author: PIERCE, Justice, KITCHENS, Justice,

text:
    The AUTOMOBILE INSURANCE COMPANY OF HARTFORD v. William LIPSCOMB, Westbrook Cooper, and Harold E. Whittington. The Automobile Insurance Company of Hartford v. William Lipscomb, Westbrook Cooper, and Harold E. Whittington.
    Nos. 2010-IA-00149-SCT, 2010-IA-00153-SCT.
    Supreme Court of Mississippi.
    Dec. 8, 2011.

      Jessie Wayne Doss, Jr., Dan W. Webb, Tupelo, attorneys for appellant.
    Philip W. Thomas, Jackson, Bill Waller, Sr., attorneys for appellees.
    Before CARLSON, P.J., PIERCE and KING, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. On July 7, 2006, a fire occurred at the apartment building rented by Paul Booker Whittington, Jr., and Westbrook Cooper (Plaintiffs). Whittington died from injuries he sustained in the fire, while Cooper was injured but survived. The building was owned by William Lipscomb, and it was located on the same property as Lipscomb’s residence. Plaintiffs sued Lipscomb in tort and amended their complaint to seek declaratory judgment against Lipscomb’s insurer, the Automobile Insurance Company of Hartford, Connecticut (AIC), on the issue of coverage. AIC filed a motion to sever and a motion for summary judgment, which the trial court denied. AIC filed two separate petitions for interlocutory appeal and requested that the Court consolidate the two issues raised in the separate petitions. After reviewing the complaint, together with the insurance policy and the relevant deposition testimony, we have determined there is no genuine issue of material fact as to the issue of coverage, and that AIC’s motion for summary judgment should have been granted.

FACTS

¶ 2. William Lipscomb owned and maintained his personal residence and rental property in Jackson, Mississippi. This property included a two-story building, set apart from the main house, that Lipscomb rented out as apartments. The first-floor apartment was rented by Whittington, the decedent, and the second floor was occupied by Cooper.

¶ 3. On July 7, 2006, the fire started in the garage of the apartment building and spread to both the first and second floors. Cooper was forced to jump from his apartment out of a second-floor window and incurred several injuries. Whittington was unable to escape the fire, as the only door for ingress and egress was engulfed in flames. Whittington later died at a hospital from injuries he sustained in the fire.

¶ 4. AIC insured the dwelling house owned by Lipscomb. The homeowners policy included personal liability coverage for bodily injury and property damage. After the fire, AIC denied coverage, citing two provisions: the first prevented coverage for bodily injury or property damage “arising out of or in connection with a business engaged in by any insured;” and the second prevented coverage for bodily injury or property damage “arising out of the rental ... of any premises by any insured.” Plaintiffs filed suit against Lipscomb for negligence, wrongful death, breach of building fire codes, breach of contract and implied warranty, and punitive damages. Later, Plaintiffs amended their complaint to include a claim for declaratory judgment against AIC. Lipscomb filed a third-party complaint against his insurance agent, Buddy Oliver, and The Insurance Mart, Inc., for failure to procure insurance coverage that would have protected Lipscomb against the claims asserted by Plaintiffs. The Plaintiffs claim that Oliver bound AIC with statements he made to Lipscomb before and after the fire. Lipscomb denies ever receiving a copy of his policy with AIC prior to the fire. Oliver’s business records show that he mailed a copy of the policy to Lipscomb on November 17, 2005. Oliver further claims that his company, The Insurance Mart, Inc., had procured an estimate for a general liability policy in January of 2006, after Lipscomb had attained his homeowners policy, but that Lipscomb had chosen not to purchase it.

¶ 5. On July 31, 2009, AIC filed a motion for summary judgment denying coverage and a motion to sever the tort claim and the claim for declaratory judgment. The Honorable Winston Kidd denied AIC’s motions. AIC appeals. Because the first issue is dispositive, we decline to address whether the trial court erred in denying AIC’s motion to sever.

DISCUSSION

Motion for summary judgment

¶ 6. This Court reviews a trial court’s grant or denial of a motion for summary judgment under a de novo standard. Pursuant to Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” However, to withstand a motion for summary judgment, the nonmoving party must put forth facts sufficient to show that a genuine issue of material fact exists.

Whether AIC has a duty to defend.

¶ 7. The threshold issue presented in this appeal is whether AIC has a duty to defend Lipscomb. To answer this question, we must look at the facts alleged in the complaint, together with the policy. An insurance company’s duty to defend is not triggered until it has knowledge that a complaint has been filed that contains allegations of conduct covered by the policy. These allegations, and particularly the conduct alleged in the complaint, determine whether an insurer is required to defend an action. No such duty arises when the alleged conduct falls outside the policy’s coverage. But where, through independent investigation, an insurer becomes aware that the true facts, if established, present a claim against the insured which potentially would be covered under the policy, the insurer must provide a defense until it appears that the facts upon which liability is predicated fall outside the policy’s coverage.

¶ 8. Plaintiffs’ complaint included claims against Lipscomb for negligence, breach of building and fire codes, breach of contract and implied warranty, wrongful death, and punitive damages. Plaintiffs also sought a declaratory judgment against AIC.

¶ 9. When AIC learned of Plaintiffs’ claim against Lipscomb, it sent a letter to Lipscomb denying coverage under the following two exclusions:

Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily injury or property damage:
b. Arising out of or in connection with a business engaged in by any insured. This exclusion applies but is not limited to an act or omission, regardless of its nature or circumstances involving a service or duty rendered, promised, owed or implied to be provided because of the nature of the business;
c. Arising out of the rental or holding for rental of any premises by any insured. This exclusion does not apply to the rental or holding for rental of an insured location:
a. on an occasional basis if used only as a residence.
b. in part for use only as a residence, unless a single family unit is intended for use by the occupying family to lodge more than two roomers or boarders; or
c. in part, as an office, school, studio or private garage....

¶ 10. In its investigation, AIC deposed Lipscomb. Lipscomb’s deposition testimony revealed the following: that he had built the apartment building for the purpose of renting it, and that it had been rented since its construction; that he had advertised the apartment for rent by placing an “apartment-for-rent” sign in the front yard of his personal residence; that at the time of the fire, his only source of income was rental income; that he had never received a copy of the policy until after the fire; that Buddy Oliver, his agent, had told him before and after the fire that he was fully covered, and that “this will be taken care of you know;” that Oliver knew that he rented rooms in his home, as well as the apartment building behind his house, and that they had discussed his renting situation at social occasions.

¶ 11. After reviewing the unambiguous language of the policy, the complaint, and the relevant deposition testimony, this Court must come to the conclusion that the conduct alleged in Plaintiffs’ complaint is outside the coverage of the policy. Plaintiffs’ complaint and Lipscomb’s deposition testimony reveal that Lipscomb was operating a business by renting out rooms inside his home, as well as the two rooms in the apartment building behind his home. And it is undisputed that Lipscomb’s sole source of income at the time of the fire was his rental properties. Lipscomb’s policy with AIC clearly precludes coverage when bodily injury or property damage occurs that arises out of or in connection with a business engaged in by the insured, or that arises out of the rental of any premises by the insured that is not an insured location. Since the conduct alleged in the. complaint falls outside the coverage of the policy, AIC has no duty to defend Lipscomb against Plaintiffs’ claims.

CONCLUSION

¶ 12. The terms of the policy expressly preclude coverage when bodily injury or property damage occurs that arises out of or in connection with a business engaged in by the insured, or that arises out of the rental of any premises by the insured that is not an insured location. The record shows that the conduct alleged in the complaint falls outside the coverage of the policy. Accordingly, the trial court erred in denying AIC’s motion for summary judgment, as no genuine issue of material fact exists as to whether AIC must provide coverage. Accordingly, we reverse and remand for entry of an order consistent with this opinion. AIC is dismissed with prejudice.

¶ IS. REVERSED AND REMANDED.

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

KITCHENS, Justice,

dissenting:

¶ 14. I dissent in the instant case because I believe the majority is remiss in its failure to address the argument by Lipscomb that alleged misrepresentations made to him by the insurance agent, Buddy Oliver, created a duty for AIC to provide coverage under the homeowner’s policy. As evidence of this, the plaintiffs cite the deposition of Lipscomb, wherein he attested that his agent, Oliver, had actual knowledge that Lipscomb was renting out the detached, garage apartment where the injured plaintiffs were residing at the time of the fire. Lipscomb contends that, in spite of this knowledge, Oliver assured Lipscomb that his homeowner’s policy would cover the rented portions of the property. Moreover, Lipscomb attested that he never received this policy, and thus, had no actual knowledge that his coverage did not include the rental property. According to Lipscomb, because he detrimentally relied on the agent’s incorrect representations, he did not procure another policy that would have covered the claims of the injured plaintiffs.

