source: Caselaw Access Project

author: KITCHENS, Justice, PIERCE, JUSTICE,

license: Public Domain

text:
    Tyrone GOWDY v. STATE of Mississippi.
    No. 2009-KA-00890-SCT.
    Supreme Court of Mississippi.
    Dec. 16, 2010.
    Rehearing Denied March 31, 2011.

      Randall Harris, attorney for appellant.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
   KITCHENS, Justice,

for the Court:

¶ 1. Following a jury trial, Tyrone Gow-dy was convicted of felony driving under the influence of alcohol (DUI). Two months after his trial and conviction, but before his sentencing, the State amended the indictment to allege that Gowdy was an habitual offender as defined by Mississippi Code Section 99-19-83 (Rev.2007). The trial judge then adjudicated Gowdy an habitual offender and sentenced him to life imprisonment without the possibility of parole. Finding that the State was prohibited from amending the indictment after Gow-dy’s conviction, but finding that no reversible error occurred at trial, we affirm Gowdy’s conviction, vacate the enhanced portion of his sentence, and remand the case for resentencing.

Facts

¶2. In the early morning hours of March 30, 2008, Officer John Straight, a patrolman with the Meridian Police Department, witnessed a vehicle running a stop sign. Straight pursued the vehicle and attempted to initiate a traffic stop by activating his blue lights and siren. Eventually, the car stopped, whereupon the driver, Tyrone Gowdy, got out and began to run away. Straight caught up with Gowdy on foot and restrained him as he awaited assistance from other officers. The arresting officer testified that because Gowdy was unruly, slurring his speech, and smelled of alcohol, Straight requested assistance from a DUI enforcement officer.

¶ 3. Officer David Rosenbaum arrived shortly thereafter and found Gowdy as Straight had described him: belligerent, smelling of alcohol, and slurring his words. Rosenbaum testified that Gowdy refused to breathe into the portable testing device at the scene and was transported to the police station. Rosenbaum continued that, at the station, he offered Gowdy both a field sobriety test and a breath test, and Gowdy again refused.

¶ 4. At trial, Gowdy testified in his own defense. He admitted having run the stop sign, but denied that he had been drinking. According to Gowdy, Rosenbaum never offered him a breath test or a field sobriety test once they arrived at the police station.

¶ 5. Gowdy was indicted for felony driving under the influence of alcohol under Mississippi Code Section 63-11-30 (Rev. 2004), as this was his fourth DUI offense within the preceding five years. The jury found Gowdy guilty on February 4, 2009. On April 21, 2009, just before sentencing, the trial judge allowed the State to amend the indictment to reflect that Gowdy was an habitual offender as defined in Mississippi Code Section 99-18-83. The trial judge adjudicated Gowdy an habitual offender and sentenced him to life imprisonment without the possibility of parole.

Issues

¶ 6. Gowdy raises six points of error on appeal, arguing: (1) he received ineffective assistance of counsel; (2) the trial judge erred by allowing the State to ask the venire members about verdicts they had rendered in other criminal cases; (3) the trial judge committed plain error by failing to issue a limiting instruction regarding evidence of Gowdy’s prior convictions; (4) cumulative errors warrant reversal; (5) the trial court erred by allowing the State to amend the indictment, after conviction, to include habitual offender status; and (6) the sentence was disproportionate to the crime and amounted to cruel and unusual punishment.

Discussion

I. Gowdy’s ineffective assistance of counsel claims are dismissed without prejudice.

¶ 7. Gowdy argues on appeal that his trial counsel was ineffective for eleven reasons: (1) failing to object to evidence of other DUIs; (2) failing to ask for a limiting instruction regarding prior DUI offenses; (3) failing to object to evidence of other non-DUI crimes; (4) failing to object to the State’s amending the indictment to add habitual offender status; (5) failing to request a video recording of the traffic stop; (6) failing to offer a jury instruction on Gowdy’s theory of the case; (7) failing to object to alleged prosecutorial misconduct; (8) failing to offer a circumstantial evidence instruction; (9) failing to cross-examine a State’s witness about a prior statement; (10) failing to object to the State’s peremptory jury challenges; and (11) failing to include significant errors in his post-trial motion for a new trial or a judgment notwithstanding the verdict. The second, fourth, and tenth points of error are addressed below. As for the remainder, this Court has held:

Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings. This is because during direct appeals the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately. Wilcher v. State, 863 So.2d 776, 825 (Miss.2003). In such a case, the appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue through a petition for post-conviction relief. Read v. State, 430 So.2d 832, 837 (Miss.1983).
However, this Court may address an ineffectiveness claim on direct appeal if the presented issues are based on facts fully apparent from the record. M.R.A.P. 22; see also Havard v. State, 928 So.2d 771, 786 (Miss.2006).

Archer v. State, 986 So.2d 951, 955 (Miss.2008). In his brief, Gowdy makes cursory arguments on each point of error and often fails to cite to the record or to any relevant authority. We find that Gowdy’s ineffective assistance of counsel claims are best reserved for a petition for possible post-conviction relief. Id.

II. The trial judge did not commit plain error by allowing the State to ask the venire members about verdicts they had rendered in other criminal cases.

¶ 8. During voir dire examination, the prosecutor asked the venire members whether they previously had served as jurors in criminal cases. Those who responded affirmatively were asked the nature of the crime and the verdict, if any. During jury selection, the State exercised two of its peremptory strikes against veni-re members who had sat on juries that had returned not guilty verdicts, and one peremptory strike against a venire member who had sat on three juries that had returned two guilty verdicts and one not guilty verdict, respectively. The defendant exercised two peremptory strikes against venire members who had sat on juries that had returned guilty verdicts. Ultimately, the impaneled jury consisted of two jurors who previously had served on juries in criminal cases. In both cases, the jury had returned guilty verdicts. The other impaneled jurors had never served as jurors in criminal cases. The defendant did not object to either the State’s line of questioning or the State’s use of peremptory strikes.

¶ 9. On appeal, Gowdy argues that the trial judge committed plain error in allowing the State to ask the venire members whether they previously had served on juries in criminal cases, and if so, whether those juries had acquitted or convicted the defendants in those cases. Gowdy also argues that the prosecutor then was able to use peremptory strikes to ensure that no juror impaneled in his case previously had voted not guilty in another criminal case. He argues that this denied him a fair and impartial jury.

¶ 10. Because Gowdy made no objections at trial, he asks us to review this under the “plain error” doctrine. Under this doctrine, we will reverse if the error involved a fundamental and/or substantive right and resulted in a “manifest miscarriage of justice” or “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Brown v. State, 995 So.2d 698, 703 (Miss.2008) (citations omitted).

¶ 11. We find no error, plain or otherwise, in the trial court’s having allowed the State to question the venire members about prior jury service. We are not aware of any case which condemns or finds fault with this common practice, and Gow-dy does not provide one. Such questions often are posed by both sides in criminal and civil cases alike, and are patently legitimate as voir dire questions. Indeed, in the present case, Gowdy struck two venire members who previously had voted to convict criminal defendants. Although we cannot know the reasons for these strikes, it is not at all unlikely that Gowdy and/or his lawyer considered these persons’ history as jurors, about which Gowdy would not have known without the State’s questioning. Accordingly, we find this issue without merit.

III.The trial judge gave a limiting instruction.

¶ 12. Gowdy argues that the trial judge erred by failing to give a cautionary instruction regarding evidence of his prior DUI convictions and evidence that he had been cited for driving with a suspended driver’s license. However, the trial judge did give a limiting instruction; the jury was told by the court that it could consider Gowdy’s prior DUI convictions only as impeachment evidence and as evidence that the case being tried was his third DUI. Gowdy does not reveal to this Court how the trial judge should have further instructed the jury, and we find no reversible error in this regard.

IV. The cumulative error doctrine does not apply.

¶ 13. Gowdy also argues that cumulative errors warrant reversal, but “where there is no error in part, there can be no reversible error to the whole.” Harris v. State, 970 So.2d 151, 157 (Miss.2007) (citing Gibson v. State, 731 So.2d 1087, 1098 (Miss.1998)). Thus, this assignment of error is without merit.

V. The trial court erred by allowing the State to amend the indictment, after conviction, to include habitual offender status.

¶ 14. On the morning of trial, February 3, 2009, the parties had an on-the-record discussion regarding plea negotiations. The State expressed a willingness to recommend to the court a sentence of one year in custody with two years’ post-release supervision and a $2,000 fine if Gowdy would plead guilty. Although Gow-dy’s attorney said that he believed it was in his client’s best interest to accept such an offer, Gowdy rejected it and invoked his right to a jury trial.

¶ 15. The next day, February 4, 2009, immediately after Gowdy had been convicted, the State informed the court that it had “just received” information about Gowdy’s prior convictions in Iowa and would seek to amend the indictment to include his habitual offender status. The prosecutor further informed the court that he was “not certain whether there will be an amendment to 99-19-83 or whether it will be 99-19-81.” Nearly two months later, on March 30, 2009, the day for which Gowdy’s sentencing hearing was scheduled, the State filed its motion to amend the indictment to charge Gowdy as an habitual offender under Mississippi Code Section 99-19-83, which requires a mandatory life sentence. Gowdy’s sentencing hearing was then rescheduled to April 21, 2009. Just before the sentencing hearing, the trial judge overruled Gowdy’s- objection to the amendment, concluding that “there is no prejudice.”

¶ 16. Rule 7.09 of the Uniform Rules of Circuit and County Court Practice provides:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss.Code Ann. § 68-11-30). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

The rule does not speak to the timing of the amendment, only that the defendant must be “afforded a fair opportunity to present a defense” and “not [be] unfairly surprised.” URCCC 7.09. This means that the defendant must be afforded due process of law and be given fair notice of “the nature and cause of the accusation.” U.S. Const. amends. VI, XIV; Miss. Const. art. 3, §§ 14, 26.

