author: IRVING, J.,

text:
    Danny Jerard JACKSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01799-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.
    Rehearing Denied May 31, 2011.
    Certiorari Denied Sept. 1, 2011.

      Julie L. Howell, R. Smith McNeal, Leslie S. Lee, Jackson, Philip W. Broadhead, attorneys for appellant.

      Office of the Attorney General by Scott Stuart, Jackson, attorney for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court:

¶ 1. This appeal is from Danny Jerard Jackson’s conviction, in the Harrison County Circuit Court, for murder and the resulting sentence of life in the custody of the Mississippi Department of Corrections. Feeling aggrieved by his conviction, Jackson appeals and asserts that the circuit court entered improper jury instructions, erroneously allowed the State to impeach one of Jackson’s witnesses with a prior conviction, and erred in denying Jackson’s motions for a new trial and directed verdict.

¶2. We find no reversible error and, therefore, affirm the circuit court’s judgment.

FACTS

¶ 8. On June 27, 2007, Jackson stabbed his wife’s lover, Neco Strickland, to death outside a convenience store in Harrison County, Mississippi. Jackson became aware of his wife’s infidelity over the course of several weeks or months.

¶4. On the night of Strickland’s death, Jackson was at home when he realized that his wife, Angela, had left. Jackson had previously learned what type of car Strickland drove and that he lived at the River Ten Apartments near Orange Grove, Mississippi. When Jackson realized that Angela was gone, he went to the River Ten Apartments looking for her. Once there, he found Angela’s ear parked next to the car that he believed belonged to his wife’s lover. Jackson began banging on apartment doors, looking for Angela. A security guard at the complex, Jack Powell, told Jackson to stop knocking on the doors. When Jackson informed Powell that he was looking for his wife, Powell told Jackson to go home. Powell testified that Jackson seemed calm and that he would have “called for some units if [Jackson] was mad or upset or something.” Powell maintained that Jackson was looking for Angela, not for her lover.

¶ 5. Jackson testified that he went to a nearby convenience store to buy beer and alcohol. As he was leaving, he saw Strickland. He claimed that he recognized Strickland from illicit pictures that Angela had taken of herself with Strickland. According to Jackson, Strickland was speaking on a cellular telephone, and as Jackson neared him, Jackson thought that he heard Angela’s voice on the other end of the telephone. Jackson then went to his vehicle and retrieved a knife. In Jackson’s statement that he gave to law enforcement shortly after the stabbing, he stated that he did not encounter Strickland in the store, but saw Strickland standing at a gas pump as he was leaving the gas station’s parking lot.

¶ 6. In any event, Jackson confronted Strickland after he retrieved his knife. Things escalated quickly, and Jackson stabbed Strickland multiple times in front of several witnesses. At trial, Jackson claimed that Strickland punched him before he pulled the knife out; Jackson never made that allegation to any of the officers who questioned him after the stabbing. One of the witnesses to the stabbing, Mike Koplitz, testified that Jackson pulled the knife out from under his clothing and began stabbing Strickland “with extreme force” and “without much being said.” Strickland stumbled away from Jackson, across the road to a Subway parking lot, where he collapsed face down. Jackson got in his vehicle, drove across the road to where Strickland lay, and then exited the vehicle and stabbed at Strickland’s back multiple times. Michael Hale, who witnessed the stabbing in the Subway parking lot, testified that he attempted to render aid to Strickland, but Strickland was non-responsive and gasping for air. Strickland died shortly thereafter from his wounds.

¶7. At trial, Jackson claimed that he “couldn’t control” himself when he attacked Strickland: “Well, I went out to the pump and, you know, asked him what his name was. It blew up from there, you know. I couldn’t control myself. My mind wasn’t there. I wasn’t myself.” Jackson claimed that he blacked out and could not remember anything that happened from the time of his initial confrontation with Strickland until sometime after he had finished stabbing Strickland. Shortly after the stabbing, Jackson was able to describe to Detective Ron Kirkland of the Gulfport Police Department what occurred; it was only at trial that Jackson claimed that he had blacked out after the stabbing.

¶8. After stabbing Strickland to death, Jackson reentered his vehicle and left the Subway parking lot. However, one of the witnesses was able to take down Jackson’s license-plate number, and Jackson was later taken into custody and questioned by Detective Kirkland. Detective Kirkland first made contact with Jackson outside Jackson’s apartment. At that time, Jackson told Detective Kirkland that he did not want to get his mother-in-law “involved”; Detective Kirkland testified that he then told Jackson that “no one was going to get in trouble unless they had anything to do with the crime.” According to the detective, Jackson then stated that “no one else had anything to do with it.” The knife that Jackson used to stab Strickland was recovered from the middle of a driveway outside a car dealership on June 28, 2007. Bloody clothes were recovered from a washing machine in Jackson’s apartment. Samples were also taken from blood stains inside Jackson’s vehicle. DNA testing of the blood on the knife, Jackson’s car, and Jackson’s clothes revealed that the blood came from Strickland. On December 17, 2007, Jackson was indicted for Strickland’s murder.

¶ 9. Multiple eyewitnesses to the stabbing testified at Jackson’s trial, as did law enforcement and a DNA expert. At the close of the State’s case, Jackson moved for a directed verdict and requested that the case continue on the lesser-included offense of manslaughter. The circuit court denied the motion, finding that the State had “proven at least a prima facie case of deliberate[-]design murder....”

¶ 10. Angela took the stand in Jackson’s defense and testified regarding her affair with Strickland. Jackson also took the stand and testified that he did not intend to encounter Strickland at the gas station. Several character witnesses testified on Jackson’s behalf. During deliberation on jury instructions, Jackson objected to the State’s proposed instruction as to deliberate design. The circuit court overruled Jackson’s objection and allowed the instruction; the court also refused Jackson’s proposed instruction as to deliberate design. Thereafter, the jury found Jackson guilty of deliberate-design murder. The circuit court sentenced Jackson to a mandatory term of life imprisonment. It is from that judgment that Jackson appeals.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Jury Instructions

¶ 12. When reviewing jury instructions, we read the instructions “as a whole to determine whether the jury was fully and fairly instructed according to the applicable law.” Clark v. State, 40 So.3d 531, 544 (¶ 36) (Miss.2010) (citing Davis v. State, 18 So.3d 842, 847 (¶ 14) (Miss.2009)). “In other words, if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.” Id. (quoting Davis, 18 So.3d at 847 (¶ 14)). Although Jackson had the right to present his theory of the case, that “right is not absolute.” Id. (citing Davis, 18 So.3d at 847 (¶ 14)). Specifically, the circuit court “may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id. (quoting Spires v. State, 10 So.3d 477, 483 (¶ 28) (Miss.2009)).

¶ 13. Jackson presents two complaints regarding the circuit court’s jury instructions. The first is that the circuit court improperly denied his proposed instruction on the cooling-off period and deliberate-design murder. The second is that the State’s instruction, which was granted, improperly defined a time limit for deliberate-design murder. In the interest of completeness, we will quote extensively from the jury instructions in this case.

¶ 14. Jackson’s proposed instruction on the cooling-off period, D-10, reads as follows:

It is the decision of the Jury whether the Defendant, DANNY JERARD JACKSON, acted in a “heat of passion[,]” and if the Defendant received information that made him act in a “heat of passion[,]” and not with deliberate design, it is a jury question whether there has been enough time for the Defendant to cool off from his initial state of mind that would be raised to a “heat of passionf.”] Whether there has been cooling time is eminently a question of fact, varying with the particular case and with the condition of the party. There are some provocations which, with persons of even temperament, lose their power in a few moments; while there are others which rankle in the breast for days and even weeks. Men’s temperaments also very [sic] greatly as to the duration of hot blood; and it must be remembered that we must determine the questions of deliberate design in each case, not by the standard of an ideal “reasonable man[,”] but by that of the party to whom the deliberate design is imputed.

However, this was not the only instruction that touched on “heat of passion” and deliberate design. Instruction S-l, which was given by the circuit court, states in part:

The Court instructs the Jury that the Defendant, DANNY JERARD JACKSON, has been charged in the Indictment with the crime of Murder for having caused the death of Ñeco F. Strickland, with the deliberate design to effect the death of Ñeco F. Strickland. If you find from the evidence in this case beyond a reasonable doubt that:
1. on or about June 27, 2007, in the First Judicial District of Harrison County, Mississippi,
2. the Defendant, DANNY JERARD JACKSON, did wilfully, feloniously and without the authority of law, kill and murder Ñeco F. Strickland, a human being,
3. with deliberate design to effect the death of Ñeco F. Strickland,
then you shall find the Defendant ... guilty of Murder.

Instruction S-3, which was also given, states in its entirety:

The Court instructs the jury that deliberate design to kill is all that is required by Mississippi law to make a homicide a murder. Deliberate design means intent to kill, without authority of law and not being legally justifiable, legally excusable[,] or under circumstances that would reduce the act to a lesser crime.

