author: RANDOLPH, Justice,

text:
    GRAND LEGACY, LLP and Grand Legacy of Mississippi, LP v. Charles M. GANT, Individually; Stephen L. Shivers, Sr., Individually; and Gant & Shivers, LLC.
    No. 2010-CA-00446-SCT.
    Supreme Court of Mississippi.
    July 28, 2011.

      David C. Dunbar, Grover Clark Monroe, II, Ridgeland, attorneys for appellants.
    John Michael Herke, Jackson, Donald C. Doman, Jr., Tim C. Holleman, Gulfport, attorneys for appellees.
   RANDOLPH, Justice,

for the Court:

¶ 1. This case involves the duties owed among members of partnerships and claims of fraud. Charles M. Gant possessed a letter of intent to purchase property. He offered to sell the property to Grand Legacy, LLP (“Grand-LLP”), once he completed the purchase. Grand-LLP responded to the offer by agreeing to purchase the property through an unnamed partnership entity with Gant that was to be formed at a later date. Gant & Shivers, LLC (as a limited partner) and Grand Legacy, LLP (as the general partner), signed a limited-partnership agreement on March 23, 2005, forming Grand Legacy of Mississippi, LP (“Grand-Miss LP”). After the purchase, Grand-Miss LP would develop the land. Grand-LLP and Grand-Miss LP (“Grand parties”) claim that Gant stated he would not profit from the purchase and resale. The Grand parties argue that a partnership was formed on that date, and that the Gant parties (including Gant, his partner, Stephen L. Shivers, and their company, Gant & Shivers, LLC (“Gant-Shivers”)) had a duty to disclose their intent to profit on the transaction, and that, in failing to disclose the intent to profit, the Gant parties committed fraud. The Gant parties counter that the sales contracts were integrated agreements that contain no clauses prohibiting different purchase and resale prices. Further, the Gant parties argue that an acknowledgment agreement, signed at closing by Grand-LLP, revealed that the price would be different and that the difference (profit) would be disbursed to Gant-Shivers. We affirm the trial court’s grant of summary judgment in favor of the appellees.

FACTS

¶ 2. Orange Grove Utilities (“OGU”) owned approximately 104 acres of waterfront property in Gulfport. On October 25, 2004, OGU and Gant committed by letter of intent for the sale of the property by OGU to Gant for $100,000 per acre. The letter included a clause prohibiting disclosure of the purchase price. J. Scott Sanders, the managing partner of Grand-LLP, expressed an interest in the property. Sanders and Gant had been involved in another land transaction in the summer of 2004, after being introduced to each other by an attorney, Jay Jordan. Sanders had extensive real-estate experience. Grand-LLP is a Florida-based entity, claiming on its website to be one of that state’s fastest-growing acquisition companies, with projects under development in eight states and “the strength to obtain favorable financing within weeks on land parcels valued at up to $100,000,000.”

¶ 3. After the OGU-Gant letter of intent had been signed, but before a sales contract was completed, Gant took Sanders and one of Sanders’s business partners, Dr. Duane Pankratz, on a boat ride to view the property. Shivers was not present, as he was out of the country at the time. While on the boat, Sanders agreed to purchase the property, if Gant would agree to become a member of a limited partnership with Grand-LLP to own and develop the property. They agreed on a sales price of approximately $15 million, with Gant to have a thirty-percent interest in the to-be-formed limited partnership. Sanders later stated that he believed, based on his expertise in local real estate, that $15 million was a fair price for the property. Sanders and Pankratz claim that Gant told them he had the property “locked in” and that Gant had agreed to buy it for approximately $15 million, but that he could not tell them the exact price because of a confidentiality agreement. They say Gant stated that he would not profit on the sale, but that he would profit only on the “back end,” as an equity partner in the to-be-formed unnamed limited partnership. Gant denies saying he would not make a profit and claims that Sanders and Pankratz never asked how much he would be paying OGU.

¶ 4. On November 10, 2004, Gant and OGU signed a sales contract (“11-10 Agreement”) with the sale price of $100,000 per acre. The agreement included the following confidentiality clause:

PURCHASER ... AGREE[S] NOT TO DISCLOSE TO ANY PARTY, THE PURCHASE PRICE PAYABLE HEREUNDER.... NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN ... PURCHASER MAY DISCLOSE THIS CONTRACT AND THE TERMS THEROF TO ... LENDERS AND INVESTORS IN CONNECTION WITH THE ACQUISITION OF THE PROPERTY.

(Capitals in original; italics added.)

¶ 5. Two days later, Gant and Grand-LLP signed a sales contract (“11-12 agreement”). The sales price was $144,231 per acre. Gant was the seller. The purchaser was “a Limited Partnership to be formed between Grand Legacy [LLP] and Charles M. Gant.” The contract was subject to two contingencies: (1) Gant’s acquisition of the property, and (2) formation of a limited partnership “MUTUALLY ACCEPTABLE TO BOTH SELLER AND PURCHASER.” (Emphasis in original.) The 11-12 agreement included a confidentiality clause identical to the one in the 11-10 agreement.

¶ 6. Other than the differences noted (price, identity of sellers and purchasers, and contingencies), the two contracts mirrored each other. Both were drafted by Jordan. Neither contract prohibited different sales prices or the making of a profit. The contracts included the following identical merger clauses:

This agreement constitutes the entire agreement between the parties hereto and, unless specified otherwise herein, no representation, inducement, promises, or prior agreements, oral or written, between the parties, or made by any agent on behalf of the parties or otherwise, shall be of any force and effect.

¶ 7. The 11-12 agreement was amended in February 2005 after being reviewed by Grand-LLP’s attorneys in Florida. Jordan applied to the Mississippi Secretary of State for certification of limited-partnership status for the newly formed entity that would purchase the property, Grand-Miss LP. On March 22, 2005, the certifí-cate was granted. By this time, Shivers had returned to Gulfport. On March 23, 2005, Gant, Shivers, and Sanders (as managing partner of Grand-LLP) signed the limited-partnership agreement that had been drafted by Jordan. The partners were Grand-LLP as general partner and Gant-Shivers as limited partner.

¶ 8. Subsequently, the limited-partnership agreement was amended, making SOJ Properties, LLC (including Jordan and his law partners) a limited partner with a seven-percent interest. On April 1, 2005, the 11-12 agreement again was amended, making Gant-Shivers the seller, and Grand-Miss LP the purchaser. On April 12, 2005, Gant, Shivers, and Sanders signed an Acknowledgment and Waiver in which they recognized that Jordan and his firm, Schwartz, Orgler, and Jordan, PLLC (“SOJ Law”), had provided services and had attorney-client relationships with “Gant & Shivers, Sanders, and Grand Legacy.” The parties agreed that SOJ Properties’ share was fair and reasonable. They acknowledged that they had been advised by SOJ Law and its members “to seek independent counsel relative to this transaction and that the parties [had] sought such independent counsel or [had] waived the same.... ” The parties acknowledged that SOJ Law would continue to have attorney-client relationships with them (individually and collectively), and waived any conflicts inherent in having SOJ Properties own an interest while its members provided legal services for the partnership and its members. Simultaneous closings of the two sales were planned for April 15, 2005. Grand-Miss LP obtained a bank loan for approximately $9.6 million, and Grand-LLP was to provide the remainder of the funding.

¶ 9. Sanders claims that he told Jordan that he was not interested in the deal unless the new limited partnership was buying the property at the same price Gant was paying OGU. Sanders claims that Jordan told him the two contracts would mirror each other. Jordan recalls it quite differently. Jordan testified that Sanders asked about sales prices, but that he told Sanders he could not divulge the price because of the confidentiality agreement. Jordan said he told Sanders to talk to Gant.

¶ 10. On April 15, 2005, Sanders, Gant, and Shivers signed the closing documents, as well as an Acknowledgment Agreement prepared by Jordan. The agreement referred to the confidentiality clauses in the sales contracts and included two paragraphs indicating that a difference in purchase prices would be disbursed to Gant-Shivers, as follows:

WHEREAS, Grand Legacy of Mississippi, LP, by and through, Gant & Shivers, LLC, its limited partner and Grand Legacy, [LLP], its General Partner acknowledge that both the initial purchase by Gant & Shivers, LLC, from the initial Seller; and the purchase by Grand Legacy of Mississippi, LP, from Gant & Shivers, LLC, will be simultaneous closings but both purchases have confidentiality clauses in the contracts that prohibit disclosure of the terms of the purchases; and
WHEREAS, Grand Legacy of Mississippi, LP, is obtaining a [bank loan for approximately $9,600,000] to Purchase property from Gant & Shivers, LLC, with said funds also being authorized by [the bank] to be used for the initial purchase of the property by Gant & Shivers, LLC; and
WHEREAS, [Sanders] of Grand Legacy, LLP, ... has agreed to contribute ... the balance of the funds ..., with said funds also being used to fund the initial purchase ...; and
WHEREAS, Grand Legacy, LLP, ... and Gant & Shivers, LLC, ... acknowledge that on both dosing statements the funds shall be shown as a loan from Grand Legacy of Mississippi LP, but that no note and Deed of Trust are being executed as the closings are simultaneous and the difference in the initial Purchase Price paid by Gant & Shivers, LLC, and the purchase pnce paid for by Grand Legacy of Mississippi, LP, shall be disbursed to Gant & Shivers, LLC.
NOW THEREFORE, ... the parties acknowledge and agree as follows:
[A bank will loan Grand Legacy approximately $9,600,000], with the balance of the funds being funded by Grand Legacy, LLP ... and that said loan and funds shall be used to fund both closings with the difference in the purchase price in the purchase price [sic] being paid to Gant & Shivers, LLC,....

(Emphasis added.) Sanders testified by deposition that the acknowledgment agreement was a separate document that “was handed to [him] in a stack of other documents .... ” and that he signed it without reading it. He claims the document was added at the last minute without explanation. He acknowledged that he would have been given time to read it and that, if he had, he would have been informed of the purchase-price differences.

