author: CARLSON, Presiding Justice, KITCHENS, Justice,

text:
    MID-SOUTH RETINA, LLC v. Bernice CONNER.
    No. 2010-IA-00190-SCT.
    Supreme Court of Mississippi.
    Sept. 8, 2011.
    Rehearing Denied Nov. 10, 2011.

      Shelby Kirk Milam, Josiah Dennis Coleman, Oxford, attorneys for appellant.
    Daniel M. Czamanske, Jr., Joseph Har-land Webster, attorneys for appellee.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. Bernice Conner filed a medical-negligence suit against Mid-South Retina, LLC. The County Court of Coahoma County originally granted summary judgment in favor of Mid-South, finding that Conner had failed to establish the necessary element of causation. The trial court then reversed its judgment upon reconsideration and denied Mid-South’s motion for summary judgment. Aggrieved, Mid-South filed a petition for interlocutory appeal, and we granted the petition. For the reasons discussed below, we reverse the trial court’s judgment denying Mid-South’s motion for summary judgment and render judgment here in favor of Mid-South.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. In 2003, Mid-South Retina, LLC, and Dr. Brad Priester treated Bernice Conner for age-related macular degeneration. As part of Conner’s treatment, she intravenously received Visudyne, a drug that aids in cold-laser therapy for macular degeneration. During Conner’s second visit to Mid-South, Visudyne infiltrated the soft tissue around the injection site in the bend of Conner’s elbow. Dr. Priester determined that enough Visudyne had entered Conner’s bloodstream and proceeded with the cold-laser therapy. The therapy session continued without incident.

¶ 3. Visudyne is a photodynamic drug, and tissue containing the drug can easily burn if exposed to sunlight. Dr. Priester testified that, because of this side effect, he ensured that Conner’s elbow was sufficiently bandaged and covered prior to her leaving Mid-South. Shortly after leaving, Conner called Mid-South complaining that her arm was hurting. She was instructed to return to Mid-South. Upon her return, Dr. Priester sent Conner to a dermatologist. The dermatologist instructed Conner to go immediately to an emergency room. Conner did not go to the emergency room, but instead returned to her home.

¶ 4. The next day, Dr. Priester contacted Conner, and she informed him that she was still in pain. Dr. Priester instructed her to go to an emergency room. Conner went to an emergency room and was referred to a general surgeon, who prescribed pain medication and antibiotics. Conner saw the surgeon two more times in 2003, and the surgeon noted that the injury on Conner’s elbow measured less than one centimeter in size.

¶ 5. Conner filed suit against Mid-South and Dr. Priester in 2004, alleging medical negligence in the administration of Visu-dyne. The defendants filed a motion for summary judgment, arguing that Conner had failed to designate an expert witness. Conner then designated LaDonna North-ington, a registered nurse, as her only expert witness. Northington stated in her affidavit that the Mid-South nurses were negligent in failing to document fully Conner’s treatment and the Visudyne infiltration. The defendants filed a rebuttal to Conner’s designation, claiming that Conner had not established the necessary element of causation. At the summary judgment hearing, Conner conceded that summary judgment was appropriate as to Dr. Priester. On August 10, 2009, the trial court granted summary judgment on behalf of Dr. Priester and Mid-South, finding that Conner had not sufficiently established all the elements of her medical-negligence claim.

¶ 6. On August 20, 2009, Conner filed a motion for reconsideration, attaching a supplemental affidavit from Northington. Mid-South moved to strike the affidavit, arguing that Conner should not be able to correct the deficiencies in her previous affidavit through a post-judgment motion for reconsideration. The trial court found that Conner had, at that time, established all the necessary elements of her medical-negligence claim. Thus, the trial court denied Mid-South’s motion to strike the supplemental affidavit submitted by Northington, reversed its previous grant of summary judgment in favor of Mid-South, and denied Mid-South’s motion for summary judgment. Mid-South then petitioned this Court for an interlocutory appeal, and we granted Mid-South’s petition.

DISCUSSION

¶ 7. Mid-South raises three issues on interlocutory appeal: (1) whether North-ington is qualified to render an expert opinion on medical causation; (2) whether the trial court erred in denying Mid-South’s motion for summary judgment; and (3) whether the trial court erred in considering Northington’s supplemental affidavit. Because the first two issues are dispositive, we decline to address the final issue on appeal. See Berry v. Patten, 51 So.3d 934, 937 (Miss.2010). We combine our discussion of the first two issues for the purposes of today’s appeal.

WHETHER MID-SOUTH IS ENTITLED TO SUMMARY JUDGMENT BECAUSE CONNER HAS FAILED TO ESTABLISH ALL OF THE NECESSARY ELEMENTS OF HER MEDICAL-NEGLIGENCE CLAIM.

¶ 8. In order to establish a prima facie case of medical negligence, the plaintiff must prove the following elements:

(1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant’s breach of duty was a proximate cause of the plaintiffs injury, and; (4) the plaintiff was injured as a result.

McDonald v. Mem’l Hosp. at Gulfport, 8 So.3d 175, 180 (Miss.2009) (quoting Delta Reg’l Med. Ctr. v. Venton, 964 So.2d 500, 504 (Miss.2007)) (other citations omitted). In medical-negligence cases, expert testimony is generally required to survive summary judgment. McDonald, 8 So.3d at 180. Summary judgment is appropriate when the nonmoving party has failed sufficiently to establish an essential element of that party’s claim. Buckel v. Chaney, 47 So.3d 148, 153 (Miss.2010) (citations omitted).

¶ 9. Citing our recent opinion in Vaughn v. Mississippi Baptist Medical Center, 20 So.3d 645 (Miss.2009), Mid-South contends that Northington cannot offer an opinion on medical causation, and thus, Conner has failed to establish the necessary element of causation. In Vaughn, we “explicitly [held] that nurses cannot testify as to medical causation.” Id. at 652.

¶ 10. In Vaughn, the plaintiffs only expert-causation witness was a registered nurse. Id. at 651. The trial court granted the defendant’s motion for summary judgment, finding that Vaughn had failed to show how her injury was the proximate result of the defendant’s acts or omissions. Id. at 650. The trial court also struck Vaughn’s expert designation of a registered nurse, “finding that nurses could not properly offer expert testimony as to medical causation.” Id. Although we found that the trial court erred in striking all of the nurse’s testimony, we ultimately found that summary judgment was proper. Id. at 655. Citing Richardson v. Methodist Hospital of Hattiesburg, Inc., 807 So.2d 1244, 1247-48 (Miss.2002), and numerous holdings from other jurisdictions, we held that “nurses cannot testify as to medical causation.” Vaughn, 20 So.3d at 652. Accordingly, we held that the trial court in Vaughn did not err in granting summary judgment in favor of the defendant because the plaintiff had failed to establish the necessary element of causation. Id. at 653.

¶ 11. In today’s case, Conner argues that the issue of whether Northington may render an expert opinion on causation was not before the trial court and therefore is not properly before this Court on interlocutory appeal. Mid-South moved for summary judgment on October 22, 2008, arguing that it was entitled to summary judgment because Conner had failed to designate an expert witness. In response to Mid-South’s motion, Conner designated Northington, a registered nurse, as her expert witness. In November 2008, Conner submitted North-ington’s affidavit and filed a response to Mid-South’s motion for summary judgment, stating that she had now designated an expert witness and that Northington was “competent and qualified” to offer testimony. Mid-South filed a rebuttal memorandum in support of its motion for summary judgment in December 2008. The trial court granted Mid-South’s motion for summary judgment, finding that Northington was not familiar with Visu-dyne administration and that Conner had not established the necessary element of causation. The trial court entered its original order, granting Mid-South’s motion for summary judgment, in August 2009. Conner filed her motion for reconsideration, and Mid-South responded in August 2009 as well. The trial judge entered his order denying Mid-South’s motion for summary judgment upon reconsideration in January 2010. We handed down our opinion in Vaughn in October 2009 — two months after the parties had filed their last pretrial motions and responses, but three months before the trial court had ruled on the motions. Vaughn, 20 So.3d at 645.

¶ 12. The parties in today’s case were without the benefit of Vaughn during the pretrial phase mentioned above, and we recognize that our holding in Vaughn was not brought before the learned trial judge as part of the parties’ pretrial arguments. The rule in Vaughn is clear: Nurses cannot render expert opinions on medical causation. Id. at 652. Thus the relevant inquiry before us is whether this explicit rule applies to today’s appeal.

¶ 13. Generally, “all judicial decisions apply retroactively unless the Court has specifically stated the ruling is prospective.” Cleveland v. Mann, 942 So.2d 108, 113 (Miss.2006) (citing Miss. Transp. Comm’n v. Ronald Adams Contractor, Inc., 753 So.2d 1077, 1093 (Miss.2000); Morgan v. State, 703 So.2d 832, 839 (Miss.1997)). Further, “newly enunciated rules of law are applied retroactively to cases that are pending trial or that are on appeal, and not final at the time of the enunciation.” Thompson v. City of Vicksburg, 813 So.2d 717, 721 (Miss.2002) (emphasis added).

