author: BARNES, J., CARLTON, J.,

text:
    William ALIAS, Jr., Appellant v. The CITY OF OXFORD, Mississippi, Appellee.
    No. 2009-CA-00301-COA.
    Court of Appeals of Mississippi.
    Sept. 14, 2010.
    Rehearing Denied May 24, 2011.
    Certiorari Dismissed Sept. 29, 2011.
    Thomas Henry Freeland IV, Joyce Marie Freeland, attorneys for appellant.
    Pope Shannon Mallette, Paul Bowie Watkins Jr., attorneys for appellee.
   BARNES, J.,

for the Court:

¶ 1. William Alias, Jr. appeals the judgment of the Circuit Court of Lafayette County that upheld the City of Oxford’s grant of a zoning variance to Richard Elam for construction of a privacy fence which bordered his and Alias’s residential property. After a careful review of the record, we find the circuit court lacked jurisdiction to hear the appeal from the City of Oxford’s Planning Commission; thus, the case is not properly before this Court. Accordingly, we vacate the circuit court’s judgment and dismiss the appeal for lack of jurisdiction.

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

¶ 2. Alias and Elam are neighbors in the Grand Oaks subdivision in Oxford, Mississippi. This case arose as a dispute over a privacy fence that Elam wanted to erect along his driveway adjacent to Alias’s property. Elam’s lot, number 213, is a peculiar flag-shaped lot, with his driveway forming the “pole” of the flag and running between lots 212 and 214. Alias owns Lot 214. Elam’s driveway abuts Alias’s garage and utility area, and his house is set behind lot 212. In February 2007, Elam originally presented Alias with building plans for an eight-foot-tall retaining wall between the two properties. After a survey of the property and in response to concerns by Alias, Elam redesigned the project and opted to build a privacy fence instead of the retaining wall. Elam claims Alias did not object to the fence until Elam had already started building it. The record indicates Alias had, however, conferred with his attorney, and in February, Alias obtained an opinion letter from his attorney advising him on his various concerns about Elam’s retaining wall.

¶ 8. In April 2007, Elam obtained a building permit from the City of Oxford (“City”) for the project; the City’s Director of Planning and Development, Tim Akers (“Director”), originally interpreted the City’s Land Development Code (“Code”) to allow Elam’s eight-foot-tall privacy fence in a location identified as the “side yard.” Soon after building had commenced and fence footings had been installed, however, the Director issued Elam a stop work order. After objection from Alias’s attorney, the Director decided the property where Elam planned to build the fence was the “front yard,” and not the “side yard.” The Code does not allow a solid fence in the “front yard” to exceed thirty inches. Therefore, Elam applied for a five-and-one-half-foot height variance to the Code for the fence from the City of Oxford’s Planning Commission (“Commission”), as required, to complete the project.

¶ 4. The Director recommended the variance be granted. On May 14, 2007, at the Commission’s regular meeting, the Commission granted Elam’s variance, with the express condition that the fence would not extend beyond the front elevation of either structure (of lots 212 and 214) located on either side of Elam’s driveway. The Commission approved the minutes at its June 11, 2007, meeting.

¶ 5. On June 14, 2007, Alias filed a notice of appeal and a bill of exceptions with the Circuit Court of Lafayette County. The circuit court affirmed the Commission’s decision, entering a judgment in favor of the City on March 11, 2008. Alias filed a notice of appeal of that judgment on April 4, 2008.

¶ 6. On March 17, 2009, this Court rendered its decision in Rankin Group v. City of Richland, 8 So.3d 259, 261 (¶ 12) (Miss. Ct. App.2009), holding that the ten-day period in Mississippi Code Annotated section 11-51-75 (Rev.2002) for filing a notice of appeal from the decision of municipal authorities runs from the date of the meeting in which the decision was made and not from the date the minutes of the meeting were approved. The City raises for the first time before this Court the untimeliness of Alias’s appeal.

ANALYSIS

¶ 7. Although Alias raises several issues regarding the propriety of the variance granted to Elam, we only find it necessary to address whether the case is properly before this Court. Jurisdiction is a question of law; thus, this Court’s review is de novo. Busby v. Anderson, 978 So.2d 637, 639 (¶ 6) (Miss.2008) (citing RAS Family Partners, LP v. Onnam Biloxi, LLC, 968 So.2d 926, 928 (¶ 8) (Miss.2007)).

¶ 8. In its brief before this Court, the City raises for the first time the issue of whether the circuit court had jurisdiction to hear the appeal from the Commission. Citing Ranlcin Group, the City argues that Alias’s appeal to the circuit court was untimely because Alias did not file the notice of appeal within ten days of the City’s decision to grant the variance, as required by section 11-51-75, which provides in part:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities ... may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities.

Therefore, the City argues, because Alias’s notice of appeal to the circuit court was untimely filed, this Court must dismiss the appeal for lack of jurisdiction.

¶ 9. Alias counters that the City has waived this issue because it was raised for the first time before this Court, instead of before the circuit court. Alias points out that even the circuit court, in its order, stated that Alias’s “appeal was timely perfected,” and the City did not file a cross-appeal from this ruling. Citing Duvall v. Duvall, 224 Miss. 546, 551-52, 80 So.2d 752, 753-54 (1955), Alias states in his brief that: “While subject matter jurisdiction cannot be waived, other types of jurisdiction can be waived.” He contends that the timeliness of an appeal can be waived.

¶ 10. The timeliness of an appeal is jurisdictional, and this Court must always acknowledge its own lack of jurisdiction. Michael v. Michael, 650 So.2d 469, 471 (Miss.1995) (citing Common Cause of Miss. v. Smith, 548 So.2d 412, 414 (Miss.1989)). See also David G. Knibb, Federal Court of Appeals Manual, § 7:1 (5th ed. 2007) (“Filing your appeal on time is critical because a timely notice of appeal is jurisdictional, and timeliness cannot be waived or dispensed with by the parties or by court order.”). It is well established that if the appealing party has no right to appeal, the appellate court should dismiss the appeal on its own motion. 5 Am. Jur.2d Appellate Review § 804 (2007). See also Smith v. Smith, 221 Miss. 180, 183, 72 So.2d 230, 231 (1954) (If the appeal not authorized by statute, the reviewing court may on its own motion question whether the order of lower court is appeal-able.); Baham v. Sullivan, 924 So.2d 580, 582 (¶ 10) (Miss.Ct.App.2005) (appellate court always has the responsibility to determine its jurisdiction). Moreover, the Mississippi Supreme Court has specifically held that: “Where an appeal is not perfected within the statutory time constraints [of section 11-51-75] no jurisdiction is conferred on the appellate court; and the untimely action should be dismissed.” Bowen v. DeSoto County Bd. of Supervisors, 852 So.2d 21, 23 (¶ 3) (Miss.2003) (quoting Newell v. Jones County, 731 So.2d 580, 582 (¶ 10) (Miss.1999)).

¶ 11. In Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), the United States Supreme Court made clear that “the timely filing of a notice of appeal in a civil case is a jurisdictional requirement” and that the Supreme Court “has no authority to create equitable exceptions to jurisdictional requirements” which Congress has established. Bowles dealt with the belated appeal of a denial of a state prisoner’s petition for habeas corpus-a civil action-before the district court. Id. at 206-08, 127 S.Ct. 2360. The prisoner failed to file a timely notice of appeal, but moved to reopen the appeal under a federal statute. The district court granted the motion but gave the prisoner seventeen days to file his notice of appeal, which was beyond the fourteen days mandated by the pertinent statute. The United States Court of Appeals for the Sixth Circuit held that the prisoner’s appeal was untimely filed; thus, the court lacked jurisdiction and dismissed the case. Id. at 207, 127 S.Ct. 2360. The Supreme Court agreed, rigidly applying the doctrine that appealing within the time constraints of a statute in a civil case is “mandatory and jurisdictional,” and thus cannot be waived. Id. at 209, 214-15, 127 S.Ct. 2360.

¶ 12. The Mississippi Supreme Court has held, time and again, that the ten-day time limit of section 11-51-75 is “both mandatory and jurisdictional.” See, e.g., Ball v. Mayor and Board of Aldermen of City of Natchez, 983 So.2d 295, 299 (¶ 8) (Miss.2008) (citing Bowen, 852 So.2d at 23 (¶ 3); City of Madison v. Shanks, 793 So.2d 576, 581 (¶ 19) (Miss.2000); Newell, 731 So.2d at 582 (¶ 10)). Alias claims that the question of timeliness is not a question of subject-matter jurisdiction and, therefore, can be waived. He insists that the circuit court had the power to hear “cases of the general nature raised by the appeal below” and that the subject matter of this case was within the circuit court’s “exclusive jurisdiction.” However, Alias’s argument misses the point that when a circuit court sits as an appellate court, and not as a court of general jurisdiction, the jurisdiction provided by section 11-51-75 is akin to subject-matter jurisdiction and cannot be waived. In this case, the circuit court’s jurisdiction was provided solely by section 11-51-75 and was not within the circuit court’s general jurisdiction. See S. Cent. Turf, Inc. v. City of Jackson, 526 So.2d 558, 561 (Miss.1988) (stating that “exclusive jurisdiction” was in the circuit court for an appeal from a decision of the municipality under section 11-51-75). The time limit is, thus, “mandatory and jurisdictional.”

¶ 13. Alias cites to two cases in support of his proposition that the timeliness of an appeal to the circuit court under section 11-51-75 can be waived: City of Jackson v. Calcote, 910 So.2d 1103 (Miss.Ct.App.2005) and Garrard v. City of Ocean Springs, 672 So.2d 736 (Miss.1996). Calcote involved a complaint against the City of Jackson alleging police officers had used excessive force when responding to a domestic-disturbance call. Calcote, 910 So.2d at 1106 (¶ 1). The Hinds County Circuit Court ruled against the City, finding the officers’ actions were within the scope of their employment but not reasonable or in good faith. Id. at 1108 (¶ 10). The City of Jackson’s appeal was heard by this Court, where Calcóte argued for the first time in response to the City’s brief that the appeal should be dismissed because the City had failed to appeal within thirty days of the entry of the judgment as provided in Mississippi Rule of Appellate Procedure 4(a). Id. at (¶¶ 10, 12, 14). The circuit court rendered a verdict on April 16, 2003, and the City filed its notice of appeal on May 30, 2003. Id. at (¶ 14). This Court stated that it was insufficient for Calcóte to challenge the timeliness of an appeal after the appeal was “otherwise proper and before this Court.” Id. at 1109 (¶ 17).

