author:
IRVING, J.,
      CARLTON, J.,

text:
    Scott HARRISON and Mona Harrison, Appellants v. MAYOR & BOARD OF ALDERMAN OF the CITY OF BATESVILLE and Memphis Stone & Gravel Company, Appellees.
    No. 2009-CA-00981-COA.
    Court of Appeals of Mississippi.
    Oct. 26, 2010.
    Rehearing Denied March 22, 2011.
    Paul Bowie Watkins Jr., Pope Shannon Mallette, Oxford, attorneys for appellants.
    Benjamin E. Griffith, Cleveland, Edward Patrick Lancaster, Lauren M. Webb, Robert Tubb Jolly, Olive Branch, attorneys for appellees.
    Before MYERS, P.J., IRVING and MAXWELL, JJ.
   IRVING, J.,

for the Court:

¶ 1. This action arises from a zoning-variance request that was filed by Memphis Stone and Gravel Company. Memphis Stone is currently leasing property in Panola County, Mississippi, and filed the variance request in order to expand its mining operation to property adjacent to its currently leased property. Scott and Mona Harrison, owners and residents of property located near the leased property, opposed the requested variance. The Batesville City Planning Commission recommended approval of the variance, and the Mayor and Board of Aldermen of the City of Batesville approved the variance, ■with certain restrictions. The Harrisons appealed to the Panola County Circuit Court, which affirmed the Mayor and Board of Aldermen’s order. Feeling aggrieved, the Harrisons appeal and assert that the variance constitutes impermissible spot zoning and that the variance was granted even though Memphis Stone failed to prove that it would suffer a substantial hardship if it was not granted the variance.

¶ 2. Finding that the variance constitutes impermissible spot zoning, we reverse and render the judgment of the circuit court, which affirmed the Mayor and Board of Aldermen’s grant of the variance.

FACTS

¶ 3. The Harrisons own and reside on residential property located near sixty-five acres of property owned by Deborah and Timothy Haire, James Harvey, and Georgia, Billy, and Jane Seale. The sixty-five-acre tract is located in an R-l district (single-family residential) and a C-2 district (community business). In May 2003, the Panola County Board of Supervisors granted Memphis Stone a special exception to operate Brassell Mine, a mining operation and wash plant. Sometime thereafter, Memphis Stone sought to expand Brassell Mine and leased a sixty-five-acre tract north of Brassell Mine from the Haires and the Seales. The lease contains two separate parcels, and only eighteen of the sixty-five acres are within the city limits of Batesville. Batesville’s city code provides that mining or quarrying operations in R-l or C-2 districts are not allowed as a permitted or conditional use. Accordingly, on April 7, 2008, Memphis Stone filed a variance request with the City of Batesville seeking to “mine sand and gravel and convey material to [its] existing wash plant for processing” on the eighteen acres that fall within the city limits. The Planning Commission voted unanimously to approve Memphis Stone’s variance request. Then, a public hearing was held wherein the Harrisons, among others, appeared as opponents to the request. The Mayor and the Board of Aldermen took the matter under advisement until its next meeting on July 1, 2008, when it voted to grant the variance. During a July 15, 2008, meeting of the Mayor and Board of Aldermen, one of the aldermen made a motion to rescind the order granting the variance; however, that vote was defeated. Instead, the Mayor and Board of Aldermen voted to amend its grant of the variance to include several conditions.

¶ 4. As noted, the Harrisons appealed to the circuit court, which upheld the decision of the Mayor and Board of Aldermen. It is from that judgment that the Harrisons now appeal.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. In Perez v. Garden Isle Community Ass’n, 882 So.2d 217, 219 (¶ 6) (Miss.2004) (citing Broadacres Inc. v. City of Hattiesburg, 489 So.2d 501, 503 (Miss.1986)), our supreme court stated that “the standard of review in zoning cases is whether the action of the board or commission was arbitrary or capricious and whether it was supported by substantial evidence.” The Perez court also held that:

zoning decisions will not be set aside unless clearly shown to be arbitrary, capricious, discriminatory, illegal or without substantial evidentiary basis. There is a presumption of validity of a governing body’s enactment or amendment of a zoning ordinance and the burden of proof is on the party asserting its invalidity. Where the point at issue is “fairly debatable,” we will not disturb the zoning authority’s action.

Id. (quoting Carpenter v. City of Petal, 699 So.2d 928, 932 (¶ 13) (Miss.1997)).

¶ 6. The Harrisons contend that the variance should not have been granted because the variance results in impermissible spot zoning. “The term ‘spot zoning’ is ordinarily used where a zoning ordinance is amended reclassifying one or more tracts or lots for a use prohibited by the original zoning ordinance and out of harmony therewith.” McKibben v. City of Jackson, 193 So.2d 741, 744 (Miss.1967). The Harrisons rely on Drews v. City of Hattiesburg, 904 So.2d 138 (Miss.2005) to support their position.

¶ 7. In Drews, Lee Medical Development, LLC bought six lots that were zoned as B-l, professional business district. Id. at 140 (¶ 3). At some point thereafter, Lee Medical filed for six variances with the City of Hattiesburg in order to build a 60,000-square-foot medical-office building. Id. The Hattiesburg Board of Adjustments granted four of the variances, and on appeal, the Hattiesburg City Council voted to grant all six of the variances. Id. at (¶ 4). Fred and Bonnie Drews, residents of the property in question, opposed the variance and appealed to the Forrest County Circuit Court, which affirmed the city council’s decision. Id. at (¶ 1). The Mississippi Supreme Court held that:

the changes proposed in the six variances are so dramatic that they constitute a rezoning to B-3, two levels beyond the B-l (professional business district) lots in question. The differences between B-l and B-3 are so extreme that if the variances are granted, spot zoning would occur. The largest building that could [have been] ... built in B-l was 10,000 square feet. One of the granted variances would allow a single building on all the lots at a size of 60,000 square feet. The other variances included increasing the maximum allowed building height by 10 feet from 35 to 45 feet; reducing the number of parking places from 360 to 169; increasing the allowed percentage of “impervious surface” by 18% from 60% to 73%; reducing the minimum front “set back” from 25 feet to 10 feet; and allowing parking places in the front “set back” area.

Id. at 141-42 (¶ 10). The Drews court reversed, concluding that the variances constituted a rezoning “the effect of which is spot zoning.” Id. at 142 (¶ 12). The court also found as follows:

There is a clear[-]cut distinction between a validly enacted amendatory zoning ordinance and a “spot zoning” ordinance. Not all amendments which change or alter the character of a use district fall within the category of “spot zoning” as we generally understand the term. The term “spot zoning” is ordinarily used where a zoning ordinance is amended reclassifying one or more tracts or lots for a use prohibited by the original zoning ordinance and out of harmony therewith. Whether such an amendment will be held void depends upon the circumstances of each case. The one constant in the cases, as stated by the textwriter, where zoning ordinances have been invalidated due to “spot zoning” is that they were designed “to favor” someone. See 1 Yokley Zoning Law and Practice §§ 8-1 to 8-3 (3rd ed.1965).

Id. at 141 n. 2 (emphasis added) (quoting McWaters v. City of Biloxi, 591 So.2d 824, 828 (Miss.1991)).

¶ 8. As to variances, the Drews court held that: “serious questions arise when a variance is granted to permit a use otherwise prohibited by the ordinance; e.g., a service station or quick-stop grocery in a residential district. The most obvious danger is that the variance will be utilized to by-pass procedural safeguards required for valid amendment.” Id. at (¶ 9) (quoting Robert C. Khayat & David L. Reynolds, Zoning Law in Mississippi 45 Miss. L.J. 365, 383 (1974)).

¶ 9. The circuit court, relying on this Court’s opinion in Cockrell v. Panola County Board of Supervisors, 950 So.2d 1086 (Miss.Ct.App.2007), held that granting the variance would not constitute spot zoning. The circuit court stated:

[The] record reflects that the City had before it evidence of a public need for a good source of local aggregate and that the project would be a good asset for the local community’s economy that will likely be lost to future residential and commercial development based on the location of the property, the location of the current “Brassell Mine” directly to the South of the “Seale-Haire” property, which contains a total of 65 acres, all of which [are] outside of the City of Bates-ville except the 18 acres at issue.

¶ 10. In Cockrell, we addressed the issue of spot zoning as follows:

The mere fact that an area is small and is zoned at the request of a single owner and is of greater benefit to him than to others does not make out a case of spot zoning if there is a public need for it or a compelling reason for it. 2 E.C. Yok-ley, Zoning Law and Practice § 13-5 (4th ed.1978). In this case, we have previously determined that the decision of the Board of Supervisors that “a public need existed for additional property to be zoned industrial so that additional employment could be created and to meet the public need of a place to dispose of metal products” is “fairly debatable” and will not be disturbed on appeal. See New Albany v. Ray, 417 So.2d [550,] 552-53 [ (Miss.1982) ]. Accordingly, we hold that while the rezoning may be of greater benefit to the Martins than to others, the fact that there is a public need for the rezoning, as found by the Board of Supervisors, protects the order from the claim of illegal spot zoning.