¶ 14. Understandably, Conner contends that Mid-South may not argue on appeal an issue that it did not raise before the trial court. Our precedent discussing ret-roactivity of newly announced rules of law, however, runs contrary to Conner’s assertion. In Ronald Adams Contractor, Inc., we quoted the United States Supreme Court’s discussion of three possible ways an issue of retroactivity may be resolved:

First, a decision may be made fully retroactive, applying both to the parties before the court and to all others by and against whom claims may be pressed, consistent with res judicata and procedural barriers such as statutes of limitations. This practice is overwhelmingly the norm, and is in keeping with the traditional function of the courts to decide cases before them based upon their best current understanding of the law. It also reflects the declaratory theory of law, according to which the courts are understood only to find the law, not to make it_ Second, there is the purposely prospective method of overruling, under which a new rule is applied neither to the parties in the law-making decision nor to those others against or by whom it might be applied to conduct or events occurring before that decision. The case is decided under the old law but becomes a vehicle for announcing the new, effective law with respect to all conduct occurring after the date of that decision.... This approach claims justification in its appreciation that ... to apply the new rule to parties who relied on the old one would offend basic notions of justice and fairness. But this equitable method has its own drawback: it tends to relax the force of precedent, by minimizing the costs of overruling, and thereby allows the courts to act with a freedom comparable to that of legislatures. Finally, a court may apply a new rule in the case in which it is pronounced, then return to the old one with respect to all others arising on facts predating the pronouncement. This method ... breaches the principle that litigants in similar situations should be treated the same, a fundamental component of stare decisis and the rule of law generally.

Ronald Adams Contractor, Inc., 753 So.2d at 1092-93 (quoting James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 535-37, 111 S.Ct. 2439, 2443-44, 115 L.Ed.2d 481 (1991), superseded by statute on other grounds (citations omitted)).

¶ 15. Historically, we have applied the first approach described and have applied the law as it existed at the time of appellate review. Our decisions “are presumed to have retroactive effect unless otherwise specified.” Ronald Adams Contractor, Inc., 753 So.2d at 1093 (citing Morgan, 703 So.2d at 839). In Vaughn, we did not state that our ruling was prospective. Thus it is presumably retroactive. See Ronald Adams Contractor, Inc., 753 So.2d at 1093 (citing Morgan, 703 So.2d at 839). Accordingly, we apply our holding in Vaughn with the full force of the precedent that it is.

CONCLUSION

¶ 16. Northington, Bernice Conner’s only designated expert, may not render an expert opinion on medical causation. See Vaughn, 20 So.3d at 652. Without expert testimony on medical causation, Conner has failed to establish all of the necessary elements of her medical-negligence claim. See McDonald, 8 So.3d at 180. Because Conner has failed to establish a necessary element of her claim, Mid-South is entitled to summary judgment. Accordingly, we reverse the trial court’s judgment denying Mid-South’s motion for summary judgment upon reconsideration and render judgment here in favor of Mid-South Retina, LLC.

¶ 17. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

KITCHENS, Justice,

dissenting:

¶ 18. Because I do not agree that nurses invariably should be excluded from testifying in Mississippi courts as expert witnesses on issues of medical causation, I respectfully dissent.

¶ 19. During the course of Conner’s suit against Mid-South for medical negligence associated with the intravenous (IV) dose of Visudyne administered to her on April 10, 2003, Conner designated LaDonna Northington, R.N., as her expert witness. In her affidavit, Nurse Northington attested that she was familiar with the appropriate standard of nursing care with regard to IV placement, and with complications such as infiltrations. She also attested that, based on her education and experience as a nurse and nursing professor, a review of Mid-South’s medical records, and the depositions of Dr. Priester (Conner’s treating physician at Mid-South), Bernice Conner, and Nurse Marilyn Hampton (the nurse who administered the Visudyne IV), she was of the opinion that Mid-South was negligent in the care provided to Bernice Conner on or about April 10, 2003, and that such negligence was a violation of the applicable standard of care with regard to the IV administration of Visudyne and the requisite followup care. Nurse Northington specifically noted that Mid-South’s failure to document the manner and method in which the IV was placed and monitored was below the applicable standard of care and that there was no evidence the infiltration site had been bandaged to prevent incidental exposure to sunlight. Finally, she opined to a reasonable degree of medical probability that the enumerated negligent acts had caused or contributed to the injury and scarring suffered by Conner.

¶ 20. Following the trial court’s granting of Mid-South’s motion for summary judgment, based on Conner’s failure to establish a prima facie case of medical malpractice, Conner filed a motion to reconsider with an attached supplemental affidavit from Nurse Northington. In her supplemental affidavit, Nurse North-ington opined that, based on her experience as a nurse and nursing professor, there was nothing unique or different about administering Visudyne as opposed to other IV drugs, with the exception of the need to instruct the patient to stay out of the sun. She further stated that “the risks of infiltration from the intravenous administration of this drug ... would be no different than the risk of infiltration from other intravenous drugs, except that the results of infiltration are more caustic and the need to stay out of sunlight [would be greater] if such an infiltration did occur.” Based on the medical records and the depositions of both the nurse who administered the Visudyne to Conner and Conner’s treating physician, Nurse Northington further opined that the IV administration of Visudyne was not properly monitored and that, once the infiltration had occurred, Conner’s treatment providers were negligent in having failed to cover the area and protect it from accidental exposure to sunlight. These negligent acts, according to Nurse Northington, proximately caused or contributed to Conner’s injury.

¶ 21. The trial court granted Conner’s motion to reconsider and denied Mid-South’s motion for summary judgment. Mid-South appealed, and, for the first time on appeal, argued that Nurse Northington was not qualified to serve as an expert based on this Court’s decision in Vaughn v. Miss. Baptist Med. Ctr., 20 So.3d 645 (Miss.2009). The majority acknowledges that this argument was first presented on appeal, but reasons that the rule applied retroactively to exclude Nurse Northing-ton’s expert opinion. Maj. Op. at ¶ 15.

¶ 22. Vaughn held that nurses are explicitly prohibited from testifying as to medical causation. Id. at 652. In Vaughn, I dissented, reasoning that:

[T]he issue of whether a particular nurse, by virtue of his or her knowledge, skill, experience, training or education, possesses such ability is better determined by a case-by-case inquiry than by a broad, “one-size-fits-all” judicial pontification to the effect that no nurse in the world will ever be allowed to testify as to medical causation in any Mississippi court case. As is true of any other profession, the education, experience and understanding of nurses span a broad spectrum. We should not enunciate a hard and fast rule that permanently forecloses the possibility of any nurse’s being qualified to give expert testimony on medical causation in any and all cases that may arise in the future.

Id. at 656-57 (Kitchens, J., dissenting). I echo that same reasoning in the case sub judice inasmuch as “it is the scope of the witness’ knowledge and not the artificial classification by title that should govern the threshold question of admissibility.” Brown v. Mladineo, 504 So.2d 1201, 1202 (Miss.1987) (quoting Fitzmaurice v. Flynn, 167 Conn. 609, 356 A.2d 887, 892 (1975)). Other jurisdictions in both criminal and civil cases have agreed with the premise that nurses with the “proper training, expertise, and experience are qualified to give expert opinions on medical causation in appropriate circumstances.” Velazquez v. Commonwealth of Va., 263 Va. 95, 557 S.E.2d 213, 218 (2002).

¶ 23. I find no basis in the language of Mississippi Rule of Evidence 702 “for any preference of licensed physicians for such medical testimony.” State v. White, 340 N.C. 264, 457 S.E.2d 841, 858 (1995) (holding that sexual assault nurse examiners are qualified to testify as to the cause of a physical injury despite not being licensed to diagnose illnesses or prescribe treatment). Mississippi Rule of Evidence 702 provides that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

In the case sub judice, it is clear that Nurse Northington met the requirements of Rule 702. We should not prohibit our trial judges and jurors from hearing and considering professional opinions of this quality.

¶ 24. Mississippi Rule of Civil Procedure 56(c) provides that summary judgment is proper “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.” In order to withstand summary judgment, the party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial.” Whiting v. Univ. of S. Miss., 62 So.3d 907, 914 (Miss.2011) (quoting Miss. R. Civ. P. 56(e)).

¶ 25. Nurse Northington’s expert opinion was that Conner’s injury was proximately caused by Mid-South’s breach of the applicable standard of care owed to Conner in the IV administration of Visu-dyne. Because this expert should not be excluded on the necessary element of causation, I am of the opinion that Conner did not fail to establish a prima facie case of medical negligence. In this case, sufficient evidence exists to create genuine issues of material fact as to whether Nurse Hampton, the nurse who had administered Visu-dyne to Conner at Mid-South, had breached the appropriate standard of nursing care and whether such breach proximately caused Conner’s injury. Accordingly, summary judgment was not appropriate in this case. Thus, I would affirm the trial court’s judgment denying Mid-South’s motion for summary judgment.

KING, J., JOINS THIS OPINION.

      . In finding that the trial court had erred in striking all of the nurse's testimony, we stated:
      Inasmuch as we have held that Keller could not testify as to medical causation, the trial court did not abuse its discretion in not allowing testimony from Keller that the negligent acts of Baptist nurses proximately caused Vaughn's staph infection. While the trial court did err in barring Keller’s testimony outright and striking the portion of the affidavit regarding the elements of standard of care and deviations from the nursing standard of care, this assignment of error is moot, given that we have held summary judgment in this case was properly granted.

        Id. at 655.

      . Although Mid-South did not explicitly argue before the trial court that nurses in general may not testify as to medical causation, the issue of Northington's qualifications was brought before the trial court. In its rebuttal memorandum, Mid-South argued that North-ington was not qualified to give an expert opinion on Visudyne administration. The trial court also did not address the issue of whether nurses in general may testify as to medical causation, but did find ultimately that Northington was qualified to render an expert opinion in today’s case.