¶ 14. Calcóte, however, is distinguishable from this case. In Calcote, this Court noted that the record suggested that the City of Jackson had successfully moved the circuit court for an extension of time to file its appeal under Mississippi Rule of Appellate Procedure 4(g). Id. at 1108 (¶ 14). While the order permitting the extension of time was not a part of the record, Calcóte was actually challenging the circuit court’s grant of the out-of-time appeal. Id. at (¶ 13). We stated that he should have challenged the extension before the circuit court in order for it to reconsider the decision. The extension of time had been granted by the trial court, and the case was, thus, “otherwise proper and before this Court.” Id. at 1109 (¶¶ 16-17). In the instant case, we note section 11-51-75 makes no provision for an out-of-time appeal, and we cannot find that the appeal is “otherwise proper.”

¶ 15. In Garrard, 672 So.2d at 737-38, Joseph B. Garrard appealed from a circuit court order that stated it had no jurisdiction to review a decision by the City of Ocean Springs made at a meeting on February 20, 1990. The supreme court noted the minutes of this meeting were approved at a city council meeting on March 6, 1990. Id. at 737. On October 22, 1991, Garrard and others filed a bill of exceptions in the circuit court, appealing the decision made by the City. Id. In April 1992, the circuit court entered an order stating the City’s decision was a valid discretionary decision within its authority and is not properly the subject of the appeal; therefore, the appeal was dismissed. Id. at 738. In reversing and remanding the circuit court’s order of dismissal, the supreme court stated that the circuit court’s order of dismissal was unclear and possibly based on the mistaken belief that the court was without jurisdiction to hear the case. Id.

¶ 16. Alias argues that timeliness under section 11-51-75 “can be waived [and] is strongly suggested by the absence of this issue” in Garrard. This contention of error is without merit. It is a long-standing legal principle that a decision is not precedent for a legal point if that point is not considered by the reviewing court. See Craig v. Brown & Williamson Tobacco Corp., 190 Miss. 360, 360, 200 So. 446, 447 (1941). The supreme court never mentioned the issue of timeliness; thus, this case cannot stand for the proposition that timeliness of an appeal under section 11-51-75 can be waived.

¶ 17. Next, Alias cites to Gale v. Thomas, 759 So.2d 1150, 1157-59 (¶¶ 31-40) (Miss.1999) for the proposition that the failure of the municipal defendant to file a cross-appeal bars it from raising a jurisdictional issue on appeal. In that case, the driver, Nancy Gale, sued the municipality for injuries sustained in an automobile accident with a police officer. Id. at 1151 (¶ 2). After the trial court granted summary judgment for the municipality and the police officer finding them immune, the driver appealed, and the municipality and police officer raised for the first time that Gale was not in compliance with the notice requirements of the Mississippi Tort Claims Act. Id. at 1152 (¶¶ 4, 6). Regarding the MTCA’s notice requirements and jurisdiction, the supreme court stated:

This Court has not addressed the issue of whether the question of compliance with the notice provisions of the MTCA may be raised for the first time on appeal. Despite this Court’s statements that compliance with the notice requirements is a jurisdictional issue ... it is the conclusion of this Court that the City ... [is] precluded from raising this issue for the first time on appeal. As this Court has stated, time and again, an issue not raised before the lower court is deemed waived and is procedurally barred.

Id. at 1159 (¶ 40). Recently, however, in Stuart v. University of Mississippi Medical Center, 21 So.3d 544, 550 (¶ 11) (Miss. 2009), the supreme court specifically held that the “notice requirements in the MTCA are not jurisdictional” and, therefore, are “waivable,” overruling a line of cases which held that the MTCA’s notice provisions are jurisdictional requirements. Alias’s citation of a MTCA case for the proposition that lack of jurisdiction is waivable is, thus, without merit.

¶ 18. Lastly, Alias argues that regardless of the waiver issue, his appeal was timely, as Rankin Group was “wrongly decided” by this Court. We disagree. Alias claims he had ten days from the date the minutes were approved or signed, on June 11, to file his appeal, rather than ten days from the adjournment of the meeting in which the decision was made. However, Rankin Group clearly held that in a municipality’s decision to demolish a structure on a citizen’s property, the ten-day time period for an appeal under section 11 — 51— 75 began to run when the meeting from which the decision originated was adjourned, not from when the minutes were approved or signed. Rankin Group, 8 So.3d at 261 (¶ 12). In looking at the plain meaning of the statute, this Court stated that section 11-51-75 clearly states that the appeal of a board of supervisors’ or municipality’s decision may be taken “within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision.” Id. at 260-61 (¶ 8). Importantly, this Court looked to Mississippi Code Annotated section 21-15-33 (Rev.2007) to determine when municipal minutes become effective and valid. Id. at 261 (¶ 10). This statute states that the municipal minutes must be adopted and approved by the next regular meeting or within thirty days of the meeting, whichever is first; and “[u]pon such approval, said minutes shall have the legal effect of being valid from and after the date of the meeting.” Miss.Code Ann. § 21-15-33 (emphasis added). In Rankin Group, this Court rejected the contention that “the meeting” in section 21-15-33 means the meeting when the minutes were approved. Rankin Group, 8 So.3d at 261 (¶ 10). We explained that if this were so, and if the municipality at issue did not hold a regularly scheduled meeting within thirty days, but instead merely approved the minutes within thirty days without a meeting, the minutes would have no legal effect. Id. at (¶ 11). Thus, Rankin Group concluded that the ten-day period for an appeal began when the City adjourned the meeting after making the decision on the property. Id. at (¶ 12). We reject Alias’s contention that the rule advanced by Rankin Group “makes no sense.”

¶ 19. We further reject Alias’s contention that Rankin Group disregards longstanding and controlling Mississippi Supreme Court precedent. Alias cites to three cases that he claims “consistently viewed finality of a [municipal] decision as dating from when the minutes were approved” for purposes of appealing under section 11-51-75: South Central Turf, Inc., 526 So.2d at 562-63; City of Oxford v. Inman, 405 So.2d 111, 114 (Miss.1981); and Gatlin v. Cook, 380 So.2d 236, 237-38 (Miss.1980).

¶ 20. In Rankin Group, this Court expressly rejected that South Central Turf stood for the proposition that a matter is not finally decided and appealable until the minutes of the meeting are signed. In South Central Turf, “the supreme court was not required to decide whether the time for appeal began at the adjournment of the meeting or upon the signing of the minutes from that meeting, because the appeal was filed more than ten days after the minutes were signed.” Rankin Group, Inc., 8 So.3d at 261 (¶ 9). We find Inman is not on point as the decision concerns the effective date of an ordinance under Mississippi Code Annotated section 21-13-11 (Rev.2007), and not the appealability of a municipal decision memorialized by minutes under section 21-15-33. See Inman, 405 So.2d at 114. Finally, Gatlin concerns whether the municipality had the authority to remand a petition to rezone property to the planning board for a rehearing after the city council had adopted an ordinance to rezone the property and after an appeal was perfected in the circuit court. Gatlin, 380 So.2d at 237. Gatlin does not address the issue of whether the minutes must be adopted before a municipal decision becomes final; in fact, the term “minutes” does not appear in the opinion. The remaining cases cited by Alias concern whether some other event affects the finality of the municipality’s decision, such as the execution of a contract (J.H. Parker Construction Co. v. Board of Aldermen of the City of Natchez, 721 So.2d 671, 673-74 (¶¶ 9-11) (Miss.1998)), a mayoral veto (City of Madison v. Shanks, 793 So.2d 576, 580-81 (¶¶ 16-24) (Miss.2000)), or a board vote (Ball, 983 So.2d at 298-99 (¶ 7)). Alias has suggested no additional event, other than execution of the minutes, that could have delayed the appealability of the City’s decision in this case. Thus, we find these cases distinguishable.

¶ 21. The dissent is of the opinion that Rankin Group’s assessment of section 21-15-33 that municipal minutes become final and have “legal effect” at the actual meeting the decision occurred conflicts with City of Biloxi v. Cawley, 278 So.2d 389 (Miss.1973). We disagree. Cawley dealt with whether an annexation ordinance had been properly adopted when the minutes of the city commission were signed by the mayor and clerk within ten days after the adjourned regular meeting at which the ordinance was adopted. The supreme court found it had. Id. at 390. At issue was whether the minutes were timely signed and when they became effective. The statute at issue in Cawley, the former version of 21-15-33, Mississippi Code of 1942 Annotated section 3374-72 (Supp.1971), stated:

The minutes of every municipality must be signed by the mayor or a majority of all the members of the governing body of the municipality within ten (10) days of the meeting thereof, and upon such signing said minutes shall have the legal effect of being valid from and after the date of the meeting. All minutes signed after ten (10) days from the date of the meeting shall be valid from and after the date of such signing.

Cawley, 278 So.2d at 890-91 (emphasis added). Because the city commission had, “[b]y appropriate recessing orders” continued in regular session with meetings over a two-week period once they convened, having meetings on five different days, the questions in Cawley were when the ten days began to run — from the date of the regular meetings’ convening or adjournment — and from which “meeting” did the minutes become effective. Id. at 391-92. The supreme court distinguished between adjourned and recessed regular meetings, and special meetings, and held that the above meetings were all adjourned regular meetings from the first convened meeting. Id. at 391. The supreme court concluded that the minutes were effective “from and after the date of the meeting” which meant the date of final adjournment. Id. at 392. This holding in no way conflicts with Rankin Group.

¶ 22. Here, we did not have one regular meeting that was recessed over a period of weeks, but the Commission’s regular meetings held on a monthly basis. There is no issue as to whether these meetings were adjourned or special meetings: both meetings at issue were regular meetings. At one meeting, the decision to approve the variance was made; and at the next meeting, the minutes from the previous meeting were approved. The meeting where the decision was made was the “final adjournment” of that particular meeting, and it was when the decision became final. We also note that Cawley does not state, as the dissent claims, that “actions are not final until the minutes are signed,” but that this alternative occurred only if the minutes were signed more than ten days after final adjournment, according to section 3374-72’s savings clause. See Cawley, 278 So.2d at 392.