¶ 11. A settlement statement (“HUD-1”) was prepared for each transaction. The gross amounts due in the first and second sales were $10,110,000 and $14,580,000, respectively. Gant-Shivers received a check for approximately $4,470,000 from SOJ Law’s trust account. Gant-Shivers then disbursed $2,100,000 each to Gant and Shivers, individually. The Grand parties claim that they first learned in October 2007, nearly two-and-a-half years later, that the Gant parties had profited from the transactions.

PROCEDURAL HISTORY

¶ 12. In April 2008, the Grand parties filed a complaint against Gant, Shivers, Gant-Shivers, and the three attorneys. Seeking disgorgement and punitive damages, they alleged fraud, fraud in the inducement, breach of fiduciary duties, negligent misrepresentation, gross negligence, and violation of the implied covenant of good faith and fair dealing. The attorney defendants settled and were dismissed.

¶ 13. In November 2009, the Gant parties moved for summary judgment. Shivers filed a separate summary judgment motion in his individual capacity. The trial court heard argument in January 2010, and both motions were granted in February 2010.

¶ 14. In granting the first motion, the trial court noted that the 11-12 Agreement contained no clause prohibiting Gant, individually, or Gant-Shivers, from making a profit on the transaction, and that the merger clause specifically prohibited reliance on any oral representations not included in the contract. Further, the trial court noted that the acknowledgment agreement, signed by Sanders, stated that the difference between the purchase prices would be “disbursed to Gant & Shivers, LLC.” The trial court relied upon Davis v. Paepke, 3 So.3d 131 (Miss.Ct.App.2009), and found that, “[i]f Sanders had read the acknowledgment agreement, he would have seen the phrase instructing that” the price difference would be disbursed to Gant-Shivers. See id. at 139. Finally, the trial court took into account Sanders’s extensive real-estate experience, finding that “if Sanders was relying on Gant’s oral representation in his decision to enter into a $15 Million contract, it seems as though Sanders would have made sure that the contract contained a provision referencing such.” Although the trial court included in its findings that the plaintiffs claimed the existence of a fiduciary relationship, the effect of such a relationship was not analyzed.

¶ 15. In granting Shivers’s separate motion, the trial court found that the evidence was undisputed that he never made any representations about the property and was not present at the time the plaintiffs allege that Gant made false representations. Further, the trial court found that Shivers had not acted individually, but only as a member of Gant-Shivers. Thus, Shivers could not be held individually liable. See ■ Miss.Code Ann. § 79-29-305 (Rev.2009). The Grand parties appeal the grant of both motions.

ISSUES

¶ 16. The issues are:

I. Whether the trial court erred in finding no genuine issue of material fact regarding the fiduciary duties owed to a partner.
II. Whether the trial court erred, as questions of fraud are inappropriate for disposition at the summary judgment stage.
III. Whether the trial court erred in granting Shivers’s separate motion, as he can be held individually liable.

ANALYSIS

¶ 17. A trial court’s grant or denial of summary judgment is:

reviewed by this Court de novo. See Wilner v. White, 929 So.2d 315, 318 (Miss.2006). Mississippi Rule of Civil Procedure 56(c) prorides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c).... In this Court’s de novo review, “[t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993).

Kilhullen v. Kansas City S. Ry., 8 So.3d 168, 174-75 (Miss.2009) (emphasis in original).

I. Whether the trial court erred in finding no genuine issue of material fact regarding the fiduciary duties owed to a partner.

¶ 18. The Grand parties argue that a general partnership existed from the time of the meeting on the boat when the parties agreed upon their intent to form a partnership. Preliminarily, they argue that Gant violated the duties of a general partner by claiming falsely at that time that he had agreed to purchase the property for approximately the same price that he would sell it. The complaint by the Grand parties alleged not only that Gant had actively engaged in a misrepresentation from the beginning, but alleged also that the Gant parties had a duty to inform their partners of their plans to profit at the partnership’s expense and had violated that duty by their silence.

¶ 19. They argue further that the 11-12 agreement, with its agreement to form a limited partnership, provides additional proof of the existence of a general partnership, as it evidences intent, the most important factor in determining the existence of a partnership by operation of law. See Allied Steel Corp. v. Cooper, 607 So.2d 113, 117 (Miss.1992). However, the other two factors (control and profit-sharing) did not exist at that time. See Smith v. Redd, 593 So.2d 989, 993-94 (Miss.1991). Further, as this alleged conversation involved an agreement to transfer real property, the statute of frauds would require a writing. See Miss.Code Ann. § 15 — 3—1(c) (Rev. 2003). At least one court has found that, even for the formation of a partnership, which may otherwise form by the operation of law, the statute of frauds requires a writing for a partnership involving the transfer of land. See E. Piedmont 120 Assocs., L.P. v. Sheppard, 209 Ga.App. 664, 434 S.E.2d 101, 102 (1993).

¶ 20. The 11-12 agreement, which reduced to writing an intent to form a limited partnership in the future, did not create a general partnership. The parties were not yet carrying on the operation of a business as co-owners. It was not until the requirements of the Mississippi Limited Partnership Act were satisfied, including the filing of a limited-partnership certificate in the office of the Secretary of State, and the parties’ expected limited-partnership agreement, that a limited partnership was formed. See Miss.Code Ann. §§ 79-14-101 to 79-14-1107 (Rev.2009).

¶ 21. The limited partnership came into existence in March 2005 as certified by the Secretary of State. Partners in a limited partnership are governed by the statutes of the Mississippi Uniform Partnership Act regarding areas not covered in the Mississippi Limited Partnership Act. See Miss.Code Ann. § 79-14-1107 (Rev.2009). Partners have duties of loyalty and care toward each other. See Miss.Code Ann. § 79-13-404(a) (Rev.2009). Under the law in effect at the time of these transactions, partners had an additional duty, as follows:

Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from use by him of its property.

See Miss.Code Ann. § 79-12-21 (Repealed 2007) (emphasis added). See Corley v. Ott, 326 S.C. 89, 485 S.E.2d 97, 98-99 (1997) (applying that State’s counterpart to Mississippi’s former law in a case with similar facts). The Grand parties submit that the price-difference language in the acknowledgment was insufficient fulfillment of the Gant parties’ duty to the partnership.

¶ 22. The Gant parties argue that they cannot be found to have failed to disclose their intent to profit, as Sanders signed the acknowledgment agreement that declared that there would be a difference in prices and that the difference would be paid to Gant-Shivers. Citing Davis v. Paepke and a recent decision of this Court, the Gant parties rely on a contracting party’s obligation to read a contract before signing or be found imputed with the knowledge of its contents. See Mladineo v. Schmidt, 52 So.3d 1154, 1161-62 (Miss.2010) (insureds have a duty to read insurance policies and will be imputed with the knowledge of the policies’ provisions); Davis, 3 So.3d at 138-39. This Court has stated that allowing a contracting party “ ‘to admit that he signed [a contract] but did not read it or know its stipulations would absolutely destroy the value of all contracts.’ ” Busching v. Griffin, 542 So.2d 860, 865 (Miss.1989) (quoting Alliance Trust Co. v. Armstrong, 185 Miss. 148, 163-64, 186 So. 633, 635 (1939)).

¶ 23. The trial court’s order focused on (1) the merger clause, declining to consider parol evidence of alleged misrepresentation predating the contract; and (2) the acknowledgment agreement and the imputation of knowledge of its contents, regarding disclosure to partners. The trial court found Gant-Shivers LLP fulfilled its duty of disclosure when the acknowledgment was presented for signature, revealing that monies were to be paid to Gant-Shivers for the difference in purchase prices. Our de novo review identifies no error in the judge’s ruling.

¶ 24. Whatever the parties said on the boat, the merger clause left such statements without any force and effect. This Court has stated that merger clauses are used “to signal to the courts that the parties agree that the contract is to be considered completely integrated.... [T]hus the purpose and effect of including a merger clause is to preclude the subsequent introduction of evidence of preliminary negotiations....” B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483, 490 (Miss.2005) (quoting Security Watch, Inc. v. Sentinel Sys., Inc., 176 F.3d 369, 372 (6th Cir.1999)). If Sanders wanted to hold Gant to this representation, he could have insisted on its inclusion in the 11-12 agreement, the limited-partnership agreement, or the closing documents, or he could have demanded to know the difference in purchase prices when presented with the acknowledgment. Grand failed to avail itself of any of the aforementioned.

¶ 25. We agree that when the limited partnership was formed, fiduciary duties arose. Omission or concealment of a material fact can constitute fraud. Rankin v. Brokman, 502 So.2d 644, 646 (Miss.1987). Where a fiduciary relationship exists, silence may be fraud. The “silence must relate to a material fact or matter known to the party and as to which it is his legal duty to communicate to the other contracting party.” Mabus v. St. James Episcopal Church, 884 So.2d 747, 762-63 (Miss.2004) (citing Guastella v. Wardell, 198 So.2d 227, 230 (Miss.1967)). The confidentiality agreements did not prevent Grand-LLP from inquiring of the Gant parties the purchase price, whether as partner, lender, or investor in connection with the acquisition of the property.

¶ 26. However, no admissible evidence supports that a price difference was concealed. The acknowledgment agreement unequivocally informed Grand-LLP that the sales prices were different and that the difference would be disbursed to Gant-Shivers. We can discern no error by the trial judge in imputing knowledge of the price difference to the Grand parties. It was incumbent upon Grand-LLP to read the contract before signing. Grand-LLP could have questioned the Gant parties about the amount of the difference revealed in the disclosure and also could have, as a lender and investor, insisted upon seeing the documents for the first purchase and sale as provided in the confidentiality clause. The trial court properly relied on Davis v. Paepke, a case in which a contracting party violated a contract he had signed without reading, and subsequently attempted to rely upon prior representations not included in the contract. See Davis, 3 So.3d at 133-34. The acknowledgment informed the Grand parties that the prices were different and that the difference would be disbursed to GantShivers. The Grand parties offer no admissible evidence to support concealment, as a cursory reading of the acknowledgment would have revealed just the opposite. Thus, the trial court correctly discerned that no genuine issue of material fact existed as to that issue.