Id. at 1097 (¶ 28) (emphasis added).

¶ 11. We disagree with the circuit court and find that granting the variance constitutes spot zoning because it is clear that the variance favors Memphis Stone to the exclusion of other parties, as it will be able to expand its existing operation to the property that it is leasing from the Seales and the Haires. We also note that in accordance with the Batesville zoning ordinance, mining is not permitted or allowed on a conditional basis in either an R-l or C-2 district. Therefore, we find this to be a classic case of spot zoning. Notwithstanding that finding, we must now determine whether Memphis Stone proved that there was a public need or a compelling reason for the variance.

¶ 12. The circuit court found that “the City had before it evidence of a public need for a good source of local aggregate and that the project would be a good asset for the local community’s economy that will likely be lost to future residential and commercial development based on the location of the property.” There is nothing in the record to support this finding. Although Memphis Stone alleges in its operations narrative that “[t]he growth of Tate County demands a good source of local aggregate” and that “this deposit will be an asset to the local economy and will likely be lost to future residential development if not managed as a resource for construction material,” nothing in the record indicates that any evidence was presented to the Planning Commission showing a benefit to any entity other than Memphis Stone if its variance request were granted. There is nothing in the record to indicate that Memphis Stone is planning to provide the City with reduced-price aggregate or that the City will have any form of preference when Memphis Stone sells the aggregate that it has collected. On the contrary, the minutes of the Planning Commission’s meeting held on May 19, 2008, reflect only a benefit to Memphis Stone if the variance request were granted:

There next came on for consideration the variance request of Memphis Stone and Gravel, to have allowed the mining of sand and gravel in the R-l, Residential and C-2, Commercial Zones. Alan Parks of Memphis Stone and Gravel gave a presentation concerning the property being leased from the Haire Family and the Seale Family located on the west side of Hwy. 85, South. If the variance is allowed, the sand and gravel will be conveyored [sic] to the existing wash plant on Hwy. 35, South for processing.

¶ 13. We acknowledge that during the hearing before the circuit court, the City’s attorney said the following:

It’s the City’s position that a variance is ideal to allow Memphis Stone and Gravel to operate this mine temporarily for a two-and-a-half[-]year period that would provide the City with a good local source of aggregate with the infrastructure growing and to encourage infrastructure projects in the city, road work, things of that nature, those were considered by the City. And having this mine and having this aggregate as a source for the City was considered.
The City — just to go back through the facts. First of all, we are talking about ... a 65-acre lease that was granted to Memphis Stone and Gravel to expand their mining operation temporarily. The mining operation itself has been granted temporarily by the County, but 18 acres of those 65 acres are just across the municipal line in the city.
The Memphis Stone and Gravel, at that point, petitioned the City. They offered the — it is in the bill of exceptions — in the operations narrative they presented to the City Planning Commission or Zoning Commission, they explained that ten tons of aggregate each year needed for construction and maintenance, and that was considered by the City. They also explained that this land would be lost — you know, that the use of these minerals in this land would be lost to further use if developed. We are talking about 18 acres that was [sic] sitting there undeveloped, unused, with no plans of development which were included in this.

¶ 14. We find that the record lacks sufficient evidence to indicate that the issue of public need was fairly debated prior to approval of the variance request. Simply providing a summary account to the circuit court of what was presented to the Planning Commission is insufficient. Therefore, we conclude that the record does not suppoi't the finding that granting the variance to Memphis Stone would be an asset to the local economy. As such, we cannot say that the Planning Commission’s decision was supported by substantial evidence.

¶ 15. The Harrisons also argue that pursuant to the Batesville city ordinance, Memphis Stone was required to prove that it would suffer a substantial hardship if the variance were not granted and that Memphis Stone failed to do so. Section 1204(5) of the Batesville city ordinance states the following about applications to vary or modify zoning:

The board of appeals shall have the following powers, and it shall be its duty: To vary or modify the application of any of the regulations or provisions of the ordinance where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this ordinance, so that the spirit of this ordinance shall be observed, public welfare and safety secured and substantial justice done.

We agree that the record lacks evidence of any “practical difficulties or unnecessary hardship” that Memphis Stone would suffer if its variance request were not granted.

¶ 16. The dissent emphasizes the fact that the granted variance was only “temporary.” Regardless of the fact that the variance was technically granted for only two and a half years, it must meet the same standards as every other variance; whether the variance was granted unconditionally or for only two months, it must still not constitute spot zoning, or Memphis Stone must show a compelling reason or public need for the variance.

¶ 17. We have already concluded that granting Memphis Stone’s request for a variance would constitute spot zoning, as Memphis Stone will receive a greater benefit than any other person or entity and that Memphis Stone failed to show that the issue of public need was fairly debated by the Planning Commission before it voted to approve the variance request. Furthermore, Memphis Stone did not prove that it would suffer difficulties or hardship without the variance. Therefore, we reverse and render the judgment of the circuit court.

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

KING, C.J., LEE, P.J., GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, P.J., AND BARNES, J.

CARLTON, J.,

dissenting:

¶ 19. I respectfully dissent, applying to our deferential standard of review. I submit that our standard of review requires affirmance of the Panola County Circuit Court’s decision, which affirmed the decision of the Board of Alderman of the City of Batesville.

¶ 20. We review the grant of a variance by a municipal board under the same standard of review that we review an administrative agency’s adjudicative decision. Hall v. City of Ridgeland, 37 So.3d 25, 33 (¶ 36) (Miss.2010). In compliance with this limited standard of review, a decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence, was arbitrary and capricious, was beyond agency scope or power, or violated the constitutional or statutory rights of an aggrieved party. Uniform Rule of Circuit and County Court 5.03 sets forth this standard of review as does our jurisprudence as reflected in Hall.

¶ 21. As acknowledged by the circuit court, the information presented to the Board for consideration contained evidence of a public need for a good source of local aggregate. This information before the Board also claimed that the project constituted a good asset for the community’s economy and that the future development of that property would likely cause the City of Batesville to lose that resource. The variance approved by the City allowed the Memphis Stone & Gravel Company to operate this mine temporarily for a two- and-one-half-year period and in turn provided an asset for the City’s economy. Moreover, as argued by the City’s attorney before the circuit court, the community would receive benefit from the resource for local aggregate to encourage local infrastructure projects in the city during the two-and-one-half-year period of the temporary variance.

¶ 22. I submit that the Board exercised authority within its power and scope, and the information before the Board contained evidence supporting its decision. The Mayor and the Board of Aldermen reached the decision to grant the variance only after the planning commission voted unanimously to approve the variance request and also after a public hearing was held where opponents appeared to express their objections to the request.

¶ 23. Therefore, I must respectfully dissent.

MYERS, P.J., AND BARNES, J., JOIN THIS OPINION.

      . The original action involved the Harrisons and the Mayor and Board of Aldermen; however, Memphis Stone was allowed to intervene.

      . Batesville’s city code states that residential districts are "designed and intended to secure for the persons who reside there a comfortable, healthy, safe, and pleasant environment in which to live, sheltered from incompatible ... and disruptive activities that properly belong in nonresidential districts.” On the other hand, the C-2 district is "designed to accommodate commercial development on a scale that is less intensive than that permitted in a C-l district. A lesser intensity of development is achieved through setback, heightf,] and minimum lot-size requirements that are more restrictive than those applicable to the C-l district. The types of uses permissible in these districts are generally similar to the types permissible in a C-l district, except that additional automobile-oriented businesses (e.g. drive-in banks and restaurants[) ] not allowed in the C-l district are permissible in these districts.... The C-2 [district] thus may provide transition in some areas between a C-1 district and a residential district or may provide for a smaller[-]scale shopping center [for] primarily one (1) neighborhood or area of the city (as opposed to a regional shopping center). The dimensional restrictions in the district are also designed in appropriate areas to encourage the renovation for commercial purposes of buildings that formerly were single[-]family residences.”

      . Brassell Mine is outside of the Batesville city limits.

      . The Batesville city code defines a variance as "[a] grant of permission by the board of adjustment that authorizes the recipient to do that which, according to the strict letter of this appendix, he could not otherwise legally do.”

      . The case was initially heard by this Court, which held that the variances constituted spot zoning. The Mississippi Supreme Court subsequently granted the City of Hattiesburg’s petition for certiorari.