¶23. This last point evidences that Cawley actually supports, rather than undermines, our holding in Rankin Group. The Mississippi Supreme Court explained that if the minutes were not signed within the ten days, “they were not void, but, under the ‘saving clause’ of the statute, would be valid from the time of signing. The signing ‘within ten (10) days of the meeting’ is a condition precedent for the minutes to date back and become valid from and after the date of the meeting.’ Cawley, 278 So.2d at 392 (emphasis added). As we held in Rankin Group, “meeting” is the original meeting at which the decision was taken, not the meeting at which the minutes were signed. If signed within the now thirty days set by statute, the minutes “date back” and are valid as of the date of the original meeting. See id.

¶ 24. We reaffirm our decision in Rankin Group and conclude that because Alias’s notice of appeal was not filed within ten days of the adjournment of the meeting on May 14, 2007, when the variance was granted, the circuit court lacked appellate jurisdiction to hear the appeal under section 11-51-75. Accordingly, this Court lacks jurisdiction as well and must dismiss the appeal.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IS VACATED AND THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE AND ROBERTS, JJ„ CONCUR. CARLTON, J., DISSENTS WITH A SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶ 26. I respectfully dissent. I submit that this Court’s reliance upon Rankin Group, Inc. v. City of Richland, 8 So.3d 259 (Miss.Ct.App.2009) is misplaced, as the Rankin Group opinion conflicts with Mississippi Supreme Court precedent.

¶27. In City of Biloxi v. Cawley, 278 So.2d 389, 392 (Miss.1973), the supreme court explained that “for the minutes ... to become effective ‘from and after the date of the meeting’ ” means “the date of final adjournment when the actions taken become final.” The court noted that actions are not final until the minutes are signed, expressing that when a meeting is only recessed and not adjourned, “there remains a certain fluidity or absence of finality to the actions taken which persists until final adjournment and approval of the minutes by signing as required by the statute.” Id. The court also interpreted the statute as stating that “the actions taken at the meeting generally become effective, not from the date of convening, but from the date of adjournment, or if signed more than [thirty] days after final adjournment, from the date of signing.” Id. (emphasis added). Until final adjournment, a decision by a board or council could be reconsidered and/or changed. To ensure clarity regarding the interpretation and application of Cawley to the present case, I cite the following pertinent passage in full:

We think that this is all that the statute required in order for the minutes of the regular meeting to become effective “from and after the date of the meeting” which means of course, the date of final adjournment when the actions taken become final.
Under such circumstances, so long as a regular meeting is recessed and continued from time to time, and not adjourned finally, there remains a certain fluidity or absence of finality to the actions taken which persists until final adjournment and approval of the minutes by signing as required by the statute. When signed within ten days, the actions taken at the meeting generally become effective, not from the date of convening, but from the date of adjournment, or if signed more than ten days after final adjournment, from the date of signing.
Appellees contend that this case is controlled by Stephens v. Mayor & Board of Aldermen of City of Natchez, 261 So.2d 486, 490 (Miss.1972). We do not think so.
We said in Stephens:
Under section 3374-72, all minutes signed after ten days from the date of the meeting shall be valid from and after the date of such signing. Therefore, if any of the minutes of the September 13, September 23, September 27, or September 30, meetings (the latter recessing until October 4, 1971) were signed after October 18, the minutes containing the recessing orders did not become valid until such time as they were signed because more than ten days had elapsed. It would follow that there could not have been a valid meeting on October 4, 1971. (261 So.2d at 490).

Id.

¶ 28. So, a decision is not really a decision until final adjournment or approval of the minutes within thirty days of the meeting. See Miss.Code Ann. § 21-15-33 (Rev. 2007). Therefore, I must respectfully dissent from the majority’s opinion and request that Rankin Group be revisited.

      . Based on the unique location of Elam's home, the entire driveway is in his "front yard.”

      . In its appellate brief before the circuit court, the City argued that Alias did not timely perfect his appeal' because Alias’s bill of exceptions lacked an official signature as required by section 11-51-75 and contained inaccurate information. Alias filed a second amended bill of exceptions in September 2007, which rectified these defects.

      . Alias argues that Duvall stands for the proposition that other types of jurisdiction, such as timeliness, can be waived. However, Duvall did not deal with the timeliness of an appeal, but whether the chancery court had subject-matter jurisdiction to hear a suit for property division when the court denied the separate-maintenance action. Thus, the general statement of the law that Alias cites from Duvall, while correct, is not controlling here.

      . Rule 4(g) allows the trial court to extend the time for filing a notice- of appeal upon a motion not later than thirty days after the expiration of the time.

      . Failure to file a cross-appeal is of no import if there is no jurisdiction, because this Court must consider the lack of jurisdiction on its own motion. See, e.g., M.W.F. v. D.D.F., 926 So.2d 897, 898 (¶ 2) (Miss.2006) (on writ of certiorari, the supreme court found this Court lacked jurisdiction to consider appeal, vacated this Court's judgment and dismissed appeal where question of jurisdiction had never been raised before this Court).

      . By 1991 revision, the time for signing minutes was changed to thirty days, and the final sentence, referred to as a "savings clause” in Cawley, was deleted. See Miss. Gen. Laws Ch. 552, Section 2 (1991); Cawley, 278 So.2d at 392.

      . The Mississippi Supreme Court has mandated that any final action by municipal authorities or a board of supervisors is appealable under Mississippi Code Annotated section 11-51-75 (Rev.2002). See S. Cent. Turf, Inc. v. City of Jackson, 526 So.2d 558, 561 (Miss. 1988).

      . Cawley was decided in 1973, before the revision of Mississippi Code Annotated section 21-15-33. The revision did not affect the definition of meeting; instead, it extended the required time for signing the minutes from ten days to thirty days.


source: Caselaw Access Project

author: GRIFFIS, J,

license: Public Domain

text:
    Derrick TURNER, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00330-COA.
    Court of Appeals of Mississippi.
    Nov. 9, 2010.
    Rehearing Denied May 31, 2011.
    Certiorari Denied Sept. 29, 2011.

      Sanford E. Knott, Jackson, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J,

for the Court:

¶ 1. Derrick Turner was convicted for capital murder under Mississippi Code Annotated section 97-3-19 (Rev.2006). The Oktibbeha County Circuit Court sentenced Turner to life without the possibility of parole in the custody of the Mississippi Department of Corrections. On appeal, Turner claims that: (1) there is insufficient evidence to support his conviction; (2) the circuit court improperly denied his jury instruction on the impeachment of witnesses; (8) the circuit court improperly denied his jury instruction requiring acquittal where an accomplice’s testimony was impeached, unreasonable, or self-contradictory; and (4) the verdict is against the overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 2. On August 20, 2001, the Starkville Fire Department responded to a house fire at 226 Reed Road in Starkville, Mississippi. During their search of the home, they discovered Juanita Miller, who had been severely beaten. Six separate fires had been deliberately set in various rooms of the house. The house was ransacked and the belongings of Juanita and her husband, Lee Miller, had been pulled out of drawers and closets. Approximately $600 was stolen.

¶ 3. Lee had left the house at approximately 8:45 a.m. to visit two car washes that he owned. When he returned home at approximately 9:45 a.m., he found emergency personnel attempting to resuscitate Juanita. Juanita later died from her wounds, which had caused swelling of and bleeding from her brain.

¶ 4. The Starkville Police Department’s investigation led to a suspect named Devail Hudson. A search dog was used to track Hudson’s scent from a nearby trailer park to the back door of the Millers’ home and then back to the trailer of Hudson’s girlfriend.

¶ 5. Lieutenant William Lott testified that the investigation stalled until January 6, 2002, when Bentore Riley contacted the police department. Riley was concerned for his mother’s safety because he had been threatened by the people who had broken into the Millers’ home. Riley gave a statement to the police detailing what he knew about the events of August 20, 2001. Riley admitted that he had been the lookout, and he was arrested for his involvement in the crime.

¶ 6. At trial, Riley testified that he saw Turner, Hudson, Demarcus Evans, James Pastor, Willie Prater, Josh Wood, and Destiny Moore standing at the corner of Northside Drive and Westside Drive — an intersection near Lander’s Trailer Park and the Millers’ home — at approximately 9:00 a.m. on August 20. Riley and Moore began to argue because Moore was wearing Riley’s tennis shoes. Hudson told Moore to return the shoes to Riley. Moore went across the street to his house to get another pair of shoes.

¶ 7. Riley heard Hudson say to the group, “Let’s go.” Prater asked, ‘What are you going to do?” Hudson responded, “We fixing to go over there to that woman’s house and see what she’s got in there.” Prater asked, “What we going to do if she finds us in there?” Hudson said, “We’re going to kill her.” Riley testified that the group forced him to act as their lookout.

¶ 8. Riley watched the group enter the Millers’ back door. Riley saw Turner run out of the house and fall onto the grass. The rest of the group ran from the house, and Hudson and Prater were the last to leave. Riley stated that the group returned to the trailer park. Riley testified that he attempted to call the police, but he was unsuccessful.

¶ 9. Denise Stephens testified that she was delivering Meals-on-Wheels on the morning of August 20, 2001. She said she usually turns her car around at the entrance to Lander’s Trailer Park located at the corner of Westside Drive and North-side Drive. That morning, she was unable to turn around because a group of four or five men was standing at the entrance. Of those in the group, she recognized only Hudson and Riley.

¶ 10. Lt. Lott testified that he took a statement from Turner on January 14, 2002. Turner said that he went to work at 7:00 a.m. on August 20, 2001, and worked until 4:80 p.m. Turner told Lt. Lott that he worked for Hodges Construction installing pipe on the Highway 25 bypass. Lt. Lott contacted Hodges Construction and was informed that Turner was not employed there on August 20, 2001.