¶ 15. Because a genuine issue of material fact remains with respect to whether Lipscomb received his policy, the policy’s contents cannot be imputed to Lipscomb as a matter of law, specifically that the rental property was excluded from coverage under his AIC homeowner’s policy. If Oliver were found to have negligently represented to Lipscomb that his policy covered the rental property, AIC could be liable for Oliver’s actions under a theory of apparent authority. Thus, the trial court committed no error in denying AIC’s motion for summary judgment, as no findings of fact had been made concerning the agent’s representations to the insured, or the lack thereof.

¶ 16. “[I]t is well settled that an insurer is liable for actions of its agents within the scope of the agent’s actual or apparent authority.” Dixie Ins. Co. v. Mooneyhan, 684 So.2d 574, 588 (Miss.1996) (citing Eaton v. Porter, 645 So.2d 1323, 1325 (Miss.1994); Ford v. Lamar Life Ins. Co., 513 So.2d 880, 888 (Miss.1987)). This Court has defined apparent authority as follows:

Apparent authority exists when a reasonably prudent person, having knowledge of the nature and usages of the business involved, would be justified in supposing, based on the character of the duties entrusted to the agent, that the agent has the power he is assumed to have. Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172, 1180 (Miss.1990) (quoting Ford v. Lamar Life Ins. Co., 513 So.2d 880, 888 (Miss.1987)).

Mladineo v. Schmidt, 52 So.3d 1154, 1167 (Miss.2010). To recover under the theory of apparent authority, three factors must be present: “(1) acts or conduct on the part of the principal indicating the agent’s authority, (2) reasonable reliance on those acts, and (3) a detrimental change in position as a result of such reliance.” Id. (quoting Williams, 566 So.2d at 1180; Ford, 513 So.2d at 888).

¶ 17. In Mladineo, the question before this Court was whether the insurer, Nationwide, was bound under a theory of apparent authority by the alleged misrepresentations of its agent. Mladineo, 52 So.3d at 1166. The Court held that Nationwide was not bound by the acts of its agent because “after receipt of the insurance policy, it was not reasonable for the [plaintiffs] to rely on any oral representations by [the agent] which contradicted the terms of that policy.” Id. at 1167. The Court found that the plaintiffs in Mladineo had been in possession of their policy for four months, that the terms of the policy were in direct conflict with the alleged misrepresentations by the insurer’s agent, and that a sufficient amount of time had passed to “recognize and remedy the deficit in coverage.” Id.

¶ 18. Contrary to Mladineo, in the instant case, the plaintiffs have insisted that the insured, Lipscomb, had not received his policy, and, as such, was never made aware that the terms of that policy contradicted the alleged misrepresentations of AIC’s agent. According to the plaintiffs, Lipscomb continued to rely on the misrepresentations of the agent, and such reliance worked to his detriment by dissuading him from obtaining a policy that would have covered damage to the rental propei’ty and/or the damages incurred by his tenants.

¶ 19. Conversely, AIC contends that Lipscomb received a copy of his policy. Moreover, AIC maintains that the evidence, including the testimony of its agent and the activity log that noted the policy was mailed, creates a presumption of delivery to the insured. See Thames v. Smith Ins. Agency, Inc., 710 So.2d 1213, 1216 (Miss.1998) (“There is a presumption that mail deposited, postage prepaid and properly addressed is timely delivered to the person addressed.”). AIC maintains that, where a presumption of delivery exists, Lipscomb’s testimony that he did not receive the policy is insufficient as a matter of law to rebut the presumption.

¶ 20. The issue before the Court in Thames, 710 So.2d at 1214, was not the delivery of an insurance policy, but rather, whether the trial court had erred in failing to grant either a continuance or a new trial, based on plaintiffs claim of lack of notice of a pretrial conference and trial. The evidence showed that the circuit clerk’s office had mailed the notices to plaintiffs counsel at an address that was correct except for an erroneous ZIP code. Id. at 1215. Clearly, Thames did not address an insurer’s duty to provide a copy of the policy to an insured and the means by which the insurer may prove receipt of that policy.

¶ 21. This Court has never recognized that the testimony of the insurer’s employee, coupled with the insurance company’s own internal document, i.e., an activity log, creates a presumption of delivery of the insured’s policy. This Court has addressed proof of delivery of a notice of cancellation of a policy and, in doing so, has recognized a presumption of delivery of notice where an insurer has proof of a certificate of mailing from the post office. See State Farm Ins. Co. v. Gay 526 So.2d 534, 537 (Miss.1988) (“[T]he Supreme Court of Mississippi has held that the agent’s testimony that the letter was mailed and a post office certificate are adequate proof of notice.”) (citation omitted); Employers Mut. Cas. Co. v. Nosser, 250 Miss. 542, 592, 168 So.2d 119, 120 (Miss.1964) (“To say that the mere testimony of the addressee that he did not receive the notice created a permissible inference that the letter was never mailed, would require us to disregard not only the explanatory testimony of the insurer’s clerk, but the unimpeached, uncontradict-ed, written official acknowledgment of the post office that it received this letter for transmission by mail to the addressee at his correct address.”). These cases are consistent with the statute pertaining to proof of notice of cancellation of an automobile policy. See Miss.Code Ann. § 83-11-9 (Rev.2011) (“Proof of mailing of notice of cancellation, or of intention not to renew, or of reasons for cancellation to the named insured by a certificate of mailing, at the address shown in the policy, shall be sufficient proof of notice.”). Given that there is no certificate of mailing in the instant case, a presumption of delivery of the policy is not present.

¶ 22. Since there is testimonial evidence that Lipscomb never received his policy and that, because of this, he never had opportunity to learn that the terms of his policy contradicted the alleged misrepresentations of the insurance agent, these factual issues must be resolved before a determination can be made of whether AIC is bound by the actions of its agent, Buddy Oliver. Accordingly, summary judgment was improper in this case. I would affirm the trial court’s denial of AIC’s motion for summary judgment.

      . Approximately eight months passed between the time Lipscomb purchased the homeowners policy and the fire.

      . Price v. Clark, 21 So.3d 509, 517 (Miss.2009) (citing Arceo v. Tolliver, 949 So.2d 691, 694 (Miss.2006) (citation omitted)).

      . Newell v. Hinton, 556 So.2d 1037, 1041 (Miss.1990) (citations omitted).

      . Baker Donelson Bearman & Caldwell, P.C. v. Muirhead, 920 So.2d 440, 450 (Miss.2006).

      . Id. at 451.

      . See Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So.2d 400, 403 (Miss.1997).

      . See Farmland Mut. Ins. Co. v. Scruggs, 886 So.2d 714, 719 (Miss.2004); Delta Pride Catfish, Inc., 697 So.2d at 403; and Moeller v. Am. Guar. & Liab. Ins. Co., 707 So.2d 1062, 1069 (Miss.1996).

      . See Mavar Shrimp & Oyster Co., Ltd. v. U.S. Fid. & Guar. Co., 187 So.2d 871, 875 (Miss.1966).

      . The policy indicates that the only property insured by the policy was 723 Euclid Avenue, Jackson, Mississippi, 39202. This property was Lipscomb's personal residence. The apartment building had its own separate address: 723½ Euclid Avenue, Jackson, Mississippi, 39202.

      . See Scruggs, 886 So.2d at 719; Delta Pride Catfish, Inc., 697 So.2d at 403; and Moeller, 707 So.2d at 1069.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Sherry WILTSHIRE, Appellant v. MISSISSIPPI FAIRGROUNDS COMMISSION, Appellee.
    No. 2009-CA-01797-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.
    Rehearing Denied Aug. 16, 2011.
    Certiorari Denied Nov. 17, 2011.

      Joseph E. Roberts Jr., Jackson, attorney for appellant.
    Mark D. Morrison, Ridgeland, attorney for appellee.
   BARNES, J.,

for the Court:

¶ 1. Sherry Wiltshire appeals the judgment of the Circuit Court of Hinds County, which granted summary judgment in favor of the Mississippi Fairgrounds Commission (MFC), thereby dismissing with prejudice Wiltshire’s claims against the MFC under the Mississippi Tort Claims Act (MTCA). Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On February 5, 2002, Wiltshire arrived at the Dixie National Livestock Show at the Mississippi State Fairgrounds in Jackson, Mississippi, at approximately 4:00 p.m. to visit her son, Josh, who was a member of the Smith County 4-H club and was participating in the Mississippi Junior Round-Up. Approximately thirty minutes after Wiltshire’s arrival at the fairgrounds, in the main aisle of one of the livestock barns, a large domestic cow named Nola trampled Wiltshire to the ground. The incident resulted in severe injuries to Wilt-shire’s leg. It is undisputed that the cow got loose from a teenage boy, Micah Dingier, who was leading the cow to get some water in the same general vicinity where Wiltshire was walking. Dingier testified he was dragged several yards by Nola before he had to let go of her halter; Nola then hit Wiltshire from behind. Dingier did not witness the actual accident. Apparently, Nola became “spooked” and charged Wiltshire, but neither Dingier nor Wiltshire could say for certain why. Wilt-shire argues Nola became spooked because the aisle of the barn was allowed to be cluttered with show boxes, fans, lawn chairs, and other items, and that Dingier was “inexperienced” in leading the cow. Dingier also admitted dogs were running unleashed in the barn, but he did not see any dogs chasing Nola or any other cows at the time.