        . The information provided to the Board for consideration contained evidence that the community would derive a benefit from the variance.

      . This temporary variance allows the retrieval of a resource where that resource and its benefit to the community would be lost to future development of the property. I fail to find that this temporary variance constitutes spot zoning or permits reclassification of the property for a permanent use prohibited by the original zoning. I therefore find a difference in the grant of this temporary variance and the grant of a variance for a permanent prohibited use, such as a service station or quick stop grocery, that would potentially alter the character of a residential district for the long term.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Kenneth L. JACKSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00007-COA.
    Court of Appeals of Mississippi.
    May 31, 2011.
    Rehearing Denied Aug. 30, 2011.
    Certiorari Denied Nov. 3, 2011.

      W. Daniel Hinchcliff, attorney for appellant.

      Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Kenneth L. Jackson was convicted of Count I — possession of marijuana with the intent to distribute within 1,500 feet of a public park under Mississippi Code Annotated section 41-29-139 (Rev.2009), Count II — conspiracy to distribute marijuana under Mississippi Code Annotated sections 97-1-1 (Supp.2010) and 41-29-139, and Count III — possession of a firearm by a convicted felon under Mississippi Code Annotated section 97-37-5 (Supp. 2010). On appeal, he claims: (1) the search warrant for his home was issued without sufficient underlying facts; (2) he received ineffective assistance of counsel; and (3) there was insufficient evidence presented to sustain his conviction for conspiracy. We find no error and affirm.

FACTS

¶ 2. On September 17, 2008, Corey Co-wart was stopped by the Mississippi Bureau of Narcotics for a traffic violation in McComb, Mississippi. Marijuana was discovered, and Cowart told the officers that he had purchased the marijuana from a man with a ponytail named “Turk” at a certain address. Cowart led the officers to the address, and the officers observed the man with the ponytail in the yard.

¶ 3. The officers obtained a search warrant for the home. They found marijuana, a pistol, scales, and small plastic bags inside the home. Jackson and his wife, Ursula Wells, were arrested and charged with possession of marijuana with the intent to distribute and conspiracy to distribute marijuana. Jackson, who had a prior conviction for the sale of cocaine, was charged with possession of a firearm by a convicted felon.

¶4. Jackson and Wells moved to suppress the evidence seized from the home. They claimed that the allegations contained in the officer’s statement of underlying facts and circumstances did not constitute sufficient probable cause to issue the search warrant. The circuit court held a hearing on the motion to suppress.

¶ 5. Officer Billy Ray Warner testified that the following information led the officers to the home:

[We h]ad seized an amount of marijuana from a subject, Mr. Corey Cowart, during a traffic stop. During interviewing Mr. Cowart, he advised he wished to cooperate and agreed to show us the location of where he had purchased the marijuana. [Cowart g]ot in the back seat of my vehicle, and he directed us to the residence at 304 East Georgia Avenue in McComb, Pike County, Mississippi. [Cowart sjtated he had purchased the marijuana for $30 from a light-skinned, black male subject that he knew by the name of Turk. He said Turk was wearing a white t-shirt and had a ponytail. And as we approached the residence, we did see and observe several subjects in the back yard of the residence, one of which was wearing a white t-shirt and did have kind of like a braided ponytail matching the description that had been provided by Mr. Co-wart.

¶ 6. Based on this corroboration of Co-wart’s statement, Officer Warner obtained a search warrant to search the home for controlled substances. The officers found a total of 735.7 grams of marijuana in approximately twelve exhibits throughout the home — some in shoe boxes, drawers, closets, kitchen cabinets, under a mattress, on a dresser, in the kitchen, and on an end table in the living room.

¶ 7. Officer Warner testified that the man in the white t-shirt with a ponytail who Cowart had identified as Turk was not at the house when the officers returned to execute the search. However, during the search, Jackson identified himself as Turk. Jackson admitted that he and his wife owned the house and that the marijuana belonged to him.

¶ 8. Jackson and Wells argued that Co-wart was an unreliable witness because he had cooperated with the officers to avoid prosecution for his possession of marijuana. They further claimed that the confusion over who used the name Turk made the underlying facts insufficient to support the search warrant. The circuit court disagreed and found that the judge who had issued the warrant had a substantial basis to do so. The motion to suppress was denied.

¶ 9. Jackson and Wells proceeded to trial. The officers who had conducted the search testified for the State. The evidence seized during the search was also presented to the jury. Wells decided to testify on her own behalf. She stated that she worked long hours and had no knowledge of any marijuana in her home. In closing arguments, her counsel said that she should be labeled as a victim and not as a defendant in this case. Jackson chose not to testify.

¶ 10. The jury found Jackson and Wells guilty. Jackson was sentenced to thirty-five years in the custody of the Mississippi Department of Corrections (MDOC) on Count I, with twenty years to serve and fifteen years suspended with five years of post-release supervision. He was further ordered to serve ten years on Count II and ten years on Count III. All sentences were ordered to run concurrently. Jackson was also ordered to pay a $10,000 fine and $300 in restitution to the Mississippi Bureau of Narcotics.

ANALYSIS

1. Whether the search warrant was supported by sufficient underlying facts.

¶ 11. Jackson claims that the circuit court improperly denied his motion to suppress the evidence obtained during the search of his home. Specifically, he claims there was no proof that the man with the ponytail obtained the marijuana from the home. He also claims that Cowart, as a confidential informant, was so untrustworthy that the issuing judge had no credible evidence to support the search warrant.

¶ 12. “The admissibility of evidence rests within the discretion of the trial court, and reversal is appropriate only when a trial court commits an abuse of discretion resulting in prejudice to the accused.” Ross v. State, 954 So.2d 968, 992 (¶ 44) (Miss.2007) (citation omitted). “In determining whether the issuance of a search warrant is proper, an appellate court will review the trial judge’s decision to determine whether there was a substantial basis for concluding that probable cause existed. The reviewing court will overturn the trial eourt[’s decision] if there is an absence of substantial credible evidence to support the issuance of the search warrant.” Culp v. State, 933 So.2d 264, 271 (¶ 10) (Miss.2005) (citations omitted).

¶ 13. The statement of underlying facts and circumstances submitted by Officer Warner included the following:

On 09-17-2008, at approximately 1630 hours, Agent Billy Ray Warner and Agent Conner Magee conducted a traffic stop of a vehicle driven by a subject identified as Corey Cowart. During continuation of the traffic stop, Agent Warner located in Cowart’s left front pants pocket a plastic bag containing approximately 25 grams of alleged marijuana. Cowart indicated that he wished to cooperate with Agent Warner, and identified the source of the marijuana as a black male, known to Cowart as “Turk.” Cowart described “Turk” as a light-skinned black male, approximately 6'1", 150 pounds, wearing a white T-shirt and having a pony-tail. Cowart further advised that he would direct Agent Warner to the location where the marijuana was purchased. Cowart directed Agent Warner to a yellow wood-frame residence with white trim on the south side of Georgia Avenue, (304 East Georgia Avenue) McComb, Pike County, MS. Upon arriving near the residence, Co-wart advised Agent Warner that Cowart had made contact with “Turk” in the yard of the residence and then proceeded into the doorway and entered the residence where Cowart purchased the alleged marijuana from “Turk” for $30.00. As Agent Warner, Agent Ma-gee, and Cowart approached the residence, [a] gents observed a slender light-skinned black male subject wearing a white T-shirt and having and pony-tail standing in the yard of the residence, matching the description of “Turk” provided by Cowart.

¶ 14. Officers Warner and Conner Ma-gee testified at the suppression hearing. Officer Warner stated that Cowart was not a confidential informant as Jackson argues. While, it is true that he chose to cooperate with the officers because he was in possession of marijuana, the officers corroborated his statement by driving to the home and observing several people in the yard, including a man wearing a white t-shirt with a ponytail. Cowart’s identity was disclosed, and the officers had no reason to doubt his statement, which they had corroborated by their observation of the home.

¶ 15. The circuit judge examined the search warrant, the affidavit for the search warrant, the statement of underlying facts and circumstances, and the testimonies of the officers. He concluded that the issuing judge had a substantial basis to find probable cause existed. “Probable cause exists when facts and circumstances within an officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient within themselves to justify a man of average caution in the belief that a crime has been committed and that a particular person committed it.” Bailey v. State, 981 So.2d 972, 975-76 (¶ 11) (Miss.Ct.App.2007) (citation omitted). The circuit judge found that Cowart was not a confidential informant, and even so, his statements were corroborated by the marijuana he possessed, his identification of the location where he had purchased it, and his identification of the vendor.

¶ 16. On appeal, Jackson emphasizes the confusion over who used the street name “Turk.” However, the fact that the officers later learned that Jackson identified himself as Turk did nothing to refute Cowart’s exact description of the man who had sold him the marijuana, and who the officers saw standing in the yard of Jackson’s home.

