author: GRIFFIS, P.J., IRVING, P.J.,

text:
    Glen AVENT, Appellant v. MISSISSIPPI POWER & LIGHT COMPANY, (Entergy Mississippi, Inc.), Appellee.
    No. 2010-CA-00865-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2011.
    Rehearing Denied May 8, 2012.
    Certiorari Denied Aug. 9, 2012.
    Dana J. Swan, Clarksdale, attorney for appellant.
    John H. Dunbar, Kate Mauldin Embry, Oxford, attorneys for appellee.
    BARNES, ISHEE, ROBERTS, CARLTON and MAXWELL, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. This case considers whether the circuit court was in error to dismiss Glen Avent’s complaint against Entergy Mississippi, Inc. for failure to prosecute under Mississippi Rule of Civil Procedure 42(b), or to grant summary judgment in favor of Sheraton Tunica Corporation under Mississippi Rule of Civil Procedure 56. We find no error and affirm.

FACTS

¶ 2. Avent was employed by Andy Bland Construction Company. On July 3, 1994, Avent was working at a construction site in Tunica County, Mississippi. He operated a man-lift that became stuck in wet sand. There was an effort to free the lift and pull it out of the sand. The lift came into contact with an overhead electrical line. As a result, Avent was injured.

¶3. Sheraton owned the property that was the construction work site. Sheraton contracted with W.G. Yates and Son Construction Co., as the general contractor. Entergy had installed the electrical line. Andy Bland was a subcontractor of Yates.

¶ 4. On November 8, 1996, Avent filed a lawsuit. The complaint named several defendants, including Mississippi Power & Light (now known as Entergy Mississippi, Inc.) Yates, Sheraton, and several John Does. After the defendants were served, they responded to the complaint, and the parties engaged in discovery.

¶ 5. Sheraton filed a motion for summary judgment on May 21, 1997. Avent promptly responded to Sheraton’s motion.

¶ 6. The circuit court entered an “Agreed Scheduling Order” on April 18, 1997, requiring all discovery completed by August 30, 1997; plaintiff’s experts to be designated by June 15, 1997; defendant’s experts by July 30, 1997; and all motions filed by September 30, 1997. On August 28, 1997, the circuit court entered an “Agreed Amended Scheduling Order,” requiring all discovery completed by November 30, 1997; plaintiffs experts designated by August 30, 1997; defendant’s experts by September 30, 1997; and all motions filed by December 30, 1997. On November 13, 1997, the circuit court entered another “Agreed Amended Scheduling Order,” requiring all discovery completed by March 30, 1998; plaintiffs experts designated by December 30, 1997; defendant’s experts designated by January 30, 1998; and all motions filed by April 30, 1998.

¶ 7. Yates filed a motion for summary judgment on May 1, 1998. After the circuit court heard the summary-judgment motions, the court granted Sheraton’s motion, which was filed on May 21, 1997, and dismissed Sheraton as a party on October 6, 1998. A week later, the circuit court granted Yates’s motion for summary judgment and dismissed Yates as a party.

¶ 8. Several filings were entered on the docket from the time of the final judgment through August 10, 1999, when the clerk filed a letter from Entergy’s counsel that gave notice that the name of his law firm had changed. None of the filings were significant.

¶ 9. For almost six years, according to the clerk’s docket, this case was dormant. The clerk’s docket sheet does not indicate that any further pleadings were filed or action taken until February 14, 2005, when the plaintiffs attorney filed a designation of experts.

¶ 10. Almost another year passed with no action on this case. On January 11, 2006, Avent filed a supplemental response to Entergy’s interrogatories. After this, the docket indicates the parties’ filings as follows:

March 29, 2006: Avent mailed a letter to Entergy, investigating whether the case could be disposed of through mediation.

April 5,2006: Entergy responded by mail to Avent’s March letter.

April 10, 2006: Entergy sent a follow-up letter to Avent regarding mediation.

April 12,2006: Avent set mediation for May 30,2006.

April 12,2006: Entergy confirmed mediation dates, but questioned the value of mediation due to the length of time that the case had been dormant.

April 18,2006: Entergy filed a notice of service of its third set of interrogatories.

April 25, 2006: Entergy sent a letter to Avent cancelling mediation, requesting a new deposition, and expressing concern about the likelihood of finding crucial witnesses given the age of the case.

May 9,2006: Avent sent Entergy a letter with potential deposition dates.

June 6, 2006: Entergy filed its motion to dismiss based on want of prosecution; at the same time, Entergy filed an affidavit explaining its inability to locate witnesses.

February 9, 2009: Avent filed a motion for a pretrial conference.

February 10, 2009: Entergy filed a response to Avent’s pretrial-conference motion.

May 26, 2009: Entergy filed a supplemental motion to dismiss.

September 23, 2009: Avent sent Entergy a proposed pretrial statement.

February 18,2010: Entergy filed a notice of hearing on its motion to dismiss.

March 15, 2010: Entergy supplemented its motion to dismiss, detailing its inability to locate certain witnesses.

April 30, 2010: The circuit court dismissed Entergy from Avent’s lawsuit.

¶ 11. The circuit court held a hearing on Entergy’s motion to dismiss on April 20, 2010. At the conclusion of the hearing, the circuit judge ruled:

The question arises as to how long is too long? How much prejudice constitutes undue prejudice? In considering this matter, and [sic] I did give attention to it prior to my coming here today, there was a lot of inactivity during the middle age of this case. And then there was very nominal activity between 2006 and today.
If this case were to be continued, we still would not be complete. We still would not have completed the discovery in this case. If I would allow this case to continue, when would I ever be able to dismiss any other case? I know that each case stands on its own feet. But considering the length of delay, the reason for the delay, the facts having become dim due to delay, witnesses who cannot be found, the increased cost of discovery, the time that it would take to replace experts and the numerous periods of inactivity, the Court finds that this case is imminently ripe for a dismissal. And if I would not dismiss this case, I would be remiss in the performance of my duties.
Therefore, the case is dismissed, finally dismissed.
I’m soiry, but I don’t see how I could ever dismiss a case in the future if I did not dismiss this case.

(Emphasis added).

¶ 12. On April 30, 2010, the circuit judge signed a final judgment granting Entergy’s motion to dismiss. It is from this judgment that Avent now appeals.

ANALYSIS

A. The Dismissal of Claims Against Entergy

¶ 13. Rule 41(b) of the Mississippi Rules of Civil Procedure states:

For failure of the plaintiff to prosecute ..., a defendant may move for dismissal of an action or of any claim against him.... Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ..., operates as an adjudication upon the merits.

M.R.C.P. 41(b). The circuit court relied on Rule 41(b) to dismiss Avent’s claims against Entergy for failure to prosecute. We find that the circuit court was within its discretion, and the dismissal was proper.

¶ 14. Recently, in Barry v. Reeves, 47 So.3d 689, 692-93 (¶¶ 8-9) (Miss.2010), the Mississippi Supreme Court addressed the dismissal of a plaintiffs case for failure to prosecute, stating:

The courts of this state have the inherent power to dismiss a case for want of prosecution, and a trial court may dismiss a case on that basis for the sake of expediting justice and controlling its own docket. However, given the severity and finality of this sanction, which strips a litigant of his opportunity to pursue his cause of action, dismissal for failure to prosecute pursuant to Mississippi Rule of Civil Procedure 41(b) is “reserved for the most egregious cases.” A ruling dismissing the case with prejudice on this basis “will be affirmed only if there is a showing of a clear record of delay or contumacious conduct by the plaintiff, and where lesser sanctions would not serve the best interest of justice.” “Cases ‘in which dismissals with prejudice have been affirmed on appeal illustrate that such a sanction is reserved for the most egregious of cases, usually cases where the requisite factors of clear delay and ineffective lesser sanctions are bolstered by the presence of at least one of the aggravating factors.’ ”
When examining a trial court’s dismissal of a case for want of prosecution, [an appellate court] will affirm the trial court’s findings of fact, unless the findings are manifestly wrong. “[An appellate court] will not disturb a trial court’s ruling on a dismissal for want of prosecution unless it finds an abuse of discretion.”

