author: GRIFFIS, P.J.,

text:
    Brandon Dale ODOM, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00287-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    Rehearing Denied Nov. 1, 2011.

      A. Randall Harris, Canton, Edmund J. Phillips Jr., Newton, attorneys for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Brandon Dale Odom was convicted of armed robbery. The indictment alleged that the cashier at the gas station was the owner of the stolen cash. In fact, the cashier’s brother was the owner of the gas station and, therefore, the owner of the stolen cash. At the close of the State’s case-in-chief, the trial judge granted the State’s motion to amend the indictment to identify the correct owner of the stolen cash. Odom argues that the trial court was in error. We disagree and affirm.

FACTS

¶ 2. On July 20, 2009, Odom and his friend, Rakim Ross, stopped at the Twin City gas station just outside of Carthage, Mississippi. Dat Tran owned the gas station. He was at the gas station that day, seated at a desk near the front counter. His brother, Quan Tran, was working the cash register.

¶ 3. As Odom and Ross entered the store, Ross pulled a bandana over his face, pulled out a gun, pointed it at Quan, and demanded all the cash from the register. Odom walked over to where Dat was seated and told him: “This is serious.”

¶ 4. Quan handed over the money. The two robbers then left the store and returned to their car. Odom got in the driver’s seat, and Ross got in the passenger’s seat. Quan grabbed a handgun that was kept behind the counter and exited the store. As the robbers drove away, Quan fired several shots.

¶ 5. Approximately two-tenths of a mile down the road, Ross turned to Odom and said, “I’m shot.” Odom pulled over. He exited the car, walked over to the passenger’s side, and opened the door. Ross slumped forward and almost fell out of the car. Odom grabbed Ross, pulled him out of the car, and laid him down on the ground. Odom ran out into the street, flagged a car down, and used the driver’s cell phone to call 911.

¶ 6. Meanwhile, a sheriffs deputy had responded to a 911 call from the gas station. Quan and Dat told the deputy in which direction the robbers had fled. The deputy then came upon Odom and Ross on the roadside. Odom was pacing back and forth in front of his car. Ross was dead.

¶ 7. Odom was convicted of armed robbery under Mississippi Code Annotated section 97-8-79 (Rev.2006). He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections, with five years suspended, ten years to serve, and five years of post-release supervision. It is from this judgment Odom now appeals.

ANALYSIS

¶ 8. The only issue on appeal is whether the trial judge erred when he granted the State’s motion to amend the indictment to identify Dat, rather than Quan, as the owner of the stolen cash.

¶ 9. The original, unamended indictment charged:

Brandon Dale Odom ... did willfully, unlawfully and feloniously take ... from the presence of Quan Tran ... against the will of the said Quan Tran, by putting the said Quan Tran in fear of immediate injury to his person by the exhibition of a deadly weapon, namely, a firearm, cash money ... belonging to and being the personal property of Quan Tran [.]

(Emphasis added). In fact, Dat was the owner of the gas station and, therefore, the owner of the stolen cash.

¶ 10. At the close of the State’s case-in-chief, Odom’s attorney moved for a directed verdict. He argued that the indictment was fatally defective because it mistakenly identified Quan as the owner of the stolen cash. The trial judge denied the defense’s motion and, over the defense’s objection, granted the State’s ore tenus motion to amend the indictment. The trial judge entered a written order that held: “The indictment is hereby amended to change the allegation as to ownership of the personal property being taken to that of Dat Tran, in place of Quan Tran, as stated in the original indictment.”

¶ 11. An indictment may be amended to conform to the evidence, so long as the amendment is one of form, not substance, and does not prejudice the defense. Evans v. State, 499 So.2d 781, 784-85 (Miss.1986). Mississippi Code Annotated section 99-17-13 (Rev.2007) provides:

Whenever ... there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof ... in the name or description of any person ... alleged to be the owner of any property, real or personal, which shall form the subject of any offense charged therein ... it shall and may be lawful for the court ... if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense on the merits, to order such indictment ... to be amended according to the proof[.]

¶ 12. In Johnson v. State, 9 So.3d 413, 420-21 (¶ 30) (Miss.Ct.App.2008), this Court found no error under similar circumstances. The defendant had stolen cash from the victim at gunpoint. Id. The indictment alleged that the victim owned the cash. Id. At trial, the victim testified that the cash actually belonged to his employer, and the State was allowed to amend the indictment. Id. In finding no error, we held that: “No prejudice could have occurred to [the defendant] simply from correcting the statement of ownership of the money he took at gunpoint.” Id. at 421 (¶ 30).

¶ 13. Similarly, in Hampton v. State, 815 So.2d 429, 431 (¶¶6-9) (Miss.Ct.App.2002), the indictment was amended to correct the identity of the owner of a gas station that had been robbed, and this Court found no error. We held: “Changing the indictment to reflect the true owner of [the gas station] did not change that the money from [the gas station’s] cash register was stolen. We cannot see how [the defendant] could have been prejudiced by this amendment.” Id. at (¶ 9); see also Hall v. State, 785 So.2d 302, 307 (¶¶ 16-17) (Miss.Ct.App.2001) (no error where indictment was amended to correct that the bank, rather than the bank-teller, was the owner of cash stolen in an armed robbery).

¶ 14. In Montgomery v. State, 891 So.2d 179, 185-86 (¶¶ 22-25) (Miss.2004), the indictment was amended to identify Patterson Engineering & Development, Inc., rather than “Sam Patterson d/b/a Patterson Engineering and Development,” as the owner of money that had been embezzled, and the Mississippi Supreme Court found no error.

¶ 15. As in each of these cases, there is no error here. The amendment was one of form, not substance, and Odom’s defense was not prejudiced. Odom’s only defense was that he acted under duress. He claimed that Ross had coerced him, at gunpoint, to participate in the robbery. Odom’s defense was not affected by the amendment to the indictment. Accordingly, this issue is without merit.

¶ 16. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED, TEN YEARS TO SERVE, AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS ÓF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

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


source: Caselaw Access Project

author: ISHEE, J„

license: Public Domain

text:
    George W. MARTIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01195-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2011.

      George W. Martin, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and ISHEE, JJ.
   ISHEE, J„

for the Court:

¶ 1. In July 2006, George W. Martin pleaded guilty in the Tate County Circuit Court to burglary and was subsequently sentenced to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). No direct appeal was taken from the judgment of sentence. However, in March 2008, Martin filed a motion for post-conviction relief (PCR), which the circuit court denied. Martin appealed the denial, and this Court affirmed the circuit court’s judgment. Martin then filed a motion for reconsideration with this Court that was also denied. Thereafter, Martin filed another PCR motion with the circuit court. The circuit court denied that motion as well. Martin appealed the circuit court’s second denial of his PCR motion in March 2011. His second appeal was also denied by this Court. The issue before us now centers on Martin’s third PCR motion that he filed with the circuit court in June 2010 and was promptly denied by the circuit court. Aggrieved, Martin appeals the circuit court’s denial of his third PCR motion. Finding no error, we affirm the circuit court’s judgment.

STATEMENT OF FACTS

¶ 2. In July 2005, Martin was indicted for conspiracy, burglary of an occupied dwelling, and larceny. He was also indicted for possession of a firearm as a convicted felon, and the State moved to prosecute him as a habitual offender. Due to a plea negotiation, Martin’s indictment was amended to include only the charge of burglary, to which Martin pleaded guilty on June 19, 2006.

