author: COOKS, Judge. PETERS, J.,

text:
    STATE of Louisiana v. Robert James JACOBS.
    No. 11-363.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Brenda Williams.
    James C. Downs, District Attorney, Numa V. Metoyer, Assistant District Attorney, Alexandria, LA, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   COOKS, Judge.

_JjThe facts of this case indicate on the morning of May 2, 2008, a dispute began between the victim, Marcus Malone, and his sister, Kristy Jacobs. Mrs. Jacobs left the residence. After learning of the argument, Defendant, Robert James Jacobs, decided to leave work and return to the residence. When he arrived at the residence, Mr. Malone was present pacing in the yard. Mr. Jacobs went inside and began to gather his family’s belongings to put in the trunk of a car. In the trunk of his car was a rifle. He made several trips inside the residence to retrieve his family’s belongings while Mr. Malone paced about the yard. At some point, while he was loading his family’s belongings into the car, Mr. Jacobs alleged that Mr. Malone had a gun and was approaching him, so he pulled the .22 rifle from the trunk of the car and fired it at Mr. Malone. The incident resulted in permanent harm to the victim, leaving him a quadriplegic. Mr. Jacobs denied having a gun, and no other gun was found at the residence.

On November 17, 2009, the State charged Defendant with one count of aggravated second degree battery. After Defendant’s trial, the jury returned a responsive verdict of “Guilty of Second Degree Battery,” in violation of La.R.S. 14:34.1. Subsequently, the district court conducted a sentencing hearing and ordered Defendant to serve five years at hard labor with credit for time served.

Defendant now appeals. For the following reasons, we affirm Defendant’s conviction and sentence.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find Defendant was not informed of the two-year time limit for filing post-conviction relief as required by La. Code Crim.P. art. 930.8. Thus, the district court is directed to inform Defendant of the provisions of Article 930.8 by sending appropriate 12written notice to Defendant within ten days of the rendition of this opinion and to file written proof that Defendant received the notice in the record of the proceedings. See State v. Fontenot, 616 So.2d 1353 (La.App. 3 Cir.), unit denied, 623 So.2d 1334 (La.1993); State v. Courtney, 99-1700 (La.App. 3 Cir. 5/3/00), 761 So.2d 112.

ASSIGNMENT OF ERROR NO. 1

Defendant argues in his first assignment of error the following:

The trial court erred by failing to declare a mistrial sua sponte and in the alternative by failing to declare a mistrial on motion of the defendant under the provisions of Code of Criminal Procedure Article 775. The loss of critical evidence fatally impaired a fair trial, including the revelation of photographs for the first time during trial and the loss of impeachment evidence that would have supported reasonable doubt. Alternatively, the verdict is based on insufficient evidence considering the impact of lost exculpatory materials and must be reversed as in violation of Due Process of Law.

A. Sufficiency of the Evidence.

Though Defendant phrases part of this assignment of error as an insufficiency of the evidence claim, Defendant does not brief this issue. His brief fails to argue that there was insufficient evidence to support his conviction or that the State failed to adequately prove any element of second degree battery. Therefore, under Uniform Rules—Courts of Appeal, Rule 2-12.4, this specification of error is considered to be abandoned.

B. Mistrial/Due Process.

Defendant contends the record shows that the investigation of the crime and collection of evidence was severely deficient. The State mishandled, misplaced, and lost items in evidence. He argues, even without any malicious intent, the loss of evidence prejudiced his case. Defendant asserts this is evident because the prosecution was unable to provide the defense with a large number of crime scene photographs until midway through trial. Defendant also urges that the prejudice to his case was demonstrated by the loss of the audio recordings of the statements | ogiven by witnesses present at the crime scene. He argues this deprived the defense of evidence that would have allowed it to impeach the prosecution’s witnesses at trial. Defendant contends, therefore, that the State was allowed to proceed with an unfair advantage at trial, and there can be no confidence in the jury verdict. Defendant further asserts the loss of evidence violated his due process rights because the reckless disregard for procedure and preservation of the evidence did not fit within the good faith exception set forth by the Supreme Court in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

The State responds that the trial court determined the defense had not been prejudiced in a manner sufficient to support a mistrial. The decision rests on the sound discretion of the trial court and cannot be overturned absent an abuse of that discretion under State v. Ennis, 03-1491 (La.App. 3 Cir. 7/7/04), 877 So.2d 300.

The State points out that it was not aware of the existence of the photographs until trial was underway. The State adds that the prosecution and the defense discovered the photographs contemporaneously and that they were entered into evidence without objection by the defense. The State maintains the defense was not prevented from impeaching the witnesses because transcripts of the statements were available for cross-examination purposes, although the digital recordings had been purged. Finally, the State asserts because none of the evidence was exculpatory in nature, providing the evidence earlier would not have altered the outcome of the trial.

Defendant’s first reference to the trial transcript that concerns the missing materials occurred during the direct examination of Officer Ephraim Keller. The colloquy appears immediately following the officer’s testimony that Defendant had given a voluntary statement to the police, wherein he claimed that he had shot the victim in self-defense:

|4Q. Okay. And were you aware of a statement that was taken from Mr. Jacobs by Assistant Chief Jeter?
A. Jeter told me did a, ah, written statement and he said he also recorded a statement from ‘im.
Q. And do you have any knowledge whatsoever as to the whereabouts of those statements?
A. No.
Q. All right. What ... do you, know, ahm, are the statements lost?
A. Yeah. They got to be, ‘cause I haven’t seen ‘im, and they was ... all of that was supposed to’ a been with the stuff we turned in.
Q. Okay. And at the time that those things were tendered to the Rapides Parish District Attorney’s Office, all right, there was no statement by the Defendant in there, was there?
BY MR. MURRY: Objection. Your Honor, I don’t ... well, I (trails off). Ah, he may have ... if he could just ask ‘im if he knows whether they were in there or not.
BY THE COURT: I’m gonna overrule the objection.
Q. Was, was the Defendant’s statement tendered to the Rapides Parish District Attorney’s Office?
A. I couldn’t tell you if it was or not, to be honest.
Q. Right. Do you recall the first time the statement became an issue to the investigation?
A. Yeah, yeah.
Q. When was that?
A. I think the last month.
Q. Ah, maybe a month or so ago?
A. Umm, hmm.
Q. All right. And that is when you became aware that the statement wasn’t there?
A. Right.

The second transcript location cited by the defense references the cross-examination of Jessica Stelly:

LA- No sir, he didn’t have a gun.
Q. I think you said in your statement that if, if he had had it, it would’ve (interrupted)
A. I said if he would have had a gun, he would have shot him.
Q. Shot Robert.
A. Yes.
Q. Now you said, ah, when you got there ... this is your statement from May 5th, 2008. Ah, do you remember saying: “So my brother was standing right there. When we got to the corner, he told ‘er, “just stay there. Your husband right here, he right here, don’t come down this way. We pass through here, he gonna get hurt.’ ” Do you recall saying that?
A. He said she was gonna get hurt. He said if she come in the yard, he was gonna slap her. He didn’t say anything about Robert Jacobs.
Q. Could you read that, startin’ right there?
A. ‘Tour husband is ri, your husband right here. He right here. Don’t come down this way.” That’s what he said.
Q. “We pass through here, he (interrupted)
A. “We pass through here (interrupted)
Q. ... gonna get hurt.”
A. I didn’t say that.
Q. Okay. So the ... do you think they typed it wrong?
A. They had to; I didn’t say that.
Q. Okay. And did you say, on the next page, page two, ah: “My brother was talking to me about them, he was mainly saying my sister Kristy, and he said: ‘I wouldn’t hurt none of my sisters,’ he say, ‘but your husband’s standing here. Y’all think I’m playing with y’all’, and that’s what he said.” Does that sound familiar?
A. No sir.
Q. Not what you said? You didn’t say (interrupted)
A. He said (interrupted)
Q. You didn’t say that either?
IfiA. ■.. I’m a man of my f-ing word. If you come in the yard, he was gonna slap her. He said she was gonna get hurt if she come in the yard.
Q. So, I wanta give you an opportunity to see this statement and tell us (interrupted)
A. Umm hmm.
Q. ... if this is your statement. Could, ah ... would you like to read it yourself?
A. Yes sir.
Q. Okay. You wanta read it out loud?
A. “My brother was talking to me about them. He was mainly saying my sister Kristy, and he said, “I wouldn’t hurt none of my sisters”. He say, “but your husband is standing here. Y’all think I’m playing, yW, that’s what he said.” He didn’t say he was gonna do anything to Robert Jacobs. This part, y’all ... he said, your husband is standing here. He was telling her that both of them didn’t have to come in the yard at the same time. He said: “I’m a man of my word, if you come in the yard”, he was gonna slap her.
Q. Right.
A. He didn’t say nothin’ about Robert.
Q. Right. Okay. But, so you did, he did, he did say, he said: “I wouldn’t hurt none of my sisters”, he say, “but your husband is standing here, y’all think I’m playin’’.
A. He didn’t say that like, like you’re saying it.
Q. Did I read it ... did I not read the words?
A. Yeah, you read the words.
Q. Okay. Ah, and I’m not talking about what he was sayin’, I’m, I’m talking about what you told (interrupted)
A. Umm hmm.
Q. ... the Sheriffs Deputies.
BY MR. METOYER: I’d like to object, Mr. Murry is putting emphasis on the words to try to make (interrupted)
|7BY MR. METOYER: Mr. Murry is trying to place emphasis on the words to make the witness’s testimony sound different to what her testimony was.
BY THE COURT: I, my impression was he ... she’s saying she didn’t say what he’s reading to her.
BY MR. METOYER: Right. And, ah, and in the manner in which he’s reading [it] to ‘er as well.
BY THE COURT: Well, I’m not, I ... we don’t even go there is she’s saying she didn’t say what he’s reading to her.
BY MR. METOYER: Right.
BY THE COURT: So I’mma overrule the objection.
Q. Okay. So he didn’t say he was gonna hurt Robert, he might hurt Kristy, is that right?
A. He said if she come in the yard, he was gonna slap her.
Q. Okay. And, I’m looking at, this is page four now, and we’re down here, and this ... is this your statement? “He told him, he say, ah, ‘I’m a man of my word’, he say, ‘he told Kristy, if you come down here, I’m gonna hurt him’ ”. Is that what you said?
A. No sir, I didn’t say nothin’ about Robert. He did say Kristy, (interrupted)
Q. Okay.
A. ... he didn’t say anything about Robert. I never told anybody that he said he was gonna hurt Robert. He never said that.
Q. Okay.
A. He just wanted her not to come in the yard at the same time with Robert Jacobs.
Q. So, this is not the words of your statement?
A. That “him”, I said this, but I didn’t say him.
Q. Okay. Which part is not your words?
A. “Him”, I said “her”.
Q. Okay.
|SA. He was talking directly to Kristy. After Kristy backed up, he didn’t say anything else to Kristy.
Q. All right. But you did say this part, ah: “Kristy, if you come down here, I’m gonna hurt ... ”, you said that much, right?
A. Her. Yes sir.
A. He said I’m gonna hurt Kristy. He was talking to Kristy. He was gonna hurt her. I’m saying “her”, but to her it would be you. If he said it, it would be you.
Q. All right. And then did, did you say this: “He told Kristy if she come down here that somebody was gonna get hurt. He was a man of his word.”
A. Yes he did say that.
Q. So that’s a promise to hurt somebody.
A. Yes, if she come in the yard.

