author: MAXWELL, J.,

text:
    Keith SPEARMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00281-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    Rehearing Denied Nov. 1, 2011.
    Certiorari Denied Feb. 16, 2012.

      Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Keith Spearman challenges his auto-theft conviction claiming his indictment was fatally defective for failing to charge two essential elements of the crime. Although Spearman’s indictment did not track the language of the current version of the auto-theft statute, we find it contained the essential elements of the offense. We also find the jury’s guilty verdict is not against the overwhelming weight of the evidence. Therefore, we affirm Spearman’s conviction and sentence.

FACTS

¶ 2. On February 9, 2009, Fleming Lumber Company (Fleming) took one of its trucks to Cleveland Truck Repair (CTR) to have the heater repaired. The red Chevrolet dump truck had a standard “stick-shift” manual transmission and bore the company’s name “Fleming” on each side. The mechanic working on the truck left CTR around 4:30 p.m. that evening. When he returned at approximately 7:00 a.m. the next morning, he discovered Fleming’s truck was missing.

¶ 3. That same morning, February 10, 2009, Tony Skellion was checking out at a convenience store in Ruleville, Mississippi. He saw Spearman enter the store and watched Spearman walk up to the counter next to him, talk to the cashier, and then leave. Skellion testified that Spearman got into the Fleming truck and drove away. James Archibald was also in the Ruleville store. He testified that Spear-man asked him for a ride to Mound Bayou. Archibald told him “no” and left the store. Surveillance video from the store confirmed Spearman, Skellion, and Archibald had been in the store that morning.

¶4. Shawntrece Williams was working that morning at a convenience store in nearby Drew. She saw the red Fleming truck park in front of one of the gas pumps. Spearman entered the store but did not purchase any gas. Williams saw Spearman leave the store and talk to someone in the parking lot. Then Spear-man got into the Fleming truck and drove away.

¶ 5. Later that morning, Skellion saw the same Fleming truck driving recklessly on the highway in Drew and notified the company. Fleming checked on the truck and learned it was missing from the CTR lot. Fleming’s president, Marion Jordan, called the Cleveland and Drew Police Departments. She testified Fleming had not given anyone permission to remove the truck from CTR’s lot.

¶ 6. Chris Denton was also in Drew that morning and noticed the Fleming truck parked on the side of Highway 49. He saw Spearman hanging out of the window of the truck. Spearman attempted to flag Denton down, but Denton kept going and parked at the gas station. Before Denton got out of his vehicle, Spearman, who had followed Denton in the Fleming truck, approached his car and asked if Denton had any drugs. The police then showed up, and Spearman ran away on foot.

¶ 7. Two days later, the Cleveland Police Department arrested Spearman for auto theft. Officer Bryan Goza transported Spearman from the preliminary hearing back to the Cleveland Jail. Spearman voluntarily complained to Officer Goza about being charged with auto theft. Spearman stated: “It can’t be that way, because when I walked by and pulled up the handle, the door was unlocked. Keys were inside. It’s basically joyridin’.” Officer Goza told him joyriding was now a felony.

¶ 8. At trial, Spearman denied stealing the truck. His defense hinged on testimony from two of his aunts and a cousin. The three family members testified they had never seen Spearman drive a stick-shift vehicle and their family’s vehicles have always had automatic transmissions.

¶ 9. The jury found Spearman guilty of auto theft. The circuit court sentenced him to five years’ imprisonment and five years of post-release supervision. After an unsuccessful post-trial motion, Spear-man timely appealed.

DISCUSSION

I. The Indictment

¶ 10. Spearman argues that because his indictment did not contain two phrases found in the auto-theft statute — (1) “without authority” and (2) “with intent to either permanently or temporarily convert it or to permanently or temporarily deprive the owner of possession or ownership”— his indictment was fatally defective.

¶ 11. Rule 7.06 of the Mississippi Uniform Rules Circuit and County Court is the “starting point” for determining whether an indictment is sufficient. See Harrison v. State, 722 So.2d 681, 686 (¶ 21) (Miss.1998). Rule 7.06 provides:

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. An indictment shall also include the following:
1. The name of the accused;
2. The date on which the indictment was filed in court;
8. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”

URCCC 7.06.

¶ 12. Whether an indictment is fatally defective is a question of law, which this court reviews de novo. Gilmer v. State, 955 So.2d 829, 886 (¶ 24) (Miss.2007). An indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense. Id. at 836-37 (¶ 24) (citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Love v. State, 211 Miss. 606, 611, 52 So.2d 470, 472 (1951)).

A. The Statute

¶ 13. An indictment for a statutory crime does not have to use “the exact descriptive language of the statute.” Gilmer, 955 So.2d at 837 (¶ 26) (quoting Price v. State, 898 So.2d 641, 654 (¶32) (Miss.2005)). “Where the language used in the indictment is sufficiently specific to give notice of the act made unlawful, and exclusive enough to prevent[ ] its application to other acts, it is sufficient.” Id.; see also Winters v. State, 52 So.3d 1172, 1174-75 (¶ 7) (Miss.2010) (holding an indictment is sufficient “if the crime can be substantially described without using [the exact words of the statute]”).

¶ 14. Mississippi’s auto-theft statute provides in part:

Any person who shall, willfully and without authority, take possession of or take away a motor vehicle of any value belonging to another, with intent to either permanently or temporarily convert it or to permanently or temporarily deprive the owner of possession or ownership ... shall be guilty of a felony and shall be punished by commitment to the Department of Corrections for not more than ten (10) years.

Miss.Code Ann. § 97-17-42(1) (Supp.2010).

¶ 15. The indictment returned by the grand jury against Spearman complies with all requirements of Rule 7.06. The top of Spearman’s indictment specifically informed him he was charged with “AUTO THEFT MCA Section 97-17-42.” It further alleged, “Keith Spearman ... did, wilfully, unlawfully and feloniously take possession of or take away a motor vehicle, a red Chevrolet commercial truck, the property of Fleming Lumber Co., Inc., a corporation, d/b/a Fleming Lumber Co.”

B. “Without Authority”

¶ 16. Spearman first argues, because his indictment did not contain the phrase “without authority,” it lacked an essential element of auto theft. We recognize one element of auto theft is that the taking away of another’s motor vehicle be without authority. Miss.Code Ann. § 97-17-42(1). See Acker v. State, 793 So.2d 691, 694 (¶ 11) (Miss.Ct.App.2001) (finding the State presented sufficient evidence to prove the “without authority” element of auto theft). But we disagree with Spear-man’s assertion that the indictment is defective because it did not contain the exact phrase “without authority.”

¶ 17. The indictment charged that Spearman “did, wilfully, unlawfully and fe-loniously take possession of or take away” Fleming’s truck. This court has held that the terms “willfully/unlawfully and felo-niously” are synonymous with “without authority.” Champluvier v. State, 942 So.2d 172, 182-83 (¶ 42) (Miss.Ct.App.2005), rev’d on other grounds, 942 So.2d 145 (Miss.2006). And the Mississippi Supreme Court has instructed that “[s]o long as from a fair reading of the indictment, taken as a whole, the nature and cause of the charge against the accused are clear, the indictment is legally sufficient.” Harrison v. State, 722 So.2d 681, 687 (¶22) (Miss.1998) (citing Henderson v. State, 445 So.2d 1364, 1368 (Miss.1984)). By specifically informing Spearman he was charged with auto theft, citing the corresponding code section, and utilizing the linguistic equivalent of the essential “without authority” element, we find the State sufficiently notified Spearman his alleged possession or taking away of Fleming’s truck was unauthorized.

C. “With Intent to Either Permanently or Temporarily Convert”

¶ 18. Spearman next argues that, because the State did not charge that his taking away or possession of the Fleming truck was done “with intent to either permanently or temporarily convert” the vehicle, his indictment is fatally defective. We disagree.

¶ 19. In 2007, the Legislature amended section 97-17-42, adding the phrases “of any value” and “with intent to either permanently or temporarily convert it or to permanently or temporarily deprive the owner of possession or ownership.” Miss. Code Ann. § 97-17-42(1). Spearman argues, in amending section 97-17-42, the Legislature added additional essential elements to the crime of auto theft. But as the title to the bill amending section 97-17-42(1) explains, the purpose of the amendment was “to clarify that the taking away of any motor vehicle, including joyriding, will constitute a felony.” 2007 Miss. Laws, Ch. 464 (H.B.857). Thus, by inserting the phrases “of any value” and “with intent to either permanently or temporarily convert,” the Legislature did not narrow the statute by creating additional required elements of proof. Rather, it broadened the application of section 97-17-42 by clarifying that any unauthorized possession or taking of another’s vehicle, no matter how brief, offends the felony auto-theft statute.

¶ 20. In Allman v. State, 571 So.2d 244, 253-54 (Miss.1990), the Mississippi Supreme Court addressed the broadening of a criminal statute. Prior to Allman’s indictment, the Legislature had amended the statutory rape statute, changing “female” to “child” in order to make punishable the rape of a male as well as a female under the age of fourteen. Id. at 253. Allman argued, because his indictment used the word “female” instead of “child,” he was not properly charged. Id. But the supreme court held the broadening of the statutory crime did not make the indictment’s language defective for failure to use the precise words of the amended statute. Id. at 253-54. Because a “female person under the age of fourteen is a child under the age of fourteen,” the indictment’s language was wholly included within the new statutory language. Id. at 253.

