author: LEE, C.J., CARLTON, J.,

text:
    Joseph W. BLACKSTON, M.D., J.D., Appellant v. Christopher B. EPPS, individually and in his Official Capacity, Kentrell M. Liddell, individually and in her Official Capacity, and Mississippi Department of Corrections, Appellees.
    No. 2009-CA-00824-COA.
    Court of Appeals of Mississippi.
    June 28, 2011.
    Rehearing Denied May 29, 2012.
    Certiorari Denied Aug. 28, 2012.
    Robert Nicholas Norris, Louis H. Watson Jr., Jackson, attorneys for appellant.
    James T. Metz, Michael Edwin D’Antonio Jr., attorneys for appellees.
   PROCEDURAL HISTORY

LEE, C.J.,

for the Court:

¶ 1. Dr. Joseph W. Blackston filed a complaint in the Hinds County Circuit Court against Christopher Epps, Dr. Kent-rell M. Liddell, and the Mississippi Department of Corrections (collectively the MDOC). The complaint alleged tortious interference with business and/or contractual relations, intentional and/or negligent infliction of emotional distress, and defamation. The MDOC filed a motion to dismiss and/or summary judgment arguing that the MDOC was not liable pursuant to the Mississippi Tort Claims Act (MTCA). See Miss.Code Ann. §§ 11^46-1 to 11-46-28 (Rev.2002).

¶ 2. After hearing arguments, the trial court granted summary judgment in favor of the MDOC on the contractual and emotional-distress claims. The trial court noted that Dr. Blackston had conceded the defamation claim and proceeded to dismiss that particular claim with prejudice. Dr. Blackston now appeals, asserting that summary judgment was improperly granted.

FACTS

¶ 8. Dr. Blackston began working with the MDOC in July 2003 as Director of Medical Compliance overseeing a contract between the MDOC and Correctional Medical Services, Inc. (CMS). In the summer of 2004, CMS offered Dr. Blackston a job. Dr. Blackston contends that he informed Epps of this job offer. However, Dr. Lid-dell was ultimately offered the job with CMS. After several weeks working for CMS, Dr. Liddell was offered and accepted Dr. Blackston’s job with the MDOC. On September 1, 2004, Dr. Blackston became the medical director at Central Mississippi Correctional Facility (CMCF).

¶ 4. In early 2006, the MDOC contracted with another company, Wexford, rather than CMS to provide medical services. Much of the current MDOC staff became concerned about retaining their jobs. Around this time, Dr. Blackston states that he had a scheduling conflict with an upcoming trial. Dr. Blackston contends that Dr. Liddell ordered him to cooperate “or else.” Shortly thereafter, Dr. Black-ston states that he was informed that Wex-ford had declined to offer him a position. According to Dr. Blackston, a representative from Wexford informed him that Dr. Liddell had instructed Wexford to hire a minority physician for the position. Dr. Blackston is a white male. In August 2006, Dr. Blackston began working for Central Mississippi Medical Center in the emergency room.

¶ 5. Dr. Blackston’s complaint details his problems with how Epps and Dr. Liddell purportedly mismanaged the prison health system. Dr. Blackston contends that he has received numerous complaints from nursing and other staff about the mistreatment they had received from Epps and Dr. Liddell. However, most of these complaints have no direct bearing on Dr. Blackston’s claim other than to portray Epps and Liddell in a negative light.

STANDARD OF REVIEW

¶ 6. In reviewing a trial court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., Inc., 716 So.2d 543, 547 (¶ 13) (Miss.1998). Summary judgment “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). This Court will consider all of the evidence before the lower court in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

DISCUSSION

¶ 7. In his only issue on appeal, Dr. Blackston argues that the trial court erred in granting summary judgment in favor of the MDOC. Specifically, Dr. Blackston contends that Dr. Liddell tortiously interfered with his business relationship with Wexford by requiring Wexford to hire a minority physician for the position of medical director.

¶ 8. Pursuant to the MTCA, governmental entities and their employees acting within the course and scope of their duties enjoy certain exemptions and protections. An employee is not liable personally as long as their conduct falls within the course and scope of employment and does not otherwise constitute fraud, malice, libel, slander, defamation, or a crime. Miss. Code Ann. § 11-46-7(2) (Rev.2002). The MTCA also provides immunity for a claim based on the exercise or performance of a discretionary function, “whether or not the discretion be abused.” Miss.Code Ann. § 11 — 46—9(l)(d) (Supp.2010). Furthermore, Mississippi Code Annotated section 11 — 46-9(l)(g) (Supp.2010) considers the hiring of personnel a discretionary function.

¶ 9. Although Dr. Blackston contends that Dr. Liddell required Wexford to hire a minority physician, he has failed to produce any probative evidence through affidavits or otherwise to support his allegations. Unsubstantiated allegations are not enough to create a genuine issue of material fact. Progressive Gulf Ins. Co. v. Dickerson and Bowen, Inc., 965 So.2d 1050, 1053 (¶ 8) (Miss.2007). This issue is without merit.

If 10. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

CARLTON, J.,

dissenting:

¶ 11. I respectfully dissent from the majority’s opinion. The majority provides that this case deals with a state employee’s discretionary function of hiring personnel. This case also addresses, however, the potential personal liability of state employees, Christopher Epps and Dr. Kentrell M. Liddell, for the claims against them individually for alleged tortious acts outside the scope of their employment. I disagree with the trial court’s findings, and I respectfully submit that Dr. Joseph W. Blackston’s complaint raised a question of material fact regarding whether the named state employees, Epps and Dr. Liddell, acted outside the course and scope of their employment thereby subjecting themselves to personal liability for the claims against them individually for the alleged tortious act of interfering with Dr. Black-ston’s employment with a private contractor.

¶ 12. An official does not have immunity for actions outside his or her authority, see 63C Am. Jur. 2d Public Officers and Employees § 301 (2009) (citations omitted), or if acting outside and beyond the scope of his or her duties. Id. (citing Jones v. Kearns, 120 N.CApp. 301, 462 S.E.2d 245 (1995)). “In this regard, when a public official goes entirely beyond the scope of the official’s authority and does an act that is not permitted at all by official duty, the official is not acting in an official capacity and has no more immunity than a private citizen. Such an officer may thereby become amenable to personal liability in a civil suit.” Id. (internal citations omitted). As such, an employee can be held liable for tortious interference with a contract.

¶ 13. Therefore, in my view, summary judgment was improperly granted as to the claims against Epps and Dr. Liddell, individually, for alleged tortious interference with Dr. Blackston’s private employment. With respect to the alternative motion not addressed by the trial court, I submit that Dr. Blackston states a claim upon which relief could be granted sufficient to survive a Mississippi Rule of Civil Procedure 12(b)(6) challenge. See M.R.C.P. 8(e).

¶ 14. A review of the record shows that Dr. Blackston filed a complaint on May 25, 2007, naming Epps, Dr. Liddell, and the Mississippi Department of Corrections (collectively the MDOC) as the defendants in the action. The record shows that the MDOC then filed a motion, entitled “Motion to Dismiss and/or for Summary Judgment,” on November 19, 2007, without any exhibits or evidentiary matters attached to consider therewith. The record further reveals that a year later, on November 13, 2008, the trial judge issued an opinion stating that he utilized the standard of review applicable for summary-judgment motions in evaluating the dismissal of the case and provided that he considered the motion as one for summary judgment since evidentiary matters outside the pleadings were considered. However, no evidentia-ry matters outside the pleadings were contained in the record. I submit that the trial judge erred by treating the MDOC’s motion as one for summary judgment because the Mississippi Supreme Court has held that the respondents to a converted summary-judgment motion must be given ten days’ proper notice once a motion to dismiss is converted to a motion for summary judgment, and the MDOC was not provided such notice. See Delta MK, LLC v. Miss. Transp. Comm’n, 57 So.3d 1284 (Miss.2011); State v. Bayer Corp., 32 So.3d 496, 503-04 (¶¶ 24-25) (Miss.2010); Sullivan v. Tullos, 19 So.3d 1271, 1274-76 (¶¶ 14-19) (Miss.2009). Moreover, since the record contains no evidentiary matters outside the pleadings, no notice was provided by the trial court as to what matters outside the record were considered by the trial judge.

¶ 15. As stated, our review of the case reflects that neither the trial judge’s opinion nor the record show that any evidentia-ry matters outside the pleadings were submitted to or considered by the trial court in ruling upon the MDOC’s motion. With respect to the standard of review applied by the trial judge, I, therefore, concur with Dr. Blackston’s contention that the trial judge erred in treating the MDOC’s motion as one for summary judgment, and I submit that the trial judge should have treated the motion as a motion to dismiss pursuant to Mississippi Rule of Civil Procedure 12(b)(6).