¶ 11. Turner was called back to the police station to give a second statement. He again said that he was at work with Hodges Construction at the time of the crime. When Lt. Lott told Turner that Turner did not work for Hodges Construction on August 20, 2001, Turner stated that he must have been at home asleep that day. Dina Addy, a business manager at Hodges Construction, testified that Turner’s first day of employment was September 11, 2001.

¶ 12. Turner’s mother, Mary Turner, testified that Turner drove her to Tupelo, Mississippi, on the morning of August 20, 2001. They went to visit her daughter and Turner’s sister, Sherbert Burkhalter. Mary said that she remembered the date because when she returned to work the following day, some of her customers were talking about Juanita’s murder.

¶ 13. Burkhalter also testified that Turner and his mother had visited her in Tupelo on August 20th. She was employed at Hardee’s, and she said that Mary and Turner had visited her at work. Turner, who was unemployed at the time, filled out an application to work at Har-dee’s. The application is dated August 20, 2001. However, Burkhalter admitted on cross-examination that the applications could be taken from the store, filled out at a later time, and dated and returned whenever the applicant chose.

¶ 14. The jury found Turner guilty of capital murder, and Turner was sentenced to life without the possibility of parole.

ANALYSIS

1. Whether there was sufficient evidence to support Turner’s conviction.

¶ 15. There was no dispute at trial as to the crime that occurred. Overwhelming evidence was presented to prove that Juanita was brutally beaten in the course of a robbery and that her injuries resulted in death. The disputed issue during the trial was whether Turner was one of the people involved in the crime. In order to prove his involvement, the State presented the testimony of Riley, an accomplice who the State had also charged with capital murder. Turner claims that Riley’s testimony was unreliable and was insufficient to prove that Turner had participated in Juanita’s murder.

¶ 16. When reviewing the denial of a motion for a directed verdict on an objection to the legal sufficiency of the evidence, we examine the evidence in a light most favorable to the State to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). “[T]he jury is charged with the responsibility for weighing and considering conflicting evidence and the credibility of witnesses.” Neal v. State, 451 So.2d 743, 758 (Miss.1984).

¶ 17. Turner argues that Riley’s accomplice testimony cannot support Turner’s conviction because it was uncorroborated testimony that was unreasonable, self-contradictory, or substantially impeached. The supreme court set forth this standard for using accomplice testimony in Jones v. State, 368 So.2d 1265, 1269 (Miss.1979), stating:

The rule is well settled that, while a conviction may be sustained on the uncorroborated testimony of an accomplice, it is equally well settled that such a conviction should not be upheld where such testimony is improbable, self-contradictory, and unreasonable on its face, and especially where it is impeached by unimpeached witnesses.

Id. (quoting Creed v. State, 179 Miss. 700, 705, 176 So. 596, 597 (1937)).

¶ 18. In Evans v. State, 460 So.2d 824, 826-27 (Miss.1984), the supreme court elaborated upon Jones, holding:

the uncorroborated testimony of an accomplice may be sufficient to convict an accused. Where there is slight convbo-rative evidence, the accomplice’s testimony is likewise sufficient to sustain the verdict. However, such testimony should be viewed with great caution and suspicion and must be reasonable, not improbable, self-contradictory or substantially impeached.

(Emphasis added).

¶ 19. Riley gave his first statement to the police at 8:30 a.m. on January 6, 2002, stating the following:

The day the old lady was killed (08-20-01) before she was killed at Reed R[oa]d ... I had walked to my grandma’s and got a pear. When I was walking back down Northside, I cam[e] to [the] corner of Northside and Westside. Standing at the stop sign at the corner were James Paster, Willie Prater, Destiny Moore, “Little Mark” (real name unknown)[,] Devail Hudson, and another tall[,] skinny[,] black male with two front teeth missing named Derwin. I notice Destiny Moore had on a pair of grey Nautiea tennis shoes. I had a pair of grey Náu-tica tennis shoes without the laces stolen from my house. Destiny and I started to get into it because he had my shoes. Devail told Destiny to give me my shoes. While I was there Devail was talking about robbing that lady, someone said [what] are you gonna do to the lady? Devail said, I’m gonna rob that old white b* ⅜ *h, I know she got [sic] something. Then Willie Prater said to Devail, “Are you gonna kill that old lady?” Devail said, ‘Yeah, I’m gonna kill her.” Devail wanted to see what the old lady had. After, I got my shoes from Destiny, Devail said let’s go and James Paster, Willie Prater, Destiny Moore, “Little Mark,” Devail Hudson and Derwin started going to the old lady’s house at the corner of Reed R[oa]d and Westside. I was walking toward[] my house at Lander’s Trailer Park, I got to the gate at [the] entrance to Westside for Lander’s Trailer Park, I saw all them go into the old lady’s house. Then a little later, I saw Derwin run out [of] the house and fall down. Then Prater went on Reed [Road] from the house. Destiny went to his house. Devail and the other guys ended up in Lander’s Trailer Park but Little Mark and Destiny went to Destiny’s house. I went to my house. But I saw Devail go back into the house again. I didn’t see him leave this time. I walked down to the store to meet my mother. I think Devail went back into the house to kill the old lady and burn the house down. Then later I saw De-vail give Derwin a watch that Devail had. It was a silver watch, a Nautiea watch. Devail gave this watch to Der-win because he was talking about what they got out of the house, meaning the old lady’s house. Derwin told Devail, I had to get out of there for what y’all were doing. Devail said, ‘You like this watch.” Derwin said you got it free handed. Devail didn’t say anything. One of the guys said there goes Bubba. I said y’all are gonna get caught, in my mind. They were gonna get the same thing done to them for killing the old lady. Devail had changed clothes the second time I saw him after he went back into the old lady’s house. Devail was wearing blue colored clothes and changed into something different after he robbed the house. When Devail said he was gonna kill the old lady, I had no doubt in my mind he would kill, but I wasn’t around to see it. Devail was saying at the stop sign he didn’t want to wear a particular shoe when he robbed the old lady. Destiny went to his house and got another pair of shoes. Destiny lives right near the stop sign at North-side and Westside. Then they went and robbed the old lady. I feel it is the right thing to do to tell the police what happened to the old lady. I would want someone to do the same thing I did if it was my family.

Riley gave a second statement at 4:10 p.m. that day, stating:

On 08-20-01[,] Devail Hudson, Willie Prater, Destiny Moore, James Paster, Demarcus Evans and Derrick Turner threatened me. Destiny Moore was wearing my grey Nautiea Shoes. They told me I was gonna be their lookout for robbing the old lady at Reed R[oa]d and Westside. They said my shoes had already been there. I didn’t want to be the lookout, I was scared. Willie Prater said to suck it up, stop[ ] being a b* * *h. Devail said[,] “Let’s go,” and they all went inside the old lady’s house. I did watch out for them[,] but I didn’t want to. Derrick Turner was the first to run out[,] and he fell down. They all later came out of the house and met up at Lander’s Trailer Park. Then Devail went back into the house by himself. I saw him go back in the door as I went up the road. I didn’t want to be around them anymore. I didn’t get any cut from the robbery. I knew Devail was gonna kill her.

¶ 20. We must first determine whether Riley’s testimony is uncorroborated as Turner contends. We find that the record shows that the State offered some corroboration of Riley’s account. Even though Riley’s first statement referred to Turner as Derwin instead of Derrick, Riley described Turner as a “tall, skinny, black male with two front teeth missing.” Turner’s mother, Mary, testified that this description correctly described Turner. Riley further testified that he had seen the group of men enter the Millers’ back door from where he was standing at the corner of Northside Drive and Westside Drive. Lt. Lott testified that, during his investigation, he was able to see the Millers’ back door from that spot. Also, the search dog’s handler testified that the search dog tracked Hudson’s scent to and from the back door of the Miller’s home indicating that Hudson had entered through the back door as Riley stated.

¶ 21. Stephens testified that she saw a group of men — including Hudson and Riley — standing at the entrance of Lander’s Trailer Park on the morning of August 20, 2001. Her statement corroborates Riley’s testimony that he was with the group of men at the entrance to the trailer park on the morning of the murder.

¶ 22. Even if we conclude that this amounts to only slight corroboration of Riley’s testimony, we find that his account of Turner’s involvement in the crime was not unreasonable, improbable, self-contradictory, or substantially impeached. Turner claims that Riley’s testimony was all of these things because Riley, who was also charged with capital murder in 2002, filed certain pro se pleadings in his case under the alias Q. Marqelilous Tirgger. In those pleadings, Riley falsely claimed to be married with children. Riley admitted that he had filed these falsified court documents to bring attention to his pending case.

¶ 23. Turner further claims that Riley’s testimony is untrustworthy because Riley has been charged in the crime. Turner argues that the State does not believe its own witness because, despite Riley’s assertion that he was not involved in the murder, the State has maintained its charge against Riley. However, there is a distinction here. Riley claims that he was not involved in the plan or the actions taken to rob and murder Juanita. But Riley admitted that he had acted as a lookout for the group because he was afraid of and threatened by Hudson. Riley’s role as the lookout, to which he admitted, was the basis of his arrest. That the State maintained the charge against Riley does not prove any untruth in Riley’s testimony.

¶ 24. Lt. Lott testified that Riley had lied to him on four occasions: (1) Riley claimed to have called 9-1-1 on the day of the murder, although there is no record of that call; (2) Riley claimed that he gave a statement to an officer on the day of the murder, although he was never interviewed by law enforcement until January 6, 2002; (3) he referred to the defendant as Derwin, not Derrick, in his first statement; and (4) he did not admit that he was the lookout until he made his second statement. Lt. Lott testified that, despite these lies by Riley, he believed Riley’s testimony as to Turner’s involvement in the crime.

¶ 25. Riley’s description of Turner was never contradicted. In his first statement, Riley described a man named Derwin who was a tall, skinny, black male missing two front teeth. The State presented evidence that Riley and Turner worked at the same construction company with a man named Derwin. The State must be given the benefit of all reasonable inferences that may be drawn from the evidence. Corbin v. State, 585 So.2d 713, 715 (Miss.1991). Riley gave an exact description of Turner; it is reasonable to infer that Riley mistakenly called Turner by the wrong name in the first statement. Riley clearly named Turner as one of the perpetrators in his second statement.

