in front of the Fast Trac gas station. McCreary exited his vehicle and then began to rapidly approach Officer Welton, despite Officer Welton’s commands for him to remain inside of the vehicle. Officer Welton proceeded to arrest McCreary for disorderly conduct. McCreary was then engaged by Officer Welton’s K-9 police dog.

¶ 4. The police dog released McCreary after a command from Officer Welton, and an ambulance and backup police officers were called. Officer Welton ordered McCreary to move to the rear of McCreary’s vehicle, but McCreary refused to do so. Once the backup officers arrived at the scene, McCreary eventually moved to the rear of his vehicle, where Officer Brad Byers proceeded to pat down McCreary and place him under arrest. When Officer Byers attempted to handcuff McCreary, McCreary verbally and physically resisted. McCreary was then placed under arrest for a window-tint violation, disorderly conduct, misdemeanor possession of marijuana, and resisting arrest.

¶ 5. On October 26, 2009, McCreary pled guilty to possession of marijuana in the Gautier Municipal Court. However, the court found McCreary guilty on all other charges relating to the October 1, 2009 incident. On appeal, the County Court of Jackson County affirmed the municipal court’s order, finding McCreary guilty on all charges except for the window-tint violation. Specifically, the county court judge found:

McCreary verbally refused to stop his vehicle per the officer’s commands and continued past the officer.
Officer Welton gave foot pursuit after [McCreary’s] vehicle until he pulled to a stop in front of the gas station. Officer Welton commanded [McCreary] to remain in the vehicle. For the second time, [McCreary] acted in direct contradiction to the officer’s commands and exited his vehicle rapidly, approaching Officer Welton. At this point, Officer Welton had probable cause to arrest ... McCreary for disorderly conduct. [McCreary] was then engaged by Officer Welton’s K-9 unit.
The K-9 unit released [McCreary] per Officer Welton’s command, and an ambulance and backup officers were called. Officer Welton commanded [McCreary] to move to the rear of his vehicle, but he refused until backup arrived. Officer Brad Byers arrived as backup and proceeded to pat down [McCreary] and place him under arrest. When Officer Byers attempted to handcuff McCreary, [McCreary] verbally and physically resisted. Probable cause existed for a citation based on resisting arrest. [McCreary] was then placed under arrest for window tint violation, disorderly conduct, and resisting arrest.

¶ 6. McCreary then filed the suit now before us in the Circuit Court of Jackson County, alleging that he suffered injuries to his arm after being attacked by the police dog. McCreary claimed that the dog attacked him without warning, bit down on his arm, and violently shook his arm for several minutes. McCreary stated that Officer Welton waited several minutes before commanding the dog to release McCreary. McCreary also asserted the following claims against the City and the officers: (1) injunctive relief prohibiting future similar conduct; (2) negligence, gross negligence, and “wanton failure in hiring, monitoring, training, and supervision”; (3) intentional and/or negligent infliction of emotional distress; (4) assault and battery; and (5) malicious prosecution. The circuit judge found that under section 11-46-9, the City and the officers were exempt from liability for McCreary’s allegations of negligence, gross negligence, and “wanton failure in hiring, monitoring, training, and supervision”; intentional and/or negligent infliction of emotional distress; and assault and battery. With regard to McCreary’s claims for injunctive relief and malicious prosecution, the circuit judge granted summary judgment to the City and the officers. Specifically, the circuit judge found that McCreary failed to satisfy any of the elements of malicious prosecution. The circuit judge also held that McCreary failed to provide facts to support his injunctive-relief claim; that McCreary lacked an adequate remedy at law; and that McCreary failed to show what irreparable damages, if any, would result if injunctive relief was not afforded.

¶ 7. McCreary now appeals the circuit judge’s grant of summary judgment to the City and the officers, arguing: (1) the City and the officers were not immune under section 11-46-9; and (2) the circuit judge failed to properly analyze the elements of malicious prosecution.