¶ 3. Approximately three months later, the circuit court held a sentencing hearing. The State offered the circuit court a copy of a victim-impact statement outlining the emotional trauma suffered by the victim of the burglary. The State also provided the circuit court with a list of Martin’s prior convictions, including kidnaping, attempted rape, and burglary of an automobile. The circuit court subsequently sentenced Martin to twenty-five years in the custody of the MDOC.

¶ 4. Martin did not file a direct appeal. However, since his sentencing, he has filed three PCR motions with the circuit court; all of the PCR motions have been denied. Martin’s first PCR motion was filed on March 21, 2008, and was denied by the circuit court shortly thereafter, which we later affirmed in Martin v. State, 20 So.3d 734 (Miss.Ct.App.2009). Martin filed a second PCR motion on July 27, 2009, which was also denied by the circuit court. Martin’s appeal of the circuit court’s second denial of his PCR motion was filed in March 2011. We affirmed the circuit court’s second denial in June 2011. Martin v. State, 65 So.3d 882 (Miss.Ct.App.2011). Martin’s third PCR motion was filed on June 10, 2010. As in Martin’s other two PCR motions, he asserted due-process violations regarding his indictment. The circuit court denied Martin’s third PCR motion on June 16, 2010. Aggrieved, Martin appeals. Finding no error, we affirm.

DISCUSSION

¶ 5. Mississippi Code Annotated section 99-39-5 (Supp.2011) governs motions for post-conviction relief. The statute provides that a prisoner has three years within which to request post-conviction relief. After that time, only certain cases are excepted from the procedural bar. Exceptions to the three-year statute of limitations are as follows:

That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of [the movant’s] conviction or sentence or that [the mov-ant] has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or [t]hat, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the [movant] would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution. Likewise excepted are those cases in which the [movant] claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Miss. Code Ann. § 99-39-5(2)(a)-(b).

¶ 6. Here, Martin pleaded guilty in July 2006 and was sentenced in September 2006. Martin’s third PCR motion was filed in June 2010 — approximately four years after his conviction and sentence. As noted by the circuit court, Martin provides no evidence to support a theory that his case should be exempted from the three-year statutory bar. As such, Martin’s third PCR motion is time-barred.

¶ 7. Furthermore, Martin’s assertions in his third PCR motion mirror those of his last two PCR motions. Martin argues that his due-process rights were violated because his indictment did not “specify the specific crime Martin ... intended to commit.” Martin’s indictment charged him with “conspiracy to commit burglary of a dwelling.” This argument was reviewed and addressed by the circuit court in 2008. The circuit court denied Martin’s PCR motion, which this Court affirmed in Martin v. State, 20 So.3d 734 (Miss.Ct.App.2009).

¶ 8. Mississippi Code Annotated section 99-39-23(6) (Supp.2011) applies to successive writs and provides that an issue raised by a prisoner and addressed in a final judgment with specific findings of facts and conclusions of law cannot be raised by the movant again. Any motion filed after entry of the final judgment and asserting the same issue is procedurally barred as a secondary or successive writ. Accordingly, because this issue was raised in one of Martin’s prior PCR motions and fully adjudicated by both the circuit court and this Court, the instant PCR motion is barred as a successive writ. We find all of Martin’s issues are procedurally barred.

¶ 9. THE JUDGMENT OF THE TATE COUNTY CIRCUIT COURT DENYING THE MOTION POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

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


author: LEE, C.J.,

text:
    Michael James TILLMAN, Appellant v. David D. MITCHELL, Appellee.
    No. 2010-CA-01252-COA.
    Court of Appeals of Mississippi.
    Oct. 25, 2011.

      Glenda Fay Funchess, attorney for appellant.
    Jerry A. Evans, Hattiesburg, attorney for appellee.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Michael James Tillman filed an action in the Forrest County Chancery Court against his half-brother, David D. Mitchell, for establishment of a constructive trust of a piece of property in Hatties-burg, Mississippi. Mitchell owned the property, and Tillman rented the house on the property from Mitchell. Mitchell filed a counter-claim for back rent on the property for May 1, 2009, through June 1, 2010. The chancellor found that no constructive trust existed. The chancellor also agreed with Mitchell on his counter-claim for past-due rent and awarded Mitchell $4,200, which represented fourteen months of rent at $300 a month.

¶ 2. Tillman now appeals, asserting the following issues: (1) the chancellor erred in not finding that a constructive trust existed between Tillman and Mitchell; (2) the proof showed by clear-and-convincing evidence that a constructive trust existed; and (3) Tillman was entitled to a refund of the amount paid to Mitchell under the presumption that there was an agreement for purchase of the property. Issues one and two will be discussed together as they address the same argument. Finding no error, we affirm.

FACTS

¶ 3. Tillman and his wife rented a house in Hattiesburg, Mississippi, from Nancy Cole for $400 a month. In 2003, after Cole’s husband passed away, she decided to sell the house. The Tillmans did not want to move, but they could not afford the $5,000 asking price. Cole testified that she offered the Tillmans the house at a low price because they had been paying rent since 1996.

¶ 4. Tillman asked his sister for help in purchasing the house. She declined. Tillman then asked Mitchell for help. Mitchell declined initially, but in June 2006, Mitchell purchased the house along with an adjacent piece of vacant property. At the time of the purchase, the Tillmans were behind one month’s rent. Mitchell paid the $400 past-due rent along with the purchase price. Cole executed a warranty deed to Mitchell. Cole testified that it was her understanding that Mitchell would transfer the deed to Tillman after Tillman paid Mitchell for the property, but she had no knowledge of whether or not Mitchell and Tillman had made an agreement to this effect.

¶ 5. The Tillmans continued to live in the house, and they paid Mitchell $200 a month in rent. In August or September 2006, Mitchell gave Tillman the option of purchasing the property by paying either $250 a month for sixty months or $300 a month for forty-eight months. Tillman began paying Mitchell $300 a month in September, although at trial Tillman denied knowledge of any agreement. According to Mitchell, Tillman agreed verbally to pay property taxes, keep the property clean, and purchase insurance for the house. Tillman argues there was no such agreement.

¶ 6. The terms of the alleged lease-purchase agreement were first placed into writing in a letter dated May 12, 2007. The letter stated that Tillman had paid $2,400 toward the purchase of the house, but Tillman still owed Mitchell $12,000 per their agreement. Attached to the letter were the “terms and conditions” of the lease purchase as set out by Mitchell. Among other terms, the document states that payments would be made at $300 a month for forty-eight months; the property must be kept clean and free of debris; “payments made 30 late [sic] cancils [sic] entire agreement”; and taxes and insurance must be paid by the purchaser. Mitchell alleges that Tillman had repeatedly failed to pay property taxes and insurance and keep the property clean.

¶ 7. In a letter dated July 15, 2009, Mitchell ordered Tillman to vacate the property by July 23, 2009. Mitchell alleged that Tillman was seven months behind on rent and had failed to pay the property taxes. Tillman filed suit in the Forrest County Chancery Court to quiet title. The chancellor dismissed the complaint, and the current action was commenced by Tillman to establish a constructive trust.

STANDARD OF REVIEW

¶ 8. The findings of a chancellor will not be disturbed on review unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard. Bank of Mississippi v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992). The standard of review employed by this Court for review of a chancellor’s decision is abuse of discretion. Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So.2d 200, 204 (¶ 15) (Miss.1998). However, for questions of law, the standard of review is de novo. Consolidated Pipe & Supply Co. v. Colter, 735 So.2d 958, 961 (¶ 13) (Miss.1999). The applicability of a constructive trust is a “pure question” of law; thus, our standard of review is de novo. Davidson v. Davidson, 667 So.2d 616, 620 (Miss.1995).

