author: ROBERTS, J., BARNES, J.,

text:
    Rachel Ryals SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01123-COA.
    Court of Appeals of Mississippi.
    March 20, 2012.
    Rehearing Denied Aug. 28, 2012.

      Edmund J. Phillips Jr., Newton, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorneys for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. Rachel Ryals Smith appeals her conviction for felony driving under the influence (DUI). Smith claims the indictment against her was legally insufficient; the prosecution failed to prove Smith had been convicted of DUI three times within five years; the circuit court erroneously admitted Smith’s statements to law enforcement; and the circuit court erroneously allowed the prosecution to reopen its casein-chief to enter an essential element of proof. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 20, 2009, shortly after midnight, Mississippi Highway Patrol Officer Willie Triplett responded to a dispatch call for a one-vehicle accident on Highway 19 in Neshoba County. Upon arriving at the scene, he found a vehicle that had apparently left the highway, overturned, and ended up back on the highway facing the wrong direction. Medical and fire department personnel were with Smith, who denied she was injured. In speaking with Smith about the accident, Trooper Triplett detected alcohol on her breath and noticed her speech was slurred. When asked if she had been drinking, Smith responded that she had consumed a few beers earlier in the evening. Trooper Triplett administered a portable breath test that detected the presence of alcohol. A subsequent Intoxilyzer 8000 test indicated that Smith’s breath-alcohol content was 0.11 percent. Smith was arrested for driving under the influence.

¶3. A grand jury indicted Smith for felony driving under the influence. At trial, the prosecution called Trooper Triplett as its only witness. After the prosecution had rested, Smith moved for a directed verdict because the prosecution had not presented evidence of Smith’s two pri- or DUI convictions. The prosecution successfully moved to reopen its case-in-chief. Over Smith’s objection, the prosecution presented evidence of Smith’s two prior DUI convictions.

¶ 4. The jury found Smith guilty of felony DUI. The circuit court sentenced Smith to two years in the custody of the Mississippi Department of Corrections and fined her $2,000. Aggrieved, Smith appeals.

ANALYSIS

I. SUFFICIENCY OF THE INDICTMENT

¶ 5. Smith claims the indictment is defective in that it charges her with having .08% “weight volume of alcohol in her blood.” Noting that the Mississippi statute regarding DUI references “alcohol concentration” rather than “weight volume,” Smith argues that she could not understand what the indictment charged. Because the legal sufficiency of an indictment is a question of law, we review this issue de novo. Tran v. State, 962 So.2d 1237, 1240 (¶ 12) (Miss.2007).

¶ 6. Rule 7.06. of the Mississippi Uniform Rules of Circuit and County Court Practice provides:

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them.

“It is a well-established principle of law that in order for an indictment to be sufficient, it must contain the essential elements of the crime charged.” Gray v. State, 728 So.2d 36, 69 (¶ 167) (Miss.1998) (citation omitted). An indictment is legally sufficient if the accused is given fair notice of the charge he faces from a reading of the indictment as a whole. Smallwood v. State, 584 So.2d 733, 738 (Miss.1991).

¶ 7. The indictment against Smith charged her with operating a motor vehicle while “having eight one-hundredths percent (.08%) or more by weight volume of alcohol in her blood.” (Emphasis added). Mississippi Code Annotated section 63-11-30(l)(c) (Supp.2011) states that it is “unlawful for any person to drive or otherwise operate a vehicle within this state” if that person “has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age to purchase alcoholic beverages under state law.” (Emphasis added).

¶ 8. In Robinson v. State, 75 So.3d 1148, 1151 (¶ 9) (Miss.Ct.App.2011), Robert Robinson claimed the indictment against him was legally insufficient because the indictment charged him with possession of me-thylenedioxymethamphetamine (MDMA) but it did not track the language of the Mississippi statute that prohibits possession of MDMA by the name “3, 4-methy-lenedioxymethamphetamine.” This Court found no merit to Robinson’s claim on appeal because the indictment specifically referenced the statute Robinson was accused of violating. Id. at 1152 (¶ 13). Similarly, the indictment against Smith stated that she was charged with violating section 63-11-30(1)(c). Section 63-11-30(l)(c) includes the phrase “alcohol content” rather than “weight volume.” Accordingly, we find that the indictment against Smith included sufficient information to place her on notice regarding the charge she faced. Therefore, we find no merit to this issue.

II. SUFFICIENCY OF THE EVIDENCE

¶ 9. In this issue, Smith claims the circuit court erred when it sentenced her as a felon. According to Smith, there was insufficient evidence to convict her of felony DUI because the prosecution did not demonstrate that she had been convicted of two prior DUI offenses within five years of her most recent DUI conviction. Smith notes that her most recent DUI conviction occurred on July 8, 2010, and her two prior convictions occurred on April 27, 2004, and August 31, 2006. Smith reasons that the circuit court should have sentenced her for a misdemeanor DUI offense.

¶ 10. As the Mississippi Supreme Court has stated:

in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for [a] directed verdict or for [a JNOV], the critical inquiry is whether the evidence shows beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.

Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (internal citations and quotations omitted). However, this Court will determine there was sufficient evidence to sustain the jury’s verdict if the evidence was “of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id. (internal citations and quotations omitted).

¶ 11. Smith is mistaken regarding the essential elements of felony DUI. Section 63-ll-30(2)(c) states that “for any third or subsequent conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five (5) years, such person shall be guilty of a felony.” (Emphasis added). In Smith v. State, 950 So.2d 1056, 1058 (¶ 10) (Miss.Ct.App.2007), this Court stated that section 63-11-30(2)(c) “requires that the offenses must have been committed within a period of five years of each other, not the convictions.” “Evidence of both the date the offense was committed, normally the date of the arrest, and that the arrest/offense resulted in a conviction are necessary to sustain a conviction under [s]ection 63-ll-30(2)(c).” Id.

¶ 12. Regarding the evidence of Smith’s prior DUI offenses, the prosecution submitted two documents into the evidence. Exhibit S-5 was a certified copy of Smith’s judgment of DUI conviction, which was described as her second DUI offense, in the Kosciusko municipal court. Smith committed that offense on April 5, 2004. When Smith pled guilty, the municipal court judge warned her that a third DUI offense in the future would result in being charged with a felony.

¶ 13. Exhibit S-6 was a certified copy of a judgment of conviction for Smith’s previous felony DUI offense. Smith pled guilty before the Attala County Circuit Court on August 31, 2006. The judgment of Smith’s previous felony DUI conviction bore the cause number 2006-0066CR. That reflects that the indictment was returned in 2006, before Smith pled guilty to that offense on August 31, 2006. Furthermore, when the prosecutor submitted Exhibit S-6 in the jury’s presence, he stated, ‘Tour Honor, we would also move to introduce a certified copy from the Attala County Circuit Court for an offense dating May 17, 2006, and a [jjudgment entered August 31, 2006 for the crime of felony DUI.” Smith’s trial attorney did not object to the prosecutor’s statement regarding the date of the offense.

¶ 14. In fact, Smith’s trial attorney never challenged the adequacy of Exhibits S-5 and S-6. Smith has a different attorney on appeal. Similar to her trial attorney, Smith’s appellate attorney does not claim that the prosecution failed to demonstrate that she committed her most recent DUI offense within five years of her two previous DUI offenses. Mississippi Rule of Appellate Procedure 28(a)(3) prohibits this Court’s review of an issue not raised on appeal. However, Rule 28(a)(3) provides an exception that “the court may, at its option, notice a plain error not identified or distinctly specified.”

¶ 15. The dissent would find the circuit court committed plain error. We may address issues as plain error only “when the error of the trial court has impacted upon a fundamental right of the defendant.” Sanders v. State, 678 So.2d 663, 670 (Miss.1996). “The plain error doctrine has been construed to include anything that ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Porter v. State, 749 So.2d 250, 261 (¶ 36) (Miss.Ct.App.1999) (quoting United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

¶ 16. This Court has addressed as plain error instances regarding the sufficiency of the evidence when the State has failed to prove an element of a crime. Carr v. State, 770 So.2d 1025, 1030 (¶ 16) (Miss.Ct.App.2000); see also Jones v. State, 724 So.2d 427, 430 (¶ 13) (Miss.Ct.App.1998) (On sufficiency of evidence, though procedural waiver of issue existed, plain error caused court to consider issue because of difficulty in concluding a criminal conviction could be affirmed if there was no evidence to prove one or more elements of the offense.) However, more often than not, such issues have been disposed under the rationale that “[i]t is fundamental that the trial court will not be reversed for failing to grant relief that was not requested.” Taylor v. State, 754 So.2d 598, 606 (¶ 21) (Miss.Ct.App.2000) (emphasis added) (citing Chase v. State, 645 So.2d 829, 846 (Miss.1994); Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988)). “A trial judge will not be found in error on a matter not presented to him for decision.” Fulgham v. State, 770 So.2d 1021, 1023 (¶ 4) (Miss.Ct.App.2000). We have also declined to consider an issue on appeal when a criminal appellant failed to brief a challenge to the sufficiency of the evidence. Odom v. State, 769 So.2d 189, 198-99 (¶ 34) (Miss.Ct.App.2000).