STANDARD OF REVIEW

¶ 8. This Court’s standard for reviewing a trial court’s grant or denial of summary judgment is de novo. Waggoner v. Williamson, 8 So.3d 147, 152 (¶ 11) (Miss.2009) (citing One S., Inc. v. Hollowell, 963 So.2d 1156, 1160 (¶ 6) (Miss.2007)). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show 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.” M.R.C.P. 56(c). In addition, “[t]he moving party has the burden of demonstrating that no genuine issue of material fact(s) exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Waggoner, 8 So.3d at 152-53 (¶ 11) (citations omitted).

DISCUSSION

I. Section 11-46-9

¶ 9. McCreary argues that the circuit judge improperly applied section 11 — 46-9(l)(e) to the faets of this case, claiming that the circuit judge only considered the last part of section 11 — 46—9(l)(c) and thus the circuit judge ruled only on McCreary’s behavior — and disregarded Officer Wel-ton’s behavior — on the night of McCreary’s arrest. Specifically, McCreary alleges that the record and the circuit court’s order failed to address whether Officer Welton “acted with reckless disregard of the safety and well being of any person.” McCreary claims that the circuit judge failed to examine Officer Wel-ton’s conduct in view of section 11-46-9(1 )(c), which McCreary contends is reversible error.

¶ 10. The Mississippi Tort Claims Act, Mississippi Code Annotated sections 11-46-1 to -23 (Rev. 2002 & Supp. 2011), provides the exclusive remedy against a governmental entity and its employees for acts or omissions that give rise to a suit. Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1236 (¶9) (Miss.1999). Section .11-46-9 provides that a governmental entity and its employees acting within the course and scope of their employment shall not be liable for any claim based upon an act or omission enumerated in the statute. If the act or omission falls under the subsections of section 11-46-9, and the employee acts within the course and scope of his employment, then the governmental entity is exempt from liability. Lang, 764 So.2d at 1237 (¶ 10).

¶ 11. The applicable provision is section ll-46-9(l)(c), which states that a governmental entity shall not be liable for any claim

Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the same time of the injury.

¶ 12. McCreary argues that the timing of the injury is an important factor to consider under 11 — 46-9(l)(c), since he contends this statute only applies to claims brought by individuals who are engaged in criminal activity at the time of injury. McCreary asserts that his version of the facts reflects that the police dog bit him before he could exit his vehicle, and not after he exited the vehicle, as stated by Officer Welton. McCreary claims that this indicates he was not engaged in criminal activity at the time he was attacked by the police dog, and he contends that the question of whether he was engaged in criminal activity should have been submitted to a jury for determination.

¶ 13. For recovery from a governmental entity to be barred because of the victim’s criminal activity, the criminal activity must have some causal nexus to the wrongdoing of the tortfeasor. City of Jackson v. Perry, 764 So.2d 373, 379 (¶ 25) (Miss.2000). Jurisprudence recognizes that section 11-46-9 was “not designed to protect grossly negligent or intentional tortfeasors from liability where the fact that the victim is engaged in a criminal activity is merely fortuitous and has no relation to the transaction out of which the liability would otherwise arise.” Id.

¶ 14. In this case, the circuit judge found a causal nexus between McCreary’s apprehension for a window-tint violation and the subsequent criminal charges, stating:

The substance of [the City and the officers’] motion is that recovery is precluded by the Mississippi Torts Claims Act pursuant to [Mississippi Code Annotated section] 11-46-9 et seq. [County Court] Judge Wilson’s order specifically found that Officer Welton had probable cause to stop [McCreary] was illegal window tint. [McCreary] failed to obey Officer Welton’s commands to stop his vehicle. Once stopped, [McCreary] exited his vehicle rapidly, approaching Officer Wel-ton. It was at this point that [McCreary] was engaged by the K-9. The fact that there was a causal nexus between [McCreary’s] criminal activity and his subsequent apprehension by the K-9 unit is enough to trigger the liability exemption contained in [section] 11-46-9(l)(c).
Although [McCreary] was not found guilty of illegal window tint, Judge Wilson nevertheless found probable cause for the initial stop. As the dog was employed in connection with [McCreary] resisting a lawful arrest, the causal connection is evident.