      . See also Mohajer v. Commonwealth of Va., 40 Va.App. 312, 579 S.E.2d 359, 364 (2003) (finding that a sexual assault nurse examiner need not be licensed to practice medicine to offer an expert opinion on the causation of injuries resulting from an alleged sexual assault); Parris v. Uni Med, Inc., 861 S.W.2d 694, 699 (Mo.App.E.D.1993) (finding no .error in trial court allowing nurses to testify as experts on the cause and treatment of bed sores); Mellies v. Nat'l Heritage, Inc., 6 Kan.App.2d 910, 636 P.2d 215, 224 (1981) (holding that when a proper foundation is laid as to the nurse's experience with bed sores, that nurse can "qualify as an expert as to causation and as to such parts of treatment and cure that are performed by such nurse.”).

      . Our own Court of Appeals, in a criminal case in which the defendant was convicted of gratification of lust, rejected the defendant's argument that expert testimony by a sexual assault nurse examiner was erroneously admitted because it was beyond the scope of her qualifications. See Murray v. State, 20 So.3d 739, 741 (Miss.Ct.App.2009), cert. denied, 27 So.3d 404 (Miss.2010). In doing so, the court recognized that "nursing professionals routinely testify as to whether a victim’s injuries are consistent with a sexual assault.” Id. at 742 (citing Havard v. State, 988 So.2d 322, 332 (Miss.2008) (nurse testified that injuries received by minor victim were the result of sexual trauma); Adams v. State, 772 So.2d 1010, 1017 (Miss.2000) (nurse testified that the victim’s hymen was torn and that this injury was consistent with penetration by a penis, finger, or other object)). The appellate court held that the expert witness was an experienced emergency room nurse, had conducted numerous sexual assault examinations, and had personally conducted the examination of the victim; thus "her testimony assisted the jury and was both relevant and reliable.” Murray, 20 So.3d at 742.
      I cite Murray, a case in which this Court unanimously voted to deny certiorari, to illustrate that I see no distinction in how Rule 702 should be applied in a civil versus a criminal case. Vaughn has the effect of precluding nurses from testifying as to medical causation even in the context of a criminal sexual assault case. See Vaughn, 20 So.3d at 652 ("We now explicitly hold that nurses cannot testily as to medical causation.”).


source: Caselaw Access Project

author: KING, JUSTICE,

license: Public Domain

text:
    Kenneth KNIGHT v. STATE of Mississippi.
    No. 2010-KA-00770-SCT.
    Supreme Court of Mississippi.
    Sept. 8, 2011.
    Rehearing Denied Nov. 10, 2011.

      Phillip Broadhead, Oxford, Office of Indigent Appeals by Leslie S. Lee, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount Scott Stuart, attorneys for appellee.
    Before CARLSON, P.J., PIERCE and KING, JJ.
   KING, JUSTICE,

for the Court:

¶ 1. Kenneth Hugh Knight was convicted in the Pearl River County Circuit Court of possession of a controlled substance with intent to distribute while in possession of a firearm. Aggrieved, Knight appeals, raising three issues: (1) ineffective assistance of counsel, (2) the denial of his motion for a directed verdict or a judgment notwithstanding the verdict (JNOV), and (3) the denial of his motion for a new trial. Because the record is not sufficient to address Knight’s claim of ineffective assistance of counsel, we dismiss the claim without prejudice. But we affirm the circuit court’s judgment on the remaining issues.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 2, 2007, Lieutenant Chad Dorn of the Picayune Police Department was on patrol when he received instructions to be on the lookout for a stolen, green Ford Explorer. Lieutenant Dorn located what he believed to be the stolen vehicle at 615 North Burén Avenue in Picayune, Mississippi. At this point, Lieutenant Dorn called for backup; police officers Josh English and Edwin Merwin responded to the call.

¶ 3. Lieutenant Dorn checked the vehicle identification number (VIN) on the vehicle and found that it matched the VIN of the stolen vehicle that was reported by dispatch. Then, he knocked on the door of the residence in hopes of finding the driver of the vehicle. Knight answered the door. Lieutenant Dorn asked for the driver of the vehicle, and Knight brought Lisa Shoe-make to the door. Lieutenant Dorn and Shoemake stepped away from the door. He advised Shoemake of her Miranda rights and then asked about the vehicle. According to Lieutenant Dorn, Shoemake told him that the vehicle belonged to her sister and that she had borrowed it without permission.

¶ 4. Lieutenant Dorn testified that he knew Shoemake because he previously had arrested her, and she was known to have a drug problem. Thus, Lieutenant Dorn inquired as to Shoemake’s purpose at the residence. According to Lieutenant Dorn, Shoemake told him that she had purchased crack cocaine, which she had already ingested, from Knight. Acting on this information, Lieutenant Dorn ordered Officer English and Officer Merwin to get everyone out of the home and to secure the premises while he obtained a search warrant. Officer English testified that he cleared the home and detained Knight, Shoemake, Angel Case (Knight’s friend) and Knight’s thirteen-year-old son until Lieutenant Dorn returned.

¶ 5. Lieutenant Dorn returned with the search warrant and commenced to search the premises. Under the cushions of a couch, Lieutenant Dorn found a plastic baggy containing several off-white, rock-like objects, $542 in cash, and a sawed-off shotgun. Officer Bryan Dawsey of the Picayune Police Department testified that he had marked the evidence, stored it in the evidence locker, and eventually had taken the evidence to the Mississippi Crime Laboratory for testing. Chancey Bass, a forensic scientist for the Mississippi Crime Laboratory, tested the evidence. He testified that the substance was determined to be 2.6 grams of cocaine, a schedule II drug. '

¶ 6. Lieutenant Dorn arrested Knight and Case. Shoemake was not arrested for the drugs or the stolen vehicle, but she was taken in for questioning. Shoemake provided a written statement to police. According to Lieutenant Dorn, Knight declined to give a written statement, but he voluntarily gave an oral statement in which he claimed ownership of the seized cash and requested that it be returned to him.

¶ 7. At trial, Knight’s counsel stipulated to the sufficiency of the search warrant. Shoemake testified for the State. She stated that she had gone to Knight’s house to buy crack cocaine, and she had purchased $30 worth of crack cocaine twice that day. Although she did not see an exchange of drugs between Case and Knight, Shoemake stated that Case had retrieved the drugs from Knight, and then had delivered the drugs to her. On cross-examination, Shoemake acknowledged that she had pleaded guilty to possession of a controlled substance and was currently serving her sentence — five years suspended, with two years on house arrest. Defense counsel asked Shoemake whether she was a prior convicted felon, and she said “yes.” According to Shoemake, the maximum sentence for her crime was eight years, but she did not receive the maximum sentence. Shoemake denied receiving a plea deal in exchange for her testimony.

¶ 8. Case also testified for the State. She stated that Knight was a friend, and she had stayed with him at times because his home was a known place to acquire drugs. Case was not aware of Shoemake’s allegations against her-that she was distributing drugs from Knight’s home. Case testified that when the police arrived at Knight’s home, Knight was asleep on the couch, where he slept often. Case acknowledged that she initially was charged as a codefendant in Knight’s case, but she had pleaded guilty to a lesser charge of possession. She had received a nonadjudi-cated, two-year sentence with probation. But, thereafter, Case had violated her probation and was serving her sentence at the time of Knight’s trial. Case also denied that she had received a plea deal in exchange for her testimony.

¶ 9. Based on this evidence, a Pearl River County jury convicted Knight of possession of cocaine with intent to deliver or sell while in possession of a firearm. The circuit court entered Knight’s Order of Conviction on April 23, 2010. He was sentenced to thirty years in the custody of the Mississippi Department of Corrections, with twenty years suspended and ten years to serve, and twenty years of post-release supervision, with five years reporting and fifteen years nonreporting. Knight filed a Motion for JNOV or, in the Alternative, a New Trial. The circuit court denied the motion. On April 27, 2010, Knight filed a Renewed Motion for JNOV or, in the Alternative, a New Trial. The circuit court denied this motion as well. On March 6, 2010, Knight timely filed his notice of appeal.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 10. This Court analyzes claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Johnson v. State, 29 So.3d 738, 745 (¶ 20) (Miss.2009). There is a strong but rebuttable presumption that trial counsel was competent and performed within the wide range of reasonable conduct expected from counsel. Id. To rebut this presumption, the petitioner must show that “(1) his [trial] counsel’s performance was deficient, and that (2) the deficiency prejudiced him.” Id. (citing Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985)). Knight raises three claims of ineffective assistance of counsel, but these claims rest on one question: whether there was sufficient probable cause for the search warrant.

¶ 11. Knight argues that he received ineffective assistance of counsel because: (1) his trial counsel failed to investigate whether probable cause existed for the search warrant, (2) his trial counsel failed to request a suppression hearing, and (3) his trial counsel stipulated to the sufficiency of the search warrant. The State argues that Knight’s claim should not be considered on direct appeal and is more appropriate for a motion for post-conviction relief.

¶ 12. Mississippi Rule of Appellate Procedure 22(b) provides in pertinent part, that: “Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record.” We believe that the record is not sufficient to address Knight’s claim of ineffective assistance of counsel.

¶ 13. Article 3, Section 23 of the Mississippi Constitution provides, in pertinent part that: “no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.” Miss. Const, art. 3, § 23. In Petti v. State, 666 So.2d 754, 757 (Miss.1995), this Court stated that:

A search warrant may only be issued when the police have demonstrated probable cause by introducing evidence of underlying facts and circumstances before the magistrate granting the warrant. 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. The affidavit is the means of presenting to the issuing magistrate a basis upon which he may determine whether in fact probable cause exists.

(citing Barrett v. Miller, 599 So.2d 559, 566 (Miss.1992) (internal citations omitted)). When a defendant attacks a search warrant on the grounds that there was not sufficient probable cause for its issuance, the reviewing court must determine whether the magistrate’s decision was supported by substantial evidence. Petti, 666 So.2d at 757.