¶ 8. In May 2003, Wiltshire initially filed suit against the State of Mississippi, the Board of Trustees of State Institutions of Higher Learning (IHL), MFC, and Defendants A-Z, seeking compensation for her injuries under premises liability. Ultimately, several other defendants were added to the suit. Upon completion of discovery, MFC and the State of Mississippi filed a motion to dismiss or, in the alternative, a motion for summary judgment, arguing in part that they were immune from liability under the MTCA’s discretionary-function exemption of Mississippi Code Annotated section 11^46-9(l)(d) (Supp.2010). The trial court found that the first prong of the two-part test to determine whether governmental conduct is discretionary was satisfied: it was undisputed that the activity involved an element of choice or judgment. However, the trial court stated that no evidence had been presented, by affidavit or otherwise, regarding the second public-policy prong of the test: whether the choice or judgment exercised by the governmental entity involved social, economic, or political policy. Thus, the trial court concluded the motions were “premature” on the grounds of governmental immunity and denied them.

¶ 4. In response to this ruling, approximately seven weeks later, IHL renewed its motion for summary judgment, and co-defendant MFC joined. The motion provided the trial court with new “public policy” evidence in the form of an affidavit by Dr. Susan Holder, the State Program Leader for 4-H Youth Development through the Mississippi State University Extension Services. In November 2006, the trial court granted summary judgment to MFC and IHL, finding them immune under the MTCA’s discretionary-function exception. In January 2009, the trial court entered a final judgment of dismissal with prejudice regarding the action’s other pending claims and all other defendants. Wiltshire timely appealed, naming MFC as the sole appellee. She raises two issues: whether the trial court erred in considering MFC’s renewed motion for summary-judgment and in granting summary judgment to MFC because it is immune from liability under the MTCA.

DISCUSSION OF THE ISSUES

I. The Propriety of MFC’s Renewed Motion for Summary Judgment

¶ 5. Wiltshire first argues that the trial court improperly considered MFC’s renewed motion for summary judgment. She claims this issue is controlled by Mississippi Rule of Civil Procedure 59(e) and that the arguments in the renewed motion “were a mere rehash” of the original motion, with the addition of the affidavit of Dr. Holder. Wiltshire maintains that the evidence in the affidavit was available when the original motion was filed; thus, the trial court abused its discretion in considering the renewed motion.

¶ 6. Wiltshire is incorrect that Rule 59(e) controls the trial court’s consideration of MFC’s renewed motion for summary judgment. Rule 59(e) deals with motions to alter or amend a judgment, and “authorizes the trial judge to set aside a jury verdict as to any or all parts of the issues tried and to grant a new trial as justice requires.” M.R.C.P. 59 cmt. Wiltshire is correct that a motion to set aside or reconsider an order granting summary judgment will be treated as a motion under Rule 59(e). However, that is not the situation here, as there had been no judgment granted when the trial court considered the renewed motion. Here, the trial court denied the initial motion for summary judgment; the litigation continued without judgment or trial; and a renewed motion for summary judgment was filed. Wilt-shire fails to cite any law which supports her proposition that it is improper for a trial court to examine a party’s renewed motion for summary judgment prior to trial. Moreover, we know of none.

¶ 7. We also note that in denying MFC’s and IHL’s initial motion for summary judgment, the trial court found the motion “premature” on the ground of governmental immunity because the record did not contain any evidence that MFC and IHL were engaged in any policy-oriented, decision-making process concerning the alleged failures cited by Wiltshire. Accordingly, MFC renewed its motion in an attempt to cure this deficiency by submitting Dr. Holder’s affidavit procured by IHL’s counsel. We find no error in this regard.

II. The Granting of MFC’s Renewed Motion for Summary Judgment

¶ 8. Next, Wiltshire argues that even if it was not error for the trial court to consider the renewed motion for summary judgment, the trial court erred in granting summary judgment in favor of MFC based upon the discretionary-function exception of Mississippi Code Annotated section 11 — 46—9(l)(d) (Supp.2010) and that there remained a genuine issue of material fact regarding immunity for a dangerous condition on government property under Mississippi Code Annotated section ll-46-9(l)(v) (Supp.2010).

¶ 9. This Court analyzes the trial court’s grant or denial of summary judgment, as well as the application of the MTCA, de novo. Price v. Clark, 21 So.3d 509, 517 (¶ 10) (Miss.2009). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). The movant bears the burden of proving that no genuine issue of material fact exists and the non-movant “should be given the benefit of every reasonable doubt.” Moss v. Batesville Casket Co., 935 So.2d 393, 399 (¶ 16) (Miss.2006).

¶10. Section ll-46-9(l)(d) states that “[a] governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... [b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused....” In order to determine whether the governmental conduct is immune under the discretionary-function exception, the two-part public-policy-function test is employed. Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260 (¶ 11) (Miss.1999) (overruled on other grounds) (citing United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). “In discerning whether a function is afforded immunity under the discretionary exception, it must first be determined whether the activity involved ‘an element of choice or judgment.’ If so, it must then be determined ‘whether the choice involved social, economic or political policy.’ ” Id. at (¶ 10). “[0]nly those functions which by nature are policy decisions, whether made at the operational or planning level, are protected. ‘[T]he purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.’ ” Id.

¶ 11. While Wiltshire concedes that the first prong of the discretionary-function test is met — that MFC’s conduct involved an element of choice or judgment — she disagrees with the trial court’s determination on the public-policy-function test’s second prong. The trial court explained that it had previously denied summary judgment because MFC and IHL had failed to bring forward any evidence that they had engaged in any policy-oriented, decision-making process regarding Wiltshire’s claims. However, since that ruling, the Defendants’ submission of the affidavit of Dr. Holder provided such evidence; thus, the second prong was satisfied as well.

¶ 12. In her affidavit, Dr. Holder, explained the history of the 4-H program, “which is the youth component of the Mississippi State University (MSU) Extension Service, with academic ties to MSU.” Additionally, she explained 4-H’s structure, programs, and “mission objectives,” which are “to assist youth in acquiring knowledge, developing life skills, and forming attitudes that will enable them to become self-directing, productive, and contributing members of society.” She stated that through the use of live animals, the junior livestock programs help youth achieve these 4-H objectives, thereby serving “to promote important social, political and economic objectives.” She concluded that 4-H and the MSU Extension Service’s participation in the Mississippi Junior RoundUp as part of the Dixie National Livestock Show at the State Fair Grounds in Jackson furthered these long-standing public policies.

¶ 13. We find no error in the trial court’s determination that the public-policy prong of the test is satisfied by Dr. Holder’s affidavit; thus, MFC is immune under the discretionary-function exception, and summary judgment in favor of MFC is appropriate. We agree that MFC has offered sufficient evidence on the public-policy implications for its conduct in hosting livestock shows; the most important implication is the 4-H programs’ usefulness in developing a young person’s life skills.

¶ 14. Wiltshire counters that Dr. Holder’s affidavit does not offer any insight into how the actions by MFC of allowing dogs to run free, observers to be in proximity with livestock, cluttered and narrow barn aisles, and inexperienced participants handling dangerous animals are grounded in public policy. She claims that in allowing these actions, the organizers of the livestock show caused her injuries; moreover, the trial court did not analyze if these actions were susceptible to public-policy analysis. Wiltshire maintains these actions were mere acts of negligence by a governmental entity; thus, MFC is not immune.

¶ 15. In analyzing the public-policy prong, this Court has stated that “proof of the thought processes of pertinent deci-sionmakers” is not needed; “[rjather, the focus is on the nature of the actions taken, and whether they are susceptible to policy analysis.” Dotts v. Pat Harrison Waterway Dist., 938 So.2d 322, 328 (¶ 16) (Miss.Ct.App.2006). But the “actions taken” that Wiltshire claims are at issue are actually her own speculation as to what caused the accident, instead of MFC’s manner of hosting livestock shows at its venue. We agree with the trial court that any decisions by MFC on how it should host these events at its venue are susceptible to a public-policy analysis. As MFC itself notes, the Legislature has stated the MFC was created “[i]n order to promote agricultural and industrial development in Mississippi and to encourage the farmers to grow better livestock and agricultural products.... ” Miss.Code Ann. § 69-5-1 (1972 and Rev.2005). The MFC’s hosting of events like the livestock shows and the Mississippi Junior Round-Up facilitate these endeavors, creating “numerous economic and personal benefits” for the state and its citizens. See Miss.Code Ann. § 95-11-1 (Rev.2004). Further, there are no legislative mandates as to how MFC should host the livestock shows. MFC’s hosting of the Junior Round-Up serves important social, economic and political policy; thus, the public-policy prong of the discretionary-function test is met.