¶ 15. The record before us supports a showing of probable cause for the stop and subsequent arrest for disorderly conduct and resisting arrest. The record also shows that the county court judge found that McCreary refused and disobeyed direct commands from Officer Welton prior to being apprehended by the police dog. Additionally, the supreme court explained in Mississippi Department of Public Safety v. Durn, 861 So.2d 990, 997 (¶ 20) (Miss.2003), that “[w]here an officer has probable cause to arrest and proceeds to do so, there is the requisite nexus between criminal activity and the action causing injury.” The supreme court further established that “[misdemeanor traffic offenses are criminal activities within the statute.” Id.

¶ 16. McCreary also contends that the circuit judge failed to examine whether Officer Welton acted within the course and scope of his job, or whether he acted with reckless disregard. McCreary argues that the circuit judge should have considered how Officer Welton handled the police dog when McCreary received his injuries.

¶ 17. In Tory v. City of Edwards, 829 So.2d 1246, 1249-50 (¶ 16) (Miss.Ct.App.2002), this Court rejected the contention that the trial judge was required to make a finding as to whether the officers’ conduct was in reckless disregard for the safety of others. The Tory court reasoned that such a finding would have removed the statutory requirement that “an individual bringing suit against a law enforcement officer not be involved in criminal activity at the time of injury.” Id. In recognizing this Court’s decision in Tory, the supreme court reasoned that “[t]he Legislature decided to limit the recovery rights of individuals injured while committing criminal acts, and we decline to circumvent this reasonable decision.” Estate of Williams ex rel. Williams v. City of Jackson, 844 So.2d 1161, 1166 (¶ 20) (Miss.2003). However, even viewing the facts in a light most favorable to McCreary, we find no evidence that the City or the officers acted outside of the course and scope of employment, or that their conduct rose to the level of reckless disregard based upon the facts in this record, including the findings in the county court’s judgment of conviction.

¶ 18. After our review, we find that the record supports the finding of a causal nexus between McCreary’s actions and his apprehension by the police dog and subsequent arrest. See Perry, 764 So.2d at 380 (¶29). We find no error in the circuit judge’s determination that the City and officers are exempt from liability under section ll-46-9(l)(c). This issue is without merit.

II. Malicious Prosecution

¶ 19. McCreary next asserts as error the circuit judge’s grant of summary judgment in favor of the City and the officers on the claim of malicious prosecution. McCreary argues that the circuit judge erred by only addressing one of the six elements required to prove malicious prosecution — termination of the proceeding in the plaintiffs favor.

¶ 20. The Mississippi Supreme Court has established the elements of the tort of malicious prosecution are:

(1) The institution of a proceeding
(2) by, or at the insistence of[,] the defendant
(3) the termination of such proceedings in the plaintiffs favor
(4) malice in instituting the proceedings
(5) want of probable cause for the proceedings
(6) the suffering of injury or damage as a result of the prosecution.

Condere Corp. v. Moon, 880 So.2d 1038, 1042 (¶ 13) (Miss.2004). All six of these elements must be proven by a preponderance of the evidence, and the burden is on McCreary, as the plaintiff, to establish each element of the claim. McClinton v. Delta Pride Catfish, Inc., 792 So.2d 968, 973 (¶ 9) (Miss.2001); Van v. Grand Casinos of Miss., Inc., 724 So.2d 889, 891 (Miss.1998). “When a party opposing summary judgment on a claim or defense as to which that party will bear the burden of proof at trial, fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss.1996) (quoting Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987)).

¶ 21. As stated, the record shows that McCreary’s criminal charges of disorderly conduct and resisting arrest were affirmed by the county court. McCreary also pled guilty to the charge of possession of marijuana. As such, we find that the criminal proceedings did not “terminate in [McCreary’s] favor”; therefore, the facts before us fail to satisfy the third element of the malicious-prosecution claim. See McClinton, 792 So.2d at 973 (¶ 9). Additionally, the county court found that probable cause existed to arrest McCreary for each of the charges, thus eliminating the fifth element of the malicious-prosecution claim. See id. After our review of the record, we find that McCreary has failed to prove all six elements necessary for a claim of malicious prosecution. Therefore, we find no error in the circuit court’s grant of summary judgment to the City and the officers.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. RUSSELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . The record reflects that Officer Welton was stationed in the parking lot of a Fast Trac gas station at the time he observed McCreary’s vehicle.


author: MAXWELL, J., IRVING, P.J.,

text:
    Andy Edward MINOR, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01753-COA.
    Court of Appeals of Mississippi.
    June 7, 2012.