Defense counsel continued questioning the witness about whether she had said other things during that statement and made comments during a later statement. Ms. Stelly denied making most of the statements.

Following Ms. Stelly’s testimony, the parties discussed the missing evidence during a bench conference. The defense said it had just received twenty-two additional photographs and that nearly all of them had useful information. The State explained that it had given the defense all of the photographs it had; it was unaware that there were additional photographs. The photographs came to the State’s notice after the defense questioned Detective Jones about whether there were additional photographs. Although he was not aware of more photographs at the time, Detective Jones said he was willing to send someone to check the office and put them on disk for the defense. As a result, additional photographs were provided to both the defense and the prosecution. The State asserted there was no |9unfair surprise as the photographs just illuminated the scene and did not change the facts or the argument of the case.

When the trial court inquired how the photographs aided the defense, defense counsel responded, “I’m not trying to stop the trial. I’m not trying to get a mistrial; I don’t want a continuance.” The district court then stated that it was bothered by law enforcement’s failure to provide all of the information to the prosecutor:

It bothers me, and everybody knows this, there’s no secret, if this were a civil proceeding, you get all the information or you don’t use it at trial. Period, end of discussion. I don’t understand why this continues to happen, where we, evidence continues to appear, and they’re not providing the evidence to the DA’s Office. I don’t understand what’s going on. I have seen no evidence that there’s a conspiracy, but I, I ... it, it’s disconcerting to say the least. This is the second trial in a row I’m dealing with this type of an issue. Ah, but this information was not provided to you, I accept Mr. Metoyer at his word that he didn’t have the information, didn’t know it existed.

The State explained there were a number of items not provided to the prosecution by law enforcement, including Defendant’s taped and written statements. The State learned there had been statements given by Defendant because the defense informed the prosecution. Thereafter, the State went to the Sheriffs office looking for Defendant’s statements. Though the prosecution looked at the physical evidence there, the photographs “never came up.” The State assumed that all of the photographs were in its file.

After additional discussion, the trial court restated that it did not see evidence of a conspiracy; instead, remarking the mistakes seemed to rise from incompetence: “I haven’t seen evidence that there is a concerted conspiracy. I have seen evidence of incompetence in handling of the evidence in the case. So if you lose a written and recorded statement of a defendant, ... that’s pretty big. Okay? ... [T]he only evidence I’ve seen is of incompetence.”

ImThe defense then pointed out that other evidence had been lost, including three or four recorded statements. Defense counsel specifically pointed out that the victim’s recorded statement had been lost. The State said this was a mischaracterization of events. It did not seek the recorded statements because it knew there were transcriptions of those statements. The issue had not been broached prior to the bench conference. The defense responded that was not true because he had been seeking the audio of all statements “at least back to the 7th.” Defense counsel pointed out that some of the witnesses had denied the statements contained in the transcripts, so he wanted to play the audio for the jury to show that the witnesses had, in fact, made the statements. The State rejoined that the defense was allowed full access to all witnesses and everything the Sheriffs office held.

When the trial court asked for clarification, the defense explained that the digitally recorded audio statements of Jessica Malone Stelly and Kristy Malone Jacobs taken by the Rapides Parish Sheriffs Office had been deleted. The defense had been able to listen to the statements given by other witnesses and compare them with the transcripts of the statements. The transcriptions were fairly accurate, but some alterations were required. Defense counsel had been informed that the Sheriffs office automatically deleted digital information after one year, and one of the officers told him that he had accidentally deleted several statements, as well. The State responded that the defense had been provided transcripts of both the statements and that the prosecution had been open about the automatic purge. Moreover, the State did not have an unfair advantage because it did not have access to any information in addition to that available to Defendant.

Following the argument by counsel, the trial court discussed the relevant issues on the record:

BY THE COURT: I’m not ... concerned about the State’s, or anybody’s unfair advantage. What I’m concerned about is the fact that I’m getting evidence that is relevant to this ease — both sides are ^getting it — in the middle of trial. That’s why I am, in my mind considering a mistrial. That’s the problem I have.... I am telling you, I haven’t seen any misconduct by the DA’s Office....
... I’m deeply concerned that evidence keeps appearing during trial. After ... witnesses are cross-examined. Okay?
... I hate when stuff comes up during trial. And that’s the concern I have ■right now, is that stuff keeps appearing, during the course of the trial.... I’m at a loss as to what else ... I don’t quite know what else can come out. And what I don’t wanta do is to get to the end, have the jury reach a verdict, and then have to come back and retry it because all of a sudden Cheneyville found the file. Now, ... the recorded statements, I, I’mma be honest with you, I’ve never understand [sic] why police recorded statements are used to impeach anybody, cause they’re ... a transcription of a recording that’s not certified. It’s not like a court reporter’s doing it?
... But that’s ... just me. Maybe I just get hung on detail[s] sometimes. But pictures of the crime scene, that’s kinda big.
... [T]he problem I have is, if you’re correct, it’s been produced yesterday, and you guys have spent months getting ready for this thing. And if now, one side is getting evidence that’s gonna help their case, I certainly would like to have that evidence presented in enough time to where when we go through the cross-examinations and all the other examinations, and present the evidence, it’s all done cleanly. So, what I’m looking at now, ... if I allow the trial to go forward, do we have to go back and go through everything again, cause now we’ve got new evidence?
... I’m deeply concerned that these pictures ... and I, what I’m gonna do, is I’m gonna submit these into the record for purposes of identification....
... My point is, you guys are not getting complete information....
... from the witnesses in this case, and that’s your job to elicit that information on direct and cross. But, to the extent that there are, there’s evidence available, like crime scene photos, that is supposed to l^be produced, and I know it’s the, it’s with the open file discovery, it’s a tradition of the DA’s Office,....
... and I have no doubt that had you had the information, it would have been provided, Mr. Metoyer.
... [W]e’ve beat this horse to death. I just need to decide if I’m gonna allow the trial to go forward.... [T]hat’s what I need to decide....
... I have looked at the issue of the crime scene ... photographs, and I, I don’t have before me a motion for mistrial by either party.
... Okay. I am ... deeply troubled by the fact that the evidence, the way the evidence was handled in the investigation in this matter. But, ah, I’m not gonna declare a mistrial at this point....

The next record location referenced by the defense occurred during Detective Keith Fennel’s testimony. The parties participated in questioning Detective Fennel in the judge’s chambers about the late addition photographs. The discussion revealed that the original six photographs that were in the file were not actually in the officer’s records while the photographs that were provided to the parties during trial were part of his records. Though his software should have shown whether the six original photographs had been deleted from his records, it gave no such indication. The defense pointed out that they had been showing the six pictures during trial, but they did not know who took them or their origin. The prosecution agreed to have the six original photographs removed from evidence, and the defense requested a limiting instruction. The court then ruled that the six unverified photographs would not be allowed into evidence.