¶ 16. Finally, Wiltshire argues that there is a genuine issue of fact regarding MFC’s immunity under subsection ll-46-9(l)(v). Under this statute, a governmental entity will be immune from liability for a claim:

[ajrising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care....

Miss.Code Ann. § ll-46-9(l)(v) (Supp. 2010). Wiltshire claims that MFC had constructive knowledge of the dangerous conditions existing at the State Fairgrounds, and it permitted the barn aisles to be cluttered and dogs to run loose, thereby potentially exciting the livestock and creating a dangerous situation.

¶ 17. We note that the numerous provisions of the MTCA which provide immunity in subsections 11 — 46—9(l)(a) through (x) are written in the disjunctive, with (w), the next to last subsection, followed by an “or” followed by the last subsection (x). The Mississippi Supreme Court has explained that the “Applicability of any one of these sections creates immunity.” Pearl River Valley Water Supply Dist. v. Bridges, 878 So.2d 1013, 1016 (¶ 12) (Miss.Ct.App.2004) (citing State v. Hinds County Bd. of Supervisors, 635 So.2d 839, 842 (Miss.1994)). Thus, since the trial court properly found no genuine issue of material fact regarding immunity under 11 — 46—9(l)(d), a genuine issue of material fact on another subsection cannot defeat summary judgment for MFC. Therefore, this argument is without merit.

¶ 18. In conclusion, we find no error in the trial court’s grant of summary judgment in favor of MFC.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Later, Wiltshire filed a motion to amend her complaint, which was granted, to include as defendants Dingier; his mother, Charlene May; his step-father, Philip May; and the cow’s owners, Debbie Alexander (who is Charlene’s sister) and Mike Alexander.

      . IHL filed a separate motion to dismiss or, in the alternative, motion for summary judgment.

      . Wiltshire did not name IHL in her notice of appeal. Approximately one and one-half years later, IHL filed a motion to dismiss the appeal for lack of jurisdiction because it was never served with a notice of the appeal, and the thirty-day deadline under Mississippi Rule of Appellate Procedure 4(a) had long passed. This Court granted IHL’s motion.

      . Section 95-11-1 states:
      The Legislature recognizes that persons who participate in livestock shows or equine activities may incur injuries as a result of the risks involved in such activities. The Legislature also finds that the state and its citizens derive numerous economic and personal benefits from such activities. The Legislature finds, determines and declares that this chapter is necessary for the immediate preservation of the public peace, health and safety. It is, therefore, the intent of the Legislature to encourage livestock shows and equine activities by limiting the civil liability of those involved in such activities.


author: ROBERTS, J.,

text:
    Charles DAVIS Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01758-COA.
    Court of Appeals of Mississippi.
    April 26, 2011.
    Rehearing Denied Sept. 13, 2011.
    Certiorari Denied Dec. 8, 2011.

      George T. Holmes, Jackson, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. Charles Davis Jr. was indicted by a Claiborne County grand jury on one count of robbery. At trial, the jury found Davis guilty, and he was sentenced by the Claiborne County Circuit Court to ten years in the custody of the Mississippi Department of Corrections (MDOC). Feeling aggrieved, Davis now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the night of June 23, 2009, sixteen-year-old Joel Alexander was driving to find his friends that were still at work in a local watermelon field. Alexander testified that on his way to the watermelon field, he was flagged down by a black man. Alexander stopped his truck, and the man approached the open passenger window. This man, later identified as Davis, asked Alexander for . a ride. Alexander declined giving Davis a ride. Alexander testified that Davis then reached into Alexander’s window and grabbed the 270 Winchester rifle leaning against the passenger seat. Davis grabbed the rifle by the stock. Alexander grabbed the rifle by the barrel. The men tussled over the rifle until Alexander let go of the barrel after Davis made physical threats of harm. Alexander testified that he let go of the rifle because he knew there was one bullet in the rifle and “if [Davis] pulled the trigger, he could [have] kill[ed] me.”

¶ 3. On June 24, 2009, Port Gibson Investigator Terrance Watson received a phone call from Jo’Pravious Hyder asking if he was looking for a stolen 270 rifle. Hyder testified that Davis’s children showed him the rifle. He further testified that he called Investigator Watson about the rifle because he knew that if Davis’s children had it, then it was stolen. Hyder brought the rifle to Investigator Watson on June 25, 2009. Investigator Watson then contacted Alexander and had him come to identify the rifle.

¶ 4. Alexander went to the police station on June 25, 2009, to give a statement describing the events of June 23, 2009. He confirmed that the rifle was in fact his since his name was carved in it. Alexander completed his statement and was then shown a photographic line-up consisting of six different pictures. He identified Davis out of the line-up as the man that had taken his rifle.

¶ 5. During the May term of court in 2009, the Claiborne County Grand Jury indicted Davis on one count of robbery in violation of Mississippi Code Annotated section 97-3-73 (Rev.2006). At trial, a twelve-person jury found Davis guilty of robbery. The circuit judge sentenced him to ten years in the custody of the MDOC.

¶ 6. Feeling aggrieved, Davis appeals raising the following issues, which we state verbatim:

I. Whether the evidence proved the commission of a robbery as [o]p-posed to larceny.
II. Whether the verdict is supported by the weight of the evidence.

Finding no error, we affirm.

STANDARD OF REVIEW

¶ 7. When the circuit judge is presented with a motion for a directed verdict, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Tipton v. State, 41 So.3d 679, 680 (¶ 4) (Miss.2010) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). On appellate review, the review of a circuit judge’s denial of a motion for directed verdict requires the evidence to be viewed in the light most favorable to the prosecution. Id. (¶ 5). “If the facts and inferences ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,’ this Court must reverse and render.” Id. (quoting Bush, 895 So.2d at 843 (¶ 16)).

DISCUSSION

I. EVIDENCE INSUFFICIENT TO PROVE ROBBERY

¶ 8. Davis first raises the issue that the State failed to prove all the necessary elements of robbery; thus, the circuit judge erred in denying his motion for a directed verdict. Davis was convicted of robbery under Mississippi Code Annotated section 97-3-73 which reads: “Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.” He argues that the State failed to prove that the taking of the rifle was effectuated through the use of violence or fear which is an element of robbery, and without proof of that element, he could only be found guilty of larceny.

¶ 9. Davis relies on Clayton v. State, 759 So.2d 1169, 1174 (¶ 16) (Miss.1999), to support his argument that the State failed to prove an element of robbery. In that case, Thomas Clayton was convicted of robbery for stealing the purse from a woman that he approached from behind. Id. at 1170 (¶¶ 2-4). He appealed, and the Mississippi Supreme Court reversed the conviction finding that State did not prove every element of the crime of robbery. Id. at 1174 (¶ 17). The Clayton case is unique in that although the State proved that Clayton had taken the victim’s purse through violence, it failed to prove that the taking occurred by placing the victim in fear of immediate injury. Id. at 1172 (¶ 8). Generally proof of either element would be sufficient, but Clayton’s indictment did not allege that the taking occurred by violence, only that the taking occurred by placing the victim in fear of immediate injury. Id. at 1171 (¶ 7). The supreme court found that the since the State failed to prove the taking occurred by placing the victim in fear of immediate injury as alleged in the indictment, then the State also failed to “prove each element of the offense charged in the indictment beyond a reasonable doubt[,]” as required by due process. Id. at 1173 (¶¶ 12-13). The supreme court ultimately reversed Clayton’s conviction and remanded the case for sentencing on the lesser-included charge of grand larceny. Id. at 1174 (¶ 17).

¶ 10. In the current case, Davis’s indictment only alleges that he took the property “by violence to the person of the said Joel Alexander[.]” However, unlike the Clayton case, the State did prove all the elements of the offense charged in Davis’s indictment. It is well-settled case law that:

When the victim is aware that someone is attempting to take property from their person and does not indicate any consent to the taking, the crime of pickpocketing or larceny is elevated to robbery because violence or the threat of violence, even though slight, was a factor in the taking.

Cabrere v. State, 920 So.2d 1062, 1065 (¶ 16) (Miss.Ct.App.2006) (quoting Chaney v. State, 739 So.2d 416, 418 (¶ 8) (Miss.Ct.App.1999)).

¶ 11. To prove the taking was done through violence requires proof of some use of force, no matter how slight. Shelton v. State, 728 So.2d 105, 112 (¶ 27) (Miss.Ct.App.1998). It is undisputed that Alexander was aware that Davis was attempting to take the rifle and did not consent to his taking it. The two tussled over the rifle until Alexander let go of his end in fear of being shot. This evidence is sufficient to prove that the taking was effectuated through violence.