Instruction S-5, which was given by the circuit court, defines heat of passion and states:

The Court instructs the jury that the term heat of passion is defined as a state of violent and uncontrollable rage caused by certain provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment^] or terror.
The passion felt by the person committing the act should be induced by some insult, provocation, or injury, which would naturally and instantly produce, in the minds of ordinarily constituted men, the highest degree of exasperation. In other words, passion and anger alone are not sufficient to reduce a crime from murder to manslaughter.

The State also provided an instruction explaining the circumstances under which the jury should have found Jackson guilty of manslaughter rather than murder. That instruction, S-8, was given by the circuit court and reads as follows:

If you find that the State has failed to prove all of the essential elements of the crime of Murder, you may consider the lesser charge of Manslaughter. However, it is your duty to accept the law given to you by the Court, and if the facts and the law warrant a conviction of the crime of Murder, then it is your duty to make such finding uninfluenced by your power to find a lesser offense. This provision is not designed to relieve you from the performance of an unpleasant duty. It is included to prevent a failure of justice if the evidence fails to prove the original charge but does justify a verdict for the lesser crime. Therefore, if you find the Defendant ... not guilty of Murder, then you shall proceed with your deliberations to decide whether the State has proved beyond a reasonable doubt all of the elements of the lesser crime of Manslaughter.
If you find from the evidence beyond a reasonable doubt that:
1. on or about June 27, 2007, in the First Judicial District of Harrison County, Mississippi;
2. the Defendant ... did willfully, unlawfully[,] and feloniously kill and slay Ñeco F. Strickland, a human being,
3. without malice, in the heat of passion by the use of a dangerous weapon, to-wit: a knife,
4. without authority of law and not in necessary self-defense,
then you shall find the Defendant ... Guilty of Manslaughter.
If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the Defendant ... Not Guilty of Manslaughter.

Finally, the State offered an instruction, S-9, defining “deliberate design”; Jackson argues that the circuit court erred in giving this instruction. It reads as follows:

The Court instructs the jury that “deliberate design” as it is used in these instructions, means an intent to kill without authority of law, and not being legally justifiable, or legally excusable. “Deliberate” always indicates full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences. “Design” means to calculate, plant,] or contemplate. “Deliberate design” to kill a person may be formed very quickly and perhaps only moments before the act of killing the person. However, a “deliberate design” can not [sic] be formed at the very moment of the fatal act.

For clarity’s sake, we will address separately each of Jackson’s complaints regarding these instructions.

a. Instruction S-9

¶ 15. Jackson argues that the circuit court erred when it gave Instruction S-9, which defines “deliberate design.” Jackson contends that the instruction is duplicative of other instructions and that it improperly placed a time limit on deliberate design. Jackson argues that the State’s instructions “were more likely to confuse the jury because they bifurcated discussions of ‘deliberate design’ and ‘heat of passion,’ leaving the jury able to assume that both might exist in the mind of the defendant at the time.”

¶ 16. Instruction S-9 can be found nearly verbatim in several Mississippi Supreme Court eases. In Jones v. State, 39 So.3d 860, 865-66 (¶ 32) (Miss.2010) (quoting Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995)), our supreme court stated the following regarding its treatment of deliberate design:

Th[is] Court has defined deliberate design, stating that “ ‘deliberate’ always indicates full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences. ‘Design’ means to calculate, plan, contemplate ... deliberate design to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent.”

A comparison of this quotation with Instruction S-9 shows that the two are nearly identical. As for the part of the instruction that stated that deliberate design cannot be formed “at the very moment of the fatal act,” that statement of law has also been widely accepted by Mississippi appellate courts. See, e.g., Carter v. State, 722 So.2d 1258, 1263 (¶ 18) (Miss.1998); McCain v. State, 971 So.2d 608, 613 (¶ 13) (Miss.Ct.App.2007). Therefore, Instruction S-9 was an accurate statement of the law in Mississippi.

¶ 17. Instruction S-9 was not duplica-tive of other instructions. Instruction S-3 touches on deliberate design, and reads that deliberate design is: “intent to kill, without authority of law and not being legally justifiable, legally excusablet,] or under circumstances that would reduce the act to a lesser crime.” However, this is certainly not duplicative of the language in Instruction S-9, which defined both “deliberate” and “design” in the context of deliberate-design murder and also properly instructed the jury as to when the deliberate design to commit murder may be formed.

¶ 18. The instructions as given were proper and correct; there is no indication that they confused the jury or were likely to do so. This part of Jackson’s contention is without merit.

b. Proposed, Instruction D-10

¶ 19. Jackson contends that his proposed instruction D-10 is “an accurate statement of the law,” that the instruction would have informed the jury that “‘the duration of hot blood’ is a subjective consideration,” and that the proposed instruction was not duplicative of other instructions.

¶ 20. There was a colloquy at trial regarding whether to issue Instruction D-10:

[THE COURT]: D[-]10, [S]tate?
[PROSECUTOR]: Your Honor, we would object to this because it’s in conflict with the deliberate[-]design instruction, and in a sense that it is a jury question of whether there is enough time for the defendant to cool off from his initial state of mind and would raise to a heat of passion. I believe that the appropriate instruction is covered in S[-]9, and this bottom paragraph is simply a statement of fact which we feel is inappropriate' for an instruction.
[THE COURT]: I have already given a heat[-]of[-]passion instruction, and I really have problems with the last two sentences of this instruction as just stating some abstract statement about reasonable persons. It will be refused.
[DEFENSE ATTORNEY]: Judge, before you go any further, judge, this comes verbatim from Hailey versus State [sic], [123 Miss. 87] 85 So. [129], 1920 case. It’s been around Mississippi since then. It’s been cited and it’s cited in ALR as an example of the law that’s been followed in many jurisdictions.
If I can approach the bench[,] I will show you where I verbatim took this instruction out of Hailey [sic].
[THE COURT]: All right. Let me see it. This is a quotation from Mr. Wharton, Wharton’s Criminal Law. All right. That is not an instruction that has been approved by the Supreme Court, so I’m going to deny it.
[DEFENSE ATTORNEY]: All right. Judge, we take exception, but we don’t feel this particular issue is covered in any of the other instructions. Hailey [sic] points out among other things that a heat of passion can arise for days, weeks, and, of course, the State’s instruction on deliberate design pretty much guts that. And the law is clear, Hailey [sic] has been cited in other cases and followed. It’s an old case that has been around for a long time. In fact, it’s cited in ALR.
[THE COURT]: Has the Mississippi Supreme Court cited any instructions referring to Hailey [sic]?
[DEFENSE ATTORNEY]: No, but I couldn’t — I ran out of time in shepard-izing it. And I do have the ALR.
[PROSECUTOR]: Your Honor, I would just on the basis [sic] that it is cumulative, covered by the heat[-]of[-]passion and the deliberate[-]design instructions as well.
[THE COURT]: All right. You’ve got your exception in the record, [defense attorney].

¶ 21. The case that the defense attorney cited to the circuit court is Haley v. State, 123 Miss. 87, 85 So. 129 (1920). It is true that Instruction D-10 is quoted nearly verbatim from the following passage in Haley, 123 Miss. at 104, 85 So. at 131:

Whether there has been cooling time is eminently a question of fact, varying with the particular case and with the condition of the party. There are some provocations which, with persons of even temperament, lose their power in a few moments; while there are others which rankle in the breast for days and even weeks, producing temporary insanity. Men’s temperaments also vary greatly as to the duration of hot blood; and it must be remembered that we must determine the questions of malice in each case, not by the standard of an ideal ‘reasonable man,’ but by that of the party to whom the malice is imputed.

This case is more than ninety years old; although never overruled, we have also not found any subsequent appellate case that has cited this particular language favorably. Furthermore, the above passage is not the Mississippi Supreme Court’s own words; rather, the Haley court was quoting a passage from Wharton’s Criminal Law.

¶ 22. The information that this instruction was attempting to convey had already been given in other instructions; therefore, we agree that the instruction is dupli-cative. Deliberate design and the time period during which it may arise had already been adequately explained' by Instructions S-9 and S-3. Although none of the given instructions explicitly informed the jury to determine deliberate design from Jackson’s point of view, the instructions implicitly told the jury that it would have to consider Jackson’s state of mind. For example, Instruction S-9 states: “‘Deliberate’ always indicates full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences. ‘Design’ means to calculate, plant,] or contemplate.” Furthermore, the jury was never told to consider deliberate design from an objective standpoint.

¶ 23. Considering all of the above, we find no merit to this contention.