¶ 21. Here, the auto-theft statute was amended to clarify that the crime encompasses taking vehicles for any amount of time. We find the length of time of the possession or deprivation need not be charged or proved. So long as the State alleges and proves a person intended to convert or, as charged here, “take possession of or take away” another’s vehicle for any amount of time, it has met its burden to show auto theft. Therefore, omission of the terms “temporary” and “permanent” do not render the indictment defective because the statute makes clear that any possession or taking — albeit temporary or permanent — suffices to establish auto theft. Spearman was charged with willfully taking possession or taking away Fleming’s truck. As in Allman, we find the “indictment’s language is wholly included within the statutory language[.]” Id. at 253.

¶ 22. We further note that the terms “convert” or “deprive the owner of possession,” which Spearman claims are fatally absent, have the same meaning as the language present in Spearman’s indictment. “Conversion” is defined as “[t]he wrongful possession or disposition of another’s property as if it were one’s own[.]” Black’s Law Dictionary 356 (8th ed. 2004). And Spearman’s indictment charged that he did “wilfully, unlawfully, and feloniously take possession of or take away” Fleming’s truck — which is the functional equivalent of intentionally converting or depriving Fleming of ownership.

¶ 23. We are satisfied the indictment contained the essential elements of auto theft — that the defendant (a) willfully and (b) without authority (c) took possession of or took away (regardless of whether the intent was to permanently or temporarily possess or dispossess) (d) a motor vehicle of any value belonging to another. Miss. Code Ann. § 97-17-42(1). And we find the indictment was exclusive enough to prevent the application of other crimes. It specifically described the offense as auto theft, contained its elements, and cited section 97-17-42. Although the failure to include the essential elements of a crime in the indictment cannot be waived, Short v. State, 990 So.2d 818, 819 (¶ 3) (Miss.Ct.App.2008), we note Spearman did not object to the indictment before trial, during trial, or in his post-trial motion, which supports that Spearman had sufficient notice of the charged offense. Indeed, he even acknowledged in a pretrial motion that he “ha[d] been charged with the crime of auto theft.” Further, the Legislature’s clarification that joyriding is auto theft establishes the exclusivity of the charged offense. Cf. Allman, 571 So.2d at 254 (finding no exposure to double jeopardy in the indictment’s description the victim as a “female under the age of fourteen” instead of the statutory language “child under the age of fourteen” because the crime is not gender-specific). Thus, we find Spear-man’s indictment was sufficient.

II. The Weight of the Evidence

¶ 24. Spearman alternatively argues the verdict is not supported by the weight of the evidence. When considering the weight of the evidence, “we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). We review the weight of the evidence in the light most favorable to the verdict. Id.

¶ 25. The court instructed the jury that if it found “the evidence beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis consistence with innocence, that on or about the tenth of February '09 the defendant, Keith Spear-man, did unlawfully, willfully, and felo-niously take possession of or take away a motor vehicle, a red Chevrolet commercial truck, and that said red Chevrolet commercial truck was the property of Fleming Lumber Company,” it shall find Spearman guilty. On appeal, Spearman asserts the jury did not follow this instruction and unreasonably excluded a reasonable hypothesis consistent with his innocence— that Spearman did not take the truck but instead caught a ride from another man who was driving the Fleming truck that morning. He claims the following evidence proves this: (1) the Ruleville store’s surveillance video did not show the outside of the store or Spearman driving away in the truck; (2) Spearman asked Archibald for a ride to Mound Bayou; (3) Spearman talked to another man outside the Fleming truck, when it was parked in Drew, before getting in; (4) the truck was parked at a gas pump in Drew, but Spearman did not buy any gas; and (5) witnesses had conflicting testimony about whether Spear-man was wearing a white or black cap that morning.

¶ 26. In reviving this defense, which the jury obviously rejected, Spearman ignores strong direct evidence supporting his guilt. Viewing the evidence in the light most favorable to the verdict, as we must, we prominently note that three witnesses testified seeing Spearman driving Fleming’s truck. Jordan testified Fleming had not authorized Spearman to remove the truck from CTR’s lot. Video placed Spearman at the convenience store in Ruleville, where Skellion testified he saw the Fleming truck. Witnesses also testified Spear-man fled from the police at a gas station in Drew where the truck was parked. And Spearman admitted to Officer Goza that he had tried the truck handle and found the truck unlocked with the keys in the ignition.

¶ 27. We find the evidence overwhelmingly supports the jury’s verdict and affirm Spearman’s conviction for auto theft.

¶ 28. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF AUTO THEFT AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIVE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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

      . Though the term "feloniously” is not contained in section 97-17-42 for auto-vehicle theft, the Mississippi Supreme Court has determined its inclusion in an auto-theft case is a permissible saddling of an additional burden of proof. Richmond v. State, 751 So.2d 1038, 1046 (¶21) (Miss.1999). And we note the jury was instructed it had to find beyond a reasonable doubt that Spearman "felo-niously” took away Fleming's truck.

      . We note Spearman does not challenge the absence of the amended phrase "of any value.” This phrase likewise clarifies the crime encompasses taking away another's vehicle regardless of the vehicle’s value. It does not make the value of the vehicle an element of the offense. So just as the State did not have to charge or prove the value of Fleming's truck, it did not have to charge or prove the length of the intended possession of the truck.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Ferdinand McAFEE, Appellant v. Rodrigo GALVEZ, M.D. and Brentwood Behavioral Healthcare of Mississippi, Appellees.
    No. 2010-CA-01282-COA.
    Court of Appeals of Mississippi.
    Aug. 9, 2011.
    Rehearing Denied Nov. 8, 2011.
    Certiorari Denied Feb. 16, 2012.
    Brandon Isaac Dorsey, attorney for appellant.
    John David Price, Whitman B. Johnson III, Eric Reynolds Price, Jackson, attorneys for appellees.
    Before GRIFFIS, P.J., ROBERTS and MAXWELL, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Ferdinand McAfee appeals the summary judgment granted in favor of Dr. Rodrigo Galvez and Brentwood Behavioral Healthcare of Mississippi. The Rankin County Circuit Court found that McAfee had failed to present a genuine issue of material fact as to his claim of medical malpractice against Dr. Galvez and Brent-wood. We agree and affirm the judgment.

FACTS

¶ 2. McAfee presented to St. Dominic Hospital in Jackson, Mississippi, complaining that he was unable to sleep due to a Decadron shot he was given at an MEA Medical Clinic. He listed “mental illness” as his chief complaint on the intake form at St. Dominic. Because he refused to sign certain documents required for treatment, and apparently because he refused to leave the hospital’s waiting room, McAf-ee was removed from St. Dominic by an officer from the Jackson Police Department (“JPD”).

¶ 3. The following day, upon recommendation of another JPD officer, McAfee voluntarily checked himself in to Brentwood for treatment. Dr. Galvez, McAfee’s treating psychiatrist at Brentwood, reported that McAfee was uncooperative. At first, McAfee refused to talk. Later, he began to talk continuously. He was placed on a legal hold at Brentwood for seventy-two hours. He was later discharged at his insistence and against medical advice.

¶ 4. McAfee filed suit against Brentwood and Dr. Galvez. McAfee alleged that: he was negligently diagnosed as a paranoid schizophrenic, and he was not properly cared for or treated by Dr. Galvez and Brentwood. However, the record contains McAfee’s own admission that he refused to remain at Brentwood in order to receive the proper treatment that was recommended. McAfee further claimed that he lost his job as a result of the diagnosis; however, the record contains a handwritten resignation from McAfee to his employer. There are also two affidavits from his employer stating that McAfee was not terminated due to mental illness.

¶ 5. Dr. Galvez and Brentwood each filed motions for summary judgment arguing that McAfee had failed to designate an expert witness to establish the elements of medical negligence by the deadline established in the agreed scheduling order. McAfee did not respond to the motions, and he failed to appear at the hearing held by the circuit court. The circuit court found that McAfee had failed to present a genuine issue of material fact, and summary judgment was granted in favor of Dr. Galvez and Brentwood.

STANDARD OF REVIEW

¶ 6. The standard of review of an order granting summary judgment is de novo. PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 49 (¶ 8) (Miss.2005) (citing Hurdle v. Holloway, 848 So.2d 183, 185 (¶ 4) (Miss.2003)). It is well settled that “[a] summary judgment motion is only properly granted when no genuine issue of material fact exists.... The moving party has the burden of demonstrating that no genuine issue of material fact exists within the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.’ ” Id. (quoting M.R.C.P. 56(c)).

ANALYSIS

¶ 7. McAfee’s entire argument on appeal consists of the following paragraph:

Appellant asserts that the lower court erred in granting summary judgment in these premises. Appellant contends that he consulted with an expert, qualified to testify, in accordance with applicable rules that Defendants breached the required standard of care. There is no dispute that Appellant maintained a doctor-patient relationship with Appel-lees. There is no dispute that Appellees owed Appellant a duty to exercise the standard of care required under existing applicable law. Moreover, Appellant asserts that he disclosed the identity of such expert to Defendants as well as tendered in his response to Pleadings that such expert opined that Defendants breached the applicable standard of care.

¶ 8. McAfee’s argument contains no citations to the record or any supporting legal authority. Consequently, his argument is procedurally barred from our review. See O’Hara v. Robinson, 904 So.2d 1110, 1111—12 (¶ 9) (Miss.Ct.App.2004) (quoting Mississippi Rule of Appellate Procedure 28(a)(l)(6), which states: “The argument shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.”)

