author: CARLSON, Presiding Justice, KITCHENS, Justice,

text:
    Gary Allen GLIDDEN v. STATE of Mississippi.
    No. 2009-CT-01061-SCT.
    Supreme Court of Mississippi.
    Oct. 6, 2011.
    Rehearing Denied Dec. 1, 2011.

      Office of Indigent Appeals by Leslie S. Lee, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   ON WRIT OF CERTIORARI

CARLSON, Presiding Justice,

for the Court:

¶ 1. Gary Allen Glidden was convicted of one count of possession of a controlled substance as defined by Mississippi Code Section 41-29-139(c) (Rev.2009). The Circuit Court for the First Judicial District of Harrison County, Judge Roger T. Clark presiding, sentenced Glidden to serve a term of four years in the custody of the Mississippi Department of Corrections. Judge Clark also sentenced Glidden to serve his imprisonment as an habitual offender under the provisions of Mississippi Code Section 99-19-81 (Rev.2007). After the trial court entered an order denying Glidden’s motion for a judgment notwithstanding the verdict, or in the alternative, for a new trial, Glidden perfected his appeal to us, and we assigned this case to the Court of Appeals. After consideration, the Court of Appeals affirmed the trial-court judgment. Glidden v. State, 74 So.3d 353 (Miss.Ct.App.2010). We granted Glidden’s petition for writ of certiorari. Glidden v. State, 58 So.3d 693 (Miss.2011). Finding that no reversible error occurred at trial, we affirm the judgment of the Court of Appeals, which affirmed the judgment of conviction and sentence of the Circuit Court for the First Judicial District of Harrison County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. We set out here the facts relevant to today’s discussion. Some of the facts are gleaned from the opinion of the Court of Appeals. Glidden, 74 So.3d 353, 354-55, ¶¶ 2-3. We will include additional facts found in the record as warranted by our discussion.

¶ 3. On September 18, 2006, Gary Glid-den was installing an air conditioner in the home of Joseph Buckner. While he was working, Glidden received an emergency service call from a customer located a few blocks away. Glidden had no transportation, and Buckner allowed Glidden to borrow his pickup truck to respond to the service call.

¶ 4. The route Glidden traveled on his return to Buckner’s house caused him to come in contact with Sergeant Greg Goodman and Detective Steve Compston, both of the Gulfport Police Department, who were conducting traffic stops in the City of Gulfport. Sergeant Goodman noticed a truck turning without using a turn signal. Detective Compston pulled the truck over to the side of the road. As the policemen exited their car, the driver of the truck (later identified as Glidden) exited the truck and walked to the rear of the truck. Sergeant Goodman walked to the passenger-side door and peered in the window to check for any other occupant. Sergeant Goodman immediately saw a large, clear, plastic bag on the driver’s-side floorboard containing what Sergeant Goodman believed was marihuana. Sergeant Goodman testified that “not even an inch” of the bag was under the driver’s seat, and the bag was in plain view. Detective Compston arrested Glidden. Both Sergeant Goodman and Detective Compston testified that they neither moved nor touched the plastic bag until after it was photographed. The bag was tested at the local crime laboratory. A forensic analyst from the Mississippi Crime Laboratory testified that the bag contained 450 grams of marihuana. No other drug paraphernalia was found on Glidden or in the truck. In his testimony, Compston confirmed that he had called in the tag number of the truck and that it was registered to Joseph Buckner.

¶ 5. At trial, Glidden testified that he had borrowed Buckner’s truck, that he had possession of the truck for only thirty minutes, and that the bag of marihuana was not on the floorboard while he was driving. He stated that, had the bag of marihuana been under his feet, he physically would not have been able to drive. According to Glidden, he knew Buckner only as his customer from the air-conditioning business and would never have gotten into the truck if he had known drugs were in the vehicle. Throughout his testimony, Glidden maintained that he was completely unaware that drugs were in the pickup and that they must have been hidden under the seat and must have slid out when he applied the brakes upon being stopped by the police officers.

¶ 6. After the presentation of all the evidence, the reading of the instructions to the jury, and counsel’s closing arguments, the jury retired to deliberate, returning in due course with its verdict of guilty as charged. Judge Clark entered a judgment consistent with the verdict. At a subsequent sentencing hearing, Judge Clark sentenced Glidden to serve a term of four years imprisonment in the custody of the Mississippi Department of Corrections as a habitual offender under Mississippi Code Section 99-19-81 (Rev.2007). Upon Glid-den’s filing of the customary post-trial motions, Judge Clark entered an order denying these post-trial motions, and Glidden perfected his appeal. This Court assigned Glidden’s case to the Court of Appeals.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 7. Before the Court of Appeals, Glid-den raised the following three issues, which we have restated for the sake of today’s discussion: Whether the trial court erred (1) in denying the motion for a judgment notwithstanding the verdict due to the insufficiency of the evidence to support the conviction, (2) in denying his proffered circumstantial-evidence instructions, and (3) in excluding evidence concerning a pending drug indictment against the owner of the truck Glidden was driving on the day of his arrest, thus depriving Glidden of the opportunity to present one of his defenses to the indictment. Glidden, 74 So.3d at 355-56, ¶¶ 4-9.

¶ 8. A unanimous Court of Appeals found no merit in Glidderis arguments. After the Court of Appeals denied Glid-deris motion for rehearing, Glidden filed a petition for writ of certiorari, asking us to consider the same three issues which had been considered by the Court of Appeals. We granted certiorari. Glidden v. State, 58 So.3d 693 (Miss.2011).

DISCUSSION

¶ 9. In granting certiorari, we have the authority to “limit the question on review.” Miss. R.App. P. 17(h). Brown v. State, 39 So.3d 890, 895 (Miss.2010) (citing Brown v. State, 986 So.2d 270, 272 n. 1 (Miss.2008); Dora v. State, 986 So.2d 917, 921 n. 8 (Miss.2008)). As will be noted, based on an evenly divided Court in today’s case, our main concern in granting certiorari was whether the evidence presented at trial was legally sufficient to support the verdict finding Glidden guilty of the crime of possession of a controlled substance. A plurality of this Court finds the evidence was legally sufficient to support the verdict.

¶ 10. Before proceeding with our discussion on the main issue before us, we note briefly that, as to Glidderis remaining issues, we find the Court of Appeals very ably discussed these issues, correctly applying the law to the facts as revealed in the record. Accordingly, we adopt the Court of Appeals’ analyses on Issues II and III, and we find these issues to be without merit. Glidden, 74 So.3d at 355-56, ¶¶ 6-9.

WHETHER THE TRIAL COURT ERRED IN DENYING GLIDDEN’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT DUE TO THE LEGAL INSUFFICIENCY OF THE EVIDENCE.

¶ 11. Thus, the issue we now discuss is whether, in this constructive-possession drug case, the evidence was legally sufficient to support the verdict. The dissent concludes that the evidence showed only that Glidden was in the vicinity of the nearly one pound of marihuana in the pick-up truck he was driving, and nothing else. In other words, the dissent opines that there was “no independent incriminating evidence” to establish that Glidden constructively possessed the large, clear, plastic bag containing nearly one pound of marihuana found on the floorboard, almost completely exposed directly under the driver’s seat of the truck. We respectfully disagree.

¶ 12. In today’s case, the State was burdened with proving beyond a reasonable doubt that Glidden knowingly, willfully, unlawfully, and feloniously possessed the subject marihuana. When, as here, a defendant does not physically possess the illegal drugs, the State must prove constructive possession of the drugs in order to prevail. We recently stated:

To support a conviction for possession of a controlled substance, “there must be sufficient facts to warrant a finding that [the] defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Wall v. State, 718 So.2d 1107, 1111 (Miss.1998) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)).

McClellan v. State, 34 So.3d 548, 553 (Miss.2010).

¶ 13. Juries are not required to view these cases in a vacuum. The jurors are not required to hang their common sense on the coat-rack as they enter the courtroom for jury sendee. As is done on multiple occasions daily in the trial courts of our state, Judge Clark in today’s case appropriately instructed the jury on its solemn responsibilities in the case of State of Mississippi v. Gary Allen Glidden. Here are but a few examples of Judge Clark’s instructions to the jury:

As sole judges of the facts in this case, your exclusive province is to determine what weight and what credibility will be assigned the testimony and supporting evidence of each witness in this case. You are required and expected to use your good common sense and sound honest judgment in considering and weighing the testimony of each witness who has testified in this case.
The evidence which you are to consider consists of the testimony and statements of the witnesses and the exhibits offered and received. You are also permitted to draw such reasonable inferences from the evidence as seem justified in the light of your own experience.

(Jury Instruction C — 1) (emphasis added). The jury also was instructed that the burden was on the State to prove beyond a reasonable doubt that, inter alia, Glidden “did knowingly, wilfully, unlawfully and fe-loniously possess 250 grams or more but less than 500 grams of Marijuana.” (Jury Instruction S-1B.) The Court also gave Instruction S-2, which stated:

The Court instructs the Jury that to constitute possession as applied to this case, it is not necessary that the State prove actual physical possession; it is sufficient if the State establishes that the substance involved was subject to the defendant’s dominion and control, and that he was aware or reasonably should have been aware of its presence and character.

Finally, Judge Clark also granted Glid-den’s proposed Instruction D-7, which stated:

The Court instructs the jury that a reasonable doubt may arise from the whole of the evidence, the conflict of the evidence, the lack of evidence, or the insufficiency of the evidence but, however it arises, if it arises, it is your sworn duty to find the defendant “not guilty.”

¶ 14. Once the State rested its case-in-chief, Judge Clark granted Glidden’s motion for a directed verdict on the issue of possession with intent to sell or distribute, over the vigorous objection of the State, and the case went forward solely on the issue of simple possession. During his case-in-chief, Glidden, over objection of the State, was able to get before the jury, via the testimony of Deputy Circuit Clerk Paula Olson, that a man named Joseph Buckner had nine prior convictions for sale of a controlled substance. Over the objection of the State, the trial judge allowed nine certified copies of the sentencing orders to be received into evidence as defendant’s collective exhibit number one. Thus, Glidden was able to argue his theory to the jury that the 450 grams of marihuana found in Buckner’s pickup truck that Glidden claimed to have borrowed belonged to a nine-time convicted drug dealer, Joseph Buckner.