¶ 12. We find this issue without merit.

II. WEIGHT OF THE EVIDENCE

¶ 13. Davis next asserts that the verdict is not supported by the weight of the evidence. This argument is, in essence, a motion for a new trial. The supreme court has held that: “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18).

¶ 14. Although Davis raises this issue in his brief, he failed to file a motion for a new trial at the trial level. In Hughey v. State, 729 So.2d 828, 830 (¶6) (Miss.Ct.App.1998), this Court held that the failure to file a motion for a new trial bars raising this issue on appeal. There are certain errors that must be raised in front of the circuit judge in a motion for a new trial, including challenges to the weight of the evidence. Jackson v. State, 423 So.2d 129, 132 (Miss.1982). The record before us is devoid of any motion for a new trial; thus, we can only conclude that one was not filed. Therefore, we find Davis is procedurally barred from raising this issue.

¶ 15. THE JUDGMENT OF THE CLAIBORNE COUNTY CIRCUIT COURT OF CONVICTION OF ROBBERY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAIBORNE COUNTY.

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


author: LEE, C.J.,

text:
    Mark Kee BROWN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00248-COA.
    Court of Appeals of Mississippi.
    June 7, 2011.
    Rehearing Denied Sept. 27, 2011.
    Certiorari Denied Dec. 8, 2011.

      Lisa D. Collums, Leslie S. Lee, Jackson, Hunter Nolan Aikens, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   PROCEDURAL HISTORY

LEE, C.J.,

for the Court:

¶ 1. Mark Kee Brown was found guilty in the Harrison County Circuit Court of the capital murder of Larry Darnell Turner and sentenced to life in the custody of the Mississippi Department of Corrections.

¶ 2. Brown now appeals his conviction, raising the following issues: (1) the trial court failed to strike a biased juror; (2) the trial court failed to grant a mistrial when the State commented on his post-Miranda silence; and (3) the trial court erred by admitting jury instruction four, aiding and abetting. Finding no reversible error, we affirm the judgment of the trial court.

FACTS

¶ 3. In 2005, Tavaris Turner’s uncle, Larry Turner, gave him approximately $10,000 cash to hold to buy a car. Tavaris told Steven Fairley about the car and showed him the cash at work one day to prove he was serious. Fairley testified that Tavaris told him it was approximately $22,000, but Fairley was not sure of this amount. Fairley told Jason Foxworth that he planned to rob Tavaris because Tavaris was carrying a large sum of cash.

¶4. Fairley testified that on July 6, 2005, he met Foxworth, Brown, and another unnamed individual at a restaurant in Gulfport, Mississippi. Fairley drove toward Tavaris’s house, and Foxworth, Brown, and the unnamed person followed. Tavaris lived with his uncle, Larry; his cousin, Lenny Jackson; and a friend, Michael Williams. Fairley stopped and called Tavaris from a gas station. He asked if he could come by his house with a friend to look at Tavaris’s car. Tavaris said no. Fairley called again and went to Tavaris’s house anyway. Tavaris and Fairley sat on the couch talking and watching television. After a few minutes, Foxworth came in holding a gun and told everyone to get on the ground. Brown followed with a gun. Tavaris testified that Brown kept him and Jackson in the living room, and Foxworth went to the back of the house to get Larry. Tavaris testified that Foxworth and Brown started demanding money. Tavaris gave the money to Brown and then heard a gunshot. Larry was shot in the back of his neck and subsequently died.

¶ 5. Tavaris and Fairley testified that neither saw who had fired the gun. Ta-varis thought it was Foxworth who had shot Larry, but he did not actually see him shoot the gun. Tavaris testified that he heard Foxworth say, “now you see we’re not playing with you.” Fairley testified that he heard Brown say, “I told you I wasn’t playing.”

DISCUSSION

I. JUROR MISCONDUCT

¶ 6. On the final day of trial, one of the jurors sent a note to the trial court that stated:

To Judge Larry Bourgeois

Sometime after 10:00 a.m. [yesterday], one juror number 10 ... stated to the entire jury panel that she had contacted a friend on Tuesday night who had served as a juror on the trial of Mr. Foxworth to find out what the verdict was in that trial. She did not tell us what she learned. When she said this the entire room went silent. I did not say anything yesterday because I was not sure what to do. After thinking about it all night, I realized I needed to tell you about it.

The note was signed by the juror. Brown’s counsel moved for a mistrial. The trial judge questioned each juror individually. Juror number ten denied she had said anything about Foxworth to the jury. One juror thought he heard juror number ten say Foxworth had been found guilty. The remaining jurors denied any knowledge of the conversation.

¶ 7. The trial judge denied Brown’s motion for a mistrial, but the judge struck juror number ten and the juror who thought he heard juror number ten say that Foxworth was found guilty. The two jurors were replaced with the alternate jurors. The juror who had written the note was not stricken. Brown argues that replacing the jurors was inadequate because the entire jury was already tainted.

¶ 8. In Gladney v. Clarksdale Beverage Co., 625 So.2d 407, 418-19 (Miss.1993), the Mississippi Supreme Court stated:

Once an allegation of juror misconduct arises, then the next step is to consider whether an investigation is warranted. In order for the duty to investigate to arise, the party contending there is misconduct must make an adequate showing to overcome the presumption in this state of jury impartiality.... At the very minimum, it must be shown that there is sufficient evidence to conclude that good cause exists to believe that there was in fact an improper outside influence or extraneous prejudicial information.

“The Uniform Rules of Circuit and County Court Practice, Rule 3.12 allows the judge to declare a mistrial only when the harm done would render the defendant without hope of receiving a fair trial.” Reed v. State, 764 So.2d 511, 513 (¶ 7) (Miss.Ct.App.2000).

¶ 9. Once the trial judge became aware of the potential juror misconduct, the trial judge investigated the matter by polling each juror individually. The two jurors involved were stricken and replaced with the alternate jurors. The judge found the other jurors were not exposed to outside information and that the juror who had written the note could remain impartial. We find that the trial judge followed the guidelines of Gladney. This issue is without merit.

II. RIGHT TO REMAIN SILENT

¶ 10. Brown takes issue with the following exchange that took place during cross-examination:

Q. ... You were arrested the night of the day after — the morning after this happened for capital murder, correct?
A. Yes, sir, I was.
Q. And of course you immediately told the police where you’d been and gave them all that alibi information?

Brown’s counsel objected before Brown could answer. The trial judge overruled the objection. The trial judge found that the question did not ask whether Brown chose to exercise his right to remain silent pursuant to Miranda v. Arizona, 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122 (1969), but whether Brown had given an alibi. The prosecutor continued:

Q. Let me put it to you this way, Mr. Brown. Did you tell the police that day or that night that you had been with your girlfriend or at your girlfriend’s house all night?
A. They didn’t ask me that, sir.
Q. I’m asking you, did you tell them?
A. No, sir.

¶ 11. It is well settled that “[a] defendant has the right to remain silent following arrest, and not have that silence used against him.... ” Carr v. State, 655 So.2d 824, 845 (Miss.1995). “The test to determine whether reversal is required as a result of a prosecutor’s improper comment at trial ‘is whether or not the natural and probable effect of the statement is to create an unjust prejudice against the accused so as to result in a decision influenced by prejudice.’” Hurt v. State, 34 So.3d 1191, 1195-96 (¶ 12) (Miss.Ct.App.2009) (quoting Jackson v. State, 924 So.2d 531, 542 (¶ 36) (Miss.Ct.App.2005)).

¶ 12. Brown’s defense was that he was at his girlfriend’s house at the time of the murder baby-sitting several children while she was at work. He argues that he could not have been at the scene of the murder because he had recently been released from prison, and he did not have a driver’s license or a car. He testified on direct examination as to his alibi.

¶ 13. In McGrone v. State, 807 So.2d 1232 (Miss.2002), the Mississippi Supreme Court addressed the issue of cross-examination of a defendant with respect to post-arrest, pre-Miranda silence. Timothy McGrone was cross-examined on whether he had given an alibi to law enforcement. Id. at 1233 (¶ 3). An objection was raised, but it was overruled. Id. McGrone answered that he had not spoken to anyone in law enforcement about the case. Id. The supreme court considered whether a defendant could “be impeached at trial on his failure to provide, at some time after his arrest, his version of the events leading up to his arrest.” Id. at 1232 (¶ 1). The supreme court found that “McGrone’s due[-]process rights were not violated by the State’s cross-examination concerning his post-arrest silence.” Id. at 1235 (¶ 11). In reaching its decision, the supreme court cited Fletcher v. Weir, 455 U.S. 603, 606-07, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), stating:

In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to post-arrest silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which post[-]arrest silence may be deemed to impeach a criminal defendant’s own testimony.

McGrone, 807 So.2d at 1285 (¶ 10).

