author: BARNES, J., ROBERTS, J.,

text:
    Earnest LADD, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01430-COA.
    Court of Appeals of Mississippi.
    May 1, 2012.

      Mollie Marie McMillin, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   BARNES, J.,

for the Court:

¶ 1. Earnest Ladd was convicted in the DeSoto County Circuit Court of conspiracy to commit grand larceny, grand larceny, burglary of a dwelling, and receiving stolen property. He was sentenced as a habitual offender to five years for conspiracy, ten years for grand larceny, twenty-five years for burglary, and five years for receiving stolen property. All sentences were ordered to be served concurrently in the custody of the Mississippi Department of Corrections (MDOC). Ladd was also ordered to pay a $1,000 fine to the Mississippi Crime Victims’ Compensation Fund and $800 in restitution to the victim, Sandra Brown. Following the denial of his motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, Ladd appealed, claiming the evidence is insufficient to support the verdicts for his four convictions.

¶ 2. In Part I of this opinion, we affirm the judgment for Count I, conspiracy to commit grand larceny. In Part II, we reverse the judgment of conviction for Count II, burglary of a dwelling, and remand for re-sentencing for trespass. In Part III, we affirm the judgment of conviction for Count III, grand larceny. Finally, in Part IV, we reverse and render the judgment of conviction for Count IV, receiving stolen property.

FACTS AND PROCEDURAL HISTORY

¶ 3. On December 27, 2007, John Hardy stopped at a grocery store in Askew, Mississippi, leaving his keys in the ignition of his silver 2006 Chevy Silverado truck with the engine running. While he was inside, the truck was stolen. He did not see who took the truck. He reported the theft to the Panola County Sheriffs Department.

¶ 4. Three days later, on December 30, 2007, Brown was sweeping the garage of her home in Southaven, Mississippi. She went inside the house for a glass of water, leaving the garage door open because she planned to leave for work soon. Hearing a noise outside, she went back to the garage and saw a white man and a black man standing there. Brown yelled at the men, asking them what they were doing. The two men then threw Brown’s lawn equipment from her garage into a silver truck and quickly backed out of her driveway. Brown testified that she got a “good solid look” at the men though the truck’s front window. The white man was the driver; the black man, who was later identified as Ladd, was a passenger.

¶ 5. Brown started to follow the men in her truck, but then decided to go home and call the police. When the police arrived, Brown reported that the following items had been taken: a Troy-Bilt lawn mower that Brown had bought for $400; a Husqvarna weed eater, for which she had paid $250; and a Black and Decker edger valued at $200. After the police left, Brown drove to an area of Memphis, Tennessee, as she had a suspicion the men might have gone there to sell her items. After turning down a street, Brown met the same men coming towards her in the silver truck. Brown called the police and reported the vehicle’s tag number and location. The police requested that Brown return home, and she complied.

¶ 6. However, still bothered by the events, Brown and her neighbors drove back to the same Memphis neighborhood a short time later. This time, Brown requested police assistance. Driving to the street where she had seen the truck earlier, they again met the silver truck with the two men inside. The white man was still driving, and Ladd was the passenger. Brown said the driver “floored it” and took out across a field and down a street with the police in pursuit. Brown returned home. Again, the men were not apprehended at that time.

¶ 7. Detective Todd Samples of the Sou-thaven Police Department was assigned to investigate Brown’s case. He processed the license plate number on the silver truck and identified it as Hardy’s stolen vehicle. A Panola County investigator gave Detective Samples the name of Terry Stuart as the possible thief of the truck. Brown later identified Stuart from a photographic spread as the white man who was in her garage and drove the silver truck.

¶ 8. On January 24, 2008, a high-speed car chase in Memphis, following an unrelated burglary, resulted in the Memphis Police Department’s apprehending Stuart and Ladd. Brown identified Ladd as the passenger in the silver truck who took part in the burglary. Brown also identified Ladd at trial as the man she saw in her garage and twice as a passenger in the silver truck.

¶ 9. Ladd was convicted by a jury in the DeSoto County Circuit Court of Count I, conspiracy to commit grand larceny; Count II, grand larceny; Count III, burglary of a dwelling; and Count IV, receiving stolen property, the silver Chevy Silverado truck. He was sentenced as a habitual offender to five years for conspiracy, ten years for grand larceny, twenty-five years for burglary of a dwelling, and five years for receiving stolen property. All sentences were ordered to run concurrently in the custody of the MDOC, and Ladd was ordered to pay $1,000 to the Mississippi Crime Victims’ Compensation Fund and $800 in restitution to Brown for her stolen lawn equipment, which was never retrieved.

¶ 10. At trial, Ladd moved for a directed verdict, which the trial judge denied. Ladd subsequently filed a post-trial motion for a JNOV or, in the alternative, a new trial. The trial court denied Ladd’s post-trial motion, and Ladd now appeals his four convictions, claiming that the evidence was insufficient to support the verdicts.

DISCUSSION AND ANALYSIS

¶ 11. Ladd claims that the evidence was insufficient to support his convictions for Counts I-IV. When reviewing the legal sufficiency of evidence, an appellate court considers the evidence “in the light most favorable to the prosecution.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). 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,”’ the appellate court will uphold the verdict. Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). However, where the evidence “ ‘point[s] 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. (citing Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

PART I. COUNT I, CONSPIRACY TO COMMIT GRAND LARCENY

¶ 12. Ladd argues that the State failed to present any evidence that he conspired with Stuart to commit grand larceny. He claims the only evidence of the crime of conspiracy comes from Brown’s testimony that she saw the two men stealing items from her garage. Without proof of any agreement to commit grand larceny, Ladd claims the evidence is insufficient to support his conviction for conspiracy.

¶ 13. When two or more persons combine or agree to commit a crime, they violate our law of conspiracy. Miss.Code Ann. § 97 — 1—1 (1 )(a) (Supp.2011). “A conspiracy is a completed offense, requiring proof of no overt act done in pursuance thereof.” Ford v. State, 546 So.2d 686, 688 (Miss.1989) (citations omitted). Each conspirator “must intend a common plan and know its common purpose.” Id. (citing McCray v. State, 486 So.2d 1247, 1251 (Miss.1986)). The agreement to commit the criminal act “need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators.” Id.

¶ 14. Ladd cites Franklin v. State, 676 So.2d 287, 288 (Miss.1996), for the proposition that for a conspiracy to exist, there must be a “union of the minds” among the alleged conspirators. In Franklin, the only evidence produced to convict Roderick Franklin of conspiracy to commit murder was that he and some other teenagers went to “mess with” a homeless man. Id. at 289. The supreme court held: “There is no evidence to indicate that ... Franklin ... recognized that, by ‘messing with’ the victim, he had entered into a common plan to commit murder or that he knowingly intended to further the common purpose of that plan.” Id. Thus, the Franklin court reversed and rendered the conviction of conspiracy, concluding that there was no evidence of a “union of the minds” between the boy who pulled the trigger and Franklin. Id.

¶ 15. However, we find the facts in Franklin distinguishable from this case. Brown testified that the two men were in her garage, and when she discovered them, they threw her lawn equipment into the back of a truck and sped away. It can be inferred from the actions of Ladd and Stuart that a common plan to steal items from Brown’s garage was agreed upon. They were both in Brown’s garage, uninvited, and they worked in unison to load Brown’s personal property into the back of a pickup. When caught “red-handed” by Brown, both jumped into the truck and drove away hurriedly. Under these circumstances, we find that the trial court did not err by denying Ladd’s motions for a directed verdict and a JNOV as to Count I, conspiracy to commit grand larceny, and therefore affirm Ladd’s conviction on this count.

PART II. COUNT II, BURGLARY OF A DWELLING

¶ 16. Ladd claims that since he walked through an open garage door, the “breaking” element of the crime of burglary of a dwelling was not satisfied. Rather, he contends that the evidence produced a showing of no more than a trespass charge against him. Ladd did not raise the issue regarding the “breaking” element in his motion for directed verdict or his motion for a JNOV. Thus, this issue is procedurally barred from appellate review. See Sheffield v. State, 749 So.2d 123, 126 (¶ 10) (Miss.1999) (finding defendant’s argument procedurally barred for appellate purposes where he made no specific challenge to the State’s proof that the structure burglarized was a dwelling).

¶ 17. However, Ladd argues that this Court may address this issue by finding plain error. A review under the plain-error doctrine is necessary when a party’s “substantive or fundamental rights are affected,” and the error results “in a manifest miscarriage of justice.” Jenkins v. State, 75 So.3d 49, 57 (¶ 22) (Miss.Ct.App. 2011) (citations omitted). In Evans v. State, 919 So.2d 231, 235 (¶ 15) (Miss.Ct. App.2005), this Court held:

It is not open to reasonable debate that the right-not to be convicted of an offense unless the State proves beyond a reasonable doubt each and every element of the offense-is a fundamental right anchored in our constitution and the jurisprudence of this state. And respecting fundamental rights, our law is well settled that a plea of guilty does not waive the failure to charge an essential element of the offense. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). By comparison, we see no reason why a defendant’s failure to object to the State’s failure to prove and present instructions on an essential element of the offense, ought to waive the State’s failure to meet its burden. Therefore, we notice as plain eiror the matter of the insufficiency of the proof of an element of the crime with which Evans was charged and find that the State failed to meet its burden of proof.