¶ 9. Despite this procedural bar, we find that his argument is also without merit. McAfee asserts that he consulted an expert who opined that Dr. Galvez and Brentwood had breached the standard of care. He further asserts that he disclosed the identity of the expert in his response to pleadings. However, these assertions are not supported by the record. The record contains only two pleadings filed by McAfee — his complaint and his notice of appeal. McAfee failed to respond to the motions for summary judgment. Even after the circuit judge continued the hearing and ordered McAfee to respond, McAfee failed to do so. We find no pleadings that disclosed McAfee’s expert witness.

¶ 10. Mississippi Rule of Civil Procedure 56(e) states that “an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Furthermore, the Mississippi Supreme Court has held that:

[I]n a summary judgment proceeding, the plaintiff must rebut the defendant’s claim (i.e., that no genuine issue of material fact exists) by producing supportive evidence of significant and probative value; this evidence must show that the defendant breached the established standard of care and that such breach was the proximate cause of her injury.

Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1355 (Miss.1990).

¶ 11. McAfee failed to rebut the motions for summary judgment with any evidence of the standard of care, a breach of that standard, or a resulting injury. Accordingly, the circuit judge properly granted summary judgment in favor of Dr. Galvez and Brentwood. This issue is pro-eedurally barred and without merit.

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

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


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

text:
    Lisa WANSLEY, Appellant v. Victoria BRENT, Appellee.
    No. 2010-CA-01045-COA.
    Court of Appeals of Mississippi.
    Sept. 13, 2011.
    Rehearing Denied Dec. 13, 2011.
    Certiorari Denied Feb. 16, 2012.

      Philip W. Gaines, Jackson, James Scott Rogers, Jeremy Tristan Hutto, Christopher David Morris, Jackson, attorneys for appellant.
    Joe N. Tatum, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Victoria Brent filed suit against Lisa Wansley in the County Court of Hinds County for personal injuries arising from a car accident. The jury returned a verdict in favor of Brent in the sum of $55,000. Wansley appealed, and the Circuit Court of Hinds County affirmed the judgment. Wansley again appealed, and her appeal was deflected to this Court. Here, Wans-ley argues that the trial court erred when it refused to instruct the jury on comparative negligence. We find reversible error and remand for a new trial.

FACTS

¶ 2. On August 10, 2006, Brent left her office to go to lunch. She was traveling south on Hanging Moss Road, in Jackson, Mississippi. She was involved in an accident that occurred on Hanging Moss Road at the entrance to the parking lot of Save-A-Lot, a grocery store. At this location, Hanging Moss Road has two northbound lanes, a center turn lane, and two southbound lanes.

¶ 3. Daniel Wiggins was the driver of an eighteen-wheel tractor trailer. Wiggins’s truck was also headed south on Hanging Moss Road. Wiggins testified that his truck was waiting to make a right turn into the Save-A-Lot parking lot. He said that his truck was straddling the line between the two southbound lanes of Hanging Moss Road. Wiggins testified that he could not enter the parking lot because Wansley’s vehicle was at the entrance. Wansley was waiting to turn left to travel north on Hanging Moss Road. Wiggins testified that he could not enter the parking lot while Wansley’s vehicle was at the entrance, so he waited for her to move.

¶ 4. Brent was traveling south and approached from Wiggins’s rear. Wiggins testified that Brent entered the center turn lane to pass his truck. As Brent did so, Wansley pulled out from the Save-A-Lot parking lot. Their vehicles collided.

¶ 5. Brent testified at trial that she did not know whether Wiggins’s truck was straddling the two southbound lanes, but she claimed, contrary to Wiggins’s testimony, that she did not enter the center lane.

¶ 6. The trial consisted of testimony from only Brent and Wiggins. At the conclusion of the evidence, the trial court gave several jury instructions. The trial judge gave an instruction (P-10) that would allow the jury to find Wansley negligent and render a verdict for Brent. Wansley asked for an instruction (D-17) that would allow the jury to assess comparative fault of both Wansley and Brent, but the trial court refused to give this instruction. Wansley also asked for an instruction (D-18) that would allow the jury to find Brent negligent and render a verdict for Wansley. Instruction D-18 reads:

Should you find from a preponderance of the evidence that the Plaintiff [ (Brent) ] committed one or more of the following acts:
1. Fail[ed] to maintain a proper lookout;
2. Failed to use reasonable care; and
3. Failed to keep her vehicle under proper control.
Then you may find that [Brent] was negligent. Should you further find by a preponderance of the evidence that the negligence of [Brent] caused the accident in question, then your verdict shall be for the Defendant [ (Wansley) ].

¶ 7. The following discussion occurred about Instruction D-18 during the jury-instruction conference:

Brent’s counsel: Again, this is a generic thing that does not fit, does not incorporate any of the facts. Quite frankly, it’s extremely vague. We don’t dispute that plaintiff had certain duties, but just to pop up into the jury’s face and say if you find the plaintiff did commit this, this, and this but don’t say — it doesn’t incorporate the facts, Your Honor. I think it’s a vague and improper instruction.
Wansley’s counsel: Your Honor, it is the same as 10 and 11. The plaintiff gets two; we get two. There’s nothing here that is wrong. The plaintiff has a duty to maintain a proper lookout. She has a duty to use reasonable care and to keep her vehicle under control.
Brent’s counsel: Just to move it on, we will withdraw our objection to D-18. The Court can give it.

¶ 8. The jury was instructed it could find that either Brent or Wansley was negligent. The jury was not permitted to consider and find comparative negligence. The jury returned a verdict against Wans-ley in the amount of $55,000. The trial court entered a final judgment consistent with the jury’s verdict, and it is from this judgment that Wansley appeals.

STANDARD OF REVIEW

¶ 9. In Burton ex rel. Bradford v. Barnett, 615 So.2d 580, 583 (Miss.1993), the Mississippi Supreme Court held:

On appeal, this Court does not review jury instructions in isolation; rather, they are read as a whole to determine if the jury was properly instructed. Defects in specific instructions do not require reversal “where all instructions taken as a whole fairly — although not perfectly — announce the applicable primary rules of law.” However, if those instructions do not fairly or adequately instruct the jury, we can and will reverse.

(Internal citations omitted).

ANALYSIS

¶ 10. The only issue on appeal is whether the trial court erred when it failed to instruct the jury on comparative fault. Here, Brent withdrew her objection to the instruction offered by Wansley that allowed the jury to be instructed it may find that either Brent or Wansley was negligent. Yet the jury was not permitted to find comparative negligence.

¶ 11. Wansley argues that the trial court’s rejection of the comparative-fault instruction (D-17) constitutes reversible error because: (1) the instructions granted did not reflect Mississippi law on comparative fault; (2) the instructions caused confusion among the jurors; and (3) the instructions did not allow the defendant’s comparative-negligence theory of the case to be considered by the jury.

¶ 12. Wansley is correct. Mississippi Code Annotated section 11-7-15 (Rev. 2004) provides:

In all actions hereafter brought for personal injuries, ..., the fact that the person injured, ... may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.

Indeed, in Burton, the supreme court held that “Mississippi is a pure comparative[-]negligence state.” Burton, 615 So.2d at 582 (citations omitted). The supreme court explained:

Under the comparative[-]negligence doctrine, negligence is measured in terms of percentage, and any damages allowed shall be diminished in proportion to amount of negligence attributable to the person for whose injury, damage[,] or death recovery is sought. Where negligence by both parties is concurrent and contributes to injury, recovery is not barred under such doctrine, but plaintiffs damages are diminished proportionately, even to the extent that negligence on the part of the plaintiff was ninety percent (90%) and on the part of the defendant was ten percent (10%), the plaintiff would be entitled to recover theoretically that ten percent. Therefore, a plaintiff, though himself negligent, may still recover from a defendant whose negligence contributed to his injuries. Comparative negligence thus diminishes but does not bar recovery.

Id. (citations omitted).

¶ 18. Wansley argues that if a jury can properly find that failure to maintain a proper lookout could render either driver guilty of negligence, then logically it should follow that both drivers could potentially have been negligent, and the jury was entitled to the option of apportioning fault or damages between the two parties. She is correct.

¶ 14. Brent argues that when a motorist enters a highway from a private driveway, that motorist is the sole cause of any resulting accident. Brent cites Stribling v. Hauerkamp, 771 So.2d 415, 417 (¶ 11) (Miss.Ct.App.2000). The legal principle cited by Brent is simply not the holding in Stribling. Rather, in Stribling, this Court concluded that a directed verdict is appropriate where there is no evidence that the plaintiff acted negligently in an automobile-collision case where the defendant negligently attempted to cross a highway and was struck by the plaintiffs car. Id. at 418 (¶ 14).

¶ 15. Brent also argued that refusal to grant a comparative-negligence instruction was supported by Rotwein v. Holman, 529 So.2d 173, 174-75 (Miss.1988). There, the defendant rear-ended a car as she exited a parking lot. The defendant admitted negligence during voir dire, and the trial court gave a peremptory instruction on liability. Id. Here, there was no admission of negligence by Wansley. Instead, Brent conceded there was a potential question of fact on the issue of negligence. Brent withdrew her objection to instruction D-18 and agreed that the jury should be allowed to consider Brent’s own negligence. Thus, by Brent’s own admission, her negligence was a factual issue for the jury to decide.

