author: PIERCE, Justice, KITCHENS, Justice,

text:
    James Earl BOYD v. STATE of Mississippi.
    No. 2009-KA-00918-SCT.
    Supreme Court of Mississippi.
    Sept. 23, 2010.
    Rehearing Denied Nov. 18, 2010.

      Office of Indigent Appeals by W. Daniel Hinchcliff, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. This case comes before the Court on appeal from the Lowndes County Circuit Court. The jury convicted James Earl Boyd of aggravated assault pursuant to Mississippi Code Section 97-3-7, and the trial court sentenced Boyd to a term of twenty years. Boyd filed this timely appeal, and argues that the trial court erred in failing to instruct the jury that, in an aggravated-assault prosecution it must find that the instrument used by the defendant was a deadly weapon. Because it is well-established that failure to raise an issue at trial proeedurally bars review on appeal, we affirm Boyd’s conviction and sentence.

FACTS

¶ 2. On approximately March 29, 2008, Boyd had someone drop him off at Wanda Sherrod’s mother’s house. Sherrod, her mother, grandson, and nephew were all sitting on the front porch of the home. Boyd took a seat next to Sherrod’s mother and exchanged pleasantries. Boyd then moved to a seat that was closer to Sherrod and her grandson. As Sherrod got up to get her grandson some juice, Boyd said “Hold up Wanda, I got something for you.” He then produced a knife and cut Sherrod several times. Sherrod’s screams alarmed a neighbor, who noticed Boyd stabbing Sherrod. The neighbor ran inside her home and notified her husband. Upon coming outside, the husband saw Boyd stabbing Sherrod. He yelled at Boyd to stop and then pushed Boyd, causing Boyd to drop the knife. The husband kicked the knife away from Boyd, after which Boyd got up and calmly walked away. The neighbors called 911.

¶ 3. Officer Scott Glascow spotted Boyd walking a few blocks from the scene of the crime. Officer Glascow noticed Boyd had blood on his pants and that he was bleeding from his hands. Boyd told the officer, “I was defending myself. They were getting my money.” Boyd cooperated with all of the officer’s instructions and subsequently was arrested.

¶ 4. Boyd was indicted on one count of aggravated assault for the stabbing of Wanda Sherrod. Prior to trial and in response to Boyd’s motion, the trial court ordered Boyd to undergo a mental examination by the Mississippi State Hospital at Whitfield, Mississippi. The examination showed that, while he appeared to have a history of mental illness, Boyd was able to understand the nature of his alleged actions and the difference between right and wrong in relation to his alleged actions. The test further demonstrated that Boyd had a reasonable degree of rational understanding regarding the nature of legal proceedings against him. Additionally, the clinical psychologist noted that Boyd’s score on the Miller-Forensic Assessment of Symptoms Test (M-FAST), designed to assess exaggeration of psychological problems, reflected exaggeration of psychotic symptoms and malingering. The results of Boyd’s mental examination were made part of the record in this appeal.

¶ 5. At trial, Boyd interrupted his attorney and the voir dire proceedings by taking his pants off and throwing them at the trial judge. The trial court had the jurors removed. Boyd’s attorney moved for a mistrial, which the trial court denied. Again, the trial court made an on-the-record statement regarding Boyd’s actions and concluded that Boyd was intentionally acting out in order to convince the jury that he was mentally ill. Upon their return, the trial court addressed the jurors regarding Boyd’s actions, and all jurors indicated that they could be fair despite Boyd’s conduct.

¶ 6. The State produced three witnesses at trial, other than the Sherrod, who had seen Boyd repeatedly stab Sherrod with a knife. The knife Boyd allegedly had used to stab and cut Sherrod was admitted into evidence. Detective Travis Robertson, the investigating officer, testified that the knife Boyd had used to stab and cut Sher-rod was a “kitchen knife” and that it did not have a blade guard, which had resulted in cuts to Boyd’s right hand. The evidence further showed that the knife had a serrated edge.

¶7. Additionally, the State introduced testimony from Dr. Thomas Vincent, the treating general surgeon, who testified that he had repaired sixteen wounds located mostly on Sherrod’s face, neck and arms. Dr. Vincent’s testimony revealed that several of Sherrod’s wounds were substantial and measured more than four inches in length. Dr. Vincent further stated that if the wounds on Sherrod’s neck had been a few centimeters deeper, Boyd would have severed Sherrod’s carotid artery.

¶ 8. After a two-day trial, the jury returned a verdict of “guilty.” Upon receiving the pre-sentence investigation report, the trial court sentenced Boyd to a term of twenty years. Boyd filed this timely appeal.

DISCUSSION

¶ 9. Boyd claims for the first time on appeal that the trial court erred in failing to instruct the jury that, in an aggravated-assault prosecution, it must find that the instrument used by the defendant was a deadly weapon. At trial, Boyd did not object to the state’s instruction concerning the elements of aggravated assault. The State argues that because Boyd failed to object at trial, the issue was not preserved for appeal.

¶ 10. It is well-established that failure to raise an issue at trial procedurally bars review on appeal. “To preserve a jury instruction issue on appeal, the defendant must make a specific objection to the proposed instruction to allow the trial court to consider the issue.” Boyd failed to object to the State’s instruction regarding the elements of aggravated assault at trial, nor did he raise the issue in his motion for judgment notwithstanding the verdict. Thus, Boyd is procedurally barred from raising this issue for the first time on appeal.

¶ 11. Notwithstanding the procedural bar, this issue is without merit. Generally, “[jury] instructions are to be read as a whole.” “When analyzing jury instructions as a whole, ‘defects in specific instructions will not mandate reversal when all of the instructions, taken as a whole fairly — although not perfectly — announce the applicable primary rules of law.’ ” “[I]f the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.”

¶ 12. In the instant case, the State— without opposition from Boyd — offered instruction S-2, which provided the following:

The Court instructs the Jury that if you find from the evidence in this case beyond a reasonable doubt that on or about March 29, 2008, James Earl Boyd, did unlawfully, willfully, feloniously, purposely, and knowingly cause bodily injury to Wanda Sherrod with a knife, without authority of law and not in necessary self-defense, then you shall find the defendant guilty as charged.
If the State fails to prove any one or more of the above elements beyond a reasonable doubt, then you should find the defendant not guilty.

The statute under which Boyd was convicted states, in pertinent part:

(2) A person is guilty of aggravated assault if he ... (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm....

Miss.Code Ann. § 97-3-7 (Rev.2006).

¶ 13. As the statute reveals, the phrase “with a deadly weapon or other means likely to produce death or serious bodily harm” is an essential element of the statute. And although no rule or precedent requires that an instruction mirror the exact language of a criminal statute, we have held that “the jury must be correctly and fully instructed regarding each element of the offense charged.” The “purpose of jury instructions is to tell the jury what facts they have to find and who has the burden of proving or disproving those facts.”

¶ 14. The jury instruction at issue, S-2, did not properly instruct the jury that, in order to convict Boyd of aggravated assault, it must find: (1) that the knife with which Boyd had injured Sherrod is a “deadly weapon,” or (2) that Boyd had caused Sherrod’s injuries by “other means” likely to produce death or serious bodily injury. But we find, as we have before, that no fair-minded and properly instructed jury could fail to find that Boyd’s knife was a deadly weapon, and that Boyd’s cutting and stabbing Sherrod multiple times was likely to produce serious bodily injury. In light of the overwhelming evidence that the knife Boyd used to stab Sherrod was a deadly weapon, we may safely conclude that the same result would have been reached had the State included the phrase “a deadly weapon” in the elements instruction. Accordingly, this assignment of error is without merit.

CONCLUSION

¶ 15. For the reasons stated, we affirm the trial court.

¶ 16. CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

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

KITCHENS, Justice,

dissenting:

¶ 17. The majority finds that jury instruction S-2 “did not properly instruct the jury....” Maj. Op. at ¶ 14. Yet, in the same paragraph, the majority opines that “no fair-minded and properly instructed jury could fail to find that Boyd’s knife was a deadly weapon.... ” Id. (emphasis added). Because the trial court’s instructions fell short of apprising the jury of all the essential elements of the crime of aggravated assault, thus failing to put before the jurors the question of whether the instrument wielded by the defendant was, in fact, a deadly weapon — a question entirely within the jury’s province — I respectfully dissent.

