author: GRIFFIS, P.J.,

text:
    Andrew CONWILL, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00670-COA.
    Court of Appeals of Mississippi.
    Nov. 29, 2011.
    Rehearing Denied May 15, 2012.
    Certiorari Denied Aug. 9, 2012.

      Andrew Conwill, appellant, pro se.
    Office of Attorney General by W. Glenn Watts, attorney for appellee.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Andrew Conwill pleaded guilty to aggravated assault upon Charles Kuebler. Conwill later filed a motion for post-eonviction relief (PCR) in the circuit court, in which it was argued that: (1) a nolle pro-sequi was improperly entered; (2) Con-will’s guilty plea was involuntary because the State had threatened to use an illegally obtained confession against him; (3) legal counsel should have been appointed to assist Conwill with his PCR motion; and (4) Conwill received ineffective assistance of counsel because his attorney had advised him that he would be eligible for parole after serving twenty-five percent of his sentence. The circuit court denied the PCR motion without an evidentiary hearing. Finding no error with the circuit court’s denial, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 4, 2004, Conwill entered Kuebler’s residence at 35 Breakers Lane, Ridgeland, Mississippi, where he saw Kue-bler and a female (Conwill’s then fiancé) lying together on the couch asleep. Conwill then struck Kuebler repeatedly with his fists, causing damage to the bones in Kue-bler’s face and jaw.

¶ 3. On April 14, 2004, Conwill entered Collin King’s and Kuebler’s residence at 715 Rice Road, Apartment 39D, Ridgeland, Mississippi, after kicking open the front door to the residence. Conwill ran from the residence upon encountering King, who was the only person present inside the residence at the time. As Conwill fled, he reportedly shouted out to King that if Kue-bler “doesn’t stop talking ..., he’s dead.”

114. In July 2004, a Madison County grand jury returned a single-count indictment against Conwill, styled cause number 2004-0557, charging him with breaking and entering into the residence at 35 Breakers Lane on January 4, 2004, with the intent to commit the crime of assault. The same grand jury also returned a single-count indictment against Conwill, styled cause number 2004-0558, charging him with breaking and entering into the residence at 715 Rice Road, Apartment 39D on April 14, 2004, with the intent to commit the crime of assault.

¶ 5. In September 2005, a subsequent grand jury returned a two-count indictment against Conwill, styled cause number 2006-004. Count one of this indictment charged Conwill with breaking and entering into the residence at 35 Breakers Lane on January 4, 2004, with the intent to commit the crime of assault. Count two charged Conwill with breaking and entering into the residence at 715 Rice Road, Apartment 39D on April 14, 2004, with the intent to commit the crime of assault.

¶ 6. In January 2006, the circuit court granted a nolle prosequi on the July 2004 indictments, cause numbers 2004-0557 and 2004-0558, respectively, with “re[-]indictment” stated as the reason.

¶ 7. Cause number 2006-004 went to trial in April 2008. Sometime prior to trial, Conwill had requested and was granted a severance of the two counts in his indictment, with no objection from the State. The State then proceeded on count two (the April 14 burglary charge) instead of count one (the January 4 burglary charge). Following a two-day jury trial, Conwill was found guilty of breaking and entering into the residence located at 715 Rice Road with the intent to commit assault.

¶ 8. At the conclusion of the trial, the State informed the circuit court that it wished to nolle prosequi count one of cause number 2006-004. On May 12, 2008, the circuit court sentenced Conwill to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years to serve, ten years suspended, and five years of post-release supervision.

¶ 9. In June 2008, a Madison County grand jury indicted Conwill for aggravated assault upon Kuebler at 35 Breakers Lane on January 4.

¶ 10. In December 2008, represented by new counsel, Conwill entered a guilty plea to the crime of aggravated assault. The circuit court accepted Conwill’s guilty plea, and, in accordance with the State’s sentencing recommendation, the court sentenced Conwill to twenty years in the custody of the MDOC, with seventeen years to serve, three years suspended, and three years of post-release supervision. The circuit court ordered this sentence to run concurrently with Conwill’s sentence for the burglary conviction.

¶ 11. Conwill timely filed a PCR motion, which the circuit court denied. This appeal followed.

STANDARD OF REVIEW

¶ 12. “When reviewing a circuit court’s denial of a PCR motion, factual findings will not be disturbed unless they are clearly erroneous.” Williams v. State, 64 So.3d 1037, 1039 (¶ 6) (Miss.Ct.App.2011). Questions of law are reviewed de novo. Ruff v. State, 910 So.2d 1160, 1161 (¶ 7) (Miss.Ct.App.2005).

DISCUSSION

¶ 13. At the outset, we find that Conwill fails to argue on appeal two claims presented in his PCR motion to the circuit court, those being that ConwilPs legal counsel misadvised him with regard to parole eligibility and that Conwill was entitled to legal assistance with his PCR motion. Accordingly, we hold that Conwill has abandoned these two issues; thus, they will not be considered on appeal. Fluker v. State, 17 So.3d 181, 182-83 (¶ 4) (Miss.Ct.App.2009). We will address Con-will’s other two issues.

I. Nolle Prosequi

¶ 14. Conwill claims the State engaged in prosecutorial misconduct by requesting a nolle prosequi on the January 4 burglary charge and then re-indicting him for the crime of aggravated assault. Con-will avers that the State was required, but failed, to show “manifest necessity” to nolle pros the burglary charge, when done for the purpose of re-indicting him for aggravated assault. Conwill claims the State was motivated by the lack of evidence for the January 4 burglary charge, which came to light during his trial for the April 14 burglary charge, when defense witness, Jeffrey McDonald, who was Kue-bler’s roommate at 35 Breakers Lane in January 2004, testified that he had invited Conwill inside the residence prior to the assault incident on January 4. Conwill asks that we vacate both his conviction and sentence and return him to the position he maintained prior to when the State nolle prosequied the January 4 burglary charge.

¶ 15. Mississippi Code Annotated section 99-15-53 (Rev.2007) provides:

A district attorney, or other prosecuting attorney, shall not compromise any cause or enter a nolle prosequi either before or after indictment found, without the consent of the court; and, except as provided in the last preceding section, it shall not be lawful for any court to dismiss a criminal prosecution at the cost of the defendant, but every cause must be tried unless dismissed by consent of the court.

¶ 16. “[T]he entry of a nolle pro-sequi unconditionally dismisses a criminal indictment, but without prejudice to the [S]tate to seek re-indictment.” Payton v. State, 41 So.3d 713, 717 (¶12) (Miss.Ct.App.2009) (citation omitted). Generally, the defendant may be reindicted and retried for the same offense. Beckwith v. State, 615 So.2d 1134, 1147 (Miss.1992). Or, the defendant may be indicted for “another offense actually committed for which the defendant was not tried.” State v. Thornhill, 251 Miss. 718, 723, 171 So.2d 308, 310 (1965).

¶ 17. Duncan v. State, 939 So.2d 772 (Miss.2006) illustrates the State’s authority to nolle pros an original indictment and indict for a different offense. In Duncan, the defendant was initially indicted on capital murder for killing an individual during the commission of an armed robbery. Id. at 774 (¶ 1). Following two mistrials, each due to a hung jury, the State requested and was granted a nolle prosequi on the original indictment. Id. at (¶¶ 1-2). The State subsequently indicted the defendant under two counts, murder and armed robbery, arising from the same facts and circumstances. Id. at (¶ 2). At the third trial, the defendant objected to the new indictment on the grounds of double jeopardy and speedy trial, which the circuit court overruled. Id. at 776 (¶ 12). The jury was unable to reach a verdict on the murder charge, but it found the defendant guilty of armed robbery. Id. at 774 (¶ 3). On appeal, the supreme court affirmed the defendant’s robbery conviction, holding that Mississippi law permits the dismissal of an indictment for re-indictment “on a separate charge arising out of the same facts and circumstances.” Id. at (¶ 15) 776-77 (quoting- State v. Shumpert, 723 So.2d 1162, 1167 (Miss.1998)).