¶ 16. Moreover, I note that in the trial judge’s opinion, he finds Epps and Dr. Liddell were immune from personal liability after finding that their actions fell within the course and scope of their employment. However, the record reveals that no evidentiary matters were presented by either party upon which such fact could be determined by the trial judge, and a review of the pleadings fail to support such a finding. As such, I again find that the pleadings reflect a genuine issue of material fact regarding the issue of whether Epps and Dr. Liddell acted outside the scope of employment in tortiously interfering with a private contractor’s employment decisions by imposing a race requirement.

¶ 17. With respect to an application of a summary-judgment standard of review to the pleadings in this case, the record fails to refute Dr. Blackston’s allegations as to the tortious interference of his employment with Wexford, a private contractor, and the record fails to show agreement as to the facts relevant to Dr. Blackston’s claim of tortious interference with his employment with Wexford. Nothing in the record shows that Epps or Dr. Liddell possessed the authority, by contract or otherwise, to direct a private contractor as to which employees to hire to fulfill the requirements of the medical-services contract, and nothing in the record shows Epps and Dr. Liddell possessed the authority to direct a private contractor to hire medical providers possessing demographic prerequisites to fulfill the requirements of the contract. Certainly, the MDOC possessed the authority to engage in personnel decisions concerning the state employment to fill state MDOC positions under their authority within their agency and discretionary state government immunity would apply thereto; however, such authority fails to extend outside the scope of state employment to directing private contractors regarding who to hire to meet the contract requirements unless the contract specifies that such authority exists. As to this issue, I, therefore, submit that the trial judge erred in dismissing the claims of alleged discriminatory tortious interference with the private employment of Dr. Blackston utilizing summary judgment since a question of material fact clearly existed as to whether the conduct occurred and, also, whether such conduct fell outside the scope of employment and thereby lacked the immunity enjoyed by discretionary decisions within the scope of state employment. See Anderson v. Alps Auto., Inc., 51 So.3d 929, 931 (¶ 11) (Miss.2010) (“A motion for summary judgment is to be granted ‘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.’ ”) (citing M.R.C.P. 56(c)).

¶ 18. Furthermore, I find that the trial court should have reviewed the MDOC’s motion to dismiss and/or for summary judgment as a motion to dismiss pursuant to Mississippi Rule of Civil Procedure 12(b)(6). I further find that, after applying the Rule 12(b)(6) standard, the pleadings were sufficient to move forward in the proceedings. See M.R.C.P. 8(d) (Aver-ments in the complaint, requiring a responsive pleading, are admitted when not denied in the responsive pleading.). The majority contends that Dr. Blackston failed to produce any probative evidence through affidavits or otherwise to support his allegations. However, Rule 8(e)(1) recognizes that Mississippi is a notice pleading jurisdiction, and no technical forms of pleading are required. See Bluewater Logistics, LLC v. Williford, 55 So.3d 148, 158 (¶ 85) (Miss.2011) (finding that Mississippi has been a “notice pleading” state since January 1, 1982, and under Rule 8, a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]”). Further, Rule 8(e)(2) recognizes that a party may state as many separate claims as he has, regardless of consistency. Therefore, the assertions of various claims by Dr. Black-ston, and any lack of consistency or technical forms therein, are of no consequence since Dr. Blackston stated a claim upon which relief could be granted against Epps and Dr. Liddell for alleged tortious acts falling outside their scope of state employment in their personal capacities. See M.R.C.P. 12(b)(6).

BARNES, J., JOINS THIS OPINION. ROBERTS, J., JOINS THIS OPINION IN PART.

      . We pause to note that Epps and Dr. Liddell were sued individually and in their official capacities.

      . The record reflects that Judge Tomie Green initially presided over this case but recused herself on March 3, 2008, and the case was reassigned to Judge Bobby Delaughter. On November 13, 2008, Judge William Coleman entered the order granting summary judgment in favor of the MDOC; however, the record fails to show the date on which this case was reassigned from Judge Delaughter to Judge Coleman.

      . Compare Sullivan v. Tullos, 19 So.3d 1271, 1273 (¶ 7) (Miss.2009) ("Pursuant to Rule 56 of the Mississippi Rules of Civil Procedure, summary judgment ‘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.’ ”), and Moorman v. Crocker, 38 So.3d 662, 665 (¶ 9) (Miss.Ct.App. 2010) ("Rule 12(b)(6) tests the legal sufficiency of a complaint, and provides that dismissal shall be granted to the moving party where the plaintiff has failed to state a claim upon which relief can be granted. In applying this rule[,j a motion to dismiss should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of the claim.”) (citing Chalk v. Bertholf, 980 So.2d 290, 293 (¶ 4) (Miss.Ct.App.2007)).

      . Dr. Blackston alleges in his complaint that the contract between the State and Wexford, the private contractor, required that all clinical positions be maintained for a minimum of six months, and he claimed that Dr. Liddell instructed Wexford to hire only minority physicians. The MDOC denied these allegations in their answer.

      . The Mississippi Supreme Court has stated the standard of review applicable to a motion to dismiss pursuant to Mississippi Rule of Civil Procedure 12(b)(6) is as follows:
      A motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure raises an issue of law, which is reviewed under a de novo standard. Cook v. Brown, 909 So.2d 1075, 1077-78 (Miss.2005). A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint. Id. at 1078 (citing Little v. Miss. Dep’t of Human Servs., 835 So.2d 9, 11 (Miss.2002)). The allegations in the complaint must be taken as true, and there must be no set of facts that would allow the plaintiff to prevail. Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893 (Miss.2006). This Court [is] "not [required to] defer to the trial court’s [judgment or] ruling.” Id. (citing Roberts v. New Albany Separate Sch. Dist., 813 So.2d 729, 730-31 (Miss.2002)). This Court must find that there is no set of facts that would entitle a defendant to relief under the law in order to affirm an order granting the dismissal of a claim on a Rule 12(b)(6) motion. Id. (citing Lowe v. Lowndes County Bldg. Inspection Dep't, 760 So.2d 711, 713 (Miss.2000)).

        Campbell v. Davis, 8 So.3d 909, 911 (¶ 13) (Miss.Ct.App.2009).


source: Caselaw Access Project

author: CARLTON, J., RUSSELL, J.,

license: Public Domain

text:
    Eddie Ray JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00202-COA.
    Court of Appeals of Mississippi.
    Aug. 23, 2011.
    Rehearing Denied Nov. 29, 2011.

      Stan Perkins, Greenville, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   CARLTON, J.,

for the Court:

¶ 1. Eddie Ray Jones was convicted in the Circuit Court of Bolivar County of aggravated assault and sentenced as a habitual offender to twenty years in the custody of the Mississippi Department of Corrections (MDOC). Thereafter, Jones filed a post-trial motion for judgment notwithstanding the verdict (JNOV), which was denied by the trial court. Jones then filed a post-trial motion for a new trial, which the trial court subsequently denied. Jones now appeals.

FACTS

¶2. On March 22, 2007, Investigator George Serio with the Cleveland Police Department responded to a call in reference to a shooting that occurred on White Street in Cleveland, Mississippi. After arriving at the scene, Investigator Serio learned that Camisha Cleveland was shot while driving in her car down White Street. Jones, Henry Taylor, Maurice Williams, and Latoya Sellers were subsequently arrested.

¶ 3. On September 21, 2007, Jones and Taylor were indicted by a Bolivar County grand jury for the crimes of aggravated assault and possession of a firearm by a convicted felon. After a trial in the Bolivar County Circuit Court on May 19-20, 2008, the jury found Jones guilty of aggravated assault, but not guilty of possession of a firearm by a convicted felon. The jury found Taylor guilty of aggravated assault and guilty of possession of a firearm by a convicted felon. The trial court sentenced Jones as a habitual offender to twenty years in the custody of the MDOC for his aggravated-assault conviction. The trial court sentenced Taylor to ten years in the custody of the MDOC and to ten years of post-release supervision for his aggravated-assault conviction, and to three years in the MDOC’s custody for his possession of a firearm conviction to run consecutively to his aggravated-assault sentence.

¶ 4. On June 3, 2008, Jones filed a motion for a JNOV, which was denied by the trial court on June 13, 2008. Then, on June 30, 2008, Jones filed a motion for a new trial. The trial court filed a denial of this motion on July 14, 2011. Aggrieved, Jones appeals raising the following issues: whether (1) the court erred in telling the jury that he had a prior conviction for the sale of cocaine; and (2) there was sufficient evidence to sustain his aggravated-assault conviction. Finding no error, we affirm.