¶ 18. In Mississippi, “[i]t is rudimentary that the jury must be instructed regarding the elements of the crime with which the defendant is charged.” Hunter v. State, 684 So.2d 625, 635 (Miss.1996). See Henderson v. State, 660 So.2d 220, 222 (Miss.1995); Neal v. State, 451 So.2d 743, 757 (Miss.1984), cert. denied, 469 U.S. 1098, 105 S.Ct. 607, 83 L.Ed.2d 716 (1984). Thus, it is “ ‘fundamental error’ to fail to instruct the jury of the essential elements of a crime.” Reddix v. State, 731 So.2d 591, 592 (Miss.1999). See Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).

¶ 19. In Reddix, the defendant was convicted of aggravated assault for violation of Mississippi Code Section 97-3-7(2)(b). Reddix, 731 So.2d at 592. At trial, the State offered, and the trial court granted, jury instruction S-l as its elements instruction:

The Court instructs the Jury that if you believe from the evidence in this case beyond a reasonable doubt that on or about August 23, 1994, in Jackson County, Mississippi, the defendant committed an aggravated assault in and upon the body of Kevin Bickham with a certain deadly weapon, to wit: a shotgun, without provocation, or without threat of great bodily harm to himself, then it will be your sworn duty to find the defendant guilty as charged.
If the State has failed to meet its burden of proof beyond a reasonable doubt then you shall find the defendant not guilty.

¶ 20. Notably, on appeal, the State acknowledged that there was merit to Red-dix’s contention that the jury had not been adequately instructed respecting the elements of aggravated assault. On that and other grounds (the trial court’s failure to give an appropriate self-defense instruction), this Court reversed and remanded. The Reddix Court observed that, when the jury is not instructed as to the essential elements of aggravated assault, it has no way to determine whether the State has met its burden of proof. Reddix, 731 So.2d at 593.

¶ 21. Likewise, in this case, the State offered, and the trial court granted, an inadequate elements instruction. That instruction, S-2, is as follows:

The Court instructs the Jury that if you find from the evidence in this case beyond a reasonable doubt that on or about March 29, 2008, James Earl Boyd, did unlawfully, willfully, feloniously, purposely, and knowingly cause bodily injury to Wanda Sherrod with a knife, without authority of law and not in necessary self-defense, then you shall find the defendant guilty as charged.
If the State fails to prove any one or more of the above elements beyond a reasonable doubt, then you should find the defendant not guilty.

Conspicuous by its omission from the jury-instruction is a characterization of the knife as a deadly weapon, despite the fact that this element of the crime was properly pled in the indictment. And, as in Reddix, the lower court gave the jury no other instruction that set out all the elements of aggravated assault.

¶ 22. The majority correctly states “that failure to raise an issue at trial procedurally bars review on appeal....” Maj. Op. at ¶ 1. However, this Court has held that “errors affecting fundamental rights are exceptions to the rule that questions not raised in the trial court cannot be raised for the first time on appeal.” Smith v. State, 477 So.2d 191, 195 (Miss.1985). Additionally, we have held that “[finstruct-ing the jury on every element of the charged crime is so basic to our system of justice that it should be enforced by reversal in every case where inadequate instructions are given, regardless of a failure to object ... at trial.” Shaffer v. State, 740 So.2d 273, 282 (Miss.1998). In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that a criminal defendant is indisputably entitled to “a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” Apprendi, 530 U.S. at 477, 120 S.Ct. 2348 (citing United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). Where a jury is not instructed on all the essential elements of the crime charged, the defendant is denied his fundamental right to due process. Shaffer, 740 So.2d at 282.

¶ 23. Mississippi’s statutory law on the felony of aggravated assault- is found in Section 97-3-7(2) of the Mississippi Code of 1972. That statute proscribes various kinds of conduct which, if correctly charged and adequately proven, can result in one’s being convicted of aggravated assault. Apropos to this case is Subsection (b) of Section 97-3-7(2), which makes it a serious felony for one to attempt to cause, or purposely or knowingly to cause, bodily injury to another person with a deadly weapon or other means likely to produce death or serious bodily harm. Miss. Code Ann. § 97-3-7(2)(b) (Rev.2006).

¶24. The indictment in the present case contains all of the elements of the crime of aggravated assault, alleging that the accused “... did unlawfully, willfully, and feloniously, purposely and knowingly cause bodily injury to Wanda Sherrod, a human being, with a deadly weapon, to wit, a knife.... ” The majority rightly notes that “... the phrase, ‘with a deadly weapon or means likely to produce death or serious bodily harm’ is an essential element of the statute,” meaning, undoubtedly, an essential element of the offense. (Emphasis added.)

¶ 25. Notwithstanding the evidence that Wanda Sherrod suffered multiple bodily injuries, because the indictment was drawn pursuant to the portion of the aggravated assault statute that proscribes the infliction of injury on another person with a deadly weapon, it was indispensable that the jury pass on this material element of the offense, as charged. A jury cannot be said to have decided something that it was not instructed to decide. If a defendant is not found guilty upon proper instructions that have put before the jury all of the material elements of the offense charged, then we cannot say that he or she has been convicted, even in the face of a guilty verdict. It does not suffice for us to pronounce, as the majority undertakes to do, that “no fair minded and properly instructed jury could fail to find that Boyd’s knife was a deadly weapon.” Though this Court is constitutionally vested with considerable authority, we do not possess the power to fathom what a jury could have found if it had been properly instructed.

¶26. This Court consistently has held that whether an instrument is a deadly weapon is a question of fact to be determined by the jury. Davis v. State, 530 So.2d 694, 702 (Miss.1988); Duckworth v. State, 477 So.2d 935, 938 (Miss.1985); Jackson v. State, 404 So.2d 543, 544 (Miss.1981); Shanklin v. State, 290 So.2d 625, 627 (Miss.1974); Johnson v. State, 230 So.2d 810, 811 (Miss.1970); Cobb v. State, 233 Miss. 54, 101 So.2d 110, 112 (1958); Golden v. State, 223 Miss. 649, 78 So.2d 788, 791 (1955); Gray v. State, 220 Miss. 220, 70 So.2d 524, 525 (1954); Smith v. State, 49 So.2d 244, 245 (Miss.1950); Lott v. State, 130 Miss. 119, 93 So. 481, 481-482 (1922); Saffold v. State, 76 Miss. 258, 24 So. 314, 315 (1898).

¶ 27. Whether a thing is a deadly weapon is not a query that is susceptible of judicial interpretation in the State of Mississippi, unless we are willing and ready to overrule well over a century of jurisprudence to the effect that this is always an issue of fact for determination by the trier of fact, in this case, the jury. Although the term a knife may have an ominous ring to it, and while we may, from our lofty perch on High Street, wisely opine that no one could doubt that the knife at issue in this case is a deadly weapon, such a determination is not within the province of jurists, but of jurors. The jurors who were empaneled to decide the present case were not given that opportunity, no matter how fervently we may believe that we know what they would have decided if only they had been asked. No matter how compelling we may believe the evidence to have been, no matter how graphic the photographs in the record before us may be, the issue of whether the knife allegedly wielded by Boyd should be classified as a deadly weapon was, and continues to be, a question of fact that should have been placed before the jury for the jury’s resolution, not the trial judge’s and not ours.

¶ 28. For the foregoing reasons, I would reverse and remand for a new trial.

GRAVES, P.J., AND CHANDLER, J., JOIN THIS OPINION.

      . Under the facts presented in the record, Uniform Circuit and County Court Rule 9.06 was satisfied to the extent the rule requires a hearing, after a mental examination has been ordered, to determine if the defendant is competent to stand trial. Prior to the start of trial, the trial court held a hearing and addressed the results of Boyd's mental examination. Judge Kitchens found Boyd competent and made an on-the-record determination regarding Boyd’s mental state: "I find no indication that you’re [Boyd] mentally ill to the extent that you didn’t understand right from wrong in this report.”

      . Boyd scored an 18 on the M-FAST. Scores of 6 or more are considered to reflect exaggeration and malingering.

      . After Boyd’s disruptive conduct, the trial court again stated on the record:
      I think it is a well orchestrated plan by Mr. Boyd. I have been able to discuss with Mr. Boyd. He’s given answers that were — that shows that he’s properly oriented. They were responsive to the questions, and he’s been able to phrase questions in a well [sic] in responsive to the Court that indicated to this Court that he understands what's going on.

      . Walker v. State, 913 So.2d 198, 217 (Miss.2005).

      . Harris v. State, 861 So.2d 1003, 1013 (Miss.2003) (citing Crawford v. State, 787 So.2d 1236, 1244-45 (Miss.2001)); see also Colburn v. State, 431 So.2d 1111, 1114 (Miss.1983) ("Because appellant failed to object to this instruction at trial, such has not been properly preserved for appellate review.”).