(Emphasis added). Likewise, employing the plain-error doctrine, we find that the State failed to meet its burden of proof that Ladd’s actions satisfied the essential element of breaking.

¶ 18. The crime of burglary of a dwelling is codified in Mississippi Code Annotated section 97-17-23(1) (Supp.2011) as follows:

Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by commitment to the custody of the Department of Corrections for not less than three (3) years nor more than twenty-five (25) years.

The jury was instructed to find Ladd guilty of burglary of a dwelling if it found beyond a reasonable doubt that: (1) Brown’s house was a dwelling; (2) Ladd “unlawfully broke and entered said dwelling”; and (3) Ladd intended to commit the crime of larceny once inside. The jury was not given a definition of breaking. There is nothing in the record to indicate that Ladd or Stuart used any act of force in entering Brown’s garage. Brown testified she left the garage door up because she was getting ready to leave for work. A photograph of Brown’s garage introduced into evidence shows that the garage door is up. Ladd argues the State failed to prove the “breaking” element necessary for conviction of burglary of a dwelling as the proof simply showed that he walked through an open garage door.

¶ 19. “It is well-established [law] in Mississippi that a breaking is conducted by an act of force, regardless of how slight, necessary to be used in entering a building, such as turning a knob, a slight push to further open a door, or raising a latch.” Davis v. State, 910 So.2d 1228, 1231 (¶ 8) (Miss.Ct.App.2005) (citing Gross v. State, 191 Miss. 383, 391, 2 So.2d 818, 820 (1941)). “To constitute burglary, a ‘structure must generally be closed. Otherwise the entry is merely a trespass, not a “breaking” and a burglary.’ ” Harris v. State, 68 So.3d 754, 757 (¶ 11) (Miss.Ct.App.2011) (quoting Hill v. State, 929 So.2d 338, 340 (¶ 5) (Miss.Ct.App.2005)).

¶ 20. The State cites to our opinion in Chaney v. State, 802 So.2d 113, 115 (¶ 9) (Miss.Ct.App.2001), wherein we held that passage through a door that was propped open “broke the plane” and was an “act or force, however, slight, employed to effect an entrance.” In Chaney, the only evidence produced by the State as to the breaking element were two written statements by Lederrick Chaney and his co-defendant, given shortly after their arrest. The statements, which were the sole direct evidence of Chaney’s participation in the theft, expressed that Chaney and his co-defendant were alerted by an associate about a clothing store that had already been burglarized. When they arrived to steal some merchandise, they found the window already broken, and the door pushed open. According to the statements, Chaney was the lookout, while the other two walked inside the open door. We found this evidence was sufficient to prove a “breaking,” and we upheld Chaney’s burglary conviction. We subsequently applied Chaney to a similar situation in Brown v. State, 48 So.3d 614, 616 (¶ 9) (Miss.Ct.App.2010) and upheld a conviction of burglary of a dwelling, where the defendant claimed he merely walked in through an open door.

¶ 21. In Chaney, the votes were split 5-5. Judge Myers wrote the majority opinion, affirming the conviction, and Judge Southwick wrote the dissenting opinion, arguing that the majority opinion had stretched the statute’s application too far. Upon further examination, we conclude that Chaney was wrongly decided. In upholding Chaney’s conviction and finding that crossing “the plane” of the door constituted a “breaking,” the majority relied upon this Court’s findings in Genry v. State, 767 So.2d 302 (Miss.Ct.App.2000). However, Michael Genry’s conviction for burglary was upheld because it constituted a “ ‘constructive breaking’ which occurs when an accused’s entry into the questioned premises was gained by his use of threat, deceit, fraud or trickery.” Id. at 309 (¶ 21) (quoting Templeton v. State, 725 So.2d 764 (¶ 6) (Miss.1998)). Chaney dealt with entry of an already open door. There was no fraud or deceit used to gain entrance. While this action satisfies the “entering” element of burglary, we find that it does not satisfy the “breaking” element.

¶ 22. Adopting the reasoning of Judge Southwick’s dissent in Chaney, we conclude that the mere act of walking through a raised, open garage door does not constitute an “act or force, however slight, employed to effect an entrance” and is not a “breaking.” Therefore, our holding in Chaney is overruled.

¶ 23. In conclusion, we find that Ladd’s act of walking through Brown’s open garage door does not satisfy the necessary “breaking” element to warrant a charge for burglary of a dwelling. Ladd’s actions, however, do warrant a lesser-included charge of trespass upon Brown’s property. See Miss Code Ann. § 97-17-93 (Supp.2011). Trespass is a lesser-included offense of burglary. Hill, 929 So.2d at 341 (¶ 11). “The elements of trespass include wilfully and maliciously entering another’s property without permission or remaining on his or her property after being told to leave.” Id. We reverse the trial court’s judgment for burglary of a dwelling and remand the case for sentencing Ladd on the charge of trespass.

PART III. COUNT III, GRAND LARCENY

¶24. Ladd claims that because the value of the stolen property was not adequately proven at trial, there was not sufficient evidence to support his conviction for grand larceny. The grand larceny statute reads in pertinent part: “Every person who shall be convicted of taking and carrying away, feloniously, the personal property of another, of the value of Five Hundred Dollars ($500.00) or more, shall be guilty of grand larceny[.]” Miss.Code Ann. § 97-17-41(1) (Rev. 2006). The Mississippi Supreme Court “has held that the value of a stolen item is an essential element of grand larceny, and the State’s failure to prove the value warrant[s] resen-tencing for petit larceny.” Patton v. State, 34 So.3d 563, 573 (¶33) (Miss.2010) (citing Henley v. State, 729 So.2d 232, 238(¶28) (Miss.1998)). In determining the value of the stolen property, the appropriate measure “is the market value of the property at the time and place of the larceny; the original cost of the property or any special value to the owner personally is not considered.” Thompson v. State, 910 So.2d 60, 63 (¶ 9) (Miss.Ct.App.2005) (citation omitted).

¶25. Brown provided the only testimony of the value of the lawn equipment. She testified that the stolen items were: (1) a Troy-Bilt lawn mower that she bought for $400; (2) a Husqvarna weed eater, for which she paid $250; and (3) a Black and Decker edger purchased for $200, for a total loss of $850. Furthermore, Brown stated that none of the three items were more than a year old and that the lawn mower was only a few months old. She also confirmed that all of the equipment was in working condition.

¶ 26. In Smith v. State, 881 So.2d 908, 910-11 (¶¶ 10-11) (Miss.Ct.App.2004), this Court held that while there may not be direct evidence of the value of stolen items, the owner of the merchandise may establish the value of the stolen property by testifying about what he paid for the stolen items. This type of testimony “circumstantially provide[s] a basis from which the jury could infer” the value of the items. Id. at 911 (¶ 11). The purchase price of the items is something about which the owner has personal knowledge; therefore, he should be allowed to testify about what he had paid for the item. Id. at 910 (¶ 10). In a recent case, Gunn v. State, 56 So.3d 568, 571 (¶¶ 11-12) (Miss.2011), the Mississippi Supreme Court held that the victim’s testimony regarding the recent purchase value of the stolen items “was sufficient for a reasonable juror to find that the value of the stolen tools was more than $500.” The supreme court determined that “[although purchase price of the stolen tools is not direct proof of the market value at the time of the theft, it is circumstantial evidence of value.” Id. at (¶ 11) (citing Williams v. State, 994 So.2d 821, 825-26 (¶¶ 13-14) (Miss.Ct.App.2008)); see also Ezell v. State, 956 So.2d 315, 322 (¶ 23) (Miss.Ct.App.2006) (“[Tjhough the testimony about the original purchase price was not the strongest possible evidence of market value, it circumstantially provided a basis from which the jury could reasonably infer that the [stolen items] were worth at least $250 at the time of the theft.”).

¶ 27. Brown testified that she paid $850 for the stolen items and that all three items were less than a year old. We find Brown’s testimony sufficient for the jury to infer, beyond a reasonable doubt, that the stolen lawn equipment was valued at more than $500. Therefore, we find this issue without merit and affirm Ladd’s conviction for Count III, grand larceny.

PART IV. COUNT IV, RECEIVING STOLEN PROPERTY

¶ 28. Ladd claims there was no evidence to support the charge for receiving stolen property. The indictment charged that Stuart and Ladd did:

wilfully, unlawfully and feloniously, possess, receive, retain or dispose certain personal property of John Hardy, to-wit: One (1) 2006 Chevrolet pickup truck, of the total and aggregate value in excess of $500.00 ... knowing that said property had been stolen, or having reasonable grounds to believe said property had been stolen, and without the intent to restore said property to its owner.

¶ 29. The State claims that Ladd’s argument is procedurally barred because he only made a slight argument about receiving stolen property in his motion for a directed verdict. The record shows that Ladd’s attorney made the following argument at trial: “I would submit that [there] hasn’t been shown a prima facie case sufficient ... to get Counts 3 and 4 ... to the jury, Your Honor.” Though succinct, Ladd’s argument is simply that the State did not make out a prima facie case sufficient to convict Ladd of receiving stolen property. The trial court even responded to Ladd’s claim, stating that Counts II, III, and IV (receiving stolen property) “have clearly met a prima facie case.” Therefore, we find that Ladd addressed this issue before the trial court.