¶ 18. Here, we find that, under Mississippi law, the State had the authority to seek a nolle prosequi for the January 4 burglary charge and to indict Conwill subsequently for the offense of aggravated assault. And Conwill’s contention that the State was required to show “manifest necessity” in order to do so in this instance is meritless.

¶ 19. The standard of “manifest necessity,” as used in the cases from which Conwill principally relies, is a term of art in double-jeopardy jurisprudence. The phrase has come to mean that once jeopardy attaches to a criminal charge brought to trial, a “high degree” of necessity is required “before concluding that a mistrial is appropriate.” See Jones v. State, 398 So.2d 1312, 1318 (Miss.1981) (quoting Arizona v. Washington, 434 U.S. 497, 506, 98 S.Ct. 824, 54 L.Ed.2d 717 (1977)). Manifest necessity was not applicable in Con-will’s case because jeopardy, as Conwill acknowledges, had not yet attached to the January 4 burglary charge when the State sought to nolle pros the charge.

¶ 20. Lastly, Conwill’s guilty plea to aggravated assault waived any non-ju-/ risdictional rights or complaints incidental to trial. Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991). This includes complaints of prosecutorial misconduct. Evans v. State, 61 So.3d 922, 925 (¶ 9) (Miss.Ct.App.2011). Accordingly, we find no merit to Conwill’s argument that the State had engaged in prosecutorial misconduct by its decision to nolle prosequi the burglary charge and indict for aggravated assault.

II. Voluntariness of Conwill’s Guilty Plea

¶ 21. Conwill claims that his guilty plea was involuntary because he was coerced by his probation officer into making an incriminating statement on the pre-sentence investigation report for his April 14 burglary conviction, in which he admitted to beating up Kuebler on January 4. Conwill alleges that the State then threatened to use his statement against him if he elected to take the aggravated-assault charge to trial.

¶ 22. Based on our review of the record, the circuit court explained to Conwill prior to accepting his guilty plea that when a defendant enters a guilty plea, the defendant waives certain rights, challenges, and/or claims that otherwise may be available to him in a trial setting. In Wright v. State, 57 So.3d 683, 686-87 (¶¶ 9-10) (Miss. Ct.App.2011), we held that this includes an allegation of a coerced confession.

¶23. Further, Conwill declared in his plea petition that no officer or agent of any 'branch of government had threatened, forced, or coerced him in any manner with regard to his decision to enter a guilty plea. During his plea colloquy, Conwill told the circuit court that he had reviewed and understood everything contained in the petition and that every statement or representation he made therein was true and correct. Conwill then told the circuit court that no one pressured, intimated, threatened, or coerced him into pleading guilty to the crime of aggravated assault, and no one promised him any special treatment in exchange for his guilty plea.

¶ 24. As this Court has held, great weight may be placed on a defendant’s sworn testimony given at a plea hearing, and the defendant faces a “high hurdle in recanting that testimony.” Pevey v. State, 914 So.2d 1287, 1290 (¶ 8) (Miss.Ct.App.2005) (citing Calvert v. State, 726 So.2d 228, 231 (¶ 10) (Miss.Ct.App.1998)). The only evidence offered by Conwill in support of his claim were his own unsupported assertions. The circuit court rejected this evidence, and we concur with the court’s decision. Cf. Smith v. State, 636 So.2d 1220, 1224 (Miss.1994) (where the Mississippi Supreme Court stated, “[w]hen we compare [Ricky Lee Smith’s] previous sworn testimony during his guilty plea with his current affidavit, the latter is practically rendered a ‘sham,’ thus allowing the summary dismissal of the petition to stand”). This issue is without merit.

¶ 25. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . See, e.g., Illinois v. Somerville, 410 U.S. 458, 459, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) (holding that an Illinois trial judge’s determination to grant a mistrial over the defendant’s objection, due a procedural error that would have resulted in reversal on appeal, met manifest-necessity requirement); Wilson v. State, 574 So.2d 1324, 1333 (Miss.1990) (noting that a hung jury is a "well recognized” example of manifest necessity); cf. McNeal v. Hollowell, 481 F.2d 1145, 1152 (5th Cir.1973) (holding that a trial judge’s decision to grant State’s request for a mistrial in order to allow the State an opportunity to shore up weaknesses in its case against the defendant did not meet the manifest-necessity requirement).

      . Though inconsequential to our disposition of the issue, we agree with the State that the statement of specific facts contained in Con-will’s PCR motion is not properly sworn out. Because the circuit court did not specifically address this matter, neither shall we.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Jason Bernard FOXWORTH a/k/a Jason Benard Foxworth, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01192-COA.
    Court of Appeals of Mississippi.
    Nov. 29, 2011.
    Rehearing Denied May 22, 2012.
    Certiorari Denied Aug. 9, 2012.

      Keith Pisarich, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. On May 28, 2006, Jason Bernard Foxworth was arrested for possession of a controlled substance, in addition to other charges. Following a jury trial held in the Harrison County Circuit Court in June 2010, Foxworth was convicted of possession of a controlled substance and sentenced as a habitual offender to life, without eligibility for parole or probation, in the custody of the Mississippi Department of Corrections (MDOC). Foxworth now appeals, asserting the circuit court erred by (1) denying his motion to suppress evidence found during the search of his person incident to his arrest; (2) granting the State’s motion to amend the indictment so as to allege habitual-offender status; (3) limiting him to six peremptory challenges during jury venire; (4) overruling his motion for a new trial or, in the alternative, a judgment not withstanding the verdict (JNOV) based on the State’s failure to prove he “knowingly” possessed cocaine; and (5) sentencing him to life imprisonment without eligibility for parole or probation in violation of Mississippi Code Annotated section 41 — 29—150(g) (Supp.2011). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 28, 2006, at approximately 5:30 p.m., Officer Christopher L. Keckler of the Gulfport Police Department stopped a vehicle for speeding. Foxworth was the driver of the vehicle. Initially, Foxworth provided Officer Keckler with a false name. He then corrected himself and admitted he did not have a driver’s license. Foxworth was placed under arrest for driving without a license, having no insurance, speeding, and providing false information. Officer Keckler proceeded to conduct a search incident to Foxworth’s arrest. During the search, Officer Keck-ler required Foxworth to spread his feet as he ran his hand down the outside of Foxworth’s clothing. He thén felt an object inside of Foxworth’s pants. The object began to fall, and Officer Keckler grabbed the object with one hand while reaching inside Foxworth’s pants with his other hand. At that point, he retrieved the object from Foxworth’s undergarments. The object was a clear plastic bag containing an off-white substance Officer Keckler recognized as cocaine. Foxworth was then placed under arrest for possession of cocaine.

¶ 3. On June 23, 2010, a jury in the Harrison County Circuit Court found Fox-worth guilty of possession of a controlled substance. He was sentenced as a habitual offender to life imprisonment without eligibility for parole or probation. The sentence was ordered to be served concurrently with the sentence he is presently serving for an unrelated charge. All sentences were ordered to be served in the custody of the MDOC. After his conviction, Foxworth filed a motion for a new trial or, in the alternative, a JNOV. The circuit court overruled Foxworth’s post-trial motion. Foxworth now appeals.

DISCUSSION

I. Search Incident to Arrest

¶ 4. In his first assignment of error, Foxworth argues the circuit court improperly denied his motion to suppress the evidence obtained in the search incident to his arrest. He contends the search exceeded the permissible scope of a search incident to arrest for non-violent misdemeanor offenses. Foxworth argues he was subjected to a strip search in violation of his constitutional rights.