¶ 17. We decline to find plain error in this case. Without objection from Smith’s trial attorney, the prosecutor successfully submitted jury instruction S-l. That jury instruction states:

The Court instructs the Jury that if you believe from the evidence in this case beyond a reasonable doubt that ... Smith ... did willfully, unlawfully!,] and feloniously operate a motor vehicle while under the influence of intoxicating liquor .., at a time when [she] ... previously had been twice convicted and sentenced within five (5). years under the same statute, then it is your duty to find [Smith] guilty as charged.

Smith’s trial attorney did not object to the misstatement of law in jury instruction S-1. Not only that, Smith’s own jury instruction on the essential elements of the case, which was designated as jury instruction D-7, instructed the jury as follows:

Before you can return a verdict of guilty, you must find from the evidence in this case beyond a reasonable doubt that ... [Smith] was operating a motor vehicle while under the influence of intoxicating liquor ... having previously been twice convicted and sentenced for this same offense within five (5) years.

¶ 18. Nothing in the record indicates that the jury’s verdict “seriously affects the fairness, integrity[,] or public reputation of judicial proceedings.” Porter v. State, 749 So.2d 250, 261 (¶ 36) (Miss.Ct.App.1999) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Nor is there an error “so fundamental that ... it would be a substantial miscarriage of justice to permit” Smith’s conviction to stand. Carr v. State, 770 So.2d 1025, 1030 (¶ 16) (Miss.Ct.App.2000). Under the precise circumstances of this case — specifically the matters discussed above — it is inappropriate to analyze this issue as plain error — thereby raising the issue on Smith’s behalf sua sponte when her trial attorney never raised it in the circuit court and her appellate attorney never raised it here. There is no merit to this issue.

III. ADMISSIBILITY OF SMITH’S PRE-MIRANDA STATEMENTS

¶ 19. Trooper Triplett testified that he had not given Smith a Miranda warning before he asked her whether she had been drinking. When Trooper Triplett began to testify what Smith had said in response to his question, Smith’s trial attorney objected. The circuit court overruled the objection and Trooper Triplett went on to testify that Smith had said “she had had a few beers earlier.” Additionally, Trooper Triplett testified that Smith told him that she had been driving. Trooper Triplett explained that he asked Smith those questions because he was investigating the accident and “it was [his] job as part of investigating the accident to find out who is injured and who is the driver.”

¶ 20. Smith claims the circuit court erred when it allowed Trooper Triplett to testify regarding her responses to his initial questions. According to Smith, her responses were inadmissible because Trooper Triplett had not informed her of her rights pursuant to the United States Supreme Court’s familiar decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The standard of review regarding the admission of evidence in a criminal case is abuse of discretion. Shaw v. State, 938 So.2d 853, 857 (¶ 9) (Miss.Ct.App.2005) (citation omitted). However, the circuit court must exercise its discretion within the boundaries of the Mississippi Rules of Evidence. Id.

¶ 21. The Supreme Court stated that its decision in Miranda was “not intended to hamper the traditional function of police officers in investigating crime.... General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding.” Miranda, 384 U.S. at 477, 86 S.Ct. 1602. “In a non-custodial setting where interrogation is investigatory in nature (general on-the-scene-investigation), Miranda warnings are not required in order that a defendant’s statements be admissible.” Hopkins v. State, 799 So.2d 874, 878 (¶ 7) (Miss.2001). Trooper Triplett was required to give Smith a Miranda warning if Smith was in custody. Id. “The test for whether a person is in custody is whether a reasonable person would feel he was in custody and depends upon the totality of the circumstances.” Id. (citations omitted). “The key to determining if the questioning of a person is a custodial interrogation within the meaning of Miranda is whether the defendant is deprived of his freedom of action in any significant manner and whether he is aware of such restraint.” Id. (citation omitted).

¶ 22. Smith was not under arrest when Trooper Triplett asked her whether she had been drinking. Trooper Triplett did not testify regarding any statement Smith made after he arrested her — which was after he observed that she had been driving under the influence of alcohol. Smith was not deprived of her freedom in any manner whatsoever when Trooper Triplett asked questions intended to further his investigation of the one-vehicle accident. Trooper Triplett did not arrest Smith until after he had determined that she had been driving under the influence of alcohol. Accordingly, we find no merit to this issue.

IV. REOPENING OF THE PROSECUTION’S CASE-IN-CHIEF

¶ 23. After the prosecution announced that it was resting its case-in-chief, Smith moved for a directed verdict on the basis that the prosecution had not presented evidence that Smith had two prior convictions for DUI. The circuit court asked the prosecution to respond. The following exchange then occurred:

[THE PROSECUTOR]: Judge, my apologies to the Court. We normally read those into the record during jury instructions. Is that not my understanding as far as procedure? The Court asked if I had any other witnesses, and I stated that I did not.
BY THE COURT: No, ... it’s the burden of proof to show that within the past five years she had been twice previously — the jury will make that — that’s a jury question.
[THE PROSECUTOR]: Yes, Your Honor. I apologize. I misunderstood the instructions of the Court. We have both of the abstracts of the previous DUIs, certified copies here with me, Your Honor. It was my misunderstanding.
BY THE COURT: Do you move to reopen the case?
[THE PROSECUTOR]: Yes, Your Honor. I apologize, once again, to the Court. I misunderstood the instructions of the Court.
BY THE COURT: Do you have an objection?
[SMITH’S TRIAL ATTORNEY]: I do, Your Honor. Of course, that completely prejudices my client. We’re at a point in this trial where I have actually got up and raised my motion for a directed verdict, Your Honor. I am who put the State on alert by virtue of my motion. Your Honor, of course, I have to raise the issue of how it prejudices my client at this point if the Court will allow the State to reopen its case.
BY THE COURT: I think under the circumstances of this case, it would be proper. Your objection is overruled. I’m going to sustain the request of the prosecutor to reopen the case for further development of evidence.

¶ 24. According to Smith, the circuit court “violated its duty of impartiality in a criminal trial.” Citing the Fourteenth Amendment to the United States Constitution and Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972), Smith states that “[d]ue process requires that the trial judge be impartial and ensure that the accused receives a fair trial.” Smith then reasons that “[i]n trying to assure that the jury had all the information it needed to render the most just verdict, the [circuit] [c]ourt violated its duty of impartiality required as an element of due process.”

¶ 25. “Trial courts must not allow the state to reopen its case unless there is mere inadvertence or some other compelling circumstance and no substantial prejudice will result.” Lyle v. State, 987 So.2d 948, 951 (¶ 13) (Miss.2008). According to the prosecutor, he thought the circuit court had indicated earlier in an off-the-record discussion that the proper procedure was to read evidence of Smith’s two prior DUI offenses “into the record during jury instructions.” After the circuit court informed him that he was incorrect, the prosecutor explained that he “misunderstood the instructions of the [cjourt.” The prosecutor further explained that he had in hand certified copies of the abstracts of Smith’s two prior DUI offenses.

¶ 26. It is clear that the prosecutor’s failure to introduce evidence of Smith’s two prior DUI offenses was due to mere inadvertence in the form of a misunderstanding of the circuit court’s instructions. Although the circuit court’s decision arguably resulted in Smith’s conviction for felony DUI rather than a misdemeanor offense, Smith did not suffer substantial prejudice as a result of the circuit court’s decision to allow the prosecution to reopen its case-in-chief. Obviously, Smith’s trial attorney was prepared to defend Smith on a felony DUI charge which required the prosecution to prove two or more arrests and convictions for DUI. The circuit court’s decision did not invalidate Smith’s theory of the case or substantially delay Smith’s trial. We find no merit to Smith’s claim that the circuit court erred when it allowed the prosecution to reopen its casein-chief.

¶ 27. As for Smith’s claim that the circuit court was partial to the prosecution, we find no merit to that claim either. Although the circuit court asked the prosecution whether it moved to reopen its casein-chief, the circuit court did no less for Smith when it asked her trial attorney whether he objected to the prosecution’s motion. Thus, the circuit court “prompted” both the prosecution and Smith’s trial attorney during the same exchange. Accordingly, the circuit court treated both sides equally and did not act partial to the prosecution. It follows that this issue is meritless.

¶ 28. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE AND SENTENCE OF TWO YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHO-BA COUNTY.

IRVING, P.J., CARLTON and FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN RESULT ONLY. BARNES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, C.J., GRIFFIS, P.J., ISHEE AND RUSSELL, JJ.

BARNES, J.,

dissenting:

¶ 29. I find reversible error in the failure of the State to prove an essential element of felony DUI; therefore, I respectfully dissent from the majority’s opinion. In its appellate brief, the State cites to Smith v. State, 950 So.2d 1056 (Miss.Ct.App.2007) for the proposition that both prior offenses for felony DUI had to have been committed within five years of the current offense. However, the State’s cite to Smith reveals a different defect in the evidence presented than that argued by the defense — lack of the offense date in one of the supporting documents. Smith notes that Mississippi Code Annotated section 63 — 11—30(2)(c):

requires that the State prove two things for each conviction. First, the offense resulted in a conviction for DUI; and second, the offense for which the defendant was convicted occurred within five years of the charged offense. Evidence of both the date the offense was committed, normally the date of the arrest, and that the arrest/offense resulted in a conviction are necessary to sustain a conviction under Section 63-ll-30(2)(c).