After the court’s ruling, defense counsel moved for a mistrial on the basis of the unverified photographs and that the late addition of the twenty-two verified | ^photographs clarified the crime scene. The new photographs showed where the victim fell, where Defendant was standing, and where the shell casing landed.

The State replied that it had already admitted photographs into evidence that had been taken by the District Attorney’s Office; those photographs showed more detail than the original six unverified images and provided a clear image of the crime scene, and the prosecution’s pictures had been provided to the defense. Moreover, the State only had access to the same information it provided to the defense.

The trial court acknowledged that neither party had access to the twenty-two verified photographs before trial. Then, the district court noted the defense was arguing that it had based its case on the six unverified photographs, which were no longer going to be admitted into evidence and that it did not have time to adequately analyze the information provided by the new group of photographs. The trial court pointed out that they now had much better pictures of the crime scene.

Defense counsel agreed that, prior to the newly discovered photographs, it had nothing to rebut the District Attorney’s scene reconstruction images. Prior to the new photographs, neither party had been able to determine where the blood pool or the shell casing was located. The only discernible information from the original six unverified photographs was the relative location of the cars, the location of a pink comforter, and location of the gun and pack of bullets in the trunk of one of the vehicles. Defendant urged that, though one could see a black spot, it was questionable as to whether or not it was blood, and the new photographs show the black spot may not have been blood.

Ultimately, after considering the arguments presented by both parties, the district court denied Defendant’s motion:

|UI disagree that it looks very different. I’ve thought about this, and I’ve been thinking about [it] since this morning when I considered just going ahead and granting a mistrial on my own motion, without anybody’s request, and now that I’m faced with a motion for mistrial from the Defense, I’m gonna deny the motion. I, I don’t think you can prejudice with the fact that you now have the better crime scene pictures. While I am disturbed by the fact that, ah, those pictures were not produced, because they weren’t provided to the District Attorney’s Office until yesterday, ... you still have the opportunity to, to cross-examine all the witnesses, and there’s really only ... been testimony, as I recall, from one witness concerning locations of individuals. Ah, we have some pictures that were entered ... into [evidence] by the District Attorney’s Office with some “X’s” and stuff. I, I don’t know how helpful those are, but certainly we’ve got, as I appreciate it, we have the Defendant, ... Jessica[,] [a]nd the Defendant’s wife, who are the only three direct witnesses. Two of those people have not testified, and I don’t know [whether] or not your guy’s gonna testify, and that’ll be your decision[.]
... [Y]ou have the ability to cross, to recall Jessica and go over those pictures with her in your case-in-chief. So, I’m gonna deny the Motion for Mistrial at this time....

Defendant’s brief to this court next references a segment of the victim’s testimony where the defense used the transcript to impeach his statements. The victim, Mr. Malone, had just finished stating that, when his sister, Defendant’s wife, pulled a knife on him that morning prior to the shooting, he grabbed both her and the knife, but he did not take the knife from her. Defense counsel asked the victim if he recalled telling officers, “And she ran at me with the knife, and I grabbed the knife from her, and she left out the house and went to the police station.” Mr. Malone denied making the statement, “In a statement that I did on recordin’ that was rewritten by Lord knows who. And I did not say that.” When questioned about a second statement, which also seemed to contradict Mr. Malone’s claim that he had not removed the knife from his sister’s grasp, Mr. Malone said that she kept the knife and that she still had the knife when she left the house.

11fiDefendant again references the defense’s cross-examination of the victim. During this segment of the transcript, the defense asked Mr. Malone whether he had made the statements on which the defense had previously cross-examined Ms. Stelly, who had denied that the transcribed statements were verbatim. Mr. Malone denied saying the quoted language and asserted they did not sound like something his sister would say.

Finally, Defendant references the State’s closing argument in support of his assertion that the State mishandled, misplaced, and lost evidence and that there were severe deficiencies in the investigation of the crime as well as in the collection and safeguarding of the evidence:

The State put on, at first, the members of the Cheneyville Police Department. And ladies and gentlemen of the jury, I don’t need to tell you that this case was handled horribly by them. The shooting occurred on May 5th of 2008; the report is not completed, and substantially not investigated, until some time in 2009. And the reason for that is that the police department thought of the victim as a bad person, because he had been convicted of a crime before. They didn’t take the time to think about the fact that the [prior] crime was done in defense of another person, as the testimony showed at trial. They didn’t think about the fact that this person was a victim of a crime, he’s now paralyzed. They simply got the report in, made an arrest, let the Defendant bail out of jail, and then sat on the report. Did nothing. Well, that’s terrible enough in the very beginning.

Louisiana Code of Criminal Procedure Article 775 requires the trial court to order a mistrial if prejudicial conduct inside or outside the courtroom makes it impossible for the defendant to obtain a fair trial:

A mistrial may be ordered, and in a jury case the jury dismissed, when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
|1fi(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.

“[Mjistrial is a drastic remedy that is warranted only when the defendant has suffered substantial prejudice such that he cannot receive a fair trial.” State v. Weary, 03-3067, p. 36 (La.4/24/06), 931 So.2d 297, 321, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006). “The determination of whether actual prejudice has occurred lies within the sound discretion of the trial judge; this decision will not be overturned on appeal absent an abuse of that discretion.” Id.

The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). Favorable evidence includes both exculpatory evidence and evidence impeaching the testimony of a witness when the reliability or credibility of that witness may be determinative of defendant’s guilt or innocence or when it may have a direct bearing on the sentencing determination of the jury. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 LEd.2d 481 (1985). Regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley ’s touchstone of materiality is a “reasonable probability” of a different result, and the adjective is important. The question is not whether the defendant would more likely that not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the government’s evidentiary suppression “undermines confidence in the outcome of the trial.”

State v. Verret, 06-1337, pp. 21-22 (La.App. 1 Cir. 3/23/07), 960 So.2d 208, 222, writ denied, 07-830 (La.11/16/07), 967 So.2d 520 (citations omitted). “An 117appellant is not deprived of his due process rights based on the state’s failure to preserve potentially exculpatory evidentia-ry material unless bad faith is demonstrated.” State v. Harris, 01-2730, p. 20 (La.1/19/05), 892 So.2d 1238, 1253, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005) (citing Youngblood, 488 U.S. at 58, 109 S.Ct. at 337).

In Vemt, the State received some information from a Sheriffs officer regarding the victim in the case during the presentation of the defendant’s ease. Verret, 960 So.2d at 223. The prosecution advised that it did not have the information until after the testimony of one of the defense’s witnesses. Id. The State promptly provided the information to the defense. Id. The information contained the victim’s statement to the police, and the victim’s statement contradicted her testimony trial. Id. at 223-24. The defense moved for a mistrial based upon a Brady violation; however, the trial court denied the motion. Id. at 224. The first circuit found no abuse of discretion because the defendant “did not suffer such substantial prejudice that he was deprived of any reasonable probability of a fair trial.” Id. at 225.

In the instant case, both the State and the defense were simultaneously provided with the pictures. A comparison of the six unverified photographs to the twenty-two actually admitted into evidence does not show any clear prejudice to the defense. The original six photographs show two overviews of the crime scene as viewed from two different angles outside the crime scene tape, the blood pool, the empty shell casing lying on the ground, the rifle recovered from the scene, and a loaded clip of ammunition plus a loose bullet lying on a blanket atop a tire. The images substituted for the original images show similar and additional views of the crime scene both inside and outside the tape, near and distance shots of the bullet casing lying on the ground, near and distance images of the blood pool, and what appears to be a cluttered trunk space containing a toy horse, a pen, a loose bullet, 11san empty package of bullets, and a coin. Thus, there were additional images of the same information contained in the verified photographs. Also, Defendant benefited from the substitution as the verified photographs did not include any images of either the weapon used in the offense or the loaded clip of bullets. Therefore, Defendant was not clearly prejudiced by substitution of the photographs discovered during trial for the original six unverified images. Moreover, the officer who provided the verified photographs was recalled, and both parties were allowed the opportunity to question him about the images.

Furthermore, review of the record shows that Defendant was not deprived of his right to cross-examine the witnesses. The defense successfully used the transcriptions of the witnesses’ police statements to point out inconsistencies between their trial testimony and their prior statements.

Insofar as Defendant references the officer’s testimony that Defendant’s statement to police was lost, it appears that the loss of the statements could only have benefited Defendant because, as Defendant testified at trial and maintained his self-defense theory, his prior claim of self-defense was allowed into evidence, but there was no recorded statement available to impeach his credibility on the details of the matter.

Accordingly, the trial court did not abuse its discretion in both declining to and refusing to order a mistrial in the instant case.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, Defendant argues that his sentence of five years at hard labor with credit for time served is excessive:

The Trial court erred by imposing an excessive, maximum sentence of five (5) years imprisonment at hard labor for Second Degree Battery against a first-time felony offender who acted in self defense. The trial court gave insufficient consideration to the personal history of the alleged victim, including his own use of a firearm in an aggressive manner. Nor did the trial court consider that the evidence tended to support a conclusion that the victim had facilitated or | ^contributed to the harm in this case, a mitigating factor under the sentencing guidelines article.