¶ 15. Glidden was proven to be an habitual offender under Mississippi Code Section 99-19-81 (Rev.2007); and under Mississippi Code Section 41-29-189(c)(2)(D) (Rev.2009), Glidden was facing the possibility of an eight-year sentence without parole. Instead, Judge Clark, in essence, applied the proportionality test as sanctioned by this Court in Clowers v. State, 522 So.2d 762, 765 (Miss.1988), and sentenced Glidden to a term of four years in the custody of the Mississippi Department of Corrections without the benefit of parole or probation.

¶ 16. Judge Clark fulfilled his solemn responsibility to afford Glidden the constitutionally fair trial to which he was entitled. The jury had before it Glidden’s theory that the 450 grams of marihuana were not his, but Buckner’s, someone who had multiple convictions for the sale of drugs. Also, due to Judge Clark’s partial grant of Glidden’s motion for a directed verdict, Glidden’s exposure was dramatically reduced from the possibility of a thirty-year sentence as an habitual offender, to a possible maximum sentence of eight years, and yet he received only a four-year sentence.

¶ 17. Additionally, if one “reads between the lines” as to what Glidden and his lawyer were saying before the jury, one reasonably could infer that Glidden was insinuating that police officers either had planted the marihuana in the pickup truck, or at the very least, had manipulated the location of the marihuana in the pickup before photographing the bag of marihuana in the pickup after Glidden had exited his vehicle to meet Detective Comp-ston at the rear of the pickup. On direct examination, when describing the scene where he was stopped by the police, Glid-den stated:

And it wasn’t like that when I was driving the truck. It’s a very little truck. My feet won’t even fit in there. I would be stepping all over that. I don’t know if it came out when I hit the brakes. It might have come out then, but I did see one of the officers on the passenger side with a bag of pot, and there were six more police cars there, and they were passing it around. It got back in the truck. That’s the only way. If I would have saw something like that, I would have never got in the truck, point blank. But it was not like that.

During closing arguments, defense counsel stated to the jury:

How many time[s] have you been driving down the street and saw someone pulled over on the side and saw one car? How many times? Just on a traffic? There is usually two, sometimes three, sometimes more than that. One unmarked car, and they have got a pound of marijuana and you think these two officers are the only ones there.
It’s not a rabbit hole. It’s what we don’t know. We don’t know what other officers were present. We don’t know what other officers were doing. He says he took the photograph, but did he have the camera on him or did he walk back to the patrol car to get it, and what happened during that period of time. This is not as simple as the state would have you think.

¶ 18. Sergeant Goodman testified that, once the stop of the pickup truck had been accomplished, he and Detective Compston had exited their vehicle, and Glidden had exited the pickup from the driver’s side, meeting Compston at the rear of the pickup. Goodman continued to the passenger side of the truck, which Glidden had parked on the left-hand side of the street. There was no one else in the pickup. Both the passenger-door window and the driver’s-side-door window were down. Sergeant Goodman had a clear view of the interior of the pickup by simply standing outside the passenger door and looking inside. Sergeant Goodman immediately noticed a zip-lock bag containing what he believed to be marihuana on the driver’s-side floorboard. Goodman testified that “not even an inch of [the bag] was under the driver’s seat,” meaning that most of the bag of marihuana was in plain view. Two photographs entered into evidence clearly depict the large bag of marihuana on the floorboard of the pickup, and Sergeant Goodman testified the photographs were taken prior to the bag of marihuana being moved.

¶ 19. Detective Compston, who was accepted without objection as an expert in the field of narcotics investigation, also saw the bag of marihuana in the pickup. Compston actually took the photographs entered into evidence. During the recross examination of Compston by defense counsel, Compston testified that the zip-lock bag was not fingerprinted because “[i]n my experience we have had very poor results receiving fingerprints off of a texture like this.” Compston clarified that the texture to which he was referring was a plastic bag, such as the zip-lock bag containing the marihuana. Notwithstanding this testimony concerning the difficulty in lifting identifiable fingerprints off plastic, defense counsel stated during closing arguments:

Couple other things I thought curious. Why didn’t they try and take fingerprints off this. It’s a heavy plastic bag. Everything we’ve learned about forensic is I just left my DNA all over that thing. They can do wonders now. Why is it they didn’t do it? Because the only print they were going to find on there were police officers. Isn’t that a possibility?

¶ 20. This Court once again had the occasion to address constructive possession in Hudson v. State, 30 So.3d 1199, 1203-04 (Miss.2010). In Hudson, we stated:

In other words, “[t]he law states that actual possession is not needed, that constructive possession will do.” Smith v. State, 839 So.2d 489, 497 (Miss.2003). Nevertheless, the “awareness” and “conscious intent to possess” elements apply to both actual and constructive possession. The only difference is that, with actual possession, the drug is actually found on the defendant’s person (ie., in his hands, mouth, pockets, etc.), whereas, with constructive possession, the drug is simply found “near” the defendant’s person in a place over which the defendant exercises dominion or control. Thus, “[t]he State ha[s] to prove that [the defendant] was aware of the cocaine and intentionally, but not necessarily physically, possessed it.” Id. “[T]o test whether the prosecution met this standard of proof in individual eases[,] each case must be viewed in light of its individual facts and circumstances[.]”

Hudson, 30 So.3d at 1203-04 (citations omitted) (emphasis in original).

¶ 21. As already mentioned, in deliberating on its verdict, the jury had every right to apply common sense, common experience, and sound honest judgment in considering and weighing the testimony of the witnesses and the exhibits received into evidence. Unlike this Court, the jury had the opportunity, not only to hear Glid-den’s testimony, but also to observe Glid-den’s demeanor. In appropriately applying the jury instructions given by the trial judge to the evidence in today’s case, the jury was more than justified in finding Glidden guilty of possession of marihuana. We state again, for the sake of emphasis, that the jury was properly instructed by the trial judge, inter alia, that the jury’s “exclusive province” was to decide the weight and credibility to be assigned to the testimony of each witness. The jurors were informed that they were “required and expected” to use their “good common sense and sound honest judgment” in weighing the testimony of the witnesses who testified in the case. Finally, and most importantly, the jury was informed that it was “permitted to draw such reasonable inferences from the evidence as seem justified in light of your own experience.” (Emphasis added.) The jury had every right to consider all the evidence and conclude that Glidden was not telling the truth when he testified he had no idea the marihuana was in the truck he had been driving for thirty minutes.

¶ 22. In Dilworth v. State, 909 So.2d 731, 736 (Miss.2005), this Court once again reiterated the familiar test for appellate review of a criminal conviction when assailed on a claim of insufficient evidence to support the verdict:

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 [jurors] 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 [, i.e. reverse and discharge]. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984); see also Dycus v. State, 875 So.2d 140, 164 (Miss.2004)). However, if a review of the evidence reveals that it is of such quality and weight that, ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient.

Dilworth, 909 So.2d at 736 (quoting Bush v. State, 895 So.2d 836, 843 (Miss.2005)). See also Hudson, 30 So.3d at 1203.

¶23. This was a classic jury case— Glidden’s testimony versus the State’s testimony and supporting evidence, i.e., the photographs of the bag of marihuana in the location where police officers testified the marihuana was found at the time they stopped the truck Glidden was driving. Unfortunately for Glidden, the jury resolved these issues adversely to him. But the jury verdict was supported by legally sufficient evidence such that, based on our standard of review, it is beyond the power and authority of this Court to disturb on appeal.

CONCLUSION

¶24. Based on today’s discussion, the judgment of the Court of Appeals, which affirmed the Harrison County Circuit Court’s judgment of conviction for possession of a controlled substance and sentence of four years as an habitual offender in the custody of the Mississippi Department of Corrections, is affirmed.

¶ 25. CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF FOUR (4) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AS A HABITUAL OFFENDER, WITHOUT THE ELIGIBILITY FOR PAROLE OR PROBATION, AFFIRMED.

RANDOLPH, LAMAR AND PIERCE, JJ„ CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., DICKINSON, P.J., AND CHANDLER, J. KING, J., NOT PARTICIPATING.

KITCHENS, Justice,

dissenting:

¶26. As a matter of law, proximity alone is insufficient to show constructive possession, without additional incriminating circumstances. Curry v. State, 249 So.2d 414, 416 (Miss.1971). Because the plurality’s conclusion is inconsistent with this well-settled principle, I respectfully dissent.

¶ 27. There is no dispute that, because Glidden did not physically possess the marihuana, he was tried and convicted under a theory of constructive possession. Where, as here, the contraband is found in a place not owned by the accused, physical proximity alone is insufficient, as a matter of law, to sustain a finding of constructive possession. Cunningham v. State, 583 So.2d 960, 962 (Miss.1991). “Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.” Curry, 249 So.2d at 416. The State must put forth sufficient evidence to prove that the defendant exercised dominion and control over the contraband. Jackson v. State, 689 So.2d 760, 767 (Miss.1997) (citations omitted). If the State cannot provide evidence, in addition to proximity, that connects the defendant to the contraband, the accused is entitled to acquittal. Cunningham, 583 So.2d at 962 (citations omitted).

¶ 28. The Court of Appeals recognized that the mere presence of the marihuana in the vehicle was not sufficient to sustain Glidden’s conviction, but found that the requirement for additional evidence was satisfied by the testimony presented at trial. Glidden, 74 So.3d at 355. In reaching its decision, the Court of Appeals reasoned:

Glidden had been driving the truck for approximately thirty minutes with a large bag of marijuana directly under his feet. According to the testimony of both Detective Compston and Sergeant Goodman, the clear plastic bag was on the driver’s side floorboard and was immediately visible through the truck window. Glidden admitted that the truck was small and that a bag that large would have been easily seen by him. From the evidence presented, reasonable jurors could have concluded that Glidden was guilty of possession of a controlled substance.

Id. In other words, the appeals court surmised that there was sufficient evidence that Glidden must have seen the bag of marihuana on the floorboard despite his repeated insistence that he had not seen the drug while he was driving the truck, and that it may have come from under the seat when he applied the brakes.