¶ 16. Wansley also argues that the jury instructions resulted in confusion on the part of the jury. Wansley claims that the jury was faced with instructions that allowed it to find Wansley negligent or to find Brent negligent, but it could not find that both were negligent. Wansley points us to the fact that, during their deliberations, the jury sent out a note which asked: “May we award a lesser amount?” The trial judge responded with the following admonition: “Just follow jury instructions.” The jury then returned their verdict against Wansley in the amount of $55,000. Wansley cites this as proof that the jury was confused whether they could apportion negligence between Brent and Wansley rather than finding one party solely negligent.

¶ 17. When taken in their entirety, we conclude that the jury instructions failed to instruct fairly or adequately the jury as to the law of comparative negligence and did not provide a format for an apportionment of fault or damages. Therefore, we reverse and remand this case for a new trial consistent with this opinion.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

IRVING, P.J.,

dissenting:

¶ 19. In this personal-injury case, the jury found that Wansley, who did not testify, was solely responsible for the injuries sustained by Brent as a result of a two-vehicle accident between Brent and Wans-ley. The facts áre simple. Wansley, without warning, pulled out from a parking lot into the southbound lanes of Hanging Moss Road in Jackson, Mississippi, and struck Brent’s vehicle as it was proceeding south on Hanging Moss Road.

¶ 20. The majority finds that the circuit court erred in not giving a comparative-negligence instruction. I disagree. I would affirm the judgment of the circuit court which, based on the jury’s verdict, awarded Brent $55,000 in damages.

¶ 21. The majority’s reasoning may be succinctly summarized as follows: Since the circuit court gave instructions which permitted the jury to find either party liable for the accident, it was error not to allow a comparative-negligence instruction because if a party could be solely responsible for the accident, it logically follows that that party could also be partly responsible. While this reasoning in the abstract may have merit, a vehicular accident does not occur in a vacuum. It occurs as a result of specific actions or omissions on the part of the vehicle’s operator. Whether a particular operator caused or partly caused an accident is a question of fact that must be determined by analyzing the operator’s actions or inactions in conjunction with applicable traffic rules and regulations, attendant to the specific circumstances on the ground. Furthermore, the law recognizes that there must be an evidentiary basis for granting jury instructions. Young v. Guild, 7 So.3d 251, 259 (¶ 23) (Miss.2009). They are never granted on the basis of some abstract theory or simply because another instruction may have been given, whether the other instruction was properly given or not. There must be an evidentia-ry basis for each instruction.

¶ 22. As stated, the evidence is undisputed that Wansley pulled out of a parking lot into the flow of southbound traffic on Hanging Moss Road. It is undisputed that the southbound traffic had the right-of-way. It is likewise undisputed that Wans-ley was attempting to make a left turn to travel north on Hanging Moss Road. To accomplish her purpose, it is undisputed that Wansley had to travel across the southbound lanes. The majority does not explain how Brent, who was proceeding south in one of the southbound lanes of Hanging Moss Road, could be guilty of contributory negligence. Brent testified that the accident occurred in the inside or left lane of the southbound lanes of Hanging Moss Road. At that point, there is no street intersection. The Save-a-Lot and Family Dollar parking lot is located to the right of the southbound lanes, and there is a driveway that allows traffic, from either direction on Hanging Moss Road, to enter the parking lot. The driveway intersects the outside or right southbound lane of Hanging Moss Road. Wansley proceeded from this driveway across the outside or right southbound lane and struck Brent’s car that was proceeding, according to Brent, in the inside or left southbound lane.

¶ 23. Wiggins testified that his eighteen wheeler was blocking both of the southbound lanes of traffic while he was waiting to turn into the parking lot of Save-a-Lot, and that Brent moved into the turning lane to go around his truck. However, this testimony changes nothing. There is absolutely no evidence in the record that Wansley ever saw Brent’s vehicle or Wiggins’s truck. As stated, Wansley did not testify. Therefore, despite the conflicting testimony of Brent and Wiggins, Wansley receives no benefit from it because there is no evidence in the record that she predicated her action — pulling out into the southbound lane of traffic — on the mistaken notion that Brent was going to remain behind Wiggins’s truck until Wansley cleared the driveway. Again, I repeat: Wansley did not testify; therefore, there is no evidence that her actions were influenced by what she perceived was going on in the southbound lanes when she pulled out.

¶ 24. It cannot be legitimately argued that Wiggins’s testimony provided a sufficient evidentiary basis for granting a comparative-negligence instruction. I know of no traffic law that requires a southbound motorist to remain behind a southbound vehicle that is attempting to execute a right turn, even if the turning vehicle is blocking a portion or all of the two southbound lanes. If the southbound motorist can safely go around the turning vehicle without impeding oncoming traffic, it may do so, even if it has to travel in a portion of a turning lane. Moreover, Wiggins’s truck could not have been blocking all of the inner southbound lane unless he was attempting to make the right turn from that lane instead of from the right lane, which would have been illegal. Further, assuming that Wiggins’s truck was blocking both of the southbound lanes, that fact would not have obviated Wansley’s obligation to yield the right-of-way to southbound traffic. “The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to all vehicles approaching on said highway.” Miss.Code Ann. § 63-3-807 (Rev.2004). It is undisputed that Brent was traveling southbound and approaching the private driveway when Wansley pulled into Hanging Moss Road. Wansley may have thought that Wiggins’s truck was blocking all of the southbound traffic and that she could safely pull out into Hanging Moss Road. However, she acted at her peril, as her obligation to yield the right-of-way was unaffected by what Wiggins did.

¶ 25. It necessarily follows that there was no evidentiary basis for giving a comparative-negligence instruction, as there is no evidence that Brent’s action contributed to the accident even if she did move into the turning lane to proceed around Wiggins’s truck. Her actions could not have contributed to the accident unless she did something that caused Wansley to proceed into the southbound lanes at a time when Wansley would not have done so but for Brent’s action. There is absolutely no evidence to support such a theory. For the reasons presented, I dissent. I would affirm the judgment of the circuit court that awarded Brent $55,000 in damages for Wansley’s sole negligence in causing the accident.

CARLTON, J., JOINS THIS OPINION.

      . Indeed there was no evidentiary basis for granting the negligence instruction against Brent. It is clear that Brent's counsel recognized as much. Nevertheless, in order to move the proceedings along, he reluctantly agreed to allow the instruction to be given. However, that does not mean that the circuit court was then obligated to give another improper instruction.


author: IRVING, P.J.,

text:
    Leonard CAREY, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01275-COA.
    Court of Appeals of Mississippi.
    Jan. 10, 2012.

      Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., BARNES and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of Leonard Carey’s conviction, in the Hinds County Circuit Court, for the murder of Philip Charleston, and resulting life sentence in the custody of the Mississippi Department of Corrections. On April 27, 2010, Carey filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV), which the circuit court denied. On appeal, Carey argues that: (1) the circuit court erred in limiting the cross-examination of Marcus Smith regarding his knowledge of events prior to Charleston’s death; (2) the circuit court erred in limiting the cross-examination of Dr. Adele Lewis regarding Charleston’s toxicology report; (3) the evidence is insufficient to convict Carey of murder; (4) the circuit court erred in denying Carey’s motion for a directed verdict; and (5) the jury’s verdict is against the overwhelming weight of the evidence.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On February 5, 2009, Carey shot and killed Charleston over a dispute during a dice game. Carey testified that Charleston, drunk and high on cocaine at the time, pulled out a knife and threatened to kill him if he did not return the money that Carey had won from him during the dice game. Carey testified that he pulled out his gun and pointed it at Charleston. According to Carey, when Charleston moved toward him, Carey shot Charleston twice. Carey testified that he was only trying to scare Charleston and did not intend to shoot him.

¶ 4. Smith was initially a part of the dice game, but he had stopped playing and was just watching Carey and Charleston play. Smith stated that he saw Carey pull out the gun and point it at Charleston, but he did not see Charleston with a knife. Smith also testified that when the dice game between Carey and Charleston became heated, he told them to “get out [of] my mama[’s] house with that” and went outside to smoke a cigarette. Soon after leaving the room, Smith heard gunshots. Smith initially testified that he had not been with Charleston or Carey during the day and did not see them until they came to his house to shoot dice. On cross-examination, Smith stated that he did spend the morning with Charleston and Carey but could not specify the time when they began to shoot dice.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Cross-Examination of Marcus Smith

¶ 6. Carey argues that he was denied his fundamental right to confront the witnesses against him when the circuit court limited his cross-examination of Smith regarding his knowledge of events prior to Charleston’s death. During trial, defense counsel attempted to question Smith regarding allegations that he purchased alcohol for Carey and Carey’s brother, who were both minors at the time. The State objected and requested a bench conference on the matter. However, the bench conference was not transcribed or otherwise included in the record. It appears that the circuit court might have denied any further questioning concerning Smith’s trips to the liquor store with Carey and Carey’s brother because defense counsel abandoned this line of questioning following the bench conference. The record, however, contains no evidence of the arguments that were made during the bench conference, the circuit court’s ruling, or any objection to the court’s ruling.