II. Whether the trial court erred, as questions of fraud are inappropriate for disposition at the summary judgment stage.

¶ 27. “This Court has also alluded to the notion that cases which involve issues of contractual ambiguity and interpretation as well as allegations of fraud or misrepresentation generally are inappropriate for disposition at the summary-judgment stage.” Great S. Nat’l Bank v. McCullough Envtl. Servs., Inc., 595 So.2d 1282, 1289 (Miss.1992) (citing Pursue Energy Corp. v. Perkins, 558 So.2d 349, 354 (Miss.1990)). However, the standard of review of the grant of summary judgment regarding allegations of fraud remains the familiar genuine-issue-of-material-fact standard quoted above. See Miss. R. Civ. P. 56(c); Holland v. Peoples Bank & Trust Co., 3 So.3d 94, 98-99 (Miss.2008); Smith v. Chhabra, 54 So.3d 877, 880 (Miss.Ct.App.2011). As the 11-12 agreement was integrated and unambiguous, parol evidence of an earlier representation would be inadmissible. Thus no admissible evidence created a genuine issue of material fact.

¶ 28. We find no error in granting summary judgment under the circumstances specific to this case, as no admissible evidence supported claims of fraud in the inducement. The Grand parties attempted to introduce evidence from the boat-inspection conversation and similar conduct in an unrelated transaction. The remaining claims of fraudulent conduct were contracts and closing documents either adopted and executed, or unread and executed, by Grand. See Wedgeworth, 911 So.2d at 490; Davis, 3 So.3d at 133-34.

III. Whether the trial court erred in granting Shivers’s separate motion, as he can be held individually liable.

¶ 29. The trial court found that it was undisputed that Shivers was not present at the time of the alleged misrepresentations on the boat and that there was no evidence of him acting as an individual, but only as a member of Gant-Shivers. Thus, citing Mississippi Code Section 79-29-305 (Rev. 2009), the trial court granted the motion, as Shivers could not be held individually liable.

¶ 30. The Grand parties make three arguments: (1) As an individual member of the general partnership discussed above, Shivers had an individual duty to disclose; (2) the limited-liability-shield statute is inapplicable to an LLC member’s own acts or omissions; and (3) the corporate veil may be pierced when fraud is involved.

¶ 31. Even assuming that a general partnership arose by operation of law, Shivers was not a partner. Shivers’s involvement in this matter began when Gant>-Shivers became a limited partner in Grand-Miss LP. The Grand parties argue that Shivers’s signature on the allegedly false HUD-1 statement should subject him to individual liability. However, that statement was not signed until April 15, 2005, after the limited partnership had been formed. At that time, Shivers was a member of Gant-Shivers, a corporate limited partner in Grand-Miss LP.

¶ 32. The Grand parties argue that the trial court erred in applying the limited-liability-shield statute to these facts. See Miss.Code Ann. § 79-29-305(1), (2) (Rev.2009). It provides:

(1) A person who is a member of a limited liability company is not liable, by reason of being a member, under a judgment, decree or order of a court, or in any other manner, for a debt, obligation or liability of the limited liability company, whether arising in contract, tort or otherwise or for the acts or omissions of any other member, manager, agent or employee of the limited liability company.
(2) A member of a limited liability company is not a proper party to a proceeding by or against a limited liability company, by reason of being a member of the limited liability company, except:
(a) Where the object of the proceeding is to enforce a member’s right against or liability to the limited liability company; or
(b) In a derivative action brought pursuant to Article 11 of this chapter.

Id. The Grand parties cite decisions of other courts in the argument that individual liability is a possibility for a limited-partnership member’s own acts or omissions. The Gunnings and Causey courts applied state statutes that are different from Mississippi’s statute, in that they except a person’s “own acts or conduct.” Gunnings, 2007 WL 1931291, at *6; Causey, 2005 WL 2000625, at *5. Handy is factually dissimilar in that an LLC member was found individually liable for actions taken before formation of the LLC. See Handy, 2000 WL 364199, at *4. Here, all of Shivers’s actions occurred after the formation of Gant-Shivers. Clement supports Shivers’s position. Clement, 881 So.2d at 974-75. Applying a statute identical to Mississippi’s, the Clement court held, “The mere act of signing the contract on behalf of [an LLC] in his capacity as a member did not make [the LLC’s manager and sole member] a signatory to the contract in his individual capacity.” Id.

¶ 33. Finally, citing cases from other courts, the Grand parties argue that, when fraud or misrepresentation are involved, the veil of an LLC may be pierced. The Young court stated in dicta that, if Utah law applied, individual liability might be found. But liability was found under the federal Racketeer Influenced and Corrupt Organizations Act (RICO). Young, 92 Fed.Appx. at 392. A Texas court has held that an LLC’s veil may be pierced when it has been used “as a sham to perpetrate a fraud.” McCarthy, 251 S.W.3d at 590-91. The LLC at issue was used as a “front” and purposefully was kept undercapitalized and unable to pay its creditors. Id. at 591. Here, no such evidence was presented regarding Gant-Shiv-ers, and no evidence was presented of Shivers participating personally in any representations to the Grand parties.

¶ 34. The law of Delaware, as applied by its own courts and those of other jurisdictions, “allows a court to pierce the corporate veil of an entity when there is fraud....” However, the trial court applied a Mississippi statute. Thus, Delaware’s business-association law, however persuasive, does not lead to a finding of error.

¶ 35. We find no error in the grant of Shivers’s separate summary judgment motion.

CONCLUSION

¶ 36. The judgment of the Circuit Court of the First Judicial District of Harrison County is affirmed.

¶ 37. AFFIRMED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ, LAMAR, KITCHENS, CHANDLER AND KING, JJ., CONCUR. PIERCE, J„ NOT PARTICIPATING.

      . Gunnings v. Internet Cash Enter. of Asheville, LLC, 2007 WL 1931291, *6 (W.D.N.C. July 2, 2007); Causey v. Dipak Lachmandes, 2005 WL 2000625, *5 (M.D.Tenn. Aug. 18, 2005); Clement Contracting Group, Inc. v. Coating Sys., L.L.C., 881 So.2d 971 (Ala.2003); Pepsi-Cola Bottling Co. of Salisbury, Md. v. Handy, 2000 WL 364199, *4 (Del.Ch. Mar. 15, 2000).

      . Young v. Hamilton, 92 Fed.Appx. 389 (9th Cir.2003); Vertrue, Inc. v. Meshkin, 429 F.Supp.2d 479 (D.Conn.2006); SR Int’l Bus. Ins. Co., Ltd. v. World Trade Ctr. Props., 375 F.Supp.2d 238 (S.D.N.Y.2005); Taurus IP, LLC v. DaimlerChrysler Corp., 534 F.Supp.2d 849 (W.D.Wis.2008) (applying outdated Texas law; an expired statute and an overruled case); Westmeyer v. Flynn, 382 Ill.App.3d 952, 321 Ill.Dec. 406, 889 N.E.2d 671 (2008); McCarthy v. Wani Venture, A.S., 251 S.W.3d 573 (Tex.App.2007).

        . Westmeyer, 321 Ill.Dec. 406, 889 N.E.2d at 677 (quoting In re Kilroy, 357 B.R. 411, 425 (Bankr.S.D.Tex.2006)). See Meshkin, 429 F.Supp.2d at 504; SR Int’l Bus., 375 F.Supp.2d at 243; Geyer v. Ingersoll Publ’ns Co., 621 A.2d 784, 793 (Del.Ch.1992).


source: Caselaw Access Project

author: DICKINSON, Presiding Justice,

license: Public Domain

text:
    Charles B. GRAVES, Jr. v. STATE of Mississippi.
    No. 2009-CT-00626-SCT.
    Supreme Court of Mississippi.
    July 28, 2011.

      Steven Ellis Farese, Jr., Ashland, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. When a prosecutor was not prepared to proceed to trial and had not produced a video to defense counsel, a circuit judge held him in criminal contempt and ordered him incarcerated. Because the judge denied the prosecutor due process of law, and because the record contains insufficient evidence of criminal contempt, we reverse and render.

FACTS

¶2. Tunica County Prosecutor Charles Graves appeared in circuit court on March 12, 2009, with three DUI cases on the docket. Both Graves and defense counsel informed Circuit Court Judge Albert Smith that the first two cases were not ready to proceed because defense counsel had not been provided the video recordings of the arrests.

¶ 3. It is less than clear why the video recordings were not produced to defense counsel, but the transcript does indicate that Graves had requested the video recordings from the Tunica County Sheriffs Department several months prior to the trial, and they had not been produced. When asked why, Deputy Ricky Ray, referring to one of the videos, stated: “It could have been gotten to. All [Graves] had to do was go over to the property room and get the tape, just like I did this morning.”

¶4. Graves argued that, after he requested the tapes, the ball was in the sheriffs court, and that he could not unilaterally appear at the sheriffs office and take possession of evidence.

¶ 5. Graves told Judge Smith that he asked Deputy Ray to show the tapes to defense counsel two weeks earlier, but the deputy had said he did not have the tapes with him at that time. Both Graves and defense counsel agreed that, because the video recordings had not been produced by the sheriffs office, the cases should be dismissed.

¶6. Upon being advised that the first two cases were not ready to proceed to trial, Judge Smith responded: “You are both in contempt of court! You are not ready. Something is wrong in this thing. You better be ready on this thing. That’s two contempts you got on the record, two cases.”

¶ 7. When the third case — State v. Zylka — was called, the defense attorney was not present. Graves informed the court that he had agreed not to oppose a continuance because defense counsel had a conflict, but that defense counsel would need to move the court for the continuance.

¶ 8. Judge Smith ordered that the trial begin anyway, but changed his mind and halted the proceedings during the direct examination of the first witness because the defendant had no attorney. Although Judge Smith later entered a written order of contempt that recited that Graves had been held in contempt during the Zylka trial, the State concedes on appeal that “it does not appear ... that Graves was held in contempt a third time.”