¶ 29. This, however, cannot provide sufficient evidence of “other incriminating circumstances.” Curry, 249 So.2d at 416. Even if we could ascertain from the record precisely where the drug was located while Glidden was driving the truck, or whether he should have noticed the plastic bag, there still would be a lack of evidence to support Glidden’s conviction. As this Court stated in Ferrell v. State, 649 So.2d 831, 835 (Miss.1995), “the State must show additional circumstances which are actually incriminating in order to establish constructive possession.” “There must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Curry, 249 So.2d at 416.

¶ 30. The plurality reasons that “[t]he jury had every right to consider all the evidence and conclude that Glidden was not telling the truth when he testified he had no idea the marihuana was in the truck he had been driving for thirty minutes.” Plur. Op. at ¶ 21. Thus, the opinion ascribes significance to whether Glid-den was able to see the marihuana in the borrowed vehicle and concludes that he must have noticed it. But what if he did? It is not illegal to see contraband, or even to be in close proximity to it. To observe an illegal commodity is not to possess it, in the absence of evidence that the observer did more than merely look at the contraband; there must be some articulable indi-cia of ownership and/or control. Here there is no such evidence, save and except the plurality’s suspicion, which apparently is born of its “common sense” analysis of nonexistent proof that Glidden criminally possessed the marihuana in Buckner’s pickup. It simply is not against the law for one person to look at an illegal item that is in another person’s truck; and even if he lies about whether he saw it, his falsehood provides no evidence of criminal possession. In sum, it just does not matter whether Glidden was aware of the marihuana’s presence before it was discovered by the arresting officers.

¶ 31. In Ferrell, the defendant was pulled over while operating a vehicle that he did not own, but of which he had been in possession for fifteen hours. Id. Ferrell was convicted under the theory of constructive possession after cocaine was found in a matchbox located next to the driver’s seat. Id. On appeal, this Court reversed Ferrell’s conviction and sentence, holding that “[t]he circumstances in this case in no way appear incriminating. No drug paraphernalia was found in the car, Ferrell was not on drugs at the time he was arrested, and his fingerprints were not found on the matchbox.” Id. Further, “Ferrell’s possession of the car for a mere fifteen hours does not qualify as an incriminating circumstance.” Id.

¶ 32. More recently, in Blissett v. State, 754 So.2d 1242, 1244 (Miss.2000), this Court upheld a finding of constructive possession where the evidence, in addition to proximity, strongly supported an inference that the accused was both aware of the presence of the marihuana in the vehicle and intentionally in possession of it. In Blissett, the defendant was convicted of possession after a large amount of marihuana was found in the rental car he was driving. Id. at 1243. On appeal, the Court held that the finding of constructive possession was justified, stating that “the arresting officer ... testified to smelling a strong, overpowering odor of unburned marijuana as he approached the vehicle and that air fresheners were scattered throughout the vehicle.” Id. at 1244. The Court also found that “Blissett’s nervous demeanor at the time of the stop was inconsistent with a lack of knowledge of marijuana in the car.” Id. '

¶ 33. The kinds of incriminating circumstances that warranted a finding of constructive possession in Blissett are absent in the case at hand. Id. at 1243. Unlike Blissett, there was nothing, such as an odor, to alert Glidden to the presence of the marihuana in the truck. In this case, unlike Blissett, it is completely plausible that Glidden had driven the truck for a short time without any indication that the drug was in the vehicle. Also, unlike Blis-sett, there was no testimony that Glidden had acted in any way that was inconsistent with his assertion that he was unaware the marihuana was in the vehicle. Id. At trial, Glidden consistently maintained that he never saw the ziplock bag. In fact, he insisted that, had it been in the position in which the officers recalled seeing it in the stopped vehicle, he could not have driven the truck.

¶ 34. The facts of this case are analogous to those in Ferrell, 649 So.2d at 835, as the only incriminating evidence established at trial was that Glidden was in the vicinity of the marihuana. Here, as in Ferrell, the State presented no independent incriminating evidence. No drug paraphernalia was found in the pickup or on Glidden’s person, and there was no indication from his behavior that he was on drugs. The truck belonged to a customer of Glidden, and he had possession of it for about thirty minutes while he was making an emergency service call that he had not expected to occur.

¶ 35. As a matter of law, constructive possession is not established where “the only evidence connecting the defendant to the controlled substance was his presence in the car where the substance was found.” Dixon v. State, 953 So.2d 1108, 1115 (Miss.2007) (citing Jones v. State, 693 So.2d 375, 377 (Miss.1997)). Should the plurality’s contrary holding attain force-of-law status in future cases, borrowing a vehicle will become a very risky enterprise in the State of Mississippi.

¶ 36. While the plurality opinion recognizes that Glidden was convicted under a theory of constructive possession, it stops short of analyzing our well-established law on that issue and fails to point to additional incriminating evidence that might support a conviction. However, the plurality quotes Instruction S-2, which informed the jury that constructive possession could be established if the defendant “should have been aware” of the drug’s presence and character. This suggests that we are crafting a new legal standard, because, notwithstanding the defendant’s lack of objection, Instruction S-2 is not a correct statement of applicable law. See Miss. Model Jury Instructions: Criminal § 3:21 (2010) (“A person has constructive possession when he or she lacks actual possession of the thing or object but knowingly has both the power and the intention, at a given time, to exercise control or dominion over the thing or object, either directly or through another person.”). What a defendant should have known may be sufficient knowledge for civil liability; but this Court has never held that it is sufficient to prove a defendant guilty of drug possession. See e.g., Hyundai v. Applewhite, 53 So.3d 749, 759 (Miss.2011) (“To support a defective design claim, the plaintiff must prove that ... ‘[t]he manufacturer or seller knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought ....’”) (emphasis added) (quoting Miss.Code Ann. § 11 — 1—63(f)(i) (Rev. 2002)).

¶ 37. In cases where contraband is found on premises not owned by the defendant, the State cannot meet its burden of proof by relying on proximity alone. Dixon, 953 So.2d at 1111. The mere presence of the marihuana in the truck, absent “other incriminating circumstances,” is insufficient to sustain Glidden’s conviction. Because there is no additional evidence in the record to support a finding of constructive possession, and the plurality cites none, we should reverse both the Court of Appeals and the Circuit Court of the First Judicial District of Harrison County and render judgment in favor of Glidden.

WALLER, C.J., DICKINSON, P.J., AND CHANDLER, J„ JOIN THIS OPINION.

      . Of course, when the jury commenced its deliberations, the members of the jury had their recall of the testimony, the exhibits offered and received into evidence (including the photographs of the bag of marihuana as found on the driver’s side floorboard of the truck, according to the testimony of the police officers who conducted the stop of Glidden on the day in question), and the written jury instructions given by the trial judge.

      . One pound contains 454 grams. This large bag contained an amount of marihuana just four grams shy of one pound.

        .See Mississippi Code Section 41-29-139(c)(2)(D) (Rev.2009). Timothy Gross, a forensic scientist with the Mississippi Crime Laboratory (Gulfport Regional Laboratory), testified that the substance in the evidence bag presented to him for testing (which was shown by independent evidence to be the bag recovered from the truck Glidden was driving) was in fact marihuana, weighing 450.0 grams.

      . Defense counsel had no objection to this instruction.

      . Olson admitted that she did not know whether Joseph Buckner, who had been convicted in Harrison County Circuit Court for these drug sales, was the same Joseph Buckner who owned the pickup truck being driven by Glidden on the day he was stopped by law enforcement officials.

      .Before trial, the State had moved to exclude evidence of Buckner's prior convictions, but the trial judge had denied the State’s motion.

      . Glidden's prior convictions consisted of burglary of a building for theft (two separate convictions), possession of Lysergic Acid Diethylamide (LSD), and felony escape.

      . See Miss.Code Ann. § 41 — 29—139(b)( 1) (Rev. 2009).


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Gary Allen GLIDDEN, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01061-COA.
    Court of Appeals of Mississippi.
    Sept. 21, 2010.
    Rehearing Denied Jan. 25, 2011.

      Leslie S. Lee, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., ISHEE and MAXWELL, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. A jury in the Harrison County Circuit Court found Gary Allen Glidden guilty of possession of a controlled ■ substance. Glidden was sentenced as a habitual offender to serve four years in the custody of the Mississippi Department of Corrections. Glidden subsequently filed post-trial motions, which the trial court denied. Glidden now appeals, asserting the following issues: (1) the evidence was insufficient to support the verdict; (2) the trial court erred in failing to grant a circumstantial-evidence instruction; and (3) the trial court erred in excluding evidence of a pending drug indictment against the owner of the truck. Finding no error, we affirm.

FACTS

¶ 2. On September 18, 2006, at approximately 5:00 p.m., Sergeant Greg Goodman and Detective Steve Compston, both of the Gulfport Police Department, were conducting traffic stops in Gulfport, Mississippi. Sergeant Goodman noticed a truck turning without using a turn signal. Detective Compston pulled the truck over to the side of the road. As the policemen exited their car, the driver of the truck exited the truck and walked to the rear of the truck. Sergeant Goodman walked to the passenger-side door and peered in the window to check for any other occupant. Sergeant Goodman immediately saw a large plastic bag on the driver’s side floorboard containing what Sergeant Goodman believed was marijuana. Sergeant Goodman testified that approximately an inch of the bag was under the driver’s seat, but the bag was in plain view. Detective Compston arrested the driver of the truck. Neither Sergeant Goodman nor Detective Compston moved or touched the plastic bag until after it was photographed. The bag was tested at the local crime laboratory. The bag contained 450 grams of marijuana.

¶ 3. The driver was identified as Glidden. The truck, however, was registered in the name Joseph Buckner. Glidden testified that he had borrowed Buckner’s truck for approximately thirty minutes and did not notice the large plastic bag of marijuana on the driver’s side floorboard.

DISCUSSION

I. INSUFFICIENT EVIDENCE

¶ 4. In his first issue on appeal, Glidden argues that the evidence was legally insufficient to support the verdict. Our standard of review in regard to challenges to the sufficiency of the evidence is well settled. “[T]he 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[.]’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. If we find that reasonable, fair-minded jurors could have concluded that the defendant was guilty of the accused crime, the evidence will be deemed sufficient. Id.