Id. Therefore, Smith holds that there must be evidence of both the date of the arrest and the conviction of the two prior DUIs in order to convict for felony DUI.

¶ 30. Applying Smith to this case, it is clear that the State failed to establish that three DUIs were committed within five years as required under section 63-11-30(2)(c). While, in the instant case, Smith’s counsel did not specifically raise this issue, I find the plain error doctrine would apply. This Court has addressed as plain error instances regarding the sufficiency of the evidence when the State has failed to prove an element of a crime. Unlike the majority, I find that failure “is so fundamental that ... it would be a substantial miscarriage of justice to permit” a conviction to stand. See Carr v. State, 770 So.2d 1025, 1030 (¶ 16) (Miss.Ct.App.2000).

¶ 31. At trial, the State entered into evidence, belatedly, certified copies of court records for two prior DUI convictions. Exhibit S-5 included an abstract of a court record on Smith’s conviction for DUI second offense, which included both the date of the offense and conviction date of April 4, 2004, and April 27, 2004, respectively. The other exhibit, S-6, was a certified copy of a judgment finding Smith guilty for felony DUI, dated August 31, 2006. However, the judgment did not specify the date the offense was committed.

¶ 32. In Smith, which is almost identical to this case, this Court reversed the defendant’s conviction for felony DUI and remanded for resentencing under DUI second offense because of insufficient proof of two prior DUI convictions within five years. Id. at 1060-61 (¶ 18). The State entered two documents into evidence to prove the two prior DUI convictions. A court abstract was used to prove the first supporting offense, which included both the date of the offense and conviction. The second document was a certified judgment finding Smith guilty of DUI third or subsequent offense, but it did not identify the date the offense was committed, just as in this case. Id. at (¶3). This Court explained that it is possible for the date of the offense/arrest for the second supporting conviction to occur before the date of the first supporting offense/arrest, which could place it outside of the five-year window. Id. at 1060 (¶ 15).

¶ 33. Here, even giving the State the benefit of all inferences drawn from the evidence, there was no evidence provided that the second-supporting offense occurred within five years of the charged offense. We cannot assume facts not entered into evidence that are an element of the offense; it is the State’s burden to prove all elements of a criminal offense. The majority points out that the prosecutor represented the date of this offense to be May 17, 2006, when he moved to introduce the judgment entered August 31, 2006. However, there is no evidence in the record to support this statement. “[Cjounsel may not, under the guise of argument, state facts that have not been proved by the evidence.” Branch v. State, 882 So.2d 36, 76 (¶ 131) (Miss.2004) (quoting Burns, 729 So.2d 203, 229 (¶ 134) (Miss.1998)). Additionally, the majority contends the cause number of the indictment is sufficient proof that the offense was committed within five years under section 63 — 11—30(2)(c). I disagree. Just because Smith was indicted within five years of the current offense does not mean that the second-supporting offense occurred within that time frame. It is perfectly possible for the indictment to have been returned in 2006, to have been within the two-year statute of limitations for prosecutions under Mississippi Code Annotated section 99-1-5 (Rev.2007), but for the second-supporting offense to have still occurred more than five years before the DUI at issue. The evidence necessary to enforce the enhanced sentence for felony DUI is simply lacking in this case. Accordingly, I would reverse and remand on the sufficiency of the evidence of the prior convictions, and remand the case to the Circuit Court of Neshoba County in order to sentence Smith for violation of section 63 — 11—30(2)(b), or DUI second offense.

LEE, C.J., GRIFFIS, P.J, ISHEE AND RUSSELL, JJ„ JOIN THIS OPINION.

      . The measure of alcohol in one’s system by "weight volume” is not unfamiliar in our jurisprudence. Mississippi Code Annotated section 59 — 23—7(l)(c) (Rev.2004) makes it "unlawful for any person to operate a watercraft on the public waters of this state” if that person ”[h]as eight one-hundredths percent (.08%) or more by weight volume of alcohol in the person’s blood.” (Emphasis added).

      . The record does not reflect the date of Smith's first DUI offense or the date she was convicted of that offense. For our purposes, Smith’s second overall DUI offense and conviction is the first sequential offense that led to her sentence for felony DUI. In other words, Smith’s most recent DUI conviction is her fourth conviction for DUI and her second conviction for felony DUI.

      . It was not until after the State had rested and the defense had moved for a directed verdict on felony DUI that the State offered to put into evidence the two exhibits of convictions for prior DUIs. I agree with the majority that it was not reversible error for the trial court to reopen the case to admit this evidence. However, we cannot presume the State had a certified document that would prove the date of the second-supporting offense since it did not offer one into evidence.


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    Darrell WALKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01440-COA.
    Court of Appeals of Mississippi.
    April 10, 2012.
    Rehearing Denied Aug. 28, 2012.

      Phillip W. Broadhead, Oxford, Leslie S. Lee, Jackson, Ja’Nekia W. Barton, Joshua C. Lawhorn, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before IRVING, P.J., BARNES and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On July 21, 2010, a jury convicted Darrell Walker of accessory after the fact to capital murder and motor-vehicle theft. The Hinds County Circuit Court sentenced Walker as a habitual offender to life in the custody of the Mississippi Department of Corrections without eligibility for parole or probation.

¶ 2. On July 28, 2010, Walker filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV), which the circuit court denied. Feeling aggrieved, Walker appeals and argues that the circuit court erred in giving jury instruction S-2 and in denying his motion for a new trial or a JNOV.

¶ 8. Finding no error, we affirm.

FACTS

¶ 4. On May 20, 2008, William Roy Jones Jr. broke into Juliet Lilly’s house and stole several items. Jones sold the items in exchange for drugs. Jones returned to Lilly’s house later in the evening to steal more items. After discovering that Lilly was at home, Jones attacked Lilly, repeatedly stabbed her, and left her to die. Jones then loaded more of Lilly’s belongings into her Mitsubishi Mirage and drove the car to the Appleridge Shopping Center parking lot. Jones took some of the stolen items to his girlfriend’s house, which was nearby. Jones’s girlfriend lived with her mother, Ethel Smith, and Smith’s boyfriend, Walker. While at his girlfriend’s house, Jones changed clothes and then left. Jones later returned and asked Walker if he knew how to drive a standard-shift car, and Walker responded that he did. According to Jones’s statement, Walker left the house with him and agreed to drive Lilly’s stolen vehicle to the Elton Park Apartments to buy marijuana. After-wards, Jones and Walker returned the car to the shopping center parking lot.

¶ 5. On May 21, 2008, Walker saw a news report on Lilly’s murder and began to suspect that Jones had killed Lilly. Walker sought the advice of his friend, Rod McFarland, and his brother, Eric, about whether he should report Jones to the police. McFarland later spoke with the police about what Walker had told him, and the police went to Walker’s house and took him in for questioning.

¶ 6. Walker admitted in his police statement that when Jones initially came to Smith’s house, he was covered in blood. Walker asked Jones what he had done, but Jones replied that it was none of his business. Walker also admitted that he drove Lilly’s stolen vehicle to the Elton Park Apartments with Jones and then returned the car to the shopping center parking lot. Walker claimed that he did not know that the car belonged to Lilly until after seeing the news broadcast about her murder. Walker told the police that after seeing the news broadcast, he began to suspect that Jones had murdered Lilly and had stolen her car.

¶ 7. At trial, Smith testified that, on the day of Lilly’s murder, Walker came into the bedroom and told her that Jones had brought stolen property into the house. Smith claimed that she had told Jones to “get the stuff out [of] my house.” Additionally, Smith testified that she tried to stop Walker from leaving with Jones, but Walker accused her of trying to “stop him from hitting a lick.” When Walker returned to the house, he did not say where he had been or what he had done.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Jury Instruction S-2

¶ 9. Walker argues that the circuit court erred in giving jury instruction S-2 because it was unsupported by the evidence presented at trial, and it confused and misled the jury. The giving or denying of jury instructions is “within the sound discretion of the [circuit] court.” Harden v. State, 59 So.3d 594, 608 (¶ 38) (Miss.2011) (citing Rubenstein v. State, 941 So.2d 735, 787 (¶ 239) (Miss.2006)). When reviewing a challenge to jury instructions, the instructions must be examined “as a whole and not in isolation.” Id. (citing Walker v. State, 913 So.2d 198, 234 (¶ 132) (Miss.2005)). The circuit court may “refuse a jury instruction when it is an incorrect statement of law, is fairly covered in other instructions, or has no foundation in the evidence.” Id. (citing Ruffin v. State, 992 So.2d 1165, 1176 (¶ 33) (Miss.2008)). “If the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. (quoting Montana v. State, 822 So.2d 954, 958 (¶ 10) (Miss.2002)).

¶ 10. Walker did not object to instruction S-2 on the ground that it was unsupported by the evidence or that it would be confusing and misleading to the jury. Walker’s counsel objected to S-2 because the instruction did not match the indictment. The Mississippi Supreme Court has held that “[a]sserting grounds for an objection on appeal that differ[] from the ground given for the objection at the trial level does not properly preserve the objection for appellate review.” Woodham v. State, 779 So.2d 158, 161 (¶ 12) (Miss.2001) (citing Paracelsus Health Care Corp. v. Willard, 754 So.2d 437, 441 (¶ 16) (Miss.1999)). As such, Walker’s objection to instruction S-2 on the grounds that it is unsupported by the evidence and confusing and misleading is procedurally barred.