¶ 14. The record is unclear in this case when Brown was read his Miranda rights. However, we find that any questions regarding Brown’s post-arrest, pre-Miranda silence did not violate Brown’s due-process rights. As far as Brown’s silence after he was given the Miranda warning, we cannot find that an unjust prejudice was created. The questioning was not used as substantive proof of Brown’s guilt, and it was not revisited in the closing argument. We find this issue is without merit.

III. AIDING AND ABETTING

¶ 15. Brown argues that the trial court improperly granted jury instruction four on aiding and abetting. It reads as follows:

The Court instructs the jury that each person present at the time, and consenting to and encouraging the commission of a crime, and knowingly, willfully, and feloniously, doing any act which is an element of the crime or immediately connected with it, or leading to its commission, is as much a principal as if he had with his own hand committed the whole offense; and if you believe from the evidence beyond a reasonable doubt that the defendant, MARK KEE BROWN, did willfully, unlawfully and feloniously do any act which is an element of the crime with which he is charged or immediately connected with it or leading to its commission, then and in that event, you should find the defendant guilty of that crime as the case may be.

(Emphasis added).

¶ 16. No objection was made at trial to this jury instruction; thus, Brown asks that it be reviewed on appeal for plain error. “To determine if plain error has occurred, this Court must determine if the trial court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial.” Cox v. State, 793 So.2d 591, 597 (¶22) (Miss.2001). Brown argues that this instruction was plain error because it allowed the jury to find him guilty if he committed “any act which is an element of the crime....” He asserts that this language is similar to the language condemned by Berry v. State, 728 So.2d 568, 571 (¶ 9) (Miss.1999).

¶ 17. In Berry, Merlinda Berry was found guilty of the transfer of cocaine. Id. at 570 (¶ 2). On appeal, Berry argued that the jury was improperly instructed on aiding and abetting. Id. at 571 (¶ 5). No objection was made to the instruction at trial. Id. at 571 (¶ 6). Upon a plain-error review, the Mississippi Supreme Court agreed with Berry and reversed. Id. at 571 (¶ 9). The offending jury instruction read:

The Court instructs the jury that each person present at the time, and consenting to and encouraging the commission of a crime, and knowingly, willfully and feloniously doing any act which is an dement of the crime, or immediately connected with it, or leading to its commission, is a principal.
One who aids, assists and encourages a transfer of cocaine is a principal and not an accessory, and his guilt in nowise depends upon the guilt or innocence, the conviction or acquittal of any other alleged participant in the crime. Therefore if you believe from the evidence, beyond a reasonable doubt, that Merlin-da Berry did willfully, unlawfully and feloniously do any act which is an element of the crime of transfer of cocaine, as defined by the Court’s instructions, or immediately connected with it, or leading to its commission, then and in that event, you should find Merlinda Berry guilty of transfer of cocaine as charged in the indictment.

Id. at 570 (¶ 4) (emphasis added). The supreme court found that this instruction “appears to give the jury an additional option of finding the defendant guilty if she committed only one element of the crime without even finding that the crime was ever completed.” Id. at 571 (¶ 9). The supreme court also found that reading the jury instructions as a whole did not cure the defect. Id.

¶ 18. In reaching its decision in Berry, the supreme court cited to Hornburger v. State, 650 So.2d 510 (Miss.1995). The jury in Homburger was given a similar aiding and abetting instruction. Id. at 514. The jury was instructed to return a guilty verdict if it found the defendant committed “any act which is an element of the crime of burglary of a building....” Id. However, the jury was also instructed to return a verdict of not guilty if the State failed to prove any element of the crime beyond a reasonable doubt. Id. at 515. The supreme court found that although the jury was improperly instructed on aiding and abetting, “when read together, these instructions adequately informed the jury of the law making the improper instruction a harmless error.” Id.

¶ 19. We find Brown’s ease analogous to Homburger. The jury was instructed on the elements of capital murder in jury instruction two. The last paragraph of jury instruction two states: “If the prosecution has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find MARK KEE BROWN not guilty of Capital Murder.” While jury instruction four could have misled the jury, we find that any confusion caused was cured by reading the instructions as a whole. Thus, any error was harmless. This issue is without merit.

¶ 20. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


text:
    Larry EVANS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00951-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.
    Rehearing Denied Sept. 6, 2011.
    Certiorari Denied Dec. 8, 2011.

      Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Larry Evans was convicted of robbery by a jury in the Jones County Circuit Court. The circuit court sentenced Evans to serve fifteen years in the custody of the Mississippi Department of Corrections. Evans appeals, contending that the verdict is against the overwhelming weight of the evidence. We affirm.

FACTS

¶ 2. At approximately 9:30 a.m. on April 25, 2008, a man appeared at the Magnolia State Bank in Laurel, Mississippi. He was wearing several layers of clothing, a wig, two hats, and large sunglasses. The man carried a bag and a note, which he gave to the teller. The note stated that the man had a bomb and that the teller should fill the bag with money within fifteen seconds, or he would detonate the bomb. The teller did as instructed, more or less, and the man left without incident. A bank employee recorded the license plate number of the robber’s vehicle as he fled. Evans was eventually tied to the crime through the vehicle and other evidence, which we shall discuss in due course.

DISCUSSION

¶ 3. Evans contends that the jury’s verdict is against the overwhelming weight of the evidence. The Mississippi Supreme Court has detailed how an appellate court should review the weight of the evidence supporting a jury’s verdict, stating:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.... However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather ... [the reviewing] court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (internal citations and quotations omitted). The supreme court also cautioned that a challenge to the weight of the evidence “is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)).

¶ 4. Our analysis begins with a review of the evidence against Evans. Constance Maracha, who described herself as a friend of Evans, testified that on the morning of the robbery, she loaned Evans the vehicle used in the robbery. It was recovered less than one-half mile away from the bank, apparently abandoned by the robber after he had opened the bag to find several thousand dollars and a dye pack, an anti-theft device. The dye pack exploded, destroying the stolen money and staining the robber, his clothes, and the inside of the vehicle with bright red dye. The dye was described as also causing irritation to the skin and eyes with an effect comparable to pepper spray.

¶ 5. Maracha testified that when Evans returned to her home later that day, he was covered in red dye and asked to take a shower. Evans then told Maracha to tell her sister, the owner the vehicle, to report it as stolen. Evans and Maracha then went to speak with an attorney. On the way, Evans told Maracha that he had robbed a bank and that the police were after him. The attorney told Evans to turn himself in, which he did. Maracha accompanied Evans, and she gave a statement to the police a short time later.

¶ 6. Evans was also identified as the robber by Andrew Brown, a bank employee whose duties included security. After the robber entered the bank, Brown found his appearance suspicious, so he approached the robber, exchanged pleasantries, and took a good look at the man. Brown explained that he had been trained to identify facial features, focusing on the part of the face that was visible. Brown described the robber’s visible features as “distinctive.” Brown picked Evans out of a photographic lineup shortly after the robbery, and he made an in-court identification of Evans as the robber.

¶ 7. Brown also authenticated a digital photograph taken during the robbery by a bank security camera. The camera appears to have been positioned a few feet behind the teller, over her shoulder. It was focused on where a customer being served by the teller would stand. The photograph shows the robber from the waist up, and the parts of his face not covered by the disguise are visible. The photograph is in color, although its resolution leaves something to be desired. On appeal, the photograph may not be as useful to this Court as it was to the jury, since it had an opportunity to see Evans in person; but we note that at the very least, the robber’s appearance is not inconsistent with the single photograph of Evans that appears in the record.

¶ 8. Evans testified in his own defense, and he denied robbing the bank. Evans stated that on the morning of the robbery, he drove a school bus route in Newton, Mississippi. The bus route and accompanying duties occupied him until approximately 7:30 a.m. Evans then went to his father’s home in Lawrence, Mississippi, to repair a heater, although the father was not home at the time. Evans was not sure about the time he left his father’s home, but afterwards he went to Scott County (approximately twenty minutes away) to eat lunch at a Super Value. There he met his son, apparently coincidentally, and the two ate together. After leaving the Super Value, Evans got a call from Maracha, who asked him to come by and told him something about a bank robbery, which he assumed was a “put on.” When Evans arrived, Maracha’s sister was there, and she was upset that her vehicle had been used in a robbery. Maracha’s sister told Evans he needed a lawyer, so he and Maracha left to speak with one. During their discussion with the attorney, Maracha offered to alibi him, but Evans told her he would not lie. Evans also denied that he had ever borrowed the vehicle used in the robbery.

¶ 9. The transportation director of the Newton Municipal School District corroborated Evans’s testimony that he had driven a school bus on the morning of the robbery. Evans’s son also testified that he ate lunch with his father at the Super Value in Forest, Mississippi, “before 11:00” that morning, and that Evans was not stained by dye. Evans testified that the drive from Forest to Laurel was approximately an hour and a half. As the robbery happened approximately 9:30 that morning and he was eating with his son before 11:00 a.m., Evans contended that he could not have been the robber.