¶ 17. We find but one case in which this Court has held that the State can amend an indictment to charge a defendant as an habitual offender after a guilty verdict has been rendered, Torrey v. State, 891 So.2d 188, 195 (Miss.2004). Yet, Torrey's holding conflicts with prior case law that has not been overruled. Akins v. State, 493 So.2d 1321, 1322 (Miss.1986).

¶ 18. In Akins, 493 So.2d at 1322, this Court held that an amendment to the indictment which changed the habitual offender charge from the “little” enhancement (Section 99-19-81) to the “big” enhancement (Section 99-19-83) was an impermissible amendment. In that case, the defendant originally was charged as an habitual offender under Mississippi Code Section 99-19-81, and thus faced a maximum penalty of thirty years if convicted of aggravated assault on a police officer. Id. After his conviction, but before sentencing, the State was allowed to amend the indictment to have the defendant sentenced to imprisonment for life under Mississippi Code Section 99-19-83. On appeal, this Court held that the amendment was improper, and this Court vacated the defendant’s enhanced sentence. Id.

¶ 19. It logically follows that if the State may not amend the indictment to charge the “big” enhancement after conviction when the original indictment charged only the “little” enhancement, then the State may not amend the indictment to add an enhanced penalty after conviction. Our Uniform Rules of Circuit and County Court Practice support this interpretation because, as discussed above, “[¡Indictments may also be amended to charge the defendant as an habitual offender,” but an “[a]mendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” URCCC 7.09 (emphasis added.) We find that, in line with Akins, an amendment to the indictment to allege habitual offender status after conviction is an unfair surprise.

¶ 20. Moreover, Rule 11.03(1) requires that an indictment “must allege with particularity the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous convictions, and the date of judgment,” and failure to comply with this rule will result in reversal of the enhanced sentence. Ormond v. State, 599 So.2d 951, 962-63 (Miss.1992) (vacating enhanced penalty where indictment failed to list the date of one of the prior charges). There is no incentive for the State to be diligent in obtaining a prospective indict-ee’s criminal record in advance of presenting a new charge to a grand jury and timely complying with Rule 11.03 if it may simply amend the indictment at any time before sentencing. Had that occurred in this case, Gowdy would have been in a better position to make an informed and rational decision when presented with a proposed plea bargain.

¶ 21. Finally, notice of the charge includes notice of the applicable ■ minimum and maximum penalties. Under Rule 8.04(A)(4)(b), before a defendant can plead guilty, the trial court has a duty to ensure that he “understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law.” The rule should not be different for defendants who choose to exercise their right to trial by jury.

¶ 22. Pursuant to Akins, 493 So.2d at 1322, and our uniform rules, we find that the State should not have been permitted to amend the indictment after Gowdy’s conviction. To the extent that Torrey, 891 So.2d at 195, holds otherwise, it is overruled. Thus, we vacate the enhanced penalty and remand the case for resentencing under Mississippi Code Section 63 — 11— 30(2)(c).

VI. The proportionality of Gowdy’s sentence is a moot issue.

¶ 23. Gowdy argues that a life sentence is disproportionate to the crime of driving under the influence of alcohol, and, thus, is prohibited by our state and federal constitutions as cruel and unusual punishment. U.S. Const, amend. VIII; Miss. Const, art. 3 § 28. Because we are vacating Gowdy’s sentence based on the untimely amendment to the indictment, this issue is moot.

Conclusion

¶ 24. We find no error at trial that would warrant reversal of Gowdy’s conviction. However, because the trial judge erred by allowing the State to amend the indictment after Gowdy had been convicted, we vacate the enhanced portion of his sentence and remand the case for resen-tencing under Mississippi Code Section 63 — 11—30(2)(c).

¶ 25. CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE, AFFIRMED. SENTENCE OF LIFE IMPRISONMENT, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, VACATED. THIS CASE IS REMANDED TO THE LAUD-ERDALE COUNTY CIRCUIT COURT FOR RESENTENCING.

WALLER, C.J., GRAVES, P.J., DICKINSON, LAMAR AND CHANDLER, JJ., CONCUR. PIERCE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY CARLSON, P.J., AND RANDOLPH, J.

PIERCE, JUSTICE,

concurring in part and dissenting in part:

¶ 26. While I agree that we should affirm Gowdy’s conviction, I disagree with the majority’s decision to remand the case for resentencing. Accordingly, I dissent.

I.Akins

¶ 27. The majority seeks to vacate the enhanced portion of Gowdy’s sentence and remand the case for resentencing under Akins But the majority fails to fully acknowledge three key points that distinguish Akins from the present facts: (1) the Akins Court applied a strict standard of review under which the sufficiency of indictments was analyzed prior to the enactment of the Uniform Rules of Circuit and County Court Practice when it vacated Akins’s enhanced sentence; (2) the record lacked proof that Akins had served one year or more on two sepai’ate, prior felonies as required by Mississippi Code Section 99-19-83; and (3) the Akins Court found the amendment to be substantive (under the more stringent standard), and did not vacate the enhanced sentence because of the timing of the amendment. In fact, the Akins Court never addressed the timing of the amendment. Thus, the majority’s reliance on Akins is misplaced.

¶28. Today, Rule 7.09 of the Uniform Rules of Circuit and County Court Practice explicitly allows indictments to be amended to charge a defendant as a habitual offender as long as “the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” As the majority correctly notes, the rule does not address the timing of such amendment. Under our current law, an indictment may be amended to reflect habitual-offender status, even after a defendant’s conviction. And I would note that the Court handed down Torrey subsequent to, and in line with, Rule 7.09. Thus, the timing of the amendment in this case was permissible.

II. Gowdy and the plea bargain

¶ 29. Prior to trial, the State offered Gowdy a plea deal. As the majority notes, the State would have recommended to the trial court a sentence of one year in custody and two years post-release supervision and a fine in exchange for Gowdy’s guilty plea. Gowdy chose to forgo this opportunity to help himself, and now argues for a second bite at the apple.

¶ 30. I would remind the majority that Gowdy has no constitutional right to a plea bargain. Thus, the notion that the post-conviction amendment somehow robbed Gowdy of his right to “make an informed and rational decision when presented with a proposed plea bargain” has no support from our caselaw or the Mississippi Constitution.

III. The amendment was one of form, and not substance.

¶ 31. Habitual-offender status, in and of itself, is not a crime, i.e., offense, in the State of Mississippi, but a means to reduce crime through deterrence and/or incapacitation by enhancing a defendant’s sentence. Thus, a post-conviction amendment to the indictment to “charge” a defendant as a habitual offender does not raise the same concerns as would an amendment to reflect a new, criminal offense or substantive element of the charged offense.

¶ 32. Moreover, a change in the indictment is permissible if “it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood, or materially alter a defense to the indictment as it originally stood.” And it is well-established that “prior offenses used to charge the defendant as a habitual offender are not substantive elements of the offense charged.” Gowdy admits this on appeal.

¶ 33. Because the added prior convictions were used only to enhance Gowdy’s sentence, and not as an underlying element of the charge of felony DUI, the amendment to the indictment did not prejudice Gowdy, nor did it impede Gowdy’s defense at trial. Thus, the amendment, unlike the one in Akins, was one of form, and therefore permissible.

IV. Gowdy was not unfairly surprised.

¶ 34. Gowdy received notice of the State’s intent to amend the indictment at the close of trial on February 4, 2009. The State filed its motion, which it sent to Gowdy, on March 30, 2009. Gowdy did not ask for a continuance, nor did he object to such amendment at either time. Gowdy did not oppose the motion until the sentencing hearing on April 21, 2009, at which point he did so orally. In fact, Gowdy had more than seventy days to prepare a defense to the State’s motion. And the record is clear that Gowdy was well aware of his prior felony convictions in Iowa. Thus, it cannot seriously be argued that Gowdy was unfairly surprised by the amendment.

¶ 35. Further, the record is clear that the State did not have the information at the time it offered the plea deal to Gowdy. And Gowdy provides no evidence to show otherwise. Had the State possessed such information, surely it would not have presented Gowdy with such a generous plea deal in the first place. Thus, any implication that the State withheld information or somehow acted with disregard lacks support from the record.

V. Rules 11.03 and 7.09 of the URCCC

¶ 36. The majority states that “Rule 11.03 requires that an indictment ‘must allege with particularity the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous convictions, and the date of judgment,’ and failure to comply with this rule will result in reversal of the enhanced sentence.” But I would point out that the charge of “habitual offender” is not an “offense” within the meaning of Rule 11.03. The charge of “habitual offender” strictly relates to sentencing. And nothing in our case law, nor the Uniform Rules of Circuit and County Court Practice, precludes an amendment to assert such charge later in the proceedings.

¶ 37. Further, the majority cites Ormond v. State for the proposition that failure to comply with Rule 11.03, i.e., charge a defendant with habitual offender at the outset, “will result in reversal of the enhanced sentence.” Once again, the majority fails to acknowledge that Ormond was decided prior to the enactment of Rule 7.09, which allows indictments to be amended to charge a defendant as a habitual offender. Thus, the majority’s reliance on Ormond is incorrect. Ormond has no application to the present facts.

¶ 38. Additionally, the majority claims that the ability to amend the indictment at any time prior to sentencing would decrease the State’s incentive timely to comply with Rule 11.03. But the State has plenty of incentive to seek a defendant’s criminal record in advance, because if the State obtains information concerning a defendant’s criminal record pre-indictment or post-indictment, but well in advance of trial, such criminal history will be beneficial to the State in the prosecution of the principal charge in the indictment, such as admissible evidence under Mississippi Rule of Evidence 404(b), or evidence for the purposes of impeachment on cross-examination of a testifying defendant.