JURISDICTION

¶ 5. Before we analyze Jones’s claims, we must first address the issue of whether this Court has proper authority to consider this appeal. Although neither party has questioned this Court’s jurisdiction, “it is incumbent upon this Court to assure that such jurisdiction exists.” Ross v. State, 16 So.3d 47, 52 (¶ 6) (Miss.Ct.App.2009). In the present case, the trial court filed its judgment on May 20, 2008. On June 3, 2008, Jones filed a motion for a JNOV, which the trial court denied on June 13, 2008. On June 18, 2008, the trial court filed Jones’s sentencing judgment. On June 30, 2008, Jones filed a motion for a new trial. Then, on July 24, 2008, the trial court filed an amended sentencing judgment. Jones filed his notice of appeal on July 25, 2008. On July 14, 2011, while the case was on appeal, the trial court filed an order denying Jones’s motion for a new trial. We recognize that under Rule 2(c) of the Mississippi Rules of Appellate Procedure, “[i]n the interest of expediting de-cisión, or for other good cause shown, the Supreme Court or the Court of Appeals may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction; provided, however, in civil cases the time for taking an appeal as provided in Rules 4 or 5 may not be extended.” Therefore, in accordance with Rule 2(c) and in the interests of expediting justice, we have considered the assignments of error raised by Jones in his appeal.

DISCUSSION

I. PRIOR CONVICTION

¶ 6. While conducting voir dire, the trial judge read the indictment to the veniremen for the purpose of determining whether any potential juror had previously heard the facts of the case. While reading the indictment, the trial judge stated that it was alleged that Jones possessed a firearm, a pistol, after he had been previously convicted of the felony crime of sale of cocaine. Even though the State provided Jones with pretrial notice of its intent to use the prior convictions at trial, Jones objected and moved for a mistrial, which was denied by the trial judge.

¶ 7. In his first assignment of error, Jones argues that the trial court erred by informing the jury during voir dire that Jones had a prior conviction for the sale of cocaine. Specifically, Jones claims that Rule 11.03 of the Uniform Rules of Circuit and County Court establishes the method by which trial courts must handle trials involving enhanced punishments. Jones contends that implicit in Rule 11.03 is the requirement that a jury not hear the details of a defendant’s prior conviction(s) for fear the information will prejudice the jury. Jones also argues that his conviction should be overturned because of its factual similarity to Williams v. State, 37 So.3d 717 (Miss.Ct.App.2010), wherein this Court overturned a defendant’s conviction for aggravated assault and felony possession of a weapon.

A. Reading of the Indictment

¶ 8. A review of the record shows that Jones raised this assignment of error before the trial court in his motion for a new trial. The standard of review for the grant or denial of a motion for new trial is abuse of discretion. Bennett v. State, 50 So.3d 369, 371 (¶ 12) (Miss.Ct.App.2010) (citing Hill v. State, 912 So.2d 991, 995 (¶ 25) (Miss.Ct.App.2004)). “A new trial should only be granted if ‘the verdict is so contrary to the overwhelming weight of the evidence that failure to grant the motion for a new trial would result in unconscionable injustice.’ ” Id. “In deciding whether a verdict is against the overwhelming weight of the evidence, ‘this Court must view all evidence in the light most consistent with the verdict.’ ” Id.

¶ 9. After reviewing the record, we find this issue is without merit. A review of Rule 11.03 of the Uniform Rules of Circuit and County Court shows this rule to be inapplicable to the case at hand. Rule 11.03 speaks to cases involving enhanced punishments for subsequent offenses, which is not at issue in today’s case.

¶ 10. Furthermore, while we recognize that the United States Supreme Court in Old Chief v. United States, 519 U.S. 172, 191-92, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), has strongly endorsed the practice of allowing a defendant to stipulate to his status as a previously convicted felon, we find that the record shows that despite pretrial notice of the State’s intent to use the prior convictions at trial, Jones failed to enter such a stipulation prior to the commencement of the trial and prior to the time that the trial judge read the indictment to the jury. The Mississippi Supreme Court has addressed Old Chief and concluded:

Where evidence of a prior conviction is a necessary element of the crime for which the defendant is on trial (i.e., possession of firearm by a convicted felon), but evidence of the specific nature of the crime for which the defendant was previously convicted (i.e., armed robbery), is not an essential element of the crime for which the defendant is on trial ... the trial court should accept a defendant’s offer to stipulate and grant a limiting instruction.

Timms v. State, 54 So.3d 310, 315 (¶ 17) (Miss.Ct.App.2011) (quoting Williams v. State, 991 So.2d 593, 605-06 (¶ 40) (Miss.2008)) (emphasis added).

¶ 11. In the present case, Jones was charged with aggravated assault and possession of a firearm by a convicted felon. Jones had been previously convicted of selling cocaine, a felony. Jones was, therefore, entitled to a stipulation as to his status as a convicted felon. However, the record shows that Jones did not enter into a stipulation as to his prior convictions prior to the commencement of the trial and prior to the time that the trial judge read the indictment to the jury. Moreover, the record reflects that Jones failed to stipulate to his prior conviction until the close of the State’s case-in-chief.

¶ 12. The record shows, during voir dire, the trial judge read Jones’s indictment to the jury. Jones’s counsel, Stan Perkins, objected, and the following exchange occurred outside of the presence of the jury:

PERKINS: Judge, the Court just stated that my client was previously convicted of the sale of cocaine. We stipulated that he was a convicted felon. But I think that’s extremely prejudicial to state the specific felony he’s charged — which he was charged.
THE COURT: In eight years I’ve always paraphrased the indictment. I had no request by anybody [sic] not to do what I’ve done in every case I’ve ever had. I’m not trying to do anything other than to see if anybody heard about it. I certainly would not try to prejudice your client, Counsel.
PERKINS: Judge, I just never expected the Court to do this.
PERKINS: I don’t have a choice but to move for a mistrial.
THE COURT: Okay. That’s denied. Do y’all have a response?
PROSECUTOR: Judge, only that right now as it stands, the State has exhibits it would submit that would state the same thing without there having been a motion.
THE COURT: Is it going to be in the ca§e[-]in[-]chief?
PROSECUTOR: Yes. Unless you want me to stipulate in a motion received by the State.
THE COURT: No, it’s too late at this point for that anyway.
THE COURT: Denied.

(Emphasis added). While the above-stated testimony shows that Jones claimed to have stipulated to his prior convictions, the record fails to include any evidence showing that Jones offered evidence of his prior convictions, or stipulated to his prior convictions, prior to the time that the trial judge read the indictment to the jury during voir dire. In fact, the record shows that Jones entered into a stipulation as to his prior felony conviction on the record at the close of the State’s case-in-chief, well past the commencement of the trial and only after the State was required to prove the elements of the offenses beyond a reasonable doubt. As such, we find no merit to this argument.

B. Mississippi Precedent

¶ 13. In Jones’s brief on appeal, he states:

Rule 11.03 of the Uniform Circuit Court and County Court Rules [sic] establishes the method by which [cjircuit [c]ourts are to handle trials involving enhanced punishment. Implicit in this [r]ule is the understanding that |j]uries are not to hear details of a [defendant’s prior eonviction(s) for fear the information will prejudice the jury.
While, in this case, it is true that Eddie Ray Jones was charged with the crime of being a felon in possession of a fee-arm, the [c]ourt could have easily described the charge as simply that without further detail. Instead, the [c]ourt chose to describe not once, but twice the fact that Jones had previously been convicted of the [s]ale of [c]ocaine. Compound this with the fact that the [c]ourt also stated [defendant Taylor’s prior conviction, over objection, and the [a]p-pellant contends he was irreparably prejudiced.
The [a]ppellant relies on a recent ruling from this Honorable Court involving the same [tjrial [j]udge. In Williams v. State, 2009-KA-00900-COA, [37 So.3d 717 (Miss.Ct.App.2010) ], Williams’[s] conviction for aggravated assault and felony possession of a weapon was overturned for precisely the same reason. Reversal of Jones’[s] conviction in [c]ount [o]ne, therefore, should follow.