¶ 9. Judge Smith sentenced Graves to two days in jail and fined him $100. While Graves was in jail, Judge Smith presided over a contempt hearing, following which, he modified his prior order by reducing Graves’s jail term to time served, but left the $100 fine intact.

¶ 10. Graves appealed his conviction and sentence, and the Court of Appeals reversed, finding insufficient evidence of the necessary criminal intent. While we agree with the Court of Appeals, we granted certiorari to clarify certain aspects of the law of contempt.

ANALYSIS

¶ 11. While every case turns on its particular facts, our law includes general rules that apply to contempt proceedings. We begin our analysis of this case with a brief overview of those rules to provide guidance to our judges and notice to the attorneys who practice before them.

The purpose of civil contempt is to compel compliance with the court’s orders, admonitions, and instructions, while the purpose of criminal contempt is to punish.

¶ 12. Judges use the power of civil contempt to compel compliance with their instructions, admonitions, and previous orders; and they use the power of criminal contempt to punish inappropriate behavior, such as insulting remarks to the court, or acts that demonstrate the accused “wilfully and deliberately ignored the order of the court.” A court’s inherent power and authority to punish litigants and attorneys for criminal contempt “is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed upon them by law.”

¶ 13. Although most contempt is either civil or criminal, a single act — or failure to act — could lead to both civil and criminal contempt. For instance, an attorney refusing to comply with a court’s order to produce a particular document could be held in contempt and incarcerated until the document is produced, or until it becomes clear that incarceration will not lead to compliance with the order. This would be civil contempt.

¶ 14. But there are many reasons why the attorney may have failed to produce the document. Where the reason is frivolous or disrespectful, the judge may also hold the attorney in criminal contempt and order punishment of a fine, incarceration for a specific time, or both. The judge may determine that criminal contempt is inappropriate where the attorney’s refusal to produce the document was not unreasonable or disrespectful — for instance, where the attorney had a good-faith belief that the document was privileged.

In certain narrow circumstances, judges should recuse and allow another judge to preside over the contempt proceedings.

¶ 15. First, although not raised in this case, where the provisions of Canon 3E of the Code of Judicial Conduct apply, a judge must always recuse and allow another judge to preside over contempt proceedings, civil or criminal. Also, where an accused allegedly commits an act of criminal contempt that requires the judge to rely — in whole or in part — on conduct that occurred outside the courtroom, and the judge is the complaining party (that is, no party to the litigation moved the court for an order of criminal contempt), due process requires that the accused be afforded an “opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” One accused of criminal contempt is entitled to the same protections as any criminal defendant. For example, if the punishment is a fine exceeding $500 or imprisonment for more than six months, the accused is entitled to a trial by jury.

¶ 16. Our caselaw has incorporated various labels, such as direct, indirect, and constructive contempt. These labels can sometimes lead to the false notion that a particular label requires a particular procedure. Regardless of the label, the guidelines set forth above should be applied in cases of contempt.

In the case before us today, Graves had a due-process right to notice and a hearing before a different judge.

¶ 17. This Court — in reviewing criminal — contempt cases — proceeds “ab initio and will determine on the record whether the person in contempt is guilty of contempt beyond a reasonable doubt.” The State has the burden of proving— from the appellate record — the elements of contempt beyond a reasonable doubt.

¶ 18. In this case, it is undisputed that the convictions involve criminal contempt. The State contends that Graves’s conduct amounted to direct criminal contempt, which “involves words spoken or actions committed in the presence of the court that are calculated to embarrass or prevent the orderly administration of justice.” On the other hand, Graves contends he was punished for the out-of-court conduct mentioned in Judge Smith’s contempt order, so he argues the citations were for indirect contempt.

¶ 19. In the Murphy case, Judge Smith held Graves in contempt because he “failed to adequately prepare for this case [and] wholly failed to follow this [c]ourt’s previous order in this matter.... Mr. Graves ... [is] hereby in contempt of this [c]ourt by [sic] failing to follow its previous order.” And concerning Woods, Judge Smith held that Graves “had [not] asked for a continuance as required, nor ... viewed the tape [that] the arresting officer said that either attorney could have obtained.” In summary, much of the offending conduct cited by Judge Smith occurred — or should have occurred — outside the courtroom, so we agree with Graves that this case is one of indirect criminal contempt — that is, for acts that — -in whole or in part — occurred outside the presence of the judge.

¶ 20. In presenting its case on appeal, the State has the burden of proving to us beyond a reasonable doubt that Graves “wilfully and deliberately ignored the order of the court.” The State contends it met its burden in the Murphy case because Graves failed to retrieve the videotape and give it to defense counsel despite the court’s previous order to do so. Judge Smith asked Officer Ricky Ray (the arresting officer in the underlying DUI case) whether Graves had access to the tape. Officer Ray replied: “All [Graves] had to do was go over to the property room and get the tape, just like I did this morning.”

¶ 21. On the other hand, Graves claims that he had requested the tape months before the second trial date and that the officer never released it to him. Graves also claims that it would have been improper for him to have taken the tape from the property room, “thereby breaking the chain-of-custody for the evidence.”

¶ 22. There is no other evidence in the record suggesting that Graves “wilfully and deliberately” ignored the court’s order. We hold that the State presented insufficient evidence to prove, beyond a reasonable doubt, that Graves “wilfully and deliberately ignored the order of the court” in the Murphy case. And because it is undisputed that there was no prior court order in the Woods case, there was no indirect criminal contempt as a matter of law.

¶23. But even if the State had met its burden, the conviction for indirect criminal contempt could not stand. Judge Smith was the complainant for alleged criminal contempt that occurred, at least in part, outside his presence, so Graves was entitled to due-process notice and a hearing. As discussed above, criminal contempt often takes the form of conduct that “embarrass[es] the court,” or that “consists] of an open insult ... to the person of the presiding ju[dge].... ”

¶ 24. We have held that, in cases of indirect or constructive criminal contempt, “where the trial judge has substantial personal involvement in the prosecution, the accused contemnor must be tried by another judge.” While we continue to emphasize that not every personal involvement requires recusal, examples of “substantial personal involvement in the prosecution” warranting recusal include cases where the trial judge acts as a “one-man grand jury;” where the trial judge is “instrumental in the initiation of the constructive-contempt proceedings;” and where the trial judge “acts as prosecutor and judge.” In this case, Judge Smith should not have presided over Graves’s contempt proceeding.

¶ 25. We hold that Graves was denied his constitutional right to due process of law. He was given no notice of the hearing, and he was not informed of the charges against him until moments before he was taken to jail. When the court did later conduct a hearing, Graves was not present, and the hearing was conducted by Judge Smith, rather than a different judge, as required by our precedent. And in finding Graves was in contempt of court, the judge relied on matters that did not occur in his presence. Under such circumstances, we must reverse and render Graves’s convictions.

CONCLUSION

¶ 26. Of the three counts of contempt listed in the trial court’s order, one — Zyl-ka — was undisputedly erroneous; another — Woods—was unsupported by any evidence; and the third — Murphy—was not supported by sufficient evidence of the necessary intent. And in all three cases, Graves was denied his right to due process. Accordingly, Graves’s convictions are reversed and the order of the Tunica County Circuit Court is vacated.

¶ 27. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS REVERSED AND RENDERED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR. KING, J., NOT PARTICIPATING.

      . Graves v. State, 66 So.3d 158 (Miss.Ct.App.2010).

      . In re Smith, 926 So.2d 878, 888 (Miss.2006) (citing Neely v. State, 98 Miss. 816, 54 So. 315, 316 (1911)).

      . R.K. v. J.K., 946 So.2d 764, 778 (Miss.2007) (citing Mizell v. Mizell, 708 So.2d 55, 64 (Miss.1998); Cooper v. Keyes, 510 So.2d 518, 519 (Miss.1987)).

        . Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 501, 55 L.Ed. 797 (1911).

      . See, e.g., Sappington v. Sappington, 245 Miss. 260, 147 So.2d 494 (1962).

      . In re Williamson, 838 So.2d 226, 237 (Miss.2002) ("If the primary purpose of the contempt order is to enforce the rights of private party litigants or enforce compliance with a court order, then the contempt is civil.").

      . See, e.g., Purvis v. Purvis, 657 So.2d 794 (Miss.1994).

      . Dennis v. Dennis, 824 So.2d 604, 609 (Miss.2002) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976); Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)).

      . Walls v. Spell, 722 So.2d 566, 574 (Miss.1998).

      . Williamson, 838 So.2d at 237.

      . Brame v. State, 755 So.2d 1090, 1093 (Miss.2000) (citing In re Holmes, 355 So.2d 677, 679 (Miss.1978)).

      . In re Hampton, 919 So.2d 949, 955 (Miss.2006) (citing Williamson, 838 So.2d at 237-38; Moulds v. Bradley, 791 So.2d 220, 224-25 (Miss.2001)).

      . In re Hampton, 919 So.2d at 955 (“[(Constructive contempt involves actions [that] are committed outside the presence of the court....”).

      . R.K., 946 So.2d at 778.

      . Id.

      . See, e.g., Premeaux v. Smith, 569 So.2d 681, 684 (Miss.1990) (existence of a valid order is prerequisite to a finding of indirect or constructive contempt).

      . In re Smith, 926 So.2d at 888 (citing Williamson, 838 So.2d at 226).

      . Cook v. State, 483 So.2d 371, 376 (Miss.1986) (citing Mayberry v. Pennsylvania, 400 U.S. 455, 465-66, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971)).

      . See Cook, 483 So.2d at 377 n. 6.

      . In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955).

      . Terry v. State, 718 So.2d 1097, 1105 (Miss.1998).