¶ 39. With that being said, the State may, however, amend the indictment to reflect the “charge” of habitual offender at any point prior to sentencing, subject to Rule 7.09, because such amendment is one of form, and not substance, i.e., a new criminal charge or substantive element of the charged offense. To be clear, there is no inconsistency between Rule 11.03 and Rule 7.09. Rule 7.09 simply allows the State to comply with Rule 11.03.

Conclusion

¶ 40. In light of the foregoing reasons, I disagree with the majority’s decision to remand the case for resentencing. Accordingly, I dissent and would affirm both Gowdy’s conviction and sentence.

CARLSON, P.J., AND RANDOLPH, J., JOIN THIS OPINION.

      . The indictment initially alleged that Gowdy previously had been convicted of two DUIs, but, before trial, the State amended the indictment to add a third prior DUI conviction.

      . Mississippi Code Section 99-19-81 (Rev. 2007) requires that certain habitual offenders be given the maximum sentence for the crime charged upon conviction, while Section 99-19-83 requires the imposition of a sentence of life without parole.

      . The Court also noted, in passing, that the record lacked proof that the defendant had actually served one year or more on two separate felony convictions. Id.

      . Akins v. State, 493 So.2d 1321, 1322 (Miss.1986).

      . Unlike the record in Akins, the record in this case provides proof that Gowdy served one year or more on each of his separate felony convictions in Iowa. Thus, the record warranted the charge of habitual offender under Section 99-19-83. See Miss.Code Ann. § 99-19-83 (Rev.2007).

      . URCCC 7.09.

      . Torrey v. State, 891 So.2d 188, 195 (Miss.2004); URCCC 7.09.

      . See Weatherford v. Bnrsey, 429 U.S. 545, 561, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); Medina v. State, 688 So.2d 727, 731 (Miss.1996).

      . Nathan v. State, 552 So.2d 99, 107 (Miss.1989) (citing Ellis v. State, 469 So.2d 1256, 1258 (Miss.1986); Shelby v. State, 246 So.2d 543, 545 (Miss.1971)).

      . Adams v. State, 772 So.2d 1010, 1020-21 (Miss.2000); Swington v. State, 742 So.2d 1106, 1118 (Miss.1999).

      . This Court has held that, "[wjhere a defendant does not ask for a continuance when an indictment is amended he cannot later object that he was surprized [sic] and prejudiced in this defense.” Nathan v. State, 552 So.2d 99, 107 (Miss. 1989).

      . Ormond v. State, 599 So.2d 951, 962-963 (Miss.1992).

      . See Miss. R. Evid. 609(a). Graves, P. J., concurred in result only.


author: PIERCE, Justice, KITCHENS, Justice,

text:
    Jim DOE and Barbara Doe, individually, and as Natural Parents of A.D., a Minor v. JAMESON INN, INC., Kitchin Hospitality, LLC and Erica Covington.
    No. 2009-CA-00722-SCT.
    Supreme Court of Mississippi.
    Jan. 13, 2011.
    Rehearing Denied March 31, 2011.

      Wayne E. Ferrell, Jr., Janice T. Jackson, Brian K. Herrington, Jackson, attorneys for appellants.
    B. Stevens Hazard, Aaron Reese Edwards, Jackson, attorneys for appellees.
    Before CARLSON, P.J., LAMAR and PIERCE, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. This case comes before the Court on appeal from the Rankin County Circuit Court, Hon. William E. Chapman presiding. Jim and Barbara Doe, individually and as natural parents of Ann Doe, appeal the grant of summary judgment in favor of Jameson Inn, Inc., Kitchin Hospitality LLC, and Erica Covington (defendants). Because no genuine issue of material fact exists as to the status of Ann Doe at the time she entered upon the premises of Jameson Inn, we affirm the trial court’s grant of summary judgment.

FACTS AND PROCEEDINGS

¶2. On approximately March 1, 2003, Kelvin Washington rented a room at the Jameson Inn, located in Pearl, Mississippi. At some point, Washington turned over the keys to the room to several teenage boys so they could celebrate the birthday of one of them. The group eventually made its way to Tinseltown, a local movie theater located directly across the street from the Jameson Inn. On the same evening, Ann Doe and her friend were dropped off at Tinseltown. At the time in question, Ann was thirteen years old, and her friend was twelve years old.

¶ 3. According to Ann, her friend approached a man in the game room of the theater and asked him for a smoke. The man told the girls he did not have a cigarette, but that he had “something else.” The girls then left the theater and accompanied the man to the Jameson Inn. The teenage boys also joined the group and headed back with the girls to the Jameson Inn. Ann admitted that she and her friend had left the theater to smoke marijuana at the Jameson Inn.

¶ 4. The group entered the Jameson Inn through the side door, which could be opened only with a working key. Erica Covington, the front-desk clerk, did not see the group enter the hotel. While in the room, the group passed around a marijuana cigarette. But Ann stated she took only one puff and did not inhale. After smoking marijuana, Ann was raped by one of the young men in the bathroom of the hotel room. Ann’s friend also had sexual intercourse with more than one of the teenage boys.

¶ 5. Ann and her friend left the Jameson Inn and walked back to the movie theater. The girls were picked up by the grandfather of Ann’s friend. Ann did not report the incident immediately. The next day, the girls were caught stealing pregnancy tests from a nearby drugstore. The girls advised the police officer of what had taken place the night before at the Jameson Inn. Ann’s attacker pleaded guilty to statutory rape.

¶ 6. On December 22, 2003, Jim and Barbara Doe filed a complaint against Jameson Inn, Kitchin Hospitality LLC, and Erica Covington in the Hinds County Circuit Court. Venue was transferred to the Rankin County Circuit Court. On November 26, 2007, defendants filed their Motion for Summary Judgment. Because it was undisputed that Ann had been on the premises of the Jameson Inn to smoke marijuana, the trial court determined Ann Doe’s status to be that of a “licensee.” The trial court further found that none of the defendants had breached any duty to Ann, and granted summary judgment in favor of Jameson Inn, Inc., Kitchin Hospitality LLC, and Erica Covington.

¶ 7. The Does now appeal and raise five issues for this Court’s review. In the interest of brevity, the issues have been consolidated into the following three issues:

I. Whether the trial court erred in considering the Does’ claims as a single cause of action for premises liability.
II. Whether the trial court erred in granting summary judgment on the basis that Ann Doe was a licensee.
III. Whether the Court should abandon the common-law distinctions between invitees, licensees, and trespassers when determining a landowner’s duty, or, in the alternative, exempt minors from such distinctions.

DISCUSSION

¶ 8. On appeal, this Court reviews a trial court’s grant of summary judgment de novo. The motion for summary judgment shall be granted “if 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.”

I. Whether the trial court erred in considering the Does’ claims as a single cause of action for premises liability.

¶ 9. The Does contend that the instant case is not only one of premises liability, but also a case of simple negligence. They cite Keith v. Peterson and Pressioood v. Cook for the proposition that not all causes of action that arise on one’s property are governed by the law which encompasses premises liability. Both Pressioood and Keith relied on this Court’s holding in Hoffman v. Planters Gin Co., in which the Court carved out an exception to the general standard of care owed to a licensee.

¶ 10. The Hoffman exception has no place in determining whether a cause of action falls within the realm of premises liability versus that of simple negligence. Rather, the Hoffman exception is applicable only in premises liability cases where, by a finding of certain factors, the duty of care owed to a licensee should be elevated from “willful and wanton injury” to a “reasonable standard of care.” Thus, whether Ann’s cause of action falls under the general theory of negligence or a specific type of negligence warrants a review of the facts that gave rise to Ann’s claim.

¶ 11. The injury of Ann, i.e., the rape, took place in a private room on the premises of the Jameson Inn. And the Does allege that Ann’s injury resulted from the dangerous condition of the Jameson Inn. Since premises liability is a theory of negligence that establishes the duty owed to someone injured on a landowner’s premises as a result of “conditions or activities” on the land, we find the trial court properly treated the Does’ claim as one of pure premises liability. As such, we cannot hold the trial court in error on this point.

II. Whether the trial court erred in granting summary judgment on the basis that Ann Doe was a licensee.

¶ 12. Ann claims she was an invitee at the time she entered the premises of the Jameson Inn and was raped. But the trial court determined Ann’s status to be that of a licensee. In order for this Court to determine whether the trial court erred in granting summary judgment in favor of the defendants, we must first address whether the issue of Ann’s status was one for the trial court or the jury.

¶ 13. This Court has held that, where the facts of the case are not largely in dispute, the classification of a plaintiff becomes a question of law for the trial judge. Here, the only fact pertinent to the determination of Ann’s status is her reason for leaving Tinseltown and entering the Jameson Inn property. The dissent attempts to show that Ann’s reason for leaving Tinseltown is in dispute. But the record reveals that, while Ann’s attacker denied that he had smoked marijuana in the hotel room, he admitted that he could not remember whether anyone else had smoked marijuana. Ann, however, admitted that she had left the movie theater to smoke marijuana and, in fact, had taken one puff off a marijuana cigarette while in the hotel room. Since Ann’s attacker does not confirm or contest whether Ann left the movie theater to smoke marijuana, Ann’s reason for leaving Tinseltown remains undisputed. Therefore, the determination of Ann’s status was properly a question of law to be decided by the trial judge.

¶ 14. Next, we must address the Hoffman exception. As mentioned previously, under the Hoffman exception, this Court has held that “the ordinary and reasonable standard of care has application and ‘the premises owner is liable for injury proximately caused by his affirmative or active negligence in the operation or control of a business which subjects either a licensee or invitee to unusual danger, or increases the hazard to him, when his presence is known.’” This exception, however, applies only to cases involving the operation or control of a business, and where injury results from “active conduct [of the landowners] as distinguished from conditions of the premises, or passive negligence.”