¶ 17. We find that Cowart’s statement, along with the officers’ corroborations provided a substantial basis for the issuing judge to find the necessary probable cause for the search warrant. The circuit judge did not abuse his discretion by denying the motion to suppress. Therefore, this issue is without merit.

2. Whether Jackson received ineffective assistance of counsel.

¶ 18. Jackson claims that his trial counsel was ineffective because he “offered no resistance to several instances of highly prejudicial evidence.” Specifically, he contends that counsel improperly (1) failed to move for a mistrial after a hearsay statement was made to the jury before his objection was entered, (2) allowed an officer to testify that the scales and plastic bags found in the home were used to distribute the marijuana, (3) failed to stipulate that Jackson was a convicted felon to prevent the State from entering his prior sentencing order for the sale of cocaine, (4) failed to object to testimony that several individuals found at the home were arrested on unrelated outstanding warrants, and (5) made no attempt to sever the cases against Jackson and his wife.

¶ 19. To prove ineffective assistance of counsel, Jackson 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 Jackson 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, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 20. Furthermore, the merits of a claim of ineffective assistance of counsel brought on direct appeal 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). The supreme court has held:

The question presented ... is not whether trial counsel was or was not ineffective but whether the trial judge, as a matter of law, had a duty to declare a mistrial or to order a new trial, sua sponte on the basis of trial counsel’s performance. “Inadequacy of counsel” refers to representation that is so lacking in competence that the trial judge has the duty to correct it so as to prevent a mockery of justice. Parham v. State, 229 So.2d 582, 583 (Miss.1969).

Id. at 1102 (¶8). 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. at 1101 (¶ 5). Review on direct appeal of an ineffective-assistance-of-eounsel claim is confined strictly to the record. Id. at 1102 (¶6).

¶21. Jackson alleges several instances in which his counsel provided deficient representation. Yet Jackson faces a great burden to prove that such deficiencies warranted that the circuit judge declare a mistrial sua sponte. Further, our review of the record reveals that we have no reason to second guess counsel’s trial strategy.

¶ 22. As this Court held in Hancock v. State, 964 So.2d 1167, 1175 (¶ 18) (Miss.Ct.App.2007):

a strong presumption exists “that the attorney’s conduct fell within the wide range of reasonable professional assistance.” Carr v. State, 873 So.2d 991 (¶ 27) (Miss.2004). “[Counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy” and will not stand as support for an ineffective assistance of counsel claim. Id. (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)).

¶ 23. We find no obvious deficiencies that imposed a duty upon the circuit court to declare a mistrial. As such, we deny relief on this issue without prejudice so that Jackson may, if he desires to do so, present a claim of ineffective assistance of counsel in a motion for post-conviction collateral relief.

3. Whether there was sufficient evidence to support Jackson’s conviction of conspiracy.

¶ 24. Jackson also argues that there was insufficient evidence to find him guilty of conspiracy to sell marijuana with either his wife or other unknown persons. He states that there is no proof, direct or circumstantial, that he entered into a common plan to distribute marijuana.

¶ 25. When reviewing the denial of 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).

¶ 26. Mississippi Code Annotated section 97-1-1 defines conspiracy, stating:

(1) If two (2) or more persons conspire either:
(a) To commit a crime; or
(h) To accomplish any unlawful purpose, or a lawful purpose by any unlawful means; such persons, and each of them, shall be guilty of a felony and upon conviction may be punished by a fine of not more than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than five (5) years, or by both.

“The crime of conspiracy is complete upon formation of the agreement. The agreement need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts and conduct of the alleged conspirators.” Vickers v. State, 994 So.2d 200, 212 (¶ 39) (Miss.Ct.App.2008) (citation and quotation omitted). “Furthermore, the existence of a conspiracy, and a defendant’s membership in it, may be proved entirely by circumstantial evidence.” Neal v. State, 806 So.2d 1151, 1157 (¶ 14) (Miss.Ct.App.2002) (citation omitted).

¶ 27. While there was no evidence of an express agreement to sell marijuana, we find sufficient circumstantial evidence for a reasonable juror to find the elements of conspiracy beyond a reasonable doubt. The State presented evidence that Jackson and Wells lived in the home together. The officers were told that Cowart had purchased marijuana just inside the doorway of the home. A large quantity of marijuana was found in multiple locations throughout the home, including dresser drawers, closets, under mattresses, and in the kitchen. The officers testified that the home smelled strongly of marijuana. The officers found digital scales and packaging material along with the marijuana. Lastly, Jackson admitted to the officers that the marijuana belonged to him.

¶ 28. This evidence, considered in the light most favorable to the State, was legally sufficient. Accordingly, this issue has no merit.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF COUNT I, POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE WITHIN 1,500 FEET OF A PUBLIC PARK, AND SENTENCE OF THIRTY-FIVE YEARS, WITH TWENTY YEARS TO SERVE, FIFTEEN YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION; COUNT II, CONSPIRACY TO DISTRIBUTE MARIJUANA, AND SENTENCE OF TEN YEARS; AND COUNT III, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF TEN YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCES TO RUN CONCURRENTLY, AND TO PAY A $10,000 FINE AND $300 IN RESTITUTION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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


author: MAXWELL, J.,

text:
    Jay T. MAGEE, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00463-COA.
    Court of Appeals of Mississippi.
    May 31, 2011.
    Rehearing Denied Aug. 16, 2011.
    Certiorari Denied Nov. 3, 2011.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Jay Magee challenges the admission of DNA evidence at his trial for armed robbery and kidnapping. We reject his claim that the search warrant, relied on to collect a DNA swab from his mouth, only authorized a search of his jail cell and not him personally. And even if it were true that the search warrant was invalid to search Magee, we find the DNA evidence, tying him to a ski mask discovered in the woods near the crime scene, admissible under the good-faith exception to the exclusionary rule.

¶ 2. We also find the testimony of the handler of a tracking dog used to find evidence admissible based on the dog’s and handler’s training, and the verdict is not against the weight of the evidence. We therefore affirm.

FACTS

113. This case concerns the January 2, 2009 armed robbery of Sonic Drive-In in Poplarville, Mississippi. Just after closing, two armed black males, with their faces masked, approached an employee taking out the trash and forced her at gunpoint to let them into the store. After directing all employees into the cooler, the two men stole the cash drawer and a green Bank Plus deposit bag full of cash.

¶ 4. Approximately an hour before the robbery, Ricky Graham, who lived seventy-five yards away from the restaurant, called the Poplarville Police Department about a suspicious silver truck parked in front of his house. Graham told the police he had seen two black males leave the truck on foot. A responding officer found the silver truck unlocked with the keys in the ignition. He removed the keys, locked the truck, and asked Graham to call him if anyone returned for the vehicle.

¶ 5. Graham called back fifteen minutes after the robbery. He reported that the two men had returned and, finding the truck locked, fled on foot. The Poplarville Police Department also received reports of two black males running through the woods near Graham’s house.

¶ 6. Another officer, while working the Sonic crime scene, responded to a call that a man, wearing only underwear and tennis shoes, was stranded at a carwash fifty yards away. The scantily clad African American male, identified as Jay Magee, claimed he had been jumped by two men. Magee insisted the men dragged him into the woods, took his clothes, and then fled. Magee claimed he then flagged down the driver of a car on the edge of town, who dropped Magee off at the caiwash. This officer later testified that, as a wrecker towing the silver truck passed by, he heard Magee say, “That’s my truck.”

¶ 7. Officers impounded the truck, obtained a search warrant, and processed the vehicle for evidence. Police found a green Bank Plus bag with “Sonic” written in black marker and a .9 mm handgun on the back seat. They also found a Walmart employee ID with Magee’s photo and the name “Jay.”

¶ 8. A deputy with the sheriffs department, Gary Lumpkin, trained in K-9 detection, used his German Shepherd, Nix, to track a scent from the silver truck to a nearby wooded area. There, officers found clothing, including a ski mask, and cash. Deputy Lumpkin’s dog then followed a scent from the place Magee claimed he had been picked up to the same wooded area where the clothing, mask, and cash were discovered.

¶ 9. In the early hours of January 3, officers placed Magee under arrest. That same day the sheriffs department found Magee’s accomplice, Palanstea Williams, riding a bicycle on Highway 11 and also placed him under arrest.