¶ 7. Carey is procedurally barred from raising this issue on appeal because he failed to preserve this alleged error on the record. The Mississippi Supreme Court has stated that it is the responsibility of the party complaining of an error to preserve the record for appeal. Brown v. State, 965 So.2d 1023, 1029 (¶ 24) (Miss.2007). Thus, “[bjecause the bench conference and arguments that occurred therein were not preserved on the record, review of the alleged error is waived.... ” Scott v. State, 796 So.2d 959, 964 (¶ 16) (Miss.2001) (citing Cotton v. State, 675 So.2d 308, 314 (Miss.1996)).

2. Cross-Examination of Dr. Adele Lewis

¶ 8. Carey argues that the circuit court erred in limiting the cross-examination of Dr. Lewis regarding Charleston’s toxicology report. Prior to trial, the State filed a motion in limine to prohibit Carey from introducing evidence of Charleston’s toxicology. The circuit court ruled that evidence of Charleston’s toxicology was not to be mentioned until such evidence became relevant. At trial, the circuit court ruled that Dr. Lewis could testify as to any toxicology evidence within the autopsy report. Dr. Lewis testified that she had read the toxicology report before creating the autopsy report and that the toxicology report revealed that cocaine and alcohol were in Charleston’s system at the time of his death. Dr. Lewis was not allowed to testify as to how these substances could have affected Charleston’s state of mind.

¶ 9. “Limitations placed on cross-examination are reviewed for abuse of discretion.” Jefferson v. State, 818 So.2d 1099, 1109 (¶ 24) (Miss.2002) (citing McDowell v. State, 807 So.2d 413, 422 (¶23) (Miss.2001)). The circuit court’s exercise of discretion will be affirmed unless the ruling resulted in prejudice to Carey. Clark v. State, 40 So.3d 531, 542 (¶29) (Miss.2010). Dr. Lewis, who only performed Charleston’s autopsy, was allowed to testify regarding the presence of cocaine and alcohol in Charleston’s blood. However, not allowing Dr. Lewis to testify as to the effects of those substances on Charleston’s state of mind at the time of the incident did not prejudice Carey’s defense because the jury heard testimony regarding the presence of drugs and alcohol in Charleston’s system at the time of the incident. As such, this issue is without merit.

3. Sufficiency of the Evidence

¶ 10. Carey contends that the evidence is insufficient to sustain his conviction of murder. He made a motion for a directed verdict at the conclusion of the State’s evidence. The circuit court denied the motion, and Carey failed to renew the motion at the conclusion of all of the evidence. “If a defendant puts on evidence in his own defense after the denial of his motion for a directed verdict, he waives his challenge to the sufficiency of the State’s evidence up to that point.” Robinson v. State, 749 So.2d 1054, 1058-59, (¶ 13) Miss.1999). In Carey’s post-trial motion, he challenged the circuit court’s limitation of Dr. Lewis’s and Smith’s cross-examinations. Additionally, he asserted that the circuit court erred in failing to grant a directed verdict. However, the record does not show that Carey filed a peremptory instruction, or, as stated, renewed his motion for a directed verdict at the conclusion of all of the evidence. Thus, Carey is procedurally barred from raising the issue on appeal. Moore v. State, 52 So.3d 339, 340 (¶ 18) (Miss.2010).

¶ 11. Procedural bar aside, this issue is also without merit. When reviewing the sufficiency of the evidence, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Carey admitted that he shot and killed Charleston. While Carey testified that Charleston was threatening him, there was also evidence that Carey killed Charleston without adequate provocation or the need to protect himself from harm. Ultimately, it is the jury’s responsibility to balance the credibility of witnesses and determine how much weight to give their testimonies. Latiker v. State, 918 So.2d 68, 73 (¶ 12) (Miss.2005). Here, the evidence “does not point so overwhelmingly in favor of [Carey] that reasonable men could not have arrived at a guilty verdict....” Id. Therefore, this issue is without merit.

A Directed Verdict on the Basis of Imperfect Self-Defense

¶ 12. Carey asserts that the circuit court erred in denying his motion for a directed verdict based on the theory of imperfect self-defense. Our supreme court has long held that a motion for a directed verdict must be specific in nature. Sheffield v. State, 749 So.2d 123, 126 (¶ 10) (Miss.1999). Furthermore, this Court has held that “[i]n the absence of such specificity, the [circuit] court will not be put in error for overruling [the] same.” Foster v. State, 928 So.2d 873, 879 (¶13) (Miss.Ct.App.2005) (quoting Davis v. State, 866 So.2d 1107, 1113 (¶ 21) (Miss.Ct.App.2003)). In neither his motion for a directed verdict nor his motion for a new trial or, alternatively, for a JNOV, did Carey specifically address the issue of imperfect self-defense or explain why he was entitled to a directed verdict based on self-defense. As such, he is procedurally barred from raising this issue on appeal.

¶ 13. Procedural bar notwithstanding, Carey argues that because the State failed to prove “malicious intent,” he should have been convicted of manslaughter instead of murder under the theory of imperfect self-defense. Our supreme court has recognized the theory of imperfect self-defense as “an intentional killing ... done without malice but under a bona fide (but unfounded) belief that it was necessary to prevent great bodily harm.” Moore v. State, 859 So.2d 379, 383 (¶ 9) (Miss.2003) (quoting Wade v. State, 748 So.2d 771, 775 (¶ 12) (Miss.1999)).

¶ 14. Carey argues that he acted in self-defense when he shot Charleston because Charleston had threatened him with a knife. Furthermore, Carey argues that the State did not prove that he had acted with malice or deliberate design. However, our supreme court has held that malice, or deliberate design, may be inferred from the use of a deadly weapon. Phillips v. State, 794 So.2d 1034, 1037 (¶11) (Miss.2001). Carey admitted that he shot Charleston, and no other witness corroborated Carey’s assertion that Charleston was the initial aggressor. Considering the evidence in the light most favorable to the State, we hold that the State presented sufficient evidence of malicious intent. Thus, this issue is without merit.

5. Weight of the Evidence

¶ 15. Carey argues that the jury’s verdict is against the overwhelming weight of the evidence. However, “if an appellant raises for review an issue not raised in the pleadings, transcript, or rulings, the appellant must have preserved the issue by raising it in a motion for [a] new trial.” Page v. State, 64 So.3d 482, 489 (¶29) (Miss.2011) (quoting Collins v. State, 594 So.2d 29, 36 (Miss.1992)). Carey is procedurally barred from raising this issue on appeal because he did not raise it in his motion for a new trial.

¶ 16. Procedural bar aside, an appellate court will not disturb a jury verdict unless “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Hogan v. State, 48 So.3d 512, 514 (¶ 9) (Miss.2010) (quoting Boyd v. State, 977 So.2d 329, 336 (¶27) (Miss.2008)). Carey’s contention is based solely on the plausibility of Smith’s inconsistent testimony concerning how long Carey and Charleston had been shooting dice before Charleston was shot and whether or not he was with Carey and Charleston earlier during the day. However, “[cjonflicting testimony does not evince overwhelming evidence; ‘where the verdict turns on the credibility of conflicting testimony and the credibility of the witnesses, it is the jury’s duty to resolve the conflict.’ ” Brown v. State, 995 So.2d 698, 702 (¶ 13) (Miss.2008). Carey’s assertions simply do not support a finding that the verdict is against the overwhelming weight of the evidence. This issue is without merit.

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

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


author: RUSSELL, J„

text:
    Marietta JOHNSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00230-COA.
    Court of Appeals of Mississippi.
    Feb. 7, 2012.

      Marietta Johnson, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   RUSSELL, J„

for the Court:

¶ 1. Marietta Johnson appeals the Clay County Circuit Court’s judgment dismissing her motion for post-conviction relief (PCR). Johnson argues that the circuit court should resentence her as a non-habitual offender because she has health problems and because her sentence constitutes cruel and unusual punishment. Upon review, we find no error. Therefore, we affirm the circuit court’s judgment dismissing Johnson’s PCR motion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Johnson had two prior convictions for credit-card fraud and was sentenced to two years for each conviction, totaling four years. Subsequently, Johnson was convicted as an accessory after-the-fact for grand larceny and sentenced as a habitual offender. She received a sentence of five years. On November 24, 2010, Johnson filed a handwritten motion in the circuit court, which provided:

Greetings:
To the Honorable Judge Jim Kitchens, Congratulations on being re-elected.
My name is Marietta Johnson presently incarcerated at [the] MDOC, # K5520. I was sentenced by you for this offense, in Clay County, “accessory[-]after[-]the[-]fact,” cause # 919413, offense # 7055.
I’m writing to “humbly” ask if you would please lift the “habitual” from this sentence of 5 years, Sir.
I’ve finished the sentence on which I violated and just starting on this one, which is mandatory time.
Right now, I’m experiencing health problems and at 57 years old the medical care is horrible. I’m recovering from breast cancer, diabetes, [and] high blood pressure just to name a few.
Please know Sir, that I’m not trying to squirm out of doing this time, I just need the term “habitual” removed because it hinders my participation in programs offer[ed] by [the] MDOC.
Contact name and number: Warden Tina Ladner, 932-2880 C.M.C.F.
I would be ever so grateful to you for assisting me in this matter.
Thank you in advance.
Sincerely,
s/ Marietta Johnson

¶ 3. The circuit court treated Johnson’s motion as one for PCR, and on January 21, 2011, the court entered a judgment dismissing Johnson’s PCR motion, stating:

Came on to be heard this day the above styled and numbered post[-]eonviction matter in which the petitioner has filed a[m]otion to [r]e-sentence, and the [cjourt, after having reviewed the court file, and having reviewed the sentencing order, is of the opinion that the petition is not well taken and that no hearing is necessary. The [cjourt is without the authority to delete the habitual portion of the [pjetitioner’s sentence. All requests of this nature should be submitted to the Mississippi Department of Corrections.
IT IS THEREFORE ORDERED AND ADJUDGED, that said [pjetition should be and is hereby dismissed without the necessity of a hearing. Further, the Circuit Clerk is hereby directed to send a copy of this [ojrder to all parties.