¶ 15. Ann claims that she, her friend, and the group of boys entered the Jame-son Inn through the side entrance. But Jessica Donahue, a cleaning attendant at the Jameson Inn, claimed in her deposition that she saw “a group” enter and exit through the front door of the hotel. This disputed fact calls into question whether the Jameson Inn had knowledge of Ann’s presence on the night of the rape. But the Hoffman exception requires more than mere knowledge. Even if Jameson Inn knew of Ann’s presence at the hotel, the record lacks any evidence to suggest that the defendants engaged in any “active negligence” that somehow caused injury to Ann. Additionally, no evidence was presented of an “unusual danger” on the premises or an “increase in hazard” to Ann. Thus, the Hoffman exception does not apply.

¶ 16. Since the Hoffman exception is inapplicable to the present facts, we must determine Ann’s status under the guidance of the common-law distinctions of trespasser, licensee, and invitee. “A licensee is one who enters upon the property of another for his [or her] own convenience, pleasure or benefit, pursuant to the license or implied permission of the owner.” An invitee is a person who “goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual benefit or advantage.” “[A] trespasser is one who enters upon another’s premises without license, invitation or other right.”

¶ 17. According to Ann, she entered the premises of the Jameson Inn to perform the illegal activity of smoking marijuana. Thus, Ann’s status on the night in question could not be that of invitee, as the element of mutual benefit is lacking. Jameson Inn received no benefit by virtue of Ann’s presence on the premises. The defendants owed no higher duty to Ann other than to refrain from willfully or wantonly injuring her. To constitute willful and wanton injury, something more than mere inadvertence or lack of attention is required. Because the record lacks any evidence to suggest that the defendants intended willfully or wantonly to injure Ann the night she was raped at the Jame-son Inn, we cannot find that the defendants violated any duty to Ann.

¶ 18. Additionally, the Does’ argument appears to allege that the defendants were “passively negligent” rather than “actively negligent,” since they allege that the defendants “failed to take any action at all to prevent the minor girls from going to the hotel room with the older boys.” Again, passive negligence is defined as “the failure to do something that should have been done.” But even assuming, arguendo, that the defendants were liable for any “passive negligence,” the duty owed to Ann would be to refrain from willfully or wantonly injuring her. And we have stated previously that the record lacks any evidence that the defendants intended willfully or wantonly to injure Ann.

¶ 19. The dissent opines that Ann could have been found by a trier of fact to have been the guest of a hotel guest, making her a invitee of the Jameson Inn, and, therefore, entitled to receive a higher duty of care. It cites a case from the Florida Supreme Court to support this proposition. But the case is easily distinguishable from the present facts, and adds no instructional value to this Court’s analysis.

¶ 20. In Steinberg v. Irwin Operating Co., the Florida Supreme Court held that the injured party “enjoyed the status of an implied invitee when she entered the hotel lobby,” because she was a friend of a registered hotel guest. But Ann would not qualify as a “guest of a registered hotel guest,” because the room in which she visited was not registered to her attacker. Rather, it was rented by and registered to Kelvin Washington. Thus, Kelvin Washington was the only registered hotel guest. If anything, Ann was the guest of a guest of a registered hotel guest. And even with this status, we find that Ann was, at most, a licensee at the time she entered the Jameson Inn. Thus, the trial court did not err in granting summary judgment in favor' of the defendants.

III. Whether the Court should abandon the common-law distinctions between invitees, licensees, and trespassers when determining a landowner’s duty.

¶ 21. On appeal, the Does request that this Court abandon the common-law distinctions of trespasser, licensee, and invitee, and opt for a reasonable-care standard. Alternatively, the Does argue that, if the Court should retain the common-law distinctions, it should exempt minors from such classifications.

¶22. As recently as 2003, this Court has declined to abandon the common-law distinctions at issue today. The Court thoroughly has addressed this very argument, and has noted that, over time, courts have “balanced the interests of persons injured by conditions of land against the interests of possessors of land to enjoy and employ their land for the purposes they wish.” And to abandon “the careful work of generations for an amorphous ‘reasonable care under the circumstances’ standard seems ... improvident.” Further, the Court has held that “the system of invitee, licensee, and trespasser, evolved to delineate very fine distinctions as to when a duty was owed to an entrant on land,” and that these distinctions protect a landowner from the “unfettered discretion of the juries.” Because we find the foregoing reasons persuasive, and we agree that the need to promote stability and predictability in the law outweighs the justifications for abandoning the common-law distinctions, we decline to abandon the trespasser, licensee, and invitee distinctions.

¶ 23. Lastly, we will address the Does’ alternative argument of whether a minor should be exempt from the common-law classifications of trespasser, licensee, and invitee. In Mississippi, the question of a minor’s capacity to perceive danger has arisen in the context of contributory negligence and the doctrine of attractive nuisance. Contributory negligence is the “act or omission amounting to want of ordinary care on part of the complaining party which, concurring with the defendant’s negligence, is the proximate cause of injury.” Within this doctrine, there is a presumption that a minor between the ages of seven and fourteen does not possess sufficient discretion to make him or her guilty of contributory negligence. The doctrine of attractive nuisance is “the rule that a person who owns property on which there is a dangerous thing or condition that will foreseeably lure children to trespass has a duty to protect those children from the danger.”

¶ 24. This Court has held that the attractive-nuisance doctrine does not apply to “obvious, natural dangers,” and that an “occupant may assume that a child’s guardians will have warned the child about readily apparent dangers.” And within the realm of contributory negligence, the presumption that a minor cannot exercise judgment with regard to a dangerous condition on the land may be rebutted by showing the minor was capable of exercising judgment and discretion, i.e., exceptional capacity. Likewise, the doctrine of premises liability does not exempt a minor from the common-law classifications, where it can be shown the minor was capable of recognizing an obvious and open danger.

¶25. Here, the Does would like this Court to consider the notion that Ann was not capable of understanding the consequences of entering a private hotel room with strange men she did not know and without an adult. Yet the facts uncontro-vertedly show that Ann understood the potential danger of going to the hotel room with strangers. In fact, Ann admitted in her deposition that she was aware of the potential danger, but went to the hotel anyway. Since Ann admittedly recognized the potential consequences of her actions, and the defendants owed only a duty to refrain from willful and wanton injury to Ann, the Does’ argument on this point must fail.

CONCLUSION

¶ 26. Based on the foregoing reasons, the trial court’s grant of summary judgment is affirmed.

¶ 27. AFFIRMED.

WALLER, C.J., CARLSON, P.J., RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J. DICKINSON, J., NOT PARTICIPATING.

KITCHENS, Justice,

dissenting:

¶ 28. The majority employs the common law distinctions of trespasser, licensee, and invitee and determines, incorrectly, that A.D. was a licensee, rather than an invitee, of Jameson Inn when she was raped. Maj. Op. at ¶¶ 16-17. That assessment is premised on the majority’s mistaken assertion that there is undisputed fact that A.D. “enter[ed] upon the property of [the Jameson Inn] for her own convenience, pleasure or benefit....” Maj. Op. at ¶ 16.

¶ 29. Ordinarily, the determination of whether a person is an invitee, a licensee, or a trespasser is a question for the jury’s decision; however, where the facts are not in dispute, the classification becomes a question of law for the trial judge. Leffler v. Sharp, 891 So.2d 152, 156 (Miss.2004) (citing Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097, 1100 (Miss.1986)). Because contradictory deposition testimony was before the trial judge about the relevant facts, A.D.’s status is a jury question. Therefore, the trial court erred in granting summary judgment for the defendants.

¶ 30. The majority inaccurately asserts that Ann Doe entered the premises of the Jameson Inn to perform the illegal activity of smoking marihuana, and that the trial court correctly adjudicated A.D. to be a licensee. Maj. Op. at ¶ 13. In support of that assertion, the majority relies on the portion of A.D.’s deposition at which she was questioned about the contents of a statement that she had made to police. Id. However, the majority neglects to acknowledge that A.D. had made more than one statement to the police, and that she admitted having been dishonest in at least one of those statements. When questioned about her untruthfulness in the police statement, Doe responded that she was dishonest because she was scared.

¶ 31. The record includes contradictory deposition testimony with regard to the purpose of A.D.’s having been inside the Jameson Inn on March 1, 2003. The child fíi’st testified that she had not wanted to go to the hotel and agreed to do so only because she did not want her friend to go there alone. A.D. also testified that she had not known whether she would smoke marihuana with her friend and the men once they had entered the hotel room. Later in her deposition, in response to a leading question of dubious clarity, A.D. tacitly acknowledged that she had gone to the hotel room to smoke marihuana. She also said that she had taken one puff of a marihuana cigarillo. AD.’s assailant, Rodriguez Smith, testified in his deposition that the group did not go to the hotel room to smoke marihuana and that no one smoked marihuana in the room on the night in question. Smith later testified that he could not remember whether anyone else had smoked marihuana that night, but he was certain that he had not. This brief review of the pertinent testimony illustrates that material facts of this case were genuinely disputed, so much so that the grant of summary judgment was inappropriate.

¶ 32. Patrons of a hotel are business invitees of the hotel. Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197, 1199 (Miss.2008) (citing Thomas v. The Columbia Group, LLC, 969 So.2d 849, 852 (Miss.2007)). However, this Court has never spoken specifically on the duty, if any, owed by a hotel to a guest of a hotel guest. Florida case law is instructive on the duty owed by a hotel owner to the guest of a hotel guest.

¶ 33. In Steinberg v. Irwin Operating Co., 90 So.2d 460, 461 (Fla.1956), the Florida Supreme Court held:

There is no doubt that a registered guest of a hotel is a business invitee and is entitled to receive the degree of care applicable to invitees. We are of the view that one entering a hotel to communicate with a registered guest is entitled to receive and enjoy the same degree of care.... A hotel is not to be considered an insurer of the safety of every person who decides to roam around its lobby or other public rooms. On the other hand, by the very nature of the business, the operator of the hotel is bound to anticipate that a registered guest is apt to have business and social callers. The invitation to such callers arises by operation of law and out of the relationship between the hotel and its registered guests.