¶ 5. The State was required to prove beyond a reasonable doubt that Glidden feloniously possessed the marijuana. The State was operating under the theory that Glidden had constructive possession of the marijuana. For that, “there must be sufficient facts to warrant a finding that [the] defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Curry v. State, 249 So.2d 414, 416 (Miss.1971). “Constructive possession may be shown by establishing that the drugs involved [were] subject to his dominion or control.” Id. “Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.” Gavin v. State, 785 So.2d 1088, 1093 (¶ 16) (Miss.Ct.App.2001). In Gavin, we stated the following:

Being in a closed area such as a vehicle or a room with contraband does not by itself permit the inference of dominion and control. If the accused is the owner of the premises, or if he is the exclusive user for some extended period of time, or if there are additional incriminating circumstances, then the inferences might be permissible.

Id. at 1094 (¶ 21). The evidence did show that Glidden was not the owner of the truck. However, Glidden had been driving the truck for approximately thirty minutes with a large bag of marijuana directly under his feet. According to the testimony of both Detective Compston and Sergeant Goodman, the clear plastic bag was on the driver’s side floorboard and was immediately visible through the truck window. Glidden admitted that the truck was small and that a bag that large would have been easily seen by him. From the evidence presented, reasonable jurors could have concluded that Glidden was guilty of possession of a controlled substance. This issue lacks merit.

II. CIRCUMSTANTIAL-EVIDENCE INSTRUCTION

¶ 6. In his second issue on appeal, Glidden argues that the trial court erred in refusing to grant two circumstantial-evidence jury instructions. In his brief, Glidden concedes that not all constructive-possession cases require circumstantial-evidence instructions. However, Glidden argues that this was a wholly circumstantial-evidence case.

¶ 7. A circumstantial-evidence instruction is not required unless the State’s case is wholly circumstantial. Arguelles v. State, 867 So.2d 1036, 1042 (¶ 22) (Miss.Ct. App.2003). “The existence of any direct evidence eliminates the need for a circumstantial evidence instruction.” Sullivan v. State, 749 So.2d 983, 992 (¶21) (Miss.1999). The testimonies of both Sergeant Goodman and Detective Compston that they observed the bag of marijuana on the driver’s side floorboard of the truck, which was driven and solely occupied by Glidden at the time of the traffic stop, constituted direct evidence. See Boches v. State, 506 So.2d 254, 260 (Miss.1987). This issue is without merit.

III. EVIDENCE CONCERNING OWNER OF TRUCK

¶ 8. In his final issue on appeal, Glidden argues that the trial court erred in excluding evidence of a pending drug indictment against Buckner, the owner of the truck in question. Glidden’s theory was that Buckner was a known drug dealer, so the marijuana must have belonged to Buckner. Glidden sought to introduce evidence of pending indictments charging Buckner with a drug offense. Glidden noted that the reason he wanted to introduce the indictments was the list of prior drug crimes indicating Buckner’s habitual-offender status. The trial court agreed that Glidden’s counsel could cross-examine the police officers as to whether they knew Buckner had prior drug convictions, but it would not allow Glidden to introduce the pending indictments into evidence. Buckner’s prior drug convictions ranged from 1979 to 1984.

¶ 9. During cross-examination, both Sergeant Goodman and Detective Compston denied having heard of Buckner. Glidden called Paula Olson to the stand to testify regarding Buckner’s prior convictions. Olson was employed by the Harrison County Circuit Court to maintain public court records. Olson identified certified sentencing orders concerning Buckner’s nine prior convictions for sale of a controlled substance. These orders were admitted into evidence. On cross-examination, Olson stated that these nine convictions were old, and she had no knowledge of whether the Buckner named in the orders was the same Buckner who owned the truck in question. After Olson’s testimony, Glid-den attempted to have the two pending indictments introduced into evidence, claiming that the State had opened the door. Finding that Olson had not been asked whether there were more recent charges and that the pending indictments were not convictions, the trial court refused Glidden’s request. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Tate v. State, 912 So.2d 919, 924 (¶ 9) (Miss.2005). We cannot find that the trial court abused its discretion in refusing to admit two pending indictments against Buckner into evidence. This issue is without merit.

¶10. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF FOUR YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: MAXWELL, J,

text:
    J. Irvin BEASLEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00650-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.
    Rehearing Denied June 28, 2011.

      Phillip Broadhead, Oxford, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J,

for the Court:

¶ 1. A jury in the Jackson County Circuit Court found Irvin Beasley guilty of touching a child for lustful purposes and sexual battery of a seven-year-old child. Beasley argues the State impermissibly commented on his initial post-Miranda refusal to speak with investigators prior to his later statement about fondling the young boy. Beasley also contends he suffered prejudice because a jury-panel member, whom the court later struck for cause, allegedly cried in the presence of the veni-re during voir dire.

¶ 2. Finding the references to Beasley’s initial refusal to speak to an investigator did not prejudice him in light of his later inculpatory statement, we find that the circuit court did not err in denying his requests for a mistrial. We also find Beasley fails to show he was prejudiced by the court’s refusal to strike the entire veni-re, given other panel members’ assurances to be fair and impartial. And we reject Beasley’s contention that the verdict was against the sufficiency and weight of the evidence and, therefore, affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. In October 2005, after watching a television program about child molestation, C.J.’s mother asked her then seven-year-old son whether anyone had ever touched him inappropriately. C.J. responded that his uncle, Beasley, had.

¶ 4. Beasley lived in Ocean Springs, Mississippi, with his mother, who is C.J.’s grandmother. C.J. frequently visited his grandmother and occasionally spent the night at her house and slept in Beasley’s room. Beasley sometimes picked C.J. up from school, and according to C.J.’s mother, Beasley was alone with C.J. “quite a bit.”

¶ 5. Ocean Springs Police Officer William Jackson helped execute a search warrant at Beasley’s residence. Officers seized pornographic movies from Beasley’s bedroom. Officer Jackson described one movie as depicting “male-on-male sexual activity.” Beasley was arrested for sexual battery and advised of his Miranda rights. After taking Beasley into custody, Officer Jackson attempted to interview him. He again advised Beasley of his Miranda rights and observed Beasley execute a written waiver. According to Officer Jackson, Beasley never suggested he did not understand his rights.

¶ 6. During cross-examination by Beasley’s attorney, Officer Jackson testified that Beasley did not initially provide a statement. As Officer Jackson put it, “[Beasley] didn’t want to talk. He didn’t say anything.” When the State followed up on redirect, Officer Jackson reiterated that initially Beasley “wouldn’t say anything to me, just gave me a blank stare.”

¶ 7. The next day, Officer Ray Akins obtained an oral statement from Beasley. Officer Akins recorded the interview, which included him reading Beasley his Miranda rights and Beasley acknowledging that he understood those rights. Beasley also agreed that no promises or threats had been made against him, nor was he under any pressure or coercion. In his recorded statement, Beasley admitted touching C.J.’s penis underneath his clothes and that C.J. also touched Beasley’s penis. But Beasley denied that either performed “oral sex” on the other. Beasley also denied showing C.J. pornographic material but admitted hearing C.J. had viewed pornography. In December 2006, a Jackson County grand jury returned an indictment charging Beasley with the sexual battery and fondling of C.J.

¶ 8. C.J. was ten years old when he testified at trial. Using an anatomically correct drawing of a male child, C.J. identified the parts of his body that Beasley had touched. When asked to specifically identify where Beasley touched him, C.J. circled the penis and buttocks. C.J. testified Beasley touched him in these areas both inside and outside of his clothing on many separate occasions.

¶ 9. C.J. explained that Beasley put his mouth “around where my legs are.” When asked to place an “X” around the area Beasley touched with his mouth, C.J. marked the penis on the drawing. According to C.J., Beasley had shown him a movie with “grown up” men doing the “same thing” Beasley did to him. And Beasley forced C.J. to perform “the same thing” on him.

¶ 10. Beasley testified in his own defense and denied ever doing “anything sexually” to C.J. or requesting the same to be done to him.

¶ 11. After a two-day trial, the jury found Beasley guilty of fondling and sexual battery. The circuit court sentenced Beasley to ten years on the fondling charge and twenty-five years on the sexual-battery charge, with the sentences to run consecutively. Beasley filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, which the court denied. Beasley appeals claiming: (1) the State violated his right against self incrimination by referencing his initial refusal to give a statement to law enforcement; (2) he is entitled to a new trial based on a potential juror crying during voir dire; and (3) the verdict was not supported by sufficient evidence or is against the weight of the evidence.

DISCUSSION

I. Post-Miraneia Silence

¶ 12. Beasley argues the circuit court erred in denying his requests for a mistrial after the State impermissibly commented on his post-Miranda silence. The complained of comments, which occurred first during the State’s opening statement and later during Officer Jackson’s testimony, referred to Beasley’s initial refusal to speak to law enforcement before he decided to provide an inculpatory statement admitting he fondled C.J.

¶ 13. The Fifth Amendment to the United States Constitution provides: “No person ... shall be compelled in any criminal case to be a witness against himself[.]” The Fourteenth Amendment incorporates this right to the states. Chamberlin v. State, 989 So.2d 320, 332 (¶ 35) (Miss.2008). The applicable provision in the Mississippi Constitution essentially mirrors the federal right: “In all criminal prosecutions the accused ... shall not be compelled to give evidence against himself[.]” Miss. Const, art. 3, § 26.

¶ 14. During its opening statement, the State mentioned that Officer Jackson attempted to interview Beasley, but Beasley “at that time would not talk to him.” Defense counsel objected and requested a mistrial, which the circuit court denied. The State then continued by explaining that Officer Akins would testify that Beasley confessed to “molesting, touching, [and] fondling [C.J.]” as charged in Count One.

¶ 15. Later, during the cross-examination of Officer Jackson, defense counsel asked the officer about his attempts to interview Beasley. In response, Officer Jackson explained that “[o]n the first interview [Beasley] didn’t want to talk. He didn’t say anything.” During redirect, the State further inquired about Beasley’s initial refusal to provide a statement. When asked what the tape of his interview with Beasley depicted, Officer Jackson explained: “It’s only me reading him his [Miranda ] warning and the pre-interview sheet and trying to get him to talk. He wouldn’t say anything to me, just gave me a blank stare.” Defense counsel objected to the response about Beasley’s refusal to talk during his initial interview and again moved for a mistrial. The circuit court overruled the objection and denied the request for a mistrial.