¶ 4. Subsequently, on March 14, 2011, the circuit court entered an order granting Johnson’s request to appeal in forma pau-peris, stating:

Came on to be heard this day the above styled and numbered post[-jconvietion matter; and the [cjourt, after having reviewed the record of proceedings in the trial court, the guilty plea, the sentencing order[,j and the pleadings herein, and the [cjourt, having taken judicial notice that the petitioner appears to wish to appeal [her] post-conviction ruling of January 21, 2011[,j to the Mississippi Supreme Court, find that [she] should be granted leave to appeal [her] post-conviction ruling. The [cjourt further finds that the [pjetitioner has requested to appeal in forma pauperis, and having reviewed the poverty affidavit previously filed, the [cjourt does hereby grant this request.
IT IS THEREFORE ORDERED, that the [pjetitioner’s [mjotion to [ajppeal is granted. The [cjircuit [cjlerk is directed to send a copy of this [ojrder to all parties and to the Mississippi Supreme Court.

Johnson appeals the circuit court’s judgment dismissing her PCR motion. Finding no error, we affirm.

DISCUSSION

¶ 5. We “will not disturb a lower court’s denial of a petition for post-conviction relief unless it is clearly erroneous.” Owens v. State, 17 So.3d 628, 632 (¶ 7) (Miss.Ct.App.2009) (quoting Long v. State, 982 So.2d 1042, 1043 (¶ 5) (Miss.Ct.App.2008)). “However, when questions of law are raised, the standard of review is de novo.” Id. (quoting Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)).

¶ 6. “This Court reviews the terms of a sentence under an abuse of discretion standard.” Id. at 632 (¶ 8) (quoting Vardaman v. State, 966 So.2d 885, 891 (¶ 28) (Miss.Ct.App.2007)). “The circuit court judge has ‘complete discretion’ in sentencing.” Id. Therefore, “[ujnless the sentence is grossly disproportionate or not within the statutory limits, we will not disturb the sentence on appeal.” Id. (citing Hull v. State, 983 So.2d 331, 335 (¶ 21) (Miss.Ct.App.2007)).

I. Whether Johnson was entitled to be resentenced as a non-habitual offender due to her health problems.

¶ 7. Johnson argues the circuit court erred in failing to resentence her as a non-habitual offender because she is experiencing health problems. Our habitual-offender statute provides as follows:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss.Code Ann. § 99-19-81 (Rev.2007) (emphasis added).

¶ 8. Johnson does not dispute being sentenced as a habitual offender at the time of her conviction as an accessory after-the-fact. Rather, she asserts that her health problems entitle her to be resen-tenced as a non-habitual offender. We have been unable to find any Mississippi case law, statute, or other authority on point, and Johnson failed to cite any authority within her appellant brief or her reply brief on this point. But a plain reading of section 99-19-81 states that a sentence imposed under this statute “shall not be reduced.” Therefore, we find that Johnson was not entitled to be resentenced as a non-habitual offender due to her health problems.

II. Whether the circuit court’s failure to resentence Johnson constitutes cruel and unusual punishment.

¶ 9. Johnson also argues that the circuit court’s failure to resentence her as a non-habitual offender constitutes “cruel and unusual punishment” under the Eighth Amendment to the United States Constitution. We disagree. “A sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal.” Brown v. State, 875 So.2d 214, 221 (¶ 35) (Miss.Ct.App.2003) (citing Towner v. State, 837 So.2d 221, 227 (¶20) (Miss.Ct.App.2003)). “The imposition of a sentence is within the discretion of the trial court, and appellate courts will not review the sentence, if it is within the limits prescribed by statute.” Id.

¶ 10. Under Mississippi law, the maximum sentence for a person convicted as an accessory after-the-fact is five years. Miss.Code Ann. § 97-1-5 (Rev.2006). Johnson received a five-year sentence, which clearly falls within the statutory limits. Therefore, this issue is without merit.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

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

      . Specifically, Johnson states in her brief that she is “presently experiencing health problems such as diabetes, high blood pressure, arthritis, recovering from breast cancer, had left radical mastectomy, [and] lymph edema, [and] at 57 years old, [finds] it difficult to receive continuity of care in this facility.”

      . We note that under limited circumstances an inmate may qualify for conditional medical release in the discretion of the commissioner and the medical director of the MDOC. See Miss.Code Ann. § 47-7-4 (Rev.2011). However, this type of release is reserved for terminally ill inmates and for those with "significant permanent physical medical condition[s] with no possibility of recovery.” Id. Johnson does not allege either of these conditions. Even if she did, Johnson would need to seek relief from the commissioner and the medical director of the MDOC, not the courts. Id.

      .In fact, Johnson failed to cite any authority whatsoever in her appellant brief. Under her table of authorities, she wrote "none applicable to this particular case.” We note that under Mississippi Rule of Appellate Procedure 28(6), the argument section of an appellant brief “shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” (Emphasis added). Thus, "[a]s an appellate court, we are not required to consider an argument which is not supported by authority.” Doss v. State, 956 So.2d 1100, 1102 (¶ 7) (Miss.Ct.App.2007). Although Johnson does cite authority (the Eighth Amendment to the United States Constitution and a few Eighth Amendment cases) within her reply brief, we find this argument without merit for the reasons discussed herein.


author: CARLTON, J.,

text:
    Donald GREENWOOD and Carol Greenwood, Appellants v. Gerald Allen YOUNG, Sr. and Melody Ann Young, Appellees.
    No. 2010-CA-01154-COA.
    Court of Appeals of Mississippi.
    Feb. 7, 2012.

      Christopher Morgan Posey, Philadelphia, attorney for appellants.

      Caleb Elias May, attorney for appellees.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Donald and Carol Greenwood (the Greenwoods) appeal the decision of the Winston County Chancery Court that found Gerald Allen Young Sr. and Melody Young (the Youngs) had properly stated a claim of adverse possession of certain property located in Winston County, Mississippi. The Greenwoods further appeal the chancellor’s denial of their motion in limine. The Greenwoods raise the following assignments of error: (1) whether the chancery court erred in denying their motion in limine and standing objection to exclude any evidence or testimony of adverse possession allegedly occurring prior to the date the court voided the warranty deed from Donald to the Youngs and (2) whether the chancery court erred in holding that the Youngs proved by clear-and-convincing evidence that their actions entitled them to title of the disputed property under the theory of adverse possession. Finding no error, we affirm.

FACTS

¶ 2. On July 16, 1984, Donald purchased a thirty-one acre tract of land in Winston County, Mississippi, from his siblings, Charles W. “Dan” Greenwood, Barbara G. Jones, Sue G. Livington, and Tessie G. Higginbotham, but reserved unto the siblings and their heirs the first right of refusal to purchase the property should it be offered for sale. On July 12, 1996, Donald executed a warranty deed conveying two of the thirty-one acres to the Youngs, unbeknownst to his siblings.

¶ 3. Tessie testified that upon discovering that in 2006 Donald had conveyed the property to the Youngs without offering the right of first refusal to his siblings, she employed Taylor Tucker, an attorney. Tucker drafted a letter to the Youngs on August 30, 2006, notifying them of the “right of first refusal” and asking them to convey the property back to Donald. Then, on October 10, 2006, Barbara, Sue, and Tessie (the Sisters) filed a complaint against the Youngs in the Winston County Chancery Court to set aside the 1996 warranty deed. Essentially, the Sisters alleged that when the thirty-one acre tract was originally deeded to Donald in 1984, they retained a right of first refusal should any portion of the property be offered for sale; however, it was not until 2006 that they discovered Donald had conveyed a two-acre portion of the property to the Youngs in 1996. Additionally, the Sisters sought to have the 1996 warranty deed set aside as void because the property was part of the Greenwoods’ homestead property, and Carol did not sign the warranty deed. On December 5, 2007, the court filed an “Agreed Judgment Voiding Warranty Deed and Other Relief,” wherein the chancery court set aside the 1996 warranty deed from Donald to the Youngs as void for lack of spousal signature on homestead property.

¶ 4. On February 18, 2009, the Youngs, now grantees of a void deed, filed suit against the Greenwoods and the Sisters in the Winston County Chancery Court to quiet and confirm title of the two acres, claiming an interest in the subject property through adverse possession. The case proceeded to trial on December 1, 2009. On the morning of the trial, the court approved the parties’ agreement to dismiss, with prejudice, the Sisters from the suit; and in return, the Sisters received a right of first refusal by the prevailing party in the Youngs’ suit to quiet and confirm title, leaving the Greenwoods as the only defendants in the case.

¶ 5. The chancery court then heard oral argument on the Greenwoods’ motion in limine, which sought to exclude any evidence of acts occurring prior to December 5, 2007, the date the chancery court voided the 1996 warranty deed, that supported the Youngs’ claim of adverse possession regarding the two acres. The chancellor denied the Greenwoods’ motion in limine. The chancery court then heard testimony from several witnesses and admitted nine exhibits into evidence during the two days of trial.