¶ 10. On appeal, Evans points to certain weaknesses in the prosecution’s case, but we find none of them compelling. The teller identified a different man in a photographic lineup conducted shortly after the robbery. Evans points out that the teller had the most interaction with the robber, but the State counters that she testified that she did not look at the robber closely because she was afraid of him. Evans also points to an alleged inconsistency in Mara-cha’s accounts concerning how Evans arrived to pick up her car. On cross-examination, Evans’s attorney asked Maracha whether she had told the police Evans had been “dropped off’ at her house; Maracha had previously testified at trial that Evans had arrived at the house in his truck with another person to drive it away. We fail to see the importance of this distinction; and, at any rate, Maracha denied using the words “dropped off’ when she spoke with the police. The police report referenced by Evans’s attorney was never placed into the record or entered into evidence.

¶ 11. Evans fails to address — or even acknowledge — some of the most damning evidence against him. This includes the digital photograph of the robber from the bank security camera and much of Mara-cha’s testimony, including that Evans was stained by red dye when he came to her after the robbery and that Evans had confessed he committed the crime. Evans also asserts in his brief that: “No evidence was present [sic] that Evans had any type of burns or dye on his body or clothes.” It might be accurate as to whether Evans was burned, but the claim that there was no evidence Evans was stained by the dye is plainly false. This lack of candor is inconsistent with Evans’s obligations under the Mississippi Rules of Appellate Procedure. Rule 28(a)(4) requires the appellant’s brief to contain “statement of facts relevant to the issues presented for review.” M.R.A.P. 28(a)(4). Likewise, Rule 28(a)(6) requires that the contentions of appellant be supported by “the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” M.R.A.P. 28(a)(6). To comply with the rules, an appellant attacking the weight or sufficiency of the evidence supporting a jury’s verdict must disclose and examine all of the evidence in the record, including the evidence that supports the verdict.

¶ 12. Having reviewed the record, we find that this case presents nothing but a simple conflict in the evidence. Conflicts in the evidence are for the jury to resolve. Whittington v. State, 377 So.2d 927, 929 (Miss.1979). “[T]he jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Nix v. State, 8 So.3d 141, 146 (¶ 26) (Miss.2009) (quoting Mohr v. State, 584 So.2d 426, 431 (Miss.1991)). The evidence against Evans was compelling, and the jury simply did not accept his alibi defense. This is not an exceptional case where the evidence preponderates heavily against the verdict. This issue is without merit.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF CONVICTION OF ROBBERY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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


text:
    Ellis DAWKINS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01287-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    Rehearing Denied Dec. 6, 2011.

      Ellis Dawkins, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On August 19, 2002, in the Marshall County Circuit Court, Ellis Dawkins pled guilty to one count of capital rape. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC) with ten years to serve and ten years suspended. Dawkins was also sentenced to five years of supervised probation. On July 1, 2009, Dawkins filed a petition to clarify his sentence alleging that his current sentence exceeded what he agreed to accept in his plea agreement. The circuit judge, viewing Daw-kins’s petition as a motion for post-conviction relief (PCR), summarily dismissed the motion. Feeling aggrieved, Dawkins now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. A Marshall County grand jury indicted Dawkins for one count of sexual battery and one count of capital rape. Dawkins, with his attorney present, appeared before the circuit court on August 19, 2002, and entered a plea of guilty to the charge of capital rape. The sexual battery charge was retired to the files. Finding that Dawkins was competent to enter his guilty plea, the circuit judge found him guilty of capital rape. The circuit judge sentenced Dawkins to serve twenty years’ imprisonment in the custody of the MDOC. Dawkins was ordered to serve ten years of his sentence with ten years suspended and five years of supervised probation.

¶ 3. On July 1, 2009, almost six years after he was sentenced, Dawkins filed a petition to clarify sentence in the circuit court. In his petition, Dawkins alleged that he “entered a plea agreement for 20 years[,] but [he] received 25 years instead.” Viewing the petition to clarify sentence as a PCR motion, the circuit judge reviewed Dawkins’s PCR motion and court file. The circuit judge found that “it plainly appealed] from the face of the motion, exhibits, and prior proceedings that [Dawkins] is not entitled to any relief.” The circuit judge entered his summary dismissal of the PCR motion on February 8, 2010.

¶ 4. Feeling aggrieved by the summary dismissal of his PCR motion, Dawkins now appeals raising the following issues:

I. The circuit court erred by allowing the State to breach the plea agreement.
II. The circuit court erred by denying Dawkins “an in-court opportunity to determine the merits of the plea.”
III. The circuit court erred by issuing an ambiguous sentence.

Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. The circuit court may summarily dismiss a PCR motion “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2010). Upon appellate review, this Court will affirm the circuit court’s summary dismissal of a PCR motion “if the [movant] fails to demonstrate ‘a claim procedurally alive substantially showing the denial of a state or federal right.’” Chapman v. State, 47 So.3d 203, 206 (¶ 8) (Miss.Ct.App.2010) (quoting Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009)).

ANALYSIS

¶ 6. We first note that the circuit judge properly viewed Dawkins’s petition to clarify sentence as a PCR motion. We must also note that the record before us does not include the full transcript of Daw-kins’s guilty-plea colloquy. We were only provided with a one-page excerpt of the colloquy. Finally, we note that Dawkins’s filing of a PCR motion is time-barred pursuant to Mississippi Code Annotated section 99-39-5(2) (Supp.2010) because it was filed more than three years after the entry of the judgment of conviction. Time bar notwithstanding, this Court will address the merits of Dawkins’s appeal in regard to his claim that his sentence was ambiguous.

¶ 7. In his brief, Dawkins asserts that the plea bargain he entered was for a term of twenty years, but the sentence actually imposed was for twenty-five years. Daw-kins attached to his brief a copy of his petition for the circuit court to accept his guilty plea. Statement 10(b) of that petition says the following:

As a result of plea bargaining, my attorney and I have reached an agreement with the District Attorney’s Office concerning my offer to plead guilty to the charge(s) listed in paragraph three. It is my understanding that I receive a sentence as follows or see attached plea agreement:

Following that statement is a series of blank lines in which the following was handwritten:

20 [years] 10 — suspended 5 — to serve
5 [years] PRS
Costs & Restitution

This is the sentence that Dawkins requests this Court to find as his proper sentence. However, this sentence clearly does not comport with the later statements made at Dawkins’s guilty-plea hearing and the guilty-plea order entered by the circuit judge. In the one-page portion of Daw-kins’s guilty-plea transcript we have before us for review, the circuit judge asked if the State had a recommendation for Dawkins’s sentence. We quote the following portion of the transcript verbatim:

THE STATE: Yes, Your Honor. The State recommends a term of incarceration of twenty years with twenty years suspended, with ten [years] to serve
THE COURT: Ten years suspended and—
THE STATE: Yes sir,
THE COURT: — ten [years] to serve?
THE STATE: Yes, sir, and five years [of] post-release supervision.
THE COURT: All right. The [c]ourt is going to accept the recommendation of the State in this matter. Accordingly, Ellis Dawkins, you are hereby sentenced to a term of twenty years in an institution to be designated by the Department of Corrections. The [c]ourt is going to suspend ten years of that sentence, leaving you ten [years] to serve. The [cjourt is going to order that you be placed on five years [oj] post-release supervision, and the [cjourt’s going to order that you pay any and all costs, fees, assessments, restitution, if any, no later than while on post-release supervision.

(Emphasis added).

¶8. Then, in a document titled “Guilty Plea Post Release Supervision Order,” the circuit judge ordered that Dawkins “serve a term of 20 YEARS [of] imprisonment in the custody of the Mississippi Department of Corrections. The [c]ourt hereby suspends ten (10) years of said sentence conditioned upon the defendant[’]s good behavior after his release from the institution.” (Emphasis in original). The circuit judge also ordered that Dawkins be “placed on supervised probation for a period of 5 (five) years following his term of imprisonment....” After review of the transcript and the guilty-plea order, it is clear to this Court that the circuit court sentenced Dawkins to twenty years with ten years to serve and ten years suspended. Although it is less clear as to whether Dawkins would be on five years of post-release supervision (PRS) or five years of supervised probation, it is of little consequence in the current case.