(Internal citations and footnote omitted).

¶ 15. Charles Barry filed suit against John Reeves in 2001 for alleged malpractice that Barry claimed had occurred in 1996. Id. at 693 (¶ 10). In 2007, Reeves filed a motion to dismiss for want of prosecution, which the Hinds County Circuit Court granted. Id. The circuit court found that Barry had failed to prosecute his case from 2004 to 2007 and dismissed the case. Id. The supreme court reversed the circuit court’s judgment and noted that “the record reveals that both parties actively participated in the discovery process by requesting, producing, and supplementing discovery until at least April 30, 2002.” Id. at (¶ 11). As to the period between 2004 and 2007, the supreme court noted that Barry had filed motions for settings and hearings and sent letters to opposing counsel during those years. Id. The supreme court found the trial judge’s factual findings were not supported by the record. Id. The supreme court noted that the trial court was manifestly wrong because it had omitted the actions of the plaintiff, Barry, during the relevant time period. Id. The supreme court ruled:

However, the mere fact that delay occurs in the prosecution of a case is not sufficient to warrant dismissal for want of prosecution. It must be clear from the record that the delay was the result of the plaintiffs failure to prosecute the claim, rather than extrinsic factors beyond the control of the plaintiff. See M.R.C.P. 41(b).
In the case at hand, it is far from clear that the delay in the prosecution of this case is attributable to Barry. Indeed, each period of inactivity was interrupted by a positive action by Barry to expedite the litigation. Specifically, after the receivership had ended, Barry filed the motion to lift the stay. After the next ten-month period of inactivity, Barry filed a motion to set trial, which has not been ruled on by the trial court. The next one-year period of inactivity came to an end when Barry sent a letter to the trial court, requesting a status conference and a trial date, and another period ended by Barry’s filing his motion for a status conference and a trial date. Finally, the last period of inactivity was terminated when Barry sent a letter to the Administrative Office of the Courts pursuant to Rule 15(a) of the Mississippi Rules of Appellate Procedure.
What is clear from the record is that significant, protracted delays in the prosecution of this case were beyond Barry’s control, including the near twenty-month delay attributable to [American National Lawyers Insurance Recip-rócalas receivership, the seventeen-month delay caused by defense counsel’s failure to respond to Barry’s letters, and the trial court’s failure to rule on Barry’s motion for a status conference. Accordingly, it cannot be said that there is a clear record establishing that Barry delayed the case’s prosecution.

Barry, 47 So.Sd at 694 (¶¶ 14-16).

¶ 16. The facts here are not similar to the facts of Barry. Instead, Avent was injured in an accident that occurred on July'2, 1994. Avent filed his lawsuit on November 8, 1996. The last “agreed” scheduling order required experts to be designated by January 30, 1998, and discovery to end by March 30, 1998. No significant action was taken from 1999 until 2006. Then, after Entergy’s motion to dismiss was filed on June 6, 2006, another three years lapsed before Avent filed a motion for a pretrial conference on February 9, 2009. Very little occurred from then until the circuit court dismissed En-tergy as a party on April 30, 2010, almost sixteen years after the accident.

¶ 17. Entergy’s motion to dismiss was not based solely on the passage of time. Entergy provided credible evidence that its ability to defend Avent’s claims had been prejudiced by the delay. Entergy claimed that available witnesses’ memories had faded over time. Entergy established that a significant number of witnesses were no longer available. Entergy offered affidavits of two legal assistants who testified about their unsuccessful efforts to locate the individuals identified in Avent’s May 15, 2006, discovery answers. One of the legal assistants testified she attempted to contact the individuals identified by Avent as having discoverable knowledge, and she was unable to contact eight of the nine witnesses identified.

¶ 18. To make matters worse, even though Avent responded to Entergy’s motion to dismiss on June 18, 2006, Avent took no further action to move this case to judgment for another two years. The circuit judge recognized this case was a clear example of an inexcusable delay by the plaintiff that had prejudiced the defendant’s efforts to defend the claims asserted. Avent offered no good cause for the delay. The circuit judge acknowledged Entergy’s problem with locating witnesses, fading witnesses’ memories, increased litigation costs, and the burden to the court system. The circuit judge did, in fact, consider the “clear record of delay ... by the plaintiff’ and determined “lesser sanctions would not serve the best interest of justice.” Barry, 47 So.3d at 692 (¶ 8). The circuit judge’s reasoning also indicated that he found this was an “egregious” case. Id.

¶ 19. We find no error in the circuit court’s judgment granting Entergy’s motion to dismiss. The facts here are distinguishable from Barry. Here, the “significant, protracted delays in the prosecution of this case were” not beyond Avent’s control. The circuit court considered the delay, the cause of the delay, and determined Entergy had been significantly prejudiced by the delay. The circuit court was within its discretion, and the dismissal was proper under Mississippi Rule of Civil Procedure 41(b). This issue lacks merit.

B. Summary Judgment in Favor of Sheraton

¶20. Avent also claims that the summary judgment was improperly granted as to Sheraton. We review summary judgment under a de novo standard of review. Clark Sand Co. v. Kelly, 60 So.3d 149, 154 (¶ 12) (Miss.2011). “Summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories[,] and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. at 154 (¶ 13) (quoting M.R.C.P. 56(c)).

¶ 21. Although Sheraton owned the construction site, where it was in the process of constructing a casino, it was not the general contractor on the site. According to the terms of Sheraton’s construction contract with Yates, Yates was “responsible for initiating, maintaining!!,] and supervising all safety precautions and programs in connection with the performance of the [c]ontract.” The same provision further stated that Sheraton was “not ... responsible in any way for providing a safe place for the performance of the [w]ork by [Yates], any [subcontractor or [s]ub-sub-contractor, or any of their respective agents or employees.” A separate provision further stated that Yates was required to “take reasonable precautions for [the] safety of, and shall provide reasonable protection to prevent damage, injury[,] or loss to ... employees on the [w]ork and other persons who may be affected thereby....” The contract also stated that Yates was responsible for providing all of the materials and equipment that were to be used on the site.

¶ 22. Toby Arnheim, Sheraton’s project manager responsible for the site, provided an affidavit that was considered by the circuit court. In it, Arnheim stated that he and Carl Bosworth, Sheraton’s facilities director, were the only Sheraton employees who were ever at the site. Arnheim stated that he was there simply to “ensure that the work complied with the [contract [documents.” Bosworth also supplied an affidavit; he stated that he was not responsible for any of the work that was performed outside the building. Bosworth further stated that no Sheraton employee was responsible for the safety procedures in place at the site. Mike Sesko, who worked for Yates in July 1994, provided an affidavit which confirmed that Yates had complete control over the site and that Sheraton had nothing to do with the installation of the power line in question or the general safety conditions on the site.