¶ 11. Procedural bar notwithstanding, Walker’s contention of error is without merit. Over Walker’s objection, the circuit court gave instruction S-2, which reads as follows:

The Defendant in this case is accused as an accessory before the fact, or an accomplice to [m]otor[-v]ehicle [t]heft. Each person present at any time of an offense who knowingly and intentionally aids, assists[,] or encourages, or acts in concert with one or more other persons, and in any material manner in the commission of the principal crime charged, [m]otor[-v]ehicle [tjheft, by knowingly and intentionally doing any act furthering the accomplishment of the crime, then the person so aiding or assisting is responsible and accountable for all of the alleged wrongful actions of the person or persons so aided or assisted. Therefore, if you find[,] beyond a reasonable doubt in this case[,] that Darrell Walker herein so aided or assisted William Roy Jones Jr. in the actual commission of the offense charged, and that each and every element of said offense has been proved beyond a reasonable doubt, then you shall find the Darrell Walker guilty of [m]otor[-v]ehicle [tjheft.

(Emphasis added).

¶ 12. Walker argues that there is no evidence that he was an accessory before the fact or an accomplice to motor-vehicle theft. The State argues that instruction S-2 is supported by the evidence because the theft of Lilly’s vehicle was part of one continuous transaction and, Walker, even though he was indicted as a principal, could also be found guilty as an accomplice. We agree. Our supreme court has long held that “larceny is a continuous offense and is being committed at all times during which the thief deprives the owner of the stolen property of its possession.” Walker v. State, 188 Miss. 177, 183, 189 So. 804, 806 (1939). Thus, “every moment’s continuance of the ... felony amounts ... to a new caption and asportation.” Devine v. State, 132 Miss.492, 498, 96 So. 696, 696 (1923) (citations and internal quotations omitted).

¶ 13. Walker admitted that he'had driven Lilly’s car, even though it was after Jones had driven the car to the Appleridge Shopping Center. Because larceny, which includes motor-vehicle theft, is a continuous offense, Walker’s driving the car constituted a “new caption and asportation.” Thus, there was sufficient evidence to support jury instruction S-2.

¶ 14. Walker also contends that instruction S-2 is confusing and misleading. Our supreme court has previously considered a jury instruction with language similar to the language in instruction in S-2. In Berry v. State, 728 So.2d 568, 570 (¶ 4) (Miss.1999), the circuit court granted jury instruction S-3, which defined an accessory as follows:

The Court instructs the jury that each person present at the time, and consenting to and encouraging the commission of a crime, and knowingly, willfully[,] and feloniously doing any act which is an element of the crime, or immediately connected with it, or leading to its commission, is a principal.
One who aids, assists[,] and encourages a transfer of cocaine is a principal and not an accessory, and his guilt in nowise depends upon the guilt or innocence, the conviction or acquittal of any other alleged participant in the crime. Therefore[,] if you believe from the evidence, beyond a reasonable doubt, that Merlin-da Berry did willfully, unlawfully[,] and feloniously do any act which is an element of the crime of transfer of cocaine, as defined by the Court’s instructions, or immediately connected with it, or leading to its commission, then and in that event, you should find Merlinda Berry guilty of transfer of cocaine as charged in the indictment.

(Emphasis added). Berry maintained that the instruction “reliev[ed] the State of its burden to prove every element of the crime beyond a reasonable doubt.” Id. at 571 (¶5). The supreme court held that other jury instructions adequately informed the jury of the State’s burden of proof. Id. at (¶ 9). Nevertheless, the supreme court found that instruction S-3 was confusing and misleading because it “appear[ed] to give the jury an additional option of finding the defendant guilty if she committed only one element of the crime without even finding that the crime was ever completed.” Id. As such, the supreme court reversed Berry’s conviction based on the confusing and misleading nature of instruction S-3. Id.

¶ 15. Similarly, Walker argues that instruction S-2 relieved the State of having to prove each element of motor-vehicle theft beyond a reasonable doubt. However, the jury instructions that were given completely belie Walker’s argument. In addition to instruction S-2, which states that every element of the offense had to be proven beyond a reasonable doubt, the circuit court also gave jury instruction S-l which reads as follows:

The Court instructs the jury that if you believe from all of the evidence, beyond a reasonable doubt, that
(1) the defendant, Darrell Walker,
(2) did, on or about the 21st day of May 2008,
(3) in the First Judicial District of Hinds County, Mississippi!!,]
(4) willfully, unlawfully, and felo-niously take possession and take away a motor vehicle, a 1996 Mitsubishi Mirage, which was the property of another!!,]
(5) with intent to permanently or temporarily convert same or deprive the owner of possession of ownership of said vehicle
then and in that event, you must find the defendant, Darrell Walker, guilty of [m]otor[-v]ehicle [t]heft.
If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the [djefendant not guilty of motor[-]vehicle theft.

(Emphasis added). Instruction S-l clearly required the State to prove all of the elements of motor-vehicle theft beyond a reasonable doubt. Reading the instructions as a whole, we find that the jury was properly informed of the State’s burden of proof in this case. Additionally, in contrast to the jury instruction given in Berry, instruction S-2 required that the jury find that Walker committed some act furthering the accomplishment of the crime of moto[-]vehicle theft and not just any act which is an element of the crime of motor-vehicle theft. As such, we find that instruction S-2 is distinguishable from the instruction complained about in Berry. This issue is without merit.

2. Weight of the Evidence

¶ 16. Walker argues that the circuit court erred in denying his motion for a new trial or, in the alternative, a JNOV. A request for a new trial challenges the weight of the evidence. Bush, 895 So.2d at 844 (¶ 18). An appellate court will not disturb a jury verdict unless “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (citing Herring v. State, 691 So.2d 948, 959 (Miss.1997)). Additionally, when reviewing the denial of a motion for a new trial, an appellate court views the evidence in the light most favorable to the verdict. Id. (citing Herring, 691 So.2d at 957).

¶ 17. After a thorough review of the record, we hold that the jury’s verdict is not against the overwhelming weight of the evidence. At trial, the State presented evidence that Walker knew that Jones had stolen property. Even though Walker claims that he did not know that the car that he drove belonged to Lilly, we find that a jury could have reasonably inferred that, at the very least, Walker knew that the car did not belong to Jones, yet he still agreed to drive the car. Additionally, Walker told the police that he saw Jones with blood on his clothes and even asked Jones if he had killed someone. Based on these facts, we cannot say that the jury’s verdict is against the overwhelming weight of the evidence or that allowing it to stand would sanction an unconscionable injustice. Accordingly, we hold that the circuit court did not err in denying Walker’s motion for a new trial. This issue is without merit.

3. Sufficiency of the Evidence

¶ 18. Walker’s motion for a JNOV challenges the legal sufficiency of the evidence presented at trial. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). When reviewing a challenge to the sufficiency of the evidence, all credible evidence must be viewed in the light most favorable to the State. Id. at (¶ 17). An appellate court will not disturb the circuit court’s ruling if:

[T]he evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test[,] it is insufficient to support a conviction.... Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.

Id. at (¶ 16) (internal citations and quotations omitted).

¶ 19. Walker was convicted of accessory after the fact to capital murder pursuant to Mississippi Code Annotated section 97-1-5 (Rev. 2006) and motor-vehicle theft pursuant to Mississippi Code Annotated section 97-17-42 (Supp.2011). Walker contends that there is insufficient evidence that he knew that Jones had committed a felony or that he had intended to aid Jones in avoiding capture after Jones killed Lilly. To support his contention, Walker points to the fact that once the police took him in for questioning, he told them that he suspected that Jones had killed Lilly and had stolen her car. Additionally, Walker argues that there is insufficient evidence to show that he committed motor-vehicle theft.

¶ 20. In his statement to police, which was admitted into evidence at trial, Walker stated that Jones was “covered in blood.” Additionally, Smith testified that Walker had informed her that Jones had brought stolen property into the house. Furthermore, Walker drove Lilly’s stolen vehicle at Jones’s request, knowing that the car did not belong to Jones. Based on the above, we find that a rational trier of fact could have found Walker guilty of acting as an accessory after the fact to capital murder and guilty of motor-vehicle theft beyond a reasonable doubt. As such, this contention of error is without merit.

¶ 21. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ACCESSORY AFTER THE FACT OF CAPITAL MURDER, AND COUNT II, MOTOR-VEHICLE THEFT, AND SENTENCE AS A HABITUAL OFFENDER TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . The record does not provide Eric’s last name.

      . Section 97-1-5 reads:
      Every person who shall be convicted of having concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that such person had committed a felony, with intent to enable such felon to escape or to avoid arrest, trial, conviction[,] or punishment, after the commission of such felony, on conviction thereof!,] shall be imprisoned in the penitentiary not exceeding five years, or in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both; and in prosecution for such offenses it shall not be necessary to aver in the indictment or to prove [at] the trial that the principal has been convicted or tried.