DISCUSSION

I. CONSTRUCTIVE TRUST

II. CLEAR-AND-CONVINCING EVIDENCE

¶ 9. Tillman argues that he and Mitchell made an agreement whereby Mitchell would purchase the house from Cole for $5,400, and Tillman would repay Mitchell $5,400 in monthly installments in exchange for ownership of the house. However, the payments under the lease-purchase agreement written by Mitchell totaled $14,400. Mitchell testified that it was never his intention to hold the property in trust for Tillman until Tillman had repaid him the purchase price. Tillman argues that he has compensated Mitchell for the property through the rent payments made thus far, and Mitchell should be required to convey the property to him under the equitable doctrine of constructive trust.

¶ 10. A constructive trust arises in order to prevent unjust enrichment by a person gaining property that rightfully belongs to someone else. McNeil v. Hester, 753 So.2d 1057, 1064 (¶24) (Miss.2000). The supreme court has defined a constructive trust as follows:

A constructive trust is one that arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.

Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1034 (Miss.1990) (quoting Sojourner v. Sojourner, 247 Miss. 342, 353, 153 So.2d 803, 807 (1963)). A chancellor may “construct a trust for the benefit of the party whose confidence has been abused.” Davidson, 667 So.2d at 620. The existence of a constructive trust must be proven by clear-and-convincing evidence. McNeil, 753 So.2d at 1064 (¶ 25).

¶ 11. Tillman asserts that he and Mitchell were raised as brothers, and he relied on their relationship when asking Mitchell to purchase the house for him. For a “confidential relationship to exist between two persons, there must be a relation in which one person is in a position to exercise a dominant influence upon the other.” In re Estate of Parker, 13 So.3d 877, 880 (¶ 8) (Miss.Ct.App.2009) (quoting Tatum v. Barrentine, 797 So.2d 223, 230 (¶ 32) (Miss.2001)). Tillman testified that he did not finish high school, and he lacked understanding of business transactions. Mitchell, on the other hand, was a college graduate with business experience. Tillman’s friend, Ronald Johnson, testified that he had helped Tillman read and understand the details about the house and lawsuit. Johnson testified that he took Tillman to the Mississippi Center for Legal Services for help. He testified that he reads any correspondence from Mitchell or the legal services office to Tillman. Tillman’s wife testified that she did not know the terms of the agreement, but she felt that Mitchell treated Tillman unfairly. She stated that Mitchell was “just trying to beat us.”

¶ 12. Tillman argues that his case is similar to that of Russell v. Douglas, 243 Miss. 497, 138 So.2d 730 (1962). In Russell, Leroy Russell’s mother conveyed a piece of property in Brookhaven, Mississippi, to Russell, but she retained a life estate for herself. Id. at 500, 138 So.2d 730. While his mother was still living, Russell hired Deeb Construction to build a shell home on the property for $2,000. Id.

Russell defaulted on his payments to Deeb. Id. Deeb attempted to obtain possession of the property but could not because Russell’s mother held a life estate. Id. Two years later, Russell’s mother passed away. Id. at 501, 138 So.2d 730. Deeb instituted eviction proceedings. Id. Russell sought financial help from his aunt, Gladys Douglas, to redeem the property, and Douglas agreed. Id. at 502, 138 So.2d 730. Russell and Douglas shared the same attorney. Id. The attorney was contacted by Douglas or her husband and instructed to have the deed made in Douglas’s name. Id. Douglas and Russell met, and Russell executed a quitclaim deed to Douglas. Id. Russell was not asked to vacate the property nor was the transaction explained to him. Id. Douglas then sent Russell a letter demanding that he vacate the property. Id. at 503, 138 So.2d 730. Russell sued, arguing that he held a constructive trust. Id. The Mississippi Supreme Court agreed. Id. at 505, 138 So.2d 730. In finding a constructive trust, the supreme court noted that Russell and Douglas shared a confidential relationship. As evidence of a confidential relationship, the supreme court noted that Russell and Douglas used the same attorney and held a joint lockbox after Russell’s mother’s death. Id. at 504-05, 138 So.2d 730. The supreme court also noted that Russell had no understanding that he was going to lose his property and that Russell received nothing in exchange for executing the quitclaim deed. Id.

¶ 13. We find Tillman’s case distinguishable from Russell. Unlike Russell, who was deeded the property by his mother, Tillman had no ownership interest in the property Mitchell purchased from Cole. The evidence regarding Mitchell’s and Tillman’s intentions was conflicting at best. No evidence was presented that Mitchell planned to deed the house to Tillman at the time Mitchell purchased the house from Cole. Mitchell did not instigate the purchase of the property but only did so at Tillman’s request. No evidence was presented that Mitchell purchased the property at a price below fair-market value, except for Cole’s testimony that she would not have sold the house to anyone else for $5,000. There was no evidence of a confidential relationship between Tillman and Mitchell other than Tillman’s testimony that the two were raised as brothers. Tillman himself testified that his sister was an attorney, and Mitchell was not the person anyone in the family usually sought out for business advice. Tillman asserts that the requirement in the lease-purchase agreement that he pay the property taxes was evidence of ownership. However, Tillman only paid taxes one year, and Tillman was not ordered by the chancellor to pay the past-due property taxes.

¶ 14. Tillman has presented no legal duty on the part of Mitchell to deed him the house or hold it in trust for him. The chancellor could not find by clear-and-convincing evidence that the arrangement between Tillman and Mitchell resulted in a constructive trust. We agree. Thus, we find that this issue is without merit.

III. REFUND

¶ 15. Next, Tillman argues that if a constructive trust was not established, he is entitled to a refund of the rent payments he made to Mitchell under the theory of unjust enrichment.

¶ 16. Unjust enrichment has been described by this Court as follows:

An unjust enrichment action is based on a promise, which is implied in law, that one will pay a person what he is entitled to according to “equity and good conscience.” Thus, the action is based on the equitable principle “that a person shall not be allowed to enrich himself unjustly at the expense of another.” It is an obligation created by law in the absence of any agreement; therefore, it is an implied in law contract.

1704 21st Ave., Ltd. v. City of Gulfport, 988 So.2d 412, 416 (1110) (Miss.Ct.App.2008) (quoting Magnolia Fed. Savings & Loan v. Randal Craft Realty, 342 So.2d 1308, 1311 (Miss.1977)).

¶ 17. We cannot find that Mitchell was unjustly enriched by the payments he received from Tillman. Tillman and his wife resided in the house owned by Mitchell at the time of trial, even though they had not paid rent since April 2009. The Tillmans did not put on proof that they improved the property or made any other financial investments in the property. Tillman paid the property taxes for one year, but in light of other factors, we cannot find this sufficient to amount to unjust enrichment. We find the opposite of Tillman’s argument to be true — Tillman would be unjustly enriched if he were allowed to live rent free for the duration of the time Mitchell owned the house.

¶ 18. We find that Tillman is not entitled to a refund of the rent payments he made to Mitchell. This issue is without merit.