      . Utz v. Running and Rolling Trucking, Inc., 32 So.3d 450, 474 (Miss.2010) (citing Bickham v. Grant, 861 So.2d 299, 301 (Miss.2003)).

      . Id. (quoting Beverly Enter. v. Reed, 961 So.2d 40, 43 (Miss.2007)).

      . Harris v. State, 861 So.2d 1003, 1014 (Miss.2003) (citing Montana v. State, 822 So.2d 954, 957 (Miss.2002)).

      . Additionally, the language in the indictment provided, in pertinent part:
      [T]hat James Earl Boyd late of the County aforesaid, on or about the 29th day of March, 2008, in the County and State aforesaid, did unlawfully, willfully, and felo-niously, purposely and knowingly cause bodily injury to Wanda Sherrod, a human being, with a deadly weapon, to wit: a knife, without authority of law and not in necessary self defense, in violation of MCA § 97-3-7; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Mississippi.

      . Hunter v. State, 684 So.2d 625, 636 (Miss.1996) (citing Neal v. State, 451 So.2d 743, 757 (Miss.1984)).

      . Neal v. State, 15 So.3d 388, 397 (Miss.2009) (citing Harris v. State, 861 So.2d 1003, 1016 (Miss.2003)).

      . Miss.Code Ann. § 97-3-7(2)(b) (Rev.2006).

      . Again, the knife used by Boyd was admitted into evidence, along with a picture of the knife as it was found by Detective Robertson. The appellate record contains the picture of the knife and shows that the knife had a serrated edge and no blade guard. It is clear from the evidence that the knife Boyd used to injure Sherrod was a deadly weapon.

      . See Hutchinson v. State, 594 So.2d 17, 19-20 (Miss.1992) (Court determined that the knife used by Hutchinson was a deadly weapon, and stated ”[W]e have held in assault cases whether the instrumentality of attack is a deadly weapon within the statute is a question for the jury, (citations omitted), but this rule is in part a function of the fact that there is no such thing as a directed verdict for the prosecution in a criminal case.” Fairchild v. State, 459 So.2d 793, 800-01 (Miss.1984)).

        .See Lancaster v. State, 200 So. 721, 722 (Miss.1941) and Kolberg v. State, 829 So.2d 29, 48 (Miss.2002) (citing Conley v. State, 790 So.2d 773, 793 (Miss.2001)) (Where the Court noted that an "[Ejrror is harmless if it is clear beyond a reasonable doubt that it did not contribute to the verdict.”).

      . The Reddix indictment does not, and should not, include the second option provided by this portion of the statute, "or other means likely to produce death or serious bodily harm." Rather, this indictment alleges that the offending instrument was a deadly weapon, and briefly elaborates that it was a knife. This is a sufficient description of the injuring instrument in this case, and is an essential element of the crime as charged.


source: Caselaw Access Project

author:
CHANDLER, Justice,
      RANDOLPH, Justice, PIERCE, Justice,

license: Public Domain

text:
    Billy G. RAYNER, In His Official Capacity as Circuit Clerk of Jasper County, Mississippi, and as a Qualified Member of the Voting Electorate of the Thirteenth Circuit Court District of the State of Mississippi; Cindy Jensen, In Her Official Capacity as Circuit Clerk of Simpson County, Mississippi, and as a Qualified Member of the Voting Electorate of the Thirteenth Circuit Court District of the State of Mississippi; Anthony Grayson, In His Official Capacity as Circuit Clerk of Smith County, Mississippi, and as a Qualified Member of the Voting Electorate of the Thirteenth Circuit Court District of The State of Mississippi, and Richard Felton Aultman, In His Official Capacity as Election Commissioner of Covington County, Mississippi, and as a Qualified Member of the Voting Electorate of the Thirteenth Circuit Court District of the State of Mississippi v. Haley BARBOUR, In His Official Capacity as Governor of the State of Mississippi and as a Member of the State Board of Election Commissioners; Delbert Hosemann, In His Official Capacity as Secretary of State of the State of Mississippi, As the Chief Election Officer of the State of Mississippi, and as a Member of the State Board of Election Commissioners; and Jim Hood, In His Official Capacity as Attorney General of the State of Mississippi and as Member of the State Board of Election Commissioners.
    No. 2010-EC-01682-SCT.
    Supreme Court of Mississippi.
    Oct. 27, 2010.
    S. Wayne Easterling, Hattiesburg, attorney for appellants.
    Office of the Attorney General by Harold Edward Pizzetta, III, Jackson, attorney for appellees.
   CHANDLER, Justice,

for the Court:

¶ 1. The circuit clerks of Jasper, Simpson, and Smith Counties and an election commissioner of Covington County have filed a petition for an expedited appeal of an order entered by the Circuit Court of Hinds County, First Judicial District. The order, entered on October 18, 2010, denied their complaint to enjoin the November 2, 2010, election for circuit court judge for the Thirteenth Circuit Court District. The defendants are Governor Haley Barbour, Secretary of State Delbert Hosemann, and Attorney General Jim Hood, in their official capacities and in their capacities as members of the State Board of Election Commissioners (the Board). The Board had ordered a write-in election for the position of circuit court judge for the Thirteenth Circuit Court District after the death of the only candidate who had qualified for the position, incumbent Honorable Judge Robert Evans. Judge Evans’s demise occurred after the qualifying deadline had passed. The plaintiffs argue that the write-in election ordered by the Board will contravene the election laws pertaining to judicial offices, and that the election properly should be conducted as a special election to be held in November 2011. The defendants cross-appeal the circuit court’s assessment of costs against them.

¶ 2. We grant the petition for an expedited appeal. Finding that the Board’s interpretation of the governing statutes was permissible, we affirm the denial of the complaint. We also affirm the issue on cross-appeal.

FACTS

¶ 3. On July 13, 2010, a vacancy arose in the office of circuit court judge for the Thirteenth Circuit Court District upon the death of Judge Robert Evans. Judge Evans’s four-year term was set to expire on December 31, 2010. Upon Judge Evans’s death, Gov. Barbour appointed the Honorable Eddie H. Bowen to fill the vacancy. Prior to his death, Judge Evans had been the only candidate who had qualified as a candidate to the office in the general election to be held on November 2, 2010.

¶4. On September 7, 2010, the Board declared that, under state law, the election for circuit court judge for the Thirteenth Circuit Court District must occur according to its appropriate election schedule on November 2, 2010. The Board’s order stated, “[bjecause Judge Evans was the only candidate to qualify for the position and died after the qualifying deadline, this election will be determined by write-in candidate.” The order further stated that nonpartisan judicial elections require a majority of lawful votes cast, and a lawful vote is considered a vote for an individual qualified to serve as a circuit court judge, specifically, one who: (1) has been a practicing attorney for five years; (2) is at least twenty-six years old; (3) has been a five-year citizen of the State of Mississippi; and (4) is a resident of the particular judicial district. See Miss. Const, art. 6, § 154; Miss.Code Ann. § 9-7-1 (Rev. 2002). The order stated that, if a majority was not reached in the write-in election, the two candidates with the most votes would participate in a run-off election to be held on November 23, 2010. Accordingly, several candidates began campaigning as write-in candidates for election to the position of circuit court judge for the Thirteenth Circuit Court District.

¶ 5. The plaintiffs filed their complaint in the Circuit Court of Jasper County, Second Judicial District, on September 23, 2010, followed by an amended complaint on September 28, 2010. They requested injunctive and declaratory relief. The defendants filed a motion to dismiss or to transfer venue. The circuit court, Judge Henry Lackey presiding by special appointment by this Court, transferred the action to the Circuit Court of Hinds County. Following the recusal of the judges of the Circuit Court of Hinds County, First Judicial District, this Court specially appointed Judge Lackey to adjudicate the case.

¶ 6. After a hearing, Judge Lackey entered an order denying the request for injunctive and declaratory relief. The order stated:

Having considered the applicable law the court finds that Mississippi Code Section 28-15-1015 clearly mandates that an election occur on November 2, 2010, to select a circuit court judge for the new four-year term of office beginning January 1, 2011. The court further finds that the legislature has, through Code Section 28-15-865, provided that write-in candidates are appropriate in the event of the death of any candidate who has qualified to run for a particular office. Accordingly, the court finds that the Complaint and the request for in-junctive and declaratory relief are not well taken.

Judge Lackey assessed costs to the defendants.