      . Section 97-17-42(1) reads:
      Any person who shall, willfully and without authority, take possession of or take away a motor vehicle of any value belonging to another, with intent to either permanently or temporarily convert it or to permanently or temporarily deprive the owner of possession or ownership, and any person who knowingly shall aid and abet in the taking possession or taking away of the motor vehicle, shall be guilty of a felony and shall be punished by commitment to the Department of Corrections for not more than ten (10) years.


author: RUSSELL, J„

text:
    QUARTER DEVELOPMENT, LLC, Appellant v. Sherry HOLLOWELL and Bonnie Urbanek Scott and The Estate of James E. Urbanek, Appellees.
    No. 2010-CA-02076-COA.
    Court of Appeals of Mississippi.
    April 24, 2012.
    Rehearing Denied Aug. 28, 2012.

      David Earl Rozier Jr., Jackson, Jenessa Jo Carter Hicks, attorneys for appellant.
    Timothy Michael Peeples, Oxford, attorney for appellees.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   RUSSELL, J„

for the Court:

¶ 1. Quarter Development, LLC appeals the circuit court’s order granting summary judgment in favor of Sherry Hollowell, Bonnie Urbanek Scott, and James “Jim” Urbanek (Appellees). Quarter Development argues that summary judgment was improper because there are genuine issues of material fact as to whether Quarter Development possessed marketable title at the time set for closing. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 5, 2009, Quarter Development and the Appellees entered into a contract for the sale of real estate in Lafayette County, Mississippi. The contract was signed by Mike Harris on behalf of Quarter Development, the seller, and by Jim Urbanek, the buyer. Urbanek deposited a check for $1,000 as “earnest money” with Quarter Development’s real-estate agent, Cherie Matthews.

¶ 3. The contract provided that Quarter Development would convey a warranty deed to the Appellees for the property on or before April 30, 2009, with an extension period of forty-five days if the purchaser so requested.

¶ 4. The contract further provided that a reasonable time be given for the examination of title, and that should this examination reveal defects that could be cured, Quarter Development would be obligated to cure such defects as expeditiously as possible and to execute and tender a warranty deed. The parties did not close on the loan on April 30, 2009 or June 14, 2009, the last date for closing under the contract.

¶ 5. On July 28, 2009, Quarter Development filed a lawsuit against the Appellees seeking specific performance of the contract, alleging breach of contract due to the Appellees’ failure to seek financing prior to the June 14, 2009 closing date; their bad faith in failing to seek financing; and their negligent representation of their intentions to seek financing prior to the June 14, 2009 closing date to Quarter Development’s detriment.

¶ 6. On January 22, 2010, the Appellees filed a motion for summary judgment arguing Quarter Development was not entitled to specific performance of the contract because it did not own the property at any time during the term of the contract; and therefore, Quarter Development was not ready, willing, and able to perform on or before June 14, 2009.

¶ 7. Real property tax records for Lafayette County, Mississippi indicate that Northpointe Development, LLC, owned the property until September 4, 2009. On September 4, 2009, the property was sold to Avatar, LLC, and Intrepid Group, LLC, due to unpaid taxes by Northpointe. On September 9, 2009, Avatar sold the property to Quarter Development.

¶ 8. On February 8, 2010, Quarter Development filed a counter-motion for summary judgment arguing they were in fact entitled to specific performance because the Appellees were bound by the terms of the contract, and that they did in fact hold marketable title at the time of closing and were therefore able to convey a warranty deed as contemplated by the contract. Quarter Development further argued that any defect found in the title to the property could and would have been cured on or prior to the June 14, 2009 closing date.

¶ 9. On July 7, 2010, the circuit court entered an order granting Appellees’ motion for summary judgment and denying Quarter Development’s counter-motion for summary judgment. Later on December 1, 2010, the circuit court denied Quarter Development’s motion for reconsideration or, in the alternative, for amendment to the opinion and order. Quarter Development timely appealed.

DISCUSSION

¶ 10. This Court conducts a de novo review of a circuit court’s grant or denial of a motion for summary judgment. Holmes v. Campbell Props., Inc., 47 So.3d 721, 723 (¶ 6) (Miss.Ct.App.2010) (citing Lewallen v. Slawson, 822 So.2d 236, 237 (¶ 6) (Miss.2002)). Summary judgment is appropriate “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 and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). The facts are viewed in light most favorable to the non-moving party. City of Jackson v. Annie Mae Sutton, 797 So.2d 977, 979 (¶ 7) (Miss.2001).

¶ 11. The circuit court focused its ruling on whether Quarter Development was ready, willing, and able to perform its contractual duties at or prior to the June 14, 2009 closing date. More specifically, the circuit court looked to whether Quarter Development held marketable title at or prior to that date. The circuit court concluded that Quarter Development did not hold marketable title at or prior to the time of closing and therefore was not entitled to specific performance.

I. Breach of Contract and Specific Performance Remedy

¶ 12. Quarter Development argues it is entitled to specific performance of the contract because the Appellees breached them contractual duty to purchase the property. The Appellees argue that Quarter Development could not have performed its duty to convey a warranty deed because it did not hold merchantable title to the property at the time of closing; therefore, Quarter Development was not entitled to specific performance. We agree with the Appellees.

¶ 13. Mississippi law prohibits an award of specific performance unless the party seeking that relief performs his or her part of the contract within the time allotted for his or her performance. Gunn v. Heggins, 964 So.2d 586, 591-92 (¶¶ 9-10) (Miss.Ct.App.2007). In this case, the contract period ended on April 30, 2009, with an option to extend for a 45-day period. Quarter Development and the Appellees did not close on the contract on April 30, 2009, June 14, 2009, or any other date. During the contractual period, Quarter Development did not own the property. In fact, Quarter Development did not own the property until September 9, 2009, well after the June 14, 2009 closing date, and therefore could not perform its contractual duty. A party cannot obtain a decree for specific performance without showing compliance or readiness to comply with his part of the contract. Id. at 590 (¶ 7). Quarter Development could not show readiness because, as indicated by LaFayette County property-tax records, it did not own the property at the time of closing.

¶ 14. Quarter Development argues that the Appellees did not fulfill their contractual obligation because they did not obtain financing or come to the closing table. Specific performance is not an appropriate remedy when neither party is ready, willing, and able to perform under the terms of a contract at the time performance is due. Point S. Land Trust v. Gutierrez, 997 So.2d 967, 979 (¶ 33) (Miss.Ct.App.2008).

¶ 15. Even if the circuit court found that the Appellees did not obtain financing to close on the contract after June 14, 2009, both parties would be discharged from performing their contractual duties because it was “too late for either party to make an offer to perform.” Id. When both parties cannot or do not perform under a contract, neither party is in breach of the agreement. Id. Thus, Quarter Development is not entitled to specific performance of the contract.

II. Marketable Title

¶ 16. In Gunn, the Court explained that:

A contract to sell and convey real estate ordinarily requires a conveyance of the fee simple title which is free and clear of all liens and encumbrances, unless restricted by other provisions of the contract. When a seller agrees to convey property by warranty deed, he warrants that the title conveyed is without defect, i.e. the title is clear and marketable.

Gunn, 964 So.2d at 591 (¶ 8) (quoting and citing Ferrara v. Walters, 919 So.2d 876, 883 (¶¶ 17-18) (Miss.2005)) (internal citation omitted). Quarter Development did not own the property at the time of closing and therefore was not in a position to sell. “Good title is not merely a title valid in fact, but a marketable title, which may be sold or mortgaged.” Id. at 592 (¶ 9). Because Quarter Development did not own the property until September 9, 2009, long after the June 14, 2009 closing date, it could not have sold what it did not possess. Thus, Quarter Development could not have conveyed clear and marketable title.

¶ 17. Quarter Development argues that the very essence of a warranty deed is that defects may be cured even after the sale of the property, citing Ferrara, which provides that warranty deeds warrant “that the title conveyed is without defect, i.e., clear and marketable.” Ferrara, 919 So.2d at 883 (¶ 18). Quarter Development further argues that it could have conveyed a warranty deed at the time of closing because the defect in title could have easily been cured had the opportunity been afforded. The Court observed in Gunn that “although it may have been a simple judicial procedure to probate and cure title to the property, the fact remains the [the party] never did so during the contractual period. This failure constituted a defect in the title.” Gunn, 964 So.2d 586 at 592 (¶ 9). Similarly, regardless of whether Quarter Development could have cured the title defect by purchasing the property, the argument is null and void. Quarter Development had only until June 14, 2009, to cure any and all defects. Because Quarter Development had not even purchased the property at this time, it did not have marketable title such that a warranty deed could have been conveyed.

III. Summary Judgment

¶ 18. This Court may grant summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). This Court will consider all of the evidence before the circuit court in the light most favorable to the non-moving party. Id. Quarter Development contends that whether or not it held marketable title at the time of closing is a genuine issue of material fact. It argues that it did in fact hold marketable title prior to and at the time of closing. However, this argument is without merit. Other than claiming to have marketable title, Quarter Development has provided no evidence proving that it owned the property prior to September 9, 2009, well after the closing date. In fact, LaFayette County property-tax records show that Quarter Development did not own the property during the contract period. Thus, there is no genuine issue of material fact as to whether Quarter Development had marketable title to the property at the time for closing stated in the contract. To simply argue that it held marketable title to property that it did not even own does not raise an issue of material fact as to make the grant of summary judgment improper.