¶ 5. “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). In a search incident to arrest, an officer is justified in searching “not only for weapons but also for evidence that might be easily destroyed.” Ellis v. State, 573 So.2d 724, 726 (Miss.1990). In these circumstances, the narrow limits of a Terry search do not apply. Id.

¶ 6. While a search incident to arrest can exceed the scope of some other warrantless searches, the scope of the search is not limitless. “As intrusiveness increases, the amount of suspicion necessary to justify the search correspondingly increases.” United States v. Vega-Barvo, 729 F.2d 1341, 1344 (11th Cir.1984). There are certain limitations regarding the use of strip searches. While a strip search has not specifically been defined by Mississippi common law, surrounding jurisdictions have addressed the term. A strip search has been defined as “any exposure or observation of a portion of a person’s body where that person has a ‘reasonable expectation of privacy.’ ” Doe v. Calumet City, Ill., 754 F.Supp. 1211, 1215 n. 9 (N.D.Ill.1990) (citation omitted). A strip search has also been defined as “the removal of the arrestee’s clothing for inspection of the under clothes and/or body.” State v. Nieves, 383 Md. 573, 861 A.2d 62, 70 (2004) (citing William J. Simonitsch, Visual Body Cavity Searches Incident to Arrest: Validity Under the Fourth Amendment, 54 U. Miami L.Rev. 665, 667 (2000)). Black’s Law Dictionary 1469 (9th Ed.2009) defines a strip search as a “search of a person conducted after that person’s clothes have been removed, the purpose [usually] being to find any contraband the person might be hiding.”

¶ 7. In this case, Officer Keckler reached inside Foxworth’s pants and undergarments to remove an item he believed to be a controlled substance. At no point was Foxworth forced to remove any clothing. There is also no indication that any part of his body was ever exposed to the public. He remained fully clothed during the entire search. The Mississippi Supreme Court has upheld cases where the officer pulled a bag out of the defendant’s belt line and also where officers retrieved evidence from the pocket of the defendant. See Ellis, 573 So.2d at 725; Johnson v. State, 999 So.2d 360, 365 (¶ 23) (Miss.2008). While those cases do not directly address the issue of a strip search, the conduct of the police officers in those cases was found to be appropriate. The actions taken by Officer Keckler are similar to the conduct in those cases. He simply retrieved evidence from inside Foxworth’s clothing. Because no strip search occurred and the search incident to arrest was appropriate, we find no error.

II. Habitual-offender Status

¶ 8. Foxworth asserts the circuit court erred by granting an amendment to the indictment so as to allege habitual-offender status. Foxworth argues his status as a habitual offender is invalid because the offense date of his second conviction occurred after the offense date in the instant case. Foxworth was first convicted in December 1997 of two counts of armed robbery. His second conviction of capital murder occurred in November 2007. His conviction in this case occurred on June 23, 2010.

¶ 9. This Court has previously held there is “no requirement that a prior felony conviction used to enhance a sentence must have been entered before the crime occurred for which [the] sentence is to be pronounced.” Sims v. State, 775 So.2d 1291, 1293 (¶ 12) (Miss. Ct.App.2000). The pertinent habitual-offender statute states:

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 and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss.Code. Ann. § 99-19-83 (Rev.2007).

¶ 10. The only date requirement in the statute is that the enhancing conviction precede the new conviction. Sims, 775 So.2d at 1293 (¶ 13). There is no requirement regarding the date of the offense of each conviction. Here, Foxworth was previously convicted in December 1997 and November 2007, both of which occurred before the June 2010 conviction in this case. Because of his prior two convictions, Foxworth is subject to the habitual-offender statute. Accordingly, we find the circuit court did not err by granting an amendment to the indictment so as to allege habitual-offender status.

III. Peremptory Challenges

¶ 11. Foxworth next argues the circuit court erred by limiting him to six peremptory challenges during the jury ve-nire. He contends that under Mississippi Rule of Uniform Circuit and Court 10.01, he should have been allowed twelve peremptory challenges because he faced life in prison due to his status as a habitual offender.

¶ 12. Rule 10.01 states in part:

In cases wherein the punishment may be death or life imprisonment, the defendant and the prosecution shall have twelve (12) peremptory challenges for the selection of the regular twelve jurors. These challenges may not be used in the selection of an alternate juror or jurors.
In felony cases not involving the possible sentence of death or life imprisonment, the defendant and the prosecution shall have six (6) peremptory challenges for the selection of the twelve regular jurors. These challenges may not be used in the selection of an alternate juror or jurors.

¶ 13. The indictment charges Foxworth with possession of a controlled substance, which is not a category of offenses for which one is entitled to twelve peremptory challenges. The rule entitling a' defendant to additional peremptory challenges only applies to capital offenses. A capital offense is defined as, “criminal cases, offenses[,] and crimes punishable by death or imprisonment for life in the state penitentiary.” Miss.Code Ann. § 1-3-4 (Rev. 2005). The statutory sentence for Fox-worth’s conviction of possession of cocaine is “imprisonment for not less than four (4) years nor more than sixteen (16) years.” Miss.Code Ann. § 41-29-139(c)(l)(C) (Supp.2011). Possession of a controlled substance, such as cocaine, is a noncapital offense. While Foxworth did face life imprisonment, he was only subject to this sentence because of his status as a habitual offender. Case law clearly establishes that the possibility of life imprisonment as a habitual offender does not entitle one to twelve peremptory challenges under Rule 10.01. See, e.g., Yates v. State, 396 So.2d 629 (Miss.1981).

¶ 14. The Mississippi Supreme Court addressed this exact issue in Yates, 396 So.2d at 630. In Yates, the defendant was convicted of cattle theft and sentenced as a habitual offender to life imprisonment. Id. The supreme court stated: “The fact that the indictment advised the defendant that he was subject to a life imprisonment punishment as a habitual criminal ... has nothing to do with a special venire or twelve peremptory challenges.” Id. Habitual-offender status is not considered a capital crime and does not entitle one to additional peremptory challenges because the statute “does not make it a crime for one to be a multiple offender even though it affects severity of punishment.” Id. (citing Wilson v. State, 395 So.2d 957, 961 (Miss.1981)).

¶ 15. The supreme court addressed the issue again in Osborne v. State, 404 So.2d 545 (Miss.1981), shortly after the Yates decision. In Osborne, the defendant was convicted of carrying a concealed weapon after a felony conviction. Id. at 546. He was sentenced to life imprisonment as a habitual offender. Id. The supreme court found the principal offense was neither a capital crime nor an offense that entitled the defendant to twelve peremptory challenges. The supreme court reasoned:

The jury only determines the guilt of the accused on the principal offense and does not consider the prior convictions which bring into consideration the life sentence under the habitual[-]offender[ ] statute. The trial judge, in a separate hearing, determines the applicability of the habitual[-]offender[ ] statute and the sentencing. Thus, the special challenges to the jury allowed a defendant charged with a capital crime are not necessitated when the principal offense is noncapital.

Id.

¶ 16. This Court addressed the issue in Jones v. State, 902 So.2d 593 (Miss.Ct.App.2004). In Jones, the defendant was convicted of robbery, but he was sentenced under the habitual-offender statute. Id. at 595 (¶4). Using the same reasoning as Osborne, this Court found “because Jones’s offense was noncapital, the statutory and rules provisions which provide extra peremptory challenges to the venire in capital cases were inapplicable.” Id. at 599 (¶ 19).