2. Impeachment

¶24. Jackson contends that the State was improperly allowed to impeach Terry King, one of Jackson’s character witnesses, with evidence of a prior conviction. During King’s cross-examination, the following exchange occurred:

[PROSECUTOR]: Have you ever been convicted of a felony?
[KING]: Yes, sir.
[PROSECUTOR]: Okay.
Nothing further, your Honor.
[DEFENSE ATTORNEY]: Just objection, unless they tell us what crime it was.
[COURT]: Well he can if he wants to give the nature of the crime, but can’t [sic] go into the specifics of it.
[DEFENSE ATTORNEY]: Correct.
[PROSECUTOR]: I just asked if he was a convicted felon.
[COURT]: Right.
[DEFENSE ATTORNEY]: Judge, that is a fishing question. If he didn’t even know what he’s been convicted of, it may be one that is not admissible under [Rule] 609, and he just flat out asked a question during [c]ross[-ex-amination] where he had no reasonable basis to ask the question, which you can’t do.
[PROSECUTOR]: Your Honor, if I may respond, I will follow-up on my question.
[COURT]: All right.
[PROSECUTOR]: Mr. King, were you convicted of controlled substance— possession of a controlled substance [on] July 22nd, 2002?
[KING]: Yeah. That was—
[DEFENSE ATTORNEY]: We object, judge, because he knows that is not one that is impeachable under [Rule] 609. Should have never brought it up. That is improper cross-examination of this witness. And, judge, I’m going to request a mistrial.
[PROSECUTOR]: Your Honor, if I may respond, this is not a party witness. It is a non-party witness of which any prior felony conviction is admissible under [Rule] 609.
[COURT]: All right. The objection will be overruled.

¶ 25. Rule 609 of the Mississippi Rules of Evidence governs the impeachment of witnesses by evidence of a prior conviction. The rule states, in pertinent part, that:

(a) General Rule. For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 408, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted....
* * *
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction ... substantially outweighs its prejudicial effect.

Rule 403 of the Mississippi Rules of Evidence states that relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

¶ 26. The comment to Rule 609 attempts to explain why non-party witnesses are treated differently from party witnesses under the rule:

Rule 609(a)(1) was amended in 2002 to incorporate the rationale of decisions by the Mississippi Supreme Court which recognized the difference in the highly prejudicial effect of showing the convictions when the witness is the accused and the little prejudicial effect from such impeachment of other witnesses. It was reasoned that when the impeachment by convictions is of a witness other than the accused in a criminal case[,] there is little or no unfair prejudice which can be caused to a party. Thus, the probative value on the credibility of the witness will almost always outweigh any prejudice.

¶ 27. We review the circuit court’s decision to allow the impeachment evidence under an abuse-of-discretion standard. Strickland v. State, 980 So.2d 908, 919 (¶ 18) (Miss.2008).

¶ 28. The circuit court in this case did not perform a Rule 408 balancing test, although it should have before allowing the evidence. Young v. State, 731 So.2d 1145, 1151 (¶ 39) (Miss.1999); Peterson v. State, 518 So.2d 632, 636 (Miss.1987). Nevertheless, we find no reversible error. In Young, the Mississippi Supreme Court stated the following about the impeachment of a non-party witness in a criminal trial: “What the trial judge failed to consider is because [the witness] is not a party in this case, any prejudice to him is irrelevant.” Young, 731 So.2d at 1151 (¶ 39). This statement led to the 2002 revision of Rule 609.

¶ 29. In this case, the details of King’s prior conviction were introduced at trial only because Jackson’s counsel objected and requested that the State give the details of the crime. Furthermore, had the circuit court conducted a Rule 403 balancing test, there is no doubt that it would have found that the probative value of the conviction outweighed its prejudicial effect. As the Young court stated, any prejudice to King was irrelevant. Jackson argues that the introduction of the evidence was prejudicial to him because it indicated that he socialized with a convicted felon. By this standard, any prior conviction of a defense witness who personally knew the defendant would be too prejudicial to allow. Such is clearly not the case. There was nothing about King’s crime that was related to Jackson’s murder charge. Furthermore, Jackson’s good character was testified to by several other witnesses. Therefore, even if King’s credibility was improperly challenged, the evidence that he offered was cumulative.

¶ 30. Under these circumstances, any error in admitting the evidence was, at worst, harmless. This contention of error is without merit.

3. Sufficiency and Weight of the Evidence

¶31. In his final contention of error, Jackson challenges the weight and sufficiency of the evidence against him. We address these two issues separately below.

a. Sufficiency of the Evidence

¶ 32. The Mississippi Supreme Court has a well-established standard of review for claims regarding the sufficiency of the evidence supporting a conviction:

A motion for directed verdict challenges the sufficiency of the evidence, and “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’ ” [Jones v. State, 904 So.2d 149, 153 (¶ 12) (Miss.2005)]. In judging the sufficiency of the evidence, “the trial judge is required to accept as true all evidence that is favorable to the State, including reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the defendant.” [Clemons v. State, 460 So.2d 835, 839 (Miss.1984) ].

Thomas v. State, 42 So.3d 528, 537-38 (¶ 31) (Miss.2010).

¶ 33. In order to prove that Jackson committed murder, the evidence must show that Jackson (1) killed Strickland (2) without authority of law but with (3) the “deliberate design to effect his death.” Brown v. State, 965 So.2d 1023, 1030 (¶ 27) (Miss.2007) (citing Dilworth v. State, 909 So.2d 731, 736 (¶ 18) (Miss.2005)). There is no factual question with regard to the first two. It is clear that Strickland died as a result of the wounds that Jackson inflicted upon him, and there has been no allegation that Jackson had any authority to kill Strickland. As to deliberate design, the Brown court stated the following:

“Deliberate design to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent.” Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995) (quoting Windham v. State, 520 So.2d 123, 127 (Miss.1987)). This Court has acknowledged that deliberate-design connotes an intent to kill and may be inferred through the intentional use of any instrument which, based on its manner of use, is calculated to produce death or serious bodily injury. Wilson v. State, 936 So.2d 357, 364 (Miss.2006) (internal citations omitted). In Wilson, this Court found sufficient evidence to convict the defendant of deliberate-design murder where the victim had been beaten and repeatedly stabbed by the defendant. This Court also has recognized that shooting a victim with a gun constituted deliberate-design murder. See Jones v. State, 710 So.2d 870 (Miss.1998); Hawthorne v. State, 835 So.2d 14 (Miss.2003).

Brown, 965 So.2d at 1030 (¶ 28). Our supreme court has also provided a definition for both “deliberate” and “design” in the context of deliberate-design murder: “As defined by dictionaries the word ‘deliberate’ always indicates full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences. ‘Design’ means to calculate, plan, contemplate. These are general and accepted meanings of these words.” Windham, 520 So.2d at 126.

¶ 34. In the present case, Jackson found out about his wife’s infidelity approximately two weeks before Strickland’s murder. After unintentionally encountering Strickland at a gas station, Jackson went to his vehicle and retrieved a knife. According to at least one witness, Jackson concealed the knife in his clothing before approaching Strickland. Another witness testified that Jackson’s initial attack on Strickland was so severe that Strickland’s internal body organs were visible outside of his body. Jackson then got in his vehicle and followed Strickland across the street, where Jackson exited the vehicle and stabbed at an unresisting Strickland multiple times. After the attack, Jackson drove away from the scene and deposited the knife in the middle of a driveway. Once home, Jackson took off his bloody clothing and placed it in a washing machine, although he did not turn the machine on. Jackson claimed at trial that he was in a sort of fugue state during the attack and that he was unable to pinpoint when he came to his senses. He also did not mention the blackout to the detective who interviewed him shortly after the stabbing.

¶ 35. Under these circumstances, we find no error with the circuit court’s denial of Jackson’s motion for a directed verdict. There is sufficient evidence from which reasonable persons could conclude that Jackson acted with deliberate design when he attacked and killed his wife’s lover. The evidence is such that, giving the State the benefit of all reasonable inferences therefrom, reasonable jurors could find that each element of the crime of deliberate-design murder was proved beyond a reasonable doubt.

¶ 36. This contention of error is consequently without merit.

b. Weight of the Evidence

¶ 37. According to the Mississippi Supreme Court, when confronted with a claim that the conviction in a case is contrary to the overwhelming weight of the evidence, “we defer to the discretion of the trial judge, and ‘we will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that ... to allow it to stand ... would be to sanction an unconscionable injustice.’ ” Long v. State, 33 So.3d 1122, 1125 (¶ 5) (Miss.2010) (quoting McLendon v. State, 945 So.2d 372, 385 (¶ 40) (Miss. 2006)).

¶ 38. For the same reasons that we found that the evidence in this case is sufficient, we also find that allowing Jackson’s murder conviction to stand does not sanction an unconscionable injustice. Accordingly, this contention of error is without merit.

¶ 39. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Jeffery Marcel ROBINSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01154-COA.
    Court of Appeals of Mississippi.
    March 22, 2011.
    Rehearing Denied June 21, 2011.
    Certiorari Denied Sept. 1, 2011.
    Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.

      GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. Jeffery Marcel Robinson appeals his conviction on the basis that he received ineffective assistance of counsel. We find no error and affirm.

FACTS

¶ 2. On March 18, 2008, Batesville police officers Michael Hardin and Freddie Payne were on patrol. They came upon a red pickup truck driven by Robinson. The officers testified that Robinson’s truck’s stereo was very loud in violation of a Batesville city ordinance. As a result of this violation, they performed a traffic stop.

¶ 3. Officers Hardin and Payne approached the truck and asked Robinson for his driver’s license. Robinson claimed he had left it at home. Officer Hardin then asked Robinson for his name, date of birth, and age. Robinson gave an age and a date of birth that were not consistent. Officer Hardin also testified that Robinson appeared to be very nervous.