The defense asserts that, despite finding that every mitigating factor set forth in La.Code Crim.P. art. 894 applied in the instant case, the trial court imposed the maximum possible penalty because “a lesser sentence would deprecate the seriousness of the offense.” Defendant contends this constitutes an abuse of discretion as maximum sentences are reserved for the worst offenders. The defense posits that Defendant is not the worst type of offender and that he does not pose a risk to public safety.

In imposing the penalty on Defendant, the sentencing court stated the reasons for its decision:

I have reviewed the matter, sat through the trial, considered all the post trial motions. I know that Mr. Jacobs has no criminal record, hard working, supports his family. Ah, I do think he regrets what happened. Under, ah, 894.1: “A court should order a sentence of imprisonment if any of the following occurs: There’s an undo risk that he will commit another crime”, I don’t really feel like that’s present. “The defendant is in need of correctional treatment in a custodial, ... in a ... custodial environment”. And I don’t feel like that’s present. However, “a lesser sentence will depreciate the seriousness of the crime”, that’s certainly present. Ah, Mr. Jacobs left work, knowing there was a problem; put himself in a position for the incident to happen; had a loaded gun, fired by his own testimony, without looking in the direction of the ... victim — there were several people in the area. When you go through the factors, ah, he did knowingly create a risk of death or great bodily harm to more than one person. He did use actual violence in the commission of the offense. Certainly there is no doubt that the offense caused a significant personal injury and significant economic loss to the victim. He did use a dangerous weapon. Ah, if he had just stayed at work nothing would have happened. He’s continued to argue that he acted under strong provocation. I have considered that fact; I did sit through the trial. He did, ah, through counsel, have continued to argue there are substantial grounds tending to excuse or justify his conduct, though failing to establish a defense. He did argue that the victim’s, ah, conduct facilitated or induced its commission, even though the jury rejected that argument. He has no history of prior delinquency or criminal activity, and has apparently led a law-abiding life. Can’t say that his criminal conduct was a result of circumstances that, ah, would occur again. And I, I do note that imprisonment would entail, ah a hardship on his dependents. However, he put himself in that situation with a gun. I think a lesser sentence would depreeiate lanthe seriousness of the crime, so, Mr. Jacobs, I’m gonna sentence you to five years at hard labor. You’re to receive credit for time served.

Following sentencing, Defendant filed a “Motion to Reconsider Sentence” with the trial court. In his motion, Defendant asserted that his sentence was excessive because he did not have a prior criminal record, because of the unexplained loss or destruction of numerous pieces of evidence that possibly could have benefited Defendant at trial, because the victim had a substantial record of dangerous aggression and violence, and because one of the officers believed both that the victim was also armed with a gun, which they were unable to locate during the investigation, and that Defendant was acting in self-defense.

The sentencing court denied Defendant’s motion and issued written reasons for its judgment:

On 2 May 2008, Mr. Jacobs fired a gun at Marcus Malone. The bullet struck Mr. Malone causing him to be a quadriplegic. There is no dispute that Mr. Jacobs fired the gun and that the bullet struck Mr. Malone causing him to be a quadriplegic. At the trial of this matter in June, 2010, Mr. Malone was in very poor health, and his health has only become worse since. This Court sentenced Mr. Jacobs to five years in prison at hard labor. Mr. Jacobs has asked the Court to reconsider sentence.
This case started as a dispute between a brother and sister that occurred on the morning of 2 May 2008 and ended with Mr. Malone shot and bleeding on the ground. Mr. Jacobs left home that morning to go to work. While he was gone, his wife, Kristy Jacobs, got into a confrontation with her brother, Mr. Malone. After the dispute, Mrs. Jacobs left the residence. Shortly, after learning of the confrontation, Mr. Jacobs decided to leave work and go to residence and get their belongings so they could move. On the way to the residence, Mr. Jacobs asked a police officer about the requirements for self-defense. When he arrived at the residence, Mr. Malone was present pacing in the yard. Mr. Jacobs went inside and began to gather his family’s belongings to put in the trunk of a car. In the trunk of the car was a .22 rifle. He made several trips inside the residence to retrieve his family’s belongings while Mr. Malone paced about the yard. Mr. Jacobs was not afraid at that time. At some point, while he was loading his family’s belongings into the car, Mr. Jacobs contended that Mr. Malone had a gun and was approaching him, so he pulled the .22 rifle from the trunk of the car and fired it at Mr. Malone. The jury did not accept that version of the facts. No other gun was found. The jury returned a verdict of guilty to Second Degree Battery.
121 Mr. Jacobs was tried on the charge of Aggravated Battery, Second Degree and convicted of Second Degree Battery. Second Degree Battery carries a fine of not more than $2,000 and/or imprisonment, with or without hard labor, for up to five years. Under Louisiana Code of Criminal Procedures art[.] 894.1, a court should impose a sentence of imprisonment if any of the following occurs:
1. There is an undue risk that the defendant will commit another crime;
2. Defendant is in need of correctional treatment or a custodial environment;
8. A lesser sentence will depreciate the seriousness of the defendant’s crime.
This Court has no evidence that there is an undue risk that Mr. Jacobs will commit another crime. He did not have a criminal record before this incident and has not been in trouble since this incident. Concerning the second factor, this Court does not find that Mr. Jacobs is in need of correctional treatment or custodial environment. However, this Court does believe that a lesser sentence would depreciate the seriousness of defendant’s crime. At the sentencing, this Court went through the factors set forth in the Code of Criminal Procedures art. 894.1 finding that a lesser sentence will depreciate the seriousness of the crime, that Mr. Jacobs knowingly created a risk of death or great bodily harm to more than one person (by his own testimony, he fired the gun without looking and there was [sic] other people around), and that he used actual violence in the commission of the offense. In addition, the offense caused significant permanent injury and significant economic loss to Mr. Malone and his family. There is no dispute that the injuries Mr. Malone suffered were permanent, life changing and economically devastating. In addition, Mr. Malone’s victim impact video was an important consideration. Although, Mr. Malone was present and did testify live at trial, his health would not permit him to attend the sentencing in person.
This Court has struggled with this sentencing, but [cannot] escape the conclusion that a lesser sentence would depreciate the seriousness of the defendant’s crime. Had Mr. Jacobs simply waited and not gone to the residence, he could have avoided this whole situation, would not be facing a criminal conviction and a brother-in-law who is now quadriplegic. This Court imposed the current sentence after a careful consideration of all of the sentencing factors, the tone and demeanor of witnesses at trial and during the sentencing hearing, and a careful consideration of the law governing this case. For these reasons, the Motion to Reconsider Sentence is denied.

This court has previously discussed the standard for reviewing excessive sentence claims:

[ aa[Louisiana Constitution Article] I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

State v. Barling, 00-1241, 01-1591, p. 12 (La.App. 8 Cir. 1/81/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (citations omitted).

Under La.R.S. 14:34.1, the possible penalties for a second degree battery conviction include a fine up to $2,000.00 and/or imprisonment for up to five years, either with or without hard labor. Therefore, Defendant is correct in stating that the sentencing court imposed the maximum possible term of imprisonment allowable under the applicable law.

Even though a penalty falls within the statutory sentencing range, it may still be unconstitutionally excessive:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted). “[T]he trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1 [;] the record must reflect that he adequately considered these [ ^guidelines in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983).

“[MJaximum sentences are reserved for cases involving the most serious violations of the charged offense and for the worst kind of offender.” State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982). Though Defendant maintains that he is not the worst type of offender, he does not argue that the facts of the instant case do not constitute the most serious type of second degree battery violation. This court has held that the maximum sentence can be imposed in cases involving either the worst type of offender or the most serious violations of the offense. State v. Hopkins, 96-1063, p. 7 (La.App. 3 Cir. 3/5/97), 692 So.2d 538, 541. The record shows that Defendant endangered multiple people by firing a gun in the direction where other people were located. Defendant’s bullet actually struck its intended target, who was unarmed. The resulting injury caused the victim to become permanently paralyzed from the neck down.

In State v. Faulkner, 570 So.2d 516, 518 (La.App. 5 Cir.1990), the fifth circuit affirmed a five-year hard labor sentence for a first-time offender when the injuries to the victim included “a broken nose, several fractured ribs and a punctured lung requiring four days of hospitalization and three months of convalescence.” The facts of the instant case show that, although Defendant was a first-time offender, the injuries received by the victim in the current case were much more severe than those received by the victim in Faulkner. Moreover, Defendant actually received a less onerous penalty that the defendant in Faulkner because he was not also required to pay $2,000.00 in restitution. Id. at 517.

Accordingly, we find Defendant’s sentence of five years at hard labor does not constitute an abuse of the district court’s sentencing discretion.

DECREE

| ?4For the foregoing reasons, Defendant’s conviction and sentence are affirmed, with instructions.

AFFIRMED, WITH INSTRUCTIONS.

PETERS, J., dissents and assigns written reasons.

PETERS, J.,

dissenting.

| jl respectfully disagree with the majority’s affirmation of the defendant’s conviction. Specifically, I believe the trial court erred in not granting a mistrial when the state was unable to produce the audio tapes upon which the various transcribed statements were based. Both the majority and the trial court concluded that the defendant was not deprived of his right to cross-examine the state’s witnesses because he had access to the transcribed statements. However, despite ultimately reaching this conclusion, the trial court recognized the major flaw in this approach when it noted that each transcript was nothing more than “a transcription of a recording that’s not certified. It’s not like a court reporter’s[sic] doing it.”