¶ 19. For the foregoing reasons, we affirm the judgment of the Circuit Court of LaFayette County, Mississippi.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.

      . James Urbanek passed away on August 24, 2009, and his estate was substituted as the appellee.


author: GRIFFIS, P.J.,

text:
    Romalas GREGORY, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00204-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2012.

      Thomas Roy Trout, New Albany, Kenneth Harold Coghlan, Oxford, Stuart Sheffield Davis, attorneys for appellant.

      Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Romalas Gregory was convicted in the Lafayette County Circuit Court of simple possession of a controlled substance, cocaine, in violation of Mississippi Code Annotated section 41 — 29—139(c)(1) (Supp. 2011). He was sentenced to serve eight years in the custody of the Mississippi Department of Corrections, with five years to serve, three years suspended and three years of supervised probation. Gregory was also convicted of possession of less than thirty grams of marijuana. However, the possession conviction was set aside at the State’s request. On appeal, Gregory argues the circuit court erred when it refused to allow his defense attorney, T.R. Trout, to withdraw as his counsel. Gregory also argues that the circuit court erred when it gave an instruction on possession as a lesser-included offense. We find no error and affirm.

FACTS

¶ 2. On November 2, 2009, Lafayette County Metro Narcotics Unit agents served an arrest warrant on Gregory at his residence. Gregory and Michael Adams were present. Gregory was inside the house, and Adams was outside. When Gregory exited the house with the agents, the agents noticed him reach into the crotch area of his pants. The agents stopped him. Then, they retrieved cocaine and marijuana from inside of his underwear, as well as cash from his pockets.

¶ 3. Adams was about twenty-five feet from Gregory when the agents found the cocaine. Gregory said he was holding the cocaine for Adams. Adams heard this and stated that it was his cocaine and not Gregory’s cocaine. Gregory consented to a search of his house. The agents found more marijuana and more cash. The agents also found a crack pipe on Adams.

¶ 4. According to Adams, on the morning of November 2, 2009, Adams bought two pieces of crack cocaine from a drug dealer at a local community store. He then returned to his own home and smoked some of the cocaine. Adams testified that Gregory picked him up and brought him to Gregory’s house to do yard work. At that time, Adams still had some cocaine in his pocket. Adams lit a fire to burn some trash, but he was concerned about the cocaine melting in his pocket. So, he went back to Gregory’s house and laid the cocaine on a table in the basement. After doing some work, Adams came up to the house and was looking for the cocaine. Adams testified that when the police arrived he was about to ask Gregory where the cocaine was.

¶ 5. Gregory was charged with possession of crack cocaine with intent to distribute. Adams was charged with conspiracy to possess a controlled substance, but that charge was never presented to the grand jury.

¶ 6. Forensic tests confirmed that the agents found 1.5 grams of cocaine (a Schedule II substance) and a total of 26 grams of marijuana (a Schedule I substance). Additional facts specific to the two issues on appeal will be discussed below.

ANALYSIS

1. Conflict of Interest

¶ 7. Trout previously worked in the district attorney’s office. While there, he had prosecuted Gregory on an entirely unrelated drug charge, six years earlier. Trout brought up the possibility of a conflict of interest the day before Gregory’s trial began. Two days before trial, the State gave Trout a file that it intended to use to enhance Gregory’s sentence. At that time, Trout realized he had assisted in the prosecution of Gregory on a prior unrelated charge. Trout’s involvement in the prior prosecution was that he had signed the indictment, took Gregory’s plea, and prepared an order reflecting the plea. There was no evidence to indicate why Gregory’s prior case then languished for several years. When a new prosecutor took over the case, Gregory entered a new plea petition that reduced the charge.

¶ 8. Trout discussed these facts with Gregory. Gregory decided that he no longer wanted Trout to represent him. The State agreed not to introduce the prior conviction in its case in chief or to use it for impeachment purposes. Trout claimed that Gregory no longer had confidence in Trout’s representation. The circuit court overruled Trout’s motion to withdraw and stated, “as far as Mr. Trout is concerned!,] Mr. Gregory!,] I have known Mr. Trout for a long time. He is an honorable person and a good trial lawyer and he will give you a good defense. I see no relation between those two offenses.”

¶ 9. “A trial court’s findings of fact when considering a motion to disqualify an attorney are reviewed for manifest error.” Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1220 (¶ 51) (Miss.2001) (citing Colson v. Johnson, 764 So.2d 438, 439 (¶ 4) (Miss.2000)). The trial court has broad discretion. Id.

¶ 10. This Court must first determine whether these circumstances present an actual conflict of interest or a potential conflict of interest because “once an actual conflict is demonstrated, a showing of specific prejudice is not necessary.” Littlejohn v. State, 593 So.2d 20, 24 (Miss.1992) (quoting United States v. Alvarez, 580 F.2d 1251, 1259 (5th Cir.1978)). However, when there is only a potential conflict of interest, a defendant must show that “a conflict of interest actually affected the adequacy of his representation.” Mickens v. Taylor, 535 U.S. 162, 168, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). Therefore, whether Gregory must demonstrate prejudice turns on whether the conflict of interest was actual or potential.

¶ 11. Mississippi has applied the Fifth Circuit Court of Appeal’s definition of “actual conflict”:

If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interests of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client.

Irving v. Hargett, 518 F.Supp. 1127, 1144 (N.D.Miss.1981) (citing Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir.1979)) (emphasis added). Throughout Gregory’s brief, he refers to the conflict of interest as an actual conflict. Yet, Gregory does not explain why the conflict should be labeled an actual conflict.

¶ 12. Mississippi Rule of Professional Conduct 1.9 governs current and former client conflicts of interest:

A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.

¶ 13. Neither appellate brief addressed Rule 1.9. Instead, both briefs cite Mississippi Rule of Professional Conduct 1.7, which provides:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes:
(1) the representation will not adversely affect the relationship with the other client; and
(2) each client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the adverse representation and the advantages and risks involved.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless the lawyer reasonably believes:
(1) the representation will not be adversely affected; and
(2) the client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the representation and the advantages and risks involved.

¶ 14. Rule 1.7 is the general conflict of interest rule, but it is not applicable here. Trout does not represent two current clients in a simultaneous representation. Here, the potential conflict of interest is between a former client and a current client. In 2010, at the time of his representation of Gregory, Trout did not work for the district attorney’s office.

¶ 15. “No citation of authority is necessary for the obvious proposition that a conflict of interest will exist for a prosecutor who previously represented a particular defendant in a particular case.” Ousley v. State, 984 So.2d 985, 987 (¶ 8) (Miss.2008). In those types of situations, the lawyer has an actual conflict of interest and cannot begin to prosecute the former defense client. Id. Gregory’s circumstances are the reverse of this scenario and do not present the same concerns about the sharing of confidential communications. Trout had represented the State where Gregory’s (his current client) interests were materially adverse to the State’s (his former client) interests. However, that prior representation was not “in the same or a substantially related matter.” M.R.P.C. 1.9. That prior representation was in a wholly unrelated drug charge separated in time by at least four years.

¶ 16. The comment to Rule 1.9 states “[t]he lawyer’s involvement in a matter can also be a question of degree.” Trout’s involvement was neither extensive nor intensive. He did not bring the case to completion. The case did not involve a trial. Trout only signed the indictment, took Gregory’s plea, and prepared an order reflecting the plea. This was not the same plea that Gregory ultimately was convicted of and received punishment for in this case. Trout was not “so involved in the matter that the subsequent representation [of Gregory on a different charge years later could] be justly regarded as a changing of sides in the matter in question.” M.R.P.C. 1.9 cmt. A different prosecutor concluded the case with an entirely new plea petition several years later. There was no violation of Rule 1.9 and no actual conflict of interest.

¶ 17. Trout did not demonstrate anything to suggest his loyalty was compromised, nor that an actual conflict existed. This situation was a potential conflict; the nature of Trout’s involvement in the prior prosecution of a wholly unrelated charge shows there was no actual conflict of interest.

¶ 18. Gregory must demonstrate prejudice because there was only a potential conflict of interest. “[A] potential for conflict or hypothetical or speculative conflicts will not suffice for reversal.” Stringer v. State, 485 So.2d 274, 275 (Miss.1986); see also Cuyler, 446 U.S. at 350, 100 S.Ct. 1708; Alvarez, 580 F.2d at 1259. A defendant must show “that his counsel actively represented conflicting interests,” to show “the constitutional predicate for his claim of ineffective assistance.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1708 (emphasis added). Gregory has not shown any instances where the potential conflict of interest actually affected the adequacy of his trial counsel’s representation. Because these circumstances were only a potential conflict of interest, Gregory is not entitled to rely on the assertion that he is not required to show prejudice. Gregory has not made a showing of specific prejudice that is necessary to establish error in the circuit court’s ruling.

¶ 19. This Court finds that Gregory failed to prove that an actual conflict existed and failed to prove the potential conflict of interest prejudiced his defense. Thus, he failed to meet the two prongs of Cuyler. Id. Therefore, this Court finds no error in the circuit court’s ruling that disallowed Gregory’s trial counsel from withdrawing his representation.

¶ 20. Therefore, this issue has no merit.