¶ 17. Foxworth asks this Court to reconsider these earlier case-law precedents. Nonetheless, we will not ignore clearly established case law. The jury found Fox-worth guilty of possession of cocaine, a controlled substance, which is a noncapital offense. Because Foxworth’s offense was noncapital, the rules providing twelve peremptory challenges in capital cases do not apply. Therefore, Foxworth was only entitled to the regular number of six peremptory challenges. We find this issue is without merit.

IV. JNOV/New Trial

¶ 18. In his next assignment of error, Foxworth challenges the circuit court’s denial of his motion for a new trial or, in the alternative, a JNOV. He argues the circuit court erred by denying his motion because the State failed to provide evidence that Foxworth “knowingly” possessed cocaine.

¶ 19. In order to convict a defendant of possession of a controlled substance, the State must prove he had actual or constructive possession of the controlled substance, coupled with knowledge of the presence of the drug. Miss.Code Ann. § 41-29-139(c) (Supp.2011). “This [Cjourt must weigh the facts and circumstances of [the] individual case to determine whether the State has met their burden.” Nance v. State, 948 So.2d 459, 461 (¶ 5) (Miss.Ct.App.2007) (citing Kerns v. State, 923 So.2d 196, 199-200 (¶11) (Miss.2005)). The State is required to prove “that [the] defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Id.

A. Motion for a New Trial

¶ 20. A motion for a new trial challenges the weight of the evidence. Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). When reviewing a denial of a motion for a new trial, “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.” Id. (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

¶ 21. In this case, the jury’s verdict did not present an “unconscionable injustice,” and the State provided ample evidence to support a conviction. The jury heard the testimony of Officer Keckler who described the events of that night and his search of Foxworth. He also testified regarding the bag of cocaine found in Fox-worth’s pants. The jury also heard the testimony of Timothy Gross from the Mississippi State Crime Laboratory. Gross testified that the bag found on Foxworth contained approximately 7.6 grams of cocaine, a Schedule II controlled substance. Officer Keckler’s testimony detailing where and how he found the cocaine, in conjunction with Gross’s testimony about the amount of the substance, is sufficient to prove Foxworth was in possession of an illegal amount of a Schedule II controlled substance. Therefore, the verdict is not against the overwhelming weight of the evidence.

B. Motion for a JNOV

¶ 22. A motion for a JNOV implicates the sufficiency of the evidence. Bush, 895 So.2d at 843 (¶ 16). “[T]he 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[.]’” Id. If, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, this Court will affirm the denial of the motion for a JNOV. Id.

¶ 28. Foxworth cites Flores-Figueroa v. United States, 556 U.S. 646, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009), as authority for his proposition that the State failed to prove he “knowingly” possessed cocaine. However, in Flores-Figueroa, the United States Supreme Court was addressing the portions of the statute to which the “knowingly” requirement applied. That case is not applicable to the case at hand. Under Mississippi Code Annotated section 41-29-139(c), the term “knowingly” clearly applies to the possession of the controlled substance. The actual issue is whether the State failed to prove that element of the crime.

¶ 24. Considering the evidence in the light most favorable to the verdict, the State established Foxworth did knowingly possess cocaine. The cocaine was discovered inside of Foxworth’s undergarments packaged in a clear plastic bag. It is reasonable to infer from the location of the cocaine that Foxworth knew he was illegally in possession of a controlled substance. If evidence of a controlled substance found in a defendant’s undergarments cannot prove the defendant had knowledge of that substance, the State would have an almost impossibly high burden to meet. It is difficult to think of a circumstance in which it is more likely that one did, in fact, know he or she was in possession of a controlled substance. This Court has repeatedly upheld convictions where the only evidence to prove the knowledge requirement was actual possession. Nance, 948 So.2d at 461 (¶ 6) (upholding a conviction of possession of a controlled substance when cocaine was found on the defendant’s person during a routine booking at the jail house); Harris v. State, 921 So.2d 366, 372 (¶27) (Miss.Ct.App.2005) (finding evidence sufficient to support a conviction of possession of cocaine where the State presented evidence of an officer who testified he saw the defendant possess cocaine); Burnett v. State, 876 So.2d 409, 412 (¶12) (Miss.Ct.App.2003) (finding the defendant knowingly possessed cocaine when it was discovered on his person during a search incident to arrest).

¶ 25. We find the circuit court did not err in denying Foxworth’s motion for a new trial or, in the alternative, a JNOV.

V. Sentence

¶ 26. In his final argument, Fox-worth contends his sentence as a habitual offender of life imprisonment without eligibility for parole or probation based on a conviction of possession of a controlled substance violates Mississippi Code Annotated section 41-29-150(g), which states: “It is the intent and purpose of the Legislature to promote the rehabilitation of persons convicted of offenses under the Uniform Controlled Substances Law.”

¶ 27. “Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Clay v. State, 20 So.3d 743, 747 (¶ 9) (Miss.Ct.App.2009) (quoting Hoops v. State, 681 So.2d 521, 537 (Miss.1996)). Furthermore, “[i]t is the [Legislature's duty to set the length of sentences for criminal offenses and not the duty of this Court.” Burrell v. State, 727 So.2d 761, 769 (¶ 26) (Miss.Ct.App.1998). Because the sentence imposed on Foxworth is within the guidelines set out by the Legislature in Mississippi Code Annotated section 99-19-83, we find no error.

¶ 28. Although no discussion is required on this issue, we will further address Fox-worth’s argument. Foxworth argues the sentence of life imprisonment without eligibility for parole or probation based on an underlying controlled-substance conviction would negate the purpose of section 41-29-150(g) — that purpose being rehabilitation. Foxworth is subject to the habitual-offender statute because of his previous two convictions, in addition to his conviction in this case. While it is the Legislature’s intent to rehabilitate those addicted to controlled substances, the Legislature, in enacting section 99-19-83, also intended to prevent recidivism of those unable to be rehabilitated. It was surely not the intent of the Legislature in enacting section 41-29-150(g) to allow defendants to escape habitual-offender status simply because their third conviction is a drug offense. Thus, this argument is without merit.

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

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

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


author: GRIFFIS, P.J., ISHEE, J.,

text:
    CITY OF JACKSON, Mississippi, Appellant v. Basil THORNTON, Appellee.
    No. 2010-CA-00910-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2011.
    Rehearing Denied May 15, 2012.
    Certiorari Denied Aug. 16, 2012.

      Pieter Teeuwissen, Claire Barker Hawkins, attorneys for appellant.
    J. Christopher Klotz, attorney for appel-lee.
   GRIFFIS, P.J.,

for the Court:

¶ 1. In December 2004, Isaiah Robertson, a minor, stole a Ford Expedition sports-utility-vehicle belonging to Michael Fowler. After a high-speed chase between officers with the Jackson Police Department (JPD) and Robertson, Robertson collided with Kewania Lewis and Basil Thornton. Thornton suffered numerous injuries and filed suit in Hinds County Circuit Court against the City of Jackson (City) for the JPD officers’ actions. After a bench trial, the circuit judge issued a lengthy order that awarded $800,000 to Thornton and apportioned 80% liability to the City and 20% liability to Robertson.

¶ 2. On appeal, the City asserts that: (1) the circuit court erred in apportioning fault between the City, Robertson, and Lewis; and (2) the damages awarded are against the overwhelming weight of the evidence. We find reversible error in the trial court’s apportionment of fault. Therefore, we reverse and remand for further proceedings consistent with this opinion.

STATEMENT OF FACTS

¶ 3. On December 15, 2004, Fowler left his vehicle running while he entered J & J Quick Stop on Bounds Street in Jackson, Mississippi. While Fowler was in the store, Robertson, who was approximately fifteen years old at the time of the incident, stole the vehicle. Fowler contacted JPD; he was met by Officer John Strong at the scene of the crime. Fowler identified Robertson as the person who had stolen his vehicle. Shortly thereafter, Officer Strong was informed that the vehicle had been located, and Officer Strong instructed Fowler to get inside his police cruiser.