¶ 30. Mississippi Code Annotated section 97-17-70(1) (Supp.2011) states:

A person commits the crime of receiving stolen property if he intentionally possesses, receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is possessed, received, retained or disposed of with intent to restore it to the owner.

It is no defense to the crime that the person who stole the property “has not been convicted, apprehended, or identified.” Miss.Code Ann. § 97-17-70(2) (Supp.2011). Therefore, “the State must not only prove the defendant’s possession, receipt, retention or disposition of stolen property, but must also show that the defendant knew or had reasonable grounds to believe the property had been stolen.” Short v. State, 929 So.2d 420, 425 (¶ 13) (Miss.Ct.App.2006). It is not necessary to prove that the defendant took the stolen property into his hands, but rather that the defendant “has performed some act with respect to the property, that he has exercised dominion or control over it, though such need not have been exclusive.” Williams v. State, 595 So.2d 1299, 1303 (Miss.1992). The necessary showing may be made through “[inferential evidence” that the defendant “knew the origins and ownership” of the stolen item. Id.

¶31. While there was evidence that Ladd exerted some dominion or control over the vehicle through the act of loading Brown’s lawn equipment into the back of the truck, the State failed to present any evidence, direct or inferential, that Ladd was aware that the truck itself was stolen. The State acknowledged during oral argument before this Court that the basis for this conviction was “weak.” The only evidence linking Ladd to the stolen truck is Brown’s testimony that each time she saw the two men in the truck, Ladd was a passenger. The keys were in the truck when it was stolen; therefore, Stuart likely used a key to turn on the ignition whenever Ladd was in the vehicle. The record does not disclose how long Ladd knew Stuart or whether he would have known that the truck was not Stuart’s property.

¶ 32. Ladd’s status as a mere passenger in the stolen vehicle is not sufficient to prove, beyond a reasonable doubt, that Ladd intentionally possessed, received, retained or disposed of the truck “knowing that it ha[d] been stolen or having reasonable grounds to believe it ha[d] been stolen!.]” Further, the fact that Stuart evaded police while driving the truck does not imply that Ladd knew the truck was stolen. In both instances, there were stolen goods in the truck; so there was nothing in the evasions from which a jury might infer that Ladd knew the truck was stolen. Accordingly, we reverse and render Ladd’s conviction for Count IV, receiving stolen property, as the evidence is insufficient to support the verdict.

¶ 33. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, CONSPIRACY TO COMMIT GRAND LARCENY, AND SENTENCE OF FIVE YEARS AS A HABITUAL OFFENDER; AND COUNT III, GRAND LARCENY, AND SENTENCE OF TEN YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY $1,000 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND AND $800 IN RESTITUTION TO THE VICTIM, IS AFFIRMED. THE CONVICTION OF COUNT II, BURGLARY OF A DWELLING, AND SENTENCE OF TWENTY-FIVE YEARS IS REVERSED, AND THIS CASE IS REMANDED FOR SENTENCING FOR TRESPASS. THE CONVICTION OF COUNT IV, RECEIVING STOLEN PROPERTY, IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

LEE, C.J., ISHEE, RUSSELL AND FAIR, JJ., CONCUR. IRVING, P.J., AND MAXWELL, J., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, P.J., AND CARLTON, J.; MAXWELL, J., JOINS THIS OPINION IN PART.

ROBERTS, J.,

concurring in part and dissenting in part:

¶ 34. I concur with the majority’s decision to affirm Ladd’s convictions for grand larceny and conspiracy to commit grand larceny. However, I disagree with the majority’s decision to reverse the circuit court’s judgment regarding Ladd’s convictions for burglary of a dwelling and receiving stolen property. I would affirm all four of Ladd’s convictions.

Count II: Burglary of a Dwelling

¶ 35. The majority reverses one of our learned circuit judges on an issue never presented to him. We have often repeated in cases too numerous to list the time-honored principle that we will not find that a trial judge erred on a matter that was never presented to him or her for a decision. See, e.g., Haley v. State, 864 So.2d 1022, 1024 (¶ 8) (Miss.Ct.App.2004) (citing Logan v. State, 773 So.2d 338, 346 (¶ 29) (Miss.2000)). Yet the majority disregards this principle by exercising its discretion in applying the plain-error doctrine found in Rule 28(a)(3) of the Mississippi Rules of Appellate Procedure, which provides that “[n]o issue not distinctly identified shall be argued by counsel, except upon request of the court, but the court may, at its option, notice a plain error not identified or distinctly specified.” My review of established jurisprudence on the plain-error doctrine clearly indicates its discretionary use in this case to be quite inappropriate.

¶ 36. There is no dispute that the circuit court never had an opportunity to decide Ladd’s claim, raised for the first time on appeal, that there is insufficient evidence that he committed a “breaking” when he and Terry Stuart went inside Sandra Brown’s garage and stole her lawn equipment. However, the majority finds that the circuit court committed plain error when it allowed Ladd to be convicted for burglary of a dwelling. I do not join the majority’s decision because this Court should not ignore precedent established by the United States Supreme Court.

¶ 37. In the context of plain error, ‘“[p]lain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citations omitted). “[BJefore an appellate court can correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affects substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing Olano, 507 U.S. at 732, 113 S.Ct. 1770). It is debatable whether there was “error” in this case. But there was no “plain” error that would have required that the circuit court essentially raise the argument that Ladd did not raise himself.

¶ 38. In Johnson, the Supreme Court explained that Olano did not decide when an error must be plain to be reviewable. Id. at 467, 117 S.Ct. 1544. The Johnson Court clarified that “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] ... it is enough that an error be ‘plain’ at the time of appellate consideration.” Id. at 468, 117 S.Ct. 1544. Thus, the analysis boils down to two primary issues: (1) whether the law was “settled” at the time of Ladd’s trial; and (2) whether the law at the time of this appeal is “clearly contrary” to what had been “settled” at the time of Ladd’s trial.

1. Whether the Law was Settled at the Time of Ladd’s Trial

¶ 39. The law regarding what qualifies as a “breaking” was not “settled” at the time of Ladd’s trial. The majority is correct that in Chaney v. State, 802 So.2d 113, 115 (¶ 9) (Miss.Ct.App.2001), this Court held that passage through an opened door was sufficient proof of a “breaking.” In Chaney, this Court was evenly split on the “breaking” element of burglary. Chaney had been handed down well before Ladd’s trial. However, this Court handed down Brown v. State, 48 So.3d 614 (Miss.Ct.App. 2010) in October 2010 — which was approximately five months after Ladd went to trial. Brown cannot be considered “settled” law five months before it existed.

¶ 40. What is more, in Hill v. State, 929 So.2d 338, 340 (¶ 5) (Miss.Ct.App.2005), we held that “the structure must generally be closed. Otherwise the entry is merely a trespass, not a ‘breaking’ and a burglary.” Because the evidence had merely demonstrated that the defendant in Hill had stolen tools from a three-walled shed, and there was no evidence of an actual breaking, we found insufficient evidence to support his burglary conviction. Id. at 341 (¶ 9). To summarize, at the time of Ladd’s trial, this Court, evenly divided, held in Chaney that there is sufficient evidence of a “breaking” simply by entering an open door. But we also held in Hill that there is insufficient evidence of a “breaking” when one simply enters a three-walled structure. An open garage is no different than a three-walled structure. Ladd could have argued that there was insufficient evidence that he committed a “breaking” based on Hill, but he never raised the substance of that argument at trial. More significant to the present analysis, the law cannot be considered “settled” when precedent is inconsistent. Thus, the second prong of the plain-error analysis is not satisfied. It follows that there can be no “plain” error.

2. Whether the Current Law is “Clearly Contrary”

¶ 41. As previously mentioned, the Supreme Court has held that “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal-it is enough that an error be ‘plain’ at the time of appellate consideration.” Johnson, 520 U.S. at 468, 117 S.Ct. 1544. Even assuming that inconsistent precedent could be stretched to qualify as “settled” at the time of Ladd’s trial, a plain-error analysis still fails because the law regarding what constitutes sufficient proof of a breaking is not “clearly contrary” to the law at the time of Ladd’s trial. There have been no intervening decisions on the question of what constitutes a “breaking.” The Mississippi Supreme Court has not addressed this issue. This Court is not the ultimate authority on Mississippi law. We may advance this issue or clarify our prior decisions, but reversing our prior decisions does not mean the law at the time of appeal is “clearly contrary” to the law at the time of Ladd’s trial. This is patently true when the majority overrules Chaney and Brown in this very case. Consequently, the second prong of the plain-error analysis fails. It follows that a plain-error analysis is inappropriate under these circumstances.