¶4. The officers ordered Robinson to step out of the truck. Officer Payne then performed a pat-down search to insure that Robinson was not armed. Officer Payne then asked Robinson for consent to search his person. Robinson consented. Officer Payne discovered a tightly rolled one-dollar bill in the pocket of Robinson’s pants, which Officer Payne knew to be associated with cocaine use. The officers then asked Robinson for consent to search the truck. Robinson consented. They discovered a piece of a plastic sandwich bag with white powdery residue on it.

¶ 5. Officer Payne testified that, based on his experience, he knew that people in Robinson’s position sometimes hid drugs in their mouths. He ordered Robinson to open his mouth. Robinson opened his mouth, and Officer Payne could see a white object underneath Robinson’s tongue. Robinson tried to swallow the object, so Officer Payne grabbed him by the neck, just underneath the Adam’s apple, to prevent him from swallowing. Eventually, Robinson spit the object out of his mouth. It was a heat-sealed plastic bag containing an off-white rock-like substance. The crime laboratory later determined the substance to be 0.3 gram of crack cocaine.

¶ 6. The following day, Officer Payne visited Robinson in jail. Officer Payne testified that Robinson waived his Miranda rights and confessed that the cocaine belonged to him.

¶ 7. Robinson was convicted for possession of at least 0.1 gram but less than two grams of a Schedule II controlled substance in violation of Mississippi Code Annotated section 41 — 29—139(c)(1)(B) (Rev. 2009). Robinson was sentenced as both a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007) and as a subsequent drug offender under Mississippi Code Annotated section 41-29-147 (Rev.2009). He was sentenced to twelve years in the custody of the Mississippi Department of Corrections without eligibility for probation or parole.

ANALYSIS

¶ 8. Robinson argues that his attorney provided ineffective assistance and, thus, deprived him of his constitutional right to counsel. The basis for Robinson’s claim is that his attorney did not move for a directed verdict at the close of the State’s case-in-chief and that he did not request a peremptory jury instruction. Robinson contends that these omissions amount to ineffective assistance of counsel.

¶ 9. To prove ineffective assistance of counsel, Robinson must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Robinson to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 10. Furthermore, the merits of an ineffective-assistance-of-counsel claim on direct appeal should be addressed only when “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding -without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999). If this Court does not reverse on other grounds and is unable to conclude that the defendant received ineffective assistance of counsel, it should affirm “without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.” Id. Review on direct appeal of an ineffective-assistance-of-counsel claim is confined strictly to the record. Id. at 1102 (¶ 6).

¶ 11. Robinson’s appeal is based on the authority found in Holland v. State, 656 So.2d 1192 (Miss.1995). In Holland, the defendant was convicted of possession of cocaine with intent to distribute. Id. at 1194. His attorney did not move for a directed verdict, request a peremptory instruction, or file a single post-trial motion. Id. at 1197. Because of those omissions, the circuit court did not have an opportunity to examine the sufficiency of the evidence. Id. at 1197-98. On appeal, the Mississippi Supreme Court found that there was insufficient evidence that the defendant intended to distribute the cocaine. Id. at 1198. In turn, the supreme court held that the attorney’s failure to raise a sufficiency challenge before the circuit court amounted to ineffective assistance of counsel. Id. The supreme court found that there was a reasonable probability that, had the attorney raised a sufficiency challenge, the circuit court would have ruled in favor of the defendant. Id.

¶ 12. Here, Robinson does not establish a reasonable probability that, had his attorney moved for a directed verdict or requested a peremptory instruction, the circuit court would have ruled in his favor. Unlike in Holland, here, there was ample evidence to support Robinson’s conviction for possession of cocaine. Officers Hardin and Payne testified that Robinson had the cocaine in his mouth, which the crime lab determined amounted to 0.3 gram. In addition, Officer Payne testified that, on the day following the arrest, Robinson admitted that the cocaine belonged to him. Thus, had Robinson’s attorney challenged the sufficiency of the evidence in a motion for a directed verdict or a request for a peremptory instruction, the circuit court would have been correct to deny the motion and the request. Robinson has not shown that his attorney’s alleged deficiencies prejudiced his defense. Thus, he has not met the second prong of the Strickland test.

¶ 13. We find that the record before us on appeal is insufficient to address any other potential claim of ineffective assistance of counsel. As such, we deny relief on the ineffectiveness claim made by Robinson in this appeal and affirm his conviction without prejudice to Robinson so that he may, if he so chooses, present any other potential claim of ineffective assistance of counsel not apparent in the record before us that he may have.

¶ 14. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF TWELVE YEARS AS A HABITUAL AND SUBSEQUENT OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

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


author: CARLTON, J„

text:
    Anthony CRUTCHER, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01819-COA.
    Court of Appeals of Mississippi.
    April 12, 2011.
    Rehearing Denied June 21, 2011.
    Certiorari Denied Sept. 1, 2011.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   CARLTON, J„

for the Court:

¶ 1. A jury in the DeSoto County Circuit Court convicted Anthony Crutcher of selling cocaine. The trial court sentenced Crutcher to sixty years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Crutcher appeals raising the following issues for this Court’s review: whether (1) the trial court erred in denying Crutcher’s request for a mistrial during voir dire; (2) the trial court erred in finding that a sufficient evidentiary foundation existed for the videotape of the drug sale to be admitted into evidence; (3) the trial court erred in finding that the State established a proper chain of custody allowing the cocaine to be admitted into evidence; and (4) Crutcher’s sentence is proper. Finding no error, we affirm.

FACTS

¶ 2. A grand jury indicted Crutcher as a Mississippi Code Annotated section 99-19-81 (Rev.2007) habitual offender and as a subsequent offender pursuant to Mississippi Code Annotated section 41-29-147 (Rev. 2009) on two counts of the sale of a controlled substance, cocaine. A trial commenced on September 14, 2009, in the Circuit Court of DeSoto County. At the trial, Lieutenant Jeremy Degan, the supervisor of the Special Investigations Division, testified that on June 20, 2007, he and some other agents from the Metro were performing controlled drug transactions on the eastern side of DeSoto County. Lieutenant Degan and the other agents used two confidential informants, Robert Smith and Donna Washington, to aid in the operations. Lieutenant Degan testified that he placed an audio listening device and an audio/video recording device on Smith’s person and that a secondary concealed video recording device was placed inside the vehicle that Smith and Washington were using in the controlled operations. Smith testified at trial that on June 20, 2007, he, at the direction of the Metro, traveled to Molly Wells’s, a/k/a Jennie Walls’s, residence with the intention of purchasing cocaine from her. Smith further testified that Molly was not home when he arrived, so he decided to leave her house. Smith then testified that as he was starting back to his vehicle, Crutcher pulled into the residence. Smith testified that he purchased two rocks of cocaine from Crutcher for forty dollars.

¶3. At the conclusion of the trial, the jury found Crutcher guilty of selling cocaine. The trial court then sentenced Crutcher to sixty years in the custody of the MDOC as a habitual and subsequent offender. Aggrieved, Crutcher appeals.

DISCUSSION

I. MOTION FOR MISTRIAL

¶ 4. During voir dire, a prospective juror asked the prosecutor the following question, which elicited the allegedly prejudicial response:

JUROR: You said the Prosecution is the only one that’s going to have witnesses.
PROSECUTOR: The defense is never required to put on any witnesses. That’s going to be up to the Defendant. I have the burden of proof. I have to prove something to you. Okay? It’s up to the Defense if they want to put on witnesses or offer testimony—

Crutcher objected to the State’s response to the juror’s question and moved for a mistrial, which the trial court subsequently denied. On appeal, Crutcher argues that the State, when conducting voir dire, improperly commented on his right to remain silent and not to testify. The State argues in response that the comments in no way implied that Crutcher’s choice not to testify was improper or indicated that Crutcher was guilty. The State further contends that the trial court gave, without objection, an instruction which was very similar to the alleged prejudicial response made by the prosecutor.

¶ 5. The standard of review utilized by this Court when reviewing a denial of a motion for a mistrial is abuse of discretion. Tate v. State, 20 So.3d 623, 629 (¶ 13) (Miss.2009) (citing Dora v. State, 986 So.2d 917, 921 (¶ 8) (Miss.2008)). “The trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant’s case.” Gilbert v. State, 48 So.3d 516, 521 (¶ 20) (Miss.2010) (quoting Gossett v. State, 660 So.2d 1285, 1290 (Miss.1995)). In determining whether a mistrial is warranted, the trial court possesses considerable discretion since the trial judge is in the best position to measure the prejudicial effect. Id. (citing Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990)).