¶ 4. Meanwhile, Officer Kenneth Taitón, who had been advised of the crime, discovered Robertson in the stolen vehicle parked at a nearby apartment complex. Upon observing Officer Taitón, Robertson left the parking lot of the apartment complex, and Officer Taitón began following him. A few minutes later, after Robertson ran a traffic light and Officer Taitón confirmed the license plate of the stolen vehicle, Officer Taitón activated his blue lights and his siren, signaling for Robertson to pull over. A high-speed chase ensued with Officer Taitón leading the chase; Officer Strong, with Fowler in his vehicle, followed Officer Taitón and Robertson. After approximately five minutes, Robertson crashed the vehicle into Lewis’s vehicle and Thornton’s vehicle.

¶ 5. At the time of the accident, Lewis had been stopped at a red traffic light and was searching for something in her car when she noticed that the traffic light had turned green. Thornton was stopped at the traffic light as well, having just dropped his children off at a nearby school. Thornton’s vehicle was located diagonally to Lewis’s vehicle and directly opposite from the oncoming stolen vehicle. Lewis proceeded into the intersection without looking to her right or left for illegally proceeding traffic, and her vehicle was struck by Robertson. After crashing into Lewis’s vehicle, Robertson ricocheted off of Lewis’s vehicle and hit Thornton’s vehicle. Robertson then fled the scene on foot, but he was quickly captured.

¶ 6. On June 20, 2006, Thornton filed a complaint against the City. At the bench trial in November 2009, witnesses testified that: Robertson had run numerous red traffic lights during the chase; he had traveled anywhere between fifty-five and eighty-five miles per hour in forty-mile-per-hour speed zones; he had driven erratically through heavily populated streets and a private yard; and he was traveling through areas in close proximity to schools, residential neighborhoods, a church, and a daycare.

¶ 7. The evidence of Thornton’s injures presented at trial showed that because of the wreck, he had a broken vertebrae in his neck, broken foot, completely severed jaw muscle, glass imbedded in his head and face, and severe and disfiguring lacerations to his face and head. At the time of the crash, Thornton was an officer with the Richland Police Department and worked a second job at a local Greyhound Bus Station. Evidence of Thornton’s lost wages and medical expenses were also shown, as well as evidence of other non-economic damages suffered by Thornton due to the crash.

¶8. On May 6, 2010, the circuit judge entered a fifteen-page memorandum of findings of fact and conclusions of law in conjunction with the judgment. The circuit court found that the City had incurred liability through JPD’s high-speed pursuit of Robertson, which the circuit court determined was “extreme, reckless, and an unreasonable danger to the public.” Furthermore, the circuit court concluded that the JPD officers had disregarded JPD policy regarding pursuit of suspects by not terminating the chase with Robertson after witnessing Robertson’s reckless driving and obvious refusal to yield to the police and by failing to advise the JPD supervisor on duty of Robertson’s excessive speed and dangerous conduct.

¶ 9. The circuit court considered the following in determining Thornton’s damages: medical and hospital bills, lost wages and earning capacity, physical injuries and disfigurement, pain and suffering, and loss of enjoyment of life. In its final judgment, the circuit judge awarded Thornton $375,000, which was statutorily reduced to $300,000. Thereafter, the circuit court determined the City was the primary proximate cause of the accident and Thornton’s damages, and the court apportioned 80% liability to the City and 20% liability to Robertson.

DISCUSSION

¶ 10. It is well settled that the findings of a circuit judge, sitting without a jury, “are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Mayor and Bd. of Aldermen, City of Ocean Springs v. Homebuilders Ass’n of Miss., Inc., 932 So.2d 44, 48 (¶ 6) (Miss.2006) (citation and quotation omitted). “This Court will not disturb those findings unless they are manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” City of Jackson v. Perry, 764 So.2d 373, 376 (¶ 9) (Miss.2000) (citation omitted).

I. Reckless Disregard

¶ 11. Suits against a municipality are brought under the Mississippi Tort Claims Act. Miss.Code Ann. § 11-46-1 to -23 (Rev.2002; Supp.2011). In order for a municipality to waive governmental immunity from suit, the state actor in question or its employee must be found to have “acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.” Miss.Code Ann. § ll-46-9(l)(c) (Supp. 2011). The City cites to Ogburn v. City of Wiggins, 919 So.2d 85 (Miss.Ct.App.2005) to support its argument that the JPD officers did not act in reckless disregard and that their actions were not the proximate cause of Thornton’s injuries.

¶ 12. Ogbum involved the wrongful death of Lomax Ogburn, a motorist who was struck by a vehicle driven by John Wortham and pursued by City of Wiggins Police Officer Jamie Smith. Id. at 87 (¶ 1). Officer Smith began following Wortham after witnessing him speeding and driving erratically in Wiggins, Mississippi. Id. at 87 (¶ 3). After pursuing Wortham for approximately one or two minutes, Officer Smith lost sight of the vehicle. Id. at 87 (¶ 4). Shortly thereafter, Officer Smith spotted the aftermath of a crash involving Wortham and Ogburn. Id. at 87-88 (¶ 4). Ogburn was killed in the crash, and her family filed suit against the City of Wiggins for her wrongful death, claiming Officer Smith had acted with reckless disregard in his pursuit of Wortham. Id. at 88 (¶ 6). On appeal, we reiterated the following factors that must be considered in determining whether a police chase constitutes reckless disregard:

(1) length of chase; (2) type of neighborhood; (3) characteristics of the streets; (4) the presence of vehicular or pedestrian traffic; (5) weather conditions and visibility; and (6) the seriousness of the offense for which the police are pursuing the vehicle.

Id. at 88-89 (¶ 10) (citing City of Jackson v. Brister, 838 So.2d 274, 280 (¶ 22) (Miss.2003)). We ultimately determined Officer Smith had not acted in reckless disregard. Id. at 91 (¶ 19). In particular, we referenced an expert witness’s testimony that “given the short distance, rural area, seriousness of the offenses, and other factors, the entire pursuit was appropriate.” Id. at 90 (¶ 16).

¶ 13. By contrast, in Brister, which is referenced in Ogbum, the Mississippi Supreme Court reviewed the actions of JPD officers after a high-speed chase resulted in the death of Jamie Boyll. Brister, 838 So.2d at 276 (¶ 1). On the day of the incident, Elizabeth Slater was reported to JPD for having allegedly attempted to pass a forged check at a local bank. Id. JPD officers spotted Slater getting into her vehicle at the bank, and they began pursuing her when she attempted to evade them. Id. Though the pursuit only lasted approximately one minute, it took place in a heavily populated, residential area of northeast Jackson, Mississippi, that included at least one elementary school. Id. at 280 (¶ 21). Slater was traveling in excess of seventy to eighty miles per hour in a thirty-five-mile-per-hour speed zone. Id. The JPD officers in pursuit were traveling approximately fifty-five miles per hour. Id. Slater ultimately ran a red traffic light and crashed into Boyll, killing her. Id. at 276 (¶ 1). Boyll’s family filed suit against the City, claiming JPD had acted with reckless disregard in its pursuit of Slater. Id. at 276 (¶ 3).

¶ 14. The City was found to have acted with reckless disregard, and it was apportioned liability in the amount of 50%. Id. at 276 (¶ 4). On appeal, the supreme court affirmed the judgment. Id. at 281 (¶ 24).