2. Jury Instruction on Possession as a Lesser-included Offense

¶ 21. Next, Gregory argues that the circuit court erred when it gave jury instruction number 9 on possession as a lesser-included offense. This instruction concerned possession of a controlled substance, cocaine. Instruction number 8 dealt with possession of cocaine with intent to sell, transfer, or distribute. Instruction number 10 was on the charge of possession of marijuana. Trout argued that instruction number 9 “refer[red] to a crime which doesn’t exist.”

¶22. Gregory now argues that possession is not lesser included because quantity is not an element of the intent offense, but quantity is an element of possession. The State argues that weight is in the statute for the purpose of sentencing options for the judge, not the jury, and weight is not an element of the crime of possession. The circuit court ruled that an interpretation of Mississippi Code Annotated section 41 — 29—139(c) yields the conclusion that possession would be included as a lesser-included offense and granted instruction number 9.

¶ 23. Jury instruction number 9 must be “supported by the evidence and be a correct statement of the law.” Bailey v. State, 837 So.2d 228, 232 (¶ 11) (Miss.Ct.App.2003). There is no “reversible error where the instructions actually given, when read together as a whole, fairly announce the law of the case and create no injustice.” Adkins v. Sanders, 871 So.2d 732, 736 (¶ 9) (Miss.2004) (internal citation and quotation marks omitted). “A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Howell v. State, 860 So.2d 704, 745 (¶ 142) (Miss.2003) (citation omitted).

¶ 24. The circuit court correctly interpreted Mississippi Code Annotated section 41-29-139(c) to mean that possession would be a lesser-included offense because this Court has consistently held that “[possession of a controlled substance is a lesser-included-offense of possession of a controlled substance with the intent to distribute.” Torrey v. State, 816 So.2d 452, 454 (¶ 3) (Miss.Ct.App.2002) (citing Hicks v. State, 580 So.2d 1302, 1306 (Miss.1991)); see also Edwards v. State, 878 So.2d 1106, 1109 (¶ 15) (Miss.Ct.App.2004).

¶ 25. From the statute’s language, weight is not an element of the offense of possession. Weight is the basis for the judge’s sentencing options. Mississippi Code Annotated section 41-29-139(a)(l), the possession with intent statute, states “it is unlawful for any person knowingly or intentionally: (1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance.” Section 41-29-139(b) contains the sentencing options for violators of 41-29-139(a). Section 41-29-139(c) is the simple possession statute, stating “[i]t is unlawful for any person knowingly or intentionally to possess any controlled substance.” “The penalties for any violation of this subsection (c) ... shall be based on ... the weight of the controlled substance as set forth herein as appropriate.” Miss.Code. Ann. § 41-29-139(c) (emphasis added). Section 41-29-139(c)(l) states “[a] controlled substance classified in Schedule I or II, ... shall be charged and sentenced as follows.” Miss.Code. Ann. § 41 — 29—139(c)(1) (emphasis added). The varying sentencing options based on weight/quantity are listed in section 41-29-139(c)(l)(A)-(E).

¶ 26. A possession offense meets the definition of a lesser-included offense because it is an offense necessarily committed along with the offense charged of possession with intent. There is no additional element of proof involved in a possession case versus a possession with intent case.

¶ 27. “[I]f a ‘rational’ or a ‘reasonable’ jury could find the defendant not guilty of the principal offense charged in the indictment yet guilty of the lesser[-]included offense,” then a lesser-included-offense instruction is warranted. Mease v. State, 539 So.2d 1324, 1330 (Miss.1989) (citation omitted). Additionally, the lesser-included-offense instruction was not erroneous because the jury was entitled to convict Gregory of an “inferior offense ... necessarily included within the more serious offense charged in the indictment.” Booze v. State, 964 So.2d 1218, 1222 (¶ 17) (Miss.Ct.App.2007) (internal citation and quotation marks omitted); see also Miss. Code Ann. § 99-19-5 (Rev.1994).

¶ 28. Gregory supplemented his brief with Jamison v. State, 73 So.3d 567 (Miss.Ct.App.2011). “[I]f the government seeks enhanced penalties based on the amount of drugs, ... the quantity must be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable doubt.” United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir.2000). “[W]here quantity in a drug possession charge affects the severity of the potential sentence, it is an essential element of the offense which must be charged by the grand jury.” Jamison, 73 So.3d at 572 (¶ 16) (emphasis added); see also United States v. Wilkes, 130 F.Supp.2d 222, 234 (D.Mass.2001) (finding quantity was an element under the federal grand-jury right).

¶ 29. Jamison’s sentence was vacated not because possession was not considered lesser included. His sentence was vacated “because the [in-court] amendment to the indictment increased the charged drug quantity thereby exposing Jamison to a more severe sentence than authorized by the statutory maximum in the original indictment.” Jamison, 73 So.3d at 572(¶ 18).

¶ 30. The facts in Jamison are distinguishable from Gregory’s case. Jamison revolved around increased punishment and an amended indictment. Gregory’s indictment included a specific amount of cocaine, 1.5 grams. An expert witness testified to that quantity, and there was no amended indictment or increased sentence. This Court in Jamison found the dictates of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), were not offended in two other cases where the defendants “were not exposed to increased maximum sentences and more severe punishments if convicted.” Jamison, 73 So.3d at 571 (¶ 13). This is similar to Gregory who also was not exposed to an increased maximum sentence.

¶ 31. This Court noted in Jamison that the “analysis would differ if the sentence imposed under the amended indictment falls within the sentencing range allowed under the original indictment.” Id. at 572 n. 5. Jamison did not concern any issues of whether possession was in fact a lesser-included offense, nor change any existing precedent in that particular area. It dealt with quantity only in the context of amended indictments and increased sentences.

¶ 32. Therefore, this issue has no merit.

¶ 33. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF EIGHT YEARS, WITH FIVE YEARS TO SERVE, THREE YEARS SUSPENDED, AND THREE YEARS OF SUPERVISED PROBATION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

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

      . Even if there was a violation of Rule 1.9, the client that Rule 1.9 seeks to protect is the former client as demonstrated in the language “materially adverse to the interest of the former client,” "unless the former client consents,” and "disadvantage of the former client.” In this case, the former client was the state, and the current client is Gregory.


author: CARLTON, J.,

text:
    Melinda BRELAND, Appellant v. HARRISON COUNTY SCHOOL BOARD, Appellee.
    No. 2011-CA-00871-COA.
    Court of Appeals of Mississippi.
    Aug. 14, 2012.

      Thomas E. Payne, Billie Jo White, Starkville, attorneys for appellant.
    Albert Lionel Necaise, Gulfport, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. On May 23, 2011, the Harrison County Chancery Court granted a motion to dismiss filed by the Harrison County School Board (HCSB). Melinda Breland appeals from the order of dismissal and raises the following assignments of error: (1) whether the chancellor erred in granting the HCSB’s motion to dismiss on the ground that Breland failed to timely appeal her case to the chancery court after receiving notice of the school board’s final decision terminating her employment; and (2) whether the chancellor erred in granting the HCSB’s motion to dismiss on the grounds that Breland failed to perfect her appeal by not paying a $200 bond, when the court dismissed the action prior to a hearing on the merits and without allowing Breland the opportunity to perfect her appeal by paying the minimal bond, constituting a dismissal on form rather than substance. Finding no error, we affirm.

FACTS

¶ 2. Breland worked as a public school teacher at West Wortham Elementary School in the Harrison County School District (HCSD). On May 21, 2010, Heather Blenden, the principal of West Wortham Elementary School, recommended to Henry Arledge, the Superintendent of Education for the HCSD, that Breland be terminated due to her history of verbal and physical violence against children in a setting in which Breland was charged with assuming the safety and well-being of the children. Thereafter, the HCSD provided Breland with notice of her termination with an effective date of May 27, 2010. In accordance with Mississippi Code Annotated section 37-9-111 (Rev.2007), Breland requested a termination hearing. The termination hearing commenced on September 21, 2010, before a hearing officer.

¶ 3. The HCSB subsequently reviewed the September 21, 2010 hearing transcript and heard closing argument from Bre-land’s attorney, Thomas E. Payne, on December 6, 2010. On December 12, 2010, the HCSB voted to uphold the recommendations of the superintendent to not continue Breland’s employment with the HCSD.

¶ 4. During oral arguments before the chancery court, Albert L. Necaise, attorney for the HCSB, informed the chancellor that on December 17, 2010, a letter dated December 16, 2010, was sent to Payne by U.S. Mail and facsimile, notifying Payne of the decision of the HCSB.

¶ 5. On January 10, 2011, Breland filed a notice of appeal, which was dated January 7, 2011, with the Harrison County Chancery Clerk. Breland, however, failed to file the required bond under Mississippi Code Annotated section 37-9-113(2) (Rev. 2007). Thereafter, on April 15, 2011, the HCSB moved to dismiss Breland’s appeal as untimely and for failure to post the required bond under section 37-9-113(2).