¶ 19. THE JUDGMENT OF THE FORREST COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Katherine Graham ABERCROMBIE and I.H. Abercrombie, Appellants v. Grayling CARTER and Wife Tammy Graves Carter, Stanley Parker and Doris Parker and Hugo William (Bill) Walton, Mary Mittlelee Walton McCall, Linda Ann Walton Smith and Sandee Joyce Walton Hendricks, The Heirs at Law of Vondee Walton, Deceased and Lawrence Trigg and Ester P. Trigg, Appellees.
    No. 2010-CA-00874-COA.
    Court of Appeals of Mississippi.
    Oct. 25, 2011.
    Mary K. Burnham, attorney for appellants.
    William H. Jones, Petal, attorney for appellees.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY AND FACTS

¶ 1. I.H. “Hardy” and Katherine Aber-crombie own a piece of property in Coving-ton County, Mississippi. In early 1998, Hardy noticed a pipe-and-cable fence on the southwest corner of the property. The Abercrombies did not know when the fence was put on the property, but they testified that they had never seen it before. On April 29, 2002, Harvey Saul of Saul Engineering surveyed the property and found an encroachment of 110.17 feet over the southeast 1/4 and southwest 1/4 section of the property and an encroachment of 21.03 feet over the south township line. Grayl-ing Carter and Tammy Graves Carter owned the adjacent property and had installed the pipe-and-cable fence.

¶2. On July 19, 2002, and August 29, 2002, the Abercrombies’ attorney sent letters to Grayling asking him to remove the fence. Grayling refused, and the Aber-crombies filed a complaint to quiet and confirm the title and remove cloud on the title. The Abercrombies also named Lawrence Trigg and Ester P. Trigg in the complaint, alleging that the Triggs also had a fence that was encroaching on the Abercrombies’ property. In addition, the Abercrombies asserted that the Triggs had thrown and pushed trash and debris onto them property. The Abercrombies asked the chancellor to order the Triggs to remove the debris.

¶ 3. The following defendants were named in the complaint because they were neighboring property owners: Stanley and Doris Parker and the heirs at law of Von-dee Walton — Hugo William Walton, Mary Mittlelee Walton McCall, Linda Ann Walton Smith, and Sandee Joyce Walton Hendricks.

¶ 4. The Triggs filed a cross-complaint asking the chancellor to quiet title. The Triggs alleged that they were the true owners of the property inside their fence line, and they further asserted that they had acquired the property by adverse possession. The Walton heirs also filed a cross/eounter-complaint, alleging to be the owners in fee simple of the property.

¶ 5. After a hearing was held, the chancellor first determined the cross-complaint for adverse possession was without merit. The chancellor accepted the survey of Jerry Miller, who found that a large post and a half-inch rebar marked the northeast corner of the northeast 1/4 of the property. The chancellor also accepted the survey of Forestry Services, Inc., which found that the existing fence properly marked the property line starting at the southwest corner of the property and running east between the properties.

¶ 6. Abercrombie now appeals, asserting the following issues: (1) the chancellor erred in failing to enter a default judgment in favor of the Parkers; (2) the chancellor failed to adjudicate the Abercrombies to be owners in fee simple of their property by adverse possession; (3) the chancellor should have accepted the survey of Saul Engineering as the true and accurate description of the property; and (4) the chancellor erred in admitting the survey conducted by Miller. Finding reversible error as to issue four, we decline to address the other issues as issue four is dispositive of this appeal.

STANDARD OF REVIEW

¶ 7. When reviewing a chancellor’s findings, this Court employs a limited standard of review. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997) (citing Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994)). The chancellor’s findings will not be disturbed upon review unless the chancellor was manifestly wrong, clearly erroneous, or applied an incorrect legal standard. Id. “The standard of review employed by this Court for review of a chancellor’s decision is abuse of discretion.” McNeil v. Hester, 753 So.2d 1057, 1063 (¶ 21) (Miss.2000) (citations omitted).

DISCUSSION

¶ 8. We find merit to the Aber-crombies’ argument that the chancellor erred in using the Miller survey in reaching his decision. Two surveys were introduced diming the hearing — the Forestry Services survey and the Saul Engineering survey. The surveys differed as to the boundary line between the properties by approximately thirty feet. The parties stipulated to the Forestry Services survey. Saul was the only surveyor who testified at hearing. During his testimony, Saul expressed concerns about the Miller survey. The appellees’ attorney moved to have the Miller survey entered into evidence, but the chancellor excluded the survey since Miller was not present to testify. Saul was asked if a third survey should be conducted since the surveys presented at the hearing were conflicting. Saul responded, “I urge you to get one.” At the conclusion of the hearing, the chancellor stated:

BY THE COURT: Okay. Well, ... I’m going to appoint another surveyor. Not to go on the ground, but to look at the field notes, look at the two surveys that are platted and get me an opinion as to whether they’re right or wrong.... As far as I’m concerned, I want to see — and I do understand and I see those differences, but we’re literally looking at fifteen foot, or thirty foot.
MR. JONES: Can we ask to appoint Jerry Miller?
BY THE COURT: No, I’m going to appoint somebody separate. And I’ll figure out who I’m going to appoint. I’m not real sure right now. But I’m going to get somebody. Like I said, strictly for the purposes of reviewing the surveys. If you get another one, I’ll leave the record open.

¶ 9. Regardless of the chancellor’s statements, the chancellor considered the Miller survey in making his judgment. The chancellor’s order states:

That the survey of Miller is dated January 11th, 2009, and does reflect a date of having found half-inch rebar and big post at the NE corner of the NE 1/4 on April 17th of 2009. Since the Court accepted no additional testimony[,] this fact is noted[;] however, having viewed the property[,] particularly the old fence post that marked the corner, the Court finds that the survey is accepted.

¶ 10. The Abercrombies argue that the Miller survey was not evidence and should not have been relied on by the chancellor. The Abercrombies object to the use of the Miller survey because they argue it is incorrect as to all corners of the property except the point of beginning. The Carters argue that the chancellor’s opinion was not in error because the chancellor did not rely on the Miller survey; rather, the chancellor relied on his own physical inspection of the property and the Forestry Services survey. Also, the Carters argue that the Abercrombies’ argument is moot because the chancellor left the record open for an additional survey, and the Aber-crombies did not object.

¶ 11. We find the chancellor erred in considering a survey that was not allowed into evidence. The survey was properly excluded at the hearing as hearsay. M.R.E. 802. The parties were not allowed to examine the Miller survey at the hearing, nor were they allowed to question Miller, the surveyor. We also find no merit to the Carters’ assertion that the Abercrombies should have objected to the Miller survey. The Abercrombies had no reason to object to the Miller survey because the chancellor said a different surveyor would be used to review the surveys done by Saul Engineering and the Forestry Services.

¶ 12. Having found that the chancellor abused his discretion in using the Miller survey, we reverse the chancellor’s judgment and remand this case for a new trial on the merits.

¶ 13. THE JUDGMENT OF THE COVINGTON COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

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


author: CARLTON, J.,

text:
    Kelly MANN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00989-COA.
    Court of Appeals of Mississippi.
    Nov. 1, 2011.
    Kelly Mann, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Kelly Mann appeals the Leake County Circuit Court order denying his motion for post-conviction relief (PCR). Mann raises the following assignments of error, which we restate for clarity: (1) whether the trial court erred by failing to advise him of his constitutional right to confront his accuser in violation of the 5th and 14th Amendments to the United States Constitution and Article 3, § 14 of the Mississippi Constitution; (2) whether the trial court possessed subject-matter jurisdiction to convict him of murder and armed robbery where the grand jury relied upon false evidence to return an indictment against him for capital murder; (3) whether the trial court violated Rule 11 of the Federal Rules of Criminal Procedure where he allegedly failed to understand the essential elements of capital murder; and (4) whether his 4th, 5th, and 6th Amendment rights were violated due to his ineffective assistance of counsel. Finding no error, we affirm.