We have summarized the facts the supreme court noted in its analysis to conclude that the City had acted with reckless disregard:

(1) The JPD officers could have blocked in Slater at the bank; instead, they parked beside her, allowing her to escape in her vehicle.
(2) The JPD officers could have easily written down Slater’s license plate number to find her instead of engaging in the high-speed chase.
(3) The JPD officers violated JPD policy on pursuits when they initiated the chase as Slater and her escape were less dangerous to the community than the risk posed by the pursuit.
(4) The JPD officers violated policy on pursuits when they chased Slater through heavily populated, residential areas traveling at least twenty miles per hour above the posted speed limit.

Id. at 280 (¶ 21).

¶ 15. Notably, the Mississippi Supreme Court recently addressed the issue of high-speed pursuits in City of Jackson v. Gray, 72 So.3d 491 (Miss.2011). In Gray, Alice Wilson was discovered by City of Raymond Police Officer Randy Razor weaving onto the shoulder of the road and causing other vehicles to drive off the road in Raymond, Mississippi. Id. at 492-93 (¶ 2). Officer Razor attempted to pull over Wilson, to no avail. Id. After witnessing Wilson appear to talk to herself in her vehicle, Officer Razor advised the dispatcher for the Raymond Police Department that Wilson was possibly mentally impaired. Id.

¶ 16. Thereafter, JPD Officer Stephen Coleman heard Officer Razor alert Jackson authorities to be on the lookout for his pursuit of Wilson, since they were approaching the Jackson city limits. Id. at 492-93 (¶ 3). JPD Sergeant Amy Barlow instructed JPD officers to monitor and assist the pursuit. Id. Accordingly, Officer Coleman responded by blocking traffic in the nearest intersection on Wilson’s path and following behind Officer Razor in his pursuit. Id. Sergeant Barlow had instructed JPD officers to monitor and assist the pursuit. Officer Coleman was joined by Officer Terrance Spann in the pursuit. Id. All officers had their emergency lights and sirens activated during the chase. Id.

¶ 17. Officer Razor continued his pursuit of Wilson into downtown Jackson, with Officers Coleman and Spann following him and a Metro One helicopter observing the chase from the air. Id. at 493-94 (¶ 4). The pursuit continued through several intersections and down a one-way street going the wrong way. Id. Officers Coleman and Spann did not follow Officer Razor onto the one-way street, and Officer Coleman immediately announced the termination of the pursuit after Wilson had turned onto the one-way street. Id. Officers Coleman and Spann deactivated their emergency lights and sirens and later lost sight of Officer Razor and Wilson because of an incline in the street. Id. at 493-94 (¶¶ 4-6).

¶ 18. Shortly thereafter, Wilson ran a red traffic light and crashed into a vehicle rightfully entering the intersection. Id. at 493-94 (¶ 7). The driver of the vehicle that Wilson hit was killed, and the family of the driver filed suit against the City, claiming that JPD was reckless in its pursuit of Wilson. Id. at 493-95 (¶¶ 7-8). The circuit court concluded that JPD had acted with reckless disregard, and the court assessed JPD 20% liability. Id. at 494-95 (¶ 9).

¶ 19. On appeal, the supreme court reviewed the circuit court’s findings and determined that the court had failed to address all of the applicable factors for analyzing high-speed chases for reckless disregard. Id. at 496-97 (¶ 17). Included in the supreme court’s analysis were the six factors discussed previously from the Ogbum case, as well as the following four factors: “[1] whether the officer proceeded with sirens and blue lights; [2] whether the officer had available alternatives which would lead to the apprehension of the suspect besides pursuit; [3] existence of a police policy which prohibits pursuit under the circumstances; and [4] rate of speed of the officer in comparison to the posted speed limit.” Id. (citing City of Ellisville v. Richardson, 913 So.2d 973, 978 (¶ 17) (Miss.2005)).

¶ 20. In its analysis, the supreme court reviewed each of the ten factors separately and concluded that JPD had not acted with reckless disregard and that the City should not have been held liable. Id. at 500-01 (¶ 34). The supreme court also noted that the circuit court discussed some but not all of the applicable ten factors and that the circuit court had failed to even discuss some factors showing the City did not act recklessly. Id. at 496-97 (¶ 17). We summarize the supreme court’s analysis of the factors referenced in its finding:

(1) Although in general the areas in which Wilson had been pursued by JPD officers is a mix of commercial and residential neighborhoods, most of the downtown Jackson area is commercial, with only a few neighborhoods.
(2) The pursuit was on a Saturday afternoon around 5:45 p.m., with little to no traffic in the area.
(3) Contrary to the circuit court’s determination, the JPD officers did not violate police policy on pursuits, and they timely advised their supervisor of the pursuit’s events as they were occurring.
(4) The JPD officers were only traveling at approximately forty-five miles per hour in a thirty-five-mile-per-hour speed zone.

Id. at 497-500 (¶¶ 20-31). Additionally, the supreme court took into account “that the JPD officers did not initiate the pursuit and that they consistently have claimed that their role in the pursuit was to assist with traffic, protect citizens, and protect Officer Razor if needed.” Id. at 500 (¶ 32).

¶ 21. As stated by the supreme court, “[i]t is appropriate for trial courts to consider all ten factors, and to look at the totality of the circumstances when analyzing whether someone acted in reckless disregard.” Id. at 497 (¶ 17) (quoting Richardson, 913 So.2d at 978 (¶ 17)). Having reviewed the record in the case at hand, we must conclude that the JPD officers acted with reckless disregard. We now analyze each of the ten factors individually.

A.Length of the Chase

¶ 22. The record reflects the chase at hand lasted approximately five minutes. The circuit court also noted that the pursuit spanned approximately four and one-half miles

B.Type of Neighborhood

¶ 23. The circuit court discussed in detail the neighborhoods through which the pursuit took place. While overall there was a mix of commercial and residential areas, Robertson and the pursuing officers sped by “residences, a church daycare and a Head Start program!,] ... a residential neighborhood [that] contained narrow streets which were in generally poor condition!,] • • • the main entrance to Tougaloo College,” as well as numerous medical-care facilities. Furthermore, “the suspect drove the stolen vehicle through the back yard of a private residence, around the residence, and out through the front yard of the private residence,” all while being followed by JPD officers.

C.Characteristics of the Streets

¶ 24. As noted above, the streets in some of the residential areas through which the pursuit occurred were very narrow and in poor condition. Additionally, the circuit court reiterated the JPD officers’ view of Robertson was blocked or hindered in numerous locations due to “rises in the streets and also railroad embankments.” The record supports the circuit court’s assertion that “[ujndisputed testimony revealed that the [JPD officers’ view] ... of the intersection, where the accident occurred ... was obstructed by a rise in the road.”

D.Presence of Vehicular or Pedestrian Traffic

¶ 25. The record shows the chase occurred at approximately 8:30 a.m. on a weekday during the school year, such that children were present in the school and daycare surrounding the area. The circuit court stated: “There was moderately heavy morning traffic in the area and all lanes of traffic contained vehicles.” Furthermore, almost all of the residential areas involved in the chase contained sidewalks.

E. Weather Conditions and Visibility

¶ 26. The circuit court did not address this issue in its order. However, trial testimony from Fowler reveals the weather on the day of the incident, December 15, 2004, was “real cold and cloudy,” and that visibility was good. Fowler further testified it was not raining.

F. The Seriousness of the Offense for Which the Police Are Pursuing the Suspect

¶27. JPD officers began their pursuit of Robertson after Fowler had left his SUV running and unlocked outside of a local store and Robertson stole the vehicle. There is no indication in the record that Robertson displayed or possessed any type of weapon at any point during the incident. As noted by the circuit court, Officer Strong “conceded that had the pursuit been abandoned, the juvenile suspect did not pose any threat or danger to the public.”