      Patricia F. Dunmore, Natchez, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   MAXWELL, J.,

for the court:

¶ 1. Andy Edward Minor was convicted of shooting into a dwelling, aggravated assault, and possession of a firearm by a convicted felon. On appeal, he argues: (1) the State violated its Brady obligations; (2) the trial judge abused his discretion by denying his motion for continuance; (3) the admission of one of Minor’s prior felony convictions and other bad acts was plain error; and (4) the jury’s verdict is against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. In June 2010, Cynthia Skipper was dating McArthur Scott Jr. Four years earlier, Skipper had been involved in a relationship with Minor, during which she became pregnant with Minor’s child.

¶ 3. On June 27, 2010, Skipper’s brother, Peter Banks, showed up at Scott’s home to pick up their mother’s van, which Skipper had borrowed. Banks brought Minor with him. Banks and Minor tried to get Skipper to leave with them. They went so far as to call the Fayette Police Department. At trial, Scott testified that, when Chief David Houston arrived, Scott asked him to make Minor leave because Minor “had tried to jump” Scott once before. Skipper also testified she told Chief Houston that she was afraid Minor was “going to try to do something” because Skipper was staying with Scott. Reasoning that Skipper was free to decide to stay with Scott, Chief Houston got the van keys from Skipper, gave them to Banks, and told Minor to leave Scott’s residence.

¶ 4. Two days later, around midnight, Skipper was watching television at Scott’s trailer, while Scott slept on the couch. Skipper woke Scott up when she heard a knock on the door. Skipper and Scott both testified it was Minor at the door. Scott grabbed his rifle and told Minor to leave. In response, Minor allegedly fired a shotgun through the trailer’s window, blowing off one of Scott’s fingers. Minor then used the butt of his gun to bust through the trailer’s door. Once inside, Scott and Minor began to struggle. As the two wrestled, Minor used his shotgun to choke Scott. Skipper ran to the bedroom, and Minor went after her. Scott then crawled through the window, ran to his grandmother’s trailer next door, and called the police. Minor told Skipper, “I be back [sic]. I’m going to kill both of ya’ll.” Minor then left Scott’s trailer and drove away.

¶ 5. Minor took the stand and admitted he went to Scott’s trailer on June 29, 2010. But he denied having a gun or shooting Scott. According to Minor, when he arrived at Scott’s house, he saw a man wearing a white shirt and black pants leaving the trailer. He claimed he could not identify the man. Minor testified he then saw Scott, who was covered in blood, come out of the trailer holding a gun. Minor and Scott purportedly went inside the trailer where, according to Minor, he asked Scott what had happened. Minor did not testify as to how Scott responded. Minor did testify Skipper told him she was going to collect her things and leave with him, but he decided to leave without her.

¶ 6. Minor was charged in a three-count indictment. The first count alleged he discharged a firearm into an occupied dwelling. The second and third counts charged aggravated assault and possession of a firearm by a convicted felon, respectively. Based on Minor’s prior felony convictions for grand larceny and manufacturing a controlled substance, he was charged as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007).

¶ 7. Minor was appointed counsel on September 13, 2010. Trial began on October 7, 2010. After the jury was empaneled, Minor moved for a continuance to retain private counsel, which was denied. The jury convicted Minor of all three counts. The trial judge sentenced Minor to ten years’ imprisonment for shooting into a dwelling, twenty years’ for aggravated assault, and ten years’ for possession of a firearm by a convicted felon. The judge ordered all three sentences to be served consecutively and, based on Minor’s status as a habitual offender, without eligibility for parole or early release. After his motion for a new trial was denied, Minor timely appealed.