¶ 10. A similar armed robbery had occurred at a Sonic in Picayune, Mississippi, five weeks earlier. Picayune officer Blaine Heath had recovered a red baseball cap in the woods near the Picayune crime scene. Hearing of the Poplarville arrests, Officer Heath interviewed Magee and Williams at the Poplarville Jail. After the interviews, Officer Heath obtained search warrants to collect Magee’s and Williams’s DNA. He then returned to the jail and met with Magee in an interrogation room. Officer Heath told Magee he had a search warrant for his DNA. Magee appeared eager to prove the red baseball cap found in Picayune was not his and, according to Officer Heath, did not object to providing a DNA sample. Officer Heath also took a sample from Williams. Williams’s sample linked him to the cap found in Picayune. Ma-gee’s sample connected him to the ski mask found in the woods in Poplarville near where Magee had been picked up.

¶ 11. A Pearl River County grand jury returned a four-count indictment charging Magee and Williams with armed robbery and kidnapping stemming from the Poplar-ville and Picayune Sonic robberies. Williams pled guilty prior to trial.

¶ 12. Magee moved to suppress the DNA evidence. He challenged the search warrant, arguing it authorized only the search of a place — the Picayune Jail — and not his person. The circuit court denied Magee’s motion. The circuit judge did, however, sever the two counts relating to the Picayune robbery. And trial commenced solely on the armed robbery and kidnapping counts connected with the Pop-larville case.

¶ 13. The jury found Magee guilty of both counts. After an unsuccessful post-trial motion, Magee timely appealed.

DISCUSSION

¶ 14. Magee raises three challenges on appeal: (1) the DNA evidence should have been excluded because it was obtained by an invalid search warrant; (2) the K-9 officer’s testimony about tracking Magee’s scent was unreliable and, therefore, inadmissible; and (3) the jury’s verdict is against the weight of the evidence.

I. DNA Evidence

¶ 15. The Fourth Amendment protects individuals against unjustified and improper intrusions. U.S. Const. Amend. IV. See Daniel v. State, 536 So.2d 1319, 1321-22 (Miss.1988). An intrusion into the human body for testing, such as taking a DNA swab, is a search and seizure protected by the Fourth Amendment. Daniel, 536 So.2d at 1322 (citing Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). Absent an emergency, a search warrant was required to take Magee’s mouth swab. Id, The Fourth Amendment directs that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV.

¶ 16. On appeal, Magee limits his attack on the search warrant to his claim that the DNA collected from him should have been excluded because the warrant only authorized a search of the jail and not his person. The circuit court based its decision to admit the DNA on two exceptions to the warrant requirement — (1) the good-faith exception to the exclusionary rule and (2) consent. Either of which, if proper, serve as a sufficient basis for admission. As to the consent finding, it appears Magee consented only after being advised of the search warrant. And the United States Supreme Court has held there can be no consent after the officer conducting the search has asserted he possesses a warrant. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); see Brown v. State, 358 So.2d 1004, 1005 (Miss.1978) (holding “consent must be shown to be voluntary ... and not a mere acquiescence to the claim of lawful authority”) (quoting Bumper, 391 U.S. at 548-49, 88 S.Ct. 1788); United States v. Horton, 488 F.2d 374, 380 (5th Cir.1973) (same). So we must decide whether the warrant was sufficient on its face to authorize the collection of Magee’s DNA. And, if not, whether the DNA was admissible under the good-faith exception.

A. The Sufficiency of the Warrant

¶ 17. The affidavit supporting the warrant is based on a general form utilized by various law-enforcement agencies in Mississippi. It contains existing headings and spaces for the affiant to enter relevant information supporting the requested search warrant. Under place to be searched, Officer Heath gave directions from his location to the Poplarville Jail. In the space for occupier and controller of the place to be searched, Officer Heath inserted “Jay Magee.” When identifying things to be seized, Officer Heath described “D.N.A. in any form collected.” And under facts establishing grounds for issuing a search warrant, Officer Heath typed:

On 11-26-08 ... Sonic Drive In, located at 3301 Hwy 11 North, Picayune, MS, was robbed at gun point by two black males. The black males left behind ... a red St. Louise [sic] Cardinals fitted base ball cap. DNA has been pulled from the hat for matching.
In reference to this case, two black males were arrested and charged with armed robbery of the Sonic Drive In located in Poplarville, M[S]. After I spoke with the suspects, it is believed that these black males, (Jay Magee and Palanstea Williams) have the same M.O., body language, posture, size, and shape as the armed robberies committed in Hammond, LA., Ponchatoula, LA., Sli-dell, LA., Picayune, MS., and Poplar-ville, MS.
I respectfully request to obtain D.N.A. to match to that D.N.A. recovered from the Sonic [r]obbery in Picayune, MS.

The warrant issued by the judge listed the address of the Poplarville Jail as the place to be searched. It identified Magee as controller of the place to be searched and specifically described “D.N.A. in any or all forms that can be collected” as the things to be seized. In denying Magee’s motion to suppress, the circuit judge recognized that Officer Heath had been “saddled with forms ... geared more for or geared totally to search property of premises,” and not “for searches of persons.”

¶ 18. Magee argues the resulting warrant only authorized a search of the area of the jail controlled by Magee — not Magee himself. He relies on the principle that probable cause to search a place cannot be imputed to a person who happens to be located in the same place at the time of the search. Kirkland v. State, 916 So.2d 537, 542 (¶ 17) (Miss.Ct.App.2005) (citing Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)). But both Kirkland and Ybarra are inapplicable because Officer Heath was not bootstrapping probable cause to search the jail as authority to search Magee, who happened to be in the jail. Rather, the affidavit contains independent, specific probable cause to obtain Magee’s DNA to determine whether his DNA matched the sample from the Picayune crime. From his affidavit, we find it clear that Officer Heath sought a warrant to collect Magee’s DNA, not to search a jail cell.

¶ 19. Thus, we find this particular search warrant’s description specific enough to authorize the collection of Ma-gee’s DNA in any and all forms — which included the mouth swab Officer Heath took. See Hamilton v. State, 556 So.2d 685, 689 (Miss.1990) (finding a search warrant’s description does not have to be “positively specific and definite” to be sufficient).

B. The Good-Faith Exception to the Exclusionary Rule

¶ 20. But we need not dwell on this alleged deficiency. Because even if the warrant was insufficient on its face, whether to exclude the DNA evidence from Magee’s trial is an entirely separate issue. “The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands,” but the judicially created “exclusionary rule” safeguards the Fourth Amendment by deterring violations. United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The purpose of the exclusionary rule is to deter police misconduct. Id. at 916, 104 S.Ct. 3405.

¶ 21. In Leon, the United States Supreme Court held the Fourth Amendment exclusionary rule should not be applied to bar the prosecution from using in its casein-chief evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid. Leon, 468 U.S. at 918-21, 104 S.Ct. 3405; see also Massachusetts v. Sheppard, 468 U.S. 981, 987-89, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984) (holding exclusionary rule did not apply to evidence seized during search that officers reasonably believed was authorized by a warrant later determined to be technically defective).

¶ 22. Mississippi has expressly adopted Leon’s “good-faith exception.” White v. State, 842 So.2d 565, 570-72 (¶¶ 14-20) (Miss.2003). In White, the Mississippi Supreme Court cited with approval the Fifth Circuit’s discussion of the exclusionary rule in United States v. Russell, 960 F.2d 421, 423 (5th Cir.1992). White, 842 So.2d at 571 (¶ 15). The court explained that “the exclusionary rule should not be applied to suppress evidence if the evidence was obtained by officers acting in objectively reasonable reliance on a subsequently invalidated search warrant.” Id. (quoting Russell, 960 F.2d at 423). But the exception to the exclusionary rule does not apply if:

(1) in issuing the warrant the magistrate is misled by information in the affidavit that the affiant knows is false or would have known was false except for his reckless disregard of the truth; (2) the issuing magistrate wholly abandons his judicial role; (3) the warrant is based on an affidavit so lacking in indi-cia of probable cause that official belief in its existence is entirely unreasonable; or, (4) the warrant is so facially deficient in failing to particularize the place to be searched and things to be seized that the executing officers cannot reasonably presume it to be valid.

Id.

¶23. Though we find adequate probable cause existed to search Magee for DNA, this finding is not a prerequisite to applying the good-faith exception. Instead, “the sole issue ... is whether the officerf ] reasonably believed that the search [he] conducted was authorized by a valid warrant.” Sheppard, 468 U.S. at 988, 104 S.Ct. 3424; see also Leon, 468 U.S. at 922, 104 S.Ct. 3405 (emphasizing “the officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable”); Russell, 960 F.2d at 423 (testing for lack of indicia of probable cause, not lack of probable cause, in determining whether exclusionary rule applies).