¶ 6. At trial, Melody testified that in preparation for the execution of the warranty deed in 1996, her father had two surveys conducted to establish the boundaries of the two acres. Melody testified that she personally observed the survey markers upon completion of the second survey, and the survey ribbons remained visible up until their deterioration. Melody also stated that she and her father, Dan, contacted the Noxapater Fire Department and initiated a “control burn” of her grandmother’s abandoned house on the property after Donald conveyed the property to her. Melody further testified she and her husband paid the property taxes for the two acres for ten years, and she obtained an E-911 address for the property in 1999 for purposes of placing a mobile home on the property until she and Gerald could build a house on the property when they retired. Melody stated that at her direction, Charles Ray Greenwood (Ray), her brother, and her father bush-hogged the property at least four times; and a bulldozer was once used to establish a “pad” for a mobile-home site. Melody further testified she possessed no knowledge of Donald’s alleged use of the property from July 1996 until August 2006, and she stated the only time she saw any other family members using the property was strictly as an access to drive to the back of the property to a pond. Finally, Melody testified no one questioned her regarding her ownership of the property until sometime shortly after August 31, 2006, when she received the letter from Tucker, three days after her father’s death and over ten years after Donald had executed the warranty deed to her and Gerald in 1996.

¶ 7. Ray testified in corroboration with Melody’s testimony. Ray stated he remembered when Donald conveyed the two acres to Melody, and after a survey was conducted on the two acres, he saw the metal posts and ribbons marking the property’s boundaries. He testified he bush-hogged the two acres on at least three instances, and his father bush-hogged the property twice. In addition, Ray testified he remembered seeing the results of bulldozer work on the property on at least two occasions — once to remove or bury the debris from the burned house and once to clear a “pad” for a mobile-home site. Ray testified that from the date the warranty deed was executed in 1996 until the date of his father’s death in 2006, he thought Melody, his sister, owned the two acres of property.

¶ 8. Donald also testified at trial. Donald acknowledged that Dan had a survey conducted of the property in anticipation of the execution of the warranty deed in 1996, and he remembered that the property was flagged with stakes and fluorescent pink tape which remained on the property until it rotted off. Donald testified he was not aware the old house on the property was going to be burned, but Carol informed him of the control burn of the house, which he claimed occurred on July 8, 1996, while he was in Hattiesburg, Mississippi. Further, Donald stated that he sold dirt off his remaining acres of property but never the two acres at issue. Donald also testified that improvements were made to the road that crosses the two acres of the property in order for the dirt haulers he contracted to access the dirt pile on his property; however, he admitted that some of the improvements were made prior to 1996 and that any improvements thereafter were made by the contract dirt haulers for the purpose of removing the dirt. Donald stated he hunted on the two acres “some every hunting season” and traveled across the property at least once a week. Donald also testified he bush-hogged the property once in 2006, and he saw Ray bush-hog the property on one other occasion. Donald admitted from the time of the preparation of the deed, July 12, 1996, until August 31, 2006, no action or lawsuit was filed contesting the deed, and he exchanged no cross words with anyone concerning the ownership of the property. When asked why he decided he did not want the Youngs to have the property anymore, Donald replied he realized he treated his family wrongly.

¶ 9. Carol testified she and Donald separated from each other, by agreement, in 2003, and she moved to Philadelphia, Mississippi. Carol provided that she did not return to the marital home; instead, she established a separate residence in a trailer located on the Greenwoods’ remaining land in 2008. Carol stated she had neither seen the Youngs on the property nor any bulldozer work being performed on the two acres. Carol further stated that Donald did not sell dirt off of the two acres during the relevant time periods.

¶ 10. Tessie, Donald’s sister, also testified. Tessie testified that the control burn of the house on the two acres occurred on July 8,1996, and she attended the burning. Tessie also stated she did not see anyone do the bulldozer work on the property, but she did see the results of bulldozer work. Tessie also acknowledged that the property had been bush-hogged three or four times during the ten-year period; however, she never saw the Youngs using the two acres during this time period. Additionally, Tessie testified she had seen the survey stakes and flags on the property.

¶ 11. After the witnesses testified, the chancellor, the parties, and the parties’ attorneys inspected the two acres. At the conclusion of the trial, the chancellor found the Youngs owned the two acres of property in dispute through adverse possession. Aggrieved, the Greenwoods appeal the chancellor’s final judgment and opinion, as well as his ruling on the motion in limine.

STANDARD OF REVIEW

¶ 12. This Court employs a limited standard of review when reviewing the decisions of a chancellor. Pulliam v. Bowen, 54 So.3d 331, 334 (¶ 10) (Miss.Ct.App.2011) (citing Nichols v. Funderburk, 883 So.2d 554, 556 (¶7) (Miss.2004)). “The chancellor’s determinations will only be reversed when they were manifestly wrong, clearly erroneous, or when the chancellor applies an incorrect legal standard.” Id. Generally, a finding that proof was sufficient to sustain an adverse-possession claim is finding of fact and requires the application of the substantial-evidence/manifest-error rule. Id. (citing Walker v. Murphree, 722 So.2d 1277, 1280 (¶ 15) (Miss.1998)).

DISCUSSION

I. MOTION IN LIMINE

¶ 13. The Greenwoods argue the chancellor erred in denying their motion in limine and standing objection which requested the exclusion of evidence or testimony offered to prove adverse possession through the Youngs’ acts occurring prior to December 5, 2007, the date on which the chancellor declared the 1996 warranty deed void. The Greenwoods allege adverse possession cannot be established for any time prior to the voiding of the warranty deed because a claim of adverse possession cannot begin unless the landowner has actual or constructive knowledge that there is an adverse claim against his property, and Donald was never on notice that the Youngs were claiming the land in some method hostile or adverse to the warranty deed. The Greenwoods further contend, based on the Youngs’ “illusory position” as the record title holder of the disputed property as the grantees under the 1996 warranty deed, none of their actions would have provided Donald notice of the Youngs’ attempt to possess the disputed property adversely. Additionally, the Greenwoods argue that any possessory acts by the Youngs on the disputed two acres prior to December 5, 2007, would not be adverse to them, as Donald essentially provided the Youngs his permission to occupy and use the two acres by signing the warranty deed in 1996.

¶ 14. In support of their argument, the Greenwoods cite Washington v. Crowson, 222 So.2d 137, 139 (Miss.1969), for the proposition that, so long as the grantee occupies property by virtue of a covenant in the deed, its possession is not adverse to the grantor. However, we find Washington to be distinguishable from this case. In Washington, the Mississippi Supreme Court found that where a church, which had been built on land conveyed to it by a deed containing a provision for reversion to the grantor in the case the church was no longer maintained on the property, ceased to “maintain a church” on the property, the property at issue reverted to the grantors of the property and the church possessed no claim of adverse possession. Id. at 140. In so finding, the supreme court explained:

Of course if the occupation of the land were held by virtue of the covenant in the deed, the church was bound by the terms of the covenant, and so long as the grantee occupies property by virtue of the covenant in the deed, the church could not obtain title to the property by adverse possession. The possession of the property in that event was not adverse to the grantor. Until the grantee in the deed brought to the attention of the landowner notice that the grantee claimed the land in some method hostile and adverse to the covenant to the deed, adverse possession could not be established.

Id. at 139-40.

¶ 15. Contrarily, in the present case, the chancellor set aside the 1996 warranty deed as void, meaning the warranty deed conveying the two acres to the Youngs in 1996 was void from the beginning, and the Youngs received no rights to the property from the warranty deed. With no rights to the property passing under the void warranty deed, all of the Youngs’ actions affecting the two acres at issue from 1996 forward were adverse and hostile to the Greenwoods’ ownership of the property and color of title. See Avera v. Williams, 81 Miss. 714, 33 So. 501, 501 (1903) (A deed to homestead property, in which the grantor’s wife failed to join, though void, operates as color of title to sustain a claim by adverse possession as against third persons.). See also 2 C.J.S. Adverse Possession § 113 (2003) (“Adverse possession of property under a void or defective deed may ripen into title, and a void or worthless deed may be sufficient to show the hostile character of the possession, or the date on which adverse possession began, and the nature and extent of possession.”); 2 C.J.S. Adverse Possession § 116 (2003) (“A deed to property containing a homestead void for failure of the grantor’s spouse to join therein may constitute color of title within limitation statutes, although such a deed may not constitute ‘title or color of title’ within a limitation act requiring possession under title or color deraigned from the sovereignty of the soil.”).

¶ 16. Accordingly, we find the chancellor did not abuse his discretion by denying the Greenwoods’ motion in limine. This issue is without merit.

II. ADVERSE POSSESSION

¶ 17. The Greenwoods argue that even if this Court affirms the chancery court’s denial of their motion in limine, the Youngs still failed to prove by clear-and-convincing evidence that, by their specific actions, they are entitled to title of the disputed property through adverse possession, pursuant to Mississippi Code Annotated section 15-1-13(1) (Rev. 2003).

¶ 18. This Court recognizes the limited standard of review to be employed by the appellate courts when reviewing a chancellor’s decision. In discussing the applicable standard of review, the Mississippi Supreme Court stated:

It requires little familiarity with the institutional structure of our judicial system to know that this Court does not sit to redetermine questions of fact. Our scope of review is severely limited. Suffice it to say that we have no authority to grant [the] appellant any relief if there be substantial credible evidence in the record undergirding the determinative findings of fact made in the chancery court.