DISCUSSION

I. Request for Criminal Records

¶ 8. On September 15, 2010, Minor filed a motion for production and disclosure, requesting the criminal records of all witnesses the State intended to call at trial. Minor claims the State violated its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because it failed to produce Skipper’s criminal record.

¶9. “It is well established that the State ha[s a] duty to turn over all exculpatory material relevant to [a defendant’s] case.” Howell v. State, 989 So.2d 372, 378 (¶ 13) (Miss.2008). Furthermore, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194).

¶ 10. The United States Supreme Court has expressly extended the Brady duty of disclosure to include material evidence “affecting” the credibility of a witness. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). “Brady’s disclosure requirements extend to materials that, whatever their other characteristics, may be used to impeach a witness.” Strickler v. Greene, 527 U.S. 263, 282 n. 21, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (citing United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). There is little dispute that a government witness’s prior criminal conduct may be used for impeachment purposes and should be disclosed by the State.

¶ 11. However, even where impeachment material exists, nondisclosure by the State does not necessarily establish that the outcome was unjust. The term “Brady violation” is sometimes used to refer to the State’s failure to disclose exculpatory or impeachment evidence. But “strictly speaking, there is never a real Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.” Id. at 281. Rather, “[t]o establish that a Brady violation undermines a conviction, a convicted defendant must make each of three showings: (1) the evidence at issue is ‘favorable to the accused, either because it is exculpatory, or because it is impeaching’; (2) the State suppressed the evidence, ‘either willfully or inadvertently’; and (3) ‘prejudice ensued.’” Skinner v. Switzer, — U.S. -, -, 131 S.Ct. 1289, 1300, 179 L.Ed.2d 233 (2011) (quoting Strickler, 527 U.S. at 281-282, 119 S.Ct. 1936).

¶ 12. On appeal, Minor has provided no record evidence that Cynthia Skipper had any felony convictions. So he has shown no suppression by the State and accordingly no basis to further administer the materiality test to determine whether a cognizable Brady violation exists. Thus, we find his Brady claim fails.

II. Motion for Continuance

¶ 13. Minor argues the circuit court erred in denying him a continuance, which he requested to retain his own attorney instead of proceeding to trial with appointed counsel.

¶ 14. “The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be reversed unless the decision results in manifest injustice.” Boone v. State, 973 So.2d 237, 241 (¶ 13) (Miss.2008) (quoting Ross v. State, 954 So.2d 968, 1007 (¶ 91) (Miss.2007)). This court has previously addressed whether the denial of a last-minute request for a continuance to allow a defendant time to retain private counsel is an abuse of discretion. Moore v. State, 873 So.2d 129, 131-32 (¶¶ 6-11) (Miss.Ct.App.2004). While Minor does have the right to counsel, “the right to choose counsel is not absolute” and “must not be abused or manipulated in such a way as to ‘thwart the progress of a trial.’ ” Id. at 131 (¶ 10) (quoting McCormick v. State, 802 So.2d 157, 160 (¶ 10) (Miss.Ct.App.2001)).

¶ 15. In Moore, the defendant, who was represented by two court-appointed attorneys, moved for a continuance on the day of trial. Id. at (¶ 9). Moore argued the five days from the time his attorneys were appointed to the day of his trial “was insufficient to allow his attorney time for proper preparation.” Id. The trial judge denied the motion because “the case had been set for trial, witnessés had been summoned, jurors had been empaneled, and the attorney that [the defendant] intended to hire had been given the opportunity to represent him but declined to do so.” Id. at (¶ 7). Because Moore had “adequate opportunity ... to seek out counsel of his own choosing” during the five months between his arrest and arraignment, and because Moore had two court-appointed attorneys who announced they were ready for trial, this court found no abuse of discretion in denying Moore’s motion for continuance. Id. at 131-32 (¶ 10).