¶ 6. A defendant’s right to remain silent is a federal and state constitutional requirement. Alexander v. State, 610 So.2d 320, 339 (Miss.1992). “In all criminal prosecutions the accused shall ... not be compelled to give evidence against himself.” Id. (citing Miss. Const, art. 3 § 2[6]). “No person ... shall be compelled in any criminal case to be a witness against himself.” Id. (citing U.S. Const, amend. V). The Mississippi Supreme Court has held that any reference to a defendant’s failure to testify, implying that such failure is improper or indicating that the defendant is guilty, is improper. Dora, 986 So.2d at 923 (¶ 11) (citing Wright v. State, 958 So.2d 158, 161 (¶ 7) (Miss.2007)). The Mississippi Supreme Court further elaborated on the reference to the defendant’s failure to testify by stating the following:

The [S]tate is entitled to comment on the lack of any defense, and such comment will not be construed as a reference to the defendant’s failure to testify by innuendo and insinuation. Shook v. State, 552 So.2d 841, 851 (Miss.1989) (emphasis added). The question is whether the prosecutor’s statement can be construed as commenting upon the failure of the defendant to take the stand. Ladner v. State, 584 So.2d 743, 754 (Miss.1991).
Wright, 958 So.2d at 161 (emphasis added). This approach effectively prevents “the protective shield of the Fifth Amendment” from being “converted into a sword that cuts back on the area of legitimate comment by the prosecutor on the weaknesses in the defense case.” [U.S. v.] Robinson, 485 U.S. [25,] 32, 108 S.Ct. 864 [99 L.Ed.2d 23] [(1988)] (quoting United States v. Hasting, 461 U.S. 499, 515, 103 S.Ct. 1974, 1984, 76 L.Ed.2d 96, 110 (1983) (Stevens, J., concurring) (citation omitted)).
“[P]roseeutorial comment must be examined in context!.]” Robinson, 485 U.S. at 33, 108 S.Ct. 864. “When the statement is not an outright violation, this Court will review the facts on a case-by-case basis.” Wright, 958 So.2d at 166 [ (¶ 24) ] (citing Logan v. State, 773 So.2d 338, 348 [ (¶ 38) ] (Miss.2000)). Furthermore, “not every comment regarding the lack of any defense is automatically deemed to point toward the defense’s failure to testify.” Id. (citing Jimpson v. State, 532 So.2d 985, 991 (Miss.1988)).

Dora, 986 So.2d at 923 (¶¶ 11-12). If a question arises as to the prosecution’s comment on the defendant’s failure to testify, each case must be considered on an individual basis on the facts of that particular case. De La Beckwith v. State, 707 So.2d 547, 584 (¶ 148) (Miss.1997) (citations omitted). Even if an error occurs, such comment is deemed harmless beyond a reasonable doubt where the evidence of guilt is “so overwhelming that the jury would have returned a guilty verdict in spite of the prosecutor’s comment.” Id. (citing Lee v. State, 435 So.2d 674, 678 (Miss.1983); Conway v. State, 397 So.2d 1095, 1100 (Miss.1980)). The Mississippi Supreme Court explained that this is especially true in cases that do not involve the defendant facing the death penalty. Id.

¶7. Crutcher relies on Hines v. State, 389 So.2d 56, 57 (Miss.1976) to support his argument. In Hines, the prosecutor asked the venire panel, “Do each of you realize that the defendant has the right not to testify in this case? You are not to draw any inference as to guilt or innocence of the defendant whether he does or does not take the stand.” Id. The defense objected and moved for a mistrial, which was subsequently overruled by the trial court. Id. On appeal, the Mississippi Supreme Court reversed, finding that the prosecutor’s remarks coupled with the defendant’s decision not to testify were tantamount to an improper statement on the failure to testify by the defendant. Id. Hines, however, is distinguishable from this ease both factually and legally. In the present case, the prosecutor discussed the defendant’s option of putting on evidence and testimony, while the prosecutor in Hines expressly spoke to the defendant’s right not to testify. In addition, the Court in Hines relied on Mississippi statutory authority which has since been repealed.

¶ 8. In the case at hand, this Court finds no abuse of discretion on the part of the trial court in denying Crutcher’s motion for a mistrial. In denying Crutcher’s motion, the trial court stated the following outside the presence of the jury:

First and foremost, Mr. Jubera’s [the prosecutor] statements — first of all, obviously they were correct statements of the law. The [defendant does not have to call witnesses and that’s their decision, some form of that statement. I will note also that statement is very close to one of the standard Court’s jury instructions that is given that says the defendant does not have to put on any evidence at all as to their innocence, so to speak. The instruction will speak for itself, but does not have to put on any evidence on the topic of their guilt or innocence. Mr. Jubera’s statement I feel does not reference a failure of Mr. Crutcher to testify or call witnesses. I will note that many, many times the defense lawyer goes over that with the jury panel; but that’s a strategic decision. I will note that Mr. Jones made the strategic decision not to go over that in this case. So I don’t feel like that it meets the criteria that would require a mistrial. As indicated, as to any admonishment of the jury, they will get that by the jury instruction which indicates that Mr. Crutcher does not have to put on any evidence at all upon the subject.

¶ 9. This Court recognizes the limited standard of review that applies when reviewing a trial court’s denial of a motion for a mistrial. In the case at hand, we recognize that the prosecutor simply remarked that the “defense is never required to put on any witnesses” and did not speak to Crutcher’s failure to testify nor his right to remain silent. Therefore, we find no abuse in discretion in the trial court’s denial of the motion and hold that this issue is without merit.

II. EVIDENTIARY FOUNDATION

¶ 10. In Crutcher’s second assignment of error, he argues that the trial court erred in allowing the videotape of the drug sale into evidence, arguing that the State failed to lay a sufficient eviden-tiary foundation for the evidence in accordance with Mississippi Rule of Evidence 901(b)(1). Specifically, Crutcher argues that the State did not put on evidence that the recording equipment was operating correctly and that there was no showing, through a person with knowledge, that the video recording displayed an accurate representation of the drug buy. In response, the State asserts that the trial court did not abuse its discretion in allowing the videotape of the drug sale into evidence, as the videotape was properly authenticated by the two police officers who testified at trial that authenticated the videotape.

¶ 11. This Court employs an abuse-of-discretion standard of review when reviewing for the admission or exclusion of evidence. Newell v. State, 49 So.3d 66, 71 (119) (Miss.2010) (citing Mingo v. State, 944 So.2d 18, 28 (¶ 24) (Miss.2006)). The supreme court has previously stated that “[w]e will not reverse the trial court’s evidentiary ruling unless the error adversely affects a substantial right of a party.” Id. See M.R.E. 103(a).

If 12. Prior to its admission into evidence, a document or photograph must be authenticated. Conway v. State, 915 So.2d 521, 526 (1118) (Miss.Ct.App.2005) (citing M.R.E. 901). “The same standards used in determining the admissibility of photographs are applicable to the admission of videotapes.” Griffin v. State, 918 So.2d 882, 884 (¶ 9) (Miss.Ct.App.2006) (citing Seals v. State, 869 So.2d 429, 433 (¶ 13) (Miss.Ct.App.2004)). Mississippi Rule of Evidence 901 speaks to the authentication requirements for admission of evidence. Rule 901 provides the following in pertinent part:

(a) The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be.

This Court has previously held that in order for a videotape to be entered into evidence through a witness, it must be authenticated “by someone who can testify that the events on the tape accurately depict the transaction as it occurred on the day in question.” Conway, 915 So.2d at 526 (¶ 19) (citing Seals, 869 So.2d at 433 (¶ 13)).

¶ 13. In the present case, the State presented the testimony of Lieutenant De-gan and Agent Danny Wilkey to authenticate the videotape of the drug transaction that occurred on June 20, 2007. In response to the State’s questions during direct examination, Lieutenant Degan testified as follows:

Q: Were you employed or on duty on June 20, 2007?
A: Yes, sir.
Q: What were your duties on that day?
A: We were performing controlled drug transactions on the eastern side of the county.
Did you employ a confidential informant in that? O’
We did. <1
Who was that confidential informant? O’
Robert Smith and his wife, Donna Washington.
What was your role in that investigation? «©
I was a cover unit and just assisting the case agents with preparing for the transactions.
In preparing for the transactions, what if anything did you do? <©
After the informants were searched, I placed upon Mr. Smith an audio listening device as well as an audio/video recording device.
Was there another — aside from the one that you just talked about, was there another audio/video device used? O’
Yes, sir. We used a secondary concealed device inside the vehicle, a concealed video device, a concealed video recording device.
Did those audio/video devices successfully capture audio and video? O’
Yes, sir. <!
Once the audio and video is successfully captured, what’s the procedure for maintaining that audio and video? O
The device is taken back to the office. It’s connected to a desk top computer. There is a specialized program that we use with the device that prevents us from editing the video. We transfer the data from the device to the computer, and from there we put it on some form of hardware, i.e., CD.
Did you have an opportunity to review a CD or DVD in this case? <©
I did.
Q: I’m handing you an item now. Do you recognize that?
A: Ido.
Q: What do you recognize it to be?
A: This is the video, disk, DVD disk that has the video from our case number DC-07-0110 from June 20, 2007.
Q: Did you have an opportunity to review it prior to this case?
A: I did.
Q: Is it a fair and accurate representation?
A: Yes, it is.