FACTS

¶2. On May 5, 1998, a Leake County grand jury indicted Mann for the crime of capital murder in violation of Mississippi Code Annotated section 97—3—19(2)(e) (Rev.2006). On August 9,1998, Mann pled guilty to the charges of murder and armed robbery. The trial court sentenced Mann to life in the custody of the Mississippi Department of Corrections (MDOC) for the crime of murder and to a consecutive term of forty years’ imprisonment in the custody of the MDOC for the crime of armed robbery.

¶ 3. Mann previously filed and was denied post-conviction relief by the trial court on July 2, 1995, and then again, on August 7, 2006. Then, on January 19, 2010, Mann filed the present PCR motion seeking to vacate his convictions and sentences, which the trial court denied as a successive writ. Aggrieved, Mann appeals. After reviewing the record before this Court, we find Mann’s PCR motion is indeed time-barred and barred as a successive writ.

STANDARD OF REVIEW

¶ 4. “When reviewing a lower court’s decision to deny a [motion] for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Bradley v. State, 919 So.2d 1062, 1063 (¶ 6) (Miss.Ct.App.2005) (citing Graves v. State, 822 So.2d 1089, 1090 (¶ 4) (Miss.Ct.App.2002)).

DISCUSSION

¶5. The Uniform Post-Conviction Collateral Relief Act (UPCCRA) generally bars successive PCR motions from our review. White v. State, 59 So.3d 633, 635 (¶ 6) (Miss.Ct.App.2011) (citing Miss.Code Ann. § 99-39-23(6) (Supp.2010). Mississippi Code Annotated section 99-39-23(6) (Supp.2011)) provides the successive-writ bar for PCR motions. Section 99-39-23(6) states that “any order dismissing the [movant’s] motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” Additionally, we note that “a three-year limitations period applies to claims for relief under the UPCCRA.” White, 59 So.3d at 635 (¶ 6) (citing Miss.Code Ann. § 99-39-5(2) (Supp.2010)).

¶ 6. Upon review, we find that Mann’s present PCR motion, which he filed on January 19, 2010, constitutes a successive writ. See Miss.Code Ann. § 99-39-23(6). As explained by the trial court in its order denying Mann’s PCR motion, Mann previously was denied post-conviction relief on July 2, 1995, and then again on August 7, 2006. Furthermore, Mann filed his present PCR motion outside of the three-year statute of limitations, as he is currently challenging his guilty pleas which he entered in 1993. See Miss.Code Ann. § 99-39-5(2) (Supp.2011). Therefore, we must determine whether any exceptions to the procedural bars apply to Mann’s case.

¶7. “The successive-writ bar does not apply where a PCR movant shows ‘he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence.’ ” White, 59 So.3d at 635 (¶ 9) (quoting Miss.Code Ann. § 99-39-23(6)). “There is also a newly-discovered-evidence exception to the three-year statute of limitations that is, in substance, identical to this provision.” Id. (citing Miss.Code Ann. § 99-39-5(2)).

¶ 8. Mann argues that he possesses newly discovered evidence that was not reasonably discoverable at the time of trial which was of such nature that it would have caused a different result in his convictions. Mann contends that an August 7, 2008 newspaper article shows that Governor Haley Barbour pardoned Willie James Kimble for the 1991 murder of Wilson Roberts. Mann asserts that the deceased Wilson Roberts, referred to in the 2008 newspaper article, is the same Wilson Roberts who was allegedly an eyewitness to and the robbery victim of Mann’s crime of capital murder in 1993.

¶ 9. After considering whether Mann’s claims met the statutory exception for newly discovered evidence, the trial court found Mann’s PCR motion barred as a successive writ, stating:

ON THIS DAY came Petitioner, Kelly Mann, who petitions this Court for relief under the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss. Code Ann. § 99-39-1, et. seq. Petitioner entered a guilty plea for murder and armed robbery on August 9, 1993. Petitioner has previously filed and was denied post-conviction relief by this Court on July 2, 1995[,] then again on August 7, 2006, causes number 06-CV-186-LE-G. In this current motion, Petitioner claims to be entitled to post-conviction relief because there is newly discovered evidence. Pursuant to Miss.Code Ann. § 99-39-23(6), if newly discovered evidence would likely produce a different result and the proponent shows that the evidence was discovered since the plea, that it could not have been discovered before the plea by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative, or impeaching, then such evidence justifies a successive challenge.
The newly discovered evidence of which Petitioner discusses is a newspaper article that cites the 1991 murder of a man named Wilson Roberts. Petitioner argues that a man named Wilson Roberts was a purported witness who could testify against Petitioner for the 1993 murder of Bernard Shaw. Petitioner concludes that his guilty plea was induced, in part, by the potential testimony of a witness that Petitioner contends was fabricated.
Having carefully considered this current petition, this Court finds no merit in Petitioner’s claim of newly discovered evidence to justify a successive post-conviction[-]relief motion. Petitioner’s alleged new evidence would not have produced a different result; Petitioner knowingly and voluntarily pleaded guilty to murder and armed robbery. This Court now finds that this current petition represents a successive writ, under Miss.Code Ann. § 99-39-23(6) and 99-39-27(9), and has presented an unwarranted burden on this Court and the Circuit Clerk’s office. Therefore, this Court again denies Kelly Mann any post-conviction relief and orders that any future requests for post-conviction relief received from Kelly Mann must be approved by this Court before being filed by the Clerk.

¶ 10. As recognized by the trial court, Mann’s proffer fails to constitute either newly discovered evidence or evidence that would have caused a different result. We note that the movant possesses the burden to show that he has met a statutory exception, see Adams v. State, 954 So.2d 1051, 1053 (¶ 7) (Miss.Ct.App.2007), and in the present case, Mann has failed to present evidence of facts to satisfy the requirements of the statutory exception for newly discovered evidence.

¶ 11. Additionally, we find that the procedural bar against successive writs applies to Mann’s subsequent assignments of error concerning his constitutional rights, because mere assertions of constitutional-rights violations are insufficient to establish that a violation of his fundamental constitutional rights occurred. See White, 59 So.3d at 636 (¶ 11) (“The procedural bars of the UPCCRA do not apply to ‘errors affecting fundamental constitutional rights.’ ... [However,] mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar.”) (internal citations omitted).

¶ 12. Based on the forgoing, we affirm the trial court’s denial of Mann’s PCR motion.

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

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

      . This information is provided to this Court by the trial court’s May 21, 2010 order in the record. We note, however, that this Court in Mann v. State, 2 So.3d 743, 745 (¶ 3) (Miss.Ct. App.2009) provided that Mann filed a PCR motion on October 27, 1994, which was denied after an evidentiary hearing on July 24, 1995. In Mann, this Court further explained that on November 6, 1997, the supreme court affirmed the trial court’s decision to deny Mann’s PCR motion. Id. (citing Mann v. State, 703 So.2d 861 (Miss.1997)). Additionally, this Court in Mann, 2 So.3d at 745 (¶ 4), stated that Mann then filed a PCR motion to vacate and set aside his conviction and sentence on August 7, 2006, which the trial court dismissed as time-barred and as a successive writ on August 20, 2007, after an evidentiary hearing. On February 3, 2009, this Court affirmed the trial court’s order of dismissal. Id. at 746 (¶ 11). For purposes of today’s discussion, we will use the dates provided to this Court by the trial court’s order denying Mann's present PCR motion.


author: MAXWELL, J.,

text:
    Cedric JAMISON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01209-COA.
    Court of Appeals of Mississippi.
    Nov. 1, 2011.