While Jones cites Williams v. State, 37 So.3d 717 (Miss.Ct.App.2010), to support his proposition that the trial court violated Rule 11.03 by notifying the jury of his prior convictions, we fed that the cited case does not provide an analysis of the application of Rule 11.03, and in fact, it does not even mention Rule 11.03. Further, as evidenced by the above-stated language, Jones makes no attempt to provide this Court with any argument or explanation as to the relevance of Williams to the assignment of error raised. “This Court has repeatedly held that where the appellant provides no meaningful argument in support of an assignment of error raised, the issue is waived on appeal.” Duncan v. State, 939 So.2d 772, 784 (¶43) (Miss.2006). See also King v. State, 857 So.2d 702, 716 (Miss.2003); Jones v. State, 841 So.2d 115, 138 (Miss.2003); Clay v. State, 881 So.2d 323, 329 (Miss.Ct.App.2004). Therefore, in accordance with Duncan, we fed that Jones waived this issue on appeal.

¶ 14. Notwithstanding the procedural bar, we fed this issue is without merit. In Williams, Jackson Williams Jr. was convicted of aggravated assault and possession of a weapon by a convicted felon. Williams, 37 So.3d at 719 (¶¶ 3-5). On appeal, this Court reversed Williams’s weapon possession conviction after finding that his knife was not a prohibited weapon under the applicable statute. Id. at 719-20 (¶ 5). After making this conclusion, this Court turned to consider the issue of retroactive misjoinder, which “occurs when joinder of multiple counts was initially proper but, through later developments such as an appellate court’s reversal of less than all convictions, joinder has been rendered improper.” Id. at 720 (¶ 7). In adopting the doctrine of retroactive mis-joinder, this Court announced the following two-part test: “(1) was evidence admitted at trial on the vacated count that would not have otherwise been admissible on the remaining count and, if so, (2) can the defendant demonstrate clear prejudice as a result of the inadmissible evidence that was presented to the jury.” Id. at 721 (¶ 10) (emphasis added). After considering the evidence and finding that Williams met both prongs of the retroactive-misjoin-der analysis, this Court reversed Williams’s aggravated-assault conviction and remanded the case to the lower court. Id. at 727-28 (II31).

¶ 15. After applying the retroactive-misjoinder analysis to the facts at hand, we find that, regardless of whether the evidence of Jones’s prior convictions would have been admitted at trial solely to prove the count of aggravated assault, then Jones failed to meet his burden of proving that the evidence of his prior convictions prejudiced him. In fact, as evidenced above, Jones fails to provide this Court with an argument to support his contention that he was “irreparably prejudiced” by the jury’s knowledge of his previous conviction of the sale of cocaine and that this ease should be overturned based on the holding in Williams. See Williams, 37 So.3d at 721 (¶ 10). Therefore, we find this issue lacks merit.

II. SUFFICIENCY OF THE EVIDENCE

¶ 16. In his next assignment of error, Jones argues that the evidence presented at trial was legally insufficient to support his aggravated-assault conviction and that the trial court erred by denying his request for a peremptory jury instruction as to the sufficiency of the evidence. Jones asserts that because ,he was acquitted of possession of a firearm by a convicted felon, it logically follows that the jury did not find that he possessed or fired a gun on the day in question; therefore, the jury could only have found him guilty of aiding and abetting in the aggravated assault. Jones further contends that since no proof existed that he assisted the shooter or instructed the shooter to fire his weapon, the jury should have acquitted him of the charge of aggravated assault.

¶ 17. The State responds by pointing to Edwards v. State, 797 So.2d 1049, 1058 (¶ 25) (Miss.Ct.App.2001) (quoting Ruiz v. State, 641 S.W.2d 364, 366 (Tex.Ct.App.1982)), for the proposition that, “where a multi-count verdict appears inconsistent, the appellate inquiry is limited to a determination of whether the evidence is legally sufficient to support the counts on which a conviction is returned. What the jury did with the remaining counts is immaterial.” Accordingly, the State argues that the fact that Jones was acquitted of possession of a firearm by a convicted felon has no bearing whatsoever on a review of the sufficiency of the evidence of his aggravated-assault conviction. The State further argues that sufficient evidence existed for the jury to determine that Jones was principally liable for aggravated assault or, in the alternative, aided and abetted Taylor in committing aggravated assault.

¶ 18. When reviewing the sufficiency of the evidence, an appellate court “views the evidence in the light most favorable to the prosecution and asks if ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Gilbert v. State, 48 So.3d 516, 520 (¶ 12) (Miss.2010) (quoting Bush, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). A person is guilty of aggravated assault if he “attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]” Miss.Code Ann. § 97-3-7(2)(a) (Supp.2010).

¶ 19. Considering the evidence in light most favorable to the State, we find that sufficient evidence existed to convict Jones of aggravated assault. At trial, Sellers, testified that on March 22, 2007, as she was driving down White Street with Williams, she passed a large crowd of people walking on the side of the street. Sellers testified that as she was driving down White Street, she heard someone in the crowd yell an insult toward Williams. Sellers testified that after the insult was lodged, Williams stepped out of her vehicle and exchanged words with Jones, who was in the crowd. Sellers further testified that through her rear-view mirror, she saw Jones with a gun running behind her vehicle and then shots were fired. Investigator Serio testified that through his investigation, he was able to conclude that Jones and Taylor would have been shooting east on White Street. Investigator Serio further testified that Cleveland, the victim, was traveling west on White Street when a bullet entered her front windshield and struck her.

¶ 20. Accordingly, we find that when the evidence is viewed in the light most favorable to the prosecution, “any rational trier of fact could have found” beyond a reasonable doubt that Jones was guilty of aggravated assault. Gilbert, 48 So.3d at 520-21 (¶ 15) (quoting Bush, 895 So.2d at 843). Jones’s argument that his aggravated-assault conviction lacks sufficient supporting evidence is without merit.

¶ 21. Further, we recognize that while Jones argues that the trial court erred by refusing his proposed peremptory jury instruction as to the sufficiency of the evidence, we find that this argument also lacks merit. “The denial of motions for a peremptory jury instruction, motions for a directed verdict and motions for a judgment notwithstanding the verdict all -implicate the sufficiency of the evidence.” Reed v. State, 987 So.2d 1054, 1057 (¶ 10) (Miss. Ct.App.2008) (citing Bell v. State, 910 So.2d 640, 646 (¶ 16) (Miss.Ct.App.2005)). Because we have found that sufficient evidence exists supporting Jones’s aggravated-assault conviction, we, likewise, find that this argument lacks merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

LEE, C.J., GRIFFIS, P.J., ISHEE AND MAXWELL, JJ., CONCUR. BARNES AND ROBERTS, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. RUSSELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, P.J. MYERS, J., NOT PARTICIPATING.

RUSSELL, J.,

dissenting:

¶ 23. The majority finds that the evidence is sufficient to convict Eddie Ray Jones of aggravated assault. I find that the jury was improperly instructed, and the verdict is against the weight and sufficiency of the evidence. Therefore, I respectfully dissent.

I. SUFFICIENCY OF THE EVIDENCE-AGGRAVATED ASSAULT

¶ 24. When reviewing the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, 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). The State failed to offer sufficient evidence for the jury to determine that Jones was individually liable for aggravated assault.

¶ 25. Count I of the indictment charges that “Eddie Ray Jones and Henry Taylor A/K/A Main ... individually, or while aiding and abetting and/or acting in concert with each other, did purposely, knowingly or recklessly, under circumstances manifesting extreme indifference to the value of human life, cause serious bodily injury to Camisha Cleveland, by shooting into the street or traffic.” Thirteen witnesses testified at trial. One individual, Latoya Sellers, testified that she saw Jones with a gun. Sellers was the girlfriend of Maurice Williams; she testified that Williams got out of her car with a weapon immediately prior to her hearing gunshots. Sellers gave three different versions of the events to authorities. First, she told the police that she did not see anyone with a gun, because she had been driving. By the time of her third statement to the police, Sellers remembered that she had seen Jones with a gun. She also remembered that her boyfriend, Williams, had a gun in his hand when he left her car. Sellers testified that after Williams had exited the car, she heard a gunshot, but she did not testify that the shot was fired by Jones. The record indicates that neither Sellers nor any other witness saw Jones shoot a gun. The assault on Cleveland was the result of a bullet entering the windshield of her car, striking her, and causing injury. The State provided no evidence that Jones fired a weapon into the street or traffic that caused serious bodily injury to Cleveland.

¶ 26. Jurors are expected to use common sense and sound honest judgment in considering and weighing the testimony and credibility of the witnesses. The fact that the jury acquitted Jones for possession of a firearm would indicate that they did not believe Sellers and rejected her testimony that she saw Jones with a gun. In the absence of Jones possessing a gun, it would be an illogical conclusion that he could have fired the shot that injured Cleveland. Absent other proof, the evidence is insufficient to find Jones individually liable for aggravated assault. See Sands v. State, 62 So.3d 374, 378 (¶ ¶ 17-20) (Miss.2011).