Agent Wilkey testified to the following during direct examination by the State:

Q: What steps do you take to protect— when using a confidential informant, what steps do you take to protect the integrity of your investigation?
A: For one thing you do is you try to gauge the person and make sure they have some type of reliability. You set up times for them to call you and make sure their responsible enough to call you when you tell them to. Before you go do a buy, you make sure you search them and their person to make sure they don’t have any guns or knives or any drugs on them at the time. Also, we place an audio transmitting device on their person, which all that does is anything that’s in close range around them, it transits with that audio system, and we can listen to it here. So at all times we have some type of audio surveillance. We know what’s going on. We know what he’s saying and the bad guy is saying. So if you were to have any distress code or anything like that that he needs help or she needs help, that we might be able to come in and intervene.
Q: Is there a log kept of a transaction?
A: Yes.
Q: Was a log kept in this instance?
A: Yes, sir.
Q: What information is on that log?
A: It’s called a purchase of evidence sheet. It’s basically [a] chronological log of times of when we searched the informant or informants, when we searched their vehicle, when money was issued to them, who placed a wire on them, what time they arrived at the location, when they met the suspect, what time they bought the illicit drug from the suspect and so on.
Q: The procedures that you just testified about, were they followed in this case?
A: Yes, sir. They were.
Q: And did you participate in an investigation on June 20th of 2007?
A: Yes, sir. I did.
Q: Briefly explain to us what you did in the course of that investigation?
A: We met with the informants — well, I guess their name is used now— Robert Smith and Donna Washington at what’s called an undisclosed prebuy location. It’s just a place out in the field so we wouldn’t have to meet them at the office that’s secluded and can’t see easily from the road. Once we’ve met with them, Officer Cassada, that y’all met earlier this morning, searched Mr. Smith and the female Donna Washington was searched by Agent Cody, who’s currently in Japan living the good life right now. And then Mr. Cassada searched the vehicle, and in all the searches, nothing was found, no contraband, no weapons. No illicit drugs. Lieutenant Degan placed the audio transmitting device that I was talking about on Mr. Cassada who just got off the stand, and Commander Lamfear wired the vehicle, placed the Peter in the vehicle, which helps the audio signal get out a little bit further, kind of like a radio antenna, so we could be further back to listen. And once we did that and performed the search of the vehicle, we turned the audio and video equipment on, and then the informants left that location towards where they were going to meet the suspect at, and we followed along behind them.
Q: You testified about the recording devices. Did you have an opportunity to review what was recorded?
A: Yes, sir.
(Videotape was played for the jury).
Q: Agent Wilkey, are you familiar with this?
A: Yes, sir.
Q: Where is this location at?
A: It’s 7108 Center Hill Road in Olive Branch, Mississippi.
Q: What county?
A: De[S]oto County, sir.
(Videotape was played for the jury)
Q: Agent Wilkey, what camera was that taken from? Generally speaking, where was it located?
A: It was located on the driver’s side door facing out the passenger’s side door. The reason why we placed one there is, you know, with some deals, a lot of people will come up to the passenger side window and just do the transaction there. That’s why the camera was at the passenger’s side.
Q: Is there a second video?
A: Yes, sir. He had a video concealed on his person, which the next video showed a different view on that transaction.
(Videotape was played for the jury)
Q: Agent Wilkey, are you familiar with this location?
A: Yes.
Q: Where is it, sir?
A: 7108 Center Hill Road in De[S]oto County, Mississippi.
Q: Is that the same location that you previously identified?
A: Yes, sir.
(Videotape was played for the jury)
Q: Agent Wilkey, were all policies and procedures followed in this case?
A: Yes, sir. They were.
Q: Has there been any, to your knowledge, tampering with the evidence?
A: No, sir.

During cross-examination of Agent Wilkey by the Defense, the following exchange occurred:

Q: Now, when this — you weren’t at the scene of this alleged crime, were you?
A: No, sir. I wasn’t on that property address with them when it happened, but I was within audio — I could hear the transaction over the body wire, sir.

¶ 14. Upon a review of the record, we find that Lieutenant Degan and Agent Wilkey were proper witnesses to present testimony to authenticate the videotape that depicted the drug sale. See Conway, 915 So.2d at 526 (¶¶ 18-19). While we acknowledge that Lieutenant Degan and Agent Wilkey were not at the actual property address while the drug transaction was occurring, we find that the record reflects that the officers’ testimonies satisfied the authentication requirements of Rule 901(b)(1). We note that Lieutenant Degan and Agent Wilkey testified to the following: their officers placed the audio/video recording devices on Smith’s person, as well as the vehicle employed by Smith during the operation; they were familiar with the scene; and they listened by audio device to the drug transaction as it occurred. The record also reflects that Lieutenant Degan established a proper chain of custody for the videotape through his testimony, thereby allowing the videotape to be admitted into evidence. This Court, therefore, finds that the videotape was sufficiently authenticated “by someone who [testified] that the events on the tape accurately depict[ed] the transaction as it occurred on the day in question.” Conway, 915 So.2d at 526 (¶ 19). As such, we hold that the trial court’s decision to allow the videotape into evidence was not an abuse of discretion. This issue lacks merit.

III. CHAIN OF CUSTODY

¶ 15. In his third assignment of error, Crutcher argues that the chain of custody for the cocaine was insufficient; thus, the trial court should have excluded the evidence. The State responds that the chain of custody was established and that Crutcher failed to show that any indication of tampering or substitution of evidence existed.

¶ 16. When reviewing a trial court’s admission of evidence, this Court applies an abuse-of-discretion standard of review. Shumaker v. State, 956 So.2d 1078, 1084 (¶ 18) (Miss.Ct.App.2007) (citing Smith v. State, 839 So.2d 489, 496 (¶ 17) (Miss.2003)). We stated:

Trial court decisions in matters regarding the chain of custody of evidence will not be disturbed absent a finding of abuse. Anderson v. State, 904 So.2d 973, 979 (¶ 19) (Miss.2004). The “test for the continuous possession [I.e., ‘chain of custody’] of evidence is whether or not there is any indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.” Id. (quoting Gibson v. State, 503 So.2d 230, 234 (Miss.1987)). “‘In such matters, the presumption of regularity supports the official acts of public officers,’ and, thus, the burden to produce evidence of a broken chain of custody is on the defendant.” Id. (quoting Nix v. State, 276 So.2d 652, 653 (Miss.1973)).

Id.

¶ 17. After reviewing the present case, we find that the record reflects that Crutcher raised no evidence or reasonable inference to support the assertion that the cocaine was tampered with or that a substitution of the evidence occurred. Therefore, Crutcher failed to meet his burden of proof to establish a break in the chain of custody to overcome the presumption of regularity. See Anderson, 904 So.2d at 979 (¶ 19). At trial, Lieutenant Degan and Agent Wilkey both testified to the chain of custody for the drug evidence. Lieutenant Degan testified that after he and the other officers placed audio/video devices on Smith’s person and in the vehicle used by Smith in the operation, Smith and Washington departed and returned shortly thereafter. Lieutenant Degan further testified that he received an amount of base cocaine from Smith upon their return and placed it in a plastic bag until it was transported to the office, where it was placed in a heat-sealed bag and labeled. Lieutenant Degan also identified the cocaine at trial as the base cocaine given to him by Smith on June 20, 2007. Lieutenant Degan then testified to the procedures employed by the Metro when possessing and storing evidence. Lieutenant Degan testified that the standard procedures were followed in this case and that the evidence was not tampered with to his knowledge. Agent Wilkey also testified that all policies and procedures relating to the preservation of evidence were followed in the present case and that the evidence to his knowledge was not tampered with.

¶ 18. Crutcher argues that the Metro’s purchase of evidence form incorrectly states the date of the drug sale as May 24, 2007, causing a contradiction with the testimony from both officers as to when the drug sale actually occurred. The record reveals, however, that Agent Wilkey explained this discrepancy during redirect examination by the State by testifying to the following:

Q: Can you explain that date, please?
A: Yes, sir. That was a typographical error on my part.
Q: Does that change any of the — review it, take a look at it and make sure. Does that change any of the substance of that?
A: No, sir. The date is wrong, but the case number and the times and the notes of who did what at what times coincide with that case number. So the date is wrong. It should be June 20th, 2007.

Furthermore, this Court notes that Crutcher was also indicted on May 24, 2007, in Count I of the indictment for selling cocaine. We have held that “proof is not necessarily defective just because a technical problem with one of the links in the chain is shown”; therefore, we find this issue is without merit. Robinson v. State, 733 So.2d 333, 336 (¶ 6) (Miss.Ct.App.1998); see Cockerham v. State, 752 So.2d 431, 434 (¶ 9) (Miss.Ct.App.1999) (finding “[p]roof regarding the chain of custody is not necessarily defective just because a technical problem with one of the links exists”).

¶ 19. Crutcher also argues that a proper chain of custody was not established because the cocaine was not entered into a secure vault until a week after the drug sale. We find this argument to be unsupported by the evidence in the record. Agent Wilkey summarized the chain of custody of the cocaine, providing insight as to why the cocaine was not placed in a “secure vault” until June 27, 2007, by testifying to the following:

The reason — these forms are a little difficult, and I wish I could blow it up for you. It lists the suspect, correct, and then it’s got the date and the time that the evidence went to the next person below it. So here it says suspect, June 20, 2007, at 16:49, 4:49, and it went to at that time the informant, who’s the informant. And then it went from the informant at this time and date to Lieutenant Degan. From Lieutenant Degan this time and date to the vault. And then from the vault, on the 27th this time and date it went to myself, Agent Wilkey, because I took it down to the [c]rime [l]ab. And I gave it to Ms. Colleen Lester. Agent Wilkey, this time and date, to Colleen Lester. Now, Colleen Lester didn’t give it to nobody else [sic] so there is no time and date by her name. The next person is Jacqueline Johnson who Agent Leslie retrieved the dope from when he went down to pick it up at a later date on the 24th of 2007, which they tested it on July 19th, 2007, but we didn’t go down there and pick it up until the 24th of July, 2007.