¶ 42. Essentially, the majority finds the circuit court should have raised an argument for Ladd despite the conflict in precedent because this Court would later reverse its prior decisions. “When the state of the law is unclear at trial and only becomes clear as a result of later authority, the [trial] court’s error is perforce not plain; we expect [trial] judges to be knowledgeable, not clairvoyant.” United States v. Turman, 122 F.3d 1167, 1170 (9th Cir. 1997) (emphasis added). The law was unclear during Ladd’s trial. It was unclear when he appealed. To an extent, it remains unclear. Because the Supreme Court prohibits a plain-error analysis under these circumstances, I dissent from the majority’s decision to conduct such an analysis.

¶ 43. Additionally, the third prong of the plain-error analysis also fails. That third prong requires that the plain error must “affect substantial rights.” Johnson, 520 U.S. at 467, 117 S.Ct. 1544. I do not find that Ladd’s substantial rights were affected. We must consider the evidence in the light most favorable to the prosecution, which “receives the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Hughes v. State, 983 So.2d 270, 276 (¶ 11) (Miss.2008). It is reasonable to infer that there was some evidence of a possible “breaking.” The photographs introduced at trial depict one image of Brown’s garage door partially down and one image of Brown’s garage door completely open. It is reasonable to infer that the officer who took the photographs asked Brown to demonstrate the position of her garage door before and after Ladd and Stuart stole her push lawnmower. It is possible that Ladd and Stuart carried Brown’s push lawnmower out of her garage. Under those circumstances, it is equally possible that Ladd and Stuart would have had difficulty getting the handle of the push lawnmower out of Brown’s semi-closed garage door. It is also possible that Ladd or Stuart pushed the garage door open further-instead of simply lowering the end of the push lawnmower that is attached to the handle. Thus, the jury could have found that Ladd and Stuart committed a “breaking” necessary to demonstrate burglary. Either Ladd’s attorney or the prosecutor could have questioned the victim, Brown, specifically about the condition of the garage door before and after Ladd and Stuart stole her lawn equipment. For whatever reason, neither did.

¶ 44. I find no plain error in this case. The law was not settled at the time of Ladd’s trial. The law did not change before Ladd’s appeal. The circuit court should not be held to a standard that requires clairvoyance. Moreover, even if the three prongs of the plain-error analysis had been satisfied, “an appellate court must then determine whether the forfeited error seriously affects the fairness, integrity, or public reputation of judicial proceedings before it may exercise its discretion to correct the error.” Johnson, 520 U.S. at 469-70, 117 S.Ct. 1544 (internal quotations omitted). As in Johnson, I find that there is no basis to conclude that affirming Ladd’s burglary conviction affects the fairness, integrity, or public reputation of judicial proceedings. “Indeed, it would be the reversal of a conviction such as this which would have that effect.” Id. at 470, 117 S.Ct. 1544. Accordingly, I dissent from the majority’s decision to reverse the circuit court’s judgment of conviction for burglary.

Count IV: Receiving Stolen Property

¶ 45. The majority finds that Ladd preserved this issue when he argued that the prosecution had not “shown a prima facie case sufficient ... to get ... to the jury.” Additionally, the majority finds that Ladd preserved this issue because the circuit court addressed Ladd’s argument when the circuit court stated the prosecution “clearly [presented] a prima facie case.” With utmost respect, I disagree with the concept that a trial court’s rejection of a vague and generic argument somehow converts that argument into one that may escape the clearly established procedural bar.

¶46. The Mississippi Supreme Court has held that a motion for directed verdict and a judgment notwithstanding the verdict must be specific. See Banks v. State, 394 So.2d 875, 877 (Miss.1981). If a motion for directed verdict or JNOV are not specific, the trial court “will not be determined to be in error for denying the motion.” Gary v. State, 11 So.3d 769, 771 (¶ 8) (Miss.Ct.App.2009) (emphasis added). A “general objection that the verdict is not based on sufficient evidence” procedurally bars a challenge to the sufficiency of the evidence on appeal. Woods v. State, 19 So.3d 817, 820 n. 2 (Miss.Ct.App.2009) (internal quotations omitted).

¶ 47. In Bingham v. State, 723 So.2d 1193, 1195 (¶ 6) (Miss.Ct.App.1998), a criminal defendant had moved for a directed verdict at the close of the prosecution’s case-in-chief. We declined to consider the sufficiency of the evidence on appeal because the defendant’s motion “was not specific in nature as to which of the elements of the crime the [prosecution had] allegedly failed to prove.” Id. We noted that a defendant “must state specifically wherein the [prosecution has] failed to make out a prima facie case.” Id. (citation omitted). “In the absence of such specificity, the trial court will not be put in error for overruling the same." Id. (emphasis added).

¶ 48. Ladd argued that the prosecution had not “shown a prima facie case sufficient ... to get ... to the jury.” Ladd did not specifically refer to the charge that he was in possession of stolen property. He did not indicate which element the prosecution had failed to prove beyond a reasonable doubt. His argument was no different that the procedurally barred arguments raised in Bingham or Woods. The majority cites no authority that a circuit court’s response to a defendant’s vague argument somehow transforms that argument into one that is preserved for appeal. I find that Ladd did not sufficiently preserve this issue. Accordingly, I dissent from the majority’s decision to ignore clear precedent and review Ladd’s vague, generic, and conclusory argument.

¶ 49. The procedural bar notwithstanding, I find there is sufficient evidence for the jury to conclude that Ladd is guilty of receiving stolen property. “[T]he statutory requirements for the crime of receiving stolen property are (1) the possession, receipt, retention or disposition of personal property (2) stolen from someone else (3) with knowledge or a reasonable belief that the property is stolen.” Washington v. State, 726 So.2d 209, 212-13 (¶ 10) (Miss. Ct.App.1998). Guilty knowledge — which is the “gist” of proving possession of stolen property — may be proved by “any surrounding facts or circumstances from which knowledge may be inferred.” Id. at 213. “ ‘Receive’ within the statute contemplates that the accused has performed some act with respect to the property, that he has exercised dominion or control over it, though such need not have been exclusive.” Williams v. State, 595 So.2d 1299, 1303 (Miss.1992). It is obvious that both Stuart and Ladd were using a stolen pickup truck to transport their stolen lawn equipment from the crime scene.

¶ 50. Hardy testified that his $24,000 pickup truck was stolen on December 27, 2007, while he was inside the Corner Grocery Store in the Askew community of Panola County. The Askew community is approximately sixty miles from downtown Memphis. The stolen pickup truck had a Mississippi license plate. Stuart was a prime suspect in the theft. It is reasonable to conclude that Ladd and Stuart were friends or at least close acquaintances. Ladd chose not to testify or call any witnesses in his defense. Brown testified that three days after the theft of Hardy’s truck, Ladd and Stuart were in the stolen pickup truck when they stole lawn equipment from her garage. Ladd and Stuart fled when Brown confronted them. When Brown successfully encountered Ladd and Stuart in Memphis later that same day, Ladd and Stuart were still in the stolen pickup truck. Again, Ladd and Stuart fled from Brown. Later that day, Brown was accompanied by officers with the Memphis Police Department when they saw Ladd and Stuart. Yet again, Ladd and Stuart were in the stolen truck. Ladd and Stuart successfully fled from the officers, who were in hot pursuit, by driving across an open field. At that time, Ladd had no reason to suspect that he and Stuart were being pursued for burglarizing Brown’s garage in Mississippi. Ladd and Stuart were seen together in the stolen pickup truck three different times on December 30, 2007. Ladd and Stuart were also together in the stolen pickup truck three weeks later during a burglary in progress that led into Memphis. When the stolen pickup truck was recovered by officers with the Memphis Police Department, the pickup truck had approximately $11,000 in damage.

¶ 51. A “defendant’s ... actions subsequent to receipt [of property] may have a bearing on whether he knew or should have known the property to be stolen.” Whatley v. State, 490 So.2d 1220, 1222 (Miss.1986) (citation and internal quotations omitted). In my opinion, assuming all inferences favorable to the prosecution’s case to be true, twelve sworn jurors could have concluded that Ladd reasonably believed that the pickup truck he and Stuart used to effectuate their crime spree had been stolen. Accordingly, I dissent from the majority’s decision to reverse Ladd’s conviction for receipt of stolen property and render judgment of acquittal.

GRIFFIS, P.J., AND CARLTON, J., JOIN THIS OPINION. MAXWELL, J., JOINS THIS OPINION IN PART.

      . According to Brown and the investigator, the photograph accurately reflected the way Brown’s house looked on the day of the burglary.

      . As aptly noted by the New Mexico Court of Appeals in State v. Sorrelhorse, 150 N.M. 536, 263 P.3d 313, 318 (¶ 19) (N.M.Ct.App.2011): "[T]he breaking element require[s] some aspect of force in order to distinguish it from the element of entering[.]’’

      . At oral argument, this Court asked the State whether it was aware of any authority from any other jurisdiction which supported our holding in Chaney; the State replied in the negative.