G.Whether the Officer Proceeded with Emergency Lights and Sirens

1128. The record reflects that the JPD officers had their emergency lights activated from the inception of the chase. The circuit court noted the JPD officers maintained their emergency lights and sirens before, during, and after the crash.

H.Whether the Officer Had Available Alternatives Which Would Lead to the Apprehension of the Suspect Besides Pursuit

¶ 29. In its opinion, the circuit court questioned whether the JPD officers knew the suspect’s identity and if apprehension would have been feasible at a later date. The circuit court opined that while identification of Robertson was not known at the time of the incident, identification of Robertson “would have been reasonably possible had the police elected not to pursue the stolen vehicle.” Specifically, the circuit court stated: “In this case, the juvenile suspect had been seen at a very close distance by the auto[-]theft victim. He was accurately described to the police officers by the theft victim. The juvenile suspect was also viewed in the vehicle stopped in an apartment parking lot by Officer Taitón.”

I.The Existence of Police Policy Prohibiting Pursuit Under the Circumstances

¶ 30. At trial, the JPD supervisor on duty the morning of the incident, Sergeant Maury Mullins, testified that JPD General Order 600-20 (the order) governs police pursuits, including the instant pursuit. The order advises JPD officers to “notify dispatch as soon as [a pursuit] begins to take place[,] • • • notify dispatch of the reason that the vehicle is being pursued, the speed, the direction of the travel and so forth.” The circuit court also noted the order mandates that if the pursuit becomes too dangerous, officers are supposed to report to the dispatcher so the supervisor on duty has the opportunity to terminate the pursuit. Accordingly, JPD officers have a duty to report any unsafe driving conduct of the. suspect. This was not done in the present case. Sergeant Mullins testified that had he been notified of Robertson’s reckless driving, including driving through a private yard and traveling at high speeds, he would have terminated the pursuit immediately.

¶ 31. In its analysis, the circuit court stated the following with regard to the JPD officers’ violation of the order:

[The order] specifies that to terminate a pursuit, officers are expected to turn off their emergency lights and sirens, and either stop their vehicles or turn around and drive away from the fleeing vehicle. None of these steps were ever taken by the pursuing officers. In fact, the JPD officers’ testimony revealed that the police had notice, well in advance of the crash, that the suspect vehicle was being operated in a manner evincing recklessness and indifference to human safety. The pursuing officers had already seen the suspect disobey traffic control devices and drive through a private yard in order to escape capture ... [Sergeant Mullins] ... testified that the pursuing JPD officers had a duty to call the supervisor if the situation was too dangerous. Had he known that the speed of the chase reached 60 mph, (which he was never advised), he would have called the chase off. Also, [Sergeant] Mullins stated that if he had been told (which he has no recollection of being told) that an officer had a civilian in his car during the chase, he would have told the officer to discontinue the chase.

J. The Rate of Speed of the Officer in Comparison to the Posted Speed Limit

¶ 82. The circuit court discussed in detail the speeds of the JPD officers involved in the pursuit. Witnesses to the chase testified that Robertson was traveling at least fifty-five miles per hour in a forty-mile-per-hour speed zone, where he passed a daycare, a church, and numerous residences. Lewis testified that Robertson was traveling anywhere from fifty to eighty miles per hour at the time of impact. Officer Taitón testified that Robertson never exceeded three car lengths in front of the JPD officers at any time during the chase. As such, the JPD officers were traveling at speeds anywhere from fifty-five miles per hour up to eighty miles per hour in forty-mile-per-hour speed zones.

¶ 33. Considering the totality of the circumstances in conjunction with the aforementioned analysis of the applicable ten factors, we cannot conclude the circuit court erred in its determination that the JPD officers had acted with reckless disregard. The pursuit spanned almost five miles and wound through heavily populated residential areas. At 8:30 a.m. on a school day, the officers were speeding through heavily trafficked neighborhoods, with cars, pedestrians, and school children located on and around the streets. The JPD officers’ actions were clearly in violation of the order, and apprehension of Robertson was reasonably possible without engaging in the pursuit. As such, we find the City’s arguments are without merit.

II. Proximate Cause and Apportionment

¶ 34. Proximate cause is comprised of cause-in-fact and foreseeability. Ogbum, 919 So.2d at 91 (¶ 21) (citation omitted). “ ‘Cause in fact’ means that the act or omission was a substantial factor in bringing about the injury, and without it the harm would not have occurred.” Id. (citation omitted). “Foreseeability means that a person of ordinary intelligence should have anticipated the dangers that his negligent act created for others.” Id. at 92 (¶ 21).

¶ 35. Here, Robertson clearly ran a red traffic light after being followed by Officer Taitón. The high-speed chase that occurred thereafter would not have continued but for the JPD officers’ pursuit of Robertson. We cannot say that Robertson would have been traveling at such high speeds and driving in such an erratic manner had JPD not been chasing him. The resulting crash, and therefore Thornton’s injuries, would not have taken place if Robertson were not attempting to escape from the JPD officers.

¶ 36. Additionally, JPD officers are trained to understand the dangers associated with police pursuits and fleeing criminals. The Mississippi Supreme Court has stated that “one who negligently drives an automobile reasonably should foresee that his or her negligence could be expected to cause certain kinds or categories of damages .... [including] traumatic injury, medical bills, lost wages, and pain and suffering.” Glover ex rel. Glover v. Jackson State Univ., 968 So.2d 1267, 1278 (¶ 38) (Miss.2007). The officers involved in the chase at hand should have anticipated the dangers associated with conducting a high-speed pursuit of a reckless and dangerous criminal in heavily populated areas of town. The injuries Thornton suffered are within the category of those the JPD officers should have reasonably anticipated to have occurred due to their negligence. Accordingly, we conclude the City was the a proximate cause of Thornton’s injuries resulting from the crash.

¶ 37. Having concluded that the circuit court was proper in finding the City to have proximately caused Thornton’s damages, we must address the circuit court’s apportionment of fault between the negligent parties.

¶ 38. In the June 23, 2010 order, the circuit court addressed the issues of apportionment between the City, Lewis, and Robertson. The circuit court reiterated its finding that the City had acted with reckless disregard in its pursuit of Robertson and that the City’s actions had proximately caused the accident and Thornton’s injuries. The City asserts the circuit court failed to allocate fault to Lewis as prescribed by law.

¶ 39. The circuit court devoted an entire section of its analysis to Lewis and ultimately determined that she was not at fault. While the circuit court did not specifically state that Lewis had 0% liability, there is no ambiguity in the circuit court’s order that Lewis was not to be apportioned any percentage of fault. The circuit court properly stated its finding that Lewis should not be apportioned any liability. We cannot find the court in error in the finding that Lewis “acted reasonably under the circumstances.”

¶ 40. The circuit court apportioned 20% of the damages to Robertson. In another section of its order, the circuit court analyzed Robertson’s actions and detailed his involvement in the crash. The circuit court then stated: “Robertson’s reckless actions and failure to yield to the pursuing officers, in addition to his failure to stop at the subject red traffic light, contributed to the cause of the subject accident.” Nonetheless, the circuit court went on to say “the City[’s] negligent pursuit in reckless disgregará [sic] was the primary proximate cause of the subject accident.... Robertson’s negligence was a proximate contributing cause.”

¶ 41. Having read the record and considered the findings of the trial judge, we find that there was not substantial evidence to support the trial court’s final assessment of fault at 80% to the City and 20% to Robertson, the thief and driver of the stolen vehicle.