¶23. Avent acknowledges the above, but claims that Mississippi law prohibits an entity from delegating its duty to provide a safe work environment. However, this argument is undermined by numerous cases. In Magee v. Transcontinental Gas Pipe Line Corp., 551 So.2d 182, 183 (Miss. 1989), Transcontinental Gas Pipe Line Corporation (Transco) contracted with Singley Construction Company to connect a well to existing gas pipelines for Transco. As here, Transco’s contract with Singley explicitly made Singley responsible for the conditions on the site. Id. at 184-85. James Magee sued Transco and Singley after he was injured while working on the lines. Id. at 183. The Hinds County Circuit Court granted summary judgment on behalf of Transco, and Magee appealed. Id. at 184. Our supreme court found summary judgment was appropriate and affirmed the circuit court’s judgment; in so doing, the supreme court stated the following:

Where a party such as Transco contracts with another such as Singley to perform original construction or repair work and devolves upon the contractor the right and fact of control of the premises and the nature and details of the work, the owner has no liability for injuries experienced by the contractor’s workers where those injuries arose out of or were intimately connected with the work. Arising in varying factual settings, our authorities to this general effect are quite clear. The fact that Transco had employees that conducted periodic inspections on the work could change nothing.

Id. at 185-86 (emphasis added) (internal citations omitted). The Transco court recognized that an injured worker could recover against an owner like Transco if the owner “maintained substantial de facto control over those features of the work out of which the injury arose....” Id. at 186.

¶ 24. Like Transco, Sheraton contracted its responsibility for the site condition to Yates, its general contractor. Therefore, Sheraton has no liability for any injuries that Avent suffered as a result of the conditions on the construction site. We see no way to distinguish this case from Transco. There is nothing in the record to suggest that Sheraton maintained any sort of control over the power line from which Avent’s injuries arose. Accordingly, summary judgment was properly granted on Sheraton’s behalf, and this contention of error is without merit.

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

BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RUSSELL, J. LEE, C.J., AND MYERS, J., NOT PARTICIPATING.

IRVING, P.J.,

dissenting:

¶ 26. The majority finds that the Mississippi Supreme Court’s decision in Barry does not require reversal of the Tunica County Circuit Court’s dismissal of Avent’s complaint against Entergy for failure to prosecute. I disagree; therefore, I dissent. I would reverse the circuit court’s judgment of dismissal and remand this case for a trial.

¶ 27. In Barry, our supreme court addressed the propriety of dismissing a plaintiffs case for lack of prosecution, stating:

The courts of this state have the inherent power to dismiss a case for want of prosecution, and a trial court may dismiss a case on that basis for the sake of expediting justice and controlling its own docket. Hill v. Ramsey, 3 So.3d 120, 122 [ (¶ 6) ] (Miss.2009) ([ci]ting Cucos, Inc. v. McDaniel, 938 So.2d 238, 240 [ (¶ 5) ] (Miss.2006)). However, given the severity and finality of this sanction, which strips a litigant of his opportunity to pursue his cause of action, dismissal for failure to prosecute pursuant to Mississippi Rule of Civil Procedure 41(b) is “reserved for the most egregious cases.” Hillman v. Weatherly, 14 So.3d 721, 726 [ (¶ 17) ] (Miss.2009) (quoting Wallace v. Jones, 572 So.2d 371, 376 (Miss.1990)). A ruling dismissing the case with prejudice on this basis “will be affirmed only if there is a showing of a clear record of delay or contumacious conduct by the plaintiff, and where lesser sanctions would not serve the best interest of justice.” Id. (citing Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 181 [ (¶ 13) ] (Miss.1998)).... “Cases ⅛ which dismissals with prejudice have been affirmed on appeal illustrate that such a sanction is reserved for the most egregious of cases, usually cases where the requisite factors of clear delay and ineffective lesser sanctions are bolstered by the presence of at least one of the aggravating factors.’ ” Am. Tel. & Tel. Co., 720 So.2d at 181 [ (¶ 13) ] (quoting Rogers [u Kroger Co.], 669 F.2d [317,] 320 [ (5th Cir.1982) ]).
When examining a trial court’s dismissal of a case for want of prosecution, [an appellate court] will affirm the trial court’s findings of fact, unless the findings are manifestly wrong. Watson v. Lillard, 493 So.2d 1277, 1279 (Miss. 1986). “[An appellate court] will not disturb a trial court’s ruling on a dismissal for want of prosecution unless it finds an abuse of discretion.” Hill, 3 So.3d at 122 [ (¶ 6) ] ([quo]ting McDaniel, 938 So.2d at 240 [ (¶ 5) ] (citations omitted)).

Barry, 47 So.3d at 692-93 (¶¶ 8-9) (footnote omitted) (emphasis added).

¶ 28. I believe the facts in Barry are very analogous to the facts here. Therefore, I set forth the salient dates in both Barry and our case, beginning with Barry.

August 17, 2001: Charles Barry filed suit against John Reeves for alleged legal malpractice.
August 17, 2001-April 30, 2002: The parties engaged in discovery.
January 2003: Reeves’s insurer went into receivership in Tennessee, and a Tennessee chancery court issued an order enjoining litigation against the insurer.
February 20, 2003: The Hinds County Chancery Court accorded full faith and credit and comity to the Tennessee order.
March 14, 2003: Reeves filed a motion to stay the legal-malpractice proceedings against him until the conclusion of the receivership action.
June 10, 2003: The trial court granted Reeves’s motion.
August 31, 2004: Barry filed two motions: one seeking to lift the stay and the other requesting permission to amend his complaint.
November 30, 2004: The trial court heard argument on the motion to lift the stay.
December 1, 2004: The trial court granted the motion to lift the stay and restored the case to the active docket. The court also, denied the motion to amend the complaint.
September 30, 2005: Barry filed a motion to reopen discovery and set the case for trial.
November 2005: The trial court heard the motion to reopen discovery and for a trial setting but did not rule on it.
April 5, 2007: Barry sent a letter to the trial court, with a copy to opposing counsel, requesting a status conference.
April 10, 2007: In response to Barry’s letter, Reeves filed a motion to dismiss.
March 11, 2008: Barry filed a motion for a status conference.
February 2009: The trial court granted Reeves’s motion to dismiss.

Barry, 47 So.3d at 691-92 (¶¶ 3-6).

¶ 29. In the order dismissing Barry’s lawsuit, the circuit court explicitly found that Barry had failed to prosecute his case from 2004 to 2007. Id. at 693 (¶ 10). The trial court’s order of dismissal also stated:

The plaintiff had every opportunity to conduct and complete discovery from August [17], 2002, the date the complaint was filed, through June 10, 2003, the date this matter was stayed. A review of the file reveals that [the] plaintiff did not take advantage of that opportunity. Since the [s]tay was lifted on December 1, 2004[,] up to the filing of the herein motion to dismiss on April 10, 2007, this matter was not prosecuted. It has been over twelve years since the incident herein occurred. The facts and circumstances surrounding the prosecution of this matter require that the herein matter be dismissed.

Id. (footnote omitted).

¶ 30. In reversing the circuit court’s judgment, our supreme court noted that “the record reveals that both parties actively participated in the discovery process by requesting, producing, and supplementing discovery until at least April 30, 2002.” Id. at 693 (¶ 11). As to the period between 2004 and 2007, the supreme court noted that Barry had filed motions for settings and hearings and sent letters to opposing counsel during those years. Id. After the passage of ten months, Barry filed a motion to reopen discovery and for a trial setting. Id. at 691-92 (¶¶ 3-6). The circuit court heard argument on this motion within two months of it being filed; however, the court did not rule on it. Id. Seventeen months later, Barry sent a letter to the circuit court requesting a status conference. Id. During the twenty-seven months prior to Reeves filing his motion to dismiss, Barry filed a motion to reopen discovery, sent letters to opposing counsel seeking trial dates, and sent a letter to the circuit court requesting a status conference. Id.