¶ 9. Since Dawkins’s guilty-plea petition stated that he is not a prior-convicted felon, he would be eligible for either PRS or probation. Pursuant to Mississippi Code Annotated section 47-7-34 (Rev. 2004), the circuit court may impose a term of PRS if the punishment includes a term of incarceration; “[h]owever, the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed.” (Emphasis added). Dawkins pled guilty to the crime of capital rape in violation of Mississippi Code Annotated section 97-3-65 (Supp.2010). The maximum sentence for this crime is life imprisonment; the minimum is twenty years’ imprisonment. Id. Thus, any claim by Dawkins that the imposition of a twenty-five year sentence would be illegal is not accurate since a twenty-five year sentence is clearly within the statutory parameters. Alternatively, if the circuit judge intended to impose five years of supervised probation, the end result is the same. Probation is “not subject to the ‘totality’ of sentence concept found in [Mississippi Code Annotated section] 47-7-34.” Jones v. State, 805 So.2d 610, 612 (¶ 7) (Miss.Ct.App.2002) (quoting Carter v. State, 754 So.2d 1207, 1209 (¶ 5) (Miss.2000)). If the circuit judge imposed probation, Dawkins’s sentence is still lawful since the five-year period is not considered when computing Dawkins’s total sentence.

¶ 10. Finding that Dawkins PCR motion was time-barred and that his sentence was not ambiguous, we affirm the circuit court’s summary dismissal of Dawkins’s PCR motion.

¶11. THE JUDGMENT OF THE MARSHALL COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.

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

      . On July 22, 2009, and December 15, 2009, the Mississippi Supreme Court dismissed Dawkins’s PCR application for leave to proceed in the trial court finding that Dawkins had not directly appealed his conviction and sentence. The supreme court found in both instances that Dawkins should proceed to file his PCR motion in the circuit court pursuant to Mississippi Code Annotated section 99-39-7 (Supp.2010).


author: MAXWELL, J.,

text:
    Frank Demetrius PATTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00423-COA.
    Court of Appeals of Mississippi.
    Aug. 16, 2011.
    Rehearing Denied Dec. 6, 2011.
    Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.

      Office of the Attorney General by Ladonna C. Holland Scott Stuart, attorneys for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. A Jackson County jury found Frank Demetrius Patton guilty of murdering his wife. He appeals arguing the jury’s rejection of his insanity defense preponderates against the weight of the evidence. Viewing the evidence in the light most favorable to the verdict, we find the State’s theory that Patton could distinguish right from wrong when he shot his wife is supported by expert testimony and reasonable inferences drawn from the circumstances surrounding her death. We affirm.

FACTS

¶ 2. In the early-morning hours of February 23, 2008, Patton called 911 claiming his wife, Remicka, had shot him. Police arrived on the scene to find Patton’s wife dead from a gunshot wound to her head. They discovered a loaded .380-caliber pistol next to her body. Investigators also encountered Patton, who had been shot in the chest. Because the path of the bullet did not pierce any vital organs, Patton was able to be interviewed shortly after the incident. Patton waived his Miranda rights and agreed to speak to Detective Jeff Smith of the Moss Point Police Department.

¶ 3. Patton claimed he heard two gunshots. He initially maintained that he was hit by the first of the shots but did not know who had shot him. Later in the interview, he claimed he thought his wife had shot him, though he could not explain why she would have done so. At another point he told Detective Smith, “I think she shot herself.” Patton admitted he and Remicka had discussed divorce the week before her death, and Patton thought she might leave him.

¶ 4. Dr. Paul McGarry, a forensic pathologist, testified Remicka sustained a “tight contact wound.” Dr. McGarry explained that this meant the muzzle of the gun was directly against her head when it discharged, instantly killing her. Dr. McGar-ry did not believe the injury was self-inflicted because the bullet traveled in a downward path from the right-front to the left-back of her skull. He also observed that blood was spattered all over her right arm and hand, which he believed was extended toward the side of her body at the time she was shot. Forensic scientist David Whitehead testified that gunshot-residue samples taken from Remicka were all negative. Gunshot residue was identified on both of Patton’s hands.

¶ 5. Patton pursued an insanity defense. He introduced three family members as character witnesses. These witnesses essentially testified that Patton had a quiet, reserved personality. Patton also put on two experts. Dr. Roy Barnes testified as an expert in psychiatry. He examined Patton on two occasions for about ten minutes each. Dr. Barnes claimed he “felt pretty confident that [Patton’s] diagnosis was Schizoaffective Disorder, which is similar to schizophrenia, but somewhat less severe in nature.” Though Dr. Barnes “felt like [Patton] was being honest,” he expressed no opinion as to Patton’s ability to distinguish right from wrong at the time of the shooting. On cross-examination, Dr. Barnes admitted he had performed no tests on Patton and “didn’t go into detail to determine” if Patton was malingering.

¶ 6. Dr. Stefan Massong testified on Patton’s behalf as an expert in psychology. Patton told Dr. Massong he remembered retrieving his gun and bringing it to the room where his wife was asleep. Patton then recalled he “released the trigger.” According to Dr. Massong, Patton claimed he had experienced a blackout during the incident. Dr. Massong thought Patton’s symptoms indicated he had “disassociation amnesia.” As a result, Dr. Massong did not believe Patton had a Ml awareness of what he was doing, or was capable of premeditation at the time of the shooting.

¶ 7. Dr. Massong’s testimony conflicted with the State’s rebuttal expert, Dr. Criss Lott, a psychologist who had previously interviewed Patton. Dr. Lott testified that Patton had told him he remembered shooting his wife in the head shortly after their discussions about getting a divorce. In explaining why he shot his wife, Patton offered, “I don’t know why I did it. I was just confused. I let everything build up inside of me.” In Dr. Lott’s opinion, to a reasonable degree of psychological certainty, Patton understood the nature and quality, as well as the wrongfulness, of his actions.

¶ 8. The jury found Patton guilty of murder, and the circuit court sentenced him to life imprisonment. On appeal, Patton argues the jury’s rejection of his insanity defense is against the overwhelming weight of the evidence.

STANDARD OF REVIEW

¶ 9. When reviewing a claim based on the weight of the evidence, we evaluate the evidence in the light most favorable to the verdict and “will only disturb [the] verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). We must accept as true all evidence consistent with the defendant’s guilt, along with any reasonable inferences that might be drawn from the evidence. Young v. State, 891 So.2d 818, 821 (¶ 21) (Miss.2005). An appellate court’s authority to grant a new trial based on the weight of the evidence should only “be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18).

DISCUSSION

¶ 10. Mississippi follows the M’Naghten test to determine a criminal defendant’s sanity. To establish the defense:

it must be clearly proved that at the time of committing of the act the accused was laboring under such defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing, or (2) if he did know it, that he did not know that what he was doing was wrong. More succinctly, the test for insanity is whether the defendant was unable to distinguish right from wrong at the time the act was committed.

Roundtree v. State, 568 So.2d 1173, 1181 (Miss.1990) (internal citations and quotations omitted). Once a defendant raises a reasonable doubt as to his sanity, the State then must prove the defendant’s sanity beyond a reasonable doubt. Id.

¶ 11. In making its determination on the defendant’s sanity, “the jury may accept or reject expert and lay testimony.” Id. The Mississippi Supreme Court has held when there is conflicting testimony on the issue of the defendant’s sanity, “a jury’s verdict on [that] issue is essentially conclusive and unreviewable.” Crawford v. State, 787 So.2d 1236, 1243 (¶ 29) (Miss.2001). The supreme court has further explained: “[institutional and practical considerations mandate that in insanity defense cases, perhaps more than any other, a jury’s verdict ought to be given great respect and deference.” Id.

¶ 12. Here, we are faced with conflicting expert testimony. Though Dr. Barnes believed Patton had a mental disorder, he did not testify as to Patton’s M’Naghten sanity. Dr. Massong determined Patton was disassociated from his own actions during the shooting or experienced a blackout, but Dr. Lott adamantly disagreed with this assessment. Dr. Lott did not find Patton suffered from any severe mental illness at the time of the shooting. Nor did he think Patton experienced hallucinations or a loss of consciousness during the shooting. It was the jury’s responsibility to resolve this conflict. See Crawford, 787 So.2d at 1243 (¶ 29).

¶ 13. Further, the jury was free to draw inferences from the circumstances surrounding the killing. Patton’s inconsistent statements to Detective Smith could have been viewed quite negatively by the jury. The alleged marital difficulties and his wife’s mention of divorce in the days leading to the shooting tend to show a possible motive for the shooting. And the physical and medical evidence strongly supports the State’s theory that Patton shot his wife, then intentionally shot himself as some sort of a ruse or effort to conceal his crime. Such attempts of deception have been held to demonstrate guilty knowledge. Tyler v. State, 618 So.2d 1306, 1312 (Miss.1993) (holding the defendant’s false statement that the murder victim was asleep and the defendant’s attempt to hide the murder weapon both demonstrated guilty knowledge).

¶ 14. We find the State presented ample evidence to establish Patton’s sanity at the time of the shooting. Though Patton offered conflicting evidence, it was the jury’s role, not ours, to make witness-credibility determinations and resolve conflicts in the evidence. Therefore, we affirm the circuit court’s judgment.

¶ 15. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT 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 JACKSON COUNTY.

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