      . To the extent that our holding in Brown relied on Chaney, it, too, is overruled. In Brown, the investigator, Randy Blakely, testified that Brown stated the door was "already open.” Brown, 48 So.3d at 616 (¶ 5). We concluded that it was “unclear if [the testimony] meant the door was unlocked or standing open,” as an evidentiary photograph obtained from security cameras appeared to show Brown opening the porch door. Id. at (¶¶ 8-9). We found the distinction of whether the door was open or whether Brown opened the door, to be irrelevant as both constituted a "breaking,” relying on Chaney and Moore v. State, 933 So.2d 910, 922 (¶41) (Miss.2006) (defendant’s walking through an unlocked door is considered a "breaking”). Id. at (¶ 9).


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Rita Kees LAMBERT, Individually, and as Personal Representative of all Wrongful Death Beneficiaries and Heirs at Law of the Decedent, Brian Michael Kees, Appellants v. SAFECO INSURANCE COMPANY OF AMERICA, Appellee.
    No. 2011-CA-00166-COA.
    Court of Appeals of Mississippi.
    May 8, 2012.

      Matthew Warren Kitchens, Daniel Wesley Kitchens, attorneys for appellants.
    W. Wright Hill Jr., Melissa Annelle Rose, Jan F. Gadow, Jackson, attorneys for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Rita Kees Lambert, individually and as a personal representative of all heirs at law and wrongful-death beneficiaries of her son, Brian Michael Kees, filed a wrongful-death suit in Rankin County Circuit Court against A1 Ellis and John Does 1-10, alleging that Brian had suffered physical injuries and death as a result of Ellis’s gross negligence. The circuit judge assessed $75,000 in damages against Ellis. The circuit judge ultimately entered a final judgment finding that Ellis was not entitled to liability coverage under the homeowner’s insurance policy issued to him by Safeco Insurance Company of America (Safeco) for the $75,000 judgment entered against him as a result of Brian’s death. Lambert now appeals.

FACTS

¶ 2. On August 13, 2005, Brian and his father, Michael Kees, attended a swimming party at Ellis’s home in Brandon, Mississippi. Ellis and Michael were billiards teammates. Ellis claimed that at some point during the pool party, Michael went into Ellis’s home and stole money. Michael exited the house with Brian and hurried to his car. After concluding that Michael had stolen money from him, Ellis retrieved his pistol and followed Michael outside. As Michael exited the driveway, Ellis fired his pistol at Michael’s car, which Ellis claimed was an attempt to disable and stop the car. Ellis stated that he did not know that Brian was in the vehicle. One of the bullets ricocheted off of the pavement and hit Brian. Brian later died as a result of the gunshot wound.

¶ 3. Ellis was arrested and charged with Brian’s murder. Ellis pled guilty to the lesser charge of manslaughter by culpable negligence, and he was sentenced to a term of incarceration, house arrest, and probation.

¶ 4. On August 15, 2005, Lambert, individually and as a personal representative of all heirs at law and wrongful-death beneficiaries of Brian, filed a wrongful-death suit in the Rankin County Circuit Court against Ellis and John Does 1-10. Ellis answered and denied liability for damages. On May 22, 2008, the circuit court entered an agreed order permitting Safeco, Ellis’s homeowner’s insurance carrier, to intervene in the wrongful-death action. On June 4, 2008, Safeco filed a complaint for declaratory judgment, asserting that Safe-co’s homeowner’s insurance policy did not provide Ellis with liability coverage or a defense or indemnification for any claims arising out of Lambert’s wrongful-death suit. Safeco then filed a motion for summary judgment. Following a hearing, the circuit court denied Safeco’s motion, finding genuine issues of material fact on the issue of coverage. Safeco filed an interlocutory appeal, which the Mississippi Supreme Court denied. Safeco then filed a motion for rehearing, which was also denied.

¶ 5. Lambert moved for partial summary judgment on the issue of Ellis’s liability, which the circuit court granted. The circuit court also entered an agreed order, assessing $75,000 in damages against Ellis. After a bench trial on the remaining issue of whether Safeco owed liability coverage to Ellis for Lambert’s $75,000 award of damages, the circuit court entered its judgment in favor of Safeco, finding that Ellis was not entitled to liability coverage under Safeco’s homeowner’s insurance policy. Lambert filed her appeal on January 28, 2011.

STANDARD OF REVIEW

¶ 6. Although Safeco states in its brief that the circuit court’s final judgment grants summary judgment, we find that the final judgment serves instead as a declaratory judgment, which dismissed the action after the circuit judge determined that Ellis was not entitled to liability eov-erage under Safeco’s homeowner’s insurance policy. We, however, note there is no indication in the circuit judge’s order of whether he granted summary judgment or a declaratory judgment. See Richardson v. Sara Lee Corp., 847 So.2d 821, 823 (¶ 5) (Miss.2003) (supreme court considered a similar situation where it was unclear what type of judgment the trial court entered). Nonetheless, on appeal we review both summary judgment and a declaratory judgment under a de novo standard of review. Albert v. Scott’s Truck Plaza, Inc., 978 So.2d 1264, 1266 (¶5) (Miss.2008); S. Carolina Ins. Co. v. Keymon, 974 So.2d 226, 229 (¶ 9) (Miss.2008). We further recognize that “[a] circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor,” and his findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence. Maldonado v. Kelly, 768 So.2d 906, 908 (¶ 4) (Miss.2000) (citations omitted).

DISCUSSION

¶ 7. On appeal, Lambert argues that the circuit judge erred by finding that Ellis is not entitled to liability coverage under his homeowner’s insurance policy, issued by Safeco, for the $75,000 judgment entered against him as a result of Brian’s death. Specifically, she claims that the circuit judge erroneously determined that the policy provides no coverage because: (1) Ellis committed an illegal act; (2) Ellis intended to discharge the firearm in the direction of the vehicle, actions that were not accidental and not an “occurrence” as required under the policy; and (3) Ellis’s actions were intentional, thus barring coverage under the policy’s intentional acts exclusion.

¶ 8. We recognize that the interpretation of the language of an insurance policy is a question of law. Johnson v. Preferred Risk Auto. Ins. Co., 659 So.2d 866, 871 (Miss.1995). Under Mississippi law, when the words of an insurance policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written. Paul Revere Life Ins. Co. v. Prince, 375 So.2d 417, 418 (Miss.1979). The Mississippi Supreme Court has stated that ambiguous and unclear policy language must be resolved in favor of the insured. Harrison v. Allstate Ins. Co., 662 So.2d 1092, 1094 (Miss.1995). Additionally, provisions that limit or exclude coverage are to be construed liberally in favor of the insured and strongly against the insurer. Nationwide Mut. Ins. Co. v. Garriga, 636 So.2d 658, 662 (Miss.1994).

¶ 9. In his final judgment on the issue of coverage, the circuit judge determined:

The uncontradicted evidence shows that ... Ellis knowingly and willfully discharged his weapon at the vehicle in which Brian ... was riding, evincing a depraved heart regardless of human life, and the evidence is uncontradicted and undisputed that ... Ellis in fact pled guilty to the crime of manslaughter by culpable negligence. It cannot be disputed by the parties that ... Ellis did in fact and in law commit a crime and thus an illegal act. Accordingly, the court finds that the death of Brian ... was caused by an illegal act committed by ... Ellis, and therefore, pursuant to the Illegal Acts Exclusion in the subject Safeco policy, Safeco does not owe liability insurance coverage to ... Ellis for the claims being made against him as a result of the death of Brian....
Although there is no proof that ... Ellis intended to harm or kill Brian ... personally, the undisputed evidence shows that ... Ellis did intend the act of shooting a firearm towards and at the vehicle in which Brian ... was riding. Because ... Ellis intended the act of shooting his gun and shooting it at the Kees’ vehicle, ... Ellis’[s] actions were not an accident and thus not an “occurrence” as required under the subject Safeco policy. As ... Ellis’[s] actions were not an “occurrence” and the death of Brian ... was not the result of an “occurrence,” Safeco does not owe liability coverage to ... Ellis under the terms and conditions of the insurance policy. This is in accordance with the [Mississippi] Supreme Court’s rulings in Allstate Insurance Company v. Moulton, 464 So.2d 507 (Miss.1985); and [United States Fidelity & Guaranty Company ] v. OmniBank, 812 So.2d 196 (Miss.2002). See also Rogers v. Allstate [Ins. Co.], 938 So.2d 871 (Miss.Ct.App. 2006).
For the same reasons set forth above, because the evidence shows that ... Ellis intentionally discharged his firearm at or towards the vehicle in which Brian ... was riding, the court finds that ... Ellis’[s] acts were intentional. Therefore, the court finds that the Intentional Acts Exclusion in the subject Safeco policy is applicable and that Safeco does not owe liability coverage under the subject policy to ... Ellis for the death of Brian.

¶ 10. Safeco asserts that the circuit judge properly concluded that the “illegal acts” exclusion in Ellis’s homeowner’s policy excludes coverage. The homeowner’s policy at issue, under the heading “Section II — Liability Coverage” states, in pertinent part:

1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily injury or property damage:
a. which is expected or intended by any insured or which is the foreseeable result of an act or omission intended by any insured....
2. Coverage E — Personal Liability does not apply to:
a. Liability:
(4.) arising out of any illegal act committed by or at the direction of any insured.