¶ 16. As in Moore, Minor requested a continuance the day of trial after the jury had been empaneled. We find Minor had adequate time between his August 17, 2010 arraignment and his October 7, 2010 trial date to retain private counsel. Further, his court-appointed lawyer appeared the day of trial and announced she was ready for trial-having had significantly more time to prepare than the court-appointed attorneys in Moore. See id. at 131 (¶ 9). We therefore find no abuse of discretion in the trial court’s denial of Minor’s motion for a continuance.

III. Evidence of Minor’s Prior Convictions and Prior Bad Acts

¶ 17. Minor argues statements made at trial regarding his prior convictions and other alleged bad acts deprived him of his right to a fair trial. Minor admits he failed to object to these statements at trial. He now seeks review under the plain-error doctrine. This doctrine permits appellate courts to “recognize obvious error which was not properly raised by the defendant on appeal, and which affects a defendant’s ‘fundamental, substantive right.’ ” Neal v. State, 15 So.3d 388, 403 (¶ 32) (Miss.2009) (quoting Smith v. State, 986 So.2d 290, 294 (¶ 10) (Miss.2008)). When reviewing for plain error, “we must determine ‘if the trial court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial.’ ” Id. (quoting McGee v. State, 953 So.2d 211, 215 (¶ 8) (Miss.2007)).

¶ 18. Minor alleges prejudice from the court admitting the sentencing order from his prior conviction for manufacture of a Schedule I controlled substance. However, when pursuing a felon-in-possession charge, if the defendant does not offer to stipulate to his status as a prior-convicted felon, “the prosecution [is] entitled to prove its case by evidence of its own choice[.]” Esco v. State, 9 So.3d 1156, 1165 (¶37) (Miss.Ct.App.2008) (quoting Old Chief v. United States, 519 U.S. 172, 186-87, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)). Here, Minor made no offer to stipulate he was a convicted felon — an essential element of count three. Absent a stipulation or objection, we find no reversible error in the State’s use of the sentencing order as substantive evidence of Minor’s status as a prior-convicted felon to establish this required element. See id. at 1164 (¶ 35), 1165 (¶ 37).

¶ 19. Minor also contends the trial judge committed plain error by not excluding, sua sponte, Scott’s testimony that Minor had previously threatened him over his relationship with Skipper. See M.R.E. 404(b) (“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.”). “Usually, evidence of another crime or pri- or bad act is not admissible.” Simmons v. State, 813 So.2d 710, 716 (¶ 30) (Miss.2002) (citation omitted). But here, two days before the attack, Scott had asked Chief Houston to order Minor to leave Scott’s residence because Minor had previously threatened Scott. There was also testimony about a more remote threat from Minor to Scott that had occurred at Skipper’s mother’s house. And during Minor’s attorney’s cross-examination of Scott she insinuated there was bad blood between Minor and Scott and that Scott did not like Minor because both men had been involved in relationships with Skipper. While this evidence was likely admissible under Rule 404(b) to establish motive, knowledge, or intent, the State did not pursue admission under this rule. Even so, we find the uncontested testimony about Minor’s threats to Scott was arguably relevant to the complete story involving the assault on Scott. Thus, we find no plain error in the unchallenged testimony.

IV. Weight of the Evidence

¶ 20. Minor argues the trial court erred by denying his motion for new trial because the jury’s verdict is contrary to the weight of the evidence. When reviewing a trial court’s decision to deny a motion for a new trial, the evidence is considered “in the light most favorable to the verdict.” Williams v. State, 35 So.3d 480, 491 (¶ 41) (Miss.2010) (citing Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005)). We will only order a new trial where “the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction unconscionable injustice.” Id.

¶ 21. Minor argues the jury should not have relied solely on the eyewitness testimony of Scott and Skipper to convict him when there was no physical evidence, such as gun powder residue on his hands or testimony linking his fingerprints to the shotgun. We disagree and reject the notion that forensic or physical evidence is required to support every criminal conviction.