      . Cook, 483 So.2d at 376.


author: ISHEE, J., for the Court:

text:
    Artis F. POWER, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01663-COA.
    Court of Appeals of Mississippi.
    Aug. 17, 2010.
    Rehearing Denied Dec. 14, 2010.
    Certiorari Granted March 24, 2011.
    Certiorari Dismissed as Improvidently Granted July 28, 2011.
    Thomas Henry Freeland IV, Billie Jo White, Starkville, attorneys for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J., for the Court:

¶ 1. Artis F. Power was indicted by a grand jury in Choctaw County for two counts of statutory rape and one count of sexual battery. On August 19, 2008, after a trial by jury, Power was found guilty of one count of statutory rape. The circuit court sentenced Power to twenty years in the custody of the Mississippi Department of Corrections. Power timely filed a motion for a judgment of acquittal notwithstanding the verdict or, in the alternative, a motion for a new trial. The circuit court denied his motion, and Power timely filed this appeal.

STATEMENT OF FACTS

¶ 2. During the course of Power’s trial, four witnesses testified for the prosecution: P.S., the victim’s mother; Billy Bla-lack, owner of the land where the events occurred; A.P., the victim’s sister-in-law; and B.S., the victim.

¶ 3. According to the testimony of P.S., her husband and Power had been friends for more than twenty years. She further testified that during December 2006, B.S. was a babysitter for Power’s children, and in the spring of 2007, B.S. began to act “moody” and would “be mean to her brothers and sisters” more often than usual.

¶ 4. Blalack, an acquaintance of Power, had given Power permission to hunt on his land. Blalack testified he saw Power on his land on several occasions during December 2006. He further testified that he saw B.S. accompany Power on one of these occasions; Power was dressed in camouflage; and there was a gun in Power’s truck.

¶ 5. According to B.S.’s testimony, in November 2006, Power asked B.S.’s parents if she could accompany him on a deer hunt. Her father obliged, and B.S. and Power went hunting together. According to B.S., she and Power were in Power’s truck on Blalack’s land hunting when Power got out of the truck, walked over to the passenger side, got in, and had sex with her. B.S. testified she and Power had “done it like a couple more times” later that day in a deer stand. B.S. was thirteen years old at the time, and Power was thirty-three. In April 2007, B.S. told her sister-in-law about her encounter with Power. B.S. never went to the doctor to report what had happened to her, nor did she mention it to her doctor when she had an appointment for a CAT scan around December 2006.

¶ 6. At the close of the State’s case, Power moved for a directed verdict, asserting that the State had failed to meet its burden of proof. Power cited the lack of physical evidence and lack of corroboration of B.S.’s testimony. This motion was denied by the circuit court.

¶ 7. Power’s wife, Mary Power, testified on Power’s behalf. In her testimony, she claimed that in June 2006, Power had fallen while at work, seriously injuring his back. She further claimed that, as a result of his injury, Power was unable to work and was prescribed several medications that he took for approximately seven months. These medications, she said, rendered him impotent. Mary testified that she remembered Power taking B.S. to a deer stand to hunt on one occasion.

¶ 8. A.P., B.S.’s sister-in-law, testified as to the B.S.’s demeanor when she was first interviewed by the police in April 2007. A.P. claimed that B.S. “seemed happy,” and B.S. “didn’t seem like she was upset”; rather, it seemed to A.P. that B.S. was “almost bragging.”

¶ 9. The remainder of the defense testimony was largely related to Counts II and III, both of which Power was acquitted. Other than B.S.’s testimony, there was no physical, medical, or any other evidence of this incident.

DISCUSSION

I. Motion for a Directed Verdict

¶ 10. Power asserts that the circuit court erred in denying his motion for a directed verdict, stating that as a matter of law, Mississippi Code Annotated section 97-3-69 (Rev.2007), requires that where there is evidence contradicting a statutory rape charge, the charge must be independently corroborated by other evidence. Power asserts that he presented evidence which sufficiently contradicted B.S.’s statutory rape claim, and since her claim was uncorroborated, a directed verdict in his favor was in order.

¶ 11. While it is true that the totally uncorroborated testimony of the sex-crime victim is sufficient to support a guilty verdict, it is only where the uncorroborated testimony is consistent with the circumstances and is not discredited or contradicted by other credible evidence. Parramore v. State, 5 So.3d 1074, 1077-78 (¶ 1) (Miss.2009). B.S.’s testimony was not discredited. The question then is whether Mary’s testimony concerning Power’s alleged impotence was sufficient to contradict B.S.’s testimony, or whether that testimony was simply a matter for the jury to consider.

¶ 12. Power argues B.S.’s testimony of that the statutory rape occurred was sufficiently contradicted by the testimony of Mary, who testified that Power was impotent and, therefore, incapable of having sexual relations due to the medications he was taking for his back injury. Power neither offered any medical proof to support Mary’s contention, nor did he offer any expert or medical opinions as to his alleged impotency. He never testified himself that he was impotent. Mary testified that her husband never mentioned the dysfunction at all, and her conclusion that he suffered from the condition rested on the fact that she had “read up” on the medications he was taking. Although Power’s alleged impotency arose in July 2006, he did not seek medical assistance for the problem until after he was arrested in April 2007. The mere testimony by his spouse that he was impotent, without more, is insufficient to contradict B.S.’s claim of statutory rape.

¶ 13. Power cites Upton v. State, 192 Miss. 339, 6 So.2d 129 (1942) in an attempt to support his claim that testimony of his impotence is sufficient to contradict B.S.’s claim of statutory rape. However, Upton involved a prosecution for forcible rape, and while it is true that there was testimony presented by the defense to the effect that the accused was impotent, it was not that testimony alone that caused the Mississippi Supreme Court to order a new trial. Other than Upton, Power presents no decision, and we have found none, to demonstrate that a claim of impotency is itself sufficient to amount to a contradiction of a victim’s testimony. The jury was fairly and adequately instructed in reference to the law in regard to this case. The jury observed the witnesses, heard the testimony, and made a determination that the defendant was guilty. We find that Mary’s testimony regarding Power’s alleged impotence was insufficient to contradict B.S.’s testimony, and the circuit court did not err in denying Power’s motion. This issue lacks merit.

II. Hearsay Testimony

¶ 14. Power argues that the trial court erred in admitting hearsay testimony from B.S. We disagree.

¶ 15. Toward the conclusion of the direct examination of B.S., the State asked B.S. whether she had told anyone “about all this.” B.S. replied that she told her sister-in-law. The defense objected on the ground of hearsay; the circuit court overruled the objection, stating that the question put to the witness did not call for an answer that would be hearsay. The State then asked B.S. who her sister-in-law was, and then the prosecutor asked her what she had told her sister-in-law. There was no objection to the latter question, and B.S. responded that she told her sister-in-law that Power had sex with her. B.S. went on to testify, again without objection by the defense, that B.S. sister-in-law told her husband about what B.S. had told her.

¶ 16. The answer given by B.S. to the question that was objected to was not hearsay. It was a simple statement of fact — a statement that she had made a statement to her sister-in-law. Testimony as to the fact a statement was made is not hearsay. As to the rest of the testimony, which possibly included hearsay statements, there was no objection to that testimony as it was given. The failure to make a contemporaneous objection waives the issue on direct appeal. Wells v. State, 698 So.2d 497, 514 (¶ 21) (Miss.1997).

¶ 17. While Power relies upon Leatherwood v. State, 548 So.2d 389 (Miss.1989) in his effort to demonstrate error in the admission of B.S.’s testimony, there was a proper and contemporaneous objection in Leatherwood that preserved the point on appeal. There was, as we have stated, none here. Therefore, Power is procedurally barred from raising this issue for the first time on appeal.

¶ 18. THE JUDGMENT OF THE CHOCTAW COUNTY CIRCUIT COURT OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CHOCTAW COUNTY.

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

      . The Court of Appeals declines to identify the victim of sexual assault. In the interest of the child's privacy, the minor's name, as well as the names of family members, have been substituted with initials.


author: LEE, P.J.,

text:
    Charles B. GRAVES, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CA-00626-COA.
    Court of Appeals of Mississippi.
    Aug. 17, 2010.
    Rehearing Denied Nov. 16, 2010.

      Steven Ellis Farese Jr., attorney for appellant.
    Office of the Attorney General by Ladonna Holland, attorney for appellee.
    LEE, P.J., ROBERTS and CARLTON, JJ.
   LEE, P.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On March 12, 2009, the Tunica County Circuit Court Judge signed orders holding Charles B. Graves Jr. in contempt of court for issues related to three separate DUI cases, which were on appeal from justice court. Graves is the County Prosecutor for Tunica County. Stan Little represented both the first and second defendants. In the first case, Graves informed the circuit judge that he and Little had agreed to a dismissal. When the circuit judge refused to dismiss the case, Little stated he had not had a chance to view the videotape of his client’s arrest. The circuit judge had previously ordered Graves to provide the videotape to Little. The circuit judge held both attorneys in contempt for being unprepared. In the second case, Little again stated he had not been given an opportunity to view the videotape of his client’s arrest. As in the first case, the circuit judge held both attorneys in contempt for being unprepared. When the circuit judge called the final and third case, Graves informed him that the defendant’s attorney had requested a continuance. Graves had told the attorney he would not object to a continuance but that the attorney should file a motion for a continuance. While the circuit judge held the defendant’s attorney in contempt for failing to appear in court, it is unclear whether he actually held Graves in contempt of court for his conduct in the third case. The circuit judge’s order fined Graves $100 and sentenced him to two days in jail. The circuit judge later modified the contempt order and sentenced Graves to time served.

¶ 2. Graves now appeals, asserting several issues that we paraphrase as follows: whether his conduct constituted contempt of court.

DISCUSSION

¶ 3. In contempt actions, the first question to determine is whether the actions of Graves amounted to civil or criminal contempt. “If the primary purpose [of the contempt order] is to enforce the rights of private party litigants or enforce compliance with a court order, the contempt is civil.” Purvis v. Purvis, 657 So.2d 794, 796 (Miss.1994). Criminal contempt is designed to punish the defendant for disobedience of a court order. In re Smith, 926 So.2d 878, 887-88 (¶ 18) (Miss.2006). “This is proper only when the contemnor has wilfully, deliberately and contumaciously ignored the court, or the court’s directive.” Id. As Graves was found in contempt for disobeying a court order, this case is a matter of criminal contempt.