¶ 26. We cannot hold that a reasonable jury could not give any credit to Riley’s testimony as a result of his lies. All of the lies, except the issue of Turner’s name, relate to Riley’s potential involvement in the murder. It is entirely reasonable that Riley was able to give an account of what he saw yet attempt to distance himself from any involvement in the crime. Riley’s statements identifying Turner as one of the men who went inside the Millers’ home were not impeached. The jury was able to weigh the credibility of Riley’s testimony. There was sufficient evidence to support the jury’s decision. Accordingly, this issue has no merit.

2. Whether the circuit court improperly refused Turner’s requested jury instruction on the impeachment of witnesses.

¶ 27. Turner claims that the circuit court improperly refused Turner’s requested jury instruction on the impeachment of witnesses. Specifically, he argues that because the State admitted that Riley had been untruthful in his prior statements to the police, the circuit court was required to give the impeachment instruction. The State counters that the jury’s duty to weigh the testimony was covered in another instruction.

¶28. “Whether to give a jury instruction is within the sound discretion of the trial court.” Chamberlin v. State, 989 So.2d 320, 341-42 (¶ 80) (Miss.2008) (citation omitted). We review the jury instructions given as a whole to determine whether the refusal of a particular instruction was in error. Taylor v. State, 763 So.2d 913, 915 (¶8) (Miss.Ct.App.2000). If the instructions fairly state the law of the case and no injustice is created, no reversible error will be found. Id. “A defendant is entitled to have jury instructions given which present his theory of the case[;] however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Poole v. State, 826 So.2d 1222, 1230 (¶ 27) (Miss.2002) (quoting Smith v. State, 802 So.2d 82, 88 (¶ 20) (Miss.2001)).

¶ 29. Turner offered Instruction D-2, which states:

The testimony of a witness may be discredited by showing that the witness testified falsely concerning a material matter, or by evidence that at some other time the witness said or did something, or failed to say or do something, which is inconsistent with the testimony the witness gave at this trial.
Earlier statements of a witness were not admitted in evidence to prove that the contents of those statements are true. You may consider the earlier statements only to determine whether you think they are consistent or inconsistent with the trial testimony of the witness and therefore whether they affect the credibility of that witness.
If you believe that a witness has been discredited in this manner, it is your exclusive right to give the testimony of that witness whatever weight you think it deserves. I remind you that a defendant has the right not to testify. When the defendant does testify, however, his testimony should be weighed and his credibility evaluated in the same way as that of any other witness.

¶ 30. There seems to be no dispute as to whether this instruction was a correct statement of the law or whether it had a foundation in the evidence. We are asked to determine whether it was sufficiently covered elsewhere in the instructions. The State points us to the circuit court’s Instruction C.01, which states in part:

You are the sole judges of the facts in this case. Your exclusive province is to determine what weight and what credibility will be assigned the testimony and supporting evidence of each witness in this case. You are required and expected to use your good common sense and sound honest judgment in considering and weighing the testimony of each witness who has testified in this case.

¶ 31. Turner acknowledges Swann v. State, 806 So.2d 1111, 1117 (¶¶ 23-24) (Miss.2002), where the supreme court held that a general instruction on the weight and credibility of a witness, together with the cross-examination and closing argument that reveal the inconsistencies in a witness’s testimony, is a basis to refuse an impeachment instruction. But Turner maintains that the holding in Swann does not apply when the witness admits he has lied or the State concedes that the witness has lied. He cites Ellis v. State, 790 So.2d 813 (Miss.2001) to support this argument. However, we find that Ellis is distinguishable from this case.

¶ 32. Antwon Ellis’s conviction for murder was based largely upon the testimony of his accomplice, Kendaryll Robinson. Id. at 814 (¶ 2). Robinson testified that, while acting as a lookout, he heard a gunshot and saw a man fall to the ground. Id. He looked up and saw Ellis shooting at the victim. Id. Robinson admitted that he had lied when he first told the police that he had not seen anyone fire any shots. Id. at (¶3).

¶ 33. At trial, Ellis requested an impeachment instruction. The circuit court refused Ellis’s instruction and gave its own general instruction about weighing the credibility of witnesses. Id. at (¶ 4). Importantly, a cautionary instruction concerning the testimony of an accomplice was not given. Id. at 816 (¶ 8). Robinson directly contradicted his own statement that was at the heart of the issue — whether Ellis was involved in the crime. Id. at (¶ 9). The supreme court reversed Ellis’s conviction and remanded the case for a new trial. Id. at 817 (¶ 10).

¶ 34. Here, unlike Ellis, the jury was instructed to consider and weigh Riley’s testimony as an accomplice with great care, caution, and suspicion. The two cases are similar in that the accomplices both lied at some point in their prior testimonies. However, there is a distinction.

¶ 35. In Ellis, the accomplice contradicted his statement that Ellis was involved in the crime. That was the key issue before the jury. Here, Riley was shown to have lied about four matters: he said he had called 9-1-1; he said he had given a statement to an officer on the day of the murder; he referred to Turner as Derwin instead of Derrick; and he did not immediately admit that he had acted as a lookout. These inconsistencies do not go to the ultimate issue of whether Turner was one of the men involved in the crime. The only one related to Turner is the mistaken name. As discussed above, Riley did give the wrong name initially, but he gave a perfect description of Turner despite the error in the name. It is evident that Riley was attempting to avoid punishment for his role in the crime by denying his involvement as the lookout and by claiming that he had called the police to report the crime.

¶ 36. However, these inconsistencies were fully revealed during cross-examination and closing argument. The jury was aware that it should take caution when considering Riley’s accomplice testimony. According to Swann, we conclude that the circuit court’s refusal of Turner’s requested impeachment instruction was not an abuse of discretion; therefore, this issue has no merit.

3. Whether the circuit court improperly denied Turner’s jury instruction requiring acquittal where an accomplice’s testimony was impeached, unreasonable, or self-contradictory.

¶ 37. Turner argues that the jury should have been instructed that he could not be convicted based on the uncorroborated testimony of an accomplice when that testimony was impeached, unreasonable, or self-contradictory. At trial, Turner offered Instruction D-8, which states:

The Court instructs the jury that the uncorroborated testimony of an accomplice that is unreasonable, self-contradictory or substantially impeached at trial is not enough to convict an accused of an offense. If you find that Bentore Riley’s testimony was either unreasonable, self-contradictory, or substantially impeached, his testimony alone may not be used to convict Derrick Turner of capital murder.

¶ 38. The State objected and argued that the instruction went to the sufficiency of the evidence, which was a question of law for the circuit court to determine. The circuit court agreed and further held that the instruction was repetitious and a comment on the witness’s testimony.

¶ 39. Turner essentially makes the same argument as in his first assignment of error — there was insufficient evidence to convict Turner based on the impeached, unreasonable, or self-contradictory testimony of Riley. He claims that the jury should have been instructed on that point. However, the sufficiency of the evidence is an issue of law. Hughes v. State, 735 So.2d 238, 279 (¶ 195) (Miss.1999). The jury was not required to make such a conclusion of law.

¶ 40. Turner cites this Court’s decision in Riley v. State, 1 So.3d 877 (Miss.Ct.App. 2008) in support of his argument. James Riley argued that the verdict was against the overwhelming weight of the evidence because his accomplice had testified that the firearms Riley possessed were stolen. Id. at 882 (¶ 16). As a part of our analysis, we quoted the instruction given to the jury, which stated:

if you find the testimony of Martin Ick-om, an alleged accomplice of the defendant in this case, to be uncorroborated by other evidence, then and in that event, you should view such testimony with great caution and suspicion and that it must be reasonable and not improbable or self-contradictory or substantially impeached.

Id. at (¶ 18). We held that jury instructions like this ensured that the jury “viewed the evidence with the proper amount of skepticism”; therefore, the verdict was not against the overwhelming weight of the evidence. Id.

¶ 41. Riley is unlike this case in two respects. First, the issue in Riley was whether the verdict was against the overwhelming weight of the evidence — a determination to be made by an appellate court after a conviction. No issue was ever raised as to whether the jury instruction was proper. Nor did this Court comment that the jury instruction given in Riley was required. This Court merely quoted the instruction given to the jury as evidence that the jury’s verdict acknowledged the suspicion placed upon the testimony of an accomplice.

¶ 42. Second, the jury instruction given in Riley is much different from Turner’s proposed Instruction D-8. The instruction in Riley informed the jury that it should weigh the uncorroborated testimony of an accomplice with great caution. Instruction D-8 states the principle of law that a defendant may not be convicted solely on the uncorroborated testimony of an accomplice when that testimony is impeached, unreasonable, or self-contradictory. Our decision in Riley does not support Turner’s argument that his proposed instruction was required. We find no abuse of discretion in the circuit court’s refusal of Instruction D-8; thus, this issue is without merit.

Jh Whether the jury’s verdict is against the overwhelming weight of the evidence.

¶ 43. Lastly, Turner contends that the jury’s verdict is against the overwhelming weight of the evidence. Specifically, he claims that the weight of the evidence favored him if the discrepancies in Riley’s testimony were compared to his alibi evidence.

¶ 44. “When reviewing a denial of a motion for a new trial based on an objection to 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, 895 So.2d at 844 (¶ 18). The evidence is weighed in the light most favorable to the verdict. Id. The power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Id. If the verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id.

¶45. We have discussed Riley’s testimony at length above. To rebut Riley’s testimony, Turner presented several alibi witnesses. His mother and sister testified that Turner was in Tupelo on the morning of the murder. Turner presented an application for employment at Hardee’s in Tupelo. The application was dated the same day as the murder; however, it was admitted that the date on the application could not be verified.

¶ 46. Riley’s testimony was not the only evidence that refuted Turner’s alleged alibi. In Turner’s original statement to the police, he claimed that he was at work with Hodges Construction on the morning of the murder. When the police told Turner that he was not yet employed at Hodges Construction at that time, Turner claimed that he must have been at home asleep. He never stated that he was in Tupelo that morning.

¶ 47. Weighing the evidence in the light most favorable to the verdict, we find that the jury’s verdict is not contrary to the overwhelming weight of the evidence. Allowing the verdict to stand does not sanction an unconscionable injustice. Accordingly, this issue is without merit.