Steinberg, 90 So.2d at 461. In that case, a friend of a hotel guest came to a hotel to deliver a message to the guest; however, the guest was not in his room. Id. Unable to find the hotel guest, the friend decided to explore various rooms adjacent to the lobby. Id. While thus engaged, the friend fell and suffered injuries as she walked from the “TV Room” to the “Movie Room.” Id. The Florida court found that the friend of the hotel guest “enjoyed the status of an implied invitee when she entered the hotel lobby.” Id. However, when the hotel guest was unavailable for the friend to visit, the friend became a licensee of the hotel when she began to explore various rooms adjacent to the lobby, because she had exceeded the implied invitation. Id.

¶ 34. In this case, Kelvin Washington rented a room for Smith and several other young men. After paying for the room, Washington relinquished the room keys to Smith. Smith and his cohorts invited A.D. and her friend to accompany them to the rented room. A.D. and her female friend were invited guests of Smith, a hotel guest. A.D. entered the hotel with hotel guests, accompanied the guests to their room, and later left the hotel. Accordingly, A.D. did not exceed the implied invitation of Jame-son Inn. The presence on the hotel’s premises of persons in A.D.’s circumstances was foreseeable — indeed, to be expected — by the hotel. Consistent with the persuasive reasoning of Steinberg, Doe could have been found by a trier of fact to have been the guest of a hotel guest, making her an invitee of Jameson Inn at the time of the crime perpetrated upon her.

¶ 35. Under controlling Mississippi case law, Doe’s status as invitee versus licensee is an issue of fact for a jury’s determination. Sharp, 891 So.2d at 156. Accordingly, I would reverse the trial court’s grant of summary judgment and remand the case for trial.

CHANDLER, J., JOINS THIS OPINION.

      . On appeal, the names of the appellants have been changed to protect the minor's identity.

      . Additionally, two other employees of Jame-son Inn claim they saw two white girls together with several African-American boys leave the hotel. But neither employee could provide further details of the group other than race. Specifically, one of those employees claimed she saw "a group” get off of the elevator in the front lobby and exit through the front door. The other employee claimed she saw "a group” talking and laughing outside the door to the side entrance of the hotel. Ann claims the group she was with entered through the side door of the Jameson Inn, and that she and her friend exited the Jame-son Inn alone.

      . As a licensee, the defendants owed Ann Doe a "duty to refrain from willfully or wantonly injuring” her. Little v. Bell, 719 So.2d 757, 760 (Miss.1998).

      . Duckworth v. Warren, 10 So.3d 433, 436 (Miss.2009) (citing One South, Inc. v. Hollowell, 963 So.2d 1156, 1160 (Miss.2007)).

      . Miss. R. Civ. P. 56(c).

      . Keith v. Peterson, 922 So.2d 4, 10 (Miss.Ct.App.2005).

      . Presswood v. Cook, 658 So.2d 859, 861-62 (Miss. 1995).

      . See Hoffman v. Planters Gin Co., 358 So.2d 1008, 1013 (1978).

      . See Little v. Bell, 719 So.2d 757, 761 (Miss.1998); Hughes v. Star Homes, Inc., 379 So.2d 301, 304 (Miss.1980); Hoffman v. Planters Gin Co., 358 So.2d 1008, 1011-12 (Miss.1978).

      . Black’s Law Dictionary 961 (7th ed. 2000).

      . Leffler v. Sharp, 891 So.2d 152, 156 (Miss.2004) (citing Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097, 1100 (Miss.1986); Little v. Bell, 719 So.2d 757, 761 (Miss.1998); Graves v. Massey, 227 Miss. 848, 87 So.2d 270, 271 (1956)).

      . The following exchange concerns Ann’s written statement to the police:
      Q. "Then we asked if he had a cig to smoke and he was like, no, but I have some weed.” Is that true?
      A. Yes, sir.
      Q. "And [Rachel Roe] was like really, well, come on let's go smoke it and I thought for a second and like, okay, whatever.” Is that true?
      A. Yes, sir.
      And again in the following colloquy:
      Q. Did you call your parents or anyone to tell them that this man had invited you over to a hotel room to smoke marijuana?
      A. No, sir.
      Q. Why not?
      A. I didn’t want anybody to know.
      Q. Why not? Didn’t want them to know you were smoking marijuana or didn’t want them to know you were going to a room with a guy that you didn’t know?
      A. I didn't want them to know I was going [with Rachel Roe] to a room with people I didn't know.
      Q. To smoke marijuana?
      A. Yes, sir.

      Q. So how many puffs did you take off this marijuana cigarillo?
      A. Just one.

      . Little, 719 So.2d at 761 (quoting Hoffman, 358 So.2d at 1013) (emphasis added).

      . Id. at 761.

      . Again, Jessica Donahue claimed she saw "a group” get off of the elevator in the front lobby and exit through the front door. The other employee claims she saw "a group” talking and laughing outside the door to the side entrance of the hotel. Ann claims the group she was with entered through the side door of the Jameson Inn, and that she and her friend exited the Jameson Inn alone.

      . See Hoffman, 358 So.2d at 1013.

      . Lucas v. Miss. Housing Authority # 8, 441 So.2d 101, 103 (Miss.1983).

      . Hughes v. Star Homes, Inc., 379 So.2d 301, 303 (Miss. 1980).

      . Hoffman, 358 So.2d at 1011.

      . Little, 719 So.2d at 761.

      . Id.

      . Id.

      . Id.

      . Titus v. Williams, 844 So.2d 459, 466 (Miss.2003).

      . Steinberg v. Irwin Operating Co., 90 So.2d 460, 461 (Fla. 1956).

      . See Titus, 844 So.2d 459 (Miss.2003).

      . Little, 719 So.2d at 763.

      . Id. at 763.

      . Id. at 764.

      . Black's Law Dictionaiy 716 (6th ed. 1991).

      . Glorioso v. YMCA, 556 So.2d 293, 295 (Miss.1989).

      . Black's Law Dictionary (8th ed. 2004).

      . Skelton v. Twin County Rural Electric Ass’n, 611 So.2d 931, 937 (Miss.1992) (citing McGill v. City of Laurel, 252 Miss. 740, 173 So.2d 892, 898 (1965)). .

      . Skelton, 611 So.2d at 937.

      . See id. at 938.

      . Doe was a thirteen-year-old seventh grader at the time she was questioned. The majority concedes that the child was, in fact, raped. Maj. Op. at ¶ 11.


author: CARLSON, Presiding Justice,

text:
    Jennifer WEATHERSPOON v. STATE of Mississippi.
    No. 2010-KA-00221-SCT.
    Supreme Court of Mississippi.
    Jan. 20, 2011.
    Rehearing Denied March 31, 2011.

      Office of Indigent Appeals by Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. After a trial in the Circuit Court for the Second Judicial District of Bolivar County, the jury convicted Jennifer Weatherspoon of aggravated assault and murder. Weatherspoon was sentenced to serve consecutive sentences of twenty years for the aggravated-assault conviction and life imprisonment for the murder conviction. In today’s appeal, Weatherspoon complains only as to the murder conviction, arguing that the trial court abused its discretion when it failed to grant her a new trial. Addressing the propriety of the verdict of guilty on the murder count, we find the verdict was not against the overwhelming weight of the evidence. Thus, we affirm the final judgment of conviction and sentence entered by the Circuit Court for the Second Judicial District of Bolivar County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. This case involves a fatal shooting at the Hurricane Club in Cleveland, where a brawl ensued between two adult males in the club’s dimly lit parking lot, followed by gunfire and club-goers fleeing into the Delta night. The Cleveland Police Department began an investigation, and, throughout the next year, witnesses made statements and admissions concerning that night. This appeal concerns the shooting death of Den’ick McKinney (“Rell” or “Rail”). Weather-spoon does not attack her conviction for the aggravated assault of Seagram Bacardi Foster.

¶ 3. The uncontradicted facts are as follows. On September 23, 2005, Jennifer Weatherspoon and Damien Johnson, girlfriend and boyfriend, were at the Hurricane Club. Weatherspoon began to flirt with both Carlos White (“Primos”) and McKinney. Johnson entered the club, cursed, and tightly wrapped his hand around Weatherspoon’s neck. Hoping to avoid a potential fight, McKinney left the club, walked through the parking lot, and stopped near the street in the front of the club. Johnson and White also exited but quickly began to argue. White told Johnson that Weatherspoon had flirted with White, causing Johnson to punch White in the face.

¶4. Viewing the altercation from his nearby car, Foster, White’s brother, ran to assist White. Before Foster could throw a punch, Weatherspoon shot him in the back. Other shots followed. McKinney proceeded to stop the fight. After the shots, McKinney immediately ran from the fight and collapsed in an adjacent field.

¶ 5. White testified that during the melee, Weatherspoon had pulled a gun from her purse and started shooting. He heard shots coming from Weatherspoon’s weapon. He also testified that Weatherspoon was the sole shooter that night. On cross-examination, defense counsel impeached White based on an earlier statement in which White had told the police that he had not seen Weatherspoon with a gun. White further testified that he had heard two shots while in the front of the club and then four or five shots — fired rapidly— when he was on the side of the club.

¶ 6. Seagram Bacardi Foster testified that Johnson hit White, prompting Foster to run to the fight. Running to the altercation, Foster passed Weatherspoon, standing near the fight, who reportedly stated, “You running that way, you need to watch me.” As Foster approached Johnson and his brother, Foster was shot in the back. Foster testified at trial that he thought Weatherspoon was the shooter based on her position in relation to the shots fired. After hearing the shots, Fos- ■ ter ran with White to the rear of the club, where White informed Foster that Foster had been shot. Specifically, White informed, “Yeah, she shot you.” Before the altercation, Foster had noticed McKinney across the street. Foster did not see Weatherspoon shoot McKinney. Foster testified that after he had been shot, he had run behind the club and had heard four or five more shots. Foster had then gone to his truck, grabbed his Tech-9, and before collapsing, had asked who had shot him. In his interview with police, he denied having a firearm.