¶ 31. Here, the record shows that Avent designated experts, responded to discovery, set a date for mediation, and exchanged correspondence with Entergy’s counsel from 2005 to 2010, before the circuit court granted Entergy’s motion to dismiss. It is true that little to nothing happened in this case between 1999 and 2005; however, Entergy chose not to file a motion to dismiss until mid-2006, at which time Avent had been actively prosecuting his case for almost a year and a half. Also, as in Barry, following the filing of the complaint, the parties engaged in significant discovery. From the date of the filing of the complaint in late 1996, Avent vigorously prosecuted the case until late 1998. Further, beginning in early 2006, both Avent and Entergy resumed participation in discovery, and again Avent vigorously prosecuted his case. The relevant time line is as follows:

February 2005: Avent filed his designation of experts.
January 11, 2006: Avent filed a supplemental response to Entergy’s interrogatories and designated Yerby L. Hughes Jr. as an additional expert.
March 29, 2006: Avent mailed a letter to Entergy, investigating whether the case could be disposed of through mediation.
April 10, 2006: Entergy responded, by - mail, to Avent’s March letter regarding mediation.
April 12, 2006: Avent set mediation for May 30, 2006.
April 12, 2006: Entergy confirmed mediation dates, but it questioned the . value of mediation due to the length of time that the case had been dormant.
April 18, 2006: Entergy filed a notice of service of its third set of interrogatories.
April 25, 2006: Entergy sent a letter to Avent cancelling mediation, requesting a new deposition, and expressing concern about the likelihood of finding crucial witnesses, given the age of the case.
May 9, 2006: Avent sent Entergy a letter with potential deposition dates.
June 6, 2006: Entergy filed its motion to dismiss based on want of prosecution; at the same time, Entergy filed an affidavit explaining its inability to locate witnesses.
February 9, 2009: Avent filed a motion for a pretrial conference.
February 10, 2009: Entergy filed a response to Avent’s motion for a pretrial conference.
May 26, 2009: Entergy filed a supplemental motion to dismiss.
September 23, 2009: Avent sent Enter-gy a proposed pretrial statement.
February 18, 2010: Entergy filed a notice of hearing on its motion to dismiss.
March 15, 2010: Entergy filed a supplement to its motion to dismiss, detailing its inability to locate certain witnesses.
April 30, 2010: The circuit court dismissed Entergy from Avent’s lawsuit.

¶ 32. It is noteworthy that as in Barry, the parties engaged in significant discovery in the years immediately following the filing of the complaint, but then there was a cessation of action on the part of the plaintiff. Also, as did the defendant in Barry, Entergy filed a motion to dismiss but did not bring it on for a hearing. In Barry, the order of dismissal was entered approximately twenty-two months after it was filed. Here, almost four years passed prior to the order of dismissal being entered. Moreover, the record reveals that Entergy did not even notice its motion to dismiss for a hearing until February 18, 2010, more than three years and ten months after it was filed. Further, as did the plaintiff in Barry, Avent continued to prosecute his case while the motion to dismiss was pending. In Barry, eleven months after the motion to dismiss was filed, the plaintiff filed a motion for a status conference. Here, Avent filed a motion for a pretrial conference four months after Entergy filed its motion to dismiss.

¶ 33. Given the “severity and finality” of dismissing a case for want of prosecution, it is my view that the circuit court erred in dismissing this case. There is nothing to show that any delay on Avent’s part was intentional or contumacious, nor is there anything in the record to show that any lesser sanctions were considered. While Entergy states in its motion to dismiss that it has been prejudiced by the inability to locate certain witnesses who have discoverable knowledge, it fails to state how that is the case. Not all information that is discoverable under our rules of civil procedure is necessarily relevant and admissible at trial. Entergy’s statement — that it will be prejudiced if the case goes forward — is at best self-serving. While Entergy presented the affidavits of two paralegals attesting to their inability to locate some witnesses with discoverable knowledge of the incident, it did not set forth what they would have been expected to testify to if called as witnesses. Moreover, the identities of these witnesses had been given to Entergy years prior to the filing of the motion to dismiss.

¶ 34. For the reasons presented, I dissent.

RUSSELL, J., JOINS THIS OPINION.

      . We note that the clerk’s docket does not include the clerk’s notice to the parties that the case may be dismissed for want of prosecution. M.R.C.P. 41(d). Rule 41(d)(2) is mandatory, and it requires the clerk to mail such notice twice a year. Under Rule 41(d), the clerk should have mailed the proper notices that the case was subject to dismissal for want of prosecution. It does not appear the clerk followed this Rule. The clerk’s omission has no affect on the outcome of this appeal. Nevertheless, we remind both clerks and trial judges that Rule 41(d)(2) is mandatory and the notice should be noted on the docket.

      . Sheraton is not included as a party to this appeal due to its failure to make an appearance in this case. We note that Avent served Sheraton's counsel at counsel’s 1998 address, at which counsel may no longer do business. However, neither Sheraton nor its counsel have provided an updated address to the circuit clerk during the intervening years. Consequently, Sheraton has neither appeared nor filed a brief in this case.


source: Caselaw Access Project

author: MAXWELL, J., CARLTON, J.,

license: Public Domain

text:
    Carson JOHNSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01330-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.
    Rehearing Denied May 8, 2012.
    Certiorari Denied Aug. 9, 2012.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   MAXWELL, J.,

for the Court:

¶ 1. A jury found Carson Johnson guilty of burglary of a dwelling and possession of a prohibited weapon by a convicted felon. The circuit judge sentenced Johnson to twenty years and ten years respectively for each charge, with the sentences ordered to run concurrently. Johnson appeals, alleging that a discovery violation, defective indictment, and fatally flawed jury instructions require reversal. We find no reversible error and affirm both convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the afternoon of January 7, 2009, Katherine Cestia stopped by the apartment of her flaneé, Lindsey Callón. The apartment is on the second floor of a building on Pearl Street in downtown Natchez, Mississippi. It shares a staircase with the law office of Barrett Martin. Cestia walked halfway up the stairs and saw a man on the landing outside of Callon’s apartment door. Cestia asked the man what he was doing. He told her he was going to Martin’s office to ask for work. Cestia saw the man collect something and walk down the stairs. As he walked past her, she noticed he was carrying one of Callon’s rifles, partially wrapped in a piece of cloth. Cestia told him, “You can’t take that. It doesn’t belong to you.” But the man responded, “I can take whatever I want,” then walked away.

¶ 3. Cestia called 911 and reported that “a black gentleman just walked into” her fiancé’s apartment “and stole a gun. He had baggy clothes. Shoes were untied, kind of flopping off. Scruffy, not well kept.” There was no sign of a break-in, but Cestia recalled the door to the apartment had been left unlocked that day because the housekeeper had just left. Approximately twenty minutes later, officers with the Natchez Police Department arrived and asked if Cestia could identify the burglar. The suspect was “pulled out of’ a patrol car, and Cestia identified Johnson as the man she had encountered on the staircase.

¶ 4. Johnson was not carrying anything when the police picked him up. But Lieutenant Craig Godbold testified that, immediately after Cestia identified him, Johnson told the police: “If you let me go, I will show you where the gun is.” Johnson directed the police to Memorial Park, approximately two blocks from Callon’s apartment, where the officers located the rifle under some trees. Cestia identified the gun as the one taken from Callon’s apartment — a Marlin .35 caliber rifle. Because it was deer season, the officers returned the gun to Callón after recording the rifle’s serial number.

¶ 5. An Adams County grand jury returned a two-count indictment against Johnson for Count I, burglary of a dwelling, and Count II, possession of a gun by a felon. The circuit judge ordered a mental evaluation of Johnson, who spent two months in the forensic unit at Whitfield State Hospital undergoing a competency evaluation. Johnson was found competent to stand trial, and his trial began on March 2, 2010.