¶ 20. After reviewing the record under the limited abuse-of-discretion standard of review, we find that sufficient evidence as to the chain of custody was presented at trial to allow the jury to make the determination that the State maintained proper custody of the evidence at issue. We also recognize that Crutcher failed to meet his burden in proving a break in the chain of custody as required by Mississippi law to overcome the presumption of regularity. See Anderson, 904 So.2d at 979 (¶ 19). Accordingly, we find no abuse of discretion in the trial court’s decision to admit the cocaine into evidence, as a proper chain of custody existed. This issue is without merit.

IV. CRUTCHER’S SENTENCE

¶ 21. In Crutcher’s final assignment of error, he argues that his prior convictions failed to meet the requirements of a section 99-19-81 habitual offender and that his sentence was unconstitutionally disproportionate. The State responds that Crutcher’s sentence was valid and legal. The State further argues that Crutcher is procedurally barred from arguing that the habitual-offender requirements were not met, as he did not raise this issue before the trial court. The State also asserts that Crutcher’s sentence was not unconstitutional, as it was within the statutory guidelines and at the court’s discretion. See Hoops v. State, 681 So.2d 521, 537-38 (Miss.1996) (citing Reynolds v. State, 585 So.2d 753, 756 (Miss.1991)).

A. Habitual-Offender Status

¶22. The trial court sentenced Crutcher to sixty years in the custody of the MDOC as a habitual offender pursuant to section 99-19-81 and as a subsequent offender pursuant to section 41-29-147. Crutcher argues that his prior convictions do not meet the requirements of the habitual-offender statute. However, we find that Crutcher failed to raise the issue regarding his sentence at the sentencing phase; therefore, he is procedurally barred from raising it on appeal. See Heidelberg v. State, 45 So.3d 730, 732 (¶ 6) (Miss.Ct.App.2010) (finding “[w]hen an accused fails to object to the habitual[-]offender issue during the sentencing phase, he is procedurally barred to do so the first time on appeal”).

¶ 23. Notwithstanding the procedural bar, we shall address these assertions. Crutcher’s prior convictions are: (1) Cause No. 94-10135 in the Criminal Court of Shelby County, Tennessee, unlawful possession of marijuana with intent to sell, sentenced to one year in the workhouse, and (2) Cause No. 94-04728 in the Criminal Court of Shelby County, Tennessee, sale of cocaine, sentenced to three years in the workhouse.

¶ 24. Crutcher argues that his prior convictions fail to satisfy the requirements of section 99-19-81, which provides:

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 separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

“[A]n individual is not required to have actually served any prison time in order to be sentenced as a habitual offender,” and time served in a workhouse sufficiently satisfies the statutory requirements of section 99-19-81. Byrne v. State, 30 So.3d 1264, 1265 (¶ 4) (Miss.Ct.App.2010) (quoting Davis v. State, 5 So.3d 435, 441 (¶ 14) (Miss.Ct.App.2008)). See also Wilhite v. State, 791 So.2d 231, 247 (¶ 46) (Miss.Ct.App.2000) (finding no error in the trial court’s ruling that a workhouse qualifies as a state penal institution). Therefore, we find that each of Crutcher’s prior felony convictions satisfy the statutory requirement of serving time in a penal institution. In accordance with Byme and Wilhite, we find that Crutcher’s prior felony convictions met the habitual-offender requirements of section 99-19-81. Thus, this issue is without merit.

B. Unconstitutional Sentence

¶ 25. Crutcher argues that his sentence is unconstitutional because it is too severe and clearly disproportionate to the offense. Crutcher asserts that the enhanced sentence of sixty years, imposed for committing repeated drug offenses, constitutes a life sentence. In response, the State asserts that Crutcher’s sentence is within the statutory guidelines and, thus, is not unconstitutionally severe.

¶ 26. Mississippi follows the general rule that “a sentence should not be disturbed on appeal so long as it does not exceed the maximum allowed by statute.” Davis v. State, 817 So.2d 593, 597 (¶ 14) (Miss.Ct.App.2002) (citing Fleming v. State, 604 So.2d 280, 302 (Miss.1992)). The sentencing of an offender falls within the discretion of the trial judge. Id. at (¶ 15) (citing Hoops, 681 So.2d at 537). This Court has held that:

A sentence that is “grossly disproportionate” to the crime committed is subject to attack on Eighth Amendment grounds applying the proportionality test from Solem v. Helm, 463 U.S. 277, 290-91, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); but see Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (the Solem test should only apply when a comparison of the crime to the sentence leads to an inference of gross disproportionality).

Cummings v. State, 29 So.3d 859, 861 (¶ 4) (Miss.Ct.App.2010).

¶ 27. The trial court sentenced Crutch-er to serve a term of sixty years in the custody of the MDOC as a section 99-19-81 habitual offender and a section 41-29-147 subsequent offender. Crutcher’s sentence complies with section 41-29-147, which provides:

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

Crutcher’s sentence also is in compliance with section 99-19-81. We have held on numerous occasions that “[sjentences under the habitual-offender statute do not constitute cruel and unusual punishment.” Cummings, 29 So.3d at 861 (¶ 5) (citing Huntley v. State, 524 So.2d 572, 575 (Miss.1988); Jackson v. State, 483 So.2d 1353, 1355 (Miss.1986); Baker v. State, 394 So.2d 1376, 1378-79 (Miss.1981)).

¶ 28. The indictment charging Crutcher as a habitual offender and subsequent offender listed two prior convictions of the unlawful possession of marijuana with intent to sell and of the sale of cocaine. In addition, in the present case, the jury convicted Crutcher of the sale of a controlled substance, cocaine. In light of the gravity of Crutcher’s current drug offense and his prior drug offenses, the sixty-year sentence imposed on Crutcher by the trial court does not give inference of gross dis-proportionality. In accordance with Cummings, where the Court found that Cummings’s sentence did not give rise to the inference of gross disproportionality; thus, there was no need for a proportionality test, we will not proceed with an Eighth-Amendment analysis. See Cummings, 29 So.3d at 861 (¶ 6). We will note, however, that the trial court in the present case did conduct a proportionality analysis and, after doing so, found Crutcher’s sentence to be proportionate. As such, this issue lacks merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. BARNES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . Crutcher was only tried on count two in the trial that commenced on September 14, 2009, as count one, which charged Crutcher with selling cocaine to Smith and/or Washington on or about May 24, 2007, for eighty dollars, was remanded to the file.

      . The Special Investigations Division was previously known as the DeSoto County Metro Narcotics Unit (Metro).

      . In Hines, it becomes evident that the Court relied on Mississippi Code Annotated section 13-1-9 (1972) in making its decision to reverse and remand the case when the Court stated the following: "In any event the prosecutor’s remarks, coupled with the defendant's subsequent decision not to testify is tantamount to a comment on the defendant’s failure to testify and is therefore in violation of section 13-1-9.” Hines, 339 So.2d at 57. Mississippi Code Annotated section 13-1-9 (1972) provides that: "The accused shall be a competent witness for himself in any prosecution for crime against him. The failure of the accused, in any case, to testify shall not however operate to his prejudice or be commented on by counsel.” Id. (citing Miss.Code Ann. § 13-1-9). The Legislature repealed section 13-1-9 in 1991. See Wright, 958 So.2d at 164 (¶ 19).

      . Lieutenant Degan testified that the standard procedure was that upon return to the office, the evidence goes into a temporary secure vault and is later transported to the Mississippi Crime Laboratory.

      . Crutcher argues that under his prior convictions, he was not ever sentenced to a state or federal penal institution as required by our habitual-offender statute, as he served time only in the county workhouse.

      . In Byrne, Byrne, like Crutcher, argued that he did not meet the habitual-offender requirements of section 99-19-81 because his prior felony convictions were not served in a Tennessee Department of Corrections facility, but in a workhouse. Byrne, 30 So.3d at 1265 (¶ 4). Relying on the holding in Davis, this Court held that Byrne met the habitual-offender statutory requirements regardless of where or how Byrne had served his prior sentences. Id. The Court went on to explain that Byrne had previously been convicted of two felonies for which he was sentenced to terms of one year or more in a state and/or federal penal institution. Id.


author: ISHEE, J.,

text:
    Randall KIMBROUGH and Ruth Kimbrough, Appellants v. Delores KEENUM, Individually and The Will Ray Keenum and Dolores Ferreres Keenum Revocable Inter Vivos Trust, Appellees.
    No. 2009-CA-02039-COA.
    Court of Appeals of Mississippi.
    April 19, 2011.
    Rehearing Denied June 28, 2011.
    Certiorari Denied Sept. 1, 2011.
    Patrick R. Buchanan, Raymond L. Brown, Timothy Lee Murr, attorney for appellants.
    Brett K. Williams, Kevin M. Melchi, attorney for appellees.
    Before LEE, C.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Randall and Ruth Kimbrough were attacked on their property by two pit bulls that lived in a rental house across the street. The Kimbroughs filed a negligence suit in the Jackson County Circuit Court against the tenant and the landlords of the rental property. The property was owned by the Will Ray Keenum and Delores Fer-reres Keenum Revocable Inter Vivos Trust (the landlords). The landlords filed a motion for summary judgment, which the trial court granted. The trial court held that the law does not impose a duty on a landlord to protect others from dog attacks which occur on property outside of the landlord’s ownership and control.