¶ 24. Typically, the “mere existence of a warrant ... suffices to prove that an officer conducted a search in good faith and justifies application of the good faith exception.” United States v. Hodge, 246 F.3d 301, 308 (3d Cir.2001) (citing Leon, 468 U.S. at 922, 104 S.Ct. 3405); see also United States v. Stearn, 597 F.3d 540, 560-61 (3d. Cir.2010) (“If an officer obtains a warrant and executes it in good faith, ‘there is no police illegality and thus nothing to deter.’ ”) (quoting Leon, 468 U.S. at 921, 104 S.Ct. 3405). We find it clear from his affidavit that Officer Heath sought a warrant to collect Magee’s DNA. And he believed the warrant authorized him to do so. Thus, we find Officer Heath acted reasonably.

¶ 25. Further, none of the four reasons for rejecting the good-faith exception are applicable. White, 842 So.2d at 571 (¶ 15). There are no allegations that Officer Heath mislead or provided false information to the judge issuing the warrant. And the judge certainly did not abandon his judicial role. The affidavit is not “lacking in indicia of probable cause.” Id. Nor is it “so facially deficient in failing to particularize the place to be searched and the things to be seized” that Officer Heath could not reasonably rely on it to swab Magee’s mouth. Id.

¶ 26. We find that, even if a deficiency existed, excluding the DNA evidence would not further the ends of the exclusionary rule. Id. at 571 (¶ 14). Therefore, the circuit court properly admitted the DNA evidence under the good-faith exception.

II. Canine Evidence

¶ 27. Magee next contests the admission of Detective Lumpkin’s testimony about his trained German Shepherd tracking a scent from both the truck and the car wash to the wooded area where the clothes and mask were found. “The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.” Byrom v. State, 863 So.2d 836, 878 (¶ 150) (Miss.2003) (quoting Parker v. State, 606 So.2d 1132, 1136 (Miss.1992)).

¶ 28. In overruling Magee’s objection to Deputy Lumpkin’s testimony, the circuit court rightly focused on the dog’s qualifications to track scents and Deputy Lump-kin’s training and certification as Nix’s handler. Byrom, 863 So.2d at 879 (¶¶ 155-56) (finding defendant’s argument that tracking dog was not qualified lacked merit because evidence showed the dog was highly qualified and his handler was well-trained and certified); see also Gavin v. State, 891 So.2d 907, 971 (Ala.Crim.App. 2003) (“For dog-tracking evidence to be admissible, the State must establish the following: the training and reliability of the dog, the qualifications of the person handling the dog, and the circumstances surrounding the tracking by the dog.”).

¶ 29. Magee attacks the canine’s reliability based on Deputy Lumpkin’s testimony that he had only used Nix in ten investigations. But Deputy Lumpkin also testified Nix had been trained by the military. And when the sheriffs department purchased Nix, both Nix and Deputy Lumpkin went through a training and certification course. Each month, Deputy Lumpkin and Nix officially train for eight hours. And on his days off, Deputy Lump-kin works with Nix for approximately three hours. Although Nix had only participated in ten actual criminal investigations, Nix regularly tracked during training.

¶ 30. Citing Hinton v. State, 175 Miss. 308, 166 So. 762, 763-64 (1936) and Harris v. State, 143 Miss. 102, 108 So. 446, 446-47 (1926), Magee argues for the first time on appeal that Nix was not qualified because there is no evidence in the record Nix is a purebred. But neither the Mississippi Supreme Court in Byrom nor we in this case find that evidence of pedigree is necessary to prove a tracking dog is qualified. See Byrom, 863 So.2d at 878 (¶¶ 153-54) (distinguishing Hinton and Hams).

¶ 31. The circuit court allowed Magee’s counsel to cross-examine Deputy Lumpkin about Nix’s ability to track scents and raise questions before the jury regarding Nix’s reliability. United States v. Boxley, 373 F.3d 759, 762 (6th Cir.2004) (holding, “after it is shown that the dog is certified, all other evidence relating to his accuracy goes only to the credibility of the testimony, not to the dog’s qualifications”). We find, based on the evidence supporting the dog’s and Deputy Lumpkin’s qualifications, the circuit court did not abuse its discretion in permitting Deputy Lumpkin to testify.

III. Weight of the Evidence

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

¶ 33. Magee relies on conflicting testimony concerning the number of men who returned to the silver truck, the number of bank bags found in the back seat, and whether the gunmen were wearing bandanas or ski masks. The jury is responsible for resolving conflicts in the testimony. Moore v. State, 969 So.2d 153, 156 (¶ 11) (Miss.Ct.App.2007) (quoting Stephens v. State, 911 So.2d 424, 436 (¶ 38) (Miss.2005)). On review, it is not for us to determine “what testimony the jury believed or disbelieved in arriving at its verdict.” Id.

¶ 34. Magee also argues that, because this is a circumstantial-evidence case, his conviction can only stand if the evidence excluded all reasonable hypotheses consistent with his innocence, relying on Johnson v. State, 999 So.2d 360, 367 (¶ 29) (Miss.2008). Johnson requires is that the jury be instructed to exclude every reasonable hypothesis other than guilt, as they were here. Id. Magee presented his defense theory — that he was mugged by two men and stripped of his clothes, which the jury obviously rejected.

¶ 35. Considering the evidence in the light most favorable to the verdict, it showed two men left Magee’s truck parked in front of Graham’s house an hour before the robbery. Two masked men robbed the Sonic at gunpoint and forced employees into the cooler. The two men then returned to the truck to find it locked, and then they fled into the woods. Police located discarded clothing, including a ski mask, in the woods, and found Magee unclothed at a nearby car wash. Police discovered in the truck a green bank bag with “Sonic” written on it, Magee’s ID, and a pistol. And the police linked the ski mask to Magee’s DNA profile.

¶ 36. The evidence of Magee’s guilt is overwhelming. Therefore, we affirm his armed robbery and kidnapping convictions.

¶ 37. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ARMED ROBBERY, AND SENTENCE OF FORTY YEARS, WITH TEN YEARS SUSPENDED, AND COUNT II, KIDNAPPING, AND SENTENCE OF THIRTY YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

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

      . The record before us does not indicate the offense(s) to which Williams pled guilty.

      . Magee mentions in his brief that “inconse-quently” the search warrant was not properly returned because the officer’s signature was missing from the inventory page. During the suppression hearing, Officer Heath testified he was the one who made the return. The circuit judge ruled the omission of the signature on the officer’s return did not preclude the application of the good-faith exception. On appeal, Magee does not argue this ruling was error, and we agree with his assessment that this technical deficiency was inconsequential under these facts.


text:
    Calvin LANGSTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00280-COA.
    Court of Appeals of Mississippi.
    May 31, 2011.
    Rehearing Denied Aug. 23, 2011.
    Certiorari Denied Nov. 3, 2011.
    Calvin Langston, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Calvin Langston appeals the Yazoo County Circuit Court’s dismissal of his motion for post-conviction collateral relief. We find no error and affirm.

FACTS

¶ 2. On September 18, 2006, a Yazoo County Grand Jury indicted Langston and Corey Hazelton for the crime of armed robbery, under Mississippi Code Annotated section 97-3-79 (Rev.2006). On April 12, 2007, Hazelton pleaded guilty as an accessory after the fact to armed robbery, under Mississippi Code Annotated section 97-1-5 (Rev.2006). Hazelton was sentenced to five years in the custody of the Mississippi Department of Corrections (MDOC) with all five years suspended and five years of supervised probation.

¶ 3. On November 27, 2007, Langston pleaded guilty to armed robbery. He was sentenced to ten years in the custody of the MDOC without eligibility for earned-time release or parole.

¶ 4. On June 25, 2009, Langston filed a motion for post-conviction collateral relief (PCR). The circuit court dismissed the PCR motion without an evidentiary hearing. It is from this judgment that Lang-ston appeals.

STANDARD OF REVIEW

¶ 5. A circuit court’s dismissal of a PCR motion 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

¶ 6. Langston’s sole argument is that he was denied due process when he received a tougher sentence than Hazelton. Langston claims that Hazelton was equally culpable in the commission of the armed robbery. Yet Langston complains that Hazelton was allowed to plead guilty to the lesser crime, accessory after the fact, and received only five years suspended and five years of supervised probation.

¶ 7. Langston cites two Florida Supreme Court cases as authority. In both of those cases, the Florida court vacated the defendants’ death sentences because equally culpable co-defendants had received only life imprisonment. See Scott v. Dugger, 604 So.2d 465 (Fla.1992); Slater v. State, 316 So.2d 539 (Fla.1975). These cases are neither binding authority, nor are they persuasive.