¶ 27. The majority relies on Edwards v. State, 797 So.2d 1049, 1058 (¶ 25) (Miss.Ct. App.2001) for the proposition that how the jury ruled on one count is immaterial as to how they ruled in another count of a multi-count verdict. However, the fact that the jury determined that Jones did not have a gun cannot be ignored in determining if he was principally responsible for the shot fired which caused the injury to Cleveland.

II. SUFFICIENCY OF THE EVIDENCE-AIDING AND ABETTING

¶ 28. The State failed to offer sufficient evidence proving that Jones aided and abetted or acted in concert with Henry Taylor in committing aggravated assault. The Mississippi Supreme Court explained long ago that an aider and a better must “do something that will incite, encourage, or assist the actual perpetrator in the commission of the crime.” Crawford v. State, 138 Miss. 147, 147, 97 So. 534, 534 (1923). Further, “[o]ne who aids and abets necessarily enters into an agreement that an unlawful act will be done. He participates in the design of the felony.” King v. State, 857 So.2d 702, 728(91) (Miss.2003). See, e.g., Sims v. State, 908 So.2d 186, 188(7-8) (Miss.Ct.App.2005) (finding that an aiding- and-abetting instruction was proper where defendant called and made plans to meet coindictee, then requested, and used coin-dictee’s gun to commit aggravated assault).

¶29. The record includes no evidence of Jones’s assisting, encouraging, inciting, or planning with Taylor to shoot into the crowd, street, or traffic. I have searched the record, without success, to find any testimony or other evidence that Jones communicated with Taylor in any manner during the incident that led to the injury of Cleveland. Of the thirteen witnesses, not one inference was provided that there was a plan or any act by Jones to assist, encourage, incite, or support Taylor in any criminal act. Similarly, there is not one scintilla of evidence, either direct or circumstantial, that Jones had knowledge of any criminal act until, like everyone else in the area, Williams stepped from Sellers’s car and the shooting began. In fact, the record includes no evidence of any interaction between Jones and Taylor that would rise to the level of aiding and abetting.

¶ 30. “Mere presence” at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the commission of the crime. Hughes v. State, 983 So.2d 270, 276(14) (Miss.2008) (citation omitted). Considering the evidence in light most favorable to the prosecution, I find that the evidence is insufficient to convict Jones of aiding and abetting or acting in concert with Taylor in committing aggravated assault. The trial judge stated, following the announcement of the verdict, “the only thing I could think is that they went to the aiding and abetting which was part of the indictment which was — and jury instruction was given along those lines.” Further, in denying Jones’s motion for a judgment notwithstanding the verdict (JNOV), the trial judge again stated: “Obviously, the jury concluded that the Defendant aided his co-defendant in the commission of the aggravated assault.” But then the trial judge seems to find that the jury found Jones guilty by acting individually. The majority points to no testimony in the record to support a conviction of Jones for aiding and abetting because none exists. The State points to no evidence in the record to support proof of any element required for aiding and abetting. There is nothing to indicate that Jones deliberately associated himself in some way with the crime and participated in it with the intent to bring about the crime. Sellers’s testimony that she heard someone in the crowd yell an insult toward Williams or even that the two exchanged words is insufficient to show that Jones aided and abetted or acted in concert with Taylor in committing aggravated assault. An indictment which charges that parties acted in concert does not relieve the prosecution of the obligation to establish (1) a joint action and (2) an injury occurring as a result of that joint action, rather than some other action. Hedrick v. State, 637 So.2d 834, 837 (Miss.1994) (citations omitted). Accordingly, I would reverse Jones’s aggravated-assault conviction and render a judgment of acquittal.

III. PLAIN-ERROR REVIEW

¶ 31. On appeal, Jones does not challenge the jury instructions or the weight of the evidence. As no contemporaneous objection was made, this issue is procedurally barred. Jackson v. State, 684 So.2d 1213, 1226 (Miss.1996). Plain-error review may be invoked where (1) a party failed to preserve an error for appellate review, and (2) a substantial right is affected. A review under the plain-error doctrine is necessary when a party’s fundamental rights are affected, and the error results in a manifest miscarriage of justice. Williams v. State, 794 So.2d 181, 187 (V 23) (Miss. 2001) (overruled on other grounds). Because the right to due process and equal protection in this case affects a substantial right — specifically, a right to a fair trial— plain-error review is appropriate.

A. Aggravated-assault Jury Instruction

¶ 32. “When considering a challenge to a jury instruction on appeal, we do not review jury instructions in isolation; rather, we read them as a whole to determine if the jury was properly instructed.” Mi-lano v. State, 790 So.2d 179, 184(14) (Miss. 2001) (citation omitted). “[I]f the instructions fairly announce the law of the case and create no injustice,” this Court will not reverse. Id. I submit that the jury instructions given in this case coupled with statements made by the trial judge confused the jury and impacted a fundamental right of Jones.

¶ 33. The unnumbered aggravated-assault jury instruction states, in relevant part, that:

[I]f you believe from the evidence in this case beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence that:
(1) On or about March 22, 2007, the defendants, Eddie Ray Jones and Henry Taylor ..., individually, or while aiding and abetting and/or acting in concert with each other, did purposely, knowingly or recklessly, under circumstances manifesting extreme indifference to the value of human life, cause serious bodily injury to Camisha Cleveland, and
(2) said injury was caused by shooting into the street or traffic thereby hitting Camisha Cleveland causing injury to the right side of her head and/or her right ear,
then you shall find the defendants Eddie Ray Jones and Henry Taylor, guilty of aggravated assault....

(Emphasis added). The fault with this instruction is that the jury was required to find Jones guilty, even if they found that Taylor had acted individually. Although the trial court provided an instruction that you must find that each person committed the acts, it did not cure the problem.

¶ 34. Couple the aggravated-assault jury instruction with the fact that right before instructing the jury, the trial judge explained to it: “[w]e’ve got three charges. [Taylor and Jones] are charged with ag[gravated] assault, and that will be either guilty or not guilty for two defendants, and then you’ve got an individual charge of possession of a firearm.” (Emphasis added). Later, while reading the form-of-the verdict instructions, the trial judge paused to explain that “[Taylor and Jones] are both charged with aggravated assault together — well, in one indictment. Then they individually have possession charges of a firearm.”

¶ 35. And there is more. After instructing the jury, the trial court, at the State’s request, granted an aiding-and-abetting jury instruction. Reading the jury instructions together does not cure the problem here. Even if the jury determined that Taylor had acted alone, the jury instructions negate any opportunity for the jury to acquit Jones of aggravated assault.

¶ 36. Further, the inconsistent verdicts become relevant when reviewing whether the jury was properly instructed. This inconsistency exhibits the injustice done to Jones by jury instructions that did not announce the applicable law; the jury never received any clarity on whether Jones could be acquitted. If the jury believed Sellers’s statement that she saw Jones with a gun, the jury would have convicted him of possession of a firearm. The improper jury instructions coupled with the trial judge’s confusing comments on the applicable law warrant a new trial.

¶ 37. The United States Supreme Court has stated that an error of constitutional dimension is not harmless if “there is a reasonable possibility that [it] might have contributed to the conviction.” Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). The State must prove “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In the present case, the possibility of prejudicial impact is present; therefore, I conclude that the trial judge’s comments coupled with the jury instructions were not harmless errors. Accordingly, if the judgment is not reversed and rendered, I would reverse the aggravated-assault conviction and remand for a new trial.

B. Weight of the Evidence

¶ 38. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, [this Court] 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). This Court must consider the evidence in the light most favorable to the verdict. Id. “The motion ... is addressed to the discretion of the court.... [A] new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (citation omitted).

¶ 39. It is the province of the jury as the ultimate fact-finder to accord the weight and credibility to the evidence. Neal v. State, 451 So.2d 743, 758 (Miss.1984). However, there must be some evidence to support the verdict. In this case, none was presented.

¶ 40. The separate accounts of the events of the day of the incident vary to some degree among the witnesses; however, no witness provided any testimony that Jones was heard or seen providing any aid, encouragement, or assistance to Taylor on the day in question. I have searched the record to find even an inference from one of the witnesses that Jones encouraged or incited Taylor to participate in some illegal activity on that day or any other day.

¶ 41. Considering the evidence in the light most favorable to the verdict, Jones’s conviction cannot stand. As discussed above, the State provided no evidence that Jones either shot Cleveland, which would make him individually liable, or that he aided and abetted and/or acted in concert with Taylor in shooting Cleveland. Because allowing Jones’s conviction to stand would sanction an unconscionable justice, minimally this Court should reverse and remand for a new trial, even though I firmly believe that the most appropriate action would be to reverse Jones’s aggravated-assault conviction and render a judgment of acquittal as heretofore stated.