¶ 4. In matters concerning criminal contempt, it is our duty to determine whether the record proves the contemnor’s guilt beyond a reasonable doubt. Id. at 888 (¶ 13). There are two forms of criminal contempt: direct contempt and constructive contempt. “Direct criminal contempt involves words spoken or actions committed in the presence of the court that are calculated to embarrass or prevent the orderly administration of justice.” Moulds v. Bradley, 791 So.2d 220, 224 (¶ 7) (Miss.2001). The punishment for direct criminal contempt “may be meted out instantly by the judge in whose presence the offensive conduct was committed....” Id. Constructive criminal contempt, however, involves actions which occur outside the presence of the court. Id. at 225 (¶ 8). In this instance, the contemnor must be provided certain procedural due-process safeguards such as notice and a hearing. Id.

¶ 5. The record does not reflect any conduct by Graves that would support a finding of direct criminal contempt. We now look to the record to determine whether Graves was guilty of constructive criminal contempt beyond a reasonable doubt. The circuit judge found Graves in contempt of court for failing to provide a videotape to Little on two separate cases. In one of the cases, Graves had been ordered to comply with discovery rules and give the videotape to Little. Prior to trial, Graves and Little decided to enter an agreed order of dismissal. However, the circuit judge refused to dismiss the case and instead found both Graves and Little to be in contempt of court. In the other case, there was also an issue regarding the viewing of a videotape. However, there was some confusion as to the circumstances surrounding Little’s attempt to view the videotape. Unlike the first case, there was no prior order entered instructing Graves to comply with discovery.

¶ 6. According to the record, Graves was prepared for court and tried to get one of the cases dismissed when he realized that Little had not seen the videotape prior to trial. Although Graves failed to follow the circuit judge’s order regarding discovery, we cannot find that the evidence in the record proves beyond a reasonable doubt that Graves “wilfully, deliberately and contumaciously ignored the court.” In re Smith, 926 So.2d at 887-88 (¶ 13). Finding that the circuit judge erred in finding Graves in contempt, we reverse and render.

¶ 7. We note that Graves’s due-process rights were violated as he was not provided with notice and a hearing. However, as we have found that Graves should not have been found in contempt, it is unnecessary to remand for application of proper procedural safeguards.

¶ 8. THE JUDGMENT OF THE TUNI-CA COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY. BARNES, J., NOT PARTICIPATING.


author: BARNES, J.,

text:
    Dennis COSBY, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01300-COA.
    Court of Appeals of Mississippi.
    Sept. 7, 2010.
    Rehearing Denied April 19, 2011.
    Certiorari Denied July 28, 2011.

      David L. Walker, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for Appel-lee.
    Before KING, C.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. Dennis Cosby was convicted of the murder of his wife, Wendy Cosby, and sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). He appeals claiming jurisdiction and venue were improper and challenging the legal sufficiency and weight of the evidence. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On February 10, 2008, Brandon Hodges, a criminal investigator for Talla-hatchie County, Mississippi, was informed that a body had been found in the Talla-hatchie River. Upon arriving at the area where the body had been recovered, Investigator Hodges noted that the decomposed body was that of an adult white female. An autopsy later revealed the adult female died from a stab wound to the left lung, and the manner of death was homicide. While there was evidence of cocaine use, the cocaine was at a nontoxic level. The victim was wearing a wedding band. Investigator Hodges contacted surrounding counties to determine whether any adult white females had been reported missing. However, he was unable to determine the identity of the deceased female at that time.

¶ 3. Five months later, on July 10, 2008, Deputy Mark Whitten with the Panola County Sheriffs Department contacted Investigator Hodges, informing him that Wendy had been reported missing by her sister, Sandy Ealy. Investigator Hodges visited Cosby, who identified the wedding ring found on the body as belonging to his wife, Wendy. The couple had been married approximately five years and had two young children born of the marriage. Investigator Hodges noted that Cosby appeared to be very nervous. Cosby said the last time that he saw Wendy was on November 24, 2007. He stated she had gotten angry at him because he would not give her money, and that she took some clothes and left the home. Cosby claimed that the last time he saw her, she was walking up the road. According to Cosby, it was not unusual for Wendy to disappear for a few days at a time as she had a substance-abuse problem.

¶ 4. Investigator Hodges obtained DNA samples from the children, and the deceased female was positively identified as Wendy. Law enforcement asked Cosby to give a recorded statement. He reiterated his previous version of events — that Wendy had become mad at him and walked out. However, Investigator Hodges and Tim Douglas, an agent with the Mississippi Bureau of Investigation, later learned that, on December 5, 2007, Cosby had contacted the Social Security Administration and had Wendy’s disability check sent to him as a survivor. Thus, at a second interview on July 30, 2008, Cosby was read a Miranda warning and questioned further by Investigator Hodges and Deputy Whitten. Cosby amended his previous story and stated that late in the evening, on November 24, 2007, he and Wendy had a physical altercation over money. Cosby said that Wendy began hitting and scratching him; in response, he hit Wendy on the top of her head with his fist, and the blow “knocked her out.” He loaded the couple’s two children into his truck, and put Wendy’s unconscious body in the back of the truck. He said that she had a “peaceful look like she was asleep,” and she was still breathing. He claimed he thought “maybe she’ll wake up and bang on the truck.” Cosby drove to Paducah Wells Road, which is located in Tallahatchie County, and stopped on a concrete bridge. When Cosby could not get Wendy to wake up, he dropped her body over the side of the bridge into the river below. He said he could not tell if she was alive or dead. After Cosby threw Wendy off the bridge, he heard “a clunk like a thong or thud.” Cosby never contacted the police. However, a few days later, he contacted the Drug Task Force because there were drugs in Wendy’s van. Cosby told them that Wendy was gone. They told him to contact the sheriffs department, but Cosby never filled out any paperwork or followed up with law enforcement.

¶5. After this second interview, Cosby was charged with murder, and a jury trial was held on August 8-4, 2009. Testifying at trial, Cosby again changed his story of what had happened on November 24, 2007. He reiterated that Wendy was angry because she was unable to obtain money to get gas for her vehicle, and that the two had a physical altercation. However, he claimed that she never lost consciousness when he hit her; rather, she voluntarily got into the truck with him and the children. Cosby testified that she just wanted them to take an impromptu trip somewhere, but he reminded her that they did not have enough gas or money. After riding around a bit more, Cosby claimed he slowed the vehicle down near Paducah Wells Road, Wendy turned to him and said, “I’ll show you, you S.B.,” and she jumped out of the car and disappeared into the darkness. He assumed she had “jumped over the bridge” and “committed suicide.” Cosby contended that his previous version of the facts from the second interview was merely what the investigators wanted him to say, and they pressured him to make those statements.

¶ 6. A jury in the Panola County Circuit Court convicted Cosby of murder, and he was sentenced by the circuit court to life in the custody of the MDOC. Cosby filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV), which the circuit court summarily denied. Cosby timely filed his notice of appeal, and we now consider the merits of his appeal.

DISCUSSION

I. Whether jurisdiction or venue was proper.

¶ 7. Cosby asserts that Wendy’s death occurred in the First Judicial District of Tallahatchie County, Mississippi; therefore, the Panola County Circuit Court of the Second Judicial District had no jurisdiction to consider the case, and the judgment should be dismissed. As jurisdiction is a question of law, we apply a de novo standard of review in determining “whether jurisdiction over a particular matter is proper[.]” Winding v. State, 908 So.2d 163, 165 (¶ 8) (Miss.Ct.App.2005) (citing Sanderson Farms, Inc. v. Gatlin, 848 So.2d 828, 841 (¶ 38) (Miss.2003)). “[Wjhen two crimes have occurred as one continual event in whole or in part in different counties, jurisdiction is proper in the county in which prosecution is first begun.” Id. at 166 (¶ 12) (citing Stubbs v. State, 845 So.2d 656, 671 (¶ 59) (Miss.2003)). This holding is based on Mississippi Code Annotated section 99-11-19 (Rev.2007), which states that:

When an offense is committed partly in one county and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun.

Thus, if there exists sufficient evidence that a portion of the crime occurred in the county where the trial is being held, “then the evidence of venue is sufficient.” Hill v. State, 797 So.2d 914, 916 (¶ 12) (Miss.2001).

¶ 8. As the circuit judge noted, if the only version of the facts were those presented by Cosby at trial, there might be merit to Cosby’s jurisdictional argument. However, in his second interview, Cosby confessed that he hit Wendy, rendering her unconscious, at their home in Panola County, Mississippi, and that he took Wendy across the county line and dumped her into the river. This series of actions constituted a continuous event, which resulted in Wendy’s death. See e.g., Thorson v. State, 653 So.2d 876, 895 (Miss.1994) (defendant subject to prosecution in either of the county’s judicial districts where the abduction of the victim was in the first judicial district but the victim’s death occurred in the second judicial district). This version of the facts was relied upon by the State in seeking its indictment, and the evidence was sufficient to establish that the crime originated in Panola County. See McBride v. State, 934 So.2d 1033, 1035 (¶ 10) (Miss.Ct.App.2006) (if the evidence is sufficient “to lead a reasonable trier of fact to conclude that part or all of the crime occurred in the county where the case is being tried, then evidence of venue is sufficient”) (citing Hill, 797 So.2d at 916 (¶ 12)). Accordingly, we find the Panola County Circuit Court had jurisdiction over the offense, and this issue is without merit.

II. Whether the circuit court erred in denying Cosby’s motion for a JNOV or his motion for new trial.

¶ 9. “A motion for a JNOV challenges the legal sufficiency of the evidence.” Parker v. State, 20 So.3d 702, 708 (¶ 25) (Miss.Ct.App.2009) (citing Terrell v. State, 952 So.2d 998, 1004 (¶ 23) (Miss.Ct.App.2006)). In reviewing the denial of a motion for a JNOV, we give the State “the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Fannings v. State, 997 So.2d 953, 961 (¶ 26) (Miss.Ct.App.2008) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). “All credible evidence consistent with the defendant’s guilt will be accepted as true.” Id. This Court will only reverse if “evidence of one or more of the elements of the charged offense is such that ‘reasonable and fair minded jurors could only find the accused not guilty.’ ” Id. (quoting Haw thorne v. State, 835 So.2d 14, 21 (¶ 31) (Miss.2003)).