¶ 14. In this case, the magistrate found probable cause to issue the search warrant based on Lieutenant Dorn’s affidavit, which stated that:

On 06-02-07 at 0830 [hours,] I located a reported stolen vehicle behind the residence of 615 North Burén Ave. While conducting my investigation[,] I was advised by Lisa Shoemake[,] who was at the residence, that Kenneth Knight had been selling Crack Cocaine to various people at this residence. Lisa Shoe-make is a reliable source who has been used in the past to get information to conduct other search warrants. She gave information that Knight had the Crack hid in one of the rooms of the residence. Shoemake stated that people would come to the residence to purchase Crack Cocaine and he would make them wait while he went to an unknown location inside the residence to recover the Crack and sell it to them. [The] Picayune Police [Department] has received numerous complaints that Kenneth Knight is selling Crack at this residence and have confirmed through the Picayune Narcotic unit that they have active cases and an ongoing investigation against Knight at this time. I respectfully request that a search warrant be issued due to these facts and circumstances.

¶15. First, Knight contends that his trial counsel was ineffective because he failed to investigate whether probable cause existed for the search warrant. In support of his claim, Knight argues that Shoemake is an unreliable informant because her testimony was inconsistent, she was high on crack when she spoke to Lieutenant Dorn, and she was in possession of a stolen vehicle. Knight also notes that Lieutenant Dorn did not include in his affidavit the fact that Shoemake- was in possession of a stolen vehicle. Knight maintains that Shoemake made those statements against him to get herself out of trouble. Here, Knight attacks Shoe-make’s credibility. Knight’s trial counsel had an opportunity to cross-examine Shoe-make before the jury. Through his questioning, he raised doubts about Shoe-make’s credibility. The law is clear that issues of credibility should be resolved by the jury. Turner v. State, 3 So.3d 742, 746 (¶ 15) (Miss.2009).

1116. Knight also alleges that Lieutenant Dorn fabricated the information contained in his affidavit regarding complaints against Knight and an ongoing narcotic investigation. There is no evidence in the record which supports Knight’s allegations against Lieutenant Dorn.

¶ 17. Second, Knight argues that his trial counsel was ineffective because he failed to request a suppression hearing. Knight also argues that his trial counsel should have made a greater effort to ere-ate reasonable doubt in the State’s case. In support of his argument, Knight reiterates his claim that Shoemake is an unreliable source and that Lieutenant Dorn fabricated information in his affidavit.

¶ 18. Third, Knight argues that his trial counsel was ineffective because he stipulated to the sufficiency of the search warrant and did not attempt to disprove facts contained in Lieutenant Dorn’s affidavit. According to Knight, Lieutenant Dorn’s affidavit is clearly false, but there is nothing in the record to suggest that Lieutenant Dorn’s statements were false regarding complaints against Knight and an ongoing narcotic investigation. Knight complains that the affidavit was misleading because Lieutenant Dorn did not state that Shoemake, his informant, was in possession of a stolen vehicle when she gave him information about Knight’s alleged drug activity. This is true; that statement is not contained in the affidavit.

¶ 19. It is also true that Knight’s trial counsel stipulated that the search warrant was sufficient and legally issued. During Lieutenant Dorn’s direct examination, defense counsel objected, stating that he did not want the details of Shoemake’s statement revealed until her testimony. The prosecutor asked defense counsel if he would stipulate that Lieutenant Dorn had received enough information from Shoe-make to obtain a search warrant and that the search warrant was lawfully issued. Defense counsel agreed.

¶ 20. By stipulating to the sufficiency of the search warrant, Knight argues that his trial counsel effectively aided the prosecution and waived his personal right to object to the evidence. Knight argues that his trial counsel should have sought to have the evidence suppressed because Shoemake was an unreliable source, her statements were uncorroborated, no evidence was presented to prove that Shoe-make was reliable and had been used as a confidential informant in the past, and Lieutenant Dorn had falsified information in his affidavit.

¶ 21. Knight makes bare assertions— specifically against Lieutenant Dorn — with no supporting evidence. But his claim that Lieutenant Dorn misled the magistrate regarding Shoemake’s involvement is of some concern. Nowhere in the affidavit did Lieutenant Dorn mention that Shoe-make was in possession of a stolen vehicle and that she actually was purchasing drugs from Knight.

¶ 22. We note that the parties have not stipulated that the record is adequate to allow the Court to consider the issue, and the record does not affirmatively show ineffective assistance of counsel of constitutional dimensions. The Court has Lieutenant Dorn’s affidavit to consider, which the magistrate incorporated into his ruling. But this Court must review the totality of the circumstances surrounding the issuance of the search warrant. See Roach v. State, 7 So.3d 911, 917(11) (Miss.2009). Perhaps there is evidence outside the record that would assist the Court in reviewing Knight’s claim. Thus, out of an abundance of caution, we dismiss Knight’s ineffective-assistance-of-counsel claim without prejudice so that he may raise his claim in a properly filed motion for post-conviction relief, if he so chooses.

II. Legal Sufficiency of the Evidence

¶23. Knight argues that the circuit court erred by denying his motion for a directed verdict or a JNOV because the State failed to prove that he had sole, constructive possession of the contraband. Specifically, Knight maintains that the contraband could have belonged to either Case or Shoemake. Conversely, the State argues that the prosecution presented sufficient evidence that a reasonable jury-might find that Knight constructively possessed the drugs with intent to distribute while in possession of a firearm.

¶ 24. A motion for a directed verdict and a motion for JNOV challenge the legal sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). The circuit court must view all of the credible evidence which is consistent with the defendant’s guilt in the light most favorable to the State. Id. at (¶ 17). This Court will not disturb the circuit court’s ruling if:

the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.... Should the facts and inferences considered in a challenge to the sufficiency of the evidence ‘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 proper remedy is for the appellate court to reverse and render.

Id. at (¶ 16) (internal citations omitted).

¶ 25. Knight was charged with possession of cocaine with intent to distribute under Mississippi Code Section 41-29-139(a)(1) (Rev.2009), which provides, in pertinent part, that:

(a) Except as authorized by this article, it is unlawful for any person knowingly or intentionally:
(1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance....

Being in possession of a firearm enhances the penalty of the crime. Miss.Code Ann. § 41-29-152(1) (Rev.2009). The prosecution’s theory of the case was that Knight was in constructive possession of crack cocaine, profits from drug sales, and a sawed-off shotgun that were found underneath the cushions of his couch. Knight maintains that the State’s circumstantial evidence is insufficient to prove that he had knowing and constructive possession of the items.

¶ 26. Possession of a controlled substance may be actual or constructive. Dixon v. State, 953 So.2d 1108, 1112 (¶ 9) (Miss.2007). Constructive possession may be established where the evidence, considered under the totality of the circumstances, shows that the defendant knowingly exercised control over the contraband. Id. (quoting Curry v. State, 249 So.2d 414, 416 (1971)). The defendant’s proximity to the drugs is a factor in establishing constructive possession, but it is not determinative. Id. Other incriminating circumstances must be present to establish constructive possession. Id. For instance:

this Court has affirmed a conviction based on constructive possession when: (1) The defendant owned the premises where the drugs were found and failed to rebut the presumption that he was in control of such premises and the substances within; or (2) the defendant did not own the premises but was sufficiently tied to the drugs found there by (a) exerting control over the premises when he knew or should have known of the presence of the substance or (b) placing himself in the midst of items implicating his participation in the processing of the substance.

Id. at 1113 (¶ 11).

¶ 27. At trial, Shoemake testified that she had purchased crack cocaine from Knight twice at his home that day. Case testified that Knight was asleep on the couch before the police arrived and that Knight often slept on the couch. When executing the search warrant, Lieutenant Dorn found a plastic baggy containing several off-white, rock-like objects, $542 in cash, and a sawed-off shotgun under the cushions of the couch. Although Knight denied ownership of the drugs, he claimed ownership of the money and requested that it be returned to him. Lieutenant Dorn testified that he believed that the money was profit from drug sales. Knight maintains that the fact that he claimed ownership of the money does not prove that he also owned the drugs and sawed-off shotgun.

¶ 28. Shoemake’s testimony established that Knight sold drugs from his home. Case’s testimony put Knight at the spot where Lieutenant Dorn found the hidden contraband. Moreover, Knight’s admission to Lieutenant Dorn that the money belonged to him could lead a reasonable juror to believe that Knight knew that the contraband was stashed in the couch and that it also belonged to him.

¶ 29. Viewing this evidence in the light most favorable to the State, there is sufficient evidence to convict Knight of possession of cocaine with intent to distribute while in possession of a firearm. Any reasonable and fair-minded juror could have found that the State had proved all elements of the offense beyond a reasonable doubt. Accordingly, we find that the circuit court did not err by denying Knight’s motion for a directed verdict and his motion for a JNOV. This issue is without merit.

III. Weight of the Evidence

¶30. Knight argues that the verdict was against the overwhelming weight of the evidence because Shoemake and Case were unreliable witnesses. In support of this argument, Knight explains that both women received plea deals in exchange for their testimony. He further states that Shoemake made false accusations against him to get herself out of trouble, she is a prior convicted felon, and her testimony was inconsistent. Conversely, the State argues that witness credibility is an issue for the jury to decide, and the circuit court did not err by denying Knight’s motion for a new trial.

¶ 31. A motion for a new trial challenges the weight of the evidence. Bush, 895 So.2d at 844 (¶ 18). On appeal, we will not disturb the circuit court’s denial of a motion for a new trial unless “[the verdict] is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id.