¶ 7. Jessie Robinson, the mother of White and Foster, testified that in November 2005, Weatherspoon had told Robinson that “she didn’t shoot Rell [McKinney] but she shot Bacardi [Foster].”

¶ 8. Romayel Patton testified that he and Reginald Brown, his cousin, had been sitting in Brown’s car in the club’s parking lot when White and Johnson began to fight. Patton had seen Weatherspoon fire several shots toward the altercation. Weatherspoon was two or three feet from the front of Brown’s car, and Patton could see fire coming from Weatherspoon’s weapon. According to Patton, all five or six shots had come very quickly. After the shooting had started, Patton had watched McKinney run beside Patton’s vehicle and away from the fight. Patton described McKinney’s posture as “[i]n a leaned over position.” Patton had seen no one else with a gun.

¶ 9. Reginald Brown testified that he had also seen Weatherspoon with a gun in her hand and with fire coming from the barrel. Brown had heard Weatherspoon say, “Why y’all paying attention to him? You need to be paying attention to me.” Brown had heard two shots and then five more. Brown had seen McKinney run by the car after the shooting had begun. Brown had seen no one else with a gun.

¶ 10. Rodya Nicks rode with McKinney to the club. She testified that when the argument started, she and McKinney had been standing near her car. According to Nicks, McKinney had decided to stop the fight and had run toward it. Nicks had witnessed Weatherspoon pull a gun from her purse and begin shooting. After the shooting had begun, McKinney had run from the fight and back through the parking lot, yelling “she shot me,” and had collapsed in a lawn adjacent to Nicks’s car. Nicks had heard at least three shots. She had seen no other shooters.

¶ 11. George Serio, an investigator with the Cleveland Police Department, visited the Hurricane Club, where his investigation revealed that Weatherspoon was the potential shooter. Serio then went to the hospital and conducted a gun-residue test on Foster, which was negative. The next morning, Serio arrested and charged Weatherspoon. At this time, Weather-spoon gave a voluntary statement in which she stated that, during the altercation, Foster had pulled a gun and fired it. She said she had shot her gun while fleeing to safety.

¶ 12. Importantly, according to Serio’s testimony, Weatherspoon voluntarily described the gun as a revolver:

[Prosecution]: Could you tell us what her description of the gun was?
[Serio]: She stated she didn’t know what kind of gun it was. So I said okay, was it a revolver or an automatic and she still kind of didn’t know. So I pulled my weapon and said, “Okay, this is an automatic. It has a clip and when you fire it, the bullets pop out the top. Was it like that?” She said, “No.” She described it as being — having rounds cylinder, which is just the standard revolver that you open up and you put the bullets in one at a time, which indicates that it was a revolver and not an automatic weapon.

The police never recovered the murder weapon, though Weatherspoon stated to the police that she had dropped it in the club’s parking lot.

¶ 13. During Serio’s investigation, Serio received information from Lady Branch, who was at the club during the shooting. Branch informed Serio that Henry Taylor also had been shooting his weapon at the club on the night of McKinney’s death. Several months after the shooting, the police found Taylor and tested his .22 pistol, eventually ruling out this .22 as the murder weapon. Branch did not testify at trial.

¶ 14. Serio testified that he recalled a .380 weapon had been found at the crime scene and admitted that a 9 mm shell casing could have been found. He added that in “the parking lot of a club ... you can find just about anything.”

¶ 15. Stig Peterson, an investigator with the Cleveland Police Department, also visited the crime scene and found a .380 casing. Another officer found more shell casings, but Peterson did not know their caliber. A month after the shooting, Weatherspoon and Johnson approached Peterson at the police station and told him that Weatherspoon had found a box of .25 caliber shells at her house and wanted to provide them to the police. Weatherspoon informed Peterson that this caliber shell had been loaded into the gun she had used at the club. She had bought this .25 caliber pistol from a man from Memphis. Weatherspoon earlier had told Serio that she had shot a .22, describing the pistol as a revolver, but sought to prove that she had shot a .25 pistol. Other testimony at trial indicated that there are likely no .25 revolvers — as opposed to .25 automatics— in existence.

¶ 16. David Whitehead, a trace-evidence technician with the Mississippi Crime Laboratory, testified that the gun-residue kit performed on Foster was negative, consistent with Foster’s story that he had not fired a gun, contrary to Weather-spoon’s statements to police and her self-defense theory.

¶ 17. Byron Mclntire, a forensic scientist specializing in firearm and toolmark identification with the Mississippi Crime Laboratory, testified that the projectile removed from McKinney’s body was consistent with a .22 caliber bullet. Mclntire established that Taylor’s gun had not fired this bullet.

¶ 18. Dr. Steven T. Hayne, a pathologist, conducted the post-mortem examination on McKinney. He removed the projectile, which was consistent with a .22 caliber bullet, from McKinney’s body. He also observed two gunshot wounds on McKinney. He could not determine whether a single gun inflicted these two wounds, but testified that only one wound was fatal. This fatal wound was “located over the mid-chest wall slightly to the right of the mid-line....” According to Dr. Hayne, the cause of death was the gunshot wound to the chest area, and the manner of death was homicide.

DISCUSSION

¶ 19. Weatherspoon raises one argument on appeal: Whether the trial court abused its discretion when it failed to grant her motion for a new trial because the verdict of guilty as to murder was against the overwhelming weight of the evidence. Notably, Weatherspoon does not contest the legal sufficiency of the evidence.

¶ 20. In Bush v. State, this Court succinctly stated the standards by which this Court determines whether to grant a new trial in this context: “reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 886, 844 (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). The motion for a new trial is addressed to the discretion of the trial court, and such motion should be considered with caution. “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000)). This Court should weigh the evidence in the light most favorable to the verdict. Id. (citing Herring, 691 So.2d at 957).

¶ 21. Weatherspoon argues that her murder conviction is based on “extremely weak and tenuous evidence” in light of the totality of the circumstances. In other words, she contends that the overwhelming weight of the evidence fails to show that Weatherspoon deliberately murdered McKinney as defined in Mississippi Code Section 97-3-19 (Rev.2006).

¶ 22. In support of this theory, Weath-erspoon first argues that it is very possible that another person shot a gun at the Hurricane Club on the night in question. She specifically contends that anyone at the club could have had a gun that night and could have shot McKinney. Weather-spoon told Serio that Foster had pulled a 9 mm weapon. Moreover, the police received a report that Henry Taylor had fired his weapon that evening in the direction of the fight between White and Johnson. And Weatherspoon opined that, while forensic tests later determined that Taylor’s .22 pistol was not the murder weapon, Taylor may have had another weapon when firing rounds at the club.

¶ 23. Weatherspoon also adds that, after she began to fire shots, the witnesses ducked and did not see her shoot McKinney. Therefore, “none of the witnesses [was] in a position to see when McKinney was actually shot.”

¶ 24. Finally, assessing all of this evidence, Weatherspoon points out that, because the investigating officers found “several caliber shell casings outside of the club,” “the murder weapon was never recovered,” and “there were no eyewitnesses to the shooting,” enough reasonable doubt existed that no reasonable jury should have convicted Weatherspoon.

¶ 25. On the other hand, the State argues that “the evidence, viewed in its entirety, was clearly sufficient for a reasonable, fair-minded, hypothetical juror to find beyond a reasonable doubt that Weatherspoon” shot McKinney. Moreover, the State argues that the overwhelming weight of the evidence supports the verdict.

¶ 26. In support of these contentions, the State argues that Weatherspoon’s three exclamations during the incident, McKinney’s exclamation that implicated Weatherspoon, and eyewitness testimony support the verdict. First, several witnesses testified that Weatherspoon had made remarks indicative of her intent to involve herself in the fight. Foster testified that he had heard Weatherspoon state, ‘You running that way, you need to watch me!” Patton heard Weatherspoon exclaim, “If ya’U gone mess with my man, you’re going to mess with me!” Brown heard Weatherspoon state, “Why ya’ll paying attention to him? You need to be paying attention to me!” Nicks heard McKinney state, “She shot me!” Second, White, Patton, Brown, and Nicks testified that Weatherspoon was the sole shooter.

¶ 27. While this Court agrees that there is a possibility that someone other than Weatherspoon may have shot McKinney, we “cannot view the evidence in the light most favorable to the verdict and say that an unconscionable injustice resulted from this jury’s ... verdict.” Bush, 895 So.2d at 844-45. Simply stated, ample evidence exists to show that Weatherspoon deliberately murdered McKinney. See Russell v. State, 497 So.2d 75 (Miss.1986) (citations omitted) (malice may be inferred or implied from the unlawful and deliberate use of a deadly weapon).

¶ 28. The State correctly asserts that the testimony identifying Weatherspoon as the shooter and her statements support the verdict. But further evidence underscores the jury’s verdict in this case, that is, the forensic evidence and the questionable nature of the evidence regarding other potential shooters.

1. Forensic Evidence

¶29. Weatherspoon points out that a .380 casing and 9 mm casing were found in the club’s parking lot, that no bullet was recovered from Foster’s body, and that investigators failed to uncover a murder weapon.

¶ 30. Forensic evidence proved that a .22 caliber bullet killed McKinney, and the record provides that investigators found no .22 casings in the club’s parking lot. Weatherspoon informed investigators that she had been shooting a .22 caliber weapon and had dropped the gun in the club’s parking lot. Yet, officers recovered no .22 pistol or any .22 shell casings in the parking lot. Weatherspoon described the murder weapon as being a revolver to Serio but later attempted to change her story, indicating that she had shot a .25 caliber weapon. The record indicates, however, that there are likely no .25 revolvers in existence.