IRVING, P.J., JOINS THIS OPINION.

      . The record reflects that while Taylor initiated an appeal, his appeal was dismissed due to his failure to file an appellate brief.

      . We pause to note that because the trial court ruled upon Jones’s motion for a new trial while Jones’s appeal was before this Court, the trial court's order denying Jones's motion for a new trial was not initially part of the record in this case.

      .Rule 11.03 provides:
      In cases involving enhanced punishment for subsequent offenses under state statutes:
      1. The indictment must include both the principal charge and a charge of previous convictions. The indictment must allege with particularity the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous conviction, and the date of judgment.
      The indictment shall not be read to the jury.
      2. Separate trials shall be held on the principal charge and on the charge of previous convictions. In the trial on the principal charge, the previous convictions will not be mentioned by the [S]tate or the court except as provided by the Mississippi Rules of Evidence.
      3. If the defendant is convicted or enters a plea of guilty on the principal charge, a hearing before the court without a jury will then be conducted on the previous convictions.

      .The Supreme Court in Old Chief stated:
      This recognition that the prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story has, however, virtually no application when the point at issue is a defendant’s legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him.... The most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress thought should bar a convict from possessing a gun, and this point may be made readily in a defendant's admission and underscored in the court’s jury instructions ....

        Id. at 190-91, 117 S.Ct. 644.

      . In discussing this assignment of error, Jones fails to point to the specific jury instruction upon which he asserts error.

      . "[I]t is well-settled law that the jury determines the credibility of witnesses and resolves conflicts in the evidence.” McKay v. State, 59 So.3d 644, 646 (¶ 6) (Miss.Ct.App.2011) (citations omitted). Furthermore, we recognize that "a jury is allowed to consider all logical inferences flowing from the evidence.” Anderson v. State, 874 So.2d 1000, 1006 (¶ 22) (Miss.Ct.App.2004). This Court "will not reweigh the evidence, as matters regarding the weight and credibility of the evidence are to be resolved by the jury.” Holloway v. State, 860 So.2d 1244, 1246 (¶ 9) (Miss.Ct.App.2003) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)).

      . The trial judge also denied the motion for a JNOV based on the weight of the evidence rather than viewing the sufficiency of proof of each element of the crime.

      . The motion for a new trial had not been ruled upon when this case was initially appealed; however, the Court has accepted this case in the interest of judicial economy and addressed the issue of reading the indictment cited in Jones’s motion for a new trial. I will address the weight of the evidence issue raised in the motion for a new trial and the jury instructions under the plain-error doctrine.


author: ROBERTS, J.,

text:
    Amir YOUNG, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01354-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2011.
    Rehearing Denied May 15, 2012.
    Certiorari Denied Aug. 23, 2012.
    Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On July 29, 2010, Amir Young was convicted by a jury in the Circuit Court of Hinds County of armed robbery and possession of a firearm by a convicted felon. Young was sentenced to serve thirty years on Count I for the armed-robbery conviction and ten years on Count II for the possession of a firearm by a convicted felon conviction with the sentence in Count II to run concurrently with the sentence in Count I, all in the custody of the Mississippi Department of Corrections (MDOC), as a habitual offender, without eligibility for parole or probation. Young filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The circuit court denied Young’s post-trial motion. Feeling aggrieved, Young now appeals.

FACTS

¶ 2. On December 7, 2009, a black man wearing a dark hooded sweatshirt, a black bandana over his face, and brandishing a gun entered Manufacturers Carpet Outlet (MCO) on Highway 80 in Jackson, Mississippi. The man, who was later identified as Young, grabbed a female customer but immediately let go of her when Richard Flenker, a MCO employee, intervened. Instead, Young grabbed Flenker and forced him to go to MCO’s business office to retrieve money. Flenker told Young there was no money in the office and gave Young his wallet instead. Young then fled the building with Flenker following thirty to forty feet behind him on foot. Flenker testified that he saw Young jump a fence and get into a creek bed. Young then jumped another fence and entered a neighboring business that houses Porta-Potties (portable toilets). Flenker saw one of the doors of the Porta-Potties slam, so he waited for Young to exit. While waiting, James Phillips, an employee of Commercial Flooring, which is located in the same building as MCO, arrived and waited there with Flenker. Young then exited one of the Porta-Potties and ran across the street into an auto repair shop that is fenced on four sides by an eight-to-ten-foot chain-link fence with razor wire on the top. Because of the fencing, Flenker and Phillips were able to corner Young, who was no longer wearing a mask but still holding a gun. Flenker also saw that the gun was now missing its chamber. Young threw Flenker his wallet back and jumped a portion of the fence onto Gault Street. Phillips and an officer with the Jackson Police Department continued to pursue Young and saw Young take the gun apart and throw the cylinder and then the rest of the gun over the fence. The cylinder was never recovered. The remainder of the gun was found and entered into evidence. Flenker identified Young from a photographic lineup and identified Young on the day of trial as the man that had robbed him.

¶ 3. At the conclusion of the trial, the jury unanimously found Young guilty of armed robbery and guilty of possession of a firearm by a convicted felon. At a hearing held on August 5, 2010, the circuit court clarified Young’s sentence. Young was sentenced to serve twenty years in the custody of the MDOC for his armed robbery conviction. He was indicted as a habitual offender and also indicted pursuant to Mississippi Code Annotated section 97-37-37(2) (Supp.2011). Section 97-37-37(2) provides for the imposition of an additional term of ten years in the custody of the MDOC for “any convicted felon who uses or displays a firearm during the commission of any felony....” Id. Young was sentenced to an addition ten years pursuant to that section to run consecutively to the twenty years imposed on the armed-robbery conviction. Therefore, Young was sentenced to serve a total of thirty years for the armed-robbery conviction. Young was then sentenced to serve ten years in the custody of the MDOC for his conviction of possession of a firearm by a convicted felon. This sentence was ordered to run concurrently to the thirty-year armed-robbery sentence. After trial, Young filed a motion for a JNOV or, in the alternative, for a new trial. The circuit court denied the post-trial motion. Young now appeals, raising the sole issue of whether there was sufficient evidence to support Young’s convictions of armed robbery and possession of a firearm by a convicted felon.

STANDARD OF REVIEW

¶ 4. In Conner v. State, 26 So.3d 388, 387 (¶¶9-10) (Miss.Ct.App.2009), this Court said:

When reviewing a challenge to the sufficiency of the evidence, this Court will reverse and render only if the facts and inferences point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty. The evidence will be deemed sufficient if having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense. Thus, the relevant question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This Court considers the evidence in the light most favorable to the State. The State also receives the benefit of all favorable inferences that may reasonably be drawn from the evidence.

(Internal citations omitted).

DISCUSSION

¶ 5. To bolster his contention that there was insufficient evidence to support his conviction, Young asserts that the object or gun-like object introduced at trial was not a deadly weapon for purposes of the elements of armed robbery.

¶ 6. The essential elements of armed robbery are “(1) a felonious taking or attempt to take, (2) from the person or from the presence, (3) the personal property of another, (4) against his will, (5) by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.” Gladney v. State, 963 So.2d 1217, 1221 (¶ 12) (Miss.Ct.App.2007) (quoting Bush v. State, 895 So.2d 836, 843 (¶15) (Miss.2005)). These are the same elements of the crime found in Mississippi Code Annotated 97-3-79 (Rev.2006).

¶ 7. In this case, there was testimony the gun was complete at the time of the robbery. Further, there is no requirement that the “deadly weapon” be introduced at trial. See Clayton v. State, 946 So.2d 796 (Miss.Ct.App.2006). In Clayton, this Court found the testimony of one witness “was sufficient to establish the element of exhibition of a deadly weapon[.]” Id. at 805 (¶ 29) (citing Collins v. State, 817 So.2d 644, 658 (¶¶ 44-46) (Miss.Ct.App.2002)). Also, the Mississippi Supreme Court has held: “A pistol has ... been judicially declared to be a ‘deadly weapon’ without proof that it is loaded or presently capable of committing a violent injury.” Davis v. State, 530 So.2d 694, 702 (Miss.1988).

¶ 8. Therefore, Young’s assertion there was insufficient evidence to show the gun was a “deadly weapon” is without merit.