      W. Daniel Hinehcliff, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, Scott Stuart, attorneys for appellee.
   MAXWELL, J.,

for the Court:

¶ 1. A Tunica County grand jury returned a two-count indictment against Cedric Jamison. Count I charged sexual battery, and Count II charged possession of .1 gram or less of cocaine. Based on Jami-son’s trial testimony that he possessed “about two or three grams of cocaine,” the circuit court allowed the State to amend Count II of Jamison’s indictment to increase the charged quantity to “between 2 and 10 grams.” The amendment occurred after the close of the evidence. Its effect was to increase the statutory minimum and maximum penalties Jamison faced from one to four years’ imprisonment to four to sixteen years. The jury acquitted Jamison of sexual battery but convicted him of cocaine possession. The circuit court sentenced Jamison to ten years (six to serve and four suspended).

¶ 2. We hold that an amendment to the charged quantity in a drug-possession offense that increases the statutory maximum penalty is an amendment of substance, requiring submission to a grand jury. Because the amendment to Jami-son’s indictment resulted in a sentence above the statutory maximum of the original charge, and was made without grand-jury approval, we must vacate his sentence. We affirm Jamison’s conviction on the lesser cocaine-possession offense and remand for resentencing under the statutory penalties for Count II as it existed prior to the amendment.

FACTS

¶3. On August 30, 2008, the Tunica County Sheriffs Office received a call from Jane Smith reporting that Jamison had sexually assaulted her. Officers were dispatched to the home of Latony Burk, where the assault had allegedly occurred. Smith was taken to the Memphis Rape Crisis Center in Memphis, Tennessee, while officers began searching for Jamison. They soon found Jamison at his sister’s home, hiding inside a storage bin in the closet of the master bedroom. Jamison was arrested and taken into custody. A grand jury later charged him with sexual battery and possession of .1 gram or less of cocaine.

¶ 4. According to Smith’s testimony, she was alone inside Burk’s home and asleep on the couch when Jamison arrived. Smith testified Jamison forced her to perform oral sex on him and to “do cocaine off of his body.” Smith recounted: “As he was making me have oral sex on him, he was pouring [cocaine] all over his body and on his penis, and he was making me— telling me to suck here and lick there — lick that off.” Smith explained that she was familiar with cocaine and could identify the substance.

¶ 5. The circuit court admitted into evidence a report from a “sexual-assault nurse” at the Tennessee crisis center who recorded Smith’s account on August 30. According to the report, Jamison had “put some cocaine on his penis, and ... made [Smith] suck it off.” A forensic toxicologist from the Mississippi Crime Laboratory testified that blood samples taken from Smith on August 30 contained cocaine metabolites. He conceded, however, that he could not ascertain how long the cocaine metabolites had been in Smith’s bloodstream.

¶ 6. Jamison testified in his own defense. He denied he had sexually assaulted Smith, but admitted possessing cocaine. Jamison claimed Smith had performed consensual oral sex on him in exchange for cocaine. Jamison admitted during trial that he had possessed “about two to three grams of cocaine” when he was with Smith on August 30. He also testified he had provided Smith “maybe a gram” of the drug for herself.

¶ 7. Based on Jamison’s testimony, after the close of the evidence, the State moved to amend Jamison’s indictment to increase the quantity of cocaine charged from .1 gram or less to between two and ten grams. The circuit court permitted the amendment over Jamison’s objection, finding it concerned “a matter of form as opposed to substance.” The jury acquitted Jamison of sexual battery but found him guilty of possessing two to ten grams of cocaine. The circuit court sentenced him — above the statutory maximum of the original charge — to ten years, with six years to serve and four years suspended. Jamison filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court denied.

DISCUSSION

I. Amendment to the Indictment

¶8. The grand jury originally charged Jamison with possessing .1 gram or less of cocaine under section 41 — 29—139(c)(1)(A) (Rev.2009). If convicted, Jamison faced a minimum of one year but not more than four years’ imprisonment and up to a $10,000 fine. Miss.Code Ann. § 41-29-139(c)(1)(A). Based on Jamison’s testimony that he possessed “about two to three grams of cocaine,” at the close of the evidence, the circuit court — over Jamison’s objection — allowed the State to amend his indictment. The amended indictment charged Jamison with possessing a larger quantity of cocaine — between two and ten grams. See Miss.Code Ann. § 41-29-139(c)(1)(C) (Rev.2009). This amendment resulted in a significant increase in the severity of Jamison’s potential sentence. After the amendment, he faced a mandatory minimum sentence of not less than four years but not more than sixteen years’ imprisonment and up to a $250,000 fine. Id.

A. Right to Indictment by Grand Jury

¶ 9. Uniform Rule of Circuit and County Court 7.09 sets forth the applicable requirements for amending an indictment. Rule 7.09 provides in pertinent part: “All indictments may be amended as to form but not as to the substance of the offense charged.” It further emphasizes that an “[ajmendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” (Emphasis added). While Rule 7.09 “does not speak to the timing of the amendment,” it mandates that “the defendant must be ‘afforded a fair opportunity to present a defense’ and ‘not be unfairly surprised.’ ” Gowdy v. State, 56 So.3d 540, 545 (¶ 16) (Miss.2010). “This means that the defendant must be afforded due process of law and be given fair notice of ‘the nature and cause of the accusation.’ ” Id. (citing U.S. Const, amends. VI, XIV; Miss. Const, art. 3, §§ 14, 26).

¶ 10. The United States Supreme Court has not found the federal right to indictment by grand jury applicable to the states through the Fourteenth Amendment to the United States Constitution. See Ring v. Arizona, 536 U.S. 584, 597 n. 4, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (citing Apprendi v. New Jersey, 530 U.S. 466, 477 n. 3, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). Rather, “[t]he Supreme Court has continued to follow the position that indictment issues in federal courts are governed by the Fifth Amendment, while indictment issues in state courts are instead governed by state law.” Bennett v. State, 933 So.2d 930, 952 (¶ 83) (Miss.2006).

¶ 11. Article 3, section 27 of the Mississippi Constitution requires an indictment by a grand jury for the prosecution of felonies, “except in cases arising in the land or Naval forces, or the military when in actual service.” Quick v. State, 569 So.2d 1197, 1199 (Miss.1990) (interpreting Miss. Const, art. 3, § 27). “This provision has been in each of the constitutions which the people of the State of Mississippi have established.” Id. Since 1858, our courts have had “no power to amend an indictment as to the matter of substance without the concurrence of the grand jury ..., although amendments as to mere informal-ities may be made by the court.” An amendment is considered to be one of substance if it alters the essence of the charge. Rhymes v. State, 638 So.2d 1270, 1275 (Miss.1994). According to the Mississippi Supreme Court, if the amendment either (1) “materially alter[s] facts which are the essence of the offense on the face of the indictment as it originally stood or” (2) “materially alter[s] a defense to the indictment as it originally stood so as to prejudice the defendant’s case,” then the amendment is substantive, and approval by the grand jury is required. Spears v. State, 942 So.2d 772, 774 (¶ 6) (Miss.2006).

B. Apprendi v. New Jersey

¶ 12. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The State contends the quantity involved in a drug-possession charge only relates to the sentence and is never an element of the crime itself. It also suggests that amending the charged quantity in a case involving possession of a controlled substance always concerns merely a matter of form, not substance. We disagree with both notions.

¶ 13. The Mississippi Supreme Court has not confronted Apprendi’s application to the specific issue before us. And we find none of the cases relied on by the State are dispositive here. Both Kittler v. State, 830 So.2d 1258, 1259-60 (¶¶4-6) (Miss.Ct.App.2002) and Oby v. State, 827 So.2d 731, 735-36 (¶¶ 13-17) (Miss.Ct.App.2002) are distinguishable because the amendment to the indictment in both cases decreased the quantity of narcotics allegedly possessed. Though Apprendi was not discussed in either case, we find its dictates were not offended because the defendants in Kittler and Oby were not exposed to increased maximum sentences and more severe punishments if convicted. We also find Harris v. State, 5 So.3d 1127 (Miss.Ct.App.2008) distinguishable because the defendant in Harris voluntarily pled guilty to the increased drug-possession charge in the amended indictment — a result we have absolutely no qualms with due to the voluntarily negotiated outcome.