¶ 31. This evidence, viewed in its entirety, tends to show that Weatherspoon shot McKinney with a .22 revolver and explains why no .22 caliber shell casings were found. Her theory that she shot a .25 caliber weapon, after all, does not comport with the absence of .25 shell casings at the club. The record reflects there are likely no .25 revolvers, and an automatic weapon would have ejected shell casings.

¶ 32. Moreover, the fact that officers found a .380 casing and a 9 mm casing in the parking lot of a night club is of minimal probative value without more. As Peterson testified, “you can find just about anything” in a club’s parking lot. More specifically, without some evidence tying these shell casings to some other shooter and ultimately to McKinney’s death, this Court cannot say that the .380 and 9 mm shell casings are so probative as to contravene the other evidence supporting the verdict.

2. Other Potential Shooters

¶ 33. Lady Branch did not testify at trial, but the record indicates that Branch had contacted Serio about another potential shooter. This Court finds that Serio’s testimony before the jury concerning another potential shooter, Henry Taylor, was not compelling enough to render the jury’s verdict unconscionable. In fact, on cross-examination by defense counsel concerning the result of his investigation, Ser-io testified that “[w]e have no indication that anyone else was shooting other than [Weatherspoon]. And, again, we resolved that matter concerning that gun.” Likewise Serio testified that Henry Taylor’s .22 pistol, recovered months after the shooting, was determined not to be the murder weapon.

¶ 34. Furthermore, in Branch’s interview with Serio, Branch stated that others had fired shots that night:

[George Serio]: All right tell me what happened down there[.][A]bout 2:00 you were there [and] saw [the] fight take place?
[Lady Branch]: Yes when I drove up ... I went across the street and I seen Derrick and I called him across the street and he was standing up there talking to me.
[George Serio]: Derrick McKinney.
[Lady Branch]: Derrick McKinney ... we was just passing words ... and across the street I seen Primo and Jennifer and her boyfriend ... arguing ... Rail broke off went running said I’m fixing to go break the fight up and I said don’t go across the street. When he ran across the street I seen Jennifer with the gun in her hand and she was just shooting and when she started shooting he grabbed his chest so I ran down beside the car and Henry Miller he was shooting across from the car and I was trying to tell him to stop shooting and so when I got up I seen Henry with a gun he was shootfing] and I seen Main Taylor with a gun I didn’t see him shooting. ...
[George Serio]: So Jennifer pulls her gun out and- starts shooting then everybody runs.
[Lady Branch]: And people started shooting back.
[George Serio]: All right.
[Lady Branch]: Cause I heard I know Henry shooting it was 3 different guns going off.
[George Serio]: Was Main Taylor shooting.
[Lady Branch]: I don’t I seen him with a gun but I don’t know was he shooting when it was over with I don’t know was he shooting or not.
[George Serio]: So if Henry Miller was shooting he would have been shooting to help.
[Lady Branch]: Uh-uh uh-huh he was shooting this way cause the car was right here they was on this side and he shooting over the car.
[George Serio]: So everybody’s thinking Jennifer shot Derrick and Bacardi but it could have been Henry Miller.
[Lady Branch]: I know she shot Derrick he ran right like right into it across the street.

(Emphasis added). Lady Branch’s statement to Serio reveals that there may have been more than one shooter; however, she also informed Serio that “she [Weather-spoon] shot Derrick” because he ran directly into the line of fire. In any event, Serio’s investigation ruled out other shooters.

¶ 85. Finally, although Weatherspoon stated to police that Foster had pulled a gun and shot it during the fight, the gun-residue test performed on Foster was negative. At trial, Foster admitted that after he was wounded, he had drawn his 9 mm weapon and then collapsed. Henry Taylor’s .22 pistol was not tested until months after the shooting occurred. This .22 pistol could have been a different pistol. Officers did find other shell casings at the club, and the murder weapon was not recovered. Also, no one specifically saw Weatherspoon shoot McKinney. However, several eyewitness testified that Weather-spoon had shot her weapon toward the fight. Other eyewitnesses testified that McKinney had run toward the fight, and after Weatherspoon had fired her weapon, McKinney had run away from the fight and, before his death, stated “She shot me.” Several witnesses at trial also testified that Weatherspoon had made comments before the shooting indicating her intent to harm those fighting her boyfriend. And several witnesses testified that she was the sole shooter and that they had seen no one else with a gun.

¶ 36. Moreover, Dr. Hayne removed a .22 caliber bullet from McKinney, and Weatherspoon told investigators that she had shot a .22 pistol. Also, the record is not inconsistent with the State’s theory that Weatherspoon shot a revolver. She described the weapon as being a revolver. Officers found no .22 or .25 shell casings. The testimony at trial estimated the shots to be anywhere from three to seven in number; much of the testimony revealed that there were no more than six shots, which is consistent with the bullet capacity of a revolver. Finally, witnesses testified that the shots sounded as if they had come from the same direction.

¶37. In sum, we are duty-bound to follow our well-established standard of review when a jury verdict is assailed via a motion for a new trial, alleging that the verdict is contrary to the weight of the evidence. See URCCC 10.05(2). This Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d at 844 (citing Herring, 691 So.2d at 957). Stated differently, we are unable to conclude from the record before us that we are sanctioning an unconscionable injustice by allowing the jury’s verdict to stand finding Jennifer Weatherspoon guilty of the murder of Derrick McKinney.

CONCLUSION

¶ 38. For the reasons stated, the final judgment of conviction entered by the Circuit Court for the Second Judicial District of Bolivar County, consistent with the jury verdict finding Jennifer Weatherspoon guilty of the murder of Derrick McKinney, and the subsequently imposed sentence of life imprisonment in the custody of the Mississippi Department of Corrections, is affirmed. For the sake of clarity, since Jennifer Weatherspoon, on appeal, did not attack her aggravated-assault conviction and twenty-year sentence, this conviction and sentence are likewise affirmed.

¶ 39. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THE SENTENCE IMPOSED IN COUNT I SHALL BE SERVED CONSECUTIVELY TO THE SENTENCE IMPOSED IN COUNT II.

WALLER, C.J., GRAVES, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.

      . In her notice of appeal, Weatherspoon states that she is appealing "from her conviction for murder and aggravated assault and sentence of life and twenty years,” but her brief is devoted solely to a discussion of her murder conviction. In fact, in her brief, Weatherspoon states that she had voluntarily spoken to law enforcement officials, admitting that she was involved in the shooting, and that "[s]he even told Foster’s mom, Jessie Robinson, that she was the person that shot Foster.” Additionally, the State, in its brief, asserted that Weatherspoon's “conviction of aggravated assault is not contested,” and Weatherspoon filed no reply brief disputing the State’s assertion. Finally, we note that there exists a longstanding principle of law that if an appellant makes an allegation of error without supporting such allegation with argument or authority, "this Court need not consider the issue.” Jordan v. State, 995 So.2d 94, 104 (Miss.2008) (citing Pierre v. State, 607 So.2d 43, 48 (Miss.1992)). Since Weatherspoon makes no argument and cites no authority concerning her aggravated-assault conviction, we will focus our discussion on Weatherspoon’s murder conviction.

      . White's written statement to police was marked as an exhibit for identification purposes only and was not introduced into evidence. Several witnesses were impeached by their previous statements to the police. This is of little consequence on appeal. See Byrd v. State, 522 So.2d 756, 760 (Miss.1988) ("The jury is the sole judge of the weight and credibility of the evidence.”).

      . Branch's statement was not received into evidence.

      . (1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases: (a) When done with deliberate design to effect the death of the person killed, or of any human being....
      Miss.Code Ann. § 97-3-19 (Rev.2006).

      . Because Weatherspoon's statement of the issues and analysis in her brief focus on the argument that the verdict was against the overwhelming weight of the evidence, this Court does not address the State's rebuttal argument regarding the sufficiency of the evidence.

      . The bullet is still lodged in Foster's body.

      . The defense did not challenge the alleged nonexistence of .25 revolvers.

      . Both Serio and Peterson testified that a 9 mm casing might have been found, but neither recalled specifically. Officer Jones collected this evidence at the crime scene, but he did not testify regarding the shell casings he found. In any event, while a 9 mm casing might have been found, and while Foster had a 9 mm weapon in his car, the bullet that fatally wounded McKinney was fired from a .22 caliber weapon.

      . There is some confusion in the record regarding Henry Miller and Henry Taylor. Lady Branch told police that Miller had shot a weapon and Taylor did not. However, investigators checked only Taylor's gun. Serio testified that someone had identified Taylor as the shooter. Neither Miller nor Taylor testified at trial.

      . Defense counsel did not move to have Branch's statement entered into evidence. This statement was marked Defense Exhibit D-3 for identification purposes. However, solely for the sake of completely understanding this case, we have included pertinent excerpts.


author: PIERCE, Justice,

text:
    Timothy GUNN v. STATE of Mississippi.
    No. 2009-KA-01901-SCT.
    Supreme Court of Mississippi.
    Jan. 27, 2011.
    Rehearing Denied March 31, 2011.

      Office of Indigent Appeals by Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by La Donna C. Holland, Scott Stuart, Jackson, attorneys for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. Timothy Gunn was convicted of grand larceny under Mississippi Code Section 97-17-41 in Bolivar County Circuit Court. The trial court sentenced Gunn to ten years as a habitual offender under Mississippi Code Section 99-19-81. Gunn raises three issues on appeal: (1) whether the evidence was sufficient to support the verdict; (2) whether the trial court erred in denying Gunn’s motion for a mistrial; and (3) whether the photo lineup identification was overly suggestive. Because none of these issues have merit, we affirm Gunn’s conviction and sentence.