¶ 6. The Harrison County Chancery Court held a hearing on April 21, 2011. At the hearing, the chancellor heard oral arguments from Necaise on the HCSB’s motion to dismiss. Payne, Breland’s attorney, informed the court that he had not received the HCSB’s motion to dismiss, and having no notice of the pending motion, he requested time after April 21, 2011, to respond to the motion. The chancellor noted that Breland failed to file a bond as statutorily required and that the appeal was filed more than twenty days from receipt of the HCSB’s decision, but he allowed Breland’s request for a continuance. The chancellor gave Breland “until Friday next week at 5:00 to file some kind of response to it.” The chancellor also added that he was inclined to grant the motion to dismiss “on my own motion,” but gave Breland the additional time to respond.

¶ 7. On May 2, 2011, Breland filed a response to the motion to dismiss, in which she contended that she timely and properly perfected her appeal. In her response, Breland stated:

A review of the [c]alendar and following the requirements of [Mississippi Rule of Civil Procedure] 6(e)[,] the [p]laintiffs appeal was timely filed. The [d]efen-dant’s notification came by mail and was dated December 16, 2010. Pursuant to [Rule] 6(e)[,] when a notification is served by mail[,] three days must be added to the computation.... The date the letter is sent is not counted in the computation!;] therefore!,] the twenty day time period begins on December 17, 2010. Counting from December 17, including intermittent weekend days[,] would mark the 20th consecutive calendar day on January 5th, 2011. Once the three days are added pursuant to [Rule] 6(e)[,] the deadline for filing is extended to January 8th, 2011. Since January 8th, 2011[,] falls on a SaturdayU the Rule extends the filing deadline to the next business day which would have been January 10, 2011.... The appeal notice was mailed on January 7, 2011[,] and was received and stamp filed on January 10, 2011. The appeal notice arrived on the twentieth day and was not, untimely, as alleged in [djefendant’s motion.

Breland also claimed that the filing of the $200 bond could be accomplished at a “later date.”

¶ 8. On May 23, 2011, the chancellor entered an order granting the HCSB’s motion to dismiss Breland’s appeal. The chancellor found that the chancery court lacked jurisdiction because the appeal was not timely filed and Breland failed to file the bond in the time and manner required. Breland now appeals.

STANDARD OF REVIEW

¶ 9. When reviewing a trial court’s grant or denial of a motion to dismiss, this Court employs a de novo standard of review. Farmer v. State of Miss. Dep’t of Pub. Safety, 907 So.2d 981, 984 (¶ 8) (Miss.Ct.App.2005) (citing Spencer v. State, 880 So.2d 1044, 1045 (¶ 6) (Miss.2004)). Further, jurisdictional matters are reviewed de novo. R.A.S. Jr. v. S.S., 66 So.3d 1257, 1259 (¶ 10) (Miss.Ct.App.2011) (citing Calvert v. Griggs, 992 So.2d 627, 631 (¶ 9) (Miss.2008)).

DISCUSSION

Whether Breland Failed to Perfect her Appeal by Not Complying with the Timely Filing and Bond Requirements of Mississippi Code Annotated section 37-9-113(2).

¶ 10. Breland argues that the chancery court erred in granting the HCSB’s motion to dismiss. Breland claims that she filed her notice of appeal within the time period prescribed by statutory law, when considered in conjunction with the applicable rules of procedure, and that her failure to file the very minimal $200 bond was a minor procedural deficiency. Additionally, Breland asserts that the HCSB’s motion to dismiss was untimely filed and was not properly noticed for hearing. Breland also claims that the motion to dismiss was granted based on unsupported and unsworn statements by the HCSB’s attorney. She claims there was insufficient evidence to prove that she received notice by facsimile at the office of her attorney or notice via U.S. mail. Finally, Breland argues that the HCSB failed to provide her with prior notice of the hearing on the motion to dismiss, and she had no opportunity to provide any verbal response to the extensive arguments before the court by the HCSB prior to dismissal of the appeal without a hearing.

¶ 11. After reviewing the record, we find that Breland failed to timely file and perfect her appeal according to the statutory requirements of section 37-9-113(2). Section 37-9-113(2) clearly states:

(1) Any employee aggrieved by a final decision of the school board is entitled to judicial review thereof, as hereinafter provided.
(2) An appeal may be taken by such employee to the chancery court of the judicial district in which the school district is located, by filing a petition with the clerk of that court and executing and filing bond payable to the school board with sufficient sureties, in the penalty of not less than two hundred dollars ($200.00), conditioned upon the payment of all of the costs of appeal, within twenty (20) days of the receipt of the final decision of the board.

(Emphasis added). While Breland attempts to find an extra three days and a safe harbor under Rule 6 of the Mississippi Rules of Civil Procedure for perfecting her appeal, we find that the Mississippi Supreme Court has repeatedly held that the timely filing of an appeal is jurisdictional. See Calvert, 992 So.2d at 631 (¶ 9) (“A timely-filed notice of appeal is a jurisdictional prerequisite to invoking [the appellate court’s] review[.]”); In re Estate of Ware, 573 So.2d 773, 774 (Miss.1990) (recognizing that the time for perfecting an appeal is mandatory and jurisdictional). Further, we recognize that the Mississippi Rules of Civil Procedure do not apply to appeals from administrative agencies, “but only to original actions that are ‘commenced by filing a complaint[.]”’ 5K Farms, Inc. v. Miss. Dept. of Revenue, 94 So.3d 221, 228 (¶ 24) (Miss.2012) (quoting M.R.C.P. 3(a)); see also Brown v. Miss. Dep’t of Employment Sec., 29 So.3d 766, 770 (¶ 11) (Miss.2010) (“[Because [the Mississippi Employment Security Commission] is not a circuit, chancery, or county court, ‘the Mississippi Rules of Civil Procedure are not applicable to its administrative hearings or appeals.’ ”) (citation omitted); Hodgins v. Philadelphia Pub. Sch. Dist., 966 So.2d 1279, 1281 (¶ 6) (Miss.Ct.App.2007) (recognizing the school board as an administrative agency). As stated above, section 37-9-113(2) unambiguously requires filing a petition within twenty days of the receipt of the final decision of the Board. As such, Breland’s failure to file her notice of appeal within twenty days of the receipt of the decision of the HCSB in accordance with the statute deprived the chancery court of jurisdiction.

¶ 12. Furthermore, regardless of Bre-land’s claim that she filed her notice of appeal within the period of time prescribed by statutory law when considered in conjunction with the applicable rules of civil procedure, we find that the chancery court is still without jurisdiction since Breland failed to file a bond of $200 within twenty days of the receipt of the final decision of the HCSB, as statutorily required. See Miss.Code Ann. § 37-9-113(2). Far from being a “minor procedural deficiency” as Breland claims, Breland’s failure to file a timely bond is jurisdictional and is fatal to her appeal. “This Court repeatedly has held that statutory appeal bonds are jurisdictional — that is, they relate to a court’s appellate jurisdiction.” 5K Farms, 94 So.3d at 227 (¶ 23); see also Jackson State Univ. v. Upsilon Chapter of Omega Psi Phi Fraternity, Inc., 952 So.2d 184, 186 (¶ 5) (Miss.2007) (finding that because plaintiff “fail[ed] to file a petition for writ of certiorari and to post a bond with security [in accordance with statute], the circuit court did not have jurisdiction.... ”); Miss. State Pers. Bd. v. Armstrong, 454 So.2d 912, 915 (Miss.1984) (noting that the supreme court “has repeatedly held that statutory bond requirements are jurisdictional.”).

¶ 13. Finally, we find that Breland can claim no prejudice from the timing of the HCSB’s motion to dismiss since the chancellor allowed her additional time to respond to the motion. Breland took advantage of the additional time granted and indeed filed a response to the motion to dismiss on May 2, 2011, prior to the chancery court’s order of dismissal.

¶ 14. Based on the foregoing, we affirm the Harrison County Chancery Court’s grant of the HCSB’s motion to dismiss.

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

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

      . We have consolidated Breland’s two issues into a single one for the purposes of our analysis.

      . Specifically, Necaise's letter stated that "[t]he Harrison County School Board has voted to uphold the recommendation of the [sic] Henry Arledge, Superintendent of Education, to [not][r]enew Melinda Breland for the 2010-2011 school year.”

      . Breland alleges that the HCSB filed its motion to dismiss on April 15, 2011, only six days before the date the chancery court was scheduled to hear the arguments on the merits of her appeal. Breland further asserts that the motion was not sent that day by facsimile transmission to her attorney; instead, the motion to dismiss was sent by mail but was never received. Breland claims that because the motion was sent by mail, three days were added to the time required for service of the motion to dismiss before the chancery court could properly hear the motion. Additionally, Breland alleges that the motion to dismiss was never noticed for hearing as required.

      . Breland claims that her notification came by mail and was dated December 16, 2010. Pursuant to Rule 6(e), Breland argues that the twenty-day period began on December 17, 2010, and the twentieth day fell on Wednesday, January 5, 2011. Breland then contends that she was entitled to another three days under Rule 6(e) because the notification was served by mail, which extended the deadline to January 8, 2011. Since January 8, 2011 fell on a Saturday, Breland asserts that the filing deadline was Monday, January 10, 2011, the next business day. Breland alleges that her notice of appeal was mailed on January 7, 2011, and was received for filing on January 10, 2011.

      . "The pretrial bond requirement derived from Mississippi Code Sections 27-77-5 and 27-77-7 (Rev.2005) is a requirement governing appellate jurisdiction rather than a procedural requirement.” 5K Farms, 94 So.3d at 229.