¶ 8. Mississippi law does not require that co-defendants receive similar sentences. In Booker v. State, 840 So.2d 801, 805 (¶ 10) (Miss.Ct.App.2003), this Court held:

There are no statutes or case law stating that a defendant must receive a sentence proportionate to a sentence imposed on an accomplice.... [Sjentences between co-defendants are, often times, different. Also, the recommendations in regards to sentencing come from the district attorney’s office, and each judge makes an independent determination as to what the sentence should be. The duty of this Court is not to determine the working mind of the sentencing judge or to determine the reasons why the judge gave that sentence to [the defendant].

This reasoning was reaffirmed in Young v. State, 919 So.2d 1047, 1049-50 (¶¶6-7) (Miss.Ct.App.2005).

¶ 9. Prosecutors have broad discretion to decide which charge or charges to bring against a criminal defendant. Watts v. State, 717 So.2d 314, 320 (¶ 14) (Miss.1998). In this case, the prosecutor made the decision to reduce the charge against Hazelton to accessory after the fact. The record does not show why the prosecutor made that decision, nor does the record give this Court any reason to find that the prosecutor abused his discretion. Indeed, such decision was within the prosecutor’s authority.

¶ 10. Accordingly, we find no merit to this issue. The circuit court did not err by dismissing Langston’s motion without an evidentiary hearing. See Miss.Code Ann. § 99-39-11(2) (Supp.2010).

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

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


author: CARLTON, J.,

text:
    Leon FELIX Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00750-COA.
    Court of Appeals of Mississippi.
    June 21, 2011.
    Rehearing Denied Aug. 30, 2011.
    Certiorari Denied Nov. 3, 2011.

      Leon Felix Jr., appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. On April 29, 2008, Leon Felix Jr. pleaded guilty in the Circuit Court of Warren County to the statutory rape of a twelve-year-old girl. Felix was sentenced to ten years in the custody of the Mississippi Department of Corrections. Due to his age and the wishes of the victim’s family, the circuit court reluctantly suspended all ten years of the sentence and placed Felix on three years’ supervised probation. The sentence was pronounced on May 30, 2008. ' Four days later, Felix was arrested for cocaine possession. After a hearing, the circuit court revoked the suspended sentence and ordered Felix serve eight years, with five years’ post-release supervision to follow. On April 12, 2010, Felix filed a motion for post-conviction relief (PCR), seeking to set aside the revocation of his suspended sentence. The circuit court found the PCR motion without merit and dismissed it without a hearing. Felix appeals from that judgment.

STANDARD OF REVIEW

¶ 2. A circuit court may summarily dismiss a PCR motion “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2010). “On appeal, this Court will affirm the summary dismissal of a PCR [motion] if the [movant] has failed to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right.” Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009) (citation and quotations omitted). We review the dismissal of a PCR motion for an abuse of discretion, and we will not disturb the trial court’s factual findings unless they are shown to be clearly erroneous. Burrough v. State, 9 So.3d 368, 371 (¶ 6) (Miss.2009); Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). On the other hand, we will reverse and remand for a hearing if the movant has “alleged facts which require further inquiry in the expanded setting of an evidentiary hearing.” Mitchener v. State, 964 So.2d 1188, 1192-93 (¶ 10) (Miss.Ct.App.2007) (quoting Jones v. State, 949 So.2d 872, 873 (¶3) (Miss.Ct.App.2007)).

DISCUSSION

1. Due Process; Preliminary Revocation Hearing

¶ 3. Felix’s first contention is that the circuit court denied him due process because it did not conduct a preliminary hearing prior to the final revocation hearing.

¶ 4. The Mississippi Supreme Court has recently addressed and rejected a similar claim in Presley v. State, 48 So.3d 526, 529 (¶ 11) (Miss.2010). Like the appellant in Presley, Felix is correct that the trial court should have given him a preliminary hearing after his initial detention or secured an express waiver. There is no evidence in the record that such a hearing was conducted. Nonetheless, Felix is not entitled to have his revocation set aside.

¶ 5. First, Felix failed to raise the issue of a preliminary hearing at his final revocation hearing. Instead, when the circuit court asked, Felix stated he was ready to proceed with the hearing. “[A] defendant is procedurally barred from arguing that he was denied the right to a preliminary hearing where the defendant failed to raise the issue at his formal revocation hearing.” Id. at 528 (¶ 9).

¶ 6. Notwithstanding the procedural bar, Felix’s claims are also without merit. The preliminary hearing should have been held shortly after the arrest to determine whether confinement should continue. Id. at 529 (¶ 13). The issue at the hearing would have been whether probable cause exists to believe that a violation has been committed. Id. at (¶ 11). Thus, where a final revocation hearing had been held and the probation revoked, with all due process otherwise afforded, the failure to grant a preliminary hearing is subject to a harmless-error analysis. Id. at 529-30 (¶ 13). To succeed, Felix must show prejudice from the failure to conduct a preliminary hearing. That prejudice must “extend[] beyond the issue of the State’s right to continue his confinement in the interim.” Id. at 530 (¶ 13). Felix has not attempted to make such a showing in this case, and on our review of the record, we can find no resulting prejudice. Thus, the error is harmless, and we will not set aside Felix’s revocation. In addition being procedurally barred, this issue is also without merit.

2. Revocation

¶ 7. Felix also attacks the circuit court’s decision to revoke his probation. He contends that there was insufficient evidence to support the revocation and that he was never informed of the terms and conditions of his probation.

¶ 8. Felix first points out he was not convicted of the cocaine-possession charge; it appears to have been remanded to the file after his probation was revoked. However, conviction is not required for revocation of probation. Revocation requires only a showing that the defendant “more likely than not” violated the terms of probation. Metcalf v. State, 904 So.2d 1222, 1225 (¶ 10) (Miss.Ct.App.2004).

¶ 9. Felix next contends that there was insufficient evidence to support the revocation. We find this assertion meritless. Officer Dave McCloud of the Vicksburg Police Department testified at the hearing. He stated that during a traffic stop, he found a bag containing what was later determined to be 0.2 gram of cocaine on the ground near Felix’s car door. Felix subsequently admitted to the officer that he had thrown the bag from the vehicle, claiming that it had been given to him by a passenger. In his testimony, Felix never directly addressed whether he had possessed cocaine. Instead, Felix stated— apparently offering this in mitigation— that he was addicted to marijuana and that his judgment had been impaired by its use.

¶ 10. Felix’s final argument concerns the short period of time (four days) between his sentencing and his arrest for the violation of his probation. Felix points out that his probation officer admitted that she had not spoken with him to explain the probation conditions. Felix testified that he had attempted to comply with the court’s instruction at the sentencing that he should meet with the probation officer immediately, but the line had been too long to do so before the probation office closed.

¶ 11. Felix is correct that a defendant must be informed of the terms of a suspended sentence before it can be revoked. Artis v. State, 643 So.2d 533, 538 (Miss.1994). However, we find Felix’s case distinguishable for two reasons. First, Felix was instructed to report to his probation officer. Having failed to do so, he cannot now complain that he did not know the terms of his probation. Second, during the sentencing hearing, the circuit judge warned Felix that his suspended sentence would be revoked if he used marijuana or any other illegal drug. While Felix’s suspended sentence was revoked for the possession of cocaine rather than its use per se, Felix can hardly claim to have not known that revocation would result from cocaine possession. In fact, Officer McCloud testified that during the traffic stop, Felix appeared to be very nervous and repeatedly muttered, “I can’t go back to jail.”

¶ 12. We find no error in the circuit court’s revocation of Felix’s suspended sentence. This issue is without merit.

1113. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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

      . The passenger fled after the drugs were found. Officer McCloud was alone and could not pursue the passenger, so the man escaped. Felix stated that he knew the man only as "D.P.,” and the authorities had been unable to locate him.


author: LEE, C.J.,

text:
    Veshone MALONE a/k/a Veshon Malone, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00675-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2011.

      Omar Lamont Nelson, Jackson, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    . Before LEE, C.J., BARNES and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. A jury in the Humphreys County Circuit Court convicted Veshone Malone of Count I, conspiracy to commit robbery, and Count II, capital murder. On Count I, Malone was sentenced to serve five years in the custody of the Mississippi Department of Corrections (MDOC) and ordered to pay a $5,000 fíne. On Count II, Malone was sentenced to life without the possibility of parole and ordered to pay a $10,000 fíne. The sentence imposed in Count I was ordered to run consecutively to the sentence imposed in Count II.

¶ 2. Malone filed post-trial motions, which were denied. Malone now appeals, asserting the following issues: (1) the trial court failed to establish the existence of a conspiracy; (2) the trial court erred in allowing the introduction of autopsy and crime-scene photographs into evidence; (3) the trial court erred in allowing the jury to hear testimony of Mark Winstead and Robert Geoghegan; (4) the trial court erred in striking language from two jury instructions; (5) the jury’s verdict is contrary to the overwhelming weight of the evidence; and (6) cumulative error requires reversal. Finding no error, we affirm.