Rawls v. Parker, 602 So.2d 1164, 1167 (Miss.1992) (citing Johnson v. Black, 469 So.2d 88, 90 (Miss.1985)).

¶ 19. Mississippi Code Annotated section 15-1-13(1) governs claims of adverse possession, providing in part:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under the disability of minority or unsoundness of mind the right to sue within ten (10) years after the removal of such disability, as provided in Section 15-1-7. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than thirty-one (31) years.

In order to establish a claim of adverse possession, the party claiming to have adversely possessed the property must show, by clear-and-convincing evidence, that his possession was (1) under a claim of right or ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Pulliam, 54 So.3d at 334 (¶ 13) (citations omitted).

¶ 20. We will discuss each factor of adverse possession separately.

1. Claim of Ownership

¶ 21. “In the end, the ultimate question is whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder on notice that the lands are held under an adverse claim of ownership.” Hill v. Johnson, 27 So.3d 426, 431 (¶ 19) (Miss.Ct.App.2009) (citations omitted). Here, according to Melody’s testimony, the Youngs’ adverse possession of the two acres at issue was completed in 2006, as Donald signed the later-voided warranty deed conveying the two-acre property to the Youngs in 1996, and the Youngs exerted an ownership interest in the two acres from that time until the start of the Sisters’ litigation. The Greenwoods again argue that the Youngs’ possession of the property would not be adverse to Donald, the grantor of the warranty deed, based on the proposition that, so long as the grantee occupies property by virtue of a covenant in the deed, its possession is not adverse to the grantor. See Washington, 222 So.2d at 139. As previously discussed in this opinion, this argument has no merit, and we decline to address it further.

¶ 22. In finding the Youngs established a claim of adverse possession, the chancellor relied upon evidence of the survey markers on the property, the bulldozer work, and the bush-hogging, which were all done by the Youngs or at the direction of the Youngs. The chancellor recognized that the Youngs also paid the taxes on the property for the ten-year period, and the Youngs obtained an E-911 address for the property in 1999. Furthermore, testimony was presented at trial showing that the Greenwoods claimed no ownership of the property until 2006 when the Sisters initiated litigation. Therefore, we find that the Youngs’ claim of ownership of the disputed property is sufficient to establish their claim of adverse possession.

2. Actual or Hostile

¶23. “The actual or hostile occupation of land necessary to constitute adverse possession requires a corporeal occupation, accompanied by a manifest intention to hold and continue to hold the property against the claim of all other persons, and adverse to the rights of the true owner.” Hill, 27 So.3d at 431—32 (¶ 23).

¶ 24. Here, while testimony was presented on behalf of the defense claiming the Youngs were never seen using the disputed property during the relevant time, Melody and Ray presented testimony to the contrary. As recognized by the chancellor, the Youngs, through their employed contractors or designated agents, bush-hogged the property on several occasions and completed bulldozer work on the property in preparation for the pad for their mobile-home site. The Youngs also paid the taxes on the property for the ten-year period. Additionally, the testimony showed the survey markers were visible on the two acres for an extended period of time. Clearly, their actions were sufficient to put others on notice that their possession of the two acres was adverse to the true owner. Melody showed that she and Gerald actually used the property, and their use was hostile to the Greenwoods’ ownership.

¶ 25. While the Greenwoods claim that Donald essentially provided the Youngs his permission to occupy and use the two acres by signing the warranty deed in 1996, we find that no such permission was granted since the 1996 warranty deed was later declared void by the chancery court. Therefore, substantial evidence exists in the record to support the chancellor’s finding.

3. Open, Notorious, and Visible

¶ 26. “The mere possession of land is not sufficient to satisfy the requirement that the adverse possessor’s use be open, notorious, and visible.” Webb v. Drewrey, 4 So.3d 1078, 1083 (¶ 19) (Miss.Ct.App.2009) (citation omitted). An adverse-possession claim will not begin “unless the landowner has actual or constructive knowledge that there is an adverse claim against his property.” Id. “An adverse possessor ‘must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, [know] that an enemy has invaded his domains, and planted the standard of conquest.’ ” Id.

¶ 27. The chancellor found the Youngs’ actions were sufficiently open, notorious, and visible. We find sufficient evidence in the record supporting the chancellor’s conclusion. According to the record, the Youngs maintained and cared for the property by bush-hogging and completing bulldozer work several times on the property from July 1996 until the start of litigation in 2006. Several witnesses acknowledged seeing the results of the bush-hogging and bulldozer woi'k on the two acres. Additionally, the Youngs obtained an E-911 address for the property and paid the taxes on the property from 1996 until 2006. The Youngs never tried to hide or conceal their use of the property. Thus, we find there is substantial evidence to support the chancellor’s finding that the Youngs completed possessory acts that were open, notorious, and visible.

A Continuous and Unintermpted for Ten Years

¶ 28. The chancellor found the Youngs adversely possessed the two acres for a period in excess of ten years in a continuous manner. We find the evidence supports the chancellor’s finding. The Youngs acquired the two acres in 1996 pursuant to the later-voided warranty deed. Based on the record, the Green-woods did not assert their claim of ownership of the property until 2006. In fact, testimony was presented at trial showing that no one questioned or exchanged cross words with the Youngs concerning their ownership of the two acres prior to the initiation of litigation in 2006. Thus, the Youngs’ possession of the property was continuous and uninterrupted from 1996 until 2006, in excess of the ten-year period statutorily required.

5. Exclusive

¶29. “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.” Hill, 27 So.3d at 432 (¶ 27). “Exclusive use is at the most basic level the intent of actual and hostile possession.” Id. “To satisfy the element of exclusivity, ‘the claimant’s conduct must afford an unequivocal indication that he is exercising dominion of a sole owner.’ ” Stone v. Lea Brent Family Invs., L.P., 998 So.2d 448, 455 (¶ 25) (Miss.Ct.App.2008) (citations omitted). “Exclusive use” does not mean that no one else uses the property. Id. “Rather, exclusive use indicates a right to use the land above other members of the general public.” Id. The record shows that the use of the property by members of the Young family living near the property, including Donald, was scant. Conversely, the Youngs, through their third-party agents, maintained the property by bush-hogging and readying it for their own future development. Accordingly, we find there is substantial evidence to support the chancellor’s finding that the Youngs possessed the property exclusive to all others.

6. Peaceful

¶ 30. The adverse possession must be peaceful. Jordan v. Fountain, 986 So.2d 1018, 1023 (¶ 17) (Miss.Ct.App.2008). “The mere existence of a dispute over the use of land does not present an obstacle to satisfy the element of peaceful use.” Hill, 27 So.3d at 432 (¶ 29). “Simple disputes often arise between neighboring landowners, but do not rise to the level of destroying the peaceful existence between them.” Id. The record shows that the Youngs remained in possession of the property from July 1996 forward unchallenged by any other party, until the initiation of litigation in August 2006. By this time, the Youngs had already peacefully possessed the disputed property for a period of time in excess of ten years. Thus, we again find substantial evidence in the record supporting the chancellor’s finding.

¶ 31. The chancellor’s decision was supported by substantial evidence. The evidence presented to the chancery court clearly established each element of adverse possession. While some contradicting testimony was presented in this case, we decline to reverse simply because some of the witnesses testified to the contrary. See Standi v. Farris, 60 So.3d 817, 824 (¶ 14) (Miss.Ct.App.2011) (“If clear[-]and[-]convineing evidence could never be shown in the presence of contradictory testimonies, virtually no case requiring a showing by clear-and-convincing evidence could be proven. Such is clearly not the case.”). Therefore, we find that the chancellor did not abuse his discretion in finding that the Youngs claimed title to the two acres through adverse possession. See Pulliam, 54 So.3d at 334 (¶ 10). Accordingly, this issue is without merit.

¶ 32. THE JUDGMENT OF THE WINSTON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Melody is Dan’s daughter.

      . Dan passed away in August 2006.

      . Both parties note that the Sisters' lawsuit is not the case on appeal before this Court today. However, both parties explain in their appellate briefs the need to explain the complex litigation history involving the property at issue due to the series of litigation over the property.

      . We were provided this information through the Greenwoods' appellate brief.

      . This information is taken from the Green-woods’ appellate brief.

      . The Youngs allege they filed their original "Complaint to Quiet and Confirm Title to Real Estate by Adverse Possession” on November 27, 2007, but the chancery court dismissed the original suit without prejudice for failure to serve the defendants within 120 days of filing suit. The Youngs then filed their "Second Amended Complaint to Quiet and Confirm Title to Real Estate by Adverse Possession” from which this appeal now stems.

      . Melody testified the pond was not on the two acres.

      . The Youngs note that Gerald did not appear at trial, and James C. Mayo, Carol’s attorney, did not attend the inspection of the property.

      . See 2 C.J.S. Adverse Possession § 130 (2003) (citing Washington v. Crowson, 222 So.2d 137 (Miss.1969)) ("While the grantee of an estate on condition subsequent may secure title by adverse possession in a proper case, it is not conceptually logical for such a grantee to acquire an indefeasible estate simply by remaining in possession of the property following a breach of condition; particularly where the possession of such a grantee is purely constructive and he or she has done no act tantamount to a disavowal of their obligation to perform the condition, it will not be regarded as hostile.”).