¶ 9. Young then questions whether there was proof of fear as is statutorily required. In this case, Flenker testified he was “scared” because “there was a gun” and “a man with a mask [was] trying to rob this place.” This Court had stated: “The fear element does not require the victim to be frightened or terrified, but [it] is fulfilled if the victim expects or anticipates that personal injury may result if he does not follow the assailant’s instructions made while threatening the use of a deadly weapon.” Evans v. State, 957 So.2d 430, 436 (¶ 19) (Miss.Ct.App.2007) (citing Harper v. State, 434 So.2d 1367, 1368 (Miss.1983)). This issue is without merit.

¶ 10. Young argues there was insufficient evidence to support his conviction of a convicted felon in possession of a firearm. To prove possession of a firearm by a convicted felon, the State must prove two things: (1) the person was in possession of a firearm, and (2) the person had been convicted of a felony crime. Cooley v. State, 14 So.3d 63, 66 (¶ 13) (Miss.Ct. App.2008) (citing Short v. State, 929 So.2d 420, 427 (¶ 21) (Miss.Ct.App.2006)). As previous noted, this Court has already discussed whether the object was a firearm. Mississippi Code Annotated section 97-37-5(1) (Supp.2011) does not require that the gun be operable. See Cooley, 14 So.3d at 67 (¶ 16). Therefore there is no dispute that the State satisfied prong one of the test. In regard to prong two, there is no dispute that Young is a convicted felon; thus, prong two has also been proven. Therefore, this issue is without merit.

¶ 11. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ARMED ROBBERY, AND SENTENCE OF THIRTY YEARS AND COUNT II, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF TEN YEARS TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT I, ALL AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


author: GRIFFIS, P.J.,

text:
    Jaire T. PIERCE, Jr. a/k/a Jairie T. Pierce, Jr. a/k/a Jairie Theodore Pierce, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01625-COA.
    Court of Appeals of Mississippi.
    Jan. 17, 2012.
    Rehearing Denied June 5, 2012.
    Certiorari Denied Aug. 23, 2012.

      David L. Walker, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   GRIFFIS, P.J.,

for the Court.

¶ 1. Jaire Pierce, Jr. was indicted for burglary and grand larceny of a church. Pierce was convicted on the larceny charge, and the jury could not reach a verdict on a burglary charge. The Circuit Court of Tate County sentenced Pierce to serve ten years in the custody of the Mississippi Department of Corrections. On appeal, Pierce argues the verdict was against the overwhelming weight of the evidence. We find no reversible error and affirm.

FACTS

¶ 2. On the night of October 4, 2009, various items were stolen from the New Garden Baptist Church in Tate County, Mississippi. Among other things, this included computers, printers, copy machines, an air compressor, audio/video equipment, cookware, ice cream, coffee creamers, and communion cups.

¶ 3. At approximately midnight, Pierce was driving in Olive Branch, Mississippi, when he was pulled over by Sergeant Keith Kite of the DeSoto County Sheriffs Department. Sergeant Kite noticed various items in the passenger compartment and bed of Pierce’s truck, which were later identified as those taken from the New Garden Baptist Church. Pierce claimed he had cleaned out his office in Marshall County, and the items belonged to him. Pierce had, however, been traveling east on Highway 302, toward Marshall County, at the time he was stopped.

¶ 4. Sergeant Kite’s suspicions peaked when he observed that several of the boxes in the bed of the truck had shipping labels with Charles Johnson’s name and address printed on them. Sergeant Kite relayed this information to the dispatch officer, who called Johnson. Johnson reported that the items belonged to the New Garden Baptist Church, which was later discovered to have been burglarized. Pierce was arrested. When Sergeant Kite searched Pierce, he found a screwdriver and a remote control that had been stolen from the church. Subsequent investigation revealed Pierce’s parents’ home is located near New Garden Baptist Church.

¶ 5. At trial, Pierce testified in his own defense. Pierce ran a tree-trimming business, and he denied he had a financial motive to steal. According to Pierce, he had left his truck with an employee who was supposed to replace its gas tank. The truck — an older Ford F-150 with a distinctive two-tone paint job — had then been spotted by someone on the side of the road in DeSoto County. Pierce’s cousin drove him to DeSoto County to look for the vehicle. When they found the truck, the stolen property was already in it. Pierce knew the items were not his, but he wanted to get the truck somewhere safe before sorting it out. Pierce used the screwdriver to hotwire the vehicle’s lights, which were not working; and he inadvertently placed the remote control in his pocket, believing it was his cell phone. Pierce also disputed Sergeant Kite’s testimony that he was driving toward Marshall County at the time he was pulled over; Pierce testified that he was traveling in the opposite direction, toward the employee’s home in Memphis, Tennessee. Pierce did admit, however, that he was staying with his cousin in Marshall County at the time.

¶ 6. Pierce was indicted for burglary and grand larceny. The jury deadlocked on the burglary charge. After being polled, the circuit court determined that the jury could not reach a verdict if given more time. Pierce’s motion for a mistrial on the burglary charge was granted. The jury returned a guilty verdict on the grand-larceny charge. In this appeal, Pierce claims the guilty verdict was against the overwhelming weight of the evidence.

DISCUSSION

¶ 7. In Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005), the supreme court has stated the standard of review, when reviewing a denial of a motion for a new trial as follows:

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.... However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather ... [the reviewing] court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

(Internal citations and quotations omitted). Further, the supreme court cautioned that a challenge to the weight of the evidence “is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id.

¶8. Pierce argues the State failed to produce certain evidence at trial. Pierce claims there were no fingerprints at the scene that tied him to the crime. Pierce also contends that the State did not obtain a cast of tire tracks near the church and analyze whether the tracks came from Pierce’s truck’s tires. Finally, Pierce argues that there was neither a confession nor eyewitness testimony about the theft.

¶ 9. “[T]he possession of property recently stolen is a circumstance which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt of larceny.” Robinson v. State, 418 So.2d 749, 756 (Miss.1982). The theft from the church occurred on a Sunday night. Testimony indicated that most of the worshipers would have left the church around 8:00 p.m. that night, with everyone gone by approximately 8:30 p.m. Pierce was apprehended four minutes after midnight in De-Soto County. The arresting officer noted that the cream stolen from the church was only partially melted, indicating that it had been thawing for only a short time. Since Pierce was caught with the stolen items such a short time after the crime could have occurred, there is an inference that he was the one who had stolen the items.

¶ 10. Moreover, Pierce’s explanation of how he came to possess the stolen items is not credible. Even on its own terms, the story is improbable, and it was not corroborated even though Pierce identified at least three other people who could have done so. Pierce also gave a different statement to the arresting officer, claiming that he was clearing out an office in Marshall County and that the items belonged to him. To the contraiy, when Pierce testified, he admitted that knew the items in his trucks were not his.

¶ 11. The State’s failure to analyze the tire tracks was explained by an investigator, who stated she did not find tire tracks that were deep enough to make a cast for comparison. Even in Pierce’s account, there appears to be little question his truck was used in the theft. The fact that Pierce was not linked to the crime scene by fingerprints weighs little against the other evidence of guilt.

¶ 12. Ultimately, it was for the jury to weigh Pierce’s testimony against the inferences of guilt from the circumstantial evidence introduced against him. Conflicts in the evidence are for the jury to resolve. Whittington v. State, 377 So.2d 927, 929 (Miss.1979). Likewise, the jury is the sole judge of the credibility of witnesses. Nix v. State, 8 So.3d 141, 146 (¶ 26) (Miss.2009). We find that the jury’s verdict is not against the overwhelming weight of the evidence.

¶ 13. In his brief, Pierce lists a second issue: whether verdict was supported by sufficient evidence. However, he did not brief this issue. As a result, the consideration of the second issue is barred on appeal. See Ruff v. Estate of Ruff, 989 So.2d 366, 372 (¶24) (Miss.2008). Notwithstanding the procedural bar, we find that the evidence discussed above was legally sufficient to support Pierce’s conviction for grand larceny.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY OF CONVICTION OF GRAND LARCENY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Pierce stated that he was not sure who had called to tell him about the truck. Pierce knew it was someone from the Clark residence, business associates of his, but he could not say whether it was the senior Clark, one of his adult sons, or one of his grandsons. He could not give a first name Pierce explained that after years of cutting trees, he was hard of hearing.


text:
    Kenneth BAKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01339-COA.
    Court of Appeals of Mississippi.
    Jan. 24, 2012.
    Rehearing Denied June 12, 2012.
    Certiorari Denied Aug. 23, 2012.

      Leslie S. Lee, Hunter Nolan Aikens, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Kenneth Baker appeals his conviction for statutory rape under Mississippi Code Annotated section 97-3-65 (Supp. 2011). On appeal, he argues: (1) the indictment was fatally defective because it failed to allege an essential element of the crime charged, and (2) the trial court committed plain error by failing to instruct the jury on the essential elements of the crime. We find no error and affirm.