¶ 6. The day before trial, the circuit judge held a hearing on Johnson’s motion to suppress the rifle. Johnson argued because the rifle was returned to Callón, Johnson could not examine the evidence. He also claimed returning the gun destroyed the chain of custody. At this hearing, the State discussed Johnson’s statement made to Lt. Godbold about showing them the location of the rifle if they would let him go. Defense counsel claimed to be surprised by the statement, which was not included in the discovery the State provided. So Johnson moved to suppress the statement as well. The circuit judge denied both motions but directed the State provide Lt. Godbold’s “Supplemental Report” the next morning. The trial judge gave defense counsel an opportunity that morning to interview Lt. Godbold and consider the statement’s impact on the defense. But he denied Johnson’s motion for a continuance and subsequent motion for a mistrial, finding the late disclosure of the statement did not prejudice Johnson’s insanity defense.

¶ 7. At trial, Dr. John Montgomery, a psychiatrist, testified that Johnson was able to discern right from wrong at the time of the offense. Dr. Montgomery explained that Johnson had been diagnosed with “schizophrenia in the residual phase which means ... some of the symptoms have improved over time, and he’s kind of reached a stable level with his mental illness.”

¶ 8. Johnson, against his counsel’s advice, chose to testify. He stated he knew right from wrong and denied burglarizing Callon’s apartment. He claimed he found the rifle discarded by the side of a building, picked it up, and took it to the park. He also admitted he knew he was not supposed to have a firearm because he is a convicted felon.

¶ 9. The jury found Johnson guilty on both counts. The circuit judge sentenced Johnson to twenty years for burglary of a dwelling and ten years for possession of a prohibited weapon by a felon. The sentences were ordered to run concurrently. Johnson filed a motion for a new trial, which was denied. He timely appealed.

ANALYSIS OF THE ISSUES

¶ 10. Johnson argues the circuit judge erred: (1) by not granting his motion for a continuance or later request for a new trial due to the failure to disclose Lt. Godbold’s supplemental report during discovery; (2) by not granting a directed verdict or imposing a lesser sentence for Count I because the indictment charged him with “business burglary,” not “dwelling burglary”; and (3) by not ordering a new trial on Count II because he was never charged with possessing a “firearm,” and the jury was not properly instructed on this element of the offense.

¶ 11. Because the discovery violation did not prejudice Johnson’s insanity defense and the evidence of his guilt was overwhelming, we find the circuit judge did not abuse his discretion by denying Johnson’s motion for a continuance. And we find no errors in either count of the indictment. The charging document clearly notified Johnson he was accused of burglary of a dwelling and possession of a firearm by a convicted felon — despite not tracking the exact language of either statute.

¶ 12. Though we find the jury instruction on the weapon-possession count erroneously omitted the element “possession of a firearm,” Johnson’s possession of the rifle was undisputed at trial and proven by his own admission. Because we find beyond a reasonable doubt the jury would have found Johnson guilty on Count II absent the erroneous instruction, we find the jury-instruction error to be harmless.

I. Discovery Violation

¶ 13. Rule 9.04(1) of the Uniform Rules of Circuit and County Court governs the procedure a trial court must follow when considering discovery violations. “A violation of Rule 9.04 is considered harmless error unless it affirmatively appears from the entire record that the violation caused a miscarriage of justice.” Payton v. State, 897 So.2d 921, 942 (¶ 67) (Miss.2003) (citations omitted) (finding no abuse of discretion in denying continuance based on URCCC 9.04(1)). “The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be grounds for reversal unless shown to have resulted in manifest injustice.” Id

¶ 14. Rule 9.04(I)’s directives to the trial court are dependent on when the court learns of the discovery violation. If “at any time prior to trial,” the court learns of the discovery violation, it has the discretion to permit the discovery of the withheld material, grant a continuance, or enter any other appropriate order. URCCC 9.04(1). But “[i]f during the course of trial,” the State attempts to introduce evidence not timely disclosed over the defendant’s objection, the trial court must:

1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs, or' other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or a mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.

Id. at 9.04(I)(l)-(2).

¶ 15. Admittedly, the State’s disclosure of Lt. Godbold’s supplemental report on the eve of trial was untimely. Thus, the mandatory considerations of Rule 9.04(1) were triggered. The circuit judge acted appropriately by giving Johnson’s counsel an opportunity to examine the statement and interview Lt. Godbold. URCCC 9.04(I)(1). Defense counsel was made aware of Johnson’s statement the day before trial, and upon receiving a copy of the supplemental report describing the statement, he was given a few hours to review the report. While the one-day notice does not necessarily remedy the discovery violation, the Mississippi Supreme Court has noted: “ ‘By no means does a [discovery] violation mean invariably that the defendant will be entitled to a continuance until the next term of court. There will no doubt be cases where postponement of a day or two, or in some cases even an hour or two, will suffice.’ These determinations necessarily depend on the nature and extent of each discovery violation.” Fulks v. State, 18 So.3d 803, 806 n. 3 (Miss.2009) (quoting Reuben v. State, 517 So.2d 1383, 1386 (Miss.1987)). Here, there is no evidence of misconduct on the State’s part in withholding the supplemental report. Nor is there evidence the State was concealing the fact they would be calling Lt. Godbold as a witness.

¶ 16. When Johnson sought a continuance and mistrial, the circuit judge denied Johnson’s motions after determining Johnson was not unfairly surprised or unduly prejudiced by the statement. URCCC 9.04(I)(2). The circuit judge found the only surprise in the supplementary report was Johnson’s statement, not his role in the recovery of the rifle by the police. The initial report showed that Johnson, immediately after being positively identified by Cestia, accompanied the officers to Memorial Park, where the rifle was located. And the circuit judge failed to see how the statement prejudiced Johnson’s ability to put on his insanity defense, requiring a continuance.

¶ 17. “When a prosecutor reveals evidence on the eve of trial,” a continuance is only mandatory “when that evidence completely undercuts the defense’s theory of the case.” Fulks, 18 So.3d at 805 (¶ 10). Here, the circuit judge could not discern how evidence that Johnson knew the location of the gun undercut his defense that he did not know right from wrong at the time of the crime. The circuit judge noted that Johnson would be able to put on his insanity defense during his case-in-chief as well. Yet the record shows the defense presented no evidence during its case that Johnson was legally insane at the time of the crime. Thus, like the circuit judge, we fail to see how the admission of the statement undercut Johnson’s entire defense and rendered his trial preparation worthless.

¶ 18. After reviewing the record and assessing the overwhelming evidence of Johnson’s guilt, we find no manifest injustice in denying a continuance or mistrial. Even absent the challenged statement, there was eyewitness testimony placing the rifle in Johnson’s hands. Johnson even personally accompanied the police to the spot where he had hidden the rifle. He also admitted at trial that he possessed the firearm.

¶ 19. Based on this overwhelming evidence and because the circuit judge followed the appropriate remedial procedures in Rule 9.04(1), we find no abuse of discretion and certainly no reversible error in its holding the discovery violation did not require a continuance or mistrial.

II. Count I — Burglary of a Dwelling House

¶ 20. Johnson claims Count I of his indictment, and the related jury instruction, were both ambiguous as.to the crime charged because, while his indictment cited Mississippi’s dwelling-house-burglary statute and included the elements of that crime, it also included a phrase from the “business burglary” statute. He argues his insufficient notice of the charged offense requires reversal or sentencing under the lesser crime of burglary of a business. In the alternative, he claims the indictment’s inclusion of this language saddled the State with an additional element to Count I that was neither proven at trial nor included in the jury instructions.