FACTS AND PROCEEDINGS

¶ 2. According to trial testimony, Fred King was working at a dry cleaner’s in Cleveland, Mississippi, directly across the street from the Moose Lodge, on March 7, 2009. King saw a black male walking around a truck parked across the street at the lodge. King saw the man lift up the top of the tool box and remove a black and gold duffle bag. While watching the activity, King called his boss, James Farmer, to the front of the store to observe the man’s behavior. Farmer also witnessed the man take a black and yellow duffle bag from the tool box. Both King and Farmer noticed that the man was wearing a red shirt with khaki pants. After an unsuccessful attempt to reach someone at the Moose Lodge, Farmer called the police.

¶ 3. Officer Brian Goza responded to the call from dispatcher Helen Brewer. Brewer advised Goza that a black male wearing a red shirt and khaki pants had removed a black and gold duffle bag from a truck parked at the Moose Lodge. Goza spotted a man wearing a red shirt and khaki pants, carrying a yellow and black duffle bag on his shoulder. Once he approached the man, Goza recognized him as Timothy Gunn.

¶ 4. Goza questioned Steven Simpson, the owner of the truck, about the duffle bag and its contents. Simpson provided receipts totaling more than $ 1,000 for the tools contained in the duffle bag. Goza arrested Gunn and charged him with grand larceny. Two days after the arrest, Investigator Stig Peterson presented King with a photo line up containing six pictures. King identified Gunn immediately as the man he had seen take the duffle bag from the truck.

¶ 5. At trial, King identified Gunn and testified that he had seen him take a black and gold duffle bag from the tool box of the truck. Farmer testified that he had seen a black male, wearing a red shirt and khaki pants, take a black and yellow duffle bag from a truck parked at the Moose Lodge. And Goza testified that he had apprehended a man wearing a red shirt and khaki pants, and carrying a duffle bag, whom had he recognized from previous encounters as Timothy Gunn. Goza’s dashboard camera had captured the stop, and clearly showed a black male, wearing a red shirt and khaki pants, carrying a duffle bag on his shoulder. This video was played for the jury.

¶ 6. Gunn’s son, Travis Neal, testified that, on the day in question, he had witnessed the police stop his father. Neal stated that his father was wearing a red shirt and khaki pants, but he denied that his father had been carrying a duffle bag on his shoulder. Neal claimed that the officers had retrieved the duffle bag from a nearby field and placed it in the trunk of the police car.

¶ 7. Gunn testified at trial and denied taking the tool bag from Simpson’s truck. He admitted that he was arrested on the day in question for grand larceny, but maintained that he “wasn’t caught with nothing in [his] hands.” Gunn further claimed that the police had framed him, and that he was not the same man portrayed in the police video. Ultimately, Gunn was convicted of grand larceny, and now appeals.

DISCUSSION

I. Whether the evidence was sufficient to support the verdict.

¶ 8. The reviewing court must determine whether, when viewing the evidence in the light most favorable to the State, any rational juror could have found that the State had proved each element of the crime charged beyond a reasonable doubt. Mississippi Code Section 97-17-41 defines grand larceny:

Every person who shall be convicted of taking and carrying away, feloniously, the personal property of another, of the value of Five Hundred Dollars ($500.00) or more, shall be guilty of grand larceny, and shall be imprisoned in the Penitentiary for a term not exceeding ten (10) years.

¶ 9. Though Gunn asserts he was not the man who stole the duffel bag, overwhelming evidence proves the contrary. King, an eyewitness, testified that he had seen Gunn remove the bag of tools from the victim’s trunk and carry them away. And while Farmer did not see Gunn’s face, his description of the incident matched King’s, and both men agreed the perpetrator had worn a red shirt and khaki pants. Two days after the incident, King picked Gunn out of a photo line up with no hesitation. Also, two officers, including Goza, testified that Gunn had been carrying the black and gold bag of tools when approached on the street. Video footage from Goza’s car clearly depicts Gunn carrying the black and gold bag on his shoulder.

¶ 10. While Gunn alleges he was not the man who carried away the duffel bag, most of his argument focuses on the proper valuation of the tools. The State is required to prove the stolen property was valued at $500 or more at the time of the theft in a grand-larceny case. This Court has held that the proper measure of the value of property is the market value of the property at the time and place of the larceny, rather than the original purchase price. However, even considering the market price, the proper valuation is still greater than $500.

¶ 11. The tools taken include a DeWalt tool kit, various drills and saws, extra batteries, some tool bits, a set of specialty wirecutters, screwdrivers, and other miscellaneous items. Simpson paid $1,236.90 as the combined price for his tools six months before they were stolen. Although purchase price of the stolen tools is not direct proof of the market value at the time of the theft, it is circumstantial evidence of value. Simpson testified that replacing the tools would cost him “approximately the same price.”

¶ 12. While Gunn claims that his conviction must be reversed because the price of the stolen tools was based on purchase price, a jury is allowed reasonably to infer the value of specific items based on purchase price and additional testimony. Therefore, though Gunn correctly states the measure of value for the tools, we find that the evidence presented was sufficient for a reasonable juror to find that the value of the stolen tools was more than $500. This issue is without merit.

II. Whether the trial court erred in denying Gunn’s motion for a mistrial.

¶ 13. Gunn argues that the following exchange between the prosecutor and Peterson violated his right against self-incrimination.

Q. (Prosecutor) Investigator Peterson, when you advised the defendant of his rights, did he give you any statement?
A. (Peterson) No, ma’am, he did not.

Gunn’s counsel made an objection and moved for a mistrial, which the trial court denied.

¶ 14. “Whether to grant a motion for mistrial is within the sound discretion of the trial court. The standard of review for denial of a motion for mistrial is abuse of discretion.” Further, the test for “whether reversal is required as a result of a prosecutor’s improper comment at trial ‘is whether or not the natural and probable effect of the statement is to create an unjust prejudice against the accused so as to result in a decision influenced by prejudice.’ ”

¶ 15. It is improper and, ordinarily, reversible error to comment on the accused’s post-Miranda silence. And when the trial judge determines that the error does not reach the level of prejudice warranting a mistrial, the judge should admonish the jury to disregard the impropriety to cure its prejudicial effect. Here, the exchange between the prosecutor and Peterson concerning Gunn’s statement or lack thereof was improper. But we find that reversal is not warranted.

¶ 16. This Court has held that errors may be deemed harmless where “the same result would have been reached had they not existed.” Under some circumstances, reversal is not required, even though the prosecutor asked questions about the defendant’s post-arrest silence. Such a circumstance is when the evidence weighs overwhelmingly against the defendant. Here, multiple eyewitnesses and video documentation implicated Gunn. Moreover, the comment was not used to impeach Gunn’s trial testimony, nor did the State revisit this fact in its closing argument. Thus, the error was harmless.

III. Whether the photo lineup was overly suggestive.

¶ 17. Because he was the only individual in a six-person photographic lineup shown wearing a coat, Gunn claims that the lineup was impermissibly suggestive. But Gunn failed to raise this issue properly at trial, and is procedurally barred from arguing it for the first time on appeal. Notwithstanding the procedural bar, this issue lacks merit.

¶ 18. The mere fact that Gunn was the only person in the lineup wearing a coat does not make this “effectually a lineup of one and not six pictures,” as Gunn argues. The theft allegedly was committed by someone wearing a red shirt and khaki pants; there was no testimony the perpetrator was wearing a coat. Further, the pictures in the lineup were chosen by a police department computer program. This program operates by choosing people in the system, at random, with similar height, weight, and age as the suspect. These facts, taken together, indicate that the photo lineup was not impermissibly suggestive.

CONCLUSION

¶ 19. Although the exchange between the prosecutor and Peterson was improper, the error was harmless due to the overwhelming evidence of Gunn’s guilt. The eyewitness testimony of Gunn’s possession of the tools and Simpson’s testimony regarding their value were sufficient evidence to support the verdict. Finally, the photographic lineup was not unduly suggestive. For these reasons, we affirm.

¶ 20. CONVICTION OF GRAND LARCENY AND SENTENCE OF TEN

(10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AS A HABITUAL OFFENDER, WITHOUT PAROLE OR PROBATION, AFFIRMED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR.

      . Bush v. State, 895 So.2d 836, 843 (Miss.2005).

      . Miss.Code Ann. § 97-17-41 (Rev.2006).

      . Ellis v. State, 469 So.2d 1256, 1259 (Miss.1985) (citing Barry v. State, 406 So.2d 45, 47 (Miss.1981)).

      . Williams v. State, 994 So.2d 821, 825-826 (Miss.Ct.App.2008).

      . Smith v. State, 881 So.2d 908, 909-910 (Miss.Ct.App.2004).

      . Caston v. State, 823 So.2d 473, 492 (Miss.2002) (citing Pulphus v. State, 782 So.2d 1220, 1222 (Miss.2001)).

      . Hurt v. State, 34 So.3d 1191, 1195-96 (Miss.Ct.App.2009) (citing Harvey v. State, 666 So.2d 798, 801 (Miss.1995)).

      . Quick v. State, 569 So.2d 1197, 1199 (Miss.1990); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Gossett v. State, 660 So.2d 1285, 1291 (Miss.1995) (citing Perkins v. State, 600 So.2d 938, 941 (Miss.1992)).

      . Tate v. State, 912 So.2d 919, 926 (Miss.2005).

      . Emery v. State, 869 So.2d 405, 409 (Miss.2004).

      . Riddley v. State, 777 So.2d 31, 35-36 (Miss.2000).

      . As stated in Puckett v. State, the government cannot use an accused’s exercise of a constitutional right as a weapon to convict him.

      . Gunn's attorney received a copy of the photo lineup at least two weeks prior to trial. But he failed to file a pretrial motion to suppress the identification evidence. Further, he did not make an appropriate motion orally on the day of trial.

      . Walker v. State, 913 So.2d 198, 217 (Miss.2005).