¶ 48. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The test announced by the Ellis court to determine whether a cautionary instruction should be given has been overruled by Williams v. State, 32 So.3d 486, 491 (¶ 17) (Miss.2010). Even so, the distinction remains that there was no instruction in Ellis that cautioned the jury about its reliance upon accomplice testimony.


author: KING, C.J.,

text:
    Angela HUMPHRIES and Kevin Fromme, Appellants v. PEARLWOOD APARTMENTS PARTNERSHIP and Mac-Re, LLC, Appellees.
    No. 2009-CA-01586-COA.
    Court of Appeals of Mississippi.
    Jan. 25, 2011.
    Rehearing Denied May 17, 2011.
    Certiorari Denied Aug. 18, 2011.
    Certiorari Dismissed as Improvidently Granted Sept. 29, 2011.

      James D. Bell, attorney for appellants.
    Kelley Mitchell Berry, Elise Berry Munn, attorneys for appellees.
    Before KING, C.J., BARNES and CARLTON, JJ.
   KING, C.J.,

for the Court:

¶ 1. Angela Humphries and Kevin From-me sued Pearlwood Apartments Partnership; Calhoun Development, Incorporated; Mac-Re, LLC; and Calhoun Property Management, Incorporated (hereinafter collectively referred to as Pearlwood), alleging that the construction and maintenance of the apartment complex caused flooding and damage to them property. The Rankin County Circuit Court granted Pearlwood’s motion for summary judgment, finding that Humphries’s and From-me’s claim was time-barred. Aggrieved, Humphries and Fromme appeal, raising one issue: whether the trial court erred by finding that their claim is barred by the statute of limitations. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In June 2002, Humphries and From-me purchased a home in Pearl, Mississippi, which was located downhill from the Pearl-wood Apartments. Before moving into the home, an insurance agent told Humphries and Fromme that the patio area had water damage that had been caused by flooding.

¶ 3. Humphries and Fromme’s property flooded in October 2002. Neighbors told Humphries and Fromme that the area began flooding after trees were cut down to build the apartment complex. On February 23, 2006, Humphries and Fromme filed a lawsuit against Pearlwood, alleging, in pertinent part, that:

6. ... In the construction and maintenance of the Pearlwood Apartments, the natural flow of rain water was negligently disrupted, so that drainage now flows in the home of the Plaintiffs.
7. The Defendants owed a duty to the Plaintiffs and others to construct and maintain their property so as not to alter the natural flow of water in such a manner as to cause damage to “down stream” property.
8. As a proximate result of the negligence of the Defendants in changing the natural flow of water and the failure of the Defendants to properly maintain their property so as to prevent “down stream” damage, the Plaintiffs have been damaged in the amount of $90,000 by repeated flooding.

Pearlwood filed its answer on June 8, 2006, denying fault and asserting affirmative defenses. Thereafter, the parties attempted to settle the case, which proved to be unsuccessful.

¶4. On February 17, 2009, Pearlwood filed a motion for summary judgment and argued that: Humphries and Fromme discovered or should have discovered their alleged claim against Pearlwood in October 2002; they failed to file suit within three years of this date; thus, the claim is time-barred. In response, Humphries and Fromme argued that the home flooded numerous times between October 2002 to March 2003, and they timely filed them lawsuit within three years of the March 2003 flood. On June 12, 2009, Humphries and Fromme filed a motion to amend their complaint to allege that, after this lawsuit was filed, they learned that Pearlwood negligently repaired and maintained its retention pond, which caused additional flooding and damage to their property. They attached letters from the City of Pearl to Pearlwood as evidence regarding the maintenance of the retention pond.

¶ 5. On August 3, 2009, the trial court granted Pearlwood’s motion for summary judgment. Humphries and Fromme filed a motion to reconsider, and the trial court denied the motion. Aggrieved, Humphries and Fromme timely filed this appeal.

STANDARD OF REVIEW

¶ 6. An issue concerning the statute of limitations is a question of law, which is subject to a de novo standard of review. Fletcher v. Lyles, 999 So.2d 1271, 1276 (¶ 20) (Miss.2009). In addition, this Court reviews the trial court’s grant or denial of a motion for summary judgment under a de novo standard of review. Id. At the trial level, “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

ANALYSIS

¶ 7. Humphries and Fromme contend that the trial court erred by finding that their claim is time-barred, arguing that the flooding caused by the construction of Pearlwood is a continuing tort that tolled the statute of limitations. Hum-phries and Fromme also argue that Pearl-wood failed to provide proper maintenance of its retention pond, storm drains, and curb inlets, which caused more flooding and damage to them property. Conversely, Pearlwood argues that: the flooding was not a continuing tort; Humphries and Fromme admitted that they believed Pearlwood was the cause of the flooding as early as October 2002; Humphries and Fromme failed to file their complaint within three years of this date; thus, the claim is time-barred.

¶ 8. We must determine whether the flooding is a continuous tort sufficient to toll the three-year statute of limitations. “A ‘continuing tort’ is one inflicted over a period of time; it involves a wrongful conduct that is repeated until desisted, and each day creates a separate cause of action. A continuing tort sufficient to toll a statute of limitations is occasioned by continual unlawful acts, not by continual ill effects from an original violation.” Pierce v. Cook, 992 So.2d 612, 619 (¶ 25) (Miss. 2008) (quoting Stevens v. Lake, 615 So.2d 1177, 1183 (Miss.1993)). Thus, the continuing-tort doctrine will not be applicable where the harm results from one wrongful act or omission. Id. (citation omitted).

¶ 9. Humphries and Fromme cited two cases in support of their position: Pierce and Robertson v. Chateau Legrand Property Owner’s Association, 39 So.3d 931 (Miss.Ct.App.2009). In Pierce, the Mississippi Supreme Court ruled that a plaintiffs claim for intentional infliction of emotional distress was a continuing tort where the defendant committed repeated acts of misconduct during his affair with the plaintiffs wife until the couple filed for divorce. Pierce, 992 So.2d at 619-20 (¶ 26). Accordingly, the supreme court ruled that the statute of limitations ran from the date of the last offense. Id.

¶ 10. In Robertson, the plaintiff, a condominium owner, filed a lawsuit against the property owners’ association for a continuing trespass based on its allegedly renting the plaintiffs condominium without his consent. Robertson, 39 So.3d at 937-38 (¶ 18). The supreme court stated that a new cause of action was created every time the defendant rented the plaintiffs condominium without his consent. Id. at 939 (¶ 24). However, the supreme court found that the plaintiff did not have a cause of action for a continuing trespass because he implicitly consented to the renting of his condominium. Id. at 939-40 (¶¶ 26-30).

¶ 11. In Pierce and Robertson, the defendants repeatedly committed an overt act; which gave rise to a new cause of action. Humphries and Fromme’s case is distinguishable. In their complaint, Hum-phries and Fromme alleged that Pearl-wood negligently constructed and maintained its property, which disrupted the natural flow of rain water and caused their property to flood. In their response to the motion for summary judgment, Humphries and Fromme stated that after the October 2002 flood, they learned from neighbors that the flooding had begun after Pearl-wood removed trees to build the apartment complex. We find that the construction of the apartment complex was one event, not a repeated action.

¶ 12. “Where the tortuous act has been completed ... the period of limitations will not be extended on the ground of a continuing wrong.” Peavey Elecs. Corp. v. Baan U.S.A., Inc., 10 So.3d 945, 955 (¶ 23) (Miss.Ct.App.2009). The pleadings and depositions show that Humphries and Fromme knew as early as October 2002 that Pearlwood could have been responsible for the flooding. Thus, the statute of limitations began to run at this time. Because Humphries and Fromme failed to file their lawsuit within three years of this date, we find that their claim is barred by the statute of limitations.

¶ 13. Citing O.D. Lauck, d/b/a Meridian Memorial Park Cemetery v. Gilbert, 252 Miss. 371, 393, 173 So.2d 626, 637 (1965), Humphries and Fromme argue that: “[Rjepeated flooding caused by failure to clean out ditches of growth and debris is conduct of omission which rises to the level of a continuing trespass.” As previously mentioned, Humphries and Fromme filed a motion to amend their complaint to allege that, after this lawsuit was filed, Pearlwood failed to provide proper maintenance of its retention pond, which had caused additional flooding and damage to their property. The trial court did not rule on this motion. There is no evidence that Humphries and Fromme brought their motion back to the trial court’s attention. As the movants, it was Humphries’s and Fromme’s duty to obtain a ruling on the motion and failing to do so constitutes an abandonment of the motion. See U.R.C.C.C. 2.04; see also Anderson v. McRae’s, Inc., 931 So.2d 674, 678 (¶ 10) (Miss.Ct.App.2006). Thus, this issue is without merit.

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

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: IRVING, J.,

text:
    Bertrue JACKSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01549-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.
    Rehearing Denied June 28, 2011.
    Certiorari Denied Sept. 29, 2011.

      Johnnie E. Walls Jr., attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., IRVING and MAXWELL, JJ.
   IRVING, J.,

for the Court:

¶ 1. On July 13, 2009, Bertrue Jackson was convicted of Count I, aggravated assault, and Count II, possession of a firearm by a convicted felon. The Coahoma County Circuit Court sentenced Jackson to ten years for each count, with the sentences to run concurrently, all in the custody of the Mississippi Department of Corrections, and five years of post-release supervision on Count I. On July 17, 2009, Jackson filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court denied. Feeling aggrieved, Jackson appeals and argues that the circuit court erred in denying his post-trial motion and in refusing to permit a self-defense jury instruction.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 8. Jackson worked as a security guard at a night club in Friars Point, Mississippi. In the early morning hours of January 1, 2008, a fight broke out at the club. Frederick Magsby and his wife, Ken’Shaundra Davis, were both involved in the fight. Magsby testified that sometime during the altercation, he was struck in the head by an unidentified object. Magsby turned around and saw Jackson behind him. Assuming Jackson had hit him, Magsby began to walk toward Jackson. Magsby claimed that Jackson then pulled a gun from his pants and shot Magsby. Magsby fled, and Jackson shot Magsby a second time.