¶ 16. The United States Supreme Court has held that improper comments about a defendant’s post-Miranda silence may deprive a criminal defendant of his or her right to due process. See Doyle v. Ohio, 426 U.S. 610, 611, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). “[D]etailed conversation relating to Miranda warnings ordinarily ought not be admitted into evidence if no statement is given.” United States v. Two Bulls, 577 F.2d 63, 66 (8th Cir.1978).

¶ 17. Mississippi courts have not specifically addressed whether a prosecutor or government agent’s comments about a suspect’s initial post-Miranda refusal to speak amount to due-process violations where the defendant ultimately gives an inculpatory statement. However, federal courts have held that certain “atypical” situations permit the admission of such evidence depending on either: (1) the context of the refusal or (2) whether the vol-untariness of a later statement is contested. See United States v. Martinez, 577 F.2d 960, 963 (5th Cir.1978); Two Bulls, 577 F.2d at 66.

¶ 18. In Martinez, a defendant moved for a mistrial after a government agent testified about the two defendants’ initial refusals to provide statements after being advised of their Miranda rights. 577 F.2d at 963. The district court denied the request for a mistrial reasoning there was nothing impermissible considering the context of the agent’s testimony. Id. One defendant appealed claiming “the testimony constituted an impermissible comment on silence after Miranda warnings.” See Doyle, 426 U.S. 610, 96 S.Ct. 2240; United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). The United States Court of Appeals for the Fifth Circuit found the district court’s “percipience was confirmed at trial” when the agent also testified about statements the defendants later made. Martinez, 577 F.2d at 963. The Fifth Circuit reasoned that because the defendants had given subsequent statements, the testimony about their initial refusal to speak “could not have carried with it the kind of comment on silence ... condemned in Doyle and Hale.” Id.

¶ 19. In Two Bulls, the defendant, like Beasley, sought to exclude his inculpatory statement as involuntarily given. 577 F.2d at 66. The district court conducted a suppression hearing and found the contested statement was voluntarily made. Id. On appeal, the defendant argued the district court erred in admitting testimony about his initial refusal to provide any statement. Id. The Eight Circuit Court of Appeals rejected this argument finding that the particular case presented “an atypical situation because a later inculpatory statement was properly admitted into evidence.” Id. The court reasoned that “the jury may hear evidence on the question of voluntariness to enable it to determine what weight should be given the admission” and that “the issue of voluntariness continued throughout the trial....” Id.; see also United States v. Gallegos, 738 F.2d 378, 383 (10th Cir.1984) (finding no reversible error in prosecutor’s references to defendant’s invocation of his right to counsel because exercising this right may refute the inference that his later statement was involuntary).

¶ 20. In considering the context of the State’s comments here, we find the prosecutor’s statement and the officer’s testimony about Beasley’s prior refusal to speak was simply a recitation of the facts concerning a preceding interview. We draw from Martinez and hold that given Officer Akin’s testimony about Beasley’s later confession, Beasley was not prejudiced by comments about his earlier refusal to speak.

¶ 21. Further, like the defendant in Two Bulls, before trial, Beasley moved to suppress his interview arguing it was involuntarily given. The circuit court disagreed and admitted his inculpatory statement finding it was voluntarily made. Though Beasley does not raise the admission of his inculpatory statement as error on appeal, his defense at trial was partially based on alleged threats and coercion surrounding his statement to police. Thus, he placed the voluntariness of his inculpatory statement at issue. Because initially exercising the right to remain silent “may refute the inference that a later statement was involuntary,” we do not find the circuit court erred in refusing to grant Beasley’s requests for a mistrial. See Two Bulls, 577 F.2d at 66.

¶ 22. Even assuming a Doyle violation, the Supreme Court has held that any error in permitting a prosecutor to comment on the defendant’s right to remain silent is subject to harmless-error review. See Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The proper inquiry turns on whether, absent the government’s improper statements, it is clear beyond a reasonable doubt that the jury would have found the defendant guilty in any event. Id. (citing Chapman v. California, 386 U.S. 18, 22, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). If this is clear, the error is harmless, and the defendant’s conviction should not be reversed. See id. At trial, C.J. provided anatomical identifications and testified about Beasley’s sexual assaults and multiple impermissible touchings. The State also offered Beasley’s later admission about fondling C.J.

¶ 23. Based on the overwhelming evidence of Beasley’s guilt, we find the comments here — even if deemed to violate Doyle — amount to at most harmless error. Accordingly, the circuit court did not abuse its discretion in denying Beasley’s requests for a mistrial.

II. Prejudice from Juror-Panel Member Crying

¶ 24. Beasley also seeks a new trial arguing the conduct of a member of the jury panel (Juror 28) engendered bias and prejudice against him from the outset of the trial.

¶ 25. During voir dire, the trial judge informed the jury panel that Beasley was charged with fondling and sexual battery of a child. The judge asked panel members if, knowing the nature of the case, they could be fair and impartial. Juror 28 responded that she could not. At some point, she allegedly became emotional and started crying. Defense counsel later posited that Juror 28 “started crying [a while] ago ... [and is] apparently continuing to cry and dabbing her eyes.” The judge responded, “She looks fine to me ... I’m not going to single her out and throw her off the jury panel.... If it gets worse, I’ll consider it.”

¶ 26. The judge later struck Juror 28 for cause. Defense counsel then moved to also strike Jurors 27 and 29 — who sat beside Juror 28 — for “consoling” Juror 28. But defense counsel admitted not knowing “if she’s told them anything or what she said to them.” The judge denied the challenge. Defense counsel then moved to strike the entire venire alleging that the disruption was worsened because “a bailiff got her [a] tissue.” The court denied this request as well. Following voir dire, the State exercised peremptory challenges to strike Jurors 27 and 29.

¶ 27. Beasley argues the voir dire was laden with errors, which require reversal. First, he contends the judge should have immediately ordered Juror 28 to exit the courtroom. Second, Beasley claims that following the alleged display, the judge should have given a curative instruction to limit the effect of Juror 28’s actions. Third, Beasley contends the judge should have specifically inquired into the ability of the potential jurors to disregard her alleged disruption. Finally, Beasley argues the trial court should have granted his motion to strike the jury panel.

¶ 28. We review a trial court’s refusal to quash a jury panel or declare a mistrial under an abuse-of-discretion standard. Hopson v. State, 625 So.2d 395, 403 (Miss.1993) (holding modified on other grounds) (“[0]nce the trial judge is satisfied that the potential jurors are without prejudice that would prevent them from being fair and impartial jurors, it is within the discretion of the court to make the final determination as to whether the panel should be quashed.”); Lenard v. State, 828 So.2d 232, 235 (¶ 8) (Miss.Ct.App.2002); Harrison v. State, 737 So.2d 385, 387-88 (¶¶ 6-7) (Miss.Ct.App.1998). To obtain reversal based on a trial court’s refusal to quash a jury panel or grant a mistrial, the defendant must show prejudice. Harrison, 737 So.2d at 388 (¶ 7) (citing Holland v. State, 705 So.2d 307, 340 (¶ 123) (Miss.1997)); Evans v. State, 725 So.2d 613, 649 (¶¶ 116-17) (Miss.1997).

¶ 29. In Hopson, the Mississippi Supreme Court considered a potential juror’s comment that she would find the accused guilty if she served on the jury. Hopson, 625 So.2d at 402. The court essentially told her that she should not have made the comment and instructed her to be seated. Id. Defense counsel asked the panel if anyone else felt the same way and received no response. Id. at 403. Defense counsel later moved to quash the entire panel based on the comment, which the trial court denied. Id. The supreme court found the trial court did not abuse its discretion in refusing to strike the panel because defense counsel’s follow-up question and the court’s admonishment cured any prejudice the defendant may have suffered. Id.

¶ 30. In Evans, a venire member indicated “she would be uncomfortable and unable to serve as a juror because she found ‘it very difficult to be in the same room with [the defendant].’ ” Evans, 725 So.2d at 649 (¶ 112). Following this remark, the district attorney asked the panel whether the comment would affect their ability to be fair. The rest of the panel indicated that it would not. Id. The supreme court found the failure to quash the venire or grant a mistrial was not an abuse of discretion despite the trial court’s failure to instruct the venire to disregard the comment. Id. at 649 (¶ 117). The supreme court reasoned, “[t]he follow-up question by [the district attorney] clearly disclosed that ‘no juror felt or believed that the statement made would prejudice him or prevent him from being a fair and impartial juror.’ ” Id. (quoting Hopson, 625 So.2d at 403).

¶ 31. Here, following the court’s voir dire, the trial court admonished the venire as follows:

[Ujnder your oath as jurors[,] you are required to follow the law regardless of any personal feeling you may have either as to what the law is or what it ought to be. You have to follow it. Can you all tell me that you will do that? You will decide the facts and then apply the law as I give it to you? You all say that you can do that.
So, is there anything that I have said to you this morning that makes anyone, other than those of you who have already raised your hand, feel like you just could not be fair and impartial in this type of case or in this case in particular? You all tell me that you could be? All right.

The record does not show any panel member indicated he or she was biased or could not be fair and impartial for any reason. Similarly, the assistant district attorney later asked whether venire members could be fair and impartial in a child sexual abuse case. He further inquired if they could agree that sympathy for the victim should not enter into their decision. The record indicates the members of the venire assented to perform their duties in an impartial manner if selected to serve as jurors.

¶ 32. Jury panel members’ “promise[s] to follow the law must be given considerable deference.” Harrison, 737 So.2d at 388 (¶ 7) (internal quotation marks omitted). Here, the trial court struck panel members who stated they could not be fair and impartial. It also directly questioned those who remained on the panel about their ability to be fair and impartial. No juror indicated any prejudice or bias. Because Beasley fails to show any resulting prejudice, we find the trial court did not abuse its discretion in refusing to strike the venire or grant a mistrial.