When questioned concerning the content of the various transcripts, the witnesses denied the accuracy of the prior statements. Thus, the defendant was left with nothing more than prior statements transcribed by law enforcement personnel whom the trial court had described as “incompetent.” In fact, the state argued in closing that the entire investigation had been “handled horribly” by the Cheney-ville Police Department. Without the audio tapes, the defendant could only hope the jury concluded that the law enforcement personnel were competent in transcribing the audio tapes while at the same time concluding that they were incompetent in most other respects. In my opinion, the defendant was denied a viable cross-examination and I would find merit in his first assignment of error.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Jimmy SHINN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00089-COA.
    Court of Appeals of Mississippi.
    Nov. 1, 2011.

      Jimmy Shinn, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. When sentencing a felony offender for multiple convictions, it is important for our trial judges to specify in their sentencing orders whether the sentences are ordered to run concurrently or consecutively to one another. Today’s case illustrates the problems that develop when sentencing orders are entered and are silent as to whether the sentencing orders are concurrent or consecutive. The majority rule requires that silent sentencing orders which do not specify whether the sentences are ordered to run concurrently or consecutively should be construed as concurrent sentences. 21A Am. Jur. 2d Criminal Law § 840 (2010). Because we follow the majority rule, we must reverse, render, and remand Jimmy Shinn’s case for re-sentencing.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 7, 2004, a Lowndes County grand jury indicted Shinn on four counts. Three counts alleged that Shinn uttered forgeries involving checks written on the account of Mary Bush. Shinn and his attorney appeared before the circuit judge on February 15, 2005, to enter guilty pleas to Counts I and II. Count I charged that Shinn had uttered a $200 check on Bush’s account. Count II charged that, seven days prior to the check passed in Count I, Shinn uttered a $175 check on the same account. The minimum and maximum sentence for each count ranged from two to ten years of imprisonment. In exchange for his guilty pleas on Counts I and II, the district attorney agreed to dismiss Counts III and IV without prejudice, which is otherwise known as a nolle prose-qui. The guilty pleas to Counts I and II were open pleas indicating that the district attorney would make no recommendation to the circuit court regarding sentencing.

¶ 3. At the sentencing hearing held three days after Shinn had entered his guilty pleas, he was sentenced in Count I to four years in the custody of the Mississippi Department of Corrections (MDOC) followed by five years of post-release supervision (PRS). He was also ordered to pay $1,265 in restitution and court costs. On Count II, Shinn was sentenced to four years in the custody of the MDOC and five years of PRS. He was ordered to pay a fine of $750. At the conclusion of the sentencing hearing, the circuit judge stated that the sentences were to run consecutively. A court reporter was present at the sentencing hearing; it would be almost five years later before the hearing was transcribed and the transcription filed with the circuit court. The district attorney volunteered to prepare the two separate sentencing orders on Counts I and II for the circuit court, which the circuit judge signed and filed on February 18, 2005, the same day as his oral pronouncement of Shinn’s sentence. Neither sentencing order specified whether the sentences were concurrent or consecutive to one another. They simply were silent. Shinn began service of his sentences.

¶ 4. The MDOC interpreted the silent sentencing orders to run concurrently, so on July 4, 2007, Shinn was fully discharged by the MDOC due to the expiration of his custodial sentences of four years on both Counts I and II. An official discharge certificate from the MDOC indicating Shinn’s completion of his two, four-year custodial sentences appears in the record. Thereafter, Shinn began his five-year PRS portions of the sentences under the circuit court’s jurisdiction. During the first year of that five-year period, Shinn violated the conditions of his PRS; and on November 24, 2008, the circuit judge held a hearing and revoked Shinn’s PRS on both counts. The circuit judge entered two partial revocation orders. On Count I, Shinn was ordered to serve two-and-one-half years in the custody of the MDOC and then complete two-and-one-half years on PRS. The circuit judge ordered the same for Count II, but he further stated that the sentence on Count II was to run consecutively to the revocation of Count I. In effect, Shinn was required to serve five more years in the custody of the MDOC with five years thereafter on PRS.

¶ 5. The official court reporter transcribed and filed the guilty plea and original sentencing hearing with the circuit clerk on April 23, 2009. On May 18, 2009, in response to Shinn’s pro se motions to modify his revocation sentences and convince the circuit judge that his original sentences could not be changed to consecutive at the revocation hearing, the circuit judge entered an order stating that the original sentences were to run concurrently, but at the revocation hearing, the sentences could, in the circuit court’s discretion, be changed to run consecutively. Specifically, the May 18, 2009 order signed by the circuit judge stated: “The court finds that the Petitioner’s original sentences in Count [I] and [II] of Lowndes County Criminal Cause Number 2004-0190-CR1 were [ordered to] run concurrent[ly].” (Emphasis added). Shinn filed his pro se motion for post-conviction relief (PCR) on September 9, 2009. Then, on December 4, 2009, after the circuit judge’s examination of “all the files, records, transcripts and correspondence relating to the judgment under attack” pursuant to Mississippi Code Annotated section 99-39-11 (Supp.2011), the circuit judge summarily dismissed Shinn’s pro se PCR motion and again stated, in a written order, that the original sentences were ordered to run concurrently. Specifically, the December 4, 2009 order signed by the circuit judge stated: “After reviewing the Petitioner’s criminal files, the Court finds that the Petitioner’s original sentences for several different counts in Lowndes County Criminal Cause Number 2004-0190-CR1 were [ordered to] run concurrentfly] according to the sentencing orders.” Thereafter, Shinn appealed the circuit judge’s December 4, 2009 summary dismissal of his PCR motion. Inexplicably, and after the appeal had been perfected and the record designated by Shinn, the circuit judge, sua sponte, entered another order on February 17, 2010, stating that the original sentences were ordered to run consecutively. Even though the appeal had been perfected and the record designated a month earlier, the circuit judge ordered the clerk to include the February 17, 2010 order in the appeal record.

¶ 6. Shinn appeals raising the following issue, which we state verbatim:

Whether the [circuit] court erred by restructuring the sentence imposed from concurrent to consecutive[,] thereby increasing the total term of imprisonment imposed and subjecting him to double jeopardy.

STANDARD OF REVIEW

¶ 7. A circuit court’s dismissal of a motion for post-conviction relief will not be reversed absent a finding that the circuit court’s decision was clearly erroneous. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999). However, when issues of law are raised, the proper standard of review is de novo. Id.

ANALYSIS

¶ 8. When Shinn was admitted into the custody of the MDOC, his sentencing orders were silent as to their concurrent or consecutive nature. The circuit clerk’s commitment form required by Mississippi Code Annotated section 99-19-45 (Rev.2007) was also silent regarding the concurrent or consecutive nature of the sentences. The Mississippi Attorney General’s Office, through its opinions, has offered guidance to the MDOC regarding how to interpret sentencing orders that are silent or ambiguous. Following the guidance provided by these opinions, the MDOC accepted Shinn into custody as having two concurrent four-year terms to serve. Shinn argues that since he was serving concurrent sentences, the circuit judge could not alter these sentences to consecutive after Shinn had already begun serving the sentences concurrently.

¶ 9. Prior to March 14, 1983, Mississippi Code Annotated section 99-19-21 (1972) read, in part, as follows:

When a person is sentenced to imprisonment on two or more convictions, the imprisonment on the second, or each subsequent conviction, shall commence at the termination of the imprisonment for the preceding conviction, and the sentence ought to so specify. Provided, however, that when a person is convicted at the same term of a circuit or county court of more than one offense, the judge of such court may impose sentence on such convictions to run concurrently. ...

Under the law at that time, sentences would run consecutively if the sentencing order did not expressly say the sentences were to run concurrently. However, section 99-19-21 was amended in 1983 and now reads, in part, as follows:

When a person is sentenced to imprisonment on two (2) or more convictions, the imprisonment on the second, or each subsequent conviction shall, in the discretion of the court, commence either at the termination of the imprisonment for the preceding conviction or run concurrently with the preceding conviction.

Miss.Code Ann. § 99-19-21(1) (Rev.2007).

¶ 10. The language of the statute now no longer contains a presumption that multiple sentences are to run consecutively. Pursuant to the current statute, when sentencing orders from a circuit court on the same defendant cover multiple felony convictions, the circuit judge has discretion to order the sentences to run either concurrently or consecutively.

¶ 11. Although a circuit judge now has discretion on how to run the sentences, once the circuit judge pronounces a sentence in a felony case, a sentencing order is entered of record, and the term of court expires, the circuit judge is without jurisdiction to change or modify that sentence at a later time. Campbell v. State, 430 So.2d 851, 853 (Miss.1983). “[Ajfter the term of court during which the defendant was sentenced has passed, ‘the circuit judge’s sole authority in the case was to determine whether or not all or a portion of the original suspended sentence should be revoked.’” Miss. Comm’n of Judicial Performance v. Russell, 691 So.2d 929, 937 (Miss.1997) (quoting Campbell, 480 So.2d at 853). It follows that once a circuit judge sentences a defendant on multiple felonies, orders those convictions to be served concurrently or consecutively, and the term of court expires, the circuit judge is without jurisdiction to change those sentences including their concurrent or consecutive nature. The record is void of any attempt by the circuit judge to retain sentencing jurisdiction over Shinn under the “earned-probation” statute found in Mississippi Code Annotated section 47-7-47 (Rev.2011).