A. Indictment

¶ 21. We begin by noting that, though Johnson did not object to his indictment at trial, “challenges to the substantive sufficiency of an indictment are not waivable ... [and] may be first raised at anytime, including on appeal.” State v. Berryhill, 703 So.2d 250, 254 (¶ 17) (Miss.1997). Because Johnson’s allegation that the indictment failed to charge him with a crime raises a substantive challenge, we find no procedural bar to considering his claim. Id. (citing Copeland v. State, 423 So.2d 1333 (Miss.1982)).

¶ 22. Mississippi criminalizes the burglary of both “dwelling houses” and “other buildings” (i.e., businesses) but the burglary of a dwelling house carries a higher potential sentence. Compare Miss.Code Ann. § 97-17-23(1) (Supp.2011) (burglary of a dwelling house, “punish[able] by commitment to the custody the Mississippi of the Department of Corrections for not less than three (3) years nor more than twenty-five (25) years”) with § 97-17-33(1) (Rev. 2006) (burglary of a business, punishable by “imprison[ment] in the penitentiary not more than seven (7) years”).

¶ 23. The crime of burglary of a dwelling “has two essential elements, the unlawful breaking and entering [of a dwelling house] and the intent to commit some crime once entry has been gained.” Winston v. State, 479 So.2d 1093, 1095 (Miss.1985) (citations omitted); see also Miss.Code. Ann. § 97-17-23(1). By comparison, the elements of the crime of burglary of “other buildings” differ slightly. It requires “breaking and entering, in the day or night, any shop, store, booth, tent, warehouse, or other building or private room or office therein ... in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony[.]” Miss.Code Ann. § 97-17-33(1).

¶ 24. Count I of Johnson’s indictment charged that he:

did wilfully, unlawfully, feloniously and burglariously break and enter the dwelling house of Lindsey Callón wherein goods, merchandise and other valuable items were kept and stored, with the felonious intent of ... [Johnson] ... to wilfully, unlawfully, feloniously and bur-glariously take, steal and carry away said goods, merchandise and other valuable items and did in fact take, steal and carry away a rifle, and the personal property of Lindsey Callón, found and kept in said dwelling house.

(Emphasis added.) The indictment cited section 97-17-23, the dwelling-house burglary statute. It also clearly charged Johnson “did ... burglariously break and enter the dwelling house of Lindsey Cal-lón.”

¶ 25. Johnson takes issue with the inclusion of the above-italicized phrases, which are listed only in section 97-17-33(1), the other-buildings burglary statute, and not the dwelling-house burglary statute. Johnson claims the ambiguity over which statute he was being charged forced him to go to trial without notice of the charges against him. Alternatively, he argues the ambiguity requires he be re-sentenced under the lesser statute, citing Jenkins v. State, 888 So.2d 1171, 1174 (¶¶8-9) (Miss.2004).

¶ 26. We disagree. The “purpose of an indictment is to provide the accused reasonable notice of the charges against him so that he may prepare an adequate defense.” Brawner v. State, 947 So.2d 254, 265 (¶ 31) (Miss.2006) (citing Brown v. State, 890 So.2d 901, 918 (¶ 61) (Miss.2004)). An indictment must contain “the essential facts constituting the offenses charged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06. Any potential ambiguity created by including the phrase “goods, merchandise and other valuable items” is negated by the indictment’s express reference to section 97-17-23 and the specific charging language that Johnson broke into a “dwelling house.” This case is distinguishable from Jenkins, where “no particular statute [was] referenced in the text of the indictment.” Jenkins, 888 So.2d at 1174 (¶ 9). There is no obligation that the State prosecute under the statute with the lesser penalty; it “may choose to proceed under either statute so long as the choice is clear and unequivocal.” Id. at 1174 (¶ 8) (citing Cumbest v. State, 456 So.2d 209, 222 (Miss.1984)). Here, the State made its choice clear by referencing section 97-17-23(1) in the indictment. Thus, the State was not obligated to try — and the circuit judge was not obligated to sentence — Johnson for burglary of other buildings or a business.

¶ 27. We further find the indictment’s language and its citation to the code section for burglary of a dwelling house fully notified Johnson of the offense charged. Indeed, the indictment twice referenced Callon’s “dwelling house.” And the charging document included all essential elements of dwelling-house burglary — breaking and entering a dwelling house with the intent to commit a crime. Thus, we find no reversible error in Count I.

B. Jury Instruction

¶28. Johnson alternatively argues the inclusion of the additional language about “goods, merchandise and other valuable items” created another element to the crime, which was neither proven at trial nor included in the jury instructions.

¶ 29. We find, in this instance, that this phrase is mere surplusage, which could have easily been removed from the indictment without changing the substance of the dwelling-house burglary charge. See Lee v. State, 944 So.2d 35, 38-41 (¶¶ 5-23) (Miss.2006) (addressing what is “surplus-age” and when it does not become a substantive element of the offense, distinguishing Richmond v. State, 751 So.2d 1038, 1046 (¶ 19) (Miss.1999)).

¶ 30. Johnson argues that because the State did not amend the indictment, the “goods, merchandise and other valuable items” language became an additional element the State had to prove. Richmond, 751 So.2d at 1046 (¶ 19). But he does not attack the sufficiency of the State’s evidence, which proved through Callon’s testimony that Callón stored his rifle, a “valuable item,” in his dwelling house. Nor does he discount Cestia’s testimony that Johnson stole the valuable item from a dwelling house. Thus, even were this language not surplusage, which we find it is here, Johnson cannot show the State failed to meet its evidentiary burden.

¶ 31. Further, Johnson failed to object to the companion dwelling-house jury instruction, S-l, which unlike the indictment, did not include the “goods, merchandise and other valuable items” language. See Rubenstein v. State, 941 So.2d 735, 774 (¶ 169) (Miss.2006) (holding failure to object to jury instruction that constructively amended the indictment waived argument on appeal). This procedural bar notwithstanding, we first point out that, while “the jury should be instructed in language that tracks the indictment[, the] failure of the instruction to contain this language does not necessarily render it fatally defective.” Richmond, 751 So.2d at 1046 (¶ 21) (citing Duplantis v. State, 708 So.2d 1327, 1344 (¶ 75) (Miss.1998)). Second, the instruction included the statutory elements of dwelling-house burglary — (1) breaking and entering Callon’s dwelling house (2) with the intent commit theft.

¶ 32. Thus, we affirm Johnson’s conviction on Count I.

III. Count II — Possession of a Firearm by a Convicted Felon

¶ 33. Johnson next contends the firearm-possession charge in Count II fails to describe a statutory crime, and the jury instruction tracks neither the statute nor the indictment.

A. Indictment

¶ 34. In Mississippi, it is “unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm.... ” Miss.Code Ann. § 97-37-5(1) (Supp.2011) (emphasis added). Count II of Johnson’s indictment alleged that Johnson “did wil-fully, unlawfully, and feloniously possess a gun, a deadly weapon, after having been convicted of a felony under the laws of the State of Mississippi_” (Emphasis added.)

¶ 35. Johnson argues that the word “gun” in the indictment is ambiguous and not synonymous with the word “firearm” used in the offense’s statutory definition. Therefore, Johnson urges a felon who possesses a “gun” has not necessarily committed an indictable offense. Johnson also claims the statute does not subject a felon in possession of a non-enumerated “deadly weapon” to criminal liability.