¶ 32. Knight’s argument attacks Shoe-make’s and Cases’s credibility. The law is clear that it is within the jury’s province to determine the weight and credibility to give to the evidence and to resolve all conflicts in the evidence. Turner, 3 So.3d at 746 (¶ 15). The jury heard evidence that Shoemake and Case had pleaded guilty to certain charges and had received what Knight believes to be light sentences. But Shoemake and Case also maintained that they did not receive a plea deal in exchange for their testimony.

¶ 33. Knight complains that Shoemake’s testimony was inconsistent regarding from whom she purchased the drugs — Case or Knight — and where the transaction took place — the bedroom or the living room. Knight complains that Shoemake did not see any exchange of money and drugs between him and Case. Knight also complains that Shoemake lied about who owned the stolen vehicle. Still, whether Shoemake’s accusations against Knight were true or false and any inconsistencies in Shoemake’s testimony also are issues for the jury to resolve.

¶ 34. Viewing the evidence in the light most favorable to the verdict, we do not find that the verdict was against the overwhelming weight of the evidence. The jury resolved any conflicts in the evidence in favor of Knight’s conviction. Because there is no evidence that would call the jury’s judgment into question, we find that the circuit court did not err by denying Knight’s motion for a new trial. This issue is without merit.

CONCLUSION

¶ 35. Because the record is not sufficient to address Knight’s claim of ineffective assistance of counsel, we dismiss the claim without prejudice so that Knight may raise his claim in a properly filed motion for post-conviction relief, if he so chooses.

¶ 36. Viewing the evidence in the light most favorable to the State, sufficient evidence exists upon which the jury could have found beyond a reasonable doubt that Knight had constructive possession of the contraband and that he committed every element of the crime. Thus, the circuit court did not err by denying Knight’s motion for a directed verdict or motion for a JNOV.

¶ 37. Also, Knight’s claim regarding the weight of the evidence must fail. Knight attacks Shoemake’s and Case’s credibility, which are issues for the jury to resolve. Therefore, the circuit court did not err by denying Knight’s motion for a new trial. We affirm the judgment of the Pearl River County Circuit Court.

¶ 38. CONVICTION OF POSSESSION OF A SCHEDULE II CONTROLLED SUBSTANCE, COCAINE, WITH INTENT TO DELIVER OR SELL WHILE IN POSSESSION OF A FIREARM, WITH CONDITIONS, AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN (10) YEARS TO SERVE AND TWENTY (20) YEARS SUSPENDED, AND TWENTY (20) YEARS OF POST-RELEASE SUPERVISION, WITH FIVE (5) YEARS REPORTING AND FIFTEEN (15) YEARS NON-REPORTING, AND PAY ALL COURT COSTS, AFFIRMED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. LAMAR, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In his ineffective-assistance-of-counsel claim, Knight challenges the affidavit executed by Lieutenant Dorn to obtain the search warrant. The details of the affidavit will be discussed in our analysis of the issue.

      . In her written statement to the police, Shoe-make stated that she had bought drugs from Knight. At trial, Shoemake testified that she had bought drugs from Binight but that Case actually had delivered the drugs to her.

      . Lieutenant Dorn testified that Shoemake had told him that the vehicle belonged to her sister. At trial, Shoemake said the car belonged to her aunt’s daughter-in-law.


author: CHANDLER, Justice,

text:
    Cliff HENSLEY v. STATE of Mississippi.
    No. 2010-KA-01311-SCT.
    Supreme Court of Mississippi.
    Sept. 8, 2011.
    Rehearing Denied Nov. 10, 2011.

      Office of Indigent Appeals by W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before DICKINSON, P.J., CHANDLER and KING, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. On May 11, 2010, a Tishomingo County jury found Cliff Hensley (Cliff) guilty of conspiracy to manufacture methamphetamine in violation of Mississippi Code Sections 41-29-139 and 97-1-1. Cliff was sentenced as a habitual offender to a term of twenty years in the custody of the Mississippi Department of Corrections (MDOC). In this appeal, Cliff asserts his sentence of twenty years is an improper sentence under the governing statutes.

FACTS AND PROCEEDINGS BELOW

¶ 2. Jeff Palmer, former commander of the Stateline Narcotics Task Force, was working closely with the Mississippi Bureau of Narcotics and the narcotics officers based out of McNairy County, Tennessee, at the time of Cliffs arrest. Palmer testified that an individual buying pseu-doephedrine would have to show a photo ID and sign a list identifying what kind of pills and how many dosage units were being purchased. Palmer helped create a list for the Stateline Narcotics Task Force of individuals who were known to cross state lines to purchase pseudoephedrine. This list was placed at pharmacies, and the pharmacists or pharmacy technicians would contact the task force when an individual on the list bought pseudoephedrine.

¶ 3. On June 20, 2007, Palmer received a phone call from the Kroger pharmacy in Corinth, Mississippi, indicating that a Jeff Hensley (Jeff), who was on the pseu-doephedrine list, had entered the store requesting to buy pseudoephedrine. Palmer instructed the pharmacist to sell the pseudoephedrine to Jeff. Palmer then contacted Ben Caldwell, a Corinth Police Department detective, to help conduct surveillance of the Kroger parking lot as Jeff was leaving Kroger. While Palmer and Caldwell were conducting surveillance, Jeff and another individual traveled to Burns-ville, made a loop through a closed pharmacy parking lot, and continued east on Highway 72. Shortly thereafter, Palmer and Caldwell conducted a traffic stop of the car.

¶ 4. Jeff was driving the vehicle, and Cliff was riding in the passenger seat at the time of the stop. Palmer and Caldwell separated Cliff and Jeff, asked them questions, and received contradictory answers concerning their trip to Alabama. Jeff gave Palmer permission to search the vehicle. A plastic container containing around $100 in cash and forty-eight loose pseu-doephedrine pills was found. Two empty boxes of pseudoephedrine and a Kroger receipt also were found.

¶ 5. Cliff and Jeff were arrested and transported to the Tishomingo County Sheriffs Department. After reading Cliff and Jeff their Miranda rights, Palmer received a written statement from Cliff. Cliff gave Palmer the information, and Palmer made a written statement. Cliff signed the statement agreeing with all facts contained in the statement. The statement is as follows:

During the past month, my brother, Jeff Hensley and I, have been purchasing pseudoephedrine pills. I have bought pills at Walgreen’s in Corinth and Kroger in Corinth. I have bought some at Rite Aid in Selmer, Tennessee, a couple of weeks ago. The pills I buy I give to Jeff. Jeff carries the pills to somebody that cooks meth. I am currently out on bond in McNairy County, Tennessee, for possession of meth. The last time I used meth was a couple of days ago.
Today, Jeff and I rode to Corinth. Jeff bought two boxes of pseudoephd-rine pills at Kroger. I popped the pills out and put them in a plastic container with our money. Jeff told me about a store in Burnsville, and we went there. The store was closed. We were headed to Alabama to buy some more pills when we were pulled over.

¶ 6. Prior to the traffic stop, the officers did not know Cliff was in the vehicle, but Cliffs name was also on the list of individuals purchasing pseudoephedrine on a routine basis. Jeff also gave a statement that explained their specific actions in attempting to buy pills at several different pharmacies the day they were arrested.

¶ 7. At trial, after Palmer’s testimony explaining how the brothers’ statements were obtained, the State moved, outside the presence of the jury, to enter into evidence certified copies of Cliffs prior convictions. The State argued the convictions were to be introduced under Mississippi Rule of Evidence Rule 404(b) to show Cliffs purpose in purchasing and being involved in the purchase of pseudoephed-rine pills for the manufacture of methamphetamine. The Court ruled that the pri- or convictions could be admitted to show Cliffs motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident under Rule 404(b). The State prepared a limiting instruction to accompany these prior convictions.

¶ 8. Alicia Waldrop, a forensic drug analysis expert, testified that the pills found with Cliff and Jeff were pseudoephedrine. After Palmer and Waldrop each concluded their testimony, the State rested, and the defense moved for a directed verdict. The defense argued the State was unable to prove that there had been an agreement on June 20, 2007, to manufacture methamphetamine. The defense also argued that Hensley’s indictment should have specified Section 41-29-815, which bars manufacture of methamphetamine, rather than Section 41-29-139, which bars the manufacture of a controlled substance. See Miss.Code Ann. § 41-29-315, § 41-29-139 (Rev.2009). The motion for directed verdict was denied.

¶ 9. The State then moved to amend the indictment to charge Cliff as a habitual offender. The motion previously had been filed, and defense counsel had been given notice of the motion. The judge granted the motion. After putting on no witnesses, the defense rested. The jury found Cliff guilty of conspiracy to manufacture methamphetamine. The trial judge, finding that Cliff had been convicted three times previously of felony crimes and sentenced on each conviction to separate terms of one year or more, sentenced Cliff as a habitual offender pursuant to Mississippi Code Section 99-19-81 to twenty years in the custody of the MDOC. See Miss.Code Ann. § 99-19-81 (Rev.2007).

DISCUSSION

WHETHER THE SENTENCE OF TWENTY YEARS AS A HABITUAL OFFENDER WAS AN IMPROPER SENTENCE FOR CONVICTION OF CONSPIRACY TO MANUFACTURE A CONTROLLED SUBSTANCE UNDER THE MISSISSIPPI CODE SECTIONS LISTED IN THE INDICTMENT.