III. Sufficiency and Weight of the Evidence

¶ 33. Beasley argues his sexual-battery conviction is not supported by sufficient evidence or the weight of the evidence. When addressing the legal sufficiency of evidence, we consider all evidence in a light most favorable to the State. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). Credible evidence consistent with guilt must be accepted as true. The State receives the benefit of all favorable inferences reasonably drawn from the evidence. Jones v. State, 20 So.3d 57, 64 (¶ 16) (Miss.Ct.App.2009) (citing Hughes v. State, 983 So.2d 270, 275-76 (¶¶ 10-11) (Miss.2008)). The jury resolves matters of weight and credibility. Reversal is proper when reasonable and fair-minded jurors could only find the accused not guilty. Id. Our primary duty in considering the sufficiency of the evidence is to determine whether from the evidence presented, it would be impossible for a reasonable juror to find the defendant guilty. Ducksworth v. State, 767 So.2d 296, 301 (¶ 10) (Miss.Ct.App.2000).

¶ 34. The standard differs slightly when reviewing a claim based on the weight of the evidence challenging a trial court’s denial of a motion for a new trial. Under this standard, “we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). We evaluate the evidence in the light most favorable to the verdict. Id. And we are required to accept as true all evidence consistent with the defendant’s guilt, along with any reasonable inferences that might be drawn from the evidence. Young v. State, 891 So.2d 813, 821 (¶ 21) (Miss.2005). “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18).

¶ 35. Beasley was convicted of touching a child for lustful purposes, or fondling, and sexual battery. Beasley only challenges the sufficiency and weight of the evidence regarding sexual battery and, therefore, waives these issues as to fondling. Waiver aside, his inculpatory statement coupled with C.J.’s testimony, which we address below, show his fondling conviction was supported by the sufficiency and weight of the evidence.

¶ 36. Under Mississippi Code Annotated section 97 — 3—95(l)(d) (Rev.2006), a defendant is guilty of sexual battery if he “engages in sexual penetration with ... [a] child under the age of fourteen (14) years of age” and “is twenty-four (24) or more months older than the child.” The term “ ‘[s]exual penetration’ includes cunnilingus, fellatio, buggery or pederasty, [and] any penetration of the genital or anal openings of another person’s body by any part of a person’s body[.]” Miss.Code Ann. § 97-3-97(a) (Rev.2006). The age requirements of the statute were met, since at the time of the offense, Beasley was forty-two years old and C.J. was seven. Thus, our sole inquiry turns on whether the State proved the element of “sexual penetration.”

¶ 37. “Penetration is the very essence of the crime of sexual battery.” Johnson v. State, 626 So.2d 631, 632 (Miss. 1993). “[P]roof of contact, skin to skin, between a person’s mouth, lips, or tongue and the genital opening of a woman’s body, whether by kissing, licking, or sucking, is sufficient proof of sexual penetration.” Hennington v. State, 702 So.2d 403, 408 (¶ 17) (Miss.1997) (internal quotation marks omitted). This standard applies to “all persons regardless of the gender of the victim or the perpetrator.” Id. Further, the supreme court has instructed:

Sexual penetration ... [includes] fellatio or any penetration of the genitalia by any part of a person’s body. This Court [has] specifically stated that fellatio does involve penetration.... “Fulfillment of the sodomy penetration requirement is not restricted to acts wherein the accused does the penetrating. We hold that an act of fellatio performed by the accused is an act proscribed by the statute.”

Id. at (¶ 18) (quoting Miller v. State, 636 So.2d 391, 396 (Miss.1994)) (internal citation omitted).

¶ 38. The only witness to testify directly regarding sexual penetration was C.J. Beasley asserts that C.J.’s “vague,” “inconclusive,” and “uncorroborated” testimony is inadequate to support a guilty verdict on the sexual-battery charge.

¶ 39. But even uncorroborated testimony of a sex-crime victim is legally sufficient to support a conviction. McDonald v. State, 816 So.2d 1032, 1034 (¶ 7) (Miss.Ct.App.2002) (citing Collier v. State, 711 So.2d 458, 462 (¶ 18) (Miss.1998)); see also Lattimer v. State, 952 So.2d 206, 224 (¶55) (Miss.Ct.App.2006). It is well settled that “[t]he jury determines the weight and credibility to give witness testimony and other evidence.” Moore v. State, 933 So.2d 910, 922 (¶ 43) (Miss.2006). Appellate courts “may not pass upon the credibility of witnesses[.]” Id. If the evidence justifies a verdict, we must accept it “as having been found worthy of belief.” Id. (internal quotation marks omitted).

¶40. When asked to draw an “X” where Beasley put his mouth, C.J. drew an “X” on the penis on an anatomically-correct drawing of a male child, which was admitted into evidence. The record shows the State projected the drawing with C.J.’s marking onto a viewing screen. The prosecutor again asked C.J. if the location where he drew an “X” was where Beasley had “touched ... with his mouth,” and C.J. acknowledged it was. When asked whether Beasley ever made him “do anything with [Beasley’s] private parts,” C.J. responded that Beasley made him do “[t]he same thing.”

¶ 41. We find C.J.’s illustrations and related testimony neither vague nor inconclusive. When considered in the light most favorable to the State and in concert with C.J.’s testimony that Beasley had shown him a film of “grown up” men doing the “same thing” that Beasley did to him, we find the evidence quite sufficient to sustain a conviction based on fellatio-based sexual battery. These specific illustrations and related testimony also convince us that the verdict is not against the overwhelming weight of the evidence. Under sections 97 — 3—95(l)(d) and 97-3-97(a), and the case law interpreting the element of “sexual penetration,” see Hennington, 702 So.2d at 408 (¶ 17), we conclude the verdict must stand. We decline the invitation to reweigh testimony or make witness-credibility determinations, which are within the sole province of the jury.

¶ 42. For these reasons, we affirm.

¶ 43. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, TOUCHING A CHILD FOR LUSTFUL PURPOSES, AND SENTENCE OF TEN YEARS; AND COUNT II, SEXUAL BATTERY, AND SENTENCE OF TWENTY-FIVE YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A $5,000 FINE ON EACH COUNT FOR A TOTAL OF $10,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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

      . We use initials to protect the anonymity of the child victim.


author: ROBERTS, J.,

text:
    PRECISION COMMUNICATIONS, INC., Appellant v. HINDS COUNTY, Mississippi, Appellee.
    No. 2009-CC-01720-COA.
    Court of Appeals of Mississippi.
    May 3, 2011.
    Rehearing Denied Aug. 16, 2011.
    Certiorari Denied Nov. 17, 2011.

      Robert L. Gibbs, Katie Lofton Wallace, Jackson, attorneys for appellant.
    Crystal Wise Martin, attorney for appel-lee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Precision Communications, Inc. (PC) appealed to the Hinds County Circuit Court after the Hinds County Board of Supervisors (HCBS) awarded a contract for the installation of early-warning tornado sirens to Emergency Dispatch Notification Systems (EDNS) instead of PC. The circuit court remanded the matter to HCBS for reconsideration of all bids. On remand, HCBS decided to reject all previous bids and readvertise the contract. The circuit court then dismissed PC’s appeal as moot. Aggrieved, PC appeals and argues that the circuit court lacked the authority to remand the matter to HCBS for reconsideration of the previous bids. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. During April 2008, numerous tornadoes moved through Jackson, Mississippi. Many Hinds County residents reported that they did not hear existing early-warning sirens. HCBS later determined that many of the early-warning sirens were in disrepair. Consequently, HCBS authorized Larry Fisher, the Hinds County Emergency Operations Manager, to apply for a grant for funds to repair or replace the non-functioning early-warning sirens. Fisher applied for grants through the Mississippi Emergency Management Agency with funds supplied by the Federal Emergency Management Agency and the United States Department of Homeland Security. Additionally, Jim McCreary of PC helped HCBS apply for grant funds by providing estimates for early-warning systems. McCreary’s estimates were included in HCBS’ grant application.

¶ 3. On July 31, 2008, HCBS published a notice that it was requesting proposals to replace up to fifty-one broken and/or outdated emergency weather sirens. HCBS’ notice stated that parties interested in placing bids were to deliver sealed specification responses without pricing information by August 22, 2008. HCBS’ notice further stated that an electronic bidding process would begin on August 27, 2008.

¶ 4. PC hand-delivered sealed specifications without pricing and later participated in an online bidding process conducted by BidBridge, LLC. Seven bids were presented to HCBS. HCBS subsequently held a special meeting, and according to Bid-Bridge’s recommendation, HCBS voted to award the contract to EDNS. During the meeting, McCreary voiced his opposition to HCBS’ decision to award the contract to EDNS.

¶ 5. On November 26, 2008, PC filed a “notice of appeal and request for stay” in the circuit court. PC stated that it would “attach, supplement and incorporate herein a Bill of Exceptions ... within a reasonable time after [HCBS] fulfills its public records request for documents to be included therein.” PC also requested that the circuit court stay HCBS’ award of the contract to EDNS until after the circuit court had ruled on PC’s bill of exceptions. On December 8, 2008, PC filed an “emergency motion to stay.” PC requested that the circuit court stay HCBS’ award of the contract to EDNS. Approximately twenty days later, the circuit court filed its order denying PC’s motion to stay. HCBS and EDNS then entered into a contract for the installation of ten of the fifty-one weather sirens.

¶ 6. On July 28, 2009, HCBS moved to dismiss PC’s appeal, arguing that it was moot because HCBS had “chosen to rebid the work that is the subject of this appeal.” PC responded and argued that HCBS did not have the authority to rebid the project. PC also argued that the circuit court did not have the authority to dismiss PC’s appeal on the basis that HCBS had decided to rebid the project. Finally, PC requested that the circuit court stay HCBS’ attempt to rebid the project. Shortly thereafter, PC filed its bill of exceptions to HCBS’ decision to award the contract to EDNS.

¶ 7. On September 2, 2009, the circuit court entered an order denying HCBS’ motion to dismiss PC’s appeal. However, the circuit court also imposed a stay of PC’s appeal and remanded the matter to HCBS with instructions to reconsider the previous bids. On September 18, 2009, HCBS provided the circuit court with a copy of a transcript and executive session minutes regarding its reconsideration of all previous bids. During the discussion regarding reconsideration of all bids, HCBS was informed that awarding the contract to PC could endanger the grant funding the project. HCBS was required to comply with the Department of Homeland Security’s Financial Management Guide, which directs that “[contractors that develop or draft specifications, requirements, statements of work, and/or Requests for Proposal ... for a proposed procurement shall be excluded from bidding or submitting a proposal to compete for the award of such procurement.” Based on the discussions during HCBS’s meeting, HCBS informed the circuit court that it had “voted to reject all of the bids and rebid the award for early warning sirens.”