¶ 22. In Johnson v. State, 44 So.3d 400, 411 (¶¶ 36-37) (Miss.Ct.App.2010), we affirmed a jury’s verdict that the defendant was guilty of discharging a firearm' into a dwelling house though no bullet casings were located. We found the two eyewitnesses’ accounts were “substantial evidence” to support the conviction. Id. Scott and Skipper testified Minor fired a shotgun through the trailer’s window, hitting Scott and causing him to lose a finger: Immediately before the shooting, Scott recognized Minor’s voice asking him to “open the door.” And after being shot through his window, Scott explained that Minor busted open his trailer door with a shotgun. The two then struggled, with Minor ultimately choking Scott with the shotgun. Skipper similarly recounted the attack, and added that before leaving Minor told her that he would be back later to kill both of them.

¶ 23. Minor points out Scott’s and Skipper’s versions conflict with his own. But “[a]ny conflicts between witnesses’ accounts are properly weighed by the jury,” which is “the sole judge of the credibility of witnesses and the weight and worth of their testimony.” Martin v. State, 970 So.2d 723, 727 (¶ 19) (Miss.2007) (quoting Jenkins v. State, 947 So.2d 270, 278 (¶ 26) (Miss.2006)). Viewing the evidence in the light most favorable to the verdict, we find the jury’s verdict is supported by the evidence. Thus, we find no error in the trial court’s denial of Minor’s motion for a new trial.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON COUNTY OF CONVICTION OF COUNT I, SHOOTING INTO A DWELLING, AND SENTENCE OF TEN YEARS; COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS; AND COUNT III, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF TEN YEARS, ALL AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON COUNTY.

GRIFFIS, P.J., BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION JOINED BY LEE, C.J., CARLTON, RUSSELL AND FAIR, JJ.

IRVING, P.J.,

concurring in part and in result:

¶ 25. I agree with parts II, III, and IV of the majority opinion. While I agree with the majority that this case should be affirmed, I disagree with its articulation of the State’s responsibility for production of materials under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

¶ 26. Under Brady, the prosecution has a duty to turn over relevant, exculpatory material and any evidence affecting the credibility of a witness who is material to the prosecution’s case. Giglio, 405 U.S. at 154, 92 S.Ct. 763. Brady does not establish a bright-line rule that a witness’s criminal record must be routinely produced to a defendant in all criminal cases. However, where the State’s ease hinges on a certain witness’s testimony, evidence affecting that witness’s credibility constitutes Brady material. Giglio, 405 U.S. at 154, 92 S.Ct. 763 (explaining that “evidence affecting credibility” falls under Brady where the “reliability of a given witness may well be determinative of guilt or innocence ”). Clearly, Giglio qualifies the prosecution’s obligation to produce a witness’s criminal record, and limits that obligation to the criminal records of material witnesses.

¶ 27. The fundamental flaw in the majority’s reasoning is that it reads Brady to require the production of impeachment materials for all witnesses — not just for material witnesses — to be offered by the State in its case-in-chief. The majority then concludes that since a witness may be impeached by his criminal record, it necessarily follows that the State is required to produce the criminal records of all witnesses, even though they may not be material witnesses. The majority’s view of Brady is reflected in the following quote: “Brady ⅛ disclosure requirements extend to materials that, whatever their other characteristics, may be used to impeach a witness. There is little dispute that a government witness’s prior criminal conduct may be used for impeachment purposes and should be disclosed by the State.” Maj. Op. at (¶ 10) (internal quotations and citations omitted). In my opinion, this is an overly broad reading of Brady and its progeny.

¶ 28. The majority states that “even where impeachment material exists, nondisclosure by the State does not necessarily establish that the outcome was unjust.” Maj. Op. at (¶ 11). In my opinion, this statement is indicative of the majority’s misunderstanding of what is truly Brady material. First, the majority finds that all impeachment material, including the criminal records of all witnesses, is Brady material that must be disclosed. Yet, at the same time, it asserts that “nondisclosure does not necessarily establish that the outcome was unjust.” By definition, a Brady violation results in an unjust result and constitutes reversible error, for there is never a Brady violation unless material evidence is withheld. See Strickler, 527 U.S. at 280, 119 S.Ct. 1936 (explaining that evidence is material where “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different”). Therefore, evidence that may have some impeachment value, but is not material cannot be Brady material. To hold otherwise defies logic and would place an unnecessary burden on the State.