¶ 10. However, “a motion for a new trial challenges the weight of the evidence.” Liddell v. State, 33 So.3d 524, 534 (¶ 34) (Miss.Ct.App.2010) (citation omitted). We review a circuit court’s denial of a motion for a new trial under an abuse-of-discretion standard. Id. Evidence is to be viewed “in the light most favorable to the verdict.” Sneed v. State, 31 So.3d 33, 43 (¶33) (Miss.Ct.App.2009) (citing Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005)). “The jury sits as the fact-finder and determines the credibility of the witnesses and gives value to the weight of the evidence against the accused.” Drummond v. State, 33 So.3d 507, 510 (¶ 8) (Miss.Ct.App.2009) (quoting Moss v. State, 977 So.2d 1201, 1215 (¶ 36) (Miss.Ct.App.2007)). Only when the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice” will it be disturbed upon appeal. Id. (quoting Bush, 895 So.2d at 844 (¶ 18)). Therefore, this Court’s task, in reviewing the weight of the evidence, is to sit as a thirteenth juror. Murray v. State, 19 So.3d 1278, 1282 (¶ 14) (Miss.Ct.App.2009) (citing Bush, 895 So.2d at 844 (¶ 18)).

¶ 11. Cosby concedes that he presented several contradictory versions of the events surrounding his wife’s death. However, he claims that his second interview showed he was acting in self-defense when he struck Wendy on the head. Further, he submits that the State could not prove where or when Wendy died and that the State failed to prove that he had any intent to murder Wendy.

¶ 12. First, the State was not required to submit evidence of the precise location or time of Wendy’s death in order to prove that Cosby committed all of the elements of the crime for which he was charged. Cosby was convicted under Mississippi Code Annotated section 97-3-19(l)(a) (Rev.2006), which states: “[t]he killing of a human being without the authority of law by any means or in any manner shall be murder ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being[.]” Thus, the State merely had to provide credible evidence that Wendy was killed and that Cosby possessed a “deliberate design” to cause Wendy’s death “without the authority of law.” At trial, the forensics expert testified the cause of Wendy’s death was a stab wound to the chest. Admittedly, there was no evidence that Cosby stabbed Wendy; however, there was credible evidence Cosby took deliberate action to effectuate Wendy’s death. Cosby told law enforcement that he took Wendy’s unconscious body and dropped it over a bridge into the river below, and he heard her body hit something.

¶ 13. As to intent, Cosby admitted he threw Wendy into the river. However, Cosby claimed he had no intent of throwing Wendy in the river; his intent was just to “hide” her. “[IIntent is typically a jury issue, which will not be disturbed by the reviewing court as long as the record supports the jury’s finding of fact.” Sneed, 31 So.3d at 44 (¶ 36) (citing Boyd v. State, 977 So.2d 329, 335-36 (¶23) (Miss.2008)). This Court has held that “deliberate design to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent.” Id. at 42 (¶ 26) (quoting Brown v. State, 965 So.2d 1023, 1030 (¶28) (Miss.2007)).

¶ 14. Furthermore, Cosby’s claim that he had no intent is merely another example of the numerous inconsistent statements issued by Cosby regarding the events of November 24, 2007. For instance, during the same interview where he admitted throwing Wendy into the river, he also made obvious contradictory statements, which law enforcement immediately noted:

MARK WHITTEN: But you personally is your ... as her husband did not contact the Sheriff Department and report her missing is that right[?]
DENNIS COSBY: No[,] not at that time[.]
Not, not to report her missing cause I had gotten a phone call about the ... somebody had seen her....
MARK WHITTEN: Yeah but you but Dennis you knew that was impossible cause you put her in a body of water[.] I mean you, you knew that was impossible!;.]
DENNIS COSBY: Well I mean that, that’s, that’s true too but I’m saying that person that, that I guess that was just ah an answer I wanted to hear[.]
MARK WHITTEN: But although you knew that was impossible!;.]
DENNIS COSBY: Yeah[,] yes I did[.]
MARK WHITTEN: Okay so you knew she wasn’t coming back home[.] I mean you knew that[?]
DENNIS COSBY: Well[,] yes sir[.]

Cosby admitted at trial that he had lied to law enforcement. When questioned about what he told Investigator Hodges on the first visit to identify the wedding band, Cosby testified: “I was just panicking. I didn’t know what to tell him.... I guess I told them a lie.”

¶ 15. Our supreme court has held that “[f]actual disputes are properly resolved by the jury and do not mandate a new trial.” McNeal v. State, 617 So.2d 999, 1009 (Miss.1993). The jury, as the fact-finder, was able to consider Cosby’s contradictory statements, which cast doubt on the credibility of his testimony regarding intent. Therefore, we cannot find any error in the jury’s finding that Cosby’s act, throwing Wendy’s body over the bridge, was an intentional act designed to effect Wendy’s death.

¶ 16. Additionally, evidence showed Cosby had a financial motive to kill Wendy. He testified that Wendy was spending approximately one thousand dollars per month, presumably on illegal drugs. Shortly after her disappearance, Cosby had her social-security disability income converted to him as a survivor, presumably to provide for their children.

¶ 17. As to Cosby’s claim that he acted in self-defense, the circuit judge observed that there was “no testimony that [Cosby] feared bodily injury or that he had to do anything to ward off severe personal injury to himself or anyone else.” There is testimony that Wendy was the one who initiated the physical altercation and that Cosby struck her in response to her attack. However, for a self-defense claim to be valid, a defendant must have acted “in response to an urgent actual threat or on a reasonable belief that such threat [was] actual or imminent.” Johnson v. State, 29 So.3d 738, 746 (¶ 24) (Miss.2009) (citation omitted). According to Cosby, in his second interview, Wendy was knocked unconscious by his initial blow to her head; therefore, any actual or imminent threat from Wendy was eliminated while still at the home. Cosby’s throwing Wendy’s unconscious body from the bridge was not in any way a response to an actual or perceived threat from Wendy. Consequently, we find no merit to Cosby’s claim of self-defense.

¶ 18. We find that the evidence was legally sufficient and affirm the circuit court’s denial of Cosby’s motion for a JNOV. Furthermore, weighing the evidence in the light most favorable to the verdict, we find the overwhelming weight of the evidence supported the verdict. Accordingly, we find that the circuit court’s denial of Cosby’s motion for a new trial was not an abuse of discretion, and this issue is without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANO-LA COUNTY.

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


author: KING, C.J.,

text:
    Ellis GRISBY, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01915-COA.
    Court of Appeals of Mississippi.
    Nov. 9, 2010.
    Rehearing Denied April 26, 2011.
    Certiorari Denied July 28, 2011.

      Stephen Nick, Greenville, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court:

¶ 1. Ellis Grisby and Joby Pam were tried in the Circuit Court of Washington County for attempted armed robbery. Pam was acquitted. Grisby was convicted and sentenced to thirteen years in the custody of the Mississippi Department of Corrections (MDOC), with eight years to serve and five years of post-release supervision. Grisby filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the motion. Aggrieved, Grisby timely filed this appeal, raising three arguments:

I. Whether the prosecution failed to prove venue/jurisdiction;
II. Whether the trial court erred by recalling the jury to read jury instruction D-7; and
III. Whether the verdict is against the overwhelming weight of the evidence.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

A. Attempted Armed Robbery

¶ 2. The attempted armed robbery occurred on August 1, 2005, at approximately 6:00 p.m., in Hollandale, Mississippi. On that night, Howard Sanders arrived home to the ■ sound of his burglar alarm. Sanders entered his home through the back door. As he reached to deactivate the alarm, he was pushed from behind. Sanders turned around to face two masked men brandishing firearms. Sanders testified that the taller man was approximately 5'8" or 5'9"; the shorter man, who was wearing a green shirt, was approximately 5'4" or 5'5".

¶ 3. The robbers demanded that Sanders deactivate the alarm, but Sanders refused. Then, the phone rang. Sanders informed the robbers that the security company was calling and that the police would soon be on their way. As the taller man turned to flee, the shorter man discharged his weapon in Sanders’s home. Pretending to be wounded, Sanders fell to the ground, causing the shorter man to flee.

¶ 4. After the robbers left, Sanders answered the phone and alerted the security company to contact the police. Sanders then went outside to see in which direction the suspects fled, but they had already disappeared. Sanders approached several young men, who were playing football in the street, and they shared what they had witnessed. The young men also gave statements to the police.

B. Witnesses

¶ 5. Jack Winder Jr. testified that he was playing football in the street with his friends at the time of the robbery. During their game, two men, one he called “Peanut,” walked out of an alley, passed them, and walked across the railroad tracks. Winder identified Grisby in court as “Peanut” and testified that Grisby was wearing a green shirt that day. Although Winder could not identify the second man by name, he identified Pam as the person who was accompanying Grisby; he testified that Pam was wearing a red shirt that day. A few moments later, Winder heard Sanders’s burglar alarm and then a gunshot. Winder ran away from the commotion. He testified that he heard Sanders’s fence rattle, but the tall grass behind the fence obstructed his view.

¶6. Alfred Seals could not identify the men by name, but he identified Grisby and Pam in court as the two men who had walked down the street during their football game. He testified that one man was wearing a green shirt, and the other man was wearing a red shirt. After the men crossed the railroad track, Seals did not see them anymore. The teenagers continued to play football. Then, Seals heard Sanders’s burglar alarm, and he heard a gunshot seconds later. Seals ran toward Sanders’s home to see what had happened. Seals testified that he saw a man wearing a green shirt run behind Sanders’s fence.

¶ 7. Kentavius Vallery testified that several people walked down the street during their football game. He recalled seeing Grisby and Pam walk down the street. He testified that one of them was wearing a red shirt. Vallery also heard Sanders’s burglar alarm; seconds later, he heard a gunshot. Vallery ran away from Sanders’s home, and he did not see or hear anything else.