¶ 8. On October 8, 2009, the circuit court filed its order lifting its stay and dismissing PC’s appeal. In so doing, the circuit court held as follows:

The court is persuaded and adopts the arguments advanced by the County that regarding the County’s revocation of its initial bid award, the County’s reconsideration of all the bids of initial weather siren bidders (to include Precision) and the County’s ultimate rejection of all bids initially submitted to the County makes moot the appeal before the court. This is especially so considering the County’s decision to rebid the weather sirens project.
It is a rudimentary principle of law, the County’s Board of Supervisors may reject any and all bids submitted for its advertised projects. Precision acknowledges as much by their execution of the Electronic Bid Submission Form which substantially contains this rejection provision. Moreover, there is no prohibition against the County revoking its pri- or acceptance of a project bid. [footnote omitted] Precision argues that § 11 — 51— 75, Miss.Code Ann[.] (1972) mandates that the court hear their appeal and reverse the County’s award. Thereafter, Precision insists that the Court is duty bound to provide them a remedy that exclusively awards the weather siren contract to Precision. This Court finds that such interpretation of the statute is flawed.
The safety of the citizens of Hinds County remains a premier concern of this Court. Consequently, the Court lifts any imposed stay that would preclude the County from rebidding for the repair and/or replacement of its weather sirens.

PC appeals.

STANDARD OF REVIEW

¶ 9. “The scope of review is limited when examining the actions of a municipal board.” Nelson v. City of Horn Lake ex. rel. Bd. of Aldermen, 968 So.2d 938, 942 (¶ 10) (Miss.2007). “For questions of law, a municipal board’s decision is reviewed de novo.” Id. Furthermore, we apply a de novo standard of review to issues of statutory interpretation. Id. Otherwise, we “will not set aside the action of the governing body of a municipality unless such action is clearly shown to be arbitrary, capricious, or discriminatory or is illegal or without substantial evidentiary basis.” Id. at (¶ 11) (quotations omitted). “An act is arbitrary and capricious when it is done at pleasure, without reasoned judgment or with disregard for the surrounding facts and circumstances.” Id. “Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion or more than a ‘mere scintilla’ of evidence.” Id.

ANALYSIS

THE CIRCUIT COURT’S AUTHORITY TO REMAND FOR RECONSIDERATION

¶ 10. PC argues that the circuit court did not have the authority to stay its appeal and remand the matter to HCBS so that it could reconsider the bids. On remand, HCBS opted to reject all bids and readvertise the project for new bids. According to PC, the circuit court committed reversible error when it remanded the matter to HCBS.

¶ 11. Regarding a circuit court’s obligations incident to an appeal from a decision of a board of supervisors, Mississippi Code Annotated section 11-51-75 (Rev. 2002) provides as follows:

the circuit court ... shall either in term time or in vacation hear and determine the same on the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment. If the judgment be reversed, the circuit court shall render such judgment as the board or municipal authorities ought to have rendered, and certify the same to the board of supervisors ....

PC argues that the circuit court was obligated to either affirm or reverse HCBS’ judgment. PC further argues that, as set forth in section 11-51-75, in the event that the circuit court reversed the judgment of HCBS, the court was required to “render such judgment as the board or municipal authorities ought to have rendered and certify the same to the board of supervisors.” According to PC, the circuit court was required to make one of three decisions: (1) find that HCBS properly awarded the project to EDNS; (2) find that HCBS should not have considered EDNS’ bid and determine which bid HCBS should have accepted; or (3) find that HCBS should have rejected all bids and rebid the project.

¶ 12. In Preferred Transport Co., LLC v. Claiborne County Board of Supervisors, 32 So.3d 549, 551 (¶ 3) (Miss.Ct.App.2010), this Court examined a scenario in which the Claiborne County Board of Supervisors (CCBS) awarded a contract for solid-waste disposal to a company that did not submit the lowest bid on the project. CCBS based its decision on factors that were not contained in CCBS’ request for proposals. Id. Preferred Transport Company (PTC) appealed to the Claiborne County Circuit Court. Id. at 551 (¶4). The circuit court held that CCBS HAD exceeded its statutory authority when it considered other factors that were not in the initial request for proposals. Id. The circuit court then ordered CCBS to reopen the request for proposals process and include the other factors that were not included in the first request for proposals. Id. PTC then appealed and argued that the circuit court only had the authority to award the contract to PTC or award damages to PTC. Id. at 554 (¶ 13).

¶ 13. On appeal, this Court noted that, as set forth in section 11-51-75, the circuit court was obligated to render the judgment that CCBS should have rendered. Id. This Court also noted that, pursuant to Mississippi Code Annotated section 31-7-13(r) (Rev.2002), if a board of supervisors finds that none of the proposals are qualified and acceptable, the request-for-proposals “process may be reinitiated.” Transport, 32 So.3d at 554 (¶ 14). Finally, this Court held that because CCBS had the statutory authority to reopen the proposal process, the circuit court did not err when it ordered HCBS to reopen the request-for-proposals process. Id.

¶ 14. In the case presently before us, the circuit court did not order HCBS to reopen the request-for-proposals process. Instead, the circuit court remanded the matter to HCBS for reconsideration. In other words, the circuit court gave HCBS an opportunity to decide that it would reject all previous bids and reopen the request-for-proposals process. After HCBS decided to reject all bids and reopen the request-for-proposals process, the circuit court found that PC’s appeal was moot.

¶ 15. There are numerous instances in which Mississippi appellate courts have remanded matters to fact-finders for reconsideration. See, e.g., Bailey v. Beard, 813 So.2d 682, 685-86 (¶ 16) (Miss.2002) (reversing and remanding for reconsideration of damages); Ferrill v. Miss. Employment Sec. Comm’n, 642 So.2d 933, 934 (Miss.1994) (reversing and remanding for reconsideration in light of the appropriate standard of proof); Howard v. Howard, 913 So.2d 1030, 1040 (¶22) (Miss.Ct.App.2005) (reversing and remanding a chancellor’s decision to deny modification of child custody with instruction to reconsider that ruling on remand); Burgess v. Trotter, 840 So.2d 762, 771 (¶43) (Miss.Ct.App.2003) (reversing and remanding for reconsideration of a decision to award an unlocated parcel of land). However, it is uncommon to remand a matter while staying an appeal. There can be no doubt that the circuit court essentially gave HCBS an opportunity at a “second bite at the apple.”

¶ 16. Be that as it may, any error that resulted from the circuit court’s decision to remand for reconsideration of the matter by HCBS is harmless because, as stated in Preferred Transport, the circuit court could have ordered HCBS to reject all bids and reopen the request-for-proposals process. Therefore, we find that it is appropriate to affirm the judgment of the circuit court finding that PC’s appeal was moot. “Cases in which an actual controversy existed at trial but the controversy has expired at the time of review, become moot ... [and] [t]his Court will not adjudicate moot questions.” Alford v. Miss. Div. of Medicaid, 30 So.3d 1212, 1214 (¶ 8) (Miss.2010). Accordingly, we affirm. Because we affirm the circuit court’s decision that PC’s appeal was moot, PC’s other issues on appeal are likewise rendered moot.

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

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


author: BARNES, J.,

text:
    ALFA INSURANCE CORPORATION, Appellant v. Thomas HASSELLE and Shirley Hasselle, Appellees.
    No. 2010-CA-00609-COA.
    Court of Appeals of Mississippi.
    Aug. 9, 2011.
    Rehearing Denied Nov. 8, 2011.

      Toby Justin Gammill, David E. Stovall, Jackson, attorneys for appellant.
    Angela Taylor Miller, Charles E. Miller, McComb, attorneys for appellees.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. Thomas Hasselle struck and injured his wife, Shirley Hasselle, with the couple’s automobile. The Hasselles were both named insureds under an automobile insurance policy issued by Alfa Insurance Corporation (Alfa). The insurance adjuster for Alfa offered the Hasselles a $40,000 settlement on the claim, but the couple refused the offer. Alfa subsequently realized its initial offer was a mistake as the terms of the liability-coverage portion of the policy excluded Shirley as a named insured and as a family member. However, Alfa did provide coverage under the policy’s uninsured motorist and medical-payment provisions. Alfa filed a request for a declaratory judgment with the Pike County Chancery Court and interpled the funds owed to Shirley. The chancellor entered a declaratory judgment and a subsequent amended declaratory judgment against Alfa; both judgments ruled that Shirley was not excluded under the liability portion of the policy. As there remained additional un-adjudicated counterclaims filed by the Hasselles, the chancellor transferred his judgment and the counterclaims to the Pike County Circuit Court. Alfa filed a motion for summary judgment in regard to the counterclaims, which the circuit court granted. Alfa now appeals the chancery court’s ruling in its declaratory judgment and amended declaratory judgment. Finding error, we reverse and render judgment in favor of Alfa.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On July 26, 2005, Thomas was operating his automobile when he accidentally struck his wife, Shirley, and caused her bodily injury. The Hasselles were named insureds under an automobile insurance policy issued by Alfa. On October 20, 2005, an insurance adjuster for Alfa, Sean Oakley, offered the Hasselles $40,000 to settle any outstanding claim against the policy. However, the Hasselles rejected the offer and demanded $900,000 for pain and suffering and $50,000 for medical expenses.

¶ 3. On December 13, 2005, Oakley replied to the Hasselles’ demand letter, informing them that the offer of $40,000 was a mistake as liability coverage did not exist under the terms of the policy. Under Part A of the policy, there existed an exclusion for liability coverage for “any bodily injury to any covered person.” The term “covered person” included any named insured, spouse, or any other family member that lives with the insured. Alfa offered $10,000 in uninsured motorist benefits and $5,000 in medical payments to the Has-selles, who rejected the offer.