¶ 4. Officer Oliver Mitchell, a police officer on patrol in the area, heard the gunshots and headed toward the club. When he arrived, he spoke to Officer Kenneth Davis, who was already at the scene and had witnessed the shooting. Based on his conversation with Officer Davis, Officer Mitchell approached Jackson and asked if he had a gun. Jackson stated that he did. Officer Mitchell removed the gun from Jackson’s pants and arrested Jackson.

¶ 5. Jackson later gave a written statement to the police. In his statement, Jackson explained:

Two gentleman [sic] got into it — got into a fight. I was breaking the fight up but they jumped me.... The officer pulled his shot gun [sic] and shot into the air. But they didn’t stop.... So I was pulling them apart. Another gentlemen [sic] went for his gun and then I shot my gun[,] but the officer didn’t see the gentleman with the gun.

Jackson told the police that the man he saw reach for a gun was Jamarro Foster. According to Jackson, Foster and Magsby were standing side by side. When Foster reached for his gun, Jackson fired, intending to hit Foster, but the bullet hit Mags-by.

¶ 6. Tim Pollard, the club’s manager, testified that the club’s surveillance camera captured the shooting; however, the video had been inadvertently erased. Pollard and the club’s owner, Sherman Tyler, viewed the video before it was erased and testified that it showed that Jackson picked a gun up off the ground and pointed it at Magsby, who appeared to be reaching for a gun.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 8. “A motion for [a] J.N.O.V. challenges the legal sufficiency of the evidence.” Wilkins v. State, 1 So.3d 850, 852-53 (¶ 9) (Miss.2009) (quoting Ivy v. State, 949 So.2d 748, 751 (¶14) (Miss.2007)). When reviewing the legal sufficiency of evidence, an appellate court considers “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)).

¶ 9. “A motion for a new trial challenges the weight of the evidence.” Wilkins, 1 So.3d at 854 (¶ 11) (quoting Ivy, 949 So.2d at 753 (¶21)). An appellate court will not reverse a trial court’s decision to deny a motion for a new trial absent a finding that the trial court abused its discretion. Id. When reviewing a trial court’s decision to deny a motion for a new trial, the evidence is considered “in the light most favorable to the verdict.” Williams v. State, 35 So.3d 480, 491 (¶ 41) (Miss.2010) (citing Bush, 895 So.2d at 844 (¶ 18)). Therefore, we will only order a new trial when the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction [an] unconscionable injustice.” Id. (quoting Bush, 895 So.2d at 844 (¶ 18)).

1. Post-Trial Motion

¶ 10. Jackson argues that because he allegedly acted in self-defense, the State failed to establish every element of aggravated assault, and the trial court erred in denying his motion for a JNOV or a new trial. The elements of aggravated assault were set forth in jury instruction S-2:

If you find from the evidence in this case beyond a reasonable doubt that:
(1) on or about January 1, 2008, in Coahoma County, Mississippi the defendant, BERTRUE JACKSON, did unlawfully, willfully, and feloniously and purposefully or knowingly,
(2) cause bodily injury to Fredrick [sic] Magsby,
(3) with a deadly weapon, to-wit: a gun, by shooting Fredrick [sic] Mags-by-
(4) and not in necessary self-defense
then you shall find the defendant^] BERTRUE JACKSON[,] guilty of Count I of the indictment. If the State has failed to prove any one or more of the above elements beyond a reasonable doubt, then you shall find the defendant not guilty in Count I.

¶ 11. We find that the State sufficiently proved the elements of aggravated assault, including that Jackson was not acting in self-defense when he shot Magsby. Mags-by testified that he was not armed on the night of the shooting and that he did not threaten or provoke Jackson. Davis also testified that Magbsy was unarmed. Davis further testified that she saw Jackson hit Magsby on the head and pull a gun from his pants and shoot Magsby. The only testimony that Jackson offered in support of his claim of self-defense was that of Pollard and Tyler, both of whom admitted that they were not present at the time of the shooting. Instead, their testimonies that Magsby appeared to be reaching for a gun was based on the surveillance video that had been inadvertently erased. Viewing the evidence in the light most favorable to the verdict, we find that it supports Jackson’s aggravated-assault conviction. Therefore, the circuit court did not err in denying Jackson’s motion for a JNOV or a new trial.

2. Jury Instruction

¶ 12. Jackson also argues that the circuit court erred in denying a jury instruction that contemplated the use of a firearm by a convicted felon for the purpose of self-defense. However, Jackson cites no authority in support of his assignment of error. The Mississippi Supreme Court has long held that “an argument unsupported by cited authority need not be eonsidered[.]” Alexander v. Womack, 857 So.2d 59, 62 (¶ 12) (Miss.2003) (quoting Dowdle Butane Gas Co. v. Moore, 831 So.2d 1124, 1136 (¶ 34) (Miss.2002)). Unsupported assertions are deemed abandoned and procedurally barred from our consideration. Id.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND COUNT II, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF TEN YEARS, WITH FIVE YEARS OF POST-RELEASE SUPERVISION FOR COUNT I, AND TEN YEARS FOR COUNT II, WITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Officer Davis died prior to Jackson’s trial.

      . Jackson invoked his right not to testify at trial.


author: GRIFFIS, P.J.,

text:
    Rico Kiwanis DUNLAP, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01735-COA.
    Court of Appeals of Mississippi.
    April 19, 2011.
    Rehearing Denied June 28, 2011.
    Certiorari Denied Sept. 29, 2011.

      Rico Kiwanis Dunlap, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Rico Kiwanis Dunlap appeals the judgment of the DeSoto County Circuit Court that dismissed his motion for post-conviction collateral relief. He claims that: (1) the circuit court resentenced him in violation of his due-process rights and the Fifth Amendment’s protection against double jeopardy; (2) his counsel was ineffective in failing to object to this re-sentencing; and (3) the circuit court improperly dismissed his motion without an evidentiary hearing. We find no error in the court’s modification of Dunlap’s sentence. Therefore, we affirm.

FACTS

¶ 2. Dunlap was charged with Count I— possession of cocaine with the intent to sell under Mississippi Code Annotated section 41-29-139(a)(l) (Rev.2009), Count II — felon in possession of a firearm under Mississippi Code Annotated section 97-37-5 (Supp.2010), and Count III — possession of marijuana under Mississippi Code Annotated section 41-29-139. He was charged as a recidivist and as a habitual offender in Counts I and II.

¶ 3. On November 27, 2007, Dunlap entered a plea of guilty to all three charges. Under Count I, he was sentenced to twenty-five years, with fifteen to serve followed by ten years of post-release supervision. On Count II, Dunlap was sentenced to three years to be served concurrently with the sentence in Count I. Count III was remanded to the file.

¶ 4. On November 30, 2007, Dunlap appeared before the circuit court again on the State’s motion to set aside the sentence while in term. The State presented evidence that, after Dunlap had entered his guilty plea and was sentenced on November 27th, he was searched by the De-Soto County Sheriffs Department prior to his incarceration. The officer who conducted the search found a bag on Dunlap’s person containing cocaine, marijuana, and hydrocodone.

¶ 5. Dunlap admitted that he was carrying the drugs. The State requested that Dunlap be resentenced due to the high probability that Dunlap possessed the drugs when he appeared in court to enter his guilty plea. The circuit judge modified Dunlap’s time to serve on Count I to a twenty-five-year sentence with twenty years to serve and five years of post-release supervision.

¶ 6. Dunlap filed his motion for post-conviction relief. He claimed that his re-sentencing was a violation of his due-process rights and the Fifth Amendment’s prohibition against double jeopardy. The circuit court dismissed the motion finding that it had the authority to amend the sentence within the same term of court. Dunlap now appeals the circuit court’s judgment.

STANDARD OF REVIEW

¶ 7. A circuit court’s dismissal of a motion for post-conviction collateral relief will not be reversed on appeal absent a finding that the trial court’s decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

1. Re-sentencing

¶ 8. Dunlap asserts several violations as a result of the circuit court’s decision to resentence him to serve twenty years instead of fifteen years on Count I. He claims: (1) the re-sentencing constituted double jeopardy; (2) his due-process rights were violated because the circuit court did not advise him that his sentence could be appealed to the supreme court and because he was not allowed to withdraw his guilty plea before a harsher sentence was imposed; and (3) he was entitled to an evidentiary hearing before he was resentenced.

¶ 9. What Dunlap fails to recognize is that the circuit judge did not sentence Dunlap a second time for the same crime; instead, the circuit judge exercised his ‘“inherent authority’ to alter a sentence until [the] regular term of court expires.” Leverette v. State, 812 So.2d 241, 244 (¶ 11) (Miss.Ct.App.2002) (citing Miss. Comm’n on Judicial Performance v. Russell, 691 So.2d 929, 944 (Miss.1997)); see also Ales v. State, 921 So.2d 1284, 1286 (¶ 9) (Miss. Ct.App.2006) (holding that the amendment of a defendant’s sentence is within the circuit court’s jurisdiction if done before the expiration of the same term of court); Pegues v. State, 840 So.2d 721, 726 (¶ 19) (Miss.Ct.App.2002) (affirming defendant’s re-sentencing within the same term of court after defendant’s skirmish with courtroom deputies). Thus, the re-sentencing did not constitute double jeopardy.

¶ 10. Further, despite Dunlap’s contention, “a trial court is not required to inform a defendant who pleads guilty of his right to appeal the resultant sentence.” Cook v. State, 990 So.2d 788, 793 (¶ 11) (Miss.Ct. App.2008) (citing Coleman v. State, 979 So.2d 731, 733 (¶ 6) (Miss.Ct.App.2008)).

¶ 11. His claim that he was entitled to a hearing or to withdraw his plea on Count I before he was resentenced also fails. Dunlap did not enter a separate guilty plea on Count I for which another hearing was necessary. The circuit court had already accepted Dunlap’s guilty plea as voluntarily and knowingly entered. Dunlap was specifically informed that the circuit judge had the authority to sentence him to the maximum sentence of sixty years on Count I. He acknowledged this and affirmatively entered his guilty plea. The circuit court’s amendment of his time to serve did nothing to change Dunlap’s testimony or the circuit court’s finding that his guilty plea was knowingly and voluntarily entered.

¶ 12. The circuit judge had complete authority to modify Dunlap’s time to serve on the sentence in Count I. Accordingly, this issue has no merit.