¶ 11. Safeco asserts that the damages claimed by Lambert arose out of an illegal act committed by Ellis — discharging his firearm within the city limits, resulting in Brian’s death — thus excluding coverage under the policy. Safeco submits that there can be no dispute that Ellis committed an illegal act, citing to Ellis’s indictment for murder and Ellis’s subsequent guilty plea to manslaughter by culpable negligence.

¶ 12. Lambert, however, argues that although Ellis intended to discharge his firearm, the uncontradicted evidence establishes that he did not intend the consequences of his act — Brian’s death. Lambert cites to Southern Farm Bureau Casualty Insurance Co. v. Allard, 611 So.2d 966, 968 (Miss.1992), asserting that “an act is intentional if the actor desires to cause the consequences of his act, or believes that the consequences are substantially certain to result from it.” Lambert submits that an illegal act requires criminal intent, and she argues that the circuit judge found that no proof existed that Ellis intended to harm or kill Brian. Lambert also points out that Ellis pled guilty to manslaughter by culpable negligence, which she claims is not a specific-intent crime. Lambert thus claims that the record shows that Ellis lacked the requisite intent to commit an illegal act; therefore, the illegal-acts exclusion in the policy does not apply.

¶ 13. Safeco argues that the policy does not specify that coverage is excluded only if damages result from an intentional illegal act. Safeco submits that Ellis’s guilty plea and conviction conclusively establish that Ellis committed a crime, preventing it from having to prove that Ellis committed an illegal act. Safeco also argues that willful acts can cause a negligent, unintentional killing sufficient to support a conviction for culpable-negligence manslaughter under Mississippi Code Annotated section 97-3-47 (Rev. 2006). Safeco further states that Ellis’s intentional act of shooting at the Kees’ vehicle was illegal and thus sufficient to trigger the “illegal acts” exclusion from coverage regardless of whether there was also a criminal conviction.

¶ 14. Safeco also cites Section II of the policy, which states that “Medical Payments to Others do not apply to bodily injury or property damage which is expected or intended by any insured or which is the foreseeable result of an act or omission intended by any insured[.]” In United States Fidelity & Guaranty Co. v. Omnibank, 812 So.2d 196, 201 (¶ 20) (Miss. 2002), the supreme court held that “a claim resulting from intentional conduct which causes foreseeable harm is not covered [by an insurance policy], even where the actual injury or damages are greater than expected or intended.” Additionally, in Farmland Mutual Insurance Co. v. Scruggs, 886 So.2d 714, 720 (¶ 22) (Miss.2004), the supreme court reiterated that although the policy holder “may not like the consequences of their intentional actions,” the “Bodily Injury and Property Damage” section of the policy at issue in that case did not cover intentional acts by the policy holder. Here, the record shows that Ellis provided testimony that although he did not intend to kill Brian, he intended to shoot at the Kees’ vehicle.

¶ 15. In Lewis v. Allstate Insurance Co., 730 So.2d 65, 69 (¶ 15) (Miss.1998), our supreme court looked to other jurisdictions to resolve whether an exclusionary insurance policy provision applied to bar coverage where the insured intended to cause property damage only, but his conduct ultimately resulted in bodily injury. The supreme court determined that under the intentional-acts policy at issue, the policy holder’s intent to cause property damage was sufficient to trigger the exclusion, despite his lack of intent to cause bodily injury. Id. at 70 (¶ 22). We note that the language of the policy exclusion in Lewis differs from the language of the policy in the case before us. The Lewis policy exclusion stated:

We do not cover bodily injury or property damage resulting from:
(a) An act or omission intended or expected to cause bodily injury or property damages. This exclusion applies even if the bodily injury or property damage is of a different kind or degree, or is sustained by a different person or property, than that intended or expected!.]

Id. at 68 (¶ 10). However, we are guided by the supreme court’s analysis in Lewis. In Lewis, the supreme court held:

[T]he policy, as written, only requires that the insured intended or expected property damage which resulted in property damage or bodily injury for the exclusionary clause to apply. Normally, Allstate would have to show that Thompson [the insured] intended the property damage, or expected that property damage was substantially certain as a result of his actions. However, Thompson’s admission ... that he intended to, or at least expected that the actions by Green and Wilson would, cause property damage, satisfies Allstate’s burden and is sufficient to invoke the exclusion. Because of the language of the policy, Thompson’s intent regarding bodily injury is irrelevant.

Id. at 72 (¶ 30).

¶ 16. Here, Ellis admitted that he indeed intended to discharge his firearm at the Kees’ vehicle, resulting in Brian’s death (although Ellis claims he only fired at the vehicle with the intention of disabling the car). Accordingly, we affirm the circuit judge’s finding that Brian’s death was caused by an illegal act committed by Ellis, and, under the illegal-acts exclusion in the Safeco policy, Safeco does not owe liability insurance coverage to Ellis. See Lewis, 730 So.2d at 70 (¶ 22). We further find that the record supports that because Ellis intended to discharge the firearm, his actions were not an “accident” or “occurrence” as required by the policy. We therefore find no reversible error in the circuit judge’s dismissal of the suit, finding that under the exclusions in the policy, Safeco owed no liability coverage to Ellis for any claims against Ellis as a result of Brian’s death. See id.

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

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

      . The record reflects that Safeco initially filed a motion to intervene and for a stay pending the United States District Court for the Southern District of Mississippi’s disposition of a pending declaratory-relief action. Lambert filed an affidavit stipulating that the amount in controversy was less than $75,000. In response, district court dismissed the declaratory-relief matter for lack of diversity jurisdiction. Safeco then moved to withdraw its previous motion to stay.


author: ROBERTS, J.,

text:
    Lebrian Dontae BOLTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00113-COA.
    Court of Appeals of Mississippi.
    May 8, 2012.
    Edmund J. Phillips Jr., Newton, Richard A. Rehfeldt, Jackson, and P. Shawn Harris, Forest, attorneys for appellant.
    Office of the Attorney General by John R. Henry Jr., and Scott Stuart, attorneys for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1; On June 28, 2010, a Leake County grand jury indicted Lebrian Dontae Bolton for the murder of Wayne Lewis. Bolton’s trial took place in the Leake County Circuit Court beginning on January 11, 2011, and resulted in Bolton’s conviction for the murder of Wayne Lewis. The Leake County Circuit Court sentenced Bolton to life imprisonment in the custody of the Mississippi Department of Corrections. Bolton filed a motion for a new trial, which the circuit judge denied. Bolton timely filed his notice of appeal on January 24, 2011.

FACTS AND PROCEDURAL HISTORY

¶ 2. The testimonies of the various witnesses in this case conflict on significant issues. To aid in the analysis and understanding of this case, we will attempt to recite the facts gleaned from the record while pointing out those relevant conflicts.

¶ 3. Early in the day of December 22, 2009, Lewis was allegedly involved in an assault of Cortez Weathers. Later that same afternoon, Bolton, Marchol Hudson (Weathers’s cousin), and Reynaldo Ealy met and discussed the altercation involving Lewis and Weathers. The three men later approached Lewis at his home in Tuscola, Mississippi, to inquire about the reasons for his assault of Weathers. A verbal argument between the men ensued, and Bobbie Ealy, Lewis’s mother, told the trio to leave or she would call the police. The three men begrudgingly complied and went to Miss Osie Ealy’s house (Miss Osie’s) a short distance away. A short time later that same night, Lewis, Tommy Luckett, and Devontae Whittington were visiting at Lewis’s home. Luckett and Lewis sent Whittington to Miss Osie’s house nearby to purchase cigarettes. Whittington returned empty-handed. Whittington informed them that Bolton and Reynaldo were at Miss Osie’s house, took the cigarettes from him, and said Luckett could get the cigarettes from them if he wanted. Luckett went to retrieve the cigarettes, and Lewis followed behind him at a distance. Luckett testified that when he and Lewis arrived at Miss Osie’s, Bolton said he hoped Luckett had not come for what Luckett came for; Luckett said he had come to get cigarettes. Luckett testified that at that time Lewis went inside and bought more cigarettes. As they were leaving, Lewis told Bolton, “You and me slick.” However, Hudson, Reynaldo, and Bolton testified that Lewis had threatened to “get them all” as he walked away with the cigarettes.