¶ 14. Because Mississippi courts have not squarely addressed this issue, we look to other courts that have. The United States Court of Appeals for the Fifth Circuit has explained that in considering whether drug quantity must be pled in an indictment and proved as an element of the offense beyond a reasonable doubt, “[t]he relevant inquiry is now whether a factual determination is involved, and whether that determination increases the sentence beyond the maximum statutory penalty.” United States v. Doggett, 230 F.3d 160, 164 (5th Cir.2000). In Doggett, the Fifth Circuit held: “[I]f the government seeks enhanced penalties based on the amount of drugs ... the quantity must be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable doubt.” Id. at 164-65.

¶ 15. Numerous other federal circuit courts have followed suit and similarly determined quantity is an element of a drug-possession offense that must be charged in the indictment and proven to the jury beyond a reasonable doubt under Apprendi See United States v. Lacy, 446 F.3d 448, 453-54 (3d Cir.2006); United States v. McLean, 287 F.3d 127, 134 (2d Cir.2002); United States v. Sanchez, 269 F.3d 1250, 1270 (11th Cir.2001); United States v. Promise, 255 F.3d 150, 156-57 (4th Cir.2001); United States v. Fields, 251 F.3d 1041, 1043 (D.C.Cir.2001); United States v. Westmoreland, 240 F.3d 618, 632 (7th Cir.2001); United States v. Aguayo-Delgado, 220 F.3d 926, 932-33 (8th Cir.2000).

¶ 16. Several state courts considering this issue have applied similar requirements on the right to indictment by a grand jury and have held that where quantity in a drug-possession charge affects the severity of the potential sentence, it is an essential element of the offense which must be charged by the grand jury. People v. Patterson, 267 Ill.App.3d 933, 205 Ill.Dec. 1, 642 N.E.2d 866, 870 (1994); People v. Mass, 464 Mich. 615, 628 N.W.2d 540, 547 (2001); State v. Davis, 121 Ohio St.3d 239, 903 N.E.2d 609, 611-612 (2008); Clair v. State, 324 S.C. 144, 478 S.E.2d 54, 55-56 (1996); see also United States v. Wilkes, 130 F.Supp.2d 222, 234 (D.Mass.2001) (finding quantity an element under the federal grand-jury right).

¶ 17. Our supreme court has held an amendment to an indictment is substantive if it “materially alter[s] facts which are the essence of the offense on the face of the

indictment as it originally stood.” Spears, 942 So.2d at 774 (¶ 6). Here, Jamison entered the courtroom charged with possessing .1 gram or less of cocaine and facing a one-year minimum sentence and an four-year maximum. See Miss.Code Ann. § 41-29-139(c)(l)(A). The court-authorized amendment to the indictment materially altered the originally pled facts by increasing the quantity charged to “between 2 and 10 grams,” resulting in a potential term of incarceration four times as harsh — a minimum of four but not more than sixteen years. See Miss.Code Ann. § 41 — 29—139(c)(1)(C). Jamison’s potential fine also increased from $10,000 to $250,000. Id. Jamison received a sentence of ten years’ imprisonment (six years to serve with four years suspended). His sentence exceeded the statutory maximum under the original charge (four years).

¶ 18. Drawing from the cited cases and our constitutional mandate, we find that because the court-authorized amendment to the indictment increased the charged drug quantity thereby exposing Jamison to a more severe sentence than authorized by the statutory maximum in the original indictment, it was an impermissible substantive amendment. We therefore vacate Jamison’s sentence and remand for resentencing under the lesser penalties prescribed for possessing less than .1 gram of cocaine. Miss.Code Ann. § 41-29-139(c)(l)(A).

II. Sufficiency of the Evidence

¶ 19. Jamison next claims the evidence is insufficient to support his conviction for cocaine possession. Our specific inquiry here requires that we consider whether sufficient evidence exists that Jamison possessed “[l]ess than one-tenth (0.1) gram” of cocaine in violation of Mississippi Code Annotated section 41-29-139(c)(l)(A) — the original charge for which Jamison had proper notice.

A. Standard of Review

¶ 20. Motions for a directed verdict and a JNOV challenge the legal sufficiency of the evidence. Nelson v. State, 10 So.3d 898, 905 (¶ 29) (Miss.2009). We review the trial court’s last ruling on the question of the legal sufficiency of the evidence — here the denial of Jamison’s motion for a JNOV. See e.g., Stewart v. State, 909 So.2d 52, 56 (¶ 16) (Miss.2005) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)).

¶21. When addressing the sufficiency of the evidence, we consider all evidence in a light most favorable to the State. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). Credible evidence consistent with guilt must be accepted as true. The State receives the benefit of all favorable inferences reasonably drawn from the evidence. Jones v. State, 20 So.3d 57, 64 (¶ 16) (Miss.Ct.App.2009) (citing Hughes v. State, 983 So.2d 270, 275-76 (¶¶ 10-11) (Miss.2008)). The jury resolves matters of weight and credibility. Reversal is proper when reasonable and fair-minded jurors could only find the accused not guilty. Id. Our primary duty in considering the sufficiency of the evidence is to determine whether from the evidence presented, it would be impossible for a reasonable juror to find the defendant guilty. Ducksworth v. State, 767 So.2d 296, 301 (¶ 10) (Miss.Ct.App.2000).

B. Cocaine Possession

¶22. Mississippi Code Annotated section 41-29-139(c) criminalizes the knowing or intentional possession of cocaine — a Schedule II controlled substance listed under Mississippi Code Annotated section 41-29-115(A)(a)(4) (Rev.2009). In deciding whether Jamison violated section 41-29-139(c)(l)(A) — which prohibits possession of less than .1 gram of cocaine — we must determine whether he possessed a detectable amount of cocaine. See Miss. Code Ann. § 41-29-139 (The weights set forth in section 41-29-139(c) “refer[] to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.”). Considering possession of a controlled substance, our supreme court has held “the statute requires no minimum amount[, and] ... any identifiable amount, however slight, constitute[s] a crime.” Hampton v. State, 498 So.2d 384, 386 (Miss.1986). To sustain a conviction for drug possession, “there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Curry v. State, 249 So.2d 414, 416 (Miss.1971). Possession may be either actual or constructive. Lewis v. State, 17 So.3d 618, 620 (¶ 8) (Miss.Ct.App.2009). “[Kjnowledge of the character of contraband, and actual or constructive possession of [it], may be proven by the State through circumstantial evidence.” Burgess v. State, 911 So.2d 982, 985 (¶ 11) (Miss.Ct.App.2005) (citing Martin v. State, 413 So.2d 730, 732 (Miss.1982)).

¶ 23. Jamison admitted numerous times during trial that he had possessed cocaine when he was with Smith on August 30, 2008. He specifically testified that he possessed a quantity of “about two to three grams of cocaine.” He added that he had provided “maybe a gram” of the drug to Smith. Jamison explained that he and Smith stayed at his friend’s home for several hours “getting high, snorting cocaine.” According to Smith, Jamison poured cocaine “all over his body and on his penis[.]” He then forced her “to suck here and lick there—lick that off.” Also, expert testimony established that blood samples taken from Smith on the date of this alleged incident tested positive for cocaine metabolites.