¶29. For example, suppose the State offers five witnesses against a defendant; two are convicted felons and the other three are without criminal records. Suppose further that all five witnesses identify the defendant as the perpetrator of the crime. However, the State fails to disclose the criminal history of the two convicted felons. It cannot be legitimately argued that the result of the proceeding would have been different had the disclosure taken place. Nevertheless, according to the majority, a Brady violation would have occurred because impeachment material, the criminal history of the convicted felons, was withheld.

¶ 30. The majority quotes Strickler for the proposition that “Brady's disclosure requirements extend to materials that, whatever their other characteristics, may be used to impeach a witness.” Maj. Op. at (¶ 10). While Strickler states exactly what the majority says, the majority has taken the statement out of context. The Strickler Court made the above statement after rejecting the respondent’s contention that certain material did not have to be turned over because it was inculpatory, rather than exculpatory. Strickler, 527 U.S. at 282 n. 21, 119 S.Ct. 1936. The Court was not addressing disclosure of impeachment materials as they relate to the criminal records of a non-material witness, as is the case here.

¶ 31. I should also point out that the majority’s interpretation of the requirements of Brady expands the discovery requirements of Rule 9.04 of the Uniform Rules of Circuit and County Court, as this rule does not require the production of the criminal records of the State’s witnesses. Prosecutors are entitled to rely upon the criminal rules as promulgated by our supreme court. If Rule 9.04 is in conflict with Brady, our supreme court must correct it. This Court lacks the authority to expand the scope of any of the rules of court promulgated by our supreme court.

¶ 32. For the reasons discussed, I disagree with the majority’s holding that the prosecution is required to disclose the criminal record of non-material witnesses whenever a criminal defendant requests it.

LEE, C.J., CARLTON, RUSSELL AND FAIR, JJ., JOIN THIS OPINION.

      . See Miss.Code Ann. §§ 97-37-29 (Rev. 2006) (making it a felony to discharge of a firearm into a dwelling house); 97-3-7(2)(b) (Supp. 2011) (providing that a person is guilty of aggravated assault if he purposefully or knowingly causes bodily injury to another with a deadly weapon); and 97-37-5(1) (Supp. 2011) (making it unlawful for a person convicted of a felony to possess a firearm).

      . See Skinner, 131 S.Ct. at 1300 ("Brady proscribes withholding evidence ‘favorable to an accused’ and 'material to his guilt or to punishment.' ”) (quoting Cone v. Bell, 556 U.S. 449, 451, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009)); Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (citing Bagley, 473 U.S. at 678, 105 S.Ct. 3375) ("Bagley's touchstone of materiality is a 'reasonable probability’ of a different result[.]”).

      . After Minor's moved for a continuance, the trial court asked Minor is he had attempted to retain private counsel. Minor told the court he had contacted Claude Pinter to represent him. The trial court called Pinter, who said he had been contacted by Minor the day before but had not agreed to take on the representation.

      . See Miss.Code Ann. §§ 41-29-113 (Supp. 2011) (listing certain controlled substances under "Schedule I”); 41 — 29—139(a)—(b) (Supp. 2011) (prohibiting the manufacture of controlled substances and prescribing the penalty for manufacturing a Schedule I controlled substance)

      . See Miss.Code Ann. § 97-37-5(1) ("It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm....”).

      . Rule 9.04 requires the State, in criminal cases, to produce the following:
      1. Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial, together with a copy of the contents of any statement, written, recorded[,] or otherwise preserved of each such witness!,] and the substance of any oral statement made by any such witness;
      2. Copy of any written or recorded statement of the defendant and the substance of any oral statement made by the defendant;
      3. Copy of the criminal record of the defendant, if proposed to be used to impeach;
      4. Any reports, statements, or opinions of experts, written, recorded or otherwise preserved, made in connection with the particular case and the substance of any oral statement made by any such expert;
      5. Any physical evidence and photographs relevant to the case or which may be offered in evidence; and
      6. Any exculpatory material concerning the defendant.