¶ 10. Cliff argues that his sentence of twenty years exceeded the time allowed by the governing statutes. “The imposition of a sentence is within the discretion of the trial court, and this Court will not review the sentence, if it is within the limits prescribed by statute.” Reynolds v. State, 585 So.2d 753, 756 (Miss.1991) (citing Reed v. State, 536 So.2d 1336, 1339 (Miss.1988)). This Court will not disturb a sentence if it does not exceed the maximum term allowed by statute. Robinson v. State, 966 So.2d 209, 214-15 (Miss.Ct.App.2007) (citing Fleming v. State, 604 So.2d 280, 302 (Miss.1992)) (citing Adams v. State, 410 So.2d 1332, 1333-34 (Miss.1982)).

¶ 11. The indictment charged Cliff with conspiracy to manufacture methamphetamine, a Schedule II controlled substance, in violation of Mississippi Code Sections 97-1-1 and 41-29-139(b)(l). Mississippi Code Section 97-1-1 defines conspiracy generally and provides, in relevant part:

(1) If two (2) or more persons conspire
(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 both.

Miss.Code Ann. § 97-1-1 (Rev.2006). The statute also provides enhanced sentencing for specific conspiracy crimes. Section 97-1-1(3) states:

Where the crime conspired to be committed is capital murder or murder as defined by law or is a violation of Section 41 — 29—139(b)(1), Section 41-29-139(c)(2)(D) or Section 41-29-313(1), being provisions of the Uniform Controlled Substances Law, the offense shall be punishable by a fine of not more than five hundred thousand dollars ($500,-000.00) or by imprisonment for not more than twenty (20) years, or by both.

Miss.Code Ann. § 97-1-1(3) (Rev.2006).

¶ 12. Mississippi Code Section 41-29-139 states, in relevant part:

(a) Except as authorized by this article, it is unlawful for any person knowingly or intentionally:
(1) to sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense a controlled substance.
(b) Except as otherwise provided in subsections (f) and (g) of this section or in Section 41-29-142, any person who violates subsection (a) of this section shall be sentenced as follows:
(1) In the case of controlled substances classified in Schedule I or II, as set out in Sections 41-29-113 and 41-29-115, except thirty (30) grams or less of marihuana, and except a first offender as defined in Section 41-29-149(e) who violates subsection (a) of this section with respect to less than one (1) kilogram but more than thirty (30) grams of marihuana, such person may, upon conviction, be imprisoned for not more than thirty (30) years and shall be fined not less than five thousand dollars ($5,000.00) nor more than one million dollars ($1,000,-000.00), or both.

Miss.Code Ann. § 41-29-139 (Rev.2009).

¶ 13. Cliff argues that he cannot be found guilty of conspiring to violate Section 41 — 29—139(b)(1) because Section 41-29-139(b)(l) is solely a sentencing statute. Therefore, he argues, he is not eligible for enhanced sentencing under Section 97-1-1(3). An almost identical argument was advanced in Lane v. State, 562 So.2d 1235, 1237 (Miss.1990). Lane was found guilty of conspiracy to possess cocaine with the intent to sell, barter, transfer, or distribute the same, and the trial court sentenced him pursuant to Section 97-1-1(3) for conspiracy to violate Section 41 — 29—139(b)(1). Id. at 1236. Like Cliff, Lane argued that he could not have committed conspiracy to violate Section 41 — 29—139(b)(1) because it proscribes no criminal conduct, but is a sentencing statute. Id. at 1237. Section 41-29-139(b)(l) states the method by which one who is in violation of Section 41-29-139(a) may be sentenced. Specifically, it states “any person who violates subsection (a) of this section shall be sentenced as follows.” Miss.Code Ann. § 41-29-139 (Rev.2006). This Court rejected Lane’s argument, stating:

Section 41-29-139(a)(l) is merely the provision that defines the prohibited acts and § 41 — 29—139(b)(1) is the sentencing provision for sub-section (a). Lane was therefore, indicted under the correct statute. The penalty section for a violation of (a)(1) is in section (b)(1). The discrepancy in the code section is because the conspiracy statute section dealing with enhanced sentencing for controlled substances, § 97-1-1, directly refers to the sentencing provision under § 41-29-139. Lane was convicted for a violation of the conspiracy statute and his conspiracy was to commit a crime which has an enhanced sentencing provision for controlled substances. Therefore, the circuit judge acted well within the law when he sentenced Lane to twenty (20) years.

Id. at 1237-38. Because Cliff, like Lane, “was convicted for a violation of the conspiracy statute and his conspiracy was to commit a crime which has an enhanced sentencing provision for controlled substances” under Section 41 — 29—139(b)(1), the trial court properly sentenced him under Section 97-1-1(3), which provides a maximum sentence of twenty years.

¶ 14. Cliffs status as a habitual offender mandated that he receive the maximum term of imprisonment without eligibility for probation or parole. The State timely moved to deem Cliff a habitual offender based on his prior felony convictions. The trial court granted the State’s motion to amend the indictment pursuant to Section 99-19-81. Mississippi Code Section 99-19-81 states:

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

Miss.Code Ann. § 99-19-81 (Rev.2007). The order classifying Cliff as a habitual offender required the trial court to sentence Cliff to the maximum term for the crime of conspiracy to manufacture methamphetamine. Because Section 97-1-1(3) provides a maximum twenty-year sentence for those convicted of conspiracy in violation of Section 41 — 29—139(b)(1), Cliffs sentence is proper.

CONCLUSION

¶ 15. Because Cliff was properly sentenced under Mississippi Code Sections 97-1-1(3) and 99-19-81, his conviction and sentence are affirmed.

¶ 16. CONVICTION OF CONSPIRACY TO MANUFACTURE METHAMPHETAMINE AND SENTENCE OF TWENTY (20) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE SHALL NOT BE REDUCED OR SUSPENDED NOR SHALL APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION. APPELLANT SHALL PAY COSTS OF $320.50 AND A 2% BOND FEE OF $200.00.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, PIERCE AND KING, JJ., CONCUR.

      . The Stateline Narcotics Task Force consisted of the Iuka Police Department, Tishomingo County Sheriff's Department, Corinth Police Department, and the Alcorn County Sheriff’s Department. The task force no longer exists.

      . Pseudoephedrine is essential to the manufacture of methamphetamine.

      . Palmer testified that pseudoephedrine pills are often emptied from the packaging so the pills will be easier to hide or to begin the “break down” process necessary to include pseudoephedrine in methamphetamine.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: DICKINSON, Presiding Justice, KITCHENS, Justice, CHANDLER, Justice,

text:
    Justin David SHAFFER a/k/a Justin David Schaffer v. STATE of Mississippi.
    No. 2009-CT-00151-SCT.
    Supreme Court of Mississippi.
    Oct. 27, 2011.

      Jane E. Tucker, appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. Justin David Shaffer was convicted of child-exploitation for soliciting sex from a twenty-nine-year-old female who he thought was thirteen. He argued to the Court of Appeals that he could not be guilty of child-exploitation because no child had been involved in the sting. The Court of Appeals agreed, but reversed and remanded for Shaffer to be sentenced for attempted child-exploitation — a crime for which he was neither indicted nor tried. Because the actual attempt to exploit a child violates the child-exploitation statute, we reverse the Court of Appeals and reinstate and affirm Shaffer’s conviction and sentence.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Twenty-nine-year-old Deanna Doolittle attempted to catch sexual predators on the internet by pretending to be thirteen-year-old “Chloe.” She developed a two-month internet relationship with Shaffer, finally agreeing to meet with him at a church in Byram, Mississippi, to have sex. When Shaffer arrived at the church, he was arrested and later indicted and convicted for exploitation of a child.

¶ 3. Because no actual child was involved in the sting, the Court of Appeals reversed and remanded for Shaffer to be sentenced for attempted child exploitation. Shaffer petitioned this Court for a writ of certiora-ri, which we granted. We reverse the Court of Appeals and affirm Shaffer’s conviction and sentence.

ANALYSIS

I.

¶ 4. Mississippi’s child-exploitation statute makes it illegal for anyone to use “any means including a computer” to “knowingly ... solicit ... a child to meet with the person for purpose of engaging in sexually explicit conduct.” Solicitation is sufficient to violate the statute.

¶ 5. “Solicit” is defined as “the act or an instance of requesting or seeking to obtain something.” And whether the thing solicited actually exists is irrelevant. For instance, a solicitation for money from a pennyless pauper is nonetheless a solicitation. So, Mississippi’s child-exploitation statute is violated when one attempts to exploit a child. Stated another way, Mississippi has no crime of attempted child-exploitation because an attempt to exploit a child is, itself, child-exploitation.

¶ 6. Shaffer clearly was “seeking to obtain” sex from a child when he entered a Yahoo! chat room and began an online relationship with Chloe. These sexually-explicit chats led to a phone conversation in which Shaffer convinced Chloe to meet him at a church in Byram, Mississippi. Shaffer will not now be heard to claim that his mistaken understanding of Chloe’s age mitigates his attempt to have sex with a minor.

¶ 7. The act of solicitation does not require that the thing solicited even exists. For instance, when an owner “solicits” bids from potential contractors, no bids exist at the time of the solicitation — and bids may never exist. And the submission of a deficient bid by a contractor does not change the fact that a bid was solicited. Both Shaffer’s and the owner’s solicitations were complete when the solicitor made it known what they were looking for. Shaffer completed the crime of exploitation of a minor when he solicited sex from a minor — whether or not the person he was talking with was actually a minor.

¶ 8. This is the first time we have addressed this issue, but our decision is in concert with other jurisdictions. For instance, in United States v. Farner, the defendant, Farner, was convicted under federal law for attempting to entice and persuade a minor to engage in criminal sexual activity, even though he incorrectly believed he was making arrangements to meet a fourteen-year-old girl named “Cindy” to engage in sexual activity.