FACTS

¶ 3. In the early morning hours of May 14, 2007, Lee Andrew Smith shot and killed Clinton Chinn during a robbery at Chinn’s home in Silver City, Mississippi. Quincy Johnson was also present when Chinn was shot. Johnson was also armed with a gun, which he testified was given to him by Malone. Both Smith and Johnson testified that it was Malone’s plan to rob Chinn. Chinn owned a club located approximately one hundred yards from his home. Malone thought Chinn would have money after closing the club. However, no money was found on Chinn.

¶4. Malone provided transportation, by dropping Smith and Johnson off near Chinn’s house and picking the two up after the robbery. Malone also supplied Smith and Johnson with a gun, a bat, a change of clothes for Smith, and directions to Chinn’s house.

¶ 5. Johnson stole Chinn’s checkbook, and after using a check to pay a bill, Johnson became a suspect in Chinn’s murder. Johnson implicated Smith and Malone. Both Smith and Johnson pleaded guilty to murder and received life sentences. Other pertinent facts will be discussed as necessary.

DISCUSSION

I. CONSPIRACY

¶ 6. In his first issue on appeal, Malone argues that the trial court erred in failing to establish the existence of a conspiracy prior to the testimony of Smith and Johnson. A statement is not hearsay if it is made “by a co-conspirator of a party during the course and in furtherance of the conspiracy.” M.R.E. 801(d)(2)(E). “However, before the statement of an alleged co-conspirator can be admitted as evidence, the trial court must determine that there is preliminary evidence of a conspiracy.” Sullivan v. State, 749 So.2d 983, 988 (¶ 5) (Miss.1999). The record indicates that the trial court halted Smith’s testimony in order to determine whether there was evidence of a conspiracy before proceeding with any hearsay testimony regarding the conspiracy. Enunciating the facts which we have previously set forth in this opinion, the trial court found that there was evidence of a conspiracy.

¶ 7. Sitting as an appellate court, we review the record to determine whether a conspiracy has been established. Id. We find there was enough evidence from the testimonies of Smith and Johnson that a conspiracy existed. This issue is without merit.

II. AUTOPSY AND CRIME-SCENE PHOTOGRAPHS

¶8. In his next issue on appeal, Malone argues that the trial court erred in allowing the introduction of autopsy and crime-scene photographs. Malone contends that these photographs were irrelevant and highly prejudicial. The photographs introduced into evidence include photographs of Chinn’s body at the crime scene and three photographs of Chinn taken during the autopsy. The trial court admitted the photographs, finding that the probative value was not outweighed by any prejudicial effect.

¶ 9. We apply the familiar abuse-of-discretion standard when reviewing whether a trial court erred in admitting photographs. Dampier v. State, 973 So.2d 221, 230 (¶ 25) (Miss.2008). “A photograph, even if gruesome, grisly, unpleasant, or even inflammatory, may still be admissible if it has probative value and its introduction into evidence serves a meaningful evidentiary purpose.” Noe v. State, 616 So.2d 298, 303 (Miss.1993). Photographs have evidentiary value when they: “(1) aid in describing the circumstances of the killing; (2) describe the location of the body and cause of death; (3) supplement or [clarify] witness testimony.” McIntosh v. State, 917 So.2d 78, 84 (¶ 13) (Miss.2005) (quoting Spann v. State, 771 So.2d 883, 895 (¶ 31) (Miss.2000)).

¶ 10. We cannot find that the trial court abused its discretion in allowing the photographs to be admitted. The photographs clarified the witnesses’ testimonies; aided in describing the circumstances of Chinn’s death; and showed the location of the body, the cause of death, and the location of the bullet wound. This issue is without merit.

III. TESTIMONIES OF WINSTEAD AND GEOGHEGAN

¶ 11. Malone’s next issue concerns the testimonies of Winstead and Geoghegan. Winstead, a radio-frequency performance manager for Cellular South, testified about maps showing the location of cell phone towers in the area and the site coverage areas. Geoghegan worked for Cellular South’s parent company, Telapex, Inc., as subpoena-compliance director; he testified in his capacity as the custodian of the cell phone records. These records showed the dates and times calls were made and the numbers of the calls that were made. Geoghegan explained the cell phone records, including what each column on the record represented.

¶ 12. Malone objected to their testimonies, contending that both witnesses’ testimonies contained information that was only appropriate for an expert witness. Neither witness was designated as an expert by the State. The State responded that the witnesses were going to discuss information which was kept in the normal course of business, including tower locations and cell phone records. The trial court overruled the objection, finding that the testimony would not require an expert to explain. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Wade v. State, 583 So.2d 965, 967 (Miss.1991).

¶ 13. According to Rule 701 of the Mississippi Rules of Evidence, opinion testimony by a lay witness must be “(a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 [testimony by experts].” Neither Winstead nor Geoghegan’s testimony was so complex or technical as to render it expert testimony. Both Winstead and Geoghegan testified as to records prepared in the course of regularly conducted business activity. Neither was testifying as an expert witness, instead they testified as a custodian of these particular records pursuant to Rule 808(6) of the Mississippi Rules of Evidence. Rule 803(6) provides that either the custodian of records, or any other qualified witness, may testify about business records and records of regularly conducted activity.

¶ 14. The State submitted a map from Cellular South containing cell-tower locations and coverage areas. Winstead simply explained where these cell-tower locations and coverage areas were located on the map. Winstead did testify as to what he thought was the distance between each cell tower, but he stated that he was unsure of the exact distance. Geoghegan testified as to the specific information provided in the cell phone records generated by Cellular South, including subscriber information, cell-tower usage, and detailed call information. Geoghegan’s testimony concerns information found only in the cell phone records. This issue is without merit.

IV. JURY INSTRUCTIONS

¶ 15. In his next issue on appeal, Malone argues that it was error for the trial court to remove the phrase, “even though it may cause a mistrial,” from jury instructions D-4 and D-5. Malone contends that these instructions were taken from model jury instructions; thus, the phrase should not have been removed. The last sentence from both proposed jury instructions D^i and D-5 stated: “If there is any juror who is not convinced beyond a reasonable doubt of the defendant’s guilt, it is your duty to vote ‘Not Guilty,’ even though it may cause a mistrial of this case.” The State noted that it had some objections to the language of these instructions, but Malone responded that they followed the model jury instructions. After an off-the-record discussion about all the proposed jury instructions, the trial court struck the last phrase from D-4 and D-5.

¶ 16. “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Johnson v. State, 823 So.2d 582, 584 (¶ 4) (Miss.Ct.App.2002). In Williams v. State, 5 So.3d 496, 509-10 (¶ 45) (Miss.Ct.App.2008), this Court found that this same phrase, “even though it may cause a mistrial in this case,” was unnecessary since the jurors had been properly instructed otherwise. After reviewing the instructions given to the jury as a whole, it is clear that the instructions fairly state the law and create no injustice. This issue is without merit.

V. OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 17. In his fifth issue on appeal, Malone argues that the verdict is contrary to the overwhelming weight of the evidence. “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 v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). Furthermore, it is well-settled law that the jury determines the credibility of the witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003).

¶ 18. Upon our review of the record, we cannot find that the verdict is contrary to the overwhelming weight of the evidence. There was testimony from Malone’s co-conspirators that it was Malone’s idea to rob Chinn and that Malone provided transportation, a gun, a bat, clothes, and information about Chinn’s house. Malone’s cell phone records indicate that he was not with his girlfriend, Yakimba Claiborne, in Tchula, Mississippi, at the time Chinn was shot and killed. Rather, the calls made from Malone’s cell number originated from cell towers near Chinn’s home in Silver City. Furthermore, Claiborne testified that Malone asked her to provide him with an alibi for the night of Chinn’s murder. Claiborne testified that she told the investigating officers that she never saw Malone that night. Lennet-ta Nelson testified that Malone called her and asked her to provide an alibi for Johnson for the night of Chinn’s murder. Nelson testified that she refused Malone’s request.

¶ 19. The jury found the witnesses for the State more credible and resolved any conflicts in favor of the State. This issue is without merit.

VI. CUMULATIVE ERROR

¶ 20. In his final issue on appeal, Malone argues that the cumulative error deprived him of his fundamental right to a fair trial. Finding that each of Malone’s arguments is without merit, we consequently do not find any cumulative error that would necessitate a reversal. This issue is without merit.

¶ 21. THE JUDGMENT OF THE HUMPHREYS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, CONSPIRACY TO COMMIT ROBBERY, AND SENTENCE OF FIVE YEARS AND TO PAY A $5,000 FINE, AND COUNT II, CAPITAL MURDER, AND SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE AND TO PAY A $10,000 FINE, WITH THE SENTENCE IN COUNT I TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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