ISSUE ON APPEAL

A. Standard of review

¶ 7. “[W]hen a statute is not ambiguous, this Court applies the statute according to its plain meaning and need not apply principles of statutory construction.” Barbour v. State ex rel. Hood, 974 So.2d 232, 240 (Miss.2008) (quoting Miss. Ins. Guar. Ass’n v. Cole, 954 So.2d 407, 412-13 (Miss.2007)). But if there is ambiguity, the interpretation afforded by the State Board of Election Commissioners must be upheld if it is “based on a permissible construction of the statute.” Id. at 241 (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694, 702 (1984)). This Court affords considerable weight to the construction given to a statutory scheme by the agency entrusted to administer it. Id.

B. Analysis

¶ 8. The plaintiffs in this case rely on Mississippi Code Section 9-1-103 and Mississippi Code Section 23-15-849(1) to support their argument that the regular election scheduled for November 2, 2010, should be postponed until November 2011. Section 9-1-103 states, in relevant part:

Whenever a vacancy shall occur in any judicial office by reason of death of an incumbent, resignation or retirement of an incumbent, removal of an incumbent from office, or creation of a new judicial office in which there has not heretofore been an incumbent, the Governor shall have the authority to appoint a qualified person to fill such vacancy to serve for the unexpired term or until such vacancy is filled by election as provided in Section 23-15-8Í9, Mississippi Code of1972.

Miss.Code Ann. § 9-1-103 (Rev.2002) (emphasis added). Section 23-15-849(1) provides:

(1) Vacancies in the office of circuit judge or chancellor shall be filled for the unexpired term by the qualified electors at the next regular election for state officers or for representatives in Congress occurring more than nine (9) months after the existence of the vacancy to be filled, and the term of office of the person elected to fill a vacancy shall commence on the first Monday in January following his election. Upon the occurring of such a vacancy, the Governor shall appoint a qualified person from the district in which the vacancy exists to hold the office and discharge the duties thereof until the vacancy shall be filled by election as provided in this subsection.

Miss.Code Ann. § 23-15-849(1) (Rev.2007) (emphasis added). Additionally, Mississippi Code Section 23-15-365 states:

There shall be left on each ballot one (1) blank space under the title of each office to be voted for, and in the event of the death, resignation, withdrawal or removal of any candidate whose name shall have been printed on the official ballot, the name of the candidate duly substituted in the place of such candidate may be written in such blank space by the voter.

Miss.Code Ann. § 23-15-365 (Rev.2007) (emphasis added). Under Article 6, Section 153 of the Mississippi Constitution and Mississippi Code Section 9-7-1, circuit court judges shall hold office for a term of four years. See Miss.Code Ann. § 9-7-1 (Rev.2002). Mississippi Code Section 23-15-1015 provides for an election to be held in every county every four years, concurrently with the election for representatives in Congress, for judges of the several chancery and circuit court districts. See Miss.Code Ann. § 23-15-1015 (Rev.2007).

¶ 9. The plaintiffs argue that, because the election scheduled for November 2, 2010, will take place fewer than nine months from when the vacancy occurred, the election must be postponed until November 2011 so that nine months may pass before the election as required by Section 23-15-849(1). The Board counters that Section 23-15-849(1) is not implicated by the facts of this case. The Board contends that Section 23-15-849(1) applies only when a special election is required to fill a vacancy; in this case, the vacancy will end upon the expiration of Judge Evans’s four-year term on December 31, 2010, and the new four-year term will begin on January 1, 2011. Thus, the November 2, 2010, election will be to elect a new judge for the regular four-year term; it will not be a special election to fill a vacancy in an unexpired term. And, because Judge Evans died after qualifying for the November 2, 2010 election, Section 23-15-865 applies, mandating a write-in election.

¶ 10. We find that the Board’s interpretation of the statutory scheme was permissible. It is plain that Sections 9-1-103 and 23-15-849 promulgate a procedure to fill judicial vacancies. Upon the occurrence of a vacancy, the Governor must appoint a qualified person from the district to serve until the vacancy is filled by special election. Miss.Code Ann. § 23-15-849 (Rev. 2007). A special election to fill the vacancy must take place more than nine months after the occurrence of the vacancy. Id. However, the use of the word “or” in Section 9-1-103 means that an election under Section 23-15-849(1) need not occur if there is so little time in the unexpired term that the appointee may legally “serve for the unexpired term.” Miss.Code Ann. § 9-1-103 (Rev.2002), Miss.Code Ann. § 23-15-849(1) (Rev.2007). Here, Judge Evans passed away five months prior to the expiration of his term. The Governor, pursuant to Section 25-15-849(1), appointed Judge Bowen to fill the vacancy. This “vacancy” will end on December 31, 2010, the date of the expiration of Judge Evans’s term, which is fewer than nine months after the vacancy occurred. The election for the new term of office is scheduled to occur on November 2, 2010, and Judge Evans already had qualified for that election. Because Judge Evans died fewer than nine months before the expiration of his term, Section 9-1-103 permitted the appointee, Judge Bowen, to “serve for the unexpired term” with no requirement of a special election. Miss.Code Ann. § 9-1-103 (Rev.2002). Under Section 23-15-365, “in the event of the death, resignation, withdrawal or removal of any candidate whose name shall have been printed on the official ballot, the name of the candidate duly substituted in the place of such candidate may be written in such blank space by the voter.” Miss.Code Ann. § 23-15-365 (Rev.2007). Because Judge Evans passed away after qualifying for the November 2, 2010, election, a write-in election was proper. Id.

¶ 11. The plaintiffs argue that this interpretation of the governing statutes is incorrect as applied to judicial candidates. They contend that, because the Legislature has imposed unique qualification requirements upon candidates for judicial office, a write-in election in which voters might supply names of unqualified persons is improper. See Miss.Code Ann. §§ 23-15-974 to 23-15-985 (Rev.2007). The Court observes that all Mississippi elections, except for run-off elections, permit voters to vote by write-in. Miss.Code Ann. § 23-15-365 (Rev.2007). The issue here is that, under Section 23-15-365, due to the death of the only candidate who had qualified before the qualifying deadline had passed, no name will be printed on the ballot, and the election will be only by write-in. In that circumstance, the election will proceed in the same manner as if no one had qualified to run as a candidate before the qualifying deadline. Miss.Code Ann. § 23-15-365 (Rev.2007).

¶ 12. This Court has ruled that “the application of the ‘write-in candidate’ provisions are appropriate in the event of a death of a candidate who has qualified to run for a particular office.” Upton v. McKenzie, 761 So.2d 167, 175 (Miss.2000) (citing McKenzie v. Boykin, 111 Miss. 256, 71 So. 382 (1916)). As the Board contends, qualifications are not exclusive to judicial office; all offices in the State of Mississippi have qualifying deadlines that require certain documentation. A write-in candidate naturally enters the race after the qualifying deadline has passed. The Legislature has provided for a write-in election to occur in the event of the death of “any candidate” who has qualified. Although the Legislature has imposed unique qualifications upon judicial candidates, it did not exclude judicial candidates from its provision for a write-in election in the event of a qualified candidate’s death. Miss.Code Ann. § 23-15-365 (Rev.2007). Therefore, we find the Board’s interpretation of Section 23-15-365 was permissible. We affirm the circuit court’s denial of in-junctive and declaratory relief.

ISSUE ON CROSS-APPEAL

¶ 13. We turn to the Board’s cross-appeal of the assessment of costs against it. The assessment of costs is a matter within the trial court’s sound discretion. United S. Bank v. Bank of Mantee, 680 So.2d 220, 224 (Miss.1996). Judge Lackey assessed costs against the Board in his bench ruling and instructed counsel for the Board to draft an order that reflected the bench ruling. The Board did not object to the cost assessment, nor did the Board file a motion to reconsider the cost assessment. Therefore, we find that this issue was not preserved for appeal. See Johnson v. Gray, 859 So.2d 1006, 1015 (Miss.2003).

¶ 14. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., LAMAR AND KITCHENS, JJ., CONCUR. RANDOLPH, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED IN PART BY PIERCE, J. PIERCE, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED IN PART BY RANDOLPH, J. DICKINSON, J., NOT PARTICIPATING.

RANDOLPH, Justice,

Concurring in Result Only:

¶ 15. The plaintiffs/appellants offer credible evidence that some voters (absentee ballots) in their various counties have been, and other voters (election day) will be, denied the right to timely and effective instructions on how to utilize write-in ballots; and that the manner in which the election will be held will result in mass confusion, thus thwarting the will of the people.