¶ 9. The Fifth Circuit held that Farner had violated 18 U.S.C. § 2422(b), even though “Cindy” was an adult FBI agent. The Court stated, “[djefendant Farner’s scheme, if fully carried out as he ‘desired’ or ‘planned,’ was not to engage in sexual relations with an adult FBI officer. By his own stipulation, the person whom he desired to entice was a 14-year-old girl. The only reason he failed was because the true facts were not as he believed them to be.”

¶ 10. The Minnesota Court of Appeals stated in State v. Coonrod that it would not read into the law a requirement that an actual child be used in a sting operations as part of a police investigation. The Minnesota court compared such sting operations to undercover drug and prostitution decoys, stating that it would be a real “consternation” to use actual prostitutes and drug users. We agree.

CONCLUSION

¶ 11. We find that Shaffer committed the crime of exploitation of a child when he solicited sex from “Chloe,” so we reverse the Court of Appeals’ judgment, and we reinstate and affirm the trial court’s conviction and sentence.

¶ 12. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE GREENE COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED. CONVICTION OF EXPLOITATION OF A CHILD AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE BENEFIT OF PAROLE, PAY COSTS OF COURT AND A FINE OF $50,000, WITH CONDITIONS, AFFIRMED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J. KING, J., NOT PARTICIPATING.

KITCHENS, Justice,

dissenting:

¶ 13. I respectfully dissent from the decision of my esteemed colleagues in the majority that Shaffer’s conviction of exploitation of a child should be affirmed. I agree with the conclusion of the Court of Appeals that the State failed to prove beyond a reasonable doubt the elements of the crime, as stated in the indictment and as found in the plain language of Mississippi Code Section 97-5-33(6) (Rev.2006). Shaffer v. State, 72 So.3d 1090, 1094-97 (Miss.Ct.App. Sept.14, 2010). Accordingly, I believe that, in the circumstances, the proper course is for us to reverse the conviction and render judgment in favor of Shaffer.

The elements of the crime as charged in the indictment

¶ 14. Justin David Shaffer was indicted on September 21, 2006, for exploitation of a child and possession of a weapon by a convicted felon. Count I of the indictment is as follows:

Justin David Shaffer ... on or between June 29, 2006 through July 9, 2006, did unlawfully, willfully, and feloniously through the use of messaging sent via a computer and cellular telephone knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order a child under the age of 18 years, to meet with him for the purpose of engaging in sexually explicit conduct....

(Emphasis added.) Accordingly, the State included “a child under the age of [eighteen] years” as a material element of the crime charged in the indictment. In so doing, the State took upon itself the obligation of proving this allegation beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 362, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970) (declaring beyond a reasonable doubt as the standard of proof in criminal cases) (citations omitted).

¶ 15. Moreover, this indictment failed to put Shaffer on sufficient notice that his defense, namely that he had solicited an adult rather than a child under the age of eighteen, would be unavailable to him at trial. See Spicer v. State, 921 So.2d 292, 319 (Miss.2006) (“The purpose of an indictment is to furnish the defendants notice and a reasonable description of the charges against them so that they may prepare their defense.”) (citing Williams v. State, 445 So.2d 798, 804 (Miss.1984)). Shaffer unsuccessfully argued this before the trial court in his Motion for Directed Verdict.

¶ 16. The majority concludes that Shaffer was seeking to obtain sex from a child, and that he “will not now be heard to claim that his mistaken understanding of Chloe’s age mitigates his attempt to have sex with a minor.” Maj. Op. at ¶ 6. This is contrary to established law, given that the State failed to prove beyond a reasonable doubt the element “a child under the age of [eighteen] years,” as specifically and unequivocally charged in the indictment. See In re Winship, 397 U.S. at 362, 90 S.Ct. at 1071; see also Talley v. State, 174 Miss. 349, 164 So. 771 (1935) (“[A] person cannot be indicted for one offense and convicted upon evidence of ... a different offense.”). It logically follows that one cannot be convicted, as here, upon evidence which constitutes no crime at all, i.e., soliciting an adult for the purpose of engaging in sexually explicit conduct.

¶ 17. In Mississippi, when a duly constituted grand jury formally charges a person with a crime, the charging document is called a true bill of indictment. Respecting the grand jurors’ charging function, they are under oath that they will “true presentment make,” and that they will “present the truth, the whole truth, and nothing but the truth.... ” Miss.Code Ann. § 13-5-45 (Rev.2002). In presenting, via indictment, that Shaffer sought to solicit a child under the age of [eighteen] years to engage in sexual conduct with him, when the undisputed truth is that the person to whom Shaffer was being accused of making such overtures was, at all relevant times, an adult, the indictment, as written, fell short of presenting the truth, the whole truth, and nothing but the truth; it simply was not true that the person allegedly solicited by Shaffer was a minor child “under the age of [eighteen] years,” as the indictment plainly alleges.

¶ 18. Based on the State’s theory of the case and its proof, as presented at trial, the correct charge should have been attempted exploitation of a child. The State adduced considerable evidence to the effect that Shaffer had engaged in multiple overt acts with a view toward sexual activity with the several adult women with whom he was communicating (none of whom was a sworn law enforcement officer), all the while believing, albeit mistakenly, that he was communicating with a child under the age of eighteen years.

¶ 19. Had the State incorporated into the grand jury’s indictment appropriate language from Mississippi Code Section 97-1-7 (Rev.2006), Mississippi’s longstanding general attempt statute, coupled with appropriate language from Section 97-5-33(6), Shaffer could have been prosecuted for unlawfully and feloniously attempting to solicit a child under the age of eighteen years to engage in sexually explicit conduct with him, and, if convicted, “... punished for a period or for an amount not greater than is prescribed for the actual commission of the offense so attempted.” Miss.Code Ann. § 97-1-7 (Rev.2006).

¶20. The Court of Appeals held that the indictment insufficiently charged Shaffer with the crime of exploitation of a child, but that Shaffer could be adjudged guilty of attempted exploitation under the “direct-remand rule” and without further indictment pursuant to Mississippi Code Section 99-19-5 (Rev.2007). Shaffer, 72 So.3d at 1097-98. The direct-remand rule provides that “when the jury convicts of a greater offense, which is invalidated on appeal for want of sufficiency of the evidence, no new trial is required!,] and the defendant may be remanded for sentencing upon the lesser included offense where the proof establishes proof of the lesser offense.” Shields v. State, 722 So.2d 584, 585 (Miss.1998) (citations omitted). Mississippi Code Section 99-19-5 (Rev.2007) states:

On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose.

¶ 21. I disagree with the conclusion that an attempted solicitation of a child is a lesser-included offense where punishment under the general attempt statute “shall be ... for an amount not greater than is prescribed for the actual commission of the offense so attempted.” Miss.Code Ann. § 97-1-7 (Rev.2006). Moreover, the plain language of Section 99-19-5 does not mention appellate courts, but rather provides that “the jury may find the defendant guilty of ... any attempt to commit the same offense” without including an additional count in the indictment. (Emphasis added.) This Court has never held that an attempted crime is a lesser-included offense of the completed crime and, thus, subject to the direct-remand rule. Shaffer moved for a directed verdict at the close of the State’s case, based on his contention that the State had failed to prove all of the elements pled in the indictment beyond a reasonable doubt, a position in which he clearly was correct. His motion should have been sustained. Accordingly, remand for sentencing under the general attempt statute, Mississippi Code Section 97-1-7 (Rev.2006), is not the appropriate disposition of this case.

¶ 22. The State charged that Shaffer actually had solicited sexually explicit interaction with a child under the age of eighteen years, but its proof was at considerable variance with the charging document on which the case was tried. The jury was instructed that the State was required to prove, inter alia, the element “a child under the age of eighteen years,” and that this, along with the other material elements of the crime charged, had to be proved beyond a reasonable doubt. However, that material element of the crime charged was not proven at all, and, instead, the proof adduced was that Shaffer’s solicitation, in truth, was directed to adults, not to a child under the age of eighteen years.

¶23. Shaffer argued in the Court of Appeals that the evidence was insufficient to prove beyond a reasonable doubt every element of the crime with which he was charged. Accordingly, “the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under circumstances that every element of the offense existed.” Coleman v. State, 947 So.2d 878, 881 (Miss.2006) (citations omitted). “Should the facts and inferences considered in a challenge to the sufficiency of the evidence ‘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 proper remedy is for the appellate court to reverse and render.” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 24. It is uncontroverted that, during the course of soliciting “Chloe” for sexual activity, Shaffer, in actuality, was chatting with an adult woman via computer and talking with two adult women on separate occasions via cellular telephone, all of whom he believed to be one thirteen-year-old girl. The fact that the women with whom he actually conversed were adults favors the defendant on the element of “a child under the age of [eighteen] years” with such “sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty” of exploitation of a child. Bush, 895 So.2d at 843. Thus, when Shaffer moved for a directed verdict at the close of the State’s case-in-chief, the trial court should have granted his motion. Shaffer renewed his objections post-trial in his motion for judgment notwithstanding the verdict, wherein he argued that the trial court had failed to instruct the jury that his was an attempted crime, but instead had instructed the jury as to the elements of the completed crime charged, including the element “a child under the age of eighteen years.” Again, the trial court should have granted the motion for directed verdict, or alternatively, should have granted Shaffer judgment notwithstanding the verdict (JNOV). Accordingly, in the posture that this case was presented to us on appeal, with the State’s having failed to prove Shaffer guilty of the offense with which he was charged in the indictment, the conviction should be reversed and rendered.