¶2. The Kimbroughs appeal, arguing that the trial court erred by granting the landlords’ motion for summary judgment. The Kimbroughs also claim six more errors, all of which involve the issue of whether the landlords owed a duty of reasonable care to the Kimbroughs. We have combined the Kimbroughs’ arguments into one discussion. We find that the trial court did not err in refusing to expand a landlord’s duty of care to property outside of its ownership and control. Thus, we affirm the trial court’s judgment.

STATEMENT OF FACTS

¶3. On April 15, 2007, two pit bulls attacked the Kimbroughs on their property. The pit bulls resided in the rental property across the street from the Kim-broughs’ residence. Delores Keenum (Keenum), the widow of Will Ray Keenum, served as trustee of the Trust and in such capacity, managed the property. Kee-num’s daughter, Margarete Younts, leased the property from the Trust. The pit bulls were owned by Tommy Weaver, Younts’s boyfriend, who lived with Younts.

¶4. The Kimbroughs contend that the pit bulls had previously chased and attacked two young boys in the neighborhood while the children were riding their bikes. The boys escaped by climbing onto the roof of a van that was parked on the street. The facts are in dispute as to whether Keenum knew about the first dog attack. However, one of the neighbors stated in her deposition that: she had informed Keenum about the attack, and Keenum warned the neighbor to stay off of the property.

¶5. After the attack, the Kimbroughs sued Younts, the Trust, and Keenum for negligence, arguing that all of the defendants owed a duty to protect the Kim-broughs from the dangerous propensities of the pit bulls.

¶ 6. At trial, Keenum testified that the Trust owned the property where the pit bulls lived, but Younts rented the property. Keenum admitted that she had the right to ban pets from the properties she rented, but she did not prohibit Younts from keeping the pit bulls on the property. Neither party disputes that Weaver, Younts’s live-in boyfriend, owned the dogs.

¶ 7. Keenum filed a motion for summary judgment. The Trust also filed a joinder to Keenum’s motion. After a hearing, the trial court granted the motion, stating that the defendants owed no duty to the plaintiffs regarding the pit bulls because the attack occurred on the Kimbroughs’ property, which was outside of the defendants’ ownership and control. The case against Younts was stayed pending the outcome of this appeal.

¶8. The Kimbroughs now appeal the trial court’s decision, asking that the case be remanded back to the trial court for a trial on the merits. They argue that the trial eourt erred by granting summary judgment in favor of the defendants in ruling that the defendants did not owe a duty of reasonable care to the Kim-broughs.

STANDARD OF REVIEW

¶ 9. We review a circuit court’s grant of summary judgment de novo. Rainey v. Grand Casinos, Inc., 47 So.3d 1199, 1202 (¶ 8) (Miss.Ct.App.2010) (citing Wilner v. White, 929 So.2d 315, 318-19 (¶ 3) (Miss. 2006)). If no genuine issues of material fact exist, then the moving party is entitled to judgment as a matter of law. M.R.C.P. 56(c). We consider the evidence “in the light most favorable to the non-moving party.” Rainey, 47 So.3d at 1202 (¶ 8). “The non-moving party cannot rest on mere allegations or denials of the pleadings, but must set forth specific facts showing there is a genuine issue for trial. If any triable issues of fact exist, the circuit court’s grant of summary judgment will be reversed.” Id.

DISCUSSION

¶ 10. The Kimbroughs argue that the trial court erred by granting the defendants’ motion for summary judgment when it held that the defendants did not owe the Kimbroughs a duty of reasonable care. The Kimbroughs rely on Mongeon v. A & V Enterprises, Inc., 733 So.2d 170, 171 (¶ 5) (Miss.1997) (citing Poy v. Grayson, 273 So.2d 491, 494 (Miss.1973)), to assert that a landlord has sufficient control over the property he or she leases, and when' that landlord knows about the dangerous propensities of a vicious animal, the landlord has a duty to remove the dangerous animal. The Kimbroughs further argue that this Court should recognize the duty of a landlord to third persons for dog bites inflicted off of the landlord’s premises when the dogs are under the control of a tenant, and the landlord has actual knowledge of the dog’s dangerous propensities. We decline to do so.

¶ 11. The existence of a duty is “a question of law to be determined by the court.” Enter. Leasing Co. S. Cent., Inc. v. Bardin, 8 So.3d 866, 868 (¶ 7) (Miss.2009) (quoting Brown ex rel. Ford v. J.J. Ferguson Sand & Gravel Co., 858 So.2d 129, 131 (¶ 9) (Miss.2003)). The plaintiff must prove that a duty exists “to conform to a specific standard for the protection of others against the unreasonable risk of injury.” Id. In a motion for summary judgment, the non-movant must put forth evidence that the movant breached an established duty. Wagner v. Mattiace, 938 So.2d 879, 883 (¶ 11) (Miss.Ct.App.2006).

¶ 12. The Kimbroughs fail to provide authority for the proposition that a landlord can be held liable for injuries occurring on property neither owned nor controlled by the landlord. The majority view holds that landlords are not responsible for dog attacks that occur outside of the leased premises. See Stokes v. Lyddy, 75 Conn.App. 252, 815 A.2d 263 (2003); Tran v. Bancroft, 648 So.2d 314 (Fla.Dist.Ct.App.1995); Fernandez v. Marks, 3 Haw. App. 127, 642 P.2d 542 (1982); Feister v. Bosack, 198 Mich.App. 19, 497 N.W.2d 522 (1993); Shen v. Kornienko, 253 A.D.2d 396, 676 N.Y.S.2d 593 (1998); Shafer v. Beyers, 26 Wash.App. 442, 613 P.2d 554 (1980).

¶ 13. The Mississippi Supreme Court has held that a landlord has a duty to protect against attacks by dogs with known vicious propensities in areas owned by the landlord which are designated for the tenants’ common use. Mongeon, 733 So.2d at 171 (¶ 6). In Mongeon, the dog attack occurred in an area designated for the common use by the inhabitants of a trailer park, which was owned and operated by the defendant. Id.

¶ 14. The attacks in the present case occurred on land that was neither owned or controlled by the landlord. It is undisputed that the dog attacks occurred on the Kimbroughs’ property. It is also undisputed that the dogs were owned by Weaver, Younts’s boyfriend, who lived with Younts in the rental property. Weaver was not a part of the lease agreement.

¶ 15. The trial court correctly noted that Mississippi law, both common and statutory, has yet to extend liability for personal injuries caused by dangerous animals beyond its owner and imposes liability upon lessors only for injuries or damages arising on the leased premises. Id. As a matter of law, we find that the defendants did not owe a duty of reasonable care to the Kimbroughs. Thus, any questions of fact as to whether the defendants had knowledge of the dogs’ dangerous propensities are moot.

¶ 16. Alternatively, the Kimbroughs argue that the defendants assumed a duty to protect the Kimbroughs when Keenum admitted in her deposition that she had a duty to protect her neighbors from vicious dogs on her property. To support their argument, the Kimbroughs state that “[a] duty also exists where a party contracts to undertake or otherwise assumes a duty.” Doe ex rel. Doe v. Wright Sec. Servs., Inc., 950 So.2d 1076, 1080 (¶ 13) (Miss.Ct.App. 2007). As noted above, duty is a question of law to be decided by the court. Bardin, 8 So.3d at 868 (¶ 7). No evidence exists in the record that a duty was imposed upon the defendants by contract or that Kee-num voluntarily assumed a duty from the statements she made in her deposition. Thus, this issue is without merit.

CONCLUSION

¶ 17. Viewing the facts as presented by the Kimbroughs in the light most favorable to them, no issues of material fact are raised. The attacks did not occur on property owned and controlled by the landlords. Regardless of whether the landlords had notice at any particular time of the dogs’ dangerous propensities, no legal duty extends to landlords for injuries sustained on property outside of the landlords’ ownership and control. Therefore, we do not make a factual determination; instead, we conclude, as a matter of law, that the facts as presented, even if they were in dispute, were not material to the issue of whether a duty existed. Summary judgment, therefore, was proper.

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

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

      . The circuit court ordered a Rule 54(b) certification, pursuant to the Mississippi Rules of Civil Procedure, directing that a final judgment be entered as to the separate defendants, Delores Keenum and the Will Ray Kee-num and Delores Ferreres Keenum Revocable Inter Vivos Trust. Jurisdiction over this matter, therefore, is proper.