¶ 36. Though section 97-37-5(1) prohibits felons from possessing a litany of enumerated weapons, Johnson’s indictment clearly notified him he was being charged with possessing only one weapon — a gun. Mississippi Code Annotated section 41-29-152(2) (Rev.2009), which enhances the penalty for drug possession if the offender also possesses a firearm, defines a firearm as “any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” While Johnson is correct that the term “gun,” may at times describe non-qualifying weapons, such as toy guns, BB guns, and the like, here, the indictment described the gun as a deadly weapon and, thus, sufficiently notified Johnson his charges concerned possessing a firearm. Indeed, he had just been arrested for stealing a rifle from Callon’s apartment, which gave rise to his burglary charge in Count I.

¶ 37. We find Count II sufficiently notified Johnson he was being charged with possessing a firearm.

B. Jury Instruction

¶ 38. Johnson also contends jury instruction S-3 neither tracks the indictment nor the statutory language in section 97-37-5. S-3 instructed the jury to consider whether Johnson “did possess a deadly weapon,” but unlike the indictment, it did not include the word “gun.” Johnson claims he is entitled to a new trial because the jury convicted him of a crime without considering a necessary element of the offense — possession of a “firearm.”

¶ 39. It is not a crime for a felon to possess any “deadly weapon,” only the spe-cifíc wéapons listed by statute, namely, “any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm_” Miss.Code Ann. § 97-37-5(1) (emphasis added). So, we find S-3 did mis-describe the element regarding what Johnson had to possess to incur criminal liability.

¶ 40. As with S-l, the defense did not object at trial to S-3. While Johnson asks us to find plain error, at most we see harmless error, not warranting reversal.

¶ 41. The United States Supreme Court has recognized that “most constitutional errors can be harmless.” Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). And in Neder v. United States, 527 U.S. 1, 8-10, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), the Supreme Court held that a district court’s failure to charge the jury on the element of “materiality” in a tax-fraud case was harmless error. The Court concluded that “a jury instruction that omits an element of the offense ... differs markedly from the constitutional violations we have found to defy harmless-error review.” Id. at 8, 119 S.Ct. 1827. Unlike defects that affect the trial framework by infecting the entire trial process, “an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Id. at 9, 119 S.Ct. 1827.

¶ 42. The Supreme Court in Neder acknowledged it “ha[s] often applied harmless-error analysis to cases involving improper instructions on a single element of the offense.” Id. at 9-10, 119 S.Ct. 1827 (citing Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991); Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (per curiam); Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987)). In other cases, the Supreme Court has recognized that improperly omitting an element from the jury can “easily be analogized to improperly instructing the jury on an element of the offense, an error which is subject to harmless-error analysis.” Johnson v. United States, 520 U.S. 461, 469, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citations omitted); see also California v. Roy, 519 U.S. 2, 5, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (per curiam).

¶ 43. To determine whether omission of an element from a jury instruction is harmless, the proper test is “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Neder, 527 U.S. at 15, 119 S.Ct. 1827 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824,17 L.Ed.2d 705 (1967)). When an appellate court “concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” Id. at 17, 119 S.Ct. 1827. “[Tjhis approach reaches an appropriate balance between ‘society’s interest in punishing the guilty and the method by which decisions of guilt are to be made.’ ” Id. at 18, 119 S.Ct. 1827 (quoting Connecticut v. Johnson, 460 U.S. 73, 86, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) (plurality opinion)).

¶44. The Mississippi Supreme Court has drawn from Neder in holding that failure to instruct the jury on an element of capital murder is subject to harmless-error analysis. See Kolberg v. State, 829 So.2d 29, 51 (¶¶ 39-40) (Miss.2002) (affirming capital-murder conviction even though jury instruction did not define the underlying felony). And this court, relying on Kolberg, has affirmed an aggravated-assault conviction, under harmless-error analysis, where a circuit judge wholly failed to instruct the jury on the elements of aggravated assault. Conerly v. State, 879 So.2d 1101, 1108 (¶¶ 25-26) (Miss.Ct.App.2004).

¶ 45. Mississippi Code Annotated section 97-37-5(1), criminalizes (1) the possession of firearms (2) by persons who have been convicted of a state or federal felony. Examining the second element first, there is absolutely no dispute that Johnson had been convicted of a felony at the time he allegedly possessed the rifle. The parties stipulated to this based on Johnson’s prior sexual-battery conviction. As to the firearm-possession element, we find beyond a reasonable doubt this element was uncontested and supported by the overwhelming weight of the evidence. In addition to eyewitness and law-enforcement testimony, Johnson admitted, while on the stand, that he possessed the rifle. The Marlin .35 caliber rifle was introduced into evidence and positively identified as the one taken from Callon’s apartment and shown to police by Johnson in Memorial Park.

¶ 46. Based on the stipulation to Johnson’s felony status and the unchallenged and overwhelming evidence Johnson possessed the rifle, a proven firearm, we find beyond a reasonable doubt that the omission of the complained of element from jury instruction S-2 did not contribute to the verdict. Finding no fundamental unfairness, we affirm Johnson’s conviction on Count II.

¶ 47. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY OF CONVICTION OF COUNT I, BURGLARY OF A DWELLING, AND SENTENCE OF TWENTY YEARS; AND COUNT II, POSSESSION OF A WEAPON BY A CONVICTED FELON, AND SENTENCE OF TEN YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS AND RUSSELL, JJ„ CONCUR. CARLTON, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, C.J., AND RUSSELL, J. MYERS, J., NOT PARTICIPATING.

CARLTON, J.,

specially concurring:

¶ 48. I specially concur with the majority’s opinion.

¶ 49. A jury in the Adams County Circuit Court convicted Carson Johnson of Count I, burglary of a dwelling, and Count II, possession of a weapon by a convicted felon. On appeal, Johnson alleges a discovery violation, and he claims that defective indictments and variances with jury instructions on Counts I and II require reversal. The majority opinion finds no error with the issues raised as to Count I and, thus, affirms Johnson’s conviction and sentence for Count II, burglary of a dwelling. I concur with this holding. The majority also affirms Carson Johnson’s conviction and sentence for possession of a weapon by a convicted felon, finding harmless error in the grant of jury instruction S-3. I also concur with this holding, and I write separately to address this particular assignment of error raised by Johnson in his appeal.

¶ 50. Johnson claims he is entitled to a new trial because the jury convicted him of a crime without ever considering one element of the offense — possession of a “firearm.” Count II of Johnson’s indictment charged Johnson with violating Mississippi Code Annotated section 97-37-7 (Supp. 2011), and the indictment states he “did wilfully, unlawfully, and feloniously possess a gun, a deadly weapon, after having been convicted of a felony under the laws of the State of Mississippi....” (Emphasis added.).

¶ 51. Then, with respect to Count II of the indictment, jury instruction S-3 states:

Carson Johnson has been charged in Count II of the indictment with the felony offense of possession of a weapon by [a] convicted felon.
If you find from the evidence in this case beyond a reasonable doubt that Carson Johnson:
1. on or about January 7, 2009,
2. in Adams County, Mississippi,
3. did possess a deadly weapon,
4. when he had previously been convicted of a felony crime[,] then you shall find the defendant guilty of possession of a weapon by [a] convicted felon.
If the prosecution has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find Carson Johnson not guilty of possession of a weapon by [a] convicted felon.

Johnson contends jury instruction S-3 neither tracks the indictment nor the defining statute for Count II’s offense because the instruction refers to a deadly weapon instead of a firearm. However, at trial, Johnson did not dispute possessing a firearm; and in his testimony, Johnson admitted that he possessed the rifle and that he was a convicted felon at the time. Johnson also testified he knew that due to his status as a convicted felon, the law prohibited him from possessing the rifle.