2. Ineffective Assistance of Counsel

¶ 13. Dunlap also claims that his counsel was ineffective because counsel failed to object to the re-sentencing based on double jeopardy. To prove ineffective assistance of counsel, Dunlap must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Dunlap to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, Dunlap must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In eases involving post-conviction collateral relief, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 14. Dunlap has failed to prove any deficiency on the part of his counsel. His only claim is that his counsel did nothing while the circuit court changed his sentence. However, as discussed above, this alteration of his sentence was within the inherent power of the circuit court. Because Dunlap has failed to prove the first prong of the Strickland test, his claim for ineffective assistance must fail. Therefore, this issue has no merit.

3. Evidentiary Hearing

¶ 15. Finally, Dunlap argues that the circuit court erred in summarily dismissing his motion for post-conviction relief without first conducting an evidentiary hearing. However, “[t]he trial court may summarily dismiss a motion for post-conviction relief ‘if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the mov-ant is not entitled to any relief.’ ” Burrough v. State, 9 So.3d 368, 371 (¶ 6) (Miss.2009) (quoting Miss.Code Ann. § 99-39-11(2) (Rev.2007)).

¶ 16. The circuit court entered a detailed order in which each of Dunlap’s claims were fully addressed. It was clear from the motion that Dunlap was not entitled to the relief requested; therefore, the circuit court properly dismissed the motion. Accordingly, this issue has no merit.

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

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


author: LEE, C.J.,

text:
    Ernest Edward COLLINS Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00937-COA.
    Court of Appeals of Mississippi.
    May 31, 2011.
    Rehearing Denied Sept. 27, 2011.

      Leslie S. Lee, Jackson, Hunter Nolan Aikens, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Ernest Collins Jr. was convicted in the Harrison County Circuit Court of three counts of sexual battery, one count of touching a child for lustful purposes, and one count of statutory rape. He was sentenced to concurrent fifteen-year sentences on Counts I, II, III, and IV, and he was sentenced to twenty years on Count V. The sentence imposed in Count V was ordered to run consecutively with the sentences imposed in Counts I-IV, for a total sentence of thirty-five years to serve in the custody of the Mississippi Department of Corrections. Collins moved for a new trial, which was denied.

¶2. Collins now appeals, asserting the following issues: (1) Dr. J. Donald Math-erne’s testimony was highly prejudicial and only served to bolster the victim’s credibility, and (2) alternatively, trial counsel was ineffective for failing to object to Dr. Matherne’s testimony.

FACTS

¶ 3. Collins lived in Harrison County, Mississippi, with his wife and two children. In February 2005, Collins’s wife told her daughter, S.C., that she planned to divorce Collins. S.C. responded by telling her mother that Collins had sexually abused her. S.C. stated that she did not have the courage to tell anyone until this point. S.C. was sixteen years old at the time of trial and twelve or thirteen years old when the abuse occurred.

¶ 4. At trial, S.C. testified that Collins engaged in sexual activity with her on multiple occasions when the two were alone. S.C. testified that Collins touched her breasts and vagina; she performed oral sex on him; he performed oral sex on her; and they had sexual intercourse. She said that Collins told her she would get in trouble and go to jail if she told anyone. S.C. stated that the acts happened “more than once,” but she could not state a specific number of times.

¶ 5. S.C.’s brother testified that on several occasions, he saw S.C. and Collins in Collins’s bedroom on the bed. The lights were off, and he never saw what they were doing. This happened “maybe about five times.” On one occasion, he asked to come in the bedroom, but Collins made an excuse and told him not to come in the room.

DISCUSSION

I. EXPERT TESTIMONY

¶ 6. At the request of the Department of Human Services, Dr. Matherne, a clinical psychologist, interviewed S.C. Dr. Math-erne testified at trial regarding his interview with S.C. No objection was made to Dr. Matherne’s testimony or his qualification as an expert in clinical psychology.

¶ 7. Dr. Matherne testified that he gave S.C. anatomical drawings for her to indicate where Collins had touched her. Dr. Matherne testified that S.C. indicated that penetration had occurred. Dr. Matherne then asked S.C. to illustrate the penetration. He described his method for minors to demonstrate penetration as follows:

In terms of the interview and the clinical examination, there is a question that sometimes will be raised about whether the touching involved a degree of penetration. I developed a methodology to address that question. It’s not a test, it’s a methodology. I had her, as I do with others, make a fist with one hand indicating to her that the fist was to then represent the vaginal area. Then I said I wanted her to show me what happened. I didn’t tell her anything to do with the other hand, but she immediately took her other hand, inserted her index finger inside of her closed fist.

¶ 8. When asked if he had reached a conclusion as to whether S.C. had been the victim of sexual abuse within a reasonable degree of scientific certainty, Dr. Math-erne responded: ‘Yes. I refer to it as clinical opinion and clinical certainty. And in my clinical opinion ... there was an allegation of sexual abuse.... ”

¶ 9. After Dr. Matherne’s testimony, the State rested its case. Collins moved for a directed verdict. The trial court denied the motion but, in. doing so, stated as follows:

It was not necessary, in my view, for Dr. Matherne to come here and testify, because he does it all the time drawing his own conclusion, which, if there had been an objection to it, I would have sustained it.
His opinion, the jury will be told by way of instruction, that his opinion will be accepted or rejected, whichever they think is appropriate based upon his experience and his training.
Dr. Matherne always wishes, and you can tell him that I said this, I’ve said it in his presence, he always has a desire to press his point of trying to include the Court of Appeals or the Supreme Court in accepting his methodology, and it’s not accepted by anybody. That being as it may, [I] overrule your motion.

The defense did not present any witnesses.

¶ 10. Collins argues that Dr. Matherne’s testimony was inadmissible under Mississippi Rule of Evidence 702 because it was not based on scientific, technical, or specialized knowledge. Collins asserts that Dr. Matherne did nothing but repeat what S.C. had told him and agree with it. Collins also argues that Dr. Matherne’s “methodology” was not “the product of reliable principles and methods.” M.R.E. 702.

¶ 11. This issue must be reviewed for plain error since no objection was made to Dr. Matherne’s testimony at trial. Under a plain-error analysis, this Court may only reverse on an issue not otherwise preserved for appeal if there was an error that involved a fundamental right and resulted in a “manifest miscarriage of justice” or “seriously affect[ed] the fairness, integrity!,] or public reputation of judicial proceedings.” Brown v. State, 995 So.2d 698, 708 (¶ 21) (Miss.2008) (citations omitted).

¶ 12. Collins argues that the admission of Dr. Matherne’s testimony affected his fundamental right to a fair trial because it was unreliable and only served to bolster S.C.’s testimony. Although the trial court found Dr. Matherne’s testimony suspect, we cannot find that it amounted to a “manifest miscarriage of justice.” Id. Dr. Matherne has a degree in psychology and a Ph.D. in clinical psychology. At the time of his testimony, he had been a clinical psychologist for forty years. He had testified as an expert in his field over 600 times.

¶ 13. Dr. Matherne testified that based on his experience, S.C. demonstrated behavior consistent with a victim of sexual abuse. He did not make a conclusion as to whether or not S.C. was a victim of sexual abuse. Testimony regarding whether a child’s statements to a psychologist are consistent with sexual abuse has been found admissible by this Court. Burbank v. State, 800 So.2d 540, 545 (¶ 11) (Miss.Ct. App.2001) (citing Hall v. State, 611 So.2d 915, 919-920 (Miss.1992)). In Burbank, this Court stated that “whether the [psychologist’s] assessment was consistent with a sex abuse victim ... is quite different than testifying that the child was a victim of sexual abuse.” Id. The conclusion that “the overall result was consistent with a child that had been sexually abused ... is proper and within the scope of expert testimony.” Id.

¶ 14. We find that it was not plain error for the trial court to allow Dr. Matherne’s testimony. This issue is without merit.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 15. Collins argues, in the alternative, if this Court does not find that Dr. Math-erne’s testimony was plain error, that his trial counsel was ineffective for failing to object to Dr. Matherne’s testimony.

¶ 16. To prove ineffective assistance of counsel, Collins must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a strong presumption that a counsel’s performance falls within the range of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 17. When a claim of ineffective assistance of counsel is raised on direct appeal, it should be addressed only when “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999). If this Court does not reverse on other grounds and is unable to conclude that the defendant received ineffective assistance of counsel, it should affirm “without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.” Id. Review on direct appeal of an ineffective-assistance-of-counsel claim is confined strictly to the record. Id. at 1102 (¶ 6).

¶ 18. We cannot find that Collins has established a reasonable probability that, had his attorney objected to Dr. Matherne’s testimony, the jury verdict would have been different. The Mississippi Supreme Court has held “that persons may be found guilty on the uncorroborated testimony of a single witness.” Withers v. State, 907 So.2d 342, 353 (¶ 32) (Miss.2005) (quoting Doby v. State, 532 So.2d 584, 591 (Miss.1988)). S.C. testified that Collins sexually abused her. Even without supporting testimony, the jury could have found Collins guilty. It is well settled that “[t]he jury determines the weight and credibility to give witness testimony and other evidence.” Moore v. State, 933 So.2d 910, 922 (¶ 43) (Miss.2006). S.C. testified in detail about multiple acts of sexual contact with her father. We find that her testimony alone was sufficient to support the conviction.

¶ 19. We find nothing in the record to show “ineffectiveness of constitutional dimensions” on behalf of Collins’s trial counsel. Collins’s ineffective-assistance-of-counsel claim is dismissed without prejudice to his right to later raise the issue in post-conviction proceedings if he so chooses.

¶ 20. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF COUNTS I, II, AND III, SEXUAL BATTERY, AND COUNT IV, TOUCHING A CHILD FOR LUSTFUL PURPOSES, AND SENTENCE OF FIFTEEN YEARS ON EACH COUNT, WITH THE SENTENCES TO RUN CONCURRENTLY WITH ONE ANOTHER, AND CONVICTION OF COUNT V, STATUTORY RAPE, AND SENTENCE OF TWENTY YEARS TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS IIV, FOR A TOTAL OF THIRTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . The Court of Appeals declines to identify minor victims of sexual crimes.