¶ 4. According to Bolton’s and Reynaldo’s testimonies, Lewis and Bolton started walking down the three-hundred-feet-long path connecting Miss Osie’s house to Lewis’s house with Bolton making the effort to resolve the argument. Hudson testified that Bolton and Lewis were arguing as they were walking. Luckett and Reynaldo followed behind them at a distance. Bolton and Lewis had begun arguing at the beginning of the path; however, a physical fight began as the men had walked farther down the path. There was disputed testimony that the fight began when Bolton struck Lewis with his Glock .40-caliber weapon causing the weapon to leave Bolton’s hand and land in the path. However, Bolton testified that he was never in possession of a gun but that Lewis took the gun from Hudson’s truck at Miss Osie’s house. Luckett and Reynaldo began fighting shortly thereafter when Reynaldo grabbed Luckett and pulled him back from where Bolton and Lewis were fighting. The fighting continued down the path toward Lewis’s home. Bolton testified, “We [he and Lewis] probably fought for probably [sic] five minutest,] and then we stopped because Reynaldo and ... Luck-ett was [sic] fighting. We stopped and we all just sat back, and they was [sic] fighting in the trail.” Bobbie, Lewis’s mother, testified she heard a loud commotion outside and decided to get in her car and have her son Lewis drive her somewhere. She then drove the short distance to the path to where the men were. According to Luckett, Bobbie told the men to stop fighting and also asked Lewis to come drive her to her daughter’s house. Both Luck-ett and Bobbie testified that Lewis had walked to the car when Bolton made a comment to Lewis. Then both Bolton and Reynaldo began walking toward the car. According to Bobbie, the fighting resumed between Luckett and Reynaldo, and Lewis went back toward the fight to stop it. Reynaldo testified that Lewis started walking toward Bobbie’s car but turned around and started the fight again. Hudson, who had been following the other men down the path at a distance, arrived on the scene of the fight and fired a shot with his Smith and Wesson .40-caliber gun. It was uncertain as to whether Hudson fired the shot in the air or into the ground. The shot temporarily stopped the fighting. According to Bobbie and Luckett, Bolton, who was standing near Hudson, took the gun from Hudson, said “I’ll get that n* * * and fired two shots into Lewis’s chest. Bolton, Hudson, and Reynaldo all testified that after Hudson shot to stop the fight, Lewis advanced toward Bolton and hit him in the eye. Bolton further testified that he stumbled into Hudson, grabbed Hudson’s gun from Hudson’s back pocket, and shot Lewis twice as Lewis was continuing to advance on him. Bolton also claimed that he thought Lewis had a gun in his hand at the time Lewis was advancing on him. No other witness confirmed that Lewis had a gun or any other weapon on him at the time of the fight. Bolton, Hudson, and Reynaldo dispute Bobbie’s and Luckett’s testimony that Bolton said “I’ll get that n* * * * ” before he shot Lewis. Bolton maintained that he had shot Lewis in self-defense because he believed that Lewis had taken Bolton’s Glock .40 caliber pistol from where he left it in Hudson’s truck at Miss Osie’s and that Lewis was now using it to attack him.

¶ 5. After the two shots were fired, Bolton and Hudson fled the scene. Reynaldo testified that he stayed and held Lewis’s hand; however, Bobbie and Luckett testified that Reynaldo left the scene as well after the shots were fired. Bolton admitted that he threw Hudson’s Smith and Wesson .40-caliber gun out of the truck window as he fled from the scene. The following day, Bolton voluntarily surrendered himself to police. A photograph taken of Bolton at the time he surrendered to the police indicated a large, swollen bruise under his left eye. He attributed this injury to Lewis having hit him in the face with his gun.

¶ 6. Bolton was indicted by a Leake County grand jury for the'murder of Lewis pursuant to Mississippi Code Annotated section 97 — 3—19(l)(a) (Rev.2006). The State offered testimony from Luckett, Hudson, Reynaldo, and Bobbie. The State also offered the testimony of two members of the Leake County Sheriffs Office. Deputy Toby Gill testified he was involved in the recovery of evidence the night of December 22, 2009, and he recovered a .40-caliber Glock approximately five to ten feet from Lewis. This gun appeared to belong to Bolton. Deputy Gill also found a spent shell casing approximately five to ten feet away from Lewis, a live round approximately twenty-five to thirty feet away from Lewis, and a knife approximately one to two feet away from Lewis. Investigator Michael Harper testified that the recovered Glock was not the weapon that had fired the recovered spent shell casing and that the Glock weapon had no latent prints on it. Hudson’s .40-caliber Smith and Wesson gun believed to be the weapon that fired the spent shell casing was never recovered. Investigator Harper testified that the autopsy showed Lewis had died of two gunshot wounds, but no projectiles were found in his body.

¶ 7. The defense presented testimony from Reynaldo, and Bolton testified on his own behalf. Bolton’s primary defense was that of self-defense, and he claimed that Lewis was the aggressor. After hearing all the conflicting testimony, the jury convicted Bolton of murder, and the circuit court sentenced him to life imprisonment.

¶ 8. Bolton raises the following three issues on appeal:

I. The [circuit] court erred by its failure to grant Bolton’s motion for a directed verdict at the close of the State’s case and [its subsequent] denial of Bolton’s motion for a new trial.
II. The evidence presented at trial is insufficient to support a murder conviction beyond a reasonable doubt[,] and at most, Bolton is only guilty of manslaughter.
III. The ... jury was improperly instructed on the law of self-defense as mandated by case law of [Mississippi].

ANALYSIS

¶ 9. Although Bolton raises three issues on appeal, we find his second issue to be dispositive; therefore, we will only address this issue. Bolton alleges that the evidence was insufficient to support a murder conviction and “at most, [he] is only guilty of manslaughter.” It appears at first glance that Bolton is challenging the sufficiency of the evidence for a murder conviction; however, a more thorough reading of his brief shows that his argument is focused on the lack of a manslaughter jury instruction given at trial.

¶ 10. “It is well settled that jury instructions generally are within the discretion of the trial court,” and the appropriate standard of review is abuse of discretion. Newell v. State, 49 So.3d 66, 78 (¶ 20) (Miss.2010). Further,

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case[;] however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Moore v. State, 64 So.3d 542, 545 (¶ 10) (Miss.Ct.App.2011) (quoting Austin v. State, 784 So.2d 186, 192 (¶ 18) (Miss.2001)).

¶ 11. Bolton’s requested jury instruction D-10 contained the following language:

The Court instructs the jury that the killing of a human being without malice, by the act, procurement, or culpable negligence of another, shall be manslaughter. In [the] event that you do not find the Defendant guilty as charged but do believe from the evidence beyond a reasonable doubt, that the Defendant is guilty of manslaughter, then it is your sworn duty to find the Defendant, [Bolton], guilty of manslaughter.

The trial transcript reveals that the circuit court judge refused jury instruction D-10 stating: “It’s not a culpable negligence instruction. I’m going to refuse it.” The State asked the circuit court judge if he was not going to give Bolton’s requested jury instruction D-8 “that has the manslaughter option[.]” The circuit court judge replied, “I refused it.” The jury never received a manslaughter instruction although it did receive a self-defense instruction. Ultimately, however, the jury was only given two options: guilty of murder or not guilty.

¶ 12. An indictment for murder encompasses the lesser-included charge of manslaughter. State v. Shaw, 880 So.2d 296, 304 (¶ 26) (Miss.2004). However, when the evidence only supports a verdict of murder, the circuit court judge should refuse a manslaughter instruction. Ruffin v. State, 444 So.2d 839, 840 (Miss.1984). The Mississippi Supreme Court stated in Mease v. State, 539 So.2d 1324, 1330 (Miss.1989) (quoting Harper v. State, 478 So.2d 1017, 1021 (Miss.1985)):

a lesser included offense instruction should be granted unless the trial judge — and ultimately this Court — can say, taking the evidence in the light most favorable to the accused and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser included offense (and conversely not guilty of at least one essential element of the principal charge).

Lastly, “[a] defendant is entitled to have an instruction given to the jury presenting his theory of the case even when ‘the evidence that supports it is weak, inconsistent, or of doubtful credibility.’ ” Banyard v. State, 47 So.3d 676, 682 (¶ 17) (Miss.2010) (quoting Ellis v. State, 778 So.2d 114, 118 (¶ 15) (Miss.2000)). If the record shows any evidence that can support a lesser offense, then the circuit court should give the lesser-offense instruction. See Ormond v. State, 599 So.2d 951, 961 (Miss.1992); Mease, 539 So.2d at 1329-30. Based on the evidence presented to us, we hold the circuit court judge erred in failing to give a manslaughter instruction.

¶ 13. Manslaughter has been defined by the Mississippi Legislature as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense.... ” Miss.Code Ann. § 97-3-35 (Rev.2006). The Legislature has also provided a general manslaughter statute found in Mississippi Code Annotated section 97-3-47 (Rev. 2006), which states: “Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.” Viewing the evidence in a light most favorable to Bolton, a reasonable jury could have found him guilty of only manslaughter. Bolton’s testimony at trial was Lewis was the initial aggressor in the altercation. His testimony was supported by Reynaldo’s and Hudson’s testimonies that Lewis had struck Bolton in the eye immediately before the shooting occurred. Bolton’s mug shot was admitted into evidence at trial and showed him with a swollen, black eye consistent with his theory that Lewis had struck him in the eye. Bolton also testified that he was attempting to resolve the dispute with Lewis. The jury was given the option of finding Bolton guilty of murder or not guilty for acting in self-defense; however, they were not given the option to find Bolton guilty of manslaughter under Mississippi Code Annotated sections 97-3-35 or 97-3-47.