¶ 16. By application of two statutes dealing with vacancy and vacancy in office (including the holding of elections), the dilemma now being faced could have been prevented. Mississippi Code Section 9-1-103 is the first statute which should be examined under the facts presented. It establishes the procedure to be followed “[w]henever a vacancy shall occur in any judicial office by reason of death of an incumbent,” inter alia, granting “the Governor the authority to appoint a qualified person to fill such vacancy to serve for the unexpired term or until such vacancy is filled by election as provided in Section 23-15-849....” Miss.Code Ann. §9-1-103 (Rev.2002) (emphasis added). Applying that statute as written would have avoided the conflict posed herein and allowed all judicial candidates to abide by the Nonpartisan Judicial Election Act. See Miss.Code Ann. §§ 23-15-974 to 23-15-985 (Rev. 2007). However, compliance with other statutes is now impossible, given the election is less than one week away. Appellants are concerned that there is a distinct likelihood that the will of a majority of the people will not be expressed in this election.

¶ 17. Using the authority granted by Section 9-1-103 would have allowed all of the judicial candidates time to fulfill other statutory and judicial code obligations and requirements; provided each of the candidates an opportunity to conduct a meaningful campaign; and, most importantly, allowed the electorate ample time to vet the credentials and qualifications of the respective candidates before being required to express their will at the ballot box. Rather, the electorate has been issued a mandate by the State Board of Election Commissioners (“Board”) that expressing their will must be accomplished by writing in a candidate’s name.

¶ 18. The “Write-in Space” statute, Mississippi Code Section 23-15-365, requires leaving “on each ballot one (1) blank space under the title of each office to be voted for, and in the event of the death, ... of any candidate whose name shall have been printed on the official ballot, the name of the candidate duly substituted in the place of such candidate may be written in such blank space by the voter.” Miss. Code Ann. § 23-15-365 (Rev.2007) (emphasis added). Based on the pleadings and briefs filed, the name of the deceased incumbent, the Honorable Robert Evans, is not printed on the ballot. The Write-in Space statute passed by the Legislature was designed to offer all voters an alternative to the candidate whose name is listed. In the case before us, there is no other name on the official ballot. Therefore, Section 23-15-365 should not apply.

¶ 19. Nonetheless, the Board interpreted its duties and responsibilities contrary to the interpretation advocated by the appellants. Although I disagree with the decision of the Board, I cannot disregard that my esteemed colleagues, charged with analyzing the same issues, have, after a spirited debate of the pros and cons of each parties’ position, reached a different disposition. Thus, one issue becomes abundantly clear (beyond all dispute), that being that the decision of the Board was “fairly debatable,” which is “the antithesis of arbitrary and capricious.” Edwards v. Harrison County Bd. of Supervisors, 22 So.3d 268, 274 (Miss.2009) (quoting Town of Florence v. Sea Lands, Ltd., 759 So.2d 1221, 1223 (Miss.2000)).

¶20. Perhaps, if faced with a similar dilemma in the future, the Board should consider the positions advocated by the local elected officials who brought this action. However, our standard of review does not allow reversal of an administrative decision simply based upon whether we agree or disagree with the branch or agency empowered to make the decision. Therefore, I acquiesce in the Court’s opinion dubitante on the question of whether the proper statutes were utilized.

PIERCE, J., JOINS THIS OPINION IN PART.

PIERCE, Justice,

Concurring in Result:

¶21. Our decision today is troubling because its immediate result may be chaos. However, I agree that the Election Commission’s interpretation is permissible under our limited review.

¶ 22. The Majority notes that, effectively, no person qualified to run in this election and finds that in such a circumstance, the “write-in” provisions of Mississippi Code Section 23-15-365 are applicable. This section is implicated only when a candidate is removed from contention but whose name remains printed on the ballot. So, I cannot agree with the Majority that Section 23-15-365 mandates a write-in election.

¶ 23. However, Mississippi Code Section 23-15-1015 mandates that a regular election occur. Miss.Code Ann. § 23-15-1015 (Rev.2007) While no statutory process may specifically address the rare circumstances of having no person has qualified to have his or her name printed on the ballot, we still face the question of whether the Election Commission reasonably interpreted the mandate in Section 23-15-1015 that an election be held. Giving the Election Commission the appropriate deference (and despite my reservations about the instant result of this decision) I cannot call its determination unreasonable.

¶24. Judge Evans’s death has left a void in Mississippi’s judicial system. Compounding this misfortune, the petitioners have no good way to select his replacement. Post-election challenges ranging from candidate qualifications to misspelled names will be no surprise. However, the law requires a general election to occur, and the Election Commission has chosen this method in their particularized wjsdom. So, I concur in the result.

RANDOLPH, J., JOINS THIS OPINION IN PART.

      . See Canon 5 of the Mississippi Code of Judicial Conduct.

      . See Miss.Code Ann. § 23-15-365 (Rev. 2007).

      . This possibility is not likely lost on our Secretary of State with his notoriously mispronounced first name.


author: GRAVES, Presiding Justice, PIERCE, Justice,

text:
    Anthony Lee TUCKER v. STATE of Mississippi.
    No. 2008-CT-00762-SCT.
    Supreme Court of Mississippi.
    Nov. 4, 2010.

      Office of Indigent Appeals by Leslie S. Lee, Jackson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
   GRAVES, Presiding Justice,

for the Court:

¶ 1. This appeal arises from the conviction of Anthony Lee Tucker for possession of stolen property arising from a burglary of Foot Gear in West Point, Mississippi. After Tucker’s conviction, the trial court amended Tucker’s indictment to add habitual-offender status. Tucker was sentenced to serve ten years in the custody of the Mississippi Department of Corrections (MDOC) and to pay a fine of $10,000 upon his release. The initial appeal was decided by the Court of Appeals, which affirmed Tucker’s conviction and sentence. Tucker v. State, 47 So.3d 164, 168-69 (Miss.Ct.App.2009). We find that the Court of Appeals erred when it found Tucker’s indictment sufficient to charge the crime for which he was convicted, and we reverse as to this issue.

FACTS AND PROCEEDINGS BELOW

¶ 2. Because our disposition of this case rests solely upon the sufficiency of Anthony Tucker’s indictment, our recitation of the substantive facts will be brief, and we shall focus primarily on the language of the indictment and the relevant law.

¶ 3. Anthony Lee Tucker was indicted for receiving stolen property in violation of Mississippi Code Section 97-17-70 (Rev. 2006). Tucker argues that the Court of Appeals erred in finding that Tucker’s indictment was sufficient, even though the stolen property allegedly possessed by Tucker was not set forth with sufficient particularity. Tucker’s indictment stated:

On or about the 18th day of October, 2005, in the County aforesaid, [Anthony Tucker] did unlawfully, willfully and fe-loniously, receive or possess the personal property of Haresh Khiantani d.b.a. Foot Gear, to-wit: athletic apparel, said property having a total value in excess of $500.00, and having been feloniously taken away from the said Haresh Khian-tani d.b.a. Foot Gear, and further that the said ANTHONY TUCKER knew or should have know at the time of the receiving or possessing of said property that said property had been so felo-niously taken, in violation of MCA § 91-17-70; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Mississippi.

¶ 4. Specifically, Tucker asserts that “athletic apparel, said property having a total value in excess of $500.00” does not describe the stolen property allegedly in his possession with sufficient particularity as required by law. Tucker urges that, because of this insufficiency in the indictment, he was unable adequately to prepare his defense and that he would not be able to defend himself by pleading double jeopardy in the event of some subsequent prosecution. Tucker claims that this insufficiency in the indictment infringes upon his fundamental right to due process, which renders the indictment insufficient as a matter of law.

¶ 5. The State argues that because Tucker’s indictment listed the owner, the class or item, and the value of the “athletic apparel” that his indictment was legally sufficient. The State further argues that the indictment was legally sufficient to put Tucker on notice of the charges against him.

¶ 6. The Court of Appeals found Nguyen v. State, 761 So.2d 873 (Miss.2000), to be controlling on the issue. Tucker, 47 So.3d at 180-81. However, the Court of Appeals distinguished Nguyen from this case by finding that the property in Nguyen’s indictment was described by six different classes, while the property in Tucker’s indictment was described by only one class — “athletic apparel.” Id. at 175-76. The Court of Appeals found this to be a factor supporting the sufficiency of the indictment; and therefore, Tucker was sufficiently informed of the charge against him to allow him the opportunity to prepare his defense. Id. at 176.

¶ 7. Tucker moved for rehearing, which the Court of Appeals denied. Id. at 167. Tucker then filed a petition for writ of certiorari, which we granted.