FACTS

¶ 2. In September 2007, fifteen-year-old Victoria lived with her mother in a trailer park located on Gunshot Road in Lowndes County, Mississippi. On the morning of September 5, 2007, thirty-year-old Kenneth Baker left for work from his sister’s trailer, which was located near Victoria’s trailer. Before he left for work, he entered Victoria’s trailer and had sexual intercourse with her while her mother was away at work.

¶ 3. Baker and Victoria disagree about what happened inside the trailer on that morning. Victoria testified Baker tapped on her trailer window and asked her to let him inside. Victoria claims she let Baker inside, and he in turn groped her, laid her down on the living room floor, put his penis inside her vagina, and pulled out before ejaculating on the living room carpet. Conversely, Baker testified that Victoria flagged him down while he was leaving for work that morning. She then asked him to light her cigarette and requested that he enter the trailer. Baker claims that when he entered, Victoria asked him to pay her for sex, grabbed and massaged his penis, and left the room before he ejaculated in his pants and on the carpet. Both agree that Victoria gave Baker two washcloths to clean himself and the carpet. Baker left for work, and Victoria went to school shortly after the incident.

¶ 4. Victoria told her mother about the event later that afternoon, and her mother contacted the police.

¶ 5. Officer Greg Wright, the investigating officer, collected physical evidence from the trailer. Officer Wright instructed Victoria to visit a local hospital to receive a rape test, and he later collected evidence from Baker. On September 5, 2007, Officer Wright sent a portion of the carpet and the two washcloths from the trailer to Scales Biolab for testing. Victoria visited the hospital on the day of the alleged rape, where a nurse collected vul-var and vaginal swabs from her. These swabs were also sent to Scales Biolab. Baker voluntarily gave swabs of his saliva to Officer Wright in his subsequent investigation.

¶ 6. Dr. Bo Scales, testified about the tests he ran on the evidence he had received from Officer Wright and the hospital. Dr. Scales testified that the carpet from the trailer tested positive for Baker’s semen and DNA. Dr. Scales also testified that one of the washcloths tested positive for a mixture of DNA from Victoria and Baker. He testified that the vaginal swab taken from Victoria’s inner vagina contained no semen or DNA from Baker. Finally, Dr. Scales testified that the vulvar swab contained no semen from Baker, but it did return a positive match for Baker’s DNA.

¶ 7. Baker was convicted of statutory rape for having sexual intercourse with a fifteen-year-old girl. He was sentenced to twenty-three years in the custody of the Mississippi Department of Corrections, with five years of post-release supervision.

ANALYSIS

1. Whether the indictment was fatally defective because it failed to allege an essential element of the crime charged.

¶ 8. Baker argues that the indictment was fatally defective because it failed to allege an essential element of statutory rape under section 97-3-65. Specifically, he argues that failing to include the element stating Victoria was not his spouse resulted in a fatally defective indictment. The State argues Baker’s claim is procedurally barred because he failed to raise it before the trial court, and the claim has no merit because the indictment was sufficient as it gave Baker reasonable notice of the charge against him.

¶ 9. Notwithstanding the claim of a procedural bar, we find that the indictment was sufficient. The standard of review as to whether an indictment notifies a defendant of a charge against him is a question of law, which is reviewed de novo. Winters v. State, 52 So.3d 1172, 1174 (¶ 7) (Miss.2010).

¶ 10. The indictment alleges that Baker:

a person who is twenty-one (21) years of age or older ... did unlawfully, willfully, and feloniously have sexual intercourse with [Victoria] a child at least fourteen (14) years of age, but under sixteen (16) years of age, her date of birth being October 17, 1991, the said KENNETH BAKER being thirty-six (36) or more months older than said child, his date of birth being April 5, 1977, by inserting his penis into her vagina and engaging in sexual intercourse....

¶ 11. Section 97-3-65(l)(a) states that the elements of statutory rape have been met when:

(a) Any person seventeen (17) years of age or older has sexual intercourse with a child who:
(i) Is at least fourteen (14) but under sixteen (16) years of age;
(ii) Is thirty-six (36) or more months younger than the person; and
(iii) Is not the person’s spouse.

We find that the omission of the element that Victoria was not Baker’s spouse was inconsequential because there was no evidence in the record to suggest that Victoria was Baker’s spouse. Further, Baker testified that he was married to another person at the time of the alleged rape.

¶ 12. Baker’s indictment was sufficient because it tracked the language of the statute, discussed essential facts of the offense, and its heading stated: “STATUTORY RAPE (§ 97-3-65).” This Court has held that the purpose of an indictment is to put the defendant on notice of the charge against him. Robinson v. State, 966 So.2d 209, 213 (¶ 11) (Miss.Ct.App. 2007). The supreme court has held that an indictment gives sufficient notice so long as its words substantially describe the crime within the statute. Winters, 52 So.3d at 1175 (¶ 7). And it is “not a requirement that the indictment use the exact words of the statute.” Id. Further, indictments generally only need to be a “plain, concise[,] and definite written statement of the essential facts constituting the offense charged.” Id. Here, the indictment clearly discussed the facts of the case when it stated the ages of both Baker and Victoria and the nature of the crime. Indictments become defective when they fail to inform the defendant of the crime he is charged with committing. Broadus v. State, 392 So.2d 203, 205 (Miss.1980). Here, the indictment was not defective because its heading clearly stated the crime and code section: “STATUTORY RAPE (§ 97-3-65).”

¶ 13. Accordingly, the indictment was not defective because it gave Baker sufficient notice that he was being charged with statutory rape. Therefore, this issue has no merit.

2. Whether the trial court committed plain error by failing to instruct the jury on the essential elements of the crime.

¶ 14. Baker again argues that an essential element of the crime was omitted—this time from jury instruction S-2. The State argues Baker is precluded from raising this issue because he failed to raise it at trial, and the instruction was sufficient because it followed and tracked the indictment.

¶ 15. Baker’s claim is procedurally barred because he failed to object specifically to jury instruction S-2. The Mississippi Supreme Court has held that an opposing party must state a contemporaneous objection in specific terms to a jury instruction in order to preserve that point for appeal. Young v. Robinson, 538 So.2d 781, 783 (Miss.1989). “Further, on appeal a party may not argue that an instruction was erroneous for a reason other than the reason assigned on objection to the instruction at trial.” Id. Here, the record states that defense counsel objected to a jury instruction; however, the objection did not specifically target jury instruction S-2. Thus, we find Baker’s claim is procedurally barred.

¶ 16. Notwithstanding this procedural'bar, this claim is without merit because jury instruction S-2 was sufficient. The supreme court has stated the appellate court reviews jury instructions for abuse of discretion. Fulgham v. State, 46 So.3d 315, 323 (¶ 17) (Miss.2010). The contested jury instruction S-2 states:

The court instructs the Jury that if you find from the evidence in this case beyond a reasonable doubt that on or about September 5, 2007:
1) Kenneth Baker was over 21 years of age, date of birth being April 5, 1977[,]
2) did unlawfully, willfully, and felo-niouslyt,]
3) have sexual intercourse^]
4) -with Victoria who was under 16 years of age, date of birth being October 17, 1991, then you shall find the defendant guilty as charged.
If the State fails to prove any one or more of the above elements beyond a reasonable doubt, then you should find the defendant not guilty.

¶ 17. Baker argues the trial court committed plain error because section 97-3-65(l)(a)(iii), which provides “is not the person’s spouse,” was missing from jury instruction S-2. This element was not included in the instruction; however, we do not find that the trial court committed error in allowing this instruction.

¶ 18. We review the jury instructions given as a whole to determine whether the decision to refuse a particular instruction was made in error. Ross v. State, 22 So.3d 400, 423 (¶ 115) (Miss.Ct. App.2009) (citation omitted). If the instructions fairly state the law of the case and no injustice is created, no reversible error will be found. Id.

¶ 19. The trial court committed no error issuing jury instruction S-2. The jury instruction was sufficient because its language, when read as a whole, tracked the language contained in the indictment. And the indictment clearly notified Baker that he was being charged with statutory rape. Further, failure to include the element — “not the person’s spouse,” — within the jury instruction did not create an injustice to Baker. Baker testified at trial that he was married to another person, not Victoria, at the time of the alleged rape. We find the jury instruction was sufficient; accordingly, this issue without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY-THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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

      . To protect the identity of the minor child, she will be referred to by the fictitious name, "Victoria.”