¶ 14. As Bolton points out in his brief, Mississippi recognizes the imperfect self-defense theory, providing “that the defendant killed the deceased without malice, under the bona fide belief, but without reasonable cause therefor, that it was necessary for him to do so in order to prevent the appellant [sic] from inflicting death or great bodily harm upon him.” Wade v. State, 724 So.2d 1007, 1011 (¶ 12) (Miss.Ct. App.1998) (quoting Lanier v. State, 684 So.2d 93, 97 (Miss.1996)) (emphasis added). A reasonable jury could have found that although Bolton’s belief of impending great bodily harm or death was not reasonable, there existed a bona fide belief that his life was in danger because Lewis was attacking him with a gun, and Bolton, therefore, could be guilty only of manslaughter. Further, a reasonable jury may well have concluded Bolton fatally shot Lewis twice, without malice aforethought or deliberate design, and without authority of law contrary to Mississippi Code Annotated section 97-3-47. However, if the jury believed Bobbie’s and Luckett’s testimonies about Bolton’s statement made immediately before shooting Lewis, a murder verdict would have been appropriate.

¶ 15. As we thoroughly outlined in the facts section of this opinion, there is much conflicting testimony about what occurred between Lewis and Bolton the night of the incident. However, keeping in mind the correct standard of review when determining an accused’s entitlement to a lesser-included offense instruction, we find there was sufficient evidence in the record to support a manslaughter instruction and that the circuit court judge committed reversible error in refusing Bolton a manslaughter instruction. Therefore, we reverse and remand this case to the circuit court for a new trial before a properly instructed jury.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

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

      . The three men had stopped by Lewis’s home earlier that day and talked with Lewis's stepfather about the altercation because Lewis was not home. Lewis's stepfather indicated he would discuss the altercation with Lewis.


author: RUSSELL, J.,

text:
    Larry TAYLOR, Appellant v. Alford BELL and Sheila Bell, Appellees.
    No. 2010-CA-01912-COA.
    Court of Appeals of Mississippi.
    May 8, 2012.

      Tina Marie Dugard Scott, attorney for appellant.
    Randolph Walker, attorney for appel-lees.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. On October 19, 2010, the Chickasaw Chancery Court entered a judgement in favor of Alford Bell and Sheila Bell, establishing a boundary line between the property owned by the Bells and that owned by Larry Taylor at the point that is halfway between the center line of the ditch and then running east to the fence post that is set on the north end of the disputed property and then let the line run due south from said fence post with the Bells owning all land east of said line and Taylor owning all land west of said line. On November 17, 2010, Taylor appealed the chancellor’s determination that the Bells had adversely possessed the subject property. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On July 2,1973, the Bells obtained a warranty deed for real estate located at 237 Pittsboro Street, Chickasaw County, Mississippi. In 1984, Springer and Associates surveyed the property for the Bells because the Bells were considering having a fence built around their home on the property. The survey revealed that the Bells’ home encroached upon the adjoining lot then owned by L.O. Freeman and Paul Freeman.

¶ 3. In August 2004, Terry Taylor (Terry) obtained a warranty deed to the property from Mrs. L.O. Freeman. According to Terry, Freeman told him that the Bells were “over on it,” referring to the property he had purchased. On October 16, 2008, Terry deeded the property to his brother, Taylor. Terry testified that he lives directly across the street from the Bells and has power of attorney to act for his brother regarding the subject property. Taylor lives in California and uses the house that sits on the subject property as rental property.

¶ 4. On December 4, 2009, the Bells filed a complaint to confirm title and remove cloud. In April 2010, Terry constructed a fence to deny the Bells access to the subject property. On April 14, 2010, Taylor filed an answer and counter-complaint contending that the Bells were not entitled to adverse possession and that he held title to and has paid taxes on the property.

¶ 5. On April 16, 2010, the Bells filed an answer to the counter-complaint. On September 9, 2010, a bench trial was held. On October 19, 2010, the Chickasaw County Chancery Court found for the Bells and entered a judgment establishing a boundary line on the property between the property owned by the Bells and that owned by Taylor. On November 17, 2010, Taylor filed his notice of appeal.

DISCUSSION

¶ 6. This Court follows a limited standard of review when addressing appeals from a chancery court. Buford v. Logue, 832 So.2d 594, 600 (¶ 14) (Miss.Ct. App.2002) (citing Reddell v. Reddell, 696 So.2d 287, 288 (¶ 1) (Miss.1997)). We will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Id. Great deference is given to the chancellor as both finder of fact and trier of law. Id. “If there are no specific findings of fact, the appellate court will assume that the trial court has made determinations of fact sufficient to support its judgment.” Id. (citing Pace v. Owens, 511 So.2d 489, 492 (¶ 3) (Miss.1987)). “The appellate court will also look to the evidence and determine whether or not the statement of facts justify the decree.” Id. (citing Greenlee v. Mitchell, 607 So.2d 97, 105 (¶ 1) (Miss. 1992)).

¶ 7. Adverse possession is defined in Mississippi Code Annotated section 15 — 1— 13(1) (Rev. 2003) as follows:

Ten (10) years actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under disability of minority or unsoundness of mind the right to sue within ten (10) years after the removal of such disability, as provided in [Mississippi Code Annotated] [s]ection 15-1-7. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than thirty-one (31) years.

¶ 8. Our supreme court has established six elements that must be met for a claim of adverse possession: “the property must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Cook v. Robinson, 924 So.2d 592, 595 (¶11) (Miss.2006). “The burden of proof is on the adverse possessor to show by clear and convincing evidence that each element is met.” Ellison v. Meek, 820 So.2d 730, 734 (¶4) (Miss.2002).

¶ 9. The Bells submit that they possessed the land under an adverse claim of ownership because they have maintained the subject property since April 1974 when they moved in, and they have continued to maintain the property until Terry erected the fence in 2010. Alford Bell specifically testified that he planted shrubbery, mowed the grass, and landscaped the property. He further testified that he had asked Freeman in November 1984 about purchasing the property after a survey revealed that his property encroached on the land then owned by Freeman. However, Freeman was not interested in selling. Instead, she preferred to “leave it like it is.” According to Alford, this meant that they should continue to maintain the property, which they did until the fence was erected in 2010.

¶ 10. The Bells introduced photographs revealing that the subject property is a strip of land that consists of a part of the Bells’s home, shrubbery, a yard, and a ditch. Sheila Bell testified that she never asked Freeman for permission to use the property nor did she hear Alford talk to Freeman about using the property. Sheila further testified that she only wanted the fence removed from her property.

¶ 11. Terry testified he had a survey performed in 2009 to determine exactly where the property line was located after learning that his neighbor was having a survey performed on his property. It was around this time that Alford made Terry an offer to buy the subject property. Shortly after declining Alford’s offer, Terry explained, he erected the fence so that the Bells could no longer cut the property.

¶ 12. “In most cases, the underlying question is whether the possessory acts relied upon by the would-be adverse possessor are sufficient to put the record title holder upon notice that the lands are held under an adverse claim of ownership.” Id. at 734 (¶ 14). “[M]ere possession is not sufficient to satisfy the requirements of open and notorious possession.” Id. at 734-35 (¶ 14). “The adverse possessor must ‘fly the flag over the land and put the true owner upon notice that his land [is] held under an adverse claim of ownership.’ ” Id. at 735 (¶ 14).

¶ 13. While Taylor contends that he holds title to and pays taxes on the subject property, the question becomes whether or not he was put on notice that the land was held under an adverse claim of ownership. Terry testified that Freeman told him at the time he purchased the property in 2004 that the Bells were “over on it.” Thus, Taylor was on notice that his land was held under an adverse claim of ownership.

¶ 14. This Court has long held that “[o]nce adverse possession has begun, the record title owner cannot stop the running of the period merely by granting permission.” Gillespie v. Kelly, 809 So.2d 702, 710 (¶ 28) (Miss.2001). It is undisputed that the Bells began them adverse possession of the subject property in April 1974 without permission from the then-title owners, the Freemans. The November 1984 conversation with Freeman about purchasing the property was more than ten years from the beginning of the possession and title had already been vested in the Bells. Once adverse possession created an easement, “it cannot be lost by the record title owner granting permission.” Id. It is well-settled Mississippi law that once the elements of adverse possession have been satisfied, a full and complete title is vested in the adverse possessor. Levy v. Campbell, 200 Miss. 721, 728, 28 So.2d 224, 226 (1946). Further, this Court has held that once title has been acquired by adverse possession, “it is not relinquished merely by the new owners indicating a belief in the former owner’s title.” Gillespie, 809 So.2d at 711 (¶ 32). Title can be lost only by proper transfer, such as deed, will, or intestacy, or by another period of possession ripening title in a new adverse user. Id. Any offer by Alford to pay for the property following the survey in 1984 or 2009 is of no consequence since the Mississippi Supreme Court has held that an offer to pay for land after an adverse possession title has ripened is not a disclaimer of title. Rotenberry v. Arnold, 212 Miss. 564, 566, 55 So.2d 141, 142 (1951).

¶ 15. After hearing the testimony and examining the exhibits, the court urged the parties to try to resolve the matter themselves by either dividing the property or buying the other person’s interest. The parties could not reach an agreement. Thus, the chancellor found that the Bells did in fact adversely possess the property and divided the property accordingly.

¶ 16. There is substantial evidence in the record to support the chancellor’s findings. As such, we cannot conclude that the chancellor was clearly erroneous or that he applied an improper legal standard. Accordingly, we find no error in the chancellor’s decision and affirm the chancellor’s judgment.

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

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

      . L.O. received title to the property when Paul died some time prior to the transfer of property to Terry in 2004.