¶ 4. On December 22, 2005, Alfa filed a declaratory-judgment action and inter-pleader in the Pike County Chancery Court, “seeking a declaration of the rights and obligations of Alfa” under the policy. It interpled $5,000 for Shirley’s medical expenses and $10,000 in uninsured motorists benefits. The Hasselles filed a response on March 13, 2006, requesting that Alfa’s complaint be dismissed with prejudice.

¶ 5. Alfa filed a motion for summary judgment on April 3, 2006. The Hasselles filed a motion to amend and an amended response to the complaint for declaratory judgment on June 9, 2006, which contained allegations of breach of implied covenants of good faith and fair dealing, fraudulent misrepresentation, negligent misrepresentation, and unconscionability. The chancery court granted the Hasselles’ motion to amend on June 19, 2006, and Alfa’s motion for summary judgment was denied.

¶ 6. On October 17, 2006, the chancery court held a trial on Alfa’s declaratory-judgment complaint. The chancery court entered its judgment on December 18, 2006, and found that Shirley was “not excluded from coverage under the liability portion” of the policy, citing compliance with the requirements of Mississippi Code Annotated section 63-15^3 (Supp.2010). Alfa appealed the declaratory judgment to the Mississippi Supreme Court, which granted an interlocutory review. However, the supreme court later ruled that Alfa’s petition for interlocutory appeal was improvidently granted. Alfa had also filed a direct appeal which was dismissed as there existed pending counterclaims by the Hasselles; thus, the chancellor’s ruling was not a final judgment under Rule 54(b) of the Mississippi Rules of Civil Procedure.

¶ 7. Alfa filed a motion to dismiss the counterclaims on May 12, 2008. The Has-selles filed a response to the motion on August 8, 2008. An amended declaratory judgment was entered by the chancery court on November 4, 2008, which restated its previous ruling that Shirley was eov-ered under the liability portion of the policy and added that all other claims are to be considered at a later time. The chancery court subsequently dismissed Alfa’s pending motion and transferred the case and all remaining counterclaims to the Pike County Circuit Court on November 17, 2008. Alfa filed a motion for summary judgment with the circuit court, which was granted on March 25, 2010.

¶ 8. Alfa filed a timely notice of appeal with the circuit court, claiming that ruling in the chancellor’s declaratory judgment and amended declaratory judgment was contrary to Mississippi law. Finding that the chancellor’s rulings in his judgments were in error, we reverse and render judgment in favor of Alfa.

STANDARD OF REVIEW

¶ 9. If a chancellor’s findings are supported by substantial evidence, they will not be disturbed on appeal “unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” Wesley M. Breland, Realtor, Inc. v. Amanatidis, 996 So.2d 176, 179 (¶ 12) (Miss.Ct.App.2008) (citing Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002)). However, “[questions of law are reviewed de novo.” Id. (citation omitted).

I. Whether the Hasselles’ arguments in the appellees’ brief may be considered on appeal.

¶ 10. In the appellees’ brief, the Hasselles argue that the language in the policy was ambiguous and breached “an implied covenant of good faith and fair dealing.” Alfa contends that these issues were not raised by Alfa on appeal and are not properly before this Court as the Has-selles failed to file a notice of cross-appeal.

¶ 11. Under Mississippi Rule of Appellate Procedure 4(c), once a party files a notice of appeal, “any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires.” M.R.A.P. 4(c). However, a party is not required to file a cross-appeal if its only purpose “is to urge alternative grounds for affirmance.” Presley v. City of Senatobia, 997 So.2d 235, 238 (¶ 8) (Miss.Ct.App.2008); see also Dunn v. Dunn, 853 So.2d 1150, 1152 (¶ 8) (Miss.2003) (holding that “an appellee should not be required to file a cross-appeal unless he or she is aggrieved by the trial court’s judgment.”). The Hasselles’ claims are merely to defend the chancellor’s ruling in the declaratory judgments. They do not seek to reverse or alter the. chancellor’s judgments. Nor have they sought to reverse or alter the circuit court’s grant of summary judgment in favor of Alfa. Moreover, the chancellor noted at trial that the ambiguity of the policy language was an issue before the court. Accordingly, we find that the Hasselles were not required to bring those issues in a cross-appeal, and we proceed to review the merits of Alfa’s issue on appeal, addressing the arguments made by the Hasselles pertinent to the appeal.

II. Whether the chancery court erred in ruling that Shirley was not excluded under the liability-coverage portion of the Hasselles’ automobile policy.

¶ 12. Reading the Hasselles’ automobile policy in conjunction with Mississippi Code Annotated section 63-15-43 (the Mississippi Motor Vehicle Safety Responsibility Law), the chancellor stated at trial that Shirley “was not excluded from coverage under the liability portion of the policy[.]” Section 63-15^43 reads, in pertinent part, that:

(2) Such owner’s policy of liability insurance:
(b) Shall pay on behalf of the insured named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, all sums which the insured shall become legally obligated to pay as damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with respect to each such motor vehicle, as follows: Twenty-five Thousand Dollars ($25,-000.00) because of bodily injury to or death of one (1) person in any one (1) accident and, subject to said limit for one (1) person, Fifty Thousand Dollars ($50,000.00) because of bodily injury to or death of two (2) or more persons in any one (1) accident, and Twenty-five Thousand Dollars ($25,000.00) because of injury to or destruction of property of others in any one (1) accident.

(Emphasis added). The chancery court further noted that spousal immunity had been abrogated in Burns v. Burns, 518 So.2d 1205 (Miss.1988) and that, “when read in conjunction with the new compulsory liability insurance law, the court would find that it is against public policy to exclude a person who could bring suit against an insured and recover[.]”

¶ 13. Alfa contends that this ruling by the chancery court was erroneous and “is contrary to the holdings of the Mississippi Supreme Court.” The policy language stated that Shirley, as a named insured and as a family member, was excluded from liability coverage. Under the “Definitions” section of the policy, it reads:

Throughout this policy you and your means:
1. The named insured shown in the declaration.
2. The spouse if a resident of the same household.
Covered Person — means:
1. You and your.
2. Family members.

Under Part A of the policy, which addresses Liability Coverage, it states:

If this coverage is shown on your declaration, we will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of car accident arising out of the ownership, use or maintenance of a covered car or non-owned car.
EXCLUSIONS
We do not provide Liability Coverage for:
9. Any bodily injury to any covered person.

¶ 14. As cited by Alfa, the Mississippi Supreme Court considered a similar exclusionary provision in regard to liability coverage for family members in Thompson v. Mississippi Farm Bureau Mutual Insurance Co., 602 So.2d 855, 856 (Miss.1992), which, incidently, was decided after Bums. The supreme court, addressing the more specific issue of whether the excluded family member resided with the policy holder, upheld this type of family exclusionary policy provision for liability coverage. In its analysis, the supreme court quoted its prior opinion in Perry v. Southern Farm Bureau Casualty Insurance Co., 251 Miss. 544, 170 So.2d 628, 630 (1965), stating: “There is no valid reason why insurance companies should not have the right, by contract, to avoid coverage for those in the family circle, who, on account of their close intimacy, may be expected to be riding at frequent intervals in the insured car.” Id. at 587, 170 So.2d 628.

¶ 15. The Hasselles argue in favor of the chancery court’s holding, asserting that the policy language was complex and ambiguous and that they were unaware that such an exclusion existed. The Hasselles cite one case, Shook v. State Farm Mutual Insurance Co., 872 F.Supp. 768, 774 (D.Mont.1994), which deals with a similar “household exclusion,” to support their proposition that separately listed provisions in a policy must be read together, and if ambiguity is found, then the provision is void. The Hasselles also note the Alfa adjuster’s confusion, which mistakenly resulted in the $40,000 offer.

¶ 16. Reviewing the policy provisions at issue and listed above, we conclude that they are clear and unambiguous. Furthermore, Shook is not controlling law in Mississippi. As aptly stated by the Mississippi Supreme Court in Perry, although “[ojther authorities, together with cases from different jurisdictions, have been brought to the attention of the Court[,j ... the polestar, from which the Court has taken its reckoning, is found in the general principles which have permeated the jurisdiction of this state [.]” Perry, 170 So.2d at 631 (emphasis added). We acknowledge that Justice McRae wrote a lone dissent in Thompson, arguing the same public policy and statutory arguments employed by the chancellor in the case before us. Thompson, 602 So.2d at 860-64 (McRae, J., dissenting). However, the Thompson majority rejected the dissent’s arguments, and this Court is bound by the precedent upheld in that case — that exclusionary provisions for family members and named insureds from liability coverage are valid and enforceable in this state.

¶ 17. We also disagree that the exclusion of Shirley from liability coverage conflicts with section 63 — 15—43(2)(b) of the Mississippi Motor Vehicle Safety Responsibility Law. This statutory provision was enacted in 1952, prior to Perry and Thompson, and subsequent amendments have not affected the pertinent language in the statute. Rather, the amendments primarily pertain to increasing the monetary limits of coverage. This Court has observed “that when the [Ljegislature leaves statutory language unchanged, it presumably ratifies settled judicial interpretations of that language.” Tolbert v. Southgate Timber Co., 943 So.2d 90, 96 (¶ 21) (Miss.Ct.App.2006) (citing In re Kelly’s Estate, 193 So.2d 575, 577-78 (Miss.1967)). “If ... the public interest demands a change in the Safety Responsibility Law, then it will be up to the [Ljegislature to make such change.” State Farm Mut. Auto. Ins. Co. v. Mettetal, 534 So.2d 189, 194 (Miss.1988).

¶ 18. We find that Shirley was excluded from liability coverage under the policy terms and only entitled to payment under the uninsured motorist and medical-payments portions of the policy. Accordingly, the chancery court’s findings in its declaratory judgment, and its amended declaratory judgment, were erroneous; therefore, we reverse and render judgment in favor of Alfa.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

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

      . The circuit court's grant of summary judgment is not at issue in this appeal.

      . Shirley had already been reimbursed $1,476.25 for her medical expenses. Therefore, only the remaining balance of $3,523.75 was tendered to the chancery clerk.

      . The record reflects that these identical claims were contained in a complaint filed by the Hasselles in federal court. However, those filings are not contained in the record and are not at issue here.