¶ 12. In this case, the original sentencing orders are silent as to their consecutive or concurrent nature, but the circuit judge altered the sentencing orders at Shinn’s revocation hearing to run the sentences consecutively. His attempt to do so is too late. Since there is no longer a statutory presumption that multiple sentences are to run consecutively, Shinn’s silent sentencing orders are not automatically construed as consecutive. Further analysis is needed to determine whether the circuit judge’s oral pronouncement of consecutive sentences prevails over the silent sentencing orders that were entered.

¶ 13. This Court has held that when an oral pronouncement of a sentence conflicts with the written pronouncement, the written pronouncement prevails. Boutwell v. State, 847 So.2d 294, 296 (¶ 8) (Miss.Ct.App.2003). In Temple v. State, 671 So.2d 58, 58 (Miss.1996), the Mississippi Supreme Court held “the written order is the final judgment....” In both Bout-well and Temple, this Court and the supreme court enforced the written sentencing orders that were entered. Although the circuit judge in Shinn’s case apparently orally ordered the sentences to run consecutively at the sentencing hearing, he later, after the sentencing hearing transcript had been filed, stated in two separate orders that the original sentencing orders were concurrent. In these two orders, the circuit judge stated that based on his review of the file and transcripts in the case, the original sentences were ordered to run concurrently. He twice reviewed the files and transcript on file and found that the original sentences were concurrent. Further, we must acknowledge that, after the appeal was perfected, the circuit judge entered a third order. However, this order differed from the other two in that it stated that the sentences were ordered to run consecutively. At this time we must also note, in regard to this third order entered, the order was entered after Shinn had perfected his appeal and the record had been designated. As the supreme court’s recently stated in Corporate Management, Inc. v. Greene County, 23 So.3d 454, 460 (¶ 13) (Miss.2009):

Filing a notice of appeal transfers jurisdiction from the trial court to an appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment. McNeil v. Hester, 753 So.2d 1057, 1075 [(¶ 68])(Miss.2000); Bert Allen Toyota, Inc. v. Grasz, 947 So.2d 358, 362-63 [(¶ 7)] (Miss.Ct.App.2007). In other words, the appeal removes the case ipso facto to the appellate courts. Id. When an appeal has no supersedeas bond, a party may execute on the judgment. McNeil, 753 So.2d at 1076. However, the lower court cannot “broaden, amend, modify, vacate, clarify, or rehear the decree.” Id. On the other hand, when an appeal has a supersedeas bond it effectively suspends the judgment. Matter of Estate of Moreland, 537 So.2d 1345, 1348 (Miss.1989). Therefore, “enforcement of the rights declared by the decree are suspended until the appeal is determined.” Id. When a trial court’s order broadens, amends, modifies, vacates, clarifies, or rehears a decree, “it must be vacated as null and void because it exceeds the subject matter jurisdiction of the lower court.” Id.

Thus, once Shinn perfected his appeal of the December 4, 2009 judgment, the circuit judge had no jurisdiction to enter an order modifying or amending that judgment, and any such attempt is null and void.

¶ 14. The majority rule throughout the country is, absent specific legislative direction otherwise, “in imposing sentence on two or more counts or on two or more indictments consolidated for trial, if the court fails to specify otherwise, the temí of imprisonment on the second or subsequent judgment runs concurrently with the first.” 21A Am. Jur. 2d Criminal Law § 840 (emphasis added). Since the sentencing orders are the final judgments, the orders are silent as to whether the sentences were ordered to run consecutively or concurrently, and since the circuit judge entered two separate orders prior to the appeal stating that the sentences were concurrent, we must conclude that they were, in fact, concurrent.

¶ 15. In Anderson v. State, 288 So.2d 852, 855 (Miss.1974), the supreme court discussed ambiguities in sentencing orders. William Anderson pled guilty to eight counts of false pretense involving checks written to Foodtown. Id. at 853. At Anderson’s sentencing hearing, the circuit judge stated that Anderson was sentenced to two years on each count and that the sentences would run consecutively. Id. at 854. Thus, Anderson would have to serve sixteen years total. Id. at 854. However, the multiple sentencing orders entered on October 8, 1971, contained an ambiguity in that they all stated: “the date of sentence to commence from today.” Id. at 855. However, seven of the sentencing orders stated: “Sentence imposed herein was to run consecutively with the sentence imposed in [the first cause number].” Id. at 855. The supreme court stated that “the orders imposing sentences control, not the remarks of the judge which [sic] preceded their entry.” Id. at 855. The supreme court determined that the sentencing orders were ambiguous and that Anderson’s sentences would be construed in his favor as concurrent. Id. at 855. It appears that the consecutive sentences orally pronounced at the sentencing hearing were of no moment to the supreme court’s analysis.

¶ 16. In the current case, we submit that the original sentencing orders are simply not ambiguous on their face. Each order sentences Shinn to the same four-year sentence followed by five years of PRS. According to a 1989 attorney general’s opinion, “a sentencing order which was entered on or after March 14, 1983[,] and did not indicate whether sentences were to run concurrently or consecutively!,] is ambiguous. Ambiguous sentences should be served concurrently as required by Anderson v. State, 288 So.2d 852 (Miss.1974), which construes ambiguous sentencing in favor of the convict.” Miss. Att’y Gen. Op. No. 503359, 1989 WL 503359, Black (August 10, 1989). We find Shinn’s silent sentencing orders are simply not ambiguous in their terminology and must be construed consistently with the majority rule to run concurrently.

¶ 17. However, it might be legitimately said that ambiguity does exist among the sentences pronounced orally at the sentencing hearing, the two original silent sentencing orders, the two orders entered finding the original sentences to be concurrent, and the last order entered after Shinn perfected his appeal. As such, we construe the original sentences in favor of Shinn as concurrent.

¶ 18. It is important for us to note that there is case law to support the proposition that a scrivener’s error or clerical error may be corrected at any time. See Kitchens v. State, 253 Miss. 734, 737, 179 So.2d 13, 14 (1965); Harvey v. State, 919 So.2d 282, 287-88 (¶ 14) (Miss.Ct.App.2005); Fields v. State, 840 So.2d 796, 801 (¶ 10) (Miss.Ct.App.2003). We do not disagree with the principles set out in those cases; however, we cannot find that the facts of the current case fit within the parameters of those cases.

¶ 19. An additional, logical reason exists requiring reversal of the circuit court’s revocation of Shinn’s PRS on Count II. Even if the circuit judge had originally ordered consecutive sentences, Shinn could not have been serving his five-year term of PRS on Count II when he violated the conditions of the PRS under Count I. In Smith v. State, 742 So.2d 1146, 1147 (¶¶ 3-5) (Miss.1999), Richard Smith’s probation was revoked for an act he committed before he was placed on probation. In Smith, the supreme court stated: “It follows that Richard Smith could not have his probation and suspended sentence revoked for violation of a condition which did not exist, and specifically for something he had already done at the time the probation and suspended sentence were handed down.” Id. at 1148 (¶ 11). If Shinn’s two sentences were ordered to run consecutively at the initial sentencing as the circuit judge now claims, Shinn would have begun his first five-year term of PRS immediately after his discharge from the custody of the MDOC. Shinn’s PRS sentence on Count II would not have begun to run until Shinn had completed his five years of PRS on Count I on July 4, 2012. As a result, the circuit judge cannot revoke Shinn’s PRS sentence on Count II since he was not serving that portion of his sentence at the time he violated the conditions of the PRS under Count I. As in Smith, Shinn could not have his PRS revoked on Count II for having committed a violation before he even began serving his PRS sentence under Count II. Stated differently, Shinn could not have his PRS sentences on both counts simultaneously revoked unless he had been serving those sentences concurrently.

¶ 20. The attempted modification of Shinn’s original sentences on Counts I and II from concurrent to consecutive was unlawful, and the resulting two-and-one-half-year sentences in the custody of the MDOC with two-and-one-half years of PRS to run consecutively is likewise unlawful. We reverse the sentences given to Shinn at his revocation hearing, declare the sentences imposed at the original sentencing hearing are concurrent sentences, and remand this matter to the circuit court to conduct a new sentencing hearing and to impose lawful concurrent sentences based on Shinn’s violation of the conditions of his PRS under Counts I and II.

¶ 21. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, RENDERED, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

LEE, C.J., GRIFFIS, P.J., MYERS, ISHEE, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT. BARNES, J., CONCURS IN RESULT ONLY.

      . Under Mississippi Code Annotated section 99 — 39—5(l)(h) (Supp.2011), a person is authorized to file a PCR motion when he claims "[t]hat his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custodyf.]” The State has filed no cross-appeal and made no request to amend the original sentencing orders.

      . See Miss. Att’y Gen. Op. No. 256586, 1985 WL 256586, Thigpen (August 19, 1985).