STANDARD OF REVIEW

¶ 8. Although Tucker did not object to the indictment at trial, he did argue on appeal that the indictment insufficiently described the property at issue, such that he was unable to prepare a defense to a charge of receiving stolen “athletic apparel.” Such objections to the sufficiency of the indictment may be raised for the first time on appeal. Havard v. State, 928 So.2d 771, 801 (¶ 59) (Miss.2006). “The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by the Court.” Nguyen, 761 So.2d at 874 (¶ 3). Therefore, as a matter of law, the standard of review is de novo. Jones v. State, 993 So.2d 386, 394 (¶ 19) (Miss.Ct.App.2008) (citation omitted).

STATEMENT OF THE LAW

¶ 9. On writ of certiorari, we also find Nguyen to be controlling. But the Court of Appeals found Nguyen to be distinguishable from this case in that Tucker’s indictment was sufficient to inform him of the nature of the charge against him. We disagree.

¶ 10. In Nguyen, this Court identified the issue as whether the indictment described the stolen property with sufficient particularity to inform the defendants of the nature of the charges against them, to afford them the opportunity adequately to prepare their defense, and to allow them to protect themselves against future jeopardy by some subsequent prosecution. Nguyen, 761 So.2d at 876.

¶ 11. In Nguyen, the indictment stated: That in Jackson County, Mississippi, on or about December 12, 1997, [Nguyen and Le] did unlawfully, willfully and fe-loniously receive 114 items, including televisions, C.D. players, VCR’s, cameras, tools and microwaves, of the value of two hundred and fifty dollars ($250.00) or more, the personal property of multiple owners, knowing the said property to have been stolen feloniously, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

Nguyen, 761 So.2d at 874 (¶ 2). This Court found that the description of the stolen goods — “114 items, including televisions, C.D. players, VCR’s, cameras, tools and microwaves, of the value of two hundred fifty dollars ($250.00), or more .... ” — was insufficient because it did not state the essential facts constituting the offenses charged and did not inform the appellants of the nature of the charges against them. Id. at 877 (¶ 12). This Court reasoned that “the indictment ... contained] six classes of items, none of which contain any limiting modifiers.... The indictment [also] does not describe how many TV’s, VCR’s, cameras, tools and microwaves were received.” Id. at 877 (¶ 12) (emphasis added). Therefore, this Court reversed the conviction and sentence and quashed the indictment.

¶ 12. In the present case, the Court of Appeals found Nguyen to be distinguishable in that the property in Nguyen was composed of six different classes, while the property in Tucker was composed of one class, “athletic apparel.” Tucker, 47 So.3d at 175-76 (¶ 31). The Court of Appeals also found that the stolen property Tucker allegedly constructively possessed — caps, shirts, tennis shoes and jeans — can be and is classified as “athletic apparel.” Id. at 175-76 (¶ 31). Judging that this factor supported sufficient particularity as to Tucker’s indictment, the Court of Appeals found the indictment “sufficient to inform Tucker of the charges against him such that he had an adequate opportunity to prepare his defense.” Id. at 176 (¶ 32).

¶ 13. While the Court of Appeals may be correct in finding that some of the stolen property can be classified as “athletic apparel,” it is clear that not all the items recovered fit into this classification. The record reveals that the approximately 140 items recovered from the premises where Tucker was temporarily residing consisted of athletic apparel, jeans, shoes, boots, caps, blouses, t-shirts, and warm-up jackets. Clearly, jeans, boots, and blouses are not considered “athletic apparel.” Furthermore, Nguyen suggests that the indictment in that case should have contained “limiting modifiers” or the quantity of each item alleged to have been received or possessed by Nguyen. Nguyen, 761 So.2d at 877 (¶ 12). Thus, Tucker’s indictment is less descriptive and more flawed than Nguyen’s, in that Tucker’s indictment should have described, by classification and/or quantity, the stolen property he was being charged with receiving and/or possessing.

¶ 14. This Court has stated that all questions regarding the sufficiency of an indictment are governed by Rule 2.05 of the Uniform Rules of Circuit and County Court Practice, which sets forth seven elements that any indictment must contain. Armstead v. State, 503 So.2d 281, 283 (Miss.1987). Rule 7.06 states:

The indictment upon which the defendant is to be tried shall be a plain, concise and definite statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. An indictment shall include the following:
1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment was brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury; and
7. The words “against the peace and dignity of the state.
The court on motion of the defendant may strike from the indictment any sur-plusage, including unnecessary allegations and aliases.
[Adopted effective May 1, 1995; amended August 26,1999.]

URCCC 7.05 (emphasis added).

¶ 15. It is clear that Tucker’s indictment meets the seven elements required by Uniform Rule 7.06. However, Tucker’s indictment does not contain the “essential facts constituting the offense charged” to inform him of the nature of the charge against him. This Court finds that the language in Tucker’s indictment — “athletic apparel, said property having a total value in excess of $500.00” — does not describe the stolen property with sufficient particularity to inform Tucker of the nature of the charges against him so that he may be allowed adequately to prepare his defense and so that he may protect against being placed in future jeopardy.

CONCLUSION

¶ 16. The language used in Tucker’s indictment — “athletic apparel, said property having a total value in excess of $500.00,” does not adequately describe with sufficient particularity as required by Mississippi rules and precedent the stolen property allegedly received. Therefore, we reverse and render the Court of Appeals’ finding that Tucker’s indictment was sufficient to inform him as to the charges against him so that he had an adequate opportunity to prepare a defense, as well as the conviction and sentence of the Clay County Circuit Court.

1117. REVERSED AND RENDERED.

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

PIERCE, Justice,

Dissenting:

¶ 18. Eight days after the Foot Gear in West Point had been relieved of an estimated $109,000 of its inventory and equipment, police, operating on an anonymous tip, discovered numerous articles of brand-new clothing and athletic shoes at the residence of Anthony Tucker. Tucker’s indictment charged that he did “unlawfully, willfully and feloniously, receive or possess the personal property of Haresh Khiantani d.b.a. Foot Gear, to-wit: athletic apparel, said property having a total value in excess of $500.00.” Tucker was convicted, and the Majority would overturn the conviction on the theory that the indictment’s language was insufficiently particular. I dissent.

¶ 19. In Nguyen v. State we said that the stolen property allegedly received must be described with sufficient particularity to allow the appellants to be (1) informed of the nature of the crime of which they are accused, so that they can (2) properly prepare their defenses, and so that they will be (3) adequately shielded from being placed in future jeopardy. The best way to examine this case while remaining true to our precedent in Nguyen is to ask whether this indictment accomplished those protections for Tucker.

Does the indictment inform Tucker of the nature of the crimes with which he has been charged?

¶ 20. Tucker was arrested on October 18, when police found approximately 140 items of athletic apparel at his residence, only eight days after property estimated in excess of $100,000 was taken from Foot Gear. His indictment charged that he had feloniously possessed “the personal property of Haresh Khiantani d.b.a. Foot Gear, to-wit: athletic apparel[.]” We have said that an indictment that is in compliance with the rules and provides actual notice is sufficient to inform the defendant.

¶ 21. The “essential” facts — or those “indispensably necessary” — are that Anthony Tucker feloniously possessed the personal property of Haresh Khiantani d.b.a. Foot Gear in excess of $500 and that he knew or should have known that the same had been feloniously taken. This is all the State needed to prove. These elements were all present in the indictment. This is a plain, clear statement that Tucker is accused of possessing the merchandise stolen from Foot Gear. Further discussion is not merited.

Did the indictment lack specificity so as to prejudice Tucker’s ability to prepare a defense?

¶ 22. The major purpose of any indictment is to furnish the accused a reasonable description of the charges so an adequate defense may be prepared. I fail to see how greater specificity would assist Tucker in his preparation of a defense. The Majority is unable to articulate how greater specificity would assist Tucker in his preparation of a defense. Whether or not blue jeans are athletic apparel has no discernable impact on Tucker’s preparation of his defense.

¶23. The Majority makes hay of a “suggestion” in Nguyen that the indictment in that case should have contained “limiting modifiers.” In Nguyen, we quashed an indictment which charged that the defendants had feloniously received “114 items, including televisions, C.D. players, VCR’s, cameras, tools and microwaves ... the personal property of multiple owners [.]” In considering whether an indictment is fatal if it “does not state who owned the allegedly stolen property,” we signalled that such a flaw was a factor in determining the precision of an indictment as much as how many categories of goods were listed. We also noted the defects of the inclusive language in the indictment. The defendants in Nguyen were on notice only that they were accused of stealing 114 objects from a class of persons that, rhetorically, could have been just as large.