¶52. I acknowledge that “[fjailure to submit to the jury the essential elements of the crime is ‘fundamental’ error.” Hunter v. State, 684 So.2d 625, 636 (Miss.1996). However, I find no error in the jury instruction considering all the jury instructions given as a whole. Hornburger v. State, 650 So.2d 510, 515 (Miss.1995) (Improper jury instruction held to be harmless error because other instructions informed the jury of the State’s burden of proving every element beyond a reasonable doubt.); see also Berry v. State, 728 So.2d 568, 571 (¶ 9) (Miss.1999). No fundamental or reversible error occurred herein because Johnson’s possession of the firearm was not in dispute before the jury; Johnson admitted at trial that he possessed the rifle. Moreover, instruction S-3 cites the applicable code section for the felony offense of possession of a weapon by a convicted felon. The statute characterizes a gun as a deadly weapon. Thus, Johnson was provided sufficient notice and a reasonable description of the charges against him. Lee v. State, 944 So.2d 35, 38 (¶ 7) (Miss.2006). At the beginning of the trial, Johnson stipulated to being a convicted felon; and in his testimony, Johnson admitted he knowingly possessed the gun. The jury instruction should be evaluated in light of all the instructions given and in context of the evidence in dispute in the case. Newell v. State, 49 So.3d 66, 73 (¶ 20) (Miss.2010).

¶ 53. In the present case, I submit that no abuse of discretion or injustice occurred. See id. The jury instruction given by the trial judge did not materially change the charge against Johnson; instead, the instruction included introductory language identifying the charge. See Decker v. State, 66 So.3d 654, 656 (¶ 5) (Miss.2011). A jury-instruction variance from the language of the indictment “must be material to accurately categorize an instruction as error.” Williams v. State, 445 So.2d 798, 806 (Miss.1984). In this case, the indictment language at issue also did not materially alter the charge alleged in the indictment and did not refer to any alleged facts of which the defendant possessed no notice. Id.

¶ 54. During Johnson’s testimony, he explained that he wanted to defend himself regarding the possession charge. Johnson denied stealing the rifle from Lindsey Cal-lon’s apartment; instead, Johnson explained that he found the rifle in the trash beside a restaurant. Johnson disputes the testimony of Katherine Cestia, Callon’s fi-ancée, that she saw Johnson leaving Cal-lon’s apartment with the rifle. Johnson admitted that he took the rifle to “see was it good,” but he explained that he could not get the gun to shoot and intended to take the gun to his house to put some WD-40 on it. Johnson testified that after the rifle failed to work properly, he then took the rifle to the park and threw it away. He later led the police to the rifle.

¶ 55. During his testimony, Johnson admitted he knew, as a convicted felon, that he was not supposed to have a weapon. In vehemently contesting the charge of burglary, Johnson argued that he simply found the rifle at issue in the trash, and he did not actually go into a store and purchase it. Thus, the record thus reflects that Johnson’s own testimony shows he admitted that he possessed the rifle on the day of the burglary. Johnson never denied possessing the rifle; he simply denied the State’s claim that he had stolen the weapon from the apartment. In addition, Callón identified the gun recovered from the park as his personal property that he kept inside of his apartment on January 7, 2009, the date of the burglary. As stated, the defense stipulated Johnson was a convicted felon, and the State produced an eyewitness, Cestia, who testified that she saw Johnson with the gun in his possession leaving her fiancé’s apartment — the same gun she had previously seen inside Callon’s apartment.

¶ 56. In this case, I find that no uncertainty existed due to Johnson’s own testimony admitting that he possessed the rifle. Therefore, Johnson’s possession of the rifle was hot at issue or controversy. His status as a prior-convicted felon was also not at issue before the jury due to the defense’s stipulation as to Johnson’s status, as well as Johnson’s admission to such on the stand. Jury instruction S-3 contained introductory language explaining that Johnson had been indicted for the felony offense of possession of a weapon after being convicted of a felony, and Johnson stipulated to such status and testified at trial to possessing the rifle. In accordance with Lannom v. State, 464 So.2d 492, 496 (Miss.1985), since possession of the rifle was not at issue, and since Johnson did not object at trial to the instruction as given, then this assignment of error is procedurally barred.

¶ 57. Therefore, I specially concur with the majority’s opinion affirming Johnson’s conviction and sentence regarding Count II, possession of a firearm by a convicted felon.

LEE, C.J, AND RUSSELL, J., JOIN THIS OPINION.

      . Johnson has an extensive history of mental illness, having been hospitalized and committed for mental-health issues numerous times since his early teenage years, for which he has been on a regime of anti-psychotic and anti-depressant drugs.

      . "[BJreaking and entering in the day or night time, any building within the curtilage of a dwelling house, not joined to, immediately connected with or forming a part thereof” is also a violation of Mississippi Code Annotated section 97-17-33(1).

      .Jury instruction S-l reads:
      Carson Johnson has been charged in Count I of the indictment with the felony offense of burglary of a dwelling.
      If you find from the evidence in this case beyond a reasonable doubt that Carson Johnson:
      1. on or about January 7, 2009,
      2. in Adams County, Mississippi,
      3. did break and enter,
      4. the home of Lindsey Callón, being a dwelling house;
      5. with the intent to commit a crime therein, namely theft;
      then you shall find the defendant guilty of burglary of a dwelling.
      If the prosecution has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find Carson Johnson not guilty of burglary of a dwelling.

      .Jury instruction S-3 states:
      Carson Johnson has been charged in Count II of the indictment with the felony offense of possession of a weapon by [a] convicted felon.
      If you find from the evidence in this case beyond a reasonable doubt that Carson Johnson:
      1. on or about January 7, 2009,
      2. in Adams County, Mississippi,
      3. did possess a deadly -weapon,

      4. when he had previously been convicted of a felony crime;
      then you shall find the defendant guilty of possession of a weapon by [a] convicted felon.
      If the prosecution has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find Carson Johnson not guilty of possession of a weapon by [a] convicted felon.
      (Emphasis added.)

      . See Summerall v. State, 41 So.3d 729, 737 (¶¶ 28-32) (Miss.Ct.App.2010) (reversing defendant’s conviction for possession of a "dirk knife” by a convicted felon because evidence was insufficient to prove knife in defendant’s possession was a "dirk knife” prohibited by section 97-37-5).

      . The Supreme Court has found an error to be "structural” and, thus, subject to automatic reversal, only in a "very limited class of cases.” Johnson v. United States, 5200 U.S. 461, 468-69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing Gideon v. Wain-wright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (complete denial of counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of self-representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction to jury)).

      . This prohibition applies "unless the person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the United States Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.” Miss.Code Ann. § 97-37-5(1).

      . I note that, generally, jury instructions are within the discretion of the trial court, so our standard of review on appeal is abuse of discretion. Newell v. State, 49 So.3d 66, 73 (¶ 20) (Miss.2010). In Newell, the Mississippi Supreme Court stated that jury instructions actually given at trial must be read as a whole. Id. When read as a whole, "if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. In addition, a defendant is entitled to have every legal defense he asserts submitted as a factual issue for a determination by a jury under the proper instruction of the court. Id. at 74 (¶ 20); see also Thomas v. State, 75 So.3d 1112 (¶ 9) (Miss.Ct.App.2011).

      . The record reflects that other jury instructions, including defense instructions like D-10 and D-ll, referred to his indicted offense of possession of a weapon by a felon.

      . In Williams, 445 So.2d at 806, the indictment charged Walter Williams Jr. with taking a money box, a billfold, and some money. The jury instruction, however, directed the jury to determine whether Williams took the money box, billfold, money, or anything of value. Id. The Mississippi Supreme Court found that although a variance from the indictment occurred, the jury instruction did not constitute error. Id. The supreme court also noted that the variance did not materially alter the charge alleged in the indictment or refer to alleged facts of which the defendant had no notice. Id. at 806-07.