      . This principle might have been the primary basis undergirding the circuit judge's two orders finding the original sentences concurrent. It is possible the circuit judge "misspoke” when he orally pronounced the sentences to run consecutively. However, the third order entered after perfection of the appeal leaves us with an eternal conundrum.


author: BARNES, J., CARLTON, J.,

text:
    Jim DURHAM, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00728-COA.
    Court of Appeals of Mississippi.
    Nov. 8, 2011.

      Richard V. Dymond, Gulfport, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court.

¶ 1. Jim Durham (Durham) was convicted by a Forrest County Circuit Court jury on four counts of writing bad checks with fraudulent intent in violation of Mississippi Code Annotated section 97-19-55(l)(a) (Rev.2006). He was sentenced to three years in Counts I-IV, all in the custody of the Mississippi Department of Corrections (MDOC), with the three years on Count Four suspended and ordered to be served under post-release supervision. Durham appeals his conviction, and finding error, we reverse the circuit court’s judgment and remand for a new trial.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Durham and his father owned and operated an auction business, Durham Inc., in Brooklyn, Mississippi. In the course of business, Durham Inc. would receive various types of large equipment on consignment, and once the equipment was sold at auction, the proceeds would be deposited into an escrow account and a check issued to the consignor. In early 2008, Durham Inc. received equipment from Quin-co Construction (Quin-co); Mad Dog, Inc. (Mad Dog); Southeastern Concrete Company (Southeastern); and the Warren County Board of Supervisors (Warren County). Following the sale of the equipment, Durham issued checks for the sale price of each consignor’s equipment, less commission, from the company’s escrow account at Community Bank. The following is the list of the checks distributed by Durham that are at issue in this appeal:

Payee Date Issued: Amount
Quin-Co May 31,2008 $ 4,580.00
Southeastern June 20,2008 $ 84,072.00 Warren County June 20, 2008 $125,000.00
Mad Dog June 20,2008 $ 14,850.00

¶ 8. Durham Inc. had been experiencing cash-flow problems as a result of poor business decisions, and Durham had obtained several loans in order to cover operating expenses. However, whenever Durham Inc.’s escrow account had a negative balance and a check was presented for payment, Community Bank would honor the check regardless of the insufficient funds and merely charge Durham Inc. a fee.

¶ 4. On July 1, 2008, Marvin Clark, an investor in Durham Inc., obtained a judgment of $405,000 against the company, and a writ of execution was entered. Consequently, beginning July 8, 2008, Community Bank began returning checks presented for payment on the escrow account for insufficient funds. Although dated in May and June 2008, the checks issued to Quin-co, Mad Dog, Southeastern, and Warren County were not presented to Community Bank for payment until July 2008, when the escrow account had a negative balance; therefore, the four checks were returned for insufficient funds. Durham later obtained a loan for $164,300 and placed this amount into the escrow account on July 28, 2008.

¶ 5. Additionally, on August 1, 2008, Durham received a letter from Citizen’s National Bank stating that it had received a writ of garnishment in regard to the $405,000 judgment and that it had seized funds on two of Durham Inc.’s checking accounts. The following day, August 2, 2008, Durham was holding a public auction for automobiles when the Forrest County Sheriffs Department served a writ of execution and seized the sales proceeds from the auction. On September 3, 2008, a temporary restraining order was issued, which froze all of Durham Inc.’s banking accounts in relation to a federal charge of embezzlement against Durham’s father. Also during this period, the four payees— Quin-co, Mad Dog, Southeastern, and Warren County — tendered the returned checks to the Forrest County District Attorney’s Office for collection. On August 26, 2008 (Southeastern), September 2, 2008 (Warren County), and September 20, 2008 (Quin-Co and Mad Dog), the district attorney sent notices to Durham pursuant to Mississippi Code Annotated section 97-19-57 (Rev.2006), requesting full payment of the amount of the checks within fifteen days. The monies were never paid. Durham Inc. filed Chapter 7 bankruptcy on November 10, 2008, and listed, among others, these four payees as creditors. Durham and his wife also filed Chapter 7 bankruptcy as the couple had borrowed money to invest in the business, using rental property they owned as collateral.

¶ 6. Durham was indicted on October 28, 2008, on five counts of writing worthless checks with a fraudulent intent under Mississippi Code Annotated section 97-19-55(l)(a) (Rev.2006). Count V of the indictment was dismissed prior to trial and is not at issue here. After a jury trial, Durham was convicted on all four remaining counts. The circuit court sentenced Durham to three years on each count; however, the three-year sentence for Count IV was suspended, and three years of post-release supervision was ordered.

¶ 7. On April 6, 2010, Durham filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial, which the circuit court denied. On appeal, we find error in the circuit court’s denial of Durham’s motion for a new trial, and we reverse the court’s judgment and remand this case for further proceedings consistent with this opinion.

I. Whether the evidence was sufficient to support the verdict.

¶ 8. Durham contends that the circuit court erred in denying his motion for a JNOV as the evidence was not sufficient to support his convictions. Specifically, he cites several Mississippi Supreme Court cases that hold section 97-19-55 only applies to contemporaneous exchanges. See Hindman v. State, 378 So.2d 663 (Miss.1980); Pollard v. State, 244 So.2d 729 (Miss.1971); Broadus v. State, 205 Miss. 147, 38 So.2d 692 (1949); Grenada Coco Cola, et al v. Davis, 168 Miss. 826, 151 So. 743 (1934). Durham argues that the bad-check law cannot be applied to checks given to discharge a pre-existing debt, and since the payees “relinquished their property to Durham in reliance up on a consignment arrangement which required Durham to pay them after the auction sale[,] .... the checks were in payment of the pre-existing debts created by the consignment agreement.” Thus, Durham concludes that his convictions violated the constitutional ban on imprisonment for debt under Section 30 of the Mississippi Constitution.

¶ 9. However, as the State notes, section 97-19-55 was revised subsequent to the eases cited by Durham, and the amendments eliminated any distinction between a contemporaneous exchange or payment on a past-due account. Prior to 1983, the statute read that it was unlawful to issue a check “for the purpose of obtaining money, or any article of value, or to obtain services except payment or payments on past due accounts [.]” (Emphasis added). In 1984, the statute was amended to read “for the purpose of obtaining money, services or any article of value, or for the purpose of satisfying a preexisting debt or making a payment or payments on a past due account or accounts [.]” (Emphasis added). In 2002, this emphasized language was deleted entirely. Currently, the pertinent portion of the statute reads:

(1) It shall be unlawful for any person with fraudulent intent:
(a) To make, draw, issue, utter or deliver any check, draft or order to obtain money, delivery of other valuable property, services, the use of property or credit extended by any licensed gaming establishment drawn on any real or fictitious bank, corporation, firm or person, knowing at the time of making, drawing, issuing, uttering or delivering said check, draft or order that the maker or drawer has not sufficient funds in or on deposit with such bank, corporation, firm or person for the payment of such check, draft or order in full, and all other checks, drafts or orders upon such funds then outstanding[.]

Therefore, based on the legislative revisions to the statute removing this distinction, the holdings in the cases cited by Durham are not applicable. Accordingly, there is no merit to this assignment of error.

II. Whether the circuit court erred in denying Durham’s motion for a new trial.

¶ 10. Durham argues that a new trial was warranted as Jury Instruction S-2, which tracked the statutory language of Mississippi Code Annotated section 97-19-57(1), was unconstitutional since it “gave rise to a mandatory inference” of intent and shifted the burden to the defendant to prove his innocence. Section 97-19-57(1) states:

As against the maker or drawer thereof, the making, drawing, issuing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence and create a presumption of intent to defraud and of knowledge of insufficient funds in, or on deposit with, such bank, corporation, firm or person, provided such maker or draiver shall not have paid the holder thereof the amount due thereon, together with a service charge of Forty Dollars ($40.00), within fifteen (15) days after receiving notice that such check, draft or order has not been paid by the drawee.

(Emphasis added). Jury Instruction S-2 reads:

The Court instructs the Jury that if you find from the evidence and beyond a reasonable doubt the Defendant did not pay to the holder of the check the amount due together with the service charge, within fifteen (15) days after receiving notice that such check had not been paid by the drawee, then the making, drawing, issuing, uttering or delivering of said check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence and create a presumption of intent to defraud and of knowledge of insufficient funds in, or on deposit with, such bank.

(Emphasis added).

¶ 11. “The standard of review for the grant or denial of a motion for new trial is abuse of discretion.” Rutland v. State, 60 So.3d 137, 142 (¶ 18) (Miss.2011) (citing Irby v. State, 49 So.3d 94, 103 (¶ 27) (Miss.2010)). Under Uniform Rule of Circuit and County Court 10.05, a new trial may be granted by a court “[i]f the court has misdirected the jury in a material matter of law, or has failed to instruct the jury upon all questions of law necessary for their guidance.” URCCC 10.05(6).

¶ 12. Durham objected to the jury instruction at trial, citing Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), for the proposition that “[t]he Due Process Clause of the Fourteenth Amendment .... prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.” (Citations omitted). In Francis, the United States Supreme Court held: “A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.” Id. at 314.