¶ 24. In this case, the class of property identified in the indictment is limited to the athletic apparel owned personally by Haresh Khiantani in his role as owner of Foot Gear. While the Majority argues that the indictment is insufficient because blue jeans are not athletic apparel, the defendant had garbage bags full of brand new clothes and lines of new white shoes in his residence when he was arrested. By the Majority’s logic, a defendant indicted for absconding with a great amount of groceries from the Piggly Wiggly can convince us to review his indictment because he stole an unindicted quantity of aluminum foil in addition to a great amount of groceries.

Did the indictment lack specificity, subjecting Tucker to double jeopardy?

¶25. This is, perhaps, the Majority’s strongest argument. Imprecise indictments leave open the opportunity to for second bites at the apple. Had the jury found Tucker not guilty, the State would have had rhetorical room to charge him with possession of the allegedly stolen blouses and blue jeans. However that rhetorical possibility also was present in Daniel v. State, in which we found “a diamond ring,” “one mule and one horse,” and “one suit of clothes” to be sufficient description of the property. A “neat calf’ was sufficient in Miller v. State, and “six sacks of ammonium nitrate” was precise enough in Jones v. State.

¶ 26. We cannot and should not require a perfect description of the spokes of metaphorical snowflakes to the exclusion of all other items. We require that the State describe the property with reasonable certainty. I do not think that this description of Foot Gear’s inventory — a great deal of which was found in the defendant’s possession — is uncertain at all. And I suspect that, were a trial court to use the breadth of the indictment to subject Tucker to double jeopardy, we would call that hypothetical decision unreasonable.

¶ 27. Because the indictment instructed Tucker of the nature of the charges against him and so did not prejudice his preparation of a defense or subject him to double jeopardy, I dissent.

CARLSON, P.J., RANDOLPH AND LAMAR, JJ., JOIN THIS OPINION.

      . Tucker had been convicted of six drug-related offenses in Wisconsin in 2000 and was paroled in 2005.

      . A more detailed recitation of the facts may be found in the Court of Appeals’ decision in Tucker, 47 So.3d at 168-73.

      . Rule 2.05 of the Uniform Rules of Circuit and County Court Practice has been amended and is now Rule 7.06 of the Uniform Rules of Circuit and County Court Practice.

      . Nguyen v. State, 761 So.2d 873, 876 (Miss.2000).

      . Tucker v. State, 47 So.3d 164, 169 (¶¶ 6, 8) (Miss.Ct.App.2010).

      . Id. at 174 (¶ 28).

      . McNeal v. State, 658 So.2d 1345, 1350 (Miss.1995).

      . Black’s Law Dictionary 379 (6th. ed.1991).

      . Brown v. State, 890 So.2d 901, 918 (Miss.2004).

      . Having seen the riders at the Dixie National Rodeo has, I admit, colored my opinions on accurate garment classification enough that I question my brother justice’s quick disregard of whether blue jeans, boots, and blouses are athletic apparel. Calamity Jane might have disagreed, as well.

      . Nguyen, 761 So.2d at 874 (emphasis added).

      . Nguyen, 761 So.2d at 877.

      . Id. (saying “including” instead of “comprised of”).

      . Tucker, 47 So.3d at 172 (¶ 6).

      . Daniel v. State, 212 Miss. 223, 54 So.2d 272, 273 (1951).

      . Miller v. State, 243 So.2d 558 (Miss.1971).

      . Jones v. State, 215 Miss. 355, 60 So.2d 805 (1952).

      . Nguyen, 761 So.2d at 873.


author: GRAVES, Presiding Justice,

text:
    CORPORATE MANAGEMENT, INC. v. GREENE RURAL HEALTH CENTER BOARD OF TRUSTEES, Greene County, Mississippi, John Marshall Eubanks, Tommy Roberts and Marion Pierce.
    No. 2009-CA-00681-SCT.
    Supreme Court of Mississippi.
    Nov. 4, 2010.
    See also 10 So.3d 424 and 23 So.3d 454.

      Darren E. Gray, Wiggins, attorney for appellant.
    Seth Christopher Hall, Heber S. Simmons, III, Ridgeland, David M. Ott, Hat-tiesburg, Douglas G. Mercier, Christopher Garrett Henderson, Ridgeland, attorneys for appellees.
    Before GRAVES, P.J., LAMAR and KITCHENS, JJ.
   GRAVES, Presiding Justice,

for the Court:

¶ 1. A long history of litigation involves the management of a county hospital and nursing facility by Corporate Management, Inc. (CMI), a medical management company, and Greene County, Mississippi, through its Board of Supervisors and Board of Trustees (Trustees). CMI now appeals from a March 9, 2009, order, in which the special chancellor determined that it had limited jurisdiction to enforce the terms of the Transition Order, and that certain provisions identified in the Transition Order required clarification. We find that the special chancellor correctly found that it had limited jurisdiction to hear Greene County’s Motion for Contempt and for Damages. Further, this Court finds that the special chancellor did have the authority to hold a hearing outside the chancery district in which the matter was filed.

FACTS AND PROCEEDINGS BELOW

¶ 2. The original litigation in this matter stems from two contracts entered into by the Trustees of the Greene County Health Center (“GRHC Trustees” and “GRHC”) and Corporate Management, Inc. (CMI) for the management of Greene County’s community hospital and nursing home in early 2005. Ultimately, this Court found the contracts to be invalid. Greene County v. Corporate Mgmt., Inc., 10 So.3d 424, 433 (Miss.2009).

¶ 3. Greene County then entered into a long-term lease with George Regional Health System for the management of Greene County’s community hospital and nursing home. On July 2, 2008, the special chancellor entered a judgment which set out the responsibilities and duties of Greene County and CMI. Paragraph 7 provided that “the parties shall attempt to agree upon and submit an Agreed Transition Order setting forth the necessary terms and conditions that will control the expiration of the management agreement between GRHC and CMI, and the initiation of the lease agreement with George Regional Health System.”

¶ 4. On July 23, 2008, the special chancellor entered a Transition Order detailing the terms and conditions concerning GRHC’s transfer of management. The Transition Order stated, in part:

In addition, at 9:00 a.m. on Wednesday, July 30, CMI shall allow GRHC and George Regional complete access to inspect and copy any and all other books, records, contracts, lease, etc. of GRHC or associated with CMI’s management of GRHC, specifically including, but not limited to, all computers and computer systems, their locations, operations and any access codes necessary to obtain information from said computers or systems. Such access is not to unreasonably interfere with the regular business and workflow of the GRHC facility.
Any person or entity who interferes with proper patient care or violates the terms of this Transition Order shall be subject to the contempt powers of the Chancery Court of Greene County, Mississippi.

¶ 5. On January 26, 2Q09, Greene County filed its Motion of Greene Rural Health Center Board of Trustees and the Board of Supervisors of Greene County for Contempt and for Damages, alleging that CMI had violated the court’s transition order which required CMI to provide all books, records, and other information. Thereafter, CMI filed its response to Greene County’s motion on February 9, 2009, and its amended response on February 17, 2009, contesting the cburt’s jurisdiction.

¶ 6. Specifically, CMI argued that (1) the special chancellor lacked the authority to preside over Greene County’s motion because the matter for which he was appointed had ended in a final judgment, and (2) Rule 81 of the Mississippi Rules of Civil Procedure requires service of time-and-date-specific summons which Greene County has never served. On February 13, 2009, the trial court ordered a hearing to be held in the Panel Courtroom at the Gartin Justice Building, Jackson, Mississippi, on February 25, 2009.

¶ 7. At the hearing, the trial court took up CMI’s motion for continuance and motion for recusal before hearing Greene County’s motion for contempt. Initially and throughout the hearing, CMI alleged that the trial court did not have jurisdiction, and that CMI was present only on a “special appearance.” The trial court denied both CMI’s motion for continuance and motion for recusal. Greene County was then allowed to proceed on its motion for contempt. During Greene County’s case-in-chief, CMI cross-examined Greene County’s only witness. After Greene County rested its case-in-chief, CMI decided to call its own witness and presented testimonial evidence alleging that CMI had complied with the trial court’s Transition Order. CMI also gave closing remarks regarding compliance with the Transition Order. After hearing arguments and testimony from witnesses for both parties, the trial court continued the matter until its order filed on March 9, 2009.

¶ 8. On March 9, 2009, the trial court entered its order, granting in part and denying in part Greene County’s motion for contempt. Specifically, the trial court found that its jurisdiction was limited to enforcement of the terms of the Transition Order, and that Greene County’s request for damages was beyond the court’s jurisdiction. In addition, the trial court did not hold CMI in contempt, but rather, it clarified certain terms of the Transition Order relating to the transfer of information from CMI to George Regional Health System and Greene County.

¶ 9. Subsequently, CMI filed its Motion to Reconsider, which was denied. CMI now appeals the trial court’s March 9, 2009, order.