The plain language of Section 97-5-33(6)

¶ 25. At the time of Shaffer’s indictment, the statute under which the charge was prosecuted, Mississippi Code Section 97-5-33(6) (Rev.2006), provided: “No person shall, by any means including computer, knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order a child to meet with the defendant or any other person for the purpose of engaging in sexually explicit conduct.” (Emphasis added.) The trial court instructed the jury that a child meant a person “under the age of eighteen years.” This was in keeping with the definition found in Mississippi Code Section 97-5-31(a) (Rev.2006), which reads: “As used in Sections 97-5-33 through 97-5-37, the following words and phrases shall have the meanings given to them in this section: ‘Child’ means any individual who has not attained the age of eighteen (18) years.”

¶ 26. Firmly established Mississippi law dictates:

[C]riminal statutes are to be strictly construed against the State and liberally in favor of the accused. McLamb v. State, 456 So.2d 743, 745 (Miss.1984). When the words of a statute are plain and unambiguous there is no room for interpretation or construction, and we apply the statute according to the meaning of those words. Harrison v. State, 800 So.2d 1134, 1137 (Miss.2001). It is only when a statute is unclear or ambiguous that we look beyond the language of the statute to determine its meaning. Id. (citing Kerr-McGee Chem. Corp. v. Buelow, 670 So.2d 12, 17 (Miss.1995); Allred v. Webb, 641 So.2d 1218, 1222 (Miss.1994); Clark v. State ex rel. Miss. State Med. Ass’n, 381 So.2d 1046, 1048 (Miss.1980)).

Coleman, 947 So.2d at 881. The majority has impermissibly altered the plain meaning of the word child in Section 97-5-33(6) to include an adult. This Court “may not enlarge or restrict a statute where the meaning of the statute is clear.” Gilmer v. State, 955 So.2d 829, 833 (Miss.2007) (citing State v. Traylor, 100 Miss. 544, 558-59, 56 So. 521, 523 (1911)).

¶ 27. The State argued to the trial court and to the Court of Appeals that Mississippi Code Section 97-5-33(8) is to be read in conjunction with Section 97-5-33(6) and that Subsection 8 removed the requirement that the criminal conduct be directed at an actual child. Before its amendment in 2007, Section 97-5-33(8) read as follows: “The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of the offense under this section shall not constitute a defense to a prosecution under this section.” Miss.Code Ann. § 97-5-33 (Rev.2006). Thus, the plain and unambiguous meaning of Section 97-5-33(8) as applied to the indictment in the present case would have denied Shaffer his theory of defense only if an undercover operative or law enforcement officer had been involved in the detection and investigation of his knowingly having enticed, induced, persuaded, seduced, solicited, advised, coerced, or ordered “a child under the age of [eighteen] years, to meet with him for the purpose of engaging in sexually explicit conduct.” To the contrary, this does not remove the requisite element, as pled in this indictment, that the crime must have been directed at an actual child.

¶ 28. The State further argued in its brief that the 2007 amendment served only to clarify that the legislature had always intended to utilize Section 97-5-33(8) to preclude the defense that the crime was not directed at an actual child. The 2007 amendment to Section 97-5-33(8) provides:

The fact that an undercover operative or law enforcement officer posed as a child or was involved in any other manner in the detection and investigation of an offense under this section shall not constitute a defense to a prosecution under this section.

Miss.Code Ann. § 97-5-33(8) (Supp.2011) (emphasis added). Section 97-5-33(8) as amended in 2007 does not apply, however, because the alleged conduct giving rise to the crime with which Shaffer was charged occurred between June 29, 2006, and July 9, 2006. To apply the 2007 amendment in the present case would result in Shaffer’s having been prosecuted under an ex post facto law. An ex post facto law is one which “punishfes] as a crime an act previously committed, which was innocent when done ... make[s] more burdensome the punishment for a crime, after its commission ... [or] deprivefs] one charged with [a] crime of any defense available according to law at the time when the act was committed. Collins v. Youngblood, 497 U.S. 37, 52, 110 S.Ct. 2715, 2724, 111 L.Ed.2d 30 (1990). See U.S. Const, art. I, § 10, cl. 1.

¶ 29. The majority has interpreted the word child, found in Mississippi Code Section 97-5-33(6), to include an adult posing as a child in contravention of the well-established principle that criminal statutes are to be strictly construed against the State and liberally in favor of the accused. Coleman, 947 So.2d at 881. To affirm this conviction would ignore the fact that the elements of the crime, as charged in the indictment, defined child as a person under eighteen years of age, and that the jury was instructed accordingly. Because the State failed to prove beyond a reasonable doubt the material elements of the crime, as charged in the indictment, this Court should reverse and render the conviction as to Count I, exploitation of a child.

CHANDLER, J„ JOINS THIS OPINION.

CHANDLER, Justice,

dissenting:

¶ 30. I respectfully dissent. I concur with the analysis and result advocated by my learned colleague, Justice Kitchens. I write separately to provide a discussion of why I would not apply the direct-remand rule to this case.

¶ 31. In Shields v. State, 722 So.2d 584, 585 (Miss.1998), this Court stated that “when the jury convicts of a greater offense, which is invalidated on appeal for want of sufficiency of the evidence, no new trial is required and the defendant may be remanded for sentencing upon the lesser included offense where the proof establishes proof of the lesser offense.” This principle is known as the direct-remand rule. Id. The rationale behind the rule is that “guilt of a true lesser included offense is implicitly found in the jury’s verdict of guilt on the greater offense.” Id. (citing Washington v. State, 222 Miss. 782, 787, 77 So.2d 260, 263 (1955)). Shields held that this rule applies even when the trial court did not give a lesser-included-offense jury instruction. Id. at 587.

¶ 32. The Court of Appeals held that the direct-remand rule applied, permitting its remand to the trial court for Shaffer’s resentencing for attempt. In support of this result, the Court of Appeals cited Mississippi Code Section 99-19-5(1), which states:

On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose.

Miss.Code Ann. § 99-19-5(1) (Rev.2007). The Court of Appeals held that, because under Section 99-19-5(1), the child-exploitation charge had placed Shaffer on notice that he could be found guilty of attempted child-exploitation, the direct-remand rule applied. But the direct-remand rule only permits resentencing for a lesser-ineluded offense. As Justice Kitchens points out, this Court never has held that attempt is a lesser-ineluded offense of the completed crime.

¶33. Whether attempt is a lesser-included offense of the completed crime varies by jurisdiction, and depends upon the elements set out in that jurisdiction’s statute codifying attempt. Under the federal approach, the crime of attempt includes two elements: (1) that the defendant acted with the culpability required by the underlying substantive offense, and (2) that the defendant took a substantial step toward the commission of the substantive offense. U.S. v. Barlow, 568 F.3d 215, 219 (5th Cir.2009). Because the substantive offense includes both of the elements of an attempt to commit that offense, the federal courts have held that attempt is a lesser-ineluded offense of the substantive offense. U.S. v. Castro-Trevino, 464 F.3d 536, 543 (5th Cir.2006) (citing U.S. v. York, 578 F.2d 1036, 1040 (5th Cir.1978)); U.S. v. Remigio, 767 F.2d 730, 733 (10th Cir.1985). The Fifth Circuit has held that, when a defendant was convicted of the substantive offense, but the facts were sufficient to support only a conviction of attempt, the court is empowered to modify the judgment to reflect attempt without impacting the defendant’s rights. Id.

¶ 34. In contrast, this Court has held that attempt is an indictable offense, separate and distinct from the completed crime. Mason v. State, 430 So.2d 857, 858 (Miss.1983). In Mississippi, the crime of attempt includes the following three elements: (1) an intent to commit an offense; (2) an overt act toward its commission; and (3) the failure to consummate its commission. Miss.Code Ann. § 97-1-7 (Rev. 2006). We have held that the failure to consummate the completed crime is an essential element of attempt as defined by Section 97-1-7. Id.

¶ 35. The direct-remand rule applies when the proof was sufficient to support a conviction of a lesser-included offense, but was insufficient to support a conviction of the completed offense. Shields, 722 So.2d at 585. “[A] lesser-included offense ‘is one in which all its essential ingredients are contained in the offense for which the accused is indicted, but not all of the essential ingredients of the indicted offense. An accused could not be guilty of the offense for which he is indicted without at the same time being guilty of the lesser-included offense.’ ” Gause v. State, 65 So.3d 295, 300 (Miss.2011) (quoting Thomas v. State, 48 So.3d 460, 472 (Miss.2010)).

¶ 36. Because the crime of attempt includes the essential element of failure to consummate the completed crime, which is not an element of the completed crime, attempt is not a lesser-included offense of the completed crime. Therefore, the direct-remand rule would not apply to permit resentencing for attempt. I would find that the direct-remand rule is inapplicable to Shaffer’s conviction for the completed crime of child-exploitation, where the proof sufficiently supported only the crime of attempted child-exploitation. For this reason, and for the reasons articulated by Justice Kitchens, I would reverse and render.

KITCHENS, J., JOINS THIS OPINION.

      . Shaffer v. State, 72 So.3d 1090 (Miss.Ct.App.2010).

      . Miss.Code Ann. § 97-5-33(6) (Rev.2006).

      . Black's Law Dictionary 1520 (9th ed. 2009).

      . 18 U.S.C. § 2422(b) (2000).

      . United States v. Farner, 251 F.3d 510, 511 (5th Cir.2001).

      . Id.

      . Id. at 511, 513.

      . Id. at 513.

      . State v. Coonrod, 652 N.W.2d 715 (Minn.Ct.App.2002).

      . Id. at 723.

      . Id.

      . id.