¶ 24. We find the proof that Jami-son possessed a detectable amount of cocaine is overwhelming. Jamison made clear that he was familiar with cocaine. He described to the jury the drug’s narcotic effect. And he admitted on the witness stand that he possessed at least two grams of the substance and gave some to Smith. Though Jamison now takes issue with the fact that cocaine was not seized from his person and chemically tested to confirm its identity as cocaine, we have rejected the notion that this is always required. See Boddie v. State, 850 So.2d 1205, 1208-09 (¶¶ 13-14) (Miss.Ct.App.2002) (“While proof by an expert as to the identity of a controlled substance is the preferred and best method of proof, the State should not be foreclosed from employing other avenues of proof, including circumstantial evidence.”) (citing United States v. Eakes, 783 F.2d 499, 505 (5th Cir.1986); People v. Steiner, 640 P.2d 250, 252 (Colo.Ct.App.1981); People v. Ortiz, 197 Ill.App.3d 250, 143 Ill.Dec. 481, 554 N.E.2d 416, 420 (1990); State v. Northrup, 16 Kan.App.2d 443, 825 P.2d 174, 178 (1992); State v. Nash, 233 Neb. 318, 444 N.W.2d 914, 919 (1989)). As the Fifth Circuit has explained: “[cjircumstantial evidence, supported by lay testimony, may establish the identity of the [controlled] substance involved.” United States v. Brown, 887 F.2d 537, 542 (5th Cir.1989) (citing Eakes, 783 F.2d at 505).

C. Corpus Delicti

¶ 25. To the extent Jamison suggests the State failed to establish the body of the crime, we turn to the supreme court’s explanation of the corpus delicti rule:

Corpus delicti is defined as the body or substance of the crime. It contains the following two elements which must be proved beyond a reasonable doubt in order to show that a crime has actually been committed: (1) the existence of a certain act or result forming the basis of a criminal charge and (2) the existence of criminal agency as the cause of this act or result. Poole v. State, 246 Miss. 442, 446, 150 So.2d 429, 431 (1963). “Every element, criminal charge, and criminal agency must be proved beyond a reasonable doubt.” Id. at 446, 150 So.2d 429.

Cotton v. State, 675 So.2d 308, 313 (Miss.1996).

¶ 26. The purpose behind the corroborative rule is “to reduce the risk of a defendant being convicted of a crime never committed.” Id. This safeguard requires that in cases involving out-of-court confessions, there must be “independent proof of corpus delicti beyond extrajudicial admissions or confessions.” Id. “The corpus delicti need only be proven by a preponderance of the evidence, and the confession may be used to raise the proof beyond a reasonable doubt.” Id.

¶ 27. Though Jamison challenges the corroborative evidence surrounding his admissions, we point out that the general corpus delicti requirement of independent proof applies only to out-of-court statements—or as our supreme court has put it “extrajudicial admissions or confessions.” Id. Here, Jamison’s multiple admissions about his cocaine possession came during his testimony from the witness stand at trial. And we find a defendant who elects to testify is just as competent to establish the corpus delicti as any other witness. Indeed, noted legal scholar John H. Wig-more explained that the corpus delicti rule “has of course no bearing upon an infraju-dicial confession,” which he likened to, “a plea of guilty.” 7 John H. Wigmore, Evidence § 2071, at 524 (Chadbourn Rev. 1978). We choose to follow the majority of jurisdictions that have looked favorably upon Wigmore’s reasoning and have not extended the corroboration requirement to admissions made by a defendant in a judicial proceeding.

¶ 28. We find Jamison’s sworn testimony from the witness stand is certainly sufficient, standing alone, to sustain his cocaine-possession conviction. Though it technically and legally needs no corroboration, the jury was also confronted with additional evidence, including Smith’s testimony that Jamison made her “lick” cocaine off of him, as well as forensic evidence of cocaine metabolites discovered in Smith’s blood.

¶ 29. For these reasons, we find sufficient evidence to sustain Jamison’s conviction for possession of less than .1 gram of cocaine. Because Jamison preserved his challenge to the amendment to his indictment, we vacate his sentence in part and remand for resentencing under the lesser penalties in Mississippi Code Annotated section 41-29-139(c)(l)(A).

¶ 30. THE JUDGMENT OF THE TU-NICA COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE IS AFFIRMED. THE SENTENCE OF TEN YEARS, WITH SIX YEARS TO SERVE AND FOUR YEARS SUSPENDED, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS VACATED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

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

      . We have substituted a pseudonym in place of the alleged victim’s real name.

      . The circuit court instructed the jury to find Jamison guilty of Count II if it found the State proved beyond a reasonable doubt that Jami-son intentionally or knowingly possessed cocaine "in an amount between 2 and 10 grams.” The jury returned a general verdict finding Jamison guilty of Count II.

      . We note the quantity alleged in Count II of Jamison’s indictment is listed as ".1 gram or less,” which does not correspond exactly with section 41 — 29—139(c)( 1 )(A). Section 41-29-139(c)(1)(A) criminalizes possession of "[IJess than one-tenth (0.1) gram.” (Emphasis added). However, the heading in Jamison's indictment lists the offense: "Possession of Controlled Substance MCA Section 41-29-139(c)(1)(a).” Where an indictment is ambiguous and two statutes potentially apply, the trial court must, for sentencing purposes, apply the statute imposing the lesser penalty. Clubb v. State, 672 So.2d 1201, 1203-06 (Miss.1996). Thus, on remand, the trial court must apply section 41-29-139(c)(l)(A) to re-sentence Jamison.

      . Id., (citing Blumenberg v. State, 55 Miss. 528 (1878); Peebles v. State, 55 Miss. 434 (1877); Miller v. State, 53 Miss. 403 (1876); McGuire v. State, 35 Miss. 366 (1858)).

      . We note that our analysis would differ if the sentence imposed under the amended indictment falls within the sentencing range allowed under the original indictment.

      . We note that the jury’s verdict necessarily includes a finding that Jamison possessed the weight of cocaine proscribed by section 41-29-139(c)(l)(A).

      . See, e.g., Landsdown v. United States, 348 F.2d 405, 410 (5th Cir.1965) (finding defendant’s own statements at trial could provide evidence of corpus delicti because "requirement of corroboration does not apply to infra-judicial statements made by the accused”); Manning v. United States, 215 F.2d 945, 950 (10th Cir.1954) ("The rule requiring a confession to be corroborated by proof of the 'corpus delicti’ has no application to infra-judicial confessions.”); People v. Ditson, 57 Cal.2d 415, 20 Cal.Rptr. 165, 369 P.2d 714, 731 (1962) ("It is ... elementary and unquestioned that a defendant who chooses to testify is just as competent to establish the corpus delicti as any other witness.”); State v. Staat, 251 Mont. 1, 822 P.2d 643, 647 (1991) (prosecution not required to provide independent evidence of corpus delicti at trial to corroborate defendant's “judicial confession,” admissions he had made in court at suppression hearing); Salazar v. State, 86 S.W.3d 640, 645 n. 18 (Tex.Crim.App.2002) ("[I]n-court ‘judicial’ confessionfs] need not be corroborated.”); Alvarez v. State, 374 S.W.2d 890, 891 (Tex.Crim.App.1964) ("The testimony of appellant from the witness stand is a judicial confession and as such needs no corroboration.”); State v. Liles-Heide, 94 Wash.App. 569, 970 P.2d 349, 351 (1999) (defendant’s testimony at trial established corpus delicti for purposes of conviction for driving under the influence of alcohol).