¶ 13. Prior to Francis, the Supreme Court, in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), considered how to view jury instructions that contained such language in order to determine whether the language created a permissible inference or a mandatory presumption. In Sandstrom, the jury instruction read in part: “[T]he law presumes that a person intends the ordinary consequences of his voluntary acts.” Id. at 510, 99 S.Ct. 2450 (emphasis added). The Supreme Court reasoned that the jury might have interpreted the presumption as conclusive or as shifting the burden of persuasion to the defendant; therefore, the instruction was found to be unconstitutional. Id. at 524, 99 S.Ct. 2450. The issue before this Court is whether Jury Instruction S-2 created a mandatory presumption or merely a permissible inference. The State argues the jury instruction does not require the jury to presume any facts; rather, it merely creates a permissible inference. Upon review, we find that Jury Instruction S-2 did create a mandatory presumption.

¶ 14. The only Mississippi case cited by either party discussing the issue of prima facie presumption in a jury instruction is Moore v. State, 205 Miss. 151, 38 So.2d 693 (1949). In that case, the appellant, John Moore, was convicted of violating the Mississippi bad-check law. The jury was given an instruction, in accordance with the statute, which stated that the presentment of a check to a bank upon which it is drawn within thirty days after delivery and having insufficient funds, “is prima facie evidence of intent to defraud the payee thereof of the property for which the check was drawn.” Id. at 163, 38 So.2d at 695. Rather than discussing the issue as a distinction between permissive and mandatory presumptions, the Mississippi Supreme Court reasoned that “the necessity for resorting to presumptions disappears when there is direct and positive evidence upon the matter in issue.” Id. Therefore, the Moore court found that granting the jury instruction was error, stating:

While the State’s case was for the jury, yet under the record here it was not an unusually strong case[,] and the defendant produced a sufficient defense if believed by the jury. Under the facts here disclosed[,] we feel that it was prejudicial error for the trial court to grant to the State an instruction to the effect that a prima facie presumption may be indulged in by the jury in support of and in addition to the evidence for the State.

Id. at 164, 38 So.2d 696,.

¶ 15. In examining how other jurisdictions have addressed this issue, we find several instances where jury instructions similar to the one before us have been found to be violative of a defendant’s constitutional rights. In State v. Merriweather, 625 S.W.2d 256 (Tenn.1981), the Tennessee Supreme Court considered whether a jury instruction, which tracked the statutory language and contained the statutory presumption under the bad-check law, was constitutional. The Tennessee bad-check statute is nearly identical to Mississippi’s section 97-19-57 — only the time period for notice is different. As the trial judge in Merriweather “made no reference in his instructions to the rebuttable nature of the ‘presumption’ nor did he otherwise instruct the jury how they should read it[,]” the Tennessee Supreme Court found error. Id. at 257. The court concluded that the trial judge should have provided instructions that “include[d] explanations that there is no shifting of the burden of proof to the accused and that the triers of fact are free to draw or not to draw the conclusion of fraudulent intent and knowledge of insufficient funds from proof of (1) dishon- or of the check and (2) failure to pay after receipt of statutory notice.” Id. at 258.

¶ 16. In State v. Johnson, 233 Kan. 981, 666 P.2d 706 (1983), the Kansas Supreme Court reviewed a jury instruction which stated that a defendant’s failure to pay the holder the amount due within seven days “shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds[.]” Id. at 708. Additionally, the instruction stated: “As used in this instruction, ‘prima facie evidence’ is evidence that on its face is true, but may be overcome by evidence to the contrary.” Id. Citing Sandstrom, the appellate court, while upholding the validity of the bad-cheek statutory language, stated that a “jury must be clearly instructed as to the nature and extent of the presumption and that it does not shift the burden of proof to the defendant.” Id. at 711. Finding the trial judge failed to instruct the jury properly, the court reversed and remanded for a new trial. Id; see also State v. LaForge, 347 N.W.2d 247, 253 (Minn.1984) (“ ‘Prima facie’ is a legal term of art that no juror can be expected to understand as meaning anything but a shift in the burden of proof unless the trial judge carefully defines the term.”); State v. Ventre, 910 A.2d 190, 197 (R.I.2006) (A jury instruction describing defendant’s possession of firearm as prima facie evidence of intent “may well have been viewed by one or more of the jurors as being different from other types of evidence and as constituting a mandatory presumption.”).

¶ 17. Jury Instruction S-2 states that if the jury found that Durham had not paid the checks within fifteen days, this fact “shall he prima facie evidence and create a presumption of intent to defraud.” In Miller v. Norvell, 775 F.2d 1572, 1575 (11th Cir.1985), the United States Court of Appeals for the Eleventh Circuit held:

By using the term “shall,” the instructions command the jury to find intent to defraud if the jury finds that funds were not applied directly to the project.... A reasonable juror thus “could have understood” the instructions to require the jury to find intent to defraud, unless the defendant produced evidence to rebut that finding.

In LaForge, 347 N.W.2d at 255, the Minnesota Supreme Court noted: “Under Sandstrom [,] the possibility of such an interpretation is not cured by the other general instructions given or by the use of the permissive ‘may,’ especially in the face of a lack of any further qualification by the trial judge.” (Emphasis added). In the case before us, no explanation of the term “prima facie” was provided to the jury, nor was there any instruction that, regardless of the presumption, the burden of proof remained on the State to prove intent to defraud beyond a reasonable doubt. Accordingly, we find the language in Jury Instruction S-2 created a mandatory presumption, and the circuit judge failed to shift the burden of proof away from the defendant by instructing the jury regarding the “prima facie” inference.

¶ 18. Moreover, the giving of the instruction did not constitute harmless error. A Sandstrom error can be harmless beyond a reasonable doubt if “the faulty instruction applied to an element of the crime not at issue at the trial” or if the “evidence of guilt was ‘overwhelming.’” Miller, 775 F.2d at 1576 (citation omitted). As the United States Supreme Court summarized in Connecticut v. Johnson, 460 U.S. 73, 85-86, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983):

An erroneous presumption on a disputed element of the crime renders irrelevant the evidence on the issue because the jury may have relied upon the presumption rather than upon that evidence. If the jury may have failed to consider evidence of intent, a reviewing couri cannot hold that the error did not contribute to the verdict. The fact that the reviewing court may view the evidence of intent as overwhelming is then simply irrelevant. To allow a reviewing court to perform the jury’s function of evaluating the evidence of intent, when the jury never may have performed that function, would give too much weight to society’s interest in punishing the guilty and too little weight to the method by which decisions of guilt are to be made.

(Emphasis added).

¶ 19. In the present case, the issue of intent was a crucial element of the crime, and there were numerous references made by the State at trial in regard to section 97-19-57(l)’s fifteen-day requirement. The State remarked during its closing arguments:

And the law said — he just instructed you on this. If you don’t pay it within fifteen days, which [Durham] admitted he got the notice, then there’s a prima facie case that you had the intent to defraud. Prima facie — you may assume that. It’s a prima facie case. There’s an assumption.

However, Durham testified that he expected Community Bank to cover his checks as they had done in the past, and he stated: “I in no way when I wrote the checks and they were sent out by Trish for auction proceeds, I in no way knew that we were going to end up with some people who didn’t get paid.” Therefore, the submission of the erroneous jury instruction cannot be considered harmless error as Durham’s intent was disputed at trial, and the issue of intent directly affected the verdict.

¶ 20. Accordingly, we find that the circuit court erred in denying Durham’s motion for a new trial. We reverse the judgment of the circuit court and remand for a new trial in accordance with this opinion.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ„ CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶ 22. I respectfully dissent. See generally McBride v. State, 141 Miss. 186, 104 So. 454 (1925) (finding the presumption of intent constitutes a mere rule of evidence showing prima facie evidence of intent where one obtains money and fails to pay after proper notice of nonpayment).

¶ 28. I submit the jury instruction at issue creates a permissive inference instruction, not a mandatory presumption as argued by Jim Durham. The instruction permissively informs the jury if it finds certain evidence to exist, then such evidence gives rise to a prima facie evidence and presumption of intent to defraud. The jury instruction merely creates a presumption of intent when such intent is raised by the evidence if the jury found such evidence to exist.

¶ 24. Additionally, a review of the instructions as a whole reflects the court properly instructed the jury as to the elements of the charged offenses of writing a bad check with fraudulent intent and instructed the jury the State bore the burden to prove each element beyond a reasonable doubt. If there is any error in Jury Instruction S-2, which I find none, then it is harmless based on a review of the instructions as a whole. I would, therefore, affirm the conviction and sentence finding the evidence was legally sufficient to support the convictions of the defendant. See generally Lyles v. State, 12 So.3d 532 (Miss.Ct.App.2009).

      . See Miss. Const, art. 3 § 30.

      . Durham has not raised the issue of whether the statutory language of Mississippi Code Annotated section 97 — 19—57(l)(a) concerning the presumption of intent is constitutional; therefore, it is not before this Court on appeal.

      . See Instruction S-4A, S-5A, S-6A, S-7A (instructions on elements of each indicted offense and burden on the State to prove each beyond reasonable doubt). See also instructions of the court C-l through C-4, and defense instructions D-4 and D-7.

      . See Miss.Code Ann. § 97-19-55 (Supp. 2011).