¶ 42. First, the trial court initially found the City to be “the proximate cause of the accident.” The evidence presented at trial did not support this finding. Robertson was “the” proximate cause of the accident and Thornton’s damages. He stole the car, he ran from the police, he ran the red light, and he crashed into Lewis and Thornton. There can be no doubt that Thornton was the primary tort-feasor. The trial court was correct to find eventually that “Robertson’s negligence was a proximate contributing cause,” which supported the trial court’s order granting in part and denying in part the City’s motion to amend judgment. The trial court’s order assessed “twenty percent (20%) of liability to Robertson” based on the finding:

Isaiah Roberston
On the day of the subject accident, Isaiah Robertson, a juvenile who was driving a stolen car, led Jackson Police Department officers on a dangerous high-speed chase, which lasted approximately 4.5 miles. Throughout the entire chase, Robertson failed to yield to the pursuing police officers. During the chase, Robertson proceeded through red traffic signals, drove through residential property!!,] and drove recklessly and in excess of the speed limit. Robertson continued to flee the pursuing officers until his vehicle proceeded through a red traffic signal, at the intersection of Beasley Road and State Street, causing the subject collision. The Court, upon further consideration, hereby finds that Isaiah Robertson’s reckless actions and failure to yield to the pursuing officers, in addition to his failure to stop at the subject red traffic light, contributed to the cause of the subject accident. Accordingly, the Court finds and hereby incorporates its May 5, 2010 findings that the City of Jackson’s negligent pursuit in reckless disregard was the primary proximate cause of the subject accident. However, the Court finds that Isaiah Robertson’s negligence was a proximate contributing cause, and the City of Jackson’s Motion to Amend Judgment is well-taken, regarding Robertson. The Court amends its May 5, 2010 judgment and assesses twenty percent (20%) of liability to Robertson.

¶ 43. We agree that the City was a substantial contributing cause to the accident, and as a result, it should be assessed a percentage of damages through the allocation of fault. However, we cannot find that the City was “the proximate cause” of the accident with Robertson as “a contributing cause.” The trial court’s order clearly states that Robertson’s actions caused the accident. But for Robertson’s driving, the accident would not have occurred.

¶ 44. The evidence in this case does not support an apportionment of a greater percentage of fault to the City than to the criminal who actually made the decision to drive the vehicle through the red light and collide with other vehicles, which ultimately caused the injuries and damages to Thornton.

¶ 45. In a very similar case, the Mississippi Supreme Court in City of Jackson v. Law, 65 So.3d 821, 835 (¶¶ 57-58) (Miss.2011) held:

Stemming from the City’s substantial-contributing-cause argument, the City contends that the trial court erred by finding that Dearman [the criminal fleeing police officers] was only sixty percent at fault for the accident. In support of this contention, the City states that “[b]eeause of the actions of Dear-man and her disregard of law enforcement and her voluntary guilty plea to aggravated assault, the City of Jackson respectfully submits that she was the significant proximate cause of the collision.”
This Court finds this issue to be without merit. The trial judge’s finding actually reflects that Dearman was the significant cause of the accident, because he found her to be sixty percent at fault. Moreover, an allocation of forty percent negligence to May is supported by substantial evidence in the record. Again, [the police officer] recklessly disregarded the public’s safety by the manner in which he conducted his pursuit of Dear-man.

¶ 46. The supreme court recognized that there was substantial evidence to assess 60% of fault to the criminal whose actions were the direct proximate cause of the accident. The record here does not support an apportionment of 80% fault to the City and 20% to the criminal fleeing the police. We reverse the circuit court’s judgment on this issue, and this case is remand for a new trial on the apportionment of damages.

III. Damages

¶ 47. Finally, the City asserts the circuit court erred in its finding of damages, and the amount of damages awarded is against the overwhelming weight of the evidence. The Mississippi Supreme Court has stated that a “plaintiff will be allowed to recover for all injuries and damages reasonably expected to result from automobile accidents.” Glover, 968 So.2d at 1279 (¶ 38). At trial, Thornton took the stand and spoke about his life before the accident, the accident, his injuries, and his life after the accident. It is clear from Thornton’s testimony that his life changed dramatically after the crash. Thornton’s wife also testified about Thornton’s physical and emotional difficulties following the crash. It is undeniable that Thornton experienced, and continues to experience, significant and debilitating pain and suffering both physically and emotionally.

¶ 48. Thornton’s medical bills were also submitted to the circuit court for review, as well as his lost wages and evidence of his inability to continue working in his prior jobs after the crash. Thornton’s economic losses alone totaled over $76,000. The supreme court has stated some of the factors to be considered in an analysis of damages include “the degree of physical injury, mental and physical pain[;] present and future, temporary and permanent disability^] medical expenses[;] loss of wages and wage-earning capacity[;] sex, age, and plaintiffs state of health; the loss of use of limbs; [and] disfigurement or mutilation of the body.” Woods v. Nichols, 416 So.2d 659, 671 (Miss.1982) (internal citations omitted).

¶ 49. Having reviewed the record thoroughly, we cannot conclude the circuit court’s calculation of damages was erroneous. We have held:

A party will not be able to escape liability because of a lack of a perfect measure for damages. Rather, sufficient proof is that which is a reasonable basis for computation of damages and the best evidence obtainable under the circumstances of the case that will enable the trier of fact to arrive at a fair approximate estimate of the loss.

Progressive Cas. Ins. Co. v. All Care, Inc., 914 So.2d 214, 221 (¶ 18) (Miss.Ct.App. 2005) (internal citations omitted). We find the circuit court properly approximated Thornton’s losses. As such, this issue is without merit.

¶ 50. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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

ISHEE, J.,

dissenting in part:

¶ 51. While I respect the majority’s opinion, I must dissent as to the circuit court’s assessment of fault to the City of Jackson (the City). As previously stated by the majority, the circuit court apportioned 20% of the damages to Isaiah Robertson and 80% of the damages to the City. The court reasoned, “the City[’s] negligent pursuit in reckless disgregard [sic] was the primary proximate cause of the subject accident.... Robertson’s negligence was a proximate contributing cause.” I agree.

¶ 52. Had the JPD officers called off the pursuit after Robertson had displayed an obvious refusal to yield and reckless, dangerous driving, the likelihood of the crash ever occurring diminishes greatly. Although it was the stolen SUV driven by Robertson that actually struck the vehicles driven by Kewania Lewis and Basil Thornton, Robertson’s negligent behavior was largely exacerbated by the City’s lack of consideration for public safety in its pursuit. Indeed, when Officer Kenneth Tai-tón first observed Robertson in the stolen vehicle, he was parked in an apartment parking lot. Upon spotting Officer Taitón, Robertson left the parking lot and proceeded to drive down the road in a normal fashion. It was not until Robertson realized Officer Taitón intended to follow him and pull him over that he began driving erratically.

¶ 53. But for the JPD officers chasing Robertson, it is unlikely Robertson would have maneuvered the vehicle in such reckless disregard to have ever caused the accident. Again, once the JPD officers recognized Robertson had no intention of stopping and had no regard for the safety of the public, the JPD officers had a duty to terminate the chase. Had the officers done so, this case would likely not be before us today. As such, I cannot find error in the circuit court’s allocation of 80% fault to the City and respectfully disagree with the majority on this issue.

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

      . In the Final Judgment, the trial court found the City to be 100% at fault. The Final Judgment did not address the faulphegligence of Robertson.

      . The City timely filed a motion to amend the judgment. The motion asked the trial court to amend the judgment "to apportion liability to Co-Defendant Isaiah Robertson and Kewa-nia Lewis." Specifically, the motion cited Mississippi Code Annotated section 85-5-7 (Rev.2011) and argued that "[i]n actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault.” Thornton's complaint named the City, several officers, and Robertson as defendants. The complaint alleged that Robertson acted with "negligence, negligence per se and gross negligence.” The evidence presented at trial clearly indicated Robertson was negligent, and his negligence proximately caused damage to Thornton.