C. Police Investigation

¶ 8. Based on this information, the police arrested Grisby and Pam, who were both dressed differently than the witnesses had described. The police obtained a search warrant to search Grisby” s home for evidence. There, the police found a damp, green shirt in a laundry basket. None of the witnesses were asked to identify whether this green shirt was the same green shirt that Grisby was wearing on the day of the incident.

¶ 9. The police performed gunshot-residue tests on Grisby and Pam; both results were negative. Johnny Spand, the assistant chief investigator for the Hollandale Police Department, testified that the witnesses identified Grisby and Pam in a photographic lineup. On cross-examination, Spand testified that Sanders had filed a police report one month prior to the incident in which he had reported that his neighbor told him that he had overheard Grisby and another man named Marquis Driver discussing plans to rob Sanders’s home. This testimony was received without an objection.

D. Alibi Witnesses

¶ 10. Grisby and Pam both presented alibi witnesses. Marcus Cole and Nicholas Cain testified as alibi witnesses for Grisby. Cole testified that on the day of the incident, he was with Grisby from 11:00 a.m. to 6:30 p.m. They played basketball until Grisby fell and cut his hand. Then, they went to Grisby’s home where he cleaned his wound. They later went to “the tree,” which is located in a vacant lot across from Smitty’s Convenience Store, to play cards. Cain testified that he also played basketball with Grisby that day, and he saw Grisby under “the tree” at 5:30 p.m. Other witnesses placed Pam at “the tree” around the same time.

¶ 11. Grisby also testified. He stated that he was playing basketball earlier that day until he fell and injured his hand. He went to “the tree” at 5:15 p.m. and later went to Smitty’s. Grisby testified that he did not leave the area until the police arrested him at 7:00 p.m. Grisby admitted that his nickname is “Peanut” and that he is approximately 5'3" or 5'4". Grisby also stated that he knew Pam, but they did not socialize with each other.

E. Jury Instructions

¶ 12. After the defense rested, the trial court and the parties went over the jury instructions. Grisby’s trial counsel, who is also his counsel on appeal, asked the trial court to include Grisby in all applicable jury instructions that were submitted on behalf of Pam. The trial court informed Grisby’s trial counsel that he should submit his own jury instructions, but the trial court agreed to do so. Pam submitted jury instruction D-7, which instructed the jury how to consider identification evidence. See app. A. The jury instruction contained several references to Pam. The trial court added a paragraph at the end of the instruction that instructed the jury to apply the same considerations to the identification evidence concerning Grisby. Grisby’s trial counsel did not object to the addition of this paragraph.

¶ 13. Upon completion of the jury instruction conference, the jury was called in; the trial court read the jury instructions; and the parties presented their closing arguments. After closing arguments, the jury retired to deliberate at 12:25 p.m. Shortly thereafter, Pam’s trial counsel realized that the trial court had failed to read jury instruction D-7 to the jury. Without objection, the trial court recalled the jury and read jury instruction D-7. The jury again retired to deliberate at 12:30 p.m.

¶ 14. The jury returned with its verdict. Pam was acquitted. Grisby, however, was found guilty of attempted armed robbery.

ANALYSIS

A. Venue/Jurisdiction

¶ 15. Grisby argues that the State failed to prove venue and jurisdiction pursuant to Mississippi Code Annotated section 99-11-3(1) (Rev.2007). Section 99-11-3(1) provides, in pertinent part, that: “[T]he local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where committed.” Through direct or circumstantial evidence, the State must prove venue beyond a reasonable doubt. Hill v. State, 797 So.2d 914, 916 (¶ 10) (Miss.2001). The failure to do so “would constitute an insufficiency in the evidence.” Thomas v. State, 784 So.2d 247, 249 (¶ 6) (Miss.Ct.App.2000).

¶ 16. The attempted robbery took place in Sanders’s home. Sanders testified at trial that his home is located in Hollan-dale, Mississippi, in Washington County. Additionally, law enforcement from the Hollandale Police Department and the Washington County Sheriffs Department confirmed Sanders’s address. Thus, we find that there was direct evidence to establish Washington County as the proper venue. This argument is without merit.

B. Jury Instruction D-7

¶ 17. Grisby argues that the trial court erred by recalling the jury to read jury instruction D-7. Specifically, Grisby contends that the instruction improperly singled out evidence against him and that the timing of the reading of the jury instruction negatively influenced the jury to acquit Pam.

¶ 18. Jury instruction D-7 was submitted by Pam. However, Grisby’s trial counsel asked the trial court to include Grisby in any jury instruction that was submitted on behalf of Pam. The trial court obliged and modified the jury instruction, adding Grisby. The trial court read its proposed modification aloud, and Grisby raised no objection. Grisby also did not object when the trial court recalled the jury to read the instruction.

¶ 19. Grisby’s failure to lodge a contemporaneous objection to the reading of the jury instruction waives the issue on appeal. See Roberson v. State, 838 So.2d 298, 305 (¶ 27) (Miss.Ct.App.2002). Furthermore, “[i]t is a familiar rule of law that one may not complain of his own [jury] instruction.” Caston v. State, 823 So.2d 473, 508 (¶ 121) (Miss.2002) (quoting Hall v. State, 420 So.2d 1381, 1386 (Miss.1982)). Because Grisby jointly offered jury instruction D-7, we find that this issue is procedurally barred from review.

C. Weight of the Evidence

¶ 20. Grisby argues that the trial court erred by denying his motion for a directed verdict. However, Grisby’s argument focuses on the weight of the evidence.

¶ 21. When determining whether the jury’s verdict is against the overwhelming weight of the evidence, the evidence is viewed in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). This Court will not disturb the jury’s verdict unless “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id.

¶ 22. Grisby contends that the evidence against him and Pam is similar; thus, it is unconscionable that the jury acquitted Pam but found him guilty of the charge. However, the jury does not have to reach the same result with both defendants. In Newell v. State, 308 So.2d 68, 69 (Miss.1975), the evidence against two co-defendants was essentially the same. However, the jury acquitted one defendant and found the other defendant guilty. Id. The convicted defendant appealed the jury’s verdict. On appeal, the Mississippi Supreme Court ruled that:

If the defendants ... had been tried separately on the same indictment and the testimony had been identical in both cases, an acquittal of one would not affect a verdict of guilty as to the other. The rule should be the same when they are tried together.

Id. at 70. Thus, we will not reverse Gris-by’s conviction based simply on Pam’s acquittal.

¶ 23. Grisby also argues that the State failed to prove that he committed the crime beyond a reasonable doubt because Sanders could not identify the suspects; the green shirt found at Grisby’s home was not identified; and the gunshot-residue test was negative.

¶ 24. In regard to Grisby’s gunshot-residue test, a representative from the Mississippi State Crime Laboratory testified that gun-powder residue is removed over time. For instance, if a person washes his hands, the residue is gone. Therefore, “a negative result of a gun[-]powder[-residue] test would not conclusively prove [the defendant’s] innocence.” Sanders v. State, 939 So.2d 842, 849 (¶ 24) (Miss.Ct.App.2006).

¶ 25. Sanders was not able to identify the robbers because their faces were covered. However, Sanders did testify that one of the robbers was wearing a green shirt, and he was approximately 5'4" or 5'5". Grisby testified that he was approximately 5'3" or 5'4". Winder and Seals testified that they saw Grisby walking in the area of Sanders’s home moments prior to the incident, and Grisby was wearing a green shirt that day. Seals testified that he saw a man, wearing a green shirt, flee from Sanders’s home. In addition, the police found a damp, green shirt in a laundry basket in Grisby’s home.

¶ 26. With regard to Grisby’s alibi, it is within the jury’s province to determine the weight and credibility of the evidence and to resolve any conflicts in the evidence. See id. at 848 (¶ 19). Viewing the evidence in the light most favorable to the verdict, we cannot say that the verdict is against the overwhelming weight of the evidence. Thus, we will not disturb the judgment. This argument is without merit.

CONCLUSION

¶ 27. We find that the State properly established venue/jurisdiction through the testimony of Sanders, the victim. Because Grisby jointly offered jury instruction D-7, this issue is procedurally barred from review. And the verdict is not against the overwhelming weight of the evidence.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF ATTEMPTED ARMED ROBBERY AND SENTENCE OF THIRTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHT YEARS TO SERVE AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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

APPENDIX A

JURY INSTRUCTION NO. D-7

The Court instructs the jury that in reaching your verdict you are to consider all of the evidence concerning the entire case and the circumstances surrounding the crime. One of the issues in this case is the identification of Joby Pam as the perpetrator of the crime charged. As with each element of the crime charged, the State has the burden of proving identity beyond a reasonable doubt, and before you may convict Joby Pam you must be satisfied beyond a reasonable doubt of the accuracy of the identification of Joby Pam. If, after considering all of the evidence concerning the crime charged, including identification testimony of Joby Pam, if any, as one of the people who committed the crime charged, you are not convinced beyond a reasonable doubt that he is the person who committed the crime charged, then you must find him not guilty of the crime charged.

Identification testimony is an expression of belief or impression by the witness. You must judge its value and reliability from the totality of the circumstances surrounding the crime and the subsequent identification. In appraising the identification testimony of a witness, you should consider the following:

1. Did the witness have an adequate opportunity to observe the offender?
2. Did the witness observe the offender with an adequate degree of attention?
3. Did the witness provide an accurate description of the offender after the crime?
4. How certain is the witness of the identification?
5. How much time passed between the crime and the identification?

If, after examining all of the testimony and the evidence, you have a reasonable doubt that Joby Pam was the person who committed the crime charged, then you must find Joby Pam not guilty of the crime charged.

The same issues of identity as explained above relate to your consideration of whether Ellis Grisby was the person who committed the crime charged. Should you have a reasonable doubt as to Ellis Gris-by’s identity as a person who committed this crime, you must find Ellis Grisby not guilty.

      . Jury instruction D-7 has been recited verbatim in Appendix A.