ANALYSIS

¶ 10. CMI raises two issues on appeal. CMI argues that (1) the trial court lacked jurisdiction to hear Greene County’s motion for contempt and for damages, and, in the alternative (2) that the trial court exceeded its authority when it ordered the parties to conduct a hearing outside the chancery court district in which the matter was filed and to which the special chancellor was appointed.

I. Whether the trial court had jurisdiction to hear Greene County’s motion for contempt and damages.

¶ 11. Upon review, this Court will not disturb the findings of a chancellor unless “manifestly wrong, clearly erroneous or a clearly erroneous legal standard was applied.” Isom v. Jernigan, 840 So.2d 104, 106 (Miss.2003) (quoting Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990)). However, the trial court’s interpretation and application of the law is reviewed de novo. Isom, 840 So.2d at 106.

¶ 12. CMI argues that Rule 81 of the Mississippi Rules of Civil Procedure governs, and that it was entitled to service of process before being subjected to the trial court’s jurisdiction. CMI fails to realize that, although “the special chancellor ordered that the second amended final judgment be a Rule 54(b) final judgment, the trial court retained jurisdiction for the purpose of enforcing its judgment.” Corporate Mgmt., Inc. v. Greene County, 23 So.3d 454, 458 (Miss.2009).

¶ 18. Rule 5 of the Mississippi Rules of Civil Procedure provides, in part: “Except as otherwise provided in these rules, ..., every pleading subsequent to the original complaint, ... shall be served upon each of the parties.” M.R.C.P. 5(a). “This rule presupposes that the court has already gained jurisdiction over the parties.” M.R.C.P. 5 cmt. Because the court retained jurisdiction for the purpose of enforcing its judgment, Rule 5 of the Mississippi Rules of Civil Procedure applies. Further, Greene County’s motion for contempt is a pleading subsequent to CMI’s original complaint and, therefore, was subject to the service requirements of Rule 5(a).

¶ 14. Rule 5(b) provides the method by which pleadings and other papers may be served under Rule 5(a). Rule 5(b) provides, in part:

Whenever under these rules service is required or permitted to be made upon a party who is represented by an attorney of record in the proceedings, the service shall be made upon such attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him; or transmitting it to him by electronic means; or by mailing it to him at his last known address, or if no address is known, by leaving it with the clerk of the court.

M.R.C.P. 5(b).

¶ 15. At the time Greene County filed its motion for contempt and for damages, CMI was still “a party who is represented by an attorney of record in the proceedings.” Greene County effected service upon CMI by mailing its motion, via United States mail, to counsel for CMI, which is in compliance with the requirements of Rule 5(b). Thus, Greene County properly served CMI under Rule 5(b). Therefore, the trial court had jurisdiction to hear Greene County’s motion for contempt, and no new service of process was needed.

¶ 16. Furthermore, Rule 70 of the Mississippi Rules of Civil Procedure states:

(a) If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party.
(d) The court may also in proper cases adjudge the party in contempt.

M.R.C.P. 70. The comment to Rule 70 provides that “the purpose of Rule 70 is to provide ample power to the courts for dealing effectively with parties who seek to thwart judgments by refusing to comply with orders or perform specific acts. “M.R.C.P. 70 cmt. As noted above,” the special chancellor ordered that the second amended final judgment be a Rule 54(b) final judgment, [and] the trial court retained jurisdiction for the purpose of enforcing its judgment.” Corporate Mgmt., Inc. v. Greene County, 23 So.3d 454, 458 (Miss.2009). Thus, we find that the trial court was vested with the authority to retain jurisdiction for the purpose of enforcing its judgment under Rule 70 of the Mississippi Rules of Civil Procedure.

II. Whether the trial court had the authority to order the parties to conduct a hearing outside the chancery court district in which the matter was filed and to which the special chancellor was appointed.

¶ 17. CMI argues that the special chancellor did not have authority to conduct a hearing outside the chancery district in which the matter was filed, and that the matter should be heard in Greene County, Mississippi, not Jackson, Mississippi. In support of its position, CMI cites Adams v. Kyzer, 61 Miss. 407 (1883).

¶ 18. In Adams, notice was served on the complainants that a motion to dissolve an injunction, in a cause pending in the tenth judicial district, would be heard before the chancellor of the tenth judicial district, in Jackson, which, at the time, was in the ninth judicial district. Adams, 61 Miss. 407. The chancellor in this particular case was acting, as he thought, pursuant to an agreement between counsel for both parties, that the question of jurisdiction would be waived. However, this Court held:

It was erroneous to hear the motion to dissolve the injunction and sustain it at a place out of the district in which the suit was pending. Chancellors are appointed for chancery districts, and are confined to them in performance of judicial acts, except as authorized by law, and we are not aware of any law providing for hearing a motion to dissolve an injunction outside of the district in which the cause is pending.

Id.

¶ 19. However, based on the unique facts and circumstances of this case, this argument is without merit. On February 25, 2009, the special chancellor held a hearing on Greene County’s motion for contempt, CMI’s motion for recusal and CMI’s motion for continuance, in Jackson. Greene County alleged that CMI had failed to comply with the trial court’s Transition Order. CMI alleged that the trial court lacked jurisdiction to hear the matter and that the hearing should have been held in Greene County, where the matter was filed. CMI argued that, because the hearing was held in Jackson, instead of Greene County, CMI was not able to call particular witnesses and present evidence and, thus, was deprived of due process.

¶ 20. While CMI alleges that it was denied due process by not being able to call particular witnesses and present evidence, CMI fails to recognize Mississippi Code Section 9-5-85, which states that the chancery courts of this State have the power to summon or subpoena any witness, whose appearance in court may be deemed necessary for any purpose, whether such witness resides in the same county or any other county. Miss.Code Ann. § 9-5-85 (Rev.2002). Thus, prior to the hearing, CMI could have requested the chancery court to issue subpoenas for the witnesses it expected to call, but did not.

¶ 21. In addition, the special chancellor in this case did not transfer venue in this matter. The special chancellor held only one hearing in Jackson, and it was held at the convenience of counsel for CMI. Moreover, the special chancellor did not find any of the parties in contempt and clarified only certain provisions of the Transition Order relating to the transfer of information from CMI to George Regional and Greene County. Therefore, this Court finds that, based on the unique facts and circumstances of this case, CMI’s argument is without merit.

CONCLUSION

¶ 22. Because CMI was properly served under Rule 5 of the Mississippi Rules of Civil Procedure and because Mississippi Rule of Civil Procedure 70 provided the trial court with the authority to retain jurisdiction for the enforcement of its orders, this Court finds that the special chancellor did have jurisdiction to hear Greene County’s motion for contempt. In addition, we find that CMI’s assignment of error that the special chancellor was without authority to hear the matter outside the sixteenth chancery district is without merit. Accordingly, the trial court’s order is affirmed.

¶ 23. AFFIRMED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, AND CHANDLER, JJ., CONCUR. DICKINSON, J., CONCURS IN RESULT ONLY. PIERCE, J., NOT PARTICIPATING.

      . Corporate Management, Inc. is incorporated in Gulfport, Mississippi.

      . Greene County, Miss., John Marshall Eubanks, Tommy Roberts and Marion Pierce v. Corporate Mgmt. Inc., 10 So.3d 424 (Miss.2009); see also Corporate Mgmt., Inc. v. Greene County, Miss., 23 So.3d 454 (Miss.2009).

      . For a more detailed recitation of the facts see Greene County, Miss., John Marshall Eubanks, Tommy Roberts and Marion Pierce v. Corporate Mgmt., Inc., 10 So.3d 424 (Miss.2009); see also Corporate Mgmt., Inc. v. Greene County, Miss., 23 So.3d 454 (Miss.2009).

      . On February 17, 2009, CMI also filed a motion to continue the hearing on the motion and filed a motion for recusal on February 23, 2009.

      . The trial court’s Order Setting Hearing on Motion for Contempt was filed February 17, 2009.

      . The trial court stated that it does not have jurisdiction to hear or rule on the issue of damages.

      . At the time the hearing was originally scheduled John Reeves, counsel for CMI, was involved in a high-profile federal criminal case, U.S. v. Melton. The special chancellor contacted the judge presiding over the Melton case to discuss the availability of Mr. Reeves. The special chancellor also contacted both parties in this matter to work out a time and place for the hearing. Ultimately, the special chancellor stated that the decision to hold the hearing on February 25, 2009, in Jackson, "was made more out of concern for Mr. Reeves’ schedule and the completion of U.S. v. Melton trial....”